The Massachusetts Supreme Judicial Court heard oral arguments on March 3rd in the case of Commonwealth v. Edward Long, SJC-12868, that deal with the issue of disparity treatment and discriminatory enforcement of traffic laws by the Boston police.  In this case, the defense lawyer presented a compelling statistical case that race played a role in the traffic stop.  Under the Equal Protection Clause of the 14th Amendment and Article 1 Section 10 of the Massachusetts Declaration of Rights, a defendant who shows discriminatory enforcement of the laws can have the case dismissed.

What happened in the Long Case?  

The Long case involved two officers on the gang unit who were essentially profiling cars, finding minor reasons to stop the car, with the hopes of discovering further evidence that would lead to an arrest.  Two officers were involved in the stop of the defendant, Officer Rodriguez and Lopes.  The defendant was stopped for an expired inspection sticker after the officers randomly ran his plate, according to their testimony at the motion hearing.  Officer Rodriguez testified that giving traffic citation was not a primary concern of the gang unit; he testified that he gave out 5 citation out of 1000 cars that he stopped for traffic violations.  He testified a lot of arrests start out as average traffic stops.

The defendant Long was driving a Red Mercedes SUV traveling along Savin Hill Avenue in Boston.  Officer Rodriguez and Lopes follows the SUV and ran its plate even though they saw no traffic violation.  The officers testified that they stopped the SUV to address the inspection sticker.  The defendant did not have a license but only a permit; the officer recogznied the defendant from the gang database.  In running the defendant’s information, they discovered that he had a suspended license and a default warrant out of Lynn District Court.  The officers ordered the defendant out of the car and cuffed him, eventually finding a firearm after conducting what the officers claimed was an inventory search.

Did the officers have a valid basis for an inventory search?  

In addition to the issue of racial profiling in enforcing traffic laws, the SJC will also be asked to address whether the inventory search was valid.  Under the Fourth Amendment and Article 14, a police officer is allowed to conduct a search of the vehicle for the purposes of taking an inventory of its contents to protect the officers from claims of theft.  Several conditions must be met for a valid inventory search.  First, it must be done pursuant to a written policy.  Second, an inventory can only be performed if the car must be impounded.  If the car does not need to be towed, an inventory search would be invalid. The goal of the inventory search cannot be to search for incriminating evidence.  In Long, the defendant argued that the car did not need to be impounded, negating one of the required elements of a valid inventory search.   At the motion hearing, the motion judge found the search of the SUV appropriate because there was a risk of theft to the SUV in the area.  The Commonwealth did not offer any evidence that the area was a high crime area for motor vehicle thefts.  The officer testified that he thought the Boston police inventory policy required an inventory search if the police were leaving the vehicle and not towing it.  The officer did not make any effort to contact the owner to ask if she could pick it up or would want it towed.  The SJC could find that the inventory search was invalid and decline to reach the more important issue with the racial motive for the stop.  While I believe they will find the search was not a valid inventory search, I would expect the Court to address the Equal Protection claim as well.

What evidence was used to show a racial disparity in enforcement of the traffic laws?  

In the Long case, the defense presented statistical evidence to show that the officer’s stop was based on race.

The defense called Mary Fowler a Mathematics Professor at Worcester State University to show that Officer’s Rodriguez’s and Lopes stops were motivated in part by race.  She relied on two sets of statistics.

Statistics used to prove Racial intent for traffic stops

She looked at the Field Interrogation Observations from the two officers for a period of 6 years.  The second set of dat was all traffic stops issues by the two officers and the data was from the Merit Rating Board of the Massachusetts Registry of Motor Vehicles.

The Professor looked at whether the probability of being stopped was increased based on race.  The Boston police had a rule that a Field report shall be submitted for any interaction, stop, frisk an observation or encounter.

Based on the data, the defense expert found that 80% of those stopped were black.  The Professor compared the percent stopped with the population of the area.  The black population in the area was 44.67.  The professor found that the statistics showed that race played a role in the traffic stop.

Implication of the Long case for equal treatment of Black Males by police departments 

The Long case is a critical case under the Equal Protection Clause because the SJC will redefine the standard that a defendant has to meet to show an Equal Protection Violation.  The standard was initially set by the SJC in the case of Commonwealth v. Lora, 451 Mass. 425 (2008).  

In the Lora case, The SJC held that the Equal Protection Clause of the Fourteenth Amendment and Article I Section 10 prohibit discriminatory application of impartial laws.  If it can be shown that the laws are applied in a discriminatory manner, suppression of the evidence is the appropriate remedy.  The SJC indicated that statistics alone can be enough for the defendant to meet their burden of showing a discriminatory pattern.

The Lora Court indicated that an arrest or prosecution based on probable cause is ordinarily cloaked with a presumption of regularity.  Since it is presumed that there is a none discriminatory intent, the defendant has the initial burden of showing selective enforcement.  To meet this initial burden the Lora Court stated that the defendant must raise a reasonable inference that a broader class than those prosecuted has violated the law and that a failure to prosecute was either consistent or deliberate and that those not prosecuted was based on an impermissible classification.  Once the defendant has met this burden, the Commonwealth must rebut that inference or suffer dismissal of the complaint.

In the Long case, it was argued that the Commonwealth did not provide rebuttal evidence.  The Commonwealth contended that it was not prepared for stage two of the hearing because it did not believe that the defendant would meet the first prong of the Lora framework.  At oral argument, the Commonwealth additionally argued that the Lora framework is unclear as to how the Commonwealth would rebut that presumption so that if the SJC found stage one was satisfied, the Court should remand to the Suffolk Superior Court with instructions on what evidence must be shown under stage 2.

SJC may require statistics to be kept by law enforcement as a way to ensure Equal Treatment under the law

At oral argument, the defense asked that the Court require police departments to keep statistical data or have that potential lack of data used against the department at hearing on this issue.  The defense argued that police departments should lose the presumption of regularity if they do not keep the data.

The SJC did discuss the fact that these were not regular traffic stops.  Since the stops were from gang officers, the SJC suggested that the numbers could be off as opposed to if this were random stops by traffic officers.

The statistical disparity in Long was extremely compelling.  I would expect that the SJC will find that the defendant satisfied the initial showing.  I would expect the SJC will remand the case to the Superior Court with instructions on how to conduct the stage II inquiry. It would be appropriate to find the Commonwealth did not meet its burden and suppress the evidence.

The normal rule is that a motion to suppress hearing deals with all the issues.  Motions to suppress are not typically bifurcated so that if one parts is met you have a separate hearing on another date.  If the Commonwealth does not argue an issue, the Court would usually find they did not meet their burden.  However, I do not expect the SJC to decide the case on that technical grounds, and would anticipate a remand.

Why is Long a major case?  

The case will be important because it will clarify how a defendant can show an unfair application of the law based on race.  I would expect that the SJC will require police departments to keep statistics of their arrest to rebut the presumption under the second stage of its Lora test.  You can find the oral argument in Long on the Suffolk University Law School website.

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