The Troubling Pro-Criminal Legal Standard of the St. Petersburg Times
“The wicked flee when no man pursueth” (Proverbs 28:1)
The ultra-liberal members of the editorial board of the St. Petersburg Times believe that criminals who run from the police should be allowed to get away with it, notwithstanding United States Supreme Court precedent and the law passed by the Florida Legislature. That is the import of the December 20, 2009 Times editorial titled, “A troubling double legal standard.”
What bothers the leftists at the Times is that police operating in a high-crime area are constitutionally permitted to pursue and detain individuals who engage in headlong flight upon the approach of the police, and that in Florida persons who do flee from the police can be charged with the midemeanor of Obstructing or Opposing an Officer Without Violence. In other words, the editors at the Times do not like the fact that the police may take into consideration that the neighborhood is infested with individuals engaged in criminal activity in deciding to pursue someone who flees from them, and that the police can criminally charge a fleeing individual with obstruction.
Plainly, the law-abiding citizens who have to live and work in high-crime neighborhoods want the police to pursue and detain persons who flee from them as part of a sustained law enforcement effort to reclaim those streets from the criminals. The United States Supreme Court, taking a common-sense approach to the law, declared in Illinois v. Wardlow, 528 U.S. 119 (2000) that the police can do just that.
The facts of Wardlow are as follows: William “Sam” Wardlow fled upon seeing a caravan of police vehicles converge on an area of Chicago known for heavy narcotics trafficking. When Officers Nolan and Harvey caught up with him on the street, Nolan stopped him and conducted a protective pat-down search for weapons because in his experience there were usually weapons in the vicinity of narcotics transactions. Discovering a handgun, the officers arrested Wardlow. The Illinois trial court denied his motion to suppress, finding the gun was recovered during a lawful stop and frisk. He was convicted of unlawful use of a weapon by a felon. In reversing, the State Appellate Court found that Nolan did not have reasonable suspicion to make the stop under the United States Supreme Court’s interpretation of the Fourth Amendment in Terry v. Ohio, 392 U.S. 1 (1968). The Illinois Supreme Court affirmed, determining that sudden flight in a high crime area does not create a reasonable suspicion justifying a Terry stop because flight may simply be an exercise of the right to “go on one’s way.”
The United States Supreme Court reversed the Illinois Supreme Court and held that the officers’ actions did not violate the Fourth Amendment’s prohibition on unreasonable searches and seizures. The conclusions of the Court in Wardlow were as follows: A brief encounter between a citizen and a police officer on a public street, is governed by Terry, under which an officer who has a reasonable, articulable suspicion that criminal activity is afoot may conduct a brief, investigatory stop. While “reasonable suspicion” is a less demanding standard than probable cause, there must be at least a minimal level of objective justification for the stop. An individual’s presence in a “high crime area,” standing alone, is not enough to support a reasonable, particularized suspicion of criminal activity, but a location’s characteristics are relevant in determining whether the circumstances are sufficiently suspicious to warrant further investigation. In this case, moreover, it was also Wardlow’s unprovoked flight that aroused the officers’ suspicion. Nervous, evasive behavior is another pertinent factor in determining reasonable suspicion, and headlong flight is the consummate act of evasion. In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences from suspicious behavior, and the Court cannot reasonably demand scientific certainty when none exists. Thus, the reasonable suspicion determination must be based on commonsense judgments and inferences about human behavior. Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further. Such a view of the law is consistent with the notion that an individual, when approached, has a right to ignore the police and go about his business. Unprovoked flight is the exact opposite of “going about one’s business.” While flight is not necessarily indicative of ongoing criminal activity, Terry recognized that officers can detain individuals to resolve ambiguities in their conduct, and thus accepts the risk that officers may stop innocent people. If they do not learn facts rising to the level of probable cause, an individual must be allowed to go on his way. But in this case the officers found that Wardlow possessed a handgun and arrested him for violating a state law.
The Times is troubled by the application of Wardlow to C.E.L. v. State, — So.3d —-, 2009 WL 4841076 (Fla. 2009), decided December 17, 2009, where the issue presented was whether a juvenile’s continued flight within a high-crime area, in defiance of a police officer’s verbal order to stop, constitutes the offense of resisting, obstructing, or opposing an officer without violence under section 843.02, Florida Statutes. In a 5-1 decision, the Florida Supreme Court held that it did.
However, one of the leftists on the court, Justice Pariente, issued a concurring opinion concurred in by two other liberal members of the Court in which she lamented being forced to follow the law and not engage in judicial legislating, pled for fellow liberals in the state legislature to change the law:
While I recognize that this Court is required to follow the plain meaning of the statute, and generally cannot substitute its view of the better public policy choice, I find this case to be extremely troubling because of its undeniable effect of adversely impacting teenagers who live in neighborhoods considered by the police to be “high-crime areas.” I strongly urge the Legislature to act to prevent the potential for disparate and unnecessary criminalization of otherwise innocent conduct that ultimately impacts those who live in “high-crime” areas differently than those who do not. [Footnote omitted]
and concluded by stating that she was “troubled by the ultimate impact of this decision.”
Pariente, like most liberals do, casts the argument in terms of race and class, notwithstanding the fact that neither has anything to do with either the development or implementation of the law.
The most radical leftist on the court, Justice Quince, issued a dissent in which she cast the matter in terms of race and class, declared:
I cannot believe that we as a society have come to the point where we are willing to make criminals of people, especially our young people, based on where they live.
and decried the “draconian” result of convicting a person of the misdemeanor crime of obstruction for fleeing from the police in such circumstances. She, as Pariente, closed with a plea for legislation:
I urge the Legislature to address this very troubling and dangerous matter. This can be done by making clear that resisting or obstructing an officer must be based on factors other than mere flight from police. We simply cannot allow a generation of young people to be further victimized because of their often justifiable distrust of law enforcement and because they are unfortunate enough to live in a so-called “high-crime neighborhood.”
The “it’s us against the police” argument made by the liberals on the bench, implying that it is the police who decide whether or not an area is “high-crime,” is disingenuous. In fact, it is the burden of the State (i.e., the prosecutor) to prove this fact and up to the trier of fact (e.g., the presiding judge at a hearing on the defendant’s motion to suppress) to find this fact in open court — and not before the accused is afforded the full panoply of procedural and due process rights, including cross-examination of the State’s witnesses and the opportunity to present evidence in rebuttal. All this must occur before the defendant can be held responsible for his or her conduct.
More specifically, the justices who expressed concern about having to follow the law in upholding the adjudication of delinquency of C.E.L., and their allies on the Times editorial board who now clamor for legislative action, know or should know that a finding of “reasonable suspicion” is always a totality-of-the-circumstances determination, that “high-crime area” is only one factor in a determination of reasonable suspicion regarding a fleeing individual, and that, in fact, police routinely charge — and prosecutors routinely prosecute — a great many individuals for obstruction who flee in areas that are not deemed to be high-crime areas.
The leftists are forever using the technique of turning lawbreakers into victims of the police. That is the technique that the Times is now employing in its response to the minority views of some of the leftists on the state supreme court as it professes the view that a person who obstructs a police investigation in a high-crime area by fleeing should not be charged with a crime.
This poses an important public policy question: Is it better for society to encourage people to obey the commands of police who are conducting a lawful investigation in the community and to co-operate with the police in their investigations, or is it better to encourage people to withhold that co-operation by running away? Should criminals with outstanding warrants be encouraged to run from the police? Should criminals who use runners as decoys be encouraged to do so by the knowledge that these runners will face no legal consequences if caught? Should anyone who wants to have some fun at the expense of the police be able to run away and not suffer any consequences? Finally, do law-abiding citizens who live and work in high-crime areas deserve reduced police protection?
The problem with leftists is that they see everything in terms of class struggle and racial strife, cannot resist creating crises where none exist, and offer no solutions to the major problems facing the community. They divide everyone along class lines, even though there are no fixed classes in the United States, and along lines of race, even where there is no racial animus present or where race is not even a factor. They are also economical with the truth, believing as they do that use of the “acceptable truth” is a proper means to achieve any end they deem “just” in their missionary zeal to promote leftism. The Times is no exception. In the cases of Wardlow and C.E.L., for example, there is no evidence that either was pursued and detained on the basis of who or what he was, but those facts are apparently of no consequence to the editorial board. The Times editorial also does not inform its readers either that the police were patrolling the complex where they found C.E.L. in response to a prior complaint regarding drugs and trespassing, or that C.E.L. had an outstanding warrant for his arrest that was discovered after he was apprehended.
The wicked such as Wardlow and C.E.L. do in fact flee when no man pursues them, and too much of our community is controlled by criminals who make law-abiding citizens hostages in their own homes. The Times editorial board is acting contrary to the best interests of the community when it asks the Legislature to create a right to run from the police in high-crime areas. It also is an insult to law enforcement officers who work hard for public safety. The Legislature should ignore the Times and anyone else who advocates such a troubling legal standard.