by Eva Jellison
No Massachusetts case has explicitly incorporated the combined effects of the race and age of a juvenile in its legal analysis. There are some cases that recognize the impact of a defendant’s youth and others that recognize the effects of societal racism. See, e.g., Commonwealth v. Perez, 480 Mass. 562 (2018) (non-homicide youth sentencing); Commonwealth v. Warren, 475 Mass. 530 (2016) (inference to be drawn from the flight of a Black man from police in an urban area). But there is undoubtedly something lost in not recognizing that youth and race can combine in a manner not adequately addressed by separate analyses. Recently, in Commonwealth v. Evelyn, 485 Mass. 691 (2020), the SJC missed an opportunity to incorporate this compound effect into its Article 14 search and seizure jurisprudence.
Article 14 of the Massachusetts declaration of rights provides protection against unreasonable search and seizure: “Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions.” The SJC has repeatedly interpreted Article 14 to be more protective than the analogous Fourth Amendment to the U.S. Constitution. See, e.g., Evelyn, 485 Mass. at 697; Commonwealth v. Stoute, 422 Mass. 782 (1996) (point of seizure). Seizure occurs when a reasonable person would believe that she is not free to leave a police interaction. Evelyn, 485 Mass. 696. The police may only legally seize someone whom they have reasonable suspicion to believe has committed, is committing, or is about to commit a crime. Id. at 704.
In Evelyn, the SJC declined to incorporate the combination of race and youth into its Article 14 jurisprudence, despite extending its recognition of the relevance of race and youth separately. Tykorie Evelyn was a seventeen-year-old boy at the time he was seized and pat frisked by Boston police officers. He was about a half mile away from a shooting that had occurred thirteen minutes earlier, he refused to engage with officers, and he made three movements that the officers identified as consistent with gun possession. Id. at 694–95. He made two arguments that relied on the combination of his youth and race: (1) that consideration of whether someone would feel free to leave must take into account the combination of the defendant’s age and race, and (2) that turning away from officers (labelled “blading”) should have been viewed as a nervous behavior informed by Tykorie’s race and youth, rather than relied upon as a characteristic of an armed gunman. An amicus curiae brief submitted by the Charles Hamilton Houston Institute for Race & Justice of Harvard Law School and the NAACP Legal Defense & Education Fund also alerted the Court to these issues.
As to Tykorie’s first argument, the SJC incorporated youth, drawing from J.D.B. v. North Carolina, 564 U.S. 261 (2011), which held that youth was relevant to the custody analysis under Miranda v. Arizona, 384 U.S. 436 (1966). The SJC noted that J.D.B. addressed an inquiry similar to the point-of-seizure analysis: whether “an individual has been compelled to interact with the police.” Evelyn, 485 Mass. at 698.
But the SJC declined to allow Tykorie’s blackness to add to the analysis. Id. at 700. More specifically, the SJC “agree[d] that the troubling past and present of policing and race are likely to inform how African-Americans and members of other racial minorities interpret police encounters.” Id. at 701. But the Court concluded that including race in the seizure analysis intruded upon the ability to “maintain an objective standard so that officers can determine in advance whether the conduct contemplated will implicate the Fourth Amendment or art. 14.” Id. at 702. In so doing, the SJC “attempt[ed] to focus attention on the issue of race, while not establishing bright-line rules that potentially could do more harm than good.” Id. at 703. It appears that the harm the SJC sought to avoid was imputing a particular set of life experiences and beliefs formed from those experiences to an individual with a different set of experiences and beliefs. Id. at 702–03, quoting United States v. Easley, 911 F.3d 1074, 1081–82 (10th Cir. 2018) (noting that members of racial categories do not all share the same experiences and beliefs).
This reasoning is unsatisfying. First, it appears to conflict with the Court’s prior reasoning in Warren, which it extended in Evelyn. In Warren, the SJC held, without any invocation of federal law, that any type of “nervous or evasive behavior” by a Black person in an urban area must be “significantly discount[ed].” Evelyn, 485 Mass. at 709. This is because “a long history of race-based policing likely will remain imprinted on the group and individual consciousness of African-Americans for the foreseeable future.” Id. at 708. Rather than looking to the Fourth Amendment seizure analysis to decide whether to incorporate race into the Article 14 seizure analysis, it would have been more consistent for the SJC to apply the analysis of race that it had previously adopted in Warren and maintained in Evelyn.
Second, by adopting age as a factor, but not race, the SJC missed an opportunity to “ensure that the justice provided to African-Americans is the same that is provided to white Americans.” Ralph D. Gants, et al., Letter from the Seven Justices of the Supreme Judicial Court (June 3, 2020). Primarily,
[e]xperience suggests that a child’s race would have as much impact on a child’s perception of whether he was free to leave as would his age. Throughout American history, blacks have had a tenuous relationship with police. In every critical era—slavery, Jim Crow, lynching, and the contemporary era of mass incarceration—blacks have perceived police to be proponents of discrimination and subordination through violence and intimidation. Today, it is difficult to imagine any black person who is immune from the persistent national coverage of police-on-black killings.
Kristin Henning, THE REASONABLE BLACK CHILD: RACE, ADOLESCENCE, AND THE FOURTH AMENDMENT, 67 Am. Univ. L. Rev. 1513, 1530 (2018). And, because of this history, “Black families have long been proactive in transmitting norms on dealing with the police to their children.” Id. at 1531. Further, children, and specifically Black children, are policed both in their schools and on their streets. Id. “These experiences, combined with developmental features of adolescence, leave black youth particularly vulnerable to the psychological pressures of police presence. As such, black youth are even less likely than other youth and adults to believe they are free to leave and decline police contact.” Id. at 1532–33.
Indeed, Black and brown children live in a different Massachusetts than white children. Data provided to CPCS by the Department of Youth Services indicated that, as of April 23, 2021, eighty-two percent of the children detained, confined, or committed did not identify as white. In the last ten years, Boston Police Department data indicate disproportionate stops of Black men, Evelyn, 485 Mass. at 700 n. 6 & 7, a trend which continued even during the unprecedented COVID-19 pandemic during which 30% fewer stops occurred than the previous year. Tori Bedford, While Boston Police Street Stops Decrease, Black People Are Still Stopped The Most, GBH News (April 18, 2021). A recent report about the City of New Bedford revealed that “[p]olice are clearly targeting young Black males[.]” We are the Prey; Racial Profiling and Policing of Youth in New Bedford, Citizens for Juvenile Justice (April 2021). Further, “[i]n Massachusetts, black female students are roughly 3.9 times more likely to be disciplined than their white counterparts.” Protecting Girls of Color from the School-To-Prison Pipeline, Appleseed Network (2019) (analyzing data from the 2015-16 school year). And the data from the 2018-19 school year evinces racial disparity in school discipline across communities with large populations of Black and brown children. These data indicate that race should be broadly considered in criminal law analyses.
Further, ignoring race but accepting age as relevant to the seizure analysis will only exacerbate the racial disparities in the juvenile system. People, including police officers, see Black children as older than they actually are. Phillip Atiba Goff, et al., The Essence of Innocence: Consequences of Dehumanizing Black Children, 106(4) Journal of Personality and Social Psychology 526, 532 (2014) (4.53 years older for Black boys suspected of felonies). This can mean that, unlike children of different races, Black children would lose the protection afforded by Evelyn well before they become adults and well before their white counterparts, perhaps as young as 13 or 14. Id. Evelyn is only helpful in reflecting young people’s developmental status when officers know or should know that these children are under the age of eighteen. Evelyn, 485 Mass. at 700 (not considering Tykorie’s age because he was six feet tall and his features were obscured by clothing and darkness).
The SJC’s rejection of Tykorie’s second argument was implicit. Nowhere in its “Evidence of a Firearm” section does the SJC mention the word race. Evelyn, 485 Mass. at 705–08. But the opportunity was there. At oral argument, Justice Kafker queried whether the police would have been able to stop a 75-year-old man, or a 75-year-old woman in the same circumstances. Implicit in Justice Kafker’s question is the idea that older people and women are less likely to be involved in crime, or at least less likely to be in possession of a firearm, and that assigning criminality to a seemingly innocent act might therefore be unreasonable as applied to an old man or woman.
Justice Kafker was on to something – but as applied to race in addition to age and gender. Social psychologists have observed that Black boys are perceived as less innocent than their white and Latino counterparts. See generally Atiba Goff, supra. Thus, when an officer sees the actions of a Black boy (or someone he perceives to be a Black boy), the officer could be seeing criminality simply because the boy is young and Black. This is especially important in the reasonable suspicion analysis, because officers frequently testify that things that a white woman in her thirties does all the time – clutching an object in her pocket on a cold day, adjusting her pants, or checking to see if her cellphone, which may be too big to fit in her pocket, is securely in her waistband – are an indication of firearm possession.
“[S]urely a stop based on race is an unreasonable seizure under art. 14,” Commonwealth v. Long, 485 Mass. 711, 754 (2020) (Budd, J., concurring), and the SJC is right to be concerned about how to apply an objective standard. It is very difficult to assess how an officer’s implicit (or explicit) bias may have operated in any given situation. But that does not mean that the appellate courts cannot or should not help to ensure that Black children are not stopped, grabbed, and harmed because of that bias. Warren and Evelyn provide a helpful framework for incorporating societal realities about race into legal analysis.
Additional solutions also exist. A recent dissent by Justice Milkey suggested that courts could increase the burden on the Commonwealth and police officers to demonstrate that the conclusions from their observations have robust non-race-based underpinnings. Commonwealth v. Karen K., 99 Mass. App. Ct. 216, 233 n.16 (2021) (Milkey, J., dissenting). For example, the Commonwealth could provide evidence of training based on scientific methodology, and not the mere recitation of talismanic words. Or the Commonwealth could provide an “empirical basis for judging the accuracy of [the officer’s] predictive abilities,” such as information about the percentage of persons stopped on suspicion of firearm possession who actually possessed a firearm. Id.
The SJC may have missed an opportunity in Evelyn, but the door remains open to move away from analyses that disproportionately burden Black children and strive toward more equal justice.
This article is dedicated to the late Chief Justice Ralph Gants for teaching Attorney Jellison to seek justice and treat people well.
Eva Jellison (she/her) is a criminal defense attorney and partner at Wood & Nathanson, LLP. She primarily represents adults and juveniles in appellate, post-conviction and post-adjudication matters.