While Massachusetts, as well as the rest of the country, continues to grapple with racial justice, the Supreme Judicial Court recently issued a ground-breaking decision expanding the scope of constitutional challenges pertaining to racially motivated motor vehicle traffic stops. The SJC finally eased the previously “infeasible” bar set for a defendant claiming that a traffic stop violated the principles of equal protection when the officer allegedly made the stop because of the defendant’s race (or other protected class). Commonwealth v. Long, 485 Mass. 711, 713 (2020). Recognizing that “the right of drivers to be free from racial profiling will remain illusory unless and until it is supported by a workable remedy,” Long establishes a revised test. Id. at 721.
Prior to Long, succeeding at challenging a traffic stop on equal protection grounds was incredibly difficult. To do so required a statistical analysis showing the particular officer’s prior traffic stops were the result of “selective enforcement predicated on race.” Commonwealth v. Lora, 451 Mass. 425, 437 (2008). However, obtaining such statistical information was nearly impossible due to “inadequate or inaccessible data.” Long, at 720. While a statistical analysis can still be used in demonstrating the requisite reasonable inference under Long, the new framework provides defendants with a “viable path” to ensure their rights are protected. Id. at 715.
Now, when a defendant seeks to suppress evidence pursuant to a traffic stop that claims to violate principles of equal protection, he must establish, by motion, “a reasonable inference that the officer’s decision to initiate the stop was motivated by race or another protected class.” This inference is met by pointing to “specific facts” from the “totality of the circumstances surrounding the stop.” Upon establishing this inference, the defendant is entitled to a hearing. Id. at 713. The Commonwealth then bears the burden of rebutting the inference – but, the government must “do more than merely point to the validity of the traffic violation.” Id. at 724. Unless the Commonwealth proves the stop was not motivated even “in part” by race, any evidence deriving from the traffic stop must be suppressed. Id. at 727.
What is a “reasonable inference?”
The SJC redefined “reasonable inference” in the context of challenging racially motivated traffic stops and explicitly stated that prior interpretations “do not control.” Id. at 723. In addition, “conclusive evidence is not needed.” Rather, the evidence must be such that a “reasonable person could rely” upon it to infer the defendant was discriminated against, “explicitly or implicitly,” by race. Id. at 724.
The “specific facts” – (at least) six factors to consider
In order to establish the necessary reasonable inference, a defendant must set forth specific facts based on the totality of the circumstances surrounding the traffic stop. With that, the SJC set out six potential factors while adding that “any relevant facts may be raised for the judge’s consideration.” Id.
The enumerated factors a court should consider are:
Patterns in enforcement actions by the particular officer – i.e. if a significant percentage of stops the officer made involved drivers of the same race for minor traffic violations;
Regular duties of the officer involved in the stop – i.e. an officer assigned to a specialized unit, such as a gang unit or the domestic violence unit, suggests that traffic enforcement is not a primary objective;
Sequence of events prior to the stop – i.e. if the office followed the vehicle for an extended period of time;
The manner of the stop – i.e. whether the officer’s conduct, or the duration of the stop, was consistent with enforcement of a motor vehicle violation;
The safety interests in enforcing the motor vehicle violation – i.e. if the driver’s conduct impacts public safety, such as operating under the influence, this can weigh against an inference; and
The specific police department’s policies and procedures regarding traffic stops – i.e. if an officer’s conduct deviates from specific policies. Id.
Per Lora, a statistical analysis of the particular officer’s traffic stops still remains available for the defendant as well.
Generally, “a defendant has a right to reasonable discovery” and he may move for “material and relevant discovery.” Here, the SJC explicitly stated this right applies equally to all claims of racially motivated stops – regardless of whether the defendant is pointing to the particular circumstances or is presenting statistical evidence. Id. at 725-726. With this, to support such a challenge a defendant should seek, and now more easily obtain, discovery in various forms: case-specific materials (incident reports, turret recordings, body camera footage); officer information (typical duties, recent citations and reports, disciplinary reports, trainings); department and unit information (policies and procedures, citations and reports); statistical discovery, third-party records (the Merit Rating Board maintains data regarding all citations in Massachusetts); and publicly available information (FOIA requests, statewide data reports, City of Boston reports).
Arguing for a more systemic approach to racial profiling, in her concurring opinion Justice Kimberly Budd wrote “the long, difficult history of racial discrimination in law enforcement demonstrates that, without more, making it easier for defendants to raise an inference that race was the basis for their stops in discrete cases will not be enough to dismantle the practice of racial profiling.” While this decision is significant, it only applies to motor vehicle stops initiated due to traffic violations. It is, however, a step forward – hopefully one that will become a touchstone in raising equal protection challenges in various forms of inequality in our criminal justice system.
If you have been involved in what you believe is a racially motivated stop or need assistance regarding a pending criminal charge in the Commonwealth of Massachusetts, do not hesitate to contact Lauren J. Weitzen.