Abstract

Excerpted From: Patrick Maley, Wardlow after Black Lives Matter: Using a Protest Movement to Establish a Colorable Equal Protection Challenge to Supreme Court Precedent, 54 Seton Hall Law Review 1437 (2024) (213 Footnotes) (Full Document)

Illinois v. Wardlow was wrong the day it was decided, and the case's precedent has had disastrous consequences. Sam Wardlow was a Black man standing in a Chicago neighborhood that police considered a high-crime area. When he saw a caravan of police vehicles approach, he ran. Their suspicion whetted, Officers Nolan and Harvey of the Chicago Police Department's Special Operations Section exited their cars and gave chase, eventually cornering Wardlow, frisking him, finding a .38-caliber handgun in his possession, and arresting him.

As the case made its way through the Illinois state system and eventually to the US Supreme Court, the issue remained the same: Were Officers Nolan and Harvey justified in detaining and searching Wardlow? Put more technically: Did Officers Nolan and Harvey have reasonable suspicion to conduct the investigatory detention of Wardlow that resulted in discovering the gun and thereby developing probable cause for his arrest? The Illinois trial court considered the stop lawful and convicted Wardlow on a weapons charge, but the intermediate appellate court reversed, refusing to find reasonable suspicion. The Supreme Court of Illinois affirmed that holding. In a 5-4 decision authored by Chief Justice Rehnquist, the United States Supreme Court reversed, finding no Fourth Amendment violation. According to Chief Justice Rehnquist, contextual factors like the neighborhood's reputation and Wardlow's so-called “unprovoked flight” were sufficient contributors to the reasonable suspicion analysis to justify the officers' actions.

Although the Wardlow Court refused to establish any bright-line rules regarding police stops, the case's precedent has become clear in the subsequent decades: courts credit officers' assessment of a neighborhood's reputation for crime and suspects' actions when evaluating the legitimacy of a police officer's decision to stop a person on the street for temporary detention, questioning, searching, and potential arrest. Like Sam Wardlow, a person who takes flight at the sight of police or even acts furtively is subject to a stop and search from which the Fourth Amendment will not protect them. If an officer sees two people make a hand-to-hand exchange in a neighborhood that the officer's experience suggests is a market for illegal drug sales, Wardlow legalizes a stop and search of both individuals. The primary criteria in assessing the legality of encounters such as these are the officer's training and experience, to which courts regularly defer. In short, the Wardlow doctrine empowers police to make informed but subjective judgments of any given public action in such a way that limits individuals' Fourth Amendment rights against unreasonable searches and seizures.

With the Wardlow doctrine in place, over-policing of minority communities has only increased. One extensive study shows that over a five-year period in New York City, the high-crime-area criterion in particular was deployed haphazardly, ineffectively, and discriminatorily. This Comment first joins the chorus of critics challenging both the constitutional validity and practical benefits of the Wardlow doctrine. As Justice Stevens articulated when dissenting in Wardlow (joined by Justices Souter, Ginsberg, and Breyer), the doctrine is unconstitutional in conception. And as scholars and jurists have established in the years since, the doctrine is discriminatory in practice, targeting Black and Brown communities for enhanced police activity and lessened constitutional protections. Although endorsing these familiar critiques, this Comment also challenges the most commonly proposed solution: increased reliance on empirical data like crime rates to justify the stops that Wardlow permits. If an officer can use “high-crime area” to legitimize a stop, the argument goes, then that criterion should be as objective as possible. In short: if American law is stuck with Wardlow, data should ground its effects. The argument suggests that since crime begets crime, certain crime-ridden neighborhoods will produce higher crime and justify enhanced policing for the public welfare. But this Comment shows that data will not save Americans from Wardlow. Statistics fail to justify Wardlow, first, because crime rates depend less on criminal activity than they do on patterns of policing and, second, because the notions of racially blind classifications of neighborhoods as high-crime and of presumed wrongdoing by suspects who are evasive of police are fallacies, which has become clearer than ever thanks to the work of the Black Lives Matter movement.

As an alternative to a statistical modification of Wardlow, this Comment contemplates how an equal protection challenge might dismantle the precedent by showing that the doctrine unconstitutionally targets Black people for enhanced policing and limited constitutional protections. In part, this challenge can follow the model of Floyd v. City of New York, the District Court for the Southern District of New York case that held New York City liable for violating citizens' Fourth and Fourteenth Amendment rights through the police department's stop-and-frisk policy. The Floyd plaintiffs were four named parties who alleged specific instances of unlawful stop-and-frisk, and who sought “to represent a certified Plaintiff class consisting of all persons who have been or will be subjected by NYPD officers” to stop-and-frisk tactics. The plaintiffs built their case on historical, statistical, and empirical analysis. therefore stands as a concrete example of the strategy that this Comment considers, but important distinctions remain: the Floyd litigation turned on the experiences of specific plaintiffs within a limited geographic scope grounded in empirical data demonstrating biased policing. This Comment does not offer a comparable litigation strategy. While evidence below illuminates Wardlow's discriminatory aftermath, the general discussion herein is too diffuse to provide a targeted challenge to the doctrine.

Instead, recognizing that such a challenge must be complex and multifaceted, this Comment examines how the work of the Black Lives Matter movement can contribute valuably to an impact litigation project targeting the Wardlow doctrine. As was true in Floyd, litigators can leverage the Fourteenth Amendment to protect the Fourth Amendment, but any equal protection challenge necessitates demonstrating discriminatory purpose at the root of discriminatory practice. Floyd accomplished that with hard data, but as a more sprawling and high-level doctrine, Wardlow is susceptible to an attack of its theoretical underpinnings. The Black Lives Matter movement and Black critical thought more broadly can fuel that attack, arming impact litigators with the sociological context necessary to strengthen their most pointed strikes at the doctrine. At bottom, this Comment seeks to demonstrate how an archive of Black literature and thought can contribute to a comprehensive litigation strategy targeting the Wardlow doctrine. In a constellation of statistical analysis, historical scholarship, and sociological theorization, the discriminatory effects of the Wardlow doctrine sufficient to infer discriminatory purpose begin to emerge into focus.

Part II of this Comment examines the history and development of the jurisprudence on which Wardlow stands. Part III offers an overview of the various tracks through which scholars and judges critique the Wardlow doctrine. Part IV challenges the familiar notion that increased reliance on data or technology can assuage the failures of the Wardlow doctrine. Part V articulates how the work of the Black Lives Matter movement and related concepts can contribute to a powerful equal protection challenge to Wardlow. Part VI concludes by examining a recent failed challenge to Wardlow on the state level, suggesting that the case shows the limitations of attacking the doctrine exclusively on Fourth Amendment grounds without the support of the Equal Protection Clause.

[. . .]

The Supreme Court of Maryland recently took up the question of Wardlow in Washington v. State, whose facts are materially similar to Wardlow, Goldsmith, and any number of other cases: a Black man ran at the sight of police, who gave chase, apprehended him, found a gun, and made an arrest. Predictably, the court upheld the trial court's denial of a motion to suppress, affirming the appellate court's explicit refusal to “diverge from the Supreme Court's decision in Wardlow.” Significantly, though, the appellant's brief used a strategy similar to that which this Comment advocates: deploying a combination of statistical and sociological evidence growing out of the Black Lives Matter movement to argue that Washington's unprovoked flight from the police should not contribute to reasonable suspicion. The brief grounded its argument in Justice Stevens's opinion and cited cases from around the country that show a softening of the Wardlow doctrine's characterization of flight from the police. “The Wardlow Court issued its opinion over two decades ago. In the years since then, our understanding of the lived reality of BlackAmericans has come a long way,” pointed out the brief, after citing statistics and empirical data about the danger and fear attendant upon Black encounters with police. The court embraced this line of reasoning, opening its opinion by acknowledging that “[i]n recent years, the Baltimore Police Department has experienced a series of unsettling events, giving rise to what has been described as an increased public awareness of police misconduct and a fear of police officers by some residents of Baltimore City, particularly those who are AfricanAmerican,” and then spending a long second paragraph recounting specific injustices, including the death of Freddie Gray.

But the appeal failed. The court reasoned that it was applying Wardlow “as the language in the majority opinion and Justice Stevens's opinion indicates it was intended to be applied: as a fact-based analysis of the totality of the circumstances.” And while the court said it “reviewed and considered Washington's arguments [about legitimate fear of police provoking flight] with care and [did] not take lightly his contentions,” the opinion used this logic only to suggest that flight and its context should be considered a factor in a Terry stop, and not a bright-line rule. The court made similar analytical moves regarding the question of high-crime areas. At bottom, then, the court held “Detective Rodriguez had reasonable suspicion to stop Washington. The nature and circumstances of Washington's unprovoked flight in a location that was a high-crime area lead us to this conclusion.” The court considered and acknowledged issues surrounding the Black Lives Matter movement, but Wardlow won the day.

What was missing from Washington was equal protection. Nowhere did the litigation lean in any way on the Fourteenth Amendment, choosing instead to charge once more unto the Fourth Amendment's Terry and Wardlow breach. The Washington litigators made valuable use of sociological context and seemed to have made at least some inroads into the consideration of the court, but the case shows just how foreclosed the Fourth Amendment avenue to a Wardlow challenge really is. As this Comment has suggested, the Fourteenth Amendment must be leveraged in service of the Fourth Amendment. Terry and Wardlow have chipped away at the Fourth Amendment to such a degree that there remains little footing for a direct rebuttal. With the help of the Black Lives Matter movement, the Equal Protection Clause might very well provide the recourse that justice requires.

Ultimately, statistical analysis of the Wardlow doctrine's discriminatory impact joined with the sociological context that the Black Lives Matter movement provides can be crucial elements of a litigation strategy that eventually topples Wardlow under the weight of an equal protection challenge. Even though Wardlow was wrong the day it was decided, the avalanche of racial awareness that the Black Lives Matter movement and others have advanced over the more than two decades since the doctrine's establishment equips advocates with the tools necessary to advance the position of Justice Stevens's opinion over the case's majority. The work of the Black Lives Matter movement can show courts and law enforcement agencies that appeals to high-crime area justification for Terry stops are out of keeping with the Constitution. Justice demands that Wardlow be overturned in the Supreme Court and that states follow suit, going further than simply curtailing the doctrine's reach or demanding a more exacting standard for its use. Courts must reject the Wardlow doctrine entirely.

J.D. Candidate, 2024, Seton Hall University School of Law; Ph.D., Indiana University; B.A., The College of New Jersey.