United States v. Daniel Brown ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30191
Plaintiff-Appellee,
D.C. No.
v. 2:16-cr-00056-
JCC-1
DANIEL DEREK BROWN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
Carolyn R. Dimmick, District Judge, Presiding
Argued and Submitted November 6, 2018
Seattle, Washington
Filed June 5, 2019
Before: M. Margaret McKeown and Michelle T. Friedland,
Circuit Judges, and Fernando J. Gaitan, Jr., * District Judge.
Opinion by Judge McKeown;
Concurrence by Judge Friedland
*
The Honorable Fernando J. Gaitan, Jr., United States District Judge
for the Western District of Missouri, sitting by designation.
2 UNITED STATES V. BROWN
SUMMARY **
Criminal Law
The panel reversed the district court’s order denying a
motion to suppress evidence obtained after police officers
stopped Daniel Brown following an anonymous tip that a
black man was carrying a gun, which is not a criminal
offense in Washington State.
The panel held that the officers lacked reasonable
suspicion that criminal activity was afoot before stopping
and frisking Brown. The panel wrote that the totality of the
circumstances does not add up to enough: no reliable tip, no
reasonable inference of criminal behavior, no police
initiative to investigate a particular crime in an identified
high crime area, and flight without any previous attempt to
talk to the suspect. The panel was particularly hesitant to
allow flight to carry the day in authorizing the stop, given
that racial dynamics in our society—along with a simple
desire not to interact with police—offer an “innocent”
explanation of flight, when every other fact posited by the
government weighs so weakly in support of reasonable
suspicion.
Concurring, Judge Friedland wrote separately to
elaborate on three points: (1) the presumptive legality of
carrying a concealed firearm in Washington makes this case
distinguishable from Foster v. City of Indio, 908 F.3d 1204(9th Cir. 2018); (2) to help explain why the result here is
different from that in Illinois v. Wardlow, 528 U.S. 119**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. BROWN 3
(2000), it is helpful to think of justification for a Terry stop
as a calculus in which the factors raising suspicion must,
after aggregating their relative weights, add up to reasonable
suspicion; and (3) nothing in the record supports the
conclusion that the officers were stopping Brown simply
because he was black.
COUNSEL
Jason B. Saunders (argued), Law Offices of Gordon &
Saunders PLLC, Seattle, Washington, for Defendant-
Appellant.
Charlene Koski (argued), Assistant United States Attorney;
Annette L. Hayes, United States Attorney; United States
Attorney's Office, Seattle, Washington; for Plaintiff-
Appellee.
4 UNITED STATES V. BROWN
OPINION
McKEOWN, Circuit Judge:
David Derek Brown, who is a black man, had the
misfortune of deciding to avoid contact with the police.
Following an anonymous tip that a black man was carrying
a gun—which is not a criminal offense in Washington
State—police spotted Brown, who was on foot, activated
their lights, and pursued him by car, going the wrong
direction down a one-way street. Before flashing their
lights, the officers did not order or otherwise signal Brown
to stop. Brown reacted by running for about a block before
the officers stopped him at gunpoint.
With no reliable tip, no reported criminal activity, no
threat of harm, no suggestion that the area was known for
high crime or narcotics, no command to stop, and no
requirement to even speak with the police, we are left with
little more than Brown’s flight from the officers, which is
not enough under the circumstances. In today’s world,
Justice Stevens’ observations some twenty years ago are
particularly prescient:
Among some citizens, particularly minorities
and those residing in high crime areas, there
is also the possibility that the fleeing person
is entirely innocent, but, with or without
justification, believes that contact with the
police can itself be dangerous, apart from any
criminal activity associated with the officer’s
sudden presence.
Illinois v. Wardlow, 528 U.S. 119, 132 (2000) (Stevens, J.,
concurring in part and dissenting in part). Without more
specific, articulable facts supporting their actions, we
UNITED STATES V. BROWN 5
conclude that the officers lacked the requisite reasonable
suspicion that criminal activity was afoot before stopping
Brown. Accordingly, we reverse the district court’s order
denying Brown’s motion to suppress.
BACKGROUND
This case began with a 911 call reporting that an
unidentified resident at the YWCA claimed “they saw
someone with a gun.” On January 11, 2016, around
7:20 p.m., Sandra Katowitz—an employee at the YWCA in
the Belltown neighborhood of Seattle—called 911, which
dispatched the information to the Seattle Police Department
(“Seattle Police”). Katowitz stated that “[o]ne of [her]
residents just came in and said they saw someone with a
gun.” Katowitz never saw the gun herself. Through
Katowitz, the resident described the man as a young, black
man of medium build with dreadlocks, a camouflage jacket,
and red shoes. The 911 dispatcher asked Katowitz specific
questions about what Brown was doing with the gun.
Katowitz answered that all her resident said was that “he has
a gun.”
Katowitz did not indicate that the resident yelled or
shouted, was visibly upset by seeing the gun, or was
otherwise alarmed by the gun’s presence. Also, there was
no indication that the man was loitering at the residence, was
known at the YWCA, was harassing or threatening any
residents there, or had done anything other than be seen by
the resident. The resident remained in the lobby while
Katowitz called 911, but on the call the resident can only be
heard stating that she did not want to provide a firsthand
report because she “[does not] like the police.” The resident
did not speak to the 911 dispatcher or the officers who
responded to the call, nor did she provide her name.
6 UNITED STATES V. BROWN
While Seattle Police officers were speaking to Katowitz,
two King County Sheriff’s Office Metro Transit Unit
(“Metro”) officers heard and responded to the 911 call. 1
From his patrol car, Metro officer Ryan Mikulcik spotted
Brown, who was on foot and matched the 911 description.
Mikulcik called his partner, Curt Litsjo. Then Mikulcik
began the pursuit, driving behind Brown slowly for several
blocks before turning on his patrol lights and driving the
wrong direction down a one-way street to follow Brown.
Seeing the lights and patrol car coming from behind him,
Brown ran. Mikulcik and Litsjo pursued Brown for one
block before stopping him and ordering him to the ground at
gunpoint. The officers placed Brown in handcuffs and found
a firearm in his waistband. A further search revealed drugs,
cash, and other items.
Brown moved to suppress the evidence from the
searches, arguing that the officers lacked reasonable
suspicion to stop him under Terry v. Ohio, 392 U.S. 1 (1968).
The district court disagreed and denied the motion. We
reverse.
ANALYSIS
Recognizing that an officer may only “conduct a brief,
investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot,”
Wardlow, 528 U.S. at 123, we must consider whether the
officers’ stop of Brown met this standard. In undertaking
1
After speaking to Katowitz, the Seattle Police officers who
responded to the call at the YWCA updated the dispatcher, saying that
“we have no victim of any crime.” The record is at best ambiguous as to
whether the Seattle Police officers updated dispatch that there was “no
victim of any crime” before Metro officers Mikulcik and Litsjo stopped
Brown at gunpoint.
UNITED STATES V. BROWN 7
this fact-driven analysis, we consider de novo “the totality of
the circumstances surrounding the stop, including ‘both the
content of information possessed by police and its degree of
reliability.’” United States v. Williams, 846 F.3d 303, 308
(9th Cir. 2016) (quoting Alabama v. White, 496 U.S. 325,
330 (1990)); see also United States v. Edwards, 761 F.3d
977, 981 (9th Cir. 2014).
Here, the lack of facts indicating criminal activity or a
known high crime area drives our conclusion. The Metro
officers who stopped Brown took an anonymous tip that a
young, black man “had a gun”—which is presumptively
lawful in Washington—and jumped to an unreasonable
conclusion that Brown’s later flight indicated criminal
activity. At best, the officers had nothing more than an
unsupported hunch of wrongdoing. The government’s effort
to rest reasonable suspicion on the tip and Brown’s flight
fails to satisfy the standard established by Terry and
Wardlow. The combination of almost no suspicion from the
tip and Brown’s flight does not equal reasonable suspicion.
The tip suffers from two key infirmities—an unknown,
anonymous tipster and the absence of any presumptively
unlawful activity.
It is well established that an anonymous tip that identifies
an individual but lacks “moderate indicia of reliability”
provides little support for a finding of reasonable suspicion.
See Florida v. J.L., 529 U.S. 266, 270–71 (2000). As the
Supreme Court has observed: “Unlike a tip from a known
informant whose reputation can be assessed and who can be
held responsible if her allegations turn out to be fabricated,
an anonymous tip alone seldom demonstrates the
informant’s basis of knowledge or veracity.” Id. at 270(internal citations and quotation marks omitted).
8 UNITED STATES V. BROWN
Even though Katowitz identified herself, the actual
source of the tip—the resident—remained anonymous. Nor
did the tip provide any predictive information that might
have served as indicia of reliability. Compare White,
496 U.S. at 332 (“Because only a small number of people are
generally privy to an individual’s itinerary [and future
behaviors], it is reasonable for police to believe that a person
with access to such information is likely to also have access
to reliable information about that individual’s illegal
activities.”). The Supreme Court has found a virtually
identical anonymous tip insufficiently reliable to create
reasonable suspicion. J.L., 529 U.S. at 268, 270–72 (holding
an anonymous tip that a young black man in a plaid shirt was
carrying a gun insufficient to create reasonable suspicion).
The Court was clear in J.L. that “a tip [must] be reliable
in its assertion of illegality, not just in its tendency to identify
a determinate person.” Id. at 272. None of the officers who
responded to the 911 call articulated what crime they
suspected Brown of committing. They stated only that they
knew he had a firearm, testifying at the suppression hearing:
“I heard them dispatch a call to a subject with a gun . . . ,”
and “I heard a call of a subject with a gun at - - in the
Belltown area.” These statements are illustrative for what is
not said. Although an officer is not required to identify the
exact crime he suspects, he must articulate suspicion as to
some criminality, not simply “an ‘inchoate and
unparticularized suspicion or hunch’ of criminal activity.”
Wardlow, 528 U.S. at 123–24 (quoting Terry, 392 U.S.
at 27).
In Washington State, it is presumptively lawful to carry
a gun. It is true that carrying a concealed pistol without a
license is a misdemeanor offense in Washington. See RCW
§§ 9.41.050(1)(a) (“[A] person shall not carry a pistol
UNITED STATES V. BROWN 9
concealed on his or her person without a license to carry a
concealed pistol . . . .”), 9.41.810 (explaining that any
violation of the subchapter is a misdemeanor “except as
otherwise provided”). However, the failure to carry the
license is simply a civil infraction. Id. § 9.41.050(1)(b)
(“Every licensee shall have his or her concealed pistol
license in his or her immediate possession at all times . . . .
Any violation of this subsection . . . shall be a class 1 civil
infraction . . . .”). Notably, Washington is a “shall issue
state,” meaning that local law enforcement must issue a
concealed weapons license if the applicant meets certain
qualifications. Id. § 9.41.070(1).
The anonymous tip that Brown had a gun thus created at
most a very weak inference that he was unlawfully carrying
the gun without a license, and certainly not enough to alone
support a Terry stop. Cf. Delaware v. Prouse, 440 U.S. 648,
663 (1979) (holding that unless there is a particularized
suspicion that the driver is unlicensed, officers are prohibited
from stopping drivers solely to ensure compliance with
licensing and registration laws).
Faced with this reality, the government now argues that
the officers suspected that the manner in which Brown was
carrying his gun was unlawful: it is “unlawful for any person
to carry, exhibit, display, or draw any firearm . . . in a
manner, under circumstances, . . . that warrants alarm for the
safety of other persons.” RCW § 9.41.270. Never mind that
nothing in the record could support such a finding. No
evidence shows that the resident was alarmed at the time she
reported seeing the gun. There is no report that she yelled,
screamed, ran, was upset, or otherwise acted as though she
was distressed. Instead, the 911 call reported only that the
resident “walked in” and stated “that guy has a gun.” The
911 dispatcher followed up trying to learn more about how
10 UNITED STATES V. BROWN
Brown was displaying the gun, other than simply possessing
it. But Katowitz simply reiterated, “[u]h, she just came in
and said he has a gun.” Both of the officers that stopped
Brown testified they were responding to a call about a
“subject with a gun.” Considering the tipster’s anonymity
and the presumptive legality of carrying a concealed firearm
in Washington, the “tip” alone did not create reasonable
suspicion that Brown was engaged in any criminal activity.
The government also offers a post hoc rationale, namely
that the call coming from the YWCA—a women’s shelter—
was part of the whole picture considered by the officers.
Nothing in the record suggests that Brown was in the shelter,
loitering in front of the shelter, or harassing or threatening
anyone around the shelter. To the contrary, Brown was
walking away from the shelter at the time of the stop. While
we do not take lightly the possibility of violence at a
women’s shelter, such a threat was not part of the totality of
circumstances confronting the officers who ultimately
stopped Brown. In the end, the 911 call revealed nothing
more than an unreliable anonymous tip reporting
presumptively lawful behavior. That is not to say that the tip
has no weight, but under the totality of circumstances, it is
worth little. See United States v. Fernandez-Castillo,
324 F.3d 1114, 1117 n.3 (9th Cir. 2003).
We next consider Brown’s flight from the Metro
officers. No one disputes that once the Metro officer
activated his patrol car lights, Brown fled. But the Supreme
Court has never endorsed a per se rule that flight establishes
reasonable suspicion. Instead, the Court has treated flight as
just one factor in the reasonable suspicion analysis, if an
admittedly significant one. Wardlow, 528 U.S. at 124(“Headlong flight—wherever it occurs—is the consummate
act of evasion: It is not necessarily indicative of wrongdoing,
UNITED STATES V. BROWN 11
but it is certainly suggestive of such.”). Nonetheless, the
Court has a long history of recognizing that innocent people
may reasonably flee from the police:
[I]t is a matter of common knowledge that
men who are entirely innocent do sometimes
fly from the scene of a crime through fear of
being apprehended as the guilty parties, or
from an unwillingness to appear as witnesses.
Nor is it true as an accepted axiom of criminal
law that ‘the wicked flee when no man
pursueth, but the righteous are as bold as a
lion.’ Innocent men sometimes hesitate to
confront a jury; not necessarily because they
fear that the jury will not protect them, but
because they do not wish their names to
appear in connection with criminal acts, are
humiliated at being obliged to incur the
popular odium of an arrest and trial, or
because they do not wish to be put to the
annoyance or expense of defending
themselves.
Alberty v. United States, 162 U.S. 499, 511 (1896).
Notably, the officers did not communicate with Brown,
use their speaker to talk with him, or tell him to stop before
they flashed their lights and then detained him. Under these
circumstances, Brown had no obligation to stop and speak to
an officer. See Florida v. Royer, 460 U.S. 491, 497–98
(1983) (holding that an individual has no obligation to
respond when police approach and ask questions).
The situation was far different in United States v. Smith,
where the officer activated his siren twice, pulled over, and
exited his vehicle before commanding Smith to stop.
12 UNITED STATES V. BROWN
633 F.3d 889, 891 (9th Cir. 2011). Smith, who was in a high
crime area, turned around and questioned whether the officer
was talking to him. Id. The officer clarified he was and
again commanded Smith to stop. Id. After a very pointed
back and forth with the officer, who made it clear that Smith
should stop, Smith suddenly broke out into a headlong run,
which the court found to be for “no other reason than to
evade.” Id. at 891, 894. As the officer approached, Smith
said that he had a handgun in his pocket. Id. at 891.
The circumstances here are also very distinguishable
from what law enforcement faced in Wardlow. There, the
officers specifically “converg[ed] on an area known for
heavy narcotics trafficking in order to investigate drug
transactions” and discovered the suspect holding an opaque
bag, who immediately ran after looking in the direction of
the officers. 528 U.S. at 121–22, 124. Assessing the
situation from the officers’ reasonable perspective, the
totality of the circumstances—the baggie, the high crime
area, and the known heavy narcotics trafficking in that
area—put Wardlow’s flight from the officers in an extremely
suspicious light. See id. at 124 (“It was in this context [of
the officers anticipating encountering various people
involved in drug crimes and seeing Wardlow holding an item
consistent with drug trafficking] that [the officer] decided to
investigate Wardlow after observing him flee.”). By
contrast, in the face of a weak tip, this case presents little
more than a black man walking down the street in Belltown,
which the government does not argue is a “high crime” area.
There is no evidence that Brown was in an area known for
unlawful gun possession, unlike the “heavy narcotics
trafficking area” in Wardlow, nor did the officers observe
Brown holding something or walking in a particular way that
would corroborate the information that he might be carrying
a gun. Brown did not refuse to speak with the officers after
UNITED STATES V. BROWN 13
a verbal request. Although Brown’s flight might be
suggestive of wrongdoing, it did not corroborate any reliable
suspicion of criminal behavior.
In evaluating flight as a basis for reasonable suspicion,
we cannot totally discount the issue of race. In explaining
his understanding of the limits of the Court’s opinion in
Wardlow, Justice Stevens recognized that flight can be a
problematic factor in the reasonable suspicion analysis
because some citizens may flee from police for their safety.
See Wardlow, 528 U.S. at 126–140 (Stevens, J., concurring
in part and dissenting in part). Several years before Justice
Stevens’ concurrence, our court addressed at length “the
burden of aggressive and intrusive police action [that] falls
disproportionately on African-American, and sometimes
Latino, males” and observed that “as a practical matter
neither society nor our enforcement of the laws is yet color-
blind.” Washington v. Lambert, 98 F.3d 1181, 1187–88 (9th
Cir. 1996). There is little doubt that uneven policing may
reasonably affect the reaction of certain individuals—
including those who are innocent—to law enforcement.
In the almost twenty years since Justice Stevens wrote
his concurrence in Wardlow, the coverage of racial
disparities in policing has increased, amplifying awareness
of these issues. This uptick in reporting is partly attributable
to the availability of information and data on police
practices. 2 Although such data cannot replace the
2
For example, relevant to this case, in 2011 the U.S. Department of
Justice investigated the Seattle Police Department and released a report
finding “a pattern or practice of using unnecessary or excessive force”
and “serious concerns” about racially discriminatory policing. U.S.
Dep’t of Justice, Investigation of the Seattle Police Department 3 (2011),
https://www.justice.gov/sites/default/files/crt/legacy/2011/12/16/spd_fi
ndletter_12-16-11.pdf. Since this report, the Department has been
14 UNITED STATES V. BROWN
“commonsense judgments and inferences about human
behavior” underlying the reasonable suspicion analysis,
Wardlow, 528 U.S. at 125, it can inform the inferences to be
drawn from an individual who decides to step away, run, or
flee from police without a clear reason to do otherwise. See
id. at 133 (“Moreover, these concerns and fears are known
to the police officers themselves, and are validated by law
enforcement investigations into their own practices.”
(footnote omitted)). Given that racial dynamics in our
society—along with a simple desire not to interact with
police—offer an “innocent” explanation of flight, when
every other fact posited by the government weighs so weakly
in support of reasonable suspicion, we are particularly
hesitant to allow flight to carry the day in authorizing a stop.
Even under Wardlow, flight itself—the “consummate act
of evasion”—is not tantamount to guilt. Although flight may
be suggestive of wrongdoing, the absence of other factors
here, when considered alongside a tip that is entitled to little
weight, underscores the lack of reasonable suspicion.
CONCLUSION
In the end, the totality of the circumstances here does not
add up to enough: no reliable tip, no reasonable inference of
criminal behavior, no police initiative to investigate a
particular crime in an identified high crime area, and flight
without any previous attempt to talk to the suspect. We
subject to a Consent Decree focused on eliminating the identified
constitutional violations. See United States v. City of Seattle, No. C12-
1282JLR, 2018 WL 6304761, at *1 (W.D. Wash. Dec. 3, 2018). Two
years after Brown’s arrest, in January 2018, a federal judge determined
the Seattle Police Department was fully compliant with phase one of the
Consent Decree, although review under the decree continues. See id.at *1–2.
UNITED STATES V. BROWN 15
conclude that the Metro officers did not have reasonable
suspicion of criminal activity when they stopped and frisked
Brown. Accordingly, we REVERSE the district court’s
denial of the motion to suppress.
FRIEDLAND, Circuit Judge, concurring:
I agree that Metro officers Mikulcik and Litsjo did not
have a reasonable suspicion that Brown was engaged in a
crime when they stopped him, so I concur in the majority
opinion. I write separately to elaborate on a few points.
First, the presumptive legality of carrying a concealed
firearm in Washington makes this case distinguishable from
our recent decision in Foster v. City of Indio, 908 F.3d 1204,
1215–16 (9th Cir. 2018), in which we held that an officer
could have reasonably believed that an anonymous tip
alleging that an individual had a gun created reasonable
suspicion. There, even though the tip did not state that the
person was carrying the gun illegally or was about to commit
a crime, we held that a reasonable officer “could have
concluded that the tip . . . provided information on potential
illegal activity” because it is presumptively unlawful to carry
a concealed weapon without a permit in California, which
issues concealed carry permits to only 0.2 percent of its adult
population. Id. at 1215. In comparison, Washington is not
only a “shall issue state,” as the majority opinion
emphasizes; it is also a state in which almost ten percent of
citizens have concealed carry permits. See John R. Lott, Jr.,
Concealed Carry Permit Holders Across the United States:
2016, Crime Prevention Research Center, July 26, 2016, at
20. Especially following our holding in Foster, I believe that
statistic weighs in favor of concluding that there was no
reasonable suspicion to stop Brown.
16 UNITED STATES V. BROWN
Second, to help explain why the result here is different
from that in Illinois v. Wardlow, 528 U.S. 119 (2000), I
believe it is helpful to think of justification for a Terry stop
as a calculus in which the factors raising suspicion must,
after aggregating their relative weights, add up to reasonable
suspicion. Under this framing, the Supreme Court in
Wardlow may be interpreted as suggesting that flight affords
officers most of the reasonable suspicion needed to conduct
a Terry stop. In Wardlow, the suspect’s presence in the
narcotics trafficking area while holding an object consistent
with drug trafficking activity provided enough additional
suspicion that, taken together with the suspect’s flight, there
was reasonable suspicion to support a Terry stop. By
contrast, the tip here was so unreliable that it added less
suspicion to Brown’s flight than Wardlow’s presence and
actions in a drug trafficking area did to his. Without more
than this tip, even if Brown’s flight created a significant
amount of suspicion, the Metro officers lacked sufficient
suspicion overall to stop and frisk him.
In my view, however, the Metro officers may have been
able to stop Brown in a constitutional manner if they had
approached the situation differently. Because Washington
law requires an individual to “have his or her concealed
pistol license in his or her immediate possession at all times”
and punishes the failure to produce the license on request as
a civil infraction, Wash. Rev. Code § 9.41.050(1)(b), I
believe the Metro officers could have approached Brown to
ask him to show his concealed carry license. The officers
would not have “seized” Brown, and therefore would not
have required reasonable suspicion for the interaction, as
long as a reasonable person in Brown’s position would “feel
free ‘to disregard the police and go about his business.’” See
Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting
California v. Hodari D., 499 U.S. 621, 628 (1991)). And if
UNITED STATES V. BROWN 17
Brown had failed to produce the license, he would have
committed a civil infraction at minimum. See Wash. Rev.
Code § 9.41.050(1)(b). Washington law would then have
permitted the officers to ask Brown for his name and, if he
refused, to detain him “for a period of time not longer than
is reasonably necessary to identify the person for purposes
of issuing” the infraction. Id. § 7.80.060; see id. § 7.80.050,
see also State v. Duncan, 43 P.3d 513, 519–20 (Wash. 2002).
Depending on Brown’s responses and reactions, the officers
might even have obtained reasonable suspicion that Brown
did not have a license at all, which would have made his gun
possession a misdemeanor offense under § 9.41.050(1)(a).
Once they had such suspicion, the officers could have
conducted a full Terry stop and frisk.
We are not reviewing the constitutionality of such a
hypothetical stop here, however, because the Metro officers
did far more than approach Brown and ask him for his
concealed carry license. As soon as Brown ran, the officers
cornered him with guns drawn, handcuffed him, and frisked
him, transforming the stop immediately into a detention that
could have only been supported by reasonable suspicion
existing prior to the detention.
Third, to the extent the majority opinion, particularly its
reference to the Seattle Police Department’s current consent
decree with the U.S. Department of Justice, see majority
opinion, at 13 n.2, could be read as suggesting that race
explains why the Metro officers initiated the encounter in the
first place, I want to emphasize that this is not my
understanding.
Nothing in the record supports the conclusion that the
officers were stopping Brown simply because he was black.
In other words, I see no reason to believe the officers were
using the tip as some pretext to stop Brown and that this stop
18 UNITED STATES V. BROWN
therefore fits into a longer history of Seattle law enforcement
engaging in racially discriminatory policing. 1 The concern
that Brown had a gun, regardless of race, was something
worth investigating, even if the circumstances ultimately fell
shy of giving the officers reasonable suspicion.
Given the serious public safety threat that firearms
present, we should not discourage law enforcement from
investigating whether an individual carrying a gun in public
is legally allowed to do so. But law enforcement must do so
in accordance with the protections of the Fourth
Amendment. Because the Metro officers here did not have
reasonable suspicion when they conducted a Terry stop of
Brown, the stop cannot stand under the Fourth Amendment.
With these points of elaboration, I join the majority
opinion.
1
Race might help explain why Brown ran. As the majority opinion
notes, potentially “innocent” explanations of flight include fears based
on racial disparities in policing. But race is not the only innocent
explanation that can explain flight—fear of the police for any reason can.
And our consideration of these innocent explanations does not mean that
the level of suspicion caused by flight is necessarily reduced when the
individual fleeing is black. Here, it is the lack of additional facts
suggesting Brown’s flight was borne out of an effort to hide criminal
behavior, such as a reliable tip or police observations suggesting illicit
activity, and not Brown’s race, that drives our analysis.