Reasoning from first principles, I'd have thought that when a police officer sees you, activates his siren, pulls his car to the curb, and demands that you stop walking and come to the front of his police cruiser, that constitutes a "seizure" under the Fourth Amendment. The police have certain authority. Backed up by law, and substantial punishment for disobeying the commands of the police. My guess would be that 99% of people who are stopped in such a fashion would feel themselves obligated to obey the officer's commands. In short, that a reasonable person would not feel free to leave.
But let's imagine that the person doesn't stop. That he continues walking. Or, indeed, that when he's initially reluctant to stop, he sees the police officer start to reach for his gun, he starts running. Perhaps because he doesn't want to have a gun pointed at him and potentially get shot. Surely if there's no probable cause -- or even reasonable suspicion -- to stop, it's a Fourth Amendment violation to order the stop, right?
Nope. That's the problem with reasoning from first principles. The Supreme Court decided back in 1991 (in Hodari D.) that in such circumstances, since there was no "submission" to the officer's orders, there's no Fourth Amendment "seizure." The officer's orders go entirely unreviewed.
There's a good dissent to Hodari D., but it's the law. So lower courts have to follow it. For this reason, when the Ninth Circuit holds this morning that the commands described above, which were made to Jermaine Smith, weren't a seizure it's right. I might have been less enthusiastic than Judge Gould about so holding. But it's the right result. The present case is materially indistinguishable from Hodari D. So Part II of the opinion is right.
But what about after Smith starts running? He's definitely "seized" once the police officer runs after him and tackles him. So at that point, the Fourth Amendment unquestionably applies. Was there reasonable suspicion to do so? In short, can the goverment tackle someone -- i.e., seize them hard -- on the mere basis that they refuse to assent to a police officer's order and run away?
Well, sometimes, running away, when combined with other things, clearly constitutes reasonable suspicion. Officers get a description of a suspect, see someone, order him to stop, and he runs away. Yep. Reasonable suspicion. Or officers see a transaction on a street corner that looks like a drug deal, order a stop, and the suspect runs. Yep. They can tackle him. I'm on board for flight being a relevant factor under appropriate circumstances.
But what about the case involving Smith. In that case, there was nothing that directed the officer's attention to Smith other than that he walked in front of their patrol car (at least, according to footnote 1 of the opinion). Nothing. When the police ordered Smith to stop, they had nothing on him. No reasonable suspicion. No particular offense. Nothing. He was just a guy they felt like stopping. Perhaps for the audacity of legally walking in front of them.
So what about that? When Smith flees, is that alone reasonable suspicion?
Well, again, we can't reason from first principles. The Supreme Court decided a case in 1990, Illinois v. Wordlaw, in which the Supreme Court held in a 5-4 opinion that, yep, flight alone counts as reasonable suspicion. At least when it occurs in a "high crime" area. So if you're rich or white enough to reside and do your business in a "low crime" area, you can flee. But if you're not, well, tough. You've got to stop. And if you don't, you can permissibly be tackled. That's the law.
So, again, if that's the law -- and it is -- we can critique it, but lower courts have to follow it. As Judge Gould does. So it's the law in the Ninth Circuit and elsewhere. That's Part III of the opinion. Which Judge Gould again articulates without critique. And, of course, he's under no obligation to do anything else.
But Judge Gould does do something that's helpful, beyond merely following precedent. He notes that there would indeed be a Fourth Amendment violation if Smith "simply continued to go about his business, or walked away." It was the act of running that suddenly allowed the seizure; e.g., the tackling.
Which is exactly right, at least under the Supreme Court's precedents.
But it seems a bizarre rule. In "average" or rich neighborhoods, you've got the right to run or walk without being stopped. In poor neighborhoods, you have the right to walk, but not run. Whether there's "reasonable suspicion" thus depends on not only the wealth (and, correlatively, the race) of the person stopped, but also how bright they are. If they do what most people do when they see a gun -- run -- they're toast. But if they've read the relevant cases, and simply walk away, there's no longer reasonable suspicion.
That the presence of reasonable suspicion depends on whether the offender knows the relevant Fourth Amendment jurisprudence just seems facially bizarre to me. That just seems really strange.
But indeed that's the law. So know it. And, perhaps, if you're up for it, subject it to a little skeptical critique.
So the next time the police order you to stop, look around. Is the place rich? If so, feel free to take a little jog. Regardless, feel free to walk away. My strong sense is that the police aren't going to like that, and will promptly get in your face and compel you to stop. Which means that your alleged "freedom" to leave in the first place didn't exactly exist. But you'll be within your rights.
It's okay to flee by walking. Just not by running. That's the law.
