Click here to read on Massachusetts Lawyers Weekly's website.

January 6, 2022 

On June 30, 2020, the seven justices of the Supreme Judicial Court, including Chief Justice Gants, who tragically died months later, wrote an extraordinary letter to the legal community saying: “We must recognize and confront the inequity and injustice … of the disproportionate incarceration of African-Americans, and challenge the untruths and unfair stereotypes about African-Americans that have been used to justify or rationalize their repression.”  

Only a year later, on December 22, 2021 in Commonwealth v. Zahkaun Bailey-Sweeting, the Court’s majority ignored that plea. Written by Justice Cypher (and joined by Justices David Lowy, Scott Kafker and Dalila Wedlandt), the decision upholds the New Bedford police’s frisk of Zahkuan Bailey-Sweeting, a 22-year-old Black man, during which a gun was found.  

What did Bailey-Sweeting do to justify the frisk? Absolutely nothing. He sat silently in the backseat of a car that had been stopped because the driver had changed lanes too quickly.  

The police, the majority found, had “reasonable suspicion” to pat him down not because of anything he was doing but because of the conduct of the front seat passenger, another Black man, Raekwon Paris.  

Paris got out of the car and was angrily protesting the traffic stop as harassment. The police conceded that they had a hunch that he was just trying to distract them from contraband in the stopped car, perhaps a gun. 

The problem is that hunches don’t cut it to justify a lawful search, so the police larded their justification for frisking the car’s passengers with those familiar “untruths and unfair stereotypes” the court had warned about only a year before: location of the stop (a “high crime area”), suspected gang affiliation of the passengers, and their histories of weapon possession. 

It was an opinion that could have been written years ago, before we acknowledged racial bias in traffic stops, about the ways in which the gang label stereotypes black men, about how calling a neighborhood a “high crime area” justified racial profiling.  

It is the kind of decision that could have been written before we understood the way legal generalizations that are seemingly neutral encode tropes about race and promote racial disparities, before the SJC’s extraordinary 2020 letter.  

Chief Justice Kimberly Budd and Justices Frank Gaziano and Serge Georges Jr. strongly dissented. The police are only allowed to pat frisk someone if they have “reasonable suspicion, based on specific, articulable facts, that the defendant might have been armed and dangerous.”  

Perhaps Paris was angrily claiming police harassment to divert their attention from what might be in the car, as the police said. Equally (or more) likely, he was indignant because he was being harassed. Two of the three officers who had frisked him had arrested him 18 months before (in a search that the Appeals Court found to be unconstitutional); he had been stopped two other times in the interim.  

As Justice Budd noted: “Given the well documented history of the role that racial profiling plays in traffic stops throughout this country, a Black man’s expression of frustration at being stopped for a lane-change violation is readily comprehensible.”  

As to the other factors that justified the search of this man on that date? Gang affiliation is a label that risks stripping away constitutional protection of suspects, especially where—as in this case—there was no evidence that the so-called gang members were doing anything wrong (except that the driver, not a gang member, made an illegal lane change.) It is a notoriously flawed, unreliable and often racially biased label. As New Bedford City Councilor Dana Rebeiro cautioned in 2019, “I would have been considered a gang member.” 

Justifying a search because it takes place in a “high crime area” is worse. It is unreliably associated with actual crime rates and too often targets communities of color. 

And the association with guns? Evidence of Paris’ prior gun convictions hardly provides a reason to search Bailey-Sweeting, who had been convicted for gun possession three years before, and when he was a juvenile. 

Justice Budd said it best: By “uncritically accepting” the officers’ suspicion that the defendant was armed because of another passenger’s behavior, the decision invites the police to frisk first and justify it later. 

She added: “Such uncritical deference provides the space into which seeps the damaging influence of racial bias. Creating greater space for officers to act on their ungrounded intuitions that people are dangerous increases the risk that people of color will be subjected disproportionately to unjustified pat frisks.”  

This was just what the past several years’ reckoning about race and policing was about, just what the court itself had soberly warned against in its 2020 letter, and just what the highest court in this commonwealth should not endorse.