A narrow judicial win for the blue in blue Massachusetts

The Massachusetts Supreme Judicial Court rules a police pat frisk of an armed gang member lawful


During the early hours of a February evening, three detectives assigned to the New Bedford (Massachusetts) Police Department’s gang unit observed a red sedan make an abrupt lane change. The sudden lane change caused another vehicle to slam on its brakes to avoid a collision. The officers initiated a traffic stop of the offending vehicle.

Once the vehicle stopped but before the officers approached it, Raekwan Paris, a passenger in the vehicle, got out and angrily confronted the officers about why they stopped them. The officers recognized Paris from previous encounters including field interrogations and arrests for firearms offenses. Currently, Paris was out on bail for a previous firearm charge. During past encounters with police, including the detectives involved with this stop, Paris had acted both calm and cooperative. One of the officers described Paris as respectful during previous police encounters.

Two officers attempted to deal with the agitated Paris while the third attempted to approach the vehicle to speak with the driver. However, he was distracted by the escalating anger being displayed by Paris. Paris was ordered three times to return to the vehicle, but he refused. Paris bladed his body toward the officers and clenched his fists, leading an officer to be unsure of whether Paris intended to attack him.

The officers handcuffed Paris, pat frisked him and brought him to the rear of the stopped vehicle. The officers then focused on the other occupants of the vehicle. The other three occupants (a female and two males) were ordered to exit the vehicle. [1] Upon exiting all were pat frisked. During the pat down of defendant Sweeting-Bailey, officers found a loaded firearm tucked into the waist area of his pants and arrested him. Charges later included unlawful possession of a large capacity firearm; unlawful possession of large-capacity magazine; and carrying a loaded firearm without a license.

In addition to what the officers knew about Paris’s past encounters with police, the on-scene officers were aware that Cortes, a male passenger, had recently posted pictures of a firearm on social media and that Sweeting-Bailey had a prior firearm offense on his juvenile record. Officers were likewise aware that the three detained males were members of local street gangs.

The initial court adjudication

Sweeting-Bailey was subsequently indicted for several firearms offenses. A Superior Court judge denied his motion to suppress the discovery of the firearm on his person. He entered a conditional guilty plea and appealed to the Massachusetts Appeals Court which affirmed his conviction. He next appealed to the Massachusetts Supreme Judicial Court (SJC).

The decision of the Massachusetts Supreme Judicial Court [2]

The SJC ruled in a 4-3 decision that the officers had reasonable suspicion, based upon specific articulable facts, that the defendant might be armed and dangerous. In concluding that reasonable suspicion that the occupants might be armed existed, the SJC focused upon the facts known to the arresting officers that the lower court judge considered before rejecting the motion to suppress the firearm.

The SJC observed that the facts considered by the lower court included “Paris’s uncharacteristic behavior during the traffic stop, which officers interpreted as an effort to draw their attention away from the vehicle and its contents, the prior involvement with firearms of the three male passengers in the car, their known gang affiliations, and the high crime area in which the traffic stop occurred.”

The court ruled that although each of these factors standing alone would be insufficient to justify the pat frisk, “the totality of these factors justified not only the exit order but also the pat frisk.”

The dissenting opinion of the SJC Chief Judge

Chief Justice Budd issued a dissenting opinion in which she labeled as “pure speculation” the officers’ belief that Paris’s unusual conduct after the initial stop was an attempt to divert their attention away from the firearm possessed by Sweeting-Bailey. She explained that the officers did not testify that they had any training on drawing inferences of this kind. [3] Moreover, she rejected the idea that the officers could draw this inference based upon common sense and stated, “it cannot seriously be maintained that it was simply a matter of common sense to interpret Paris’s behavior as a ruse… .”

She further stated, “the three male occupants, histories of firearm possession and suspected gang affiliations similarly do not transform into a commonsense judgment the inference from Paris’s behavior to the defendant’s weapon possession.”

Judge Budd concluded her opinion by stating, “I write also to emphasize the adverse implications of today’s decision for communities of color.” She explained, “’ [A]nyone’s dignity can be violated’ by an unconstitutional search; however, ‘it is no secret that people of color are disproportionate victims of this type of scrutiny.’” [4] She concluded, “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.”

Conclusion

During my 44-year law enforcement career, I was involved in two unforgettable situations in which officers’ lives were threatened, bullets were fired and people died. I am keenly aware of the inherent and instantaneous danger faced by law enforcement officers from suspects with access to firearms. Accordingly, I fully concur with the SJC majority in the instant matter that approves of the officers’ order for Sweeting-Bailey to exit the vehicle and the subsequent pat frisk of his person. My only surprise is that only four of the seven SJC justices ruled that the conduct of the officers was constitutionally proper. My view is that the result should have been 7-0.

Justice Budd expressed her concern for the minority community that may result from this decision. My concern is directed toward the safety of law enforcement officers who swear an oath to protect us from dangerous persons on our streets and for the innocent civilians who live, work, and go to school in inner-city neighborhoods. These are the often-solid silent citizens who believe in law and order, rely on the police to keep them safe, and do not carry guns or join street gangs.

I seriously doubt that Justice Budd and the other dissenting justices are aware of FBI Law Enforcement Officers Killed and Assaulted (LEOKA) statistics that show that for almost 500 officers murdered by firearms between 2011 and 2020, 78.32% of those officers never fired their weapons. [5] What this means, in a nutshell, is that those officers were shot and killed so quickly that they never had a chance to defend themselves.

Likewise, these justices are likely not aware of how long it will take an officer to draw a firearm from a holster to defend against a threat and how many shots can be fired at an officer before he/she can draw. The bottom line is simple: it can take an officer up to two seconds to draw a firearm from a holster. [6] Meanwhile, a suspect with a pointed weapon can fire approximately four shots in a little over one second. [7] A rocket science degree isn’t required to determine who wins these confrontations. An officer with reasonable suspicion that a suspect may be armed must find and control that weapon before it is used against him, i.e., before it is drawn by the suspect.

NEXT: Vehicle frisk suppression reversed, creating new rule for frisks

References

1. From the time Paris first exited the vehicle to the time Sweeting-Bailey was told to exit, only 90 seconds had elapsed.

2. Commonwealth v. Zahkuan Sweeting-Bailey (SJC-13086) (Supreme Judicial Court of Massachusetts 12/22/2021).

3. Justice Wendlandt authored a concurring opinion siding with the majority opinion. In footnote four of the concurring opinion the judge observed: “The officers had approximately thirty-eight years of collective experience as police officers in New Bedford, including ten years of collective experience in the gang unit.” It is apparent that this judge credited the police training and experience of the on scene officers to make an objectively reasonable decision that their safety was threatened by these individuals.

4. Quoting, Utah v. Strieff, 579 U.S. 232, 254 (2016) (Sotomayor J., dissenting).

5. During that time frame 503 officers were murdered by firearms but information on whether they fired back was limited to 472 cases. Of the 472 cases, 370 officers did not fire their weapons.

6. See John M. Callahan Jr., “Lethal Force and the Objectively Reasonable Officer,” pg. 134, commenting on time and motion studies conducted by Dr. William Lewinski of the ForceScience Institute.

7. John M. Callahan Jr., “Lethal Force and the Objectively Reasonable Officer,” pg. 133, commenting on a separate time and motion study conducted by Dr. William Lewinski, ForceScience Institute.

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