Illinois v. Wardlow Brief Amicus Curiae in Support of Respondent

    N o. 98-1036

IN THE

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1998

STATE OF ILLINOIS, 

V.

SAM WARDLOW,

Petitioner,

Respondent,

ON WRIT OF CERTIORARI TO THE 
SUPREME COURT OF ILLINOIS

BRIEF FOR THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE 

IN SUPPORT OF RESPONDENT

Elaine R. Jones 
Director-Counsel 
Theodore M. Shaw 
Associate Director-Counsel

George H. Kendall*
Laura E. Hankins 
Associate Director-Counsel 
NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC. 
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200 
Counsel for Amicus

* Counsel of Record



1

TABLE OF CONTENTS

Page
Table of Authorities....................................................................... ii

Interest of Amicus Curiae............................................................. 1

Summary of Argument.................................................................. 4

Argument........................................................................................ 5

Without More, Flight From Police Fails to Establish
Likelihood of Criminal Activity.................................... 5

A. The Terry/Sibron Compromise: Police May 
Utilize Stop & Frisk Tactics But Only When 
Circumstances Show Ample Factual 
Justification That Suggests Criminal Activity
Is A foot................................................................. 5

B. The Currently Troubled State o f Police-
Minority Community Relations Is Highly 
Relevant to Understanding Why Citizens Flee 
From Police......................................................... 8

C. Overwhelming Evidence Shows that Minority 
Citizens Fear Law Enforcement Officers 
Because o f Systemic Harassment
and Abuse.............................................................9

D. Consideration o f All the Relevant Facts
Requires a Conclusion That Wardlow's 
Flight Is Not Sufficiently Suggestive o f  Likely 
Imminent Criminal Conduct to Justify a 
Terry Seizure..................................................... 21

Conclusion 23



11

TABLE OF AUTHORITIES

CASES
PAGE(S)

Adams v. Williams, 407 U.S. 413 (1975)....................................6

Alabama v. White, 469 U.S. 325 (1990) .....................................7

Batson v. Kentucky, 486 U.S. 79 (1986).....................................1

Brown v. Texas, 443 U.S. 47 (1979).....................................7, 21

California v. Hodari D., 499 U.S. 621 (1991).............................7

Michigan v. Chesternut, 486 U.S. 567 (1988) .......................... 7

NAACP v. Button, 371 U.S. 415 (1963) .....................................1

Nebraska v. Hicks, 488 N.W.2d 359 (Neb. 1992) ..................... 8

People v. Aldridge, 674 P.2d 240 (Cal. 1984) ........................... 8

People v. Shabaz, 378 N.W.2d 451 (Mich. 1985) ..................... 8

People v. Wardlow, 678 N.E.2d 65 (111. App. 1997) .................... 3

People v. Wardlow, 701 N.E.2d 484 (111. 1998) ..........................3

Reid v. Georgia, 448 U.S. 438 (1980) ........................................ 7

Sibron v. New York, 392 U.S. 40 (1968) ......................... 5, 7, 20

State v. Arrington, 582 N.E.2d 649
(Ohio Ct. App. 1990).......................................................9



Ill

Swain v. Alabama, 380 U.S. 202 (1965).....................................1

Tennessee v. Garner, 471 U.S. 1 (1985)...................................... 1

Terry> v. Ohio, 392 U.S. 1 (1968).........................................passim

Turner v. Fouche, 396 U.S. 346 (1970)......................................1

United States v. Cortez, 449 U.S. 411 (1980)..................6, 9, 21

United States v. Sokolow, 490 U.S. 1 (1989)..............................6



IV

OTHER AUTHORITIES

ABC World News Tonight with Peter Jennings: Lessons fo r  Kids 
on Handling Police (ABC television broadcast,
March 19, 1999) ............................................................ 20

James Baldwin, Fifth Avenue Uptown in NOBODY KNOWS My
Name: More Notes Of A Native Son (1961) ..........11

Ann Belser, Suspect Black Men Are Subject to Closer Scrutiny 
from Patrolling Police and the Result is More Often 
Fear, Antagonism Between Them, PITTSBURGH POST 
Gazette, May 5, 1996 .................................................. 16

Patricia Callahan and Jeffrey A. Roberts, 63% o f Police 
Disciplined One in Four Commit Most Violations, 
Denver Post, April 27, 1997.........................................14

Leslie Casimir, Minority Men: We Are Frisk Targets,
N.Y. Daily News, March 26, 1999 ............................. 16

David Cole, No Equal Justice (1999)....................................20

John J. Farmer, New Jersey State Attorney General, 
Final Report Of The State Police Review Team 
(July 2, 1999) ................................................................  10

Kevin Flynn, Two Polar Views o f Race at U.S. Hearing,
N.Y. Times, May 27, 1999............................................  14

James J. Fyfe, Terry1: A[n Ex-]Cops View, 72 St . John's L. Rev. 
1231 (1998) .................................................................... 10

Jeffrey Goldberg, The Color o f Suspicion, N.Y. Times
Magazine, June 20, 1999 ......................................  12, 13



V

Jean Jacovy, Chief’s Move Next on Minorities Board 
Recommendations, OMAHA WORLD HERALD,
September 1, 1998..........................................................  14

Jean Johnson, Americans ’ Views on Crime and Law
Enforcement: Survey Findings, National INSTITUTE OF 
Justice Journal (September 1997).....................................15

Holman W . Jenkins Jr., What Happened When NY Got Business 
Like About Crime, WALL STREET JOURNAL,
April 28, 1999..................................................................16

The Law and You: Guidelines for Interacting With Law
Enforcement Officials (produced in partnership by the 
NAACP, National Organization of Black Law 
Enforcement Executives and Allstate Insurance 
Company).........................................................................20

Minority Troopers Describe A Culture o f Discrimination, N.Y.
T imes, July 8, 1999........................................................  13

John J. Monahan, Hearings on Alleged Police Abuse Set,
Telegram & Gazette, Septembers, 1999.................  14

Plaintiffs’ Fourth Monitoring Report, Pedestrian and Car Stop 
Audit, NAACP, Philadelphia Branch and Police Barrio 
Relations Project v. City of Philadelphia 
No. 96-CV-6045 (E. D. Pa. 1998)........................... 18, 19

President’s Commission on Law Enforcement and
Administration of Justice, Task Force Report:
The Police (1967).........................................................  15

Larry Reibstein, NYPD Black and Blue, Newsweek, 
June 2, 1997 ................................................... 12



VI

Tim Roche and Constance Humburg, Stops Far Too Routine 
For Many Blacks, ST. PETERSBURG TIMES,
October 3, 1997..............................................................  16

James M. Shannon, Attorney General, Report of the 
Attorney General’s Civil Rights Division on 
Boston Police Department Practices 
(December 18, 1990)..............................................  17, 18

Bruce Shapiro, When Justice Kills, The Nation,
June 9, 1997..................................................................... 13

Katherine Shaver, Panel Releases Report on Montgomery
Police, Washington Post, August 26,1998.............. 14

Jerome Skolnick, Terry and Community Policing, 72 St . John's 
L. Rev. 1265 (1998)...............................................  10, 11

Steven K. Smith et al., Criminal Victimization and 
Perceptions of Community Safety in 12 Cities,
1998, (Department of Justice, NCJ 173940,
May 1998) .....................................................................  15

United States Commission on Civil Rights, Racial and 
Ethnic Tensions in American Communities:
Poverty, Inequality and Discrimination
(May 1999)..............................................................  13, 19

Peter Veniero, N ew Jersey State Attorney General, 
Interim Report on State Police Practice and 
Allegations of Racial Profiling,
April 20, 1999................................................................ 11

Paul Zielbauer, Racial Profding Tops NAACP Agenda, 
N.Y. T imes, July 11, 1999................................. 13



1

INTEREST OF AMICUS CURIAE1

The NAACP Legal Defense Fund (LDF) was chartered in 
1939 for the purpose of, inter alia, rendering legal services free 
of charge to “indigent Negroes suffering injustice on the basis of 
race or color.” Its first Director-Counsel was Thurgood 
Marshall. See generally NAACP v. Button, 371 U.S. 415, 422 
(1963) (describing LDF as a “‘firm’ . . . which has developed a 
corporate reputation for expertness in presenting and arguing the 
difficult questions of law that frequently arise in civil rights 
litigation").

Since its inception, the Legal Defense Fund has sought to 
eradicate the race discrimination that has long infected our 
Nation’s criminal justice system and has called attention to the 
corrosive effects that such bias has on cherished norms of equal 
citizenship. Swain v. Alabama, 380 U.S. 202 (1965); Turner v. 
Fouche, 396 U.S. 346 (1970); Batson v. Kentucky, 486 U.S. 79 
(1986). Specifically, LDF has participated, as both counsel of 
record and amicus curiae, in landmark cases of this Court 
announcing the constitutional standards governing police-citizen 
encounters. See, e.g, Terry v. Ohio, 392 U.S. 1 (1968); 
Tennessee v. Garner, 471 U.S 1 (1985). In each, LDF sought to 
ensure that the Court’s resolution of the Fourth Amendment 
issues presented was informed by a full and realistic 
understanding of the costs of unchecked police discretion. Not 
only will the harms of unconstitutional police conduct be borne 
disproportionately by members of groups historically singled 
out for unequal treatment, but such practices are particularly 
subversive of the police-citizen trust that is indispensable both

1 This brief was prepared by counsel of record for amicus, with significant 
and dedicated assistance from summer intern Kara Finck. No party or 
third party made any financial contribution in support of these efforts.



2

to effective law enforcement and to full and equal civic 
participation.

These concerns are squarely implicated in this case. At 
precisely the juncture that local, State, and federal governments 
are beginning to document and come to terms with the 
pervasiveness of unjustifiable, race-based police misconduct — 
ranging from harassment to use of undue and even lethal force 
— the State of Illinois and its various amici insist that the Court 
should pronounce flight from the police sufficient in itself to 
establish reasonable suspicion as a matter of law. As a matter of 
Fourth Amendment doctrine and empirical reality, there can be 
no equating the numerous and specific indicia of criminal 
activity held sufficient in Terry to overcome the Constitution’s 
protections against seizures by the police, and the conduct here, 
which is wholly — and regrettably -— consistent with what may 
be expected of law-abiding individuals in areas where mistrust 
and apprehension of the police run high.

The weakening of the Terry standard prayed for by 
Petitioners here would deal a serious blow to the efforts of the 
Legal Defense Fund and other civil rights organization to 
eradicate race-based police practices and to assure that the full 
range of constitutional rights are enjoyed no less in our nation’s 
inner cities and “high crime” areas than in its “low crime” 
enclaves.

STATEMENT OF THE CASE

In the late morning of Saturday, September 9, 1995, four 
cars, each carrying two uniformed police officers, were driving 
in tandem through Chicago’s 11th District. The officers were 
neither responding to a report or tip of criminal activity, nor 
searching for a particular suspect. Officer Timothy Nolan, 
riding in the last car, saw Sam Wardlow, a middle-aged African- 
American male, standing on the street comer holding a white



3

bag. Officer Nolan did not know Wardlow and testified at the 
suppression hearing that Wardlow was not violating any law or 
regulation at that time. JA-5. After looking in the police 
officer’s direction, Wardlow began to run. JA-6. Officer 
Nolan immediately gave chase, during which he failed either to 
identify himself or to command Wardlow to stop. Prior to 
catching Wardlow, he did not see Wardlow make any effort to 
conceal or to hide anything. When he reached Wardlow, Nolan 
stopped him and immediately conducted a pat-down search of 
his person and bag. Upon feeling the outside of Wardlow’s bag, 
Nolan believed it contained a weapon. A search of the bag 
revealed a .38 caliber revolver, and Wardlow was placed under 
arrest.

The trial court denied the motion to suppress, and after a 
stipulated bench trial, found Wardlow guilty of unlawful 
possession of a weapon by a felon. Wardlow was sentenced to 
two years in the Illinois Department of Corrections. The Illinois 
Court of Appeals reversed the conviction, concluding that the 
stop and frisk violated this Court’s decision in Terry v. Ohio, 
392 U.S. 1 (1968). People v. Wardlow, 678 N.E.2d. 65 (111. 
App. 1997). That court determined that the ambiguous nature of 
flight did not rise to the level of reasonable suspicion required to 
justify the officer’s action. Id. at 68. It did not base its decision 
on Wardlow’s presence in a high-crime area because it 
concluded that the evidence of the location was too vague to 
support a determination of a particular and localized high crime 
area. Id. at 67. The Illinois Supreme Court affirmed, but on a 
different rationale. People v. Wardlow, 701 N.E.2d. 484 (111. 
1998). It concluded that flight alone in a high-crime area was 
not sufficient to justify a stop and frisk under Terry, not only 
because of the ambiguous nature of flight but also because of 
an individual’s right to freedom of movement and freedom of 
association. Id. at 486^487.



4

SUMMARY OF ARGUMENT

In Terry v. Ohio, the Court accepted the argument of our 
nation's police that under appropriate circumstances, stop and frisk 
practices were necessary to ferret out crime and could coexist with 
the Fourth Amendment. In doing so, however, the Court set a 
condition precedent: prior to any such encounter, the police must 
possess solid factual justification that the target of the stop and 
frisk likely is prepared to engage in criminal behavior. This 
condition was established to protect core Fourth Amendment 
interests and to prevent groundless harassment of citizens.

As the Illinois Supreme Court recognized, the question this 
case presents: whether the mere fact of flight from police — 
either alone or in conjunction with a high-crime setting — 
would be a close one as a matter of abstract Fourth Amendment 
principle. The rights of free association and freedom of 
movement protected by the First, Fourth, and Fourteenth 
Amendments should not be causally disregarded. But the 
Fourth Amendment question this case presents need not — and 
should not —  be decided as an abstract matter. As documented 
herein, the incidence of police harassment, mistreatment, and 
even physical abuse of law-abiding minority citizens is 
sufficiently high that a desire to avoid police contact is no 
longer a reliable indicator that criminality is afoot. Nor should 
the fact that flight occurs in a “high-crime” area be used to 
change the equation: the documented problems of police abuse 
are most serious in precisely those areas where police are most 
quick to presume guilt, and the protections of the Fourth 
Amendment must not be allowed to mean one thing for the 
residents of our inner cities (those who are most vulnerable to 
unreasonable and dangerous police conduct) and another for 
those who live in our Nation’s “low-crime” enclaves.

Why an inner-city resident flees at the sight of a police officer 
is at best ambiguous, and cannot by itself provide sufficient indicia



5

that the citizen is about to commit a crime. Many residents in such 
communities, and particularly minority members, have in the past 
been harassed by some law enforcement officers and continue to 
suffer from such abuse. They possess a legitimate and reasonable 
fear of such officials. Indeed, police harassment of law abiding 
minority citizens is an acute problem throughout this country.

Unlike prior cases that show police had a credible working 
hypothesis that it was likely the suspect was about to commit a 
crime, the only factor possessed by police here is Mr. Wardlow's 
flight after seeing Officer Nolan. This factor alone, and in 
conjunction with the fact that these events took place in an urban 
community with a high incidence of crime, fails to satisfies 
Terry's reasonable suspicion test. The judgment of the Illinois 
Supreme Court should be affirmed.

ARGUMENT

Without More, Flight From Police Fails To Establish
Likelihood of Criminal Activity.

A. The Terry/Sibron Compromise: Police May Utilize Stop 
& Frisk Tactics But Only When Circumstances Show 
Ample Factual Justification That Suggests Criminal 
Activity Is Afoot.

This Court's decision in Terry was a milestone for both the 
Fourth Amendment and police-citizen relations. For the first time, 
the Court gave its blessing to police-initiated encounters in the 
absence of probable cause. The Court concluded that when an 
officer possesses objective factors that reasonably suggest a 
citizen might well be about to commit a crime, the Fourth 
Amendment allows the officer to stop that person briefly, and if 
circumstances reasonably suggest the suspect might be armed, to 
conduct a brief pat-down search for weapons. Such "legitimate 
and restrained conduct undertaken on the basis of ample factual



6

justification" is not "unreasonable" under the Fourth Amendment, 
the Court concluded; indeed it exemplifies effective policing. Id. 
at 15.

At the same time, the Terry Court fully acknowledged the 
weighty constitutional and community security costs that arise 
when stop and frisk practices are employed in the absence of such 
articulable, objective factors. The Fourth Amendment right to be 
free from unreasonable searches and seizures is an "inestimable 
right of personal security," Id. at 8-9, and a pat-down search of a 
citizen's body "is a serious intrusion upon the sanctity of the 
person, which may inflict great indignity and arouse strong 
resentment, and it is not to be taken lightly." Id. at 17. "Even a 
limited search of the outer clothing for weapons constitutes a 
severe, though brief, intrusion upon cherished personal security, 
and it must surely be an annoying, frightening and perhaps 
humiliating experience." Id. at 24-25.

The Court recognized as well the judiciary’s important role in 
securing police compliance with its rule. Because illicit use of stop 
and frisk tactics can "only serve to exacerbate police-community 
tensions in the crowded centers of our Nation's cities, . . . courts . .
. retain their traditional responsibility to guard against police 
conduct which is over-bearing or harassing, or which trenches 
upon personal security without the objective evidentiary 
justification which the Constitution requires. When such conduct 
is identified, it must be condemned by the Judiciary . . . . " Id. at 12, 
15 (emphasis added).

In application, the Court has consistently approved 
encounters supported by credible indicia of likely criminal activity 
and rejected ones that lacked adequate factual support. The Terry’ 
Court found Officer McFadden's confrontation and search of 
Terry reasonable because it took place only after attentive study of 
what first appeared to be innocent behavior, but as time passed 
strongly suggested that Terry and others were preparing to commit



7

armed robbery. Id. at 27-30. Similarly in United States v. Cortez, 
449 U.S. 411 (1980), the Court found reasonable a stop of a truck 
because border patrol officers had first carefully analyzed a 
number of factors that, collectively, firmly suggested the truck 
likely contained illegal aliens and their guide. 449 U.S. at 419— 
420.2

On the other hand, the Court has not hesitated to reject as 
constitutionally impermissible encounters that lack sufficient 
indicia of wrongdoing. In Terry's companion case, Sibron v. New 
York, 392 U.S. 40 (1968), an eight-hour surveillance yielded only 
that Sibron was cavorting with several known drug addicts; the 
officer's subsequent search based on this information was firmly 
rejected as unreasonable. In Brown v. Texas, 443 U.S. 47 (1979), 
the Court determined that a citizen's presence in a high-crime area 
and refusal to identify himself to police lacked adequate indicia of 
wrongdoing. 443 U.S. at 52. In Reid v. Georgia, 448 U.S. 438 
(1980), the Court rejected Reid's traveling with another person but 
walking apart from him and occasionally looking back at his 
companion, as insufficient suggestion of drug trafficking. 448 
U.S. at 441. Thus, unless the circumstances as a whole reasonably 
suggest criminal behavior is likely afoot, the Fourth Amendment

2 See also Adams v. Williams, 407 U.S. 413 (1975) (finding reasonable 
suspicion supported by the time of day, location of the suspect in a car by 
themselves and informant’s tip that the suspect possessed narcotics and a 
weapon); United States v. Sokolow, 490 U.S. 1 (1989) (finding police officer 
had reasonable suspicion to stop suspect in the airport based on a 
combination of over five factors which suggested when taken together that 
the suspect was trafficking narcotics); Alabama v. White, 469 U.S. 325 
(1990) (finding reasonable suspicion granted to stop an individual based on 
an anonymous telephone tip, and subsequent corroboration as a result of 
independent police work). See also Michigan v. Chesternut, 486 U.S. 567 
(1988) and California v. Hodari D., 499 U.S. 621 (1991) (suggesting that no 
Terry violation occurred where police seized fleeing youths after witnessing 
youths discard contraband).



8

protection against government intrusion requires police to refrain 
from stop and frisk activities.

B. The Currently Troubled State o f Police-Minority 
Community Relations Is Highly Relevant To 
Understanding Why Citizens Flee From Police.

Illinois and its amici ask the Court to conclude that the mere 
fact of flight from police in a high-crime area is sufficiently 
suggestive of likely involvement in imminent criminal conduct 
under Terry to justify an otherwise unconstitutional seizure and 
search. Illinois argues that while some avoidance behavior, such 
as a citizen’s avoiding eye contact with the police, is not 
necessarily suggestive of suspicious conduct, "running away from 
a clearly identifiable police officer constitutes an innately 
suspicious reaction to the presence of police." Illinois Br. at 9. The 
United States argues that while flight "may be undertaken for 
innocent reasons, it is not behavior in which innocent persons 
commonly engage -  and it is far more likely to signal a 
consciousness of wrongdoing and a fear of apprehension." United 
States Br. at 6 (emphasis in original). Several state Attorneys 
General assert more boldly that when citizens face unwanted 
police attention, the innocent walk way, but the guilty flee. Ohio 
et. al. Br. at 5 ("A potential suspect with a guilty conscience may 
or may not know the police have independent information tying 
her to particular crimes; but when the officer shows up, the citizen 
does not want to stay and find out -- she runs. On the other hand, 
the citizen without the guilty conscience may desire to avoid 
interacting with police, so she declines to listen to, or to answer, 
police questions and walks on . . . ."). The Criminal Justice Legal 
Foundation (herein CJLF) asserts that a per se rule is appropriate 
because "flight supports reasonable suspicion because of the close 
relationship between flight from authority and a guilty mind." 
CJLF Br. at 3.



9

As we show below, these views ask too much. There is good 
reason why the majority of courts that have considered the issue 
have rejected this position.3 Simply put, the circumstances under 
which a citizen will ran from the police are too numerous, and too 
often based in innocence, to justify a per se rule.4 At most, it can 
be but one factor among many warranting consideration. 
Moreover, while Illinois and its amici profess to accept the Terry 
principle that reviewing courts must examine the totality of the 
circumstances before adjudging an encounter reasonable as a 
constitutional matter, see, e.g., Cortez, 449 U.S. at 418, none 
discuss or consider a factor that has enormous relevance to 
understanding why inner-city African-American residents would 
flee from police. That circumstance is fear, the sincere and 
understandable response that many inner-city minority residents 
— the law-abiding no less than the criminal — to potential 
encounters of any type with police.5

C. Overwhelming Evidence Shows That Minority’ 
Citizens Fear Law Enforcement Officers Because 
o f Systemic Harassment and Abuse.

3 See, e.g., Nebraska v. Hicks, 488 N.W.2d. 359, 362 (Neb. 1992) 
(collecting cases); People v. Shabaz, 378 N.W.2d. 451 (Mich. 1985); 
People v. Aldridge, 674 P.2d. 240 (Cal. 1984).

4 See, e.g., Hicks, 488 N.W.2d. at 363 (“fear or dislike of authority, 
distaste for police officers based upon past experience, exaggerated fears 
of police brutality or harassment and fear of unjust arrest are all legitimate 
motivations for avoiding the police.”); State v. Arrington, 582 N.E.2d. 
649, 658 (Ohio Ct. App. 1990) (“it is not unreasonable for a young, black 
male living in a neighborhood with drug sales and liable to be stopped to 
run when approached by a police car...”).

5 The CJLF notes the relevance of this factor, but inexplicably limits it to 
"recent immigrants from police states." CJLF Br. at 25. The Americans for 
Effective Law Enforcement, Inc., et. al. brief raises generally the subject of 
policing minority communities, but does not discuss this issue.



10

There is no question the Terry’ Court was correct in 
recognizing the subversive effect upon both Fourth Amendment 
values and constructive law enforcement-community relations that 
result when police accost citizens in the absence of reasonable 
suspicion of criminal activity. Yet in many minority communities 
in contemporary America, youth and adults are to a staggering 
degree subjected to stops, frisk, beatings, and in some instances, to 
lethal injuries, in the absence of any wrongdoing on their part. 
These tragic patterns of pervasive police misconduct have many 
harmful consequences, not the least of which is that many 
minority citizens — and especially young men in inner cities — 
no longer perceive an approaching police officer as a benign force. 
To the contrary, bitter experience teaches — and empirical 
research confirms — that officers often initiate such encounters in 
bad faith, with little regard to these citizens’ basic human 
dignity, let alone their constitutional rights.

Police experts understand the effects of unrestrained police 
stop and frisk activity upon a subject community. The “real 
problem with Terry is that police stop and frisk when it isn’t as 
justified as it was in Terry."6 A highly decorated-former officer 
believes unauthorized stops poison police-citizen relations 
because “a Terry stop says terrible things about its subject; it is 
the officer’s way of telling a person you look wrong and I am 
going to check out my feelings about you even if it embarrasses 
you.”7 Thus:

[a] citizen’s good or poor opinion may largely be formed
by the impression the citizen has of those fleeting contacts

6 Jerome Skolnick, Terry and Community Policing, 72 St . JOHN’S L. Rev. 
1265, 1267 (1998).

7 James J. Fyfe, Terry: A[n Ex-]Cop's View, 72 ST JOHN'S L Rev. 1231, 
1243 (1998).



11

with . . . [police]. No other state officials have the 
discretionary power, sometimes exercised within seconds, 
to consider and apply the law to a citizen, to restrain a 
citizen’s liberty by temporary detention, to invade a 
citizen’s privacy by search or even to injure or kill a citizen 
in self-defense or in protection of others.8

Yet despite the Court’s and law enforcement's understanding 
of the corrosive harm that results from illicit and unwanted police- 
initiated encounters with citizens, the widespread practice by beat 
officers in many urban and minority communities is to defy rather 
than to comply with Terry's admonitions. James Baldwin's 
haunting declaration from three decades ago -— “from the most 
circumspect church member to the most shiftless adolescent, who 
does not have a long tale to tell of police incompetence, injustice, 
or brutality?"9 — sadly is as apt today as when it was first written. 
This view is shared not only by police critics but also by some of 
the most respected voices in law enforcement.

Charles H. Ramsey, Chief of Police in Washington, D.C., 
noted earlier this year that “despite tremendous gains throughout 
this century in civil rights, voting rights, fair employment and 
housing, sizeable percentages of Americans today, especially 
Americans of color, still view policing in the United States to be 
discriminatory, if not by policy and definition, certainly in its day 
to day application."10 One major reason for these views is stop and

8 John J. Farmer, New Jersey State Attorney General, Final 
Report Of The State Police Review Team 2-3 (July 2,1999).

9 James Baldwin, Fifth Avenue Uptown in Nobody Knows My Name: 
More Notes Of A Native Son 62 (1961).

10 Peter Veniero, New Jersey State Attorney General, Interim 
Report on State Police Practice and Allegations of Racial 
PROFILING, April 20, 1999 at 46 (quoting from “Overcoming Fear, 
Building Partnerships: Towards a New Paradigm in Police Community 
Race Relations” a presentation by Charles H. Ramsey given at the



12

frisk. “Field interrogations that are excessive, that are 
discourteous, and that push people around, generate friction.”" 
George Kelling, a Rutgers University criminal justice professor 
and well known proponent of the “broken windows” theory of 
crime control, agrees that stop and frisk practices possess 
“tremendous potential for abuse,” and he is deeply critical of 
police departments which “indiscriminately stop and frisk 
people.”11 12 Former Officer Fyfe observes that in his experience, 
too many officers today are “just making guesses and quite often 
they are wrong.”13

One likely explanation for this state of affairs is that a 
significant minority of line officers believe that no countervailing 
consideration — be it the respect for personal security embodied 
in the Fourth Amendment or the equal treatment mandate of the 
Fourteenth — should constrain the work of ferreting out crime. A 
Baltimore police officer and president of the Baltimore Fraternal 
Order of Police openly remarked recently, “of course we do racial 
profiling at the train station. If 20 people get off a train and 19 are 
white guys in suits and one is a black female, guess who gets 
followed? If racial profiling is intuition and experience, I guess 
we all racial-profile”14 Another experienced officer in Southern 
California recently confided "racial profiling is a tool we use, and 
don't let anyone say otherwise. . . . Like up in the valley, . . .  1

Attorney General’s Law Enforcement Summit, in East Rutherford, N.J. 
on December 11, 1998.)

11 Skolnick, supra note 6 at 1267.
12 Larry Reibstein, NYPD Black and Blue, N ewsweek, June 2, 1997 at 
65.

13 Id. at 66.
14 Jeffrey Goldberg, The Color o f  Suspicion, N.Y. TIMES MAGAZINE, June 
20, 1999 at 51.



13

know who all the crack sellers were — they look like Hispanics 
who should be cutting your lawn."15

Minority police officers who have found the courage to speak 
on the record complain that in many departments, a number of 
fellow officers routinely harass minority citizens. Gene Jones, a 
black police officer in Philadelphia and a staff sergeant in the New 
Jersey National Guard told of the lengths that he goes to in order 
to avoid traveling on the New Jersey Turnpike so he will not be 
stopped by state patrol officers; "Yeah, I go to Jersey for Guard 
weekend, I take the back roads. I won’t get on the turnpike. I 
won’t mess with those troopers.”16 Several minority New Jersey 
State Police officers recently filed suit against that agency, 
confirming the prevalence of racial prejudice in its operations.17 In 
another instance, a black Philadelphia police officer related that he 
was pulled over in a predominantly white suburb, purportedly 
because his inspection sticker was placed “abnormally high” on 
his windshield.18

Because these aggressive tactics flout the very law the 
officers are duty-bound to enforce, police departments throughout 
the country are seeing increased numbers of complaints of 
arbitrary and unfair street stops, as well as for use of excessive 
force,19 and brutality.20 Such large numbers of complaints from

15 Id. at 57.

16 Id. at 60.
17 Minority Troopers Describe A Culture o f Discrimination, N.Y. TIMES, 

July 8, 1999 atB2.

18 Goldberg, supra note 14 at 60.

19 In New York, complaints of excessive force have increased 41% since the 
police department instituted a zero-tolerance policy. Of those complaints, 
75% were filed by African-American and Latino citizens. See Bruce 
Shapiro, When Justice Kills, The NATION, June 9, 1997 at 21.



14

minority community citizens have prompted the NAACP to 
announce that ending racial profiling is a top organizational 
priority.20 21 National and local civil rights commissions are 
increasingly called to investigate harassing police practices.22 In 
Omaha, Nebraska, the Human Relations Board recently found that 
there was little trust between Omaha police and African-American 
citizens, and that many people of color felt mistreated or harassed 
by the police because of their race.23 A task force in Montgomery 
County, Maryland held similar hearings at which numerous 
witnesses recounted having been stopped because they were in 
predominantly white neighborhoods.24 In Worcester, 
Massachusetts, the local civil rights commission held a series of 
hearings at which troubling and substantial allegations of racial 
profiling and excessive force were aired.25 In Denver, the local 
newspaper listed a string of clear abuses of authority all arising in

20 The Christopher Commission found numerous police radio messages in 
Los Angeles which celebrate the use of unnecessary force against citizens: 
“make sure you bum him if he’s on felony probation - by the way does he 
need any breaking?,” and “Did U arrest the 85 year old lady of [sic] just beat 
her up[?]” with the response of “We just slapped her around a bit. . . she/s 
getting m/t [medical treatment] now.” UNITED STATES COMMISSION ON 
Civil Rights, Racial and Ethnic Tensions in American Communities: 
Poverty, Inequality and Discrimination 25 (May 1999).

21 Paul Zielbauer, Racial Profiling Tops NAACP Agenda, N.Y.TlMES, July 
11, 1999 at 23.
22 John J. Monahan, Hearings on Alleged Police Abuse Set, TELEGRAM & 
Gazette, September 5, 1999 at A3.
23 Jean Jacovy, Chief’s Move Next on Minorities Board 
Recommendations, Omaha WORLD H erald, September 1, 1998, at 9.

24 Katherine Shaver, Panel Releases Report on Montgomery Police, 
Washington Post, August 26, 1998, at B05. The task force also heard 
testimony from a parent who reported that his “teenage son had been 
followed repeatedly by a police officer who had threatened to kill him if 
he did not leave the area.” Id.

23 Monahan, supra note 22 at A3.



15

a single year: “a patrolman is captured on videotape aiming his 
gun at a woman in a holding cell; an officer kicks a suspected cop 
killer as a TV photographer tapes him; a seven year veteran of the 
police force is arrested for allegedly ramming a man with his 
police cruiser, then breaking his jaw with three kicks to the 
face.”26 In New York City, the United States Civil Rights 
Commission recently held hearings on the stop and frisk practice 
of the NYPD’s Street Crimes Unit.27

Emerging data reveals that minority citizens are increasingly 
unhappy with these aggressive police practices, and that they often 
are the targets of distasteful encounters that rarely lead to arrest. In 
May of 1999, the Department of Justice released a twelve-city 
survey on community perceptions of law enforcement. The survey 
found that African-American residents were twice as likely to be 
dissatisfied with police practices than were white residents in the 
same community.28 These data nearly mirror findings of 30 years 
ago.29 A study by the Joint Center for Political and Economic 
Studies in April 1996 found that 43% of African Americans 
consider “police brutality and harassment of African-Americans a

26 Patricia Callahan and Jeffrey A. Roberts, 63% o f Police Disciplined 
One in Four Commit Most Violations, DENVER POST, April 27, 1997, at 
A01.
27 Kevin Flynn, Two Polar Views o f Race at U.S. Hearing, N.Y. TIMES, May 
27, 1999 § B at 5.
28 Steven K. Smith et al., Criminal Victimization and Perceptions 
of Community Safety in 12 Cities, 1998, (Department of Justice, NCJ 
173940, May 1998).

29 President’s Commission on Law Enforcement and 
Administration of Justice, Task Force Report: The Police 146 
(1967) (finding African-American citizens "significantly more negative in 
evaluating police effectiveness in law enforcement").



16

serious problem” in their own community.30 In fact a survey of 
polls conducted across the nation and reported in the National 
Institute of Justice’s Journal suggests that “many black Americans 
are disaffected and suspicious. They are not confident that the 
police will be fair. They are not confident that the police will be 
professional. They are not confident that the police will ‘protect 
and serve.’”31

Available data on stop and frisk practices show these 
misgivings to be well-founded. The data show that a large 
number of citizens who are stopped and often frisked — 
disproportionately members of racial and ethnic minority groups 
— were engaged in no criminal conduct. Over a two-year period 
starting in 1997, the New York City Police Department Street 
Crimes Unit stopped and frisked 45,000 citizens focusing on “high 
crime areas.”32 Only twenty percent of the individuals stopped 
were arrested. The other 35,500 citizens who lived, worked and 
traveled in these neighborhoods were subjected to the “annoying, 
frightening and perhaps humiliating experience,” Terry, 392 U.S. 
at 25, of police detainment despite being innocent of any of the 
wrongdoing of which they were “suspected.” A New York 
newspaper survey found that 81 out of 100 randomly questioned 
young black and Hispanic men living in New York City had been 
stopped and frisked by the police at least once.33 The survey 
reported that none of the 81 stops resulted in arrests. In Pittsburgh, 
young black males were stopped an average of 3.47 times during a

30 Jean Johnson, Americans ’ Views on Crime and Law Enforcement: 
Survey Findings, NATIONAL INSTITUTE OF JUSTICE JOURNAL (September 
1997).

31 Id
32 Holman W. Jenkins Jr., What Happened When N. Y. Got Business Like 
About Crime, WALL STREET JOURNAL, April 28, 1999.

33 Leslie Casimir, Minority Men: We Are Frisk Targets, N.Y. DAILY 
N e w s , March 26, 1999.



17

five year period compared to white residents who were stopped an 
average of 1.53 times during the same period.34 In St. Petersburg, 
Florida, a study of police field interrogation reports found that 
police conducted street stops of more than 9,000 people over a 
period of twenty months, with African-American residents being 
stopped entirely out of proportion to their share of the City’s 
population. A review of the reasons listed by police officers to 
justify the stops included standing by a pay phone, standing 
outside a house smoking a cigarette, and riding a bicycle the 
wrong way down a one-way street.35

A 1991 report on the Boston Police Department conducted by 
the Massachusetts Attorney General concluded that police officers 
engaged in improper, and unconstitutional, conduct in the 1989-90 
period with respect to stops and searches of minority individuals.36 
The report went on to note that:

the most disturbing evidence was that the scope [emphasis in 
original] of a number of Terry searches went far beyond 
anything authorized by that case and indeed, beyond anything 
that we believe would be acceptable under the federal and 
state constitutions even where probable cause existed to 
conduct a full search incident to an arrest. Forcing young men 
to lower their trousers or otherwise searching inside their 
underwear, on public streets or in public hallways, is so

34 Ann Belser, Suspect Black Men Are Subject to Closer Scrutiny from  
Patrolling Police and the Result is More Often Fear, Antagonism Between 
Them, Pittsburgh Post Gazette, May 5, 1996 at A15.

35 Tim Roche and Constance Humburg, Stops Far Too Routine For Many 
Blacks, St . Petersburg T imes, October 3, 1997 at A l.

36 James M. Shannon, Attorney General, Report of the Attorney 
General’s Civil Rights Division on Boston Police Department 
Practices 60 (December 18, 1990).



18

demeaning and invasive of fundamental precepts of privacy 
that it can only be condemned in the strongest terms.37

This report also documented numerous incidents of police 
brutality that occurred during street stops. One sixteen year-old 
African-American male reported being stopped, strip-searched 
approximately seven times, and forced to lie face down on the 
ground. The youth's account, credited by investigators, reported 
that “the officers often emerged from the cruisers with guns 
drawn, put the guns right to his face, and said that if he moved, 
they would shoot him or ‘blow [his] flattop off.”’38 39 40 A seventeen 
year old black male reported credibly that in 1990 while standing 
on a comer, two police officers said “you fucking niggers, get 
[out]. We don’t want you hanging on the street anymore.”37 The 
police officer, after asking the youth what was in his mouth, hit 
him and threw him to the ground and then proceeded to conduct a 
strip search. Neither youth was arrested, let alone charged with 
any crime.

The Massachusetts Report concluded in no uncertain terms 
that “the communities hardest hit by crime must not be forced to 
accept the harassment of their young people as the price for 
aggressive law enforcement. . . .  It is hardly an object lesson in 
respect for the law and for the police to be searched for no other 
reason than that you are young, black and wearing a baseball

In Philadelphia, wfien race was recorded on the police 
department field reports, the overwhelming majority (80.2%) of 
stops were of African Americans even though the districts in

37 Id. at 61.

38 Id. at 39.

39 Id. at 44.

40 Id  at 67.



19

question were racially integrated 41 A review of these reports for 
three districts over a week revealed that the police recorded no 
explanation in over half of the stops.42 None of these stops 
resulted in an arrest. Moreover, a number of field reports listed 
“stopped for investigation” as the primary reason for making the 
stop. Other justifications recorded by police officers included 
hanging out on a comer, being homeless, and observing a female 
in a known prostitution area.43 In addition to the fact that these 
stops were based on wholly innocent activities insufficient to 
constitute reasonable suspicion, nearly twice as many minorities 
were subject to stops and frisks as compared to white residents.44

Recent studies also show that more often than not, minority 
citizens are subject to harsher treatment than whites during these 
encounters. The Christopher Commission's examination of police 
practices in Los Angeles in the wake of the first Rodney King 
verdict documented how minority residents were more likely to be 
subjected to excessive force, longer detentions not resulting in a 
charge, and to invasive and humiliating police tactics 45

41 Plaintiffs’ Fourth Monitoring Report, Pedestrian and Car Stop Audit at 
16, NAACP, Philadelphia Branch and Police Barrio Relations Project v. 
City of Philadelphia, No. 96-CV-6045 (E. D. Pa. 1998).

42 Sixty-two percent of the time the police did not record an explanation 
for the stop. See id. at 26-27.

43 Id. at 12-13.

44 Id. at 13.
45 The prone-out position is a “police control tactic that requires the suspect 
first to kneel, and then lie flat on his stomach, with his arms spread out from 
his sides or his hands behind his back. The Commission received numerous 
accounts of incidents involving African-American and Latino males stopped 
for traffic infractions, who were “proned-out under circumstances that did 
not present any risk of harm to the officers and that did not involve a felony 
warrant.” United States COMMISSION ON Civil Rights, supra note 20 at 
27 n.119.



20

The Commission further determined that when the Los 
Angeles Police Department adopted a policing model emphasizing 
aggressive street patrol, one result was the alienation of the 
majority of law abiding citizens. The report concluded that these 
citizens “viewed the police department with mistrust, since they 
were perceived by the police as potential criminals.”46 47 In that 
same report, a survey of 900 police officers in LAPD found that 
one quarter of the respondents felt that “racial bias (prejudice) on 
the part of the officers towards minority citizens currently exists 
and contributes to a negative interaction between police and

. ,,47community.

Increasingly, even citizens who were initially supportive of 
aggressive stop and frisk efforts in their neighborhoods are 
expressing second thoughts. As one Upper Manhattan resident 
recently explained, “in the beginning we all wanted the police to 
bomb the crack houses. But now it’s backfiring at the cost of the 
community. I think the cops have been given free rein to 
intimidate people at large.”48

Others — predominantly African-American and Latino 
parents — have felt sufficiently fearful of the dangers of contact 
with the police that they have enrolled themselves and their 
children in seminars that teach how to decrease the likelihood of 
harm when encountering the police.49 Moreover, the Allstate 
Insurance Company has become so concerned with the state of 
police relations with youth that it recently undertook to finance a

46 Id. at 29.

47 Id. at 56.

48 David Cole, No Equal Justice 46 (1999).

49 ABC World News Tonight with Peter Jennings: Lessons fo r  Kids on 
Handling Police (ABC television broadcast, March 19, 1999).



21

joint project with the NAACP to distribute pamphlets to 
youngsters on how to act when confronted by a police officer. The 
pamphlets, entitled “The Law and You,” instruct teenagers to 
“avoid any action or language that might trigger a more volatile 
situation, possibly endangering your life or personal well-being.”50

This glimpse of the present status of police-community 
relations in many areas of the country is sadly similar to the one 
the Terry/Sibron Court confronted and acknowledged three 
decades ago.51 As it informed the Court’s holding then that stop 
and frisk tactics be employed only on the basis of ample factual 
justification, the stubborn presence of these very same conditions 
today require the Court to consider, as a circumstance of this case, 
the fear that minority citizens in inner cities reasonably hold when 
they see officers of the law.

D. Consideration o f All the Relevant Facts Requires A 
Conclusion That Wardlow's Flight Is Not 
Sufficiently Suggestive o f Likely Imminent Criminal 
Conduct to Justify a Terry Seizure.

This case contrasts with those in which the Court has been 
willing to uphold seizures and frisks in the absence of probable 
cause, and resembles far more closely the ones in which the Court 
has found the factual showing inadequate. Unlike the careful and 
deliberate police work described in Terry and Cortez, Officer

50 The Law and You: Guidelines for Interacting With Law Enforcement 
Officials (produced in partnership by the NAACP, National Organization 
of Black Law Enforcement Executives and Allstate Insurance Company).

51 See Terry, 392 U.S. J , 14-15 & n .ll  (affirming the necessity of the 
courts “to guard against police conduct which is overbearing or harassing, 
or which trenches upon the personal security without the objective 
evidentiary justification which the Constitution requires” and the fact that 
stop and frisk can “be a severely exacerbating factor in police community 
tensions”).



22

Nolan’s decision to seize and frisk Wardlow was made nearly 
instantly, upon Wardlow’s flight, and without the development of 
any other fact that might have confirmed the hunch that Wardlow 
was about to commit a crime. Indeed, prior to seeing Wardlow, 
Nolan had no information of any reported crime in the area, nor 
was there any suggestion that Wardlow might be involved in any 
criminal activity. In appearance, Wardlow was violating no law. 
He was merely standing on the sidewalk, and like many urban 
residents, was carrying a bag. And even after he began to run, he 
broke no law, nor gave Nolan any further articulable reason to 
believe he was committing, or about to commit a crime, or was 
armed. At the moment that Nolan seized control of Wardlow and 
commenced to pat him down, Nolan possessed no additional 
information that suggested that Wardlow was violating any law. 
This case is much more like Brown v. Texas in that in both, the 
police acted quickly on hunches and failed to develop sufficient 
evidence that criminal conduct was afoot prior to the stop.



23

CONCLUSION

The issue that divides us from Illinois is not whether flight 
can be considered as a Terry factor, but whether flight alone 
satisfies Terry's “ample factual justification” requirement. 
Given the state of police-community relations, flight from police 
neither reliably nor sufficiently suggests that criminal activity is 
afoot. Because Illinois and its amici have failed to show 
otherwise, the Court should affirm the judgement of the Illinois 
Supreme Court.

Dated: August 9, 1999 Respectfully Submitted,

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Associate Director-Counsel

George H. Kendall*
Laura E. Hankins 
Associate Counsel 
NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC. 
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212)965-2200

*Counsel of Record