A CAR FULL OF MEN are stopped by the police for a traffic violation. One passenger jumps out and acts aggressively. After restraining him, the police search the other occupants in the car, find a weapon on one man, and arrest him. 

Does the race of the men matter?  

The issue of race in the traffic stop became a sharp dividing line in a Supreme Judicial Court decision issued Wednesday. The court, normally a bastion of consensus, split 4-3, with the majority upholding the right of the police to search the Black passenger and declaring that race was not a factor in their decision. The other three justices, two of whom are the court’s only Black justices, sharply disagreed, saying they worried that the court’s decision could unintentionally allow for racially biased policing. 

“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,” wrote Chief Justice Kimberly Budd, who is Black, in her 17-page dissent, which begins with the words “A Black man.” 

The case, Commonwealth vs. Zahkuan Sweeting-Bailey, stemmed from a traffic stop in New Bedford. A car changed lanes abruptly, causing another car to slam on its breaks to avoid an accident, and the police stopped the car that made the unsafe lane change. Passenger Raekwan Paris, who is Black, got out, angrily confronted the police about the reason for the stop, and took a “bladed” stance, appearing ready to fight.  

Several of the officers knew Paris from prior encounters, including firearms offenses, and said he had previously acted cooperative and polite, so his conduct was unusual. The officers also knew the other men in the car. One had recently posted a picture on social media with a firearm, and one had committed a firearms offense as a juvenile. All three were known to be gang members. 

After handcuffing Paris, the police pat frisked the other men, including Sweeting-Bailey, who is also Black. They found a weapon on Sweeting-Bailey and arrested him. Sweeting-Bailey challenged the search, arguing that the police did not have reasonable suspicion to search him.  

In order to legally justify a search, the police need to have a “reasonable suspicion” that the person is armed and dangerous. In this case, the police said they had reasonable suspicion to believe that Paris’s uncharacteristic outburst was intended to distract them from discovering a weapon was in the car. They also noted all three men’s prior involvement with firearms, their gang affiliations, and the high-crime area in which the stop occurred. 

Writing for the majority of the court, Justice Elspeth Cypher wrote that all of those factors combined – Paris’ uncharacteristic behavior, the men’s history with firearms and gangs, and the high-crime area – were enough to provide reasonable suspicion to search Sweeting-Bailey. “Although each of these factors standing alone would be insufficient to justify the pat frisk of the defendant, the totality of these factors justified…the pat frisk,” Cypher wrote. 

Cypher wrote that the court is concerned about the disparate impact traffic stops have on people of color, and the decision does not mean any occupant of a car may be searched based on the conduct of their companion. But she wrote that the specific facts in this case created a reasonable suspicion that the passengers were armed and dangerous.  

In a concurrence, Justice Dalila Wendlandt said explicitly that while racial disparities in the criminal justice system are stark and unacceptable, this case is not about racism. “Today’s decision does not allow officers to stop and pat frisk drivers or passengers simply because they are Black or Brown, and today’s decision does not rest on stereotypes,” wrote Wendlandt, the first Latina to serve on the state’s highest court. “It neither solves systematic racism nor contributes to it.” She wrote that Sweeting-Bailey does not claim the stop was racially motivated, and the specific facts in the case justify the police’s suspicion.  

But Budd, in her dissent, vehemently disagreed that race played no role. Budd said the more straightforward explanation for Paris’ behavior was not that he was trying to divert attention from a weapon in the car, but that he believed the police were unfairly harassing him.  

“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,” Budd wrote. To conclude otherwise, she wrote, “is to not only ignore the reality of race-based policing, but also perpetuate it.” 

Budd argued that the actions of the police were based on speculation, not fact, and do not meet the standard of reasonable suspicion. She worried that the court’s decision allowing the actions of the police will increase racial disparities in policing by inviting officers “to pat frisk first and invent explanations later.”  

“It does not, of course, expressly authorize officers to pat frisk a person simply because of his or her race,” Budd wrote. “The racial disparities in our criminal justice system are decreasingly the product of overt racism or facially discriminatory rules. These persistent disparities are, rather, more and more the product of neutral rules of deference that affirm the decisions of racially biased actors.” 

The dissent of Justice Frank Gaziano, who was joined by Black justice Serge Georges, argues that the police in this case acted based on speculation, not facts. While Gaziano’s dissent does not focus on race, it too shares Budd’s concerns that in its majority ruling “the court disregards the adverse impact its decision will have on individuals and communities of color.” 

Some attorneys and advocates had hoped the SJC would use the case to more closely scrutinize police use of gang designations, which some argue leads to over-aggressive policing of young men of color. Gaziano wrote that gang membership can be a pretext for racial bias. But the court did not delve too deeply into that issue, with Cypher discussing it mainly as one of several factors that can be considered in looking at the overall circumstances.    

In recent years, advocacy organizations have increasingly pushed for judicial appointments to be made with an eye toward racial, gender, and ethnic diversity. Their argument is that judges with different lived experiences view circumstances differently and interpret the law accordingly. The Sweeting-Bailey decision could provide fodder for future discussions about representation.