Consensual encounters and unprovoked flight under Henson v. U.S.

One of the problems with bad law is that it leads to even worse law.

I have never been a big fan of the U.S. Supreme Court’s decision in Illinois v. Wardlow, which held that being in a “high crime” area (what part of any U.S. city does not have a lot of crime?) and running away at the sight of a police car (“unprovoked flight”) provides the police with sufficient excuse to detain you.

This contributed to an even worse decision in California v. Hodari D, which held that a person is not seized for Fourth Amendment purposes until he actually submits to a police officer’s command to stop.

And now we have the D.C. Court of Appeals’ recent decision in Javon Henson v. United States, 55 A.3d 859 (D.C. 2012), in which the court uses the Wardlow and Hodari D decisions to broaden the notions of both “consensual encounter” and “unprovoked flight” beyond all recognition.

According to the logic in this decision, a police officer can approach you, accuse you of having committed a crime, grab at you when you refuse a request for a consensual search and start walking away, and then chase after you without any reasonable basis for doing so, all without violating your constitutional rights.

The opinion should finally put to rest this fiction that a person is always perfectly free to terminate an encounter with a police officer by simply walking away.  The decision also renders meaningless the notion of “unprovoked flight” by defining it to include virtually anything.  If accosting you and using physical force to try to restrain you does not constitute a provocation, what possibly could?  

The defendant in Henson was walking along in a “high crime area” in northeast D.C. with two other young men when uniformed police officers pulled up alongside in their squad car, told the young men that, although they were “not in any trouble,” the officers wanted to talk with them about some recent robberies in the area, and asked the young men if they would agree to a pat-down for weapons.  There is no indication in the opinion that the government ever established the reason why this particular area of the District was considered to be a “high crime” area.  Nor did the government seem to present any evidence supporting the officer’s allegations of recent robberies.

Two of the young men consented to the frisk. The defendant initially consented to the pat-down and put his hands on the hood of the car. Apparently thinking better of this, the defendant then “put his hands down” and started walking towards the back of the police car. One of the officers asked him where he was going and “may have” placed his hand on the defendant’s side as he was walking away. When the defendant then began to run away, the officer grabbed the defendant’s jacket, pulling it off his body, and chased after him. And yet the court agreed with the trial court that the defendant was not actually “seized” until he slipped and fell on the snow some twenty or thirty yards away.

It does not seem to occur to the court that some people might consider stopping to speak with a police officer and then putting your hands on the hood of a police car in response to a police request to be an act of submission. After all, I assume it was not the defendant’s idea to put his hands on the car. And this could only have been a consensual encounter if the defendant had in fact been free to leave at any time. The facts in this case prove that he wasn’t.  For all intents and purposes, given the officers’ intentions as evidenced through their later actions, the defendant was not free to walk away the moment the officers pulled alongside him in their squad car.

At the very least, the question should be what the police officers knew at the time they directed him to put his hands on the squad car.  How recent were the robberies?  Where exactly did they occur?  Did any of the young men match a description given in connection with one of the robberies?  In other words:  Was there anything at all that justified the seizure? Anything at all? Bueller?  Bueller?

The court elongates the time period of the seizure so that the defendant can rack up all sorts of other reasons for the officers to detain him. If the defendant had gotten up after slipping and falling on the snow, threatened the police officers and then pointed a gun at them before the officers again had him under control, the court would have undoubtedly allowed the government to factor these acts into the seizure justification as well.

The court justifies all of this by pointing out that there is never any reason to resist a police officer’s attempts to interrogate you:  “Fleeing suspects place in danger the officers who pursue them and the general public.”  And:  “There is no need for an individual to resort to flight to protect his or her rights.” What the court neglects to point out is that, by arriving at this conclusion, it has put to bed once and for all this ridiculous notion that a person who is approached by a police officer in the street is perfectly free to terminate this encounter by walking away.  Submit now, the court says, and assert your constitutional rights later.

The court ignores the Supreme Court’s holding in Terry v. Ohio that defines a seizure as occurring “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.”  It also neglects to mention that the very narrow decision in Hodari D was based on a fact pattern that did not include the use of any physical force.

As for the notion of “unprovoked flight,” the court departs from the Supreme Court’s holding in Wardlow, in which the defendant’s “headlong flight” was prompted by nothing more than the sight of an approaching police car.  In Henson, it was not just that the police officers pulled up alongside of the three young men.  Or that the officers got out of the police car and suggested to the three men that they might be suspected of having committed robberies.  Or that the officers asked for permission to frisk them and then grabbed the defendant when he attempted to leave. Instead, the court suggests by example that provocation could only have occurred if the officer had used “excessive force in carrying out his duties.”  Once again, it is submit now and assert your constitutional rights later.

I apparently have very different sensibilities than the three members of the D.C. Court of Appeals who decided this case. If a police officer approached me on the street and told me he suspected me of a crime and wanted to frisk me, I would not feel as if simply walking away would be a wise thing to do. If I am middle-aged and white, how is a young black male to interpret this?  Our encounter would become even less consensual the moment he puts his hands on me — a consensual encounter of the worst kind.  And if I decided to flee, most people would find it pretty hard to argue that my actions were unprovoked.