Commonwealth v. Long: A New Standard for Pretextual Stops

Discriminatory enforcement of motor vehicle laws is a symptom of American racism that has a deleterious effect on millions of drivers throughout the United States on a daily basis. To combat the effect of racism on drivers of color, the equal protection doctrine of the 14th Amendment of the United States Constitution makes it illegal to pull over a motor vehicle solely based on the race of its driver.

Some claims of discrimination allege that a police officer was relying on a pretext to effectuate a stop that was otherwise justified by the many laws that govern operating a motor vehicle. In order to address these types of discrimination claims, state and federal courts have developed what is known as the selective enforcement doctrine. The general contours of the selective enforcement doctrine are as follows: First, it is presumed that motor vehicle stops “are undertaken in good faith, without intent to discriminate.” However, a defendant may rebut this presumption by “present[ing] evidence which raises at least a reasonable inference of impermissible discrimination.” When the defendant presents evidence of discrimination, the burden then shifts to the prosecution to show that there was a race-neutral reason for the stop.

There has been a great deal of debate as to what evidence is needed to raise a reasonable inference of discrimination. The Massachusetts Supreme Judicial Court (SJC) first broached this question in Commonwealth v. Lora. In that case, the Court held “that statistical evidence may be used to meet a defendant's initial burden of producing sufficient evidence to raise a reasonable inference of impermissible discrimination.” Even after this decision, Massachusetts courts rarely allowed selective enforcement claims in light of high burden placed upon defendants.

The SJC was very recently called upon to reevaluate its holding in Lora in Commonwealth v. Long. In Long, Boston police officers saw the defendant driving “on a well-traveled and largely residential road in the Clam Point section of Boston.” The police subsequently ran the plate number on the defendant’s vehicle through the criminal record database, which revealed that the vehicle was registered to the defendant’s girlfriend, a black woman, and that the vehicle lacked a valid inspection sticker. The police subsequently stopped the defendant’s vehicle, purportedly due to the expired inspection sticker. The police eventually searched the defendant’s vehicle and uncovered an illegal handgun.

Presented with these facts, the SJC revised their holding in Lora. The SJC held that, in addition to using statistical evidence, the defendant “also may raise a reasonable inference that a stop was racially motivated based on the totality of the circumstances surrounding the particular traffic stop at issue.” This standard is meant to lighten the heavy burden on selective enforcement claimants. At the time Lora was decided, the SJC believed that statistical evidence to prove selective enforcement claims would be widely available due to a statute passed by the legislature in 2000 requiring police departments to report the demographic makeup of their stops. However, this statute lapsed after only one year, and police were no longer required to comply. Thus, it became very difficult to obtain the information necessary to support a defendant’s selective enforcement claim. Defendants with selective enforcement claims were left without legal recourse, as they could not gather the information necessary to support their claims.

The Long Court, in recognizing this problem, not only provided a new framework under which selective enforcement claims can be brought, it also laid out the type of substantive evidence that can be used under a totality of the circumstances standard. Under this precedent, the defendant is entitled to the discovery of materials, such as records of the police officer’s recent traffic stops, departmental policies and the officer’s typical duties and responsibilities. The SJC held that this type of evidence will help paint a picture of the facts surrounding the stop and will help show whether there is a “reasonable probability” that the stop was racially motivated.

The adoption of the totality of the circumstances standard for selective enforcement cases helps Massachusetts avoid problems with the statistical standard that has plagued other jurisdictions. As mentioned above, it is frequently difficult for claimants to gather the statistics necessary to make a selective enforcement claim. Moreover, even when statistics are available, they may not be enough to show that the stop was caused by prejudice against a protected class, including race. See McCleskey v. Kemp, 481 U.S. 279 (1987).

The decision in Long has made Massachusetts a leader in the selective enforcement doctrine. While many states and the federal government are still bogged down by the use of statistics-based selective enforcement law, Massachusetts has moved beyond that to a workable model that makes it easier for the state and defendants to effectively combat racism in the enforcement of traffic laws.