Court of Appeals Says Jogging While Black is Enough

Jogging while black, 4 1/2 blocks away from the scene of a bank robbery justifies the violation of an individuals privacy. Say it isn't so!

On July 22, 2009, the Iowa Court of Appeals decided the case of State of Iowa vs. Antony Sherrod. In doing so the Court held that a black man "wearing dark clothing and jogging, walking real fast" 4 1/2 blocks away from where a credit union was robbed by a black man wearing "a light blue coat, baggy blue jeans" was sufficient to justify the police officer to stop him and order him to the ground.

The Court of Appeals decision creates legal authority for law enforcement to stop an individual with the same skin pigmentation as a suspect within a 4 block radius of where a crime took place. This simply cannot jive with the mandates of the 4th Amendment that before an officer may intrude upon an individual's freedom and expectation of privacy, he must first have specific and articulable facts that justify that intrusion and a mere suspicion or hunch is not sufficient. It has also long been established that merely being in close proximity to where a crime has occurred is insufficient to justify such an intrusion. Finally, the constitution requires that the government take the steps that result in the least intrusion into an individuals privacy when investigating suspected criminal activity.

The purpose behind these constitutional requirements is to maximize citizens' privacy and require officer's to engage in effective and thorough police work. Privacy trumps law enforcement interests unless the proper investigation is undertaken that reveals the necessary evidence providing probable cause. In the classic admonition by United States Supreme Court Justice Bradley: "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments thereon." Boyd v. United States, 116 U.S. 616, 635 (1886). Unfortunately, trial courts and evidently appellate courts appear to be more and more, disregarding the fundamental principals of our constitution and are sanctioning law enforcement taking "easy street" in their investigations. They are allowing law enforcement to cut corners because they believe that they got the right guy and it is much more "efficient" to jump to conclusions than to do a thorough, objective and unbiased investigation that requires patience and time. This is the same attitude that has resulted in countless wrongful convictions based upon shoddy police and forensic work throughout the nation. More importantly this ruling in essence, sanctions seizure of individual's persons based upon skin color and location to criminal activity, opening up an entirely different can of worms that is only magnified by the recent arrest of distinguished Harvard Professor, Henry Louis Gates, Jr.

It would be easy in Mr. Sherrod's case to argue "well they got the right guy" which may well have been the court's mindset; however the constitution requires that the courts focus be on the information available to the officer at the time of the search. A search or seizure cannot be validated merely because it turned out that the officer was correct. To do so would be to create a body of law that utterly disregards what must be present prior to the invasion of privacy and utterly undermine the spirit and purpose of the 4th Amendment. Innocent people would be searched without justification but because evidence was not discovered, they would never be charged and the matter would likely never come up before the court to tell law enforcement that what they did was illegal. The danger that arises from the Sherrod ruling is that subsequent law enforcement actions are based upon prior appellate court decisions. Thus, law enforcement is not armed with legal authority to stop and detain individuals of the same color in the general vicinity of a crime. This opens the door to wholesale abuse by law enforcement.

One may ask, what should the officer had done? The answer is quite simple; wait, watch and conduct a legitimate investigation. The description of the suspect that was given by the victims of the robbery was very specific. The individual was wearing a light blue coat and baggy blue jeans. The robbery took place at 12:02 p.m., in broad daylight. The officer could have followed the suspect, determined whether the specifics of what he observed, i.e. height, weight, build, clothing, matched the specific description provided by the victims as opposed to taking immediate action based upon his observation of "dark clothing." The officer could also have made his presence known and watched the suspect's reaction. If suspect appeared nervous, began running or acted in an otherwise suspicious manner, the specific and articulable facts creating probable cause would have obviously increased. A little bit of time and patience by the officer would have alleviated any question as to the legality of the intrusion into Mr. Sherrod's privacy. What many members of the public and even law enforcement officers do not understand is that law enforcement itself is often times a criminal's best friend. In their haste to "collar the bad guy" officers jump the gun creating arguments and issues for the defendant when a patient, well executed, investigation could easily eliminate any legitimate argument that a defendant may have once the case gets to court.

Mr. Sherrod still has the opportunity to ask the Iowa Supreme Court to review the Court of Appeals decision, and hopefully, the Iowa Supreme Court will recognize the gravity of the ruling in this case and exercise its corrective function and accept and correct this controversial and potentially dangerous decision.