Commonwealth v. Long, 485 Mass. 711 (2020), is a groundbreaking equal protection case, the impact of which will likely reverberate for years. In Long, the SJC set forth a revised framework for challenging traffic stops conducted, in whole or in part on the basis of race. The revised framework contains two dramatic legal Changes;
First, the SJC lowered the defendant’s burden, redefining what it means to establish a “reasonable inference” that a traffic stop was motivated by racial bias. Id. at 721-726.
Second, the SJC expanded the way in which a defendant may raise such an inference, namely by presenting evidence of the “totality of the circumstances” surrounding the stop itself. Id. In short, with Long, the SJC gave “teeth” to the prohibition against racial profiling. Id. at 736 (Gants, C.J., concurring).
“Today, the court expressly acknowledges that discriminatory motor vehicle stops are profoundly harmful to persons and communities of color, and adjusts our equal protection framework for addressing such stops.” Commonwealth v. Long, 485 Mass. 711, 737 (2020) (Budd, J.,concurring).
Prior to Long, successfully challenging a traffic stop on equal protection grounds at a suppression hearing proved exceedingly difficult. The old framework, established twelve years ago in Commonwealth v. Lora, 451 Mass. 425 (2008), required a statistical analysis of the involved officer’s traffic stop data, and held defendants to an unduly high burden. Long changed that. While a defendant may still use information relating to an officer’s prior stops to meet his burden, he is not required to do so; nor is such evidence required to be statistically valid. Long, supra, at 724 & n. 7, 725-726. Long provides the criminal defense lawyer with a practicable method for seeking the suppression of evidence derived from a racially motivated traffic stop.
It is important to note that Long may have a broader reach, as a tool for bringing equal protection challenges to the many forms of inequality in the criminal justice system. But this practice guide will focus solely on challenging traffic stops motivated, in whole or in part, on race.
Legal context: pretextual stops, raced-based stops, and the intersection of the 4th and 14th amendments.
It is helpful to situate Long with a brief discussion of the relationship between traffic stops and two constitutional doctrines: search and seizure (4th amendment/Mass. Declaration of Rights art. 14) and equal protection (14th amendment/Massachusetts Declaration of Rights arts. 1 and 10).
In Commonwealth v. Santana, 420 Mass. 205, 209 (1995), the SJC adopted the “authorization test,” which validated traffic stops, under the search and seizure doctrine, so long as the officer has observed a motor vehicle violation. See also Whren v. United States, 517 U.S. 806, 813 (1996) (adopting the same approach with regard to the federal constitution). This approach generally permits police to perform pretextual stops, i.e. “stops ostensibly made on the basis of a motor vehicle violation, but actually made for the purpose of investigating suspicions of unrelated criminal activity.” Long, supra, at 738 (Budd, J., concurring).
But as the SJC made clear in Commonwealth v. Lora, 451 Mass. 425 (2008), neither Santana, nor Whren, permitted all pretextual stops. Rather, a traffic stop which was the result of “selective enforcement predicated on race” is unlawful, even where the officer had observed a motor vehicle violation, because such stops violate the equal protection doctrine. Lora, 451 Mass. at 438-440. Lora set forth a framework under which defendants could seek to suppress evidence derived from a racially motivated traffic stop by presenting a statistical analysis of the involved officer’s prior traffic stops. Id. at 440-442.
In Long, the SJC determined that Lora had “set the bar too high” for defendants, and set forth a revised test, a “viable means” for defendants to challenge racially motivated traffic stops. Long supra, at 713. As in Lora, the SJC situated the revised framework in Long under the equal protection doctrine.
Concurring in Long, Justice Budd agreed with the Court’s equal protection analysis but explained that she would have gone even further. Justice Budd concluded that the “root” of the problem is pretextual stops generally, “which allow police to utilize traffic stops as a means to act on hunches that are unsupported by reasonable suspicion and often based on the race of the driver.” Long supra, at 737 (Budd, J., concurring). As such, in addition to revising the equal protection framework, Justice Budd would have also deemed all pretextual stops unconstitutional under the search and seizure doctrine. Id. (Budd, J., concurring).1
The upshot is that under the search and seizure doctrine, pretextual stops generally remain permissible. But see Id. at 736-749 (Budd, J., concurring) Meanwhile racially motivated stops are prohibited by the equal protection doctrine and, as this practice advisory discusses, may now be challenged under the more workable test set forth in Long.
The stop of Mr. Long. At about eleven o’clock on a November morning, two officers in Boston Police Department’s gang unit. driving in an unmarked vehicle, noticed a maroon Mercedes pass in front of them on a residential street. The driver was a Black man. The officers queried the vehicle’s license plate and found that the vehicle was registered to a Black woman and lacked an inspection sticker. The officers stopped the vehicle and learned that the driver had outstanding warrants and a suspended license. During a search of the vehicle, officers found a handgun in a bag on the rear passenger street. Id. at 712-714.
Mr. Long’s statistical case. In order to challenge the traffic stop on equal protection grounds, pursuant to Lora, Mr. Long’s defense counsel obtained roughly six years of field interrogation and observation (FIO) reports and citation data relating to the two officers who stopped Mr. Long. He retained a statistician to analyze the data and she concluded that the two officers reported FIOs and issued citations disproportionately high rates for Black drivers, taking into account the estimated racial distribution of motorists in the officers’ patrol area. Id. at 731-734. Interestingly, Justice Budd concluded that “despite the fact that Santana often is cited for the proposition that pretextual stops are valid,” she is not aware of any case that specifically has considered “whether using pretext to make an investigatory stop without reasonable suspicion of the crime sought to be investigated is a violation of art. 14, and if not, why not.” Id. at 749 (Budd, J.,concurring).
Commonwealth’s rebuttal. The officers testified that race played no role in their decision to stop Mr. Long. The prosecutor argued that the defendant’s statistical analysis was unreliable and that “Black drivers were overrepresented in the statistical data because Black individuals commit more crimes.” Id. at 734. The Commonwealth presented no statistical evidence or expert testimony. Id. SJC’s analysis of Mr. Long’s equal protection claim. Even under the more burdensome Lora framework, the defendant’s statistical analysis was “more than adequate” to support his claim that the stop was racially motivated. Id. at 715. Because the Commonwealth failed to rebut the reasonable inference of impermissible discrimination raised by the defendant, the SJC reversed the motion judge’s denial of Mr. Long’s motion to suppress. Id. at 734. Establishing a revised test. More significantly, the SJC acknowledged that in Lora it had “set the bar too high” for defendants seeking to suppress evidence on the basis that a traffic stop was racially motivated. Id. at 712. To “ensure that drivers who are subjected to racially motivated traffic stops have a viable means by which to vindicate their rights,” the Long Court established the following new framework: “A defendant seeking to suppress evidence based on a claim that a traffic stop violated principles of equal protection bears the burden of establishing, by motion, a reasonable inference that the officer’s decision to initiate the stop was motivated by race or another protected class. To raise this inference, the defendant must point to specific facts from the totality of the circumstances surrounding the stop; the inference need not be based in statistical analysis. If this inference is established, the defendant is entitled to a hearing at which the Commonwealth would have the burden of rebutting the inference. Absent a successful rebuttal, any evidence derived from the stop would be suppressed.” Id. at 713.
The defendant bears the initial burden of establishing a “reasonable inference” that the officer’s decision to initiate the traffic stop was motivated by race (or another protected class). Id. at 713.
The burden must be established “by motion.” Id. at 713. The motion “should describe all of the circumstances” of the traffic stop that support a reasonable inference that the decision to make the stop was motivated by race.” Id. at 739.
Significantly, the SJC redefined the meaning of “reasonable inference” in the context of challenging racially motivated traffic stops: “our past interpretations of a ‘reasonable inference’ do not control in the context of traffic stops.” Id. at 723. Under the Long framework, “[w]hile a defendant must show more than the fact that he or she was a member of a constitutionally protected class and was stopped for a traffic citation, the burden must not be so heavy that it makes any remedy illusory.” Id. “[R]easonable inference . . . means simply that the defendant must produce evidence upon which a reasonable person could rely to infer that the officer discriminated on the basis of the defendant’s race or membership in another protected class.” Id. at 723-724. “Conclusive evidence,” the SJC held, “is not needed.” Id. at 724.
If a defendant establishes a reasonable inference that a traffic stop was motivated “explicitly or implicitly” by race, a defendant has met his burden. Id. at 724, emphasis added. The SJC explained: “implicit bias may lead an officer to make race-based traffic stops without conscious awareness of having done so.” Id. at 734.
Race need not be the only motivation for stop in order to establish a “reasonable inference.” “Judges should suppress evidence where a motor vehicle stop is motivated, even in part, by the race of the driver or passenger.” Id. at 736 (Gants, J., concurring) (emphasis added); see also Id. at 726 (stop unconstitutional if the Commonwealth does not rebut the reasonable inference “that the stop was motivated at least in part by race”).
A defendant must point to “specific facts from the totality of the circumstances surrounding the stop.” Id. at 713. These facts could include “statements by the defendant and others, may be based on the defendant’s personal knowledge, the defendant’s own investigation, evidence obtained during discovery, and other relevant sources” Id. at 724. The defendant “need not submit admissible evidence”; inadmissible evidence will suffice. Id.
The SJC set forth a list of several factors a defendant might present to establish a “reasonable inference” that a traffic stop was racially motivated: (1) “patterns of enforcement actions by particular officers,” (2) “the regular duties of officers involved in the stop,” (3) “the sequence of events prior to the stop,” (4) “the manner of the stop,” (5) “the safety interests in enforcing the motor vehicle violation,” and (6) “the specific police department’s policies and procedures regarding traffic stops.” Id. at 724-725.
The reasonable inference “need not be based in statistical analysis.” Id. at 713. Nevertheless, presenting evidence of racial disparities from “weeks or months” of an officer’s traffic stops helps establish a reasonable inference. Id. at 724 & n. 7. Importantly, the SJC made clear that such evidence “need not be demonstrated to be statistically valid” to support a reasonable inference. Id.
Although no longer required after Long, a defendant “still may raise a reasonable inference of racial profiling by demonstrating consistent patterns of racially disparate traffic enforcement by the officer involved.” Id. at 715. In other words, while a defendant may now rely on specific facts from the totality of the circumstances, “the use of statistical data continues to be [another] means by which a defendant may raise a reasonable inference that the challenged traffic stop was racially motivated.” Id. at 722. Presumably, a defendant may raise a reasonable inference with a combination of statistical and non-statistical evidence.
“To meet its burden [to rebut the claim or a discriminatory stop], the Commonwealth would have to do more than merely point to the validity of the traffic violation that was the asserted reason for the stop.” Id. at 726. Rather, the Commonwealth would “have to grapple with all of the reasonable inferences and all of the evidence that a defendant presented, and would have to prove that the stop was not racially motivated.” Id. The Commonwealth must prove that the stop was motivated not even “in part” by race. Id.
Because a defendant must establish a reasonable inference that a traffic stop was racially motivated “by motion,” your defense lawyer will first need to gather information that supports that claim. The SJC significantly expanded a defendant’s ability to obtain court-ordered discovery that will be helpful in making a case under Long. Moreover, because of the flexibility of the new framework, lawyers should consider the myriad avenues, in addition to discovery, for obtaining information that would support a Long motion.
Prior to Long, obtaining the necessary discovery to put forth an equal protection claim was extremely challenging for defendants. Long is a game-changer in this area. The SJC held that “[a] defendant has a right to reasonable discovery of evidence concerning the totality of the circumstances of the traffic stop.” Id. at 725. Further, the SJC instructed that where relevant information exceeds automatic discovery requirements under Mass. R. Crim. P. 14(a)(1), a defendant may seek such discovery through a motion filed pursuant to Mass. R. Crim. P. 14(a)(2). Id.
Discovery must be provided where a defendant establishes “a threshold showing of relevance.” Id., at 740-741. A defendant’s “right to discovery” applies equally to all claims of racially motivated stops, regardless of whether a defendant is pointing to the circumstances of a particular stop or is presenting statistical evidence (or both). Id. at 725-726. The upshot is that defendants are now entitled to a broad array of discoverable information necessary to assess and present a motion to suppress under Long. The following is a non-exhaustive list of some possible discovery materials relating to the circumstances of a particular stop and a potential statistical analysis:
Case-specific materials.
Incident reports
Police radio communications (turret tapes)
Event history sheets (“CAD” sheets)
Body worn camera footage
Officer information
The officer’s typical duties and responsibilities. Id. at 725.
For instance, discovery of three months of an officer’s motor vehicle related FIO reports might contain helpful narrative information (i.e. the officer repeatedly attempts to justify stops of Black drivers based on the same traffic infraction) and statistical information (i.e. Black drivers were included in FIO reports at disproportionately high rates compared with non-Black drivers).
The officer’s recent traffic citations. Id.
The officer’s recent police reports involving motor vehicle stops.
The officer’s recent motor vehicle-based field interrogations and observations (FIOs). Id.
Disciplinary information, including that related to racial bias complaints
Trainings, including on implicit bias, attended by the officer Unit and Department information
Policies and procedures pertaining to the officer’s unit. Id.
The unit’s or department’s traffic citations, police reports, or motor vehicle-based field interrogations and observations (FIOs)
Statistical evidence is not required to raise a reasonable inference that a stop was racially motivated. And even where a defendant presents data of an officer’s (or department’s) prior stops, such evidence “need not be demonstrated to be statistically valid in order to support a reasonable inference.” Id. at 724 & n. 7. If you do plan on hiring a statistician to analyze data, it may be helpful to consult with the statistician prior to making the discovery request. Information on an officer’s (or unit’s, or department’s) traffic stops, including the race of the drivers (or occupants) can be gleaned from, among other sources:
Motor vehicle citations
Field interrogation and observation (FIO) reports
Police reports involving motor vehicle stops
Whose traffic stop data should be requested?
The defendants in Lora and Long presented traffic stop data relating to the officers involved in the particular stop being challenged. But a defendant may request traffic stop data from the involved officer’s unit or the entire department, particularly where officer-specific data is incomplete or unavailable. See Id. at 752 & n. 17 (Budd, J., concurring) (“even assuming a showing of a department-wide, as opposed to an officer-specific, pattern of racial profiling would be a sufficient statistical showing . . .”).
What time-period should the discovery request for this information cover?
In Long, the SJC determined that, as part of the totality of the circumstances test, evidence of stops made in the preceding weeks or months could be probative if those stops revealed racial disparities. Id. at 724 & n. 7. But a defendant should not be barred from seeking substantially more data. Indeed, the defendant in Long presented stop data that spanned over six years. Id. at 731.
A defendant may also be relegated to Mass. R. Crim. P. 17 procedures where a judge determines (correctly or incorrectly) that certain information is not discoverable under Rule 14. Lawyers should remind judges, however, that Long provides defendants with extensive Rule 14 discovery privileges. Nevertheless, valuable information may be obtained via Rule 17. For instance, the Merit Rating Board maintains data regarding all traffic citations issued in Massachusetts. For more information regarding the Merit Rating Board, visit: https://www.mass.gov/merit-rating-board-mrb.
Northeastern University report. The most recent statewide dataset on racial profiling in traffic stops is a May 2004 report prepared by experts at Northeastern University. In her concurrence in Long, Justice Budd suggested that department-wide data from the Northeastern study, which concluded that 249 of the Commonwealth’s 366 police departments appeared to have engaged in racial or gender profiling “may be sufficient” to raise an inference that a stop was racially motivated. Id. at 753 (Budd, J., concurring).
Woke Windows Project. A Boston-specific resource, the Woke Windows Project publishes a variety of data obtained from Boston Police Department through public records requests, including information relating to traffic citations, incident reports, FIOs, SWAT reports and internal affairs reports.
Analyze Boston. The City of Boston publishes data from the Boston Police Department, including field interrogation and observation (FIO) data, on its public website Analyze Boston.
Public records requests. For strategic reasons, or out of necessity, a defendant may seek to obtain traffic citations, incident reports, policies and procedures, surveillance camera information, and numerous other materials via public records requests. Information on filing public records requests are governed by M.G.L. c. 4, § 7.
For cases pending on direct appeal when Commonwealth v. Long, 485 Mass.711 (2020) was decided, and which include the appeal of the denial of a suppression motion brought under Commonwealth v. Lora, 451 Mass. 425 (2008), counsel should argue that Long should be applied retroactively to the case. This will allow the defendant to rely on the more expansive “totality of the circumstances” standard under Long rather than the more restrictive standards of Lora. The SJC in Long did not say whether its decision was prospective or retroactive. A decision is normally applied prospectively if it announces a “new rule”. Commonwealth v. Martin, 484 Mass. 634, 644–645 (2020). Otherwise it is considered an “old rule” that applies retroactively to cases pending on direct appellate review when the case was decided. Commonwealth vs. Sylvain, 466 Mass. 422, 428 (2013). In order to convince the appellate court to apply Long retroactively to his case, the defendant must persuade the Court that Long did not announce a "new" rule, but rather, merely reiterated an "old" rule. Sylvain, supra ("old rule[s] appl[y] both on direct and collateral review.” ). A case announces a new rule when it either: [1] breaks new ground; or [2] imposes a new obligation on the States or the Federal Government; or [3] if the result was not dictated by precedent existing at the time the defendant's conviction became final. Sylvain, supra, quoting Teague v. Lane, 489 U.S. 288, 301, 310 (1989). For example, in Sylvain, the SJC held that the rule of Padilla was an old rule, because it merely applied the established standards for ineffective assistance of counsel to a specific situation – advising a client on the immigration laws.
To argue that Long did not "break new ground”, counsel can point out that Long, by its own terms, merely “revised” the test for proving the Equal Protection violation. The basic principle that racial profiling is unconstitutional remains unchanged. It did not change or expand the right itself, did not change the remedy of suppression, and did not change the burden shifting framework. Nor did it impose a “new obligation” on the Commonwealth's agents, or change what constitutes profiling. Rather, the obligation to avoid disparate treatment remains exactly the same. Counsel can also argue that Long was “dictated by precedent” in the case of Commonwealth v. Buckley, 478 Mass. 861, 871 (2018) (“We...acknowledg[e] valid questions regarding the lasting efficacy of Lora for addressing the issue of pretextual stops motivated by race . . . To the extent we must review the adequacy of our decision in Lora, however, . . . we wait to do so in a case where a driver has actually alleged and laid a proper foundation for a claim under Lora”).
Regarding the remedy to be sought on appeal, counsel should seek a remand for a new hearing where the defendant will have the opportunity to discover and introduce non-statistical evidence in order to satisfy his burden under the totality of the circumstances test. Merely asking the court to apply Long to the record on appeal will rarely be adequate, because the advantage to applying Long is to allow the defendant to rely on non-statistical evidence, which will not normally be present on the record if the motion was filed before Long was decided.
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