-: SJC 1 3 3 29 Commonwealth v Michael Van Rader Jr.
-: Okay. Go on.
-: Good morning. And may I please the court, John Warren,
on behalf of Michael Van Rader.
For two reasons we are asking that you reverse
the motion judge's denial of
the motion to suppress.
First, when Mr. Van Rader and the juvenile
were stopped on a path in Jamaica
plane, there was no reasonable suspicion for the stop,
not where the stop was,
based on a bare bones and generic description,
two guys wearing hoodies on bikes that was the dispatch and
not where it was conducted nearly a mile away and not where
Mr. Van Rader and the juvenile did not even match that bare
bones and generic description.
Second, the stop violated Mr. Van Rader's
equal protection rights. Where a review of the
F I Os of the officers who conducted the
stop over 18 months revealed that 90%
of the individuals those two officers.
-: Did the Commonwealth rebut that evidence?
-: No.
-: Why not?
-: Well,
what I would suggest is that the statistics in this case
90, which, and I'm gonna get to that,
but essentially 90% of the people that.
Judge: I get the statistics, you answer my question.
-: So what I would suggest is that
the statistics in the circumstances of this case
where the officers had discretion
based on that generic tip, based on it being a mile away,
considering the statistics that Mr. Van Rader
established a reasonable inference and that at
that point
-: Can the same evidence that supports reasonable articulable
suspicion satisfy the equal protection inquiry?
-: What I would suggest is that the best
articulation of how
the Commonwealth would rebut it is from Long and what
Your Honor said in Long was the Commonwealth
needs to respond to all inferences and all the facts.
And so what I would suggest,
once the defendant has met that threshold of reasonable
inference,
the Commonwealth needs to take it apart and grapple with not
only the facts of the stop, but also with the statistics,
at that point.
-: Okay, so you, so assuming they don't attack
these stats,
they can marshal the facts of the stop to say there was a
neutral race, neutral reason to stop.
Correct?
-: I do not think that would be sufficient in rebuttal.
Once the defendant has established a reasonable inference,
I think they need to grapple with all of the inferences and
all of.
-: All right, let me give you a hypothetical.
These 90% police officers are walking the same beat.
They walk past the house,
they hear a scream from the house out of the house bursts a
suspect carrying a bloody knife and they tackle them.
Is that okay?
-: What I would suggest is that it would be very difficult in
that circumstance for the defendant to.
-: These are the 90% people. Right?
So you raised, you raised the inference.
Warren: Right.
-: Has that been rebutted?
-: What I would suggest is that it would be difficult for
the defendant to establish a reasonable inference
that, that stop was based on race.
And, I think.
-: So the same facts that support the stop,
can support can be used to rebut the inference.
At least in that hypothetical.
-: I think that, you know,
and I don't think there's law in it, but I think
in thinking about that, that's what makes sense.
What makes sense is that.
-: I get what we said in Long,
that you have to grapple with all the factors,
but can it be that just like in jury selection,
there is a race neutral reason
and the judge credit or not credit in here,
justice Krupp looked at it and said what these people,
it did rebut the inference.
-: What I would suggest is that
the way this court going forward should look at these
pedestrian stops is to think of it on a continuum of
discretion from more discretionary stops.
I would put Mr. Van Rader's case in that position
all the way to your honor's hypothetical.
And that's why I think a totality of the circumstances test
makes sense with respect to equal protection
pedestrian stops because it's gonna give judges
the tools of figuring out where along that continuum
the stop lies
and that the statistics should be considered
in that context.
And there's language in law about statistics being
considered are always considered in context.
And so I think in your honor's hypothetical,
the statistics in that context are not going to give a
defendant a great argument as to a reasonable inference of
selective enforcement.
-: That's why I think these two cases are harder because they
involve, you know, reports of gunfire
and police response as opposed to as you've probably seen
someone who's on the street trespassing or
a much more discretionary action where they stop
and frisk
-: Right. There's no question about that. I mean, you know,
we could think about a hypothetical involving.
-: And I get it.
The case is the case and you brought,
you raised Long and Judge Krupp agreed with you.
-: Well what I would say is -
-: He agreed with you that Long applies to.
-: Right, right. And I think that to your honor's point,
we can come up with a hypothetical based on a trespass case
that's different than this case.
However, I would suggest that
although it is a serious incident
and although that should be considered
not only for a reasonable suspicion
but also probably for equal protection, it's,
the discretion that the officers had in this case.
And that's based on the generic tip,
which was essentially two guys wearing hoodies on bikes,
which these two kids did not even meet
'cause they weren't on bikes.
-: So you've, you basically just (indistinct),
had the same comment in many ways that you just said
in footnote 11 in the Long,
if you remember that's the O U I footnote where
the inference, it drives against the inference.
Warren: Right.
-: So what's interesting about
what you said is that when you
look at the circumstances on the regional inference
and if the reasonable inference is satisfied,
then when you get to the non-exclusive Long factors,
which would have to be re-crafted to some extent for
pedestrians, you'll look at the circumstances.
So if that's what footnote 11 suggests
in Long,
and if that's the basically the situation,
if you took the facts of,
of Depino with the police shooting
and close by and the specifics of the description
on the inference and or on
applying the non-exclusive factors, how does it come out?
-: Right. I think, I, again,
I think it goes back to that continuum of discretion
and to justice Gaziano's hypothetical,
when someone's running out of the, you know,
essentially the police officer observes a conduct that the
statistical weight is going to tell you less because there's
less discretion in that stop.
-: Should you even get discovery in that context?
Warren: I.
-: You got discovery in your case, but -
Warren: Right.
-: We're gonna turn every case into, you know,
basically an enormous discovery issue.
But do you get discovery when,
I mean I had the same concern that, you know,
the question that Justice Gaziano raised,
so the guy's running out there with a bloody knife and they
tackle him and it's Springfield,
the last case,
do you get discovery in that case because we're,
they may have implicit bias,
these officers or they may have actual bias,
but that's not why they tackled the guy.
-: Right? I mean I think, and again it's,
this is not a discovery case,
but I think it should be a low threshold and that -
-: But we're gonna have to,
there's gonna have to be some tinkering of Long at every
step, isn't there?
Because this is different because we don't,
we're not dealing with car stops and the fact that there's
so much discretion there,
I mean maybe the F I Os are that way,
but the Terry stops are the hard issue, you know,
we're gonna have to make changes,
aren't we in all three levels of this?
-: I think the articulation of the discovery standard in Long
would apply to this situation, which is -
Judge: Which is -
-: Material and it's essentially
material. Judge: It's rule 14 .
-: It is rule 14.
-: So Rule 14, so apply it.
Okay,
well it doesn't pay here 'cause it's not a discovery case.
-: [Voice On Loud Speaker] So council,
if Justice Kafker is finished with that question.
Justice Kafker: Yeah, I'm done.
-: [Voice On Loud Speaker] I'd like to ask you about
the F I O report.
They are, there are some in our record,
the experts analyzed these F I O reports
and she's just looking at a federal report
which had ethnicity and the narrative so
she could determine whether the search or the frisk of the
person or the vehicle.
So she could make a determination about that.
Those are submitted I think, but are there,
were there any other F I O reports that she looked at
that are not in our record?
-: So I don't think that the full F I Os are in
the record appendix
in terms of, that she relied upon.
-: [Voice On Loud Speaker] Right. Are they.
Warren: They were in exhibit at the hearing.
-: [Voice On Loud Speaker] Admitted to the trial court?
Warren: Yes.
On a CD.
-: Did the F I Os include,
I, obviously the field into observations,
but do they include non-constitutional deprivations in the
F I Os? Meaning if they go up to a kid on the block and say,
"Hey, who are you, who's your buddy?"
and then write down.
-: Yes. I think F I Os would include both situations,
both an actual Terry constitutional stop in a non-Terry.
-: Doesn't really align with the Long does it?
Because Long, a traffic stop is always a constitutional
deprivation.
Warren: Well, I would
-: You need justification to stop a vehicle.
-: I would push back on -
-: You don't need justification to walk up to a kid on the
street and say, "Hey"
Warren: Right.
-: "You know, you from around here, who's your buddy?"
-: I would push back on that and say
it doesn't need to be a constitutional stop to raise a
separate equal protection issue.
These are separate doctrines.
Justice Gaziano: Selective law enforcement.
-: Well, I think selective enforcement,
it doesn't need to rise to the level of a constitutional
moment like a Terry stop. And I think -
-: Was that challenged below, by the way,
the use of the F I O versus the use of a, arrest?
-: In this, I mean in this case,
our position was always that when the officer got out and
said, "Hey you guys." Basically, that, that was a stop.
And that's essentially what Judge -
-: You've probably litigated a bunch of times,
"Hey, you guys" or "Can I talk to you?"
That's sometimes a stop, sometimes not a stop.
-: Right.
And Judge found it to be, Judge Krupp found it to be a stop
and the commonwealth has conceded in this case,
it was a stop and I would suggest -
-: But I meant the F I O, it's not in this case.
Warren: Oh
-: But it wasn't litigated below, right?
As far as the statistical model
and the use of F I Os versus
arrests.
-: In terms of, in the data that Dr. Fowler analyzed,
I don't think there was a distinction made.
And I don't think there, I don't really know
that, that distinction is that important, frankly.
And I think, you know,
if the hypothetical was that
there wasn't a constitutional moment in terms of
a Terry stop,
I do think unconstitutional
or police conduct,
police investigation that's not on equal footing
that would violate -
-: To your point, we did say you can look
at F I Os in Long so that Judge Krupp was just doing
what we told him to do.
Right?
-: Right.
I did want to talk a little bit about
the reasonable suspicion argument here
and I'm happy to jump back to the equal protection argument,
but what I would suggest is that this case falls in the
footsteps of Warren, Chica, Manaus,
and that's based on the generic description.
And that's really how this case should be viewed.
-: How would Evelyn.
-: And that this case should be distinguished from Evelyn
and Karen K.
And the reason that those two cases are different is because
in those cases the officers are observing the individual and
the things that the individual is doing.
In Evelyn, it was, had his arm close to his waist
observed
an object consistent with the size of a firearm
in that person's pocket.
-: Same time space issue on Evelyn versus,
in this case though, right?
-: Very similar,
but it's those individual observations of that person,
of that person.
And that's what the Karen K. decision I think is,
is along similar lines where it's the officers observing
that particular person and taking their movements
to be suspicious based on their own training
and experience.
And in this case, there's none of that.
In fact, these officers were trained
in that armed characteristics
of a trained gunman and they didn't see any factors that
these two kids walking in Jamaica Plain.
-: So, I think what you'll probably hear based on the
Commonwealth's briefs, although they didn't put it this way,
is that you have a continuity, what's his name?
O'Laughlin I think -
Warren: Right.
-: Officer O'Laughlin is sort of
the person who transfers information in that,
that the bikes become
the linchpin
in order to be able to O'Laughlin
to transfer information.
So I guess my question to you is why are they wrong?
-: So I think Officer O'Laughlin's observations
are very minimally relevant.
He's a half mile away,
he's 300 feet from an obstructed away viewpoint
of the path.
And what he relays is that he sees,
essentially he sees two guys on bikes.
That's basically what he sees.
-: Is there something about look exhausted?.
-: He says they look tired.
-: Pedaling, yeah.
-: Right, pedaling slowly as if they're tired.
But he doesn't know that those are the shooters.
He's just seeing two guys on bikes a half mile away.
-: He's being the conduit. I mean, I get-
Warren: That, and -
-: I'm not trying to phrase it that way, he's a conduit.
-: And I would push back on just
what I would suggest is sort of
a post hoc looking at this.
Like, it's obvious he was gonna see them.
It's obvious they went that way. It's obvious that
the two guys that were stopped were the guys that
Officer O'Laughlin saw.
And because I think,
I think it's speculative to say that Officer O'Laughlin was
seeing the shooters, and I think it's speculative
speculative to say that the people that were stopped were
the people that Officer O'Laughlin saw.
And part of why I say that is because Officer O'Laughlin's
radio description, realtime radio recording,
he says the people he saw were in a black vest
and a black jacket
on bicycles.
The people who are actually stopped are wearing hoodies and
they're walking.
-: I thought the description was hoodies or sweatshirts.
-: That's what Officer O'Laughlin testified to,
but his realtime radio recording, which is in the record.
-: Judge Krupp credited his testimony about hoodies
or sweatshirts, right?
-: And I would suggest that's
-: [Justice Wendlandt] Erroneous
-: Clearly erroneous where you have his realtime actual
statements as to what these two people are wearing,
which is pretty specific, 300 feet away.
Justice Gaziano: I assume you appeached him with that.
-: Right.
And he admitted that that was him on the radio and that's in
the record, he did mark.
-: The nature of the crime cuts against you under
Dupina and Lopes, right?
-: Right.
And I think Mines is, clearly
establishes that that's a factor.
And there's no doubt it's a factor here.
What I, another point I wanted to make.
-: I'm sorry, just because you're over
is the point in your brief.
-: Not specifically. What I would just say, if I could,
your honor, to Karen K., because there was
a question that was asked at Karen K.
and I know that case just came out
-: Yep, yep.
-: Was, one of the questions was,
and it might have been Justice Wenlandt,
was what's the denominator here when we're looking at the
officers making calls on the street?
I believe it was Your Honor, said, well,
what's the denominator?
We know how many firearms they're seizing,
but we don't know how many stops they're making.
And the record is clear on that because one of the officers
testified about how many pedestrian stops he makes and car
stops he makes a month.
When you do that out, it's about 660 a year.
And he estimated he makes about one gun arrest a year.
And what I would suggest is that on both the reasonable
suspicion and equal protection,
this case is not just about the one out of 660,
it's about the 659 other people who,
most of whom are black, are being stopped.
That's really what this is about.
And I think this court,
in terms of search and seizure, Article 14,
this court has established extremely clear,
well-developed rules that everyone, practitioners we know,
we know we're gonna get it, Article 14,
fourth Amendment hearing, we know
the doctrine is well developed,
but with respect to equal protection,
it's underdeveloped and it's not being discussed in courts.
And I think to the extent that this court can further those,
that doctrine on equal protection
to the extent there's
inequality in our criminal justice system,
that that's the answer.
And we can look back and say we tried.
-: Okay. Thank you.
Warren: Thank you.
-: Okay, attorney Sherman.
-: Good morning, and may it please the court?
Katherine Sherman on behalf of the Commonwealth joining me
is Assistant District attorney Michelle Slade,
the trial prosecutor on this case.
I'd like to begin with the question posed at the beginning
of attorney Warren's argument of whether or not the
reasonable suspicion can
the factual basis of reasonable
suspicion can serve as the rebuttal
of a reasonable inference of racial profiling and
argue that it can,
and in this case it more than sufficiently did to the extent
that this court would like to hear more about the facts
surrounding the reasonable suspicion in this case.
-: Forgive me if I don't have it right,
but do you concede that Long applies to pedestrian stops?
-: No Long applies solely to motor vehicle stops for traffic
enforcement civil motor vehicle violations.
-: Why?
-: Because
as the court said in the decision,
it is nearly impossible for drivers not to violate the law.
And for that reason,
the discretion that's in the hands of police officers when
they're making traffic stops, motor vehicle infraction stops
is, ought to provide to defendants a lesser burden for
showing
unequal protection of the laws.
So it is unique to traffic stops
because everyone is violating.
-: Well, everybody walks down the street too.
-: And they are not stopped.
-: Well,
Sherman: Necessar- .
-: When you read the stats of the police officers,
it's kind of striking, isn't it?
Sherman: Well, the distinction
-: And if we, and if Judge Krupp didn't say it applied,
we wouldn't know that these people would
that these individuals.
Strike that.
That black people in this neighborhood
were being pulled over at alarming rates.
-: And the important distinction
would be that a
motor vehicle stop is
constitutionally supported.
It is a legal mechanism for officers to seize a person
if they are violating traffic laws.
And because officers hold that authority for enforcing
traffic laws.
Justice Gaziano: But don't they help?
Sherman: It's very different.
-: Don't they help, don't they hold the authority
to get out of the cruiser and say, "Hey, you come here."
Sherman: And that would not be a constitutional seizure.
-: "Hey you stop, come here."
That's a seizure.
-: And that's certainly
different.
-: Which way does he appoint cut though?
Because at least with the authorization rule,
something's happened
to justify the seizure
and then, you know, there might be a Long issue
that gets litigated.
So, but there is some justification.
Sherman: Yes.
-: Whereas, for an F I O you don't need
anything. So I, so my question is, which way does
he appoint cut.
-: F I Os may not be
supported in the way your honor's suggesting.
F I Os also though may not be a stopper,
an interaction in any sort of sense.
The way that I think, and this is
potentially a side issue,
but the way that it's been being discussed with discovery
issues so far today,
they are not always documenting the stop or personal
interaction with people.
They are as the O stands for sometimes simply observations.
And if I may ask, your Honor to clarify your question,
what do you mean by how does it cut in terms of whether or
not Long should apply?
-: Yeah, so your point is well taken
that with a motor vehicle,
you could just sit anywhere and wait for somebody not to
stop fully at a red light or not signal soon enough before
they turn. So you can pull anybody over
and you're saying that there's been some seizure there
and you're saying with an F I O there isn't,
and I'm saying well,
if you don't need anything for an F I O what's the argument?
Isn't that an argument that maybe we should be concerned
about racial profiling
even more?
Question, it's not an answer.
-: Well, the concern is certainly there, but I think
the question in the context
of these cases as we've cited in our briefs is there is
a mechanism for defendants to prove
unequal enforcement of the law through
Laura and Benetence.
Long is not the mechanism for doing so.
-: Well Long may not be the mechanism for doing so for
I guess is there a distinction between Terry stops outside
of the car context and F I Os
because it seems like Long makes complete sense
for F I Os. It's very,
and just in response to Justice Lowy,
there's even more discretion there.
You can do it for anybody for whatever reason,
but your case is not a F I O case. It's a Terry stop case.
So maybe Long doesn't apply as neatly to Terry stops
out of the car as it does to F I Os out of the car.
You know, F I Os are, sounds like classic
equal protection violations.
-: And at the risk of misunderstanding what the court is
asking,
I'm -
Justice Kafker: My question -
-: I'm little confused.
-: Let me, my question's simpler.
My question, put F I Os aside cause I think that's
a loser for you for the reasons that Justice Lowy just said,
but a Terry stop outside of a car,
may, Long may not fit neatly into that.
You may need to modify Long to make it work there.
Equal protection clearly applies to Terry stops
out of the car. The question is,
does long apply neatly to that circumstance?
It may apply neatly to F I Os,
but it may not apply as neatly to Terry stops, right?
-: It does not. And because there is not
the assumption that similarly situated people are-
-: Not as, there's not as much discretion,
I mean there, discretion is-
Sherman: Correct.
-: Cabined by reasonable suspicion.
And it's not like everyone's driving a car.
You know, your case here isn't a great one,
but you can see like in the previous case,
the guy's got his arm extended like where he looks like he's
holding a gun like a DePina type situation.
You know, it's just,
it's a different calculus maybe than
Laura and Long are, you know?
-: It certainly is because there's
no,
there isn't a presumption that
similarly situated people are behaving in a way that raises,
that rises to the level of reasonable suspicion.
-: Statistics would say otherwise though, right?
In this case?
-: They wouldn't.
And to the court's earlier question about whether or not the
Commonwealth attacked the statistics specifically and
rebutted the statistics. We did.
The Commonwealth cross-examined, the expert produced,
put its own report into evidence and made the point that
the categorization of discretionary stops
was not -
-: But you're bounded by what Judge Krupp found, correct?
Just like -
Sherman: Well
-: You get the benefit of his
reasonable, articulable suspicion findings.
You also get the sword of his findings on
discriminatory stops, correct?
-: And to the extent that he did comment on that,
and I hopefully made this clear in my brief,
he does make that observation that the officers have
stopped significantly more people of color than otherwise.
But he purposefully says,
I'm not going to look into that anymore because the
Commonwealth has rebutted any inference through
reasonable suspicion.
He does not engage in actual analysis of whether or not
those statistics hold up against the
Commonwealth's rebuttal.
-: I read his findings, but he doesn't make findings,
it was the 90% it was this or was that correct?
Sherman: No
-: I haven't read the transcript yet, but -
-: No, he makes a generic
statement.
-: All right, so what's the remedy to this then?
So there's a generic acceptance of this, of the statistics.
What's the remedy on equal protection grounds?
-: He.
-: No, what do you think the remedy should be under equal
protection, if not Long?
-: The,
so the remedy after a judge makes the initial finding of the
validity of the statistics is to allow
the Commonwealth to rebut.
Is that your honor's question?
The judge needs to open the door for
the Commonwealth to rebut
-: No. If you're saying that Long doesn't apply,
what should we do about this then?
How do we address racially motivated stops
if Long doesn't apply?
-: Racially motivated stops based on reasonable suspicion?
-: Based on, yeah,
in this case, the judge found a disturbing pattern
of racially motivated stops.
And I'm asking you, and I think you have to concede
that article 1 in Article 10 would give
a defendant the right to a selective
prosecution argument, correct?
Challenge.
Sherman: Yes.
-: Right, then what do we do with that?
What do we say the remedy should be?
-: The remedy is that, well, I'm not sure if
this is the remedy, but it needs to be analyzed
under Laura and Batons.
It needs to be looked at not-
Needs to be looked at- -: Well, normally
if there's an equal protection violation,
the remedy is dismissal, isn't it?
Whereas in the traffic stop situation,
the remedy has been altered for suppression application of
the exclusionary rule.
-: That is correct. And I-
Justice Kafker: You want us dismiss these cases?
-: Do you want us to dismiss if there's
inequal protection?
-: No, I didn't, no, what I was about to say is though,
that may be an accurate statement in terms of how the law is
applied, that is not accurate as to what should happen
here or what the record is here.
-: Well it's, it shouldn't
I take you disagree with the remedy, but there there is an,
we have to do an equal protection analysis, right?
And now we have discovery that indicates that these officers
have some historic, they either have implicit or,
there's some kind of issue has been raised
about whether there's implicit or explicit bias
on their part.
But at the same time you have shown that and all,
but then what makes it hard for you is we also have a very,
a pretty discretionary decision.
It's the opposite of the hypothetical that Justice Gaziano
raised about the bloody knife.
There is, I mean,
justice, Judge Krupp has given you some good analysis there,
but a lot of discretion has been exercised there.
Don't we have to, I'm just trying to understand what
the structure, you know,
when we deal with discrimination in the employment context,
we have these three part processes.
We've created one, Long, for auto stops
and I think we're asking you if Long doesn't apply,
something has to apply,
there needs to be an analysis that takes us through the next
steps.
An inference has been raised about racial bias.
At the same time there's support for reasonable suspicion.
What do we do with the conflicting things here?
How do we take it to the next steps? That's hard.
Because it's not just Long doesn't apply, it has to,
you need to help us resolve the tension between,
there may be a legitimate police action here,
but there may also be illegitimate police bias involved.
That's tricky.
-: And if I may answer in two parts,
both in the way that Judge Krupp analyzed and decided
along those lines,
and then to your honor's point about the discretion involved
in this stop.
Judge Krupp in the beginning of his rulings of law
makes the note that the police making the stop
had a history of disproportionately stopping people
of color.
But, the Commonwealth had demonstrated that the decision by
the police in this case was not made because of any improper
considerations of race.
So though his findings and rulings may shortcut the full
equal protection, if full equal protection analysis in terms
of the steps that have been laid out in the case law,
he is bypassing aspects of that analysis by coming to the
conclusion.
-: Right but Mr. Warren raises a very good point at the end.
Like we have to provide a more robust way of analyzing that
tension going forward because Article 14
and the Fourth Amendment have very good guidance,
Long has provided that guidance in auto stops.
But we now have this different situation that we
have to flesh out, don't we?
-: There, there may be different situations-
-: This case presents a real tension because the F I O stats
are concerning, at least to Judge Krupp.
I haven't read those stats and I have no idea whether they
really show that F I Os are performed in a biased way,
but not real, not Terry stops.
I just don't know what they show.
-: Agreed, and that is a flaw, maybe
a flaw in his rulings.
But because he bypasses those steps in those analyses as
I mentioned, and at the risk of sounding overtly practical,
but the court has been engaging with the discovery aspects
related to these cases.
In a case where
it is a Terry stop
or, it's different than this case,
I'd imagine some other sort of hypothetical,
there is discovery that would be more narrowly tailored to a
defendant's stop in situation that could
help, that could lead a defendant to meeting
its inference.
Their inference, their burden.
That said,
the breadth of discovery that long allows under
Rule 14, would be different than those scenarios.
Those scenarios, the relevance that needs to be articulated
is that there's a factual basis
of believing that there was racial profiling based on the
context of their case and the,
and the discovery being tailored to the context of
this case.
The way that Long is being applied in situations
outside of a motor vehicle context creates
the lack of logic in terms of somebody being stopped for
suspicion of committing a shooting moments before versus
someone who,
a series of people who have been pulled over for
highly discretionary, non-safety concerning,
motor vehicle stops.
So-
-: Let's just sort of take your position as cautioned
as it can be taken.
Sherman: Yes.
-: You're saying because of that difference,
all three prongs have to be satisfied
for selective prosecution instead of eliminating
the first two like Long does.
Sherman: Yes.
-: That's your condition, right?
-: Yes.
-: And what we need to decide is whether or not, no,
there are similar animating concerns
involving pedestrian stops. I mean, I don't mind to be
too cautioned, but that's what you're saying.
-: Yes, and,
the Commonwealth is not suggesting that
there are not circumstances in which a pedestrian stop
wouldn't, or I will not say
that, that is an absolute bar.
There are pedestrian related stops that may imply traffic
enforcement as the point has already been made today.
Jaywalk.
-: Protection never goes away.
Sherman: Of course.
-: It's whether, how it's proved has to be proven
and you have a different view than the defendant.
And that's what we're gonna take under advisement.
-: I think that's well said.
(Justices laugh)
-: Mean it is.
-: That, thank you very much.