Being black, having a gun and running from police is not a crime, according to the 9th Circuit Court of Appeals, which has reversed a federal judge and suppressed evidence used to convict a Seattle man on federal gun and drug charges.

The unanimous, precedent-setting opinion by a three-member panel of judges on the San Francisco-based appellate court likely means the 2017 convictions of 38-year-old Daniel Derek Brown — and his six-year prison term — will be thrown out and Brown will be freed, according to his attorney. The judges found that two King County Sheriff’s Office Metro Transit officers did not have sufficient  reason to chase him down and arrest him at gunpoint after an anonymous tipster called 911 to report seeing a black man with a gun.

Brown ran after the deputies followed him in a vehicle for several blocks through Seattle’s Belltown neighborhood. They found a loaded handgun, drugs and cash on him after his arrest.

The stop was particularly tenuous, according to the court’s  18-page opinion issued this week, because some citizens — particularly people of color — may have good reason to run from police in these times of heightened racial tension. By itself, it does not form the sort of “reasonable suspicion” an officer needs to justify stopping someone, the court found.

“In evaluating flight as a basis for reasonable suspicion, we cannot totally discount the issue of race,”  wrote Circuit Judge M. Margaret McKeown. She quoted a 2o-year-old opinion by retired U.S. Supreme Court Justice John Paul Stevens, which McKeown says still resonates today: “Among some citizens, particularly minorities and those residing in high-crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with police can itself be dangerous ….”

McKeown said the 9th Circuit has recognized that “neither society nor our enforcement of the laws is yet colorblind,” and noted that “There is little doubt that uneven policing may reasonably affect the reaction of certain individuals — including those who are innocent — to law enforcement.”

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McKeown was joined by Circuit Judge Michele T. Friedland and Judge Fernando J. Gaitan Jr., a district judge from the Western District of Missouri, who was assigned to join the panel. In a separate opinion joining the majority, Friedland said she found no evidence supporting a conclusion that the deputies stopped Brown because he was African American.

However, all of the judges agreed that the deputies had no reason to attempt to stop and question him based on the information they had or the fact that he ran, and that in doing so they violated his Fourth Amendment protections against unreasonable searches and seizures.

According to the pleadings in the U.S. District Court docket and the appellate court’s opinion, the Seattle Police Department’s dispatch center took a 911 call the night of Jan. 11, 2016, from an employee at the YWCA on Third Avenue in Belltown who said that a resident at the facility “saw someone with a gun.” The employee never saw the gun herself and the resident refused to talk to the dispatcher and wanted to remain anonymous, stating she “[does not] like the police.”

The individual with the gun was described as an African American man with dreadlocks and a camouflage jacket. No threats were made and there was no evidence the weapon was displayed, according to the court record.

While Seattle police officers were dispatched to talk to the YWCA employee, a pair of sheriff’s Metro Transit officers working downtown overheard the police dispatch of a man with a gun. Deputy Ryan Mikulcik spotted Brown and called his partner, Curt Litsjo, who was in a separate car, and then began to follow Brown in his vehicle while Litsjo responded. The deputy followed Brown for several blocks before activating his patrol vehicle emergency lights.

At that point, Brown ran, and the deputies pursued him. Mikulcik drove the wrong way down a one-way street, eventually stopping Brown near Fourth Avenue and Lenora Street. Litsjo arrived and got out of his car with his gun drawn, ordered Brown to the ground and handcuffed him.

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During a search, the deputies found a loaded 9mm handgun in Brown’s waistband, two baggies containing rock cocaine in a backpack, and $162 cash.  He was charged in February 2016 in U.S. District Court with being a felon in possession of a firearm — Brown had prior gun- and drug-related convictions in state court — possession of cocaine base with intent to distribute and possession of a firearm in furtherance of a drug crime, a charge that carries a mandatory minimum five-year sentence.

Initially, Brown pleaded guilty to the third charge and faced a 60-month prison term. However, he argued with his public defender whether the deputies had any right to stop him in the first place. He was eventually appointed a new attorney and allowed to withdraw his guilty plea. He asked the court to throw out the evidence against him, alleging an illegal stop.

In an order issued in April 2017, U.S. District Judge John Coughenour denied Brown’s motion to suppress the evidence, citing the landmark 1968 U.S. Supreme Court opinion Terry vs. Ohio, which says police may conduct a “brief, investigatory stop” when an officer has a reasonable suspicion that a crime has occurred, or is about to.  Coughenour pointed out that the law says running from police does not mean a crime has occurred, but it can be “suggestive” of one. He ruled that the anonymous tip of a man with a gun, and Brown’s flight, satisfied the requirements of Terry and that the stop was legal.

Brown agreed to be tried before the judge on facts stipulated by his lawyer and prosecutors, with the understanding that he would appeal Coughenour’s ruling upholding the legality of the stop. The judge convicted him of all three counts and sentenced him to 72 months in federal prison, of which 60 months were mandatory.

In overturning Coughenour’s decision not to suppress the evidence, the 9th Circuit opinion points out that it is presumed to be lawful in Washington to carry a gun, that the anonymous tip lacked any real indication of a crime and that Brown’s flight could be explained by a person of color’s reasonable fear of police.

“The Metro officers who stopped Brown took an anonymous tip that a young, black man ‘had a gun’ — which is presumptively lawful in Washington — and jumped to an unreasonable conclusion that Brown’s later flight indicated criminal activity,” McKeown wrote.

Brown is currently at the Hazelton maximum-security U.S. penitentiary near Bruceton Mills, West Virginia. He was scheduled to be released in May 2021, although his appeal lawyer, Jason Saunders of Seattle, said the 9th Circuit’s opinion means he will be released unless the government appeals.

“Any evidence that came as a result of that illegal stop is inadmissible,” Saunders said. “Daniel has said all along they had no right to stop him. He did a lot of this work himself.”  The opinion, he said, expands the understanding of investigatory stops in the 9th Circuit, which includes 15 judicial districts in nine western states, the Mariana Islands and Guam.

Emily Langlie, a spokeswoman for the U.S. Attorney’s Office in Seattle, said prosecutors are reviewing the opinion and had no comment.

Sgt. Ryan Abbott, a spokesman for the King County Sheriff’s Office, said the case shows that “experienced judges can look at the same set of facts and draw different conclusions,” but said the office accepts the appellate court decision and has “forwarded this case to our Advanced Training Unit for inclusion in our ongoing training.”