Our constitutional right under Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment to live free of “unreasonable searches and seizures” is one of our most cherished—and most threatened—rights. The ACLU-NH works to safeguard this right to privacy and security from police and government intrusion, including through our opposition to unconstitutional stop-and-frisk and selective enforcement policing, especially those practices that disproportionately harm communities of color.
In this case, we filed an amicus brief on June 13, 2019 arguing that the time has come for courts to acknowledge and incorporate perspectives of people of color in determining how a “reasonable person” would experience officer conduct. We argue that any test that measures how a reasonable person will feel when confronted by police must meaningfully account for power dynamics, which are particularly askew as between police officers and communities of color. Whether an African-American feels “free to leave” -- which determines whether he or she has been seized -- must naturally be colored by the numerous, well-documented instances where African-Americans have been shot leaving a police interaction. Indeed, courts—including the United States Supreme Court—have become increasingly receptive to considering race as a factor in analyses related to police encounters with Black people. People of color, especially African-Americans, have for too long been ignored by a standard which, whether explicit or not, identifies the “reasonable person” as White with the implicit privileges that go with that status.
On January 10, 2020, in a historic decision, the New Hampshire Supreme Court agreed with the ACLU-NH and held that "race is an appropriate circumstance to consider in conducting the totality of the circumstances seizure analysis" in determining whether a person feels free to leave and therefore is seized. The Court further ruled that the State failed to meet its burden to show that the defendant was free to leave and therefore was not seized.