CONCORD, N.H. –The New Hampshire Supreme Court today released an historic decision which concludes that race can be considered when determining if someone was not free to leave—and was therefore seized—in encounters with the police. Put simply, a person of color may feel that they do not have the ability to leave a police encounter, whereas a White person in the same situation may feel they have the ability to leave.
When someone is not free to leave, they are “detained” or “seized” by police under the New Hampshire Constitution. For example, whether a person who is Black feels free to leave must naturally be influenced by the numerous, well-documented instances where Black people have been shot leaving a police interaction. The Court’s decision rejects a remnant of white supremacy and recognizes that perspectives from people of color must be incorporated into how courts view certain cases.
As is the trend nationally, people of color in New Hampshire are the subject of police encounters at disproportionate rates compared to White people. Equally disturbing is that Black people in New Hampshire have a 2.8 times greater chance of being arrested compared to White people.
Gilles Bissonnette, legal director at the ACLU of New Hampshire, said, “Today’s decision is a victory for racial justice and equality, and the Court should be commended for it. Now, courts should meaningfully account for power dynamics, which are particularly askew between police officers and communities of color. People of color have for too long been ignored by a legal standard which, whether explicit or not, identifies the ‘reasonable person’ as White with the implicit privileges that go with that status. We are thankful that the Court has determined that the New Hampshire Constitution – in recognizing race as a factor in analyzing police encounters – rejects this view."
Joseph Lascaze, Smart Justice organizer at the ACLU of New Hampshire, said, “The Supreme Court’s clear decision of how race can play into these situations is a great first step in addressing the legal racial inequities in New Hampshire. Police seizures of people of color is something that happens more than people realize, and it is often hard to see how race plays a role in whether someone feels “free to leave” if one has never experienced it—so this public acknowledgement is encouraging.”
Jordan Thompson, racial justice organizer at the ACLU of New Hampshire, said, “This important decision recognizes that race is an issue in New Hampshire and that the law should reflect the experiences of people of color. New Hampshire is not immune from racism and white supremacy, and so it is a positive step that the state’s Supreme Court resolutely acknowledged this today."
Based on 2014 data, New Hampshire has a Black/White imprisonment disparity ratio of 5.2 to 1 and a Hispanic/White ratio of 2 to 1. In New Hampshire, Black people also have a 5 times greater chance of being jailed compared to White people—a statistic that is well above the United States average where Black people are 3.5 times more likely to be in jail than White people. And in Hillsborough County — the most populous and diverse county in the state — Black people are nearly 6 times more likely to be in jail than White people.
The person challenging the lower court’s ruling was represented by Donna Brown and Michael Eaton of Wadleigh, Starr & Peters, PLLC. The ACLU of New Hampshire filed a friend-of-the-court brief addressing the issue of race and police encounters in the case.
