FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANIEL DEREK BROWN,

Defendant-Appellant.

No. 17-30191

D.C. No.

2:16-cr-00056-

JCC-1

OPINION

Appeal from the United States District Court

for the Western District of Washington

Carolyn R. Dimmick, District Judge, Presiding

Argued and Submitted November 6, 2018

Seattle, Washington

Filed June 5, 2019

Before: M. Margaret McKeown and Michelle T. Friedland, 

Circuit Judges, and Fernando J. Gaitan, Jr.,* District Judge.

Opinion by Judge McKeown;

Concurrence by Judge Friedland

 * The Honorable Fernando J. Gaitan, Jr., United States District Judge 

for the Western District of Missouri, sitting by designation.
2 UNITED STATES V. BROWN

SUMMARY**

Criminal Law

The panel reversed the district court’s order denying a 

motion to suppress evidence obtained after police officers 

stopped Daniel Brown following an anonymous tip that a 

black man was carrying a gun, which is not a criminal 

offense in Washington State.

The panel held that the officers lacked reasonable 

suspicion that criminal activity was afoot before stopping 

and frisking Brown. The panel wrote that the totality of the 

circumstances does not add up to enough: no reliable tip, no 

reasonable inference of criminal behavior, no police 

initiative to investigate a particular crime in an identified 

high crime area, and flight without any previous attempt to 

talk to the suspect. The panel was particularly hesitant to 

allow flight to carry the day in authorizing the stop, given 

that racial dynamics in our society—along with a simple 

desire not to interact with police—offer an “innocent” 

explanation of flight, when every other fact posited by the 

government weighs so weakly in support of reasonable 

suspicion.

Concurring, Judge Friedland wrote separately to 

elaborate on three points: (1) the presumptive legality of 

carrying a concealed firearm in Washington makes this case 

distinguishable from Foster v. City of Indio, 908 F.3d 1204 

(9th Cir. 2018); (2) to help explain why the result here is 

different from that in Illinois v. Wardlow, 528 U.S. 119 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. BROWN 3

(2000), it is helpful to think of justification for a Terry stop 

as a calculus in which the factors raising suspicion must, 

after aggregating their relative weights, add up to reasonable 

suspicion; and (3) nothing in the record supports the 

conclusion that the officers were stopping Brown simply 

because he was black.

COUNSEL

Jason B. Saunders (argued), Law Offices of Gordon & 

Saunders PLLC, Seattle, Washington, for DefendantAppellant.

Charlene Koski (argued), Assistant United States Attorney;

Annette L. Hayes, United States Attorney; United States 

Attorney's Office, Seattle, Washington; for PlaintiffAppellee.
4 UNITED STATES V. BROWN

OPINION

McKEOWN, Circuit Judge:

Daniel Derek Brown, who is a black man, had the 

misfortune of deciding to avoid contact with the police. 

Following an anonymous tip that a black man was carrying 

a gun—which is not a criminal offense in Washington 

State—police spotted Brown, who was on foot, activated 

their lights, and pursued him by car, going the wrong 

direction down a one-way street. Before flashing their 

lights, the officers did not order or otherwise signal Brown 

to stop. Brown reacted by running for about a block before 

the officers stopped him at gunpoint.

With no reliable tip, no reported criminal activity, no 

threat of harm, no suggestion that the area was known for 

high crime or narcotics, no command to stop, and no 

requirement to even speak with the police, we are left with 

little more than Brown’s flight from the officers, which is 

not enough under the circumstances. In today’s world, 

Justice Stevens’ observations some twenty years ago are 

particularly prescient:

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 the 

police can itself be dangerous, apart from any 

criminal activity associated with the officer’s 

sudden presence.

Illinois v. Wardlow, 528 U.S. 119, 132 (2000) (Stevens, J., 

concurring in part and dissenting in part). Without more 

specific, articulable facts supporting their actions, we 
UNITED STATES V. BROWN 5

conclude that the officers lacked the requisite reasonable 

suspicion that criminal activity was afoot before stopping 

Brown. Accordingly, we reverse the district court’s order 

denying Brown’s motion to suppress.

BACKGROUND

This case began with a 911 call reporting that an 

unidentified resident at the YWCA claimed “they saw 

someone with a gun.” On January 11, 2016, around 

7:20 p.m., Sandra Katowitz—an employee at the YWCA in 

the Belltown neighborhood of Seattle—called 911, which 

dispatched the information to the Seattle Police Department 

(“Seattle Police”). Katowitz stated that “[o]ne of [her] 

residents just came in and said they saw someone with a 

gun.” Katowitz never saw the gun herself. Through 

Katowitz, the resident described the man as a young, black 

man of medium build with dreadlocks, a camouflage jacket, 

and red shoes. The 911 dispatcher asked Katowitz specific 

questions about what Brown was doing with the gun. 

Katowitz answered that all her resident said was that “he has 

a gun.”

Katowitz did not indicate that the resident yelled or 

shouted, was visibly upset by seeing the gun, or was 

otherwise alarmed by the gun’s presence. Also, there was 

no indication that the man was loitering at the residence, was 

known at the YWCA, was harassing or threatening any 

residents there, or had done anything other than be seen by 

the resident. The resident remained in the lobby while 

Katowitz called 911, but on the call the resident can only be 

heard stating that she did not want to provide a firsthand 

report because she “[does not] like the police.” The resident 

did not speak to the 911 dispatcher or the officers who 

responded to the call, nor did she provide her name.
6 UNITED STATES V. BROWN

While Seattle Police officers were speaking to Katowitz, 

two King County Sheriff’s Office Metro Transit Unit 

(“Metro”) officers heard and responded to the 911 call.1 

From his patrol car, Metro officer Ryan Mikulcik spotted 

Brown, who was on foot and matched the 911 description. 

Mikulcik called his partner, Curt Litsjo. Then Mikulcik 

began the pursuit, driving behind Brown slowly for several 

blocks before turning on his patrol lights and driving the 

wrong direction down a one-way street to follow Brown. 

Seeing the lights and patrol car coming from behind him, 

Brown ran. Mikulcik and Litsjo pursued Brown for one 

block before stopping him and ordering him to the ground at 

gunpoint. The officers placed Brown in handcuffs and found 

a firearm in his waistband. A further search revealed drugs, 

cash, and other items.

Brown moved to suppress the evidence from the 

searches, arguing that the officers lacked reasonable 

suspicion to stop him under Terry v. Ohio, 392 U.S. 1 (1968). 

The district court disagreed and denied the motion. We 

reverse.

ANALYSIS

Recognizing that an officer may only “conduct a brief, 

investigatory stop when the officer has a reasonable, 

articulable suspicion that criminal activity is afoot,” 

Wardlow, 528 U.S. at 123, we must consider whether the 

officers’ stop of Brown met this standard. In undertaking 

 1 After speaking to Katowitz, the Seattle Police officers who 

responded to the call at the YWCA updated the dispatcher, saying that 

“we have no victim of any crime.” The record is at best ambiguous as to 

whether the Seattle Police officers updated dispatch that there was “no 

victim of any crime” before Metro officers Mikulcik and Litsjo stopped 

Brown at gunpoint.
UNITED STATES V. BROWN 7

this fact-driven analysis, we consider de novo “the totality of 

the circumstances surrounding the stop, including ‘both the 

content of information possessed by police and its degree of 

reliability.’” United States v. Williams, 846 F.3d 303, 308 

(9th Cir. 2016) (quoting Alabama v. White, 496 U.S. 325, 

330 (1990)); see also United States v. Edwards, 761 F.3d 

977, 981 (9th Cir. 2014).

Here, the lack of facts indicating criminal activity or a 

known high crime area drives our conclusion. 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. At best, the officers had nothing more than an 

unsupported hunch of wrongdoing. The government’s effort 

to rest reasonable suspicion on the tip and Brown’s flight 

fails to satisfy the standard established by Terry and

Wardlow. The combination of almost no suspicion from the 

tip and Brown’s flight does not equal reasonable suspicion.

The tip suffers from two key infirmities—an unknown, 

anonymous tipster and the absence of any presumptively 

unlawful activity.

It is well established that an anonymous tip that identifies 

an individual but lacks “moderate indicia of reliability” 

provides little support for a finding of reasonable suspicion. 

See Florida v. J.L., 529 U.S. 266, 270–71 (2000). As the 

Supreme Court has observed: “Unlike a tip from a known 

informant whose reputation can be assessed and who can be 

held responsible if her allegations turn out to be fabricated, 

an anonymous tip alone seldom demonstrates the 

informant’s basis of knowledge or veracity.” Id. at 270 

(internal citations and quotation marks omitted).
8 UNITED STATES V. BROWN

Even though Katowitz identified herself, the actual 

source of the tip—the resident—remained anonymous. Nor 

did the tip provide any predictive information that might 

have served as indicia of reliability. Compare White, 

496 U.S. at 332 (“Because only a small number of people are 

generally privy to an individual’s itinerary [and future 

behaviors], it is reasonable for police to believe that a person 

with access to such information is likely to also have access 

to reliable information about that individual’s illegal 

activities.”). The Supreme Court has found a virtually 

identical anonymous tip insufficiently reliable to create 

reasonable suspicion. J.L., 529 U.S. at 268, 270–72 (holding 

an anonymous tip that a young black man in a plaid shirt was 

carrying a gun insufficient to create reasonable suspicion).

The Court was clear in J.L. that “a tip [must] be reliable 

in its assertion of illegality, not just in its tendency to identify 

a determinate person.” Id. at 272. None of the officers who 

responded to the 911 call articulated what crime they 

suspected Brown of committing. They stated only that they 

knew he had a firearm, testifying at the suppression hearing: 

“I heard them dispatch a call to a subject with a gun . . . ,” 

and “I heard a call of a subject with a gun at - - in the 

Belltown area.” These statements are illustrative for what is 

not said. Although an officer is not required to identify the 

exact crime he suspects, he must articulate suspicion as to 

some criminality, not simply “an ‘inchoate and 

unparticularized suspicion or hunch’ of criminal activity.” 

Wardlow, 528 U.S. at 123–24 (quoting Terry, 392 U.S. 

at 27).

In Washington State, it is presumptively lawful to carry 

a gun. It is true that carrying a concealed pistol without a 

license is a misdemeanor offense in Washington. See RCW 

§§ 9.41.050(1)(a) (“[A] person shall not carry a pistol 
UNITED STATES V. BROWN 9

concealed on his or her person without a license to carry a 

concealed pistol . . . .”), 9.41.810 (explaining that any 

violation of the subchapter is a misdemeanor “except as 

otherwise provided”). However, the failure to carry the 

license is simply a civil infraction. Id. § 9.41.050(1)(b) 

(“Every licensee shall have his or her concealed pistol 

license in his or her immediate possession at all times . . . .

Any violation of this subsection . . . shall be a class 1 civil 

infraction . . . .”). Notably, Washington is a “shall issue 

state,” meaning that local law enforcement must issue a 

concealed weapons license if the applicant meets certain 

qualifications. Id. § 9.41.070(1).

The anonymous tip that Brown had a gun thus created at 

most a very weak inference that he was unlawfully carrying 

the gun without a license, and certainly not enough to alone 

support a Terry stop. Cf. Delaware v. Prouse, 440 U.S. 648, 

663 (1979) (holding that unless there is a particularized 

suspicion that the driver is unlicensed, officers are prohibited 

from stopping drivers solely to ensure compliance with 

licensing and registration laws).

Faced with this reality, the government now argues that 

the officers suspected that the manner in which Brown was 

carrying his gun was unlawful: it is “unlawful for any person 

to carry, exhibit, display, or draw any firearm . . . in a 

manner, under circumstances, . . . that warrants alarm for the 

safety of other persons.” RCW § 9.41.270. Never mind that 

nothing in the record could support such a finding. No 

evidence shows that the resident was alarmed at the time she 

reported seeing the gun. There is no report that she yelled, 

screamed, ran, was upset, or otherwise acted as though she 

was distressed. Instead, the 911 call reported only that the 

resident “walked in” and stated “that guy has a gun.” The 

911 dispatcher followed up trying to learn more about how 
10 UNITED STATES V. BROWN

Brown was displaying the gun, other than simply possessing 

it. But Katowitz simply reiterated, “[u]h, she just came in 

and said he has a gun.” Both of the officers that stopped 

Brown testified they were responding to a call about a 

“subject with a gun.” Considering the tipster’s anonymity 

and the presumptive legality of carrying a concealed firearm 

in Washington, the “tip” alone did not create reasonable 

suspicion that Brown was engaged in any criminal activity.

The government also offers a post hoc rationale, namely 

that the call coming from the YWCA—a women’s shelter—

was part of the whole picture considered by the officers. 

Nothing in the record suggests that Brown was in the shelter, 

loitering in front of the shelter, or harassing or threatening 

anyone around the shelter. To the contrary, Brown was 

walking away from the shelter at the time of the stop. While 

we do not take lightly the possibility of violence at a 

women’s shelter, such a threat was not part of the totality of 

circumstances confronting the officers who ultimately 

stopped Brown. In the end, the 911 call revealed nothing 

more than an unreliable anonymous tip reporting 

presumptively lawful behavior. That is not to say that the tip 

has no weight, but under the totality of circumstances, it is 

worth little. See United States v. Fernandez-Castillo, 

324 F.3d 1114, 1117 n.3 (9th Cir. 2003).

We next consider Brown’s flight from the Metro 

officers. No one disputes that once the Metro officer 

activated his patrol car lights, Brown fled. But the Supreme 

Court has never endorsed a per se rule that flight establishes 

reasonable suspicion. Instead, the Court has treated flight as 

just one factor in the reasonable suspicion analysis, if an 

admittedly significant one. Wardlow, 528 U.S. at 124 

(“Headlong flight—wherever it occurs—is the consummate 

act of evasion: It is not necessarily indicative of wrongdoing, 
UNITED STATES V. BROWN 11

but it is certainly suggestive of such.”). Nonetheless, the 

Court has a long history of recognizing that innocent people 

may reasonably flee from the police:

[I]t is a matter of common knowledge that 

men who are entirely innocent do sometimes 

fly from the scene of a crime through fear of 

being apprehended as the guilty parties, or 

from an unwillingness to appear as witnesses. 

Nor is it true as an accepted axiom of criminal 

law that ‘the wicked flee when no man 

pursueth, but the righteous are as bold as a 

lion.’ Innocent men sometimes hesitate to 

confront a jury; not necessarily because they 

fear that the jury will not protect them, but 

because they do not wish their names to 

appear in connection with criminal acts, are 

humiliated at being obliged to incur the 

popular odium of an arrest and trial, or 

because they do not wish to be put to the 

annoyance or expense of defending 

themselves.

Alberty v. United States, 162 U.S. 499, 511 (1896). 

Notably, the officers did not communicate with Brown, 

use their speaker to talk with him, or tell him to stop before 

they flashed their lights and then detained him. Under these 

circumstances, Brown had no obligation to stop and speak to 

an officer. See Florida v. Royer, 460 U.S. 491, 497–98 

(1983) (holding that an individual has no obligation to

respond when police approach and ask questions).

The situation was far different in United States v. Smith, 

where the officer activated his siren twice, pulled over, and 

exited his vehicle before commanding Smith to stop. 
12 UNITED STATES V. BROWN

633 F.3d 889, 891 (9th Cir. 2011). Smith, who was in a high 

crime area, turned around and questioned whether the officer 

was talking to him. Id. The officer clarified he was and 

again commanded Smith to stop. Id. After a very pointed 

back and forth with the officer, who made it clear that Smith 

should stop, Smith suddenly broke out into a headlong run, 

which the court found to be for “no other reason than to 

evade.” Id. at 891, 894. As the officer approached, Smith 

said that he had a handgun in his pocket. Id. at 891.

The circumstances here are also very distinguishable 

from what law enforcement faced in Wardlow. There, the 

officers specifically “converg[ed] on an area known for 

heavy narcotics trafficking in order to investigate drug 

transactions” and discovered the suspect holding an opaque 

bag, who immediately ran after looking in the direction of 

the officers. 528 U.S. at 121–22, 124. Assessing the 

situation from the officers’ reasonable perspective, the 

totality of the circumstances—the baggie, the high crime 

area, and the known heavy narcotics trafficking in that 

area—put Wardlow’s flight from the officers in an extremely 

suspicious light. See id. at 124 (“It was in this context [of 

the officers anticipating encountering various people 

involved in drug crimes and seeing Wardlow holding an item 

consistent with drug trafficking] that [the officer] decided to 

investigate Wardlow after observing him flee.”). By 

contrast, in the face of a weak tip, this case presents little 

more than a black man walking down the street in Belltown, 

which the government does not argue is a “high crime” area. 

There is no evidence that Brown was in an area known for 

unlawful gun possession, unlike the “heavy narcotics 

trafficking area” in Wardlow, nor did the officers observe 

Brown holding something or walking in a particular way that 

would corroborate the information that he might be carrying 

a gun. Brown did not refuse to speak with the officers after 
UNITED STATES V. BROWN 13

a verbal request. Although Brown’s flight might be 

suggestive of wrongdoing, it did not corroborate any reliable 

suspicion of criminal behavior.

In evaluating flight as a basis for reasonable suspicion, 

we cannot totally discount the issue of race. In explaining 

his understanding of the limits of the Court’s opinion in 

Wardlow, Justice Stevens recognized that flight can be a 

problematic factor in the reasonable suspicion analysis 

because some citizens may flee from police for their safety. 

See Wardlow, 528 U.S. at 126–140 (Stevens, J., concurring 

in part and dissenting in part). Several years before Justice 

Stevens’ concurrence, our court addressed at length “the 

burden of aggressive and intrusive police action [that] falls 

disproportionately on African-American, and sometimes 

Latino, males” and observed that “as a practical matter 

neither society nor our enforcement of the laws is yet colorblind.” Washington v. Lambert, 98 F.3d 1181, 1187–88 (9th 

Cir. 1996). There is little doubt that uneven policing may 

reasonably affect the reaction of certain individuals—

including those who are innocent—to law enforcement.

In the almost twenty years since Justice Stevens wrote 

his concurrence in Wardlow, the coverage of racial 

disparities in policing has increased, amplifying awareness 

of these issues. This uptick in reporting is partly attributable 

to the availability of information and data on police 

practices.2 Although such data cannot replace the 

 2 For example, relevant to this case, in 2011 the U.S. Department of 

Justice investigated the Seattle Police Department and released a report 

finding “a pattern or practice of using unnecessary or excessive force” 

and “serious concerns” about racially discriminatory policing. U.S. 

Dep’t of Justice, Investigation of the Seattle Police Department 3 (2011), 

https://www.justice.gov/sites/default/files/crt/legacy/2011/12/16/spd_fi

ndletter_12-16-11.pdf. Since this report, the Department has been 
14 UNITED STATES V. BROWN

“commonsense judgments and inferences about human 

behavior” underlying the reasonable suspicion analysis, 

Wardlow, 528 U.S. at 125, it can inform the inferences to be 

drawn from an individual who decides to step away, run, or 

flee from police without a clear reason to do otherwise. See 

id. at 133 (“Moreover, these concerns and fears are known 

to the police officers themselves, and are validated by law 

enforcement investigations into their own practices.” 

(footnote omitted)). Given that racial dynamics in our 

society—along with a simple desire not to interact with 

police—offer an “innocent” explanation of flight, when 

every other fact posited by the government weighs so weakly 

in support of reasonable suspicion, we are particularly 

hesitant to allow flight to carry the day in authorizing a stop.

Even under Wardlow, flight itself—the “consummate act 

of evasion”—is not tantamount to guilt. Although flight may

be suggestive of wrongdoing, the absence of other factors 

here, when considered alongside a tip that is entitled to little 

weight, underscores the lack of reasonable suspicion.

CONCLUSION

In the end, the totality of the circumstances here does not 

add up to enough: no reliable tip, no reasonable inference of 

criminal behavior, no police initiative to investigate a 

particular crime in an identified high crime area, and flight 

without any previous attempt to talk to the suspect. We 

 

subject to a Consent Decree focused on eliminating the identified 

constitutional violations. See United States v. City of Seattle, No. C12-

1282JLR, 2018 WL 6304761, at *1 (W.D. Wash. Dec. 3, 2018). Two 

years after Brown’s arrest, in January 2018, a federal judge determined 

the Seattle Police Department was fully compliant with phase one of the 

Consent Decree, although review under the decree continues. See id. 

at *1–2.
UNITED STATES V. BROWN 15

conclude that the Metro officers did not have reasonable 

suspicion of criminal activity when they stopped and frisked 

Brown. Accordingly, we REVERSE the district court’s 

denial of the motion to suppress.

FRIEDLAND, Circuit Judge, concurring:

I agree that Metro officers Mikulcik and Litsjo did not 

have a reasonable suspicion that Brown was engaged in a 

crime when they stopped him, so I concur in the majority 

opinion. I write separately to elaborate on a few points.

First, the presumptive legality of carrying a concealed 

firearm in Washington makes this case distinguishable from 

our recent decision in Foster v. City of Indio, 908 F.3d 1204, 

1215–16 (9th Cir. 2018), in which we held that an officer 

could have reasonably believed that an anonymous tip 

alleging that an individual had a gun created reasonable 

suspicion. There, even though the tip did not state that the 

person was carrying the gun illegally or was about to commit 

a crime, we held that a reasonable officer “could have 

concluded that the tip . . . provided information on potential 

illegal activity” because it is presumptively unlawful to carry 

a concealed weapon without a permit in California, which 

issues concealed carry permits to only 0.2 percent of its adult 

population. Id. at 1215. In comparison, Washington is not 

only a “shall issue state,” as the majority opinion 

emphasizes; it is also a state in which almost ten percent of 

citizens have concealed carry permits. See John R. Lott, Jr., 

Concealed Carry Permit Holders Across the United States: 

2016, Crime Prevention Research Center, July 26, 2016, at 

20. Especially following our holding in Foster, I believe that 

statistic weighs in favor of concluding that there was no 

reasonable suspicion to stop Brown.
16 UNITED STATES V. BROWN

Second, to help explain why the result here is different 

from that in Illinois v. Wardlow, 528 U.S. 119 (2000), I 

believe it is helpful to think of justification for a Terry stop 

as a calculus in which the factors raising suspicion must, 

after aggregating their relative weights, add up to reasonable 

suspicion. Under this framing, the Supreme Court in 

Wardlow may be interpreted as suggesting that flight affords 

officers most of the reasonable suspicion needed to conduct 

a Terry stop. In Wardlow, the suspect’s presence in the 

narcotics trafficking area while holding an object consistent 

with drug trafficking activity provided enough additional 

suspicion that, taken together with the suspect’s flight, there 

was reasonable suspicion to support a Terry stop. By 

contrast, the tip here was so unreliable that it added less 

suspicion to Brown’s flight than Wardlow’s presence and 

actions in a drug trafficking area did to his. Without more 

than this tip, even if Brown’s flight created a significant 

amount of suspicion, the Metro officers lacked sufficient 

suspicion overall to stop and frisk him.

In my view, however, the Metro officers may have been 

able to stop Brown in a constitutional manner if they had 

approached the situation differently. Because Washington 

law requires an individual to “have his or her concealed 

pistol license in his or her immediate possession at all times” 

and punishes the failure to produce the license on request as 

a civil infraction, Wash. Rev. Code § 9.41.050(1)(b), I 

believe the Metro officers could have approached Brown to 

ask him to show his concealed carry license. The officers 

would not have “seized” Brown, and therefore would not 

have required reasonable suspicion for the interaction, as 

long as a reasonable person in Brown’s position would “feel 

free ‘to disregard the police and go about his business.’” See 

Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting 

California v. Hodari D., 499 U.S. 621, 628 (1991)). And if 
UNITED STATES V. BROWN 17

Brown had failed to produce the license, he would have 

committed a civil infraction at minimum. See Wash. Rev. 

Code § 9.41.050(1)(b). Washington law would then have 

permitted the officers to ask Brown for his name and, if he 

refused, to detain him “for a period of time not longer than 

is reasonably necessary to identify the person for purposes 

of issuing” the infraction. Id. § 7.80.060; see id. § 7.80.050, 

see also State v. Duncan, 43 P.3d 513, 519–20 (Wash. 2002). 

Depending on Brown’s responses and reactions, the officers 

might even have obtained reasonable suspicion that Brown 

did not have a license at all, which would have made his gun 

possession a misdemeanor offense under § 9.41.050(1)(a). 

Once they had such suspicion, the officers could have 

conducted a full Terry stop and frisk.

We are not reviewing the constitutionality of such a 

hypothetical stop here, however, because the Metro officers 

did far more than approach Brown and ask him for his 

concealed carry license. As soon as Brown ran, the officers 

cornered him with guns drawn, handcuffed him, and frisked 

him, transforming the stop immediately into a detention that 

could have only been supported by reasonable suspicion 

existing prior to the detention.

Third, to the extent the majority opinion, particularly its 

reference to the Seattle Police Department’s current consent 

decree with the U.S. Department of Justice, see majority 

opinion, at 13 n.2, could be read as suggesting that race 

explains why the Metro officers initiated the encounter in the 

first place, I want to emphasize that this is not my 

understanding.

Nothing in the record supports the conclusion that the 

officers were stopping Brown simply because he was black. 

In other words, I see no reason to believe the officers were 

using the tip as some pretext to stop Brown and that this stop 
18 UNITED STATES V. BROWN

therefore fits into a longer history of Seattle law enforcement 

engaging in racially discriminatory policing.1 The concern 

that Brown had a gun, regardless of race, was something 

worth investigating, even if the circumstances ultimately fell 

shy of giving the officers reasonable suspicion.

Given the serious public safety threat that firearms 

present, we should not discourage law enforcement from 

investigating whether an individual carrying a gun in public 

is legally allowed to do so. But law enforcement must do so 

in accordance with the protections of the Fourth 

Amendment. Because the Metro officers here did not have 

reasonable suspicion when they conducted a Terry stop of 

Brown, the stop cannot stand under the Fourth Amendment.

With these points of elaboration, I join the majority 

opinion.

 1 Race might help explain why Brown ran. As the majority opinion 

notes, potentially “innocent” explanations of flight include fears based 

on racial disparities in policing. But race is not the only innocent 

explanation that can explain flight—fear of the police for any reason can. 

And our consideration of these innocent explanations does not mean that 

the level of suspicion caused by flight is necessarily reduced when the 

individual fleeing is black. Here, it is the lack of additional facts 

suggesting Brown’s flight was borne out of an effort to hide criminal 

behavior, such as a reliable tip or police observations suggesting illicit 

activity, and not Brown’s race, that drives our analysis.