925 F.3d 1150

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.
Second, to help explain why the result here is different from that in Illinois v. Wardlow , 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (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, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting California v. Hodari D. , 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ). And if 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 , 146 Wash.2d 166, 43 P.3d 513, 519-20 (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 therefore fits into a longer history of Seattle law enforcement engaging in racially discriminatory policing. 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.
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.

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