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importantly, Officers McLaughlin and Smith both admitted that Chisholm never attempted to
flee before or during detention.
Under those circumstances, Chisholm was neither physically capable of fleeing nor
behaving in a manner reasonably suggestive of imminent flight or evasive behavior. Indeed,
“[w]alking away from the police hardly amounts to the headlong flight . . . and of course would
not give rise to reasonable suspicion by itself, even in a high-crime area[.]” United States v.
Valentine, 232 F.3d 350, 357 (3d Cir. 2000). Thus, “[w]e decline to equate [Chisholm’s] few
backward steps upon seeing several uniformed officers rush toward him with headlong flight.”15
United States v. Lowe, 791 F.3d 424, 434 (3d Cir. 2015). Rather, “a few startled steps back in
the face of onrushing, armed police officers is entirely consistent with a surprised reaction and
even acquiescence.”16 Id.
Indeed, Chisholm did not even have the opportunity to turn “around in an attempt to
walk, much less run.” Id. Therefore, “these few steps backward hardly could transform his
limited movement in response to the onrushing officers into flight” or some other form of
evasion. Id. As a result, the Commonwealth’s characterization of Chisholm’s backward
movement as evasive or pre-flight behavior is not supported by the record and cannot sustain a
15
See United States v. Johnson, 620 F.3d 685, 691-92 (6th Cir. 2010) (holding that a
suspect who “looks like he might run” but did not actually flee had not engaged in flight, and
cautioning that courts may not treat speculative impressions of possible flight as evasive
conduct); see also Moreno v. Baca, 431 F.3d 633, 643 (9th Cir. 2005) (rejecting the
characterization of a suspect’s act of walking away from police as the type of “headlong flight”
and recognizing that such conduct may reflect disengagement rather than evasion).
16
See Lowe, 791 F.3d at 434 (rejecting the government’s characterization of the
defendant’s conduct as flight where the defendant took a few steps backward while facing
approaching officers, concluding that such movement was consistent with a surprised and non-
evasive reaction and declining to equate it with headlong flight sufficient to support reasonable
suspicion). See also State v. Thornton, 213 N.E.3d 808, 817-18 (Ohio Ct. App. 2023) (holding
that “the action of simply backing away, slowly, over a short distance, from two police officers
exiting a police cruiser, in a high crime neighborhood, . . . is not sufficient to give rise to a
reasonable, articulable suspicion that criminal activity is afoot”).
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