Thursday, July 30, 2020

Two judicial views of the "two Americas"

This post is long but worth it, as are the various opinions written by the judges in United States v. Curry. The question to be resolved by the en banc Fourth Circuit was straightforward: did exigent circumstances justify the suspicionless stop and search of Bill Curry? But the resulting opinions are an evaluation of predictive policing, its effectiveness, and its racism.

A short summary of the facts: Four officers responded to gunshots heard near a public housing community in Richmond, Virginia. They drove to a nearby field where they saw several black men walking away, including Bill Curry. An officer stopped Curry, told him to put his hands up, demanded that he lift his shirt, then eventually restrained and searched him, revealing a firearm. Curry moved to suppress the firearm.

The government admitted that the officers did not have reasonable suspicion to stop Curry, but argued that exigent circumstances allowed the stop and search. Under this theory, officers could have stopped and searched anyone in the vicinity because they were investigating the gunshots. The Fourth Circuit rejected this argument. In the context of an investigatory stop of a person, the court limited the exigent-circumstances exception to situations where officers have identified a discrete group or area, and then engaged in minimally intrusive searches in the immediate aftermath of a known crime. Here, none of those requirements were met.

Judge Wilkinson's dissent starts thus: "We face again in this day of sad and unhappy truths the divide between what are already two Americas.” But the two Americas of Judge Wilkinson's view are one "where citizens possess the means to hire private security or move to safer neighborhoods" and a second where "crime moves to fill the vacuum left by the progressive disablement of the law's protections." Judge Wilkinson warns that the majority opinion signals the end of "predictive policing," which uses "big data and machine learning" to "identify likely areas of crime" and "stop criminal offenses before they occur."

Chief Judge Gregory pens one of the three concurrences, focusing mainly on responding to Judge Wilkinson. Chief Judge Gregory writes that Judge Wilkinson's "recognition of a divided America is merely a preamble to the fallacy-laden exegesis of 'predictive policing' that follows.” He describes the over-policing of minority communities, and cites Frederick Douglass and James Baldwin to note the “long history of black and brown communities feeling unsafe in police presence.” He writes that “we know that many of our fellow citizens already feel insecure regardless of their location. In a society where some are considered dangerous even when they are in their living rooms eating ice cream, asleep in their beds, playing in the park, standing in the pulpit of their church, birdwatching, exercising in public, or walking home from a trip to the store to purchase a bag of Skittles, it is still within their own communities—even those deemed ‘dispossessed’ or ‘disadvantaged’—that they feel the most secure.” Chief Judge Gregory argues that communities should not be forced to make the false choice to either give up constitutional protections against suspicionless searches seizures or forego governmental protection entirely. 

Chief Judge Gregory argues that the important point is not the strategies police officers use to decide how and where to deploy their resources, but "how they, upon arrival, engage with the people in those neighborhoods." He suggests no "tough on crime" or "smart on crime" approach will work without engagement with the community. Curry and others tried to point the officers toward the location of the gunshots but the officers were “aggressive, discourteous, and ineffective.” They “ignored the assistance and the shooter got away.”

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.