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.”

Sunday, July 19, 2020

"Thank you for getting in the way."

You should watch the excellent John Lewis documentary, 'Good ...

Tenth Circuit Breviaries

Fourth Amendment

In United States v. Cortez, the Tenth Circuit held that officer questioning did not unreasonably delay a traffic stop, and that the development of reasonable suspicion justified further questioning and detention until Border Control arrived.

On the way to that holding, the Court reminded us that district courts should not evaluate suppression claims "in the light most favorable to the government." Rather, they "must assess the credibility of witnesses and determine the weight to give to the evidence presented; the inferences the district court draws from that evidence and testimony are entirely within its discretion." 

Fifth Amendment/Miranda

Also in Cortez, the Tenth Circuit reconfirmed that no Miranda warnings are necessary before officer questioning during an ordinary traffic stop.

Previously, in Tenth Circuit Breviaries

If you missed last week's Breviaries, you can read them here.

Monday, July 13, 2020

Police-Prosecutor Codependence

As we call for police accountability, let's remember this is just one front in the fight. Police often escape consequences because they are protected by prosecutors who, in turn, have little to no accountability. The Washington Post ran an opinion piece by D.C. public defender Rachel Cicurel, Don’t stop with the police: Check racism in the prosecutor’s office. She reviews widely substantiated statistical evidence of prosecutorial bias against people of color and recounts her own experience in the courtroom as "prosecutors fight to keep officers’ misconduct secret after they’ve unconstitutionally targeted, stopped and searched a person of color." And she offers another painfully familiar refrain: "I’ve listened to prosecutors absurdly claim that a chronically ill black man was as likely to contract covid-19 at home as he was inside a crowded, filthy jail." She closes with a call for prosecutorial accountability. While they hide behind policy, practice, and management, "the truth is: They do have a choice."

Prosecutors often choose to protect police. They fight against disclosing Giglio information. If they lose the fight, they ask for protective orders that preclude the defense from using information in other cases. They invoke the heavy burden of Armstrong to deter discovery of racially discriminatory policing and prosecutorial practices, such as stash house sting operations. They invoke the good-faith doctrine to save bad searches that targeted people of color. And the list goes on. Yet prosecutors are rarely called out for perpetuating the  misconduct.  

Understanding the myriad reasons that prosecutors choose to protect police is the first step toward reform. To Serve and Protect Each Other: How Police-Prosecutor Codependence Enables Police Misconduct, 100 BULR 895 (2020), looks to legal precedent and social sciences to show "the persistent, codependent relationship between police and prosecutors exacerbates police misconduct and violence and is aided by prosecutors in both legal and extralegal ways." While suggesting policy and legislative reforms, the article does not really contemplate defense initiatives. 

That is our responsibility. One approach is systematic Giglio litigation tied to faithful collection, tracking, and publication of impeachment information. With that data, we can challenge the prosecution's continued reliance--or codependence--on reprobate police. Meaningful data is a powerful tool for change.    

Want to read more? Here you go: Jonathan Abel, Brady’s Blind Spot:Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team, 67 Stanford Law Review 743 (2015). 

Let's get to work.

-- Melody

Tenth Circuit Breviaries

ICE holds & pretrial release

The Bail Reform Act does not preclude removal under the Immigration and Nationality Act. And "the government does not need to make a choice between a criminal prosecution or removal." Thus, a district court that releases a person before trial in a criminal case is not required (or, it seems, even authorized) to order ICE not to remove that person during the period of pretrial release. So said the Tenth Circuit in United States v. Barrera-Landa.

Fourth Amendment

Anthony Kapinski shot and killed two other men during a fracas in a crowded parking lot, and then fled. The investigating detective interviewed eyewitnesses and reviewed surveillance videos of the event. The detective secured a warrant for Mr. Kapinski's arrest by way of an affidavit that did not mention the surveillance videos. Those videos ultimately supported Mr. Kapinski's claim of self defense, and he was acquitted at trial. He sued the detective and the city for false arrest and malicious prosecution. The district court granted the detective summary judgment. Mr. Kapinski appealed.

The Tenth Circuit affirmed in Kapinski v. City of Albuquerque. The Court held that the detective's omission of any mention of the videos in the search-warrant affidavit was not material. Even with the videos, the affidavit provided probable cause. And there was insufficient evidence that the omission was reckless, especially in light of the detective's inclusion of other self-defense-supporting facts in the affidavit.


In United States v. Wyatt, the Tenth Circuit reversed Mr. Wyatt's two convictions for conspiracy to sell guns without a license, because the district court failed to instruct the jury that any conspiracy had to be wilful, that is, that the conspirators had to know that what they had agreed to do was unlawful. But the Court rejected Mr. Wyatt's argument that the evidence was insufficient to prove the charged conspiracies.

ACCA predicate offenses

In United States v. Cantu, the Tenth Circuit held that Mr. Cantu's prior convictions for Oklahoma drug offenses were not ACCA predicates. This was because Oklahoma defines "controlled dangerous substances" more broadly than the ACCA defines controlled substances. The Tenth Circuit rejected the government's argument that the Oklahoma statute is divisible as to each controlled substance. The takeaway? First, read Cantu to learn how divisibility works. Second, always review the statutes underlying your client's prior drug convictions. If, at the time of your client's prior offense, those statutes covered drugs not covered by federal law, you may have a good argument that your client's prior conviction is not a sentence-enhancement predicate.

Thursday, July 9, 2020

Which gun with which offense?

A person convicted of a drug crime with a mandatory minimum is eligible for the safety valve--and thus freed from the mandatory minimum--if, among other requirements, he did not "possess a firearm or other dangerous weapon. . . in connection with the offense." 18 U.S.C. § 3553(f). In United States v. Hodgkiss, the Eighth Circuit held that “the offense” strictly means the offense of conviction, and does not include relevant conduct. In Hodgkiss, the defendant pleaded guilty to a drug-trafficking offense in April 2018 that did not involve a gun, and also pleaded to possessing a weapon during a different drug-trafficking offense two months later. The court held that the defendant did not possess the gun in connection with the April 2018 drug-trafficking offense he was convicted of, even if both episodes were part of the same relevant conduct for sentencing guideline purposes.

Although it doesn't appear that the Tenth Circuit has addressed this statutory-interpretation question directly, this holding is consistent with what the Tenth Circuit has said. For example, in United States v. Hargrove, 911 F.3d 1306, 1328 (10th Cir. 2019), the court emphasized that for the safety-valve requirements, possession of a weapon does not include a codefendant's weapon, and means an "active possession whereby there is a close connection linking the individual defendant, the weapon and the offense.”  

Thursday, July 2, 2020


In honor of Independence Day, we offer the words of Frederick Douglass, excerpted from his 1852 speech to the Rochester Ladies' Anti-Slavery Society: "What To The Slave Is The Fourth Of July?"

1852) Frederick Douglass, "What, To The Slave, Is The Fourth Of ...Feeling themselves harshly and unjustly treated by the home government, your fathers, like men of honesty, and men of spirit, earnestly sought redress. They petitioned and remonstrated; they did so in a decorous, respectful, and loyal manner. Their conduct was wholly unexceptionable. This, however, did not answer the purpose. They saw themselves treated with sovereign indifference, coldness and scorn. Yet they persevered. They were not the men to look back.
As the sheet anchor takes a firmer hold, when the ship is tossed by the storm, so did the cause of your fathers grow stronger, as it breasted the chilling blasts of kingly displeasure. The greatest and best of British statesmen admitted its justice, and the loftiest eloquence of the British Senate came to its support. But, with that blindness which seems to be the unvarying characteristic of tyrants, since Pharaoh and his hosts were drowned in the Red Sea, the British Government persisted in the exactions complained of.
The madness of this course, we believe, is admitted now, even by England; but we  fear the lesson is wholly lost on our present ruler.
* * *
What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour. 
* * *
Fellow-citizens! there is no matter in respect to which, the people of the North have allowed themselves to be so ruinously imposed upon, as that of the pro-slavery character of the Constitution. In that instrument I hold there is neither warrant, license, nor sanction of the hateful thing; but, interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT.

Read the entire speech here. And have a safe holiday.