David F. Hamilton
Frank H. Easterbrook
Judge David F. Hamilton of the 7th U.S. Circuit Court of Appeals on Tuesday accused his colleagues of giving the go-ahead to a law enforcement tactic designed to harass black people.
“The phenomenon of police seizures for ‘driving while black’ has long been recognized,” Hamilton wrote in a dissent, citing David A. Harris, “Driving While Black and all Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops,” 87 J. Crim. L. & Criminology 544 (1997).
“In this case, we seem to be taking the further step of enabling police seizures for ‘parking while black.’”
Hamilton wrote he would suppress the gun seized from a car parked in front of a liquor store in Milwaukee with its motor running.
Five police officers in two squad cars used a purported parking violation as an excuse to close in on the vehicle and light it up with headlights, spotlights and flashlights, Hamilton wrote.
The officers immediately opened the vehicle doors, he wrote, and removed and handcuffed the passengers.
Passenger Randy Johnson was charged with unlawfully possessing a firearm — an object the officers could not have seen until after seizing the vehicle and its occupants, Hamilton wrote.
“What happened here was extraordinary,” he wrote. “No other court has tolerated such tactics in such a case.”
Hamilton’s colleagues didn’t see it that way.
The 7th Circuit majority held the seizure passed muster under the Fourth Amendment.
Law enforcement officers are justified in making a stop if they have probable cause to believe a parking offense is being committed, Judge Frank H. Easterbrookwrote, citing United States v. Shields, 789 F.3d 733 (7th Cir. 2015).
“Indeed,” he continued, “because the car was stopped in a public street, police did not need any reason at all to approach and look through the window.”
Easterbrook conceded that the officers in Johnson’s case “did more than just stroll up” to the vehicle parked outside the liquor store.
But the firearm would have been discovered even if one officer equipped with a single flashlight — as opposed to five officers in two squad cars equipped with bright lights — had peered into the vehicle, Easterbrook wrote.
“When discovery would have occurred anyway, through proper means, the exclusionary rule would be overkill and must not be employed,” he wrote, citing Nix v. Williams, 467 U.S. 431 (1984).
Joining the majority opinion was Judge Joel M. Flaum.
The case is United States v. Randy Johnson, No. 15-1366.
Anderson M. Gansner of the Federal Defender Services of Eastern Wisconsin Inc. in Milwaukee argued the case before the 7th Circuit on behalf of Johnson.
Gansner said Johnson is considering seeking a rehearing before the 7th Circuit.
While he’s disappointed with the majority’s ruling, Gansner said, he’s pleased with the dissent.
“Judge Hamilton’s dissent was very persuasive and addressed our concerns and reached the right result,” he said.
Assistant U.S. Attorney Keith S. Alexander of the Eastern District of Wisconsin argued the case for the government.
A spokesman for the U.S. attorney’s office could not be reached for comment.
The five police officers who seized the gun were part of the Milwaukee Police Department’s Neighborhood Task Force Street Crimes Unit.
They were assigned to patrol “hot spots” and, as one officer testified, “look for smaller infractions and hope that possibly they may lead to bigger and better things.”
One evening in January 2014, the officers zeroed in on the car outside the liquor store on the ground that it was parked within 15 feet of a crosswalk in violation of Wisconsin law.
The law contains an exception that allows vehicles to be parked close to crosswalks when cargo or passengers are being loaded or unloaded.
But the law further holds that the vehicle must be “attended by a licensed operator.”
No one was in the driver’s seat of the car in which Johnson was sitting.
U.S. District Judge Rudolph T. Randa of the Eastern District of Wisconsin denied Johnson’s motion to suppress the gun.
Johnson then entered a conditional guilty plea to being a felon in possession of a firearm. He was sentenced to 46 months in prison.
In his dissent, Hamilton argued the rule allowing pretextual traffic stops “should not be extended to mere parking violations where the legal sanction would be only a citation and fine.”
Stops made under the guise of issuing a ticket for a traffic violation are allowed under a combination of Terry v. Ohio, 392 U.S. 1 (1968), and Whren v. United States, 517 U.S. 806 (1996), Hamilton wrote.
Terry, he wrote, allows police to make investigatory stops if they have a reasonable suspicion that a person is committing or about to commit a crime.
Whren allows police to “carry out intrusive traffic stops based on the pretext of investigating a moving traffic violation,” he wrote.
And Hamilton contended these tactics are being employed against a certain segment of the population.
Police would not have engaged in a pretextual search of a parked car in Milwaukee’s affluent east side, Hamilton contended.
The only explanation for the search in Johnson’s case is the neighborhood in which it was conducted, he wrote, “and the correlation with race is obvious.”