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Wednesday, May 25, 2016

Ind. Decisions - 7th Circuit "parking while black" 2-1 split, Hamilton dissents

The 16-page, 2-1 May 17th opinion, out of Wisconsin, is USA v. Randy Johnson. From Judge Easterbrook's opinion for the majority:

Police in Milwaukee saw a car stopped within 15 feet of a crosswalk, which is unlawful unless the car is “actually engaged in loading or unloading or in receiving or discharging passengers”. Wis. Stat. §346.53(5). One police car drew up parallel to the stopped car, and an other drew up behind. Shining lights through the car’s windows (it was after sunset), police saw a passenger in the back seat try to hide a firearm. Randy Johnson, the passenger, was prosecuted for possessing a weapon that, as a felon, he was forbidden to have. 18 U.S.C. §922(g)(1). After the district court denied his motion to suppress the gun, see 2014 U.S. Dist. LEXIS 135367 (E.D. Wis. Sep. 25, 2014), adopting 2014 U.S. Dist. LEXIS 135374 (E.D. Wis. Aug. 7, 2014), Johnson entered a conditional guilty plea and was sentenced to 46 months’ imprisonment. His sole argument on appeal is that the district judge should have granted the motion to suppress. * * *

HAMILTON, Circuit Judge, dissenting. The police violated the Fourth Amendment rights of defendant Johnson and the four other occupants of the car. What happened here was extraordinary. No other court has tolerated such tactics in such a case. Five officers in two police squad cars seized the passengers of a parked car. They swooped in on the car, parking close beside and behind it, with bright lights shining into it from both directions, opened the doors, pulled all passengers out, and handcuffed them. The passengers were seized before the officers had any sign that one passenger might have a firearm.

The sole basis offered to justify this highly intrusive, even terrifying, “investigatory stop” was a suspected parking violation! The phenomenon of police seizures for “driving while black” has long been recognized. See, e.g., 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.”

"7th Cir. Sides With Cops in ‘Parking While Black' Spat," is the heading of a Bloomberg BNA story by Lance J. Rogers, dated May 19th, that begins:
Five members of a special police task force didn't act unreasonably when they swooped down with two squad cars on a stationary vehicle in a high-crime area, yanked the occupants out and cuffed them while purportedly checking to see whether the car had been parked illegally, a divided U.S. Court of Appeals for the Seventh Circuit ruled May 17.

The decision is notable because a dissenting judge accused his colleagues of giving cops the green light to seize minorities for minor infractions in the hope that the detention “will lead to bigger and better things.”

[h/t to Howard Bashman, How Appealing]

Posted by Marcia Oddi on May 25, 2016 02:59 PM
Posted to Ind. (7th Cir.) Decisions