The Shots Heard Round Richmond
Richmond, Virginia. Formerly, the home of the largest slave-trading center in the Upper South and the capital of the Confederacy during the American Civil War. Currently, the site of protests against police brutality and racial injustice, with activists removing or refacing Confederate monuments. The Chief Judge of the United States Court of Appeals for the Fourth Circuit recently said: “As a country, we are in a moment of reckoning.” See United States v. Curry, No. 18-4233 (Decided: July 15, 2020, Amended: July 16, 2020) (Gregory, C.J., concurring at 38).
United States v. Curry is a case stemming from the suspicionless stop of a pedestrian by the Richmond Police Department less than one minute after multiple gunshots were fired in a high crime area of Richmond. It is a fascinating opinion for a myriad of reasons.
First, the case presents a unique legal issue about the extension of the exigent circumstances doctrine to the suspicionless investigatory detention of a pedestrian, an issue which has rarely come up in prior case law.
Second, the case was decided upon rehearing en banc which means that all fifteen judges of the Court of Appeals participated in this opinion. This resulted in a majority opinion authored by Judge Floyd, joined by eight judges; four concurring opinions (two of which were joined by one judge each); and two dissenting opinions (one of which was joined by five judges). Following who joined whom as to each legal principle was like solving a permutations and combinations question on the SATs.
Third, the Court, yet again, used its opinion (majority, concurrence, and dissent) as a platform to express viewpoints about racial disparities, unconstitutional police conduct, and a policy known as predictive policing. The en banc majority reminded us all that racial minorities and individuals disadvantaged by their social and economic circumstances are not “second-class citizens,” but, rather are entitled to the full protections of the Fourth Amendment. (Floyd, J., majority opinion at 32).
The most fascinating aspect of this case is the expressive dialog among all of the judges. Fifteen fiercely talented legal scholars from just South of the Mason-Dixon line, came together to decide whether the police violated the constitutional rights of a socially disadvantaged person in the heart of Richmond. This resulted in a no-holds-barred opinion, with beliefs so divergent that you might as well be flipping between Chris Cuomo and Sean Hannity on prime-time T.V. Compare (“There’s a long history of black and brown communities feeling unsafe in police presence.” (Gregory, C.J., concurring at 33); “[We live i]n 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….” Id. at 35) with (“[I]mpenetrable and impractical legal regimes will drive police officers from disadvantaged communities.” (Wilkinson, J., dissenting at 64); “We are in danger of making law enforcement in our dispossessed communities a thankless task.” Id. at 64; “[I]f the police are rightly condemned for their abuses, they are often wrongly scapegoated for that whole collection of conditions in deprived communities…” Id.).
Apparently trying to mend the divide as these judges must continue to work together under the same network, Judge Wilkinson dropped a footnote to thank Chief Judge Gregory for his leadership of the Court and to emphasize that he welcomes the perspective of his fellow jurists to provide a good impetus for conversation that is needed to have on significant issues. (Wilkinson, J., dissenting at 63).
Curry highlights issues unfolding not just in Richmond, but all across America.
Before getting too deep into the social issues, let’s begin with the important legal issue that the en banc Court agreed to decide in the first place: “whether the Fourth Amendment’s exigent circumstances doctrine justified the suspicionless seizure of [Curry].” (Floyd, J., majority opinion at 3).
On September 8, 2017, Curry was walking outside in a field, among many other people, when several gunshots went off in a nearby apartment complex called Creighton Court, a public housing community in Richmond. This area was designated by the police as a high crime area because it had been the subject of six shootings and two homicides within the prior three months. Members of Richmond Police Department’s Focus Mission Team (a team dedicated to violent crime and drug suppression) approached the scene within thirty-five seconds after gunshots rang out. Upon arrival, officers had received dispatch calls corroborating the sounds of random gunfire in that area, but the officers did not receive a suspect description or any information that there was a victim involved. Officers began fanning out to look for weapons in people’s hands and waistbands. Mounted with no particularized suspicion that Curry was armed and dangerous, as conceded by the government on appeal, the officers seized and searched Curry, yielding the recovery of a firearm for which he was prohibited from possessing due to his status as a prior convicted felon.
Upon arrest and indictment, Curry moved to suppress the gun. Initially the government relied on the sole theory that Curry’s seizure was a lawful Terry stop and that the officers were justified in later patting down Curry to search for weapons. In a requested supplemental briefing, the government argued in the alternative that exigent circumstances allowed for Curry’s seizure.
The district court granted Curry’s motion to suppress finding that Curry was seized when he halted and raised his hands upon the officers’ initial commands. The district court held that the seizure was not a lawful Terry stop because the officers possessed no reasonable, articulable suspicion of criminal activity particularized to Curry at the time of Curry’s seizure. The district court rejected the government’s argument that Curry’s seizure was justified by exigent circumstances.
The government filed an interlocutory appeal abandoning its Terry justification by conceding that Curry’s stop was suspicionless. The government pursued its claim of reasonableness based on exigent circumstances.
A split panel of the Fourth Circuit reversed the district court’s suppression ruling, with the panel majority relying on both the exigent circumstances exception and the special needs exception.
The full Court granted Curry’s petition for rehearing en banc. The factual findings were not in dispute by the parties. The pure question of law was: Did the situation here rise to the level of exigent circumstances and do those circumstances justify a warrantless and suspicionless seizure of a pedestrian? Ultimately, the en banc majority affirmed the district court’s order granting Curry’s motion to suppress the firearm and held that exigent circumstances did not justify the suspicionless, investigatory stop of Curry because “[t]o hold otherwise would create a sweeping exception to Terry.” Id. at 3.
The majority determined that it only had to look at whether exigent circumstances justified the initial seizure of Curry at the time Curry halted and put his hands up, and need not consider Curry’s actions thereafter.
The exigent circumstances exception applies when there is a “compelling need for official action and no time to secure a [search] warrant.” Id. at 14. (internal citations omitted). The Supreme Court has only identified a few emergency conditions that rise to the level of exigent circumstances including: (1) the need to pursue a fleeing suspect; (2) the need to protect individuals who are threatened with imminent harm; and (3) the need to prevent the imminent destruction of evidence. Id. at 14 (internal citations omitted).
In this case, the government relied on the second type which is known as the “emergency aid” exception or “emergency-as-exigency” exception. Id. at 15. Generally, the exigent circumstances doctrine only justified the warrantless entry and search of private property, and has not applied to a suspicionless investigatory seizure of a person. Id. at 17-18. In the rare cases where the exigent circumstance exception applied to seizure of a person, officers have searched for a suspect implicated in a known crime, in the immediate aftermath of that crime, in an isolated geographic area with clear boundaries, or a discrete group of people. Id. at 19-20 (internal citations omitted).
In the current case, the majority found that the officers who stopped Curry had no information regarding the description of the scene of the shooting or the perpetrator. The officers did not stop everyone close to the scene, akin to a check point. Id. at 20. The officers approached Curry in an open field, at one of several possible escape routes, in an area that they only suspected to be near the scene of an unknown crime. Id. at 21. The officers lacked a description of the suspect’s appearance, or any indication that the suspect was in the vicinity. Moreover, the officers had no reason to believe that the men walking in the field had anything to do with the gunshots they heard. Stopping the men walking in the field, rather than the people closest to the reported location of the shots, illustrates the unrestricted nature of the search. Id. Additionally, the sound of gunshots alone did not give the officers knowledge of an exigency in the same way as an officer armed with knowledge that a victim has been shot.
The majority found that “[a]llowing officers to bypass the individualized suspicion requirement based on the information they had here – the sound of gunfire and the general location where it may have originated – would completely cripple a fundamental Fourth Amendment protection and create a dangerous precedent.” Id. at 23.
In attempting to frame the situation as an emergency that allowed police to stop and frisk Curry, the government made much of the fact that there were several shootings in the area in the weeks leading up to the incident in question. Id. at 31. The majority responded as follows:
[F]or the same reason a person’s presence in a high-crime area cannot alone create reasonable suspicion to justify a Terry stop…we refuse to give this fact any special weight in determining whether the officers faced exigent circumstances. To do so would deem residents of Creighton Court – or any other high-crime area – less worthy of Fourth Amendment protection by making them more susceptible to search and seizure by virtue of where they live. Such an approach ‘risk[s] treating members of our communities as second-class citizens’…and we emphatically reject it here. As we have said in the past: ‘In our present society, the demographics of those who reside in high crime neighborhoods often consist of racial minorities and individuals disadvantaged by their social and economic circumstances. To conclude that mere presence in a high crime area at night is sufficient justification for detention by law enforcement is to accept carte blanche the implicit assertion that Fourth Amendment protections are reserved only for a certain race or class of people. We denounce such an assertion.’
Id. at 32. (internal citations omitted)
Chief Judge Gregory issued a concurring opinion joining the majority in its entirety. The stated purpose of this concurrence was solely to respond to Judge Wilkson’s dissent. (Gregory, C.J., concurring at 33). Chief Judge Gregory, was initially “heartened by the thought” that Judge Wilkinson in his dissent acknowledged that there are “two Americas;” but, he quickly realized that this acknowledgement was a “soap box” for Judge Wilkinson’s charge against the majority’s decision. Id. Chief Judge Gregory accused Judge Wilkinson of taking a “pseudo-sociological platform” to support his assertions, which otherwise “are bereft of any jurisprudential reasoning.” Id.
Chief Judge Gregory criticized Judge Wilkinson for presenting a sordid view of under-policing and for suggesting that the majority opinion will lead to “an America where gated communities will be safe enough and dispossessed communities will be left to fend increasingly for themselves.” Id. at 35 (citing Wilkinson, J., dissenting at 69). Chief Judge Gregory discounted this concern noting that “many of our fellow citizens already feel insecure regardless of their location” because we live “[i]n 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.” (Gregory, C.J., concurring at 35).
Chief Judge Gregory warned that “[p]ermitting unconstitutional governmental intrusions into these communities in the name of protecting them presents a false dichotomy” and that these communities should not have to “decide between their constitutional rights against unwarranted searches and seizures or forgo governmental protection that is readily afforded to other communities.” Id. at 35. Chief Judge Gregory reminded that “[t]he ‘lifelines a fragile community retains against physical harm and mental despair’ must be the assurance that there truly is equal protection under the law.” Id. at 38 (citing Wilkinson, J., dissenting at 70).
Judge Wynn wrote separately to concur fully in the majority’s opinion, to briefly address Judge Wilkinson’s discussion of predictive policing, and to address Judge Richardson’s discussion of the operative facts that supposedly created exigency. (Wynn, J., concurring at 40). Notably, Judge Wynn was critical of Judge Wilkinson’s reliance on “predictive policing” which is the reliance upon statistical inferences to alert the police to “hot spots” of potential crime. Judge Wynn critiqued Judge Richardson’s dissent which came down to two operative facts to support its finding of exigency: (1) gunshots; (2) in a high-crime area. Judge Wynn believes that the dissent will lead to one of two bad results: either people who happen to live in a high crime area will be subject to a lower degree of Fourth Amendment protection, or any time a gun is fired in a populated area, the police may conduct suspicionless and wholly discretionary stops of all individuals in the vicinity. Id. at 45. Judge Wynn determined that people living in “high-crime areas” and that people who have the right to own and carry firearms are not deserving of any less constitutional protection. Id. at 47-48.
Judge Diaz wrote a concurring opinion in which Judge Harris joined. These judges agreed that exigent circumstances did not justify the suspicionless stop of Curry. However, Judge Diaz wrote separately to emphasize that an exigent circumstance may operate as a “special need” in some cases, though not this one. (Diaz, J., concurring at 50). Judge Diaz elaborated on the distinctions between the exigent circumstances doctrine and the special needs doctrine and critiqued Judge Richardson’s support of “nonsystematic” seizures. Id. at 54.
Judge Thacker penned a concurring opinion, joined by Judge Keenan, for the sole purpose of responding to Judge Wilkinson “who writes today with a smooth pen and a tin ear.” (Thacker, J., concurring at 58). Judge Thacker could not “sit silent in the face of Judge Wilkinson’s dissent” in which his endorsement of predictive policing “is little more than racial profiling writ large.” Id. at 58. According to Judge Thacker, “[p]redictive policing is merely a covert effort to attempt to justify racial profiling,” it is “of questionable effectiveness,” and it is “deeply flawed and infused with racial bias.” Id. The “[t]echnology cannot override human flaws” because “any computer program or algorithm is only as good as the data that goes into it.” Id. at 60. The only point that Judge Thacker agreed on with Judge Wilkinson is that “[i]f change is to occur, part of the obligation must lie with police themselves, and the essential efforts they must daily make to earn the trust of their communities and prove themselves responsible stewards of their power.” Id. at 61 (citing Wilkinson, J., dissenting at 70-71).
Then there came Judge Wilkinson’s dissent. Beginning with what Chief Judge Gregory said “heartened” him, Judge Wilkinson wrote: “We face again in this day of sad and unhappy truths the divide between what are already two Americas.” (Wilkinson, J., dissenting at 63). Judge Wilkinson noted the deaths of George Floyd and Eric Garner and characterized those occurrences as crimes against humanity, recognizing that “[t]here exist grave concerns about unfair police treatment of minorities.” Id. While being sensitive to unfair police treatment of minorities, Judge Wilkinson balanced that with the risk expressed by Judge Richardson, “that impenetrable and impractical legal regimes will drive police officers from disadvantaged communities.” Id. at 64. Judge Wilkinson expressed the belief that “[w]e are in danger of making law enforcement in our dispossessed communities a thankless task,” and warned that “if courts, as here, overturn perfectly professional efforts at law enforcement, and steadily immobilize officers from reasonably protecting themselves and the people they serve, then we risk making the notion of high-crime areas an even more self-fulfilling designation.” Id.
Judge Wilkinson believes that in the current case, “the law enforcement officers deserve appreciation, not a rebuke.” Id. Judge Wilkinson applauded RPD’s innovative steps to modernize its policing tactics because “‘predictive policing’ strategies [ ] make its streets safer.” Id. at 65 (internal reference omitted).
According to Judge Wilkinson, “the sole practical takeaway from the majority opinion is that police officers on the scene of an unfolding emergency must sit and wait for identifying information, rather than use discretion and judgment to get control of a possibly deadly event, lest the prevention of a homicide violate the Constitution.” Id. at 67.
Judge Wilkinson, responding to Judge Thacker, suggested that the court should not approve or condemn predictive policing, but “look to its implementation in a given community to discern whether it is infected with odious racial assumptions that society cannot and should not tolerate.” Id.
Judge Wilkinson addressed Judge’s Wynn’s concern that “high-crime areas” would be excuses for indiscriminate interventions with the countervailing effect of police flight from those areas:
I know only that communities deserve the chance to give predictive policing a try …. But by stripping departments of effective public safety programs – and then adding to the inherent dangers and difficulties of the streets a judicial rebuke for even the most professional and minimally-intrusive policework – courts risk inducing police officers to simply abandon inner cities as part of their mission.
Id. at 68.
According to Judge Wilkinson, this abandonment would be “undertaken not with a shout but with a shrug” which then “risks hastening the exodus of small business, many minority-owned, which rely upon law enforcement for protection. It will lead to the emboldening of gangs and drug rings who will feel increasingly free to work their less restricted will.” Id. at 68-69.
Judge Wilkinson views the majority’s opinion as “a lack of respect shown by courts for even good policework.” Id. at 69. “The majority has delivered a gut-punch to predictive policing” and “fails to glimpse the reality that continued reversals of this kind will lead to the absence of officers in those very areas where, for good and human reasons, their presence is needed most.” Id. at 71.
Finally, Judge Richardson’s dissent, joined by Judges Wilkinson, Niemeyer, Agee, Quattlebaum, and Rushing, was a straightforward, strictly legal analysis of the issue. In his opening remarks, Judge Richardson expressed that the majority’s decision was a sweeping one that outlawed a modest response to a serious threat that “guts” the exigent circumstances doctrine and “handcuffs” police response to possible active-shooter situations. (Richardson, J., concurring at 73).
Judge Richardson looked at (1) could the officers reasonably suspect that they faced exigent circumstances, and (2) did the officers respond to those exigent circumstances reasonably? Judge Richardson answered yes to both questions, thus finding that the initial stop of Curry was reasonable and thus lawful. Id. at 81. The officers responded to shots fired just seconds earlier in a densely populated residential neighborhood, there was the prospect the shooter might continue to threaten the safety of the public and the officers, and the officers merely asked the men in the field to show their hands at the initial seizure which was a minimal intrusion both as to scope and duration. Id. at 84-90.
Judge Richardson chides Judge Diaz’s concurrence that suggests that officers could not act without using a roadblock or perimeter. According to Judge Richardson, that “requirement ignores the very nature of an exigency, which calls for urgent action,” such as during an active-shooter situation. Id. at 89.
Judge Richardson rebukes the majority’s categorical limitations on the exigent circumstances doctrine as deeply flawed. According to Judge Richardson, the majority rule is in deep tension with the Supreme Court’s case-by-case balancing approach. Id. at 94. The exigent circumstances doctrine does not hinge on a “known crime,” as required by the majority, but merely on an objectively reasonable basis for perceiving an exigency as has been found in other exigency cases involving burning buildings, injured civilians, and wandering children. Id. at 95. Also, the doctrine does not impose a tailoring requirement of a “controlled area” or “discrete group.” The police must do what they can to respond to an exigency, even if the actions cannot guarantee success. Id. at 97. Judge Richardson dissented because neither the constitution nor compassion support barring the most modest of steps to protect from the most serious of threats. Id. at 99.
If you are still with me at the end of this verbose summary of an even more protracted opinion (99 pages to be exact), then your head, like mine, may be spinning. This highly-charged, socially-relevant, legally-complex, Fourth Circuit opinion gives any reader a lot to mull over. Whether Curry will reign supreme is yet to be seen, but, one thing is for certain, “[a]s a country, we are in a moment of reckoning.” (Gregory, C.J., concurring at 38).
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