The federal judiciary is experiencing a crisis of diversity. President Donald Trump has appointed mostly white men to the courts, undoing the progress his Democratic predecessors made toward building a bench that looks more like the country it serves. Diverse judges bring different perspectives to their work—a deeper understanding of racial discrimination, for instance, or a better sense of how law enforcement can oppress minority communities. These benefits were on full display when, on Thursday, a Black judge had to teach his colleague about the existence of racial profiling by police.
Because it is ubiquitous across the country, racial profiling crops up in the background of countless criminal cases. But it was the main focus of the U.S. Court of Appeals for the 4th Circuit’s decision in U.S. v. Curry on Thursday. The facts are disturbing: Four officers responded to gunshots heard in the vicinity of Creighton Court, a public housing community in Richmond, Virginia. They drove to a field where they thought the shots originated and saw a group of Black men. An officer confronted one of these men, Bill Curry, who pointed toward the area where he believed the shots had come from. The officer abruptly forced Curry to put his up hands, then demanded that he lift his shirt. When Curry refused, the officer restrained and searched him. A struggle ensued, and the officer testified that an illegal revolver fell from Curry’s clothes.
Curry moved to suppress this evidence, alleging that the officer’s search violated his Fourth Amendment rights. To justify even a brief warrantless search, law enforcement must generally have reasonable suspicion that the suspect engaged in criminal activity. And the officers had no reasonable suspicion to search Curry, who was merely a Black man standing calmly in a public space. The police can get around this requirement by citing “exigent circumstances,” including the need to “protect individuals who are threatened with imminent harm.” But even then, officers at least need “specific information about the crime and suspect.” Here, the officers “had no reason to believe that the men walking in the field had anything to do with the gunshots they heard.” Thus, by a 9–6 vote, the court held that the search was unconstitutional.
This conclusion sent Judge J. Harvie Wilkinson, a white Ronald Reagan appointee, into a conniption fit. “We face again in this day of sad and unhappy truths the divide between what are already two Americas,” Wilkinson huffed in dissent. “In one America, where citizens possess the means to hire private security or move to safer neighborhoods, the impact of judicial barriers to effective law enforcement may be minimal. In another America, though, people have no choice but to endure the unintended consequences of our missteps, as crime moves to fill the vacuum left by the progressive disablement of the law’s protections.”
Wilkinson complained that, by limiting cops’ ability to search civilians without suspicion, “courts risk inducing police officers to simply abandon inner cities as part of their mission.” The police, tired of being “wrongly scapegoated,” will flee “high-crime areas,” leaving “the least fortunate among us” to “fend increasingly for themselves.” That abandonment, in turn, will drive out “many minority-owned” businesses and “lead to the emboldening of gangs and drug rings.” Courts will doom “youngsters” to be “recruited as runners for the enticement of easy money,” then “claimed by an addiction that can lead to a lifelong chemical dependency.”
In sum, Wilkinson believed, the majority’s decision imperils “predictive policing,” which uses “big data and machine learning” to “identify likely areas of crime” and stop criminal offenses before they occur.
Chief Judge Roger Gregory, who is Black, felt obliged to respond to this warped jeremiad. (Gregory has bipartisan credentials: Bill Clinton placed him on the 4th Circuit as a recess appointee, and then George W. Bush renominated him.) “When I read the first line of Judge Wilkinson’s dissent,” the chief judge wrote, “I was heartened by the thought: well, at least he acknowledges that there are ‘two Americas.’ But this glint of enlightenment was to serve as a ‘soap box’ for his charge against the majority’s decision.” Gregory continued:
It is understandable that such a pseudo-sociological platform was necessary as his assertions are bereft of any jurisprudential reasoning. More to the point, his recognition of a divided America is merely a preamble to the fallacy-laden exegesis of “predictive policing” that follows. Through his opinion, my colleague contributes to the volumes of work gifted by others who felt obliged to bear their burden to save minority or disadvantaged communities from themselves.
Citing Frederick Douglass and James Baldwin, Gregory noted the “long history of black and brown communities feeling unsafe in police presence.” Alluding to recent, high-profile police violence toward Black Americans, he went on:
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. Permitting unconstitutional governmental intrusions into these communities in the name of protecting them presents a false dichotomy. My colleague insists on a Hobson’s choice for these communities: decide between their constitutional rights against unwarranted searches and seizures or forgo governmental protection that is readily afforded to other communities.
This case, Gregory pointed out, demonstrates why courts should not tolerate unconstitutional policing to prevent crime: That approach isn’t just racist; it also doesn’t work. Here, Curry and his friends tried to point the officers toward the location of the gunshots. In response, the officers were “aggressive, discourteous, and ineffective.” They “ignored the assistance and the shooter got away.” In their zeal to arrest someone—anyone—the officers failed their mission. These “tough on crime” officers did not actually solve the crime.
It did not seem to occur to Wilkinson that “predictive policing” is fraught with the racial biases of those who design programs to make predictions. (In her own concurrence, Judge Stephanie Thacker derided the practice as “little more than racial profiling writ large,” noting that it lets officers violate the constitutional rights of people like Curry for “walking while black.”) The task fell on Gregory to enlighten his colleague about the realities of racist policing, and to inform him that American cities will not descend into an urban hellscape without racial profiling. And yet, in the face of Gregory’s lesson, Wilkinson still chose to dissent. So did his five conservative colleagues, all of whom are white, though none signed on to his tone-deaf opinion. If there were more judges like Gregory in the federal judiciary, Americans might not have to fight so hard to vindicate their most basic liberties.
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