The sentiment on the streets on the need for police reforms appears to be seeping into the halls of justice. That includes questions about Fourth Amendment rights prohibiting illegal search and seizure.
The U.S. Court of Appeals for the Fourth Circuit recently upheld a decision by a lower court that Richmond police violated the rights of a convicted felon when they searched him without a warrant, then seized a handgun. Still, there was much dissension among the judges on whether that is illegal. The case may end up in the hands of the Supreme Court.
Those dissenting opinions in the U.S. v. Billy Curry Jr. case speak to what is going on in the world right now and may affect future court decisions, said law professor Carl Tobias, of the University of Richmond.
Here is a boiled-down version of what happened in the Curry incident, according to the judicial decision:
Richmond police patrolling the Creighton Court area of the city heard gunshots about 9 p.m. and drove to Walcott Place within 35 seconds. There they saw five to eight men behind the building walking away from where officers thought the shots originated. None of the men shown in the body camera footage were walking together as they moved away from the complex. Police had no suspect descriptions.
The police ordered some of the men to put their hands up and raise their shirts. An officer said Billy Curry Jr. was walking with a cell phone in his hand, without putting his hands in his pockets or waistband.
“Curry made no furtive gestures, nor did he walk at an accelerated pace indicative of flight,” according to the rehearing proceedings.
An officer told Curry and another man to pull up their shirts. The officer characterized Curry as complying in a “lackadaisical” manner, nonchalantly picking the left side of his shirt, but not lifting it all the way. Curry then turned away.
The officer considered Curry evasive and called on another officer to help pat him down. One officer testified that he felt a hard object like the butt of a gun in Curry’s waistband. A struggle ensued and Curry was handcuffed and taken into custody.
As they handcuffed him, the officers told Curry they had found his gun. One officer testified that he found the flashlight he had dropped during the scuffle approximately one to one-and-a-half feet from where Curry had been taken to the ground. Next to the officer’s flashlight was a silver revolver.
No one was shot in the September 2017 incident. But there had been six shootings and two homicides in Creighton Court, a public housing community, in the prior three months.
What is next?
The case may end up at the Supreme Court due to the lack of clear agreement on the issue. It revolves around a legal term known as “exigent circumstances,” an exception to Fourth Amendment protections against unreasonable search and seizure.
Curry was arrested and charged with possessing a firearm in September 2017 and later indicted by a federal grand jury. His public defenders moved to have the evidence tossed, saying the search and seizure violated Curry’s Fourth Amendment rights.
The government argued the search was conducted using “exigent circumstances,” which can be used in an emergency to prevent imminent danger to life or serious damage to property.
A majority of the appeals court disagreed.
“We hold that exigent circumstances did not justify Curry’s suspicionless seizure and thus affirm the district court’s well-reasoned opinion,” it said in its majority opinion.
The court’s divided opinions invoked George Floyd, Eric Gardner, the Rev. Martin Luther King Jr., among others, with a majority holding that Richmond police violated Curry’s Fourth Amendment rights.
The nine-judge majority had four concurring opinions, while six judges dissented in two opinions, the Richmond Times-Dispatch reported.
In U.S. District Court, Judge M. Hannah Lauck sided with the defense, holding that police could not give any particular reason for stopping Curry and the others who were simply walking nearby. She rejected the prosecutors’ argument that the warrantless search was allowed under emergency circumstances. The government appealed and won a 2-1 decision from a panel of the court. Then, Curry appealed that decision, leaving it in the hands of the full court of appeals.
The majority on the appeals court agreed with Lauck that the stop was unreasonable under the Fourth Amendment.
U.S Appeals Court Chief Judge Roger L. Gregory added: “As a country, we are in a moment of reckoning. And the unpredictability of the future encourages us to want to hang on to those entities that make us feel secure. Still, the facts of this case give us cause to pause and ponder the slow systematic erosion of Fourth Amendment protections for a certain demographic.’”
Questions raised by the case include the kinds of policing done in parts of Richmond and whether that is a good or bad thing for minorities, Tobias said.
“It’s a very complex area,” he said “The dissent pretty strongly disagreed with the majority. Judge (Jay) Richardson did in his dissent. He found other cases that he thought the other way, so my sense is that area is very controversial and the courts don’t agree.”
Judge James Harvie Wilkinson III, in dissenting, said “We face again in this day of sad and unhappy truths the divide between what are already two Americas.”
He went on. “The deaths of George Floyd, Eric Garner, and far too many others have been heartbreaking. They are crimes not only against law but against humanity. There exist grave concerns about unfair police treatment of minorities, and I respect the majority for being sensitive to that. There is also the risk, for the reasons so ably described in the principal dissent by Judge Richardson, that impenetrable and impractical legal regimes will drive police officers from disadvantaged communities — a situation that comes with dire consequences, not only for the wellbeing of our most vulnerable fellow citizens, but for society as a whole.”
Said Judge Richardson, “The touchstone of the Fourth Amendment is reasonableness, and the officers’ response … was eminently reasonable. I fear the majority’s sweeping decision — outlawing a modest response to a serious threat — guts the exigent-circumstances doctrine and handcuffs law enforcement’s response to possible active-shooter situations.”
Chief Judge Gregory said Wilkinson ignores “the familiar perils of over-policing.” He said Wilkinson “presents a sordid view of under-policing, suggesting that the decision will lead to “an America where gated communities will be safe enough and dispossessed communities will be left to fend increasingly for themselves.”
Gregory said he understands the frustrations and uncertainties surrounding how to abate crime. “Thus, in the words of Dr. Martin Luther King Jr., we are (once again) reminded that ‘we are tied together in a single garment of destiny, caught in an inescapable network of mutuality,’ (and) that our individual freedom is inextricably bound to the freedom of others.”
This decision will be binding in the Fourth Circuit, Tobias said, which includes Virginia, West Virginia, South Carolina, North Carolina and Maryland. It will not be binding elsewhere.
This case still may be headed to the Supreme Court, Tobias said, the only court setting the rule of law for the entire nation. “This area of the law is still unclear. It’s always a longshot,” since the Supreme Court only takes up 100 of the 8,000 or so petitions that come its way, he added.
“I’m not an expert in criminal procedure, but I spend a lot of time reading appeals,” Tobias said. “They raise a lot of fascinating questions about society and things like what happened to George Floyd and what happens to African Americans when confronted by police. Those are backdrops to those opinions.”
George Floyd, who was stopped by police for allegedly passing a fake $20 bill, died at the hands of a Minneapolis police officer in May after the officer leaned on Floyd’s neck with his knee until he stopped breathing.
“There is a lot of tension between police and certainly, the African-American community,” Tobias said. “This is one of the fruits of that, I think. Police may be overly concerned about crime or that somebody is engaged in criminal activity and maybe used tools that are not appropriate. This opinion reflects some of that.”