Appeals Court Bashes Predictive Policing And The Judge Who Argued People In High Crime Areas Want Fewer Rights

(Mis)Uses of Technology

from the planning-an-early-retirement-party-for-Judge-Wilkinson dept

A very interesting decision [PDF] has been handed down by the Fourth Circuit Court of Appeals. It not only addresses what constitutes exigent circumstances, but also attacks predictive policing as nothing more than a tool law enforcement uses to enforce a racist status quo.

The decision is long. It has four(!) concurrences and two dissents. Three of the concurrences attack the dissent written by Judge J. Harvie Wilkinson, who believes not giving the government what it asked for blunts officers’ ability to police high-crime areas.

Here’s the Appeals Court’s final ruling, which details the events leading to this challenge, as well as its outcome.

This appeal presents the question of whether the Fourth Amendment’s exigent circumstances doctrine justified the suspicionless seizure of Defendant-Appellee Billy Curry, Jr. The police seized Curry after responding to several gunshots that were fired in or near an apartment complex less than a minute earlier. When the police arrived, they encountered five to eight men—including Curry—calmly and separately walking in a public area behind the complex, away from the general vicinity of where the officers believed the shots originated; several other people, likely visitors or residents, standing around closer to the apartments; and another man walking toward the rear of the officers’ patrol car, who appeared to be favoring one of his arms.

The district court held that exigent circumstances did not justify the suspicionless, investigatory stop of Curry, and so it granted his motion to suppress a firearm and other evidence based on the unreasonableness of the seizure that led to its discovery. We agree with the district court’s conclusion. To hold otherwise would create a sweeping exception to Terry v. Ohio, 392 U.S. 1 (1968).

The government first argued this was a permissible Terry stop supported by reasonable suspicion Curry had something to do with the fired shots officers were notified about. It abandoned that argument during its appeal, admitting the officers had no articulable suspicion. Instead, it relied on the exigent circumstances exception to the Fourth Amendment. In essence, the government argued officers can stop and search anyone in an area they believe a crime has occurred. Not so, says the Fourth Circuit.

The exigent circumstances doctrine typically involves emergencies justifying a warrantless search of a home, not an investigatory stop of a person, and the few cases that have applied the doctrine in the investigatory seizure context are materially distinguishable. In those cases, the government isolated a discrete area or group of people and engaged in minimally intrusive suspicionless searches in an effort to search for a suspect implicated in a known crime in the immediate aftermath of that crime. Requiring such suspicionless seizures to be narrowly targeted based on specific information of a known crime and a controlled geographic area ensures that the exigency exception does not swallow Terry whole. Because these limiting principles were wholly absent from Curry’s stop, we hold that the stop was not justified by exigent circumstances and thus was not reasonable under the Fourth Amendment.

Judge Wilkinson’s dissent starts out promising enough:

We face again in this day of sad and unhappy truths the divide between what are already two Americas.

But then devolves into pro-law enforcement, anti-Fourth Amendment rhetoric:

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. These repercussions, moreover, serve as reminders of the fact that only a segment of this country, the least fortunate among us, ends up shouldering the weightier burden when our branch of government oversteps its proper role.

Wilkinson’s argument is this: to properly police areas where crime is common, the government must be allowed to “overstep its proper role.” And this side of the “two Americas” should just be willing to exchange part of their rights for greater law enforcement efficiency. This tradeoff begins with predictive policing, which relies on biased input to make biased decisions about where police should focus their proactive efforts. This means entire neighborhoods and everyone in them are treated like criminals until they can prove otherwise to the police officer accosting them. Wilkinson thinks this is a good thing and says the limitation on exigent circumstances applied here undercuts law enforcement’s ability to treat hundreds of people like criminals. Predictive policing put these officers near the scene of the shooting, allowing them to respond within seconds. That they responded unconstitutionally doesn’t appear to bother Judge Wilkinson.

It is hard to see how this innovation [predictive policing] can continue under the majority’s conception of the Fourth Amendment. Indeed, 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. This injunction entirely saps predictive policing of its potency, and effectively forecloses the tradeoff— faster responses for fuller information—that innumerable cities have opted for in making their streets safer. This is a mistake.

The ends justifies the means, according to this judge. Wilkinson seems to believe many US citizens would welcome the chance to be proactively viewed as criminals. But the Fourth Amendment stands in the way of this privilege.

Is predictive policing the answer? Is it presumptively too injurious to individual rights in affected areas? Richmond has not been spared the mix of peaceful protests and violent outbreaks evidenced throughout the nation, and I hardly know what might begin to heal this divide. I know only that communities deserve the chance to give predictive policing a try.

Wilkinson suggests the Fourth Amendment can be altered at the state and local level to allow officers more leeway to serve the public by violating the rights.

The Fourth Amendment—and the “reasonableness” standard at the heart of it—is hardly inconsistent with our federalism. States and localities, many of them majority-minority, can choose within “reason” what law enforcement strategies work for them. Their latitude is not infinite, but latitude there is.

This bizarre blessing of Constitutional rights violations by Judge Wilkinson is greeted by three stinging concurrences that spend most of their runtime attacking his dissent. The first is written by Chief Judge Roger Gregory, a Black man (Wilkinson is white), and it is merciless.

When I read the first line of Judge Wilkinson’s dissent 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. 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.

Judge Gregory says subtracting Constitutional protections and adding more cops isn’t going to make communities like these feel any more safe.

[W]e know that many of our fellow citizens already feel insecure regardless of their location. 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.

He then points out that the predictive policing Judge Wilkinson lauds — the software that put officers on the scene of a potential shooting within seconds — didn’t do anything to improve the quality of the police work.

From this perspective, the video of the present incident mimics the aggressive, discourteous, and ineffective policing that concern many. As the officers approached the scene seconds after gunshots rang out, the members of this community, including Curry, pointed them in the direction in which the perpetrator was likely to be found. Because, as Judge Diaz notes in his concurrence, it would have been difficult for the officers “to determine whether any firearm (which, of course, are generally lawful to possess) seized in the effort to identify the suspect was the source of the gunfire,” one would think that the officers’ best hope for finding the shooter was to accept the guidance offered by community members. That, of course, was not the case here. The officers ignored the assistance and the shooter got away. Like most citizens, it is likely that residents of the Creighton Court community do not want police officers to be tough on crime, or weak on crime—they want them to be smart on crime.

The immolation of Wilkinson’s dissent continues in the second concurrence — one that also questions what the judge was thinking when he decided people in high-crime areas should be treated as second-class citizens when crime is being investigated.

While Judge Wilkinson agrees “that the phrase ‘high-crime area’ cannot serve as a facile excuse for indiscriminate interventions,” I am puzzled that in the next sentence, he advocates doing just that by stating, “neither can skepticism toward the preventive potential of predictive policing in violent crime locales allow us to deny its benefits ab initio to communities that might welcome them.” Wilkinson Dis. Op. at 67. Justifying predictive policing on the policy basis that neighborhoods—whether termed “violent crime locales” or “high-crime areas”—“might welcome [it]” still results in the citizens of those communities being accorded fewer constitutional protections than citizens of other communities, as the police accept Judge Wilkinson’s proposed tradeoff: “faster responses for fuller information.” Id. Such an outcome fails as a matter of law. We may not treat citizens as second-class simply because they live in areas that my good colleague calls “violent crime locales.”

The second concurrence reminds Judge Wilkinson of the court’s place in the grand scheme of things. It’s supposed to be a check against government overreach, not an enabler of Constitutional violations.

[O]ur analysis must stay rooted in constitutional principles, rather than turn on naked policy judgments derived from our perception of the beneficial effects of novel police techniques

It also states something overlooked entirely in the second dissent: there are more Amendments in play here than just the Fourth.

People of course have a right to own firearms. And sometimes firearms are discharged near others, whether deliberately or accidentally. If anybody in the vicinity of gunfire can be stopped without reference to any of the Fourth Amendment’s protections, it follows that those protections apply with lesser force to those who own guns and discharge them—and to those who are merely within earshot. And unless we wish to limit such a diminution in constitutional safeguards to those in high crime areas—which we cannot, and should not, do—Judge Richardson’s reasoning would apply with equal force to both economically disadvantaged public housing communities like Creighton Court and wealthy suburban gated complexes.

The fourth concurrence — written by Judge Thacker and Judge Keenan — is equally as harsh in its assessment of Wilkinson’s attempt to stretch exigent circumstances to cover the search of anyone in the general location of a suspected criminal act.

I am compelled to write this separate concurring opinion only in response to the dissenting opinion authored by Judge Wilkinson, who writes today with a smooth pen and a tin ear. Judge Wilkinson’s dissenting opinion accuses the majority members of our court of all but dismantling the rule of law and of “overstep[ping our] proper role.” Wilkinson Dissenting Op., post at 63. I cannot sit silent in the face of Judge Wilkinson’s dissent. In my view, the use of predictive policing, which Judge Wilkinson endorses, is little more than racial profiling writ large.

Wilkinson’s touting of predictive policing (and its apparent attendant reduction of civil liberties) is just as awful as the law enforcement miracle he believes at-risk communities are dying to have inflicted on them.

Over time, predictive policing has been shown to be, at best, of questionable effectiveness, and at worst, deeply flawed and infused with racial bias.

[…]

Technology cannot override human flaws. It stands to reason that any computer program or algorithm is only as good as the data that goes into it. In the computer science arena, this is known as “GIGO” (garbage in, garbage out); flawed data input produces nonsense output. In predictive policing, GIGO is a real concern because “hot spot policing,” which utilizes historical crime data to predict future crime hot spots, can be infected with years of racial bias. Because “historic crime data is biased through the practice of racialized enforcement of law, predictive policing will inherently reinforce and perpetrate this structural racism.”

Finally, there’s an agreement of sorts:

I note that Judge Wilkinson and I agree on one point. “If 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.” […] Thus, to achieve this result, we must never lose sight that it is individual police officers, not a computer program, who abuse their authority by violating the constitutional rights of citizens such as Billy Curry, based on the simple fact that they committed the offense of “walking while black.” No fact in this case ever suggested Billy Curry’s involvement in the commission of the crime under investigation. And the majority’s enforcement of his constitutional rights is the shield that will protect him and others from the bleak future imagined by Judge Wilkinson.

How a discussion of an unconstitutional stop and frisk turned into a spirited defense of one of the worst law enforcement tech developments of the last half-century is something only Judge Wilkinson can fully comprehend. As for most of the rest of the Appeals Court judges, the willingness to cast aside rights in exchange for law enforcement efficiency is truly — and horrifically — inexplicable. Some judges may secretly desire a more police-state-ish existence… at least for some American citizens. Fortunately, the rest of the court isn’t having it. The Fourth Amendment lives.

Filed Under: 4th amendment, 4th circuit, billy curry, exigent circumstances, predictive policing, thoughtcrime