By Lorraine Bailey/Courthouse News
CHICAGO (CN) – The full Seventh Circuit on Friday upheld the constitutionality of a police stop said to target a car for “parking while black,” in which Milwaukee officers pulled black passengers out of the car and handcuffed them for parking too close to a crosswalk.
On Jan. 8, 2014, two Milwaukee police cruisers pulled up beside and behind a parked car full of passengers waiting in front of a liquor store. The car was running and had its lights on.
Shining spotlights into the car, the police opened the doors, pulled the passengers out and handcuffed them. The driver of the car was inside the store.
Police say that they targeted the car and its passengers because the vehicle was parked within 15 feet of a crosswalk, which is a parking violation under Milwaukee traffic laws unless the car is “actually engaged in loading or unloading or in receiving or discharging passengers.”
One of the passengers, Randy Johnson, had a firearm and was subsequently convicted of being a felon in possession of a weapon. He was sentenced to 46 months in prison.
Johnson challenged his conviction on Fourth Amendment grounds, claiming the officers’ search was illegal and the judge should have suppressed the gun.
But a federal judge rejected his claim, and the en banc Seventh Circuit affirmed Friday.
“The Fourth Amendment requires searches and seizures to be reasonable; it does not demand that police and other public officials resolve all possible exceptions before approaching a stopped car and asking the first question,” Judge Frank Easterbrook said, writing for the full court’s majority.
The U.S. Supreme Court’s 1996 decision in Whren v. U.S. held that a stop and arrest is supported by probable cause if a driver is engaged in speeding or other motor-vehicle violation, even if the police had another motive, such as a desire to search the car for drugs.
In Friday’s ruling, the court concluded that “Whren applies to both parking and moving offenses.”
Easterbrook said it made no difference that the officers turned on their spotlights and pulled up alongside the parked car in a threatening manner, because Johnson conceded that the car was illegally parked.
The judge also felt compelled to dismiss the possibility that the stop was racially motivated, given that the dissent identified this case as a crime of “driving while black.”
“Johnson has never contended that the police considered the race of the car’s occupants when deciding to approach it, or when deciding to use two cruisers rather than one. Indeed, Johnson has not contended that the police even observed the race of the car’s occupants until after they approached it,” Easterbrook said.
Judge David Hamilton dissented in a scathing opinion twice as long as that of the majority, joined by Judges Ilana Rovner and Ann Claire Williams.
“No other appellate court has tolerated such police tactics to address a suspected parking violation,” Hamilton said.
He described the officers’ seizure of the car’s passengers as “terrifying” and “unjustified” – and clearly influenced by the race of the passengers and neighborhood.
“What made the officers decide so fast to swoop in to seize this car? On this record, the only explanation is the neighborhood, and the correlation with race is obvious. It is true that Johnson has not made an issue of race, but we should not close our eyes to the fact that this seizure and these tactics would never be tolerated in other communities and neighborhoods,” Hamilton said.
He concluded, “Who among us can say we have never overstayed a parking meter or parked a little too close to a crosswalk? We enforce the Fourth Amendment not for the sake of criminals but for the sake of everyone else who might be swept up by such intrusive and unjustified police tactics.”
Hamilton also dissented from the Seventh Circuit’s previous decision issued by a three-judge panel in May, saying, “The phenomenon of police seizures for ‘driving while black’ has long been recognized…In this case, we seem to be taking the further step of enabling police seizures for ‘parking while black.’”