Janice Rogers Brown Dissents , Would Invalidate Terry Stop

Conservative appeals court judge Janice Rogers Brown has dissented in a search and seizure case in the D.C. Court of Appeals today. She would have invalidated a "Terry" traffic stop. From her dissent:

It is true, of course, that as a standard “reasonable suspicion” is necessarily imprecise. But no matter how low the bar is set, generic racial descriptions devoid of distinctive individualized details cannot, without more, provide police adequate justification for a Terry stop. It is not enough to share the same racial characteristics as a suspect and be in the vicinity.

In short, Rogers Brown argues that "reasonable suspicion" has become, in effect, a license for stopping anyone who is young, black and male.

The opinion is here (pdf), her dissent begins on page 11.

[hat tip reader Emil.]

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    Wow (none / 0) (#1)
    by Big Tent Democrat on Fri Jun 22, 2007 at 01:08:46 PM EST
    That is news. She still is unacceptable.

    B TW (none / 0) (#2)
    by Big Tent Democrat on Fri Jun 22, 2007 at 01:13:33 PM EST
    Just reading that opinion and thepermutations of what is a sto and what is reasonable suspicion, all cases that appeared interested in chipping away at the 4th Amendment, put to the lie the idea of originalists.

    Everone is a legal realist.

    Volokh has more... (none / 0) (#3)
    by lawstudent on Fri Jun 22, 2007 at 01:21:19 PM EST
    And the concurring judge was Democratic Supreme Court short-lister, David Tatel, concurring to state that he had no choice but to rule in favor of the government.  Rather interesting opinion (or rather interesting who took what sides).


    how about:: (none / 0) (#4)
    by cpinva on Fri Jun 22, 2007 at 04:22:45 PM EST
    Everone is a legal realist.

    since none of them were around when the constitution was authored, they really have no clue what the "original intent" was, other than what those authors may have opined elsewhere, and the plain language of the statute.

    where do i get one of those wonderful "constitutional" crystal balls?

    OK, wait, I'm *really* lost here. (none / 0) (#5)
    by mattd on Sat Jun 23, 2007 at 12:31:29 PM EST

    Here are the facts from the dissent:

    Police were pursuing a motor vehicle.  The driver pulled over and immediately fled on foot in the dark.  Police caught only a fleeting glimpse of the suspect: a black man, average height and build, wearing blue jeans and a dark jacket or coat.  Not much to go on  in a largely black neighborhood, but police broadcast a "lookout" giving the description.  They reported the man's height as 5'8" or 5'10", and his weight as 180 to 190 pounds.  About five blocks away, Officer Israel James and three other officers were patrolling in an unmarked Crown Victoria, a car well-known in the area as a police car.  When they heard the report of a black man fleeing, they drove closer to the site.

    Two blocks from where the suspect had fled, the officers spotted four black men—ranging in height from 5'6" to 6'4"—conversing peaceably in front of a gas station, at least one of them wearing a black coat.(1)  These were neighborhood residents, who quickly recognized the police car, and one of the men, Vaughan Walker, wanted nothing to do with the police, though he was not involved in any criminal activity.  Even before the police stopped, Walker began walking away—but he didn't get far.  The police  pulled their car part way into the gas station, blocking the entrance, and all four officers "automatically jumped out," Tr. of June 21, 2004 Hr'g at 58, wearing jackets bearing the "MPD" logo, holstered weapons, and handcuffs.  One of the officers told Mr. Walker to stop; the statement was directed at Mr. Walker, but the message to the others, including appellant, was clear enough.  No one attempted to flee.  As Officer Figgeroa approached appellant, appellant said, "I have a gun," or words to that effect.  Officer Figgeroa immediately yelled out "gun," alerting the other officers, who restrained appellant without difficulty and then lifted his shirt, revealing a handgun tucked into his pants.  However, the officer who had earlier broadcast the "lookout" could not identify appellant as the fleeing suspect.

    [(1) The testimony regarding the clothes the men were wearing is quite unhelpful.  Officer James testified that their clothes "[f]or the most part" matched the description in the broadcast, Tr. of June 21, 2004 Hr'g at 17, adding that appellant (who is over six feet tall) was wearing a "[b]lack coat and blue jeans," id. at 49.  At one point, the trial judge describes the men as wearing "jeans and a dark shirt," id. at 83; at another point, "blue jeans and a dark jacket," id. at 86.  In neither case is the court's statement supported by specific testimony.]

    Appellant was arrested, and charged with unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

    So the police broadcast an extremely generic description of a "young black guy," the police stop a group of four young black men, one of them walks away, is told to stop despite having nothing to do with the suspect they sought other than "sharing the same racial characteristics as the suspect and being in the vicinity," and upon such a stop, tells the officers (most likely for everyone's safety" that he has a gun.  They arrest him and charge him with, well, having a gun, even though they had no reason to talk to him or stop him from walking away other than "sharing the same racial characteristics as a suspect."

    Judge Janice Rogers Brown says this is not the kind of 4th Amendment jurisprudence we want, and TalkLeft agrees?  Regardless of her documented odious views on a variety of subjects, it seems that she's on the side of civil rights here:  simply having the same race as a criminal suspect and being in the same area is not grounds enough to be stopped and questioned.

    It seems TalkLeft's summary is exactly the opposite of what the dissent actually says: "reasonable suspicion" is not a license to stop anyone who's young, black, and male.  The majority opinion says it is via stare decisis, but Judge Rogers Brown says no.

    Wouldn't TalkLeft normally agree that the police had no business stopping this man?  If so, why is Rogers Brown's dissent such a bad thing?  Or if not, why is this a good stop?  What am I missing here?

    I'm serious (none / 0) (#12)
    by mattd on Mon Jun 25, 2007 at 01:18:44 PM EST
    I'm not trolling.  I'm a 4th amendment fan, and it looks like the dissent opposes an unreasonable search where the majority opinion upholds an unreasonable search, yet TalkLeft sides with the majority.  I really don't get it.  What am I missing?

    Reread the Post (none / 0) (#13)
    by squeaky on Mon Jun 25, 2007 at 02:11:22 PM EST
    It agrees with your position.

    Well, maybe it does. (none / 0) (#14)
    by mattd on Tue Jun 26, 2007 at 12:20:54 AM EST
    Maybe I just filtered it through the first few comments and thought TL was disapproving of it, but you're right - it doesn't say that the dissent is good or bad, just that it's there.

    I'm less confused now.


    In a somewhat similar situation years ago, (none / 0) (#6)
    by oculus on Sat Jun 23, 2007 at 01:51:35 PM EST
    the trial judge granted defendants' motion to suppress, but the appellate court reversed.  The trial judge, who was very conservative, wrote a letter to the appellate court thanking it for reversing.  Situation:  dispatch stated two Mexicans males, 5' 8" tall, about 160 lbs. robbed a convenience store at night.  The suspects were apprehended running from the direction of the convenience store.  They fit the description, which could apply to almost any Mexican male in that general area.  Curbside ID.  

    Janice Rogers Brown is a clear and present danger (none / 0) (#7)
    by Aaron on Sat Jun 23, 2007 at 04:24:57 PM EST
    For anyone who wants to understand exactly who Janice Rogers Brown is, and where she's coming from, just read this little speech "A Whiter Shade of Pale": Sense and Nonsense - The Pursuit of Perfection in Law and Politics, that she gave before The Federalist Society, at the University of Chicago Law school back in 2000.

    Here we have a black female speaking to room of white males, or better to say pandering, politically pandering to these folks in the hopes of getting them to support her.  She's had her eye on the Supreme Court for some time now, and many in the conservative world, white conservatives, black conservatives, find her to be the ideal candidate for a future Supreme Court appointment.

    I find her ideology despicable, and believe she is the worst kind of bottom dwelling legal and political hack, hiding in judge's robes.  This is the kind of woman who would sell herself and all of us into bondage and slavery for nothing more than her own personal ambition. In my view she is far worse a threat than Clarence Thomas, who is so damaged and affected that his shortcomings are obvious to everyone.  This woman is a sly fox who can actually think, and would use her abilities to dismantle the rights of every American in order to remake this country in the conservative revolution's warped corrupted image.  What ever we do we must prevent this woman and those like her from ever reaching the Supreme Court.

    Aaron (none / 0) (#8)
    by jimakaPPJ on Sun Jun 24, 2007 at 09:34:25 AM EST
    In other words she is a Repub!!!

    Can't have no blacks being Repubs!!!!


    da (none / 0) (#10)
    by jimakaPPJ on Sun Jun 24, 2007 at 06:19:19 PM EST
    yadda yadda