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Parking violation justifying investigatory detention? Or “parking while black”?

United States v. Randy Johnson, 7th Circuit Court of Appeals No. 15-1366, 5/17/16

Taking Whren v. United States, 517 U.S. 806 (1996), to its logical extreme, the Seventh Circuit holds that detaining the passengers in a car parked too close to a crosswalk was reasonable under the Fourth Amendment.

Police in Milwaukee saw a car stopped within 15 feet of a crosswalk, which is unlawful unless the car is “actually engaged in loading or unloading or in receiving or discharging passengers,” § 346.53(intro.) and (5). One police car drew up parallel to the stopped car, and another drew up behind. Shining lights through the car’s windows, police saw Johnson, a passenger in the back seat, try to hide a firearm. He was prosecuted for being a felon in possession of a handgun. (Slip op. at 1-2).

He challenged the detention of the passengers of the car, arguing that because of the exception regarding cargo and passengers the police would not have probable cause to conclude the statute was being violated. The majority rejects this reasoning:

Even a brief glimpse of the car revealed probable cause, because officers need not negate all possible defenses. They can hand out tickets (or make arrests) and leave to the judicial process the question whether a defense applies. See, e.g., Baker v. McCollan, 443 U.S. 137, 145–46 (1979); Hurem v. Tavares, 793 F.3d 742 (7th Cir. 2015); Askew v. Chicago, 440 F.3d 894 (7th Cir. 2006). What’s more, the district judge thought, a brief look was long enough to think that the car was just sitting there. The car’s doors were closed. No one was getting in or out, walking away, or approaching. When the police got closer they saw that no one was in the driver’s seat, a further problem because the statutory exception has a proviso: a vehicle stopped for loading or unloading must be “attended by a licensed operator so that it may promptly be moved in case of an emergency or to avoid obstruction of traffic.” Wis. Stat. § 346.53[(intro.) and] (5).

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Police approach stopped cars countless times every day; the number of parking tickets issued (usually to unoccupied cars) is high. Sometimes officers write tickets; sometimes they don’t; if the car is occupied, the difference may depend on what the driver says. The Fourth Amendment requires searches and seizures to be reasonable; it does not demand that police resolve all possible defenses and exceptions before asking the first question.

(Slip op. at 2-3). Even without probable cause there was enough evidence to justify a brief detention to investigate the situation, as established by United States v. Shields, 789 F.3d 733, 744-46 (7th Cir. 2015), “another case arising from a car stopped too close to a crosswalk.” (Slip op. at 3).

There’s a dissent—and a strong one at that:

…. What happened here was extraordinary. No other court has tolerated such tactics in such a case. Five officers in two police squad cars seized the passengers of a parked car. They swooped in on the car, parking close beside and behind it, with bright lights shining into it from both directions, opened the doors, pulled all passengers out, and handcuffed them. The passengers were seized before the officers had any sign that one passenger might have a firearm.

The sole basis offered to justify this highly intrusive, even terrifying, “investigatory stop” was a suspected parking violation! The phenomenon of police seizures for “driving while black” has long been recognized. See, e.g., David A. Harris, Driving While Black and all Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544 (1997). In this case, we seem to be taking the further step of enabling police seizures for “parking while black.”

(Slip op. at 7). The dissent says the cases don’t hold that a parking violation by itself justifies investigatory detention of passengers—“[a]n illegally parked car is a far cry from the would-be robbers casing their target in Terry v. Ohio“—and that the cases like Shields involve a driver who flees from the police. (Slip op. at 10-12). Moreover, the dissent correctly observes that the facts don’t support suspicion of a violation of the statute:

Without more, a car stopped in front of a store with its motor running is simply not suspicious. Given the sensible statutory proviso for cars that are loading and unloading, the police here could not decide that this seizure was reasonably justified in the few seconds they took from spotting the car until they swooped in to seize it and its passengers.

Yet the majority treats what the police saw as suspicious enough to justify the seizure. That rationale overlooks the fact that the statute does not require the driver to “occupy” the car while loading or unloading. It requires only that the car be “attended” by a driver so it can be moved if needed. A lone driver making deliveries and pick-ups will not always be in the vehicle but may “attend” it for these purposes.

(Slip op. at 13-14). To the dissent, the record shows that the real reason to detain the passengers was the “high-crime” neighborhood, “and the correlation with race is obvious. If these outrageous police tactics could ever be justified on nothing more than a real parking violation, and they should not, they were not justified in this case.” (Slip op. at 14).

UPDATE (8/8/16): The court has granted Johnson a rehearing en banc, so this panel decision won’t be the last word. (Tip of the hat to Shelley Fite, of the Federal Defenders Office, for the info).

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