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SCOW approves wide police discretion in traffic stops, lets racial bias go unchecked

State v. Courtney C. Brown, 2020 WI 63, 7/3/20, affirming a published court of appeals opinion, 2017AP774-CR, case activity (including briefs)

“Supreme Court affirms wide discretion in traffic stops; dissent says implicit bias will go unchecked” That’s the JSOnline’s pithy description of SCOW’s 4-1 decision in this case. Also noteworthy, Justice R.G. Bradley filed a strident, bias-denying concurring opinion suggesting that court of appeals Judge Reilly should be disciplined for writing a strident, bias-acknowledging concurrence that dared to criticize two recent 4th Amendment decisions from SCOW.

An officer stopped Brown because he failed to come to a complete stop at a stop sign at 2:44 a.m. in Fond du Lac. The officer noticed that Brown wasn’t wearing a seat belt, asked for his license, and wrote a warning.  Instead of handing the license and ticket to Brown so he could leave, the officer made Brown exit his car, put his arms behind his back, walked Brown to the squad car, and asked if he had anything he “needed to know about” or “be concerned about.” Brown said “no.”

The officer  later testified that no “specific factors” made him think that Brown had weapons. It was more that Brown was driving a rental car, came from Milwaukee (a “source city” for drugs), and did not adequately explain his presence on the street in question at 2:44 a.m.  The officer called for 2 more officers to help with this “incomplete stop” infraction, made a city and county wide request for a canine sniff, searched Brown, and found drugs.

The majority opinion (by R.G. Bradley) held that every action the officer took was perfectly consistent with Rodriguez v. U.S., 575 U.S. 348 (2015), State v. Floyd, 2017 WI 78, 377 Wis. 2d 394, 898 N.W.2d 560, and State v. Wright, 2019 WI 45, 386 Wis. 2d 495, 926 N.W.2d 157.

The dissent (by Rebecca Dallet) says the majority misreads Floyd and, more importantly, SCOTUS 4th Amendment jurisprudence. Specifically, Rodriguez, 575 U.S. at 354 holds:

“[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may ‘last no longer than is necessary to effectuate th[at] purpose.'” (Quoted sources omitted).

According to the dissent, the officer’s “mission” was to address Brown’s failure to come to complete stop. His “mission-related tasks” were or “reasonably should have been” completed by handing Brown his license and his seat belt warning. Instead the officer extended the stop by making Brown exit his car, and so forth, based on a hunch he might have drugs. The extension of the stop was unreasonable under Rodriguez and Floyd. Dissent, ¶¶55-57.

In Floyd, an officer asked the driver to exit a car to explain the citations being given and prevent him from unlawfully driving away (he didn’t have a valid license). The officer asked if the driver had weapons, requested and received consent to search him. The Floyd majority held the frisk negligibly burdensome and related to the mission of the stop–officer safety. Dissent, ¶56.

Now the majority transforms Floyd into a per se rule that lets officers prolong stops to investigate hunches of criminal conduct in the name of safety “until the officer chooses to hand over a traffic ticket or warning.” Dissent, ¶57, ¶78. Because police, like all humans, are susceptible to implicit racial bias, the majority places no check on racial profiling in traffic stops–the very point that Judge Reilly made in his court of appeal concurrence.

R.G. Bradley (author of the majority opinion) also filed a concurrence (joined by Kelly) taking great umbrage at the notion that “law enforcement officers conduct their duties in a biased manner, much less that this court requires them to do so.” Concurrence, ¶37. Reilly, who acknowledged that Wright and Floyd are binding precedent, argued that they were wrongly decided and essentially authorized racial profiling. Citing Dred Scott he wrote: “We have made mistakes before.” He wants the decisions overturned. Reilly’s concurrence, ¶33.

R.G. Bradley suggested that Reilly violated the Code of Judicial Conduct by  “intentionally inciting racial tensions while demeaning the integrity of Wisconsin’s highest court.” She reminded him of his obligation to “respect and honor the judicial office” and to “enhance and maintain confidence in our legal system.” Concurrence, ¶38.

Speaking of maintaining public confidence in Wisconsin’s highest court, the very day SCOW released State v. Brown, it also released State v. Dobbs, where Justice Kelly filed a concurring opinion (joined by R.G. Bradley) demeaning the majority opinion (written by Justice Dallet). In just one of many examples, Kelly described the majority opinion as “dizzying and disorienting even for those trained in the law. For everyone else, it just makes the law a hopeless jumble.” Concurrence, ¶112.

Back to R.G. Bradley’s concurrence. The ACLU, represented by Godfrey & Kahn, filed an excellent amicus brief describing social science research on racial profiling in traffic stops. As noted above, Justice Dallet cited research on subconscious bias in policing. She explained: “Our decisions interpreting the constitution have real-world consequences.” Social science can show how faithfully the court’s decisions protect constitutional rights.  She cited several famous decisions (e.g. Brown v. Board of Education) where social science guided SCOTUS to better protect civil liberties. Dissent, ¶74, n.7.

R.G. Bradley would have none of it. She said she didn’t just “‘disregard the important role of social science research in guiding’ judicial decision-making . . . I emphatically reject it.” Concurrence, ¶45. She argued that reliance on social science has “oppressed people” and led to “odious outcomes” and “deplorable decisions” like Plessy v. Ferguson. She cited Antonin Scalia and Clarence Thomas for the idea that social science cannot inform the meaning of the constitution. Concurrence, ¶40.

Just a few years ago Chief Justice Roberts wrote the majority opinion in Shelby County v. Holder, 570 U.S. 529, (2012), which struck down the heart of the Voting Rights Act based on social science data collected by Congress. Roberts explained that in 1966 “the ‘blight of racial discrimination in voting’ had ‘infected the electoral process in parts of our country for nearly a century.'” But 50 years later “things have changed.” Voter turnout and registration rates among African-Americans and Whites “now approach parity.” Opinion, ¶13-14.   To drive the point home, the majority opinion included a chart comparing voter registrations among Blacks and Whites in 1965 and 2004. Opinion, ¶15. Justices Scalia and Thomas joined that opinion. Justice Thomas filed a separate opinion citing data showing improved voter turnout and unprecedented levels of minority candidates for office to justify striking down another part of the Voting Rights Act too.

For more on the implications of Floyd, Wright and SCOW’s recent track record in 4th Amendment cases, see our posts here and here.

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{ 6 comments… add one }
  • Robert R. Henak July 6, 2020, 11:38 am

    So, at a time when the entire nation is coming to terms with the systemic racism in the criminal justice system (a form of racism that is especially pronounced in Wisconsin), SCOW pretends it doesn’t exist, and the concurrence viciously attacks those who insist on reality-based decision-making as somehow acting unethically. Talk about undermining confidence in the integrity of the Courts.

  • Gary Grass July 6, 2020, 12:36 pm

    Just to note, the decision was 4-1, not 5-1. Now to go back and read past the second paragraph.

  • admin July 6, 2020, 1:25 pm

    Right you are, Mr. Grass. Thanks and post corrected.

  • Jim Walrath July 6, 2020, 3:23 pm

    Interesting. She nonetheless had no problem as a circuit judge ordering that a 17-year old juvenile should be subject to lifetime sex offender registration (that’s right, lifetime registration for a seventeen-year-old) by both relying on and misinterpreting the Juvenile Sex Offender Assessment (JSOAP-II), a social science tool, as reported in City of Milwaukee v. D.S., 367 Wis. 2d 750, 877 N.W.2d 651.

    Justice Rebecca Bradley seems to favor relying on social science to judge the behavior of private citizens, but not the police.

  • John Wasielewski July 7, 2020, 9:39 am

    The concurring judge in the Court of Appeals is Judge Reilly. (You spell it Riley in 4 places.)

    No need to post this comment publicly.

  • admin July 7, 2020, 6:33 pm

    Fixed. Thank you. Chalking that one up to auto-correct.

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