Jim Dey | Judge's dissent on case he calls 'parking while black' could get high court's attention

Jim Dey | Judge's dissent on case he calls 'parking while black' could get high court's attention

Asking the U.S. Supreme Court to hear a case usually is a fool's errand — the high court turns down dozens of requests for each one it accepts.

But just maybe a Chicago federal appeals court decision will have enough sex appeal — interesting facts and an impassioned dissent — to get the justices' attention.

At any rate, assistant federal defender Anderson Gansner said his defense brief is due Monday, creating the opportunity that an outlaw named Randy Johnson — a ne'er-do-well akin to Ernesto Miranda and Clarence Gideon — has a chance to make legal history.

"Defendant Johnson is not a sympathetic champion of the Fourth Amendment. ... But the practical dangers of the majority's extension of (court precedents) Terry and Whren to suspect parking violations will sweep broadly.

"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."

So wrote dissenting 7th Circuit Judge David Hamilton in U.S. v. Johnson, which he contends is about "parking while black."

Johnson, who was sentenced to 46 months in prison, was convicted of illegal gun possession after a 2014 arrest in Milwaukee.

His conviction came after he failed to persuade the trial judge that police conducted an illegal search that violated his Fourth Amendment rights.

In May 2016, 7th Circuit Court of Appeals in Chicago affirmed Johnson's conviction in a 2-1 decision, with Hamilton dissenting.

That decision was vacated when the entire 7th Circuit decided to conduct a full panel (en banc) review.

Last October, the en banc panel ruled 5-3 against Johnson, with Hamilton again vigorously dissenting.

Joining Hamilton were Judges Ilana Rovner and the recently retired Ann Williams.

Writing for the majority was Judge Frank Easterbrook, who was joined by Judges Diane Sykes, Joel Flaum, Michael Kanne and Diane Wood.

Emeritus law Professor Wayne LaFave, an expert on search-and-seizure law, said the majority decision is "supported by the court's precedents, especially the Whren case (that) says that when there are grounds for an arrest or stop, then the fact there may have been an ulterior motive doesn't matter."

"The court has previously been asked to 'do something' about Whren and has so far declined to do so, which I suspect makes it unlikely the (Supreme Court) will take on the Johnson case, notwithstanding the three dissenters in the 7th Circuit decision," he said.

Here are the facts, which LaFave described as "troubling."

Johnson was among passengers in a car parked outside a liquor store located in a bad neighborhood. The driver had left the vehicle running while he went inside.

Two cars containing police officers, who acknowledged they were looking for "smaller infractions" that might lead to "bigger and better things," rousted the passengers from the car and spotted the gun.

Officers justified their conduct on the grounds that the car was illegally parked "within 15 feet of a crosswalk."

Illegal is illegal, said the court majority. That gave police the authority to act.

"Parking-enforcement patrols approach stopped cars countless times every day" with a variety of results, the majority said.

But this was guns drawn, get out of the car and hands up.

The court majority said police can pull over moving cars, so why not parked cars? In his majority opinion, Easterbrook said what matters is that "probable cause justifies stops and arrests, even for fine-only offenses" and "analysis of search-and-seizure issues disregards the officers' thoughts."

Regarding the latter, the court is referring to "pretext stops," like pulling over a car for a burned-out taillight with the intention of looking for illegal drugs.

Vigorously disagreeing, Hamilton said the police behavior "runs contrary to the standard of reasonableness," that rushing a parked car and handcuffing its passengers "in a sudden, terrifying and unjustified way" is behavior disproportionate to a parking offense.

"Extending (previous precedents) to allow police to use a mere parking violation as a pretext for seizing a car's passengers and then using the occasion to remove them and handcuff them, loses sight of reasonableness and proportion," he wrote.

Hamilton noted the majority opinion "invites intolerable intrusions on people just going about their business" and contended "the correlation with race is obvious."

"If we tolerate these heavy-handed tactics here, we enable tactics that breed anger and resentment, and perhaps worse, toward the police," he said.

Who's right? Who knows? But Hamilton's dissent strikes a chord the high court may find hard to resist.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or by phone at 217-351-5369.

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Local Yocal wrote on March 23, 2018 at 7:03 am
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Getting lethal weapons pointed at you, handcuffed and searched over a parking violation is extreme behavior for police to do. Hopefully the high court will take this on. 

NathanBrazil wrote on March 24, 2018 at 3:03 pm

Having an illegal gun in your possession is an extreme thing for a passenger in a car to do....

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