The Black Lives Matter Movement Meets the Fourth Amendment and Federal Civil Rights Law
Two recent cases, U.S. v. Curry, 965 F.3d 313, 2020 U.S. App. Lexis 22038 (4th Cir. 2020) (filed July 15, 2020), and Jamison v. McClendon, 2020 U.S. Dist Lexis 139327 (S.D. Miss. 2020) (filed August 4, 2020, and dismissed by a stipulation by the parties following a settlement that same day), show the challenges facing changing legal doctrine and Constitutional Law
The Black Lives Matter protests following the death of George Floyd in Minnesota on May 25, 2020, have been described as “the largest movement” in United States history, with the estimated turnout for protests in the 15 to 26 million people range, see The New York Times, Black Lives Matter May Be the Largest Movement in U.S. History, July 3, 2020. Not surprisingly, the consequences of these protests are reaching into court decisions grappling with the scope of protection provided by the Fourth Amendment and 42 USC Section 1983, one of the most important federal civil rights statutes. Two recent cases show that coming to terms with and applying the Due Process and Equal Protection principles animating the protests will be challenging, time-consuming, and uncertain in outcome. The two opinions arise in different level courts in different jurisdictions and address different legal principles, but both explicitly and implicitly are shaped by the street protests throughout the country, and the principles animating them.
Like their predecessors decades earlier grappling with the consequences of another phase of the struggle for equal rights for all races in this country, Curry shows the judges of the Fourth Circuit this summer struggling to implement Supreme Court and Fourth Circuit precedent in a divided country with an eye towards further action by the Supreme Court.
Curry was decided by the United States Court of Appeals for the Fourth Circuit, which handles appeals from the U.S. District Courts in Maryland, Virginia, West Virginia, and North and South Carolina. Cases are principally heard in the Richmond courthouse. There is a historic marker on the exterior wall of the Fourth Circuit courthouse stating that it was once part of the Treasury Building of the Confederate States of America. In Treasury Building were the offices of the CSA’s president, secretary of state, and secretary of the treasury. During the era of school desegregation, the Fourth Circuit heard Swann v Charlotte-Mecklenburg Board of Education, where the Fourth Circuit reversed the district court’s busing plan as too harsh, 431 F.2d 138, 147 (4th Cir. 1970). The Supreme Court unanimously reversed the Fourth Circuit, see 402 U.S. 1, 26 (1970), holding that the district court’s busing plan was reasonable, feasible, and workable. It also held that the existence of one-race schools was not an automatic violation of the constitution, rather the school system had to be able to show that one race schools were “not the result of present or past discriminatory action on their [the schools] part.”
In Curry, the district court suppressed from coming into evidence in a criminal trial a firearm seized by an officer following an encounter with a resident of a Richmond public housing complex following a report of shots fired. The district court found that the right to stop, question and frisk citizens allowed by Terry v. Ohio, 392 U.S. 1 (1968), and its progeny did not support the stop as officers lacked no reasonable, articulable suspicion of criminal activity particularized as to defendant Curry at the time officers told him to stop and raise his hands. The district court also held that exigent circumstances (the sound of gunshots) did not permit the stop either. A panel of the Fourth Circuit consisting of judges Floyd, Richardson, and Niemeyer reversed the district court in a 2 – 1 decision, 937 F.3d 363 (4th Cir. 2019). Judge Richardson wrote the majority decision, joined by Judge Niemeyer, finding that exigent circumstances were present and that a special circumstances doctrine applies, usually applied to vehicular checkpoints, random drug tests, and administrative searches. Judge Floyd dissented, finding neither justification persuasive.
After en banc rehearing by all active judges of the court, in a 9 – 6 vote the Fourth Circuit reached a different result than the earlier three-judge panel and affirmed the district court. The key finding was that defendant Curry was seized by officers after he was told to stop and raise his hands and that neither exigent circumstances nor special circumstances justified the seizure. Reversing roles, Judge Floyd, the dissenter on the original district three-Judge Fourth Circuit panel, wrote the court’s decision, and Judge Richardson, who had written the panel decision, wrote the principal dissent.
Although all judges on each side in Curry joined in one opinion for each side, there were numerous concurrences and dissents. The myriad opinions basically revolved around an essential feature of the BLM movement – whether police should have untrammeled discretion in certain situations to stop and detain citizens, and by extension (not addressed in Curry specifically), use whatever force a reasonable officer would deem appropriate under the circumstances. Curry basically found that shots fired in an urban neighborhood does not give the police carte blanche pursuant to the Fourth Amendment to detain anyone in the general area they deem necessary in their discretion for their investigation. Providing officers with that discretion would basically be lawless and gut protections integral to Fourth Amendment precedent wrote the court. In substance, the Court allowed officers to conduct such seizures if either everyone in an area were to be seized, say by cordoning off a neighborhood or area or if there was some evidence of the identity of the shooter, to selectively detain persons fitting that description.
The Curry dissenters contended that the officers on the scene acted reasonably in trying to prevent further violence following the shooting, and that selectively stopping residents and telling them to raise their hands in the air was a di minimis restraint on liberty and movement which the Fourth Amendment does and should permit. Although the dissenters did not mention school shootings, a phenomenon which at times prior to the Covid-19 school shutdowns had generated an enormous amount of media attention, public concern, and political strife over solutions, they did raise numerous scenarios drawn from other recent shootings where police arrive on the scene of a shooting and do not have the resources to detain and search everyone who might be a fleeting shooter in the area. “Under the majority’s rule, [arriving officers] would be constitutionally prohibited from stopping and demanding raised hands from fleeing individuals just because police have doubts about who to search . . . and have no ability to cordon off all modes of egress. . . What if gunshots erupt during a crowded marathon? Today’s opinion will prevent officers from simply instructing individuals to raise their hands. Unless, of course, they can pinpoint a discrete group or exert control over an entire area. Or take the apparent sounds of shots being fired at a music festival with thousands in attendance, abundant modes of egress, and only so many officers operating with only so much time…. Must the officers sit on their hands until enough backup arrives to cover all the exits and establish a perimeter?” Curry dissent (Richardson, J.).
Addressing the dissent’s concerns, following their reading of the Curry majority, officers can violate the constitution in an active shooter exigent circumstance situation to stop the shooting. However, in doing so and following the dissent’s approach, officers risk providing a shooter through counsel an opportunity to suppress illegally seized evidence, they risk being sued pursuant to 42 USC Section 1983 (the cause of action addressed in Jamison), and they risk departmental discipline or discharge. The Curry dissent supports legal doctrine which would grant officers the discretion necessary in their view to stop on-going shootings and seize the shooter with admissible evidence. It basically lays out a certiorari petition to the Supreme Court asking the Court to take the case and go on record granting officers that discretion. Mindful of the historic consequences of such discretion granted to the police, leading to the killings which are the focus of the BLM protests, the Curry majority refused to grant officers that discretion and the majority contends, in prose appropriate for a brief, why the Fourth Amendment should not be read by the Supreme Court to grant officers that discretion.
Analogous to Curry’s concerns with managing police decision making, Jamison similarly takes on qualified immunity, which minimizes officers’ liability for violating the Fourth Amendment. Jamison addresses officers’ potential personal liability pursuant to 42 USC Section 1983 for violating a citizen’s civil rights, including Fourth Amendment rights. Jamison dismisses a portion of a civil rights action arising from a car stop and search but laments the need to do so because of the qualified immunity doctrine. While the Exclusionary Rule seeks to deter police misconduct by barring the admission of illegally obtained evidence at trial, Section 1983 seeks to deter it by allowing lawsuits to proceed for violations of constitutional rights. Jamison begins by listing all the killings by officers called out by the BLM protests in the past three months, plus additional ones, and ties those deaths and many other constitutional violations to qualified immunity, which Jamison states bars federal civil rights claims from addressing
Qualified immunity shields police officers and similarly situated persons “from liability for civil damages insofar as their conduct does not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982). Jamison laments the ability of citizens to obtain redress for violation of their Fourth Amendment rights. It states “[t]ragically, thousands have died at the hands of law enforcement over the years, and the death toll continues to rise. Countless more have suffered from other forms of abuse and misconduct by police. Qualified immunity has served as a shield for these officers, protecting them from accountability. This Court is required to apply the law as stated by the Supreme Court. Under that law, the officer who transformed a short traffic stop into an almost two-hour life-altering ordeal is entitled to qualified immunity. The officer’s motion seeking as much is therefore granted.” Id.
Jamison directs particular ire at cases addressing when rights are “clearly established.” Officers’ conduct is measured by an objective reasonableness standard, Crawford-El v. Britton, 523 U.S. 574, 590-91 (1998). The test had been whether an officer’s action was unconstitutional “under settled law in the circumstances.” Hunter v. Bryant, 502 U.S. 224, 228 (1991). That right must be established “not as a broad general proposition,” Brosseau v. Haugen, 543 U.S. 194, 200-201 (2004) (officer shot fleeing suspect but immune because use of force did not clearly violate the Fourth Amendment), but in a particularized sense so that the contours of the right are clear to a reasonable officer, see Anderson v. Creighton, 483 U.S. 635, 640 (1987). However, Jamison calls out Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011), for further limiting officers’ liability by requiring that the constitutional right violated by the officer must be “beyond debate.” Jamison notes that “judges now spend an inordinate amount of time trying to discern whether the law was clearly established beyond debate at the time an officer broke it. But it is a fools’ errand to ask people who love to debate whether something is debatable.”
Thus, the BLM movement’s premises have entered federal courthouses and have likely influenced the reasoning and possibly the outcome of court decisions. Curry may be headed to the Supreme Court. Jamison however was settled on August 4, 2020, the day the district court’s qualified immunity opinion was filed. Reconciling the desire to limit officers’ discretion, which can be abused, with providing officers tools to respond to dynamic situations to save lives or enforce the law is not easy or straightforward given precedent, and the legal and political environment. Curry and Jamison suggest opportunities for counsel to pursue claims in future cases, possibly leading to better protection of civil rights, better policing, called smarter policing in Curry, and less crime.
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