The Seventh Circuit Court of Appeals is poised to decide whether “parking while Black” will be the next tool that law enforcement uses to harass Black people.
The thought that Black people may now have to concern themselves with being harassed simply for sitting in a car—especially considering that far too many encounters with the police turn deadly for Black folks—is unthinkable. But that’s where we are.
In May, a three-judge panel of the Seventh Circuit upheld a police search and seizure of four Black people who were doing nothing but sitting in a car idling in front of a liquor store.
That’s it. The car, the police believed, was parked within 15 feet of a crosswalk in violation of Wisconsin law. This, in the court’s estimation, provided the probable cause necessary for five police officers to seize the car. As soon as they did so, one of them noticed the defendant, passenger Randy Johnson, trying to conceal a handgun on the floor of the car. The police yanked Johnson and the other occupants out of the car, and handcuffed them.
In a scathing dissent, Judge David Hamilton, after an explicit nod to the “driving while Black” phenomenon, excoriated his colleagues for enabling police seizures for “parking while Black.”
His dissent, according to Pace University law professor Bennett L. Gershman, may have prompted the full Seventh Circuit to rehear the case. And it may push the court to reverse the three-judge panel’s ruling.
The panel had its reasons for upholding the search and seizure: The law has long recognized that cops who have a reasonable suspicion to believe that a person is committing or about to commit a crime, and have a reasonable belief that the person “may be armed and presently dangerous,” may stop and frisk that person in what is known as a Terry stop (from the 1968 landmark U.S. Supreme Court case Terry v. Ohio).
In 1996, in Whren v. United States, the Supreme Court extended the Terry principle to traffic stops: The Court ruled that pretextual traffic stops—using any traffic offense committed by a driver as an excuse to pull over the driver and search the car and potentially its passengers—is a legitimate basis for a stop. This has permitted police around the country to use traffic offenses—of which there are seemingly an infinite number—as a pretext for an investigatory stop, which, in turn, has made the “driving while Black” phenomenon much worse.
You’re probably familiar with “driving while Black.” Due to racial profiling and racial biases, Black drivers are targeted by law enforcement far more than white and Latino drivers are.
According to a special report released by the U.S. Department of Justice in 2011, “relatively more black drivers (12.8%) than white (9.8%) and Hispanic (10.4%) drivers were pulled over in a traffic stop during their most recent contact with police.” Black drivers are 31 percent more likely to be pulled over by cops than white drivers and 23 percent more likely to be pulled over than Latino drivers, according to the Washington Post.
In 2015, in United States v. Shields, the Seventh Circuit extended the Terry principle beyond street stops and traffic stops to parking violations, relying on a 2006 decision out of the Ninth Circuit (United States v. Choudhry) and a 2003 decision out of the Sixth Circuit (United States v. Copeland)—both of which allow investigatory stops based on parking violations—to do so.
But these decisions were a mistake, according to Judge Hamilton, and it’s hard to argue with him, particularly given the facts of Johnson’s case.
The officers who arrested Johnson were part of the Milwaukee Police Department’s Neighborhood Task Force Street Crimes Unit assigned to patrol so-called hot spots. These weren’t cops assigned to walk a beat and write parking citations. They weren’t part of a parking enforcement unit. They were part of a street crimes unit.
One of the officers even testified that “part of our initiative is to look for smaller infractions and hope that possibly they may lead to bigger and better things.”
The car parked too close to a crosswalk—a crosswalk that was unmarked and covered by snow, by the way—was the “smaller infraction” the officers apparently hoped would lead to “bigger and better things.”
What happened next is outrageous and an example of the type of aggressive policing that goes on in communities of color nationwide.
According to Hamilton’s dissent, the two squad cars swooped in on the parked car, boxing it in, and lighting it up with spotlights, flashlights, and headlights. Five officers opened the doors, pulled all the passengers out, and handcuffed them.
Prior to being removed from the car, defendant Randy Johnson had placed a firearm on the floor of the car. He was arrested and prosecuted for possessing a weapon that, as someone who had been convicted of a felony, he was forbidden to have.
If it sounds like an excessive show of force in what could have been a simple conversation between cop and passenger, that’s because it is.
Was it really necessary for the police to use two cruisers and powerful lights just to determine whether someone deserves a ticket for a parking violation?
Any reasonable person would say “no.”
A reasonable response to seeing a car potentially stopped with its motor running in a crosswalk—again, the crosswalk was unmarked and covered in snow—would be to find out whether the passengers know they are stopped where they shouldn’t be and to ask why they are.
Why didn’t the police do that?
That’s a question the Seventh Circuit panel hand-waved away. Conceding that the police “did more than just stroll up: two squad cars, which bathed the parked car in bright light, implied that the occupants were not free to drive away,” the majority nevertheless justified its refusal to suppress the gun as evidence on the basis that the car was stopped in a public street and the driver was not in the vehicle, which meant that anyone could have walked up to have a look inside.
“A lone officer who ambled up amiably and shone a flashlight through the window would have seen everything needed to set up a lawful seizure of the gun,” Circuit Judge Frank Easterbrook mused for the majority.
But that’s not what happened. A lone officer didn’t amiably amble up to the car. Five officers pounced on the car with an aggressive display of force.
The parking ordinance at issue makes clear that the car could lawfully idle exactly where it was provided that the car was there “temporarily for the purpose of and while actually engaged in loading or unloading or in receiving or discharging passengers and while the vehicle is attended by a licensed operator.”
Johnson argued—and Judge Hamilton agreed—that the cops had no way of knowing whether or not the car was temporarily stopped for the purpose of loading or unloading before they seized it. “Without more, a car stopped in front of a store with its motor running is simply not suspicious,” Hamilton wrote in his dissent.
The majority avoided grappling with the provision for loading and unloading by citing unrelated cases where a police officer who obtains conflicting information makes an arrest that ultimately turns out to be faulty, such as an arrest based on mistaken identity, or a trespass arrest of an apartment tenant who could not produce a copy of the lease. According to the majority, cops shouldn’t have to determine in advance if a defense applies before making an arrest.
But this doesn’t apply to arrests based on parking violations. “No police officer could expect to keep his job if he treated a standing car as worthy of a Terry stop, leaving the driver to explain in court, that he had just stopped to pick up a package or a passenger,” Hamilton wrote.
“Imagine that the police tried that approach in Milwaukee’s affluent east side. Citizens would be up in arms, and rightly so,” he continued.
But it never would happen in an affluent community. A car full of white people isn’t suspicious. A car full of Black people, on the other hand? Better deploy five officers and two squad cars to terrify the passengers during an intrusive and unreasonable stop that could turn deadly.
The simple fact is that cops don’t harass white drivers the way they do Black drivers.
“But, Imani,” you may be thinking, “if Black people don’t want to get arrested for doing illegal shit after being stopped by the cops, Black people should stop doing illegal shit.”
Well, I have some news for you: White people are doing a lot of illegal shit; it’s just that cops aren’t stopping white people as much.
For example, a study of New York’s stop-and-frisk program revealed that white people are more likely than Black people to have guns or drugs when they are stopped.
In North Carolina, a statistical analysis of traffic stops showed that officers are more likely to stop Black drivers for no discernible reason but are more likely to find contraband when they stop white drivers. Same thing in Chicago. And Missouri. And Vermont. And Connecticut.
These sorts of investigatory stops funnel Black people into the prison system. I shudder to think of the explosion in prison populations if cops are permitted to roll up on a parked car and search it simply because it is stopped where it shouldn’t be.
Cops already have practically unlimited authority to harass Black drivers. Whren permits pretextual traffic stops and since there are so many nitpicky traffic laws, it’s not hard for a cop to find some reason to pull you over in the hopes of ferreting out criminal activity.
And once you’re stopped, police officers may order all occupants to get out of the car or remain in the car, in order to frisk them, to visually inspect the interior of the car, and to search the passenger compartment of the car.
All of these police tactics, while intrusive, can reasonably be tied to officer safety and public safety. In Maryland v. Wilson, the Supreme Court agreed that officer safety might impel a police officer to order all of the occupants of a car to get out given the dangers that police face during traffic stops. In United States v. Sanders, the Court said that occupants of a car could be ordered to remain in the car—in Sanders, the car had stopped in front of an apartment building in a high-crime area, and the passenger in question exited the car to enter the building. I can make logical sense of these rulings.
A driver who is violating traffic laws may be a danger to public safety. And once a cop stops that car, it makes sense to permit them to control the situation. Passengers in a car may have a weapon. A passenger leaving the car to go into a building might return with a weapon.
But what danger to public safety does a parked car pose? What is the justification for stopping an already stopped car?
The core principle of the Fourth Amendment is reasonableness. After all, it protects people from “unreasonable search and seizure.” Permitting searches and seizures to protect officer safety is reasonable. Permitting cops to use potentially illegally stopped cars as a pretext in order to fish for evidence is not reasonable, as Hamilton aptly pointed out.
“[Reasonableness] drove the balance between privacy and law enforcement in Terry itself. Extending Terry and Whren to allow police to use a 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 reasonability and proportionality,” Hamilton wrote.
Indeed it does. But given that the Supreme Court recently gutted the Fourth Amendment in Utah v. Strieff—which gave us Justice Sonia Sotomayor’s blistering dissent—there’s little reason to be optimistic should the Court be called upon to address parking while Black.
But before that happens, the entire Seventh Circuit has the opportunity to right this wrong. Let’s cross our fingers and hope the court gets it right and puts the kibosh on parking while Black before it becomes just another flashpoint for tense and potentially fatal interactions between police and Black people.