Each month, Rewire.News is examining the Trump judges behind some of the worst decisions in recent weeks. Read our previous columns here.
Judge Allison Jones Rushing, who sits on the U.S. Court of Appeals for the Fourth Circuit, is one of President Trump’s youngest judge picks, having ascended to the federal appellate bench at only 37 years old.
To be fair, unlike some of Trump’s other picks, Rushing did have some experience in the law before getting the nod for the bench. She spent several years at a fancy Washington, D.C., law firm, but her real appeal was likely that she clerked for then-Judge Neil Gorsuch when he was on the U.S. Court of Appeals for the Tenth Circuit and for Justice Clarence Thomas on the U.S. Supreme Court. She also spent time at the Alliance Defending Freedom (ADF), a group well known for its anti-LGBTQ stance.
But in her recent ruling in U.S. v. Mitchell, Rushing’s animus was aimed at Black people.
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The case started with a bar fight in Huntington, West Virginia. When police responded, a bystander told them a Black man wearing red pants and a black shirt had a gun and had walked away from the scene. Based on that minimal information, one of the officers stopped and frisked James Mitchell, a Black man, who was walking a block away. The officer found a firearm and arrested Mitchell.
Mitchell appealed, arguing that the police violated his Fourth Amendment right not to be subjected to unreasonable search and seizure.
The facts of the case weren’t great for the police. Officer Benjamin Howard, who took the report from the bystander, was not the same officer who stopped Mitchell. At Mitchell’s trial more than four years after the incident, Howard testified he had “no doubt” he was on the scene that night as he routinely responded to calls from that bar. However, he also “could not specifically remember the night in question” and could no longer remember who gave him the description of a Black man in red pants and a black shirt. There was no warrant. There was no evidence the tip was credible, particularly since the officer couldn’t remember who gave him the tip. There was no “particularized suspicion,” which is a requirement before the police stop and frisk someone: They can’t just stop a person because they feel like it or they have a vague sense the person did something wrong.
When police are allowed to stop whomever they want, you get what happened in New York City from 2002 to 2011, where police performed 5 million stop-and-frisks, overwhelmingly of Black and Latinx people. Nearly 9 out of 10 of those stopped turned out to be totally innocent.
Additionally, the Supreme Court decided 20 years ago that you can’t just stop someone because they happen to be “in an area of expected criminal activity”—which is really all the police had to go on in this instance.
Rushing threw all that law out the window.
She, along with Judge Marvin Quattlebaum, another Trump appointee, held that the officer’s actions were fine, in part because they were “commonsense judgments and inferences about human behavior.” That’s a backhanded way of saying it’s just fine if police officers are suspicious of Black men who happen to be nearby when a fight breaks out.
And the fact Mitchell was carrying a gun? West Virginia is an open carry state that doesn’t require a license to carry a firearm as long as you’re over 18. It was only after the police took Mitchell into custody for the crime of walking near a fight and being Black that they learned he wasn’t eligible to carry a firearm because he had previous felony convictions.
Plus, the tipster hadn’t said that the Black man in red pants and a black shirt was involved in the assault that occurred at the bar brawl. Police couldn’t recall who tipped them off about the Black man walking away from the fight. The tipoff itself—that Mitchell had a gun—was about a thing that isn’t illegal in West Virginia. But for Rushing, it was “entirely reasonable” that Mitchell was stopped based on a 911 call about a fight and a tip that a Black man was walking away and had a gun.
Judge James Wynn, an Obama appointee, dissented, in an opinion that can only be called blistering. His introduction to the dissent says it all: “So, at the end of the day, this is what the majority opinion holds: police officers may lawfully stop anyone in the vicinity of reported unlawful activity whom a bystander says has a gun.”
In the end, Mitchell was, as Wynn put it, “simply a man with a gun near a disturbance,” and that’s not nearly enough to take away someone’s Fourth Amendment rights.
Rushing’s decision gives police a racist road map: Rely on a sketchy tip, violate someone’s rights and search them, and then hope that after they’re arrested, you can find a justification for your actions. Protests over the killing of George Floyd have been met with wave after wave of police brutality, and the last thing we need now is an easy way for police to ignore the Fourth Amendment.