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Full federal appeals court upholds Richmond judge in contentious search and seizure case

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Richmond Commonwealth Attorney Colette McEachin talks about what she saw while watching the video of George Floyd, who died while in police custody in Minneapolis. She was participating in a community forum seeking solutions and answers for needed change in Richmond at Speaking Spirit Ministries Tuesday, June 2, 2020. Video by Alexa Welch Edlund/Times-Dispatch

A divided federal appeals court Wednesday, in opinions invoking George Floyd, Eric Gardner, the Rev. Martin Luther King Jr. and others, held that Richmond police violated the rights of a felon caught with a handgun when he was stopped and searched in 2017.

Judge Henry F. Floyd wrote for the majority, holding that stopping and searching Billy Curry Jr. in Creighton Court was not justified by the “exigent circumstances” exception to 4th Amendment protections against unreasonable search and seizure in a case that could be headed to the U.S. Supreme Court.

The nine-judge majority had four concurring opinions, while six judges dissented in two opinions.

Carl Tobias, a professor at the University of Richmond School of Law and an expert on the Richmond-based appeals court, said Wednesday that “the judges are strongly disagreeing with one another.”

“They’re talking past one another, I think. ... It’s really a rich opinion just because it implicates so much else that’s going on right now,” Tobias said.

Questions raised by the case include the kinds of policing done in parts of Richmond and whether that is a good or bad thing for minorities, he said.

“My guess is the Supreme Court’s interest might be piqued in this case even though it’s a pretty straightforward case: Did they properly stop and frisk, did they properly seize/find the weapon, and should he be convicted,” Tobias said.

On the night of Sept. 8, 2017, police officers near Creighton Court heard gunfire and responded immediately. According to court summaries of the case, officers found Curry and a half-dozen others walking away in the area of the gunfire.

No one was shot in the incident, but there had been six shootings and two homicides in the public housing community in the prior three months.

Police told the men to stop, shined a flashlight on them, and told them to raise their hands and lift their shirts to see whether anyone were armed. Others in the area were not told to stop. According to court summaries, Curry was the only one who refused to fully lift his shirt, and a search and struggle turned up a .38-caliber revolver.

Curry, a felon, was arrested and charged with possessing a firearm and was later indicted by a federal grand jury. His lawyers with the public defender’s office moved to have the evidence tossed out, alleging that it was obtained in violation of Curry’s Fourth Amendment rights.

U.S. District Judge M. Hannah Lauck sided with the defense, holding that police could not cite particular reasons for stopping Curry and others in the field who were simply walking away.

The judge rejected the prosecutors’ argument that the warrantless search was allowed under the “exigent circumstances” exception when there is imminent danger to public safety.

The government appealed and won a 2-1 decision from a panel of the court. Curry appealed that decision, and the full court agreed in January to hear arguments.

According to Floyd’s opinion, exigent circumstances typically involve an emergency justifying a warrantless search of a home and not an investigative stop of a person, wrote Floyd. The majority agreed with a ruling from Lauck that the suspicionless stop in question was unreasonable.

In his dissenting opinion, Judge Julius N. Richardson — who as an assistant U.S. attorney prosecuted Dylann Roof, who killed nine African Americans in a church in Charleston, S.C., in 2015 — wrote that the circumstances that night in Richmond required the officers to act, “now or never,” to protect the public.

“And they did so with appropriate restraint — ordering Curry and the others to stop and show their hands,” he wrote. “Yet the majority holds that the officers were constitutionally prohibited from instructing the men at the suspected scene of residential gunfire to show that they were not holding a weapon.”

Richardson added: “I fear the majority’s sweeping decision — outlawing a modest response to a serious threat — guts the exigent-circumstances doctrine and handcuffs law enforcement’s response to possible active-shooter situations.”

Judge J. Harvie Wilkinson III also dissented. “We face again in this day of sad and unhappy truths the divide between what are already two Americas. In one America, where citizens possess the means to hire private security or move to safer neighborhoods, the impact of judicial barriers to effective law enforcement may be minimal.”

He added: “The deaths of George Floyd, Eric Garner, and far too many others have been heartbreaking. They are crimes not only against law but against humanity. There exist grave concerns about unfair police treatment of minorities, and I respect the majority for being sensitive to that.”

But, Wilkinson continued, “we are in danger of making law enforcement in our dispossessed communities a thankless task. Being an officer in a high-crime area often carries its own distinctive risks. In such areas, the dangers to police officers exist alongside the dangers to residents.”

Chief Judge Roger L. Gregory responded to Wilkinson. “When I read the first line of Judge Wilkinson’s dissent I was heartened by the thought: well, at least he acknowledges that there are ‘two Americas.’ But this glint of enlightenment was to serve as a ‘soap box’ for his charge against the majority’s decision,” he wrote.

“His recognition of a divided America is merely a preamble to the fallacy-laden exegesis of ‘predictive policing’ that follows,” Gregory added. “Through his opinion, my colleague contributes to the volumes of work gifted by others who felt obliged to bear their burden to save minority or disadvantaged communities from themselves.”

Gregory wrote that in so doing, Wilkinson “presents a sordid view of under-policing, suggesting that our decision today will lead to ‘an America where gated communities will be safe enough and dispossessed communities will be left to fend increasingly for themselves.’

“But we know that many of our fellow citizens already feel insecure regardless of their location. In a society where some are considered dangerous even when they are in their living rooms eating ice cream, asleep in their beds, playing in the park, standing in the pulpit of their church, birdwatching, exercising in public, or walking home from a trip to the store to purchase a bag of Skittles, it is still within their own communities — even those deemed ‘dispossessed’ or ‘disadvantaged’ — that they feel the most secure.

The chief judge added: “As a country, we are in a moment of reckoning. And the unpredictability of the future encourages us to want to hang on to those entities that make us feel secure. Still, ‘[t]he facts of this case give us cause to pause and ponder the slow systematic erosion of Fourth Amendment protections for a certain demographic.’”

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