Twice in the past year, judges on the Richmond-based 4th U.S. Circuit Court of Appeals have expressed unusually candid, strongly held views on crime, policing and racial justice as well as on each other’s opposing positions.
Chief Judge Roger L. Gregory, the first African American on the court, and Judge J. Harvie Wilkinson III, the court’s most senior judge and the chief judge from 1996 to 2003, squared off in two search and seizure cases — one from Richmond, the other from Baltimore — with a directness not often heard in what was once the most conservative appeals court in the country.
The two Fourth Amendment disputes also drew in other judges on the powerful but low-profile court, generating half a dozen dissenting and concurring opinions — unlike the typically dispassionate legal analyses written by the judges.
The jurists dissected the legal questions at hand, but also wrote on two of the hot-button issues of the day: policing abuses in disadvantaged, minority neighborhoods and how to best address the recent eruption of violence and murder in those same communities.
Carl Tobias, a professor at the University of Richmond School of Law and an expert on the court, said, “These are complicated questions — social and political and legal questions — and nobody’s come up with very good solutions,” he said. “I think [the judges] fundamentally disagree about what the problem is and what’s the best solution.”
“There’s a lot going on in those opinions. They’re really rich in that way. This is a vibrant court. It’s a changing court. Lots of judges are weighing in,” Tobias said.
In a dissent last July, Wilkinson blasted the majority ruling that invalidated a police search in 2017 that turned up a concealed firearm at the scene of a shooting in a high-crime housing area in Richmond.
The full court’s decision in that case, U.S. v. Billy Curry, came soon after the May 25, 2020, murder of George Floyd in Minneapolis, an event that clearly colored the judges’ writings on both sides.
“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,” Wilkinson wrote.
But, he warned, “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,” Wilkinson added.
“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,” Wilkinson wrote.
Gregory did not agree.
“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.
Gregory argued that Wilkinson’s dissent “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.’”
“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, bird watching, 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,” Gregory wrote.
He added that, “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, ‘[the] facts of this case give us cause to pause and ponder the slow systematic erosion of Fourth Amendment protections for a certain demographic.’”
Then last month in a Baltimore case that stemmed from a defunct police aerial surveillance program, Wilkinson dissented again, blasting the majority opinion that held that the program violated Fourth Amendment privacy rights.
“All these errors build to a singular consequence — the further distancing of our country’s most disadvantaged citizens from the opportunities so many other Americans enjoy,” Wilkinson wrote.
According to Wilkinson, “America is at its best when it draws contributions from all quarters, yet my friends in the majority are pushing law in a direction that will leave our dispossessed communities islands without hope.”
“One would think from reading the majority’s opinion that all is well in Baltimore. No mention whatsoever is made of the 335 people that were murdered there in 2020 ... nor the 348 who were killed in 2019,” he added. “Baltimore experienced a higher absolute number of murders than New York City, a city with 14 times Baltimore’s population.”
“These numbers make Baltimore one of the most dangerous cities in America. Yet somehow the majority sees over surveillance as Baltimore’s big problem ... and it ventures on a crusade to eradicate it,” Wilkinson concluded.
Gregory countered that Wilkinson’s position relies upon the premise that: “Policing ameliorates violence, and restraining police authority exacerbates it. As surely as water is wet, as where there is smoke there is fire, the dissent takes for granted that policing is the antidote to killing.
“Thus, the dissent repeatedly evokes the grief and trauma of gun deaths only in the name of a familiar cause: police and prisons. Of course, ‘it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail,’” Gregory wrote.
But, Gregory added, “I am skeptical that this logic genuinely respects and represents the humanity, dignity, and lived experience of those the dissent ventures to speak for.”
“The dissent entirely disregards the systems, relationships, and foundational problems that have perpetuated Baltimore’s epidemic of violence,” he wrote. “Baltimore was the first city to implement formal racial segregation in 1910; subsequently, the federal government further ‘redlined’ the city — assigning racial categories to city blocks and restricting home buying accordingly,” he wrote.
“I accept that we disagree on these issues, even vehemently so. I do not accept, however, that some neighborhoods in Baltimore are hopeless absent this aerial surveillance,” Gregory wrote.
Aaron-Andrew P. Bruhl, a professor at the College of William & Mary Law School, said, “Here we see some of our best and most respected judges responding to each other using unusually sharp language. Not something you see every day.”
“Most cases in the federal courts of appeals, and even more so in the trial courts, do not have much of an ideological component. The judges reach the result that the law and the facts lead them to, and the judges usually agree on the correct answer whatever their politics and whoever appointed them to the bench,” Bruhl said.
Some cases feature disagreements along ideological lines and these are often cases where the law is not totally clear, he said.
“In these two cases we have a constitutional rule against ‘unreasonable’ searches and seizures — a vague command — and, in the Baltimore case, a new technology. So these are hard cases, and in hard cases, different judges with different judicial philosophies, political outlooks and experiences can see things differently,” Bruhl said.
The Fourth Amendment’s aim is “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”
There are 12 U.S. circuit courts of appeal that ultimately decide Fourth Amendment questions and any and all other cases in the U.S. except for the small handful that are accepted by the U.S. Supreme Court each year.
The 4th Circuit essentially is the court of last resort for Virginia, West Virginia, Maryland, North Carolina and South Carolina. Four of the court’s 15 judges are from Virginia. Gregory, who took office in 2001, and Wilkinson, appointed in 1984, are the court’s two most senior Virginians on the court.
Bruhl said that, “from the 1990s until the Obama presidency, the Fourth Circuit was famously conservative. President Obama appointed a lot of judges to the court [six], giving it a majority of judges appointed by Democrats. This change in the court’s composition was one of the most notable shifts of any court of appeals, really extraordinary.”
The court, agreed Tobias, is much more moderate and centrist than it used to be. Gregory, the court’s first Black judge in 2001, made history again in 2016 when he became the court’s first Black chief judge.
A native of Philadelphia, Gregory grew up in Petersburg and is a graduate of Virginia State University and the University of Michigan School of Law. Gregory, who told the Richmond Times-Dispatch in 2016 that he was a history buff, is surrounded by it in his courthouse at 1100 E. Main St.
While president of the Confederate States of America, Jefferson Davis’ offices were in the same building — now the second-oldest continuously operating federal courthouse in the country. And Gregory’s office offers an excellent view of the state Capitol in Richmond, the former capital of the Confederacy.
Wilkinson, born in New York, was raised in Richmond and is a graduate of Yale and the University of Virginia School of Law, where he has been an associate professor.
He was the editorial page editor at the Norfolk Virginian-Pilot, from 1978 to 1981; the deputy assistant U.S. attorney general, Civil Rights Division of the U.S. Department of Justice, from 1982 to 1983; and appointed to the 4th Circuit in 1984.
Tobias said, “They bring their lived experiences and their best understanding of what’s going on in say, Baltimore or Richmond, and policing is a real flashpoint for what’s going on.”
“I went to the same high school as Roger Gregory and I was in the same law school class as J. Wilkinson. I like and respect both of them. At the same time, they have different lived experiences. Public schools in Petersburg were only desegregated my senior year, which was 1963. Gregory of course went to those [public] schools years after I did ... and still, probably today, the schools are not funded very well,” he said.
The two Fourth Amendment cases in question were first decided in 2-1 decisions. The appeals court decides almost all cases in three-judge panels. However, each year, in rare cases, the full court agrees to rehear a case as happened in the search and seizure cases from Richmond and Baltimore.
“Those cases tell us a lot about the present, modern court,” Tobias said.
He said the cases are not identical, but they are very close. “They each generated six or seven opinions,” Tobias said. With half the court writing opinions, the cases are a fascinating study of the court, he said.
But while other judges chimed in, Gregory and Wilkinson appear to be the chief protagonists.
“I think they have different views of the procedures, different views of the courts’ role, different views maybe of federalism and what role that plays and different views of what courts are supposed to do,” Tobias said.
“Historically, I think the court had a reputation for being very courteous,” he said. “Judges had different views, but they were less out-in-the-open, less candid about disagreeing.”
“I don’t think in the old days, if you will, the ’80s, ’90s or even earlier, you would get such candor, which is refreshing. You should say what you believe,” Tobias said. “It’s good to have judges who differ and try to put their ideas on paper.”
On the other hand, he said, Gregory and Wilkinson appear to be talking past each other at times. “It’s like ships in the night. I’m not sure they really engaged, directly, the other’s arguments.”
“These are really complicated questions, and it should not be surprising that judges aren’t any better at solving them than the experts,” Tobias said. “It’s very hard. I think they’re wrestling with it and doing the best they can.”
“In the foreseeable future, I think we are going to see the court continue in the direction that it’s been going,” he said.