En banc 7th Circuit upholds gun seizure in claimed case of 'parking while black'
A full federal appeals court has upheld a conviction based on a gun discovered when police shined their lights into a car parked too close to the crosswalk.
The 7th U.S. Circuit Court of Appeals at Chicago upheld the conviction of Randy Johnson over a dissent that claimed the car was targeted because the occupants were “parking while black.” Courthouse News Service, the Milwaukee Journal Sentinel and Reuters covered the 5-3 decision (PDF).
Milwaukee police approached the car in January 2014 when it was stopped 7 or 8 feet from a crosswalk, violating a law that generally bars cars from stopping within 15 feet of a crosswalk, Judge Frank Easterbrook wrote in the majority opinion.
Police shined their lights in the car and saw passenger Johnson try to hide something. An officer ordered Johnson to get out of the car and found a gun on the floor that Johnson was not supposed to have as a convicted felon. He entered a conditional guilty plea and challenged the gun evidence.
Easterbrook cited the 1996 Supreme Court decision Whren v. United States, which upheld a stop and arrest when a driver is speeding or engaged in another motor vehicle violation. Whren applies to parked as well as moving vehicles, Easterbrook said.
Easterbrook also said Johnson never contended that police had considered the race of the car’s occupants when deciding whether to approach. “We therefore do not consider whether, and if so when, using racial criteria to select among potential targets of investigation would require the suppression of evidence,” Easterbrook said.
Judge David Hamilton dissented in an opinion joined by two other judges.
“Five officers in two police cars seized the passengers of a stopped car,” Hamilton wrote. “The officers swooped in on the car, suddenly parking close beside and behind it with bright lights shining in from both directions, opening the doors, pulling all the passengers out and handcuffing them. The district court found, and the majority and I agree, that the passengers were seized as the officers swarmed them, before the officers had any sign that one passenger had a firearm. The sole basis for this intrusive and even terrifying ‘investigatory stop’? A suspected parking violation … for parking too close to an unmarked crosswalk. …
“The police tactics here would never be tolerated in more affluent neighborhoods.”
By extending Whren to a suspected parking violation, the majority is enabling seizures for “parking while black,” Hamilton said.
The case is United States v. Johnson.
