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Trump Judge Casts Deciding Vote to Authorize Police to Stop and Question Black Man Without Reasonable Suspicion: Confirmed Judges, Confirmed Fears

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Trump Judge Casts Deciding Vote to Authorize Police to Stop and Question Black Man Without Reasonable Suspicion: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Sixth Circuit judge John Nalbandian cast the deciding vote to authorize police to stop and question a black man walking with a friend in a “high crime” area even though there was no reasonable suspicion of illegal activity. The January 2021 decision is US v Lewis.

 Devin Devon-Moore Lewis, an African-American man, was walking with a friend down a public alley in what police have described as a “high-crime area” in Kalamazoo, Michigan. The police later claimed that the alley had previously been used to “evade police detection” or “trespass” into nearby residential areas, although no such trespass or any other criminal activity had been reported. Although not investigating any suspected criminal activity at the time, Officer Nick Oliver, who was on patrol in the area in his police car, decided to park his vehicle near Lewis and his friend, with “the headlights flashing in their faces,” got out of his car, shone a flashlight at them, and began to talk to them, asking Lewis to “take his hand out of his pocket,” which he did.

As the encounter continued, Oliver became increasingly suspicious of Lewis, allegedly because Lewis “patted his waistband” in a way that suggested he could be carrying a weapon; brushed something “small and white from behind his left ear and onto the ground,” which could have meant he was discarding contraband;  and had a “bulge” near his right hip that he angled away from Oliver, which also suggested he had  a weapon. Oliver summoned another police car, and claimed that Lewis was evasive when he asked him his full name, after which he told Lewis that he would run a “warrant check” on his name. The police proceeded to handcuff and search Lewis, found drugs and a gun, and charged Lewis accordingly. Lewis’ motion to suppress the results of the search because it was based on an improper stop was denied, and Lewis was convicted and then appealed.

In a 2-1 decision in which Trump judge Nalbandian was the deciding vote, a panel of the Sixth Circuit affirmed. Although recognizing that there must be “reasonable suspicion” of criminal activity before police can stop, seize and frisk someone, the majority claimed that no “stop” or seizure of Lewis had occurred when Oliver stopped, shone his headlights and flashlight at Lewis and his friend, and began to question them and asked Lewis to take his hand out of his pocket. This was because, the majority asserted, Oliver was then speaking in a “non-threatening tone,” was mainly talking with Lewis’ friend, and Lewis “could have walked away,” whether “around Oliver’s patrol vehicle” or otherwise. The majority maintained that Lewis was not seized until Oliver told Lewis he wold run a warrant check on his name, or when the second vehicle arrived, by which time the police did have reasonable suspicion to stop and search him.

Judge Eric Clay strongly dissented. Although police can stop and question someone when they first have reasonable suspicion, he explained, they cannot legally “stop and interrogate individuals” in “the hope” that such suspicion “may arise or develop” to then “justify” search and seizure, which is what apparently happened in this case. Even though Lewis could in theory have walked away when Oliver first questioned him, Clay continued, a “reasonable person would not have felt free to leave the interaction” under the circumstances, so that Lewis clearly had been “seized” at that point without reasonable suspicion. Authorizing police seizure of Lewis under these circumstances, Clay pointed out, would effectively allow officers to “stop anyone present in a purported high-crime area at any time without a basis to suspect criminal activity,” raising “special concerns of racial, ethnic and socioeconomic profiling.” The police conduct should have been “repudiated,” Clay wrote, and the lower court denial of Lewis’ motion to suppress should have been reversed.

As a result of Nalbandian’s deciding vote, however, the stop and search of Lewis was affirmed. More broadly, the ruling threatens to encourage or sanction precisely the type of improper police stops and racial profiling that concerned Judge Clay and continues to concern many others.

The ruling echoes an effort by Trump judges in the Fourth Circuit to lower constitutional protections for people in “high crime areas” so that police can stop them without suspicion at their complete discretion. In that case, fortunately, the Trump judges were in the minority.


Confirmed Judges Confirmed Fears, John Nalbandian, Sixth Circuit Court of Appeals