“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.
In December 2019, Trump Sixth Circuit judge Joan Larsen wrote a 2-1 opinion that overruled a district court ruling that denied qualified immunity to four police officers who surveilled, stopped, and detained a man who, the dissent pointed out, was guilty of nothing other than “shopping while black.” The case is Bey v. Falk.
One winter night, Christopher Lee-Murray Bey went with two of his friends to find and purchase space heaters for their apartment. Bey and his friends first went to a store in Livonia, a suburb of Detroit. After learning that the store did not have any space heaters, they drove to a Walmart, which was closed. They remained in the parking lot to use their cell phones to locate a 24-hour Walmart in the town of Canton and proceeded to drive there.
As Bey and his friends entered Livonia, an undercover Livonia police officer spotted them, “turned around,” and began to follow them (allegedly “based on a hunch”) because the van was “kind of beat up.” The officer notified two other undercover police that he was surveilling a van containing three black males, and they joined the surveillance. The police officers continued to follow them to the Walmart in Canton despite the lack of any suspicious activity. When they arrived, one officer followed them inside and continued to watch them, but did not observe any problematic activity as they proceeded to select and pay for space heaters and other items with a credit card. In the meantime, the Livonia police had summoned Canton police to join them.
As Bey and his friends got into the van with their purchases, a Canton police officer stopped them and stated that he was investigating possible “retail or credit card fraud” that they may have committed inside the Walmart, despite the lack of any specific basis for the concern. When Bey gave the police his credit card and the receipt, they determined that the purchases were “lawful” and that no crime had occurred. As Bey was exiting the vehicle, he informed the police that he had a gun, which he turned over to the police along with his license. But because the license had expired, the police arrested Bey. When that case went to trial, Bey moved to suppress the results of the improper police stop, and the trial judge agreed that there was “absolutely no reason in the world to stop these people” and threw out the case.
Bey then filed a federal suit against the four officers, all of whom are white, contending that they had violated his 4th Amendment rights by stopping him without suspicion and that they had improperly targeted, surveilled, and detained him because of his race. The police claimed that the case against them should be dismissed without a trial on the grounds of qualified immunity, but the district court disagreed.
On appeal to the Sixth Circuit, however, Judge Larsen wrote a 2-1 opinion that reversed most of the lower court ruling. Although Larsen agreed that Bey could pursue his claims against the Livonia officer who initiated the surveillance against Bey and his friends, the majority ruled as a matter of law that the other three officers were entitled to qualified immunity, and ordered the dismissal of the case against all of them.
Judge Eric Clay strongly dissented, focusing in particular on the majority’s dismissal of the racial discrimination claims. The facts made clear, Clay explained, that the only offense committed by Bey and his friends was “shopping while black.” Even the majority agreed that the law was clear that someone cannot be targeted for surveillance and investigated “solely on the basis of skin color,” and agreed that a jury could well find against the Livonia officer, who began the surveillance based on that factor. But Clay pointed out that the majority showed “no legal authority” for ruling differently concerning the other three officers, and improperly drew factual inferences in favor of them in suggesting that their role was “limited.”
Based on the facts viewed in a light most favorable to Bey, as the law requires at this stage, Clay concluded that a jury could well find that the other officers “acted out of racial bias” in participating in the continued surveillance and detention of Bey, especially since statistical evidence showed that although the population of Livonia is only 3.4 percent African American, more than 50 percent of those arrested by Livonia police are African American. The record contained similar statistics for Canton, and revealed that the police forces in both cities are almost all white. Clay went on to explain that the decision to reverse the lower court and grant immunity to the three officers on Bey’s Fourth Amendment claims was similarly flawed.
Judge Clay wrote extensively about the flaws in and the dangers of Larsen’s majority opinion. He explained that the decision “usurps the role of the jury” in favor of the majority’s “own misguided view of the facts,” and “chooses to minimize” the fact that the case is “about police officers allegedly targeting, surveilling, and detaining Bey and his friends because of the color of their skin.” The result was not only to “eviscerate” the 14th Amendment’s “prohibition on racial discrimination” and turn “a blind eye to race-based policing that violates the constitutional rights of black and brown Americans” in this case, he noted. In addition, Judge Clay explained, the ruling was “dangerous” because it “allows unconstitutional race-based policing to continue unabated” and “invites an increase in discriminatory conduct.” Indeed, Clay wrote, Larsen’s opinion “signals to police officers that they have license to conduct race-based surveillance and make race-based stops,” as long as they “do not admit their true motivations.” In short, he concluded, Larsen’s majority ruling “incentivizes other officers to engage in race-based policing and commit future constitutional violations.”