People For the American Way

Trump Judge Reverses Prior Ruling and Upholds Stop and Search of Black Man: Confirmed Judges, Confirmed Fears

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Trump Judge Reverses Prior Ruling and Upholds Stop and Search of Black Man:   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 Second Circuit judge William Nardini wrote a divided opinion for the full court, joined by all four other Trump judges (Sullivan, Bianco, Park, and Readler), which reversed a three-judge panel and upheld a police stop and search of a Black man in a so-called “high-crime area.” The lead dissent wrote that the ruling would likely “increase the misuse’ of police frisks. The August 2021 decision was in US v Weaver.

Calvin Weaver, a Black man, was walking in what police described as a “high-crime area” in Syracuse. Police in a nearby unmarked car became suspicious for no articulated reason other than that Weaver looked at their car for “a few seconds” before they drove away and that he used one hand to tug up his pants, which were “lower than waist level.” They saw Weaver get into a car and stopped the car shortly later for a minor traffic violation. An officer went around to the front passenger side of the car, where he saw Weaver “squirming” in his seat and “pushing down on his pelvic area,” though the officer did not notice “any bulges or anything.” Weaver complied with a series of orders, including showing his hands, putting his hands on his head, and retrieving and handing over his ID.

The officer then put a hand on his pistol and ordered Weaver to go to the back of the car, place his hands on the trunk, and “spread” his legs, with no explanation. He then commanded that Weaver take a step back, patted him down, and found a gun. When Weaver was charged with gun possession in state court, the judge held a hearing, granted Weaver’s motion to suppress, and dismissed the charges. The court explained that Weaver’s actions “were at all times innocuous and readily susceptible of an innocent interpretation,” and that there was “no evidence” to show that the officers “reasonably suspected” that Weaver was armed and dangerous or that “they were in danger of physical injury.”

When Weaver was prosecuted in federal court on gun possession and other charges, however, a lower court rejected his motion to suppress. On appeal, a three-judge panel of the Second Circuit reversed, explaining that the frisk or search began when Weaver was ordered to stand “spread eagle” across the back of the car and that there was no “reasonable suspicion” to support the search.

The full Second Circuit decided to rehear the case and, in an opinion by Trump judge Nardini, vacated the panel decision and affirmed the lower court’s rejection of the motion to suppress. Six other judges joined Nardini’s opinion, four of whom were the other Trump judges on the court. Two other judges concurred in the result but disagreed with and refused to join Nardini’s “needlessly broad” opinion. Three others vigorously dissented.

Nardini ruled that “verbal directives” by police, such as the order that Weaver stand spread-eagled across the back of a car, do not begin a search, regardless of the officers’ intent or the “reasonable belief” of the individual. Based on the “totality of the circumstances” as described above, Nardini went on, the police had “reasonable suspicion” that Weaver was ‘armed and dangerous” when they began to frisk him. Nardini specifically stated that an officer “need not rule out alternative explanations” for the individual’s behavior and, among other factors, relied on the fact that the incident occurred in a “high crime” area.

In the lead dissent, Judge Rosemary Pooler explained what was wrong and troubling about Nardini’s decision. She showed that Nardini was wrong as a matter of law to rule that the search did not begin when the officer issued the “spread eagle” command, a view that could generally allow police to give such orders routinely without any reasonable suspicion. Even assuming the search did not start until the officer “physically touched” Weaver, she wrote, his “innocuous behaviors” clearly “did not provide reasonable suspicion” for the search.

Specifically, Pooler examined each of the factors that Nardini used to justify reasonable suspicion, and showed that, individually or collectively, they did not justify his conclusion. For example, she pointed out that it was not a “reasonable inference” for Nardini to suggest that Weaver’s “upward tug” of his pants when the police first saw him was needed to counteract the “downward pull” of something like a “firearm,” particularly since the officers never testified that they drew that inference. Similarly, she went on, there were no “specific and articulable facts” supporting a belief that Weaver was concealing something dangerous when he was in the car seat, especially since the officers “did not observe any bulge or outline of a weapon.” The majority’s “notion that looking at an unmarked car” as Weaver did allows “an inference” that he was engaged in illegal activity in a “high-crime” area, she continued, was “absurd” and not supported by case law. In short, she wrote, “every fact, alone and in combination” had an “innocent explanation,” and it was wrong as a matter of law to rule that officers can ignore such explanations completely and rely solely on an officer’s subjective “good faith” to find reasonable suspicion.

Overall, Pooler concluded, Nardini’s ruling that reasonable suspicion could be found in this case “ignores[s] the reality that Weaver’s fate was sealed the moment these officers laid eyes on him” walking in a “high-crime” area. Pooler and other judges who disagreed with Nardini expressed concern that Weaver’s race may well have played a role as well, with one judge suggesting that the police stop of him could have been “tainted by racial bias,” although the record as developed below was insufficient to draw that conclusion. Nardini’s decision, Pooler made clear, will likely “increase the misuse of frisks” by police, “with innocent persons bearing the brunt” of the harm.

This decision by Trump judge Nardini and the other Second Circuit Trump judges reinforces the importance of the Senate promptly confirming Biden nominees who are fair-minded constitutionalists and can help counterbalance the disturbing views of Trump judges on police misconduct and the rights of most Americans. As Judge Pooler lamented, the ruling was an “all too familiar” recent example of the full Second Circuit reaching a “panoply of legally unsupportable holdings” that improperly “expand” the authority of police “at the expense of people’s Fourth Amendment right to be free from unreasonable searches and seizures.”



Chad Readler, Confirmed Judges Confirmed Fears, Joseph Bianco, Michael Park, police misconduct, Richard Sullivan, Second Circuit Court of Appeals, William Nardini