People For the American Way

Trump Judges Try to Reverse District Court and Allow Police to Stop People in “High Crime Areas” Without Reasonable Suspicion: Confirmed Judges Confirmed Fears

News and Analysis
Trump Judges Try to Reverse District Court and Allow Police to Stop People in “High Crime Areas” 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 Fourth Circuit judge Julius Richardson, joined by Trump judges Marvin Quattlebaum and Allison Rushing, dissented from a ruling of the full court and argued that a district court should be overruled, and police should be allowed to stop an African American man without reasonable suspicion. The July 2020 case is US v Curry.

Police patrolling a high-crime area after dark in Richmond, Virginia heard gunshots appearing to come from the vicinity of Creighton Court, a public housing community. They drove across a field to the complex and went to the other side, where they saw a number of people in a field, some standing near the apartments and some individuals, all African-American males, walking away. Although they had no specific report of a crime, description of suspects, or any reasonable suspicion, police stopped some of the men walking away, including Billy Curry, Jr., shone flashlights on them, and told them to lift their shirts and submit to a visual inspection for firearms. Curry was walking with a cell phone in one hand, had neither hand in his pockets or waistband, made no “furtive gestures,” and was not walking “at an accelerated pace indicative of flight.” When Curry declined to lift his shirt, the police conducted a pat-down search that revealed a revolver. The police never found a shooter and did not accuse Curry of shooting anyone but did arrest him for having previously been convicted of a felony and being in possession of a gun.

A district court ruled that the police stop, seizure and flashlight search of Curry were improper because police had no reasonable suspicion that he had done anything wrong, as generally required by Supreme Court precedent. The government appealed and, as explained in this blog post, Richardson wrote a 2-1 decision in September 2019 reversing the district court, and ruling that “exigent circumstances” justified the stop. The full Fourth Circuit agreed to rehear the case.

Judge Henry Floyd, who had dissented in the 3-judge court ruling, wrote an opinion upholding the district court and effectively reversing the 3-judge court ruling. Eight other judges agreed, including Chief Judge Roger Gregory, who was nominated both by President Bill Clinton and President George W. Bush.  All three Trump nominees (Richardson, Quattlebaum and Rushing) dissented, joined by three other judges.

Judge Floyd began by noting that everyone agreed that police had no reasonable suspicion of Curry and that they must thus demonstrate “exigent circumstances” – in this case, the need to “protect individuals who are threatened with imminent harm.”  Floyd carefully reviewed relevant case law, and explained that the exception is “quite narrow in application,” and is “strictly construed” to cover only “true” emergencies that are “enveloped by a sufficient level of urgency.”

As applied to the “suspicionless investigatory seizure” in Curry’s case, Judge Floyd determined, “the exigent circumstances exception does not apply.” In the prior cases where the exception was applied to such seizures, Floyd noted, officers have “searched for a suspect implicated in a known crime” in the aftermath and vicinity of that crime or through vehicular checkpoints along suspected escape routes. None of these factors was present here. Floyd pointed out that prior case law requires an “objectively reasonable belief” in exigent circumstances based on “specific articulable facts and reasonable inference.” He concluded that  allowing police to “bypass the individualized suspicion requirement based on the information they had here—the sound of gunfire and the general location where it may have originated—would completely cripple a fundamental Fourth Amendment protection and create a dangerous precedent.”

The decision has drawn significant attention because of a solo dissent by Judge J. Harvie Wilkinson that has been criticized as attempting to justify racial profiling.  Trump judge Richardson also wrote a harsh dissent, joined by Trump judges Quattlebaum and Rushing as well as Wilkinson and several others, which is also extremely troubling.

Richardson argued that the situation in this case, particularly the fact that shots were fired in a “high-crime area” like Creighton Court, created “exigent circumstances” that “required” the police to make stops and act as they did in order to “protect the public.” According to Richardson, prior case law justified the suspicionless stop by police out of “concern” for their own safety and that of the public.  The majority opinion, he maintained, “handcuffs law enforcement’s response to possible active shooter situations” and makes it harder for the police to “safeguard our communities” from “the most serious of threats.”

The majority firmly disagreed. Floyd made clear that the majority opinion did not at all limit the police in situations that truly involved active shooters, as opposed to gunshots in the air in a high-crime area that appear “divorced form criminal activity.” He explained that the cases relied upon by Richardson all involved specific “criminal activity in some way”, “particularized suspicion” relating to safety, or an “underlying crime under investigation,” none of which was present in this case. In a separate concurring opinion, Judge James Wynn suggested that Richardson’s claim that “gunshots in a high crime area” mean that police can conduct “suspicionless and wholly discretionary stops of all individuals in the vicinity” would effectively relegate people who live in high-crime areas “to second-class citizen status.” As Judge Floyd concluded, quoting a prior Fourth Circuit decision, the “demographics of those who reside in high crime neighborhoods” in our present society “often consist of racial minorities” and disadvantaged individuals. To conclude that “mere presence” in a high crime area when gunshots have been fired at night justifies the conduct in this case is to “ accept carte blanche the implicit assertion that Fourth Amendment protections are reserved only for a certain race or class of people. We denounce such an assertion.”

The Fourth Circuit majority thus fortunately rejected this dangerous claim and upheld the district court decision concerning the police stop and seizure of Curry. If it had been up to Trump judges Richardson, Quattlebaum and Rushing, however, police would effectively be able to stop Black people like Curry in high crime areas without suspicion and at the police’s complete discretion.


Allison Rushing, Confirmed Judges Confirmed Fears, Fourth Circuit Court of Appeals, Julius Richardson, law enforcement, Marvin Quattlebaum, racial profiling