Police Abuse

Federal Judge Attacks Pro-Police 'Orthodoxy' in 4th Amendment Case

Judge Janice Rogers Brown makes the case for reviving 4th Amendment protections.

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Courtesy of Washington & Lee University Law School

Federal Judge Janice Rogers Brown, a George W. Bush appointee frequently criticized by liberals for her "libertarian" jurisprudence, filed a blistering opinion today challenging the "prevailing orthodoxy" in Fourth Amendment cases which, she said, permit the police to conduct "a rolling roadblock that sweeps citizens up at random and subjects them to undesired police interactions culminating in a search of their persons and effects."

At issue in Judge Brown's concurrence today in the case of United States v. Gross was a 2013 arrest by Washington, D.C.'s Gun Recovery Unit. In February 2013 four officers from that unit were driving around on "gun patrol" when they spotted Will Gross, followed him, and finally approached him. One of the officers shined his flashlight on Gross and demanded that Gross show the officers his waistband. Another officer asked Gross to submit to a search. Gross fled. When the police apprehended him, Gross had a handgun in his possession.

At trial, Gross moved to have the gun suppressed from evidence because its discovery was the result of an illegal seizure by the police. But the federal district court disagreed, arguing that the initial police encounter with Gross did not qualify as a seizure under the Fourth Amendment because it was a "consented" interaction between citizen and state. Today, the U.S. Court of Appeals for the District of Columbia Circuit upheld that judgment. Judge Brown concurred in that decision, though, as she explained in her opinion, it was only because binding precedent required her to hold her nose and do so:

In its efforts to ferret out illegal firearms the District has implemented a "rolling roadblock." Officers randomly trawl high crime neighborhoods asking occupants who fit a certain statistical profile—mostly males in their late teens to early forties—if they possess contraband. Despite lacking any semblance of particularized suspicion when the initial contact is made, the police subject these individuals to intrusive searches unless they can prove their innocence. Our case law considers such a policy consistent with the Fourth Amendment. I continue to think this is error. Our jurisprudence perpetuates a fiction of voluntary consent where none exists. [Citations omitted.]

According to Judge Brown, under this dismal case law, the police have free rein to "engage with members of the public en masse and at random to fabricate articulable suspicions for virtually every citizen officers encounter on patrol."

What can be done? Judge Brown offered this advice to those citizens unfortunate enough to bear the brunt of such sweeping law enforcement tactics:

Persons questioned by the District's Gun Recovery Unit patrols may reasonably be at a loss as to how to react to these contacts. Is there a means to react to such nominally voluntary encounters that might preserve their constitutional prerogatives? I offer this advice: speak to officers firmly, politely, respectfully. Tell them, "I do not wish to have an encounter with the police right now. Am I free to leave?" If the answer is "no," then coercion will cease to masquerade as consent. Our courts will be forced, at last, to directly grapple with the reality of the District's policy of routinized and involuntary seizures.

The D.C. Circuit's opinion in United States v. Gross is available here.

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47 responses to “Federal Judge Attacks Pro-Police 'Orthodoxy' in 4th Amendment Case

  1. She’d better be the next nominee to the Supreme Court. Just sayin’.

    1. I have been hoping that since W f’ed up and was going to put his own staffer on the bench…

    2. The lulz from watching the progs claim she isn’t a “real” black woman would be epic.

      1. Auntie Tom?

      2. From Alabama, the daughter of sharecroppers.

    3. Unfortunately she’s 65, so probably a bit too old for it now.

      1. Screw that. If Paul wins, I fully expect her to be nominated. She’s wreak havoc on biblical levels–dog and cats living together, really wrath of God stuff.

    4. Yes!. After Naplitano.

  2. What’s with her taking the Constitution seriously? Doesn’t she know it’s just a bunch of suggestions, not binding law?

    1. She’s the libertarian judge. I mean, the only one. She’s like a judicial Highlander.

      1. Well done.

        1. Yes.

  3. ..and video, video, video.

    1. Or else the cops will just lie anyway.

  4. Tell them, “I do not wish to have an encounter with the police right now. Am I free to leave?” If the answer is “no,” then coercion will cease to masquerade as consent.

    In which case the cops will lie and nothing else will happen.

    1. Well, technically you would have an encounter with a police baton and not the police, so technically they wouldn’t be lying.

      1. I was thinking the same thing, except ‘drop weapon’ instead of ‘police baton.’

    2. And make sure you’re recording with a device that uploads directly so you can prove you said that when you get out of the hospital.

      1. I have ‘Periscope’ on my iPhone for this purpose.

  5. How refreshing.
    Thank you, Federal Judge Janice Rogers Brown.

  6. arguing that the initial police encounter with Gross did not qualify as a seizure under the Fourth Amendment because it was a “consented” interaction between citizen and state.
    .
    So…. ROADZ!?

  7. “Our case law considers such a policy consistent with the Fourth Amendment. I continue to think this is error. Our jurisprudence perpetuates a fiction of voluntary consent where none exists.”

    Since we’ve previously had some rather robust debates regarding “judicial deference” to the legislature and whether it should be a valid concern for judges, how does the commentariat feel about stare decisis? I mean, as much as I love Janice Rogers Brown, she’s basically voting in favor of something she believes is legally incorrect. Is complete deference within a branch of government (in this case ostensibly for consistency) comparable?

    1. stare decisis is good, except when it isn’t.

    2. If it comes from the SC, I don’t think it’s considered stare decisis. She’s bound by the higher court. Not that all judges always abide by that.

      1. Yeah, SciFi, stare decisis actually encompasses what your own court has previously decided as well.

        1. If I wasn’t clear, I agree. I didn’t read her opinion, but if she’s concurring because her circuit previously decided it, I agree she should not rely on stare decisis. But if she’s concurring because the Supreme Court has previously ruled that way, then it’s not stare decisis and instead she is bound by the higher court’s decision.

          Someone please correct me if I am wrong on that.

          1. Lower courts have ignored higher court rulings before. It’s a good way to get the smack down, but there’s no legal bar per se. Besides, lawyers are good at saying, “No, no, this one is different.” That’s really the only way to get rid of bad caselaw.

            1. Agreed. But she seems to be one of the few principled ones on the bench, so I am thinking if this came from the Supreme Court, she felt bound to honor their precedent.

    3. It’s okay as a basic doctrine, to avoid undue uncertainty in the law, but it is just that–a useful rule of thumb. The Constitution should trump it every single time, so if you’re a judge and see something you believe to be unconstitutional, you should throw stare decisis out on its ass.

      1. That’s basically my feeling as well, ProL. If all you’re going to do is defer to precedent, all you’re good for is matters of first impression.

        Not to mention this country has more than its fair share of horrific judicial decisions that needed (and still need) to be overturned.

        1. The Constitution doesn’t have a word about rubber-stamping coup d’?tats.

      2. But that’s not being a team player.

        1. It’s every man for himself.

          1. Ah, yes. The central message of Buddhism!

            1. And the London Underground is a political movement.

              1. Aristotle? Yep, Belgian.

  8. unless they can prove their innocence.
    .
    And, as we all know- NO ONE IS INNOCENT

  9. If not for the absolute racism of the Democratic Party, this women would likely be on the Supreme Court.

    1. Bush could have done it.

    2. this is the same Democratic Party that got the first black president elected?

      Im not a fan of team blue but its a bit more than mildly retarded to claim they would block a political candidate for their race with the black guy currently in the white house.

  10. “I do not wish to have an encounter with the police right now. Am I free to leave?”

    I dunno. That seems both uppity, and furtive, if you know what I mean.

    1. As a precaution, never wear pants. No waistband.

    2. I love judge Brown, but that is nothing but a ticket to get your head stomped or worse with most cops.

      1. “Come see the violence inherent in the system!

        Come see the violence inherent in the system!

        Help! Help!

        I’m being repressed!!!!”

      2. Though probably less likely to get your head stomped than running. Which, if you are not under arrest, should also be OK.

        And with the growing prevalence of 4th amendment activists putting videos on Youtube, I actually think more cops are learning not to freak out when people challenge them that way. Of course those are usually well dressed white people in cars and not suspicious “urban” looking people on the street.

      3. Not a head stomp, but a chokehold. The dude selling loosies did exactly what Rogers Brown says to do.

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