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.