Fourth Amendment

4th Circuit spars over predictive policing; dissenter criticized for writing 'with a smooth pen and a tin ear'

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An appellate judge's dissent extolling predictive policing in high-crime areas led to pushback from several judges, including one who complained the policing method "is little more than racial profiling writ large."

The dueling opinions were issued Wednesday by the en banc 4th U.S. Circuit Court of Appeals at Richmond, Virginia. The majority opinion is here and the dissent by Judge Harvie Wilkinson is here.

The court held 9-6 that exigent circumstances did not justify officers’ suspicionless search of a man who was walking near an apartment complex where shots had been fired less than a minute before. As a result, a gun seized in the search could not be used to prosecute the man, Billy Curry.

Judge Harvie Wilkinson wrote separately and also joined an opinion by another dissenter.

In his separate opinion, Wilkinson said the majority’s conception of the Fourth Amendment “delivered a gut-punch to predictive policing,” in which officers are dispatched to areas where crime is believed to be most likely to occur. That allows officers to more quickly arrive at crime scenes, as they did in Curry’s case.

“”By stripping departments of effective public safety programs—and then adding to the inherent dangers and difficulties of the streets a judicial rebuke for even the most professional and minimally-intrusive policework—courts risk inducing police officers to simply abandon inner cities as part of their mission,” Wilkinson wrote.

Wilkinson agreed that predictive policing “cannot serve as a facile excuse for indiscriminate interventions. But neither can skepticism toward the preventive potential of predictive policing in violent crime locales allow us to deny its benefits ab initio to communities that might welcome them.”

“Couple an area’s rise in crime with a lack of respect shown by courts for even good police work, and you have an America where gated communities will be safe enough and dispossessed communities will be left to fend increasingly for themselves,” Wilkinson wrote.

Wilkinson acknowledged that “police have made more than their share of mistakes and that the sad legacy of racism and mistrust hovers today over police-citizen interactions.”

But he said it is “also true that stereotyping, so long an instrument of racial injustice, can be unfair to countless individual officers as well.”

Judge Stephanie Thacker was among the judges who wrote a concurrence addressing Wilkinson’s dissent. Thacker said Wilkinson “writes today with a smooth pen and a tin ear.”

Thacker said predictive policing “is little more than racial profiling writ large” because it results in heavier policing of communities of color.

Chief Judge Roger Gregory and Judge James Wynn Jr. also criticized Wilkinson’s views in concurrences.

Gregory said Wilkinson ignores the perils of overpolicing in a “fallacy-laden exegesis” of predictive policing.

“Through his opinion, my colleague contributes to the volumes of work gifted by others who felt obliged to bear their burden to save minority or disadvantaged communities from themselves,” Gregory wrote.

Gregory said many citizens feel insecure regardless of their location, then referred to instances in which minorities were killed or targeted.

“In a society where some are considered dangerous even when they are in their living rooms eating ice cream, asleep in their beds, playing in the park, standing in the pulpit of their church, birdwatching, exercising in public, or walking home from a trip to the store to purchase a bag of Skittles, it is still within their own communities—even those deemed ‘dispossessed’ or ‘disadvantaged’—that they feel the most secure. Permitting unconstitutional governmental intrusions into these communities in the name of protecting them presents a false dichotomy.”

Hat tip to the National Law Journal, which covered the decision.

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