Appeals Court Bashes Predictive Policing And The Judge Who Argued People In High Crime Areas Want Fewer Rights

from the planning-an-early-retirement-party-for-Judge-Wilkinson dept

A very interesting decision [PDF] has been handed down by the Fourth Circuit Court of Appeals. It not only addresses what constitutes exigent circumstances, but also attacks predictive policing as nothing more than a tool law enforcement uses to enforce a racist status quo.

The decision is long. It has four(!) concurrences and two dissents. Three of the concurrences attack the dissent written by Judge J. Harvie Wilkinson, who believes not giving the government what it asked for blunts officers’ ability to police high-crime areas.

Here’s the Appeals Court’s final ruling, which details the events leading to this challenge, as well as its outcome.

This appeal presents the question of whether the Fourth Amendment’s exigent circumstances doctrine justified the suspicionless seizure of Defendant-Appellee Billy Curry, Jr. The police seized Curry after responding to several gunshots that were fired in or near an apartment complex less than a minute earlier. When the police arrived, they encountered five to eight men—including Curry—calmly and separately walking in a public area behind the complex, away from the general vicinity of where the officers believed the shots originated; several other people, likely visitors or residents, standing around closer to the apartments; and another man walking toward the rear of the officers’ patrol car, who appeared to be favoring one of his arms.

The district court held that exigent circumstances did not justify the suspicionless, investigatory stop of Curry, and so it granted his motion to suppress a firearm and other evidence based on the unreasonableness of the seizure that led to its discovery. We agree with the district court’s conclusion. To hold otherwise would create a sweeping exception to Terry v. Ohio, 392 U.S. 1 (1968).

The government first argued this was a permissible Terry stop supported by reasonable suspicion Curry had something to do with the fired shots officers were notified about. It abandoned that argument during its appeal, admitting the officers had no articulable suspicion. Instead, it relied on the exigent circumstances exception to the Fourth Amendment. In essence, the government argued officers can stop and search anyone in an area they believe a crime has occurred. Not so, says the Fourth Circuit.

The exigent circumstances doctrine typically involves emergencies justifying a warrantless search of a home, not an investigatory stop of a person, and the few cases that have applied the doctrine in the investigatory seizure context are materially distinguishable. In those cases, the government isolated a discrete area or group of people and engaged in minimally intrusive suspicionless searches in an effort to search for a suspect implicated in a known crime in the immediate aftermath of that crime. Requiring such suspicionless seizures to be narrowly targeted based on specific information of a known crime and a controlled geographic area ensures that the exigency exception does not swallow Terry whole. Because these limiting principles were wholly absent from Curry’s stop, we hold that the stop was not justified by exigent circumstances and thus was not reasonable under the Fourth Amendment.

Judge Wilkinson’s dissent starts out promising enough:

We face again in this day of sad and unhappy truths the divide between what are already two Americas.

But then devolves into pro-law enforcement, anti-Fourth Amendment rhetoric:

In one America, where citizens possess the means to hire private security or move to safer neighborhoods, the impact of judicial barriers to effective law enforcement may be minimal. In another America, though, people have no choice but to endure the unintended consequences of our missteps, as crime moves to fill the vacuum left by the progressive disablement of the law’s protections. These repercussions, moreover, serve as reminders of the fact that only a segment of this country, the least fortunate among us, ends up shouldering the weightier burden when our branch of government oversteps its proper role.

Wilkinson’s argument is this: to properly police areas where crime is common, the government must be allowed to “overstep its proper role.” And this side of the “two Americas” should just be willing to exchange part of their rights for greater law enforcement efficiency. This tradeoff begins with predictive policing, which relies on biased input to make biased decisions about where police should focus their proactive efforts. This means entire neighborhoods and everyone in them are treated like criminals until they can prove otherwise to the police officer accosting them. Wilkinson thinks this is a good thing and says the limitation on exigent circumstances applied here undercuts law enforcement’s ability to treat hundreds of people like criminals. Predictive policing put these officers near the scene of the shooting, allowing them to respond within seconds. That they responded unconstitutionally doesn’t appear to bother Judge Wilkinson.

It is hard to see how this innovation [predictive policing] can continue under the majority’s conception of the Fourth Amendment. Indeed, the sole practical takeaway from the majority opinion is that police officers on the scene of an unfolding emergency must sit and wait for identifying information, rather than use discretion and judgment to get control of a possibly deadly event, lest the prevention of a homicide violate the Constitution. This injunction entirely saps predictive policing of its potency, and effectively forecloses the tradeoff— faster responses for fuller information—that innumerable cities have opted for in making their streets safer. This is a mistake.

The ends justifies the means, according to this judge. Wilkinson seems to believe many US citizens would welcome the chance to be proactively viewed as criminals. But the Fourth Amendment stands in the way of this privilege.

Is predictive policing the answer? Is it presumptively too injurious to individual rights in affected areas? Richmond has not been spared the mix of peaceful protests and violent outbreaks evidenced throughout the nation, and I hardly know what might begin to heal this divide. I know only that communities deserve the chance to give predictive policing a try.

Wilkinson suggests the Fourth Amendment can be altered at the state and local level to allow officers more leeway to serve the public by violating the rights.

The Fourth Amendment—and the “reasonableness” standard at the heart of it—is hardly inconsistent with our federalism. States and localities, many of them majority-minority, can choose within “reason” what law enforcement strategies work for them. Their latitude is not infinite, but latitude there is.

This bizarre blessing of Constitutional rights violations by Judge Wilkinson is greeted by three stinging concurrences that spend most of their runtime attacking his dissent. The first is written by Chief Judge Roger Gregory, a Black man (Wilkinson is white), and it is merciless.

When I read the first line of Judge Wilkinson’s dissent I was heartened by the thought: well, at least he acknowledges that there are “two Americas.” But this glint of enlightenment was to serve as a “soap box” for his charge against the majority’s decision. It is understandable that such a pseudo-sociological platform was necessary as his assertions are bereft of any jurisprudential reasoning. More to the point, his recognition of a divided America is merely a preamble to the fallacy-laden exegesis of “predictive policing” that follows. 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.

Judge Gregory says subtracting Constitutional protections and adding more cops isn’t going to make communities like these feel any more safe.

[W]e know that many of our fellow citizens already feel insecure regardless of their location. 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. My colleague insists on a Hobson’s choice for these communities: decide between their constitutional rights against unwarranted searches and seizures or forgo governmental protection that is readily afforded to other communities.

He then points out that the predictive policing Judge Wilkinson lauds — the software that put officers on the scene of a potential shooting within seconds — didn’t do anything to improve the quality of the police work.

From this perspective, the video of the present incident mimics the aggressive, discourteous, and ineffective policing that concern many. As the officers approached the scene seconds after gunshots rang out, the members of this community, including Curry, pointed them in the direction in which the perpetrator was likely to be found. Because, as Judge Diaz notes in his concurrence, it would have been difficult for the officers “to determine whether any firearm (which, of course, are generally lawful to possess) seized in the effort to identify the suspect was the source of the gunfire,” one would think that the officers’ best hope for finding the shooter was to accept the guidance offered by community members. That, of course, was not the case here. The officers ignored the assistance and the shooter got away. Like most citizens, it is likely that residents of the Creighton Court community do not want police officers to be tough on crime, or weak on crime—they want them to be smart on crime.

The immolation of Wilkinson’s dissent continues in the second concurrence — one that also questions what the judge was thinking when he decided people in high-crime areas should be treated as second-class citizens when crime is being investigated.

While Judge Wilkinson agrees “that the phrase ‘high-crime area’ cannot serve as a facile excuse for indiscriminate interventions,” I am puzzled that in the next sentence, he advocates doing just that by stating, “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.” Wilkinson Dis. Op. at 67. Justifying predictive policing on the policy basis that neighborhoods—whether termed “violent crime locales” or “high-crime areas”—“might welcome [it]” still results in the citizens of those communities being accorded fewer constitutional protections than citizens of other communities, as the police accept Judge Wilkinson’s proposed tradeoff: “faster responses for fuller information.” Id. Such an outcome fails as a matter of law. We may not treat citizens as second-class simply because they live in areas that my good colleague calls “violent crime locales.”

The second concurrence reminds Judge Wilkinson of the court’s place in the grand scheme of things. It’s supposed to be a check against government overreach, not an enabler of Constitutional violations.

[O]ur analysis must stay rooted in constitutional principles, rather than turn on naked policy judgments derived from our perception of the beneficial effects of novel police techniques

It also states something overlooked entirely in the second dissent: there are more Amendments in play here than just the Fourth.

People of course have a right to own firearms. And sometimes firearms are discharged near others, whether deliberately or accidentally. If anybody in the vicinity of gunfire can be stopped without reference to any of the Fourth Amendment’s protections, it follows that those protections apply with lesser force to those who own guns and discharge them—and to those who are merely within earshot. And unless we wish to limit such a diminution in constitutional safeguards to those in high crime areas—which we cannot, and should not, do—Judge Richardson’s reasoning would apply with equal force to both economically disadvantaged public housing communities like Creighton Court and wealthy suburban gated complexes.

The fourth concurrence — written by Judge Thacker and Judge Keenan — is equally as harsh in its assessment of Wilkinson’s attempt to stretch exigent circumstances to cover the search of anyone in the general location of a suspected criminal act.

I am compelled to write this separate concurring opinion only in response to the dissenting opinion authored by Judge Wilkinson, who writes today with a smooth pen and a tin ear. Judge Wilkinson’s dissenting opinion accuses the majority members of our court of all but dismantling the rule of law and of “overstep[ping our] proper role.” Wilkinson Dissenting Op., post at 63. I cannot sit silent in the face of Judge Wilkinson’s dissent. In my view, the use of predictive policing, which Judge Wilkinson endorses, is little more than racial profiling writ large.

Wilkinson’s touting of predictive policing (and its apparent attendant reduction of civil liberties) is just as awful as the law enforcement miracle he believes at-risk communities are dying to have inflicted on them.

Over time, predictive policing has been shown to be, at best, of questionable effectiveness, and at worst, deeply flawed and infused with racial bias.

[…]

Technology cannot override human flaws. It stands to reason that any computer program or algorithm is only as good as the data that goes into it. In the computer science arena, this is known as “GIGO” (garbage in, garbage out); flawed data input produces nonsense output. In predictive policing, GIGO is a real concern because “hot spot policing,” which utilizes historical crime data to predict future crime hot spots, can be infected with years of racial bias. Because “historic crime data is biased through the practice of racialized enforcement of law, predictive policing will inherently reinforce and perpetrate this structural racism.”

Finally, there’s an agreement of sorts:

I note that Judge Wilkinson and I agree on one point. “If change is to occur, part of the obligation must lie with police themselves, and the essential efforts they must daily make to earn the trust of their communities and prove themselves responsible stewards of their power.” […] Thus, to achieve this result, we must never lose sight that it is individual police officers, not a computer program, who abuse their authority by violating the constitutional rights of citizens such as Billy Curry, based on the simple fact that they committed the offense of “walking while black.” No fact in this case ever suggested Billy Curry’s involvement in the commission of the crime under investigation. And the majority’s enforcement of his constitutional rights is the shield that will protect him and others from the bleak future imagined by Judge Wilkinson.

How a discussion of an unconstitutional stop and frisk turned into a spirited defense of one of the worst law enforcement tech developments of the last half-century is something only Judge Wilkinson can fully comprehend. As for most of the rest of the Appeals Court judges, the willingness to cast aside rights in exchange for law enforcement efficiency is truly — and horrifically — inexplicable. Some judges may secretly desire a more police-state-ish existence… at least for some American citizens. Fortunately, the rest of the court isn’t having it. The Fourth Amendment lives.

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Comments on “Appeals Court Bashes Predictive Policing And The Judge Who Argued People In High Crime Areas Want Fewer Rights”

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40 Comments
This comment has been deemed insightful by the community.
That One Guy (profile) says:

'Well someone has to take up that burden...'

Ah delightful, live in the ‘wrong’ area and you should be so blessed to sacrifice your rights so that police can ‘get the bad guy’, nevermind that they didn’t actually do that this time around(next time I’m sure), or that that’s merely replacing one problem for a worse one because now the people assaulting you have legal immunity for basically anything they care to do.

I am ever so glad that the majority was on the right side this time around, even as I am disturbed and disgusted that a federal appeals court judge would propose such horrific ideas as ‘if constitutional protections get in the way of police then they need to be changed not the police’.

Annonymouse says:

Re: Nice to see

Sadly verbal chastisement will be as effective on this and similar judges as it was for the police themselves.

At the very least judges need to be publicly and physically slapped by their peers.

Personally I would like to see them charged and incarcerated for the actual crimes they aid and abett.

This comment has been deemed insightful by the community.
Bobvious says:

they want them to be smart on crime.

When decisions are made by software, we are entitled to see that source code because it is no different to seeing the wording of the laws by which we are governed.

Relying on software to be infallible is a bad move.

The judges rightly state, "Technology cannot override human flaws. It stands to reason that any computer program or algorithm is only as good as the data that goes into it. In the computer science arena, this is known as “GIGO” (garbage in, garbage out); flawed data input produces nonsense output."

rich says:

Re: Re: Re:2 In the late 70s it was a common notion:

Just as my 68 year old brain realized that it was from a Moody Blues song I read your much appreciated supplying of the relevant info…thanks! My favorite band also, with Van der Graaf Generators " Plague of Lighthouse Keepers deserving a place in history.

Thank God the 4th Circuit revealed what happens to even a formally educated mind ( Wilkinson) when an unfounded belief in the trustworthiness of police allows for decisions that would no doubt cause a nightmare in the future for certain areas and classes of people. Remember many judges thought " de minimis " detentions and roadside interrogations, coerced searches, falsely alerting dogs etc. were acceptable: After all, our time as citizens is not worth much…they can detain us for hours because at least it is not a custodial arrest…yet. Thank God for Rodriguez removing the de minimis standard…Justices like Wilkinson would decry the limitations placed on police because down deep men like him are basically willing to make decisions that seem to make sense to his ilk , who value liberty far differently than we do.

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Not THAT AC says:

Re: Re: In the late 70s it was a common notion:

It was also considered that they will get it (badly) wrong before that. I recommend "Computers Don’t Argue” by Gordon R. Dickson (1965), for a slice of dystopia relevant to the topic under discussion here.

This comment has been deemed insightful by the community.
Not THAT AC says:

Re: Re: Re: In the late 70s it was a common notion:

Mentioned in the first issue of the Risks digest, 1985
(http://catless.ncl.ac.uk/Risks/1/1)

"On this day [8 October 1984], the ACM Council passed an important resolution. It begins:

Contrary to the myth that computer systems are infallible, in fact computer systems can and do fail."

I would say it’s a fair inference that if it rates a mention from a reasonably well recognised association, it must have been in general circulation well before that.

Annonymouse says:

Re: Re: The computer is your friend

I am sorry, citizen, but this entry is currently placed at Security Clearance VIOLET. Reading any of the words contained within this page without appropriate security clearance is considered treason. Please proceed directly to your nearest available Termination Booth. Thank you for your cooperation. Have a nice data cycle.

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Another Kevin (profile) says:

Re: Machine learning

When decisions are made by software, we are entitled to see that source code because it is no different to seeing the wording of the laws by which we are governed.

Alas, the source code won’t help. You can open it up completely, and it will remain inscrutable.

Most such software, nowadays, relies on some sort of deep learning algorithm. Those algorithms are, in their place, better than nothing: they can troll through a vast volume of data and identify regularities. Nevertheless, they are noted for their inscrutability. They produce only decisions. Nowhere do they offer any rationale; it’s all based on the confluence of far too many statistical metrics ever to tease out what was the deciding factor in any individual case. They most certainly cannot offer anything resembling a legal justification.

More over at Technology Review (paywall warning).

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Bobvious says:

Re: Re: Machine learning

They produce only decisions. Nowhere do they offer any rationale

Exactly. And just like decisions in a reasonable and competent court, those decision have to be justified with references and precedent/s.

AI and Machine Learning don’t get away with making bad decisions or inferences because they might appear to be beyond understanding because of perceived and actual complexities.
https://www.theverge.com/2016/3/24/11297050/tay-microsoft-chatbot-racist

OGquaker says:

Re: they want them to be smart

Nixon and McNamara and LaMay were smart; the willingness to cast aside rights in exchange for …. efficiency thus we dropped 240,000,000 anti-personal mines on just one country Laos, the CDC declined free testing at San Quentin and now it has the third-largest coronavirus outbreak in the United States. https://www.youtube.com/watch?v=YRBec6rjJOk

Scary Devil Monastery (profile) says:

Re: Re: they want them to be smart on crime.

"Back in the day, they used to have an acronym for those trusting the output of the computer…"

Oh, there were several such acronyms. For a long time system administrators had(somewhat justified) views about the ability of the average ‘luser’ to find their own ass with both hands and a map.

What I find sometimes despair about is the current willingness of political leaders and government professionals to ascribe magical powers to computers. Predictive policing and facial recognition tech are the current two crystal balls peddled by unscrupulous tech companies in true dilbertesque fashion in the same way shady soothsayers tried securing mealtickets from wealthy patrons since forever.

And that bugs me to no end because our modern leaders aren’t supposed to be as gullible and inept as 13th-century tyrants or superstitious roman aristocracy.

nasch (profile) says:

Re: Re: Re: they want them to be smart on crime.

What I find sometimes despair about is the current willingness of political leaders and government professionals to ascribe magical powers to computers.

Many of them don’t have the slightest idea how computers work, and they do seem to operate by magic to them. It’s not so surprising then that their understanding of what computers are and are not capable of is also unmoored from reality.

Anonymous Coward says:

police officers on the scene of an unfolding emergency must sit and wait for identifying information, rather than use discretion and judgment to get control of a possibly deadly event, lest the prevention of a homicide violate the Constitution.

Riiiight. They actually see something going down, but don’t know a person’s name, so can’t do anything? Absurd. That’s not what the argument is. Stawman.

States and localities, many of them majority-minority, can choose within “reason” what law enforcement strategies work for them.

Lol yeah, we communities get to make those decisions. Sure. Why didn’t anyone else think of that?

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.

You have some reading to do. Seriously.

*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…"

This.

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Koby (profile) says:

Wilkinson’s argument is this: to properly police areas where crime is common, the government must be allowed to "overstep its proper role." And this side of the "two Americas" should just be willing to exchange part of their rights for greater law enforcement efficiency.

I read the argument much differently. Judges sometimes hamstring law enforcement with bad decisions. When they do, it increases crime. People with money move out of the high population areas and avoid paying the price. The people who pay the price for the mistakes of judges are the poor, and minorities.

This is why the other judges had to attack him so hard. While I’m unsure of Wilkinson’s reasoning, he did hit the other judges where it hurts: right in the consequences.

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This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re:

Judges sometimes hamstring law enforcement with bad decisions.

Yes, and for good reason: All people have civil rights. Even a serial killer still has the right to not be tortured into confessing by a police officer. If a cop can’t do their job without violating someone’s civil rights, that cop shouldn’t be a cop.

The people who pay the price for the mistakes of judges are the poor, and minorities.

And I’m sure you’re all kinds of upset about that~.

While I’m unsure of Wilkinson’s reasoning, he did hit the other judges where it hurts: right in the consequences.

And the other judges hit him back in a different place: the consequences of stripping people of their civil rights because of where they live. Or do you agree with Judge Wilkinson that people who live in “high crime” areas not only deserve, but actively desire to be stripped of their civil rights?

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:

Or do you agree with Judge Wilkinson that people who live in “high crime” areas not only deserve, but actively desire to be stripped of their civil rights?

You already know he does. Right wingers actively hate minorities because they represent some kind of imagined existential threat to their way of life, be it living in a McMansion or a trailer park. The uneducated are easily swayed to the hatemongering of the republican party.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re:

"Judges sometimes hamstring law enforcement with bad decisions"
Any examples? Only real cases please.

"When they do, it increases crime"
Again, examples please. Note, the measurement of crime is subjective at best and should be scrutinized as though it were full of errors, assumptions and bias.

Law enforcement for law enfocement’s sake is a fools errand.

Scary Devil Monastery (profile) says:

Re: Re:

"Judges sometimes hamstring law enforcement with bad decisions."

You mean to say that sometimes the principle of law gets in the way of getting the bad guy?

Yes. That’s how civilized society works where equality under the law is observed.

"When they do, it increases crime."

And that’s still by far the least bad alternative because there are no good options which allow for both perfect policing AND impartial legal principle.

nasch (profile) says:

Re: Re:

This is why the other judges had to attack him so hard.

What exactly are you saying is the other judges’ reason for attacking the dissent?

he did hit the other judges where it hurts: right in the consequences.

Yes, his position is that the ends justify the means, and that sufficient levels of crime means it’s OK for the police to bend or ignore the Constitution in order to deter or solve crime. Which is shocking for a federal judge.

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