Immunity Just Barely Denied To Cop Who Claimed Driving A Beat-Up Car And Paying For Purchases Is Suspicious Behavior

from the you-'criminals'-should-try-being-less-black dept

An arrest stemming from the most specious "investigation" has resulted in the denial of qualified immunity for one officer. But just barely. The Sixth Circuit Court of Appeals was almost able to talk itself out of denying qualified immunity to any of the four officers involved. The one officer who will now have to face a jury is was the ringleader of the investigatory debacle, but he was far from the only one guilty of rights violations.

Three men searching for a store selling space heaters late at night finished their shopping trip surrounded by cops, who arrested one of them -- Christopher Bey -- for having an expired permit for the weapon he was carrying. All three men were black. Every officer involved in the stop and arrest was white. This matters, but not to the majority writing the opinion [PDF].

Three of the cops were members of the Livonia PD's Special Operations Unit (SOU). They were on the lookout for "retail crimes" in response to a rash of break-ins at cellphone stores. Sergeant Andrew McKinley -- the only officer who's still facing Bey's lawsuit -- spotted the van driven by the men and decided to start following them.

THINGS THAT ARE SUSPICIOUS TO A POLICE OFFICER: Driving in an old vehicle.

When Sergeant McKinley observed Bey’s “beat-up” minivan at the early morning hour, he started to follow it on “a hunch”; according to his training and experience, criminals often use stolen, older vehicles for retail crimes so that police cannot trace the vehicles back to them.

Ah. Of course. People who drive "beat-up" cars are criminals. So are people who drive new cars. Or rentals. People driving cars are criminals because criminals are known to drive from place to place in vehicles, based on training and experience, etc.

This store didn't have any space heaters, so the men kept looking. They went to three different stores before they found some. During this trip, their vehicle exited a northbound freeway and immediately re-entered it going south. To the expert eye of Sgt. McKinley, this was a "cleaning maneuver" meant to shake a tail. To anyone else, it would have looked like someone realizing they were heading in the wrong direction and doubling back to get to their destination.

Once they got to their final destination -- a Walmart in Canton -- they were followed inside by another plainclothes member of the SOU, Officer Megan McAteer. McAteer saw nothing suspicious, but not for a lack of trying.

McAteer told McKinley that she watched the young men separate, with one of the three going into the hunting section and looking at guns. The three then proceeded to the electronics section, where McAteer saw nothing unusual. Though at one point she might have relayed that she thought the three were contemplating a “pushout,” she never saw the three leave or attempt to leave Walmart without paying for the merchandise in the shopping cart. To the contrary, she relayed to McKinley that Bey and his friends stood in line at the cash register, “flipped[] through some [credit] cards to . . . pick a card,” and paid for the items in their shopping cart using the card.

THINGS THAT ARE SUSPICIOUS TO A POLICE OFFICER: Paying for purchases.

McKinley also argues that “the fact that the [credit card] purchase went through does not rule out fraud,” because “the cashier does not typically compare the account number on the swiped card with the one that shows up on the receipt.” It may be true in the abstract that a seemingly successful credit card transaction does not exclude all possibility of fraud. But even deferring to the officers’ experienced judgments as we must, see Arvizu, 534 U.S. at 273, McKinley’s assertion crosses into baseless speculation in these circumstances. Under the same logic, even a cash payment would not have definitively ruled out theft because the bills might have been counterfeit—so nothing Bey could have done in the store could have prevented the officers from stopping him.

The court won't let McKinley excuse himself from this lawsuit -- not if these are the only justifications he has to offer.

McKinley testified that “[c]riminals frequently use stolen old vehicles that cannot be traced to them if they flee the scene,” and points to his testimony that the paper registration on the van’s window did not appear in a records search. He likewise contends that Bey’s reversal on the interstate was “consistent with a cleaning maneuver.” But even taken together, these meager observations are not enough to constitute reasonable suspicion. The deference we owe to police officers on the ground can only stretch so far, and here McKinley had seen nothing constituting an “objective manifestation” that Bey “[wa]s, or [wa]s about to be, engaged in criminal activity.” Cortez, 449 U.S. at 417. Driving from store to store, even at 2:30 a.m. (when the stores were, after all, open to customers), in a “beat-up” minivan, would not generate reasonable suspicion to stop a suspect when that series of events culminated in a normal credit card purchase.

But the other two members of the Special Operations Unit that participated in the unconstitutional stop are free to go. That does not sit well at all with Judge Eric Clay, who says the majority's decision to let the other involved officers skate only allows officers to engage in even more biased policing.

Bey and his friends are black males. This fact alone elicited the suspicion of three undercover Livonia police officers, all of whom are white. The three officers, driving in three separate unmarked cruisers, followed Bey and his friends for an extended period of time, pursuing them across three local jurisdictions while waiting, and perhaps hoping, for the men to commit a crime. And when the men exited the Canton Walmart with the space heaters they had purchased, a Canton officer—whom the Livonia officers had summoned—stopped Bey and his friends, ordered them out of their car, and accused them of stealing the space heaters. But the police officers’ hopes of discovering criminality had failed to materialize. The only crime Bey and his friends had committed was shopping while black.

This case is about race. It is about police officers allegedly targeting, surveilling, and detaining Bey and his friends because of the color of their skin. The majority chooses to minimize this uncomfortable truth. But the majority’s failure to sufficiently acknowledge this reality neither changes, nor obfuscates, what is apparent to anyone who objectively examines the record below: the events that unfolded in the early morning hours of March 16, 2013 would never have transpired had Christopher Bey and his friends been white—or at least a jury could so find.

This is because the Fourth Amendment isn't the only thing implicated by this suspicionless surveillance and stop. There's also the Fourteenth Amendment. The Equal Protection Clause is supposed to protect against racial discrimination. The dissent says a jury could find -- given the complete lack of justification for the stop -- that the men were targeted by the SOU because they were black. Even if McKinley said he didn't know they were black until after they went into the first store, he and his team decided to follow them across three different towns until they could find a reason to stop them and search them.

By dismissing this claim against all the officers, the court makes it easier for officers like McKinley and his SOU counterparts to continue targeting minorities without fear of repercussion.

My colleagues’ analysis is not only legally and factually incorrect. It is also dangerous. By excusing Defendants’ alleged racial discrimination, the majority allows unconstitutional race based policing to continue unabated. And by removing the prospect of liability as a deterrent for police officers in all but the rarest of circumstances, the majority invites an increase in discriminatory conduct.

If you smell smoke, it's because this is fire:

I decline to adopt the majority’s skewed view of the facts. I cannot concur in the majority’s untenable legal reasoning. And I refuse to condone unconstitutional race-based policing. I therefore dissent.

No officer would admit to biased policing under oath. But the facts of the case should have prevented every officer but Sgt. McKinley from escaping the lawsuit altogether. And it certainly should have prevented every officer from receiving qualified immunity on the Fourteenth Amendment claim. But this is what the majority has decided: it's almost impossible to hold cops accountable for deciding suspicious activity is almost anything done while black.

Filed Under: 6th circuit, andrew mckinley, christopher bey, police, qualified immunity


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  • icon
    ECA (profile), 13 Jan 2020 @ 4:00pm

    DUH DUH, ta duh, Duh!!

    The Imagination is a strange things to use and abuse.

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 13 Jan 2020 @ 4:02pm

      Re: DUH DUH, ta duh, Duh!!

      DEAR officer,..
      WRITE A BOOK, it might be more believable.. wehn you have finished it, to read it then have 2-3 others read it..
      THEN figure out if its viable..

      reply to this | link to this | view in chronology ]

    • identicon
      AnonyCog, 14 Jan 2020 @ 4:47am

      Re: DUH DUH, ta duh, Duh!!

      Of course the majority of criminals are cops so they need to be protected with white privilege minority street gang status.

      reply to this | link to this | view in chronology ]

  • icon
    tom (profile), 13 Jan 2020 @ 4:39pm

    Pretty sure writing a book is suspicious behavior. You might tell someone how to do something or about something illegal.

    reply to this | link to this | view in chronology ]

  • identicon
    Whoever, 13 Jan 2020 @ 4:53pm

    Criminals breathing and old cars.

    Criminals are frequently observed to be breathing. Thus justifying the arrest of anyone breathing.

    The issue should not be whether criminals drive old vehicles, but whether people engaging in criminal behaviour drive old vehicles disproportionally.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Jan 2020 @ 5:17pm

      Re: Criminals breathing and old cars.

      while black

      reply to this | link to this | view in chronology ]

      • identicon
        Black Scarecrow, 17 Jan 2020 @ 12:04pm

        Re: Re: Criminals breathing and old cars.

        Yeah, nice strawman, whitey

        What have YOU done lately to advance this argument, other than quips at (ADL controlled Techdirt )?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Jan 2020 @ 5:21pm

      Re: Criminals breathing and old cars.

      whether people engaging in criminal behaviour drive old vehicles disproportionally.

      That... was the exact issue at hand. The officer said that in his experience people who engage in criminal behavior are more likely to drive old vehicles. That was his exact argument.

      And that answer is probably even true, at least if we base our analysis on known criminal activity. The ever present issue of law enforcement is that data based law enforcement easily becomes a self-perpetuating cycle, where more resources directed to a specific area leads to the discovery of more criminals in that area, which then becomes a data point supporting applying more resources to that area. Rinse and repeat.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Jan 2020 @ 7:40pm

        Re: Re: Criminals breathing and old cars.

        The officer said that in his experience people who engage in criminal behavior are more likely to drive old vehicles. That was his exact argument.

        No. It wasn't. Stop making stuff up.

        The officer said that in his experience people who engage in criminal behaviour are likely to drive old vehicles, but no-where does he state that criminals are more likely to drive old vehicles.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 14 Jan 2020 @ 12:08am

          Re: Re: Re: Criminals breathing and old cars.

          Then again, the criminals who drive the most expensive cars don't ever seem to get arrested.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 14 Jan 2020 @ 4:51am

            Re: Re: Re: Re: Criminals breathing and old cars.

            They get elected.

            reply to this | link to this | view in chronology ]

            • identicon
              David, 14 Jan 2020 @ 9:02am

              Re: Re: Re: Re: Re: Criminals breathing and old cars.

              No, their goons get elected. Driving pretty expensive cars, but the most expensive cars and yachts are for the top criminals paying the lawmakers to make things go their way.

              reply to this | link to this | view in chronology ]

              • icon
                Norahc (profile), 14 Jan 2020 @ 11:17am

                Re: Re: Re: Re: Re: Re: Criminals breathing and old cars.

                Might want to double check who's living in the White House at the moment.

                reply to this | link to this | view in chronology ]

                • identicon
                  David, 14 Jan 2020 @ 1:22pm

                  Re: Re: Re: Re: Re: Re: Re: Criminals breathing and old cars.

                  A preposterous idiot who burnt through the vast fortune he inherited, and after going bankrupt got paid by Russia and his construction cronies to shovel money towards them? Who do you think profits from billions for building a straightforward riskless useless structure like a wall? Who paid for the presidential campaign of a president that was so broke that he does not want his tax returns viewed and who evaded paying a lot of contractors with his various bankruptcies?

                  Trump is a goon propelled by the guys having Fox News in their pockets. He is not the one who is going to walk from crash-landing the U.S. in the largest bankruptcy in his books.

                  reply to this | link to this | view in chronology ]

    • identicon
      David, 14 Jan 2020 @ 2:37am

      Re: Criminals breathing and old cars.

      The issue should not be whether criminals drive old vehicles, but whether people engaging in criminal behaviour drive old vehicles disproportionally.

      Wrong. That's a criterion for dragnet policing where you don't mind pestering innocents.

      People engaging in criminal behavior breathe in an overwhelming proportion, but that's not a valid criterion.

      The criterion is whether old vehicles are disproportionally driven by criminals.

      If every criminal drives an old vehicle, that doesn't mean that every old vehicle is driven by a criminal. It only means new vehicles are not driven by criminals.

      And that is not exactly what policemen will claim when they decide to stop a new vehicle.

      reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 15 Jan 2020 @ 6:47pm

        Re: Re: Criminals breathing and old cars.

        Police are not exempt from arrest, and consider dragnet policing to be a viable tactic. But isn't it funny how if you applied that tactic to them, they'd scream their rights were being violated?

        Fun fact: It's all but unheard of for a police department these days to not be subject to the RICO Act, if a prosecutor cares to go after them using it. Don't believe me? Just look up how many times a cop was accused of wrongdoing, the department stated that cop was completely in compliance with department policy, only for a court to later rule he had broken the law.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Jan 2020 @ 6:40pm

    How funny brt is suddenly so sick he can’t even see his keyboard much less type on it. But that lil ole cold will clear right up next time he sees an excuse to polish a cops boot with his tongue.

    reply to this | link to this | view in chronology ]

    • icon
      Wendy Cockcroft (profile), 15 Jan 2020 @ 7:19am

      Re:

      brt is a cop. He also signs in when posting so this isn't him.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Seargent Peeper, 15 Jan 2020 @ 12:42pm

        Re: Re:

        Why do I get the impression that you are cramming your bong under your couch right now, and spraying lemon scented potpourri around your townhome ?

        I mean, free speech ONLY works when retired cops, and rat fink LEIU members like BTR and its ratfink pals patrol the perimeter of every online dialogue, right?

        reply to this | link to this | view in chronology ]

        • This comment has been flagged by the community. Click here to show it
          identicon
          Safety NOW, 15 Jan 2020 @ 1:23pm

          Re: Re: Re:

          I personally feel much more safe when cops masquerade online as actual “concerned citizens participating in democracy” rather than speech policing Naschis卍

          This way, we can clearly tell the USes from theTHEMses, whoever they are “on that day”

          reply to this | link to this | view in chronology ]

          • icon
            bhull242 (profile), 15 Jan 2020 @ 5:40pm

            Re: Re: Re: Re:

            nasch isn’t even in this thread. Why even bring him up? Also, I’d just like to point out that this is this first time anything like Nazis was brought up, so I don’t want to hear you say that they started calling you a Nazi first when you clearly threw the first stone.

            reply to this | link to this | view in chronology ]

          • identicon
            Irv Rubin, 16 Jan 2020 @ 11:03am

            Re: Re: Re: Re:

            DUDE!

            You need to approach activism® as a totally flawed construct of good peeple versus bad peeple.

            Because Establishment cock -blockers like CockCROFT (literally, a cock -chopping device by the very definition of the words cock, and croft ) and others online are frequently just controlled opposition, on.onevhand masturbating to theier cat, Mr. Snuggles, and on the other, spouting inanity (see examples above ),or actually retarded people( look at Hulls posts ), whose therapists urge them to “interact in the real world ” online.

            Democracy is that EXACT kind of disaster.

            reply to this | link to this | view in chronology ]

        • icon
          bhull242 (profile), 15 Jan 2020 @ 5:35pm

          Re: Re: Re:

          Why do I get the feeling that you read waaaay too much into Wendy’s comment, which only asserts that:

          1. brt (a semi-frequent commenter on TD with an account) consistently signs in when posting here, so it’s pretty safe to assume that this AC isn’t him, regardless of any similarities in their stances on cops.

          2. brt is a cop, so his consistently pro-cop sentiments are likely a result of his occupation, so it would be improper to characterize him as a “cop bootlicker”.

          None of this supports or defends brt, cops, or any of brt’s ideas. Why you decided to respond like that to such an innocuous comment is beyond me.

          reply to this | link to this | view in chronology ]

          • icon
            Wendy Cockcroft (profile), 16 Jan 2020 @ 3:03am

            Re: Re: Re: Re:

            Haters gonna hate.

            While I often disagree with brt's stances, I'm fairly conservative so there are times when I do agree with him. I'm not sure where he'd stand on this article's issue so it would be interesting which side he comes down on. Personally, it seems to be a cut-and-dried case of racist abuse.

            reply to this | link to this | view in chronology ]

            • identicon
              Understatement of the year, 16 Jan 2020 @ 9:51am

              Re: Re: Re: Re: Re:

              Fairly conservative translates roughly to controlled opposition i.e. cock blocking actual dissent, and placing your privilege between it, and the police state.

              police state enabler

              is more accurate in your case

              reply to this | link to this | view in chronology ]

  • identicon
    bobob, 14 Jan 2020 @ 2:37am

    Looks like shopping while black is a crime.

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 14 Jan 2020 @ 6:04am

    Being a cop is suspicious behavior

    Being a cop is suspicious behavior

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Jan 2020 @ 9:57am

    Livonia again?

    NIL was an acronym I heard with my own ears sitting in the back of a police car, on their cop radio. My car was being searched. I was pulled over basically because it was a POS car, in Livonia. This was quite some time ago, like 25 years. They let me go when they didn't find anything with a warning or two about getting something fixed on the car. Being a white kid likely didn't hurt.

    "... in Livonia" was what the last two letters meant. It was well known how racist the Livonia police were back then. I really had thought they cleaned up their act. Maybe not. Posting anon as I don't care for the idea that I my login name might be recognizable.

    reply to this | link to this | view in chronology ]

  • identicon
    Flavio D ’Month, 15 Jan 2020 @ 9:24am

    Re: The one officer who will now have to face a jury is was the ringleader

    That is the finest use of iswas that I have seen in years.

    This way, we can do away with that journalistic cannard is alleged to have been which is so retro journalistic, and cumbersome, in light of the fact that the perple know these fuckers are guilty to begin with.

    reply to this | link to this | view in chronology ]

  • identicon
    Paddy O’Rice, 15 Jan 2020 @ 11:42pm

    You are unable to grasp nuance, humor, or consensus, at any level. no doubt you have a Neanderthal unibrow too.

    And, you know nothing about anything, much less journalistic tropes and cannards.

    Why are you even here?

    Please, dont answer that. I really dont care, but like a nippy little dog at my heels, there is no clear solution as to how to get you to stop cyberstalking my posts with your View From the Aspergers Seats.

    Usually, a kick in the face, or a good whack with a hard crusted pair of Nazi Papa Underwear® works in meatsace, but, the limits of cyberspace....

    sigh

    reply to this | link to this | view in chronology ]

  • identicon
    A Stalking Gang of Cops, 16 Jan 2020 @ 9:34am

    ...hmmm.

    • perpetual suspects “stalked” across multiple jurisdictions

    • an actual gang of stalkers doing it

    • the well known, and oft repeated pre -determined outcome of “incarceration, institutionalization, or death. ”

    • law bending /breaking tactics, accompanied by bizarre police behavior, and profiling

    • actual electronics used (radios, surveillance equip, etc...

    A ROGS Bingo

    I cant help but wonder if those cleer guys being stalked were actually mocking the dirty cops by buying even more, “heat”

    reply to this | link to this | view in chronology ]


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