Judge James Wynn, during his confirmation hearing in 2009. Photo: Diego M. Radzinschi/National Law Journal

Several judges on the U.S. Court of Appeals for the Fourth Circuit rebuked their colleague for claims he made about policing in a dissent published Wednesday, with some saying his arguments ignores "the details of the familiar perils of over-policing" for Black Americans and backs racist policing tactics.

The circuit on Wednesday handed down an en banc ruling affirming a district court's decision to suppress a gun and other evidence that officers with the Richmond Police Department in Virginia seized from a man, Billy Curry. The police were responding to a shooting when they stopped the man, but the court found the search was not based on exigent circumstances, which allows for warrantless searches, and was therefore unlawful.

The circuit issued the opinion as the United States faces mass calls to reform policing over the killings of George Floyd and other Black Americans while in custody of law enforcement. Global protests calling for change in the U.S. have been held in recent months and dominated headlines.

In a solo dissenting opinion Wednesday, Judge Harvie Wilkinson wrote there are "two Americas": "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."

Citing the deaths of George Floyd and Eric Garner, Wilkinson wrote those deaths and others "are crimes not only against law but against humanity," adding that he respects the majority opinion for "being sensitive to" the "grave concerns about unfair police treatment of minorities."

Wilkinson argued that law enforcement are also at risk. And he said the court's ruling would prevent officers from using "predictive policing"—a policing tool where data is used to determine areas with high crime rates. He said that could put police in danger, as it may be unsafe for them to be in some of those communities.

"It is hard to see how this innovation 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," Wilkinson wrote.

"It is true that the police have made more than their share of mistakes and that the sad legacy of racism and mistrust hovers today over police-citizen interactions," Wilkinson wrote, including a citation to James Baldwin's "A Report From Occupied Territory." "It is true that brutal incidents continue to inflict upon our fellow citizens immeasurable hurt and pain. But it is also true that stereotyping, so long an instrument of racial injustice, can be unfair to countless individual officers as well. And it is further true that, for the future, law enforcement for all its faults will remain one of the few protections and last lifelines a fragile community retains against physical harm and mental despair."

In several concurring opinions, fellow judges wrote separately to dispute Wilkinson's arguments. Chief Judge Roger Gregory wrote that when he began reading the dissent, he "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," Gregory, who is African American, wrote. "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."

Gregory wrote his colleague "chooses to focus largely on one dimension of this paradox, ignoring the details of the familiar perils of over-policing" and "mitigates the concerns of some that any encounter with an officer could turn fatal."

"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," the chief judge wrote. "Permitting unconstitutional governmental intrusions into these communities in the name of protecting them presents a false dichotomy."

Gregory said Wilkinson's opinion created 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."

Gregory also noted that video of the incident at the center of the case shows Curry and others pointing police toward the potential shooter, but officers did not follow their guidance.

"Nothing in the majority opinion prevents the police from using, in good faith with constitutional principles, smart policies to identify where crimes may occur and accordingly dispatching officers to those neighborhoods. But it is how they, upon arrival, engage with the people in those neighborhoods that is important here," the chief judge wrote.

In another concurring opinion, Judge James Wynn took issue with Wilkinson's use of "statistical inferences derived from social science studies on predictive policing" to conclude "that it may be appropriate to trade more complete information about criminal wrongdoing for faster responses by police in high-crime areas." 

"That reliance is in tension with the Supreme Court's expressed reluctance to use sociological studies and statistical inferences—even those with a more straightforward scientific or mathematical basis than is present here—in deciding constitutional issues," Wynn wrote.

He also took issue with Wilkinson's argument that "high crime area" can't be used to excuse 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.'" 

"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 trade-off: 'faster responses for fuller information,'" Wynn continued. "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.'" 

And another dissent, authored by Judge Stephanie Thacker and joined by Judge Barbara Keenan, was written only to counter Wilkinson and described him as writing "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,'" Thacker wrote. "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."

Thacker and Keenan argued that predictive policing is not a perfect science, and the data used in creating algorithms can also lead to biased policing: "Predictive policing is merely a covert effort to attempt to justify racial profiling. Over time, predictive policing has been shown to be, at best, of questionable effectiveness, and at worst, deeply flawed and infused with racial bias."

"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,'" Thacker wrote. "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," the judge continued. "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."