The en banc Fourth Circuit on Thursday, in opinions invoking George Floyd, Eric Gardner, the Rev. Martin Luther King Jr. and others, held that Richmond police violated the rights of an African-American man when he was stopped and searched in 2017. On the night of Sept. 8, 2017, police responded to a scene where they heard gunshots (see also newspaper article, available here). No one was shot but they saw Mr. Curry and a half-dozen others walking away. Others in the area were not told to stop. Police told the group of black men to stop, shined a flashlight on them, and told them to raise their hands and lift their shirts. When Mr. Curry declined the request to fully lift his shirt, an officer restrained and searched him. A struggle ensued, and the officer testified that a gun fell from Mr. Curry's clothes, which meant he illegally possessed the firearm.
Mr. Curry's attorney moved to have the evidence suppressed and the District Court agreed that the evidence was obtained in violation of Curry’s Fourth Amendment rights. The government appealed and the nine-judge majority Court of Appeals affirmed the District Court. The ruling produced four concurring opinions, while six judges dissented in two opinions.
Chief Judge Roger Gregory wrote a concurring opinion which responded directly to Judge Wilkinson's dissent:
“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."
Citing Frederick Douglass and James Baldwin, Gregory noted the "long history of black and brown communities feeling unsafe in police presence." Alluding to recent, high-profile police violence toward Black Americans, Judge Gregory continued:
"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."