7th Cir. Poised to Hear ‘Parking While Black’ Case

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By Lance J. Rogers

Nov. 29 — A black man who says the cops violated his rights when they used a suspected parking infraction in a high-crime, urban neighborhood as a pretext to swoop down on him and search his car will be making his case before the full panel of the U.S. Court of Appeals for the Seventh Circuit Nov. 30 ( United States v. Johnson, 7th Cir., No. 15-1366, en banc review granted 8/8/16).

The case has been dubbed by the media as the “parking while black” incident because of claims that the same heavy-handed tactics just wouldn’t fly in the city’s tonier, mostly white and affluent suburbs.

According to a brief filed by the lawyer representing Randy Johnson, “Few in Winnetka will ever experience a guns-drawn, Terry stop because they stopped their Teslas too close to a crosswalk.”

Corollary to ‘Driving While Black.’

Judge David F. Hamilton coined the phrase “parking while black” in his fierce dissent from the 2-1 panel decision in May, which said the stop was justified regardless of how trivial the suspected illegality ( United States v. Johnson, 823 F.3d 408 (7th Cir. 2016)).

The phenomenon of police stopping motorists for “driving while black” is well-documented, Hamilton said. But allowing police to stop and frisk minorities for suspected parking violations will carve out a corollary offense that is just as repugnant: “parking while black.”

A car stopping in front of a store to load or unload passengers isn’t suspicious and doesn’t justify the outrageous tactics used here, even if the incident did occur in a crime-ridden neighborhood, Hamilton said.

“Imagine that the police tried that approach in Milwaukee’s affluent east side,” Hamilton said. “Citizens would be up in arms, and rightly so.”

In his petition for rehearing, Johnson’s lawyer elaborated on these concerns, stressing that this was a special task force designed to look for things more serious than suspected parking infractions and that one officer admitted on the stand that part of their job was to “look for smaller infractions and hope that possibly they may lead to bigger and better things.”

‘Street Crimes.’

The government has argued in its brief—and will likely reiterate at oral argument—that the panel decision allowing Terry stops for suspected parking violations is consistent with the approach taken by other circuits.

It has long been established that officers may stop motorists when they suspect a violation of traffic laws, the government said, even if the suspected infraction is a minor one or occurs in a high-crime area where, presumably, the police have bigger fish to fry.

In this case, five officers from the Milwaukee “Street Crimes Unit” were patrolling some of the city’s toughest neighborhoods in a pair of vehicles when they noticed a car that was stopped in front of a liquor store with its engine running.

The officers later said they suspected that the vehicle might be parked too close to a crosswalk. So they swooped in, blocked the car from leaving, drew their weapons and yanked the passengers out. That’s when they saw a gun on the floor.

Keith S. Alexander, of the Department of Justice, will be arguing for the government. Joseph Bugni, of the Federal Defender Services of Wisconsin, will be arguing on behalf of Johnson.

To contact the reporter on this story: Lance J. Rogers in Washington at LRogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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