When it's this cold, it makes sense to sit in a car with the engine idling.

Photographer: Joshua Lott/Getty Images

'Parking While Black' Is Not Probable Cause for an Arrest

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Can the police detain and search you on the suspicion that your car might be parked illegally? A federal appeals court has said yes, upholding a felon-in-possession conviction for a man who was searched after Milwaukee police surrounded the parked car he was sitting in and handcuffed its four occupants -- because the car was parked within 15 feet of a crosswalk. The outraged dissenting judge said that the defendant had been stopped for “parking while black,” and insisted that the holding went beyond anything the Supreme Court ever authorized.

The decision, by the U.S. Court of Appeals for the Seventh Circuit, offers a Rashomon-like model of diverging perceptions. To read the majority opinion by Judge Frank Easterbrook, a Reagan appointee, you would think that the events were pretty unremarkable. In his telling, the case began when police “saw a car stopped within 15 feet of a crosswalk, which is unlawful” in Milwaukee unless the car is loading or unloading. One police car drew up beside the parked car and another behind. “Shining lights through the car's windows (it was after sunset), police saw a passenger in the backseat trying to hide a firearm.”

On these facts, it might not seem so worrying that the police got everybody out of the car, handcuffed them, and arrested Randy Johnson, who had the gun.

But Judge David Hamilton, appointed by Barack Obama, depicted events very differently in his dramatic dissent. It was “January 8, 2014, in a tough neighborhood in Milwaukee,” the judge wrote. “It's dark, and it's very cold, during the Polar Vortex. … There is about 8 inches of snow on the ground. The streets are quiet.” The car was parked in front of a liquor store, and the motor was running. The driver’s seat was empty.

In Hamilton's telling, the two squad cars were searching for small infractions that might “lead to bigger and better things.” The police saw where the car was parked, which meant, the judge said, that “the car might be parked illegally!” (The italics and exclamation mark are the judge’s.) The crosswalk, he noted, was “both unmarked and snow-covered.”

After blocking the idling car, the police blasted it with headlights, spotlights, and flashlights. According to Hamilton, no one noticed the firearm being hidden. Instead the officers “immediately open the car doors and remove and handcuff the passengers.”

If the two descriptions of the events in question seem extraordinarily different, the same is true of the way the two judges described the controlling law. According to Easterbrook, the seizure of the vehicle’s occupants and the search incident to their arrest fit comfortably within existing precedent.

A different Seventh Circuit case says that probable cause of a parking offense “justifies at least a brief stop.”And the Supreme Court held in 2001 that someone can be arrested and put in custody even for a violation that would give rise to only a fine.

On this basis, Easterbrook held, the occupants of an illegally parked car may be detained and searched. He added that the police didn't have to pause and see whether the car was loading or unloading. The simple fact that it was stopped in an illegal spot was sufficient probable cause.

Hamilton’s legal analysis was strikingly different. He pointed out that the Supreme Court has never held that you can be arrested and searched for a parking violation. The 2001 case that Easterbrook cited, Atwater v. Lago Vista, involved a violation of a seatbelt law. Hamilton reasoned that a moving violation is different from a parking violation, because the police can effectively enforce moving violations only if they stop the drivers who are suspected of committing them.

Hamilton added that the police hadn't even successfully established probable cause for a parking violation. The driver was in the liquor store while the car idled -- that is, the car was loading or unloading, and so under the Milwaukee law, even a ticket would have been inappropriate.

Beyond this legal analysis, Hamilton took pains to put the arrest into its context at this moment of racial tension over policing. This was a classic example of "broken tail light" policing -- except that there was no broken tail light. As Hamilton memorably put it, this wasn't an instance of “driving while black,” but one of “parking while black."

The defendants didn't raise race as an issue in the case. And as the majority noted, if the stop had been motivated by race, that would have given the driver opportunity to sue for damages, but wouldn't lead to the exclusion of evidence seized from him.

But Hamilton was getting at a much more important point, namely that there's something deeply disturbing about the idea of police seizing and searching all the occupants of the car just because the car was idling near a crosswalk on a freezing winter's night.

Eventually, the Supreme Court will have to decide whether police may arrest and search the occupants of a vehicle that is illegally parked. Here’s hoping that when they do, they remember the Fourth Amendment right of privacy better than the Seventh Circuit panel did in this case.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Philip Gray at philipgray@bloomberg.net