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.
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