A follow-on to my post on the en banc Fourth Circuit’s sharp divisions on the Fourth Amendment’s exigent-circumstances doctrine:

In addition to joining the main dissent in United States v. Curry, Judge J. Harvie Wilkinson wrote a solo dissent in which he expressed his concerns that the “predictive policing” that enabled officers to arrive “on the scene of a live shooting at Creighton Court within thirty-five seconds of the first shots being fired …will be made all-but-impossible under the [majority’s] unduly rigid interpretation of the Fourth Amendment.” Those who will suffer most as a result, he argues, are the “disadvantaged communities” that “have otherwise suffered under outdated modes of policing that were unable to stop the worst criminal misconduct.

Wilkinson’s dissent triggered vehement responses from not one, not two, but three of his colleagues in the majority. (Or perhaps I should say four, as an additional judge joined one of the concurring opinions responding to him.)

As Wilkinson explains the concept, “predictive policing” rests on the premise that “big data and machine learning” can enable law enforcement to “affirmatively prevent crime from happening, rather than just solve it.” In particular, the “hot spot policing” variant that the city of Richmond has adopted operates by “identifying specific areas where crimes are most likely to occur, and dispatching police accordingly.”

I have never had occasion to study the merits of predictive policing (or of hot-spot policing) and offer no position on them. But I am surprised by the very hostile responses from several of Wilkinson’s colleagues.

Chief Judge Roger Gregory sarcastically comments that Wilkinson “contributes to the volumes of work gifted by others who felt obliged to bear their burden to save minority or disadvantaged communities from themselves.” Evidently we are to presume that members of these communities are unanimous in their opposition to predictive policing and that it has been inflicted on them by the city of Richmond (which, by the way, has had a black mayor for the past three-plus years).

Gregory contends that Wilkinson “insists on a Hobson’s choice for those communities: decide between their constitutional rights against unwarranted searches and seizures or forgo governmental protection that is readily afforded to other communities.” But this is a false charge in two large respects. First, Wilkinson is pointing out the consequences of what he regards—for the reasons spelled out in the main dissent that he joins—as the majority’s wrong ruling. Contrary to what Gregory suggests, he is not relying on those consequences to demonstrate that the ruling is wrong. Second, Wilkinson’s argument is that these communities “deserve the chance to give predictive policing a try” but that rulings like the majority’s will deprive them of that opportunity

Judge James Wynn argues that Wilkinson’s “reliance on sociological studies simply substitutes policy considerations for legal analysis.” To restate my first point in the preceding paragraph, Wynn misses that Wilkinson is pointing out a consequence of the majority’s ruling that he has, on legal grounds set forth in the main dissent, concluded to be mistaken.

Judge Stephanie Thacker, joined by Judge Barbara Keenan, contends that the use of predictive policing “is little more than racial profiling writ large.” But rather than offer actual evidence for this charge, she simply cites criticisms that the ACLU and others have made. As Wilkinson states in reply, “the answer is not to approve or condemn predictive policing wholesale but to look to its implementation in a given community to discern whether it is infected with odious racial assumptions that society cannot and should not tolerate.”

There is an unavoidable racial and political overlay to this debate. Wilkinson is a white conservative, whereas Gregory and Wynn are black liberals and Thacker and Keenan are white liberals. I don’t doubt that Gregory and Wynn have keen personal insights into how biased policing has harmed blacks. Wilkinson certainly doesn’t deny that reality. Indeed, on top of condemning the “deaths of George Floyd, Eric Garner, and far too many others,” he acknowledges the existence of “grave concerns about unfair police treatment of minorities” and expresses his hope that “the bonds of brotherhood may yet come to transcend the boundaries that the shameful aspects of our past have bequeathed us as to race.”