N.C. Chief Justice Casts Suspicion on Black Men With Their Hands Up

Bryan Xavier Johnson immediately put his hands up when the cops pulled him over.

Johnson, a Black man, was driving down Central Avenue in East Charlotte in the late-night hours of January 14, 2017, when the police pulled him over because his license plate didn’t match the vehicle he was operating.

Charlotte-Mecklenburg Police Department Officer Elliot Whitley would later testify Johnson’s very presence in a “high crime area” in the middle of the night prompted suspicion he might pose a threat.

Johnson surely knew his status as “a large Black man” — to use the phrase employed by those justices of our state supreme court who thought the cops had no right to search him — would trigger such suspicion.

Surely he knew, too, that if the cops thought he had a gun — which, to be clear, he didn’t — the encounter might end for him like it had for other Black men.

Maybe he worried he would be the next Tamir Rice, a twelve-year-old Black child playing with a toy gun in a public park whom the police executed in 2014, or Philando Castile, a Black man whom a police officer killed on Facebook Live in 2016 after Castile voluntarily told the cop who pulled him over he had a gun.

Or maybe Johnson’s thoughts turned to law enforcement violence in the Queen City itself: CMPD Officer Brentley Vinson shot and killed Keith Lamont Scott, a Black man, in September 2016 as Scott stood idle with a gun hanging from his hand by his side, threatening no one. When the cops pulled Johnson over, a mere four months had passed since Scott’s death and the large protests it spurred.

Later killings of men of color by CMPD would bear out any concerns Johnson harbored about meeting the same fate as Rice and Castile and Scott.

In September 2017, just nine months after Johnson’s encounter with the cops, CMPD Officer David Guerra shot and killed Ruben Galindo, a Latino man of color whose hands were in the air when he died. And in March 2019, CMPD Officer Wende Kerl shot and killed Danquirs Franklin, a Black man, as he complied with her orders to place a gun on the ground.

These men of color — or, in Rice’s case, a child of color — possessed guns — or, in Rice’s case, a toy gun — but threatened no one, and the cops killed them anyway.

If the police thought Johnson had a gun, he could be next, and he had to know as much.

So he did what he could to show he was unarmed: He put his hands up when the officers pulled him over.

But doing so, Officer Whitley would later testify, along with Johnson’s nervousness, his presence in a “high crime area” late at night, his alleged efforts to use his body to shield officers’ view of his car’s center console as he retrieved his vehicle registration, and his years-old criminal record, caused the officer to suspect he was armed.

So the police searched him. They didn’t find a gun or any other weapons, but they did find some drugs and charged Johnson with possession.

At trial, Johnson argued the police unconstitutionally searched him and his car and, as a result, the drugs should be excluded from evidence.

The Supreme Court of the United States first announced the constitutional standard governing such searches in Terry v. Ohio (1968).

In Terry, a Cleveland detective saw two men walk up and down a city block several times, stopping to peer into the same store window each time they passed it. The detective said he thought the men were contemplating a “stick up” and confronted them. When he did so, he patted them down to see if they were armed. The officer found a gun on Terry and arrested him for carrying a concealed weapon.

Terry challenged the pat-down as a violation of his right to be free from unreasonable searches and seizures under the Fourth Amendment.

The Court, in rejecting Terry’s argument, said such searches for weapons are constitutional so long as the police officer conducting the search has a reasonable suspicion the person being searched is armed. This reasonable suspicion must be founded on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the search.

Subsequent judicial decisions expanded this standard to allow warrantless searches of those nearby areas where a weapon may be easily reached by a suspect.

When assessing whether an officer had reasonable suspicion to justify a weapons search, courts are to look at “the totality of circumstances.”

Applying this standard, the trial court ruled Johnson’s search proper. The North Carolina Court of Appeals upheld this decision. And the North Carolina Supreme Court recently did the same.

In a 4-2 decision (with one justice recused because of his involvement in the case at the Court of Appeals), the justices affirmed that the officers possessed reasonable suspicion Johnson was armed, which, to protect their own safety, justified searching his person and the immediate vicinity of his car — turning up the drugs that resulted in Johnson’s arrest, prosecution, and conviction.

Justice Michael Morgan wrote the majority opinion holding that a combination of factors gave officers the necessary reasonable suspicion to think Johnson was armed. These included Johnson’s presence in a “high crime area” late at night, his nervousness, the officers’ perception that Johnson was attempting to use his body to shield their view inside his car, and his criminal record.

Morgan expressly disavowed that Johnson raising his hands contributed to the officers’ reasonable suspicion, removing that factor from the analysis.

Writing in dissent on behalf of herself and Justice Robin Hudson, Justice Anita Earls convincingly argued the facts cited by the majority failed to create reasonable suspicion and that the drugs should have been suppressed.

Unlike the majority, Earls confronted the encounter’s racial dynamic, suggesting the case was really about how law enforcement perceived “a large Black man” pulled over in a “high crime area” late at night. (The majority opinion completely dodged the issue of race: Morgan thought it relevant to describe Johnson’s car, but not his skin, as black.)

Earls wrote in detail about the various ways in which racism informs the work of law enforcement and people’s perceptions of law enforcement officers.

She pointed out that characterizing an area as “high crime,” in addition to being fairly meaningless, can be influenced by subconscious racist perceptions.

Earls also noted “someone who looks like Johnson — a large Black man — might be especially nervous during a traffic stop” because Black people are more likely than white people to be shot and killed by cops.

And she explained that interpreting a suspect’s body movements as suspicious “may be affected by unconscious racial biases.”

But hers was the minority view. The court endorsed as constitutional the cops’ search of Johnson and upheld his conviction.

That wasn’t good enough for Chief Justice Paul Newby, who joined the majority but also felt compelled to pen a concurring opinion expressing his view that when Black men put their hands up, that act itself can contribute to an officer’s reasonable suspicion that they are armed.

“Like other movements, which may be innocent standing alone, with the proper testimony the act of raising one’s hands can be a factor to support an officer’s reasonable suspicion,” he wrote.

Newby reiterated the courts are to consider “the totality of circumstances” when assessing whether police possessed the reasonable suspicion necessary to justify a search for weapons, and the act of raising one’s hands, he argued, could be properly considered as one such factor when officers testify such behavior was, in fact, suspicious.

In the chief justice’s world, Black men can’t win: Cops might properly interpret a Black man’s failure to raise his hands as the sort of furtive movement that could justify a summary execution, while cops might also properly interpret a Black man’s eagerness to raise his hands as grounds for thinking him armed and dangerous, which could also justify a summary execution.

To be sure, the standard Newby endorsed would theoretically apply to everyone, no matter their race. But we needn’t pretend that a white lady in Myers Park who showed the cops her hands would be viewed the same as “a large Black man” in West Charlotte who showed them his. Her actions likely would be deemed prudent and cooperative, his portentous and suspicious.

Black men would therefore disproportionately bear the brunt of the chief justice’s reasoning, no matter its facial neutrality — because too often the real reason Johnson and others are thought to be dangerous is not their displays of nervousness, or their presence in a “high crime area,” or their long-ago criminal records, or their raised hands, which function as after-the-fact rationalizations for police, prosecutors, and judges seeking to justify searches, assaults, and shootings, but, as the dissent here suggested without saying outright, their Blackness itself.