Judge lets convicted felon beat gun charge based on unsupported "selective enforcement" defense

Liberal lack of seriousness about gun crime on display once again

District Judge John A. Gibney Jr. begins one of the worst judicial opinions I’ve read in recent years this way: “Black drivers have a problem in Richmond, Virginia. Richmond Police Department officers stop Black drivers five times more frequently than white drivers.” (Throughout his opinion, the judge uses the upper case for blacks and the lower case for whites, even when this involves editing statements he quotes.)

Before I turn to the facts of the case in which the judge made this pronouncement, I’d like to say this: Blacks in Richmond, Virginia have a bigger problem than police stops. They are eight times more likely than whites to die in a homicide. And according to FBI data, the overwhelming majority of blacks who die by homicide are killed by blacks.

This makes Judge Gibney’s decision particularly disturbing. Not only is his reasoning deficient, as we will see, but the result of it — the freeing of a convicted felon who was indicted for possessing a firearm and ammunition under a theory available to any black defendant in his city pulled over by the police — will undermine efforts to reduce homicides and other crimes in Richmond.

The case involved convicted felon Keith Rodney Moore. Richmond police officers pulled him over. He left his car and fled. Before he was caught, officers found a gun and ammunition in the vehicle.

According to this report, the Richmond Police Department says there was probable cause for the traffic stop. Officers were investigating a fraudulent 30-day registration tag that was being used illegally. The department states that “this fraudulent tag [had] led to two traffic stops that same night prior to the officers [who stopped Moore] observing the same tag on the vehicle [he] was operating.”

Moore challenged his indictment. He claimed it should be dismissed because he was the victim of “selective enforcement.”

As far as I can tell from Judge Gibney’s opinion, the only evidence Moore presented to support his claim came from reports by two experts. The first is an assistant professor at Virginia Commonwealth who claimed expertise in “statistics and methodology, race and gender, as well as the criminal legal system.”

His report, which contained errors he later had to correct, found that black drivers were 5.13 times more likely to be stopped by police than white drivers. Applying a basic statistical test, he concluded that this disparity is statistically significant and therefore demonstrates a correlation between being black and being stopped. However, he stipulated that his statistical evidence did not show causation.

The other expert is an assistant professor of history at Old Dominion University. He specializes in “race and politics in the 20th century. . .specifically in Richmond.”

This junior faculty member stated that Richmond has a history of segregation and bigotry. The history he cited extends back to the 19th century and stops roughly 40 years ago.

This expert opined that “the tide of history” explains why blacks tend to live in “segregated” neighborhoods in Richmond. He acknowledged that these neighborhoods have been plagued by crime, but blamed this reality on blacks having been “segregated, confined, and given an inferior education that doesn’t allow them to compete in a traditional economy like everyone else.”

How blaming black crime on whites has any bearing on the police stop of Moore is unclear — other than as an appeal to the white guilt of Judge Gibney. That Gibney dropped this portion of the expert’s testimony into his opinion suggests that defense counsel knew their judge.

Based solely on this evidence, which is available to any black pulled over by the police in Richmond, the judge concluded that the stop of Moore was the product of “selective enforcement.” He therefore dismissed the indictment.

The judge said that to establish his selective enforcement defense, Moore had to show both discriminatory effect and discriminatory intent. The judge found discriminatory effect based on the statistics. He also found that the statistics plus evidence of Richmond’s historical discrimination against blacks establish discriminatory intent.

In my view, there are problems with finding discriminatory effect from the mere fact that, in Richmond, black drivers are pulled over much more often than white drivers. The comparison seems too crude. It may be that black drivers are far more prone to exhibit good cause for being pulled over — e.g., dubious license plates (as in this case, allegedly), erratic driving, and headlight or taillight violations.

Moreover, the analysis of Moore’s expert shows that, in addition to being five times more likely to be pulled over in Richmond, those blacks who are pulled over are more than 12 times more likely to be arrested as the result of a stop. Absent evidence that arrests are discriminatory (such as a high rate of dismissals in cases where blacks are arrested), these numbers suggest that, if anything, blacks are being pulled over less often in relation to whites than they should be.

However, the main problem with the court’s opinion is its finding of discriminatory purpose. Here, I should distinguish between (1) evidence that Moore himself was pulled over for a discriminatory purpose and (2) evidence that the tendency of Richmond cops to pull over blacks more often than whites is the result of a discriminatory purpose.

Despite its centrality to the case, Judge Gibney’s discussion of discriminatory purpose is cursory. However, he appears to focus only on the second issue.

In my view, that’s the wrong issue. Even if Richmond cops pull over many drivers because they are black, Moore shouldn’t be turned loose unless he was stopped because he is black.

General statistics can be used as evidence of intentional discrimination against an individual. I used to invoke such evidence for that purpose in employment discrimination cases and, later in my career, defend against such evidence used for that purpose.

But general statistics alone can never establish intentional discrimination against an individual. There has to be more. And presenting evidence discrimination decades ago adds nothing to the equation.

In this case, there is nothing more to add. The judge acknowledged that nothing that happened during the stop evinced racial animus or a discriminatory purpose.

Moreover, the Richmond Police Department says the stop of Moore was based on concern that he was using a fraudulent license plate. Judge Gibney’s opinion doesn’t mention this defense of the officers’ stop. Was it not presented to him?

But even if the judge is correct in framing the purpose issue in terms of whether the Richmond police department as a whole pulls over so many black drivers for a discriminatory purpose, the evidence falls short of establishing this. Moore’s expert admitted that showing a correlation between being black and being stopped doesn’t mean the cause is a discriminatory purpose. Neither does a showing that, many decades ago, Richmond used discriminatory policies for the purpose of making things hard for blacks.

Moore presented no other evidence (at least none the judge cites). Thus, he failed to show that discriminatory intent underlies the racial disparity in police stops.

Throughout his opinion, Judge Gibney frets that evidence which, in normal circumstances, must be presented to prove discrimination is too hard to come by in the context of police stops. By contrast, he seems unconcerned that under his decision, a police stop of a black driver can never be upheld in the face of the expert testimony he relies on.

The solution he seems to envisage is for the Richmond police to adhere to racial quotas when it comes to traffic stops. Then, by his reckoning, black drivers in Richmond drivers won’t “have a problem.”

However, given the disproportionate extent to which blacks commit crimes, including violent ones, such a regime would impair public safety. Then, blacks in Richmond will have a bigger problem.

Gibney glibly dismisses this possibility. He states: “No one testified that modern criminology demonstrates that picking on motorists somehow makes cities safer.” Thus, in a classic example of question-begging, the judge assumes that Richmond police officers are “picking on motorists,” rather than trying in good faith to reduce crime.

In any event, no testimony should be required to show that stopping and arresting felons like Moore who are illegally carrying guns while they drive makes cities safer. By the same token, releasing them based on unsubstantiated claims that they are victims of race discrimination makes cities less safe.

As I wrote here, “if liberals are serious about curbing gun violence in America, they should not be erecting specious barriers to prosecuting cases of unlawfully carrying a concealed weapon.” But unfortunately, “liberals are not serious about curbing gun violence and crime generally if it means — as it certainly does — punishing blacks for their violations of the criminal law.”