By Jonathan Stempel
(Reuters) - A divided federal appeals court on Friday upheld the conviction of a man found with an illegal gun while sitting in a car parked too close to a Milwaukee crosswalk, prompting the dissenting judges to accuse the majority of letting police improperly stop people for "parking while black."
By a 5-3 vote, the 7th U.S. Circuit Court of Appeals in Chicago said police acted properly by seizing occupants of a car idling at night outside a liquor store in a high-crime area within 15 feet of a crosswalk, which was illegal in Milwaukee, and then discovering the defendant Randy Johnson's gun.
Circuit Judge Frank Easterbrook wrote for the majority that the Jan. 8, 2014 stop was constitutional under the Fourth Amendment if police had probable cause to believe there had been a parking violation.
He said this was true even though police had bathed the car in bright lights, suggesting that occupants were not free to drive away.
Johnson entered a conditional guilty plea and was sentenced to 46 months prison, pending his appeal of the gun seizure.
A federal public defender representing Johnson had no immediate comment on the decision, which upheld a 2-1 ruling by a 7th Circuit panel in May 2016.
Circuit Judge David Hamilton, who dissented from that ruling, wrote for Friday's dissenters that the majority wrongly extended decisions allowing pretextual stops based on moving violations, such as speeding, to parking violations.
"The doctrinal evolution has enabled stops for what is often called 'driving while black,'" Hamilton wrote. "The majority errs by taking the further step of enabling seizures that can be used for 'parking while black.'"
A spokesman for U.S. Attorney Gregory Haanstad in Milwaukee, whose office prosecuted Johnson, did not immediately respond to requests for comment.
Hamilton, an appointee of former President Barack Obama, said Johnson had not made race an issue in the case, but that the police's "heavy-handed" tactics would not be tolerated in more affluent neighborhoods.
"What made the officers decide so fast to swoop in to seize this car?" he wrote. "On this record, the only explanation is the neighborhood, and the correlation with race is obvious."
Easterbrook, an appointee of former President Ronald Reagan, said his decision did not address whether and when the use of racial criteria to "select among potential targets of investigation" would require suppressing evidence.
The case is U.S. v. Johnson, 7th U.S. Circuit Court of Appeals, No. 15-1366.
(Reporting by Jonathan Stempel in New York; Editing by David Gregorio)