To paraphrase the Bard, something is rotten in the District of Columbia Court of Appeals, and the Supreme Court is starting to notice.
Since 2018, the D.C. Court of Appeals has issued controversial criminal-law decisions that have narrowed police authority, strained Fourth Amendment doctrine, and drawn criticism from judges within its own ranks. Although the Supreme Court rarely reviews cases from that court, recent interventions by the high court suggest a legitimate concern that its habit of straying from binding precedent likely requires additional scrutiny. It’s about time.
Justices Samuel Alito and Clarence Thomas were among the first to sound the alarm. Earlier this year, the Supreme Court reversed the D.C. Court of Appeals in District of Columbia v. R.W. in a pithy per curiam decision, rebuking the court for its departure from the “totality of the circumstances” approach to reasonable suspicion.
More recently, Alito, joined by Thomas, dissented from the denial of certiorari in United States v. Donte J. Carter, criticizing the court’s decision to incorporate race into Fourth Amendment seizure analysis. Together, these developments show a troubling reality: The D.C. Court of Appeals is charting its own constitutional course.
The Supreme Court’s concerns are well-founded. When a lower court repeatedly departs from Supreme Court precedent in cases involving searches, seizures, and reasonable suspicion, the court has a duty to restore consistency and reaffirm that constitutional rights mean the same thing in Washington as everywhere else.
The clearest example is the District of Columbia v. R.W. There, the trial court found reasonable suspicion, but the D.C. Court of Appeals disagreed. Instead of considering all the facts together, it discounted key evidence, including the police’s dispatch and the fact that two young men fled from the back of R.W.’s car when the police approached. The Supreme Court reversed. In a brief per curiam opinion, it warned against “reviewing facts piecemeal and without context” and reiterated that courts must examine the “whole picture.”
The significance of R.W. extends beyond one juvenile defendant. The decision exposed a recurring problem: The D.C. Court of Appeals often dissects facts individually, rejects each in isolation, and then concludes that reasonable suspicion does not exist. That methodology conflicts with decades of Supreme Court precedent.
The same pattern appeared in Mayo v. United States. Officers saw Landon Mayo make suspicious movements near his waistband, suggesting that he was hiding or moving a gun. When they approached and asked whether he had a gun, Mayo fled. Police later recovered firearms and narcotics.
Yet the D.C. Court of Appeals held that Mayo’s movements, flight, and presence in a high-crime area failed to establish reasonable suspicion. Judge Roy McLeese dissented, arguing that the majority ignored Illinois v. Wardlow, which recognized unprovoked flight as highly relevant. As Chief Justice William Rehnquist wrote, “headlong flight” is “the consummate act of evasion.” Flight does not prove guilt, but it must be weighed as part of the totality of the circumstances.
Instead, the D.C. Court of Appeals minimized factors the Supreme Court has instructed lower courts to consider. As McLeese observed, reasonable suspicion does not require every fact to point unmistakably toward criminal conduct. Innocent explanations do not eliminate suspicion when the facts, viewed together, suggest otherwise.
Then came United States v. Donte J. Carter. There, the D.C. Court of Appeals held that courts should consider a defendant’s race when determining whether a police encounter is a seizure. The court asked whether an “objective and reasonable person sharing the defendant’s generalized lived experiences arising out of their racial status” would have felt free to end the encounter. McLeese expressed uncertainty “as to whether the race of a suspect can permissibly be considered in assessing whether police conduct constitutes a seizure.”
Alito viewed that reasoning as troubling enough to warrant Supreme Court review. Joined by Thomas, he dissented from the denial of certiorari, warning that the decision raised fundamental questions about Fourth Amendment doctrine. Traditionally, seizure analysis has relied on objective standards that apply equally to all citizens. The D.C. Court of Appeals appears to be moving toward a framework that varies according to race and subjective experience.
Given the court’s holding in Students for Fair Admissions v. Harvard and in Louisiana v. Callais, which forbid the use of race in college admissions and drawing congressional districts, respectively, it is hard to imagine the court would endorse the use of race for Fourth Amendment purposes.
A POTHEAD GUN OWNER WON IN COURT. BUT DON’T LIGHT THE JOINT JUST YET
Taken individually, R.W., Mayo, and Carter might be dismissed as ordinary disagreements over difficult constitutional questions. Together, however, they reveal a court increasingly willing to depart from Supreme Court precedent. The concern is no longer speculative: the Supreme Court has already reversed the D.C. Court of Appeals once this year, and two justices have publicly warned that another decision warrants review.
The Supreme Court exists to ensure that constitutional protections are applied uniformly throughout the nation. When a lower court repeatedly charts its own course, correction becomes necessary. Alito and Thomas have recognized the problem. The reversal in R.W. confirms it. The Supreme Court should grant review in more criminal cases from the D.C. Court of Appeals, eliminate the rot, and restore the consistency the rule of law demands.
Charles “Cully” Stimson is a senior research fellow at the Heritage Foundation and the acting director of its Institute for Constitutional Government. Helen Nguyen is a member of Heritage’s Young Leaders Program.