Whether the Fourth Amendment permits consideration of a suspect's race as a factor in determining whether a reasonable person would have felt seized during a consensual police encounter

No question identified. : 2 to believe that the suspect is armed and dangerous. See id. at 30-31; see also, e.g., Arizona v. Johnson, 555 U.S. 323, 326 (2009). “[A] seizure occurs if ‘in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’” Brendlin v. California, 551 U.S. 249, 255 (2007) (citation omitted). The Court has explained that “[t]his ‘reasonable person’ standard * * * ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached.” Michigan v. Chesternut, 486 U.S. 567, 574 (1988). In this case, police officers in a gun-recovery unit, who were conducting an interdiction in response to “‘an uptick in shootings and sounds of gunfire’ in the area,” encountered a group of ten black men, including respondent, on a sidewalk. App., infra, 2a-3a. One officer asked respondent “how he was ‘doing,’ to which [respondent] briefly replied, ‘how are you doing’ or ‘what’s up’ before turning away.” Id. at 4a. Respondent “lifted his shirt to show his waistband and then lowered it,” and the officer “asked, ‘[h]ley [c]lhamp, you not got nothing on you?’” Ibid. After respondent said no “and lifted his shirt again,” the officer “requested, ‘[d]o you mind hiking your pants for me real quick?’” Ibid. In the meantime, another officer had “noticed a bulge in [respondent's] groin area.” App., infra, 4a-5a. ‘When [respondent] raised his pants in response to [the first officer's] question,” the second officer “saw that the bulge was an L-shape, which he believed to be a firearm.” Id. at 5a. The second officer “subsequently frisked [respondent,] and after a brief struggle in which the other officers on the scene joined, the officers recovered a firearm hidden in [respondent’s] pants.” Ibid. 2. Respondent was charged in D.C. Superior Court with eight offenses, including possession of a firearm as a convicted felon. App., infra, 5a; Indictment 1. He moved to suppress the firearm and other evidence “on grounds that they were the result of an unreasonable seizure in violation of the Fourth Amendment.” App., infra, 5a. The trial court denied the motion, and respondent was convicted after trial and sentenced to 14 months of imprisonment. Ibid.; Am. Judgment 1. The DCCA vacated and remanded. App., infra, la-32a. The court viewed “the central question” as whether respondent had been seized for Fourth Amendment purposes before being asked “to raise his pants,” on the premise that reasonable suspicion of criminal activity did not arise until after that moment. Id. at 7a; see id. at 30a. And in addressing that question, the DCCA found that its prior decision in Dozier v. United States, 220 A.3d 933 (2019), required it to “examine the impact of [respondent’s] race” as one of the relevant factors. App., infra, 20a. 4 The DCCA’s analysis of whether a seizure had occurred accordingly relied on statistics and academic literature to conclude that “Black men, generally speaking, are especially cautious around and more likely to comply with the demands of law enforcement.” App., infra, 22a; see id. at 21la-29a. And the court determined that that respondent therefore had been unreasonably seized in violation of the Fourth Amendment because, in its view, “an objective and reasonable Black man in [respondent’s] shoes” would not have believed he was free to leave even before being asked to raise his pants, and that respondent therefore had been unreasonably seized in violation of the Fourth Amendment. Id. at 30a. Judge McLeese concurred in the judgment. App., infra, 3la32a. He observed that “the opinion for the court appears to give dispositive weight” to respondent’s race in the seizure analysis. Id. at 3la. Judge McLeese further noted that he had concurred in the judgment in Dozier, “express[ing] uncertainty as to whether the race of a suspect can permissibly be considered in assessing whether police conduct constit