The DC Court of Appeals threw out Brandon Golden’s felony gun convictions in a ruling last week that found that officers with the Metropolitan Police Department’s Gun Recovery Unit illegally stopped and searched him.

Golden was walking by himself at night on Southern Avenue near South Capitol Street SE in June 2015 when Officer John Wright pointed him out. “The guy on the right,” he said to his partner, Officer Patrick Vaillancourt. Wright stopped his police SUV in front of Golden. A second SUV pulled onto the curb, blocking Golden’s path.

“The record is silent as to why Officer [John] Wright called attention to Mr. Golden,” Associate Judge Stephen Glickman writes in the opinion. “There was no lookout and the record contains no evidence that Mr. Golden was doing anything noticeably illegal or suspicious.”

The Gun Recovery Unit is notorious for using aggressive tactics against mostly Black and Brown people in its charge of finding guns in D.C. The D.C. Police Reform Commission recently recommended MPD disband the unit unless and until MPD can show that it’s doing more good than harm. Acting Chief Robert Contee has said he will not suspend the unit and instead says he has given them a new mandate and the officers will receive new training.

Vaillancourt testified that Golden appeared “surprised” and “nervous” when the officers stopped him. He said he found it “sort of strange” that Golden had a sweatshirt tied around his waist on a warm night and said he saw a bulge on Golden’s right hip.

Golden denied that he had any weapons when asked, and Vaillancourt asked him to show the officers his waistband. That question—”show me your waistband”—is typical of people stopped by the GRU, and in this case amounted to an illegal “seizure” under the Fourth Amendment’s protection against unreasonable searches and seizures, appeals judges ruled.

With a cigar in his right hand, Golden lifted up the middle and left side of his shirt. Vaillancourt testified that he then became more concerned and suspected Golden was “trying to avoid raising up the right side.” Vaillancourt told Golden that the sweatshirt was blocking his view. Golden took it off and held it out to the officer, apparently still blocking the view of his full waistband.

Vaillancourt then got out of the vehicle, frisked Golden, and found a gun. In court, the officer explained his decision to frisk Golden: He said most right-handed people would keep a weapon on their right side, where he saw a bulge. Vaillancourt also said it was too warm for a sweatshirt and that he believed Golden was trying to conceal his right side. Those observations, along with Golden’s perceived nervousness, gave Vaillancourt enough evidence to search, the officer said. Appeals judges disagree.

“Who among us would not have been uneasy if a squad of police suddenly appeared, partially surrounded us on the street at night, and began interrogating us as a criminal suspect?” Glickman writes. “Mr. Golden’s purported nervousness might have some corroborative value if … it was linked to some objective evidence that he was carrying a firearm, but it is not.”

Carl Messineo, local defense attorney and co-founder of the Partnership for Civil Justice Fund, says the opinion reflects the “growing and nuanced understanding of the oppressive tactics of the Gun Recovery Unit.”

“The reality is the fabric of existence with many people in the city is permeated with violence and authoritative demands by the police, and in particular, the Gun Recovery Unit,” Messineo says. He estimates that only a fraction of stops by the GRU produce a gun and therefore make it into a courtroom to be adjudicated. 

“This is the tip of the iceberg,“ he says. “It really is a persistent, oppressive presence and intrusion by the Gun Recovery Unit that is a part of the fabric of existence of persons of color in Washington D.C. This opinion signals times are changing. It signals no more. It signals that these tactics are constitutionally significant, and it empowers the courts to take action.”

It’s unclear exactly how effective the Gun Recovery Unit is, but an ACLU of D.C. analysis of MPD data shows that only 1 percent of all stops in 2020 and 2.2 percent of all non-traffic stops resulted in a weapons seizure. A September 2020 Office of Police Complaints report found that the GRU and other specialized units disproportionately stopped, searched, and used force against Black people. 

The Court of Appeals did not rule on Golden’s other claims that the court violated his constitutional rights. The Superior Court judge prohibited Golden’s attorney from questioning Vaillancourt about the GRU’s logo that features a skull with a bullet in the forehead and a motto that says “Vest Up One In The Chamber.” Prosecutors also failed to disclose Officer Wright’s history of false testimony in court in another illegal stop case with facts similar to Golden’s case.

Neither MPD nor the U.S. Attorney’s Office for the District of Columbia responded to requests for comment. With his conviction vacated and the Court of Appeals ruling that the gun and ammo cannot be used as evidence, Golden awaits the prosecutor’s decision to refile charges or drop the case.

— Mitch Ryals (tips? mryals@washingtoncitypaper.com)

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• D.C.’s new walk-up vaccine sites for seniors open today. No appointments needed. [WCP] 
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By Amanda Michelle Gomez (tips? agomez@washingtoncitypaper.com)