United States of America v. Amistad Djimon Veney

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 11, 2022 Decided August 12, 2022
No. 20-3081
UNITED STATES OF AMERICA,
APPELLEE
v.
AMISTAD DJIMON VENEY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cr-00302-1)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender. Tony Axam, Jr., Assistant
Federal Public Defender, entered an appearance.
Eric Hansford, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Chrisellen R. Kolb
and Suzanne Grealy Curt, Assistant U.S. Attorneys.
Before: WILKINS and WALKER, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WALKER.

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WALKER, Circuit Judge: Amistad Veney was convicted of
unlawfully possessing a loaded firearm. He does not dispute
that the bulge of that gun in his waistband gave an arresting
officer the reasonable suspicion required to conduct a stop-and-
frisk that uncovered the gun. But Veney argues he submitted
to an illegal show of authority several seconds before then,
when the officer did not yet have a close view of the bulge in
Veney’s waistband.
We disagree: Veney did not submit to a show of authority.
* * *
On an afternoon in September 2019, Officer Nelson Torres
and three other police officers were on patrol in an unmarked
car. When they came to the parking lot of an apartment
complex in a high-crime area, Officer Torres observed
Amistad Veney and another man exchange objects. After
Veney looked towards the officers and walked in the opposite
direction, three of the officers got out of their car, including
Officer Torres, and walked towards Veney. Officer Torres was
wearing a tactical vest that identified him as a police officer.
At a fence corner, Veney stopped, and Officer Torres
asked him, “Big man, you got nothing on you, man?” United
States v. Veney, 444 F. Supp. 3d 56, 60 (D.D.C. 2020).
Veney replied, “I ain’t got shit on me.” Id.
“You mind turning around for me?” asked Officer Torres.
Id.

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“I’m not, man,” said Veney, as he began to walk down the
sidewalk, away from Officer Torres. “Nah, I’m going to walk
off.” Id.
According to Veney, Officer Torres then made a show of
authority: “No,” said Officer Torres, as he trailed behind
Veney. “I just want to make sure you don’t got no guns.” Id.
Veney continued down the sidewalk. At the same time, he
swiveled his upper body back toward Officer Torres and lifted
his arms away from his body. “I don’t got shit on me,” said
Veney. Id.
According to Veney, by then, he had submitted to a show
of authority and had thereby been seized.
After that, Officer Torres caught up with Veney and saw a
bulge in his waistband. When Officer Torres asked what the
bulge was, Veney said it was a belt. Officer Torres put his hand
on Veney’s chest and said, “Ok, hold on, hold on.” Id.
While another officer restrained Veney’s arms, Officer
Torres patted down the area around Veney’s waistband. As he
did so, he felt the outline of a gun. And upon lifting Veney’s
shirt, he found a loaded, 9mm semi-automatic handgun.
Veney was arrested and indicted for Unlawful Possession
of a Firearm and Ammunition by a Person Convicted of a
Crime Punishable by Imprisonment for a Term Exceeding One
Year. See 18 U.S.C. § 922(g)(1). He moved to suppress the
gun and ammunition, arguing that it was the fruit of an illegal
seizure that occurred when he submitted to a show of authority
by Officer Torres.

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After hearing from Officer Torres and reviewing the
evidence submitted by the parties, which included body-cam
footage, the district court denied Veney’s motion. At a bench
trial, it found Veney guilty and sentenced him to one year and
three months in prison, followed by two years of supervised
release.
Veney appeals, and we affirm.
* * *
“For purposes of the Fourth Amendment a seizure occurs
when physical force is used to restrain movement or when a
person submits to an officer’s show of authority.” United
States v. Brodie, 742 F.3d 1058, 1061 (D.C. Cir. 2014) (cleaned
up). “A show of authority sufficient to constitute a seizure
occurs where the police conduct would have communicated to
a reasonable person that he was not at liberty to ignore the
police presence and go about his business, or, put another way,
where a reasonable person would have believed that he was not
free to leave.” United States v. Delaney, 955 F.3d 1077, 1081
(D.C. Cir. 2020) (cleaned up). Veney bears the burden of
showing his submission to a show of authority, and we decide
de novo whether he has met that burden. Id.
The government does not appeal the district court’s
finding that Officer Torres made a show of authority through
his answer — “No. I just want to make sure you don’t got no
guns.” — to Veney’s declaration that he was “going to walk
off.” Veney, 444 F. Supp. 3d at 60, 62-63. So the question is
whether Veney submitted when he responded to that statement
by Officer Torres.
In Veney’s own description of his response, he “continued
moving forward but turned his head to face and respond to

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Officer Torres, swiveled his body towards him, brought his
arms out away from his body, and said ‘I don’t got shit on me.’”
Appellant Opening Br. at 14-15.
Veney has not described submission to a show of
authority. Because Officer Torres’s statement (“No.”)
followed Veney’s declaration that he was “going to walk off,”
Veney could not submit while he “continued moving forward.”
One cannot submit to an order not to “walk off” by walking
off.
Veney argues that he was not actually walking away from
Officer Torres when he “continued moving forward.” That
might make sense if Officer Torres had been in front of Veney.
Officer Torres was, however, several steps behind him. So
when Veney “continued moving forward,” Veney was walking
away.
Veney says he slowed his pace before Officer Torres
blocked his path. After reviewing video footage, the district
court found otherwise. But we need not resolve this factual
dispute. When a moviegoer is leaving a theater, he does not
stop leaving the theater simply because he slows the pace of
his exit.1
1 To be clear, we review the district court’s factual findings for clear
error. United States v. Mabry, 997 F.3d 1239, 1243 (D.C. Cir. 2021).
But we need not resolve any factual disputes in this case because
even assuming the truth of the historical facts alleged by
Veney — such as his claim that he slowed his pace — his alleged
facts do not demonstrate submission to a show of authority. And we
decline to find clear error when the video evidence appears
consistent with the district court’s factual findings. See United States
v. Garcia-Garcia, 957 F.3d 887, 896 (8th Cir. 2020).

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Finally, Veney claims that when a police officer orders a
suspect to turn around, the suspect submits when he turns
around. But there is more to the story here. When Veney
declared an intent to “walk away,” Officer Torres replied,
“No.” He thereby left no doubt that in addition to wanting
Veney to turn around — which he had requested earlier — he
also wanted Veney not to walk away. And in that context, a
subsequent statement like “I just want to make sure you don’t
got no guns” is best understood as explaining why an officer
wants a suspect to halt, not as inviting a suspect to momentarily
swivel his body while he continues to walk away.
Moreover, even when a show of authority does not
expressly prohibit flight, it can do so implicitly. For example,
the police likely do not want someone to run away with his
hands in the air after they yell, “Put your hands up!” Perhaps
that is why Veney has failed to identify any circuit case in
which a suspect submitted to a show of authority while walking
away from the police.2
2 Cf. Brendlin v. California, 551 U.S. 249, 262 (2007) (submission
when a passenger stayed inside a car pulled over by the police);
Mabry, 997 F.3d at 1246 (in response to requests to look inside a
suspect’s bag, the suspect submitted to authority by “not leaving
though he clearly wanted to” (emphasis added)); Delaney, 955 F.3d
at 1085 (submission when the driver stayed inside a parked car in a
parking lot); United States v. Castle, 825 F.3d 625, 634 (D.C. Cir.
2016) (submission to an officer’s show of authority by a suspect
walking toward another officer and “not trying to go anywhere”
(cleaned up) (emphasis added)); Brodie, 742 F.3d at 1061
(submission when a pedestrian stopped walking and put his hands on
a nearby car in response to a police order to put his hands on the car).

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* * *
At no point did Veney voluntarily submit to a show of
authority. He therefore was not seized until Officer Torres
blocked his path. By then, Officer Torres could see the bulge
of Veney’s gun in his waistband, and Veney does not dispute
that the bulge gave Officer Torres the reasonable suspicion
required for the stop and frisk that followed. See Terry v. Ohio,
392 U.S. 1, 27 (1968).
We therefore affirm the judgment of the district court.
So ordered.

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