Report finds no racial profiling by Needham police

INVESTIGATORS HIRED by the town of Needham concluded “the weight of the available evidence” suggests four white police officers did not engage in racial profiling last year when they arrested a black man on suspicion of shoplifting at a CVS store, but their report nevertheless raises issues of potential bias.

The incident occurred more than a year ago on January 25, 2020, in the overwhelmingly white Boston suburb of Needham. Marvin Henry, a father of four from Boston who works as a massage therapist in Needham, purchased an iced tea and cough drops at a local CVS and picked up lunch at a local pizza store when he was stopped by four police officers as he returned to his vehicle, a Honda Odyssey minivan.

The officers were responding to a 911 call from a CVS store clerk reporting that a black man and woman were stealing items inside the store. The officers, who claimed a store clerk identified Henry as one of the shoplifters, handcuffed him, patted him down, told him to open his vehicle so they could search inside, and released him less than a half hour later after he produced a receipt for the items he purchased. He was never charged with a crime.

An internal investigation by the Needham police cleared the officers of any wrongdoing except failing to file a police report on the incident. Needham officials hired the law firm of Saul, Ewing, Arnstein & Lehr to conduct a separate investigation, which was carried out by Natashia Tidwell and Allison Burdette and released Monday night. (A full list of documents related to the case can be found here.)

The report said the pat-down search of Henry by the police officers violated department policy and “applicable constitutional principles.” The report also raised questions about the store clerk’s identification of Henry as the alleged shoplifter, which was the basis for handcuffing him and temporarily holding him. Using store video footage, the investigators said the claims of the police officers that the clerk identified Henry as the shoplifter do not hold up.

The investigators concluded that the clerk’s identification of Henry meant “that he ‘recognized’ Mr. Henry as the individual he had seen in the store,” not that he was the shoplifter. “In our view, it is unlikely that [the clerk,] a non-native English speaker, would intentionally use the word ‘identified’ as the term is colloquially used in law enforcement to mean that a witness has formally identified or ‘ID’d’ a suspect on a show-up or some other identification procedure,” the report said.

The report cleared the officers of racial profiling by noting that they were called to the store looking for black shoplifters. Henry  left the store seconds before the person now believed to be one of the actual shoplifters, so the timing gave the officers “reasonable suspicion” to stop Henry and determine whether he was involved.

“In this case, the description of a large, black man wearing a hoodie in Needham where, according to 2019 US Census data, only 2.9 percent of its population is black, could be sufficient to establish reasonable suspicion to support a stop of an individual fitting that general description,” the report said. “The description of the suspect, considered together with the geographic and temporal proximity of the reported crime and the stop (100 feet from CVS within minutes of the call) likely supports reasonable suspicion to conduct a threshold inquiry of Mr. Henry.”

While the report concluded the police acted appropriately in stopping Henry, given the circumstances, it raised questions about the officers’ handling of the threshold inquiry. “Here it appears the officers undertook great effort to confirm their suspicion about Mr. Henry but did very little to dispel suspicion even when faced with ample opportunity to do so,” the report said. “While we cannot conclude, by a preponderance of the evidence, that the officers’ decision-making was influenced by Mr. Henry’s race, implicitly or otherwise, we note that the officers appear to have ignored or given short shrift to facts that, when considered in their totality, supported Mr. Henry’s denial of any involvement in criminal activity.”

For example, the investigators noted the 911 call to which the police responded said the male suspect was wearing a grey hooded sweatshirt; Henry was not wearing a grey hooded sweatshirt. Henry’s actions also did not mesh with a shoplifter trying to elude detection – he parked on a busy street right near the CVS, he stopped to order lunch, and he had a receipt for the items he purchased. Henry also told police he worked at the nearby Elements Massage, but officers never checked that out.

“Rather than consider whether an individual would engage in a pattern of shoplifting activity within two city blocks of his workplace, [officers] theorized that Mr. Henry’s shoplifting activity was part of an ongoing scheme to embezzle petty cash from Elements,” the report said.

Lauren Sampson, a staff attorney at Lawyers for Civil Rights, which is representing Henry, said she disagreed with the report’s finding that no racial profiling occurred. Sampson said the report “and its very specific recommendations make clear what Mr. Henry and other people of color who live and work in Needham have long known: the police department is unable to police itself. Reform is necessary and it can’t wait.”

The Needham Select Board issued a statement saying it would review the recommendations in the report carefully. “Mr. Henry has expressed that this incident was a traumatic and painful one, and for that we are deeply sorry. Mr. Henry did nothing wrong. He was wrongly identified by a neighborhood business and accused of shoplifting. When he was released by police, he was informed that he was a suspect in a crime. He deserved to be notified as soon as it was determined that he was no longer a suspect,” the board statement said.

The select board also voiced it support for the Needham Police Department. “Their work is challenging and difficult. They put their lives on the line every day and confront situations most of us never will. We believe the officers on the scene used their best judgment under the circumstances. We acknowledge the Police Department’s cooperation throughout this investigation.”

John J. Schlittler, the Needham chief of police, issued a statement saying he would carefully review all of the recommendations in the report, some of which he said he has already implemented. He also said he recognized the department should have done a much better job of communicating with Henry following the incident.

“We agree that racial profiling and bias was not a factor in this incident. We believe that the officers who responded to a call for a crime in progress acted in accordance with the law based on information provided to them on scene. I support the actions of the officers that day,” Schlittler said.