SJC to consider police use of ‘gang member’ designation

AMID GROWING NATIONAL AWARENESS of the problems of racially biased policing, the Supreme Judicial Court will have a chance to weigh in on a tactic that is increasingly drawing scrutiny: the designation of someone as a gang member. The police say they use their knowledge of gangs to crack down on gang-related crime. But critics of police practices say the methods law enforcement uses to designate someone as a gang member are racially biased, and the designation then leads to aggressive over-policing, often of young men of color. 

Katharine Naples-Mitchell, of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, said gang membership “becomes a distorting lens through which all other facts are interpreted.”  

The SJC on Monday will hear arguments in a case stemming from a traffic stop in New Bedford, which has potentially broad implications for how police can use gang affiliation in making decisions about how to treat someone. 

The case, Commonwealth vs. Zahkuan J. Bailey-Sweeting, stems from a New Bedford resident’s arrest in February 2018 for carrying a large capacity gun and feeding device without a license. Bailey-Sweeting, who was 18 years old at the time, was arrested after a routine traffic stop.  

The officers said the aggressive behavior was uncharacteristic of Paris, and they believed Paris was trying to distract them from something happening inside the car – like a passenger trying to hide a firearm. When they looked inside the car, they identified three people: a female driver, Bailey-Sweeting, and Carlos Cortes. The detectives had recently been told by the Boston police that Cortes appeared in a video on social media displaying a firearm and referencing a Fall River gang. One of the detectives said he knew Bailey-Sweeting to be a member of the United Front and the Bloods gangs, and they knew Bailey-Sweeting had been charged with a firearms offense as a juvenile. 

Both Cortes and Bailey-Sweeting were sitting quietly in the car. But because of suspicions raised by Paris’ behavior and because of what the police knew about Cortes and Bailey-Sweeting, the officers told the men to leave the car and patted them down, at which point they found a gun on Bailey-Sweeting and arrested him. 

Under the law, the police can only frisk someone if they have reasonable suspicion the person is armed and dangerous. 

Bailey-Sweeting argues in a court brief that the police’s decision to frisk him based on a “hunch” that Paris’ behavior was an attempt to distract from something happening inside the car was unlawful. His attorney, Elaine Fronhofer, writes that Bailey-Sweeting was simply sitting quietly in the backseat with no indication of any criminal activity. 

She argues that the police gave too much weight to the fact that Bailey-Sweeting and Cortes were gang members.  

The brief questions the way the police deem someone a gang member, arguing that data “strongly indicates that the gang categorization process is highly discretionary, subjective, unreliable and racially biased.” The New Bedford police, Fronhofer writes, provided no information during the trial as to why they characterized Paris and Cortes as gang members – the judge simply accepted officers’ assertions that they were gang members. A detective with the gang unit testified that Bailey-Sweeting got that characterization by appearing in pictures with other Blood gang members, wearing a red bandana, and making hand gestures associated with Bloods. There was no evidence he committed any gang-related crimes.  

The brief argues that the gang characterization process is racially biased. In New Bedford, data show the police are 27 times more likely to characterize a black resident as a gang member than a white resident. Letting the police create a “reasonable suspicion” to frisk someone because they are a suspected gang member “will exacerbate the existing racial disparity in our criminal justice system,” Fronhofer writes. 

In this case, it was Paris’s aggressive behavior – which was uncharacteristic of how he behaved in previous police encounters – that led to the officers’ concern that he was trying to draw attention away from the car. The two passengers’ history with firearms offenses and their gang memberships – along with the fact that the officers were outnumbered – was enough for the officers to reasonably infer that someone in the car might have a gun, Stern wrote, even though Bailey-Sweeting did not behave suspiciously. 

The case has drawn the attention of a coalition of defense attorneys and racial justice and criminal justice reform organizations, with activists hoping the court will limit police use of gang affiliations. The Committee for Public Counsel Services, the Charles Hamilton Houston Institute for Race and Justice, the New England Innocence Project, the ACLU, Lawyers for Civil Rights, and others filed a brief in support of Bailey-Sweeting. 

In their brief, the groups argue that having the police name someone as a gang member in Massachusetts carries “devastating consequences,” since the police will search a suspected gang member without establishing reasonable suspicion. “This cannot pass constitutional muster, and this case exemplifies why: because he had been labeled a gang member, a young Black man could not sit in the backseat of a car during a traffic stop without suffering the indignity of the police invasively touching his body,” the advocacy groups wrote in their brief. “Because Black people are disproportionately subject to gang designations, they live under a cloud of baseless police suspicion.”  

The advocates suggest that Paris’s aggressive behavior might have had a different motivation than the one police ascribed to it: Perhaps he was simply tired of being repeatedly harassed by the police. 

The advocates say the criteria the police use to assign “gang membership” are unreliable and can include things like clothing color, social associations, and whether a family member has been murdered. Naples-Mitchell said the criteria also vary from city to city, illustrating how subjective they are. 

Radha Natarajan of the New England Innocence Project said the level of discretion the police have in deeming someone a gang member, then targeting them for enforcement, is problematic. “They just say in court, he’s a member of a gang, that ends up being a proxy that means you can search him whenever,” Natarajan said. “In this case, Mr. Bailey-Sweeting was doing nothing. He was literally sitting in the car doing nothing.” 

Dave Rangaviz of the Committee for Public Counsel Services said gang lists have “extreme racial disparities” and are “based on completely untested, unempirical and therefore unreliable criteria for so-called gang membership.” 

Rangaviz argued that the system today is no different from policing 30 years ago, where Boston police would search on sight young black men they deemed “gang members” in Roxbury – a practice the SJC ended in 1992. That type of policing has “persisted this entire time, hiding in plain sight” he argued. “I think it’s finally time to try to put a stop to it.”