DOJ Complaint
April 7, 2014
Richard
Hylton
San Diego CA 92129
858.444.5874 (cell)
858-484-6330 (home)
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Office of the Assistant Attorney General, Main
Washington, D.C. 20530
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Office of the Assistant Attorney General, Main
Washington, D.C. 20530
Federal Coordination and Compliance Section - NWB
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Coordination and Review Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66560
Washington, D.C. 20035-6560
Civil Rights Division
U.S. Department of Justice
P.O. Box 66560
Washington, D.C. 20035-6560
Re: The City of San
Diego, Racial Profiling
By Email to: askdoj@usdoj.gov
Dear Attorney General;
The writing of this letter was begun on February
21, 2014. Its completion was delayed as I awaited San Diego Vehicle Stop data,
for 2000-2012. It was requested under California’s public records’ act. All of that
data has been refused me.Hyperlinks should provide access to referenced documents. Please write if any fail.
The great American
statistician and philosopher Bill Parcells, expounding on winning in the NFL,
observed "You are what your record says you are." ESPN, recognizing
the indisputable nature of Parcells' comment, in 2011, created a program called
Numbers Never Lie.
The SDPD seems to
disagree with those numbers mavens, despite what its published Vehicle Stop Analysis
record and numbers say about Vehicle Stops. Thirteen
years ago, its numbers and record also said what
is excerpted below from a publication entitled An Evaluation of Racial Profiling Data
Collection and Training (by pure serendipity, Lansdowne's[1] San Jose data immediately
followed); nothing substantial, in the area of numbers, has changed for San
Diego (nor in Lansdowne’s conduct, tactics or methods.) According to San
Diego’s 2013 data; if anything, things got worse. But first the 2001 report excerpt:
San Diego
In May 2001, the San
Diego Police Department released its report for vehicle stops made in 2000. The
report found that both black and Hispanic drivers were stopped and searched at
rates disproportionately high in comparison to their driving age populations.
Comparison to Accident
Data. In seeking another reasonable proxy for drivers on the road, San Diego
compared their data to non-hit-and-run traffic accidents (assuming accidents do
not vary by race or ethnicity). These accident data varied somewhat from the
population and traffic stop rates. Still, the department cautioned against
using these traffic data because of the potential for (1) the underreporting of
accidents in immigrant communities and (2) neighborhood variations in
accidents.
Age Analysis. Because
younger drivers were stopped more often and black and Hispanic populations tend
to be younger in San Diego than the white population, the report hypothesized
that age differences might account for the stop differentials. Yet, upon
analyzing racial stops by age, the
report found that blacks and Hispanics were still overrepresented in stops in
virtually every age category.
Again;
nothing has changed with respect to San Diego’s police conduct with regard to
police practices and the denials. We have a newly-elected mayor who denies that
Racial Profiling practices, by police, exists here. His hand-picked new Chief
of Police, Zimmerman, running in lockstep
denies too[2].
Without going into time-wasting exercises, of looking at age groups and the
like, I have chosen to let San Diego’s raw
numbers speak for themselves, after aggregation, since numbers never lie.
In 2013 Blacks and
Hispanics were stopped at a rate that is a multiple of whites, like so:
Race
|
Rate Data%
|
Population %
|
Rate to Population
|
Compared to Whites
|
|||||
White
|
42.01
|
76.7
|
55.00%
|
100.00%
|
|||||
Hispanic *
|
32.32
|
32.7
|
99.00%
|
180.00%
|
|||||
Black/African American
|
9.29
|
5.6
|
166.00%
|
301.82%
|
|||||
Nat. Hawaiian and Other
|
6.6
|
0.6
|
1100.00%
|
2000.00%
|
|||||
Asian
|
5.22
|
11.6
|
45.00%
|
81.82%
|
|||||
 |
|||||||||
Concern
about Racial Profiling in San Diego is not new, its stop-results are featured
prominently in the ACLU’s amicus brief on the successful side of Brendlin v. California. However that
concern has re-emerged as the result of one not so-recent incident that has recently
cost money. The most prominent recent case is the Case of
Harrell and Robinson. It was hot on the heels of and accompanied by other
sex-based violations by SDPD officers. San Diego is so
determined to keep a lid on the Harrell and
Robinson matter that today, even after the case has been settled, it
continues to refuse to release
publicly disclosable data by claiming an ongoing investigation.
Recent
public hearings and PR campaigns disclose that complaints are, quite obviously,
not isolated incidents; instead, they demonstrate patterns and practices that
are deeply engrained in the culture of the SDPD and are doubtless the result of
ineffectual leadership[3]. From this there is no local or administrative
method for relief, especially since the city authorities are hell-bent on data
concealment, including the issuance of patently-false sworn statements regarding
it.
The Violent Crime Control and Law Enforcement
Act of 1994 act includes a provision, 42 U.S.C. Section 14141, authorizing the
Department of Justice (DOJ)—but not to me—to bring civil actions for equitable
and declaratory relief against any police agency engaged in unconstitutional
“patterns or practices.” DOJ’s Civil Rights Division has moved against state
and local law enforcement agencies engaged in a “pattern or practice” of police
abuse under 42 U.S.C. Section 14141, again relying on statistical evidence of discriminatory
enforcement patterns.
You need to do so with respect to San Diego,
irrespective of so-called DOJ
audits that may be taking place at the present time.
The Omnibus Crime Control and
Safe Streets Act of 1968, 42 U.S.C. § 3711, was enacted to “aid State and local
governments in strengthening and improving their systems of criminal justice by
providing financial and technical assistance.” State and local governments
receiving assistance are prohibited from discriminating in programs or
activities funded in whole or in part by the federal largesse. The Civil Rights
Division of DOJ is responsible for enforcing the statute, which authorizes
civil actions by the federal government, allows individuals to pursue a private
right of action, and authorizes DOJ to terminate assistance to fund recipients
found guilty of discrimination. I am partly persuaded that San Diego’s haste to
have a DOJ
Federal “Audit” of its police practices is, at least in part, motivated by
this provision of the law. Good sense dictates it. My personal sanctions were always
lighter when I disclosed my own peccadilloes.
An audit that does not use the Citation
Data[4] for several years and is cross-referenced
to DMV data, shall be farcical. I have and can demonstrate that race
and ethnic data has been fabricated or falsified by law enforcement
personnel. Doubtless; your department has seen that happen too, so data-validation,
of some sort, must be employed. Blacks are often misidentified as Whites, deliberately, for reasons that appear obvious,
at least to me.
As mentioned before, since at least
2000, the San Diego Police Department has captured Vehicle stop data that
indicates that Blacks and Hispanics have been stopped and searched at rates
that are significantly higher than Whites. And despite the clear conclusions
–or lack thereof- and statements in reports created from its data, that it
published, San Diego, through its former Chief Lansdowne, in a public meeting,
has falsely claimed that it has received the equivalent of a clean bill of
health. To San Diego, a clean bill of health is its failure to sustain
complaints of Racial Profiling that were lodged with and investigated by the
San Diego Police Department. We may have seen something similar in New Jersey,
recently.
In fact the report to which San
Diego points, in its most public announcements, comes to quite different
conclusions. As a whole, the report finds no explanation for San Diego’s
disparate stop rates, although it gropes or grasps for some, by using
speculation. This writer, upon hearing false public statements, connected with
the 2001 report, too many times, communicated with one of the writers of the
written report. His response is linked here.
As mentioned, in recent weeks, in an
apparent attempt to evade legal action or administrative sanctions, the San
Diego Police Department, through different spokespersons, has issued many
contradictory statements concerning the status of or existence of data. They
also claim that data collection
was discontinued,
due to a lack of interest. They say anything. All this is claimed despite the
issuance of multiple
instructions[5], to the officer
corps, instructing them to complete or enter traffic stop data that captures
race or ethnicity[6].
Analysis of said data, just like 2000 and 2001, likely will point to the
existence of a pattern or practice that San Diego would have to overcome by justifying
its disparate treatment of certain demographic groups. In other words, the data
that is being withheld is unlikely to be different from that which has been
disclosed. Since its conduct cannot be justified, it distracts by claiming to
embrace new technology to assist it in precisely determining the demographics[7]
(of people stopped.)
The
data exists, not only from the Vehicle Stop Database but also
in the citations database.
Indisputable is the fact that San Diego
does collect racial or ethnic data on every cited
motorist.
This data identifies the officer(s) by Badge Number; it might identify the
officer(s) by name. Since San Diego’s procedures[8] promise
rather guarantees officer anonymity (effective immunity) it rejects using data
from the citation database since that is inimical to its officer’s immunity
interests. Indeed, on page 5 of San Diego’s last Vehicle Stop Analysis, it was
reported that officers regard this information as “potentially threatening
paperwork.” So, unfettered by any prospect of being held accountable for “Whren[9]”
violations, the denial
existence denial persists, and the status quo is maintained, now
accompanied by the distraction of a Community or Neighbourhood Public
Relations campaign.
DOJ’s
reserved powers
The
conduct of San Diego implicates 18 U.S.C. §§
241, 242 that makes it is a crime for one or more persons acting under color of
law willfully to deprive or conspire to deprive another person of any right
protected by the Constitution or laws of the United States.
This law makes it unlawful for State or local law
enforcement officers to engage in a pattern or practice of conduct that
deprives persons of rights protected by the Constitution or laws of the United
States. (42 U.S.C. § 14141). The types of conduct covered by this law can
include, among other things, excessive force, discriminatory harassment, false
arrests, coercive sexual conduct, and unlawful stops, searches or arrests. In
order to be covered by this law, the misconduct must constitute a "pattern
or practice" -- it may not simply be an isolated incident. The DOJ must be
able to show in court that the agency has an unlawful policy or that the
incidents constituted a pattern of unlawful conduct. However, unlike the other
civil laws discussed below, DOJ does not have to show that discrimination has
occurred in order to prove a pattern or practice of misconduct. That hurdle is
not insurmountable with regard to San Diego. And, with respect to San Diego,
particular attention is deserved because it flouted and ignored the Department
of Justice’s advice to identify correct, train and re-train officers who
display constitutionally infirm conduct, A
Resource Guide on Racial Profiling Data Collection Systems, page 46:
Name and identification number of the
officers who initiated or participated
in the stop. One
of the most controversial aspects of stop-and-search
data collection is whether to collect the
identity of the officer making the
stop. There are several analytical
advantages to recording these data.
Adopting such an approach enables
organizations to identify potential
problem officers who may be
disproportionately stopping minorities. In
this sense, the data collection
process functions as an early warning system,
alerting management to problems
and allowing them to investigate
possible extenuating
circumstances and, if necessary, to intervene early
with counseling, training, or
some other intervention.
………………………………………………..…The
purpose of recording
the identity of the officer should be to
diagnose and remedy problems as
part of an early warning system. As New
Jersey Attorney General Farmer
stated: “It [data collection] is
definitely supposed to be part of an early
warning system that enables us
to identify a potential problem, go in and
fix it rather than waiting for
it to fester. For it to be an early warning system,
we didn’t see any way to do it
unless we had officer identification.”
Departments should consider a
procedure that requires the officer’s identity
to be recorded but uses the data
primarily for training and support.
Officers identified as engaging
in any unusual pattern of vehicle stops
would review the information
with their immediate supervisors. If this
pattern (or a similarly unusual
pattern) persists, the behavior would be
brought to the attention of the
human resources unit of the department,
and assistance/training would be
offered to the officer. If these two
steps
are followed and the officer
still behaves in a disturbing manner in trafficstops,
the matter should be dealt with
using the department’s normal
disciplinary procedures.
A pattern and practice of misconduct can be inferred from
San Diego’s data (including the concealment of it) and the department of
Justice has the power to compel production of that data, including the data
that identifies the officers. Doubtless; it has the will to bring that about.
Title VI of the
Civil Rights Act of 1964
and the "OJP Program Statute"
and the "OJP Program Statute"
Together, these laws prohibit
discrimination on the basis of race, color, national origin, sex, and religion
by State and local law enforcement agencies that receive financial assistance
from the Department of Justice. (42 U.S.C. § 2000d, et seq. and 42 U.S.C. § 3789d(c)). Since San Diego receives DOJ funds, it is prohibited
from employing customs, patterns or practices of discriminatory misconduct, i.e., treating a person
differently because of race, color, national origin, sex, or religion. I
understand that I must first exhaust my administrative remedies by filing a
complaint with DOJ if I wish to file in Federal Court under the OJP Program
Statute. I do complain.
My complaint
Accordingly
my complaint is included here. I have elected to use illustrations for the
heavy lifting. They are at the end of this communication as Exhibits 1 and 2 on
pages 10 and 11.
On
May 12, 2010, on my way to work I was sighted, scrutinized, pursued and stopped
by Emery Enriquez and Billy Andal, two San Diego Police officers. These were
men who frequented my neighourhood and who I had driven past, but never faced, over an extended period. My
registration tags were expired. Neither could see that my registration was in the
process of being renewed. Despite my providing both officers with evidence of
that fact (the Online Renewal), they impounded my vehicle, which forced me to
walk home. As a consequence I have suffered significant hardships for years. Under California Law a vehicle where
registration renewal is in process may not be seized. The California Superior
Court, County of San Diego agreed with my position; in fact it reinforced my previously
held view.
“Black/African American drivers were
over-represented in each of the major categories of searches (inventory,
incident to arrest, 4th waiver, and consent), but particularly in 4th amendment
waiver searches (see Table 18). Police in California are authorized to conduct
these types of searches of parolees and some probationers. Since 42% of
parolees in San Diego are Black/African American, the fact that 36% of 4th
waiver searches in 2001 involved Black/African American drivers would not seem
to indicate unfair or discriminatory police use of their search authority.”
This view would, by extension, allow
the stop and search of 42% of the Black driving public. Its sophistry is
offensive and indicative of intellectual laziness. It is offensive on its face,
and its lack of logic should be criminally silly. (Damn the presumption and
fact that the great majority of the blacks are guilty of nothing, other than of
being black.) Whatever it is, it is constitutionally infirm and is precisely
what the Supreme Court alluded to in Whren.
Indeed; that which San Diego trumpets as justification for its actions
undermines it under disparate treatment and or disparate impact analysis[10].
Here it is indisputable that the differences in its data values for groups are
not insubstantial and accordingly the inference of causation is unavoidable; See Stout v. Potter, 276 F.3d 1118, 1122
(9th Cir. 2002.) In fact, no responsible study supports a suggestion
or conclusion that any racial or ethnic group has more criminal tendencies than
any other. Yet the view persists, doubtless fostered by San Diego and those of
like mind. This very Justice Department noticed the above fallacy in its
observation from 2003 in A
Resource Guide on Racial Profiling Data Collection Systems, at page 11:
“In many cases, disproportionate minority
arrests for drug possession and
distribution have fueled perceptions by
police and others that race is an
appropriate factor in the decision to stop
or search an individual. However,
existing data on the productivity of
searches across racial groups
suggest that stop-and-search practices
have become a game of “search and
you will find.” Police officers who
aggressively and disproportionately
search people of color will arrest more
people of color than Whites, not because
of differences in behavior, but because
they are stopping and searching
many more people of color than Whites.
Regardless of whether the
perception that Blacks and Latinos are
more likely to be found in possession
of contraband could be empirically
verified, United States laws do
not, and should not, permit race to be
used as a basis for stopping and
searching individuals.”
The time for this conduct has passed,
long passed. Nothing persuades the powerful as effectively as the economic
prod. 42 U.S.C. Section 14141 and The Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3711 and
other Federal laws are the ideal combination for rectifying the wrongs that
have persisted in San Diego for well over 15 years. The problem in San Diego is
not ignorance, it is intransigence, and it is bigotry. I quote or paraphrase
remarks of U.S. Judge Orlando Garcia[11],
“Without a rational relation to a legitimate government purpose, city-imposed
inequality in policing can find no refuge in our United States
Constitution."
San
Diego’s derogatory nickname Mississippi
of the west is not undeserved. This year is 2014.
Sincerely;
Richard
Hylton
13166
Jane Court
San Diego CA 92129
858.444.5874 (cell)
858-484-6330 (home)
Exhibit 1. The encounter and Pursuit. Maps
from Google Earth
Exhibit 2, The Carjacking called an
impounding
[1] William
Lansdowne, Chief of Police, City of San Diego in March 2014 was Chief of
Police, City of San Jose in at least
1999-2003. A Resource Guide on Racial
Profiling Data Collection Systems, page
11. The results in Lansdowne’s San Jose track those in Lansdowne’s San Diego
for 2000-2001 and 2013; i.e., Blacks and Hispanics stopped at rates greater
than their presence in the Population, Whites less. A Resource Guide on
Racial Profiling Data Collection Systems, page 22.
[2] “Zimmerman
won’t say racial profiling is happening”. To say otherwise would do my work
for a necessary showing; and provide the DOJ with over-kill capacity.
[3][3] When this
writing began, William Lansdowne was the Police Chief of San Diego. He has since
resigned.
[4] Inspection of
data gathered from Vehicle Stop Forms and comparison to Citation data shows
that Citation data contains all of the Vehicle Stop data elements in addition
to those recommended by the DOJ.
[5] Three memoranda
written by Chief Lansdowne since 2006, reminding officers of the duty and
necessity of completing vehicle stop data.
[6] They always did
and continue to do so about 100% of the time, in the Citation database(s).
[7] Impure nonsense
and a gambit tried, without success, in San Jose in 1999. The absurdity of the
suggestion was captured by a commenter; local I believe.
MikeHall
“This notion of cameras catching the race of someone is
antiintellectual. Science doesn't recognize race. I don't know how a camera is
going to do this. If one were able to classify a person by race with a camera,
the camera would need to be able to deal with the many mixes of humanity that
exist today. This attempt at taking the issue of "race" from the
responsibility of the police and placing it in the realm of robot cameras is
only made in order to deflect the broader argument related to why the police
need this information. Absurd, and expensive.”
To allay these fears, SDPD undertook an
extensive training program to explain
to officers the purposes of the program,
the nature and extent of community
perceptions, how the data would be
analyzed, and how the
program would affect each officer. The
department chose not to include officer
identification
in the stop-and-search data collection system.
The Supreme Court itself, in Whren,
specifically noted that; “We of course agree with petitioners that the
Constitution prohibits selective enforcement of the law based on considerations
such as race.” (Whren v. United States, supra, at p. 813 [135
L.Ed.2nd at p. 98].)
Discrimination by law
enforcement officers based upon a person’s race in the providing of both
protective and non-protective services is a constitutional equal protection
violation. (Ae Ja Elliot-Park v. Manglona (9th Cir. 2010) 592
F.3rd 1003.)
[10]
San Diego targets
minorities for enhanced scrutiny then seeks to justify it by referring to
statistics; ignoring the inherent fallacy of its approach. If the first group
is examined 3 times as often as the other while both commit crimes at the same
rate, the former will be convicted and incarcerated at three times the rate of
the latter.
[11] In the case of Cleopatra De Leon
and Nicole Dimetman of Austin, who wanted Texas to recognize their 2009
marriage in Massachusetts, and Vic Holmes and Mark Phariss of Plano, who have
been together for 16 years and wish to be married in Texas.
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