Mediaboss Marketing

BOSTON The state's Supreme Judicial Court on Monday heard its first arguments in a case concerninga New Bedford man and the New Bedford Police Department's use of a gang list.

ZahkuanBailey-Sweeting is alleging his Fourth Amendment rights were violated during a traffic stop in February 2018 in which he was a passenger.

Police stopped a car after it unsafely changed lanes. During the stop, three New Bedford police officers from the gang unit frisked all four passengers and found Bailey-Sweeting, then 18 years old, in possession of a large capacity firearm without a license.

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

In a court brief, Elaine Fronhofer,Bailey-Sweeting's attorney, arguesNew Bedford police officers acted on a "hunch" to unlawfully search him after the front seat passenger, Raekwan Paris, beganactinguncharacteristically (the officers testifiedhe had been calm and compliant during previous stops).

Their "hunch" was thatParis, who they identified as a gang member and knew to have a previous firearm offense,was acting this way to distract them from something in the car,Fronhofer said. As a result of the officers' inferences, Bailey-Sweeting, who was sitting in the back seat quietly, was frisked, she said.

Bristol County Assistant District Attorney Shoshana Stern, who is representing the state,said a totality of factors, including the officers' identification of Bailey-Sweeting as a gang member and his three-year-oldfirearm offense as a juvenile, led them to reasonably infer he could be armed and dangerous.

When Supreme Judicial Court Justice Scott Kafker asked if the officers would have frisked Bailey-Sweeting without thegang identification and just the previous firearm offense, Stern said the gang membership was a "plus factor" among the other factors.

In her brief, she arguesgang membership alone does not provide reasonable suspicion, but is a "part of the totality of the circumstances the police confront and must assess."

Fronhofer arguesthe Appeals Court and police relied too much on this gang designation, which she said is unreliable and racially biased.

"This case marks a significant erosion of protections citizens have had in dealing with police," Fronhofer said during Monday's argument. "The Appeals Court decision, rather than putting curbs on how this gang categorization label is used, actually expands it, it really opens the gate."

She said the Appeals Court, whichruled in favor of the state, used the gang categorization of Bailey-Sweeting to "bridge any and all gaps" in the evidence needed to reach the conclusion that the officers had reasonable suspicion thathe was armed and dangerous.

While Bailey-Sweeting confirmed on arrest that he was a member of the Bloods gang,Fronhofer argues the officers had no previous evidence the defendant had ever committed any crime in relation to that gang, and that during the stop he never acted in a way that suggested he was armed or dangerous, per officer testimony.

She also arguesgang membership needs to be reliable and relevant to the case. According to court documents, the stop was made due to an unsafe lane change unrelated to gang activity as the four passengers headedto Kentucky Fried Chicken.

The New Bedford Police Department uses a point system to determine whether someone is a gang member. Criteria have different points ascribed to them but if an individual scores at least 10 points, then the department considers them a gang member.

Advocates have argued the system is subjective and arbitrary.For example, Fronhofer noted that in Boston, Bailey-Sweeting might not have earned enough points to be considereda gang member.In New Bedford, appearing in a group-related photograph earns an individual four points; in Boston, it only counts for two points.

Bailey-Sweeting previouslyreceived 10 points for appearing in a photo with a group of Bloods members, wearing a red bandana and makingBloods hand gestures, according to Fronhofer's brief.

Fronhofer in her argument also cited the recent Citizens for Juvenile Justice report, which published data last monthon the New Bedford Police Departmentgang list.

'We are the Prey' report:New Bedford over-policing Black youth, certain areas of city

Based on department data,Citizens for Juvenile Justice found Black and Hispanic men were more likely to appear on the department's ganglist.The organization calledthe department'smethods for identifying gang members subjective and criticizedthe lack of due process forindividuals to challenge their inclusion.

Being identified as a gang member can have significant repercussions including higher bails, lengthened sentences and possible deportation, advocates say, which can become especially problematic if a person is wrongfully included.

A spokesperson for the New Bedford Police Department said they do not have a policy that allows people on the list to appeal their inclusion on the list, nor do they notify people that they have been put on the list.

During the oral arguments, the justices tried to get a sense of how much Bailey-Sweeting's firearm history as a juvenile and his designation as a gang member factored into the officers' decision to frisk.

"I think we're all concerned with: where's the line?" Justice Serge Georges Jr. said. "Where is it localized to Mr. Bailey-Sweeting and what he was doing or not doing in terms of the justification for the pat frisk?"

Stern said the central issue in this case is determining what is a reasonable suspicion versus a hunch. She saidit's up to people whether or not they "buy" the officers' inference that Paris was trying to distract them from something in the car.

"But how do you make that leap?" Chief Justice Kimberly Budd said in response. "He could be trying to distract from something in the trunk, he could be trying to distract from something in the glove box... Even if Paris is acting unusual... how do you get to [Bailey-Sweeting]?"

Stern arguesthat if he was trying to distract from something in the car, it could be thepeople; regarding the people in the car, Bailey-Sweeting had a firearm history and was a gang member according to the department's criteria and officer knowledge.

Kafker asked Stern how the state should look at validation of gang membership and whether it was "good enough" in this case. Stern said it is a conversation worth having, but not necessarily in regards to this case.

Eight organizations filed a joint brief in support of Bailey-Sweeting, including Citizens for Juvenile Justice and the American Civil Liberties Union.

They argue the gang designation has "devastating consequences" and serves as a "workaround" to the reasonable suspicion needed to frisk, viewing it as a label instead of an articulable fact.

"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," their brief states.

They, like Fronhofer, argue Paris was upset and not acting "calm" in the way officers previously found him because he felt repeatedly targeted and harassed by police.

"[Bailey-Sweeting] was patfrisked based not on his own actions but those of the front-seat passenger, Raekwan Paris, whose reasonable reaction to police targeting was pathologized and criminalized," the organizations state.

According to Stern's brief and oral argument, the officers would not have removed or frisked any of the passengers if Paris had not acted that way, even though they identified Bailey-Sweeting as a gang member.

The organizations state the courts should not uncritically defer to police judgments about the significance of gang affiliations or use such affiliations to "cloud" the circumstances of a search.They urged the Supreme Judicial Court to provide clear instructions to lower courts about the weight that should be given to gang membership when considering reasonable suspicion.

Stern, on behalf of the state, is asking the court to affirm Bailey-Sweeting's conviction. Fronhofer and the many nonprofit organizations are requesting the court reverse his conviction.

The rest is here:
SJC reviewing case involving New Bedford police and department's use of gang list - SouthCoastToday.com