By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
It was just after dinner one recent evening when 18-year-old Adrian Mack and his little brother set out for a friend's house to swap Nintendo cartridges. They were walking down Portland Avenue in the Phillips neighborhood, where they've lived for four years, when they were stopped by two officers in a squad car. "Me and my brother got to 19th and Portland," he says, "and we were stopped by police because I had a stick in my hand." He was carrying what police reports would refer to as an "approximate[ly] four-foot-long wooden stick which resemble[d] a riot baton" because the neighborhood was rough, he says.
Mack, who has no criminal record and is on his way to college this fall to study psychology, says the officers made them stand spread-eagled against the car and pat-searched them both. The search, according to Mack, produced "deodorant, a Super Nintendo game, and keys on me. On my brother they found nothing. Just a piece of paper. They threw us in the car and drove from 19th and Portland to 19th and Park and parked on the corner." Police reports would later claim that officers had to push Mack's little brother into the police car by his head--he was being uncooperative, they noted--and that neighbors had noticed the confrontation and were voicing disapproval. "Numerous people on the street corner and in houses across the street began shouting, 'racism, excessive force,'" said the report. The account continues with the officers' apparent view of area residents: "It was evident to officers that the drug dealers and crack addicts were becoming angry because of the stop."
Once the two were whisked away to a quieter location, police asked the boys for their names, ages, and address. That wasn't all, says Mack: "The cop in front of me was saying, 'I'm getting sick of you crazy ass blacks.' On the corner, there was a white family with a child playing on a bicycle. He said, 'This is the only white family I've seen in this neighborhood.' He said, 'You black ass niggers are a menace to society.'" The officers eventually released Mack's brother, handing him a citation for loitering. But Mack was taken downtown to the Hennepin County Jail and held until almost 2:00 in the morning. He wound up charged with possession of a weapon for the stick he was holding, along with vagrancy and lurking with the intent to buy or sell narcotics.
A week later, when he and his attorney showed up in court to fight the charges, there was a simple note from the prosecutor attached to the case file: The case was being dropped due to lack of evidence.
Mack lives in a Minneapolis neighborhood targeted by the police department's Operation Safe Streets program, which gives officers increased latitude in detaining and searching people in the name of fighting drugs and violent crime. As the officers who stopped Mack put it in their report: "Since the spring, officers have been directed by the Mayor's office to target this type of activity and take as much enforcement action as possible." The pat search was warranted, they noted, "because of the area that we were in." Safe Streets, which began in earnest last fall and has since been incorporated into the way each precinct goes about its everyday business, has targeted minority neighborhoods almost exclusively, raising along the way numerous charges of racism and harassment.
The principle behind Operation Safe Streets appears to have gained official approval from the U.S. Supreme Court, which ruled a few weeks ago that so-called "pretextual" stops--such as deciding someone is probably looking to buy drugs and stopping him for jaywalking--don't violate the Constitution.
But the program is coming under fire locally. A group of attorneys from the Hennepin County Public Defender's office and the nonprofit Legal Rights Center has filed a lawsuit on behalf of a Minneapolis man that amounts to the first test of the program's legality in state courts. They are arguing that Operation Safe Streets violates state and federal protections against unreasonable search and seizure along with provisions guaranteeing equal protection under the law. "It's a roving commission to stop people who these officers think are bad," says LRC attorney Joe Margulies, who has signed on to the challenge, "not because they are doing anything that justifies their stop, not because it's something that they would stop a similarly situated white person for, but because the police think they fit a profile. There is no justification for giving that kind of indiscriminate license to the police."
"From what I've been told about this Safe Streets program," says Adrian Mack, "it sounds like cops get the right to stop, question, and search you if you have a certain characteristic or attitude or if you look suspicious. If I'm young and black, I'm automatically going to be stopped and harassed by them. Me and my brother aren't the only ones."
In the wake of last year's record homicide toll in Minneapolis--97 murders, compared to 62 the year before--local politicians scrambled to make it appear they were doing something to fend off the city's apparent decline. Most of those pulling the triggers knew each other, according to the calculus of Police Chief Robert Olson. Gangs and drugs were often involved. The perpetrators tended to be black males, usually in their mid-20s. He left it to the mayor who appointed him to connect the dots. "Something's wrong and I'm going to say it," offered Sharon Sayles Belton during a press conference. "We've got a crisis in the African American community and we've got to deal with it." Her answer? Operation Safe Streets, which was supposed to "make it more risky to carry a gun in Minneapolis."
The original plan involved targeting nine neighborhoods on the north and south sides of town. The chosen areas had the highest concentrations of "shots fired" police calls. They also included 30 of the 35 highest minority-populated census tracts. Police were to spend their time patrolling the streets in Near North, Phillips, Central, and Willard-Hay, stopping motorists for minor traffic violations or being a "suspicious person" or driving a "suspicious vehicle." Then they would ask for permission to search their cars. The "zero tolerance policing" idea was based on a model already tried in Houston and New York City, where officials claimed it had helped reduce the murder rate. As Houston Police Chief Sam Nuchia describes it, the point is to make the lives of possible criminals "as unpleasant as possible." Regarding charges of racism, he had this to say: "We've warned the public that if your kid is out running around looking like a gang member and sounding like a gang member, then we're going to treat him like a gang member. So keep your kids at home where they belong and stay out of these areas if you don't have legitimate business."
Minneapolis police officers received special training--in part based on an already implemented St. Paul gun interdiction program--on search and seizure techniques, including how to say may I search your car, rather than I am going to search your car. "It gets to be a minor verbiage change," explains Deputy Chief Greg Hestness, who administered the program. "Instead of saying, 'Stop, we want to talk to you,' they need to say, 'Excuse me, can I talk to you for a while?'" Chief Olson did admit in the press that cops would be asked to "push the envelope a little bit" as far as the law went. It was a matter, he said, of "looking for little things that will lead to big things." Publicly the tactic was lauded: County Attorney Mike Freeman, famous for implementing gun buyback programs, approvingly compared Olson to Wild West lawman Wyatt Earp.
Operation Safe Streets was launched August 2 for a two-month trial run. During that time police made nearly 2,200 "contacts" that resulted in 330 arrests for various offenses and the recovery of 174 guns. While this sounded like a reasonable ratio to the city's leaders, members of the targeted communities said they felt under siege. People on the street started calling the areas where they lived "hot zones," the term soldiers in Vietnam used to describe ostensibly allied villages suspected of containing Vietcong soldiers or sympathizers.
Young men complained of being stopped time after time by police while never being charged with anything. Ed McDonald, who spends a lot of time talking to people off the street in his role as housing advocate and community outreach manager for Family & Children's Service, says people felt like they should start carrying township passes. "You have communities already under siege in different ways, like not being able to find affordable housing. And on top of that you now have police riding on top of people--police who have no clue about the people who live in these communities beyond what they see during their eight-hour work exposure to them. It's like the militia police in the townships in South Africa."
There is no question that the neighborhoods targeted by Safe Streets have crime problems. But McDonald says that giving officers more discretion in making arrests has hurt already strained police and community relations, an issue that came to the fore a few weeks ago when an 11-year-old boy and a 22-year-old man were shot and killed on the same north Minneapolis street within a week of each other. Witnesses were reluctant to cooperate with the MPD. "A lot of the young men who are randomly stopped and who have their constitutional rights violated--not a lot of that has to happen before the result is more ill will about the police department," McDonald says. "It's not to say that the intent of the program isn't a good one, just that the Operation Safe Streets program was a top-down initiative by the chief. It was a knee-jerk approach keeping with traditional police operations."
There were community meetings to discuss concerns. But if anything, discussions only served to lower the program's profile and to improve the bad manners of a few overaggressive cops. Nobody talks about Safe Streets as a discrete entity anymore; police officials concede that it's "ongoing"--that its aims and methods have become part of everyday procedure. Each precinct now decides which areas to target and which crimes to concentrate on. Hestness says the department will be receiving state funds and is using some of its "Clinton cops" money--federal aid specifically designated for putting more police on the street--to pay for officers to conduct "directed patrol" in designated areas. "As they did in Safe Streets," he says, "they can make a lot of pro-active stops." And police are still targeting a number of the same areas: Chicago and Franklin and Lake and Chicago on the south side, Broadway and Penn and Lowry and Lyndale over north.
Governor Arne Carlson has also talked the Legislature out of more than $3 million in funding for police overtime and new hires to expand the Safe Streets principle metro-wide. He's endorsed police sweep operations in which groups of officers would saturate targeted high-crime neighborhoods, "making arrests for traffic and curfew violations, loitering, truancy, and other minor offenses in an effort to find and seize guns and drugs." The idea, he said during a press conference, is to hit criminals coming from "Illinois and elsewhere.... We're going to harass them out of here, and I mean it.
"Anybody who violates the law, we're going to harass."
Just two days after Minneapolis dispatched the forces as part of Operation Safe Streets, a couple of the specially instructed officers stopped a 1981 Buick on Pillsbury Avenue South for a brake lights violation and failure to signal a turn in a timely fashion. They claimed that when they approached the car, driven by a black man named Bob Austin, they saw him "moving as if moving something on the floor of the car." While Austin contends that the officers forced the ensuing search of his car, the attending officers say Austin consented. Either way, they found cocaine and marijuana, and Austin was charged with Fifth Degree Possession of a Controlled Substance and Possession of Marijuana in a Motor Vehicle.
Austin's case is at the center of the challenge to Operation Safe Streets by attorneys from the Hennepin County Public Defenders office and the Legal Rights Center. They are arguing that the evidence taken from Austin's car should be suppressed because the search itself was illegal and discriminatory. Court documents in the case note that Safe Streets officers were encouraged to "detain selected individuals based on unspecified 'characteristics' and 'behaviors' in targeted communities of color, by using admittedly pretextual stops." Austin's attorneys are claiming that that directive, along with the use of an "untested profile," violates state and federal safeguards against unreasonable search and seizure and constitutional equal protection guarantees. "Officers... do not stop suspects at random, nor do they stop all people who have committed qualifying infractions," continues the legal argument. Nor have police "disclosed the 'characteristics' and 'behaviors' they rely upon as evidence justifying a pretextual stop.
"According to several assistant public defenders," the brief continues, "the great majority of individuals stopped by police since August 1, 1995 for petty misdemeanor offenses have been persons of color. These attorneys estimate that roughly 65 to 70 percent of their clients who have been stopped by police are people of color--a figure hugely disproportionate to the percentage of minorities in Minneapolis." Assistant Hennepin County Public Defender Sandra Babcock offers this scenario: "Imagine if the profile was of a white guy in his 40s dressed in a gray suit. Say there was a rash of burglaries in an affluent neighborhood and that was the description and they started stopping white men on their way home from work. It wouldn't happen."
"It's not irrational to target a neighborhood with high crime rates," says Joe Margulies. "But if you're a hammer, then everything you see is a nail. Safe Streets is a vehicle to harass people. They admit stopping people on minor traffic violations or because of selected behavior or characteristics. It's a way of saying they are stopping people they wouldn't otherwise stop. They don't care about the turn signal, they think the person they are stopping is a bad guy. It appears that they are stopping anyone who is young, black, and generally male, in a new car or an old beater. The profile is whatever they want it to be. That's the problem."
Babcock and the other attorneys representing Austin sought in various ways to get police department records pertaining to Safe Streets, including the racial breakdown of arrests. They say they were told by MPD officials that the information exists, but that they couldn't have it "without a court order." City Pages' requests for information were likewise denied, on the grounds that it would be too burdensome to compile.
Defense attorneys finally filed a motion for discovery in late May asking for arrest reports, the names of officers working the program, training materials, and field notes pertaining to Austin's arrest. In mid-June, the motion was almost entirely denied by Hennepin County Judge Joan Lancaster. The only documents she would order the MPD to provide were the field notes made by officers, if any, and general crime statistics from the targeted neighborhoods.
Lancaster's rationale, in part, was based on the U.S. Supreme Court's recent ruling in Michael A. Whren and James L. Brown vs. United States, which affirmed the principle of pretextual stops. That case bore a resemblance to Austin's: Two black men sat in their car at a stop sign for what officers claimed was an unusually long time and then sped off at an "unreasonable" speed without signaling. The officers--who were admittedly on patrol for drug activity, not traffic violations--caught up with the young men, searched their car, and found crack cocaine and PCP-laced marijuana. Attorneys for Whren and Brown argued that the officers simply used the traffic stop as an excuse to search the vehicle for drugs, a search they wouldn't have had probable cause to make otherwise. The court ruled that as long as the traffic stop was valid, it didn't matter what the officers' intentions were.
A lawyer in the case told the Philadelphia Inquirer afterward that the ruling "opens the door for police to do whatever they want. If you follow any motorists long enough, they'll violate a traffic law. Maybe the license plate holder conceals a number on the plate," he said, "or maybe something is hanging from a rear view mirror. And if the stop is racially motivated or for personal revenge, that's fine with the Supreme Court."
Lancaster's ruling leaves Austin's attorneys fighting an uphill battle. Lacking the MPD's own statistics, attorneys will be forced to rely largely on anecdotal evidence. The team has already gathered affidavits from seven assistant Hennepin County public defenders who say most of those stopped for minor traffic violations or for looking "suspicious" are people of color. "In the vast majority of cases I have handled where defendants were stopped by police," wrote Joseph P. Tamburino, "the reason given for the stop was a minor equipment violation or infringement of traffic rules. The following are examples of the reasons given for such stops: no rear license plate light, no taillight, brake light not working, obstructed windshield, tinted windows, and failure to signal a turn. The more minor the traffic violation that gave rise to the stop, the greater the likelihood that the person stopped is African American, American Indian, or Latino." Often, other attorneys noted, those who are stopped end up charged with something else, like driving without a license or open bottle.
It isn't the first time Minneapolis police have been cited for the race differential in their approach to law enforcement. In a 1993 article, "Is the Drug War Racist?" USA Today pointed out that drug crimes are one of the few categories of law enforcement in which police make decisions about where to concentrate their efforts as opposed to merely reacting. And since white people and black people use drugs at roughly the same rate, drug arrest figures broken down by race can be a telling index of a city's policing priorities. Minneapolis made the lead of the story: "If you are black in the USA, you are four times as likely to be arrested on drug charges as a white person. If you live in Minneapolis, you are 22 times as likely." The series proceeded to remark upon the apparent contradiction between that statistic and the city's liberal image.
"Attorneys in our offices always knew this problem existed," says Babcock. "There have always been pretextual stops. The fact that they [spelled it out as a program] has given us a vehicle to challenge the police on the way they have operated for decades. They finally put it in writing." She says she's hopeful that the state Supreme Court will offer a ruling more friendly to civil liberties than the U.S. Supreme Court's version, as it did in the matter of DWI roadblocks a few years ago. But Hestness says the MPD isn't worried about the Austin case. He maintains--despite press releases to the contrary--that his officers don't make "pretextual stops."
"We do stops based on violation of law or probable cause," he says, "and if they lead into a more serious offense, that's an added benefit. As long as we can articulate the legal standing for our actions, we're safe. We are always free to go up and talk to people. This is America. We can talk to whomever we want."