Date: December 5, 2018

NYPD Gang Database Can Turn Unsuspecting New Yorkers into Instant Felons

Keith Shenery was hanging out with friends in the courtyard of a Harlem public housing project when police saw him remove a small bag from his pants. When police approached him, he told them that it was “just weed.” When the officers searched him, they found a small bag of marijuana and a folding knife, a gift from his grandfather. Shenery, 21 at the time, was arrested and indicted for unlawful possession of marijuana and felony possession of a weapon — an unusually severe charge. Prosecutors asked for his bond to be set at a whopping $10,000. Shenery, they claimed, was a “known” gang member.

Shenery, who had only three nonviolent misdemeanor arrests on his record from when he was a teenager, could have been released that night on his own recognizance with a misdemeanor charge. He had no idea why prosecutors would call him a gang member and strongly denied the accusation. But as his case has dragged in court for nearly two years, prosecutors labeled him a gang member over and over — telling a judge, but providing no evidence, that he belonged to Harlem’s Cash Money Boys, “a violent narcotic sale crew based out of 1990 Lenox,” according to court files.

More than a year after his April 21, 2017, arrest, Shenery learned that prosecutors appeared to be basing their accusation on his inclusion in a database of more than 42,000 New Yorkers that the New York Police Department considers as “gang members.”

As The Intercept has reported, the NYPD’s gang database was massively expanded in recent years, even as gang-related crime dropped to historic lows. The information on the secretive list is available to prosecutors but not to those named in the database, who often learn that the police have labeled them gang members only if they are arrested and slammed with inexplicably harsh charges or excessive bond. The database has been widely criticized as arbitrary, discriminatory, and over-inclusive — with no clear process in place to discover or challenge one’s alleged gang affiliation. Like Shenery, an overwhelming majority of people in the database are young black and Latino men.

Last year, the Legal Aid Society, one of several New York organizations that have demanded greater transparency from the NYPD about the database, launched a website to help New Yorkers file public records requests to learn whether they are listed in it. So far, more than 300 people have filed such requests — but police have denied every one of them.

Shenery, who learned of the existence of the gang database after prosecutors called him a gang member in court, filed a Freedom of Information Law request last July to understand what earned him the label. Within a day, the NYPD denied his request. Shenery appealed and then sued in November after the NYPD responded that it had found “responsive records” for him but refused to turn them over.

Shenery declined to be interviewed for this article. A spokesperson for the NYPD did not respond to a series of questions by The Intercept about the gang database and Shenery’s lawsuit, but wrote in an email that the department “maintains among the nation’s most rigorous criteria for identifying an individual as being a member of a known criminal group.”

A spokesperson for the Manhattan District Attorney’s Office declined to comment on Shenery’s criminal case because it is still open, but referred to court documents in which prosecutors making the bond request cited his record, as well as previous failures to appear in court and a recommendation by the Criminal Justice Agency, an independent city agency that evaluates whether an individual is a candidate for release.

The spokesperson added that the DA’s office does not have direct access to the NYPD’s gang database and wrote that “our prosecutors would not have referenced inclusion in the NYPD’s gang database, standing alone,” and that “any reference to a defendant’s membership in a Manhattan-based gang would have been based on independent analysis from our Office, including our Office’s own independently-gathered intelligence.” Prosecutors’ claim that a defendant is a “known” gang member, the spokesperson added, is based on “information from community members and other law enforcement agencies, and our office’s own independently-gathered intelligence.”

Attorneys argue that calling someone a gang member, and providing no evidence, immediately impacts a defendant’s right to due process.

“The mere use of the label renders you guilty in the eyes of the court,” said Anthony Posada, a supervising attorney with Legal Aid’s Community Justice Unit, who is representing Shenery in his lawsuit against the NYPD. “We’re seeing people being criminalized, found guilty by association, in court, where you’re supposed to be presumed innocent until you’re proven guilty beyond a reasonable doubt. What is happening is a practice by which assistant district attorneys are relying on the gang database to label people and prejudice their cases.”

Smoking While Black

Although the NYPD has said little about how it uses the “criminal group database,” as the database is known internally, it is no secret that the department shares information about alleged gang membership with prosecutors and other law enforcement agencies. It’s also clear that designation as a gang member, even when based on questionable evidence and without that evidence being disclosed to the accused or their attorneys, can have a profound impact on one’s fate in court. While gang association by itself is not a crime, prosecutors regularly use it to bolster their cases.

That’s exactly what happened to Shenery.

Earlier this year, the Manhattan District Attorney’s Office announced that it would no longer prosecute the possession of small quantities of marijuana, calling on legislators to legalize and regulate its use and citing the lack of “moral justification for the intolerable racial disparities that underlie enforcement.” Shenery’s arrest preceded the policy change, but in a city where marijuana use was already effectively legal for most people, he fit the profile of the New Yorker most likely to be prosecuted: young, black, and from a poor neighborhood. Before the DA’s announcement, black New Yorkers were arrested for small marijuana possession at eight times the rate of white New Yorkers. In Manhattan, black residents were arrested on low-level marijuana charges at 15 times the rate of white residents.

“Gravity knives,” as prosecutors call the commonly used kind of folding knife that police found in Shenery’s pocket, have also been a controversial issue in New York City — with critics noting that criminalizing them has led to the arrest of thousands of working-class individuals, mostly people of color. While the gravity knife ban was originally intended to target dangerous switchblade-style knives, it has since been applied to even the most widely used pocketknives, common especially among manual laborers.

The DA’s spokesperson told The Intercept that the office either dismisses the cases of individuals found in possession of these knives for work purposes, if they are not re-arrested within six months, or offers them a disorderly conduct plea. But attorneys say that workers continue to be arrested and prosecuted over the knives.

While Shenery’s case highlights some of the city’s most intractable issues regarding race and policing, he would have been unlikely to receive a felony charge and an exorbitant bond had he not been identified by police as a gang member. “For almost anybody in New York, this would have been a misdemeanor arrest,” said Jane White, an attorney with Legal Aid who has been representing Shenery in his criminal case. “They don’t do this to most defendants, but they do it when they want to slam somebody, when there’s information that they want to get from somebody, or when they think somebody’s a so-called person of interest.”

In its response to Shenery’s request for records, the NYPD claimed that it could not disclose any records alleging his gang affiliation without revealing “non-routine” investigative techniques. But Legal Aid attorneys shot back that the techniques used by the NYPD to determine who is a gang member have already been discussed publicly, and that they are deeply problematic.

At a city council hearing last June, NYPD Chief Dermot Shea testified that individuals can be added to the database if they “admit” to being members of a gang or if they are identified as such by “two independent and reliable sources.” In the absence of identification, the NYPD may choose to add an individual to the list if they meet at least two of a wide-ranging list of criteria that include one’s presence at a “known gang location,” association with “known gang members,” social media posts, scars, tattoos, and the use of gang “signs” and “colors.” One document published by The Intercept in June showed a list of colors that the NYPD considered to be associated to gangs: black, gold, yellow, red, purple, green, blue, white, brown, khaki, gray, orange, and lime green.

NEW YORK, NY - JUNE 27: NYPD Chief of Detectives Dermot Shea speaks during a press conference about gang violence at New York City Police Department (NYPD) headquarters, June 27, 2018 in New York City. Law enforcement officials announced the arrest of alleged members of the Bronx-based Mac Balla gang following a months-long investigation. The NYPD is also currently investigating the Trinitarios gang, who were responsible for the recent murder of a 15-year old in The Bronx.  (Photo by Drew Angerer/Getty Images)

Chief of Detectives Dermot Shea speaks during a press conference about gang violence at NYPD headquarters on June 27, 2018.

Photo: Drew Angerer/Getty Images

Earning a spot on the list requires no evidence of criminality, but Shea said that the department has “instituted oversight mechanisms” to ensure that the recommendation to enter someone in the database is “backed up by evidence.”

Despite Shea’s testimony, when the NAACP Legal Defense and Educational Fund, or LDF, filed a public records request to obtain those criteria, the NYPD responded that it could not locate any. “Instead, the NYPD officer charged with responding to our requests insisted that NYPD personnel communicate this information verbally,” Marne Lenox, an assistant counsel at the LDF, wrote in an op-ed for the New York Daily News. “This, apparently, is the NYPD’s sophisticated ‘oversight mechanism’ to ensure the reliability of its database.” Shea did not respond to The Intercept’s questions about his testimony.

The problem with such vague, broad, and apparently unwritten criteria, critics say, is that it criminalizes perfectly innocuous behavior — like having friends in one’s neighborhood — and does so in a way that is discriminatory.

Because the NYPD is not complying with Shenery’s FOIL request, he and his attorneys don’t know what criteria put him on the list. “The DA and the NYPD, they share this information openly with each other and they just will not turn that over to us, which is absurd,” said White. The DA spokesperson told The Intercept that “the Office meets and exceeds its legal and professional obligations with regard to disclosures to criminal defendants, including in this matter.”

What is clear is that Shenery was targeted because he lives in a certain neighborhood and knows people in that neighborhood. After his arrest, prosecutors offered him a one- to three-year sentence, then told him that it could be significantly reduced if he gave them information they needed. “They wanted him to give them information that he didn’t have,” said White. “He has always said, ‘I’m not what they’re saying.’ He’s in the street hanging out because that’s what kids do in New York.”

Precision Policing

Prosecutors and police have regularly defended their enforcement practices as precise and surgical — even when they have led to mass raids and indictments. In law enforcement lingo, gang policing and prosecutions in the city have been “intelligence-driven” and “proactive.” But what that means in practice is that one need not have committed or intended to commit any serious or gang-related crimes in order to get swept up by law enforcement’s gang policing efforts.

A set of documents used by the Manhattan DA’s office for training purposes, obtained by The Intercept, shows how the “gang” label, an unproven allegation, can trigger a series of consequences and enhancements for individuals coming into contact with police over sometimes minor violations. In a PowerPoint presentation prepared by the office’s Crime Strategies Unit, as well as in a report by the office about investigative innovations, prosecutors lay out how, when an arrest alert is shared between police and prosecutors across jurisdictions, an individual’s presence in a series of law enforcement lists, including the gang database, is also flagged. The slides also list, under the header “case enhancement,” elements like suspects’ social networks or their nicknames. The DA’s spokesperson said that “case enhancement” can refer to identifying potential investigative steps or informing bail and sentencing recommendations.

Shenery’s case is a textbook example of how this works in practice.

“So he comes in on a marijuana charge,” Posada said, “and immediately under this form of policing that they have, what they call precision policing, they’ll dial up the charges on him and bump up his knife to a felony.”

“[The gang label] was weaponized in court, so the district attorneys could add more weight to their case,” he added.

Legal Aid is not the only group using the courts in an effort to force the NYPD to be more transparent about its gang policing efforts.

The LDF and the Center for Constitutional Rights have sued the department over its failure to comply with public records requests about the database. Darius Charney, a senior staff attorney at CCR, called the NYPD’s gang policing practices “a black box that, like stop and frisk before them, have subjected thousands of young people of color in New York City over the past several years to police surveillance, harassment, and worse.” The LDF also filed a similar records request with the Manhattan DA, and another one with the New York City Department of Education.

The gang database came under heightened scrutiny earlier this year at a city council hearing during which the NYPD disputed The Intercept’s reporting and the figures we cited about the database — even though those figures were released by the NYPD itself in response to yet another public records request.

Council Member Brad Lander, who has long advocated for police oversight, told The Intercept that the hearing “raised more questions than it answered,” prompting him and others to call on the Inspector General for the NYPD, which is tasked with independently monitoring the department’s work, to investigate its gang policing practices. After the hearing, the Inspector General indicated to stakeholders that it was considering an investigation — but has yet to announce one. BuzzFeed News reported that the office was “discouraged” from scrutinizing the database by Department of Investigation head Mark Peters, who was recently fired by Mayor Bill de Blasio. The Department of Investigation, which oversees the Inspector General for the NYPD, declined to comment.

“We don’t yet have a public commitment from them to do that investigation, but we have asked them to, they are taking the request seriously, and I hope they will in the near future,” Lander told The Intercept. “I had hoped that they’d move very quickly.”

“It says a lot about policing in general, but policing on this issue specifically, that the police want to operate with as little transparency as possible,” Josmar Trujillo, a community organizer who has long advocated against the NYPD’s gang policing practices, told The Intercept. “That’s generally how they like to operate but in this regard, they are creating an infrastructure that affects thousands and thousands of people, including young people who are middle-school age. The public has almost no means other than suing them in order to get it.”

Trujillo noted that the discriminatory and unchecked policing tactics the database is built on are nothing new, but the technology behind the NYPD’s growing emphasis on data-driven, proactive policing is unprecedented.

“People have a street sense that police can use this gang label, that an individual cop can just put a label on you and that prosecutors can pretty much do whatever they want in court. They know that from their experience and generational memory of what policing and prosecution is in communities of color,” he said. “I think what they don’t know is the extent to which police have codified it and what technology has allowed police to do. They’re not aware of how much infrastructure, how much investment, has gone into this type of policing for the future. You ask 100 New Yorkers and I think 99 of them won’t know what predictive policing is.”

“That doesn’t have to do with the public’s ignorance, that has more to do with the secrecy the NYPD has been allowed to operate under,” he added. “We have concerns now based on the little we know. Can you imagine if we knew the full extent of what the police is doing?”

But while much about the database and how it is used remains secret, its impact is already being felt.

Two years of fighting his charges has left Shenery exhausted and discouraged — so much so that at one point, he considered simply taking the felony conviction. He ended up pleading guilty, but under the terms of the agreement, the felony will be reduced to a misdemeanor after a year if he meets a series of conditions. But that means he’s regularly back in court. His next hearing is on Thursday.

“It’s been hard for him to have to hear these things said about him and know this case has taken the long path it’s taken because of this view of him that is just false,” said White. “He thinks it’s unfair and unwarranted and that they really have no basis to do what they’ve done, but he also feels that it’s a fruitless fight, and that the police will continue to treat him like a gang member when they see him.”

The post NYPD Gang Database Can Turn Unsuspecting New Yorkers into Instant Felons appeared first on The Intercept.

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