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Rod Watson: Exploitative policing should be a crime

Rod Watson

How could this happen in Buffalo? If a lawsuit filed by three legal organizations is even remotely valid, this city will have to come to terms with that question about race and representative government.

After all, the accusations have all of the makings of the deplorable policing tactics that the U.S. Justice Department uncovered in Ferguson, Mo., after Michael Brown was fatally shot there in August 2014.

But there are two notable differences: Buffalo, at least geographically, is not anywhere near the South.

And Buffalo, unlike Ferguson at the time, has black city leadership.

Yet the lawsuit – filed last week by the Center for Constitutional Rights, the National Center for Law and Economic Justice, and the Western New York Law Center – is filled with data accusing the city of preying on black and Latino motorists to pad its coffers with money raised through unconstitutional traffic checkpoints.

The lawsuit alleges that 85 percent of the checkpoints were in black and Latino neighborhoods and 40 percent occurred in just three Census tracts, each of which is at least 86 percent minority.

As for the rationale that this also is where a lot of crime occurs, that is true – as evidenced by Monday's horrific double murder. But a regression analysis – which homes in on which variable is most influential – shows that race was the dominant factor, said Claudia Wilner, senior attorney with the National Center for Law and Economic Justice. According to the lawsuit, race explains "nearly 80 percent of the variation in Checkpoint location," and it is a much stronger driver in the analysis than is crime, said National Center Board Member Edward P. Krugman.

But even if crime were the real reason, the U.S. Supreme Court, in City of Indianapolis vs. Edmond, already has held that checkpoints whose purposes are "ultimately indistinguishable from the general interest in crime control" violate the Fourth Amendment prohibition against unreasonable searches that lack probable cause.

Instead, just like in Ferguson, money – not crime control – appears to be a big part of the motivation here. The first year of the Buffalo checkpoints, according to the lawsuit, police issued 92 percent more traffic tickets than in the prior year, harvesting "revenue from poor, Black and Latino residents at a grossly disproportionate level."

In one example cited, police issued four separate tickets for tinted windows – one for each window – costing the driver $720. And those who can’t pay have their car impounded, which adds to the tab and causes further problems. And there’s no escape because cops cordon off surrounding streets and often set up checkpoints on one-way streets so drivers cannot turn around to avoid them. One plaintiff even took to the Buffalo Checkpoints Facebook page before going anywhere just so he could avoid the hassle of being stopped for no justifiable reason.

No one should have to live like that.

This from the administration of Mayor Byron W. Brown, the city’s first black mayor, who last year got 86 percent of the vote in Masten and 79 percent in Ellicott, Buffalo’s heavily African-American districts.

Mayoral spokesman Michael J. DeGeorge said residents "in every section of the city want public safety," that police respond to concerns ranging from speeding to drugs to guns, and that Brown visited numerous community centers and block clubs last summer to listen to citizens.

"In response to those concerns, late last year the mayor announced traffic enhancement and enforcement measures including speed humps, additional speed signs and additional resources being assigned to the Buffalo police traffic division to handle these issues," he said by email, adding that resources from the now-disbanded Strike Force – which had been an integral part of the checkpoints – were reassigned to other units.

He would not, however, address any of the specifics in the lawsuit.

"As far as allegations in the complaint, it’s pending litigation and the city can’t comment," he said, though no court order bars the administration from explaining itself or taking issue with the specifics.

DeGeorge, however, did have one comment about the suit, saying "any claim of discrimination is absurd."

But the numbers are the numbers.

Unlike Ferguson, Buffalo also has a black Common Council president, a Latino majority leader and two other blacks on the nine-member body. At least the Council seemed interested in the problem, responding to citizen outrage by asking for information on the checkpoints.

"It was the Council that ordered the data because of the concerns that were brought to us," said Council President Darius G. Pridgen.

In fact, the figures the Council got from the administration seemed to undermine the complaints by showing that black neighborhoods were not being singled out.

There was just one problem: The lawsuit claims the tally sheets submitted to the Council covered only parts of 2017, when police – after the Council took an interest – began setting up more checkpoints "in white neighborhoods that had never previously experienced Checkpoints."

The numbers before and after the Council got involved were like night and day – or black and white – with almost all checkpoints set up in minority neighborhoods in the four years prior to the Council’s inquiry, and some semblance of parity afterward, according to the suit.

In short, the data the administration turned over last year "was a sham to cover up the previous intentionally discriminatory targeting of Black and Latino neighborhoods," the plaintiffs say.

Pridgen says if that is true, "that would be a problem for me. But that has to be proven."

He’s right. I’m sure the Brown administration will have its own analysis for the court.

But on their face, the statistics in the lawsuit are damning.

Obviously, law-abiding citizens deserve protection from black-on-black crime committed by gun-toting parasites in these neighborhoods. But just as obviously, being ticketed for tinted windows or not wearing a seat belt is not what residents have in mind when they ask for effective policing. There are ways to protect residents without violating their Constitutional rights and draining their wallets.

When it happened in Ferguson, racism – explicit or implicit – was an obvious contributor. The fact that Buffalo’s black city administration appears to have implemented the same tactics doesn’t make them any less discriminatory. In fact, it should make residents wonder exactly what they voted for.

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