Coalition Urges Mass. High Court to Scrutinize Unreliable, Overbroad, and Racist Gang Labels

In January, along with the New England Innocence Project, the Massachusetts Association of Criminal Defense Lawyers, the ACLU of Massachusetts, and Lawyers for Civil Rights, we urged the Supreme Judicial Court to take a case about a pretextual stop in New Bedford. The case raises substantial questions regarding how police may justify a patfrisk, which the SJC has described as “a ‘serious intrusion on the sanctity of the person [that] is not to be undertaken lightly.’” Commonwealth v. Torres-Pagan, 484 Mass. 34, 36 (2020).

The SJC agreed to take the case and set it for an expedited argument date. And as argument approached, Citizens for Juvenile Justice (CfJJ) released a significant new report, We Are The Prey, on gang policing in New Bedford, for the first time documenting the stark demographic breakdown of the police-compiled list of gang members in New Bedford and their field incident surveillance. CfJJ joined the amicus brief, as did the state public defender agency the Committee for Public Counsel Services and Rights Behind Bars.

Overall, this case has broad implications for the erosion of the constitutional right to be free of unreasonable searches and seizures in communities of color. Police in New Bedford, in Boston, and throughout Massachusetts label young Black and Latinx people gang members with an unreliable, overbroad, and racist system of surveillance, assigning arbitrary points based on who they know, what they wear, and where they go. There is no due process for being added to the database, and many people may not know they’ve been labeled a gang member until the police start targeting them for stops and searches even more aggressively. Once on a gang list, it is nearly impossible to get off it. Police then use gang labels to supply suspicion where none might have existed otherwise. Here, a young man was sitting quietly in the backseat of a car and complying with police instructions after a traffic stop for an allegedly unsafe lane change before being ordered out of the car and frisked.

Gang databases are artificial racist constructs and unreliable indicators of criminal associations, let alone criminal conduct. The fact that police have placed someone on a gang list or in a gang database should not be a basis for reasonable suspicion that he or she has committed a crime or might be armed and dangerous during a civil traffic stop. And even if police can prove that a gang label is reliable and supported by evidence in any given case, courts should require a nexus to the alleged incident before it can be given such significant explanatory power for otherwise innocuous behavior. Much like recent scholarship and legal advocacy attacking police reliance on asserted “high crime areas” to justify seizures and searches, this brief explains how designating people as “validated” gang members criminalizes communities of color in Massachusetts.

Read our brief: