Attitude is everything, these kids agree. Although they can't prevent cops from stopping them--they accept that--they know that too much attitude can make all the difference after you're pulled over for some minor thing, but really for "driving while brown" or "driving while black."
Juan Hernandez made the mistake of driving while brown one recent night. "I was at a party," he says, "and I was going to another party." It was a private party, invitation only--but the invitation was back at his house in northwest Denver. So he got in his car--nothing fancy, a Cavalier--and headed home to 32nd and Zuni. "There was a car right behind me. I didn't suspect nothing of it, and I just pulled up in front to jump into the house." But then a cop got out of the car and ordered Hernandez to stop. "I told him that I lived right here, that I just needed the invitation," he remembers. "He told me to get in the car, stay put, and asked for my license and registration."
The cop went back to his unmarked car to run a computer check, then returned. Did Hernandez have any tattoos? No. Was he in a gang? No. "He kept asking, are you in a gang? Are you sure?" Hernandez was very sure he wasn't in a gang, but he was also tired of getting hassled and missing the party. "He was making me mad, so I said something kind of smart to him." Specifically, he said that he was in two gangs--bitter rivals in northwest Denver. The cop didn't like that answer any better.
Just in time, Hernandez's sister came out and asked what was wrong. The cop told her Juan had been driving on the wrong side of the road--although he was never ticketed.
Hernandez didn't make it to that party, but at least he made it the few feet from his car to his front door. Other kids don't fare as well.
At North High, Hernandez talks a lot with friends about the perils of driving brown, conversations that echo across the metro area, even as the colors change. While most of the kids doing the talking don't have Hernandez's clean record or the confidence that comes from being a cheerleader--which he is--most of them aren't hardcore gang members, either.
But a computer doesn't make such distinctions.
While sifting through documents acquired during discovery in a now-closed civil case, Mark Silverstein, legal director of the ACLU of Colorado, came across a directive from the City of Aurora outlining Aurora Police Department practices at least through the summer of 1997. According to APD Directives Manual Number 6.16.1, a gang member is a juvenile or adult who:
"a) Admits to gang membership, or b) has tattoos that indicate gang membership, or c) commits a gang-related crime, or d) exhibits a combination of the following: wears clothing which is common to gang members, e.g., a bandanna, clothing of a particular color or with insignias indicating gang membership; displays mannerisms which identify the person as a gang member, e.g., hand signs, speech patterns, slang; admits detailed knowledge of gang activity; admits to the use of a moniker; displays hairstyles, jewelry or other paraphernalia, e.g., pagers, expensive automobiles, cellular phones, etc., common to gang membership; has been identified by another Law Enforcement Agency as a gang member."
The criteria seemed a bit excessive, particularly since nothing more than a nickname and a cell phone--two things most lawyers playing pick-up ball at the Y also possess--could land you on the list. What was more worrisome was what Aurora was doing with the names of people it had labeled as gang members: sending them to the Colorado Bureau of Information. As of November 1, 1997, Aurora had contributed 1,323 names to the CBI's 3,000-member gang database--79 percent of which belonged not to attorneys, but to blacks.
Were other municipalities feeding equally flawed lists to the CBI? If so, Silverstein reasoned, the Colorado Law Enforcement Intelligence Network, which includes the gang database, could be in violation of federal regulations designed to assure that such systems "are utilized in conformance with the privacy and constitutional rights of individuals." In other words, the CBI was supposed to have evidence of actual criminal activity before an individual's name was added to the list.
Silverstein filed a Freedom of Information Act request and began corresponding with CBI's Gray Buckley in October 1997. "It seems like it's been a career," sighs Buckley.
The most recent round, an eight-page letter from Silverstein ("and I was just getting going," he says) landed on Buckley's desk Monday. In it, Silverstein outlined problems with the way CBI keeps its database. The CBI criteria doesn't mention the standard of reasonable suspicion required under federal regulation. The CBI fails to require a documented connection to criminal activity--much less to the organized criminal activity suggested by federal regulations. And the CBI can't fall back on state law, Silverstein says: The Colorado statute that defines a gang as "a group of three or more individuals with a common interest, bond, or activity characterized by criminal or delinquent conduct" also is too broad to fit within the federal rules regulating such databases.
All of which means "we've made the beginnings of a very compelling case, " Silverstein says.
Not that the ACLU plans to make it an official legal case anytime soon. For starters, it's not that easy to find an aggrieved non-gang member who's made the CBI's list: Its contents are confidential. Besides, the ACLU already has plenty of active lawsuits; since Silverstein arrived in Denver from the ACLU's Southern California office in April 1996, he's added to the load considerably, and some of those cases involve police conduct. "To tell you the truth," Silverstein says, "I'm hoping this letter could persuade the CBI to look at the way they're doing things."
After all, right now the U.S. Supreme Court is looking into how Chicago does things, including making it a crime to loiter in the company of someone police suspect is a gang member.
But this isn't Chicago. The CBI's gang database, Buckley explains, is simply an index "of people who local police have reason to believe are involved in gang activity." Although the CBI does not provide a list of criteria for the twenty agencies currently supplying data, it does recommend that they follow the state statute defining gangs.
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"Once they have the information, they can punch it into the CBI report," Buckley says. The CBI doesn't check it or the documentation that supposedly justifies the name's inclusion on the gang list. But the agency does audit the list from time to time--and given Silverstein's interest, that time is drawing very nigh. "Of course we're going to check and re-examine any facet of it in view of his request," Buckley says.
But Silverstein isn't the only one questioning the value of the CBI's list. Law-enforcement agencies are increasingly careful about traffic stops, and even if a driver shows up on a computerized gang list, that doesn't give the cop license to hassle him--much less arrest him. (A warrant has to pop up to justify that--a warrant, or some bad attitude.) The Denver Police Department pulled out of the CBI's master project over a year ago and keeps its own list--a list much improved from the one in circulation five years ago. (After the DPD stepped up enforcement during the so-called Summer of Violence, it turned out that 80 percent of the city's minority kids were included in the cast of thousands on the gang list.) The DPD now updates its list every day, says Detective Dave Metzler, "and it's based on who claims they're a gang member."
If you're white, kids say, you can't know what it's like to get caught driving while brown. It's tough enough if the cops have no reason to suspect you and you're not on any gang list--that you know of, anyway. But if your name flashes on a CBI search--maybe for nothing more suspicious than wearing the wrong colors and having the wrong name in the wrong town--attitude could be everything.