In March 2016, the District of Columbia enacted the Neighborhood Engagement Achieves Results (NEAR) Act of 2016. One of its key provisions required the D.C. Metropolitan Police Department (MPD) to collect detailed and comprehensive data about stops and frisks the police carry out on the streets of the District. The collection of this data is crucial to ensuring that the police do not unfairly and unconstitutionally focus on people of color when conducting these stops. We filed a FOIA request in February 2017 for the NEAR Act Stop & Frisk Data, but MPD responded that the data collection requirement had not yet been implemented. Over the following year, officials from Mayor Bowser’s office and MPD responded to oversight inquiries by the D.C. Council with a shifting and contradictory parade of excuses, the release of recycled and incomplete pre-NEAR data, and even the misleading claim that the NEAR Act has been “fully implemented.” In fact, based on Council testimony by top D.C. officials in February 2018 and press statements from MPD in March 2018, it became clear that, two years on, the NEAR Act Stop & Frisk Data collection requirement has not been implemented, that the District has not touched the money the Council allocated more than a year ago for implementation, and the District is no closer to collecting the NEAR Act Stop & Frisk Data than when the Act was passed.
Meanwhile, the need for the data required by the NEAR Act has remained acute. Although African Americans make up forty-seven percent of D.C.’s population, they remain the subjects of the vast majority of all stops, frisks, and uses of force in the District. A February 2018 investigative report from WUSA9 analyzed pre-NEAR Act data and found that approximately eighty percent of the stops involved a black subject. As D.C. Circuit Judge Janice Rogers Brown wrote in 2015, D.C. police have a practice of subjecting individuals “who fit a certain statistical profile” to “intrusive searches unless they can prove their innocence” “[d]espite lacking any semblance of particularized suspicion when the initial contact is made.” However, without the data collection required by the NEAR Act, such practices remain impossible to document comprehensively so as to facilitate meaningful reform. Gaining a complete understanding of the contours of the problem is the first step toward fixing it. If the D.C. police are not collecting the data the NEAR Act requires them to collect, accountability and reform will remain elusive, as they have for so many years, and MPD will continue to subject communities of color in the District to disproportionate and unfair treatment.
In March 2018, the ACLU of D.C., together with Black Lives Matter D.C. and the Stop Police Terror Project D.C., filed a renewed FOIA request seeking all data collected under the NEAR Act (if any) and all of the District’s plans to implement the NEAR Act Stop & Frisk Data collection requirement. The three civil rights groups simultaneously sent a demand letter to the Mayor threatening legal action to compel compliance with the NEAR Act Stop & Frisk Data collection requirement if the District cannot produce detailed, concrete, and realistic plans for swift implementation.
In May 2018, after the deadline for the FOIA response passed without the District’s having provided any data collected in compliance with the NEAR Act’s requirements or concrete implementation plans for NEAR Act data collection, Black Lives Matter D.C., the Stop Police Terror Project D.C., and the ACLU of D.C. sued Mayor Bowser, Deputy Mayor Kevin Donahue, and Chief of Police Peter Newsham for failing to comply with the law. The lawsuit claims that the defendants’ delay of two years (and counting) in implementing the NEAR Act’s simple but critical data collection requirement is so unreasonable as to warrant judicial intervention. The plaintiffs seek an injunction setting strict and prompt deadlines for implementation.
In August 2018, we learned that MPD was requesting proposals for a data analysis system that sought to “harvest” existing data rather than collect the new types of data required by the NEAR Act, so we moved the court for a hearing to address our motion for a preliminary injunction and MPD’s continued failure to move toward full compliance with the NEAR Act’s data-collection requirements.
The court held hearings in September and October 2018. After the government conceded that the NEAR Act remained unimplemented, that MPD was not collecting all the required data, and that MPD did not have a firm timeframe for implementation, the court required the government to submit a status report about implementation plans. In October 2018, the government moved to dismiss the case, principally claiming that plaintiffs lacked standing and that the government’s actions were not subject to judicial review; our response later that month explained how the plaintiffs were denied information to which they were entitled by statute and which the D.C. Council intended be made available to them, and that courts have longstanding authority to enjoin unconstitutional action or inaction.
Meanwhile, the government’s status report proposed to implement an interim data-collection policy by early November and an ultimate solution by the end of summer 2019. However, as we pointed out in response to the government’s status report, the interim solution was plainly inadequate, because it would still fail to collect all the required data; would collect some of the required data in a manner (an unstructured “narrative”) that makes complete collection exceedingly unlikely and difficult to verify, and the data itself nearly impossible to aggregate and analyze; and would collect some of the required data in a medium (body-worn camera recording) that does not qualify as a “record” under the NEAR Act and that will not usually be kept longer than 90 days. Given MPD’s repeated refusal to implement the law over the course of more than two and a half years, we asked the court to order that all officers fill out a one-page form to begin collecting the data right away.
At a hearing in early November 2018, the Court denied the government’s motion to dismiss, holding among other things that the plaintiffs have standing to challenge the failure to implement the NEAR Act because the goal of the law is to make the NEAR Act data accessible and shareable with the public and groups such as the plaintiffs. The Court also expressed concern about several aspects of D.C.’s proposed interim solution, especially the government’s proposal to use officers’ body worn cameras for collecting some of the required categories of data. The judge therefore ordered the government to file a supplemental explanation of its interim proposal. At a hearing in mid-November, the judge indicated that the government’s proposal remained inadequate and that he would soon be issuing an order requiring MPD to come into compliance with the NEAR Act.
With the preliminary injunction motion still pending, in April 2019 the ACLU-DC submitted a Freedom of Information Act request to the District for a subset of the NEAR Act data (race/ethnicity data for traffic stops) to see whether the District was able to provide it. Just as we suspected, MPD was unable to provide that data in useable form, or in a reasonable time, or at a reasonable cost. Instead, MPD responded to our request that the past six months’ worth of the requested data is contained only in a set of 31,521 individual recordings from officers’ body-worn cameras. For plaintiffs to compile a complete set of data about the race or ethnicity of individuals stopped by MPD, each of these videos would have to be individually reviewed, before being combined with race/ethnicity data for non-traffic stops. Even making the conservative assumption that a traffic stop lasts, on average, just 5 minutes, watching all the videos would take more than 2,600 hours, or more than 109 days of nonstop, 24-hour-a-day, video viewing. Although MPD has not informed the ACLU-DC how much it will charge in redaction fees before disclosing the videos at issue here (despite our requests), a prior invoice from MPD for a prior ACLU-DC body-camera FOIA request charged redaction fees at a rate of $23 per minute of video. Multiplying the $23 rate by 5 minutes for each of the 31,521 videos yields the astronomical fee of $3,624,915. In June 2019, we filed a supplemental brief informing the court of these developments and arguing that they underscore the urgent for a court order for MPD to collect the data. A data-collection regime that requires paying millions of dollars and then watching thousands of hours of traffic-stop video to obtain the data falls farcically short of what the Council intended or what the NEAR Act required when it mandated that Defendants keep records of specific information on stops by police in the District of Columbia. Thus, we argued, “It is clearer than ever that MPD will continue to dodge its record-keeping obligation under the NEAR Act until and unless this Court finally steps in and orders compliance.”