ACLU-DC Testimony at the Performance Oversight Hearing on the Metropolitan Police Department

ACLU-DC testifies before the D.C. Council Committee key takeaways and recommendations from our analysis of MPD’s 2020 NEAR Act “stop and frisk” data, and our report "Protest During Pandemic: D.C. Police Kettling of Racial Justice Demonstrators on Swann Street."

Statement on behalf of the
American Civil Liberties Union of the District of Columbia
before the DC Council Committee on the Judiciary and Public Safety
Performance Oversight Hearing on the Metropolitan Police Department
by
Nassim Moshiree, Policy Director
March 11, 2021

Good afternoon, Councilmember Allen and members of the Committee. My name is Nassim Moshiree, and I am the Policy Director of the American Civil Liberties Union of the District of Columbia (ACLU-DC). I present the following testimony on behalf of our more than 13,500 members who live and vote in the District.

The ACLU-DC is a non-partisan nonprofit committed to working to reverse the tide of overincarceration, safeguard fundamental liberties, eliminate racial disparities, and advocate for sensible, evidence-based criminal justice reforms.

I will focus my testimony today on key takeaways and recommendations from our analysis of MPD’s recently released NEAR Act “stop and frisk” data , and our report "Protest During Pandemic: D.C. Police Kettling of Racial Justice Demonstrators on Swann Street” (“Swann Street Report”) which we released on March 8, 2020 in collaboration with the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and Sidley Austin LLP. What these reports have in common is that they provide insight not only into the practices of MPD, but how the public experiences policing in the District. We offer these reports to inform the government’s oversight and police reform efforts.

I. ACLU-DC Analysis of 2020 Near Act Stop Data Reveals Persistent and Stark Racial Disparities in MPD Stops

In June of last year, the ACLU-DC published a report analyzing five months of stop data collected by MPD between July 22, 2019 and December 31, 2019 pursuant to the Neighborhood Engagement Achieves Results Act (NEAR Act). In that analysis we found stark racial disparities in stops and searches conducted by MPD that supported community members’ repeated calls greater police accountability and limits on racist, harmful, and ineffective stop practices. Following the ACLU-DC Freedom of Information Act lawsuit for 2020 stop data, MPD finally published data for stops conducted from January 1, 2020 to December 31, 2020.

Our analysis of this data indicates that essentially nothing has changed since 2019—MPD’s stop practices continue to be highly ineffective, ultimately amount to racial profiling, and potentially violate the constitutional rights of Black people in the District on a daily basis. In 2020, Black people continued to be the target of the vast majority (74.6%) of all stops conducted by MPD. Black people also continued to endure more intrusive stops, making up over 90.5% of those who experienced a search or pat-down of their person or property, and were the subjects of the majority of stops and searches that resulted in no warning, ticket, or arrest.

The disparities in youth stops also followed 2019 trends. The 2019 data revealed the vast majority (nearly 89%) of youth under 18 who were stopped were Black. The same held true in 2020, during which nearly 89.1% of youth stopped, or 8 out of 9 individuals, were Black. Black youth under 18 in 2020 were stopped at approximately 11.9 times the rate of their white peers and continued to experience significantly more searches. This matches what we regularly hear from Black community members -- their experiences of being treated in their own communities as criminals by police even when they haven’t done anything starts at a very young age.

Finally, while we agree that getting illegal guns off the streets is important, MPD's approach of using stops to tackle gun violence has been largely ineffective. The data continue to show that percentage of stops leading to the seizure of a weapon of any kind remains extremely low, and with respect to guns, the numbers are even lower: only 1.0% of all stops and 2.2% of all non-traffic stops led to the recovery of a firearm in 2020.

The ACLU-DC has long supported a public health approach to this epidemic, and of course this was also the intent behind the Council’s passage of the NEAR Act. Recently, the Mayor announced the launch of Building Blocks DC and the Gun Violence Prevention Emergency Operations Center (EOC) , a new comprehensive program that takes a public health and “whole government” approach to tackling the epidemic of gun violence in the District, recognizing that policing, arrests, and prosecutions have been unsuccessful at solving a problem that requires addressing the root causes of community violence. We’re hopeful that the District is on the right path with this program, but as with the NEAR Act before it, it will require significant resources in mental health and trauma services, affordable housing, education, as well as violence interruption efforts, to be successful. As we head into budget season, we hope that this is reflected in the Mayor’s and Council’s funding priorities.

We urge the Council to adopt policies that not only reduce over-policing of the District’s Black and Brown residents, but also increase accountability for officers who abuse their powers. We also have the following recommendations for improving the quality, transparency, and impact of NEAR Act data:

1. To improve the quality of the data collected, MPD should update its data collection systems. MPD asks officers to explain the justification for stops and searches by selecting options from a dropdown menu and completing more detailed narratives. The public only sees the options selected from the dropdown menu, which is unfortunate—not only because the fields on that menu are confusing and imprecise, but also because the public can only assess whether stops are justified if they know the facts the officers relied on to make the stops. MPD should either release their internal narratives for each stop after redacting confidential information, or ask officers to put the facts that led to the stop in a separate text box, and save confidential details (e.g. the suspect’s name or the name of any informants) for other parts of their internal reports.
2. To facilitate comprehensive analysis of the criminal justice system in D.C., the District should synchronize its databases.Police stops are troubling not only because they can be degrading but also because they can lead to excessive force or unnecessary arrests, which in turn can lead to other collateral consequences. Creating a database that links all relevant information about police encounters will allow the community and District leaders to track the story of each stop and understand the big picture of policing in the District. Specifically, for a given incident, the public should be able to view the details about any call for service, the stop, whether force was used, what charges (if any) were filed, and the disposition of any criminal case.
3. To increase data transparency, the Council should legislate changes to access and reporting requirements of the NEAR Act data.To increase data transparency and given MPD’s consistent failure to comply with the NEAR Act over the past several years, we recommend that an independent oversight body, such as the Office of Police Complaints, have access to MPD’s data systems, such that it can access the NEAR Act data as officers enter it. We also recommend that the Council amend the NEAR Act to mandate regular release of this data twice annually on specified dates.
4. To increase impact of the data on police practices, there should be random audits of MPD's compliance and stop practices. The ACLU-DC recommends that an independent body, such as the Office of Police Complaints, be tasked with conducting periodic random assessments of the NEAR Act data and corresponding body-worn camera footage and document and publicize patterns of misconduct, including failure to record information.

II. Protest During Pandemic: the Swann Street Report

Our Swann Street report details the events of June 1, 2020, in which MPD officers used an incredible show of force to kettle and ultimately arrested about 200 individuals who had been protesting police brutality in the wake of the murder of George Floyd. This report is based on interviews with more than 50 individual eyewitnesses, including both protesters and Swann Street residents who viewed the police action from their homes.

As brief background, Mayor Bowser had issued a curfew order for that day that went into effect at 7pm. Earlier in the evening, peaceful demonstrators had been teargassed and forcibly removed by law enforcement from Lafayette Square before President Trump’s photo op in front of St. John’s Church. Different groups of protesters who continued to march after curfew in the Dupont area were funneled by MPD onto Swann Street between 14th and 15th Streets NW where they were then kettled, detained for hours, pepper-sprayed, handcuffed with zip-ties, and eventually arrested and charged with violating curfew. The following are key questions and recommendations from this report:

1. Why did MPD not issue dispersal orders in its enforcement of curfew instead of responding to peaceful protest with a massive and excessive show of force? The harms inflicted on protesters that night – including lengthy detention in a confined space, being pepper-sprayed in the eyes, and arrests that increased their vulnerability to COVID-19 – arose from MPD’s decision to kettle the protesters and arrest them instead of issuing an order for everyone to go home. Protestors reported that they never heard the police give a dispersal order during the time they were marching along city streets; many asked the police for permission to go home once they were kettled on Swann Street, and instead of granting that permission and deescalating the situation, MPD chose to close ranks with riot shields, press the protestors closer together, and arrest them, at times deploying pepper spray to pursue that aim. MPD made that choice, even though, after arresting hundreds of people, they charged each of them with only a simple curfew violation. The Council should direct MPD to develop guidance that would restrain officers’ discretion to arrest individuals for curfew violations, especially in situations when doing so may itself be dangerous. The Council should also amend the First Amendment Assemblies Act to require that police attempt to disperse an unlawful but non-violent assembly before engaging in kettling tactics or arrests.
2. What efforts did MPD take to verify their evident suspicions that the protests in and around 14th Street could turn violent to before kettling and arresting protesters? Former Police Chief Peter Newsham stated in a press conference on June 3, 2020 that the decision to kettle hundreds of protesters on Swann Street was based in part on a belief that the protesters had lit a police cruiser on fire. No witness interviewed reported observing any burning car, let alone seeing a protester start the fire. Moreover, it is not clear how MPD’s assessment that it was necessary to kettle hundreds of protestors can be squared with eyewitness reports that those marching were orderly, non-violent, and (apart from a handful of protestors who threw water bottles) non-disruptive. If police had evidence of demonstrators engaging in violence or property destruction, they would have charged them with such, but the only charge that any of the protesters was cited for was curfew violation. We urge the Council to inquire into the factual basis of MPD’s threat assessment, and into the steps MPD took to confirm its suspicions before kettling and arresting hundreds of individuals. These facts are critical to determining whether changes of law or procedure are warranted to ensure that any decision to conduct mass arrests rests on a firm factual foundation and sound policing judgment.
3. What precautions should MPD have taken to protect its officers and civilians from COVID-19 when conducting a mass arrest? Many protesters reported that only a handful of MPD officers were wearing masks the night of June 1. Likewise, many protestors reported that MPD officers removed protesters’ masks when processing their arrests and that the officers declined to assist the protesters (whose hands were zip-tied) in re-applying their masks or to loosen the zip-ties so that protesters could reposition the masks themselves. Compounding the lack of adequate masks, the vans and buses that MPD used to transport protestors from Swann Street across the District to the Police Academy did not allow for social distancing. And once the protesters arrived at the Police Academy, many were detained in crowded rooms where social distancing was impossible. Given the enormously serious risks that COVID-19 posed to public health and continues to pose now, it is imperative that when MPD conducts arrests, it does so in a manner that limits the risk of exposure to COVID-19. The Council therefore should examine any existing MPD guidelines for mass arrests, and, as appropriate, should consider requiring MPD to adopt new best practices.
4. When MPD conducts a mass arrest, what protocols are in place to ensure fair treatment of arrested individuals? Protesters reported being bruised from the zipties, having scrapes and other injuries from being pushed by riot gear, and continuing to have irritated eyes from the pepper spray. Zip-ties or similar disposable restraints are regularly used during mass arrests and their use is governed by the The First Amendment Assemblies Act and other regulations. MPD and the District government more broadly have a responsibility to provide basic provisions to individuals in their care. From the accounts of the protesters, MPD efforts to meet these responsibilities varied wildly amongst the protesters in their custody. Some protesters were held for many hours while zip-tied and without access to a bathroom or water. The Council should direct that MPD have clear protocols in place to ensure that restraints are not abused or tightened to the point where individuals’ wrists are bruised and cut, as some protesters reported, including trainings and accountability mechanisms when MPD officers violate their duty to treat arrestees fairly and provide basic provisions.

Finally, a greater number of the protestors we interviewed focused on the emotional effects of the evening. Many described their experience as traumatic, frightening, or humiliating. Protestors also reported that their experiences caused them to further distrust the police. These sentiments are similar to those expressed by D.C. residents who are subject to unjustified police stops, searches, and harassment. We hope that the findings of both our NEAR Act analysis and the Swann Street report can serve as an opportunity for MPD to take a deep look at its policies and practices and make necessary changes.

The racial justice movement for police reform and divestment from the carceral state has created much-needed momentum in the District, and real, tangible change is now within sight. The Police Reform Commission, the D.C. Jails & Justice Taskforce reports, the renewed commitment to racial equity with passage of the REACH Act, and the soon to be released report by the Criminal Code Reform Commission have all created an opportunity for the District to make bold, necessary steps in its pursuit of shrinking the criminal legal system through both policy and budget decisions. The ACLU-DC stand ready to work with you toward that goal. Thank you.