Trump, Deportations, and “Gang Members”

Latino youth beware!  You may be a gang member and not even know it!  And no, you might not be able to dispute that label if it is made by ICE. Welcome to America, or rather….. Farewell.

President Trump’s Executive Order on Immigration and his Implementation Memo dated 2/20/17 are aimed to “take the shackles off” of the nation’s immigration enforcers. According to Sean Spicer, the EO makes it clear that “the No. 1 priority is that people who pose a threat to our country are immediately dealt with” (New York Times  2/21/17). Among others, this means gangs, or at least people ICE decides are gang members. 

And that’s the rub. Bureaucratically law enforcement has a process to officially label a youth a “gang member.” There are checklists like this one:

However the judgements are highly subjective. In the recent highly publicized case of Ramirez Medina, ICE agents apparently mis-identified a tattoo as “gang related” and  although Ramirez was a DACA protected Dreamer, held him as a gang member and began deportation proceedings.

Law enforcement agencies have a long history of stereotyping and mis-labeling minority youth as gang members. In  Los Angeles, California Supreme Court Justice Chin questioned official gang identifiers, pointing out that “the City would consider a person to be a member of a Sureño gang if, for example, that person on two occasions wore baggy pants, blue clothes, or 'Los Angeles Raiders' garments.” In Denver police created a data base that classified an astounding two out of every three black youth as gang members. 

As one law review article put it, police officers and ICE agents already “exercise virtually unchecked discretion” when it come to gangs.  This means racial stereotypes can be given free reign.  A deportation case I consulted in demonstrates how dangerous stereotypes plus  ICE's “unchecked discretion” can be.  For obvious reasons I changed the name of my client and masked some of the circumstances.

Dante Menzies was a 15 year old high school student. He was a rebel, and he and two friends formed a group called “Cholo or Die.”  They spray painted it on walls and had hats made with “COD” letters. One of Dante’s friends got into a tussle with a teacher.  Dante intervened and punches were thrown. Dante was arrested, and then the astounding happened.

The local police claimed out of the blue that Dante was a “Sureño,” and COD, Dante's gang of three,  was a chapter of MS-13.  He was turned over to Homeland Security and subject to deportation. His lawyer called me and I interviewed Dante via Skype, reviewed the documents, and talked to local police officials. My question was simple: how did the officer determine Dante was a MS-13 member? 

The checklist above is from Dante’s case. Here is the evidence: the graffiti on buildings was Dante and his two friends writing “COD” on the school bathroom walls.  Dante apparently was determined to be MS-13 because he wore the color blue..... and get this, the only blue he had on were his blue jeans. The arrest for a violent crime was the juvenile adjudication of delinquency in the scuffle which resulted in a couple of months in detention. 

The police department refused to explain what “correspondence" named Dante a gang member.   My guess is that the local Gang Investigators Association sent some background information or this referred to memos within the file between local officers.  Police departments or ICE do not have to disclose “gang intelligence” information as with other evidence subject to discovery. In other words, like in this case, ICE can allege gang membership as a basis to deport and never reveal how they drew that conclusion.

I have no way to know if 15 year old Dante was actually a secret MS-13 member.  But the evidence the police presented led me to conclude that Dante’s “MS-13” membership was most likely made up by the officer so deportation proceedings could begin. It was a false generalization that was necessary to justify punishing Dante, as in "Aren’t most of those Mexican kids gang members anyway?"  Why not just make up the evidence — who will know? 

Well the attorney called their bluff and I made an aggressive case that there was no evidence to even assume Dante was a MS-13 member.  He was spared deportation but not every youthful immigrant will enjoy such advantages.

I think Sean Spicer got it right. Trump’s order is meant to “take the shackles off” ICE agents, to give them even greater discretion to act on their hunches and biases in order get “them” out of the country. The facts be damned.

Gang members, along with Muslims, are the quintessential “them” to the virtuous “us” of the all-white alt-right.  Being in a gang is not illegal.....yet.  But even the allegation of gang membership puts Latino youth at risk of deportation.  This over-broad net of ICE predates Trump and former President Obama can't escape culpability. The fight against demonization in all its forms is an on-going struggle for us all.

Hufstader, Rebecca A. 2015. "Immigration reliance on gang databases: Unchecked discretion and undesirable consequences." New York University Law Review 90:671-709.

Leyton, Stacey. 2003. "The New Blacklists: The Threat to Civil Liberties Posed by Gang Databases." in Crime Control 

            and Social Justice: The Delicate Balance., edited by Darnell Felix  Hawkins, Samuel L. Myers, Randolph N. Stone,. Westport, CN: Greenwood Publishing Group.

Stereotypes Can Kill

March 24, 2015

Yesterday, the Milwaukee Fire & Police Commission upheld the firing of former MPD officer Christopher Manney after he shot and killed Dontre Hamilton last April 30.  I spent four hours one day observing the hearing.  What was very clear and disturbing was that the decision whether to sustain or overturn MPD Chief Flynn’s firing of Manney was made on technical grounds of whether Manney followed MPD rules and training.  The entire hearing turned our attention away from the most obvious and important aspect of this killing: one more young black man killed by police.

Manney was fired on two grounds. First, he was accused of stereotyping homeless people and acting based on a general conception that homeless people had weapons, knives and such.  In the first count of the charges, Manney’s statements to police investigators had not included any evidence that these stereotypes applied to Dontre. His pat down of Dontre thus violated policy and MPD rules. Based on Manney’s own words, there was no reason to pat Dontre down, and doing so led to a confrontation that took Dontre’s life. 

In social science terms, Manney was fired for being guilty of the ecological fallacy,  mechanically applying characteristics of a group to a specific case.  “Homeless people often carry weapons; therefore Dontre carried a weapon.”  Manney was found guilty of using stereotypes.  And stereotypes, we discover once again, can kill. And Dontre wasn’t even homeless. 

The second count was based on Manney’s response to count one. Once Manney realized he had not made a case to police investigators for Dontre’s dangerousness, he changed his tune.  He said he actually had feared for his life because of Dontre’s aggressive reactions, including a kicking motion and a “thousand yard stare.” If this was true, the charges read, then Manney again violated rules and policy by not asking for backup. 

The Chief repeatedly has said that Manney’s shooting of Dontre Hamilton was not a criminal act. The shooting was deemed justified by an officer being in fear for his life. The firing was not framed as a homicide, but as a technical rule violation, one that had the “unfortunate” consequence of taking a human life, i.e. Manney shooting Dontre 14 times. In our celebration of Manney’s firing we can’t lose sight of the fact that Manney is a free man and Dontre lies dead.

Flynn himself has radically changed how he framed the shooting. The police union attorney, in his cross examination of Flynn, played a video of the press conference Chief Flynn had given the day after the killing. At that time Flynn decried deinstitutionalization of the homeless and mentally ill which made controlling them a police matter. He complained how dangerous the mentally ill are and how forcing police to deal with violent homeless men is bound to result in situations like the death of Dontre Hamilton. The police are overwhelmed, Flynn said in his best liberal manner, and until broader social policies are adopted, killings of people like Dontre Hamilton are inevitable.  The day after the shooting Flynn’s chosen frame was to defend his officers against crazed, dangerous, mentally ill homeless people— like Dontre. 

Oh yes, and Dontre was black. You wouldn’t know it from the hearing, from the union or city attorney or Chief Flynn.  All mention of race was missing from testimony even though racist police violence oppressively and persistently hangs over this and many other cities. To frame means your attention is focused on what is inside the frame and you are directed away from considering what is outside. I listened as the legalistic words of both sets of lawyers and the judge expunged race from the proceedings.  

The frame of this hearing was only whether Manney abided by MPD policy or not.  A policy, I might note that has been relied on by police and city officials to justify dozens of police killings of Milwaukee black men over the years. They didn’t need to shout “THIS IS NOT ABOUT RACE!”   They just ran the hearing as if race didn’t matter.  Race was outside the frame. Once our attention is focused on what is inside a frame, i.e. the police rules, we don’t need to recognize the shadow of a tombstone in the room, one more unarmed black man killed by police. Everyone seems to agree: “They” are dangerous and “they” are the homeless but we all know who else “they” are. The power of framing lies in what is said but also what is unsaid. 

Flynn’s day after “police-are-facing-violent-homeless-people” framing was very different from his technical defense of his firing decision many months later.  Why the change? In the months that followed Flynn’s initial defense of Manney, the country’s streets erupted in protest over the deaths of Michael Brown and Eric Garner. Do you think the thousands marching in Ferguson and New York had any influence as Milwaukee wondered whether they also will face protests, rioting, and violence?  Do Flynn and Milwaukee's Mayor Barrett watch the news? Without the protests filling our TV screens and the Hamilton family’s brave stand,  Dontre’s death would likely have been dealt with routinely and Manney would have been returned to duty. 

I think the Chief’s firing of Manney and the Fire & Police Commission action was a concession to our movement.  But we also need understand it as a conscious attempt to divert attention away from racist killings by Milwaukee Police.  #BlackLIvesMatter remains our powerful counter frame.