Bicycling While Black

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Bicycling While Black

Federal Appeals Court Revives Michigan Lawsuit

Legal decision

By: Boyce F. Martin, Jr.

Date: June 8, 2005

Source: Bennett v. City of Eastpointe, 410 F.3d 810 (6th Cir. 2005).

About the Author: Boyce F. Martin, Jr. was appointed by President Jimmy Carter as Circuit Judge to the United States Court of Appeals for the Sixth Circuit in 1979. He served as Chief Judge from 2000 to 2003.

INTRODUCTION

Police in the northeastern Detroit suburb of Eastpointe regularly stopped young black males who were riding bicycles in the predominantly white city. While Eastpointe police denied that they used race as the sole reason to stop the bicyclers, a federal appeals court ruled that the city had engaged in racial profiling and unreasonable searches.

The Fourth Amendment declares that the people have a right to be free from "unreasonable searches and seizures." The Supreme Court has interpreted this protection, as well as the words "search" and "seizure," in different ways at different times. In the years after 1969, an unreasonable search has been defined as almost any search carried out without a warrant.

Eastpointe had experienced a series of bicycle thefts by young black men. The police received instructions from their chief to investigate any black youths riding through Eastpointe subdivisions. While such an admission by the police appeared to reveal that they had engaged in illegal conduct, police also looked for suspicious behavior in deciding whether to stop young men.

The ACLU argued that racial profiling was especially dangerous to apply to children because it held the potential of stigmatizing them for life. The ACLU sought $21 million in damages—$1 million for each person suing Eastpointe. The organization also asked the U.S. District Court to appoint someone to monitor the city's police practices. Eastpoint police were also accused of singling out black motorists for traffic stops.

PRIMARY SOURCE

I.

Eastpointe, formerly East Detroit, is a suburb adjacent to Detroit. The 2000 census figures indicate that Eastpointe is 92.1 percent white and 4.7 percent African-American. Detroit was found to be 12.3 percent white and 81.6 percent African-American. Eight Mile Road, made famous by the popular movie "8 Mile" divides the two cities and is commonly known as a racial dividing line. The plaintiffs claim that they were subjected to racial discrimination when they crossed Eight Mile Road into Eastpointe. Against the backdrop of each individual Fourteenth Amendment claim is reference to the "DeWeese Memorandum." This memorandum was drafted by Eastpointe's current Chief of Police, Fred DeWeese, following a meeting he had with Charles King, Sr., the plaintiff and next friend to his minor-son-plaintiffs in King. In that memo, distributed only to the city manager, DeWeese wrote that when he was a Lieutenant, "[f]rom May of 1995 to August of 95 … I was assigned as a Shift Commander on the Afternoon Shift…. My instructions to the officers were to investigate any black youths riding through our subdivisions…. I would expect that our officers would investigate younger black males riding bicycles."…

Here, the plaintiffs rely on the DeWeese Memorandum as the policy that wrought the constitutional violations upon them. For the plaintiffs to prevail, therefore, they must demonstrate that DeWeese had policymaking authority. The plaintiffs have failed, however, to account for the fact that at the time of the instructions, now-Chief of Police DeWeese was simply a lieutenant, and not a policy-making official. [citation omitted] ("DeWeese was not Chief of Police during the time these earlier bike stops occurred, so his action or inaction could not result in ratification of a policy behind those incidents."). The plaintiffs argue that when DeWeese became Chief of Police, he did not rescind his earlier instructions, and therefore the Memorandum became city policy. We decline to adopt such a broad reading of the Memorandum without any evidence to support the assertion. The Memorandum, though arguably discriminatory, was only memorializing prior and limited instructions, made to four or five officers under his command on an afternoon shift. There is no evidence whatsoever, that after becoming Chief of Police, DeWeese renewed these instructions or that they motivated the conduct of the officers, who were not on the afternoon shift, years later. In sum, we hold that the DeWeese Memorandum did not constitute official city policy and therefore affirm the district court's grant of summary judgment in favor of the City of Eastpointe….

C. INCIDENT # 5, APRIL 18, 1996

Incident # 5 occurred on April 18, 1996, involved plaintiff Wilson and his two friends, non-plaintiffs Johnson and Traylor, and defendant-Officer Lulko. The plaintiff alleges that he and his friends, all on their own bikes, were riding along the sidewalk at a normal pace, not doing tricks or interfering with traffic, but once they crossed Eight Mile Road, Officer Lulko pulled his patrol car into an intersection in front of the youths and blocked their path. Wilson alleges that Lulko then interrogated them about what they were doing and where they were headed, that Lulko patted Wilson down, and asked who owned the bikes and if they went to school around there.

Officer Lulko asserts that he observed three bike riders riding between parked vehicles, jumping the curb in front of businesses, and allegedly interfering with traffic in violation of state law. Because this allegedly observed activity raised safety and theft concerns, Lulko stopped the youths. According to Lulko, he never left his vehicle, which contradicts Wilson's claim that Lulko patted him down. Lulko states the encounter lasted five minutes during which he explained the safety concerns and provided the youths with directions.

1. § 1983 Racial Discrimination Claim

[W]e reverse the district court's grant of summary judgment in favor of the defendant-officers.

2. § 1983 Fourth Amendment Search and Seizure Claim

… [T]here are genuine issues of material fact in dispute as to both whether Officer Lulko had reasonable suspicion to stop the plaintiffs and whether Officer Lulko frisked Wilson. When viewing the facts in the light most favorable to Wilson, it is clear that summary judgment for the defendants was inappropriate.

… [W]e affirm the district court's grant of summary judgment in favor of Chiefs DeWeese and Danbert, as well as the City of Eastpointe to the extent the plaintiffs have alleged a Fourth Amendment claim against those parties….

E. INCIDENT # 8, APRIL 29, 1997

Incident # 8 occurred on April 29, 1997, and involved plaintiff-brothers James and Jermaine Shaffer, non-plaintiffs McCree and Loker, and defendant-Officer Lulko. The youths rode to Arbor Drugs to buy a carton of milk for the Shaffers' mother and were on their way back to the Shaffers' house, riding down Brock Street in Eastpointe, a few blocks from the Detroit border, when Officer Lulko turned his car in front of the youths and blocked their paths. Officer Lulko exited the car and ordered the boys to get off their bikes and put their hands on the car. Three of them submitted, while James Shaffer did not stop and instead dismounted his bike and walked two blocks toward Eight Mile Road. As he was about to cross back into Detroit, another Eastpointe officer pulled his patrol car in front of James, threw him against the car, handcuffed him, and forcibly detained him in the patrol car. During this time, Lulko ordered the youths to place their hands on the hood of the police car and conducted pat-down searches of the other three youths and told them they should have receipts for their bikes when they come over "Eight Mile" into Eastpointe. Eventually, the boys were released, but as they walked back toward Eight Mile Road, the officers followed behind in the police car until they crossed back into Detroit.

Officer Lulko claims to have encountered four bicyclists riding double, which is in contrast to the youths' claims that they were all riding their own bikes, and would conflict with the fact that James got off of his own bike and continued toward Eight Mile disregarding Lulko's order to stop. The defendants also note that James admits to riding "four abreast" through side streets, which would be a violation of state-law.

1. § 1983 Racial Discrimination Claim

… [W]e reverse the district court's grant of summary judgment in favor of the defendant-officers. Moreover, in this instance, summary judgment was particularly inappropriate because of the alleged racial tones to the officers's conduct—specifically, Officer Lulko's statement that the youths should have receipts for their bike when coming into Eastpointe and the officers' conduct in driving their police cruisers behind the youths until they crossed over Eight Mile back into Detroit. These allegations at the very least raise a genuine issue of material fact as to whether the stop was more burdensome or intrusive than it otherwise would have been because of race. We hold that a genuine issue of material fact does exist as to whether race contributed to the stop and intrusions during the stop, and therefore reverse the grant of summary judgment in favor of Officer Lulko.

2. § 1983 Fourth Amendment Search and Seizure Claim

While it may be disputed whether the youths were riding double or whether they were riding four abreast down the street, either version amounts to a violation of state law, see Mich. Comp. Laws §§ 257.658, 257.660, and therefore provides reasonable suspicion for the initial stop. Furthermore, James failed to obey a lawful order of a police officer, a violation of Eastpointe Ordinance § 658.03, and that justified stopping him. The parties do not dispute that a stop within the Fourth Amendment occurred. Because Officer Lulko had reasonable suspicion for the initial stop, the only remaining issue is whether his actions during the stop were justified. For the reasons discussed above in each of the other incidents, we reverse the district court's grant of summary judgment in favor of the defendants with regard to Jermaine Shaffer. The officers point to no facts that would justify a pat-down search of Jermaine….

F. INCIDENT # 10, JUNE 27, 1998

Incident # 10 occurred on June 27, 1998, and involved plaintiff Bush and his two friends, non-plaintiffs Thrasher and Ware, and defendant-Officer Magrita. All three youths allege that they were riding on separate bikes home from the Eastland Mall. While riding one block north of Eight Mile Road into Eastpointe, the youths were pulled over by Officer Magrita, who pulled behind them and flashed his overhead lights. The defendants allege that two of the youths were riding double. Magrita states that he observed the youths riding bikes behind closed businesses. After driving by and making eye contact with the youths, he continued on his way. Five minutes later he returned to see the youths still riding in the same place.

Bush alleged that Magrita asked whether the youths knew "anything about people coming across Eight Mile and stealing bikes on this side of Eight Mile." Bush also alleged that Magrita made a joke about a "monkey" and ordered the youths to get off their bikes and walk "back across Eight Mile," and waited to observe that they do so.

1. § 1983 Racial Discrimination Claim

… [W]e reverse the district court's grant of summary judgment in favor of the defendant-officers….

It goes without saying that we both recognize the risks and appreciate the sacrifices that law enforcement officers make on a daily basis. We are compelled to comment here, however, that we are both frustrated and concerned with what appears to be consistent disregard for basic Fourth Amendment principles by the Eastpointe Police Department and its officers, and an apparent misunderstanding by counsel as to the legal requirements for Terry stops. Counsel may shout "officer safety" until blue-in-the-face, but the Fourth Amendment does not tolerate, nor has the Supreme Court or this Court ever con-doned, pat-down searches without some specific and articulable facts to warrant a reasonable officer in the belief that the person detained was armed and dangerous. The Supreme Court has, in interpreting the Fourth Amendment, struck a balance between the justifiable concern for officer safety when confronting an individual and the substantial individual interest in being free from unreasonable intrusion. The Framers' concerns and clear intent to protect individuals from arbitrary government intrusion was enshrined in the Fourth Amendment to prevent situations such as those alleged here—officers, having no reason to fear for their safety, may not require citizens, whom they have not arrested, to stand up against gates or place their hands on police cars, and submit to searches. This has long been the law.

For the reasons given above, we AFFIRM the district court in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion…. Furthermore, we REVERSE and REMAND for further proceedings the following additional claims: … Incident # 5: The Fourth Amendment claim for the allegedly unconstitutional stop and unconstitutional pat-down searches by Officer Lulko; … Incident # 8: The Fourth Amendment claim for the allegedly unconstitutional stop and pat-down searches by Officer Lulko with regard to Jermaine Shaffer; Incident # 10: The Fourth Amendment claim for the allegedly unconstitutional seizure of Bush; … On all other claims and with respect to all other defendants, we AFFIRM the district court's grant of summary judgment.

SIGNIFICANCE

Racial profiling of African American and Latino men is assumed to be widespread, but the tactic is difficult to prove. The federal government and the states only began studying the problem after the millennium, following numerous complaints by blacks who believed that they had been targeted for "driving while black." The issue has become an increasingly volatile political issue.

According to a U.S. Department of Justice study conducted in 2002 with 77,000 Americans over age 16, black, Hispanic, and white motorists are equally likely to be pulled over by the police. Theses reports give support to the argument by police officers that they stopped minorities for legitimate reasons. However, blacks and Latinos are much more likely to be searched, handcuffed, arrested, and subjected to force or the threat of it. Blacks were more likely to be arrested than whites, while Hispanics were more likely to be ticketed than blacks or whites.

Several states have investigated possible racial profiling within their borders. New Jersey discovered in 2005 that black drivers were more likely to be stopped than white drivers on the New Jersey Turnpike. In 1999, the New Jersey police had admitted to targeting minority motorists for traffic stops and agreed to federal monitoring aimed at ending the practice. A 2005 study of two million traffic stops in Illinois discovered that black and Hispanic drivers in large cities were pulled over by police at a rate that far exceeded their share of the local population. State lawmakers in Illinois, at the urging of minority groups complaining about profiling, required every police department to record details of all 2004 traffic stops. In 2005, Missouri statistics showed that for the fifth year in a row, black motorists were stopped proportionately more often than whites.

The events of 2001 made many Americans support racial profiling in some instances, as only Arab men were involved in the terrorism of September 11. A similar fear of attack has led many Americans to approve of racial profiling of minorities. Since more minority members than whites fill the prisons, some people believe that minorities are more likely to be criminals. This point is hotly challenged by minorities and by civil libertarians such as the American Civil Liberties Union (ACLU). Kary Moss, ACLU of Michigan Executive Director stated that the Sixth Circuit ruling "is a clear sign that the court will not tolerate race-based discrimination and reinforces the constitutional principle that people cannot be searched by police in the absence of evidence of criminal activity."