This story originally appeared on PlanPhilly
It was a cold January evening in North Philadelphia when police officers pulled over Giovanni Hatter in his minivan. He was told he missed a stop sign. When the officers ran the high school teacher’s record, they noticed he had an expired license to carry a gun. Hatter told the officers his gun was at home.
But they still ordered him and his three passengers to get out so they could conduct a search. He was escorted to the back of a patrol car while the teen boys he was driving home after a mentoring program emptied out to wait on the curb. As Hatter sat in the patrol car, he watched officers root around in his vehicle. He was in plain sight of the boys, who were relying on him for a ride home from a juvenile justice program.
The episode was humiliating. Yet Hatter knew he had to hold back his resentment.
“I was really polite to the officers,” Hatter recently recalled of the 2013 incident. “I’m trying to model that to the young men: Be polite to police and chances are, you treat them with respect, and they give it back.”
The 14th District officers, Colin Goshert and Jeffrey Thompson, insisted that Hatter’s gun must be in the minivan, he remembers. It wasn’t. Eventually, the officers allowed Hatter and the boys to carry on with their night. The interruption from police, though, altered the mood. A harsh quiet overtook the minivan.
“On the way home it was pretty silent,” said Hatter, 47, who teaches high school in Camden.
Hatter filed a complaint against the officers with the Philadelphia Police Department’s internal affairs department. Ultimately, the PPD dismissed his allegations because, the file reads, they were unable to find corroborating witnesses.
Traffic stops — the most common reason for police to interact with the public — are a principal point in national debates about race and policing. High-profile fatalities that began with a police stop, such as Sandra Bland in Texas and Philando Castile in Minnesota, have raised awareness of longstanding racial disparities in Philadelphia and other cities. But very few police departments have been found guilty of systematic racial profiling. In Philadelphia, the issue has never gotten the front and center attention of reformers.
Until now. Mike Mellon, an attorney working for the Defender Association of Philadelphia, says that Hatter’s experience represents a larger systemic problem plaguing the city, especially areas like the majority-black 14th District where Hatter was stopped. In this section of Northwest Philly – comprising some of the most economically troubled sections of the city as well as affluent enclaves such as Chestnut Hill – black drivers are more than three times as likely to be searched than white drivers, according to statistical analysis done for the public defenders group. There are more vehicle stops in the 14th District than almost any other part of the city. Out of all 22 police districts in Philadelphia, vehicle stops lead to arrests in the 14th District less often than any other.
“Everyone knows what ‘driving while black’ is in general, but I don’t think anyone realizes what is actually going on in the city,” said Mellon, who recently initiated a legal challenge alleging that officers in the 14th District routinely make racially motivated, unconstitutional stops.
After years of battles over stop-and-frisk practices, court-ordered reforms have changed how Philadelphia police search people. The result is fewer people stopped and patted down on the streets, with many more of the interactions that do happen stemming from a legal justification. Mellon thinks the same kind of scrutiny should be applied to stops happening on the city’s roads.
“The police department is using [stops for] traffic violations to invade the privacy of citizens in the hope of finding something illegal,” Mellon said. “People of color and neighborhoods of color are facing this intrusion at much higher rates than white people or white communities.”
Mellon’s quest to prove that officers racially profile drivers is anchored to an individual criminal case against a man named John Berry. Officers pulled Berry over in the 14th District for a minor traffic violation, and found illicit drugs when they searched his car. Mellon maintains that the stop was unconstitutional, and so the evidence the officers found should not be admissible in court. To win this argument, he must prove that the Philadelphia Police Department systematically targets black and brown drivers, a violation of civil rights.
The alleged racial profiling in the 14th District, his data show, is a citywide problem. Although Philadelphia is about 43 percent black, police stop black drivers nearly 66 percent of the time, according to vehicle stop figures Mellon compiled. These figures, which have never before been closely analyzed, are comparable to the latest stop-and-frisk numbers, which show that roughly 71 percent of the pedestrians stopped are black. Before the the court-ordered reforms were initiated, black residents accounted for nearly 80 percent of stops.
Overall, Census data show that the 14th district is about 80 percent black and some 91 percent of vehicle stops are of black drivers. But when you break down the police district by service areas, of which there are four in the 14th, an even sharper racial disparity emerges. Within the two majority-black service districts that encompass East Germantown and Logan sections, almost all vehicle stops in those parts of the community are of black drivers.
But in the other two portions of the district – including parts of West Oak Lane and Chestnut Hill, where only about half of the population is black – some eight out of 10 of all police vehicle stops target black drivers.
But even though 80 percent of police stops involve black drivers, white drivers are 40 percent more likely to be ticketed. Mellon points to that gap as evidence that cars with black occupants are routinely being pulled over for no reason.
The Philadelphia Police Department declined to comment on Mellon’s case, but Philadelphia Mayor Jim Kenney said city officials are reviewing the evidence presented in Mellon’s legal filings.
“The city takes allegations of racially motivated stops seriously,” said Mike Dunn, spokesman for Kenney.
Dunn said since the court order to eliminate illegally motivated stop and frisks came down, the city’s police officers have cut down on their overall number of stops and reduced the frequency of random stops. On whether more needs to be done to address alleged racial profiling of drivers, Dunn said the Defender Association’s analysis “warrants further review while the court considers its relevance to the case at hand.”
A spokesman for the city district attorney’s office declined to comment, citing pending litigation. But it’s likely District Attorney Larry Krasner is watching the case closely. In a rare prosecution, Krasner’s office last September charged two 14th District officers with illegally detaining a man and searching his car without cause. Less than two months later, a judge tossed out all the charges, citing a lack of evidence.
“Are we going to lock up every cop every time there’s a bad search?” defense attorney Fortunato Perri Jr. said before the judge, according to the Philadelphia Inquirer.
Overly tinted windows and a license plate that wasn’t fully visible were the alleged infractions that got John Berry pulled over on March 17, 2017. According to Mellon, the officers — Colin Goshert, David Omlor, and Jennifer Skrocki — immediately ordered Berry to step out of the vehicle, before checking his license or registration. They reported smelling marijuana, so proceeded to search his car, where they uncovered six grams of marijuana, unspecified amount of cocaine and pills suspected to be oxycodone. They also found $104, authorities say.
Berry was arrested. Prosecutors charged him with possession, intent to deliver and other drug-related charges. Mellon isn’t arguing that his client didn’t have illegal drugs. Nor is the lawyer arguing that Berry’s windows weren’t tinted too dark, or that his license plate wasn’t obscured. Instead, he makes the case that Berry wouldn’t have been pulled over for these violations if he were white. Mellon’s using this “selective enforcement” defense as a way to try to open up the Philadelphia Police Department to wide-ranging discovery, where officials would be forced to turn over a trove of documents, which he claims would reveal systemic racial profiling in vehicle stops.
In a subpoena filed to the police department and still awaiting a judge’s approval, Mellon cites 46 other examples of black drivers in the 14th District who say they were racially targeted. The accounts were drawn from internal affairs records Mellon obtained.
The officers who arrested Berry rarely stop drivers who aren’t black, Mellon’s figures show. The Defender Association’s report shows that from March 2014 to September, 98 percent of the drivers that Goshert pulled over were black; 97 percent for Omlor, and 98 percent for Skrocki. Their 14th District colleagues had similar track records.
But proving that officers pull over more black drivers is not the same as showing that officers pull drivers over because they are black. To win a legal argument that police deliberately target certain groups of people requires a “very high burden of proof,” said civil rights attorney David Rudovsky. “You’ve got to show actual intent. Nobody admits that, right?”
Mellon is trying to force the police and district attorney’s office to turn over records from the past five years of all citizen complaints and internal investigations that allege racial profiling against officers in the 14th and neighboring districts. Lawyers for the city are objecting, saying some of the information Mellon is after is “patently irrelevant, overbroad and unduly burdensome” to produce, according to the city’s motion filed to the court in response to Mellon’s request.
But even if Mellon gets the record and finds the material he seeks, there is no guarantee that a judge will be sympathetic to the Defender Association’s argument. Courts have historically sided with an officer’s right to pull a driver over in disputes over alleged racial profiling.
In a landmark U.S. Supreme Court case, Justice Antonin Scalia penned a 1996 opinion for the case Whren v. United States. In it, Scalia wrote, with a unanimous court behind him, that so long as an officer observes a traffic violation, any stop is fair game under the Fourth Amendment — regardless of underlying motivations. So any evidence they find of a more serious crime, such drug dealing, is admissible in court. “Even if they decided only to stop black people and nobody else, that might be an equal protection issue but it wasn’t a Fourth Amendment issue,” said Rudovsky.
Civil rights advocates have criticized the 1996 ruling, saying it opens the door to racial profiling.
Mellon and his colleagues could also follow the path of a major New Jersey case that relied on the state constitution — as well as extensive data collection. The 1996 decision, State v. Soto, said that New Jersey state troopers were intentionally pulling over drivers of color to search for drugs — establishing racial profiling as a legal premise, and overturning more than 150 drug cases. The New Jersey State Police were put under a federal consent decree until they reformed their practices. Which is to say, lawyers in New Jersey have set precedent, although few have been able to replicate the success.
Some of the most forceful disagreement about Mellon’s analysis involves the kind of stuff academics and lawyers regularly spar over: methods and assumptions
One assumption in Mellon’s numbers is that most drivers pulled over in the 14th District live within it. This is key to proving that black drivers are being stopped by officers at a disproportionate rate
Take the third police service area in the 14th District, for instance. According to the analysis from the defender’s statistician, 51 percent of the population is black, yet 82 percent of vehicle stops are of black drivers. But the analysis doesn’t take into account how many of the people on the road are 14th District residents and how many are just passing through.
In the seminal Soto case, an expert surveyed 42,000 cars over 21 randomly selected times in June 1993 on the New Jersey Turnpike and found that black and white drivers break traffic laws at the same rate. But nearly half of all stops on the highways were black drivers, even though just 13 percent of cars had a black occupant. A judge ruled that that the only logical conclusion, then, is that black drivers were being targeted by state troopers.
David Harris, a University of Pittsburgh law professor who has written extensively on racial profiling in traffic stops, called Mellon’s method “problematic.” He says relying on U.S. Census figures to guess the driving population “won’t necessarily give you any reliable results.”
“If a police district has a major-ish surface arterial road going through it, driving population is likely to differ from residential population, perhaps by a lot,” Harris said, noting that driving populations also fluctuate depending on the time of day.
“You can’t predict the direction of the (likely) error in the Census-based analysis. It may overestimate or underestimate bias,” Harris said.
That point doesn’t bother Mellon. He trusts the Defender Association’s analysis.
“Doing the analysis like Soto doesn’t make sense in our case. We’re talking about an entire police district, not just one highway,” Mellon said.
“Nearly every driver is committing a traffic violation at all times.”
Pennsylvania law provides a seemingly endless number of justifications for pulling a driver over. The code lists 69 different sections on vehicle violations. And many of the rules hinge on judgment calls. For instance, if someone is not driving a “reasonable and prudent” distance behind another car, it is a violation.
An officer can stop a driver caught using their turn signal less than 100 feet from a turn. Fail to reach a “complete stop” before a stop sign? That could lead to a stop.
A tinted car window is often used by officers to justify a vehicle stop. The state vehicle code says if a tint is too dark to see a person through the car windows, stopping someone on the road is permitted.
Pennsylvania motor vehicle regulations also ban driving with anything hanging from the rearview mirror that can “obscure or impair” someone’s vision.
“Nearly every driver is committing a traffic violation at all times,” wrote Mellon in a court filing.
It took the Pennsylvania Superior Court in 2010 to clarify that having a pine tree-shaped air freshener hanging from a car’s rear-view mirror is not a legal basis for stopping someone, as an officer had done. The appeals court threw out the case against the driver after establishing that the vehicle stop was unlawful.
“Officers can allege that there was a minor traffic violation that never occurred, but the real reason is profiling,” said Paul Hetznecker, a Philadelphia civil rights attorney. “And they learn, if it works once, they do it over and over and over again.”
The situation becomes even more dicey for defendants in Philadelphia, Hetznecker said, since city police patrol cars are not equipped with dash cameras.
“How do you undermine the testimony of an officer without independently verified dash cam footage?” Hetznecker said. “The vehicle code gives police unfettered discretion to conduct full-blown investigation of vehicles.”
The prolonged dispute over what evidence the city and district attorney’s office should be compelled to gather for Mellon will come to a head next month when a judge weighs both arguments. Mellon says it’s as important to his clients that the message gets out as it is to win the case. “I think it is important that the public is aware of the problem so that there can be a solution.”
Another person eager for change is Giovanni Hatter. Five years after the incident with the teen boys he was mentoring, he again filed a complaint alleging officers in the 14th District violated his civil rights. Just before the new year, he was driving his minivan in the district after finishing a shift at his mentoring program when he saw the red and blue lights flash, he said. Officers accused him of running a red light, which he denies. He wasn’t issued a citation, but before he was let go, police searched his car, he says.
“I drive all over the city — Overbook, West Philly, South Philly, but when I get to that part of town, there’s, like, a target painted on me,” he said. “I’m trying to be a role model. I’m a public school high school teacher. I’ve been to college. I’ve got a bachelor’s degree. I got a master’s degree. I’m here to try to make a difference, but no, they think I got a drug, I got drugs,” he said. “They think I got something else going on. Some type of hidden agenda. It definitely needs to stop.”
Hatter has a meeting to discuss the complaint with the police internal affairs department on Jan. 21 — Martin Luther King Jr. Day