Federal Court Says Wichita PD’s ‘Gang List’ Is Possibly Unconstitutional

Maintaining some sort of database of known criminals and their criminal associates is undoubtedly a smart thing to do. Cross-referencing detainees makes sense, especially when it comes to larger criminal organizations. Ensuring databases are up to date, both in terms of adding new associates as well as removing people who aren't connected to criminal activity, is a must. Giving people a way to contest their inclusion in these databases would seem to be key, considering the nation's largest gang databases (the no-fly" list, terrorist watchlists) provide that option, even though it took quite a bit of litigation to make this happen.

That's how gang databases should work. That's not how they actually work. In practice, they're just toys for cops capable of providing reasonable suspicion for stops after the fact. If you live or work in areas where gang activity is common, you can be added to gang databases. If any member of your extended family is in a gang, you can be nominated" to the list. If you go to a school gang members attend, you can be added to the database. Or, if a cop just feels like adding you to the list, you can be added to the list. If you've been assaulted by a gang member, you can be added to the list.

Large lists overseen by no one and filled by beat cops is no way to run a police business. Its this free rein (along with the ability to justify stops after the fact by searching a well-populated, under-moderated database for hits on whoever you've stopped) that has turned gang databases into a joke where the punchline is the violation of civil rights. Any cop database that allows infants to be considered possible gang members is something that should be considered to be completely untrustworthy and completely incapable of helping reduce gang crime.

Since most people don't know they're in these databases, they're rarely challenged in courts. Cops aren't going to tell public records requesters or residents who suspect they've been placed on one whose names are in their gang lists. But one such challenge has been raised in a federal court. And now a Kansas police department might have to toss its database in the trash. (h/t Courthouse News Service)

Four Kansas residents sued the city of Wichita, Kansas over the PD's gang list," claiming a number of constitutional violations. From the opinion [PDF] allowing the lawsuit to move forward:

The individual Plaintiffs contend they were wrongfully designated as criminal street gang member[s]" and added to the Gang List, which has negatively affected their lives in a host of ways. At this stage in the litigation, only four claims remain: Count I (due process-vagueness), Count III (procedural due process), Count VI (First Amendment-direct prohibition), and Count VII (First Amendment-chilling effect).

All four of the plaintiffs have done time or are currently doing time for a variety of charges, ranging from obstruction of justice to parole violations to first-degree felony murder. All of the plaintiffs only learned of their gang designation after their arrests. Two of the plaintiffs were rung up for parole/probation violations because they attended a family member's funeral that was also attended by known gang members.

Almost any law enforcement officer can add a person to the gang list. However, placement is determined by Gang Intelligence Officers, who determine whether the person meets enough of the criteria to be placed on this list. A person remains on the list for three years minimum. If nothing gang-related (and that's a broad area of coverage) occurs during this period, they may be removed. (But not permanently. Gang Intelligence Officers can access the gang database and see entries that have been removed." Regular officers cannot see this information.) There is no process for removal that can be initiated by someone who has been added to the list.

Despite the three-year limit, the court notes the WPD, as a rule, never removes anyone from the gang database.

WPD has removed a person's name from the Gang List only once. On that occasion, the WPD instructed a juvenile with an inactive gang member status to have good grades in school" and do well at home" for a certain time. After several months of apparent success, Chief Gordon Ramsay directed that the juvenile be removed from the Gang List.

The First Amendment claims don't stand up, the court says. While there is some concern about freedom of association, the supposed chilling effect on speech just isn't there. Either the expressive conduct (i.e., the wearing of a Phillies hat to funeral) was supposed to express that the plaintiffs were, in fact, members of gangs, or it was no expression at all. The plaintiffs have denied being gang members, so the statement made by the hat was nothing more than support for the Phillies baseball team and, as the court sees it, the law does not purport to punish people for expressing their support for sports teams.

Of course, that doesn't mean WPD officers aren't doing exactly that by drawing inferences from clothing, tattoos, etc. If that is happening (and it almost certainly is), the lawsuits need to be directed at those drawing these inferences, rather than against the city itself. The law, as written, does not direct officers to engage in this sort of conduct.

However, First Amendment claims are still in play for co-plaintiff Progeny, a nonprofit that works with current and former gang members to help them through the legal process, as well as provide opportunities and options for those leaving gangs or simply existing in areas where gang activity is common. Since some of its staff and members are current or former gang members, the organization alleges the law continues to harm it by presenting the ongoing possibility that other staff or members might be added to the WPD's gang list.

Progeny has provided some evidence having to cancel events and losing participation due to members' fears of receiving gang designations through association with designated gang members. These injuries" are continuing and actual, rather than hypothetical. Whether they rise to the level of a concrete injury or merely subjective fear is a factual issue for which evidence on both sides exists. At this stage, the Court must conclude that Progeny has created a genuine issue of material fact as to whether it has suffered an injury-in-fact.

The court also says the list and statute that created it might be impermissibly vague and overly broad. After all, gang status (according to the law) requires no more than a group of three people who may occasionally engage in criminal activity or associate with others who do. This claim moves forward, as does the as applied" claim, which will need to be put in front of a jury since the contentions raised by both sides (those suing and the WPD officers overseeing the gang list) are pretty much diametrically opposed. More information is needed to make a decision and the court refuses to reject this count before more is on the record.

The due process claim moves forward as well. The statute provides no avenue for seeking removal from the list. And the facts on the record show the WPD has only done this once in the history of the database.

So, the lawsuit moves forward. If the WPD has mismanaged this database to the extent other law enforcement agencies have mismanaged theirs, things are going to start getting really ugly as the lawsuit moves forward and discovery continues. As it stands now, the court sees enough problematic in the law to give the plaintiffs the benefit of a doubt. With any luck, the WPD will be forced to add at least some more due process to the gang list process.