Black Lives Matter DC’s Battle to End Stop-and-Frisk In The Nation’s Capital

M.B Cottingham, a Southeast Washington, D.C., resident who works on an ice cream truck, has been stopped and frisked aggressively several times by the police and has even been beaten on several occasions. But the assault that occurred in September 2017 was more humiliating than anything he had experienced.

While Cottingham and his friends sat on folding chairs on a public sidewalk, a marked and unmarked police car pulled up and officers questioned him about an open container of alcohol. Cottingham, who is Black, consented to a search and Officer Sean Lojacono, who is white, grabbed Cottingham’s scrotum and repeatedly stuck his thumb into his anus. “He stuck his finger in my crack,” Cottingham protested. “I am a man.” The officer handcuffed him and probed him several more times. One of Cottingham’s friends captured the entire encounter on video.  

The Cottingham case “represents how toxic interactions can be between D.C. officers and members of the community, particularly for Black individuals who are presumptively considered suspect for any reason or no reason,” Scott Michelman, legal co-director of ACLU-DC, who represents Cottingham in a federal civil rights lawsuit filed against the city in July, told The Appeal.  

But it’s impossible to know how many Black and brown individuals have been stopped and frisked in the city. While the police arrested 33,383 in 2016 alone, they documented only 23,325 stops from 2010 to 2016. This was why Michelman, Black Lives Matter DC, and the Stop Police Terror Project-DC worked with the D.C. Council to construct the stop-and-frisk data collection provision of the Neighborhood Engagement Achieves Results (NEAR) Act, legislation that went into effect in June 2016 to reduce violence in the city.  The enactment of NEAR, however, did not yield transparent practices with stop-and-frisk data.

“The D.C. police knew what the data would be used for,” Michelman said, “and were scared of what it would show.”

“Obfuscation and lies” from the city on data leads to a lawsuit

So, after two and a half years of what Michelman calls “obfuscation and lies,” ACLU-DC, BLM DC, and Stop Police Terror Project sued the city. Their legal complaint filed in May in Washington, D.C. Superior Court against Mayor Muriel Bowser, Police Chief Peter Newsham, and Deputy Mayor Kevin Donahue, alleges that the city has “dragged its feet, indicating at best recalcitrance and at worst institutional antipathy towards the [data collection] law.”

The limited stop-and-frisk data available suggest the fear is justified: from 2010 to 2016, 81.6 percent of police stops involved Black people, while a report from the Office of Police Complaints, an independent body that reviews and investigates resident complaints, found that 89 percent of use-of-force incidents by police involved a Black individual from Oct. 1, 2016 through Sept. 30, 2017.

Black residents now constitute about 47 percent of D.C.’s total population. But even when it was a majority Black city in the 1960s and 1970s, it was a “a petri dish for laws focused on controlling the mobility of young people, particularly those transporting themselves from poor African American neighborhoods into more affluent white ones” according to researcher John Bloom. In the 1990s, under then-D.C. U.S. attorney Eric Holder, a disproportionate share of  residents of color were subjected to the feds’ “Operation Ceasefire,” which law professor James Forman described as “basically stop-and-frisk of cars.” Today, D.C. and Chicago have the largest police forces per capita among big U.S. cities, in part because of funding from the Law Enforcement Assistance Administration (LEAA), a federal agency created in the 1960s under the Justice Department. During the Nixon era, one- eighth of the programs’ budget was given to the city. (LEAA was dissolved in 1982.)

The data collection provision of the NEAR Act mandates that D.C. police officers maintain records on each stop and frisk by filling out 16 data points after each instance, including the race or ethnicity of the individual and reason for the stop. D.C. Council provided the police department with $150,000 to ensure that the data collection, which the council says is “vital for transparency and accountability,” began within a reasonable time frame.

“The D.C. police knew what the data would be used for, and were scared of what it would show.”

Scott Michelman, legal co-director of ACLU-DC

ACLU-DC learned of the city’s lack of compliance with the NEAR Act after it filed a Freedom of Information Act (FOIA) request on Feb. 10, 2017, for all data collected since its passage. Two months later, the D.C. police department responded to the request by stating that “although the NEAR Act became law, it had not been implemented as of the date of the search.”

Chief Newsham justified the delay by claiming other “mission critical issues” took priority over the data collection requirement.

On Jan. 30, Mayor Bowser’s office released “A Fair Shot: A Toolkit for African American Prosperity,” a report that outlined the city’s poverty-reduction programs; it also stated that the NEAR Act was “fully implemented.” However, at a D.C. Council budget oversight hearing in March, Deputy Mayor Donahue indicated that the police hadn’t begun the data collection because of insufficient funding.

A month later, Bowser requested an additional $500,000 to be allocated for the NEAR Act during fiscal year 2019. The funds would come, in part, by reducing the budget for the Emergency Rental Assistance Program, which provides funding to low-income residents facing eviction.

A FOIA fight for Stop-and-Frisk Data

In a March 28 FOIA request, ACLU-DC, BLM DC, and Stop Police Terror asked for data on all stop-and-frisks since the NEAR Act went into effect, along with the D.C. Police’s written plan for carrying out the data collection provision. By May 7,  they received only 14 forms documenting stops in 2016 that did not abide by that NEAR Act requirements.

On May 8, the plaintiffs filed a motion suggesting that the court force the D.C. police to follow the law within 90 days from the date of a court order.  

On Oct. 11, the city government filed a motion to dismiss the case.

During preliminary injunction hearing arguments in the case last month, every chair in D.C Superior Court was filled. The judge seemed to agree with plaintiffs that the city had been dragging its feet since the passage of the NEAR Act in 2016: A court order was “unavoidable,” he stated. The only question in his mind was whether he had the authority to dictate how the police collected the data. While the ACLU recommended a digital form with the necessary fields that could be easy analyzed, the police preferred to maintain a narrative form with one large, messy box.

The Stop Police Terror Project’s new campaign to end stop and frisk in D.C., which will launch on Jan. 5, includes a petition, canvassing, and workshops. The organization is cognizant of success stories in other cities which, according to its website, have “recently been forced to make serious changes to their policies in the face of activism and court opinions declaring elements of stop-and-frisk policing unconstitutional.” In New York City, for example, a federal judge ruled in 2013 that the NYPD’s use of stop-and-frisk was discriminatory and unconstitutional. That same year, then-mayoral candidate Bill  de Blasio campaigned on a promise to end the practice. From 2013 to 2017, the number of stops by police has decreased about 95 percent.   

Stop-and-frisk in Washington, D.C., appears to be following a similar trajectory. More lawsuits alleging unconstitutionality and discrimination are likely to follow the collection and analysis of NEAR Act data. In the meantime, the ACLU will be prepared to take on more cases, the Office of Police Complaints will continue to investigate resident complaints, and community groups will continue efforts to police the police.