First Circuit Tears Into Boston PD's Bullshit Gang Database While Overturning A Deportation Decision

from the now-find-some-way-to-kill-it-dead dept

A federal court has delivered a rebuke of police gang databases in, of all things, a review of a deportation hearing.

As we’ve been made painfully aware, gang databases are just extensions of biased policing efforts. People are placed in gang databases for numerous, incredibly stupid reasons. People are designated gang members simply for living, working, and going to school in areas where gang activity is prevalent. Infants have been added to gang databases because cops can’t be bothered to perform any due diligence. There’s no way for people to know they’ve been designated as gang-affiliated and, worse, there’s often no way to challenge this designation and get yourself removed from these lists, which tend to result in additional harassment by police officers or “gang enhancements” that lengthen sentences for anyone listed in these dubious databases.

In 2015, Homeland Security Investigations officers performed a sweep in Boston, Massachusetts, rounding up suspected MS-13 gang members for deportation. This sweep snared Cristian Diaz Ortiz, who was 16, had entered the country illegally, and was now living with his uncle.

Oritz applied for asylum, citing the fear of being subjected to MS-13 gang violence if he was sent back to his home country, El Salvador. From the First Circuit Appeals Court decision [PDF]:

On October 1, 2018, Diaz Ortiz filed an application for asylum, withholding of removal, and CAT protection, basing his request on multiple grounds, including persecution because of his evangelical Christian religion. He also reported that an aunt had been murdered in 2011 by members of MS-13, and he feared that the gang would kill him as well if he returned to El Salvador. In a subsequently filed affidavit, Diaz Ortiz stated that, while he was living in El Salvador, MS-13 had threatened his life “on multiple occasions” because he was a practicing evangelical Christian. He said he repeatedly refused the gang’s demands that he join MS-13, but gang members continued to follow him and issue threats. In 2015, the gang physically attacked him and warned “that they would kill [him] and [his] family if [he] did not stop saying [he] was a Christian and living and preaching against the gang way of life.”

The Immigration Judge sided with the Department of Homeland Security. It largely made this decision due to the introduction of a “Gang Assessment Database” that said Ortiz was not a practicing Christian who might fear retaliation if removed from the country, but rather an MS-13 infiltrator. The “gang package” (as the court refers to it) was compiled by the Boston PD. It stated the following:

Cristian Josue DIAZ ORTIZ has been verified as an MS-13 gang member by the Boston Police Department (BPD)/Boston Regional Intelligence Center (BRIC).

Cristian Josue DIAZ ORTIZ has documented associations with MS-13 gang members by the Boston Police Department and Boston School Police Department (BSPD). (See the attached BPD & BSPD incident/field interview reports and gang intelligence bulletins.)

Cristian Josue DIAZ ORTIZ has been documented carrying common MS-13 gang related weapons by the Boston Police Department. (See the attached BPD incident/field interview reports.) [A footnote states that the only “weapon” ever documented by the BPD was a bike chain and a padlock carried in Ortiz’s backpack.]

Cristian Josue DIAZ ORTIZ has been documented frequenting areas notorious for MS13 gang activity by the Boston Police Department. These areas are 104 Bennington St. and the East Boston Airport Park/Stadium in East Boston, Massachusetts which are both known for MS-13 gang activity including recent firearms arrests and a homicide.

According to the Boston PD, Oritz racked up “points” by associating with gang members and being in areas MS-13 members frequented. If enough points are accrued, a person gets placed in the gang database. But the underlying events had nothing to do with gang activity, despite what the summary provided by the DHS said.

The BPD documented nine “interactions” with Ortiz in which it assigned “gang” points to him. Three of those instances involved Ortiz smoking marijuana (a civil infraction in Massachusetts) with students and others the BPD claimed were “known MS-13 members.” Four others involved Ortiz “loitering” in a place near “known gang member” or being approached and talked to by “known gang members.” And one of the interactions was the time the BPD “discovered” Oritz carrying a bike lock and chain in his backpack — something not all that uncommon for bike owners (which Ortiz was).

This “gang package” was critiqued by a law enforcement expert who testified that Ortiz should never have been included in the gang database. The former Boston police officer pointed out Ortiz had never been suspected of criminal activity and was apparently being penalized solely for spending time with people of his same ethnicity. The gang package’s claim that Ortiz had a “history” of carrying weapons was clearly undercut by the BPD’s documentation of a single incident where an officer recovered something that could be used as a weapon (the bike chain), but was not inherently a tool of unlawful violence.

The immigration judge ignored all of this, finding only the DHS and BPD credible. So did the Board of Immigration Appeals (BIA). Fortunately for Ortiz, the First Circuit isn’t as easily impressed by the Boston PD’s police work. It has some very harsh words for the two lower levels that blew off their obligations to the asylum seeker.

If the IJ and BIA had performed even a cursory assessment of reliability, they would have discovered a lack of evidence to substantiate the gang package’s classification of Diaz Ortiz as a member of MS-13. Most significantly, the record contains no explanation of the basis for the point system employed by the BPD. The record is silent on how the Department determined what point values should attach to what conduct, or what point threshold is reasonable to reliably establish gang membership.

As the appeals court points out, these databases are inherently unreliable because literally anything can be used to imply someone is a gang member. The lower courts were wrong to completely dismiss Ortiz’s challenge of the BPD’s assessment.

That silence is so consequential because, during the period relevant to this case, the list of “items or activities” that could lead to “verification for entry into the Gang Assessment Database” was shockingly wide-ranging. It included “Prior Validation by a Law Enforcement Agency” (nine points), “Documented Association (BPD Incident Report)” (four points), and the open-ended “Information Not Covered by Other Selection Criteria” (one point). The 2017 form for submitting FIO [Field Interview Operations] reports to the database states that a “Documented Association” includes virtually any interaction with someone identified as a gang member: “[w]alking, eating, recreating, communicating, or otherwise associating with confirmed gang members or associates.

The points are easy to acquire, but there’s no consistency in how the Boston PD assigns them, lending more credibility to the assumption that gang databases mainly exist to confirm cops’ biases.

Moreover, the point system was applied to Diaz Ortiz in a haphazard manner. He was assigned points for most, but not all, of his documented interactions with purported MS-13 members. When he was assigned points, he was not always assigned the same number per interaction. Although he was assigned two points for “contact” with alleged gang members or associates on most occasions, he was assigned five points for the “Intelligence Report” submitted by the Boston School Police that describes an encounter that appears no different from the other “contacts.” Only two items in the Rule 335 list carry five points: “Information from Reliable, Confidential Informant” and “Information Developed During Investigation and/or Surveillance.” We thus cannot accept the BIA’s implicit conclusion that the gang package’s points-driven identification of Diaz-Ortiz as a “VERIFIED and ACTIVE” member of MS-13 was reliable.

Case in point:

The entry for November 28, 2017 — the report from a Boston school officer — illustrates several of these issues. The gist of the entry is that two officers made “casual conversation” with a student in a “full face mask” whom they identified as a member of MS-13, and they then saw the student walk over to a group of teenage boys that included Diaz Ortiz. The report identifies no improper conduct by any of the students; it does not say that the mask bore gang colors or symbols;23 it does not indicate that the masked student spoke directly to Diaz Ortiz. Nor does the report explain the basis for identifying the student as an MS-13 member other than to say that the BRIC labeled the student as a “verified” member. Therefore, we at most can infer from this paltry set of facts that Diaz Ortiz was standing near an individual who was identified as an MS-13 member by the BRIC, with the only basis for that identification the possible use of the same problematic point system that identified Diaz Ortiz as a member. Yet, Diaz Ortiz received five points merely because that student decided to walk over and join a group that included him.

Yes, the BPD decided Ortiz was affiliated with a notorious El Salvadoran gang internationally known for violently [checks gang package] smoking the reefer and conversing in public.

The whole opinion is worth reading. It ruthlessly picks apart the BPD’s gang database, reaching conclusions that apply to every gang database run by any law enforcement agency in America. This vacates the lower courts’ decisions, which means Ortiz can again plead his case before the BIA. And this time he’ll get a new judge because the First Circuit feels that sending it back to the original immigration judge would just allow that judge to re-engage with their pre-existing biases.

Gang databases are garbage. Even the most cursory examination of the underlying factors common to almost every gang database makes that clear. But the immigration court couldn’t be bothered to do this, which almost resulted in someone being sent back to El Salvador where interactions with actual gang members might have resulted in his death, rather than just being an unwilling participant in Boston’s “Whose Gang Is It Anyway?,” where everything’s made up and, unfortunately, the points do matter.

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Comments on “First Circuit Tears Into Boston PD's Bullshit Gang Database While Overturning A Deportation Decision”

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That One Guy (profile) says:

'Only a gang member would breathe the same air as gang members!'

Quick and easy way to shut down all such gang databases: Have it run by a third party and apply it to everyone, police included.

Simply being near a gang member is enough to get you points towards a ‘gang member’ designation? Good thing police and judges aren’t around many gang members.

Talking to a gang member even more damning? See previous point.

Having a weapon(or even just something that could be one) an indication that you’re a member of a dangerous gang? Sure hope police don’t go around armed by default otherwise that would look pretty suspicious.

With every police officer and a good number of prosecutors and judges added to the database it would be all too easy to rip into any accusations by asking why only some of the people on the database are worthy of condemnation while others are completely ignored despite gaining their designations thought the same methods.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: 'Only a gang member would breathe the same air as gang membe

Simply being near a gang member is enough to get you points towards a ‘gang member’ designation?

Being near someone in the gang member database, who themselves are likely in it for the same thing. The gang database is a virus. If its criteria were applied consistently, nearly the entire world’s population would be included in a matter of weeks.

Slow Joe Crow (profile) says:

Re: 'Only a gang member would breathe the same air as gang membe

The logical conclusion is that the Boston Police and all neighboring police agencies should be gang members and all of the family friends and acquaintances should be known gang associates since the largest, most heavily armed and violent gang in any major US city is the police department.

This comment has been deemed funny by the community.
Anonymous Coward says:

Re: Re:

Pretty soon, the entire school has only members of MS-13. But they are all somehow ALSO members of White Pride, Oathkeepers, Proud Boys, Hell’s Angels, Sons of Anarchy, the Italian mafia, the Yakuza, and Ms Brubaker’s Science Fiction Club. Hey, our "association list" says so!

Anonymous Coward says:

Gang databases are just a (for now) way for Police and judges to (and I hate to use this word but in this context it’s necessary) "lock up them niggers and half niggers and nigger lovers" (which in the judges mind is anyone not white).

Basically the Boston PD made a racist database to justify racist stop and search, racial profiling, racial discrimination AND punishment simply for "being non white and being within visual range of other non whites"

Stephen T. Stone (profile) says:


I hate to use this word but in this context it’s necessary

No. No, it was not. You easily could’ve gotten your point across without using that word. And before you say anything in response: I’ve used that word here before in talking about offensive speech, consequences, and learning from said consequences⁠—and doing so remains a huge regret of mine.

You don’t need to use the word. At all. And if you feel that you absolutely, positively, unquestionably must use that word, either say “N-word” (everyone knows what that means) or censor it somehow.

That Anonymous Coward (profile) says:

Re: Re: Re:

But but but… I have a black friend!

I had this thought stream about context and who the quote was attributed to that might have made a difference.
But nothing good was coming out of it mainly because I’m to white for my own damn good.

So instead I played the but I have a black friend card.

It is one of the words that creates a flashpoint in people, and once that bell is rung everything before it vanishes as people stare at the bell wondering what the fsck were you thinking.

Trust me, I get wanting to make a strong point but that word obliterates any point you try to make.

PaulT (profile) says:

Re: Re:

"I hate to use this word but in this context it’s necessary"

I’ll echo what others said – no, it’s really no. There’s other words you could have used and even if you were directly quoting someone verbatim there’s ways to not use the uncensored word and get the point across. I think all you’ve done here is detract from your point and probably earned yourself some reports in the meantime.

"which in the judges mind is anyone not white"

Which makes it strange that you only used a slur associated with one of those groups.

David says:

Re: One more example

Well, for a job for which below-average intelligence is required to even be considered, it’s completely normal that a court must not rely on any inferences drawn by officers but instead look at the underlying facts and reevaluate them with the required intelligence they deserve.

Officers are not eligible for both thinking and qualified immunity, and the latter is the more important qualification on the job. So you would not want to depend on the officers for drawing conclusions, like you do not want to depend on your plumber for removing a cancerous growth. I know that’s not a perfect analogy since a plumber is allowed to learn surgery.

Anonymous Coward says:

Oh boy, what a bunch of dumbasses, the Boston PD and the judge, collectively. unwarranted character assassination, guilt-by-association, and conspiracy theories, this passes for American justice? Since when is labeling based on a points-based system a reliable indication of gang membership? This pseudoscience passes in court for evidence? What an embarrassment!

David says:

Re: Re:

Since when is labeling based on a points-based system a reliable indication of gang membership?

You have not yet been introduced to the wonder of algorithm-based sentencing guidelines? You know, where you are punished for correlating with people who are getting punished? Seems like getting punished for associating with people who are getting punished is a step forward since it is based on something you actually did.

Not that it has been illegal or something, but at least you did it. So much better than being punished for things you might do.

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That Anonymous Coward (profile) says:

That thing where you know everyone in that "database" shares a non-white hue to their skin.
Cause you don’t need to be an immortal sociopath to know that if you can force some good white boys into your gang you can silently slip pas the police because no white folk are gang members… except FOP, KKK, GOP… o_O

I mean I flag Evangelicals as terrorists, look at their actions kids.. its like white isis… but its wrong to just assume that everyone who claims to be an Evangelical is a terrorist… as long as they come out an denounce the acts of other terrorist Evangelicals fast enough & loud enough.

Its no longer cute seeing humans repeat the same cycles over & over never learning anything.
We harass them enough they end up in gangs to try and protect themselves, because we’ve assigned random points making it impossible for them to go a day without being hassled because of imaginary membership & its disgusting…
I mean its Boston… would someone like to explain that this is what they used to do to those fscking micks who showed up just to harm decent americans?

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