Contents:

• Night Watch: Special Cop Watch Activity
• Dennis Babcock Heads Back to Court
• Your Scalp: A Constitution-Free Zone?
• Spokesman Recorder: Local Police Abuse Worse than Most Believe

NIGHT WATCH: MAKING OUR PRESENCE KNOWN DOWNTOWN
Last night, CUAPB held our first Night Watch activity in downtown Minneapolis.  Part rally and part copwatch, this effort uses education and observation to improve safety for patrons of downtown clubs. It is a proactive way to address the many complaints of police abuse we have gotten, especially at clubs frequented by Blacks and other people of color.

We assembled at midnight at First Avenue and 5th Street, the heart of busy downtown night life.  Large signs identified why we were there and differentiated us from others passing out flyers for commercial interests.  As we moved through the area, we got out thousands of "Your Rights as a Downtown Patron" flyers.  Despite nippy temperatures and the general noise and confusion of the club scene, hundreds of people lingered to share their stories of abuse by police.  Others took up signs and flyers and joined us on the spot.  Night Watch generated a lot of excitement and positive comments.  A Minnesota Daily reporter recorded our action for an upcoming story.

At 2:00 a.m. club closing, we whipped out video cameras and recorded police activities.  Most of the complaints we've gotten have to do with police actions as the bars let out.  Cops use fire hydrant-sized canisters of pepper spray to douse whole crowds of people regardless of their individual behaviors, night sticks are used to hustle people who "don't walk fast enough" down public sidewalks and horses are ridden onto sidewalks to herd people around.  Little of this goes on around clubs frequented by whites but is endemic at the other clubs.

True to form, cops started spraying people coming out of the clubs but soon caught sight of our cameras and sign and reigned themselves in.  We overheard one of the cops telling the others about us being  there.

Later, we got a call on our hotline related to an incident at a downtown hotel.  The caller said they got our hotline number from the flyer they picked up earlier in the night.

This event comes on the heels of a very exciting and successful October 22 National Day of Protest Against Police Brutality rally and march in downtown Minneapolis.  During that event, we took people on a tour of injustice in which we pointed out the role of the police ("the mouth of the beast"), the courts ("the heart of the beast") and the jail ("the belly of the beast") toward the massive beast of ongoing injustices committed against the people.

We plan further Night Watch events to continue our presence downtown and will let you know how you can participate.

DENNIS BABCOCK HEADS BACK TO COURT
In a clear case of justice delayed, Dennis Babcock finally heads back to court for a hearing toward the new trial he was granted by the state supreme court.  In a bizarre twist of injustice that shows how far the prosecutors and courts will go to cover for brutal cops, Dennis was convicted two years ago of felony assault on a police officer after a plain clothes cop (who never identified himself as a cop) shot Dennis in the back while Dennis was on his hands and knees trying to crawl away.  When two cops in plain clothes invaded their home, the family had thought they were being robbed and tried to fight back against the intruders.  These cops had no search warrant and never identified themselves.  Neighbors saw the incident and called police and a uniformed officer testified that he very nearly shot one of the plain clothes cops but only stopped himself at the last moment, when he recognized the plain clothes cop's stance.  Despite this and other favorable testimony, Dennis was convicted and sent to prison for ten years.  His father, Mike Smith, who had fought with the other officer, was sentenced to a year probation but the charges against him were eventually dropped.

We apologize for not giving much notice but we would encourage folks to attend this hearing if possible:
Hearing for Dennis Babcock
Tuesday, November 23rd
10:30 a.m.
Hennepin County Government Center

We'll keep you posted on future hearing dates.
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YOUR SCALP: A CONSTITUTION-FREE ZONE??
A Federal Appeals Court Approves Suspicionless Hair Sampling
By SHERRY F. COLB
Wednesday, Nov. 17, 2004
http://writ.news.findlaw.com/colb/20041117.html

At the end of last month, in the case of Coddington v. Evanko, the U.S. Court of Appeals for the Third Circuit ruled that police officers may constitutionally shave large amounts of hair from a suspect's head, neck, and shoulders, without a warrant, probable cause, or any basis for suspecting that the hair would provide evidence of crime. The Fourth Amendment guarantees the people the right to be free from unreasonable searches and seizures. But according to the court, the Fourth Amendment does not apply to hair removal.

In so ruling, the Third Circuit followed its own 1982 precedent, In re Grand Jury Proceedings (Appeal of Mills), which held that taking hair samples from visible parts of a suspect's body does not invade any reasonable expectation of privacy. Such investigation therefore does not qualify as a Fourth Amendment "search."

The court in Coddington did not specifically address the question of whether shaving a large amount of hair from a suspect might constitute an unconstitutional "seizure." But it did reaffirm what it understood to be the holding of Mills: "that the taking of hair is not subject to restrictions imposed by the Fourth Amendment." Since the Fourth Amendment governs seizures as well as searches, it follows that there is no right under any part of the Fourth Amendment to be secure from police unreasonably shaving large amounts of hair from the visible parts of one's body.

This ruling is wrong as a matter of logic. It also misinterprets the constitutional right of the people to be secure against unreasonable searches and seizures.

The Facts of Coddington v. Evanko: Cutting Hair For Drug Testing

The case before the Third Circuit arose from the following facts, taken in the light most favorable to the plaintiff (as they must be taken when a court considers granting summary judgment against a plaintiff): When William Coddington, a Pennsylvania State Trooper, reported for work on April 5, 1999, several of his superior officers told him that they had received confidential information indicating that he was using cocaine. There was no finding by a court -- either then or after the fact -- that the informant providing the confidential information was either credible or had some basis for knowing whether Coddington was using drugs. Coddington was nonetheless ordered to submit to hair sampling so that his hair could be tested for cocaine and other drugs.

A sergeant at the police station cut hair from Coddington's head, neck, and part of his left shoulder blade. Coddington was then informed that additional hair had to be taken. He was given the choice of undergoing this further hair removal at a barber shop, at a salon, or at the home of a retired police officer whose wife used to be a beautician. He chose the last option of the three, and the subsequent shaving resulted in bare spots on his scalp. When police sent the hair to the laboratory to test for cocaine (along with other illicit drugs), the results were negative.

Coddington's Fourth Amendment Claim - and the Trial Court's Ruling

After his experience, Coddington brought a lawsuit against various officers in their capacities as employees of the Pennsylvania State Police. He argued that they had violated his Fourth Amendment rights by taking hair samples without reasonable suspicion.

The trial court dismissed the lawsuit on a motion for summary judgment, finding that there was no genuine issue of material fact, even if the judge believed the plaintiff's account of what had happened to him. In the court's view, the Fourth Amendment simply did not apply to the taking of Coddington's hair.

The Appellate Court's Ruling

The Court of Appeals then affirmed the trial court's grant of summary judgment, stating that "the taking of hair is not subject to restrictions imposed by the Fourth Amendment."

Under Mills, the court of appeals explained, the taking of hair samples did not intrude upon any reasonable expectation of privacy and thus did not constitute a Fourth Amendment "search." Even the degrading manner in which his hair was taken -- in particular, the quantity and the fact that it left Coddington with prominent bald spots on his head -- did not make a constitutional difference.

If the Fourth Amendment did not apply, it followed necessarily that the police activity did not have to be "reasonable" (that is, based upon an adequate level of suspicion). Coddington was therefore left with no case.

The "Search" Question: Supreme Court Precedents Define What Counts

In determining whether police have violated the Fourth Amendment, one must always ask a threshold question: does the Fourth Amendment apply at all? The answer depends on whether the official conduct in question constitutes either a "search" or a "seizure" under Fourth Amendment precedents.

As I explained in an earlier column about the Fourth Amendment significance of DNA sampling of ex-convicts, the "search" question boils down to whether police have invaded a suspect's "reasonable expectation of privacy." In contrast, the seizure question - at least where, as here, an inanimate object, rather than a person, has allegedly been seized - is whether police have asserted dominion and control over something belonging to an individual. Either a search or seizure will trigger application of the Fourth Amendment, which in turn requires that police act reasonably.

The U.S. Supreme Court suggested in United States v. Dionisio that taking a voice or handwriting exemplar does not constitute a Fourth Amendment search. In other words, asking a suspect to say a phrase - so that a listener, for example, can determine whether the suspect is the person who robbed him - does not invade any reasonable expectation of privacy and is therefore not a search. In the same case, the Supreme Court seemed to indicate in dicta -- that is, words that are not necessary to the disposition of the case - that the taking of fingerprints would also not constitute a search. Taking blood, by contrast, does constitute a search, under the Supreme Court's ruling in Schmerber v. California.

According to the U.S. Court of Appeals for the Third Circuit, taking a hair sample is more like obtaining voice exemplars or fingerprints than it is like taking blood. Particularly if the hair that is sampled grows on a visible part of a person's body, the court said, nothing private has been exposed.

Therefore, the court concluded, taking a hair sample is not a search and does not implicate the protections of the Fourth Amendment against unreasonable searches. Police could take hair samples without having a good reason to do so.

Why the Court's Conclusion is Bizarre: The Fourth Amendment Should Apply

Certainly, taking blood is more intrusive than cutting visible hair. Many men shave every day without experiencing any anxiety. Giving blood, on the other hand, is more intrusive, and for many people, causes serious anxiety. (Indeed, we have recurring blood shortages in this country in part as a result of that simple reality.).

Nonetheless, the right to be secure in one's person from unreasonable searches and seizures seems at odds with the notion that police can shave large quantities of a person's hair without some justification. One might well feel violated by having one's hair shaven without consent, even if the hair - while still attached to one's body - was visible to the world.

In addition, unlike voice exemplars and fingerprints - which can be given without an individual's "losing" her voice or her fingerprints - a portion of one's hair, once shorn, has been taken away from one's possession. It has thus, on any plausible reading of the word, been "seized."

Consider the following hypothetical cases to illustrate the point. You are holding a string attached to an apple-shaped helium balloon on which appear the words "I LOVE NEW YORK." Imagine that you tie the balloon to your wrist so that you do not lose it. As you are walking, a police officer comes along with scissors and cuts the string. He then takes the balloon and explains to you that he's sorry, but he really wanted it. Has he seized the balloon? Of course he has. Is the seizure a reasonable one? No, although you probably won't bring a lawsuit over a balloon.

Now imagine that you are wearing a gold chain around your neck. A police officer comes by with kitchen scissors and clips open the chain. It falls into the officer's hands, and he tells you that he wanted it because he was curious about how much it weighed compared to his gold chain. Seizure? Of course. Reasonable seizure? No way.

So what about your hair? What's the difference? Well, one difference is that it is actually attached to your body - unlike the balloon or gold chain. In Coddington's case, moreover, taking his hair made him look peculiar, because the appearance of his shorn hair - visible as it was - contributed to his overall "look."

But is hair worth that much? Perhaps not as much as a gold chain, but probably more than a balloon. Some people, for example, spend a great deal of money to have professionals cut their hair in an attractive way, rather than inviting a random person to shave off pieces of it for free. They pay good money, in other words, to retain enough hair to make them look good.

It also seems that because shaving one's hair is a somewhat intimate act, cutting hair without consent may also invade what many of us would consider a reasonable expectation of privacy. One expects privacy, in the sense of the right to be left alone, when it comes to parts of one's body, including even those parts that are not made up of living tissue.

Unfortunate Decision: The Third Circuit Ought to Rethink Its Position

The Third Circuit - both in its 1982 Mills case, and the recent Coddington case -- is therefore wrong, as a matter of logic and of constitutional analysis. The Fourth Amendment certainly ought to govern the taking of substantial amounts of hair - even visible hair - from a person's body.

For the police to behave as they allegedly did toward Coddington, without having to act on suspicion or otherwise justify their actions, is a frightening prospect. And make no mistake. Under the Third Circuit's approach, the police can shave the hair of anyone who appears in public at any time. They do not need to have any reason whatsoever for suspecting the unwitting shavee of a crime.

Fortunately, police will likely not often utilize this power - by going to movies or concerts, for example, armed with electric razors. Still, we should not have to rely for the exercise our rights on the self-restraint of the police, who are - to use the Supreme Court's words - in the "often competitive enterprise of ferreting out crime." I would respectfully dissent.

FROM THE ARCHIVES
This editorial is still as relevant as ever...

Local police abuse worse than most believe
By: Pauline Thomas
Minnesota Spokesman-Recorder
Originally posted 8/7/2003
http://www.spokesman-recorder.com/News/Article/Article.asp?NewsID=30285&sID=16

There's an old saying that a fish doesn't know he is swimming in water. It's the only thing he has ever known and he is so used to it that he doesn't realize anymore that the water surrounds him every moment of his life.

Similarly, Blacks who have grown up in Minneapolis may realize that the way Minneapolis police act is often wrong, but without anything to compare it to, perhaps they don't realize just how bad it is.

This past weekend, some people I know from another state visited Minneapolis. They went downtown on Saturday night and later reported to me their shock and anger when they observed Minneapolis police macing Blacks all up and down the street. Not macing a fine mist over the crowd, but macing Blacks right in their eyes. Some were reportedly carrying pistols in both hands and walking up and down the streets.

Now, these police know that it is against Minneapolis police policy to mace anyone in their eyes. But they still do it. Daily. And they do it often to people of color.
 
The out-of-town Blacks asked me, "What's going on in Minneapolis? What kind of a city is this?" Why did it seem that Blacks were the only group being targeted by the police? Now, these are Black people who live in another major city in this country. They have grown up in the Black Experience in urban America. But they could not believe the brazenness with which Minneapolis police were openly macing Blacks who had nothing to do with any incident. People who were only trying to get food from a restaurant were being maced.
 
This should trouble us, that even other major cities do not have the level of police misconduct that we suffer from here.

It appears that the thuggish conduct by Minneapolis police that former police chief Tony Bouza spoke about years ago is back again. The problem is that the Minneapolis police are too often out of control. Because the managers in the police department are not willing to actually supervise and discipline them, they have become even more out of control.

You can't send an army of 900 people out into the streets with guns and mace and not supervise them. The U.S. Army doesn't even do that during a war. If you don't supervise, soon these people will start doing whatever they want, whenever they want. And that's what we've got going on here.
 
Do you know that in other cities, police have to write reports about everything they do on their shifts? That's how other police departments catch the bad actors, find out problems with their policies and determine the need for further training. But in Minneapolis, officers can show up and mace hundreds of Blacks, and never have to report it to anyone! Never do a report, never even get questioned by their supervisors, never be held accountable.

Why should the taxpayers foot an expensive tax bill for police when we can't even tell from their records where they are going or what they are doing? Why are we so accepting in Minneapolis that we allow this army of armed people to drive around town, getting into any kind of skirmish that they want, without even having to report what they have done? Secretaries are required to keep better track of their time than that.

Just like the fish swimming in water, we in Minneapolis seem to have accepted, on some level, that police can act like this. We need to get some perspective by listening to Blacks from other cities where, even though they have police brutality, they do not have the level of brutality that we suffer here.

Because police are not given any consequences for their misconduct, the problem grows worse. (Often their conduct is covered up by prosecutors who are willing to send innocent brutality victims to jail for "cover up" crimes, or police are actually rewarded for their brutality by being promoted within the department.) As the problem escalates, we need to escalate our outrage and our activity around the misconduct.

What keeps us, the entire community, from expressing our outrage over police misconduct? I have asked many people these questions, and here are some responses:

"We in Minneapolis want to still think of ourselves as living in a small town. We don't want to face the reality that we have become a major urban area with big-city problems."
 
"Business leaders and politicians are afraid to face the reality of their police force, because they are afraid that if we openly start talking about how bad it is, we will scare away business (conventions, sports events, tourists, etc.). So money is being valued higher than those who are victimized by the police."

"Many people in this area have no idea how bad the problem is. They assume that the isolated news stories about it are just that--isolated incidents. They have no idea that every day Blacks and other people of color are brazenly, openly beaten by police for no reason. That this kind of sadist conduct by police has reached epidemic proportions in the MPD."

I know, and have always stated, that it is not all police. But no longer can we marginalize the problem and act like there are just a "few bad apples."  The "bad apples" in the MPD have driven out many of the decent officers, who have resigned and moved to other departments, or simply retired from policing. The culture, and intimidation of police officers has resulted in bad apples being the norm in the MPD, not the exception.

"Many people in this area are in denial. They hear about the abuses, but it makes them feel uncomfortable, so they reject the information. They never really let it in. They think, well, it doesn't really affect me, so why should I get involved?"
 
So the Minneapolis fish keep swimming in Minneapolis water, quite unaware at most times that the water has started to stink. The simple answer is that unless we--all of us (people of color who do not realize that they are treated even worse here than in other larger cities, and others who simply do not know or refuse to learn about the problems)--take charge of this situation, we will continue to silently give police permission to break the laws that they are supposed to be enforcing.

Communities United Against Police Brutality
3104 16th Avenue S
Minneapolis, MN 55407
Hotline 612-874-STOP (7867)