Keith Shenery was hanging out with friends in the courtyard of a Harlem public housing project when police saw him remove a small bag from his pants. When police approached him, he told them that it was “just weed.” When the officers searched him, they found a small bag of marijuana and a folding knife, a gift from his grandfather. Shenery, 21 at the time, was arrested and indicted for unlawful possession of marijuana and felony possession of a weapon — an unusually severe charge. Prosecutors asked for his bond to be set at a whopping $10,000. Shenery, they claimed, was a “known” gang member.

Shenery, who had only three nonviolent misdemeanor arrests on his record from when he was a teenager, could have been released that night on his own recognizance with a misdemeanor charge. He had no idea why prosecutors would call him a gang member and strongly denied the accusation. But as his case has dragged in court for nearly two years, prosecutors labeled him a gang member over and over — telling a judge, but providing no evidence, that he belonged to Harlem’s Cash Money Boys, “a violent narcotic sale crew based out of 1990 Lenox,” according to court files.

More than a year after his April 21, 2017, arrest, Shenery learned that prosecutors appeared to be basing their accusation on his inclusion in a database of more than 42,000 New Yorkers that the New York Police Department considers as “gang members.”

As The Intercept has reported, the NYPD’s gang database was massively expanded in recent years, even as gang-related crime dropped to historic lows. The information on the secretive list is available to prosecutors but not to those named in the database, who often learn that the police have labeled them gang members only if they are arrested and slammed with inexplicably harsh charges or excessive bond. The database has been widely criticized as arbitrary, discriminatory, and over-inclusive — with no clear process in place to discover or challenge one’s alleged gang affiliation. Like Shenery, an overwhelming majority of people in the database are young black and Latino men.

Last year, the Legal Aid Society, one of several New York organizations that have demanded greater transparency from the NYPD about the database, launched a website to help New Yorkers file public records requests to learn whether they are listed in it. So far, more than 300 people have filed such requests — but police have denied every one of them.

Shenery, who learned of the existence of the gang database after prosecutors called him a gang member in court, filed a Freedom of Information Law request last July to understand what earned him the label. Within a day, the NYPD denied his request. Shenery appealed and then sued in November after the NYPD responded that it had found “responsive records” for him but refused to turn them over.

Shenery declined to be interviewed for this article. A spokesperson for the NYPD did not respond to a series of questions by The Intercept about the gang database and Shenery’s lawsuit, but wrote in an email that the department “maintains among the nation’s most rigorous criteria for identifying an individual as being a member of a known criminal group.”

A spokesperson for the Manhattan District Attorney’s Office declined to comment on Shenery’s criminal case because it is still open, but referred to court documents in which prosecutors making the bond request cited his record, as well as previous failures to appear in court and a recommendation by the Criminal Justice Agency, an independent city agency that evaluates whether an individual is a candidate for release.

The spokesperson added that the DA’s office does not have direct access to the NYPD’s gang database and wrote that “our prosecutors would not have referenced inclusion in the NYPD’s gang database, standing alone,” and that “any reference to a defendant’s membership in a Manhattan-based gang would have been based on independent analysis from our Office, including our Office’s own independently-gathered intelligence.” Prosecutors’ claim that a defendant is a “known” gang member, the spokesperson added, is based on “information from community members and other law enforcement agencies, and our office’s own independently-gathered intelligence.”

Attorneys argue that calling someone a gang member, and providing no evidence, immediately impacts a defendant’s right to due process.

“The mere use of the label renders you guilty in the eyes of the court,” said Anthony Posada, a supervising attorney with Legal Aid’s Community Justice Unit, who is representing Shenery in his lawsuit against the NYPD. “We’re seeing people being criminalized, found guilty by association, in court, where you’re supposed to be presumed innocent until you’re proven guilty beyond a reasonable doubt. What is happening is a practice by which assistant district attorneys are relying on the gang database to label people and prejudice their cases.”

Smoking While Black

Although the NYPD has said little about how it uses the “criminal group database,” as the database is known internally, it is no secret that the department shares information about alleged gang membership with prosecutors and other law enforcement agencies. It’s also clear that designation as a gang member, even when based on questionable evidence and without that evidence being disclosed to the accused or their attorneys, can have a profound impact on one’s fate in court. While gang association by itself is not a crime, prosecutors regularly use it to bolster their cases.

That’s exactly what happened to Shenery.

Earlier this year, the Manhattan District Attorney’s Office announced that it would no longer prosecute the possession of small quantities of marijuana, calling on legislators to legalize and regulate its use and citing the lack of “moral justification for the intolerable racial disparities that underlie enforcement.” Shenery’s arrest preceded the policy change, but in a city where marijuana use was already effectively legal for most people, he fit the profile of the New Yorker most likely to be prosecuted: young, black, and from a poor neighborhood. Before the DA’s announcement, black New Yorkers were arrested for small marijuana possession at eight times the rate of white New Yorkers. In Manhattan, black residents were arrested on low-level marijuana charges at 15 times the rate of white residents.

“Gravity knives,” as prosecutors call the commonly used kind of folding knife that police found in Shenery’s pocket, have also been a controversial issue in New York City — with critics noting that criminalizing them has led to the arrest of thousands of working-class individuals, mostly people of color. While the gravity knife ban was originally intended to target dangerous switchblade-style knives, it has since been applied to even the most widely used pocketknives, common especially among manual laborers.

The DA’s spokesperson told The Intercept that the office either dismisses the cases of individuals found in possession of these knives for work purposes, if they are not re-arrested within six months, or offers them a disorderly conduct plea. But attorneys say that workers continue to be arrested and prosecuted over the knives.

While Shenery’s case highlights some of the city’s most intractable issues regarding race and policing, he would have been unlikely to receive a felony charge and an exorbitant bond had he not been identified by police as a gang member. “For almost anybody in New York, this would have been a misdemeanor arrest,” said Jane White, an attorney with Legal Aid who has been representing Shenery in his criminal case. “They don’t do this to most defendants, but they do it when they want to slam somebody, when there’s information that they want to get from somebody, or when they think somebody’s a so-called person of interest.”

In its response to Shenery’s request for records, the NYPD claimed that it could not disclose any records alleging his gang affiliation without revealing “non-routine” investigative techniques. But Legal Aid attorneys shot back that the techniques used by the NYPD to determine who is a gang member have already been discussed publicly, and that they are deeply problematic.

At a city council hearing last June, NYPD Chief Dermot Shea testified that individuals can be added to the database if they “admit” to being members of a gang or if they are identified as such by “two independent and reliable sources.” In the absence of identification, the NYPD may choose to add an individual to the list if they meet at least two of a wide-ranging list of criteria that include one’s presence at a “known gang location,” association with “known gang members,” social media posts, scars, tattoos, and the use of gang “signs” and “colors.” One document published by The Intercept in June showed a list of colors that the NYPD considered to be associated to gangs: black, gold, yellow, red, purple, green, blue, white, brown, khaki, gray, orange, and lime green.