Providence Police Gang Database Policy ‘Tramples Fundamental Constitutional Rights,’ Lawsuit Says

The department is targeting communities of color and violating local and federal law by using broad ‘association’ criteria to list people in a gang database, a Rhode Island community organization claims.

Alex had been shooting at indoor gun ranges for almost a decade when he decided to apply for a concealed carry permit. He assembled the necessary documents and submitted the thick file to the Warwick, Rhode Island, police department in January 2018. A few weeks later, an officer contacted Alex to say that there was “a red flag” on his name in the department’s system, Alex told The Appeal. He was showing up as a known gang member.

“I was shocked,” Alex said, speaking on the condition of anonymity because his experience has been cited in pending litigation. (The Appeal has also changed his name.)

Alex grew up in a neighborhood in nearby Providence where, in the 1990s and early 2000s, many people––including his friends––were affiliated with gangs. “[Police] would stop us when we were walking home from school, and even hanging out on the front porch of our homes,” he said. He suspects those interactions may have landed him on Providence’s gang database, but Alex has never been arrested for gang-related activity.

Providence police have not told Alex why he was added to its database and declined to comment for this story. Warwick Police Chief Rick Rathbun said that his department consults with other departments for information on gun license applicants, but declined to comment on Alex’s application, citing department policy against discussing an individual’s application with third parties.

Since 2004, the Providence Police Department has operated what it calls an intelligence assessment database, an internal list of people the department has deemed “criminal street gang” members. But in July of last year, the Providence Youth Student Movement (PrYSM), a community organization based in the city’s Southeast Asian community, filed a federal lawsuit against the city and other officials, including the mayor, over its gang database policy. Alex’s story is among those cited in the lawsuit.

According to the complaint, the Providence police gang database “tramples fundamental constitutional rights.” The lawsuit says police use “a number of activities protected under the First Amendment” in order to “count ‘points’ against an individual to determine gang membership.” For example, being a “contributor in gang publications,” appearing “in gang group-related photographs,” and “bearing [a] known gang group tattoo or marking” are among the list of 15 weighted criteria that could land someone in the database, according to internal department policy most recently re-evaluated on June 10, 2019. While many police departments in cities across the country—including Chicago, Los Angeles, and New York—maintain gang databases that use association-based criteria to designate supposed members, the lawsuit in Providence is the first to challenge a database on freedom-of-association grounds.

The lawsuit also alleges that Providence police officers harassed and profiled people as a result of its gang database policy. In 2011, PrYSM members testified before the Judiciary Committee of the Rhode Island House of Representatives, describing gang unit officers stopping Southeast Asian youth and demanding they pose for identifying photographs, threatening them with arrest if they did not comply, according to the lawsuit.

The lawsuit says police use “a number of activities protected under the First Amendment” in order to “count ‘points’ against an individual to determine gang membership.”

On Oct. 17, the city filed a motion to dismiss the lawsuit on the grounds that PrYSM does not have standing, and did not cite specific harms to members as a result of the gang database policy. Both parties responded in October and November and are now awaiting a hearing or ruling on the motion.

In the meantime, Shannah Kurland, legal director of the Community Defense Project at PrYSM and the lawyer representing the organization in the lawsuit, said on Jan. 3 that city officials have provided a “revised draft policy” that “appears to address much of PrYSM’s concerns about violations of local law and the Constitution”––although no agreement has yet been reached with the city.

A spokesperson for Providence Mayor Jorge Elorza declined an interview, citing a policy against commenting on ongoing litigation. A spokesperson for the police department also declined to answer any questions about the gang database, citing the pending lawsuit.

Justice Gaines, a PrYSM activist, said, “There is no reason that who somebody associates with should be a reason to give them such a serious designation that could have these huge, possibly lifelong consequences.”

The police department’s gang database policy is also in violation of the Providence Community-Police Relations Act, a police reform city ordinance, says the lawsuit.

PrYSM’s membership drove the five-year process of drafting the 2017 law, which enshrined protections for transgender people, immigrants, and people of color in interactions with law enforcement.

“We know, both anecdotally and through people we’ve represented and people who come to PrYSM, that folks … are constantly dealing with police harassment,” Gaines said.

The final language of the law prevents police from using “association with other people identified as gang members or any substantially equivalent factor” as a criterion for adding someone to its gang database. But in December 2017, Police Chief Hugh Clements approved a department policy that allowed police to list people on its gang database based in part on their “use and/or possession of gang group paraphernalia or identifiers” and “possession of gang-related documents.” It went into effect the same day as the Providence Community-Police Relations Act, on Jan. 1, 2018.

Approximately 54 percent of the people in the database were Black and 10 percent were Asian/Pacific Islander, according to the report. These groups make up 16 percent and 6 percent of Providence’s overall population.

Two days later, PrYSM obtained a copy of the policy, and Kurland wrote to the city, demanding it be rescinded. “City law is now crystal clear in forbidding the use of association to allege gang membership,” she wrote. City lawyers replied, saying the policy had been rescinded and use of the gang database suspended pending further review.

Well over a year later, on May 28, 2019, PrYSM obtained new documents that showed the department had only made small changes to the wording of the gang database policy, leaving association-based criteria intact. And the policy is still not on the police department website, as required by local law.

“The city was put on notice” from the start about its problematic policy, said José Batista, the executive director of Providence’s civilian police review board, who in June requested that the city rescind its policy. “Lo and behold, 18 months later, we come to find out via public records requests that [the database] was still not only active, but basically untouched.”

According to access logs obtained by The Appeal, police department officials have used the database roughly once a week between January and the end of November of last year. As of May 31, the Providence Police Department’s database had 153 names in it, including 40 people under the age of 21, according to an internal report obtained by The Appeal. Approximately 54 percent of the people in the database were Black and 10 percent were Asian/Pacific Islander, according to the report. These groups make up 16 percent and 6 percent of Providence’s overall population. Previously, the Providence police department told local media that the city was home to about 1,400 active gang members.

The claims advanced in PrYSM’s lawsuit echo concerns raised in cities across the country about the abuse of gang databases, which critics argue put people at risk of harsher treatment under the law and by police. In Rhode Island, for example, people who commit felonies can receive a sentencing enhancement of up to 10 years if the crime was committed in association with a gang. In Los Angeles, more than a dozen police officers have been suspended or reassigned for falsifying records in order to add innocent people to California’s gang database.

Liliana Zaragoza, assistant counsel for the NAACP’s Legal Defense Fund in New York City, calls the NYPD’s database “stop and frisk 2.0,” a reference to a police practice that disproportionately targeted Black and Latinx people. Nearly 99 percent of the people in the NYPD’s gang database are people of color.

After reviewing PrYSM’s lawsuit and the Providence Police Department’s policy, Zaragoza said that association-based criteria give wide latitude to law enforcement. “This gang database, or intelligence assessment database, absolutely would chill freedom of speech and association, just looking at the criteria,” she said.

Providence police also use interactions with alleged gang members on social media as a reason to add people to the gang database, which Zaragoza said “widens the scope of the potential associations by which you might be deemed a gang member.”

This gang database absolutely would chill freedom of speech and association.Liliana Zaragoza, assistant counsel for NAACP Legal Defense Fund NYC

In New York, Zaragoza said, people have “talked about having to cut people out of their lives because they don’t want to be perceived as being in a gang.” She added, “Nobody should have to alter their life in that way, and cut people out who they love.”

Steven Brown, executive director of the Rhode Island chapter of the American Civil Liberties Union, also raised concerns about the internal, secret nature of gang designations. Providence residents can submit a form to the police department to find out whether they are listed in the gang database, but the department is not required to disclose how that designation was determined.

“The problem remains that much of this occurs behind the scenes,” said Brown, speaking about collection of personal information by law enforcement. “There’s very little public information, both about the number of databases, what these databases collect, and who the information in these databases is shared with.”

Alex Vitale, co-author of a recent report on gang policing in New York and a sociology professor at Brooklyn College, said that this lack of transparency has consequences for accused gang members. “Whenever police have control of a secretive database, there’s no oversight. There’s no ability for independent assessment, and there’s always a risk for abuse.”

In June 2018, soon after Alex learned police had flagged him as a gang member, PrYSM helped Alex draft a letter to the Providence Police Department, requesting that his name be removed from its database.

In a response later that month, Major Oscar Perez, an officer with the department, replied, “I will [sic] like to provide a written response to you that at this time we have not populated a gang database and therefore you are not in our Providence Police department’s Gang Database,” according to emails reviewed by The Appeal. He continued, “As of this date, you are not in our gang database.”

Alex finally did receive his concealed carry permit. But he had already marked on federal forms, as part of his initial application, that he was not a member of a criminal street gang, not knowing he was risking federal charges in the process.

“It’s very scary knowing that you’re on that database—knowing that you get punished just for being on a database,” he said.