News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Information in the BPD Gang Database is “Flawed” and Unreliable, According to First Circuit

Boston-PDIn a resounding victory for civil liberties, in January the First Circuit overturned an immigration court’s denial of Cristian Josue Diaz Ortiz’s claims for asylum, finding that the Boston Police Department’s (BPD) Gang Assessment Database (on which the immigration court’s decision relied) is a “flawed” system that relies on “an erratic point system built on unsubstantiated inferences.” The First Circuit’s criticism of the Gang Assessment Database could have broader implications for people challenging law enforcement decisions made based on their inclusion in that database.

The BPD Gang Assessment Database

The BPD Gang Assessment Database, which is maintained by the Boston Regional Intelligence Center (BRIC), is a secret database that the BPD uses to label, track, and collect and share information about people who they believe are involved in gang activity. The BPD uses a point system to determine whether individuals will be included in the Gang Assessment Database. When BPD suspects that a person is involved in gang activity, it collects, stores, and tracks information about that person and assign them points based on criteria that is allegedly indicative of gang membership. Once a person accrues six or more points, they are designated as a “verified gang associate.” After accruing ten or more points, a person is designated as a “verified gang member” and police enter their name in the BRIC Gang Assessment Database, which is shared with other law enforcement agencies and jurisdictions.

Police decide how to assign points and to whom. Because of the arbitrary point system and criteria that BPD uses, people are labeled as gang members and associates even if they have never been accused of engaging in any wrongdoing, violence, or criminal activity. For example, a person may be assigned eight points for being the victim of violence that is believed to be gang related. A person may also be assigned points for behaviors that are typical for teenagers including being seen with/spending time with other kids who have been arbitrarily designated gang members; or wearing a Chicago Bull’s hat, a black rosary, or even a blue shirt (even when that is their school uniform).

The BPD does not notify individuals when they accrue points, or when they are placed in the database. There is no procedure through which a person included in the database can challenge the basis for their inclusion. Once someone is included in the database, they can be targeted for further state surveillance and police investigatory stops, face harsher outcomes (in treatment and sentencing) in the criminal legal system, and face deportation. Courts have used a person’s inclusion in the database as a reason to deny bail and require defendants to be incarcerated pending court proceedings. A person’s alleged gang membership may also influence the severity of the charges brought by a prosecutor, whether or not the government offers that person a plea deal, and how advantageous any offered plea is. Evidence of a person’s alleged gang membership may be introduced at their trial, and, if convicted, may also cause them to receive a more severe sentence.

Facts of the Case

Cristian Josue Diaz Ortiz, a teenager who came to the U.S. from El Salvador, had been living in East Boston for three years when he was arrested by federal agents and detained pending removal proceedings. Although Mr. Diaz-Ortiz had no prior arrests and “had not been observed participating in any gang activity,” he was accused of being a member of MS-13.

Mr. Diaz Ortiz was entered into the Gang Assessment Database based on multiple field interrogation observations (FIOs) that he was subjected to by BPD. The police reports from these FIOs documented Mr. Diaz Ortiz engaging in behavior typical of teenagers, like hanging out with other Latinx friends at the park, at a stadium, and at a friend’s home, and carrying a lock for his bicycle in his backpack. The reports did not document Mr. Diaz Ortiz engaging in any violent conduct and he was never arrested. BPD assigned Mr. Diaz Ortiz points for each of these interactions. Once he accrued enough points, he was designated as a “verified gang member” and ensnared in the Gang Assessment Database.

In October 2018, Mr. Diaz Ortiz applied for several forms of immigration relief on the basis that he and his family had been persecuted for their religious beliefs by MS-13 in El Salvador and he feared further persecution if he were to return. However, the immigration judge denied Mr. Diaz-Ortiz’s applications for relief, finding that Mr. Diaz Ortiz was not credible, and ordered that he be deported. The immigration judge’s finding was primarily based on evidence from the BPD’s “Gang Assessment Database,” in which Mr. Diaz Ortiz appeared. The Board of Immigration Appeals (BIA) affirmed the immigration judge’s decision. On appeal, the First Circuit vacated the BIA’s decision and ordered that Mr. Diaz-Ortiz receive a new hearing, finding that evidence of gang membership from the BPD gang database was unreliable and an insufficient basis for denying Mr. Diaz-Ortiz’s application for immigration relief.

The First Circuit’s Decision

The First Circuit found that the gang database evidence was not a sufficient basis to reject Mr. Diaz Ortiz’s applications for immigration relief because the BPD’s database does not contain “reasonable, substantial, and probative evidence” of gang membership or association. The First Circuit deemed BPD’s Gang Assessment Database to be a “flawed” system relying on “an erratic point system built on unsubstantiated inferences,” and stated that they were “shocked” by the activities that could cause someone to be entered into the database.

Furthermore, federal regulations mandate that any systems that share information with other law enforcement agencies and jurisdictions (like the BRIC Gang Assessment Database) can only “collect and maintain criminal intelligence information concerning an individual” if there is a “reasonable suspicion” that the individual is involved in criminal conduct and the information is relevant to that criminal conduct. The First Circuit found that these federal regulations plainly prohibited interjurisdictional databases from collecting “criminal intelligence information” about individuals without any reasonable suspicion of criminal activity, as the Gang Assessment Database did in Mr. Diaz Ortiz’s case.

It remains to be seen what impact the First Circuit’s strident criticism of the Gang Assessment Database will have either for individuals included in the database or for civil liberties groups pushing to dismantle the database. It is heartening to see that the court recognized that the database has served as a unjustified restraint on the civil liberties of Black and Brown youth in hyper-policed communities, and provides courts that are presented with evidence of someone’s inclusion in the database a clear justification for rejecting that evidence as unreliable.

If you have been arrested or are facing criminal charges,contactour criminal defense attorneys at (617) 742-6020.

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