Statement on behalf of the
American Civil Liberties Union of the District of Columbia
before the
D.C. Council Committee on the Judiciary and Public Safety
Performance Oversight Hearing for the
Metropolitan Police Department
by
Ahoefa Ananouko, Policy Associate
February 23, 2023
Hello Chairperson Pinto and members of the Committee. My name is Ahoefa Ananouko, and I present the following testimony on behalf of the American Civil Liberties Union for the District of Columbia (ACLU-DC).
Over the last few years we have come before the D.C. Council to share our concerns about harmful police practices and called on elected officials to take measures to protect fundamental civil rights and liberties of District residents—especially the District’s Black communities, who have suffered generations of trauma caused by policing. We have continuously urged the Council to put in place mechanisms for greater accountability when police violate people’s constitutional rights, Department policies, or District law. We have also urged increased transparency from the Metropolitan Police Department (MPD) regarding its functions, practices, and outcomes. Finally, we have advocated for and elevated the demands of young people who have asked that police be removed from their schools because they experience police harassment, not only in their neighborhoods but also, in their schools.
We are encouraged by steps the Council has taken, such as passing the Comprehensive Policing and Justice Reform Act of 2021 and continuing the phaseout of School Resource Officers (SROs). Now, the Council must take bold actions to combat the recent narratives around crime in the District and continue towards a path that will actually make D.C. communities feel and be safer.
MPD SHOULD DISBAND THE GUN RECOVERY UNIT
The ACLU-DC calls on the D.C. Council to follow in the footstep of Memphis, Tennessee and disband MPD’s Gun Recovery Unit (GRU). The GRU has been responsible for some of the most egregious conduct to come out of MPD. This specialized unit is intended to focus on the prohibition and recovery of illegal weapons and the apprehension of people involved in illegal gun crime in the District—goals we all support. However, the unit’s approach to gun recovery reflects the dangerous and ineffective methods employed by MPD writ large. The GRU often deploys racist tactics that disproportionately target Black men in the District and violate people’s constitutional rights by stopping and searching them without probable cause. The GRU’s practice of sexually invasive searches has also caused unjustifiable harm to community members.
There have been various cases and lawsuits against MPD describing some of the unconstitutional actions of the GRU. , In 2018, the ACLU-DC represented M.B. Cottingham in settling a case against then-GRU officer Sean Lojacono for an exceedingly invasive bodily search. The lawsuit stemmed from a 2017 incident in which Mr. Cottingham was stopped for an open container violation. After Mr. Cottingham consented to a frisk, Officer Lojacono went far beyond what should have been a limited pat-down for weapons. Officer Lojacono jammed his fingers between Mr. Cottingham’s buttocks and grabbed his genitals. Mr. Cottingham physically flinched and verbally protested, making clear that this highly intrusive search was not within the scope of the frisk to which he had consented. Officer Lojacono responded by handcuffing Mr. Cottingham and returning to probe the most sensitive areas of his person — two more times. Officer Lojacono was fired in September 2018 for a similar incident, which happened to occur just 30 minutes after the Cottingham encounter.
A 2020 class action lawsuit alleged that the GRU “has a policy of stopping, frisking, and searching Black people without reasonable suspicion or probable cause, and that they fabricate information to justify the stops, frisks, and searches.” The lawsuit also claimed that officers frequently use a person’s presence in a “high crime” neighborhood as a reason to approach them, , and characterize a person’s response to being asked to be searched as “suspicious” in order to justify a search, even if the person did not consent. Anyone would be expected to get nervous if they were confronted by someone they know for sure has deadly weapons at their disposal and the law on their side if they kill. The stark power imbalance between police officers and members of the public can also not be overstated. And given the long history of police brutality against Black people and communities, it should come as no surprise that Black people are especially on high alert in these types of circumstances.
In an April 2021 report by the Appeal, a former command-level MPD official shared that the GRU’s harmful practices are driven by MPD leadership’s focus on statistics—how many guns are recovered and whether an arrest is made—rather than on how guns are recovered and how arrests are made. Although MPD officials (including Chief Contee) have claimed the Department does not use “jump-outs,” the veteran MPD official said that jump-outs are central to the Unit’s approach gun seizure. This was confirmed in a September 2020 National Police Foundation report, which stated not only that MPD engaged in jump-outs, but also that the Department itself planned them. Another lawsuit by a veteran sergeant of the MPD alleged retaliation from Department leadership for speaking out against the use of jump-outs. The veteran sergeant contended that the practice was encouraged by commanders and fellow officers. ,
A remnant of the War or Drugs era, jump-outs are a particularly aggressive and intimidating form of stop and frisk that have engrained fear and distrust of police among Black and brown communities. , These interactions can lead to unnecessary excessive use of force and cause irreparable damage. Jump-outs are an abusive and dangerous practice and the ACLU-DC calls for the practice to be banned entirely as a method within MPD.
As previously stated, the practices of the GRU are reflective of MPD’s dangerous and ineffective approach to gun recovery in the District. The behavior and conduct of MPD officers often violates policies and directives of the Department, escalates and incites violence, and puts both community members and officers at risk of serious harm.
In September 2020, MPD officer Alexander Alvarez shot and killed Deon Kay in Southeast D.C. Body-worn camera footage showed the officer running out of his car and firing his gun within a matter of seconds of arriving on the scene, ending the life of the then-teenager. The killing was characterized as “justified” by MPD and the D.C. Auditor, both of which claimed the officer acted in self-defense because he was under imminent attack —even though Kay was running away at the time he was shot. This does not make logical sense, especially since both the D.C. Auditor and the Use of Force Review Board have found errors in officers’ conduct during similar deadly encounters.
These incidents call for all of us, especially District leaders, to evaluate how we assess officer conduct in situations in which officers kill community members. We must interrogate a system that has found, time and again, that officers are ignoring protocols that could drastically change the outcomes of their interactions with members of the public, yet justifies the harmful actions of officers because they can make the argument that they feared for their life. In the case of Deon Kay, officers showed up to the area after seeing a video on social media of a group of young Black men they believed had firearms. Upon arrival, the officer made no attempt to de-escalate, and there was no warning or directive given to Kay to drop a weapon — a weapon that Kay can be seen throwing in the air and which was recovered almost 100 feet from his body.
Police officers are given the benefit of the doubt, while members of the public have no recourse for injuries caused by police. We believe that this imbalance further emboldens police to exhibit behaviors that are detrimental to the safety and wellbeing of people in the District. District leaders must not only commit to, but actually do, the hard work of coming up with better commonsense solutions to gun violence that do not sacrifice the welfare and lives of Black District residents. D.C. residents’ rights are as deserving of protection as law enforcement’s. D.C. should look to other jurisdictions for safer solutions to stem gun violence and develop more effective methods to get guns off of the streets.
In July 2021, for example, New York became the first ever state to enact a law that offers a way to hold the gun industry accountable for how their products are used. The law allows public officials and individuals to file a lawsuit against a gun manufacturer or dealer for knowingly engaging in reckless and irresponsible business practices that lead to injury and death. The law recognized the dangers that the unlawful or unwarranted manufacturing, sale, importing, and marketing of firearms poses to public health and safety. The legislation was supported by a coalition of 18 attorneys general from around the country, who asserted that the law would protect the public health, safety, and wellbeing of New York residents. Delaware, New Jersey, and California have also enacted similar legislation. We acknowledge and understand that it may take time to see the intended results of such changes. Nevertheless, it is necessary to identify and employ other methods of addressing public safety concerns, as the status quo approach of harmful police practices—which have had decades of opportunity—have not yielded the promises used to justify their implementation.
MPD AND THE COUNCIL MUST ADDRESS THE DEPARTMENT’S LACK OF TRANSPARENCY
Transparency regarding police practices is a vital aspect of improving public safety in the District. Transparency not only allows leaders and advocates to determine where areas needing improvement exist, but it also builds trust within communities who have long suffered the injustices of this nation’s policing apparatus.
A chronic issue we have observed with MPD related to transparency is the flouting of mandates that require the Department to collect and report certain types of data.
In 2016 the D.C. Council unanimously passed the Neighborhood Engagement Achieves Results (NEAR) Act. A key provision of that law mandates that MPD collect detailed and extensive data about every stop that MPD officers carry out. These data are critical for assessing whether racial bias influences policing in D.C. and ensuring that police are not unconstitutionally implementing stop and frisk. As highlighted in the above section discussing conduct of the GRU, police interactions in the District disproportionately impact Black people.
Since enactment of the NEAR Act, MPD has been either entirely unwilling or slow to collect and publish the required data. MPD did not collect the required data for three years, dragging its feet until the Black Lives Matter D.C., Stop Police Terror Project, and the ACLU-DC sued and obtained a court order that demanded MPD collect the data required by law. In 2019, MPD committed to publishing the data every six months, but failed to release any data for 2020 until the ACLU-DC filed a FOIA request and yet again sued the District over noncompliance with legal requirements. The Department did not release any NEAR Act data for 2022 until January 27 of this year, and the data released only covered the first half of the year. Obviously, for the data to be helpful, policymakers, advocates, and community members have to be able to see it. By breaking its public commitment to publish the data and failing to respond promptly to FOIA requests for it, MPD obstructs that critical objective.
MPD’s defiance of NEAR Act data requirements is a symptom of a larger transparency problem within the Department. To date, MPD has not published data on youth arrests covering any portion of 2022, pursuant to D.C. Code 16-2333(f).
In September of 2020, the National Police Foundation (NPF) conducted an assessment of MPD’s Narcotics and Specialized Investigations Division (NSID), which includes the GRU. Pursuant to the legislation that called for the assessment, the report was supposed to cover the period of January 1, 2017 through December 31, 2019. Due to data being unavailable for earlier periods, the NPF was only able to conduct its assessment on data from August 1, 2019 through January 31, 2020. This meant they were only able to get a limited scope of the activities and complaints involving the NSID.
The Department has historically been intransigent toward requirements and recommendations intended to improve its functioning, whether those were based on mandates from enacted laws or recommendations from entities such as the Office of Police Complaints (OPC) and the Office of the D.C. Auditor. MPD has had no incentive to change because no mechanisms currently exist to hold it accountable for such behavior. Without meaningful consequences, MPD will likely continue contravening District laws, which they are not only bound by, but sworn to uphold and charged with enforcing in our communities. It is the Council’s duty as an oversight body to ensure that agencies are doing what is required of them. It is also the responsibility of the Council to hold agencies accountable when they are not performing their duties.
As the Council continues contemplating ways to bring about more transparency and accountability to policing in the District, we hope you consider the following recommendations for addressing this issue:
- Regarding the stops data, the Council should pass an amendment to the NEAR Act requiring MPD to publish stops data every six months. The NEAR Act mandates collection, but does not currently require publication, of stops data. Mandating publication of the data would add an accountability measure that currently does not exist.
- With regard to NEAR Act stops data, the Council should consider requiring MPD to give the OPC access to the raw data and should authorize OPC to release the data. This could get around the issue of waiting on MPD to release the data and would add an additional oversight mechanism.
- Recognizing that the issue of noncompliance goes beyond the NEAR Act stops data, as a more general solution the Council should also consider tying MPD’s budget to its compliance with certain mandates, including data reporting. At the very least, the Council should consider implementing a system of fines and fees for violations of such requirements.
We understand the Council’s reluctance to take any action that would drastically reduce MPD’s budget. However, without drastic measures, MPD has no incentive to change the Department's behavior of deliberately disregarding District laws. These solutions could also be implemented District-wide for all agencies so that the Council would not solely be singling out MPD.
POLICE-FREE SCHOOLS, YOUNG PEOPLE, AND CRIME
The ACLU-DC urges the D.C Council to continue on the path to removing SROs from all DCPS public and charter schools, and eventually disbanding MPD’s School Safety Division in 2025. The inclusion of this provision in the 2022 Budget Support Act was a monumental moment, showing that Councilmembers had heard the pleas of students—most of whom were Black—who demanded, “Love us, don’t harm us.” Their requests were clear and straightforward: replace police in schools with resources that will actually create a safer learning environment where they could thrive. The Council reaffirmed its commitment to these young people last year when it rejected the Mayor’s proposal to repeal the BSA subtitle and cease the reduction in SROs.
We are calling on the Council to once again reject the Mayor’s calls to place even more police in District schools. As we have stated time and again, police in schools do little to deter crime; they are merely reactive. Having police in schools contributes to the criminalization of students for behavioral issues that police are ill-equipped to address, since they are not trained to focus on students’ social and emotional wellbeing. Black and Latinx students, as well as students with disabilities—who are already targets of harsher school disciplinary responses to their behavior due to racial and gender stereotypes—are disproportionately impacted by police presence in schools. They are suspended and expelled at considerably higher levels than white children in schools and are referred to law enforcement at far greater rates when there are police officers present in schools. Police presence in schools induces fear, creates anxiety, alienates students, encourages mistrust between peers, and leads to adversarial relationships with school officials.
The Council should focus its energy on working with schools to ensure they get the non-police resources they need to create safer school communities. There should be ongoing discussions about alternative interventions that will actually support students’ needs. The Council should also interrogate why the Executive has failed to work with schools in good faith to develop better school safety plans that do not rely on policing young people.
The ACLU-DC shares the concerns around public safety and the range of harms experienced by members of D.C. communities. But we caution against the spreading of narratives that over-sensationalize crime in the District in order to justify placing police back in schools. Most crimes that would warrant police involvement do not occur inside schools or on school grounds., Violent crime in the District has generally been on a downward trend, per MPD’s own data.
It is extremely dangerous and harmful to blame young people for driving crime and use them as scapegoats for the failings of leaders whose only proposed solution has been more police and harsher punishment. Pushing a carceral narrative and shuffling young people through the criminal legal system is not going to solve the underlying issues communities are facing. Decades of data and experience have shown—and continue to show—that this approach will never work. So, it is baffling that District leaders would want to revert to such harmful methods. What is necessary is a fixing of the structural issues that contribute to the deterioration of Black communities. And that begins with District leaders honestly acknowledging that they have failed young people. District leaders must work diligently on more effective solutions that would actually address the underlying circumstances that contribute to young people’s behaviors.
CONCLUSION
We cannot emphasize enough how important it is that the Council and District leaders steer away from dated “tough on crime” narratives. A carceral approach to addressing public safety concerns fails to realize the failures of a system undergirded by centuries of racist ideology, which has led to disastrous policies and even more disastrous circumstances—the impacts of which we continue to witness today. The Council has taken important steps toward improving public safety in the District and it must continue to build on those steps rather than move backwards.
