As you all know, I have a deep and abiding interest in issues of racial justice. I write on a variety of issues on the topic, but one of the more interesting and distressing ones is racial profiling, and the general treatment of (mostly young) Black men by the police. You can read a wide variety of polemics on why racial profiling is bad, ineffective, or immoral. But the tales of racial profiling rarely make it out, because the people being targeted are primarily poor and don't have access to major media arms to publicize their stories. I excerpted from a stellar Washington Post article once that was an exception to this rule. And now, I want to share another story, which I will leave without comment.
The author is andre douglas pond cummings, and he is a law professor at West Virginia University. Prior to that, he was a corporate attorney for the prestigious Chicago firm of Kirkland & Ellis, which was his position at the time of these events.
While practicing corporate law at Kirkland and Ellis in Chicago, once a week (or sometimes twice) I quietly left the firm at 7 P.M. or so, to participate in a formal inner city youth mentoring project. I drove due west from downtown Chicago, 200 W. Randolph Street, to the "west side" near Grand Avenue and Monticello, one of the many "west side" neighborhoods in Chicago, where I met up with several young men and women, typically between the ages of fourteen and eighteen, and drove them to a local church where we did homework together for two hours or so. I engaged in this mentoring program all three years that I lived and worked in Chicago, prior to entering the legal academy. Up close and personal, I witnessed a variety of astonishing incidences:
As a reward for homework well done and high marks received, I planned to meet several of my mentees on a Friday night at 9 P.M. for dinner and a movie downtown in "the Loop." On this particular Friday night, I could not break away from K & E to make my 9 P.M. appointment with the mentees. By the time I was able to finish my work it was 10:30 P.M. or so. I immediately retrieved my car and drove out west to see if the disappointed youngsters would at least like to grab a late dinner in downtown Chicago. After picking up two young men, the three of us were accosted by two members of the Chicago Police Department ("CPD"). The two officers quickly turned into six and before we knew what was going on we had been cuffed, searched, my vehicle had been tossed and we had been tussled and menaced by the officers. Constitutional search and seizure violations were plentiful. Apparently, I had trespassed into a "well known" drug area, and that my interaction with two young black males indicated a "clear" drug transaction.
Once I was able to force the officers to realize that I was a practicing attorney, the four "extra" officers disappeared quickly, and we were left standing at the rear of my car, the contents of our pockets strewn across the trunk, my vehicle car doors open and contents of my glove box strewn about, and having heard enough threats to "stay out of this well known drug area" to last a good long time. This experience, where I was personally bullied and where attempts to physically intimidate all three of us had been exercised, was one that I could not let pass. I wrote a letter to the supervising lieutenant in that police precinct and clearly delineated the experience and made demands on the police department as to how I thought they should appropriately respond to the clear constitutional violation of our Fourth Amendment rights. The initial officers on the scene had an internal affairs investigation opened into their behavior on that evening and both were required to hire attorneys to represent their interests. Some of my demands were met by the CPD while the eventual conclusion to the investigation was a finding of "no cause." Apparently, we needed more witnesses than the three of us involved in the police malfeasance, in order to effectuate suspensions of these officers.
As we continued on our way toward downtown Chicago, one of the high school students remarked that he was unfazed by this incident. "Happens every day," he stated nonchalantly.
Here is the letter Professor cummings relayed to the Chicago Police, requesting an investigation:
December 15, 2000
Chicago Police Department
3151 W. Harrison Street
Chicago, IL 60612
Dear Lt. Banaszkiewicz:
I am writing today to formally notify the Chicago Police Department and the 11th District, located in the west Chicago area of an incident of lawless policing and to bring to your attention the despicable behavior of Officer McGovern and his nameless partner. My rights as a United States Citizen were seriously violated by Officer McGovern and his nameless partner, as were the rights of two of my colleagues, on the evening of November 17, 2000, at approximately 11:30 p.m. at the intersection of Central Park Avenue and Grand. As I look back at the events of November 17, 2000, I become amazed at the egregious nature of the actions of Officer McGovern.
I work as an attorney at Kirkland & Ellis in the Chicago, Illinois office. I also serve as a youth group leader and youth mentor in my attending church congregation. I derive great satisfaction from my work as a "Big Brother" type of mentor as I interact regularly with young men and young women in the west Chicago area, particularly in the neighborhoods of Monticello and Augusta, Ridgeway and Augusta and surrounding blocks.
On the evening of November 17, 2000, I prepared to carry out a planned activity with several of the young men that I regularly mentor. I planned to pick up two or three young men at 9:00 p.m. or thereabout, bring them downtown for a night out including dinner and movies at the 600 N. Michigan theater. Unfortunately my work at Kirkland & Ellis kept me overtime and I wasn't able to break free until 11:00 p.m. or so. After calling the young men, we decided to make a late dinner downtown and I proceeded from the Amoco Building to a home on Monticello Drive near Augusta and Monticello, to meet the young men.
At approximately 11:30 p.m., I sat in front of one of the young men's houses, honked and waited for them to come outside. One young man walked out and climbed into the back seat of my car. In this particular neighborhood, six or seven teenage boys and girls attend our local church congregation. While I sat in my car waiting on the other young men, several of my attending church friends and youth walked up to my car and exchanged greetings. A couple of those young men asked if they could still come for the activity downtown and I responded that they needed to get permission from their parents to be out this late.
After waiting approximately five minutes, two young men had entered my car with permission to have a late dinner while two other young men returned to my car to relate that their mothers would not let them go out so late. After making plans with the two young men who could not go to return two days later to pick them up for church services Sunday, [*69] November 19, 2000, at 10:00 a.m., we left and drove north on Monticello toward Division. After turning right and then left onto Central Park, I drove slowly up to the red traffic light at the intersection of Central Park and Grand. At this point, I was calmly driving my car at a safe speed.
As I waited patiently at the traffic light, I noticed a Chicago police department squad car pull up behind me very quickly. Both Officer McGovern, who was driving, and the nameless partner, who was the passenger, jumped out of the squad car and rapidly approached both sides of my car, Officer McGovern on the driver's side and the nameless officer on the passenger's side, shining their flashlights into my car. I told the two young men to remain calm and one of the two young men responded "these cops look thirsty." I rolled down the window of my car, preparing to talk with the officer and pass him my driver's license when Officer McGovern loudly ordered "get out of the car." I was surprised by this request, in light of the fact that Officer McGovern did not articulate any reason for this request, and I responded "what."
At this point Officer McGovern grabbed the door handle of my car, flung it open and said "get out of the car, asshole." I quickly complied. Officer McGovern held his flashlight approximately four to six inches from my face and ordered "open your mouth, asshole." I opened my mouth. Officer McGovern told me to lift my tongue, which I did. Still, with no explanation, Officer McGovern ordered me to walk to the rear of my car whereupon he told me "you are fucked, we are seizing your car, your car is mine." Because Officer McGovern was so needlessly aggressive and obviously full of adrenalin, I did not respond or ask any questions at this point. I had the very strong feeling that if I protested at all, the consequences could be dire, including a genuine fear that I might be beaten or shot. This strong feeling was based on the ultra aggressive approach and barely controlled rage exhibited by Officer McGovern.
As I walked to the rear of my vehicle, Officer McGovern next ordered the young man in the back seat to get out of the car. As the young man was getting out of the car, I turned to face Officer McGovern and placed my hands on my hips. Thereupon Officer McGovern shouted at me to not put my hands on my hips, and to place them "on the trunk, asshole." At this point Officer McGovern walked the young man to the rear of my car, grasped my left hand and firmly clasped one side of his handcuff onto my left wrist. Then, Officer McGovern seized the right hand of my youth mentee and cuffed his right wrist leaving us handcuffed together.
Meanwhile, the nameless officer had pulled the other youth mentee out of the passenger seat in my car and was engaging him in some type of conversation. Also, at this time while we were stopped, at least two additional law enforcement vehicles stopped at the intersection with lights flashing and proceeded to get out of their cars and circle around the scene with their flashlights shining on us and into my car. This unusual display of force, at least three squad cars and at least six officers, seemed sadly inappropriate.
At this point Officer McGovern addressed me again and stated, "We know that you just bought, and we are taking your asses in and taking your car away from you as soon as we find it." At last, a full five to ten minutes after we were stopped, we were alerted to what the officers suspected us of and why we were being held. I turned my head toward Officer McGovern [*70] and stated, "You guys are making a mistake." Officer McGovern loudly responded, "Shut up." He then asked, "Where is it?"
Neither the youth mentee I was handcuffed to nor I responded to Officer McGovern. Thereupon, Officer McGovern proceeded to frisk me in a "pat down" fashion. Fully aware of my "Terry frisk" rights, I wondered what reasonable articulable suspicion Officer McGovern thought he had to first pull me out of the car or to pull my colleagues out of the car, and I also wondered what reasonable articulable suspicion he then had to pat me down for weapons. Neither the young men nor I acted threateningly toward the police in any way or fashion and clearly none of us had ingested drugs nor was there any type of sign that we had used drugs. Imagine my surprise when Officer McGovern, after feeling nothing in the pat down, proceeded to then place his hands directly and fully into each one of my pockets. Officer McGovern placed his hands squarely into the side pockets of my winter overcoat, going so far as to pull the pockets completely out, and then reached into both of my back pants pockets and both of my pants front pockets. Upon finding nothing in my pockets but my wallet and a chap-stick, which he pulled out and placed on my trunk, Officer McGovern turned to my fifteen-yearold youth mentee, who was visibly upset, and asked, "Where is the stuff, asshole?"
The youth mentee handcuffed to me did not answer the officer. I noticed the young man's obvious fear and with my left handcuffed hand placed it on the young man's cuffed right hand and said, "It's gonna be all right." Thereupon Officer McGovern snapped, "I told you to shut up." Officer McGovern then completely ignored the "Terry frisk" with the young man and proceeded to search him by placing his hand squarely inside the pockets of the young man's coat and pants. Upon finding nothing again, Officer McGovern for a third time threatened to haul us in and seize my car.
At this point, Officer McGovern left us standing at the rear of my car and proceeded to enter the front seat of my car and began searching my car. Officer McGovern pulled my sun dashboard protector from under my front seat and also opened the ashtray, glove compartment and generally searched my vehicle for what seemed to be several minutes.
While Officer McGovern was searching my car, the nameless partner approached me and without asking, opened my wallet and removed my drivers' license and left the three of us standing at the rear of my car. I assumed that the nameless officer was returning to the squad car to run my license for warrants. Finally Officer McGovern reemerged from the search of my car, obviously finding nothing, and approached us again. Tired of the bullying, the attempts at intimidation and the menacing and threats, and finally feeling safe from physical harm (Officer McGovern's demeanor had calmed somewhat, as his searches turned up no drugs), I told Officer McGovern to look in my wallet where he would find my active Illinois attorney "bar card." Officer McGovern told me not to "lie" to him, and I then firmly told him to look inside my wallet and retrieve my attorney license. Officer McGovern then retrieved my bar card, looked at it very closely for several seconds and then changed his manner and tone very noticeably.
After inspecting my attorney card closely, Officer McGovern immediately uncuffed me and uncuffed the youth mentee that had been handcuffed [*71] to me. Officer McGovern then started asking what I thought I was doing in that neighborhood which he repeatedly called a "well known dope area." I immediately responded to Officer McGovern that I thought he should have asked me that question from the beginning before he pulled me out of my car, cursed me, tried to menace me, and repeatedly threatened me. I then carefully explained that I was a youth mentor, that these two young men attended my church and were part of the group that I mentored. Officer McGovern seemed incredulous and stated that we were in a dangerous well-known drug area and that we didn't belong there. I again repeated that I was a youth mentor, that I was picking up these young men from their homes and that we were heading downtown for an activity. Again, incredulous, Officer McGovern told me I had no business being in that neighborhood, that it was a well-known drug area and that somebody had been shot in that area recently.
Tiring of this sudden incredulousness, I told Officer McGovern I had every right to be in that neighborhood, that I knew it was a dangerous drug area, and that was exactly why I was trying to mentor these young men from this area.
By this time all of the other officers and cars somewhat suddenly dispersed. I then told Officer McGovern that I knew that he did not have probable cause to search me, my colleagues or my car, that I knew he did not have reasonable, articulable suspicion to hold us and that he had no reason to seize us by handcuffing us. At that point I looked squarely at Officer McGovern's name plate and said, "Officer McGovern, I am going to need your badge number and your supervising officer's name." Officer McGovern hotly responded, "Don't concern yourself with that, just go on about your business." I replied that I was in fact going to concern myself with this gross violation of my constitutional rights and the constitutional rights of my friends.
After asking for, and being denied the information regarding Officer McGovern's badge number and supervising officers' name, I turned to face the nameless partner of Officer McGovern. I stated clearly, "Officer, I am going to need your name and badge number." The nameless officer turned away from me shielding his name tag from my view and walked briskly to the squad car. I followed the nameless officer to the door of the squad car and three additional times I requested this nameless partner's name and each time I was flatly ignored. Because of this refusal to give me his name, I have referred to Officer McGovern's partner as the nameless officer in this letter. Four times I requested the nameless officer's name, and four times I was ignored.
Finally, Officer McGovern and the nameless partner drove away leaving the three of us standing outside my car, our pants contents strewn across the trunk of my car, both of my car doors open, the pockets of my coat pulled out and with no apologies or explanations.
Unfortunately for these two offending officers this illegal stop and search did not occur in a vacuum and I was not alone which would allow the two officers to lie and cover up for one another placing me in a situation where it would be my word versus the word of two Chicago police officers. Rather, I have two witnesses that will back up every word in this letter and a church full of parishioners that will testify to the honesty, truthfulness, veracity and goodness of these two young men.
[*72] In sum, I view this unfortunate scene as follows: Officer McGovern and his nameless partner violated our constitutional rights blatantly and with gross disregard. We were, without doubt, illegally searched and seized in violation of our Fourth Amendment right to privacy. I can think of no probable cause argument that can be forwarded in good faith. Also, it is very questionable as to whether sitting in my car in a well-known dope area, conversing with several young men can even give rise to a basic reasonable suspicion. At most, a stop with a couple of questions could possibly pass muster, but a full blown stop, search and seizure, together with blatant attempts to bully, intimidate, and threaten is so clearly egregious and beyond the scope of authority that it seems ridiculous now. Only it is not ridiculous. Officer McGovern and the nameless officer not only illegally seized us and searched us, but they blatantly tried to menace us, intimidate us and bully us. I can only be grateful that these two offending officers did not plant drugs or weapons on us at the scene of the illegal search.
I am also sad and ashamed to report that as we drove away from the scene, both of the youth mentees described a genuine fear of and disdain for the Chicago police department and a feeling that such police officers as Officer McGovern and the nameless officer make their lives even more dangerous on a day to day basis, not safer. Finally one of the young men responded, "This kind of thing happens all of the time. I told you they were thirsty."
In light of all of the foregoing, I request that the following take place:
A. I want to receive a telephone call from the watch command officer or the supervising officer on duty November 17, 2000 at 11:30 p.m. I can be reached at the direct dial number above at Kirkland & Ellis.
B. I want to see a formal complaint placed into the file of both Officer McGovern and the nameless officer (obviously I want the name of the other offending officer).
C. I want to see an investigation opened into this constitutional violation and to hear the explanations of Officer McGovern and the nameless officer.
D. I want to see that written apologies are forwarded from the offending officers to the two young men that were bullied, threatened and menaced by them. The letters of apology can be forwarded to me here at Kirkland & Ellis. I will deliver the letters to the boys.
E. If the investigation bears my record out, I would request that both Officer McGovern and the nameless officer be suspended for several days to remind them and the officers in your district that rogue policing and the menacing of innocent citizens is not tolerated.
Thank you very much for your time and attention. I will expect to hear from you in short order.
andre douglas pond cummings
cc: Alderman Michael Chandler
andre douglas pond cummings, Grutter v. Bollinger, Clarence Thomas, Affirmative Action and the Treachery of Originalism: "The Sun Don't Shine Here in this Part of Town", 21 Harv. BlackLetter J. 1 (2005).