Fusion Center Gang Databases Are Unreliable But Can Continue, Appeals Court Says

By MassPrivateI

A recent Boston Globe article claimed that an Appeals Court dealt a blow to the Boston Regional Intelligence Centers’ (BRIC) gang database by pointing out flaws to their point system. But a closer look at the ruling reveals a far more troubling issue with fusion centers and their ruling.

Initially, the opening statement looks good… “Flaws in that database, including its reliance on an erratic point system built on unsubstantiated inferences, compel us to conclude that the credibility judgment — and, in turn, the rejection of Diaz Ortiz’s request for relief — is not supported by substantial evidence.”

The ruling reveals how BRIC generates a “Gang Member Verification Report” (GMVP) for individuals who have been entered into a secret database based on a highly questionable points system. The secret GMVP gets forwarded to Boston school police where officers can add more points to GMVP based on what they observe.

1.) September 13, 2017 (2 points): Diaz Ortiz was smoking marijuana on the front steps of a building with another Hispanic teenager, who is identified in the police report as a “known MS- 13 gang member.”

2.) November 28, 2017 (5 points): Boston School Police officers saw a student wearing a “full face mask” and spoke with the student, whom they identified as a member of MS-13. That student then walked up to a group of other teenage boys, including Diaz Ortiz, and “met with” them.

3.) April 3, 2018 (2 points): Diaz Ortiz and another Hispanic teenager were found skipping school and smoking marijuana in a park. The police report states that the two teenagers were “known to the officer as verified MS-13 gang members”16 and had a “history of carrying weapons,” but none of the prior reports in the gang package mention Diaz Ortiz carrying a weapon. The officer did a pat frisk of the two teens and found an aluminum baseball bat in the right pant leg of Diaz Ortiz’s companion, which the officer confiscated. The teens were warned about smoking marijuana in a park and released.

4.) May 28, 2018 (2 points): Diaz Ortiz was “loitering” with three other Hispanic teenagers whom the officer conducting the FIO “knew” to be MS-13 members.

5.) June 1, 2018 (4 points assigned for two FIOs): (1) Diaz Ortiz was seen with a group of teenagers in front of a building where one member of the group lived, which officers noted was “a known hangout and address” for MS-13 members; and (2) Diaz Ortiz was stopped with two other teenagers, one of whom officers believed had a warrant out for his arrest, but when the officers ran their names there were no outstanding warrants.

6.) June 21, 2018 (2 points): Diaz Ortiz was sitting on the track benches of the East Boston Stadium after hours with four other teenagers, three of whom were “verified” MS-13 “associates.” Officers told them to leave. A notation on the report made by HSI Special Agent Connolly observes that the East Boston Stadium is “notorious for MS-13 gang activity.”

7.) August 1, 2018 (2 points): Officers stopped Diaz Ortiz and two other Hispanic teenagers as they were walking out of a park. Diaz Ortiz was carrying a backpack and told the officers that he had a metal chain with a padlock in it that he used for his bicycle. A notation made by Special Agent Connolly on a gang intelligence bulletin about the encounter asserts that “MS-13 gang members commonly carry large metal chains with locks to be used [i]n gang related assaults.”17 The officers confiscated the chain and released the three teenagers. Nothing in the gang package suggests that Diaz Ortiz ever used the bike chain and lock as a weapon.

It is easy to see how flawed fusion center gang databases really are by going date by date:

1.) Smoking pot with a so-called “known gang member,” according to the police is worth 2 points.

2.) Post-COVID America would laugh at the characterization of a face mask qualifying someone as a gang member. Imagine talking to a group of friends when someone police consider a gang member walks up to join in the conversation and now everyone is labeled a gang member and worth 5 points.

3.) Police claim that hanging out with friends, who are allegedly gang members, in a park with a baseball bat and smoking marijuana is worth 2 points.

4.) As I mentioned earlier, hanging out or “loitering” with friends that police consider to be gang members is worth 2 points.

5.) Hanging out with friends in front of a building that police label a gang address is worth 4 points.

6.) Sitting on track benches in a public stadium with people who the police call “associates” of a gang is worth 2 points.

7.) Walking out of a park with a bike chain in a backpack is worth 2 points because police claim gangs have been known to use them to commit assaults.

Assessing gang member points to youths is not like a Harry Potter book “ten points to Gryffindor”; unfortunately, kids do not get rewarded for having the most points.  Remember,  kids as young as 1 year are being entered into gang databases via fusion centers’ point system, which will follow them throughout their lives.

The Appeals Court ruling also revealed that fusion centers create “gang packages” of youths police officers accuse of being gang members.

“Over objection from Diaz Ortiz’s counsel, the government introduced a package of Gang Assessment Database documents (Gang Package) as rebuttal evidence during its cross-examination. The package included a memorandum by Special Agent Sean Connolly of the DHS describing Diaz Ortiz as a verified MS-13 gang member based on a collection of law enforcement field reports drawn from the database. Diaz Ortiz’s attorney argued that the gang package was not reliable and [was] fundamentally unfair, asserting that the field reports contained mistakes and inconsistencies.”

The Appeals Court found the point system and gang packets to be “problematic” because BRIC could not or would not explain how point values are assessed.

“Here, it turns out, the agency’s (BRIC) reliance on the challenged evidence is problematic for the reasons we now explain. The record is silent on how the Department determined what point values should attach to what conduct, or what point threshold is reasonable to reliably establish gang membership. In other words, while acknowledging that Professor Thomas Nolan had raised serious doubts about the gang database’s reliability, the BIA responded to those concerns in circular fashion — relying on the questionable data about Diaz Ortiz’s peers to deflect the criticism of the questionable data about Diaz Ortiz.”

This paragraph alone should make everyone question fusion centers and gang databases; at the very least there should be federal regulations that define what constitutes a gang point system, right?

Well, not according to the Appeals Court, who said…

“We are not suggesting that the federal regulations governing criminal intelligence information establish an exclusionary rule applicable to immigration proceedings. Nor are we saying that IJs are entirely precluded from admitting into evidence, and considering, information contained in police reports such as those in the BRIC Gang Assessment Database.”

The Appeals Court’s reluctance to outright ban fusion center gang points systems is especially appalling when a few paragraphs later they admit that fusion center gang databases are fundamentally flawed.

“The BRIC database does not contain reasonable, substantial, and probative evidence of gang membership or association, and the government provided no other evidence to substantiate the inferences and conclusions drawn from the police reports via the BRIC point system. Put differently, the government’s evidence was simply not of a ‘kind and quality’ that a reasonable fact finder could find sufficient” to support labeling Diaz Ortiza a gang member.”

The Appeals Court seems to go out of its way to OK the use of gang member designations based on police officers’ flawed judgements.

“We wish to make clear that we are not necessarily prohibiting all use on remand of the police reports contained in the gang package. Those reports include uncontested percipient facts.”

It is extremely frustrating to read a decision like this filled with such ambiguity. It seems like justices know fusion centers are fundamentally flawed but decline to make any meaningful changes.

Source: MassPrivateI Blog

Image credit: Boston25News

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