Bogus Traffic Stops Are Everywhere--Even in Berkeley

Becky O'Malley
Friday July 31, 2015 - 01:09:00 PM

Stories about African-Americans slain after traffic stops continue to proliferate. Is this a new phenomenon? No, of course not, just new video technology which is finally preventing some police officers from getting away with murder some of the time.

Let’s, for the moment, leave out the killings which were over-reaction to calls about people having mental or drug-induced breakdowns, cases of mistaken identity, or excessive use of force by a policeman making a lawful arrest.

Let’s just consider the number of Black people all over this country (and in the whole European-descended world where African descendants also live) who are stopped on trumped up traffic charges just because of what they look like, because the people in power, sometimes consciously or even more often subconsciously “feel threatened” when they see a dark face. It happens all the time, it happens everywhere, and sometimes it has murderous consequences when the arresting officer panics.

And yes, it even happens in Berkeley. Late last January a young Black guy, Berkeley resident LaMonte Earnest, a Coast Guard veteran who has worked for the U.S. Postal Service for almost ten years as a mail carrier, was on his way home from accompanying his pregnant wife for a sonogram. Heading southbound on San Pablo, he wanted to go east on Dwight Way.  

His attorney’s account can take it from here: 

“He was the third car back in the dedicated left-turn lane, with his left turn signal activated. The left turn arrow was red. The median on San Pablo Avenue is lined with bushes. 

“The left-turn arrow turned green, and he followed the cars in front of him and made the left turn onto Dwight, driving eastbound. As he turned, he observed an unmarked police vehicle stopped in the far right-hand lane, westbound on Dwight Avenue, about to turn right onto San Pablo. Mr. Earnest looked at the driver of the police vehicle, who then made eye contact with Mr. Earnest. Mr. Earnest proceeded the two blocks east to Mabel Street, and turned right. He drove one more block to his home, and as he pulled over in front of his house, the police vehicle suddenly appeared behind him, with its lights activated. 

“Notably, based on the police vehicle’s position when Mr. Earnest first observed it, driving in the opposite direction from Mr. Earnest’s home, the officers must have driven very quickly through a residential neighborhood, driving at least two more blocks than Mr. Earnest, in order to catch up with him. 

“The officers who conducted the stop, Ofc. Kelvin Gibbs (#140), Ofc. Kevin Kleppe (#115) and Ofc. Jason Collier (#75), were part of the Berkeley Police Special Enforcement Unit Drug Task Force. The three officers, dressed in all black tactical uniforms, exited the vehicle and took defensive stances, one at each of the front windows, and another at the back, around Mr. Earnest’s vehicle. They had their hands on their gun holsters. The officer at Mr. Earnest’s driver side window requested his license and registration, which he provided. No officer mentioned anything to Mr. Earnest about a turn signal. 

“Mr. Earnest’s mother-, father-, and sister-in-law, who are Caucasian, immediately exited the home and witnessed the entire encounter. The officers would not allow any family members to speak to Mr. Earnest. 

“According to the Call Service Report provided in response to a discovery request, the initial stop on Mabel Street occurred at 4:35 pm. Four minutes later, after the stop had already occurred, and Mr. Earnest’s family had already exited the home and made their presence known to the police, the officers requested a patrol vehicle bring them a citation booklet. Approximately 2-3 minutes later, a second patrol vehicle driven by Ofc. Brian Kishiyama (# 57) arrived. In all, the encounter lasted approximately 17 minutes. During that time, the two officers positioned on either side of the vehicle remained positioned surrounding Mr. Earnest’s vehicle, and would not allow Mr. Earnest to exit the vehicle or speak with his family. Finally, Ofc. Collier provided Mr. Earnest with a citation for allegedly violating Vehicle Code section 22108 (failing to use his turn signal) when he turned left on the green arrow from San Pablo Avenue onto Dwight Avenue. This was the first instance in which his use of a turn signal was mentioned. At the same time, the officer told him that he was lucky the officer was not issuing a ticket for Mr. Earnest not being on the car registration. (Not only is Mr. Earnest’s name on the registration of the vehicle, which he co-owns with his wife, but even if it were not, it is entirely lawful to drive a vehicle registered to another person.) 

“Mr. Earnest asserts he used his turn signal and fully complied with the law at all times, and that from their position, in front and to the side of Mr. Earnest’s vehicle, the officers were not physically able to observe whether he had activated his turn signal at the relevant times. Furthermore, Mr. Earnest asserts that the stop was illegal and was motivated solely by the subjective racially-motivated suspicions of the officers, and that any alleged objective basis for the stop was fabricated subsequent to the traffic stop to justify the illegal stop and detention… 

"The lack of objective basis for the stop is corroborated by the fact that the officers lacked the ability to write a citation, and were forced to call in another patrol vehicle to obtain a citation booklet, as well as the prolonged detention. In fact, there was a delay of several minutes between the stop of Mr. Earnest and the time the officers requested a citation booklet. Moreover, the request for the booklet was only commenced after several witnesses made their presence known to the police.” 

This is part of an even lengthier “Statement of Facts” his lawyer made when she went to court to fight the traffic ticket he received. She cited case law showing that using the turn signal in this specific situation isn’t legally required. Finally, she offered a lot of evidence to support the claim that “ this unlawful and discriminatory conduct seems to be consistent with the Drug Task Force’s typical behavior.” She referenced a July 2012 Town Hall meeting where the Berkeley chapter of the NAACP, the ACLU, the African American / Black Professionals and Community Network, Coalition for a Safe Berkeley, SEIU 1021 Berkeley Maintenance Chapter, and the City of Berkeley Peace and Justice Commission reported many similar incidents. 

This kind of thing, unfortunately, happens all too often in Berkeley. The ordinary victims of this kind of official bullying usually ends up just paying the fine, if they don’t suffer even worse indignities in the course of their arrest. 

This time, however, the Berkeley Drug Task Force made one big mistake. The object of their harassment had free access to the services of a fine young lawyer, unlike most people who are illegally detained—she just happens to be his wife. Her name is Kate Hallinan and she’s a third generation member of a big and distinguished family of excellent attorneys, and she’s now working in a famous San Francisco law office. So she and LaMonte were able to take the case to court.  

The traffic ticket case against LaMonte Earnest was automatically dismissed on the date of trial because—are you surprised?—the complaining witnesses from the Berkeley Police Department didn’t even bother to show up. They’d already gotten what they wanted by harassing him on the street, so they didn’t need to support their bogus charges. 

But the traffic court trial judge took it a step further. He dismissed the case again a day later, this time granting the defense motion on LaMonte’s behalf for “an order dismissing the charges against him on the grounds that the prosecution is discriminatory and has denied him equal protection of the law, and additionally, due to the shocking and outrageous misconduct of the Berkeley Police Department, and specifically the Berkeley Police Department Special Enforcement Units Drug Task Force.” 

If all the dark-skinned people unjustly stopped by police had the services of a good lawyer to fight their tickets, this kind of outrageous misconduct would be a lot less frequent in Berkeley and elsewhere, but they don’t, and so it happens all the time. 

One fact alleged in the defense argument was that the Berkeley Police Department has lagged in implementing a policy which was supposed to correct the numerous problems documented at a series of civic meetings. 

The Fair and Impartial Policing Policy (FIP) is a national movement to provide for data collection on all traffic and pedestrian stops, including the race and demographics of all persons stopped by police. The Berkeley Police Department began training on FIP in 2010. On June 17, 2014, the Berkeley City Council ordered the implementation of the FIP (General Order B-4) by October 2014. Although 81% of sworn employees had completed training as of August 1, 2014, as of the January 23, 2015 date of LaMonte Earnest’s detention by the Drug Task Force it had not yet been implemented. 

J. George Lippman, a member of Berkeley’s Peace and Justice Commission, told me that data-gathering under the FIP policy finally commenced in January, probably just after DeMonte Earnest was detained, but six months later no report on its findings has been issued. He said that he questioned Berkeley Police Chief about this at Wednesday’s Berkeley Police Review Commission meeting and was assured that something might emerge soon. We’ll see. 

An African-American friend in her early thirties who grew up in Berkeley confirms that the Task Force is still a fact of life in South and West Berkeley. She tells me they can be spotted in their unmarked black car wearing their characteristic black outfits on Tuesdays and Thursdays, and that any Black person, on foot or in a vehicle, risks being stopped by them for trivial reasons—she’s been stopped and questioned herself when, she says, she was “doing nothing”.  

She says that just last week she observed three or four young African-American men in a car being questioned by what looked like the Drug Task Force with no apparent motivation. Mansour Id-Deen, active in the Berkeley NAACP, told me he’d seen what was probably the same incident, and he stopped to observe as he usually does. No charges were filed, as far as I can determine.  

Harassing law-abiding citizens like this undermines respect for legitimate police authority. It puts dark-skinned people at risk of lethal “mistakes” made by people with guns, like those which took place last week in Texas and in Cincinnati. These are being reported with increasing frequency, but you can be sure they’re happening just as often as they ever did, but the majority of victims aren't backed up by videos, witnesses or lawyers. 

In the words of LaMonte Earnest’s defense statement, his case was “not an isolated incident, but … part of an ongoing pattern of discriminatory conduct by a small group of rogue officers. Critically, it is not only the criminal and traffic sanctions that arise from these racially-based traffic stops that qualify as shocking to the conscience; far worse is the environment of fear and harassment that it creates in the community.” 

It’s way past time for Berkeley and everywhere else to put a stop to such practices.