Attorneys seek to amend suit versus police
Stems from 2013 arrest
BENNINGTON — Attorneys representing an African American man who filed a civil rights suit over a traffic stop and arrest in Bennington seek to reinstate aspects of the suit that were dismissed in May by a federal court judge.
Attorneys with the ACLU of Vermont seek to amend the complaint to again consider allegations against Police Chief Paul Doucette and the town police department that were dismissed, although other allegations in the suit were allowed to continue.
The motion to amend notes that the judge found the suit had insufficiently argued Shamel Alexander's claims that the town "maintained a policy, practice, and/or custom of unlawfully discriminating on the basis of race," and therefore dismissed his claim "insofar as it sought to impose municipal liability on the town and supervisory liability on defendant Doucette."
The motion should be allowed, the attorneys wrote, because "a new study was published documenting patterns of racial disparities in policing in many agencies across the state of Vermont, including the BPD."
Alexander filed suit in 2016 over his July 11, 2013, arrest on drug charges after a taxi in which he was riding was stopped in downtown Bennington.
He is represented by Lia Ernst and James Diaz of the ACLU Foundation of Vermont, and David Williams, of Jarvis, McArthur & Williams, of Burlington.
Ernst said in an email this week that the study referred to was "Driving While Black and Brown in Vermont," prepared by professors at the University of Vermont and Cornell University, which was released in January. The analysis of data from 29 police agencies found that African American or Hispanic drivers were more likely than white drivers to be stopped, searched and arrested.
Following his 2013 arrest, Alexander was convicted on heroin trafficking charges and sentenced to a 10-year prison term. But on appeal, the Vermont Supreme Court tossed out the results of a search of Alexander's possessions, during which police discovered 401 bags of heroin, and vacated his conviction in early 2016.
The suit in U.S. District Court in Rutland was originally filed against the town of Bennington, the police department, Doucette and two officers involved in the arrest, alleging discrimination on the basis of race and violation of Alexander's right to be free from unreasonable searches and seizures.
However, in May, Judge Geoffrey Crawford ruled on motions to dismiss from the defendants' attorneys. The judge dismissed improper search claims lodged against Doucette and the BPD, but said those could be continued against the town alone.
Also dismissed were allegations against the individual officers involving the legality of the search and seizure that led to Alexander's arrest. The town remains as a defendant concerning the search process but not concerning alleged discrimination against Alexander.
The judge allowed to proceed suit allegations that the officers discriminated against or profiled Alexander on the basis of race and that the town through its police department had a policy or custom of unconstitutionally prolonging traffic stops.
In the motion to amend the complaint, filed Sept. 1, Alexander's attorneys argue that the information in the traffic stop study "provides the factual matter held to be missing from the original complaint."
The attorneys contend that the amendments should be allowed because they "will not unduly prejudice the defendants and are not motivated by improper purpose, dilatory, or futile."
Alexander "does not seek to add new claims or defendants; the causes of action are the same in each complaint," the motion argues. "Instead, [Alexander] merely seeks to allege additional factual matter to support his previously pleaded claims."
Nancy Sheahan, of McNeil, Leddy & Sheahan, of Burlington, who is representing the defendants, declined to comment at this time, saying her response will be filed with the court.
Ernst commented, "What we've long known from anecdotal evidence is now backed by rigorous statistical analyses: Racial profiling and racial disparities are not the result of a "few bad apples," but rather are systemic, institutional problems that require systemic, institutional remedies. That's why it's so important that we get at department-wide customs and policies rather than focusing solely on individual officers."
Named in the suit were BPD Cpl. Andrew Hunt, who conducted the search, and former BPD Det. Peter Urbanowicz, who first noticed the taxi while he was off-duty and called Hunt to suggest he check the vehicle — coming from Albany, N.Y. — in connection with a police bulletin about drug sales in town that had followed a similar pattern.
Urbanowicz and Hunt are named for their roles in the stop and search, while Doucette and the department originally were named for allegedly failing to train officers in proper search techniques.
BPD TIPPED ABOUT DRUG SALES
Concerning the arrest, police said they had prior knowledge of drug dealers from the Albany area who were coming to Bennington in taxi cabs to make deliveries in the vicinity of a restaurant on Main Street. They said local police also were advised to look for a "heavyset African American male."
Urbanowicz said in police affidavits that he had left work and was driving an unmarked car and stopped at a traffic light when he was asked by a cab driver where a Chinese restaurant was located. The detective said he saw Alexander in the vehicle.
According to court papers, Urbanowicz subsequently told Hunt, who was on-duty, that it "would probably be a good traffic stop if you could find him doing something wrong." According to police affidavits and court papers, Hunt pulled over the cab based on a GPS unit being improperly located on the cab windshield.
At one point, Hunt asked the cab driver to step outside and said he learned from the driver that Alexander had come to Bennington in a cab several times before, and the driver thought it odd that Alexander had no destination address but asked to be brought to the restaurant. The driver gave Hunt permission to search the vehicle.
After Alexander initially denied access to search his belongings, Hunt stated that he called for a police drug dog to be brought to the scene, and soon after Alexander agreed to a further search. Police said marijuana and the bags of heroin were found, and Alexander was arrested.
The Vermont Supreme Court, in its ruling, stated that the search was improperly expanded beyond the scope of reasonable suspicion when Hunt asked the driver to exit the cab.
Alexander, 25 at the time of his arrest, was freed in March 2016 after being incarcerated while awaiting trial and then serving time. The state subsequently dismissed the drug charges in Superior Court.
More information about the traffic stop data analysis can be viewed at https://vtdigger.org/2017/01/09/study-blacks-hispanics-face-enforcement-traffic-stops/#.WbLCMdGQzyQ
Jim Therrien writes for New England Newspapers in Southern Vermont and VTDigger.org. @BB_therrien on Twitter.
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