Biking While Black

A CRIMINAL DEFENDER sees racism in an instance where an
officer believes he was doing his job. As the Portland Police Bureau’s
Hotspot Enforcement Action Team (HEAT) cracks down on gangs,
assumptions on both sides are playing into quickly made judgments.

Last Thursday, September 10, criminal defender Chris O’Connor asked
Multnomah County Circuit Court Judge Jerry Hodson to suppress evidence
on the basis that his client was stopped only for biking while
black.

Robert James, a 26-year-old African American, was stopped in June
for rolling through a stop sign on his bike. Arresting Officer Cody
Berne testified that he pulled James over and became suspicious because
as he approached James, the man appeared nervous and was breathing
heavily, despite traveling slowly on his bike.

James allowed Berne to do a safety search to check for weapons.
Berne said he felt a “bindle” of drugs in his pocket. Officer Berne
asked James for his ID and took it back to his patrol car to check if
James had an arrest record. He did, for armed robbery. Berne said he
then returned to James and asked him about the drugs in his pocket, at
which point James ran.

Officer Berne yelled at James to stop, then chased after him. When
Officer Berne finally caught up with James, the alleged drugs were
gone. James was arrested for escape and the original traffic
citation.

Did Officer Berne racially profile James? As he stated on the
witness stand, most of the gang members he deals with are, in fact,
black.

“I almost think it’d be easier if everyone I arrested was white
because then we couldn’t have these types of arguments,” Officer Berne
said on the stand on Thursday.

It’s probably reasonable that a black man pulled over while riding
his bike might be a little nervous—maybe breathing heavily, maybe
sizing up the situation—when a white police officer approaches
him. Indeed, James testified repeatedly that he felt he was being
“stereotyped.” James also said he consented to the search because he
felt he had no option.

“You can’t just tell an officer, ‘No, you can’t search me,'” he
said.

Still, Officer Berne said he found a “healthy criminal record” when
he ran James’ ID through his computer database. If Berne was right
about James being a less-than-model citizen before using the database,
did his flimsy suspicion justify a pat-down search for weapons? And
what if James had been a white man blowing through a stop sign on his
bike? Would he have acted nervous as the officer questioned him? Would
that throw up the same red flags?

O’Connor doesn’t see an individualized problem, but a citywide
misconception that a black man at the wrong place at the wrong time is
probably up to something.

“I think there’s this institutional position that the police take,”
O’Connor says. “They’re sweeping up the wrong people.”

The judge decided that Officer Berne did not have a “reasonable
suspicion” that James had a weapon, but nonetheless allowed the
evidence of James’ alleged escape to be admitted since James had agreed
to the pat-down search. On Monday, September 14, a jury acquitted James
of escape, but convicted him of interfering with an officer by refusing
to obey a lawful order when Officer Berne told him to stop running.
O’Connor said that verdict would be appealed.