Bennington Police Chief Paul Doucette testifies in January at the Statehouse. Photo by Elizabeth Hewitt/VTDigger
The American Civil Liberties Union of Vermont is representing Shamel Alexander, of Brooklyn, in a suit in U.S. District Court, alleging in part that he was improperly targeted for an unwarranted and extended vehicle search in 2013 because of his race.
Named as defendants are a current Bennington Police officer, a former detective, the police chief, the police department and the town. The defendants have vigorously denied the allegations and have filed a motion seeking dismissal of the suit.
Alexander’s conviction in Superior Court and his 10-year prison sentence for heroin trafficking were overturned in February by the Vermont Supreme Court, when the court tossed out drug evidence found during a search of Alexander’s belongings.
“We would hope that this case serves as a reminder to all Vermont law enforcement agencies that they must take seriously their obligations under the Fair and Impartial Policing policy and that there must be true accountability for officers and departments that practice biased and unconstitutional policing,” said Lia Ernst, who with attorney David Williams is representing Alexander.
“We had heard this anecdotally, but now a raft of incidents” of racial profiling have come to light statewide, Ernst said. She said the ACLU wants to “make a statement that pulling over someone based on race is ineffective police work and it is unconstitutional.”
In any resolution of the suit, Ernst said the ACLU would press for “sweeping changes” in the handling of traffic stops involving minority drivers and changes in police training for handling stops.
However, Nancy Sheahan, of McNeil, Leddy & Sheahan, of Burlington, who is representing the defendants, said they continue to deny the allegations and are pressing a motion to dismiss the suit.
“Our position remains the same,” Sheahan said this week.
Named in the suit are BPD Cpl. Andrew Hunt, former BPD Det. Peter Urbanowicz, Police Chief Paul Doucette, the police department and the town of Bennington. The action was filed in federal court in Rutland in July.
In February, the Supreme Court vacated Alexander’s sentence and tossed out the search evidence. That included 401 bags of heroin weighing about 11 grams, which police said was found during the July 11, 2013, search of Alexander’s belongings.
The state subsequently dismissed the drug charges in Superior Court.
Alexander, 25 at the time of his arrest, was freed in March after being incarcerated while awaiting trial. He also served time after he was convicted and sentenced.
Urbanowicz, who has since left the BPD, and Hunt are named for their roles in the stop and search, and Doucette and the department are named for allegedly failing to train officers in proper search techniques.
Asked what the ACLU’s goals are in the suit concerning officer training, Ernst said, “As a start, we’d like to see the Bennington Police Department recognize that it has a problem with biased policing rather than continuing to insist that racial profiling doesn’t happen — it’s impossible to fix a problem that you won’t acknowledge you have. And then it must do the hard work that is required to address that problem. This work must start with the BPD’s recruiting and hiring decisions and must continue through its officers’ initial and ongoing training, supervision, and evaluation. Ultimately, the BPD must ensure that its officers are held accountable when they misuse their authority and violate people’s rights.”
The defendants have denied the allegations concerning both the stop and the training of officers. Asked this week whether town or police officials would comment further at this time, Bennington Town Manager Stuart Hurd said, “We would have no comment on the pending suit. That is standard for us.”
Alexander’s attorneys filed a brief on Nov. 14, arguing against the defendants’ September motion seeking dismissal of the suit. Ernst said the defendants now have until Dec. 16 to file a reply brief, after which U.S. District Court Judge Geoffrey Crawford could call for oral arguments or possibly rule on the motion.
Sheahan said she intends to reply by mid-December to the plaintiff’s brief to address any new arguments against a dismissal that might have been raised. She added that no ruling on her motion is likely until at least early 2017.
If suit is not dismissed, Ernst said it could move toward the discovery phase prior to a trial. During that phase, she said, there is a requirement that the two parties consider a mediation process.
Sheahan said mediation would involve the two parties first agreeing on a mediator, likely from among three names put forth by the court. If after mediation efforts there still is no resolution agreement, the suit could continue, possibly toward a trial, she said.
Concerning the arrest, on July 11, 2013, police have said they had prior knowledge of drug dealers from the Albany, N.Y., area who were coming to Bennington in taxi cabs to make deliveries in the vicinity of the Lucky Dragon Restaurant at the corner of Main and Pleasant streets. They said local police also were advised to look for a “heavy-set African American male,” nicknamed Sizzle.
Urbanowicz said in police affidavits he had left work and was in an unmarked car wearing street clothes and parked at a stop 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 address to be left at, just asking 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 401 bags of heroin were found, and Alexander was arrested.
The 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.
At the Superior Court trial, Judge Nancy Corsones had denied a motion by Alexander’s attorney to disallow the search evidence. That ruling and the conviction on heroin charges were appealed, and the Supreme Court vacated the conviction.
In the brief filed by Alexander’s attorneys against the dismissal motion, they contend the suit “seeks to vindicate [Alexander’s] rights to equal protection, against unreasonable search and seizure, and to freedom from race-based discrimination.”
The plaintiff’s attorneys add, “Although Urbanowicz and Hunt were aware of information developed from anonymous tips and confidential informants that an African-American male who went by the nickname ‘Sizzle’ brought controlled substances into Bennington from New York, neither officer believed — or had reason to believe — that Mr. Alexander was ‘Sizzle’ (and he is not ‘Sizzle’). Instead, they determined to treat him as a suspect because of his race.”
In her motion seeking dismissal of the suit, filed in September, Sheahan argued in part that allegations of violations of Alexander’s right to equal treatment under the 14th Amendment were “insufficient as a matter of law.”
She wrote in part: “Plaintiff has not identified any examples of unequal treatment of African American and white suspects by Corporal Hunt or even alleged that he was treated differently than other similarly situated persons.”
Sheahan also argued that “because the facts alleged demonstrate that Corporal Hunt had a reasonable, articulable suspicion to conduct the traffic stop,” the suit’s improper search and seizure allegations, based on the Fourth Amendment, should be dismissed.
Jim Therrien writes for the Bennington Banner and VTDigger.org. He can be reached at 802-447-7567, ext. 114, or @BB_therrien on Twitter.
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