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More Charges Linked to 'Racial Profiling' in San Jose

New America Media, News Report, Raj Jayadev Posted: Mar 05, 2009

Editors Note: The high arrest rate of Latinos in San Jose isnt limited to public intoxication charges. It turns out that the problem is more systemic. Data obtained from the Department of Justice shows that Latinos and blacks are also disproportionately charged with resisting arrest and other offenses in which police officers have greater discretion. Raj Jayadev is the director of Silicon Valley De-Bug and is a member of the new public intoxication task force in San Jose.

SAN JOSE, Calif. -- The night she was arrested, Maria Castillo fit the description. A petite, 49-year-old grandmother and home healthcare worker, Castillo is Latina in San Jose and that ethnicity, in that city, makes her the most likely person statistically to be charged with resisting arrest.
Maria CastilloMaria Castillo (right) with her daughter Diana
Photo by Charisse Domingo, Silicon Valley De-Bug

Latinos living in San Jose have a higher risk of being charged with resisting arrest than in any other California city, according to data recently obtained from the state Department of Justice. The data comes on the heals of a major public outcry and subsequent creation of a city-appointed task force over the suspiciously high and racially disproportionate arrest rate for another charge: public intoxication in San Jose.

I first met Castillo at a raucous San Jose City Council meeting focusing on the alarming rates of public intoxication arrests that were first reported in the San Jose Mercury News in October 2008. The numbers showed 4,661 arrests in San Jose in 2007 an arrest rate higher than any other city in California. When broken down demographically, Latinos and blacks were over-represented in San Jose arrests. In a city where Latinos account for roughly 30 percent of the population, they represented 57 percent of the public intoxication arrests in 2007.

Castillo spoke during the public comment section alongside her son and daughter. Although she wasnt arrested for public intoxication, her testimony of being roughed up and then charged with resisting arrest was a familiar story. It was also an indication that the disproportionate arrest rate of Latinos in San Jose was a broader problem.

In response to the overrepresentation of Latinos and blacks on drunk-in-public charges, a city-appointed task force was formed to look into how the charge was enforced.

But rather than tinkering with one specific charge, Castillos testimony exposed the bigger issue that San Jose has to deal withits police practices and the use of officer discretion at the time of arrest.

The California law enforcement data supports her contention.

In response to a public records request by my organization, Silicon Valley De-Bug, the state Department of Justice recently released data that showed that Castillos story of being charged for resisting arrest without probable cause is not unique. The data on San Joses charges for resisting arrest showed the same pattern as that of public intoxication higher arrests than cities with even larger populations, and an over-representation of Latinos and blacks.

The California Penal code 148(a) defines resisting arrest as willfully obstructing, interfering, delaying investigation of police. It is a misdemeanor offense. As in the drunk-in-public charge, the arresting officer uses his or her discretion to determine if someone is conducting the criminal act described in the penal code.

In 2007, San Jose (population 989,496) recorded 441 such arrests, in comparison to San Diego (population 1,336,865), which recorded 233, and San Francisco (population 824,525) where there were 185.

Of those charged with resisting arrest in San Jose, 54.2 percent were Latino. Blacks, who represent only 3.5 percent of the general population, accounted for 15.4 percent of these arrests.

Data for 2008 continued along this trend. From January to June 2008, there were 240 charges for resisting arrest in San Jose, with only 140 in San Diego, and 79 in San Francisco. Fifty-eight percent of those charged with resisting arrest in San Jose were Latinoeven higher than the percentage of Latinos arrested for public intoxication.

Anthony Boskovitch, a San Jose civil rights attorney, was not surprised by these numbers. He has filed more than 10 lawsuits on behalf of clients for unlawful arrests in San Jose since 1992, and in 2008 represented three Latinos in federal court who felt they were arrested for public intoxication because of their attitude. All three plaintiffs in the Cicala case contend that they were not drunk the night they were arrested, and Boskovitch is asking for an injunction against the San Jose Police Department that would require officers to arrest only if they can prove probably cause.

When asked why San Joses resisting arrest numbers are unusually high, he says, Because, while San Jose police may not get the reputation of being as brutal as other cities, they are completely out of control and have no real oversight. The culture of policing here is that if you fail the attitude test, they will arrest you, regardless of actual probable cause.

He calls resisting arrest, public intoxication, and disturbing the peace cover charges, meaning charges that officers use to justify invalid arrests. Whenever I see one of those penal codes on a police report, I look very carefully. It can often times mean the officer just wanted to give someone an attitude adjustment, says Boskovitch.

Of the three charges, he says, resisting arrest is the most reliant on police discretion. This means it is most often used to justify use of force by an officer. It also means it is extremely difficult to defend against in court, so suspects often plea to the charge.

But Boskovitch warns, You dont want a 148 (resisting arrest) on you record, because during the next police contact, they will treat you differently, and rightly so, even perhaps draw a weapon. They are seeing on your rap sheet that you gave some sort of problem to an officer that he or she should be aware of.

Boskovitch, who met Maria Castillo at the public intoxication meeting, is now looking into her case for a possible lawsuit against the city. In the meantime, Castillo has become a one-woman police watch, having approached every top brass officer in the police department, as well as city officials, about what happened to her. She shares her story about having been pulled over, dragged out of her car, and thrown to the ground -- a process that she says knocked out two of her front teeth. I cant smile at my granddaughter because of what happened, and I have to change the way I speak because of the hole in my mouth, she says in anger and pain.

Castillo sits attentively in the Public Intoxication Task Force meetings, and hopes that her presence there will push the task force to address the deeper issue of police practice. Otherwise, San Jose may need yet another task force for resisting arrest charges in a few months.

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