The stage is set in Santa Clara Superior Court. Deputy Public Defender Karina Alvarez rises in front of the judge for the first hearing on this case; however, it is just one of the many motions that Alvarez has filed in the last two years since the implementation of the Racial Justice Act, challenging local law enforcement’s community-known and statistically proven practice of racially targeted, pretextual stops.
In this case, police conducted a pretextual stop of a Mexican man of indigenous descent who was illegally searched purportedly for a red bandana, his haircut, his nervousness with the illegal stop, and Aztec tattoos on his arm. A pretextual stop is commonly understood as a traffic stop initiated by police for an alleged minor traffic violation, while the actual purpose is to investigate an unrelated crime with no evidence or cause. Pretextual stops are known to occur based on race, class, and to out-of-towners. On May 15th, T had a Racial Justice Act prima facie hearing to challenge the racist stop and arrest.
Prima facie hearings like these are just the first obstacle that public defenders in all counties in California have faced, have been nearly impossible to surmount, despite the incredibly low standard of “more than a mere possibility” of a violation of the Racial Justice Act. In fact, it was only two months ago when Judge Williams finally granted the first evidentiary hearing in Santa Clara County, which is the next phase if a person wins at the prima facie stage. But only weeks ago, Judge Williams refused to find a violation of the RJA in that same case, despite police ignoring the medical concerns of a black elder and calling her “lazy” for her shortness of breath. All Santa Clara County DA Rosen and his office achieve in being a stumbling block to racial justice is preventing the “unearthing of community members’ plight” in the courts, which will expose decades of racist police policy and the DA’s acceptance and protection of these practices.
Defender Alvarez and the team at the Santa Clara Public Defender’s Office have been hard at work, attempting to challenge the policy of profiling Black and Brown men for pretextual stops and standing up to District Attorney Rosen who has made it a priority to defend, rationalize, and conceal these racist practices.
After recounting the story of the illegal stop, Alvarez continues the Racial Justice Act argument, stating that the “color red is a color.” While one would imagine that the hearings on racial justice would include arguments about bias related to skin color, in Santa Clara County, police have devised pretexts, like a red bandana, as “race-neutral” stand-ins for the true purpose of the stop: conducting an unwarranted, unjustified search of a Latino man.
However, for the DA’s office, red (or blue if T made a different fashion choice that morning) is so much more. It represents opportunity. It represents a helpful shortcut to convictions by activating explicit and racial biases in judges and juries that conflate the wardrobe of young Black and Brown men as indicative of some primal violence latent within us. It represents one of the many pretexts that police use to infringe on the rights, claiming a wide mandate of “gang suppression” but understood on the streets as suppression of the East Side, suppression of parts of the Westside, and suppression of any Black and Brown men who may have family, community, or other associational ties with each other.
Mock Public Service Announcement based on the Santa Clara DA Office's practice of targeting and prosecuting men of color based on cultural and fashion expressions such as hairstyles. (Design by Adrian Avila).
In response to a RJA motion by Deputy Public Defender Karina Alvarez calling out these racist stops which are all too common, District Attorney Jeff Rosen argued that officers were completely devoid of racial bias when they stopped “T” (name changed to protect anonymity) and searched his car for wearing the color red, having a red bandana tied to the steering wheel, getting a haircut recently, having Aztec tattoos, and being nervous of police contact. The body camera of T’s arrest illustrated what families coming through De-Bug’s doors have said for decades; the police treat ethnic and cultural differences with suspicion, disrespect, and as evidence of guilt, while DA Rosen’s office is happy to cover their tracks in court.
Where we see community members driving home after a long day wearing their favorite color; local law enforcement sees a criminal, contorted by their own racial bias and justified by ‘gang training’ that conflates common aspects of Black and Brown people with criminality. Where we see a community member in mourning cutting his hair in cultural practice; the police see a specialized assassin simply from the cut of his hair. Where we see a community member terrified by past police beatings; the police see a man shaking with guilt. Yet, change the race and every attribute will be written off as innocuous and not worthy of a stop, let alone a second glance.
And while community members have always been completely unprotected from the whims and racism of whatever officer they are unlucky enough come into contact with at the moment of the stop, DA Rosen’s decision to justify and devise non-racist explanations for racist policing is an intentional choice to hide the racism of law enforcement all so that he can “win” more cases in court. This predictable defense of overtly racist policing and denial of systemic racism sends a message to law enforcement that racist policing is permitted and supported by the DA’s office. This mirrors the dynamic of DA-Police relationships where DA’s cover up and justify police killings. Albeit, in such a lazy way, that their defense of these killer police officers have literally been a copy-paste job. From a law and order perspective, which the Santa Clara County DA’s Office has always followed, each officer that is found to be racially biased in the court is one less credible officer that a DA can use to incarcerate members of the community. From the community perspective, it is our absolute right to be aware of the racial biases of officers and for cases to be dismissed under the RJA. And DA Rosen’s defense and endorsement of these practices, to us, forces the chilling question about the extent to which racial bias controls each individual DA charging decision.
In the hearing, Defender Alvarez cut to the core of the issue, noting that “these associations harm communities everyday, especially on Cinco De Mayo.” Cinco De Mayo is known for annual crackdowns on celebrations creating selective DUI checkpoints, shutting down whole freeway exits, targeting arrests downtown, and many more tactics that we are likely yet to see with DA Rosen’s endorsement of this racist style of policing. SJPD’s policy of cracking down on celebrators of Cinco De Mayo is as predictable as May 5 occurring itself, while one cannot even recall a time that rowdy Sharks fans or St. Patrick’s Day celebrations were met with militarized police preparation and response. Because, why should police crack down on community celebrations?
Red: A Crime or a Color?
In the hearing, the defense expert noted that the officer who conducted the arrest, Officer Rollins, only interpreted the bandana as “gang-related” because T is a “Latinx individual.” Of course, District Attorney Rosen could walk around in any color he chooses (this is the nature of privilege), even a red bandana, which because of racial feelings, would be rationalized away as a “fashion statement.”
After cruising was legalized, DA Jeff Rosen and former Chief of Police Mata were photographed next to a classic red car with a rosary hanging on the rearview mirror during Cinco De Mayo festivities. Ironically, Former Chief of Police Mata’s predecessor, Eddie Garcia, famously flaunted a rosary and Huelga bird mask as evidence of criminal associations on social media in 2020, prompting widespread backlash. But also prompting the question, wouldn’t official SJPD training and policy justify stopping and prosecuting former Chief Mata and DA Rosen for the rosary beads hanging from the front mirror, as regularly occurs to Latino community members?
Deputy Defender Karina Alvarez focused on this contradiction; to interpret the red bandana tied to the steering wheel as anything more than a fashion statement was a choice, informed by racial bias and the ‘gang’ trainings that conflate the symbols and culture of non-white, immigrant communities and activating implicit and explicit biases in predominantly white juries who know no better. Similarly, the officer pointed out T’s “tattoo of Aztec symbol on his right arm.” Gang experts cynically claim indigenous tattooing as gang evidence, ignoring that many of us who get tribal tattoos, including myself, research the symbols and confer with elders for the design. The portrayal of ancient tattoo designs as allegiance to a modern organization instead of honoring indigenous ancestors illustrates that gang training presumes criminality from their ignorance with the ancient art. Much of modern American Traditional tattooing, prominent in all walks of American life, features hearts with daggers through them, blood, and skulls. It would be a dishonest choice to bring the style of American Traditional Tattooing and cite it as evidence of criminal purpose; similarly, to take an ancient form of indigenous art and cite it as gang evidence is even more ridiculous, as there is complex symbology and spiritual meaning behind it.
Is an Indigenous Man in Mourning a Criminal Act?
On the body camera, the officer took special interest in T’s haircut, asking if he was a ‘torpedo’ or an assassin outright. As T explained, T is from an indigenous background in Mexico and his grandmother had passed away before the stop. Following the promise he made to his grandmother before she passed, T cut his hair ritually. Such practices, for those who care to learn about the many people and cultures that make up our community, are extremely common in indigenous cultures. In my Polynesian culture for example, mourning periods can last for over a year and include dressing in designated colors and a ritual haircutting ceremony conducted to show deep respect for family member who passed. Imagine trying to explain a very common indigenous mourning practice to a stubborn officer whose sole purpose is to stretch any cultural explanation into grounds for criminal suspicion. Unfortunately for T, he was not believed.
To the officer, T shaving his head near his temples was a haircut of a potential assassin. However, the irony is that T sported a mid-length haircut. Latino members of De-Bug have faced ‘gang’ profiling for both long braids AND shaved heads. T’s haircut, which was somewhere in the middle, illustrates that there is not a non-threatening haircut that Latino men can safely wear that will not invite police contact. To law enforcement, any form of the Latino male is threatening. These pretexts retroactively justify and conceal the racism that drove the stop initially. The Santa Clara County District Attorney’s Office is leaning on decades of racist feelings and police policy toward of Black and Brown communities to prop up his conviction rates and invisiblize the racism that these communities feel as a daily reality.
This daily reality is known throughout our communities, and especially to T who mentioned in court that he had been beaten by law enforcement in this County during a previous encounter with police. His palpable fear of being beaten was turned into a pretext for his incarceration.
Last month, however, T got the first modicum of justice when the court found that there was “more than a mere possibility” that the pretextual stop and search violated the Racial Justice Act, representing one of few evidentiary hearings granted in this County. This is despite years of RJA motions in a County we know to be overflowing with inequality and racism.
Each Racial Justice Act motion that the Santa Clara County District Attorney’s Office opposes send a message to law enforcement: “police how you want, we have your back.” However, DA Rosen sends an equally strong, chilling message to us, the community: that racism has a place in our County as a matter of DA policy. It will be on the community paired with a steadfastness of attorneys like Deputy Defender Alvarez, not the progenitors of racial bias and inequality, to call it out, root it out, and protect our communities.
