San Francisco's Tenderloin is a heavily populated, racially mixed neighborhood in the heart of one of America's iconic progressive cities. Yet when the San Francisco Police Department and the DEA targeted the neighborhood to crack down on drug dealing between 2013 and 2015 as part of "Operation Safe Schools," the only people they managed to roll up were black.

When 37 black defendants -- and no defendants of any other race -- got hauled away, nobody noticed. That is until the defendants started showing up looking for federal public defenders. The federal public defenders noticed, and they began making noise about racial disparities and selective enforcement of the drug laws.

Their charges only grew louder with the posting in 2015 of undercover police surveillance video to YouTube revealing a police officer muttering "fucking BMs," police code for black males, as he monitored a group of young men on the street. The video also apparently showed an undercover informant turning down drugs being offered by an Asian woman to instead buy drugs from a black woman.

In January 2017, 12 of those charged in the operation won a discovery motion from a judge who found there was "substantial evidence suggestive of racially selective enforcement" in their arrests. Instead of allowing the proceedings to continue so a full accounting of police conduct could occur, prosecutors instead dropped the charges.

At the time, the presiding judge, US District Court Judge Edward Chen, made clear that while he was granting the dismissals because they were in the best interest of the defendants, he was concerned that doing so would prevent the allegations of police bias from being aired.

"These are serious issues, serious allegations regarding claims of discriminatory enforcement patterns," Chen said. "I think the defendants in this case have raised a very substantial prima facie case that, at the very least, raises some serious questions that would warrant a response and a full airing of the issues."

Now, a year and a half later, the ACLU of Northern California on Thursday filed a federal civil lawsuit on behalf of six of those rolled up in the busts. The lawsuit alleges the plaintiffs were targeted because of their race and cites a survey of Tenderloin drug users to bolster its case. That survey found racial diversity among Tenderloin drug sellers. About half were black, but 20 percent were Latino and 17 percent were white.

The lawsuit is "an opportunity to hold the actors in the San Francisco Police Department and the city itself accountable for the police department's longstanding practices of engaging in racially discriminatory law enforcement," said ACLU attorney Novella Coleman, who is representing the plaintiffs.

It's also about financial relief for the plaintiffs, Coleman allowed. "The court will determine how to monetize that," she said.

Not an Anomaly

Racially biased policing is nothing new in San Francisco. In fact, as Ezekiel Edwards, director of the national ACLU's Criminal Law Reform Project, pointed out in a post announcing the lawsuit, the city has the dubious honor of setting precedent for the idea that law enforcement targeting people based on their race is unconstitutional. In an 1886 case, Yick Wo v. Hopkins, the city attempted to deny laundry permits to Chinese people while granting them to non-Chinese. Such an action could only be explained by the city's "hostility to the race and nationality" of the applicants, a violation of the 14th Amendment's guarantee of equal protection under the law.

Fast forward to the 21st century, and the evidence that the city's penchant for targeting non-whites for harsher treatment remains intact just keeps piling up. Numerous studies in the past few years have documented racially biased policing practices, including a 2002 ACLU report on SFPD racial profiling and a city-commissioned study by a national expert on biased policing.

Those studies uncovered a range of bias-related problems and made concrete recommendations for reform. Those were ignored. As the rotten policing practices festered, more reports detailing racial and ethnic disparities across the criminal justice system came out in 2013 and 2015.

Then, in 2015, as "Operation Safe Schools" was winding down, SFPD was hit by a new scandal when officers were caught exchanging racist text messages. Some used the N-word, others referenced cross burnings. Officers were caught calling black residents "savages," "wild animals," and "barbarians," and one officer told his sergeant "All n[ -- ] must fucking hang." Another officer sent a text with an image of a white man spraying a black child with a hose above the caption "Go be a n -- somewhere else."

That finally got the attention of city fathers -- as well as the Obama-era Justice Department. The city district attorney convened a Blue Ribbon Panel on Transparency, Accountability, and Fairness in Law Enforcement that documented SFPD's history of racially disparate enforcement and concluded that it was "in urgent need of important reforms." In 2016, the Justice Department weighed in with its own report finding that the department still engaged in racially biased policing, especially around traffic stops and police use of deadly force.

It's Not Just San Francisco

The ACLU's Edwards concisely makes the case that San Francisco is no exception when it comes to racially biased policing:

"Unequal treatment by race is commonplace among police departments large and small in cities across a range of ideological leanings. This is the reason for the racial profiling lawsuits filed in New York City, Chicago, Philadelphia, and Maricopa County, Arizona. This is the motivation, prior to Attorney General Jeff Sessions, for Justice Department consent decrees seeking to end racially discriminatory police practices in Seattle, Los Angeles County, New Orleans, Baltimore, Newark, East Haven CT and Ferguson MO. This is why the ACLU has found racial disparities in marijuana possession arrests across the country, in drug possession arrests more broadly, in stops and frisks in Boston, in seatbelt enforcement in Florida, and in arrests for low-level offenses in Minneapolis."

When will things ever change?

This article was produced by Drug Reporter, a project of the Independent Media Institute.

It's just about all medical marijuana news today, except for a Mississippi appeals court throwing out a drug-induced homicide-style conviction.

Medical Marijuana

Marijuana Research Applications Go Nowhere at Justice Department. The DEA began accepting applications from researchers seeking to grow marijuana two years ago, but as of this week, none of the applications have been responded to. Some two dozen applications have been left in limbo by the Justice Department, the DEA's parent agency, during the tenure of anti-marijuana Attorney General Jeff Sessions.

Marijuana Research Bill Scheduled For Congressional Vote This Week. The House Judiciary Committee will vote Thursday on HR 5634, Rep. Matt Gaetz's Medical Cannabis Research Act. Gaetz says the bill will expand the amount of research-grade marijuana available to researchers, but drug reformers are calling foul over some provisions, including one that bars people with a felony or drug-related misdemeanor conviction from any affiliation with research cultivation operations and another that requires cultivators to get a letter of good standing from a local law enforcement agency. They argued that those provisions should be removed, but Gaetz doesn't look likely to do that.

Connecticut Federal Court Holds That Refusing To Hire Medical Marijuana User Constitutes Employment Discrimination. A federal court in Hartford held last Wednesday that refusing to hire a medical marijuana user who tested positive on a pre-employment drug test violates the state's medical marijuana law. Under the state's law, "[n]o employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person's or employee's status as a qualifying patient."

New Mexico Health Secretary Rejects Medical Marijuana for Opioid Addiction. Department of Public Health Secretary Lynn Gallagher has rejected the idea of treating opioid addiction with medical marijuana, saying there isn't enough research to justify using it for addiction treatment. Her decision overrides the state's Cannabis Advisory Board, which recommended 5-1 that it be approved.

Sentencing Policy

Mississippi Appeals Court Throws Out Dealer's Murder Conviction in Overdose Death. The state Court of Appeals has overturned the murder conviction of a man who had been convicted of the crime after a friend died from taking a new psychoactive substance provided by the man. "The evidence introduced at trial was insufficient to support a conviction for either depraved-heart murder or the lesser-included offense of culpable negligence manslaughter," Judge Jack Wilson wrote for an 8-2 majority of the court. The court found that even though the man had provided two doses of the drug to his friend, that wasn't enough to support the murder charges because there was no evidence the man believed the drug would put his friend at risk. The case could spark efforts in the legislature to pass a drug-induced homicide law.

A Pennsylvania lawmaker will file a marijuana legalization bill, Canada moves toward roadside saliva drug testing, the Philippines police vow more drug war, and more.

Marijuana Policy

Pennsylvania Lawmaker to File Legalization Bill. Citing a recent report from state Auditor General Eugene DePasquale that legalizing marijuana could create more than half a billion annually in tax revenues for the state, Rep. Jake Wheatley (D-Allegheny) says he will introduce a bill to legalize marijuana. "States from coast to coast have embraced legalization and those states are reaping the economic and criminal justice benefits," Wheatley said in a statement. "It is time Pennsylvania joins with those states in leaving behind the ugly stigma of marijuana."

Dark Web

Imprisoned Silk Road Founder Sees Some Charges Dismissed. Federal prosecutors in Maryland have dismissed an indictment against imprisoned Silk Road founder Ross Ulbricht. The indictment contained the only charge that Ulbricht ever engaged in a murder-for-hire scheme. Despite the fact that those charges were never proven, or even tried, they were cited by his sentencing judge in handing down a draconian double life without parole sentence for online drug dealing. Ulbricht is currently appealing his sentence to the US Supreme Court.

International

Canada Set to Approve First Device for Testing Drivers' Saliva for Weed. The federal Justice Department has approved the first device designed to drug test drivers' saliva for the presence of marijuana. Attorney General Jody Wilson-Raybould has now given a 30-day notice of a ministerial order to approve the Draeger DrugTest 5000, produced by a company based in Germany. The device is already approved in other countries, including the United Kingdom and Germany.

Philippines Police Vow "Surgical and Chilling" Drug War. Philippine police vowed Monday to revamp and ratchet up their fight against crime and drugs just a week after President Rodrigo Duterte promised to keep the bloody campaign going. "Surgical and chilling will be the trademark of the reinvigorated anti-illegal drugs and anti-criminality campaign," police chief Oscar Albayalde told a news conference. Tends of thousands of purported drug dealers and users have been killed in Duterte's crusade, which is now under preliminary investigation by the International Criminal Court.

Criminal Court & Legal Affair Investigative Journalist Clarence Walker can be reached at [email protected].

The US Supreme Court recently annulled a major search and seizure case around a rental car filled with heroin with a ruling that could impact the legal rights of Americans who may get stopped by police while driving a vehicle rented by another person. That case is U.S. v. Terence Byrd (#16-1371).

On May 14, Supreme Court Justices released their decision in Byrd's case, announcing when the Fourth Amendment was applied to the evidence in the case that Terence Byrd had "reasonable expectation of privacy while driving a car rented by another party."

Pennsylvania state troopers had arrested Byrd with a large cache of heroin in a car rented by his girlfriend. Police told Byrd he had no right to refuse to consent to a search because Byrd's name was not on the rental agreement. Byrd copped to ten years in federal prison when a district court ruled earlier that Byrd had no expectations of privacy while driving an unauthorized rental car.

The thorny issues the justices had to untangle was whether a second party driver of a rental car like Byrd could legally refuse a police request to search the rental vehicle unless police had a warrant or probable cause, and further whether Byrd was still entitled to protection the under Fourth Amendment. In a unanimous decision, the justices rejected the government's argument that Byrd had no expectation of privacy because he wasn't listed as a second party driver.

"People who borrow rental cars from friends or family are legally entitled to the same protection against police searches as the authorized driver," wrote Justice Anthony Kennedy in the majority opinion. "There may be countless innocuous reasons why an authorized driver might get behind the wheel of a rental car and drive it."

White House Solicitor General Noel J. Francisco had urged the justices to hold Mr. Byrd to the terms of the rental agreement. "It is common knowledge that car rentals are a personal transaction that does not make the car available for general enjoyment and that the straw man car rentals disserve society by frustrating law enforcement efforts to prevent smuggling and other crimes," he argued.

What is unusual about the Supreme Court ruling in this case is the fact the high court affirmed the defendant's conviction but the justices sent back to the lower appellate court to address important issues as it relates to whether the defendant was entitled to expectation of privacy and not be subjected to "unreasonable search and seizures."

Here are the remanded issues the appeals court, the 3rd Circuit Court of Appeals in Philadelphia, must now consider

(1) Whether an individual "who intentionally uses a third party to obtain a rental car by a fraudulent scheme for the purpose of committing a crime lacks a reasonable expectation of privacy in the rental car driven by the defendant."

(2) Whether the officers had probable cause to search the rental car, and whether these or other issues warrant further remand to the District Court or such issues should be addressed by the court in the first instance.

(3) And if police had any other probable cause to stop Byrd other than the original traffic stop.

New York criminal defense attorney Robert M. Loeb, who argued Byrd's case before the high court, told Drug War Chronicle, "Now we must revisit the same issues that the District Court and the Third Circuit have already decided in favor of the government," he explained. "If the lower court reiterates that officers had probable cause to stop and search the car and seize the drugs under their probable cause theory," Byrd stays in prison," because then the Fourth Amendment doesn't protect him," Loeb explained.

David Rudovsky, a Penn State Professor and search and seizure expert, told the Chronicle, "As the court stated, there is no bright-line rule for second drivers; my view is that long as the driver is not a thief or carjacker, there is a good claim to an expectation of privacy."

The ACLU and the National Criminal Defense Lawyer Association filed a friend brief in Byrd's case, claiming the Supreme court's ruling would likely have an outsized effect on black and Hispanic drivers. "There is a commonly held misconception that car rental is a luxury reserved for the wealthiest individuals," the ACLU filing said. To prove their facts, the ACLU noted that a 2010 tax study found "that more car rentals occur at neighborhood locations than at airport locations."

Studies have shown that black drivers are more likely than white ones to be pulled over by the police and more likely to be searched during the stop.

On appeal to the Supreme Court, Byrd's attorneys had argued: "Whether he was on the car rental agreement was actually irrelevant to whether he had a reasonable expectation of privacy under the Fourth Amendment."

Byrd's attorney had also previously argued before the Third Circuit and the Supreme Court that "millions of car rentals take place annually in the United States." They insisted that if the government won, "Police would have an incentive to pull over a rental car driver who commits a traffic violation because police would know they could search the car if the driver wasn't listed on the rental agreement."

Suspicious Traffic Stop

Terence Byrd's journey to the nation's Supreme Court began on September 17, 2014, at a Budget car rental in Wayne, New Jersey. While Byrd waited outside, Latasha Reed, his girlfriend with whom he sired five children, went into Budget and signed an agreement to rent a new Ford Fusion. Reed's car rental agreement explicitly stated that additional drivers would only be allowed with "prior written consent." Reed did not add Byrd or any other drivers onto the rental agreement.

Once a Budget employee finalized the paperwork, Reed gave the keys to Byrd, who began his trek toward Pittsburg, Pennsylvania. While driving near Harrisburg, Pennsylvania, Byrd came upon State Trooper David Long who later claimed he stopped Byrd for either driving too long in an illegal left lane or while Byrd gripped the steering wheel at the "10 and 2" position, which is known as a "hand play" that many drivers use while holding a vehicle's steering wheel in an unsafe manner, notwithstanding an additional fact that Byrd's driver's seat was too far back reclined!

After running Byrd's driver's license the trooper discovered Byrd had given an alias name of James Carter, and also under Byrd's real name, he had a New Jersey arrest warrant. Ignoring Byrd's right to refuse to consent to a search--officers later claimed Byrd consented to the search--the officers searched the vehicle's trunk and hit the jackpot: 49 bricks of heroin and a police vest. Officers arrested Byrd and subsequently charged him with possession/intent to sell heroin and possession of body armor by a felon.

At a suppression hearing on June 16, 2015, held before Judge Caldwell, State Trooper David Long reiterated the suspicious events that led him to pull Byrd over, which included the officer saying he was unable to see Byrd due to the reclined seat, the "10 and 2" driving position, and the traffic violation.

Byrd's attorney was incredulous: "So the only reason you pulled out to stop my client was the fact he was at "10 and 2" -- and you couldn't see him in the car because his driver's seat reclined too far back?" the lawyer asked. Trooper Long nodded affirmatively.

Byrd's lawyer also drilled the officer about the notion that Byrd's race may have played a role for the officer to stop him. Then, surprisingly, Trooper Long mentioned a third factor that triggered the stop. "In a rental vehicle, he said. "That's what drew my attention to it, yes."

This is when the vehicle rental contract collided with the Fourth Amendment, which forbids unreasonable search and seizure. Trooper Long said he explained to Byrd that he was free to search the car without Byrd's consent because Byrd's name wasn't on the car rental agreement.

After a federal judge refused to throw out the evidence, Byrd accepted a plea bargain for a 10-year prison sentence in exchange for the right to appeal the conviction based on the argument the search violated Fourth Amendment protections against unreasonable search and seizure.

Whether Byrd prevails at the lower court during a hearing scheduled either later in June or July remains to be seen. Meanwhile, Byrd and his attorneys await the outcome with bated breath. Hopefully, the Fourth Amendment wins again. Stay tuned -- we will keep you informed of the outcome.