Michigan Supreme Court hears argument in ACLU appeal challenging unconstitutional police fingerprinting on the street

Two cases being heard Tuesday, Nov. 9 by the Michigan Supreme Court deserve close attention because of the widespread impact their outcomes could have on policing, the right to privacy, and the ever-expanding technological capability of law enforcement to collect, store and use our personal data.

The cases also highlight an issue that has plagued America for as long as there’s been police: Black people being disproportionately stopped and searched by authorities with badges and guns, creating a climate of fear, instilling trauma, and poisoning relationships between law enforcement and the communities they are sworn to protect.

The discrimination is particularly disturbing when the targets are children, which is what Keyon Harrison and Denishio Johnson were when, in separate instances a decade ago, police in Grand Rapids, Michigan, violated their constitutional rights by photographing and fingerprinting them on the side of the road, even though they had done nothing wrong.

Keyon Harrison was 16 years old when stopped by police while walking home from school in 2012. Denishio Johnson was just 15 when police detained him at a bus stop in 2011. But they were far from being the only ones to have their rights violated.

For more than 30 years, police in this western Michigan city engaged in the egregious, unconstitutional practice of fingerprinting and photographing people they stopped for being “suspicious,” even when no crime occurred and no arrest was made. Even when people answered officers’ questions and identified themselves, police routinely fingerprinted them if they happened not to be  carrying an ID. As a result, biometric information wrongfully taken from potentially tens of thousands of people remains stored in a police database.

As argued in the lawsuits, this practice violates the United States Constitution’s Fourth Amendment protections against unreasonable searches and seizures. An opinion piece recently published in the Detroit News explained why what happened in Grand Rapids is so concerning:

“We should all be alarmed by the privacy implications of policies that allow the police, just by deeming someone suspicious, to deploy advanced technology that will collect and analyze highly sensitive biometric information and store it in a law enforcement database indefinitely.”

The two cases being heard by the Michigan Supreme Court – Harrison vs. VanderKooi and Johnson vs. VanderKooi – are about photographs and fingerprints, but soon we may be confronting iris scanners or even DNA harvesting.

The ACLU has been tracking the development of biometric identification technology – for fingerprints, DNA, retinas, voices, faces, and even gait, among others -- for many years, urging caution in its deployment and stringent safeguards in its use. 

We’ve said it before, but it’s worth reiterating: “These simple measurements add up to an extraordinary threat to privacy when they are collected, analyzed, and stored in readily searchable databases.”

What’s at stake is anonymity as we know it.

Clearly, anyone stopped by the police but innocent of any wrongdoing should never have their biometric information placed in such a database. Which is why one of the goals of the lawsuits in front of the Michigan Supreme Court is to force the destruction of such data wrongly collected by Grand Rapids police. The photographs and fingerprints of Mr. Harrison and Mr. Johnson, and everyone else who had their information similarly taken, should be purged from police records so that privacy can be restored, and justice served.

Unfortunately, this threat to privacy is not borne equally by all of us. What can’t be over-emphasized is the extent to which Black people and other people of color are disproportionately singled out for this sort of abuse.

A review of 439 stops under this policy from 2011 and 2012 found that 75 percent of the people stopped by police were Black, while just 15 percent were white. This is a huge disparity from the city’s overall racial makeup, which is 21 percent Black and 65 percent white.

The unconstitutional fingerprinting program widens the disparities even further for young people of color, who are less likely to be carrying an ID because they aren’t old enough to drive, can’t afford an ID, or rely on public transit and so have no need for one. Subjecting these young people to unconstitutional fingerprinting and storing their identifying data in a police database is stigmatizing, traumatizing, and increases the chances of police interactions in the future.

As we have seen repeatedly, a simple interaction with law enforcement on the street can turn deadly for Black and Brown people. We need to reduce interactions with law enforcement, not enable police to gather even more information about people during often harassing stops on the street.

As we have explained — supported by amicus briefs from diverse array of organizations, including the Cato Institute, the Washtenaw County Prosecutor, and the NAACP Legal Defense and Education Fund—the Michigan Supreme Court can put a stop to these unconstitutional practices once and for all. If police have probable cause for an arrest, they have long been able to capture fingerprints as part of the post-arrest booking process. But allowing police to compel a person to provide fingerprints while going about their business on the street puts people at the mercy of police whims whenever officers wish to gather this sort of sensitive biometric information, for practically any reason or, in some cases, seemingly no reason at all.

We all have the right to be free from the fear of that happening to any of us.

A Q&A with community leader Fay Givens 

In recognition of Native American Heritage Month, we talked with Fay Givens, former executive director of the nonprofit organization American Indian Services. She is also co-producer of a documentary about the boarding schools for Indigenous People that hundreds of thousands of Indigenous children were forced to attend between 1869 and the 1960s, tearing them from their homes and families in a brutal act of cultural genocide. Along with discussing that, Ms. Givens also talked about her family’s forced removal from their ancestral lands when she was a child, the untold contributions her people have made to the world, the problems that continue to plague them, and a reason to be hopeful. 

Q: What is your tribe? 

A: Mississippi Choctaw and Cherokee. 

Q: How did you end up in the Detroit area? 

A: In the 1950s and ‘60s, the American government, in an attempt to break up the reservation system, forced about half of the Indigenous population into cities. My family was relocated to Detroit. I was 7 years old. We were given a two-week housing voucher and basically told, “Good luck.”   

Q: Do you prefer Native American, Indigenous Person or American Indian? 

A: There are some 600 tribes in America, and the preference is to be identified by our tribal affiliations. American Indian is the legal definition, but, overall, the term Indigenous People best encompasses all of us.  

Q: Ten years ago, you and your twin sister, educator and author Dr. Kay McGowan, co-produced a documentary about these schools and the generation-spanning hardship and trauma they inflicted. What motivated you to do that? 

A: I had been executive director of the nonprofit organization American Indian Services for almost 20 years at that point. One of the things we offered was a place for the survivors of boarding schools, their children, even their grandchildren, to hold a weekly Talking Circle – what the mainstream would call a self-help group. They were all still trying to deal with the trauma these schools caused. Sitting in my office, I could hear their conversations, hear them laughing and crying, and decided we had to get it on film to get the message out about these schools and the horrors that they created. We wanted to tell a story that needed to be told, that these schools were created to carry out cultural genocide intended to eradicate our languages, religions and customs in an attempt to force us to assimilate.  

We never imagined the impact it would have. Our modest little film has been distributed to close to half a million different entities around the world.  

Q: You mentioned American Indian Services. Can you tell us about the organization? 

A: American Indian Services was in existence for 49 years. I was its head for 27 years. We were always underfunded. Then the COVID pandemic hit, and that was the final straw. We had to close, creating a tremendous hole in our community. Now, there is no place in this area providing services specifically designed for indigenous People. No mental health services provided by people with an understanding of the trauma caused by boarding schools, no youth programs where American Indian children from around Wayne County could come together to help keep their heritage alive. Nothing. We had a food program that helped feed 6,000 people a year. That’s gone. The saddest part of all, I think, is that our people now have no place to go to simply congregate with each other. It is very sad. 

Q: Given all the atrocities committed by the U.S. government against your people, how do you navigate living in America and being a citizen of this country? 

A: It is a struggle every day. We are legally part of 600 separate, sovereign nations that exist within the boundaries of the United States, and didn’t ask to be made citizens of America -- which didn’t happen until 1924. Even with that, some states prohibited us from voting until 1957.  The struggle is to keep our own cultures intact, and resist assimilation. We don’t value what the mainstream tells us we should value. We have our own value systems. We our own religions and our own cultures, which are unique, with deep, deep roots. We have been on this land for 23,000 years. So, I deal with it one day at a time, pushing back where I can. 

Q: What keeps you going? 

A: Anger. And love. I am driven by my fury at the injustice of what has been done to my people in the past, and the injustice that continues to exist. But I’m also driven by the love for my people, who deserve to be treated with dignity and respect. 

Q: Is there anything in particular you’d like non-Native people think about and do in terms of recognizing Native American Heritage Month? 

A: Yes, learn more about Indigenous People. Learn about the contributions we’ve made to the world. It was us who first cultivated tomatoes and potatoes and corn. We were the first to use the bark of willow trees as a pain reliever – which Bayer used to create aspirin. The first “sunglasses” date back to prehistoric Inuit people. Though we were called savages, significant parts of what white people refer to as the Iroquois Constitution were incorporated into the U.S. Constitution. That’s how sophisticated our civilization was before white people came to kill it, and us. 

But we also don’t want to be stuck in time, either – which happens because, in the eyes of the mainstream media, modern Native Americans do not exist. They try to make us invisible, so others do not know the incredible struggles that we continue to face: poverty, inadequate health care, substandard educations and racism.  

It is all very sad. 

But I’m happy to be able to have the opportunity to talk about all this. Hopefully, there will be some who hear what we have to say. 

Q: If you could recommend only one book for non-Indigenous People to read, what would it be? 

A: There’s two, both by the same author, Vine Deloria Jr., who was a member of the Standing Rock Sioux Tribe. He was really able to put his finger on the issues facing our people. In God is Red, he talks about the failure of Christianity, and describes the basic principles tying together Native religions. Custer Died for Your Sins: An Indian Manifesto is a brilliant collection of essays that documents how Indigenous People were treated by the U.S. government and other powerful institutions, their exploitation of our people, and the resistance we continue to pose. 

Q: Have you seen any positive developments? 

A: Yes, the appointment of Deb Haaland, a member of the Pueblo of Laguna tribe, as the U.S. Secretary of the Interior. It is the first time in this nation’s history an Indigenous person has held a Cabinet position. To have one of our people in charge of the agency that includes the Bureau of Indian Affairs is a milestone. It is definitely something that inspires some hope. It is a bright and shining star.