For Immediate Release
August 9, 2007
St. Paul, Minn -The American Civil Liberties Union of Minnesota announced today that a financial settlement has been reached in its long-running "flying while black" lawsuit against the federal Drug Enforcement Administration. Ms. Bonita Rhodes Berg, represented by the ACLU-MN, settled her claims for a cash payment of $20,000. The DEA agreed to the settlement after losing repeated motions to have the case dismissed and after the DEA was forced to turn over data that the DEA itself had collected regarding airport stops and searches by DEA Special Agent Tammy Key. This settlement is believed to be the first of its kind involving the DEA. Ms. Rhodes Berg was stopped by Agent Key after arriving at the Minneapolis-St.Paul International Airport on an early morning flight from Los Angeles in February 2001. The search of Ms. Berg's handbag revealed her Bible study materials, diet and cosmetics items. Here are Ms. Rhodes Berg's comments about her experience: "This has been a long and stressful process and I am glad the lawsuit is over. I thank God that I had my attorneys, the ACLU of Minnesota, the support of my two sons, granddaughter and members of my church, at St. Peter's AME, along with friends and former co-wokers at BNSF RR in St. Paul. The true test for me will be my return trip back to Minneapolis after flying to see my son in Los Angles. Because of what happened, it has been six years since my last visit. Being stopped by the DEA made me afraid to fly and I worried about being stopped again. But now, if this was to happen to me again, I know I have the right not to answer questions regarding a cold drug stop by the DEA. I can say "no" with confidence and just walk away." Minneapolis Attorney Tim Branson, who was part of the team of volunteer lawyers who represented Ms. Rhodes Berg, commented about the settlement: "the evidence - specifically the data that the DEA itself had collected in response to a Presidential directive by then President Clinton - proved that Ms. Berg's allegations of racial profiling were well-founded." As summarized by Federal District Court Judge Michael J. Davis in his February 2, 2007 Order denying the DEA's motion for summary judgment, the data the DEA had begun to collect in 2000 showed that 88% of the individuals "cold" stopped by Agent Key at the Minneapolis-St. Paul Airport during the first 12 months of data collection were minorities. A "cold" stop is where a member of the traveling public is stopped based solely on the DEA Agent's observation of the traveling person, which is in contrast to a "hot" stop where an individual is stopped based on a tip of other investigative information received before the stop. The data also showed that none of the individuals cold-stopped by Agent Key were white males, and that none of the overwhelmingly minority persons cold-stopped by Agent key was found to be carrying drugs or drug money. The written reasons Agent Key listed for her cold stops of Ms. Rhodes Berg and other African-American travelers were that they were traveling from drug "source" cities such as Los Angeles or Detroit, and carrying no bags, little baggage, or only a computer bag, a small carry-on bag, or a medium-sized heavy carry-on bag. The federal court found these innocuous reasons to be evidence of racial profiling. As Judge Davis ruled, "[c]ommon sense suggests that the ‘no bags,' ‘little bags,' ‘computer bags,' ‘heavy bags,' and other innocuous criteria upon which Key based her suspicions must apply equally to people of all races who deplane from source cities." The settlement is also significant because it highlights the failure of the DEA and the Justice Department to follow through and analyze the statistical evidence that the DEA itself had collected. The evidence uncovered in the litigation regarding Agent Key's cold stops presented a stark picture of racial profiling.
What about other DEA Agents? By Executive Memorandum dated June 9, 1999, President Clinton ordered that data be collected - and analyzed - regarding the race and ethnicity of individuals stopped by federal agencies such as the DEA. In response, on October 8, 1999, the Justice Department committed to collect such data about individuals being stopped by the DEA to help "determine whether race and ethnicity are used by DEA agents as criteria for initiating contact" with individuals. The DEA began to collect such data as part of Operation Jetway in 2000 and continued doing so until 2003. However, the Justice Department and the DEA never fulfilled their commitment to analyze the data against appropriate background statistics, as well as failed to fully assess whether DEA agents engaged in racial and ethnic profiling. In litigation testimony, the chief of the DEA's Statistical Services Section admitted that within the first four months of the Bush administration that the data-analysis project had died on the vine. As part of the settlement, Ms. Rhodes Berg and the ACLU-MN also secured the public release of certain data collected by the DEA, as well as information regarding the DEA's actions and inactions to remedy racial profiling. The release of this information could prove useful for others who might want to pursue the DEA for additional racial profiling data. The ACLU-MN intends to share this information with the Council on Crime and Justice and with others upon request. ACLU-MN Cooperating Attorneys in this matter are Timothy Branson, Dorsey & Whitney; and Albert Goins, Goins Law Offices. Documents for this case can be found on the Berg v DEA page.
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