Police denials of racial bias beyond belief
On a summer’s day in 2021, while the world was still quivering in the aftermath of George Floyd’s murder at the hands of police a year prior, a Black student en route to the University of Toronto was stopped by police in North York, thrown to the ground, Tasered five times with an officer’s knee on his neck, no less, handcuffed and put into a police cruiser.
Two of the three police officers involved recently pleaded guilty at a Toronto police disciplinary tribunal — one to using unnecessary force and the other to making an unlawful arrest.
Police say their violent interaction with Hasani O’Gilvie, then 27, was a case of mistaken identity. His parents and lawyer called it a case of racial profiling.
A mistake or bias? One, even if hard to forgive, might be seen as an honest error. The other is pernicious, particularly in this city, and, importantly, illegal.
The Ontario Human Rights Commission defined racial profiling as actions undertaken for safety or security reasons or public protection that rely on stereotypes around race, religion, ethnicity or other identities, rather than reasonable suspicion, to single people out for greater scrutiny or differential treatment.
The human rights lawyer Nana Yanful sums it as “differential treatment, based on an identity feature.”
A typical example of anti-Black profiling would be police stopping a Black person in a neighbourhood where they’re assumed to not belong, or suspecting them of committing a crime simply because they’re being Black.
“Any definition of racial profiling must include, in addition to racially or ethnically discriminatory acts, discriminatory omissions on the part of law enforcement as well,” the American Civil Liberties Union says, emphasis theirs, citing examples of police failing to respond to racial violence.
In O’Gilvie’s case, police say they were looking for a Black man with a prior assault charge who had stolen a phone from his mother and they thought the art history student fit the bill.
It’s likely that the cops were looking for a man in a heightened state of concern, given he had a previous charge, O’Gilvie’s lawyer, David Shellnutt, told the Star. They saw O’Gilvie and thought he matched the hair style, height and skin colour of the suspect. He had a backpack, their description of the suspect said he had a satchel.
“In various parts of the city, that could be anybody,” Shellnutt said. “A short cropped Afro is not an uncommon hairstyle for a young Black man.”
But Sgt. Rachel Saliba, who was the first of the three officers to engage with O’Gilvie, also had a photo and the name of the wanted man. When O’Gilvie denied he was the suspect and verbally identified himself, she did not believe him.
This is where what might have been mistaken identity conceivably crosses over into racial profiling.
O’Gilvie “was stopped and automatically assumed to be lying and automatically assumed to be a threat and automatically assumed to be the person that they were looking for, who could have been anybody,” Shellnutt said.
Saliba and another officer (who has been dealt with at a divisional level) then attempted to take him to the ground and arrest him.
“So this quick escalation, would that have happened if he was not Black? If he looked like me?” said Shellnutt, who is white.
The officers don’t tell him why he’s arrested nor of his right to a lawyer. The escalation continued to the point where he is shocked five times with a stun gun by Const. Seth Rietkoetter, who arrived after the initial interaction, then “placed his left knee across the complainant’s head and neck” even while O’Gilivie was being handcuffed.
An agreed statement of facts between the tribunal prosecutor and the officers’ defence deemed the first three hits with the Taser to be justifiable because, it said, O’Gilvie was resisting arrest. Shellnutt, who has seen police footage of the incident — which has not yet been made public — disagreed that he was resisting arrest.
“Within moments, he’s on the ground,” Shellnutt told the hearing. “He’s not resisting. He’s being pushed and pulled in all directions. His hands are up. He’s clearly confused. He says, ‘What did I do?’ ” When O’Gilvie fell after being tackled, his arms were under his body, Shellnutt said.
Ultimately, three officers were on top of him. “It’s such a violent overreaction,” said Yanful, who is the former founding legal director at the Black Legal Action Centre and who was not involved in O’Gilvie’s case. What leads to the police engagement such as the initial stop in O’Gilvie’s case might objectively be legitimate — in this case, a “mistaken identity.” “But what then ensues often is the profiling.” And profiling is based on stereotyping.
Black men are often stereotyped as dangerous, aggressive and possessing uncommon strength.
When he was thrown to the ground, O’Gilvie’s bank card with his name fell out, Shellnutt says. Police eventually let him go after they found multiple identification cards in his backpack.
“Again I would ask,” Shellnutt said, “would I have been treated subsequent to my identity being ascertained in the same way? Would I have remained cuffed in the back of a cruiser?”
But, as my colleague Jim Rankin previously reported, other than the fact that they were looking for a Black man, “neither the wording of the charges the officers faced nor agreed statements of facts mention anti-Black racism or race as factors.”
In oral submissions, Shellnutt told the police force they were failing to acknowledge that race played a factor in the case. “We cannot recognize that anti-Blackness plays a role in policing at the statistical level alone,” he said.
At the conclusion of a six-yearlong inquiry into racism by police in December, the Ontario Human Rights Commissioner had said: “Systemic racial discrimination, racial profiling and anti-Black racism exists wherever Black people interact with Toronto police services.”
A year prior, interim Toronto police Chief James Ramer apologized for the racism rampant in policing in the face of race-based data showing disproportionate use of force.
Shellnutt told the Star the police are “basically admitting publicly that the data shows that they have a problem of anti-Black racism. But in each case that represents that data, they’re saying, ‘Nah, race wasn’t a factor,’ and refusing to look at it.”
O’Gilvie is suffering severe emotional and physical trauma, his mother told the hearing. A civil lawsuit his family launched against the police was resolved last year with an undisclosed settlement. Sentences for both Saliba and Rietkoetter are to be delivered at a later date.
There is, finally, some accounting for the mistaken identity but not for the problem of racial profiling and little explanation for this level of violence against a compliant man. As journalist-activist Desmond Cole tweeted, “How does mistaken identity explain an assault? Who were the cops planning to attack instead of Hasani?”