The Color of Justice

It’s been more than a decade since 9/11, but the backlash against South Asian Americans in the realm of law enforcement continues. In March 2012, South Asian Americans Leading Together (SAALT) and six other organizations released a report “In Our Own Words: Narratives of South Asian New Yorkers Affected by Racial and Religious Profiling” that reveals numerous stories of discrimination in everyday life: workplace, schools and neighborhoods. Perhaps the saddest aspect of the stories is the mistrust that’s fostered within communities as a result of discriminatory acts by people outside the community.

One 18-year-old Hindu male reported, “I was arrested by a School Safety Agent in Flushing, Queens, in 2009. I was searched ...[and] questioned … The tone of the conversation was aggressive and hostile. I was scared ... my friends and family don’t talk to me anymore. My family thinks I am a criminal. I told my family members about this incident, but they take the [government’s] word over mine, so they don’t believe or trust me …” Other stories tell of government officials asking individuals to spy on other individuals in the community or be locked up.

Airport Discrimination
While 2011-2012 saw the birth of Occupy Wall Street and other protest movements, it also saw a rise in media reports of a public outcry against bullying and discrimination. As recently as April 2012, Bollywood star Shahrukh Khan visited the United States to speak at Yale University and was detained at a New York airport for two hours. Sources reported that the letter by the US immigration department said Khan’s name was “flagged” in their system, requiring approval of senior authorities to clear him. Later the actor said, “Whenever I start feeling too arrogant about myself, I always take a trip to America—the immigration guys kick the ‘star’ out of ‘stardom.’”

While detention of a star (or the unorthodox airport frisking of a political figure in the case of President APJ Abdul in 2009) causes a media flurry, most people can’t hope to have their flight status concerns as quickly resolved. Advocacy groups believe that discrimination is underreported.

Hoping to get a more accurate read on airport discrimination, nonprofit organization The Sikh Coalition released an Android and iOS mobile application FlyRights that helps people report incidents of harassment at the airport. The free app not only offers information about TSA policies, but allows the filing of official complaints with both TSA and The Sikh Coalition, too. Within a month, it had been downloaded over 12,000 times. According to The Sikh Coalition, three weeks of app use yielded more complaints of airport discrimination than the total number of complaints received in the first half of 2011 by the Department of Homeland Security.

Congress Measures
This finding begs the question: just how much discrimination exists in our criminal justice system? Can we trust the figures regarding Indian-Americans that are offered by the American criminal justice system? Or is discrimination against both victims of crime and criminals underreported across the board?

End Racial Profiling Acts were introduced into Congress in 2001, 2004, 2005, 2007, 2009, and 2010, but have never passed. The Senate hearing for ERPA 2011 on April 17, 2012 was heated, particularly on the issue of racial profiling for purposes of antiterrorist activities. Those opposed to ERPA made no reference to the fact that the FBI’s statistics show that the vast majority of terrorist activity in the United States is conducted by non-Islamic extremists. ERPA 2011, if passed, would make it illegal for all law enforcement officers to use race and religion as means to profile persons and entire communities of color and would provide methods for training officers to police better based upon behaviors, not race and religion.

Officials that subscribe to the propriety of racial profiling give the public the perception that increased suspicion of particular communities is justified, that hateful speech and acts are reasonable. Longtime residents of the Bay Area usually think of their home as a more liberal, tolerant community than most other places in America, but last year, an anomalous violent assault suggested that not only is it possible there is underreporting of hate crimes against perceived Muslims, but that underreporting occurs because of how callously or obliviously people respond when it is reported.

Case in Point
On November 21, 2011, graphic designer Atul Lall made a quick stop for some of the ingredients to prepare Thanksgiving dinner at a crowded Lucky’s Supermarket in San Jose. Pulling out of his parking space, he inched forward to exit when four angry men lurched diagonally several lanes of traffic and stumbled, apparently intoxicated, in front of Lall’s vehicle.

Two of the four men stopped a few feet from the front of his car. One man stood in front of his car, preventing him from leaving the lot. Another man who reeked of alcohol yanked Lall’s car door open. He yelled at Lall, “Why are you staring at my friend?”

Confused by the unexpected confrontation, Lall didn’t know what to say. A second man started hitting Lall. Both men beat Lall, while spitting on him and pouring alcohol over his face and car. The guy who was holding his door open said to him, “Just sit there and take the beating, just take it–don’t try and fight back.” Lall refused to be dragged from the car.
A third attacker ran towards Lall’s door saying that he had a gun and that he would shoot Lall if he tried to defend himself. The second man called Lall “a terrorist” and hit him in the face with a tequila bottle. These attacks lasted a few minutes, but Lall’s jaw was broken, requiring two heavy-duty titanium plates for reconstruction. He lost two teeth and four other teeth were damaged. One of the attackers had cut beneath his chin, requiring eight stitches and leaving a sizeable scar. Left with chronic pain, insomnia and daily headaches, he lost all of his savings and his job.

Although the parking lot was crowded with witnesses, nobody assisted Lall. Perhaps the “bystander effect” was at work. In a series of experiments that started in 1964 when Kitty Genovese was stabbed to death in the presence of a group of witnesses who reportedly did nothing to help, emergency situations are staged with varying numbers of witnesses present. In each case, the larger the group size, the less likely anybody is to help the victim. During his attack, Lall could see people driving by in his rearview mirror, but nobody stopped to help him.

You might think that a disturbing public attack with multiple witnesses, a hate element and possibly surveillance tape footage would be promptly investigated. But it took six weeks and ten requests by Lall for the San Jose Police Department to bring him in to meet with a sketch artist. Lall later complained that, “the investigating detective was condescending and never communicated anything about my case to me. He didn’t look for witnesses and even made errors in the police report. The SJPD even made remarks like what happened to me is no big deal because I’m alive and homicides happen every day.”

Lall contacted city officials, internal affairs, and the media on his own in an attempt to push the police to investigate the attack. He was grateful that Councilwoman Rose Herrera and the South Asian Bar Association (SABA) managed to come up with a combined $3000 reward for information on the assailants. Lall hit the streets with a friend and his girlfriend to plaster “Wanted” posters about town and search for witnesses. By approaching various “thugs” in his neighborhood, he learned that one attacker was named “Emilio.” A source told him that the four men who attacked him have committed petty strong-arm robberies in the area.

The police caught “Emilio,” but the other attackers remain at large. An assigned detective is still conducting a follow-up investigation. “Emilio” had previously been arrested for a similar attack. Police have since claimed that the surveillance footage of the attack show the attack was traffic-related. They seem to have concluded that because it was not an attack motivated by anti-Islamic sentiment, notwithstanding the hateful epithet hurled at Lall during the attack, it could not be charged as a hate crime.

Pursuit of Crime
Attorneys for the Santa Clara District Attorney’s office commented that it was not charged as such because the hate element could not be proved by the stringent criminal standard “beyond a reasonable doubt.” It was set on the early resolution calendar for June 13, 2011 to see if a settlement could be reached.

Zahra Billoo, the Executive Director of the San Francisco branch of CAIR, commented, “Atul’s case was particularly violent. I don’t know that we’ve had such violent incidents in the Bay Area over the last couple years.” She noted that the distinction between hate incidents and hate crimes is that the “latter is bias-motivated, so there’s legal action that can be taken. With a hate incident, it’s a lesser incident, such as when someone walks by and calls you a terrorist.”

CAIR collects information about these lesser incidents because it gives the group an idea of the current climate. The last year that CAIR counted hate incidents in the Bay Area was 2008-2009. Less than 10% of the calls that year were hate incidents, but Billoo believes that advocacy groups hear more anecdotally

than they do by case report. Since there are no legal consequences to a hate incident and the only effect is increased documentation, people are less likely to report them, just as they were unlikely to report airport discrimination prior to the release of the FlyRights app.
Billoo stated, “Law enforcement and prosecutors are sometimes reluctant to pursue hate crimes charges because they’re very difficult to get a conviction on. So if it’s a question of a battery or a hate-motivated battery and one’s easy to convict and the other not to so much—do you push ahead? Just proving them—having those facts and proving them is difficult. Was the fight started because someone didn’t like you because you’re Indian or was the fight started for another reason and included an Indian slur? Those nuances leave a lot of room for charging it or not charging it as a hate crime.”

The Turban Bias
Sometimes law enforcement infers there was a hate crime. Last spring, two elderly Sikh men taking their daily walk together were shot on East Stockton Boulevard in Elk Grove, California. Surinder Singh was found dead, while Gurmej Atwal was left in critical condition. Both men wore Sikh turbans and had beards that signified their faith. While it was never definitively determined to be a hate crime, the Elk Grove Police Chief said in a statement: “We have no evidence to indicate there was a hate or bias motivation for this crime; however, the obvious Sikh appearance of the men, including the traditional Dastar headwear and lack of any other apparent motive, increasingly raise that possibility.” The crime was never solved and the mens’ attacker is still at large.

Four months before that, a fifty-six-year-old Sikh American cab driver wearing a turban was assaulted by passengers who shouted anti-Islamic remarks as they beat him.

The criminals ultimately took a plea bargain, but Amar Shergill, an attorney who worked in support of both the cab driver and the two elderly Sikh friends, believes that the plea and sentences were appropriate. He commented that the Sikh-American community in the Sacramento area has a long history of working with elected officials and introducing itself to other community organizations and that this led to more support when attacks took place. Shergill said, “The Muslim and Sikh community have worked very well together when incidents like this have come up. Everyone in both communities realizes that an attack against one is an attack against everyone.”

As recently as December 2011, a Sikh man was stabbed while waiting to board an airplane at the airport in Fresno. In fact, the Sikh experience of hate incidents seems better documented than that of other subgroups of South Asians in the Bay Area—and it also seems worse. A 2010 report by the Sikh Coalition that surveyed 1,300 Sikhs in nine Bay Area counties revealed that 38% of the Sikh adults surveyed had been called epithets: “Bin Laden,” “terrorist” or “towel-head.” Ten percent of surveyed Sikhs reported being victims of hate crimes and 68% of those crimes were physical attacks.

Status Quo
In contrast, despite the assistance of Councilwoman Rose Herrera and the South Asian Bar Association, Lall felt alone after he reported the attack. A San Jose Mercury News newspaper article about the attack showed video footage of the attack that seemed to contradict Lall’s interpretation of events. Lall responded that the video was sent out for formatting and was not accurate. The comments section of the article included numerous disparaging remarks including: “The point is if the Indian guy almost ran over those folks twice then I can understand why he got a whooping” and “If Lall tried to run them over he should be arrested for attempted murder as well as providing a false police report. Way to play that race card.” 

Lall’s reaction to the status quo—his proactive quest to find his attackers and his open criticism of SJPD—isn’t usual among members of the Indian-American community when faced with questions of criminal justice on either side of the law. The community more often protects the status quo, than challenges it. Because it marked a significant social change, media seized on the May 2012 rally in New Jersey in which Indian Americans came out in droves to support Dharun Ravi before his sentencing for bias intimidation, invasion of privacy and witness tampering.

When I asked Billoo what she believed were the biggest challenges faced by CAIR in the San Francisco Bay Area, she cited the FBI interviews of Muslims suspected to be terrorists.

These are problematic because of how suspects respond. Since 9/11, the FBI has been visiting individuals in the community for what it calls voluntary interviews, which are experienced by individuals as interrogations. They’re asked about everything: their religious beliefs, political activities, language capacities and international travel. Rather than asserting their rights, Indian-Americans and people from similar cultures tend towards to offer the questioning agents hospitality. Many of the targeted individuals aren’t used to interactions with law enforcement. They have never even received a speeding ticket.
Billoo said, “And so when you open your front door and someone with a gun and badge wants to talk with you, you don’t know what to do. And quite often you’re going to do the wrong thing—the very awkward joke in circles of the Arab, Muslim and Indian advocacy groups in the area is that our culture of hospitality as South Asians, as Muslims, the Eastern culture of hospitality often leads to people opening their doors really wide and saying come on in and offering chai … They should be less worried about putting cardamom in the chai and more worried about contacting an attorney right away.”

A criminal defense attorney who did not wish to be named agreed, saying of Indian-Americans that become involved in the criminal justice system there is an “obsequiousness before officials, and over-disclosure.” Although he acknowledged this problem existed in the community’s response to law enforcement generally, he didn’t think that hate incidents or racial profiling presented a problem.

Instead, he said, “I have had many Indian clients in jail. To my knowledge they did not have any problems with racial profiling. Or any negative experience in jail. The opposite. They did not have to join the usual gangs and were left alone. Indians have a rep for being nerds.

And don’t get profiled.” But my own efforts to talk to criminal defendants about their experiences (and perhaps verify what the attorney told me) were fruitless. Nobody wanted to talk about what had happened to them or why.

Like New York City, the Bay Area is a melting pot with a large Indian immigrant population, but the dismal findings in the SAALT report—findings like an 18 year old whose parents trust the government over their son’s word—don’t appear to apply in Northern California.

Besides the fact that 9/11 occurred in NYC, what’s the difference? South Asians in both locations operate within a hospitality culture. It would seem that Indians have as much of a reputation for being nerds in NYC as they have in the Bay Area. Some might conclude that the Bay Area is simply better for South Asian Americans than New York is.

Social perceptions within the community or perhaps it has to do with perception of social order in the Bay Area. With a cultural history of a strong independence movement, you might think that Indian-Americans by and large would have a strong affinity for social justice, for speaking out or fighting against unfair treatment. But there are very few Indian-Americans involved in Occupy or other forms of protest. One Indian-American woman involved in restorative justice commented that her heritage in connection with the independence movement was what inspired her vocation of working for social justice, but this seems to be unusual. Might the difference be that much of the Indian-American population in the Bay Area tends to be affluent, conservative and fully supportive of the establishment?

Even during the fight for India’s independence, most of the middle and upper classes tended to cooperate and tried to suppress the independence movement. It was the masses that got behind Gandhi, not the well-to-do. As in any uprising in history, there were some intellectuals, artists, and activists interested in overthrowing the government, but most of the upper class felt beholden to the British for their livelihood and initially even worked with them in terms of helping them and subverting the independence movement.

Many of us in the Bay Area feel similarly beholden to existing institutions for our good fortune. Many of us are more likely to support the free market system, trust that our government will conduct itself appropriately, and feel antagonism toward those we believe are unnecessarily rocking the boat.

It’s this mindset that encourages silence and causes antagonism among many successful Indians and NRIs toward figures like Arundhati Roy, whose work on behalf of the interests of the working classes and the poor is frequently dismissed or denigrated. It’s this mindset that chooses to ignore those hate incidents and racial profiling that do occur. We’re more likely to worry about manners than about the possibility of real harm when law enforcement comes knocking.

On whichever side of the controversy over whether Trayvon Martin’s killing was justified you may fall, one takeaway point is clear to me. It took the people’s outrage over what happened to Martin to force officials into an investigation that was necessary and that most likely would have been conducted from the start had Martin been white. If history has anything to say about it, the repercussions of underreporting, or failing to support those who do complain, can be far more devastating in the long-term than speaking out.

During my years practicing law, I learned that an investigation doesn’t always give us justice, the truth or the answer we want. But, at a bare minimum, the investigation fueled by public outcry and support for those that appear to be victims of injustice gives us evidence from which to build a better sense of the society in which we live and the ways in which it needs to be better.

Anita Felicelli is a writer and attorney who lives in the Bay Area. She is the author of the novel “Sparks Off You” and other books.

Categories   Cover Story  / Features 
This article is part of the tags: 9/11  / cover stories  / racism 

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