O.C. Asians Say Police Photos Are Harassment : Dispute: Fountain Valley’s ‘mug’ shots unfairly stereotype youths as gang members, complainants say.

A common police practice of compiling photographs and records of people they suspect to be gang members is drawing criticism from some Asian-Americans who contend the practice results in harassment and unfairly stereotypes many young men.

About 15 young men have filed separate complaints with Fountain Valley police, contending that officers in the past year have wrongfully accused them of being gang members and took their photographs without consent for a police “mug” file.

Fountain Valley police declined to discuss the complaints, but Police Chief Elvin Miali said that like many departments in Orange County, his officers use the collection of photographs to track gang members. Police said the mugs are a valuable tool in fighting the increase of criminal activity by gangs in Orange County.

In Fountain Valley, police say, these pictures are taken only with the verbal consent of the person being photographed or as part of the arrest procedure.

But those who question the practice say the police do not request permission to take photos, that some Asian youths are being unfairly branded as gang members and that the practice may at times step on people’s civil rights.

“They’re trying to say Asian is synonymous to gang ,” said JoAnn Kanshige, whose sons have filed complaints against the Fountain Valley Police Department. “These kids are dressed as well as the hakujin (white) kids, yet the Asian kids seem to be pulled over more often.”

Kanshige’s sons, Mark, 25, and Jason, 18, contend that they are being harassed because of their race and that they are being stopped without probable cause. They and about a dozen others have formed a grass-roots group called the Orange County Asian-American Youth Alliance to address the issue.

The youth alliance has the support of some established community organizations, including the National Coalition for Redress/Reparations and the local chapters of the Japanese-American Citizens League. Attorneys for the American Civil Liberties Union are filing for access to Fountain Valley police files on the group members.

“We do think the rights of young men, particularly young minority men, have been abused by the practice of putting their photos in a police mug book,” said Paul Hoffman, legal director for the ACLU of Southern California.

At the heart of the complaints is the police practice of collecting photographs of people, primarily young minority males, whom they suspect of being gang members. Pictures can be taken even if a person is not arrested or charged.

Some of the snapshots have found their way into the county’s state-of-the-art computer system, although Miali says Fountain Valley police only enter photos of those who have been arrested. The database, dubbed General Reporting Evaluation and Tracking, allows 27 county law enforcement agencies to peek at files and photographs of suspected gang members.

The public does not have access to the system, though it is possible that investigators may sometimes show photos from the database to crime victims as part of a photo lineup, Dist. Atty. Michael R. Capizzi said at a news conference last week.

He added that the database is carefully screened.

“I think the chances of (errors) are slim to none,” Capizzi said. “We have safeguards in place. The system doesn’t have room for those who don’t belong.”

Law enforcement officials said compiling gang profiles is necessary to deal with the increasing gang problems caused by the county’s 226 gangs and their 13,000-plus members. Gangs are a pressing concern of residents as well; a recent gang information meeting in Fountain Valley drew close to 200 parents and teachers.

It is legal for police to take photos of people in the field as long as they have “probable cause.” Police said they do not arbitrarily snap mug shots. Rather, they follow a set of criteria to determine whether a person warrants a picture, they said.

“We have to suspect some type of criminal activity,” said Capt. Scott Jordan of the Garden Grove police. “We can’t just stop some guy walking down the street.”

Besides, economics dictates prudence. “Polaroid films are expensive,” said one officer.

Some civil libertarians, however, are not convinced that police exercise proper restraint.

There exists little safeguard against abuses or errors, they said. The practice unfairly stigmatizes those who have never been arrested or charged with a crime, they said, and promotes “guilt by association.”

The police practice at times treads the gray area of the Fourth Amendment against illegal search and seizure, said David Goldberger, professor of constitutional law at Ohio State University and former legal director of the Illinois ACLU. “What they are doing is taking it as close to the line as they can.”

“In the interest of keeping society safe and protecting individual rights,” said Lt. Andrew Hall of the Westminster Police Department, “it’s not always a clear line.”

Some law enforcement scholars wonder whether such an aggressive police tactic could backfire.

By wrongly labeling someone a gang member, “all you’re doing is forcing them into a gang, because the gangs are treating them better than the police,” said Wilbur Rykert, a former Michigan state trooper who is now director of the National Crime Institute at the University of Louisville.

Police said the mug books help them keep track of gang members. But some people doubt their effectiveness in helping to identify suspects. Its use as a mug book for crime victims is dubious, they say, because eyewitnesses are inherently unreliable.

“I’m not interested in whether it’s legal or not,” Rykert said. “The question is whether this does stop the problem or not. I doubt it.”

Those interested in the issue are keeping an eye on a court case in San Jose involving a mug book.

Police there had compiled an all-Asian mug book to help solve a rash of violent home invasions in the Vietnamese community. Although considered helpful in investigations, the book was scrapped last year after angry community leaders denounced it as illegal and racially insensitive.

But the abolishment didn’t come soon enough for Ted Nguyen, a self-employed construction contractor who was picked out of the photo album by a victim of a home robbery.

The 27-year-old San Jose man was acquitted after a jury trial. Under cross-examination, the victim admitted she was not certain that Nguyen was the assailant. The defendant also offered a reason why he could not have committed the crime: He was getting medical treatment for an eye injury at the time.

Nguyen’s troubles began when he drove up to a friend’s house during a drug investigation. He was taken in, photographed, questioned and released. The photos of Nguyen, who had no previous criminal record, were included in the album.

Nguyen spent three months in jail awaiting trial because he couldn’t raise the $500,000 bail. He’s now suing San Jose and its Police Department for unspecified damages, contending that his constitutional rights were violated and that his reputation was ruined.

Nguyen’s suit was filed by lawyers for the ACLU, the Asian Law Alliance and a prominent San Jose law firm. It is expected to go to trial sometime next year in Santa Clara County Superior Court.

In the meantime, the practice goes on in Orange County.

Each police department has a different policy, some stricter than others, regarding the gathering of photos.

In Santa Ana, for example, police officers require written permission before photographing someone, said Lt. Bob Helton. Police in Fountain Valley ask for verbal consent before snapping the shutter, said Police Chief Miali.

Most departments use one of the following criteria to determine whether someone is a gang member:

The person admits to being a gang member; the information comes from a reliable informant; the information comes from an untested informant, plus the corroboration of someone reliable; the person resides in or frequents a known gang area; the person wears gang symbols, such as clothing or tattoos; or the person has been arrested several times with known gang members. Also, a person is considered a “gang associate” if repeatedly seen with known gang members.

The Los Angeles County Sheriff’s Department and Los Angeles Police Department follow the same criteria. Sheriff’s deputies ask for consent before snapping photos, while Los Angeles police allow only its gang officers to take photos of suspected gang members.

Police say they rarely get a refusal when they want a snapshot of someone.

“Most gang members are proud of their membership,” said Rick Reese, president of the Orange County Gang Investigators Assn. “That’s their family.”

But in Fountain Valley, some Asian-American youths are questioning their treatment by police.

“What they consider an Asian gang is a group of Asians standing around or driving together,” said Dan Nguyen, 16.

Added Mark Kanshige: “Can you imagine driving down the street and the police pull you over for a minor traffic violation and the police tell you get out and all these police cars start showing up and they stand you up against the wall and take your picture and you’re wondering why they’re doing it?”

Some of the youths who have filed complaints have had legal problems before, but all said they were not gang members.

About five years ago in Los Angeles County, Mark Kanshige made a plea bargain with the prosecutor and was convicted of assault with a deadly weapon. He spent 15 months in the County Jail there. Another member of the alliance, a juvenile, was convicted of attempted auto burglary in Costa Mesa last year.

Still, they and their supporters contend that does not mean police should be allowed to harass and photograph them.

“If I’ve been arrested before, it still doesn’t make it right,” said David Monkawa, a representative of the National Coalition for Redress/Reparations. “If I’ve been arrested 100 times, it still doesn’t make it right.”

Dan Nguyen said he has been stopped about four times in the past six months--sometimes for what he says is seemingly no reason, other times for minor violations such as missing a front license plate or failing to signal during a left turn. Although he was not ticketed each time, his photograph was taken at least twice, Nguyen said.

“I have a fear that anything I do, the cops will pull me over,” he said. “I look both ways now when I go out of my house. They know you’re not a gang member, but they still take your picture.”

Miali declined comment on the complaints. But he said his department’s mug file is kept in the department for gang intelligence and identification purposes only, and not shown to the public. Only booking photographs, taken after an individual is arrested, are shown to victims in photographic suspect lineups, Miali said.

Miali also said officers by law don’t have to ask permission to take the intelligence photographs, but he requires the consent as department policy.

“If you don’t want your picture taken, you don’t have to have it taken,” Miali said during a recent meeting with alliance members and representatives of various Asian-American organizations.

Alliance members said that is not always the case.

“In my experience, every time they take my picture, they don’t ask. They just say, ‘Go over there,’ ” Nguyen said.

The solution may lie in more emphasis on community policing, with officers helping to clean up their community, Rykert said.

“They ought to give the police paintbrushes, instead of cameras,” he said.