Are we allowed to take mobile phone pictures of racial profiling in Germany? What do you do if a police person refuses to say his ID number? And how can BIPOC people in Germany legally defend themselves against unequal treatment?


September 13, 2020, 12:00 CET | Updated on October 12, 2020, 01:00 CET

The Düsseldorf lawyer with Congolese roots, Blaise Francis, shared with our journalist Sandra Bilson (Black City Stories) his experiences and recommendations on dealing with structural racism in Germany, especially by the police. In their Zoom interview, Francis explained what the new anti-discrimination law is about, what is still needed, how BIPOC people can legally defend themselves against discrimination—and what has happened since his offer of free legal advice for all people affected by racism spread rapidly via Instagram.


Sandra Bilson (Black City Stories): Hello and welcome to Black City Stories! My name is Sandra, and we at Black City Stories have joined together with lawyer Blaise Francis via Zoom to talk about structural racism in Germany, especially in regards to the police. He explains what the new anti-discrimination law is about, which possibilities BIPOC people have to defend themselves against discrimination, and what has happened since his offer of free legal advice for all people affected by racism has spread quickly via Instagram.

(This section begins at 0:50.)

“I am committed to equal rights and against violence against Black people”

Blaise Francis: I get threats and insults all the time by now. I have received over 700 messages on Instagram. Most of them are really, really and by far, mostly positive news. [Laughs.] No, don’t be alarmed, positive news!

SB: I am relieved! [Laughter.]

BF: It is predominantly positive news, but unfortunately there are also occasional insults and threats and also very questionable messages, yes. What I mean by questionable messages: for example, the other day I received an email, because I have also frequently addressed the topic of racial profiling recently. I received a message from someone who wrote something like: “Yes, what would happen to me as a white person if I was stopped by your friends from the religious police in Mogadishu? I would be invited to swim in a cage and drown. This is how racial profiling would work with you people!“ This is what I mean by strange. Mogadishu, first of all? What is my relation to Mogadishu?

SB: Yes. [Laughs.]

BF: I would be from the Congo, if anything. I don’t know [laughs]. Then, I’m Catholic. I’m not a Muslim either. So they’re not my friends from the “religious police.” I eat pork, just like the person who wrote me. You notice that a lot of xenophobic things are simply thrown into a pot. Some fears are triggered because I look different, because most of my followers look different. And then everything from Islamism to false nationality is thrown into one pot. That is what I mean by bizarre messages. But then, of course, there are also these clearly right-wing extremist threats.

How do I deal with it? Yes, the first time I read something like this, I was naturally alarmed. I’ll be honest with you, if you’re not used to that, you get scared. But I’ll say this: after the first one I slept on it for a few nights, and that’s when my understanding or my picture of it changed. So I’m not afraid of it at all, and I’m not intimidated at all. To be honest, that just shows me that what I am doing is exactly right. Firstly, it seems that I have been noticed. And secondly, it shows me what problems we still have in our society. I mean, you have to remember that I am not a preacher of hate or a terrorist or anything like that, but I am committed to equal rights and against violence against Black people. Be it psychological or physical violence against Black people and other ethnic minorities. That is what I am fighting for, nothing more and nothing less.
I want us to live together in peace, and I want racism to cease to be an issue in our society, or at least for our society to become better. And yet I am already being attacked for it.
This must be made clear! But, as I said, that just shows me that I am absolutely right in everything I say. I have to do much more. I have to become much more active, because there is much more to do.

SB: Absolutely. Absolutely.

(This section begins at 4:15.)

“We need a national [state] anti-discrimination law!”

SB: Yes, the anti-discrimination law has been in place for a short time now. So how can people make use of the anti-discrimination law?

BF: The first thing you need to know about the anti-discrimination law, which has only been around for a short time, is that it is a federal [county] anti-discrimination law in Berlin.
This means that those affected in Berlin can protect and defend themselves better. But unfortunately discrimination does not only exist in Berlin, but in the whole of Germany. This is, therefore, a point on my agenda, and one that I am constantly addressing publicly, namely that we need not only a federal [county] anti-discrimination law—we need a national anti-discrimination law!

So what is this anti-discrimination law all about?
There is a special aspect to it. Before, there was the General Equality Law, which applies nationwide. The General Equal Treatment Act is a law that gives people who are discriminated against the opportunity to legally defend themselves against discrimination. By being able to sue for wilful default, for abolishment, and for compensation of damages in accordance to this General Equality Law. However, this only applies to the private sector.
The Berlin federal anti-discrimination law, however, does not apply to the private sector, but deals with discrimination by public authorities. The special feature is that, just as in the General Equality Act, there is a reversal of the burden of proof. That means, if I am discriminated against by the police, then I do not have to provide full proof that I have been discriminated against, but only to provide credible evidence that I have been discriminated against. This is a lower threshold in terms of the burden of proof. If I have managed to make it sound logical, if it sounds conclusive, if it makes sense, if the evidence suggests that I have been treated unequally and have been discriminated against, then the authority has a duty to prove and establish whether there has been unequal treatment—and whether it was justified.

This is important because discrimination is very difficult to prove. By now, police officers in particular are also being trained for this. It’s a while now since we’ve heard of those racial profiling cases. The reason was simply that these training measures were not yet as strongly implemented as they are now.
In these cases, the police, because they were so insensitive, openly admitted: “Yes, he wore a hoodie and he was Black. And because he was Black, he looked scary. So I checked him and not the others.”
But no policeman argues that naively and unintelligently anymore in front of the court if such a case should occur. Then he will always come up with some other reason to explain why this person in particular has been checked.
This means that nowadays it is much more difficult to prove unequal treatment, because the police are trained in this area, but do it anyway. Accordingly, such a reversal of the burden of proof is really very important so that the person concerned has better possibilities of legal protection.

SB: Absolutely…

BF: And that is why we need it for the whole of Germany.

SB: Yes, exactly. [Laughs.] But apart from the nationwide version of an anti-discrimination law, is this enough? Is it enough as a measure to fight racism and discrimination, and if not, what is missing?

BF: No, it is not enough! It definitely helps, and that’s why I welcome the fact that it exists in Berlin. But as I said, I would very much like to see it in Germany. That won’t be easy, because once again—we can all guess—what Horst Seehofer [Federal Minister of the Interior of Germany since 2018] said: he said it would be an attack on the police and a general suspicion against the police.

So we are talking about a law that opens up legal protection in case of discrimination. And then the Ministry of the Interior is talking about a general suspicion against the police. If this is the argument, then we are all under general suspicion. Because there are criminal offences, public prosecutors, and the police there to investigate such things. This would mean that we would all have to say: “We are all under general suspicion because there are laws that specify sanctions and legal protection if someone commits crimes.”
That is absolute nonsense! We live in a democracy, which means that state behaviour is also controlled. This is called a system of checks and balances. In other words, control and balance of power.
That is why it is especially important to create laws where people can really exercise control by defending themselves in such situations. But as I said, let’s see if that will happen.

(This section begins at 9:30.)

“We need independent authorities responsible for complaints and investigations against police officers!”

BF: What else do we need? We urgently need independent authorities responsible for complaints and investigations against police officers. Nowadays, let’s say I am stopped by a policeman and he uses some form of violence against me. What do I do, of course? I file a complaint. What happens in almost all these cases? The policeman first files a counter-statement for resistance against enforcement officers and/or assault on enforcement officers. That is the first thing! It is instinctive. This will always happen, actually. But the situation becomes the following: Now we both have a case pending. Charges against the police officer and charges against me.
The first thing that happens, and that is also common practice, which almost borders on structural racism in my opinion: The public prosecutor’s office will stop the charges against the policeman for the time being. According to the statement: We already have the ongoing proceedings of the policeman; the whole thing will be cleared up there. So we will let the police officer’s case against the citizen proceed and suspend the other case, i.e., the citizen’s case against the police officer, until the result of the other is reached.

Why not the other way around? That’s my first question. Why not let the proceedings against the policeman go ahead and stop the proceedings against the citizen first? If the proceedings against me continue, then I am the accused. For the time being I am in a defence situation. That is a completely different position! But okay, that’s the first thing.
What really is the main problem now is the question of who will start the investigation. As a rule, the public prosecutor’s office does not investigate itself. The public prosecutor’s office uses the police for its investigations, as the law says. Police officers are investigators of the public prosecutor’s office. That is the law. So what happens? The police investigate the police.
From my point of view, this is only marginally fair when it comes to accusations of racially motivated violence or disproportionate behaviour by the police due to racism. The whole institution of the police in Germany is given a bad reputation, and the police unions and the Ministry of the Interior are now publicly resisting this, because the whole police force would be in a bad position. This also leads to the fact that when police investigate police, the investigation is not objective. One does not want to file accusations of racism against one’s own colleagues. And it is not in the interest of the police that these accusations are justified in the end.

That is why we urgently need independent bodies that are responsible for investigating police officers. But we also need independent complaint bodies for police officers. At the moment there are only complaint bodies within the police force itself. This means that if a policeman dares to report against another policeman, he must do so in the police department. There is also a famous police officer who always publishes very critical tweets on Twitter. Together with him I was interviewed by 1live [a radio network by the Westdeutscher Rundfunk public broadcasting corporation in Germany], and he was one of the policemen critical of the police. There he described how it works. He also said that he was already called a nest-polluter, colleague’s pig, and told that he should leave the police. That it even went so far that he was once told to shoot himself.

SB: Wow…

BF: Right, very bad. This shows that we urgently need to create the possibility for police officers themselves to address an independent department, ideally anonymously. Similar to a company that has a whistleblower hotline to which employees can turn to if offences are committed in the company. So that these police officers do not have to fear reprisals within the department, so that they are not bullied, etc. Therefore an external department would be very urgent and important!

(This section begins at 13:45.)

“When police officers interfere with fundamental rights, they are obliged to switch on the body cam!”

BF: Let me think for a moment. What else do we need? Have I already mentioned the body cam? No, have I?

SB: No, you did not.

BF: Body cams are cameras that are carried by police officers, on their chests or on their shoulders. They record sound and video and have now been introduced throughout Germany in the federal states and have corresponding regulations. The big joke about these body cam regulations is…they were introduced to protect police officers. That is okay for now. I am also against violence against police officers! But the big joke now is that the regulations are designed in such a way that a police officer has the option whether to switch on the body cam—but is not obliged to—if there is a danger for him or a third party. Vice versa, however, he does not have to do so. And that simply cannot be the case!

This is an absolutely one-sided regulation in favour of the police. This is completely unacceptable! This is the general suspicion: “Citizens use violence against police officers. But the other way around, there is no need for it. So it is a right to vote.” This is outrageous. The police unions, which have always been against any kind of control of police officers, have prevailed. And this cannot be the case! It is not fair! It is not equality of weapons in the legal sense.

In my opinion, these regulations must be adapted in all federal states, and in such a way that it is stated that when police officers interfere with fundamental rights through police action, they are obliged to switch on the body cam. That would also help so much for racial profiling controls.
If you are affected and you see the camera blinking and that everything is being recorded, then the likelihood that a policeman will somehow be harassing you is not very high.
On the other hand, it also protects the police officer. Because then the disputes over who offended whom first are settled. You can watch this on video! Or also the question of who hit whom first. This is very important, because it would make everything much more objective and clearer for both sides. In this respect, I find it completely incomprehensible, and there is no logical reason why such an obligation to use the body cam does not exist.

Furthermore, we also need it urgently because the regulations on recording with your mobile phone are very specific to individual cases in Germany. The question of when it is allowed to record a police officer with a mobile phone is always a question of individual cases.
In this respect, we absolutely need the body cam. It is already common practice in many other countries of the western world. We are far behind again. In many other countries, it is also common practice to record the police with a mobile phone. In the USA, for example, this is the most normal thing in the world! In our country, it always depends on whether you record the non-publicly spoken word or the publicly spoken word, whether you record it for publication, or whether it is only used as evidence. In other words, there are many critical questions which a layperson in this situation is often unable to answer so quickly. Accordingly, these situations often end unpleasantly with the confiscation of mobile phones and custody. In this respect, we urgently need regulations on body cams.

(This section begins at 16:50.)

“Mobile phone recordings: It depends on the situation!”

SB: If someone is affected by structural racism, let’s say racial profiling: Would you recommend that person pull out their mobile phone and film the whole thing, or rather call for help if there are people around who can watch the incident?

BF: I would rather recommend calling witnesses, independent witnesses: “Excuse me, could you please stop for a moment, just stand here as a witness? I have the feeling that I am being controlled and unfairly treated solely because of my skin colour.” Sure, we will see then: Is the majority society then…does it also show civil courage? That is also a question. But basically, I would rather recommend that you really secure witnesses.

As for mobile phone recordings: It depends on the situation! This is very important: If you want to film, the first important thing is to say, “I’m only recording for evidence and not for publication.” Furthermore, you also have to first look around for people who have a listening opportunity. Because if another third person has a listening opportunity, whatever is said is the publicly spoken word. Then you may also record the voice of the police officer, for example. If that is the case, then you should say that way: “There is a listening opportunity for third parties here. So I’m opening the recording.” And: “This is the publicly spoken word I am recording here.” Also to make it clear to the police officer that you know the legal situation.

Lately I have often gotten hints about exactly this: recordings of police officers with mobile phones. The police always claim that mobile phone recordings without permission are prohibited!
For people who don’t believe me: I have an official press release from the police in Kaiserslautern about one of my own cases. The official press release states exactly the above, which is a bold lie! This paper can also be found officially on the internet. It just says: “Recordings of people without their permission are prohibited by the penal code. Recordings with sound from people without their permission are forbidden.” Full stop. I think the background to this press release was quite clear: They wanted to influence the public and give the impression that my client’s recording of the case was illegal so that there was no critical questioning of whether it was public or not. But it was similar in different situations. They always say: “Turn off your mobile phone! You are not allowed to record me without permission!” But they don’t say that it’s because nobody can listen or something like that. They don’t say that at all. But that’s what matters!

(This section begins at 19:35.)

“We need a nationwide identification obligation for police officers!”

BF: What should one do in this respect? Secure witnesses and ask for the police officer’s duty ID. That is important! If the police officer does not want to show their badge, call the police yourself.
There are really cases like this, especially in the area of theft in flats or the like, or robbery, where people pretend to be police officers and ring the doorbell and then enter the flat and I have no idea what will happen, something bad! As a citizen, you have a right to be shown a badge by the police officer, because anybody can come with a nice uniform. In short: Ask them for their ID!
If they don’t want to show you their duty ID, don’t want to give you their service number or their name, then call the police yourself and say: “I’m being stopped here at the moment, being detained by someone who is pretending to be the police. But I don’t know if this is a police officer, and they don’t want to show me their ID. Please send someone!” Simply to put pressure on the police person. Because I have had cases where the police simply wanted to remain anonymous and then said, “No, no, you don’t get anything from me!”

This also happens, and here we come again to the legal regulations. I also have cases where the police officer gave a badge number and name. But then my clients went to the police station to complain, and it turned out that the name did not exist and the badge number does not exist either! He had simply given them false information! This brings us to the next point: We need a nationwide identification obligation for police officers so that this kind of thing cannot happen!
In Germany, this is like a patchwork quilt at the moment. Police matters are a matter for the federal states, which means that they are subject to state legislation in the federal states. Some federal states have such an identification obligation, some do not.

There is a ruling by the Federal Administrative Court which says this is permissible, it is not unconstitutional. Because police officers had filed a complaint against it, stating, “That is a violation of my personal rights, if I have to publicly display data about myself, i.e., my name or my service number on my uniform.” But no, no! The Federal Administrative Court was right to say that two fundamental rights collide with each other here and that the fundamental rights of citizens prevail in this situation because the state has a monopoly on the use of power. Police officers have very far-reaching authorisation norms. They are allowed to run around with weapons. They have handcuffs. They have a lot of permissions to search, to control and to do things. In other words, we as citizens, on the other side, must at least know who we are dealing with so that we can defend ourselves legally. That is why we urgently need this requirement of identification of police officers. Meanwhile, if there is no such requirement in your federal state, ask for identification! Don’t let them get rid of you. If you do not get it, call the police on them yourselves! Otherwise, stay calm.

(This section begins at 22:35.)

“If at least the tone was right!”

SB: Do you think that structural racism will be reduced by the discourse on racism, and especially by the death of George Floyd now?

BF: In the sense that it becomes a focus of attention and what it changes now?

SB: Exactly! Do you think something is improving and people are becoming more aware of it? Or that something will change in the institutions?

BF: To be honest, I have the feeling that the police are taking a step backwards at the moment. I see that very strongly in Frankfurt at the moment, for example. Last weekend I was in Frankfurt myself and got a picture of the situation there because I heard so much about it on Instagram. Because there were demonstrations, and some of them, it must be said, really did not go so well. There were individual people who committed vandalism, which is not right and that I am completely against! But it was individuals. That is very important! It wasn’t a large group but a few individual people.
Now there is increased police presence at any time of day or night, but especially in the evening on the main shopping street in Frankfurt called “Die Zeil” or so. It has a square in front of it. When I was there, I think there were six team buses [of police]. It looked as if there was a football match or a demonstration. But this was a regular evening. Six team buses with police officers who controlled people and encircled them, which is just such an unpleasant feeling in itself, when you are surrounded by five police officers.

The whole thing got out of hand. I have seen another Instagram video, in which a citizen, a POC with a disability—he had a disability card—was detained by the police for over an hour! You can watch it on Instagram. There are 30 policemen standing around this man, who is panicking, who—I think, because of his disability—is even more afraid!
There you can see again how something like this can escalate, and the police once again react with even more disproportionate police action, maybe because they are focused on so strongly and criticised. That is very problematic. I can see and also observe that in the current cases, that police are now even more brutal, and the police officers are rude even quicker. Especially when you ask them a critical question: “How many people have you checked in the last half hour who do not have a dark skin colour or migration background?” To such a question, they react snottily and with threats! It’s also a tendency I see, as the nerves of the police officers are somehow blanking out. But quite honestly, that is just the wrong reaction. You have to take a step back! You have to perceive the citizen as a citizen again. See yourself more in the role of “friend and helper”!

Honestly, if the tone was right, with all these racial profiling controls, I wouldn’t think it was so bad. That’s what I really think. Of course, it’s still wrong when it’s mainly people with a migration background who are checked. But if at least the tone was right! “A very good day to you, Miss/Sir! This is a routine check. May we see your identity card for a moment? Then you can continue your way again immediately.”
If this were to take place in this friendly tone, as if it were a service or a “service provider.” In the same way in which I as a lawyer talk to my clients. When we meet for the first time, I also ask my clients for their identity card. That alone would help so much already and take the fire out of such a situation. But unfortunately the opposite is true. But I hope that by having these discussions, we will see a long-term improvement. But at the moment things have gotten a little worse. In my personal perception.

SB: Same here.

(This section begins at 26:45.)

“To all the POCs: Hold on!”

SB: How can we, all of us, or each of us individually, create more awareness? How can we continue to deal with it, because there are people, especially POC, who are just tired. They don’t even want to talk about it anymore because they feel that they are always being asked the same questions and answering the same questions.
They don’t want to talk about whether racism exists, but rather have a discourse about how to deal with it, what can be done about it, what has to change. That is why we are doing this format. And that is why we are also grateful to you for taking the time!

BF: With pleasure!

SB: But yes, how do you deal with it as a POC—or as someone who is not affected by it and is slowly becoming aware of his privileges?

BF: First of all, to all the POCs: Hold on! An appeal to everyone with dark skin colour, but also to other ethnic minorities here in Germany: Hold on! Now is the time!
We have taken a lot of momentum from all these demonstrations, and that is unique, as far as I can remember. There have never been so many demonstrations in Germany after a case of this kind. Most of the time, something happens, then a demonstration takes place and then it’s over again. Then it’s silent again. Then everyone goes back to their old patterns. I think that is a little different now. Now, we have really had so many demonstrations. It’s been almost two months now, and you can really see that this is not just a trend. Especially in the community, you can see that this is not just a trend. It has become a movement!
Many groups are working on many concrete ideas to influence politics, legislation, government. And it must continue like this! Now is really our time to make a difference!
We are also a little bit responsible to our ancestors, who had to fight much more than we did to get these rights we have now, who really bled for us in the truest sense of the word. In this respect, we have a responsibility to carry on now. That is how I see it. So don’t bury your head in the sand and say, “I don’t want to deal with it!” but really carry on!

On the flip side, the majority society…to be honest, we should not be the ones who have to engage in this! The majority society must get involved! All those people who claim that they are not racists must get involved! Because the problem of racism is not a Black problem. The racism problem is a problem of white society, to put it bluntly!
I don’t discriminate against people with dark skin colour, but I am discriminated against by white people. This is very important, and this self-understanding has to get into people’s minds. It’s not enough to say, “Well, I personally don’t insult anybody racially, and I don’t attack anybody for racist reasons. Thus, it’s not an issue for me. I do not have to deal with it. That is not my problem!” No, that’s not the way!
The majority society here in Germany is white. And if you claim that you live in a racism-free country or in a country where racism allegedly plays a subordinate role, then you have to take action if you do learn about racism and really defend society from it or take action!

This podcast is supported by the Stars4Media pilot project.

Federal Anti-Discrimination Law
The federal anti-discrimination law was adopted in Berlin on June 4, 2020. It prohibits authorities, public schools, and the police from discriminating based on skin colour, gender, religion, physical or mental disability, age, sexual identity, ideology, or background. The country’s anti-discrimination law is the first of its kind in Germany, aiming to help protect marginalised groups and to establish the appreciation of diversity as a guiding principle legally.

Study on Racial Profiling in Germany
Federal Interior Minister Horst Seehofer had canceled the study on racist profiling in July 2020. As a consequence of the “Black Lives Matter” demonstrations and other police violence cases in Hesse, Berlin, and Düsseldorf, the police are increasingly coming under criticism. Thanks to a Bundestag petition, the study on racist profiling is to be demanded by the police.