NRO Rejects Evidence, Law, and Statistics On Racially Biased Policing To Slam DOJ's Investigation Of Ferguson Police

National Review Online columnist Mona Charen criticized the Department of Justice's efforts to address potential civil rights violations by the Ferguson Police Department, calling previous investigations in other jurisdictions “heavy on the implied racism” despite statistical evidence of racially biased and unconstitutional policing tactics.

On September 4, Attorney General Eric Holder announced that the DOJ would investigate the Ferguson Police Department, an overwhelmingly white force with a history of serious misconduct, after one of its officers shot unarmed black teenager Michael Brown. These types of investigations are not unusual for police departments under suspicion for systemic abuse of authority and civil rights violations, but right-wing media have still accused Holder of playing “the race card” and have called the DOJ's involvement “inherently political” and “absolute garbage.”

In a September 9 column, Charen followed the attacks on Holder and questioned the objectivity of the DOJ's investigation. She suggested that it “will be premised on the racist-white-cop-shoots-black-man narrative” because Holder acknowledged he understood the mistrust between the police and the Ferguson community both as the attorney general of the United States and as a black man who has been unfairly racially profiled in the past.

Charen went on to characterize Holder's involvement in Brown's case as another example of the DOJ's “extremely aggressive pattern vis-à-vis local police,” and used as her example a recent investigation of the Newark Police Department that showed officers unjustifiably stopped and arrested a disproportionate number of residents of color. As far as Charen is concerned, the number of stops in Newark “might be too low,” however, and the statistics “do not come close to proving police wrongdoing” :

The Department of Justice recently concluded an investigation into the Newark, N.J., police department, which it found to have repeatedly violated the civil rights of Newark's black residents. The evidence? Justice found that while blacks account for 54 percent of Newark's population, they represent 85 percent of pedestrian stops and 79 percent of arrests.

Police misconduct must always be taken seriously and vigilantly corrected, but these numbers do not come close to proving police wrongdoing, far less denial of Newarkers' civil rights. To know whether 85 percent of pedestrian stops is a reasonable number or not, you need to know how many pedestrians of various races are committing crimes. If 90 percent of pedestrian criminals are black, then 85 percent might be too low. In any case, the relevant measure is the percentage of criminals, not, as the Justice Department explained, whether “officers ... disproportionately stopped black people relative to their representation in Newark's population.”

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Announcing the DOJ's report, Holder went heavy on the implied racism. “We're taking decisive action to address potential discrimination and end unconstitutional conduct by those who are sworn to serve their fellow citizens,” he declaimed. It's possible that Newark police are engaged in wrongdoing, but the DOJ's use of statistics certainly didn't prove it. If the attorney general believes that black and Hispanic officers are stopping and arresting black people out of racial animus, he failed to say so, and if not, he's in effect arguing that all of the misconduct is attributable to the roughly one-third of the force that is white.

But Charen's condemnation of investigations into unconstitutional police practices -- including improperly performed stop-and-frisks -- gets the evidence, law, and statistics all wrong.

Although Charen argues that “the relevant measure is the percentage of criminals,” she ignores the fact that most of the people stopped by the Newark police weren't criminals at all -- they just were less likely to be white. In fact, according to the American Civil Liberties Union of New Jersey, “75 percent of stops involve innocent individuals. Only one out of four individuals stopped by the Newark Police Department is arrested or issued a summons. From July to December 2013, thousands of people in Newark were stopped, questioned by police, and many undoubtedly were also frisked, even though they were completely innocent.” Darius Charney, an attorney for the Center for Constitutional Rights who sued the New York City Police Department over its use of unconstitutional stop-and-frisk tactics, told The Atlantic that this innocence rate damningly suggests that to some police, “law-abiding black people are more suspicious -- look more suspicious, behave more suspiciously -- than law-abiding white people ... race is a proxy for reasonable suspicion.”

Charen's bad grasp of stop-and-frisk statistics in relation to black men and criminals is rooted in the same debunked justification for unconstitutional racial profiling that failed in New York City. In the 2013 federal court opinion that found the type of stop-and-frisk previously practiced in New York to be unconstitutional, the judge warned that "[t]here is no basis for assuming that an innocent population shares the same characteristics as the criminal suspect population in the same area," and found rationalizations like Charen's to “reveal a serious flaw” in logic. The court went on to address a nearly identical fact pattern that Charen dismisses:

The City defends the fact that blacks and Hispanics represent 87% of the persons stopped in 2011 and 2012 by noting that “approximately 83% of all known crime suspects and approximately 90% of all violent crime suspects were Black and Hispanic.” This might be a valid comparison if the people 178 stopped were criminals, or if they were stopped based on fitting a specific suspect description. But there was insufficient evidence to support either conclusion. To the contrary, nearly 90% of the people stopped are released without the officer finding any basis for a summons or arrest, and only 13% of stops are based on fitting a specific suspect description. There is no reason to believe that the nearly 90% of people who are stopped and then subject to no further enforcement action are criminals. As a result, there is no reason to believe that their racial distribution should resemble that of the local criminal population, as opposed to that of the local population in general. If the police are stopping people in a race-neutral way, then the racial composition of innocent people stopped should more or less mirror the racial composition of the areas where they are stopped, all other things being equal.

These types of civil rights violations -- which also include unreasonable searches and seizures in violation of the Fourth Amendment -- don't require the showing of “racial animus” that Charen alleged Holder failed to prove in the New Jersey investigation. In Ferguson, just like in Newark, the Civil Rights Division is instead investigating a “pattern or practice” of misconduct, pursuant to its longstanding authority granted to it by Congress under the 1994 Violent Crime Control and Law Enforcement Act. Charen's claim that the racial makeup of the Newark Police Department somehow disproves the DOJ's report also incorrectly assumes the relevance of white against black animus. According to a recent Atlantic report on stop-and-frisk in Newark and New York City, the demographics of a police force do not necessarily prevent unconstitutional stops, arrests, or racially biased enforcement tactics: 

It may not matter enough that a department is well integrated. (The NYPD is more than 40 percent black and Hispanic; Newark's department, 74 percent.) An abundance of evidence demonstrates that race will come into play for cops, just like it does for any human being. Psychologists who study unconscious bias have shown that no matter what a person's conscious attitudes, he or she tends to associate black faces with unfavorable and nefarious traits -- a finding that holds true, one important study suggests, for about half of black people themselves. If you're a cop, add to this a daily walk past an all-minority MOST WANTED poster in your precinct house, and you're going to be prone to making some reflexive assumptions.

It is these “reflexive assumptions” about an innocent demographic that lead to the questionable law enforcement policies that Charen defends.

Photo via Flickr/William Avery Hudson under a Creative Commons License.