The War on Cops. Heather Mac Donald
substantiated only 7 percent of the complaints that it received in 2014. If the Justice Department’s Special Litigation Section sought to corroborate its anecdotes or get the department’s version of the incidents, it is not letting on. Nor is it clear that these questionable arrests, even if reported accurately, represent standard procedure in the department, rather than aberrations. The report routinely uses the words “frequently” and “common” as substitutes for an actual showing of established practice. One of the targets of an allegedly unconstitutional arrest is white, suggesting that the police are equal-opportunity offenders when they allegedly offend.
The report is more persuasive in describing the department’s shoddy record-keeping and the lax oversight of beat cops. The failure to supervise officers’ use of force results in excessive resort to Tasers. Equally problematic is Ferguson’s practice of issuing a quasi-warrant known as a “wanted” without the requisite probable cause to believe that the target has committed a crime. (Many other departments abuse “wanteds,” too.) The municipal court, like the police department, is error-prone in its records and notice systems.
Had the Justice Department blasted Ferguson’s management and training failures and left it at that, it would have been on solid footing. But the imperative to racialize the problems was overwhelming, especially given Holder’s previous statements against Ferguson and the subsequent discrediting of the Brown story. So the department trots out the usual statistical analyses with which to bootstrap a charge of “intentional discrimination” against blacks. And these statistical analyses are irredeemably deficient.
The Justice attorneys use population data as the benchmark for police activity, rather than rates of lawbreaking. The most frequently quoted statistic from the report is that blacks constitute 67 percent of Ferguson residents but made up 85 percent of all vehicle stops between 2012 and 2014. Whites made up 15 percent of all traffic stops during that period, but 29 percent of the population. Such figures are meaningless unless we know, just for starters, what the rate of traffic violations is among black and white drivers. Though most criminologists are terrified of studying that matter, the research that has been done, in New Jersey and North Carolina, found that black drivers speed disproportionately. On the New Jersey Turnpike, for example, black drivers studied in 2001 sped at twice the rate of white drivers (with speeding defined as traveling at 15 mph or more above the posted limit) and traveled at the most reckless levels of speed even more disproportionately. Moreover, low-income car owners are less likely to update their vehicle registration and maintain required equipment. Are black drivers in Ferguson more likely to be poor? The New York Times itself says that “economic chasms” separate black and white neighborhoods there.
A proper traffic-stop study would also determine the demographics of the population on the roadways, which often differ radically from the surrounding residential areas and which change over the course of a day and week. The Special Litigation Section attempted none of this.
The report also seized on the fact that blacks made up 93 percent of arrests by Ferguson police officers. It is unclear whether “arrests” here refers to arrests following a traffic stop or arrests for all types of crime throughout the entire city. Assuming the latter, this figure, too, is meaningless without knowing the black and white crime rates. Blacks made up 60.5 percent of all murder arrests in Missouri in 2012 and 58 percent of all robbery arrests, though they are less than 12 percent of the state’s population. Such vast disparities are found in every city and state in the country; there is no reason to think that Ferguson is any different. (The voicemail box of the Ferguson Police Department’s press office was full and not accepting messages when I tried to find out.) New York City is typical: blacks are only 23 percent of the population but commit over 75 percent of all shootings in the city, as reported by the victims of and witnesses to those shootings; whites commit under 2 percent of all shootings, according to victims and witnesses, though they are 33 percent of the city’s population. Blacks commit 70 percent of all robberies; whites, 4 percent. The black-white crime disparity in New York would be even greater without New York’s large Hispanic population. Black and Hispanic shootings together account for 98 percent of all illegal gunfire. Ferguson has only a 1 percent Hispanic population, so the contrast between the white and black shares of crime is starker there.
Holder’s attorneys find damning the fact that 11 percent of black drivers were searched after a traffic stop from 2012 to 2014, but only 5 percent of white drivers were. Yet as the report itself notes, blacks are more likely to have outstanding warrants against them and are more likely to be arrested for an outstanding warrant. Given the higher rate of outstanding warrants, it is predictable that black drivers would be searched more often. Whites are slightly more likely to have contraband found on them after a search: 30 percent of searches of whites, but only 24 percent of searches of blacks, yielded contraband. The report says that this disparity exists “even after controlling for the type of search conducted, whether a search incident to arrest, a consent search, or a search predicated on reasonable suspicion,” but the report does not reveal how much of a disparity persisted in each type of search: automatic searches incident to an arrest should not be used to measure alleged police bias. The analysis also does not take into account differences in driver behavior following a stop that could increase an officer’s inclination to search. This minimal disparity in the contraband hit rate is the only piece of evidence in the report that could support a finding of disparate treatment, and it’s negligible evidence at that.
The press has also highlighted the following data as further proof of Ferguson police racism: blacks make up 95 percent of Manner of Walking in Roadway charges; 94 percent of Failure to Comply charges; 92 percent of Resisting Arrest charges; 92 percent of Peace Disturbance charges; and 89 percent of Failure to Obey charges. Ironically, Ferguson’s most famous resident displayed behavior that would plausibly fall under four of these five categories. A black couple driving on Canfield Drive minutes before the shooting had to swerve around Michael Brown and his friend, walking in the middle of the street, in order to avoid hitting them. “Why don’t they just get on the sidewalk?” the wife exclaimed. Another bystander told the FBI that when Wilson asked Brown to move out of the street, Brown refused and responded to the effect: “F—the police.” It is dubious that the black and white residents of Ferguson engage in such low-level lawlessness at identical rates, given widely documented differences in felony offending and the complaints about lawless street behavior that routinely emanate from inner-city communities. But even if the rates were identical, if officers are dispatched on 911 calls more frequently to Ferguson’s “disconnected” apartment complexes (DOJ’s term), they will witness more public-order offenses in that area of the city.
The Justice Department’s evidence for “intentional discrimination” is even thinner than its statistical analyses. The agency criticizes city officials who used the term “personal responsibility” to explain law-enforcement disparities among “certain segments” of the community. The phrase is code for “negative stereotypes about African Americans,” the federal lawyers believe. In reality, denouncing any invocation of “personal responsibility” as racist is itself code for liberal blindness to underclass culture.
DOJ’s alleged smoking gun is half a dozen racist jokes emailed by two police supervisors and a court clerk. While juvenile and offensive, the emails are far from establishing that the police department’s law-enforcement protocols are intentionally discriminatory.
Justice’s final salvo against Ferguson is the charge that its officials view traffic and misdemeanor enforcement as a revenue generator for the city (a claim that the New York Times also asserted in its editorial on the grand-jury decision). A revisionist history of the riots, hastily cobbled together after the collapse of the Brown execution myth, holds that they were triggered by compounding traffic fines as much as by the shooting. But if Ferguson uses traffic violations for revenue, so do the majority of municipalities across the country. DOJ does not come close to showing that the reason that the city wants to raise money from enforcement is to discriminate against blacks.
To be sure, Ferguson’s system of fees and warrants for failure to pay those fees or to show up in court—like identical systems throughout the country—needs reform to avoid any possibility of punishing people for being poor. Making community service more available for offenders who cannot afford their fines is a good idea.