Law & the Courts

Police ‘Reform’ and the Making of a Racism Narrative

Demonstrators hold a Black Lives Matter banner during a protest against racial inequality in front of the Grand Army Plaza in Brooklyn, N.Y., June 7, 2020. (Eduardo Munoz/Reuters)
This narrative is driving the nation to ruin.

Have you seen that mountain of evidence that Derek Chauvin is a racist? Me neither.

In that regard, I’m like the Wall Street Journal’s fearlessly fact-driven Jason Riley. Did some shred of racial animus motivate the since-fired Minneapolis police officer’s killing of George Floyd? For the moment, we have no proof of that — just a racialist narrative built on the happenstance (no reason to believe it’s more than that right now) that Chauvin is white and Floyd was black.

These days, alas, mere happenstance is enough to tear this nation asunder.

As an old investigator, I am intrigued by the fact that Minnesota attorney general Keith Ellison has refused to disclose police body-cam video of the moments leading up to Chauvin’s disturbing neck hold. Ditto the fact — highlighted in my analyses of the charges filed against the arresting officers (here and here) — that the state’s minute-by-minute recitation of probable cause omits whatever went on between Floyd and police inside the squad-car. Surely, if they helped the prosecution’s police-brutality allegations, those gaps in the complaint would have been filled.

Similarly, the fact that Minnesota police procedures permitted the use of neck holds for suspects resisting arrest has disappeared from the reporting. No chatter permitted, either, about the facts that Floyd (a) had a significant criminal record (though no new charges in recent years), (b) was suspected of passing a small amount of counterfeit money at the time of his arrest, and (c) was high on fentanyl and methamphetamine — a toxic combination whose ingestion was particularly dangerous for a person with his heart conditions.

Silence on these matters is partially explained by the admirably widespread desire not to besmirch a tragic victim, as well as the Left’s more-narrow determination to martyr Floyd for purposes of their police-racism narrative. The subject is also verboten, though, because the police were inconveniently recorded discussing their fear that Floyd might be experiencing excited-delirium syndrome. When police suspect that dangerous condition, their training calls for restraining the arrestee until emergency medical personnel arrive.

I’ve expressed my concern that the case against the former Minneapolis police is both overcharged and undercharged. Others have taken the overcharging argument further than I have — and persuasively so (see this thoughtful, comprehensive analysis by Gavrilo David). None of this means the prosecution of the now-fired cops is illegitimate. To the contrary, it underscores the wisdom of the original charges, filed before the notoriously demagogic Ellison entered the fray. In them, prosecutors took pains to include a manslaughter charge along with depraved indifference murder. That is, the police were not trying to kill this man. His death, to which his own poor judgment contributed, resulted from police negligence, possibly severe enough to rise to recklessness. But to this moment, there is no reason to believe his death was intentional, much less a modern-day “lynching” motivated by racial animus.

Yet the racism narrative is driving the nation to ruin.

The defamation that police are institutionally racist because America is indelibly racist has opened a potentially unbridgeable chasm. It is abetted by two national character flaws. The first is our gravitation to political leaders capable only of making matters worse by their spitefulness and Manichean posturing.

The second is our increasingly manifest conviction that we are not worth defending. We seem convinced that there is no positive case to be made for a society that idealizes liberty and the equal dignity of every person. For a society that does not pretend to be perfect, but that strives to be better. A society that confesses its sin and works toward redemption: spilling its blood to end slavery, fighting to end de jure racism, and rejecting racial discrimination as a socially acceptable attitude.

If we do not believe we are worth preserving — humbled by our flaws, yes, but duly proud of our virtues and our historic accomplishments — we will not be preserved.

This week’s farce on Capitol Hill was not a hopeful sign.

I admire Senator Tim Scott. His life story, recently told in moving detail by the WSJs Tunku Varadarajan, is an inspiration. Yet his police-reform legislation was far from inspirational. Sure, it should have been debated. Democrats are cynical — surprise! — to block its consideration, the better to keep riding the racism wave they expect to make an anti-Trump tsunami by November (and, as usual, getting no small amount of help from the president). But the best you can say for Scott’s proposal was that it would do no real harm.

Republicans had no intention of pushing back against the slander of institutional racism. They have no stomach for trumpeting the 30-year revolution in policing that, by dramatically driving down homicide and violent crime, has saved thousands of black lives. They would not rouse themselves to a defense of police forces that, reflective of their communities, boast high percentages of African-American officers and, in many major cities, of African-American leadership. No case was made that those black lives matter, too.

Instead, Republicans accept the premise that the nation’s police forces are infected with racism and in desperate need of reform. The GOP won’t dictate to the states, as a bill passed by House Democrats’ would. But Republicans would use federal funding as the prod for state data-gathering on police uses of force. Given that policing is a state responsibility, and that the use of force is a necessary component of it, the only rational purpose of this federal scrutiny is the conceit that police violence is triggered by racism, not by the imperative of countering aggressive criminal behavior.

You might think Congress would want to test that proposition before hamstringing police in a way that will inevitably endanger American communities. Nope.

The Republican cravenness makes it that much easier for Democrats to go all the way with the narrative. The Democratic legislation has no chance of being enacted in law — at least not until the Democrats retake the Senate and do away with the filibuster so President Biden can sign their grand designs into law. But “reforming” police by legislation is not the objective.

The point is for the Biden Justice Department to pick up where the Obama Justice Department left off.

As I pointed out at the time, the Obama Justice Department’s Civil Rights Division made a habit of slipstreaming behind race-tinged controversies, commencing investigations of state and local police departments. They would file lawsuits under a Clinton-era law that permits the Justice Department to sue municipalities based on any alleged “pattern or practice” that deprives people of their federal rights. States, cities, and towns cannot afford to go toe-to-toe with the Justice Department and its $30 billion annual budget. So they would settle by agreeing to consent decrees in which they’d be obliged to conform to Obama-prescribed policing — in with police as social workers whose community “legitimacy” hinges on confessing their “implicit bias”; out with “broken windows.”

The headline grabbers in the Democrats’ police-reform package were bans on chokeholds and no-knock warrants (the federal jurisdiction for such mandates remains mysterious), as well as the gutting of “qualified immunity,” which would make it easier to sue police. Less well noticed were the legislation’s data-gathering provisions. They are similar to Scott’s, except Democrats want more information about forcible police encounters, and they want that information broken down by race.

The object of the game is patent. Using the hocus-pocus of “disparate impact” theory, Democrats will argue that the disproportionately high percentage of black males in forcible police incidents is conclusive evidence of racism. Such factors as disproportionately high incidence of criminal behavior, and the race (often black) of the responding police officers will be ignored (the individual’s race makes no difference, you see, if the institution is racist — indeed, incorrigibly so). This distorted number crunching will make it even more prohibitive for states and their municipalities to challenge Justice Department lawsuits. They will concede and sign on the dotted line: “reform” by consent decree.

That is how you project racism without proving racism. It is not hard for the side that relishes the battle, especially when the other side’s specialty is preemptive surrender.

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