Biden Administration Backs Bill That Would Force Cops to Stop Women in the Street for No Reason

The Biden administration is now supporting H.R. 1280, the George Floyd Justice in Policing Act, which among other things contains the “End Racial and Religious Profiling Act of 2021.” That part of the proposed law declares, “No law enforcement agent or law enforcement agency shall engage in racial profiling.” Who could be against that? Well, as is often the case with legislation, the devil is in the details. Hans Bader writes at Liberty Unyielding that there are two glaring problems with this prohibition, especially when you combine the two. The first defines in Section 312 how “racial profiling” is proven in court:

Proof that the routine or spontaneous investigatory activities of law enforcement agents in a jurisdiction have had a disparate impact on individuals with a particular characteristic described in section 302(6) shall constitute prima facie evidence of a violation of this part. (Emphasis added)

You read that right: “disparate impact” alone is enough to prove profiling. Because the statute doesn’t define “disparate impact,” it would presumably be read by the courts in the usual way, to mean any disparity in the rate of being stopped or investigated among different groups. (The statute defines “routine or spontaneous investigatory activities” to include “interviews, traffic stops, pedestrian stops, frisks and other types of body searches” and “data collection and analysis,” among other things). The statute says that this is “prima facie evidence,” which means it is enough to prove guilt, but allows the defendant to present a defense. What defense would be enough? The bill doesn’t say. The defense would apparently have to prove a negative — that there was no “relying, to any degree” on any of the prohibited characteristics set forth in Section 302(6)(A):

The term “racial profiling” means the practice of a law enforcement agent or agency relying, to any degree, on actual or perceived race, ethnicity, national origin, religion, gender, gender identity, or sexual orientation in selecting which individual to subject to routine or spontaneous investigatory activities or in deciding upon the scope and substance of law enforcement activity following the initial investigatory procedure, except when there is trustworthy information, relevant to the locality and timeframe, that links a person with a particular characteristic described in this paragraph to an identified criminal incident or scheme. (Emphasis added)

Proof is to be based on statistical records of each of these characteristics, and the bill in Sections 341–342 empowers the attorney general to impose data-collection requirements. Of course, proving a negative in court is not just hard, it’s expensive, and the law additionally allows profiling suits to be brought (by the federal government or any individual, in federal or state court) against individual cops and their supervisors as well as departments, and it saddles a losing defendant with the plaintiff’s legal fees, which only escalate the further a case gets into the facts. So there will be a powerful incentive to avoid disparate impact in stops even when there is a disparate rate of committing actual crimes. Simple math tells us what that means: more stops of innocent people in order to keep the stop rates even, or fewer stops of actual criminals.

This is bad policy when applied to race. But where it gets really crazy is that the list of prohibited disparities includes gender. Men — specifically, young men — commit a disproportionate amount of crime, especially violent crime, and this has been true in essentially every known civilization at every time in human history. (Today, 92 percent of the U.S. prison population is male, a colossal “disparity” for a group that is just under half of the population). As Bader notes, this is true of traffic offenses as well, which is why men pay higher auto-insurance premiums. There is simply no way to get around this elementary reality, but denying elementary reality is all the fashion among Democrats these days. Unless police are going to abandon their jobs entirely, the only way to have a non-disparate impact on men is to drastically increase the number of stops of women. Then again, doing this to avoid running afoul of Section 312 cannot be done without also violating Section 302(6)(A) by targeting women.

This bill gets sillier still: notice that the list of prohibited characteristics includes “national origin,” and the list of investigations includes “Immigration-related workplace investigations.” In other words, read literally, this would prohibit immigration authorities from considering whether individuals are native-born Americans or not in determining whether they might be in the country illegally. In the immigration context, national origin is an element of the offense.

It is probably pointless to suggest that Democrats should pay more attention to what is in their own bills, but that is only more reason why the rest of us should.