The Corner

The Ferguson Report and the Right

The shooting of two Ferguson police officers on Thursday is despicable. I believe that people who call for violence against cops are not morally blameless of the violence that ensues; I also believe that the people who actually commit such acts are fully accountable individuals whose milieu does not diminish their guilt. Blame is not zero-sum.

But I think, finally, that Milwaukee sheriff David Clarke is wrong, and contemptibly so, to blame the Justice Department’s report on Ferguson for having “fueled this cop hatred, this anti-police sentiment, that’s going on in America.” This sort of view seems to be widely held on the right, with many people dismissing the Ferguson report’s criticisms as spurious. Having now read the report myself, I think, to the contrary, that anyone who cares about protecting citizens from abusive and arbitrary officialdom should — whatever else he may think of Eric Holder’s tenure as attorney general — be grateful that the report exists.

Here are the main points I’ve taken away from it:

Ferguson police officers have routinely violated constitutional rights and engaged in conduct that is, by any reasonable standard, appalling.

If you doubt me, read the report; if you don’t have time, head over to The Atlantic’s website and read Conor Friedersdorf’s compilation of excerpts from it.

By way of summary: The report establishes that Ferguson police officers “violate the Fourth Amendment in stopping people without reasonable suspicion, arresting them without probable cause, and using unreasonable force. Officers frequently infringe on residents’ First Amendment rights, interfering with their right to record police activities and making enforcement decisions based on the content of individuals’ expression.” Each of these claims is supported by descriptions of multiple violations. Here is one such; many others are equally outrageous:

In the summer of 2012, an officer detained a 32-year-old African-American man who was sitting in his car cooling off after playing basketball. The officer arguably had grounds to stop and question the man, since his windows appeared more deeply tinted than permitted under Ferguson’s code. Without cause, the officer went on to accuse the man of being a pedophile, prohibit the man from using his cell phone, order the man out of his car for a pat-down despite having no reason to believe he was armed, and ask to search his car. When the man refused, citing his constitutional rights, the officer reportedly pointed a gun at his head, and arrested him. The officer charged the man with eight different counts, including making a false declaration for initially providing the short form of his first name (e.g., “Mike” instead of “Michael”) and an address that, although legitimate, differed from the one on his license. The officer also charged the man both with having an expired operator’s license, and with having no operator’s license in his possession. The man told us he lost his job as a contractor with the federal government as a result of the charges.

Other described incidents include a case in which an officer claimed to be arresting a man because he did not like what the man’s wife was saying — “You’re going to jail because your wife keeps running her mouth” — and the stunning of people with electronic control weapons, presumably Tasers, even though they posed no physical threat.

The City of Ferguson has been running a kind of racket to extract every dollar it can from citizens who violate — or are, in some cases, falsely accused of violating — minor traffic laws and city ordinances.

This seems to have been a point of pride among city officials, who, says the report, “have extolled that the Ferguson preset fine schedule establishes fines that are ‘at or near the top of the list’ compared with other municipalities across a large number of offenses.”

In addition, the municipal court issues arrest warrants “not on the basis of public safety needs, but rather as a routine response to missed court appearances and required fine payments. In 2013 alone, the court issued over 9,000 warrants on cases stemming in large part from minor violations such as parking infractions, traffic tickets, or housing code violations.”

There is no good reason anyone should part with $531 for having “high grass and weeds” on his property. There is no good reason anyone should go to jail over a parking ticket, ever, anywhere (the practice is lamentably widespread).

For further discussion, see Ian Tuttle’s recent NRO piece.

Despite their lord-among-the-vassals attitude toward citizens, Ferguson officials have scrupled not to pull strings for their friends and family members.

“In November 2011,” for example, “a court clerk received a request from a friend ‘to fix a parking ticket’ received by the friend’s coworker’s wife. After the ticket was faxed to the clerk, she replied: ‘It’s gone baby!’”

The evidence of racial bias is more robust than the Right has acknowledged.

It’s true that disparate impact is not proof of racism. But the standard conservative argument about disparate impact — i.e., that black people are stopped, arrested, incarcerated, etc. at higher rates than the general population because of racial differences in crime rates — simply does not refute some of the statistical evidence in the report.

For example, black drivers were twice as likely to receive a citation during a traffic stop than white drivers — after regression analysis was used to control for, among other things, “the stated reason the stop was initiated.” You can’t easily explain this disparity away by suggesting that black people were committing more traffic violations: They were more likely to get tickets than were white drivers who got pulled over for the very same reason. (You could, I suppose, speculate that black drivers were more likely to commit multiple infractions only one of which was documented as the reason for the stop. I know of no data suggesting that this is true, and the speculation seems a little desperate.)

Consider also that,

from October 2012 to October 2014, 11% of stopped black drivers were searched, whereas only 5% of stopped white drivers were searched.

Despite being searched at higher rates, African Americans are 26% less likely to have contraband found on them than whites: 24% of searches of African Americans resulted in a contraband finding, whereas 30% of searches of whites resulted in a contraband finding. This disparity exists even after controlling for type of search conducted, whether a search incident to arrest, a consent search, or a search predicated on reasonable suspicion.

You could try — again, speculatively and a little desperately — to defend the police by suggesting, for example, that black people were more likely than whites to act in a way that established reasonable suspicion that they possessed contraband even though they were less likely than whites in fact to possess it. Or you could conclude, as the report does, that “the lower rate at which officers find contraband when searching African Americans indicates either that officers’ suspicion of criminal wrongdoing is less likely to be accurate when interacting with African Americans” — and that this inaccuracy cannot be explained in terms of racial differences in conduct during traffic stops — “or that officers are more likely to search African Americans without any suspicion of criminal wrongdoing. Either explanation suggests bias, whether explicit or implicit.” (Incidentally, studies of searches during traffic stops in Arizona, West Virginia, Minnesota, Illinois, and Texas have found similar disparities. Details can be found in the report available for download here.)

Consider further that,

with respect to speeding offenses for all roads, African Americans account for 72% of citations based on radar or laser, but 80% of citations based on other or unspecified methods. Thus, as evaluated by radar, African Americans violate the law at lower rates than as evaluated by [Ferguson Police Department] officers. Indeed, controlling for other factors, the disparity in speeding tickets between African Americans and non–African Americans is 48 percent larger when citations are issued not on the basis of radar or laser, but by some other method, such as the officer’s own visual assessment. This difference is statistically significant.

This disparity suggests that racial bias influences officers’ issuance of citations for infractions not measured by radar or laser: If the officers were acting impartially, any difference in the rates at which black drivers and white drivers speed would presumably turn up to approximately the same degree in both categories of ticket — those based on radar or laser and those based on visual assessment. (The only alternative explanation I can imagine — other than a highly improbable amount of statistical noise — is that (a) there are certain subcategories of speeding infraction that are more likely to be cited based on visual observation, and (b) black people are more likely to commit these infractions than other types of speeding infraction. Possible in principle? Yes. Speculative and a little desperate? Yes.)

Finally, I don’t think the racist e-mails sent among court and law-enforcement officials should be dismissed as irrelevant to judgments about institutional racism. Obviously the actions of individuals do not always represent the institutions to which they belong. But equally obviously, we cannot simply assume, as conservative writers so often do, that such incidents point to nothing beyond themselves. It is telling that the investigators did not “see a single instance in which a police or court recipient of such an email asked that the sender refrain from sending such emails, or any indication that these emails were reported as inappropriate. Instead, the emails were usually forwarded along to others.”

The Right should be raising a cry over the abuses documented in the Ferguson report.

That would be true even if we entirely dismissed the possibility of racial bias. Conservatives fancy themselves zealous protectors of constitutional rights. They are suspicious of government power. They are hostile to bureaucratic corruption, however petty. And they oppose the confiscation of wealth without compelling reasons. The Ferguson report gives them much to object to in every one of these categories.

It is remarkable that many on the right have instead dismissed the report without even reading it — as if psychologizing Eric Holder or cross-referencing generic arguments about disparate impact and crime rates obviated the need to reckon with the Justice Department’s specific findings.

It seems to me that a kind of team-sport mentality has prevailed. Conservatives do not like sweeping denunciations of the entire criminal justice system as racist, and they especially do not like violent protests, looting, and attacks on policemen — all very rightly. But from there, too many conservatives have come to see any criticism of police conduct, or any allegation of racism, as if it were a play by the opposing team. They duly boo. Instead, they should reflect that all that is correct in their defense of the police is compromised by the extension of that defense to anything unworthy of it.


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