Targeting the Police
The Holder Justice Department declares open season on big city police departments
Jan 31, 2011, Vol. 16, No. 19 • By HEATHER MAC DONALD
In 2000, a deputy attorney general in the Clinton administration slapped the Los Angeles Police Department with federal oversight. A 1994 law gives the Justice Department the authority to seek control of police agencies that have engaged in a “pattern or practice” of constitutional violations. Justice’s attorneys never uncovered any systemic constitutional abuses in the LAPD as required by the 1994 law, despite having commandeered hundreds of thousands of documents (and having lost 10 boxes of sensitive records). Nevertheless, for the next decade the LAPD would operate under a draconian federal “consent decree”—a nominally consensual agreement overseen by a court—governing nearly every aspect of its operations, at a cost of over $100 million in contracting fees and in manpower diverted to mindless paper-pushing.
Get ready for hours of paperwork: an anti-gang sweep in L.A. County.
The deputy attorney general who forced federal control on the LAPD in 2000 was none other than Eric Holder, who now presides over a Justice Department determined to make the Los Angeles consent decree the model for its future oversight of police departments. The current assistant attorney general for civil rights, Thomas Perez, told a conference of police chiefs in June 2010 that the Justice Department would be pursuing “pattern or practice” takeovers of police departments much more aggressively than the Bush administration, eschewing negotiation in favor of hardball tactics seeking immediate federal control. Perez has hired nine additional attorneys to beef up his division’s search for alleged police agency racism and to sue agencies that don’t capitulate to federal demands.
To see what lies ahead for the nation’s police, one need look no further than the Los Angeles Police Department’s past and present travails with the Justice Department.
The LAPD consent decree was a power grab from day one. The first thing DOJ demanded as part of its new authority over the LAPD was the collection of racial information on every stop the L.A. officers make—even though the corruption scandal which provided the pretext for the consent decree had nothing to do with race or alleged “racial profiling.”
The 180-clause decree mired the LAPD’s operations in red tape, apparently on the theory that if cops are left to actually fight crime, rather than writing and reviewing reports, they will run amok violating people’s rights. Today, an L.A. officer can hardly nod at a civilian without filling out numerous forms documenting his salutation for later review. If he returns fire at a gangbanger, his use of force will be more intensely investigated for wrong-doing than the criminal shooting that provoked the officer’s defensive reaction in the first place.
The LAPD spent approximately $40 million trying to comply with the decree in its first year and close to $50 million annually for several years thereafter. It pulled 350 officers off the street to meet the decree’s mountainous paperwork requirements. Nevertheless, it struggled to meet the fanatical standards for compliance imposed by the federal monitor overseeing the decree, who demanded that virtually 100 percent of the arbitrary deadlines for filing reports be met on time, regardless of whether the supervisors who missed their deadline by a few days were otherwise occupied with a triple homicide investigation. In 2006, the federal court to which the monitor reported deemed the department out of compliance with the decree and extended its term. In 2009, the court ended federal control on many of the decree’s provisions, yet continued federal oversight on issues relating to “biased policing,” among other matters, until January 2011. And now the Justice Department, facing the potential final expiration of the consent decree this month, has made its most preposterous charge against the LAPD yet, in a desperate last-minute bid to retain its power over the force.
According to DOJ’s civil rights division, the LAPD does not investigate racial profiling complaints with sufficient intensity. The department seems to tolerate a “culture that is inimical to race-neutral policing,” say the federal attorneys. These accusations are nothing short of delusional. The LAPD is arguably the most professional, community-oriented police agency in the country, having been led for most of the last decade by modern policing’s premier innovator, William Bratton. Moreover, it investigates every racial profiling allegation with an obsessive thoroughness that stands in stark contrast to the frivolity of most profiling accusations. There is no racial profiling complaint so patently fabricated that the department won’t subject to days of painstaking investigation through multiple chains of command. A complainant can outright admit making up the profiling charge in retaliation for being arrested, and the LAPD’s special profiling investigation body, the Constitutional Policing Unit, will continue diligently poring over his complaint as if it had been made in good faith. After the department logs a whopping average of 100 hours on each complaint, devoting more resources to these knee-jerk accusations than to any other kind of alleged officer misbehavior, the LAPD’s civilian inspector general will audit the department’s work with a two-part, 60-question matrix, subjecting claims made by arresting officers to a reflexive skepticism unmoored from reality. The goal of this Byzantine process? To find any possible way not to dismiss complaints as unsubstantiated.
A recent profiling allegation and its disposition are typical. A driver who had been cited for tinted windows denied in his racial profiling complaint that his windows were tinted and claimed that he was only stopped because he was black. He said that he was detained for an excessive 45 minutes. The arresting officers estimated that the stop lasted 15 minutes; electronic records revealed that it lasted a reasonable 18 minutes. Department personnel interviewed the complainant twice; the arresting officers were closely interrogated; and the Constitutional Policing Unit canvassed local businesses around the stop for video of the interaction. The CPU then made an appointment to photo-graph the driver’s car to confirm that his windows were not tinted; the driver failed to appear at the appointment and later called the LAPD to say that he wanted no further contact from the department on his profiling complaint.
Leaving aside the devastating hole that the complainant blew in his own credibility by withholding his car, the complaint was logically problematic to begin with. If the driver’s windows were tinted, the cops could not have seen his race, especially since the stop occurred at midnight. Indeed, the complainant himself reported that he had to keep his window rolled down during the stop so that the officer could see into the vehicle. But if the windows were not tinted, it strains credulity that an officer would cite a driver for a violation that could be so easily disproven simply by presenting the car.
Nevertheless, the LAPD’s inspector general Nicole Bershon, after reviewing the voluminous case history, concluded that the accused officer should not be cleared of the profiling charge and that the department should reopen the investigation—though there was nothing more to investigate. Because the car’s windows had not been inspected, she said, the officer’s claim that he could not see the driver’s race before stopping him could not be adjudicated. Bershon, however, rehabilitated the driver’s credibility on a wholly speculative theory: Because the sergeant who logged the profiling charge asked the driver in passing if he was making the complaint to avoid paying the tinting fine, the complainant lost confidence in the process, Bershon hypothesizes, and as a result went AWOL with his car. Of course, the complainant had already shown enough confidence in the process to sit for two interviews. It was only when it came time to present his car that his painful disillusionment, in Bershon’s imaginary scenario, manifested itself.
Predictably, Bershon criticizes the intake sergeant for questioning the complainant’s motives, however flippantly. In an ideal world, to be sure, no police officer would ever express the slightest personal opinion in his interactions with civilians. But a station house is not an ideal world; it is peopled with human beings whose daily exposure to the full, sorry range of human behavior breeds in them a certain degree of cynicism. Regrettably, that cynicism occasionally breaks through the surface. The notion of cutting officers any slack for such failings, which, in light of their public service, are in any case relatively minor, is of course out of the question.
It is this insanely credulous and costly process for investigating racial profiling complaints that the Obama Justice Department claims to find insufficiently rigorous, in a disturbing harbinger for other police departments. The most damning flaw of the LAPD’s elaborate anti-profiling apparatus, from DOJ’s perspective, is that it corroborates almost none of the already minuscule number of racial profiling complaints that the department receives each year. (In 2009, the department received 219 racial profiling complaints out of nearly 200,000 arrests and over 580,000 citations.) To the Washington attorneys, the paucity of confirmed complaints proves that the investigative process is inadequate, if not in bad faith, since it is a given to the Justice Department staff that the LAPD, like every other police department, routinely violates people’s rights. The possibility that the vast majority of Los Angeles officers are operating within the law is simply not acceptable.
Such a preordained conclusion is not surprising, since the career attorneys who investigate police departments for constitutional violations are possibly the most left-wing members of the standing federal bureaucracy. They know, without any felt need for prolonged exposure to police work, that contemporary policing is shot through with bias. In 2002, for example, a career attorney in the policing litigation section tried to bury a rigorously designed study that showed that black drivers on the New Jersey Turnpike speed at twice the rate of white drivers, a finding of great relevance to DOJ’s then-pending charge that the higher stop rate of black drivers on the turnpike was the exclusive result of biased policing by New Jersey State Troopers.
The speeding study was eventually leaked to the press, and the attorney who had tried so hard to suppress it—to the point of hiding its conclusions from his political bosses—resigned. The career staffers who remained, however, were just as committed to the idea that racial disparities in the rate of contact between the police and civilians must reflect officer misbehavior towards minorities, rather than varying propensities for law breaking on the part of different racial groups. During the Bush administration, political appointees to the civil rights division reined in the staff’s eagerness to investigate police departments for racial profiling, since the profiling studies routinely served up by the ACLU and other activist organizations were based on laughably bogus methodology. Now that those appointees have left the Justice Department, however, the staff attorneys in the policing section are back in control. And the current assistant attorney general for civil rights, after declaring that civil rights advocacy groups will once again function as the “eyes and ears” of the department, has publicly embraced the advocates’ specious methodology for measuring biased law enforcement actions.
Civil rights activists invariably use population data as the benchmark for police activity—measuring the rate of police stops for various racial groups, say, against the proportion of those groups in the local population. If the stop rate for a particular group is higher than its population ratio, the activists charge bias. Such a population benchmark could only be remotely appropriate, however, if racial crime rates were equal. They are not. In Los Angeles, for example, blacks commit 42 percent of all robberies and 34 percent of all felonies, though they are 10 percent of the city’s population. Whites commit 5 percent of all robberies and 13 percent of all felonies, though they are 29.4 percent of the city’s population. Such crime disparities—which are repeated in every big city—mean that the police cannot focus their resources where crime victims most need them without disproportionate enforcement activity in minority neighborhoods, but it is crime, not race, which determines such police deployment.
This September, Assistant Attorney General for Civil Rights Perez announced a litigation campaign against school districts for so-called “disciplinary profiling”—disciplining black students at a higher rate than white students. He used student population ratios as the benchmark for appropriate rates of student discipline. “The numbers tell the story,” he said. “While blacks make up 17 percent of the student population, they are 37 percent of the students penalized by out-of-school suspensions and 43 percent of the students expelled.”
Actually, those numbers don’t tell the story. The real story behind black student discipline rates is higher levels of violence and misbehavior in school, a reality Perez ignored completely. DOJ’s future assessment of police stops and other enforcement actions will likewise inevitably ignore higher rates of black crime.
DOJ’s assertion that the culture of the LAPD is “inimical to race-neutral policing” exploits this same blindness to the facts of crime. The Justice Department has seized on a single exchange between two cops who were caught on tape discussing a profiling complaint brought against a fellow officer. One says: “So what?” The other responds that he “couldn’t do [his] job without racially profiling.” To the feds, this exchange can have only one meaning: These and other cops are randomly hauling over blacks and Hispanics to harass them. But if the officers were involved in gang enforcement, as almost any officer patrolling in the city’s southern and eastern sections will likely at some point be, attention to a suspect’s race and ethnicity is unavoidable, since L.A.’s gangs are obsessively self-defined by skin color. Until Los Angeles gangs give up their fealty to racial identity, they can expect police officers trying to protect the public from their lethal activities to take their race and ethnicity into account in identifying them.
The greatest beneficiary of the coming campaign against police departments will be the police monitoring business. Police monitors, paid for by the locality but reporting to a federal court, range from attorneys to former police officials; they are ostensibly jointly selected by the locality and the Justice Department, but repeat business depends on not antagonizing their DOJ backers. The industry has already perfected such fee-generating practices as billing eight hours to summarize a one-hour meeting. Detroit’s federal monitor collected from $120,000 to $193,000 a month for her services, for a cool $13 million, which Detroit is now trying to recover after discovering that she consorted with the mayor during her tenure as monitor. The New Jersey State Police spent $36 million to build the racial profiling monitoring system demanded by the Clinton Justice Department and $70 million running it. Oakland’s federal monitor pulled in nearly $2 million for her two most recent years overseeing the financially strapped department, which now allocates 35 officers for internal affairs investigations, but only 10 for homicides. Oakland’s monitor previously worked for DOJ’s pattern or practice section and has just been rehired there, where she can be expected to impose similar staffing priorities on other departments. Now that Assistant Attorney General Perez intends to revive the L.A. model of indefinitely renewable, rigidly prescriptive consent decrees (which Bush officials had tried to streamline), the monitoring business can expect to clean up even further.
There are police departments that could benefit from expert advice from actual police professionals on such issues as use of force, but these are unlikely to draw the attention of the Justice Department. Five-man departments in rural areas where the police chief is the mayor’s brother-in-law may well have developed questionable habits, such as walloping suspects who talk back to their arresting officers. Perez has said that he wants to pursue “high-impact” cases, however—meaning big-city departments with a national media presence, even if those departments are already permeated by layers of internal and external safeguards against abuse. DOJ’s attorneys are homing in on the New York Police Department, for example, having recently convened a closed-door session with the city’s anti-cop advocates to discuss the multicultural NYPD’s alleged failings toward immigrant populations.
If the Justice Department were serious about police reform, it would publish its standards for opening a pattern or practice investigation so that police agencies could take preventive action on their own. It has never done so, however, because it has no standards for opening an investigation; the initial recommendation to do so is based on the whims of the staffers, such as: “I feel like going to Seattle and my Google sweep picked up a few articles on the police there” or “My buddy at the NAACP Legal Defense and Educational Fund called me and asked us to open up an investigation in Des Moines.” Once the federal attorneys show up in town, for what can be a multiyear fishing expedition through thousands of documents, they rarely disclose to the police department what exactly they are looking for. Meanwhile, the local press engages in a frenzy of speculation about which racist practices the feds are investigating and pressures the department to cave in to federal control.
While DOJ pursues the phantom of widespread police racism, the real abuse in minority communities gets no attention from the civil rights division. In Los Angeles on Halloween 2010, five-year-old Aaron Shannon Jr. was showing off his Spiderman costume in his family’s South-Central backyard when he was fatally shot by two young thugs from the Kitchen Crips gang. Aaron was randomly selected in retaliation for an earlier gang shooting; his family had no known gang ties. DOJ’s pattern or practice attorneys had nothing to say about such grotesque violence even as they were rebuking the LAPD for its alleged inadequacies investigating profiling complaints. And if the LAPD had stopped known gang members around the Shannon home after the Halloween homicide in order to seek intelligence about the shooting, every stop the officers made would have been tallied against the department in DOJ’s racial profiling calculus, simply because the Kitchen Crips and their rivals are black.
Though reform police chiefs like William Bratton and the NYPD’s Ray Kelly have brought crime down to near record lows over the last decade and a half, violence continues to afflict minority communities at astronomically higher levels than white communities. For the last two decades, the public discourse around policing has focused exclusively on alleged police racism to avoid talking about a far more serious and pervasive problem: black crime. If a fraction of the public attention that has been devoted to flushing out supposed police bias had been devoted to stigmatizing criminals and revalorizing the two-parent family, the association between black communities and heavy police presence might have been broken. Instead, the Obama Justice Department promises a further retreat from honesty.
Heather Mac Donald is a contributing editor to City Journal and the author of Are Cops Racist?
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