The 'Ferguson Effect' (Part 2): Obama's Unprecedented Assault on Law Enforcement

This column by ACRU Policy Board member Hans von Spakovsky and Brad Schlozman was published May 31, 2016 by Conservative Review.

As the sun sets on President Obama’s tenure, it seems his administration is taking every last opportunity to make its mark on our culture. The Department of Justice is not at all bashful about overreaching well beyond its authority and handicapping local police forces at the expense of state sovereignty and community safety.

Conservative Review would like to present a two-part in-depth series from legal experts Hans von Spakovsky and Brad Schlozman that chronicles the administration’s unprecedented assault on local law enforcement. The DOJ’s quest exploits civil rights to travel far outside its proscribed jurisdiction. It is the worst sort of overcorrection to the media’s sensational coverage of police practices and racial tensions. And we are only just beginning to realize the consequences for society at large.

Legal Deficiencies in DOJ’s Investigation of Ferguson Police Department

A careful review of the “findings letter” that the Civil Rights Division’s SLS issued following its investigation of the Ferguson Police Department demonstrates emphatically that many of the cited examples of unconstitutional policing the SLS used to support its “pattern or practice” lawsuit wither under scrutiny. In fact, according to Peter Kirsanow, a member of the U.S. Commission on Civil Rights, the letter was “so replete with conclusions unsupported by facts, so lacking in basic methodological rigor,” that it “is an embarrassment.”

SLS claims there was a “pattern and practice” of unconstitutional behavior because “African Americans account for 85 percent of vehicle stops, 90 percent of citations, and 93 percent of arrests made by” Ferguson police officers, despite the city being only 67 percent black. Yet this totally ignores the fact that numerous studies, including data from DOJ itself, demonstrate that blacks commit crimes and routine traffic violations at a much higher rate than whites. Other than this statistical disparity that is easily explained by such higher crime rates, SLS is unable to point to specific, intentional conduct and discriminatory policies promulgated by the city that are causing any unconstitutional policing. In other words, DOJ’s conclusions are premised on nothing more than guilt by political correctness.

In another example, SLS complains about an officer who broke up “an altercation between two minors and sent them back to their homes.” The officer told one of the minors to stay in her home and not return to the other minor’s house. But the two minors got into a fight again outside the first minor’s house, and this time the same officer arrested them both for a “failure to comply” with his earlier order.

What the officer did seems perfectly reasonable. He didn’t arrest the minors the first time he was called to the scene; instead, he gave them a chance to cool off and not get arrested. But what may seem like common sense to us is not common sense to SLS. No, the report faults the officer for arresting the minors without probable cause. That is one of the incidents that constitutes a “pattern or practice” of violating the Fourth Amendment. Rest assured, if these sorts of allegations were held up to scrutiny — say, before a jury — many would be quickly rejected.

SLS also complained that Ferguson was too focused on collecting revenue through its court system. As much as city residents may not like that, and while most would probably say that the city’s law enforcement practices should be shaped by public safety need and not revenue generation, using traffic violations or “aggressively enforce[ing] the municipal code” — as SLS complained — is not a “pattern or practice” of unconstitutional policing or intentional racial discrimination.

On the same day the SLS issued its report on the supposed “pattern or practice” of unconstitutional behavior by the Ferguson Police Department, a different part of the Civil Rights Division (the Criminal Section) issued a far-less publicized report completely clearing former Ferguson police officer Darren Wilson in the shooting of Michael Brown. It would have been impossible for the Criminal Section to come to any contrary conclusion, given the overwhelming evidence uncovered by the FBI and a local grand jury that proved the original storyline about Brown peddled by the media and certain racial agitators was a total fabrication conjured up by dishonest witnesses who lied to the police and reporters.

Given the enormous pressure on the Justice Department by advocacy groups, the media, and the political allies of the administration, it is not difficult to imagine that there may have been political motivations behind the SLS report on the Ferguson Police Department as a whole. The weakness of the report and the scant evidence supporting its findings may well have been driven by a desire to “get” Ferguson in some way and placate anti-police and civil rights organizations in the wake of Wilson’s exoneration.

The City of Baltimore, which is awaiting the results of a similar investigation by SLS, can expect the same treatment. As Paul Mirengoff points out, in a police department that has had mass resignations while crime in the city has skyrocketed, the Justice Department’s investigation “seems virtually guaranteed to destroy whatever is left of department morale.” The Obama Justice Department “can be expected [to] promote the twin goals of grandstanding and upholding a leftist narrative about the police at the expense of fair play for those who try to protect Baltimore’s residents.”

Capitulation to the Department of Justice Comes at a Steep Price

Jurisdictions that don’t want to find themselves in the position of Ferguson — teetering on the verge of bankruptcy, awash in escalated violent crime, and surrendering vast amounts of precious local sovereignty in the name of short-term political expediency — must understand that there is a steep price to pay for complete acquiescence to the Department of Justice when the Civil Rights Division comes after their law enforcement agencies. As the Washington Post and Frontline pointed out in a comprehensive piece last November, consent decrees hoisted on local law enforcement agencies during the Obama administration virtually never end by the targeted completion date and nearly always cost exponentially more than anyone envisioned. The article noted that “in 13 of the police departments for which budget data was available, costs are expected to surpass $600 million, expenses largely passed on to local taxpayers.”

In addition to mandating standards that often far exceed anything compelled by the Constitution, a big problem with these consent decrees is that the monitors who oversee them are frequently financially incentivized to take aggressive positions towards the targeted police department and prolong federal oversight. These monitors are afforded broad latitude by the courts, of course, but if they get cross-wise with their ultimate patrons — the Civil Rights Division bureaucrats who were responsible for their appointment — their lucrative work may soon dry up. And lucrative it is. The Washington Post/Frontline exposé, for example, cited the fees paid to the monitor overseeing a consent decree with the Puerto Rico Police Department. His annual tab: approximately $1.5 million! And he claims “it is by far the cheapest consent decree budget in the entire nation.”

The point here is not that all monitors are biased or unfair. The fundamental takeaway, which far too few jurisdictions appreciate, is that the promise of a pat on the back at a press conference for agreeing to a settlement agreement proposed by the Justice Department, or the glimmer of temporary relief from media criticism and liberal advocacy group attacks, is no reason for a local government to jeopardize its fiscal sanity, compromise the safety of the public, and jettison its sovereignty. Savoring the crumbs of praise may seem enriching, but in the end, it’s all empty calories.

States and municipalities need to recognize that, notwithstanding all the bluster and bellicose rhetoric from the Justice Department leadership and many leftist civil rights organizations, principled resistance to Civil Rights Division investigations is not tantamount to an opposition to reform or an approval of discriminatory conduct. It is merely an acknowledgement that the Constitution does not entrust the federal government with the responsibility of local policing or overseeing local law enforcement agencies.

In the face of actual, demonstrated abuses by those local agencies, officials in Washington, D.C. may be empowered to impose reforms designed to ensure that minimum constitutional standards are being met, but the federal government’s authority ends there. It often takes courage to fight a bully, and too many states and municipalities have been unable or unwilling to stick up for themselves when the Civil Rights Division purports to flex its muscle. Instead, they come to the gunfight armed only with a pocketknife.

The consent decree agreed to by Ferguson is full of requirements that go far beyond the relief the Justice Department likely could obtain even if it actually proved a pattern or practice of unconstitutional policing in violation of Section 14141. Keep in mind that there has never been any finding that the Ferguson Police Department engaged in unlawful discrimination in its hiring. Yet the Justice Department uses the consent decree as a tool to force discriminatory hiring criteria on Ferguson. (See ¶ 281)(requiring Ferguson to have “throughout the ranks of the Department… diversity in life experience, cultural background, race, ethnicity, gender, sexual orientation, and language.”) And you thought that the objective of police departments should be to hire the best qualified law enforcement personnel who will protect the public regardless of their skin color or who they prefer to sleep with!

The social engineering doesn’t stop there. The consent decree requires Ferguson to have “goals” and “objectives” for “attracting and retaining a high-quality and diverse work force with the attributes” previously mentioned. There is no doubt that Justice will use quotas to measure whether Ferguson has hired enough women, racial minorities, homosexuals, transgenders, and every other member of the “diversity” club. That is made clear by the requirement in the consent decree that the police department’s hiring criteria must “ensure that no process, criterion, or requirement has a statistically significant disparate impact on members of a protected group.” The consent decree even requires “competitive” salaries for its police officers; we were unaware that the Constitution or federal law lays out some optimum standard for the salaries paid to a police officer.

These outrageous provisions are just the tip of the iceberg. The 129-page agreement between the city and the Justice Department is filled with such extralegal requirements. While there is an ongoing debate about the effectiveness and wisdom of having law enforcement officers wear body-cameras, this agreement requires all Ferguson police officers to do so. Wearing body-cameras is not a minimum constitutional requirement; neither is requiring the Ferguson Municipal Court to provide “a comprehensive amnesty program” for all open prosecutions “not yet adjudicated that were initiated prior to January 1, 2014.” But then, this administration seems obsessed with providing unilateral amnesty and clemency to everyone from drug dealers to millions of illegal aliens, so why should we be surprised about this unjustified and unwarranted requirement?

What we are advocating here is not a “bury your head in the sand” approach. Rather, we are underscoring that just because the Civil Rights Division is insisting on certain reforms in a potentially troubled department does not mean that department cannot, and should not, insist on something far less burdensome. Is the proposed reform really critical to the professional operation of the department, or is it merely a thinly disguised effort at social engineering by federal bureaucrats? Is the proposed reform truly mandated by the Constitution, or is it merely a “best practice”? It is one thing to strive for best practices; but it is something altogether different to legally bind the department to those (often prohibitively expensive) best practices, at least as they are conceived by this administration, and face judicial sanctions and millions of dollars in monitor costs for failing to achieve them.

Finally, we would be remiss if we didn’t mention the inevitable “Ferguson effect” of many law enforcement consent decrees. Much has been written on this “de-policing” issue, some of the best of which comes from the pen of Heather MacDonald, an esteemed scholar at the Manhattan Institute. As she poignantly explained in a Wall Street Journal editorial late last year:

Now cops making arrests in urban areas are routinely surrounded by bystanders, who swear at them and interfere with the arrests. The media and many politicians decry as racist law-enforcement tools like pedestrian stops and broken-windows policing — the proven method of stopping major crimes by going after minor ones. Under such conditions, it isn’t just understandable that the police would back off; it is also presumably what the activists and the media critics would want. The puzzle is why these progressives are so intent on denying that such de-policing is occurring and that it is affecting public safety.

As part of her column, Ms. MacDonald interviewed William Bryson, chairman of the Delaware Police Chiefs Council. He pointed out what should be obvious: “Proactive policing is what keeps our streets safe. Officers will not hesitate to go into a situation that is obviously dangerous, but because of recent pronouncements about racism, they are not so likely to make a discretionary stop of a minority when yesterday they would have.” FBI Director James Comey echoed these same concerns last October in a speech at the University of Chicago Law School, much to the chagrin of the White House. Comey underscored the consequence of this de-policing: increases in violent crime — especially homicides and shootings — have hit nearly every big city in the country. He reiterated those same concerns recently in lamenting the soaring homicide rates in more than two dozen major cities.

Throughout the United States, particularly in heavily minority areas, the tension and distrust today between law enforcement and the communities they serve is as great as it has been in many decades. Officer morale has plummeted. Yet Civil Rights Division officials — many of whom were previously employed by, or were financial supporters of, the same activist organizations that are now responsible for the often groundless attacks on local law enforcement — all too frequently exacerbate the problem. Too many of these DOJ attorneys feel it is their function to do the bidding of left-wing organizations that are deeply hostile to the police.

No one disputes that rogue officers can be found patrolling our streets. No one denies that constitutional violations occur. Enforcement of federal civil rights laws is clearly important. But to reflexively capitulate to federal bureaucrats in Washington who believe that cries of racism and unconstitutional policing are nearly always true, who believe that every police department should adhere to a uniform standard of conduct determined by national “experts” with Ivy League degrees, who believe that city coffers are bottomless and that the cost of “best practice” reform is irrelevant, and who consider state sovereignty to be little more than a quaint and antiquated notion, is an even greater danger for society. The citizens of Ferguson, Missouri are about to find that out.