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Racist Policies Need to Go

Jonathan Blanks

Like Vida B. Johnson, I was outraged at the t-shirt worn by a Metropolitan
Police Department officer
that glorified the use of
“jump-out cars” and contained a common white
supremacist symbol. Police and political leadership should actively
identify and root out white supremacists from police departments
throughout the country. At the same time, community leaders should
examine policies that have disparate racial impacts in communities
of color, even though those policies are facially color-blind or
race neutral. Even without the taint of explicit white supremacy on
the MPD officer’s t-shirt, the policy that produces jump-out
cars in D.C. is racially problematic by itself. Although not
publicly discussed as “jump outs,” the D.C.
Metropolitan Police has been taken to court over the heavy-handed
tactics associated with its Gun Recovery Unit (GRU).

The GRU stops and searches individuals—usually
young black men in Southeast D.C.—to look for weapons. (In
D.C., with very few exceptions, it is illegal to carry a concealed
firearm outside of the home, so the possession of a weapon
concealed on a person is presumptively criminal).[1] Under Terry v. Ohio (1968), an
officer must have an articulable suspicion a crime is ongoing or
about to be committed before he can stop, question, and pat an
individual down to check for weapons or, alternatively, the officer
may search a person if he gains consent from the individual to be
searched. Judge Janice Rogers Brown of the D.C. Circuit Court of
Appeals questioned the legitimacy of that framework in practice,
placing the GRU’s standard operating procedure not in the
poorer, mostly black neighborhoods of Southeast D.C., but in a
posh, predominantly white
residential and shopping district
:

[T]ry to imagine this scene in Georgetown. Would residents of
that neighborhood maintain there was no pressure to comply, if the
District’s police officers patrolled Prospect Street in
tactical gear, questioning each person they encountered about
whether they were carrying an illegal firearm? Nothing about the
Gun Recovery Unit’s modus operandi is designed to
convey a message that compliance is not required.

With the guise of voluntary consent stripped away, the reality
of the District’s regime is revealed. It is a rolling
roadblock that sweeps citizens up at random and subjects them to
undesired police interactions culminating in a search of their
persons and effects.[2]

Although Judge Brown did not mention race at all in
her concurring opinion, the de facto racial segregation
that separates the two places is clear to anyone familiar with D.C.
neighborhoods. If this were tried in a white neighborhood, she
implies, the practice would be abandoned and the department might
even be sued.

And while the defenders of the practice would argue
that Georgetown does not face the homicide and violent crimes
affecting Southeast, it’s too easy to justify separate and
unequal policing under the guise of solving a legitimate policy
problem. While it is entirely fair to say that more crime justifies
a greater police presence in a segment of a city, that crime does
not—or, rather, should not obviate the
constitutional rights of the people who live in that area. If
statistics showed there were more child pornography producers and
distributors in white neighborhoods, the police would not be
justified going door to door to intimidate presumptively innocent
residents to get consent to search their computers to combat child
pornography. Residents would be outraged to be treated as criminal
suspects and intimidated to surrender their rights. Yet the GRU
eviscerates Fourth Amendment protections for young black men
walking down the street as policy, irrespective of any racial
prejudice by the officers.

This sort of practice is not just a D.C. problem.
Investigatory traffic stops are used across the country in order to
find contraband and cash in cars travelling on American roads.
Although traffic stops are a regular occurrence, research indicates
there are two different types of stops and the difference between
those stops has broad racial implications. In their book, Pulled Over, Charles R.
Epp, Steven Maynard-Moody, and Donald Haider-Markel use data to
show that black motorists in Kansas are more likely to be stopped
by police for pretextual causes—minor infractions with little
or no public safety implications, like a burned-out license plate
light—with the ultimate goal of being searched for
contraband.

The focus on explicit
racism threatens to overshadow racially biased policies that can
erode the fabric of the communities police are trying to
protect.

The respondents who were pulled over and subjected to
the searches reported that, for the most part, the officers were
polite and professional throughout the stops. The professionalism
that has been stressed to officers in recent years to decrease
hostility in police encounters does not overcome the drivers’
perceived illegitimacy of the stop. Thus, focusing on individual
officers and possible bias misses the broader impact of the policy
on local minority communities. Findings imply that these pretextual
investigatory stops of minorities have negative effects on minority
communities such as reducing respect for police and civic
institutions as well as undermining the drivers’ sense of
equal place in society, regardless of how polite the officers were.
Sometimes the policies themselves should be examined and
discontinued.

While it is crucially important that racist officers
are found out and dismissed from their police departments, some of
the more pervasive problems affecting minority communities are the
policies officers are asked to carry out. Dubbing today’s
criminal justice system “The New Jim Crow” may be a
helpful comparison to understand the scale of the damage done to
African-American communities by mass incarceration, but I fear of
over-reliance on the narrative of an intentional suppression of
black people by malicious police and profiteers. The focus on
explicit racism threatens to overshadow racially biased policies
that can erode the fabric of the communities police are trying to
protect. Too often in law enforcement, and government generally,
the damage done to marginalized communities stem not from malice,
but the unintended consequences of well-intended policies.

Notes:

[1] A recent decision in the U.S. Court of
Appeals for the D.C. Circuit
allowed the District to start
issuing concealed carry permits to all qualified applicants, but
this is likely to be stayed and held over until an appeals court
hearing and decision en banc or on appeal to the U.S. Supreme
Court. For the purposes of this post and as a matter of reality for
District residents and police, the presumptive criminality of
concealed possession is accurate.

[2] United States v. Gross, 784 F.3d 784
(D.C. Cir. 2015) (Brown, J. concurring at 790-791).

Jonathan
Blanks
is a Research Associate in the Cato Institute’s Project
on Criminal Justice and Managing Editor of PoliceMisconduct.net.