Liberty, Prudence, Imperfection, and Law

“Ferguson, New York, and Eric Holder’s Policing Problem,” By Bruce Frohnen

“Eric Holder at the Ukraine Forum on Asset Recovery (14038928936)” by Foreign and Commonwealth Office – Ukraine Forum on Asset Recovery.

The good news for Attorney General Eric Holder is that the Ferguson, Missouri, police department—indeed the entire city government—appears to be run by a band of thugs. The bad news for Holder is that his own team of politically motivated investigators could come up with no excuse to indict Darren Wilson, the police officer who shot and killed Michael Brown in self-defense. It turns out, however, that this last fact will make no difference to anyone in Ferguson, with the possible exception of Darren Wilson. Why not? Because the city still has been “officially” found to be racist, meaning that the Justice Department will demand its usual politically correct “reforms” on threat of prohibitively expensive lawsuits and bad press, and justice once again will take a back seat to Eric Holder’s race-based agenda.

The injustices heaped on the people of Ferguson by their own police department, and even more by their local government and its municipal court system, are quite significant. People have been harassed, fined, jailed, and tasered for small offenses, including the “offense” of objecting to clearly illegal demands from police. Not so oddly, these tactics, noted in the official report, have received more emphasis from conservative than from liberal pundits. The reason is simple: the facts undermine the liberal claim, put forward by Holder’s team and embraced by his supporters, that the undeniable bad behavior on the part of Ferguson police is the product of racist attitudes. As Heather Macdonald already has pointed out, the evidence for this charge is specious, resting as it does on “disparate impact” analysis.

Though written before the Holder report was even released, Macdonald’s brief, predictive response (which can be read here eviscerates its logic. Disparate impact analysis assumes racial motives any time even the most neutral policies (e.g., an employer’s requirement that employees all have a high school diploma before being hired) effects members of one racial group more than another. In Holder’s Ferguson report, as in all too many instances, the Department of Justice found a supposed pattern of racism because African Americans were more likely to be pulled over, searched, and arrested than whites, based on their percentage of the local population. As Macdonald points out, these numbers are worse than useless unless one compares the statistics in light of relevant differences—most especially relative crime rates and, for the auto searches, statistics on percentages of given populations with outstanding warrants. In brief, Holder “found” racism where there was, in fact, police enforcement.

This is not to say that the police enforcement was well conducted. For example, and quite sadly, essentially fraudulent postings of “outstanding warrants” are another tool Ferguson police have used to bully people into bowing to a draconian police system designed to maximize city income from fines. It seems the local government years ago decided to balance its budget on the backs of those caught committing even very minor infractions, including through illegal forms of harassment, penalty fines, and the like. Again, the behavior was bad, though not specifically racial in character.

But, one might ask, who cares? Even if disparate impact analysis is faulty (one might say fraudulent), even if the consent decree Ferguson will have to sign will impose rule by poorly trained activists, is it not good that the Justice Department will put a stop to the very real injustices taking place in Ferguson, especially since some of those involved clearly had racist tendencies? Such a view, while understandable, would be misguided because it ignores a central and tragic fact, namely, that the Justice Department is not seeking to protect individual persons against police misconduct. It is rather, and simply, seeking to impose a diversity regime on any community that comes onto its radar. And that diversity regime will make streets and people less safe even as it empowers a new class of bureaucrats either in Washington or answering to superiors in Washington.

A key problem with looking to the federal government for solutions to local problems is that Washington has its own agenda. And that agenda generally has less to do with local needs than with programs for national transformation. For evidence, one need look no further than that other city recently exposed to racial unrest on account of police conduct, New York.

African American Eric Garner was killed by New York City police officers as they arrested him for selling loose cigarettes on the street. As in Ferguson, there was no indictment. Unlike in Ferguson, there is strong evidence that there should have been. Garner committed, at most, a petty crime and posed no threat to police officers, whereas Brown had physically and brutally assaulted Darren Wilson and put him in reasonable fear for his life. Yet we hear of no grand Justice Department report or imminent consent decree regarding policing in New York City. Why not? Is it not the case in New York City that African Americans are arrested more often than whites? Disparate impact exists in New York, too, though it continues to be the subject of constant complaint and myriad “solutions.” Is there no regime of heavy fines being handed out for relatively little cause in New York City? Hardly. New York has been living off confiscatory fines for decades as it struggles with an out-of-control budget, a disappearing middle class, and a “broken windows policing” regime that seems to be the only thing preventing social chaos.

But New York City has one thing Ferguson lacks: a “progressive,” left-wing mayor. Bill De Blasio, whose incompetent, racially charged regime has produced collapsing police morale and an expected explosion in violent crime rates, is an Obama Administration dream, committed to furthering every politically correct program imaginable. And, to be fair, New York City has been the site of more discrimination lawsuits, including with and within its police department, than most states. Turf wars there among various ethnic groups are legendary in their extent and severity. But this is part of my point. That city already has in place all the politically correct programs Eric Holder and his successor will soon be foisting upon Ferguson. And the result has not been improvement in police “fairness”; it has been a disaster for public safety and, not coincidentally, race relations.

The diversity regime that the Justice Department will impose on Ferguson will require racial quotas for everything from hiring to promotions to various forms of discipline (such as those imposed on student offenders in schools). The new regime in effect will penalize African Americans and poor people in particular because these groups suffer far more than their white, upper class (liberal) counterparts as victims of crime. The “victor” will be bureaucracy and that class of “facilitators” who live off ideological cant.

Wherever it rules, the diversity regime undermines citizens’ lives in two ways. First, it takes attention away from genuine problems of police misconduct and corrupt regimes that use the police to raise money through unjust punishments, fomenting mutual resentment and bad acts. Second, it requires bureaucratic structures that undermine commitment to merit, quality, and service, instead fostering an entitlement mentality and mutual resentment based on the view that the government hands out benefits according to the political powers of various groups.

New York City and Ferguson have more in common than many on either side would like to believe. A shrinking middle class, too much dependence on government programs, and a series of mandates from the federal government put both municipal budgets under tremendous strain. Moreover, too many people are trapped in decaying urban areas because of their very dependence on various forms of “assistance,” from housing to food stamps. Add to this various forms of political insulation of municipal regimes, including one-party statism and/or simple disinterest rooted in the view that local politics do not matter, and you have a recipe for abusive local government—a recipe that will not be made better by the addition of more racial politics. Sadly, that is exactly what Ferguson will get and New York City already has.


Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.

2 Responses to ““Ferguson, New York, and Eric Holder’s Policing Problem,” By Bruce Frohnen”

  1. gabe

    Gee, now that the “victims” of disparate impact” have seen fit to shoot two Ferguson policemen, I wonder will the Justice Department seek to defend the civil rights of the police so injured?
    Holder and Sharpton have gotten precisely what they wanted – an enraged and infuriated mob energized in their victimhood. What is next – the sacking of Police Headquarters?

    Borrowing from a friend: The diversity industry (as with many others) is nothing more than the reincarnation of a medieval guild; protect and grow your own – easy to do when you are backed by the power of the State.

  2. gcallah

    DeBlasio’s regime may not be great, but as an NYC resident, I can assure you that there has been no “disaster” for public safety or race relations in the city: a quite mild worsening might be more like it.


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