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Holder’s Hatchet Job

eye on the news

Holder’s Hatchet Job

Another look at the Justice Department’s misguided Ferguson report, which caps the former attorney general’s legacy of racial divisiveness September 13, 2015
Arts and Culture

Photo by Chip Somodevilla/Getty Images

One lesson should have been driven home from the shooting of Michael Brown by Ferguson police officer Darren Wilson in August 2014: racial interpretations of complex events are dangerous. The media and Eric Holder’s Justice Department initially cast Wilson as a racist who shot an innocent black youth. They were, as we now know, flat wrong. Not only did a state grand jury decline to prosecute Wilson last fall, but the Justice Department itself backtracked and recommended against federal prosecution. The evidence confirmed that Wilson acted in self-defense and didn’t provide a whiff of support for allegations of anti-black bias.

Nevertheless, it bears recalling that the racial narrative did serious damage. It sowed mistrust of police around the nation, especially among African-Americans. The antipolice protests and the shootings of police officers, in Brooklyn last year, in Ferguson this year, and most recently in Houston, were byproducts of the poisoned atmosphere created by the campaign against allegedly racist law enforcement. Perhaps unsurprisingly, shooting deaths of law enforcers spiked 52 percent in 2014, declining in 2015 as tensions eased. (Forty-seven on-duty officers died from intentional gunfire in 2014, compared with 31 the previous year. Twenty-four died as of the end of August 2015, which at the same rate would result in 36 deaths for the year.)

Before he stepped down as attorney general earlier this year, Eric Holder commissioned a study of the Ferguson Police Department. The Justice Department’s highly publicized report, “Investigation of the Ferguson Police Department,” released in March, is, unfortunately, premised on the same racial narrative that drove the upheaval over the Wilson incident. And just like the initial accusations against Wilson, this report is fundamentally wrongheaded. It is replete with unproven allegations, erroneous legal analyses, inflated claims of police misconduct and racism, and irrelevant charges. It’s worth reexamining the Holder report in detail—not only to understand one of the most divisive tenures at the Department of Justice in recent history, but also to understand the flawed assumptions that underlie so much anti-police, anti-law-enforcement rhetoric.

Well-established research on police has shown that, contrary to what we see in television cop shows, a small part of police officers’ duties involves actually fighting crime. This is even truer for departments in places like Ferguson, where serious crimes are uncommon. Police officers in small cities spend most of their time answering calls for assistance—such as for fires, accidents, illness, or injuries—handling minor disturbances, and controlling traffic. How well does the Ferguson Police Department (FPD) do these things? For that matter, what exactly is the crime situation in Ferguson? Readers will get no earthly idea from reading the Justice Department report, which devotes none of its 102 pages to the everyday work of the FPD or to crime conditions in the city. Indeed, at least one-quarter of the report has little to do with the FPD, focusing instead on the city’s municipal court.

What the report does provide is a race-centered condemnation, cloaked in legal verbiage, of the Ferguson Police Department, which it purports to indict for violating various constitutional provisions—the Fourth Amendment, which prohibits “unreasonable searches and seizures;” the First Amendment, which protects freedom of speech; and the Fourteenth Amendment, which, through its guarantee of equal protection of the laws, effectively bars race discrimination. For all the smoke, however, it turns out that there is little in the way of fire.

Consider the Fourth Amendment allegations. After pointing out that the evidence needed to assess whether FPD’s officers were making illegal stops and arrests was wanting, the Justice Department investigators went ahead and took a stab at it anyway. Though it isn’t entirely clear from the report, they apparently relied on arrest records, which are often hastily prepared by patrol officers and frequently omit or misdescribe details. As a Supreme Court justice once admonished: documents prepared by police “should not be judged as an entry in an essay contest.” This is why court hearings are held on Fourth Amendment claims. Police must testify under oath, subject to cross-examination, to amplify or correct the written reports. It’s well understood that arrest reports, though significant, cannot serve as the only basis for Fourth Amendment rulings. And yet the Justice Department report condemns the FPD for violating the Fourth Amendment based on little more than these skimpy documents, which it concedes are inadequate.

Here is an example, taken from the report, of an allegedly racist Fourth Amendment violation. On one hot day in July 2013, we’re told, police encountered an African-American man in a parking lot while on their way to arrest someone else at an apartment building. Police knew that the encountered man was not the person they had come to arrest. Nonetheless, without reasonable suspicion of wrongdoing, they handcuffed him, placed him in the back of a patrol car, and ran his record. It turned out that he was the intended arrestee’s landlord. He went on to help the police enter the person’s unit to carry out the arrest but later filed a complaint alleging racial discrimination and unlawful detention.

Notice that the man’s race is provided, though there is no suggestion that it was relevant to the case. But race is always the subtext in this report, as if to underscore the racial motivation for the alleged mistreatment. The report’s key point here is that the man’s brief confinement in an air-conditioned patrol car was a Fourth Amendment violation, because “[e]ven temporary detention . . . constitutes a deprivation of liberty and must be justified under the Fourth Amendment.” Here is an example, we’re invited to conclude, of unconstitutional misconduct by Ferguson police—part of a pattern of racist abuse.

On close examination, however, it is not at all obvious that this detention was unlawful, and the report applies the wrong legal standard to the facts.

Fourth Amendment cases are complex, with lots of rules and exceptions that depend heavily on the factual details in each case. The DOJ’s skimpy account, based no doubt on an equally thin police report, is simply inadequate to determine whether there was an illegal detention. For instance, the report doesn’t tell us whether the parking lot was part of the apartment complex. If it was, the arrival of the property owner at the lot might have indicated that he was about to enter the apartment. Did the police have any conversation with the man? Did he say he was going to the apartment, which, after all, he owned? Did the police ask him to stay outside while they completed the arrest? Did he seem cooperative, or was he adamant about his right to enter? None of this is discussed, though answering these questions is vital to determining the validity of the detention.

Though the Supreme Court has never ruled on this specific issue, it is probably lawful under the Fourth Amendment for police briefly to detain a third party if they have reason to believe that he might interfere with a legitimate arrest. It’s not difficult to imagine the arrest of an armed man—say, a local drug dealer, in his home—in which the police need to secure the area and don’t want any friends, neighbors, or landlords dropping by. Contrary to the report, “reasonable suspicion” respecting the possible criminal activity of the landlord is not required for brief detention in a situation like this. The proper legal test, not presented in the report, is whether the officers had sufficient reason to suspect that the landlord posed a threat to the police—and we don’t know enough to make that determination. (See United States v. Maddox (2004), in which a federal appeals court upheld the detention of a man for a half-hour even though he was outside the residence in which police were serving an arrest warrant.)

Here’s a second example of an assumed Fourth Amendment transgression. Ferguson police conducted what they called “ped checks,” apparently brief encounters with people on the street or in apartment complexes, perhaps aimed at deterring roving bands of menacing young males. But this is speculative, as we’re not given a description of the purpose or implementation of the tactic. Nor are we told whether it was effective. But we are told—without any substantiation—that these are “suspicionless, legally unsupportable stops.”

Anyone conversant with Fourth Amendment law knows that the word “stop” has special meaning. It necessarily includes a “seizure”—a detention—as this threshold must be crossed before the Fourth Amendment is triggered. The Amendment forbids “unreasonable searches and seizures.” It does not apply to all contacts with police: interactions between police and citizens that don’t rise to the level of a “seizure” are not limited by the amendment. So, for example, if a police officer approaches a citizen and asks questions, as long as the officer doesn’t behave in a way that makes it clear that the citizen is not free to walk away, this is a nonevent under the Fourth Amendment.

The DOJ report provides two illustrations of putatively illegal ped checks. The first took place one night in December 2013, when, we’re told, “officers went out and ‘ped. checked those wandering around’ in Ferguson’s apartment complexes.” That’s it. We don’t know why the police went to these apartments. Were there complaints from tenants about young muggers roaming the premises? Did the ped checks reduce crime or fear of crime in the apartments? Most important for the purposes of Fourth Amendment analysis, we don’t know anything about the manner in which the ped checks were conducted. Were they stops amounting to seizures in the Fourth Amendment sense or mere interactions? Were there any complaints, any rulings by a court or other authoritative body indicating that the FPD acted improperly? We get no answers from the report.

The second example is equally unhelpful: “In another case, officers responded to a call about a man selling drugs by stopping a group of six African-American youths who, due to their numbers, did not match the facts of the call. The youths were ‘detained and ped checked.’” We can’t tell from this barebones description whether this was an illegal stop. Just approaching people and asking questions may be a “ped check,” but it is not necessarily a detention, much less an unlawful one. “Stopping” the six youths may have been a Fourth Amendment violation, maybe not. Maybe one of the youths resembled the suspect. Perhaps they were engaging in loud, aggressive, or other suspicious behavior. Who knows? The report simply assumes the worst about the police. Virtually all of the Fourth Amendment discussion in the Justice Department report is like this: filled with inadequate descriptions, conclusory assertions, and legal errors.

Just one more example should suffice to drive my point home. The report announces that “FPD routinely makes arrests without probable cause.” Of course, arrests without probable cause—essentially, enough evidence to believe that the target committed a crime—cannot stand. They are patent Fourth Amendment violations. Since such transgressions are alleged to have occured “routinely” in Ferguson, one would expect lots of egregious cases. Few, however, are discussed. One incident took place in February 2012, when

an officer wrote an arrest notification ticket for Peace Disturbance for “loud music” coming from a car. The arrest ticket appears unlawful as the officer did not assert, and there is no other indication, that a third party was disturbed by the music—an element of the offense. See Ferguson Mun. Code § 29-82 (prohibiting certain conduct that “unreasonably and knowingly disturbs or alarms another person or persons”). Nonetheless, a supervisor approved it. These warrantless arrests [note: referring to this case and one other] violated the Fourth Amendment because they were not based on probable cause.

First of all, the report does not define “arrest notification ticket,” nor is there any reference to such a term in the case law. If it is akin to a desk appearance ticket, a term used in New York, then it is a substitute for arrest—essentially, a summons to appear in court. If such had been issued then, obviously, no arrest took place, much less an illegal arrest. But even if an arrest did take place, it isn’t clear that it was improper. The reference in the town ordinance to “another person” could, judging by its plain meaning, apply to a police officer, and the report provides no case reference suggesting otherwise.

Photo by Scott Olson/Getty Images

If I had been invited to conduct an investigation such as the Justice Department undertook, I’d want to know whether, prior to the Michael Brown shooting, complaints about excessive force by the police had been filed and whether these complaints had been properly examined. I’d also ask how many citizens were seriously injured or killed by FPD officers in a given time period. And I’d want to know how Ferguson’s results compared with other U.S. police departments of comparable size.

One would be hard-pressed to find the answers to any of these questions in the Justice Department report. What we get instead are conclusory statements about a “pattern of excessive force in violation of the 4th Amendment.” Once again, however, the investigators relied by and large on FPD reports—in this case, use-of-force investigation files. These files reveal 151 incidents over a period of four years and nine months, between 2010 and 2014. Is this an unusual number of incidents? A good way to answer this is to compare the numbers with those from similar departments. This was not done.

We’re told, for example, that there were 14 dog-bite incidents, all involving African-Americans, and that some of these may have involved inappropriate use of canines, though without more details, it’s difficult to draw conclusions. In some cases the investigators interviewed the citizen involved and obtained accounts at odds with the police report. Without further investigation and hearings, however, there is no way to determine which version was the truth. Other use-of-force cases involved Tasers. Once again, while some of the uses that the report chronicles seem questionable, the source files are sketchy. And we don’t learn how many abusive Taser incidents occurred over the four-year, nine-month period.

A separate section of the report takes the FPD to task for using excessive force against students, which sounds awful—until one examines the facts more closely. The report considers the following incident an example of excessive force:

[I]n November 2013, an SRO [School Resource Officer] charged a ninth grade girl with several violations after she refused to follow his orders to walk to the principal’s office. The student and a classmate, both 15-year-old African-American girls, had gotten into a fight during class. When the officer responded, school staff had the two girls separated in a hallway. One refused the officer’s order to walk to the principal’s office, instead trying to push past staff toward the other girl. The officer pushed her backward toward a row of lockers and then announced that she was under arrest for Failure to Comply. Although the officer agreed not to handcuff her when she agreed to walk to the principals’ office, he forwarded charges of Failure to Comply, Resisting Arrest, and Peace Disturbance to the county family court. The other student was charged with Peace Disturbance.

Note first that Ferguson’s schools suffer enough disturbances to justify the assignment of two officers—“school resource officers,” as they’re euphemistically designated—to the high school and middle school, respectively. Note, too, that the description of the incident makes a point of the race of the girls involved, even though, once again, the facts offer no suggestion that race is relevant.

And what are the facts that indicate excessive force? Two girls began fighting in class. School officials were called, and they had removed the combatants to a hallway by the time the SRO arrived. The officer told one of the girls to go to the principal’s office. Knowing that the police were involved and that she risked getting into serious trouble, even being arrested, did the girl comply? Was she cooperative, respectful, obedient? Not at all. She pushed past the staff to continue fighting with the other girl. What did the SRO do? He “pushed her back” and said he was arresting her. When she asked him not to handcuff her, the officer agreed.

Where is the excessive force? The push? Should the SRO simply have permitted the fight to resume, prolonging the incident and compelling him to use force anyway in order to pry the combatants apart? And was the arrest unjustified? Certainly a charge of failing to comply with the officer’s instruction seems appropriate; possibly resisting arrest as well. Nor are we told (as usual) the eventual outcome. If the case went to family court, where juvenile cases are handled, it’s likely that the girl faced, at most, a single hearing and an admonition from a juvenile judge. No criminal record would have been created and no adverse consequences for her future would have been likely—unless, perhaps, she had a record of juvenile offenses. But, of course, we don’t know any of this.

Nevertheless, the Justice Report took the SRO to task for resorting to arrest and using force. “This perspective,” the report declared, “suggests a failure of training (including training in mental health, counseling, and the development of the teenage brain); a lack of priority given to de-escalation and conflict resolution; and insufficient appreciation for the negative educational and long-term outcomes that can result from treating disciplinary concerns as crimes and using force on students.”

Even if all this were true, the blame is placed on the wrong party. Why didn’t the school authorities use conflict resolution and de-escalate the incident? Could it be that they were unsuccessful in calming these obstreperous girls and the school police were called in as a last resort? And incidentally, how many arrests were made by Ferguson’s SROs during the period examined by the Justice Department? What happened in these cases? How does this number stack up against other school systems of comparable size in which police are used in similar fashion? No answers will be found in the DOJ report.

One of the favored techniques in civil rights law, borrowed from social science, is disparate-impact analysis. The gist of this methodology is to compare the percentage of a particular group in a population with the percentage of those affected by the activity under study. If a wide variance exists between the two figures, that constitutes disparate impact. So, for example, if we want to determine whether, due to race bias, African-Americans are arrested in greater numbers than seems warranted by their population size, one would first establish the percentage of blacks in the population subject to arrest, then the percentage of all arrested persons who are African-American.

The next step—the hard part—is to explain the reasons for the variance, which may or may not involve bias. To continue with the example of arrests and African- Americans: if the proportion of black arrests is much greater than the proportion of the black population, then police could be treating blacks differently because of the color of their skin. It also could be that African-Americans engage in criminal activity out of proportion to their numbers, in which case bias may not be a significant explanation. Needless to say, this issue is both controversial and difficult to resolve. But one thing is clear: it’s wrong to assume bias whenever there is a racially disproportionate impact.

Using 2010 census figures for Ferguson, the Justice Department documents that about two-thirds of the city’s 21,000 residents, or 67 percent, were African-American. Interactions with police over and above the 67 percent figure would be disproportionate, but not necessarily bias-driven. After all, human groups don’t all engage in the same behaviors, and it’s possible that African-Americans commit offenses out of proportion to their numbers. But let’s set that contentious claim to one side for the moment.

When criminologists examine unlawful behaviors, they take into account factors associated with such misconduct. We know, for instance, that males commit more violent crimes than females, and that young persons are more crime-prone than the elderly or children. Consequently, when we look at the criminogenic population in Ferguson, we should account for age and gender. If we single out the young male population of the city using the census parameters for age, we find that blacks make up approximately 80 percent of the population between the ages of 15 and 29, not 67 percent. The median age of black males in Ferguson is roughly 25, whereas it is 46 for white males, according to census data. Thus, 80 percent may be a more relevant figure for measuring disparate treatment by police than 67 percent. And that means that the disparities reported by the Justice Department are 13 percent less than claimed. To be sure, disparities still exist, but they’re not nearly as glaring as the report suggests.

Here are a few of the disparate-impact claims in the Justice Department report covering the period from October 2012 to July 2014.

“African Americans accounted for 85%, or 30,525, of the 35,871 total charges brought by FPD—including traffic citations, summonses, and arrests. Non-African Americans accounted for 15%, or 5,346, of all charges brought during that period.” Using a measure of 67 percent, the general African-American population, we get an 18-point disparity (85 – 67 = 18). But if we assume that young males are significantly more likely than the general population to incur charges for law violations, then 80 percent—the proportion of all young Ferguson males who are black—is the more accurate measure. With the 80 percent figure, the differential is reduced to a mere 5 percent, a disparity that scarcely needs explaining because it could occur by mere chance.

“Of all stopped black drivers, 91%, or 8,987, received citations, while 87%, or 1,501, of all stopped white drivers received a citation.” Since we’re examining the treatment of motorists who have already been stopped by the police, the key question is whether blacks were more subject than whites to additional negative treatment, namely, a ticket. The answer is yes, but the difference is only 4 points, which is probably within the margin of error.

“891 stopped black drivers—10% of all stopped black drivers—were arrested as a result of the stop, whereas only 63 stopped white drivers—4% of all stopped white drivers—were arrested.” This disparity is actually explained by the report itself. It is due, we’re told, to “the high number of black individuals arrested for outstanding municipal warrants issued for missed court payments and appearances.” Below I will address the problem of the over-issuance of warrants, but it should be obvious that these arrests are not a product of police bias. Police are supposed to take into custody people with arrest warrants—which are issued by the municipal judge, not the Ferguson police.

“11% of stopped black drivers were searched, whereas only 5% of stopped white drivers were searched,” and “24% of searches of African Americans resulted in a contraband finding, whereas 30% of searches of whites resulted in a contraband finding.” The point here is that while a much higher percentage of stopped black motorists were searched, a smaller percentage turned up contraband. While this looks incriminating, it is noteworthy that nearly 9 out of 10 stopped black drivers weren’t searched at all, which surely blunts claims of racism.

The last example concerns tickets for speeding. Some are based on objective measures, such as radar, while others are given out on the basis of other, presumably more subjective methods: “African Americans account for 72% of citations based on radar or laser, but 80% of citations based on other or unspecified methods.” The first thing to note is that African-American speeding offenses measured objectively exceed the 67 percent benchmark, suggesting that the disproportionate number of speeding citations is due to higher incidents of offending, not bias. Using the more appropriate 80 percent standard, however—based on common understandings that young men are more likely to drive over the speed limit than older men or women—we find no disproportional treatment. The percentage of citations based on non-objective criteria matches exactly the African-American percentage of the young male population of Ferguson.

Persistent disparities exist nonetheless in the FPD’s treatment of African-Americans—but there is a big difference between racial disparities and racial discrimination.

Take arrests. More blacks than whites were arrested. To answer the crucial question whether these arrests were motivated by racism, one must ask an apparently taboo question: do African-Americans commit more crimes than whites? If the answer is yes, then we would expect higher arrest rates even in the absence of police bias.

Of course, if the evidence points to elevated crime rates among African- Americans, this fact itself requires explanation—and racism, poverty, and the youthfulness of the population may all be relevant. Since we already know that young people commit more crimes, and since the black population of Ferguson is considerably more youthful than its white counterpart, we would expect a higher rate of arrests of African-Americans (compared with whites) based on age alone.

Though we cannot determine African-American crime rates for Ferguson without relying on data for arrests—the validity of which are in question—we can determine black crime rates by using crime-victimization reports and homicide-mortality data, and draw inferences that apply to Ferguson. The Census Bureau’s massive annual victimization survey of nearly 80,000 households (over 143,000 individuals) yields data beyond reproach when it comes to bias, as the respondents—ordinary citizens—have no incentive to misrepresent their own race or ethnicity. Likewise, homicide data—based on death certificates transmitted to county medical examiners and ultimately collected by the federal Centers for Disease Control—are, in terms of racial bias, unimpeachable.

Both sources reveal a marked differential between whites and blacks. The homicide figures indicate that black murder-victim rates in Missouri cities like Ferguson are between nine and 16 times the white rates in the same locales.

Age-Adjusted Homicide Rates, By Race,
Large Fringe Metro Areas, Missouri, 2010-2013.
(Rates are per 100,000)
  2010 2011 2012 2013
Blacks 26.8 22.5 23.2 23.8
Whites 1.9 2.5 2.7 1.5
B/W Ratio 14.1 9.0 8.59 15.86
Source: Centers for Disease Control online database, Whites do not include Hispanics. “Large Fringe Metro Areas” are non-central cities in counties over 1 million. Ferguson is in St. Louis County, population 1.001 million (2013).

While these are victimization, not perpetrator figures, it’s well understood that people of similar backgrounds tend to associate with—and therefore assault—one another. Consequently, killers wind up being almost always the same race, ethnicity, age, gender, and socioeconomic status as their victims. Nationwide, over the last several decades, 94 percent of the killers of blacks were themselves black, according to the DOJ’s Bureau of Justice Statistics.

Turning to the victimization survey, we find that in the Midwest, which includes Missouri, black households suffer property crimes—including burglaries, vehicle thefts, and larcenies in or out of the home—at rates many times those of white households.

Property Victimization Rates of Households,
By Race/Ethnicity of Head, Midwest, 2010-2013.
(Rates are per 1,000 households)
  2010 2011 2012 2013
Whites 111.9 111.4 138.6 112.8
Blacks 193.9 206.0 204.8 153.6
B/W differential +73% +85% +48% +36%
Source: National Crime Victimization Survey, Whites and Blacks do not include Hispanics.

Though these, too, are victimization figures, given residential segregation patterns, it’s safe to assume that the offenders share the social characteristics of the victims. Consequently, these bias-free statistics strongly support the conclusion that African-Americans have high crime rates (relative to whites). It’s a fair inference that Ferguson’s black population does as well. Thus, we would expect Ferguson’s African-American population to have offending rates above its percentage of the population—and if we use the relevant population of young males, that means in excess of 80 percent of arrests.

Does this mean that the Ferguson police exhibit no racist behaviors? This we cannot say. But it does mean that the DOJ report’s claim that blacks accounted for 85 percent of the total charges brought by the FPD cannot be used to support bias charges.

However, the report goes much further than charging the FPD with biased law enforcement. It also asserts that the FPD is guilty of intentional discrimination, which “is evident from the facts, taken together,” including “the consistency and magnitude of the racial disparities.” But the disparities in police treatment of African-Americans, as we have shown, don’t prove bias, and the other “facts” are by and large related to such matters as municipal court policies, which aren’t created by the police. The report even attempts to infer present-day intentional discrimination by police from past concerns about Ferguson’s growing black population—even though no significant oppositional behavior was reported and none was attributed to police personnel.

As further proof of intentional discrimination, police critics point to a handful of racist email jokes, a section of the report that attracted lots of media attention. Unquestionably these six messages, sent over a period of four years, were racially insensitive and, since they were apparently sent during work hours, unprofessional to boot. But are they proof of intentional racial discrimination in law enforcement? Many people make stupid and insensitive racial and ethnic jokes, but that doesn’t make them bigots. Nor can a few scurrilous emails having nothing to do with law enforcement prove that the FPD purposely mistreated African-Americans. Despite having reviewed over 35,000 pages of police records as well as thousands of emails and other electronic materials, federal investigators found no other statements suggesting an intention to discriminate.

Taken together, the disparity in enforcement—which probably reflects unequal rates of offending—along with isolated incidents of abuse, past expressions of concern over demographic changes in the city, and a handful of inappropriate emails, make a very weak case for proving that the Ferguson Police Department intentionally discriminated.

There is a good chunk of the Justice Department Report worth serious consideration, though it only incidentally reflects on the FPD. About one-quarter of the report chronicles municipal court practices that are more concerned with raising revenue for the city than enforcing the law. Crucially, these court policies were not established by the FPD, and while the Chief of Police acquiesced in them, the report makes no claim that he helped develop or endorsed them. What’s more, the report reveals restiveness over some of these policies among rank and file FPD members. One officer complained that police could spend more time engaging with community members and undertaking problem-solving projects if they weren’t required to focus on activities that generate revenue. “[E]verything’s about the courts,” he told federal investigators, and “the court’s enforcement priorities are money.”

Most important, similar court practices probably exist throughout the nation and should not be assumed to demonstrate racial bias. Many of the policies involve excessive court charges for various minor infractions, perhaps because of the fiscal pressures on U.S. cities. It seems plausible, too, that Ferguson’s poverty population grew—it was 25 percent of the city in 2010—creating added pressures to find new revenue sources. While any policy imposing financial costs burdens the poor more than the affluent, this hardly proves an intention to injure the poor. Nor does knowledge that most of the poor in a city are minorities translate into an intention to harm minorities. Once again, the difference between disparate impact and intentional bias is all-important.

Still, some of the Ferguson court’s practices—and very likely court practices throughout the United States—need rethinking. For instance, summonses often fail to state how much is owed or where and how to pay a ticket. Even more problematic, the municipal court requires personal appearances to resolve a wide range of infractions, and if the individual misses two court appearances the judge will usually issue an arrest warrant. In fiscal year 2013, the report notes, the court issued warrants to approximately 9,000 people—presumably mostly residents of the town, which means 43 percent of the population—for 33,000 different offenses. These are disturbing figures. Of course, it is the Ferguson police who have the unenviable task of enforcing the warrants, which can’t do much for their standing in the community.

Regarding the size of the fines—and here the Justice Department did conduct some regional comparisons—Ferguson’s levies often were above regional averages. For instance, if a driver failed to provide proof of insurance he faced a $375 fine in Ferguson, whereas 70 other cities in the region imposed a median charge of $175. The police don’t set the fine schedule or the rules on court appearances, but police activities are implicated by such policies. Missed payments are treated like failures to appear and two non-appearances lead to the issuance of a warrant. The report concluded, with some basis in fact, that “Ferguson uses its police department in large part as a collection agency for its municipal court.” But let’s put the blame for this where it belongs: with the city government and the court administrators, not with the FPD.

The Justice report bemoans the resentment these kinds of policies engender. And because the police are charged with enforcing many of them—issuing the tickets, arresting the no-shows or defaulters—they probably catch a lot of the heat. But unfortunate as this situation is, it is a far cry from demonstrating that the police are incompetent or ineffective, much less that they are biased.

It’s a good thing that the Ferguson report blew the whistle on municipal court practices. It is time to examine those practices throughout the country, though the solutions are not as straightforward as one might think. There is, for example, a massive failure-to-appear problem in the United States which is not easily resolved without the threat of escalating fines and jail time. But insofar as Ferguson, Missouri, is concerned, little proof exists that such practices were or are race-driven, much less a police-abuse issue.

Just as they had in the Darren Wilson case, Eric Holder’s Justice Department and the mass media began with an assumption that the Ferguson police were racially biased, and this tendentious report, a hatchet job dressed in legal garb, was obviously intended to prove it. But this is a classic case of the conclusion driving the analysis—an analysis that cannot withstand close scrutiny. All too often, the Ferguson report is wrong on the law, fails to provide essential facts, improperly analyzes issues, and blames police for problems not of their making. Its authors—from the civil rights, not the criminal division of DOJ—apparently knew little about police work or Fourth Amendment law, but they did know that their boss wanted to discredit the Ferguson Police Department. Their finished product, which only serves to divide the races further and engender more anger and resentment, is a fitting valedictory for Eric Holder’s bitter legacy.

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