Is Ferguson “the Norm”? In Some Ways, Yes

Recently, the Justice Department issued a report that was very critical of the Ferguson police department and courts. In response, President Obama stated that “he doesn't believe Ferguson is typical of most police departments,” and that the city’s practices were “not the norm.”

But in reality, the practices described in the report are commonplace outside of Ferguson, including both those that the Justice Department rightly condemned for violating Fourth Amendment rights, and those that may have had a more innocent explanation given the Justice Department’s very poor use of statistics.

The report leaves the indelible impression that Ferguson’s municipal government was extortionate towards many of its citizens, and took great liberties with the Fourth Amendment. Unfortunately, these practices are not in any way unique to the Saint Louis region, but rather are typical in some neighboring municipalities. In The Washington Post, Radley Balko wrote about how many municipalities in Saint Louis County gouge motorists and others to raise revenue. They also are very harsh and hostile to small businesses in their code enforcement and permitting requirements, an abuse they share with other economically-depressed cities like Detroit.

In the St. Louis area, there are innumerable tiny municipalities. Just driving to work can take you through a dozen. The tax base can’t possibly support that many little governments, so they engage in predatory practices. One possible solution would be to merge a lot of these small municipalities but, of course, no one wants to vote themselves out of power.

The Justice Department’s report also alleges systematic racial discrimination in violation of both Title VI of the Civil Rights Act, and disparate impact regulations issued by the Justice Department under that law. Unfortunately, its statistical methodology is junk. Most of the time, it crudely compares the percentage of blacks arrested to general population percentages. As a result, the Justice Department found systematic racial discrimination based on the presence of statistical disparities that are commonplace in cities across America, when they in fact may not be proof of racism.

For example, the Justice Department writes, “Even though only 67 percent of Ferguson’s population is black, from 2012 to 2014, 85 percent of people stopped by Ferguson police, 93 percent of people arrested, and 90 percent of people who received citations were black.” But crude comparisons to the general population are frowned on by the Supreme Court, even in disparate impact cases. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992 (1988).

This faulty benchmark led a black labor lawyer and civil-rights official to conclude that “the Ferguson Report is a Farce” that disregards basic “math.” He wrote that “several studies over the last 20 years (including data adduced before the U.S. Commission on Civil Rights) show that black drivers commit various types of traffic offenses—including speeding, driving under suspension, DUI, and running red lights and stop signs—more often than drivers of other races.”

The Justice Department’s statistical assumptions contradict the U.S. Supreme Court’s 8-to-1 ruling in United States v. Armstrong (1996). That ruling rejected the “presumption that people of all races commit all types of crimes” at the same rate, which is “contradicted by” reality. Contrary to President Obama’s suggestion that the statistical racial disparities identified in the Ferguson report were not typical or “the norm,” the Justice Department itself in a footnote on page 77 of its report states that disparities are worse throughout the state of Missouri than in Ferguson. It views this as raising “considerable concerns about policing outside of Ferguson as well.” Similarly, USA Today reported:

“at least 1,581 other police departments across the country arrest black people at rates even more skewed than in Ferguson, a USA TODAY analysis of arrest records shows. That includes departments in cities as large and diverse as Chicago and San Francisco and in the suburbs that encircle St. Louis, New York and Detroit.”

But the fact that Ferguson’s racial percentages were often typical might equally be viewed as a sign that the Justice Department’s own statistical methodology is flawed. Under federal court precedent, Ferguson’s statistical disparities weren’t greater than disparities in other cities across the country, which seriously undercuts the Justice Department’s conclusions of intentional discrimination. In People Who Care v. Rockford Board of Education (1997), a federal appeals court ruled that racial disparities in school suspension rates in a school district weren’t evidence of intentional discrimination, where they were no greater than disparities nationally. Moreover, as I have explained elsewhere, the Justice Department’s disparate-impact regulations are themselves of dubious legality under the logic of the Supreme Court’s 2001 decision in Alexander v. Sandoval, which blocked private “disparate impact” lawsuits under Title VI, and held that the Title VI statute does not reach disparate impact.

It is also questionable whether the Justice Department properly controlled for non-racial factors in its statistical analysis.For example, the white population in Ferguson is a lot older on average than the black population. Every criminologist will tell you crime rates go down as people age. You don’t as often see a middle-aged or elderly person speeding or resisting arrest. So you would not expect to see the same arrest rate for whites as blacks in Ferguson given how much older whites are there.

All this doesn’t mean that racism wasn’t present in Ferguson’s police or city government. But it does suggest that the Justice Department’s report isn’t a reliable gauge of the extent to which it was present in Ferguson, and may have painted with too broad a brush.