Aziz Huq (Chicago) on "Disparate Impact and 'Stop and Frisk'"...

Aziz Z. Huq, THE CONSEQUENCES OF DISPARATE POLICING: EVALUATING STOP AND FRISK AS A MODALITY OF URBAN POLICING, 101 Minnesota Law Review 2397 (2017).

Aziz Huq (Chicago)

Aziz Huq (Chicago)

The economic impact and redistributive effect of discriminatory policing can be described as the asymmetrical distribution of society’s transaction costs and negative externalities.  It also perpetuates the myth of black inferiority, which represents asymmetrically imperfect information about black folks.  The aggregate trauma relating to unnecessary or abusive interactions with police cause black folks to withdraw from society in many ways, which can be described as asymmetrical commit to market rationality or profit maximization.

Aziz Huq offers a wonderfully thorough critique of the urban policing strategy known as “stop and frisk”.  He extends the conversation from Tracey L. Mears’, The Law and Social Science of Stop and Frisk, 10 Annual Review of Law and Social Science 335 (2014).

I would also note that Professor Huq introduces us to some important empirical studies relating to the racial environment or ecology of the ‘inner-city’.   For example, Patrick Sharkey, Spatial Segmentation and the Black Middle Class, 119 Am. J. Soc. 903 (2014).  And, Douglas S. Massey & Jonathan Tannen, A Research Note on Trends in Black Hypersegregation, 52 Demography 1025 (2015).

As well as the government’s role in creating racially segregated and impoverished communities:  Myron Orfield, Land Use and Housing Policies To Reduce Concentrated Poverty and Racial Segregation, 33 Fordham Urb. L.J. 877 (2006); Erika K. Wilson, Leveling Localism and Racial Inequality Through the No Child Left Behind Act Public Choice Provision, 44 U. Mich. J.L. Reform 625 (2011) (analyzing the ways in which explicit government policies caused racial residential segregation in the suburbs and urban cities). Such policies also existed at the federal level. See Douglas Massey & Nancy Denton, American Apartheid: Segregation and the Making of the Underclass (1993). For a recent accounting in the legal scholarship, see Sarah Schindler, Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment, 124 Yale L.J. 1934 (2015) (discussing the role of the Federal Housing Authority in fostering urban racial segregation).

After outlining the limits of Equal Protection and Fourth Amendment jurisprudence, Professor Huq invokes and explores the possibility of borrowing “disparate impact” analysis from Title VII employment discrimination cases, i.e., Griggs. 

“Specifically, I sketch three tractable empirical strategies for identifying disparate impact in street stop-related policies. First, deployment-related disparities between beats or districts within a jurisdiction can be measured to ascertain whether a municipality's overall distribution of policing resources can be justified on race-neutral grounds. Second, within a given beat or district, disparities in how stops are allocated among different ethnic and racial groups can be evaluated. Finally, at the level of given officers, disparities in the quantum of suspicion deployed for whites and nonwhites can be assessed by using a range of empirical tools.

By aggregating and contrasting disparities at these different levels, the empirical approach that I sketch roughly enables a better understanding of the causes and extent of SQF's disparate impact. That understanding in turn can serve as a foundation for more targeted, less disruptive, and more effective remedial interventions.”

 

As disparate impact analysis requires the litigant to identify the harms caused by the policy, then prove that the proffered justification is unsound (arbitrary), that there are more reasonable alternatives.  As for the justifications for Stop and Frisk:  “First, the evidence for an absolute crime-control effect from SQF is surprisingly fragile. Second, the evidence of a marginal effect from SQF in comparison to other methods is nonexistent. What evidence exists suggests many of the crime-control benefits of SQF might be obtained without its aggregate, racially disparate aspect. Third, and relatedly, the claim that SQF disproportionately benefits African Americans rests on complex and controversial assumptions. Finally, even assuming firm evidence of large crime-control gains from SQF, there is a normative objection to the state taking credit for those benefits when the governmental entities responsible for SQF also contributed to minority segregation into neighborhoods of concentrated poverty…”

“The empirical case for a crime-control benefit from SQF, in short, does not stand on strong foundations. While there is some empirical support for an effect from SQF in small-scale experiments, there is no existing evidence that this effect can be replicated at a citywide level. The weakness of its evidentiary predicate contrasts with firmer evidentiary basis for other kinds of reform, including the deployment of more officers and the use of more data-driven approaches. More than forty years after Wilson's initial intervention, therefore, SQF remains largely predicated on a mere prediction about the effect of intensive street stops on violent crime levels.

Second, econometric studies of SQF's effect on crime of the kind discussed above aim to isolate the marginal effect of the policy after controlling for all other relevant variables. In effect, they strive to hold all else constant and then search for an effect of SQF on crime rates. But the assumption that all else remains constant is an obvious artifice. A police force that foregoes SQF is likely to employ an alternative policing strategy that does not involve nonconsensual interventions or facially racial disparities in treatment. The marginal negative effect on crime-control of shifting from SQF to an alternative modality of policing is likely to be smaller than the absolute effect of simply foregoing SQF entirely. A police force that chooses to forego SQF can redeploy the substantial personnel resources that it occupies for other tactical uses.

There are, moreover, other modalities of policing that are positively associated with crime control in rigorous empirical studies. Consider, for example, the empirical literature on “hotspot policing,” a technique that has some parallels with SQF, but that can also be distinguished from it. Hot-spot policing involves “the application of police interventions at very small geographic units of analysis.” A range of studies and metastudies suggests that the highly localized deployment of officers has a meaningful and statistically significant effect on crime rates.”

Professor Huq prefers ‘HotSpot policing” to “Stop and Frisk”:

“[H]ot-spot policing does not require stops, let alone frisks or arrests to be effective. There is instead evidence that “increased police presence alone” dampens crime rates, and the “strongest” impact is associated with “situational prevention” strategies, that “disrupt situational dynamics that allow crime to occur,” for example by “razing abandoned buildings.””

He also contends that cities under consent decrees should not get the benefit of the doubt, because those cities also created the situation in which middle-class blacks (which I presume the author is suggesting are more law abiding and less deserving of police suspicion) are subjected to the same treatment as impoverished black folks.  

“The threshold premise of this argument--that states and localities bear a measure of responsibility for concentrated, minority poverty--has substantial support in the historical and empirical literature. To be sure, “macrostructural” forces such as the deindustrialization of central cities and the exit of some middle-class and wealthy African Americans have driven the growth of concentrated, racialized poverty. But these forces have been magnified by “deliberate policy decisions to concentrate minorities and the poor in public housing.”

In Chicago, for example, alderman and the mayor thwarted efforts from the 1940s onward to disperse African Americans outside traditionally black neighborhoods.156 Across the country, zoning restrictions and permitting requirements have been extensively deployed to perpetuate racially “exclusionary” residential patterns.

…Stated in brief then, my fourth point is that the institutional author of racial segregation should do no further harm to minorities when it addresses the costs of such segregation. Having created the problem that SQF is intended to address, municipalities have no entitlement to a benefit of empirical doubt. More ambitiously, cities' partial culpability for the underlying condition of concentrated poverty might justify a demand for special efforts to ensure that no policy response to crime imposes a disproportionate share of costs on the legatees of historical discrimination, or that denies them a disproportionate share of its benefits.”

The last sentence shows how compatible Professor Huq’s framework is with the concept of racism as asymmetrical market imperfections.  Presented in terms of a cost/benefit analysis, Huq goes on to describe several harms relating to stop and frisk policies. 

Some lend themselves easily to asymmetrical transaction costs and negative externalities:  “First, the Supreme Court in Terry recognized that even brief stops and frisks have immediate and substantial costs. Chief Justice Warren described even a temporary police stop as “a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.” In subsequent cases, however, the Court has tended to downplay the immediate psychological and dignitary costs of being stopped.

Second, a different, racial asymmetry afflicts judicial consideration of the risks of bodily harm attendant on a Terry stop. On the one hand, the Court has punctiliously attended to the risk of bodily harm to officers during a stop. On the other hand, the Court has been largely silent about the possibility that Terry stops expose the individual subject to police attention to a substantial risk of physical violence.

Given such large racial differentials in the use of force, it would hardly be surprising if a large proportion of the innocent minority residents of high-crime neighborhood who are stopped and frisked objected to aggressive SQF even if it had public safety benefits that diffused to their benefit.”

Professor Huq also identifies cynicism as a product of stop and frisk, where I would go further and describe how black folks withdraw from not just community police interactions, but from larger society itself, including the economic marketplace:  Third, the effects of Terry stops on the individuals subjected to police attention do not expire when their participants are released from police control. Rather, negative experiences with the police breed cynicism about the law, an unwillingness to invoke the police's aid, and a diminished proclivity to comply with the law or cooperate with legal authorities. Fourth is yet another vicious circle related to legal cynicism: if minorities have consistently negative views of the police, and respond to stops accordingly, police may come to anticipate more resistance from those minorities.

And there is actual physical withdrawal:  Fifth, just as legal cynicism leads to higher victimization rates, so too can the carceral consequences of SQF have negative effects. “[M]ore punitive police enforcement and parole surveillance” leads to a higher frequency of repeat admissions from a given neighborhood, which “begets more incarceration,” which in turn begets more crime.

As for perpetuating the myth of black inferiority (criminality) stop and frisk represents asymmetrically imperfect market information: “Sixth, SQF might solidify stereotypical assumptions about the correlation of race and criminality. When neighborhoods targeted for SQF are predominantly African American and Hispanic, SQF is likely to strengthen the widely shared perception of a connection between race and crime.”

Equal Protection jurisprudence, as Professor Huq points out, has been neutered.  He therefore resorts to Title VII: 

“There is something of a puzzle here. In glossing the Equal Protection Clause, the Court has invoked ideas of racial stigma, racial balkanization,289 and the dignitary interest in being judged on one's own merits. And then it has been largely silent about policing….I argue that a disparate-impact framework of liability, now found in both federal statutes and state law, provides a better--but not a perfect-- framework for analyzing urban street-policing policy… Black-letter constitutional law largely ignores the ecological and dynamic aspects of SQF. It therefore fails to provide a useful analytic lens for determining when and how urban street policing is a moral wrong.”

He gets to Title VII through Justice Department consent decrees, as well as a couple state laws: 

“Disparate-impact liability in the policing context is available under two sets of laws. First, Title VI of the Civil Rights Act of 1964 prohibits “discrimination under any program or activity” receiving federal funds. Pursuant to an explicit grant of rule-making authority under the statute, federal agencies, including the Department of Justice, have promulgated regulations prohibiting disparate racial impacts as well as disparate racial treatment. The Justice Department's disparate-impact regulation applies to “any program for which Federal financial assistance is authorized under a law administered by the Department.” Because local police departments receive federal funding from “dozens” of separate programs, many administered by the Department of Justice, the Title VI bar on disparate impact applies to most state and local police forces. That prohibition, however, may be enforced by public suits but not via individuals invoking a private right of action. The New Orleans consent decree and the Baltimore settlement by the Justice Department, for example, both invoke Title VI authority, albeit in nebulous terms. … Second, at least two states prohibit policing measures with disparate racial impacts.”

Disparate impact analysis is no easy hurdle to leap:

“In glossing the FHA's disparate impact prong, the Court in its 2015 Texas Department of Housing and Community Affairs v. Inclusive Communities Project opinion cautioned that constitutional problems would arise if “liability were imposed based solely on a showing of a statistical disparity.” Rather, it is only “artificial, arbitrary, and unnecessary barriers” that legitimately and constitutionally trigger such liability.”

Ultimately, Professor Huq would determine whether certain police tactics are disparately impactful by evaluating empirical data that demonstrate a) disparities between precincts, b) disparities within precincts, and 3) disparities within and between officers.

Professor Huq concludes that even if the federal courts do not respond to the disparate impact of stop and frisk and other oppressive police tactics, cities themselves may be inclined to adopt alternative measures if it is proven that stop and frisk is no more effective than those alternatives, while certainly being more costly in terms of subordinating African Americans.

Unfortunately, however, Professor Huq does not deal with Derrick Bell’s Interest Convergence Theory, even after he seems to acknowledge that whites often ‘feel’ safer by the knowledge that black communities are overpoliced.  - DreSmith