Commentary

There Is No War on Cops

“We have entered an era of intense antipolice activism, led by the federal government in conjunction with agitators like Al Sharpton,” Heather Mac Donald claims in her book The War on Cops. Just how many times have we entered this era? Twelve years before Black Lives Matter came on the scene, Mac Donald delivered a lecture at the American Enterprise Institute titled “The War on Police.” Her 2003 book Are Cops Racist? was subtitled How the War Against the Police Harms Black Americans. Here we go again.

Mac Donald, who is based at the Manhattan Institute, is one of the right’s most prominent voices on crime and policing, writing often for the Wall Street Journal opinion page and testifying frequently on crime and homeland security. Though many on the right—George Will, Ross Douthat, even Newt Gingrich—are coming around to the idea that criminal justice reform is necessary, Mac Donald is resolutely not among them. “America does not have an incarceration problem; it has a crime problem,” she writes.

While some pundits use the phrase “war on cops” almost literally, with false claims that violence against cops has been surging, Mac Donald mostly leaves this idea alone, aside from one assertion that anti-cop rhetoric has “spawned riots, ‘die-ins,’ and the assassination of police officers.” Instead she aims to push back against the critics of the criminal justice system, defending intrusive policing practices such as stop-and-frisk and calling it a “dangerous lie” that the system treats whites and blacks differently. She says we need more proactive policing and stricter incarceration practices to protect our cities from “mass destruction.” For the most part, she doesn’t make a very convincing case.

A new book from a prominent right-wing commentator fails to make the case.

Let’s start with stop-and-frisk. In 1968, the Supreme Court ruled that it is permissible for the police to briefly detain a pedestrian for questioning if there is “reasonable suspicion” that he might be engaged in criminal activity. To proceed from a stop to a frisk of the person’s coat or pants, the police must reasonably suspect that the person is armed and dangerous.

In New York City, the number of stops climbed steadily after Rudy Giuliani was first elected mayor in 1993, growing from about 150,000 per year in the 1990s to 314,000 in 2004. In 2011, the department recorded 686,000 stops. Mac Donald believes this tactic “brought great improvement in public safety to New York,” and she criticizes the civil rights groups that in 2008 challenged the legality of the policy in federal court.

One aspect of the legal challenge alleged racial bias, on the grounds that 80 percent of those stopped were black or Hispanic. In response, Mac Donald makes a fair point that police stops should not be measured against the local population data of racial groups. Even if black men constitute, say, 15 percent of a city’s population, it isn’t necessarily illegal for black men to constitute, say, 70 percent of the persons stopped by police in any given year. If there’s more crime in minority neighborhoods, the police can deploy more units there without racist intent.

Unfortunately, Mac Donald ignores the second basis for the legal challenge to the New York Police Department’s stop and frisk policy—namely, that it systemically violates the constitutional guarantee against unreasonable searches. Mac Donald misleadingly describes the litigation as a challenge to the department’s practice of “stopping, questioning, and sometimes frisking suspicious individuals.” That begs the question in dispute. The complaint was that the police had been stopping people on the pretext of suspicious behavior.

In 2013, a federal district court ruled that the NYPD’s tactics were unconstitutional. The court noted that cops were evaluated by their “productivity”—that is, finding contraband and making arrests. Officers were not disciplined for stops that turned up nothing, and innocent persons had no practical legal recourse for brief detentions and patdowns of their clothing. Thus, the police had job pressures to stop a lot of people, suspicious or not, to see what might turn up. That helps to explain why, of the 4.4 million police stops between January 2004 and June 2012, there was no further action taken, such as an arrest or summons, in a whopping 88 percent. Mac Donald does not address these points.

That 88 percent might actually be an underestimate, because the police do not necessarily file the proper paperwork where a questionable stop turns up nothing. Recall that when NYPD officers roughed up former tennis pro James Blake last year in a case of mistaken identity, they did not report the encounter. As far as police records showed, it never happened. Fortuitously, the incident was captured by a hotel security camera and Blake’s wife urged him not to drop the matter, arguing that it would highlight a type of abuse that black men had been complaining about.

On the subject of race more generally, beyond stop and frisk, Mac Donald writes with supreme confidence—more confidence than her argument warrants.

She is on solid ground some of the time, as when she debunks the liberal notion that black crime is no higher than white crime. Since “young black men commit homicide at nearly ten times the rate of young white and Hispanic males combined,” she argues, “police officers are going to be sent to fight crime disproportionately in black neighborhoods.” True enough, but that does not support her much more sweeping claim that there’s nodifferential treatment by cops of blacks vs. whites.

Let’s consider some arguments to the contrary. On the Run author Alice Goffman, a sociologist at the University of Wisconsin, observes that if white guys get into a schoolyard or bar fight, police and prosecutors are less likely to pursue an aggravated assault case. When black men engage in the same behavior, she argues, criminal charges might well be pursued. Goffman tells the story of a black teenager who was charged with a felony after fighting with a fellow student who called his mom a crack whore. Was it just a fight, or a crime? Pivotal, life-altering decisions rest with the officer who gets the call or the prosecutor who is assigned to the case. Goffman’s argument is anecdotal but still disquieting. If she is right that racial bias is frequently at work in such calls, that would obviously be deeply troubling.

Federal Appellate Judge Janice Rogers Brown, no liberal, has noted discriminatory treatment by the police in Washington, D.C. In a 2007 dissent, Brown wrote, “we all know that courts would not approve the search of four men in business attire, conversing peaceably in front of a Starbucks, if the only basis for the search was a ‘lookout’ [police] broadcast specifying a white man, medium height and build, wearing a business suit.” Brown expressed her concern that the courts were basically adopting a double-standard—that in certain neighborhoods, “being young, male, and black creates reasonable, articulable suspicion” for police stops.

A personal experience lends some support to Brown’s observation. Years ago, I was a witness to a bank robbery in downtown Milwaukee. The robber, who was black, cut right in front of me and demanded money from the bank teller (who was also black). A white police officer arrived shortly after the robber and his accomplice left the bank. The burly cop asked, “What did they look like?” A customer gave him something to go on and he quickly took off to try to apprehend the culprits. About 20 minutes later, the officer brought two young black men to the bank for the employees and customers to identify. They were not the thieves.

I have no reason to believe the responding officer was a racist. He was trying, in good faith, to find the robbers. Yet two young black men were falsely arrested that day. They were not handcuffed and “booked” downtown, but they were brusquely detained for about 30–40 minutes. Like Judge Brown, I strongly doubt that if the robbers were described as two white men, medium build, in business suits, that the police would have seized two white-collar professionals off the street for a show-up.

Fatal encounters may make headlines these days, but brief and harrowing encounters between the police and minority men like the two hauled into that bank mostly roll beneath the public’s consciousness. Here’s the point: The legal protection against false arrest appears to be much stronger for whites than for blacks. Since Mac Donald does not even wrestle with this question, her examination of differential legal treatment is incomplete.

That’s hardly the only time that Mac Donald’s discussion of a policing topic is deficient. For a work that purports to be about the wave of scrutiny that police departments have faced over the past few years, The War on Copsdoesn’t engage the central criticisms.

  • In 2011, the Department of Justice (DOJ) issued a critical report on how the New Orleans Police Department handled use-of-force complaints. “To the extent officers do report force,” it noted, “supervisors do not conduct investigations sufficient to determine whether the force was justified.…Even the most serious cases of force, such as officer-involved shootings and in-custody deaths, are investigated inadequately or not at all.”
  • In 2013, the DOJ found that the Miami Police Department had violated the Constitution with a “pattern or practice of excessive use of force with respect to firearm discharges.” Federal investigators found several shootings were unjustified while others were “questionable at best.” Miami had a peculiar policy of returning officers involved in shootings back to street duty before a determination had been made about the propriety of the shooting. The department’s shooting review procedures were lackadaisical. In one pending case, the involved officers had not even provided their account of the incident more than three years after it occurred.
  • In 2014, the DOJ found systemic policing problems in Cleveland. Notably, the very personnel who were responsible for investigating misconduct admitted that they did not conduct a disinterested inquiry into citizen complaints. Rather, their objective was to cast the accused officer “in the most positive light possible.” Police reports that were supposed to explain the legal basis for detaining and searching people lacked specificity, with cops regularly using what the DOJ described as “canned or boiler plate language.”
  • More recently, the mayors of Baltimore and Chicago asked federal investigators to review their police departments and make recommendations for reform following the deaths of two young black men, Freddie Gray and Laquan McDonald. Gray died after Baltimore cops put him in a police van handcuffed but without a seatbelt; unable to brace himself during the ride, Gray’s spine snapped. Laquan McDonald was shot 16 times by a white Chicago officer; Mayor Rahm Emanuel tried to settle the case quietly during his re-election struggle, but months later, when a court ordered the video of the shooting released, it contradicted the police account that the shooting was necessary.

Mac Donald ignores all this. Instead she focuses on three points. First, that in the Ferguson case that kicked off a lot of the recent activism over policing, Officer Darren Wilson shot Michael Brown in self-defense, and that the Black Lives Matter movement is thus based on a myth. Second, that federal monitoring of local police departments is expensive and will bring more red tape to police operations. Third, that instead of federal monitors, police departments should be allowed to eradicate misconduct with additional training.

That is the sum total of the analysis. Why are the costs of police misconduct litigation soaring? How can the “blue wall of silence” be reconciled with the rule of law? Do police unions make it difficult for chiefs to fire abusive cops? Does a paramilitary culture contribute to the problem of excessive force? Are we to believe that all of our big-city police departments are actually maintaining high standards of professionalism and ethics? Mac Donald addresses none of these questions. At the very least, you’d expect an explanation of why the training she calls for is so lacking in cities such as New Orleans, Miami, Cleveland, Baltimore, and Chicago. Not in this book.

Over and over again, Mac Donald elides the hard work. Toward the end, there’s a lengthy discussion of California’s long-festering problem of prison overcrowding, yet even here she refrains from offering clear policy prescriptions—aside from saying that she thinks California should fight federal judicial orders to reduce its prison population. We should keep the prison problem “in the political arena, not the courtroom,” she says. Even assuming the merit of that proposition, what then? Stuff four human beings into cells that were built to contain one? Build more prisons? Prune the criminal code by, say, legalizing marijuana? Mac Donald vacillates: “Both sides of the deincarceration debate can claim valid arguments.”

Beyond its analytical shortcomings, much of this book is written in an over-the-top polemical style. Barack Obama is not just misguided; he has “betrayed the nation.” Black Lives Matter is a “fraud.” The New York Times serves up “anti-police propaganda.” Columbia Law School professor Jeffrey Fagan’s scholarship “might be characterized as a tutorial on lying with statistics.” Ending the drug war to alleviate the burden on the police, courts, and prisons is a “delusion.”

The most disturbing comment appears in Mac Donald’s account of Eric Garner’s 2014 death in New York. Police confronted Garner for supposedly selling untaxed cigarettes on the street. When a cop took Garner to the ground in a chokehold, Garner begged the police to let up, saying, “I can’t breathe.” He lost consciousness and died of cardiac arrest before his ambulance reached a hospital. Even though the entire incident was caught on a bystander’s cell phone video and New York City agreed to pay Garner’s family $5.9 million to settle a wrongful death lawsuit, Mac Donald expresses skepticism that the chokehold actually caused Garner’s heart attack. The willful blindness here is astonishing.

What Mac Donald calls a “war on cops” is better described as a much-needed debate about crime, law enforcement tactics, and how to deal with systemic police misconduct. Conservatives have some worthwhile ideas to offer in this debate, but Mac Donald’s polemics add heat, not light.

Tim Lynch directs the Cato Institute’s Project on Criminal Justice.