November 28, 2018 2:11PM

MPD’s NEAR Act Implementation: The Wrong Way to Do the Right Thing

In 2016, the D.C. City Council unanimously passed the Neighborhood Engagement Achieves Results (NEAR) Act, partly based on a pilot program in Richmond, California, that sought to implement a holistic approach to crime fighting. Recently, the ACLU of the District of Columbia (ACLU DC) filed suit against the Metropolitan Police Department (MPD) to implement the component of the NEAR Act that requires police to track demographic and other relevant data of individuals who police stop and frisk for weapons or otherwise search. MPD Chief Peter Newsham has admitted the department has not yet been able to comply with the law’s data collection requirement and recently a federal judge indicated that he was preparing an injunction in ACLU DC’s favor to compel the department to produce and publish the data.

As a policing researcher, the value of new empirical data is high, because, until recent decades, we haven’t had much of it. For just one example, this paucity of reliable policing data led the federal government to underestimate the number of persons shot and killed by police in the United States by about 150 percent every year. Thanks to the researchers at the Washington Post, we now know that police officers fatally shoot an average near 1,000 individuals every year instead of the roughly 400 that were annually reported by the FBI. Data is particularly helpful when trying to measure the racial and ethnic impacts of intrusive policies like stop and frisk because claims of racial bias are nearly impossible to prove in a single circumstance, but data can support or undermine claims of racial bias depending on population and other variables. While numbers by themselves cannot tell the whole story of any given policy, well-cultivated data can show where and in what circumstances disparities arise, giving researchers information to explain what is happening.

Before the judge made his announcement in the ACLU DC lawsuit, MPD had been training its officers to implement the demographic recording section of the NEAR Act. I had conversations with more than a dozen patrol officers over the past several weeks, and the NEAR Act was often a subject of discussion. While each officer I talked to said they would implement the law in line with their general order to do so, personal reactions ranged from ambivalent, to skeptical, to fearful of what implementation would bring. Most notably, officers were apprehensive about asking people who they have stopped and potentially searched for even more personal information, including their ethnicity and gender identity.

The general order posted on the MPD website states that officers should use the following statement when asking for personal information, “Per the NEAR Act, as passed by the Council of the District of Columbia, we are required to ask for your gender, race, ethnicity, and date of birth.”

But the text of the NEAR Act does not require officers to ask this personal information, only to record it.  Indeed, researchers use demographic information to discover racial and other disparities in police stops and to determine whether those disparities are driven by officer bias or by departmental policy. In either case, the relevant demographic information is the sex and race of the stopped individual that the officer observed while making a stop, not the ethnicity or gender identity of the person stopped. What’s more, the general order instructs officers to select “unknown” whenever an individual refuses to answer the questions, subverting the purpose of recording the officer’s observations because of an uncooperative subject.

According to Scott Michelman, ACLU DC’s legal co-director and lead counsel on the NEAR Act lawsuit, requiring the officers to ask the demographic data “was a police decision and it’s actually one of several examples in ways in which the District has rolled out its partial implementation that seems designed to undermine effective data collection.” Michelman continued, “We think MPD is intentionally designing a cumbersome system for the same reason they have been foot-dragging implementing it. That is, they are hostile to this law, they are hostile to its purposes, they don’t want it implemented, they don’t want the public to know whom they’re stopping and why, because they are afraid of what the data will show.”

When asked for comment, the MPD public information office responded that “There were concerns raised during [D.C. City] Council [and] community discussion[s] of the bill that officer observation of gender and race was not sufficient.” MPD also said that the current data collection is an interim step and that the full system should be operational in summer 2019. 

Irrespective of MPD’s true motivation, the general order as written puts patrol officers in a tenuous spot not only because they are going further than the law requires, but if the officers use the text in the general order, they are misrepresenting what the law is requiring them to do. MPD officers are acutely aware of the tensions between themselves and D.C. residents, particularly those who live in economically disadvantaged, racial and ethnic minority communities. Accordingly, none of the officers I spoke to wanted to antagonize individuals by intruding further into stopped individuals’ lives than was necessary, but all acknowledged they would abide by the general order.

The NEAR Act was passed with the understanding that the MPD needs to improve its relationships with the communities it patrols. The officers who are tasked with carrying out the act ought to be given instructions based on accurate information so they do not further damage the relationships they have with D.C.’s most vulnerable communities.

Even if fully implemented as envisioned, the NEAR Act’s intended outcomes are far from certain. However, the NEAR Act is the law and should be followed as written to give it the best chance of success. Both D.C. residents and MPD officers deserve that much.