//  4/14/17  //  Commentary

The Information Wars Series: Law operates as it is applied to a set of facts.  Policy is likewise made in response to or anticipation of a set of facts.  While facts are often reasonably in dispute, good policy and sound application of the law require a willingness to engage with facts.  Indeed, fruitful debate about legal principles and policy judgments often emerges only when we can agree—or stipulate to—the facts.  Yet the Trump administration has attempted to subvert or conceal data in a range of policy areas: from police violence, to LGBTQ rights and protections, to climate change.  In this series, we analyze the spheres in which the administration is undermining essential data, the prerequisite to sound—and democratically accountable—policymaking and to the protection of fundamental rights.

In a prior post, we highlighted the Trump administration’s apparent objection to the U.S. census asking individuals to identify as LGBTQ, as well as the administration’s removal of LGBTQ-identification questions from two HHS-sponsored surveys.  We characterized the administration’s efforts as part of its war on information—the administration’s efforts to deny the existence of a problem by disappearing the (inconvenient) facts.

The Trump administration has adopted a similar tactic to address police violence— “addressing” what is often racialized police violence by simply denying that it exists.  As Chiraag Bains has described on this blog, Attorney General Jeff Sessions has had the Department of Justice ask for more time in judicial proceedings to “review” whether consent decrees (settlements with local police departments) were necessary.  When Sessions didn’t get his way, he pouted and attempted to stoke unsubstantiated fears about increased crime. 

There are many, many reasons to be concerned about DOJ withdrawing inquiries into the extent of racialized police violence, and withdrawing supervision of jurisdictions where there has been racialized police violence.  One is that rolling back federal investigations and supervision is a mechanism to disguise the facts.  Niko Bowie has explained how Sessions' plans for DOJ are attempts at obfuscation, similar to what United Airlines has attempted to do after being caught hauling off a 69-year old Asian doctor from one of its flights. DOJ’s investigation and supervision of local police departments is, like the census, a source of information.  And as with the census, information is power.  

We know more about the extent of police violence, and the extent of race discrimination and sex discrimination in local police departments because of DOJ’s investigations and DOJ’s reports.  DOJ is a federal office with a federal platform that can telegraph, on a national scale, information about the extent of racialized police violence.   Consider just some of the information we learned from DOJ’s report on the Baltimore police department:

  •  “A sergeant instructed a cop to stop a group of young African-American men.”  When the officer “protested that he had no valid reason for the stop,” the sergeant replied “Then make something up.”
  • Police publicly strip-searched a woman after a traffic stop for a missing headlight.  The search included a search of her anal cavity.
  • “BPD makes stops, searches and arrests without the required justification; [and] uses enforcement strategies that unlawfully subject African Americans to disproportionate rates of stops, searches and arrests.”
  • “Between 2010 and 2015, BPD recorded over 300,000 pedestrian stops (a number the DOJ believes vastly underrepresents actual stops). Those stops … were mostly confined to black neighborhoods — 44 percent occurred in two low-income black neighborhoods that make up 11 percent of Baltimore's population."
  • BPD “stopped black residents three times as often as white, and arrested black folks on drug charges at five times the rate of white folks.”
  • In an email exchange between a police officer and a prosecutor about a sexual assault complaint, the prosecutor wrote "This case is crazy . . . I am not excited about charging it. This victim seems like a conniving little whore. (pardon my language)." The officer replied, "Lmao! I feel the same."

These findings, because they came from the mouthpiece of the federal government received immediate, national attention—they were reported widely by CNN, NPR, and many other sources.

That is a big help to movements like Black Lives Matter—it helps them organize around what DOJ’s investigations reveal.  It helps them to reach people who are outside of the movement.  It gives them access to information they would otherwise lack.  The federal government can use its investigative power to conduct a more searching review than litigants seeking discovery could ever obtain on their own.  Paul Butler remarked that the DOJ report “corroborates about the police what black people have been saying for decades.”

DOJ’s documented information on racialized police violence is more than an organizing tool; it also affects how institutions view and regulate the police.  Take Justice Sotomayor’s powerful dissent in Utah v. Strieff.  Strieff addressed whether, in a criminal case, the government could rely on evidence that was obtained from an unlawful stop simply because the individual stopped had an outstanding warrant.   Justice Sotomayor (together with Justice Ginsburg and Justice Kagan) would have said they could not.  Justice Sotomayor’s dissent repeatedly relied on DOJ’s investigative findings to support her conclusions about the nature and consequences of police stops.  She cited DOJ’s Ferguson report to highlight how, in certain communities, there are a “staggering” number of outstanding warrants.  And she cited DOJ’s New Orleans, Ferguson, and Newark reports to demonstrate how a significant percentage of arrests involve people with outstanding warrants.

Whatever you think of President Obama’s response to officer-involved shootings during his tenure, he at least understood a key insight of twelve-step programs: admitting you have a problem is the first step in solving it.  In the wake of the shooting of Michael Brown in Ferguson, President Obama created the Task Force on 21st Century Policing by executive order.  That group’s report highlights over and over the need to gather data and be transparent with local communities about police violence.  The report generated the Police Data Initiative, which is aimed at “improving the relationship between citizens and police through uses of data that increase transparency, build community trust, and strengthen accountability.”  As part of that program, local jurisdictions voluntarily began collecting and sharing data, including data on officer-involved violence, because the federal government made it a priority. 

The Obama administration took other initiatives to gather data to inform better policy at the federal level that have recently come under direct fire. On Tuesday, for instance, Attorney General Jeff Sessions announced that the Department would suspend the National Commission on Forensic Science, an advisory board tasked with developing better forensics standards for federal investigations.

There is overwhelming evidence—thanks in part to DOJ’s prior investigative efforts—that police violence and racialized police violence are real problems.  Rather than challenging that evidence, the Trump administration has apparently decided to try and bury it.

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