Attorney General Jeff Sessions is trying to restore the legitimacy of policing, so damaged by the Obama Justice Department. Ongoing conflicts in Milwaukee and Chicago show how difficult it will be to undo the previous administration's legacy. Barack Obama's Justice Department put more police departments under federal control than any previous administration; these federal consent decrees—binding agreements between a local agency and the federal government—cost police departments millions of dollars to implement and take dozens of officers off the street to fill out reams of paperwork within rigid deadlines. In 2011, the Justice Department started offering police departments “collaborative reform” as a less-burdensome alternative to the onerous consent-decree process. But collaborative reform soon morphed into consent-decree lite. The reports ran over 200 pages and contained scores of nitpicking recommendations. And when the Justice Department looked more closely, it was not at all clear that the agency that ran collaborative reform—the Office of Community Oriented Policing Services (COPS)—had the statutory authority for such adversarial audits.
Attorney General Jeff Sessions has reoriented the program to help departments fight crime, rather than phantom police bias, without imposing a costly bureaucratic overlay. The changes come too late, however, for the Milwaukee Police Department, whose chief, Ed Flynn, was sweet-talked into collaborative reform by the former head of the COPS office. In 2016, Milwaukee’s collaborative-reform team produced a draft 243-page report, characterized by the usual Obama hallmarks—above all, a disparate-impact approach to finding police bias that measures police activity, like stops or arrests, against population ratios rather than against crime rates. The current DOJ lawyers agreed with Flynn that the draft report was seriously flawed and should not be released until its errors were corrected. But someone—whether an Obama aide, a member of the collaborative-reform team, or a Milwaukee police official—leaked the report to the Milwaukee Journal Sentinel and to the city council. The Journal Sentinel, which has waged a crusade against Flynn for years, splashed its nearly 3,000-word article on its front page under the unintentionally hilarious headline: trust in police damaged, report says: department of justice draft says milwaukee chief relies too much on data. Accusing a police department of relying “too much on data” is like accusing a doctor of relying too much on evidence-based disease markers in his diagnoses. Another term for “data-driven” is “victim-driven,” since crime data simply record the incidence of criminal victimization. The Journal Sentinel followed up with another front-page piece the next day: 9 key takeaways from the doj draft.
Predictably, the report criticizes traffic-stop rates, allegedly three times higher for blacks than for whites. The investigators concede that the department deploys its resources based on “data to identify neighborhoods of higher crime rates.” Race, in other words, has nothing to do with deployment or enforcement. But, the report goes on to explain, “community members have expressed concern that the areas identified as high crime are also more populated by minority community members. As a result, MPD’s data driven policing strategy has a disparate impact on minority community members.” This, in a nutshell, is the core dilemma facing police departments today. Given the huge disparities in law-breaking, the police cannot go to where people are most being victimized without generating racially disproportionate stop and arrest data. In 2016, blacks made up 89 percent of robbery suspects in Milwaukee, 85 percent of aggravated-assault suspects, and 81 percent of homicide suspects, though they are 39 percent of the population. Their victims were predominantly minority. The nonfatal shooting rate for blacks is over 15 times higher than for whites; the homicide rate is over 11 times higher than for whites. The only way to avoid generating racially disproportionate police activity data is to stop serving the minority victims of crime. No one has articulated this bind more eloquently over the years than Ed Flynn.
The dilemmas of policing in the Black Lives Matter era were put on vivid display this April, when Milwaukee’s city council voted to require the MPD to loosen its policy on car chases. The current MPD policy, instituted by Flynn, requires a high threshold of criminal behavior before officers can give chase; it represents the gold standard of “progressive” policing, because high-speed car chases are extremely dangerous. But the city council now wants officers to crack down on reckless driving because minority communities have complained about speeding, often by carjackers who zoom away after stealing cars. Nearly 90 percent of car-theft suspects are black, but the same municipal officials who routinely blame the MPD for high rates of black incarceration are now demanding that the department ramp up enforcement against the black population. “It’s more than a little baffling to me,” reports Flynn, “that the same city council that’s on the record as opposing putting people in jail for committing crimes wants us to engage in more pursuits that place innocent lives at risk to catch people they don’t want to see put in jail.”
The collaborative-reform draft cites MPD’s alleged failure to engage in community policing. In fact, Flynn has put so many officers on bikes to interact with the community that critics have accused him of letting patrol-car response times increase. The report also alleges that the department has a patrol workforce that does not “reflect the diversity of the Milwaukee community at large.” Like every other department in the country, Milwaukee tries to recruit as many minority candidates as possible. The Black Lives Matter narrative that policing is racist does not facilitate that effort; nor does the fact that minorities are more likely to have a criminal record and weaker test scores. It’s unlikely in any case that further racial engineering would improve policing: another Obama-era collaborative-reform report found that black and Hispanic officers in Philadelphia had a much higher rate than white officers of shooting unarmed black males. That disparity, which has been found elsewhere, undoubtedly derives from racial quotas in hiring.
As if the leaked report were not causing the MPD headaches enough, the Wisconsin ACLU is suing in federal court for a consent decree against stop, question, and frisk. The suit is based on the usual specious disparate impact analysis.
These will be the anti-cop strategies in the post-Obama era: leverage the legal tools and documents left over from the Obama years and continue suing for federal control, aided or cheered on by former Justice Department officials. Chicago exemplifies this strategy as well. The Obama Justice Department just missed finalizing a consent decree for the Chicago Police Department before its term expired. The DOJ report preceding the planned decree was immaculately free of crime data or any acknowledgement of community demands for protection from public disorder.
Mayor Rahm Emanuel initially opposed the Justice Department investigation, then reversed himself under political pressure. When Attorney General Sessions announced that he would not pursue the Chicago consent decree, Emanuel backtracked and conceded that Chicago police superintendent Eddie Johnson was in fact capable of constitutional policing on his own, without having to dedicate millions of taxpayer dollars and hundreds of thousands of manpower hours to satisfy a federal monitor. This reversal of the reversal brought another round of bias accusations against Emanuel. Now he has reversed himself yet again, in the wake of a lawsuit filed by Illinois attorney general Lisa Madigan. Madigan, of course, wants to put the CPD under federal court control. An Obama Justice Department lawyer, Christy Lopez, called Madigan’s suit a “clarion call” and an example to other states and jurisdictions of how to push reform though the federal courts in the Trump era, reports the Chicago Tribune. Emanuel announced: “I am proud the attorney general is standing up for our city, for its residents, and for our police officers where the Trump administration fell flat.” The mayor has yet to explain why he thinks Eddie Johnson cannot “stand up” for Chicago’s residents and police officers. Any mayor who encourages a federal takeover of his police department should fire his police chief, since that chief is presumably unable to manage the department properly—and then the mayor himself should resign, since he, too, is apparently unable to lead his own agencies in the absence of a federal watchdog and judicially enforced mandates.
(With perfect gall, Emanuel has launched his own lawsuit against the Trump administration, demanding that Chicago receive its usual share of federal crime-fighting largesse, even though Chicago willfully thwarts federal attempts to deport illegal-alien criminals.)
During this jousting over who can more forcefully accuse the CPD of racism, Chicago’s shooting spree continues to turn the city’s South and West Sides into a bloodbath. Labor Day weekend was a relatively “good” holiday weekend—with “only” seven people killed and another 37 or so wounded in shootings. Among the dead was a 15-year-old boy who was shot in the back at 7:50 on Monday evening during an argument in front of a West Side home. By comparison, over Memorial Day weekend this year, at least 53 people were shot, eight fatally, according to the Chicago Tribune. This “good” Labor Day tally was accomplished by flooding shooting hotspots with an additional 1,300 officers and by conducting parole sweeps before the weekend to get known criminals in violation of their parole conditions off the streets. Don’t be surprised if the ACLU files a lawsuit in retaliation. If Emanuel and Johnson think that they will continue to have manpower to spare and the tactical freedom to make lawful preemptive arrests under a federal-consent decree, they are fooling themselves.
The FBI’s national crime report for 2016 will come out later this month. Expect a continuation of what I have called the “Ferguson effect”—rising violent crime in minority neighborhoods due to politically induced depolicing. Jeff Sessions has pledged to reverse that crime increase. But as Milwaukee and Chicago show, the shadow Obama government will fight him all the way.
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