Delaware Attorney General Kathy Jennings says she is “deeply troubled” following the news of the stop and search of a bus carrying members of the women’s lacrosse team of Delaware State University, a historically Black university, last month in Georgia. Delaware State University President Tony Allen has called for investigation, framing police action in this case as racially oppressive.
The team bus was illegally traveling in the left lane and drug dogs indicated the presence of contraband. I don’t trust these dogs. But it is fairly typical to use them during traffic stops. The officers may have lacked probable cause. Let’s find out. Those who read my blog know that I am a Bill of Rights left libertarian and it always troubles me when I hear about incidents like these. It sounds like overpolicing. On the other hand, there was something going on that day. The police had stopped several vehicles that day and on another bus they did find contraband. This usually indicates that the police received a tip.
However, the question of racial profiling is a different question. Allen expresses the prevailing narrative concerning racial profiling in today’s policing practices in dramatic terms. “The resultant feelings of disempowerment are always the aggressors’ object,” he said. This assumes that the officers—who, according to the department, did not know the race of those stopped before they were stopped—purposefully acted to produce feelings of disempowerment and, moreover, its suggests that they were racially motivated to do so. The complaint is about a “racial encounter.” Is this any encounter where detainees are black?
I have been thinking a lot about this matter over the last few years (see my July 2020 essay Policy Presuming “White Privilege” Violates Equal Protection Under the Law). I teach criminal justice courses and one of the books I use in my upper-division criminal justice process class is Epp et al.’s Pulled Over, which claims to be able to show implicit racial bias on policy stops. I have to be critical of the materials I use in the classroom and I detect a problem in this narrative regarding racial profiling. Suppose this had happened to an all-white athletic team. Whites get pulled over by the police all the time. Could they claim that race motivated the officers’ behavior? It’s possible race did play a role (racial bias works in all directions), but the claim would have to be backed by evidence. The burden would be not on the police to do an investigation to find out whether race played a factor. The burden would be on those claiming that the police racially profiled them.
For sure, the public would find a claim by a white man being racially profiled incredible. The reality is that, despite being pulled every day, whites cannot without facing great skepticism claim that the police act towards whites with racial bias. It’s almost always when the detainees are black or brown that the claim is made, and the charge is almost always made on identitarian grounds not on evidentiary ones. We see this with lethal officer-civilian encounters, which I have written about extensively on Freedom and Reason. But the standard must remain the same for everybody. If one makes a claim that racial bias played a role in a police stop, then the person making this claim shoulders the burden to show this. Identitarianism irrationally flips the burden and stands on the grounds of presumption.
Is it statistically true that blacks are disproportionately pulled over by the police? Yes. But it is also true that blacks are overrepresented in crime and are more likely to be stopped on that basis. This does not excuse the practice of investigatory stops dressed in the clothes of traffic stops, which this case may or may not have been. I am on record opposing veiled investigatory stops (this is the value of Epp et al’s book). But veiled stops are conducted across races. People are pulled over for all sorts of reasons, from the type of car they drive to the length of their hair. In any of these cases, the burden to show bias rests with those who claim to have been affected by it. The fact that blacks are disproportionately stopped is not in itself evidence of racial bias.