by Hans Bader

After the murder conviction of the policeman who killed George Floyd, Virginia’s progressive politicians are calling for passage of the George Floyd Justice in Policing Act, which would allow police departments to be sued when police stops aren’t racially and sexually balanced.

Congressman Bobby Scott (VA-03) said, “This verdict is a start, but it does not absolve Congress and the federal government of our responsibility to reform policing across the country, and it is a reminder of the need for the Senate to pass the George Floyd Justice in Policing Act.”

Virginia’s senior Senator, Mark Warner, called on his Senate colleagues to pass the George Floyd Justice in Policing Act: “George Floyd’s life mattered. Justice has been served…we owe it to Mr. Floyd, his family, and far too many others like him to take meaningful action to reform our policing system. We can start by passing the George Floyd Justice in Policing Act.”

Joe Biden also backs this bill. But it has a downside: it could lead to more racial and sexual profiling, such as gender-based stops of female motorists, or racial or gender quotas for police stops.

The Justice in Policing Act encourages police departments to adopt quotas based on gender and race for “traffic stops,” “pedestrian stops,” and “interviews.” The practical effect would be to encourage police departments to stop innocent women, Asians, and whites, just to meet quotas based on gender and race. If police departments don’t meet these quotas, they could be sued by the Justice Department or individuals they stop.

Section 311 of the Act forbids what it calls “racial profiling.” This is defined to include not just race, but also “gender” in Section 302(a)(6) of the bill. But it defines “profiling” in such a crudely-mechanical way that actually encourages profiling, rather than outlawing it.

Under the bill, what matters is numbers and racial bean-counting, not actual racism or sexism. “Disparate impact” in police stops or interviews based on race or gender — for example, stopping more men than women, or interviewing more blacks than Asians or whites — is defined as “prima facie evidence” of a “violation.” That means that numbers alone are enough for a judge to find a police department in violation of the Act. Prima facie evidence is a legal term meaning that the person suing has provided enough evidence to prove something, in the absence of proof to the contrary by the entity being sued, which bears the burden of proving itself innocent.

The bill’s strange definition of profiling would render all police departments presumptively in violation of the Act, because men speed more than women virtually everywhere (which is one reason that auto insurance companies charge men more than women — men are more likely to get into a destructive high-speed crash, and violate traffic laws more than women (for example, men wear seat belts at a lower rate). Men also commit crimes at a higher rate. Yet stopping men at a higher rate would be deemed suspect under the bill.

The bill also ignores the fact that there are racial differences in crime rates and traffic violations. Different races wear their seat belts at different rates. Asians have the lowest crime rate, on average, while blacks generally have the highest, and whites are in between. As the Supreme Court noted in U.S. v. Armstrong, crime rates differ by race. That’s why arrest rates differ by race, as a recent federal study of violent crime shows. Yet the bill treats stopping fewer Asians than whites, or fewer whites than blacks, as suspicious.

So all police departments everywhere are presumptively guilty under the bill. The bill doesn’t explain how they can possibly rebut this presumption of guilt or prove themselves innocent. So if they wish to avoid being sued, and avoid being forced to pay the attorneys fees and expert-witness costs of the person suing them, police departments will have an incentive under the bill to stop only as many men as women — even if more men are speeding or committing crimes — and to adopt racial quotas in police stops.

That could undermine road safety by encouraging police to ignore speeding or other violations just because they were committed by members of a particular gender or race. (The bill does say that police can search for offenders of particular races if an offender with that racial characteristic was involved in an “identified criminal incident.” But speeding is usually not a criminal offense.)

It is unconstitutional to have racial quotas in punishment or arrests. For example, an appeals court ruled it was unconstitutional to require a local government not to punish a higher percentage of one race than another race because that amounted to a racial quota. The court struck down as unconstitutional a provision that forbade a “school district to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code,” concluding that that constituted a forbidden racial quota. As it noted, “racial disciplinary quotas violate equity” by “either systematically overpunishing the innocent or systematically underpunishing the guilty.” (People Who Care v. Rockford Board of Education (1997)).

One could argue that the Justice in Policing Act only encourages — rather than requires — quotas. That’s because numbers amount only to “prima facie evidence,” not conclusive evidence. But even incentives to have quotas are unconstitutional. An appeals court ruled that it is unconstitutional to incentivize racial and gender quotas through investigations and audits, even if they aren’t strictly required. (See Lutheran Church-Missouri Synod v. FCC (1998).

The bill’s encouragement of quotas is reinforced by other provisions of the bill. Section 114(d)(1)(C) funds pilot programs based on factors such as whether a police department avoids “disproportionate minority contact.” But there is nothing nefarious about “disproportionate minority contact,” if victims and offenders are disproportionately black. Blacks are disproportionately victims of crimes, usually committed by other black people. The FBI says that 47% of murderers and 45% of murder victims were black in 2018, even though blacks make up only 13% of the U.S. population; 89% of black victims are killed by black offenders. So eliminating “disproportionate minority contact” could harm minorities most.

Hans Bader is an attorney living in Northern Virginia.