Disparate-Impact Liability for Policing.

• Author: Tiwari, Alisa

NOTE CONTENTS INTRODUCTION 254 I. APPLYING DISPARATE-IMPACT PRINCIPLES TO POLICING 260 II. A FRAMEWORK FOR STATUTORY INTERPRETATION 267 A. The Legislative Mandate: Griggs and Davis 268 B. Finding Disparate-Impact Liability 271 1. Congress's Understanding of "Discrimination" 271 2. Congressional Objectives and Statutory Purpose 274 3. Subsequent Legislative Actions 277 4. Administrative Interpretation 278 5. Textual Analysis 279 III. THE SAFE STREETS ACT INCLUDES DISPARATE-IMPACT LIABILITY 280 A. Congress's Understanding of "Discrimination" 281 B. Congressional Objectives and Statutory Purpose 283 C. Subsequent Legislative Actions 287 1. Amendments to the SSA 287 2. Subsequent Lawmaking on Police Reform 291 D. Administrative Interpretation 292 E. Textual Analysis 294 IV. IMPLICATIONS 300 A. The SSA's Private Right of Action 300 B. Circumventing Title VI 302 CONCLUSION 306 INTRODUCTION

In Baltimore, an African American man in his mid-fifties was stopped thirty times in less than four years. (1) Sometimes, police officers claimed that he was "loitering." (2) Other times, they said that he was "trespassing" or that the stop was part of a "CDS investigation." (3) After the initial stops, officers detained him at least fifteen times while they checked for outstanding warrants. The man, however, was never found to be doing anything wrong. None of the thirty stops resulted in a citation or criminal charge. (4)

What could he do? Police officers seemed to be targeting him and other black individuals through stops and other enforcement activities. He might consider filing an equal protection claim, but his lawsuit would be unlikely to succeed without additional evidence of racial animus. He could contact the police department to complain or join news outlets and community activists in lobbying the city for reform. But such efforts had not inspired much change in Baltimore. (5)

For decades, the Baltimore Police Department (BPD) "hounded black residents who make up most of the city's population, systematically stopping, searching and arresting them, often with little provocation or rationale." (6) Though constituting only 63% of the city's residents, African Americans accounted for 84% of BPD's pedestrian stops, 82% of vehicle stops, 86% of arrests, and 88% of nondeadly uses of force. (7) These disparities did not appear to serve legitimate public-safety ends. For example, despite stopping and searching African Americans at significantly higher rates, officers in Baltimore "found contraband twice as often when searching white individuals" in vehicle stops and 1.5 times as often in pedestrian stops. (8)

Baltimore is not an anomaly, and its racial disparities did not result from the actions of a few officers. U.S. Department of Justice (DOJ) reports have exposed similarly striking disparate racial impacts in law-enforcement activities across the country, from Newark, New Jersey to Los Angeles County, California. (9) Such racially disproportionate impacts have, at times, been "so severe and so divergent from nationally reported data that [they] cannot plausibly be attributed entirely to the underlying rates at which these [individuals] commit crimes." (10) Those reports also indicate that racial disparities often result from institutionalized police practices, such as Ferguson's strategy of revenue generation through policing" or Baltimore's "zero tolerance" strategy that encouraged officers to take discretionary enforcement action, including stops, searches, and arrests against misdemeanor offenses like loitering and disorderly conduct. (12)

Despite such disparities and general concern over racial bias in policing, there is almost no use of antidiscrimination law--let alone discussion of disparate-impact law--in creating systemic change. To vindicate the Fourteenth Amendment's promise of racial equality, private individuals generally rely on Section 1983, which allows them to sue local public entities for violations of rights created by the Constitution or federal statutes. (13) These lawsuits are difficult to win, however, because equal protection claims require proof of "discriminatory purpose," which is notoriously difficult to demonstrate. (14) The federal government has a sharper array of tools, but they too come up short. Section 14141 of the Violent Crime Control and Law Enforcement Act of 1994 authorizes the U.S. Attorney General to sue for equitable and declaratory relief when there is a reasonable basis to believe that law-enforcement officials have engaged in a "pattern or practice" of deprivation of constitutional or federal statutory rights. (15) DOJ's use of Section 14141, however, is contingent on presidential support, (16) and resource limitations prevent DOJ from investigating many of the complaints it receives, likely leaving much unlawful conduct unaddressed. (17) Tide VI's prohibition of racial discrimination in federally funded programs theoretically provides another federal avenue for change. (18) Title VI, however, is vastly underutilized as a federal enforcement mechanism, (19) and DOJ has avoided using the law to terminate police-assistance funds, making its prohibition somewhat toothless. (20) As a former senior DOJ official commented, "Title VI, at the end of the day, is more of a threat than anything else." (21)

This Note argues that we can begin changing this state of affairs--holding police departments accountable for their disparate racial impacts--through the use of an often-overlooked statute: the Omnibus Crime Control and Safe Streets Act of 1968 (Safe Streets Act or SSA). (22) The SSA is the "national government's first major piece of crime control legislation." (23) Through the SSA, Congress provided block grants to state and local law-enforcement agencies "to assist [them] in strengthening and improving law enforcement," (24) which restored a "critical degree of funding power to the states in the aftermath of Jim Crow." (25) Five years later, through the Crime Control Act of 1973, Congress amended the SSA to prohibit state and local governments that receive funds from discriminating in programs or activities funded in whole or in part by the federal government. (26) Indeed, the SSA's antidiscrimination provision provides that no person "shall on the ground of race, color, religion, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under or denied employment in connection with any [funded] programs." (27) The remedies for noncompliance include suspension, termination, and repayment of funds. (28) This is meaningful given that most major police forces, from Baltimore to Chicago, receive copious funding. (29)

DOJ is the only entity, to date, to justify a disparate-impact framework under the SSA. Generally, DOJ implements this framework in its "findings reports," which are documents describing systemic legal violations found after pattern-or-practice investigations into police departments. For support, DOJ cites its implementing regulations. (30) These regulations clearly assert that disparate-impact claims are cognizable under the SSA, drawing regulatory power from the underlying statute, the text of which prohibits "discrimination" but does not explicitly create liability for disproportionate racial impacts. (31) DOJ has also on occasion cited cases for support, but those cases do not expressly substantiate disparate-impact liability under the SSA. (32)

Scholarly literature has explored neither the legal footing nor the scope of this power. Indeed, while literature exists on the general topic of disparate impact, no studies provide a concrete way to apply a disparate-impact regime to policing. Further, while several articles have attempted to detail legal tools for reforming discriminatory policing, no studies to date have thoroughly examined the SSA. Some scholars note that DOJ has opened investigations and made findings under the SSA, (33) and a handful of scholarly commentaries have mentioned disparate impact and the SSA in passing. But these pieces do not analyze whether the SSA authorizes disparate-impact claims. (34) Instead, they simply assume that it does.

This Note aims to fill that gap. It provides an initial attempt to justify disparate-impact liability in the realm of police reform, developing the only structured analysis of the SSA's power to curb discriminatory policing as well as the first legislative history of the Act's antidiscrimination provision. The Note argues that the SSA's prohibition of discrimination in law-enforcement agencies does, in fact, proscribe unjustified disparate effects, similar to Title VII. In examining the scope of this power, the Note contends that the SSA provides an unrecognized remedy for discriminatory policing: individuals can use its private right of action to enforce the aforementioned disparate-impact prohibition. In doing so, this Note presents the Act as a formidable tool for practitioners.

The Note's analysis unfolds in four Parts. In Part I, the Note provides background on disparate-impact principles and contemplates whether the law should apply such principles in the realm of policing. It claims that the justifications for creating disparate-impact liability in traditional domains apply equally well to policing.

Part II develops a statutory-interpretation framework for analyzing the SSA based on Supreme Court cases interpreting the antidiscrimination provisions of other statutes. It elucidates the Court's theory of finding disparate-impact liability, which focuses primarily on congressional intent, and highlights how that theory remains prevalent today through various interpretive tools.

In Part III, the Note considers whether the SSA's discrimination prohibition reaches disparate racial impacts. Using the framework established in Part II, it conducts the inquiry by examining the historical meaning of "discrimination," congressional objectives in...