CITIZEN GREEN: Will written consent stop the cops from over-policing black people?

Photo: Council members Sharon Hightower (center) and Goldie Wells listen to a comment by Greensboro Criminal Justice Advisory Committee member Tom Phillips (photo by Jordan Green)

After an October 2015, New York Times article held Greensboro up as a national example of shameful racial
disparities in traffic stops, then-Police Chief Wayne Scott announced the
department would discontinue stops for minor infractions like broken
taillights.

Brian
James, his successor, noted the change in a discussion with city council
members on Tuesday. Even before that, James said, the number of traffic stops
was on the decline, and it’s dropped from about 26,000 in 2015 to about 19,000
in 2019.

The trend
in Greensboro tracks with many of the state’s other large law enforcement
agencies, including the State Highway Patrol, Charlotte-Mecklenburg Police
Department and Durham Police Department.

But the trends in traffic stops are not all salutary. While the African-American share of Greensboro’s population has remained steady over the past decade at about 41 percent, their share of police traffic searches has increased from 68 percent in 2010 to 82 percent in 2019, compared to a decline from 25 percent to 13 percent for white drivers, according to statewide traffic-stop data published by the Southern Coalition for Social Justice on the Open Data Policing website.

It’s even
worse in Durham, where the black population is 39.5 percent, but the black
share of traffic searched has climbed from 78 percent to 88 percent, while
whites’ share has dropped from 11 percent to 7 percent.

Policing
that maintains these disparities is not fair, or effective: The contraband “hit
rate” for black and white drivers in Greensboro is exactly the same: 33
percent. In Durham, it’s 29 percent for black drivers and 26 percent for white
drivers.

These
disconcerting trends seem relevant to a growing discussion about whether
Greensboro should require police officers to obtain written consent from
drivers before conducting vehicle searches when they do not have probable cause.

The
Greensboro Criminal Justice Advisory Committee brought a recommendation to do
just that to city council on Tuesday, while also calling for a requirement that
officers verbally inform drivers of their right to refuse a search without any
consequence, much like a Miranda notice.

The Durham Police Department implemented a policy requiring completion of a consent form prior to conducting a vehicle or building search in October 2014. Unfortunately, the results can only be considered disheartening. A report on traffic-stop data published by the Durham Police Department showed that the gap between black and white drivers for consent searches virtually closed from January through June 2019, with less than 1 percent of stops resulting in searches for both groups. Yet probable cause searches, in which officers must articulate reasonable grounds, have surged against black drivers. A graph in the DPD report shows a probable cause search rate of 7 percent for black drivers, compared to less than 2 percent for white drivers. Academic researchers who study racial disparities in policing call it the “substitution effect.”

“In terms
of probable cause, officers use things that fall far short of seeing
contraband,” said Councilman Justin Outling, a lawyer by profession who
represents District 3. “For example, I was involved in a case in which the
probable cause offered by the officer was that ‘a black man lost the color from
his face.’… I’m just saying there’s a lot of leeway here.”

Whatever
the merits of a written consent policy, some council members signaled
resistance to any attempts to rein in harmful police practices.

“Can
someone tell me where this came from, because I’m a little confused, and here
we are trying to make a policy for our police department, which we are becoming
micro-managers for,” at-large Councilwoman Marikay Abuzuaiter said, adding that
she was “having some heartburn with this.”

Councilwoman
Tammi Thurm, who represents District 5, said she and at-large Councilwoman
Michelle Kennedy initiated the review, meeting several months ago with Chief
Scott. Thurm said she was concerned when Scott acknowledged that officers do
not tell drivers that they have the right to refuse a search. (The Fourth
Amendment of the Constitution guarantees the right to be free from unreasonable
search and seizure.)

“He said,
‘Well, we just ask them: ‘Hey, can we look in your car,’” Thurm recounted. “And
I asked him: ‘Do you ever tell them: ‘You have the right to say, no, we can’t
look in the car.’ And he said, ‘No, we don’t say that.’ And so that prompted me
to say, ‘Okay, we’re only talking about half of the right, and we’re not really
talking about their whole rights here.’”

Chief
James acknowledged what many council members left unspoken: that the issue
underlying the call for reform is racial disparity. But he hinted at a
counter-current against the relaxed policing model that has defined the past
five years.

“What
I will also tell you is that there’s also a disproportionality in where crime
is occurring,” he said. “We’re looking at where officers need to be. And I’ll
tell you: As I’m going around the community and talking to people, a lot of
people are saying, ‘We want to see you more in our community because we’re
having some crime issues.’ And a lot of time that activity is driven by calls
for service, and also by requests from citizens. So, will it solve the
disparity problem? I don’t know if it will.”

Council
members ultimately decided to postpone a decision, asking the Greensboro
Criminal Justice Advisory Committee to analyze a random sample of police body-camera
videos recording vehicle searches, and bring back a report. The call for
further study did not inspire confidence in Casey Thomas, a community member
who wants the city to adopt a written consent policy.

“We’re likely to hear the same argument when they come back: It’s fine because more crime is being committed in black communities,” she said. “Unless something really dramatic happens between now and then, I’m not sure that everyone will prioritize making the change just because it’s the right thing to do to fix a policy that violates black people’s rights.”

The Greensboro Criminal Justice Advisory Committee meets on Thursday at 6 p.m. at the Tannenbaum-Sternberger Room. Community members plan on showing up to advocate for a written consent policy and de-prioritizing enforcement of marijuana laws.