An unpersuasive case against the Phoenix PD

Missing context undermines the claim that the Phoenix Police Department should be removed from any measure of democratic control and accountability via a consent decree.

According to a group of civil rights lawyers in the federal Department of Justice, the Phoenix Police Department is rotten to the core and irredeemably so.

Phoenix cops, these bureaucratic lawyers allege, have itchy trigger fingers, resort to force without provocation or reason, and discriminate broadly against blacks and Latinos, among other offenses against the Constitution and the law. 

Simply put, I don’t believe it. And the report they issued falls far short of making a persuasive case. Particularly for as radical of a remedy as removing the Phoenix PD from any measure of democratic control or accountability. 

Let me begin, however, with some concessions and stipulations.

First, the process for disciplining police misconduct in Phoenix doesn’t work very well, although not for the reason usually expressed. The problem isn’t the lack of effective civilian oversight. The problem is a union contract that sets forth a multi-tiered disciplinary process that is overly complicated and protective of the cop whose behavior is being questioned. The scales are weighted against effective supervisory management. 

Second, there’s undoubtedly a macho culture within the department that leads to periodic excesses. Given the job, taking on bad guys and protecting the public, that would seem inevitable and even, to a certain degree and within bounds, desirable. 

And third, I don’t doubt that blacks and Latinos are more subject to pretextual stops than whites. Implicit bias is a thing, even if not as dominant a thing as the woke ideologues contend. 

However, the DoJ’s lawyers claim that there is such a pattern or practice of unconstitutional and illegal conduct that control of the Phoenix PD should be removed from the City Council and the city manager and turned over to a federal judge, an appointed judicial overlord, and a bevy of high-priced consultants. 

To make the case, the report cites scores of instances in which, the DoJ’s lawyers maintain, the Phoenix Police Department behaved unconstitutionally or illegally. Now, it is important to note that these bureaucratic lawyers aren’t judges. These aren’t legal findings rendered after an adversary proceeding in which both sides offer evidence. In fact, the DoJ didn’t even give the city a chance to review the report in advance to potentially contest the specifics of some of the reported incidents, as is customary in an audit, which this report resembles more than a true judicial proceeding.

But a finding of a pattern or practice of illegal police behavior means that it is a norm, not an aberration from the norm. And that requires quantitative evidence, which is scant and poorly considered in the DoJ report. What is particularly missing is important context. Some of the missing context is so obvious that its omission would seem purposeful. 

There are a hundred or so individual cases in the report of alleged illegal behavior by the Phoenix PD covering various periods ranging from 2018 to today. However, by way of context, Phoenix cops arrest tens of thousands of individuals every year. 

A word here about the potentially misleading nature of percentage differences in small numbers. The difference between a 1 in a thousand occurrence and a 2 in a thousand occurrence is 100%. But the difference, while a large percentage, isn’t really meaningful.

Take police firing their weapons at a suspect. During the study period, they ranged from an annual high of 44 to a low of 13. In other words, they are very infrequent affairs. The difference year to year within a department, or between departments, doesn’t reveal much. And it’s worth noting that three-quarters of those at whom Phoenix cops shot also had a gun, something the DoJ’s bureaucratic lawyers were dismissive of. 

According to the report, the Phoenix PD used less-than-lethal force in 2,711 cases between January 2019 and April 2022. Again, that’s a small fraction of the total arrests made during that period. An informative context would be how this percentage of less-than-lethal force cases for the Phoenix PD compares to that of other major, urban police departments, but that won’t be found in the report.

The civil rights lawyers at DoJ have an obvious bias against what’s called broken-windows policing, and it leads to the most misleading use of statistics in the report.

Broken-windows policing holds that rigorous enforcement of low-level offenses creates safer and more livable environments and also reduces the incidence of high-level, predatory crimes. 

The report bristles with animosity toward enforcing low-level offenses, particularly in minority communities. The extent to which the Phoenix PD does so constitutes most of its alleged evidence of a pattern or practice of racial discrimination.

However, there is a large overlap between minority communities and high-crime areas. It is too frequently overlooked that minorities are disproportionately victims of crimes. 

The Phoenix PD isn’t responsible for this overlap and shouldn’t shy away from doing its job because of it. There should be more extensive policing in high-crime areas, which given demography, means there will be disproportionate numbers of minorities caught committing low-level offenses.

The bureaucratic lawyers attribute all of this to racial discrimination, ignoring the overlap between minority communities and high-crime areas. However, they completely undermine their case when they note that, in minority communities, enforcement of low-level offenses is higher “regardless of race”. In other words, whites in high-crime areas are also more likely to be cited for low-level offenses. That’s evidence of more proactive policing in high-crime areas, not racial discrimination. 

The lack of context is most pronounced in the section dealing with how the Phoenix PD has responded to protests. There were some excesses committed, particularly conjuring up a street gang for the purpose of filing charges against some of the protesters. 

However, there is nary a word in the report about how dangerous a situation the community confronted in the days of the George Floyd protests. Protests in many cities erupted into lawless street violence and looting that lasted for weeks. 

In the Phoenix metro area, windows in downtown office buildings were smashed and police vehicles vandalized. Protesters broke into Scottsdale Fashion Square and engaged in large-scale destruction and looting. Gov. Doug Ducey declared a 8 p.m. curfew and called out the National Guard.

In such ignitable circumstances, protecting public safety and property can require more than the DoJ’s prescribed approach of doing nothing but arrest specific law-breakers after the fact. Something more proactive and preventative was required. Innocents are inevitably caught up in that. These are lines difficult to draw in the moment and easy to second-guess in retrospect.

According to the report, the county attorney’s office refused to prosecute many of the charges levied against the protesters and many of the other incidents cited. Here was a missed opportunity to potentially quantify and document a serious problem, if one exists.

I accept the county attorney’s office declining to prosecute as an indication that the cops overcharged or engaged in some prejudicial conduct jeopardizing a prosecution. A relevant inquiry would be what percentage of Phoenix PD referrals are declined, and how does that compare to other Valley departments and other major urban police forces. That, which is missing in the report, would be far more relevant to determining whether there is a pattern or practice of illegal policing than the breakdown by race of citations for riding a bike on the wrong side of the street, which is in it.  

The DoJ report is an attempt to publicly pressure the Phoenix City Council to enter into a consent decree. That usually works. Big-city mayors and city councils are overwhelmingly Democratic and defending the local police department against federal allegations of discriminatory enforcement just isn’t a Democratic thing to do.

The Phoenix City Council is similarly controlled by Democrats. Thus far, there has been surprising resistance to the DoJ intrusion. However, I won’t be surprised to see them ultimately yield to the political pressure. Contesting the DoJ in court would be expensive and unpopular among important Democratic constituencies.

Entering into a consent decree would, however, be a disservice to the people of Phoenix and the street cops who endeavor to keep us safe. When cops are subject to these kinds of oversight regimens, they start calling it in. You are never second-guessed for a stop not made. Proactive policing abates, particularly in high-crime areas, with the obvious and predictable consequences. 

It would also be a body blow to the principle of democratic governance. Those elected by the voters of Phoenix to manage city government would no longer be in control of its largest and most important function. Nor would they really still be in control of the city’s fisc. Those decisions would be made through some apparatus under the ultimate control of a federal judge. Ask the members of the Maricopa County Board of Supervisors how well that works.

As stipulated, there are problems in the disciplinary process and excesses occur. But, in context, the Phoenix Police Department each year responds to hundreds of thousands of calls, and makes tens of thousands of arrests, virtually all of them without any hint of police misconduct or illegal behavior. That’s the norm. That’s the true pattern or practice.

Phoenix cops aren’t trigger-happy, violent, racists. The Phoenix City Council shouldn't enter a consent decree premised on the claim that they are, in the process abdicating their responsibility for the governance of the city. 

Reach Robb at robtrobb@gmail.com.