In the end, I agree with Justice Huffman that an evidentiary hearing under the Racial Justice Act was required. Maybe the police officers didn't, in fact, pull over Elijah Johnson's vehicle for illegally tinted windows (and subsequently discover an illegal weapon) because he was African-American. But maybe the converse is true, and perhaps implicit racial bias did play a role in pulling him over. This requires a factual hearing where the court sorts through the evidence, and here, given the underlying evidence, I agree that there's at least a prima facie showing. So let's do the hearing and decide the facts.
I also completely agree with Justice Huffman when he says, on page 17 of the opinion: "Although we agree with the People that the
statistical evidence alone would not be sufficient to show Watson’s and/or his
fellow officers’ stop and search of Jackson was the product of racial bias (see
Bonds, at p. 831), the data provided a lens through which the trial court
should have viewed the other evidence provided by Jackson, especially at the
prima facie stage."
There's a fair piece of statistical evidence about the disproportionate use of pretextual traffic stops against minorities. That does indeed provide a helpful "lens" through which to view any particular traffic stop. As the opinion notes, here's the relevant evidence from my town, San Diego:
"[T]he data provided by Jackson clearly shows a stark disparity in the treatment
of Black people pulled over by the SDPD compared to white people. For example, once stopped by the police, Black people were searched 2.6 times as
often as their white counterparts. Regarding traffic stops of Black people, 37
percent of stops by the SDPD were for equipment stops and 12 percent were
for license/registration stops compared to 20 percent and 7.7 percent of the
stops respectively for white people. And 72 percent of the SDPD stops of
white drivers was for moving violations, but only 51 percent of stops of Black
drivers was for that same reason. Once stopped, Black people were arrested
1.7 times as often as white people, and they were also 1.5 times as likely to be
released with a warning or no action taken. Additionally, statistics were
offered showing that although Black people make up only 6.2 percent of the
population of San Diego, the comprised 23 percent of all people stopped
between 2018 and 2020."
That's a fairly stark disparity, and provides a significant "lens" through which to view things.
Though, to be clear, there are substantial limitations on those statistics. They're definitely not the be-all-end-all, either regarding a particular traffic or even traffic stops in general. For example, the fact that "once stopped by the police, Black people were searched 2.6 times as often as their white counterparts" might perhaps be due to racial bias, or might perhaps be neutrally explained by there being a greater basis for a search in one particular data set, or perhaps a combination of these two factors (in uncertain portion). Similarly, the data about differential rates of equipment and registration stops could perhaps be due to racial bias, but might alternately be explained by economic factors. Poorer people might more often have expired registration or noncompliant equipment on their vehicles, and in turn, if African-Americans in San Diego tended to be poorer compared to their white counterparts, that might explain (in whole or part) why Black drivers were more likely to be pulled over for registration violations than white drivers.
The point is this: correlation is not causation, and statistics can only show so much. They might well give us reason to pause, and reason to inquire deeply whether implicit or explicit bias might well be in play. But there are confounding, complicated factors in play as well. It's difficult to separate the two, and one must be careful not to jump to hasty conclusions. In either direction.
I was also struck by another comment that Justice Huffman made. He says: "While heading into the smoke shop, Jackson was accompanied by his
younger brother, who also is Black and was wearing red pants. Watson noted
that the color red was often worn by gang members in the area. . . . The police noticed Jackson’s brother’s red
pants and speculated that they might be gang members, specifically they
might be members of the Skyline Piru, a blood set gang. This speculation is
consistent with the police’s previous interactions with Jackson’s brother
where they repeatedly questioned his gang involvement. Further, this
speculation appears to be linked to the fact that Jackson’s brother is Black."
Well, yes and no, I think. Did the fact that Jackson's brother was wearing red pants, is Black, and was present in Skyline (a high-crime area in San Diego with a hefty gang presence) likely lead the police to suspect that Jackson and his brother might be gang members? Yes, I'm confident that it did. You generally don't wear red in that part of town unless you're (1) an idiot, or (2) willing to back it up, typically because you're associated with that particular gang. And did their race add to the suspicion that they might be members of Skyline Piru, a blood set gang? Again, honestly, yes, 100%. Because the stark reality is that, as a factual matter, the Skyline Pirus are an African-American gang, and it's just true that the overwhelming members of that gang are Black. If you saw me in red pants in Skyline going into a smoke shop, the fact that I'm white would, by itself, not prove that I'm definitely not a member of the Skyline Piru gang. But that fact, among other things, would definitely be relevant to whether you thought I was a member of that gang. Ditto for my age, the clothes I wear, etc. There are some characteristics, and those may sometimes include race, that are not the result of racial prejudice or bias, but rather simply reflective of the world. Few white supremacists are Black. Few members of the Skyline Pirus are white. That's just the world in which we live. Not because it confounds race with correlated attributes (e.g., economic wealth) or because it relies on racist stereotypes (e.g., intelligence or criminality). But simply because communities, in fact, sometimes order themselves that way. When you're pondering whether someone who's wearing red pants in Skyline is a gang member or not, it's not racist or a product of implicit or explicit racial bias, IMO, to include in your calculus that person's race. The fact that they're Black doesn't mean (at all) they're in a gang, but the fact that they're 58 and white might well be something that one could rationally consider in evaluating the likelihood that the person you're viewing is, in fact, a member of the Skyline Pirus. Quite frankly: He's probably not. Because the Skyline Pirus don't generally tend to accept that sort of person into their group. (Ditto for the white supremacist gangs and African-Americans.)
So you gotta be careful, I think, in this area. Statistics are helpful, but not dispositive. And the fact that the "speculation [that the person wearing red pants] appears to be linked to the fact that [he] is Black" is not necessarily the result of racial bias, notwithstanding the fact that it's self-referentially linked to the person's race. Again: You gotta be careful.
That's how I'll end the short month of February, anyway.
