California court serves up explicit nonsense about implicit bias

A dubious concept, misapplied, offers criminals a novel way to avoid being convicted

A police officer in San Diego, California stopped a black driver. The driver admitted to the officer that he was carrying a concealed gun — a misdemeanor. Accordingly, he was charged.

California’s “Racial Justice Act” enables defendants to argue that some participant in the process against him exhibited racial bias. Defendants can seek relief regardless of whether the resulting discrimination was purposeful or unintentional.

In this case, the defendant alleged “implicit bias” on the part of the officer who detained him. However, the officer testified that when he signaled for the driver to stop he did not know the driver’s race.

The trial judge believed the officer’s testimony. He therefore rejected the black driver’s Racial Justice Act defense.

As I see it, there are two elements to the trial court’s decision: First, the conclusion that, as a matter or law, there could be no racial bias — intentional or unintentional, explicit or implicit —in the decision to stop the defendant if the officer didn’t know (or firmly believe) that the defendant was black. Second, the conclusion, that, as a matter of fact, the officer didn’t know (or firmly believe) the defendant was black.

The first conclusion seems indisputable. How can a cop act based on racial bias if he doesn’t know (or have a firm belief about) the race of the person he’s dealing with?

The second conclusion involves a determination of credibility. Such a determination, though it can always be questioned, seems like the province of the trier of fact.

Nonetheless, an appeal’s court overturned the trial judge’s ruling. The opinion is here.

The court of appeals disagreed with the conclusion that implicit racial bias requires knowledge (or a firm belief) of the race of the person a police officer is said to be biased against. It stated:

The trial court seems to have misunderstood this crucial element of the statute. To be sure, section 745 can be used to address a claim of purposeful discrimination. But plainly that is not a statutory requirement, nor is it even the primary object of the statute. By focusing on whether Officer Cameron credibly testified that he did not know the occupants of Bonds’s car were Black when he initiated the traffic stop—or in its words, whether Cameron ‘committed perjury’—the court applied the wrong legal standard to the motion.

[The officer’s] claim of ignorance, if believed, might indicate that he did not intend to discriminate on the basis of race. But implicit bias is, by definition, unintentional and unconscious.

In my view, this doesn’t make sense. One cannot discriminate against a person on the basis of race, either intentionally or unintentionally, if one doesn’t know (or have a firm belief about) the person’s race. This seems clear from the ways psychologists test for implicit bias in this context.

According to this article by Gregory Mitchell, a law professor at the University of Virginia and possessor of a doctorate in psychology, the standard test for implicit bias is to flash a series of pictures of blacks and whites on a screen, along with positive and negative words. Implicit bias is measured by the extent to which respondents, in quickly pressing keys, associate positive words with white faces and negative words with black faces more often or more rapidly than they do the opposite.

If the standard test used to detect and measure implicit racial bias uses images that show people’s race, it’s hard to see how the concept of implicit bias can be applied in cases where the person alleged to have that bias doesn’t know the race of the person he’s allegedly biased against.

(I should add that the concept of implicit bias itself is a dubious one. Mitchell points out that tests for such bias have only “low to moderate test-retest reliability.” Furthermore, tests for implicit bias have little ability to predict who will and who won’t discriminate in a given situation. Indeed, some studies show that “high bias” persons behave more positively towards minorities than “low bias” persons. One such study involved police officers.)

It’s bad enough that California has injected a dubious concept into the criminal law. It’s even worse that an appeals court has now misapplied the concept.

The appeals court also invoked the concept of implicit bias to question the court’s factual determination that the officer didn’t know the defendant’s race. It said that implicit bias can be found in assumptions people make, such as assumptions about the neighborhood where the stop occurs or the clothes a suspect is wearing. In this case, the officer knew the defendant was wearing a hoodie when he stopped him and the neighborhood apparently was mostly black.

It’s certainly possible that the officer, relying on the racial composition of the neighborhood and/or the defendant’s attire, concluded before stopping the defendant that he was black. But it’s also possible that he didn’t.

It was up to the trial judge to weigh the “implicit bias” evidence — all of which was admitted — against the officer’s testimony that he didn’t know the defendant’s race. The trial judge believed the officer. Nothing I see in the appeals court’s decision provides a sound basis for reversing that finding of fact.

In my view, then, the appeals court’s reversal isn’t based on any error of law or “misunderstanding” of the Racial Justice Act by the trial court. It’s based simply on the court’s disagreement with the trial judge’s assessment of credibility, an improper grounds for reversal.

Which leads me to wonder: If a trial judge can’t uphold a conviction based on a standard credibility determination, how is the prosecution supposed to disprove the presence of bias in a case like this? For that matter, what about convictions arising from stops where the officer knew the defendant is black — the more usual case? Will the prosecution have to prove that the officer wasn’t plagued by “implicit bias.” If so, how will the prosecution go about proving a negative?

If liberals are serious about curbing gun violence in America, they should not be erecting specious barriers to prosecuting cases of unlawfully carrying a concealed weapon. And if they are serious about reducing crime, they should not be injecting the dubious concept of “implicit bias” into the criminal law, much less compounding the error by misapplying the concept.

Unfortunately, liberals are not serious about curbing gun violence and crime generally if it means — as it certainly does — punishing blacks for their violations of the criminal law.