Implicit Bias at the Point of Contact: Refereeing and Police Encounters with the Public

By Professor Eric Miller

This post originally appeared on Prawsblawg.

Since the World Cup is over, and the best team won, this is my last post on soccer, refereeing, and policing, I promise.

This is my last post on soccer, refereeing, and policing, I promise. In the dying minutes of the group-stage game between Ivory Coast and Greec, the Greek striker Samaras tangled with an Ivory Coast player, and the referee awarded a penalty. Foul? Flop? The penalty certainly looked really soft. What provoked some ire from my friends on Facebook was, not only the fact that the penalty seemed to be an overreaction, but that it was an overreaction to a foul committed by a black person on a white one. Was bias at play here.

The—by now familiar—answer is: probably. My buddy Song Richardson has written some great articles explaining how implicit bias works. Because officiating requires the referee to make instant fact-based determinations in highly stressful circumstances, these judgements prove susceptible to an unconscious, implicit bias. Implicit biases affect all of us, regardless of our race. But they impact us in strikingly racially differentiated ways.

Richardson is concerned to demonstrate the relevance of recent innovations in cognitive science for the Fourth Amendment in general, and police encounters with racial minorities (primarily African Americans) in particular. Her argument is both simple and powerful: the current Fourth Amendment doctrine on stop-and-frisks promotes a form of policing that is racially biased and practically inefficient. The cause of the inefficiency is unconscious cognitive biases that the officer may not be aware of; the problem is that such biases decrease the efficiency with which an officer is able to separate criminal from non-criminal activity.

She identifies two sources of cognitive bias as particularly problematic in the Fourth Amendment context: (1) perception bias, which is the degree of hostility or aggressiveness that a subject attributes to a target varies based on the target’s race; and (2) attention bias, which is the speed with which an observer notices the conduct of a target based on the target’s race. Importantly, African Americans are perceived as more hostile and attract attention more quickly than their white counterparts. Perception and attention bias operate no matter what the race of the observer.

Perception and attention bias have important Fourth-Amendment side-effects: they render officers more inclined to perceive the same equivocal conduct as suspicious when engaged in by African Americans rather than whites.

Arguably, the same thing happened in the Ivory Coast game. Contact that would be ignored, or if not ignored, then treated as incidental if it was between whites, or white on black, was treated as aggressive physical harm when perceived as initiated by a black player on a white one. The conclusion suggested by the implicit bias literature is that referees are likely to police more often and more harshly contact-based infractions by minorities than by others, and to do so independent of the race of the referee.

Richardson made another, counter-intuitive, but extremely powerful point at a recent conference. She suggested that recent experiments demonstrate that when officials are confronted or challenged by minorities, then—ironically—those most aware of implicit bias are those most likely to react most harshly and most quickly. One explanation might be that the official feels unable to rely upon their moral authority (because, conscious of their implicit biases, they believe this is a circumstance in which they lack moral authority) and so they turn to other sources of authority. In the case of cops, this means their physical authority or "command presence." In the case of the referee, this would mean their authority to impose a yellow or red card.

There is, however, a middle ground left to be covered. One remaining question is whether the rapid and violent turn to "command presence" has a gendered aspect? Frank Rudy Cooper and Angela Harris's work on masculinity and the police suggest that it might be. Another is whether officials aware of implicit bias are less likely to confront minorities than other officials? That is, knowing their propensity to over-react when confronted by physical contact or other indicia of misbehavior, they might simply under-enforce the law. Is that a good thing? A bad thing?

A central feature of policing is whether and at what point the official seeks to intervene and diffuse potentially problematic situations. For the most part, these choices happen at the "encounter" stage, before the Fourth Amendment is implicated. There is certainly a question, given different policing styles (rapid response, radio car policing, foot patrols, hot-spot policing, and so on and so forth) whether there are many encounters outside the Fourth Amendment any more—at least, those that are not staged, checkpoint style, at bus stops in the butt end of Florida (or some other spot along I-95).

Encounters provide an opportunity for the police to engage in egalitarian, perhaps consensual, perhaps contested and unruly, interactions with the public. But the implicit bias literature suggests that the racially reflective officer may perceive certain encounters escalating more rapidly and more violently than other officers. If a resort to a forceful command presence is a masculinist response, then that only goes to raise more questions about the nature of policing and low-level interactions with the public.

Given what I think is the strong democratic possibilities for encounters, and the possibly gendered nature of the violent response, some attention to policing styles during the encounter phase is long overdue. Policing style matters, both at the point at which the police engage with the public, and also when they don’t: when they avoid engagement or disengage. Encounters form perhaps the front line of this decision to engage or disengage; and encounters are often used to escalate policing into something more intrusive than informal badinage on the street. Richardson's scholarship gives us one route by which encounters escalate. We should, I believe, also think about ways to de-escalate encounters, and use them as a focal point of contact between state and citizen. But a theory of policing for that style of encounter must, I believe, include notions of non-domination and contestation that lead us down the path of civic republicanism. But that is for another post.