Confronting Discrimination through Police Statistics

The German Black Lives Matter protests, recurring reports of right-wing extremist police chat groups, and racial profiling have led to increased discussion of structural racism within the German police authorities. Although ra­cial discrimination is prohibited under Article 3(3) of the Basic Law, legal recourse against discrimination involves serious eviden­tiary challenges. After all, state officials are unlikely to simply admit to discriminating against a per­son on racial grounds. While the legal concept of ‘indirect discrimination’ was introduced to overcome this eviden­tiary difficulty, indirect discrimination is also difficult to establish. Particularly with inequalities that are either de­nied or overlooked by society as a whole, anti-discrimination statistics appear necessary to prove such disparate impacts. Due to scarcities of time and financial resources and not being privy to official decision-making and control practices, individuals often find it impossible to compile relevant statistics. Unlike in Canada and England, German authorities do not collect data on ‘race’ or ‘ethnic origin’. Although a future study on racism within the police has been planned by the Ministry of the Interior, information on potential racist control practices is not anticipated. 
In response, this dissertation examines whether the German state is obliged to collect such anti-discrimination data to facilitate fundamental rights enforcement. This question is examined against the backdrop of event-independent identity checks in so-called ‘dangerous places’, which grant police broad discretionary powers due to their low intervention thresholds. Based on analyses of these legal provisions and qualitative social science stud­ies on police control practices, the project first examines the enhanced discrimination potential of these official bases of authorization. It then undertakes a dogmatic, anti-discrimination legal classification of police control practices before examining the legal basis for a possible state obligation to compile anti-discrimination statistics. Finally, the legal possibility and risks of corresponding data sets are examined, including the statistical recording of intersectional discrimination and the possible statistical reproduction of stereotypes.
Positioned at the core of the Public Law Department’s research commitment to addressing new and emerging chal­lenges to fundamental rights, this interdisciplinary project relies heavily on dogmatic analyses of constitu­tional law and careful application of empirical research on police discrimination. Expected outcomes include sharp­en­ing our understanding of constitutional prohibitions on discrimination and validating statistics as a reliable method for improving fundamental rights protection against discrimination.