On August 9, 2014, Michael Brown, an 18-year-old black man, was fatally shot by Darren Wilson, a white police officer in Ferguson, Missouri, a small city in St. Louis County. The shooting sparked nationwide protests and attention to police use of force and police/African-American relations.
The Prosecuting Attorney for St. Louis County, Missouri, brought the case in front of a grand jury to determine whether there was probable cause to indict Wilson for his actions. But on November 24, it was announced that the jury had declined to indict Wilson. A federal criminal investigation of Wilson also proceeded.
As the criminal investigations were moving forward, on September 4, 2014, the Civil Rights Division of the U.S. Department of Justice opened an investigation of the Ferguson Police Department (FPD). The investigation was initiated under the pattern-or-practice provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d ("Safe Streets Act"), and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI").
On March 4, 2014, the DOJ announced that there would be no federal criminal civil rights prosecution. It concluded that there was insufficient evidence to disprove Wilson's claim that he (reasonably or not) feared for his safety. Accordingly, it reported, "Wilson's actions do not constitute prosecutable violations" of federal civil rights law. That same day, the DOJ announced the opposite results in its civil investigation. The DOJ Report concludes:
"Ferguson's law enforcement practices are shaped by the City's focus on revenue rather than by public safety needs. This emphasis on revenue has compromised the institutional character of Ferguson's police department, contributing to a pattern of unconstitutional policing, and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harm on members of the Ferguson community. Further, Ferguson's police and municipal court practices both reflect and exacerbate existing racial bias, including racial stereotypes. Ferguson's own data establish clear racial disparities that adversely impact African Americans. The evidence shows that discriminatory intent is part of the reason for these disparities."
The report explained that Ferguson's municipal court "operates as part of the police department. The court is supervised by the Ferguson Chief of Police, is considered part of the police department for City organizational purposes, and is physically located within the police station. Court staff report directly to the Chief of Police. Thus, if the City Manager or other City officials issue a court-related directive, it is typically sent to the Police Chief's attention." While the court Judge does not report to the police chief, the court clerk does, and the report explains that "the Court Clerk and assistant clerks routinely perform duties that are, for all practical purposes, judicial. For example, documents indicate that court clerks have disposed of charges without the Municipal Judge's involvement."
The report devotes 80 pages to its investigative findings, which allege systemic constitutional violations of numerous types:
- unlawful stops without reasonable suspicion, and arrests without probable cause
- excessive force, particularly with the use of Tasers and canines, and against people with mental illness and intellectual disabilities
- retaliation for First-Amendment protected speech and advocacy
- illegal prevention of citizen recording of police encounters
- violations of due process by punishing and even jailing people based on their opposition to the charges against them (for example, if they assert constitutional defenses) or on simple inability to pay fines
The report connects all of these policing failings to what it labels "FPD's weak systems of supervision, review, and accountability," which "have sent a potent message to officers that their violations of law and policy will be tolerated."
With respect to the municipal court, the report highlighted "barriers to resolving a case that court practices impose, including: (1) a lack of transparency regarding rights and responsibilities; (2) requiring in-person appearance to resolve most municipal charges; (3) policies that exacerbate the harms of Missouri's law requiring license suspension where a person fails to appear on a moving violation charge; (4) basic access deficiencies that frustrate a person's ability to resolve even those charges that do not require in-court appearance; and (5) legally inadequate fine assessment methods that do not appropriately consider a person's ability to pay and do not provide alternatives to fines for those living in or near poverty. Together, these barriers impose considerable hardship." Moreover, it alleged, "Current bond practices are unclear and inconsistent. Information provided by the City reveals a haphazard bond system that results in people being erroneously arrested, and some people paying bond but not getting credit for having done so."
The report attributed all of these policing/court problems to two overarching sources. First, the report argued, Ferguson used its police and municipal court process as revenue raisers: tickets and warrants are treated as sources of funding, not promoters of public safety or order. Second, the burdens imposed by this approach disproportionately harmed African Americans, and, the report argues, this stemmed in part from intentional discrimination in violation of the Constitution.
The report devotes considerable attention to the disparate effects of police and court practices. E.g.: "African Americans experience disparate impact in nearly every aspect of Ferguson's law enforcement system. Despite making up 67% of the population, African Americans accounted for 85% of FPD's traffic stops, 90% of FPD's citations, and 93% of FPD's arrests from 2012 to 2014." And:
- African Americans are 2.07 times more likely to be searched during a vehicular stop but are 26% less likely to have contraband found on them during a search. They are 2.00 times more likely to receive a citation and 2.37 times more likely to be arrested following a vehicular stop.
- African Americans have force used against them at disproportionately high rates, accounting for 88% of all cases from 2010 to August 2014 in which an FPD officer reported using force. In all 14 uses of force involving a canine bite for which we have information about the race of the person bitten, the person was African American.
- African Americans are 68% less likely than others to have their cases dismissed by the Municipal Judge, and in 2013 African Americans accounted for 92% of cases in which an arrest warrant was issued.
The report concludes that the racial skew remains even after various other factors are controlled for. This unnecessary disparate impact itself violates Title VI and the Safe Streets Act. 42 U.S.C. § 2000d. Moreover, the report states:
Racial bias and stereotyping is evident from the facts, taken together. This evidence includes: the consistency and magnitude of the racial disparities throughout Ferguson's police and court enforcement actions; the selection and execution of police and court practices that disproportionately harm African Americans and do little to promote public safety; the persistent exercise of discretion to the detriment of African Americans; the apparent consideration of race in assessing threat; and the historical opposition to having African Americans live in Ferguson, which lingers among some today. We have also found explicit racial bias in the communications of police and court supervisors and that some officials apply racial stereotypes, rather than facts, to explain the harm African Americans experience due to Ferguson's approach to law enforcement. "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). Based on this evidence as a whole, we have found that Ferguson's law enforcement activities stem in part from a discriminatory purpose and thus deny African Americans equal protection of the laws in violation of the Constitution."
The DOJ concluded its report with 12 single space pages of recommendations for reform, covering essentially all the activities of the Ferguson police and municipal court.
DOJ commented, as well, that "These recommendations should be closely evaluated and, as appropriate, implemented by other municipalities. We also recommend that the City and other municipalities work collaboratively with the state of Missouri on issues requiring statewide action, and further recommend:
a. Reform of Mo. Rev. Stat. § 302.341.1, which requires the suspension of individuals' driving licenses in certain cases where they do not appear or timely pay traffic charges involving moving violations;
b. Increased oversight of municipal courts in St. Louis County and throughout the state of Missouri to ensure that courts operate in a manner consistent with due process, equal protection, and other requirements of the Constitution and other laws."
Negotiations towards a consent decree ensued, and the negotiating teams reached an agreement, which was made public on January 27, 2016. However, after several public hearings, the Ferguson City Council voted to accept the agreement only if it were changed in seven specified ways--(i) eliminate any requirement of salary increases for police officers; (ii) eliminate any requirements for staffing in the Ferguson Jail; (iii) extending agreement deadlines; (iv) eliminating the requirement that the terms of the agreement apply to any other governmental agency who, in the future, might take over Ferguson policing; (v) adding local preference for contracting with consultants, contractors and third parties providing services under the agreement; (vi) adding project goals for minority and women participation in consulting, oversight and third party services; and (vii) capping monitoring fees at $1 million over the first five years with no more than $250,000 in any single
The DOJ rejected these attempts to reopen the negotiations, and promptly sued, filing this case on February 10, 2016. Acting AAG Vanita Gupta then wrote letter to Ferguson, suggesting that the city’s projected costs of the agreement were overstated. On that assurance, Ferguson's City Council approved the settlement March 15, 2016; it was filed with the Court the next day.
The agreement will be in effect until the Justice Department deems Ferguson in full compliance for two years. - 04/14/2016