by David Lehman
from Pigeon Pages
NICOLE SEALEY Pages 5–8 (An excerpt from The Ferguson Report: An Erasure)
City officials have frequently asserted that the harsh and disparate results of Ferguson’s law enforcement system do not indicate problems with police or court practices, but instead reflect a pervasive lack of “personal responsibility” among “certain segments” of the community. Our investigation has found that the practices about which area residents have complained are in fact unconstitutional and unduly harsh. But the City’s personal-responsibility refrain is telling:
it reflects many of the same racial stereotypes found in the emails between police and court supervisors. This evidence of bias and stereotyping, together with evidence that Ferguson has long recognized but failed to correct the consistent racial disparities caused by its police and court practices, demonstrates that the discriminatory effects of Ferguson’s conduct are driven at least in part by discriminatory intent in violation of the Fourteenth Amendment.
Community Distrust
Since the August 2014 shooting death of Michael Brown, the lack of trust between the Ferguson Police Department and a significant portion of Ferguson’s residents, especially African Americans, has become undeniable. The causes of this distrust and division, however, have been the subject of debate. Police and other City officials, as well as some Ferguson residents, have insisted to us that the public outcry is attributable to “outside agitators” who do not reflect the opinions of “real Ferguson residents.” That view is at odds with the facts we have gathered during our investigation. Our investigation has shown that distrust of the Ferguson Police Department is longstanding and largely attributable to Ferguson’s approach to law enforcement. This approach results in patterns of unnecessarily aggressive and at times unlawful policing; reinforces the harm of discriminatory stereotypes; discourages a culture of accountability; and neglects community engagement. In recent years, FPD has moved away from the modest community policing efforts it previously had implemented, reducing opportunities for positive police-community interactions, and losing the little familiarity it had with some African-American neighborhoods. The confluence of policing to raise revenue and racial bias thus has resulted in practices that not only violate the Constitution and cause direct harm to the individuals whose rights are violated, but also undermine community trust, especially among many African Americans. As a consequence of these practices, law enforcement is seen as illegitimate, and the partnerships necessary for public safety are, in some areas, entirely absent.
Restoring trust in law enforcement will require recognition of the harms caused by Ferguson’s law enforcement practices, and diligent, committed collaboration with the entire Ferguson community. At the conclusion of this report, we have broadly identified the changes that are necessary for meaningful and sustainable reform. These measures build upon a number of other recommended changes we communicated verbally to the Mayor, Police Chief, and City Manager in September so that Ferguson could begin immediately to address problems as we identified them. As a result of those recommendations, the City and police department have already begun to make some changes to municipal court and police practices. We commend City officials for beginning to take steps to address some of the concerns we have already raised. Nonetheless, these changes are only a small part of the reform necessary. Addressing the deeply embedded constitutional deficiencies we found demands an entire reorientation of law enforcement in Ferguson. The City must replace revenue-driven policing with a system grounded in the principles of community policing and police legitimacy, in which people are equally protected and treated with compassion, regardless of race.
II. BACKGROUND
The City of Ferguson is one of 89 municipalities in St. Louis County, Missouri. According to United States Census Data from 2010, Ferguson is home to roughly 21,000 residents. While Ferguson’s total population has stayed relatively constant in recent decades, Ferguson’s racial demographics have changed dramatically during that time. In 1990, 74% of Ferguson’s population was white, while 25% was black. By 2000, African Americans became the new majority, making up 52% of the City’s population. According to the 2010 Census, the black population in Ferguson has grown to 67%, whereas the white population has decreased to 29%. According to the 2009-2013 American Community Survey, 25% of the City’s population lives below the federal poverty level.
Residents of Ferguson elect a Mayor and six individuals to serve on a City Council. The City Council appoints a City Manager to an indefinite term, subject to removal by a Council vote. See Ferguson City Charter § 4.1. The City Manager serves as chief executive and administrative officer of the City of Ferguson, and is responsible for all affairs of the City. The City Manager directs and supervises all City departments, including the Ferguson Police Department.
The current Chief of Police, Thomas Jackson, has commanded the police department since he was appointed by the City Manager in 2010. The department has a total of 54 sworn officers divided among several divisions. The patrol division is the largest division; 28 patrol officers are supervised by four sergeants, two lieutenants, and a captain. Each of the four patrol squads has a canine officer. While all patrol officers engage in traffic enforcement, FPD also has a dedicated traffic officer responsible for collecting traffic stop data required by the state of Missouri. FPD has two School Resource Officers (“SROs”), one who is assigned to the McCluer South-Berkeley High School and one who is assigned to the Ferguson Middle School. FPD has a single officer assigned to be the “Community Resource Officer,” who attends community meetings, serves as FPD’s public relations liaison, and is charged with collecting crime data. FPD operates its own jail, which has ten individual
cells and a large holding cell. The jail is staffed by three non-sworn correctional officers. Of the 54 sworn officers currently serving in FPD, four are African American.
FPD officers are authorized to initiate charges—by issuing citations or summonses, or by making arrests—under both the municipal code and state law. Ferguson’s municipal code addresses nearly every aspect of civic life for those who live in Ferguson, and regulates the conduct of all who work, travel through, or otherwise visit the City. In addition to mirroring some non-felony state law
violations, such as assault, stealing, and traffic violations, the code establishes housing violations, such as High Grass and Weeds; requirements for permits to rent an apartment or use the City’s trash service; animal control ordinances, such as Barking Dog and Dog Running at Large; and a number of other violations, such as Manner of Walking in Roadway. See, e.g., Ferguson Mun. Code §§ 29-16 et seq.; 37-1 et seq.; 46-27; 6-5, 6-11; 44-344.
FPD files most charges as municipal offenses, not state violations, even when an analogous state offense exists. Between July 1, 2010, and June 30, 2014, the City of Ferguson issued approximately 90,000 citations and summonses for municipal violations. Notably, the City issued nearly 50% more citations in the last year of that time period than it did in the first. This increase in enforcement has not been driven by a rise in serious crime. While the ticketing rate has increased dramatically, the number of charges for many of the most serious offenses covered by the municipal code—e.g., Assault, Driving While Intoxicated, and Stealing—has remained relatively constant.
Because the overwhelming majority of FPD’s enforcement actions are brought under the municipal code, most charges are processed and resolved by the Ferguson Municipal Court, which has primary jurisdiction over all code violations. Ferguson Mun. Code § 13-2. 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. In recent weeks, City officials informed us that they ar
e considering plans to bring the court under the supervision of the City Finance Director.
A Municipal Judge presides over court sessions. The Municipal Judge is not hired or supervised by the Chief of Police, but is instead nominated by the City Manager and elected by the City Council. The Judge serves a two-year term, subject to reappointment. The current Municipal Judge, Ronald Brockmeyer, has presided in Ferguson for approximately ten years. The City’s Prosecuting Attorney and her assistants officially prosecute all actions before the court, although in practice most cases are resolved without trial or a prosecutor’s involvement. The current Prosecuting Attorney was appointed in April 2011. At the time of her appointment, the Prosecuting Attorney was already serving as City Attorney, and she continues to serve in that separate capacity, which entails providing general counsel and representation to the City. The Municipal Judge, Court Clerk, Prosecuting Attorney, and all assistant court clerks are white.
While the Municipal Judge presides over court sessions, the Court Clerk, who is employed under the Police Chief’s supervision, plays the most significant role in managing the court and exercises broad discretion in conducting the court’s daily operations. Ferguson’s municipal code confers broad authority on the Court Clerk, including the authority to collect all fines and fees,
accept guilty pleas, sign and issue subpoenas, and approve bond determinations. Ferguson Mun. Code § 13-7. Indeed, 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 court officially operates subject to the oversight of the presiding judge of the St. Louis County Circuit Court (21st Judicial Circuit) under the rules promulgated by that Circuit Court and the Missouri Supreme Court. Notwithstanding these rules, the City of Ferguson and the court itself retain considerable power to establish and amend court practices and procedures. The Ferguson municipal code sets forth a limited number of protocols that the court must follow, but the code leaves most aspects of court operations to the discretion of the court itself. See Ferguson Mun. Code Ch. 13, Art. III. The code also explicitly authorizes the Municipal Judge to “make and adopt such rules of practice and procedure as are necessary to hear and decide matters pending before the municipal court.” Ferguson Mun. Code § 13-29.
The Ferguson Municipal Court has the authority to issue and enforce judgments, issue warrants for search and arrest, hold parties in contempt, and order imprisonment as a penalty for contempt. The court may conduct trials, although it does so rarely, and most charges are resolved without one. Upon resolution of a charge, the court has the authority to impose fines, fees, and imprisonment when violations are found. Specifically, the court can impose imprisonment in the Ferguson City Jail for up to three months, a fine of up to $1,000, or a combination thereof. It is rare for the court to sentence anyone to jail as a penalty for a violation of the municipal code; indeed, the Municipal Judge reports that he has done so only once.
Rather, the court almost always imposes a monetary penalty payable to the City of Ferguson, plus court fees. Nonetheless, as discussed in detail below, the court issues arrest warrants when a person misses a court appearance or fails to timely pay a fine. As a result, violations that would normally not result in a penalty of imprisonment can, and frequently do, lead to municipal warrants, arrests, and jail time.
As the number of charges initiated by FPD has increased in recent years, the size of the court’s docket has also increased. According to data the City reported to the Missouri State Courts Administrator, at the end of fiscal year 2009, the municipal court had roughly 24,000 traffic cases and 28,000 non-traffic cases pending. As of October 31, 2014, both of those figures had roughly doubled to 53,000 and 50,000 cases, respectively. In fiscal year 2009, 16,178 new cases were filed, and 8,727 were resolved. In 2014, by contrast, 24,256 new offenses were filed, and 10,975 offenses were resolved.
The court holds three or four sessions per month, and each session lasts no more than three hours. It is not uncommon for as many as 500 people to appear before the court in a single session, exceeding the court’s physical capacity and leading individuals to line up outside of court waiting to be heard. Many people have multiple offenses pending; accordingly, the court typically considers 1,200-1,500 offenses in a single session, and has in the past considered over 2,000 offenses during one sitting. Previously there was a cap on the number of offenses that could be assigned to a particular docket date. Given that cap, and the significant increase in municipal citations in recent years, a problem developed in December 2011 in which more citations were issued than court sessions could timely accommodate. At one point court dates were initially scheduled as far as six months after the date of the citation. To address this problem, court staff first raised the cap to allow 1,000 offenses to be assigned to a single court date and later eliminated the cap altogether. To handle the increasing caseload, the City Manager also requested and secured City Council approval to fund additional court positions, noting in January 2013 that “each month we are setting new all-time records in fines and forfeitures,” that this was overburdening court staff, and that the funding for the additional positions “will be more than covered by the increase in revenues.”
III. FERGUSON LAW ENFORCEMENT EFFORTS ARE FOCUSED ON GENERATING REVENUE
City officials have consistently set maximizing revenue as the priority for Ferguson’s law enforcement activity. Ferguson generates a significant and increasing amount of revenue from the enforcement of code provisions. The City has budgeted for, and achieved, significant increases in revenue from municipal code enforcement over the last several years, and these increases are projected to continue. Of the $11.07 million in general fund revenue the City collected in fiscal year 2010, $1.38 million came from fines and fees collected by the court; similarly, in fiscal year 2011, the City’s general fund revenue of $11.44 million included $1.41 million from fines and fees. In its budget for fiscal year 2012, however, the City predicted that revenue from municipal fines and fees would increase over 30% from the previous year’s amount to $1.92 million; the court exceeded that target, collecting $2.11 million. In its budget for fiscal year 2013, the City budgeted for fines and fees to yield $2.11 million; the court exceeded that target as well, collecting $2.46 million. For 2014, the City budgeted for the municipal court to generate $2.63 million in revenue. The City has not yet made public the actual revenue collected that year, although budget documents forecasted lower revenue than was budgeted. Nonetheless, for fiscal year 2015, the City’s budget anticipates fine and fee revenues to account for $3.09 million of a projected $13.26 million in general fund revenues.
City, police, and court officials for years have worked in concert to maximize revenue at every stage of the enforcement process, beginning with how fines and fine enforcement processes are established. In a February 2011 report requested by the City Council at a Financial Planning Session and drafted by Ferguson’s Finance Director with contributions from Chief Jackson, the Finance Director reported on “efforts to increase efficiencies and maximize collection” by the municipal court. The report included an extensive comparison of Ferguson’s fines to those of surrounding rmunicipalities and noted with approval that Ferguson’s fines are “at or near the top of the list.” The chart noted, for example, that while other municipalities’ parking fines generally range from $5 to $100, Ferguson’s is $102. The chart noted also that the charge for “Weeds/Tall Grass” was as little as $5 in one city but, in Ferguson, it ranged fom $77 to $102. The report stated that the acting prosecutor had reviewed the City’s “high volume offenses” and “started recommending higher fines on these cases, and recommending probation only infrequently.” While the report stated that this
from The Paris Review
EVIE SHOCKLEY women’s voting rights at one hundred (but who’s counting?)
eenie meenie minie moe
catch
a voter by her toe
if she hollers then you know
got yourself a real jane crow
* * *
one vote is an opinion
with a quiet legal force ::
a barely audible beep
in the local traffic, & just
a plashless drop of mercury
in the national thermometer.
but a collectivity of votes
/a flock of votes, a pride of votes,
a murder of votes/can really
make some noise.
* * *
one vote begets another
if you make a habit of it.
my mother started taking me
to the polls with her when i
was seven :: small, thrilled
to step in the booth, pull
the drab curtain hush-shut
behind us, & flip the levers
beside each name she pointed
to, the Xs clicking into view.
there, she called the shots.
* * *
rich gal, poor gal
hired girl, thief
teacher, journalist
vote your grief
* * *
one vote’s as good as another
:: still, in 1913, illinois’s gentle
suffragists, hearing southern
women would resent spotting
