Five questions we had after the DOJ sued Ferguson | St. Louis Public Radio

Five questions we had after the DOJ sued Ferguson

Feb 11, 2016

Updated Feb. 12 with comments from Mayor James Knowles III. -- The Department of Justice on Wednesday filed a civil rights lawsuit against the city of Ferguson, alleging widespread constitutional violations in its police department and municipal courts.

The suit came less than 24 hours after the Ferguson City Council voted to attach conditions to a consent decree that would have eliminated the need for a lawsuit.

Ferguson's decision raised a number of questions about what comes next. We tackled a few of them here.

Why did the city roll the dice?

"It is extremely unfortunate that the city has chosen to litigate this matter rather than move directly to these remedies and reforms that would in fact have been proven of benefit to the city and avoided the cost of litigation," attorney general Loretta Lynch said Wednesday at a press conference in Washington, D.C

But Mayor James Knowles III said city negotiators had concluded that a lawsuit would be cheaper than implementing some of the requirements.

"We’re not fighting reform," Knowles said. "What we’re fighting is to keep from having additional onerous costs lumped onto the city that really have nothing to do with constitutional policing."

City officials estimated that the requirements outlined in the document would cost the city $2 million to $4 million a year — quite a bit of money for a town that had a budget of $24 million last year, and had to spend its reserves to close a nearly $3 million gap. The city is also seeking a tax increase to cover a deficit in the upcoming budget.

"The state of Missouri constitutionally requires us to have a balanced budget," said Ferguson Mayor James Knowles. "Agreeing to something that you don't have money in the bank to cover makes that impossible for us to meet."

He said he would love to give police officers the raises called for by the Department of Justice, but the city could not afford the salary increases that would trigger for other employees.

The city also wanted to eliminate a provision that would have required any entity that might take over policing duties in Ferguson to comply with the consent decree's provisions.

Margo Schlanger, the Henry M. Butzel Professor of Law at the University of Michigan, said she doesn't think Ferguson is trying to "win" the lawsuit, necessarily.

"The evidence that the Department of Justice cited in its findings letter is very, very strong on a lot of different issues," she said. "I assume that they're not really looking to go to trial, but that they want to revisit those two provisions, and get a better deal than they were able to negotiate. They're hoping that faced with a trial, and the backing of a judge that stares down the DOJ a little bit, perhaps they can get a better deal."

Could the city be trying to wait out the Obama presidency?

 Tim Fitch, former St. Louis County police chief, was among those advancing this theory on Twitter:

It's not a bad strategy, says David Harris, a professor at the University of Pittsburgh School of Law. Complex litigation, such as a civil rights case, will take a while to conduct, and the presidential inauguration is about 11 months away. 

"It can be a big difference-maker, because you would have a new administration that might say, well, we don’t want to take this to court, we'll see if we can work something out with you," Harris said. In the transition from the Clinton to Bush presidencies, he said, the number of cases litigated dropped, as President George W. Bush focused more on offers of technical assistance. 

But the key word is could, Harris said. Either one of the Democratic candidates is likely to be as zealous, or even more so, about prosecuting the case as the Obama administration.

Knowles denied that politics had anything to do with the legal strategy.

"We're going to deal with whoever we have to deal with," he said. "This is an issue of fairness."

How rare is a lawsuit?

Not quite unicorn rare, but pretty uncommon.

Since the Department of Justice gained the power to force changes to police departments in 1994, it has opened more than 60 pattern and practice investigations. 

Most of the time, the parties reached consent decrees before any legal action was necessary. About a third resulted in lawsuits that were then settled. Only three have ever advanced to a trial. The Alamance Co., N.C., sheriff's department won its case. Maricopa Co., Ariz. lost in pre-trial motions. The third, against Colorado City, Ariz., is currently in trial.

Steve Friedland, a  professor at Elon University School of Law in Greensboro, N.C., says both the Justice Department and Ferguson likely learned something from the Alamance County case. Ferguson, he said, saw it's possible to beat the Justice Department. The Justice Department learned that it will need reliable evidence that clearly shows the alleged unconstitutional behavior was widespread and deliberate.

Does the lawsuit re-open the investigation?

Yes.

The suit will proceed like any other civil case. That means there will be a period of investigation and discovery. That means the Department of Justice could go and find additional examples of the alleged civil rights violations.

"I don't know that  there's been any obstacles in this case to the DOJ finding out everything they want to find out," said Schlanger, the civil rights litigation expert. More importantly, "the city now has a very expensive lawyer that they're going to have to start paying a lot more money." 

Dan K. Webb, an attorney at the Chicago law firm Winston & Strawn, has already charged the city more than $110,000 for his time negotiating the deal, and estimated it could cost the city $4 million to $8 million to fight it in court.

Can Ferguson change its mind?

There is always the possibility that the City Council will have a change of heart and vote to approve a "clean" consent decree at its meeting on Tuesday. That wouldn't stop litigation, Schlanger said, but it could be presented as a settlement.

Follow Rachel Lippmann on Twitter: @rlippmann