Justice Department investigation of Ferguson policing is just first step in instituting change

Mar 3, 2015

The federal civil rights case that the Justice Department is unveiling against the Ferguson Police Department offers the town great opportunities but also poses substantial costs and risks, experts say.

On the plus side, the “pattern or practice” investigation lays out a roadmap for fixing unconstitutional police practices that have resulted in a disproportionate percentage of blacks being stopped and locked up by police. Those practices came under scrutiny in the wake of the shooting death of Michael Brown and have lost the confidence of many African-American citizens.

In a number of cities, the Justice Department’s pressure to reform policing has been a factor in rebuilding trust between the police and the community after fatal police shootings.

But there also are potential downsides of the Justice Department action.

Ferguson would be the smallest town to undergo the expensive court compliance process since tiny Steubenville, Ohio 18 years ago. It could face bankruptcy and the spike in crime that often follows this type of consent decree, says former St. Louis County Police Chief Tim Fitch.

“Ferguson will not survive this financially,” he said. Fitch noted that East Haven, Ct., a town a little bigger than Ferguson, had to spend $3 million reforming its police department after a similar Justice Department investigation.

Ferguson’s size also diminishes the impact of the Justice Department action.

Thomas Harvey speaking at a meeting of the Ferguson Commission.
Credit Jason Rosenbaum | St. Louis Public Radio

Thomas Harvey, whose ArchCity Defenders first called attention to the discriminatory impact of traffic stops and municipal court practices, welcomed the Justice Department’s validation of his group’s complaint.  But he also fears that by limiting the action to Ferguson, the Justice Department is falling far short of the reform that is needed.

“Without comprehensive and transformational change or the abolition of the municipal court system, individual reform in single municipalities will never truly change the lives of the most vulnerable among us,” he said.

Roger Goldman, an emeritus law professor in Saint Louis University law school, agreed that the Justice Department action would have limited reach if it is restricted to Ferguson. He said that colleagues who have studied the municipalities in north St. Louis County said “at least a dozen are worse than Ferguson.”

Fitch said he, too, thinks many other north county police departments have far worse practices.

“I was very critical of many of the north county police departments when I was a police chief because I was critical of the way they were funded on tickets. But Ferguson was never on my radar. I saw it as a professional department.”

The cost of unconstitutional policing

Samuel Walker, a University of Nebraska professor and expert on police accountability, thinks, however, that the Justice Department’s action against Ferguson could influence neighboring municipalities to clean up their unconstitutional practices.

“This could be a clear warning to these other municipalities. “ he said. “There is a price for doing what you are continuing doing.  It may have some real value in that respect.”

Walker said he had no patience for the complaints from cities that compliance with federal policing consent decrees is too expensive.

“Every city has screamed and moaned,” he said.  “I have absolutely no sympathy.  Somebody owns the house and for 25 years they don’t fix the roof or paint the walls and the front porch is collapsing and there’s a leak in the basement. There’s going to be a huge bill to bring up to market standards. They are paying for all the problems that should have been fixed in past years.”

Walker said that the statistical disparities that the Justice Department found in Ferguson’s policing “clearly are a pattern of huge disparities in the traffic stops and searches and convictions.  I think that is pretty powerful data.  The material on the emails was also damning.”

By also implicating the practices of municipal courts in locking up a disproportionate percent of black citizens, the investigation “is broader than other Justice Department investigations I know about,” he added. 

David Harris, a law professor at the University of Pittsburgh and expert on pattern or practice suits, agrees with Walker.  Including the municipal court system in the Ferguson case "breaks new ground for the Justice Department," he added.  "As far as I know this has never been one of the pieces of a consent decree.

"What stood out in the Ferguson investigation," Harris said, "was that when police stop people, African-Americans are much more likely to be searched than others and less likely to have contraband. This is a canary in a coal mine statistic.  Police use authority differently depending on who they stop. When force is use disproportionately against one group, it raises red flags."

Like Walker, Harris is unsympathetic to the costs to Ferguson. "When a police department operates outside the Constitution there is a huge cost, not on the police department, but imposed on people who live and go through that place. So the fact that they will be on the hook for changing their police department shouldn't be a reason not to."

Ferguson's argument on cost is especially weak because "the municipal court system was used to raise money by this biased enforcement. When you are making your numbers on the backs of poor people, when it comes time to fix unconstitutional practices you have no argument."

 

Reaction to Rodney King

The frustrations with holding Los Angeles police accountable for the beating of Rodney King led to passage of Section 14141 of the Violent Crime and Law Enforcement Control Act of 1994.  

The law empowers the Justice Department to sue law enforcement agencies where it finds a “pattern or practice” of unconstitutional police behavior.

From one standpoint, the law is laughably inadequate for the scope of the problem, lawyers say. The Justice Department has brought an average of three cases a year over the past 20 years, which is about 0.02 percent of the 18,000 police and sheriffs departments in the country.

On the other hand, the number of pattern or practice suits has grown rapidly under Attorney General Eric Holder. His department has pursued more than 20 cases since 2009.

 

Tim Fitch, former St. Louis County police chief
Credit Rachel Lippmann | St. Louis Public Radio

Fitch, the former St. Louis County chief who has studied these cases has found that there often is an increase in crime after police reform is put into place.  He points to Cincinnati, Prince George’s County and Seattle as examples, although Cincinnati’s increase in crime has leveled off.

Already, Fitch said, crime in St. Louis County is up 30 percent in the first two months of 2015.  The reason, he thinks, is the police who are under criticism cut back on discretionary policing that can prevent crimes.

Although Fitch agrees that citizen confidence in police can increase as a result of reforms like Cincinnati’s, he thinks Holder has gone too far in federalizing police.

Some successes, some failures

In some places, Justice Department intervention has failed. Detroit and Oakland are examples, says Walker, the police accountability expert. In Detroit the court monitor had an affair with a city official and in Oakland there has been little progress over a dozen years.

A Justice Department consent decree in Cleveland was closed out after the police made some reforms. But this past fall the Justice Department found widespread unconstitutional use of force and dramatic violations of police chase policies.

Pittsburgh, in 1997, was the first city that the Justice Department targeted with the new law. An independent study found substantial progress in the first years of the reform, despite opposition from the rank-and-file officers who bridled at the ability of career criminals to file anonymous complaints.

But a new mayor removed the police chief who had supported police reform. Under a subsequent chief, Nate Harper, the department slid backward and Harper himself ended up pleading guilty to federal tax fraud charges.

Harris, the University of Pittsburgh expert, says that that the pattern or practice case in Pittsburgh illustrates that “the biggest problem with pattern or practice cases is sustaining them.

“Pattern or practice is the best tool out there because it deals with systemic change,” he said in an interview last fall. “But it still has shortcomings because you have to have someone who keeps after it.”

Walker agrees.  “My conclusion is that federal intervention is appropriate for troubled departments … incapable of reforming themselves.”

Template for reform

The Justice Department’s pattern or practice cases usually result in consent decrees that run for five years and have similar provisions from city to city.

If a city like Ferguson doesn’t agree to a consent decree, the Justice Department would file a civil suit. It would not need to prove intentional discrimination but rather that practices had the effect of discriminating against African-Americans. Proving effect is easier than intent.

Usually cities agree to consent decrees rather than fight in court.  The typical decrees call for:

  • Change in deadly force policies to reduce the instances of deadly force;
  • Early warning procedures to identify officers with frequent complaints filed against them or who frequently violate department rules;
  • Civilian review boards to give civilian investigators subpoena powers to investigate and discipline officers;
  • Increased mental health services to help officers confronted by mentally ill people;
  • Prompt disclosure to community leaders of both a police shooting of a civilian and the officer’s name, unlike the delay that followed Wilson’s shooting of Brown.
  • Video cameras on squad cars or officers.
  • Court monitors to ensure follow-up.

It’s the court monitors that run into big bucks, says Fitch. Cities like Seattle have complained about having to pay big liquor and dinner tabs of monitors. “The monitor has his team of PDs , lawyers and consultants and that’s where the big dollars come in,” he said.

Key to success

Policing experts agree that the key to success is finding a way to institutionalize change.

“What happens when the consent decree goes away and the monitor goes away?” asks Walker. “Are the reforms embedded in policing? After all the excitement and initial energy fades, do these reforms stick?"

There were a number of reasons that reforms stuck in Cincinnati after a 2001 police shooting of an unarmed black teen. One reason is the city adopted an entirely new strategy of policing, problem-oriented policing, that brought officers and citizens together to solve crime problems.

John Eck, a criminologist at the University of Cincinnati, said the change in strategy put the police officers front and center in solving crime in the community. "This helped to bring about buy-in from the police,” Eck said.

Another key fact was that there was not only a federal case, but also a civil rights lawsuit filed on behalf of African-American men who had been killed by police. A strong federal judge oversaw implementation of the “collaborative agreement,” a blueprint for police reform.

This could  be where Harvey and his ArchCity Defenders may have a role.  Harvey said that all of the reform efforts so far – the Justice Department action, the reforms in the state legislature, the Ferguson Commission, Better Together –  were just “nibbling around the edges. Because I know they are limited in what they can do, it is going to take continued litigation to bring about comprehensive reform.”