On the Trail: As Ferguson mulls consent decree, a city and a region's fate hangs in the balance | St. Louis Public Radio

On the Trail: As Ferguson mulls consent decree, a city and a region's fate hangs in the balance

Jan 28, 2016

For Emily Davis, the future of Ferguson will come down to attitude.

Davis is part of the Ferguson Collaborative, a group of people who live, work and pray in the beleaguered St. Louis County municipality. Davis has been closely watching Ferguson and the debate over a consent decree with the Department of Justice, which came into public view on Wednesday after a 131-page document was released to the public. 

With the Ferguson City Council set to decide whether to accept or reject the potentially expensive agreement next month, Davis says her city's elected leaders have divergent options: Ferguson can either embrace the chance to transform its police department and governance or dive into the multi-year process kicking and screaming.

Protests in Ferguson during March 2015
Credit Lawrence Bryant | St. Louis American

“If [Ferguson] had done that or if we still say ‘Hey, this is a great idea,’ that would go a long way to the confidence,” Davis said. “But it would also go a long way toward making the community an economically viable place that people want to be in and people want to live in and people want to invest in.

“Attitude is important,” she added.

As Davis and others pour over the details of the voluminous compact, Ferguson’s leaders aren’t talking to the press at this point. But outside observers say the decree could fundamentally change the course of Ferguson’s government – and provide a roadmap for other cities in the region. Some are less magnanimous about the decree’s details – or whether it would make other cities change their ways.

“Think about how much time and energy and money and emotional energy has been spent on getting an agreement that says, among other things, you will not jail people solely because they are poor. And you will not arrest people solely to generate revenue,” said Thomas Harvey of the ArchCity Defenders. “I mean, it’s really shocking and we ought to be embarrassed that it took something so tragic for us to agree to what is some of the most fundamental tenets of our legal system.”

Fundamental change?

As St. Louis Public Radio’s Rachel Lippmann reported yesterday, the draft of the consent decree would require Ferguson to make substantial changes to how its police department and government operate. It would also make Ferguson’s government pay for a monitor to assess whether the city is following through on the agreement. 

U.S. Rep. Lacy Clay, D-University City, praised the draft of the Ferguson consent decree and urged city council members to approve it.
Credit Jason Rosenbaum | St. Louis Public Radio | File photo

(Click here to read the report.)

Some like Washington University law professor Karen Tokarz praised the document for nailing down the “best practices for municipal police and municipal courts anywhere in the country.” She went on to say that “any municipality looking to rebuild public trust and avoid potential litigation will find the consent decree a very useful roadmap.

“This is the new baseline for how municipalities in the country provide justice and public safety,” Tokarz said. “If a municipality cannot afford to bring its services up to this level -- and it may well be very challenging for smaller municipalities -- according to the DOJ, they get to be a municipality but they don't get to have courts and a police force. To meet these goals, some municipalities will have to explore new forms of consolidated municipal services.”

In a telephone interview, U.S. Rep. Lacy Clay echoed those sentiments. The University City Democrat added that the consent decree is “a culmination of the leaders of Ferguson sitting down with the Justice Department and initially realizing that their patterns and practices were unconstitutional.

“The people who are impacted by the governance model of Ferguson will see a drastic change in how the police interact with the community,” Clay said. “The agreement has some very strong provisions that come out of the President’s Task Force on 21st Century Policing. And it will require the city of Ferguson, their court and the police department to dramatically change the way they have done business over the last decades.”

After calling the agreement “detailed,” “comprehensive” and “thorough,” Harvey said he was particularly heartened by how the decree eliminates what he calls “wanteds.” That's the term Harvey said is used for arresting people and holding them for 24 hours as “an end-around the requirements to get a warrant issued by a court.”

“They have a section that lays out all the reasons why this is unlawful and problematic and at odds with virtually every other state in the United States. And they require them to end that practice. As with all things in here, it’s not just Ferguson where these things are happening,” Harvey said. “I think it’s a really important piece that will likely be overlooked because there are so many things going on in this document that are really important.” 

State Sen. Maria Chappelle-Nadal, D-University City, points to a sign in August 2014 in Ferguson. Chappelle-Nadal was one of the many political figures who felt transformed by Michael Brown's death.
Credit Jason Rosenbaum | St. Louis Public Radio

While noting she is still looking through the report, state Sen. Maria Chappelle Nadal, D-University City, said she supported a requirement for Ferguson to have body and dash cameras – which, she said, was “really important.”

“I’m going to be reading through the full report this weekend,” said Chappelle-Nadal, who is challenging Clay in the Democratic primary for Congress. “But I am glad to see other provisions in the [consent decree], such as ensuring that there are multiple police officers who show up to a scene – especially in domestic situations. I am really carefully going to look at cultural competency of police officers and community engagement. When police officers are actively engaged in the community, there is more confidence that a police force can do a better job.”

'Full employment act?'

One law enforcement veteran who took a dimmer view of the consent decree was former St. Louis County Police Chief Tim Fitch.

Fitch, who has been critical of some municipal police departments in St. Louis County, took note of this line in the Department of Justice’s letter to Ferguson officials about the consent decree:

Finally, the agreement leaves the city in control of its police department and municipal court. Any transfer of authority would not eliminate or relieve the obligation to ensure constitutional policing and court service in Ferguson. Thus, a transfer of authority would not end this matter.

That language, Fitch said, pretty much eliminates the possibility of Ferguson dissolving its police department and contracting with another entity, such as the St. Louis County Police Department. 

Former St. Louis County Police Chief Tim Fitch has raised questions about some of the potential consequences of the consent decree.
Credit Jason Rosenbaum I St. Louis Public Radio

“For example: Let’s say you wanted to contract with St. Louis County or maybe a nearby department like Florissant,” Fitch said. “All these reforms and all these requirements would then move over to that police department, according to this agreement. Now I ask you: What police department would want all these reforms and all these matters and all these new reports and all these new requirements to move over to them? So the DOJ has effectively told Ferguson ‘We’re going to force you through this whether you like it or not.’”

Fitch went on to say that the likely expense of complying with the consent decree could require tax increases that Ferguson residents and businesses may not be able to afford. And he’s not sure the policing would necessarily get better.

“When you look at the agreement, it is truly the Ph.D., attorney and consultant full employment act,” Fitch said. “That’s who is going to benefit here. It sounds great, all these things that the DOJ wants Ferguson to do. And I will tell you that they are lofty goals. And in a perfect world where funds are not an issue, it would be ideal to have a police department like this. But when this was written by the DOJ, they were thinking of a large, large police department that would have the expertise and the knowledge to implement these types of reforms. And that’s not what we’re talking about here. It just isn’t."

Harvey also found a potential issue with an implementation of a “comprehensive amnesty program.” He pointed out this particular clause as problematic:

Prosecution will be declined in all open cases not yet adjudicated that were initiated prior to January 1, 2014, and all warrants associated with those cases will be eliminated, except where the prosecutor finds good cause to continue prosecution, in which case the city may continue to prosecute the case and maintain the municipal arrest warrant consistent with the terms of this Agreement.

Harvey said that bolded line “effectively undermines entirely the power or the force of any amnesty program.”

“This is just a massive loophole – [especially] in the hands of a prosecutor that has not demonstrated a willingness to dismiss cases and has continued to pursue the prosecution of cases that by all evidence available to us should have been dismissed,” Harvey said.

Does this matter?

One of the longest running questions about the Department of Justice’s foray into transforming Ferguson’s government has been whether federal action will help ordinary people if other St. Louis County cities aren’t pressured to change as well.

Arch City Defenders executive director Thomas Harvey speaking during a 2014 meeting of the Ferguson Commission.
Credit File photo | Jason Rosenbaum | St. Louis Public Radio

By that same token: If Ferguson’s elected officials vote to implement the agreement, will other cities voluntarily alter their ways?

The response to this proposition was mixed. Clay, for instance, predicted “surrounding municipalities would realize that they too could eventually wind up in the negotiations with the Justice Department if they don’t change their model of policing.”

“I think this is a step in the right direction,” Clay said. “The implementation of this agreement will be key. And I’m excited about the prospects of how it changes the culture of policing and the interaction it has with those communities of color.”

Harvey’s answer was much less sanguine.

“The people who are in control either at a governmental level or who operate the courts in this region are thrilled that the Department of Justice did not extend its investigation to other municipalities,” Harvey said. “They may on the surface agree to make some changes. But without serious public pressure through organizers and activists or litigation or a combination thereof, they’re not going to make voluntary changes that will result in the systemic change across the entire region that’s necessary to change the lives of poor people and black people in this region.

"I don’t disagree that this could provide a roadmap," Harvey said. "But without the DOJ in the town, I don’t have any confidence that these other towns will make the changes necessary – either in their policy or personnel changes."

For her part, Davis said the Department of Justice is hoping for a "domino effect and that other cities see these changes that are being made.”

She also said that federal official emphasized “when you choose to make the changes like those in the consent decree, it actually comes out more cost effective in the long run because you’re less open to legal action for constitutional violations of policing within your community.”  

A Ferguson police officer and police dog stand by a police vehicle outside the Ferguson Police Department.
Credit File photo | Camille Phillips | St. Louis Public Radio

“If this is done well and the community is guided well, I think it could absolutely be a map for other communities that want to change before they get in trouble – or want to change because they do believe the quality of life of their citizens is important or because they recognize the economic incentive to change ahead of time,” said Davis, adding that the city faces "‘serious economic challenges.’ If our city continues to act like they are doing this reluctantly and under duress, and continues to blame the victims of the abuses for causing their financial downfall instead of really working hard at this and engaging the citizens in a community effort to make this better, we’re going to fail as a community and financially as a city.

“And that’s going to be the lesson that St. Louis County gets,” she added.

St. Louis Public Radio's Marshall Griffin contributed information to this report.

On the Trail, a weekly column, weaves together some of the intriguing threads from the world of Missouri politics.