Part 2 of 62. FPD Engages in a Pattern of First Amendment Violations
FPD’s approach to enforcement results in violations of individuals’ First Amendment rights. FPD arrests people for a variety of protected conduct: people are punished for talking back to officers, recording public police activities, and lawfully protesting perceived injustices.
Under the Constitution, what a person says generally should not determine whether he or she is jailed. Police officers cannot constitutionally make arrest decisions based on individuals’ verbal expressions of disrespect for law enforcement, including use of foul language. Buffkins v. City of Omaha, 922 F.2d 465, 472 (8th Cir. 1990) (holding that officers violated the Constitution when they arrested a woman for disorderly conduct after she called one an “asshole,” especially since “police officers are expected to exercise greater restraint in their response than the average citizen”); Copeland v. Locke, 613 F.3d 875, 880 (8th Cir. 2010) (holding that the First Amendment prohibited a police chief from arresting an individual who pointed at him and told him “move the f*****g car,” even if the comment momentarily distracted the chief from a routine traffic stop); Gorra v. Hanson, 880 F.2d 95, 100 (8th Cir. 1989) (holding that arresting a person in retaliation for making a statement “constitutes obvious infringement” of the First Amendment). As the Supreme Court has held, “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987) (striking down as unconstitutionally overbroad a local ordinance that criminalized interference with police by speech).
In Ferguson, however, officers frequently make enforcement decisions based on what subjects say, or how they say it. Just as officers reflexively resort to arrest immediately upon noncompliance with their orders, whether lawful or not, they are quick to overreact to challenges and verbal slights. These incidents—sometimes called “contempt of cop” cases—are propelled by officers’ belief that arrest is an appropriate response to disrespect. These arrests are typically charged as a Failure to Comply, Disorderly Conduct, Interference with Officer, or Resisting Arrest.
For example, in July 2012, a police officer arrested a business owner on charges of Interfering in Police Business and Misuse of 911 because she objected to the officer’s detention of her employee. The officer had stopped the employee for “walking unsafely in the street” as he returned to work from the bank. According to FPD records, the owner “became verbally involved,” came out of her shop three times after being asked to stay inside, and called 911 to complain to the Police Chief. The officer characterized her protestations as interference and arrested her inside her shop.  The arrest violated the First Amendment, which “does not allow such speech to be made a crime.” Hill, 482 U.S. at 462. Indeed, the officer’s decision to arrest the woman after she tried to contact the Police Chief suggests that he may have been retaliating against her for reporting his conduct.
Officers in Ferguson also use their arrest power to retaliate against individuals for using language that, while disrespectful, is protected by the Constitution. For example, one afternoon in September 2012, an officer stopped a 20-year-old African-American man for dancing in the middle of a residential street. The officer obtained the man’s identification and ran his name for warrants. Finding none, he told the man he was free to go. The man responded with profanities. When the officer told him to watch his language and reminded him that he was not being arrested, the man continued using profanity and was arrested for Manner of Walking in Roadway.
In February 2014, officers responded to a group of African-American teenage girls “play fighting” (in the words of the officer) in an intersection after school. When one of the schoolgirls gave the middle finger to a white witness who had called the police, an officer ordered her over to him. One of the girl’s friends accompanied her. Though the friend had the right to be present and observe the situation—indeed, the offense reports include no facts suggesting a safety concern posed by her presence—the officers ordered her to leave and then attempted to arrest her when she refused. Officers used force to arrest the friend as she pulled away. When the first girl grabbed an officer’s shoulder, they used force to arrest her, as well.
Officers charged the two teenagers with a variety of offenses, including: Disorderly Conduct for giving the middle finger and using obscenities; Manner of Walking for being in the street; Failure to Comply for staying to observe; Interference with Officer; Assault on a Law Enforcement Officer; and Endangering the Welfare of a Child (themselves and their schoolmates) by resisting arrest and being involved in disorderly conduct. This incident underscores how officers’ unlawful response to activity protected by the First Amendment can quickly escalate to physical resistance, resulting in additional force, additional charges, and increasing the risk of injury to officers and members of the public alike.
These accounts are drawn entirely from officers’ own descriptions, recorded in offense reports. That FPD officers believe criticism and insolence are grounds for arrest, and that supervisors have condoned such unconstitutional policing, reflects intolerance for even lawful opposition to the exercise of police authority. These arrests also reflect that, in FPD, many officers have no tools for de-escalating emotionally charged scenes, even though the ability of a police officer to bring calm to a situation is a core policing skill.
FPD officers also routinely infringe on the public’s First Amendment rights by preventing people from recording their activities. The First Amendment “prohibit[s] the government from limiting the stock of information from which members of the public may draw.” First Nat’l Bank v. Belloti, 435 U.S. 765, 783 (1978). Applying this principle, the federal courts of appeal have held that the First Amendment “unambiguously” establishes a constitutional right to videotape police activities. Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); see also ACLU v. Alvarez, 679 F.3d 583, 600 (7th Cir. 2012) (issuing a preliminary injunction against the use of a state eavesdropping statute to prevent the recording of public police activities); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing a First Amendment right to film police carrying out their public duties); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing a First Amendment right “to photograph or videotape police conduct”). Indeed, as the ability to record police activity has become more widespread, the role it can play in capturing questionable police activity, and ensuring that the activity is investigated and subject to broad public debate, has become clear. Protecting civilian recording of police activity is thus at the core of speech the First Amendment is intended to protect. Cf. Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (First Amendment protects “news gathering”); Mills v. Alabama, 384 U.S. 214, 218 (1966) (news gathering enhances “free discussion of governmental affairs”). “In a democracy, public officials have no general privilege to avoid publicity and embarrassment by preventing public scrutiny of their actions.” Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005).
In Ferguson, however, officers claim without any factual support that the use of camera phones endangers officer safety. Sometimes, officers offer no rationale at all. Our conversations with community members and review of FPD records found numerous violations of the right to record police activity. In May 2014, an officer pulled over an African-American woman who was driving with her two sons. During the traffic stop, the woman’s 16-year-old son began recording with his cell phone. The officer ordered him to put down the phone and refrain from using it for the remainder of the stop. The officer claimed this was “for safety reasons.” The situation escalated, apparently due to the officer’s rudeness and the woman’s response. According to the 16 year old, he began recording again, leading the officer to wrestle the phone from him. Additional officers arrived and used force to arrest all three civilians under disputed circumstances that could have been clarified by a video recording.
In June 2014, an African-American couple who had taken their children to play at the park allowed their small children to urinate in the bushes next to their parked car. An officer stopped them, threatened to cite them for allowing the children to “expose themselves,” and checked the father for warrants. When the mother asked if the officer had to detain the father in front of the children, the officer turned to the father and said, “you’re going to jail because your wife keeps running her mouth.” The mother then began recording the officer on her cell phone. The officer became irate, declaring, “you don’t videotape me!” As the officer drove away with the father in custody for “parental neglect,” the mother drove after them, continuing to record. The officer then pulled over and arrested her for traffic violations. When the father asked the officer to show mercy, he responded, “no more mercy, since she wanted to videotape,” and declared “nobody videotapes me.” The officer then took the phone, which the couple’s daughter was holding. After posting bond, the couple found that the video had been deleted.
A month later, the same officer pulled over a truck hauling a trailer that did not have operating tail lights. The officer asked for identification from all three people inside, including a 54-year-old white man in the passenger seat who asked why. “You have to have a reason. This is a violation of my Fourth Amendment rights,” he asserted. The officer, who characterized the man’s reaction as “suspicious,” responded, “the reason is, if you don’t hand it to me, I’ll arrest you.” The man provided his identification. The officer then asked the man to move his cell phone from his lap to the dashboard, “for my safety.” The man said, “okay, but I’m going to record this.” Due to nervousness, he could not open the recording application and quickly placed the phone on the dash. The officer then announced that the man was under arrest for Failure to Comply. At the end of the traffic stop, the officer gave the driver a traffic citation, indicated at the other man, and said, “you’re getting this ticket because of him.” Upon bringing that man to the jail, someone asked the officer what offense the man had committed. The officer responded, “he’s one of those guys who watches CNBC too much about his rights.” The man did not say anything else, fearing what else the officer might be capable of doing. He later told us, “I never dreamed I could end up in jail for this. I’m scared of driving through Ferguson now.”
The Ferguson Police Department’s infringement of individuals’ freedom of speech and right to record has been highlighted in recent months in the context of large-scale public protest. In November 2014, a federal judge entered a consent order prohibiting Ferguson officers from interfering with individuals’ rights to lawfully and peacefully record public police activities. That same month, the City settled another suit alleging that it had abused its loitering ordinance, Mun. Code § 29-89, to arrest people who were protesting peacefully on public sidewalks.
Despite these lawsuits, it appears that FPD continues to interfere with individuals’ rights to protest and record police activities. On February 9, 2015, several individuals were protesting outside the Ferguson police station on the six-month anniversary of Michael Brown’s death. According to protesters, and consistent with several video recordings from that evening, the protesters stood peacefully in the police department’s parking lot, on the sidewalks in front of it, and across the street. Video footage shows that two FPD vehicles abruptly accelerated from the police parking lot into the street. An officer announced, “everybody here’s going to jail,” causing the protesters to run. Video shows that as one man recorded the police arresting others, he was arrested for interfering with police action. Officers pushed him to the ground, began handcuffing him, and announced, “stop resisting or you’re going to get tased.” It appears from the video, however, that the man was neither interfering nor resisting. A protester in a wheelchair who was live streaming the protest was also arrested. Another officer moved several people with cameras away from the scene of the arrests, warning them against interfering and urging them to back up or else be arrested for Failure to Obey. The sergeant shouted at those filming that they would be arrested for Manner of Walking if they did not back away out of the street, even though it appears from the video recordings that the protesters and those recording were on the sidewalk at most, if not all, times. Six people were arrested during this incident. It appears that officers’ escalation of this incident was unnecessary and in response to derogatory comments written in chalk on the FPD parking lot asphalt and on a police vehicle.
FPD’s suppression of speech reflects a police culture that relies on the exercise of police power—however unlawful—to stifle unwelcome criticism. Recording police activity and engaging in public protest are fundamentally democratic enterprises because they provide a check on those “who are granted substantial discretion that may be misused to deprive individuals of their liberties.” Glik, 655 F.3d at 82. Even profane backtalk can be a form of dissent against perceived misconduct. In the words of the Supreme Court, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Hill, 482 U.S. at 463. Ideally, officers would not encounter verbal abuse. Communities would encourage mutual respect, and the police would likewise exhibit respect by treating people with dignity. But, particularly where officers engage in unconstitutional policing, they only exacerbate community opposition by quelling speech.3. FPD Engages in a Pattern of Excessive Force in Violation of the Fourth Amendment
FPD engages in a pattern of excessive force in violation of the Fourth Amendment. Many officers are quick to escalate encounters with subjects they perceive to be disobeying their orders or resisting arrest. They have come to rely on ECWs, specifically Tasers®, where less force—or no force at all—would do. They also release canines on unarmed subjects unreasonably and before attempting to use force less likely to cause injury. Some incidents of excessive force result from stops or arrests that have no basis in law. Others are punitive and retaliatory. In addition, FPD records suggest a tendency to use unnecessary force against vulnerable groups such as people with mental health conditions or cognitive disabilities, and juvenile students. Furthermore, as discussed in greater detail in Part III.C. of this report, Ferguson’s pattern of using excessive force disproportionately harms African-American members of the community. The overwhelming majority of force—almost 90%—is used against African Americans.
The use of excessive force by a law enforcement officer violates the Fourth Amendment. Graham v. Conner, 490 U.S. 386, 394 (1989); Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1207-09 (8th Cir. 2013). The constitutionality of an officer’s use of force depends on whether the officer’s conduct was “‘objectively reasonable’ in light of the facts and circumstances,” which must be assessed “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. Relevant considerations include “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.; Johnson v. Caroll, 658 F.3d 819, 826 (8th Cir. 2011).
FPD also imposes limits on officers’ use of force through department policies. The use-of-force policy instituted by Chief Jackson in 2010 states that “force may not be resorted to unless other reasonable alternatives have been exhausted or would clearly be ineffective under a particular set of circumstances.” FPD General Order 410.01. The policy also sets out a use-of-force continuum, indicating the force options permitted in different circumstances, depending on the level of resistance provided by a suspect. FPD General Order 410.08.
FPD’s stated practice is to maintain use-of-force investigation files for all situations in which officers use force. We reviewed the entire set of force files provided by the department for the period of January 1, 2010 to September 8, 2014.  Setting aside the killing of animals (e.g., dogs, injured deer) and three instances in which the subject of the use of force was not identified, FPD provided 151 files. We also reviewed related documentation regarding canine deployments. Our finding that FPD force is routinely unreasonable and sometimes clearly punitive is drawn largely from FPD’s documentation; that is, from officers’ own words.a. FPD’s Use of Electronic Control Weapons Is Unreasonable
FPD’s pattern of excessive force includes using ECWs in a manner that is unconstitutional, abusive, and unsafe. For example, in August 2010, a lieutenant used an ECW in drive-stun mode against an African-American woman in the Ferguson City Jail because she had refused to remove her bracelets.  The lieutenant resorted to his ECW even though there were five officers present and the woman posed no physical threat.
Similarly, in November 2013, a correctional officer fired an ECW at an African-American woman’s chest because she would not follow his verbal commands to walk toward a cell. The woman, who had been arrested for driving while intoxicated, had yelled an insulting remark at the officer, but her conduct amounted to verbal noncompliance or passive resistance at most. Instead of attempting hand controls or seeking assistance from a state trooper who was also present, the correctional officer deployed the ECW because the woman was “not doing as she was told.” When another FPD officer wrote up the formal incident report, the reporting officer wrote that the woman “approached [the correctional officer] in a threatening manner.” This “threatening manner” allegation appears nowhere in the statements of the correctional officer or witness trooper. The woman was charged with Disorderly Conduct, and the correctional officer soon went on to become an officer with another law enforcement agency.
These are not isolated incidents. In September 2012, an officer drive-stunned an African-American woman who he had placed in the back of his patrol car but who had stretched out her leg to block him from closing the door. The woman was in handcuffs. In May 2013, officers drive-stunned a handcuffed African-American man who verbally refused to get out of the back seat of a police car once it had arrived at the jail. The man did not physically resist arrest or attempt to assault the officers. According to the man, he was also punched in the face and head. That allegation was neither reported by the involved officers nor investigated by their supervisor, who dismissed it.
FPD officers seem to regard ECWs as an all-purpose tool bearing no risk. But an ECW—an electroshock weapon that disrupts a person’s muscle control, causing involuntary contractions—can indeed be harmful. The Eighth Circuit Court of Appeals has observed that ECW-inflicted injuries are “sometimes severe and unexpected.” LaCross v. City of Duluth, 713 F.3d 1155, 1158 (8th Cir. 2013). Electroshock “inflicts a painful and frightening blow, which temporarily paralyzes the large muscles of the body, rendering the victim helpless.” Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993). Guidance produced by the United States Department of Justice, Office of Community Oriented Policing Services, and the Police Executive Research Forum in 2011 warns that ECWs are “‘less-lethal’ and not ‘nonlethal weapons’” and “have the potential to result in a fatal outcome.” 2011 Electronic Control Weapon Guidelines 12 (Police Executive Research Forum & U.S. Dep’t of Justice Office of Community Oriented Policing Services, Mar. 2011) (“2011 ECW Guidelines”).
FPD officers’ swift, at times automatic, resort to using ECWs against individuals who typically have committed low-level crimes and who pose no immediate threat violates the Constitution. As the Eighth Circuit held in 2011, an officer uses excessive force and violates clearly established Fourth Amendment law when he deploys an ECW against an individual whose crime was minor and who is not actively resisting, attempting to flee, or posing any imminent danger to others. Brown v. City of Golden Valley, 574 F.3d 491, 497-99 (8th Cir. 2011) (upholding the denial of a qualified immunity claim made by an officer who drive-stunned a woman on her arm for two or three seconds when she refused to hang up her phone despite being ordered to do so twice); cf. Hickey, 12 F.3d at 759 (finding that the use of a stun gun against a prisoner for refusing to sweep his cell violated the more deferential Eighth Amendment prohibition against cruel and unusual punishment). Courts have found that even when a suspect resists but does so only minimally, the surrounding factors may render the use of an ECW objectively unreasonable. See Mattos v. Agarano, 661 F.3d 433, 444-46, 448-51 (9th Cir. 2011) (en banc) (holding in two consolidated cases that minimal defensive resistance—including stiffening the body to inhibit being pulled from a car, and raising an arm in defense—does not render using an ECW reasonable where the offense was minor, the subject did not attempt to flee, and the subject posed no immediate threat to officers); Parker v. Gerrish, 547 F.3d 1, 9-11 (1st Cir. 2008) (upholding a jury verdict of excessive use of force for an ECW use because the evidence supported a finding that the subject who had held his hands together was not actively resisting or posing an immediate threat); Casey v. City of Fed. Heights, 509 F.3d 1278, 1282-83 (10th Cir. 2007) (holding that the use of an ECW was not objectively reasonable when the subject pulled away from the officer but did not otherwise actively resist arrest, attempt to flee, or pose an immediate threat).
Indeed, officers’ unreasonable ECW use violates FPD’s own policies. The department prohibits the use of force unless reasonable alternatives have been exhausted or would clearly be ineffective. FPD General Order 410.01. A separate ECW policy describes the weapon as “designed to overcome active aggression or overt actions of assault.” FPD General Order 499.00. The policy states that an ECW “will never be deployed punitively or for purposes of coercion. It is to be used as a way of averting a potentially injurious or dangerous situation.” FPD General Order 499.04. Despite the existence of clearly established Fourth Amendment case law and explicit departmental policies in this area, FPD officers routinely engage in the unreasonable use of ECWs, and supervisors routinely approve their conduct.
It is in part FPD officers’ approach to policing that leads them to violate the Constitution and FPD’s own policies. Officers across the country encounter drunkenness, passive defiance, and verbal challenges. But in Ferguson, officers have not been trained or incentivized to use de-escalation techniques to avoid or minimize force in these situations. Instead, they respond with impatience, frustration, and disproportionate force. FPD’s weak oversight of officer use of force, described in greater detail below, facilitates this abuse. Officers should be required to view the ECW as one tool among many, and “a weapon of need, not a tool of convenience.” 2011 ECW Guidelines at 11. Effective policing requires that officers not depend on ECWs, or any type of force, “at the expense of diminishing the fundamental skills of communicating with subjects and de-escalating tense encounters.” Id. at 12.b. FPD’s Use of Canines on Low-level, Unarmed Offenders Is Unreasonable
FPD engages in a pattern of deploying canines to bite individuals when the articulated facts do not justify this significant use of force. The department’s own records demonstrate that, as with other types of force, canine officers use dogs out of proportion to the threat posed by the people they encounter, leaving serious puncture wounds to nonviolent offenders, some of them children. Furthermore, in every canine bite incident for which racial information is available, the subject was African American. This disparity, in combination with the decision to deploy canines in circumstances with a seemingly low objective threat, suggests that race may play an impermissible role in officers’ decisions to deploy canines.
FPD currently has four canines, each assigned to a particular canine officer. Under FPD policy, canines are to be used to locate and apprehend “dangerous offenders.” FPD General Order 498.00. When offenders are hiding, the policy states, “handlers will not allow their K-9 to engage a suspect by biting if a lower level of force could reasonably be expected to control the suspect or allow for the apprehension.” Id. at 498.06. The policy also permits the use of a canine, however, when any crime—not just a felony or violent crime—has been committed. Id. at 498.05. This permissiveness, combined with the absence of meaningful supervisory review and an apparent tendency to overstate the threat based on race, has resulted in avoidable dog bites to low-level offenders when other means of control were available.
In December 2011, officers deployed a canine to bite an unarmed 14-year-old African-American boy who was waiting in an abandoned house for his friends. Four officers, including a canine officer, responded to the house mid-morning after a caller reported that people had gone inside. Officers arrested one boy on the ground level. Describing the offense as a burglary in progress even though the facts showed that the only plausible offense was trespassing, the canine officer’s report stated that the dog located a second boy hiding in a storage closet under the stairs in the basement. The officer peeked into the space and saw the boy, who was 5’5” and 140 pounds, curled up in a ball, hiding. According to the officer, the boy would not show his hands despite being warned that the officer would use the dog. The officer then deployed the dog, which bit the boy’s arm, causing puncture wounds.
According to the boy, with whom we spoke, he never hid in a storage space and he never heard any police warnings. He told us that he was waiting for his friends in the basement of the house, a vacant building where they would go when they skipped school. The boy approached the stairs when he heard footsteps on the upper level, thinking his friends had arrived. When he saw the dog at the top of the steps, he turned to run, but the dog quickly bit him on the ankle and then the thigh, causing him to fall to the floor. The dog was about to bite his face or neck but instead got his left arm, which the boy had raised to protect himself. FPD officers struck him while he was on the ground, one of them putting a boot on the side of his head. He recalled the officers laughing about the incident afterward.
The lack of sufficient documentation or a supervisory force investigation prevents us from resolving which version of events is more accurate. However, even if the officer’s version of the force used were accurate, the use of the dog to bite the boy was unreasonable. Though described as a felony, the facts as described by the officer, and the boy, indicate that this was a trespass—kids hanging out in a vacant building. The officers had no factual predicate to believe the boy was armed. The offense reports document no attempt to glean useful information about the second boy from the first, who was quickly arrested. By the canine officer’s own account, he saw the boy in the closet and thus had the opportunity to assess the threat posed by this 5’5” 14 year old. Moreover, there were no exigent circumstances requiring apprehension by dog bite. Four officers were present and had control of the scene.
There is a recurring pattern of officers claiming they had to use a canine to extract a suspect hiding in a closed space. The frequency with which this particular rationale is used to justify dog bites, alongside the conclusory language in the reports, provides cause for concern. In December 2012, a 16-year-old African-American boy suspected of stealing a car fled from an officer, jumped several fences, and ran into a vacant house. A second officer arrived with a canine, which reportedly located the suspect hiding in a closet. Without providing a warning outside the closet, the officer opened the door and sent in the dog, which bit the suspect and dragged him out by the legs. This force appears objectively unreasonable. See Kuha v. City of Minnetonka, 365 F.3d 590, 598 (8th Cir. 2004), abrogated on other grounds by Szabla v. City of Brooklyn Park, Minn., 486 F.3d 385, 396 (8th Cir. 2007) (en banc) (holding that “a jury could find it objectively unreasonable to use a police dog trained in the bite and hold method without first giving the suspect a warning and opportunity for peaceful surrender”). The first officer, who was also on the scene by this point, deployed his ECW against the suspect three times as the suspect struggled with the dog, which was still biting him. The offense reports provide only minimal explanation for why apprehension by dog bite was necessary. The pursuing officer claimed the suspect had “reached into the front section of his waist area,” but the report does not say that he relayed this information to the canine officer, and no weapon was found. Moreover, given the lack of a warning at the closet, the use of the dog and ECW at the same time, and the application of three ECW stuns in quick succession, the officers’ conduct raises the possibility that the force was applied in retaliation for leading officers on a chase.
In November 2013, an officer deployed a canine to bite and detain a fleeing subject even though the officer knew the suspect was unarmed. The officer deemed the subject, an African-American male who was walking down the street, suspicious because he appeared to walk away when he saw the officer. The officer stopped him and frisked him, finding no weapons. The officer then ran his name for warrants. When the man heard the dispatcher say over the police radio that he had outstanding warrants—the report does not specify whether the warrants were for failing to appear in municipal court or to pay owed fines, or something more serious—he ran. The officer followed him and released his dog, which bit the man on both arms. The officer’s supervisor found the force justified because the officer released the dog “fearing that the subject was armed,” even though the officer had already determined the man was unarmed.
As these incidents demonstrate, FPD officers’ use of canines to bite people is frequently unreasonable. Officers command dogs to apprehend by biting even when multiple officers are present. They make no attempt to slow situations down, creating time to resolve the situation with lesser force. They appear to use canines not to counter a physical threat but to inflict punishment. They act as if every offender has a gun, justifying their decisions based on what might be possible rather than what the facts indicate is likely. Overall, FPD officers’ use of canines reflects a culture in which officers choose not to use the skills and tactics that could resolve a situation without injuries, and instead deploy tools and methods that are almost guaranteed to produce an injury of some type.
FPD’s use of canines is part of its pattern of excessive force in violation of the Fourth Amendment. In addition, FPD’s use of dog bites only against African-American subjects is evidence of discriminatory policing in violation of the Fourteenth Amendment and other federal laws.c. FPD’s Use of Force Is Sometimes Retaliatory and Punitive
Many FPD uses of force appear entirely punitive. Officers often use force in response to behavior that may be annoying or distasteful but does not pose a threat. The punitive use of force by officers is unconstitutional and, in many cases, criminal. See, e.g., Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1197 (9th Cir. 2002) (“The Due Process clause protects pretrial detainees from the use of excessive force that amounts to punishment.”); see also 18 U.S.C. § 242 (making willful deprivation of rights under color of law, such as by excessive force, a federal felony punishable by up to ten years in prison).
We reviewed many incidents in which it appeared that FPD officers used force not to counter a physical threat but to inflict punishment. The use of canines and ECWs, in particular, appear prone to such abuse by FPD. In April 2013, for example, a correctional officer deployed an ECW against an African-American prisoner, delivering a five-second shock, because the man had urinated out of his cell onto the jail floor. The correctional officer observed the man on his security camera feed inside the booking office. When the officer came out, some of the urine hit his pant leg and, he said, almost caused him to slip. “Due to the possibility of contagion,” the correctional officer claimed, he deployed his ECW “to cease the assault.” The ECW prongs, however, both struck the prisoner in the back. The correctional officer’s claim that he deployed the ECW to stop the ongoing threat of urine is not credible, particularly given that the prisoner was in his locked cell with his back to the officer at the time the ECW was deployed. Using less-lethal force to counter urination, especially when done punitively as appears to be the case here, is unreasonable. See Shumate v. Cleveland, 483 F. App’x 112, 114 (6th Cir. 2012) (affirming denial of summary judgment on an excessive-force claim against an officer who punched a handcuffed arrestee in response to being spit on, when the officer could have protected himself from further spitting by putting the arrestee in the back of a patrol car and closing the door).d. FPD Use of Force Often Results from Unlawful Arrest and Officer Escalation
A defining aspect of FPD’s pattern of excessive force is the extent to which force results from unlawful stops and arrests, and from officer escalation of incidents. Too often, officers overstep their authority by stopping individuals without reasonable suspicion and arresting without probable cause. Officers frequently compound the harm by using excessive force to effect the unlawful police action. Individuals encountering police under these circumstances are confused and surprised to find themselves being detained. They decline to stop or try to walk away, believing it within their rights to do so. They pull away incredulously, or respond with anger. Officers tend to respond to these reactions with force.
In January 2013, a patrol sergeant stopped an African-American man after he saw the man talk to an individual in a truck and then walk away. The sergeant detained the man, although he did not articulate any reasonable suspicion that criminal activity was afoot. When the man declined to answer questions or submit to a frisk—which the sergeant sought to execute despite articulating no reason to believe the man was armed—the sergeant grabbed the man by the belt, drew his ECW, and ordered the man to comply. The man crossed his arms and objected that he had not done anything wrong. Video captured by the ECW’s built-in camera shows that the man made no aggressive movement toward the officer. The sergeant fired the ECW, applying a five-second cycle of electricity and causing the man to fall to the ground. The sergeant almost immediately applied the ECW again, which he later justified in his report by claiming that the man tried to stand up. The video makes clear, however, that the man never tried to stand—he only writhed in pain on the ground. The video also shows that the sergeant applied the ECW nearly continuously for 20 seconds, longer than represented in his report. The man was charged with Failure to Comply and Resisting Arrest, but no independent criminal violation.
In a January 2014 incident, officers attempted to arrest a young African-American man for trespassing on his girlfriend’s grandparents’ property, even though the man had been invited into the home by the girlfriend. According to officers, he resisted arrest, requiring several officers to subdue him. Seven officers repeatedly struck and used their ECWs against the subject, who was 5’8” and 170 pounds. The young man suffered head lacerations with significant bleeding.
In the above examples, force resulted from temporary detentions or attempted arrests for which officers lacked legal authority. Force at times appeared to be used as punishment for non-compliance with an order that lacked legal authority. Even where FPD officers have legal grounds to stop or arrest, however, they frequently take actions that ratchet up tensions and needlessly escalate the situation to the point that they feel force is necessary. One illustrative instance from October 2012 began as a purported check on a pedestrian’s well-being and ended with the man being taken to the ground, drive-stunned twice, and arrested for Manner of Walking in Roadway and Failure to Comply. In that case, an African-American man was walking after midnight in the outer lane of West Florissant Avenue when an officer asked him to stop. The officer reported that he believed the man might be under the influence of an “impairing substance.” When the man, who was 5’5” and 135 pounds, kept walking, the officer grabbed his arm; when the man pulled away, the officer forced him to the ground. Then, for reasons not articulated in the officer’s report, the officer decided to handcuff the man, applying his ECW in drive-stun mode twice, reportedly because the man would not provide his hand for cuffing. The man was arrested but there is no indication in the report that he was in fact impaired or indeed doing anything other than walking down the street when approached by the officer.
In November 2011, officers stopped a car for speeding. The two African-American women inside exited the car and vocally objected to the stop. They were told to get back in the car. When the woman in the passenger seat got out a second time, an officer announced she was under arrest for Failure to Comply. This decision escalated into a use of force. According to the officers, the woman swung her arms and legs, although apparently not at anyone, and then stiffened her body. An officer responded by drive-stunning her in the leg. The woman was charged with Failure to Comply and Resisting Arrest.
As these examples demonstrate, a significant number of the documented use-of-force incidents involve charges of Failure to Comply and Resisting Arrest only. This means that officers who claim to act based on reasonable suspicion or probable cause of a crime either are wrong much of the time or do not have an adequate legal basis for many stops and arrests in the first place. Cf. Lewis v. City of New Orleans, 415 U.S. 130, 136 (1974) (Powell, J., concurring) (cautioning that an overbroad code ordinance “tends to be invoked only where there is no other valid basis for arresting an objectionable or suspicious person” and that the “opportunity for abuse . . . is self-evident”). This pattern is a telltale sign of officer escalation and a strong indicator that the use of force was avoidable.e. FPD Officers Have a Pattern of Resorting to Force Too Quickly When Interacting with Vulnerable Populations
Another dimension of FPD’s pattern of unreasonable force is FPD’s overreliance on force when interacting with more vulnerable populations, such as people with mental health conditions or intellectual disabilities and juvenile students.i. Force Used Against People with Mental Health Conditions or Intellectual Disabilities
The Fourth Amendment requires that an individual’s mental health condition or intellectual disability be considered when determining the reasonableness of an officer’s use of force. See Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir. 2004) (explaining in case concerning use of force against a detainee with autism that “[t]he diminished capacity of an unarmed detainee must be taken into account when assessing the amount of force exerted”); see also Phillips v. Community Ins. Corp., 678 F.3d 513, 526 (7th Cir. 2012); Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001); Giannetti v. City of Stillwater, 216 F. App’x 756, 764 (10th Cir. 2007). This is because people with such disabilities “may be physically unable to comply with police commands.” Phillips, 678 F.3d at 526. Our review indicates that FPD officers do not adequately consider the mental health or cognitive disability of those they suspect of wrongdoing when deciding whether to use force.
Ferguson is currently in litigation against the estate of a man with mental illness who died in September 2011 after he had an ECW deployed against him three times for allegedly running toward an officer while swinging his fist. See Estate of Moore v. Ferguson Police Dep't, No. 4:14-cv-01443 (E.D. Mo. filed Aug. 19, 2014). The man had been running naked through the streets and pounding on cars that morning while yelling “I am Jesus.” The Eighth Circuit recently considered a similar set of allegations in De Boise v. Taser Intern., Inc., 760 F.3d 892 (8th Cir. 2014). There, a man suffering from schizophrenia, who had run naked in and out of his house and claimed to be a god, died after officers used their ECWs against him multiple times because he would not stay on the ground. Id. at 897-98. Although the court resolved the case on qualified immunity grounds without deciding the excessive-force issue, the one judge who reached that issue opined that the allegations could be sufficient to establish a Fourth Amendment violation. Id. at 899-900 (Bye, J., dissenting).
In 2013, FPD stopped a man running with a shopping cart because he seemed “suspicious.” According to the file, the man was “obviously mentally handicapped.” Officers took the man to the ground and attempted to arrest him for Failure to Comply after he refused to submit to a pat-down. In the officers’ view, the man resisted arrest by pulling his arms away. The officers drive-stunned him in the side of the neck. They charged him only with Failure to Comply and Resisting Arrest. In August 2011, officers used an ECW device against a man with diabetes who bit an EMT’s hand without breaking the skin. The man had been having seizures when he did not comply with officer commands.
In August 2010, an officer responded to a call about an African-American man walking onto the highway and lying down on the pavement. Seeing that the man was sweating, acting jittery, and had dilated pupils, the officer believed he was on drugs. The man was cooperative at first but balked, pushing the officer back when the officer tried to handcuff him for safety reasons. The officer struck the man several times with his Asp® baton—including once in the head, a form of deadly force—causing significant bleeding. Two other officers then deployed their ECWs against the man a total of five times.
Jail staff have also reacted to people with mental health conditions by resorting to greater force than necessary. For example, in July 2011, a correctional officer used an ECW to drive-stun an African-American male inmate three times after he tried to hang himself with material torn from a medical dressing and banged his head on the cell wall. That same month, a correctional officer used an ECW against an African-American inmate with bipolar disorder who broke the overhead glass light fixture and tried to use it to cut his wrists. According to the correctional officer, the glass was “safety glass” and could not be used to cut the skin.
These incidents indicate a pattern of insufficient sensitivity to, and training about, the limitations of those with mental health conditions or intellectual disabilities. Officers view mental illness as narcotic intoxication, or worse, willful defiance. They apply excessive force to such subjects, not accounting for the possibility that the subjects may not understand their commands or be able to comply with them. And they have been insufficiently trained on tactics that would minimize force when dealing with individuals who are in mental health crisis or who have intellectual disabilities.ii. Force Used Against Students
FPD’s approach to policing impacts how its officers interact with students, as well, leading them to treat routine discipline issues as criminal matters and to use force when communication and de-escalation techniques would likely resolve the conflict.
FPD stations two School Resource Officers in the Ferguson-Florissant School District,  one at Ferguson Middle School and one at McCluer South-Berkeley High School. The stated mission of the SRO program, according to the memorandum of understanding between FPD and the school district, is to provide a safe and secure learning environment for students. But that agreement does not clearly define the SROs’ role or limit SRO involvement in cases of routine discipline or classroom management. Nor has FPD established such guidance for its SROs or provided officers with adequate training on engaging with youth in an educational setting. The result of these failures, combined with FPD’s culture of unreasonable enforcement actions more generally, is police action that is unreasonable for a school environment.
For example, in November 2013, an SRO charged a ninth grade girl with several violations after she refused to follow his orders to walk to the principal’s office. The student and a classmate, both 15-year-old African-American girls, had gotten into a fight during class. When the officer responded, school staff had the two girls separated in a hallway. One refused the officer’s order to walk to the principal’s office, instead trying to push past staff toward the other girl. The officer pushed her backward toward a row of lockers and then announced that she was under arrest for Failure to Comply. Although the officer agreed not to handcuff her when she agreed to walk to the principals’ office, he forwarded charges of Failure to Comply, Resisting Arrest, and Peace Disturbance to the county family court. The other student was charged with Peace Disturbance.
FPD officers respond to misbehavior common among students with arrest and force, rather than reserving arrest for cases involving safety threats. As one SRO told us, the arrests he made during the 2013-14 school year overwhelmingly involved minor offenses—Disorderly Conduct, Peace Disturbance, and Failure to Comply with instructions. In one case, an SRO decided to arrest a 14-year-old African-American student at the Ferguson Middle School for Failure to Comply when the student refused to leave the classroom after getting into a trivial argument with another student. The situation escalated, resulting in the student being drive-stunned with an ECW in the classroom and the school seeking a 180-day suspension for the student. SROs’ propensity for arresting students demonstrates a lack of understanding of the negative consequences associated with such arrests. In fact, SROs told us that they viewed increased arrests in the schools as a positive result of their work. This perspective suggests a failure of training (including training in mental health, counseling, and the development of the teenage brain); a lack of priority given to de-escalation and conflict resolution; and insufficient appreciation for the negative educational and long-term outcomes that can result from treating disciplinary concerns as crimes and using force on students. See Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline, U.S. Dep’t of Justice & U.S. Dep’t of Education, http://www.justice.gov/crt/about/edu/documents/dcl.pdf
(2014) (citing research and providing guidance to public schools on how to comply with federal nondiscrimination law).