PART 6 OF 6
3. FPD’s Failure to Respond to Complaints of Officer Misconduct Further Erodes Community TrustPublic trust has been further eroded by FPD’s lack of any meaningful system for holding officers accountable when they violate law or policy. Through its system for taking, investigating, and responding to misconduct complaints, a police department has the opportunity to demonstrate that officer misconduct is unacceptable and unrepresentative of how the law enforcement agency values and treats its constituents. In this way, a police department’s internal affairs process provides an opportunity for the department to restore trust and affirm its legitimacy. Similarly, misconduct investigations allow law enforcement the opportunity to provide community members who have been mistreated a constructive, effective way to voice their complaints. And, of course, effective internal affairs processes can be a critical part of correcting officer behavior, and improving police training and policies.
Ferguson’s internal affairs system fails to respond meaningfully to complaints of officer misconduct. It does not serve as a mechanism to restore community members’ trust in law enforcement, or correct officer behavior. Instead, it serves to contrast FPD’s tolerance for officer misconduct against the Department’s aggressive enforcement of even minor municipal infractions, lending credence to a sentiment that we heard often from Ferguson residents: that a “different set of rules” applies to Ferguson’s police than to its African-American residents, and that making a complaint about officer misconduct is futile.
Despite the statement in FPD’s employee misconduct investigation policy that “[t]he integrity of the police department depends on the personal integrity and discipline of each employee,” FPD has done little to investigate external allegations that officers have not followed FPD policy or the law, or, with a few notable exceptions, to hold officers accountable when they have not. Ferguson Police Department makes it difficult to make complaints about officer conduct, and frequently assumes that the officer is telling the truth and the complainant is not, even where objective evidence indicates that the reverse is true.
It is difficult for individuals to make a misconduct complaint against an officer in Ferguson, in part because Ferguson both discourages individuals from making complaints and discourages City and police staff from accepting them. In a March 2014 email, for example, a lieutenant criticized a sergeant for taking a complaint from a man on behalf of his mother, who stayed in her vehicle outside the police station. Despite the fact that Ferguson policy requires that complaints be taken “from any source, identified or anonymous,” the lieutenant stated “I would have had him bring her in, or leave.” In another instance, a City employee took a complaint of misconduct from a Ferguson resident and relayed it to FPD. An FPD captain sent an email in response that the City employee viewed as being “lectured” for taking the complaint. The City Manager agreed, calling the captain’s behavior “not only disrespectful and unacceptable, but it is dangerous in [that] it is inciteful [sic] and divisive.” Nonetheless, there appeared to be no follow-up action regarding the captain, and the complaint was never logged as such or investigated.
While official FPD policy states clearly that officers must “never attempt to dissuade any citizen from lodging a complaint,” FPD General Order 301.3, a contrary leadership message speaks louder than policy. This message is reflected in statements by officers that indicate a need to justify their actions when they do accept a civilian complaint. In one case, a sergeant explained: “Nothing I could say helped, he demanded the complaint forms which were provided.” In another: “I spoke to [two people seeking to make a complaint] . . . but after the conversation, neither had changed their mind and desired still to write out a complaint.” We saw many instances in which people complained of being prevented from making a complaint, with no indication that FPD investigated those allegations. In one instance, for example, a man alleging significant excessive force reported the incident to a commander after being released from jail, stating that he was unable to make his complaint earlier because several different officers refused to let him speak to a sergeant to make a complaint about the incident and threatened to keep him in jail longer if he did not stop asking to make a complaint.
Some individuals also fear that they will suffer retaliation from officers if they report misconduct or even merely speak out as witnesses when approached by someone from FPD investigating a misconduct complaint. For instance, in one case FPD acknowledged that a witness to the misconduct was initially reluctant to complete a written statement supporting the complainant because he wanted no “repercussions” from the subject officer or other officers. In another case involving alleged misconduct at a retail store that we have already described, the store’s district manager told the commander he did not want an investigation—despite how concerned he was by video footage showing an officer training his gun on two store employees as they took out the trash—because he wanted to “stay on the good side” of the police.
Even when individuals do report misconduct, there is a significant likelihood it will not be treated as a complaint and investigated. In one case, FPD failed to open an investigation of an allegation made by a caller who said an officer had kicked him in the side of the head and stepped on his head and back while he was face down with his hands cuffed behind his back, all the while talking about having blood on him from somebody else and “being tired of the B.S.” The officer did not stop until the other officer on the scene said words to the effect of, “[h]ey, he’s not fighting he’s cuffed.” The man alleged that the officer then ordered him to “get the f*** up” and lifted him by the handcuffs, yanking his arms backward. The commander taking the call reported that the man stated that he supported the police and knew they had a tough job but was reporting the incident because it appeared the officer was under a lot of stress and needed counseling, and because he was hoping to prevent others from having the experience he did. The commander’s email regarding the incident expressed no skepticism about the veracity of the caller’s report and was able to identify the incident (and thus the involved officers). Yet FPD did not conduct an internal affairs investigation of this incident, based on our review of all of FPD’s internal investigation files. There is not even an indication that a use-of-force report was completed.
In another case, an FPD commander wrote to a sergeant that despite a complainant being “pretty adamant that she was profiled and that the officer was rude,” the commander “didn’t even bother to send it to the chief for a control number” before hearing the sergeant’s account of the officer’s side of the story. Upon getting the officer’s account second hand from the sergeant, the commander forwarded the information to the Police Chief so that it could be “filed in the non-complaint file.” FPD officers and commanders also often seek to frame complaints as being entirely related to complainants’ guilt or innocence, and therefore not subject to a misconduct investigation, even though the complaint clearly alleges officer misconduct. In one instance, for example, commanders told the complainant to go to court to fight her arrest, ignoring the complainant’s statement that the officer arrested her for Disorderly Conduct and Failure to Obey only after she asked for the officer’s name. In another instance, a commander stated that the complainant made no allegations unrelated to the merits of the arrest, even though the complainant alleged rudeness and being “intimidated” during arrest, among a number of other non-guilt related allegations.
FPD appears to intentionally not treat allegations of misconduct as complaints even where it believes that the officer in fact committed the misconduct. In one incident, for example, a supervisor wrote an email directly to an officer about a complaint the Police Chief had received about an officer speeding through the park in a neighboring town. The supervisor informed the officer that the Chief tracked the car number given by the complainant back to the officer, but assured the officer that the supervisor’s email was “[j]ust for your information. No need to reply and there is no record of this other than this email.” In another instance referenced above, the district manager of a retail store called a commander to tell him that he had a video recording that showed an FPD officer pull up to the store at about midnight while two employees were taking out the trash, take out his weapon, and put it on top of a concrete wall, pointed at the two employees. When the employees said they were just taking out the trash and asked the officer if he needed them to take off their coats so that he could see their uniforms, the officer told the employees that he knew they were employees and that if he had not known “I would have put you on the ground.” The commander related in an email to the sergeant and lieutenant that “there is no reason to doubt the Gen. Manager because he said he watched the video and he clearly saw a weapon—maybe the sidearm or the taser.” Nonetheless, despite noting that “we don’t need cowboy” and the “major concern” of the officer taking his weapon out of his holster and placing it on a wall, the commander concluded, “[n]othing for you to do with this other than make a mental note and for you to be on the lookout for that kind of behavior.” [55]
In another case, an officer investigating a report of a theft at a dollar store interrogated a minister pumping gas into his church van about the theft. The man alleged that he provided his identification to the officer and offered to return to the store to prove he was not the thief. The officer instead handcuffed the man and drove him to the store. The store clerk reported that the detained man was not the thief, but the officer continued to keep the man cuffed, allegedly calling him “f*****g stupid” for asking to be released from the cuffs. The man went directly to FPD to file a complaint upon being released by the officer. FPD conducted an investigation but, because the complainant did not respond to a cell phone message left by the investigator within 13 days, reclassified the complaint as “withdrawn,” even as the investigator noted that the complaint of improper detention would otherwise have been sustained, and noted that the “[e]mployee has been counseled and retraining is forthcoming.” In still another case, a lieutenant of a neighboring agency called FPD to report that a pizza parlor owner had complained to him that an off-duty FPD officer had become angry upon being told that police discounts were only given to officers in uniform and said to the restaurant owner as he was leaving, “I hope you get robbed!” The allegation was not considered a complaint and instead, despite its seriousness, was handled through counseling at the squad level. [56]
Even where a complaint is actually investigated, unless the complaint is made by an FPD commander, and sometimes not even then, FPD consistently takes the word of the officer over the word of the complainant, frequently even where the officer’s version of events is clearly at odds with the objective evidence. On the rare occasion that FPD does sustain an external complaint of officer misconduct, the discipline it imposes is generally too low to be an effective deterrent. [57]
Our investigation raised concerns in particular about how FPD responds to untruthfulness by officers. In many departments, a finding of untruthfulness pursuant to internal investigation results in an officer’s termination because the officer’s credibility on police reports and in providing testimony is subsequently subject to challenge. In FPD, untruthfulness appears not even to always result in a formal investigation, and even where sustained, has little effect. In one case we reviewed, FPD sustained a charge of untruthfulness against an officer after he was found to have lied to the investigator about whether he had engaged in an argument with a civilian over the loudspeaker of his police vehicle. FPD imposed only a 12-hour suspension on the officer. In addition, FPD appears not to have taken the officer’s untruthfulness into sufficient account in several subsequent complaints, including in at least one case in which the complainant alleged conduct very similar to that alleged in the case in which FPD found the officer untruthful. Nor, as discussed above, has FPD or the City disclosed this information to defendants challenging charges brought by the officer. In another case a supervisor was sustained for false testimony during an internal affairs investigation and was given a written reprimand. In another case in which an officer was clearly untruthful, FPD did not sustain the charge. [58] In that case, an officer in another jurisdiction was assigned to monitor an intersection in that city because an FPD-marked vehicle allegedly had repeatedly been running the stop sign at that intersection. While at that intersection, and while receiving a complaint from a person about the FPD vehicle, the officer saw that very vehicle “dr[iving] through the stop sign without tapping a brake,” according to a sergeant with the other jurisdiction. When asked to respond to these allegations, the officer wrote, unequivocally, “I assure you I don’t run stop signs.” It is clear from the investigative file that FPD found that he did, in fact, run stop signs, as the officer was given counseling. Nonetheless, the officer received a counseling memo that made no mention of the officer’s written denial of the misconduct observed by another law enforcement officer. This officer continues to write reports regarding significant uses of force, several of which our investigation found questionable. [59]
By failing to hold officers accountable, FPD leadership sends a message that FPD officers can behave as they like, regardless of law or policy, and even if caught, that punishment will be light. This message serves to condone officer misconduct and fuel community distrust.
4. FPD’s Lack of Community Engagement Increases the Likelihood of Discriminatory Policing and Damages Public TrustAlongside its divisive law enforcement practices and lack of meaningful response to community concerns about police conduct, FPD has made little effort in recent years to employ community policing or other community engagement strategies. This lack of community engagement has precluded the possibility of bridging the divide caused by Ferguson’s law enforcement practices, and has increased the likelihood of discriminatory policing.
Community policing and related community engagement strategies provide the opportunity for officers and communities to work together to identify the causes of crime and disorder particular to their community, and to prioritize law enforcement efforts. See Community Policing Defined 1-16 (U.S. Dep’t of Justice, Office of Community Oriented Policing Services, 2014). The focus of these strategies—in stark contrast to Ferguson’s current law enforcement approach—is on crime prevention rather than on making arrests. See Effective Policing and Crime Prevention: A Problem Oriented Guide for Mayors, City Managers, and County Executives 1-62 (U.S. Dep’t of Justice, Office of Community Oriented Policing Services, 2009). When implemented fully, community policing creates opportunities for officers and community members to have frequent, positive interactions with each other, and requires officers to partner with communities to solve particular public safety problems that, together, they have decided to address. Research and experience show that community policing can be more effective at crime prevention and at making people feel safer. See Gary Cordner, Reducing Fear of Crime: Strategies for Police 47 (U.S. Dep’t of Justice, Office of Community Oriented Policing Services, Jan. 2010) (“Most studies of community policing have found that residents like community policing and feel safer when it is implemented where they live and work.”) (citations omitted).
Further, research and law enforcement experience show that community policing and engagement can overcome many of the divisive dynamics that disconnected Ferguson residents and City leadership alike describe, from a dearth of positive interactions to racial stereotyping and racial violence. See, e.g., Glaser, supra, at 207-11 (discussing research showing that community policing and similar approaches can help reduce racial bias and stereotypes and improve community relations); L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 Ohio St. J. of Crim. L. 115, 143-47 (2014) (describing how fully implemented and inclusive community policing can help avoid racial stereotyping and violence); Strengthening the Relationship Between Law Enforcement and Communities of Color: Developing an Agenda for Action 1-20 (U.S. Dep’t of Justice, Office of Community Oriented Policing Services, 2014).
Ferguson’s community policing efforts appear always to have been somewhat modest, but have dwindled to almost nothing in recent years. FPD has no community policing or community engagement plan. FPD currently designates a single officer the “Community Resource Officer.” This officer attends community meetings, serves as FPD’s public relations liaison, and is charged with collecting crime data. No other officers play any substantive role in community policing efforts. Officers we spoke with were fairly consistent in their acknowledgment of this, and of the fact that this move away from community policing has been due, at least in part, to an increased focus on code enforcement and revenue generation in recent years. As discussed above, our investigation found that FPD redeployed officers to 12-hour shifts, in part for revenue reasons. There is some evidence that community policing is more difficult to carry out when patrol officers are on 12-hour shifts, and this appears to be the case in Ferguson. While many officers in Ferguson support 12-hour shifts, several told us that the 12-hour shift has undermined community policing. One officer said that “FPD used to have a strong community policing ethic—then we went to a 12-hour day.” Another officer told us that the 12-hour schedule, combined with a lack of any attempt to have officers remain within their assigned area, has resulted in a lack of any geographical familiarity by FPD officers. This same officer told us that it is viewed as more positive to write tickets than to “talk with your businesses.” Another officer told us that FPD officers should put less energy into writing tickets and instead “get out of their cars” and get to know community members.
One officer told us that officers could spend more time engaging with community members and undertaking problem-solving projects if FPD officers were not so focused on activities that generate revenue. This officer told us, “everything’s about the courts . . . the court’s enforcement priorities are money.” Another officer told us that officers cannot “get out of the car and play basketball with the kids,” because “we’ve removed all the basketball hoops—there’s an ordinance against it.” While one officer told us that there was a police substation in Canfield Green when FPD was more committed to community policing, another told us that now there is “nobody in there that anybody knows.”
City and police officials note that there are several active neighborhood groups in Ferguson. We reached out to each of these during our investigation and met with each one that responded. Some areas of Ferguson are well-represented by these groups. But City and police officials acknowledge that, since August 2014, they have realized that there are entire segments of the Ferguson community that they have never made an effort to know, especially African Americans who live in Ferguson’s large apartment complexes, including Canfield Green. While some City officials appear well-intentioned, they have also been too quick to presume that outreach to more disconnected segments of the Ferguson community will be futile. One City employee told us, “they think they do outreach, but they don’t,” and that some Ferguson residents do not even realize their homes are in Ferguson. Our investigation indicated that, while the City and police department may have to use different strategies for engagement in some parts of Ferguson than in others, true community policing efforts can have positive results. As an officer who has patrolled the area told us, “most of the people in Canfield are good people. They just don’t have a lot of time to get involved.”
5. Ferguson’s Lack of a Diverse Police Force Further Undermines Community TrustWhile approximately two-thirds of Ferguson’s residents are African American, only four of Ferguson’s 54 commissioned police officers are African American. Since August 2014, there has been widespread discussion about the impact this comparative lack of racial diversity within FPD has on community trust and police behavior. During this investigation we also heard repeated complaints about FPD’s lack of racial diversity from members of the Ferguson community. Our investigation indicates that greater diversity within Ferguson Police Department has the potential to increase community confidence in the police department, but may only be successful as part of a broader police reform effort.
While it does appear that a lack of racial diversity among officers decreases African Americans’ trust in a police department, this observation must be qualified. Increasing a police department’s racial diversity does not necessarily increase community trust or improve officer conduct. There appear to be many reasons for this. One important reason is that African-American officers can abuse and violate the rights of African-American civilians, just as white officers can. And African-American officers who behave abusively can undermine community trust just as white officers can. Our investigation indicates that in Ferguson, individual officer behavior is largely driven by a police culture that focuses on revenue generation and is infected by race bias. While increased vertical and horizontal diversity, racial and otherwise, likely is necessary to change this culture, it probably cannot do so on its own.
Consistent with our findings in Ferguson and other departments, research more broadly shows that a racially diverse police force does not guarantee community trust or lawful policing. See Diversity in Law Enforcement: A Literature Review 4 n.v. (U.S. Dep’t of Justice, Civil Rights Division, Office of Justice Programs, & U.S. Equal Employment Opportunity Commission, Submission to President’s Task Force on 21st Century Policing, Jan. 2015). The picture is far more complex. Some studies show that Africa-American officers are less prejudiced than white officers as a whole, are more familiar with African-American communities, are more likely to arrest white suspects and less likely to arrest black suspects, and receive more cooperation from African Americans with whom they interact on the job. See David A. Sklansky, Not Your Father’s Police Department: Making Sense of the New Demographics of Law Enforcement, 96 J. Crim. L. & Criminology 1209, 1224-25 (2006). But studies also show that African Americans are equally likely to fire their weapons, arrest people, and have complaints made about their behavior, and sometimes harbor prejudice against African-American civilians themselves. Id.
While a diverse police department does not guarantee a constitutional one, it is nonetheless critically important for law enforcement agencies, and the Ferguson Police Department in particular, to strive for broad diversity among officers and civilian staff. In general, notwithstanding the above caveats, a more racially diverse police department has the potential to increase confidence in police among African Americans in particular. See Joshua C. Cochran & Patricia Y. Warren, Racial, Ethnic, and Gender Differences in, Perceptions of the Police: The Salience of Officer Race Within the Context of Racial Profiling, 28(2) J. Contemp. Crim. Just. 206, 206-27 (2012). In addition, diversity of all types—including race, ethnicity, sex, national origin, religion, sexual orientation and gender identity—can be beneficial both to police-community relationships and the culture of the law enforcement agency. Increasing gender and sexual orientation diversity in policing in particular may be critical in re-making internal police culture and creating new assumptions about what makes policing effective. See, e.g., Sklansky, supra, at 1233-34; Richardson & Goff, supra, at 143-47; Susan L. Miller, Kay B. Forest, & Nancy C. Jurik, Diversity in Blue, Lesbian and Gay Police Officers in a Masculine Occupation, 5 Men and Masculinities 355, 355-85 (Apr. 2003). [60] Moreover, aside from the beneficial impact a diverse police force may have on the culture of the department and police-community relations, police departments are obligated under law to provide equal opportunity for employment. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Our investigation indicates that Ferguson can and should do more to attract and hire a more diverse group of qualified police officers.61 However, for these efforts to be successful at increasing the diversity of its workforce, as well as effective at increasing community trust and improving officer behavior, they must be part of a broader reform effort within FPD. This reform effort must focus recruitment efforts on attracting qualified candidates of all demographics with the skills and temperament to police respectfully and effectively, and must ensure that all officers—regardless of race—are required to police lawfully and with integrity.
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Notes:13. FPD policy states that “[o]fficers should document” all field contacts and field interrogation “relevant to criminal activity and identification of criminal suspects on the appropriate Department approved computer entry forms.” FPD General Order 407.00. Policy requires that a “Field Investigation Report” be completed for persons and vehicles “in all instances when an officer feels” that the subject “may be in the area for a questionable or suspicious purpose.” FPD General Order 422.01. In practice, however, FPD officers do not reliably document field contacts, particularly of pedestrians, and the department does not evaluate such field contacts.
14. FPD officers are not consistent in how they label this charge in their reports. They refer to violations of Section 29-16 as both “Failure to Comply” and “Failure to Obey.” This report refers to all violations of this code provision as “Failure to Comply.”
15. Other broad quality-of-life ordinances in the Ferguson municipal code, such as the disorderly conduct provision, may also be vulnerable to attack as unconstitutionally vague or overbroad. See Ferguson Mun. Code § 29-94 (defining disorderly conduct to include the conduct of “[a]ny person, while in a public place, who utters in a loud, abusive or threatening manner, any obscene words, epithets or similar abusive language”) (emphasis added).
16. The ordinance on interfering with arrest, detention, or stop, Ferguson Mun. Code § 29-17, does not actually permit arrest unless the subject uses or threatens violence, which did not occur here. Another code provision the officer may have relied on, § 29-19, is likely unconstitutionally overbroad because it prohibits obstruction of government operations “in any manner whatsoever.” See Hill, 482 U.S. at 455, 462, 466 (invalidating ordinance that made it unlawful to “in any manner oppose, molest, abuse, or interrupt any policeman in the execution of his duty”).
17. This set, however, did not include any substantive information on the August 9, 2014 shooting of Michael Brown by Officer Darren Wilson. That incident is being separately investigated by the Criminal Section of the Civil Rights Division and the U.S. Attorney’s Office for the Eastern District of Missouri.
18. ECWs have two modes. In dart mode, an officer fires a cartridge that sends two darts or prongs into a person’s body, penetrating the skin and delivering a jolt of electricity of a length determined by the officer. In drive-stun mode, sometimes referred to as “pain compliance” mode, an officer presses the weapon directly against a person’s body, pulling the trigger to activate the electricity. Many agencies strictly limit the use of ECWs in drive-stun mode because of the potential for abuse.
19. The Ferguson-Florissant School District serves over 11,000 students, about 80% of whom are African American. See Ferguson-Florissant District Demographic Data 2014 & 2015, Mo. Dep’t of Elementary & Secondary Educ.,
http://mcds.dese.mo.gov/guidedinquiry/P ... ation.aspx (last visited Feb. 26, 2015).
20. The influence of revenue on the court, described both in Part II and in Part III.B. of this Report, may itself be unlawful. See Ward v. Vill. of Monroeville, 409 U.S. 57, 58-62 (1972) (finding a violation of the due process right to a fair and impartial trial where a town mayor served as judge and was also responsible for the town’s finances, which were substantially dependent on “fines, forfeitures, costs, and fees” collected by the court).
21. As with many of the problematic court practices that we identify in this report, other municipalities in St. Louis County also have imposed a separate Failure to Appear charge, fine, and fee for missed court appearances and payments. Many continue to do so.
22. As discussed in Part II of this report, City officials have acknowledged several of these procedural deficiencies. In 2012, a City Councilmember, citing specific examples, urged against reappointing Judge Brockmeyer because he “often times does not listen to the testimony, does not review the reports or the criminal history of defendants, and doesn’t let all the pertinent witnesses testify before rendering a verdict.”
23. This finding of untruthfulness by a police officer constitutes impeachment evidence that must be disclosed in any trial in which the officer testifies for the City. Under the Fourteenth Amendment, the failure to disclose evidence that is “favorable to an accused” violates due process “where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). This duty applies to impeachment evidence, United States v. Bagley, 473 U.S. 667, 676 (1985), and it applies even if the defendant does not request the evidence, United States v. Agurs, 427 U.S. 97, 107 (1976). The duty encompasses, furthermore, information that should be known to the prosecutor, including information known solely by the police department. Kyles v. Whitley, 514 U.S. 419, 437 (1995). This constitutional duty to disclose appears to extend to municipal court cases, which can result in jail terms of up to three months under Section 29-2 of Ferguson’s municipal code. See City of Kansas City v. Oxley, 579 S.W.2d 113, 114 (Mo. 1979) (en banc) (holding that the due process standard of proof beyond a reasonable doubt applied in a municipal court speeding case because “the violation has criminal overtones”); see also City of Cape Girardeau v. Jones, 725 S.W.2d 904, 907-09 (Mo. Ct. App. 1987) (explaining that reasonable doubt standard applied to municipal trespass prosecution because municipal ordinance violations are “quasi-criminal,” and reversing two convictions based on privilege against self-incrimination). We are aware of at least two cases, from January 2015, in which the City called this officer as a witness without disclosing the finding of untruthfulness to the defense.
24. See City Courts, City of Ferguson,
http://www.fergusoncity.com/60/The-City ... pal-Courts (last visited Feb. 26, 2015). By contrast, the neighboring municipality of Normandy operates a court website with an entire page containing information regarding fine due dates, methods of payment, and different payment options, including the availability of payment plans for those who cannot afford to pay a fine in full. See How Do I Pay a Ticket / Fine?, City of Normandy,
http://www.cityofnormandy.gov/index.aspx?NID=570 (last visited Feb. 26, 2015).
25. Prior to September 2014, a second missed court appearance (or a single missed payment) would result not only in a warrant being issued, but also the imposition of an additional Failure to Appear charge. This charge was imposed automatically. It does not appear that there was any attempt by the court to inform individuals that a failure to appear could be excused upon a showing of good cause, or to provide individuals with an opportunity to make such a showing. Additionally, just as the court does not currently send any notice informing a defendant that an arrest warrant has been issued, the court did not send any notice that this additional Failure to Appear charge had been brought.
26. The email reports that the defendant, a black male, was booked into jail. This email does not provide the full context of the circumstances that led to the 10-day jail sentence and further information is required to assess the appropriateness of that order. Nonetheless, the email suggests that the court jailed a defendant for refusing to answer questions, which raises significant Fifth Amendment concerns. There is also no indication as to whether the defendant was represented or, if not, was allowed or afforded representation to defend against the contempt charge and 10-day sentence.
27. While Missouri provides a process to secure a temporary waiver of a license suspension, we have heard from many that this process can be difficult and, in any case, is only available in certain circumstances.
28. By initiating the license suspension procedure after a single missed appearance and without first providing notice or an opportunity to remedy the missed appearance, the court appears to have violated Missouri law. See Mo. Rev. Stat. § 302.341.1 (providing that after a missed appearance associated with a moving violation, a court “shall within ten days . . . inform the defendant by ordinary mail at the last address shown on the court records that the court will order the director of revenue to suspend the defendant’s driving privileges if the charges are not disposed of and fully paid within thirty days from the date of mailing”).
29. See City Courts, City of Ferguson,
http://www.fergusoncity.com/60/The-City ... pal-Courts (last visited Feb. 26, 2015); Ferguson Municipal Court, Your Missouri Courts,
http://www.courts.mo.gov/page.jsp?id=8862 (last visited Feb. 26, 2015).
30. Recently, the court has allowed some individuals over age 19 to resolve fines through community service, but that remains a rarity. See City of Ferguson Continues Court Reform Initiative by Offering Community Service Program, City of Ferguson (Dec. 15, 2014),
http://www.fergusoncity.com/CivicAlerts ... 70&ARC=699 (stating community service program was launched in partnership with Ferguson Youth Initiative in February 2014 “to assist teenagers and certain other defendants”).
31. As stated in the Missouri Municipal Court Handbook produced by the Circuit Court: “Defendants who fail or refuse to pay their fines and costs can be extremely difficult to deal with, but if there is a credible threat of incarceration if they do not pay, the job of collection becomes much easier.” Mo. Mun. Benchbook, Cir. Ct., Mun. Divs. § 13.6 (2010).
32. Ferguson officials have also told us that the arrest warrant is issued not because of the missed payment per se, but rather because the person missing the payment failed to abide by the court’s rules. But the Supreme Court has rejected that contention, too. In Bearden, the Court noted that the sentencing court’s stated concern “was that the petitioner had disobeyed a prior court order to pay the fine,” but found that the sentence nonetheless “is no more than imprisoning a person solely because he lacks funds” to pay. Bearden, 461 U.S. at 674.
33. Additionally, Ferguson’s municipal code provides: “When a sentence for violation of any provision of this Code or other ordinance of the city . . . includes a fine and such fine is not paid, or if the costs of prosecution adjudged against an offender are not paid, the person under sentence shall be imprisoned one day for every ten dollars ($10.00) of any such unpaid fine or costs . . . not to exceed a total of four (4) months.” Ferguson Mun. Code § 1-16. Our investigation did not uncover any evidence that the court has sentenced anyone to imprisonment pursuant to this statute in the past several years. Nonetheless, it is concerning that this statute, which unconstitutionally sanctions imprisonment for failing to pay a fine, remains in effect. Cf. Bearden v. Georgia, 461 U.S. 660, 671 (1983).
34. In December 2014, the court set forth a bond schedule for warrantless arrests, which provides that, for all but 14 code violations, a person arrested pursuant to a municipal code violation and brought to Ferguson City Jail shall be issued a citation or summons and released on his or her own recognizance without any bond payment required. For those 14 code violations requiring a bond, the court has set “fixed” bond amounts, although these are subject to the court’s discretion to raise or lower those amounts at the request of the City or the detained individual. The court’s recent order further provides that, even if an individual does not pay the bond required, he or she shall in any case be released after 12 hours, rather than the previous 72-hour limit.
35. For example, the recent orders fail to specify that, in considering whether to adjust the bond imposed, the court shall make an assessment of an individual’s ability to pay, and assign bond proportionately. Cf. Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (en banc) (noting that the incarceration of those who cannot afford to meet the requirements of a fixed bond schedule “without meaningful consideration of other possible alternatives” infringes on due process and equal protection requirements).
36. The court’s website states that the court window is open from 8:30 a.m. to 5:00 p.m., not 4:00 p.m. See City Courts, City of Ferguson,
http://www.fergusoncity.com/60/The-City ... pal-Courts (last visited Feb. 26, 2015).
37. Critically, however, when a person attends court after paying a bond and is assessed a fine, court staff members do automatically apply the bond already paid to the fine owed, and in fact require application of the bond to the fine regardless of the defendant’s wishes. Thus, the court has simultaneously asserted that it can apply a bond to a fine without a defendant’s consent when the bond would otherwise be returned to the defendant, but that it cannot apply a bond to a fine without a defendant’s consent when the bond would otherwise be forfeited into the City’s own accounts.
38. As noted above, FPD charges violations of Municipal Code Section 29-16 as both Failure to Obey and Failure to Comply. Court data carries forward this inconsistency.
39. While there are limitations to using basic population data as a benchmark when evaluating whether there are racial disparities in vehicle stops, it is sufficiently reliable here. In fact, in Ferguson, black drivers might account for less of the driving pool than would be expected from overall population rates because a lower proportion of blacks than whites is at or above the minimum driving age. See 2009-2013 5-Year American Community Survey, U.S. Census Bureau (2015) (showing higher proportion of black population in under-15 and under-19 age categories than white population). Ferguson officials have told us that they believe that black drivers account for more of the driving pool than their 67% share of the population because the driving pool also includes drivers traveling from neighboring municipalities—many of which have higher black populations than Ferguson. Our investigation casts doubt upon that claim. An analysis of zip-code data from the 53,850 summonses FPD issued from January 1, 2009 to October 14, 2014, shows that the African-American makeup for all zip codes receiving a summons—weighted by population size and the number of summonses received by people from that zip code—is 63%. Thus, there is substantial reason to believe that the share of drivers in Ferguson who are black is in fact lower than population data suggests.
40. Assessing contraband or “hit rates” is a generally accepted practice in the field of criminology to “operationaliz[e] the concept of ‘intent to discriminate.’” The test shows “bias against a protected group if the success rate of searches on that group is lower than on another group.” Nicola Persico & Petra Todd, The Hit Rates Test for Racial Bias in Motor-Vehicle Searches, 25 Justice Quarterly 37, 52 (2008). Indeed, as noted below, in assessing whether racially disparate impact is motivated by discriminatory intent for Equal Protection Clause purposes, disparity can itself provide probative evidence of discriminatory intent.
41. As noted above, African Americans received 90% of all citations issued by FPD from October 2012 to July 2014. This data shows that 86% of people receiving citations following an FPD traffic stop between October 2012 and October 2014 were African American.
42. It is generally accepted practice in the field of statistics to consider any result that would occur by chance less than five times out of 100 to be statistically significant.
43. Similar to the post-stop outcome disparities—which show disparities in FPD practices after an initial stop has been made—these figures show disparities in FPD practices after a decision to issue a citation has been made. Thus, these disparities are not based in any part on population data.
44. Although the state-mandated racial profiling data collected during traffic stops captures ethnicity in addition to race, most other FPD reports capture race only. As a result, these figures for non-African Americans include not only whites, but also non-black Latinos. That FPD’s data collection methods do not consistently capture ethnicity does not affect this report’s analysis of the disparate impact imposed on African Americans, but it has prevented an analysis of whether FPD practices also disparately impact Latinos. In 2010, Latinos comprised 1% of Ferguson’s population. See 2010 Census, U.S. Census Bureau (2010), available at
http://factfinder.census.gov/bkmk/table ... 0US2923986 (last visited Feb. 26, 2015).
45. The universe of cases in this and subsequent analyses consisted of cases filed in 2011 because, given that some cases endure for years, a more recent sample would have excluded a greater amount of data from case events that have not yet occurred.
46. The ten offenses or offense categories analyzed include: 1) Manner of Walking in Roadway; 2) Failure to Comply; 3) Resisting Arrest; 4) Peace Disturbance; 5) Failure to Obey; 6) High Grass and Weeds; 7) One Headlight; 8) Expired License Plate; 9) aggregated data for 14 different parking violation offenses; and 10) aggregated data for four different headlight offenses, including: One Headlight; Defective Headlights; No Headlights; and Failure to Maintain Headlights.
47. Ferguson’s discriminatory practices also violate Title VI and the Safe Streets Act, which, in addition to prohibiting some forms of unintentional conduct that has a disparate impact based on race, also prohibit intentionally discriminatory conduct that has a disparate impact. See 42 U.S.C. § 2000d; 42 U.S.C. § 3789d.
48. Social psychologists have long recognized the influence of implicit racial bias on decision making, and law enforcement experts have similarly acknowledged the impact of implicit racial bias on law enforcement decisions. See, e.g., R. Richard Banks, Jennifer L. Eberhardt, & Lee Ross, Discrimination and Implicit Bias in a Racially Unequal Society, 94 Cal. L. Rev. 1169 (2006); Tracey G. Gove, Implicit Bias and Law Enforcement, The Police Chief (October 2011).
49. We did find one instance in 2012 in which the City Manager forwarded an email that played upon stereotypes of Latinos, but within minutes of sending it, sent another email to the recipient in which he stated he had not seen the offensive part of the email and apologized for the “inappropriate and offensive” message. Police and court staff took no such corrective action, and indeed in many instances expressed amusement at the offensive correspondence.
50. We were able to review far more emails from FPD supervisors than patrol officers. City officials informed us that, while many FPD supervisors have their email accounts on hard drives in the police department, most patrol officers use a form of webmail that does not retain messages once they are deleted.
51 Richard Rothstein, The Making of Ferguson, Econ. Policy Inst. (Oct. 2014), available at
http://www.epi.org/publication/making-ferguson/.
52. See Missouri Vehicle Stops Report, Missouri Attorney General,
http://ago.mo.gov/VehicleStops/Reports.php?lea=161 (last visited Feb. 13, 2015).
53. Data for the entire state of Missouri shows an even higher “Disparity Index” for those years than the disparity index present in Ferguson. This raises, by the state’s own metric, considerable concerns about policing outside of Ferguson as well.
54. Although beyond the scope of this investigation, it appears clear that individuals’ experiences with other law enforcement agencies in St. Louis County, including with the police departments in surrounding municipalities and the County Police, in many instances have contributed to a general distrust of law enforcement that impacts interactions with the Ferguson police and municipal court.
55. This incident raises another concern regarding whether a second-hand informal account of a complaint, often the only record Ferguson retains, conveys the seriousness of the allegation of misconduct. In this illustrative instance, our conversation with a witness to this incident indicates that the officer pointed his weapon at each employee as he spoke to him, and threatened to shoot both, despite knowing that they were simply employees taking out the trash.
56. We found additional examples of FPD officers behaving in public in a manner that reflects poorly on FPD and law enforcement more generally. In November 2010, an officer was arrested for DUI by an Illinois police officer who found his car crashed in a ditch off the highway. Earlier that night he and his squad mates—including his sergeant—were thrown out of a bar for bullying a customer. The officer received a thirty-day suspension for the DUI. Neither the sergeant nor any officers was disciplined for their behavior in the bar. In September 2012, an officer stood by eating a sandwich while a fight broke out at an annual street festival. After finally getting involved to break up the fight, he publically berated and cursed at his squad mates, screamed and cursed at the two female street vendors who were fighting, and pepper-sprayed a handcuffed female arrestee in the back of his patrol car. The officer received a written reprimand.
57. While the Chief’s “log” of Internal Affairs (“IA”) investigations contains many sustained allegations, most of these were internally generated; that is, the complaint was made by an FPD employee, usually a commander. In addition, we found that a majority of complaints are never investigated as IA cases, or even logged as complaints. The Chief’s log, which he told us included all complaint investigations, includes 56 investigations from January 2010 through July 2014. Our review indicates that there were significantly more complaints of misconduct during this time period. Despite repeated requests, FPD provided us no other record of complaints received or investigated.
58. FPD may have initially accepted this as a formal complaint, but then informally withdrew it after completion of the investigation. No rationale is provided for doing so, but the case does not appear on the Chief’s IA investigation log, and another case with this same IA number appears instead.
59. Our review of FPD’s handling of misconduct complaints is just one source of our concern about FPD’s efforts to ensure that officers are truthful in their reports and testimony, and to take appropriate measures when they are not. As discussed above, our review of FPD offense and force reports also raises this concern.
60. While the emphasis in Ferguson has been on racial diversity, FPD also, like many police agencies, has strikingly disparate gender diversity: in Ferguson, approximately 55% of residents are female, but FPD has only four female officers. See 2010 Census, U.S. Census Bureau (2010), available at factfinder.census.gov/bkmk/table/1.0/en/DEC /10_DP/DPDP1/1600000US2923986 (last visited Feb. 26, 2015). During our investigation we received many complaints about FPD’s lack of gender diversity as well.
61. While not the focus of our investigation, the information we reviewed indicated that Ferguson’s efforts to retain qualified female and black officers may be compromised by the same biases we saw more broadly in the department. In particular, while the focus of our investigation did not permit us to reach a conclusive finding, we found evidence that FPD tolerates sexual harassment by male officers, and has responded poorly to allegations of sexual harassment that have been made by female officers.