Ferguson Releases Proposed Deal With Feds

The proposed agreement, negotiated over the course of months and behind closed doors, provides broad principles under which police officers should operate: Build community trust. Increase transparency. Strengthen accountability.
by | January 28, 2016 AT 12:40 PM

By Stephen Deere, Jeremy Kohler and Chuck Raasch

The proposed agreement, negotiated over the course of months and behind closed doors, provides broad principles under which police officers should operate: Build community trust. Increase transparency. Strengthen accountability.

But then it hones in on the details of their daily functions: Wear working body cameras at all times. Don't stop people only to check for warrants. Specifically articulate reasonable suspicion and probable cause when writing reports.

Now the City of Ferguson is asking residents to review the 131-page proposed consent decree between the city and the U.S. Department of Justice and give elected leaders their thoughts.

The agreement, which touches on nearly every aspect of the city's police and courts, has the potential to cripple the city financially, and residents have little time to scrutinize it.

Over the next two weeks, the city will hold public hearings, and then, on Feb. 9 -- the 18-month anniversary of Michael Brown's death -- the Ferguson City Council will decide whether to accept its conditions or reject them.

Should it choose the latter, Ferguson faces a costly lawsuit from the Justice Department.

The proposal allows the city to retain control of the police department and municipal court -- two operations critics have called for disbanding, but also specifies that Ferguson pay for a monitor to ensure the reforms are implemented -- estimated at $350,000 for the first year.

In recent weeks, the city council has agreed to put two tax increases on the April ballot -- an economic development sales tax and a property tax raising roughly $1.5 million per year.

The city's firefighters may also form a fire protection district, leaving Ferguson without the cost of its own fire department, saving another $2.2 million annually.

A statement from Ferguson described the negotiations as hard fought but having occurred in good faith.

"This agreement, if approved, avoids the time and cost of litigation and allows the City to continue its focus to ensure constitutional policing and court practices, and thus provides these benefits to the citizens of Ferguson," the statement said.

U.S. Rep. William Lacy Clay, D-St. Louis, said he was pleased with the amount of ground the agreement covered.

"It addresses all of the concerns of the Ferguson community, the people that were victimized by the structure of government in Ferguson, by the police department," Clay said in an interview with the Post-Dispatch.

But he brushed off complaints about cost saying, "if they had conducted themselves in a manner that abided by the Constitution of the United States and the state of Missouri, they would not be in this position."

The enormous amount of detail mirrors other Justice Department consent decrees, which leave little disagreement over what is expected and provide recourse if any provisions are not carried out. Agreements can last for several years.

RESPONSE TO PROTESTS

Negotiations between the two parties began months ago, shortly after the Justice Department denounced Ferguson's police and municipal court for constitutional violations and predatory policing in the aftermath of Brown's death.

As protest erupted, police responded with dogs, tear gas and armored vehicles with snipers. The images were broadcast throughout the nation, making Ferguson, a majority African-American community in north St. Louis County, appear as if it were under military occupation.

Journalists documenting events were arrested. Protesters were given orders to disperse that were later declared unconstitutional. Officers pointed rifles at the crowds using their scopes to search for threats.

The tactics, carried out mostly under the direction of St. Louis County Police, were widely condemned. As months wore on, Ferguson officers were sometimes left to respond to gatherings on their own, using measures also criticized.

The agreement prohibits any officer but the chief or the assistant chief from declaring an assembly unlawful. It forbids officers from ticketing or arresting anyone using a recording device, and demands the city establish a complaint process.

One provision seems to directly address criticisms that arose out from a gathering outside the police department on Feb. 9, 2015, the six-month anniversary of Brown's death, when someone scrawled profane messages in chalk on the department's walls, including a racial epithet directed at an African-American officer.

A video taken by a demonstrator shows an officer shouting, "Everybody here is going to jail," as police chase down protesters, eventually knocking a man down as he filmed the events and accusing him interfering, although his actions do not appear to obstruct police.

Officers also seized a camera worth an estimated $20,000 from an independent filmmaker and briefly turned it on inside the station. The filmmaker, Christopher Phillips, said the device's memory card was damaged when it was returned.

The agreement says officers must obtain warrants before seizing recordings or reviewing the contents of a recording device.

MUNICIPAL COURT

A Justice Department report published in March condemned what it called an often merciless and "constitutionally deficient" municipal court in Ferguson that operates "not with the primary goal of administering justice or protecting the rights of the accused, but of maximizing revenue."

Ferguson's court did not act as a neutral arbiter of law, the report said, but "primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the city's financial interests."

The proposal takes a kitchen sink approach to reform -- incorporating almost every idea put forward by activists and legal experts.

"It's pretty comprehensive," said Thomas Harvey, co-founder and executive director of Arch City Defenders, a nonprofit law group that has spearheaded municipal court reforms. "Some of the provisions are a little vague and it would be nice to have some bright-line rules but overall it looks pretty strong."

Under the agreement, municipal codes would be driven by public safety, not revenue. They would not use arrest warrants to collect civil court debts or hold people in custody who can't afford to post a bond.

The proposal addresses another tactic St. Louis-area police departments have used for years to arrest people without warrants. Police in St. Louis and St. Louis County routinely list someone as "wanted," allowing them to make an arrest and hold a suspect for 20 hours without a warrant -- a practice unique to St. Louis.

The agreement gives Ferguson a year to research legal alternatives to "wanted."

"Wanteds are a way the police in the region subvert requirements for a warrant," Harvey said. "It's a massive problem for people."

Among additional court reforms, the city would remove the court's oversight from the city finance director, drop pending cases and warrants initiated before Jan. 1, 2014, and all pending charges, fines and fees related to any charge of "failure to appear" in municipal court.

COMMUNITY POLICING, TRAINING AND USE OF FORCE

If the agreement is approved, police officers will attend numerous small meetings to foster trust between residents and establish various long-term programs to interact with the city's youth. The proposal directs the department to collect and analyze data to address crime trends, policing complaints, neighborhood quality of life issues and create a new board and committee to oversee the community policing plan.

"Our first, initial, cursory review of the proposed consent decree reveals that it is broad-ranging and covers many of the areas that are indicators of good community-oriented policing," said Jeffrey Mittman, executive director of ACLU of Missouri. "Obviously, we'll want to review in greater detail, and more importantly we'll also want to hear from the affected members of the community in Ferguson who had concerns about prior actions of the police department."

The agreement enumerates an extensive amount training for officers, including approximately 50 hours of annual in-service training.

The event that led to the decree occurred in August 2014 when Officer Darren Wilson encountered Brown, an unarmed 18-year-old on Canfield Drive. Wilson told investigators that Brown attacked him, reaching into his patrol SUV and trying to grab his gun.

Outside the vehicle, Brown charged Wilson, forcing the officer to shoot him multiple times, Wilson said. The incident drove many African-American residents from the county and elsewhere to the streets in protest.

Separate federal and state investigations found no evidence Wilson committed a crime.

The proposed decree, however, devotes 15 pages to regulating officers' use of force, outlining specific conditions under which they can use their firearms, Tasers, pepper spray and batons. The overall theme is that the department promote de-escalation techniques that create "space, resources, and options to resolve incidents," and to consider options other than force whenever possible.

Protester Robert Hudgins, a Ferguson City Council candidate, said that although the report seemed thorough, he was concerned some of the use of force provisions would not be enforceable because they were too subjective.

"I would say that in the use of force area, we often find that we will never be able to ascertain certain information," he said. "I guess I'm just coming from a place of pessimism. I just hope there's a real change in the culture."

Brown's death reinvigorated a national debate about race, police brutality, and unequal treatment of African-Americans in the court system, bringing the region's peculiar patchwork of municipalities under immense scrutiny.

Several cities in north St. Louis County depend on traffic tickets and arrest warrants for their revenue, often disproportionately targeting African-Americans. Legal advocates have acknowledged that Ferguson was far from the worst example.

John Ammann, a St. Louis University law professor and legal clinic supervisor who has sued numerous municipalities over court abuses, praised the agreement for its detail.

But, he said, many other cities accused of the same abuses need to be held accountable.

"This wasn't just about Ferguson," he said. "Two years ago, had you asked us which were the five worst cities for the operation of their municipal courts, Ferguson wasn't in the top five. So if the Justice Department is coming down this hard on Ferguson, it should be doing the same with these other cities too."

Kristen Taketa of the Post-Dispatch contributed to this report.

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