Case: 4:16-cv-00180 Doc. #: 1 Filed: 02/10/16 Page: 1 of 56 PageID #: 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA,

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Plaintiff,

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v.

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THE CITY OF FERGUSON,

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Defendant.

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__________________________________ )

No. ____________ COMPLAINT

INTRODUCTION Plaintiff, the United States of America (“United States”), brings this civil action against Defendant, the City of Ferguson (“City”), under the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. The City of Ferguson, through the Ferguson Police Department (“FPD”), the Ferguson Municipal Court, and the office of the City Prosecuting Attorney, engages in an ongoing pattern or practice of conduct, including discrimination, that deprives persons of rights, privileges and immunities secured and protected by the United States Constitution and federal law. Ferguson law enforcement officials conduct stops, searches, and arrests without legal justification, in violation of the Fourth Amendment; use excessive force, in violation of the Fourth Amendment; interfere with the right to free expression, in violation of the First Amendment; prosecute and resolve municipal charges in a manner that violates due process and equal protection guarantees

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of the Fourteenth Amendment; and discriminate against African Americans in violation of the Fourteenth Amendment and federal statutory law.
Defendant’s routine violation of constitutional and statutory rights, based in part on prioritizing the misuse of law enforcement authority as a means to generate municipal revenue over legitimate law enforcement purposes, is ongoing and pervasive. Further, it is unlikely that the City will remedy these patterns and practices of unlawful conduct absent judicial mandate and oversight. The United States brings this action to remedy Defendant’s unlawful conduct and secure the declaratory and injunctive relief needed to ensure compliance with the Constitution and federal law.
The United States alleges as follows: JURISDICTION AND VENUE
1. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1345.
2. The United States is authorized to initiate this action against the City under the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”), and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (“Title VI”).
3. Under Section 14141, the United States is authorized to bring suit against a state or local government for equitable and declaratory relief in order to remedy a pattern or practice of conduct by law enforcement officers that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or federal law. The United States is authorized to enforce Title VI, which, together with relevant implementing regulations, prohibits discrimination on the basis of race, color, or national origin by agencies receiving federal funds or federal financial assistance.
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4. The declaratory and injunctive relief sought by the United States is authorized by Section 14141, Title VI, 28 U.S.C. §§ 2201 and 2202.
5. Venue is proper under 28 U.S.C. § 1391(b) because the City is located in the Eastern District of Missouri and all of the events, actions, or omissions giving rise to these claims occurred in the Eastern District of Missouri.
PARTIES 6. Plaintiff is the United States of America. 7. Defendant City of Ferguson is a municipal corporation located in the Eastern District of Missouri. The City funds and operates the Ferguson Police Department, the Ferguson Municipal Court, and the office of the City Prosecuting Attorney, as well as other City agencies.
FACTUAL ALLEGATIONS 8. The United States, pursuant to an extensive investigation of the Ferguson Police Department (“FPD”), including the Ferguson Municipal Court, alleges that, through its acts and omissions, Defendant and its agents engage in a pattern or practice of conduct that violates the First, Fourth, and Fourteenth amendments to the United States Constitution. 9. These patterns and practices include: conducting stops and searches, issuing citations and “stop orders,” making arrests, and using excessive force without legal justification in violation of the Fourth Amendment; engaging in retaliation for protected expression and impeding individuals’ right to record official activities conducted in public in violation of the First Amendment; prosecuting and resolving municipal charges in a manner that violates the due process and equal protection clauses of the Fourteenth Amendment; and engaging in racially discriminatory law enforcement conduct that violates the Fourteenth Amendment and Title VI.
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10. These patterns and practice are further reflected in, and caused by, the City’s: failure to establish consistent policies and procedures, effective training, and meaningful supervision to appropriately guide and monitor the actions of law enforcement officers and other agents of Defendant engaged in law enforcement activities; failure to establish reliable systems to detect and appropriately discipline and hold accountable officers for misconduct; and prioritizing revenue generation at the expense of the rights of individuals in Ferguson and public safety needs.
11. Since the commencement of the United States’ investigation, the City of Ferguson has made some changes to its police and municipal court practices. These changes are insufficient to eliminate the pattern or practice of unconstitutional conduct and ensure it will not recur. Given the nature, breadth, and long-standing commission of the City’s unconstitutional conduct, necessary remedial changes to Ferguson’s police and municipal court practices are unlikely to be implemented or maintained absent a court enforceable decree. A. FACTUAL BACKGROUND
12. The City of Ferguson is a municipal corporation in northern St. Louis County, Missouri. It is one of eighty-nine municipalities in the County.
13. According to the 2010 United States Census, Ferguson has approximately 21,000 residents. The overall population of Ferguson has remained relatively constant in recent decades, but a significant increase in African-American residents has considerably shifted demographics. In 1990, the City was predominantly white with 74% of the population identifying as white, and 25% as black. By 2000, African Americans made up 52% of the City’s population. Ten years later, in 2010, 67% of Ferguson’s population was black, and 29% white. Approximately 25% of the City’s population lives below the federal poverty level.
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14. Residents of Ferguson elect a Mayor and six individuals to the City Council. The City Council appoints a City Manager to an indefinite term, subject to removal by Council vote. The City Manager serves as chief executive and administrative officer of the City, and directs and supervises all City departments, including the Ferguson Police Department.
15. The City Manager appoints the Chief of Police. Thomas Jackson was the Chief from 2010 until he resigned effective March 19, 2015. In July 2015, the City appointed Andre Anderson as interim Chief of Police for a six-month period. Chief Anderson resigned effective December 2, 2015.
16. John Shaw was the City Manager of Ferguson from March 2007 until March 2015. Upon Mr. Shaw’s departure, then-Assistant City Manager Pamela Hylton became Acting City Manager, but she too resigned in April 2015. Acting City Manager Edward Beasley served from June 2015 to November 2015. Ferguson’s current City Manager is De’Carlon Seewood.
17. Jeffrey Blume has been the City’s Finance Director from March 2008 until the present.
18. As of March 2014, FPD had approximately 54 sworn officers, four of whom were African American. FPD had four patrol squads, each with its own canine officer.
19. All FPD officers can make stops, issue “stop orders,” issue summonses, issue citations, and make arrests for violations of Ferguson’s municipal code or state law. Ferguson’s municipal code establishes hundreds of municipal violations, some of which mirror non-felony state law violations. FPD files most charges as municipal code violations even if an analogous state offense exists.
20. Between July 1, 2010, and June 30, 2014, the City of Ferguson issued approximately 90,000 citations and summonses for municipal violations. During that period, the
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rate of citations steadily increased, and FPD issued nearly 50% more citations in the last year of that time period than it did in the first.
21. The Ferguson Municipal Court (“the court”) has primary jurisdiction over all charged violations of the municipal code. The court processes and resolves the majority of charges brought by FPD, including some charges brought against juveniles.
22. The court operates in the same building as the police department, located at 222 South Florissant Road, Ferguson, Missouri. The building underwent a roughly $3.5 million renovation that was completed in 2015. Long referred to as a “police court,” the court was under the direct supervision of the Chief of Police until 2015. Under the current supervisory structure, municipal court employees officially report to the City Finance Director. The Chief of Police, in practice, continues to supervise court employees in many respects.
23. The City Manager and City Council hire the employees of the court, including the City’s Prosecuting Attorney and assistant prosecutors, the Municipal Judge, and Court Clerk and assistant clerks. In practice, these employees work in coordination to resolve municipal charges pending before the court.
24. The City’s Prosecuting Attorney and her assistants officially prosecute all actions before the court. The current Prosecuting Attorney, Stephanie Karr, was appointed in April 2011. At the time of her appointment, the Prosecuting Attorney was already serving as City Attorney, and she continues to serve in that separate capacity, which entails providing general counsel and representation to the City.
25. The Municipal Judge presides over court sessions, which occur between three to six times per month. The Municipal Judge serves a two-year term, subject to reappointment. Judge Ronald Brockmeyer was the Municipal Judge in Ferguson for ten years until his
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resignation in March 2015, which came shortly before the Missouri Supreme Court reassigned all cases pending before the court to the Missouri Circuit Court. During his tenure as Ferguson Municipal Judge, Judge Brockmeyer also served as Municipal Judge for Breckenridge Hills and Municipal Prosecutor for Florissant, Vinita Park, and Dellwood. The current Municipal Judge, Donald McCullin, was appointed in June 2015. Because Missouri law prohibits municipal judges from serving after they reach the age of 75, Judge McCullin’s tenure is scheduled to end in April 2016.
26. The Court Clerk and assistant court clerks, all of whom are City employees and all of whom have operated under the supervision of the Chief of Police, exercise broad discretion in conducting the court’s daily operations. Ferguson’s municipal code confers broad authority on the Court Clerk, including authority to collect all fines and fees, accept guilty pleas, sign and issue subpoenas, and approve bond determinations. The Court Clerk and assistant clerks routinely issue arrest warrants and perform other judicial functions without judicial supervision.
27. As the number of charges initiated by FPD has increased in recent years, the size of the court’s docket has also increased. According to data the City reported to the Missouri State Courts Administrator, at the end of fiscal year 2009, the court had roughly 24,000 traffic cases and 28,000 non-traffic cases pending. As of October 31, 2014, both of those figures had roughly doubled to 53,000 and 50,000 cases, respectively. In fiscal year 2009, 16,178 new cases were filed, and 8,727 were resolved. In fiscal year 2014, by contrast, 24,256 new offenses were filed, and 10,975 offenses were resolved.
28. It is not uncommon for as many as 500 people to be scheduled to appear before the court in a single session, exceeding the court’s physical capacity and leading individuals to line up outside of court waiting to be heard. Many people have multiple offenses pending,
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resulting in the court frequently considering 1,200-1,500 offenses in a single session, and sometimes over 2,000 offenses in a single session.
29. Court staff has also increased in recent years. In January 2013 the City Manager requested and secured City Council approval to fund additional assistant court clerk positions because “each month we are setting new all-time records in fines and forfeitures,” and the funding for the additional positions “will be more than covered by the increase in revenues.”
30. The municipal code authorizes the court to impose imprisonment in the City jail for up to three months, a fine of up to $1,000 plus costs, or a combination thereof, for all violations. It is rare for a violation to result in a sentence of imprisonment, but the court routinely issues municipal arrest warrants for failure to pay fines or appear for court appearances, which commonly result in arrest and incarceration.
31. During the course of conduct described in this Complaint, Defendant has been and continues to be a recipient of federal financial assistance from the United States Department of Justice (“DOJ”), either directly or through another recipient of federal financial assistance.
32. FPD participates in the DOJ Equitable Sharing Program, which is administered by the DOJ Criminal Division, Asset Forfeiture and Money Laundering Section (“AFMLS”).
33. As a condition of receiving federal financial assistance, the City, through its authorized representatives, certified that it agreed to comply with all requirements imposed by Title VI and the federal regulations implementing Title VI. The assurances signed by the City bind subsequent recipients, including FPD, to which the City disburses the funds. The City is responsible for ensuring that subsequent recipients comply with the requirements of Title VI and its implementing regulations.
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34. Title VI and its implementing regulations prohibit intentional discrimination on the grounds of race, color, or national origin in any of a grant recipient’s or subrecipient’s operations, and they prohibit methods of administration that have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the grant recipient’s or subrecipient’s operations with respect to individuals of a particular race, color, or national origin. B. THE UNITED STATES’ INVESTIGATION AND FINDINGS REPORT
35. On September 4, 2014, the Civil Rights Division of the United States Department of Justice opened an investigation of the Ferguson Police Department. This investigation was initiated under the pattern-or-practice provisions of Section 14141, and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d (“Safe Streets Act”), and Title VI.
36. The investigation revealed an ongoing pattern or practice of unlawful conduct. On March 4, 2015, the United States notified Defendant of ongoing violations of the Constitution and federal law, including failures to comply with Title VI.
37. Between March 4, 2015, and February 9, 2016, the United States sought to engage with Defendant in an effort to secure voluntary compliance with Title VI and other laws. The United States’ efforts have been unsuccessful.
38. Pursuant to its authority under Section 14141 and Title VI, the United States has thus initiated this civil action in order to secure declaratory and injunctive relief that will bring an end to the longstanding pattern or practice of law enforcement misconduct within the City of Ferguson.
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C. DEFENDANT ENGAGES IN A PATTERN OR PRACTICE OF STOPPING, SEARCHING, CITING, AND ARRESTING INDIVIDUALS WITHOUT LEGAL JUSTIFICATION 39. The Ferguson Police Department conducts stops and searches, issues citations,
and makes arrests without legal justification. Ferguson officers routinely detain community members without reasonable suspicion and make arrests and issue stop orders and summonses without probable cause. As set out further below, Ferguson Police Department engages in at least two practices, the issuance and enforcement of what it calls “wanteds” or “stop orders,” and conducting what it calls “ped checks,” that routinely violate the Fourth Amendment.
40. Defendant engages in a pattern of unlawfully stopping and detaining individuals. For example, in October 2012, police officers pulled over an African-American man who had lived in Ferguson for 16 years, claiming that his passenger-side brake light was broken. The driver had replaced the light recently and knew it to be functioning properly. As one officer stated, “Let’s see how many tickets you’re going to get,” a second officer tapped his Electronic Control Weapon (“ECW”) on the roof of the man’s car. The officers wrote the man a citation for “tail light/reflector/license plate light out.” They refused to let the man show them that his car’s equipment was in order, warning him, “Don’t you get out of that car until you get to your house.” The man, who believed he had been racially profiled, went to the police station that night to show a sergeant that his brake- and license-plate-light worked. The sergeant responded that he would speak to the involved officers and “help [the man] out” regarding the citation.
41. In another example from July 2013, Ferguson police officers encountered an African-American man in a parking lot while on their way to arrest someone else at an apartment building. Although officers knew that the encountered man was not the person they had come to arrest, they handcuffed the man without reasonable suspicion and placed him in the back of a patrol car. The man turned out to be the intended arrestee’s landlord. The landlord went on to
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help the police conduct the intended arrest but later filed a complaint alleging racial discrimination and unlawful detention. Despite having handcuffed the landlord and placed him in a police car without any reason to believe he had done anything wrong, a police sergeant vigorously defended the officers’ actions, noting the detention as “minimal” and that the car was air conditioned. The sergeant’s response displays a disregard for the impact of being needlessly handcuffed and detained in the back of a vehicle, as well as a lack of understanding of the law: even temporary detention constitutes a deprivation of liberty and must be justified under the Fourth Amendment. The fact that a police supervisor defended this unlawful detention provides evidence that such stops were not isolated or aberrational, but rather were tolerated and even condoned.
42. Defendant conducts suspicionless, legally unsupported stops that they call “pedestrian checks” or “ped checks.” For example, in December 2013, officers went out and “ped checked those wandering around” in Ferguson’s apartment complexes. In another case, officers detained and “ped checked” a group of six African-American youths, ostensibly to investigate a call about drugs, even though that call described only a single subject. FPD’s “ped checks” routinely are investigatory detentions that do not meet the legal threshold required by the Fourth Amendment.
43. Defendant engages in a pattern of searching individuals without legal justification. As set forth below, this pattern disproportionately impacts African Americans, who are searched at higher rates than others, but who have contraband found on them significantly less often than others.
44. Ferguson police officers take retaliatory action, including issuing citations and making arrests, when a subject refuses an officer’s request for consent to conduct a search. FPD
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officers also conduct searches even where consent is refused and even where there is no other legal justification for conducting the search. In one example from 2012, an officer asked to search a man’s car. When the man objected, citing his constitutional rights, the officer arrested the man, reportedly at gunpoint, and charged him with multiple code violations.
45. Ferguson police officers arrest individuals even though they lack probable cause of a crime. This practice is particularly pronounced, though not limited to, arrests under Section 29-16, the City’s Failure to Comply ordinance. Officers routinely arrest individuals on this charge when individuals do not do what the officers demand, even when refusal is not a crime. For example, officers order individuals to stop despite lacking objective indicia that they are engaged in wrongdoing, and then arrest them for Failure to Comply with the order to stop, or similar violation.
46. FPD’s charging practices under Section 29-16(2) of Ferguson’s Failure to Comply ordinance also violates the Constitution. Section 29-16(2) makes it unlawful to “[f]ail to give information requested by a police officer in the discharge of his/her official duties relating to the identity of such person.” Officers routinely arrest individuals under Section 29-16(2) for failure to identify themselves despite lacking reasonable suspicion to stop them in the first place.
47. For example, in an October 2011 incident, a Ferguson police officer arrested two sisters who were backing their car into their driveway from the street. The officer claimed that the car had been idling in the middle of the street, warranting investigation, while the women claim they had pulled up outside their home to drop someone off when the officer arrived. The officer arrested one sister for failing to provide her identification when requested. He arrested the other sister for getting out of the car after being ordered to stay inside. The two sisters spent the next three hours in jail.
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48. FPD also circumvents the Fourth Amendment’s warrant requirement by using an officer-run system of “wanteds” or “stop orders” as a substitute for seeking judicial approval for arrest warrants, and arresting people on the basis of those wanted, often without probable cause. When officers believe a person has committed a crime but are not able to immediately locate that person, they enter a “wanted” into the statewide law enforcement database, indicating to all other law enforcement agencies that the person should be arrested if located. Officers are authorized to issue wanteds for serious state-level crimes and minor municipal code violations, including traffic offenses.
49. FPD officers repeatedly have issued wanteds based on less than probable cause for the purpose of effectuating an arrest and then developing probable cause. According to one detective, officers will issue a wanted if they “do not have enough probable cause to arrest.” For example, in December 2014, a Ferguson detective investigating a shooting emailed a county prosecutor to see if a warrant for a suspect could be obtained, since “a lot of state agencies won’t act on a wanted.” The prosecutor responded stating that although “[c]hances are” the crime was committed by the suspect, “we just don’t have enough for a warrant right now” because of weaknesses in the witness statement being relied upon. The detective subsequently entered a wanted for the subject into the system.
50. FPD also routinely enforces wanteds that are no longer valid because the information upon which they are based is no longer accurate or reliable, or the wanted has been rescinded by the issuing agency. In 2010, for example, an FPD supervisor wrote that “[a]s of late we have had subjects arrested that were wanted for other agencies brought in without being verified first. You guessed it, come to find out they were no longer wanted by the agencies and had to be released.” In 2014, the same supervisor cleared hundreds of invalid wanteds from the
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system, some of them over ten years old. Nonetheless, significant numbers of legally unsupported FPD wanteds remain in effect, and FPD and the City continue this practice.
51. Many unlawful stops, searches, citations, and arrests conducted or issued by Ferguson officers originate not from reasonable suspicion, but rather from an officer’s desire to check whether the subject has a municipal arrest warrant or wanted pending. Officers frequently approach individuals without any reasonable suspicion and demand identification. Where an individual refuses to provide identification, officers commonly issue charges under the Failure to Comply municipal ordinance, even though the officer had no legal justification to demand identification during the encounter. Where an individual provides identification, officers will determine whether the individual has outstanding municipal arrest warrants, even though the officer had no basis to suspect a warrant was outstanding. These stops violate the Fourth Amendment and reflect Ferguson’s focus on revenue generation rather than respect for individual rights and public safety.
D. DEFENDANT ENGAGES IN A PATTERN OR PRACTICE OF UNREASONABLE USE OF FORCE 52. Ferguson Police Department engages in a pattern or practice of using
unreasonable force in violation of the Fourth Amendment. Ferguson police officers routinely escalate encounters with individuals they perceive to be disobedient, and unreasonably use canines on unarmed subjects, including young juveniles. Some incidents of excessive force result from stops or arrests that have no basis in law, while others are punitive and retaliatory. In addition, officers use unnecessary force against vulnerable groups such as people with mental health conditions or cognitive disabilities, in part because FPD and the City have failed to provide officers sufficient training on interactions with these vulnerable populations, despite their awareness of the need for an availability of such training. In almost all cases, FPD fails to
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adequately supervise officers’ use of force; fails to meaningfully investigate use-of-force; and fails to hold officers accountable for use of force that is unlawful and/or in violation of FPD policy.
53. Further, in the 151 use-of-force incidents that FPD actually documented from 2010 to 2014, supervisors and command staff deemed only one in violation of FPD policy. The Chief of Police never once reversed a commander’s decision of whether to classify a use of force as reasonable or within policy.
54. FPD’s pattern or practice of excessive force includes using less-lethal 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 towards a cell.
55. FPD officers routinely deploy ECWs against individuals who have committed low-level offenses and who pose no immediate physical threat. 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. Use of ECWs in “drive-stun” mode is widely recognized to be particularly prone to abuse.
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56. 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 in his incident report 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 tried to justify in an official report by claiming, falsely, that the man tried to stand up. The video makes clear, however, that the man never tried to stand—he only writhed on the ground. 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 criminal violation for conduct from before the encounter with officers began. There is no evidence that the FPD found any fault in this sergeant’s use of force. This use of unreasonable force by a Ferguson police supervisor evidences that this practice is not aberrational, but rather tolerated and condoned.
57. Ferguson police officers deploy canines to bite individuals when the articulated facts do not justify their use. Officers use canines out of proportion to the threat posed by the people they encounter, leaving serious puncture wounds to nonviolent offenders, including children.
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58. In November 2013, for example, 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 checked the man’s name for warrants. The man fled when the officer learned that he had outstanding warrants. 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’s own report reflects that he had already checked and found no weapons on the man.
59. In December 2011, officers deployed a canine to bite an unarmed 14-year-old African-American boy who was apparently truant from school and waiting in an abandoned house for his friends. Officers claim they found the boy, who was 5’5” and 140 pounds, curled up in a ball inside a closet. According to the canine officer, even though four officers had control of the scene and there was no indication the boy might be armed, the officer deployed the dog, which bit the boy’s arm and caused puncture wounds, because the boy would not come out.
60. In December 2012, an officer deployed a canine to bite an unarmed 16-year-old boy who was suspected of stealing a car and who had run from police. The officer deployed the dog to extract the boy from a closet, without providing any warning at the closet door. Officers also applied three ECW stuns in quick succession, apparently in retaliation for the suspect’s flight.
61. FPD uses excessive force when interacting with persons with mental illness or intellectual disabilities. For example, 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
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the man was sweating, acting jittery, and had dilated pupils, the officer believed he was on drugs. The man was cooperative at first but then pushed away when the officer tried to handcuff him for safety reasons. The officer struck the man several times with his 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.
62. In 2013, FPD stopped a man running with a shopping cart because he seemed “suspicious.” According to FPD’s own file, the man had an obvious mental disability. 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. The officers claimed that the man resisted arrest by pulling his arms away. The officers drive-stunned him in the side of the neck. They charged him with Failure to Comply and Resisting Arrest.
63. Similarly, in April 2014, an intoxicated jail detainee climbed up on the bars in his cell and refused to get down when ordered to by the arresting officer and the correctional officer on duty. The correctional officer then fired an ECW at him, from outside the closed cell door, striking the detainee in the chest and causing him to fall to the ground. This use of force was excessive and violated FPD policy that “[p]roper consideration and care should be taken when deploying the X26 TASER on subjects who are in an elevated position or in other circumstance where a fall may cause substantial injury or death.” FPD General Order 499.04. Nonetheless, the reviewing supervisor deemed the use of force within policy.
64. In September 2011, a man with mental illness died after an FPD officer deployed an ECW against him four times in rapid succession after the man allegedly ran toward the 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). Despite objective signs the man may be in mental health crisis, the
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officer applied the ECW nearly continuously, deploying four charges for 21 seconds over a 23second period and leaving zero to one second between ECW applications. The officer’s use of the ECW, at least after the initial application, was unreasonable and excessive because the man did not pose a threat to the officer, the officer did not give the man the opportunity to comply, and the officer did not reassess the threat posed by the man between ECW applications.
65. FPD School Resource Officers (“SRO”) routinely treat routine discipline issues as criminal matters and use force when communication and de-escalation techniques would likely resolve the conflict.
66. At least one FPD officer has been the subject of a criminal investigation for use of force, specifically, sexual assault. In November 2013, correctional officer Jarvis Hayden was charged with one count of Public Servant Acceding to Corruption, two counts of Sexual Contact with an Inmate, and one count of Permitting Escape. The case is pending.
67. Officers frequently fail to report the force they use at all despite policy requiring that they do so. FPD has multiple offense and arrest reports that describe officers using force, but there is no corresponding use-of-force report. Of the nine cases between 2010 and 2014 in which officers claimed injury sustained from using force on the job, three have no corresponding use-of-force paperwork.
68. Even when force is reported, the force review process is perfunctory, at best, and fails to ensure that force is used properly and in a manner that improves officer safety. Supervisors almost never actually investigate force incidents, with most supervisor reports merely summarizing the involved officers’ version of events and sometimes relying on the officers’ offense reports alone. The supervisory review typically starts and ends with the presumption that the officer’s version of events is truthful and that the force was reasonable.
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69. As a consequence, though contrary to policy, supervisors almost never interview non-police witnesses, such as the arrestee or any independent witnesses. They do not review critical evidence even when it is readily available. For example, a significant portion of the documented uses of force occurs at the Ferguson jail, which employs surveillance cameras to monitor the area. However, FPD records provide no indication that a supervisor has ever sought to review the footage for a jail incident. Nor do supervisors examine ECW camera video, even though it is available for certain units. Sometimes, supervisors provide no remarks on the useof-force report, indicating simply, “see offense report.”
70. FPD does not perform any comprehensive review of force incidents sufficient to detect patterns of misconduct by a particular officer or unit, or patterns regarding a particular type of force. FPD does not keep records in a manner that would readily allow for such a review.
71. Ferguson officers have not been trained or incentivized to use de-escalation techniques to avoid or minimize force. Instead, they respond with impatience, frustration, and disproportionate force, and sometimes directly escalate force themselves. FPD’s weak oversight of officer use of force facilitates this abuse.
E. DEFENDANT ENGAGES IN A PATTERN OR PRACTICE OF VIOLATING FIRST AMENDMENT RIGHTS, INCLUDING THE RIGHT TO FREE EXPRESSION AND THE RIGHT TO RECORD PUBLIC POLICE ACTIVITIES 72. Defendant engages in a pattern or practice of violating First Amendment rights,
including the right to record public police activities and the right to free expression. 73. Ferguson officers routinely prohibit people from recording police activity, and
retaliate against those who do record. For example, in June 2014, an African-American couple took their children to play at a local park. The couple allowed their small children to urinate in
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shrubs 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 told him, “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 angry and yelled, “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 the mother, ostensibly for traffic violations. When the father pleaded with the officer, the officer 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.
74. In an effort to circumvent First Amendment protection of the right to record public police activity, FPD officers routinely claim without any factual support that the use of camera phones endangers officer safety. Sometimes, moreover, officers offer no rationale at all for interfering with individuals’ right to record. In one such incident from October 2013, a cell phone video shows an officer telling a civilian, “If you want to take a picture of me one more time, I’m going to lock your ass up.” When the civilian asked, “Do I not have the right to record?” the officer responded, inaccurately, “No, you don’t.” The officer arrested him for Failure to Comply.
75. 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. See Hussein v. County of St. Louis, Missouri et al., 4:14-cv-1410 (E.D. Mo. Nov. 21, 2014) (Doc. 39). To date, three separate parties have filed motions to show cause why the City
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of Ferguson should not be held in contempt of the consent order, based on interference with individuals’ First Amendment activities. See Hussein, 4:14-cv-1410 (show cause motions filed on March 6, 2015; October 20, 2015; and January 22, 2016). In August 2014, 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. See Abdullah v. County of St. Louis, Missouri, et al., 4:14-cv-1436 (E.D. Mo. Nov. 5, 2014) (Doc. 57).
76. These orders and agreements address discrete problems that remain ongoing, but they do not adequately ensure the remedy of Defendant’s First Amendment violations. Indeed, despite the lawsuits, FPD has continued to interfere with individuals’ rights to protest and record police activities.
77. Defendant makes retaliatory enforcement decisions based on the content of individuals’ expression. 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, which she regarded as unlawful. The officer had stopped the employee for “walking unsafely in the street” as he returned to work from the bank. The owner criticized the officer’s conduct, came out of her shop after being asked to stay inside, and called 911 to complain to the Chief of Police. The officer characterized her protestations as interference and arrested her inside her shop. The officer decided to arrest her only after the woman tried to contact the Chief of Police, and indicated that his intent was to retaliate against her for reporting his conduct.
78. Officers in Ferguson use their arrest power to retaliate against individuals for using offensive, but lawful, language to criticize police conduct. For example, one afternoon in September 2012, an officer stopped a 20-year-old African-American man for dancing in the
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middle of a residential street. The officer determined that the man did not have any outstanding warrants and told him that he was free to go. The man responded with offensive language. The officer warned the man to against using offensive language. When the man continued using the language, he was arrested for Manner of Walking in Roadway.
F. DEFENDANT ENGAGES IN A PATTERN OR PRACTICE OF PROSECUTING AND RESOLVING MUNICIPAL CHARGES IN A MANNER THAT VIOLATES THE DUE PROCESS AND EQUAL PROTECTION RIGHTS OF DEFENDANTS 79. Defendant prosecutes and resolves municipal violations charged by FPD in a
manner that violates due process and equal protection requirements. As a result of Defendant’s conduct, individuals are denied adequate notice and opportunities to resolve the charges brought against them, and may face repeated, prolonged, and unnecessary incarceration, lose their jobs, and become trapped in cycles of poverty that can be nearly impossible to escape solely because they cannot afford to pay the fines and fees imposed against them.
80. Many of these practices are the result of Defendant’s consistent emphasis on generating revenue. As a result of that emphasis, the court prioritizes the collection of fines and fees over the administration of justice or protecting the rights of individuals appearing before it. The priority the court has placed on maximizing revenue directly contributes to the unlawful police practices described herein. Further, the significant extent to which revenue considerations have shaped court operations, set forth in detail in paragraphs 141-50 of this Complaint, undermines the fundamental fairness and impartiality of the court in violation of due process.
81. Defendant, through its agents, has established and continues to implement practices and procedures that result in deprivations of due process and equal protection. These practices and procedures impede an individual’s ability to challenge or resolve a municipal charge, and result in additional penalties, including incarceration, that are imposed to compel the
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payment of court debts—even though the court does not deem any municipal violation to itself justify a penalty of incarceration.
82. As set forth in detail below, these deficient practices and procedures exist at nearly every stage of a case, and include: failing to provide individuals with adequate notice; failing to provide fair and impartial trials to those who seek to challenge their charges; imposing unduly high fines and fees without assessing an individual’s ability to pay or providing alternative penalties to fines for those who cannot afford them; issuing arrest warrants—and, until recently, additional “Failure to Appear” charges—when an individual misses a payment or other deadline solely to coerce payment and without determining if the defendant’s failure was willful or was instead due to an inability to pay; denying individuals against whom a warrant has issued access to a judicial hearing unless they are able to pay the set bond amount; and using a bond system that does not consider an incarcerated individual’s financial capacity, resulting in prolonged detention of indigent defendants who do not pose a threat to public safety solely because they cannot afford to pay the bond amount. Further, Defendant applies different procedures to individuals who are represented by counsel than individuals who are not, denying individuals who cannot afford an attorney equal treatment.
83. In violation of their constitutional due process rights, individuals who receive a Ferguson municipal citation or summons routinely do not receive adequate notice of the allegations made against them and a meaningful opportunity to be heard. They are often unable to determine how much is owed, where and how to pay the ticket, what the options for payment are, what rights the individual has, and what the consequences are for various actions or oversights.
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84. People cited by police for violating Ferguson’s Municipal Code are often provided with incomplete information regarding the charges brought against them. In June 2014, for instance, a court clerk wrote to an FPD officer: “The above ticket . . . does not have a speed in it. The guy came in and we had to send him away. Can you email me the speed when you get time.” People are also provided with incorrect information about the date and time of their assigned court session. In November 2012, for instance, court staff emailed the two patrol lieutenants asking: “Would you please be so kind to tell your squads to check their ct. dates and times. We are getting quite a few wrong dates and times [on tickets].” In some cases, citations fail to indicate the offense charged altogether. In November 2013, court staff asked FPD patrol to “see what [a] ticket was for” because it “does not have a charge on it.” As set forth below, individuals routinely face severe penalties for failing to resolve charges despite this pattern of inadequate notice.
85. These defects are also prevalent in cases in which FPD makes an arrest rather than issues a citation. Arrested individuals are sometimes not provided clear information regarding the charges against them. Further, while they can secure release from the Ferguson City Jail upon payment of a bond, the bond procedures used by the court depart from those articulated in official policy, and are arbitrary and confusing. Correctional officers have at times tried to find a arrested individual’s case file in order to determine the bond amount owed, but have been unable to do so, resulting in the person being unable to secure release. In some cases, people have attempted to pay a bond to secure the release of a family member arrested by FPD, but were unable to make the payment, despite appearing in person at FPD headquarters.
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86. The trial procedures provided to individuals who challenge the charges brought against them also violate due process guaranteed by the Constitution. Attempts to raise legal claims in the court are often met with retaliatory conduct.
87. The Prosecuting Attorney also fails to disclose information that is favorable to defendants challenging their charges, despite the constitutional duty to disclose such evidence. Brady v. Maryland, 373 U.S. 83 (1963); see also Giglio v. United States, 405 U.S. 150 (1972). 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). Individual defendants have, for instance, been deprived of information that an FPD officer testifying as a witness was previously found to be untruthful during an official FPD investigation.
88. Even where defendants are provided with adequate notice of their charges and opt not to challenge them, other court practices make resolving a case exceedingly difficult, particularly for indigent defendants. It is common for a single traffic stop or other encounter with FPD to give rise to fines in amounts that a person living in poverty is unable to immediately pay. This fact is attributable in part to FPD’s practice of issuing multiple citations—frequently three or more—on a single stop. This fact is also attributable to the significant fine amounts imposed. For example, the court has charged $302 for a single Manner of Walking violation; $427 for a single Peace Disturbance violation; $531 for High Grass and Weeds; $777 for Resisting Arrest; and $792 for Failure to Obey, and $527 for Failure to Comply, which officers appear to use interchangeably.
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89. The City’s desire to generate revenue influences fine amounts. City officials have extolled that Ferguson’s preset fines are “at or near the top of the list” compared with other municipalities across a large number of offenses, and have cited these fine amounts—which were lowered during the pendency of the United States’ investigation—as one of several measures taken to increase court revenues. For violations that do not have preset fines, Defendant has also taken measures to ensure fines are set sufficiently high for revenue purposes.
90. The court imposes significant fines without evaluating an individual’s ability to pay. Notably, this stands in direct tension with Missouri law, which instructs that in determining the amount and the method of payment of a fine, a court “shall, insofar as practicable, proportion the fine to the burden that payment will impose in view of the financial resources of an individual.” Mo. Rev. Stat. § 560.026.
91. Nor has Defendant typically offered community service as an alternative to payment of a fine. City officials have recognized the need to provide a meaningful community service option for indigent defendants. In August 2013, one City Councilmember wrote to the City Manager and the Mayor, noting that the City had long discussed creating such a program but had not done so, and discussing the benefits of such a program, including that it would “keep those people that simply don’t have the money to pay their fines from constantly being arrested and going to jail, only to be released and do it all over again.” The City increased available community service options following the commencement of the United States’ investigation, but the City’s practice in this area remains insufficient.
92. In lieu of proportioning a fine to a particular individual’s ability to pay, the court offers payment plans to those who cannot afford to immediately pay in full. But Defendant’s payment plans themselves facilitate constitutional violations. It is routine practice, for example,
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to immediately issue an arrest warrant when an individual on a payment plan misses a single payment, or makes a partial or untimely payment—without any notice or opportunity to explain why a required payment was missed.
93. Despite the pervasive procedural defects described herein, Defendant imposes significant penalties when individuals fail to meet payment requirements, appearances, or other court obligations. The court routinely issues municipal arrest warrants in response to missed payments or other missed requirements, and does so at a rate that City officials have called “staggering.”
94. As of December 2014, over 16,000 people had such warrants, almost all of which were issued for a missed payment or appearance. In fiscal year 2013 alone, the court issued warrants to approximately 9,000 persons. Many of those individuals had warrants issued on multiple charges, as the 9,000 warrants applied to roughly 32,000 different offenses. For example, a 90-year-old man had a warrant issued for his arrest after he failed to timely pay the five citations FPD issued to him during a single traffic stop in 2013.
95. The large number of warrants issued—and executed—is due to the fact that Defendant uses arrest warrants and the threat of arrest as its primary tool for collecting outstanding fines and fees. The warrants the court issues are not put in place for public safety purposes; Judge Brockmeyer and other City officials have stated so unequivocally. These warrants in fact run counter to public safety interests: they divert FPD resources that could be focused on promoting public safety to instead focus on the collection of court debts, and they erode trust in FPD and the court.
96. Prior to issuing these warrants, the City does not proactively inquire whether a missed payment or other obligation was willful or instead the result of an inability to pay.
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Moreover, even where individuals inform the court that they lack the financial capacity to make a required payment, the court rarely provides any relief.
97. An individual who owed $1,002 in fines and fees stemming from a Driving with a Revoked License charge wrote to a City official that he would be unable to make his required monthly payment but hoped to avoid having a warrant issued. He explained that he was unemployed, that the court had put him on a payment plan only a week before his first payment was due, and that he did not have enough time to gather enough money. He implored the City to provide “some kind of community service to work off the fines/fees,” stating that “I want to pay you guys what I owe” and “I have been trying to scrape up what I can,” but that “with warrants it’s hard to get a job.” The Court Clerk, noting that the underlying charge dated back to 2007, that five Failure to Appear charges had been levied, and that no payments had yet been made, responded: “In this certain case [the defendant] will go to warrant.”
98. In another example, in July 2014, an assistant court clerk wrote in an email that she rejected a defendant’s request to make a reduced monthly payment to the court on account of defendant’s inability to pay. Instead of granting the defendant’s request or providing the defendant with options to have the request heard by the Judge, the clerk told the defendant, “everyone says [they] can’t pay.”
99. Individuals are arrested for outstanding warrants by FPD officers without having known that a warrant was issued against them. Defendant fails to provide adequate notice when a warrant is issued. In the past, when the court issued a warrant it would also send notice to the individual that a warrant was issued against them and telling them to appear at the police department to resolve the matter. This notice did not provide the basis of the arrest warrant or describe how it might be resolved. In any case, Ferguson stopped providing even this
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incomplete notice in 2012. In explaining the decision to stop sending this warrant notice, the Court Clerk wrote in a June 2011 email to the Chief of Police that “this will save the cost of warrant cards and postage,” and “it is not necessary to send out these cards.”
100. Once an arrest warrant is issued, the individual against whom it has been issued cannot access any judicial hearing until the bond amount designated on the warrant is paid in full, even if the individual has not yet been arrested. Those individuals are thus denied the opportunity to establish good cause for the failure that led to the warrant being issued. This practice also impermissibly fails to provide indigent defendants with the same access to a judicial hearing that is available to those who have the ability to pay the bond amount.
101. FPD routinely executes the municipal arrest warrants issued by the court. 102. During the roughly six-month period from April to September 2014, 256 people were booked into the Ferguson City Jail after being arrested at least in part for an outstanding warrant—96% of whom were African American. Of these individuals, 28 were held for longer than two days, and 27 of these 28 people were black. During a larger period of time between October 2012 and October 2014, FPD arrested roughly 460 individuals following a vehicle stop solely because they had outstanding warrants. In some cases, individuals are incarcerated pursuant to municipal warrants solely because they could not afford to pay a fine or fee owed to the court. 103. Defendant’s bond practices deprive incarcerated indigent defendants of equal protection. Defendant sets bond amounts without regard to the incarcerated individual’s financial capacity. As a result, incarcerated individuals who cannot afford to pay their bond remain in jail, while those who can afford to pay are released. This practice has caused indigent
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defendants to remain in the Ferguson City Jail for days not because of any public safety need, but instead because of their lack of financial resources.
104. Additional deficiencies in Defendant’s bond practices further facilitate the pattern of unlawful law enforcement conduct. Bond amounts are mostly set by court staff and are rarely ever reviewed by a judicial officer. Officers sometimes collect cash bonds without recording which jail detainee paid them. And individuals are sometimes arrested after their bonds have been paid because the corresponding warrants were never cancelled.
105. In response to concerns raised during the United States’ investigation, Defendant implemented several changes to its bond practices. These changes, however, mainly apply to those who are detained following a warrantless arrest, and do not apply to those arrested on the basis of an outstanding municipal warrant. Even the minimal changes that have been made are inadequate, as the revised bond procedures regarding warrantless arrests continue to lack any provision for considering a defendant’s ability to pay in setting bond amounts.
106. In resolving charges, Defendant also uses different procedures for cases in which an individual is represented by counsel than the procedures used in cases in which an individual is not. Represented individuals, for example, are able to have pending municipal arrest warrants cleared without payment of a bond; unrepresented individuals are not.
107. There are instances in which Defendant intentionally gave expedited and preferential treatment to represented defendants. This same treatment is denied for pro se defendants. Similarly, by practice, the court grants continuances for represented defendants, but not for those defendants who do not have counsel.
108. The court also does not maintain appropriate independence from the Prosecuting Attorney. For example, the Prosecuting Attorney does not maintain case files separate from
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those maintained by the court. Instead, the Prosecuting Attorney’s files are comingled with the court’s file, and that file is treated as a shared file between the two entities, with the court sometimes using the file to respond to discovery requests. In one instance, for example, a City clerk and the Chief of Police forwarded an affidavit from an individual complaining about police conduct to Prosecuting Attorney Stephanie Karr. Ms. Karr responded: “I am assuming this person has a municipal court case. Just send the document over to [the Court Clerk] to put with the court file—if the document is in the court file, we will have a heads up that this person is a kook when we have to deal with him/her.” Comingling of case files in this manner undermines the fairness and impartiality of the court.
G. DEFENDANT’S LAW ENFORCEMENT CONDUCT DISPROPORTIONATELY HARMS FERGUSON’S AFRICAN-AMERICAN RESIDENTS AND IS DRIVEN BY RACIAL BIAS 109. The police and municipal court practices described herein disproportionately
harm African Americans. These disparities are not the necessary or unavoidable results of legitimate public safety efforts. Rather, the disproportionate harm to African Americans stems, at least in part, from racial bias, including racial stereotyping.
1. Defendant’s Law Enforcement Conduct Disparately Impacts African Americans
110. African Americans are disproportionately represented at nearly every stage of Ferguson law enforcement, including: traffic stops; searches; citations; arrests; fine assessments; municipal arrest warrants; and case dispositions. Data collected directly by police and court officials reveal racial disparities that are substantial and consistent across this wide range of police and court enforcement action.
111. The disparities are longstanding. FPD has collected data related to vehicle stops pursuant to State requirements since 2000. The data show disparate impact on African
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Americans in Ferguson for as long as that data has been reported. For example, in each of the last 14 years, the State-tracked “Disparity Index” calculation shows that African Americans are “over represented” in FPD’s vehicular stops.
112. Upon being stopped, African Americans are significantly more likely to be searched, cited, and arrested than other stopped individuals, even when controlling for non-race factors such as the stated reason the stop was initiated. For example, from October 2012 to October 2014, African Americans were more than twice as likely to be searched, to receive a citation, or to be arrested than other stopped individuals. These results are statistically significant and would occur by chance less than one time in 1000.
113. During that same time period, even though FPD searched African Americans at higher rates, African Americans were less likely to have contraband found on them than others to a statistically significant degree. Of the 31 searches reported by FPD that were purportedly conducted because the officer had reasonable suspicion that a crime was being committed and that the suspect was armed with a weapon, 30 were of black individuals; of the 103 times FPD asked both the driver and passenger to exit a vehicle during a search, the searched individuals were black in 95 cases; and, while only one search of a white person lasted more than half an hour (1% of all searches of white drivers), 59 searches of African Americans lasted that long (5% of all searches of black drivers).
114. African Americans disproportionately receive multiple citations during a single stop. In 2013, for instance, approximately half of all African Americans cited received multiple citations during a single encounter with FPD, whereas only approximately a quarter of nonAfrican Americans did. Between October 2012 to July 2014, 38 black individuals received four
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citations during a single incident, compared with only two white individuals; and while 35 black individuals received five or more citations at once, not a single white person did.
115. Data on charges issued by FPD from 2011-2013 shows that, for numerous municipal offenses for which FPD officers have a high degree of discretion in charging, African Americans are disproportionately represented relative to their representation in Ferguson’s population. For example, while African Americans make up 67% of Ferguson’s population, they make up 95% of Manner of Walking in Roadway charges; 94% of Failure to Comply charges; 92% of Resisting Arrest charges; 92% of Peace Disturbance charges; and 89% of Failure to Obey charges.
116. African Americans account for a smaller percentage of speeding citations based on radar or laser than they do of speeding citations based on other or unspecified methods. Controlling for other factors, the disparity in speeding tickets between African Americans and non-African Americans is significantly larger when citations are issued not on the basis of radar or laser, but by some other method, such as the officer’s own visual assessment.
117. African Americans account for 88% of all incidents from 2010 to August 2014 in which an FPD officer reported using force, including all canine bites for which information is available about the race of the person bitten. FPD uses force, including unreasonable force, against African Americans at a rate that is disproportionate to African Americans’ proportion of the Ferguson population and not lawfully explained by the nature or frequency of interactions between African-American individuals and FPD officers.
118. In their interactions with African-American individuals, FPD officers use more force against similarly situated African Americans, including more force that is unreasonable.
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119. African Americans are also disproportionately impacted by the practices of the City’s court and Prosecuting Attorney. African-American defendants are more likely to have their cases persist for longer durations, and are more likely to face a higher number of mandatory court appearances and other requirements.
120. African Americans are also more likely to have a warrant issued against them. Of all warrants issued in 2013, 92% were issued in cases involving an African-American defendant. This figure is disproportionate to the representation of African Americans in the court’s docket. African Americans are also disproportionately more likely to have warrants executed against them.
121. Analysis of the municipal court’s fines and fees data suggests racial disparities in the court’s fine assessment practices that consistently disfavor African Americans. And the court is significantly less likely to dismiss cases with African-American defendants.
2. The Disparate Impact of Defendant’s Law Enforcement Conduct is Motivated by Racial Bias
122. These disparities occur, at least in part, because Ferguson law enforcement practices are directly shaped and perpetuated by racial bias. Evidence of racial bias includes: the consistency and magnitude of the racial disparities found throughout police and court enforcement actions; direct communications by police supervisors and court officials that exhibit racial bias, particularly against African Americans; a number of other communications by police and court officials that reflect harmful racial stereotypes; the background and historic context surrounding FPD’s racially disparate enforcement practices; and the fact that City, police, and court officials failed to take any meaningful steps to evaluate or address the race-based impact of its law enforcement practices despite longstanding and widely reported racial disparities, and
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instead consistently reapplied police and court practices known to disparately impact African Americans.
123. The race-based disparities are not isolated or aberrational; rather, they exist in nearly every aspect of Ferguson police and court operations
124. Communications of Ferguson officials reveal direct evidence of racial bias among influential Ferguson decision makers.
125. Several written communications sent by FPD and court employees are unequivocally derogatory, dehumanizing, and demonstrative of impermissible bias. For example, a March 2010 email mocked African Americans through speech and familial stereotypes, using a story involving child support. One line from the email read: “I be so glad that dis be my last child support payment! Month after month, year after year, all dose payments!”
126. In another example, a May 2011 email stated: “An African-American woman in New Orleans was admitted into the hospital for a pregnancy termination. Two weeks later she received a check for $5,000. She phoned the hospital to ask who it was from. The hospital said, ‘Crimestoppers.’”
127. These and other email exchanges involved supervisors of FPD's patrol and court operations. FPD patrol supervisors are responsible for holding officers accountable to governing laws, including the Constitution, and helping to ensure that officers treat all people equally under the law, regardless of race or any other protected characteristic. Similarly, court supervisors have significant influence and discretion in managing the court’s operations and in processing individual cases, and court rules and procedures are interpreted largely at the discretion of the court clerks.
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128. Until the United States’ investigation revealed the content of these and other communications demonstrating racial bias, no officer or court employee was ever admonished or disciplined for such communications. In March 2015, the City terminated the employment of several FPD and court employees, including the Court Clerk. The Court Clerk subsequently has stated in a televised interview, “it went on all the time,” and that “they would have to shut the doors because they [the emails in question] went through the whole station. Trust me . . . I’m saying it went on all the time.”
129. This documentary evidence of explicit racial bias is consistent with reports from community members indicating that some FPD officers use racial epithets in dealing with members of the public.
130. Ferguson officials have explained the significant disparate impact of its law enforcement efforts as stemming from a lack of “personal responsibility” among AfricanAmerican members of the Ferguson community. Application of this racial stereotype does not explain the disparities, and in fact furthers the disproportionate impact of Ferguson’s police and court practices: it causes court and police decision makers to discredit African Americans’ explanations for not being able to pay tickets, and allows officials to disown the harms of Ferguson’s law enforcement practices.
131. The common practice among Ferguson officials of writing off tickets further evidences a double standard grounded in racial stereotyping. Even as Ferguson City officials maintain the harmful stereotype that black individuals lack personal responsibility—and continue to cite this lack of personal responsibility as the cause of the disparate impact of Ferguson’s practices—white City officials condone a striking lack of personal responsibility among themselves and their friends.
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132. In August 2013, for instance, a white FPD patrol supervisor wrote an email entitled “Oops” to Prosecuting Attorney Stephanie Karr regarding a ticket his relative received in another municipality for traveling 59 miles per hour in a 40 miles-per-hour zone, noting “[h]aving it dismissed would be a blessing.” The Prosecuting Attorney responded that the prosecutor of that other municipality promised to nolle pros the ticket. The supervisor responded with appreciation, noting that the dismissal “[c]ouldn’t have come at a better time.”
133. In November 2011, the Court Clerk received a request from a friend to “fix a parking ticket” received by the friend’s coworker’s wife. After the ticket was faxed to the clerk, she replied: “It’s gone baby!” Later, in March 2014, another friend of the Court Clerk’s relative emailed the Court Clerk with a scanned copy of a ticket asking if there was anything she could do to help. She responded: “Your ticket of $200 has magically disappeared!” Later, in June 2014, the same person emailed the Court Clerk regarding two tickets and asked: “Can you work your magic again? It would be deeply appreciated.” The Clerk later informed him one ticket had been dismissed and she was waiting to hear back about the second ticket.
134. City officials secure or receive ticket write-offs from staff in a number of neighboring municipalities.
135. City officials’ application of the stereotype that African Americans lack “personal responsibility” to explain why Ferguson’s practices harm African Americans, even as these same City officials exhibit a lack of personal—and professional—responsibility in handling their own and their friends’ code violations, reveals discriminatory bias on the part of decision makers central to the direction of law enforcement in Ferguson.
136. Further, the disparities in Defendant’s conduct exist within a historical context replete with racial tension. Until the 1960s, Ferguson was a “sundown town” where African
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Americans were banned from the City after dark. The City is very different today, but has nonetheless struggled with changing demographics and incorporating African Americans into civic life as equals. Some individuals, including individuals charged with discretionary enforcement decisions in either the police department or the court, have expressed concerns about the increasing number of African Americans that have moved to Ferguson in recent years. Similarly, some City officials explicitly distinguish Ferguson’s African-American residents from Ferguson’s “normal” residents or “regular” people.
137. Defendant has also consistently maintained the unlawful practices described herein, knowing that they impose a persistent disparate impact on African Americans. Until the United States’ investigation, Defendant continued to encourage FPD to stop and cite aggressively as part of its revenue generation efforts, even though that encouragement and increased officer discretion has yielded disproportionate African-American representation in FPD stops and citations. FPD officials had not restricted officer discretion to issue multiple citations at once, even though the application of that discretion has led officers to issue far more citations to African Americans at once than others, on average, and even though only black individuals (35 in total) ever received five or more citations at once over a three-year period. FPD has not provided further guidance to constrain officer discretion in conducting searches, even though FPD officers have, for years, searched African Americans at higher rates than others but found contraband during those searches less often than in searches of individuals of other races. FPD also has not significantly altered its use-of-force tactics, even though FPD records make clear that current force decisions disparately impact black suspects, and that officers appear to assess threat differently depending upon the race of the suspect. FPD, for example, has not reviewed or revised its canine program, even though available records show that canine officers
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have exclusively set their dogs against black individuals, often in cases where doing so was not justified by the danger presented.
138. Similarly, Defendant has not taken any meaningful steps to train or adequately supervise court staff with regard to racial bias. Indeed, until September 2014—after the United States’ investigation began—the City had not taken any meaningful steps to evaluate or reform any of the court or prosecutorial practices described herein, even though the implementation of those practices has plainly exerted a disparate impact on African Americans.
139. Defendant has actively endorsed and encouraged the perpetuation of the practices that have led to harmful racial disparities. This encouragement has been motivated at least in part by racial bias.
H. DEFENDANT’S PATTERN OR PRACTICE OF CONSTITUTIONAL VIOLATIONS IS A DIRECT RESULT OF BROAD AND LONGSTANDING SYSTEMIC DEFICIENCIES IN FERGUSON LAW ENFORCEMENT 140. Defendant’s pattern or practice of unconstitutional conduct is caused in part by:
(1) the focus of its law enforcement efforts on generating municipal revenue rather than on public safety needs; and (2) deficiencies in its systems for recruiting, training, providing policy direction to, supervising, and holding accountable law enforcement officers.
1. Defendant Has Focused Law Enforcement Efforts on Generating Municipal Revenue Rather than on Public Safety Needs and the Protection of Individual Rights
141. Defendant has long focused FPD and court activities on generating revenue. The City has budgeted for, and achieved, significant increases in revenue from municipal code enforcement for many years. In fiscal year 2010, 12 percent of the City’s general fund revenues came from fines and fees collected by the court. By fiscal year 2015, the City’s anticipated fine and fee collections accounted for over 23 percent of general fund revenues.
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142. Defendant has worked to meet these targets by directing FPD to aggressively enforce the municipal code to generate revenue. City and police leadership have pressured officers to write citations, independent of any public safety need. In an email from March 2010, for instance, Finance Director Jeffrey Blume—who continues to serve as the City’s Finance Director—wrote to then-Chief Jackson that “unless ticket writing ramps up significantly before the end of the year, it will be hard to significantly raise collections next year. What are your thoughts? Given that we are looking at a substantial sales tax shortfall, it’s not an insignificant issue.” Chief Jackson responded that the City would see an increase in fines once more officers were hired and that he could target the $1.5 million forecast. In another instance from March 2013, Mr. Blume wrote in an email: “Court fees are anticipated to rise about 7.5%. I did ask the Chief if he thought the PD could deliver 10% increase. He indicated they could try.”
143. Defendant goes so far as to direct FPD to develop enforcement strategies and initiatives, not to better protect the public, but to raise more revenue. In an April 2014 communication from Mr. Blume to then-Chief Jackson and then-City Manager Shaw, Mr. Blume recommended immediate implementation of an “I-270 traffic enforcement initiative” in order to “begin to fill the revenue pipeline.” Mr. Blume’s email attached a computation of the net revenues that would be generated by the initiative, which required paying five officers overtime for highway traffic enforcement for a four-hour shift. Mr. Blume stated that “there is nothing to keep us from running this initiative 1,2,3,4,5,6, or even 7 days a week. Admittedly at 7 days per week[] we would see diminishing returns.” Indeed, in a separate email to FPD supervisors, FPD’s Patrol Captain explained that “[t]he plan behind this [initiative] is to PRODUCE traffic tickets, not provide easy OT.” There is no indication that anyone considered whether community policing and public safety would be better served by devoting five overtime officers to
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neighborhood policing instead of a “revenue pipeline” of highway traffic enforcement. Rather, the only downsides to the program that City officials appear to have considered are that “this initiative requires 60 to 90 [days] of lead time to turn citations into cash,” and that Missouri law then capped the proportion of revenue that can come from municipal fines at 30%, which limited the extent to which the program could be used. See Mo. Rev. Stat. § 302.341.2. With regard to the statewide-cap issue, the Mr. Blume advised: “As the RLCs [Red Light Cameras] net revenues ramp up to whatever we believe its annualized rate will be, then we can figure out how to balance the two programs to get their total revenues as close as possible to the statutory limit of 30%.”
144. As directed, FPD supervisors have implemented steps to ensure that officers aggressively enforce the municipal code against community residents to meet the City’s revenue generation expectations. Citation writing has been the primary goal and measure of policing performance, and policing resources have been diverted to aggressive code enforcement at the expense of important public safety needs. FPD has also modified deployment schedules to place more officers on the street specifically to generate more revenue. Supervisors have instructed individual officers to increase production when their citation totals are deemed insufficient. Supervisors have also communicated that ticket-writing productivity is a consideration for promotions, and have threatened to alter officer assignments or impose discipline when officers fail to meet productivity goals. And court staff have provided FPD supervisors with a monthly list of the number of tickets issued by each officer and each squad. Supervisors have posted the list inside the police station, a tactic officers say is meant to push them to write more citations.
145. Defendant has also established revenue generation as a priority for the Ferguson Municipal Court. The influence of revenue on court operations is significant, and documented in
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part in a February 2011 Report coordinated by City Finance Director Jeffrey Blume for the City Council on “efforts to increase efficiencies and maximize collection.” In that Report, then-Judge Brockmeyer describes “what he has done to help in the areas of court efficiency and revenue,” including establishing fines “at or near the top of the list” compared with other municipalities, and creating new fines and fees—one of which, the “Failure to Appear” fine, has yielded $442,901 in revenue in 2013 alone. Those fines and fees, several of which were repealed during the pendency of our investigation, were lauded by Judge Brockmeyer, who noted that “none of these changes could have taken place without the cooperation of the Court Clerk, the Chief of Police, and the Prosecutor’s Office.”
146. Defendant has been aware for years of concerns that the City’s focus on revenue has undermined the fair administration of justice within the Municipal Court. It has disregarded those concerns to avoid disturbing the court’s ability to optimize revenue generation. In 2012, for instance, the City Manager urged the reappointment of Judge Brockmeyer over objections from a City Councilmember that Judge Brockmeyer failed to follow appropriate procedures, noting in part that “[i]t goes without saying the City cannot afford to lose any efficiency in our Courts, nor experience any decrease in our Fines and Forfeitures.”
147. Further, court clerks have been involved in setting targets for fine and fee revenues during development of the City’s budget—even as those same clerks make a number of critical case decisions, including deciding whether to require a court appearance for certain offenses; whether to grant continuances or other procedural requests; whether to accept partial payment of an owed fine; and whether to cancel a warrant without a bond payment.
148. Court clerks have also taken specific actions to ensure that the revenue targets they help develop are met. For example, in April 2011, the Court Clerk wrote to Judge
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Brockmeyer, copying her supervisor, the Chief of Police, that the fines the new Prosecuting Attorney recommended were not high enough. The Clerk concluded: “We need to keep up our revenue.”
149. Defendant has closely monitored whether City law enforcement efforts are successful at bringing in revenue. Consistently over the last several years, the Chief of Police has directly reported to City officials FPD’s successful efforts at raising revenue through policing, and City officials have continued to encourage those efforts and request regular updates. For example, in a June 2011 email from the then-Chief of Police to Finance Director Blume and the then-City Manager, the Chief reported that “May is the 6th straight month in which court revenue (gross) has exceeded the previous year.” The City Manager applauded the Chief’s efforts, and the Finance Director added praise, noting that the Chief is “substantially in control of the outcome.” The Finance Director further recommended in this email greater police and judicial enforcement to “have a profound effect on collections.” In one March 2012 email, the Captain of the Patrol Division reported directly to the City Manager regarding record court collections, noting “[t]he [court clerk] girls have been swamped all day with a line of people paying off fines today.” The City Manager reported the Captain’s email to the City Council and congratulated both police department and court staff on their “great work.”
150. In December 2014, Finance Director Jeffrey Blume stated publicly that Ferguson intends to make up a 2014 revenue shortfall in 2015 through municipal code enforcement, explaining that “[t]here’s about a million-dollar increase in public-safety fines to make up the difference.” Defendant continues to project that the court will generate significant revenues in the form of fines and fees, and rely on those projections in developing its budget. At least as of
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the Fall of 2015—months after the public release of United States’ findings report exposing these emails—Mr. Blume continued to push for implementation of the “revenue pipeline” initiative.
2. Defendant Has Failed to Implement Basic Policies and Practices that Would Decrease or Eliminate Unconstitutional Police and Court Conduct
151. In part because of its focus on generating revenue, Defendant has failed to implement policies and practices that would decrease or eliminate police misconduct, including discriminatory policing, unconstitutional stops, searches and arrests, and the use of unreasonable force.
152. Defendant has failed to implement a community engagement model that would increase public trust and reduce bias. Defendant further has failed to provide adequate policy guidance or train officers on appropriate law enforcement practices; failed to adequately supervise officers or review their actions to ensure adherence to constitutional law; failed to implement systems to reliably prevent, detect, investigate, and hold officers accountable for, misconduct. These and other systemic deficiencies have caused and perpetuated the unlawful conduct described above.
153. Defendant’s focus on revenue generation has required an approach to law enforcement that is incompatible with true community policing, in which communities and law enforcement work together to decide community priorities and discuss appropriate policing strategies to address those priorities. Ferguson’s support of community policing has historically been modest but in recent years dwindled to nearly nothing, as revenue-generation police activities increased. During this time period, Ferguson’s relationships with youth, apartment residents, and residents living in poverty have become particularly more strained.
154. One officer stated during the United States’ investigation that officers could spend more time engaging with community members and undertaking problem-solving projects if FPD
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officers were not so focused on activities that generate revenue. This officer stated, “everything’s about the courts . . . the court’s enforcement priorities are money.” Another officer stated 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.” One officer reported that there was a police substation in Canfield Green when FPD was more committed to community policing, while another stated that now there is “nobody in there that anybody knows.”
155. As a result of a lack of true community engagement and community policing, police and municipal conduct in Ferguson has undermined public trust rather than enhanced it, and has violated individuals’ legal rights, instead of protected them.
156. In one instance, for example, a woman called FPD to report a domestic disturbance. By the time the police arrived, the woman’s boyfriend had left. The police looked through the house and saw indications that the boyfriend lived there. When the woman told police that only she and her brother were listed on the home’s occupancy permit, the officer placed the woman under arrest for the permit violation and she was jailed. In another instance, after a woman called police to report a domestic disturbance and was given a summons for an occupancy permit violation, she said, according to the officer’s report, that she “hated the Ferguson Police Department and will never call again, even if she is being killed.” These examples underscore that Ferguson’s overly aggressive enforcement of low-level municipal violations significantly undermines public safety, rather than promoting it.
157. Defendant also has failed to provide the policy guidance necessary to ensure that officers and court staff have a clear set of directives for lawful conduct to which they can be held
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accountable. Defendants routinely ask officers to perform functions for which it has provided no written guidance or directive.
158. Defendant has failed to provide the training to FPD officers and other staff, and to municipal court employees, that is necessary to ensure that they know how to carry out their duties consistent with law. Defendant has failed to ensure that newly hired officers have sufficient training when they arrive; has failed to provide sufficient field- or in-service training to officers, and fails to provide additional or remedial training to respond to known or readily identifiable problems with officer misconduct or other training needs. Defendant has not developed a training plan or implemented training pursuant to that plan. Defendant provides insufficient, or no training at all, in the following areas: community engagement/community policing; bias-free policing; stop, search, and arrest; First Amendment; use of force; mental health crisis intervention; and use of body-worn and in-car cameras. Defendant provides generally insufficient training for non-patrol positions such as School Resource Officers and detectives.
159. Defendant fails to ensure that FPD supervisors have the skills, temperament, and training necessary to be effective; fails to deploy supervisors in a manner conducive to close and effective supervision; and fails to hold supervisors accountable for supervising officers, or for their own conduct.
160. Partly as a result of these deficiencies, FPD fails to provide the supervision to FPD officers that is necessary to ensure that they routinely respect the constitutional rights of the individuals with whom they interact, and are held accountable when they do not. FPD supervisors routinely fail to offer effective guidance to FPD officers, fail to adequately detect or
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investigate officer misconduct, and fail to counsel or hold officers accountable where they violate the law or FPD policy.
161. FPD supervisors have routinely failed to ensure that officers complete required reports. In 2010, a senior police official complained to supervisors that every week reports go unwritten, and hundreds of reports remain unapproved. “It is time for you to hold your officers accountable,” he urged them. In 2014, the official had the same complaint, remarking on 600 reports that had not been approved over a six-month period.
162. FPD failed to take sufficient measures to require or assist supervisors in holding officers accountable. In fact, one supervisor noted to the Captain of Patrol that coding errors in the then-new records management system is set up “to hide, do away with, or just forget reports,” creating a heavy administrative burden for supervisors who discover incomplete reports months after they are created.
163. Defendant fails also to institute the systems necessary to permit adequate supervision of officer conduct, including appropriate systems for documenting FPD stops, searches, arrests, and uses of force.
164. While FPD collects vehicle-stop data because it is required to do so by state law, its data collection methods are inadequate to allow for close and effective supervision of officers, particularly as needed to prevent bias-based policing. For example, FPD collects no reliable or consistent data regarding pedestrian stops, even though it has the technology to do so and its own policy recommends doing so.
165. Officers’ uses of force frequently go unreported, and are reviewed superficially if at all. There is evidence that this underreporting is widespread. For example, information in FPD’s internal affairs files indicates instances of force that are not included in FPD’s force files.
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Second, several offense reports describe officers using force with no corresponding use-of-force report. Third, of the nine cases between 2010 and 2014 in which officers claimed injury sustained from using force on the job for purposes of workers compensation, three had no corresponding use-of-force paperwork.
166. FPD has not adopted or effectively used an early warning system to address officers with repeated complaints or other histories indicating a need for intervention or oversight to prevent future violations of constitutional rights.
167. As a result of these deficient practices, FPD stops, searches, arrests, and uses of force that violate the law or FPD policy are rarely detected and often go ignored when they are discovered. Additionally, changes to equipment, policy, or training that may be necessary to ensure lawful conduct and officer safety are not discovered or implemented.
168. The patterns of misconduct described above are facilitated further by Defendant’s failure to adequately accept, investigate, and respond to allegations of officer misconduct. Because of Defendant’s failed accountability system, it fails to detect, prevent, or respond to officer misconduct, including serious misconduct such as excessive force, violations of due process rights, and race discrimination.
169. Defendant makes it unduly difficult for an individual to make a misconduct complaint against an officer in Ferguson. Ferguson both discourages individuals from making complaints and discourages City and police staff from accepting them. For example, in a March 2014 email, 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.” While official FPD policy states
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clearly that officers must “never attempt to dissuade any citizen from lodging a complaint,” FPD General Order 301.3, FPD leadership has indicated that officers need to justify their actions when they do accept a civilian complaint. For example, in one case a sergeant explained: “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.”
170. The United States’ investigation documented several instances in which people complained to FPD that they were prevented from making a complaint, but FPD did not investigate those allegations. 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. There is no indication that FPD investigated this allegation.
171. When individuals do report misconduct, there is a significant likelihood it will not be treated as a complaint and investigated. For example, 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.” According to the man, 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
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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). Still, FPD failed to conduct an internal affairs investigation of this incident or complete a use-of-force report.
172. 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 Chief of Police so that it could be “filed in the non-complaint file.”
173. 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.
174. FPD does not treat allegations of misconduct as complaints even where it believes that the officer did in fact commit the misconduct. For example, a supervisor wrote an email directly to an officer about a complaint the Chief of Police 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.”
175. On the rare occasion when an allegation of officer misconduct is investigated as such, the investigation is inadequate. Officer misconduct investigations do not fairly weigh
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available evidence. FPD frequently credits the officer with telling the truth and finds that the complainant is not truthful, even where objective evidence indicates that the reverse is the case.
176. 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.
177. FPD does not respond meaningfully even to allegations of untruthfulness by officers. For example, in one case 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. FPD appears not to have taken the officer’s untruthfulness into sufficient account in subsequent complaints, including in at least one case in which the complainant alleged conduct very similar to the conduct alleged in the case in which the officer was found to have lied. Nor does Defendant appropriately share information of officer untruthfulness with defendants against whom the officer is testifying in court.
178. 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. FPD’s tolerance for officer violations of FPD policy and the Constitution contrasts with the City’s intolerance for civilian infractions of the Ferguson Municipal Code.
179. FPD’s systems for recruiting, performance evaluation and promotion also contribute to the patterns and practices of constitutional violations described above. Because of deficiencies in FPD’s recruiting, performance evaluation and promotional systems, FPD too often hires individuals with histories of officer misconduct or who are otherwise ill-suited for constitutional policing; fails to hire qualified individuals who would promote constitutional
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policing; fails to reward lawful and ethical conduct; and instead rewards officers who commit or tolerate misconduct.
180. FPD fails to collect the data that is necessary for ensuring compliance with law, or to analyze such data to detect, prevent, or correct patterns of constitutional violations. Together, these systemic deficiencies allow for, and in fact perpetuate, the pattern or practice of unlawful conduct described herein.
FIRST CLAIM FOR RELIEF: DEFENDANT’S LAW ENFORCEMENT ACTIVITIES VIOLATE
SECTION 14141 181. The United States realleges and incorporates by reference the allegations set forth above. 182. The United States is authorized under 42 U.S.C. § 14141(b) to seek declaratory and equitable relief to eliminate a pattern or practice of law enforcement officer conduct that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. 183. Defendant, its agents, and persons acting on its behalf have unreasonably stopped, searched, detained, cited, and arrested numerous persons in the City of Ferguson. These unreasonable actions include searches and seizures made without probable cause or reasonable suspicion. 184. Defendant, its agents, and persons acting on its behalf use force that is objectively unreasonable against individuals. 185. Defendant, its agents, and persons acting on its behalf have infringed upon the free expression of numerous persons in the City of Ferguson and retaliated against persons for
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the exercise of free expression. Defendant has infringed on, and chilled, protected conduct in a manner that is not constitutionally justifiable.
186. Defendant, its agents, and persons acting on its behalf have intentionally prosecuted and resolved municipal violations in the City of Ferguson in a manner that violates due process and equal protection requirements.
187. Defendant, its agents, and persons acting on its behalf have intentionally engaged in law enforcement conduct against African-American persons in the City of Ferguson that is discriminatory on the basis of their race.
188. By the actions set forth above, Defendant has engaged and continues to engage in a pattern or practice of conduct by law enforcement officers that deprives persons of their rights under the First, Fourth, and Fourteenth Amendments to the United States Constitution, in violation of 42 U.S.C. § 14141(a).
SECOND CLAIM FOR RELIEF: DEFENDANT’S LAW ENFORCEMENT ACTIVITIES VIOLATE
TITLE VI 189. The United States re-alleges and incorporates by reference the allegations set forth above. 190. Defendant received and continues to receive federal financial assistance for its programs and activities. 191. Defendant has engaged in law enforcement practices that have an adverse disparate impact on African Americans and that are unnecessary to non-discriminatory objectives.
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192. Defendant has engaged in law enforcement practices with the intent to discriminate against African Americans on the basis of their race, color, or national origin.
193. The United States has determined that all administrative requirements have been exhausted and that securing compliance from the Defendants cannot be achieved by voluntary means.
194. Defendant’s discriminatory law enforcement practices, and intentional discrimination, violate Title VI.
PRAYER FOR RELIEF 195. WHEREFORE, the United States prays that the Court: 196. Declare that the Defendant has engaged in a pattern or practice of conduct that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, in violation of Section 14141 and Title VI; 197. Order the Defendant, its officers, agents, and employees to refrain from engaging in any of the predicate acts forming the basis of the pattern or practice of conduct described herein; 198. Order the Defendant, its officers, agents, and employees to adopt and implement policies, procedures, and mechanisms that identify, correct, and prevent the unlawful conduct described herein that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States; and 199. Order such other appropriate relief as the interests of justice may require.
Respectfully submitted this 10th day of February, 2016.
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___/s/ Vanita Gupta___________________ VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-4609 NY Bar Reg. Number 4058418
_/s/ Steven H. Rosenbaum_____________ STEVEN H. ROSENBAUM Chief, Special Litigation Section 601 D Street NW Washington, DC 20004 NY Bar Reg. Number 1901958 (202) 616-3244
__/s/ Christy E. Lopez_________________ CHRISTY E. LOPEZ Deputy Chief, Special Litigation Section 601 D Street NW Washington, DC 20004 DC Bar Number 473612 (202) 514-2000
_/s/ Jude J. Volek_____________________ JUDE J. VOLEK Special Counsel, Special Litigation Section 601 D Street NW Washington, DC 20004 (202) 353-1077 Permanent Bar Number 10041483N NY Bar Reg. Number 10041483
CHARLES HART Trial Attorney, Special Litigation Section
CHIRAAG BAINS Senior Counsel, Civil Rights Division
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 Case: 4:16-cv-00180-CDP Doc. #: 12 Filed: 03/17/16 Page: 1 of 3 PageID #: 80

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE CITY OF FERGUSON,

)

)

Defendant.

)

)

____________________________________)

NO. 4:16-cv-000180-CDP JUDGE CATHERINE D. PERRY

JOINT MOTION FOR ENTRY OF CONSENT DECREE
Plaintiff, the United States of America, and Defendant, the City of Ferguson (collectively, “the Parties”), have entered into the Consent Decree (“Decree”) attached as Exhibit A, and jointly move for approval and entry of the Decree as an Order of this Court. As set forth in Paragraph 458 of the Decree, the Parties respectfully request that the Court retain jurisdiction over the Decree for the purpose of enforcing its terms until Defendant has achieved full and effective compliance with the Decree and maintained such compliance for no less than two consecutive years.
A memorandum in support of this Motion is attached.

Case: 4:16-cv-00180-CDP Doc. #: 12 Filed: 03/17/16 Page: 2 of 3 PageID #: 81
Respectfully submitted this 17th day of March, 2016.
For the UNITED STATES OF AMERICA:
VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division STEVEN H. ROSENBAUM Chief, Special Litigation Section
__/s/ Christy E. Lopez___________ CHRISTY E. LOPEZ Deputy Chief, Special Litigation Section 601 D Street NW Washington, DC 20004 (202) 514-2000 DC Bar Number 473612
_/s/ Jude J. Volek_______________ JUDE J. VOLEK Special Counsel, Special Litigation Section 601 D Street NW Washington, DC 20004 (202) 353-1077 Permanent Bar Number 10041483N NY Bar Reg. Number 10041483 CHARLES HART AMY SENIER Trial Attorneys, Special Litigation Section CHIRAAG BAINS Senior Counsel, Civil Rights Division
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For the CITY OF FERGUSON: _/s/ Dan K. Webb_____________________ DAN K. WEBB (Registration # 2954087IL) JARED L. HASTEN (Registration # 6296695IL) Winston & Strawn LLP 35 West Wacker Drive Chicago, Illinois 60601 (312) 558-5600 Pro Hac Vice Admission Pending KEVIN M. O’KEEFE Curtis, Heinz, Garrett & O’Keefe 130 South Bemiston Suite 200 Clayton, Missouri 63105 Counsel for The City of Ferguson
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 Case: 4:16-cv-00180-CDP Doc. #: 12-1 Filed: 03/17/16 Page: 1 of 14 PageID #: 83

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE CITY OF FERGUSON,

)

)

Defendant.

)

)

___________________________________________)

NO. 4:16-cv-000180-CDP JUDGE CATHERINE D. PERRY

MEMORANDUM IN SUPPORT OF JOINT MOTION FOR ENTRY OF CONSENT DECREE

Plaintiff, the United States of America, and Defendant, the City of Ferguson (“City” or “Ferguson”) (collectively, “the Parties”), submit this Memorandum in support of their joint motion for approval and entry of the Consent Decree (“Decree”), which is attached as Exhibit A, as an Order of this Court. The Parties seek entry of the Decree to resolve the Complaint filed by the United States on February 10, 2016, pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”), and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (“Title VI”). The Parties further seek entry of this Decree to ensure that the agreed-upon comprehensive measures to reform Ferguson’s police and municipal court practices are implemented fully and faithfully. As set forth in Paragraph 458 of the Decree, the Parties respectfully request that the Court retain jurisdiction over the Decree for the purpose of enforcing its terms until Defendant has achieved full and effective compliance with the Decree and maintained such compliance for no less than two consecutive years.

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In its Complaint, the United States alleges that the City of Ferguson, through its law enforcement officials, violates the First, Fourth, and Fourteenth Amendments to the United States Constitution and other federal law. Complaint at 1 [ECF No. 1]. The City denies the existence of any current or past pattern or practice of unconstitutional conduct as alleged in the United States’ complaint. The United States and the City agree that it is in the Parties’ best interests, and the United States believes that it is in the public interest, to fully and finally resolve this matter on mutually agreeable terms without resort to protracted litigation. The Parties hereby agree and stipulate to the Court’s entry of all aspects of this Consent Decree in resolution of the United States’ Complaint against the City.
I. BACKGROUND In September 2014, the United States, through the Department of Justice’s Civil Rights Division, opened a civil pattern-or-practice investigation of the Ferguson Police Department (“FPD”). Following a thorough investigation, the United States issued a report detailing its investigative findings on March 4, 2015. The United States determined that the City’s police department and municipal court violate Section 14141 by engaging in a pattern or practice of conduct by law enforcement officers that deprives persons of rights protected by the First, Fourth, and Fourteenth Amendments to the United States Constitution, and by federal statutory law. As detailed in Paragraph three of the Decree, the City does not agree with every finding or opinion referenced in the report. In April 2015, the Parties initiated discussions to address the United States’ findings and to ensure that the causes of these alleged violations were remedied and did not recur. Discussions involved City and FPD officials, police practices consultants, and multiple attorneys for the Parties. Over the course of these discussions, the Parties collectively spent hundreds of
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hours in a series of in-person and telephone conferences. Discussions culminated in the United States sending the City a final, negotiated Consent Decree on January 26, 2016, which the City released to the public on January 27, 2016. On February 2, 6, and 9, 2016, the Ferguson City Council held public comment sessions to hear feedback from members of the public about the negotiated Decree. At the conclusion of the session on February 9, 2016, the Ferguson City Council did not approve the Decree as negotiated by the Parties. On February 10, 2016, the United States filed a Complaint alleging violations of Section 14141 and Title VI and seeking equitable and declaratory relief against Defendant.
On March 15, 2016, the City Council voted again on whether to enter the Consent Decree as it was negotiated by the Parties, this time voting to enter the Decree. The United States and the City of Ferguson agree that the Decree is a fair and equitable resolution of this matter that will benefit the people of Ferguson, both by avoiding protracted litigation and helping to ensure that Ferguson’s police department and municipal court respect the constitutional and federal statutory rights of all those who live, work, or travel through Ferguson.
II. THE CONSENT DECREE IS FAIR, REASONABLE AND ADEQUATE AND SHOULD BE ENTERED AS AN ORDER OF THE COURT
Entry of the Consent Decree is appropriate because the Consent Decree is fair, adequate and reasonable. The Consent Decree is tailored to address the United States’ allegations; is consistent with the public interest, including the purposes of Section 14141 and Title VI; is the result of arm’s-length negotiations; and avoids the unnecessary costs and delay of litigation. Entry and implementation of the Decree is the most effective and efficient means of resolving the United States’ claims and ensuring constitutional and effective law enforcement in Ferguson.
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A. Legal Standard “A settlement agreement is ‘presumptively valid.’” In re Uponor, Inc. F1807 Plumbing
Fittings Prods. Liab. Litig., 716 F.3d 1057, 1063 (8th Cir. 2013) (quoting Little Rock Sch. Dist. v. Pulaski Cnty. Special Sch. Dist. No. 1, 921 F.2d 1371, 1391 (8th Cir. 1990)). The policy encouraging settlements has “particular force” where, as here, a government actor “committed to the protection of the public interest” has played a significant role in constructing the proposed settlement. United States v. Vertac Chem. Corp., 756 F. Supp. 1215, 1218 (E.D. Ark. 1991) (quoting United States v. Cannons Eng’g Corp., 899 F.2d 79, 84 (1st Cir. 1990)).
In deciding whether to accept a proposed consent decree, “‘the trial court is to review the settlement for fairness, reasonableness and adequacy.’” EEOC v. Product Fabricators, Inc., 666 F.3d 1170, 1172 (8th Cir. 2012) (quoting United States v. Metropolitan St. Louis Sewer Dist., 952 F.2d 1040, 1044 (8th Cir. 1992)). In determining whether a proposed consent decree is fair, adequate and reasonable, courts balance several factors, including but not limited to the existence of fraud or collusion underlying the settlement, and the complexity, expense, and likely duration of the litigation. See EEOC v. McDonnell Douglas Corp., 894 F. Supp. 1329, 1333 (E.D. Mo. 1995). The Eighth Circuit has noted further that consent decrees sought by federal actors must be formulated to protect federal interests, and should “spring from—and serve to resolve—a dispute within the court’s subject-matter jurisdiction; come within the general scope of the case from the pleadings; and, further the objectives of the law on which the complaint was based.” Product Fabricators, 666 F.3d at 1172.
As discussed below, the Consent Decree here meets each of these criteria, and accordingly should be entered by this Court.
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B. The Consent Decree is Tailored to Address the Pattern or Practice of Unlawful Conduct Alleged by the United States As noted above, in reviewing whether a consent decree sought by a federal actor is fair,
adequate, and reasonable, a court must determine whether the decree is formulated to protect federal interests; stems from and resolves a dispute within the court’s subject-matter jurisdiction; comes within the general scope of the case from the pleadings; and furthers the objectives of the law on which the complaint was based. Id.
The Consent Decree here meets each of these criteria. The Consent Decree is tailored to effectively address the United States’ allegations that the City of Ferguson engages in a pattern or practice of conduct that deprives persons of rights protected by the Constitution and laws of the United States. Specifically, the United States’ Complaint alleges that the City, through its police department, municipal court, and prosecuting attorney: (1) engages in a pattern or practice of unconstitutional stops, searches, and arrests lacking adequate legal justification in violation of the Fourth Amendment; (2) engages in a pattern or practice of use of unreasonable force in violation of the Fourth Amendment; (3) engages in a pattern or practice of interfering with the right to free expression in violation of the First Amendment; (4) engages in a pattern or practice of prosecuting and resolving municipal charges in a manner that violates due process and equal protection in violation of the Fourteenth Amendment; and (5) engages in a pattern or practice of law enforcement conduct that disproportionately impacts African Americans and is based in part on intentional discrimination in violation of the Fourteenth Amendment and Title VI. See generally Complaint. Of central importance to understanding the breadth of the Consent Decree, the Complaint also alleges that this conduct stems from the City’s failure to implement systemic practices that would decrease or eliminate that unlawful conduct, including appropriate
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training and supervision to guide officer conduct; community policing principles; and systems to reliably prevent, detect, and hold officers accountable for misconduct. Id. at ¶¶ 140-180.
The provisions of the proposed Decree, agreed upon by the Parties after significant negotiations, are meant to resolve the present dispute and eliminate the pattern or practice of misconduct that the United States has alleged. The proposed Decree contains specific requirements regarding the conduct at issue, including provisions regarding: stops, searches, and arrests; officer use of force; interference with activity protected by the First Amendment; ensuring due process and equal protection in the prosecution and resolution of municipal charges; and ensuring bias-free law enforcement conduct. Through the proposed Decree, the City also has committed to implementing the measures necessary to correct the systemic deficiencies that have caused the alleged violations of the Constitution and federal law. The Decree requires specific and meaningful measures ensuring: the adoption and implementation of a community policing model; reform of the Ferguson Municipal Code; appropriate policies and training; the appropriate response to individuals in crisis; reforms to Ferguson’s school resource officer program; the proper implementation of body-worn and in-car cameras; close and effective supervision; assistance and support for FPD officers; the recruitment of highly qualified officers, as well as systems for appropriately evaluating and promoting officers; that complaints of officer misconduct are fully and fairly investigated and that officers who commit misconduct are held accountable; civilian oversight to promote transparency and accountability; and the collection and analysis of accurate and reliable data necessary for ensuring compliance with the law.
The Decree also provides for independent oversight in the form of a monitor, selected by the Parties and approved by the Court, to assess the City’s efforts at implementing the Decree and provide technical assistance to the City to help ensure that those efforts are carried out
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efficiently and successfully. The monitor will save the time and resources of both the Parties and the Court; provide the public with an objective and independent assessment of the status of the Consent Decree’s implementation; and determine whether this implementation is achieving the underlying objective of constitutional policing and municipal court practices in Ferguson.
The fairness, reasonableness, and adequacy of the Decree are further underscored by the fact that its provisions are informed by an extensive investigation conducted by the United States with the full cooperation of the City of Ferguson, including FPD officials. This intensive sixmonth investigation, which is summarized in the United States’ March 4, 2015 Findings Report, was conducted by a team of lawyers and other staff from the Civil Rights Division of the United States Department of Justice, who worked closely with retained law enforcement professionals with relevant expertise. During this investigation, the United States gathered information through interviews and meetings with Ferguson officials, including FPD officers, as well as members of the public, community groups, and other community stakeholders. The investigation included on- and off-site review and analysis of tens of thousands of pages of documents, including policies and procedures; training materials; FPD’s stop reports, use-offorce reports, and other incident reports; FPD’s investigative files, including files regarding internal investigations of officer misconduct; emails sent by City officials; and other information obtained from databases maintained by FPD, including the municipal court. The investigation also included on-site tours in which the United States’ representatives and subject matter experts in the field accompanied FPD officers during their shifts and observed a wide range of law enforcement activities. Thus, although this settlement comes early in the litigation process, it is the culmination of an extensive investigatory process that created a factual record supporting the fairness, reasonableness and adequacy of the Decree and informed its specific provisions. See
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Citizens for a Better Env’t v. Gorsuch, 718 F.2d 1117, 1126 (D.C. Cir. 1983) (in accepting a consent decree a court’s function is not to “inquire into the precise legal rights of the parties nor reach and resolve the merits of the claims or controversy,” but “only [to] determine that the settlement is fair, adequate, reasonable and appropriate under the particular facts and that there has been valid consent by the concerned parties.”) (internal quotation marks and citations omitted). C. The Consent Decree Furthers the Public Interest in Enforcing the Constitution and
Anti-Discrimination Statutory Law The policy encouraging settlements has particular force where a government actor committed to the protection of the public interest has played a significant role in constructing the proposed settlement. Vertac Chem. Corp., 756 F. Supp. at 1218. Consistent with Section 14141 and Title VI, the United States has placed protection of the public’s interest in constitutional and non-discriminatory policing at the center of its efforts to reach a negotiated settlement in this case. Section 14141 prohibits law enforcement officers from engaging in a pattern or practice of conduct “that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” 42 U.S.C. § 14141(a). Where the United States has reasonable cause to believe that a pattern or practice of unlawful conduct is occurring, Congress has authorized the United States to initiate a civil action to obtain appropriate equitable and declaratory relief sufficient to “eliminate the pattern or practice.” 42 U.S.C. § 14141(b); see also H.R. REP. NO. 102-242, pt. 1, at 137 (1991). Title VI, together with relevant implementing regulations, prohibits discrimination on the basis of race, color, or national origin by agencies receiving federal funds or federal financial assistance. 42 U.S.C. § 2000d.
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As set forth in detail above, the Consent Decree’s substantive provisions are designed to address the unlawful conduct that the United States has alleged, as well as its underlying causes. The nexus between these reforms and the alleged pattern or practice of unlawful conduct provides strong evidence that the Decree furthers the purposes of Section 14141 and Title VI. D. The Consent Decree is the Result of Thorough, Informed, Arm’s-Length
Negotiations The process that led to the Parties’ agreement upon the Consent Decree demonstrates that it is not the product of fraud, collusion, or overreaching, and further establishes the fairness and reasonableness of the Decree. McDonnell Douglas Corp., 894 F. Supp. at 1333 (in determining whether a proposed consent decree is fair, adequate and reasonable, courts should consider whether the decree is the result of fraud or collusion). The Parties entered the Decree following extensive negotiations to reach agreement on measures capable of ensuring lasting and meaningful reform. Negotiations over the Consent Decree began shortly after the United States issued its Findings Report on March 4, 2015, and included over seven months of intensive meetings to establish the Decree’s provisions. The Parties were represented by counsel throughout the negotiations that resulted in the proposed Decree. In addition, the Parties are intimately familiar with the City’s policing and court practices. Moreover, during the negotiation process, both the United States and the City consulted with subject matter experts to ensure that each remedial measure in the Consent Decree is appropriately tailored and may be reasonably implemented. This adversarial posture during negotiations, combined with the respective duties of these government entities towards those they represent, as well as the degree to which the discussions were informed by the
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expertise of the Parties and their consultants, provides further assurance that the Consent Decree is fair, reasonable, and adequate. E. Voluntary Compliance is a Preferred Means to Remedy Allegations of Unlawful
Patterns or Practices of Law Enforcement Conduct In reviewing whether the Consent Decree is fair, adequate and reasonable, the Court should consider the benefit of achieving voluntary compliance at the outset of litigation, as opposed to a declaratory or injunctive order imposed at the end of protracted litigation. Settlement at the outset of litigation conserves the resources of courts and litigants. See Fed. R. Civ. P. 16(b) advisory committee’s note to 1983 amendment (“Since it obviously eases crowded court dockets and results in savings to the litigants and the judicial system, settlement should be facilitated at as early a stage of the litigation as possible.”); McDonnell Douglas Corp., 894 F. Supp. at 1333 (in determining whether a proposed consent decree is fair, adequate and reasonable, courts should consider the complexity, expense, and likely duration of litigation). Further, settlement is particularly beneficial where, as here, the defendant is a public actor and the harm sought to be remedied is governmental discrimination. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 290 (1986) (O’Connor, J., concurring) (noting that “the value of voluntary compliance is doubly important when it is a public employer that acts, both because of the example its voluntary assumption of responsibility sets and because the remediation of governmental discrimination is of unique importance”); see also Williams v. Vukovich, 720 F.2d 909, 923 (6th Cir. 1983) (“Voluntary compliance will frequently contribute to the ultimate achievement of the public objectives. Consent decrees minimize the delay, expense, psychological bitterness, and adverse publicity which frequently accompanies adjudicated
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guilt.”) (citing Metro. Housing Dev. Corp. v. Village of Arlington Heights, 616 F.2d 1006, 1014 (7th Cir. 1980)).
The Decree provides an opportunity for the Parties to continue, and ensure the success of, their mutual efforts in furtherance of lawful and constitutional policing and municipal court practices in Ferguson. The Parties agree that the measures agreed upon within the Decree will enhance the City’s efforts and ability to ensure compliance with the law, promote transparency and accountability, and increase public trust in the police force and the municipal court. Settling this dispute without protracted litigation allows the Parties to devote their resources to these shared goals, and enables the Parties to implement reforms to achieve these goals without unnecessary delay. III. THE PARTIES REQUEST THAT THE COURT HOLD A PUBLIC HEARING TO
SOLICIT ADDITIONAL COMMUNITY FEEDBACK REGARDING THE DECREE
In drafting this proposed Consent Decree, the Parties solicited and received input from members of the broader Ferguson community—including community advocates, FPD officers, those who have had experiences with law enforcement officials in Ferguson, and other stakeholders. The United States conducted meetings with stakeholders for the purpose of obtaining their input during the development of the Decree and throughout the negotiation process. The City of Ferguson similarly solicited feedback regarding police and court reform throughout the negotiation process, and conducted three separate, well-attended public meetings to solicit feedback about the negotiated Decree before the City Council approved it. The significant input received from many individuals representing a diverse range of views has guided the Parties during negotiations and helped the Parties reach agreement on a Decree that is fair, reasonable, and adequate.
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Nonetheless, given the important public interests involved in this matter, the Parties believe that allowing community stakeholders to provide their views regarding the Decree may be of assistance to the Court. Accordingly, the Parties request that the Court hold a public hearing for the Parties to the Decree and interested third parties to be heard in the course of the Court considering whether to enter the Decree. The Parties make this request recognizing that such a hearing is not required here, as it would be if this were a settlement resolving a class action. Compare Fed. R. Civ. P. 23(e)(2) (“If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.”), with Gen. Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 323 (1980) (holding Rule 23 not applicable to enforcement actions brought by the EEOC in its own name and pursuant to its authority to prevent unlawful employment practices).
Should the Court agree to such a public hearing, the Parties request the opportunity to provide their views to the Court on the format of such a hearing at the Court’s earliest convenience. The Parties will meet and confer in an effort to agree upon and jointly submit to the Court a proposed format for such a hearing.
IV. CONCLUSION For the foregoing reasons, the Parties respectfully move this Court to enter the Consent Decree in its entirety as an Order of the Court. Respectfully submitted this 17th day of March, 2016.
For the UNITED STATES OF AMERICA: VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division
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STEVEN H. ROSENBAUM Chief, Special Litigation Section
__/s/ Christy E. Lopez___________ CHRISTY E. LOPEZ Deputy Chief, Special Litigation Section 601 D Street NW Washington, DC 20004 (202) 514-2000 DC Bar Number 473612
_/s/ Jude J. Volek_______________ JUDE J. VOLEK Special Counsel, Special Litigation Section 601 D Street NW Washington, DC 20004 (202) 353-1077 Permanent Bar Number 10041483N NY Bar Reg. Number 10041483
CHARLES HART AMY SENIER Trial Attorneys, Special Litigation Section
CHIRAAG BAINS Senior Counsel, Civil Rights Division
For the CITY OF FERGUSON:
_/s/ Dan K. Webb_______________________ DAN K. WEBB (Registration # 2954087IL) JARED L. HASTEN (Registration # 6296695IL) Winston & Strawn LLP 35 West Wacker Drive Chicago, Illinois 60601 (312) 558-5600
Pro Hac Vice Admission Pending
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Case: 4:16-cv-00180-CDP Doc. #: 12-1 Filed: 03/17/16 Page: 14 of 14 PageID #: 96 KEVIN M. O’KEEFE Curtis, Heinz, Garrett & O’Keefe 130 South Bemiston Suite 200 Clayton, Missouri 63105 Counsel for The City of Ferguson
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 Case: 4:16-cv-00180-CDP Doc. #: 41 Filed: 04/19/16 Page: 1 of 133 PageID #: 449
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE CITY OF FERGUSON,

)

)

Defendant.

)

)

____________________________________)

NO. 4:16-cv-000180-CDP JUDGE CATHERINE D. PERRY

CONSENT DECREE

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TABLE OF CONTENTS

I. II. III.
IV. V. VI. VII.
VIII.
IX.
X.

INTRODUCTION .............................................................................................. 1
BACKGROUND AND GENERAL PROVISIONS ........................................ 1
COMMUNITY POLICING AND ENGAGEMENT ...................................... 4
A. Community Engagement ............................................................................... 4 B. Neighborhood Policing Steering Committee ................................................ 6 C. Ferguson Youth Advisory Board and Apartment Neighborhood Group ...... 7 D. Community-Oriented and Problem-Solving Policing ................................... 7 E. Community Mediation Program.................................................................... 8 F. Ongoing Assessment and Improvement........................................................ 9
REFORM OF THE FERGUSON MUNICIPAL CODE ................................ 9
POLICIES AND TRAINING .......................................................................... 11
A. Policies Generally ....................................................................................... 11 B. Training Generally ...................................................................................... 12
BIAS-FREE POLICE AND COURT PRACTICES ..................................... 16
A. Requirements of Bias-Free Policing ........................................................... 17 B. Ongoing Assessment and Improvement...................................................... 18
VOLUNTARY CONTACTS, STOPS, SEARCHES, CITATIONS, AND ARRESTS.......................................................................................................... 19
A. Voluntary Contacts: Social Contacts & Non-Custodial Interviews ........... 20 B. Investigatory Stops and Detentions ............................................................. 20 C. Searches....................................................................................................... 21 D. Citations and Arrests ................................................................................... 22 E. Stop Orders, or “Wanteds” .......................................................................... 23 F. Supervision .................................................................................................. 24 G. Ongoing Assessment and Improvement...................................................... 26
FIRST AMENDMENT PROTECTED ACTIVITY ..................................... 26
A. Right to Observe and Record ...................................................................... 27 B. Public Protests and Demonstrations ............................................................ 28 C. Retaliation for First Amendment Activity Prohibited................................. 29 D. Supervision of First Amendment Related Arrests and Seizures ................. 29 E. Ongoing Assessment and Improvement...................................................... 30
FORCE .............................................................................................................. 30
A. General Use-of-Force Requirements........................................................... 31 B. Weapon-Specific Requirements .................................................................. 34 C. Use of Force in Ferguson Jail...................................................................... 40 D. Use-of-Force Reporting and Investigation .................................................. 40 E. Ongoing Assessment and Improvement...................................................... 45
CRISIS INTERVENTION .............................................................................. 46
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XI. XII. XIII. XIV. XV. XVI. XVII.

A. Crisis Intervention Coordinator................................................................... 46 B. Specialized Crisis Intervention Officers ..................................................... 47 C. Crisis Intervention Requirements ................................................................ 47 D. Ongoing Assessment and Improvement...................................................... 48
SCHOOL RESOURCE OFFICER PROGRAM........................................... 48
A. Revision of SRO Program and Training and Qualifications of SROs ........ 49 B. SRO Non-Involvement in School Discipline .............................................. 50 C. Minimizing School Arrests and Force ........................................................ 50 D. SRO Supervision and Evaluation ................................................................ 51 E. Ongoing Assessment and Improvement...................................................... 52
BODY-WORN AND IN-CAR CAMERAS .................................................... 52
A. Body-Worn and In-Car Camera Requirements ........................................... 53 B. Supervisory Responsibilities Related to Body-Worn and In-Car
Cameras ....................................................................................................... 55 C. Storage and Public Availability of Recordings ........................................... 56 D. Ongoing Assessment and Improvement...................................................... 57
SUPERVISION ................................................................................................. 57
A. Supervisory Character and Duties ............................................................... 57 B. Supervisor Staffing and Officer Assignment to Supervisors ...................... 58 C. Early Intervention System ........................................................................... 59 D. Ongoing Assessment and Improvement...................................................... 62
OFFICER ASSISTANCE AND SUPPORT................................................... 62
A. Support Services for Officers and Their Families....................................... 62 B. Officer Support During Public Demonstrations and Periods of Civil
Unrest .......................................................................................................... 63 C. Ongoing Assessment and Improvement...................................................... 64
RECRUITMENT.............................................................................................. 64
A. Recruitment Plan ......................................................................................... 64 B. Ferguson Police Department Academy Assistance Program ...................... 66 C. Background Investigation and Screening System ....................................... 66 D. Ongoing Assessment and Improvement...................................................... 67
PERFORMANCE EVALUATIONS AND PROMOTIONS........................ 68
A. Performance Evaluations............................................................................. 68 B. Promotions .................................................................................................. 69 C. Ongoing Assessment and Improvement...................................................... 70
SUPPLEMENTAL RECRUIT AND IN-SERVICE TRAINING ................ 71
A. Information Regarding this Agreement....................................................... 71 B. Community Policing, Critical Thinking, and Problem-Solving Policing
Training ....................................................................................................... 71 C. Training to Promote Bias-Free Policing...................................................... 72

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D. Stop, Search, and Arrest Training ............................................................... 72 E. First Amendment Training .......................................................................... 73 F. Use-of-Force Training................................................................................. 73 G. Crisis Intervention Training ........................................................................ 75 H. School Resource Officer Training............................................................... 75 I. Body-Worn and In-Car Camera Training ................................................... 76 J. Supervisor Training..................................................................................... 76 K. Officer Wellness Training ........................................................................... 77 L. Accountability Training .............................................................................. 78 XVIII. MUNICIPAL COURT REFORM .................................................................. 78 A. Ensuring that Municipal Code Enforcement is Driven by Public Safety.... 78 B. Comprehensive Amnesty Program.............................................................. 79 C. Revision of Ferguson Municipal Court Practices ....................................... 80 D. Ongoing Assessment and Improvement...................................................... 88 XIX. ACCOUNTABILITY ....................................................................................... 89 A. Principles of Accountability........................................................................ 89 B. Misconduct Complaint Intake, Investigation and Adjudication.................. 90 C. Internally Discovered Violations of Policy that Do Not Involve
Members of the Public ................................................................................ 97 D. Community-Centered Mediation of Misconduct Complaints ..................... 97 E. Ongoing Assessment and Improvement...................................................... 98 XX. CIVILIAN OVERSIGHT ................................................................................ 99 XXI. DATA COLLECTION, REPORTING, AND TRANSPARENCY............ 102 A. Data Collection.......................................................................................... 102 B. Public Availability of Policies and Reports .............................................. 102 C. Annual Report ........................................................................................... 102 XXII. MONITORING, COMPLIANCE ASSESSMENT, AND ENFORCEMENT........................................................................................... 103 A. Independent Monitor ................................................................................. 103 B. Selection and Compensation of the Monitor............................................. 104 C. Duties of the Monitor ................................................................................ 105 D. Monitor and DOJ Access and Confidentiality .......................................... 116 E. City of Ferguson Consent Decree Coordinator ......................................... 118 F. City of Ferguson Data Collection, Self-Assessment, and Report ............. 119 G. Court Jurisdiction, Modification of this Agreement, and Enforcement .... 119 H. Termination of this Agreement ................................................................. 120 XXIII. DEFINITIONS................................................................................................ 121
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I. INTRODUCTION The United States of America and the City of Ferguson (collectively, “the Parties”) enter into this Consent Decree (“Agreement”) with the shared recognition that the ability of a police department to protect the community it serves is only as strong as the relationship it has with that community. The provisions of this Agreement are meant to ensure protection of the constitutional and other legal rights of all members of the community, improve Ferguson’s ability to effectively prevent crime, enhance both officer and public safety, and increase public confidence in the Ferguson Police Department (FPD). To achieve these goals, the City of Ferguson (“City”) agrees to continue to change how FPD polices, and how it enforces the Ferguson Municipal Code and resolves municipal charges. This Agreement sets forth terms and requirements for the City and FPD to continue to reorient their approach to law enforcement to focus on community engagement and collaborative partnerships with groups and individuals throughout Ferguson, including those segments of the community that have not previously had strong or positive relationships with FPD or the City. The Agreement is designed also to increase transparency, strengthen accountability measures, and increase community and officer confidence that these systems are fair and consistent. The Agreement further includes requirements regarding the training, supervision, and direction necessary to police effectively and in a manner that builds community trust and improves officer safety and morale. The Parties also recognize that FPD officers often work under difficult circumstances, risking their physical safety and well-being for the public good. For these reasons, and noting the general principle that settlements are to be encouraged, particularly settlements between government entities, the Parties agree to implement this Agreement under the following terms and conditions.
II. BACKGROUND AND GENERAL PROVISIONS 1. On September 4, 2014, the United States Department of Justice (DOJ) notified the City that it was initiating an investigation of FPD for an alleged pattern or practice of unlawful misconduct, pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”); the anti-discrimination provisions of the Omnibus Crime Control
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and Safe Streets Act of 1968, 42 U.S.C. § 3789d (“Safe Streets Act”); and Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d (“Title VI”).
2. DOJ issued a 102-page written report of its findings (“Report”) on March 4, 2015. The Report documents DOJ’s finding of a number of patterns or practices of unconstitutional conduct and details DOJ’s concerns about a number of Ferguson’s police and court policies and practices.
3. While the City does not agree with every finding or opinion referenced in the Report, the City desires to focus its attention and resources on implementing a better communityoriented policing model and to become an exemplar of modern community-oriented policing for the entire region and for other cities of similar size.
4. The City’s desire and commitment to this goal is demonstrated by the actions that the City has already undertaken, especially since August 2014. The City has been willing, and remains willing, to continue such actions and to cooperate with DOJ to fulfill its aspiration to become an exemplar of modern community-oriented policing. DOJ acknowledges the good faith of Ferguson in trying to address actions that are needed to promote integrity in its police department and municipal court to ensure constitutional policing and court practices.
5. This Agreement is effectuated pursuant to the authority granted to DOJ under Section 14141 to seek declaratory and equitable relief where DOJ has reasonable cause to believe that there is a pattern or practice of conduct by law enforcement officers that deprives individuals of rights, privileges, or immunities secured by the Constitution or federal law.
6. Nothing in this Agreement is intended to limit the lawful authority of the Ferguson City Council or the lawful authority of the Chief of Police to oversee the operations of FPD.
7. Nothing in this Agreement, the United States’ Complaint, or the negotiation process shall be construed as an admission or evidence of liability under any federal, state, or municipal law including, but not limited to, 42 U.S.C. § 1983. Nor is the City’s entry into this Agreement an admission by the City, FPD, or any officer or employee of either entity that it has engaged in any unconstitutional, illegal, or otherwise improper activities or conduct. The City’s entry into this Agreement is not an admission of any of the findings or conclusions contained in DOJ’s March 4, 2015 Report.
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8. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 14141 and 42 U.S.C. § 3789d. Venue is proper in the Eastern District of Missouri pursuant to 28 U.S.C. § 1391, because the Defendant is located in, and the claims arose in, the Eastern District of Missouri.
9. The Parties have determined that this Agreement, rather than costly and protracted litigation, is the most effective means to resolve all issues between DOJ and the City.
10. This Agreement resolves all claims in the United States’ Complaint filed in this case. This Agreement also constitutes a full and complete settlement of any and all civil claims the United States may have as of the Effective Date against the City and its officers, employees, or agents, regarding any alleged pattern or practice of conduct by FPD officers and other City employees in carrying out the responsibilities referenced in the Report or the United States’ Complaint.
11. This Agreement shall constitute the entire integrated agreement of the Parties. No prior drafts or prior or contemporaneous communications, oral or written, shall be relevant or admissible for purposes of determining the meaning of any provisions herein in any litigation or any other proceeding.
12. This Agreement is binding upon all Parties hereto, by and through their officials, agents, employees, assigns, and successors. If the City establishes, reorganizes, or contracts with a government agency or entity whose function includes overseeing, regulating, accrediting, investigating, or otherwise reviewing or assuming the operations of FPD or any aspect thereof, including the Municipal Court, the City agrees to ensure these functions are consistent with the terms of this Agreement and shall incorporate the terms of this Agreement into the functions of the government agency or contracting entity as necessary to ensure consistency.
13. This Agreement is enforceable only by the Parties. No person or entity is intended to be a third-party beneficiary of the provisions of this Agreement for purposes of any civil, criminal, or administrative action. Accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement.
14. In the event of any public-records request for drafts of this Agreement or communications among the Parties leading to this Agreement, the Court will maintain continuing jurisdiction over any such request. Further, the Parties may assert in any action, motion,
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subpoena, or request for disclosure of information the ongoing applicability of a settlement privilege to all such drafts or communications among the Parties leading to this Agreement. The assertion of such privilege would be decided by the court with jurisdiction over the action, motion, subpoena, or request for disclosure.
15. This Agreement is not intended to limit or expand the right of any person or organization to seek relief against the City, FPD, or any officer or employee thereof, for their conduct or the conduct of FPD officers; accordingly, it does not alter legal standards governing any such claims by third parties, including those arising from city, state, or federal law. This Agreement does not expand, nor will it be construed to expand, access to any City, FPD, or DOJ documents, except as expressly provided by this Agreement, by persons or entities other than DOJ, the City, FPD, and the Monitor.
16. The City is responsible for providing necessary support and resources to FPD to enable FPD to fulfill its obligations under this Agreement, and as otherwise necessary to ensure that the requirements of this Agreement are fully implemented and sustained.
17. In the interest of avoiding costly and protracted litigation, the City, and its officials, agents, employees, and successors, by and through the City Council, agrees to entry of this injunction from engaging in conduct that deprives persons of rights, privileges, or immunities secured or protected by the laws of the United States.
III. COMMUNITY POLICING AND ENGAGEMENT 18. Strong community partnerships and frequent positive interactions between police and members of the public make policing more effective, increase public confidence in law enforcement, and can reduce bias. To promote and strengthen community partnerships and positive interactions between officers and Ferguson residents, the City and FPD will increase opportunities for community engagement and will continue to adopt a policing approach that is community-oriented and based on problem solving principles as described below. A. Community Engagement 19. Within 180 days of the Effective Date, the City will begin to host and participate in a series of small-group structured dialogues, arranged and led by a qualified neutral facilitator, between police officers and community members and groups, with an emphasis on community members and groups who previously have not had strong or positive relationships with FPD or
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the City. Each FPD police officer will participate in at least one series of meetings, with each series consisting of at least three structured, facilitated dialogues between the same set of officers and community members. FPD officers will make up at least one-third and up to one-half of each dialogue group.
20. Within 180 days of the Effective Date, the City and FPD will develop and begin implementing an FPD community-engagement plan for creating opportunities for routine and frequent positive interactions between officers and community members. The plan will be developed in consultation with the Neighborhood Policing Steering Committee to be established pursuant to paragraph 21 of this Agreement; Ferguson’s Civilian Review Board; representative individuals and groups within Ferguson; and community stakeholders who can provide unique perspectives and assistance, such as local colleges and universities. The community engagement plan will:
a. Provide for all sworn representatives of FPD to actively participate in neighborhood and community meetings and other events designed to bring a diverse group of community members and police personnel together. The plan will address the number of meetings and events to be attended by sworn personnel and shall ensure that all sworn officers are scheduled for certain meetings and events throughout the year. In no event shall this provision be construed to require that all sworn officers must attend any particular meeting or event. The plan will indicate the number and types of meetings and events to be attended on a regular basis;
b. Establish or provide for participation in a variety of long-term programs that promote and foster positive police-youth interactions. Potential programs include activities with the Ferguson Youth Initiative and Ferguson Youth Advisory Board and local athletic, art, or music programs;
c. Provide for the continuation of an FPD Explorer Program for youth in Ferguson, ages 12 to 21 years, to learn police-related skills and assist with community events and outreach; and
d. Place emphasis on creating opportunities for positive interactions with communities of color and residents of Ferguson’s apartment complexes.
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B. Neighborhood Policing Steering Committee
21. Within 90 days of the Effective Date, the City will begin community meetings to solicit volunteers and community members to serve on the Neighborhood Policing Steering Committee (NPSC), which shall perform a separate function than the Civilian Review Board (CRB) already established by the City and addressed in Section XX. Within 180 days of the Effective Date, the City will establish the NPSC. The NPSC will serve as a meaningful, but not exclusive, mechanism through which a diverse and broadly representative set of members of the Ferguson community can provide input to FPD and the City on law enforcement issues. The NPSC will provide input and be instrumental in developing the City’s Neighborhood Policing Plan. The NPSC will specifically perform the following advisory responsibilities:
a. Assist in the development of the community-engagement plan described in paragraph 20 above;
b. Advise FPD on strategies, training, and policies to improve community relations, implementation of the Neighborhood Policing Plan described in paragraph 26, and promotion and improvement of bias-free policing;
c. Coordinate with neighborhood groups and work with FPD to establish and carry out public safety priorities;
d. Provide recommendations to the City Council with regard to reform of, and amendments to, the Ferguson Municipal Code;
e. Provide input in the hiring and recruitment process for new officers, including lateral hires, as set forth in Section XV; and
f. Provide the City with input regarding the implementation of this Agreement, and provide the community with information about the status of implementation.
The agreement to give the NPSC these advisory responsibilities in no way changes or limits the advisory responsibilities of the CRB. Both the NPSC and the CRB are expected to participate in many of the advisory duties described above.
22. Within 180 days of the Effective Date, the City agrees to enact any City ordinances necessary to establish the NPSC and agrees to either: (a) select, pursuant to selection protocols developed in consultation with DOJ and with input of the broader Ferguson community, members of the NPSC who are representative of the diverse communities served by FPD; or (b) not limit the number of participants on the NPSC and allow attendees and volunteers
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to participate and choose the specific category to which such attendees and volunteers would like to devote time.
23. The City will, in consultation with FPD and the NPSC, develop and implement policies to receive, consider, respond to, and act upon NPSC recommendations in a fully transparent and timely manner. The City will designate a City employee to provide administrative support necessary for the NPSC to effectively perform its advisory function.
C. Ferguson Youth Advisory Board and Apartment Neighborhood Group
24. The City will continue the Ferguson Youth Advisory Board that was established in 2011. The City will revise as necessary the enabling ordinances to ensure that the Ferguson Youth Advisory Board provides input to FPD and the City on law enforcement issues, especially issues that have a particular impact on young people, such as FPD’s School Resource Officer Program, FPD’s pedestrian stop practices, and the selection and implementation of youthfocused FPD community engagement programs set out in paragraph 20 above.
25. Within 180 days of the Effective Date, the City agrees to assist with the establishment of a Neighborhood Association in each of Ferguson’s apartment complexes, including, for example, Canfield Green, Parkridge, and Northwinds. The City will work with these apartment complex Neighborhood Associations in the same manner that the City consults and works with other Neighborhood Associations, such as Old Ferguson East, Jeske Park, and Old Ferguson West.
D. Community-Oriented and Problem-Solving Policing
26. Building on its ongoing development of a Neighborhood Policing Plan and the community engagement efforts outlined above, within one year of the Effective Date, the City will develop an FPD crime-prevention plan and a community-policing plan to ensure that policing is oriented around community priorities and partnerships, and based on problem-solving principles.
27. FPD’s Community-Policing Plan will include a commitment to, and timelines for, implementing within two years, Ferguson’s “Neighborhood Policing Plan: A Police Community Partnership,” along with the additional elements set out in this section.
28. FPD will conduct monthly command staff meetings to discuss and analyze significant crimes, crime trends, policing complaints, neighborhood quality of life issues, as well as community priorities for policing, and to develop strategies for working with community
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members to address these issues. FPD commanders also will discuss and assess progress and identify needed and available resources to reduce crime and improve police-community relationships.
29. FPD will structure individual officer patrol areas around specific neighborhood boundaries, and, through supervision and evaluation, will encourage direct officer-resident communication. FPD will assign officers to specific areas to allow for neighborhood problemsolving projects, and will assign officers to patrol such areas for a minimum of one year. FPD also will require officers to:
a. Periodically patrol via walking and/or bicycle patrols in their assigned patrol area; b. Provide residents in their assigned area with their business email and business
telephone number, and respond to calls and emails directed to such officers from residents in their assigned area within a reasonable time period; and c. Attend community meetings, as scheduled, within the officers’ assigned patrol area. 30. FPD will revise its current shift schedules and deployment to better support a community-oriented approach to policing, and will post officer patrol area assignments on the FPD website. 31. FPD will timely collect, analyze and disseminate public crime data for each patrol area or other geographic area, as feasible and appropriate. E. Community Mediation Program
32. Within two years of the Effective Date, the City will affiliate with the Community Mediation Services of St. Louis to conduct neighborhood mediations that promote lasting resolutions of appropriately selected disputes among community members, while reducing the need for involvement in the criminal justice system. DOJ will approve that affiliation to ensure it comports with best practices in community meditation and the requirements below.
33. Within 180 days of the Effective Date, the City will, in consultation with members of the Ferguson community and the Monitor, develop a plan for providing neighborhood mediations in Ferguson. The plan will include an implementation timeline for interim steps, as appropriate, such as the retention of an administrator and volunteers; training; and initiation of mediations.
34. This neighborhood mediation program will:
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a. Support mediation at all stages of the dispute, from early-intervention to intervention after charges have been filed, as a diversion from the criminal justice system;
b. Be administered by an individual with experience in neighborhood mediation or the administration of mediation programs, including the selection and training of mediators (this individual may also administer the misconduct mediation program required by Section XIX);
c. Use mediators that reflect the diversity of, and come from the communities served by, the program;
d. Ensure that mediators are trained consistently with best practices; e. Have a screening tool to ensure that mediation participants can speak for
themselves in the mediation without fear of retaliation; and f. Have quality assurance mechanisms to ensure that all components of the program,
including volunteer participants, are operating effectively and consistently with best practices. F. Ongoing Assessment and Improvement 35. Within one year of the Effective Date, the City will develop protocols for regularly, and at least annually, conducting cost-feasible data-driven and qualitative assessments to measure the level and impact of its community engagement and community policing initiatives. These assessments will be designed to ensure community-based initiatives are being implemented effectively and appropriately. As part of the assessment process, the City and FPD will identify deficiencies and opportunities for improvement, implement appropriate corrective action and improvement measures, and document measures taken.
IV. REFORM OF THE FERGUSON MUNICIPAL CODE 36. To ensure constitutional enforcement of the Ferguson Municipal Code (“Code”) and further promote community-oriented policing, the City agrees to revise the Code and ensure that it comports with the United States Constitution and other laws; establishes clearly defined municipal offenses and appropriate penalties for violations; and adequately protects the public health, safety, and welfare. To achieve these outcomes, the City will implement the requirements below.
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37. The City has repealed Code Section 13-58 (“Failure to Appear Upon Arrest or Summons”); Section 13-60 (authorizing a fee for “Withdrawal of Complaint”); Section 1-16 (providing that individuals who fail to pay a fine or costs imposed for a municipal violation shall be imprisoned one day for every ten dollars of any such unpaid fine); and Section 1-17 (which pertained to imprisonment for failure to pay fine or cost of prosecution to include work). The City agrees that these provisions of the Ferguson Municipal Code will remain repealed and will not be replaced with any similar ordinance.
38. The City has prepared amendments, attached to this Agreement (see Attachment A), to the following sections of the Municipal Code. To the extent that the City has not yet adopted such amendments as of the Effective Date of the Agreement, the City agrees to do so within 30 days of the Effective Date.
a. Sections 13-26, 13-52, 13-61, 13-63, 13-68, and 13-70(2) and (3), regarding the administration of the Ferguson Municipal Court;
b. Sections 29-16, the “Failure to Comply with Order of Police Officer” ordinance; c. Sections 1-15 and 44-15 regarding available penalties; d. Section 7-145.1, “Occupancy Permit;” and e. Section 44-339, “Use of Right Half of Crosswalks,” Section 44-341, “Crossing at
Right Angles,” and Section 44-344, “Manner of Walking Along Roadway,” each of which will be repealed. 39. The City agrees to make any additional revisions to the Code necessary to enable the City to comply with this Agreement and the law. Where the Parties do not agree whether a revision is required, the Parties may seek resolution by the Court. 40. Within 120 days of the Effective Date, the City agrees to develop and implement a plan for the comprehensive reassessment and revision of remaining Code provisions in order to ensure that they are consistent with the United States Constitution and other laws and provide clear and appropriate guidance to the public and law enforcement officers. The reassessment and revision process will also be aimed at ensuring that the Code is designed and enforced in a manner that is focused on protecting public health, safety, and welfare. To help ensure that the Code’s design and enforcement are not unnecessarily burdensome on members of the Ferguson community and furthers public health, safety, and welfare, the City will conduct outreach meetings, including holding and attending meetings in locations throughout Ferguson, to hear the
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views of persons within the community, and will consider and incorporate these views into its code revisions where appropriate.
V. POLICIES AND TRAINING 41. To ensure that officers have the knowledge, skills, and direction necessary to police constitutionally, effectively, and in a manner that promotes both officer and public safety, the City agrees to continue to enhance its policies and increase the quality and scope of training provided to FPD officers and other FPD employees. As set forth in this section, the City agrees to develop systems for policy and training development and delivery that will generate policies and training that are current, responsive to identified needs, and effective. The City agrees to implement policies that reflect its commitment to community policing, procedural justice, and bias-free policing, and to support these directives through effective training for recruits, as well as for new and experienced officers, that reflects these same principles. Substantive training requirements for in-service and supplemental basic training are set out in Section XVII below. A. Policies Generally 42. The City agrees to incorporate the requirements of this Agreement into FPD and City policies and procedures as appropriate. These policies and procedures will fully incorporate the terms of this Agreement, be consistent with best practices, and comply with applicable law. The City agrees that its policies and procedures will be plainly written, logically organized, and use terms that are clearly defined. Unless otherwise noted, the City will seek to develop and implement all policies and procedures required by this Agreement within one year of the Effective Date, and will ensure the development and implementation of all such policies and procedures within two years of the Effective Date. 43. The City agrees to ensure that officers from all varying ranks and units have a meaningful opportunity to review and comment on new or revised policies and procedures. 44. The City agrees to submit all policies, procedures, protocols, plans and other administrative orders or directives related to this Agreement, as well as any proposed revision to such materials, to the Monitor and DOJ for review and approval prior to publication and implementation. Approval by the Monitor and DOJ will be based upon consistency with this Agreement, best practices in the relevant area, and applicable law.
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45. The City agrees to review each policy or procedure within one year of its implementation, and annually thereafter, to ensure that the policy or procedure provides effective direction to FPD personnel and remains consistent with this Agreement, best practices in the relevant area, and current law. The City agrees to review and revise policies and procedures as necessary upon notice of a significant policy deficiency during audits or reviews.
46. The City agrees to maintain a complete, up-to-date manual of all FPD policies and procedures that is organized and maintained in a manner that makes it easily accessible and clear to officers, employees, and others. Officers and employees will have access to the manual in hard copy form, and in a readily usable electronic format (e.g., through an FPD intranet system accessible within the mobile data computers of FPD officers). Revisions and updates to FPD policies and procedures will be incorporated into the manual.
47. The City agrees to ensure that changes in relevant case law and statutes are disseminated to relevant FPD personnel in a timely manner and incorporated, as appropriate, into FPD policies, procedures, and training.
B. Training Generally 48. Unless otherwise noted, the training required under this Agreement, as set out in this section and in Section XVII, and training on all policies revised or developed pursuant to this Agreement, will begin within 90 days of the Effective Date and be fully delivered within two years of the Effective Date. The parties acknowledge that FPD has already undertaken training on certain topics described in this Section and in Section XVII.
1. Training Committee and Plan 49. Within 180 days of the Effective Date, FPD agrees to establish a Training Committee that will include representatives from FPD and the Neighborhood Policing Steering Committee. The Training Committee may consult with additional training and subject matter experts as the Training Committee deems necessary. 50. Within 180 days of the Effective Date, FPD, in coordination with the Training Committee, will develop a schedule, to be approved by the Monitor and DOJ, for delivering all training specifically required by the provisions of this Agreement. 51. Within one year of the Effective Date, the Training Committee will develop a written Training Plan for supplementing FPD recruits’ academy training; enhancing FPD’s field
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training with a revised Police Training Officer program; and implementing comprehensive inservice training for officers and other City and FPD employees. The Training Plan will be developed in consultation with the Monitor and the City’s retained expert and must be approved by DOJ. The Training Plan will:
a. Identify training priorities, principles, and broad goals consistent with this Agreement and the substantive training requirements set out in Section XVII below;
b. Include a plan for delivering supplemental basic training and in-service training, as necessary to provide the relevant training required by this Agreement;
c. Coordinate the topics of supplemental basic training and in-service training with Police Training Officer training;
d. Establish the frequency and subject areas for supplemental basic and in-service training;
e. Develop a plan for at least 50 hours of annual in-service training each year, with approximately 65 hours of annual in-service training for each of the first two years of the Agreement;
f. Identify available training delivery and related resources, as well as unmet needs, such as instructors, curricula, and equipment;
g. Coordinate with City and others to assist in obtaining necessary training resources; and
h. Establish a rubric for assessing the content and delivery of training, including training provided by outside instructors or non-FPD entities. This rubric will allow for the measurement and documentation of student reaction to, and satisfaction with, the training they received, and student learning as a result of training, including the extent to which students are applying the knowledge and skills acquired in training to their jobs.
2. Training Instructors and Curricula
52. The Training Committee, pursuant to the Training Plan and in consultation with FPD’s training coordinator, the Monitor, and DOJ, will review all training curricula and lesson plans for consistency, quality, and compliance with applicable law, FPD policy, and this Agreement. The Training Committee will ensure that a variety of adult learning techniques,
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scenario-based training, and problem-solving practices, in addition to traditional lecture formats, are incorporated into training delivery. The Training Committee will advise the Parties regarding training that can be delivered in roll-call or online, as opposed to training that will require more intensive delivery. The Training Committee will also assess instructor qualifications and testing materials.
53. Within 18 months of the Effective Date, in consultation with the Training Committee, FPD will develop or adopt supplemental basic training and in-service training curricula and lesson plans for the training required pursuant to this Agreement. All curricula and lesson plans will be reviewed and approved by the Monitor and DOJ prior to delivery. All training required by this Agreement that is conducted by an outside instructor or non-FPD entity will be reviewed and approved by the Monitor and DOJ prior to delivery.
54. With the assistance of the Training Committee, FPD will ensure that instructors are qualified, and that all instructors, curricula, and lesson plans have been approved by the Training Committee, the Monitor, and DOJ. With the assistance of the Training Committee, FPD will actively seek out and retain qualified instructors from outside FPD to supplement the skills of its in-house training staff and adjunct instructors. As appropriate, FPD will incorporate experts and guest speakers, including judges, prosecutors, crime victims, criminal justice professors, community resource providers, and community members, including youth, to participate in relevant courses.
3. Training Review and Update 55. The Training Committee will review and update FPD’s Training Plan every 18 months. To inform these updates, the Training Committee will conduct a needs assessment, taking into consideration: effectiveness of past training, as measured by the rubric described above; trends in misconduct complaints; any problematic uses of force; analysis of officer safety issues; input from members at all levels of FPD; input from members of the community, including community concerns; court decisions; research reflecting the latest in law enforcement trends; and any changes to Missouri or federal law, or FPD policy. The Training Committee will also assess FPD’s Police Training Officer program on an annual basis, as set out in Section V.B.5 below.
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4. Training Coordination, Instructors, and Tracking 56. FPD agrees to designate a Training Coordinator to oversee implementation of all training; provide administrative assistance to the Training Committee; track training delivery; and ensure that training is delivered consistently with FPD’s Training Plan and the terms of this Agreement. The Training Coordinator will also be responsible for ensuring the measurement and documentation of training effectiveness, using the rubric designed by the Training Committee, described above. 57. The Training Coordinator shall ensure that all officers complete training as required and that documentation of training is maintained. FPD will accurately document all training provided to, or received by, FPD officers (whether required or otherwise) in a manner that allows analysis by training type, training date, training source, and by individual officer name. FPD will facilitate and encourage officer training by allowing for sufficient overtime and time off, as necessary. FPD will develop and implement measures, including disciplinary and non-disciplinary corrective action, to ensure that all officers successfully complete all required training programs as scheduled by FPD.
5. Police Training Officer Program 58. Within two years of the Effective Date, FPD will redevelop its field training program for new recruits into a Police Training Officer (PTO) program that is consistent with FPD’s Training Plan and this Agreement. The PTO program will incorporate established standards for police training officer programs, such as employing contemporary methods of adult education and problem-based learning methods. 59. Within one year of the Effective Date, FPD will develop and implement a participation policy that ensures only highly qualified officers serve as Police Training Officers. FPD agrees to develop eligibility criteria and methodology to select PTOs based on their written applications, performance evaluations, previous performance as police officers, and complaint and disciplinary histories. 60. FPD agrees to ensure that all PTOs receive a minimum of 40 hours of initial training, as well as necessary refresher training, consistent with the training plan, after one year of participation in the program. This training will be adequate in quality, quantity, scope, and type, and will address management and supervision; community-oriented policing; effective
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problem-solving techniques; and field communication. PTOs will be required to maintain, and demonstrate on a regular basis, their proficiency in managing recruits and subordinates, practicing and teaching community-oriented policing, and solving problems effectively. FPD will maintain current documentation of PTOs’ evaluations and training and remove PTOs or add as appropriate and necessary.
61. Within one year of the Effective Date, FPD will create a mechanism for recruits and lateral hires to provide confidential feedback regarding the quality of their PTO training, including the extent to which that training was consistent with what they learned in the academy or prior experience, and suggestions for changes to FPD’s training programs. FPD will document its response, including the rationale behind any responsive action taken or decision to take no action.
62. FPD’s Training Committee will, on an annual basis, assess FPD’s PTO program and consider emerging national policing practices in this area, and make recommendations for modifications to the City as appropriate. The City will institute appropriate changes to policies, procedures, and training related to FPD’s PTO program.
6. Supplemental Basic Training 63. FPD agrees to ensure that: (a) new police recruit hires will have graduated from a police academy requiring at least 900 hours of basic training for graduation; or (b) for recruits who did not graduate from such an academy, FPD will develop a plan for providing supplemental individualized training to such FPD recruits, to ensure that such recruits have at least 900 hours of basic training which include the supplemental basic training content described in Section XVII. FPD further agrees to develop individualized training plans for lateral police hires for providing supplemental training as necessary to ensure that the lateral police hire, through a combination of academy training, subsequent in-service training, and the supplemental training provided by FPD, has training that is substantively equivalent to a 900-hour training academy and the training requirements of this Agreement.
VI. BIAS-FREE POLICE AND COURT PRACTICES 64. This Agreement, in its entirety, will be implemented in a manner that ensures equal protection of the law for all individuals, regardless of race, color, ethnicity, national origin, religion, gender, sexual orientation, disability, or other protected characteristics. The provisions
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below, alongside the related training requirements in Section XVII.C of this Agreement, most directly address the obligations of the City, through FPD officers and employees, to provide police and court services free from unlawful bias or discrimination, and to fully recognize and value the legal rights and inherent dignity of all individuals, regardless of their protected characteristics.
A. Requirements of Bias-Free Policing
65. The City has prohibited unlawful discrimination as provided in Chapter 21 of the Ferguson Municipal Code. The City will administer all programs, initiatives, activities and police services without unlawful discrimination on the basis of race, color, ethnicity, national origin, religion, gender, gender identity, sexual orientation, age, immigrant status, disability, housing status, occupation, or limited English proficiency.
66. The City agrees to provide clear policy, training, and supervisory direction on prohibited conduct, including selective enforcement activities or decisions, or non-enforcement of the law, and the selection or rejection of particular tactics and strategies based upon stereotypes or bias. If necessary, the City will retain consultants in developing this policy, training, and supervisory direction, and such consultants shall possess the requisite expertise and be approved by DOJ. The City’s policies, training and supervisory direction shall take into account the influences of implicit bias, stereotype threat, and gender bias on officer enforcement decisions, use of force, and other police and court activity.
67. The City agrees that all FPD police and court employees will provide timely and meaningful access to police and court services to all, including individuals who have a limited ability to speak, read, write, or understand English (LEP individuals). The City will develop and implement, in consultation with the Monitor and with approval by DOJ, the policies and training necessary to ensure timely and meaningful police services to LEP individuals.
68. The City agrees to revise policy, training and supervisory direction related to officer response to allegations of domestic violence and sexual assault, which are largely crimes against women, to ensure that the law enforcement response is both effective and not undermined by gender bias.
69. The City agrees to consider any indicia of unlawfully discriminatory policing or other bias by officers or officer candidates in evaluating officer performance and making hiring and promotion decisions. This includes giving significant weight to an individual's history of
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sustained bias-related violations, including sexual harassment or discrimination against City employees or members of the public.
70. The City agrees to assess, and if necessary, improve upon the accuracy and reliability of, FPD's current processes for collecting and analyzing state-mandated “racial profiling” data. The City will develop protocols for collecting and analyzing such data, which will set forth additional data to be collected and analyzed and improve the accuracy and reliability of data collection methods. Such protocols will be consistent with the data collection requirements of Section XXI of this Agreement.
71. The City agrees that, if at any point it identifies indicia of unlawfully discriminatory conduct, it will take immediate corrective action as necessary to ensure that the program, initiative, activity, or service in question is not further applied or administered in a manner that unlawfully discriminates against individuals on the basis of protected characteristics.
B. Ongoing Assessment and Improvement
72. The City and FPD will develop cost-feasible protocols for regularly, and at least annually, conducting data-based assessments of the impact of all police and court programs, initiatives, activities, and services to determine whether they impose a disparate impact on the basis of protected characteristics. These ongoing disparate impact assessments will be consistent with the data collection requirements of Section XXI of this Agreement, and subject to the approval of DOJ. Such assessments will include regression analyses that will control for factors other than protected characteristics. Examples of regression analyses that will be conducted are set forth in Section XXII.C of the Agreement as outcome measures.
73. For the duration of this Agreement, the Monitor will be responsible for conducting the ongoing disparate impact assessments required by this section. The City agrees to work with the Monitor, or work with third parties with expertise in relevant data collection and analysis, during the duration of this Agreement to develop the capacity to conduct these assessments so that it can continue the performance of such assessments following termination of this Agreement.
74. Within one year of the Effective Date, the City will develop protocols for correcting any identified disparate impact in any FPD program, initiative, activity, or police or court service. Such protocols will require that, if any disparate impact on the basis of a protected characteristic is identified, the City will determine whether there are appropriate modifications or
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alternatives to the program, initiative, activity, or service that would have less of a disparate impact. If appropriate modifications or alternatives are available, the City will implement them within a reasonable time.
VII. VOLUNTARY CONTACTS, STOPS, SEARCHES, CITATIONS, AND ARRESTS 75. The City agrees to ensure that all FPD voluntary encounters, investigatory stops
and detentions, searches, citations, and arrests are conducted in accordance with the rights, privileges, and immunities secured or protected by the Constitution and the laws of the United States. FPD will ensure that these police activities are part of an effective overall crime prevention strategy; are consistent with community priorities for enforcement; build trust between FPD and the community; and are adequately documented for tracking and supervision purposes.
76. With respect to the subsections below, the City agrees to ensure that FPD officers adhere to the following principles:
a. No City or FPD employee will recommend, develop, or implement any law enforcement program, strategy, tactic, or action in order to generate revenue. Any revenue generated by law enforcement actions will be incidental to the public safety purpose;
b. FPD officers will not use race, color, ethnicity, national origin, religion, gender, sexual orientation, disability, or other protected characteristics as a factor, to any extent or degree, in investigating, searching, or restraining the liberty of any person, except as part of an actual and credible description of a specific suspect in an ongoing criminal investigation;
c. FPD officers will not initiate an encounter with any person or stop any person, or attempt to do so, for the purpose of checking for warrants even where there is an alternative pretext for the stop, unless the officer knows the person’s identity and that the person has outstanding warrants for his/her arrest, prior to the encounter;
d. FPD officers will not use “canned,” boilerplate, or conclusory language in any reports documenting investigatory stops or detentions. Articulation of reasonable suspicion, probable cause, or any other applicable legal standard will be specific, clear, and based on objective facts particular to the stopped, detained, or arrested
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person; and e. FPD officers will not use or rely on information known to be materially false or
incorrect in conducting or justifying any police activity. A. Voluntary Contacts: Social Contacts & Non-Custodial Interviews
77. FPD will recognize two distinct classes of voluntary contacts: social contacts, which are non-investigative conversations, and non-custodial interviews, in which the officer seeks to investigate the person he or she questions. Officers will be encouraged to engage in social contacts to develop relationships and implement FPD's commitment to communityoriented policing. Officers conducting or attempting to conduct non-custodial interviews will:
a. Introduce themselves by name and rank as soon as reasonable and practicable; b. Notify the person(s) encountered that they are free to leave and do not have to
answer any questions; c. Inform the subject that the encounter is being recorded; and d. Refrain from using words or actions that would tend to communicate that the
person(s) are not free to leave or must answer questions. 78. FPD will ensure that officers engaged in, or attempting to engage in, a social contact or non-custodial interview do not use a person's failure to stop, failure to answer questions, decision to end the encounter, or departure to justify an investigatory stop or detention, search, citation, or arrest of the person. B. Investigatory Stops and Detentions
79. FPD will ensure that officers conduct investigatory stops or detentions only when they have reasonable suspicion that a person has been, is, or is about to be engaged in the commission of an offense.
80. FPD officers will not conduct pretextual stops except where the actual reason for the stop is to investigate a felony.
81. FPD will ensure that, upon initiating an investigatory stop or detention, officers: a. Introduce themselves by name and rank as soon as reasonable and practicable. It will be FPD practice to also provide the stopped individual an FPD business card at the end of a stop; b. Immediately notify the person(s) encountered that they are not free to leave, and, if the officer intends to ask questions, that they do not have to answer any 20

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questions; c. State the reason for the investigatory stop or detention as soon as reasonable and
practicable; d. Inform the subject that the encounter is being recorded; e. Ensure that the stop or detention is no longer than necessary to take appropriate
action; and f. Act with professionalism and courtesy throughout the interaction. 82. FPD will ensure that officers do not further limit a person’s freedom during an investigatory stop or detention in any of the following ways unless the officer has an articulable basis (including but not limited to officer safety) to justify the action: a. Taking a subject’s identification or driver’s license away from the immediate
vicinity; b. Ordering a motorist to exit a vehicle; c. Placing a pedestrian against a wall; d. Directing a person to stand or remain standing, or to sit on a patrol car bumper or
any other place not of his or her choosing; e. Directing a person to lie on the ground; f. Applying handcuffs; g. Transporting a person any distance away from the scene of the initial stop,
including for the purpose of witness identification; h. Placing a person into a police vehicle; i. Frisking (see paragraph 83 below); or j. Unholstering or pointing a weapon. C. Searches
83. In order to frisk, or pat down, any person, that person must first be lawfully stopped or detained pursuant to reasonable suspicion. In addition, the officer must have reasonable grounds to suspect the person is armed and dangerous, and the frisk must be reasonably designed to discover weapons or instruments that could be used to assault the officer.
84. FPD will ensure that officers do not conduct any other search, of person or property, without: (a) probable cause, meaning that the objective facts available to the officer would warrant a person of reasonable caution in believing there is a fair probability that
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contraband or evidence of an offense is present in the place to be searched; and (b) a warrant or an exception to the warrant requirement, including but not limited to a search incident to arrest or exigent circumstances.
85. FPD will prohibit officers from seeking consent to search unless the officer has a reasonable and articulable suspicion that the search will reveal evidence of an offense, or the officer has legal authority for the search that is independent of consent. Officers will document in writing the basis for this suspicion or other legal authority.
86. FPD officers seeking consent for a search will affirmatively inform the subject of the right to refuse and to revoke consent at any time. The officer will record this notification and the subject’s affirmative statement of consent or denial of consent on his or her body-worn camera, except where exigent circumstances preclude such recording, in which case the officer will be required to obtain written consent on a form that notifies the individual of those rights.
87. Any affidavit or sworn declaration supporting an application for a search warrant will provide an accurate, complete, and clear description of the offense, the place or thing to be searched, the scope of the search, and the time and method of the search.
88. Administrative searches for building and housing code purposes by non-FPD officers, e.g., by building code inspectors or code enforcement officers, will be handled differently than the FPD searches covered by this section. The City agrees to develop and implement protocols for interaction between FPD officers and those performing administrative searches, including criteria for, and documentation of, FPD accompaniment of these officials during housing searches.
89. FPD will maintain centrally a log listing each search warrant, the case file where a copy of such warrant is maintained, the officer who applied for the search warrant, and each supervisor who reviewed the application for the search warrant.
D. Citations and Arrests
90. FPD will ensure that officers issue a citation or make a custodial arrest only when they have probable cause to believe a person has committed or is committing an offense.
91. The City will not use citation or arrest quotas, whether formal or informal, of any kind.
92. FPD will ensure that FPD officers obtain verbal supervisory approval, which shall be documented as soon as practicable:
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a. Before issuing three or more citations to any person in any single encounter, or more than one citation for the same act;
b. Before issuing citations for any of the following offenses: any housing or zoning code violation, including any occupancy or maintenance violation; failure to comply/obey; disorderly conduct; peace disturbance; manner of walking in roadway; resisting arrest; and obstruction of government operations/interfering with an officer;
c. Before transport of any arrested person on a charge of failure to comply/obey or resisting arrest; and
d. Of every other arrest as soon as reasonably practicable after the person is presented at FPD headquarters.
93. FPD will ensure that officers do not arrest any person for any code offense except: traffic offenses involving alcohol or drugs; offenses involving property damage or injury to others; animal neglect or cruelty; where the objective evidence indicates that, absent arrest, the person’s unlawful conduct will continue; where a valid citation cannot be issued because the person refused to identify himself or herself to the officer; or if the person is considered a danger to any person or property.
94. Within 180 days of the Effective Date, FPD will develop and implement a plan for correctable violations for FPD to address vehicular equipment violations, traffic violations involving the failure to provide proof of driver's license, any housing, zoning, or animal licensing violations (including occupancy and maintenance violations) enforced by FPD, and additional violations as the City deems appropriate. This plan will provide for individuals to provide proof of the correction of a violation within a reasonable period of time in lieu of a citation.
95. FPD will ensure that officers complete accurate reports for all activities that warrant a report, including all arrests, before the end of their shift absent extenuating circumstances approved by a supervisor.
E. Stop Orders, or “Wanteds” 96. The City has already eliminated some “stop orders” or “wanteds” issued by FPD and agrees to eliminate all “stop orders” or “wanteds” issued by FPD within 180 days of the Effective Date.
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97. The City agrees to implement a one-year moratorium on issuing new “stop orders” or “wanteds,” and on stopping, detaining, searching, citing, or arresting any person or vehicle on the basis of a “stop order” or “wanted.” The sole exception to this moratorium will be where: a) there is, both when the “stop order” or “wanted” is issued and enforced, verified and current probable cause of a state violation; b) the St. Louis County Prosecutor’s Office has refused the City’s request to seek a warrant related to the violation on a basis other than a lack of probable cause; and c) the “stop order” or “wanted,” both when issued and enforced, comports with FPD policy and is approved by the FPD Chief of Police.
98. During this moratorium, the City will continue to use “be on the lookout” or “allpoints” bulletins, and warrants, consistent with generally accepted police practice nationwide, and evaluate alternatives to the use of “stop orders” or “wanteds.” DOJ and the Monitor shall assist the City in identifying and evaluating alternative systems that improve officer and public safety and fully comport with constitutional and other legal requirements. Upon completion of the evaluation, the City shall implement the selected alternative, as approved by the Monitor and DOJ. Should the City determine after evaluation that it wishes to reinstate the “stop order” or “wanted” system and DOJ objects, the court shall resolve the matter. Under no circumstances shall the wanted/stop order system be reinstated without significant modifications to policies, use, and training to ensure that the system better protects officer and public safety, and comports with the Constitution and other legal requirements.
F. Supervision
99. Supervisors evaluating a request for approval to issue a citation, as set out in paragraph 92, will consider the legality of the citation, whether issuing the citation is required by public safety and would be consistent with community-oriented policing and the policing goals established by the City and the community, and whether the citation is unfairly duplicative, excessive, or retaliatory.
100. FPD will develop a protocol for checking all arrestees for signs of injury, including any complaint by the arrestee, when the arrestee arrives at FPD headquarters, and ensuring appropriate medical treatment.
101. FPD field supervisors will review each arrest report of officers under their command and will memorialize their review in writing by the end of the shift within which the arrest occurs, absent exceptional circumstances.
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102. Supervisors will review each request for a search or arrest warrant, including each affidavit or declaration before it is filed by an officer in support of a warrant application, for appropriateness, legality, and conformance with FPD policy and this Agreement.
103. Supervisors will review the operational plan for the execution of a search warrant, and, absent exceptional circumstances, supervisors will be present for the execution of the search warrant. A supervisor will document in the case file the exceptional circumstances preventing his or her presence. Once executed, a supervisor will review the execution of the search warrant. Supervisors will memorialize their reviews in writing within 24 hours of the execution of a search warrant.
104. Supervisors will assess warrant applications, citation and arrest reports, and all supporting documents for: accuracy and authenticity; "canned," boilerplate, or conclusory language; inconsistent information; and inadequate articulation of a legal basis for the police action taken.
105. Supervisors will regularly audit their assigned officers’ stop, search, citation, and arrest documentation for completeness, accuracy, legal sufficiency, and compliance with FPD policy and this Agreement. Supervisors will audit at least one CAD log for each officer under their supervision each week. Sergeants will conduct further review as shown to be necessary by weekly audits, data in FPD’s records management system, and other indicia.
106. Each supervisor will document those stops or detentions, searches, warrant applications, citations, and arrests that are legally unsupported, are in violation of FPD policy or this Agreement, or that indicate a need for corrective action or review of agency policy, strategy, tactics, or training. The supervisor will take appropriate action to address violations or deficiencies, including recommending non-disciplinary corrective action for the involved officer(s), and/or referring the incident for administrative or criminal investigation.
107. For each subordinate, the supervisor will track each violation or deficiency and the corrective action taken, to identify officers needing repeated corrective action.
108. A command-level official will review, in writing, all supervisory reviews related to stops or detentions, searches, warrant applications, citations, and arrests that the supervisor has determined to be unsupported by proper legal justification, in violation of FPD policy or this Agreement, or indicative of a need for corrective action or review of agency policy, strategy, tactics, or training. The commander’s review will be completed within seven days of receiving
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the document reporting the event in question. The commander will evaluate the corrective action and recommendations in the supervisor’s written report and ensure that all appropriate corrective action is taken, including referring the incident for an internal or criminal investigation, if warranted.
G. Ongoing Assessment and Improvement 109. Within 180 days of the Effective Date, the City and FPD will develop protocols for regularly, and at least annually, conducting cost-feasible data-driven and qualitative assessments of its voluntary encounter; stop, including pedestrian stop; search; citation; and arrest practices, including breakdowns by the protected characteristics of the subject. These assessments will be designed to ensure these law enforcement actions are being conducted appropriately in accordance with FPD policy and state and federal law. As part of this assessment process, the City and FPD will identify deficiencies and opportunities for improvement; implement appropriate corrective action and improvement measures; and document measures taken.
VIII. FIRST AMENDMENT PROTECTED ACTIVITY 110. The parties acknowledge that First Amendment protected activities serve important societal functions, including promoting transparency in government affairs, ensuring accountability of public officials, and encouraging community feedback—whether critical or laudatory—that ultimately reduce tension and foster a sense of openness and trust between law enforcement and the public. 111. FPD will ensure that all FPD personnel respect the First Amendment rights of all persons, including:
a. The right to observe and record officers in the public discharge of their duties in all traditionally public spaces, including sidewalks, parks, and locations of lawful public protests, as well as any other areas where individuals otherwise have a legal right to be present, including an individual’s home or business and common areas of public and private facilities and buildings;
b. The right to criticize or complain about police conduct without being subject to retaliation; and
c. The right to engage in lawful public protest.
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A. Right to Observe and Record 112. Consistent with the Order by Consent issued in Mustafa Hussein v. County of Saint Louis, Missouri, et al., 4:14-cv-1410-JAR (E.D. Mo., November 21, 2014), FPD will ensure that “its officers, employees, or agents, and those acting on its behalf, shall not enforce or threaten to enforce any rule, policy, or practice that grants law enforcement officers the authority or discretion to arrest, threaten to arrest, or interfere with any individual, including any member of the media or member of the public photographing or recording in public places unless that person is threatening the safety of others or physically interfering with the ability of law enforcement to perform their duties.” 113. FPD will ensure that FPD policy and training makes clear what conduct is considered “obstruction” or “interference,” with specific examples, to ensure that FPD officers do not unreasonably claim that an individual’s presence amounts to the offense of obstructing or interfering with a law enforcement officer, or otherwise violates the law. FPD will ensure that where the person’s location is causing the obstruction or interference, the officers recommend a less-intrusive location from which the bystander may continue to observe, record, and/or protest and give the individual a reasonable opportunity to comply prior to taking further enforcement action. 114. Individuals shall be permitted to record officer activity by camera, video recorder, cell phone recorder, or any other means. The use of a recording device during a police encounter shall not in itself be considered a threat to officer safety and thus shall not be a basis to require a person to refrain from recording or to put away his or her recording device, as long as the person recording is in a lawful location, is not threatening the safety of others or the police officers, and is not obstructing or interfering with the officer’s lawful duties, and is not otherwise violating the law. Officers may instruct an individual to cease recording and put away the recording device when that individual is being placed under arrest. 115. FPD will ensure that officers do not search, seize, or otherwise coerce production of recorded sounds, images, or videos without obtaining a warrant. Where an officer has a reasonable belief that a bystander or witness has captured a recording of critical evidence related to a felony and the exigencies of the circumstances demand it, the officer may secure such evidence for no more than 12 hours while a legal subpoena, search warrant, or other valid order
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is obtained. Upon seizing such property, officers may not search or review its contents without first obtaining a search warrant.
116. FPD will ensure that officers do not coerce individuals to consent to the search or seizure of their recording devices or recordings.
117. FPD will ensure that officers do not intentionally destroy cameras, other recording devices, sounds, images, or videos, and that they do not order an individual to intentionally destroy the same or otherwise cause such destruction, provided, however, that the City may dispose of material in accord with the record retention and destruction requirements established by state law.
B. Public Protests and Demonstrations
118. FPD will ensure that officers do not unlawfully interfere with individuals gathering in groups for public protests and demonstrations in a lawful manner and location.
119. FPD will revise current policies and protocols for policing public protests and demonstrations as necessary, in consultation with the Monitor and to be approved by DOJ. These policies and protocols will include:
a. Factors officers should consider when exercising their lawful discretion to arrest; b. Clear guidelines that minimize individually applied discretionary enforcement
decisions by officers during public protests; c. An effective traffic control plan for streets and sidewalks; d. Plan for public information sharing before, during, and after public
demonstrations; e. Guidelines and limitations on the use of less-lethal force during public
demonstrations, including the criteria and circumstances for the use of different types of force, required warnings, and documentation; f. Plan for clearly communicating to all law enforcement agencies participating in any response to a public demonstration in Ferguson the limitations and requirements for such participation, including limitations and requirements related to force, arrests, and officer uniforms, including officer identification; g. Centralized complaint intake process for use by individuals to make a complaint regarding an officer of any agency during a multijurisdictional response and referral process to an appropriate agency for adjudication of such complaint; and
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h. Officer safety and well-being (see Section XIV of this Agreement). 120. FPD will ensure that officers do not treat protestors differently based on the content of their speech or expression. 121. FPD will not use canines for crowd control and will not use law enforcement officers using rifle sights to monitor crowds during protests, and shall request other law enforcement agencies responding within Ferguson to refrain from doing the same. 122. FPD will ensure that all law enforcement officers employed by the City of Ferguson during public demonstrations have received appropriate training, including deescalation techniques, key concepts of the National Incident Management System command and management, including Incident Command Systems, multiagency coordination systems, and policing consistent with the First Amendment. FPD shall request other law enforcement agencies responding within Ferguson to ensure the same. C. Retaliation for First Amendment Activity Prohibited
123. FPD will ensure that officers do not take any police action in retaliation for individuals lawfully exercising their right to witness, observe, record, comment on, or protest police activity. This includes detaining, searching, arresting, issuing a citation, or using force in response to non-criminal statements or other expressive conduct, when the officer would not have taken such action in the absence of the statements or expressive conduct.
D. Supervision of First Amendment Related Arrests and Seizures
124. Only the Chief or the Assistant Chief may declare an assembly to be unlawful. Orders to disperse may be issued, if at all, only following such a declaration, and only by a supervisor. FPD will ensure that officers obtain supervisory approval, to be documented as soon as practicable, before issuing any citations or making arrests related to public protest activity, including violation of any state or local law, such as Mo. Rev. Stat. § 574.060 (refusal to disperse); § 574.040 (unlawful assembly); or ad hoc police rule limiting the time, place, and manner of lawful public assembly, see Mustafa v. Cnty of St. Louis, No. 4:14-cv- 1436 (E.D. Mo.) (Oct. 6, 2014) (issuing a preliminary injunction against the Missouri Highway Patrol and Saint Louis County with regard to the “keep-moving” policy).
125. FPD will ensure that officers obtain supervisory approval, to be documented as soon as practicable, before taking any action set forth below. In each of these circumstances, if reasonably practical, a supervisor shall respond to the scene and assess the situation in person.
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At a minimum, supervisors must be present to approve arrests and other actions prior to arrestees being transported to a holding facility, absent exigent circumstances to be documented as soon as practicable.
a. Issuing any citation or making any arrest related to the use of a recording device; b. Issuing any citation or making any arrest of any member of the media, whether
formally credentialed or not, including citizen-journalists and live-streamers; c. Performing any warrantless seizure of a recording device or recording; and d. Taking any other significant action involving recording devices or recordings. E. Ongoing Assessment and Improvement 126. Within 180 days of the Effective Date, the City and FPD will develop protocols for conducting, at least annually, cost-feasible data-driven and qualitative assessments of FPD’s practices related to First Amendment protected activity. These assessments will be designed to ensure that FPD officers are policing within the parameters of the First Amendment. 127. Assessments will include the review and analysis of complaints alleging misconduct related to First Amendment protected activity; an analysis of the number and nature of recording device seizures, arrests, or other interference with members of the press; and analysis of law enforcement response to public protest or demonstration. Any officer identified as having committed such misconduct shall be afforded an opportunity to respond to such complaints. As part of this assessment process, the City and FPD will identify deficiencies and opportunities for improvement; implement appropriate corrective action or improvement measures; and document measures taken.
IX. FORCE 128. The Parties agree that all FPD officers and employees must have an unwavering commitment to protecting human life, and to upholding the value and dignity of every person. To foster this commitment, and to ensure adherence to the Constitution and all other laws, FPD will ensure that its use-of-force policies, training, supervision, and accountability systems are designed to ensure that FPD officers, including civilian correctional officers:
a. Use force only when necessary to accomplish a legitimate public safety objective; b. Use de-escalation techniques and tactics to minimize the need to use force and
increase the likelihood of voluntary compliance with legitimate police orders;
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c. Use force in a manner that avoids unnecessary injury or risk of injury to officers and civilians, is proportional to the level of resistance or threat encountered, and is de-escalated at the earliest possible moment;
d. Recognize and act upon the duty to intervene to stop any officer or civilian correctional officer from using force that is unreasonable or unnecessary;
e. Immediately provide any necessary emergency medical assistance after using force and immediately summon additional medical assistance as necessary;
f. Accurately and completely report all reportable force used or observed by officers;
g. Are recognized and supported when they achieve public safety goals while avoiding use of force; and
h. Are disciplined when they use force that is unnecessary or objectively unreasonable or otherwise violates law or policy.
A. General Use-of-Force Requirements
129. The City will ensure that officers use force in accordance with the Constitution and other laws, FPD policy, and this Agreement.
130. FPD agrees to commit to a use-of-force model that, through policy, training, and supervision, provides officers with the skills and training necessary to make optimal force decisions and resolve situations without the use of force whenever possible. Under this approach, FPD will train and encourage officers to, where appropriate, slow down or stabilize a given incident, through tactical retreat or other de-escalation techniques, to create more time, space, resources, and options to resolve incidents, and to enhance officer safety.
131. Pursuant to this model, FPD will ensure that, whenever possible, officers gather information before using force to determine: whether the situation truly presents a threat to public safety; whether it may involve a medical/mental health crisis rather than a criminal matter; if a threat is present, what tactical options are available, including communication and negotiation; what other law enforcement personnel or resources should be involved; and whether the officer’s actions would be consistent with the agency’s code of ethics, including respect for the sanctity of life and the dignity of all persons.
132. FPD will specify all weapons and force techniques officers are authorized to use, and which weapons/use-of-force equipment officers must carry while on duty, for every officer
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assignment. FPD policies will clearly define and describe each force option and the circumstances under which use of such force is appropriate. If FPD makes any additional weapons/use-of-force equipment available to its officers in the future, it will likewise create a policy for the weapon/equipment. These policies, while recognizing that many incidents requiring a use of force are unique, will require that all FPD uses of force adhere to the core principles articulated in paragraph 128 above. FPD will ensure that officers carry only the weapons/equipment that have been approved by the department and that the officer has been properly trained and certified to use.
133. FPD will ensure officers do not use lethal force unless: (a) a person is displaying aggravated aggressive resistance, thereby leading the officer to an objectively reasonable belief that the person poses an imminent threat of death or serious physical injury to the officer or others, or to prevent escape of a violent felon where the officer has probable cause to believe that the suspect poses a threat of immediate, serious physical injury either to the officer or others; and (b) less intrusive methods to control the subject or avoid harm have been tried and were ineffective or would be ineffective. FPD will train and encourage officers to recognize the opportunity for and to employ tactical retreat, withdrawal, and other de-escalation techniques to increase incident resolution options and enhance officer safety.
134. FPD will ensure that officers do not use less-lethal force unless: (a) a person is displaying aggressive resistance by attacking or attempting to attack the officer or another person, and (b) less intrusive methods to control the person or avoid harm have been tried and proven to be ineffective or would be ineffective.
135. FPD will ensure that officers use the minimum amount of force necessary, objectively reasonable, and proportional to a person’s behavior when interacting with persons who are displaying passive resistance or active resistance. Force used in these situations should be low-level.
136. FPD agrees to train and require all officers to do the following: a. Identify themselves as officers before using force whenever safely possible. Whenever possible, officers will allow individuals the opportunity to submit to arrest before force is used. Prior to the use of any approved weapon/equipment, when possible and appropriate, officers will communicate to the subject and other officers that the use of the weapon is imminent to allow the subject an opportunity
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to comply; b. In determining whether the use of force is necessary and reasonable, consider
whether a subject may be noncompliant due to a medical or mental health condition, mental health crisis, physical or hearing impairment, language barrier, or drug interaction. When noncompliance appears to be due to such a condition, officers will be trained and required to employ de-escalation tactics and techniques where possible; c. Fulfill their duty to safely intercede to prevent the use of objectively unreasonable force; and d. Whether or not an eyewitness to an improper use of force or other constitutional violation, bring relevant information regarding known or suspected improper uses of force to the attention of a supervisor. 137. FPD will prohibit officers from doing the following: a. Using force on restrained individuals (e.g., subjects handcuffed or contained in a police vehicle) except: (a) when the individual's actions must be immediately stopped to prevent imminent or ongoing injury to any person; (b) to prevent the individual's escape or significant destruction of property; or (c) when the individual is refusing to get out of a police vehicle and reasonable attempts to gain voluntary compliance have failed, and a supervisor has approved the use of force to remove the individual. FPD will closely review force used against restrained individuals to ensure that it was necessary and proportional given the offense committed by the subject and the danger the subject posed to others; b. Using neck holds, a form of lethal force; c. Using force only because another officer is using force, or against persons who only verbally confront them; d. Using retaliatory force, including force used after a threat has diminished and that is thus not reasonably necessary; force intended to punish an individual for fleeing or otherwise resisting arrest; and force used in response to the expression of criticism or disrespect for an officer or any other person; e. Using force against individuals who may be observing or recording officer behavior, absent a basis for the use of force consistent with law, FPD policy, and
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this Agreement; and f. Using force to effect compliance with a command that is unlawful. 138. FPD will ensure that immediately following a use of force, officers adhere to the following requirements: a. Officers—and, upon arrival, a supervisor—will inspect and observe subjects for
injury or complaints of pain resulting from the use of force. Officers will render or obtain medical assistance, including emergency life-saving care where appropriate, for any person who exhibits signs of physical distress, has sustained a visible injury, expresses a complaint of injury or continuing pain, or was rendered unconscious. As necessary, officers will provide emergency first aid until professional medical care providers arrive on the scene. Any individual exhibiting signs of physical distress will be continuously monitored by the officer involved or another on-scene officer until medical care providers can assess the individual; b. Officers will handcuff individuals against whom lethal force has been used only when there are objective articulable facts indicating the individual remains a threat; c. Officers will not restrain individuals in a manner that compromises the individual’s ability to breath; and d. Following a use of force in which a person is killed or seriously injured, the agency controlling the scene/investigation will assign a trained officer or employee to provide the individual's family members with information about the incident, as appropriate, and provide them information about any available counseling services. Family may be kept from the seriously injured or killed person as necessary to protect the integrity of the scene, and law enforcement personnel should explain this rationale. Family members should not be restrained unless necessary to protect the integrity of the scene or when otherwise objectively reasonable. B. Weapon-Specific Requirements
139. In addition to the generally applicable force requirements of this section of the Agreement, FPD will ensure that officers comply with the weapon-specific requirements below.
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1. Firearms 140. FPD will ensure that only officers who have successfully completed approved training and are currently certified may be issued, carry, and use firearms. At least once a year, officers must qualify with each firearm they are authorized to carry while on duty. Officers who fail to qualify will immediately relinquish FPD-issued firearms on which they failed to qualify. Those officers who still fail to qualify after remedial training within a reasonable time will be subject to disciplinary action, which may include termination of employment. 141. Each shot fired is a separate use of force that officers must separately justify as reasonable. 142. If feasible, and if to do so would not increase the danger to the officer or others, officers will issue a verbal warning to the subject and fellow officers prior to shooting a firearm. 143. FPD will ensure that officers:
a. Do not unholster and display a firearm unless the objective circumstances create a reasonable belief that lethal force may become necessary;
b. Do consider their surroundings before discharging their firearms and will avoid unnecessary risk to bystanders, victims, and other officers;
c. Do not fire warning shots; d. Do not shoot through a door or window when the target is not clearly in view; and e. Do not shoot from or at a moving vehicle except to prevent otherwise unavoidable
serious injury or death to the officer or third parties. Officers will attempt to move out of the path of a moving vehicle rather than discharging a firearm. Officers will not place themselves in the path of or reach inside a moving vehicle. A fleeing vehicle, in and of itself, will not be considered a threat of immediate serious injury or death.
2. Electronic Control Weapons 144. FPD will ensure that only officers who have successfully completed approved training and are currently certified may be issued, carry, and use Electronic Control Weapons (ECW). Officers will complete ECW certification annually, consisting of updated FPD policy, weapon retention, technology changes, scenario-based training, and report-writing.
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145. Each ECW application (in probe mode or drive-stun mode) is a separate use of force that officers must separately justify as reasonable. FPD will ensure that, after the first ECW application, the officer will reevaluate the situation to determine if subsequent cycles are necessary, and will weigh the risks of subsequent cycles against other force options. In determining whether any additional application is reasonable, officers will consider that a subject may not be able to respond to commands during or immediately following an ECW application, and the officer will allow sufficient time for the subject to comply prior to applying another cycle. Officers will not employ more than three cycles or 15 total seconds of an ECW against a subject during a single incident.
146. FPD will ensure that officers: a. Do not continue to apply ECWs when ECW application is not leading to compliance; b. Do not use ECWs in drive-stun mode as a pain compliance technique. Officers may use ECWs in drive-stun mode only to supplement the probe mode to complete the incapacitation circuit, or as a countermeasure to gain separation between the officer and the subject so that the officer can consider another force option; c. Determine the reasonableness of ECW use based on all relevant circumstances, including the subject's apparent age, size, physical and mental condition, and the feasibility of lesser force options; d. Except where lethal force is the only other option, do not use ECWs when a deployment may cause serious physical injury or death from situational hazards, including falling, losing control of a moving vehicle, or becoming ignited from the presence of potentially explosive or flammable materials or substances; e. Except where lethal force is the only other option, do not use ECWs when the subject is visibly pregnant, apparently elderly, a child, visibly frail, of abnormally slight build, or in apparent medical or mental health crisis; f. Do not use ECWs on fleeing persons who do not pose an imminent threat of physical harm to the officer, third persons, or themselves. Flight will never be the sole reason for applying an ECW; g. Do not apply ECWs to a subject's head, neck, or genitalia;
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h. Do not activate more than one ECW at a time against a subject; and i. Do keep ECWs in a weak-side holster to reduce the chances of accidentally
drawing and/or firing a firearm; 147. FPD will establish protocols and training on officers’ responsibilities, in consultation with local emergency medical services personnel, to include:
a. Ensuring that subjects against whom ECWs were used receive a medical evaluation by emergency medical responders in the field or at a medical facility;
b. Ensuring that probes are removed from a subject's skin only by medical personnel or properly trained officers;
c. Minimizing the risk of positional asphyxia and the need to use restraint techniques that do not compromise a subject's breathing;
d. Monitoring all subjects who have received an ECW application while in police custody; and
e. Informing medical personnel of all subjects who have been subjected to multiple ECW applications, including prolonged applications (more than three cycles or 15 seconds), or who appear to be under the influence of drugs or exhibiting symptoms associated with “excited delirium,” or who were kept in restraints after ECW use.
3. Impact Weapons 148. Officers must justify the use of each separate impact weapon, such as a baton or asp. 149. Officers will not use improvised weapons, such as a flashlight or firearm, to strike a person, unless there is an immediate need to strike and the officer is unable to use a weapon that would be necessary and objectively reasonable under the circumstances. The failure to carry a baton when required to do so will not justify the use of an improvised weapon.
4. OC Spray 150. FPD will ensure that only officers who have successfully completed approved training and are currently certified may be issued, carry, and use Oleoresin Capsicum spray (OC spray). Certification will be completed at least once every two years, and will include information from the medical community on the effects of OC spray.
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151. Officers must justify each separate application of OC spray. 152. Officers will issue a verbal warning to the subject, fellow officers, and other individuals present prior to using OC spray, whenever possible. Officers will wait a reasonable amount of time after providing the warning to allow the subject to comply with the warning. 153. Officers will not use OC spray against individuals or groups who merely fail to disperse. 154. Officers will assist exposed subjects with decontamination and water-flushing of exposed areas as soon as feasible. No spit hood or mask of any type may be placed on a person subjected to OC spray until that person has been fully decontaminated.
5. Canines 155. FPD will ensure that only officers who have successfully completed approved training and are current in their certification and ongoing training requirements can serve as canine handlers, and that only dogs that meet their certification requirements can be deployed as FPD canines. FPD will work with canine trainers to ensure that detailed training records are maintained regarding whether each handler-canine team has met specific control criteria for each control exercise; to ensure the documentation of remedial training given in response to a canine team's deficiencies in any area; and to ensure that all observed deficiencies are reported to FPD's canine unit supervisor. 156. Canines and handlers will be certified annually by a nationally recognized trainer or organization whose standards are consistent with the law, FPD policy, and best practices. The certification process must involve the demonstration of control and proficiency in specific, widely-accepted obedience and criminal apprehension exercises. 157. FPD agrees that a police canine is primarily a locating tool, and is only used as a force tool when reasonable and appropriate, which should be a rare occasion. 158. FPD will ensure that no canine handler uses his or her canine solely to intimidate or frighten any person. 159. FPD will ensure that canine handlers keep their canines within visual and auditory range at all times during deployments, except when a canine clears a threshold (e.g., rounding a corner, entering a room, ascending or descending a stairwell), in which case the handler will regain sight and hearing of the canine as quickly as possible.
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160. FPD will ensure that canine handlers obtain verbal supervisory approval before a canine is deployed, absent documented exigent circumstances that permit this use of force under law, FPD policy, and this Agreement. The approving supervisor will not serve as a canine handler during the course of the deployment.
161. FPD will ensure that, before deploying a canine, canine handlers issue verbal warnings that a canine will be deployed and that the suspect should surrender, unless providing such warnings would create an imminent threat of danger to the canine handler or any other person on the scene. A canine handler will allow a reasonable period of time between each warning to provide a suspect an opportunity to surrender.
162. FPD will ensure that canine searches of residences are conducted on short leash unless the canine handler can determine with certainty that there are no authorized individuals in the home.
163. To limit the risk of unnecessary canine bites, FPD will ensure that canine handlers do not deploy canines off-leash to search for or apprehend a fleeing or concealed subject unless the following requirements are all satisfied:
a. The handler is in auditory range of a suspect; b. The subject is wanted for a violent felony, or the objective and particularized
circumstances make it reasonable to believe the subject is armed with a weapon capable of causing death or serious physical injury or otherwise poses an imminent threat of death or serious physical injury to another person, including the officer; and c. Lesser means (including waiting) have been tried and have been ineffective or cannot reasonably be expected to allow for the apprehension of the subject. 164. Canines will not be used to apprehend anyone suspected of being under the influence of drugs or alcohol, if no other serious crime is involved. Absent exigent circumstances, officers will also avoid deploying canines to apprehend persons believed to be in mental health crisis. 165. FPD will ensure that, when a canine apprehends a subject by biting, the canine handler calls the canine off at the first moment the canine can safely release its bite. If the suspect is determined to be unarmed, the handler will immediately order the canine to release the bite. When deciding to call off the dog, the handler must keep in mind that the average person
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will struggle if being seized or confronted by a canine. This struggling will not be cause for not calling off the canine.
166. FPD will ensure that officers do not deploy canines against persons believed to be juveniles unless objective circumstances lead to a reasonable belief that such deployment is necessary to prevent imminent serious physical injury or death to any person, including an officer.
167. FPD will ensure that canines are not used for crowd control. C. Use of Force in Ferguson Jail
168. To minimize the unnecessary use of force and enhance safety, FPD will ensure that officers and correctional officers do not possess or use firearms or ECWs within the FPD jail booking or lockup areas.
169. FPD will ensure that at least two correctional officers are present in the FPD jail at all times.
170. In addition to the use of body-worn cameras required by this Agreement, FPD will ensure that all parts of the jail where prisoners may be present are surveilled by stationary video cameras that are always recording. Supervisors will review jail video footage when investigating uses of force, in addition to conducting random or targeted reviews of video footage.
D. Use-of-Force Reporting and Investigation
171. To ensure that FPD officers use force only as permitted by the law, FPD policy, and this Agreement, and are held accountable when they do not; that officers are positively recognized when they appropriately minimize or avoid use of force; that FPD identifies and corrects training, policy, equipment, tactical, and officer safety concerns raised by use-of-force incidents; and that FPD's response to officer use of force builds community trust and confidence, FPD agrees to the following requirements.
172. Within 120 days of the Effective Date, FPD will develop and implement, in consultation with the Monitor and subject to approval by DOJ, a comprehensive process for reporting and investigating all FPD officer uses of force. The policies and training developed pursuant to this system will ensure that all FPD personnel, including officers, correctional officers, dispatchers, supervisors, and commanders at all levels, are required and trained to carry out their force-related reporting, review, and accountability duties and responsibilities.
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1. Force Reporting 173. Consistent with paragraph 384 of this Agreement, all officers using force above unresisted handcuffing will be required to document the use of force in writing before the end of shift, and to immediately report the use of force to a supervisor. An officer's use-of-force report will include a narrative that explains with specificity the type of force used; the legitimate police objective necessitating the use of force; details regarding the level of resistance encountered; and all efforts to de-escalate the situation to avoid the use of force, and to minimize the level of force used, or reason why such efforts were not attempted. Officers will note in their use-of-force reports the existence of any body-worn camera or in-car camera audio or video footage. 174. All officers observing a use of force by an FPD officer will be required to document their observations in writing before the end of shift. 175. FPD officers will not use conclusory statements, boilerplate, or canned language (e.g., “furtive movement” or “fighting stance”) without supporting incident-specific detail. 176. Where use-of-force reports are found to include material omissions or inaccuracies, FPD will take corrective action, including discipline as appropriate. Where the material omissions or inaccuracies are found to be deliberate, the employee will be disciplined, up to and including termination. 177. Officers who use or observe a reportable use of force but do not report it will be disciplined, up to and including termination. 178. Any FPD officer learning of a previous use of force by another FPD officer, whether from an FPD employee or a non-employee civilian, will immediately report the use of force to a supervisor unless the FPD officer is certain that the use of force was previously reported. 179. FPD policies will include particularized reporting requirements for certain types of force, such as ECWs, canines, OC Spray, and lethal force, including the use of firearms.
2. Force Response and Investigation 180. With the exception of the lowest level of reportable force (Type 3), an FPD supervisor will immediately respond to the scene of every reportable use of force by an FPD officer. The duties of the responding supervisor will include, at a minimum: interviewing all witnesses to the use of force; directing the gathering and preservation of evidence related to the
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use of force, consistent with paragraph 384 of this Agreement; ensuring that both officers and subjects of the use of force are given appropriate medical care; providing information, as appropriate, to family or friends of subjects of use of force who are injured; and taking steps to maintain calm and preserve the integrity of the scene. If notified, an FPD supervisor will respond to the scene of every use of force by another law enforcement agency within Ferguson's city limits. FPD will make a good-faith attempt to revise its mutual aid agreements with other agencies to ensure that FPD is notified when other agencies use force in Ferguson.
181. Scene management and investigation will be conducted by an uninvolved supervisor, i.e., a supervisor that neither ordered nor participated in the use of force.
182. Supervisors who conduct high-quality force investigations will receive preference for assignments and promotions. Supervisors who fail to adhere to FPD policy regarding use-offorce investigations, or conduct low-quality force investigations will be subject to corrective action or discipline as appropriate, including demotion.
183. The type of supervisory response and investigation will depend upon the level of force used and the surrounding circumstances. There will be three types of force for purposes of response and investigation within FPD:
a. Type 3 force is force that is reasonably expected to cause only transient pain and/or disorientation during its application as a means of gaining compliance, including pressure point compliance and joint manipulation techniques, but that is not reasonably expected to cause injury, does not result in an actual injury, and does not result in a complaint of injury. Type 3 force also includes the unholstering or pointing of a firearm at a subject and the pointing of an ECW at a subject. The use of Type 3 force requires that all officers using or observing force report and document the force as set out above, but does not require that a supervisor respond to the scene of the use of force or conduct a use-of-force investigation, absent extenuating circumstances to be set out in policy;
b. Type 2 force is force that causes an injury, could reasonably be expected to cause an injury, or results in a complaint of an injury, but does not rise to a Type 1 force. Type 2 force includes the use of an ECW; OC spray; weaponless defense techniques (e.g., elbow or closed-fist strikes, kicks, leg sweeps, and takedowns); impact weapons (when the use is not to the head, neck, or face); use of force
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against a restrained person; and canine apprehension (when no bite is involved). An uninvolved supervisor will investigate a Type 2 use of force and document the investigative findings in a written report; and c. Type 1 force includes lethal force; force resulting in death or serious bodily injury; force resulting in hospital admission; canine bites; more than three applications of an ECW on an individual during a single interaction, regardless of the mode or duration of the applications and regardless of whether the applications are by the same or different officers, or ECW application that lasts longer than 15 seconds, whether continuous or consecutive; and any vehicle pursuit. Any officer-involved shooting and any death while in or as a result of being in police custody will be considered a “critical incident” and investigated consistent with the requirements in paragraph 185 below. Depending upon the exact type of force and surrounding circumstances, all other Type 1 uses of force will be investigated by an uninvolved supervisor or an outside entity or agency, pursuant to protocols developed in consultation with the Monitor and approved by DOJ. 184. Type 3 use-of-force investigations will be completed within 30 days; Type 2 investigations will be completed within 45 days; and Type 1 investigations will be completed within 60 days, absent reasonable cause, as approved by the Chief of Police, in which case the investigation will be completed in 90 days. Use-of-force investigations will be fully documented in writing and include appropriate consideration of all relevant evidence. 185. Within 180 days of the Effective Date, FPD will develop and implement policies and training on the immediate response to critical incidents that occur in Ferguson and the investigation of critical incidents that involve FPD officers in or outside of Ferguson. Critical incident policies and training will be developed in consultation with the Monitor and be approved by DOJ and will address: a. The immediate FPD response to a critical incident, including the steps that involved- and other FPD officers and dispatchers must take to protect the integrity of the investigation; minimize injury and loss of life (e.g. the provision of medical care); and de-escalate tensions until any outside investigative agency assumes control of the scene;
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b. Requirements for the investigation of critical incidents that must be adhered to by FPD or any agency whom FPD arranges to have conduct critical incident investigations on a regular or ad hoc basis; and
c. Communications protocols that ensure that when critical incidents occur, authorized City representatives communicate with the public and the media swiftly, openly, and neutrally, respecting areas where the law requires confidentiality. Policies will require that designated City representatives release all information lawfully permitted as soon as possible after a critical incident and on a continuing basis, unless there is a compelling investigatory, personnel or public safety reason not to release the information.
3. Force Review and Assessment
186. The determination of whether a use of force violates FPD policy will be based on a preponderance of the evidence standard.
187. All Type 3 uses of force will be reviewed and approved by the supervisor, or an investigation initiated, as appropriate, within 24 hours.
188. Except as noted below, all Type 2 use-of-force investigations will be reviewed by the involved officer's chain of command within a specific, reasonable period of time to be stated in FPD policy.
189. Within 180 days of the Effective Date, FPD will develop and implement a Force Review Board (FRB) to determine whether certain use-of-force incidents were consistent with FPD policy and law, and to evaluate all use-of-force incidents from a tactics, training, policy, equipment, officer safety and agency improvement perspective. The FRB will:
a. Except where the administrative investigation of the incident is conducted by an outside agency, review all Type 1 investigations, all Type 2 investigations where there was an allegation of force-related misconduct, and a sample of all other Type 2 investigations;
b. Be comprised of three voting members: an FPD commander with skills and experience different from those of the other FRB members, who will chair the Board (“Chair”); a training supervisor; and a third member with law enforcement experience, who will be subject to approval by DOJ. The Chair may include any consultants, subject matter experts, or other civilians the Chair feels would be 44

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helpful in reviewing particular incidents. The FRB also may consult with other advisors as necessary. Consultants and observers, however, will not be permitted to vote; and c. Conduct comprehensive and reliable reviews of investigations, and issue its findings, within 14 days of submission to the FRB. The scope of the FRB's review will not be limited to assessing an officer's decision making at the moment the officer employed force. Rather, the FRB's review will include issues such as: the circumstances leading up to the use of force, tactical decisions, information sharing and communication, adequacy of supervision, equipment, training, any applicable medical response, and any commendable actions. The review will include consideration of the actions and inactions of all officers, supervisors, commanders, and dispatchers involved in the incident, as appropriate. 190. All use-of-force investigations reviewed by the FRB will be reviewed by the involved officer's chain of command within a specific, reasonable period of time to be stated in FPD policy. 191. Where the FRB finds that a use of force violates FPD policy, it will document its findings in writing and refer the matter to the disciplinary process as set out in Section XIX.B. of this Agreement. 192. Where the FRB determines that the force incident indicates a need for changes to policy, training, or equipment, it will document its findings in writing and advise the Chief of Police in writing, who will ensure that appropriate modifications occur and document their completion in writing. 193. Where the FRB determines that the use of force indicates a need for corrective action, such as training, it will advise the Chief of Police in writing, who will ensure that appropriate corrective action occurs and document its completion in writing. 194. The Chief of Police will approve all use-of-force investigation findings and all disciplinary adjudications. E. Ongoing Assessment and Improvement
195. Within 180 days of the Effective Date, the City will develop protocols for regularly, and at least annually, conducting cost-feasible data-driven and qualitative assessments of FPD's use-of-force practices. These assessments will be designed to ensure that FPD officers
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only use force in accordance with state and federal law as well as FPD policies and values. Assessments will involve the analysis of use-of-force data to identify officer-specific, unitspecific, and department-wide trends, and will include reviews of FRB and other force investigations; force reporting; officer injury reports and incidents in which medical assistance was requested or provided following a use of force; and complaints alleging excessive use of force. As part of this internal assessment process, the City and FPD will identify deficiencies and opportunities for improvement; implement appropriate corrective action or improvement measures; and document measures taken.
X. CRISIS INTERVENTION 196. FPD will implement a Crisis Intervention Team (CIT) first-responder model of police-based crisis intervention with community, health care, and advocacy partnerships to: (a) assist individuals who are in mental health crisis or who are in crisis related to the influence of alcohol or drugs (“individuals in crisis”); (b) reduce the need to use significant force against individuals in crisis and improve the safety of patrol officers, individuals in crisis and their families, and others within the community; (c) provide the foundation necessary to promote community solutions to assist individuals with mental illness; and (d) reduce the need for individuals with mental illness to have further involvement with the criminal justice system. A. Crisis Intervention Coordinator 197. Within 180 days of the Effective Date, FPD will designate an officer, at the rank of Lieutenant or above, to act as a Crisis Intervention Coordinator (“Coordinator”) to better facilitate communication between FPD and members of the area mental health community and to increase the effectiveness of FPD's crisis intervention program. The Coordinator shall identify, develop, and maintain partnerships with program stakeholders and shall serve as a point of contact for advocates, individuals with mental illness, their families, caregivers, professionals, and others associated with the mental health community. 198. The Coordinator will be responsible for ensuring the selection of appropriate candidates for designation as specialized CIT officers consistently with the requirements set forth in this Agreement. The Coordinator shall also ensure that, within one year of the Effective Date, there are enough specialized CIT officers to have at least one CIT officer on duty and available to respond to calls and incidents involving an individual in crisis at all times. The Coordinator
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will assess the number of CIT officers necessary to achieve this goal, identify gaps in coverage of particular shifts and on call schedules, and develop strategies to fill those gaps. The Coordinator will also be required to ensure that officers and dispatchers are appropriately responding to CIT-related calls, and that their efforts and successes are appropriately publicly recognized.
B. Specialized Crisis Intervention Officers 199. Designation as a specialized CIT officer will be voluntary. To the extent feasible, these officers will continue to be assigned to their regular patrol divisions and will maintain their standard patrol duties, except when called upon to respond to incidents or calls involving individuals in crisis. Officers who serve as CIT officers will receive a salary increase during their service in the role, to reflect the importance and the additional demands of the position. 200. To be eligible for consideration, officers must have at least three years of experience as a law enforcement officer. FPD will assess each applicant's fitness to serve as a CIT officer by considering the applicant's written application, supervisor recommendations, disciplinary file, and an in-person interview. Officers with a history of complaints regarding the use of excessive force that receive a disposition of “sustained” or “not sustained” will be presumptively ineligible to be CIT officers. 201. CIT officers who are dispatched to an incident involving an individual in crisis will have primary responsibility for the scene, unless a higher-ranking officer has assumed responsibility for the scene. In that case, the higher ranking officer will seek the input of a CIT officer regarding strategies for resolving the crisis. 202. In addition to the crisis intervention training provided to all FPD officers, CIT officers will receive specialized CIT-specific training consistent with FPD's Training Program and the terms of this Agreement, including the requirements set forth in Section XVII. C. Crisis Intervention Requirements 203. FPD will, where practicable, dispatch at least one specialized CIT officer, as well as one additional officer, to all incidents involving an individual in crisis. FPD will develop and implement appropriate policies to ensure that, in situations in which a CIT officer is not available to respond immediately to a call or incident involving an individual in crisis, FPD's response is consistent with the principles of the crisis intervention program.
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204. FPD will encourage specialized CIT officers to redirect individuals with mental health and substance abuse issues to the health care system, where appropriate.
205. FPD policy will provide that a crisis intervention response may be necessary even in situations where there has been an apparent violation of law. This policy shall not prevent responding FPD officers from conducting law enforcement action necessary to address an urgent public safety situation.
D. Ongoing Assessment and Improvement 206. Within 180 days of the Effective Date, the City and FPD will develop protocols for at least annually conducting cost-feasible data-driven and qualitative assessments of FPD’s CIT first responder model of police-based crisis intervention. These assessments will be designed to ensure FPD's crisis intervention practices allow FPD to provide an appropriate response to an incident involving an individual in crisis, including reducing injuries to officers, persons in mental health crisis, and the public. Assessments will include review and analysis of whether CIT officers were properly dispatched to calls for service involving an individual in crisis, as well as targeted and systematic review of CIT conduct where CIT officers did respond. As part of this internal assessment process, the City and FPD will identify deficiencies and opportunities for improvement; implement appropriate corrective action and improvement measures; and document measures taken.
XI. SCHOOL RESOURCE OFFICER PROGRAM 207. Ferguson’s existing school resource officer (SRO) program offers a unique opportunity to build trust and cooperation between Ferguson's youth and law enforcement on a daily basis. This program, through education and the promotion of mutual respect, also provides Ferguson the opportunity to reduce students’ unnecessary involvement in the juvenile and criminal justice systems, which can have profound negative effects on students’ engagement and success in school and the broader community. In light of these dynamics, FPD agrees that its SRO program will build positive relationships between officers and youth, avoid unnecessary negative police actions such as arrests, and develop alternatives that promote keeping students in school and out of the criminal justice system.
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A. Revision of SRO Program and Training and Qualifications of SROs
208. FPD agrees to use SROs who: (a) have the ability to work effectively with students, parents/guardians, teachers, and school administrators; (b) possess strong interpersonal communication skills; (c) have the ability to competently engage in public speaking; (d) have effective teaching skills; (e) have effective counseling skills; (f) understand the importance of diversion programs and alternatives to arrest for youth; (g) are respectful to the youth and families of all backgrounds and cultures; and (h) have an interest in promoting and enriching the lives of young people. In selecting an SRO, the recommendation of the School District and the principal of the school to which the officer will be assigned shall be considered.
209. FPD agrees to ensure that, after an officer is selected for the position of SRO and prior to assuming SRO responsibilities, the officer receives sufficient training that is consistent with FPD's Training Plan and the terms of this Agreement.
210. Within 120 days of the Effective Date, in consultation with the FergusonFlorissant School District (FFSD) and consistent with the agreements with the FFSD, the Monitor, and subject to approval by DOJ, FPD will develop an SRO program and operations manual that clearly defines the role of each SRO and promotes the role of SRO as one of educator, counselor, mentor, and law enforcement problem-solver, consistent with best practices. The manual will address youth-appropriate law enforcement techniques; use of restorative approaches to address student behaviors; arrests of students; notification to parents/guardians when students are arrested; searches of students; special considerations regarding use of force within and around schools; procedures to receive and respond to complaints regarding SROs; selection of SROs and SRO assignments; training requirements; weapons qualifications; required equipment and supplies; opportunities for community-stakeholder meetings; SROs’ role in identifying candidates for FPD's Explorer program and the City’s Police Academy Assistance program; and the collection, analysis, and use of data regarding law enforcement activities in the FFSD schools.
211. Within 90 days of the Effective Date, FPD agrees to review and make a goodfaith effort to amend its Memorandum of Understanding (MOU) with FFSD, to delineate authority and specify procedures for law enforcement interactions with students while on school grounds, consistent with this Agreement. Before providing SRO services at any school in which FPD is not currently engaged, the City will enter into an MOU with the appropriate school
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district consistent with this Agreement. Further, any subsequent MOU with FFSD shall be consistent with this Agreement.
B. SRO Non-Involvement in School Discipline
212. FPD agrees to ensure that SROs and other FPD officers participate only in situations where police involvement is necessary to protect physical safety and do not participate in any situation that can safely and appropriately be handled by a school's internal disciplinary procedures. Incidents involving minor offenses committed by students, including, but not limited to, disorderly conduct, peace disturbance, loitering, trespass, profanity, dress code violations, and fighting not involving a weapon and not resulting in physical injury, will be considered school discipline issues to be handled by school officials rather than criminal or municipal code violations warranting FPD involvement, unless necessary to protect the physical safety of any person. Nothing herein is intended to prevent victims from reporting crimes or seeking assistance from SROs or other FPD officers.
213. FPD agrees to ensure that SROs and other FPD officers who intervene in an incident in order to ensure physical safety employ age-appropriate conflict resolution techniques to de-escalate the situation whenever possible and refer the matter to school personnel at the earliest opportunity.
214. FPD agrees to ensure that SROs continue to contribute positively to their school communities by serving as educators in addition to their responsibilities to protect the safety of students and school personnel. Nothing in this Agreement limits or is intended to limit FPD's role in providing mentoring, counseling, education, and support to students, faculty and school officials.
C. Minimizing School Arrests and Force
215. FPD agrees to develop and implement policies that discourage the arrest of students on school grounds except as necessary to ensure the physical safety of students, school personnel, and the public. The City agrees not to execute arrest warrants for municipal ordinance violations against students during school hours or school-sanctioned events on school grounds.
216. FPD agrees to ensure that officers document in sufficient detail the basis for any arrest on school grounds, including any factors that justify arresting the youth at school and factors that support a determination of probable cause.
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217. FPD agrees to ensure that, upon arresting a student, officers notify the student's parent/guardian of the arrest as soon as practicable. The officer must notify the student's parent/guardian of the nature of the incident leading to arrest, the arrest charges, and if the student was removed from school grounds, the location of the student and relevant contact information. If a parent/guardian is not notified within two hours of the arrest, the arresting officer must document, in writing, the reason for the delay.
218. FPD agrees to ensure that officers do not use restraints—including, but not limited to, handcuffs—on a student on school grounds, unless the objective circumstances indicate that the restraints are necessary to ensure the immediate physical safety of any person.
219. An FPD officer may not remove a student from school grounds with the intent of circumventing the requirements of this Agreement.
220. Within one year of the Effective Date, FPD agrees to assist FFSD to develop a conflict resolution program in the schools; a system for referrals to school discipline personnel; alternatives to arrest; and diversion programs for students who are charged with offenses to minimize the involvement of students and youth in the juvenile and criminal justice systems. These programs will be structured to assess the underlying causes of the student's misbehavior and to develop and implement steps to address those underlying causes, and, if authorized by FFSD, will be developed in consultation with the Monitor and be approved by DOJ.
221. FPD will require that SROs exercise their discretion to refer youth to alternatives, rather than arrest them, whenever possible.
222. FPD agrees to ensure that SROs and other FPD officers do not use force on a student on school grounds unless necessary to address an immediate threat to the physical safety of the officer or any other person. In those situations where an officer must use force, the officer must act in accordance with all applicable use-of-force policies and the terms of this Agreement.
223. FPD will ensure that FPD officers de-escalate school-based incidents whenever possible. SROs should work with the FFSD to emphasize the use of restorative approaches to address behaviors and to minimize the use of law enforcement intervention.
D. SRO Supervision and Evaluation 224. FPD agrees to ensure that supervisors visit SROs to observe SRO activity in schools at least once every two weeks.
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225. FPD agrees to ensure that supervisors solicit formal feedback on SRO performance from teachers, school administrators, parents/guardians, and students at least once a semester.
226. FPD agrees to ensure that, at least once per semester, SRO supervisors meet with SROs and school administrators to review incidents in which SROs and/or other FPD officers were involved in the discipline, arrest, or restraint of a student. The review will evaluate the effective use of skills learned through professional development and identify areas for continuous improvement.
E. Ongoing Assessment and Improvement 227. Within 180 days of the Effective Date, the City and FPD will develop protocols for at least annually conducting cost-feasible data-driven and qualitative assessments of FPD’s SRO program. These assessments will be designed to ensure that FPD's SRO program is accomplishing the objectives of reducing students’ unnecessary involvement in the criminal justice system, building trust between students and Ferguson law enforcement, and ensuring the protection and safety of students. Assessments will include review and analysis of calls for service in schools, as well as officer uses of force, arrests, or charges brought on school grounds; decisions not to arrest when arrest was permitted by FPD policy; complaints regarding FPD officers on school grounds; and student and staff perceptions of school safety and officer fairness, including breakdowns by protected characteristics for all assessments. As part of this internal assessment process, the City and FPD will identify deficiencies and opportunities for improvement; implement appropriate corrective action and improvement measures; and document measures taken.
XII. BODY-WORN AND IN-CAR CAMERAS 228. In an effort to bring continued transparency regarding police activities; improve the effectiveness and reliability of use-of-force and misconduct investigations; enhance supervision of FPD stops, searches, and arrests; and provide material for officer training, the City will equip FPD officers with body-worn and in-car cameras, and will ensure that such devices are used consistent with law and policy. All aspects of FPD's use of body-worn and in-car cameras will be designed and implemented to promote transparency, provide learning
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opportunities to officers, and increase officer safety, while ensuring officer accountability and respect for individual privacy rights.
A. Body-Worn and In-Car Camera Requirements 229. Within 180 days of the Effective Date, the City agrees to ensure that all FPD patrol officers, patrol supervisors, jail personnel, and other FPD employees reasonably expected to regularly interact with the public are equipped with, and required to wear while on duty, fully functioning body-worn cameras and microphones. The City further agrees to ensure that all marked FPD vehicles that are in use are equipped with fully functioning in-car cameras with microphones. Within this time period, the City will work with the vendor to obtain any hardware, software, or other equipment necessary to enable body-worn and in-car camera recordings to be stored, organized, maintained, and retrieved consistent with the terms of this Agreement. The City has already secured an agreement with a vendor to meet the objectives within this Agreement. 230. The City agrees to commit sufficient funds to maintain all body-worn and in-car cameras in working order, and to retain staffing hours sufficient to maintain and retrieve camera footage for investigatory, training, evidentiary, and public access purposes. 231. Within 60 days of the Effective Date, the City agrees to develop and implement policies to direct the use of body-worn and in-car camera equipment. Such policies will establish clear and specific direction regarding when officers are required to activate body-worn and in-car camera devices, as well as when officers must stop recording during an event.
a. The body-worn camera policy will require activation of body-worn cameras for all investigatory stops; all arrests; all searches, except where specifically articulated and approved privacy considerations require a search not to be recorded; all encounters with subjects believed to be in a mental health crisis; and other scenarios as appropriate; and
b. The in-car camera policy will require activation of in-car cameras for all traffic stops and pursuits until the motor vehicle stop is completed and the stopped vehicle departs, or until the officer's participation in the motor vehicle stop ends; all requests for consent to search a vehicle, non-consensual vehicle searches, and canine deployments; all prisoner transports; and other scenarios, as appropriate.
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232. Consistent with best practices, officers shall have discretion not to record in certain situations, such as when interviewing victims or witnesses who are reluctant to cooperate if recorded. In such cases, officers shall articulate on camera their reason for not recording the activity. FPD policy will expressly describe the situations in which officers have the discretion not to record and will make clear that, except in such situations, officers must record all interactions with members of the public.
233. The use of a body-worn camera shall not alter or satisfy an officer's obligation to use an in-car camera as required by policy, nor shall use of an in-car camera alter or satisfy an officer's obligation to use a body-worn camera as required by policy.
234. Officers shall document the existence of any camera footage on all required reports, and shall immediately report to their supervisor, and in writing, any non- recorded event that should have been recorded under FPD policy, as well as any interruptions or terminations of recordings. Intentional failure to activate or continue recording devices as required, or use otherwise contrary to FPD policy, shall result in discipline.
235. Officers shall inform individuals that they are being recorded at the earliest reasonable and safe opportunity.
236. The City agrees to ensure that recording equipment assigned to officers or their cars is functioning properly at the beginning and end of each shift. Officers shall report immediately any improperly functioning equipment. The City agrees to supplement officer equipment checks by developing and implementing a schedule for testing body-worn and in-car camera recording equipment to confirm that it is in proper working order.
237. The City agrees to ensure that body cameras are worn in a manner that prevents obstruction of the camera viewpoint to the greatest extent possible.
238. The City agrees to ensure that body-worn cameras are only used in conjunction with official law enforcement duties. Cameras shall not be used to record encounters with known undercover officers or confidential informants; when officers are engaged in personal activities or conversations unrelated to their official duties; when officers are having conversations with other FPD personnel that involve case strategy or tactics; and in any location where individuals have a reasonable expectation of privacy (e.g., restroom or locker room).
239. Officers shall be prohibited from accessing body- or in-car camera footage for personal use or from copying camera footage to their own personal computers, computers
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accessible by the general public, or public websites. Nothing within this paragraph shall preclude the City from releasing body-worn or in-car camera footage to the public consistent with the requirements of paragraph 249 below.
B. Supervisory Responsibilities Related to Body-Worn and In-Car Cameras
240. Supervisors shall ensure that officers under their command use body-worn and incar recording equipment consistent with policy and this Agreement and shall hold officers under their command accountable when they do not use body-worn and in-car recording equipment consistent with policy and this Agreement. An investigation with respect to why a body-worn camera or in-car camera was not used will be initiated. The failure to use body worn and in-car camera equipment as required by FPD policy will result be grounds for discipline consistent with FPD policy.
241. Supervisors shall be required to periodically inspect body worn cameras and incar video cameras for functionality. Supervisors shall immediately report any equipment problem to a designated FPD or City official. The City agrees to take all necessary steps to promptly repair equipment to ensure consistent availability of fully functioning body-worn and in-car cameras for all appropriate officers.
242. The City agrees to ensure that supervisors regularly review body-worn and in-car camera recordings in a manner that promotes close and effective supervision and that is consistent with this Agreement. Specifically, supervisors shall:
a. Identify and review all relevant body-worn and in-car camera recordings as part of conducting mandatory supervisory reviews of specific incidents, such as stops, searches, arrests, or uses of force. If an Electronic Control Weapon (ECW) was used during an incident, supervisors shall also obtain and review relevant ECW camera footage, if any;
b. Identify and review all available body-worn and in-car camera recordings in the course of conducting misconduct investigations. If an ECW was used during an incident, supervisors shall also obtain and review relevant ECW camera footage, if any;
c. Identify and review all available body-worn and in-car camera recordings of all officers listed in any FPD report regarding any incident involving injuries to a prisoner or an officer, uses of force, vehicle pursuits, or misconduct complaints.
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If an ECW was used, supervisors shall also obtain and review relevant ECW camera footage, if any. d. Regularly, and at least on a quarterly basis, conduct both systematic and random audits of the body-worn and in-car camera recordings of officers under their command in order to assess the quality and appropriateness of officer interactions with the public, identify training or professional development needs, and ensure that officers are using body-worn and in-car camera equipment consistent with policy and this Agreement. 243. Supervisors shall incorporate the knowledge gained from reviewing body-worn and in-car camera footage into their ongoing evaluation, supervision, and training of officers. 244. The City will ensure that the Training Coordinator, in consultation with other FPD supervisors, will conduct regular reviews of body-worn camera and in-car camera footage to identify training needs and scenarios, which shall be addressed by, and incorporated into, training curricula and programs. C. Storage and Public Availability of Recordings 245. Within 180 days of the Effective Date, the City agrees to develop and implement protocols regarding the storage, retention, and public accessibility of body-worn and in-car camera recordings. 246. The City will ensure that all recordings are stored by officers in a centralized location or on a remote server at the end of the officer's shift and are properly categorized and accessible within 24 hours of the recording being made. Recordings will be categorized according to the kind of incident or event captured in the footage. 247. The City agrees to take appropriate precautions to ensure the integrity and security of every recording, including through the adoption of specific policies for logging and tracking all body-worn and in-car camera recordings. 248. The City will retain and preserve all non-evidentiary recordings for at least 90 days, and all evidentiary recordings for at least two years or, if a case remains under investigation or in litigation, until at least one year after the final disposition of the matter, including appeals. To the extent that this Agreement is still in effect five years after the Effective Date, the Parties agree to reconsider the retention timelines herein.
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249. In order to continue to promote transparency, foster accountability, and enhance public trust in FPD, the City agrees to make body-worn and in-car camera recordings publicly available to the maximum extent allowable under Missouri law and consistent with individual privacy rights.
D. Ongoing Assessment and Improvement 250. Within 180 days of the Effective Date, the City and FPD will develop protocols for regularly, and at least annually, conducting cost-feasible data-driven and qualitative assessments of body-worn and in-car camera use. These assessments will be designed to ensure that FPD officers are using body-worn and in-car cameras in a manner that increases transparency and accountability, and that FPD is using body-worn and in-car cameras as training and officer safety tools. Assessments will include review of use of cameras for training purposes; any failures to use recording equipment in accordance with policy; and data regarding recording equipment deficiencies or malfunctions. As part of this assessment process, the City Manager and Chief of Police will identify deficiencies and opportunities for improvement; implement appropriate corrective action and improvement measures; and document measures taken.
XIII. SUPERVISION 251. First line supervisors and FPD command staff play a critical role in ensuring lawful, effective, and community-centered policing. The City will ensure that FPD supervisors provide the oversight and guidance necessary for officers to police lawfully, safely, and effectively; establish and enforce a culture of community policing throughout the Department; and prevent, identify, and correct misconduct. A. Supervisory Character and Duties 252. FPD supervisors shall model appropriate conduct, including abiding by the highest standards of integrity; strictly adhering to the Constitution and other laws, FPD policy, and the terms of this Agreement; and consistently demonstrating professionalism, courtesy, and respect towards all people with whom they interact. All individuals selected to serve in a supervisory capacity shall have a demonstrated record of conducting themselves in a manner that is consistent with these standards. Individuals who have misconduct allegation(s) pending, or
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who have had a Class 1 misconduct allegation sustained within the previous 12 months, shall be presumptively ineligible to be promoted to supervisor.
253. FPD supervisors shall provide close and effective supervision and accordingly shall: (a) establish and enforce throughout the department the expectation that officers will police in a manner that is consistent with the Constitution and other laws, FPD policy, and community policing principles; (b) provide leadership, counseling, direction, and support to officers as needed; (c) lead efforts to engage individuals and groups and ensure that officers are working actively to engage the community and increase public trust; (d) respond to, document, review, and investigate stops, searches, citations, arrests, uses of force, and other officer conduct as required by policy and this Agreement; (e) identify misconduct and ensure that it is adequately addressed through corrective action, training, or discipline; and (f) identify training and professional development needs and opportunities on an individual, squad, and department-wide level.
254. FPD supervisors shall document the performance of their supervisory duties in FPD’s records management system or the Early Intervention System, as appropriate. Supervisors shall be required to document, at a minimum:
a. All disciplinary referrals and non-disciplinary counseling; b. All actions taken to ensure officers are performing community outreach, working
to build public trust, and otherwise engaging in community policing; c. All occasions where supervisors respond to the scene as required by policy; d. All reviews of officer conduct, including reviews of use of force and other reports
as required by policy and this Agreement; and e. Any training or professional development needs supervisors identify, as well as
the specific actions taken in response to those needs. 255. Supervisors will be held accountable for the quality and effectiveness of the supervision they provide. Supervisors’ performance evaluations and promotions will be based upon the fulfillment of supervisory duties. The failure to fulfill supervisory duties will result in corrective action, training, or discipline, as deemed appropriate by the Chief of Police. B. Supervisor Staffing and Officer Assignment to Supervisors
256. Within 180 days of the Effective Date, the City agrees to develop and implement a staffing plan that enables close and effective supervision. This staffing plan will be developed
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in consultation with the Monitor, consistent with best practices and the requirements of this Agreement, and subject to the approval of DOJ.
257. The City will have an adequate number of captains and lieutenants to ensure close and effective supervision of first line supervisors, and an adequate number of first line supervisors to allow for close and effective supervision of officers. On-duty first line patrol supervisors shall be available throughout their shift to respond to the field to provide supervision to officers under their direct command and, as needed, to provide supervisory assistance to other units.
258. The City will ensure that all FPD officers are assigned to supervisors in a manner that provides consistency in policing practices from shift to shift and among geographic areas in the City. The City will assign enough sergeants so that the span of control in the field for sergeants is no more than eight officers. Officers should work with no more than three supervisors who will be responsible for evaluating a group of officers they consistently supervise based on supervisor observations and data on officer performance. Data on officer performance and activity must be developed that can be used by sergeants to measure officer performance.
C. Early Intervention System 259. Within one year of the Effective Date, the City will purchase, install, train FPD supervisors on, and implement an Early Intervention System (EIS) that is consistent with this Agreement. The EIS will be designed to serve as a management tool that promotes supervisory awareness and proactive identification of potentially problematic behavior among officers, and ensures the delivery of individualized interventions to correct identified problematic or potentially problematic officer behavior. 260. The EIS will include a computerized relational database that will be used to collect, maintain, integrate, and retrieve department-wide data, as well as data for each officer. In consultation with the Monitor and to be approved by DOJ, the City will develop policies setting forth in detail the specific information that the EIS will capture, as well as data storage, data retrieval, reporting, data analysis, pattern identification, supervisory use, supervisory/departmental intervention, documentation, audits, access to the system, and confidentiality of personally identifiable information.
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261. The City may either enhance its current data management system or contract with another qualified service provider to implement the EIS relational database. The parties agree that the City will procure a satisfactory system to fulfill the requirements of the EIS.
262. The EIS relational database will capture all information necessary to ensure supervisory awareness and the early identification of problematic individual and departmentwide conduct. Among the information captured will be: (a) all uses of force; (b) all injuries and deaths to persons in custody; (c) all instances in which force is used and a subject is charged with Failure to Comply, Resisting Arrest, Assaulting an Officer, Disorderly Conduct, or similar charges; (d) all instances in which an officer issues three or more citations during a single encounter; (e) violations of FPD's body-worn and in-car camera policies; (f) all instances in which FPD learns that a declination to prosecute any crime or municipal code violation was based upon concerns of the Prosecutor about an officer's credibility or that a motion to suppress evidence was granted on the grounds of a constitutional violation by an FPD officer; (g) all misconduct complaints, including the disposition of each allegation; (h) judicial proceedings where an officer is the subject of a Full Order of Protection or other restraining order, which officers shall be required to report; (i) all criminal proceedings initiated against an officer, as well as all civil or administrative claims filed with or against the City or its agents that result from the actions of FPD personnel; (j) all disciplinary action taken against employees; (k) all non-disciplinary corrective action required of employees; (l) all awards and commendations received by employees, including those received from civilians; (m) sick leave usage, especially in concert with regular days off and holidays; and (n) training history for each officer. The EIS will include appropriate identifying information for each involved employee (e.g., name, badge number, shift, and supervisor if known) and demographic information regarding each civilian (e.g., protected characteristics).
263. All required information shall be entered into the EIS database in a timely, accurate, and complete manner by those FPD supervisors and other responsible individuals. All information captured within the EIS database will be organized and accessible in a manner that facilitates supervisory awareness and the early identification of problematic individual and department-wide conduct.
264. The EIS will allow for and require close monitoring of officer conduct, including peer-group comparisons between officers with similar assignments and duties. FPD will set and
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implement threshold levels for each EIS indicator which, when reached, will trigger supervisory review. The City will ensure that once a review of a particular officer has been triggered as a result of a particular threshold, each subsequent event involving the same indicator will trigger supervisory review. The Monitor and DOJ will review and approve the EIS threshold levels. In addition to using threshold indicators that trigger mandatory supervisory review, the City will ensure that FPD command staff and other supervisors regularly review EIS data to evaluate the performance of officers across all ranks, units, and shifts.
265. The City will ensure that FPD command staff collect and, at least quarterly, analyze EIS information related to supervisor, squad, and officer trends.
266. The City will ensure that FPD first line supervisors and Lieutenants review EIS data for all officers under their direct command at least monthly, and whenever an employee first comes under their supervision. At least quarterly, supervisors will review broader, pattern-based reports.
267. Within one year of the Effective Date, FPD will retain or internally develop the expertise necessary to implement individualized interventions to respond to identified problematic or potentially problematic officer conduct. Non-disciplinary interventions in response to threshold triggers and other identified areas of concern will be timely implemented and designed to assist officers in avoiding or correcting potentially problematic behavior. All interventions will be documented in writing and entered into the EIS. FPD will review, evaluate, and document in writing the progress and effectiveness of the intervention strategy.
268. The City will properly maintain all necessary equipment and software sufficient to permit implementation, maintenance, and use of the EIS as set out in this Agreement and FPD policy. The City will maintain all officer specific information in the EIS for at least one year following the officer's separation from FPD, unless prohibited by law. Information necessary for non-individual aggregate statistical analyses will be maintained indefinitely.
269. In addition to providing training to supervisors and others directly responsible for using the EIS as required in Section XVII.J, the City will also ensure that all FPD employees are provided with information regarding the scope and function of the EIS within 60 days of its implementation.
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D. Ongoing Assessment and Improvement 270. Within 180 days of the Effective Date, the City and FPD will develop protocols for regularly, and at least annually, conducting cost-feasible data-driven and qualitative assessments to ensure that FPD officers are being closely and effectively supervised, and that supervisors are conducting themselves with integrity and are consistently performing the supervisory duties required by FPD policy. As part of this assessment process, the City and FPD will identify deficiencies and opportunities for improvement; implement appropriate corrective action and improvement measures, including training or staffing adjustments; and document measures taken.
XIV. OFFICER ASSISTANCE AND SUPPORT 271. Physical and mental wellness has a direct impact on officers’ ability to perform their jobs safely, constitutionally, and effectively. Fatigue and stress impact health, judgment, and performance and can thus negatively impact officer well-being. Recognizing these dynamics, and the pressures of being a law enforcement officer generally, the City will continue its officer assistance and support efforts to support officer resilience and their physical and emotional health and will provide officers with resources to maintain their physical and mental health by implementing the paragraphs below. A. Support Services for Officers and Their Families 272. The City currently provides an Employee Assistance Program (EAP) to city employees, including police officers, which allows access to no- or low-cost counseling and mental wellness services including: confidential counseling services; crisis counseling; stress management counseling; and mental health evaluations. The City will continue to provide the current EAP, or a similar program, to FPD officers. The City will review this program to ensure that it comports with best practices and current professional standards. 273. The City will compile, periodically review and revise as necessary, and maintain a list of mental and physical health service providers available as part of the EAP to all officers and employees. 274. Mental health counseling services provided to FPD employees will remain confidential in accordance with federal law and generally accepted practices in the field of mental health care.
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275. The City will require and specify a mental health evaluation before returning an officer to full duty from administrative or desk duty following a traumatic incident (e.g., serious injury, officer-involved shooting, officer-involved accident involving fatality, or all other uses of force resulting in death or serious injury) and as directed by the Chief of Police or the Director of Human Resources.
276. Officers shall not be permitted to work more than 14 hours per day or 64 hours per week, except under exigent circumstances, such as natural disaster, public demonstrations, or periods of civil unrest, during which rest and recovery periods shall be in keeping with relevant protocols, as set out below.
277. FPD officers will continue to have access to fitness equipment, free of charge, at Ferguson’s Firehouse Number 1 or at the Ferguson community center, as long as the City retains control over such buildings.
278. The City currently contracts with an identity fraud service for City employees. The City will continue to contract for the services that it currently provides, or similar services, and may require employees to pay the applicable charge for such services.
B. Officer Support During Public Demonstrations and Periods of Civil Unrest
279. The City will develop well-being protocols to be activated during officer deployments during public demonstrations or civil unrest. These protocols will include:
a. Close monitoring and periodic affirmative checks of officers’ well-being by supervisors;
b. Availability of mental health and medical professional(s) to monitor officers and diagnose potential health issues;
c. Inclusion of health and safety guidance during pre-deployment briefings; d. Close monitoring of officer fatigue and indications of stressors; e. Implementation of measures to ensure that officers are given adequate time off to
rest and recover; f. Guidance for responding to threats to officers or their families that are extreme,
immediate, and credible; and g. During prolonged periods of demonstrations or unrest, the deployment of police
counselors or psychologists to provide individual counseling to officers and their family members.
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C. Ongoing Assessment and Improvement 280. Within 180 days of the Effective Date, the City Manager and Chief of Police will develop cost-feasible protocols for regularly, and at least annually, assessing FPD's officer assistance and support programs to ensure the City is providing officers with support to maintain their physical and mental health. As part of this assessment process, the City Manager and Chief of Police will identify deficiencies and opportunities for improvement; implement appropriate corrective action and improvement measures; and document measures taken.
XV. RECRUITMENT 281. Transforming FPD into a law enforcement agency that has the confidence of the entire Ferguson community and that consistently polices effectively and constitutionally requires that the City retain a diverse workforce of highly qualified officers. Highly qualified officers are those who have respect for and knowledge of law; a keen sense of integrity and ethics; are skilled communicators and problem-solvers; are slow to lose their temper; and who have a service mentality alongside courage, initiative, common sense, humility and civility. A broad range of diversity throughout the ranks of the Department—such as diversity in life experience, cultural background, race, ethnicity, gender, sexual orientation, and language—fosters the highquality policing described above and is critical to improving understanding and effectiveness in dealing with all communities. Given recent events, many potential law enforcement officers may not recognize the opportunity that working on the Ferguson police force provides. The City and FPD therefore must make greater effort than would many municipalities and police departments to attract and retain this high-quality, diverse workforce. The recruitment requirements set out below are intended to continue to ensure these efforts. A. Recruitment Plan 282. Within 180 days of the Effective Date, the City agrees to develop, in consultation with the Neighborhood Policing Steering Committee, once established, a written Recruitment Plan that includes clear goals, objectives, and action steps for attracting and retaining a highquality and diverse work force with the attributes described in paragraph 281 above. The Recruitment Plan will be consistent with best practices and subject to the approval of the Monitor and DOJ.
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283. The City agrees that the Recruitment Plan will, at a minimum, require the following:
a. That the City will offer salaries that will place FPD among the most competitive similarly sized agencies in St. Louis County;
b. Affirmative recruitment outreach to a broad spectrum of community stakeholders, including community meetings in each Ward regarding recruitment, and outreach to local colleges, high schools, criminal justice students, and members of the military;
c. Broad distribution of recruitment information, including information regarding career opportunities, the Academy Assistance Program, compensation, the testing and hiring process, and applicable deadlines and requirements. Such information will, at a minimum, be readily accessible on City and FPD websites and available upon request to City or FPD officials;
d. That candidates be allowed to submit initial applications online to the Director of Human Resources;
e. That an associate’s degree or higher or military service with separation under honorable conditions or any service-connected disability where, with or without reasonable accommodations, the individual can perform the essential functions of the job, will be positive factors in hiring for open FPD positions; and
f. Opportunities for officers, civilians, and members of City government to assist the City’s efforts to attract a broad spectrum of highly-qualified applicants.
284. The City will implement the Recruitment Plan within 60 days of its being approved. The Chief of Police will articulate the requirements to rank and file officers, and the City Manager, in consultation with the Chief of Police, will revise the plan annually, in consultation with the Monitor and DOJ.
285. Within 120 days of the Effective Date, the City will conduct an in-depth review of its current hiring processes and hiring criteria to ensure that no process, criterion, or requirement has a statistically significant disparate impact on members of a protected group. If the City determines that any step in the hiring process may result in a disparate impact based on protected characteristics, the City will determine whether there are alternative selection procedures
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available that would select equally highly-qualified candidates while having less of a disparate impact and if there are, will implement those alternative selection procedures.
B. Ferguson Police Department Academy Assistance Program
286. The City agrees to continue the FPD Academy Assistance Program to seek qualified, local candidates to serve as police officers.
287. The FPD Academy Assistance Program will continue to be available to any individual eligible to attend the St. Louis County and Municipal Police Academy (“Academy”), with a preference for Ferguson residents, low-income individuals, and graduates of the FergusonFlorissant School District, Hazelwood School District, or Riverview Gardens School District. The City agrees to continue its Academy Assistance Program which provides:
a. One candidate will be selected every year to apply to the Academy as an Open Enrollment Recruit;
b. That the program will cover costs associated with applying to and attending the Academy as an Open Enrollment Recruit, and will allow the recipient to work for the City of Ferguson during which time he/she will receive the same employee benefits as other similarly-situated employees; and
c. Recipients will not have to repay the amount of the assistance after completing three years of service as a full-time Ferguson Police Officer.
C. Background Investigation and Screening System
288. The City agrees to the following background investigation and screening protocol for hiring of sworn police officers and shall implement such protocols within 90 days of the Effective Date. These protocols will require:
a. A full psychological screening of candidates who are selected for conditional offers of employment by an appropriately qualified and trained psychiatrist or psychologist;
b. A full background investigation that includes a check of police records, education, employment, military history, credit history, and driving records;
c. A review of personnel files from candidates’ previous employment, unless the City is unable to obtain such files after making all reasonable efforts, and a requirement that FPD seek to speak with the candidates’ previous supervisor(s);
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requesting a candidate’s history of using lethal and less lethal force, use-of-force training records, and complaint history if a candidate has previous law enforcement experience; e. A polygraph or other comparable test of candidates who are selected for conditional offers of employment; f. Contacting the Missouri Peace Officers Standards and Training (POST) program to review the license status and any known disciplinary history of potential hires before making an offer of employment; g. Checking the National Decertification Index (NDI) administered by the International Association of Directors of Law Enforcement Standards and Training (IADLEST); h. Determining whether the candidate has been named in a civil action in either St. Louis County and/or in the County where the officer lives (and elsewhere as feasible), including by checking Case.net, and evaluating the relevancy of the legal action; and i. Implementing validated pre-employment screening mechanisms to ensure temperament and skill-set suitability for policing. 289. The background investigation and screening need not be completed for candidates whose applications do not meet the minimum criteria, or for candidates who do not advance beyond the initial interview. The background investigation and screening information will be documented and maintained with the candidate’s employment application. Consistent with its obligations to review hiring processes to ensure they do not have a statistically significant disparate impact on a protected group, the City will ensure that the decision to exclude an applicant following the background investigation is documented and independently reviewed by the Director of Human Resources. D. Ongoing Assessment and Improvement
290. Within 180 days of the Effective Date, the City and FPD will develop protocols for regularly, and at least annually, conducting cost-feasible data-driven and qualitative assessments of its recruitment efforts. These assessments will be designed to ensure that FPD’s recruitment practices are achieving the objective of retaining a diverse workforce of highlyqualified officers. Assessments will include review of application and hiring information;
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analysis of participation in FPD's Academy Assistance programs, particularly among communities of color; and review of the background investigation system, including applications rejected on account of the background investigation. As part of this assessment process, the City and FPD will identify deficiencies and opportunities for improvement; implement appropriate corrective action and improvement measures; and document measures taken.
XVI. PERFORMANCE EVALUATIONS AND PROMOTIONS 291. The City agrees to ensure its policies for performance evaluations and promotions support and recognize officers who police effectively, lawfully, and ethically. The City will revise its policies to achieve such goals. The City further agrees to ensure that poor performance, inappropriate conduct, or conduct that otherwise undermines officer or public safety and community trust is reflected in officer evaluations and promotion decisions. A. Performance Evaluations 292. Within 240 days, the City will ensure its performance evaluation system is consistent with best practices to recognize and promote the importance of community engagement, problem-solving efforts, and community trust building. The City will revise its relevant policies to achieve this goal. Performance evaluations will identify areas where officers have excelled and areas that require further training and supervision to improve officer performance and place them in a position to advance their careers, public safety, and communitypolice relationships. 293. As part of this revised performance evaluation system, the City will use a formalized system documenting annual performance evaluations of each officer, and quarterly evaluations for probationary employees, by the officer’s direct supervisor. When evaluating officer performance, FPD supervisors shall consider an officer’s demonstrated integrity and ethical decision making; success at implementing community policing and bias-free policing principles; success at implementing de-escalation strategies and tactical retreat, or otherwise safely avoiding using force or using less force than they could have under the law; and additional factors, including:
a. Communication and decision-making skills; b. Civilian commendations and “sustained” and “not sustained” complaints; c. Disciplinary actions;
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d. The quality and accuracy of officer reports, search warrants, and supportive affidavits or declarations; and
e. Creativity and innovation. 294. Performance evaluations will include a written discussion by the supervisor of any areas in which the officer’s performance needs to improve, and areas of particular growth and achievement during the rating period. As part of the annual performance review process, supervisors shall meet with the employee whose performance is being evaluated to discuss the evaluation. 295. FPD will use informal and formal reward systems to recognize and promote constitutional policing and effective community engagement. 296. Supervisors will meet with their subordinates on an ongoing basis to discuss their performance and will document the supervisor’s ongoing efforts and communications regarding officer performance challenges and areas of growth. 297. Performance evaluations for each supervisor (whether first-line or commander) will include assessment of the supervisor’s ability and effectiveness in conducting the supervisory reviews as required by this Agreement, including monitoring, deterring, and addressing misconduct by officers they supervise. Supervisors who fail to adhere to FPD policy regarding supervision of voluntary encounters, stops and detentions, searches, citations, and arrests—or who conduct inconsistent or low-quality review of such police activity—will be subject to discipline, including, but not limited to, demotion. B. Promotions
298. Within 240 days of the Effective Date, the City agrees to ensure its promotional systems comport with best practices and establish clear criteria that prioritize effective, constitutional, and community-oriented policing as factors in promotion.
299. The City agrees to develop a promotional assessment process in which candidates for promotion participate in a series of systematic, job-related, realistic scenarios observed and reviewed by experts, in areas including, but not limited to, community-oriented policing, neighborhood problem solving, crisis management and de-escalation, supervision, and management. Factors to be considered in making promotional decisions will include, but not be limited to:
a. Demonstrated integrity and ethical decision-making;
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b. Demonstrated commitment to community engagement, and effective use of community-policing and neighborhood problem-solving strategies;
c. Demonstrated commitment to bias-free policing; d. Effective use of de-escalation and crisis management techniques; e. Number and circumstances of uses of force, including any found out-of-policy; f. Disciplinary and complaint history; g. Communication and interpersonal skills; h. Education; i. Creative and innovative work; j. Whether the officer has served as a Police Training Officer or in another capacity
as a trainer within FPD; k. The quality and accuracy of officer reports, search warrants, and supportive
affidavits or declarations; and l. Demonstrated recognition that success of officer activity is reflected by crime
prevention and investigation, increased community trust, and public safety. 300. The City agrees to develop and use specific criteria regarding the impact of findings of misconduct on promotional eligibility. Officers with pending investigation(s) or disciplinary action in a matter alleging serious misconduct will be presumptively ineligible for promotion until such investigation(s) and/or action(s) are concluded. 301. Supervisors who conduct high-quality review and supervision will receive preference for assignments and promotion. C. Ongoing Assessment and Improvement
302. Within 180 days of the Effective Date, the City Manager and Chief of Police will develop protocols for at least annually conducting cost-feasible data-driven and qualitative assessments of FPD's promotional and performance evaluation practices. These assessments will be designed to ensure that officers who police effectively, lawfully, and ethically are recognized, and that the performance of officers who engage in conduct that undermines public trust or otherwise perform poorly is accurately reflected in evaluations. Assessments will include reviews of performance guidelines and performance evaluations conducted by supervisors, as well as the collection and assessment of feedback from FPD officers. As part of this assessment process, the City Manager and Chief of Police will identify deficiencies and opportunities for
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improvement; implement appropriate corrective action and improvement measures; and document measures taken.
XVII. SUPPLEMENTAL RECRUIT AND IN-SERVICE TRAINING 303. To ensure that officers have the knowledge and skills to police constitutionally and carry out the requirements of this Agreement, the City agrees to provide and require the training set out below for each of the substantive areas of this Agreement. The training below will be provided in accordance with the requirements set out in Section V above. 304. Unless otherwise noted, the City agrees to provide the training set out below within two years of the Effective Date of this Agreement. A. Information Regarding this Agreement 305. The City will ensure that, within 60 days of the Effective Date, the requirements of this Agreement are explained to all FPD and Court officers, and officers and employees are provided the opportunity to raise questions or concerns regarding the Agreement and their obligations pursuant to it. B. Community Policing, Critical Thinking, and Problem-Solving Policing
Training 306. The City agrees to provide FPD officers initial and ongoing annual in-service training on community and problem-solving policing, critical thinking, and communication skills, for all current and new FPD sworn employees. This training will include:
a. Methods and strategies to improve public safety and prevent crime through problem-solving techniques;
b. Effective communications skills, including how to recognize and overcome communication obstacles (such training may include Tact, Tactics, and Trust (or “T3” training));
c. Critical thinking, leadership, ethics, social intelligence, and interpersonal skills, such as the “Blue Courage” training;
d. Community engagement techniques, including how to establish formal partnerships and actively engage community organizations and diverse groups within the community to form positive relationships;
e. Policing in accordance with the concepts of procedural justice, fairness, and
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legitimacy; f. How to promote and facilitate use of FPD’s Community Mediation Program; and g. Conflict resolution and verbal de-escalation of conflict. C. Training to Promote Bias-Free Policing
307. The City agrees to provide FPD and court employees initial and ongoing annual in-service training related to bias in policing to provide officers and court employees the knowledge and skills to identify bias and minimize its impact upon law enforcement activities and interactions with members of the public. This training will include:
a. Methods and strategies for more effective policing that rely upon nondiscriminatory factors, including problem-oriented policing strategies;
b. Identification of key decision points where prohibited discrimination can take effect at both the incident and strategic-planning levels, and self-evaluation;
c. Constitutional and other legal requirements related to equal protection and unlawful discrimination, including the requirements of this Agreement;
d. The protection of civil rights as a central part of the police mission and as essential to effective policing;
e. The existence and impact of stereotyping and implicit or subconscious bias on officer decision-making and public interactions; and
f. Cultural competency, cultural awareness, and sensitivity, including the impact of historical trauma on current police-community interactions.
D. Stop, Search, and Arrest Training
308. The City agrees to provide officers with initial and ongoing annual in-service training on voluntary encounters, stops/detentions, searches, citations, and arrests, including the requirements of this Agreement. Where appropriate, training will be taught by a competent legal instructor with significance experience with Fourth Amendment issues, and will:
a. Address Fourth Amendment and related law, FPD policies, and requirements in this Agreement concerning searches and seizures;
b. Address the differences between various police contacts by the scope and level of police intrusion; differences between probable cause, reasonable suspicion, and mere speculation; and truly voluntary and consensual encounters;
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limitations, that should be considered in initiating, conducting, terminating, and expanding a stop or search; d. Incorporate role playing scenarios and other adult-learning mechanisms to facilitate officer ability to exercise good judgment about whether and how to conduct searches or frisks; e. Provide guidance on stopping and searching people for discretionary and nonviolent offenses, including providing guidance about procedural justice, alternatives to conducting investigatory stops and searches, and the impact on civilians of conducting apparently arbitrary stops and searches; and f. Provide instruction on how to collect the pedestrian and vehicle stop data required by this Agreement. E. First Amendment Training
309. The City agrees to provide to all FPD officers initial and ongoing annual inservice training regarding First Amendment protected activity, appropriate police responses to the exercise of such activity, and common pitfalls and oversteps in responding to such activity. This training will also address policing public demonstrations and crowd control. This training may overlap with training on Stop, Search, and Arrest, and on Use of Force. Officers will also be trained on protocols for obtaining supervisory approval for seizures, searches, citations, and arrests and other significant police actions that result from First Amendment related activity.
F. Use-of-Force Training
310. The City agrees to provide FPD officers initial and ongoing annual in-service useof-force training. This training will include:
a. Fourth Amendment and other relevant law, FPD policy, and the requirements of this Agreement related to force;
b. Use-of-force reporting requirements; c. Proper use-of-force decisionmaking, illustrated through role-playing scenarios
and interactive sessions; d. De-escalation techniques, both verbal and tactical, that empower officers to make
arrests without using force and instruction that disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements, using cover, calling in specialized units, tactical disengagement, or delaying arrest may be the
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appropriate response to a situation, even when the use of force would be legally justified; e. Principles of procedural justice, and avoiding the use of force in response to minor resistance; f. Proper threat assessment, including how implicit racial and gender bias can impact officers’ threat assessments; g. Recognizing failures to comply based on a medical or mental condition, physical or hearing impairment, language barrier, drug interaction, or emotional crisis, and how to respond without force to persons in those situations; h. The duty to safely intervene when another officer is using force that is unnecessary or objectively unreasonable, how to do so safely, and how to prevent or stop a peer’s unreasonable force; i. Firearms training, including: firearm use at night or with reduced light; stress training; the proper techniques for unholstering, displaying, pointing, and aiming a firearm, and for determining when it is appropriate to do so; j. The proper use of ECWs, including:
1. The importance that all officers view and use ECWs as a tool of necessity, not convenience, consistent with best practices and this Agreement;
2. Training on ECW display in combination with verbal commands to avoid force;
3. The risks of prolonged or repeated ECW exposure, including that the application for more than three cycles or 15 seconds (whether due to multiple applications or continuous cycling) may increase the risk of death or serious physical injury;
4. The increased risks that ECWs may present for a subject who is pregnant, elderly, a child, frail, a person of low body mass, or in medical or mental health crisis; and
5. Disadvantages of drive-stun mode, including lack of effectiveness, ease of abuse, and tendency to escalate encounters.
k. Canine handlers will participate in canine and canine handler training every four weeks.
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311. FPD agrees to train dispatchers on force-related topics, including but not limited to the following:
a. Understanding the force review process, to ensure that supervisors are notified of all uses of force;
b. Knowing when to contact emergency medical personnel in use-of-force incidents; and
c. Assisting supervisors to ensure that use-of-force reporting is accurate and complete by providing information about which officers were on the scene, who may have called 911, and other relevant facts.
G. Crisis Intervention Training
312. The City agrees to provide all officers and recruits with initial and ongoing annual in-service on responding to individuals in crisis. The initial and annual training will address the circumstances in which a specialized Crisis Intervention Training (CIT) officer should be dispatched or consulted, and how situations involving individuals in crisis should be addressed if a specialized CIT officer is not immediately available.
313. In addition to providing crisis intervention training to every FPD officer, the City agrees to provide 40 hours of initial specialized CIT training, and eight hours of annual specialized training thereafter, to CIT officers. The training will include how to conduct a field evaluation, suicide intervention, community mental health resources, common mental health diagnoses, the effects of drug and alcohol abuse, perspectives of individuals with mental illness and their family members, the rights of persons with mental illness, civil commitment criteria, crisis de-escalation, and scenario-based exercises. The training will include on-site visitation to mental health and substance abuse facilities and interaction with individuals with mental illness and substance abuse disorders.
314. Within 180 days of the Effective Date, and annually thereafter, all FPD calltakers, dispatchers, and their supervisors will receive crisis intervention telecommunicators training that is adequate to enable them to identify, dispatch, and appropriately respond to calls for service that involve individuals in crisis.
H. School Resource Officer Training
315. The City agrees to provide School Resource Officers with initial and ongoing annual in-service training on: working with youth, including youth-specific de-escalation
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techniques and conflict resolution; child and adolescent brain development; age-appropriate responses to youth conduct; awareness of impact of mental illness and trauma on youth; practices proven to improve school climate; mentoring, counseling, and classroom presentation skills; working with children with disabilities; non-involvement of SROs in school discipline; working collaboratively with school administrators; and the consequences of student involvement in the criminal and juvenile justice systems.
I. Body-Worn and In-Car Camera Training
316. The City agrees to provide initial and ongoing annual in-service training for all FPD sworn employees regarding body-worn and in-car camera equipment. The City agrees to ensure that all FPD members who will be using body-worn and in-car camera equipment or reviewing body-worn and in-car camera recordings will be properly trained within 180 days of the Agreement. Training will be sufficiently adequate in quality, quantity, type, and scope to ensure FPD members properly use and maintain recording equipment and that FPD members ensure proper organization, maintenance, and public access to recordings to the extent allowable under state law and appropriate in light of privacy considerations.
J. Supervisor Training
317. The City agrees to develop and implement a supervisory training course for all new and current supervisors, including commanders. This training will specifically train supervisors to carry out all supervisory duties established in policy and this Agreement, and provide specific instruction, including scenario-based instruction, on methods for ensuring supervisory duties are fulfilled, including:
a. Applicable legal requirements sufficient to properly guide officer conduct; b. How to evaluate and document officer performance; c. How to conduct use-of-force investigations, including instruction in ensuring
appropriate response to use-of-force incidents and instruction in investigative techniques; d. How to conduct misconduct investigations, including specific instruction in investigative techniques; data and case management; the particular challenges of administrative police misconduct investigations, including identifying alleged misconduct that is not clearly stated in the complaint or that becomes apparent during the investigation; and the proper application of the preponderance of the
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evidence standard; e. How to appropriately and meaningfully use, access, review and incorporate into
training body-worn and in-car cameras; f. How to appropriately use the Early Intervention System as a supervisory
management tool. At a minimum, all supervisors, including commanders, will be trained to evaluate and make appropriate comparisons in order to identify any significant individual or group patterns; understand and utilize the range of nonpunitive corrective action they can take to modify officers’ behavior and improve performance; manage risk and liability; promote constitutional policing; and address underlying stressors to promote officer well-being; g. How to identify biased police practices when reviewing investigatory stop, arrest, and use-of-force data; and h. How to evaluate complaints of improper stops, searches, and arrests for potential biased police practices. 318. All supervisory training set forth in policy and this Agreement will be sufficiently adequate in quality, quantity, type, and scope to ensure close and effective supervision. FPD officers will receive supervisory training prior to assuming a supervisory rank. FPD supervisors will receive supervisory in-service training. K. Officer Wellness Training 319. The City agrees to provide initial and ongoing annual in-service training to all FPD officers on identifying and managing mental health stressors related to law enforcement; the connection between officer mental and physical well-being and officer safety, judgment, and performance; the link between mental and physical well-being; and how to access available physical and mental well-being services. The City agrees to involve qualified mental health professionals in developing and providing this training and to provide similar training to officers’ families. 320. The City will support regular workshops for FPD officers on issues including officer safety, mental and physical health and illnesses, physical fitness, and nutrition. The City agrees to reach out to medical and public health partners for existing programs or search local and state health departments’ for available resources and training programs.
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321. The City agrees to provide initial and in-service training for supervisors and officers to assist them in identifying and effectively assisting other officers who are under severe stress or otherwise in need of assistance.
L. Accountability Training 322. The City agrees to provide initial and ongoing annual in-service training to all FPD and court employees on:
a. How to properly handle complaint intake, including how to provide complaint materials and information; the consequences for discouraging misconduct complaints or otherwise failing to properly accept complaints; and strategies for turning the complaint process into a positive police-civilian interaction; and
b. Employees’ specific responsibilities regarding the duty to identify and report misconduct, as well as the duty to fully cooperate with all misconduct investigations.
XVIII. MUNICIPAL COURT REFORM 323. To ensure that the Ferguson Municipal Code is enforced for the purpose of protecting public safety, and to enable the fair and impartial resolution of municipal charges, the City agrees to implement the requirements set forth below. A. Ensuring that Municipal Code Enforcement is Driven by Public Safety 324. As required by state law, the City agrees to ensure full compliance with the cap placed on revenue from municipal fines and fees codified within Senate Bill 5, as well as all other provisions of that statute. See Senate Bill 5, codified at Mo. Rev. Stat. § 479.350 et.seq. The City agrees to provide DOJ and the Monitor access to all data, information, and analysis used to complete and submit the City’s compliance reports required by that statute. The City further agrees to maintain Municipal Code Ordinance 2014-3565. 325. Within 60 days of the Effective Date, the City will remove the Ferguson Municipal Court from the oversight of the City Finance Director and ensure the Finance Director has no involvement in court operations. Consistent with Missouri law, the Ferguson Municipal Court will report directly to the St. Louis County Circuit Court and Missouri Supreme Court. Where coordination with City officials is required for administrative purposes, members of the Ferguson Municipal Court will report directly to the City Manager.
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B. Comprehensive Amnesty Program
326. The City agrees to implement a comprehensive amnesty program immediately upon entering this Agreement that, at a minimum, incorporates the following measures:
a. Prosecution will be declined in all open cases not yet adjudicated that were initiated prior to January 1, 2014, and all warrants associated with those cases will be eliminated, except where the prosecutor finds good cause to continue prosecution, in which case the City may continue to prosecute the case and maintain the municipal arrest warrant consistent with the terms of this Agreement;
b. To the extent that it has not already done so, the City will eliminate all pending charges, fines, and fees related to Failure to Appear violations (previously imposed pursuant to Ferguson Municipal Code § 13-58) without requiring a defendant to make a bond payment, appear in court, or take any other action;
c. To the extent that it has not already done so, the City will, without requiring a defendant to make a bond payment, appear in court, or take any other action, eliminate all pending fines and fees imposed pursuant to: 1. Ferguson Municipal Code § 13-60 (authorizing fee of up to $75 plus court costs when an individual withdraws a complaint that resulted in a violation being issued); 2. Ferguson Municipal Code § 13-63 (authorizing special deterrent fees as part of parole and probation); 3. Ferguson Municipal Code § 13-70(2) and (3) (authorizing fees for continuing court proceedings, issuing and serving warrants, mileage, and witness fees); 4. Ferguson Municipal Code § 44-50 (authorizing city-imposed towing fees); and
d. In all cases in which a defendant has made total payments that exceed the amount of the initial fines and fees imposed for a municipal ordinance violation, including payments for associated failure to appear violations, the City will recommend that all fines are stayed and the case closed, with no further collections. The City will provide this amnesty without requiring a defendant to make a bond payment, appear in court, or take any other action. In all cases where payments have already been made that do not total or exceed the amount of the original fine,
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including payments for associated failure to appear violations, the City will recommend lowering the fine and fee debts owed to the amount of the initial fines and fees imposed, less any form of payment already made by the defendant. 327. The City agrees to complete implementation of the comprehensive amnesty program within 30 days of the Effective Date, including the elimination of all relevant charges, fines and fees from pending case files as set forth above. The City agrees not to execute any municipal arrest warrant or collect any fines or fees identified above while it is implementing the comprehensive amnesty program. C. Revision of Ferguson Municipal Court Practices 328. Within 90 days of the Effective Date, the City will develop and implement all necessary ordinances and policies to ensure that the practices of the Ferguson Municipal Court are grounded in the fair administration of justice and comport with all constitutional and other legal requirements. Such ordinances and policies will incorporate the requirements set forth below.
1. Increasing Transparency of Court Operations 329. The City agrees to make public through a variety of means—including prominent display on the City website—a clear and accurate description of the municipal court payment process, including information regarding: any pre-established fines and fees; a person’s court obligations once they are charged with a municipal ordinance violation; a person’s rights and responsibilities for challenging a charge; payment and community service options; how to seek an ability-to-pay determination; and the potential consequences for non-payment or missed court dates. 330. The City will develop and implement a plan for a public education campaign aimed at providing members of the broader Ferguson community with accurate and complete information regarding the operations of the Ferguson Municipal Court. The public education campaign will include specific measures to inform the public that appearing in court without being able to pay pending fines or fees will not result in arrest or jail time. 331. The City agrees to make information broadly available, including on the City’s website, regarding cost-free legal assistance that may be available to individuals with pending municipal charges.
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2. Ensuring Adequate Notice 332. The City agrees to provide all individuals charged with a violation of the Ferguson Municipal Code with adequate and reliable information regarding the charges brought against them, the options and requirements for resolving the charges, and the consequences for failing to resolve the charges in a timely matter. 333. The City will ensure that all citations, summonses, arrest notification forms, and other charging documents used by FPD contain (or at a minimum are contemporaneously supplemented with a separate document that contains) clear and detailed information regarding the recipient’s rights and responsibilities. Such information will include:
a. The specific municipal violation charged; b. The recipient’s options for addressing the charge, including whether in-person
appearance is required or if alternative methods, including online payment, are available; c. Information regarding all pending deadlines; d. A clear statement notifying the recipient of the right to challenge the charge in court and instructions regarding how to do so; e. The exact date, time, and location of the court session at which the recipient must or may appear; f. Information regarding how to seek a continuance for a court date; g. The specific fine imposed, if the charged offense has a preset fine; h. A clear statement that the recipient is entitled to have the amount of the imposed fine proportioned to the recipient’s ability to pay; i. The range of possible penalties for failing to meet court requirements; and j. Clear instructions regarding how to acquire information regarding a pending charge, including how to contact a clerk of the Ferguson Municipal Court by phone or in person. 334. Within 60 days of the Effective Date, the City will develop and implement a plan to regularly, and at least on a monthly basis, audit citations, arrest notification forms, and other notices of violations used by officers to ensure that such documents are completed properly and in a manner that provides individuals with thorough and accurate information as required by this
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Agreement. The City will develop this plan in consultation with the Monitor and submit it to DOJ for approval.
335. The City agrees to maintain up-to-date contact information for individuals with cases pending in the Ferguson Municipal Court, including ensuring that court staff request updated address and other contact information each time a defendant appears in court or otherwise communicates with court staff and ensuring that any updated information received is maintained in the defendant’s municipal court file.
3. Online Payment System 336. Within 60 days of the Effective Date, the City will revise its online payment system to allow late payments, payment plan installments, and all other court payments to be made online except where prohibited by law. 337. Within 60 days of the Effective Date, the City agrees to contract with the provider of its current online payment system, or another qualified provider, to establish an online system by which a person charged with a violation can access specific details about a case, including pending charges, court dates, deadlines, owed fines and fees, and payments already made. This system will be developed in consultation with the Monitor and submitted to DOJ for approval. 338. The City agrees to ensure that all online court systems include the privacy protections necessary to protect a defendant’s personal information.
4. Eliminating Unnecessary Barriers to Resolving Cases 339. Within 60 days of the Effective Date, the City will develop and implement a plan to identify and eliminate unnecessary barriers to resolving municipal cases. As part of this plan, the City agrees to:
a. Ensure that nothing in any City ordinance or any other City directive requires that an in-person court appearance be made for any offense beyond those offenses listed in Missouri Supreme Court Rule 37.49 as requiring an in-court appearance;
b. Implement a process for requesting a continuance of a required court appearance, including by phone, fax, or in-person, whether or not represented by counsel. Requests shall be considered in good faith and granted upon a showing of good cause for the continuance;
c. Ensure that the City website provides accurate information regarding the hours
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and location of the Ferguson Municipal Court and Ferguson Municipal Court Clerk’s Office. The City will ensure that the Court and Court Clerk’s office are consistently staffed during posted business hours; d. Accept partial payments pursuant to criteria established by the Municipal Judge and not reject any payment an individual wishes to make against any court fine, fee, or outstanding debt; and e. At a minimum, the court will accept payments for all court-related fines and fees in the form of credit card payments, money orders, and cash.
5. Imposing Fines and Fees, and Conducting Ability-to-Pay Determinations
340. Within 60 days of the Effective Date, the City will ensure that defendants are provided with appropriate ability-to-pay determinations consistent with the following requirements:
a. The Court will affirmatively inquire as to a defendant’s financial capacity prior to initially assessing fines, fees, and costs;
b. Where a showing of indigency is made, the Court will proportion all fines, fees, and costs imposed by the Court to the financial resources of the defendant;
c. Individuals who indicate they cannot afford to pay will not be asked to prove their indigency beyond completion of a standard affidavit under penalty of perjury;
d. Objective and consistent criteria will be established for proportioning fines, fees, and costs to a defendant’s income in cases where a defendant makes a sufficient showing of indigency. These criteria not only will take into account the income of the defendant, but will also consider any documented fines or fees owed to other municipal courts; and
e. The City agrees to ensure that ability-to-pay determinations are conducted prior to the court imposing any initial fine or fee, upon any increase in the fine or related court costs and fees, and upon a defendant’s request for an ability-to-pay determination at any point in a case, including in cases with preset fines.
341. The City agrees to maintain a public list of preset fines (Traffic Violations Bureau or “TVB” fines) for all municipal ordinance violations for which preset fines are allowed under Missouri law. The City further agrees to recommend to the Municipal Judge TVB fine amounts
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that are not overly punitive, that take into account the income of Ferguson residents, and that are under no circumstances greater than regional averages for specific offenses. The TVB fine recommendations will be developed in consultation with the Monitor and subject to approval by DOJ.
342. The City agrees not to impose additional charges, fines, fees, or costs in response to any alleged or found “Failure to Appear” violation, or pursuant to Ferguson Municipal Code §§ 13-60, 13-63, 13-70(2), or 13-70(3).
6. Community Service and Payment Plan Options
343. Within 60 days of the Effective Date, the City will ensure that defendants are provided with appropriate alternative sentence and payment plan options consistent with the following requirements.
344. The City agrees to provide all defendants with the option of performing community service in lieu of paying fines and fees within 120 days of the Effective Date. In advance of that date, the City will work with local and regional community organizations to develop a comprehensive community service program. The community service program will establish reasonable rates at which community service is credited against pending fines and fees, and will establish reasonable time periods for the completion of community service obligations that take into account a defendant’s existing employment and familial obligations. The community service program will be developed in consultation with the Monitor and subject to approval by DOJ.
345. The City agrees to ensure that defendants are provided with options for courtmanaged payment plans with reasonable periodic payments. Such policies will provide:
a. An ability-to-pay determination to assess a periodic payment amount that is reasonable in light of the defendant’s financial resources;
b. Procedures for a person to seek a reduction in the periodic payment amount; c. Procedures allowing individuals, without appearing in court, to seek requests for
extensions of payment obligations, to be granted upon a showing of good cause; and d. Multiple opportunities each month, at varied days and times, for individuals on payment plans to appear before the Municipal Judge to petition the Court for payment plan modifications, extensions, or other relief.
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346. If a person fails to timely fulfill community service obligations or satisfy a court debt within the time allotted by a court payment plan, the City agrees to collect outstanding debts in a manner consistent with the processes set forth in this Agreement.
7. Requirements for Municipal Arrest Warrants 347. The City agrees not to use municipal arrest warrants as a means of collecting civil court debt. 348. Within 60 days of the Effective Date, the City will establish and implement protocols, through policy or ordinance, to ensure that arrest warrants related to municipal code violations will be issued, if at all, only after all other mechanisms available for securing a person’s appearance in court have been exhausted. Such protocols will also ensure that arrest warrants are not being issued in response to a person’s financial inability to pay a fine or fee. Such protocols will require, at a minimum, that:
a. The City provide individuals who have missed a required court appearance or payment with notice of the missed requirement, notice of a new court date or payment deadline, and notice of the potential consequences for failing to satisfy that subsequent requirement;
b. If a defendant fails to satisfy a subsequent required court appearance, the court will conduct a hearing on why a warrant should not issue, including an assessment of ability to pay any pending fine or fee. The court shall not issue a warrant for any individual who appears at the show cause hearing;
c. The City agrees to provide effective notice of any motion for an order to show cause. The City will, at a minimum, provide this notice through first-class mail, and may attempt to contact the person by telephone or text message if such contact information is available; and
d. If the above mechanisms are unsuccessful at securing payment or otherwise resolving the case, the municipal court may, in its discretion, issue an arrest warrant. The City agrees that, upon arresting any person pursuant to an outstanding municipal arrest warrant, such detentions shall comport with the requirements of this Agreement.
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8. Bond
349. The City agrees to ensure that no person is held in custody after arrest because the person cannot afford to post a monetary bond.
350. Within 60 days of the Effective Date, the City will develop and implement a plan to eliminate the use of a fixed monetary bond schedule. This plan will require that all individuals arrested by FPD for an initial violation of law or an outstanding municipal warrant will, except as otherwise provided by state law, receive a court date and be released on their own recognizance as soon as practicable after booking, and in any case within 12 hours of booking, except:
a. In circumstances where an arrestee has a documented history of failing to appear for a required court appearance, the City may require an unsecured bond not to exceed $200 prior to release. In such circumstances, the City will first provide the arrestee with the option of pleading guilty and paying the amount of the fine in full without needing to subsequently appear in court, unless the arrestee is charged with an offense for which an in-person appearance is required by Missouri Supreme Court Rule 37.49. If the person cannot or does not elect to resolve the charge through payment of a fine, the City will: 1. Provide the arrestee with a new court date; 2. Clearly instruct the arrestee that failure to appear as required may result in assessment of the amount of the unsecured bond; 3. Prior to assessment, conduct a show cause hearing as to why the unsecured bond shall not be assessed, with actual notice to the arrestee; and 4. In no case require payment of the bond amount prior to release.
b. Where any person who is arrested for assaultive or threatening conduct (including assault on a law enforcement officer) or who presents a danger to the victim, the public, or any other person, the City may authorize individuals to be held beyond 12 hours. The City agrees that: 1. No person arrested pursuant to a municipal arrest warrant will be held beyond 12 hours; 2. The Chief of Police or his or her designee must authorize all detentions beyond 12 hours; and
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3. Any person held beyond 12 hours must be brought before a court within 24 hours of arrest.
9. License Suspensions and Reinstatements 351. The City agrees to report a defendant’s failure to appear or pay a fine in a case involving a moving traffic violation to the Missouri Department of Revenue only to the extent required by Missouri law. 352. In cases in which a defendant’s driver’s license has been suspended for failing to appear or pay a fine in a case involving a moving traffic violation, the City agrees to provide compliance letters that satisfy the requirements of Missouri Revised Statute § 302.341.1 immediately once a defendant appears in court following the suspension. The City agrees to ensure that compliance letters will not be conditioned upon payment of outstanding fines or fees in full.
10. Trial Procedures 353. Within 180 days of the Effective Date, the City agrees to develop and implement, in consultation with the Monitor and with approval of DOJ, trial procedures and protocols to ensure that all trials within the Ferguson Municipal Court are conducted fairly and impartially, and in compliance with all applicable constitutional and other legal requirements.
11. Court Records 354. The City agrees to ensure that all online court systems enable the collection of aggregated court data consistent with the court data collection and reporting requirements of this Agreement. The City will continue development of an electronic court records management system that is sufficient to reliably ensure that all case information is tracked and accessible to court officials as appropriate. The City agrees to complete development and implementation of the electronic court records management system within 180 days of the Effective Date. 355. The City will ensure that the electronic records management system has appropriate controls to limit user access and ability to alter case records. The records management system will comport with applicable law, including Supreme Court of Missouri Operating Rules 1.10 and 2. 356. The City will provide the Missouri State Courts Administrator (MSCA) with all required and requested information in a timely fashion, and will ensure that such information is
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accurate. Consistent with paragraph 324, the City agrees to make all information provided to the MSCA, as well as other court data collected pursuant to policy or this Agreement, readily accessible on the City and court websites.
12. Ensuring Independence from City Prosecutor 357. Within 60 days of the Effective Date, the City will develop and implement policies to ensure that the Ferguson Municipal Court operates impartially, independently from the City Prosecutor, and in a manner that eliminates existing and potential unlawful conflicts of interest. Consistent with Missouri law, such protocols shall require that the City Prosecutor, not court staff, perform all prosecutorial duties, including: maintaining case files separate and apart from those maintained by the court; reviewing case files and filings; setting fine recommendations; responding to all discovery requests; and prosecuting all charges by information.
13. Ensuring Impartiality of Municipal Judge 358. The City agrees to ensure that the Municipal Judge appointed to serve on the Ferguson Municipal Court is sufficiently independent to avoid impropriety, the appearance of impropriety, and existing or potential conflicts of interest. Consistent with this requirement, the City has prepared revisions to Ferguson Municipal Code § 13-26. The City agrees to enact and maintain this revised ordinance.
14. Ensuring Appropriate Accommodations for Defendants with Mental Illness or Intellectual or Developmental Disabilities
359. The City agrees to implement appropriate mechanisms for providing defendants with mental illness or intellectual or developmental disabilities with information about their available options for diversion from the municipal justice system.
D. Ongoing Assessment and Improvement 360. Within 60 days of the Effective Date, the City will develop protocols for regularly conducting cost-feasible data-driven and qualitative assessments of court practices. These assessments will be designed to ensure that court proceedings are administered fairly and in accordance with policy and federal and state law. Assessments will include analysis of aggregated court data each month, including the number of cases heard, cases resolved, fine amounts imposed and collected, warrants issued, and warrants outstanding; an analysis of fine
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practices; review of information on the frequency and duration of detentions in Ferguson City Jail; and review of license suspension and compliance letter practices, including breakdowns by protected characteristics for all assessments. As part of this internal assessment process, the City will identify deficiencies and opportunities for improvement; implement appropriate corrective action and improvement measures; and document measures taken.
XIX. ACCOUNTABILITY 361. Holding public servants accountable when they violate law or policy is essential to ensuring legitimacy of governance and community confidence. Well functioning accountability systems also promote employee safety and morale. The provisions set out below are designed to ensure that Ferguson’s accountability systems are effective, fair, and transparent. A. Principles of Accountability 362. The City will require that all FPD officers and court employees adhere to the following principles of accountability. Within 120 days of the Effective Date, the City will review applicable policies and personnel regulations to ensure incorporation of the following principles to which employees must adhere. Any violation of the personnel rules and regulations, including of provisions relating to the principles of accountability, shall be subject to appropriate discipline, up to and including termination.
1. Duty to Report Misconduct 363. The City will require that every City employee, including every FPD officer regardless of rank, who observes or becomes aware of any act of misconduct by an employee against a member of the public report the incident to a supervisor for appropriate documentation and investigation. The failure to report an allegation of misconduct, as defined in this agreement, will result in discipline, up to and including termination.
2. Duty of Candor 364. The City will require that every City employee, including every FPD officer regardless of rank, be truthful at all times in spoken, written, or electronic communications, whether under oath or not, in all matters and official investigations relating to the scope of their employment. The penalty for a material breach of this duty of candor by an officer will be termination.
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3. Duty to Facilitate Reporting and Investigation 365. The City will require all FPD officers to wear nameplates or nametags as part of the standard uniform that will allow members of the public to identify officers with whom they interact. FPD supervisors will be required to inspect personnel at roll call prior to shifts to ensure that officers under their command are complying with this requirement. An officer’s repeated failure to wear a nameplate or nametag without justification or a supervisor’s repeated failure to inspect the nameplates or nametags of officers under his or her command will require an investigation and may result in discipline. 366. FPD officers shall provide their names and badge numbers to members of the public upon request. The unjustified failure to provide identifying information to a member of the public will result in discipline. 367. The City will require employees to cooperate with administrative investigations to the fullest extent permitted by law, including appearing for an interview when requested and providing all requested documents and evidence. The unjustified failure to comply will result in discipline, up to and including termination.
4. Duty Not to Retaliate Against Complainants or Otherwise Discourage Complaints
368. The City will expressly prohibit all forms of retaliation, including discouragement, intimidation, coercion, or adverse action, against any person—civilian or employee—who reports misconduct, makes a misconduct complaint, or cooperates with an investigation of misconduct. Officers or other City employees who retaliate against any person who reports or investigates alleged misconduct will be subject to discipline, up to and including termination. Officers or other City employees who discourage the filing of a misconduct complaint, refuse to accept a misconduct complaint, or provide false or misleading information about filing a misconduct complaint will be subject to discipline, up to and including termination.
B. Misconduct Complaint Intake, Investigation and Adjudication 369. Within 180 days of the Effective Date, the City and FPD will develop and implement policies to ensure that all allegations of misconduct are courteously received, centrally documented and tracked, and fully and fairly investigated as required by this
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agreement. Where allegations are sustained, discipline will be imposed fairly and consistently, and officers and complainants will be provided information as appropriate and consistent with this Agreement and applicable law. These policies will include the requirements set out below.
1. Complaint Intake
370. The City agrees to accept misconduct complaints from all parties, including complaints made by a complainant or on the complainant’s behalf, complaints made by a third party, or anonymous complaints. Written complaints from civilians or FPD officers or employees will be accepted by mail, email, online through an easily usable form clearly identified on the City’s website, or by personal delivery to any employee. Verbal complaints will be accepted by phone or in person.
371. The City Attorney will notify FPD’s Chief of Police or the Chief’s designee if the City Attorney or any City prosecutor becomes aware of an allegation of FPD employee conduct made in the Ferguson Municipal Court or any other judicial forum that, if true, would violate the law or FPD policy. Such allegations will be documented, tracked and investigated in the same manner as other misconduct complaints.
372. The City agrees to develop an easily understandable and usable Complaint Form that individuals may choose to use when making a misconduct complaint, although it shall not be required that complainants use this form. The Complaint Form will not contain any language that could reasonably be construed as discouraging the filing of a complaint. The City agrees that it will not support the prosecution of anyone because they have complained about law enforcement misconduct, even if the complaint is unfounded.
373. The fact that a complainant does not speak, read, or write English, or is deaf or hard of hearing, shall not be deemed a reason to not accept or investigate a complaint.
374. The City agrees to make Complaint Forms and other materials outlining the complaint process—including relevant telephone numbers and email addresses to obtain additional information—widely and permanently available, including at City and FPD websites; the lobby of City Hall; all Ferguson schools staffed by FPD employees; FPD headquarters; and the Ferguson Municipal Court. All FPD officers will know how to inform members of the public about how to make a complaint and will carry Complaint Forms in their FPD vehicles. The City agrees to make available a secure complaint drop box at the Police Station and City Hall, which will be regularly checked and accessible only by the Chief of Police or his or her designee.
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375. FPD officers shall immediately notify a supervisor of a complaint received in the field. An FPD supervisor receiving a complaint regarding an incident that just occurred shall accept and immediately begin the investigation of the complaint, unless the supervisor was involved in or directed the conduct complained of, in which case the supervisor shall contact the shift commander, who shall assign another supervisor to immediately begin investigating the complaint.
376. Where the alleged misconduct involves a critical incident, the commanding officer will notify the Chief of Police, who will ensure that the appropriate authorities, including another jurisdiction, are notified to conduct an independent investigation.
2. Complaint Tracking 377. Upon a complaint being received, the Chief or designee shall assign a Complaint Tracking Number. FPD will ensure that the complainant (if known) is contacted and provided with a Complaint Tracking Number within 72 hours of the complaint being received. All complaints will be logged in a centralized electronic tracking system immediately upon being received, and in all cases within 24 hours from when the complaint was received. 378. Within 180 days of the Effective Date, the City will develop and implement an electronic centralized tracking system for all complaints of misconduct. The system will capture accurate and reliable information regarding each complaint, from when the allegation was initially made to final disposition, including a description of the allegation, the final approved disposition, and any discipline imposed. This system will be used to show lengths of time for investigations, notifications made to the complainant, and status of complaints, and to make periodic assessments of compliance with FPD policies and procedures and this Agreement. 379. The City agrees to track, as separate categories of misconduct complaints, allegations related to: violations of the duty of candor; discriminatory policing, including allegations that an officer conducted a stop or arrest based on an individual’s protected characteristics or used a slur based on an individual’s protected characteristics; unlawful stop, search, citation, or arrest practices; allegations of excessive use of force; and allegations of judicial misconduct or misconduct by employees of the Ferguson Municipal Court.
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3. Complaint Investigation 380. The Chief of Police will designate a member of the command staff to coordinate the classification and investigation of misconduct complaints. 381. FPD will develop and implement a policy and protocol for the classification and investigation of misconduct complaints. FPD agrees that this policy and protocol will provide for the assignment of misconduct complaints that involve critical incidents—or other misconduct complaints as the Chief of Police deems appropriate—to an independent, outside entity for investigation. 382. The City will ensure that all misconduct investigators possess excellent investigative skills, a reputation for integrity, and the ability to be fair and objective. A misconduct complaint investigation may not be conducted by any officer involved in the incident in question, including officers who used force during the incident; whose conduct led to the injury of a person; who authorized the conduct that led to the reported incident or complaint; or who witnessed or was involved in the incident leading to the allegation of misconduct.
4. Misconduct Complaint Investigation 383. The City agrees to ensure objective, comprehensive, and timely investigations of all allegations of law enforcement misconduct. Investigators shall be required to consider all relevant evidence, including circumstantial, direct, and physical evidence, as appropriate, and make credibility determinations based upon that evidence. There will be no automatic preference for an officer’s statement over a non-officer’s statement, nor will investigators disregard a witness statement merely because the witness has some connection to the complainant or because of any criminal history. The City agrees that all administrative investigations will be completed within 60 days of the receipt of the complaint, including assignment, investigation, review and final approval of a disposition, unless the Chief of Police extends the investigation. In these cases, the investigator must justify the need to extend and formally request the extension directly to the Chief of Police or his or her designee. In these cases, investigation will be completed within 120 days. 384. Nothing in this Agreement or FPD policy shall hamper an officer’s obligation to provide a public safety statement regarding a work-related incident or activity. The City agrees to make clear in policy and training that all officer statements in incident reports, arrest reports,
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use-of-force reports and similar documents, and statements made in interviews such as those conducted in conjunction with routine use-of-force review and investigation processes, are part of each officer’s routine professional duties, and are not compelled statements under Garrity v. New Jersey, 385 U.S. 493 (1967). FPD policies shall make clear that where an officer believes that providing a verbal or written statement will be self-incriminating, the employee must affirmatively state this in writing at the time the request for the statement is made and before the statement is due, and will not be required to provide a statement unless formally compelled upon approval by the Chief of Police, who will consult with the relevant prosecuting agency as appropriate. FPD policies shall require that in all misconduct investigations, prior to taking a statement from or questioning a subject employee, the employee shall be informed of his or her rights and potential consequences related to providing a voluntary or compelled statement, and shall be required to sign a form indicating that the officer has been advised of these rights and potential consequences and indicating whether the statement is being compelled or provided voluntarily.
385. The City agrees to develop policies for conducting concurrent administrative and criminal investigations of allegations of misconduct. The City agrees to ensure that, if at any time during complaint intake or investigation the investigator determines that there may have been criminal conduct on the part of any officer or employee, the investigator shall ensure that the employee’s constitutional rights are protected. The investigator shall notify the Monitor and DOJ, as well as the Chief of Police who shall ensure that a bifurcated investigation is initiated. FPD will have an independent agency handle the criminal investigation.
386. The City will require that any time an investigator determines that there may have been additional misconduct or violations beyond those initially alleged, the investigator shall take all necessary steps to ensure that such misconduct is fully and fairly documented and investigated.
5. Complaint Adjudication
387. The resolution of any misconduct complaint must be based upon the preponderance of the evidence. A misconduct investigation shall not be closed simply because the complaint is withdrawn unless there is documentation of the circumstances of the complaint being withdrawn, and approval by the Chief. If the complainant is unable or unwilling to provide additional information beyond the initial complaint, the investigation will continue as
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necessary to resolve the original allegation(s) where possible based on the available evidence and investigatory procedures and techniques. In each investigation, the fact that a complainant pled guilty or was found guilty of an offense shall not determine whether an FPD officer committed the alleged misconduct, nor shall it be the sole reason to discontinue the investigation.
388. The investigator shall explicitly identify and recommend one of the following dispositions for each allegation of misconduct in an administrative investigation:
a. “Unfounded,” where the investigation determines, by a preponderance of the evidence, that the alleged misconduct did not occur or did not involve the subject employee;
b. “Sustained,” where the investigation determines, by a preponderance of the evidence, that the alleged misconduct did occur;
c. “Not Sustained,” where the investigation is unable to determine, by a preponderance of the evidence, whether the alleged misconduct occurred; or
d. “Exonerated,” where the investigation determines, by a preponderance of the evidence, that the alleged conduct did occur but did not violate the law or FPD policy.
389. The Chief of Police or the Assistant Chief of Police will approve all investigation dispositions involving FPD officers. The City Manager will approve all investigation dispositions involving members of the Ferguson Municipal Court.
390. In addition to determining a disposition, administrative investigations will assess and document whether: (a) the conduct was in compliance with training and legal standards; (b) the incident indicates a need for additional training, counseling, or other non-disciplinary corrective measures; and (c) the incident suggests that FPD or the City should revise its policies, strategies, tactics or training. This information will be shared with the relevant FPD commander(s), who shall ensure that recommended changes are implemented and documented.
391. Sustained allegations of misconduct will be subject to appropriate nondisciplinary corrective actions, such as additional training, counseling or other action, and shall be subject to discipline as determined appropriate by the Chief of Police in consultation with the Director of Human Resources and the City Manager. Any decision by the Chief of Police to terminate an officer must be approved by the City Manager in accordance with Section 4.4 of the City’s Charter. Discipline will be based on the nature of the allegation and any mitigating or
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aggravating factors and not the identity of the officer or the complainant or the status of either the officer or complainant within the broader community. Where an allegation is sustained, the City will ensure that disciplinary penalties are decided and communicated to the officer in a timely manner.
392. FPD agrees to develop and implement a transparent and consistent schedule of disciplinary penalties that establishes a presumptive range of discipline for each type of rule violation, sets out defined mitigating or aggravating factors justifying departure from the presumptive discipline range, and requires that any departure must be justified in writing.
393. The Chief of Police, in consultation with the Director of Human Resources and the City Manager, will approve all discipline of FPD officers. Any decision by the Chief of Police to terminate an officer must be approved by the City Manager in accordance with Section 4.4 of the City’s Charter. All disciplinary decisions will be documented, maintained in the investigative file and the officer’s personnel file, and reported within the complaint tracking system and EIS systems consistent with FPD policy and best practices.
394. FPD agrees to participate in the National Decertification Index administered by the International Association of Directors of Law Enforcement Standards and Training, and to provide the Index, as well as Missouri POST, with all information regarding sustained misconduct findings, subject to any legal limits on such disclosures.
6. Communication with Subject Employee and Complainant 395. The City agrees to develop and implement policies to ensure that the subject employee receives appropriate notice and information regarding the misconduct investigation and the disciplinary process. The subject employee will be kept informed periodically regarding the status of the investigation and will be notified of the outcome of the investigation in writing upon its completion. Subject employees will be allowed to present mitigating circumstances prior to the imposition of any disciplinary penalty. 396. Each misconduct complainant will be kept informed periodically regarding the status of the investigation. The complainant will be notified of the outcome of the investigation in writing within 21 business days of the completion of the investigation, including regarding whether any disciplinary or non-disciplinary action was taken.
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C. Internally Discovered Violations of Policy that Do Not Involve Members of the Public
397. Within 180 days of the Effective Date, the City agrees to develop and implement policies for ensuring that FPD supervisors can quickly resolve violations of policy that: (a) do not stem from an interaction with a member of the public, and (b) are not reported from outside of FPD. For all such violations, FPD supervisors:
a. Will fully and accurately document the violation and assign the violation a Complaint Tracking Number;
b. Will, where appropriate, recommend a disciplinary penalty for approval by the Chief of Police; and
c. May, in certain limited circumstances, elect to address the violation through nondisciplinary counseling or remedial training, but only where the violation is a first-time offense and the conduct alleged is so minor that it is correctible through these methods. A second or subsequent violation in a six-month period will be ineligible for resolution through non-disciplinary methods.
398. The FPD Chief of Police or his or her designee will review all reports of internally discovered violations of policy that do not stem from an interaction with a member of the public, including the supervisory response, to determine whether additional investigation is required and to approve the recommended discipline or corrective action.
D. Community-Centered Mediation of Misconduct Complaints
399. Within one year of the Effective Date the City agrees to affiliate with the Community Mediation Services of St. Louis to provide a community-centered mediation program to act as an alternative to the misconduct investigation process described above for certain civilian allegations of officer misconduct. The misconduct complaint mediation program will be designed to increase understanding and trust between community members and FPD officers, and to prevent future misconduct and complaints of misconduct. The program will be developed and administered consistent with best practices and will specifically provide that:
a. Misconduct complaints will only be resolved through mediation where both the complainant (or his or her designee) and the subject employee agree to participation in the mediation process;
b. Only certain misconduct complaints will be eligible for mediation, as set out in
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FPD policy; c. Officers who have participated in two or more mediation sessions within the
previous 12-month period will not be eligible to have misconduct complaints made against them resolved through mediation; and d. Where the mediator determines that the officer is not participating in the mediation program in good faith, the mediation shall end and the complaint investigation shall resume. 400. The City will provide appropriate resources to ensure that the misconduct mediation program is effective and operating in a way that is consistent with best practices. The program will be administered by an individual with experience in police mediation or the administration of mediation programs, including the selection and training of mediators. This individual may also be used to develop and administer the community mediation program required in paragraphs 32-34. Mediators conducting misconduct mediations will reflect the diversity of and come from the communities served by the program and will be trained consistently with best practices. E. Ongoing Assessment and Improvement 401. Within one year of the Effective Date, the City will develop protocols for regularly, and at least annually, conducting cost-feasible data-driven and qualitative assessments to measure the effectiveness of FPD’s accountability practices. These assessments will be designed to ensure that members of the community can readily make a complaint alleging police or court misconduct and that such complaints are investigated and adjudicated consistently with FPD Policy. Assessments will include: an analysis of the number of complaints received, the disposition of complaints by complaint type, the timeliness and average length of complaint investigations, and disciplinary actions taken; an analysis of problematic complaint trends; and an analysis of whether there are disparities in disposition decisions or disciplinary penalties. As part of the assessment process, the City and FPD will identify deficiencies and opportunities for improvement, implement appropriate corrective action and improvement measures as the City and FPD deem necessary and feasible, and document any such measures taken.
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XX. CIVILIAN OVERSIGHT
402. To promote transparent and community-centered law enforcement, the City agrees to continue and expand its commitment to establishing meaningful civilian oversight of FPD.
403. In November 2014, the City formed a Civilian Review Board Task Force to engage the community and make recommendations to the City Council for the establishment of a Civilian Review Board. After almost a year of focused community engagement, and, in consultation with the National Association of Civilian Oversight of Law Enforcement (NACOLE), the Task Force submitted its final 33-page report and recommendations on October 6, 2015. The City will continue to work with the Task Force, as necessary, until the Ferguson Civilian Review Board (CRB) is established by ordinance, which will be subject to review by DOJ. DOJ has deferred to the Task Force’s determinations regarding the most appropriate form of civilian oversight for Ferguson, subject to the assessment of the Monitor, set out in paragraph 410, below.
404. In establishing the CRB, the City, in consultation with the Task Force, will ensure that the ordinance sets forth protocols for selecting CRB members who are representative of all areas and groups within the City. Consistent with the Task Force’s recommendation, the following persons are not eligible to serve on the CRB: (a) current or past employees of FPD; (b) current City employees; (c) any person convicted of a felony in this state or any other state; and (d) the spouse of those ineligible persons listed above. The members of the CRB shall appoint one of their members to serve as Chairperson.
405. The City, in consultation with the Task Force, will ensure that the CRB is established and operational within 270 days of the Effective Date. The CRB will:
a. Receive and review, make findings, and recommend disciplinary action for (a) all Force Review Board investigations involving a complaint of misconduct and a sampling of other Force Review Board investigations as determined appropriate by the CRB, and (b) all investigations of complaints by members of the public against members of the police department that allege misconduct involving excessive use of force, abuse of authority, discourtesy, or use of offensive language, including, but not limited to, slurs relating to race, ethnicity, religion, gender, sexual orientation and disability, pursuant to Mo. Rev. Stat. § 590.653 and
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policies consistent with Mo. Rev. Stat. § 590.653 developed by the City and subject to approval by DOJ; b. The CRB shall be notified when any FPD investigation of misconduct is preliminarily completed, and shall be provided with the opportunity to review, comment, and make recommendations to the Chief of Police prior to the Chief’s approval of the FPD investigation. The CRB’s review of investigations may include a review of all evidence relevant to the underlying misconduct complaint; c. All findings and recommendations of the CRB, and the basis therefore, shall be submitted to the Chief of Police for appropriate action consistent with FPD policy and this Agreement. In accordance with Mo. Rev. Stat. § 590.653, no finding or recommendation shall be based solely upon an unsworn complaint or statement, nor shall prior unsubstantiated, unfounded or withdrawn complaints be the basis for any such findings or recommendations. Disciplinary recommendations shall be consistent with the disciplinary matrix approved by DOJ (see Section XIX); d. Within 180 days of the establishment of the CRB and appointment of its members, the CRB will develop and recommend a program to promote awareness throughout the broader Ferguson community about the options available for filing misconduct complaints, and about the misconduct complaint process. Within 90 days of the finalization of the CRB’s program, the City will implement the program to the extent feasible and appropriate; e. Review and assess FPD policies and procedures, as well as training plans and curricula, and make recommendations for modifications to policies, procedures, and training; f. Serve on officer hiring and promotion panels, except that members of the CRB serving on hiring and promotion panels shall not participate in the review of complaints or complaint investigations; g. Develop and implement ways to educate the public on policing and to assist in enhancing FPD’s relationship with the Ferguson community; and h. Review crime data, racial profiling data, and complaint statistics to identify patterns and trends.
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406. The City agrees to ensure that the CRB has the resources, training, and capacity to fulfill each of these responsibilities, as set forth below.
407. The City agrees to enact appropriate City ordinances and take any additional measures necessary to ensure that the CRB effectively performs each of its assigned civilian oversight functions. These measures include: authorizing the CRB to have timely access to appropriate video, reports, and records related to the complaint being investigated in accordance with applicable law; providing appropriate meeting space; ensuring the CRB’s independence from FPD and the City; and other measures necessary to enable the CRB to effectively fulfill its mandate. The City will designate a current employee to perform certain administrative functions of the CRB such as coordinating and posting notice of meetings, uploading information to the City’s website, and similar functions.
408. The City agrees to work with appropriate organizations in the field of civilian oversight, such as NACOLE and civilian oversight bodies in other jurisdictions, to develop and implement a plan for training all CRB members in civilian oversight. The CRB training plan will be developed in consultation with the Monitor, consistent with best practices, and subject to DOJ approval. The City will specifically provide training regarding: relevant constitutional and state law; FPD policies and procedures; implicit bias; proper investigation techniques, including gathering and objectively analyzing evidence, as well as resolving inconsistent statements; and proper application of the preponderance of the evidence standard.
409. Within 12-18 months of the CRB’s creation, the Task Force will conduct a comprehensive assessment of the CRB’s operations to ensure that it is providing effective civilian oversight. If the Task Force determines that the CRB is not effectively fulfilling its mandate, the City will work with the Task Force to ensure that the policies, procedures, and composition of the CRB are modified as necessary to ensure effective oversight.
410. The Monitor will develop protocols to assess (a) whether the CRB is representative of the broader Ferguson community by reflecting the racial, ethnic, geographic, and housing diversity within the region, considering the applicants willing to serve on the CRB, and (b) whether the CRB is effectively serving the civilian oversight functions described in Mo. Rev. Stat. § 590.653 and this Agreement.
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XXI. DATA COLLECTION, REPORTING, AND TRANSPARENCY A. Data Collection 411. The City and FPD agree to ensure the collection and tracking of all FPD and municipal court data that is: (a) necessary to enable the City’s ongoing assessment and improvement of its law enforcement practices, as discussed throughout this Agreement; (b) necessary to enable the Monitor to conduct the outcome assessments set out in Section XXII; and (c) otherwise required by this Agreement, FPD policy, and state and federal law. 412. To ensure that collected data is complete, accurate, and reliable, the City agrees to work with the Monitor to develop and implement a cost-feasible data collection plan and related protocols, to be approved by the Monitor and DOJ. B. Public Availability of Policies and Reports 413. The City agrees to make publicly available on request and on the City’s website all FPD and municipal court policies and protocols, as well as all public reports described in this Agreement. Any exceptions will be limited to information that must remain confidential to protect public safety and approved by DOJ and the Monitor. 414. On at least an annual basis, the City will make data collected pursuant to paragraph 411 publicly available on the City website in summary form, unless prohibited by law. C. Annual Report 415. Within 60 days following the expiration of each year of the term of this Agreement, the City agrees to produce an annual report describing FPD and Ferguson Municipal Court activity. The purpose of the annual report will be to inform the public of the City’s law enforcement achievements and challenges, as well as new programs and steps taken to address challenges and build on successes. The annual report will further provide information regarding the City’s implementation and status of this Agreement. The annual report shall not include any specific information or data that may not be disclosed pursuant to applicable law. Subject to applicable law, the annual report will address:
a. Community engagement and problem-solving policing efforts, identifying successes, obstacles, and recommendations for future improvement;
b. Disparate impact of any police or court program or activity and measures taken to eliminate unnecessary disparate impacts;
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c. Voluntary contact, stop, search, and arrest data and any analysis of that data that was undertaken;
d. First Amendment protected activity data and associated analyses; e. Use-of-force data and associated analyses; f. Crisis Intervention Team specialized members, training, and activities; g. SRO program successes and challenges; h. Initiatives that the City has implemented for officer assistance and support; i. Recruitment efforts, challenges, and successes; j. In-service and supplemental recruit training; k. Misconduct complaint data, including but not limited to the number of
misconduct complaints made and investigated; the outcome of investigations; and the mode of resolution (e.g. full investigation, mediation, etc.), as well as analysis of that data to identify trends; l. Activities and achievements of the Civilian Review Board, Neighborhood Policing Steering Committee, Ferguson Youth Advisory Board, Apartment Neighborhood Association, and any other board or commission that has been active or accomplished achievements during the year; m. Court operation data and related trends and analyses; and n. Additional topics as deemed appropriate by the City in its discretion to promote transparency and identify the accomplishments, actions, and continuing needs of the City.
XXII. MONITORING, COMPLIANCE ASSESSMENT, AND ENFORCEMENT A. Independent Monitor 416. The Parties will jointly select an Independent Monitor (“Monitor”), which will be
a team of individuals highly qualified in policing, civil rights, monitoring, and related areas, to assess and report on whether the requirements of this Agreement have been implemented, and whether this implementation is resulting in constitutional and otherwise lawful policing and administration of justice, and increased community trust between the public and the Ferguson Police Department and Court. The Monitor will work with the Parties to identify and address any barriers to compliance.
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417. The Monitor will have only those duties, responsibilities, and authority conferred by this Agreement. The Monitor is not intended to replace or assume the role or duties of the Chief of Police or any other City official. Nothing in this Agreement alters the authority of the City Manager or the fact that the Chief of Police retains authority over FPD, including the authority to oversee its operations. The Monitor will be subject to the supervision and orders of the Court, consistent with this Agreement and applicable law.
418. In order to assess, assist, and report on FPD’s implementation of this Agreement and whether the goals of this Agreement are being achieved, the Monitor will conduct the activities specified in this Agreement, including assisting FPD in its development of the policies, procedures, practices, training curricula, systems and programs required by this Agreement.
B. Selection and Compensation of the Monitor
419. Within 90 days of the Effective Date, or additional time if agreed to by the Parties, the City and DOJ together will select a Monitor acceptable to both Parties, to assess and report on FPD’s implementation of this Agreement. The selection of the Monitor shall be pursuant to a process jointly established by the City and DOJ, and shall not be subject to any formal procurement requirements. The Parties’ Monitor selection will be subject to the approval of the Court with jurisdiction over this Agreement.
420. If the Parties are unable to agree on a Monitor within the timeframe agreed to by the Parties, each Party will submit the names of three monitoring teams, along with the teams’ monitoring proposals (including cost proposals), to the Court, and the Court will select a Monitor from among the candidates submitted.
421. The Monitor will be appointed for a period of five years beginning on the Effective Date and will have its appointment extended automatically should the City not demonstrate full and effective compliance at the end of this five-year period. The extension of the Monitor beyond seven years will be allowed only if the Court determines that such extension would facilitate full and effective compliance with this Agreement. The Monitor’s appointment will terminate prior to five years if the City has achieved the necessary full and effective compliance for a period of two consecutive years.
422. The City will bear all reasonable fees and costs of the Monitor. DOJ and the City recognize the importance of ensuring that the fees and costs borne by the City are reasonable, and accordingly fees and costs will be an important factor to be considered in selecting the
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Monitor. In the event that any dispute arises regarding the reasonableness or payment of the Monitor’s fees and costs, the City, DOJ, and the Monitor will attempt to resolve such dispute cooperatively prior to seeking the assistance of the Court. The City will provide the Monitor with office space and reasonable office support such as office furniture, telephones, Internet access, secure document storage, and photocopying.
423. The Monitor, at any time after its initial selection, may request to be allowed to hire, employ, or contract with such additional persons or entities as are reasonably necessary to perform the tasks assigned to the Monitor by this Agreement. Any person or entity hired or otherwise retained by the Monitor to assist in furthering any provision of this Agreement will be subject to the provisions of this Agreement. The Monitor will notify the City and DOJ in writing if the Monitor wishes to select such additional persons or entities. The notice will identify and describe the qualifications of the person or entity to be hired or employed and the monitoring task to be performed. If the City and DOJ agree to the Monitor’s proposal, the Monitor will be authorized to hire or employ such additional persons or entities. The City and DOJ have ten business days to disagree with any such proposal. If the City and DOJ are unable to reach agreement within ten business days of receiving notice of the disagreement, they will seek the Court’s assistance in resolving the dispute. Should the City or DOJ determine that the Monitor’s individual members, agents, employees, or independent contractors have exceeded their authority, or failed to satisfactorily perform the duties required by this Agreement, the City or DOJ may petition the Court for such relief as the Court deems appropriate, including replacement of the Monitor, and/or any individual members, agents, employees, or independent contractors.
C. Duties of the Monitor
1. Develop Monitoring Plan and Review Methodology
424. Within 90 days of assuming the duties of Monitor, the Monitor will develop a plan for conducting: (a) reviews of policies, training curricula, and other written materials requiring Monitor review or approval; (b) evaluations and audits of whether the material requirements of this Agreement have been implemented; and (c) outcome assessments, including the community surveys required by this Agreement. The Monitor will submit this plan to the Parties for review and approval. This plan will:
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which requirements will be assessed together; b. Set out a schedule for conducting a review or audit of each requirement of this
Agreement within the first two years of this Agreement, and a review or audit of each requirement at least annually thereafter; and c. Set out a schedule for conducting outcome measure assessments for each outcome measure at least annually, except where otherwise noted in this Agreement, with the first assessment occurring within 18 months of the Effective Date. 425. Where the Monitor recommends and the Parties agree, the Monitor may refrain from conducting a compliance review of a requirement previously found to be in compliance by the Monitor pursuant to audit or review, or where outcome assessments indicate that the outcome intended by the requirement has been achieved. 426. At least 30 days prior to the initiation of any assessment, review, or audit of the requirements or outcome measures of this Agreement, the Monitor will submit a proposed methodology for the assessment, review, or audit to the Parties. The Parties will submit any comments or concerns regarding the proposed methodology to the Monitor no later than 15 days prior to the proposed date of the assessment, review, or audit. The Monitor will modify the methodology as necessary to address any concerns or will inform the Parties in writing of the reasons it is not modifying its proposed methodology. Any unresolved disputes involving the Monitor’s methodology may be submitted to the Court for resolution.
2. Evaluate and Audit Implementation of the Agreement 427. The Monitor will conduct reviews or audits as necessary to determine whether the City and FPD have implemented and continue to comply with the requirements of this Agreement. Compliance requires that the City and FPD: (a) have incorporated the requirement into policy; (b) have trained all relevant personnel as necessary to fulfill their responsibilities pursuant to the requirement; and (c) are carrying out the requirement in actual practice. Compliance reviews and audits will contain the elements necessary for reliability and comprehensiveness. Compliance reviews and audits may be conducted using sampling and compilation data where appropriate.
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3. Recommend and Provide Technical Assistance 428. The Monitor may make recommendations to the Parties regarding measures necessary to ensure timely, full, and effective implementation of this Agreement and its underlying objectives. Such recommendations may include a recommendation to change, modify, or amend a provision of this Agreement, a recommendation for additional training in any area related to this Agreement, or a recommendation to seek technical assistance. In addition to such recommendations, the Monitor may also, at the request of DOJ or the City and based on the Monitor’s reviews, provide technical assistance consistent with the Monitor’s responsibilities under this Agreement. The Monitor does not have the authority to modify the requirements of this Agreement through these recommendations or otherwise.
4. Conduct Community Surveys 429. Within one year of the Effective Date, and every year thereafter, the Monitor will conduct a reliable, comprehensive, and representative survey of members of the Ferguson community, including police officers, regarding their experiences with and perceptions of FPD, public safety, and the municipal court. Analysis of the results of this survey may be used to demonstrate sustained continuing improvement with this Agreement. 430. To conduct the annual community surveys, the Monitor will:
a. Develop a baseline of measures on public satisfaction with policing, attitudes among police personnel, and the quality of police-citizen encounters;
b. Develop a baseline of measures on public satisfaction with the municipal court, attitudes among court personnel, and the quality of individuals’ encounters with court personnel;
c. Design, conduct, and analyze baseline and subsequent annual surveys of a representative sample of Ferguson residents, law enforcement personnel, and detained arrestees;
d. Review and consider prior law enforcement and court surveys in Ferguson as well as current or recent concerns, in designing the survey;
e. Engage in informal conversation with Ferguson residents, FPD officers, court staff, and DOJ representatives, and observe community meetings;
f. Ensure that the resident and arrestee surveys are designed to capture a
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representative sample of individuals of all relevant protected characteristics served by FPD and the municipal court; g. Conduct the survey in English and non-English languages as necessary to allow for representation of the entire Ferguson community; and h. Formally discuss the survey methodology with FPD supervisors and DOJ, and consider these opinions in development of the baseline survey and improvements to subsequent surveys. 431. FPD and the City agree to cooperate with the design and execution of the surveys. 432. The report of the baseline survey and subsequent annual surveys will be posted on the City’s website and publicly distributed. 433. The City and FPD will analyze the results of the survey and will use this analysis to modify and improve FPD policies, training, and practices as needed.
5. Conduct Outcome Assessments
434. In addition to compliance reviews and audits, the Monitor will conduct qualitative and quantitative assessments to measure whether implementing this Agreement is resulting in constitutional and otherwise lawful law enforcement. Within 120 days of assuming the duties of Monitor, the Monitor will review and recommend any changes to the outcome measures detailed below that the Monitor deems useful in assessing whether implementation of this Agreement is resulting in constitutional and otherwise lawful law enforcement. The Parties will adopt any recommendations upon which they agree. If the Parties disagree on whether to adopt a particular outcome measure recommended by the Monitor, the Party seeking adoption may seek Court resolution.
435. These outcome assessments will include analyzing, at least annually, the following:
a. The results of the community surveys set out above; b. Community engagement measurements, including:
1. FPD officers’ (including supervisors and commanders) participation in community meetings and events, development/continuation of partnerships between FPD and community members, and engagement in positive interactions with community members that did not previously have strong relationships with the police department; 108

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2. Development and maintenance of long-term programs to promote and foster positive police-youth interactions (such as Police Athletic/Activities League and Explorer Program);
3. Responses to calls for service in different areas of, and housing types within, Ferguson;
4. Relationship with the Neighborhood Policing Steering Committee, Civilian Review Board, Youth Advisory Board, Apartment Neighborhood Association, and any other civilian engagement and oversight groups;
5. Level of participation in and effectiveness of Community Mediation Program; and
6. Level and effectiveness of police-community problem-solving partnerships. c. Bias-free policing measurements, including regression analyses sufficient in type
and scope to determine whether any police or court program, initiative, activity, or service has a disparate impact on the basis of protected characteristics. Such analyses will control for factors other than protected characteristics, including but not limited to crime rates, income level, and ability to pay. Examples of the regression analyses that will be conducted are analyses of whether: 1. FPD officers are more likely to stop; cite; search, including searches based on
probation and parole conditions; seize contraband; or arrest, including on municipal warrant arrests, persons with a protected characteristic; 2. FPD officers are more likely to stop, cite, search, or arrest persons with a protected characteristic for discretionary and non-violent offenses, including Manner of Walking, High Grass and Weeds, Barking Dog, Trash Service, and Housing/Zoning code offenses; 3. FPD officers are more likely to use force, including all types of force identified in the use-of-force outcome measurements below, based on protected characteristics; 4. FPD officers are more likely to deploy canines, based on protected characteristics, and related disparate impact of canine bites; 5. FPD officers are more likely to impound vehicles based on the protected characteristics of the vehicle owner or occupant;
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6. The Ferguson Municipal Court is more likely to issue or recall municipal arrest warrants based on protected characteristics;
7. The Ferguson Municipal Court is more likely to dismiss charges or modify charges, including reducing charges to lesser charges, based on protected characteristics;
8. The Ferguson Municipal Court is more likely to impose fines or bond requirements, or higher fine or bond requirements, based on protected characteristics; and
9. The Ferguson Municipal Court is more likely to reduce fines based on a protected characteristic.
d. Voluntary contact, stop, search, citation, and arrest measurements, including: 1. Total number of stops, searches, citations, and arrests—overall and broken down by geographic area, arrest charge, protected characteristics of subject (if any), and the rate at which the encounters resulted in a summons or arrest; 2. Number and rate of stops and searches for which there is sufficient documented reasonable suspicion—overall and broken down by geographic area, arrest charge, and protected characteristics of subject (if any); 3. Number and rate of increase or decrease of instances in which supervisory approval was necessary for the issuance of citations; 4. Number of citations or other forms of charges issued per stop, broken down by geographic area, arrest charge, and protected characteristic; 5. Number and rate of increase or decrease of arrests for offenses requiring supervisory approval before transport and arrests not permitted absent continuing unlawful conduct or inability to identify subject; 6. Number of correctable violations issued, broken down by offense, and ratio of correctable violations to citations for each eligible offense; 7. Data related to the documented reasonable suspicion to stop and probable cause to search or arrest, broken down by the actual or perceived protected characteristics of the person(s) stopped/arrested;
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8. Number of civilian complaints regarding stops, searches, seizures, and arrests, overall and by disposition, geographic area, type of stop or seizure, and protected characteristics;
9. The state prosecutor’s acceptance and refusal rates for prosecution from arrests made by FPD and reasons for refusals, when made available by the prosecutor, and any factors and information provided indicating that a failure to prosecute was due to the quality of the case or concerns regarding officer conduct, overall and broken down by zone, arrest charge, and protected characteristics of the subject; and
10. Number of searches that resulted in a finding of contraband, overall and broken down by geolocation, arrest charge, and protected characteristics of the subject.
e. First Amendment measurements, including: 1. Number of citations and arrests requiring supervisor approval under the First Amendment section of this Agreement, broken down by geolocation, arrest charges, and protected characteristics of the subject; 2. Number of incidents in which the officer’s reported rationale for the police action indicates that the action taken was related to (i) an individual recording or observing officer activity, (ii) public protest activity, (iii) media coverage of events, or (iv) an individual’s expression of criticism of law enforcement; 3. Number of complaints in which a person claims he or she was not permitted to observe, record, criticize, or protest police activity, or was retaliated against for such conduct; 4. Number of members of the press arrested or otherwise interfered with; and 5. Number of incidents in which a recording device or recording was seized, searched, or destroyed, and the reason for these actions.
f. Use-of-force measurements, including: 1. Number of use-of-force incidents (including force used in the FPD jail) as compared to number of arrests, with use-of-force incidents broken down by force type, geographic area, and type of related arrest (if any);
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2. Number of injuries to officers and members of the public, and the rate at which officer and subject injuries decrease or increase—overall and broken down by severity of injury;
3. Number of force complaints, broken down by disposition of complaints, source of complaint (internal or external), force type, and geographic area;
4. Rate at which ECW and canine deployment and apprehension decreases or increases compared to the use of force overall and by weapon;
5. Number of force incidents associated with obstruction arrests and similar violations;
6. Number of uses of force (including force used in the FPD jail) found to violate policy, broken down by force type, geographic area, and arrest charge;
7. Number of officers found to have used force in violation of policy or law more than one time;
8. Force reviews or investigations indicating a policy, training, equipment, or tactical deficiency;
9. Quality of use-of-force investigations and reviews, and number and rate of use-of-force administrative investigations that are returned for further investigation or lack of completeness; and
10. Number of use-of-force incidents recorded through the use of body-worn and/or in-vehicle cameras compared to the number of use-of-force incidents not recorded.
g. Response to individuals in crisis measurements, including: 1. Number of calls for service involving persons in crisis, broken down by whether CIT officers responded to the calls; 2. The rate of individuals diverted from the criminal justice system to the health care system; and 3. Number of police interactions where force was used on persons in crisis, including the type of force used; the reason for the interaction (e.g., suspected criminal conduct, wellness check); the threat to public safety, including whether the person was armed and if so, with what; the type of resistance
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offered, if any; attempts at strategic disengagement; and injuries to officers, persons in crisis, or third parties. h. Policing in schools measurements, including: 1. Number of calls for service and other reports of crime occurring on school grounds during school hours or school-sanctioned events; 2. Number of citations, arrests, and uses of force and restraints on school grounds during school hours or school-sanctioned events, broken down by school, charges, and protected characteristics of the subject; 3. Number of cases diverted toward conflict resolution, school discipline process, alternatives, and diversion programs, broken down by school, arrest charges, and protected characteristics of the subject; 4. Number and type of complaints about officer conduct on school grounds during school hours or school-sanctioned events; 5. Student and staff perceptions of school safety and officer fairness, and SRO views of the program, based on surveys and other tools to be developed by the City and FPD; and 6. Disparities in officer uses of force, arrests, or charges brought on school grounds, by the protected characteristic of the subject student. i. Court practices measurements—which, unless otherwise indicated, will include breakdowns by offense, whether the defendant was represented by an attorney, and the protected characteristics of the defendant—including: 1. Number of cases pending before the Ferguson Municipal Court; 2. Number of cases heard by the Court each month, including a breakdown of the race of the defendant, and a breakdown of how cases were resolved; 3. Number of missed court appearances; 4. Number of continuance requests granted and denied; 5. Number of warrants issued, and total warrants pending, each month; 6. Amount of initial fines imposed and collected, separate from any additional charges imposed during a case; 7. Number of ability-to-pay determinations conducted;
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8. Number of cases designated for resolution through community service each month;
9. Number of cases assigned and cleared from payment plans each month; 10. Number of unsecured bonds assessed, and dollar amount of unsecured bonds
assessed and collected, each month; 11. Number of Missouri Department of Revenue license suspensions initiated by
the Court, and the number of compliance letters enabling license reinstatement issued by the Court; and 12. Number and nature of complaints regarding court services, broken down by protected characteristics of the defendant. 436. In conducting these outcome assessments, the Monitor may use any relevant data collected and maintained by FPD (e.g., crime trend pattern analysis), provided that the Monitor has determined, and the Parties agree, that this data is reasonably reliable and complete. 6. Conduct Comprehensive Assessment 437. Three years after the Effective Date, the Monitor will conduct a comprehensive assessment to determine whether and to what extent the outcomes intended by this Agreement are being achieved, and whether any modifications to this Agreement may be appropriate in light of changed circumstances, unanticipated impact (or lack of impact) of the requirement, or the feasibility compared with need for the requirement. Where the Parties agree with the Monitor’s recommendations, the Parties will modify this Agreement accordingly. This provision in no way diminishes the Parties’ ability to stipulate to modifications to this Agreement as set out below. Nothing in this assessment will enable the Monitor to unilaterally modify the terms of this Agreement. 7. Publicly Report Assessment and Status of Agreement Implementation 438. The Monitor will file with the Court, every six months, written, public reports that include the following: a. A description of the work conducted by the Monitor during the reporting period; b. A list of each Agreement requirement, indicating which requirements have been: 1. Incorporated into implemented policy;
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2. The subject of sufficient training for all relevant FPD officers and employees; and
3. Found by the Monitor to have been fully implemented in practice. c. The methodology and specific findings for each review and audit conducted,
where appropriate, redacted as necessary for privacy concerns. An unredacted version will be filed under seal with the Court and provided to the Parties. The underlying data for each review will not be publicly available but will be retained by the Monitor and provided to either or both Parties upon request; d. For any requirements that were reviewed or audited and found not to have been fully implemented in practice, the Monitor’s recommendations regarding necessary steps to achieve compliance; e. The methodology and specific findings for each outcome assessment conducted; and f. A projection of the work to be completed during the upcoming reporting period and any anticipated challenges or concerns related to implementation of this Agreement. 439. The Monitor will provide a copy of the six-month reports to the Parties in draft form within 15 calendar days after the end of each reporting period. The Parties will have 15 calendar days upon receipt of the report to informally comment on the draft report. The Monitor will consider the Parties’ responses and make appropriate changes, if any, before issuing the report.
8. Regularly Communicate with the Court, Parties, and Public 440. The Monitor will maintain regular contact with the Parties in order to ensure effective and timely communication regarding the status of FPD’s implementation of and compliance with this Agreement. To facilitate this communication, the Monitor will conduct monthly meetings, which will include participation by, at a minimum, the Chief of Police, counsel for the City, FPD’s Compliance Coordinator (described below), and representatives of DOJ. 441. The Monitor will meet with community stakeholders, including the CRB, NPSC and the Ferguson City Council, to explain the Monitor’s reports and inform the public about this
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Agreement’s implementation process, as well as to hear community perspectives on police interactions.
D. Monitor and DOJ Access and Confidentiality
442. To facilitate its work, the Monitor may conduct on-site visits and assessments without prior notice to the City or FPD. The Monitor will have access to all necessary individuals, facilities, and documents, which will include access to Agreement-related trainings, meetings, and reviews such as critical incident reviews and disciplinary hearings. FPD will notify the Monitor as soon as practicable, and in any case within 12 hours, of any critical firearms discharge, in-custody death, arrest of any officer, or any high-profile event expected to garner media attention.
443. The City and FPD agree to ensure that the Monitor will have timely, full, and direct access to all City and FPD staff, employees, critical incident scenes, and facilities that the Monitor reasonably deems necessary to carry out the duties assigned to the Monitor by this Agreement. The Monitor will cooperate with the City and FPD to access people and facilities in a reasonable manner that, consistent with the Monitor’s responsibilities, minimizes interference with daily operations.
444. The City and FPD will ensure that the Monitor will have full and direct access to all City and FPD documents and data that the Monitor reasonably deems necessary to carry out the duties assigned to the Monitor by this Agreement, except any documents or data protected by the attorney-client privilege or that constitute attorney work product. The attorney-client privilege may not be used to prevent the Monitor from observing reviews, trainings, or disciplinary hearings. Should the City and FPD decline to provide the Monitor with access to documents or data based on privilege, the City and FPD will inform the Monitor and DOJ that it is withholding documents or data on this basis, and will provide the Monitor and DOJ with a log describing the documents or data and the basis of the privilege for withholding. If DOJ objects to the City’s classification, it may seek resolution of the propriety of the assertion of the attorney-client privilege from the Court.
445. For the purpose of implementing this Agreement, DOJ and its consultants and agents will have full and direct access to all City and FPD staff, employees, facilities, documents, and data related to the Agreement, except any documents or data protected by the attorney-client privilege or that constitute attorney work product. DOJ and its consultants and
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agents will cooperate with the City and FPD to access involved personnel, facilities, and documents in a reasonable manner that, consistent with DOJ’s responsibilities to enforce this Agreement, minimizes interference with daily operations. Should the City or FPD decline to provide DOJ with access to documents or data based on attorney-client privilege, the City and FPD will inform DOJ that it is withholding documents or data on this basis, and will provide DOJ with a log describing the documents or data and the basis of the privilege for withholding. If DOJ objects to the City’s classification, it may seek resolution of the propriety of the assertion of the attorney-client privilege from the Court.
446. The Monitor and DOJ will provide the City and FPD with reasonable notice of a request for copies of documents. Upon such request, working with the Monitor and DOJ to determine a cost-effective and timely manner of production, the City and FPD will provide copies of the requested documents in a timely manner (electronic, where readily available).
447. The Monitor will have access to all records and information relating to criminal investigations of FPD officers as permitted by law. The Monitor will have access to all documents in criminal investigation files that have been closed by FPD after the Effective Date. The Monitor will also have reasonable access to all arrest reports, warrants, and warrant applications initiated after the Effective Date, whether or not contained in open criminal investigation files. Where practicable, arrest reports, warrants, and warrant applications initiated after the Effective Date will be obtained from sources other than open criminal investigation files.
448. The Monitor and DOJ will maintain all non-public information provided by the City and FPD in a confidential manner. Other than as expressly provided in this Agreement, this Agreement will not be deemed a waiver of any privilege or right the City and FPD may assert, including those recognized at common law or created by statute, rule, or regulation, against any other person or entity with respect to the disclosure of any document.
449. Except as required or authorized by the terms of this Agreement or with the Parties acting together: the Monitor, including any agent, employee, or independent contractor thereof, will not make any public statements or issue findings with regard to any act or omission of the City or FPD, or their agents, representatives, or employees; or disclose non-public information provided to the Monitor pursuant to this Agreement. Any press statement made by
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the Monitor regarding its employment or monitoring activities under this Agreement first will be approved by DOJ and the City.
450. Members of the Monitoring Team may testify as to their observations, findings, and recommendations before the Court with jurisdiction over this matter, but no member of the Monitoring Team will testify in any other litigation or investigative or pre-litigation proceeding with regard to any act or omission of the City, FPD, or any of their agents, representatives, or employees related to this Agreement or regarding any matter or subject of which the Monitor may have received knowledge as a result of his or her performance under this Agreement. This paragraph does not apply to any proceeding before a court related to performance of contracts or subcontracts for monitoring this Agreement.
451. Unless such conflict is waived by the Parties, the Monitor will not accept employment or provide consulting services that would present a conflict of interest with the Monitor’s responsibilities under this Agreement, including being retained (on a paid or unpaid basis) by any current or future litigant or claimant, or such litigant’s or claimant’s attorney, in connection with a claim or suit against the City or its departments, officers, agents or employees.
452. The Monitor is not a state or local agency, or an agent thereof, and accordingly, the records maintained by the Monitor will not be designated as public records subject to public inspection.
453. The Monitor will not be liable for any claim, lawsuit, or demand arising out of the Monitor’s performance pursuant to this Agreement brought by non-parties to this Agreement.
E. City of Ferguson Consent Decree Coordinator
454. The Parties agree that the City will reassign a current City employee for the duration of the Agreement, to serve as the Consent Decree Coordinator. The Consent Decree Coordinator will serve as a liaison between the City, FPD, the Monitor, and DOJ, and will assist with the City and FPD’s implementation of this Agreement. At a minimum, the Consent Decree Coordinator will:
a. Assist the Monitor in coordinating review, audit, and implementation activities; b. Facilitate the provision of data, documents, other material, and access to FPD
employees to the Monitor and DOJ, as needed; c. Ensure that all documents and records are maintained as provided in the
Agreement; and
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d. Assist in assigning Consent Decree related tasks to FPD personnel, as directed by the City Manager, the Chief of Police, or their designees, and in tracking the handling of those tasks.
F. City of Ferguson Data Collection, Self-Assessment, and Report
455. The City and FPD agree to collect and maintain all data and records: necessary to: (a) document implementation of and compliance with this Agreement, including data and records necessary for the Monitor to conduct reliable outcome assessments, reviews, and audits; and (b) allow FPD or other City entities to perform ongoing quality assurance in each of the areas addressed by this Agreement.
456. Within 180 days of the Effective Date, FPD will file with the Court, with a copy to the Monitor and DOJ, a status report. This report will delineate the steps taken by FPD during the reporting period to implement this Agreement; FPD’s assessment of the status of its progress; plans to correct any problems; and responses to any concerns raised in the Monitor’s previous semi-annual report. Following this initial status report, FPD will file a status report every six months thereafter while this Agreement is in effect.
G. Court Jurisdiction, Modification of this Agreement, and Enforcement
457. This Agreement will become effective upon entry by the Court. 458. To ensure that the requirements of this Agreement are properly and timely implemented, the Court will retain jurisdiction of this action for all purposes until such time as the City and FPD have achieved full and effective compliance with this Agreement and maintained such compliance for no less than two consecutive years. At all times, the City and FPD will bear the burden of demonstrating by a preponderance of the evidence full and effective compliance with this Agreement. DOJ reserves its right to seek enforcement of the provisions of this Agreement, and to seek additional enforcement and implementation mechanisms, if it determines that the City and FPD have failed to fully comply with any provision of this Agreement. DOJ will consult with officials from the City before instituting enforcement proceedings and will make a good-faith attempt to resolve any disputes before seeking intervention from the Court. 459. The City and DOJ may jointly agree to make changes, modifications, and amendments to this Agreement. Such changes, modifications, and amendments to this Agreement will be encouraged when the Parties agree, or where the Monitor’s reviews,
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assessments, and/or audits demonstrate, that an Agreement requirement as drafted is not furthering the purpose of this Agreement or that there is a preferable alternative that will achieve the same purpose. Where the Parties or the Monitor are uncertain whether a change to this Agreement is advisable, the Parties may agree to suspend the current Agreement requirement for a time period agreed upon at the outset of the suspension. During this suspension, the Parties may agree to temporarily implement an alternative requirement. The Monitor will assess whether the suspension of the requirement, and the implementation of any alternative provision, is as or more effective at achieving the purpose as was the original/current Agreement requirement, and the Parties will consider this assessment in determining whether to jointly stipulate to make the suggested change, modification, or amendment.
460. The Parties agree to defend the provisions of this Agreement. The Parties will notify each other of any court or administrative challenge to this Agreement. In the event any provision of this Agreement is challenged in any city or state court, removal to a federal court will be sought by the Parties.
461. The City and FPD agree to require compliance with this Agreement by their respective officers, employees, agencies, assigns, or successors.
H. Termination of this Agreement
462. This Agreement will terminate when the City has been in full and effective compliance for two consecutive years. “Full and effective compliance” means achieving both sustained compliance with all material requirements of this Agreement, and sustained and continuing improvement in constitutional policing and public trust, as demonstrated pursuant to this Agreement’s outcome measures.
463. If the Parties disagree whether the City has been in full and effective compliance for two years, either Party may seek to terminate this Agreement. In the case of termination sought by the City, prior to filing a motion to terminate, the City agrees to notify DOJ in writing when the City has decided that it is in full and effective compliance with this Agreement and that such compliance has been maintained for no less than two consecutive years. Thereafter, the Parties will promptly confer as to the status of compliance. If, after a reasonable period of consultation and the completion of any audit or evaluation that DOJ and/or the Monitor may wish to undertake, including on-site observations, document review, or interviews with City and FPD personnel, the Parties cannot resolve any compliance issues, the City may file a motion to
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terminate this Agreement. After the receipt of the City’s motion, DOJ will have the right to file a written response. The parties agree to jointly seek a hearing on the motion, and the burden will be on the City to demonstrate by a preponderance of the evidence that it is in full and effective compliance with this Agreement and have maintained such compliance for at least two years.
464. This Agreement is enforceable only by the Parties. No person or entity is intended to be a third-party beneficiary of the provisions of this Agreement for purposes of any civil, criminal, or administrative action. Accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement.
XXIII. DEFINITIONS
465. The following terms and definitions will apply to this Agreement: 1. “Active resistance” means a person’s physical actions are intended to prevent an officer
from placing the subject in custody and taking control, but are not intended to harm the officer. Examples include breaking the officer’s grip and hiding to avoid detection. Verbal statements, bracing, pulling away, or tensing alone do not constitute active resistance.
2. “Aggravated aggressive resistance” means a person’s actions create an objectively reasonable perception on the part of the officer that the officer or another person is subject to imminent death or serious physical injury as a result of the attack or attempted attack. Aggravated aggressive resistance represents the least encountered but most serious threat to the safety of an officer or another person.
3. “Aggressive resistance” means a person attempts to attack or does attack an officer. Lunging toward the officer and striking the officer with hands, fists, kicks, or any weapon are examples of aggressive resistance. Neither passive nor active resistance constitute aggressive resistance.
4. “Apprehension” means the arrest, capture, or taking into custody of a person.
5. “Arrest” means the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the person arresting him. An arrest is a restraint of greater scope or duration than an investigatory stop or detention. An arrest is lawful when supported by probable cause.
6. “Bite” means any physical contact between a canine’s teeth and a person or animal. This physical contact need not result in broken or punctured skin to be a bite.
7. “Bite ratio” means the number of canine apprehensions that result in a bite, divided by the number of canine apprehensions. Accidental and unintentional bites shall be included in the numerator.
8. “Best practices” means guidelines or standards that represent the most efficient and current means for achieving constitutional and effective policing accepted by nationally recognized
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police professionals or organizations in the relevant subject area, as determined by the Parties.
9. “Canine apprehension” means any time a canine is deployed and plays a clear role in the capture of a person. The mere presence of a canine at the scene of an arrest shall not count as a canine apprehension.
10. “Canine handler” means a sworn member of FPD who has been certified by a canine trainer used by FPD as meeting all requirements of FPD’s certification program.
11. “Canine deployment” means any situation, except one involving an on-leash article search only, in which a canine is brought to the scene and used in an attempt to locate or apprehend a suspect, whether or not a suspect actually is located or apprehended. This includes all situations in which a canine is removed from a vehicle for this purpose and all instances in which a subject surrenders after an announcement is made warning that the canine will be released if the subject does not surrender.
12. “Chief” or “Chief of Police” means the Chief of Police of the Ferguson Police Department or a properly designated Acting or Interim Chief.
13. “City” refers to the City of Ferguson, Missouri, including its agents, officers, and employees.
14. “Complainant” means any person, including an FPD officer or employee, who makes a complaint against FPD or an FPD officer or employee.
15. “Complaint” means any allegation of misconduct regarding FPD services, policy, or procedure; any claim for damages; or any criminal matter that alleges possible misconduct by an FPD officer or employee.
16. “Compliance” means that the City and FPD: (a) have incorporated the requirement into policy; (b) have trained all relevant personnel as necessary to fulfill their responsibilities pursuant to the requirement; and (c) are carrying out the requirement in actual practice.
17. “Consent search” means a search conducted based on the consent or permission of the individual whose person or property is searched.
18. “Court” refers to the United States District Judge for the Eastern District of Missouri presiding over this case.
19. “Critical firearm discharge” means a discharge of a firearm by an FPD officer, including accidental discharges and discharges where no person is struck. Range and training firings, destruction of animals, and off-duty hunting discharges where no person is struck are not critical firearms discharges.
20. “Crisis Intervention Team” is a first responder model of police-based crisis intervention that involves a dynamic collaboration of community, health care, and advocacy partnerships committed to improving the way law enforcement and the community respond to individuals in crisis.
21. “Critical incident” means any officer-involved shooting, death in police custody, or death as a result of being in police custody.
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22. “Department of Justice” or “DOJ” refers to the United States Department of Justice’s Civil Rights Division.
23. “Discipline” or “disciplinary action” means a personnel action for violation of an established law, regulation, rule, administrative rule, or FPD policy, including, but not limited to, a verbal reprimand, written reprimand, suspension, or dismissal.
24. “Discriminatory policing” means selective enforcement or non-enforcement of the law, including the selecting or rejecting of particular policing tactics or strategies based on protected characteristics. Discriminatory policing does not include using race, ethnicity, or any other protected characteristics in any reliable and current suspect-specific description.
25. “ECW” or “Electronic Control Weapon,” means a weapon, including those manufactured by TASER International, designed primarily to discharge electrical charges into a subject that will cause involuntary muscle contractions and override the subject’s voluntary motor responses.
26. “ECW application” means the contact and delivery of an electrical impulse to a subject with an Electronic Control Weapon.
27. “Effective Date” means the day this Agreement is entered by the Court.
28. “Exigent circumstances” means emergencies in which a reasonable person would believe that imminent bodily harm to a person or persons or the destruction of evidence is likely.
29. “Firearm” means a handgun, shotgun, or any other weapon designed to expel a projectile by the action of an explosive.
30. “FPD” or “the Department” refers to the Ferguson Police Department and its agents, officers, supervisors, and employees (both sworn and unsworn).
31. “Force” means any physical effort used to control or restrain another, or to overcome the resistance of another.
32. “Frisk” or “pat down” means an officer passing his or her hands over a person in a search for weapons or contraband.
33. “Full and effective compliance” means achieving both sustained compliance with all material requirements of this Agreement and sustained and continuing improvement in constitutional policing and public trust, as demonstrated pursuant to the Agreement’s outcome measures.
34. “Imminent threat” means an immediately impending danger.
35. “Impact weapon” means any authorized intermediate weapon or object used to strike a subject and inflict pain or injury through blunt force.
36. “Implement” or “implementation” means the development or putting into place of a policy, plan, or program, including the appropriate training of all relevant personnel, and the consistent and verified performance of the policy, plan, or program in actual practice.
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37. “Improvised weapon” means any object, other than those objects approved and authorized by the Department, used to apply force, and any Department-approved weapon used by an officer who has not received required training or certification to use the weapon.
38. “Incidental” means occurring merely by chance or without intention or calculation.
39. “Include(s)” and “including” mean “including, but not limited to.”
40. “Interview” means questioning for the purpose of eliciting facts or information.
41. “Investigatory stop” or “investigatory detention” means a “Terry” stop, i.e., a temporary restraint for investigatory purposes where the subject of the stop or detention would reasonably believe that she or he is not free to leave. A juvenile’s age is a consideration in determining whether the juvenile would not feel free to leave. An investigatory stop or detention may be a pedestrian, vehicle, or bicycle stop.
42. “LEP” means Limited English Proficient, and refers to a person who does not speak English as his/her primary language and has a limited ability to read, write, speak, or understand English. LEP individuals may be competent in certain types of communication (e.g., speaking or understanding), but still be LEP for other purposes (e.g., reading or writing).
43. “Less-lethal force” means force neither intended nor likely to cause death or serious physical injury, but that can cause death or serious physical injury. Less-lethal force includes, but is not limited to, the use of an ECW, an impact weapon such as an asp or baton, and OC spray.
44. “Lethal force” means any use of force likely to cause death or serious physical injury, including the use of a firearm; neck hold; or strike to the head, neck, or throat with a hard object.
45. “Low-level force” means force lesser than lethal and less-lethal force. Low-level force includes but is not limited to takedowns; physical striking to parts of the body other than the head, neck, or throat; hand controls; pressure point techniques; and physical escort techniques.
46. “Mental health condition” or “mental illness” means a medical condition that disrupts an individual’s thinking, perception, mood, or ability to relate to others such that daily functioning and coping with the ordinary demands of life are diminished. This includes, but is not limited to, serious mental illnesses such as major depression, schizophrenia, bipolar disorder, obsessive compulsive disorder, panic disorder, posttraumatic stress disorder, and borderline personality disorder. This also includes dual diagnosis of mental illness and another condition, such as drug and/or alcohol addiction.
47. “Mental health crisis” means an incident in which someone with an actual or perceived mental illness or developmental disability is experiencing intense feelings of personal distress (e.g., anxiety, depression, anger, fear, panic, hopelessness), obvious changes in functioning (e.g., neglect of personal hygiene, unusual behavior), or catastrophic life events (e.g., disruptions in personal relationships, support systems, or living arrangements; loss of autonomy or parental rights; victimization; natural disasters), which may, but do not
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necessarily, result in an upward trajectory of intensity culminating in thoughts or acts that are dangerous to him- or herself and/or others.
48. “Misconduct” means a violation of departmental policies or procedures; a violation of federal, state, or local criminal laws; a constitutional violation, whether criminal or civil; a violation of personnel rules; or a violation of administrative rules or regulations.
49. “Non-custodial interview” means an encounter during which an officer asks questions of a subject the officer seeks to investigate for a possible offense, and during which the subject is free to leave and/or decline any of the officer’s requests at any point.
50. “Non-disciplinary corrective action” refers to action other than discipline taken to enable or encourage an officer to improve his or her performance.
51. “Necessary force” means the minimum amount of force required, because no reasonably effective alternative appears to exist, to effect a legitimate public safety objective. Legitimate public safety objectives include protecting any person from injury, effecting a lawful detention or arrest, and conducting a lawful search.
52. “Neck hold” means any of the following types of holds: (a) arm-bar control hold, which inhibits breathing by compression of the airway in the neck; (b) carotid restraint hold, which inhibits blood flow by compression of the blood vessels in the neck; (c) lateral vascular neck constraint; (d) a hold with a knee or object to the back of a prone subject’s neck. A neck hold is considered lethal force.
53. “Open Enrollment Recruit” means a person admitted to the St. Louis County and Municipal Police Academy through the Open Enrollment Recruit Program.
54. “Passive resistance” means a person is not compliant with officer commands but is taking only minimal physical action to prevent being taken into custody and control and does not pose an immediate threat to the officer or the public. Bracing, tensing, linking arms, or verbally signaling an intention to avoid or prevent being taken into custody constitute passive resistance.
55. “Personnel” means all FPD employees.
56. “Police officer” or “officer” means any law enforcement agent employed by or volunteering for FPD, including corrections officers, supervisors, and reserve officers.
57. “Policies” or “policies and procedures” means written regulations or directives, regardless of the name of the regulation or directive, describing the duties, functions, and obligations of FPD personnel, and providing specific direction on how to fulfill those duties, functions, or obligations. These include general orders, special orders, policies, procedures, and standard operating procedures.
58. “POST” means the Missouri Peace Officer Standards and Training Program.
59. “Preponderance of the evidence” means that a given fact or outcome is more likely than not to be true.
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60. “Pretextual stop” means a lawful police stop or detention initiated for the purpose of investigating potential criminal activity for which the officer has neither reasonable suspicion nor probable cause.
61. “Probable cause” means that the facts and circumstances known to the officer at the time would justify a prudent person in believing the suspect committed or was committing an offense.
62. “Procedural justice” refers to a concept involving four central principles designed to build public confidence in the police: 1) treating people with dignity and respect; 2) giving individuals a chance to be heard during encounters; 3) making decisions fairly and transparently, based on facts; and 4) conveying goodwill and trustworthiness.
63. “Proportional force” means force that reflects the totality of the circumstances surrounding the situation, including the presence or absence of imminent danger to officers or others. Proportional force does not require officers to use the same type or amount of force that the subject uses. The more immediate the threat and the more likely that threat will result in death or serious physical injury, the greater the level of force that may be objectively reasonable and necessary to counter it.
64. “Protected Characteristics” include race, color, ethnicity, national origin, gender, gender identity, sexual orientation, age, immigrant status, disability, and limited English proficiency.
65. “Qualified mental health professional” means an individual with a minimum of masterslevel education and training in psychiatry, psychology, counseling, social work, or psychiatric nursing, who is currently licensed in the State of Missouri to deliver the mental health services he or she has undertaken to provide.
66. “Reasonable force” means that force which is objectively reasonable under the circumstances and the minimum amount of force necessary to effect an arrest or protect the officer or other person.
67. “Reasonable suspicion” means articulable facts that, within the totality of the circumstances, lead an officer to reasonably believe that the suspect has committed, is committing, or is about to commit a crime.
68. “Reportable use of force” means any use of force that is greater than that required for unresisted searching or handcuffing. Additionally, unholstering or pointing a firearm, and any use of force which results in injury or a complaint of pain are reportable uses of force for the purposes of this Agreement.
69. “Seizure” occurs when an officer’s words or actions convey to a reasonable person that he or she is not free to leave.
70. “Serious physical injury” means physical injury that creates a substantial risk of death, causes death or serious and protracted disfigurement, or causes impairment of the function of any bodily organ or limb.
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71. “Social contact” means a voluntary, consensual encounter between the police and a subject with the intent of engaging in casual and/or non-investigative conversation. The subject is free to leave and/or decline any of the officer’s requests at any point.
72. “Specialized CIT Officer” means an officer who has received specialized, comprehensive training on how to respond to persons in mental health crisis, including persons under the influence of drugs or alcohol.
73. “Supervisor” means sworn FPD personnel at the rank of sergeant or above, or anyone acting in those capacities, and non-sworn FPD personnel with oversight responsibility for other personnel.
74. “Unit” means any designated organization of officers within FPD, including area and specialized units.
75. “Vehicle stop” means any instance where an FPD officer directs a civilian operating a motor vehicle of any type to stop and the driver is detained for any length of time.
76. “Will” or “shall” or “agrees to” means that the provision imposes a mandatory duty.
Respectfully submitted this 17th day of March, 2016,
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 Case: 4:16-cv-00180-CDP Doc. #: 15 Filed: 03/28/16 Page: 1 of 3 PageID #: 232

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff,

)

)

v.

) No. 4:16 CV 180 CDP

)

THE CITY OF FERGUSON,

)

)

Defendant.

)

ORDER SETTING PUBLIC HEARING

The parties have filed a joint motion to approve their proposed Consent

Decree resolving this case. The proposed Consent Decree and motion are available

on the court’s website at http://www.moed.uscourts.gov/united-states-america-v-

city-ferguson-case-no-416cv180-cdp Later documents filed in the case will also be

added to the website.

The parties have requested that the court hold a hearing where the public

may be heard about the proposed consent decree. Although the law does not

require or provide for hearing, I agree with counsel that a hearing in this case is in

the interests of justice. I will also consider written comments from the public. To

assure an orderly process, any person wishing to speak or provide written

comments must comply with the rules set out in this order.

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IT IS HEREBY ORDERED that a public hearing to consider input from the community about the proposed consent decree will be held on Tuesday, April 19, 2016 at 9:30 a.m. in Courtroom 3 North, Thomas F. Eagleton Federal Courthouse, 111 South 10th Street, St. Louis Missouri 63102.
Written Comments: Any person wishing to provide written comments about the proposed Consent Decree may do so by filing a written submission of no more than 10 pages with the Clerk of this Court. Written submissions must be received no later than April 12, 2016 at 4:30 p.m. Written submissions may be hand delivered or mailed to:
Clerk of Court United States District Court Thomas Eagleton United States Courthouse 111 South 10th Street St. Louis, Missouri 63102 Re: United States v. City of Ferguson, Case No. 4:16CV180 CDP All written submissions considered will be filed in the Court’s public docket in this case and will be made publicly available on the Court’s website. Persons making written submissions must include their full names on the letter or document they submit, but must not put their addresses on the letter or document itself because addresses will not be made public. Instead, the submitting party’s full name and address must be placed on the envelope in which the document is submitted, and the envelopes will be filed under seal. No emails, telephone calls, or anonymous submissions will be accepted.

Case: 4:16-cv-00180-CDP Doc. #: 15 Filed: 03/28/16 Page: 3 of 3 PageID #: 234
Speaking at the Meeting: Members of the public who wish to speak may do so by appearing at Courtroom 3 North between 8:00 and 9:00 a.m. on the day of the hearing to register to speak. Counsel and parties to the case will be given the opportunity to speak first. Statements by members of the public will be taken in the order people registered and will be limited to five minutes each. All persons speaking must speak from the lectern, state their names, and direct their comments to the court.
Space Limitations: Space is limited in the courtroom. If necessary, the court may require persons to rotate in and out of the courtroom. The courtroom will be open beginning at 8:45 a.m.
Courthouse Rules: All persons entering the courthouse must present a government issued photo ID before they will be allowed to enter; all persons will be screened by a metal detector. No recording or photography is allowed inside the courthouse. No eating, drinking or gum chewing is allowed in the courtroom.
_______________________________ CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
Dated this 28th day of March, 2016.

 
 Case: 4:16-cv-00180-CDP Doc. #: 42 Filed: 04/19/16 Page: 1 of 1 PageID #: 601

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI

COURTROOM MINUTE SHEET CIVIL PROCEEDINGS

Date 4/19/16

Case No. 4:16-CV-00180-CDP

_U_n__it_e_d__S__ta_t_e_s__o_f__A_m__e_r_i_c_a________ v. City of Ferguson, Missouri

Judge Honorable Catherine D. Perry

Court Reporter G. Madden

Deputy Clerk E. Brown

Attorneys for Plaintiff(s) Charles Hart, Jr., Amy Senier, Chiraag Bains, Christy Lopez, Jude Volek
Attorneys for Defendant(s) Stephanie Karr, Dan Webb, Jared Hasten

Parties present for in court hearing. The Court hears comments from 32 people of the public. Attorneys from both sides heard by the court. The Court Grants The Consent Decree.

Attorneys Present : _____________________________

Proceedings commenced:

9:30am-12:32pm

Proceedings concluded:

1:31pm-3:25pm

 
 Case: 4:16-cv-00180-CDP Doc. #: 55 Filed: 12/05/16 Page: 1 of 8 PageID #: 897

UNITED STATES DISTRICT COURT
 EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION


UNITED STATES OF AMERICA, )

)

Plaintiff,

)

)

v.

)

)

THE CITY OF FERGUSON,

)

)

Defendant.

)

Case No.: 4:16-cv-180 Hon. Catherine D. Perry

INDEPENDENT MONITOR INITIAL WORK PLAN

Background

Pursuant to Paragraph 424 of the Consent Decree (the “Consent Decree”) entered into by

the United States Department of Justice (“DOJ”) and the City of Ferguson, Missouri (the “City”)

(together, the “Parties”) effective as of April 19, 2016, this submission constitutes the

Independent Monitor’s (the “Monitor”) initial work plan (the “Work Plan”) for conducting: (a)

reviews of policies, training curricula, and other written materials requiring Monitor review or

approval; (b) evaluations and audits of whether the material requirements of the Consent Decree

have been implemented; and (c) outcome assessments, including the community surveys

required by the Consent Decree. The Monitor was jointly selected by the Parties, which

selection was approved by Judge Catherine D. Perry of the United States District Court of the

Eastern District of Missouri on July 22, 2016 (the “Monitor Selection Date”).

Given the Monitor Selection Date, the Work Plan was due on October 17, 2016. By

consent of the Parties, and for reasons explained below, the Monitor elected to delay submission

until the process was far enough along that a substantive plan could be developed. The Monitor

now submits this Work Plan, with the intent of modifying and expanding it at a future date.

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A. Review of Policies, Training Curricula, and other Written Materials In order “to ensure that officers have the knowledge, skills, and direction necessary to police constitutionally, effectively, and in a manner that promotes both officer and public safety,” Consent Decree Paragraph 41, the Consent Decree requires the City to develop policies, training curricula, and other written materials that incorporate the requirements of the Consent Decree, applicable law, and best practices. The policy development and review process has been slowed by the fact that the Consent Decree Coordinator provided for in Paragraph 454 of the Consent Decree was named relatively recently. Commander Frank McCall, formerly the Chief of the Berkeley, Missouri Police Department, assumed this critical position on October 11, 2016. Pending his hiring, the job of reviewing existing police department and municipal court policies with a view to revising them to conform to the Consent Decree and other legal requirements fell to the police chief, Delrish Moss, who, of course, has many other pressing duties, and the City’s outside counsel, Winston & Strawn, which was effectively serving as Acting City Attorney for some months. With the appointment of Commander McCall, who has pledged to make policy review and revision his immediate-term priority, and, at or about the same time, a new City Attorney, Apollo Carey with the law firm of Lewis Rice, the policy review and revision process has begun to proceed in a more organized and focused fashion. Previously, the Monitor and DOJ had reviewed revised policies as and when provided by the City, and, after arriving at a consensus, our comments were submitted jointly to the City for its consideration in an iterative process intended ultimately to result in their implementation. The Civilian Review Board ordinance referenced in Paragraph 403 of the Consent Decree was the product of this process, and it is scheduled for its first reading by City Council on December 13, 2016.
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Since joining the Ferguson Police Department (“FPD”), Commander McCall has grouped FPD’s numerous legacy policies into categories corresponding to sections of the Consent Decree for the purpose of reviewing and revising them in a priority order. The first policies to be reviewed are those relating to: (1) recruitment; (2) community engagement; (3) use of force; (4) bias-free policing; (5) accountability (the Civilian Review Board ordinance fits into this category); and (6) stops, searches, citations, and arrests. Accordingly, recruitment policies were submitted to the Monitor and DOJ on October 7, 2016, and we provided our comments back to the City on November 17, 2016. Drafts of the duty to report misconduct and duty of candor policies had already been submitted to the Monitor and DOJ prior to the agreement as to which policies should be prioritized for review, and so, both the Monitor and DOJ submitted our comments on them to the City on November 18, 2016. Furthermore, we have agreed that certain City policies now categorized as “Core,” namely, those titled “Department Authority,” “Department Jurisdiction,” “Purpose and Mission,” and “Goals and Objectives,” are so fundamental to the reform process that they, too, should be prioritized for review and revision. Finally, DOJ, with the concurrence of the Monitor, has provided the City with a checklist designed to ensure that, once policies are submitted to DOJ and the Monitor for their consideration, the City has first done its best to ensure that those policies have been revised to conform to the relevant provisions of the Consent Decree, applicable federal and state law, and best practices.
Now that a clear course has been charted for the policy review process, we expect that they will be revised more quickly than in the past, and both the Monitor and DOJ have pledged to provide the City with our comments on drafts as quickly as possible. Consistent with the requirements of the Consent Decree, the Monitor will take steps to ensure that community
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members are appropriately consulted during the policy development process. In the coming months, and in consultation with the Parties, the Monitor will develop an anticipated schedule for the policy review process and update the Work Plan accordingly.
Once policies consistent with the Consent Decree, applicable law, and best practices are in place, the City will develop, likewise in consultation with and with the approval of the Monitor and DOJ, training materials designed to ensure that officers and municipal court officials, as the case may be, are aware of the revised policies, understand them, and implement them.
B. Evaluations and Audits For the reasons explained above, the Monitor is at this point unable as a practical matter, per Paragraph 424(b) of the Consent Decree, to “set out a schedule for conducting a review or audit of each requirement of the [Consent Decree] within the first two years… and a review or audit of each requirement at least annually.” Only a handful of policies have been revised and reviewed to date, and a corresponding training program has yet to begin. Notwithstanding, a few evaluations or audits can be undertaken now. For example, the City represents that the municipal court reform process is well underway, and so the Monitor will begin a review of same in the near term. The methodology for this review will vary depending on the particulars of the provision at issue. In certain cases, the review will consist of confirming that certain process changes have been made. For example, Paragraph 325 of the Consent Decree requires the City to remove the municipal court from the oversight of the City Finance Director and instead to have it report directly to the St. Louis Circuit Court and the Missouri Supreme Court. Another example is Paragraph 336 of the Consent Decree, which requires the City to “revise its online payment system to allow late payments, payment plan installments, and all other court payments to be
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made online except where prohibited by law.” In other cases, the review will consist of merely verifying that certain municipal code provisions have been enacted or repealed as provided for in the Consent Decree. See Paragraph 38(a)-(e), for example. In other cases, the Monitor will need not only to review documents but also to verify that certain important information is provided to citizens. For example, Paragraph 332 requires the City “to provide all individuals charged with a violation of the Ferguson Municipal Code with adequate and reliable information regarding the charges brought against them, the options and requirements for resolving the charges, and the consequences for failing to resolve charges in a timely [manner].” In such instances, the Monitor will not only review documents, but also observe court proceedings and interview defendants and court personnel. Pursuant to Paragraph 426, prior to conducting an audit of a particular section of the Consent Decree, the Monitor will provide the Parties with a proposed methodology for that review.
Additionally, the Monitor has begun to review FPD’s current staffing and schedule, drawing on an initial study by law enforcement consultant, Peter Bellmio. A key challenge for the department is that there are significantly fewer officers today (39) than in August 2014 (54). Given their reduced ranks, some officers have expressed the view that they lack the time to engage in community policing and to take the training courses contemplated by the Consent Decree. The Monitor’s review is intended to thoroughly assess the current situation and determine whether, even with present staffing, there could be changes in procedures, protocols, and scheduling that could free up officers to engage in community policing and to take necessary training courses.
Finally, recognizing that FPD engagement with the community through groups like the Civilian Review Board Task Force, the Neighborhood Policing Steering Committee, the Youth
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Advisory Board, and the various neighborhood associations is still very much a work in progress, the Monitor will begin to review the efficacy of the City’s current efforts and, to the extent necessary or helpful, make recommendations for improvement.
C. Outcome Assessments Paragraph 429 of the Consent Decree requires the Monitor to conduct annual surveys of “public satisfaction” with the police department and municipal court, as well as attitudes among police personnel, municipal court personnel, and “detained arrestees.” The first year surveys would serve as a baseline against which to measure changes in attitudes over the course of the monitorship. The Monitor has completed a draft of the community survey, after soliciting, receiving, and incorporating input from DOJ, the City, and community groups. The Monitor hopes to administer the survey no later than early January. The Monitor has completed a draft of the police survey as well, and will likewise seek input from DOJ, the City, and community groups. As for the views of detained arrestees and municipal court personnel, the Monitor anticipates either distributing the community survey to these two groups or tailoring a version of it specifically for them. As for the outcome assessments called for in Paragraph 435(b)-(i), the Monitor is hopeful that the City maintains the relevant data so that a baseline assessment can now be done and progress, or the lack thereof, going forward can be assessed each year hereafter. The City uses a database maintained by an outside vendor, ITI. After some weeks’ delay, the Monitor has been given access to it, but needs to be able to see it in the same application and method as the City. ITI requires the City to authorize this additional step, and the Monitor is awaiting that authorization. Presuming the database contains the relevant information and it can be extracted
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from the database, we will begin to compile baseline metrics like, for example, the number of stops, searches, citations, and arrests by race and other protected characteristics, immediately. Conclusion
The Monitor plans to revise and update this initial work plan once additional policies (and, when applicable, training materials) are available to be reviewed; once additional provisions of the Consent Decree are purportedly implemented so that the Monitor can attempt to verify such implementation; and once it can be determined whether the City has and maintains the necessary information to make the annual outcome assessments called for in the Consent Decree. To the extent practicable, the updated work plan, again, will include estimated timelines for the completion of the Monitor tasks reflected therein.

Date: December 5, 2016

Respectfully submitted,
SPECIAL MASTER CLARK ERVIN
/s/ Clark Kent Ervin
Clark Kent Ervin (DC Bar # 1007825) SQUIRE PATTON BOGGS (US) LLP 2550 M Street, NW Washington, District of Columbia 20037 202-457-5234

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Case: 4:16-cv-00180-CDP Doc. #: 55 Filed: 12/05/16 Page: 8 of 8 PageID #: 904 CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that the foregoing was filed electronically on December 5, 2016 with the Clerk of the Court for the United States District Court for the Eastern District of Missouri, and was served by ECF notice by operation of the Court’s electronic filing system.
/s/ Clark Kent Ervin
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 Case: 4:16-cv-00180-CDP Doc. #: 51 Filed: 10/17/16 Page: 1 of 9 PageID #: 852

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA Plaintiff, v.
THE CITY OF FERGUSON Defendant.

)

)

)

)

)

Case No: 4:16-cv-180

)

)

Hon. Catherine D. Perry

)

)

CITY OF FERGUSON’S INITIAL STATUS REPORT Defendant, the City of Ferguson (“the City”), respectfully submits this Initial Status

Report regarding its progress to date on implementing the requirements set forth in the Consent

Decree.

I. Background

This Court entered on order approving the Consent Decree on April 19, 2016. Paragraph

456 of the Consent Decree provides that,

Within 180 days of the Effective Date, FPD will file with the Court, with a copy to the Monitor and DOJ, a status report. This report will delineate steps taken by FPD during the reporting period to implement this Agreement; FPD’s assessment of the status of its progress; plans to correct any problems; and responses to any concerns raised in the Monitor’s previous semi-annual report. Following this initial status report, FPD will file a status report every six months thereafter while this Agreement is in effect.

(Consent Decree, ¶ 456). Under the terms of the Consent Decree, the effective date was April

19, 2016, and the Consent Decree requires that the City file its initial status report on October 17,

2016. (Id., ¶¶ 456, 465(27)).

The following discussion identifies milestone events that have been accomplished within

the initial six month period following the April 19, 2016 effective date. The discussion identifies

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significant steps that have been undertaken toward meeting deadlines set forth in the Consent Decree both before and after the September 7, 2016 status hearing before this Court. This discussion references the progress described in the Memorandum for the Court Outlining the Timeline for Consent Decree Requirements (ECF No. 49), which was filed on September 2, 2016, and subsequent efforts to achieve compliance with the provisions of the Consent Decree.1 This discussion primarily focuses on efforts taken to date to implement the reforms set forth in the Consent Decree in the Ferguson Police Department (“FPD”) and the Ferguson Municipal Court. II. The City’s Efforts To Comply With The Terms of the Consent Decree Prior To The
September 7, 2016 Status Hearing A. Appointment Of The Monitor On July 22, 2016, the Court approved the selection of Clark K. Ervin of Squire Patton Boggs LLP to serve as the monitor overseeing implementation of the Consent Decree. The joint selection of Mr. Ervin followed several rounds of telephone and in-person interviews, including a final interview that took place in Ferguson, Missouri on July 12, 2016 where members of the community were able to ask Mr. Ervin, his team, and the other finalists questions. Following Mr. Ervin’s appointment to serve as the monitor, the parties had introductory telephone conference calls in August 2016, and on September 8, 2016, Mr. Ervin and his team and the Department of Justice met with various employees of the City of Ferguson, members of the FPD, Ferguson Municipal Judge Micah Hall, and the members of the Ferguson City Council. B. The Ferguson Police Department Ferguson Police Chief Delrish Moss started on May 11, 2016 following a nationwide search. Chief Moss quickly familiarized himself with the then upcoming deadlines of the
1 The City also incorporates the Memorandum for the Court Outlining the Timeline for Consent Decree Requirements by reference in this Initial Status Report.
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Consent Decree and worked expeditiously to make sure that the City complied with many of the deadlines that came due over the first 120 days following the effective date. For instance, Chief Moss conducts monthly command staff meetings regarding community oriented policing and has discussed the provisions of the Consent Decree with FPD officers. (Consent Decree, ¶ 28). Additionally, Chief Moss was the primary drafter of many new FPD plans and policies, namely those that address recruitment of new officers, background investigations for the hiring of new officers, internal investigations, the duty of candor within the FPD, the duty to report misconduct, and non-retaliation against those who make complaints. (Id., ¶¶ 288, 362, 384, 397).
C. The Ferguson Municipal Court Over the past two years, approximately $1.5 million in fines in the Ferguson Municipal Court have been stayed, and more than 30,000 individual open cases have been dismissed, which is in accord with the comprehensive amnesty provision outlined in the Consent Decree. (Consent Decree, ¶¶ 326-27). Additionally, consistent with the Consent Decree, there are no pending failure to appear charges; any pending failure to appear charges were previously dismissed. (Id.) The City has also set up an online payment system that accepts payments at any time and in any amount. (Id., ¶¶ 336-37). The City has also taken great efforts to ensure that defendants appearing in the Ferguson Municipal Court are apprised of the charges that they face and the options for resolving a case. The City has ensured that defendants in the Ferguson Municipal Court have the option to make payments on an installment basis, and all defendants are offered the opportunity to perform community service in lieu of paying a fine. (Id., ¶ 339-40, 343). The City has also modified the way in which warrants are issued for municipal offenses.
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(Id., ¶ 348). Namely, if a defendant misses an initial court appearance, the Municipal Court sends the defendant a summons letter with a new court date. If that defendant misses a second court date, the Municipal Court schedules a show cause hearing. A warrant is issued only if the defendant misses that show cause hearing. If a defendant who pleads guilty to a municipal offense misses a scheduled payment, the Municipal Court schedules a show cause hearing as to why the payment was not made on time. A defendant can appear at the Municipal Court and request a continuance of that show cause hearing with the Clerk. A warrant is not issued if a defendant appears at the show cause hearing and explains that he or she is unable to make a payment in accord with the payment plan. In that scenario, a defendant may receive an extension by which to make the payment, receive a new payment plan, or have the fine converted to community service. If, however, a defendant does not request a continuance and misses the show cause hearing, a warrant is issued. III. The City’s Efforts To Comply With The Terms Of The Consent Decree Following
The September 7, 2016 Status Hearing A. The City’s New Hires Since the status hearing on September 7, 2016, the City has hired key individuals to help with the implementation of the consent decree. At the time of the status hearing, the positions discussed infra were either vacant or were filled on an interim basis. The City is optimistic that the hiring of individuals to fill these positions will allow it to expeditiously move forward with meeting the requirements detailed in the Consent Decree. Namely, on October 1, 2016, the City hired a new City Prosecutor, Lee Goodman. Mr. Goodman will also work with Mr. Ervin and his team and the Department of Justice in connection with the provisions of the Consent Decree that focus on the prosecution of ordinance violations in the Ferguson Municipal Court. The City has already started to take efforts to ensure
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that the Municipal Court operates independently of the City Prosecutor. (Consent Decree, ¶ 357). For example, separate files are maintained for the City Prosecutor and the Municipal Court.
On October 10, 2016, Commander Frank McCall began with the FPD. Commander McCall was previously with the Berkeley Police Department. His responsibilities include serving as the Consent Decree Coordinator and assisting Chief Moss with drafting and/or revising existing policies to conform with the requirements of the Consent Decree. As the Consent Decree Coordinator, Commander McCall will also serve as a liaison between Mr. Ervin and his team and the Department of Justice and will fulfill the other roles as specified in the Consent Decree. (See Consent Decree, ¶ 454).
On October 11, 2016, the City also retained a new City Attorney, Apollo Carey of the law firm Lewis Rice LLC. Mr. Carey will also coordinate with Mr. Ervin and his team and the Department of Justice in ensuring that the City timely institutes the requirements delineated in the Consent Decree. For instance, Mr. Carey will work with Mr. Ervin and his team and the Department of Justice in revising the Civilian Review Board (“CRB”) ordinance discussed infra and revising the Memorandum of Understanding with the Ferguson-Florissant School District. (Consent Decree, ¶¶ 211, 404). Additionally, on October 11, 2016, the City also hired a new City Clerk, Octavia Pittman.
B. Status Updates Provided To Mr. Ervin And His Team And The Department Of Justice
Following the September 7, 2016 status hearing, representatives from the City, Mr. Ervin and his team, and the Department of Justice have had weekly status calls to discuss the City’s progress on the Consent Decree. While the Consent Decree calls for a monthly status call (Consent Decree, ¶ 440), these weekly calls have allowed for an open line of communication
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between all parties and served as a means to update Mr. Ervin and the Department of Justice on the City’s most recent progress with implementing the Consent Decree.
C. Additional Work Toward Meeting The 180-Day Deadlines In The Consent Decree
The City has continued its community engagement efforts, and has worked toward meeting the 180-day deadlines in the Consent Decree that address this topic. Namely, the City is in the process of developing how to set up the small group facilitated discussions between officers of the FPD and the community. (Consent Decree, ¶ 19). The City has scheduled an event on October 21, 2016 through Urban Strategies, which will include a roundtable discussion with members of the FPD attending. The City is also going to work with Urban Strategies about outreach into and creating a dialogue with the neighborhood associations in Ferguson. (Id., ¶ 25).
The City has also developed a policy on creating correctible violations for traffic offenses wherein an individual who receives a ticket can fix the issue that caused the violation in lieu of paying a fine. (Id., ¶ 94). The City has eliminated all previous stop orders or “wanteds” for municipal offenses, and only issues a stop order or “wanted” when necessary in the pursuit of state charges where probable cause exits in accordance with requests from the County Prosecuting Attorney. (Id., ¶¶ 96-97). The City is also in communications with its information technology vendor to develop a means to collect data on stops and seizures, use-of-force practices, and to ensure that all allegations of misconduct against FPD officers are received, documented, and tracked. (Id., ¶¶ 109, 195, 369).
The City has developed a policy for internal investigations of complaints received about the FPD. (Id., ¶ 384, 397). The City has also appointed Lt. Dilworth to serve as the Crisis Intervention Coordinator to facilitate communication between the FPD and the local mental
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health community, and the City has also began to develop policies for an annual assessment of its crisis intervention model. (Id., ¶¶ 197, 206). All FPD officers are equipped with bodycamera and microphones and the City has developed a policy on the storage and retention of this footage. (Id., ¶¶ 245, 250). The FPD has also developed a staffing plan that follows the nationally accepted span of control model. (Id., ¶ 256). And, the City has also drafted a recruitment plan to target the hiring of new officers. (Id., ¶ 282).
The City has also undertaken efforts to ensure that the various entities called for by the Consent Decree are established in a timely manner. Specifically, the Neighborhood Policing Steering Committee (“NPSC”) has been formed. (Id., ¶ 21). Membership in the NPSC is open to all who wish to attend. Additionally, the City plans to introduce an ordinance officially establishing the NPSC within the next month. Moreover, the City has worked with Mr. Ervin and the Department of Justice to revise the existing CRB ordinance. (Id., ¶ 404). The City also plans to introduce the revised CRB ordinance within the next month so that the CRB can begin its work. Last, the City has also worked on establishing a policy regarding the creation of the Force Review Board (“FRB”). (Id., ¶ 189). The City will work with Mr. Ervin and his team and the Department of Justice regarding the membership of the FRB. (Id.) IV. The City’s Assessment Of Its Progress To Date
The City has worked expeditiously over the past six months to implement the requirements as detailed in the Consent Decree. The City is pleased with its progress to date, especially given the many key vacancies that it also had to fill over the past several months. The City is hopeful that it now has a more fulsome team in place that will be able to implement the deadlines in the Consent Decree in a timely manner. The City will continue its goal of ensuring constitutional policing and court practices to serve and protect all members of its community.
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The City will also continue to work actively with Mr. Ervin and his team and the Department of Justice to meet the goals set forth in the Consent Decree and to substantiate the aforementioned progress that it has made to date.

Date: October 17, 2016

Respectfully submitted,
THE CITY OF FERGUSON
/s/ Jared L. Hasten
DAN K. WEBB (#2954087IL) JARED L. HASTEN (#6296695IL) Winston & Strawn LLP 35 West Wacker Drive Chicago, Illinois 60601 (312) 558-5600
Counsel for The City of Ferguson

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Case: 4:16-cv-00180-CDP Doc. #: 51 Filed: 10/17/16 Page: 9 of 9 PageID #: 860 CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that the foregoing was filed electronically on October 17, 2016 with the Clerk of the Court for the United States District Court for the Eastern District of Missouri, Eastern District, and was served by ECF notice by operation of the Court’s electronic filing system.
/s/ Jared L. Hasten
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 Case: 4:16-cv-00180-CDP Doc. #: 48 Filed: 07/22/16 Page: 1 of 1 PageID #: 829

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff, v.
THE CITY OF FERGUSON, Defendant.

) ) ) ) ) Case No. 4: 16 CV 180 CDP ) ) ) ) )

ORDER

After careful review,

IT IS HEREBY ORDERED that the joint motion for approval of monitor

selection [47] is granted, and the Squire Patton Boggs team, led by Clark Ervin, is

appointed as Monitor of the Consent Decree.

IT IS FURTHER ORDERED that there will be a status hearing on

Wednesday, September 7, 2016 at 1:00 p.m. in Courtroom 14-South to provide

the parties and the Monitor with an opportunity to update the Court on the status of

implementation of the Consent Decree.

Dated this 22nd day of July, 2016.

_______________________________ CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE

 
 Case: 4:16-cv-00180-CDP Doc. #: 47-1 Filed: 07/20/16 Page: 1 of 7 PageID #: 790

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE CITY OF FERGUSON,

)

)

Defendant.

)

)

__________________________________ )

NO. 4:16-cv-000180-CDP JUDGE CATHERINE D. PERRY

MEMORANDUM IN SUPPORT OF JOINT MOTION FOR APPROVAL OF CONSENT DECREE MONITOR SELECTION
AND FOR A STATUS HEARING

Plaintiff, the United States of America, and Defendant, the City of Ferguson (“City” or “Ferguson”) (collectively, “the Parties”), have selected the Squire Patton Boggs (“SPB”) monitoring team, led by Clark Ervin, to serve as Independent Monitor of the Consent Decree (“Decree”) [ECF No. 41]. Consistent with Paragraph 419 of the Decree, the Parties respectfully request that the Court approve the Parties’ selection.
The Parties selected the SPB team following a thorough selection process that was jointly developed by the Parties and that included opportunities for community members to provide input prior to the Parties’ selection of the monitoring team. This process made clear that Mr. Ervin and the SPB team are highly qualified to effectively fulfill the responsibilities of the Monitor set forth in paragraphs 424-41 of the Decree. The input that the Parties received from community members also indicated consistent support for the SPB team, with no community member or group recommending against selection of this team.

Case: 4:16-cv-00180-CDP Doc. #: 47-1 Filed: 07/20/16 Page: 2 of 7 PageID #: 791
I. SELECTION PROCESS The Consent Decree provides that the Parties will jointly select an Independent Monitor (“Monitor”), “which will be a team of individuals highly qualified in policing, civil rights, monitoring, and related areas, to assess and report on whether the requirements of this Agreement have been implemented, and whether this implementation is resulting in constitutional and otherwise lawful policing and administration of justice, and increased community trust between the public and the Ferguson Police Department and Court.” Decree at ¶ 416. The Decree further provides that the Parties’ selection will be made pursuant to a process jointly established by the Parties, and will be subject to the approval of the Court. Id. at ¶ 419. Consistent with these requirements, on May 12, 2016, the Parties issued a Request for Applications (“RFA”) [attached as Exhibit A] that set forth the responsibilities and required qualifications of the Monitor. The United States sent this RFA to a distribution list of over 100 individuals and entities, including firms that have applied for monitorships in the past and community groups working in Ferguson. The Parties also posted the RFA on their respective websites and encouraged its broad dissemination. The application period closed on June 10, 2016, with nine individuals or groups having applied to serve as Monitor. The Parties conferred on June 17 and selected seven applicants for telephone interviews, which were conducted on June 27 and 28. On June 30, the Parties conferred and selected four finalists to travel to Ferguson for in-person interviews and a public forum, which were held on July 12, 2016. On July 15, the Parties conferred and agreed to select the Squire Patton Boggs team led by Clark Ervin. The Parties solicited and received a significant amount of community feedback regarding the candidates throughout this process. The Parties published the nine monitoring proposals
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received on their respective websites and invited community members to review those materials and provide input on the applicants. One community group surveyed applicants on particular issues, and the Parties made the applicants’ survey responses available to all members of the public. The four finalists also participated in a public forum on July 12, 2016, during which each team made a presentation and fielded questions directly from community members.
II. QUALIFICATIONS OF THE PROPOSED SQUIRE PATTON BOGGS TEAM The Squire Patton Boggs team consists of a group of individuals that together have the
multidisciplinary experience and expertise necessary to successfully monitor implementation of the Consent Decree. Mr. Ervin has extensive monitoring experience and has served as Inspector General for both the United States Department of Homeland Security and the United States Department of State. The team also includes nationally-recognized policing experts (Commissioner Ed Davis and Professor Delores Jones-Brown); a highly-qualified data analytics team (led by Frances McLeod); and a locally-based expert in municipal court practices, with particular expertise in Missouri courts and familiarity with the St. Louis area (Professor Kim Norwood).
We have listed below the core members of Mr. Ervin’s team, along with a brief summary of their relevant experience:
 Clark Ervin. Mr. Ervin is a partner in the Government Investigations & White Collar Practice Group at Squire Patton Boggs. Prior to joining the firm, he served as the Inspector General of the United States Department of State and the United States Department of Homeland Security. At these agencies, Mr. Ervin conducted scores of inspections and audits, and made hundreds of recommendations to make those agencies more effective, efficient, and economical. 3

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 Commissioner Edward Davis. Commissioner Davis has over 30 years of law enforcement experience, including decades spent leading the reform of both the Boston Police Department and the Lowell Police Department. A nationally-recognized expert in transparency, technology, community relations, accountability, and training, Commissioner Davis is a member of the team monitoring the settlement of the lawsuit against the New York City Police Department concerning stop-and-frisk practices, Floyd v. City of New York, 08-cv-1034 (S.D.N.Y. filed Jan. 31, 2008).
 Dr. Deborah Jones-Brown. Dr. Delores Jones-Brown is a Professor in the Department of Law, Police Science and Criminal Justice Administration at John Jay College of Criminal Justice, City University of New York. She is the founding director of the John Jay College Center on Race, Crime and Justice and has published and trained law enforcement on topics such as race relations and policing; stop, question, and frisk practices; use of force; community policing; and alternative policing.
 Professor Kimberly Norwood. Professor Norwood has taught at the Washington University School of law for over 25 years. She is an expert in implicit bias, having trained judges, lawyers, and legislators on this subject. Most recently, Professor Norwood served as a member of the Missouri Supreme Court’s Racial and Ethnic Fairness Commission, which engaged with Missouri citizens to examine and review current court practices and recommended measures to help assure fairness, impartiality, equal access and full participation for racial and ethnic minorities in the judicial process and in the practice of law. She also served on the Missouri Supreme Court’s working group for municipal court reform.
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 Sam Rosenthal. Mr. Rosenthal is a partner at Squire Patton Boggs, where he leads the Government Investigations & White Collar Practice Group. Before entering private practice, Mr. Rosenthal served as Chief of the Appellate Section of the U.S. Department of Justice’s Criminal Division.
 Frances McLeod. Frances McLeod is a founding partner and co-founder of Forensic Risk Alliance (“FRA”). She has over 23 years of experience advising diverse clients on numerous issues. She has been involved in significant monitoring projects requiring the collection and analysis of complex data.
The qualifications of these team members are set forth in greater detail in the proposal submitted by Squire Patton Boggs in response to the RFA [attached as Exhibit B].1
During the interview process as well as the public forum, Mr. Ervin and the Squire Patton Boggs team demonstrated a clear understanding of the Consent Decree’s requirements, the role of the Monitor, the value of local input, and the need for objective and credible oversight of the implementation process. Mr. Ervin’s team is well-positioned to successfully monitor every aspect of the Decree, and has expressed a strong commitment to seeing this project to its effective completion. Mr. Ervin’s team also demonstrated professionalism and integrity, and is free from any actual or apparent conflicts of interest.

1

In addition, the Parties have spoken with Mr. Ervin and Ms. Natashia Tidwell about the possibility of

adding Ms. Tidwell, who interviewed as part of another team, to the Squire Patton Boggs team. During the selection

process, Ms. Tidwell was identified by both Parties as having expertise that is particularly relevant to the

responsibilities of the Monitor in this case. Ms. Tidwell served as a patrol officer, school resource officer, detective,

and lieutenant in the Cambridge (MA) Police Department; attended law school and served as Trial Attorney with the

U.S. Department of Justice, Criminal Division, Public Integrity Section and as Assistant U.S. Attorney; and served

as an Associate Professor of Law. She is now counsel in the white collar and civil litigation departments of Collora

LLP, and serves on the Boston Police Department’s Ombudsman Oversight Panel. While Mr. Ervin’s team is

sufficiently strong even without the addition of Ms. Tidwell, her addition would complement Mr. Ervin’s team and

provide tremendous value. Mr. Ervin is currently in communication with Ms. Tidwell regarding the possibility of

her being added to the Squire Patton Boggs team.

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Case: 4:16-cv-00180-CDP Doc. #: 47-1 Filed: 07/20/16 Page: 6 of 7 PageID #: 795
The Squire Patton Boggs team has also already begun building a rapport with members of the Ferguson community. The feedback that the Parties received indicated that the selection of SPB is supported by a diverse range of community members, with no community member or group opposing SPB’s selection.
III. REQUEST FOR STATUS HEARING The Parties also respectfully request that the Court hold a status hearing in order to provide the Parties and the Monitor (if approved by the Court) with an opportunity to update the Court on the status of Consent Decree implementation. The Parties and Mr. Ervin have conferred regarding scheduling, and the Parties respectfully propose that the hearing be held on September 7, 2016 at 1:00 P.M.
IV. CONCLUSION For the foregoing reasons, the Parties respectfully move this Court to approve the Squire Patton Boggs team, led by Clark Ervin, as Monitor of the Consent Decree.
Respectfully submitted this 20th day of July, 2016.
For the UNITED STATES OF AMERICA:
VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division
STEVEN H. ROSENBAUM Chief, Special Litigation Section _/s/ Christy E. Lopez____________________
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Case: 4:16-cv-00180-CDP Doc. #: 47-1 Filed: 07/20/16 Page: 7 of 7 PageID #: 796
CHRISTY E. LOPEZ Deputy Chief, Special Litigation Section 601 D Street NW Washington, DC 20004 (202) 514-2000 DC Bar Number 473612
_/s/ Jude Volek_______________________ JUDE VOLEK Special Counsel, Special Litigation Section 601 D Street NW Washington, DC 20004 (202) 353-1077 Permanent Bar Number 10041483N NY Bar Reg. Number 10041483
CHARLES HART AMY SENIER Trial Attorneys, Special Litigation Section
CHIRAAG BAINS Senior Counsel, Civil Rights Division
For the CITY OF FERGUSON:
/s/ Dan K. Webb DAN K. WEBB (# 2954087IL) JARED L. HASTEN (#6296695IL) Winston & Strawn LLP 35 West Wacker Drive Chicago, Illinois 60601 (312) 558-5600
KEVIN M. O’KEEFE Curtis, Heinz, Garrett & O’Keefe 130 South Bemiston Suite 200 Clayton, Missouri 63015
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 Case: 4:16-cv-00180-CDP Doc. #: 47 Filed: 07/20/16 Page: 1 of 3 PageID #: 787

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE CITY OF FERGUSON,

)

)

Defendant.

)

)

____________________________________)

NO. 4:16-cv-000180-CDP JUDGE CATHERINE D. PERRY

JOINT MOTION FOR APPROVAL OF CONSENT DECREE MONITOR SELECTION AND FOR A STATUS HEARING

Plaintiff, the United States of America, and Defendant, the City of Ferguson (collectively, “the Parties”), have jointly selected the Squire Patton Boggs monitoring team, led by Clark Ervin, to serve as Monitor of the Consent Decree (“Decree”) [Docket No. 41]. Consistent with Paragraph 419 of the Decree, the Parties respectfully move the Court to approve the Parties’ selection.
The Parties also respectfully move the Court to set a status hearing for September 7, 2016 at 1:00 P.M. to provide the Parties and the Monitor with an opportunity to update the Court on the status of implementation of the Consent Decree.
A memorandum in support of this Motion is attached.

Case: 4:16-cv-00180-CDP Doc. #: 47 Filed: 07/20/16 Page: 2 of 3 PageID #: 788
Respectfully submitted this 20th day of July, 2016.
For the UNITED STATES OF AMERICA:
VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division STEVEN H. ROSENBAUM Chief, Special Litigation Section __/s/ Christy E. Lopez__________ CHRISTY E. LOPEZ Deputy Chief, Special Litigation Section 601 D Street NW Washington, DC 20004 (202) 514-2000 DC Bar Number 473612 __/s/ Jude Volek_______________ JUDE VOLEK Special Counsel, Special Litigation Section 601 D Street NW Washington, DC 20004 (202) 353-1077 Permanent Bar Number 10041483N NY Bar Reg. Number 10041483 CHARLES HART AMY SENIER Trial Attorneys, Special Litigation Section CHIRAAG BAINS Senior Counsel, Civil Rights Division
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Case: 4:16-cv-00180-CDP Doc. #: 47 Filed: 07/20/16 Page: 3 of 3 PageID #: 789 For the CITY OF FERGUSON: /s/ Dan K. Webb DAN K. WEBB (# 2954087IL) JARED L. HASTEN (#6296695IL) Winston & Strawn LLP 35 West Wacker Drive Chicago, Illinois 60601 (312) 558-5600 KEVIN M. O’KEEFE Curtis, Heinz, Garrett & O’Keefe 130 South Bemiston Suite 200 Clayton, Missouri 63015
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 Investigación del Departamento de Policía de Ferguson
Departamento de Justicia de los Estados Unidos
División de Derechos Civiles
4 de marzo de 2015
Resumen y Recomendaciones
I. RESUMEN DEL INFORME
La División de Derechos Civiles del Departamento de Justicia de los Estados Unidos abrió su investigación del Departamento de Policía de Ferguson («FPD», por sus siglas en inglés) el 4 de septiembre de 2014. Esta investigación se inició conforme a la cláusula de patrón o práctica de la Ley de Control de Delitos Violentos y Entidades del Orden Público de 1994, Título 42 del Código de los Estados Unidos, Sección 14141, la Ley General del Control de Delitos y de Calles Seguras de 1968, Título 42 del Código de los Estados Unidos, Sección 3789d («Ley de Calles Seguras») y el Título VI de la Ley de Derechos Civiles de 1964, Título 42 del Código de los Estados Unidos, Sección 2000d («Título VI»). Esta investigación ha revelado la existencia de un patrón o una práctica de conducta ilegal dentro del Departamento de Policía de Ferguson que transgrede las enmiendas número uno, cuatro y catorce de la Constitución de los Estados Unidos y la Ley estatutaria federal.
A lo largo de la investigación, entrevistamos a funcionarios de la ciudad, entre ellos el Administrador Municipal John Shaw, el Alcalde James Knowles, el Jefe de Policía Thomas Jackson, el Juez Municipal Ronald Brockmeyer, el Secretario del Tribunal Municipal, el Director de Finanzas de Ferguson, la mitad de los agentes juramentados del FPD y otros. Colectivamente, dedicamos aproximadamente 100 días/persona en Ferguson. Participamos en viajes de acompañamiento con agentes de guardia, revisamos más de 35,000 páginas de registros policiales, así como también miles de correos electrónicos y otros materiales electrónicos proporcionados por el departamento de policía. Con la ayuda de expertos en estadística, analizamos los datos sobre paradas, registros, notificaciones y aprehensiones del FPD, así como también datos recolectados por el tribunal municipal. Observamos cuatro sesiones distintas del Tribunal Municipal de Ferguson, entrevistamos a decenas de personas imputadas de delitos locales y examinamos estudios de terceros con respecto a las prácticas del tribunal municipal en Ferguson y, de manera más amplia, en el Condado de St. Louis. Al igual que en todas nuestras investigaciones, procuramos hacer participar a la comunidad local, llevando a cabo cientos de entrevistas en persona y por teléfono con personas que residen en Ferguson o que han tenido interacciones con el departamento de policía. Nos pusimos en contacto con diez asociaciones de barrios y nos reunimos con todos los grupos que respondieron a nuestro contacto, así como también a varios otros grupos comunitarios y organizaciones de defensa del pueblo. A lo largo de la investigación, dependimos de dos jefes de policía que nos acompañaron a Ferguson y quienes entrevistaron a funcionarios de la ciudad y de la policía, hablaron con miembros de la comunidad y examinaron las políticas y los informes de incidentes del FPD.
Agradecemos a los funcionarios de la ciudad y a los agentes policiales que cooperaron con esta investigación y que nos proporcionaron información sobre la operación del departamento de policía, incluyendo el tribunal municipal. A pesar de nuestros hallazgos sobre cómo Ferguson aborda el tema del orden público de Ferguson y la cultura policial que crea, encontramos que muchos agentes de policía de Ferguson y otros empleados de la ciudad son servidores públicos dedicados que luchan día a día para
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desempeñar sus deberes legalmente y con respeto para todos los miembros de la comunidad de Ferguson. No se puede destacar lo suficiente la importancia de su a menudo abnegada labor diaria.
También estamos agradecidos a los muchos miembros de la comunidad de Ferguson que se reunieron con nosotros para compartir sus experiencias. En el curso de nuestras múltiples conversaciones con los residentes de Ferguson de toda la ciudad se hizo obvio que muchos residentes, tanto negros como blancos, acogen genuinamente la diversidad de Ferguson y desean resurgir de los sucesos de los últimos meses como una comunidad verdaderamente abierta y unida. Este informe pretende fortalecer esos esfuerzos al reconocer los daños causados por las prácticas del orden público de Ferguson de modo que se puedan entender mejor y superar dichos daños.
Las prácticas del orden público de Ferguson están moldeadas por el enfoque de la ciudad en los ingresos públicos en vez de las necesidades de seguridad pública. Este énfasis en los ingresos públicos ha comprometido el carácter institucional del departamento de policía de Ferguson, contribuyendo a la existencia de un patrón de vigilancia policial inconstitucional y también ha dado forma a su tribunal municipal, lo que ha llevado al uso de procedimientos que plantean preocupaciones con respecto al proceso debido e infligen daños innecesarios a los miembros de la comunidad de Ferguson. Además, tanto las prácticas policiales como las del tribunal municipal reflejan y agravan sesgos raciales existentes, incluidos los estereotipos raciales. Los propios datos de Ferguson establecen claras desigualdades raciales que afectan adversamente a los afroestadounidenses. Las pruebas muestran que la intención discriminatoria es parte de la razón de estas desigualdades. A lo largo del tiempo, las prácticas policiales y del tribunal municipal de Ferguson han sembrado una profunda desconfianza entre partes de la comunidad y el departamento de policía, socavando la legitimidad de las entidades del orden público entre los afroestadounidenses en particular.
Enfoque en la generación de ingresos públicos
La ciudad presupuesta importantes aumentos en multas y cobros municipales cada año, exhorta a la policía y al personal del tribunal a proveer esos aumentos de ingresos y vigila de manera estrecha si se logran tales aumentos o no. Los funcionarios de la ciudad de manera rutinaria urgen al Jefe Jackson a generar más ingresos públicos mediante la ejecución de la ley. Por ejemplo, en marzo de 2010, el Director de Finanzas de la Ciudad le escribió al Jefe Jackson diciendo que «a menos que la imposición de multas se redoble significativamente antes de fin de año, será difícil incrementar significativamente la recaudación el próximo año. . . Dado que estamos ante un déficit sustancial de los impuestos a las ventas, no es un asunto insignificante». De modo similar, en marzo del 2013, el Director de Finanzas le escribió al Administrador Municipal: «Se prevé que los cobros del tribunal aumenten en alrededor del 7,5 %. Le pregunté al Jefe de Policía si el DP podía conseguir un aumento del 10 %. Él me indicó que podía tratar de hacerlo». La importancia de enfocarse en la generación de ingresos públicos se les comunica a los agentes del FPD. Los agentes de policía de Ferguson de todos los rangos nos dijeron que la generación de ingresos públicos se recalca bastante dentro del departamento de policía y que el mensaje viene del liderazgo de la Ciudad. Las pruebas que examinamos respaldan esta percepción.
Prácticas Policiales
El énfasis de la ciudad en la generación de ingresos públicos tiene un efecto profundo en el enfoque del FPD hacia el orden público. Las asignaciones y los horarios de patrullaje están dirigidos a la ejecución agresiva del código municipal de Ferguson, dándose insuficiente consideración a si las estrategias de ejecución promueven la seguridad pública o socavan innecesariamente la confianza y cooperación de la comunidad. Las evaluaciones y promociones de los agentes dependen excesivamente de la «productividad», es decir, del número de citaciones expedidas. En parte, como consecuencia de las prioridades de la ciudad y del FPD, muchos agentes dan la apariencia de ver a algunos residentes,
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especialmente a los que viven en los barrios predominantemente afroestadounidenses de Ferguson, menos como ciudadanos a ser protegidos y más como delincuentes potenciales y fuentes de ingresos públicos.
Esta cultura dentro del FPD influye en las actividades de los agentes en todas las áreas de vigilancia policial, más allá de la sola imposición de multas. Los agentes esperan y exigen cumplimiento incluso cuando no tienen la autoridad legal para hacerlo. Están inclinados a interpretar el ejercicio de los derechos de libre expresión como desobediencia ilegal, movimientos inocentes como amenazas físicas, señales de enfermedad mental o física como beligerancia. Los supervisores y el liderazgo del Departamento de Policía hacen muy poco para asegurar que los agentes actúen de conformidad con la ley y la política, y rara vez responden de manera significativa a las quejas de los ciudadanos civiles respecto a la falta de ética de los agentes. El resultado es un patrón de paradas de vehículos o personas sin sospecha razonable y aprehensiones sin causa fundamentada en violación de la Cuarta Enmienda; la vulneración de la libre expresión, así como represalias por la expresión protegida, en violación de la Primera Enmienda; y el uso de fuerza excesiva en violación de la Cuarta Enmienda.
Incluso la mala conducta relativamente rutinaria de los agentes de policía de Ferguson puede tener consecuencias significativas para las personas cuyos derechos se transgreden. Por ejemplo, en el verano de 2012, un hombre afroestadounidense de 32 años de edad se quedó sentado en su carro refrescándose luego de jugar baloncesto en un parque público de Ferguson. Un agente de la policía se estacionó detrás del carro del hombre, bloqueándole la salida y le exigió que le diera su número de seguro social y su identificación. Sin ninguna causa, el agente acusó al hombre de ser pedófilo, haciendo referencia a la presencia de niños en el parque, y le ordenó que saliera de su carro para que le hiciera un cacheo, a pesar de que el agente no tenía razón alguna para creer que el hombre estaba armado. El agente también le pidió al hombre permiso para registrar su carro. El hombre objetó a que lo hiciera, mencionando sus derechos constitucionales. Como respuesta a esto, el agente aprehendió al hombre, supuestamente a punta de pistola, imputándole ocho transgresiones del código municipal de Ferguson. Un cargo, Hacer una Declaración Falsa, fue por proporcionarle inicialmente la versión corta de su nombre (por ej., «Mike» en vez de «Michael») y una dirección que, aunque era legítima, era diferente de la que aparecía en su licencia de conducir. Otro cargo fue por no llevar puesto el cinturón de seguridad, a pesar de que se encontraba sentado en un carro estacionado. El agente también le imputó el cargo de tener una licencia de conductor vencida y de no tener una licencia de conductor en su poder. El hombre nos dijo que, a consecuencia de estos cargos, él perdió su trabajo como contratista del gobierno federal que había mantenido durante años.
Prácticas del Tribunal Municipal
Ferguson ha permitido que su enfoque en la generación de ingresos públicos comprometa fundamentalmente el papel que desempeña el tribunal municipal de Ferguson. El tribunal municipal no actúa como árbitro neutral de la ley o una verificación de la conducta policial ilícita. Más bien, el tribunal usa su autoridad judicial principalmente como el medio para conminar el pago de multas y cobros que promueven los intereses financieros de la ciudad. Esto ha conllevado a prácticas judiciales que transgreden los requisitos de debido proceso y protección equitativa garantizados por la Decimocuarta Enmienda. Las prácticas del tribunal también imponen daños innecesarios, abrumadoramente sobre las personas afroestadounidenses, y van en contra de la seguridad pública.
De forma sorprendente, el tribunal expide órdenes de aprehensión municipales no con base en las necesidades de seguridad pública sino más bien como una respuesta de rutina a las comparecencias no realizadas y los pagos de multas adeudadas. Solo en el 2013, el tribunal expidió más de 9.000 órdenes de aprehensión que surgieron en gran parte de transgresiones menores, tales como infracciones de tránsito, multas de estacionamiento o transgresiones del código de vivienda. El encarcelamiento se consideraría una sanción demasiado dura para la gran mayoría de estas transgresiones de código; sin embargo, el
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tribunal municipal de Ferguson de manera rutinaria expide órdenes para aprehender y encarcelar a las personas que no pagan a tiempo sus multas y cargos relacionados. Conforme a la ley estatal, la falta de comparecer en el tribunal municipal por un cargo de tráfico que involucra una transgresión de tránsito también resulta en una suspensión de la licencia de conducir. Ferguson ha hecho esta sanción más onerosa aún al solo permitir que se levante la suspensión después de que se efectúe el pago completo de una multa que se debe. Además, hasta hace poco, Ferguson también añadía cargos, multas y cobros por cada comparecencia y pago que no se hacía. Muchos casos pendientes todavía incluyen tales cobros que fueron impuestos antes de que el tribunal los eliminara recientemente, lo cual hace que sea tan difícil como antes para que la gente resuelva estos casos.
El tribunal impone estas sanciones severas por comparecencias y pagos no realizados incluso cuando varias de las prácticas del tribunal crean barreras innecesarias para la resolución de una transgresión municipal. A menudo, el tribunal no proporciona información clara y exacta con respecto a los cargos contra una persona o las obligaciones del tribunal. Y los procedimientos de cálculo de multas del tribunal no establecen de manera adecuada la opción para que un acusado procure obtener una reducción de las multas con base en la incapacidad financiera o para buscar alternativas de pago tales como servicio a la comunidad. Los funcionarios de la ciudad y del tribunal se han adherido a estas prácticas judiciales a pesar de reconocer sus consecuencias innecesariamente dañinas. Por ejemplo, en agosto de 2013, un concejal de la ciudad les escribió al Administrador Municipal, el Alcalde y otros funcionarios de la ciudad lamentando la falta de una opción de servicio a la comunidad y resaltó los beneficios de un programa como tal, incluso que «evitaría que las personas que simplemente no tienen el dinero para pagar sus multas sean aprehendidas y encarceladas constantemente para ser puestas en libertad y volver a empezar con lo mismo de nuevo».
Conjuntamente, estas prácticas judiciales agravan el daño de las prácticas policiales inconstitucionales de Ferguson. Imponen una dificultad particular sobre los residentes más vulnerables de Ferguson, especialmente sobre aquellos que viven en el nivel de pobreza o cerca de el. Los delitos menores pueden generar deudas devastadoras, resultar en el encarcelamiento debido a la incapacidad de pagar y traer consigo la pérdida de la licencia de conducir, el empleo o la vivienda.
Por ejemplo, hablamos con una señora afroestadounidense que tiene un caso aún pendiente del año 2007, cuando, en una sola ocasión, estacionó su carro ilegalmente. Recibió dos citaciones y una multa de $151 más gastos. A la señora, que pasó dificultades financieras y períodos de destitución de vivienda a lo largo de varios años, se le imputaron siete delitos de Falta de Comparecencia por no haberse presentado ante el tribunal o no haber pagado sus multas a consecuencia de sus multas de estacionamiento entre los años 2007 y 2010. Por cada vez que no compareció ante el tribunal, el tribunal expidió una orden de aprehensión y le impuso multas y gastos nuevos. Entre el año 2007 y el 2014, la señora fue aprehendida dos veces, pasó seis días en la cárcel y le pagó $550 al tribunal por los sucesos surgidos de esta única vez de estacionamiento ilegal. Los registros del tribunal muestran que en dos ocasiones ella trató de hacer pagos parciales de $25 y $50, pero el tribunal le devolvió dichos pagos, negándose a aceptar cantidades inferiores al pago completo. Uno de esos pagos fue aceptado posteriormente, pero solamente después de que la carta del tribunal que rechazó el pago por giro monetario fue devuelta por ser imposible de entregar. Ahora, esta señora está haciendo pagos regulares de la multa. Al mes de diciembre de 2014, más de siete años después, a pesar de que inicialmente debiera una multa de $151 y de ya haber pagado $550, todavía debía $541.
Prejuicio racial
El enfoque hacia orden público de Ferguson refleja y refuerza el prejuicio racial, incluidos los estereotipos raciales. Los daños resultantes de las prácticas policiales y judiciales de Ferguson los pagan
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desproporcionadamente los afroestadounidenses y existen pruebas de que esto se debe en parte a la discriminación intencional con base en la raza.
Las prácticas del orden público de Ferguson afectan abrumadoramente a los afroestadounidenses. Los datos recolectados por el Departamento de Policía de Ferguson del 2012 al 2014 muestran que los afroestadounidenses representan el 85 % de las paradas de vehículos, el 90 % de las citaciones y el 93 % de las aprehensiones realizadas por agentes del FPD, a pesar de que solamente comprenden el 67 % de la población de Ferguson. Hay más del doble de posibilidades de que los conductores afroestadounidenses – en comparación con los conductores blancos– sean registrados en el curso de paradas de vehículos incluso después de controlar variables no relativas a la raza, tales como la razón por la que se inició la parada del vehículo, pero que se encuentran en posesión de contrabando con una frecuencia del 26 % menos que los conductores blancos, lo que sugiere que los agentes, de manera inadmisible, consideran la raza como un factor cuando deciden si registrar un vehículo o no. Es más probable que a los afroestadounidenses se les cite y aprehenda luego de una parada de vehículo, independientemente de la razón por la que se inició la parada del vehículo y es más probable que reciban citaciones múltiples durante un solo incidente. Del 2012 al 2014, el FPD expidió cuatro citaciones o más a afroestadounidenses en 73 ocasiones, pero expidió cuatro citaciones o más a personas que no eran afroestadounidenses solamente en dos ocasiones. El FPD parece imputar ciertos delitos casi exclusivamente a afroestadounidenses. Por ejemplo, del 2011 al 2013, los afroestadounidenses representaron el 95 % de los cargos de Manera de Caminar en la Vía y el 94 % de los cargos de Incumplimiento. Notablemente, en lo que respecta a los cargos de exceder el límite de velocidad imputados por el FPD, las pruebas muestran que no solo que los afroestadounidenses se encuentran representados en tasas desproporcionadamente altas en general, sino que el impacto disparejo de las prácticas de ejecución del FPD sobre los afroestadounidenses es un 48 % mayor cuando se expiden citaciones que no están basadas en el radar o láser, sino en algún otro método como la propia evaluación visual del agente.
Estas desigualdades también están presentes en el uso de la fuerza del FPD. Casi el 90 % de la fuerza usada por agentes del FPD que se encuentra documentada fue utilizada en contra de afroestadounidenses. En cada uno de los incidentes de mordedura de canes para el que se tiene información racial disponible, la persona que fue mordida fue afroestadounidense.
De igual modo, las prácticas del tribunal municipal causan daños desproporcionados a los afroestadounidenses. Es un 68 % menos probable–en comparación con otras razas– que el tribunal desestime los casos de afroestadounidenses y estos tienen mayor probabilidad de que sus casos duren más tiempo y resulten en más encuentros obligatorios con el tribunal. Es al menos un 50 % más probable que los casos de los afroestadounidenses conlleven a una orden de aprehensión y representaron el 92 % de los casos en los que el Tribunal Municipal de Ferguson expidió una orden de aprehensión en 2013. Los datos disponibles muestran que, de aquellos que fueron aprehendidos por el FPD solamente debido a una orden de aprehensión municipal pendiente, el 96 % son afroestadounidenses.
Nuestra investigación indica que esta carga desproporcionada sobre los afroestadounidenses no se puede explicar por ninguna diferencia en la tasa en la que la gente de diferentes razas transgrede la ley. Más bien, nuestra investigación ha revelado que estas desigualdades ocurren, al menos en parte, debido a un prejuicio ilegal en contra de los afroestadounidenses y los estereotipos sobre los mismos. Hemos encontrado pruebas sustanciales de prejuicio racial entre el personal policial y del tribunal en Ferguson. Por ejemplo, descubrimos correos electrónicos que circularon los supervisores de la policía y el personal del tribunal que estereotipan o catalogan a las minorías raciales como delincuentes, entre ellos, un correo electrónico que bromeaba que un aborto realizado por una mujer afroestadounidense era una forma de control de la delincuencia.
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Los funcionarios de la ciudad con frecuencia han afirmado que los resultados duros y dispares del sistema del orden público de Ferguson no indican problemas con las prácticas de la policía o el tribunal sino que más bien reflejan una falta generalizada de «responsabilidad personal» entre «ciertos segmentos» de la comunidad. Nuestra investigación ha encontrado que las prácticas sobre las que los residentes del área se han quejado de hecho son inconstitucionales e indebidamente duras. Pero la expresión sobre la responsabilidad personal de la ciudad lo dice todo: refleja muchos de los mismos estereotipos raciales que se encontraron en los correos electrónicos entre los supervisores de la policía y del tribunal. Estas pruebas de prejuicio y estereotipos, junto con las pruebas que Ferguson desde hace mucho reconoce pero que no ha corregido de las constantes desigualdades raciales causadas por sus prácticas policiales y judiciales demuestran que los efectos discriminatorios de la conducta de Ferguson son impulsados, al menos en parte, por la intención discriminatoria, en transgresión de la Decimocuarta Enmienda.
Desconfianza de la comunidad
Desde el asesinato con arma de fuego de Michael Brown en agosto de 2014, la falta de confianza entre el Departamento de Policía de Ferguson y una parte significativa de los residentes de Ferguson, especialmente los afroestadounidenses, se ha vuelto innegable. Sin embargo, las causas de esta desconfianza y división han sido tema de debate. Funcionarios de la policía y de otras entidades de la ciudad, así como también algunos residentes de Ferguson, han insistido en que la protesta pública sea atribuible a «agitadores externos» que no reflejan las opiniones de «los residentes reales de Ferguson». Esa perspectiva se encuentra en desacuerdo con los hechos que hemos reunido en el curso de nuestra investigación. Nuestra investigación ha mostrado que la desconfianza en el Departamento de Policía de Ferguson viene de tiempo atrás y es atribuible fundamentalmente al enfoque que tiene Ferguson hacia las entidades del orden público. Este enfoque origina patrones de vigilancia policial innecesariamente agresivos y, a veces, ilícitos; refuerza el daño de los estereotipos discriminatorios; desalienta una cultura de rendición de cuentas y pasa por alto la participación de la comunidad. En años recientes, el FPD ha abandonado los modestos esfuerzos de colaboración ciudadana que había implementado anteriormente, reduciendo las oportunidades de interacciones positivas entre la policía y la comunidad y perdiendo la poca familiaridad que tenía con algunos barrios afroestadounidenses. Así, la confluencia de la vigilancia policial para incrementar los ingresos públicos y los prejuicios raciales ha resultado en prácticas que no solo transgreden la Constitución y causan daños directos a las personas cuyos derechos se violan, sino que también socavan la confianza de la comunidad, especialmente entre muchos afroestadounidenses. Como consecuencia de estas prácticas, los cuerpos policiales se consideran ilegítimos y las asociaciones que son necesarias para la seguridad pública, en muchas áreas se encuentran completamente ausentes.
Recobrar la confianza en las entidades del orden público exigirá el reconocimiento de los daños que han causado las prácticas de los cuerpos policiales de Ferguson y la colaboración diligente y comprometida con toda la comunidad de Ferguson. Al final de este informe, hemos identificado de manera amplia los cambios que son necesarios para lograr una reforma significativa y sostenible. Estas medidas se basan en varios otros cambios recomendados que comunicamos verbalmente al Alcalde, el Jefe de Policía y el Administrador Municipal en septiembre de modo que Ferguson pueda empezar inmediatamente a abordar los problemas conforme los hemos identificado. Como resultado de tales recomendaciones, la ciudad y el departamento de policía ya han empezado a realizar algunos cambios en las prácticas del tribunal municipal y de la policía. Elogiamos a los funcionarios de la ciudad por tomar los pasos necesarios para abordar algunas de las preocupaciones que hemos planteado. No obstante, estos cambios solamente son una pequeña parte de la reforma pendiente. Abordar las deficiencias constitucionales profundamente arraigadas que hemos encontrado exige la reorientación total de los cuerpos policiales en Ferguson. La ciudad debe reemplazar la vigilancia policial impulsada por los ingresos con un sistema fundamentado en los principios de la colaboración comunitaria y la legitimidad de la policía, en el que a las personas se les protege equitativamente y en el que se las trata con compasión, independientemente de su raza.
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II. CAMBIOS NECESARIOS PARA CORREGIR LAS PRÁCTICAS DEL ORDEN PÚBLICO ILÍCITAS DE FERGUSON Y REPARAR LA CONFIANZA DE LA COMUNIDAD
Los problemas identificados en este informe reflejan la existencia de prácticas y prioridades profundamente arraigadas que son incompatibles con una vigilancia policial lícita y eficaz y que perjudican la confianza de la comunidad. Abordar estos problemas y restaurar la relación de la ciudad con la comunidad requerirá una redirección fundamental del enfoque de Ferguson hacia el orden público, incluyendo las prácticas policiales y judiciales que reflejan y perpetúan este enfoque.
A continuación establecemos nuestras recomendaciones amplias para los cambios que debe hacer Ferguson a sus prácticas policiales y judiciales para corregir las vulneraciones que identificó nuestra investigación. Asegurar una reforma significativa, sostenible y verificable requerirá que estas medidas y otras sean parte de un proceso de remediación ejecutable en los tribunales que incluya la participación de los interesados comunitarios así como la supervisión independiente. En las próximas semanas, procuraremos trabajar con la Ciudad de Ferguson hacia la formulación y el logro de un acuerdo sobre el marco apropiado para la reforma.
A. Prácticas de la policía de Ferguson
1. Implementar un Sistema sólido de verdadera colaboración ciudadana
Muchas de las recomendaciones que se incluyen a continuación requerirán un cambio de la vigilancia policial enfocada en aumentar ingresos a la vigilancia policial orientada hacia la participación de toda la comunidad de Ferguson. Desarrollar estas relaciones tomará no solamente tiempo sino considerable esfuerzo. El FPD debe:
a. Formular y poner en acción una política y plan detallado para la implementación integral de la colaboración ciudadana y de principios de resolución de problemas. Realizar un compromiso y hacer participar a toda la comunidad en la formulación e implementación de este plan;
b. Aumentar las oportunidades para que los agentes de la policía tengan interacciones frecuentes y positivas con personas fuera del contexto del orden público, especialmente con grupos que han expresado altos niveles de desconfianza en la policía. Tales oportunidades pueden incluir ligas atléticas policiales y actividades informales similares;
c. Desarrollar asociaciones comunitarias para identificar prioridades de prevención delictiva, con concentración en las zonas desconectadas, tales como los complejos de viviendas subsidiadas de Ferguson y grupos desconectados como mucha de la juventud afroestadounidense de Ferguson;
d. Modificar los patrones de emplazamiento y horarios de los agentes de policía (tales como el cambio de los turnos actuales de 12 horas y la asignación de agentes policiales a patrullar las mismas zonas geográficas de forma constante) para facilitar la participación en proyectos de prevención de la delincuencia y la familiaridad con áreas y personas;
e. Capacitar a los agentes de policía en la prevención de la delincuencia, la seguridad de los agentes y las ventajas de la colaboración ciudadana antidiscriminación. Capacitar a los agentes policiales en materia de la mecánica de la colaboración ciudadana y su papel en la implementación de la misma;
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f. Medir y evaluar el desempeño policial de los agentes, los supervisores y la entidad policial en materia de participación en la comunidad, proyectos de vigilancia policial orientados hacia la resolución de problemas y prevención de la delincuencia en vez de la productividad de las aprehensiones y las citaciones.
2. Concentrar las prácticas de parada, registro, imposición de multas y aprehensiones en la protección de la comunidad
El FPD debe cambiar fundamentalmente la forma en la que realiza paradas y registros, expide citaciones y órdenes de comparecencia y hace aprehensiones. Se debe capacitar a los agentes del FPD y exigir que respeten la ley. Además, los esfuerzos de ejecución del FPD se deben reorientar de modo que a los agentes de policía se les exija tomar acción para hacer cumplir la ley porque esta promueve la seguridad pública y no simplemente porque tiene autoridad legal para actuar. Para hacer esto, el FPD debe:
a. Prohibir el uso de cupos de imposición de multas y aprehensiones, ya sean formales o informales;
b. Requerir que los agentes de policía informen por escrito de todos los registros, las paradas y las aprehensiones que realicen, incluso las paradas peatonales y que sus informes indiquen la autoridad legal para la acción de ejecución policial y una descripción suficientemente clara de los hechos que respalden dicha autoridad;
c. Exigir la aprobación documentada de los superiores antes de:
1) Expedir alguna citación/orden de comparecencia que incluya más de dos cargos;
2) Realizar una aprehensión por cualquiera de los siguientes cargos:
i. Incumplimiento/Desobediencia;
ii. Resistir la aprehensión;
iii. Alteración del orden público/Perturbación de la paz;
iv. Obstrucción de las operaciones del gobierno;
3) Aprehender o imponer una multa a una persona que buscó la ayuda de la policía o que está cooperando con la policía en una investigación;
4) Aprehender con base en una orden de aprehensión municipal o aviso de buscado;
d. Revisar la disposición del código municipal en materia de Incumplimiento para que sea constitucional y proporcionar suficiente orientación para que todas las paradas, citaciones y aprehensiones basadas en la disposición cumplan con lo dispuesto en la Constitución;
e. Capacitar a los agentes policiales sobre el uso apropiado del cargo Incumplimiento, incluyendo los elementos del delito y la legitimidad del cargo en casos de interferencia con la actividad policial que amenaza la seguridad pública;
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f. Exigir que se satisfagan las normas legales aplicables antes de que los agentes policiales realicen cacheos personales o registros de vehículo. Prohibir los registros basados en consentimiento en el futuro inmediato;
g. Desarrollar un sistema de transgresiones corregibles o multas «de arreglo obligatorio» y exigir que los agentes policiales expidan multas de arreglo obligatorio siempre que sea posible y que no haya instrucciones de supervisión contrarias;
h. Formular e implementar políticas y capacitación en materia de la respuesta policial apropiada ante actividades protegidas por la Primera Enmienda, incluido el derecho a observar, grabar y protestar las acciones policiales;
i. Proveer capacitación inicial y de repetición regular sobre las limitaciones que impone la Cuarta Enmienda en cuanto a la acción policial, así como también la responsabilidad dentro del FPD de limitar las acciones más allá de lo que exige la Cuarta Enmienda en interés de la seguridad pública y la confianza de la comunidad;
j. Descontinuar el uso de avisos de «buscados» u «órdenes de parar» y prohibir a los agentes de policía que lleven a cabo paradas, registros o aprehensiones con base en los avisos de «buscados» u «órdenes de parar» que otras entidades expidieron.
3. Incrementar el rastreo, la revisión y el análisis de las prácticas de parada, registro, imposición de multas y aprehensiones del FPD
En el primer nivel de supervisión y como entidad, el FPD debe examinar de manera más estricta las prácticas de paradas, registros, imposición de multas y aprehensión por parte de los agentes policiales para asegurar que los agentes estén cumpliendo con la Constitución y la política del departamento y para evaluar el impacto que tiene la actividad de los agentes policiales en la legitimidad de la policía y la confianza de la comunidad. El FPD debe:
a. Formular e implementar un plan para la recolección amplia de datos sobre paradas, registros, imposición de multas y aprehensiones que incluyan paradas de peatones, mejore la recolección de datos de paradas de vehículos y exija la recopilación de datos sobre toda la actividad de parada y postparada, así como información demográfica y sobre la ubicación;
b. Exigir que los supervisores revisen toda la actividad de los agentes policiales y que revisen también todos los informes de los agentes antes de que termine el turno del supervisor;
c. Formular e implementar un sistema para la revisión regular de los datos de paradas, registros, imposición de multas y aprehensiones en el nivel de supervisión y de la entidad para detectar tendencias problemáticas y asegurar la congruencia con las metas de seguridad pública y la colaboración ciudadana;
d. Analizar las disparidades de razas y de otro tipo que se muestren en las prácticas de parada, registro, imposición de multas y aprehensiones para determinar si se pueden reducir las disparidades de manera congruente con las metas de seguridad pública.
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4. Cambiar el uso de la fuerza, la presentación de informes, la revisión y la respuesta para alentar la reducción de tensiones y el uso de la fuerza mínima necesaria en una situación
El FPD debe reorientar el enfoque de los agentes de policía en el uso de la fuerza asegurándose de que estén capacitados y sean diestros en el uso de herramientas y tácticas para reducir tensiones en ciertas situaciones e incentivarlos para que eviten el uso de la fuerza siempre que sea posible. El FPD también debe implementar un sistema de revisión del uso de la fuerza que asegure la detección de la fuerza inapropiada y la respuesta eficaz ante la misma y que se identifiquen las inquietudes en materia de política, capacitación, tácticas y la seguridad de los agentes de policía. El FPD debe:
a. Capacitar y exigir que los agentes de policía usen técnicas de reducción de tensiones siempre que sea posible, tanto para evitar que una situación se intensifique hasta que sea necesario utilizar la fuerza como para evitar el uso innecesario de la fuerza, incluso cuando estaría legalmente justificado. La capacitación debe incluir tácticas para aminorar una situación a fin de aumentar las opciones disponibles;
b. Exigir la aprobación del supervisor en el lugar antes de enviar canes, si no hubiera circunstancias urgentes documentadas; capacitar a los agentes policiales que usan canes y requerir que tomen en cuenta la índole y severidad del supuesto delito al decidir si enviar o no un can para morder; capacitar a los agentes policiales que usan canes y requerir que eviten enviar un can para aprehender mediante la mordedura a un sospechoso oculto cuando los hechos objetivos no sugieren que el sospechoso esté armado y se puede esperar razonablemente que un nivel de uso de fuerza de menor nivel sea suficiente para asegurar al sospechoso;
c. Imponer límites más estrictos sobre el uso de armas de control eléctrico (ECW, por sus siglas en inglés), incluidas unas limitaciones sobre los ciclos múltiples de ECW y la justificación detallada del uso de más de un ciclo;
d. Volver a capacitar a los agentes de policía sobre el uso de las ECW para asegurar que consideren y usen las ECW como una herramienta de necesidad no de conveniencia. La capacitación debe ser congruente con los principios establecidos en las Pautas sobre las ECW de 2011;
e. Formular e implementar la presentación de informes sobre el uso de la fuerza que exija que el agente que use la fuerza complete un informe escrito descriptivo, aparte del informe sobre el delito, que describa en detalle la fuerza que se ha utilizado y que describa con especificidad las circunstancias que exigieron el nivel de fuerza usado, incluyendo las razones por la parada inicial u otro tipo de acción policial. Algunos niveles de fuerza deben exigir que todos los agentes que hayan observado el uso de la fuerza presenten un informe narrativo por separado;
f. Formular e implementar la revisión por parte del supervisor de la fuerza que requiera que dicho supervisor realice una revisión completa de cada incidente de uso de fuerza, incluyendo la recopilación y consideración de las pruebas necesarias para entender las circunstancias del incidente del uso de fuerza y determinar su congruencia con la ley y la política, incluidas las declaraciones de las personas en contra de las cuales se utilizó la fuerza y de testigos civiles;
g. Prohibir que los supervisores revisen o investiguen un incidente del uso de la fuerza en el que participaron o que dirigieron;
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h. Asegurar que los informes completos sobre el uso de fuerza y los archivos de revisión/investigación, incluyendo todos los informes de delitos, las declaraciones de los testigos y las pruebas médicas, las cintas de audio o de vídeo y otras pruebas, se mantengan juntos en un lugar centralizado;
i. Formular e implementar un sistema de revisión de nivel más alto e interdisciplinario de algunos tipos de fuerza, tales como la fuerza letal, el envío de canes, las ECW y la fuerza que trae consigo cualquier tipo de lesión;
j. Mejorar la recopilación, revisión y respuesta a los datos sobre el uso de la fuerza, incluida la información con respecto al uso de las ECW y los canes;
k. Implementar un sistema de tolerancia cero para el uso de la fuerza como castigo o represalia en vez de como una respuesta necesaria y proporcional para contrarrestar una amenaza;
l. Disciplinar a los agentes de la policía que no declaran el uso de la fuerza y a los supervisores que no investigan de modo adecuado el uso de la fuerza;
m. Identificar la disparidad racial y de otros tipos en el uso de la fuerza por parte de los agentes policiales y desarrollar estrategias para eliminar las disparidades evitables;
n. Dotar a la cárcel de al menos dos agentes correccionales en todo momento para garantizar la seguridad y reducir al mínimo la necesidad de usar la fuerza para ocuparse de reos combativos o en estado de ebriedad. Capacitar a los agentes correccionales en técnicas de reducción de tensiones con instrucciones y capacitación específicas para reducir al mínimo el uso de la fuerza al ocuparse de reos combativos o en estado de ebriedad, así como también de la resistencia pasiva y el incumplimiento.
5. Implementar políticas y capacitación para mejorar las interacciones con personas vulnerables
Proveer a los agentes de la policía las herramientas y la capacitación para responder mejor a las personas que se encuentran en crisis de salud física o mental y a aquellas con discapacidades intelectuales, ayudará a evitar lesiones innecesarias, aumentará la confianza de la comunidad y mejorará el nivel de seguridad personal de los agentes policiales. El FPD debe:
a. Formular e implementar políticas y capacitación para identificar y responder a las personas que tengan condiciones de salud mental conocidas o sospechadas, incluidas las que se observan en casos de crisis de salud mental y aquellas que tengan discapacidades intelectuales o de otro tipo;
b. Ofrecer mejor capacitación en materia de intervención en casos de crisis a un subgrupo de agentes policiales para permitir la disponibilidad inmediata de agentes capacitados en los escenarios de incidentes críticos que involucran a personas con enfermedades mentales;
c. Requerir que, siempre que sea posible, al menos un agente de la policía con capacitación mejorada en materia de intervención en casos de crisis responda a cualquier situación que concierna a personas que se encuentren en crisis de salud mental o con discapacidades intelectuales, cuando se podría utilizar la fuerza;
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d. Proveer capacitación a los agentes policiales sobre la manera de identificar y responder a emergencias médicas comunes que podrían parecer al principio un incumplimiento de órdenes legales. Tales emergencias médicas podrían incluir, por ejemplo, ataques de convulsiones o emergencias diabéticas.
6. Cambiar la respuesta a los estudiantes y evitar la criminalización de la juventud a la vez que se mantiene un entorno de aprendizaje
El FPD tiene la oportunidad de afectar profundamente a los estudiantes a través de su programa de Agentes Policiales de Recurso en las Escuelas (SRO, por sus siglas en inglés). Este programa se puede usar como una forma de crear relaciones positivas con la juventud desde una edad temprana y para apoyar estrategias para mantener a los estudiantes en la escuela y para que aprendan. El FPD debe:
a. Trabajar con administradores escolares, maestros, padres y estudiantes para formular e implementar políticas y capacitación que sean congruentes con la ley y las mejores prácticas para abordar de manera más eficaz los problemas disciplinarios en las escuelas. Este enfoque se debe concentrar en hacer que los SRO desarrollen relaciones positivas con la juventud para promover un entorno de aprendizaje donde los problemas de disciplina no se traten innecesariamente como asuntos delictivos o asuntos que resulten en la imposición rutinaria de suspensiones escolares largas;
b. Proveer capacitación inicial y periódica a los SRO, incluyendo capacitación en material de salud mental, consejería y el desarrollo del cerebro adolescente;
c. Evaluar el desempeño de los SRO en materia de participación de los estudiantes y prevención de altercados en vez de aprehensiones o remociones de los alumnos;
d. Revisar y evaluar periódicamente los incidentes en los que estén involucrados los SRO para asegurar que satisfagan las metas particulares del programa de SRO; identificar cualquier impacto o tratamiento desigual con base en la raza u otra categoría protegida e identificar todas las inquietudes en materia de política, capacitación o equipo.
7. Implementar medidas para reducir el prejuicio y su impacto en el comportamiento policial
Muchas de las recomendaciones que se incluyen en otro lugar tienen el potencial de reducir el nivel y el impacto del prejuicio en el comportamiento de la policía (por ej., aumentar las interacciones positivas entre la policía y la comunidad; incrementar la recolección y el análisis de los datos de paradas vehiculares y elevar la supervisión del ejercicio de la discreción policial). A continuación se ofrecen medidas adicionales que pueden ayudar en este esfuerzo. El FPD debe:
a. Proveer capacitación inicial y periódica a todos los agentes de policía que envíe un mensaje claro, congruente y enfático de que está prohibida la elaboración de perfiles basados en el prejuicio y otras formas de vigilancia policial. La capacitación debe incluir lo siguiente:
1) Normas legales y éticas relevantes;
2) Información sobre la manera en que los estereotipos y los sesgos implícitos pueden infectar la labor policial;
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3) La importancia de la justicia procesal y la legitimidad policial con la confianza de la comunidad, eficacia policial y seguridad de los agentes policiales;
4) Los impactos negativos de establecer perfiles en cuanto a la seguridad pública y la prevención de la delincuencia;
b. Proveer capacitación a los supervisores y comandantes sobre la detección y la respuesta al establecimiento de perfiles basados en prejuicios y otras formas de vigilancia policial discriminatoria;
c. Incluir a los miembros de la comunidad de grupos que hayan expresado niveles altos de desconfianza en la policía en cuanto a la capacitación de sus agentes;
d. Tomar pasos para eliminar todas las formas de prejuicio en el lugar de trabajo del FPD y la ciudad.
8. Mejorar y aumentar la capacitación en general
Los agentes del FPD reciben muy poca capacitación como reclutas y después de convertirse en agentes policiales. Los agentes necesitan un mejor conocimiento de lo que requieren la ley, la política y la integridad, así como capacitación concreta sobre la forma de llevar a cabo sus responsabilidades policiales. Además de la capacitación especificada en otros lugares de estas recomendaciones, el FPD debe:
a. Mejorar significativamente la calidad y la cantidad de todo tipo de capacitación para los agentes de policía, incluyendo la capacitación en el campo (lo que incluye la capacitación para los agentes policiales contratados de otras entidades policiales) y la capacitación en el servicio;
b. Exigir que la capacitación cubra, en profundidad, las restricciones constitucionales y legales de otro tipo sobre las acciones de los agentes, así como los factores adicionales que deben considerar los agentes policiales antes de tomar acciones de ejecución de la ley (tales como las consideraciones de legitimidad policial y de justicia procesal);
c. Emplear métodos basados en situaciones concretas y de aprendizaje de adultos.
9. Aumentar la participación civil en la toma de decisiones de la policía
Además de hacer participar a todos los segmentos de Ferguson como parte de la implementación de la colaboración ciudadana, el FPD debe formular e implementar un sistema que incorpore los aportes de la ciudadanía en todos los aspectos de la vigilancia policial, incluyendo la formulación de políticas, capacitación, revisión del uso de la fuerza e investigación de las denuncias de falta de ética profesional.
10. Mejorar la supervisión de los agentes
Las recomendaciones que se establecen en el presente no se pueden implementar sin contar con la presencia de supervisores dedicados, diestros y bien capacitados que conducen vigilancia policial legalmente y sin sesgos. El FPD debe:
a. Proporcionar a todos los supervisores capacitación de supervisión específica antes de asignarlos a puestos de supervisión;
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b. Desarrollar un «sistema de intervención temprana» y exigir que los supervisores lo usen para detectar objetivamente patrones problemáticos de falta de ética profesional por parte de los agentes de policía, ayudar a los agentes policiales que necesitan atención adicional e identificar las necesidades de capacitación y equipo;
c. Respaldar a los supervisores que alientan y guían la vigilancia policial respetuosa e implementan principios de colaboración ciudadana y evaluarlos con base en esto. Sacar de sus puestos a los supervisores que no revisan de manera adecuada las actividades o los informes de los agentes de policía o que no apoyan, ya sea mediante palabras o mediante acciones, la vigilancia policial sin prejuicios;
d. Asegurar que un número adecuado de supervisores cualificados de primera línea se encuentren emplazados en el campo para permitir que estos proporcionen supervisión eficaz de cerca de cada agente de policía bajo el mando directo del supervisor, para proporcionarles a los agentes la dirección y orientación necesarias para mejorar y formarse como agentes policiales y para identificar, corregir y prevenir la falta de ética profesional.
11. Reclutamiento, contratación y promoción
Existen preocupaciones generalizadas sobre la falta de diversidad, especialmente en lo que se refiere a la diversidad racial y de género, entre los agentes de policía del FPD. El FPD debe modificar sus sistemas de reclutamiento, contratación y promoción para:
a. Asegurar que los procesos de contratación y selección de los agentes del departamento de policía incluyan un proceso objetivo de selección que emplee dispositivos de selección confiables y válidos que concuerden con las mejores prácticas y cumplan con las leyes federales antidiscriminatorias;
b. En el caso de contrataciones laterales, escudriñar los registros de capacitación y cualificaciones previas así como también el historial de denuncias y asuntos disciplinarios;
c. Implementar mecanismos validados de selección previos al empleo para garantizar la idoneidad de temperamento y conjunto de destrezas para la vigilancia policial.
12. Formular mecanismos para responder de forma más eficaz a las alegaciones de falta de ética profesional por parte de los agentes policiales
Responder a las acusaciones de falta de conducta ética de los agentes es vital no solamente para corregir el comportamiento del agente e identificar las preocupaciones en materia de política, capacitación o tácticas sino también para fomentar la confianza de la comunidad y la legitimidad policial. El FPD debe:
a. Modificar los procedimientos y las prácticas de aceptación de denuncias para hacer que sea más fácil y menos intimidante para registrar denuncias formales sobre la conducta policial, lo que incluye proporcionar formularios de denuncia en línea y en varios locales por toda la ciudad y permitir que se presenten las denuncias en línea y por terceros o de forma anónima;
b. Requerir que se registren e investiguen todas las denuncias;
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c. Formular e implementar un proceso congruente, confiable y justo para investigar y responder a las denuncias de falta de ética profesional por parte de los agentes policiales. Como parte de este proceso, el FPD debe:
1) Investigar toda denuncia de falta de ética profesional, incluso en los casos en los que el denunciante indica que no desea que se investigue la denuncia o desea mantener el anonimato;
2) No retirar denuncias sin llegar a una disposición de las mismas;
d. Formular e implementar un sistema justo y congruente para disciplinar a los agentes cuando se descubre que han tenido mala conducta ética;
e. Despedir a los agentes que han mentido de forma material en el desempeño de sus obligaciones, incluyendo en la elaboración de informes o en el curso de investigaciones del departamento de asuntos internos;
f. Proveerle oportunamente por escrito al Fiscal de Ferguson toda la información sobre destituciones de agentes policiales que podrían testificar u ofrecer declaraciones juradas, incluyendo los hallazgos de falsedad en las investigaciones del departamento de asuntos internos, para su revelación al acusado conforme a lo dispuesto en el caso Brady contra Maryland, 373 U.S. 83 (1963);
g. Documentar en un lugar central todas las denuncias e investigaciones de falta de ética profesional, incluyendo la índole de la denuncia, el nombre del agente y la disposición de la investigación;
h. Mantener en un lugar central archivos de investigación completos en materia de demandas de falta de ética profesional;
i. Formular e implementar un programa de mediación centrado en la comunidad para resolver, según sea apropiado, las alegaciones de falta de ética profesional de los agentes policiales.
13. Compartir información públicamente sobre la índole y el impacto de las actividades policiales
La transparencia es un componente clave de la buena gobernanza y la confianza de la comunidad. Asimismo, al proporcionarle al público información amplia se facilita la participación comunitaria constructiva. El FPD debe:
a. Proveer informes públicos específicos y periódicos sobre las actividades policiales de paradas, registros, aprehensiones, imposición de multas, uso de la fuerza y sobre la participación de la comunidad, incluyendo los problemas y los logros particulares, y describir los pasos que se tomaron para abordar inquietudes;
b. Proporcionar informes públicos periódicos sobre las alegaciones de falta de ética profesional, incluyendo la índole de la denuncia y su resolución;
c. Poner a disposición en línea y actualizar de forma regular un conjunto completo de políticas policiales.
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B. Prácticas judiciales de Ferguson
1. Hacer que los procesos del tribunal municipal sean más transparentes
Restaurar la legitimidad del sistema de justicia municipal requiere mayor transparencia con respecto a las operaciones del tribunal para permitir que el público evalúe si el tribunal está operando de manera justa. El tribunal municipal debe:
a. Hacer públicas, mediante una variedad de medios –entre ellos visualizaciones prominentes en las páginas web de la ciudad, la policía y el tribunal municipal– todas las cantidades por concepto de multas, recargos y fianzas en relación con el tribunal y una descripción del proceso de pago del tribunal municipal, incluyendo las fechas de audiencias del tribunal, las opciones de pago y las consecuencias potenciales de no pagar o no presentarse en las comparecencias en el tribunal;
b. Crear, adoptar y hacer públicos los procedimientos escritos de todas las operaciones del tribunal;
c. Recabar todas las órdenes que se encuentran en vigencia actualmente y hacerlas accesibles al público, incluso mediante la publicación de tales materiales en las páginas web de la ciudad, la policía y el tribunal municipal. Hacer públicas todas las órdenes y directrices del tribunal a medida que se expidan;
d. Iniciar una campaña de educación pública para asegurar que las personas puedan tener una comprensión precisa y completa de la manera en que opera el tribunal municipal de Ferguson, incluyendo que la comparecencia ante el tribunal sin tener la capacidad para pagar una multa pendiente no resultará en una aprehensión;
e. Proveer información disponible ampliamente a las personas en lo que se refiere a la asistencia legal de bajo costo o sin costo alguno;
f. Mejorar la información pública asegurando que los datos provistos al Administrador de los Tribunales de Missouri son exactos y haciendo que estos y datos adicionales estén disponibles en los sitios web de la ciudad y el tribunal, incluyendo en informes mensuales que indiquen:
1) La cantidad de órdenes de aprehensión que se han expedido y que están pendientes en la actualidad;
2) El número de casos que se atendieron el mes anterior;
3) El número de multas impuestas y cobradas, desglosadas por delito, incluyendo la raza de los ofensores;
4) Datos con respecto al número de suspensiones de licencias de conducir del Departamento de Ingresos Públicos de Missouri que ha iniciado el tribunal y el número de cartas de conformidad que permiten el restablecimiento de las licencias de conducir que ha librado el tribunal.
g. Revisar el sitio web del tribunal municipal para facilitar le plena implementación de estas recomendaciones.
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2. Proveer información completa y exacta a las personas imputadas de transgresiones municipales
Además de hacer que sus procesos sean más transparentes para el público, el tribunal debe asegurar que a aquellos que tengan casos pendientes ante el tribunal se les provea información adecuada y confiable sobre sus casos. El tribunal municipal, en colaboración con la División de Patrullaje, debe:
a. Asegurar que todas las citaciones, órdenes de comparecencia y aprehensiones del FPD estén acompañadas de información suficiente y detallada sobre los derechos y las responsabilidades de los destinatarios, entre ellos:
1) La transgresión municipal específica que se ha imputado;
2) Las opciones que tiene la persona para responder al cargo, incluyendo si se exige la comparecencia en persona o si existen otros métodos alternativos, incluyendo el pago en línea y la información referente a todas las fechas límites pendientes;
3) El derecho de la persona a impugnar el cargo en el tribunal;
4) La fecha y hora exactas de la sesión del tribunal en la que la persona que recibe el cargo debe o puede comparecer;
5) Información sobre la forma de procurar la prórroga para una comparecencia ante el tribunal;
6) La multa específica impuesta, si el delito tiene una multa fijada;
7) Los procesos disponibles para procurar una reducción de la multa debido a la incapacidad financiera, congruente con la recomendación cuatro que se indica más abajo;
8) Las sanciones por no satisfacer los requisitos del tribunal.
b. Formular e implementar un sistema en línea seguro para que las personas puedan tener acceso a detalles específicos sobre su caso, entre ellos, las multas que se deben, los pagos realizados y los requisitos pendientes, así como las fechas límites.
3. Cambiar los procedimientos del tribunal para rastrear y resolver los recargos municipales para simplificar los procesos judiciales y ampliar las opciones de pago disponibles
El tribunal municipal debe:
a. Limitar de manera estricta aquellos delitos que requieren la comparecencia en persona ante el tribunal para su resolución a aquellos para los que la ley estatal exige que el acusado tenga una comparecencia inicial en el tribunal;
b. Establecer un proceso mediante el cual una persona pueda procurar la prórroga de una comparecencia ante el tribunal, representado por un abogado o no;
c. Seguir implementando su sistema de pagos en línea y ampliarlo para permitir la realización en línea de pagos tardíos, pagos de planes por cuotas, pagos de fianzas y otros pagos judiciales;
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d. Seguir desarrollando y pasando a un sistema de administración electrónica de registros para los expedientes del tribunal a fin de asegurar que toda la información y los eventos de los casos se rastreen y sean accesibles para los funcionarios del tribunal y del FPD, según sea apropiado. Asegurar que el sistema de administración electrónica de registros tenga los controles apropiados para limitar el acceso de los usuarios y la capacidad de alterar los registros de los casos;
e. Asegurar que la oficina del tribunal municipal esté dotada de personal constantemente durante las horas de atención publicadas para permitir que aquellos que se presenten en la ventanilla del tribunal del departamento de policía puedan resolver sus cargos municipales;
f. Aceptar pagos parciales de las personas y proporcionar información clara a las personas sobre las opciones de planes de pagos.
4. Revisar las cantidades de las multas fijas e implementar un sistema para la reducción de las multas
El tribunal municipal debe:
a. Llevar a cabo, de forma inmediata, una revisión de las cantidades actuales de las multas y asegurar que sean congruentes no solamente con los promedios regionales sino con los estatales también, que no sean claramente punitivas y que tengan en cuenta el nivel de ingresos de los residentes de Ferguson;
b. Formular e implementar un proceso mediante el cual las personas puedan comparecer ante el tribunal para procurar multas fijas proporcionales de acuerdo con su capacidad financiera de pago.
5. Formular un sistema eficaz de evaluación de la capacidad de pago y mejorar la recolección de datos con respecto a las multas que se han impuesto
El tribunal municipal debe:
a. Formular e implementar criterios escritos congruentes para la evaluación de la capacidad de pago de una persona antes de la imposición de cualquier multa y luego del incremento de la multa o de los costos y cobros adicionales relacionados del tribunal. La evaluación de la capacidad de pago debe incluir no solamente una consideración de los recursos financieros de una persona sino también una consideración de cualquier multa documentada que se deba a otros tribunales municipales;
b. Mejorar los procedimientos actuales para recabar y rastrear datos referentes a las sumas de las multas impuestas. Rastrear las multas iniciales impuestas como una cifra independiente aparte de cualquier cargo impuesto durante un caso;
c. Realizar revisiones internas periódicas de los datos respecto al cálculo de multas. Esta revisión debe incluir un análisis de las multas impuestas por los mismos delitos, incluyendo la distribución según la raza del acusado, para asegurar que los cálculos de las multas por delitos similares se establezcan de forma apropiada.
6. Revisar los procedimientos de planes de pago y proporcionar alternativas a los pagos de multas para resolver los recargos municipales
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El tribunal municipal debe:
a. Formular e implementar un proceso específico mediante el cual una persona se puede inscribir en un plan de pago que exija pagos periódicos razonables. Tal proceso debe incluir una evaluación de la capacidad de pago de la persona para determinar una cantidad apropiada de pago periódico, si bien un pago requerido no debe exceder $100. Ese proceso debe incluir un medio por el cual la persona puede buscar una reducción en su obligación de pago mensual en caso de surgir un cambio en sus circunstancias financieras;
b. Proveer más oportunidades para que una persona procure licencia para pagar una suma menor en un mes dado, más allá de la práctica actual del tribunal de exigir la comparecencia el primer miércoles del mes a las 11:00 a.m. Adoptar procedimientos que permitan que las personas procuren su primera solicitud de una reducción una sola vez fuera del tribunal y hacer que se otorguen automáticamente tales solicitudes. Tales procedimientos deben establecer que el juez municipal otorgue libremente solicitudes posteriores y que los rechazos de las solicitudes de extensión o de pagos mensuales reducidos vayan acompañadas de una explicación por escrito de por qué se rechazó la solicitud;
c. Cesar la práctica de expedir automáticamente una orden de aprehensión cuando una persona que está en un plan de pago no hace un pago y adoptar procedimientos que establezcan advertencias apropiadas tras un pago no realizado, congruentes con la recomendación ocho que se indica a continuación;
d. Trabajar con organizaciones comunitarias y otros grupos regionales para desarrollar opciones de sanciones alternativas aparte de multas, entre ellas, ampliar las opciones de servicio a la comunidad. Hacer que todas las personas sean elegibles para realizar un servicio comunitario.
7. Reformar los procedimientos de juicio para asegurar el pleno cumplimiento de los requisitos de proceso debido
El tribunal municipal debe tomar todos los pasos necesarios para asegurar que los procedimientos de juicio del tribunal cumplan plenamente con los requisitos de proceso debido de modo que a los acusados se les provea un foro justo e imparcial para impugnar los cargos que se les imputen. Como parte de este esfuerzo, el tribunal debe garantizar que los acusados que lleven sus casos a juicio reciban todas las pruebas pertinentes a las determinaciones de culpabilidad en concordancia con los requisitos del caso Brady v. Maryland, 373 U.S. 83 (1963) y otras leyes aplicables.
8. Dejar de usar órdenes de aprehensión como medios de cobrar multas y recargos adeudados
Como lo ha reconocido el propio juez municipal de Ferguson, las transgresiones del código municipal deberán resultar en penas de cárcel solamente en las circunstancias más excepcionales. A fin de empezar a resolver estos problemas, Ferguson solamente deberá encarcelar a las personas por falta de comparecencia o por no pagar una sanción por violación del código municipal, si corresponde, si se siguieron los siguientes pasos en un caso en particular, sin resultados positivos:
a. Ejecución de multas mediante medios alternativos, tales como los siguientes:
1) Cálculo razonable de moras por tardanza de pago;
2) Ampliación de opciones de pago mediante servicio a la comunidad;
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3) Planes de pago modificados con sumas razonables y procedimientos de pagos adeudados;
4) Una audiencia de indicación de causa o fundamento sobre por qué no se debe expedir una orden de aprehensión, incluyendo una evaluación de la capacidad de pago, cuando se solicite. En esta audiencia, la persona tiene el derecho a un abogado y, si la persona es indigente, el tribunal le asignará un abogado para que la represente. Véase Mo. Sup. Ct. R. 37,65; Mo. Mun. Benchbook, Cir. Ct., Mun. Div. Sección 13,8;
b. Entrega personal a la persona de la moción de la Orden de Mostrar Causa o Fundamento que proporcione notificación de la información anterior relativa al derecho a tener abogado y las consecuencias de no comparecer ante el tribunal; y
c. Si los mecanismos anteriores no logran garantizar el pago o si no resuelven el caso, el tribunal debe asegurar que cualquier orden de aprehensión que se expida tenga la instrucción de que sea ejecutada solamente los días que el tribunal está en sesión de modo que la persona pueda ir ante el tribunal inmediatamente para facilitar la implementación de los procedimientos anteriormente indicados. Véase Mo. Mun. Benchbook, Cir. Ct., Mun. Div. Sección 13,8 («Si un acusado no comparece ante el tribunal en la fecha de la orden de comparecencia para mostrar fundamento o causa o moción por desacato, se debe expedir una orden de aprehensión para llevar al acusado ante el tribunal para la audiencia».) (Cursiva añadida).
9. Permitir que las órdenes de aprehensión sean retiradas sin el pago de fianza
Ferguson recientemente amplió su programa de retiro de órdenes de aprehensión, también llamado un programa de «amnistía», que permite que las personas pidan el retiro de sus órdenes de aprehensión municipales y que reciban una nueva fecha de comparecencia ante el tribunal sin tener que pagar una fianza. Este programa se debe hacer permanente. El tribunal municipal debe:
a. Permitir que todas las personas busquen el retiro de órdenes de aprehensión por escrito o por teléfono, si están representados por un abogado o no;
b. Proveer información a una persona participante en el momento en que se retira la orden de aprehensión, incluyendo el número de cargos pendientes, el importe de la multa adeudada si se ha impuesto un recargo, las opciones disponibles para pagar las multas impuestas, las fechas límites para hacerlo y los requisitos, si los hubiera, para comparecer ante el tribunal.
10. Modificar las cantidades de las fianzas y los procedimientos para la imposición de fianzas y de detención
Ferguson tiene dos procesos y tablas de fianzas del código municipal: uno para las aprehensiones sin órdenes de aprehensión y otro para las aprehensiones conforme a las órdenes de aprehensión libradas por el tribunal municipal. Recientemente, el tribunal municipal de Ferguson limitó el número de transgresiones del código municipal por las que los agentes pueden encarcelar a una persona sin una orden de aprehensión y redujo el tiempo que la cárcel puede retener a un acusado que no puede pagar la fianza de 72 a 12 horas. Estos cambios suponen un buen punto de partida, pero se necesitan mayores reformas. La ciudad y el tribunal municipal deben:
a. Limitar a 12 horas el tiempo que la cárcel puede retener a un acusado que no puede pagar la fianza en todas las aprehensiones debido a transgresiones del código municipal o a órdenes de aprehensión municipales;
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b. Establecer procedimientos para fijar las sumas de las fianzas para detenidos con y sin orden de aprehensión que sean congruentes con la prohibición de encarcelamiento de personas con base en la indigencia según la Cláusula de Protección Equitativa, y que se aseguren que en ningún caso la fianza exceda la suma de $100 para una persona aprehendida conforme a una orden de aprehensión municipal, independientemente del número de cargos pendientes;
c. En el momento del pago de la fianza, ofrecer a las personas la opción de aplicar una tarifa de fianza a las multas y costos subyacentes, incluyendo en el caso de decomiso;
d. Tomar los pasos necesarios, entre ellos el desarrollo continuo de un sistema de administración digitalizado de los registros del tribunal como se indicó anteriormente, para facilitar el acceso al personal del tribunal, los agentes de policía del FPD y los agentes penitenciarios del FPD a la información de los casos de modo que una persona tenga la opción de pagar toda la multa subyacente en vez de una fianza luego de ser aprehendida;
e. Aumentar las opciones para pagar una fianza, entre ellas, permitir que la fianza se pague por tarjeta de crédito y a través del sistema de pago en línea, ya sea por parte de una persona en la cárcel o fuera de la misma;
f. Instituir un control y rastreo más riguroso de la aceptación de pagos de fianza por parte de los agentes policiales del FPD y los agentes penitenciarios del FPD;
g. Comenzar a expedir cheques de reintegro de la fianza inmediatamente luego que un acusado haya pagado íntegramente su multa y se le adeude un reintegro de fianza;
h. Asegurar que todo el personal del tribunal, los agentes de policía del FPD y los agentes penitenciarios del FPD entiendan las reglas y los procedimientos de Ferguson en materia de fianzas.
11. Proporcionar de manera sistemática las «Cartas de conformidad» necesarias para el restablecimiento de la licencia de conducir después de que la persona comparezca en el tribunal luego de una suspensión de su licencia de conducir
Conforme a la política oficial, el tribunal municipal proporciona cartas de conformidad a las personas a las que se les haya suspendido su licencia de conducir, conforme a la Sección 302.341.1 de la Ley Revisada de Missouri. Dichas cartas permiten retírela eliminación de la suspensión solamente después de que se haya pagado por completo la multa subyacente. Sin embargo, el personal del tribunal nos dijo que, en los «casos de simpatía», ellos proporcionan cartas de conformidad que facilitan el restablecimiento de las licencias de conducir de estos individuos. El tribunal debe adoptar e implementar una política de proveerles a las personas las cartas de conformidad inmediatamente luego que la persona comparezca ante el tribunal tras una suspensión de su licencia de conducir conforme a esta ley.
12. Cerrar casos que permanecen en el expediente del tribunal exclusivamente debido a cargos de incomparecencia o incautación de la fianza
En septiembre de 2014, la ciudad de Ferguson derogó las secciones 13 al 58 del Código Municipal de Ferguson, los cuales permitían la imposición de un cargo adicional por «Incomparecencia», así como de multas y recargos, como respuesta a faltas de comparecencia y pagos no realizados. Sin embargo, muchos casos permanecen pendientes en el expediente del tribunal exclusivamente debido a cargos, multas y recargos que se expidieron conforme a esta ley o debido a prácticas cuestionables de incautación de fianzas. La ciudad y el tribunal municipal deben:
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a. Cerrar todos los casos municipales en los que la persona haya pagado multas iguales o superiores a la multa impuesta por la transgresión del código municipal original, a través de multas o recargos por incomparecencia o pago de fianzas incautadas, y anular todas las órdenes de aprehensión relacionadas;
b. Eliminar todos los cargos, multas y recargos relacionados con la incomparecencia de los casos actuales y cerrar todos los casos en los que solamente queda pendiente un recargo, multa o cargo por incomparecencia;
c. Proporcionar cartas de conformidad inmediatamente de modo que puedan anularse las suspensiones de licencias de conducir para todas las personas cuyos casos se hayan cerrado de conformidad con estas reformas.
13. Colaborar con otras municipalidades y el Estado de Missouri para implementar las reformas
Estas recomendaciones se deben evaluar de manera detallada, y de ser apropiado, implementarlas en otras municipalidades. También recomendamos que la ciudad y otros municipios trabajen de manera colaborativa con el estado de Missouri sobre asuntos que requieren acción a nivel estatal y recomendamos además:
a. La reforma de la Ley Revisada de Missouri, Sección 302,341,1, que exige la suspensión de las licencias de conducir de las personas en ciertos casos en los que no comparecen o no pagan oportunamente sus infracciones de tránsito que implican que dicha infracción se cometió mientras el vehículo se encontraba en movimiento;
b. Mayor supervisión o control de los tribunales municipales en el Condado de St. Louis y en todo el estado de Missouri para asegurar que los tribunales operen de manera congruente con el proceso debido, la protección equitativa y otros requisitos de la Constitución y otras leyes.
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 REQUEST FOR APPLICATIONS

INDEPENDENT MONITOR 

Consent Decree Entered Regarding the City of Ferguson 
 May 12, 2016 

I. DESCRIPTION 

The United States and the City of Ferguson (“Ferguson” or the “City”) are seeking applications for an independent monitor (to include an inter-disciplinary team) to assess and guide implementation of a judicially-enforceable Consent Decree regarding the Ferguson Police Department (“FPD”) and the Municipal Court.
In September 2014, the U.S. Department of Justice initiated a civil pattern-or-practice investigation into the FPD and Ferguson Municipal Court. On March 4, 2015, the Department of Justice released a public report that detailed a pattern or practice of unlawful conduct by the FPD and Municipal Court. Although the City of Ferguson denies the existence of any current or past pattern or practice of unconstitutional conduct, following the report’s release, the City and the Department of Justice (collectively, the “Parties”) worked collaboratively over the next year to craft a Consent Decree designed to ensure constitutional policing and court practices for everyone who lives in, works in, and travels through Ferguson. The Department of Justice filed a Complaint on February 10, 2016, and shortly thereafter the Parties jointly moved the U.S. District Court for the Eastern District of Missouri (the “Court”) to approve and enter the Consent Decree to address the allegations in the Complaint and to avoid costly and protracted litigation. On April 19, 2016, the Court approved and entered the Consent Decree.
The Parties are seeking interested individuals, firms, or organizations to serve as the Independent Monitor (“Monitor”). Once selected and appointed by the Court, the Monitor and his or her team will assess implementation, provide technical assistance, and issue public reports on the City’s compliance with the Consent Decree.
This Request for Applications (“RFA”) is not part of, and shall not be governed by, any formal municipal, state, or federal procurement process. The Parties may seek and solicit information regarding interested parties through means other than this Request. Responders are advised that the Parties will not pay for any information or administrative costs incurred in response to this Request; all costs associated with responding to this Request will be solely at the Responder’s expense. Not responding to this Request does not preclude participation in any future RFA, if any is issued, nor does it eliminate an individual, firm, or organization from being considered to serve as the Monitor or a member of the Monitor’s team. Nevertheless, interested individuals, firms or organizations are strongly encouraged to respond to this Request.

II. SCOPE OF WORK
The Monitor will assist the Court and the Parties in assessing and assisting the City’s implementation of the Consent Decree. The Consent Decree specifies the duties and responsibilities of the Monitor, who will be subject to the supervision and orders of the Court.
Generally, the Monitor will provide objective and thorough assessments of whether the terms of the Consent Decree have been implemented and continue to be met, and whether implementation of the Consent Decree is resulting in the outcome required by the Consent Decree. The Monitor will assist in ensuring full and sustained implementation of the Consent Decree by offering technical assistance, issuing recommendations, soliciting information from and providing information to members of the public related to implementation of the Consent Decree, and preparing public reports on the Consent Decree’s implementation.
To carry out this work, the Monitor will be required to:
• Develop and implement a plan, including appropriate staffing and scheduling, for (1) reviewing policies, training curricula, and other written materials requiring Monitor approval; (2) evaluating and auditing whether the material requirements of the Consent Decree have been implemented; and (3) outcome assessments, including community surveys required by the Consent Decree (¶ 424);
• Develop, implement, and modify methodologies for and conduct reliable audits, reviews and outcome assessments of the City and FPD’s compliance with the Consent Decree (¶¶ 426-27);
• Provide technical assistance to the City and FPD, including recommending strategies to ensure that the City and the FPD are timely, fully, and effectively implementing the Consent Decree (¶ 428);
• Design, execute, and conduct reliable, comprehensive, and representative baseline and annual surveys of community members and police officers regarding their experiences with and perceptions of FPD, public safety, and the municipal court (¶¶ 429-31);
• Conduct qualitative and quantitative assessments (and review and recommend any changes to outcome measures listed in the Consent Decree), including but not limited to a three-year comprehensive assessment, to measure whether the City and FPD are engaging in constitutional and otherwise lawful law enforcement (¶¶ 434-437);
• Regularly (at least every six months) produce public and Court reports on the City and the FPD’s progress implementing the Consent Decree and any obstacles to implementation, as required by the Consent Decree (¶¶ 438-39);
• Regularly communicate—including via monthly meetings—with the Parties regarding the City and the FPD’s progress implementing and complying with the Consent Decree, any obstacles to implementation and compliance, and as otherwise necessary to facilitate effective implementation and compliance (¶ 440);
• Regularly communicate with a broad spectrum of community stakeholders to explain the Monitor’s reports and inform the public about the Consent Decree’s implementation process, and to hear community perspectives on police interactions (¶ 441);
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• Develop protocols to assess whether the Civilian Review Board (“CRB”) is representative of the broader Ferguson community and whether the CRB is effectively serving the civilian oversight functions described in Missouri law and the Consent Decree (¶ 410);
• Conduct regular (at least annual) data-based assessments of the impact of all police and court programs, initiatives, activities, and services to determine whether they impose a disparate impact on the basis of protected characteristics (¶ 73);
• Assist the City in developing a plan to regularly (at least monthly) audit citations, arrest notification forms, and other notices of violations used by officers to ensure proper, thorough and accurate completion as required by the Consent Decree (¶ 334);
• Assist the City in contracting with the provider of its current online payment system, or another qualified provider, to establish an online system through which a person charged with a violation can access specific case details (¶ 337);
• Conduct on-site visits and assessments, interview individuals, tour facilities, and review documents to facilitate the monitorship (¶¶ 442-47);
• Maintain all documents related to the monitorship in a confidential manner as required by the Consent Decree (¶ 448);
• Make public statements only as permitted by the terms of the Consent Decree (¶ 449); • Testify in proceedings only as provided by the Consent Decree (¶ 450); and • Maintain the highest ethical standards.
The substantive requirements of the Consent Decree are grouped into the following areas:
• Community Policing and Engagement; • Reform of the Ferguson Municipal Code; • Policies and Training; • Bias-Free Police and Court Practices; • Voluntary Contacts, Stops, Searches, Citations, and Arrests; • First Amendment Protected Activity; • Use of Force; • Crisis Intervention; • School Resource Officer Program; • Body-Worn and In-Car Cameras; • Supervision; • Officer Assistance and Support; • Recruitment; • Performance Evaluations and Promotions; • Supplemental Recruit and In-Service Training; • Municipal Court Reform; • Accountability; • Civilian Oversight; and • Data Collection, Reporting, and Transparency.
3 


The Monitor will not replace or assume the role and duties of the City or FPD, including the Chief of Police, or any other City official. Pursuant to the Consent Decree, the Chief of the FPD retains authority to run the police department in accordance with the laws of Ferguson, Missouri, and the United States. Similarly, the St. Louis County Circuit Court and Missouri Supreme Court will retain authority to oversee the Municipal Court in accordance with the laws of Ferguson, Missouri, and the United States.
III. QUALIFICATIONS
Experience in the following areas will be considered important, although lack of experience in any particular area will not necessarily disqualify a candidate:
 monitoring, auditing, evaluating, or otherwise reviewing performance of organizations such as law enforcement agencies, including experience monitoring settlements, consent decrees, or court orders;
 law enforcement practices, including use of force and investigations of force; search and seizure practices; constitutional policing; bias-free policing; community policing, problem-oriented policing and engagement; crisis intervention and de-escalation techniques; First Amendment speech and protest-related rights; intake, investigation, and adjudication of complaints of officer misconduct; civilian oversight; police-youth interactions; and officer and staff training;
 court practices, including bias-free practices; implementation of amnesty programs; transparency in court operations; judicial and prosecutorial independence; community service programs and fee scheduling;
 assessing legal sufficiency and compliance with constitutional and other legal 
 requirements; 

 familiarity and understanding of local issues and conditions;
 familiarity with federal and Missouri and local laws, including civil rights laws and policies and rules governing police and municipal court practices;
 evaluating, developing, or implementing processes for supervisors and managers to oversee training and accountability in a law enforcement organization;
 evaluating organizational change and institutional reform, including applying qualitative and quantitative analyses to assess progress, performance, and outcomes;
4 


 working with government agencies, including municipalities, elected officials, civilian oversight bodies, collective bargaining units, and community members interested in policing issues;
 engaging effectively with diverse community stakeholders to promote civic participation, strategic partnerships, and community policing;
 creation and evaluation of meaningful civilian oversight mechanisms;  language skills and experience working with limited English proficient persons and
communities, in particular communities whose primary language is Spanish;  mediation and dispute resolution, especially mediation of police complaints and
neighborhood mediation;  development of effective quality improvement practices;  use of technology and information systems—including data collection and management,
and analytic tools—to support and enhance law enforcement and court practices;  providing formal and informal feedback, technical assistance, training, and guidance to
law enforcement agencies;  reviewing policies, procedures, manuals, and other administrative orders or directives,
and training programs related to law enforcement practices;  institutional transformation and change management;  appearing in court as a judge, monitor, counsel, or expert witness, or providing other
types of testimony;  writing complex reports for dissemination to diverse sets of stakeholders;  statistical and data analysis;  experience with municipal budgets; and  completing projects within anticipated deadlines and budget.
5 


IV. REQUESTED INFORMATION 

The application to serve as the Monitor or the Monitor’s team for the Consent Decree should include the following:
A. Executive Summary
A brief description of who makes up the team; relevant experience of team members; any distinguishing skills or experiences; and proposed cost.
B. Personnel and Current Time Commitments
 The names of the individuals and/or subcontractor consultants who would comprise the team;
 A summary of the relevant background of each team member;
 The internal organization of the team including the areas of responsibility for each member; and
 A description of all other current employment, projects, or other professional undertakings for each team member, noting the team member’s time commitments for each.
C. Qualifications
Each team member’s qualifications, addressing the following areas as applicable:
 monitoring, auditing, evaluating, or otherwise reviewing performance of organizations such as law enforcement agencies, including experience monitoring settlements, consent decrees, or court orders;
 law enforcement practices, including use of force and investigations of force; search and seizure practices; constitutional policing; bias-free policing; community policing, problem-oriented policing and engagement; crisis intervention and de-escalation techniques; First Amendment speech and protest-related rights; intake, investigation, and adjudication of complaints of officer misconduct; civilian oversight; police-youth interactions; and officer and staff training;
 court practices, including bias-free practices; implementation of amnesty programs; transparency in court operations; judicial and prosecutorial independence; community service programs; and fee scheduling;
6 


 assessing legal sufficiency and compliance with constitutional and other legal requirements;
 familiarity and understanding of local issues and conditions;
 familiarity with federal and Missouri and local laws, including civil rights laws and policies and rules governing police and municipal court practices;
 evaluating, developing, or implementing processes for supervisors and managers to oversee training and accountability in a law enforcement organization;
 evaluating organizational change and institutional reform, including applying qualitative and quantitative analyses to assess progress, performance, and outcomes;
 working with government agencies, including municipalities, elected officials, civilian oversight bodies, collective bargaining units, and community members interested in policing issues;
 engaging effectively with diverse community stakeholders to promote civic participation, strategic partnerships, and community policing;
 creation and evaluation of meaningful civilian oversight mechanisms;
 language skills and experience working with limited English proficient persons and communities, in particular communities whose primary language is Spanish;
 mediation and dispute resolution, especially mediation of police complaints and neighborhood mediation;
 development of effective quality improvement practices;
 use of technology and information systems—including data collection and management, and analytic tools—to support and enhance law enforcement and court practices;
 providing formal and informal feedback, technical assistance, training, and guidance to law enforcement agencies;
 reviewing policies, procedures, manuals, and other administrative orders or directives, and training programs related to law enforcement practices;
 institutional transformation and change management;
 appearing in court as a judge, monitor, counsel, or expert witness, or providing other types of testimony;
7

 writing complex reports for dissemination to diverse sets of stakeholders;
 statistical and data analysis;
 experience with municipal budgets; and
 completing projects within anticipated deadlines and budget.
D. Prior Experience and References
List current or recent (within the past 10 years) project experience for members of the team relevant to the monitoring duties and responsibilities; references for each project listed, including the name of the organization, contact person, title, address, e-mail address and telephone number; and, if available, examples of non-confidential work product that is similar to the reports required for this project.
E. Potential Conflicts of Interest or Bias
Disclose any potential or perceived conflicts of interest involving the Monitor and/or any members of the Monitor’s team, associated firms or organizations, and any employee(s) assigned to the project, or proposed subcontractor(s), including current or former employment, contracts or grants with the City of Ferguson, the FPD, St. Louis County, the State of Missouri, or the United States and any involvement in the last eight years (whether paid or unpaid) with a claim or lawsuit by or against the City of Ferguson, the FPD, St. Louis County, the State of Missouri, or the United States or any of their officers, agents, or employees. Any close, familial, or business relationship with any of the mentioned entities, or their agents or employees, must be disclosed. Disclose whether any member of the team has been the proponent or subject of any complaint, claim, or lawsuit alleging misconduct. To the extent a conflict or potential bias exists, explain why it does not bar the individual’s or the team’s selection, including any legal or ethical opinions or waivers upon which the team relies.
Please note that, for the duration of the monitorship, neither the Monitor nor any member of the Monitor’s team shall be permitted to represent any individual or organization in any criminal or civil matter involving the United States Attorney’s Office, Eastern District of Missouri, the City of Ferguson, the FPD, or St. Louis County, including any individual or organization designated as a witness, victim, defendant, subject, target, or person of interest.
The following shall be ineligible for selection as the Monitor or as a member of the Monitor’s team: previous directors and chiefs of the FPD, previous prosecuting attorneys or judges of the municipal court, previous attorneys for the City, and individuals with past or pending legal claims against the City of Ferguson, the FPD, or St. Louis County.
8 


F. Estimated Costs
Provide a cost estimate for this project based on the above Scope of Work and the requirements of the Consent Decree. Please note that the Parties have agreed that monitoring shall not exceed $1.25 million over the first five years, or $350,000 for any single year.
• Include a projected budget for all costs including but not limited to: hourly billing rates, travel, sub-consultant/contractor services, overhead, and supplies.
• Break down the different activities that members of the team will perform (e.g., policy review, technical assistance, training assessment, report writing, and/or incident review).
• Include a projected allocation of hourly commitments by each team member, broken down by the number of hours projected for both on-site and off-site work.
• Take into account the uncertainty of the duration of the Consent Decree and include both one-time or fixed costs that are expected regardless of the duration of the contract, and annual costs that are expected for each year the contract is in effect. .
V. INFORMATION RESPONSES TO BE PUBLIC
The Parties have agreed to make public the applications submitted by all individuals and entities that respond to this request. Applicants are advised not to include in their responses any trade secrets, proprietary information, or other information they do not want made public.
Applications must be submitted to the City and Department of Justice simultaneously and received by Friday, June 10, 2016, at 5:00 p.m. EST. Applications must be submitted in both electronic form and hard copy to the individuals listed below. Hard copies should be sent by USPS Priority Mail or overnight carrier (e.g., FedEx, UPS, DHL) to ensure timely delivery. Please state “FPD Monitoring Application” in the email subject line and on the package containing the application.
For the United States Department of Justice:
Amy Senier Trial Attorney Civil Rights Division U.S. Department of Justice 601 D Street, NW Washington, D.C. 20006 202-514-2000 Amy.Senier@usdoj.gov
9 


For the City of Ferguson: Jared L. Hasten Winston & Strawn LLP 35 West Wacker Drive Chicago, Illinois 60601 (312) 558-5600 jhasten@winston.com De’Carlon Seewood City Manager City of Ferguson 110 Church Street Ferguson, Missouri 63135 The report of the United States’ findings is available at: https://www.justice.gov/sites/default/files/crt/legacy/2015/03/04/ferguson_findings_3-4-15.pdf The United States’ Complaint against the City is available at: https://www.justice.gov/crt/case­ document/united-states-v-city-ferguson-complaint The Consent Decree is available at: https://www.justice.gov/crt/case-document/united-states-v­ city-ferguson-consent-decree
10 


 
 UNITED STATES DISTRICT COURT
 EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION


UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF FERGUSON, MISSOURI,
Defendant.

)
 )
 )
 )
 ) No. 4:16-CV-180-CDP
 )
 )
 )
 )


MOTION HEARING

BEFORE THE HONORABLE CATHERINE D. PERRY
 UNITED STATES DISTRICT JUDGE

APRIL 19, 2016


APPEARANCES:
 For Plaintiff:

Jude J. Volek, Esq.
 Christy Ellen Lopez, Esq.
 Amy Senier, Esq.
 Charles Wesley Hart, Jr., Esq.
 Chiraag Bains, Esq.
 UNITED STATES DEPARTMENT OF JUSTICE


For Defendant:

Dan Keith Webb, Esq.
 Jared Lyons Hasten, Esq.
 WINSTON & STRAWN LLP


Stephanie Karr, Esq.
 CURTIS, HEINZ, GARRETT & O'KEEFE


REPORTED BY:

Gayle D. Madden, CSR, RDR, CRR


Official Court Reporter


United States District Court


111 South Tenth Street, Third Floor


St. Louis, MO 63102

(314) 244-7987


(Produced by computer-aided mechanical stenography.)


INDEX


4/19/2016 Motion Hearing
 2

Opening Statement by Mr. Volek . . . . . . . . . . . Page 8
 Opening Statement by Mr. Webb . . . . . . . . . . . . Page 21


Public Comments:
 Luz Maria Henríquez . . . . . . . . . . . . . . Page 27
 Paul Berry III . . . . . . . . . . . . . . . . . Page 30
 Mark Timmerman . . . . . . . . . . . . . . . . . Page 34
 Emily Davis . . . . . . . . . . . . . . . . . . Page 37
 John Powell . . . . . . . . . . . . . . . . . . Page 42
 Angelique A. Kidd . . . . . . . . . . . . . . . Page 45
 Karl Tricamo . . . . . . . . . . . . . . . . . . Page 49
 John Chasnoff . . . . . . . . . . . . . . . . . Page 52
 Christine Assefa . . . . . . . . . . . . . . . . Page 57
 Daryl Meese . . . . . . . . . . . . . . . . . . Page 60
 Carlton Mayers II . . . . . . . . . . . . . . . Page 64
 Rick Brenton . . . . . . . . . . . . . . . . . . Page 67
 Joe Lynett . . . . . . . . . . . . . . . . . . . Page 71
 Dara Ashby . . . . . . . . . . . . . . . . . . . Page 72
 Mae Quinn . . . . . . . . . . . . . . . . . . . Page 74
 Blake Ashby . . . . . . . . . . . . . . . . . . Page 77
 Anthony Rothert . . . . . . . . . . . . . . . . Page 81
 Felicia Pulliam . . . . . . . . . . . . . . . . Page 84
 Denise Lieberman . . . . . . . . . . . . . . . . Page 87
 Mildred Clines . . . . . . . . . . . . . . . . . Page 91
 Robert Wells . . . . . . . . . . . . . . . . . . Page 93
 Sandy Hunter . . . . . . . . . . . . . . . . . . Page 96
 Jean Boettcher . . . . . . . . . . . . . . . . . Page 100
 Heather De Mian . . . . . . . . . . . . . . . . Page 103
 Sarah Glenn . . . . . . . . . . . . . . . . . . Page 106
 Debra J. Kennedy . . . . . . . . . . . . . . . . Page 110
 Steven Hoffmann . . . . . . . . . . . . . . . . Page 115
 Keith Rose . . . . . . . . . . . . . . . . . . . Page 118
 Joseph McAllister . . . . . . . . . . . . . . . Page 121
 Cassandra Butler . . . . . . . . . . . . . . . . Page 123
 Christopher Phillips . . . . . . . . . . . . . . Page 126
 Glenda Rickard . . . . . . . . . . . . . . . . . Page 130


Closing Argument by Ms. Lopez . . . . . . . . . . . . Page 133
 Statement by Mayor James Knowles III . . . . . . . . Page 157
 Closing Argument by Mr. Webb . . . . . . . . . . . . Page 158


Ruling by The Court
 (See previously filed excerpted transcript, Document #43 on
 CM/ECF.)


4/19/2016 Motion Hearing


3

1


THE COURT: All right. Good morning. We are here in


2
 the case of United States of America versus the City of


3
 Ferguson. This is Case No. 4:16-CV-180. I would start by


4
 asking counsel for the Plaintiffs to please stand and identify


5
 themselves for the record.


6


MS. LOPEZ: Your Honor, I'm -- Your Honor, I'm


7
 Christy Lopez. I'm a deputy chief in the Special Litigation


8
 Section of the Civil Rights Division.


9


THE COURT:
 All right.


10


MR. VOLEK:
 Jude Volek for the United States, Civil


11
 Rights Division.


12


THE COURT:
 All right.


13


MS. SENIER:
 Amy Senier for the United States, Civil


14
 Rights Division.


15


THE COURT:
 Thank you.


16


MR. HART:
 Charles Hart for the United States, Civil


17
 Rights Division.


18


THE COURT:
 All right.


19


MR. BAINS:
 Chiraag Bains for the United States.


20


THE COURT:
 All right. And you all have a client


21
 with you as well? Okay. I had her on the seating chart.


22
 That's fine.


23


For the Defendants, would you all -­

24


MR. WEBB: Your Honor, my name is Dan Webb, of the


25
 law firm of Winstron Strawn, and I'm a chief counsel for the


4/19/2016 Motion Hearing

4 1
 City of Ferguson in this matter. Joining me at counsel table


2
 is Jared Hasten, also from the same law firm, and Stephanie


3
 Karr is also at counsel table. She is counsel to the City of


4
 Ferguson.


5


THE COURT: Right. And I realize that. I had her


6
 written down on the other chart. So that was why I was asking


7
 the Plaintiff's lawyers about that. Thank you, Mr. Webb.


8


MR. WEBB: And we do have some client representatives


9
 here if you would like me to introduce those to Your Honor at


10
 this time.


11


THE COURT: Yes. That would be nice.


12


MR. WEBB: We have Mayor Knowles -- stand up


13
 please -- is here in court, and we have Councilwoman Ella


14
 Jones is in court. Thank you. And we have Councilwoman


15
 Laverne Mitchom is in court.


16


THE COURT: All right. Thank you.


17


MR. WEBB: Thank you, Your Honor.


18


THE COURT: All right. So as you all know, this is a


19
 hearing on the joint motion filed by the parties for approval


20
 of the Consent Decree, which is their settlement agreement


21
 relating to this case.


22


Oh, before I do -- I begin, I do want to remind


23
 everyone, and I know the court staff has already told you


24
 this, but it is the policy of the Judicial Conference of the


25 United States that we don't have any recording of any sort in


4/19/2016 Motion Hearing

5 1 court proceedings, and so everyone -- no one can record

2 anything. And additionally, it's the policy of our court that

3 all electronic devices must be powered off before you enter

4 the courtroom. So just as I tell the juries in every case, if

5 you have one in your pocket, please pull it out and turn off

6 the power at this time. It needs to be completely powered

7 off, not on vibrate or silent, but completely turned off, and

8 every time I tell that to a group of jurors, some people pull

9 it out of their pockets and turn them off. So I hope you all

10 will do that.

11

And if -- it looks like we have plenty of room here

12 in the hearing room. We do have an overflow room set up if

13 there were a need for it, but it looks like there's not a need

14 for that.

15

So as I started to say, the United States, who is the

16 Plaintiff in this case, and the City of Ferguson, who's the

17 Defendant, have filed a joint motion asking me to approve

18 their Consent Decree, and they asked me in that motion to

19 conduct this hearing and allow members of the public to be

20 heard. I did enter an order on March 28th setting this

21 hearing and establishing the ground rules. Normally, at a

22 hearing to approve a settlement or, actually, any hearing in

23 court, only the lawyers for the parties would speak.

24 Sometimes they would call witnesses, but normally, for -- in

25 terms of speaking and arguing to the Court, we only hear from

4/19/2016 Motion Hearing

6 1 the lawyers, but I am hearing from others in this case because

2 the lawyers asked me to and because I agreed with them that it

3 was in the interest of justice for members of the community to

4 be heard.

5

I have received written comments from 23 people or

6 organizations. Those were posted on the Court's webpage, and

7 I have read them.

8

Before we begin, I will say that the issue before me

9 is whether I should approve or disapprove the Consent Decree.

10 I cannot rewrite it. I am not here -- I'm not allowed under

11 the law to negotiate it. If I don't approve it, then this

12 case will move forward just like any other lawsuit and we will

13 set a schedule for discovery, depositions, motions, trial and

14 proceed just like any other lawsuit.

15

This is a settlement entered into by the parties, and

16 the standard I'm to apply under the law is whether it's fair,

17 adequate, and reasonable under all of the circumstances and

18 the law of this case.

19

So here's how we'll proceed today. First, I'm going

20 to ask the counsel for the United States as the Plaintiff to

21 speak and then counsel for the City of Ferguson to speak. If

22 they wish to have any of their client representatives speak,

23 they may do so. I'll then hear comments from the public in

24 the order they signed up. I know a couple of people signed up

25 right after 9:00, but there's only 32 people total. So you

4/19/2016 Motion Hearing

7 1
 all will be allowed to speak and will speak in the order that


2
 you signed up.


3


There's a light system on the lectern. So everybody


4
 needs to come up to the lectern to speak. There's a light


5
 system, and when members of the public start speaking, it will


6
 begin timing your five minutes. You'll see the counter on it


7
 that tells you how much time is elapsed or you have left. At


8
 four minutes, the yellow light will come on to tell you your


9
 time is almost up, and at five minutes, the red light will


10
 start flashing. This is -- we borrowed this from the Court of


11
 Appeals. It's the light system they usually use up there. So


12
 that way you'll know when your five minutes is up. It's


13
 preprogrammed. Everybody gets the same time for all the


14
 members of the public who are speaking.


15


So -- oh, and additionally, I would ask, for the


16
 members of the public who are speaking, when you speak, if you


17
 will state your name clearly and also state what municipality


18
 or town, or if you live in an unincorporated area, tell us


19
 that so that we -- you don't need to state your home address


20
 but just your town or municipality so it will be clear where


21
 you live when you make your statements.


22


So with that, I would ask the United States, whoever


23
 is speaking -- Mr. Volek, I guess -- to proceed.


24


Oh, and then after all the public comments, I'll hear


25 further comments from the lawyers.


4/19/2016 Motion Hearing


8

1

MR. VOLEK: Good morning, Your Honor. Jude Volek for

2 the United States. Following a thorough investigation of the

3 Ferguson Police Department that found a pattern or practice of

4 conduct that violates rights protected by the Constitution and

5 laws of the United States and after months of intensive

6 negotiations, the United States and the City of Ferguson have

7 entered an agreement to resolve this litigation and bring

8 about the reforms needed to secure constitutional policing and

9 court practices in Ferguson. The parties have submitted that

10 agreement to this Court as a proposed Consent Decree.

11

THE COURT: Could you pull that mike a little closer

12 to you? Scoot the base so it's closer to you.

13

MR. VOLEK: Is that better?

14

THE COURT: Yeah.

15

MR. VOLEK: The parties have submitted that agreement

16 to this Court as a proposed Consent Decree, and we appear

17 together today to request that the Consent Decree be approved

18 and entered as an Order of the Court. Entering the Consent

19 Decree would be a critical step towards correcting the

20 constitutional violations in the complaint, restoring trust

21 between law enforcement officers in Ferguson and the people

22 they serve, and ensuring that the basic constitutional rights

23 of the entire Ferguson community are protected.

24

As set forth in the parties' joint motion, the

25 question before the Court is whether the Consent Decree is

4/19/2016 Motion Hearing

9 1 fair, reasonable, and adequate to address the allegations

2 brought by the United States. In making this determination,

3 courts balance several factors, including whether the proposed

4 settlement is the result of a fair process conducted in good

5 faith as well as whether the settlement resolves the dispute

6 that's pending before the court and furthers the objectives of

7 the law on which the complaint was brought.

8

In considering these factors, there's a presumption

9 in favor of approving settlement agreements. That presumption

10 is especially strong here where the government -- where the

11 parties are government -- are government entities committed to

12 the protection of the public interests. Accordingly, if the

13 Court finds that the decree submitted by the parties is fair,

14 reasonable, and adequate, this Consent Decree should be

15 approved.

16

The Consent Decree here does meet the fair,

17 reasonable, and adequate standard. First, the Consent Decree

18 is the result of a fair process. The decree is grounded in a

19 comprehensive investigation of the Ferguson Police Department

20 and was forged through arm's length negotiations between the

21 parties. Second, the substantive requirements of the Consent

22 Decree are specifically tailored to remedy the constitutional

23 violations that are alleged in the United States' complaint,

24 and their implementation will further the public's interest in

25 ensuring lawful and effective policing. I will discuss each

1 of these two points in turn.

4/19/2016 Motion Hearing
 10

2

The United States opened a civil investigation of the

3 Ferguson Police Department in September 2014, under 42 U.S.C.

4 § 14141. That law was passed in 1994 to give the United

5 States authority to remedy patterns or practices of

6 unconstitutional conduct within law enforcement agencies. The

7 investigation was conducted by a team of lawyers and other

8 staff from the Civil Rights Division of the United States

9 Department of Justice.

10

The investigation included the review of over 35,000

11 pages of records, including police reports, policies and

12 procedures, training materials, investigative files, and

13 emails sent by City officials.

14

The United States spent over 100 person days on site

15 in Ferguson, participating in ride-alongs with officers,

16 observing municipal court sessions, and gathering information

17 through interviews and meetings with Ferguson officials,

18 including the Mayor, the City Manager, the City Finance

19 Director, the Municipal Judge, the Clerk of Court, and the

20 Chief of Police as well as more than half of the sworn

21 officers within the Ferguson Police Department.

22

The United States also met with a broad range of

23 individuals who live in, work in, or travel through the city

24 of Ferguson. We held a community meeting attended by roughly

25 300 people and held a series of smaller meetings that were

4/19/2016 Motion Hearing

11 1
 open to all members of the public. We reached out to every


2
 neighborhood association in Ferguson, and we met with every


3
 group that responded to us. We set up a community email and


4
 phone number to solicit information from the public, and we


5
 carefully considered the views of all individuals who reached


6
 out to us, no matter what the content of their comments were.


7


Throughout this process, the United States was


8
 assisted by law enforcement experts, including two chiefs of


9
 mid-sized police departments.


10


This thorough and careful investigation found a


11
 pattern or practice of conduct that violated the First,


12
 Fourth, and Fourteenth Amendments to the Constitution. This


13
 conduct includes unlawful stops, searches, and arrests,


14
 excessive force, interference with the right of free


15
 expression and the right to record public police activity, and


16
 court practices that violate due process and equal protection.


17
 The investigation also found that these practices


18
 disproportionately impact African-Americans at nearly every


19
 stage, from initial stop to the final resolution of the case,


20
 and that this racially disparate impact is motivated, at least


21
 in part, by intentional discrimination.


22


The investigation also made findings regarding the


23
 root causes of this unlawful conduct, including that the City


24
 had prioritized revenue generation over public safety needs


25 and the rights of community members. The evidence also showed


4/19/2016 Motion Hearing

12 1
 other systemic deficiencies that enabled unlawful conduct to


2
 develop and to persist, including a lack of basic systems for


3
 training and supervising officers and for holding officers who


4
 commit misconduct accountable.


5


These findings are set forth in a detailed March 2015


6
 report issued by the United States. They're also reflected in


7
 the United States' complaint in this case, which the Consent


8
 Decree seeks to resolve.


9


After releasing its investigative findings, the


10
 United States began developing a proposed settlement agreement


11
 that would serve as the starting point for negotiations with


12
 the City of Ferguson and ultimately become the Consent Decree


13
 pending before the Court.


14


The United States began this process by soliciting


15
 input from local stakeholders. On March 26th, 2015, for


16
 instance, we held a large group meeting, open to all members


17
 of the public, where individuals broke into groups and


18
 brainstormed ideas for reform, many of which were incorporated


19
 into the decree. Aware that a community group was conducting


20
 a survey of area residents to gather views on needed reforms,


21
 the United States delayed finalizing its initial settlement


22
 proposal until it had the opportunity to review the findings


23
 of that survey. The United States also held a series of


24
 smaller meetings, met with everyone who asked to meet with us,


25 and, again, carefully considered all views expressed. At the


4/19/2016 Motion Hearing

13 1 same time as they collected local input, the United States

2 also consulted with law enforcement experts and drew upon its

3 own experience in working to bring about constitutional

4 policing in jurisdictions around the country. These diverse

5 perspectives were all critical to informing the United States'

6 initial proposal, which was sent to the City of Ferguson in

7 July of 2015.

8

The parties then began what would ultimately be seven

9 months of fair, arm's length, and intensive negotiations.

10 Both City and United States representatives in these

11 negotiations were intimately familiar with the City's law

12 enforcement practices. Both sides were represented by legal

13 counsel, with the City Attorney and the City's retained

14 outside counsel present throughout negotiations, and both

15 parties were aided by law enforcement experts to ensure that

16 each requirement of the decree could be successfully

17 implemented.

18

Ferguson's interim police chief was present during

19 negotiations as was the City's retained expert for community

20 policing. Each provision within the decree was heavily

21 negotiated during this process, and the City's concerns were

22 taken seriously, fully considered, and fully negotiated. This

23 equitable process has yielded a Consent Decree that sets forth

24 fair, reasonable, and adequate -- a fair, reasonable, and

25 adequate blueprint for reform that is specifically tailored to

4/19/2016 Motion Hearing

14 1 the allegations within the United States' complaint.

2

The decree contains requirements that address each

3 area of law enforcement conduct that the United States found

4 violates the Constitution. The decree includes provisions

5 that address Ferguson's stop, search, and arrest practices and

6 that reorient Ferguson's use of force policies towards

7 deescalation and avoiding force except where necessary.

8 Requirements are included that are aimed at ensuring that

9 officers do not interfere with activity protected by the First

10 Amendment. The decree includes requirements that ensure that

11 the City's prosecutor and municipal court handle cases in a

12 manner that respects the due process and equal protection

13 rights of all individuals who appear before the court. And

14 the decree contains measures that are designed to ensure that

15 police and court services are provided free from unlawful

16 bias, including through the delivery of bias awareness

17 training for all police and court staff.

18

In addition, the Consent Decree addresses the full

19 range of systemic deficiencies that allowed the alleged

20 misconduct in those different areas to develop and to endure.

21 The decree contains remedial measures aimed at correcting

22 those deficiencies to ensure that the pattern or practice of

23 conduct that the United States found is effectively remedied.

24 System-wide problems require system-wide solutions.

25

The decree requires the City to develop a community

4/19/2016 Motion Hearing

15 1 engagement strategy that makes policing in Ferguson more

2 community-oriented and that brings about meaningful engagement

3 between Ferguson police officers and all segments of the

4 community, with particular focus on those who have not

5 previously had positive relationships with the police

6 department.

7

The decree requires revisions to the City's Municipal

8 Code to ensure that it comports with the Constitution and is

9 not used in a manner that harms Ferguson's most vulnerable

10 residents.

11

The decree requires that officers receive clear and

12 appropriate direction through policies and effective training.

13

The decree contains provisions aimed at ensuring that

14 the Ferguson Police Department responds appropriately to

15 individuals in mental health crisis and that Ferguson school

16 resource officers have the tools and training that they need

17 to put -- to work lawfully and fairly with youth.

18

The decree requires the use of body-worn and in-car

19 cameras and sets forth sensible requirements to ensure that

20 those tools are used in a manner that promotes transparency

21 and accountability while also respecting individual privacy

22 rights.

23

The decree requires that officers receive the close

24 and effective supervision they need, including through the use

25 of an early intervention system that will help supervisors

4/19/2016 Motion Hearing

16 1 become aware of and timely address problematic behavior.

2 Recognizing that policing is a difficult, high-stress

3 occupation, the decree contains specific provisions to ensure

4 that officers and their families receive the assistance and

5 the support that they need.

6

The decree requires the City to develop a recruitment

7 plan aimed at hiring and retaining a diverse workforce of

8 highly qualified officers and ensuring that officers who

9 police effectively, lawfully, and ethically are rewarded

10 through performance evaluations and promotions.

11

The decree requires a robust accountability system

12 that ensures that misconduct complaints are fully and fairly

13 investigated and that requires truthfulness from all officers

14 and that holds officers accountable when they commit

15 misconduct.

16

The decree also requires the creation of a Civilian

17 Review Board that will make findings and recommend

18 disciplinary action for investigations of certain misconduct

19 complaints, and the decree contains specific provisions giving

20 that Civilian Review Board access and support that they need

21 to perform their jobs effectively.

22

The decree requires the collection of accurate and

23 reliable data that is needed to fully assess Ferguson's law

24 enforcement activities. To make Ferguson's law enforcement

25 activities more transparent to the public, this section of the

4/19/2016 Motion Hearing

17 1 decree also requires the City to produce an annual report with

2 this data and other relevant information.

3

Each of these substantive areas of the decree

4 responds to a specific systemic deficiency that contributes to

5 the pattern or practice of conduct that the United States has

6 alleged, and each area of the decree sets forth sufficient

7 detail to establish clear obligations that the City must meet.

8

Now, to be sure, these provisions do not delineate

9 every single obligation or every single reform that the City

10 is going to make. Certain areas of the decree leave

11 particular details of reforms to be developed in policy. To

12 ensure that those specific details are also consistent with

13 the goals of constitutional policing, the decree provides that

14 all policies must be reviewed and approved by the United

15 States and the Monitor. Thus, while the decree establishes

16 the core reforms that must be made, the decree also leaves a

17 reasonable amount of discretion to the parties regarding the

18 specific shape that reform takes.

19

Finally and critically, the Consent Decree recognizes

20 that meaningful, sustainable, and lasting reform will require

21 that these measures are part of a remedial process that is

22 subject to independent oversight. That oversight is provided

23 by this Court and an independent Monitor to be selected by the

24 parties and approved by the Court. The Monitor will assess

25 the City's efforts at implementing the decree and will also

4/19/2016 Motion Hearing

18 1
 provide technical assistance to the City to help ensure that


2
 those efforts are carried out successfully. The appointment


3
 of a knowledgeable and experienced Monitor will ultimately


4
 save the resources of the parties and the Court and will


5
 provide the credible oversight that's needed to instill public


6
 confidence in the reform process. If the decree is approved,


7
 the parties will immediately begin to work on the process of


8
 selecting a highly qualified Monitor.


9


In sum, this Consent Decree sets forth a


10
 comprehensive set of reforms that if carefully implemented


11
 will be adequate to address the allegations in the United


12
 States' complaint. And the provisions of the Consent Decree


13
 also both reflect a broad range of community input that has


14
 already been received and establish clear avenues for the


15
 community to provide input going forward during the


16
 implementation process. Although the parties engaged in


17
 bilateral negotiations to ensure their ability to reach a


18
 final agreement, the decree has been informed by the broad


19
 range of perspectives that have been solicited throughout this


20
 process, both during the investigation and throughout


21
 negotiations. The United States is grateful to the important


22
 perspectives that community members have shared throughout,


23
 and we are grateful to those who have submitted their views to


24
 this Court in writing and who have appeared today to submit


25 their views in person.


4/19/2016 Motion Hearing


19

1


To ensure that the community continues to be able to


2
 provide input into this process, the Consent Decree also sets


3
 forth specific avenues for community involvement during


4
 implementation. As but a few examples, the Consent Decree


5
 establishes a Civilian Review Board that allows for the


6
 civilians to play a role in meaningful oversight. The Consent


7
 Decree also establishes a committee -- the Consent Decree also


8
 requires a committee that will be used to advise law


9
 enforcement in Ferguson and reorient law enforcement in


10
 Ferguson towards community priorities. And the Consent Decree


11
 also establishes a Training Committee with civilian members to


12
 ensure that civilians have a role in shaping what training


13
 officers receive. Finally, the Consent Decree makes law


14
 enforcement activities in Ferguson more transparent so that


15
 members of the public can understand better what law


16
 enforcement is doing in their -- in their city. Through these


17
 and other avenues, the decree recognizes that the community's


18
 involvement is critical to the success of the decree and


19
 ensuring that the reforms endure long after the decree comes


20
 to an end.


21


Ultimately, this Consent Decree marks a fair and


22
 equitable resolution to this matter that will benefit the


23
 people of Ferguson, both by avoiding long and contentious


24
 litigation and by helping to ensure that Ferguson's police


25 department and municipal court respect the rights of all


1 community members.

4/19/2016 Motion Hearing
 20

2

The decree will benefit officers by providing them

3 with the support, guidance, and training that they need to

4 perform their duties safely, lawfully, and effectively. And

5 the decree will ultimately help restore trust between those

6 officers and the communities they serve.

7

The decree is thus firmly in the public interest, and

8 by ensuring constitutional policing, the decree advances the

9 interests of the laws upon which this case has been initiated.

10

To be sure, the constitutional violations that the

11 United States has found are profound, and they took years to

12 develop, and correcting those violations will require careful

13 and dedicated implementation of the Consent Decree.

14

In that regard, the United States is encouraged by

15 the City's commitment to reform, and we stand ready to work

16 cooperatively with the City of Ferguson and all members of the

17 Ferguson community throughout the implementation process to

18 help ensure that the Consent Decree succeeds at bringing about

19 meaningful and lasting reform.

20

We respectfully ask that the Court approve the

21 Consent Decree as fair, reasonable, and adequate so that the

22 parties can begin this critically important work.

23

Thank you.

24

THE COURT: All right. Thank you.

25

Mr. Webb, I'll hear on behalf of the Defendant.

4/19/2016 Motion Hearing


21

1

MR. WEBB: Yes, Your Honor. Thank you very much.

2 Again, it's Dan Webb on behalf of the City of Ferguson. And,

3 Your Honor, on behalf of the City of Ferguson, as Your Honor

4 knows, we have joined in this joint memorandum and motion that

5 we've filed with the Court to ask Your Honor to consider the

6 evidence and have this hearing and to ultimately approve the

7 Consent Decree, and we've set forth the reasons in our -- in

8 the joint memorandum, and let me give Your Honor just a little

9 background to support why we're asking you to approve this

10 Consent Decree, and I'll take Your Honor back.

11

When I got involved, it was a year ago. Right now a

12 year ago, I got asked by the City of Ferguson to meet with

13 them and I did. I went and met with the folks at the City

14 Council and found out their view about what had happened. At

15 that point, there had been a report issued in March by the

16 Department of Justice that reached a number of findings. I

17 talked to the folks in Ferguson, and I took a group of them,

18 including the Mayor, to DC to meet with the folks on my left

19 here, to talk to the people at the Department of Justice. At

20 that meeting, that meeting lasted a good part of a day. That

21 set the stage for why we're here today.

22

And in that meeting -- and Ms. Vanita Gupta was there

23 also for a period of time -- was the head of the Civil Rights

24 Division, and I found people on the other side of the table

25 that were willing -- and reasonable -- to listen about how

4/19/2016 Motion Hearing

22 1
 this case should go forward, and we had a discussion, and the


2
 basic framework was laid out at the beginning by me,


3
 explaining that we had read this report, this March report,


4
 and the fact is we strongly disagreed with the vast majority


5
 of the conclusions in that report and that there had not been


6
 a pattern and practice of unconstitutional policing practices


7
 or court conduct. But at the same time, I explained to the


8
 members of the Department of Justice that while I had spent


9
 most of my adult life in the courtroom trying cases, this case


10
 should be resolved and we should find common grounds to bring


11
 this case to an end and not end up in litigation for three or


12
 four years.


13


And I walked through our position that if we had to


14
 go to trial in this case some day, if we had to, why the party


15
 with the burden of proof, the Government, would lose this case


16
 in a court of law based on the facts. At the same time, I


17
 explained that, you know, I'm representing a small town in


18
 Missouri that should not be spending money on lawyers. They


19
 should be spending money on moving forward to make sure that


20
 they are engaging in the type of conduct that the Department


21
 of Justice wanted in order to ensure constitutional policing


22
 practices and court practices in the city of Ferguson, and


23
 that to have money spent for years on lawyers in a small town


24
 with very limited budgetary resources was a mistake on our


25 part to do that and that I wanted to find common ground to


4/19/2016 Motion Hearing

23 1
 find a way to negotiate a resolution and bring this matter so


2
 it could be put behind the city of Ferguson and could ensure


3
 DOJ that this town was committed to constitutional policing


4
 and court practices.


5


That meeting was the beginning of a process that took


6
 place over a long period of time, and that process was


7
 meetings and telephone calls where lawyers, including the ones


8
 at counsel table here and the parties over here on my left,


9
 and plus my clients -- we were down in the trenches together.


10
 The Mayor and members of the City Council, we had meeting


11
 after meeting, and we fought hard to come up with a settlement


12
 proposal that would be fair to both sides, and as in all


13
 settlement discussions, Your Honor, neither side got


14
 everything they wanted. I will tell you right now that I


15
 didn't get everything I wanted on behalf of my client, and I


16
 think the honest truth is DOJ did not get everything that they


17
 wanted, but we didn't give up on it. We hit loggerheads. We


18
 had impasses, but we continued to work at it because both our


19
 goals on both sides was to see before we end up in litigation,


20
 spending that money and all the resources that it would take


21
 to do it, let's keep working at finding a way to bring this to


22
 a successful conclusion. Draft after draft of settlement


23
 agreements went around. Meetings and conversations and


24
 arguments back and forth that took place by -- by very


25 dedicated lawyers, I dare say, on both sides. But with my


4/19/2016 Motion Hearing

24 1
 clients, they're with us, going through a process to find out


2
 if there was a fair and reasonable way to bring this to a


3
 resolution, and what you now have in front of you, Your Honor,


4
 in the form of this Consent Decree, I believe, accomplishes


5
 the goal that we all set out in that meeting a year ago at the


6
 Department of Justice to accomplish, which is to come up with


7
 a fair, adequate, and reasonable Consent Decree. And while


8
 we, as Your Honor knows, have not admitted and never


9
 acknowledged that the conduct that took place was illegal


10
 because we don't believe it did, it doesn't mean that the


11
 people of that city should be spending their time focused on


12
 arguing legal strategy when they should be moving forward with


13
 a proposal that would satisfy the Department of Justice and


14
 bring confidence that that city is moving forward with


15
 ensuring constitutional court and police practices.


16


The result, as Your Honor has now in front of you, is


17
 that arm's length, hard-fought negotiation that led to the


18
 Consent Decree that you now have in front of you, and if you


19
 look at the Eighth Circuit law, which I know Your Honor has -­

20
 and Your Honor has mentioned it -- and the prosecutor or the


21
 members of the Department of Justice have mentioned it -­

22
 there's three things that we need to satisfy Your Honor of,


23
 that we need to make sure that this is a report that is fair,


24
 that this Consent Decree is fair, that it's reasonable, and


25 that it is an adequate decree, and I believe that all of those


4/19/2016 Motion Hearing

25 1
 conditions have been satisfied in connection with the Consent


2
 Decree that you now have in front of you.


3


Let me just walk through the basic points. Is it


4
 fair? Is this a fair decree? I believe that the provisions


5
 of this Consent Decree address the concerns raised by the


6
 Government, but what they also allow to do is they allow the


7
 City to continue to focus on its own reform efforts in its


8
 police department and municipal courts to ensure that there


9
 are constitutional policing and court practices.


10


After the tragic events in Ferguson, Your Honor,


11
 after they occurred, even before that first meeting at the


12
 Department of Justice, I'm telling Your Honor people here in


13
 court, the Mayor, and others were already started on processes


14
 and practices to come up with ideas, concepts that could be


15
 presented to the Department of Justice as a way to move


16
 forward, and that was already ongoing before that first


17
 meeting even took place, and so what you see here now is that


18
 I believe that it is fair. It's fair to both sides, and it


19
 results in the confidence that the public and the Court can


20
 have that there's constitutional practices both in the court


21
 and the police department, but it's fair to both sides.


22


Number two, I think it's reasonable. The reforms


23
 identified in the Consent Decree, which counsel for the


24
 Government has adequately -- more than adequately summarized


25 for Your Honor, but involving community involve -- the


4/19/2016 Motion Hearing

26 1 community involvement, number one, the policies, the training,

2 the civilian oversight, the accountability, and the municipal

3 court reforms -- these were areas that my client agreed. They

4 already had started to focus on those issues, and as this

5 process unfolded over the next eight or nine months as we

6 negotiated the settlement, we believed that it is reasonable

7 and it's a reasonable approach to take.

8

Lastly, it's adequate. It clearly, adequately

9 addresses the concerns that were raised by the Department of

10 Justice and, at the same time, does not go beyond what is

11 needed in order to give the public -- and I would effectively

12 suggest the Court -- the confidence to move forward with this,

13 with this effort.

14

And so based on the fact that all three of the Eighth

15 Circuit requirements, I believe, have been satisfied, to the

16 Consent Decree, for those reasons, we respectfully join the

17 Government requesting that you have the hearing today, and we

18 would recommend that you approve the Consent Decree.

19

THE COURT: Thank you, Mr. Webb. Do any of your

20 client representatives wish to be heard at this time?

21

MR. WEBB: Do you want to be heard? Any of you? We

22 hadn't talked about it. Do you want to be heard right now?

23

MR. JAMES KNOWLES III: No.

24

MR. WEBB: That's fine.

25

I think I've spoken on behalf of them, Your Honor.

4/19/2016 Motion Hearing


27

1

THE COURT: Okay. Yeah. That's fine.

2

All right. We're ready then to hear comments from

3 the members of the public who have signed up, and I believe

4 there's a Luz Maria Henríquez. Sorry if I'm mispronouncing

5 your name, ma'am. Henríquez?

6

MS. LUZ MARIA HENRIQUEZ: Yes.

7

THE COURT: There, I finally got it right. If you'll

8 step up to the lectern and state your full name and then also

9 state, as I said, what -- where you live, not your home

10 address, but the municipality or county.

11

MS. LUZ MARIA HENRIQUEZ: Thank you, Your Honor.

12 Thank you for your time this morning. My name is Luz Maria

13 Henríquez. I'm a staff attorney at the Children's Legal

14 Alliance unit at Legal Services of Eastern Missouri, where I

15 handle educational law matters and I focus on school-to-prison

16 pipeline issues, which we know disproportionately affect

17 children of color. I live in St. Louis County, but I work in

18 St. Louis City and represent children in St. Louis City and

19 St. Louis County.

20

LSEM, Legal Services of Eastern -­

21

THE COURT: Could you slow down just a little bit?

22

MS. LUZ MARIA HENRIQUEZ: Oh, I'm sorry.

23

Legal Services of Eastern Missouri applauds the

24 efforts made in this Consent Decree to reduce students'

25 unnecessary involvement in the juvenile and criminal justice

4/19/2016 Motion Hearing

28 1 systems by identifying and specifying the role of SROs.

2 Recent research suggests that the presence of SROs can

3 negatively impact school climate, and in fact, in my

4 experience, when SROs are involved in routine discipline

5 matters, students become distrustful of the police as well as

6 the school staff.

7

The U.S. Department of Education recommends that

8 schools ensure that school-based law enforcement officers do

9 not become involved in routine school disciplinary matters,

10 and to that end and in the interests of fairness,

11 adequateness, and reasonableness, I ask the Court to consider

12 the following:

13

The Consent Decree would be more effective if

14 paragraph 209 concerning the training of SROs requires

15 participation in continuing training programs to ensure

16 techniques and strategies that are utilized by SROs remain

17 up-to-date and conducive to the particular school's

18 environment. Without a provision and requirement of ongoing

19 training for SROs, the elements of this agreement cannot be

20 fully implemented.

21

Moreover, the Consent Decree would be more effective

22 if paragraph 210 requires or includes the provision of

23 implicit bias training, racial justice training, and cultural

24 competency training for every school employee, including

25 school resource officers. By including such training, school

4/19/2016 Motion Hearing

29 1 resource officers and other school staff will be better

2 equipped to make decisions regarding student interactions that

3 are informed and less likely to cause harm.

4

The Consent Decree would also be more effective if

5 paragraphs 215 and 216 defined the terms necessary and

6 detailed the factors that may justify arresting a youth at

7 school. For example, listing specific situations in which an

8 arrest may be more appropriate and listing situations where

9 arrests would not be appropriate could help diminish confusion

10 and will create a standard approach to arrests rather than a

11 purely subjective approach that will likely lead to the

12 removal of students for nonviolent disciplinary matters.

13

Finally, the Consent Decree would be more effective

14 if it includes formal consequences for school resource

15 officers for actions that are directly adverse to the elements

16 of this agreement. Otherwise, school resource officers will

17 lack incentive to follow the terms of this agreement at all

18 times. Additionally, the inclusion of consequences for

19 actions that go against this agreement will protect school

20 resource officers from unwarranted or extreme punishment

21 measures since the consequences will be delineated in this

22 agreement, leaving little room for interpretation.

23

Thank you, Your Honor, for your time.

24

THE COURT: Thank you.

25

All right. Next up, Paul Berry III.

4/19/2016 Motion Hearing


30

1

MR. PAUL BERRY III: Good morning, Your Honor.

2

THE COURT: Good morning, Mr. Berry.

3

MR. PAUL BERRY III: I'd just like to really hop into

4 it. Your Honor. United States of America -­

5

THE COURT: And so can you tell me where you live,

6 Mr. Berry?

7

MR. PAUL BERRY III: Yes. Paul Berry III. A citizen

8 of Bridgeton, Missouri. Small business owner.

9

THE COURT: Okay. Thank you.

10

MR. PAUL BERRY III: United States of America versus

11 the City of Ferguson. Trillion dollar budget. Budget in the

12 millions.

13

The Consent Decree before you is nothing more than a

14 ransom letter. You either bow to Caesar, or in three or four

15 years, we'll eat 'em up at legal fees. Right now I'm paying

16 for eight attorneys to sit around and try to create a solution

17 to a problem that they're not even addressing. You have the

18 wrong defendants at the table.

19

The bottom line is this: Why are we here today? Why

20 did the DOJ have to get involved in this matter? Because you

21 have poor defendants that are sitting in jail without a

22 lawyer. So why is that? Because Missouri has a statute that

23 specifically prohibits the public defender system from

24 representing people in municipal courts. When you lock a guy

25 up -- you know, the courts have had this idea for a long time

4/19/2016 Motion Hearing

31 1
 that when you lock a guy up, it's based upon the severity of


2
 the crime whether he should have an attorney. No. It's when


3
 you take away his privileges. We have people in Guantanamo


4
 Bay that are being treated better than the people here.


5


Ferguson is not the enemy. Ferguson is a city that's


6
 been around since the 1900s. What's very interesting about


7
 this is they are probably one of the better jurisdictions in


8
 the area regarding these issues. But the DOJ, they don't


9
 really want to -- they don't want to fight the State of


10
 Missouri or St. Louis County. They want to fight Ferguson.


11
 And as expressed by Mr. Webb, he advised his clients, "Look,


12
 you take this on; three or four years, you might go bankrupt."


13
 So what are we going to do about that issue?


14


I wrote the DOJ a letter seven months before Michael


15
 Brown got shot. I run a bail bondsman company, and I laid


16
 this out in a technical letter. You know what they told me?


17
 "There's not a problem." They're trying to fast-track and


18
 bootstrap this thing. There was an investigation that was


19
 filed back in 2013, two months before I wrote my letter,


20
 regarding -­

21


THE COURT: Slow down a little. Okay.


22


MR. PAUL BERRY III: -- yeah -- two months before I


23
 wrote my letter regarding juveniles being represented by


24
 probation officers in court. Have we resolved that issue?


25 No. You know why they haven't resolved the issue? Because


4/19/2016 Motion Hearing

32 1
 they don't want to fight the State of Missouri. You have the


2
 wrong defendant at this table.


3


The courts are under the -- under the Supreme Court


4
 and the Circuit Court of St. Louis County. My good mayor has


5
 no ability to tell the courts what to do. It's been outlined


6
 in the Post-Dispatch of the myriad of municipal court judges


7
 that were playing several roles. Yet not one person has been


8
 investigated, not one person has been disciplined, and it's


9
 business as usual.


10


To pass this Consent Decree, to ignore those issues


11
 and make the City -- who pays for all this stuff that they're


12
 talking about? The minority population in the city of


13
 Ferguson, which is the majority. So the same people that are


14
 trying to get help here are the same people that are going to


15
 pay for what they're talking about.


16


Bottom line is this: You talk about fair,


17
 reasonable, and adequate. We're not nowhere near it.


18


Let's talk about correctional standards. Ferguson


19
 actually does the right thing with correctional standards.


20
 The Post-Dispatch said in the newspaper that -- quote,


21
 unquote -- "The City of Wellston had to let all their


22
 prisoners go because the guards got tired of buying bread and


23
 bologna out of their own paychecks." This is a publication


24
 that everybody listens to.


25

And the DOJ wants to pick on Ferguson. They have a


4/19/2016 Motion Hearing

33 1 ransom letter. They're saying, "If you don't do this, I'm

2 going to click the bomb." And not allowing them to -- and

3 unfortunately for us, the process is flawed. There's nothing

4 you can do about this. If you decided that I was right, then

5 it just goes back to where it was, and the weight of the

6 United States government is going to fall on my mayor and fall

7 on the City of Ferguson. It is wrong, and I understand that

8 there's not nothing you can do or I can do, but what I can do

9 is put this on the record.

10

Bottom line: Michael Brown got killed. It was a

11 horrible thing. The one thing that came out of that is we

12 actually looked at the complaints that professionals like

13 Thomas Harvey from the ArchCity Defenders and people like

14 myself that are community activists kept seeing in our

15 profession. We haven't dealt with bail. Why is it that if a

16 person can't afford a $200 bail they're denied the right to go

17 to a professional? Would I deny you the right to buy a home

18 if you couldn't do it without going through a bank? I'm

19 licensed to perform the services. You have corrupt judges

20 that want to try to create revenue, and the purpose of bail is

21 to reasonably secure the defendant's appearance.

22

So those are two issues, and if I had more time or if

23 you want to extend me, I can give you eight more. So it'd be

24 up to you, Your Honor.

25

THE COURT: I think your five minutes is enough, but

4/19/2016 Motion Hearing

34 1 thank you for your comments. You still have -­

2

MR. PAUL BERRY III: Okay. And with that being said,

3 I have nine seconds. I do support the passing of this decree

4 but with protest on behalf of the citizens of Ferguson.

5

Thank you.

6

THE COURT: Thank you.

7

Mark Timmerman.

8

MR. MARK TIMMERMAN: Good morning, Your Honor. My

9 name is Mark Timmerman, and I am a second-year law student at

10 St. Louis University School of Law. I was also a staff member

11 for the Ferguson Commission last year.

12

Thank you for holding this hearing and for collecting

13 written comments from the public.

14

THE COURT: And what municipality do you live in?

15

MR. MARK TIMMERMAN: I live in St. Louis City.

16

THE COURT: All right. Thank you.

17

MR. MARK TIMMERMAN: I commend the City of Ferguson

18 and the Department of Justice for this Consent Decree has the

19 potential to not only make Ferguson a better community for all

20 of its residents but also to set a standard of best practices

21 for local police departments, courts, and governments around

22 the country. However, there are aspects of the Consent Decree

23 that raise concerns that some of the goals of this entire

24 process might not be adequately realized.

25

THE COURT: Now I'm going to interrupt you and ask

4/19/2016 Motion Hearing

35 1 you to step a little bit back from the mike because it's a

2 little too loud. Sorry.

3

MR. MARK TIMMERMAN: These concerns are outlined as

4 follows:

5

First, pertaining to paragraphs 26 and 29 under

6 Section III, titled "Community Policing and Engagement," this

7 portion of the Consent Decree fails to make it clear that the

8 neighborhood policing plan does not allow for the application

9 of unjustified closer scrutiny to majority African-American

10 neighborhoods in the enforcement of traffic laws and other

11 minor offenses. Also, walking patrols and other methods of

12 policing that are called for in the Consent Decree are not

13 required to be employed equally in both majority

14 African-American and white neighborhoods in order to ensure

15 that these practices will not be used as a substitute for

16 heightened enforcement of minor infractions against

17 African-American communities.

18

Next, under Section IV, titled "Reform of the

19 Ferguson Municipal Code," paragraph 36 requires the City to

20 revise the Ferguson Municipal Code to ensure that it comports

21 with the United States Constitution and other laws. Your

22 Honor, the Consent Decree fails to include another ordinance

23 that should be revised, which is subsection (1) of Section

24 2916, the "failure to comply with order of police officer"

25 ordinance. Too many citizens have had their constitutional

4/19/2016 Motion Hearing

36 1 rights violated because of the enforcement of that vague

2 ordinance. The ordinance does not provide fair warning of

3 prohibited conduct to members of the public, and it allows for

4 the arbitrary and discriminatory enforcement of that ordinance

5 by police. The ordinance also lacks a mens rea requirement.

6

Furthermore, under Section VI, titled "Bias-free

7 Police and Court Practices," paragraph 64 demands equal

8 protection of the law for all individuals. Like so many other

9 municipalities in this region, the City of Ferguson has

10 historically demonstrated its inability to provide equal

11 protection of the law for all individuals because its police

12 and court have been used as tools to generate revenue.

13 Because the administration of justice in Ferguson is so

14 tainted by the City's desire to generate revenue in this way,

15 the Consent Decree should go further and should require that

16 police and court budgets be frozen and any monies accrued from

17 the enforcement of the law should be donated to local public

18 schools.

19

Additionally, under Section XVIII, titled "Municipal

20 Court Reform," paragraph 326 outlines an amnesty program.

21 However, in subsection (a), the Ferguson prosecutor is given

22 the discretion to continue to prosecute certain cases, like

23 "failure to comply" ordinance cases. In order to have a truly

24 impactful amnesty program, this paragraph should include -­

25 should be amended to remove the option of the Ferguson

4/19/2016 Motion Hearing

37 1 prosecutor to continue to prosecute those types of cases.

2

And lastly, paragraph 359, also under Section XVIII,

3 contains only one sentence dedicated to the topic of mental

4 illness in the courts. Because our criminal justice system

5 has historically been inadequate in the way it treats

6 defendants with mental illnesses, this one sentence in the

7 Consent Decree is not enough. Your Honor, this paragraph

8 should require far more from Ferguson. For example, Ferguson

9 could be required to provide everyone that comes before the

10 court with information about local mental health care options

11 and could provide education for the municipal court judge and

12 court officials on various types of mental illnesses as well

13 as the warning signs that people may exhibit in the courtroom.

14

Thank you, Your Honor.

15

THE COURT: Thank you.

16

All right. Emily Davis.

17

MS. EMILY DAVIS: Good morning. My name is Emily

18 Davis. I am a third-generation Ferguson resident, mother of

19 three, and a member of the Ferguson Collaborative and ONE

20 Ferguson.

21

Like many white people in my community, I knew racism

22 existed before August 9th of 2014.

23

THE COURT: Okay. I'm going to ask you again.

24 Everything everyone says is being taken down by the court

25 reporter, and so if you read -- it's real natural when people

4/19/2016 Motion Hearing

38 1 read they read really fast. So just slow down. You don't

2 have to go any slower than normal talking voice, but -- so go

3 ahead. Sorry.

4

MS. EMILY DAVIS: Like many white people in my

5 community, I knew that racism existed before August 9th of

6 2014, but as the hours and days of early August went on, I

7 began to understand things that I hadn't before. I watched in

8 horror as grieving mothers, fathers, families came together to

9 mourn and were met by armored vehicles, tear gas, riot gear,

10 snipers, and rubber bullets. As a mother myself, I could not

11 imagine not being able to hold my baby as he lay dying, as his

12 body laid in the street for more than four hours. But I also

13 came to realize that the community was not simply grieving the

14 death of one young man. They were mourning centuries of

15 murder and abuse, decades upon decades of injustice, and I

16 watched as people there witnessing these assaults, including

17 national media, Legal Observers, and Amnesty International

18 were also abused, beaten, and arrested for documenting this

19 travesty. I listened in stunned silence when our mayor told

20 the world that there was no racial divide in Ferguson.

21

And then I began listening more. Every person I met

22 on the street at protests had a story of police abuse,

23 brutality, had feared for their lives from those who are sworn

24 to protect and serve, those who do serve people who look like

25 me. And I realized that simply telling my children to treat


4/19/2016 Motion Hearing

39 1
 everyone equally wasn't enough. As a white woman, I had to


2
 act to combat a system that uses my name, my face, my safety,


3
 my virtue to oppress and subjugate black and brown people all


4
 around me right here on my doorstep.


5


I read the DOJ's investigative report into Ferguson


6
 and listened to the Civil Rights Division when they told us at


7
 a town hall that this was not the case of a few bad apples;


8
 the whole bunch was spoiled; our system of revenue generation


9
 was rancid; and white Ferguson's abuse of their governmental


10
 powers was rotten to the core.


11


Realizing that everyone wasn't listening or hearing


12
 these stories, some friends and I called on the help of


13
 Community Mediation Services of St. Louis and began hosting


14
 community dialogues on race justice in Ferguson. We did this


15
 for several months, then joined up with ONE Ferguson to


16
 continue those efforts. In both capacities, we tried over and


17
 over to reach out to the city government of Ferguson, to get


18
 those in power to -­

19


THE COURT: Okay. Hold on a second. Slow down.


20
 Take a breath.


21


MS. EMILY DAVIS: -- to get those in power to


22
 participate, engage, and be transparent with the community.


23
 We spent hours in planning meetings with them, only to have


24
 them cancel events at the last minute. We asked politely,


25 made arrangements, offered advice, pleaded, demanded our


4/19/2016 Motion Hearing

40 1
 representatives on City Council listen to, talk to, and reach


2
 out to their community, assuming they wanted to change and


3
 wanted to make our community stronger, more just, and


4
 equitable.


5


Over time, it became clear that this was not true.


6
 Consequently, a grass roots group of Ferguson residents and


7
 area stakeholders, called the Ferguson Collaborative, formed


8
 to lift up and empower the community's voice as part of the


9
 DOJ intervention and consent decree process. Unlike the City


10
 of Ferguson, the collaborative conducted a survey of Ferguson


11
 stakeholders to get a picture of what the people wanted from


12
 their police. We took the results back to the community and


13
 engaged in dialogue about what we found.


14


Overwhelmingly, stakeholders demanded major reforms


15
 in policing, and while we, the collaborative, believe this


16
 Consent Decree will compel the City to remedy many abuses, it


17
 may not ensure long-term, sustainable change after federal


18
 enforcement ends. Change will be lasting only if it embodies


19
 a fundamental shift of the power dynamics between the police


20
 and the community.


21


I'm currently on the Neighborhood Policing Steering


22
 Committee, which is given a wide range of responsibilities in


23
 this agreement. Among other things, the NPSC is to develop


24
 the plan for community policing in Ferguson. Unfortunately,


25 as in all else they do, the City of Ferguson has made it


4/19/2016 Motion Hearing

41 1 obvious they have no intentions of engaging the black and

2 working-class citizens who have been most abused by its past

3 policing practices in designing this new plan.

4

Although we were initially told the City would hold

5 meetings at different locations around Ferguson to gather a

6 more representative input, the City did not follow through.

7 All meetings of the steering committee thus far have been held

8 at one church, a historically white space on the northwest

9 side of Ferguson. No notifications have ever been sent out to

10 the community, nor have these meetings been advertised in any

11 way.

12

Like much that goes on in Ferguson city government,

13 the only way to access information is to know someone on the

14 inside. As a result, the attendance pattern and power

15 dynamics within the NPSC have so far favored those in the

16 community already empowered and those least impacted by the

17 status quo police practices.

18

The Consent Decree needs to require that the NPSC be

19 trained in problem-oriented policing, implicit bias, bias-free

20 policing, and antiracism principles. Its membership should be

21 clearly permitted to include non-Ferguson residents affected

22 by Ferguson policing. And the DOJ or the Monitor should

23 verify that the composition of the NPSC is representative of

24 the entire community.

25

THE COURT: All right. Your time is up. Thank you.


4/19/2016 Motion Hearing


42

1

Next, John Powell.

2

Hold on a second. We're working on the sound system.

3 Just a second.

4

All right. Sir, you may proceed.

5

MR. JOHN POWELL: My name is John Powell, and I've

6 been a Ferguson resident for almost 10 years. I appreciate

7 the chance to address the Court about the Consent Decree as a

8 member of the Ferguson Collaborative. I am also a member of

9 the Ferguson Human Rights Commission as well as ONE Ferguson,

10 a resident group committed to bringing our town together for

11 the sake of justice. I have also recently started to attend

12 meetings of the Neighborhood Policing Steering Committee,

13 which is one of the needed efforts to help ensure Ferguson's

14 policing policies and practices are constitutional as we go

15 forward.

16

One of the things that I've reflected on in the last

17 year and a half since the tragic shooting of Michael Brown is

18 that as a social justice teacher at Villa Duchesne and Oak

19 Hill School in Frontenac, I was ignorant of what was going on

20 in Ferguson in terms of injustice. I've come to the

21 conclusion that I was at least partially to blame for this

22 ignorance because of my white privilege.

23

My wife, Lisa, and I moved to Ferguson intentionally

24 in 2006 in part because of its racial diversity, but I was and

25 am able to enjoy that diversity on my own terms as a white

4/19/2016 Motion Hearing

43 1
 man. The events of August 9th, 2014, and its aftermath have


2
 reminded me that we not only have wealth and educational


3
 inequities in Ferguson but a stubborn and pervasive racism


4
 that is not only in us as individuals but in our social


5
 structures.


6


I think the most important problem that I've seen is


7
 with the City of Ferguson in terms of communication and


8
 transparency. When ONE Ferguson tried on several occasions to


9
 set up meetings with City officials or former Police Chief Tom


10
 Jackson, inevitably, they would be canceled for one reason or


11
 another. It took approximately 10 months to get the police to


12
 come to our community dialogues. Meetings for public input


13
 are often announced with little time, and there are still


14
 residents who are struggling to get email messages from the


15
 City for such meeting notices.


16


The City, for months, has been unable or unwilling


17
 until now to reach out to Ward 3 residents about the actions


18
 of the Neighborhood Policing Steering Committee and how they


19
 can get involved. At almost every meeting where it's


20
 surveyed, residents of Ward 1 and 2 of Ferguson are


21
 represented, but Ward 3 is not. This is very ironic and


22
 unjust since so many people in Ward 3 have experienced the


23
 unconstitutional policing practices as shown in the Department


24
 of Justice report. Even now, it's so complicated to get the


25 City officials to realize that they have to go to the people


4/19/2016 Motion Hearing

44 1 of Ward 3, those who feel disenfranchised and forgotten.

2

Many of Ferguson's white residents are stuck in the

3 past. Their solution to communicating with residents is to

4 put something in the Ferguson Times. Although that's one

5 venue, many people do not receive the Times or they get their

6 information from other sources.

7

The City has not made a formal apology to the

8 residents about the many years of police and municipal court

9 injustices in our town.

10

Much of the debate on the City Council goes on in

11 closed session in order to seemingly present a united front

12 under Mayor Knowles.

13

Although we have some very well-intentioned people

14 who are committed to helping create a new police culture in

15 Ferguson, the Ferguson Collaborative members believe the

16 decree should institutionalize the Neighborhood Policing

17 Steering Committee so that once the federal Monitor is

18 withdrawn community engagement will continue. We believe this

19 committee should be able to help pick the Monitor and be on a

20 team with the Monitor.

21

But before this all can happen, we ask the Court to

22 make sure that the Neighborhood Policing Steering Committee

23 actually looks like the community. Sixty-six percent of the

24 community is African-American, and the people often targeted

25 by previous police practices were young and male. We need the

4/19/2016 Motion Hearing

45 1 Court to verify a just composition for the NPSC.

2

Several people who were committed to fighting the DOJ

3 on its report are now involved in the NPSC, and we believe

4 that they are committed to lessening the effects of the

5 Consent Decree on the City of Ferguson and the police

6 department.

7

Finally, as a Ferguson Human Rights Commissioner, I

8 want to say that I believe that for the rights of all

9 Fergusonians to be protected in all areas, we need the

10 constant pressure of the federal government to help us and

11 other boards and commissions which are affected by the Consent

12 Decree to have real power and influence in the relations with

13 the City Council and the City Manager. The Human Rights

14 Commission is told there's little money for our activities,

15 but that's where the City should be spending its money now.

16

I believe that there is hope for a good Consent

17 Decree. I thank the Court for allowing me to speak today as

18 part of the fairness hearing, and I am here because I believe

19 black lives matter. Thank you.

20

THE COURT: Thank you.

21

Angelique Kidd.

22

MS. ANGELIQUE KIDD: Thank you, Your Honor. My name

23 is Angelique Ayaan Kidd. I'm a 12-year Ferguson resident.

24 I'm a homeowner and an active member of the Ferguson Review

25 Board Task Force.

4/19/2016 Motion Hearing


46

1

I have several concerns regarding the City of

2 Ferguson's ability to properly implement the areas of the

3 Consent Decree that establish citizen boards. I have seen

4 firsthand how the City of Ferguson operates when it comes to

5 advertising and selecting people to sit on boards. It's

6 unacceptable. The same people get rotated around. I've

7 mentioned this to the Ferguson mayor. He and many others that

8 work for the City claim that it's because people are just not

9 interested in volunteering for their community, and that's not

10 true. The City makes minimal to no effort to advertise any

11 information outside of its website and neighborhood

12 associations.

13

While I have huge concerns about how people are

14 chosen to sit on boards in Ferguson, my main concern is what

15 happens once it's established, specifically around the boards

16 that are mandated in the Consent Decree. Since November of

17 2014, I've been an active member of the Citizen Review Board

18 Task Force. Every single meeting was facilitated by Mayor

19 Knowles. Having the Mayor, who was a major player involved in

20 the unconstitutional policing unveiled in the Department of

21 Justice Ferguson report, is hardly fair or impartial.

22

Please, Your Honor, I'd like to give you two really

23 good examples of Mayor Knowles' behavior during these task

24 force meetings. Since November of 2014, I've asked several

25 different Ferguson City employees about how I would go about

4/19/2016 Motion Hearing

47 1 obtaining a copy of the current policies and procedures of the

2 Ferguson Police Department. I've been told various things,

3 but I'd like to tell you what Mayor Knowles told me. During a

4 Citizen Review Board Task Force meeting, where our entire goal

5 was to establish what the Review Board would look like in the

6 future, I told the Mayor that I thought it didn't make any

7 sense that we had spent all of this time trying to do this

8 work when we didn't even have access to what the police

9 department already had in place regarding the current

10 complaint process. Mayor Knowles told me that that

11 information is available per the Sunshine Law and that I could

12 get it that way. Ferguson City cannot be trusted to ensure

13 that the Civilian Review Board has the resources that it needs

14 to be effective.

15

Furthermore, I think the CRB should be strengthened

16 as spelled out in the Ferguson Collaborative's written

17 testimony.

18

Also, I can honestly say that Mayor Knowles allowed

19 the task force to waste hours of our unpaid personal time by

20 letting us argue about unnecessary things, and I'll explain

21 how. Until recently, the task force had no access to the

22 Consent Decree, but Mayor Knowles did. I can't tell you how

23 much time we wasted arguing about whether or not a third party

24 was able to file a complaint with the Ferguson Police

25 Department. That was a complete waste of our time, and Mayor

4/19/2016 Motion Hearing

48
 1
 Knowles knew it. He knew or at least had a good idea of what


2
 was going to be in the Consent Decree, and many things, such


3
 as a third party complaint, is already in the Consent Decree.


4
 So there was no need for us to waste our time arguing about


5
 what was going to have to be implemented anyway. The City of


6
 Ferguson cannot be trusted to ensure that unpaid volunteers'


7
 time is spent effectively.


8


I'd also like to give you an example of what happened


9
 with the Neighborhood Police Steering Committee. On


10
 February 9th, 2016, the City Council did not vote to approve


11
 the Consent Decree. The Department of Justice filed suit


12
 against the City in less than 24 hours. On February 18th of


13
 2016, during an NPSC meeting, Mr. Seewood, our City Manager,


14
 actually stood up during the meeting to let the committee know


15
 that now that the City had approved the Consent Decree we


16
 could move forward. So even after I and many others told him


17
 that, no, the City did not approve the Consent Decree, he


18
 continued to spread the lie that it had. The City of Ferguson


19
 cannot be entrusted to ensure that it is truthful to its


20
 citizen boards.


21


Your Honor, I do not believe that we can trust either


22
 our mayor or our city manager to effectively implement the


23
 parts of the Consent Decree that establish citizen boards. I


24
 implore you, please, to add to the Consent Decree that the


25 citizens, that we of Ferguson have complete access to the


4/19/2016 Motion Hearing

49 1 entire process of the hiring of the Monitor so that we can

2 have someone with a community-oriented perspective to

3 implement this decree. Thank you.

4

THE COURT: Thank you.

5

All right. Mr. Karl Tricamo.

6

MR. KARL TRICAMO: Thank you, Your Honor.

7

First off, while you made it clear that revisions

8 weren't going to be made on your behalf, I hope that several

9 testimonies here will at least resonate with the United States

10 of America and the City of Ferguson itself for moving forward

11 here and elsewhere where these occurrences are happening.

12

My name is Karl Tricamo. I've lived in Ferguson for

13 the last seven years as well as off and on again prior. I

14 grew up in the Ferguson-Florissant School District. I will

15 revise this to shorten it a little bit. I'm part of ONE

16 Ferguson, part of the NPSC, part of the Ferguson

17 Collaborative. I fully support our written testimony that was

18 given to the Court and everything within it.

19

There's no mistaking that injustice occurs in this

20 world, and I battle every day to point out the many

21 inconsistencies we face as a society. Humanity is always

22 prejudiced, fueled by parental indoctrination, personal

23 experience, and media portrayal. While I respect the Court's

24 ability to set aside its own biases, I have little faith in

25 the typical law enforcement officer to do the same. It is for

4/19/2016 Motion Hearing

50 1
 this reason that we have asked revision and strengthening to


2
 several key sections of the decree, one of which being that of


3
 body-worn and in-car cameras.


4


Anytime new technologies are implemented into


5
 existing models, obstacles will arise. Rather than just


6
 rolling the dice to see what comes of it, it would be


7
 beneficial to all parties involved if policies and procedures


8
 were fully laid out in the decree in regard to officer


9
 cameras.


10


The City has been given the task of writing their own


11
 policies in regard to such, and we in the collaborative feel


12
 that this will be problematic. The City has shown little to


13
 no ambition to provide transparency or commitment towards


14
 public safety in the past, and I feel it's naïve to think that


15
 this will change.


16


Some of the issues that are likely to arise include


17
 the officers' discretion and ability to turn off their cameras


18
 at will and the potential of abuse in these practices. We


19
 feel that a greater effort on redaction rather than that of


20
 officer discretion would best mitigate these concerns.


21


There also needs to be clear standards and procedures


22
 set for access to capturing footage, such as log-ins and


23
 accountability for access to such. Officers should also not


24
 be allowed to view this footage prior to filling out their


25 incident reports to preserve the officers' perceptions of


1 public occurrences.

4/19/2016 Motion Hearing
 51

2

Currently, only Ferguson police vehicles -- I'm

3 sorry. Only certain Ferguson police vehicles are equipped

4 with in-car cameras. In the ones that do have cameras, they

5 are only activated when their emergency lights are turned on.

6 For several years, I have documented and watched countless

7 occurrences of officers speeding through town, running stop

8 signs and stoplights, through school zones even, without their

9 emergency flashers on. I have shared these concerns with City

10 Council as well as with the interim police chief and patrol

11 officers themselves, but the problem still continues. I

12 currently live at an intersection of an elementary school, and

13 more than half the officers that drive by do not stop at the

14 stop sign there.

15

I ask the Court to please revise paragraph 231 to

16 require in-car cameras to be on at all times when the vehicles

17 are in motion. At the very least, they should be activated

18 when vehicles engage at a speed of more than 35 miles per

19 hour, the maximum speed limit within Ferguson.

20

Specific policy must be implemented to ensure the

21 security and proper retention of captured footage. There

22 needs to be clear, mandatory practices in place that set time

23 limits on data storage. As it stands, the City is required to

24 save footage for a specific amount of time, but there is no

25 requirement to destroy such footage. It must be ensured that

4/19/2016 Motion Hearing

52 1 such footage will not be sold or given to another party or

2 agency in the future outside of the original neutral party

3 tasked with the organization and holding of the audio and

4 video recordings.

5

Under paragraph 249 of the decree, recordings are to

6 be made publicly available in accordance with the Missouri

7 Sunshine Law. However, the wording used allows the City to

8 interpret the Sunshine Law how they see fit, and in the past

9 as well as currently, they often deny requests that most would

10 feel fit within the parameters of the law. We feel that

11 public access to police-encounter footage should be laid out

12 more clearly.

13

Thank you for your time given to this momentous task

14 at hand. We in the Ferguson Collaborative have been fighting

15 for this Consent Decree for more than a year. It's been a

16 long road up to this point, and I'm hopeful that Ferguson's

17 future will now take a turn for the better. Thank you for

18 allowing us to share the voices of those most marginalized by

19 the City of Ferguson.

20

THE COURT: All right. Next John Chasnoff.

21

MR. JOHN CHASNOFF: Thank you, Your Honor. My name

22 is John Chasnoff. I'm a resident of University City, a

23 long-time activist on police issues, and a member of the

24 Ferguson Collaborative.

25

I wanted to delve a little deeper into the question

4/19/2016 Motion Hearing

53 1 of body cameras today. I think that's one of the areas of the

2 Consent Decree that is the weakest. I think that might be due

3 to the fact that this is a new policy area for the DOJ to

4 explore, and I think that the provisions as they're written

5 now are inadequate to preserve the civil liberties of the

6 community.

7

So, first of all, I'd like to start with the issue of

8 discretion for when cameras can be turned on or off. The

9 Consent Decree says that the discretion is left to the officer

10 when it regards victims or witnesses. We think that that

11 provides -- creates a situation where there can be unequal

12 protection under the law or unequal application of the law as

13 different officers apply that discretion differently. So we'd

14 like to see the discretion left with the victims and witnesses

15 themselves to request that the cameras be turned off.

16

Secondly, there are no exceptions for undercover

17 officers in the Consent Decree and a provision that says that

18 all employees of the City police department who engage with

19 the public must wear the cameras. So that would mean the

20 receptionist would be wearing a camera. We think that's

21 unreasonable.

22

Also, discipline is mentioned for officers who don't

23 turn the cameras on appropriately, but that discipline is

24 unspecified. So we would have -- allow for a first offense

25 for while officers are learning about the cameras, with

4/19/2016 Motion Hearing

54 1
 appropriate discipline, but then we would require mandatory


2
 suspension for second violations, and if there's a pattern of


3
 violations of not turning on cameras, we would request that


4
 there be mandatory termination.


5


It's also very important for civil liberties how this


6
 information is retained. So there's nothing in the decree


7
 that spells out -- you know, there's a mention of a remote


8
 server to store the information but not who controls that


9
 remote server. We think that the evidence should be kept in


10
 the hands of a non-law-enforcement government agency. We say


11
 that so a government agency is susceptible to First Amendment


12
 restrictions. We think that's important. But we want to


13
 create a fire wall so that officers are not viewing the


14
 footage inappropriately and that there's some system for


15
 making sure that that happens. So the Consent Decree also


16
 doesn't spell out any specific log-in system that would


17
 require officers to say who they are, why they're viewing the


18
 footage, and specifically what footage it is that they need to


19
 see. We think that that has to be built in so that there's an


20
 audit trail possibly to make sure that violations aren't


21
 happening.


22


There's also no -- no access standards mentioned in


23
 the Consent Decree such as, you know, do you need reasonable


24
 suspicion to view the footage? Are you there to audit the


25 footage? Are you there for an investigation? Possibly for


4/19/2016 Motion Hearing

55 1 research or supervision? None of that is -- no access

2 standards are mentioned, and so it would be a free-for-all who

3 obtains access to the footage.

4

Finally, on the issue of the Sunshine Law, the -- the

5 decree makes the reference to maximum -- the footage should be

6 available to the maximum allowed under Sunshine Law, but the

7 Sunshine Law is open to interpretation. We think the footage

8 needs to be specified as incident reports rather than

9 investigative reports. That fits the Missouri statute

10 definitions much better, and it also allows for then

11 appropriate redactions to take place to protect privacy

12 concerns.

13

And then on the issue of viewing the footage before

14 you write your report as an officer, there's nothing mentioned

15 in the Consent Decree about that issue. We think it's crucial

16 that officers do not review the footage before they write

17 their incident reports and have their initial investigations.

18 The reasons for this is that the camera provides a different

19 perspective from the perspective of the officer, who has a

20 much larger field of vision, among other things, and we think

21 the two streams kept separate provide a better opportunity for

22 establishing the truth. And finally, you need to preserve

23 officers' perspectives under the law so that the use of force

24 doctrine is applied correctly. That's often the "reasonable

25 officer" standard, and if you don't have the officer

1 perspective, you lose that.

4/19/2016 Motion Hearing
 56

2

So I want to just say in conclusion that I'm

3 disheartened to hear that you don't have the opportunity to

4 improve this Consent Decree. The Ferguson Collaborative has

5 worked for many years to -- or for a year now to make sure

6 that this goes into effect, but we do think it's inadequate to

7 have a situation where clients are represented on one side of

8 the courtroom and no clients on the other. The people have

9 not had the adequate input that they need, and we hope that

10 you will find a process to send this back for further

11 negotiation to make sure that the citizen input is part of an

12 adequate decree.

13

THE COURT: All right. Thank you.

14

MR. JOHN CHASNOFF: Thank you very much.

15

THE COURT: All right. We are going to take a

16 15-minute recess at this time, and since there are a number of

17 people here, I will tell you that if you need to use the

18 restroom facilities, there are some on this floor, but also

19 you can go back down to the first floor, and there are more

20 there.

21

So court will be in recess for 15 minutes.

22

(Court recessed from 10:46 a.m. until 11:02 a.m.)

23

THE COURT: All right. We're ready to resume, and I

24 believe we're up to Christina Assefa, and I may be

25 mispronouncing your name as well. If you'll step up, ma'am.

4/19/2016 Motion Hearing


57

1

MS. CHRISTINE ASSEFA: It's Christine Assefa. I am a

2 resident of St. Louis City, a black youth, born, raised, and

3 educated in Missouri, and I'm also an organizer with the

4 Organization for Black Struggle, and for the past year, I have

5 had the privilege of working with the Ferguson Collaborative.

6

The collaborative came out of a need and desire for

7 black people and working class people in Ferguson to

8 articulate, imagine, and begin to construct the type of

9 policing that truly serves the interests of the people and

10 protects the people, particularly, those on the margins of

11 society. The collaborative has done many successful things,

12 as those who have spoken before me have highlighted, and I

13 would be remiss not to acknowledge the beauty and power of

14 this collective of people who have grown to love, trust, and

15 protect one another in an effort to transform their community

16 for the better.

17

The Ferguson Collaborative has filled a gap that

18 reveals a shortcoming of the top-down approach implemented by

19 the DOJ and the City of Ferguson that has further disempowered

20 people most likely to experience police abuse. There needs to

21 be a shift from hierarchical modes of operating to more

22 lateral decision-making processes and approaches that don't

23 neglect the needs of communities most impacted by predatory

24 policing -- black people, LGBTQ people, poor people, young

25 people, undocumented people, and more.

4/19/2016 Motion Hearing


58

1


The DOJ's approach must change as they move forward


2
 with their investigations of police departments in cities


3
 across the U.S. that have revealed the corrupt nature and


4
 culture of policing nationwide. The views of implementation


5
 and oversight at the local level are critical to the success


6
 of the policy recommendations found in the Consent Decree.


7


In Ferguson, what we're dealing with is the


8
 historical exclusion of black and working-class people from


9
 local government. The decree opens with a section on


10
 community engagement, emphasizing meetings in disempowered


11
 neighborhoods with youth and strengthening nonfunctioning


12
 neighborhood associations. We support community engagement as


13
 a way to build relationships and establish trust so long as it


14
 is more than a PR stunt and an attempt to use the community as


15
 the eyes and ears of police. We need empowered community


16
 engagement, not superficial engagement of -- of public


17
 opinion.


18


A few additions to the Consent Decree that would help


19
 institutionalize meaningful community engagement and better


20
 ensure that the City and the Ferguson Police Department are


21
 more accountable to oppressed communities are the following:


22


The community needs to know that the Monitor takes


23
 their issues and concerns seriously. The parties should


24
 release the names of all proposed monitors and allow citizens


25 the opportunity to conduct their own research, participate in


4/19/2016 Motion Hearing

59 1
 hiring interviews, and provide feedback and recommendations.


2
 Unlike the recent police chief hiring process, where citizens


3
 were only allowed to ask questions prepared by the City,


4
 citizens must be given real autonomy and a chance to influence


5
 outcomes.


6


Two, the community needs to trust the Force Review


7
 Board and have faith in the complaint review process.


8


Three, the Consent Decree helps Ferguson move towards


9
 community- and problem-solving-oriented policing; however,


10
 some additional changes are needed. We need to tie


11
 restorative justice alternatives to incarceration into the


12
 community-oriented policing model. We need to prevent bad


13
 cops from joining the force by requiring that applicants sign


14
 a waiver so that their previous law enforcement personnel


15
 files are available to the hiring agency.


16


We cannot afford enforcement mechanisms that are


17
 weak. Ferguson serves as an example to the rest of the nation


18
 for the potential for police reform, not to transform our


19
 communities or serve us the justice that we deserve, but to


20
 change the immediate repressive conditions of marginalized


21
 people.


22


The law is only one facet of solving the problem of


23
 racist policing. With respect to education, there's a


24
 profound need to train police, judges, lawyers, teachers,


25 administration, and community members what the functioning of


4/19/2016 Motion Hearing

60 1 racism both institutionally and interpersonally means. In

2 order for the Consent Decree to be fully realized, there is a

3 cultural shift that is needed, and this cultural shift can

4 only happen if the leadership of the oppressed in our

5 community is centered and uplifted.

6

Community engagement does not look like a group of

7 self-selecting, white, upwardly mobile residents leading the

8 effort to hyper-police their neighbors or lead so-called

9 neighborhood policing steering committees. Community

10 engagement in the context of police transformation here

11 requires that those most impacted by racist policing are

12 leading the effort to determine the governance of their

13 community.

14

Your Honor, I urge you to challenge both of the

15 parties seated to my left and my right to engage more

16 critically with the issue at hand and to listen to the cries

17 of thousands of people who have demanded and taken to the

18 streets demanding change.

19

THE COURT: Thank you.

20

All right. Daryl Meese.

21

MR. DARYL MEESE: Your Honor, my name's Daryl Meese,

22 and I'm a resident of Florissant and a pastor in Ferguson.

23

Every citizen deserves constitutional policing and

24 governments that serve within their created limits to protect

25 the rights of the citizens. This is a mandate for local

4/19/2016 Motion Hearing

61 1 government and federal government as well. And, Your Honor, I

2 ask that you ensure the people are not mistreated in the

3 process of correcting the systemic wrongs that plague our

4 cities and our nation.

5

The transparency and fairness that the Department of

6 Justice desires in the Consent Decree is a good and right

7 thing. It is also a reasonable expectation for the citizens

8 to have for how the Consent Decree is created, negotiated, and

9 overseen. In regards to transparency, paragraph 14 of the

10 Consent Decree places the release of much information under

11 the control of the Court. I've found no comparable paragraph

12 in the DOJ agreements with Cincinnati, East Haven, or

13 Cleveland or any of the others that I have examined. It is

14 troubling to see a continued and deliberate lack of

15 transparency in an agreement that seeks in large part to

16 create transparency. What could possibly be gained by such

17 secrecy? Why is the entire process not open to the scrutiny

18 of the very citizens it should be serving?

19

There's an additional paragraph, number 452, which

20 furthers hampers transparency. It reads, "The Monitor is not

21 a state or local agency or an agent thereof, and accordingly,

22 the records maintained by the Monitor will not be designated

23 as public records subject to public inspection."

24

While there is a similarly limiting clause in

25 Cleveland's agreement, it is still reasonable to question

4/19/2016 Motion Hearing

62 1 whose interests are being protected by these terms. It is

2 equally reasonable to ask if merely abdicating government

3 responsibilities to a third party negates the Sunshine Law.

4 The citizens each party should be serving seem to benefit very

5 little from this lack of transparency. And, therefore, I ask

6 the Court to treat information pertaining to this agreement

7 with an extremely open hand.

8

I also ask the Court to be open to significant

9 changes to the deadlines presented in the Consent Decree. A

10 comparison of the deadline-driven deliverables in the DOJ

11 agreements with Ferguson, East Haven, Cleveland, and

12 Cincinnati shows that Ferguson's has by far the greatest

13 number of deadlines, no less than 50 percent more than the

14 next closest agreement and between 200 and 600 percent more

15 deadlines than the other agreements. Not only does Ferguson

16 have more deadline-driven deliverables, it has a far greater

17 percentage of those deliverables due within the first 180

18 days. Fifty of Ferguson's 64 total deadlines are due within

19 180 days of the effective date.

20

This disparity is most clearly seen when the

21 percentage of deliverables due within 180 days is compared

22 with the Cleveland agreement. While Ferguson has the greatest

23 percentage of deadline-driven deliverables due within 180

24 days, Cleveland has the fewest. Interestingly, Cleveland's

25 agreement went into effect this past year, in 2015, under the

4/19/2016 Motion Hearing

63 1 supervision of the same DOJ representatives overseeing

2 Ferguson, Ms. Vanita Gupta. Cleveland has a mere 34 percent

3 of deadline-driven deliverables due within the first 180 days.

4 That is less than half the percentage that Ferguson is

5 agreeing to deliver within the same time period. In fact, at

6 78 percent, Ferguson has the highest percentage of deadlines

7 due within 180 days of all the agreements I considered.

8

Curiously, other agreements have comparable

9 deliverables that either have significantly longer timelines

10 for delivery or lack a deadline completely. These severely

11 compacted deadlines create a significant but completely

12 avoidable project risk and unnecessarily stack costs together

13 in a manner that threatens and does not further the interests

14 of the citizens the agreement should be designed to serve.

15

Therefore, I ask the Court to either extend the

16 deadlines presented in the agreement or, at the least, to take

17 an extremely forgiving posture toward the meeting of those

18 deadlines.

19

And having a new understanding of the role of this

20 meeting, I, if it pleases the Court, would offer the consent

21 decree comparison that I was referencing. I compared

22 Cleveland, Cincinnati, and East Haven to Ferguson.

23

THE COURT: I'll ask the lawyers to address it, and I

24 understand your comparison that you've stated. So rather than

25 receiving further documents at this time, I'll just -­

4/19/2016 Motion Hearing


64

1

MR. DARYL MEESE: Great. Thank you very much, ma'am.

2

THE COURT: -- take your statements. Thank you.

3

All right. The next person on the list then is

4 Carlton Mayers II.

5

MR. CARLTON MAYERS II: Good morning, Judge Perry.

6 My name is Carlton Mayers II, and I am a policy counsel at

7 NAACP Legal Defense Fund, Legal Defense and Educational Fund,

8 Incorporated, in Washington, DC. The Legal Defense Fund would

9 like to thank you for inviting the public to provide written

10 and oral testimony about the proposed Consent Decree in the

11 case of United States versus the City of Ferguson.

12

For the past year, we have supported the efforts of

13 activists and lawyers in St. Louis County, including Ferguson

14 Collaborative, to develop strategies for addressing racially

15 biased policing and municipal court practices that the U.S.

16 Department of Justice has uncovered. As we stated in our

17 submitted written testimony to the Court, the proposed Consent

18 Decree contains many promising provisions that, if followed,

19 could promote constitutional and responsible policing and

20 court practices in Ferguson. But to ensure that Ferguson's

21 criminal justice system is administered fairly and without

22 regard to race, we propose changes to the Consent Decree

23 provisions relating to the race -- the use of race during

24 police stops, the municipal court amnesty program, protests

25 and demonstrations, school resource officers, the body-worn

4/19/2016 Motion Hearing

65 1
 camera program, and monitoring of the Consent Decree. This


2
 morning, I will underscore only three of these proposed


3
 changes of these proposed provisions.


4


First, paragraph 76(b) of the Consent Decree provides


5
 that Ferguson police officers will not use race, color,


6
 ethnicity, national origin, or other protected characteristics


7
 as a reason to investigate, search, or restrain a person


8
 except as part of an actual and credible description of a


9
 specific suspect in an ongoing criminal investigation. This


10
 exception runs the risk of encouraging racial profiling


11
 because a description of a black man in his twenties may


12
 result in stopping all black males in their twenties. The


13
 exception could be revised to state that race may be


14
 considered only when the stop is based upon a specific and


15
 reliable suspect description that includes not just race, age,


16
 and gender, but other identifying characteristics and


17
 information, such as height and hair color.


18


Second, paragraph 210 of the Consent Decree states


19
 that the Ferguson Police Department must develop a school


20
 resource officer program in consultation with the


21
 Ferguson-Florissant School District. Prior to the development


22
 of this program, the Ferguson Police Department and the


23
 Ferguson-Florissant School District should conduct an


24
 assessment to determine whether such a program is even needed.


25 The Justice Department's complaint in this case alleges that


4/19/2016 Motion Hearing

66 1 Ferguson school resource officers often treat routine

2 discipline issues as criminal matters and use force when

3 communication and deescalation techniques would likely resolve

4 the conflict. Research shows that police presence in schools

5 negatively impacts school climate, fueling distrust and

6 anxiety among students, despite doing little to improve school

7 safety. Before investing in police in schools, the school

8 district must weigh the costs, including the trauma felt by

9 students who are mistreated by police, and benefits of a

10 school resource officer program.

11

Third, paragraph 462 of the Consent Decree states

12 that the agreement will terminate when the City has been in

13 full and effective compliance for two consecutive years. A

14 previous version of the Consent Decree stated that it would

15 terminate after three years. We believe termination should be

16 considered after five years of full and effective compliance,

17 five consecutive years of full and effective compliance.

18

The Justice Department's complaint alleges that the

19 City's law enforcement and court practices have violated the

20 legal rights of Ferguson's African-American residents for

21 decades. In February of this year, Ferguson officials showed

22 signs of their unwillingness to eradicate a long list of legal

23 violations by making unilateral changes to the proposed

24 Consent Decree. It wasn't until the Justice Department sued

25 the City that it relented and agreed to the terms of the

4/19/2016 Motion Hearing

67 1 proposed Consent Decree that is before this Court.

2

To ensure that improvements made to Ferguson's

3 policing and municipal court practices are institutionalized,

4 it is important that City officials demonstrate their

5 commitment to these changes over a long period of time. For

6 example, the Justice Department entered into a consent decree

7 with the Commonwealth of Puerto Rico which terminates after 10

8 years, presumably due to unlawful and egregious policing

9 practices. Termination of the Consent Decree in no less than

10 five consecutive years after the City has fully and

11 effectively complied with the terms of the agreement offers

12 reasonable time for City officials to demonstrate their

13 commitment to reform.

14

In conclusion, the proposed Consent Decree is a

15 promising and welcome step towards restoring the civil rights

16 of Ferguson's African-American community and the integrity of

17 Ferguson's criminal justice and municipal court systems.

18 However, the Legal Defense Fund respectfully requests that the

19 Court consider the comments set forth in our oral and written

20 testimonies and make modifications to the Consent Decree

21 accordingly. Thank you.

22

THE COURT: All right. Thank you.

23

Rick Brenton.

24

MR. RICK BRENTON: Good morning, Your Honor. I'm

25 Pastor Rick Brenton. I have served and lived in Ferguson

1 since August of 2010.

4/19/2016 Motion Hearing
 68

2

First of all, please let me say thank you for

3 providing this venue for residents and stakeholders to express

4 their support and their concerns about the Consent Decree. We

5 all know the events that led us to this point -- the tragic

6 death of Michael Brown and the ensuing investigation by our

7 Department of Justice which uncovered racial bias and

8 unconstitutional police practices. However, as we assemble

9 today, I believe we all do so in hope, hope for a better

10 tomorrow.

11

But not all of us agree as to what that means. Some

12 hope to return Ferguson to what it used to be while others

13 suggest that maybe change is good but fear the financial ruin.

14 Yet others of us yearn for justice for all.

15

As we reflect on hope, I'm reminded of a unique piece

16 of literature by C.S. Lewis. In The Screwtape Letters, the

17 author presents a unique perspective on hope. Writing as

18 Screwtape, the under lieutenant to Satan, Lewis invites the

19 reader into a correspondence between him and his nephew

20 Wormwood, an apprentice demon. Through a series of letters,

21 Screwtape instructs his novice how to possess the soul of his

22 patient. He posits, "Keep pressing him on the ordinariness of

23 things. Give him a grand general idea that he knows it all

24 and that everything he happens to have picked up in casual

25 talk and reading are the results of modern investigation."

4/19/2016 Motion Hearing


69

1

To expound, the apprentice demon should keep the

2 patient from looking at universal issues. He should keep the

3 focus on immediate sensory experiences and away from hope.

4

In many ways, this describes the people of Ferguson.

5 Caught up in the morass that is St. Louis County where

6 political graft, corruption, and malfeasance are everyday

7 norms, where environmental issues are ignored and schools lose

8 accreditation, citizens have become numb, unphased even by a

9 botched election two weeks ago.

10

Much like New Orleans and Hurricane Katrina, the

11 death of Michael Brown did not cause systemic racism. It

12 simply exposed a climate which produced it.

13

So today we come to you to build on this glimmer of

14 hope provided by the Department of Justice and fan the flames

15 of justice. We believe this can happen when the focus remains

16 on universal issues or what is truly important. We address

17 the foundation of our democracy. Our Founding Fathers never

18 envisioned democracy as being static. They anticipated a

19 society which would transform over time. So they laid a

20 foundation on principles.

21

"We hold these truths to be self-evident, that all

22 people are created equal, that they are endowed by their

23 creator with certain unalienable rights, that among these are

24 life, liberty, and the pursuit of happiness."

25

So aligned with our Founding Fathers, we, the people

4/19/2016 Motion Hearing

70 1
 of the Ferguson Collaborative, endorse the Consent Decree and


2
 ask for further safeguards to protect the marginalized,


3
 disenfranchised, and the oppressed.


4


First, we believe the Neighborhood Policing Steering


5
 Committee should be involved in the hiring of the Monitor as


6
 well as having a presence on the Monitor team. We also


7
 believe the Civilian Review Board should be involved in all


8
 assessments, all the assessments the City does regarding the


9
 Consent Decree implementation. Further, civil liberty


10
 protections concerning body camera recommendations also need


11
 to be solidified. And lastly, we want to stress the


12
 importance of deescalation and the value of human life in all


13
 use of force policies.


14


Like our Founding Fathers, we recognize democracy is


15
 not static. It is always evolving, growing stronger than


16
 before. That is because the true strength of governance is


17
 found in its diversity, its people. To that end, we do


18
 support the view of the Department of Justice that Ferguson


19
 can be a model of community, of an emerging community justice.


20
 By empowering the people, justice and hope can return to


21
 Ferguson.


22


Thank you very much, Your Honor. May God bless you


23
 in your deliberation.


24


THE COURT: Thank you.


25

Joe Lynett. And, again, I'm not sure I pronounced


4/19/2016 Motion Hearing

71 1 your name correctly. So please correct me when you get up

2 here, sir, if I've got it wrong.

3

MR. JOE LYNETT: Absolutely. Thank you, Your Honor.

4 The name is Joe Lynett. I am from St. Charles, Missouri.

5

The only thing that I would request in this

6 hearing -- and I realize that this hearing is on fairness.

7 The only thing that I would request from the Court is

8 fairness, and what I mean by "fairness" is for the residents

9 of Ferguson to be able to attend public meetings and forums

10 without fear of being intimidated and threatened. I've spoken

11 with so many residents who are afraid to go to meetings and

12 speak up because they've been intimidated, because they've

13 been threatened, because they have been physically assaulted

14 and even had their homes vandalized. I've personally

15 witnessed this take place on numerous occasions.

16

Last week, I sat with a handful of African-American

17 residents, and they told me they have never been picked on or

18 victimized by the Ferguson police. Yet the DOJ report makes

19 this sound like it's rampant. One of the young

20 African-American males told me that he received a speeding

21 ticket in Ferguson. He felt that he deserved the ticket

22 because he was speeding. He also told me that the officer was

23 very nice and respectful.

24

I also sat last week with a group of Ferguson police

25 officers, and they told me, since the DOJ report, they

4/19/2016 Motion Hearing

72 1 consistently have people tell them, "You can't arrest me. You

2 can't stop me. There isn't anything you can do." The DOJ has

3 empowered the criminal element in Ferguson. How is that fair?

4

So I ask that the Court set up a provision for

5 mediators at public meetings; when people become loud, rude,

6 and intimidating, that they are removed from the meetings. If

7 it happens again, that they're banned from future meetings.

8

In summary, I would like to leave you with a quote

9 from Dr. Martin Luther King. "Darkness can -- cannot drive

10 out darkness. Only light can do that. Hate cannot drive out

11 hate. Only love can do that. Hate multiplies hate. Violence

12 multiplies violence. Toughness multiplies toughness in a

13 descending spiral of destruction."

14

I beg of you; please put a stop to all of the hate,

15 fear, intimidation that these people have been spreading and

16 inflicting on the residents of Ferguson and allow the

17 community to move forward and begin to heal by signing and

18 agreeing to the Consent Decree.

19

Thank you.

20

THE COURT: Thank you.

21

Dora Ashby or Dara Ashby. I'm not sure.

22

MS. DARA ASHBY: My name is Dara Ashby, and I've been

23 a resident of Ferguson for 16 years.

24

Ferguson is ready to move forward and begin the many

25 implementations set forth by the Department of Justice. In

4/19/2016 Motion Hearing

73 1
 order to succeed, it's going to take us all working together


2
 to make this happen. I respectfully ask the Court to help our


3
 community succeed by not permitting the anger and disrespect


4
 of some protesters, many not even residents of our city, that


5
 halt progress by use of intimidation and disruptions at city


6
 meetings.


7


I am speaking on behalf of many Ferguson residents


8
 that are afraid to speak up themselves. There are


9
 residents -- young, old, black, white, brown -- that want to


10
 help in the process of making Ferguson the shining example of


11
 what a diverse city should look like. Sadly, far too many of


12
 these residents have given up the fight and are no longer


13
 attending meetings, such as the Neighborhood Policing Steering


14
 Commission, because of the constant targeting, intimidation,


15
 and name calling of those that try to speak up. Many


16
 African-American residents have even been called names that I


17
 can't repeat and called traitors because they are of color and


18
 love our city and want to help.


19


These actions by certain individuals have been


20
 allowed, and this is unconstitutional and must stop. Our


21
 residents have, in many ways, been hijacked by this small


22
 group of those that seem to simply spew anger no matter what.


23


I ask that we are provided with DOJ mediators at all


24
 meetings that pertain to the implementation of the decree.


25 This is the only way to assure that everyone has a voice and


4/19/2016 Motion Hearing

74 1 respect is given to all. This is the only way we as a

2 community will move forward.

3

Thank you for your consideration.

4

THE COURT: Thank you.

5

Before the next speaker, I do want to comment on

6 something. I've been impressed today with how you all have

7 followed the rules of court, and everyone's demeanor has been

8 entirely appropriate until the last couple of speakers when

9 there's been a lot of whispering and note taking by people who

10 have already had their opportunity to speak. If you all need

11 to talk to one another, you can leave the courtroom and do it,

12 but in the meantime, I'd like to have this without comment

13 from the audience. Thank you.

14

Mae Quinn.

15

MS. MAE QUINN: Good morning, Your Honor. And thank

16 you very much for the opportunity to allow us to speak to you

17 today and address the Consent Decree. I'm a law professor at

18 Washington University School of Law, where I teach criminal

19 law, criminal procedure and run and direct our Juvenile Law

20 and Justice Clinic. I previously lived in St. Louis County.

21 I now live in St. Louis City, and I've been a resident in the

22 St. Louis area for the last seven years.

23

I came today to express my gratitude to the

24 Department of Justice for its important work and to generally

25 support the decree that is before you. But as has been said

4/19/2016 Motion Hearing

75 1
 already by the Department of Justice, this document and this


2
 agreement can be seen only as a first step in what I think is


3
 a longer process moving towards real change and real reform in


4
 St. Louis, and many of us hope and believe that the Ferguson


5
 agreement will now force Ferguson and the other municipalities


6
 to act more responsibly, but, again, I want to be sure that


7
 Ferguson officials and other municipalities know that the


8
 agreement won't fix everything and that real reform might


9
 include a more rational system that doesn't have 90 different


10
 systems operating independently and that involves juvenile


11
 justice reform as well. And even within the decree as


12
 proposed, there are certain remaining problematic features


13
 that I wanted to point out.


14


First is the question of civil arrests, and while the


15
 decree puts some limits on police arrest practices for


16
 ordinance violations out of Ferguson, I want to suggest to the


17
 City of Ferguson and the other municipalities that arrest for


18
 civil violation of any law should be seen as unconstitutional


19
 in the United States. Noncriminal violations of law should be


20
 met with citation always. And if an FBI agent or an AUSA came


21
 to Your Honor, seeking a warrant to arrest based on a breach


22
 of a contract or a tort, even if there was probable cause to


23
 believe that was the case, arrest would not lie, and


24
 therefore, I would suggest that arrests should not be


25 occurring for any local ordinance violation in St. Louis


4/19/2016 Motion Hearing

76 1
 County, and that fundamental issue, if addressed, could take


2
 on many of the related problems that remain. For instance,


3
 bail practices, jail practices, jail condition issues.


4


Second, the decree, I fear, doesn't address, as much


5
 as I might like, the issue of youth justice and youth within


6
 our municipal courts. While we surely have a juvenile justice


7
 system in Missouri and St. Louis County, what many people


8
 don't realize is that there are children in the municipal


9
 court system, minors in our municipalities who are being


10
 prosecuted, directly filed against, and dealt with as if


11
 adults in those systems. I have concerns for the problem of


12
 minors in munis, cash being taken from kids in these systems,


13
 and pro se adolescent advocacy in these courts which continues


14
 even under the decree. It appears there's still not


15
 representation being provided for kids in these courts, and I


16
 fear failure to do -- that failure to address this issue will


17
 be problematic going forward.


18


Third, the issue of policing and policing in schools.


19
 And I join here with my colleagues at legal services, Luz


20
 Henríquez, who Your Honor heard from earlier, with LDF, in


21
 asking really for SRO practices to be looked at more carefully


22
 and actually SRO numbers reduced. We don't want more police


23
 in our schools. We want fewer. And while quite expressly the


24
 Consent Decree addresses police being deployed into the


25 schools to effectuate arrest warrants for municipal ordinance


4/19/2016 Motion Hearing

77 1
 violations, it does not address a related practice, and that


2
 is the Ferguson police being deployed into the schools to


3
 effectuate arrest warrants out of the juvenile court. And


4
 just last month, I had a young man arrested in front of his


5
 peers by the Ferguson police in a high school for an incident


6
 that really should have been dealt with with notice and


7
 summons to court. It's a widespread practice that continues


8
 to this day despite the two investigations in these two


9
 systems, and so I would urge address of that issue as well.


10


The last two points I'll touch upon is amnesty and


11
 data collection, that we really don't have the full picture of


12
 the number of young people being prosecuted in the Ferguson


13
 Municipal Court or any of the munis. So greater data


14
 collection for all young people under the age of 18 in these


15
 courts, I think, needs to be collected so we can have a better


16
 handle on the minors and munis problem, and I would urge


17
 amnesty for all outstanding cases for kids under the age of 18


18
 who had cases in the Ferguson court.


19


Thank you.


20


THE COURT: Thank you.


21


All right. Blake Ashby.


22


MR. BLAKE ASHBY: Hi, Your Honor. Blake Ashby,


23
 resident of Ferguson.


24


I know you started this by saying that you are not


25 going to get in and renegotiate the Consent Decree, but I am


4/19/2016 Motion Hearing

78 1 asking you to refuse to sign the Consent Decree until the

2 Department of Justice agrees to remove section 38(d) from the

3 Consent Decree. It's a very small thing. Just to confirm, it

4 has nothing to do with constitutional policing. The DOJ

5 referenced a federal statute that addressed constitutional

6 policing. It has nothing to do with constitutional policing.

7 What it says is that the City of Ferguson should change its

8 occupancy permit law so that the City of Ferguson can't

9 require new people moving into an existing occupancy permit to

10 list their names. That's literally it. They're asking for

11 the City of Ferguson to change its occupancy permit laws, and

12 this has nothing to do with constitutional policing, but it

13 has everything to do with how the Department of Justice has

14 gone about this case.

15

When Michael Brown died, it was a tragedy, and it

16 unleashed lots and lots of anger and emotions that goes back

17 centuries, and there is certainly a basis for that anger.

18 There is certainly a basis for that emotion. What people are

19 talking about happens in our society, but very little of it

20 has to do with Ferguson.

21

I talked to a SLU professor and said the Ferguson

22 report was distorted. His comment was, "The experiences of

23 millions of people can't be wrong."

24

One of the speakers earlier referenced centuries of

25 oppression. Ferguson hasn't been around for centuries.

4/19/2016 Motion Hearing


79

1

I asked another person and said the Consent Decree or

2 the report says the policing for profit didn't start until

3 2011. His comment was, "Unconstitutional policing started

4 with Columbus."

5

All that might be true. That has nothing to do with

6 Ferguson.

7

So how did we get here? Because the anger is real

8 and the Department of Justice realized this was a unique time

9 in our history. This was a chance for the Department of

10 Justice to truly propose radical changes, to expand its

11 powers. And unfortunately, it makes me think of nothing so

12 much as 9/11. When 9/11 happened, when the Twin Towers fell,

13 President Bush's first thought was, "How can we use this to go

14 into Iraq?" When this situation happened in Ferguson, the

15 DOJ's first thought was, "How can we use this anger, harvest

16 this moment to start making a radical transformation of

17 society?"

18

And so the Consent Decree that Ferguson is being

19 asked to sign, as referenced earlier, is almost twice as long

20 as any other consent decree. The City of Cleveland -- we're

21 at 40 percent more mandates than Cleveland. Cleveland is 15

22 times bigger. And in Cleveland, a dozen police officers

23 pumped 128 rounds into a car with two people and killed them.

24 It is 70 percent more expensive than East Haven, Connecticut,

25 and in East Haven, Connecticut, four police officers went to

1 jail for beating up people.

4/19/2016 Motion Hearing
 80

2

There are very terrible things that happen in our

3 world, undoubtedly, but that is not what is happening in

4 Ferguson. Again, the Department of Justice has seen an

5 opportunity to expand its power, and so we are going to ask

6 you, obviously, to address that. So if you think about the -­

7 again, by any measure, the most sweeping Consent Decree ever.

8

Now -- so if we pass this as written, then the

9 Department of Justice will have opened up a door. They will

10 be able to go into literally any city that writes too many

11 traffic tickets and start getting into -- deep into their

12 political goals.

13

So you're saying why would the City of Ferguson have

14 signed a Consent Decree that allows the Department of Justice

15 to use a statute on federal policing to say that Ferguson no

16 longer has the right to live -- to know who lives in its city.

17 It's because this really was not an arm's length transaction.

18 They told you earlier it was seven months to a negotiated

19 settlement. That is the fastest settlement ever even though

20 this Consent Decree is almost twice as long as any other, and

21 the exchanges went like this:

22

Ferguson would say, "That's really expensive."

23

The DOJ would say, "We're going to sue you."

24

"I don't think we can do that."

25

"We're going to sue you."

4/19/2016 Motion Hearing


81

1

Over and over again, the DOJ used their very big

2 hammer to force an expansive and unrealistic Consent Decree on

3 the City of Ferguson.

4

And you think I'm exaggerating? There are over 1,000

5 deliverables in the Consent Decree. When the City of Ferguson

6 signed and said, "You know, we can't do these," they sued.

7

So, Your Honor, Ferguson made history. You're going

8 to make history today too. You're either going to allow the

9 Department of Justice to use a law on constitutional policing

10 to start dealing with housing codes and literally every aspect

11 of governance, or you're going to give the DOJ just a little

12 rap on the knuckles and say, "You have to take that one clause

13 out. That has nothing to do with constitutional policing."

14

Thank you.

15

THE COURT: Anthony Rothert.

16

MR. ANTHONY ROTHERT: Good morning, Your Honor. My

17 name's Anthony Rothert, and I am here on behalf of the

18 American Civil Liberties Union of Missouri to give some

19 comments on behalf of our 5,000 Missouri members.

20

And I'd like to begin by acknowledging what I saw in

21 several of the pieces of written testimony and have heard a

22 little bit today, and that is that Ferguson is certainly not

23 the only and probably not the worst offender, even in

24 St. Louis County, when it comes to racial bias and racial

25 profiling and policing, policing for profit, oppressive,

4/19/2016 Motion Hearing

82 1
 unconstitutional municipal court processes, and even things


2
 like using occupancy permits to perpetuate segregation and


3
 racial bias in policing.


4


But our federal civil rights laws, fortunately, do


5
 not require the Department of Justice or anyone else to only


6
 go after the very worst offenders. Just as we still prosecute


7
 people for stealing $1,000 even though other people steal a


8
 million dollars, when the laws are being violated and where


9
 there's significant evidence of unconstitutional practices, it


10
 is appropriate for the Department of Justice to get involved,


11
 and the results can be a Consent Decree like this that would


12
 go a long way if Ferguson's truly committed to the reforms, a


13
 long way to making Ferguson a model for its neighbors rather


14
 than just another neighbor that engages in unconstitutional


15
 practices.


16


I wanted to speak today because I've had some


17
 experience with consent judgments and the City of Ferguson.


18
 Unfortunately, the -- one of the first responses by the City


19
 of Ferguson -- and they had a lot of help from other


20
 government entities, but one of the first responses to


21
 criticism and scrutiny was to violate First Amendment rights


22
 and try to shut down transparency. As a result of some of


23
 that, there were two consent judgments that the ACLU was


24
 involved with, one in Hussein versus County of St. Louis,


25 which was case 14-CV-1410, and another was called Abdullah


4/19/2016 Motion Hearing

83 1 versus County of St. Louis, 14-CV-1436.

2

The wrong name for that is in the consent judgment,

3 by the way, for that second case.

4

In both those cases, the City of Ferguson entered

5 into consent judgments, and in our view, the compliance with

6 those consent judgments at best is half-hearted. At best.

7

So for that reason, we wanted to highlight for the

8 Court the importance of the Monitor, the Monitor provisions of

9 the proposed Consent Decree, and the importance of having a

10 Monitor that will ensure compliance with each aspect of this

11 Consent Decree.

12

One of those, for example, is paragraph 326 and

13 326(a) in particular, which has to do with comprehensive

14 immigration. Or not comprehensive immigration. Comprehensive

15 amnesty.

16

THE COURT: I was going to say I didn't think we were

17 in immigration.

18

MR. ANTHONY ROTHERT: I'm sure that has nothing to do

19 with amnesty.

20

All right. It provides that prosecution will be

21 declined in a bunch of old cases that aren't adjudicated yet

22 but leaves to the discretion of the prosecutor to find good

23 cause to continue prosecution. Where the prosecutor has been

24 a core problem, a core part of the violation of due process

25 and other constitutional rights, that certainly could be a

4/19/2016 Motion Hearing

84 1
 meaningless provision. It gives something. It gives amnesty


2
 but then takes it away by having the person who decides be


3
 part of the problem. And that combined with what I really


4
 believe to be the heartfelt denial of the City, several City


5
 officials, that there was ever anything wrong gives serious


6
 concern that there is not a real commitment to complying with


7
 the consent judgment.


8


However, if the City truly is held -- either chooses


9
 to comply with this or is held by having strict oversight to


10
 complying with the consent judgment, it will go a long way to


11
 bringing systemic reform to Ferguson that is not there today,


12
 and for that reason, we'd encourage you to approve the consent


13
 judgment with the understanding that there will be strict


14
 oversight.


15


THE COURT: Thank you.


16


All right. Felicia Pulliam.


17


MS. FELICIA PULLIAM: Good morning, Your Honor. How


18
 are you? Thank you so much for this opportunity. I know that


19
 you didn't have to do it, and I think that it is both gracious


20
 and generous of you. My name is Felicia Pulliam, and I'm a


21
 North County girl. I live right now in my community, in the


22
 city of Ferguson, and have resided there for six years, but I


23
 have lived throughout the community, and it is unfortunate


24
 that you cannot take this Consent Decree and weave a great big


25 quilt and blanket all of St. Louis County because the rampant


4/19/2016 Motion Hearing

85 1
 racism is systemic, and it runs throughout the county, but we


2
 do have an opportunity in this one municipality under the


3
 Consent Decree.


4


I am a cofounder and member of ONE Ferguson, a


5
 trustee of the Come Together Ferguson Fund. I'm a member of


6
 the -- of NPSC and a former commissioner and cochair of the


7
 Economic Inequity Working Group of the Ferguson Commission,


8
 and that translated into the Opportunity to Thrive component


9
 of that report, and so it is clear where I stand regarding the


10
 issues to dismantle structures and systems of racism and


11
 provide opportunity.


12


I think that it is a privilege to have access to


13
 justice. If we just look around at who is available here


14
 today, we see that the people that are most egregiously abused


15
 aren't here. They don't have an opportunity to lift up their


16
 voice, and I have grave concerns that the City of Ferguson has


17
 the ability or is willing to implement any of the components


18
 of the Consent Decree. They still continue to deny that


19
 there's been any harm done, that they've done anything wrong.


20
 They will not humble themselves. They won't apologize to the


21
 community. They continue to fortify -- fortify structural


22
 boundaries that separate community. I haven't seen any


23
 efforts of transparency. I haven't seen any efforts of


24
 community engagement. They refused to comply with the


25 consultant for NPSC that said, "Let's mail out some cards.


4/19/2016 Motion Hearing

86 1 Let's have a meeting in that community to make this

2 opportunity accessible for people broadly." And they refused

3 to do it. I haven't seen any indication, despite what they

4 say, that the City of Ferguson is prepared to make any

5 changes.

6

They have been dangerously deceptive, just -- just in

7 saying, "Oh, yes, we've approved the Consent Decree," when

8 everyone knew that they hadn't.

9

"Oh, yes, we're making changes."

10

We know that they haven't made the changes. They

11 have an inability to be flexible, to adapt. Their leadership

12 is lacking in a myriad of ways. Simple things like making

13 sure that there's an appropriate venue so that citizens that

14 have an opportunity to participate can, but they consistently

15 held what they knew would be large and contentious meetings in

16 small spaces and locked out citizens over and over and over

17 again.

18

They've refused to answer questions. I've objected

19 to the process. They've refused to answer questions. They

20 don't treat the citizens that have real concerns like human

21 beings. They will not represent them. They will not answer

22 questions, and they cannot be trusted.

23

Even on the issue of the budget regarding the

24 implementation of the Consent Decree, we had several budget

25 meetings, and at every meeting, there was a new number; there

4/19/2016 Motion Hearing

87 1 was a new reason why it could not be implemented, a new reason

2 why we couldn't afford it.

3

Then they started talking about a structural deficit.

4 They tried to blame that deficit on the unrest after Mike

5 Brown was murdered, but when you review -- when you review the

6 budget, you can see that the structural deficit started years

7 before, but they want to lay this broken budget over that

8 boy's bloody body. They can't be trusted. They never ever

9 tell the truth.

10

The City Attorney is a huge part of the problem. As

11 long as she's in place, I don't believe that anyone's going to

12 ever feel as if we can make any progress.

13

SROs in schools are a really, really bad thing. I

14 don't think that that is very helpful.

15

And, yes, we would like for the hate, the fear, the

16 intimidation, harassment, disrespect, disruption, targeting of

17 citizens, and anger to stop. I understand that citizens that

18 don't look like me don't want those things to happen to them.

19 We don't want it to happen to us or to anyone that looks like

20 us in this community or anywhere else.

21

Thank you.

22

THE COURT: Thank you.

23

Denise Lieberman.

24

MS. DENISE LIEBERMAN: Good morning, Your Honor.

25 Thank you for the opportunity to speak today on the proposed

4/19/2016 Motion Hearing

88 1
 Consent Decree in Ferguson. My name's Denise Lieberman. I'm


2
 a Senior Attorney with Advancement Project, a racial justice


3
 organization that works to dismantle systemic barriers to


4
 participation in democracy. I'm a resident of the city of


5
 St. Louis and, for more than two decades, have worked as a


6
 civil rights lawyer in this community, focusing on issues of


7
 systemic bias. I serve as cochair of the Don't Shoot


8
 Coalition, a coalition of dozens of local organizations that


9
 have convened in the aftermath of the shooting death of


10
 Michael Brown to advocate for needed policing reforms and an


11
 end to biased policing. The Don't Shoot Coalition works to


12
 advance structural change to combat institutional racism and


13
 enhance public safety and police accountability. We support


14
 community-based advocates such as the Ferguson Collaborative


15
 to ensure that they have a voice in advocating for needed


16
 reforms in their communities.


17


As investigations following the shooting death of


18
 Michael Brown have revealed, the Department of Justice found a


19
 pattern and practice of unconstitutional racial bias in


20
 policing in Ferguson against African-Americans and communities


21
 of color. It found both impermissible discriminatory impact


22
 as well as prohibited discriminatory intent. And this has


23
 plagued this community for decades. Biased policing is a


24
 direct affront to the proposition that the job of police is to


25 protect and serve the communities, and it has broad and


4/19/2016 Motion Hearing

89 1 long-lasting consequences. Biased policing alienates

2 communities from police, impedes community policing, feeds a

3 policing culture of militarization and excessive force and

4 exacerbates the lost credibility that police have earned in

5 Ferguson and too many other communities. Over time, it

6 creates deeply embedded inequalities of opportunity and power

7 in numerous areas of life, and these harms are among the

8 reasons why the law allows the Department of Justice and the

9 courts to step in in cases like this and oversee and mandate

10 change.

11

We understand, Your Honor, that you can't alter the

12 terms of the proposed decree, but you do have discretion in

13 this matter. For this decree to be fair, reasonable, and

14 adequate, this Court can use its discretion to ensure

15 effective oversight, monitoring, community involvement in

16 implementation, and government accountability in carrying out

17 its constitutional obligations. This proposed decree must

18 have strong accountability written into its provisions if it

19 is to usher any long-term, sustainable change after federal

20 enforcement ends.

21

Community engagement is essential to protecting the

22 rights of citizens and holding public officials accountable.

23 This Court can help ensure the success of the decree and the

24 remedy proposed today by building community engagement and

25 accountability into the enforcement mechanisms of the decree.

4/19/2016 Motion Hearing

90 1 So true community engagement is key, and this particularly

2 involves the selection of the Monitors. Community involvement

3 must be intentional and diverse, include deep engagement from

4 citizens of color, youth, formerly incarcerated individuals,

5 and others who have been directly impacted by biased policing

6 in Ferguson.

7

Second, citizen groups, including the Neighborhood

8 Policing Steering Committee, that are discussed in the decree

9 need genuine institutional authority. This entity should be

10 permanent, and it needs to have the ability to engage in

11 reforms in more than just an advisory capacity. It should

12 include an emphasis on nonpolicing solutions as well.

13

Third, the Civilian Review Board must be empowered

14 with a substantive and thorough review process that allows it

15 to hold police accountable for problematic activity and

16 enforce genuine involvement in policy, training, and hiring.

17 It needs access to the evidence it needs to do the job.

18

Finally, Don't Shoot also believes that provisions

19 related to body cameras need to be strengthened, and there are

20 numerous policy examples throughout the country that evidence

21 the need for written policies that protect issues of camera

22 use, privacy, how the data is stored, and other measures that

23 have been discussed by other panelists today.

24

This decree includes necessary and critical

25 provisions on data collection, training and evaluation, use of

4/19/2016 Motion Hearing

91 1
 force policy, and early warning systems, but its success as a


2
 long-term tool of reform will depend on the strength of this


3
 Court's oversight and its strengthening public accountability


4
 and citizen involvement in that process. Thank you.


5


THE COURT: Thank you.


6


Mildred Clines.


7


MS. MILDRED CLINES: Good morning. Good morning,


8
 Your Honor. My name is Mildred Clines. I am a 28-year


9
 resident of Ferguson. I also live in an area called Ward 3,


10
 which is probably 98 percent African-Americans, and we feel


11
 the most marginalized. I'm a homeowner also for that same


12
 length of time.


13


I really want to thank the Department of Justice for


14
 coming into our city to help us. I want to thank all the


15
 allies that came in from across the country to help us, us


16
 being the African-Americans of this community. We felt


17
 helpless. As an African-American in this community, I


18
 welcomed the report, a lot of which I already kind of knew was


19
 going on in Ferguson but felt helpless to do anything about


20
 it. So I was glad when they came in.


21


Also, I am a member of the Ferguson Collaborative.


22
 We have worked hard -- the Ferguson Collaborative -- to be


23
 diverse, inclusive, which means we have people there with


24
 diversity of thoughts, opinions, diverse races, and we stand


25 by this Consent Decree. We really are urging you to approve


4/19/2016 Motion Hearing

92 1 it. We think it's a good decree. They did a lot of hard

2 work, both the City and the Department of Justice, but we

3 think that it needs a little bit more strength to it, and I

4 don't know if you have -- if you can do that, but, you know,

5 that's just our opinion.

6

I'm not very well-polished. I'll just speak how I

7 speak, but the law firm that the City hired to represent the

8 City -- they don't represent the residents, you know, because

9 we -- they have constantly fought this tooth and nail all the

10 way, and we've been crying, "Yes, this is going on." You

11 know, we even have -- our mayor -- he still say he didn't feel

12 like there was a racial divide, but he also doubts a lot of

13 the evidence or a lot of the information that's in the decree

14 or in the -- the investigation, and I mean if you can't even

15 believe what people in your city are coming forth to say is

16 going on in your community, how can you in good conscience

17 implement this?

18

We definitely need this independent Monitor to

19 oversee the implementation of this decree. Someone said it

20 was for two years. I wish we could at least have it for at

21 least five years because this is going to be a long, hard

22 fight.

23

I'm a part of the Neighborhood Police Steering

24 Committee as well, and already, there is in this group -- it's

25 a very minute membership from the African-American community.

4/19/2016 Motion Hearing

93 1 The people who are most affected by all these findings are not

2 engaged. We have to figure out a way to get them engaged as

3 well, and nothing is really being done by the City because I

4 believe they could actively go out and mail -- mail -- have

5 mailings to those people in the community, but the people in

6 the community feel so discouraged. They feel like their

7 voices don't matter, you know, nothing they can really do

8 because they don't have any power. You know, so I think that

9 we need to have something in place like this independent

10 Monitor, and I also believe that maybe our citizens can be a

11 part of that team.

12

I'm also a member of the Civilian Review Board Task

13 Force, and also, there's things in there that don't give us

14 any power. There's no investigative power. There's no

15 subpoena power. There's nothing to compel the police to come

16 to testify before us. I know the Department of Justice

17 mentioned investigative -- investigations, but the Civilian

18 Review Board would not have any investigative power. So I

19 think that's something that needs to be addressed as well.

20

Thank you for your time.

21

THE COURT: Thank you.

22

Robert Wells.

23

MR. ROBERT WELLS: May it please the Court. My name

24 is Robert Wells. I'm from Belleville, Illinois. You might ask

25 why am I here. I have been engaged in this sort of incident

4/19/2016 Motion Hearing

94 1
 for the last 20 years and learned about it at nine years of


2
 age as far as racial injustice. What I'd like to explain is


3
 that -­

4


THE COURT: Mr. Wells, can you pull that microphone


5
 so it's straight up? Okay. Thank you.


6


MR. ROBERT WELLS: Certainly.


7


THE COURT: That's fine.


8


MR. ROBERT WELLS: Four days before Ferguson, a


9
 group, one organization I belong to, had a meeting. It was a


10
 positive collaboration between law enforcement, students, and


11
 their schools. We had the U.S. Attorney from East St. Louis.


12
 We had the Sheriff. We had a judge. We had a superintendent


13
 of schools. They were there trying to address these issues.


14
 Right now, I'm in discussion with some of the people in


15
 Chicago -- a judge, a professor, and some others who are


16
 trying to put together some issues that they're concerned with


17
 concerning what's happening in their city.


18


And I realize your function today is to approve or


19
 disapprove of this document that's been presented to you, the


20
 consent agreement, but what I would encourage or where my


21
 focus lies today is I'd like you to take this opportunity to


22
 put in there a commentary of this Court as to how it perceives


23
 this agreement, how it would like to see this agreement


24
 implemented, how it would like to see good faith be part of


25 it. We have seen this morning that both sides have presented


4/19/2016 Motion Hearing

95 1
 and agreed to this, but from my tenure in law school, one was


2
 a grumbling acceptance. It was an acceptance that says,


3
 "We're not going to oppose it," but it wasn't with the force


4
 and with the vigor that one might hope is necessary for this


5
 thing to carry through to fruition.


6


The key aspect, I believe, since this agreement is


7
 either going to be accepted or not accepted, is, as was


8
 mentioned by some of the earlier speakers, the Monitor. Who


9
 is the Monitor? How is the Monitor going to be chosen? How


10
 is the Monitor going to build up the trustworthiness that's


11
 necessary for that Monitor to have an impact and be fair in


12
 this agreement? This Court may be faced with repetitive


13
 contact back with Ferguson unless that Monitor is chosen from


14
 someone who has the ability to mediate this, to work through


15
 it, to have the neutrality that's necessary in order to


16
 further what's needed in this case.


17


This morning, while I was here, I walked down to the


18
 downstairs of the courthouse, and in there, if you go through


19
 the little historical section, it says, "Imagine if," and I


20
 really would suggest that in your commentary that that would


21
 be part of it. Imagine if this was how this agreement were to


22
 be implemented. Imagine if this was the good faith that was


23
 getting found in the community. Imagine if this is the hope


24
 that can be given to those who have been disenfranchised.


25 Imagine the hope to a police officer who knows that we're


1 concerned about his wellness.

4/19/2016 Motion Hearing
 96

2

I'd ask the Court to look at the 20th [sic] Century

3 Report on Policing, which I'm sure you have, and consider the

4 commentary in there because there are five component parts.

5 There are five pillars in that agreement that focus on what's

6 needed for these things to work. Because not only did we

7 have -- that group I was with, Racial Harmony -- have a

8 meeting in which we had that event four days before Ferguson;

9 since Ferguson, we've had three police chiefs and the U.S.

10 Attorney appear in a forum with the community in which the

11 community got to interact with the individuals, interact and

12 see they were human. One woman came up to me afterwards and

13 said, "I've never been able to talk to a police officer

14 before. I've never been able to experience this."

15

So what we ask the Court to do is give hope to the

16 community, give an opportunity for the community to heal, and

17 see that the Monitor is one worthy of this tremendous task.

18

Thank you.

19

THE COURT: Thank you.

20

Sandy Hunter.

21

MS. SANDY HUNTER: Your Honor, my name is Sandy

22 Hunter, and I live in Ferguson. I'm a third-generation, proud

23 member of the Ferguson community. I'm here to read on behalf

24 of Stefannie Wheat who wanted her views known, and she was

25 unable because of a work conflict to come. I'm reading this

4/19/2016 Motion Hearing

97 1 on behalf of Stefannie. And I quote:

2

"I'm an 18-year resident of Ferguson along with my

3 husband, Kenneth Wheat. We have raised three children in

4 Ferguson. Our racial makeup, for the sake of conversation, is

5 African, European, and Asian. We are avid volunteers in a

6 variety of Ferguson programs, and my husband is a board member

7 of the 'I Love Ferguson' store and the Fourth of July

8 Committee.

9

"Since August 2014, I have observed a bias in the

10 methods that the Department of Justice has used, particularly

11 in its community relations team and its information gathering.

12 Problems which have occurred include, but are not limited to,

13 refusal of the DOJ staff to talk with residents about positive

14 interactions with the police. Residents were turned away,

15 brushed off, and disregarded when approaching agents with

16 positive information.

17

"September 2014, I sat in an Old Ferguson West

18 meeting in which the DOJ requested to speak to residents, and

19 I was asked to respond with only negative complaints or

20 information that I may have about the Ferguson Police

21 Department. I had none.

22

"On August 6th, 2015, I personally held a meeting

23 with residents in my home and invited DOJ, Darryck Dean. He

24 was an hour late coming and only came at the call of Mayor

25 James Knowles. Mr. Dean did not follow up with inquiries of

4/19/2016 Motion Hearing

98 1 the residents, even after several attempts to reach him.

2

"Use of intimidation and suppression in DOJ meetings

3 has occurred. The last town hall meeting held was open to the

4 public. A large group of about 100, mostly out of state

5 students were placed in the front rows. Activists, protesters

6 who were not residents and had no prior stake in Ferguson were

7 present and allowed to be loud. Phones were also permitted,

8 and tweets immediately went out. This allowed anyone with a

9 dissenting opinion to be instantly mocked and threatened.

10

"In December 2014, my home address was tweeted by

11 postal employee Debra Kennedy. Two days later, my home was

12 invaded. A day later, she attempted to create a protest in my

13 name, calling it 'Okay, Buckwheat.'

14

"In a recent city hall meeting, my husband, Kenneth

15 Wheat, was physically assaulted by Karl Tricamo. A court date

16 is pending. It was only after the DOJ agents witnessed the

17 assault did Dean and three other DOJ members contact Ferguson

18 Truth, an organization in which myself and my husband are

19 members, and request to meet with a group of residents to

20 discuss how the DOJ could assist in healing Ferguson.

21

"As in all of the above, the DOJ has shown a biased

22 preference in working solely with those critical of Ferguson,

23 including those who had no prior connection with Ferguson,

24 while rebuffing long-time residents who sought to speak with

25 them. The DOJ has broken trust, and many residents have

4/19/2016 Motion Hearing

99 1 strong cause to believe they are operating here solely for

2 political purposes.

3

"The community police steering committee, one part of

4 the decree which the City has begun, is being stalled by

5 antipolice activists. These persons, many who are not

6 residents of the city, have openly stated that they do not

7 want police at committee events. This group is stalling and

8 obstructing a progression to allow for the creation of

9 neighborhood groups and task force groups that residents were

10 promised could focus on problems such as the gunfire and

11 traffic violations. The DOJ must be required to allow the

12 City to remove persons from committees who will not allow the

13 said committees to achieve their public safety objectives.

14

"I ask the Court to consider as part of the fairness

15 hearings to require the Department of Justice to comply with

16 the following in a timely manner within six months: To reveal

17 methodology and all documentation in its statistics, including

18 determination of residency and race; to reveal methodology and

19 all documentation in gathering police reports, anecdotes,

20 et cetera, and the extent to which they were validated or

21 unconfirmed, if not the actual report itself."

22

THE COURT: Your time is up, ma'am.

23

MS. SANDY HUNTER: Oh, okay.

24

THE COURT: Thank you.

25

I don't know if it's Jean or Jean. Jean Boettcher.

4/19/2016 Motion Hearing


100

1


MS. JEAN BOETTCHER: Good afternoon, Your Honor. My


2
 name is Jean Boettcher, and I am a third-generation Ferguson


3
 resident. Thank you for allowing us to -- the opportunity to


4
 speak.


5


I think that the DOJ has gone beyond appropriateness


6
 with their demands. There are many cities in the area that


7
 have been accused of more significant abuses. Ferguson had


8
 already begun to make improvements in policing and court


9
 procedures. The percentage of revenue Ferguson collected from


10
 ticketing and fees was below that required by law.


11


In the January 29th issue of the St. Louis


12
 Post-Dispatch, former St. Louis County Police Chief Tom [sic]


13
 Fitch said he was unaware of any police department that


14
 fulfilled all of the requirements that the DOJ outlined in its


15
 proposed settlement with Ferguson. I continue to quote the


16
 article. "Those requirements include officers must get a


17
 supervisor's approval before arresting someone for failure to


18
 comply or for a peace disturbance. Officers who handle


19
 incidents without resorting to force shall be rewarded.


20
 Officers must complete neighborhood policing training beyond


21
 the State's requirements to maintain their licenses."


22


Fitch goes on to say, "This goes way beyond, and I


23
 mean way beyond, what accreditation requires. To expect that


24
 Ferguson, with a department of 50 officers, can pull that off


25 is unrealistic."


4/19/2016 Motion Hearing


101

1


Tom [sic] Fitch is a private security consultant and


2
 evaluator for the Commission on Accreditation for Law


3
 Enforcement Agencies.


4


In the January 28th edition of the St. Louis


5
 Post-Dispatch, John Ammann, a St. Louis University law


6
 professor and legal clinic supervisor, praised the consent


7
 agreement for its detail. "But," he said, "many other cities


8
 accused of the same abuses need to be held accountable. This


9
 wasn't just about Ferguson," he said. "Two years ago, had you


10
 asked us which were the five worst cities for operation of


11
 their municipal courts, Ferguson wasn't even in the top five.


12
 So if the Justice Department is coming down this hard on


13
 Ferguson, it should be doing the same with these other cities


14
 too."


15


This is a fairness hearing. John Ammann's comments


16
 point out the fact that Ferguson has been treated unfairly.


17
 Many more cities in the area have abused the system in more


18
 egregious ways. And why do you think they picked on Ferguson?


19
 Ferguson is not just a good city. It's a hometown. It's my


20
 hometown. I think the Justice Department estimated that they


21
 would get a conviction against Darren Wilson. When that


22
 didn't happen, they decided to take their frustration out on


23
 Ferguson. I'm saddened by what has been the result.


24


I'd like to quote a few points from a statement by


25 Lieutenant Governor Peter Kinder decrying the outrageous


4/19/2016 Motion Hearing

102 1 overreach of the DOJ attack on the residents of Ferguson.

2

"The Department of Justice lawsuit is nothing less

3 than an assault on the taxpayers of Ferguson. Ferguson

4 leaders are making a good faith effort to adopt reforms to

5 correct past problems, but the Justice Department demands

6 would force the City to stop providing basic services to

7 residents to pay for mandated wage hikes. The DOJ is behaving

8 like an emperor in a far distant castle, handing down decrees

9 to its subjects. If they can do this to Ferguson, they can do

10 it to Neosho or Tarkio or Poplar Bluff. Someone needs to

11 stand up to this outrageous overreach."

12

I don't think the DOJ has been fair with us. I am

13 wondering if they took the data and statistics they gleaned in

14 their investigation and misrepresented them or out-and-out

15 falsified them. I think the DOJ wanted to wipe Ferguson off

16 the map. This should be a warning to the rest of the United

17 States. Why do they want to ruin this community by putting

18 all of these restrictions on us?

19

Ferguson has been an integrated city for decades.

20 People who were afraid of integration all moved out years ago

21 when white flight occurred. I don't feel that the DOJ cares

22 about the people of Ferguson. They just want to exercise

23 their power. I just want to say that the lives of people in

24 Ferguson matter and the life of Ferguson matters.

25

Thank you.

4/19/2016 Motion Hearing


103

1

THE COURT: Thank you.

2

Heather De Mian.

3

MS. HEATHER DE MIAN: Heather De Mian.

4

THE COURT: And please correct me if I mispronounced

5 your name.

6

MS. HEATHER DE MIAN: De Mian.

7

THE COURT: De Mian. Okay. Thank you.

8

MS. HEATHER DE MIAN: I live in St. Charles.

9

The Consent Decree -- one thing I -- "The Ferguson

10 police officers will not be -- will not use canned,

11 boilerplate, or conclusory language in reports," et cetera.

12 It's section 30 or 76. So when -- when -- my concern, though,

13 is they're not allowed to lie in their police reports anymore,

14 but the Ferguson court -- the prosecutors, the Ferguson

15 prosecutors, keep using falsified police reports to prosecute

16 people who were arrested in Ferguson in 2014, you know, during

17 the time period of the protests that the Justice Department

18 has already criticized St. Louis County and Ferguson both for,

19 for their response to.

20

I find it -- I've watched -- I watched one Ferguson

21 prosecutor this week or last week twice argue that the mere

22 fact that an arrest occurred is proof of guilt, which is like

23 the exact opposite of what I learned the first day in law

24 school. He has -- they have a falsified police report with no

25 time or no exact time or location of their arrest, and they

4/19/2016 Motion Hearing

104 1
 don't even have the identification of the arresting officers,


2
 and I keep watching. You know, the -- my understanding is an


3
 arrest is an accusation and not proof of anything.


4


I also find it very disturbing when a -- when a


5
 prosecutor decides to cross-examine a defendant with the


6
 dictionary definition of their non-status-quo political


7
 ideology. You know, I know plenty of people who call


8
 themselves anarchists, and it just means they don't believe


9
 that laws should exist, but when he goes into a dictionary


10
 definition, "Well, see, this says it means it's violent,"


11
 well, you're only using part of the definition, and you're


12
 trying to create a list like Joseph McCarthy. I'm like, okay.


13
 You're going after anarchists instead of communists. This is


14
 a problem.


15


They're not allowed to have retaliation for First


16
 Amendment activities. The police are not allowed to


17
 retaliate. Well, what about the prosecutors? Because many of


18
 the protester arrests that I've been witnessing in court, the


19
 prosecutor -- that is purely what it is because they're not


20
 going after them for revenue because they're spending


21
 thousands of dollars to prosecute people that if they win -­

22
 and some of these cases, they have not won -- the worst they


23
 could get is $150 fine. This part is obviously retaliation


24
 for the protesters exercising their First Amendment rights.


25

Also -- logic pretzel -- if proof of an arrest -- if


4/19/2016 Motion Hearing

105 1 the fact of an arrest is proof of guilt, then my charges

2 shouldn't have been dropped; I should still be being

3 prosecuted under the false police report.

4

And also, prosecutors should not be able to keep

5 suborning perjury from Ferguson officers on the stand, and

6 they shouldn't be able to make up things themselves in front

7 of the judge. Like in my police report, the police claim I

8 assaulted them. I did not. They actually said, "I felt

9 something hit me, and I assumed that she did it." Then I see

10 a prosecutor get up in front of a judge and actively pretend

11 that she is trying to pretend to be me and act like she's

12 hitting a police officer with -- you know, with a monopod like

13 I have on my phone for recording.

14

I should never have been arrested for filming on the

15 sidewalk because there was already a restraining order in

16 place on November 25th, and I wasn't arrested until February

17 9th. Those charges were held against me for 11 months. They

18 weren't even dropped until January. The -- the retaliation of

19 the prosecutors needs to be -- the DOJ needs to look at that.

20

And, yes, absolutely, tons of other munis in this

21 area and St. Louis County -- because St. Louis County is doing

22 retaliatory prosecutions against journalists and prosecutors

23 or protestors and journalists as well. So St. Louis County

24 really needs investigated as well. That's true.

25

Okay. I've only got 20 seconds. I'm not going to be


4/19/2016 Motion Hearing

106 1 able to go any farther. So I'll just stop there.

2

THE COURT: Thank you.

3

Sarah Glenn.

4

MS. SARAH GLENN: Thank you. My name's Sarah Glenn.

5 I currently live in St. Louis City.

6

I want to thank the Court for taking input from the

7 public. It's crucial to listen to the community because only

8 the community members fully understand their own needs. The

9 DOJ doesn't have firsthand experience with what's going on in

10 Ferguson, and the City officials certainly can't be trusted to

11 meet the needs of the community because they're the ones who

12 created the problem in the first place.

13

Let me start by saying I didn't grow up around any of

14 this. I was born and raised in St. Charles County, and when I

15 heard the police had shot and killed an unarmed teenager in a

16 neighboring county, I was shocked. That doesn't happen where

17 I'm from, and it shouldn't happen. So I went to join the

18 protestors, and despite warnings from my white family and

19 neighbors, I was welcomed like family.

20

Ferguson opened my eyes to what was really going on

21 in the world. I had been taught that the police in my

22 community were there to protect me, but in Ferguson, the

23 police behaved like an occupying force and treated the

24 community members like the enemy. They were literally

25 shooting weapons at us from tanks.

4/19/2016 Motion Hearing


107

1

I'm not going to tell stories about the police

2 abusing me personally because they don't. Because of my skin

3 color, I have the privilege of not having to suffer that

4 abuse. In situations where I'm not acting as a protester, I'm

5 the one the police are there to protect at the expense of

6 everyone else.

7

And even when I am a protester, even when they don't

8 like me, I'm treated better than the people of color who are

9 protesting alongside me. If I tell the officer arresting me

10 they're twisting my arm too hard and it hurts, they loosen up.

11 Meanwhile a few feet away, right in front of my face, I'm

12 watching officers arrest my black friends by pepper spraying

13 them directly in the face, throwing them to the ground, and

14 digging a knee into their back. They're not resisting.

15 They're not doing anything different than what I was doing.

16 You would think that they would at least try to hide their

17 racism, but they don't. As a white person, I'm allowed to

18 protest and am much less likely to get hurt than a person of

19 color.

20

I could choose to go back to living a peaceful life

21 in a nice, white neighborhood and never worry that the police

22 will harass, arrest, injure, or kill me as long as I obey the

23 law, but after what I've seen, I won't. My friends don't get

24 to make that choice. Resistance to oppression is a necessity

25 for them, and the police are the enforcers of that oppression.

4/19/2016 Motion Hearing

108 1 They're the force that keeps white supremacy in place, kicking

2 down anyone who dares to stand up and demand to be treated

3 like a human being.

4

It's because of this that there can be no good faith

5 between the police and the community. The City of Ferguson

6 and the Ferguson PD have been fighting the Consent Decree

7 since it was proposed. They fight every reform tooth and

8 nail, and when they lose, we're supposed to expect them to

9 just say, "Aw, shucks," and do what they're told? No. As

10 soon as the DOJ looks away, they're going to go right back to

11 institutionalized oppression.

12

Neither the police nor the City can be trusted to

13 follow the Consent Decree without the citizens having the

14 power to hold them accountable, and they need to be

15 accountable in particular to the black citizens of Ferguson

16 who are victims of oppression, not the white people who will

17 tell you everything is fine.

18

The Consent Decree proposes a Civilian Review Board

19 and Neighborhood Policing Steering Committee to give citizens

20 more power, and the City of Ferguson is already trying to

21 weaken these organizations any way it can. For example,

22 Ferguson has started having meetings for the Neighborhood

23 Policing Steering Committee, but they refuse to invite the

24 people who most need to be involved. The way information is

25 passed around in Ferguson is like an old boys' club. So

4/19/2016 Motion Hearing

109 1
 people of color never hear about things that are going on in


2
 their community. This just further demonstrates the City of


3
 Ferguson's constant fight to preserve white supremacy in any


4
 way it can and how City officials can't be trusted. The CRB


5
 needs to represent the black citizens of Ferguson who are the


6
 victims of police brutality. This cannot be stressed enough.


7
 Some token board full of white people who benefit from the


8
 City's racism and want things to stay exactly the way they are


9
 is useless. The City cannot be trusted to be inclusive.


10


Furthermore, the City officials caused the problem.


11
 They can't be trusted to fix it. The CRB needs to be


12
 completely independent of the Mayor, the Council, the City


13
 Manager, and all City officials. Members should be nominated


14
 and elected by the public, meaning the whole city, not just


15
 the white old boys' club doing things behind closed doors the


16
 way they always do. The City of Ferguson doesn't want


17
 citizens making decisions in their own community because they


18
 don't care about the citizens. They care about maintaining


19
 the status quo.


20


The Civilian Review Board as proposed doesn't have


21
 the power to subpoena the police in cases of police


22
 misconduct. It gives discretion to the police to determine


23
 what evidence to share. The City's proposal relies on good


24
 faith that the Ferguson Police Department will cooperate, and


25 if you've been on the ground in Ferguson, you know there is no


4/19/2016 Motion Hearing

110 1 good faith. The CRB needs to have the tools to catch the

2 police in their wrongdoing and discipline them accordingly.

3 It's here to protect oppressed citizens from a police force

4 that was never meant to serve them.

5

The problem is the people who are making the changes

6 are the same people who caused the problem in the first place

7 and the people making laws don't understand the needs of the

8 community. They are just trying to avoid scrutiny. Enforcing

9 the Consent Decree is dependent on the CRB and Neighborhood

10 Policing Steering Committee being as strong as possible, and I

11 implore you to be vigorous in the creation of these

12 much-needed organizations, to strengthen the language in the

13 Consent Decree in order to prevent the City of Ferguson from

14 weakening the power of the community.

15

Thank you.

16

THE COURT: Thank you.

17

Debra Kennedy.

18

MS. DEBRA KENNEDY: Thank you, Your Honor. Debra

19 Kennedy, St. Charles. I'm a future Ferguson resident who is

20 aggressively searching for a home in the city. I came today

21 because I'm wary that the same people who have committed these

22 egregious violations will be expected to implement these

23 reforms on themselves. The Consent Decree calls for Ferguson

24 to implement a community policing program, but it puts the

25 power in the hands of wealthy white people who have never had

4/19/2016 Motion Hearing

111 1 negative interactions with the police; so they don't think the

2 police need any reforms.

3

Ferguson police officers have continued to violate

4 people's rights up to this day, even under the scrutiny of the

5 Department of Justice. They have continued to except and

6 ignore complaints. The Consent Decree put new powers in the

7 same incapable hands of police supervisors. These are the

8 ones that oversaw all the past violations. For example,

9 Sergeant Dilworth, now Lieutenant Dilworth, who has been known

10 for years to be one of the most abusive cops, was promoted

11 only because there were no other blacks to promote. Another

12 example -- Officer Eddie Boyd continues to cause embarrassment

13 and lawsuits against Ferguson; yet his supervisors continue to

14 cover for him. Another example -- Sergeant Harris came to

15 court last week and lied in two people's trials. This would

16 be a violation of the Consent Decree's new policy entitled

17 "Duty of Candor." Now we are supposed to trust their

18 supervisors to suddenly grow a conscience, finally start

19 punishing their buddies for lying, even though they have

20 encouraged them to lie in the recent past.

21

The Consent Decree relies on added training to

22 attempt to improve the problems, but that won't work. How can

23 you train a racist cop to stop being racist, especially when

24 they refuse to admit that they're a racist? How can you train

25 an -- how can you train an abusive cop to stop being abusive,

4/19/2016 Motion Hearing

112 1
 especially when they refuse to admit that they are abusive?


2
 You can't teach an old dog new tricks, and as we've learned


3
 from the DOJ report, the Ferguson dogs only attack black


4
 people.


5


Ferguson hired a new police chief from Miami, even


6
 though that department was just put under a consent decree.


7
 So they are bringing in somebody who most likely participated


8
 in unconstitutional practices down in Florida.


9


Jeffrey Blume, the Finance Director, encouraged them


10
 to keep targeting black people to bring in money. He inflated


11
 the projected costs of instituting constitutional policing in


12
 an attempt to cause panic among the white residents, who


13
 thought that approving a consent decree would lead to the


14
 destruction of their city. The truth only came out after a


15
 Post-Dispatch investigation showed that he manipulated the


16
 numbers and outright lied.


17


Another Ferguson official who refuses to accept


18
 responsibility for this pattern and practice of racism is


19
 Ferguson City Attorney Stephanie Karr, who also acts as the


20
 Ferguson City Prosecutor. When being investigated by the


21
 Missouri Bar, Stephanie Karr said that the findings in the DOJ


22
 report were untrue. The law firm Curtis, Heinz, Garrett &


23
 O'Keefe must be barred from having its principals act as both


24
 the City Attorney and the prosecutor. This is a direct


25 conflict of interest. Ferguson provides a blank check to


4/19/2016 Motion Hearing

113 1
 Stephanie Karr to terrorize people who have dared to exercise


2
 their First Amendment rights. Ferguson has continued to pay


3
 Stephanie Karr large sums of money while also requesting tax


4
 increases and crying about not being able to afford


5
 constitutional policing demanded by the Consent Decree.


6


Reporters like Stephen Deere of the Post-Dispatch


7
 have reported on Ferguson's questionable spending choices.


8
 Ferguson paid CHGO an extra $6,270 in January alone to


9
 prosecute politically motivated cases against protestors.


10
 Vindictive Stephanie Karr insists on prosecuting


11
 unconstitutional arrests even when she's told to drop the


12
 cases. But as we've learned from the DOJ report, she can drop


13
 charges for her friends.


14


The Court needs to step in and defend the legal


15
 profession from the shame brought on by Ferguson's municipal


16
 court racket. I'm still waiting on somebody in Ferguson to be


17
 arrested for racketeering.


18


In conclusion, Ferguson officials continue to refuse


19
 to accept that the findings in the DOJ report are true. They


20
 repeatedly deny the veracity of even the most obvious


21
 violations, and if they won't accept that these violations


22
 ever occurred, how can we expect them to put forth any efforts


23
 necessary to make change? The mere fact that even today the


24
 Mayor, the attorneys still deny any violations occurred -­

25 they're still in denial -- it shows that they have no -- they


4/19/2016 Motion Hearing

114 1 have no intention of violating the Consent Decree.

2

THE COURT: All right. Thank you.

3

We're going to take a lunch recess at this time. So

4 we will be in recess until 1:30, and there are, I think, six

5 people remaining to speak, and then I'll hear from the lawyers

6 for the parties again, and in particular, I would appreciate

7 it if counsel would be prepared to address some of the issues

8 that have been raised. I'll let you all choose what you want

9 to address, but the ones I had some questions about are the

10 extensiveness of the Consent Decree compared to others, the

11 selection of the Monitor and how that will work, the issues

12 that have been raised about juvenile prosecution, and the

13 occupancy permit issue that was raised, and then the issue

14 about the outreach efforts that's been raised several times

15 related to the meetings. Those are just a few. I may have

16 other questions, but I think if you all -- when you sum up at

17 the end, if the lawyers would be prepared to just tell me -­

18 I'm not asking for briefs or long arguments. I'm just asking

19 for you to briefly respond to the extent either side has a

20 response to any of those comments that have been made one way

21 or another.

22

So court will be in recess until 1:30.

23

(Court recessed for lunch from 12:33 p.m. until 1:31p.m.)

24

THE COURT: All right. Resuming with the hearing,

25 and we're ready for the next person who wished to comment,

1 Mr. Steven Hoffmann.

4/19/2016 Motion Hearing
 115

2

MR. STEVEN HOFFMANN: Thank you, Your Honor. My name

3 is Steven Hoffmann, H-O-F-F-M-A-N-N, and I live in St. Louis

4 City.

5

Presently, the same person, Ms. Stephanie Karr,

6 serves as both the Municipal Prosecutor and as the City

7 Attorney in Ferguson. Ms. Karr is advising the City on the

8 Consent Decree at the same time that she's responsible for

9 allowing the bad practices that necessitated the Consent

10 Decree in the first place. Her law firm, Curtis, Heinz,

11 Garrett & O'Keefe, are some of the main operators of what I

12 call the municipal scam, a program to bilk poor defendants out

13 of money through for-profit policing and for-profit

14 prosecution. These are not only the people who operate these

15 cities; they're the judges too. You wonder whose interests

16 are being served as these lawyers advise the City of Ferguson

17 on what to do here.

18

Ms. Karr has already lost her reputation. Here's a

19 list of stories that have appeared nationally:

20

"'Karr-uption' comes under fire in Ferguson."

21

"Ferguson Prosecutor Accused of Misconduct is Still

22 Crusading Against Ferguson Arrestees."

23

"Last desperado standing in Ferguson Municipal

24 Court."

25

The first thing mentioned in the DOJ's report about

4/19/2016 Motion Hearing

116 1
 the way municipal prosecutions happen in Ferguson is, quote,


2
 "attempts to raise legal claims are met with retaliatory


3
 conduct." That's certainly the case of Ms. De Mian who spoke,


4
 and it's true of many others.


5


A white man who sits on the Board of Directors of the


6
 National Lawyers Guild local chapter gave a declaration to the


7
 ACLU that was filed with Judge Ross in a case regarding


8
 interference with recording law enforcement activities. As


9
 soon as this gentleman brought facts before the District


10
 Court, Ms. Karr filed charges against him. The Circuit Court


11
 twice ordered Ms. Karr to turn over discovery. It was never


12
 produced, but on the eve of that discovery -- that it was due,


13
 she withdrew the case and filed three new charges. A


14
 technique to delay that cost the defendant in time and money.


15


The Consent Decree says that the City will develop


16
 and implement policies to ensure that the Ferguson Municipal


17
 Court operates impartially, independently from the City


18
 Prosecutor and in a manner that eliminates existing and


19
 potential unlawful conflicts of interest. Will this even be


20
 possible with Ms. Karr overseeing the system?


21


I appreciate Mr. Webb's attempts in representing -­

22
 well, who? Who is he representing? Is he representing the


23
 interests of the people of Ferguson and their elected council,


24
 or is he representing Ms. Karr, who is manipulating and


25 exploiting the City for her personal gain? The Court needs to


1 consider her conflict of interest.

4/19/2016 Motion Hearing
 117

2

Secondly, I'm concerned that the federal government's

3 investigation and this subsequent attempt at voluntary

4 compliance reduces a problem that infects our entire region

5 into a supposed isolated event in a single municipality.

6 Numerous community members begged the Justice Department to

7 expand their investigation to include St. Louis County and

8 St. Louis City, to no avail. The gross abuses of basic rights

9 of community members to participate in public protests,

10 demonstrations, and First Amendment activities in Ferguson

11 took place in concert under the direction of the Ferguson

12 Police Department, the St. Louis County Police, and the

13 St. Louis Metropolitan Police Department, and other agencies.

14 The only relief to the public came when this Court intervened

15 in their unconstitutional practices.

16

After the killing of Michael Brown by police officer

17 Darren Wilson, local authorities had one goal for dealing with

18 protesters -- to shut them up, to shut them down, to drive

19 them out, and to silence their speech. Before Judge Jackson,

20 a lawyer for the Unified Command said, "We never violated

21 anybody's rights," a claim that would be laughable if it were

22 not so disturbingly sinister. On the other hand, a St. Louis

23 University law professor identified thousands of unaddressed

24 civil rights violations that occurred during the time period.

25

For those of us who watch closely what's happening in

4/19/2016 Motion Hearing

118
 1
 our region, it's hard to know how the same problems that we


2
 found in Ferguson could not be applied to St. Louis County and


3
 to all of the other region's municipalities. After these


4
 protests started, a local attorney approached the FBI to ask


5
 who we would go to to make complaints about what we saw


6
 happening by law enforcement when they broke the law, and they


7
 were told that we should make these complaints with our local


8
 police department. I urge the Justice Department to continue


9
 to look at the entire region.


10


THE COURT: Thank you.


11


Keith Rose.


12


MR. KEITH ROSE: Thank you, Your Honor. My name is


13
 Keith Rose, and I'm a resident of Madison County, Illinois. I


14
 was motivated as a nonresident to become active in Ferguson


15
 after my own experiences with police abuse.


16


THE COURT: Excuse me a second.


17


Erica, can you turn down the volume? It's really -­

18
 yeah.


19


Okay. Go ahead.


20


MR. KEITH ROSE: Yes, ma'am.


21


Like many victims of Ferguson's police, my story was


22
 never told to the DOJ, both because I would not discuss my


23
 case before it had gone to trial and because it was a painful


24
 and personal story that I didn't trust with any


25 representatives of another governmental agency.


4/19/2016 Motion Hearing


119

1


I went to Ferguson on August 11th, 2014, the third


2
 day of protests, to attend a prayer vigil for peace. While


3
 leaving, my friend and I were randomly arrested from off of


4
 the sidewalk. At my trial, just last week, some 20 months


5
 later, the Ferguson prosecutor admitted that they still don't


6
 know who arrested me but that the mere fact that I had been


7
 arrested was evidence enough that the judge could make a


8
 reasonable inference that I had committed a crime.


9


When I was arrested, I was held for 24 hours in the


10
 Ferguson jail. While there, I had petit mal seizures as


11
 symptoms of my epilepsy. A Ferguson corrections officer


12
 decided that to make me stop he should beat my lower back


13
 twice with his baton. When I later tried to complain to


14
 another officer, that officer's response to me was, quote, "I


15
 bet you liked it, faggot."


16


Your Honor, my experiences motivated me to become a


17
 coordinator of the National Lawyers Guild's Legal Observer


18
 Program. As a Legal Observer, I have witnessed some of the


19
 most extreme events in the police's war on protestors and


20
 journalists. Your Honor, those of us who have experienced


21
 Ferguson's abuses directly are highly skeptical of the City's


22
 earnestness in implementing this Consent Decree.


23


I understand that you cannot unilaterally amend the


24
 settlement. So if you do not send it back for revision with


25 true community input, please keep in mind that -- please keep


4/19/2016 Motion Hearing

120 1 in mind Ferguson's recent efforts to fight against any and all

2 reforms.

3

I ask that the Court require that the independent

4 Monitor be strict in enforcing the provisions of the Consent

5 Decree and that the Monitor actively seek further community

6 input on all future decisions. Additionally, I ask that Your

7 Honor keep close watch over this case and require the Monitor

8 and parties to keep the Court abreast of all future

9 developments.

10

Additionally, I'd like to add that this morning,

11 while we were in this chamber, speaking on this topic that was

12 started with a police shooting here in our area, the St. Louis

13 Metropolitan Police Department have killed yet another black

14 man in the streets of St. Louis. Right now, the police are

15 coming up with their story of what happened and they're

16 investigating it, and the community won't trust the outcome

17 because we've seen this story played out time and time again.

18

I ask that Your Honor expand the investigations into

19 Ferguson to include the entire St. Louis region. This is a

20 regional problem, and it needs a regional solution. We have

21 dozens of municipalities, and solving the problem in one isn't

22 going to solve the problem for people every day who pass back

23 and forth through these porous borders.

24

So while we go out of here and we are faced once

25 again with another death at the hands of the police, I hope

4/19/2016 Motion Hearing

121 1 that Your Honor will listen to the community's appeal for

2 change and that these things be expanded to include the entire

3 St. Louis region because every citizen in St. Louis deserves

4 change.

5

THE COURT: Thank you.

6

All right. Joe McAllister.

7

MR. JOSEPH MCALLISTER: Thank you, Your Honor.

8

My name is Joseph, and I'm a 39-year resident of the

9 city of Ferguson, and I witnessed this entire situation, and I

10 had a meeting with the Department of -- DOJ at the Corner

11 Coffee House, where we were promptly surrounded by a bunch of

12 demonstrators to intimidate us out of that particular meeting,

13 but we proceeded on as well.

14

I'd like to address the untold costs. Where the DOJ

15 enacts a penalty phase against the City of Ferguson, should it

16 not also, under its mission, equally penalize other cities

17 throughout the world, throughout the United States, as well as

18 municipalities that are nearby -- such as Chicago; Baltimore;

19 Montgomery; Charlotte; Cleveland; Marksville; Catskill, New

20 York; Burlington, Vermont; Kern County, California -- because

21 the Department of Justice's mission is to enforce law, defend,

22 ensure public safety, prevent and control crime, and ensure

23 fair and impartial administrative justice for all Americans.

24

By enacting a penalty that could not be paid by

25 myself or my community, how is that fair and impartial? By

4/19/2016 Motion Hearing

122 1 having a penalty that will cause my community to no longer

2 adequately staff and protect my family, my neighbors in the

3 area, is that equitable distribution of justice?

4

In short, I'm an American not deserving penalty

5 because I've never attacked any policeman nor have I looted,

6 rioted, or violated the property of others within my

7 community. I haven't intentionally attacked anyone within my

8 community or others, and yet I have to pay a penalty. I have

9 to pay the ongoing costs, including these proceedings.

10 Through my possibly increased taxes, devalued property, and

11 the inability to sell my property from here on, I'm now held

12 captive by this penalty, by the ensuing situation. And people

13 foreseeably in the future will lose their jobs, incomes

14 because our community cannot afford to maintain or increase

15 staffing.

16

In essence, this penalty has violated the mission, my

17 rights and demonstrated disregard for the needs of all

18 citizens within our community. It breaks the law that it was

19 sworn to uphold equally for all Americans by demonstrating a

20 bias against a specific community and being manipulated to use

21 us as an example and scapegoat, by possible future bankruption

22 of our community that prior to this was viable and thriving,

23 with a penalty that knowingly the department devises as a

24 means to satisfy the anger of others, many of whom do not even

25 live within our community.

4/19/2016 Motion Hearing


123

1

Thank you, Your Honor.

2

THE COURT: Thank you.

3

Cassandra Butler.

4

MS. CASSANDRA BUTLER: Good afternoon. My name is

5 Dr. Cassandra Butler, and I have been a resident of Ferguson

6 since 1980. I am a political science with an emphasis in

7 public policy. Thank you for allowing me, the public, to have

8 our voices heard regarding the Consent Decree.

9

I attended my neighborhood association meeting in

10 September 2014, the month following Michael Brown's killing.

11 At this meeting, our regularly assigned police officer, while

12 discussing policing in Ferguson, freely admitted that there

13 was one thing that the Ferguson Police Department did that he

14 didn't think was right -- the practice of piling on tickets.

15

As he said this, I immediately thought of one earlier

16 morning about 15 years earlier when my son was home from

17 college for the summer and he was given four or five tickets

18 in our driveway. He committed one offense, a rolling stop at

19 January and Dade, and the additional tickets alluded to he was

20 trying to evade the police, when actually the only other thing

21 my son did was to park his car at home because he was only an

22 eighth of a mile from home when he ran the stop sign. So I

23 was puzzled, but about a week later, I was calm enough to call

24 the police officer because I was puzzled, and I asked him,

25 "Well, did my son disrespect you in any kind of way?"

4/19/2016 Motion Hearing


124

1

And he said, "No, he didn't. He was perfectly

2 courteous."

3

So to hear this officer in this neighborhood

4 association meeting say he disagreed with piling on tickets -­

5 15 years later -- indicated to me that this was a police

6 custom, it was a known thing, and it made him uncomfortable,

7 but it still occurs.

8

Also, during this time, as many news agencies were

9 doing stories on my police department, I was appalled at the

10 apparent lack of integrity in the operating systems of the

11 department. The police report -- quote, unquote -- obtained

12 by these news agencies was a source of embarrassment to me.

13

And our apparent lackadaisical attitude about citizen

14 complaints showed gross mismanagement of the public's trust,

15 my trust. To any public organization given the type of powers

16 by the public that the policing agencies are given, much is

17 expected from them in terms of responsibility. Our police

18 department was falling very short of this expectation. It was

19 evident that our city needed to drastically improve the

20 execution of this responsibility.

21

There are some provisions of the Consent Decree that

22 provide a living, organic improvement process. I along with

23 the Ferguson Collaboration Group would like to publicly

24 support these provisions. These important provisions provide

25 a feedback loop that allow this process to take place in a

4/19/2016 Motion Hearing

125 1
 continually learning format. The basis of this feedback loop


2
 is actually capturing data and analyzing it. The type of data


3
 collection and analysis provided for in the Consent Decree


4
 include pedestrian investigatory stops; auditing officer


5
 stops; search, citation, and arrest documentation; use of


6
 force incidents; misconduct complaints. It is important that


7
 the Consent Decree spell out that in addition to typical


8
 analysis, this data should specifically check for disparate


9
 impact among various citizen groups.


10


Another important aspect of the Consent Decree that


11
 supports this feedback loop for continuous improvement is the


12
 training and evaluation section. Shifting the emphasis to


13
 problem-orientation policing and the development of a


14
 community mediation program can help give the department


15
 much-needed focus, leading to a more efficient use of their


16
 talents. Performance evaluations and promotions must be tied


17
 to the behavior we want exhibited. These include community


18
 policing and problem solving, bias-free policing, and


19
 evaluation of records of stops.


20


Additionally, we support the following provisions -­

21
 employment of an early intervention system, requiring police


22
 officers to report misconduct, First Amendment protections, a


23
 policy for use of force, and closing that escape pod that the


24
 Consent Decree should be applicable to any entity providing


25 policing service to my community in Ferguson.


1


Thank you.


4/19/2016 Motion Hearing
 126

2


THE COURT: Thank you.


3


Christopher Phillips.


4


MR. CHRISTOPHER PHILLIPS:
 I'm going to spit my gum


5
 out real quick.


6


THE COURT: I'm sorry?


7


MR. CHRISTOPHER PHILLIPS:
 I had to spit my gum out.


8
 Sorry.


9


Thank you for taking this time to listen to what we


10
 have to say. My name is Christopher Phillips. I'm a film


11
 maker, the principal of Maverick Media Group, LLC, which is a


12
 Missouri limited liability company, and I'm a resident of


13
 Ferguson, and I live specifically in Canfield, where Michael


14
 Brown was killed.


15


So this -- I've lived there for about 10 years. So


16
 all of these systemic issues that have occurred, I've seen


17
 them firsthand, I've been subjected to them firsthand, and so


18
 I know better than anybody how it -- the effect that it can


19
 have. You know, I've had everything from being stopped


20
 walking to the grocery store, you know, being tailed to the


21
 highway. I also work at Webster University, in the School of


22
 Communications. Being followed anytime I had a new car, you


23
 know, temp tags. And that just kind of -- that harassment and


24
 intimidation is really unacceptable.


25

And one of the common sentiments that I'm hearing


4/19/2016 Motion Hearing

127 1 today from people is -- it's very clear to me because it shows

2 the polarization that's going on. I'm seeing a consistency in

3 people that are not in the area which I live, which is off of

4 West Florissant where, you know, you see the lack of resources

5 in the community. You also see a lot -- the majority of the

6 intimidation from the police.

7

And really, by being there, you know, I'm coming

8 home; I'm knowing nothing has changed. You know, there is no

9 community engagement. I saw when the cameras left, you know,

10 the deliberate attempts by the police to, you know, come into

11 the neighborhood for about a week, and then as soon as the

12 cameras left, they were gone. I'm noticing that the return of

13 the police is -- is the same. You know, they're staking out

14 the same corners. You know, they're still tailing people.

15 You know, the stops have consistently happened.

16

And so, you know, I find it kind of funny here that a

17 lot of the people that are speaking here -- primarily white or

18 Caucasian -- not all, but most of them, the ones that are

19 saying that they don't think there is a problem -- well, of

20 course they don't think it's a problem because they're not the

21 ones being racially profiled. They're not the ones that have

22 to go through these kinds of issues. They don't face these

23 things.

24

And so when I'm looking at -- you know, as a film

25 maker, filming since August 9th, 2014, I'm blessed with the

4/19/2016 Motion Hearing

128 1
 opportunity to have a deal with CNN Films. So I'm working on


2
 a feature, and throughout my coverage, I've been at the


3
 community meetings. I've been to Baltimore. I've been to New


4
 York. When those issues happened, I've -- you know, half of


5
 these people in this room, I know them, you know, just in the


6
 course of my filming, and I'm noticing how it shows that they


7
 don't really want true change because I'm noticing that, you


8
 know, you have -- why does it have to take people to shut down


9
 highways and disrupt community, like city council meetings,


10
 just to get them to do what's right in the first place?


11
 That's a big indicator of really their true intentions.


12


I saw that there was a woman that had a majority vote


13
 in city council, and it took the public to speak up about that


14
 just to get this woman on. You know, I saw how in the Urban


15
 League they have a community development center right at the


16
 heart, that QuikTrip that burned down. This man wasn't even


17
 present for that groundbreaking. You know, the lack of


18
 involvement there, it's clear.


19


Six months to the day he was killed, I was arrested,


20
 like this young lady in the wheelchair right here. My


21
 livelihood, my camera that I paid $20,000 for out of my own


22
 money, was damaged in the process. The car was just, you


23
 know, practically destroyed while I was in holding, and it was


24
 by the Ferguson Police Department. And that case carried on


25 11 months and 12 days just for us to walk in the courtroom and


4/19/2016 Motion Hearing

129 1
 be dismissed after 60 seconds. And I look at these things.


2
 Even though they had my footage, other people's footage, you


3
 know, why did they drag this out for so long?


4


And I'm looking at it as a whole. They don't want


5
 true change. And if the City gets sued, so be it, you know,


6
 because the thing that I look at, like with the course of my


7
 film work, is this has to be a statement. This has to say


8
 something through the course of time. It has to be timeless.


9


And I look at, you know, the Department of Justice,


10
 their responsibility. We don't know who's going to enforce


11
 this, the oversight. We don't know who's going to pick these


12
 people that are going to oversee these implementations and


13
 these changes. And when I look at that, the only thing that


14
 we really can do is to ensure that there's a statement made


15
 with all of this.


16


Of course, some of the things that are in the decree


17
 are okay and they're good, but then there's a lot of


18
 loopholes, and so, you know, for me, I'm looking at it as


19
 we're really -- we have to think about the next generation of


20
 children that are coming up because 10, 20 years from now, we


21
 don't know who's going to be in those roles. So we have to


22
 make sure that whatever changes are made, whatever has to be


23
 done makes a stamp that's timeless, and so people down the


24
 road, they get that. You know, we can't allow these things to


25 happen anymore. So thank you.


4/19/2016 Motion Hearing


130

1

THE COURT: Thank you.

2

MR. CHRISTOPHER PHILLIPS: Uh-huh.

3

THE COURT: Glenda Rickard.

4

MS. GLENDA RICKARD: Thank you, Your Honor.

5

My name is Glenda Rickard, and I'm a lifelong

6 resident of Ferguson for 61 years. I have seen all the

7 changes through the years happening, and everything that's

8 happened in the last two years is beyond comprehension that

9 that has happened in my small town.

10

I have been the leader of my neighborhood association

11 for the last eight or nine years, and I know through working

12 with that that we have tried very hard to get the black

13 residents in our community to become more involved, and almost

14 coming down to pleading with them to attend the neighborhood

15 association meetings, to take over leadership roles, and it

16 has been slowly happening. We're getting a lot more

17 involvement. But this has been over the last eight years I

18 know of and much earlier than that that we have had these

19 vehicles for the black residents to come to, to voice their

20 concerns, complaints, and grievances, and at all these

21 meetings -- not only the neighborhood association meetings.

22 We have City Council meetings every month. We have

23 Neighborhood Watch meetings every month. And at all of these

24 meetings, we have police representation and a time for these

25 concerns, questions, and grievances to come forth. And I know

4/19/2016 Motion Hearing

131 1
 I'm probably naïve because I don't live the life and have the


2
 experiences of all my black neighbors, but I have not heard


3
 any of these problems, these things happening in the last two


4
 years of being a problem. Now that it's come up, I know that


5
 the City Council is working very diligently and had already


6
 started to put things in process to help the racial equality


7
 and the problems that we're having in our police department.


8


My main concern of this fairness issue is that


9
 everybody on the council that I am aware of does not disagree


10
 with what is in it; it is the matter of the cost. And the


11
 only reason that I know of at first that it wasn't passed or


12
 we didn't want it to pass as it was wasn't because of what was


13
 in it; it was because we felt it was going to bankrupt


14
 Ferguson. And that hurts me very deeply because I've lived


15
 there my whole life.


16


I still do not understand why our black community has


17
 not used these other vehicles to come forward and voice these


18
 problems instead of, all of a sudden, after this problem with


19
 Darren Wilson and Michael Brown, all of this came up, and it


20
 was shocking to most of us that this even was happening


21
 because none of these issues had never been brought forward in


22
 any of these other meetings. And even the DOJ did not indict


23
 Darren Wilson, but yet this whole thing came up because of it,


24
 and lot of the things that were said, the "Hands up, don't


25 shoot" -- even though I believe it does -- it did happen in


4/19/2016 Motion Hearing

132 1
 other parts of the United States, like Chicago and different


2
 places that we've seen horrific things, that was not the case


3
 with this particular situation, but Ferguson has been thrown


4
 under the bus by the whole nation.


5


Every time you hear the word "Ferguson" on TV,


6
 whether it's the presidential debates -- it's now mentioned in


7
 movies -- it's all a very negative standpoint, and I just wish


8
 that the DOJ would help support small town St. Louis;


9
 Ferguson, Missouri; our little town. Even though we know we


10
 have a long way to go as far as race relations, something has


11
 to be done to not throw us under the bus, to show us in a more


12
 positive way.


13


And I know that the City Council is working very


14
 hard, and a lot of people don't understand. Our mayor, Mayor


15
 Knowles, has been working so hard to help bring Ferguson


16
 forward, and they don't understand that he does not get paid


17
 the kind of money they think he does to do this. He's mostly


18
 a volunteer. And the other City Council people don't get paid


19
 that much either. They're all just trying to help Ferguson


20
 and the people in its community. They need to get more


21
 involved and help support these people and the leaders in our


22
 community and see that they're not as bad as they're making


23
 them out to be. They're there to help us.


24


And I just hope that what comes out of this is we get


25 enough -- we don't become bankrupt over it. Our council wants


4/19/2016 Motion Hearing

133 1 to make these improvements, and I just think as a citizenship,

2 black and white, we just all need to come together and work

3 together to get these things done.

4

Thank you.

5

THE COURT: Thank you.

6

All right. That concludes the statements from people

7 who had signed up this morning to speak, and so I will now

8 hear from the attorneys. Once again, since it is the

9 Plaintiff's lawsuit, I'll hear from the Department of Justice

10 first. So Ms. Lopez.

11

MS. LOPEZ: Thank you, Your Honor.

12

Christy Lopez for the United States. I'd like to

13 thank you, Your Honor, for opening up your courtroom today to

14 hear from everybody and for granting the parties' request that

15 they be heard.

16

We'd also like to thank everyone here for taking the

17 time out of their busy days to be here, to take the time to

18 submit written comments prior to this day, and to be here

19 today. This level of engagement from individuals with such a

20 diverse set of perspectives has been incredibly important

21 throughout the investigation of this case, through the

22 negotiation of the Consent Decree, and it's going to be at

23 least as important during the implementation of this decree

24 should the Court agree to enter it.

25

While we disagree with Mr. Webb about whether there

4/19/2016 Motion Hearing

134 1
 was a pattern or practice of unlawful conduct and have a high


2
 degree of certainty that had we tried this case we would have


3
 prevailed across the board, we recognize that we're not here


4
 today to have that conversation. Rather, our job is to


5
 persuade the Court that this agreement is fair, adequate, and


6
 reasonable so the hard work of bringing about police reform in


7
 Ferguson can begin in earnest.


8


I'd like to address some of the points that have been


9
 brought to the Court's attention both in the comments today


10
 and in the written submissions, both to provide the Court our


11
 perspective on why we believe that the Consent Decree is fair,


12
 adequate, and reasonable notwithstanding these concerns, and I


13
 hope to allay, at least a little bit, some of the concerns


14
 that have been raised today and in the written submissions.


15
 Although, of course, as Mr. Volek noted at the beginning, this


16
 was a negotiated agreement, and I doubt there's anybody that


17
 was involved who got everything they wanted or who thinks it's


18
 a perfect agreement.


19


We've been paying very close attention to the


20
 comments that we've heard today. We paid very close attention


21
 to the written submissions that were submitted to the Court,


22
 and we will continue to do so during the implementation of the


23
 Consent Decree. These insights and perspectives are going to


24
 be incredibly important as the parties go about the process of


25 developing and implementing policies, of developing and


4/19/2016 Motion Hearing

135 1 implementing training and accountability mechanisms.

2

And in fact, we've recently added two new staff

3 persons to this case. They're community outreach specialists,

4 and the reason why we -- they're actually here today, Your

5 Honor, and the reason why we've done that is because we remain

6 committed and we remain in recognition of how important it's

7 going to be moving forward to continue to have dialogues with

8 people throughout the city of Ferguson and those affected by

9 the Ferguson Police Department as we implement this agreement.

10

I'm going to try to group some of the comments into

11 general areas of concern and address them in conjunction with

12 each other. The first area I'd like to address is the issue

13 of transparency and community engagement. There has been a

14 significant amount of commentary about the fact that community

15 members were not at the negotiating table with the parties.

16 On this, I think the comments expressed here today reflect

17 there is a broad spectrum of views on what should be included,

18 what should have been included in the Consent Decree, and the

19 United States came to the conclusion that the best way to

20 reach a strong agreement to reform the Ferguson Police

21 Department and the court system was to engage in bilateral

22 negotiations with the City of Ferguson. We recognize the

23 tension of that decision with our very real desire for

24 transparency, but we did not think it would be effective to

25 open negotiations of the Consent Decree more broadly. So

4/19/2016 Motion Hearing

136 1 instead we worked hard to create avenues for community members

2 and groups to provide their ideas for reform, and Mr. Volek

3 set out many of these efforts this morning, and you've

4 heard -- you've heard a little bit about those from the

5 commenters today.

6

The community input is reflected throughout the

7 agreement, both generally and in specific recommendations -­

8 everything from the need for far greater interaction between

9 police and historically disenfranchised groups, the importance

10 of listening to youth voices, the nature of the municipal

11 court reform that we sought. And myriad other parts of the

12 agreement are just imbued with and informed by the

13 conversations we had with community members of all

14 perspectives throughout the negotiation process.

15

There's also concern about the transparency of the

16 agreement and community engagement moving forward. The whole

17 agreement is, as I've just mentioned, geared toward

18 transparency and public disclosure, from the complaint process

19 to body-worn cameras to the requirement that the City makes

20 information about police and court activity available on its

21 website, the fact that the Monitor's reports will be filed

22 with the Court and be public, and countless other provisions.

23

I want to be clear, Your Honor, that the agreement

24 does not place any new restrictions on the public availability

25 of now existing information. No existing information that is

4/19/2016 Motion Hearing

137 1 public becomes nonpublic pursuant to this agreement, and a lot

2 of information that was not public will now be public pursuant

3 to this agreement.

4

But the Monitor is granted extraordinary access to

5 City information, information that is attorney-client

6 privileged, information that is in criminal files, information

7 about crime victims and persons accused of committing crimes.

8 This information has personally identifiable data, and it

9 would not be made available to the public generally, and we

10 don't want it to be deemed to then be publicly available

11 because it has been provided to the Monitor.

12

The Consent Decree also creates myriad opportunities

13 for community engagement, and related to your request that we

14 address outreach efforts, the agreement recognizes that the

15 City must make particular effort to reach out to people who

16 previously have not been tied into community leadership and

17 community life, and so I just want to run through a few of

18 those, of the provisions that the agreement includes that

19 address this.

20

The Neighborhood Policing Steering Committee is, of

21 course, a means of involving members of the community into

22 establishing police priorities and tactics, and we were

23 careful to include language in those requirements that

24 require, quote, "a diverse and broadly representative set of

25 members of the Ferguson community."

4/19/2016 Motion Hearing


138


1


The Civilian Review Board. We require in paragraph


2
 404 that the CRB select members who are, quote,


3
 "representative of all areas and groups within the city." And


4
 paragraph 410 requires that the Monitor develop protocols to


5
 assess whether the CRB is in fact representative of the


6
 broader Ferguson community by reflecting the racial, ethnic,


7
 geographic, and housing diversity of the area.


8


There's a Training Committee involved, required by


9
 the agreement. That Training Committee is going to actually


10
 determine what the training needs of the Ferguson Police


11
 Department are. That includes community involvement.


12


There are requirements for greatly increased


13
 interaction between FPD officers and community members. You


14
 heard today, I believe it was, Robert Wells talk about a


15
 community meeting that he held where a community member told


16
 him that she had never before had the opportunity to talk with


17
 a police officer. We want to create lots of opportunities for


18
 people -­

19


THE COURT: I believe that one he was talking about


20
 happened in Illinois. So that's not one that happened here,


21
 right?


22


MS. LOPEZ: Okay. That may be right, Your Honor. I


23
 apologize. I thought it was something he held here a few


24
 days -- a few weeks before the Michael Brown shooting, but I


25 could be -- I could be wrong.


4/19/2016 Motion Hearing


139

1


In any event, we did find in our findings report a


2
 need for far greater opportunities for officers to have


3
 positive interactions with community members, and we built


4
 that into -- those requirements -- into our Consent Decree.


5
 The Consent Decree requires small group dialogues between


6
 police and community members and groups that, quote, "have an


7
 emphasis on members and groups who previously have not had


8
 strong or positive relationships with FPD and the City."


9


The Consent Decree requires the creation of the


10
 Ferguson -- and the continuation of a Ferguson Youth


11
 Initiative and other programs to create opportunities to


12
 positive police-youth interactions.


13


The agreement requires the creation of the Ferguson


14
 Youth Advisory Board, the -- an apartment neighborhood group


15
 to address the -- ensure that the perspectives of people


16
 living in apartment buildings are reflected.


17


It requires a community mediation program that will


18
 allow individuals to resolve their problems with each other


19
 and get to know each other as community members a little more.


20


The training requires -- the training that is


21
 required under this agreement requires that police be trained


22
 on, quote, "how to establish formal partnerships and actively


23
 engage community organizations and diverse groups within the


24
 community to form positive relationships."


25

And the agreement requires the mediation of police


4/19/2016 Motion Hearing

140 1 complaints, which I believe one of the submissions talked

2 about how successful that program has been in New Orleans, and

3 we hope that we'll have similar success here of really helping

4 police officers and community members have the opportunity to

5 speak with each other and gain a better understanding of each

6 other's perspectives.

7

There have also been questions raised today about how

8 the community will be involved in the selection and work of

9 the Monitor. The Monitor will be filing public reports with

10 this Court every six months if the Court enters this

11 agreement. The reports, among other things, will include the

12 methodology and specific findings for each review and audit

13 conducted by the Monitor. So the Monitor -- the community

14 groups will have, you know, insights into that part of the

15 Monitor's work. The Monitor is also required by the agreement

16 to routinely communicate with a broad spectrum of community

17 stakeholders.

18

Your Honor, some commenters today and in the

19 submissions have asked that the parties release the names of

20 Monitor applicants so that community members can interview

21 them, research them as well. We have done this in previous

22 cases, Your Honor, and we would not object to doing so here.

23

THE COURT: Well, how is that process going to work?

24

MS. LOPEZ: The parties are still -- we haven't -- we

25 have not determined exactly how we're going to select the

4/19/2016 Motion Hearing

141 1
 Monitor. So we don't -- I don't have a specific answer for


2
 you about the Monitor selection. But is your question how the


3
 process of making those names available would work?


4


THE COURT: Well, I wondered generally what you -­

5
 you're saying you're not objecting to doing that. That sounds


6
 like a new procedure that you hadn't contemplated. So I


7
 wondered what procedures you had contemplated.


8


MS. LOPEZ: Yeah. No. It's not that we hadn't


9
 contemplated, Your Honor. We just haven't finalized how that


10
 selection process will be done. We have actually done that in


11
 other jurisdictions. So it's something we could do here.


12


THE COURT: And the Consent Decree requires the Court


13
 to approve the selection of the Monitor. How do you


14
 anticipate presenting that to the Court for approval?


15


MS. LOPEZ: The parties would, hopefully, be able to


16
 agree on somebody that we would like the Court to approve, and


17
 we would submit that name to the Court, and the Court could


18
 have whatever process you desire to -- you could interview the


19
 person. You could have an open hearing. Different judges


20
 have done it different ways, and then you would select or not


21
 select that person.


22


THE COURT: And so when you -- the -- the reference


23
 to the Monitor, as you've just referred to it, is a person


24
 versus a team? It seems to me that it sort of goes -- looks


25 like both things when you read the decree. What is your


4/19/2016 Motion Hearing

142 1 contemplation about whether this is a person or a team of

2 people?

3

MS. LOPEZ: The Monitor is generally a monitoring

4 team. Sometimes, there will be a primary Monitor named as the

5 Monitor among the team, but we recommend and have always

6 sought -- so a monitoring team with interdisciplinary skills.

7

THE COURT: All right.

8

MS. LOPEZ: The second set of comments I would frame

9 is going to whether our investigation was fair and unbiased.

10 Our investigation and the subsequent negotiations were carried

11 out by career staff with the Department of Justice, Civil

12 Rights Division, who are tasked with enforcing 42 U.S.C. §

13 14141, the statute that requires us to investigate and seek to

14 eliminate patterns or practice of police conduct that violates

15 the Constitution or other federal law. We take this

16 responsibility very seriously, just as we take our

17 responsibility to act ethically and with integrity very

18 seriously.

19

Pursuant to these responsibilities, we investigated

20 the Ferguson Police Department, and we set out the findings of

21 our investigation in a lengthy report. Our investigation was

22 fair, thorough, and amply supported by objective evidence.

23

Based on these findings and our responsibilities

24 under the -­

25

THE COURT: What do you all say to the people who say

4/19/2016 Motion Hearing

143 1
 that the Department of Justice did not want to hear and did


2
 not listen to anything that was positive or did not agree with


3
 the negative conclusions?


4


MS. LOPEZ: That's absolutely not the case. We


5
 listened to everybody. We had -- just as one small example of


6
 this, we had a hotline, and we received hundreds and hundreds


7
 of calls on this hotline. Many people called us simply to


8
 say, "We don't like what you're doing here. This is


9
 politically motivated. You shouldn't be here." Did not ask


10
 for a call back. We called back everybody, even if they


11
 didn't ask for a call back, even if they had nothing but


12
 negative to say. And you could sort of foreshadow what they


13
 were probably going to say when you called them back.


14


We wanted to hear from everybody during our


15
 investigation, and we have continued that. We have continued


16
 that level of engagement, without regard to person's


17
 perspectives, throughout the investigation and negotiations.


18
 We reached out to every single neighborhood association within


19
 Ferguson during the course of the investigation, and we met


20
 with every single neighborhood association that wanted to meet


21
 with us, that asked to meet with us. We -- at no time did


22
 anyone on our team -- I feel very confident in saying -- tell


23
 people that we didn't want to hear about negative -- you know,


24
 we wanted to hear nothing but negative information about the


25 police department. In fact, we always tell people we want to


4/19/2016 Motion Hearing

144 1
 hear about the positive parts of a police department because


2
 as we're developing remedies, we don't want to throw out the


3
 baby with the bath water. We want to make sure we hear about


4
 the good things a police department is doing.


5


Some of the comments targeted our colleagues from the


6
 Community Relations Service, which is another DOJ office. CRS


7
 has a very difficult task of facilitating dialogue in the


8
 community and working towards racial reconciliation. The


9
 pattern or practice investigation in Ferguson and the


10
 negotiation of the Consent Decree was conducted by the Civil


11
 Rights Division, not by the Community Relations Service.


12


I do want to note, Your Honor, that in addition to


13
 listening to Ferguson residents, Ferguson police officers, and


14
 individuals within Ferguson of all perspectives, we have and


15
 will continue to listen to nonresidents about Ferguson. Many


16
 of the civil rights violations that we found were committed


17
 against nonresidents. People who work in Ferguson, have


18
 family in Ferguson, were shopping in Ferguson, were exercising


19
 their First Amendment rights in Ferguson, or were just driving


20
 through Ferguson have been recipients of abusive citations,


21
 improper arrests or uses of force, spent time in Ferguson's


22
 jail. Their voices and experience are valid and worthy of


23
 consideration, and we will continue to listen to those voices.


24


There's a narrative, Your Honor, that holds that


25 those critical of police and court practices in Ferguson are


4/19/2016 Motion Hearing

145 1 outside agitators and that the real residents of Ferguson

2 support the police unequivocally and have no problems with law

3 enforcement. In the year and a half we've been investigating

4 and negotiating, we have found this narrative to be false. In

5 a year and a half of talking with Ferguson residents, we have

6 met residents who feel unheard or feel unfairly used by their

7 own city.

8

As Mildred Clines, a 28-year-old -- a 28-year

9 resident of Ferguson said when she spoke today, "We felt

10 helpless," and she was glad when people came from across the

11 country to support her and others in Ferguson who, for

12 decades, had felt like their voices and experiences didn't

13 matter.

14

To successfully implement this decree, we must get

15 past this "for us or against us" mentality and recognize it is

16 possible to genuinely support law enforcement while at the

17 same time insisting that police and courts treat people fairly

18 and lawfully.

19

As Dara Ashby put it so succinctly today, it's going

20 to take all of us together to make this happen.

21

Or as Francesca Griffin, one of the individuals who

22 submitted written comments, wrote, "I wish there was a way we

23 could press a button and make the community that is unaffected

24 by the unconstitutional policing be able to see and feel what

25 I feel in my life. We just want to be respected and treated

4/19/2016 Motion Hearing

146 1 as equals. We want our city to do right by us."

2

This agreement, Your Honor, has the support of many

3 Ferguson residents, residents whose voices have not previously

4 been heard, as well as the support of many who do not live in

5 Ferguson but who have legitimate reasons to seek

6 constitutional and nondiscriminatory policing. In any event,

7 the determination of whether a consent decree is fair,

8 adequate, and reasonable does not depend upon whether a

9 majority of people would vote for it.

10

Your Honor, there has been much said about the cost

11 of this Consent Decree being too high. In fact, so much so

12 that I don't think there's any need for me to rehash much of

13 that here today. I do think it's worthwhile to note, however,

14 that the biggest determinant of how much consent decrees cost

15 in the jurisdictions where we've been implementing them across

16 the country is how focused and energetic cities' efforts to

17 fully implement those agreements are. Where jurisdictions

18 resist implementation or do not act in good faith, agreements

19 last much longer and cost much more than when they get to work

20 immediately and work with the Department of Justice to

21 implement agreements.

22

The fourth set of comments really goes to whether the

23 agreement goes beyond what the Constitution requires or goes

24 generally too far. As Your Honor is, of course, aware, the

25 law makes clear that consent decrees can and should do more

4/19/2016 Motion Hearing

147 1
 than simply say, "Obey the law." They can and should address


2
 the causes of constitutional violations. Some commenters


3
 assert that the -- this Consent Decree goes too far in one


4
 respect or the other. One commenter, for example, says that


5
 the changes to Ferguson's occupancy permit systems have


6
 nothing to do with constitutional policing but, rather,


7
 reflect gratuitous social engineering. But the changes to the


8
 occupancy permit ordinance, like similar ordinance


9
 modifications in the Consent decree, have a very clear link to


10
 police misconduct. Violation of an occupancy permit -- the


11
 occupancy permit ordinance was changed not in the ways


12
 described earlier today but in very important ways that


13
 directly impact constitutional policing.


14


THE COURT: Yeah. That was among the ordinances that


15
 was provided as the Attachment A, and it looked to me like


16
 that ordinance has already been changed. Is that correct?


17


MS. LOPEZ: Yes, Your Honor.


18


THE COURT: Okay.


19


MS. LOPEZ: It was modified in a couple of ways.


20
 One, it was modified to make clear that you do not need to


21
 revise your occupancy permit every time certain family members


22
 and domestic partners move in with you. This is consistent


23
 with case law that suggests that any limitations on occupancy


24
 must be reasonable or else they may run afoul of the right of


25 free association protected by the First Amendment.


4/19/2016 Motion Hearing


148

1

It was also modified to make violations of an

2 occupancy permit a nonarrestable offense. In other words, you

3 can't be arrested and taken to jail for violating your

4 occupancy permit.

5

These changes were in direct response to abuse we

6 found by the Ferguson Police Department of this ordinance and

7 that was causing very real harm. We document in the findings

8 letter, Your Honor, incidents in which women reported being

9 the victims of domestic violence at the hands of their

10 domestic partners only to be ticketed or arrested when the

11 responding officer concluded that someone not listed on the

12 occupancy permit was living in the residence. As reported in

13 the findings report, one women was arrested and jailed for an

14 occupancy permit violation after she called police to her home

15 to protect her from domestic violence. In another incident, a

16 Ferguson police officer reported in his police report that

17 after a domestic violence victim was issued a summons for an

18 occupancy permit violation, the woman said, quote, "she would

19 never call the police again, even if she were being killed."

20

The impact of this occupancy permit code combined

21 with other practices in the police department was clearly

22 having a very dangerous impact on police-civilian

23 relationships and impacting the civil rights of individuals.

24 We believe it's directly related to constitutional policing,

25 and so we acted accordingly.

4/19/2016 Motion Hearing


149

1


The reforms that are part of this agreement are not


2
 social engineering. They're not related to un -- to -­

3
 they're not unrelated to constitutional policing. They are


4
 thoughtful solution, reached after months of negotiation


5
 between the parties, to some very harmful practices by the


6
 City of Ferguson and the police department.


7


Other commenters have noted that there appear to be


8
 too many deadlines or that the deadlines are too aggressive.


9
 We simply wanted to note that we have -- there are more


10
 deadlines in this agreement than in some of our older


11
 agreements. We have found it very helpful to have interim


12
 deadlines to help jurisdictions stay on track as they're


13
 implementing decrees. We -- I can tell you that throughout


14
 negotiations, we've deferred to the City on deadlines. We


15
 never insisted that we have this deadline instead of that


16
 deadline. We asked them to think about what made sense to


17
 them. A lot of the very early deadlines are deadlines for


18
 things that are already well underway or have actually already


19
 been done, for example, the occupancy permit. Those changes


20
 to ordinances have to be done within 30 days of the agreement,


21
 but they've already been done except for, I believe, one.


22


We've also -­

23


THE COURT: So what about the comments that this


24
 is -- several people have commented this is a much more


25 extensive Consent Decree than has ever been done before.


4/19/2016 Motion Hearing


150

1


MS. LOPEZ: Yeah. I don't know if that's true, Your


2
 Honor. I think that would depend on the metrics you use to


3
 measure that. I do think it's extensive, and I think that's


4
 because the problems that we found in Ferguson were extensive


5
 and are extensive. I think it's important to note that we're


6
 addressing problems not only in the police department but also


7
 with the municipal court system, which is not a topic that's


8
 covered by some of our other agreements.


9


But perhaps more fundamentally, we've learned that to


10
 truly eliminate patterns or practices of misconduct you have


11
 to really be holistic in how you approach these problems, and


12
 you do -- and it does help to be very detailed in these


13
 agreements to avoid misunderstandings or disagreement. I'm


14
 sorry. It's important to be detailed in the agreement so that


15
 you avoid disagreement and misunderstandings down the line of


16
 what was meant or what is required by the agreement. That's


17
 the -- that's the primary reason why our agreements, more


18
 recent agreements, are more extensive and more detailed.


19


But as the Court has heard today, notwithstanding


20
 this amount of detail, many people think that the agreement


21
 should have been more detailed and should have included more


22
 things. So, again, it's trying to strike a balance, Your


23
 Honor, between providing enough on specificity and clarity so


24
 that we reduce problems down the road without trying to put


25 everything into one place, knowing that things will change and


4/19/2016 Motion Hearing

151 1
 you don't want things set in stone more than you need to have


2
 them set in stone.


3


And that brings me to the fifth category of comments,


4
 which is really that a lot of people believe that the


5
 provisions in this agreement are not strong enough and do not


6
 go far enough. I think that in reading through the comments


7
 and listening to comments today one thing that became clear to


8
 me is that a lot of the more specific language that people


9
 want to see -- want to have seen in the Consent Decree is


10
 actually more likely to be in the policies or the training


11
 that are going to come out of the Consent Decree. One example


12
 of this is the body-worn cameras. Much of what people were


13
 talking about today and in the written comments, we would


14
 agree with, but we believe that those requirements should be


15
 in the policies.


16


And I think it's important to keep in mind that all


17
 the policies and training will be approved by DOJ and the


18
 Monitor. So there is that check there, and if the parties


19
 don't -- if the parties disagree, then the Court would resolve


20
 that, but generally, in our agreements, we've been able to


21
 come to agreement on approval of the policies without court


22
 involvement, for the most part.


23


The same -- just one example from today. Somebody


24
 mentioned paragraph 359, which talks about how the municipal


25 courts interact with persons with mental illness or


4/19/2016 Motion Hearing

152 1
 intellectual or developmental disabilities. It is true it's


2
 only one sentence, but that one sentence requires the City to,


3
 quote, "implement appropriate mechanisms" for working with


4
 these defendants. That's a lot. It didn't necessarily -- it


5
 wasn't necessarily appropriate to put into a consent decree,


6
 but there will be much more than one sentence about how


7
 persons with mental illness or intellectual or developmental


8
 disabilities are treated in the Ferguson Municipal Court.


9


Even where the Consent Decree leaves the exact


10
 particulars of a particular area, such as body-worn cameras,


11
 for policy, what the Consent Decree is meant to do is to set


12
 out the overarching principles and guidelines so that there's


13
 a common understanding of how those, that policy and training,


14
 should be developed. And so, for example, the Monitor and DOJ


15
 are required to base their approval on whether the policies


16
 and training comport with the agreement, with best practices,


17
 and with the law, and then there are more specific guidelines


18
 for particular topics.


19


It is, of course, true that the agreement does not


20
 cover some of the recommendations made in written and spoken


21
 comments. We think many of those are good ideas. The


22
 agreement does not talk about minors being prosecuted in


23
 municipal court and not having the right to counsel. I


24
 believe that the City of Ferguson is going to talk a little


25 bit more about that. I will say that the agreement does


4/19/2016 Motion Hearing

153 1 require that the municipal court comport with all

2 constitutional or other legal requirements, and it also

3 requires that all trials be fair and conducted in accordance

4 with the Constitution. So to the extent that juveniles are -­

5 are in the municipal court, they would have the same rights as

6 everyone else, including any rights that would attend

7 specifically to juveniles.

8

And I think it's also important to note, Your Honor,

9 that, as some people have said today, the Consent Decree isn't

10 actually meant to do everything. It can't fix all -- all the

11 problems in Ferguson or the surrounding region. And so many

12 of the ideas that people have talked about today are really

13 important ideas, and we hope the people will continue their

14 efforts in those areas, but in our view, they may not have

15 been appropriate for the Consent Decree. And, of course, I

16 just want to go back to the fact, Your Honor, that many

17 things, we agree with, but we may not have gotten everything

18 that we wanted during negotiations.

19

A couple of people have noted that we should be doing

20 more and should be going after other municipalities or states

21 or police departments, and I would just note two things.

22 First is that the law does not require that if we -- that if

23 we can't do everything, we do nothing. We recognize that

24 there are other places with problems, and -- but that, of

25 course, doesn't prevent us from trying to correct the problems

4/19/2016 Motion Hearing

154 1 in places where we are. And second, I just wanted to note

2 that we actually do have a case against the St. Louis County

3 courts regarding their treatment of juveniles in the juvenile

4 court system there. So we're not -- we are actively working

5 on that issue.

6

Finally, Your Honor, there's -- the concern has been

7 expressed that the people responsible for implementing the

8 Consent Decree will not do so appropriately or in good faith.

9 There are a few examples given of this. Concerns that the

10 complaint process will not be adequate as long as it's

11 overseen by the same personnel. That the amnesty program

12 won't be effective because it allows the prosecutor to find

13 good cause to continue prosecution. Or that the Neighborhood

14 Policing Steering Committees might not include sufficient

15 outreach and involvement from residents to make them

16 effective. And I guess the fourth one is developing body

17 cameras. There are a lot of concerns about whether the people

18 who are there will be able to do that appropriately.

19

And I would say, Your Honor, that this is one of the

20 values of a Consent Decree. There will be a Monitor there.

21 This is -- it will be different now. There will be a Monitor

22 there to assess whether the City is implementing the agreement

23 appropriately, and if the police department or the City is not

24 appropriately implementing the agreement and not holding their

25 employees accountable for implementing the agreement or for

4/19/2016 Motion Hearing

155 1 following their own policies, the Court can hold them

2 accountable.

3

And I think these concerns are not -- you know, to

4 the contrary of it being reasons not to enter the agreement,

5 they're actually reasons to enter the agreement, to allow the

6 Court to have that sort of oversight. That's the entire

7 reason we are seeking a Court-ordered agreement rather than a

8 private memorandum of understanding, because we recognize the

9 value of having the Court's oversight and accountability

10 mechanisms in this case.

11

So, Your Honor, just two points in closing. One is

12 that while some of the commenters think the Consent Decree

13 goes too far and others think that it doesn't go far enough,

14 very few speakers argued that it shouldn't be entered at all,

15 and we agree that despite its many imperfections, it

16 definitely meets the legal standard of fair, adequate, and

17 reasonable. We think it's a feasible and a fair set of

18 remedies that will be effective at eliminating the conduct

19 that we found violates the Constitution, and we very much urge

20 the Court to enter the Consent Decree that the parties have

21 worked so hard to negotiate.

22

Secondly, Your Honor, we recognize that although our

23 investigation began a year and a half ago, in many ways, this

24 case is just beginning, and I want to assure this Court and

25 the City of Ferguson and the entire community that we as

4/19/2016 Motion Hearing

156 1
 individuals and, more importantly, the Department of Justice


2
 and the Civil Rights Division institutionally are committed to


3
 working closely with all stakeholders, including in particular


4
 the City of Ferguson, to fully implement the Consent Decree so


5
 that all people are treated fairly and lawfully by the


6
 Ferguson Police Department and the municipal court.


7


As we have said before, we want Ferguson to be known


8
 for how it responded to this crisis, how it came back stronger


9
 and more vibrant than ever and as a strong protector of all


10
 people's constitutional rights.


11


We know that notwithstanding all the hard work that


12
 the Department of Justice has put into this case already that


13
 the important work of -- the most important work of


14
 implementing the Consent Decree lies ahead of us, and we're


15
 eager to get started. So we respectfully request this Court


16
 enter the Consent Decree as an Order of this Court. Thank


17
 you, Your Honor.


18


THE COURT: Mr. Webb.


19


MR. WEBB: Yes, Your Honor. Thank you.


20


Your Honor, as I began, Mayor Knowles would like to


21
 briefly address the Court, just to address very briefly the


22
 issue of the commitment of the City of Ferguson to this decree


23
 and complying with the decree. Could I ask leave if I could


24
 ask him to -­

25

THE COURT: Yes, he may do so.


4/19/2016 Motion Hearing


157

1

MR. WEBB: Thank you.

2

MR. JAMES KNOWLES III: Thank you, Your Honor.

3

On behalf of the City of Ferguson and the citizens of

4 Ferguson, we respectfully request that you approve this

5 Consent Decree as ordered -- as so ordered by the Court.

6

In September of 2014, at our first City Council

7 meeting, the City Council of the City of Ferguson took very

8 seriously the issues that had arisen just one month before in

9 August of 2014. We began immediately looking at ourselves and

10 what we were doing right, what we were doing wrong, and what

11 we can do better. It was at that first City Council meeting

12 after the death of Michael Brown that we began to make changes

13 to our city ordinances, to our court system, to our police

14 practices. It was the first time that we began to propose

15 civilian oversight of our police department, fully five months

16 before the Department of Justice's report which outlined a

17 number of patterns and practices of unconstitutional behavior

18 in our city.

19

The City of Ferguson has been fully cooperative, both

20 with the Department of Justice. We do appreciate the

21 Department of Justice's efforts working with us. While we

22 have worked at arm's length, we did work towards a mutual end,

23 which was to move this community forward and bring this

24 community together, focused on what we can do right in this

25 community, making sure that there are both safeguards in place

4/19/2016 Motion Hearing

158 1 and oversight in place to ensure that unconstitutional

2 behavior does not occur anywhere in the city of Ferguson and

3 that all of our residents and all those who do business in our

4 community and all those who come through our community are

5 treated equitably and fairly.

6

We believe that this is an important step in bringing

7 this community together and moving us forward. We believe

8 that what's contained in this Consent Decree will help address

9 many of those concerns that have been brought before the Judge

10 and brought before the Department of Justice as well as

11 brought before the City, and we believe -- again, respectfully

12 request that you enter this Consent Decree and allow us to

13 continue the hard efforts that will come before or come ahead

14 of us in fully implementing this decree and restoring the

15 faith, we hope, in those who have lost it in both their police

16 department and their city government. Thank you.

17

THE COURT: Thank you. Mr. Webb.

18

MR. WEBB: Yes. Thank you very much. Thank you,

19 Your Honor, for allowing that.

20

Let me just begin with some -- by the way, I would

21 also join with the Department of Justice. I wanted to, first

22 of all, express my thanks to the Court for having this hearing

23 today. As Your Honor knows, under this particular settlement,

24 a fairness hearing wasn't actually required by the law, but

25 you agreed to have this hearing today, which we think was a

4/19/2016 Motion Hearing

159 1
 very productive endeavor in order to hear from the community.


2


I also would like to thank all of the citizens who


3
 came forward and made comments here today. We recognize


4
 that -- I tell my kids a lot of times, you know, instead of


5
 just sitting here complaining, go out and do something about


6
 it. Here, citizens took time out of their very busy


7
 schedules, came here to express their views about this very


8
 important Consent Decree. And there's a lot of different


9
 views and a lot of different opinions out there, and I, at


10
 least as one, found it to be a very educational process and


11
 one that was important to go forward.


12


And the City of Ferguson clearly understood, Your


13
 Honor, as they have said to me many times, that because of the


14
 controversy that came about because of the Michael Brown


15
 episodes, episodes that occurred, and the death and the


16
 tragedy of that, that tragedy of that event, that they


17
 recognized the controversy and that people have a right to


18
 speak out and have their views known, and here in this court


19
 proceeding, we're very grateful that they came forward and


20
 expressed their views about it.


21


As far as if I were to take a couple of overall


22
 takeaways, there's some specific comments I heard that I think


23
 the Department of Justice addressed many of them, but I do


24
 want to pick -- I want to sort some of them out and just


25 respond to some of them very specifically and then make some


4/19/2016 Motion Hearing

160 1
 general observations to Your Honor about the Consent Decree.


2


First of all, as far as deadlines are concerned,


3
 which the DOJ addressed, it is -- there's no question there


4
 are a lot of deadlines in this agreement. There's no question


5
 that these deadlines were subject to a lot of intense


6
 negotiations over a period of months in order to try to come


7
 up with deadlines that were fair and reasonable, and there's a


8
 lot of them, and we acknowledge that.


9


I will also tell Your Honor that -- that we agreed in


10
 this Consent Decree -- if you look at page 118 of the Consent


11
 Decree -- because of the number of deadlines, we actually have


12
 embodied in the Consent Decree, in paragraph -- it's on page


13
 118. In paragraph 454, we've agreed that the City will assign


14
 a current City employee for the duration of the agreement,


15
 assuming Your Honor enters it, the Consent Decree, that will


16
 become known as the Consent Decree Coordinator, and that


17
 coordinator will act as a liaison between various City


18
 departments and will assist in making sure that we comply with


19
 all deadlines. Your Honor, it is the intent of the City of


20
 Ferguson to comply with all of the deadlines that are in this


21
 agreement.


22


And I will also tell Your Honor that I respect my


23
 colleagues from the Department of Justice. In these


24
 negotiations, we had discussions about, well, what's going to


25 happen if there's a deadline and we can't meet it, and the


4/19/2016 Motion Hearing

161 1 response I got from the people at the Department of Justice, I

2 thought, was reasonable. I thought it was fair. If something

3 comes up that's unexpected right now, as a lawyer, I will go

4 to the Department of Justice in advance of failing to meet a

5 deadline, and I'll explain what happened and try to -- and I

6 got assurances from DOJ that they've had other cases where

7 sometimes the unexpected does happen, and they're reasonable

8 about it. And by the way, I do trust them in what they told

9 me, and I'm not doubting that. If there ever comes a time

10 that there's some huge problem, we obviously would have to

11 bring it to Your Honor. I don't expect that to happen. I

12 expect that we're going to be able to comply with deadlines,

13 and having a coordinator actually designated to do it, I

14 think, speaks volumes for the spirit of this agreement to make

15 sure that we do live up to the deadlines because there are a

16 lot of them.

17

Let me mention -- there's an issue that came up about

18 juvenile amnesty. What that relates to, I believe, is the

19 following, Your Honor. If you -- if you look at page 79 of

20 the -- of this Consent Decree, and you'll see what's called a

21 Comprehensive -- it's on paragraph 326. It's called the

22 Comprehensive Amnesty Program, which basically I'm going to

23 summarize it for Your Honor.

24

THE COURT: Just a second. I assume you're just

25 turning off that phone that went off.

4/19/2016 Motion Hearing


162

1

MR. WEBB: I didn't have a phone.

2

THE COURT: Thank you. Okay. Go ahead.

3

MR. WEBB: I didn't have a phone, Your Honor.

4

THE COURT: No, I didn't mean you. I wasn't talking

5 to you.

6

MR. WEBB: Oh, okay. I'm sorry. I didn't hear it.

7 I apologize. I didn't hear it.

8

THE COURT: Okay.

9

MR. WEBB: So what I was going to -­

10

THE COURT: Oh, it's the chair. Okay. It sounded

11 like a phone to me. Sorry about that.

12

MR. WEBB: Here's, I think, the issue of the comment,

13 and I'll explain it to Your Honor. As part of the

14 negotiations to come up with a Consent Decree we could reach

15 and bring before Your Honor, there was an issue about the

16 municipal ordinances and issues about them. So DOJ basically

17 told us that -- and there's -- that in other consent decrees

18 that there should be a cutoff by which that any case initiated

19 before a certain date that's not resolved then gets basically

20 amnesty, out of -- out of the case, out of the system. We

21 agreed to that. The date was January 1, 2014.

22

The only exception to that is that it was recognized

23 by DOJ that with some of these municipal ordinance charges,

24 some of them could be very serious. They could involve

25 violence. They could involve DUIs. They could involve


4/19/2016 Motion Hearing

163 1
 domestic violence, et cetera, et cetera. So what was carved


2
 in is that the prosecutor is given -- if the prosecutor


3
 actually makes a specific finding that there's good cause to


4
 continue the prosecution, they could be exempted out.


5


I think the comment about it was, well, juveniles


6
 should be eliminated -- they should be totally given full


7
 amnesty for anything if they're in the system before January


8
 of 2014. First of all, juveniles under the municipal


9
 ordinances can only -- if you're -- you have to be 17 or older


10
 to even be able to be prosecuted under any municipal ordinance


11
 whatsoever, and so between the ages of 17 and 18, the same


12
 amnesty applies to juveniles that applies to adults. They


13
 will be out of the program. If it was initiated before


14
 January 1, 2014, they get amnesty. The only exception, again,


15
 would be if a prosecutor in good faith determined there was


16
 good cause to continue the prosecution because it was a


17
 serious, serious issue. So that it's not -- it would not be


18
 right just to give someone amnesty when the case was still


19
 pending that involved some serious issues, but that's the


20
 only -- otherwise juveniles are going to be given the amnesty


21
 that adults would be given.


22


Another issue that I wanted just to touch upon that


23
 was mentioned was the issue of community outreach. I think


24
 the issue there, Your Honor, is the following: There are a


25 number of -- I'll call them -- plans and programs that are


4/19/2016 Motion Hearing

164 1
 built into this Consent Decree for community participation,


2
 and I think the issue that was commented on was whether


3
 citizens in Ferguson will learn about the opportunity to


4
 participate and be involved in this community policing spirit


5
 of this Consent Decree, and I would only just call -- maybe


6
 one of the most important provisions in this community-based


7
 policing program, as built into the Consent Decree, appears on


8
 page 6 of the Consent Decree, Your Honor, and deals with


9
 the -- as you'll see on page 6, beginning with paragraph 21,


10
 it's called this Neighborhood Policing Steering Committee, and


11
 that is an important committee that was created under the


12
 Consent Decree to help institute community-based policing.


13
 And basically, this committee is -- was set up in order to


14
 basically allow a broad representation of members of the


15
 Ferguson community to provide input on police issues and on


16
 law-enforcement-related issues, and this Neighborhood Policing


17
 Steering Committee was going to be able to -- they, basically,


18
 have -- if you'll go down to paragraph 22 -- placed no limits


19
 on the number of participants on the Neighborhood Policing


20
 Steering Committee and allow attendees and volunteers to


21
 participate and choose and participate in whatever category


22
 that attendees want to participate in.


23


And I'll just use that as an example. I was asking


24
 the City, while we were on your lunch break, to explain to me,


25 you know, "What outreach are you doing to let people in


4/19/2016 Motion Hearing

165 1 Ferguson know that? If they want to participate in this

2 Neighborhood Policing Steering Committee, how do they find out

3 about it and how -- so that they at least -- then they can

4 volunteer and participate in the program?" And I was told

5 that there's been extensive outreach to let people know about

6 this particular committee.

7

I'm told, for example, it is on the City Twitter

8 account, the City Facebook. It's on the City website.

9 There's a program actually under Ferguson where if you want to

10 get emails from the City of Ferguson, you sign up for the

11 program, and you'll get emails about this program. And so

12 there's an extensive outreach to notify people in Ferguson

13 that if you want to be on this committee you can do so.

14

One of the wards that was -­

15

THE COURT: Is there any -- is there any outreach

16 that goes to people who may not be as electronically wired?

17 All of those are things that someone has to be on Twitter or

18 otherwise on a computer, and some of the comments said people

19 who were on that committee said there had been suggestions for

20 other ways of outreach and those were rejected by the City.

21 Is that true?

22

MR. WEBB: Well, I don't -- I don't know if I can

23 address -- if I know, but I will -- but the answer to your

24 question is there are. Okay. And I'll just give you one that

25 was called to my attention. There was comments about the

4/19/2016 Motion Hearing

166 1 Third Ward in Ferguson and the participation of the Third Ward

2 in community policing. There right now is scheduled -- for

3 April 30th, there is a community outreach meeting that's been

4 set already. It's been set for some time on April 30th. It's

5 in a park in Ferguson, and the specific purpose of that -- it

6 was organized by the City, by the City, by people in the City,

7 to have a reach-out meeting for people in that Third Ward in

8 order to get them interested in this particular police

9 steering committee. And so that's not -- that's not

10 electronically sophisticated. It's a community meeting that

11 I'm told has been advertised and that they're expecting,

12 hopefully, a very good turnout for that.

13

But I -- as -- Your Honor, from everything I can gain

14 from talking to the Mayor and the members of the City Council,

15 we're not entering into a Consent Decree and then trying to

16 hide the ball on citizens' participation. We want a

17 community-based policing program that has community

18 participation, and we're going to follow the procedures that

19 we will follow as a -- to reach out as much as we possibly can

20 so that people know about the opportunities. And probably the

21 Neighborhood Police Steering Committee may be the most

22 important, but there's others, and we're committed to doing

23 that.

24

I also would just mention the issue -- there's a

25 mention of an issue of juveniles and the right to counsel, and

4/19/2016 Motion Hearing

167 1
 so I checked on that issue over the lunch hour also, and what


2
 I have come to learn is that the City of Ferguson follows the


3
 law and the Constitution rigorously on the right to counsel,


4
 and if there's any jail time provided for under a municipal


5
 ordinance, then counsel is provided by the City of Ferguson to


6
 the juvenile, and so I believe, from everything that I've been


7
 told, that the City of Ferguson is complying with their


8
 obligations regarding the right to counsel and juveniles.


9


Some general observations. As I listened to the


10
 comments from the citizens who spoke here today, I came away


11
 with this thought or observation. As far as the totality of


12
 the public comments here today, I think they probably spoke


13
 volumes of some of the challenges that the Department of


14
 Justice and we, representing the City of Ferguson, faced in


15
 trying to negotiate a reasonable and fair and adequate


16
 settlement in the midst of the controversy that attached to


17
 the tragedy regarding Michael Brown's death, and there's no


18
 question that if anything can explain why it may have taken us


19
 eight or nine months to get this done, it's because we


20
 recognize there's many voices out there in the community and


21
 they needed to be listened to, and there's no question that -­

22
 I think as the Department of Justice has told you -­

23
 throughout this Consent Decree, the voices of the community


24
 are being heard. I mean Department of Justice insisted on


25 provisions being in this Consent Decree, at least I believe in


4/19/2016 Motion Hearing

168 1 part, because of messages they were receiving from the

2 community, and so that there's a lot of controversy in

3 Ferguson about what happened in Ferguson, and it took time to

4 put together because those voices needed to be heard and, I

5 respectfully suggest, were heard.

6

Second observation: There were comments made about

7 Mayor Knowles and the City Council, and so I'm just going to

8 give you one observation as a lawyer working on this

9 settlement. I discovered early on in the process, Your Honor,

10 I could not get this settlement done without members of the

11 City Council being down in the trenches with me. I couldn't

12 handle this like an ordinary, routine case because, Your

13 Honor, there's too much going on in Ferguson. There's too

14 many voices -- not too many. There's a lot of voices there.

15 They needed to be heard, and I could not make judgments as I'm

16 sitting there negotiating with the Department of Justice.

17

A committee got appointed. Mayor Knowles and members

18 of the City Council were put on a committee to be with me

19 almost continually during all of the negotiations with the

20 Department of Justice. I'm talking about hours and days of

21 meetings, phone calls, and I cannot -- without the Mayor and

22 the members of the City Council and their efforts, I would not

23 have a consent decree to present to you today. I couldn't do

24 it. I could not have got it done. But because of their -­

25 and they were taking time from their personal other schedules.

4/19/2016 Motion Hearing

169 1 This was not just City Council time. This is an enormous

2 amount of time that these members of the City Council on this

3 committee and the Mayor spent in the trenches to get this done

4 so we could walk into this courtroom today and have a hearing

5 on a consent decree because they were committed to it and were

6 dedicated to it, and I think they deserve a lot of credit for

7 that.

8

My last observation would only be that I heard people

9 talk about -- and I had discussion with the Department of

10 Justice about this, but I do believe what you have in front of

11 you. If you want to -- I believe this Consent Decree -- with

12 all the effort that both sides put into putting this together

13 so we could come in front of a federal judge and present it

14 and have a hearing such as this, I do believe that with all

15 the effort put in this could become a model for -- a community

16 policing model for this entire region. In fact, I believe it

17 can become a model for cities across America that are

18 similarly situated to Ferguson in size. And, therefore, Your

19 Honor, for all the reasons I've articulated earlier, we

20 respectfully ask you to consider all the evidence you've

21 heard, all the arguments, and we respectfully ask for you to

22 approve the Consent Decree. Thank you.

23

THE COURT: I have one more question for you, from

24 something that was raised by some of the commenters. Two of

25 the different commenters, including one who was the subject of

4/19/2016 Motion Hearing

170 1 this prosecution, said that the prosecutor argued to the

2 judge, "We don't have a police officer, but you can infer from

3 the fact that someone was arrested that they're guilty." Did

4 that really happen? Because he said it just happened a couple

5 of weeks ago. They're both nodding vigorously, saying, yes,

6 it happened, but you know they thought it happened because

7 they said so. Have you checked into that?

8

MR. WEBB: I will check it. I mean I just heard it

9 today for the first time, but I checked into it now, in the

10 brief time I had, with the City Attorney, who's in court, and

11 was told that a prosector would never have made a statement

12 like that, and so that's all I could do in the brief time I

13 had. If you want me to try to check into it further, I'll do

14 so, Your Honor, to come back and give you an answer, but I

15 heard -- I heard it here. Mr. Rose, the last, I think,

16 witness who -- last commentator who raised it -- I took notes

17 on it, and I'm told by the City Attorney that that statement

18 would not have been made by a prosecutor, but I'm not going to

19 impugn the integrity of these fine people who have come into

20 court, and I checked it out as best I could here in the

21 courtroom today and was given that answer. If you want me to

22 go back and get more details, I will do so.

23

THE COURT: Well, what I think is that whoever is in

24 charge would need to -- the prosecutor, certainly, and you

25 need to make -- find out what happened at that hearing.

4/19/2016 Motion Hearing


171

1


MR. WEBB: I agree.


2


THE COURT: And if in fact there was any kind of an


3
 argument to that effect, obviously, that's a violation of all


4
 sorts of constitutional rights, and if it happened recently,


5
 that would be really a concern. So if it did happen, I hope


6
 that whoever might have made that statement would be told -­

7
 you know, would be given some remedial training.


8


MR. WEBB: We will do -­

9


THE COURT: I would hope that no prosecutor would


10
 ever say such a thing. It's the most basic constitutional


11
 right of any criminal justice system.


12


MR. WEBB: I was a prosecutor myself for many years,


13
 and I -­

14


THE COURT: I know you were.


15


MR. WEBB: And I agree with you. So I'm not arguing


16
 with you. The answer is yes to what you just stated.


17


THE COURT: Okay. All right. Anything further from


18
 the Department of Justice at this time?


19


MR. VOLEK: No, Your Honor.


20


THE COURT: All right. So I'm going to take a


21
 15-minute recess, and then when I return, I will tell you my


22
 rulings on this. So court is in recess for 15 minutes.


23


(Court recessed from 2:54 p.m. until 3:13 p.m.)


24


(See previously filed Excerpt of Ruling, Document #43.)


25


(Proceedings concluded at 3:25 p.m.)


4/19/2016 Motion Hearing
 172
CERTIFICATE

I, Gayle D. Madden, Registered Diplomate Reporter and
 Certified Realtime Reporter, hereby certify that I am a duly
 appointed Official Court Reporter of the United States
 District Court for the Eastern District of Missouri.

I further certify that the foregoing is a true and
 accurate transcript of the proceedings held in the
 above-entitled case and that said transcript is a true and
 correct transcription of my stenographic notes.

I further certify that this transcript contains pages
 1 through 171 inclusive.

Dated at St. Louis, Missouri, this 6th day of May,
 2016.

_________________________________ /s/ Gayle D. Madden

GAYLE D. MADDEN, CSR, RDR, CRR
 Official Court Reporter


 
 UNITED STATES DISTRICT COURT
 EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION


UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF FERGUSON, MISSOURI,
Defendant.

)
 )
 )
 )
 ) No. 4:16-CV-180-CDP
 )
 )
 )
 )


EXCERPT OF RULING FROM MOTION HEARING

BEFORE THE HONORABLE CATHERINE D. PERRY
 UNITED STATES DISTRICT JUDGE

APRIL 19, 2016


APPEARANCES:
 For Plaintiff:

Jude J. Volek, Esq.
 Christy Ellen Lopez, Esq.
 Amy Senier, Esq.
 Charles Wesley Hart, Jr., Esq.
 Chiraag Bains, Esq.
 UNITED STATES DEPARTMENT OF JUSTICE


For Defendant:

Dan Keith Webb, Esq.
 Jared Lyons Hasten, Esq.
 WINSTON & STRAWN LLP


Stephanie Karr, Esq.
 CURTIS, HEINZ, GARRETT & O'KEEFE


REPORTED BY:

Gayle D. Madden, CSR, RDR, CRR


Official Court Reporter


United States District Court


111 South Tenth Street, Third Floor


St. Louis, MO 63102

(314) 244-7987


(Produced by computer-aided mechanical stenography.)


Excerpt of Ruling from 4/19/2016 Motion Hearing


2

1


THE COURT: All right. First, I want to thank


2
 everybody here for their comments today. I found this hearing


3
 to be quite helpful, and I appreciated hearing from all of the


4
 members of the community who spoke. It certainly added to my,


5
 I guess, understanding. I think I understood it already from


6
 the law and the things the parties had filed, but certainly


7
 adding seeing the people involved makes a big difference, and


8
 I appreciate hearing from everyone who spoke.


9


So I've carefully reviewed the Consent Decree and


10
 listened to the arguments and the comments and considered all


11
 the legal issues, and I will approve the Consent Decree. It


12
 will be effective today. Whether it gets docketed today or


13
 tomorrow, I'm not sure. I'm not going to write a separate


14
 written opinion about my approval. I'm simply stating it to


15
 you orally on the record, and this portion, the things I am


16
 saying right now, will be transcribed and docketed at the


17
 court expense. Obviously, if anybody wants a transcript of


18
 the rest of the hearing today, they have to follow the normal


19
 procedures and order it and pay for it. However, this is my


20
 opinion.


21


I don't think that a lengthy legal opinion is


22
 necessary. The law is very well-established as to what I


23
 should consider in approving a consent decree such as this.


24
 And just to back up, obviously, in this case, the United


25 States alleged in the complaint that the City of Ferguson


Excerpt of Ruling from 4/19/2016 Motion Hearing

3 1
 through its law enforcement officials and municipal court


2
 system engaged in a pattern and practice of conduct that


3
 deprived the people of the rights protected by the First,


4
 Fourth, and Fourteenth Amendment to the United States


5
 Constitution, and the City of Ferguson has denied that it


6
 engaged or engages in any unconstitutional practices. This is


7
 how all lawsuits are. The parties disagree about the merits


8
 of the case. This is perfectly normal.


9


However, as in most lawsuits, they have agreed to


10
 settle the case. I believe the settlement they've reached is


11
 fair, adequate, and reasonable to address the allegations made


12
 by the Plaintiff, the United States. The Consent Decree is


13
 tailored to address the United States' allegations. The


14
 matters contained in it, although it is very detailed, are


15
 directly tailored to address the allegations made in the


16
 complaint.


17


It is consistent with the public interests, including


18
 the purposes of 42 United States Code § 14141, which prohibits


19
 any pattern or practice of conduct by law enforcement officers


20
 that deprives people of rights, privileges, or immunities


21
 protected by the U.S. Constitution.


22


It is also consistent with the purposes of 42 U.S.C.


23
 § 2000d, otherwise known as Title VI, which prohibits


24
 discrimination on the basis of race, color, or national origin


25 in any programs receiving federal funds.


Excerpt of Ruling from 4/19/2016 Motion Hearing


4

1


It is the result of arm's length negotiation, and it


2
 avoids the unnecessary costs and delay of litigation. And I


3
 will simply say that the -- well, I also think -- I find that


4
 it's the most effective and efficient means of resolving the


5
 claims and ensuring constitutional and effective law


6
 enforcement in Ferguson. The alternative to moving forward on


7
 this consent decree would be litigation, as I stated earlier,


8
 and certainly, if that were appropriate, I would have ordered


9
 that. That would have meant, I'm sure, several years' worth


10
 of discovery, document production, interrogatories,


11
 depositions, motions, and then ultimately a trial. Trials of


12
 this type of case, where they have happened, are obviously


13
 lengthy and result in a -- if the -- if the plaintiff wins


14
 result in a remedy that may not be as good for the citizens of


15
 the community as one that is negotiated, and that is why this


16
 negotiated settlement is -- is effective and efficient and


17
 does avoid the unnecessary costs and delay of the litigation.


18
 It's far better for the citizens of Ferguson to start


19
 implementing the remedy proposed by the Consent Decree now


20
 rather than spending a huge amount of money on both sides


21
 litigating the case and then ultimately, perhaps, doing


22
 exactly the same thing several years down the road. So I


23
 think it's in everyone's best interests, and I think it's in


24
 the interests of justice.


25

I have looked at both procedural and substantive


Excerpt of Ruling from 4/19/2016 Motion Hearing

5 1
 fairness in reaching this decision. The procedural fairness,


2
 I think, is amply met in this case. Although some people have


3
 complained that they weren't involved in the negotiation of


4
 the settlement agreement, the parties to the case were


5
 involved in the negotiation, and they sought input of the


6
 public, and I think the comments here today and those that


7
 were provided in writing -- although some people disagree with


8
 the way this was handled, I think people have had a chance to


9
 have their positions heard, and so that it is a procedurally


10
 fair -- the result of a procedurally fair process. I believe


11
 it is substantively fair, as I've stated, on the merits for


12
 the reasons stated before.


13


I mentioned at the beginning of this hearing that my


14
 job under the law -- I'm not allowed to rewrite a settlement


15
 agreement, but I wouldn't do that anyway in this case. I


16
 believe that this agreement is appropriate as it is written.


17
 The parties recognize that it may not be perfect and not


18
 everybody got everything they wanted, but that is what happens


19
 in settlements, and with any settlement, as with any


20
 settlement, the parties to the case know it best and know what


21
 is reasonable.


22


The Court is not a rubber stamp. I have


23
 independently reviewed these provisions and studied the facts


24
 and the allegations and the things presented to me, and after


25 that careful study, I believe that the parties did get it


Excerpt of Ruling from 4/19/2016 Motion Hearing

6 1
 right and this is a reasonable resolution.


2


The public has an overwhelming interest in seeing


3
 that policing and municipal court practices are done in


4
 compliance with the Constitution of the United States. I


5
 believe that this settlement agreement will result in that


6
 happening in the city of Ferguson. I do want to comment on a


7
 couple of things. The agreement does not have every single


8
 policy that will -- will govern what is going on in Ferguson,


9
 but that will be -- as was pointed out by the Department of


10
 Justice lawyer just a moment ago, those policies will be the


11
 outcome from the process that is set out in the agreement.


12
 It's not appropriate to put every single detail in an


13
 agreement such as this, and we all know, at 130 pages or


14
 whatever it is, every single detail would have just made it


15
 that much harder, and I think it's plenty detailed as it is.


16


I also find that both sides in this matter have shown


17
 good faith in their negotiating. This was an arm's length


18
 negotiating -- negotiation. I understand that there are


19
 people who are not happy with either side. I've received many


20
 comments that said that they believe the Department of Justice


21
 was biased in its approach. I received many comments and


22
 heard more today about people saying, "We can't trust the


23
 City." I understand both sides have strong feelings about


24
 these things, but based on what I have seen, I believe this


25 was the product of good faith and both parties acted in good


Excerpt of Ruling from 4/19/2016 Motion Hearing

7 1
 faith.


2


Additionally, good faith implementation will be


3
 required. It will be required by me and this court and the


4
 justice system, meaning the court system. The monitor who


5
 will be appointed -- and, obviously, I have no idea who that


6
 will be, but I will expect that that person will take the


7
 responsibilities very seriously and will report to me as well


8
 as to others if this is not being implemented in good faith on


9
 both sides. So I have full expectations that this will


10
 happen, and there's no reason to believe that it will not.


11


This investigation, obviously, grew out of a horrible


12
 tragedy that has affected the people in this room and the


13
 citizens of Ferguson as well as the people of the region. But


14
 this is in the best interests of everyone to move forward with


15
 this Consent Decree.


16


One of the concerns I have -- and this came from not


17
 only reading the things that have been presented to me here


18
 today and listening to the comments but also from my common


19
 sense and my simply knowing what's gone on in this metro area


20
 for the last couple of years. I am concerned that because


21
 there are such strong feelings here not everyone involved


22
 treats one another with the respect that we all owe one


23
 another as citizens. I am imploring all of the members of the


24
 community, no matter what you think of this or what faction or


25 side you may be on, to approach this with an attitude of


Excerpt of Ruling from 4/19/2016 Motion Hearing

8
 1
 respect and to give it your best shot. If we disrespect one


2
 another, if we're yelling and hollering at each other or


3
 threatening one another, this won't work. You all have to


4
 approach it as citizens and come together, and I hope that you


5
 will do that.


6


I have been very impressed with how everyone has


7
 behaved here in court. People were worried. When I said I


8
 was having this hearing, various people involved in the court


9
 system said, "What are you going to do if everybody starts


10
 jumping up and screaming and yelling?" And I said, "People


11
 don't do that in court. They know how to behave." And you


12
 all have done so, and I really appreciate that. So behave


13
 that way when you're dealing with one another in the community


14
 too. It's what you ought to do, and it's the right thing.


15
 Give this a chance to work. I think that it really will work


16
 and that you all have come up with a solution that I hope will


17
 work.


18


And also, of course, I will be paying attention to it


19
 and following my duties.


20


So I will sign the decree. I will expect to hear


21
 from the parties in due course when it is time for me to


22
 consider the things that I have to consider in the decree. I


23
 will say that when I went through it I certainly circled every


24
 time it said the Court will do this and the Court will do that


25 because I'll be watching for it, but I leave it to you all,


Excerpt of Ruling from 4/19/2016 Motion Hearing
9 1 and I think you've done a good job here today. It's a good

2 first step, and let's see if it will work.

3

Okay. So I will sign the decree, and this is my

4 ruling. Court's in recess.

5

(Proceedings concluded at 3:25 p.m.)

6

7

8

9

10

11

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10 CERTIFICATE

I, Gayle D. Madden, Registered Diplomate Reporter and
 Certified Realtime Reporter, hereby certify that I am a duly
 appointed Official Court Reporter of the United States
 District Court for the Eastern District of Missouri.

I further certify that the foregoing is a true and
 accurate transcript of the proceedings held in the
 above-entitled case and that said transcript is a true and
 correct transcription of my stenographic notes.

I further certify that this transcript contains pages
 1 through 9 inclusive.

Dated at St. Louis, Missouri, this 19th day of April,
 2016.

_________________________________ /s/ Gayle D. Madden

GAYLE D. MADDEN, CSR, RDR, CRR
 Official Court Reporter


 
 UNITED STATES DISTRICT COURT
 EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION


UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF FERGUSON, MISSOURI,
Defendant.

)
 )
 )
 )
 ) No. 4:16-CV-180-CDP
 )
 )
 )
 )


STATUS CONFERENCE

BEFORE THE HONORABLE CATHERINE D. PERRY
 UNITED STATES DISTRICT JUDGE

DECEMBER 6, 2016


APPEARANCES:
 Special Master: For Plaintiff:
For Defendant:

Clark Kent Ervin, Esq.
 SQUIRE PATTON BOGGS

Jude J. Volek, Esq.
 Amy Senier, Esq.
 UNITED STATES DEPARTMENT OF JUSTICE

Aarnarian (Apollo) D. Carey, Esq.
 LEWIS RICE LLC

Jared Lyons Hasten, Esq.
 WINSTON & STRAWN LLP


REPORTED BY:

Gayle D. Madden, CSR, RDR, CRR


Official Court Reporter


United States District Court


111 South Tenth Street, Third Floor


St. Louis, MO 63102

(314) 244-7987


(Produced by computer-aided mechanical stenography.)


12/6/2016 Status Conference


2

1

(Proceedings commenced at 1:05 p.m.)

2

THE COURT: All right. Good afternoon. We are here

3 in the case of United States of America versus the City of

4 Ferguson. This is Case No. 4:16-CV-180, and we are here for a

5 status conference to discuss the progress of the actions under

6 the Consent Decree, and so I would ask counsel for the

7 Plaintiff to -- would you all please stand and identify

8 yourselves?

9

MR. VOLEK: Jude Volek for the United States.

10

MS. SENIER: Amy Senier for the United States.

11

THE COURT: All right. And for the City of Ferguson?

12

MR. HASTEN: Good afternoon, Your Honor. Jared

13 Hasten on behalf of the City of Ferguson.

14

THE COURT: All right.

15

MR. CAREY: Good afternoon, Your Honor. Apollo Carey

16 on behalf of the City of Ferguson.

17


THE COURT:
 And, Mr. Carey, you're now the City


18
 Attorney; correct?


19


MR. CAREY:
 Yes, ma'am.


20


THE COURT:
 Are you going to participate as counsel


21
 in the case?


22


MR. CAREY:
 I will, and I will be entering an


23
 appearance.


24


THE COURT:
 Okay. That's what I was going to say.


25

MR. CAREY: Yes, Your Honor.


12/6/2016 Status Conference


3

1


THE COURT: You should enter an appearance if you're


2
 going to. Yeah. Okay. Thank you.


3


And we have the Monitor and some representatives from


4
 the Monitoring Team. So, Mr. Ervin, would you introduce


5
 yourself for the record also?


6


MR. ERVIN: Yes. Thank you, Your Honor. Good


7
 afternoon. Clark Ervin, the Monitor. And two members of my


8
 team, Kimberly Norwood and Natashia Tidwell.


9


THE COURT: All right. Thank you, all, for being


10
 here.


11


Okay. So, Mr. Volek, do you want to -- I have a -- I


12
 have the -- well, whoever wants to report. I don't know who


13
 wishes to. I do have the Independent Monitor Initial Work


14
 Plan that was filed. So I know some of what's going on, and


15
 I -- who wants to go first in telling us what's going on here?


16


MR. VOLEK: If it was all right with Your Honor, we


17
 thought we would follow the same format as last time and have


18
 the City present and then have the United States present and


19
 then hear from the Monitor.


20


THE COURT: That's fine with me. Is that okay with


21
 you, all?


22


MR. HASTEN: That's fine with us, Your Honor.


23


THE COURT: Okay. That's fine.


24


Mr. Hasten, you may go ahead.


25

MR. HASTEN: Good afternoon, Your Honor. Before I


12/6/2016 Status Conference

4 1
 begin, there are certain members of the City that I'd like to


2
 introduce.


3


THE COURT: Okay.


4


MR. HASTEN: They're in court today. I just saw him.


5
 Mayor Knowles is present along with Councilwoman Ella Jones,


6
 Councilwoman Laverne Mitchom, City Manager De'Carlon Seewood.


7


THE COURT: Would you all raise your hands so I can


8
 see who's who?


9


Okay. I see. Thank you. Thank you.


10


MR. HASTEN: Police Chief Delrish Moss, Lieutenant


11
 Colonel Al Eickhoff, and Commander Frank McCall.


12


THE COURT: All right. Thank you, all.


13


MR. HASTEN: And, Your Honor, I'll discuss Commander


14
 McCall's role as well too, but he's a recent hire to the


15
 Ferguson Police Department, and he has assumed the role of


16
 Consent Decree Coordinator, which we discussed last time that


17
 that role had been filled on an interim basis by City Manager


18
 De'Carlon Seewood and myself to some extent, and we're excited


19
 to have him aboard because he's hit the ground running. He's


20
 been in that position for a little less than two months, but


21
 he's done a tremendous amount of work with getting up to speed


22
 with what the Consent Decree requires and drafting a lot of


23
 policies. And as Your Honor would note by even reviewing the


24
 Consent Decree, a lot of the early foundational deadlines that


25 are coming due are policy drafting, and Commander McCall has


12/6/2016 Status Conference

5 1
 really taken the lead on that, and he's done a great job, and


2
 we're very pleased with what he has done to date.


3


And additionally, we have City Attorney Apollo Carey,


4
 who has also assumed the role in early October. So he's been


5
 in that position for a little less than two months, and he's


6
 also done a tremendous job in getting up to speed and really


7
 hitting the ground running in terms of coordinating with


8
 Mr. Ervin and his team and the Department of Justice and


9
 ensuring that the City is cognizant of the deadlines that are


10
 coming up in the Consent Decree and meeting those deadlines


11
 and working towards moving towards compliance.


12


And I thought it would help for Your Honor if you


13
 actually heard from Mr. Carey and he kind of updated you on


14
 some things that the City has been doing since we last spoke


15
 in September and some of the progress that we've made to date.


16


THE COURT: Yeah, that would be helpful. Mr. Carey.


17


MR. CAREY: Thank you, Your Honor. I appreciate the


18
 opportunity. So we just recently, I think -- as you heard


19
 from Mr. Hasten, I am about two months in or just shy of two


20
 months in in terms of representing the City of Ferguson with


21
 regard to compliance with the Consent Decree, and I think it's


22
 true; I think we've made substantial progress. Obviously, we


23
 still have work to do. Just yesterday, the Department of


24
 Justice and the Monitor Team arrived here in Ferguson, and we


25 hammered out an agreement on two of our first policies, the


12/6/2016 Status Conference

6 1 duty of candor for our police officers as well as the duty to

2 report misconduct, and that was -- you know, we had a really

3 good back and forth process, submitting our documents for

4 review and comment, and then just kind of sitting in a room,

5 kind of hammering out the final version of those policies.

6

We've also made some progress and some strides with

7 regard to our community policing effort. We have -- I believe

8 on the 13th of this month, our CRB ordinance, which is our

9 Civilian Review Board ordinance, will be up for its first

10 reading, and it will take two readings to pass, but the 13th

11 is a good day for us because we've gotten the language ready

12 for the CRB ordinance as well as we are starting our NPSC

13 group, which is our neighborhood policing group as well.

14 So -­

15

THE COURT: Let me ask you.

16

MR. CAREY: Sure.

17

THE COURT: In the -- the CRB ordinance -­

18

MR. CAREY: Yes, ma'am.

19

THE COURT: -- has that language been -- in the

20 ordinance -- been agreed to by the Department of Justice and

21 the Monitor as well as the City?

22

MR. CAREY: Yes, ma'am.

23

THE COURT: Yeah. That was one that you all hashed

24 out, as I understand it.

25

MR. CAREY: Yeah, that's right. They were actually


12/6/2016 Status Conference

7 1
 hashing that one out prior to my arrival -­

2


THE COURT: Right.


3


MR. CAREY: -- and then when I came in, we pretty


4
 much put some finishing touches on the language, and now it's


5
 been through the wringer in terms of the Department of


6
 Justice, the Monitor, and Ferguson. We're putting it up for,


7
 like I said, the first reading with the City Council, and then


8
 there will also be some -- you know, maybe some future input


9
 from, you know, folks in the community as well.


10


THE COURT: Right, after -- yeah, after it has the


11
 formal reading.


12


MR. CAREY: That's right.


13


THE COURT: Okay. And then you were mentioning the


14
 Neighborhood Policing -­

15


MR. CAREY: -- Steering Committee.


16


THE COURT: Steering Committee, yeah.


17


MR. CAREY: Yeah. We also have that -- you know,


18
 it's in its infancy stages of organizing, but we have some


19
 energized citizens, and Commander McCall, who is our Consent


20
 Decree Coordinator, has been working intimately with those


21
 folks to kind of get that group up and running as well.


22


THE COURT: Tell me how that group is structured.


23


MR. CAREY: Well, right now, it's a very loosely


24
 structured group, and what we're -­

25


THE COURT: Is that the one that it's sort of whoever


1 shows up is on the committee?

12/6/2016 Status Conference
 8

2

MR. CAREY: Well, it is in terms of -- well, let me

3 put it this way. They have to figure out how to structure

4 themselves.

5

THE COURT: Right.

6

MR. CAREY: We can make suggestions to the group, but

7 at the end of the day, the group, you know, is in control of

8 their own structure. So we have, you know, an interested

9 group of citizens, but as far as the structure, I think it's

10 still developing at this point.

11

THE COURT: Okay.

12

MR. CAREY: And, you know, that's kind of a snapshot

13 of, you know, where we are, and we're optimistic because we

14 have some policies that we've been passing back and forth.

15 We've got our background investigation policy, our recruitment

16 policy, I think, that we've got coming up today. We just had

17 a -- and one of the good things we've done -- and I think

18 maybe you'll hear from the Monitor. I don't want to steal his

19 thunder about this, but we've taken essentially what the

20 Consent Decree requires from us from a policy standpoint, a

21 policy development standpoint, and we've grouped them into

22 priorities. And so I think you'll hear from the Monitor,

23 maybe even a little bit from the Department of Justice

24 regarding how we've grouped those and how we're going to sort

25 of attack making sure we get the policy development going, and

12/6/2016 Status Conference

9 1 then we get into implementation and training and those types

2 of things. So I'm excited about it, and I think -- you know,

3 I think you'll hear a similar thing from the Department of

4 Justice.

5

THE COURT: All right. Thank you.

6

MR. CAREY: Okay. Thank you.

7

THE COURT: Mr. Volek.

8

MR. VOLEK: Thank you, Your Honor. We appreciate

9 this opportunity to update the Court and the public on our

10 views regarding the City's efforts to implement the Consent

11 Decree. There really has been significant progress made in

12 recent months. The City has worked hard on laying the

13 groundwork that is so important for the successful

14 implementation of the Consent Decree. To be clear, we're

15 still in the early stages, and there is much work to be done,

16 and I think we all wish that we were farther along. There

17 are, for instance, some deadlines that have come and gone that

18 have not yet been met, but at the same time, work is being

19 done to lay the groundwork to make sure that those deadlines

20 are met in short order and that future deadlines are complied

21 with.

22

During the last status conference, my colleague

23 Christy Lopez laid out three different areas that were really

24 important for laying the groundwork, and I'd like to just

25 update the Court on those three areas: One, the need for the

12/6/2016 Status Conference

10 1 City to appoint a Consent Decree Coordinator; two, the need to

2 establish a policy revision process that's effective; and,

3 three, the need to establish a process on the City's end for

4 being able to verify that the work that they are doing is

5 actually being done.

6

So I'll start with the first, the Consent Decree

7 Coordinator. As you heard from Mr. Hasten and Mr. Carey, in

8 October, Commander Frank McCall was appointed to serve as

9 Consent Decree Coordinator. This is a really critical step

10 forward. In addition to taking the ownership of the policy

11 review and revision process, Commander McCall also is serving

12 as liaison to the community groups that you heard of, the NPSC

13 and the CRB, and he's also managing the overall implementation

14 process. Before, it was the City Manager and the Chief of

15 Police who were doing that, and obviously, they have a whole

16 host of duties on their plate, and to have somebody dedicated

17 to those tasks is really critical. Commander McCall has

18 worked extremely hard over the last two months to get up to

19 speed, and he's really done an excellent job of doing that.

20 He understands what work has already been done under the

21 Consent Decree and what work still is urgently needed to be

22 done. We certainly appreciate his dedication to the

23 implementation of the decree, and we're confident that the

24 experience and commitment that he's going to bring to bear

25 will help this process.

12/6/2016 Status Conference


11

1


His role is critical, but he makes up only one small


2
 part of the overall team of the City that is responsible for


3
 implementing this decree, and that team starts with the


4
 leadership of City Manager Seewood and Chief Moss, both of


5
 whom have really committed themselves to this process in


6
 recent months. That's evident in many things but, perhaps,


7
 mostly in the appointment of Commander McCall and making that


8
 a command-level position. By making that a command-level


9
 position in the department, it really sends a message to


10
 everybody that the implementation of the Consent Decree is a


11
 top priority. We had some communications with the City about


12
 making sure that Commander McCall was dedicated and didn't


13
 have other duties that would get in the way of his working on


14
 the Consent Decree, and they were very responsive to those


15
 requests. So we really appreciate that.


16


There are also a number of new hires within the City


17
 that are also going to play a critical role in this process.


18
 There is a new municipal judge, a new city prosecutor. We had


19
 productive meetings with both of them, and they'll obviously


20
 play important roles in the implementation of the court


21
 provisions. There's a new human resources director.


22


And I want to take a minute to mention the hiring of


23
 Apollo Carey. Mr. Carey is the City Attorney. He has played


24
 a critical role in this process in the last few months as


25 well. He's there with us in the meetings when we're talking


12/6/2016 Status Conference

12 1
 about policies. He's there working with Commander McCall on


2
 managing the overall process, and having a city attorney who's


3
 present and willing to work so closely and collaboratively


4
 with both the Monitoring Team and the Department of Justice


5
 has really improved the progress that we've seen in the last


6
 few months, and so we now really feel like there's a team in


7
 place on the City's end to begin to increase progress even


8
 more, and we really do appreciate them putting -- laying that


9
 groundwork and putting those individuals in place.


10


Turning to the second issue, the development of the


11
 policy review and revision process, the Consent Decree


12
 requires that every one of its requirements be incorporated


13
 into official FPD policy or other written directive and that


14
 those policies are reviewed by the Monitoring Team and us to


15
 make sure that they are consistent with the Consent Decree,


16
 constitutional law, and best practices. There was a lot of


17
 work being done in the last few months on setting this process


18
 up. Previously, as you heard very briefly, the Chief of


19
 Police was really taking ownership of drafting policies, and


20
 that's not sustainable. He's got other duties, and so


21
 Commander McCall coming on is a big boon to that. But there


22
 was also a scattershot approach where, in their efforts to


23
 make sure that they hit every single Consent Decree deadline,


24
 they would be focusing on different policies at different


25 times and sending us them in batches that weren't very


12/6/2016 Status Conference

13 1
 organized, and so we've put a lot of effort -- the City has


2
 put a lot of effort into making sure there is an


3
 organizational structure, and so I think that the Monitor will


4
 speak more to this, but we -- that began with Commander McCall


5
 actually going through and doing inventory of existing FPD


6
 policies, grouping those by the category within the Consent


7
 Decree that they relate to, and that's very helpful so that


8
 when we, let's say, tackle force, we can start with all of the


9
 force policies, and so we understand the full range of


10
 policies that needs to be reviewed. That's going to really


11
 make the process more efficient.


12


It also identifies policies not only that need to be


13
 reviewed but that need to be developed, gaps in the existing


14
 FPD policy manual. And so having that organized -- taking the


15
 time at the front end to organize that process is really going


16
 to pay dividends at the back end. That's what we've found in


17
 our experience, and so while I realize that there are some


18
 deadlines that have yet to have been met, we're hopeful that


19
 taking that time-out is going to be worth it in the long run.


20


We have also come up with a priority list


21
 collectively for the policy review process. We have


22
 prioritized the recruitment policies, then the accountability


23
 policies, community engagement, then force, then bias-free


24
 policing, then stops, searches, and arrests. Those are


25 flexible, of course, but those were critical areas. We


12/6/2016 Status Conference

14 1
 understood that the City was eager to begin its recruitment


2
 efforts, but at the same time, we felt, as we discussed


3
 briefly at the last hearing, that it's important not just to


4
 race out and try and hire officers but make sure that that


5
 process results in hiring quality officers after a sufficient


6
 background check and making sure that there's a recruitment


7
 plan in place to make sure that the outreach efforts are


8
 robust and successful.


9


THE COURT: The news article this morning indicated


10
 that there were complaints made by people about -- and


11
 concerns raised about the number of officers on the force at


12
 this time. Do you want to comment on that, and do you think


13
 this recruitment effort will get -- will help?


14


MR. VOLEK: Absolutely, Your Honor. We do think it


15
 will help, and that's -- just to be clear, the Consent Decree


16
 requirements regarding recruitment -- it's not just things


17
 that the City has to do to make sure that when they want to


18
 hire somebody they follow a certain process. It also requires


19
 the City to come up with an actual recruitment plan that will


20
 help them increase their force and make sure that they are


21
 conducting the outreach that they need to conduct, creating


22
 the incentives that are necessary to attract high-quality


23
 officers, such as making sure that salaries are competitive.


24
 The full range of things in the recruitment plan is really


25 going to help the City make sure that they are attracting


1 highly qualified applicants.

12/6/2016 Status Conference
 15

2

At the same time, you know, making sure that the

3 background checks are actually conducted in accordance with

4 the decree is critically important as well. Making sure that

5 the officers that are brought on are qualified and making sure

6 that they receive the training that's appropriate.

7

As a second point, though, you know, that -- I do

8 think that that is going to help, and that is why we

9 prioritized the recruitment plan so high up in our order.

10 It's the first policy that we're working on precisely because

11 we understand those concerns. At the same time, the Monitor

12 is also going to be looking at current staffing allotment and

13 understanding whether there are tweaks that can be made within

14 the current staffing allotment in order to bolster the actual

15 workforce of the police department, meaning if there are

16 administrative duties that can be reassigned from sworn

17 officers to administrative staff to result in more officers

18 actually having time to actually police. So I think in tandem

19 those efforts are going to really aid that problem, but we are

20 going to continue to work on them.

21

I can just tell the Court that from our perspective,

22 from the Department of Justice's perspective, we understand

23 how -- how important this is to the City and to the community,

24 and so when we were provided with the initial draft of the

25 recruitment plan, the recruitment policy, we reviewed that in

12/6/2016 Status Conference

16 1
 short order and returned that to the City, and we're awaiting


2
 a new policy revision back from them, and we will continue to


3
 work on that as quickly as we can.


4


So a lot of work has been put into organizing the


5
 policy review process, but there's also been work to make sure


6
 that the policies that come out of that process are


7
 substantively sound, that they're consistent with the decree


8
 and applicable law and best practices. So there have been


9
 extensive conversations between the Monitoring Team and the


10
 City, Commander McCall and Mr. Carey, about what a good policy


11
 looks like, making sure that it's clear, making sure that


12
 before sending us a policy that the City actually goes through


13
 and incorporates all of the applicable Consent Decree


14
 provisions, and that's something that's going to be, quite


15
 honestly, an iterative process, but I do think that those


16
 conversations have been extremely fruitful.


17


We've also provided the City with a short useful


18
 tool, a checklist that they can go through and make sure that


19
 they've done the different things before they submit a policy


20
 to us, just to speed that process along and make it more


21
 efficient. The last thing we want to do is engage in a lot of


22
 back and forth on things that can be done at the front end.


23


At the same time, us and the Monitoring Team have


24
 worked very hard to coordinate our efforts in reviewing the


25 policies. So we've decided to review policies in tandem, in


12/6/2016 Status Conference

17 1
 coordination so that when we return a policy to the City they


2
 get one set of feedback and not two sets of feedback. That


3
 makes it a little bit easier for them, and it makes the


4
 process more efficient.


5


I can tell you that at yesterday's meeting we sat


6
 down with representatives from the City, and we discussed


7
 three different policies, and those -- those conversations


8
 were extremely productive. Everybody that we spoke with from


9
 the City was very open to the feedback that we were giving


10
 them on policies, and we were able to reach agreement on two


11
 really critical foundational policies, the duty of candor and


12
 the duty to report misconduct. So we anticipate that those


13
 initial conversations about this process will help speed


14
 everything along.


15


The third bucket that we talked about at the last


16
 status hearing was coming up with a process for the City to be


17
 able to establish or verify or a process for the City to be


18
 able to show that they've actually done the work that they are


19
 doing. This is, perhaps, the most difficult of the three -­

20
 of the three areas, and I think that it's the one that still


21
 has the most work to be done, but there has -- there has been


22
 some -- some movement on that as well. I think initially


23
 there was a desire on behalf of the City to do as much as


24
 possible as soon as possible, and I think that, perhaps, some


25 things were done without taking the time to actually document


1 what was being done.

12/6/2016 Status Conference
 18

2

So one example of that is the amnesty provisions

3 within the municipal court section. The former city

4 prosecutor took some actions to try and implement those

5 provisions but didn't actually go through and document her

6 work in a way that allowed the Monitoring Team to be able to

7 verify that what was actually done was done. But to the

8 City's credit, we had a very productive meeting about this

9 issue with the new city prosecutor, and the City has pledged

10 to actually go through and make sure it's done right in a way

11 that allows the Monitoring Team to verify that. So, you know,

12 it's no surprise that that's the area that -- where the least

13 has been done because that sort of comes later in the process,

14 but I can tell Your Honor that compared with where other

15 jurisdictions have been this early on in the process, within a

16 year into the Consent Decree, the City is right on track and,

17 in some places, even farther along than we would expect; in

18 some places, less far along, but we think that that progress

19 will increase.

20

I just want to make three final points. First, I

21 understand that there are deadlines that -- many of which came

22 at the 180-day mark, which was in the middle of October, and

23 that many of those deadlines have not yet been met, and it's

24 very important to us to have those deadlines because they do

25 serve as benchmarks to make sure that progress stays on track.

12/6/2016 Status Conference

19 1
 At the same time, we do feel like the City is working in good


2
 faith towards reaching those deadlines, and what we want to


3
 avoid is what was happening initially in this process, which


4
 is the City trying to do things in a way to meet those


5
 deadlines but not doing them well, and so if there comes a


6
 point where we believe that those deadlines are not being


7
 pursued in good faith, we will certainly let the Court know,


8
 but at this time, we feel like we are in a good position and


9
 it's worth taking the time to do this initial groundwork well.


10


The second thing I want to say is, you know, we're


11
 talking at the status hearing about the tremendous work that


12
 the City has done in recent months. I think it bears noting


13
 that there are other stakeholders involved in this process


14
 upon whom this process depends. The first is the Monitoring


15
 Team, and Mr. Ervin and his team have really done an


16
 exceptional job of -- it's fostering good communication


17
 between all the parties and making sure that our work is


18
 productive and goal-oriented. He and his team have played a


19
 critical role in policy review, and having the views of law


20
 enforcement experts like Natashia Tidwell and Chief Ed Davis


21
 has really been critical and will be going forward. They've


22
 also done some work on putting together the community survey,


23
 which Mr. Ervin will talk about in greater detail, but that is


24
 something that's going to be implemented in the near future.


25

The second group of stakeholders besides the City


12/6/2016 Status Conference

20 1
 that are doing a lot of work is members of the community, and


2
 I just want to mention to Your Honor that that work is


3
 continuing as well. The CRB, the Civilian Review Board Task


4
 Force, is working hard, and they are very pleased to know that


5
 the revised Civilian Review Board ordinance will be put up to


6
 a vote very soon and that that will be initiated and set up


7
 and get underway.


8


The NPSC is conducting regular meetings, and, you


9
 know, the process of creating a neighborhood group is always


10
 difficult, but there's benefits for going through that process


11
 and having that be centered within the community group itself


12
 and not sort of driven by either the United States or the


13
 City, and so those meetings have been very fruitful.


14


There was also a meeting yesterday between the


15
 Monitoring Team and the Ferguson Youth Initiative. That's,


16
 obviously, going to be a critical group to solicit their views


17
 on what the police department is actually doing on the ground,


18
 and so their continued civic engagement is really tremendous.


19


Last night, there was also a meeting where Mr. Ervin


20
 presented to a large number of individuals in the city of


21
 Ferguson. You know, we've been in many other cities, but I


22
 can say with all honesty that the specific engagement in


23
 Ferguson is unmatched in our experience, and going forward,


24
 that is really going to pave the way for the community's


25 continued involvement in the police department and making sure


12/6/2016 Status Conference

21 1 that these reforms actually get implemented.

2

So overall, I think it's a positive assessment.

3 There is still a lot of work to be done. I don't think that

4 anybody is under any illusion about that, and there will

5 inevitably be bumps along the road, but we are pleased with

6 the progress and encouraged, particularly, with the progress

7 made in recent months given the new personnel that's come on

8 board for the City.

9

THE COURT: All right. Thank you.

10

MR. VOLEK: Thank you.

11

THE COURT: Mr. Ervin.

12

MR. ERVIN: Thank you, Your Honor. Good afternoon.

13 I am delighted to have this opportunity to update you on the

14 status of things from the Monitor's perspective. As you know,

15 under the Consent Decree, the Monitor and the Monitoring Team

16 have three broad responsibilities. The first is to review

17 policies, training curricula, and other written materials to

18 ensure that they conform to the provisions of the Consent

19 Decree, applicable law, and best practices. The second is to

20 conduct audits and evaluations to determine whether the

21 material requirements of the Consent Decree have been

22 implemented and, thirdly, to conduct outcome assessments,

23 including the community survey Mr. Volek mentioned to

24 determine whether the implementation of the Consent Decree is

25 having the desired effect, namely policing and the

12/6/2016 Status Conference

22 1
 administration of justice in Ferguson that comports with the


2
 law.


3


I'll update you briefly from my perspective on where


4
 we are with regard to each of those. I won't repeat the


5
 comments of the City and DOJ with regard to the policy review


6
 process except to echo that from my perspective it is


7
 definitely making progress and is proceeding now in a much


8
 more organized and focused fashion in large part because of


9
 Mr. -- Commander McCall's being brought on board and


10
 Mr. Carey. We're working very closely together, and I'm so


11
 pleased that we're making such progress.


12


Just to add to a couple of things that have been


13
 mentioned in passing, as Mr. Volek said, it is a dynamic and


14
 iterative process -- the policy review and revision process.


15
 For example, just in the course of the meeting before the


16
 status hearing, we agreed that accountability is so important


17
 that we're moving up the review and revision of accountability


18
 policies to higher in the hierarchy than was previously the


19
 case. And in terms of gaps that we note during the course of


20
 this process, we have determined that there is an urgent need


21
 for the City to -- for the police department to have a social


22
 media policy, given how important social media is now to how


23
 people communicate and live their lives, and so that too will


24
 be given urgent attention by the City, by DOJ, and by the


25 Monitoring Team.


12/6/2016 Status Conference


23

1


THE COURT: Are you talking about a policy for the


2
 police force or for the City itself or for both?


3


MR. ERVIN: Really for both. Our priority right now


4
 is for the City, but really for both.


5


I should mention in addition to those six priority


6
 areas that Mr. Volek mentioned, we also agreed that certain


7
 policies that the City -- the police department -- has right


8
 now that are characterized as "core" are so fundamental to the


9
 reform process that they likewise should be prioritized for


10
 review, and those are the ones relating to police department


11
 authority, department jurisdiction, purpose and mission, and


12
 goals and objectives.


13


And the final thing I will say that has not been


14
 mentioned previously about the policy review and revision


15
 process is that the City requested recently, commendably, I


16
 think, that there be a front-end conversation between them,


17
 the Monitor, DOJ to give them our thoughts beforehand, at


18
 least in a general way, about what a policy should contain,


19
 not only to make sure that it conforms to the Consent Decree


20
 and law and best practices but to talk through these policies


21
 in a philosophical general way so as to avoid our having more


22
 extensive comments at the back end than might otherwise be the


23
 case. As I said, I think it was commendable that the City


24
 made that request. I was delighted to honor it from our


25 perspective and DOJ likewise, and we've already begun that


12/6/2016 Status Conference

24 1 process. So overall, I think it's going to proceed, as I say,

2 much more smoothly, and we look forward very much -- all the

3 members of the Monitoring Team -- to continuing to participate

4 in that process.

5

You haven't heard much about the other two aspects of

6 the Monitor's work. So let me spend most of my time talking

7 about that. With respect to evaluations and audits, as I say

8 in the Initial Monitor Work Plan that was filed late

9 yesterday, I'm not in a position now, as the Consent Decree

10 contemplates, to lay out a schedule for reviewing each

11 provision of the Consent Decree because relatively few

12 provisions have been implemented already and also it's not

13 feasible because of that to give a timeline that is definitive

14 or approaches being definitive. But that said, there are

15 three things that we think are far enough along such that it

16 does make sense now to do an evaluation and audit, and we can

17 certainly supplement them and update them as time goes by.

18

The first is municipal court reform. The City

19 represents to us that a lot has already been done with regard

20 to municipal court reform, and so in the next couple of weeks,

21 Kim Norwood, who's here, a member of the team who is a local,

22 as you know, Your Honor, law professor at Washington

23 University Law School, is an expert, among other things, on

24 municipal court reform. And Natashia Tidwell, who is here, a

25 former police officer herself, a former law professor, a

12/6/2016 Status Conference

25 1
 former prosecutor, a current private law practitioner -- they


2
 together will undertake this work. In certain cases, it's


3
 simply a matter of our confirming that certain old ordinances


4
 have been repealed and replaced with other ordinances. In


5
 other cases, it's a question of our confirming that certain


6
 process changes have been made, for example, moving oversight


7
 of the municipal court system from the City Finance Director


8
 to the St. Louis Circuit Court and to the Missouri Supreme


9
 Court. Another example is revising the online payment system


10
 so as to allow for late payments, payment plan installments,


11
 and all other court payments to be made online except where


12
 online payments are illegally prohibited. In other cases, it


13
 will be a question not just of reviewing documents or


14
 confirming that process changes have been made but also the


15
 team members observing court proceedings to make sure, for


16
 example, that those with business before the court are


17
 apprised of their rights and their options, the option of


18
 paying a fine in lieu of serving time, the option of community


19
 service in lieu of paying a fine, et cetera, and so I'm very


20
 pleased that that work will be underway shortly.


21


The second -- and Mr. Volek alluded to this -- is an


22
 assessment, a preliminary assessment, of police staffing. As


23
 you know and as you've heard previously, there is a great


24
 challenge for the City because of the relatively small number


25 of officers now from a high of 54 in the summer of 2014 to


12/6/2016 Status Conference

26 1
 about 36 down, and it's a perennial challenge for the City,


2
 given that small number of officers, to engage in community


3
 policing, which ultimately is what the Consent Decree is all


4
 about, and also to engage in the training that's necessary in


5
 order for police officers to know how to carry out community


6
 policing. And so, as you heard from Mr. Volek, Commissioner


7
 Davis, the former head of the Boston Police Department and the


8
 Lowell Police Department in Massachusetts, and Ms. Tidwell


9
 will begin actually today -- Commissioner Davis could not be


10
 with us today because of illness, but he arrives tonight, and


11
 the work will continue tomorrow when he's here, but they will


12
 begin that work this week, and the idea is whether there are


13
 certain changes in policies, in protocols, in scheduling such


14
 that even with 36 officers, nonetheless, officers can be freed


15
 up to do community policing and to do training. And so I look


16
 forward to apprising the Court of the outcome of that


17
 assessment.


18


The third area of assessment and evaluation at this


19
 point is community engagement. As you know and as we have


20
 discussed, a lot of work has been done, commendably, by the


21
 City to promote more positive engagements between the City


22
 generally, the police department in particular, and


23
 established community groups like the Civilian Review Board


24
 Task Force, the Neighborhood Policing Steering Committee, the


25 Youth Advisory Board that we met with last night, as Mr. Volek


12/6/2016 Status Conference

27 1
 mentioned, and various neighborhood associations. I should


2
 mention that there is tremendous interest in the community in


3
 getting like associations established with regard to the


4
 various apartment complexes in Ferguson, and I will be working


5
 intensively with the City to make sure that happens. I heard


6
 a lot about that in the community meeting last night about


7
 which more later -­

8


THE COURT: We're -- okay. I was going to ask you


9
 about that, but I'll wait -­

10


MR. ERVIN: Okay, Your Honor.


11


THE COURT: -- if you're going to say more.


12


MR. ERVIN: In terms of output assessments, outcome


13
 assessments, that's the last thing that the Monitor is to


14
 focus on. With input from the City, from community groups,


15
 from the Department of Justice, of course, as Mr. Volek


16
 alluded to, we have finalized a version of the first survey


17
 that we are going to distribute, namely, one with regard to


18
 community attitudes toward the police department and toward


19
 the municipal court system, and we anticipate administering


20
 that in early January. The plan had been to do that in


21
 December before the holidays. As a practical matter, it makes


22
 more sense, it seems to us, to do that after the holidays but


23
 as early in January as possible. As you know, Your Honor,


24
 I've been in some discussions with Washington University Law


25 School about that and had a discussion as recently as last


12/6/2016 Status Conference

28 1 week with one of the deans there, and I'm confident that there

2 will be student volunteers who will help us distribute that

3 survey. And it's important, needless to say, that it'd be

4 distributed sooner rather than later because the idea is that

5 that'd be distributed so that we, the Monitoring Team, have a

6 baseline assessment of what these attitudes are with the hope,

7 of course, that going forward over the course of the

8 monitorship there are improvements in citizens' attitudes

9 toward the police department and toward the court system.

10

Other surveys are called for in the Consent Decree.

11 As you know, one of the police department. That is nearly

12 finalized, and we anticipate distributing that after the

13 community survey is distributed. And the Consent Decree also

14 calls for an assessment, a survey of attitudes of court

15 personnel and also of detained arrestees in Ferguson, and we

16 will develop -- we, the Monitoring Team and our consumer

17 survey expert, will develop either a discrete survey for those

18 two groups or tailor a version of the community survey for

19 them, but more to come on those two.

20

The other aspect of outcome assessments is

21 determining whether the City has currently data which we can

22 use to make a baseline assessment of whether -- for example,

23 relevant statistics, like the number of stops and searches and

24 citations and arrests and use of force by race, ethnicity,

25 gender, sexual orientation, mental or physical disability, and

12/6/2016 Status Conference

29 1
 other protected characteristics so that we can see over time


2
 whether such encounters between the police department and


3
 citizens are more proportionate with the demographics of the


4
 city. If I have one major frustration so far, it's that it's


5
 been so difficult to extract this data from the City's vendor.


6
 As you know, I'm sure, Your Honor, the City relies on an


7
 outside vendor, ITI, for this information. It took some


8
 months, but the Monitoring Team has now gotten access to that


9
 database, but we still cannot see the data in the same way the


10
 City can, and that's important so that we can extract it and


11
 analyze it. Commendably, the City has been working very hard


12
 to break that log jam. Some additional costs will likely be


13
 involved, and so we're -- I am working very closely with the


14
 City to make sure that we have access to that data sooner


15
 rather than later. It's absolutely critical that we have it


16
 so that, again, we can chart progress, we hope, going forward


17
 in that regard.


18


The final thing I'll talk about is my own efforts and


19
 that of other members of the Monitoring Team to engage with


20
 the community. That's critically important. During the


21
 course of the application process and at the first status


22
 hearing, I pledged that I would be here at -- in Ferguson


23
 on -- every six weeks or so irrespective of our quarterly


24
 status hearings, and I have kept to that schedule generally.


25 I was last here, as you know, in early November. I will next


12/6/2016 Status Conference

30 1
 be here in about six weeks or so, and I have tried a mix of


2
 things in each of those visits to see as many community


3
 members as possible. I've experimented with setting aside


4
 time on a given night to see citizens either individually,


5
 one-on-one, or in small groups, 15-minute blocks, recognizing


6
 that that's not a lot of time, that it's arbitrary entirely,


7
 but the reason for that is to provide for as many meetings as


8
 possible since I -­

9


THE COURT: Right.


10


MR. ERVIN: -- can't be here indefinitely. That's


11
 worked somewhat well, at least for those people who have had


12
 an opportunity to see me. Last night, for the first time,


13
 though, we did a town hall meeting, and I was so pleased that


14
 there was a terrific turnout. I'd say there were 50 to 75 or


15
 so people at least. That meeting was convened jointly by the


16
 Human Rights Commission, the Civilian Review Board Task Force,


17
 and also the Neighborhood Policing Steering Committee. The


18
 bulk of the agenda was turned over to me to give an update on


19
 where we are, and I essentially gave the same report to the


20
 community that I'm giving in open court today, and there was


21
 an opportunity at the end, at least 30, 45 minutes or so,


22
 perhaps, an hour, for citizens to ask additional questions of


23
 me. Questions were submitted to me in advance which I


24
 answered in the formal session, and then I answered informal


25 questions afterwards, and I think that was a very good


12/6/2016 Status Conference

31 1
 opportunity for the City to hear from me and for me to hear


2
 from the City.


3


There was frustration. There is an intense interest,


4
 as Mr. Volek said, on the part of citizens that this Consent


5
 Decree process move along, that the provisions of the Consent


6
 Decree be implemented. I think, like he and like the City,


7
 that it's a very good thing that the City, that the community


8
 is as engaged as it is, and I will look for other ways to be


9
 more involved in the community and give them an opportunity to


10
 engage with me.


11


I should hasten to add that at least one member of


12
 the team is local, Ms. Norwood, and she's agreed to be our


13
 local designee here and the go-to person between my absences,


14
 but citizens have been given my email address, my telephone


15
 number. They've been encouraged to contact me, and the


16
 mechanism which I think will most facilitate that


17
 communication is a website which you know we have now


18
 established, www.fergusonmonitorship.com, and a colleague of


19
 mine is here to, at your request, debut that system.


20


THE COURT: Right. Yeah. No. I'm looking forward


21
 to seeing it.


22


MR. ERVIN: Great.


23


THE COURT: Let's see. There's a mark on the screen.


24
 Can you look at your monitor? See that red?


25

MR. ERVIN: Yes.


12/6/2016 Status Conference


32

1


THE COURT:
 You have to do that, I think.


2


MR. ERVIN:
 Oh, would you mind, Your Honor, if my


3
 assistant did that?


4


THE COURT:
 No. That's fine.


5


MR. ERVIN:
 Ms. Katz from my law firm, who is our


6
 technical -­

7


THE COURT:
 That's not -- it's something that -- it's


8
 a touchscreen thing.
 It gets changed over here at the


9
 touchscreen.


10


MR. ERVIN:
 Go ahead.


11


MS. LAUREN KATZ: No. In front of you here.


12


MR. ERVIN: Oh, great.


13


THE COURT: There you go.


14


MR. ERVIN: Good.


15


THE COURT: That's all. I was just asking you to


16
 take that off.


17


MR. ERVIN: Oh, sorry. Okay. Is that -­

18


THE COURT: Yeah, because you can annotate that. The


19
 monitor in front of you can be annotated -­

20


MR. ERVIN: I see.


21


THE COURT: -- and it can be annotated accidentally.


22
 If you hit the screen, it marks, makes marks. So that's


23
 probably what happened. Okay.


24


MR. ERVIN: Would you like Ms. Katz just to do -­

25

THE COURT: Yeah.


12/6/2016 Status Conference


33

1

MR. ERVIN: -- a quick review?

2

THE COURT: Yeah.

3

MR. ERVIN: The one thing I will add before she

4 begins is that the work plan that was filed last night will be

5 the first report that appears on the website.

6

THE COURT: Okay.

7

MR. ERVIN: Just briefly.

8

MS. LAUREN KATZ: Yes. Sure, absolutely. Here, we

9 are -­

10

THE COURT: Can you identify yourself for the record

11 please?

12

MS. LAUREN KATZ: Absolutely. I'm Lauren Katz. I

13 work at Squire Patton Boggs with Mr. Ervin.

14

Here, we have set up our Independent Monitor site,

15 fergusonmonitorship.com. At this point, we have loaded a bit

16 of information, and this will be -- as we get more information

17 and more documents, we will be adding to the site. The home

18 site, obviously, has an overall information on what the

19 monitorship is. Then we also have -- oh, I might actually -­

20

THE COURT: You can't navigate the computer from

21 there. I mean you could have plugged it in there. I don't

22 think anybody understood quite what you were planning to do.

23

MS. LAUREN KATZ: If I can be heard from here -­

24

THE COURT: Yeah. Just keep your voice up.

25

MS. LAUREN KATZ: -- under "Reports" -- absolutely -­

12/6/2016 Status Conference

34
 1
 we'll be outputting our reports and supplemental reports as


2
 they come in.


3


Under "News & Events," we have here, obviously, the


4
 information of this visit here to allow community members


5
 to -- to know when -- when the team will be in town and when


6
 things will be happening.


7


THE COURT: Okay. And just so you all -- if you wish


8
 to, anytime I set a hearing, you can certainly include that on


9
 your website. If you want to include a copy of the order or


10
 just put it up, you can. The court has a website as well. I


11
 have to tell you that I forgot to get this hearing listed on


12
 that website, and that's why it wasn't listed because I forgot


13
 because it's not automatic. It doesn't tie into our docketing


14
 system or anything. It's something -­

15


MR. ERVIN: Right.


16


THE COURT: -- somebody has to remember, and I forgot


17
 to do it. So we'll make sure we don't make that mistake


18
 again.


19


MR. ERVIN: Thank you, Your Honor.


20


THE COURT: Go ahead.


21


MS. LAUREN KATZ: Under "Key Documents," we have


22
 publicly available the orders and consent decrees thus far,


23
 and we will keep adding as appropriate.


24


Under "About Us," we have information about all of


25 the named monitors here so all the community will become more


12/6/2016 Status Conference

35 1 familiar with them, and most importantly, we have the

2 "Comments/Questions," which actually allows people online to

3 write messages that go directly to Mr. Ervin with information

4 that he can respond to.

5

MR. ERVIN: Thank you, Ms. Katz.

6

THE COURT: Okay. Thank you.

7

MR. ERVIN: And already, Your Honor, I will just

8 close by saying I've already begun to receive some comments,

9 and so I think it's going to be a very useful tool.

10

THE COURT: When did the website go live?

11

MR. ERVIN: It went live, I believe, last night.

12

THE COURT: Oh, okay.

13

MR. ERVIN: Yeah.

14

THE COURT: All right. Good. And you told everybody

15 about it, I assume, at the meeting; right?

16

MR. ERVIN: I did, yes, absolutely.

17

THE COURT: Yeah.

18

MR. ERVIN: And I believe that the City will make a

19 reference to our website, and in every further communication

20 we have, of course, we will urge people to take advantage of

21 it.

22

THE COURT: Okay. That sounds good.

23

So tell me about how you're going to -- how

24 neighborhood -- how you get neighborhood organizations set up

25 in the apartment complexes because that is part of the Consent

1 Decree too.

12/6/2016 Status Conference
 36

2

MR. ERVIN: It is part of the Consent Decree. That's

3 one of the City's obligations.

4

THE COURT: Right.

5

MR. ERVIN: And we have not focused on that a lot to

6 date, frankly, Your Honor, but as I say, last night, I heard

7 that that was a real frustration, at least on the part of

8 certain people in the community, and so it's very, very

9 important, indeed, and so I will work -- other members of the

10 Monitoring Team will work with the City to try to facilitate

11 that. Certainly, we are mindful of apartment complexes during

12 the -- as we contemplate the distribution of the community

13 survey. We want to make sure, needless to say, that apartment

14 residents -- their views are taken into account, and so our

15 plan there had been to actually go physically to those

16 apartment associations and physically administer the survey to

17 them. I have gotten the name of someone in St. Louis who has

18 an affiliation with apartment complexes in Ferguson, and I

19 have used her as a liaison to try to set up appointments for

20 me with people in the apartment complexes to facilitate that

21 process. So I'm going to focus on that a lot when I return to

22 Washington.

23

THE COURT: Okay. All right. What else?

24

MR. ERVIN: That's it for me, Your Honor.

25

THE COURT: Okay. Anything -- so let me ask you


12/6/2016 Status Conference

37 1 this, Mr. -- either Mr. Carey or Mr. Hasten. What is the City

2 going to do to try to facilitate the formation of these

3 neighborhood groups in the apartment complexes, or have you -­

4 what have you got in mind, I guess, is really the question.

5

MR. CAREY: Thank you, Your Honor. That's actually a

6 complex question.

7

THE COURT: Right.

8

MR. CAREY: As you know, it's not historically the

9 purview of a city to help to form neighborhood groups.

10 Typically -­

11

THE COURT: No. And, typically, that would be a

12 reason to be suspicious if the City were coming in forming

13 neighborhood groups. Right.

14

MR. CAREY: So, you know, what we've been doing so

15 far is to try to be as helpful to the Monitoring Team as

16 possible in terms of contacting some of these neighborhood

17 leaders and folks that are within the apartment community.

18

Here in St. Louis, we do have a metropolitan

19 St. Louis Apartment Association, all right, and so what I was

20 able to do was to pass some of that information or the

21 Executive Director's information on to the Monitor, and the

22 thought process being that the apartment association would be

23 able to identify some of its Ferguson members to then maybe

24 have them engage with the Monitor and with the City and have

25 discussions. I imagine this would be -- the process would -­

12/6/2016 Status Conference

38 1
 from our perspective, would be something similar to the NPSC


2
 situation where, you know, the City will do what it can to


3
 facilitate these organizations and encourage them to form and,


4
 you know, give them what we can in terms of advice and


5
 reasonable resources to help them. You know, it's still an


6
 issue for discussion within the City as to how far, you know,


7
 the City, you know, should go or would go. Obviously, we want


8
 to comply with the Consent Decree and whatever it requires us


9
 to do, but it's just something that I think is kind of, you


10
 know, for lack of a better phrase, a first impression type


11
 situation -­

12


THE COURT: Right.


13


MR. CAREY: -- in terms of a city getting involved


14
 with the formation of neighborhood groups.


15


THE COURT: You know, part of what made me -- one of


16
 the things I was thinking about is in the St. Louis


17
 metropolitan area, since we are a metro area of neighborhoods


18
 and everybody talks about what neighborhood they're from,


19
 there are so many neighborhood organizations, and yet I am


20
 sure there are many citizens who have never been involved in


21
 any of those neighborhood organizations because they just -­

22
 you know, most people probably haven't. But there are people


23
 who have been involved in neighborhood organizations all over


24
 the metro area who might be able to give advice to fellow


25 citizens. I'm thinking -- you know, I know there's a group of


12/6/2016 Status Conference

39 1 young people downtown -- I read about them in the newspaper -­

2 who live downtown, and they do stuff and get together, and

3 there are many neighborhoods who have neighborhood

4 organizations. Some neighborhoods have multiple organizations

5 that meet on a monthly basis. And for -- you know, it's just

6 things. They have evolved over time organically. So this is

7 different because you're trying to start one from the top

8 down, which is not the way these things usually work, but

9 maybe some of the leaders in those communities could provide

10 assistance to the citizens in Ferguson about how to go about

11 it.

12

MR. CAREY: I certainly think it would be helpful for

13 us to reach out to some of those organizations. You know,

14 quite frankly, we're going to need to because we don't have a

15 blueprint. You know, obviously, with the apartment community,

16 we're dealing with a different demographic in terms of the

17 transient nature of folks in apartment complexes, and not that

18 folks in apartments aren't necessarily vested in a community,

19 but you do have that transient element that you're dealing

20 with, and in terms of the interest and the sustained interest,

21 of course, you may have one or two folks or a group of folks

22 who are, you know, focused and have a sustained and a

23 maintained interest in what goes on from a policy standpoint

24 with the City, but by and large, the entire apartment

25 community, you do have that transient issue to deal with.

1 So -­

12/6/2016 Status Conference
 40

2

THE COURT: All right. I understand that, and I'm

3 just suggesting that the city of St. Louis has, obviously, got

4 a lot of apartment dwellers also and renters, and in many of

5 the neighborhoods like downtown -­

6

MR. CAREY: Right.

7

THE COURT: -- people are involved even though

8 they're renters, and so, you know, there may be -- there may

9 be just other people who might be able to give assistance in

10 how to get started. That's all I'm saying.

11

MR. CAREY: I think that's part of the plan because,

12 like I said, we don't have a blueprint.

13

THE COURT: Yeah.

14

MR. CAREY: So we're happy to reach out to folks in

15 some of the neighboring suburbs and even the city of St. Louis

16 to figure out how we go about doing that.

17

THE COURT: Right. I mean it just strikes me as one

18 of the things in the Consent Decree that's basically saying

19 you're going to do something that's not a natural thing for a

20 city to do -­

21

MR. CAREY: Right.

22

THE COURT: -- as opposed to most of the other things

23 in the Consent Decree that are definitely things that are

24 normal city responsibilities or police department

25 responsibilities.

12/6/2016 Status Conference


41

1

MR. CAREY: Yes, ma'am. Absolutely. That's

2 definitely a conversation we're having, and again, we'll do

3 whatever we can to work with the Department of Justice and the

4 Monitor to make sure we comply. I mean that's, obviously,

5 what we're here for.

6

THE COURT: Right. Okay. Well, and it sounds to me

7 based on what sounds like the comments last night at the

8 meeting it's something that there's a need for and a desire.

9 Probably many people would be interested in working on that, I

10 would suspect.

11

MR. CAREY: Yes, ma'am.

12

THE COURT: Okay. Anything further from the

13 Department of Justice?

14

MR. VOLEK: No, Your Honor. I just want -- on the

15 apartment complexes point, I just wanted to say that I agree

16 with what Mr. Carey said, that it's a fine line to walk. You

17 really do want that to be community-centered.

18

THE COURT: Right.

19

MR. VOLEK: And the Consent Decree reflects that by

20 saying that the City will assist with that.

21

I think learning from other organizations is

22 critically important. I think that educating people about the

23 utility of what a neighborhood association can do and making

24 sure that actually these associations are able to provide

25 meaningful input into the Ferguson Police Department and that

12/6/2016 Status Conference

42 1
 that input is considered by the Chief and whatnot will help


2
 cultivate some enthusiasm for the group.


3


And finally, I think that placing that effort in a


4
 broader context of community outreach to the apartment


5
 complexes is really important. This is an area Ferguson has


6
 not sort of had the best relationships with the City, and I


7
 think, you know, by making it clear that this is not just


8
 about creating a neighborhood association but by making sure


9
 that there's all sorts of outreach efforts toward the


10
 apartment complexes, I think that's very important.


11


So on that point, that's just a few thoughts, and


12
 otherwise, we don't have anything else to add.


13


THE COURT: Okay. Well, thank you, and I -- it


14
 sounds like you are making progress, and, you know, I think


15
 there are -- the Consent Decree had ambitious timelines in it,


16
 but I think that it sounds like now you're finally in a


17
 position where things are really beginning to move and those


18
 timelines can be met now that you have the personnel in place,


19
 and I'm pleased to see that you've really moved forward on


20
 that.


21


So I think -- you know, I think the City sounds like


22
 it's doing what it ought to be doing at this point. And keep


23
 moving. It's a lot of work to be done. Everybody's got to


24
 keep the momentum going.


25

I will schedule another status conference in about -­

12/6/2016 Status Conference

43 1
 probably, I guess, in early March, right, to, you know, try to


2
 hear where you are at that point, and if you need anything


3
 from me, obviously, you know what to do and where to find me.


4


Okay. All right. Thank you, all, very much.


5


And court is in recess.


6


(Proceedings concluded at 1:56 p.m.)


7


8


9


10


11


12


13


14


15


16


17


18


19


20


21


22


23


24


25


44 CERTIFICATE

I, Gayle D. Madden, Registered Diplomate Reporter and
 Certified Realtime Reporter, hereby certify that I am a duly
 appointed Official Court Reporter of the United States
 District Court for the Eastern District of Missouri.

I further certify that the foregoing is a true and
 accurate transcript of the proceedings held in the
 above-entitled case and that said transcript is a true and
 correct transcription of my stenographic notes.

I further certify that this transcript contains pages
 1 through 43 inclusive.

Dated at St. Louis, Missouri, this 12th day of
 January, 2017.

_________________________________ /s/ Gayle D. Madden

GAYLE D. MADDEN, CSR, RDR, CRR
 Official Court Reporter


 
 UNITED STATES DISTRICT COURT
 
 EASTERN DISTRICT OF MISSOURI
 

EASTERN DIVISION
 


UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF FERGUSON, MISSOURI,
Defendant.

)

 )

 )

 )

 ) No. 4:16-CV-180-CDP
 
 )

 )

 )

 )



STATUS CONFERENCE
 

BEFORE THE HONORABLE CATHERINE D. PERRY
 
 UNITED STATES DISTRICT JUDGE
 

MARCH 22, 2017
 


APPEARANCES:
 
 Special Master: For Plaintiff:
For Defendant:

Clark Kent Ervin, Esq.
 
 SQUIRE PATTON BOGGS
 

Jude J. Volek, Esq.
 
 Amy Senier, Esq.
 
 Charles Wesley Hart, Jr., Esq.
 
 Sharon I. Brett, Esq.
 
 UNITED STATES DEPARTMENT OF JUSTICE
 

Aarnarian (Apollo) D. Carey, Esq.
 
 LEWIS RICE LLC
 


REPORTED BY:

Gayle D. Madden, CSR, RDR, CRR
 


Official Court Reporter
 


United States District Court
 


111 South Tenth Street, Third Floor
 


St. Louis, MO 63102

(314) 244-7987
 


(Produced by computer-aided mechanical stenography.)
 


3/22/2017 Status Conference


2

1

(Proceedings commenced at 2:16 p.m.)

2

THE COURT: All right. Good afternoon. We are here

3 in the case of the United States of America versus the City of

4 Ferguson. It is Case No. 4:16-CV-180.

5

As everyone knows, this case was resolved through a

6 consent decree, and this is a status hearing to discuss the

7 implementation of the Consent Decree and any issues that may

8 be coming up, and I do want to comment, and I think some of

9 the lawyers may mention this too, but I did receive a

10 number -- I see there are a number of members of the public

11 here today, and I appreciate your interest and your being

12 here. I did receive letters from people who wanted to speak

13 today, and I'm not prepared at today's conference to hear from

14 members of the public. It's not something we normally do at

15 court proceedings, although in this case it's a different case

16 because it is of such interest to the public.

17

So at the next status conference, we will hear from

18 the public similar to the way we did when we had the hearing

19 to consider whether to approve the Consent Decree, and so

20 there will be a process for people who do wish to speak at

21 that time, but today I'm only going to hear from the lawyers

22 and the monitors or the Monitor.

23

So with that said, I would call on counsel for the

24 United States to tell me where things stand. There you are.

25 Okay. Mr. Volek.

3/22/2017 Status Conference


3


1


MR. HASTEN: Your Honor, would you like us to make


2
 appearances for the record?


3


THE COURT: Yes, it would be good if you would enter


4
 your appearances for the record.


5


MR. VOLEK:
 Jude Volek for the United States.


6


THE COURT:
 All right.


7


MS. SENIER:
 Amy Senier for the United States.


8


MS. BRETT:
 Sharon Brett for the United States.


9


MR. HART:
 And Charles Hart for the United States.


10


THE COURT:
 All right. And, Mr. Carey, if you'll do


11
 the same.


12


MR. CAREY:
 Apollo Carey for the City of Ferguson.


13


THE COURT:
 All right. And then Mr. Ervin.


14


MR. ERVIN:
 Clark Ervin, the Monitor.


15


THE COURT:
 All right. Thank you.


16


So whoever is -- Mr. Volek or whoever else is


17
 speaking for the United States. Thank you.


18


MR. VOLEK: Thank you, Your Honor. The United States


19
 appreciates this opportunity to update the Court and the


20
 public on our perspective on the status of implementation of


21
 the Consent Decree. I want to begin by talking about one


22
 specific area of the decree and then turn to our broader


23
 perspective on the progress made thus far.


24


On Monday evening, the Civilian Review Board of the


25 City of Ferguson met for the first time. This was a


3/22/2017 Status Conference
 

4 1

 significant step forward that will enhance transparency and
 


2

 accountability within the Ferguson Police Department and
 


3

 increase the community's involvement in shaping law
 


4

 enforcement in Ferguson. The Civilian Review Board will
 


5

 review misconduct complaint investigations, force
 


6

 investigations and will also perform other vital tasks such as
 


7

 serving on hiring committees and reviewing policies.
 


8



The creation of the CRB is the culmination of a lot
 


9

 of hard work by the CRB Task Force, which I'll talk more
 


10
 
about, and the City and the other stakeholders. First, the
 


11
 
CRB Task Force is a group of very dedicated members of the
 


12
 
Ferguson community who have worked for years to meet and
 


13
 
discuss what they want their Civilian Review Board to look
 


14
 
like. Many of those recommendations are mirrored in the
 


15
 
Consent Decree, and in fact, in many ways, the Consent Decree
 


16
 
incorporates exactly what they proposed. The creation of the
 


17
 
CRB is reflective of all of their effort. It's also
 


18
 
reflective of the effort that the City has made.
 


19
 


When we last met in December, the City still needed
 


20
 
to enact the ordinance establishing the Civilian Review Board.
 


21
 
There was an ordinance that was already enacted, but the City
 


22
 
had to enact a revised ordinance. The City did that in the
 


23
 
last several months. The City also pledged in response to
 


24
 
community concerns to reopen the application process and allow
 


25 
 more time for people to apply to serve on the Civilian Review
 


3/22/2017 Status Conference
 

5 1

 Board. The City had to work out the selection process for how
 


2

 they would choose the board members from among those
 


3

 candidates who applied. And finally, they had to actually
 


4

 select the board and get the board up and running. Each of
 


5

 those steps have been taken in the last several months by the
 


6

 City.
 


7



We attended Monday's meeting, and the nine newly
 


8

 appointed members are all extremely committed to this project,
 


9

 and it was really terrific to see, and in many ways, the work
 


10
 
begins now, however, because there's a real need to facilitate
 


11
 
and ensure that the Civilian Review Board doesn't just exist
 


12
 
but exists to meet the objectives set forth in the Consent
 


13
 
Decree, those objectives being to ensure greater transparency
 


14
 
and accountability.
 


15
 


And to that end, the Civilian Review Board will have
 


16
 
a lot of work on its own to do. They're going to meet in the
 


17
 
next coming weeks to discuss their bylaws and their rules of
 


18
 
order. The City has also pledged to put together a training
 


19
 
plan for CRB members consistent with the requirements of the
 


20
 
decree to make sure that they're up to speed on constitutional
 


21
 
law, city policies, privacy protections, and other issues that
 


22
 
are critical to them performing their duties effectively.
 


23
 


The parties also have to work together to incorporate
 


24
 
a procedure for misconduct investigation complaints to be
 


25
 
referred to the Civilian Review Board so that the Civilian
 


3/22/2017 Status Conference

6 1 Review Board can adequately look into those complaints and

2 review the misconduct complaint investigations.

3

And finally, the police department needs to come up

4 with its own internal processes to make sure that the Civilian

5 Review Board has access to the information it needs to do its

6 job effectively.

7

Similarly, there's also a need for continued

8 community involvement and not just from the Civilian Review

9 Board members but also from the task force itself, which has

10 really thought through many of these issues. And to that end,

11 reflecting, I think, the commitment that we've seen throughout

12 our time in Ferguson, the members of the task force have

13 pledged to stay on to assist the actual board members as much

14 as they can throughout this process.

15

I bring this up at the beginning because I think that

16 it's really emblematic of the work that is done throughout

17 every section of the decree so far, the work that has been

18 done so far. There has been significant progress made. Each

19 one of these provisions requires a number of concrete steps

20 that the City and other stakeholders need to take. There's

21 been significant progress on those steps, but at the same

22 time, there's still much work to be done to ensure that those

23 steps bear the fruits that we all want to see.

24

So with that in mind, I'll take a step back and

25 consider our perspective on the broader status of

3/22/2017 Status Conference

7 1
 implementation at this time, which is really, at this moment,


2
 an assessment that there is meaningful progress being made,


3
 and we certainly are encouraged by the progress that we've


4
 seen.


5


So work is really proceeding in two main areas that


6
 I'll talk about separately. First, on the one hand, there is


7
 the policy review process. As Your Honor is aware, there are


8
 numerous requirements in the Consent Decree that must be


9
 incorporated into Ferguson Police Department and Ferguson


10
 Municipal Court policies, and we discussed at the last hearing


11
 that we've set up a process for undertaking that policy


12
 development and review, and the City, in the first instance,


13
 revises the policies to make sure that it incorporates all


14
 requirements of the Consent Decree, constitutional law, and


15
 other best practices. And then we've worked on our system,


16
 both the Department of Justice and the Monitoring Team, for


17
 reviewing those policies once they are submitted.


18


As we discussed at the last hearing, it is an


19
 iterative process, and we continue to work to make that


20
 process work. We have a priority list in place and have


21
 worked hard on the top two policy areas on that priority list,


22
 first, recruitment and, second, accountability.


23


With respect to recruitment, there is both a


24
 recruitment plan, which sets forth the City's plan to actually


25 attract highly qualified officers and retain those officers,


3/22/2017 Status Conference
 

8 1 
 and, second, the Background Investigations Manual. We've 


2 
 really made meaningful progress to date on those things, on 


3 
 both of those items. And, in fact, yesterday, we had 


4 
 productive meetings that we think get us to a point where we 


5 
 have a draft that is ready for submission to some of the 


6 
 citizen groups within Ferguson for their consultation. 


7 


There have been a couple of issues with respect to 


8 
 recruitment that have been points that we all needed to 


9 
 address, one of them being the requirement that is central to 


10 
 the recruitment plan, central to attracting highly qualified 


11 
 officers and making sure that those officers stay in Ferguson 


12 
 for years to come, which is the requirement that there be 


13 
 competitive salaries offered, and I know that there's been 


14 
 some discussion in this court before about that issue, and I'm 


15 
 happy to report that there has been meaningful progress on 


16 
 that point as well. 


17 


The Department of Justice understands that 


18 
 recruitment is a priority. That is why we set the policy as 


19 
 the first that we were going to tackle under this review 


20 
 process. We understand that the department is down in 


21 
 numbers, below what is typically allotted, and so we have 


22 
 certainly made that a priority from our end. In addition to 


23 
 our work of trying to collaborate with the City as quickly as 


24 
 possible to get these recruitment policies approved and put 


25 
 into place, the Department of Justice has also issued the City 


3/22/2017 Status Conference

9 1 a COPS grant -- community office of -- Office of Community

2 Oriented Policing Services -- and that grant is for $250,000,

3 which pays for the salary for two officers over the course of

4 three years.

5

THE COURT: That's a Department of Justice grant?

6

MR. VOLEK: That's right, Your Honor.

7

THE COURT: Okay.

8

MR. VOLEK: And so, you know, we really understand

9 that the City is in need to bolster its recruitment efforts,

10 and that's exactly why we are trying to do everything we can

11 to make sure that the Consent Decree gets implemented on that

12 score first.

13

Second, with respect to accountability, the

14 accountability set of policies is one of the most complex

15 policy groups that we are going to encounter. The actual

16 methodology of how complaints are taken in by the department,

17 received by the department, how they're classified, the

18 process for investigating them, the process for referring

19 those out to the Civilian Review Board, coming up with a

20 disposition, imposing a penalty that's appropriate -- all of

21 those things are very complicated processes, and we've been

22 working through that. There are about six or seven associated

23 policies. You know, we still have a bit of a ways to go

24 there, but we have made progress in the last few months.

25

I think with respect to the work that's to come in

3/22/2017 Status Conference

10 1
 this area, the next policy group that is on our priority list


2
 is the community engagement policies, which is, obviously, a


3
 critical piece of this process. There is a community


4
 engagement plan that the Neighborhood Policing Steering


5
 Committee is working on consulting with the department to


6
 develop, and beyond that, we are going to look at body-worn


7
 camera policies and in-car camera policies and then


8
 use-of-force policies, and so I'm optimistic that at our June


9
 hearing, we will be able to report even more progress on the


10
 policy review front.


11


In addition to the policy prong, there's also a


12
 number of requirements within the decree that are not


13
 contingent on policies. You know, many of the requirements of


14
 the decree first need to be implemented in policy, and then


15
 officers need to be trained, and then there needs to be an


16
 assessment to make sure that what is put into policy is


17
 actually happening on the ground. There are some separate


18
 requirements of the Consent Decree that don't first need to be


19
 incorporated into policy necessarily. These are things like a


20
 comprehensive review of the Ferguson Municipal Code, the court


21
 requirements regarding amnesty provisions. These are things


22
 that need not be part of the policy review process but need to


23
 be done nonetheless, of course.


24


And on that front, I think that the City is dedicated


25 and really making a lot of effort. They're working extremely


3/22/2017 Status Conference

11 1 hard to get those requirements implemented. You know, I think

2 that you'll hear more from Mr. Carey about the specifics of

3 the City's efforts on that front. We are certainly encouraged

4 by the progress that they've made.

5

I think we all agree that there still is work that

6 remains to be done, but now that the City is beginning to make

7 real progress it's important for two things to happen. First,

8 the City, for its part, needs to develop a way to demonstrate

9 that it's actually done the things that it's doing. We talked

10 a bit about this at the last hearing, of coming up with a

11 methodology for demonstrating to both the Monitor and the

12 Department of Justice exactly what the City's efforts look

13 like. That looks different depending on what the requirements

14 are, and so those are conversations that really need to be

15 happening in short order.

16

The second thing is for the Monitoring Team to

17 develop a structured process for assessing compliance. The

18 Monitor, I know, is committed to that task, which is,

19 obviously, central to the Monitor's duties. I know that

20 you'll hear more from Mr. Ervin about that process, but he and

21 his team have worked incredibly hard on developing a

22 methodology for the municipal court section of the agreement,

23 and per the Consent Decree, I know that that will be submitted

24 to us and the City for review, I understand, in the next few

25 weeks, and so we are optimistic that that process will really

3/22/2017 Status Conference
 

12 1 
 lay out a model for how to approach other sections of the 


2 
 agreement to make sure that the methodologies that the Monitor 


3 
 uses result in a thorough, comprehensive assessment that the 


4 
 parties all agree with. 


5 


Finally, with respect to some of those efforts, 


6 
 specifically, on court, you know, we've been really encouraged 


7 
 on that front in particular, and, you know, this is anecdotal, 


8 
 of course, because we have not yet -- the Monitoring Team has 


9 
 not yet done a comprehensive assessment of those efforts, but 


10 
 I will just let the Court know that we observed a municipal 


11 
 court session both on Monday evening and on Tuesday, and one 


12 
 of the fantastic things that we witnessed was a member of the 


13 
 public, in a lull during court proceedings, remarking to the 


14 
 judge, applauding the judge about the level of respect and 


15 
 dignity with which he treated people that appeared before him, 


16 
 and this was a citizen giving a positive commendation to the 


17 
 municipal court judge, and it is certainly anecdotal, but it 


18 
 is entirely consistent with what we have witnessed thus far at 


19 
 the court. They've really made a lot of progress, and it's 


20 
 certainly consistent with what we've experienced working 


21 
 directly with the municipal judge and the city prosecutor on 


22 
 these issues. So we very much look forward to the Monitor's 


23 
 assessment, comprehensive assessment, of the court provisions 


24 
 in the next several months. 


25 


So taking a step back, in the next few months leading 


3/22/2017 Status Conference

13 1
 up to our June hearing, we will be working on finalizing the


2
 recruitment, accountability policies as well as community


3
 engagement and, hopefully, some other policy bunches as well.


4
 On the second front, we hope to continue to assist the City on


5
 nonpolicy-related efforts as well.


6


I certainly want to commend Commander McCall, who is


7
 the Consent Decree Coordinator, Chief Moss, City Attorney


8
 Carey, and City Manager Seewood. They are really the ones who


9
 are doing so much of this work. This work has to be done by


10
 the entire Ferguson community. That much is clear. It's


11
 clear through the work of the NPSC, through the CRB Task


12
 Force, through the CRB, through the people who show up at


13
 meetings and, you know, really have taken such great care on


14
 these issues for several years. But, you know, the City is


15
 really making efforts in good faith, and the result is that


16
 meaningful progress is being made on both of these fronts that


17
 I discussed.


18


I do want to be clear, though, that there still is a


19
 lot of frustration, division, and mistrust within the Ferguson


20
 community. We attended several community meetings, and that


21
 is readily apparent, and so I think in addition to the fronts


22
 that I've talked about, I think it will be critical in the


23
 next few months for the City to continue to expand its


24
 community engagement efforts -- I know that they're very


25 committed to doing so -- and to work with the Civilian Review


3/22/2017 Status Conference

14 1 Board, provide greater assistance to the Neighborhood Policing

2 Steering Committee, and consult with them on the tasks that

3 rest with those groups and to expand the broader engagement

4 efforts that are required by the decree.

5

We also understand that the Monitoring Team is

6 committed to expanding its own outreach efforts and doing

7 whatever it can as well to facilitate the success of those

8 community groups which are so critical to this process, and we

9 certainly are committed to the same.

10

In that respect, you know, one member of the

11 community is, of course, the Ferguson police officers

12 themselves, and, you know, we understand that in addition to

13 the officer assistance and support section of the Consent

14 Decree, there will also be some training delivered directly to

15 officers that is designed to foster greater conversation among

16 them to really lay the groundwork to enable them to have those

17 conversations with the public in a really productive manner,

18 and so that's called the Blue Courage training program. So at

19 the Department of Justice, we have some experience with this

20 training program around the country. It's really a terrific

21 program, and we have facilitated a grant from the Office of

22 Justice Programs to enable the Blue Courage program to be

23 delivered directly to Ferguson police officers, and so that

24 training looks like it will be delivered around the time of

25 our hearing, actually, at the end of June, and so, hopefully,

3/22/2017 Status Conference

15 1 we'll have a better update on that front as well.

2

So, finally, the last thing I'll say is I understand,

3 as Your Honor noted at the beginning, that there have been

4 some public requests to address the Court. In light of the

5 strong public interest in this case, we certainly think that

6 there is occasion for that to happen and there is a good need

7 for that to happen. We certainly would support those efforts

8 that Your Honor is making to making that happen at the June

9 public hearing. We also would request that the Court set a

10 process up in advance of that hearing to make sure that the

11 public has information about exactly what they need to do to

12 make sure that they're able to speak if they would like to do

13 so, or if you would like to -- if Your Honor would like to

14 hear from particular groups especially, that that information

15 being clear to the public would be very helpful.

16

THE COURT: All right.

17

MR. VOLEK: Thank you, Your Honor.

18

THE COURT: All right. Thank you.

19

Mr. Carey, I'll hear from you on behalf of the City

20 of Ferguson.

21

MR. CAREY: Thank you, Your Honor.

22

Thank you, Your Honor. We appreciate the opportunity

23 to provide the update to the Court with regard to our progress

24 on the Consent Decree. I do want to, however, maybe take a

25 minute or so here to talk a little bit about some organic

3/22/2017 Status Conference

16 1 change that has happened in the city of Ferguson since the

2 events that have precipitated the need for the Consent Decree

3 just so that the Court kind of has some background in terms of

4 where we are, and we know that, you know, obviously, all eyes

5 in the nation are on Ferguson. So we want to be able to maybe

6 talk a little bit about the organic change that's happened in

7 Ferguson, not necessarily related to the Consent Decree, but a

8 very important change that I think will help further our

9 efforts with regard to the Consent Decree.

10

You know, first of all, on the level of our elected

11 officials, you know, the city of Ferguson has -- you may not

12 know, but there are three wards in the city of Ferguson. We

13 elect two elected officials from each ward, and we're happy to

14 report that, you know, we have attained racial as well as

15 gender balance on those fronts. We've got one

16 African-American and one Caucasian representative from each

17 ward, and that is something that we're very proud of and, I

18 think, is a direct effort of our citizens who have decided

19 that racial and gender equality is important with regard to

20 our elected officials, and also, it's also important to note

21 that we have four females and three males on our City Council.

22

THE COURT: I'm never opposed to having women be in

23 the majority of anything.

24

MR. CAREY: That's right. That's right. They tend

25 to have a great leadership quality, and ours certainly do as

3/22/2017 Status Conference

17 1
 well. So, again, achieving that racial and gender balance on


2
 our City Council is a direct reflection of what our citizens


3
 think is important with regard to their elected officials.


4


The other kind of organic change I want to address is


5
 the racial balance that we've reached within our


6
 administrative and court system. It's really -- and we're


7
 really kind of proud to say that we've -- you know, the four


8
 folks that we have consistently working on the Consent


9
 Decree -- myself, Commander McCall, our city manager as well


10
 as Chief Moss -- are all African-Americans, and this is -- you


11
 know, this is a really very proud point, I think, for the city


12
 of Ferguson to have, you know, African-Americans in the


13
 position of administrative leadership, but it's also important


14
 to note that, you know, our municipal judge is Caucasian. Our


15
 chief court administrator is Caucasian. Our assistant city


16
 manager -- Caucasian. Our assistant police chief -­

17
 Caucasian. My point being that the City has, you know, worked


18
 very hard to reach this racial balance that we have, and I


19
 think it's important for the Court and the world to understand


20
 that with regard to Ferguson moving forward. You know, these


21
 efforts are a direct result of our elected officials deciding,


22
 you know, that this was important for the city going forward.


23
 So we just wanted the Court to kind of understand that.


24


And now, as Jude mentioned, we're not at all saying


25 that the City doesn't have work to do. I think it is fair to


3/22/2017 Status Conference
 

18 1 
 say that the City does have some divides that need to be 


2 
 healed, still some wounds relating to the events of 2014 that 


3 
 we need to overcome as a group, but at the very least, from 


4 
 the standpoint of city leadership on the elected officials 


5 
 side as well as the administrative and court side, we're 


6 
 making some progress organically. 


7 


Now I want to maybe turn the Court's attention to the 


8 
 progress that we're making from the City's perspective with 


9 
 regard to the Consent Decree, and it's important for us to -­


10 
 for me to say initially that the City believes in the concepts 


11 
 and ideas of this Consent Decree. We're so very happy to be 


12 
 able to participate in this work because we think that what is 


13 
 contained in this Consent Decree with regard to transparency, 


14 
 with regard to First Amendment policing, with regard to 


15 
 community engagement -- these are things that are just so 


16 
 important to us as a community and also us an administrative 


17 
 staff and elected officials. And so we really support and 


18 
 stand behind the ideas and concepts in the Consent Decree. 


19 


So I want to take a little bit of time to maybe just 


20 
 kind of explain to you, Judge, where we're going with regard 


21 
 to some of the major aspects of the Consent Decree, and where 


22 
 I'd like to start is on the FPD side. So it kind of falls 


23 
 into two buckets. You've got the FPD side, and then you've 


24 
 got the municipal court side. 


25 


So with the FPD, we have made substantial efforts 


3/22/2017 Status Conference

19 1
 with regard to community engagement. As a matter of fact, we


2
 have submitted recently to the Department of Justice a


3
 community engagement policy, which we are going to use as the


4
 basis for our community engagement plan, and so we have, you


5
 know, been in very deep discussions with the Department of


6
 Justice about developing that plan and, you know, moving


7
 forward with regard to community engagement. And


8
 specifically, it's important to note that our officers have


9
 taken steps to show that they are definitely engaged in the


10
 community.


11


You know, the City has done things such as attending


12
 the -- you know, we have officers attending our neighborhood


13
 association meetings. We have the Ferguson Youth Advisory


14
 Board. We have officers who attend those meetings. We have


15
 the Ferguson Human Rights Commission, and we have officers


16
 attend those meetings. We, obviously, have the NPSC, and we


17
 have officers attending those meetings. We've had our chief


18
 go door-to-door, introducing himself to the residents in the


19
 community and letting them know that he is here for them, that


20
 he has an open-door policy, and that he is here to help. And


21
 so there have been substantial efforts made on the City's part


22
 with regard to community engagement, and as I said, the


23
 Department of Justice and the City are currently working on


24
 the actual plan of community engagement.


25

I just mentioned our NPSC, which is our Neighborhood


3/22/2017 Status Conference

20 1 Policing Steering Committee, which is formed. It's up and

2 running. It is not without its challenges. You know, I think

3 this kind of incorporates the statement I made earlier about

4 there's still some divides and some wounds in the community

5 that need to be healed, but rest assured that the City is

6 dedicated to doing whatever it can to help heal those divides.

7 We've recently spoken with the Department of Justice about

8 potentially getting maybe a professional facilitator or a

9 professional, you know, community mediator or facilitator to

10 maybe come in and help to kind of facilitate some progress

11 with that group because we feel that it's very important to

12 the future of the city.

13

I did mention our Youth Advisory Board that we

14 started, which is really, really kind of a neat thing that

15 we've done to get our youthful citizens involved in the

16 community, and so we've started this advisory board. I know

17 for a fact that one of our City Council members is deeply

18 involved with that, and it's not only the City Council member,

19 but like I said, we also have a police presence there who also

20 attend those meetings, and so -­

21

THE COURT: How many people -- how many youth

22 typically attend the Youth Advisory Board, or is there a

23 specific number of people on the board?

24

MR. CAREY: On the board? I've only been to one

25 board -- I've only seen -- I didn't even go to the board

3/22/2017 Status Conference

21 1
 meeting. I've only seen one board meeting. There were about


2
 12 people in the board meeting, but I'm not quite sure if that


3
 was a regularly scheduled meeting or -­

4


THE COURT: Okay.


5


MR. CAREY: But that's what I saw with my own eyes.


6
 So the other thing -- so last time we were here, we talked


7
 about the apartment complexes, and you had asked the question


8
 about what the City is doing with regard to its apartment


9
 residences and how the City was going about addressing that


10
 issue in the Consent Decree in terms of compliance, and I


11
 didn't say it then because I didn't know it then, but come to


12
 find out, right after the hearing, the city manager told me


13
 that, you know, we've been working with a group called Urban


14
 Strategies, which is a local kind of neighborhood group, and


15
 what they did was the folks at Urban Strategies had reached


16
 out to some of our apartment community residents and have


17
 helped them start a new community organization called the


18
 Southeast Ferguson Group. All right. And so the Southeast


19
 Ferguson Group consists of several of our major apartment


20
 complexes in the area as well as some of the single-family


21
 homes around that area, and so what that does is -- we believe


22
 it allows folks who are in that segment of our community a


23
 voice, and it gives them a consecrated voice, and so they're


24
 able to participate and kind of come together and talk about


25 issues, and I know for a fact that our city manager personally


3/22/2017 Status Conference

22 1
 attends those meetings between the Southeast Ferguson Group,


2
 Urban Strategies, and the City, and so that's just kind of


3
 another step that we've taken with regard community engagement


4
 specifically with reference to our apartment complex.


5


So the last thing or one of the few things of the


6
 last things I'll touch on on the FPD side is our CRB. I mean


7
 we couldn't be prouder right now to be able to have the CRB up


8
 and running. It was a labor of love for two years to try to


9
 get that ordinance passed and to work out all the details that


10
 we needed to work out in the ordinance and to get everything


11
 going up. We have a CRB Task Force who worked extremely,


12
 extremely hard to get this organization up and running, and


13
 now we actually have a board, as the Department of Justice


14
 referenced. We had our first meeting on Monday, and I can


15
 tell you that it was such a positive experience, and so we


16
 have some momentum with our CRB, and so as you had


17
 mentioned -­

18


THE COURT: I assume the CRB is still just organizing


19
 and coming up with these policies. It hasn't actually started


20
 reviewing any complaints or anything like that?


21


MR. CAREY: You would be correct, Your Honor.


22


THE COURT: Yeah.


23


MR. CAREY: You would be correct. And so what the


24
 Department of Justice has graciously agreed to because we, the


25 City, has to develop training for the CRB -- so although, you


3/22/2017 Status Conference

23
 1
 know, the parties have decided to kind of work on a priority


2
 schedule, the Department of Justice has agreed to kind of bump


3
 up that training piece because we've got momentum now and we


4
 don't want to lose it, and so they've -- you know, because


5
 we've got to run all our training policies by the Department


6
 of Justice and that type of deal. So it's really exciting to


7
 have that going, and so we don't want to lose the momentum.


8
 So we'll bump that up on the list of priorities.


9


So with regard to the municipal court side, I kind of


10
 want to switch and talk about the municipal court side


11
 because, like the Department of Justice, the City is obviously


12
 very happy with the progress that we've made on the municipal


13
 court side with regard to reform, and we just kind of wanted


14
 to kind of highlight some of the things that the City has done


15
 that are required in the Consent Decree to do. We get a lot


16
 of -- you know, believe it or not, we get a lot of media


17
 requests for, you know, interviews and this type of deal. I


18
 think what happens is people get, you know, copies of the


19
 transcripts and they read them. So I just want to kind of


20
 touch on some of the more important items that we've done so


21
 it can be a part of the record.


22


So one of the requirements was for the City to repeal


23
 what the Department of Justice felt were maybe some onerous


24
 ordinances, specifically, our ordinance regarding fines for


25 failure to appear, fees for withdrawal of complaints, and


3/22/2017 Status Conference
 

24 1

 ordinances regarding prison time for failure to pay, and so
 


2

 the City has repealed all of those ordinances. As a matter of
 


3

 fact, we probably repealed those ordinances maybe sometime
 


4

 even prior to the finalization of the Consent Decree, but just
 


5

 so that it's on record and of note to know that the City has
 


6

 gotten rid of all those, you know, overbearing or what the
 


7

 Department of Justice might term as onerous ordinances.
 


8



One of the requirements of the Consent Decree on the
 


9

 municipal court side was that we removed oversight of the
 


10
 
court from our City Finance Director, right, and so the City
 


11
 
has done that, and the City now reports directly to the
 


12
 
St. Louis County Circuit Court and the Missouri Supreme Court.
 


13
 


THE COURT: 
Yeah. So the municipal court reports to
 


14
 
the circuit court?
 


15
 


MR. CAREY: 
Yes, ma'am.
 


16
 


THE COURT: 
And no longer to the City structure?
 


17
 


MR. CAREY: 
Yes, ma'am.
 


18
 


THE COURT: 
Okay.
 


19
 


MR. CAREY: 
Yes, ma'am. And so they have been filing
 


20
 
those reports regularly to the St. Louis Circuit Court, and so
 


21
 
that was a requirement that the City has fulfilled.
 


22
 


We talked about one of the -- or excuse me. One of
 


23
 
the provisions in the Consent Decree relating to municipal
 


24
 
court reform was our amnesty program. As you know, there was
 


25 
 on our books a lot of fines and fees related to failure to
 


3/22/2017 Status Conference

25 1 appear and these types of things. So we've implemented an

2 amnesty program in which our new city prosecutor has come in,

3 and I think he has forgiven a total of $1,750,562.67 worth of

4 fines dating back to August of 2014, and so it's a significant

5 number with regard to our amnesty program, and so,

6 essentially, what the prosecutor did was he went through the

7 previous cases that were on the books and basically made a

8 determination whether or not there was good cause to continue

9 with the prosecution, and the ones where he did not make

10 that -- where there was no determination of good cause, he

11 dismissed or just declined to prosecute.

12

The City has also passed an ordinance adhering to the

13 minimum operating standards of the St. Louis County Circuit

14 Court, and our circuit judge has signed that agreement as

15 well, and so the municipal court now operates consistently

16 with the standards of the St. Louis Circuit Court, which kind

17 of buttresses the point that I made earlier with regard to the

18 court reporting directly to the St. Louis County Circuit

19 Court.

20

There was provisions in the Consent Decree regarding

21 notice of rights related to citations. So when people came in

22 the court, you know, one of the complaints was that there was

23 no notice of rights and what the litigants' rights were with

24 regard to seeking, you know, representation and paying fines

25 and that type of deal. So we have implemented a program

3/22/2017 Status Conference
 

26 1

 that -- you know, this is consistent with the wishes of our
 


2

 new municipal judge where we make sure that we hand out
 


3

 notices of rights to everyone who comes in our courtroom.
 


4



One of the requirements was that we updated our
 


5

 online payment system to accept partial payments of fees, and
 


6

 we have done that as well. We've made some strides with
 


7

 regard to our ability-to-pay determinations, and what that
 


8

 means is essentially there was some language in the Consent
 


9

 Decree as well as in the Department of Justice report which
 


10
 
basically said the City was, you know, basically charging
 


11
 
people more money who weren't able to pay the initial fines,
 


12
 
and so what we did was we implemented a program, and this is
 


13
 
consistent with what is being done at the county level. We
 


14
 
have a checklist and some other material to kind of make
 


15
 
ability-to-pay determinations, and once the judge makes those
 


16
 
determinations, the judge -- we also have a community service
 


17
 
program where we, you know, can recommend community service
 


18
 
for those folks that are unable to pay, and since we have
 


19
 
implemented that program, we have a total of 916 cases that
 


20
 
have been given community service instead of being charged a
 


21
 
fine.
 


22
 


Oh, another kind of important note in terms of what
 


23
 
we've done -- one of the requirements of the Consent Decree
 


24
 
was that we needed to separate the prosecutor from the
 


25 
 municipal court, and so what we have done is that we have, you
 


3/22/2017 Status Conference
 

27 1 
 know, gone through and made sure that the municipal court 


2 
 staff is not performing prosecutorial duties, and so we've 


3 
 designated one municipal court clerk to operate exclusively as 


4 
 the assistant for the prosecutor, and that court clerk is 


5 
 separate from the other court clerks. She works on a 


6 
 completely different schedule than the other court clerks, and 


7 
 so we've done that to try to show, you know, our good-faith 


8 
 compliance with that particular provision because we believe 


9 
 it's important. 


10 


And also, on the municipal side, municipal court 


11 
 side, we have -- so in the works right now is an app that is 


12 
 called Your St. Louis Courts, and what this app will do -- it 


13 
 will kind of be -- I guess I would describe it as the CaseNet 


14 
 for municipal courts, right, and so what it will do is it will 


15 
 give applicants the opportunity to access one database for all 


16 
 of their municipal court charges around the entire -­


17 


THE COURT: Oh, in all of St. Louis County, you mean? 


18 


MR. CAREY: Yes, ma'am. Yes, ma'am, in all of 


19 
 St. Louis County. 


20 


THE COURT: How many people participate in this? 


21 
 Everybody in St. Louis County? How many municipalities? 


22 


MR. CAREY: Well, right now, it's being worked on by 


23 
 the presiding judge of St. Louis County Circuit Court. 


24 


THE COURT: Okay. 


25 


MR. CAREY: And it's going to be one that covers all 


1 municipalities.

3/22/2017 Status Conference
 28

2

THE COURT: Okay. Yeah.

3

MR. CAREY: And so we believe that particular app -­

4 and I was told by our municipal judge, who is -- I think he

5 may be part of a committee that's helping to help develop

6 this -- that, you know, we could expect that maybe sometime in

7 the next 60 to 90 days, and so we think that will be a crucial

8 part of helping us comply with the Consent Decree with regard

9 to the transparency, the ease of access of our citizens to be

10 able to access their charges and those types of things.

11

So that's, Your Honor, kind of an example of what we

12 have done for purposes of the municipal court side, and so,

13 you know, again, we make no -- I mean I think the Department

14 of Justice is completely accurate when they say there's just

15 work to be done. We have four people who consistently work on

16 the Consent Decree on a daily basis. Only one of them is

17 completely 100 percent dedicated to the Consent Decree. So as

18 you can imagine, the rest of us who are working in the Consent

19 Decree with everything else we've got to do in terms of

20 running the City -- the process takes some time, and we have

21 been -- you know, the City has kind of been taking a bath in

22 the court of public opinion with regard to this, you know, the

23 issue of the deadlines and this type of deal. Well, you know,

24 as far as the parties are concerned, you know, we believe

25 significant progress is being made, and we believe that, you

3/22/2017 Status Conference
 

29 1

 know, the course of action that we've taken so far is the
 


2

 right course of action to take because instead of -- you know,
 


3

 when myself and Commander McCall first came on, we were five
 


4

 or six months already into the effective date, and we had a
 


5

 180-day deadline for maybe 52 different reasons, and so, you
 


6

 know, as opposed to going through those, you know, quickly and
 


7

 haphazardly, you know, the parties agreed to, you know, "Let's
 


8

 slow down and get this right" versus, you know, "Let's just,
 


9

 you know, pump out the policies" and that type of deal. So we
 


10
 
hope that both, you know, in this court and in the court of
 


11
 
public opinion that we would be judged off of the quality of
 


12
 
what we do and our dedication to try to get this right versus,
 


13
 
you know, being judged by, you know, the letter of the
 


14
 
deadlines that are in the Consent Decree because I think the
 


15
 
parties have decided to do things the right way.
 


16
 


So that's pretty much all I have to say.
 


17
 


THE COURT:
 A
ll right. Thank you.
 


18
 


MR. CAREY:
 Y
ou're welcome.
 


19
 


THE COURT:
 O
kay. Mr. Ervin, I'll hear from you as
 


20
 
the Monitor.
 


21
 


MR. ERVIN:
 T
hank you.
 


22
 


THE COURT:
 I
 don't know if you talk as fast as the
 


23
 
other two, but you all have covered a lot of territory here.
 


24
 
Thank you. Go ahead.
 


25 


MR. ERVIN: Thank you very much.
 


3/22/2017 Status Conference
 


30

1 


Your Honor, I should start at the beginning by 


2 
 acknowledging the presence of several members of the 


3 
 Monitoring Team with me today. 


4 


THE COURT: Yes. 


5 


MR. ERVIN: Sam Rosenthal, my partner at my law firm 


6 
 in Washington. Kim Norwood, who's locally based. And Delores 


7 
 Jones-Brown, another member of the Monitoring Team. 


8 


Natashia Tidwell had been here this week for certain 


9 
 Consent Decree-related duties, about which more later, but she 


10 
 could not join us for the hearing today. 


11 


So I wanted to make sure I began by acknowledging 


12 
 them. 


13 


As you suggested -­


14 


THE COURT: I'm sorry I didn't do that. I saw you 


15 
 all there, and I appreciate your being there. Yeah. 


16 


MR. ERVIN: Oh, no worries, Your Honor. Thank you. 


17 


As you just indicated, I want to try very hard not to 


18 
 be duplicative of what measures Volek and Carey have said, but 


19 
 some degree of overlap, of course, is inevitable. We're 


20 
 commenting on the same things albeit from our differing but 


21 
 complementary perspectives. So I'll be as brief as possible, 


22 
 and I'll also add in -- add some things in certain areas where 


23 
 there are particular things to be added by the Monitor. 


24 


First, I want to begin, as Mr. Volek did, by noting 


25 
 the progress of the City in getting the CRB up and running. 


3/22/2017 Status Conference
 

31 1

 Like he, I was pleased to be present on Monday night at the
 


2

 first meeting of the CRB. That is a signal accomplishment.
 


3

 It's a very important mechanism under the Consent Decree for
 


4

 citizens to be able to hold the police department accountable
 


5

 for the ultimate goal of the Consent Decree -- constitutional,
 


6

 otherwise lawful, and bias-free policing, and so all due kudos
 


7

 to those in the City who made that happen.
 


8



With regard to reports, let me begin with policy
 


9

 review. I always say in these status hearings and during the
 


10
 
course of community meetings I think it's a very good
 


11
 
organizing principle to remind myself and to remind everyone
 


12
 
that there are basically three buckets of responsibilities
 


13
 
under the Consent Decree for the Monitoring Team. One, to
 


14
 
review policies with a view to whether they conform to the
 


15
 
requirements of the Consent Decree, applicable other federal
 


16
 
and state law, and best practices. And a companion to that, a
 


17
 
complement of that is ultimately reviewing training materials
 


18
 
for those same purposes. Secondly, as you heard, conducting
 


19
 
certain evaluations and audits periodically to assess whether
 


20
 
in fact the City is complying with certain provisions of the
 


21
 
Consent Decree. And then also carrying out certain outcome
 


22
 
assessments to determine whether the effect of all of that is
 


23
 
the effect that we want to see, both with regard to the police
 


24
 
department and also, I hasten to add, the municipal court
 


25 
 system.
 


3/22/2017 Status Conference
 


32

1 


And so as you heard and as you will recall, we 


2 
 agreed -- I think this was big progress at our last hearing; 


3 
 before our last hearing, we reported on it -- on a structured 


4 
 way of reviewing policies rather than the ad hoc approach that 


5 
 we had taken to date and a priority order in which to review 


6 
 those policies. We developed -- DOJ took the lead on this -­


7 
 a checklist that the City could use in ensuring in the course 


8 
 of either establishing policies or revising them that those 


9 
 policies conformed to the Consent Decree and law and best 


10 
 practices. And then we agreed on the following priority 


11 
 order, to remind you, namely, recruitment, community 


12 
 engagement, use of force, bias-free policing, accountability 


13 
 in stops, searches, citations, and arrests. 


14 


As you heard with regard to recruitment, we know 


15 
 that, quite rightly, that is a very important priority for the 


16 
 City. We know that there are fewer officers than there were a 


17 
 couple of years ago, three years ago, and it's critically 


18 
 important to fill that gap, but we want to ensure -- we, DOJ, 


19 
 the Monitoring Team, the City, I think it's fair to say, want 


20 
 to ensure that officers recruited are those who are likely to 


21 
 comply with the Consent Decree and the spirit of it, and so 


22 
 we've spent, as you heard, a considerable amount of time on 


23 
 the draft recruitment policy and the companion Background 


24 
 Investigations Manual to guide the conduct of investigations 


25 
 into recruits' backgrounds prior to their hiring. As you 


3/22/2017 Status Conference

33 1
 heard, we had had over the week a sticking point with regard


2
 to the salary survey that is called for under the Consent


3
 Decree, as Mr. Volek reported.


4


One of the things that our meeting yesterday -- all


5
 of us spent the bulk of yesterday having a face-to-face


6
 meeting focused on these policies. One of the things that


7
 yesterday's meeting underscored for me is how fruitful and


8
 productive it is when we are all together face-to-face. As


9
 you know, Your Honor, we do have weekly calls, and those


10
 weekly calls generally focus on policy development, but those


11
 calls are no substitute for face-to-face dialogue and


12
 interaction.


13


THE COURT: And remind me -- and I should have asked


14
 one of the others this -- who participates in the weekly


15
 calls?


16


MR. ERVIN: Invariably, it's Commander McCall


17
 because, as Mr. Carey said, it's he who's principally


18
 charged -- he's the Consent Decree Coordinator. He's


19
 principally the liaison between the City and DOJ and me.


20
 Mr. Carey is always on those calls. Often, Chief Moss and the


21
 city manager, Mr. Seewood, join those calls, but it's always,


22
 at a minimum, Mr. Carey and Commander McCall. From DOJ, it's


23
 generally all -- most members of the DOJ team, and the core


24
 team is the team that you see before you here today, and I am


25 the Monitor's representative for those calls.


3/22/2017 Status Conference


34

1

THE COURT: Yeah.

2

MR. ERVIN: And so, as I say, we made progress on

3 that salary survey. We have agreed now on a definition of the

4 terms there. The City has agreed to provide its analysis of

5 the data that we discovered that they have and to do so within

6 a week or so. So we're hopeful to wrap that up rather

7 shortly. And we have also provided our comments -- the DOJ

8 has and we, the Monitoring Team, has -- on the Background

9 Investigations Manual.

10

At the same time, we've been working very hard on

11 accountability policies, which we've moved up in the hierarchy

12 given how important they are. It has not been mentioned, I

13 don't think, that we have already agreed on a

14 duty-to-report-misconduct policy and also a duty-of-candor

15 policy. Both of those have been implemented. And the

16 duty-of-candor policy's worth has already been proved. The

17 chief can tell you that he has used that policy already to

18 question officers about behavior, and that has resulted in

19 candor on the part of those officers. One would hope that

20 absent that policy officers would be candid, but in the event

21 officers going forward are not candid, that policy can be used

22 to hold them accountable for that lack of candor.

23

In the last few weeks, as you heard, we have focused

24 intensively, and understandably so, I think, on the hardest,

25 arguably, accountability policies, namely, internal

3/22/2017 Status Conference

35 1
 investigations, how those investigations should be conducted,


2
 what the process and procedures for that should be, and also


3
 as a companion to that, a disciplinary matrix which we


4
 envision to be a list of offenses, potential offenses, and a


5
 range of penalties that should be meted out that corresponds


6
 to those offenses. We have exchanged drafts and comments, and


7
 we hope to conclude the process, at least from DOJ and the


8
 Monitoring Team's point of view, in the next few weeks.


9


You've heard that we have prioritized, likewise,


10
 community engagement efforts. We have been -- we, DOJ and I,


11
 had been waiting for some time for a comprehensive list from


12
 the City of all the community outreach activities that the


13
 City has already engaged in. You heard many of them from


14
 Mr. Carey just now. There are many, as you heard. And also


15
 for the City's plan going forward as to further activities to


16
 engage in, and we believe -- we, the Monitoring Team -- that


17
 it is incumbent on us to provide some additional suggestions


18
 to the City as to how it can further its community outreach


19
 efforts, and so members of the Monitoring Team and other


20
 resources that we are aware of external to the Monitoring Team


21
 will -- will begin and intensify -- actually, we've begun to


22
 some degree but will intensify our efforts to be helpful and


23
 constructive in that regard.


24


The second big bucket is the area of evaluations and


25 audits. You heard a little bit about the municipal court


3/22/2017 Status Conference
 36
1 audit. As you heard from Mr. Carey a number of things the 2 City has done already with regard to municipal court reform as 3 he has reported, it's our job as the Monitoring Team to verify 4 that that is in fact the case. I've been working intensively 5 with Ms. Tidwell and Ms. Norwood on this municipal audit. In 6 brief, what I can tell you is that when we were all together 7 in December there were numerous meetings and discussions with 8 relevant personnel, namely, the municipal court judge, the 9 city prosecutor, the county clerk. There were -- in addition 10 to those in-person meetings, we observed or the relevant 11 members of the team observed court proceedings, and likewise, 12 we did the very same thing this week. Ms. Tidwell, 13 Ms. Norwood -- DOJ likewise -- attended court sessions. As 14 you heard, there were additional meetings, and I think it's 15 fair to say now that we, the Monitoring Team, have come to 16 closure on a methodology to audit, literally, provision by 17 provision, those provisions that relate to municipal court 18 reform, how we're going to assess whether each of those 19 provisions is being implemented. In certain instances, it's 20 merely a question; it's a paper exercise of looking to see 21 whether in fact the ordinances that Mr. Carey says have in 22 fact been excised have in fact been excised. In other cases, 23 we're required to hear for ourselves and see with our own eyes 24 whether citizens are apprised of their rights during the 25 course of court proceedings. In other cases, in other

3/22/2017 Status Conference

37 1 instances, we will have to look at certain court files. So

2 the methodology will vary depending on -­

3

THE COURT: Depending on what you're auditing?

4

MR. ERVIN: Depending on what we're auditing.

5

THE COURT: Can you hold on just a second?

6

MR. ERVIN: Sure.

7

THE COURT: All right.

8

MR. ERVIN: But the point is that we are finalizing

9 that methodology, and I should add, by way of ending this part

10 of the discussion, that there will be a timeline for each

11 provision as to when we will conduct the audit. In certain

12 cases, it will be a one-time thing because of the nature of

13 the provision. In other instances, depending on the nature of

14 the provision, it will require for periodic recurring review,

15 but more to come on that.

16

The other audit that we have begun to think about, in

17 fact begun to work on, again, subject to a methodology that

18 has to be -- as Mr. Volek, I think, said -- has to be approved

19 ultimately by DOJ and by the City before moving forward

20 formally, is one about police staffing. We -- Commissioner

21 Davis, who's a member of the Monitoring Team, the former head

22 of the Boston Police Department and the Lowell Police

23 Department in Massachusetts, Ms. Tidwell, who was a police

24 officer in Cambridge, Massachusetts, are leading this effort.

25 The premise, the hypothesis behind that work is whether -­

3/22/2017 Status Conference

38 1 despite the relatively low number of officers vis-a-vis August

2 of 2014, there are certain changes in policies and procedures

3 and, perhaps, certain changes in the schedule that officers

4 used that, nonetheless, despite the small numbers, could be

5 used to free up officers to engage in community policing. For

6 example, do officers have to respond, as they had been doing,

7 each time there is a call, a sick call, a call for help

8 because someone is in some kind of physical distress? We

9 question whether that's necessary, and so there have been

10 discussions about that, and we're hopeful that we can report

11 publicly soon some progress in that regard with regard to

12 policies like that and also schedule because we know how

13 important it is to have additional officers and to employ the

14 officers that we presently have for crime fighting and

15 community policing, and by the way and importantly, we think

16 the two can and should go hand in hand.

17

In terms of outcome assessments, as I mentioned at

18 the last hearing, we, the Monitoring Team, have been very

19 focused -- and I know that this is a subject of considerable

20 and understandable public interest -- on the community survey

21 that is called for in the Consent Decree. There is also a

22 police survey that is called for in the Consent Decree. The

23 good news is, as Your Honor knows, we have -- we, the

24 Monitoring Team, have drafts -- we think very good drafts -­

25 of both those surveys.

3/22/2017 Status Conference


39

1

My hope and intention had been to administer that

2 survey some time back over the course of the holidays. Part

3 of the sticking point there was that there -- it wound up

4 being the case that there were fewer volunteers -- I'd hoped

5 to get student volunteers to help administer the survey -­

6 than I had anticipated. The good news since, though, is that

7 there have been a number of positive developments. I am

8 authorized to say that the Ford Foundation has agreed to give

9 a $100,000 grant, not to the Monitoring Team, I hasten to add,

10 but to help underwrite the work of administering the survey by

11 some third-party entity and then to analyze the survey. More

12 to come on that.

13

And what I envisage once we administer it -- and I

14 hope to do that during the course of the spring as soon as

15 possible. There are some additional details to be ironed out.

16 We envisage a mix of methods to distribute the survey so as to

17 maximize, hopefully, the number of people who respond to it,

18 especially in hard-to-reach populations. So mailing the

19 survey, emailing the survey for those for whom the City has

20 email addresses, texting the survey or at least a link to the

21 survey, having the survey available on our website, the

22 Monitor's website, on the City's website, having physical

23 copies of the survey available for distribution at government

24 buildings, at public gathering places, and then using the

25 relatively few resources we have. I since have gotten about

3/22/2017 Status Conference

40 1 five students, I think, from Washington University Law School.

2 Coincidentally, the City has an internship program, I learned,

3 and those interns, I have been told by the City, can be made

4 available to help on this project. So there would now be

5 about 10 people who can help to administer this door-to-door

6 in apartment complexes, for example, and other areas so as to

7 reach or try to reach the hard-to-reach population so as to

8 maximize our responses. So I hope to have more to report on

9 that to the Court and to the public in short order. And after

10 we do that, we will, of course, analyze that survey and turn

11 our attention to the administration of the police survey.

12

In terms of the other major outcome assessment that's

13 called for in the Consent Decree -- and that is determining

14 whether the police department and the court system has the

15 information necessary for us to determine whether people are

16 being disproportionately affected in a negative way based on

17 protected characteristics, like race, for example -- our

18 ability to assess that depends, of course, on whether the data

19 exists, whether the City is capturing that data, and if so,

20 whether we can extract that data for our analysis. We've

21 been -- we, the Monitoring Team, have been challenged in that

22 regard over the months. The system that the City uses -- and

23 I think the City would be the first to acknowledge this -- ITI

24 has its challenges. There is a group on the Monitoring Team.

25 Your Honor will recall FRA, Forensic Risk Alliance, whose

3/22/2017 Status Conference

41 1 expertise lies in this area, and there is good news to report.

2 I am told by FRA that ITI does contain data as to certain

3 protected characteristics, namely -­

4

THE COURT: Yeah. So let me back up -­

5

MR. ERVIN: Sure.

6

THE COURT: -- because I'm losing you in some of the

7 acronyms. ITI is the actual system that the City uses to

8 monitor its -- its -- or to keep track of arrests -­

9

MR. ERVIN: Police department statistics.

10

THE COURT: -- arrests and -- arrests and charges and

11 things like that?

12

MR. ERVIN: That's right.

13

THE COURT: Right.

14

MR. ERVIN: And there's a separate one for the court

15 system. We've focused to date on the police department.

16

THE COURT: Right. The ITI is the police one?

17

MR. ERVIN: Yes, that's right.

18

THE COURT: Okay.

19

MR. ERVIN: And the good news, as I say, is that FRA

20 has determined -- FRA is Forensic Risk Alliance; it's part of

21 our team -- that ITI contains data as to certain protected

22 characteristics, namely, race, skin color, gender, and age,

23 but not gender identity, sexual orientation, and disability.

24 We have not been able -- did you have a question about that,

25 Your Honor?

3/22/2017 Status Conference


42

1

THE COURT: Well, no. I'll hear what you have to

2 say. Those are harder things to -- you have to ask people.

3 Right?

4

MR. ERVIN: Indeed so. Much harder. That's quite

5 right. Also, we have not been able to determine whether ITI

6 captures data explicitly related to First Amendment political

7 activities that are protected, complaints against FPD,

8 individuals in crisis, internal investigations, appeals from

9 supervisors, or use of force. So we've not been able to

10 determine that. We're going to continue our efforts to see

11 whether it contains that data. If it does not contain that

12 data, then we'll have to -- we'll have to make a judgment

13 about that and see whether there are other external resources

14 that could be helpful in that regard. I'm not authorized at

15 this point to go into much detail, but there are a number of

16 outside groups that I have been consulting in recent weeks,

17 and we think that one of those groups may have the expertise

18 to be helpful in this regard and might be willing to donate

19 its services to the City of Ferguson to provide that

20 additional help. So more to come on that, we hope.

21

I guess the final thing I would say, subject to Your

22 Honor's additional questions, is to talk a little bit about -­

23 and Mr. Volek, I think, talked about this -- my own and the

24 Monitoring Team's own community outreach efforts. It's

25 critically important that the Monitor himself and the

3/22/2017 Status Conference

43 1 Monitoring Team do our own community outreach. We are the

2 community's tool to ensure, through an independent, impartial

3 voice, that the provisions of the Consent Decree are

4 implemented and if the provisions of the Consent Decree are

5 not implemented duly to report that to the Court and to the

6 public, and we take that obligation seriously.

7

And so, of course, I do not live in Ferguson or the

8 St. Louis area, and I'm constrained in how often I come

9 because of other commitments. I made a commitment early on to

10 come often, in addition to the status hearings, to do so about

11 every six weeks. I have not been doing that in part because

12 we have a local representative now in Ms. Norwood and also

13 because we have been focused so much in the last few weeks and

14 months, productively, I think, on the policy review process.

15 Having said that, last night, I did participate in a town hall

16 meeting, and I have resolved to do a town hall meeting, as

17 opposed to individual meetings, every single time I come to

18 Ferguson and, in fact, to come, starting now, every six weeks.

19 So you can expect to see me, Your Honor, if you wish to do

20 that during the course of those visits or at least to know

21 that I will be here on such a basis and make myself as broadly

22 available to the community as possible.

23

One of the perennial issues -- and I have discussed

24 this with Your Honor, and I'll close with this -- here is that

25 it's wonderful that I'm talking to people in the room, but the

3/22/2017 Status Conference

44 1 people I most need to talk to are not in the room, and so I am

2 looking for input as to how to reach people who are not yet

3 engaged in the process, and I've already gotten a number of

4 community suggestions in that regard, as you might imagine,

5 and I'm looking for additional ones, and I will redouble my

6 efforts to reach out to those who most need to be heard from

7 because they are rarely heard from, if ever.

8

That concludes my remarks, Your Honor.

9

THE COURT: All right. Thank you.

10

MR. ERVIN: Thank you.

11

THE COURT: In terms of the outreach, I know that

12 more could be done and I know that was -- in some of the

13 letters I received, those were some of the concerns of the

14 people who had asked to speak, and perhaps they'll have more

15 to say.

16

I did want to make sure that everyone knows that this

17 court has a website. It is www.moed.uscourts.gov. Right? Is

18 that right? I should know it. I look at it all the time.

19 It's not as snazzy as a lot of websites that people are used

20 to surfing because it doesn't -- it's not snazzy. We're the

21 court. We're boring. So -- but it does have a link, and if

22 you go on the left side to links, there's a place where it

23 says United States of America versus City of Ferguson. That's

24 the link to this case, and if you look at that, it has the

25 orders I have entered in this case, including the order

3/22/2017 Status Conference
 

45 1

 setting the next status hearing. It has the transcripts of
 


2

 the hearings we've had in the past. It has, of course, the
 


3

 Consent Decree. It has -- but it has all of the transcripts
 


4

 that we've had, and then it's got things back to when we did
 


5

 it. It also has contact information for the Monitor,
 


6

 including address, phone number, email, and for each of the
 


7

 lawyers who has entered an appearance in this case, that is
 


8

 for the Department of Justice and for the City. So, you know,
 


9

 that's what we have on our court's website, and like I say, I
 


10
 
know it's not flashy like other websites, but it's there and
 


11
 
it has the information.
 


12
 


So I would encourage everybody to look at that, and I
 


13
 
will -- as everybody has problems, there have been times we
 


14
 
haven't kept it up-to-date as quickly as we should have. It's
 


15
 
up-to-date now, and we will keep it up-to-date from now on,
 


16
 
including posting the transcript of this hearing in a few -­


17
 
when we get it done. It'll be -- it won't be immediately, but
 


18
 
we will have it posted.
 


19
 


I will also try to provide further notice about the
 


20
 
procedures for the June meeting and what people should do, but
 


21
 
when we have that June status conference, my intention is that
 


22
 
people can speak, that we would limit each person to five
 


23
 
minutes, and that you just need to show up ahead of time and
 


24
 
sign up. I would ask that you speak about things that have to
 


25 
 do with the Consent Decree. It's not an open forum for all
 


3/22/2017 Status Conference
 

46 1

 purposes. It has to do with the Consent Decree, the things
 


2

 that are within the Court's power and within the Consent
 


3

 Decree. You know, so I'm not -- it's not a political forum,
 


4

 you know, but I think -- you know, I think that the last time
 


5

 we did it, it was very productive, I think, and worked fine,
 


6

 and so we'll do something similar.
 


7



The Monitor also has a website, and there is a link
 


8

 to that in the text in our Court's website, and obviously,
 


9

 everyone should look at that, and it's called
 


10
 
fergusonmonitorship.com.



11
 


And the City, of course, also has a website. And,
 


12
 
Mr. Carey, I neglected to check your website again, the City's
 


13
 
website again today, but I would urge the City to have as much
 


14
 
information as possible about this process, and if you don't
 


15
 
have it there already -- I know the last time I checked it I
 


16
 
didn't think it had as much information as it might have.
 


17
 


And in particular -- and I haven't told the lawyers
 


18
 
and Mr. Ervin this yet, but I would ask that every time I do
 


19
 
issue an order setting out a hearing or every time we do post
 


20
 
a transcript online that you add that to your websites. I



21
 
know, as lawyers, you don't want to do that; you're hesitant
 


22
 
to put stuff the court gave you out on the website, but I
 


23
 
would say if I'm entering an order setting hearings or the
 


24
 
transcripts, you should put those on your websites too so that
 


25 
 people can have more access to them.
 


3/22/2017 Status Conference
 


47

1 


So that's -- I know I'm not a community outreach 


2 
 expert. Normally, the courts don't do anything except we're 


3 
 public. That's what we tend to do. But I do want people to 


4 
 reach -- you know, to know what we're doing. This should be a 


5 
 transparent process. 


6 


So I hope that will help somewhat in people knowing 


7 
 what's going on and being involved. And, of course, the main 


8 
 involvement that people can have is working with the City and 


9 
 all these various organizations and task forces. 


10 


I'm pleased to hear that the City has worked with a 


11 
 group to try to encourage formation of community 


12 
 organizations. It's been my experience -- and I mentioned 


13 
 this at the last conference -- that community organizations 


14 
 can be a very helpful way of getting things done, but, of 


15 
 course, it requires members of the community to go to the 


16 
 meetings. They don't generally work when they're set up by 


17 
 the City. They work when they're set up by the people. And 


18 
 so I hope that for the neighborhood groups and things like 


19 
 that, that the people will get involved and will do what they 


20 
 can to set them up. And to the extent the City or others, the 


21 
 Department of Justice, can assist in that, that's great, but 


22 
 when we're talking about a community organization, that ought 


23 
 to be the people doing the work. And unfortunately, as we all 


24 
 know, sometimes those processes are messy because people don't 


25 
 always agree with each other, and that's part of the job of 


3/22/2017 Status Conference

48 1
 trying to get yourself organized is to talk and work through


2
 your agreements and disagreements.


3


And I hope that -- you know, as the Court in this


4
 case, I'm not -- it's not my role, you know, to say, well,


5
 this person should be the head of this group, whether it's one


6
 of the groups listed in the Consent Decree or otherwise, or I


7
 think you should organize it that way. My official role is to


8
 see that the Consent Decree is complied with and that my


9
 orders are followed because that's what courts do. If I can


10
 help, I want to help, but I also am not -- I'm not the


11
 community organizer. I'm the judge, and really all I can do


12
 fully is, you know, see to it through this process and others


13
 that the public is informed of what the court is doing -- and


14
 we have these conferences so that the public can know as well


15
 as me knowing -- but also that the decree is complied with.


16
 Most of the work is not anything that I can or should be


17
 involved in.


18


I'm not a part of the case. I'm not a party to the


19
 case. The parties are the Department of Justice and the City


20
 of Ferguson. The community has a huge interest in seeing that


21
 this is complied with, as do I, but, you know, I am an


22
 independent -- I'm neutral in all this. All I'm doing is


23
 following the law, and so that's all I can do.


24


For members of the community who are here, I


25 appreciate your being here, and I don't know if any of you all


3/22/2017 Status Conference

49 1 are following the Supreme Court hearings that are going on

2 right now or the confirmation hearing for the person who's

3 been nominated to be on the U.S. Supreme Court. He's been

4 making a lot of statements about the role of judges, and

5 although it's very frustrating, I know, for people to sit

6 there and say, "Well, we want you to tell us how you're going

7 to rule on something," the statements about the role of

8 judges -- and if you look at the history, this is what the

9 Supreme Court justices have been saying in all their

10 nomination hearings or their confirmation hearings. They

11 never tell you how they're going to rule on anything. But

12 that's because that's our job. Our job is to be neutral.

13 When I talk to a jury, I tell them my job is to provide a

14 level playing field. That's really our job.

15

So, in this case, my job is also to make sure that

16 the Consent Decree that was entered, which is a judgment of

17 this court, is complied with, and that's an important job, but

18 it's not to be an advocate for one side or the other. It's to

19 make sure that the law is followed, and that's really all

20 we're doing. So I hope you understand that, and I hope the

21 people who aren't here today but who have an interest in this

22 also understand that I can't -- I'm not here to just be a -­

23 solve all the problems. Really, you guys have to solve the

24 problems, but I'm here to make sure the Consent Decree is

25 complied with because that's really my role.

3/22/2017 Status Conference


50

1

And I am going to start trying to talk to the lawyers

2 and the parties. They're having weekly telephone calls, and I

3 may participate in those once in a while. I won't necessarily

4 do it all the time but just so I can make sure they're doing

5 what they need to do.

6

Similarly, I will try to have opportunities for

7 public comment at these hearings, but it won't necessarily be

8 at every status hearing. But everything we do is public. It

9 is all on the court's website. It's in the court docket

10 sheet, the file. I'll put the major things up, but if there

11 are things you want to know more about and they're not on the

12 public websites, they're in the court file, and they are

13 available to the public. Everything filed in the court,

14 unless it's filed under seal -- and there's nothing filed

15 under seal in this case except for some home addresses -­

16 is -- but everything else is in the public documents, and

17 that's true of all cases.

18

The court's open to the public. So, you know, you

19 can go to the clerk's office and look at the case file if you

20 don't want to pay. There's a fee because -- because the

21 courts -- we have to charge a fee if you look at the docket

22 sheets of our cases because otherwise we don't have money to

23 run our computers because Congress decided the best way for us

24 to have a computer system was to charge a user fee, and so

25 that's what we're doing. So I know people hate it, and I

3/22/2017 Status Conference

51 1
 apologize, but that's not my -- that's at a much higher level


2
 than me, but the stuff I think is really important in this


3
 case that you all need to know and that should be given to the


4
 public, I'm putting on the public website so there's no fee


5
 for that. But if you want to look behind that and look at the


6
 actual docket and the filings themselves, you can come to the


7
 clerk's office and look at the public terminal, and you won't


8
 be charged for looking at that. If you do it at home, you may


9
 have to have a PACER account.


10


Parties, Mr. Volek, anything further from the


11
 Department of Justice?


12


MR. VOLEK: Nothing for us, Your Honor.


13


THE COURT: Mr. Carey?


14


MR. CAREY: No, ma'am.


15


THE COURT: Mr. Ervin?


16


MR. ERVIN: Nothing, Your Honor.


17


THE COURT: Thank you, all. And so I will see you


18
 again on June -- I have it right here. I set it. I just told


19
 you it was on the website. The next hearing, which is June -­

20
 is it -­

21


MR. ERVIN: 22nd.


22


THE COURT: -- 22nd? Yeah, so that's three months.


23
 And at that hearing, I will hear from members of the public.


24
 It will probably -- I don't know if it will be in this


25 courtroom. We might move it downstairs to the larger


3/22/2017 Status Conference
 

52 1

 courtroom in anticipation of other people, of there being a
 


2

 bigger crowd. So do check the court's docket and the postings
 


3

 downstairs to see which courtroom it will be in.
 


4



Yes, Mr. Carey.
 


5



MR. CAREY: Your Honor, actually, we have something
 


6

 on that issue. I saw something, and I can't remember if it
 


7

 was a court procedure or something. That had to do with when
 


8

 the public wants to speak at the hearing -­


9



THE COURT: Yes.
 


10
 


MR. CAREY: -- the parties are then given an
 


11
 
opportunity to be prepared, basically, to respond or
 


12
 
something.
 


13
 


THE COURT: Yeah, to know what topics. Would you
 


14
 
like to have an idea of what topics people want to talk about?
 


15
 


MR. CAREY: Yeah. I think there's a procedure that
 


16
 
the court has that will allow us because if there is, you
 


17
 
know, some questions or something, it would be nice for the
 


18
 
City and maybe the Department of Justice too -- I don't want
 


19
 
to speak for them, but at least from the City perspective, to
 


20
 
be able to be prepared for that pursuant to that court
 


21
 
procedure.
 


22
 


THE COURT: Yeah. I know we have talked about that
 


23
 
before. When we had the initial hearing to approve the
 


24
 
Consent Decree, the proposal was that people -- from the
 


25 
 parties to the case -- was that people who wanted to speak
 


3/22/2017 Status Conference

53 1 would tell us ahead of time and would have to tell us what

2 they wanted to talk about, and I know that would be very

3 helpful for the parties. I'll take that under consideration

4 and think about doing that. I also don't want to make it

5 overly burdensome, and I also want to, you know, remind people

6 that, you know, what is filed in the court file is public, and

7 so when people -- I mean, on the one hand, we won't take

8 anything that's anonymous. On the other hand, if you put your

9 address and phone number on there, it's in the public, and it

10 is out on the Internet, and so, you know, that's not something

11 most people want to do, and frankly, we don't think you should

12 do it. So I'm hesitant to tell people just to start filing

13 stuff or sending things up. But let me look at it, and I'll

14 see if there's a way that is reasonable and accessible that we

15 could do that so you'd have some notice.

16

MR. CAREY: Thank you, Your Honor.

17

THE COURT: Otherwise, I suspect most of the things

18 people want to talk about will be things that the City and the

19 Department of Justice have already heard about because they've

20 come and complained to you, and if not, I would hope that you

21 all would -- that people would talk to the City about what

22 they want. But, yeah, I'll see if I can think of a way

23 that -- I'll try to come up with a procedure that would be

24 fair that would give some notice to the City and the parties

25 to the case without unduly restricting people's opportunity to

1

 speak.
 


3/22/2017 Status Conference
 
 54

2



MR. CAREY: Thank you.
 


3



THE COURT: All right. I will thank you, all, for
 


4

 being here, and I will see you in three months and be talking
 


5

 to some of you sooner than that, and court is in recess.
 


6



(Proceedings concluded at 3:29 p.m.)
 


7



8



9



10
 


11
 


12
 


13
 


14
 


15
 


16
 


17
 


18
 


19
 


20
 


21
 


22
 


23
 


24
 


25
 


55 CERTIFICATE
 

I, Gayle D. Madden, Registered Diplomate Reporter and
 
 Certified Realtime Reporter, hereby certify that I am a duly
 
 appointed Official Court Reporter of the United States
 
 District Court for the Eastern District of Missouri.
 

I further certify that the foregoing is a true and
 
 accurate transcript of the proceedings held in the
 
 above-entitled case and that said transcript is a true and
 
 correct transcription of my stenographic notes.
 

I further certify that this transcript contains pages
 
 1 through 54 inclusive.
 

Dated at St. Louis, Missouri, this 29th day of March,
 
 2017.
 

_________________________________ /s/ Gayle D. Madden
 

GAYLE D. MADDEN, CSR, RDR, CRR
 
 Official Court Reporter
 


 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff, v.
THE CITY OF FERGUSON, Defendant.

)

)

)

)

)

Case No. 4: 16 CV 180 CDP

)

)

)

)

)

ORDER

This case is set for a status hearing on Wednesday, March 22, 2017 at 2:00 p.m.

in Courtroom 14-South. The purpose of the status hearing is to provide the parties and

the Monitor with an opportunity to update the court on the status of the implementation

of the Consent Decree.

Some members of the public have asked to speak at the upcoming status hearing.

The Courts are open to the public and in this case, as in all cases, the public is

encouraged to attend and observe court hearings. In most cases, only the lawyers for the

parties to the case are allowed to speak and participate; all others are simply observers.

Here, the parties are the Department of Justice and the City of Ferguson; under the

terms of the Consent Decree, the Monitor also reports to the Court, including speaking

at the status hearings.

At the initial hearing in this case to consider whether to enter the Consent Decree,

the Court allowed public comment, recognizing the public interest in the case. I

continue to recognize that interest, and so it is my intention, from time to time but not

necessarily at all status hearings, to allow limited public comment. Although I will not

allow public comments at the hearing next week, I will set aside time at the following

status hearing for public comment. This order schedules that next hearing for

Thursday, June 22, 2017 and sets the ground rules for public comment.

Accordingly,

IT IS HEREBY ORDERED that at the status hearing scheduled for March 22,

2017 at 2:00 p.m., the Court will hear only from the lawyers for the Department of

Justice, the City of Ferguson, and the Monitor, Clark Ervin.

IT IS FURTHER ORDERED that the next status hearing is set for

Thursday, June 22, 2017 at 2:00 p.m. in Courtroom 14 South. Members of the

public who wish to speak may do so by appearing at Courtroom 14 South between 1:30

and 1:50 p.m. on the day of the hearing to register. Counsel and parties to the case will

be given the opportunity to speak first. Statements by members of the public will be

taken in the order the person signed up and will be limited to five minutes each. All

persons speaking must speak from the lectern, state their names, and direct their

comments to the Court.

Dated this 14th day of March, 2017.

_______________________________ CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE

2

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF FERGUSON, MISSOURI,
Defendant.

No. 4:16-CV-180-CDP

STATUS CONFERENCE
BEFORE THE HONORABLE CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
SEPTEMBER 19, 2017

APPEARANCES: Monitoring Team For Plaintiff:
For Defendant:

Natashia Tidwell, Esq. HOGAN LOVELLS US LLP
Jude J. Volek, Esq. Amy Senier, Esq. Sharon I. Brett, Esq. UNITED STATES DEPARTMENT OF JUSTICE
Aarnarian (Apollo) D. Carey, Esq. LEWIS RICE LLC

REPORTED BY:

Gayle D. Madden, CSR, RDR, CRR

Official Court Reporter

United States District Court

111 South Tenth Street, Third Floor

St. Louis, MO 63102

(314) 244-7987

(Produced by computer-aided mechanical stenography.)

(Proceedings commenced at 1:03 p.m.) THE COURT: All right. Good afternoon. We are here
in the case of United States of America versus the City of Ferguson. This is Case No. 4:16-CV-180, and we are here for our quarterly status conference.
The United States is here through Mr. Volek, and let's see. Would you each introduce yourselves, Mr. Volek, starting with you and your team?
MR. VOLEK: Jude Volek for the United States. THE COURT: All right. MS. BRETT: Sharon Brett for the United States. THE COURT: Ms. Brett. MS. SENIER: Amy Senier for the United States. THE COURT: Ms. Senier. MS. SENIER: Yes. THE COURT: And for the City of Ferguson? MR. CAREY: Apollo Carey, City of Ferguson. THE COURT: All right. And then I have here today on behalf of Monitoring Team Ms. Natashia Tidwell. And before I hear the reports of the parties, I did want to state that I want to thank Clark Ervin for his service on the Monitoring Team and leading the Monitoring Team. He has requested to be relieved of his duties as the lead of the team, and so I appreciate Ms. Tidwell being here today to fill in for him, and I do want to, you know, thank him for the

service he has rendered in this case, and he will not be working on it anymore. And so for today at least, Ms. Tidwell will be reporting for the Monitoring Team.
We have a really good Monitoring Team in this case with many qualified people with different areas of expertise, and so I do not believe that this change will cause any delays or problems.
So I will hear from the parties. Mr. Volek or Mr. Carey, should you go first? Which one of you wishes to go first?
MR. CAREY: Plaintiff, Your Honor. THE COURT: All right. The Plaintiff usually does. So, Mr. Volek, I'll hear from you. MR. VOLEK: Thank you, Your Honor. We appreciate the Court holding these public hearings, and we also appreciate the members of the public who are in attendance today. We know that it's been a difficult time in the region over the last week, but we're grateful that this hearing is being held and that we have this opportunity to update you and the public on the status of the Consent Decree. A year ago, in September 2016, we had our first status conference during which the parties and the Monitor updated the Court and the public on progress on the newly enacted Consent Decree. In the year since that first status conference, the City has worked in good faith to try and

implement the requirements of the Consent Decree, including by bringing on new personnel to take on that task. And the United States and the Monitoring Team have both tried to support the City's efforts by helping with policy development, the delivery of training, and other forms of technical assistance.
We're still very early on in this process, but because of the City's efforts, there are many ways in which police and court practices in Ferguson already do look different than they did a year ago. As we've noted at hearings in the past, progress in some areas has been particularly strong. Progress in other areas has not been as quick as anticipated. In some ways, this is by design. The parties have been mindful throughout this process that the decree can't be implemented at once, and so we've identified priority areas to focus upon. To be clear, however, it does remain the priority of the United States to ensure that each provision of the Consent Decree is fully implemented.
And so today at this hearing, rather than provide strictly an update on the events of the past three months, I'll quickly go through each section of the decree, including key areas of progress and the challenges that still need to be overcome. I'll begin, however, with the last section of the decree that covers monitoring. As that section of the decree makes clear, the Monitoring Team plays a really vital role in

this process by providing technical assistance to the City, assessing the City's efforts, and reporting those assessments out to the public. That credible oversight really is essential to meaningful reform.
And in this case, we're really fortunate to have an excellent Monitoring Team, which has been led by Clark Ervin. As Your Honor has just mentioned, after a year of committed work on the matter, Mr. Ervin has elected to step down, and the Department of Justice wants to express our appreciation of Mr. Ervin and the entire Squire Patton Boggs team for their service, which has really been indispensable in this initial phase of reform.
We're confident that even with Mr. Ervin's departure, the important work of the Monitoring Team will get done without delay. Monitoring Team member Natashia Tidwell has agreed to continue working on developing a strategic plan for monitoring the Consent Decree going forward, and she has already proved an invaluable part of this process. For instance, she designed and began to implement the court audit, the municipal court audit, which hopefully we'll hear about in some time.
Ms. Tidwell and other members of the team remain committed to this process, and as Your Honor mentioned, it really is a terrific team with a diverse range of subject matter experts, and we are confident that the team is in

strong shape as we turn a page and enter the next phase of this process.
I know that one of the Monitoring Team's priorities is issuing public reports on the status of implementation. We look forward to those detailed reports in the near future. In the meantime, we'll now provide our overview of the main areas of progress and the obstacles that we've encountered in each area of the decree. Now, there's 19 sections of the decree, and so our summary will have to be quite brief, but we are hopeful that this brief summary, as it is, is still helpful to the Court and to the public.
Starting with community policing and engagement, this is obviously a central part of the Consent Decree, and there's been real progress in developing both a community policing policy for within the Ferguson Police Department as well as a community outreach plan. Now, the policy sets forth principles of community engagement, and the outreach plan really gets at the specific steps FPD is going to take to ensure that community members are engaged. There's been a solicitation of initial feedback from community groups like the Neighborhood Policing Steering Committee, and that feedback solicitation will continue before these policies and plans go into full effect. In the meantime, I know that the City is working to foster better relationships between the police department and the Ferguson community, including by

creating better opportunities for police and community interactions. So I know that there's been a new "Coffee with a Cop" program that's been put in place that's been helpful at creating those opportunities for interaction.
This section of the decree also contains requirements regarding the Neighborhood Policing Steering Committee, which I've just mentioned. That committee has been formed, and there are many dedicated individuals who show up each month to try to advance the NPSC's mission. As we've learned from our own observations at NPSC meetings and as was made clear through public comments at the last hearing, there are organizational challenges within the NPSC. We're all aware of those. After the June status conference, we've tried to take additional steps to help the NPSC move forward to address those challenges.
Based upon reports from NPSC members, we identified a list of possible resources that could be provided to assist the NPSC with making the organization more efficient. Cost-free resources. At the July 20th NPSC meeting, we offered the NPSC two groups as options to conduct an assessment of the NPSC's needs and identify possible solutions. We also arranged for both of those entities to speak by phone with the NPSC Facilitation Committee in a subsequent meeting.
At its general meeting on August 17th, the NPSC

Facilitation Committee presented a list of possible consultants to assist the NPSC. It appears that the NPSC favors a more local consultant and not the options that we offered, and there are still some things to finalize with that plan, but we're hopeful that at this coming NPSC meeting on Thursday that that plan will be finalized. For our part, you know, the options we presented remain at the ready, and we're willing to help the NPSC however we can, including by helping any consultant that they elect to bring on board.
Throughout this time, members of the NPSC have also been contacting us to offer their comments about how to chart a productive path forward. In order to provide an opportunity for all members of the NPSC to provide that feedback, we've set up an online survey for current and former members of the committee to provide feedback. The survey asks for member insights about the committee's strengths and challenges and recommendations for how to move forward. We received comments from approximately 29 respondents, and once an external resource will be identified to provide assistance, we look forward to using the results from that survey to work collaboratively to address those challenges.
Turning to municipal code reform, not to be confused with municipal court reform, obviously, the Consent Decree contains two different sections. This section is really focused on the Ferguson Municipal Code, and I'm happy to

report that the City has really made significant progress here. There's a number of ordinances that are identified within the Consent Decree, most of which have been rescinded or amended as required by the decree.
There is one additional provision, which is the comprehensive review of the Ferguson Municipal Code. That provision requires the City to come up with a plan to assess the code and make sure that it's in line with community policing priorities and the priorities of the broader Ferguson community. The NPSC, I understand, has a committee that's working on that project and that the -- and I also understand that the City is working to support and participate in those efforts. So we look forward to continued work on that.
Turning to the policies and training section, obviously, every substantive section of the Consent Decree needs to be incorporated into official department policy, and we've been working very hard with the City on developing those policies, and there's been great progress, which I'll report as I go through each substantive section. In general, the process that we've developed has really been productive, and I think that we're in much better place than we were a year ago, and we've reported on that process in the past, but it's very collaborative in the initial stages, soliciting technical assistance from the Monitoring Team as appropriate, and then at the end of that process, the City submits the policy to the

Monitoring Team for review and approval. On the training side of things, the Ferguson Police
Department has designated a training coordinator, which is a positive step, and they've established a Training Committee, which consists of FPD members and members of the NPSC, and they've also verified that new recruits are receiving 900 hours of basic training, which is excellent. Obviously, first come policies and then come training on those policies. So a lot of the progress in the training area still needs to come, but we are encouraged by the progress there.
The next section of the decree covers bias-free policing and court practices, and while the entire agreement is really designed to prevent bias from shaping law enforcement conduct, this section really looks at two specific things -- one, collecting data in order to ensure that bias is not infusing law enforcement practices and, two, bias-free training. As I'll discuss a bit later, data has been a continued challenge for the department, and that's going to be a real focus in this next coming year. The bias-free training is something that has already been delivered to the Civilian Review Board, and so that was a really good way to pilot that program. The reports from that training were very encouraging, and so in the coming year, we look forward to that training being delivered to the entire department.
Next is the stop, search, citation, and arrest

substantive provisions which set forth guidelines for how officers conduct those activities. We have -- the parties have not spent a lot of focus and attention on this area of the decree yet. We focused on some of the other priority areas, including force and accountability, but we look forward to turning to this as soon as the force policies are completed. There has been some progress. We've received a draft of the correctable citations policy. What that policy does is it sets forth a mechanism for people who have equipment violations, for instance, to fix the actual problem that led to the violation instead of incurring fines and fees because of that violation. There is some revision that's required, but we were encouraged to see that draft. There's also been some revision within the department on the practice of using what are called wanteds, which are basically investigatory holds. In earnest, the parties have not done much in this area, but this is the next area of priority.
Turning now to force, in June, we reported that we had worked with the City to draft a revised general order regarding lethal and less lethal force and that we were turning then to drafting policies regarding certain types of force. So there are policies for the use of batons, OC spray, tasers, K-9s. That process is well underway, and we've made really incredible progress thanks in large part to the Consent Decree coordinator within FPD, Commander Frank McCall.

The next step will be to solicit community feedback on those policies and make additional revisions, and we're working on a plan for this stage of the process to ensure that we can solicit community feedback in a productive way. There still needs to be development of policies regarding force reporting and force review. That's a very complicated area. There's a lot of different steps as a force report goes up through the chain of command, and so that's something that we continue to work on. Once those policies are put into place, at that point, we will focus our attention on ensuring officers are trained on those policies appropriately.
Turning to First Amendment protected activity, I know that this is an area of priority for Chief Moss, and he's done some very good work to ensure that officers respond to protected activity in a productive and lawful manner. There has not been any audit conducted yet of this area of the Consent Decree, and there still needs to be some policy development.
The next section is crisis intervention. FPD has designated a crisis intervention coordinator. Just to provide a little bit more context, what the crisis intervention coordinator does is ensure that there's a team that's readily available to respond to individuals in crisis, mental health crisis, and the fact that there's been a coordinator designated allows us to take the next steps required by that

area of the decree, including providing appropriate training and putting together those teams.
The School Resource Officer Program areas of the decree are really designed to rework Ferguson's existing School Resource Officer Program in order to turn it into an opportunity to bridge the divide between police and youth in Ferguson and to avoid unnecessary criminalization of students. The parties have made real progress on the first step, which is developing a Memorandum of Agreement between the Ferguson Police Department and the Ferguson-Florissant School District. That Memorandum of Agreement is in very good shape. The next step, once that's finalized and once that's worked out with the district, is coming up with an actual manual. The manual gets into a bit more detail about the actual activities that school resource officers are expected to take. We look forward to working with community stakeholders as we develop those items.
The next section is body-worn and in-car cameras. Obviously, body-worn cameras are an important tool in accountability. They're not the answer in their entirety, but they are extremely helpful. And, thankfully, through a grant, Ferguson has body-worn cameras at its disposal, and the parties have been working diligently to create an appropriate policy regarding those cameras. As the Court heard at the last hearing, there is also, separate and apart from the

Consent Decree process, a charter amendment regarding body-worn cameras, and we've worked diligently to try and make sure that, where there is no conflict, areas of that charter amendment are incorporated into Ferguson policy. That policy is in the same boat as the use-of-force policies. It's pretty far along, but we'd really like to solicit some community feedback before making those final steps.
The parties have also begun revising the in-car camera policy. So officers will wear body-worn cameras, and also, there will be dash cams for cars, and so the parties are working on that as well. Hopefully, that will be a little bit quicker than the body-worn camera policy. There's a lot of overlap on the issues in terms of retention issues, for example, and so we're hopeful that that process will proceed quickly.
With respect to supervision and performance evaluations and promotions, that has not been an area of focus for us. I know that the department, the police department, has been looking hard at staffing patterns. The Monitoring Team has as well. And I know that there are going to be efforts to look at supervision and staffing to ensure that there's appropriate close and effective supervision as required by the decree. More needs to be done by the parties in this area, but it's something that we look forward to working on in year two.

Officer assistance and support is a really critical element of the decree that ensures that officers and their families have the support that they need. Everybody knows how difficult a job law enforcement is, and so this area of the decree really just seeks to make sure that resources are available to people in the profession. And I know that Chief Moss has made this a priority, and that's been really, really prioritized throughout the whole department, and so we're encouraged by the steps that we've seen thus far. I think that that is, hopefully, something that we can audit in the coming year, that the Monitoring Team can audit to make sure that all the details are being executed appropriately.
The next section is recruitment. The Consent Decree acknowledges that Ferguson can only police constitutionally and effectively if they have highly qualified officers and a sufficient number of them to police in that way, and so there's been a lot of focus from the City, from the department, and from the Department of Justice on this issue. The City has finalized a recruitment plan, which has been submitted to the NPSC for comment, and the NPSC has reviewed it and provided very helpful input, and so the parties are working to incorporate their suggestions, and they'll report to the NPSC at the next meeting regarding what that revised policy looks like.
There is, separate and apart from the recruitment

plan, a Background Investigations Manual, and the City's finalized and DOJ and the Monitoring Team have approved that manual, and Ferguson has begun using that new Background Investigations Manual as a part of the hiring process, and so we're really encouraged by that. Obviously, it's critically important that every officer who joins the force in Ferguson is highly qualified and a suitable candidate for the job.
Part of the recruitment effort to ensure highly qualified officers is ensuring that Ferguson offers salaries that are competitive, and the City has taken really productive steps on that front. There has already been planning for an increase in pay for officers that was discussed at the last hearing. There needs to be a more comprehensive plan, of course, but we've done a lot of work on that front. The City has done a lot of work on that, and we're really in a -- we think that we're in a very good place on that.
The next section of the agreement is supplemental recruit and in-service training. Now, there was a training section before, policies and training section. That just sort of dealt with the general policy and training requirements. This section goes into the specific requirements for each substantive area, so the specific requirements for use-of-force training, for bias-free training, for instance. As I mentioned earlier, obviously, the first step is to come up with policies and then train on those newly revised

policies, and so there's not been that much progress on this area, but that's to be expected. That's how this process was planned.
I do want to highlight one aspect of this, though, that's been really productive, and that is the Blue Courage training that was provided to officers in June. The Office of Justice Programs provided Blue Courage training to the department free of charge. It's a -- the Office of Justice Programs is a component of the Department of Justice. And the reports from that training have been really incredible. Officers seem to have really loved the training, felt that it really addressed a lot of their concerns and also was a great experience for them, and so I think that's going to really help the department moving forward. And we will continue to identify any training opportunities or training resources that we can provide to the department.
Next is municipal court reform. There has really been a lot of focus on this area and really been a lot of progress as well. So the Ferguson Municipal Court is no longer under the Finance Director's domain, and it's no longer under the Chief of Police. The Ferguson Municipal Court reports directly to the City Manager. And, of course, the judge reports directly through the judicial chain in Missouri courts. There is a new judge that's been appointed, Judge Brown, who has really brought a fresh sensibility to the court

that we've witnessed firsthand has been met very positively from members of the community. There's also a new City Prosecutor who has done a very good job from our estimation so far.
THE COURT: Tell me the name of the new City Prosecutor. I think I asked you that before, but I forgot.
MR. VOLEK: It's Lee Goodman, Your Honor. THE COURT: All right. Thank you. MR. VOLEK: So together, the new judge, the new prosecutor, and court staff have really made a lot of key advancements. There's been good progress on ensuring ability-to-pay determinations are provided and that community service options are available. There has been movement on the online payment system, making sure that people have multiple ways of paying their fines. There's been some revisions made to procedures for missed appearances and bond, and there's overall an effort to provide greater transparency. As we highlighted at the last hearing, there's still a real need, I think, to work on the City's website. The City acknowledges that, and I know that they're thinking of how to really address that wholesale. I should say, of course, that in talking through each of these sections, this is our vision or our view of where things are at. Ultimately, it is the Monitor's responsibility to assess compliance, and so while we're providing this update

to the Court, the Monitor's assessment is really what matters, and I'm -- I'm very happy to report that the first audit of the municipal court provisions by the Monitoring Team is underway. Ms. Tidwell was instrumental in developing a methodology for that, for that audit, and we -- through that, Ms. Tidwell has reviewed documents, observed court hearings, and the audit will really help identify which reform areas are working and which still need significant attention.
The next step in this section of the decree is really to focus on the amnesty provisions. The amnesty provisions are designed to provide some relief to people with older cases. There have been a lot of great efforts from the City on this already. There have been literally thousands of cases that have been dismissed. Nonetheless, there are still older cases from before January 1st, 2014, that fall under the amnesty provisions of the Consent Decree, and there needs to be a comprehensive approach to addressing those cases and ensuring that those cases are handled as the Consent Decree envisions. The City Prosecutor, Lee Goodman, has worked to develop sort of a framework for how to review those cases, but that review still needs to happen, and it's one of the more pressing issues that still needs attention.
The next section of the decree is accountability, and what this section acknowledges implicitly is that, you know, we all want a perfect police department but we all realize

that that isn't going to happen, and so the purpose of the decree is to minimize misconduct but also to ensure that misconduct is identified and properly dealt with when it does occur. There have been -- there's been a lot of progress in this area. So the first policies that the parties focused on was the duty-of-candor policy and the duty-to-report-misconduct policy, and those policies are in place. There's an overall internal investigations policy that the parties have reached agreement on, and we've recently solicited and received very helpful feedback from the Civilian Review Board. So we're going to work on incorporating that.
One outstanding issue is making sure that the department has awareness of previous accountability investigations. The department obviously needs to understand the actions of its officers and to ensure appropriate recordkeeping for misconduct investigations going forward, and so that's something that we will work with the department on collaboratively in the very near future.
The next section is civilian oversight. This has been talked about at previous hearings and is a real -- a real asset to the Consent Decree process thus far. Getting the Civilian Review Board in place, there was a lot of work that went into that from the City, and we really commend them for their efforts there. They've drafted a Civilian Review Board ordinance that establishes the board that's consistent with

the decree. The board was formed, and Mr. Carey is in the process of ensuring that the board is fully trained. And so just returning to the accountability policy, we've tried to make sure that the Civilian Review Board is properly looped into the accountability process, and so at this stage, we're really ready for the civilian oversight board to take on its responsibilities and start executing those.
The last section of the decree, substantive section, pertains to data collection, reporting, and transparency, and this -- admittedly, I think everybody's on the same page that this has been a bit of a struggle. Every single system that law enforcement agencies use has its complexities. There has been some recent efforts to bring in another system to bolster the existing system within Ferguson, and we're hopeful that there will be better integration and progress in the coming year, but that's an area of the decree that needs our collective attention.
So I know that was a bit of a whirlwind, and I apologize for that, but we did want to update the Court and the public on -- sort of give a snapshot of where each section of the decree was. We really look forward to the year ahead and anticipate an even more positive report in September 2018, and we look forward to working collaboratively with the City, the police department, and Ms. Tidwell and the rest of the Monitoring Team.

THE COURT: All right. Thank you. Mr. Carey, I'll hear from you on behalf of the City. MR. CAREY: Thank you, Your Honor. Again, as you know, I'm Apollo Carey, here on behalf of the City of Ferguson, and as I always do, I just kind of want to start off by introducing some of the folks -THE COURT: I would appreciate that. Thank you. MR. CAREY: -- from the City that we do have in the audience. You'll see to my left Commander McCall, who is our Consent Decree Coordinator. And you'll see in the middle there is De'Carlon Seewood, who is the City Manager. And of course, the esteemed Chief Moss, Delrish Moss, who is our new Police Chief. And then behind those folks, in the second row, you'll see two of our councilwomen, Laverne Mitchom and Ella Jones, who are here from the City. As you know, every time we have these, we have a big contingent from the City who comes, and they're interested in, you know, our progress. THE COURT: I do appreciate that both from the officials and also from the people on the elected council or aldermen. I think that's very important that they do continue to come, and it shows how interested you are in seeing these reforms go through. MR. CAREY: Right. And we appreciate that, Your Honor. And also just so that, you know, if the Court ever

wants to know what the actual day-to-day face of implementing the Consent Decree looks like --
THE COURT: They're sitting there on the front row. Yeah.
MR. CAREY: -- myself and the front row. THE COURT: Yeah. MR. CAREY: And that's that day-to-day face -THE COURT: Yeah. MR. CAREY: -- in terms of the City's part of implementing the Consent Decree and working with the Department of Justice and the Monitor. So we're all dedicated to that process. So the approach that I'll take here today will not be as global and comprehensive as Mr. Volek. I think he did a great job of presenting a snapshot in terms of where we are globally, but what I'd like to address is kind of, you know, the actual -- some of the nuts and bolts of the work that the City has done since our last status hearing, and that work revolves mainly around municipal court reform as I announced and also as the Monitor announced in our last status hearing. You know, the City of Ferguson had its first audit process under the Consent Decree in August of this year, and so that process entailed a number of provisions of the Consent Decree that were looked at and examined by the Monitoring Team. Now, we have yet to receive the results of that audit

from our Monitoring Team. I know they're hard at work, you know, looking at and analyzing the materials that they've gathered and basically organizing a presentation that they're going to put together for us to kind of let the City know where we are with regard to compliance, but I did want to just kind of let you know, let the Court know and let the public know some of the nuts and bolts work that kind of went into the City's preparation for this audit because that's been our focus, like I said, since our last status hearing.
One of the main provisions that we dealt with with regard to the court audit, the municipal court audit, was paragraph 333 of the Consent Decree, which talks about citation revisions. All right. One of the criticisms we had in the Department of Justice report was that, you know, our citations were not -- they weren't updated; they didn't have the proper information that the citizens needed when they were receiving municipal citations or traffic tickets for, you know, who do they call, where do they call, how do they pay, can they make partial payments, this type of thing. So what we did as part of the Consent Decree implementation process related to this audit -- we simply updated our citation, and we put all that information on the back of our citation. So now every citation that our police officers or municipal officials give out will have on the back the information needed, you know, to give to folks who receive these citations

of where to call, you know, where to pay, how to pay, those types of things, and I think that goes to some of the themes in the Consent Decree about adequate notice and just giving, you know, citizens as much notice as possible about how to resolve some of these municipal complaints because I know that was a theme that the City was criticized for in the report.
THE COURT: And is that also on the City's website? MR. CAREY: It is, yes, ma'am. Yes, ma'am. And a number of the -- well, actually, everything I'm going to talk about today with regard to what we did for purposes of the audit has been updated and placed on the website. Now, I will admit Mr. Volek did say that, you know, our website still is not the most user-friendly website, and we certainly can use some work in terms of making it more user-friendly, but with regard to our obligation under the Consent Decree to post these things on the website, we've done so with regard to what it is I'm talking about here today. Another paragraph in the Consent Decree, paragraph 353, deals with trial procedures, and essentially what the Consent Decree required from the City was to make sure that we had trial procedures that treated our citizens fairly and impartially, and I think there are two kind of themes with regard to that. One was the independence of the City Prosecutor, and the other was the impartiality of the Municipal Judge. Well, as Mr. Volek did say, we've hired, you

know, Judge Brown, we've hired Prosecutor Lee Goodman, and we've implemented these trial procedures designed to make sure that Prosecutor Goodman is independent from the City and also from the Court and that, you know, Judge Brown is adjudicating cases in a fair and impartial manner, not leaning one way towards the prosecutor or towards the citizens. He's just simply following the law, and we think we've taken great strides in doing so by creating this policy or -- excuse me -the trial procedures.
Paragraph 334 of the Consent Decree required the City to come up with a methodology for auditing citations. Essentially, what it was designed to remedy was citations that got to the court that were incomplete, didn't have the correct municipal code violation, or wasn't, you know, signed properly, didn't have, you know, the right information that was needed for the Court to actually process them. So we came up with, basically, a policy that -- you know, what it does is it basically kicks those back down to the police department for further processing and then comes back up to the court, and so we had to put that policy in writing, and that was also part of the audit, the municipal court audit.
Paragraph 341 deals with the uniform fine schedule, and this was pretty much -- this was a simple one, Your Honor. We have -- you know, St. Louis County has a uniform fine schedule for municipal codes violations, and essentially, the

City of Ferguson adopted -- the court issued an order basically adopting the uniform fine schedule. So you don't have in Ferguson fines on the uniform fine schedule that are any different than any other municipality in St. Louis County. It's the same fine schedule for all municipalities, and Ferguson follows that fine schedule.
The court operating rule. Now, the court operating rule actually deals with several paragraphs in the Consent Decree, but recently, there was a court operating rule that the state courts kind of passed down, and all of the various different state courts were made to adopt this court operating rule, and it dealt with basically removing the obstacles to municipal court resolution. This operating rule deals with various different aspects of the municipal court process, notification to folks who receive municipal citations. It deals with, you know, requesting continuances, making those more easy for folks to obtain. So, really, the court operating rule was designed to remove barriers and obstacles to municipal court issue resolution. And I mean I think that's really consistent with, you know, what the whole -- one of the themes of the Consent Decree. And so we've taken steps and submitted that operating rule to the Monitor for feedback.
Again, we did update the website. Some of the updates to the website outside of the ones we've already talked about -- we put our community service and pay option

plans up on the website. So, you know, when someone receives a citation, they can go to our website and find the community service option. They can also find the other pay options. Then there's also a link that links directly to the payment system whereby payment can be made online. And also partial payment can be made online. That was a -- a thing.
THE COURT: That was a big deal in the Consent Decree as I recall it. Yeah.
MR. CAREY: That's right. Absolutely. So we've done that.
The ability to pay or our -- the ability to pay, our indigency form -- we have placed that also online, and so now, you know, folks who may doubt their ability to pay municipal fines can go to our website, download that form, and fill that form out and provide that to the court and have the court make a determination as to their ability to actually pay, and then obviously, you know, if the court does make a determination of indigency or that someone doesn't have the ability to pay, then, you know, we have the option for community service.
I mentioned our online payment system had been revised and also mentioned that we accept partial payment.
One of the other, I think, important parts of the municipal court audit was the City was required to develop good-cause criteria, and this is related to kind of the backlog of cases that Mr. Volek referenced, our pre-January 1,

2014 cases that are, you know, still kind of in the hopper, so to speak. The City is required under the Consent Decree to go through those cases and apply this good-cause standard to, basically, determine whether or not there's good cause to continue prosecuting these cases, and if these cases -- if there is not good cause to continue prosecuting these cases, then the City is required to dismiss them.
You may have, in the news, recently heard about the Fred Watson --
THE COURT: Yep, it was in the news. MR. CAREY: -- yeah, dismissal and that type of thing. Well, those charges were dismissed pursuant to the City's requirements under the Consent Decree. And so, you know, it simply -- it causes our prosecutor to have to basically go through -- now, there are challenges with that because we do have a backlog of -although we've gone through thousands of cases, we have a backlog of thousands of cases, and so -THE COURT: And are these still just -- as I recall from prior hearings being told, they're just really in boxes somewhere; right? Some of them? MR. CAREY: More or less, Your Honor. More or less. There are just -- there are just so many of them, and so we've been charged with developing a process by which and a framework by which to get through those, but of course, we

have one prosecutor, and we -- you know, so we -- the City has to come up with some sort of alternative way of doing so. I can tell you that we have discussed adding manpower to our prosecutorial team to potentially have someone that exclusively focuses on that backlog of cases and applying that good-cause standard to those cases to kind of speed up the process of going through those cases, but the Department of Justice is right, you know, that we do need to take some steps to -- to actually implement the standard that we've developed, and it is rather pressing for us, for us to do so.
I did mention requesting continuances, but I'll mention it again. Again, this is all about removing the barriers to folks being able to request those continuances, and we've developed a new policy and placed that online and also placed that information on the back of the citation, which allows folks to understand what they need to do if they need to request a continuance, how to do so, and we've made it a little bit easier for you to do so. You don't actually have to show up in court to request the continuance.
So from, you know, a municipal court audit standpoint, the City has developed all these policies, implemented all of these various different requirements, and where we are is we're just waiting for the Monitoring Team to respond to those and say, you know, either, "Yes, City, you did this right" or, you know, "You need to do this

differently" or that type of thing. So that's kind of been the focus of the City's
efforts over the last couple months. However, you know, the Consent Decree is vast. So that's not the only thing we have been doing. I won't get into a lot of the policy development and that type of thing that Mr. Volek so aptly covered already, but I will say -- I do want to mention a couple things that we have been working on.
I know at our last status hearing there was some citizen comment, and one of the comments was about the importance of our SRO Program. That's the School Resource Officer Program, and, you know, basically, the citizens were concerned about us focusing some attention on that program. Well, recently, in the last week or so, to be quite frank with you, the City and the Department of Justice have worked together in moving that Memorandum of Understanding between the City and the School District along. We've received recently and approved comments from the Department of Justice with regard to our draft MOU, and we expect in the next couple of weeks or maybe in the next week to be able to provide that MOU to the School District for their feedback. So we have made some progress on that, and I just wanted to make sure we addressed that because that was something specific that was mentioned in the last hearing.
Mr. Volek mentioned staffing and recruitment and

background investigations. I know I can tell you that Chief Moss has been tirelessly working over the last -- you know, since he's been here actually -- to, you know, get good officers, hire good officers within the Ferguson Police Department. Obviously, I know you know --
THE COURT: What's the status of the pay raise? MR. CAREY: Well, the pay raise -- well, was it a six percent? CHIEF MOSS: Seven percent. MR. CAREY: Seven percent across the board is what we did, and that was just part of our -THE COURT: And has that been implemented then? MR. CAREY: It has, yes, ma'am. THE COURT: Yeah. Okay. MR. CAREY: And that was -- you know, obviously, you know, that does -- the City has taken great strides in terms of, you know, compliance with the Consent Decree, but we do need more of an overall plan, but, you know, the Prop P funds helped with that, you know, and our ability to be able to give those raises, and we are in the process of developing, you know, more of a comprehensive plan that will get us up to that average marker that we -- that the parties have decided is where we think salaries should be, and it may be something we have to do in steps, and the Department of Justice has shown 25 willingness to work with us in that regard.

THE COURT: Okay. Thank you. MR. CAREY: But, you know, kind of back to the point I was trying to make about the hiring is, you know, we -- when I first started as City Attorney, I think we were 37, 36, 37 police officers. Chief Moss, how many do we have now? CHIEF MOSS: We're at 42. MR. CAREY: Forty-two. And so, you know, we've gone from, you know, 36, 37 to 42 within the last year or so, and I may be underestimating that, the bottom number there, but I know that the hiring process has just been so -- has been a source of controversy within the City because, you know, we have our citizens who are wanting more police officers on the street, and, you know, we have our council meetings, and they come forth, and they voice their opinion about that, but then we also have the requirements under the Consent Decree that make sure we hire the right people and that make sure we do investigate their backgrounds and make sure that we do take the steps necessary to make sure that we're getting quality police officers and not just putting bodies in uniforms and putting them out on the street. So I'm just -- I'm really, actually, very proud of us for the -- and specifically Chief Moss -- for the work he's put in in moving our department in the direction of -- of, you know, hiring more officers. And what's the capacity? What's the goal, Chief

Moss, with regard to -- 50. So if the goal is 50 and we're at 42, you know, I think we're moving in the right direction.
The last thing I'll mention, Your Honor, is -- and Mr. Volek did touch on this, but, you know, it's something that I have been spending a lot of time on in the last six months -- is the Civilian Review Board, and I'm happy to report that, you know, they are -- we aren't in a situation where -- where -- well, let me say this. They have been fully trained with regard to the requirements of the Consent Decree, and so they are --
THE COURT: They received all that anti-bias training --
MR. CAREY: Yes, ma'am. THE COURT: -- as well as other training; right? MR. CAREY: Yes, ma'am. They've received all of that, and so they are actually ready Consent Decree-wise to actually start hearing complaints as they actually are filed and come in. Now, I will say training is much more of a comprehensive, ongoing thing, and it has to be, and so we have to develop a system to make sure that not only are they getting the training that's required by the Consent Decree but that they get a much broader scope of training. And we're using resources such as NACOLE, which is a national law enforcement civilian oversight organization, and those folks

have been really helpful and really generous with their time and resources to, you know, provide the City guidance, direction, templates, ideas for additional training, and it's really crucial and critical because, as you know, our Civilian Review Board -- some of them will -- you know, some of them will cycle off of the board.
THE COURT: Right. MR. CAREY: And so then we'll have new people come on who will need to be trained. So it's critical that we develop that process, and we've -- you know, by completing training for this inaugural board, we have kind of a template now that we can work with that will help us continue to develop and continue to meet the needs of the board as people cycle off the board and that type of thing. So with that, you know, I think that pretty much concludes my portion of the presentation unless you had any questions for the City. THE COURT: I don't believe I have any additional ones. I mean -- oh, I guess the -- well, I mean you said you know; you're working on it. The issue about the data and the older court files is just a problem, and you're going to keep working on it; right? MR. CAREY: Well, we have to. And like I said, one of the -THE COURT: Yeah.

MR. CAREY: You know, I've had maybe two meetings in the last week with the City Manager about how are we going to address this because the issue with the Watson case, I think, highlights the need for this to happen because if you have these cases kind of sitting out there and we aren't going through them earnestly to make sure that, you know, we try to apply this good-cause criteria to make sure we either dismiss it or keep prosecuting it, then the cases are in limbo and things like this tend to happen, and then you get media coverage, and then all of a sudden, it's blown out of proportion. So it's a pressing need, and it's definitely something that the City is aware of and wants to take immediate steps to try to remedy.
THE COURT: All right. Thank you. MR. CAREY: Okay. Thank you. THE COURT: Ms. Tidwell, I'll hear anything you wish to say on behalf of the Monitor, and I appreciate your being here today to fill in. MS. TIDWELL: Thank you, Your Honor. I just want to echo the comments of Mr. Volek and Mr. Carey that the intention is to move forward with the progress that was made in the first year of the monitorship, and one of the things that the team has prioritized moving forward is building off of some of the work and looking to create a realistic framework for the parties, the City in

particular, as to where we hope to go in year two and beyond. And so developing that strategic plan is one of the things that I'm hoping to start working towards in addition to taking the results of the audit conducted in August and incorporating that into a report to the Court in the next month or so. So those are the -- the most pressing things.
I am hoping that in year two -- I think Mr. Volek identified and talked about each of these topic areas. The parties had agreed on some priority areas for year one. You know, more progress has been made in some than in others, although substantial progress has been made in areas that weren't identified as priorities, like body-worn cameras, the School Resource Officer Program, the municipal code reform, and most significantly, municipal court reform. I'm hoping that even though -- in the areas that are not yet completed, where policy review hasn't been completed, that we can start doing some auditing in those areas just to get a baseline as to where things currently stand, with the police department in particular. So some of those areas include stop, searches, and arrests, just to look at reports and see how things are going now. And so when we start to develop policies and training, we know what are some of the areas and what are some of the knowledge gaps, what are some of the policy gaps, and so just took it as the Monitoring Team just looking at some of those reports that have been generated in the previous years

would be extremely helpful. Similarly, with accountability, we can't know where
we need to go with internal investigations until we look at how internal investigations were done in the past, and so that's an audit area, at least a baseline assessment area that I think the Monitoring Team can look at in year two and including use-of-force reporting. That's an area Mr. Volek spoke of that we're looking to develop policies in that area, but we can certainly take a look at the use-of-force reports as they exist now in the reporting requirements and the review process to, once again, help the City and the police department to build policies and build training that actually speaks to the needs that are already there.
Some of the work that we've done in this since the June status hearing include the police surveys. Some work was done by Delores Jones-Brown, one of the team members, to conduct or to implement or -- what's the right word for -give -- to administer a survey --
THE COURT: Administer the survey. MS. TIDWELL: -- administer a survey for members of the FPD. I think she still has four or five officers who were on vacation during the August administration that she still needs to get to, but she plans to do that in the coming weeks, and so we would be able to report on the results of that survey at that time.

As the parties have identified, I was tasked mainly with the municipal court audit work in August. It began in the spring when the Monitoring Team gave the parties a methodology and a plan and a schedule for how audits would be conducted in the municipal court. Prior to my arrival in Ferguson in, I think, late August, around the 20th, I submitted a plan to the parties that identified the 20 or so provisions that would be audited in August and set out, you know, how I anticipated the City would demonstrate compliance or at least show the work that it has done towards compliance, and so the -- we divided the work into six categories.
There was document review, and those are the policies and procedures that Mr. Carey spoke about.
There was city ordinance review, which, you know, as the name suggests, just there were certain ordinances that the City was required to either rescind or amend as part of the Consent Decree, and most of that work, if not all of it, has been completed.
Database review. And I think everyone has spoken about the challenges that go into review of the ITI database. So some of that work, that audit work, has not been completed. There were some issues regarding making the ITI database available to the Monitoring Team. So we have to sort of iron out those issues.
Website review. Mr. Carey spoke about items being

posted. Mr. Volek spoke about, you know, some of the user-friendliness of the website. So I won't belabor that.
But the most significant parts of the audit, the most intensive were certainly case file review, which was actual identifying cases, particularly, under the amnesty provision of paragraph 326(d) of the Consent Decree that says if a defendant has paid certain amounts in fines and fees related to failure to appear those monies are to be deducted from his balance, his or her balance going forward, and the case either dismissed or the monies owed reduced.
And then some other cases were just dismissed because they were old, and, you know, we certainly had some discussion about old cases. You know, I'll follow up with that a little bit, but those were the kinds of cases that -- the case files that I reviewed.
So in advance of the audit, the Court Clerk has been extremely helpful in now she has identified a unique code for cases where FTA fines were paid, where failure-to-appear fines were paid.
THE COURT: Right. MS. TIDWELL: So that the Monitoring Team can actually look at those and see that the cases have been dismissed or the fines reduced. And so she provided the list to us prior to my coming on-site to Ferguson, and under the auditing methodology, the Monitoring Team would review 10

percent of those cases, one out of every 10, randomly selected. So I provided her with a list of the case files to pull for me to look through, and I did that while we were in Ferguson.
There were substantial amounts of money that were dismissed or reduced during this past six-month period, and the cases that I reviewed indicate that, you know, people -cases have been dismissed altogether or fines have had significant reductions, but the issue remains that a lot -all -- some, if not all, of those cases are pre-January 2014 and need to be assessed under the good-cause criteria that has been identified by the parties and that Mr. Goodman worked with the Monitoring Team to put into place.
The other part of the on-site review included observation of municipal court proceedings, and I would just like to echo what Mr. Volek mentioned that Judge Brown is just a breath of fresh air. Now, it could be -- I didn't monitor or observe any court hearings prior to his appointment to the bench here, so I may be grading on a curve, but I will say that his -- the empathy that he shows to individual litigants -- you know, he addresses everyone individually. They go up to the bench, so it's impossible to hear from the gallery exactly what's going on, but you can read on the faces of the people who appear before him that they feel respected, they feel heard, and they feel like he is really working

diligently to help them resolve their individual cases. So that was part of our observation.
Some of it went into the independence of the City Prosecutor. As Mr. Carey said, there are policies in place that require certain things from the City Prosecutor as to maintaining the Court's independence from him and his independence from the Court. Those provisions have been implemented. They're not all necessarily put into policy.
You know, where Mr. Carey spoke about the policy development, there are several areas where the Consent Decree says this policy is supposed to be developed and implemented in consultation with the Monitoring Team, and so the City has, to its credit, drafted some of these policies, some of which -- one of which was not due to be audited until February 2018, but Mr. Carey was just, you know, so eager to get it done that he got it done early, but now the Monitoring Team needs to work with the City to sort of fine-tune those individual policies.
I think paragraph 353 is one. 341, which deals with the preset fine schedule -- I know that the City has adopted the County's fine schedule, but the Consent Decree specifically says that the fine schedule is to be adopted in consultation with the Monitor and with DOJ and that it's not only to be consistent with county-wide fines but also to reflect a consideration of the relative income level of

Ferguson residents. And, you know, there was a point made by the court personnel that people who are stopped coming in and through Ferguson aren't necessarily Ferguson residents, and so maybe the functionality of setting fine schedules to meet the income levels of Ferguson residents might not be practical, but as the Monitor, we're -- you know, the language of the Consent Decree says that this is what the fine schedule should include. So I would invite the parties, you know, for things like that just to talk those things through because certainly --
THE COURT: Right. MS. TIDWELL: -- there are arguments to be made on both sides. Paragraphs 333 and 334 which deal with the charging documents and citations -- and I should say, Your Honor, that prior to the audit, before my coming to Ferguson for the audit, the City could not have been more collaborative, more responsive to my questions in getting me documents in a timely manner. I know that Christine, the Court Clerk, did yeoman's work in getting case files pulled for me before I was there. Everything was ready for me when I got there. So kudos to them on that point, but I'm not here to be nice, so I have to say, you know, reflect what was there. So some provisions, particularly, where the impact of the operating rule that Mr. Carey spoke of -- it is a

statewide rule that the court in Ferguson has adopted. We, the parties, the Monitoring Team and the parties, will need to discuss how that is -- how that applies to Ferguson specifically and to the provisions of the Consent Decree that the City identified the operating rule as covering because I think there's going to be some room. They need to -- there's going to be some gaps between what the state operating rule has and what the Consent Decree requires, but we can certainly work with them through that, and I think there's no doubt that we can get to where we need to be on those.
So I think that's -- you know, finally, I would say with regards to the good-cause criteria and the amnesty program, to me, that is the most pressing area within the court reform provision process. There are thousands of people who may or may -- may or may not still live in the area that have arrest warrants right now in the -- out of Ferguson, and it's an impediment to their job search, their living. You know, some of them could be living in constant fear that they could be picked up at any time.
When we were there at the court, observing the night court session, there were a substantial number of cases that were pre-January 1st, 2014. So people who had been arrested on warrants who were there in court to appear -- some of them pled guilty and agreed to do community service for their balance owed, but by right, these cases should have at least

been reviewed prior to the litigant coming to court, certainly, before they were arrested.
So I think that viewing these cases one by one as people come through the door is just not going to work. It shouldn't take someone being arrested on a case from 1998 or 2004 for someone to look at their case to see if there's good cause to keep it open. It certainly shouldn't take someone appearing in the New York Times for the City to look at their case. So we really -- you know, I applaud Mr. Carey for trying to figure out how we're going to get this done, but we really need to get this done. I think at last count we were in, you know, the tens of thousands of cases that had open warrants. So I would hope and, certainly, the Monitoring Team is committed to working with the parties and the City to get that done.
And I'll conclude there unless Your Honor has some questions.
THE COURT: No. It's very helpful, and I do appreciate all the work you've done, especially on the municipal court audit work because that's one of the biggest areas where we need to -- where the Consent Decree requires a lot of changes, and so that's very important. So thank you.
MS. TIDWELL: Thank you, Your Honor. THE COURT: Is there anything further from the Department of Justice, Mr. Volek?

MR. VOLEK: Nothing from us, Your Honor. THE COURT: Mr. Carey, anything further from the City? MR. CAREY: No, ma'am. THE COURT: All right. Well, I will simply comment that I think this has been very informative. You've gone through a lot, and I think that you are making good progress. I know there's a frustration level sometimes because it's not all happening as quickly as everybody would like it to happen, but it's a lot of work, and the Department of Justice has said that they believe the City's working in good faith to meet all of these things. We appreciate the things that the City has done, and I think that -- you know, I think we -- we just need to keep doing this work. I mean you all. I say "we." That's a fairly -- you know, that's not so easy, is it, for me to say? Or it is easy for me to say, but, you know, you all need to keep doing the work you are doing, and I think progress is definitely being made. There are obvious steps that need to be taken, but I think that it is -- it is definitely moving in the right direction, and I do appreciate that. I will consult with you all about setting the next quarterly hearing. It will be sometime in December. I will try, to the extent possible, to set it in conjunction with when you might be here for the municipal court proceedings or for other, you know, things where people will be here anyway,

and so I think that is a good way to do it, and I'll let you all know about that. And when I do set an order regarding the hearing, we'll put that on the website as well as sending it out publicly so it is available to the public. And then, of course, I appreciate the City putting it on their website as well so that people know when the hearing will be.
All right. With that said, I appreciate the progress. I want to thank the members of the City policymakers and employees who are here. I want to thank the Department of Justice for sticking to this. I do -- you know, I read something or I heard someone on the news in the last week or so saying the Department of Justice has indicated they're not going to push this as hard as they were, and that's just not true, and I wanted to make sure that everyone knew that Mr. Volek has assured me repeatedly that the Department of Justice is absolutely committed to this process just the same as they were when the Consent Decree was first entered, and I know the City is, and I believe the Monitoring Team is. So we have full commitment from everyone, and I think whoever said that on the news was just somebody talking, but that is something I think that everyone needs to understand that this is -- we are all fully committed to this process moving forward as it should.
Okay. Thank you, all, very much. Court's in recess. (Proceedings concluded at 2:07 p.m.)

CERTIFICATE
I, Gayle D. Madden, Registered Diplomate Reporter and Certified Realtime Reporter, hereby certify that I am a duly appointed Official Court Reporter of the United States District Court for the Eastern District of Missouri.
I further certify that the foregoing is a true and accurate transcript of the proceedings held in the above-entitled case and that said transcript is a true and correct transcription of my stenographic notes.
I further certify that this transcript contains pages 1 through 47 inclusive.
Dated at St. Louis, Missouri, this 29th day of 2017, 2017.
/s/ Gayle D. Madden GAYLE D. MADDEN, CSR, RDR, CRR Official Court Reporter

 
 Case: 4:16-cv-00180-CDP Doc. #: 85 Filed: 03/30/18 Page: 1 of 40 PageID #: 1425

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v.
THE CITY OF FERGUSON, Defendant.

)
) ) Case No. 4:16-cv-180
) ) Hon. Catherine D. Perry
)
)
)
)

INDEPENDENT MONITOR SPRING 2018 SEMIANNUAL REPORT

I. INTRODUCTION Paragraph 416 of the Consent Decree entered into between the United States Department
of Justice (“DOJ”) and the City of Ferguson, Missouri (the “City”) (together, the “Parties”) tasks the Independent Monitor (the “Monitor” or the “Monitoring Team”) with assessing and reporting on the implementation of the Consent Decree. Specifically, the Monitoring Team must ensure that the implementation of the Consent Decree results in constitutional and lawful policing, the administration of justice, and increased community trust between the public, the Ferguson Police Department (“FPD”), and the Ferguson Municipal Court (the “Municipal Court”). See Consent Decree, ¶ 416. To accomplish this, the Monitoring Team must review policies, training curricula, and other written materials developed by FPD and the Municipal Court, and conduct audits and outcome assessments evaluating the City’s implementation of the Consent Decree’s provisions.
Paragraph 438 of the Consent Decree requires that the Monitor file with this Court, every six months, a written, public report. Id. ¶ 438. The Consent Decree specifies that the reports must include:
1

Case: 4:16-cv-00180-CDP Doc. #: 85 Filed: 03/30/18 Page: 2 of 40 PageID #: 1426
(a) a description of the work conducted by the Monitor during the reporting period;
(b) a list of each Consent Decree requirement, including details regarding which requirements have been incorporated into implemented policy, which are the subject of sufficient training for all relevant FPD officers and employees, and which are found by the Monitor to have been fully implemented in practice;
(c) the methodology and specific findings for each review and audit conducted, redacted where appropriate for privacy concerns;
(d) for any requirements that were reviewed or audited and found not to have been fully implemented in practice, the Monitor’s recommendations regarding necessary steps to achieve compliance;
(e) the methodology and specific findings for each outcome assessment conducted; and
(f) a projection of the work to be completed during the upcoming reporting period and any anticipated challenges or concerns related to implementation of the provisions of the Consent Decree.
This report constitutes the Monitoring Team’s first report for calendar year 2018.1
A. The Monitoring Team
The DOJ and the City of Ferguson submitted a joint motion for entry of the Consent
Decree on March 17, 2016. Dkt. No. 12. This Court granted that motion and endorsed the
Consent Decree on April 19, 2016. Dkt. No. 41 at 133. The Parties’ initial monitor selection
was approved by this Court on July 22, 2016. Dkt. No. 48. After agreement by the Parties and
in consultation with the Court, Natashia Tidwell of Hogan Lovells US LLP was appointed as the
new Lead Monitor on December 12, 2017.2 Dkt. No. 80. This Court stated that “Ms. Tidwell
shall have the duties, authority, and responsibilities of the Monitor as set forth in the Decree,
1 The most recent status report in this case, the “Independent Monitor Initial Work Plan,” was filed on December 5, 2016 by former Lead Monitor Clark Kent Ervin. See Dkt. No. 55. Accordingly, the details of this report will span the reporting period from January 2017 through March 2018. In accordance with Paragraph 439 of the Consent Decree, this report has been agreed to by the Parties. At the start of Year Three, the Monitoring Team will publish a comprehensive work plan, which will include a proposed schedule outlining new benchmarks and goals for the implementation of all aspects of the Consent Decree. 2 Ms. Tidwell, a member of the Monitoring Team since August 2016, assumed the Lead Monitor’s duties on an interim basis in September 2017.
2

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including the discretion to select additional members of the Monitoring Team pursuant to the procedures set forth in Paragraph 423 of the Decree.” Id.
As Lead Monitor, Ms. Tidwell heads the Monitoring Team. As background on her experience and qualifications as Lead Monitor, Ms. Tidwell began her career in law enforcement as a member of the Cambridge Police Department. While with the department, she worked as a school resource officer and as a Sergeant-Detective in the Internal Affairs Division. In 2003, Ms. Tidwell became the first female lieutenant in the department’s history. After attending law school, Ms. Tidwell served as a federal prosecutor in both the DOJ’s Public Integrity Section and the U.S. Attorney’s Office for the District of Massachusetts. As Counsel with Hogan Lovells US LLP, Ms. Tidwell’s practice focuses on investigations and compliance, and, given her law enforcement expertise, includes serving as a policing subject matter expert for other monitoring teams. Supporting Ms. Tidwell is the Monitoring Team of independent subject matter experts (“SMEs”) and Hogan Lovells attorneys. The members of the Monitoring Team have expertise in policing and court policy review, legal analysis, community engagement, data analysis and informational management, as well as police department training, compliance, and internal affairs. Currently, the members of the team include:
• Kimberly Norwood, Henry H. Oberschelp Professor of Law, Professor of African and African American Studies, Washington University in St. Louis;
• Robert Stewart, Police Practices Expert, President and CEO of Bobcat Training and Consulting Inc.;
• Maggie Goodrich, Technology Consultant, President LE Innovation, Inc.; • Steven Parish, Community Engagement Consultant; • Karla Aghedo, Senior Associate in Investigations, White Collar, and Fraud,
Hogan Lovells US LLP in Houston; and
3

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• Courtney Caruso, Senior Associate in Investigations, White Collar, and Fraud, Hogan Lovells US LLP in Boston.3
B. The Monitoring Process Through the work of its subject matter experts, the Monitoring Team will conduct reviews and audits to determine whether the City, FPD, and the Municipal Court are in compliance with the Consent Decree, and will provide technical assistance as needed to guide the City through the implementation process. Specifically, the Monitoring Team will ensure timely and complete implementation of the Consent Decree through the following three phases: (1) policy revision and review; (2) training and implementation; and (3) auditing and compliance assessment.
1. Policy Revision and Review The Consent Decree requires FPD and the Municipal Court to incorporate its provisions into specific policies and procedures as appropriate. See Consent Decree, ¶ 42. It further requires the development and implementation of most, but not all, of those policies and procedures within Year One.4 Id. The City has not satisfied this requirement. While progress is being made, the City’s delegation of police-related policy development to one person within FPD, Commander Frank McCall (who was not appointed until October 2016), has resulted in a slower and more gradual policy development process. Despite Commander McCall’s best efforts, the process of revising, and in some instances, drafting from whole cloth, all of the
3 The Monitor intends to engage at least one additional expert to support the implementation of the Consent Decree. 4 Throughout this report, the Monitor refers to “Year One,” “Year Two,” and “Year Three” to identify past achievements and to outline future goals. The monitorship officially began when the former Monitor was appointed by the Court on July 22, 2016. Accordingly, Year One ran from August 2016 through July 2017, Year Two began in August 2017 and will end in July 2018, and Year Three will commence in August 2018.
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policies required under the Consent Decree is work appropriate for more than one person.5 The
Monitoring Team is pleased that the Parties continue to work collaboratively in this area and
have reached an agreement regarding the most efficient method for the FPD policy revision and
review process going forward. This method includes the following seven steps:6
i. Kick-off/Announcement of Policy Area: FPD notifies DOJ and the Monitor of its intent to begin drafting or revising policies in an identified subject area;
ii. Technical Assistance: The appropriate SME on the Monitoring Team provides FPD and DOJ with technical assistance in the form of model policies and/or initial guidance as to best practices in the identified subject area;
iii. Gap Analysis: FPD and DOJ conduct an assessment or gap analysis of FPD’s current state of affairs (i.e., ascertain how FPD’s existing policies, practices, and systems differ from the Consent Decree’s requirements and best practices);
iv. Policy Revision: FPD and DOJ revise policies, practices, and systems in the target subject area to the extent required under the gap analysis;
v. Solicitation of Community Input: Several provisions of the Consent Decree require community involvement in the implementation of specific policies, including those designed to improve police/community relations. The Parties are committed to soliciting community feedback on other policies as well, even where not explicitly required by the Consent Decree. While the Parties continue to evaluate the best means of involving community stakeholders in the policy development process, the Parties have found that policy forums are an effective means of inviting and obtaining community input.
vi. FPD Officer Review: Pursuant to the Consent Decree, see Consent Decree ¶ 43, the City provides officers from varying ranks and units with a meaningful opportunity to review and comment on the new or revised policies and procedures; and
vii. Return to Monitor/SME: Upon completion of a draft policy, the Parties submit the policy to the Monitor and/or appropriate SME for review. The SME will review the policy and either provide final approval or arrange for a conference call to discuss additional revisions.
5 In the Conclusion of this report (see Section III), the Monitor makes specific recommendations for the hiring of additional personnel to assist with Consent Decree implementation. 6 The steps outlined in the process are not necessarily intended to be implemented sequentially. Rather, the Parties and the Monitoring Team will determine the appropriate methodology on a case-by-case basis.
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2. Training and Implementation Pursuant to Paragraph 48 of the Consent Decree, FPD must provide training to its officers on all policies developed by the end of Year Two. Consent Decree, ¶ 48. As detailed above, the measured approach to policy development has hampered the City’s progress in training and implementation. Nevertheless, FPD has made some progress. First, pursuant to Paragraph 56, FPD appointed Sergeant Dominica Morrow as its Training Coordinator. Second, as required under Paragraph 49, the City has established a Training Committee comprised of FPD personnel and members of the Neighborhood Policing Steering Committee (“NPSC”). Lastly, the City has prioritized the development of a training schedule and training plan, which will direct delivery of the required training in Year Three and beyond. Id. ¶¶ 50-51, see also id. ¶¶ 303-322. On January 31 and February 1, 2018, the Monitor met with Sergeant Morrow and Commander McCall to discuss FPD’s delivery of the required training. Sergeant Morrow confirmed that she has begun the process of building up FPD’s capacity to comply with the training requirements of the Consent Decree. As part of this effort, Sergeant Morrow is working with Ms. Goodrich, the Monitoring Team’s technology consultant, to ensure that FPD’s systems are sufficient for organizing and tracking training data. FPD will also need to assess its methods of training delivery, specifically by examining whether, and to what extent, Missouri state certification requirements harmonize with the Consent Decree’s requirements for officer training. For the remainder of Year Two, FPD will continue with these efforts and will prioritize training FPD personnel on the requirements, goals, and expectations of the Consent Decree itself. Id. ¶ 305. The Monitoring team will work with FPD to develop a method for the review of proposed training curricula, materials (including lesson plans and PowerPoint presentations), and delivery. In Year Three, once FPD has instituted the appropriate training
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procedures and systems, the Parties and the Monitoring Team will prioritize training on all developed policies. As is the case with policy revision and review, the Monitoring Team has recommended that the City hire additional personnel with expertise in training development and delivery to assist it in making the completed policies operational through a robust training program.
3. Auditing and Assessing Compliance With the exception of provisions related to court reform and overhaul of the Municipal Code, much of the implementation work remains in the policy revision and review phase. As described in further detail below, some aspects of compliance with the Consent Decree are further along than others. For example, more progress has been made on the municipal court reform section of the Consent Decree than in other areas. As such, the Monitoring Team has already submitted its plan and proposed methodology for auditing court reform provisions in Year Two and beyond.7 The remaining subject areas, particularly those identified below as priority areas for FPD, are still in the early phases of implementation and cannot be audited at this point. However, during the last quarter of Year Two and the first quarter of Year Three, the Monitoring Team intends to conduct some measure of compliance review in at least the areas of Stops, Searches, and Arrests, Use of Force, and Accountability, in order to establish a baseline assessment for future audits.8 The Monitoring Team will notify the Parties thirty days in advance of commencing any audit and will provide a proposed methodology in accordance with
7 The results of the first phase of the Municipal Court audit, completed in August of 2017, are described in Section II(F) below. 8 It is unclear whether FPD currently requires its officers to submit Use of Force reports as circumstances warrant. If such reporting is available, the Monitoring Team will review them to establish a baseline audit of FPD’s use of force. The Monitoring Team recognizes that, in the absence of such reports, it may be necessary to use other means, such as incident and arrest reports, to complete an audit in this area.
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Paragraph 426 of the Consent Decree. At that time, the Monitoring Team will also submit any requests for documents and materials needed to assess compliance. See id. ¶ 426. II. DETAILED STATUS UPDATE
Because the Consent Decree contains numerous objectives and requirements that the City, FPD, and Municipal Court have agreed to implement, the Parties have prioritized specific provisions of the Consent Decree. For FPD, the following six subject matter areas are the priorities: (1) community policing and engagement; (2) bias free police and court practices; (3) stops, searches, citations, and arrests; (4) use of force; (5) recruitment; and (6) accountability (including the Civilian Review Board (the “CRB”)). In addition to these priority areas, the Parties, with support from the Monitoring Team, have continued working toward implementation of the remaining requirements of the Consent Decree, with particular emphasis on implementation of provisions regarding municipal court reform, the school resource officer program, and body-worn and in-car camera policies. This report outlines the efforts of the Parties and Monitoring Team in these areas, and details progress toward full compliance with the Consent Decree. A table outlining the Monitoring Team’s stated goals for Years Two and Three (March 2018 through July 2019) is attached as Appendix A.
A. Community Policing and Engagement The Consent Decree requires that the City and FPD develop and implement FPD community engagement and community policing plans. Id. ¶¶ 20, 26. The Parties circulated a draft community policing policy that, in addition to articulating FPD’s community policing philosophy and its plan for implementation and training on the policy, also recognizes the need for a separate community engagement plan to create opportunities for routine and frequent positive interactions between all representatives of FPD and the community it serves. Following the Monitoring Team’s initial review, the Parties provided the draft policy to the NPSC which
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returned comments to the Parties. Currently, the community policing policy is once again under review by the NPSC, which is examining whether it is satisfied with how its initial comments were incorporated into the draft policy. Following the NPSC’s final review, the Monitoring Team will ensure that the policy is distributed to other community stakeholders, such as the CRB, as outlined in Paragraph 20. By the close of Year Two, after the relevant stakeholders have provided feedback on the draft community policing policy, the Monitoring Team will conduct a final review of the policy and will consult with the Parties to prepare logistics for FPD’s training and implementation on the policy as well as the development of the separate community engagement plan.
In Year Three, the Monitoring Team will also work with the Parties to develop a plan for providing neighborhood mediations as required by Paragraph 33 of the Consent Decree. This plan, which must be developed in consultation with members of the Ferguson community, will include an implementation timeline for interim steps, such as the retention of an administrator and volunteers, training, and the initiation of mediations. Id. ¶ 33. The Monitor has recommended that the City hire an Outreach Coordinator to oversee FPD’s relationships with various neighborhood associations and to assist the City in the establishment of the mediation program and in the identification of a neutral facilitator to lead the series of small-group structured dialogues envisioned in Paragraph 19 of the Consent Decree. The City should develop a plan for implementation of Paragraph 19 in the first quarter of Year Three. To the extent it is necessary, the Monitoring Team may provide technical assistance to the City in identifying and hiring both a neutral facilitator and an Outreach Coordinator.
Finally, with respect to its own community engagement, the Monitoring Team will seek to increase its communications with the Ferguson Community as contemplated by Paragraph 441. Since Ms. Tidwell’s appointment as Lead Monitor in December 2017, she has held two
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town hall-style events as well as open “office hours” for community members to speak with her individually. During the latest town hall, held on March 5, 2018, Ms. Tidwell introduced Robert Stewart, Police Practices Expert, and Steven Parish, Community Engagement Consultant, to the Ferguson Community. Mr. Stewart provided an overview of Community Policing, highlighting its goals as well as common obstacles to its implementation. The Monitoring Team will continue to arrange for frequent opportunities for face-to-face communication with the community as well as with the Parties.
In addition, the Monitoring Team plans to establish other avenues for community members to share their experiences, perceptions, and feedback concerning the City, FPD, and the Consent Decree. First, Steven Parish has joined the Monitoring Team as a Community Engagement consultant. Mr. Parish brings particularized knowledge of the Ferguson community and its various stakeholders and will serve as a local representative of the Monitoring Team in Ferguson. Through the Monitor and Mr. Parish, the Monitoring Team will continue to meet with various community organizations to discuss the ways in which the Monitoring Team and the Parties can rely on such organizations to more effectively liaise with the community. Second, the Monitoring Team is committed to establishing more opportunities for direct communication with the Ferguson community. For example, members of the community may now contact the Monitoring Team directly through the following email address and telephone number: fergusonmonitor@hoganlovells.com / (888) 791-8858. The Monitoring Team has also initiated steps to take over the website launched by the former Lead Monitor (http://www.fergusonmonitorship.com/). Once this website is under the Monitor’s control, it will be updated to reflect information concerning the Monitoring Team and the status of implementation.
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1. The Neighborhood Policing Steering Committee The NPSC was established through city ordinance as was required by Paragraphs 21 and 22 of the Consent Decree. The NPSC conducts much of its work through subcommittees, which meet on a monthly basis and are responsible for specific subject areas, such as community engagement, recruitment, and municipal code reform. The NPSC initially experienced organizational challenges that hindered its effectiveness. However, since the fall of 2017, the NPSC has met regularly and has been successful in holding productive meetings. On December 21, 2017, the NPSC began a series of trainings with Dr. Amber Johnson, Ph.D., which are aimed at increasing the strength of the organization and its capacity to fulfill its responsibilities as set forth in the Consent Decree. Dr. Johnson is a faculty member at Saint Louis University and founder of the Justice Fleet Project. Among other things, the trainings focused on active listening and addressed implicit bias. In addition to NPSC members, representatives from FPD, city council members, and other community stakeholders have attended the trainings. The trainings have been a success and provide the NPSC with a framework for bringing in additional guest speakers in the future. Finally, as described herein, the NPSC has assumed an active role in the development of FPD’s community policing policy and recruitment plan. During the remainder of Year Two, the Monitor will prioritize effective methods of communicating with, and, where appropriate, providing guidance to, the NPSC.
2. Civilian Review Board The City, in consultation with DOJ and the Monitoring Team, has enacted the establishing ordinance for the CRB, which includes protocols for the selection of members, and has developed training materials for its members. The Monitoring Team reviewed and approved these training materials prior to implementation and will continue to evaluate the CRB’s
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participation in the development and revision of policies and training related to Accountability. The CRB continues to develop internal policies/manuals for self-government and to formulate a program for the promotion of public awareness and education as required by Paragraph 405(d),(g). Currently, the CRB meets on a monthly basis.
3. Surveys Paragraphs 429 and 430 of the Consent Decree require that the Monitoring Team conduct annual surveys of members of the Ferguson community, including Ferguson residents, law enforcement personnel, and detained arrestees. In particular, the surveys are aimed at gathering information about (1) the community’s experiences with and perceptions of FPD, public safety, and the municipal court; and (2) police officers’ attitudes regarding their jobs and the Ferguson community. The Officer Attitudes and Perceptions Survey was administered to FPD officers in the late summer of 2017. Richard Trinkner, Ph.D., and Faith Gifford, M.S., of Arizona State University School of Criminology and Criminal Justice provided a descriptive analysis of the survey results. Their report is organized into two basic categories: (1) organizational measures which focus on officers’ attitudes and perceptions about their department and the people in it; and (2) community measures which focus on officers’ attitudes and perceptions about the public and law enforcement strategies. After publication of the full report during Year Two, and in accordance with Paragraphs 432 and 433 of the Consent Decree, the City and FPD will analyze the results of this survey and will use this analysis to modify and improve FPD policies, training, and practices as needed. The Monitoring Team will aid in the Parties’ analysis and, in Year Three, will re-administer the officer survey, using the initial set of results as a baseline measurement against which future surveys may be judged.
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As previously stated in the December 2016 Initial Work-Plan, the Monitoring Team completed a draft of a community-wide survey in Year One. Despite efforts to administer the survey in 2017, however, the Monitoring Team was unable to do so. Accordingly, during the remainder of Year Two, the Monitoring Team will prioritize the administration of the community survey, and, specifically, the identification of an SME who can facilitate the Monitoring Team’s efforts in survey administration, and, if necessary, a community partner able to assist in this area.
B. Bias-Free Police and Court Practices Although bias-free policing and court practices were identified as a priority area in Year One, policy development has yet to begin. Accordingly, bias-free police and court practice policy development should be completed within the next reporting period with implementation and training initiated during Year Three. The Monitoring Team will also prioritize the development and implementation of policies and training for individuals who have a limited ability to speak, read, write, or understand English. See id. ¶ 67. Finally, to the extent practicable, FPD will commence, in Year Three, a review of policies pertaining to officer response to allegations of domestic violence and sexual assault. See id. ¶ 68. Further details regarding bias-free court practices are contained in the section below addressing Municipal Court Reform. C. Voluntary Contacts, Stops, Searches, Citations, and Arrests Pursuant to the policy review and revision process detailed in Section I(B)(1) of this report, FPD is currently in the process of conducting a gap analysis with respect to its stop, search, and arrest policies. The Parties will revise these policies during the last quarter of Year Two. In preparation for training on these policies, the Monitoring Team will conduct an audit of
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citations, arrest reports, and field inquiry reports (if available) to establish a baseline for future audits and to provide technical assistance to FPD in the drafting of policies in this area.
D. Use Of Force The Parties have drafted an umbrella policy pertaining to the use of force as well as a suite of policies that correspond to various instrumentalities of force and a process for reporting and investigating uses of force. See generally Consent Decree, § IX. The suite of policies includes general orders on each of the following topics: lethal/less lethal force; firearms; electronic control weapons; batons; OC spray; less lethal bean bag shotguns and ammunition; canines; vehicle pursuits; force reporting; force response and investigation; critical incident response; and the Force Review Board. The Parties have also completed flow charts, which accompany the Force Response and Investigation Policies, for incidents involving Types 1, 2, and 3 use of force. During Year Two, the Parties held multiple policy forums in which Ferguson community members were invited to review and provide feedback on the use of force policies. The community forums included a general presentation of the policies by the Parties as well as an opportunity for community members to engage in dialogue in a small-group setting. After these forums, the Parties revised the policies to incorporate feedback received from the community. The policies were presented to the Monitoring Team for final approval in February 2018, and the Monitoring Team provided feedback and comments to the Parties in March 2018. During the remainder of Year Two, the Monitoring Team will assist in the finalizing and completion of use of force policy development. Training on these policies will commence in Year Three. In addition, the Monitoring Team will conduct an audit of FPD use of force and incident reports, to the extent they are available, in order to establish a baseline for future audits and to provide technical assistance to FPD in developing training in this area.
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E. Recruitment The Parties have drafted a Recruitment Plan for attracting and retaining a high-quality and diverse work force as required by Paragraphs 282 and 283 of the Consent Decree. While the Monitoring Team conducted an initial review of the Recruitment Plan during Year One, the Monitoring Team requested the opportunity for Mr. Parish, its Community Engagement Consultant, to also review the plan and to offer feedback. The Parties agreed. Final approval of the plan is pending as the City has not yet developed a method for complying with Paragraph 283(a), which requires the City to offer salaries that will place FPD among the most competitive of similarly sized agencies in St. Louis County. Accordingly, in the final quarter of Year Two, the City should develop a plan for compliance with this provision. During Year One, the background investigation and screening system required by Paragraphs 288 and 289 of the Consent Decree was developed by FPD and approved by the Monitor. The background investigation manual is currently in use by FPD. Before the close of Year Two, Chief Moss will explain the provisions of the Recruitment Plan to rank and file members of FPD as is required under Paragraph 284. The City will provide an outline of Chief Moss’s presentation and any accompanying materials along with a proposed schedule to the Monitoring Team thirty days in advance of implementation. The Monitoring Team will review job applications and background investigation files to assess compliance. In Year Three, the City Manager, in consultation with the Chief of Police, the Monitor, and the DOJ, will revise the plan as necessary. F. Municipal Court Reform Reform of the Ferguson Municipal Court has progressed significantly under the Consent Decree. Pursuant to Paragraph 323 of the Consent Decree, the Monitoring Team has engaged with DOJ and the City to reform the Municipal Court to ensure that the Municipal Code is
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enforced for the purpose of protecting public safety and to enable the fair and impartial resolution of municipal charges. The Parties have agreed to several measures designed to ensure that enforcement of the Municipal Code is driven by public safety, including implementation of the Comprehensive Amnesty Program, revision of practices of the Municipal Court, and ongoing assessment and improvement of the Municipal Court.
With assistance from the Court staff, including the Court Clerk and Municipal Court Judge and the City Attorney, the City of Ferguson has worked cooperatively with DOJ and the Monitoring Team to develop, revise, and implement policies and procedures that effectively address the findings of DOJ’s investigation and related provisions of the Consent Decree. While several provisions have not yet been addressed, the City of Ferguson continues to collaborate with DOJ and the Monitoring Team to advance the goals of the Consent Decree with specific goals and timelines to guide this effort.
1. Audit Procedures & Compliance Pursuant to Paragraph 424 and consistent with its responsibility to ensure compliance with the Consent Decree, the Monitoring Team established a biannual audit schedule of the specific provisions addressing Municipal Court reform. 9 The first audit was conducted in August 2017. In preparation for the August 2017 audit, the Monitoring Team sent a work plan to the Parties identifying twenty provisions of the Consent Decree designated for auditing. For some provisions of the Consent Decree, the Monitoring Team elected to defer auditing those provisions until a later date, recognizing the City’s need to prioritize and focus its reform efforts, rather than attempt to address all of the provisions at one time without sufficient resources to do so. The procedures for auditing the relevant provisions were divided into six categories:
9 The Monitoring Team initially proposed an August/February audit schedule. Due to changes in the Monitoring Team and to ensure better coordination of effort, the biannual audits will now take place in March and September.
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i. Document Review: The Monitoring Team requested to review policies, procedures, and other documents such as the City budget during the audit;
ii. City Ordinance Review: The Monitoring Team reviewed the City ordinances that the City was required to enact, repeal, or revise in compliance with the Consent Decree. Most, if not all, required changes to City ordinances were completed before the effective date of the Consent Decree;
iii. Database Review: The Monitoring Team requested access to or reports from the court’s computerized database, ITI, during the audit to confirm the existence, or non-existence of arrests and citations for rescinded ordinances like Failure to Appear; to collect data related to the so-called “good cause” cases from prior to January 1, 2014, pursuant to the Comprehensive Amnesty Program; and to confirm the status of associated warrants. There were some technical difficulties in accessing the database during the audit period; specifically, there was some question as to who should bear the expense for ITI making a copy of the database available to the Monitoring Team. At the time of issuance of this report, the Monitoring Team does not have remote access to ITI and currently accomplishes confirmation of information available in the database through onsite visits or specific requests for reports from the Court Staff;
iv. Website Review: The Monitoring Team reviewed the City’s website and the specific pages designated for the Ferguson Municipal Court, as well as the website of the City’s online payment vendor, to audit compliance with the Consent Decree provisions requiring the City to maintain a website and to make certain information readily accessible;
v. Municipal Court Case File Review: The Monitoring Team requested onsite review of case files to audit compliance with the Consent Decree provisions related to the Comprehensive Amnesty Program and the reduction or dismissal of cases in which defendants were subject to fines and fees related to Failure to Appear charges. The Monitoring Team notified the Court Staff prior to the court visit to have cases made available for review; and
vi. Observation of Municipal Court Operations: The Monitoring Team attended court sessions to observe the operations of the Ferguson Municipal Court, pursuant to several provisions of the Consent Decree, including required notifications to defendants, ability-to-pay determinations, options related to alternative sentences (e.g., community service in lieu of payment of fines) and payment plans, and the conduct of the Municipal Court Judge and City Prosecutor to ensure their independence and impartiality.
Each provision related to Municipal Court Reform has been evaluated and provided with a
compliance grade for the August 2017 audit period based on the following scale:
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i. In Compliance: Indicating that the City has fully satisfied the written requirements of the Consent Decree provision and fulfilled the purpose of the provision by doing so;
ii. Partial Compliance: Indicating that the City has satisfied some but not all requirements of the Consent Decree provision;
iii. Initial Development: Indicating that, during the audit period, the City has taken at least one measure in the process of fulfilling the requirements of the Consent Decree, but has not yet completed its requirements;
iv. Out of Compliance: Indicating that the City received notice that the Consent Decree provision would be assessed during the audit period, but has not yet fulfilled the requirements of the provision and has not taken meaningful steps to do so; and
v. Not Assessed: Indicating that the Monitoring Team did not give the City notice that this provision of the Consent Decree would be assessed this reporting period. For Consent Decree provisions that the City addressed ahead of schedule, without notice of assessment from the Monitoring Team, the City has received one of the compliance grades outlined above.
2. Summary of Audit Findings
The findings of the audit are outlined below in Table 1: Ferguson Municipal Court
Reform at a Glance, with reference to specific provisions of the Consent Decree as applicable.
The specific bases for these ratings are explained in further detail below in Section II(F)(3) of
this report.
Table 1: Ferguson Municipal Court Reform at a Glance

Consent Decree Provision

Audit Procedures

Status

¶ 324: Ensure cap on revenue from municipal fines and fees
¶ 325: Remove municipal court from oversight of City Finance Director
¶ 326: Implement Comprehensive Amnesty Program for cases without a disposition initiated before January 1, 2014, and repeal all or parts of Ferguson Municipal Code §13-60, §13-63, §1370(2) and (3), and §44-50

Document Review: City budget and financial records
Observation of Municipal Court Operations and review of city budget
City Ordinance Review; Database Review of pending and closed cases; Municipal Court Case File Review of pending and closed cases; Observation of Municipal Court Operations

In Compliance
In Compliance
Initial Development ¶ 326(a) – Initial Development
¶ 326(b) – In Compliance ¶ 326(c) – In Compliance ¶ 326(d) – In Compliance

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¶ 327: Implement Comprehensive Amnesty Program, eliminate charges, and cancel warrants for cases without a disposition initiated before January 1, 2014
¶ 328: Develop and implement policies to ensure fair administration of justice
¶ 329: Increase transparency of court operations
¶ 330: Develop and implement plan for public education campaign about municipal court
¶ 331: Make information available regarding cost-free legal assistance
¶ 332: Provide adequate notice of charges, options, requirements, and consequences
¶ 333: Provide clear information regarding rights and responsibilities
¶ 334: Monthly audits of citations to ensure proper completion
¶ 335: Maintain current contact information for individuals with pending cases
¶ 336: Revise online payment system to allow late payments and payment plan installations
¶ 337: Online access to charging details and status for defendants
¶ 338: Ensure privacy protections for online court systems
¶ 339: Eliminate unnecessary barriers to resolving cases
¶ 340: Provide appropriate ability-topay determinations
¶ 341: Maintain public list of preset fines, accounting for punitive nature, local income levels, and regional averages
¶ 342: No additional fines and fees for Failure to Appear or violations of repealed code provisions §13-60, §1363, §13-70(2), or §13-70(3).

Database Review of pending and closed cases; Municipal Court Case File Review of pending and closed cases; Observation of Municipal Court Operations
City Ordinance Review; Website Review; Observation of Municipal Court Operations
Website Review
Website Review; Observation of Municipal Court Operations
Website Review; Observation of Municipal Court Operations
Document Review of citation and arrest notice; Website Review
Document Review of citation and arrest notice; Website Review
Document Review of draft policy
Observation of Municipal Court Operations
Website Review
Document Review of Memorandum of Understanding; Website Review Document Review of vendor policy; Website Review Document Review of draft policy; City Ordinance Review; Website Review; Observation of Municipal Court Operations Website Review; Observation of Municipal Court Operations
Document Review of current fines and fees schedule; Website Review; Observation of Municipal Court Operations
City Ordinance Review; Database Review of pending and closed cases; Municipal Court Case File Review of pending and closed cases; Observation of Municipal Court Operations

19

Initial Development
Initial Development Initial Development
Not Assessed Out of Compliance Initial Development Initial Development Initial Development Partial Compliance Partial Compliance Initial Development Initial Development Initial Development Initial Development Partial Compliance
In Compliance

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¶ 343: Provide alternative sentence and Website Review; Observation of Municipal

payment plan options

Court Operations

¶ 344: Implement community service as Website Review; Observation of Municipal

a sentence alternative

Court Operations

¶ 345: Provide options for courtmanaged payment plans

Website Review; Observation of Municipal Court Operations

¶ 346: Appropriate debt collection for failure to complete community service or payments in timely manner

Website Review; Observation of Municipal Court Operations

¶ 347: Prohibition on arrest warrants to Database Review of warrants; Observation

collect civil court debt

of Municipal Court Operations

¶ 348: Develop and implement policy to ensure arrest warrants are issued only after exhausting measures to secure defendant’s appearance

Website Review; Observation of Municipal Court Operations

¶ 349: Ensure no custody based on ability to pay monetary bond

Document Review of custody logs where available; Website Review; Observation of Municipal Court Operations

¶ 350: Develop and implement plan eliminating use of fixed monetary bond schedule

Document Review of court order submitted by City; Website Review

¶ 351: Reporting failure to appear or pay fines for moving traffic violation to Missouri Department of Revenue only to extent required by law

Database Review; Observation of Municipal Court Operations

¶ 352: Provide compliance letters for suspended license based on Missouri Revised Statute §302.341.1 immediately following court appearance

Database Review; Observation of Municipal Court Operations

¶ 353: Develop and implement trial procedures ensuring fair and impartial conduct of trial

Document Review of draft policy; Website Review; Observation of Municipal Court Operations

¶ 354: Ensure online court systems allow collection of aggregate data for court data collection and reporting requirements

Database Review

¶ 355: Ensure electronic records management system has appropriate controls to limit user access and ability to alter case records, and comports with applicable law

Database Review

¶ 356: Provide timely and accurate reports to Missouri State Courts Administrator (MSCA) and make MSCA reports and other court data accessible to public

Website Review

20

Initial Development Initial Development Initial Development
In Compliance In Compliance Initial Development In Compliance Initial Development Not Assessed
Not assessed Initial Development Initial Development
In Compliance
In Compliance

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¶ 357: Ensure municipal court operates independently of City Prosecutor
¶ 358: Ensure impartiality of municipal court judge
¶ 359: Ensure appropriate accommodations for individuals with mental, intellectual, or developmental disabilities
¶ 360: Develop protocols for conducting cost-feasible, data-driven, and qualitative assessments of court practices

Document Review of May 2016 policy; Ordinance Review; Observation of Municipal Court Operations Ordinance Review; Observation of Municipal Court Operations
Website Review; Observation of Municipal Court Operations
Document Review; Website Review

Partial Compliance In Compliance
Initial Development
Not Assessed

3. Detailed Audit Findings The detailed findings of the August 2017 audit are provided in this section of the report with reference to specific provisions of the Consent Decree as applicable, along with recommendations for next steps and a proposed timeframe for auditing compliance with the respective provision. Where a certain provision was not reviewed during the August 2017 audit, this is specifically noted and the report provides a summary of any progress related to the provision, followed by recommendations for next steps and a proposed timeframe for auditing compliance with the provision. As mentioned above, the Monitoring Team did not include all provisions of the Consent Decree in the August 2017 audit to avoid undermining the City’s resources and to facilitate prioritization of the City’s efforts to comply.
a. Ensuring that Municipal Code Enforcement is Driven by Public Safety (Paragraphs 324 & 325)
Pursuant to Paragraph 324 of the Consent Decree, the City achieved full compliance with the 12.5 percent cap on revenue from municipal fines and fees, consistent with the mandate of Mo. Rev. Stat. § 479.350, and remained in full compliance with this provision during the August 2017 audit period. According to the City Budget for fiscal year 2016-2017, the actual

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revenues from fines and fees was under 12.5 percent of total revenues for the City, as was the amount of revenue from fines and fees for the 2017 forecast.
Pursuant to Paragraph 325 of the Consent Decree, the City, by order of the City Manager, successfully removed the Municipal Court from the oversight of the City Finance Director. The organizational chart submitted with the City’s budget for fiscal year 2017-2018 reflects the change. Effective July 1, 2017, as part of a larger restructuring of the municipal courts in St. Louis County, the Ferguson Municipal Court is required to certify, to the Presiding Circuit Judge of St. Louis County, its compliance with circuit court operating rules and procedures, effectively confirming that the Municipal Court falls within the Circuit Court’s supervision. During the August 2017 audit, the Monitoring Team reviewed Ferguson’s annual certification of compliance.
b. Comprehensive Amnesty Program (Paragraphs 326 & 327) Pursuant to Paragraph 326 of the Consent Decree, the City has implemented a Comprehensive Amnesty Program which includes a process for declining to prosecute all open cases without a disposition that were initiated prior to January 1, 2014, unless the City Prosecutor finds good cause to continue the prosecution. As of the August 2017 audit, the City was not in full compliance with Paragraph 327 of the Consent Decree, requiring implementation of the Comprehensive Amnesty Program within 30 days of the effective date of the Consent Decree; the elimination of all relevant charges, fines, and fees pending from cases initiated prior to January 1, 2014; and the cancellation of any municipal arrest warrants or collection of fines and fees associated with these cases. However, the City has developed a plan for implementing the Comprehensive Amnesty Program and has started implementation of the plan. In agreement with DOJ and in consultation with the Monitoring Team, the City has established a review process and schedule for the City Prosecutor and Court Staff to complete
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review of the cases initiated prior to January 1, 2014, with expectations that this review process
will be completed by the June 2018 status conference, well ahead of the September 2018 audit
period.
To fully implement the Comprehensive Amnesty Program, the Parties have agreed to the
following:
i. The City Prosecutor will create good cause criteria by which to evaluate all cases without a disposition that were initiated prior to January 1, 2014. The criteria were developed and approved by DOJ and the Monitoring Team;10 and
ii. The City Prosecutor will review all cases without a disposition that were initiated prior to January 1, 2014 to determine whether to decline prosecution or move forward with the case because it fits within one of the good cause criteria, and will document which of the good cause criteria has been satisfied for each of the cases that remains open for continued prosecution. The City Prosecutor and the Municipal Court staff have initiated, but not completed, the good cause review process.
As of February 28, 2018, the City Prosecutor and Court Staff have reviewed and
recommended a disposition for 6,085 cases initiated prior to January 1, 2014 under the
Comprehensive Amnesty Program. There are 1,847 cases that have not yet been reviewed. The
City has committed to completing the pre-2014 case review process no later than June 2018 in
advance of the June status conference and hearing before Judge Perry.
Pursuant to Paragraph 326(b) of the Consent Decree, and through an order issued by the
Municipal Court Judge, the City has eliminated all pending charges, fines, and fees related to
Failure to Appear Violations without requiring defendants to make bond payments, appear in
court, or take any other action. All such cases have been cleared out of the Municipal Court’s
electronic database and tracking system. During the August 2017 audit, the Monitoring Team
was able to confirm that there were no active or pending Failure to Appear cases in the system.
10 The good cause criteria were modified in early March 2018 to reflect changes to Standard 3 related to Driving While License Suspended and Driving While License Revoked cases. The Parties and the Monitoring Team agreed to these changes. The modified good cause criteria are provided in Appendix B.
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Pursuant to Paragraph 326(c) of the Consent Decree, the City has repealed all or parts of Ferguson Municipal Code § 13-60, § 13-63, § 13-70(2) and (3), and § 44-50, and has eliminated all pending fines and fees imposed pursuant to the applicable provisions of these sections. According to the version of the Municipal Code available online, the City repealed § 13-60 in its entirety on May 26, 2015; removed the provisions of § 13-63 authorizing special deterrent fees as part of parole and probation on February 23, 2016; removed the provisions of § 13-70(2) and (3) authorizing fees for continuing court proceedings, issuing and serving warrants, mileage, and witness fees other than costs associated with calling an expert witness to prosecute a charge of driving while under the influence on February 23, 2016; and repealed § 44-50 in its entirety on September 23, 2014. All cases related to these rescinded provisions have been cleared out of the Municipal Court’s electronic database and tracking system. During the August 2017 audit, the Monitoring Team confirmed that there were no active or pending cases in the system associated with these provisions.
Pursuant to Paragraph 326(d) of the Consent Decree, the City has taken measures to ensure that, where a defendant has made total payments that exceed the amount of the initial fines and fees imposed for a municipal ordinance violation, including payments for associated Failure to Appear Violations, the City has recommended that the fines be stayed and the case be closed without requiring defendants to make a bond payment, appear in court, or take any other action. Where payments have been made that do not total or exceed the original fine amount, the City has recommended lowering the fine and fee debts owed down to the amount of the initial fines and fees imposed, minus any payment already made by the defendant.
As part of the August 2017 audit process, the Monitoring Team reviewed a random sample of ten percent of cases in which the Municipal Court’s electronic database and tracking system reflect either a reduced fine amount or an outright dismissal due to the defendant’s
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payment of fines stemming from Failure to Appear charges under Ferguson Municipal Code § 13-58. There were 183 such cases from January through July 2017, totaling $51,627.50. Although not required to do so under the Consent Decree, the Municipal Court also dismissed a substantial number of cases (with a disposition) due to case age. There were 192 such cases from January through July 2017, totaling $60,546.00. The Monitoring Team also reviewed a random sample of ten percent of these cases. In sum, the Monitoring Team reviewed 37 case files during the August 2017 audit, some dating as far back as 2004, and found that the fines were reduced or dismissed as appropriate under the Consent Decree in each of these cases.11 The Monitoring Team will continue to review a ten percent random sample of these categories of cases as part of the biannual auditing process.
c. Revision of Ferguson Municipal Court Practices (Paragraphs 328 through 359)
Pursuant to Paragraph 328 of the Consent Decree, and in conjunction with DOJ, the City has started the process of developing and implementing the ordinances and policies necessary to ensure the fair administration of justice as well as the constitutionality and legality of Municipal Court procedures. This process has not yet been completed. The goal is for the City to develop a comprehensive manual of all policies, procedures, and protocols related to the Municipal Court. Specifically, the City has agreed to remediate fourteen key aspects of the Municipal Court. The following represents a summary of the status of each of these fourteen aspects of the Municipal Court procedural remediation agreement:
11 While the bulk of these cases were ultimately dismissed due to age or because the defendant’s Failure to Appear payments exceeded the balance owed, those that remain open are ineligible for “good cause” review because the defendant has pleaded guilty or been found responsible.
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1. Increasing transparency of court operations. Under Paragraph 329, the City has made progress on increasing the transparency of Municipal Court operations by enhancing the information available through its website. The City’s website now contains clear and accurate information about the Municipal Court process and all of the specific information required by Paragraph 329, with the exception of the most recent schedule of pre-established fines and fees. The schedule of fees available on the City website became effective by order issued on December 12, 2016, whereas the City’s online payment vendor, The Payment Group, has a City of Ferguson schedule of fees on its website which became effective May 31, 2017. This discrepancy needs to be reconciled.
Additionally, the City’s website currently does not contain information regarding how to obtain cost-free legal assistance to defend against a pending charge regardless of the fine amount or possible sentence, though it does make clear that an attorney will be provided by the Court if the defendant faces the possibility of jail time. See id. ¶ 331. The City should also evaluate other means of increasing the transparency of court operations in ways that are meaningful for citizens in the community it serves, including through print media and phoneaccessible information.
The City has not yet developed and implemented a plan for a public education campaign aimed at spreading accurate and complete information about the Municipal Court’s operations. See id. ¶ 330. This provision was not assessed by the Monitoring Team during the August 2017 audit period, but will be addressed in a future audit, likely during the September 2018 audit. During a February 2018 visit to Ferguson, the Monitoring Team met with City officials and Jack Kirkland, MSW, Associate Professor at the George Warren Brown School of Social Work, Washington University in St. Louis, and discussed the public education efforts required by the Consent Decree. Professor Kirkland, an expert in issues of community work, group relations,
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social development, racism, social planning, and urban environments, has offered to assist in the City’s efforts to more effectively communicate with the Ferguson community, particularly with respect to the City’s obligation to educate local residents and stakeholders about Municipal Court operations. During the remainder of Year Two and throughout Year Three, the City will utilize interns in Professor Kirkland’s courses to assist in the development of community engagement and education plans.
2. Ensuring adequate notice to individuals charged with a violation of the Ferguson Municipal Code. To ensure individuals charged with violations receive adequate and reliable information about their rights, the City has provided citations, summonses, arrest notification forms, and other charging documents used by the FPD, which reflect most, but not all, of the information required under Paragraph 333 of the Consent Decree. The City must revise the citation document to provide a clear statement notifying the recipient of the right to challenge the charge in court and instructions regarding how to do so, see id. ¶ 333(d); to provide a clear statement that the recipient is entitled to have the amount of the imposed fine proportioned to the recipient’s ability to pay, see id. ¶ 333(h); to provide the range of possible penalties for failing to meet court requirements, see id. ¶ 333(i); and to provide clear instructions regarding how to acquire information regarding a pending charge, including how to contact a clerk of the Municipal Court by phone or in person, see id. ¶ 333(j).
Pursuant to Paragraph 333, the City has drafted a plan for performing monthly audits of citations, arrest notification forms, and other notices of violations used by officers to ensure that such documents are completed properly and provide the recipient with thorough and accurate information. During the next audit period, the Monitoring Team and DOJ will work with the City to revise the plan to ensure that it identifies the person conducting the audits, the reporting
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mechanism for the audits, and the accountability measures for failure to accurately complete the notices of violations. See id. ¶ 334.
During the August 2017 audit period, the Monitoring Team observed Night Court proceedings and confirmed that Court Staff are requesting updated contact information by providing each defendant who appears in court with an “Updated Contact Information” Form, pursuant to Paragraph 335. Completion of the form is optional, however, and it appears that few defendants actually do so. When a defendant opts to complete the form, it is placed in his/her case file. During one court session, the Monitoring Team overheard defendants express reservation about completing the form due to mistrust of government officials having access to private information. To enable auditing of this provision, the City should develop a form or certification that Court Staff can use to record a defendant’s refusal to provide updated contact information.12 Future audits will likewise confirm that updated contact information is being requested during court sessions and that the updated contact information or refusal to provide such information is entered into and maintained within the defendant’s municipal court file.
3. Revising the online payment system to make all municipal court payments available online except where prohibited by law. Pursuant to Paragraph 336 of the Consent Decree, the City has engaged an outside vendor called The Payment Group (“TPG”) to manage its online payment system. However, under the link to the “Ferguson Municipal Court” on the TPG website, the statement “All payments made here must be in full” could mislead a user into believing that the City does not accept partial payments online, when in fact, it does.
12 In a post-session review of case files of those defendants who appeared during the Night Court session, the Monitoring Team observed blank “Updated Contact Information” forms in case files, which was ostensibly designed to indicate a defendant’s refusal to complete the form. Nonetheless, a more formal protocol would better capture the data required by Paragraph 335.
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Underneath the “Ferguson Municipal Court” link is another link to “Ferguson Partial Payments” where users can make partial payments, or payment plan installments, in compliance with Paragraph 336. The Monitoring Team recommends adding language to the “Ferguson Municipal Court” link stating that “Partial payments or payment plan installments must be made through the Ferguson Partial Payments page” and providing a link from the “Ferguson Municipal Court” page to the “Ferguson Partial Payments” page to avoid any confusion. The City website should also be revised to clearly indicate that late payments will be accepted via the online payment system, in compliance with Paragraph 336.
Pursuant to Paragraph 337, the City has entered into a Memorandum of Understanding with Rise Community Development/CivTech St. Louis signifying an intent to work together to make the “YourSTLCourts” online court information system available to recipients of tickets relating to municipal code violations that occur in the City of Ferguson. The Monitoring Team did not provide notice that this provision of the Consent Decree would be reviewed during the August 2017 audit period; the City’s efforts on this provision are ahead of scheduled expectations and are commendable in that regard. The Monitoring Team will continue to consult with the City to facilitate development of the online court information system capable of providing the information specified in Paragraph 337.
To address the requirements of Paragraph 338, the City has provided the Monitoring Team with a copy of the Privacy Policy of TPG. However, neither the Ferguson Municipal Court website nor the TPG website contains a reference to or link to the Privacy Policy of TPG. The Monitoring Team will continue to consult with the City and DOJ to facilitate further development of the privacy protections necessary to protect a defendant’s personal information, including any necessary revisions to the current policy and the way it is made available to defendants.
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4. Eliminating unnecessary barriers to resolving cases. While an adequate written policy has not yet been approved, the Municipal Court has implemented the procedures detailed in subsections (a) through (e) of Paragraph 339, including drafting and publishing on the City’s website a process for requesting continuances by email or fax. However, the order outlining the process for requesting consideration of a continuance has not yet been approved by the Monitoring Team because it falls short in two respects: (1) the procedure fails to provide an option for requesting continuances by phone; and (2) the procedure fails to fully advise defendants about how a continuance request will be evaluated, such as by providing examples or further explanation of the “good faith” and good cause considerations by the Municipal Court Judge, or by specifying the definition of “medical reasons” as a good cause exception allowing the Court Clerk to grant a continuance. To enable effective auditing of compliance with the continuance request process required by Paragraph 339(b), the City must also develop a method of recording all requests for a continuance and whether those requests were granted or denied. The Monitoring Team will continue to consult with the City and DOJ to facilitate further development of the continuance request process.
The City also submitted Municipal Division Operating Order #4, promulgated by the St. Louis County Circuit Court, and adopted by the Ferguson Municipal Court in an effort to comply with Paragraph 339 (as well as Paragraphs 348-350, 357-358). While Operating Order #4 covers several important topics related to the administration of the Municipal Court, it fails to adequately and specifically memorialize the policies designed to address subsections (a) through (e) of Paragraph 339. For example, the City must establish and publish criteria for determining when partial payments or payment plan installments will be accepted. The Monitoring Team will continue to consult with the City and DOJ to facilitate further development of written
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policies designed to eliminate unnecessary barriers to resolving cases through the Municipal Court.
5. Conducting ability-to-pay determinations in conjunction with imposing fines and fees. The City has not yet developed a policy to ensure that defendants are provided with appropriate ability-to-pay determinations consistent with subdivisions (a) thorough (e) of Paragraph 340 of the Consent Decree. However, observations of court indicate that individuals are asked about their ability to pay before fines are imposed. The Monitoring Team did not provide notice that this provision of the Consent Decree would be reviewed during the August 2017 audit period; therefore, the City’s efforts on this provision are ahead of scheduled expectations and are commendable in that regard. Because a policy is needed to ensure these determinations are made consistently and in line with Paragraph 340, the Monitoring Team will continue to consult with the City and DOJ to facilitate development of the ability-to-pay determinations policy as a priority for completion by the September 2018 audit period.
The Parties have agreed in principle that the county-wide Uniform Fine Schedule currently in use by the City of Ferguson is sufficient to satisfy Paragraph 341, which requires the City to set fine amounts that are “not overly punitive, that take into account the income of Ferguson residents, and that are under no circumstances greater than regional averages for specific offenses.” Id. ¶ 341.
Consistent with the requirements of Paragraph 326(c), the City has repealed all or parts of Ferguson Municipal Code § 13-60, § 13-63, § 13-70(2), and § 13-70(3), and has not imposed any additional charges, fines, fees, or costs in response to any alleged or found “Failure to Appear” Violation or other violations previously imposed pursuant to the applicable provisions of these sections, in full compliance with Paragraph 342.
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6. Ensuring appropriate alternative sentences, like community service, and the availability of payment plan options. Pursuant to Paragraphs 343 through 346 of the Consent Decree, the Municipal Court provides for appropriate alternative sentences such as community service and payment plan options for satisfying fines, fees, and costs. As part of the community service alternative, the City has identified local and regional community organizations that will permit defendants to satisfy court obligations through community service at a rate of $10 for every one hour of community service performed. Additionally, the Municipal Court currently provides each defendant with a “Know Your Rights” form upon their appearance in court, explaining the right to make periodic payments, to present evidence of financial condition if unable to pay, and to request community service as an alternative.
However, the City has not yet developed a comprehensive community service program, including reasonable time periods for the completion of community service obligations that take into account a defendant’s existing employment and familial obligations, as required by Paragraph 344. Nor has the City developed a policy designed to ensure that defendants are provided with options for court-managed plans with reasonable periodic payments starting with an ability-to-pay determination or uniform procedures for seeking modifications to periodic payment plans pursuant to Paragraph 345.
Currently, in practice, defendants who fail to fulfill payment or community service obligations in a timely manner are given additional time to comply. There is no threat of arrest unless the defendant fails to appear in court to request additional time. As of the August 2017 audit period, a defendant who misses a payment or community service obligation would be summoned into court by the usual Show Cause process. After two consecutive missed appearances, an arrest warrant would issue for the underlying offense rather than for the currently obsolete Failure to Appear.
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However, the City has not yet formalized these practices through development, implementation, or publication of a policy regarding untimely performance of community service or payment obligations pursuant to Paragraph 346. The Monitoring Team will continue to consult with the City and DOJ to facilitate development of comprehensive policies regarding the community service program and any failure to fulfill payment or community service obligations as a priority for completion by the September 2018 audit period.
7. Implementing requirements for municipal arrest warrants to avoid using them as a means of collecting civil court debt. The City is currently in compliance with Paragraph 347, and the Monitoring Team will continue to monitor compliance with this provision by reviewing the issuance of municipal arrest warrants as a part of each audit period. Both the Municipal Court summons and the Show Cause Notice explain the consequences of a defendant’s failure to appear. However, the City has not yet developed a written policy, procedure, or protocol for compliance with the Show Cause process outlined in subsections (a) through (d) of Paragraph 348. The Monitoring Team will continue to consult with the City and DOJ to facilitate development of a written policy implementing the Show Cause process as a priority for completion by the September 2018 audit period.
8. Ensuring individuals are not held in custody after arrest because they cannot afford the bond. With regard to the requirements of Paragraphs 349 and 350 of the Consent Decree, the City reports that the jail is no longer in use and that detainees are being transferred directly to St. Ann. The Monitoring Team will continue to review custody logs, to the extent they are available, to ensure compliance with these provisions of the Consent Decree.
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9. Ensuring lawful license suspensions and reinstatement procedures. Compliance with Paragraphs 351 and 352 of the Consent Decree will require the Court Staff to: create a mechanism for tracking notifications to the Missouri Department of Revenue when defendants fail to appear or pay outstanding fines in a timely manner; create compliance letters satisfying the requirements of Missouri Revised Statute § 302.341.1; and create a mechanism for tracking issuance of compliance letters to defendants. The Monitoring Team did not provide notice that these provisions of the Consent Decree would be reviewed during the August 2017 audit period, and the City has not yet presented evidence or documentation of compliance with the requirements of Paragraphs 351 and 352. The Monitoring Team will continue to consult with the City and DOJ to facilitate development of a written policy and procedure for issuing and tracking notifications to the Missouri Department of Revenue regarding license suspensions and reinstatements as a priority for completion by the September 2018 audit period.
10. Implementing fair trial procedures. Pursuant to Paragraph 353 of the Consent Decree, the City drafted an order on trial procedures and the Municipal Court Judge signed and issued the order on August 16, 2017. The order on trial procedures is currently available on the City’s website. To its credit, the City developed and implemented the order on trial procedures ahead of the audit schedule issued by the Monitoring Team. The Monitoring Team will consult with the City and DOJ to prioritize for completion appropriate revisions to the order by the June 2018 status hearing, ahead of the September 2018 audit period.
11. Collecting and reporting court data via electronic and online court systems. Pursuant to Paragraphs 354 and 355 of the Consent Decree, the City must further develop its electronic court records management system to facilitate tracking and accessibility of records,
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particularly those relating to reporting requirements imposed by the Consent Decree as well as state law. The Monitoring Team did not provide notice that these provisions of the Consent Decree would be reviewed during the August 2017 audit period, and the City has not yet presented evidence or documentation of compliance with the requirements of Paragraphs 354 and 355. The Monitoring Team will continue to consult with the City and DOJ to facilitate further development of the electronic court records management system as a priority for completion by the September 2018 audit period.
Pursuant to Paragraph 356, the City has reserved a page on its website for publication of the City’s “Monthly OSCA Reports” submitted to the Office of the State Court Administrator (“OSCA”). At the time of issuance of this report, the City has published on its website the June and July 2017 OSCA reports. During each audit period, the Monitoring Team will continue reviewing the City’s website to ensure publication of the most current OSCA reports. However, the Monitoring Team also encourages the City to post the reports in between audits and on a timely and ongoing basis.
12. Ensuring the independence of the Municipal Court from the City Prosecutor. With the issuance of a new policy on May 2, 2016, the City implemented procedures to ensure compliance with substantially all of the requirements of Paragraph 357. However, the policy was silent regarding the maintenance of separate court files. With the hiring of an Administrative Assistant to the City Prosecutor, the City has taken steps toward establishing and maintaining a file system separate and apart from that maintained by the court. During the August 2017 audit period, the separate file system was not fully operational. The Monitoring Team will continue auditing court sessions and random court files to ensure the independence of the City Prosecutor.
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13. Ensuring the impartiality of the Municipal Judge. Consistent with the requirement to ensure the impartiality of the Municipal Court Judge required by Paragraph 358, the City enacted revisions to Ferguson Municipal Code § 13-26 by Ordinance Number 2016-3608, § 1, adopted February 23, 2016. The Municipal Court Judge is also required, by the Circuit Court of St. Louis County, to attend an annual ethics training. During the August 2017 audit, the Monitoring Team observed court sessions, reviewed random court files, and obtained the Municipal Court Judge’s certification of completion of the requisite ethics training. The Monitoring Team was satisfied with these indications of the impartiality of the Municipal Court Judge during the August 2017 audit period, and will continue to monitor compliance with this provision of the Consent Decree during future audits.
14. Ensuring appropriate accommodations for defendants with mental illness or intellectual or developmental disabilities. Pursuant to Paragraph 359 of the Consent Decree, the City must create a policy for the implementation of appropriate mechanisms for providing defendants with mental illness or intellectual or developmental disabilities with information about their available options for diversion from the municipal court system. As a practical means of tracking compliance with this provision, the City will develop a unique code within its database to identify cases in which defendants are referred to specialty court or some other service based on their mental, intellectual, or developmental needs. Once a full policy and protocol has been written, approved, and implemented, the Monitoring Team will continue auditing court sessions, random court files, and the designated code within the court’s database to ensure compliance with Paragraph 359. The Monitoring Team did not provide notice that this provision of the Consent Decree would be reviewed during the August 2017 audit period, and the City has not yet presented evidence or documentation of compliance with the requirements
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of Paragraph 359. The Monitoring Team will continue to consult with the City and DOJ to facilitate development of a policy and protocol pursuant to Paragraph 359 as a priority for completion by the September 2018 audit period.
4. Ongoing Assessment and Improvement Pursuant to Paragraph 360 of the Consent Decree, the City must develop protocols for regularly conducting cost-feasible, data-driven, and qualitative assessments of court practices, designed to ensure that court proceedings are administered fairly and in accordance with policy as well as federal and state law. The Monitoring Team did not provide notice that these provisions of the Consent Decree would be reviewed during the August 2017 audit period, and these protocols have not yet been developed. The Monitoring Team will continue to consult with the City and DOJ to facilitate development of protocols consistent with the requirements of Paragraph 360 as a priority for completion in Year Three. G. Accountability The Parties, in consultation with the Monitoring Team, have drafted three policies with respect to FPD accountability: (1) Duty to Report Misconduct, see id. ¶ 363; (2) Duty of Candor, see id. ¶ 364; and (3) Internal Investigations, see id. ¶369. These policies were reviewed by the Monitoring Team in Year One. The Duty to Report Misconduct and Duty of Candor policies have been implemented. In March 2018, the Monitoring Team completed a second review of the Internal Investigations policy and has submitted edits and comments to the Parties. In addition, a disciplinary matrix, intended to supplement the complaint investigation policy, is currently in the early stages of development. The Parties hosted three accountability forums (on February 11, 12, and 22, 2018) in order to seek input from the community, including youth, on the Internal Investigations policy. During the remainder of Year Two, the parties will incorporate the feedback received from the community into the draft policy. Training on all
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accountability policies as well as on the complaint intake process, as required in Paragraph 322, will be completed in Year Three. During that time, the Monitoring Team will conduct an audit of internal investigations, which will establish a baseline for future audits.
H. School Resource Officer Program The Parties, in consultation with the Monitoring Team, have completed the Memorandum of Understanding (“MOU”) between FPD and the Ferguson-Florissant School District (“FFSD”). See id. ¶ 211. The FFSD has reviewed and commented on the MOU and returned it to FPD. The MOU will be finalized after the Monitoring Team has had an opportunity to review the revised version and to incorporate comments it received during its most recent trip to Ferguson. The Parties have begun developing a School Resource Officer program and operations manual in consultation with FFSD faculty and staff, the Youth Advisory Board, and other FFSD stakeholders. See id. ¶ 210. Implementation of the MOU and program and operations manual will occur during Year Three. I. Body-Worn and In-Car Cameras The Parties developed body-worn and in-car camera policies pursuant to Paragraph 231 of the Consent Decree and submitted them to the Monitoring Team for final approval. See generally Consent Decree, § XII. In addition, FPD personnel have been outfitted with body cameras. During Year Three, the Parties will prioritize implementation and training, as required by Paragraph 231. The Parties will also prioritize the development and/or implementation of protocols regarding storage and retention, with particular focus on facilitating public accessibility of body-worn and in-car camera recordings.
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III. Conclusion Significant work remains to be done before the City will be able to claim full
implementation of the Consent Decree. In particular, the Monitor is concerned that implementation may stall unless the City hires additional personnel to assist with compliance. Specifically, the Monitor recommends that the City hire the following individuals: (1) an outreach coordinator tasked with community engagement and implementation of the numerous Consent Decree provisions that require public education and collaboration with the Ferguson community; (2) an individual within the Municipal Court to assist with policy development and training; and (3) an FPD employee to support policy development, facilitate the conversion of policies into structured and organized trainings, and evaluate whether state and other external training programs comply with FPD’s implemented policies. These roles are critical to achieving compliance with the Consent Decree, and during the remaining quarter of Year Two, the City should prioritize identifying talented individuals to serve in these positions.
Based upon its interactions with the Parties during the reporting period, the Monitoring Team is encouraged by FPD’s and the Municipal Court’s efforts to implement the provisions of the Consent Decree. With personnel and appropriate systems in place for the development and revision of additional policies and training protocols, the City, through FPD and the Municipal Court, has substantially improved its capacity to comply with the Consent Decree and can continue to do so by implementing the Monitor’s recommendations. The Monitoring Team will continue to collaborate with the Parties to ensure compliance, and will continue to detail its progress through semi-annual reports to the Court.
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Date: March 30, 2018

Respectfully submitted,
/s/ Natashia Tidwell Natashia Tidwell Hogan Lovells US LLP 100 High Street 20th Floor Boston, MA 02110 617-371-1076 natashia.tidwell@hoganlovells.com

CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that the foregoing was filed electronically on March 30, 2018 with the Clerk of the Court for the United States District Court for the Eastern District of Missouri, and was served by ECF notice by operation of the Court’s electronic filing system.
/s/ Natashia Tidwell

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 Case: 4:16-cv-00180-CDP Doc. #: 88 Filed: 06/21/18 Page: 1 of 2 PageID #: 1482

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff,

)

)

v.

)

)

THE CITY OF FERGUSON,

)

)

Defendant.

)

)

Case No. 4:16 CV 180 CDP

ORDER MODIFYING CONSENT DECREE

After careful review,

IT IS HEREBY ORDERED that the joint motion to modify Paragraphs 80,

81(a), 115, and 341 of the Consent Decree [86] is granted, and Paragraphs 80,

81(a), 115, and 341 only of the Consent Decree entered on April 19, 2016 [41] are

modified as follows:

1) Paragraph 80 now reads as follows: “FPD officers will not conduct pretextual stops except where the actual reason for the stop is to investigate suspected unlawful conduct that poses a risk to public safety.”

2) Paragraph 81(a) now reads as follows: “Introduce themselves by name and rank as soon as reasonable and practicable. It will be FPD practice to also provide the stopped individual an FPD business card at the end of a stop. The business card should include the name and badge number of the officer’s supervisor;”

3) Paragraph 115 now reads as follows: “FPD will ensure that officers do not search, seize, or otherwise coerce production of recorded sounds, images, or videos

Case: 4:16-cv-00180-CDP Doc. #: 88 Filed: 06/21/18 Page: 2 of 2 PageID #: 1483
without obtaining a warrant. Where an officer has a reasonable belief that a bystander or witness has captured a recording of critical evidence related to a serious crime and the exigencies of the circumstances demand it, the officer may secure such evidence for no more than 12 hours while a legal subpoena, search warrant, or other valid order is obtained. Upon seizing such property, officers may not search or review its contents without first obtaining a search warrant.”
4) Paragraph 341 now reads follows: “The City agrees to maintain a public list of preset fines (Traffic Violations Bureau or “TVB” fines) for all municipal ordinance violations for which preset fines are allowed under Missouri law. The City further agrees to ensure that the fine amounts used for preset fines are consistent with the fine amounts specified on the Uniform Fine Schedule for St. Louis County.”
IT IS FURTHER ORDERED that all remaining provisions of the
Consent Decree entered on April 19, 2016 not specifically modified above
remain in full force and effect.

Dated this 21st day of June, 2018.

_______________________________ CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE

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 Case: 4:16-cv-00180-CDP Doc. #: 85 Filed: 03/30/18 Page: 1 of 40 PageID #: 1425

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v.
THE CITY OF FERGUSON, Defendant.

)
) ) Case No. 4:16-cv-180
) ) Hon. Catherine D. Perry
)
)
)
)

INDEPENDENT MONITOR SPRING 2018 SEMIANNUAL REPORT

I. INTRODUCTION Paragraph 416 of the Consent Decree entered into between the United States Department
of Justice (“DOJ”) and the City of Ferguson, Missouri (the “City”) (together, the “Parties”) tasks the Independent Monitor (the “Monitor” or the “Monitoring Team”) with assessing and reporting on the implementation of the Consent Decree. Specifically, the Monitoring Team must ensure that the implementation of the Consent Decree results in constitutional and lawful policing, the administration of justice, and increased community trust between the public, the Ferguson Police Department (“FPD”), and the Ferguson Municipal Court (the “Municipal Court”). See Consent Decree, ¶ 416. To accomplish this, the Monitoring Team must review policies, training curricula, and other written materials developed by FPD and the Municipal Court, and conduct audits and outcome assessments evaluating the City’s implementation of the Consent Decree’s provisions.
Paragraph 438 of the Consent Decree requires that the Monitor file with this Court, every six months, a written, public report. Id. ¶ 438. The Consent Decree specifies that the reports must include:
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(a) a description of the work conducted by the Monitor during the reporting period;
(b) a list of each Consent Decree requirement, including details regarding which requirements have been incorporated into implemented policy, which are the subject of sufficient training for all relevant FPD officers and employees, and which are found by the Monitor to have been fully implemented in practice;
(c) the methodology and specific findings for each review and audit conducted, redacted where appropriate for privacy concerns;
(d) for any requirements that were reviewed or audited and found not to have been fully implemented in practice, the Monitor’s recommendations regarding necessary steps to achieve compliance;
(e) the methodology and specific findings for each outcome assessment conducted; and
(f) a projection of the work to be completed during the upcoming reporting period and any anticipated challenges or concerns related to implementation of the provisions of the Consent Decree.
This report constitutes the Monitoring Team’s first report for calendar year 2018.1
A. The Monitoring Team
The DOJ and the City of Ferguson submitted a joint motion for entry of the Consent
Decree on March 17, 2016. Dkt. No. 12. This Court granted that motion and endorsed the
Consent Decree on April 19, 2016. Dkt. No. 41 at 133. The Parties’ initial monitor selection
was approved by this Court on July 22, 2016. Dkt. No. 48. After agreement by the Parties and
in consultation with the Court, Natashia Tidwell of Hogan Lovells US LLP was appointed as the
new Lead Monitor on December 12, 2017.2 Dkt. No. 80. This Court stated that “Ms. Tidwell
shall have the duties, authority, and responsibilities of the Monitor as set forth in the Decree,
1 The most recent status report in this case, the “Independent Monitor Initial Work Plan,” was filed on December 5, 2016 by former Lead Monitor Clark Kent Ervin. See Dkt. No. 55. Accordingly, the details of this report will span the reporting period from January 2017 through March 2018. In accordance with Paragraph 439 of the Consent Decree, this report has been agreed to by the Parties. At the start of Year Three, the Monitoring Team will publish a comprehensive work plan, which will include a proposed schedule outlining new benchmarks and goals for the implementation of all aspects of the Consent Decree. 2 Ms. Tidwell, a member of the Monitoring Team since August 2016, assumed the Lead Monitor’s duties on an interim basis in September 2017.
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including the discretion to select additional members of the Monitoring Team pursuant to the procedures set forth in Paragraph 423 of the Decree.” Id.
As Lead Monitor, Ms. Tidwell heads the Monitoring Team. As background on her experience and qualifications as Lead Monitor, Ms. Tidwell began her career in law enforcement as a member of the Cambridge Police Department. While with the department, she worked as a school resource officer and as a Sergeant-Detective in the Internal Affairs Division. In 2003, Ms. Tidwell became the first female lieutenant in the department’s history. After attending law school, Ms. Tidwell served as a federal prosecutor in both the DOJ’s Public Integrity Section and the U.S. Attorney’s Office for the District of Massachusetts. As Counsel with Hogan Lovells US LLP, Ms. Tidwell’s practice focuses on investigations and compliance, and, given her law enforcement expertise, includes serving as a policing subject matter expert for other monitoring teams. Supporting Ms. Tidwell is the Monitoring Team of independent subject matter experts (“SMEs”) and Hogan Lovells attorneys. The members of the Monitoring Team have expertise in policing and court policy review, legal analysis, community engagement, data analysis and informational management, as well as police department training, compliance, and internal affairs. Currently, the members of the team include:
• Kimberly Norwood, Henry H. Oberschelp Professor of Law, Professor of African and African American Studies, Washington University in St. Louis;
• Robert Stewart, Police Practices Expert, President and CEO of Bobcat Training and Consulting Inc.;
• Maggie Goodrich, Technology Consultant, President LE Innovation, Inc.; • Steven Parish, Community Engagement Consultant; • Karla Aghedo, Senior Associate in Investigations, White Collar, and Fraud,
Hogan Lovells US LLP in Houston; and
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• Courtney Caruso, Senior Associate in Investigations, White Collar, and Fraud, Hogan Lovells US LLP in Boston.3
B. The Monitoring Process Through the work of its subject matter experts, the Monitoring Team will conduct reviews and audits to determine whether the City, FPD, and the Municipal Court are in compliance with the Consent Decree, and will provide technical assistance as needed to guide the City through the implementation process. Specifically, the Monitoring Team will ensure timely and complete implementation of the Consent Decree through the following three phases: (1) policy revision and review; (2) training and implementation; and (3) auditing and compliance assessment.
1. Policy Revision and Review The Consent Decree requires FPD and the Municipal Court to incorporate its provisions into specific policies and procedures as appropriate. See Consent Decree, ¶ 42. It further requires the development and implementation of most, but not all, of those policies and procedures within Year One.4 Id. The City has not satisfied this requirement. While progress is being made, the City’s delegation of police-related policy development to one person within FPD, Commander Frank McCall (who was not appointed until October 2016), has resulted in a slower and more gradual policy development process. Despite Commander McCall’s best efforts, the process of revising, and in some instances, drafting from whole cloth, all of the
3 The Monitor intends to engage at least one additional expert to support the implementation of the Consent Decree. 4 Throughout this report, the Monitor refers to “Year One,” “Year Two,” and “Year Three” to identify past achievements and to outline future goals. The monitorship officially began when the former Monitor was appointed by the Court on July 22, 2016. Accordingly, Year One ran from August 2016 through July 2017, Year Two began in August 2017 and will end in July 2018, and Year Three will commence in August 2018.
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policies required under the Consent Decree is work appropriate for more than one person.5 The
Monitoring Team is pleased that the Parties continue to work collaboratively in this area and
have reached an agreement regarding the most efficient method for the FPD policy revision and
review process going forward. This method includes the following seven steps:6
i. Kick-off/Announcement of Policy Area: FPD notifies DOJ and the Monitor of its intent to begin drafting or revising policies in an identified subject area;
ii. Technical Assistance: The appropriate SME on the Monitoring Team provides FPD and DOJ with technical assistance in the form of model policies and/or initial guidance as to best practices in the identified subject area;
iii. Gap Analysis: FPD and DOJ conduct an assessment or gap analysis of FPD’s current state of affairs (i.e., ascertain how FPD’s existing policies, practices, and systems differ from the Consent Decree’s requirements and best practices);
iv. Policy Revision: FPD and DOJ revise policies, practices, and systems in the target subject area to the extent required under the gap analysis;
v. Solicitation of Community Input: Several provisions of the Consent Decree require community involvement in the implementation of specific policies, including those designed to improve police/community relations. The Parties are committed to soliciting community feedback on other policies as well, even where not explicitly required by the Consent Decree. While the Parties continue to evaluate the best means of involving community stakeholders in the policy development process, the Parties have found that policy forums are an effective means of inviting and obtaining community input.
vi. FPD Officer Review: Pursuant to the Consent Decree, see Consent Decree ¶ 43, the City provides officers from varying ranks and units with a meaningful opportunity to review and comment on the new or revised policies and procedures; and
vii. Return to Monitor/SME: Upon completion of a draft policy, the Parties submit the policy to the Monitor and/or appropriate SME for review. The SME will review the policy and either provide final approval or arrange for a conference call to discuss additional revisions.
5 In the Conclusion of this report (see Section III), the Monitor makes specific recommendations for the hiring of additional personnel to assist with Consent Decree implementation. 6 The steps outlined in the process are not necessarily intended to be implemented sequentially. Rather, the Parties and the Monitoring Team will determine the appropriate methodology on a case-by-case basis.
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2. Training and Implementation Pursuant to Paragraph 48 of the Consent Decree, FPD must provide training to its officers on all policies developed by the end of Year Two. Consent Decree, ¶ 48. As detailed above, the measured approach to policy development has hampered the City’s progress in training and implementation. Nevertheless, FPD has made some progress. First, pursuant to Paragraph 56, FPD appointed Sergeant Dominica Morrow as its Training Coordinator. Second, as required under Paragraph 49, the City has established a Training Committee comprised of FPD personnel and members of the Neighborhood Policing Steering Committee (“NPSC”). Lastly, the City has prioritized the development of a training schedule and training plan, which will direct delivery of the required training in Year Three and beyond. Id. ¶¶ 50-51, see also id. ¶¶ 303-322. On January 31 and February 1, 2018, the Monitor met with Sergeant Morrow and Commander McCall to discuss FPD’s delivery of the required training. Sergeant Morrow confirmed that she has begun the process of building up FPD’s capacity to comply with the training requirements of the Consent Decree. As part of this effort, Sergeant Morrow is working with Ms. Goodrich, the Monitoring Team’s technology consultant, to ensure that FPD’s systems are sufficient for organizing and tracking training data. FPD will also need to assess its methods of training delivery, specifically by examining whether, and to what extent, Missouri state certification requirements harmonize with the Consent Decree’s requirements for officer training. For the remainder of Year Two, FPD will continue with these efforts and will prioritize training FPD personnel on the requirements, goals, and expectations of the Consent Decree itself. Id. ¶ 305. The Monitoring team will work with FPD to develop a method for the review of proposed training curricula, materials (including lesson plans and PowerPoint presentations), and delivery. In Year Three, once FPD has instituted the appropriate training
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procedures and systems, the Parties and the Monitoring Team will prioritize training on all developed policies. As is the case with policy revision and review, the Monitoring Team has recommended that the City hire additional personnel with expertise in training development and delivery to assist it in making the completed policies operational through a robust training program.
3. Auditing and Assessing Compliance With the exception of provisions related to court reform and overhaul of the Municipal Code, much of the implementation work remains in the policy revision and review phase. As described in further detail below, some aspects of compliance with the Consent Decree are further along than others. For example, more progress has been made on the municipal court reform section of the Consent Decree than in other areas. As such, the Monitoring Team has already submitted its plan and proposed methodology for auditing court reform provisions in Year Two and beyond.7 The remaining subject areas, particularly those identified below as priority areas for FPD, are still in the early phases of implementation and cannot be audited at this point. However, during the last quarter of Year Two and the first quarter of Year Three, the Monitoring Team intends to conduct some measure of compliance review in at least the areas of Stops, Searches, and Arrests, Use of Force, and Accountability, in order to establish a baseline assessment for future audits.8 The Monitoring Team will notify the Parties thirty days in advance of commencing any audit and will provide a proposed methodology in accordance with
7 The results of the first phase of the Municipal Court audit, completed in August of 2017, are described in Section II(F) below. 8 It is unclear whether FPD currently requires its officers to submit Use of Force reports as circumstances warrant. If such reporting is available, the Monitoring Team will review them to establish a baseline audit of FPD’s use of force. The Monitoring Team recognizes that, in the absence of such reports, it may be necessary to use other means, such as incident and arrest reports, to complete an audit in this area.
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Paragraph 426 of the Consent Decree. At that time, the Monitoring Team will also submit any requests for documents and materials needed to assess compliance. See id. ¶ 426. II. DETAILED STATUS UPDATE
Because the Consent Decree contains numerous objectives and requirements that the City, FPD, and Municipal Court have agreed to implement, the Parties have prioritized specific provisions of the Consent Decree. For FPD, the following six subject matter areas are the priorities: (1) community policing and engagement; (2) bias free police and court practices; (3) stops, searches, citations, and arrests; (4) use of force; (5) recruitment; and (6) accountability (including the Civilian Review Board (the “CRB”)). In addition to these priority areas, the Parties, with support from the Monitoring Team, have continued working toward implementation of the remaining requirements of the Consent Decree, with particular emphasis on implementation of provisions regarding municipal court reform, the school resource officer program, and body-worn and in-car camera policies. This report outlines the efforts of the Parties and Monitoring Team in these areas, and details progress toward full compliance with the Consent Decree. A table outlining the Monitoring Team’s stated goals for Years Two and Three (March 2018 through July 2019) is attached as Appendix A.
A. Community Policing and Engagement The Consent Decree requires that the City and FPD develop and implement FPD community engagement and community policing plans. Id. ¶¶ 20, 26. The Parties circulated a draft community policing policy that, in addition to articulating FPD’s community policing philosophy and its plan for implementation and training on the policy, also recognizes the need for a separate community engagement plan to create opportunities for routine and frequent positive interactions between all representatives of FPD and the community it serves. Following the Monitoring Team’s initial review, the Parties provided the draft policy to the NPSC which
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returned comments to the Parties. Currently, the community policing policy is once again under review by the NPSC, which is examining whether it is satisfied with how its initial comments were incorporated into the draft policy. Following the NPSC’s final review, the Monitoring Team will ensure that the policy is distributed to other community stakeholders, such as the CRB, as outlined in Paragraph 20. By the close of Year Two, after the relevant stakeholders have provided feedback on the draft community policing policy, the Monitoring Team will conduct a final review of the policy and will consult with the Parties to prepare logistics for FPD’s training and implementation on the policy as well as the development of the separate community engagement plan.
In Year Three, the Monitoring Team will also work with the Parties to develop a plan for providing neighborhood mediations as required by Paragraph 33 of the Consent Decree. This plan, which must be developed in consultation with members of the Ferguson community, will include an implementation timeline for interim steps, such as the retention of an administrator and volunteers, training, and the initiation of mediations. Id. ¶ 33. The Monitor has recommended that the City hire an Outreach Coordinator to oversee FPD’s relationships with various neighborhood associations and to assist the City in the establishment of the mediation program and in the identification of a neutral facilitator to lead the series of small-group structured dialogues envisioned in Paragraph 19 of the Consent Decree. The City should develop a plan for implementation of Paragraph 19 in the first quarter of Year Three. To the extent it is necessary, the Monitoring Team may provide technical assistance to the City in identifying and hiring both a neutral facilitator and an Outreach Coordinator.
Finally, with respect to its own community engagement, the Monitoring Team will seek to increase its communications with the Ferguson Community as contemplated by Paragraph 441. Since Ms. Tidwell’s appointment as Lead Monitor in December 2017, she has held two
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town hall-style events as well as open “office hours” for community members to speak with her individually. During the latest town hall, held on March 5, 2018, Ms. Tidwell introduced Robert Stewart, Police Practices Expert, and Steven Parish, Community Engagement Consultant, to the Ferguson Community. Mr. Stewart provided an overview of Community Policing, highlighting its goals as well as common obstacles to its implementation. The Monitoring Team will continue to arrange for frequent opportunities for face-to-face communication with the community as well as with the Parties.
In addition, the Monitoring Team plans to establish other avenues for community members to share their experiences, perceptions, and feedback concerning the City, FPD, and the Consent Decree. First, Steven Parish has joined the Monitoring Team as a Community Engagement consultant. Mr. Parish brings particularized knowledge of the Ferguson community and its various stakeholders and will serve as a local representative of the Monitoring Team in Ferguson. Through the Monitor and Mr. Parish, the Monitoring Team will continue to meet with various community organizations to discuss the ways in which the Monitoring Team and the Parties can rely on such organizations to more effectively liaise with the community. Second, the Monitoring Team is committed to establishing more opportunities for direct communication with the Ferguson community. For example, members of the community may now contact the Monitoring Team directly through the following email address and telephone number: fergusonmonitor@hoganlovells.com / (888) 791-8858. The Monitoring Team has also initiated steps to take over the website launched by the former Lead Monitor (http://www.fergusonmonitorship.com/). Once this website is under the Monitor’s control, it will be updated to reflect information concerning the Monitoring Team and the status of implementation.
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1. The Neighborhood Policing Steering Committee The NPSC was established through city ordinance as was required by Paragraphs 21 and 22 of the Consent Decree. The NPSC conducts much of its work through subcommittees, which meet on a monthly basis and are responsible for specific subject areas, such as community engagement, recruitment, and municipal code reform. The NPSC initially experienced organizational challenges that hindered its effectiveness. However, since the fall of 2017, the NPSC has met regularly and has been successful in holding productive meetings. On December 21, 2017, the NPSC began a series of trainings with Dr. Amber Johnson, Ph.D., which are aimed at increasing the strength of the organization and its capacity to fulfill its responsibilities as set forth in the Consent Decree. Dr. Johnson is a faculty member at Saint Louis University and founder of the Justice Fleet Project. Among other things, the trainings focused on active listening and addressed implicit bias. In addition to NPSC members, representatives from FPD, city council members, and other community stakeholders have attended the trainings. The trainings have been a success and provide the NPSC with a framework for bringing in additional guest speakers in the future. Finally, as described herein, the NPSC has assumed an active role in the development of FPD’s community policing policy and recruitment plan. During the remainder of Year Two, the Monitor will prioritize effective methods of communicating with, and, where appropriate, providing guidance to, the NPSC.
2. Civilian Review Board The City, in consultation with DOJ and the Monitoring Team, has enacted the establishing ordinance for the CRB, which includes protocols for the selection of members, and has developed training materials for its members. The Monitoring Team reviewed and approved these training materials prior to implementation and will continue to evaluate the CRB’s
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participation in the development and revision of policies and training related to Accountability. The CRB continues to develop internal policies/manuals for self-government and to formulate a program for the promotion of public awareness and education as required by Paragraph 405(d),(g). Currently, the CRB meets on a monthly basis.
3. Surveys Paragraphs 429 and 430 of the Consent Decree require that the Monitoring Team conduct annual surveys of members of the Ferguson community, including Ferguson residents, law enforcement personnel, and detained arrestees. In particular, the surveys are aimed at gathering information about (1) the community’s experiences with and perceptions of FPD, public safety, and the municipal court; and (2) police officers’ attitudes regarding their jobs and the Ferguson community. The Officer Attitudes and Perceptions Survey was administered to FPD officers in the late summer of 2017. Richard Trinkner, Ph.D., and Faith Gifford, M.S., of Arizona State University School of Criminology and Criminal Justice provided a descriptive analysis of the survey results. Their report is organized into two basic categories: (1) organizational measures which focus on officers’ attitudes and perceptions about their department and the people in it; and (2) community measures which focus on officers’ attitudes and perceptions about the public and law enforcement strategies. After publication of the full report during Year Two, and in accordance with Paragraphs 432 and 433 of the Consent Decree, the City and FPD will analyze the results of this survey and will use this analysis to modify and improve FPD policies, training, and practices as needed. The Monitoring Team will aid in the Parties’ analysis and, in Year Three, will re-administer the officer survey, using the initial set of results as a baseline measurement against which future surveys may be judged.
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As previously stated in the December 2016 Initial Work-Plan, the Monitoring Team completed a draft of a community-wide survey in Year One. Despite efforts to administer the survey in 2017, however, the Monitoring Team was unable to do so. Accordingly, during the remainder of Year Two, the Monitoring Team will prioritize the administration of the community survey, and, specifically, the identification of an SME who can facilitate the Monitoring Team’s efforts in survey administration, and, if necessary, a community partner able to assist in this area.
B. Bias-Free Police and Court Practices Although bias-free policing and court practices were identified as a priority area in Year One, policy development has yet to begin. Accordingly, bias-free police and court practice policy development should be completed within the next reporting period with implementation and training initiated during Year Three. The Monitoring Team will also prioritize the development and implementation of policies and training for individuals who have a limited ability to speak, read, write, or understand English. See id. ¶ 67. Finally, to the extent practicable, FPD will commence, in Year Three, a review of policies pertaining to officer response to allegations of domestic violence and sexual assault. See id. ¶ 68. Further details regarding bias-free court practices are contained in the section below addressing Municipal Court Reform. C. Voluntary Contacts, Stops, Searches, Citations, and Arrests Pursuant to the policy review and revision process detailed in Section I(B)(1) of this report, FPD is currently in the process of conducting a gap analysis with respect to its stop, search, and arrest policies. The Parties will revise these policies during the last quarter of Year Two. In preparation for training on these policies, the Monitoring Team will conduct an audit of
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citations, arrest reports, and field inquiry reports (if available) to establish a baseline for future audits and to provide technical assistance to FPD in the drafting of policies in this area.
D. Use Of Force The Parties have drafted an umbrella policy pertaining to the use of force as well as a suite of policies that correspond to various instrumentalities of force and a process for reporting and investigating uses of force. See generally Consent Decree, § IX. The suite of policies includes general orders on each of the following topics: lethal/less lethal force; firearms; electronic control weapons; batons; OC spray; less lethal bean bag shotguns and ammunition; canines; vehicle pursuits; force reporting; force response and investigation; critical incident response; and the Force Review Board. The Parties have also completed flow charts, which accompany the Force Response and Investigation Policies, for incidents involving Types 1, 2, and 3 use of force. During Year Two, the Parties held multiple policy forums in which Ferguson community members were invited to review and provide feedback on the use of force policies. The community forums included a general presentation of the policies by the Parties as well as an opportunity for community members to engage in dialogue in a small-group setting. After these forums, the Parties revised the policies to incorporate feedback received from the community. The policies were presented to the Monitoring Team for final approval in February 2018, and the Monitoring Team provided feedback and comments to the Parties in March 2018. During the remainder of Year Two, the Monitoring Team will assist in the finalizing and completion of use of force policy development. Training on these policies will commence in Year Three. In addition, the Monitoring Team will conduct an audit of FPD use of force and incident reports, to the extent they are available, in order to establish a baseline for future audits and to provide technical assistance to FPD in developing training in this area.
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E. Recruitment The Parties have drafted a Recruitment Plan for attracting and retaining a high-quality and diverse work force as required by Paragraphs 282 and 283 of the Consent Decree. While the Monitoring Team conducted an initial review of the Recruitment Plan during Year One, the Monitoring Team requested the opportunity for Mr. Parish, its Community Engagement Consultant, to also review the plan and to offer feedback. The Parties agreed. Final approval of the plan is pending as the City has not yet developed a method for complying with Paragraph 283(a), which requires the City to offer salaries that will place FPD among the most competitive of similarly sized agencies in St. Louis County. Accordingly, in the final quarter of Year Two, the City should develop a plan for compliance with this provision. During Year One, the background investigation and screening system required by Paragraphs 288 and 289 of the Consent Decree was developed by FPD and approved by the Monitor. The background investigation manual is currently in use by FPD. Before the close of Year Two, Chief Moss will explain the provisions of the Recruitment Plan to rank and file members of FPD as is required under Paragraph 284. The City will provide an outline of Chief Moss’s presentation and any accompanying materials along with a proposed schedule to the Monitoring Team thirty days in advance of implementation. The Monitoring Team will review job applications and background investigation files to assess compliance. In Year Three, the City Manager, in consultation with the Chief of Police, the Monitor, and the DOJ, will revise the plan as necessary. F. Municipal Court Reform Reform of the Ferguson Municipal Court has progressed significantly under the Consent Decree. Pursuant to Paragraph 323 of the Consent Decree, the Monitoring Team has engaged with DOJ and the City to reform the Municipal Court to ensure that the Municipal Code is
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enforced for the purpose of protecting public safety and to enable the fair and impartial resolution of municipal charges. The Parties have agreed to several measures designed to ensure that enforcement of the Municipal Code is driven by public safety, including implementation of the Comprehensive Amnesty Program, revision of practices of the Municipal Court, and ongoing assessment and improvement of the Municipal Court.
With assistance from the Court staff, including the Court Clerk and Municipal Court Judge and the City Attorney, the City of Ferguson has worked cooperatively with DOJ and the Monitoring Team to develop, revise, and implement policies and procedures that effectively address the findings of DOJ’s investigation and related provisions of the Consent Decree. While several provisions have not yet been addressed, the City of Ferguson continues to collaborate with DOJ and the Monitoring Team to advance the goals of the Consent Decree with specific goals and timelines to guide this effort.
1. Audit Procedures & Compliance Pursuant to Paragraph 424 and consistent with its responsibility to ensure compliance with the Consent Decree, the Monitoring Team established a biannual audit schedule of the specific provisions addressing Municipal Court reform. 9 The first audit was conducted in August 2017. In preparation for the August 2017 audit, the Monitoring Team sent a work plan to the Parties identifying twenty provisions of the Consent Decree designated for auditing. For some provisions of the Consent Decree, the Monitoring Team elected to defer auditing those provisions until a later date, recognizing the City’s need to prioritize and focus its reform efforts, rather than attempt to address all of the provisions at one time without sufficient resources to do so. The procedures for auditing the relevant provisions were divided into six categories:
9 The Monitoring Team initially proposed an August/February audit schedule. Due to changes in the Monitoring Team and to ensure better coordination of effort, the biannual audits will now take place in March and September.
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i. Document Review: The Monitoring Team requested to review policies, procedures, and other documents such as the City budget during the audit;
ii. City Ordinance Review: The Monitoring Team reviewed the City ordinances that the City was required to enact, repeal, or revise in compliance with the Consent Decree. Most, if not all, required changes to City ordinances were completed before the effective date of the Consent Decree;
iii. Database Review: The Monitoring Team requested access to or reports from the court’s computerized database, ITI, during the audit to confirm the existence, or non-existence of arrests and citations for rescinded ordinances like Failure to Appear; to collect data related to the so-called “good cause” cases from prior to January 1, 2014, pursuant to the Comprehensive Amnesty Program; and to confirm the status of associated warrants. There were some technical difficulties in accessing the database during the audit period; specifically, there was some question as to who should bear the expense for ITI making a copy of the database available to the Monitoring Team. At the time of issuance of this report, the Monitoring Team does not have remote access to ITI and currently accomplishes confirmation of information available in the database through onsite visits or specific requests for reports from the Court Staff;
iv. Website Review: The Monitoring Team reviewed the City’s website and the specific pages designated for the Ferguson Municipal Court, as well as the website of the City’s online payment vendor, to audit compliance with the Consent Decree provisions requiring the City to maintain a website and to make certain information readily accessible;
v. Municipal Court Case File Review: The Monitoring Team requested onsite review of case files to audit compliance with the Consent Decree provisions related to the Comprehensive Amnesty Program and the reduction or dismissal of cases in which defendants were subject to fines and fees related to Failure to Appear charges. The Monitoring Team notified the Court Staff prior to the court visit to have cases made available for review; and
vi. Observation of Municipal Court Operations: The Monitoring Team attended court sessions to observe the operations of the Ferguson Municipal Court, pursuant to several provisions of the Consent Decree, including required notifications to defendants, ability-to-pay determinations, options related to alternative sentences (e.g., community service in lieu of payment of fines) and payment plans, and the conduct of the Municipal Court Judge and City Prosecutor to ensure their independence and impartiality.
Each provision related to Municipal Court Reform has been evaluated and provided with a
compliance grade for the August 2017 audit period based on the following scale:
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i. In Compliance: Indicating that the City has fully satisfied the written requirements of the Consent Decree provision and fulfilled the purpose of the provision by doing so;
ii. Partial Compliance: Indicating that the City has satisfied some but not all requirements of the Consent Decree provision;
iii. Initial Development: Indicating that, during the audit period, the City has taken at least one measure in the process of fulfilling the requirements of the Consent Decree, but has not yet completed its requirements;
iv. Out of Compliance: Indicating that the City received notice that the Consent Decree provision would be assessed during the audit period, but has not yet fulfilled the requirements of the provision and has not taken meaningful steps to do so; and
v. Not Assessed: Indicating that the Monitoring Team did not give the City notice that this provision of the Consent Decree would be assessed this reporting period. For Consent Decree provisions that the City addressed ahead of schedule, without notice of assessment from the Monitoring Team, the City has received one of the compliance grades outlined above.
2. Summary of Audit Findings
The findings of the audit are outlined below in Table 1: Ferguson Municipal Court
Reform at a Glance, with reference to specific provisions of the Consent Decree as applicable.
The specific bases for these ratings are explained in further detail below in Section II(F)(3) of
this report.
Table 1: Ferguson Municipal Court Reform at a Glance

Consent Decree Provision

Audit Procedures

Status

¶ 324: Ensure cap on revenue from municipal fines and fees
¶ 325: Remove municipal court from oversight of City Finance Director
¶ 326: Implement Comprehensive Amnesty Program for cases without a disposition initiated before January 1, 2014, and repeal all or parts of Ferguson Municipal Code §13-60, §13-63, §1370(2) and (3), and §44-50

Document Review: City budget and financial records
Observation of Municipal Court Operations and review of city budget
City Ordinance Review; Database Review of pending and closed cases; Municipal Court Case File Review of pending and closed cases; Observation of Municipal Court Operations

In Compliance
In Compliance
Initial Development ¶ 326(a) – Initial Development
¶ 326(b) – In Compliance ¶ 326(c) – In Compliance ¶ 326(d) – In Compliance

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¶ 327: Implement Comprehensive Amnesty Program, eliminate charges, and cancel warrants for cases without a disposition initiated before January 1, 2014
¶ 328: Develop and implement policies to ensure fair administration of justice
¶ 329: Increase transparency of court operations
¶ 330: Develop and implement plan for public education campaign about municipal court
¶ 331: Make information available regarding cost-free legal assistance
¶ 332: Provide adequate notice of charges, options, requirements, and consequences
¶ 333: Provide clear information regarding rights and responsibilities
¶ 334: Monthly audits of citations to ensure proper completion
¶ 335: Maintain current contact information for individuals with pending cases
¶ 336: Revise online payment system to allow late payments and payment plan installations
¶ 337: Online access to charging details and status for defendants
¶ 338: Ensure privacy protections for online court systems
¶ 339: Eliminate unnecessary barriers to resolving cases
¶ 340: Provide appropriate ability-topay determinations
¶ 341: Maintain public list of preset fines, accounting for punitive nature, local income levels, and regional averages
¶ 342: No additional fines and fees for Failure to Appear or violations of repealed code provisions §13-60, §1363, §13-70(2), or §13-70(3).

Database Review of pending and closed cases; Municipal Court Case File Review of pending and closed cases; Observation of Municipal Court Operations
City Ordinance Review; Website Review; Observation of Municipal Court Operations
Website Review
Website Review; Observation of Municipal Court Operations
Website Review; Observation of Municipal Court Operations
Document Review of citation and arrest notice; Website Review
Document Review of citation and arrest notice; Website Review
Document Review of draft policy
Observation of Municipal Court Operations
Website Review
Document Review of Memorandum of Understanding; Website Review Document Review of vendor policy; Website Review Document Review of draft policy; City Ordinance Review; Website Review; Observation of Municipal Court Operations Website Review; Observation of Municipal Court Operations
Document Review of current fines and fees schedule; Website Review; Observation of Municipal Court Operations
City Ordinance Review; Database Review of pending and closed cases; Municipal Court Case File Review of pending and closed cases; Observation of Municipal Court Operations

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Initial Development
Initial Development Initial Development
Not Assessed Out of Compliance Initial Development Initial Development Initial Development Partial Compliance Partial Compliance Initial Development Initial Development Initial Development Initial Development Partial Compliance
In Compliance

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¶ 343: Provide alternative sentence and Website Review; Observation of Municipal

payment plan options

Court Operations

¶ 344: Implement community service as Website Review; Observation of Municipal

a sentence alternative

Court Operations

¶ 345: Provide options for courtmanaged payment plans

Website Review; Observation of Municipal Court Operations

¶ 346: Appropriate debt collection for failure to complete community service or payments in timely manner

Website Review; Observation of Municipal Court Operations

¶ 347: Prohibition on arrest warrants to Database Review of warrants; Observation

collect civil court debt

of Municipal Court Operations

¶ 348: Develop and implement policy to ensure arrest warrants are issued only after exhausting measures to secure defendant’s appearance

Website Review; Observation of Municipal Court Operations

¶ 349: Ensure no custody based on ability to pay monetary bond

Document Review of custody logs where available; Website Review; Observation of Municipal Court Operations

¶ 350: Develop and implement plan eliminating use of fixed monetary bond schedule

Document Review of court order submitted by City; Website Review

¶ 351: Reporting failure to appear or pay fines for moving traffic violation to Missouri Department of Revenue only to extent required by law

Database Review; Observation of Municipal Court Operations

¶ 352: Provide compliance letters for suspended license based on Missouri Revised Statute §302.341.1 immediately following court appearance

Database Review; Observation of Municipal Court Operations

¶ 353: Develop and implement trial procedures ensuring fair and impartial conduct of trial

Document Review of draft policy; Website Review; Observation of Municipal Court Operations

¶ 354: Ensure online court systems allow collection of aggregate data for court data collection and reporting requirements

Database Review

¶ 355: Ensure electronic records management system has appropriate controls to limit user access and ability to alter case records, and comports with applicable law

Database Review

¶ 356: Provide timely and accurate reports to Missouri State Courts Administrator (MSCA) and make MSCA reports and other court data accessible to public

Website Review

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Initial Development Initial Development Initial Development
In Compliance In Compliance Initial Development In Compliance Initial Development Not Assessed
Not assessed Initial Development Initial Development
In Compliance
In Compliance

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¶ 357: Ensure municipal court operates independently of City Prosecutor
¶ 358: Ensure impartiality of municipal court judge
¶ 359: Ensure appropriate accommodations for individuals with mental, intellectual, or developmental disabilities
¶ 360: Develop protocols for conducting cost-feasible, data-driven, and qualitative assessments of court practices

Document Review of May 2016 policy; Ordinance Review; Observation of Municipal Court Operations Ordinance Review; Observation of Municipal Court Operations
Website Review; Observation of Municipal Court Operations
Document Review; Website Review

Partial Compliance In Compliance
Initial Development
Not Assessed

3. Detailed Audit Findings The detailed findings of the August 2017 audit are provided in this section of the report with reference to specific provisions of the Consent Decree as applicable, along with recommendations for next steps and a proposed timeframe for auditing compliance with the respective provision. Where a certain provision was not reviewed during the August 2017 audit, this is specifically noted and the report provides a summary of any progress related to the provision, followed by recommendations for next steps and a proposed timeframe for auditing compliance with the provision. As mentioned above, the Monitoring Team did not include all provisions of the Consent Decree in the August 2017 audit to avoid undermining the City’s resources and to facilitate prioritization of the City’s efforts to comply.
a. Ensuring that Municipal Code Enforcement is Driven by Public Safety (Paragraphs 324 & 325)
Pursuant to Paragraph 324 of the Consent Decree, the City achieved full compliance with the 12.5 percent cap on revenue from municipal fines and fees, consistent with the mandate of Mo. Rev. Stat. § 479.350, and remained in full compliance with this provision during the August 2017 audit period. According to the City Budget for fiscal year 2016-2017, the actual

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revenues from fines and fees was under 12.5 percent of total revenues for the City, as was the amount of revenue from fines and fees for the 2017 forecast.
Pursuant to Paragraph 325 of the Consent Decree, the City, by order of the City Manager, successfully removed the Municipal Court from the oversight of the City Finance Director. The organizational chart submitted with the City’s budget for fiscal year 2017-2018 reflects the change. Effective July 1, 2017, as part of a larger restructuring of the municipal courts in St. Louis County, the Ferguson Municipal Court is required to certify, to the Presiding Circuit Judge of St. Louis County, its compliance with circuit court operating rules and procedures, effectively confirming that the Municipal Court falls within the Circuit Court’s supervision. During the August 2017 audit, the Monitoring Team reviewed Ferguson’s annual certification of compliance.
b. Comprehensive Amnesty Program (Paragraphs 326 & 327) Pursuant to Paragraph 326 of the Consent Decree, the City has implemented a Comprehensive Amnesty Program which includes a process for declining to prosecute all open cases without a disposition that were initiated prior to January 1, 2014, unless the City Prosecutor finds good cause to continue the prosecution. As of the August 2017 audit, the City was not in full compliance with Paragraph 327 of the Consent Decree, requiring implementation of the Comprehensive Amnesty Program within 30 days of the effective date of the Consent Decree; the elimination of all relevant charges, fines, and fees pending from cases initiated prior to January 1, 2014; and the cancellation of any municipal arrest warrants or collection of fines and fees associated with these cases. However, the City has developed a plan for implementing the Comprehensive Amnesty Program and has started implementation of the plan. In agreement with DOJ and in consultation with the Monitoring Team, the City has established a review process and schedule for the City Prosecutor and Court Staff to complete
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review of the cases initiated prior to January 1, 2014, with expectations that this review process
will be completed by the June 2018 status conference, well ahead of the September 2018 audit
period.
To fully implement the Comprehensive Amnesty Program, the Parties have agreed to the
following:
i. The City Prosecutor will create good cause criteria by which to evaluate all cases without a disposition that were initiated prior to January 1, 2014. The criteria were developed and approved by DOJ and the Monitoring Team;10 and
ii. The City Prosecutor will review all cases without a disposition that were initiated prior to January 1, 2014 to determine whether to decline prosecution or move forward with the case because it fits within one of the good cause criteria, and will document which of the good cause criteria has been satisfied for each of the cases that remains open for continued prosecution. The City Prosecutor and the Municipal Court staff have initiated, but not completed, the good cause review process.
As of February 28, 2018, the City Prosecutor and Court Staff have reviewed and
recommended a disposition for 6,085 cases initiated prior to January 1, 2014 under the
Comprehensive Amnesty Program. There are 1,847 cases that have not yet been reviewed. The
City has committed to completing the pre-2014 case review process no later than June 2018 in
advance of the June status conference and hearing before Judge Perry.
Pursuant to Paragraph 326(b) of the Consent Decree, and through an order issued by the
Municipal Court Judge, the City has eliminated all pending charges, fines, and fees related to
Failure to Appear Violations without requiring defendants to make bond payments, appear in
court, or take any other action. All such cases have been cleared out of the Municipal Court’s
electronic database and tracking system. During the August 2017 audit, the Monitoring Team
was able to confirm that there were no active or pending Failure to Appear cases in the system.
10 The good cause criteria were modified in early March 2018 to reflect changes to Standard 3 related to Driving While License Suspended and Driving While License Revoked cases. The Parties and the Monitoring Team agreed to these changes. The modified good cause criteria are provided in Appendix B.
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Pursuant to Paragraph 326(c) of the Consent Decree, the City has repealed all or parts of Ferguson Municipal Code § 13-60, § 13-63, § 13-70(2) and (3), and § 44-50, and has eliminated all pending fines and fees imposed pursuant to the applicable provisions of these sections. According to the version of the Municipal Code available online, the City repealed § 13-60 in its entirety on May 26, 2015; removed the provisions of § 13-63 authorizing special deterrent fees as part of parole and probation on February 23, 2016; removed the provisions of § 13-70(2) and (3) authorizing fees for continuing court proceedings, issuing and serving warrants, mileage, and witness fees other than costs associated with calling an expert witness to prosecute a charge of driving while under the influence on February 23, 2016; and repealed § 44-50 in its entirety on September 23, 2014. All cases related to these rescinded provisions have been cleared out of the Municipal Court’s electronic database and tracking system. During the August 2017 audit, the Monitoring Team confirmed that there were no active or pending cases in the system associated with these provisions.
Pursuant to Paragraph 326(d) of the Consent Decree, the City has taken measures to ensure that, where a defendant has made total payments that exceed the amount of the initial fines and fees imposed for a municipal ordinance violation, including payments for associated Failure to Appear Violations, the City has recommended that the fines be stayed and the case be closed without requiring defendants to make a bond payment, appear in court, or take any other action. Where payments have been made that do not total or exceed the original fine amount, the City has recommended lowering the fine and fee debts owed down to the amount of the initial fines and fees imposed, minus any payment already made by the defendant.
As part of the August 2017 audit process, the Monitoring Team reviewed a random sample of ten percent of cases in which the Municipal Court’s electronic database and tracking system reflect either a reduced fine amount or an outright dismissal due to the defendant’s
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payment of fines stemming from Failure to Appear charges under Ferguson Municipal Code § 13-58. There were 183 such cases from January through July 2017, totaling $51,627.50. Although not required to do so under the Consent Decree, the Municipal Court also dismissed a substantial number of cases (with a disposition) due to case age. There were 192 such cases from January through July 2017, totaling $60,546.00. The Monitoring Team also reviewed a random sample of ten percent of these cases. In sum, the Monitoring Team reviewed 37 case files during the August 2017 audit, some dating as far back as 2004, and found that the fines were reduced or dismissed as appropriate under the Consent Decree in each of these cases.11 The Monitoring Team will continue to review a ten percent random sample of these categories of cases as part of the biannual auditing process.
c. Revision of Ferguson Municipal Court Practices (Paragraphs 328 through 359)
Pursuant to Paragraph 328 of the Consent Decree, and in conjunction with DOJ, the City has started the process of developing and implementing the ordinances and policies necessary to ensure the fair administration of justice as well as the constitutionality and legality of Municipal Court procedures. This process has not yet been completed. The goal is for the City to develop a comprehensive manual of all policies, procedures, and protocols related to the Municipal Court. Specifically, the City has agreed to remediate fourteen key aspects of the Municipal Court. The following represents a summary of the status of each of these fourteen aspects of the Municipal Court procedural remediation agreement:
11 While the bulk of these cases were ultimately dismissed due to age or because the defendant’s Failure to Appear payments exceeded the balance owed, those that remain open are ineligible for “good cause” review because the defendant has pleaded guilty or been found responsible.
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1. Increasing transparency of court operations. Under Paragraph 329, the City has made progress on increasing the transparency of Municipal Court operations by enhancing the information available through its website. The City’s website now contains clear and accurate information about the Municipal Court process and all of the specific information required by Paragraph 329, with the exception of the most recent schedule of pre-established fines and fees. The schedule of fees available on the City website became effective by order issued on December 12, 2016, whereas the City’s online payment vendor, The Payment Group, has a City of Ferguson schedule of fees on its website which became effective May 31, 2017. This discrepancy needs to be reconciled.
Additionally, the City’s website currently does not contain information regarding how to obtain cost-free legal assistance to defend against a pending charge regardless of the fine amount or possible sentence, though it does make clear that an attorney will be provided by the Court if the defendant faces the possibility of jail time. See id. ¶ 331. The City should also evaluate other means of increasing the transparency of court operations in ways that are meaningful for citizens in the community it serves, including through print media and phoneaccessible information.
The City has not yet developed and implemented a plan for a public education campaign aimed at spreading accurate and complete information about the Municipal Court’s operations. See id. ¶ 330. This provision was not assessed by the Monitoring Team during the August 2017 audit period, but will be addressed in a future audit, likely during the September 2018 audit. During a February 2018 visit to Ferguson, the Monitoring Team met with City officials and Jack Kirkland, MSW, Associate Professor at the George Warren Brown School of Social Work, Washington University in St. Louis, and discussed the public education efforts required by the Consent Decree. Professor Kirkland, an expert in issues of community work, group relations,
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social development, racism, social planning, and urban environments, has offered to assist in the City’s efforts to more effectively communicate with the Ferguson community, particularly with respect to the City’s obligation to educate local residents and stakeholders about Municipal Court operations. During the remainder of Year Two and throughout Year Three, the City will utilize interns in Professor Kirkland’s courses to assist in the development of community engagement and education plans.
2. Ensuring adequate notice to individuals charged with a violation of the Ferguson Municipal Code. To ensure individuals charged with violations receive adequate and reliable information about their rights, the City has provided citations, summonses, arrest notification forms, and other charging documents used by the FPD, which reflect most, but not all, of the information required under Paragraph 333 of the Consent Decree. The City must revise the citation document to provide a clear statement notifying the recipient of the right to challenge the charge in court and instructions regarding how to do so, see id. ¶ 333(d); to provide a clear statement that the recipient is entitled to have the amount of the imposed fine proportioned to the recipient’s ability to pay, see id. ¶ 333(h); to provide the range of possible penalties for failing to meet court requirements, see id. ¶ 333(i); and to provide clear instructions regarding how to acquire information regarding a pending charge, including how to contact a clerk of the Municipal Court by phone or in person, see id. ¶ 333(j).
Pursuant to Paragraph 333, the City has drafted a plan for performing monthly audits of citations, arrest notification forms, and other notices of violations used by officers to ensure that such documents are completed properly and provide the recipient with thorough and accurate information. During the next audit period, the Monitoring Team and DOJ will work with the City to revise the plan to ensure that it identifies the person conducting the audits, the reporting
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mechanism for the audits, and the accountability measures for failure to accurately complete the notices of violations. See id. ¶ 334.
During the August 2017 audit period, the Monitoring Team observed Night Court proceedings and confirmed that Court Staff are requesting updated contact information by providing each defendant who appears in court with an “Updated Contact Information” Form, pursuant to Paragraph 335. Completion of the form is optional, however, and it appears that few defendants actually do so. When a defendant opts to complete the form, it is placed in his/her case file. During one court session, the Monitoring Team overheard defendants express reservation about completing the form due to mistrust of government officials having access to private information. To enable auditing of this provision, the City should develop a form or certification that Court Staff can use to record a defendant’s refusal to provide updated contact information.12 Future audits will likewise confirm that updated contact information is being requested during court sessions and that the updated contact information or refusal to provide such information is entered into and maintained within the defendant’s municipal court file.
3. Revising the online payment system to make all municipal court payments available online except where prohibited by law. Pursuant to Paragraph 336 of the Consent Decree, the City has engaged an outside vendor called The Payment Group (“TPG”) to manage its online payment system. However, under the link to the “Ferguson Municipal Court” on the TPG website, the statement “All payments made here must be in full” could mislead a user into believing that the City does not accept partial payments online, when in fact, it does.
12 In a post-session review of case files of those defendants who appeared during the Night Court session, the Monitoring Team observed blank “Updated Contact Information” forms in case files, which was ostensibly designed to indicate a defendant’s refusal to complete the form. Nonetheless, a more formal protocol would better capture the data required by Paragraph 335.
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Underneath the “Ferguson Municipal Court” link is another link to “Ferguson Partial Payments” where users can make partial payments, or payment plan installments, in compliance with Paragraph 336. The Monitoring Team recommends adding language to the “Ferguson Municipal Court” link stating that “Partial payments or payment plan installments must be made through the Ferguson Partial Payments page” and providing a link from the “Ferguson Municipal Court” page to the “Ferguson Partial Payments” page to avoid any confusion. The City website should also be revised to clearly indicate that late payments will be accepted via the online payment system, in compliance with Paragraph 336.
Pursuant to Paragraph 337, the City has entered into a Memorandum of Understanding with Rise Community Development/CivTech St. Louis signifying an intent to work together to make the “YourSTLCourts” online court information system available to recipients of tickets relating to municipal code violations that occur in the City of Ferguson. The Monitoring Team did not provide notice that this provision of the Consent Decree would be reviewed during the August 2017 audit period; the City’s efforts on this provision are ahead of scheduled expectations and are commendable in that regard. The Monitoring Team will continue to consult with the City to facilitate development of the online court information system capable of providing the information specified in Paragraph 337.
To address the requirements of Paragraph 338, the City has provided the Monitoring Team with a copy of the Privacy Policy of TPG. However, neither the Ferguson Municipal Court website nor the TPG website contains a reference to or link to the Privacy Policy of TPG. The Monitoring Team will continue to consult with the City and DOJ to facilitate further development of the privacy protections necessary to protect a defendant’s personal information, including any necessary revisions to the current policy and the way it is made available to defendants.
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4. Eliminating unnecessary barriers to resolving cases. While an adequate written policy has not yet been approved, the Municipal Court has implemented the procedures detailed in subsections (a) through (e) of Paragraph 339, including drafting and publishing on the City’s website a process for requesting continuances by email or fax. However, the order outlining the process for requesting consideration of a continuance has not yet been approved by the Monitoring Team because it falls short in two respects: (1) the procedure fails to provide an option for requesting continuances by phone; and (2) the procedure fails to fully advise defendants about how a continuance request will be evaluated, such as by providing examples or further explanation of the “good faith” and good cause considerations by the Municipal Court Judge, or by specifying the definition of “medical reasons” as a good cause exception allowing the Court Clerk to grant a continuance. To enable effective auditing of compliance with the continuance request process required by Paragraph 339(b), the City must also develop a method of recording all requests for a continuance and whether those requests were granted or denied. The Monitoring Team will continue to consult with the City and DOJ to facilitate further development of the continuance request process.
The City also submitted Municipal Division Operating Order #4, promulgated by the St. Louis County Circuit Court, and adopted by the Ferguson Municipal Court in an effort to comply with Paragraph 339 (as well as Paragraphs 348-350, 357-358). While Operating Order #4 covers several important topics related to the administration of the Municipal Court, it fails to adequately and specifically memorialize the policies designed to address subsections (a) through (e) of Paragraph 339. For example, the City must establish and publish criteria for determining when partial payments or payment plan installments will be accepted. The Monitoring Team will continue to consult with the City and DOJ to facilitate further development of written
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policies designed to eliminate unnecessary barriers to resolving cases through the Municipal Court.
5. Conducting ability-to-pay determinations in conjunction with imposing fines and fees. The City has not yet developed a policy to ensure that defendants are provided with appropriate ability-to-pay determinations consistent with subdivisions (a) thorough (e) of Paragraph 340 of the Consent Decree. However, observations of court indicate that individuals are asked about their ability to pay before fines are imposed. The Monitoring Team did not provide notice that this provision of the Consent Decree would be reviewed during the August 2017 audit period; therefore, the City’s efforts on this provision are ahead of scheduled expectations and are commendable in that regard. Because a policy is needed to ensure these determinations are made consistently and in line with Paragraph 340, the Monitoring Team will continue to consult with the City and DOJ to facilitate development of the ability-to-pay determinations policy as a priority for completion by the September 2018 audit period.
The Parties have agreed in principle that the county-wide Uniform Fine Schedule currently in use by the City of Ferguson is sufficient to satisfy Paragraph 341, which requires the City to set fine amounts that are “not overly punitive, that take into account the income of Ferguson residents, and that are under no circumstances greater than regional averages for specific offenses.” Id. ¶ 341.
Consistent with the requirements of Paragraph 326(c), the City has repealed all or parts of Ferguson Municipal Code § 13-60, § 13-63, § 13-70(2), and § 13-70(3), and has not imposed any additional charges, fines, fees, or costs in response to any alleged or found “Failure to Appear” Violation or other violations previously imposed pursuant to the applicable provisions of these sections, in full compliance with Paragraph 342.
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6. Ensuring appropriate alternative sentences, like community service, and the availability of payment plan options. Pursuant to Paragraphs 343 through 346 of the Consent Decree, the Municipal Court provides for appropriate alternative sentences such as community service and payment plan options for satisfying fines, fees, and costs. As part of the community service alternative, the City has identified local and regional community organizations that will permit defendants to satisfy court obligations through community service at a rate of $10 for every one hour of community service performed. Additionally, the Municipal Court currently provides each defendant with a “Know Your Rights” form upon their appearance in court, explaining the right to make periodic payments, to present evidence of financial condition if unable to pay, and to request community service as an alternative.
However, the City has not yet developed a comprehensive community service program, including reasonable time periods for the completion of community service obligations that take into account a defendant’s existing employment and familial obligations, as required by Paragraph 344. Nor has the City developed a policy designed to ensure that defendants are provided with options for court-managed plans with reasonable periodic payments starting with an ability-to-pay determination or uniform procedures for seeking modifications to periodic payment plans pursuant to Paragraph 345.
Currently, in practice, defendants who fail to fulfill payment or community service obligations in a timely manner are given additional time to comply. There is no threat of arrest unless the defendant fails to appear in court to request additional time. As of the August 2017 audit period, a defendant who misses a payment or community service obligation would be summoned into court by the usual Show Cause process. After two consecutive missed appearances, an arrest warrant would issue for the underlying offense rather than for the currently obsolete Failure to Appear.
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However, the City has not yet formalized these practices through development, implementation, or publication of a policy regarding untimely performance of community service or payment obligations pursuant to Paragraph 346. The Monitoring Team will continue to consult with the City and DOJ to facilitate development of comprehensive policies regarding the community service program and any failure to fulfill payment or community service obligations as a priority for completion by the September 2018 audit period.
7. Implementing requirements for municipal arrest warrants to avoid using them as a means of collecting civil court debt. The City is currently in compliance with Paragraph 347, and the Monitoring Team will continue to monitor compliance with this provision by reviewing the issuance of municipal arrest warrants as a part of each audit period. Both the Municipal Court summons and the Show Cause Notice explain the consequences of a defendant’s failure to appear. However, the City has not yet developed a written policy, procedure, or protocol for compliance with the Show Cause process outlined in subsections (a) through (d) of Paragraph 348. The Monitoring Team will continue to consult with the City and DOJ to facilitate development of a written policy implementing the Show Cause process as a priority for completion by the September 2018 audit period.
8. Ensuring individuals are not held in custody after arrest because they cannot afford the bond. With regard to the requirements of Paragraphs 349 and 350 of the Consent Decree, the City reports that the jail is no longer in use and that detainees are being transferred directly to St. Ann. The Monitoring Team will continue to review custody logs, to the extent they are available, to ensure compliance with these provisions of the Consent Decree.
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9. Ensuring lawful license suspensions and reinstatement procedures. Compliance with Paragraphs 351 and 352 of the Consent Decree will require the Court Staff to: create a mechanism for tracking notifications to the Missouri Department of Revenue when defendants fail to appear or pay outstanding fines in a timely manner; create compliance letters satisfying the requirements of Missouri Revised Statute § 302.341.1; and create a mechanism for tracking issuance of compliance letters to defendants. The Monitoring Team did not provide notice that these provisions of the Consent Decree would be reviewed during the August 2017 audit period, and the City has not yet presented evidence or documentation of compliance with the requirements of Paragraphs 351 and 352. The Monitoring Team will continue to consult with the City and DOJ to facilitate development of a written policy and procedure for issuing and tracking notifications to the Missouri Department of Revenue regarding license suspensions and reinstatements as a priority for completion by the September 2018 audit period.
10. Implementing fair trial procedures. Pursuant to Paragraph 353 of the Consent Decree, the City drafted an order on trial procedures and the Municipal Court Judge signed and issued the order on August 16, 2017. The order on trial procedures is currently available on the City’s website. To its credit, the City developed and implemented the order on trial procedures ahead of the audit schedule issued by the Monitoring Team. The Monitoring Team will consult with the City and DOJ to prioritize for completion appropriate revisions to the order by the June 2018 status hearing, ahead of the September 2018 audit period.
11. Collecting and reporting court data via electronic and online court systems. Pursuant to Paragraphs 354 and 355 of the Consent Decree, the City must further develop its electronic court records management system to facilitate tracking and accessibility of records,
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particularly those relating to reporting requirements imposed by the Consent Decree as well as state law. The Monitoring Team did not provide notice that these provisions of the Consent Decree would be reviewed during the August 2017 audit period, and the City has not yet presented evidence or documentation of compliance with the requirements of Paragraphs 354 and 355. The Monitoring Team will continue to consult with the City and DOJ to facilitate further development of the electronic court records management system as a priority for completion by the September 2018 audit period.
Pursuant to Paragraph 356, the City has reserved a page on its website for publication of the City’s “Monthly OSCA Reports” submitted to the Office of the State Court Administrator (“OSCA”). At the time of issuance of this report, the City has published on its website the June and July 2017 OSCA reports. During each audit period, the Monitoring Team will continue reviewing the City’s website to ensure publication of the most current OSCA reports. However, the Monitoring Team also encourages the City to post the reports in between audits and on a timely and ongoing basis.
12. Ensuring the independence of the Municipal Court from the City Prosecutor. With the issuance of a new policy on May 2, 2016, the City implemented procedures to ensure compliance with substantially all of the requirements of Paragraph 357. However, the policy was silent regarding the maintenance of separate court files. With the hiring of an Administrative Assistant to the City Prosecutor, the City has taken steps toward establishing and maintaining a file system separate and apart from that maintained by the court. During the August 2017 audit period, the separate file system was not fully operational. The Monitoring Team will continue auditing court sessions and random court files to ensure the independence of the City Prosecutor.
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13. Ensuring the impartiality of the Municipal Judge. Consistent with the requirement to ensure the impartiality of the Municipal Court Judge required by Paragraph 358, the City enacted revisions to Ferguson Municipal Code § 13-26 by Ordinance Number 2016-3608, § 1, adopted February 23, 2016. The Municipal Court Judge is also required, by the Circuit Court of St. Louis County, to attend an annual ethics training. During the August 2017 audit, the Monitoring Team observed court sessions, reviewed random court files, and obtained the Municipal Court Judge’s certification of completion of the requisite ethics training. The Monitoring Team was satisfied with these indications of the impartiality of the Municipal Court Judge during the August 2017 audit period, and will continue to monitor compliance with this provision of the Consent Decree during future audits.
14. Ensuring appropriate accommodations for defendants with mental illness or intellectual or developmental disabilities. Pursuant to Paragraph 359 of the Consent Decree, the City must create a policy for the implementation of appropriate mechanisms for providing defendants with mental illness or intellectual or developmental disabilities with information about their available options for diversion from the municipal court system. As a practical means of tracking compliance with this provision, the City will develop a unique code within its database to identify cases in which defendants are referred to specialty court or some other service based on their mental, intellectual, or developmental needs. Once a full policy and protocol has been written, approved, and implemented, the Monitoring Team will continue auditing court sessions, random court files, and the designated code within the court’s database to ensure compliance with Paragraph 359. The Monitoring Team did not provide notice that this provision of the Consent Decree would be reviewed during the August 2017 audit period, and the City has not yet presented evidence or documentation of compliance with the requirements
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of Paragraph 359. The Monitoring Team will continue to consult with the City and DOJ to facilitate development of a policy and protocol pursuant to Paragraph 359 as a priority for completion by the September 2018 audit period.
4. Ongoing Assessment and Improvement Pursuant to Paragraph 360 of the Consent Decree, the City must develop protocols for regularly conducting cost-feasible, data-driven, and qualitative assessments of court practices, designed to ensure that court proceedings are administered fairly and in accordance with policy as well as federal and state law. The Monitoring Team did not provide notice that these provisions of the Consent Decree would be reviewed during the August 2017 audit period, and these protocols have not yet been developed. The Monitoring Team will continue to consult with the City and DOJ to facilitate development of protocols consistent with the requirements of Paragraph 360 as a priority for completion in Year Three. G. Accountability The Parties, in consultation with the Monitoring Team, have drafted three policies with respect to FPD accountability: (1) Duty to Report Misconduct, see id. ¶ 363; (2) Duty of Candor, see id. ¶ 364; and (3) Internal Investigations, see id. ¶369. These policies were reviewed by the Monitoring Team in Year One. The Duty to Report Misconduct and Duty of Candor policies have been implemented. In March 2018, the Monitoring Team completed a second review of the Internal Investigations policy and has submitted edits and comments to the Parties. In addition, a disciplinary matrix, intended to supplement the complaint investigation policy, is currently in the early stages of development. The Parties hosted three accountability forums (on February 11, 12, and 22, 2018) in order to seek input from the community, including youth, on the Internal Investigations policy. During the remainder of Year Two, the parties will incorporate the feedback received from the community into the draft policy. Training on all
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accountability policies as well as on the complaint intake process, as required in Paragraph 322, will be completed in Year Three. During that time, the Monitoring Team will conduct an audit of internal investigations, which will establish a baseline for future audits.
H. School Resource Officer Program The Parties, in consultation with the Monitoring Team, have completed the Memorandum of Understanding (“MOU”) between FPD and the Ferguson-Florissant School District (“FFSD”). See id. ¶ 211. The FFSD has reviewed and commented on the MOU and returned it to FPD. The MOU will be finalized after the Monitoring Team has had an opportunity to review the revised version and to incorporate comments it received during its most recent trip to Ferguson. The Parties have begun developing a School Resource Officer program and operations manual in consultation with FFSD faculty and staff, the Youth Advisory Board, and other FFSD stakeholders. See id. ¶ 210. Implementation of the MOU and program and operations manual will occur during Year Three. I. Body-Worn and In-Car Cameras The Parties developed body-worn and in-car camera policies pursuant to Paragraph 231 of the Consent Decree and submitted them to the Monitoring Team for final approval. See generally Consent Decree, § XII. In addition, FPD personnel have been outfitted with body cameras. During Year Three, the Parties will prioritize implementation and training, as required by Paragraph 231. The Parties will also prioritize the development and/or implementation of protocols regarding storage and retention, with particular focus on facilitating public accessibility of body-worn and in-car camera recordings.
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III. Conclusion Significant work remains to be done before the City will be able to claim full
implementation of the Consent Decree. In particular, the Monitor is concerned that implementation may stall unless the City hires additional personnel to assist with compliance. Specifically, the Monitor recommends that the City hire the following individuals: (1) an outreach coordinator tasked with community engagement and implementation of the numerous Consent Decree provisions that require public education and collaboration with the Ferguson community; (2) an individual within the Municipal Court to assist with policy development and training; and (3) an FPD employee to support policy development, facilitate the conversion of policies into structured and organized trainings, and evaluate whether state and other external training programs comply with FPD’s implemented policies. These roles are critical to achieving compliance with the Consent Decree, and during the remaining quarter of Year Two, the City should prioritize identifying talented individuals to serve in these positions.
Based upon its interactions with the Parties during the reporting period, the Monitoring Team is encouraged by FPD’s and the Municipal Court’s efforts to implement the provisions of the Consent Decree. With personnel and appropriate systems in place for the development and revision of additional policies and training protocols, the City, through FPD and the Municipal Court, has substantially improved its capacity to comply with the Consent Decree and can continue to do so by implementing the Monitor’s recommendations. The Monitoring Team will continue to collaborate with the Parties to ensure compliance, and will continue to detail its progress through semi-annual reports to the Court.
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Date: March 30, 2018

Respectfully submitted,
/s/ Natashia Tidwell Natashia Tidwell Hogan Lovells US LLP 100 High Street 20th Floor Boston, MA 02110 617-371-1076 natashia.tidwell@hoganlovells.com

CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that the foregoing was filed electronically on March 30, 2018 with the Clerk of the Court for the United States District Court for the Eastern District of Missouri, and was served by ECF notice by operation of the Court’s electronic filing system.
/s/ Natashia Tidwell

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APPENDIX A

Case: 4:16-cv-00180-CDP Doc. #: 85-1 Filed: 03/30/18 Page: 2 of 6 PageID #: 1466
Appendices to the Independent Monitor’s Spring 2018 Report United States v. The City of Ferguson Case No. 4:16-cv-180

Implementation of Consent Decree Stated Goals: March 2018 – July 20191

Consent Decree Section

Remaining Quarter of Year Two (03/18 – 07/18)

Year Three (08/18 – 07/19)

• Finalize systems and protocol for development of training

• Continue development of schedule for delivery of training

Training

• Where applicable, develop schedule • Review and update Training Plan as

for delivery of training

required by Consent Decree

• Train FPD personnel on the Consent Decree

• Train on developed policies

Community Policing & Engagement

• Finalize community-policing policy • Begin training and implementation of

• Solicit additional community

community-policing plan

feedback on community-policing • Begin hosting small-group dialogues

policy

between FPD and community

• Develop community-engagement

members

plan

• Establish Neighborhood Associations

• Develop neighborhood mediation plan

in each of Ferguson’s apartment complexes

• Release results of Officer Attitudes • Monitoring Team to re-administer

and Perceptions Survey

survey to FPD officers

• Monitoring Team to administer

community survey

• Initiate policy development
Bias-Free Police & Court Practices

• Complete policy development • Train on developed policy • Implement developed policy • Initiate review of policies pertaining
to officer response to allegations of domestic violence and sexual assault

Voluntary Contacts, Stops,
Searches,

• Initiate policy development
• Monitoring team to audit citations, arrest reports, and field inquiry

• Complete policy development • Train on developed policy

1 The provisions outlined in this Appendix represent the six priority areas identified by the Parties (see Monitor Report, Section II) as well as other areas on which the Parties intend to make significant progress over the next year. At the start of Year Three (August-October 2018), the Monitoring Team will publish a comprehensive work plan, which will include a schedule for the implementation of all aspects of the Consent Decree.
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Appendices to the Independent Monitor’s Spring 2018 Report United States v. The City of Ferguson Case No. 4:16-cv-180

Citations, & Arrests
Use of Force
Recruitment
Municipal Court Reform
Municipal Code Reform
Accountability School Resource Officer Program

reports to establish baseline assessment for future audits

• Implement developed policy

• Complete use of force policy development
• Monitoring team to audit FPD use of force and incident reports to establish baseline for future audits

• Train on developed policies • Implement developed policies

• Train FPD officers on approved recruitment plan

• Revise recruitment plan as necessary

• Implement developed policy

• Initiate compliance audit

• Monitoring Team to conduct March • Implement changes to Municipal

2018 audit

Court operations in response to

• City and DOJ to develop policies

March 2018 audit results

• Develop comprehensive manual of all

policies, procedures, and protocols

pertaining to the Municipal Court

• Develop and implement public education campaign regarding Municipal Court operations

• Develop protocols for regular costfeasible, data-driven, qualitative assessments of court practices

• Monitoring Team to conduct September 2018 and March 2019 audits

• Initiate development of plan for the • Implement reassessment and revision

reassessment and revision of the

plan

Municipal Code

• Continue to obtain feedback from

Ferguson community, including

ongoing review of the Municipal

Code by the NPSC

• Complete disciplinary matrix to

• Implement developed policies

supplement complaint investigation • Train on developed policies

policy

• Monitoring Team to conduct audit of

• Complete policy development

internal investigations to establish

baseline for future audits

• Finalize MOU between FPD and FFSD

• Implement MOU

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Appendices to the Independent Monitor’s Spring 2018 Report United States v. The City of Ferguson Case No. 4:16-cv-180

• Develop school resource officer program operations manual
• Complete body-worn and in-car camera policy development
Body-Worn & InCar Cameras

• Train on developed policies
• Implement developed policies • Develop and/or implement policies
regarding storage, retention, and public accessibility of body-worn and in-car camera recordings

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APPENDIX B
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Good Cause Criteria Comprehensive Amnesty Program
Pursuant to Paragraph 326 of the Consent Decree in U.S. v. City of Ferguson, the City of Ferguson will eliminate all warrants and decline prosecution in cases initiated prior to January 1, 2014 unless, in the judgment of the City Prosecutor, good cause exists to continue prosecution. For purposes of this Program, the City will continue prosecution of any case initiated before January 1, 2014, if one or more of the following criteria are met:
1. The offense originally charged involved assaultive behavior or reckless endangerment to others, to include Driving While Intoxicated; or
2. The offense originally charged involves an identified victim who is available to assist in further prosecution of the pre-2014 case; or
3. The offense originally charged is a Driving While License Suspended or Driving While License Revoked, AND
a. The original Driving while License Suspended charge was issued because of something other than failing to appear or pay pursuant to RSMo 302.341.1; AND
b. The defendant is unable to show that either his license was reinstated, or that he is no longer driving.
If the first and any subsequent Driving while License Suspended or Driving While License Revoked charges were issued because the defendant’s license was suspended based on failing to appear or pay pursuant to RSMo 302.341.1, the prosecutor will dismiss the charge(s).
4. The defendant has been convicted, either through plea or verdict, of an additional offense since 2014 that involves assaultive behavior, reckless endangerment to others, to include Driving While Intoxicated; or
5. The City Prosecutor reasonably believes that, in the interests of justice and public safety, the case should proceed. For cases left open under this provision, the City Prosecutor shall articulate the factors leading to the decision to continue prosecution in a written statement of findings.
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v.
THE CITY OF FERGUSON, Defendant.

)
) ) Case No. 4:16-cv-180
) ) Hon. Catherine D. Perry
)
)
)
)

INDEPENDENT MONITOR’S FALL 2018 SEMIANNUAL REPORT

I. INTRODUCTION

Pursuant to paragraph 438 of the Consent Decree entered into between the United States

Department of Justice (“DOJ”) and the City of Ferguson, Missouri (the “City”) (together, the

“Parties”), the Independent Monitor (the “Monitor” or the “Monitoring Team”) submits this Fall

2018 Semiannual Report, which covers the reporting period of April 1, 2018 through September 30, 2018.1

Between April and September 2018, the City made considerable progress in furtherance

of implementation of the Consent Decree. Notably, the City began policy development in new

subject areas, including voluntary contacts, stops, searches, citations, and arrests; commenced

the development and scheduling of roll call training on developed policies, including in the areas

of use of force and body-worn and in-car cameras; identified key information necessary for the

Monitor to initiate baseline audits in various subject areas; and continued to make significant

progress with respect to implementation of Consent Decree provisions pertaining to reform of

the Ferguson Municipal Court (“Municipal Court”). Key tasks which have not yet been

1 In accordance with Paragraph 439 of the Consent Decree, this report has been agreed to by the Parties. 1

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completed, but which should be prioritized over the course of the next reporting period, include, among other things, policy development in new subject areas such as bias-free policing, the implementation of all developed policies, and increased progress in the subject areas of community engagement, training and supervision, and data collection.2 The Monitoring Team recognizes that the City and the DOJ have put much effort into achieving the goals of the Consent Decree and working toward meaningful outcomes in Ferguson. The working relationships and processes followed by the City, DOJ, and the Monitoring Team, and the input provided by community stakeholders, have consistently reflected a spirit of cooperation, which the Monitoring Team expects will continue as all parties work together to facilitate substantial implementation of the Consent Decree by Year Five.3
A. The Monitoring Process Through the work of its subject matter experts, the Monitoring Team will conduct reviews and audits to determine whether the City, Ferguson Police Department (“FPD”), and the Municipal Court are in compliance with the Consent Decree, and will provide technical assistance as needed to guide the City through the implementation process. Specifically, the Monitoring Team will ensure timely and complete implementation of the Consent Decree through the following three phases: (1) policy revision and review; (2) training and implementation; and (3) auditing and compliance assessment.
2 Throughout this report, the Monitor refers to both the “reporting period” and the “next reporting period.” For purposes of this status report, the “reporting period” refers to April 1, 2018 through September 30, 2018, while the “next reporting period” encompasses October 1, 2018 through March 30, 2019. 3 Throughout this report, the Monitor refers to “Year One,” “Year Two,” “Year Three,” etc. to identify past achievements and to outline future goals. The monitorship officially began when the former Monitor was appointed by the Court on July 22, 2016. Accordingly, Year One ran from August 2016 through July 2017, Year Two began in August 2017 and ended in July 2018, Year Three commenced in August 2018 and will end in July 2019, Year Four will begin in August 2019 and end in July 2020, and Year Five will commence in August 2020.
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1. Policy Revision and Review The Consent Decree requires FPD and the Municipal Court to incorporate its provisions into specific policies and procedures as appropriate. See Consent Decree, ¶ 42. The Monitoring Team is pleased that the Parties continue to work collaboratively in executing the policy revision and review protocol set forth in the Spring 2018 Status Report. See Dkt. No. 85 at 5. Throughout the reporting period, the Parties and Monitoring Team continued to seek feedback from the community regarding this policy revision and review protocol. During this process, and at community meetings and town hall events attended by the Monitoring Team, some community members expressed concern that the current protocol fails to provide an adequate opportunity for the community to comment on developed policies prior to implementation. Currently, the policy revision and review protocol incorporates the “solicitation of community input” as a critical step in the development of policies. Indeed, as has been the case with numerous policies developed thus far, the Parties have solicited important feedback from the community through multiple policy forums which were open to the public and held prior to the finalization of a policy in a given subject area. The community, however, has expressed a desire to (1) review how the input provided at community forums or other events has or has not been incorporated into finalized policies; and (2) comment on finalized policies prior to implementation. As a direct result of these expressed concerns, the Parties, together with the Monitoring Team, discussed ways in which the protocol could be modified to allow for additional community input prior to policy rollout, and agreed to amend the policy development protocol to include a comment period for both Ferguson Police Officers and members of the community, generally, once a policy has been approved by the Monitoring Team. Accordingly,
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as of October 1, 2018, the policy development protocol has been modified to include a 30-Day
Comment Period as described below:4
i. Kick-off/Announcement of Policy Area: FPD notifies DOJ and the Monitor of its intent to begin drafting or revising policies in an identified subject area;
ii. Technical Assistance: The appropriate SME on the Monitoring Team provides FPD and DOJ with technical assistance in the form of model policies and/or initial guidance as to best practices in the identified subject area;
iii. Gap Analysis: FPD and DOJ conduct an assessment or gap analysis of FPD’s current state of affairs (i.e., ascertain how FPD’s existing policies, practices, and systems differ from the Consent Decree’s requirements and best practices);
iv. Solicitation of Community Input: Several provisions of the Consent Decree require community involvement in the implementation of specific policies, including those designed to improve police/community relations. The Parties are committed to soliciting community feedback on other policies as well, even where not explicitly required by the Consent Decree. While the Parties continue to evaluate the best means of involving community stakeholders in the policy development process, the Parties have found that policy forums are an effective means of inviting and obtaining community input.
v. Policy Revision: FPD and DOJ revise policies, practices, and systems in the target subject area to the extent required under the gap analysis;
vi. Return to Monitor/SME: Upon completion of a draft policy, the Parties submit the policy to the Monitor and/or appropriate SME for review. The SME will review the policy and either provide final approval or arrange for a conference call to discuss additional revisions; and
vii. 30-Day Comment Period: Once the Monitoring Team has approved a draft policy, the City will email the policy to FPD officers from varying ranks and units. Officers will have a meaningful opportunity to review and comment on the new or revised policy or procedure during a 30-day period. At the same time, FPD will post the policy to the FPD website for review by the community. Community members will also have 30 days to provide comment on the draft policy or procedure. At the close of the 30-day period, the Parties will determine whether any modifications to the draft policy are appropriate. If modifications are made, the revised policy shall be submitted to the Monitor for review and final approval. After the Monitor has approved the final policy, officers will be provided roll call training and the policy will be implemented and published.
4 The steps outlined in the process are not necessarily intended to be implemented sequentially. Rather, the Parties and the Monitoring Team will determine the appropriate methodology on a case-by-case basis.
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During the next reporting period, as FPD continues to finalize and implement new and revised policies, it should also prioritize compliance with paragraph 46 of the Consent Decree, which requires the City to maintain a complete, up-to-date manual of all FPD policies and procedures. As part of this process, and to facilitate timely implementation of new and revised policies, FPD should also continue to renumber its existing and revised policies to be consistent with the overall organizational system for policies that FPD is developing. During the reporting period, FPD completed the process of renumbering its use of force general orders, which will be implemented during the next reporting period.
2. Training and Implementation During the reporting period, FPD continued to build its capacity to comply with the training requirements of the Consent Decree. Indeed, Assistant Chief McCall and Lieutenant Dilworth have been instrumental in developing roll call training curricula and materials for policies relating to use of force and body-worn and in-car cameras. In addition, FPD successfully completed training of its personnel on the requirements, goals, and expectations of the Consent Decree. The Monitoring Team was able to attend one of the training sessions and is pleased to report that it was informative, well-received, and compliant with Paragraph 303 of the Consent Decree. During the next reporting period, FPD, in conjunction with the Training Committee, should prioritize the development of a training plan, including a plan for the rollout of roll call, in-service, and supervisor trainings, as well as a plan for ensuring that FPD’s systems are sufficient for organizing and tracking training data. The development of an adequate training plan will require thoughtful consideration of the various methods required for training delivery as well as a careful examination of Missouri state certification requirements to determine
5

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whether they harmonize with the Consent Decree’s requirements for officer training. For this reason, the Monitoring Team repeats its recommendation—first articulated in the Spring 2018 Status Report—that the City hire a Training Coordinator, preferably with expertise in training development and delivery, to assist in the development of a robust training program.
3. Auditing and Assessing Compliance With the exception of provisions related to court reform and overhaul of the Municipal Code, much of the implementation phase of the Consent Decree remains to be completed. Using the audit methodology it initially developed during Year Two, the Monitoring Team conducted its second Municipal Court audit in March of 2018, the details of which are described in Section II(F) below. The remaining subject areas did not enter the implementation stage during the reporting period and could not be audited. As outlined below, however, the Monitoring Team expects that implementation will occur in the areas of use of force, stops, searches, and arrests, accountability, and community engagement during the next reporting period. Furthermore, in anticipation of forthcoming policy rollouts, the Monitoring Team has taken steps to develop initial measures of compliance review in these subject areas. Descriptions of these measures are provided in the corresponding subject matter sections below. With respect to future audits, the Monitoring Team will commence an audit designed to assess the implementation of each new policy approximately six months following the rollout of that policy. The Monitoring Team will notify the Parties thirty days in advance of commencing any audit and will provide a proposed methodology in accordance with Paragraph 426 of the Consent Decree. At that time, the Monitoring Team will also submit any requests for documents and materials needed to assess compliance. See Consent Decree, ¶ 426.
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II. DETAILED STATUS UPDATE Because the Consent Decree contains numerous objectives and requirements that the
City, FPD, and Municipal Court have agreed to implement, the Parties have prioritized specific provisions of the Consent Decree. For FPD, the following six subject matter areas are the priorities: (1) community policing and engagement; (2) bias-free police and court practices; (3) stops, searches, citations, and arrests; (4) use of force; (5) recruitment; and (6) accountability (including the Civilian Review Board (the “CRB”)). With the exception of bias-free police and court practices, policy development and rollout in each of the six priority areas should be completed by the end of Year Three. In addition to these priority areas, the City, with support from the DOJ and Monitoring Team, has continued working toward implementation of the remaining requirements of the Consent Decree, with particular emphasis on implementation of provisions regarding municipal court reform, the school resource officer program, and bodyworn and in-car camera policies. This report outlines the efforts of the Parties and Monitoring Team in these areas, and details progress toward substantial compliance with the Consent Decree. A table summarizing the achievements of the reporting period (April 1, 2018 through September 30, 2018) as well as the Monitoring Team’s stated goals for the next reporting period (October 1, 2018 through March 30, 2019) is attached as Appendix A.
A. Community Policing and Engagement Although progress with respect to Community Policing and Engagement has been steady, it has been slow, with very few community focused provisions having been implemented during Years 1 and 2. Because community-oriented policies are critical to achieving substantial compliance, the Monitoring Team renews its recommendation, initially outlined in the Spring 2018 Status Report, that the City hire a community engagement and/or outreach coordinator
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who is responsible for overseeing implementation of the community engagement provisions of the Consent Decree. Increased focus by the City on community engagement will serve not only to address concerns expressed at town hall meetings with the Monitor and during the public comment portion of the June 2018 status hearing, but will help the City to achieve one of the Consent Decree’s broader goals of increasing transparency and trust within the community.
During the reporting period, the Parties provided the Neighborhood Policing Steering Committee (“NPSC”) with a revised community policing policy. The NPSC re-reviewed the policy to determine whether it was satisfied with how its initial comments had been incorporated into the draft policy. The Monitoring Team reviewed and approved the finalized community policing policy, and the DOJ attended the NPSC’s October 2018 meeting in order to explain how its comments were and/or were not ultimately incorporated into the finalized policy. The Parties will solicit comments from officers and the community during the newly-implemented 30-Day Comment Period, which will run from November through December 2018. Once policy development is complete, the City should prioritize the roll out of both roll call and in-service training on the community policing policy during the next reporting period. By the end of the next reporting period, the City, in conjunction with the DOJ, should also have completed policy development with respect to a separate, more detailed community engagement plan and separate crime prevention plan, if necessary.
In addition, the Monitoring Team expects the City to prioritize community engagement and to make significant progress with respect to implementing community-oriented provisions of the Consent Decree over the course of the next six months. Specifically, the City should focus on Paragraphs 19, 23, 25, and 33 of the Consent Decree by developing community-focused plans for: (1) launching a neighborhood mediation program; (2) participating in group structured
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dialogues with community members; (3) establishing Neighborhood Associations in each of Ferguson’s apartment complexes; and (4) developing a policy for responding to NPSC recommendations. To assist FPD officers with achieving the community policing and engagement goals set forth in the Consent Decree, the City must also work, during the next reporting period, to develop a shift schedule and deployment plan that enables close and effective supervision and supports a community-oriented approach to policing.
With respect to its community engagement, the Monitoring Team hosted community events, with an opportunity to ask the Monitor direct questions, at Ferguson City Hall on June 25 and September 19, 2018. Since launching the fergusonmonitor@hoganlovells.com email address and the www.fergusonmonitor.com website during the reporting period, the Monitoring Team has received a steady stream of communications from the community as well as frequent additions to its listserv. In addition, Steven Parish, the Monitoring Team’s community engagement consultant, engaged in community outreach by attending neighborhood association meetings, consulting with local organizations, such as the Ferguson Collaborative and Urban Strategies, and participating in Ferguson’s Unity Weekend. The Monitoring Team will continue its efforts to increase outreach to the Ferguson Community by hosting community events on at least a quarterly basis. In addition, the Monitoring Team will make efforts to broaden the reach of its community interactions by not only utilizing its listserv and website to communicate Monitor announcements to the community, but also by arranging for announcements, status reports, and other key documents to be distributed in Ferguson’s public areas, such as City Hall and the public library.
Finally, the Monitoring Team requested and received a list of all FPD community engagement events planned between October 1, 2018 and January 1, 2019. The Monitoring
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Team has commenced development of a community-engagement assessment form and will use the information provided by the City to develop an initial audit schedule and methodology to measure the City’s community engagement efforts.
1. The Neighborhood Policing Steering Committee During the reporting period, the NPSC played a critical role in the development of FPD’s community policing policy. In the next reporting period, the NPSC will work with FPD to similarly support and provide feedback to the Parties during the development of the communityengagement plan as well as policies aimed toward improving FPD’s ability to receive, consider, respond to, and act upon NPSC recommendations in a timely and transparent manner. See Consent Decree ¶ 23.
2. Civilian Review Board The Civilian Review Board (“CRB”) continues to develop internal policies/manuals for self-governance and to formulate a program for the promotion of public awareness and education as required by Paragraph 405(d),(g). During the next reporting period, the CRB will work with FPD as well as the NPSC to provide feedback and support during the development of the community-engagement plan. In addition, pursuant to paragraph 405(d) of the Consent Decree, within 60 days of implementation of the City’s Mediation Program, the CRB shall develop and recommend a program designed to promote awareness regarding the options available for filing misconduct complaints. Currently, the CRB meets on a monthly basis. The Lead Monitor attended a CRB meeting during the reporting period and intends to attend another CRB meeting during the upcoming reporting period in order to address Consent Decree questions that are specifically related to the CRB.
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3. Surveys Paragraphs 429 and 430 of the Consent Decree require that the Monitoring Team conduct annual surveys of members of the Ferguson community, including Ferguson residents, law enforcement personnel, and detained arrestees. In particular, the surveys are aimed at gathering information about (1) the community’s experiences with and perceptions of FPD, public safety, and the municipal court; and (2) police officers’ attitudes regarding their jobs and the Ferguson community. Although the Officer Attitudes and Perceptions Survey was administered to FPD officers in the late summer of 2017, the results of that survey have not yet been published to FPD officers. The Monitoring Team will prioritize distribution of these survey results during the next reporting period. In addition, the Monitoring Team is pleased to announce that the City of Ferguson has contracted with the Police Foundation to deliver officer and community surveys over the course of Year Three. In the next reporting period, the Monitoring Team, along with members of the Police Foundation, will meet with community members in Ferguson to discuss strategies for successful administration of a community survey. The Monitoring Team will work with the Police Foundation to ensure that such surveys are administered as soon as it is feasible to do so. B. Bias-Free Police and Court Practices The Parties have not yet commenced policy development in the area of bias-free policing and court practices. During the next reporting period, the City should focus on the development of such policies with an understanding that drafts should be submitted to the Monitoring Team prior to the close of Year Three. To achieve this, the City must prioritize the development of policies with respect to bias-free policing and court practices, including policies that address training for interacting with individuals who have a limited ability to speak, read, write, or
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understand English, that pertain to officer response to allegations of domestic violence and sexual assault, and that generally address timely and meaningful access to police and court services for all.
C. Voluntary Contacts, Stops, Searches, Citations, and Arrests During the reporting period, the Parties began policy development in the area of voluntary contacts, stops, searches, citations, and arrests and held two policy forums in June of 2018. The Parties made substantial progress in the areas of investigatory stops and detentions and field investigation reports. The Parties will work during the next reporting period to incorporate community feedback obtained during the policy forums into the draft policies on stops, searches, citations, and arrests, to complete development of these policies, and to begin roll call training in these specific areas. The Parties should also use the next six months to continue the policy review and revision process with respect to related policies, including warrant applications, summons and police report procedures, and prisoner conveyance, so that policy development in these areas may be completed by the end of Year Three. Over the course of Year Three and into Year Four, the Monitoring Team will work with the Parties to ensure that the spirit and goals of the stop, search, and arrest provisions of the Consent Decree are, where applicable, incorporated into other policies which more directly relate to other policy areas, but which implicate the Fourth Amendment. In order to conduct a baseline audit in the area of stops, searches, arrests, and citations, the Monitoring Team requested and received from the City the total number of arrest reports and field inquiry reports generated by the FPD between January 1, 2017 and June 30, 2018. Due to the large number of arrest reports, the Monitor further requested, and received, a breakdown of each arrest by offense. Because there were too few field inquiry reports from which to draw a
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representative sample, the Monitoring Team continues to assess the best measures for capturing a more accurate representation of FPD’s “Terry stops” between January 1, 2017 and June 2018. Over the course of the next reporting period, the Monitoring Team will use the information provided by the City to develop its audit methodology and to assess baseline measures in these areas.
D. Use Of Force During the reporting period, the Parties completed policy development, and received final approval from the Monitoring Team, with respect to an umbrella policy pertaining to the use of force and a suite of policies that correspond to various instrumentalities of force, as well as policies concerning the reporting and investigation of uses of force. During the next reporting period, the FPD has committed to posting these draft use of force general orders to its website and making them available to officers and the community in accordance with the 30Day Comment Period outlined in Section A(1)(viii) above. Following the comment period, and by the end of the next reporting period, the City should complete its roll out of the use of force general orders and develop a comprehensive plan for in-service training in these areas. The Monitoring Team requested and received from the City the total number of use of force reports generated by the FPD between January 1, 2017 and June 30, 2018. During the next reporting period, the Monitoring Team will use these reports to develop a methodology and to conduct an audit of FPD use of force reports in order to establish a baseline for future audits. E. Recruitment The Parties have drafted a Recruitment Plan for attracting and retaining a high-quality and diverse work force as required by Paragraphs 282 and 283 of the Consent Decree. Final approval of the plan is pending as the City has not yet developed a method for complying with
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Paragraph 283(a), which requires the City to offer salaries that will place FPD among the most competitive of similarly sized agencies in St. Louis County. While the Monitoring Team anticipated completion of the Recruitment Plan in this reporting period, the City was unable to do so and has prioritized finalization during the next reporting period. Once completed, the provisions of the Recruitment Plan must be explained to rank and file members of FPD, with documentation of this training provided to the Monitoring Team. Upon implementation, the Monitoring Team will review job applications and background investigation files to assess compliance.
F. Municipal Court Reform Reform of the Ferguson Municipal Court continued to progress under the Consent Decree during the reporting period. Pursuant to Paragraph 323 of the Consent Decree, the Monitoring Team has engaged with the DOJ and the City to reform the Municipal Court to ensure that the Municipal Code is enforced for the purpose of protecting public safety and to enable the fair and impartial resolution of municipal charges. With assistance from the Court staff, including the Court Clerk, the Municipal Court Judge, and the City Attorney, the City of Ferguson has worked cooperatively with DOJ and the Monitoring Team to develop, revise, and implement policies and procedures that effectively address the findings of DOJ’s investigation and related provisions of the Consent Decree. The policies that were prioritized for the third and fourth quarters of Year Two have all been drafted, and either (1) have been reviewed, approved and implemented by the City, or (2) are currently under review by the Monitoring Team, DOJ, or the City. As of the September 2018 status hearing, municipal court policy development was ahead of schedule.
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1. Policy Development
Pursuant to Paragraph 328 of the Consent Decree, and in conjunction with DOJ, the City
has begun developing and implementing the ordinances and policies necessary to ensure the fair
administration of justice as well as the constitutionality and legality of Municipal Court
procedures. The goal is for the City to develop a comprehensive manual of all policies,
procedures, and protocols related to the Municipal Court.
To date, the City has made outstanding progress on developing and implementing these
policies, in coordination with DOJ and the Monitoring Team. Below is a summary of the
Municipal Court policies that have been developed since the Spring 2018 Monitor’s Report:
a) Policy to Ensure Adequate Notice to Individuals Charged with a Violation of the Ferguson Municipal Code.
• Pursuant to Paragraph 334, the City has drafted a plan for performing monthly audits of citations, arrest notification forms, and other notices of violations used by officers to ensure that such documents are completed properly and provide the recipient with thorough and accurate information.
• The plan is now under review and revision by DOJ to ensure alignment between FPD, the City Prosecutor, and the Municipal Court. See id. ¶ 334.
b) Policy to Eliminate Unnecessary Barriers to Resolving Cases.
• The City has drafted and received approval of a Continuance Policy pursuant to Paragraph 339. As of the September status conference, the new continuance policy has been posted to the website.
• To enable effective auditing of compliance with the continuance request process required by Paragraph 339(b), the City must also develop a method of recording all requests for a continuance and whether those requests were granted or denied.
c) Policy to Conduct Ability-to-Pay Determinations in Conjunction with Imposing Fines and Fees.
• In conjunction with DOJ, the City has developed a policy to ensure that defendants are provided with appropriate ability-to-pay determinations consistent with subdivisions (a) thorough (e) of Paragraph 340 of the Consent 15

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Decree. The policy was reviewed and approved by DOJ and the Monitoring Team by June 2018, ahead of the September 2018 target completion date.
d) Policy to Ensure Appropriate Alternative Sentences, Like Community Service, and the Availability of Payment Plan Options.
• The City has developed a comprehensive community service program and a policy designed to ensure that defendants are provided with options for courtmanaged plans with reasonable periodic payments starting with an ability-topay determination or uniform procedures for seeking modifications to periodic payment plans pursuant to Paragraph 345.
• This policy was developed in conjunction with DOJ and approved by the Monitoring Team by June 2018, ahead of the September 2018 target date.
e) Policy to Implement Requirements for Municipal Arrest Warrants to Avoid Using Them as a Means of Collecting Civil Court Debt.
• In conjunction with DOJ, the City has developed a written policy, procedure, and protocol for compliance with the Show Cause process outlined in subsections (a) through (d) of Paragraph 348.
• This policy was reviewed and approved by DOJ and the Monitoring Team by June 2018, ahead of the September 2018 target date.
f) Policy to Implement Fair Trial Procedures.
• Pursuant to Paragraph 353 of the Consent Decree, the City drafted an order on trial procedures and the Municipal Court Judge signed and issued the order on August 16, 2017. The order on trial procedures is currently available on the City’s website.
• In conjunction with DOJ, the City has also drafted a Trial Procedures Policy, which is currently under review by the Monitoring Team.
2. Audit Procedures & Compliance
Pursuant to Paragraph 424 and consistent with its responsibility to ensure compliance
with the Consent Decree, the Monitoring Team established a biannual audit schedule of the
specific provisions addressing Municipal Court reform. The second audit was conducted in
March of 2018. In preparation for the March 2018 audit, the Monitoring Team sent a notice to
the City outlining the twenty-three (23) provisions of the Consent Decree designated for 16

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auditing during the reporting period. As with previous audits, the audit procedures were divided
into six categories:
i. Document Review: The Monitoring Team requested to review policies, procedures, and other documents such as the City budget during the audit;
ii. City Ordinance Review: The Monitoring Team reviewed the ordinances that the City was required to enact, repeal, or revise in compliance with the Consent Decree. Most, if not all, required changes to City ordinances were completed before the effective date of the Consent Decree, so this and future audits involve confirming that no subsequent changes have been made to these ordinances;
iii. Database Review: The Monitoring Team requested access to or reports from the court’s computerized database, ITI, during the audit to confirm the existence, or non-existence of certain cases, the status of certain cases, and the status fines and fees paid. At the time of issuance of this report, the Monitoring Team does not have remote access to ITI and currently accomplishes confirmation of information available in the database through onsite visits or specific requests for reports from the Court Staff; requested reports have been readily and satisfactorily provided;
iv. Website Review: The Monitoring Team reviewed the City’s website and the specific pages designated for the Ferguson Municipal Court, as well as the website of the City’s online payment vendor, to audit compliance with the Consent Decree provisions requiring the City to maintain a website and to make certain information readily accessible;
v. Municipal Court Case File Review: The Monitoring Team requested onsite review of case files to audit compliance with the Consent Decree provisions related to the Comprehensive Amnesty Program and the reduction or dismissal of cases in which defendants were subject to fines and fees related to Failure to Appear charges. The Monitoring Team notified the Court Staff prior to the court visit to have cases made available for review; and
vi. Observation of Municipal Court Operations: The Monitoring Team attended a court session to observe the operations of the Ferguson Municipal Court, pursuant to several provisions of the Consent Decree, including required notifications to defendants, ability-to-pay determinations, options related to alternative sentences (e.g., community service in lieu of payment of fines) and payment plans, and the conduct of the Municipal Court Judge and City Prosecutor to ensure their independence and impartiality.
Each provision related to Municipal Court Reform has been evaluated and provided with a
compliance grade for the March 2018 audit period based on the following scale:
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i. Substantial Compliance: Indicating that the City has satisfied the written requirements of the Consent Decree provision and fulfilled the purpose of the provision by doing so;
ii. Partial Compliance: Indicating that the City has satisfied some but not all requirements of the Consent Decree provision;
iii. Initial Development: Indicating that, during the audit period, the City has taken at least one measure in the process of fulfilling the requirements of the Consent Decree, but has not yet completed its requirements;
iv. Out of Compliance: Indicating that the City received notice that the Consent Decree provision would be assessed during the audit period, but has not yet fulfilled the requirements of the provision and has not taken meaningful steps to do so; and
v. Not Assessed: Indicating that the Monitoring Team did not give the City notice that this provision of the Consent Decree would be assessed this reporting period. For Consent Decree provisions that the City addressed ahead of schedule, without notice of assessment from the Monitoring Team, the City has received one of the compliance grades outlined above. 3. Summary of Audit Findings
The findings of the audit are outlined below in Table 1: Ferguson Municipal Court Reform at a Glance, with reference to specific provisions of the Consent Decree as applicable.5 The specific bases for these ratings are explained in further detail below:
5 Table 1 captures provisions of the Consent Decree that can be audited, reviewed, or quantified on a biannual basis.
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Table 1: Ferguson Municipal Court Reform at a Glance

Consent Decree Provision
¶ 324: Ensure cap on revenue from municipal fines and fees
¶ 325: Remove municipal court from oversight of City Finance Director

Audit Procedures
Document Review: City budget and financial records
Observation of Municipal Court Operations and review of city budget

Status Substantial Compliance Substantial Compliance

¶ 326: Implement Comprehensive Amnesty Program for cases without a disposition initiated before January 1, 2014, and repeal all or parts of Ferguson Municipal Code §13-60, §13-63, §1370(2) and (3), and §44-50

City Ordinance Review; Database Review of pending and closed cases; Municipal Court Case File Review of pending and closed cases; Observation of Municipal Court Operations

¶ 326(a) – Partial Compliance ¶ 326(b) – Partial Compliance ¶ 326(c) – Partial Compliance ¶ 326(d) – Partial Compliance

¶ 327: Implement Comprehensive Amnesty Program, eliminate charges, and cancel warrants for cases without a disposition initiated before January 1, 2014
¶ 328: Develop and implement policies to ensure fair administration of justice
¶ 329: Increase transparency of court operations
¶ 331: Make information available regarding cost-free legal assistance
¶ 333: Ensure adequate notice to individuals charged with a violation
¶ 335: Maintain up-to-date contact information for individuals with cases pending in the Court
¶ 336: Revise online payment system to allow late payments and payment plan installations
¶ 341: Maintain public list of preset fines, accounting for punitive nature, local income levels, and regional averages
¶ 342: No additional fines and fees for Failure to Appear or violations of repealed code provisions §13-60, §1363, §13-70(2), or §13-70(3).

Database Review of pending and closed cases; Municipal Court Case File Review of pending and closed cases; Observation of Municipal Court Operations
City Ordinance Review; Website Review; Observation of Municipal Court Operations
Website Review
Website Review; Observation of Municipal Court Operations Document Review of Citation and Supplemental Form; Website Review Document Review of “Updated Contact Information” form; Observation of Municipal Court Operations
Website Review
Document Review of current fines and fees schedule; Website Review; Observation of Municipal Court Operations
City Ordinance Review; Database Review of pending and closed cases; Municipal Court Case File Review of pending and closed cases; Observation of Municipal Court Operations

Partial Compliance
Partial Compliance Partial Compliance Out of Compliance Partial Compliance Partial Compliance Partial Compliance Substantial Compliance6
Substantial Compliance

6 In light of an agreed amendment to Paragraph 341, the City is currently in Substantial Compliance with this provision. The amendment took effect after completion of the March 2018 audit but prior to issuance of this report.
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¶ 344: Implement community service as Document Review of New Policy;

a sentence alternative

Observation of Municipal Court Operations

¶ 345: Provide options for courtmanaged payment plans

Document Review of New Policy; Observation of Municipal Court Operations

¶ 357: Ensure independence of City Prosecutor

Ordinance Review; Observation of Municipal Court Operations

¶ 358: Ensure impartiality of municipal Ordinance Review; Observation of

court judge

Municipal Court Operations

¶ 360: Develop protocols for conducting cost-feasible, data-driven, and qualitative assessments of court practices

Document Review; Website Review

¶ 413: All policies on website

Website Review

Partial Compliance Partial Compliance Partial Compliance Substantial Compliance
Not Assessed
Partial Compliance

4. Detailed Audit Findings – Summary Descriptions
a) Ensuring that Municipal Code Enforcement is Driven by Public Safety
• Pursuant to Paragraph 324 of the Consent Decree, the City achieved substantial compliance with the 12.5 percent cap on revenue from municipal fines and fees, consistent with the mandate of Mo. Rev. Stat. § 479.350, and remained in substantial compliance with this provision during the March 2018 audit period.
b) Comprehensive Amnesty Program
• Pursuant to Paragraph 326 of the Consent Decree, the City has implemented a Comprehensive Amnesty Program which includes a process for declining to prosecute all open cases without a disposition that were initiated prior to January 1, 2014, unless the City Prosecutor finds good cause to continue the prosecution. In Year Two, the Parties collaborated in the development of the “good cause criteria,” which are provided herewith as Appendix B. As of the March 2018 audit, the City was in partial compliance with Paragraph 327 of the Consent Decree, requiring implementation of the Comprehensive Amnesty Program; the elimination of all relevant charges, fines, and fees pending from cases initiated prior to January 1, 2014; and the cancellation of any municipal arrest warrants or collection of fines and fees associated with these cases. The finding of partial compliance largely reflects the fact that the City’s review was ongoing but not complete at the time of the audit.
• As of the March 2018 audit, the City had reviewed 6,085 cases without a disposition with 1,847 cases that still needed to be reviewed. At that time, the City Prosecutor had decided to continue prosecution of approximately 320 cases, based on the agreed-upon Good Cause Criteria, as outlined in Appendix B.

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• During the March 2018 audit, the Monitoring Team reviewed 32 cases provided as a sample of the approximately 320 cases kept open under the good cause criteria as part of the Comprehensive Amnesty Program (as of February 28, 2018). Below is a summary of the 32 cases:

Cases 26 Cases - Driving While Suspended or Revoked under 44.81 1 Case - Indecent Exposure 2 Cases - Trespassing First 2 Cases - Stealing under $500 1 Case – DWI 32 Total Cases

Good Cause Criteria 3 2 2 2 1

• The five cases kept open under the second good cause criteria (the offense originally charged involves an identified victim who is available to assist in further prosecution of the pre-2014 case) raise a concern. None of the documentation within these files demonstrates any effort by the City to confirm that the alleged victim is available to assist in further prosecution of the case. For cases involving alleged conduct such as trespassing or stealing items valued under $500, the alleged victims are largely businesses, not individual persons.
• As of September 2018, the City has completed review of all 7,932 pre-2014 cases, and has continued prosecution on 1,744 cases.
• An audit of the good cause case review was conducted as part of the September 2018 municipal court audit. In anticipation of the audit, the Monitoring Team requested and received a chart outlining which of the four provisions of the good cause criteria the City Prosecutor relied upon to continue prosecution of each of the 1,744 cases. The Monitoring Team will report the results of this audit in the Spring 2019 status report.
• Pursuant to Paragraph 326(b) of the Consent Decree, and through an order issued by the Municipal Court Judge, the City has eliminated all pending charges, fines, and fees related to Failure to Appear Violations without requiring defendants to make bond payments, appear in court, or take any other action. This was confirmed in ITI during the March 2018 audit.
• Pursuant to Paragraph 326(c) of the Consent Decree, the City has repealed all or parts of Ferguson Municipal Code § 13-60, § 13-63, § 13-70(2) and (3), and § 44-50, and has eliminated all pending fines and fees imposed pursuant to the 21

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applicable provisions of these sections. During the March 2018 audit, the Monitoring Team confirmed that there were no active or pending cases in ITI associated with these provisions.
• Pursuant to Paragraph 326(d) of the Consent Decree, the City has taken measures to ensure that, where a defendant has made total payments that exceed the amount of the initial fines and fees imposed for a municipal ordinance violation, including payments for associated Failure to Appear Violations, the City has recommended that the fines be stayed and the case be closed without requiring defendants to make a bond payment, appear in court, or take any other action. Where payments have been made that do not total or exceed the original fine amount, the City has recommended lowering the fine and fee debts owed down to the amount of the initial fines and fees imposed, minus any payment already made by the defendant. As part of the March 2018 audit, the Monitoring Team reviewed a random sample of ten percent of the 238 cases where FTA fines had been waived. The FTA fines waived totaled $61,123 for all 238 cases.
c) Increasing Transparency of Court Operations
• As part of the March 2018 audit, the Monitoring Team confirmed that the Municipal Court website needs further updates, including links to the new and approved court policies, such as the Continuance Policy (as of the September 2018 audit period, the new Continuance Policy was available on the website). Pursuant to Paragraph 330 of the Consent Decree, the City must also identify other ways to increase the transparency of court operations, besides posting materials on its website.
d) Ensuring Adequate Notice to Individuals Charged with a Violation of the Ferguson Municipal Code
• To ensure individuals charged with violations receive adequate and reliable information about their rights, the City revised the citation document and created a citation supplemental form to provide a clear statement notifying the recipient of the right to challenge the charge in court and instructions regarding how to do so, see Consent Decree at ¶ 333(d); to provide a clear statement that the recipient is entitled to have the amount of the imposed fine proportioned to the recipient’s ability to pay, see id. ¶ 333(h); to provide the range of possible penalties for failing to meet court requirements, see id. ¶ 333(i); and to provide clear instructions regarding how to acquire information regarding a pending charge, including how to contact a clerk of the Municipal Court by phone or in person, see id. ¶ 333(j). These changes were made and approved by DOJ and the Monitoring Team as part of the March 2018 audit. The Monitoring Team checked the website and confirmed that the information referenced on the citation supplemental form is in fact available on the website. Additional audit methodologies are being developed to assess whether the citation supplemental form is consistently provided to individuals being charged with a violation.
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• During the March 2018 audit period, the Monitoring Team observed Night Court proceedings and confirmed that Court Staff are requesting updated contact information by providing each defendant who appears in court with an “Updated Contact Information” Form, pursuant to Paragraph 335. Completion of the form continues to be optional, however, and there is not consistent documentation of a defendant’s affirmative refusal to complete the form.
e) Revising the Online Payment System to Make All Municipal Court Payments Available Online Except Where Prohibited By Law
• Pursuant to Paragraph 336 of the Consent Decree, the City has engaged an outside vendor called The Payment Group (“TPG”) to manage its online payment system. During the March 2018 audit, the Monitoring Team confirmed that the TPG website had not yet been revised to reflect the outstanding concerns with language about partial payments identified during the prior audit.
f) Conducting Ability-to-Pay Determinations in Conjunction with Imposing Fines and Fees
• Consistent with Paragraph 342, the City has not imposed any additional charges, fines, fees, or costs in response to any alleged or found “Failure to Appear” Violation.
g) Ensuring Appropriate Alternative Sentences, Like Community Service, and the Availability of Payment Plan Options
• Pursuant to Paragraphs 344 through 346 of the Consent Decree, the Municipal Court provides for appropriate alternative sentences such as community service and payment plan options for satisfying fines, fees, and costs; both were observed during court as part of the March 2018 audit. The City has developed and received approval for policies related to alternative sentences, community service, and payment plans. Further auditing methodologies are being considered to assess the frequency and compliance of the community service and payment plan options being utilized by the court.
h) Ensuring the Independence of the Municipal Court from the City Prosecutor
• Pursuant to Paragraph 357 of the Consent Decree, the Monitoring Team observed that the separate case file system for the City Prosecutor was not yet fully operational during the March 2018 audit period.
• The City Prosecutor appeared to otherwise operate independently of the Municipal Court.
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i) Ensuring the Impartiality of the Municipal Judge • Pursuant to Paragraph 358 of the Consent Decree, the Monitoring Team was satisfied with the indications of the impartiality of the Municipal Court Judge as observed during trial proceedings as part of the March 2018 audit period, and will continue to monitor compliance with this provision of the Consent Decree during future audits.
G. Accountability The City has drafted and implemented policies with respect to the Duty to Report Misconduct and the Duty of Candor. During the reporting period, the City finalized its Internal Investigations policy after incorporating community feedback obtained during policy forums, and continued to develop a disciplinary matrix, citizen complaint form, and mediation policy. In September, the City also provided, upon request of the DOJ and the Monitoring Team, a complaint tracking sheet detailing the status of investigations initiated since 2017. Because the tracking sheet failed to capture the bulk of information required pursuant to Consent Decree ¶¶ 377-379, the Monitoring Team and the DOJ asked the City to provide a revised version. In the next reporting period, the City should finalize the complaint tracking document and complete policy development in this area. Once the entire suite of internal investigations policies has been completed, and has been approved by the Monitoring Team, the 30-day comment period will commence. In anticipation of this forthcoming rollout, the Monitoring Team will conduct an audit of the City’s internal investigations to establish a baseline for future audits. H. School Resource Officer Program During the reporting period, the Memorandum of Understanding (“MOU”) between FPD and the Ferguson-Florissant School District (“FFSD”) was finalized and approved by the Monitoring Team and executed by authorized FFSD executives. The MOU provides the foundation for establishing daily practices that will build trust and cooperation between FPD
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and Ferguson’s youth and sets out policies designed to achieve the Consent Decree’s goal of avoiding negative police interactions and developing alternatives that promote keeping students in school and out of the criminal justice system. During Year Three, the City, working together with the DOJ, will continue to develop the School Resource Officer Program Operations Manual (“SRO Manual”). Over the next year, the SRO Manual should be developed in consultation with FFSD faculty and staff, the Youth Advisory Board, and other FFSD stakeholders. The Monitoring Team anticipates that implementation of the SRO Manual, including SRO training, will be completed in Year Four.
I. Body-Worn and In-Car Cameras The Parties received final approval from the Monitoring Team with respect to their body-worn and in-car camera policies during the reporting period. Over the course of the next six months, the Parties should finalize the City’s policy with respect to public accessibility of body-worn and in-car camera recordings and then present all body-worn and in-car camera policies to the officers and the public for comment. The Monitoring Team expects that the rollout of both roll call and in-service training with respect to body-worn and in-car camera policies will occur by the end of the next reporting period. J. Data Collection During the next reporting period, the City must develop a plan for complying with the data collection provisions of the Consent Decree. Data collection affects nearly every aspect of the Consent Decree and is a critical piece of achieving Consent Decree implementation. At a minimum, the Monitor hopes that by March 30, 2019, the City will have identified each provision of the Use of Force; Stop, Search, Arrest, and Citation; and Bias-Free Policing sections of the Consent Decree that require data collection, and analyzed whether the required
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data is currently tracked by the FPD, and if so, how. While the Consent Decree requires developing a comprehensive data collection plan for all sections of the Consent Decree, doing so for these three key areas during the next reporting period would be a significant accomplishment. To achieve this, however, it is necessary that FPD designate, as soon as possible, a data collection coordinator or manager with the required expertise (e.g. in analytical methods, information technology and software systems, etc.). Although the DOJ has provided FPD with resources to help in this necessary task, the data collection coordinator will play a critical role in this process. To the extent data measures are not currently tracked by the FPD, the data coordinator must identify where and how such data will be tracked in the future. The City, which has made little to no progress with respect to data collection to date, must prioritize this aspect of the Consent Decree during Year Three or risk stalling further implementation efforts. III. Conclusion
Significant work remains to be done before the City achieves substantial compliance with the Consent Decree. To ensure continued progress as well as implementation by Year Five, this report lays out a number of significant milestones which the City is expected to achieve over the course of the next reporting period. In particular, significant resources must be dedicated to the areas of community policing and engagement, data collection, and training development. As was stated in the Spring 2018 Status Report, the Monitor continues to believe that hiring outreach, data, and training coordinators will provide the critical support necessary for the City to achieve the expected progress in these areas.
Additionally, in support of the City’s efforts to achieve both short and long term implementation goals, the Monitor submits a Year Three Workplan (“Workplan”), which
26

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outlines all of the Consent Decree benchmarks set by the Monitor for Year Three. When read together, the status report and the Workplan demonstrate that the Consent Decree cannot be read as many distinct or isolated sections, but as objectives so intertwined that achievement of one section is often dependent on compliance with another. For example, the development of underlying infrastructure, such as a robust data collection plan or a well-developed FPD community engagement program, will be instrumental in achieving compliance with dozens of other Consent Decree provisions. The Workplan also outlines the member of the Monitoring Team tasked with monitoring progress with respect to various Consent Decree provisions. The Parties are encouraged to reach out to the relevant subject matter expert where appropriate, as the Monitoring Team can serve to not only audit and monitor, but also to support efforts to achieve compliance throughout the implementation process. The Monitor has filed, as Appendix C, a Ferguson Monitorship Cost Summary, which details the total budget available and amounts charged to the City by the Monitoring Team during Years One and Two. It is the Monitor’s hope that the Stated Goals as outlined in Appendix A, together with the Workplan, will serve to encourage transparency, promote a holistic and comprehensive approach to implementation, and drive considerable progress over the course of Year Three. The Workplan has been submitted with this report as Appendix D.
Based upon its interactions with the Parties during the reporting period, the Monitoring Team continues to feel encouraged by FPD’s and the Municipal Court’s efforts to implement the provisions of the Consent Decree. While DOJ provided significant support to the City in reviewing, revising, and developing the required policies, achieving substantial compliance with the Consent Decree in a timely manner will require the City to assume more responsibility in the training and implementation phases. The Monitoring Team will continue
27

Case: 4:16-cv-00180-CDP Doc. #: 100 Filed: 11/30/18 Page: 28 of 29 PageID #: 1975
to collaborate with the Parties to ensure compliance with the Consent Decree, and will continue to detail its progress through semi-annual reports to the Court.

Date: November 30, 2018

Respectfully submitted,
/s/ Natashia Tidwell Natashia Tidwell Hogan Lovells US LLP 100 High Street 20th Floor Boston, MA 02110 617-371-1076 natashia.tidwell@hoganlovells.com

28

Case: 4:16-cv-00180-CDP Doc. #: 100 Filed: 11/30/18 Page: 29 of 29 PageID #: 1976 CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that the foregoing was filed electronically on November 30, 2018 with the Clerk of the Court for the United States District Court for the Eastern District of Missouri, and was served by ECF notice by operation of the Court’s electronic filing system.
/s/ Natashia Tidwell
29

Case: 4:16-cv-00180-CDP Doc. #: 100-1 Filed: 11/30/18 Page: 1 of 27 PageID #: 1977
Appendices to the Independent Monitor’s Spring 2018 Report United States v. The City of Ferguson Case No. 4:16-cv-180

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff, v.
THE CITY OF FERGUSON, Defendant.

)
) ) Case No. 4:16-cv-180
) ) Hon. Catherine D. Perry
)
)
)
)

APPENDICES TO FALL 2018 SEMIANNUAL REPORT

Case: 4:16-cv-00180-CDP Doc. #: 100-1 Filed: 11/30/18 Page: 2 of 27 PageID #: 1978 Appendices to the Independent Monitor’s Spring 2018 Report United States v. The City of Ferguson Case No. 4:16-cv-180
APPENDIX A
2

Case: 4:16-cv-00180-CDP Doc. #: 100-1 Filed: 11/30/18 Page: 3 of 27 PageID #: 1979 Appendices to the Independent Monitor’s Spring 2018 Report United States v. The City of Ferguson Case No. 4:16-cv-180
Implementation of Consent Decree Stated Goals: October 2018 – March 20191

Consent Decree Section

Completed During Reporting Period April 1, 2018 – September 30, 2018

To Be Completed Next Reporting Period October 1, 2018 – March 30, 2019

• Parties modified the policy revision and

review protocol to allow for officer and

Policy Revision &

community comment on developed

Review

policies prior to implementation

• Completed renumbering of use of force

general orders

Training

• Where applicable, developed schedule for delivery of training
• Trained FPD personnel on the Consent Decree
• Finalized systems and protocol for development of rollcall training

• Finalized community policing policy

Community Policing & Engagement

• Assemble and maintain up-to-date manual of all FPD policies and procedures
• Continue to renumber existing and revised policies
• Develop Training Plan as required by Consent Decree
• Train on developed policies
• Post community policing policy for officer and public comment
• Conduct roll call and in-service training on community policing policy
• Develop community engagement plan • Develop neighborhood mediation plan • Develop plan for responding to NPSC
recommendations • Develop shift schedule and deployment plan • Release results of Officer Attitudes and
Perceptions Survey • Begin hosting small-group dialogues between
FPD and community members • Establish Neighborhood Associations in each
of Ferguson’s apartment complexes • Monitoring Team to re-administer survey to
FPD officers • Monitoring Team to administer community
survey

1 The provisions outlined in this Appendix represent the six priority areas identified by the Parties (see Monitor Report, Section II) as well as other areas on which the Parties intend to make significant progress over the next reporting period.
3

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Appendices to the Independent Monitor’s Spring 2018 Report United States v. The City of Ferguson Case No. 4:16-cv-180

Voluntary Contacts, Stops,
Searches, Citations, &
Arrests

• Initiated policy development

• Post policies for officer and public comment • Complete policy development and conduct
rollcall trainings on investigatory stops and detentions and field investigation reports
• Continue to develop policy in other areas • Monitoring team to conduct baseline audit of
arrest reports and field inquiry reports

Use of Force

• Completed use of force policy development

• Post policies for officer and public comment • Train on developed use of force policies • Develop training curriculum for use of force
reporting and investigation policy
• Monitoring team to audit FPD use of force and incident reports to establish baseline for future audits

Recruitment

• Drafted recruitment plan and began negotiations with respect to salary provision

• Finalize recruitment plan • Train FPD officers on approved recruitment
plan
• Implement developed policy • Initiate compliance audit • Revise recruitment plan as necessary

Municipal Court Reform

• Monitoring Team conducted September • Monitoring Team to conduct March 2019 audit

2018 audit

• Complete policy development

• Developed policies regarding: notice to • Develop and implement public education

individuals; continuances; ability-to-pay

campaign regarding Municipal Court

determinations; alternative sentences and

operations

payment plan options; municipal arrest

warrants; and fair trial procedures

Accountability

• Completed policy development
• Incorporated community feedback into Internal Investigations Policy

• Post policies for officer and public comment • Implement developed policies • Train on developed policies • Monitoring Team to conduct audit of internal
investigations to establish baseline for future audits

School Resource Officer Program

• Finalized MOU between FPD and FFSD • Continue development of SRO Manual • Host policy forum • Implement MOU

• Completed body-worn and in-car camera • Post policies for officer and public comment

Body-Worn & In-

policy development

• Train on developed policies

Car Cameras

• Implement developed policies

• Develop and/or implement policies regarding

4

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Appendices to the Independent Monitor’s Spring 2018 Report United States v. The City of Ferguson Case No. 4:16-cv-180

Bias-Free Police & Court Practices Municipal Code Reform
Supervision
Data Collection

public accessibility of body-worn and in-car camera recordings
• Initiate policy development • Host policy forum
• Initiate development of plan for the reassessment and revision of the Municipal Code
• Continue to obtain feedback from Ferguson community, including ongoing review of the Municipal Code by the NPSC
• Develop shift schedule and deployment plan • Develop curriculum for Supervisor Trainings
• Identify a data collection coordinator • Identify all data-based provisions of the Use of
Force; Stop, Search, Arrest, and Citation; and Bias-Free Policing sections of the Consent Decree and analyze whether the required data is currently tracked within FPD, and if so, how. To the extent data measures are not currently tracked by the FPD, the data coordinator must identify where and how such data will be tracked in the future.

5

Case: 4:16-cv-00180-CDP Doc. #: 100-1 Filed: 11/30/18 Page: 6 of 27 PageID #: 1982 Appendices to the Independent Monitor’s Spring 2018 Report United States v. The City of Ferguson Case No. 4:16-cv-180
APPENDIX B
6

Case: 4:16-cv-00180-CDP Doc. #: 100-1 Filed: 11/30/18 Page: 7 of 27 PageID #: 1983 Appendices to the Independent Monitor’s Spring 2018 Report United States v. The City of Ferguson Case No. 4:16-cv-180
Good Cause Criteria Comprehensive Amnesty Program
Pursuant to Paragraph 326 of the Consent Decree in U.S. v. City of Ferguson, the City of Ferguson will eliminate all warrants and decline prosecution in cases initiated prior to January 1, 2014 unless, in the judgment of the City Prosecutor, good cause exists to continue prosecution. For purposes of this Program, the City will continue prosecution of any case initiated before January 1, 2014, if one or more of the following criteria are met:
1. The offense originally charged involved assaultive behavior or reckless endangerment to others, to include Driving While Intoxicated; or
2. The offense originally charged involves an identified victim who is available to assist in further prosecution of the pre-2014 case; or
3. The offense originally charged is a Driving While License Suspended or Driving While License Revoked, AND
a. The original Driving while License Suspended charge was issued because of something other than failing to appear or pay pursuant to RSMo 302.341.1; AND
b. The defendant is unable to show that either his license was reinstated, or that he is no longer driving.
If the first and any subsequent Driving while License Suspended or Driving While License Revoked charges were issued because the defendant’s license was suspended based on failing to appear or pay pursuant to RSMo 302.341.1, the prosecutor will dismiss the charge(s).
4. The defendant has been convicted, either through plea or verdict, of an additional offense since 2014 that involves assaultive behavior, reckless endangerment to others, to include Driving While Intoxicated; or
5. The City Prosecutor reasonably believes that, in the interests of justice and public safety, the case should proceed. For cases left open under this provision, the City Prosecutor shall articulate the factors leading to the decision to continue prosecution in a written statement of findings.
7

Case: 4:16-cv-00180-CDP Doc. #: 100-1 Filed: 11/30/18 Page: 8 of 27 PageID #: 1984 Appendices to the Independent Monitor’s Spring 2018 Report United States v. The City of Ferguson Case No. 4:16-cv-180
APPENDIX C
8

Case: 4:16-cv-00180-CDP Doc. #: 100-1 Filed: 11/30/18 Page: 9 of 27 PageID #: 1985 Appendices to the Independent Monitor’s Spring 2018 Report United States v. The City of Ferguson Case No. 4:16-cv-180
Ferguson Monitorship Cost Summary: Years One & Two
The chart below summarizes the total cost of $648,756.36 for work performed by the Monitoring Team during the first two years of the Monitorship. Specifically, the Monitoring Team charged $350,000 to the City of Ferguson in Year One and $298,756.36 in Year Two. Per the “Agreement Regarding Monitoring Costs,” which was signed by the Parties on February 5, 2016, monitoring of ongoing compliance and implementation of the Consent Decree by the Ferguson Police Department and Municipal Court will not cost more than $1.25 million in total or more than $350,000 in any single year, for five years. Accordingly, the Monitoring Team rolled over, to Year Two, any fees for work performed in Year One that were in excess of the $350,000 annual cost cap. These Year One excess fees, which amounted to $159,028.03, were incorporated into the Year Two costs.
In total, fees for work performed by the Monitoring Team in Year Two amounted to $207,908.33. However, Hogan Lovells US LLP wrote off $68,180.00 of its fees for work performed by its attorneys on a pro bono basis. As a result, the Monitoring Team charged the City $139,728.33 for work performed during Year Two. The $139,728.33 was thus added to the $159,028.03 in fees for work performed in Year One for a total Year Two Monitoring cost of $298,756.36.
Monitoring Costs: Total Charged for Years One & Two $648,756.36

Year One Costs

$350,000

Year Two Costs

$298,756.36

9

Case: 4:16-cv-00180-CDP Doc. #: 100-1 Filed: 11/30/18 Page: 10 of 27 PageID #: 1986 Appendices to the Independent Monitor’s Spring 2018 Report United States v. The City of Ferguson Case No. 4:16-cv-180
APPENDIX D
10

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Appendices to the Independent Monitor’s Spring 2018 Report United States v. The City of Ferguson Case No. 4:16-cv-180

CD ¶

YEAR THREE: August 2018 - July 2019

Phase I

Phase II

Phase III

Audit Schedule

COMMUNITY POLICING & ENGAGEMENT

City to host and participate in group

City to select Neutral

structured dialogues, arranged and led by a Facilitator.

19

qualified neutral facilitator, between police officers and community members and groups, with an emphasis on community

Completion date: 12/31/2018

members and groups who previously have

not had strong or positive relationships with

FPD or the City.

Develop plan for structured dialogues and submit to MT (Stewart & Parish).
Completion date: 01/31/2019

Begin first series of structured dialogues.
Completion date: 04/31/2019

City and FPD to develop a community-

Designate Community

engagement plan in consultation with the

Outreach Coordinator.

20

Neighborhood Policing Steering Committee ("NPSC"), the Civilian Review Board ("CRB"), individuals and groups within

Completion date: 12/31/2018

Ferguson, and community stakeholders who

can provide unique perspectives and

assistance, such as local colleges and

universities.

Develop Community Engagement Plan (and Crime Prevention Plan if needed) and submit to MT (Stewart & Parish).
Completion date: 04/30/2019

Public Comment Period for Community Engagement Plan and roll call/training briefing.
Completion date: 07/31/2019

City, in consultation with FPD and the

Develop Policy for

Public Comment Period for

NPSC, to develop and implement policies to Responding to NPSC

NPSC Recommendations

receive, consider, respond to, and act upon Recommendations and Policy and roll call

NPSC recommendations in a fully

submit to MT (Stewart & training/briefing.

23 transparent and timely manner. The City will Parish).

designate a City employee to provide administrative support necessary for the NPSC to effectively perform its advisory

Completion date: 04/30/2019

Completion date: 07/31/2019

function.

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CD ¶

YEAR THREE: August 2018 - July 2019

Phase I

Phase II

Phase III

The City to assist with the establishment of a Establish Neighborhood

Neighborhood Association in each of

Associations in

25 Ferguson’s apartment complexes.

Apartment Complexes.

Completion date: 04/30/2019

City to develop an FPD crime-prevention Finalize CP policy and Public Comment Period for Incorporate into In-

plan and community-policing plan to ensure submit to MT (Stewart). Community Policing Policy Service Training Plan.

26

that policing is oriented around community priorities and partnerships and based on

COMPLETE

problem-solving principles.

and roll call training/briefing.
Completion date: 01/31/2019

Completion date: 04/30/2019 (and annually thereafter)

FPD to develop and implement Ferguson’s Develop Neighborhood Public Comment Period for

“Neighborhood Policing Plan: A Police

Policing Plan and submit Neighborhood Policing Plan

27 Community Partnership."

to MT Stewart & Parish. and roll call training/briefing.

Completion date: 04/30/2019

Completion date: 07/31/2019

FPD to develop strategies for working with Develop schedule of

community to address crime trends, policing monthly command staff

complaints, neighborhood quality of life and CP/Crime analysis

28 working with community.

meetings and submit to MT (Stewart & Parish).

Completion date: 03/31/2019

Audit Schedule
MT (Parish) to conduct baseline audit of FPD's community engagement efforts. Audit Schedule: Spring 2019

12

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CD ¶

YEAR THREE: August 2018 - July 2019

Phase I

Phase II

29-30; 256258

The City will develop and implement a staffing plan that enables close and effective supervision and will revise its current shift sequences and deployment to better support a community-oriented approach to policing and will post officer patrol area assignments on FPD website.

Develop Shift Schedule/Deployment Plan and submit to MT (Stewart & Tidwell).
Completion date: 03/31/2019

33, 34

City to affiliate with the Community Mediation Services of St. Louis and to develop a plan for providing neighborhood mediations that promote lasting resolutions of appropriately selected disputes among community members, while reducing the need for involvement in the criminal justice system. The City will also affiliate with the Community Mediation Services of St. Louis to provide a community-centered mediation program to act as an alternative to the misconduct investigation process for certain civilian allegations of officer misconduct.

City, DOJ, and MT (Parish) to begin planning meetings.
Completion date: 03/01/2019

Finalize Neighborhood Mediation Plan.
Completion date: 07/31/2019

REFORM OF THE FERGUSON MUNICIPAL CODE

City to develop and implement plan for

Finalize plan for

comprehensive reassessment and revision of Reassessment and

remaining Code provisions to ensure they are Revision of Municipal 40 consistent with U.S. Constitution and other Code and submit to MT

laws and provide clear and appropriate

(Aghedo & Tidwell).

guidance to public and law enforcement

Phase III

13

Audit Schedule

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CD ¶

YEAR THREE: August 2018 - July 2019
officers.

Phase I
Completion date: 06/30/2019

Phase II

Phase III

POLICIES & TRAINING

City to review policies and procedures within City to review policies

one year of implementation to ensure they implemented in Year One

provide effective direction to FPD personnel and Two and identify

45 and remain consistent with Agreement.

deficiencies.

Completion date: 06/30/2019

The City agrees to maintain a complete, up- City to complete

to-date manual of all FPD policies and

renumbering of Policies

procedures that is organized and maintained (ongoing).

in a manner that makes it easily accessible

and clear to officers, employees, and others.

Officers and employees will have access to

46 the manual in hard copy form, and in a

readily usable electronic format (e.g.,

through an FPD intranet system accessible

within the mobile data computers of FPD

officers). Revisions and updates to FPD

policies and procedures will be incorporated

into the manual.

49-51

FPD to establish a Training Committee, develop schedule for delivering all training required in Agreement, and develop a written Training Plan for supplementing FDP recruits' academy training; enhancing FPD's

Establish Training Committee and submit names to MT (Tidwell).

Develop Training Schedule Submit training plan to and submit to MT (Stewart & MT (Stewart & Tidwell). Tidwell).

Audit Schedule

14

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CD ¶

YEAR THREE: August 2018 - July 2019
field training, and implement comprehensive in-service training.

Phase I
Completion date: 12/31/2018

Phase II
Completion date: 02/28/2019

Phase III
Completion date: 05/31/2019

Audit Schedule

BIAS-FREE POLICE AND COURT PRACTICES

65-71

The City to provide clear policy, training, and supervisory direction on prohibited conduct, including selective enforcement activities or decisions, non-enforcement of the law, and the selection or rejection of particular tactics and strategies based upon stereotypes or bias. The City's policies shall take into account influences of implicit bias, stereotype threat, and gender bias on officer enforcement decisions, use of force, and other police and court activity.

Parties to conduct public forums and initiate development of policies on Bias-Free Police & Court Practices
Completion date: Spring 2019

City to provide Monitoring Team with draft policy (Norwood).
Completion date: 07/31/2019

FPD police and court employees will provide Parties to conduct public Develop policies to address

timely and meaningful access to police and forums and initiate

access for LEP individuals

court services to all. City will develop and development of policies and submit to MT

implement policies and training to ensure that address access for (Norwood).

timely and meaningful police services to 67 LEP individuals.

LEP individuals. Completion date:

Completion date: 07/31/2019

Spring 2019

15

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CD ¶

YEAR THREE: August 2018 - July 2019

Phase I

Phase II

Phase III

VOLUNTARY CONTACTS, STOPS, SEARCHES, CITATIONS, AND ARRESTS

The City agrees to ensure that all FPD

City to review its entire

voluntary encounters, investigatory stops and body of existing policies

detentions, searches, citations, and arrests are to ensure requirements of

conducted in accordance with the rights,

Consent Decree in this

privileges, and immunities secured or

area are met and, where

protected by the Constitution and the laws of necessary, rescind and

75

the United States. FPD will ensure that these police activities are part of an effective overall crime prevention strategy; are consistent with community priorities for

revise.
Ongoing through Year Four

enforcement; build trust between FPD and

the community; and are adequately

documented for tracking and supervision

purposes.

76-82

The City to provide clear direction with respect to policies related to voluntary contacts and investigatory detentions in accordance with the requirements of the Consent Decree.

Develop Investigatory Detentions policy and revised Field Interview Report and submit to MT (Stewart & Tidwell).
Completion date: 01/31/2019

Public Comment Period for Investigatory Detentions policy and Field Interview Report and roll call training/briefing.
Completion date: Spring 2019

83-89

The City to provide clear direction with respect to policies related to searches with or without a warrant in accordance with the requirements of the Consent Decree.

Develop umbrella Search policy and submit to MT (Stewart & Tidwell).
Completion date:

Public Comment Period for umbrella Search policy and roll call training/briefing.
Completion date: Spring

Audit Schedule
MT to conduct baseline audit of FPD stops, searches, and arrests to include reporting of investigatory detentions. Audit Schedule: Winter/Spring 2019

16

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CD ¶

YEAR THREE: August 2018 - July 2019

Phase I 01/31/2019

Phase II 2019

90-95

The City to provide clear direction with respect to policies related to issuing citations and conducting warrantless arrests in accordance with the requirements of the Consent Decree.

Develop Power of Arrest and Detentions policy and submit to MT (Stewart & Tidwell).

Public Comment Period for Power of Arrest and Detentions policy and roll call training/briefing.

Completion date: 01/31/2019

Completion date: Spring 2019

Phase III

FIRST AMENDMENT PROTECTED ACTIVITY

Parties acknowledge that First Amendment Parties to conduct public Develop draft policies on

protected activities serve important societal forums and initiate

FPD officer response to First

functions, including promoting transparency development of policies Amendment Protected

in government affairs, ensuring

on FPD officer response Activity and submit to MT

110

accountability of public officials, and

to First Amendment

encouraging community feedback -- whether Protected Activity.

critical or laudatory -- that ultimately reduce tension and foster a sense of openness and trust between law enforcement and the

Completion date: Spring 2019

(Parish & Stewart).
Completion date: Summer 2019

public.

FORCE

The City will ensure that its use-of-force

Draft umbrella Use of

policies, training, supervision, and

Force and Weapon-

128- accountability systems are designed to ensure Specific policies and

170 that FPD officers use force in accordance

submit for Public

with the Constitution and other laws, FPD Comment.

policy, and the Consent Decree. City to

Conduct roll call training/briefing on Use of Force Policies.

Incorporate into InService & Supervisor Training Programs.

Completion date: 1/31/2018 Completion date: 04/31/2019 (and

17

Audit Schedule

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CD ¶

YEAR THREE: August 2018 - July 2019

Phase I

develop policies pertaining to general use-of-

force and weapon-specific requirements.

COMPLETE

Phase II

Phase III annually thereafter)

FPD to develop and implement comprehensive process for reporting and investigating all FPD officer uses of force. 172194

Draft Use of Force Reporting & Investigations Policy and revised Use of Force report and submit for Public Comment.
COMPLETE

Conduct roll call training/briefing on Use of Force Reporting & Investigations Policy.
Completion date: 1/31/2019

Incorporate into InService & Supervisor Training Programs.
Completion date: 04/30/2019 (and annually thereafter).

CRISIS INTERVENTION

FPD will implement a Crisis Intervention Designate a Crisis

Initiate development of Crisis

Team (CIT) first-responder model of police- Intervention Coordinator. Intervention program and

197- based crisis intervention with community, 206 health care, and advocacy partnerships.

COMPLETE

host policy forums. Completion date: Summer

2019

SCHOOL RESOURCE OFFICER PROGRAM

Monitor to develop an SRO program and

Parties to conduct public Submit draft SRO Manual to

operations manual that clearly defines the forums and initiate

MT (Tidwell).

role of each SRO and promotes the role of development of SRO 210 SRO as one of educator, counselor, mentor, Operations Manual.

and law enforcement problem-solver, consistent with best practices.

Completion date: Spring 2019

Completion date: Summer 2019

Audit Schedule
MT to conduct baseline audit of FPD Use of Force reporting. Audit Schedule: Winter/Spring 2019

18

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CD ¶

YEAR THREE: August 2018 - July 2019

Phase I

FPD will review and make a good faith effort Finalize and implement

to amend its Memorandum of Understanding MOU.

(MOU) with FFSD, to delineate authority and specify procedures for law enforcement

COMPLETE

interactions with students while on school

grounds, consistent with this Agreement.

211 Before providing SRO services at any school

in which FPD is not currently engaged, the

City will enter into an MOU with the

appropriate school district consistent with the

Consent Decree. Further, any subsequent

MOU with FFSD shall be consistent with the

Consent Decree.

Phase II

BODY-WORN AND IN-CAR CAMERAS

In an effort to bring continued transparency Finalize BWC and ICC Public Comment Period for

regarding police activities; improve the

policies including footage BWC and ICC policies and

effectiveness and reliability of use-of-force sharing provisions and roll call training/briefing.

and misconduct investigations; enhance supervision of FPD stops, searches, and arrests; and provide material for officer 228- training, the City will equip FPD officers

submit to MT (Goodrich). Completion date: 2/28/2019 Completion date: 12/15/2018

250

with body-worn and in-car cameras, and will

ensure that such devices are used consistent

with law and policy. All aspects of FPD's use

of body-worn and in-car cameras will be

designed and implemented to promote

transparency, provide learning opportunities

to officers, and increase officer safety, while

ensuring officer accountability and respect

19

Phase III

Audit Schedule
MT (Goodrich) to conduct audit of BWC and ICC policy implementation. Audit Schedule: Summer 2019

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YEAR THREE: August 2018 - July 2019
for individual privacy rights.

Phase I

Phase II

Phase III

SUPERVISION

75, 99108

The City agrees to ensure that all FPD voluntary encounters, investigatory stops and detentions, searches, citations, and arrests are conducted in accordance with the rights, privileges, and immunities secured or protected by the Constitution and the laws of the United States. FPD will ensure that these police activities are part of an effective overall crime prevention strategy; are consistent with community priorities for enforcement; build trust between FPD and the community; and are adequately documented for tracking and supervision purposes.

City to review its entire body of existing 4th Amendment-related policies to ensure requirements of Consent Decree in this area are met with regards to the role of supervisors and, where necessary, rescind and revise.
Ongoing through Year Four

The City will develop and implement a

Develop Shift

staffing plan that enables close and effective Schedule/Deployment

256258

supervision and will revise its current shift sequences and deployment to better support a community-oriented approach to policing and will post officer patrol area assignments on FPD website.

Plan and submit to MT (Stewart & Tidwell).
Completion date: 03/31/2019

Audit Schedule

20

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YEAR THREE: August 2018 - July 2019

Phase I

Phase II

City to develop and implement supervisory Develop Curriculum for Begin Supervisor Training

training course for all new and current

Supervisor Training

Program.

supervisors to carry out all supervisory duties Program and submit to 317 established in policy and this Agreement, and MT (Stewart).

provide specific instruction on methods for ensuring supervisory duties are fulfilled.

Completion date: 04/30/2019

Completion date: 06/30/2019

RECRUITMENT

City will develop, with Neighborhood

Finalize Recruitment Plan Roll call training/briefing.

Policing Steering Committee, a written Recruitment Plan that includes clear goals,

including salary study and submit to MT (Parish

Completion date: 2/28/2019

281- objectives, and action steps for attracting and & Tidwell).

285 retaining a high-quality and diverse work force.

Completion date: 12/31/2018

Phase III

Audit Schedule
MT (Norwood) to audit recruitment and hiring records to assess compliance. Audit Schedule: Spring 2019

MUNICIPAL COURT REFORM

City will make the following information

Identify alternative

publicly available by means other than

method(s) of public

website:

communication; make

- clear and accurate description of the

required information

329 municipal court payment process, including available by these

information regarding: any pre-established alternative means.

fines and fees; - a person’s court obligations once they are charged with a municipal ordinance

Completion date: 03/31/2019

21

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YEAR THREE: August 2018 - July 2019
violation; - a person’s rights and responsibilities for challenging a charge; - payment and community service options; - how to seek an ability to pay determination; and - the potential consequences for nonpayment or missed court dates.

Phase I

City will develop and implement a plan for a Develop and implement

public education campaign aimed at

public education

providing members of the broader Ferguson campaign.

330

community with accurate and complete information regarding operations of the FMC. The public education campaign will

Completion date: 03/31/19

include specific measures to inform the

public that appearing in court without being

able to pay pending fines or fees will not

result in jail time.

City will make broadly available information Identify alternative

regarding cost-free legal assistance that may method(s) of public

be available to individuals with pending

communication; make

municipal charges. 331

required information available by these

alternative means.

Completion date: 03/31/2019

Phase II

Phase III

Audit Schedule

22

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YEAR THREE: August 2018 - July 2019

Phase I

City will develop and implement a plan to Finalize and implement

regularly and at least on a monthly basis,

FPD and FMC concurrent

audit citations, arrest notification forms, and policies.

334

other notices of violations used by officers to ensure that such documents are completed properly and in a manner that provides

Completion date: 12/31/2018

individuals with thorough and accurate

information as required by this Agreement.

City will maintain up-to-date contact

Develop mechanism for

information for individuals with cases

requiring defendant to

pending in the FMC and ensure that court sign refusal to provide

staff request updated address and other

updated contact

335 contact information each time a defendant information.

appears in court or otherwise communicates with court staff and that any updated information received is maintained in the

Completion date: 1/31/2019

defendant’s municipal court file.

City will establish and implement protocols, Draft policy or ordinance.

through policy or ordinance, to ensure that arrest warrants related to municipal code violations will be issued, if at all, only after

Completion date: 03/31/2019

all other mechanisms available for securing a

348

person’s appearance in court have been exhausted. Such protocols will also ensure

that arrest warrants are not being issued in

response to a person’s financial inability to

pay a fine or fee. The protocols will also

include, at a minimum, the provisions of

¶348 (a)-(d).

Phase II

Phase III

23

Audit Schedule MT to review audit procedures and results.
MT (Aghedo) to conduct audit. Audit Schedule: September 2019
MT (Aghedo) to conduct audit. Audit Schedule: Fall 2019

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CD ¶

YEAR THREE: August 2018 - July 2019

Phase I

City will report a defendant’s failure to

Create tracking code in

appear or pay a fine in a case involving a

ITI to ensure notices are

moving traffic violation to the MO Dept. of sent to defendant from

Revenue only to the extent as required by FMC and are sent to

MO law. Prior to sending notification to

MDR by FMC.

351-

DOR, City will advise defendant, by mail, of pending notification and offer defendant reasonable opportunity to pay or present

Completion date: 1/31/2019

352 good cause for failure to pay outstanding fine

(MO Rev. Stat § 302.341.1). If defendant’s

license is suspended, City will provide

compliance letters immediately once a

defendant appears in court following the

suspension. City will ensure that compliance

letters are not conditioned upon payment of

outstanding fines or fees in full.

In cases in which a defendant’s driver’s

Create tracking code in

license has been suspended for failing to

ITI to ensure notices are

appear or pay a fine in a case involving a

sent to defendant from

moving traffic violation, City will provide FMC and are sent to

compliance letters that satisfy the

MDR by FMC.

352 requirements of MO Rev. Statute § 302.341.1 immediately once a defendant appears in court following the suspension.

Completion date: 1/31/2019

City will ensure that compliance letters are

not conditioned upon payment of outstanding

fines or fees in full.

Phase II

Phase III

Audit Schedule MT (Aghedo) to conduct audit. Audit Schedule: Fall 2019
MT (Aghedo) to conduct audit. Audit Schedule: Fall 2019

24

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CD ¶

YEAR THREE: August 2018 - July 2019

Phase I

City will implement appropriate mechanisms Develop policy or

for providing defendants with mental illness protocol; create tracking

or intellectual or developmental disabilities code in ITI and submit to

359 with information about their available

MT (Aghedo).

options for diversion from the municipal justice system.

Completion date: 03/31/2019

Within 60 days following the expiration of Draft annual report of

each year of the term of this Agreement, the Year Three activity for

City will produce an annual report describing FMC and submit to MT

FMC activity. The purpose of the report will (Aghedo).

415

be to inform the public of the City’s law enforcement achievements and challenges, as well as new programs and steps taken to address challenges and build on success. The

Completion date: 07/31/2019

annual report will further provide

information regarding the City’s

implementation and status of this Agreement.

Subject to applicable law, the annual report

will address the requirements contained in

subsections (a)-(n).

Phase II

Phase III

ACCOUNTABILITY

Holding public servants accountable when Finalize Disciplinary

Public Comment Period for Incorporate into In-

they violate law or policy is essential to

Matrix and Citizen

Disciplinary Matrix and

Service and Supervisor

361- ensuring legitimacy of governance and

Complaint Form and

Citizen Complaint form and Training Programs.

368

community confidence. Well-functioning

submit to MT (Tidwell). roll call training/briefing.

accountability systems also promote employee safety and morale. The City will

Completion date: 12/31/2018

Completion date: 04/30/2019

Completion date: 06/30/2019 (and annually thereafter)

25

Audit Schedule MT (Aghedo) to conduct audit. Audit Schedule: Fall 2019
MT (Tidwell) to conduct baseline audit of completed internal investigations. Audit Schedule:

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CD ¶

YEAR THREE: August 2018 - July 2019
review applicable policies and personnel regulations to ensure incorporation of these accountability principles. Any violation of the personnel rules and regulations, including of provisions relating to the principles of accountability, shall be subject to appropriate discipline, up to and including termination. These policies shall include a Duty to Report Misconduct; Duty of Candor; and Internal Investigations.

Phase I

City to provide and provide appropriate

Develop Community-

resources for community-centered mediation Centered Mediation

399- program to act as an alternative to 400 misconduct investigation process.

Program and submit to MT (Tidwell).

Completion date: 12/31/2018

Phase II
Public Comment Period for Mediation Program policy and roll call training/briefing. Completion date: 04/30/2019

CIVILIAN OVERSIGHT

405(d)

CRB will develop and recommend a program to promote awareness throughout the broader Ferguson community about the options available for filing misconduct complaints, and about the misconduct complaint process.

Within 60 days of implementation of Complaint Mediation Program City will develop awareness program and submit to MT.

Completion date: Winter 2019

Phase III

Audit Schedule Spring 2019

26

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CD ¶

YEAR THREE: August 2018 - July 2019

Phase I

Phase II

Phase III

Audit Schedule

DATA COLLECTION

To ensure that collected data is complete,

Identify a data collection In consultation with DOJ,

In consultation with DOJ,

accurate, and reliable, the City agrees to

coordinator.

City will complete and

City will complete and

work with the Monitor to develop and implement a cost-feasible data collection plan and related protocols, to be approved by

Completion data: 12/31/2018

provide to the MT (Goodrich) provide to the MT a worksheet identifying, for (Goodrich) a worksheet the provisions pertaining to identifying for all

the Monitor and DOJ.

Use of Force, Stop, Search, remaining CD provisions,

Arrest, and Citations, and

the data it currently

412

Bias-Free Policing, the data it collects, that which the

currently collects, that which CD requires, and where

the CD requires, and where and how such data is

and how such data is tracked tracked or will be tracked

or will be tracked in the

in the future.

future.

Completion date:

Completion date:

06/30/2019

03/30/2019

The City will make publicly available on

Ongoing as policies are

request and on the City’s website all FPD implemented.

and municipal court policies and protocols,

413

as well as all public reports described in the Consent Decree. Any exceptions will be

limited to information that must remain

confidential to protect public safety and

approved by DOJ and the Monitor.

Ongoing as policies are implemented.

Ongoing as policies are implemented.

Ongoing as policies are implemented.

27

 
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F1r11111 C1ll1b1r111v1
ldVOcaunu tor Empowered communnv Input

November 28, 2018

The Honorable Catherine D. Perry United States District Judge % Clerk of Court United States District Court Thomas Eagleton United States Courthouse 111 South 10th Street St. Louis, MO 63102

Re: United States v. City of Ferguson, Case No. 4: 16CV180 CDP

Dear Judge Perry,

Thank you again for providing an opportunity to submit written comments on behalf of the Ferguson Collaborative. The members of the Ferguson Collaborative appreciate the inclusive nature of the proceedings and participating in the consent decree process.

Per your instruction, the Ferguson Collaborative has selected two members who will jointly execute all written submissions. They are Emily Davis and Felicia Pulliam.

Respectfully submitted,
Felicia Pulliam Ferguson Collaborative

c-··---·--·-·-v ·
Emily Davis Ferguson Collaborative

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F1r11111 C1ll1ll1r1tiv1
Allvocadng tor Empowered communnv Input
November 28, 2018
The Honorable Catherine D. Perry United States District Judge % Clerk of Court United States District Court Thomas Eagleton United States Courthouse 111 South 10th Street St. Louis, MO 63102
Re: United States v. City of Ferguson, Case No. 4: 16CV180 CDP
Dear Judge Perry,
Thank you again for providing an opportunity to submit written comments on behalf of the Ferguson Collaborative. The members of the Ferguson Collaborative appreciate the inclusive nature of the proceedings and participating in the consent decree process.
While we recognize the parties have made some progress, it is the opinion of the Ferguson Collaborative that certain issues remain unresolved and we ask that consideration be given to our our concerns outlined below.
• After so much turnover in leadership at the Ferguson Police Department specifically the Chief of Police position, the community wants to be formally involved in the selection process for the new leader of the department. It isn't sufficient to have the newly selected leader introduced to the community at a welcome reception. Members of the community should be included in the review of resumes, narrowing of candidates, interviews and the final recommendation for hire. To facilitate this, members of the Neighborhood Policing Steering Committee are poised to step in and provide this level of representation on behalf of the community because they have been working jointly with the police department, elected and appointed officials, the Department of Justice and neighborhood groups to draft and review policy and assure satisfactory implementation of the Consent Decree. The Ferguson Collaborative asks that members of the

Case: 4:16-cv-00180-CDP Doc. #: 101 Filed: 11/30/18 Page: 3 of 4 PageID #: 2006
community are included in the process and suggest that interest and expertise exists in NPSC to facilitate this request. • Continue to follow the consent decree with community approval of policies is necessary to assure that community voice is included in the policies adopted. Recently, there was an opportunity for community to comment on policy draft. This is a necessary process and we hope that it continues. However, the opportunity to do so should be widely announced so that more people know they are actually welcome to provide comment and suggestion. Also, there are still many in our community that don't have access to technology so participation is limited. We ask that the comment period include a community based meeting to share the draft policy wherein community members can verbally shared their suggestions in addition to the technology based opportunity. • There should be a full review of all remaining cases. An audit of ten percent (10%) of remaining cases may result in injustice for some still facing the threat of prosecution. The parties should work to assure transparency and advance confidence by sharing why remaining cases will be prosecuted. The city should also design a process to notify citizens that their cases have been dropped. Additionally, the city should pay the cost to reinstate licenses lost in the unconstitutional ticketing and reimburse citizens the cost of reinstating licenses. While we ask the court to have the parties do as requested, we believe citizens due process is violated because so much time has passed. • The city must adopt a more robust and inclusive community engagement process. Many citizens are not aware of what is happening, when and where. The opportunity to learn from the Monitor or DOJ doesn't get to people that would participate. The community engagement is not working to increase knowledge and participation. Prioritization of the community engagement plan should include; a text alert system, regular accurate postings on the city website; postcard notification of important events; use of the electronic billboards and roadside campaign-style signs, postings in high-traffic locations, real follow through on the creation of neighborhood associations in the apartment complexes and attendance of monitor and parties at town halls and community meetings. Meaningful community engagement will work to provide a level of legitimacy for any outcomes. • The Ferguson Collaborative and members of the community have consistently requested a work plan and update of expenditures. Having this complemented by an updated timeline of completed and remaining action items is necessary for members of the community to understand progress. We still haven't received this and still want it produced and provided. • The Ferguson Police Department hasn't yet developed a data collection platform to adequately learn and understand what is happening in community. A program should be developed to integrate current information and allow future data collection and analysis. Also, the Ferguson Collaborative is concerned that the techniques used to collect specific data such as shot-spotter, that catches radar frequencies to determine shots fired is not only installed in Southeast Ferguson, but throughout the entire city in order to produce accurate data collection and is not used to further target the disenfranchised areas of our community.

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It is our hope that these issues will be explored and adopted moving forward. The Ferguson Collaborative remains committed to partnering with the parties and Monitor to improve communication, community engagement and design and adopt policies to eliminate the unconstitutional policing practices that have caused great harm. Your time and attention to these matters are greatly appreciated,

Felicia Pulliam Ferguson Collaborative

Emily Davis Ferguson Collaborative

 
 Case: 4:16-cv-00180-CDP Doc. #: 103 Filed: 11/30/18 Page: 1 of 10 PageID #: 2009

RECEiVED
NOV 3 ~ 1.ms
BY MA~l

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November 29, 2018

Via Overnight Mail and Hand-Delivery

Clerk of Court, United States District Court Thomas Eagleton United States Courthouse 111 South 10th Street St. Louis, Missouri 63102

RE: United States v. City ofFerguson, Case No. 4:16-cv-0180-CDP Written Comments Regarding Status of Consent Decree

Dear Judge Perry:

On behalf of the NAACP Legal Defense and Educational Fund, Inc. (LDF), we appreciate the opportunity to comment on the status of the implementation of the consent decree in the abovecaptioned case. LDF has closely monitored policing reform efforts in Ferguson and collaborated with local activists, lawyers, and community members to advance constitutional policing practices in the city. In 2014, LDF supported Ferguson residents' request that the U.S. Department of Justice (DOJ) open a civil rights investigation of the Ferguson Police Department (FPD) after the police-shooting death of Michael Brown, an unarmed Black teenager. 1 Following the DOJ's investigative report findings that FPD and other city officials engaged in a pattern or practice of excessive use of force as well as racially-biased and unconstitutional policing and court practices in violation of the U.S. Constitution and federal and state laws,2 we urged the DOJ and Ferguson city officials ("collectively, the parties") to develop and implement a consent decree. Additionally, prior to this Court's approval of the current consent decree, LDF submitted comments on how to support and strengthen the consent decree's provisions.3
On April 19, 2016 this Court approved the consent decree. For more than two years, LDF has monitored the implementation of consent decrees as well as similar agreements with police departments in New York City, New York and Baltimore, Maryland.4 With this experience, and consistent with this Court's November 15, 2018 Memorandum and Order,5 we offer the following

1 See Press Release, LDF, LDF Commends President Obama's Call for Action in Ferguson (Aug. 14, 2014), https://www.naacpldf.org/press-release/ldf-commends-president-obamas-call-for-action-in-ferguson/; see also NAACP LDF, FERGUSON IN FERGUSON, (2014), http://www.naacpldf.org/publication/ferguson-in-focus. 2 Civil Rights Division, U.S. Department ofJustice, Investigation ofthe Ferguson Police Department, 28-41, 62 (March 4, 2018),https://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/ferguson police department re port.pdf [hereinafter DOJ Report]. 3 Press Release, LDF, LDF Provides Written Testimony on Ferguson Consent Decree in Advance ofCourt-Ordered Public Hearing (April 15, 2016), https://www.naacpldf.org/press-release/ldf-provides-written-testimony-on-ferguson-consentdecree-in-advance-of-court-ordered-public-hearing/. 4 See generally Davis v. City ofNew York, Case No. 1:10-cv-0699-SAS (S.D.N.Y Jan. 28, 2010) (challenging the unlawful stop, questioning and arrest of African American and Latino public housing residents and their guests by New York City Police Department officers); United States v. Police Department ofBaltimore City, Case No. 1: 17-cv-0099-JKB. 5 United States v. City ofFerguson, Case No. 4:16-cv-0180-CDP, Order, Dkt. No. 99.
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

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comments and recommendations for ensuring Ferguson city officials' (the City) full and effective compliance with the consent decree's required reforms.

1. Timely and transparent selection process for a new FPD police chief
In October 2018, former FPD Police Chief Delrish Moss announced that he would step down as FPD police chief to care for his ailing mother.6 Deputy Chief Frank McCall agreed to serve as the interim chief as the City completes a national search for a new police leader. Consequently, the City has had three police chiefs in two years. Certainly, it will be difficult to maintain compliance with the consent decree without a leader who is experienced in and committed to transforming a police department.
During the 2016 national search for a police chief, the City conducted a transparent selection process that included the participation of the Ferguson community members-Ferguson resident even assisted with interviewing the finalists. 7 Because "[m]aking sure a cross-section of our city has input into the hiring process is a critical first step," the current police chief search should also include community input. 8 In fact, because the consent decree expressly requires the Neighborhood Policing Steering Committee (NPSC)9 and Civilian Review Board (CRB) 10 to meaningfully participate in the hiring process of FPD officers, we recommend the participation of both entities at all stages of selection process for the new police chief. Additionally, we support the community's request that the City hold a public forum, wherein community members express the qualities they are looking for in the next chief-another practice other police departments routinely follow. 11
When searching for a new police chief, soliciting the input of community members and stakeholders is not only common12 but is critical to maintaining transparency and continuing to improve police-community relationships. Because all applications for the new Ferguson police chief position are due December 1, 2018, we urge the parties to commit to a selection process that includes the recommendations above.

6 See Christine Byers, Ferguson police chief resigning, city launching national search for replacement, ST. LOUIS POST

DISPATCH, Oct. 10, 2018, https://www.stltoday.com/news/local/crime-and-courts/ferguson-police-chief-resigning-city-

launching-national-search-for-replacement/article 90f41 d62-052f-5048-9e3d-02b 14258a784.html.

7 See Aamer Madhani, Ferguson names finalists for police chief post, USA TODAY, Mar. 4, 2016,

https://www.usatoday.com/story/news/2016/03/04/ferguson-names-four-finalists-for-vacant-police-chief-post/813 21354/.

8 See comments by St. Louis Mayor Lyda Krewson, Christine Byers, St. Louis mayor forms citizen committee to search,

for new police chief, ST. LOUIS POST DISPATCH, May 25, 2017, https://www.stltoday.com/news/local/crime-and-courts/st-

louis-mayor-forms-citizen-committee-to-search-for-new/article c743bb9b-1 e1b-53 b8-95cf-ab5f89 582d5e.html ("Ensuring

that the police department is community-oriented and accountable to the public is paramount in hiring a new police chief)."

9 Consent Decree at para. 21(e), United States v. City of Ferguson, Case No. 4:16-cv-0180-CDP [hereinafter Consent

Decree].

·

10 Id. at para 405(f).

11 See News Release, Pasadena Office of the City Manager, Police Chief Recruitment - Updated Community Forum

Meeting, Aug. 20, 2018, https://www.cityofpasadena.net/city-manager/news-releases/police-chief-recruitment-updated-

community-forum-meeting/ ("Public input is crucial to selecting the best individual to lead the Department. I encourage all

community stakeholders to attend the upcoming forum(s) and share their thoughts on the characteristics and professional

background they feel are most important when selecting a new Chief.").

12 See e.g., Lauren Linder, Albany residents give input on selecting new police chief, NEWS 10, Apr. 15, 2018,

https://www.news1O.com/news/local-news/albany-residents-give-input-on-selecting-new-police-chiefll 122975177; see

also WTVC, How to pick a new police chief? City of Chattanooga releases plans, May 15, 2017,

https://newschannel9.com/news/local/how-to-pick-a-new-police-chief-city-of-chattanooga-releases-plans ("Including the

perspective of those whom you serve is immensely important when making a decision such as this").
2

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2. Public comment periods for the development and review of FPD policies and training curricula
The consent decree appropriately acknowledges that the FPD can only effectively protect and serve the Ferguson community if it has a strong relationship with residents. To accomplish this goal, in October 2018, the parties-at the urging of Ferguson residents, including the Ferguson Collaborative and LDF, and consistent with national best practices13-agreed to a 30-day public comment period for all FPD policies and procedures. We commend them for their willingness to open the policymaking process.
The 30-day public comment period is to provide community members with an opportunity to carefully review, understand, and make meaningful comments and edits to FPD's draft policies. This proved to be challenging, however, when city officials released 11 use of force policies (and accompanying appendices) at the same time, 14 giving community members-many of whom had never reviewed a police department's policy before-very little time to thoroughly review, understand, and draft written comments on all 11 draft policies. Thus, we recommend the release no more than one to three policies at a time to ensure a meaningful opportunity for both FPD officers and members of the public to review, comprehend and comment on the policies within the 30-day time period. Additionally, we urge the parties and monitor to publicize a calendar of public comment periods so that members of the public can anticipate the release of certain policies. The parties in the United States v. Police Department ofBaltimore City, et al consent decree follow this practice. 15
Additionally, the parties and monitor involved in the Baltimore Police Department consent decree permit public comment periods for draft and revised training curricula. We recommend the same for the Ferguson consent decree to increase community input and acceptance of policing practice by both officers and residents.
3. Timely completion of key consent decree requirements
Nearly three years after the effective date of the consent decree, numerous actions required in the consent decree-even those with a specific deadline-remain incomplete or unreleased. To ensure the City's timely and effective compliance with the consent decree, we urge the Court to mandate timely completion and status updates of the following areas:
a. The Monitor's Work Plan
Paragraph 424 of the consent decree requires the monitor to, "[w]ithin 90 days of assuming the duties of Monitor ... develop a plan for conducting: (a) reviews of policies, training curricula, and

13 See Final Report of the President's Task Force on 21st Century Policing at 2, 15, May 2015, https://ric-zai-

inc.com/Publications/cops-p3 l 1-pub.pdf; see generally Beyond the Conversation: Ensuring Meaningful Police-Community

Engagement,https:!!static l .squarespace.com/static/58a33e881b631 bc60d4f8b31/t/5b29056a758d460f539bc079/l 5294 l 502

2872/Policing+Project Beyond+the+Conversation.pdf.

14 The released use of force policies included: General Use of Force (Policy 4. 1.0), Use of Force Reporting (Policy 4.1.1),

Use of Force Review (Policy 4.1.2), Electronic Control Weapons (Policy 4.3.0), Canines (Policy 4.7.0), Batons (Policy

4.5.0), and Firearms (Policy 4.2.0), Vehicle Pursuits (Policy 4.8.0), OC Spray (Policy 4.6.0), Less Lethal Shotgun

Ammunition (Policy 4.4.0), Critical Incidents Response (Policy 4.2.1).

15 See BPD Monitoring Team, Public Feedback: Make Your Voice Heard on Proposed New BPD Policies,

https://www.bpdmonitor.com/public-feedback/, (last visited November 28, 2018); see generally, BPD Monitoring Team,

Revised

and

Updated

First-Year

Monitoring

Plan,

https://static l .squarespace.com/static/59db8644e45a7c08738ca2fl /t/5b9bf4abcd8 36603 dd0 8h250/1536947372976/BPD+-

+Updated+1st+Year+Monitoring+Plan+9+-13- l 8.pdf (listing comment periods for draft policies and training curricula). 3

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other written materials requiring Monitor review or approval; (b) evaluations and audits of whether the material requirements of this Agreement have been implemented; and (c) outcome assessments, including the community surveys required by this Agreement." Paragraphs 425-441 further describe the what should be included in the monitor's plan (the work plan). The work plan provides a clear view of the work needed to continually implement the consent decree and is therefore critical and timesensitive.
While we acknowledge that the consent decree has been assigned to two lead monitors in two years, this transition should have had limited impact on the City's obligation to implement the consent decree's requirements in a timely manner. Indeed, the monitoring team's role is to review and make recommendations to the City on how to fully comply with the consent decree. That said, a work plan developed by the monitor that includes a schedule for the review and audit of each requirement would guide the City's compliance and notify the public of when various requirements will be considered and completed. During this Court's September 18, 2018 status hearing (September status hearing) the monitor told the Court that she had previously submitted a draft of the work plan to the parties and planned to meet with the parties later that day to further solidify the work plan. 16 To date, the monitor has not shared a completed work plan with the community or filed it with this Court.
b. Creation and Implementation of Bias-Free Policies and Protocols
Ensuring FPD officers refrain from discriminating based on race, sex, religion, language ability, age, or other factors is crucial to the success of the consent decree. Paragraphs 70-74 of the consent decree reflect this principle by prioritizing the development and implementation of policies that instruct and train officers on bias-free policing practices. Specifically, the City must assess the accuracy and reliability of FPD's current processes for collecting and analyzing state-mandated "racial profiling" data by developing protocols for collecting and analyzing such data and outlining additional data that should be collected to improve the accuracy and reliability of FPD' s data collection methods. After this, the City must take immediate corrective action to ensure that any discriminatory action or disparate impact due to any FPD policy, plan, procedure, initiative, activity, or service in question is not further applied or administered in a discriminatory manner. 17 Similarly, paragraph 72 instructs both the City and FPD to develop cost-feasible protocols for annually conducting data-based assessments of the impact of all FPD and court programs, initiatives, activities, and services to determine whether they impose a disparate impact based on protected characteristics. Paragraph 73 requires the monitor to conduct ongoing disparate impact assessments and finally, paragraph 74 instructs the City to develop protocols for correcting such disparate impact.
Despite the consent decree's clear emphasis on bias-free policing and the parties and monitor's commitment to develop bias-free protocols and policies in the first year of the consent decree's implementation, 18 according to the Independent Monitor Spring 2018 Semiannual Report and Appendices (Spring 2018 Status Report) bias-free "policy development has yet to begin" but "should be completed within the next reporting period."19 Accordingly, we urge the Court to instruct the parties
16 See Transcript 12:1-13, Quarterly Status Hearing, Sept. 18, 2018, file:///C:/Users/Ktopps/Downloads/70.-Transcript-ofStatus-Conference-09.18.18.pdf [hereinafter September Status Hearing]. 17 Consent Decree, supra note 12, at paras. 70 and 71. 18 Independent Monitor Spring 2018 Semiannual Report at 13, https://fergusonmonitor.com/wpcontent/upioads/2018/06/Ferguson-Monitor-Spring-2018-Status-Report-and-Appendices.pdf [hereinafter Spring 2018 Status Report]. 19 Id.
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to give a detailed status update for all requirements outlined in paragraphs 70-75 and a firm timeline for completion of all incomplete tasks, including the development of bias-free policing policies.
c. The Citizen Complaint Form and Disciplinary Matrix
Paragraph 372 of the consent decree requires the City to develop an easily understandable and usable citizen complaint form that individuals may use when making a misconduct complaint. It further requires the City to make these complaint forms and other materials outlining the complaint process-including relevant telephone numbers and email addresses to obtain additional informationwidely and permanently available, including on the City and FPD websites; the lobby of City Hall; all Ferguson schools staffed by FPD employees; FPD headquarters; and the Ferguson Municipal Court. To date, the City has neither completed nor widely disseminated the complaint form. We urge the Court to push the City to create and disseminate this form as soon as possible, for the benefit of Ferguson residents.
Additionally, the FPD disciplinary matrix sets forth guidelines for what form of discipline should be imposed when an officer engages in misconduct. When the parties shared FPD's draft use of force policies for public comment and review, many of the policies referenced the disciplinary matrix. However, the parties did not disclose the disciplinary matrix. Though the initial comment period for the use of force policies has closed the community will continue to provide feedback on FPD draft policies that refer to the disciplinary matrix. Therefore, we recommend public release of the disciplinary matrix.

d. Data-Collection, Publication, and Analysis
The lack of an established, transparent, and reliable data collection method-and subsequent data collection, analysis, and publication-is one of the parties' most alarming deficiencies to date. Data collection is critical to adhering to nearly every part of the consent decree, and as this court noted nearly three months ago, necessary for measuring FPD's actions.20 Yet, many basic data sets remain uncollected, analyzed, or published.21 Worst, the consent decree requires most data collection on a periodic basis; meaning, the failure to collect data only increases as more time passes. As we approach the third year of the consent decree with significant data deficiencies, and the City attempts to transition to a new data collection system, the Ferguson community is only left to hope the parties will finally catch-up to all the data requirements in the consent decree, accurately review the collected data, and then timely modify its behavior to improve policing services.
Thus, we urge the court and monitor to not only require the City to produce detailed status updates on the new data collection system and all data requirements listed in the consent decree, including a data collection plan as required by paragraph 412,22 but to also require timely completion of these requirements. These instructions should also be applied to the consent decree's data publication requirements.23 By continuing to delay complete and accurate data collection and
\

20 See September Status Hearing, supra note 16, at Tr.28:15-23 and 16: 19-25; see also Tr.17:1-10 (DOJ stating the same). 21 See id. at Tr. 19: 14-17 ("[B]ecause of the limitations with data collection, there are still uncertainties regarding how uses of force are actually going to be documented and recorded.").
22 The Monitor noted in the September 18, 2018 September Status Hearing that it recently provided FPD with a template showing FPD "how they can start figuring out what data they actually need to collect." Id. at 17:4-5. 23 Paras 411, 413, and 414 of the consent decree require the City to publish certain data, reports, and resources on its website ("The City agrees to make publicly available on request and on the City's website all FPD and municipal court policies and protocols, as well as all public reports described in this Agreement ..." and "[o]n at least an annual basis, the City will make data collected pursuant to paragraph 411 pubgcly available on the City website in summary form, unless

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publication, the City deprives the court, monitor, and community the ability to evaluate the constitutionality of FPD's current policing practices.
e. Monitor audits
At the September status hearing, the monitor informed the court that due to data collection failure, the monitoring team struggled to obtain enough data to review FPD's 2017 uses of force incidents. Specifically, the monitor explained that she was unable to obtain proper data to complete the mandatory audit of FPD's uses of force from January 2017 through June 2018.24 When the monitor asked city officials to provide her with arrest, field interview, and use of force reports for that time period, the City provided "only a handful of field interview reports from which we could draw any information" and about 78 use-of-force reports, leaving the monitor "still trying to figure out whether ... [the team will] get the entire population of those [use-of-force reports]."25
In addition to use of force audits, paragraphs 434 and 435 of the consent decree detail extensive assessment requirements outside of FPD's uses of force. However, the monitor's Spring 2018 Status Report was limited to an audit report of the parties' municipal court reform efforts.26 Similarly, pages 18-21 of the same report include a detailed chart listing: the status of all municipal court reform efforts required under the consent decree, whether the parties have begun this work, and the corresponding audit status. We thus recommend the monitor produce a similarly detailed chart and description of: all actions the consent decree requires the City to complete (except for the municipal court reform efforts), the status of the City's implementation of such requirements, and status reports on all corresponding and required audits-and noting whether the incomplete audits are due to lack of data of reliable data. Keeping a detailed record would not only highlight all areas of noncompliance but would also identify areas where the City may require additional guidance or support.
f. Development and administration of annual community and police surveys
During the September status hearing, the DOJ told the Court the Police Foundation will assist with creating the required annual police and community surveys required by paragraph 429 of the consent decree. 27 Because the monitoring team already administered a police survey in 2017 but was "unable" to administer a similar survey for community members, we urge the parties to prioritize development and administration of the community survey.28 Importantly, the consent decree not only requires the monitor to "conduct a reliable, comprehensive, and representative survey of members of the Ferguson community" "[w]ithin one year of the Effective Date, and every year thereafter," it expressly requires the monitor conduct an initial survey to establish a "baseline" of the community's sentiments, satisfaction, and quality of engagements involving FPD and the municipal courts. No baseline survey, according to the consent decree, was ever administered.
prohibited by law."). To ensure compliance with this provision, the City should also publish the 2017 Officer Attitudes and Perceptions Survey. 24 See September Status Hearing, supra note 16, at Tr. at 7-8. 25 Id. at Tr. 5:5-10 and 7:17-23. 26 The Monitor noted in the Spring 2018 Status Report that "more progress has been made on the municipal court reform section of the Consent Decree than in other areas"-we agree the parties have achieved great progress in addressing the consent decree's requirements for municipal court reform. Given this, we are interested in the extent of progress completed in the other areas under the consent decree; see Spring 2018 Status Report at 7. 27 See September Status Hearing, supra note 16, at Tr. 11 :2-12; see also Consent Decree, supra note 12, at para. 429. 28 See Spring 2018 Status Report at 13.
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Notably, in 2015, the Ferguson Collaborative (FC) unilaterally decided to create a short survey to gather data on the community's sentiments; the FC administered the survey to community members and gathered its subsequent data.29 The FC survey and its accompanying data is attached hereto as Exhibit A. We urge the court, monitor and parties to review this community survey, incorporate its questions and data in the required police and community surveys, and use it as a baseline to evaluate whether the community's views and interactions with FPD and the municipal courts has changed since implementing the consent decree.
Additionally, we recommend that the St. Louis Ethical Society of Police and the NPSC participate in the creation and administration of the forthcoming community and police surveys. This would be consistent with paragraph 430(e) of the consent decree, which states the monitoring team will "[e]ngage in informal conversations with Ferguson residents, FPD officers, court staff, and DOJ representatives, and observe community meetings... " as it conducts the annual community surveys. Finally, we urge the parties to create, finalize and administer the first consent-decree mandated community surveys by no later than June 2019.
g. Displacement of Ferguson Apartment Residents
Paragraph 25 requires, within 180 days of the effective date, the City to assist with the establishment of a neighborhood association in each of Ferguson's apartment complexes including, Canfield Green, Parkridge, and Northwinds. Importantly, paragraph 25 also requires the City to work with these apartment complex Neighborhood Associations "in the same manner that the City consults and works with other Neighborhood Associations, such as Old Ferguson East, Jeske Park, and Old Ferguson West."
Within the last few months some of the very Ferguson apartment complexes noted in paragraph 25 have failed mandatory health and safety inspections, were deemed condemned, and began evicting and displacing the residents therein.30 We recommend that the City provide a status report on its interactions with the Neighborhood Associations listed in the consent decree, including how it is working with them to ensure the residents continually have safe and secure housing.
h. Community Involvement
Paragraph 26 requires the City to, within one year of the effective date, develop FPD crimeprevention and community-policing plans to ensure policing is oriented around community priorities and partnerships. Additionally, paragraph 33 requires the City to, within 180 days of the effective date, develop a plan for providing neighborhood mediations in Ferguson. These plans are merely a first step in creating positive community and policing relations. It appears the City has not implemented these plans. We recommend the City provide ·a status update and timeline for creating and implementing all plans.
29 See A Community Voice-A Survey of Ferguson Stakeholders and a Vision of Community Policing, Interim Report, August 2015 (attached hereto). 30 Nassim Benchaabane, Confusion reigns at Ferguson apartments where tenants were ordered out, ST. LOUIS POSTDISPATCH, Nov. 15, 2018, https://www.stltoday.com/news/local/metro/confusion-reigns-at-ferguson-apartments-wheretenants-were-ordered-out/article 8ff7caa2-10d3-5eb4-b44 l-a52c90 lfbdec.html; see also Roche Madden, Ferguson residents forced out of apartments after building labeled unsafe, Fox 2, Oct. 10, 2018, https ://fox2now .com/2018/ 10/ 10/ferguson-residents-forced-out-of-apartments-after-building-labeled-unsafe/.
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i. School Resource Officers

In the Spring 2018 Status Report the monitor noted that, as required by paragraph 210, the parties began developing a School Resource Officer (SRO) program and operations manual. Additionally, she noted that the parties, in accordance with paragraph 211, drafted a Memorandum of Understanding (MOU) between FPD and the Ferguson-Florissant School District (FFSD), the FFSD commented on the MOU, returned it to FPD, and are now awaiting the monitoring team's review of the revised version. We ask the court to request a status update on both the SRO program and the revised MOU. Importantly, to demonstrate the City's commitment to meaningful community involvement, we also encourage the parties to solicit community review and feedback on the SRO program and MOU.

j. Civilian Oversight

Paragraph 405 of the consent decree lists several tasks for the CRB. These include, among

other things: a) review, make findings, and recommend disciplinary action for all Force Review Board

investigations involving misconduct complaints and all investigations of complaints by members of the

public against FPD alleging misconduct involving excessive use of force, abuse of authority,

discourtesy, or use of offensive language, including, but not limited to, racial slurs; b) develop and

recommend a program to promote awareness throughout the broader Ferguson community about

options available for filing misconduct complaints and the misconduct complaint process; c) review

FPD policies, procedures, training plans and curricula, and make recommendations for modifications;

serve on officer hiring and promotion panels; d) develop and implement ways to enhancing FPD's

relationship with the community; and e) review crime data, racial profiling data, and complaint

statistics to identify patterns and trends. 31

·

Given these requirements, we urge the Court to inquire as to the status of all CRB requirements under the consent decree. Specifically, the Court should ask the parties how CRB provided oversight , on the areas detailed in paragraph 405, to what extent was that oversight documented, whether the CRB's recommendations and findings followed, and what requirements remain incomplete and why. In answering the Court's inquiry, the City should specify whether they have complied with all paragraph 405's reporting and implementation requirements, including whether CRB was consulted in the FPD's recent hires and revised polices, plans, and procedures.

In addition to CRB's tasks, the monitor is required to develop protocols to assess whether a) CRB is representative of the broader Ferguson community and b) CRB is effectively serving the civilian oversight functions described in Mo. Rev. Stat. § 590.653 and the consent decree. The Civilian Review Board Task Force is also required to conduct a comprehensive assessment of the CRB's operations to ensure that it is providing effective civilian oversight. The monitor should provide an update on the status of all the above.

k. Approximately 1,800 Remaining Amnesty Cases
The consent decree requires the City to create an amnesty program that, at the very minimum, creates a mechanism in which all cases that were initiated before to January 1, 2014 and yet, remain currently unadjudicated (the amnesty cases) are reviewed in accordance with the good-cause standard.

31 However, the Spring 2018 Status Report only notes that the City enacted the establishing ordinance for the CRB, which includes protocols for the selection of members, and has developed training materials for its members. It makes no reference to the other CRB's other duties.
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Though the City has dismissed over 7,000 amnesty cases under this provision, it has decided to keep approximately 1,800 amnesty cases open.
Worse, the DOJ investigative report explicitly details how the city attorney's office, municipal court officials, city officials, and FPD collectively over-policed and over-prosecuted Ferguson's Black residents for decades, resulting in severe fines and un¥onstitutional stops, arrests, charges, and jail time for cases just like the remaining 1,800 amnesty cases.32 The DOJ report provides real examples showing that Black residents are more likely to be stopped and given duplicative charges, especially for charges generally brought at an officer's discretion, and "once a charge is filed in Ferguson municipal court, a number of procedural barriers imposed by the court combine to make it unnecessarily difficult to resolve the charge."33 In other words, due to undeniable racially discriminatory practices between the FPD and municipal courts, "[c]ourt cases involving black individuals typically last longer than those involving white individuals and therefore, on average, an African-American defendant is 68% less likely than other defendants to have a case dismissed ... and three times less likely to receive the Voided outcome than others."34
Ferguson residents named in the remaining 1,800 amnesty cases are currently experiencing the same uncertainty, fear, and financial instability discussed in the DOJ report. We therefore urge the City to, and the Court to support, a dismissal of all remaining 1,800 amnesty cases. Given the City's documented discriminatory history and the need for transparency, if any amnesty cases remain, to create transparency and public confidence in City officials, we ask that the City specify the status, offense, and rationale for continuing each case. This will allow both the monitoring team and the community to evaluate the remaining cases, in a fully informed manner. Finally, we ask that the monitor and her team fully review all remaining cases, rather than the 10% cited at the September status hearing. 35
I. Stop, Searches, and Voluntary Contact
Paragraphs 75 and 109 require the City and FPD to develop protocols for regularly conducting cost-feasible, data-driven and qualitative assessments of its voluntary encounters, stops, searches, and arrests. The City and FPD must identify deficiencies and opportunities for improvement; implement appropriate corrective action; and document measures taken. We ask the parties to provide the Court with a status report on the creation and implementation of the above protocols and data analysis.
4. Conclusion
According to DOJ's investigative findings, the Ferguson community experienced years of discriminatory and unconstitutional policing and municipal court practices. FPD's policing practices targeted Black residents, permitted excessive and deadly force, duplicative charges, and a deprivation of numerous constitutional rights. To change this culture, the consent decree's principles and requirements must equate to more than mere words ori paper. We commend the Court, parties, and monitor for progress made to date to ensure the timely and vigorous implementation of every requirement in the consent decree. Significant work remains to be completed and the stakes could not

32 See U.S. Department of Justice, Civil Rights Division, Investigation ofthe Ferguson Police Department,

March

4,

2015,

at

9-16

and

71,

https://www.justice.gov/sites/default/files/opa/press-

releases/attachments/2015/03/04/ferguson police department report.pdf. 33 Id. at 68. 34 Id. at 69. 35 September Status Hearing, supra note 16, at Tr. at 9:21-23 ("Ms. Aghedo [of the monitoring team] is going to review

approximately 10 percent, maybe a little bit more... ").

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be higher. Therefore, we urge the Court, parties, and monitor to consider and adopt our recommendations.
If you have any questions, please contact Katurah Topps at 212-965-2254. Sincerely yours, Monique Dixon Deputy Director of Policy & Senior Counsel Katurah Topps Policy Counsel
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 Case: 4:16-cv-00180-CDP Doc. #: 107 Filed: 12/12/18 Page: 1 of 3 PageID #: 2042

RECEIVED
1,- LVl.'. 1 2 Z01B
U.S. District Court Eastern District of MO

F ERGUS 0 N
COLLABORATIVE

December 10, 2018
The Honorable Catherine D. Perry United States District Judge Clerk of Court United States District Court Thomas Eagleton United States Courthouse 111 South 10th Street St. Louis, MO 63102
Re: Additional Written Testimony for United States v. City of Ferguson, Case No. 4: 16 CV 180 CDP
Dear Judge Perry,
Thank you again for providing an opportunity to submit written comments on behalf of the Ferguson Collaborative. Given the extension of the period for written comments, the members of the Ferguson Collaborative would like to submit additional testimony.
[1] The Ferguson Collaborative is requesting that Judge Perry issues an order within 45 days that continues and extends all possible opportunities to hear from the public through oral and written testimony at every status update.
During status hearings where only parties speak, members of the public have heard updates that do not accurately or completely reflect the progress of the consent decree. This is detrimental to the faith in the consent decree for at least two reasons. First, the Judge solely relies on these updates and affirm the progress of the parties without knowing whether the update is actually being implemented in the way that the parties presented it. Second, by the time the community can respond to the inaccurate or incomplete portrayal of the progress, several months have passed, and the issue may no longer be ripe for community involvement or

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court intervention. Please permit the community to submit written and oral testimony at every status update.
[2] The Ferguson Collaborative is requesting that the City of Ferguson and the Department of Justice collect, compile, and publish two separate summaries of input on the Ferguson Police Department policies: one from members of the community and one from the police.
Community engagement and input only matters if the community can track and determine whether the City of Ferguson is actually incorporating their ideas, thoughts, and feedback into the Ferguson Police Department's policies and procedures. Thus, we request a clear and published summary of community members' feedback, and a separate summary for input by police officers. By merging comments and feedback from a blended group of civilians and officers, the Ferguson Police Department risk only incorporating their own police officers' comments into the final drafts of the policies. To avoid this risk, and in the spirit of full transparency, we request that a member of the consent decree implementation team, a community member, and the community liaison provide drafts of FPD's policies and procedures to the community, separate and complete summaries of input, and final drafts displaying which sections have been modified based on the feedback process. This process should happen before FPD implements the policy. We hope that the Monitoring Team will send out the parties' response to this request via email and on the monitor's website before Feb. 1, 2019.
[3] The Ferguson Collaborative is requesting immediate improvements to the unclear process and policies related to the Civilian Review Board in the next 45 days.
The Civilian Review Board needs more training and more authority to have any serious chance at holding police officers accountability in their treatment of Ferguson residents and other members of our community.
The process for complaint submission is hard to locate online. The City of Ferguson's website has information about some parts of the process, but does not have a complaint form. The website and brochure are silent on whether the police have to tell members of the public to file a complaint, especially if the civilian reported abuse or mistreatment to another officer.
For training: Most importantly, the Civilian Review Board should undertake trainings that teach members about all rights that civilians have and are constitutionally protected. Civilian Review Board members must also learn FPD policies regarding resident encounters to determine whether officers violated any procedure. As FPD policies evolve during the community input process, the City of Ferguson must share the latest and best versions of these policies to guide the CRB's work.
For authority: The Civilian Review Board, as well as the public, must have access to any disciplinary matrix that the police use to guide enforce their policies. If such matrix does not

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exist, then the Civilian Review Board should have the power to draft one to guide their work. Additionally, the CRB should have the power to discipline officers, including suspension and termination of current FPO officers, as well as to block the hiring of officers who have an adverse discipline history in other police departments.
Your time and attention to these matters are greatly appreciated,
1cia Pulliam an Emily Davis, on behalf of the Ferguson Collaborative
Ferguson Collaborative Ferguson, Missouri www.fergusoncollaborative.org

 
 Case: 4:16-cv-00180-CDP Doc. #: 118 Filed: 06/28/19 Page: 1 of 38 PageID #: 2199

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v.
THE CITY OF FERGUSON, Defendant.

)
) ) Case No. 4:16-cv-180
) ) Hon. Catherine D. Perry
)
)
)
)

INDEPENDENT MONITOR’S SPRING 2019 SEMIANNUAL REPORT

I. INTRODUCTION

Pursuant to Paragraph 438 of the Consent Decree entered into between the United States

Department of Justice (“DOJ”) and the City of Ferguson, Missouri (the “City”) (together, the

“Parties”), the Independent Monitor (the “Monitor” or the “Monitoring Team”) submits this

Spring 2019 Semiannual Report, which covers the reporting period of October 1, 2018 through March 31, 2019.1

Between October 2018 and March 2019, the City made slow, but steady progress in

furtherance of implementation of the Consent Decree. The City continued to collaborate with

the DOJ and the Monitoring Team to develop and finalize policies in priority areas. Although

drafts of numerous policies were completed early on in the reporting period, the Parties agreed

to delay finalization of those policies to allow the community an additional opportunity to

review and provide comment prior to implementation. After receiving the community’s

comments, the Parties have worked together to consider and, where appropriate, incorporate

1 In accordance with Paragraph 439 of the Consent Decree, the substance of this report has been agreed to by the Parties.
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community recommendations. The Monitoring Team is pleased to report that during the reporting period, the suite of policies pertaining to use of force became the first set of policies to move through this process and receive final approval from the Monitoring Team for implementation. FPD’s finalized use of force policies will go into effect once roll call training is complete.
In addition, numerous other policies have been and will continue to be finalized during the next reporting period.2 Accordingly, FPD must continue to prioritize and build out its roll call and in-service training schedules and programs to facilitate timely implementation of these policies. The City reported that its Training Committee began working on a training plan during the reporting period to guide this process. Completion of this plan during summer 2019 will be critical to the successful roll out and implementation of finalized policies.
The City continued to work to meet the deadlines established by the Monitor’s Year Three Workplan. See Dkt. No. 100-1 at 10-27 (the “Monitor’s Workplan” or “Workplan”).3 However, in practice, only a few employees in the Ferguson Police Department (“FPD”) and Ferguson Municipal Court (“FMC”) are responsible for the majority of the City’s implementation efforts to date. These individuals, particularly Interim Chief Frank McCall, Lieutenant Harry Dilworth, and Christine Lanfersieck, have collaborated with DOJ and the Monitoring Team to assist with policy development, training, and, on the Court side, audits.4
2 Throughout this report, the Monitor refers to both the “reporting period” and the “next reporting period.” For purposes of this status report, the “reporting period” refers to October 1, 2018 through March 30, 2019, while the “next reporting period” encompasses April 1, 2019 through September 30, 2019. 3 Throughout this report, the Monitor refers to “Year One,” “Year Two,” “Year Three,” etc. to identify past achievements and to outline future goals. The monitorship officially began when the former Monitor was appointed by the Court on July 22, 2016. Accordingly, Year One ran from August 2016 through July 2017, Year Two began in August 2017 and ended in July 2018, Year Three commenced in August 2018 and will end in July 2019, Year Four will begin in August 2019 and end in July 2020, and Year Five will commence in August 2020. 4 Ms. Lanfersieck left her position at the Ferguson Municipal Court at the end of the reporting period. She has been critical to the substantial progress achieved with respect to the reform of the Ferguson Municipal Court. The
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These key individuals have gone above and beyond, and have driven implementation progress forward while also completing the demanding daily tasks of their full-time jobs.
The City has not yet identified a Consent Decree Coordinator, a position that is required under the Consent Decree. See Consent Decree, ¶ 454. A Consent Decree Coordinator will assist the City in addressing the exact difficulties with which it currently struggles— coordination, communication, and high-level oversight of implementation tasks. Accordingly, the Monitoring Team recommends, once again, that a Consent Decree Coordinator be appointed to oversee implementation, to avoid overloading the few individuals already carrying out much of the implementation efforts, and to improve communications with the Monitoring Team. For instance, although the Monitoring Team published a Workplan in the Fall of 2018, it has not received regular updates from the City with respect to progress on that plan because no sole individual within the City is responsible for updating the Workplan and notifying the Monitoring Team about advancement in particular areas. As a result, the Monitoring Team is not always informed of progress that is made and/or may be unaware when a Workplan deadline has been missed. Improved communications through a Consent Decree Coordinator would also ensure that the Monitoring Team sets appropriate and achievable deadlines for implementation goals. In the fall, the City approved a Workplan that required it to establish a Training Committee by December 31, 2018, yet recently reported that it had established a Training Committee as early as the winter of 2017. In the future, the Monitoring Team would like to avoid creating new deadlines for tasks which have already been completed. Regular communication between the Monitoring Team and a Consent Decree Coordinator would solve
Monitoring Team applauds her excellent work and commitment to fulfilling the aims of the Consent Decree. In addition, Judge Brown also stepped down as Municipal Judge. The loss of these individuals at the Ferguson Municipal Court presents a challenge to continued progress with respect to the reform of the Municipal Court. The Monitoring Team is hopeful that the City will prioritize filling and training on Ms. Lanfersieck’s position during the next reporting period so that Municipal Court reform can continue to progress toward substantial compliance.
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these concerns and would help ensure the City’s compliance with the Workplan in a timely manner.
For these reasons, the Monitoring Team was pleased that the City initiated its search for a Consent Decree Coordinator during the reporting period. The Monitoring Team commends the City for developing a comprehensive job description and promoting the position on its website as well as in other places. Filling this position is essential and will avoid the Monitoring Team and/or DOJ having to prompt the City to begin and complete implementation tasks that are already detailed in the Workplan. Without assistance in allocating resources and workflows, initiating and overseeing efforts or projects required under the Workplan, and communicating clearly with the Monitoring Team and DOJ about the status of various outstanding matters, the City faces enormous challenges in maintaining compliance with the Workplan, and risks delaying the implementation process even more than the current rate. The Monitoring Team hopes that with the addition of a Consent Decree Coordinator during the next reporting period, the City’s implementation efforts will be more proactive and efficient moving forward.
A. The Monitoring Process During the reporting period, the Monitoring Team supported the City in its efforts to achieve substantial compliance and conducted reviews and audits to determine compliance with both the Consent Decree and the Year Three Workplan. This report provides a status update with respect to the three critical phases of implementation: (1) policy revision and review; (2) training and implementation; and (3) auditing and compliance assessment.
1. Policy Revision and Review The Consent Decree requires FPD and FMC to incorporate its provisions into specific policies and procedures as appropriate. See Consent Decree, ¶ 42. The Parties continue to work
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collaboratively in executing the policy revision and review protocol set forth in the Fall 2018
Status Report, which announced a modified protocol that includes a 30-Day Comment Period to
allow for additional community input on policies prior to policy rollout. See Dkt. No. 100 at 3-
4. The modified protocol proved to be successful and resulted in numerous community
stakeholders submitting robust commentary on policies to the Parties. The addition of thirty
days for the community to comment on draft policies, as well as time for the Parties to revise
policies based upon the feedback received, has created some delay in the policy development
process. However, any negative effect of delayed policy rollout is diminished by the fact that
community members, including FPD officers, now have a clear role and voice in the policy
development process, which is an important aim of the Consent Decree. Accordingly, as of October 1, 2018, the policy development protocol continues to be implemented as follows:5
i. Kick-off/Announcement of Policy Area: FPD notifies DOJ and the Monitor of its intent to begin drafting or revising policies in an identified subject area;
ii. Technical Assistance: The appropriate Subject Matter Expert on the Monitoring Team provides FPD and DOJ with technical assistance in the form of model policies and/or initial guidance as to best practices in the identified subject area;
iii. Gap Analysis: FPD and DOJ conduct an assessment or gap analysis of FPD’s current state of affairs (i.e., ascertain how FPD’s existing policies, practices, and systems differ from the Consent Decree’s requirements and best practices);
iv. Solicitation of Community Input: Several provisions of the Consent Decree require community involvement in the implementation of specific policies, including those designed to improve police/community relations. The Parties are committed to soliciting community feedback on other policies as well, even where not explicitly required by the Consent Decree. While the Parties continually evaluate the best means of involving community stakeholders in the policy development process, the Parties have found that policy forums are an effective means of inviting and obtaining community input.
v. Policy Revision: FPD and DOJ revise policies, practices, and systems in the target subject area to the extent required under the gap analysis;
5 The steps outlined in the process are not necessarily intended to be implemented sequentially. Rather, the Parties and the Monitoring Team determine the appropriate methodology on a case-by-case basis.
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vi. Return to Monitor/SME: Upon completion of a draft policy, the Parties submit the policy to the Monitor and/or appropriate Subject Matter Expert for review. The Subject Matter Expert will review the policy and either provide approval or arrange for a conference call to discuss additional revisions; and
vii. 30-Day Comment Period: Once the Monitoring Team has approved a draft policy, the City will email the policy to FPD officers from varying ranks and units. Officers will have a meaningful opportunity to review and comment on the new or revised policy or procedure during a 30-day period. At the same time, FPD will post the policy to the FPD website for review by the community. Community members will also have 30 days to provide comment on the draft policy or procedure. At the close of the 30-day period, the Parties will determine whether any modifications to the draft policy are appropriate. If modifications are made, the revised policy shall be submitted to the Monitor for review and final approval. After the Monitor has approved the final policy, officers will be provided roll call training and the finalized policy will be implemented and published.
2. Training and Implementation
Training is, of course, essential to moving policies out of development and into
implementation. During the reporting period, the City identified eight individuals as members
of the Training Committee. In compliance with Paragraph 49 of the Consent Decree, four of
these individuals are representatives from the FPD and four are representatives from the
Neighborhood Policing Steering Committee (“NPSC”). During the reporting period, the City
provided the names of the individuals on the Training Committee to the Monitoring Team as
was required under the Workplan.
The City was also tasked with developing a training schedule by February 28, 2019. See
Dkt. No. 100-1 at 14. Although the City provided the Monitoring Team with a spreadsheet
listing the general availability of police training courses in Missouri, the Consent Decree
contemplates a training schedule that outlines the delivery of “all training specifically required
by the provisions of [the Consent Decree.]” Consent Decree, ¶ 50. While the courses listed in
the spreadsheet may serve as partial or even complete trainings on some of FPD’s finalized
policies, the Monitoring Team was not provided with the information needed—such as the
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curricula of those courses—or with the City’s initial assessment of whether the proposed courses meet the Consent Decree’s requirements. To the extent FPD plans to develop its own training sessions, a schedule for those roll call and in-service sessions should be incorporated into the training schedule. During the next reporting period, the City should provide documentation to the Monitoring Team so that it may better assess compliance with this measure.
The City reported that during the reporting period, the Training Committee began to draft the Training Plan. The City also contacted Subject Matter Expert (“SME”) Robert Stewart for technical support and guidance during the development of this plan. SME Stewart provided comments on the plan. The City, through its Training Committee, should continue these efforts, referring to Paragraph 51 of the Consent Decree and to SME Stewart for guidance as needed. In addition, and in conjunction with these efforts, the Training Committee must work during the next reporting period to develop the supervisory training course for all new and current supervisors. See Consent Decree, ¶ 317. Such training shall specifically train supervisors to carry out all supervisory duties established in policy and in the Consent Decree, and shall provide specific instruction on methods for ensuring that supervisory duties are fulfilled. Id.
As was stated in the Fall 2018 Status Report, the development of an adequate Training Plan, including the supervisory training course, will require thoughtful consideration of the various methods required for training delivery as well as a careful examination of Missouri state certification requirements to determine whether they harmonize with the Consent Decree’s requirements for officer training. The Monitoring Team notes that the City has identified a Training Coordinator, Sgt. Dominica Morrow, and has delegated responsibility for developing training materials to Lt. Dilworth, both of whom are sworn officers who have been asked to take on these roles in addition to completing their normal work duties. By assigning individuals with
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numerous other responsibilities to also assume the Training Coordinator’s duties, the implementation of a training program is made considerably more difficult. The Monitoring Team is hopeful that the City will see the importance of hiring a dedicated, full-time Training Coordinator, with expertise in training development and delivery, to assist in the development of a comprehensive training program.
In the meantime, the Monitoring Team commends Lt. Dilworth, in particular, for his diligence and ability to balance the many Consent Decree-related requests that are frequently made of him. Even without the benefit of a completed training plan in place, Lt. Dilworth has developed and prepared himself to conduct roll call trainings as policies are finalized. Roll call trainings provide officers with an overview of the new policies prior to implementation and prior to in-service training on those policies. Lt. Dilworth’s ability to translate policies into roll call trainings will ensure that new policies are implemented on a timely basis once finalized. The Monitoring Team hopes that his excellent work, coupled with the Training Committee’s prioritization of the training plan’s development, will enable the City to even more effectively develop, submit to the Monitor, and execute a training plan and accompanying programs during the next reporting period.
3. Auditing and Assessing Compliance As previous reports have indicated, with the exception of the FMC, much of the implementation phase of the Consent Decree remains to be completed. The Monitoring Team conducted its third Municipal Court audit in September of 2018, the details of which are described in Section II(F) below. The remaining subject areas did not enter the implementation stage during the reporting period and could not be audited. For the reasons discussed herein, implementation did not occur in the areas of use of force, stops, searches, and arrests,
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accountability, and community engagement during the reporting period. The Monitoring Team expects that these policies will go into effect during the next reporting period.
The Monitoring Team will commence a “Baseline Audit” designed to assess the implementation of each new policy approximately six months following the rollout of that policy. Prior to this Baseline Audit, during the pre-implementation phase, the Monitoring Team will engage in various “Pre-Baseline Reviews.” The purpose of a Pre-Baseline Review is not assessment; instead, Pre-Baseline Reviews will be used by the Monitoring Team to develop an audit methodology for each subject area. Pre-Baseline Reviews play an important role in identifying how information is gathered and stored by the City as well as which data points and processes will be assessed by the Monitoring Team during the Baseline Audit. Pre-Baseline Reviews also recognize that it would be unfair to audit compliance with policies that are not yet in effect. Accordingly, the Monitoring Team will use the Pre-Baseline Reviews to identify key indicators of compliance and to frame methodologies for future audits of implemented policies. In compliance with the Consent Decree, the Monitoring Team will notify the Parties in advance of commencing any review or audit. At that time, the Monitoring Team will also submit any request for documents or materials required for its review or audit. See Consent Decree, ¶ 426. II. DETAILED STATUS UPDATE
The Monitor issued a Year Three Workplan as Appendix D to the Fall 2018 Status Report. See Dkt. 100-1 at 10-27. The Workplan provides benchmarks for the City’s achievement of both short and long term implementation goals, and will be updated and republished on an annual basis. Concurrent with each spring status report, the Monitoring Team will update the Workplan to detail the status of compliance during the relevant reporting period. The Year Three Workplan, updated to reflect tasks that were completed, not completed, in
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progress, or in need of prioritization during the reporting period of October 1, 2018 through March 31, 2019, is submitted with this report as Appendix A. With respect to tasks that were targeted for completion during the reporting period, Appendix A indicates whether they are “complete” or “incomplete.” A status of “incomplete” signifies that the City is out of compliance with the Workplan’s stated deadline. The City must prioritize incomplete tasks and/or propose an alternative deadline by which it can commit to completing the outstanding action items. Appendix A does not assess compliance of items that were not due during the reporting period; instead, the table indicates tasks as “in progress” if the City has already commenced work on the project, and as “to prioritize” if little or no progress on the task has been made and the lack of progress may thwart the City’s ultimate ability to meet the stated deadline during the next reporting period.
The remainder of this report details the status of implementation with respect to the six stated priority areas: (1) community policing and engagement; (2) bias-free police and court practices; (3) stops, searches, citations, and arrests; (4) use of force; (5) recruitment; and (6) accountability. Under the Workplan, policy development and rollout in each of the six priority areas should be completed by the end of Year Three, with the exception of bias-free police and court practices, for which there need only be a draft policy completed by the Parties. In addition to these priority areas, the City, with support from the DOJ and Monitoring Team, has continued working toward implementation of the remaining requirements of the Consent Decree, with continued emphasis on implementation of provisions regarding municipal court reform, the school resource officer program, body-worn and in-car camera policies, First Amendment protected activities, and data collection and analysis. Progress in these subject areas is also detailed below.
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A. Community Policing and Engagement The City’s progress continues to be sluggish in the area of community policing and engagement. During the reporting period, the City completed a draft Community Policing Policy and published it to the City website for a 30-day comment period between November 15, 2018 and December 15, 2018. The Parties evaluated and incorporated, where appropriate, community commentary into the draft policy, which will be finalized, approved by the Monitoring Team, and rolled out during the next reporting period. In its Spring and Fall 2018 Status Reports, the Monitoring Team recommended that the City hire a community engagement and/or outreach coordinator to oversee implementation of the community engagement provisions of the Consent Decree. The Monitoring Team has expressed concern over the fact that in the absence of a dedicated community outreach coordinator, the City has struggled to advance the Consent Decree’s goal of improving the City’s relationship with the Ferguson community and to proactively implement the aspects of the Consent Decree targeted at achieving this goal. During the reporting period, the City failed to meet the stated Workplan goal of developing and implementing staffing, shift sequencing, and deployment plans by March 31, 2019. App. A at 4. Similarly, the City neither developed nor submitted to the Monitor a schedule of monthly command staff meetings in which FPD discusses and analyzes significant crime trends, policing complaints, neighborhood quality of life issues, and community priorities for policing, as was required by March 31, 2019. Id. at 3. These plans are specifically intended to support a community-oriented approach to policing. See Consent Decree, ¶¶ 28, 29-30, 256-258. In addition, the City did not take the requisite steps required to ensure compliance with certain Workplan provisions with stated completion dates of April 30, 2019. For example,
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Paragraph 25 of the Consent Decree requires the City to assist with the establishment of a Neighborhood Association in each of Ferguson’s apartment complexes, including but not limited to Canfield Green, Parkridge, and Northwinds. Pursuant to the Workplan, compliance with this provision should have been completed by April 30, 2019, but little was done during the reporting period, and since that time, with respect to this measure.6 App. at 3. Moreover, although the City reports that it has been developing its Neighborhood Policing and Community Engagement Plans, drafts of which were also due in the spring of 2019, the City has made no discernible progress towards revising its shift schedule and staffing levels so that the deployment of FPD officers reflects a commitment to a Ferguson-specific community policing program or towards identifying an entity to conduct a staffing study in the first instance. The Monitoring Team continues to stress the interrelationship of Consent Decree Paragraphs 26-30 and urges the City to avoid viewing each provision in isolation.
During the reporting period, the City designated Assistant Chief Al Eickhoff as its community outreach coordinator. The appointment of Assistant Chief Eickhoff to this position should mark a renewed effort to build momentum in the area of community policing and engagement as progress cannot continue to stall in this area. As stated in the Fall 2018 Status Report, the Monitoring Team expects the City to prioritize community engagement and to make significant progress with respect to implementing community-oriented provisions of the Consent Decree over the course of the next six months. Accordingly, the Monitoring Team is hopeful that by the end of Year Three, the City will, under Assistant Chief Eickhoff’s direction,
6 The City periodically updates the Monitoring Team on its progress toward completion of the Workplan. In its most recent update, the City reported that it “remains ready and willing to assist any neighborhood associations with their formation efforts.” However, the City has not provided any documentation of its outreach efforts to these associations, including any communication of its readiness to assist.
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successfully complete—or, at the very least, develop a comprehensive plan for addressing—the outstanding action items in this area.
With respect to the Neighborhood Policing Steering Committee (the “NPSC”), the group continued to play a critical role during the reporting period in supporting and providing feedback to the Parties with respect to various community-focused policies. The City reported that its policy for responding to NPSC recommendations is in development. During the next reporting period, the NPSC should consult with the City as it works to finalize the Community Engagement Plan and the plan for responding to and acting upon NPSC recommendations. The Civilian Review Board (“CRB”) will also work with FPD during the next reporting period to provide feedback and support during the development of the Community Engagement Plan. Under the Workplan, these plans should be submitted to the Monitoring Team by the end of Year Three. App. A at 2-3.
1. Civilian Oversight In December 2018, the Monitor attended a joint meeting with the CRB and the CRB Task Force to discuss CRB operations as well as the Task Force’s assessment of those operations. The Monitor recommended that the Task Force wait to conduct its assessment of the CRB until the CRB has had an opportunity to review and make findings on a more substantive number of investigations. The Task Force will likely conduct its assessment at the end of Year Three or at the beginning of Year Four. Finally, longstanding vacancies on the CRB stalled the CRB’s progress and have called into question the City’s compliance with Paragraph 406 of the Consent Decree, which requires the City to ensure that the CRB has the resources, training, and capacity to fulfill each of its responsibilities. Consent Decree, ¶ 406. The Monitoring Team recommended that the City
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prioritize compliance with this provision and endeavor to fill the vacancies on the CRB as soon as possible. Although these seats remained open at the close of the reporting period (March 31, 2019), the Monitor is pleased to report that at the time of the filing of this report, the seats have been filled. The Monitoring Team appreciates the City’s recent efforts to fill vacancies on the CRB and hopes that it will continue to prioritize the maintenance of a fully staffed CRB in the future.
2. Community Dialogues & Mediations During the reporting period, the City took steps to meet the provisions of the Consent Decree requiring structured dialogues and formalized mediation programs. See Consent Decree, ¶¶ 19, 33-34. The City consulted with Community Mediation of St. Louis with the hope that it would serve as a neutral facilitator willing to lead small-group structured dialogues between police officers and community members, but has not finalized any plans for these dialogues or programs. Although the City did not meet the January 31, 2019 Workplan deadline for developing a plan for hosting and participating in a series of dialogues, the City met with Community Mediation of St. Louis on at least two occasions in order to formulate this plan. During the next reporting period, the City should accelerate progress with respect to the development of this plan as the City has not yet commenced hosting these structured dialogues as was required by the Workplan. See App. A at 2. The City also reported that it began work with Community Mediation of St. Louis with respect to developing a community-centered mediation program and providing neighborhood mediations among community members. See Consent Decree, ¶¶ 32-34, 399-400. For additional information regarding the status of the Community-Police Mediation Process and Community Mediation Services of St. Louis Agreement to Meditate, please refer to Section II(G)
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below. The Monitor encourages the City to reach out to SME Steven Parish for guidance and support as it develops and finalizes these programs during the next reporting period.
Within sixty days of the City’s implementation of the misconduct complaint mediation program—which will serve as an alternative to the misconduct investigation process for certain civilian allegations of officer misconduct—the CRB will develop and recommend a program to promote awareness of the options available for filing and proceeding with misconduct complaints in Ferguson.
3. Surveys Paragraphs 429 and 430 of the Consent Decree require that the Monitoring Team conduct annual surveys of members of the Ferguson community, including Ferguson residents, law enforcement personnel, and detained arrestees. In particular, the surveys are aimed at gathering information about (1) the community’s experiences with and perceptions of FPD, public safety, and the municipal court; and (2) police officers’ attitudes regarding their jobs and the Ferguson community. During the reporting period, the Monitoring Team continued its work with the National Police Foundation with respect to preparing for the delivery of community and officer surveys over the course of Year Three. In February 2018, the Monitoring Team, along with members of the National Police Foundation, met with community members in Ferguson during a town hall to discuss strategies for the successful administration of a community survey. Based on that and other meetings with Ferguson community members, the Monitoring Team worked with the National Police Foundation to develop and finalize a community survey, and met with community stakeholders to finalize a plan for the administration of that survey.
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This work has resulted in the Monitoring Team launching its community survey, which will be publicly available for the period of April 8 – July 8, 2019. Community members can access the Monitor’s survey at: www.tinyurl.com/FergusonMOsurvey. During this period, hardcopies of the survey and access to public computers are also available at Ferguson City Hall, Ferguson Public Library, and the Urban League’s Ferguson location. During the three month period in which the survey will run, the Monitoring Team will review anonymous demographic results associated with survey responses as surveys are completed to ensure that participants are representative of the Ferguson community. To the extent certain demographic or geographic groups are not represented in the results, the Monitoring Team will take steps to keep the survey open for a longer period of time and/or increase its efforts to promote the survey to those populations during the month of July 2019.
During the reporting period, the City took steps to work directly with the National Police Foundation in order to conduct a series of officer surveys. This process experienced delays as a result of change in personnel in the Chief of Police and City Manager positions. However, the City and the National Police Foundation have recently recommenced discussions and have plans to implement these surveys during the next reporting period.
B. Bias-Free Police & Court Practices The Parties continue to develop policies pertaining to bias-free police and court practices, with the goal of submitting initial draft policies to the Monitoring Team prior to the close of Year Three. The Parties made substantial progress with respect to this effort during the reporting period. In April, after the close of this reporting period, the Parties held two round table policy forums designed to solicit input on these policies from the Ferguson community and were assisted by Monitoring Team SME Professor Kimberly Norwood. The Parties have plans
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to hold an additional forum targeting youth this fall. Accordingly, the City is on target to provide the Monitoring Team with draft policies, inclusive of initial public comments, during the next reporting period.
To further promote bias free policing and court practices, the Consent Decree requires that all FPD police and court employees provide timely and meaningful access to police and court services to all, including individuals who have a limited ability to speak, read, write or understand English (“LEP individuals”). Consent Decree, ¶ 67. In its most recent progress report, the City reported that Ferguson does not have a population of non-English speakers or LEP individuals. Regardless of the City’s assessment of its current population, the Consent Decree mandates that the City implement an access plan for LEP individuals, a population the City recognized in its recently finalized Community Policing policy.7
C. Voluntary Contacts, Stops, Searches, Citations, and Arrests During the reporting period, the Parties continued policy development in the area of voluntary contacts, stops, searches, citations, and arrests. Specifically, the Parties worked to incorporate community feedback received during the summer 2018 policy forums into the draft policies. Once completed, the initial suite of draft policies were submitted to and preliminarily approved by the Monitoring Team. The draft policies were then made available to FPD officers and the Ferguson community, and were posted online in accordance with the 30-Day Comment Period, on June 25, 2019. Following the close of the public comment period, the Parties will assess and incorporate commentary received from the community into the policies and will work to finalize all policies in this area during the next reporting period.
7 FPD’s Community Policing policy, which the City posted for public comment during the reporting period, lists as a “policing principle,” FPD’s recognition that it serves many diverse communities, including individuals with limited English proficiency.
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Because implementation of these policies has been delayed, the Monitoring Team has delayed its Pre-Baseline Review in this area. The Monitoring Team will conduct a Pre-Baseline Review in the beginning of Year Four—when these policies will be closer toward implementation—and will develop its Baseline Audit methodology at that time.
D. Use Of Force During the reporting period, the City finalized its suite of use of force policies. As part of this process, FPD posted the draft policies to its website from October 13, 2018 through November 15, 2018, incorporated feedback received from the community into the draft policies, and received approval from the Monitoring Team with respect to the revised policies. The finalization of this suite of policies is a noteworthy milestone with respect to the City’s efforts to achieve substantial compliance with the Consent Decree as this is the first set of policies for which policy development is complete. During the next reporting period, the City should continue with the momentum it has built around implementation of these policies by rolling out the policies to the FPD officers and conducting roll call and in-service training programs on the policies. The Monitor repeats its request that training materials be provided to the Monitoring Team at least 21 days prior to each training session. The finalized use of force policies will go into effect once roll call trainings are complete and will be posted to FPD’s website. The Monitoring Team will conduct a Pre-Baseline Review by analyzing arrest and use of force reports during the next reporting period. The information contained in these reports will assist the Monitoring Team in finalizing its Baseline Audit methodology for this subject area, which will occur approximately six months following implementation.
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E. Recruitment The Parties completed a draft Recruitment Plan for attracting and retaining a highquality and diverse work force more than one year ago. Approval of this plan has been delayed as the City has not yet developed a method for complying with Paragraph 283(a) of the Consent Decree, which requires the City to offer salaries that will place FPD among the most competitive of similarly sized agencies in St. Louis County. The Monitoring Team has anticipated completion of the Recruitment Plan during the previous two reporting periods, but the City has been unable to make further progress with respect to this requirement. Under the Workplan, the City was expected to finalize and train on the Recruitment Plan by December 31, 2018. App. A at 12. The City did not meet this requirement and attributes the delay to the collective bargaining process. The Monitoring Team urges the City to finalize the Recruitment Plan during the next reporting period. Once completed, the provisions of the Recruitment Plan must be explained to rank and file members of FPD, with documentation of this training provided to the Monitoring Team. Upon implementation, the Monitoring Team will review job applications and background investigation files to assess compliance. F. Municipal Court Reform As required by Paragraph 323 of the Consent Decree, the Monitoring Team has collaborated with DOJ and the City to support the City’s efforts to reform the Municipal Code, which must protect public safety and enable fair and impartial resolution of municipal charges. The Consent Decree delineates measures that are designed to (1) ensure enforcement of the Municipal Code is driven by public safety; (2) implement the Comprehensive Amnesty Program; (3) reform the practices of the Municipal Court; and (4) ensure ongoing assessment and improvement of the Municipal Court.
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1. Audit Procedures & Methodology
Pursuant to Paragraph 424 of the Consent Decree, the Monitoring Team established a
biannual audit schedule for the specific provisions addressing the Municipal Code and
Municipal Court reform. The first audit was conducted in August 2017. Biannual audits are
now scheduled to occur each year in March and September.
As part of the original workplan for the Municipal Court, sent to the Parties in July 2017,
the Monitoring Team identified twenty provisions of the Consent Decree designated for
auditing. The methods and procedures for auditing these provisions are divided into six
categories:
i. Document Review: Review of policies, procedures, reports, schedules, and other documents such as the City budget;
ii. City Ordinance Review: Review of ordinances that the City was required to enact, repeal, or revise in compliance with the Consent Decree; most, if not all, required changes to City ordinances were completed before the effective date of the Consent Decree;
iii. Database Review: Access or review reports from the Computerized Computer System or database, ITI, used by the Municipal Court to track cases, and confirm the existence, or non-existence of arrests and citations for rescinded ordinances like Failure to Appear; confirm data related to waived Failure to Appear fees; and review other reports as necessary, including reports on fees collected for various state and municipal funds. Because the Monitoring Team currently does not have remote access to ITI, this task has been accomplished through observing the database information on a Municipal Court computer during onsite visits or reviewing ITI reports generated by the Court Staff;
iv. Website Review: Review the Ferguson Municipal Court’s public website, as well as the website of the City’s online payment vendor, to ensure compliance with the Consent Decree provisions that require the City to maintain a website and to make certain information publicly available and readily accessible through the website;
v. Case File Review: Onsite review of case files to audit compliance with the Consent Decree provisions related to the Comprehensive Amnesty Program, the reduction or dismissal of cases in which defendants were subject to fines and fees related to Failure to Appear charges, and collecting updated contact information for individual defendants; and
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vi. Observation of Municipal Court Operations: Attend court sessions to observe the operations of the Ferguson Municipal Court, including the judge’s advisements to defendants, required notifications to defendants, ability-to-pay determinations, options related to alternative sentences and payment plans, and the independence and impartiality of the Municipal Court Judge and City Prosecutor.
2. The Monitor’s Assessment
During the September 2018 audit, each provision related to Municipal Court Reform was
evaluated and provided with one of the following compliance grades:
i. Substantial Compliance: Indicating that the City has satisfied the written requirements of the Consent Decree provision and fulfilled the purpose of the provision by doing so;
ii. Partial Compliance: Indicating that the City has satisfied some but not all requirements of the Consent Decree provision;
iii. Initial Development: Indicating that, during the audit period, the City has taken at least one measure in the process of fulfilling the requirements of the Consent Decree, but has not yet completed its requirements;
iv. Out of Compliance: Indicating that the City received notice that the Consent Decree provision would be assessed during the audit period, but has not yet fulfilled the requirements of the provision and has not taken meaningful steps to do so; and
v. Not Assessed: Indicating that the Monitoring Team did not give the City notice that this provision of the Consent Decree would be assessed this reporting period. For Consent Decree provisions that the City addressed ahead of schedule, without notice of assessment from the Monitoring Team, the City has received one of the compliance grades outlined above.
This report outlines the findings of the September 2018 audit as well as the status of each actionable Consent Decree provision related to Municipal Court Reform.8 A detailed summary
of this information is contained in Appendix B to this report.
3. The Comprehensive Amnesty Program
Pursuant to Paragraph 326 of the Consent Decree, the City implemented a
Comprehensive Amnesty Program. Specifically, Paragraph 326(a) requires the City to decline
8 The results of the March 26-28, 2019 audit will be reported on in the Monitor’s Fall 2019 Status Report. 21

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prosecution of cases initiated prior to January 1, 2014 that were open and without a disposition, except in cases where the City Prosecutor found good cause to continue the prosecution. The Parties worked collaboratively to develop and agree upon good cause criteria to evaluate these cases. See Appendix B to the Monitor’s Fall 2018 Status Report, Dkt. No. 100-1 at 7. The Parties also agreed that the City Prosecutor would document which good cause criteria was used to justify the decision to keep cases open for continued prosecution.
The City has completed review of all 7,595 cases and has indicated the good cause criteria under which the 1,744 cases filed prior to January 1, 2014 have been kept open. The City declined prosecution of 5,851 cases, including 1,362 cases during the last audit period. The number of cases that remain open under each of the good cause criteria are as follows:

Criteria

Description of Good Cause Criteria

1

Involving assaultive behavior or reckless endangerment to others, including Driving While Intoxicated.

2

Involving an identified victim who is available to assist in further prosecution.

Involving the following charges:

Driving While License Suspended or Driving While License Revoked, and

(a) the original Driving While License Suspended

3

charge was issued because of something other than

failing to appear or pay pursuant to RSMo 302.341.1;

and

(b) the defendant is unable to show that either his license was reinstated or that he/she is no longer driving.

Involving a defendant convicted of an additional offense since

4

2014 that involves assaultive behavior or reckless endangerment

to others, including Driving While Intoxicated.

Number 316 563
857
0

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5

Where the City Prosecutor reasonably believes that, in the interests of justice and public safety, the case should proceed.

Total number of pre-2014 cases that remain open for prosecution:

89 1,744

The Monitoring Team reviewed 10% of the pre-2014 cases that have been kept open under at least one of the good cause criteria listed above. Among the 175 cases reviewed by the Monitoring Team, the audited sample included all cases that were kept open under good cause criteria number two and which pertained to a failure to comply with law enforcement, as well as all cases kept open under good cause criteria number five.
With respect to cases kept open under good cause criteria number two, the Monitoring Team’s review raised issues of concern. Specifically, none of the 51 case files that were audited contained notes by the City Prosecutor documenting a recent effort to confirm whether there is a victim available to assist in further prosecution of the case. In fact, only one of the cases included any recent notes—i.e. notes that were created between 2017 and 2019 as part of the Comprehensive Amnesty Program review—explaining why the case was kept open. For that case, which involved the burning of a victim’s clothes, the Prosecutor’s memorandum stated that the case was continued for prosecution because it “directly related to the burning.” The memorandum did not otherwise clarify whether the victim remained available to assist in prosecution.10
The cases that remain open pursuant to good cause criteria number two raise legitimate questions about whether the identified victim is available to assist in further prosecution.

9 Each of these eight case files contains a memorandum from the City Prosecutor explaining why the case has been kept open. Six of these cases involve the exterior of real property, including issues associated with trash accumulation or tree removal. During the next reporting period, the Monitoring Team will meet with the Parties to discuss in more detail the application of criteria number five to these specific cases.
10 The Monitoring Team notes that this case, like others kept open under good cause criteria number two, would arguably comport with good cause criteria number five as well.
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Indeed, given that it is now seven to nine years after the alleged conduct occurred, the victims, whether they are individuals or companies, may find themselves unavailable or unwilling to either assist or provide information about or access to relevant witnesses who are necessary to prosecute the case. The Monitoring Team has expressed this concern to the City, and is optimistic that a resolution agreed to by the Parties will be reached during the next reporting period.
The Monitoring Team also assessed the City’s compliance with Consent Decree Paragraph 326, Sections (b), (c), and (d). Pursuant to Paragraph 326(b), the City eliminated all pending charges, fines, and fees related to Failure to Appear (“FTA”) violations through an order issued by the Municipal Court Judge, without requiring defendants to make bond payments, appear in court, or take any other action. The Monitoring Team also reviewed a report from the court file system in order to confirm that there are no active or pending FTA cases. Pursuant to Paragraph 326(c) of the Consent Decree, the City repealed all or parts of Ferguson Municipal Code § 13-60, § 13-63, § 13-70(2) and (3), and § 44-50, and eliminated all pending fines and fees imposed pursuant to the applicable provisions of these sections. The Monitoring Team’s audit confirmed that all cases related to these obsolete provisions have been cleared out of the Municipal Court’s electronic file. The Monitoring Team is pleased to report that there are no active or pending cases associated with these provisions.
Finally, pursuant to Paragraph 326(d) of the Consent Decree, where a defendant made total payments exceeding the amount of the initial fines and fees imposed for a municipal ordinance violation, including payments for associated FTA violations, the City recommended that any additional fines be stayed and the case closed without requiring defendants to make a bond payment, to appear in court, or to take any further action. Where payments did not total or
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exceed the original fine amount, the City recommended lowering the amount owed to the amount of the initial fines and fees imposed, minus any payment amount already made by the defendant. The Municipal Court judge entered orders reducing the amount due for each defendant as recommended by the City, and FMC staff updated the court’s electronic file system to account for the fine reduction in each case. The Monitoring Team reviewed a random sample of 10% of the defendants for which FTA fees were reduced between March 2018 and August 2018 (totaling 40 defendants) and confirmed that the FMC electronic file system reflects the appropriate FTA fee reductions. In total, between March and September 2018, the City waived $135,569 in FTA fees for 1,226 unique cases involving approximately 400 defendants.
To date, the City has implemented all aspects of the Comprehensive Amnesty Program as required under Paragraph 326 of the Consent Decree, except for those related to good cause criteria number two, as explained above. In addition, Paragraph 327 of the Consent Decree requires complete implementation of the Comprehensive Amnesty Program as well as an agreement by the City not to execute any municipal arrest warrants or to collect any fines or fees identified in Paragraph 326 while implementing this program. Consent Decree, ¶ 327. The City has fully complied with this provision, with the exception of good cause criteria number two, discussed herein. Accordingly, substantial compliance with respect to Paragraph 27 is linked to the resolution of the outstanding issues pertaining to good cause criteria number two. The Monitor recognizes the City’s commendable work with respect to the implementation of the Comprehensive Amnesty Program and is optimistic that the City will achieve substantial compliance with respect to Paragraphs 326 and 327 during the next reporting period.
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4. Summary of Audit Findings Pursuant to Paragraph 328 of the Consent Decree, the City has worked cooperatively with both the DOJ and the Monitoring Team to develop and implement most of the ordinances and policies necessary to ensure the fair administration of justice, the constitutionality of Municipal Court procedures, and the legality of its processes. As outlined in Appendix B, the Ferguson Municipal Court was assessed as follows during the September 2018 audit:
• Substantial Compliance: ¶¶ 324; 325; 326(b-d); 333; 335; 336; 340; 342; 344; 345; 353; 356; and 358.
• Partial Compliance: ¶¶ 326(a); 327; 329; 338; 339; 348; 357; and 413. • Not Yet Assessed: ¶¶ 330; 331; 334; 337; 341; 346; 349; 350; 351; 352; 354;
355; 359; and 360. Details pertaining to each of the audited provisions (excluding the Comprehensive Amnesty provisions) are presented below. Consent Decree paragraphs that were not assessed by the Monitoring Team during the September 2018 audit will be reported on in subsequent reports, once those provisions have been audited.11 The assessed provisions are discussed in accordance with the fourteen key areas for remediation of the Municipal Court as they are outlined in the Consent Decree:  Increasing transparency of court operations. To increase the transparency of accessibility to municipal court operations, Paragraph 329 requires the City to make public, through a variety of means, clear and accurate information about certain aspects of municipal court operations including payment collection and processing and alternative fee arrangements. The Monitoring Team determined that the City has posted the required information on its
11 The following Consent Decree paragraphs were audited for the first time during the March 2019 audit: ¶¶ 330; 331; 334; 351; and 359. The results of the March 2019 audit will be included in the Monitor’s Fall 2019 Status Report.
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website. However, because the City has yet to articulate alternative methods for wider dissemination of this information, this provision remains in partial compliance.
 Ensuring adequate notice to individuals charged with a violation of the Ferguson Municipal Code. The City provided the Monitoring Team with citations, summonses, arrest notification forms, and other charging documents used by FPD which contain information required under Paragraph 333 of the Consent Decree. The City also created a supplemental form containing information specifically required by Sections (d), (h), (i), and (j) of Paragraph 333, and which was not already included on the citation, summons, arresting, and charging documents. This supplemental form advises defendants of their right to challenge the charge in court and includes instructions regarding how to initiate that challenge, provides a clear statement that the recipient is entitled to have the amount of the imposed fine proportioned to the recipient’s ability to pay, includes a range of possible penalties for failing to meet court requirements, and explains how to acquire information regarding a pending charge, including how to contact a clerk of the Municipal Court by phone or in person. The supplemental form was provided to FPD for officers to distribute in conjunction with each citation issued. Accordingly, the City is in substantial compliance with Paragraph 333 of the Consent Decree.
During the September 2018 audit, the Monitoring Team observed court proceedings and confirmed that FMC staff provides each defendant who appears in court with an “Updated Contact Information” form, pursuant to Paragraph 335 of the Consent Decree. The City updated the form to request a signature when a defendant refuses to provide updated contact information. Completion of the form is optional. The Monitoring Team reviewed all 26 files from the September 17, 2018 night court docket and confirmed that each file contained the Updated Contact Information form. Most of the forms were signed by the defendants, even if new
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contact information was not provided. Accordingly, the Monitoring Team has assessed the City as being in substantial compliance with this provision.
 Revising the online payment system to make all municipal court payments available online except where prohibited by law. The City achieved substantial compliance with Paragraph 336 of the Consent Decree as it engaged a vendor called The Payment Group (TPG) to manage its online payment system. In anticipation of the fact that the Monitoring Team will audit Paragraph 337 in the future, the City entered into a Memorandum of Understanding with Rise Community Development/CivTech St. Louis in order to give FMC citation recipients access to the “YourSTLCourts” online information system. The Monitoring Team is pleased to see the City’s progress in this area even though this provision has not yet moved to the auditing phase. Pursuant to Paragraph 338, the City provided the Monitoring Team with a copy of the Privacy Policy of its online payment vendor TPG, but will need to ensure similar protections once the forthcoming online information system is operational.
 Eliminating unnecessary barriers to resolving cases. Pursuant to Paragraph 339 of the Consent Decree, the City developed and implemented a continuance policy, which is available through FMC’s website. During the next reporting period, the City must develop a method of recording all requests for a continuance, including whether those requests were granted or denied, to enable effective auditing of compliance with the continuance request process required by Paragraph 339(b). The City’s website, as well as the reception window at FMC and FPD, provide accurate information regarding the hours and location of the Court, pursuant to Paragraph 339(c). Through its online payment vendor TPG, the Court provides the option to make payments in full, partial payments, or late payments, as required by Paragraphs
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336 and 339(d), and the Court accepts credit cards, money orders, and cash for payment of all court-related fines and fees, as required by Paragraph 339(e).
 Conducting ability-to-pay determinations in conjunction with imposing fines and fees. Pursuant to Paragraph 340, the City developed and implemented a policy to ensure that defendants are provided with appropriate ability-to-pay determinations. The Parties agreed to amend the language of Paragraph 341, and the Monitoring Team suspended review of this provision until further notice. In compliance with Paragraph 342, the City repealed all or parts of Ferguson Municipal Code § 13-60, § 13-63, § 13-70(2), and § 13-70(3), and has not imposed any additional charges, fines, fees, or costs in response to any alleged or found “Failure to Appear” violation, or any other violations previously imposed pursuant to the applicable provisions of these sections. Accordingly, the City is in substantial compliance with Paragraphs 340 and 342 of the Consent Decree. The Monitoring Team will reassess compliance with Paragraph 341 in the future.
 Ensuring appropriate alternative sentences, like community service, and the availability of payment plan options. The City is in substantial compliance with Paragraphs 344-345 of the Consent Decree. In compliance with these paragraphs, the Municipal Court provides for appropriate alternative sentences such as community service and payment plan options for satisfying fines, fees, and costs, and has developed and implemented corresponding policies. During court sessions, the Municipal Court consistently provides each defendant with a “Know Your Rights” form, explaining the right to make periodic payments, to present evidence of financial condition if unable to pay, and to request community service as an alternative.
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Currently, defendants who fail to fulfill payment or community service obligations in a timely manner are given additional time to comply. There is no threat of arrest unless the defendant fails to appear in court to request additional time. As of the September 2018 audit period, a defendant who misses a payment or community service obligation would be summoned into court through the Show Cause process. After two consecutive missed appearances, an arrest warrant issues for the underlying offense rather than for the obsolete charge of FTA. These procedures are outlined in appropriate policies made available to the public through the Municipal Court website.
 Implementing requirements for municipal arrest warrants to avoid using them as a means of collecting civil court debt. Both the Municipal Court summons and the Show Cause Notice explain the consequences of a defendant’s failure to appear. The City also successfully developed a written policy outlining the Show Cause process required by Paragraph 348 of the Consent Decree. In future audits, to determine whether substantial compliance with this provision has been achieved, the Monitoring Team will review a random sample of cases that have been placed in warrant status as well as cases where a Show Cause Notice was sent to the defendant.
 Ensuring individuals are not held in custody after arrest because they cannot afford the bond. Although Paragraphs 349 and 350 were not assessed during the Monitor’s audit, this section bears mention because bond is an important aspect of the reform of the Municipal Court. The Monitoring Team notes that although the City currently does not staff the municipal jail on a full-time basis, the City must nevertheless comply with the reformed bond policy as it relates to defendants held at facilities outside the City. The Monitor will assess compliance in this area during a future Court audit.
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 Ensuring lawful license suspensions and reinstatement procedures. Paragraphs 351 and 352 have not yet been audited. Although the Court Staff utilize uniform notations in the notes section of the Court’s online file system to indicate that the required notifications to the Missouri Department of Revenue have been sent when defendants fail to appear or pay outstanding fines in a timely manner, the Monitoring Team has been informed that this process will change once the state-mandated online court file system has been implemented. Accordingly, these provisions will be assessed at a later time.
 Implementing fair trial procedures. Pursuant to Paragraph 353 of the Consent Decree, the City drafted an order on trial procedures, the Municipal Court Judge signed and issued the order on August 16, 2017, and the order on trial procedures is available on the City’s website. The City also developed and implemented a trial procedures policy in coordination with DOJ and the Monitoring Team. The City has achieved substantial compliance with this measure.
 Collecting and reporting court data via electronic and online court systems. Paragraphs 354 and 355 have not yet been audited. However, the Monitoring Team draws attention to the fact that implementation of these provisions will be affected by the statemandated online court file system, which is not yet in effect. Accordingly, like Paragraphs 351 and 352 listed above, these provisions will be assessed at a later time. With respect to Paragraph 356, the City published to the website all OSCA reports from June 2017 through July 2018 and is therefore in substantial compliance with this provision. In addition, the City has achieved substantial compliance with Paragraph 413 because all completed municipal court policies and protocols are available on the website; to remain in substantial compliance with this provision, the City should continue to post municipal court policies and protocols as they are completed.
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 Ensuring the independence of the Municipal Court from the City Prosecutor. Pursuant to Paragraph 357, the City implemented procedures to ensure compliance with substantially all of the requirements related to the independence of the City Prosecutor. However, the City is in only partial compliance because as of the September 2018 audit, the City Prosecutor had not fully transitioned to maintaining separate court files from those of the Municipal Court.
 Ensuring the impartiality of the Municipal Judge. Consistent with the requirement to ensure the impartiality of the Municipal Court Judge required by Paragraph 358 of the Consent Decree, the City enacted revisions to Ferguson Municipal Code § 13-26 by Ordinance Number 2016-3608, § 1, adopted February 23, 2016. As part of the September 2018 audit, the City submitted an annual report of compliance, showing that the Municipal Judge, Judge Terry Brown, was current on the ethical training required by the state of Missouri.
 Ensuring appropriate accommodations for defendants with mental illness or intellectual or developmental disabilities. The Parties have discussed Paragraph 359 of the Consent Decree and the Monitoring Team will audit this provision once a policy has been developed to address this requirement.
 Miscellaneous provisions designed to ensure that Municipal Code Enforcement is driven by public safety. Pursuant to Paragraph 324 of the Consent Decree, the City achieved full compliance with the 12.5% cap on revenue from municipal fines and fees, consistent with the mandate of Mo. Rev. Stat. § 479.350. The City of Ferguson Annual Operating Budget for 2018-2019 reflected Revenues of $292,200 for Fines and Public Safety, with total revenues of $20,313,946. Therefore, the City remained in full compliance with this provision where
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municipal fines and fees represented less than 1.5% of total revenues for the September 2018 audit period.
As required by Paragraph 325, the City removed the Municipal Court from the oversight of the City Finance Director within 60 days of the effective date of the Consent Decree. Additionally, the Missouri Supreme Court issued an order, effective July 1, 2017, directing the presiding judge of the St. Louis County Circuit Court to supervise the Municipal Court. The Municipal Court is required by Missouri Law to report directly to the St. Louis County Circuit Court and Missouri Supreme Court.
5. Municipal Court Audit Conclusions While there are several court-related provisions of the Consent Decree that remain to be completed, the City has implemented many significant changes to the Ferguson Municipal Court as required by the Consent Decree. The Monitoring Team will continue to assess the City’s efforts to maintain its current achievements and advance its progress on unfinished provisions related to the Municipal Court. G. Accountability During the reporting period, the City posted policies and guidelines relating to complaint intake and investigations, including the Community-Police Mediation Process, Community Mediation Services of St. Louis Agreement to Mediate, Internal Investigations, Professional Standards and Internal Investigations Disciplinary Guidelines, and Non-Disciplinary Responses to Minor Violations, to its website for public comment from February 27, 2019 through March 31, 2019.12
12 The City also revised its civilian complaint form, but did not originally include it in the suite of accountability policies made available for public comment. This form has since been posted on the City’s website.
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During the next reporting period, the Parties will consider, and incorporate where appropriate, the commentary received from the community with respect to these policies, and submit the revised policies to the Monitoring Team for final approval. The City should also prioritize roll call and in-service training on these policies. During the next reporting period, the Monitoring Team will also complete a Pre-Baseline Review pertaining to the City’s internal investigations.
H. School Resource Officer Program As stated in the Fall 2018 status report, the City, working together with the DOJ, continues to develop the School Resource Officer Program Operations Manual (“SRO Manual”), which should be developed in consultation with FFSD faculty and staff, the Youth Advisory Board, and other FFSD stakeholders. During the next reporting period, the Parties will conduct public forums regarding this manual, incorporate feedback received from those forums into a revised manual, and submit the draft SRO Manual to the Monitoring Team for review and approval. I. Body-Worn and In-Car Cameras During the reporting period, the City posted draft body-worn and in-car camera policies to its website from December 21, 2018 through January 31, 2019, and began reviewing and incorporating community feedback into the initial draft policies. Once this process is complete, the Parties will submit the revised policies to the Monitoring Team for final approval. In the next six months, the City should begin implementation of these policies by initiating and completing roll call trainings and initiating its in-service training program with respect to these policies.
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J. First Amendment Protected Activity During the reporting period, the Parties initiated policy development in the area of First Amendment protected activity. Most recently, they held public policy forums in June 2019. These policy forums allowed the Ferguson community to engage with, share perspectives on, and discuss the City’s policies as they relate to First Amendment protected activities. Following the public forums, the Parties will incorporate feedback from the community into the draft policies as appropriate. The Parties will continue to work toward completion of policy development during the next reporting period. K. Data Collection By the end of Year Three, the City is expected to provide the Monitoring Team with a worksheet identifying each provision of the Consent Decree that requires data collection, and analyzing whether the required data is currently tracked by the FPD, and if so, where that data is stored, and if not, how it will be collected and where it will be stored in the future. See Dkt. No. 100-1 at 27. In the Fall 2018 Status Report, the Monitor recommended that FPD designate a data collection coordinator or manager with the required expertise (e.g. in analytical methods, information technology, or software systems) to assist in this project. Because it has not identified a data collection coordinator, the City has relied on FPD employees—who already spend considerable effort on policy development and training—to develop its comprehensive data collection plan. The City did not meet the Workplan’s deadline for completion of this worksheet, and the City’s progress in this area remains slow as significant work must still be completed to identify the City’s gaps in data collection as well as how and where data will be
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collected and stored. Given the pace of implementation in this area, substantial compliance with the Consent Decree’s data-related provisions by Year Five appears unlikely. III. CONCLUSION
The Monitoring Team is pleased that policy development has resulted in the finalization or near finalization of policies in various subject areas, including use of force, body-worn and in-car cameras, and accountability. It appears that the City is on track to roll out these, as well as other policies, during the next reporting period, with dedicated effort to ensure roll call training is developed and implemented. With respect to community policing and engagement, training development, and data collection, progress continues to be sluggish. These areas require concrete steps from the City to ensure that timely progress is made.
Furthermore, a number of vacancies with respect to City personnel have compounded difficulties in these areas. The City has been faced with hiring for the positions of Chief of Police, City Manager, Municipal Court Judge, Municipal Court Clerk, and Consent Decree Coordinator. Each of these roles carries out responsibilities that are integral to the Consent Decree’s implementation, and the failure to have these roles filled will result in continued delays. It should also identify someone with the requisite expertise—and who is not on the Training Committee or otherwise already deeply involved in implementation efforts—to assist FPD and FMC with data collection.
In spite of these vacancies, FPD, under the leadership of Interim Chief McCall, and FMC, with the dedication of the former municipal court judge and clerk, Ms. Lanfersieck, have driven forward progress. The Monitoring Team applauds these efforts as much of the progress completed to date can be credited to their hard work and commitment to the implementation process. It is the Monitor’s hope that by filling the positions referenced
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above, the individuals at FPD and FMC working diligently to achieve substantial compliance with the Consent Decree will receive the support and resources needed to be successful. The Monitoring Team looks forward to continuing to work collaboratively with the City to achieve the stated goals of the Consent Decree.

Date: June 28, 2019

Respectfully submitted,
/s/ Natashia Tidwell Natashia Tidwell Hogan Lovells US LLP 100 High Street 20th Floor Boston, MA 02110 617-371-1076 natashia.tidwell@hoganlovells.com

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Case: 4:16-cv-00180-CDP Doc. #: 118 Filed: 06/28/19 Page: 38 of 38 PageID #: 2236 CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that the foregoing was filed electronically on June 28, 2019 with the Clerk of the Court for the United States District Court for the Eastern District of Missouri, and was served by ECF notice by operation of the Court’s electronic filing system.
/s/ Natashia Tidwell
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Case: 4:16-cv-00180-CDP Doc. #: 118-1 Filed: 06/28/19 Page: 1 of 20 PageID #: 2237 Appendices to the Independent Monitor’s Spring 2019 Report United States v. The City of Ferguson Case No. 4:16-cv-180
APPENDIX A
A Summary of the City’s Compliance with the Year Three Workplan During the Reporting Period
The following chart reflects the status of the City’s compliance with the Year Three Workplan during the reporting period. Specifically, it assesses whether Year Three stated goals were complete, incomplete, in progress, or in need of prioritization as of March 31, 2019, the last day of the reporting period. For tasks required to be completed by March 31, 2019, “complete” indicates that the City has achieved the relevant milestone, while “incomplete” signifies that the City did not meet the stated completion date and must work to do so as soon as possible. The City was not obligated to meet deadlines with stated completion dates after March 31, 2019. However, where the City has already commenced work on tasks that must be completed during the next reporting period, the Monitoring Team notes that the relevant task is “in progress.” On the other hand, where it appears that the City made little or no progress on a specific task, and that the lack of progress may thwart the City’s ultimate ability to meet the stated deadline during the next reporting period, the Monitoring Team highlights this as an area “to prioritize.” The Monitoring Team recommends that the City make a significant, concerted effort to address “incomplete” and “to prioritize” tasks during the next reporting period. Information about whether the City met the deadlines for tasks with stated completion dates between April 1, 2019 and September 30, 2019 will be contained in the Monitor’s Fall 2019 Status Report.
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Appendices to the Independent Monitor’s Spring 2019 Report United States v. The City of Ferguson Case No. 4:16-cv-180

CD ¶

YEAR THREE: August 2018 - July 2019

Phase I

Phase II

Phase III

Spring 2019 Status Update

COMMUNITY POLICING & ENGAGEMENT

City to host and participate in group

City to select Neutral

structured dialogues, arranged and led by Facilitator.

19

a qualified neutral facilitator, between police officers and community members and groups, with an emphasis on

Completion date: 12/31/2018

community members and groups who

previously have not had strong or

positive relationships with FPD or the

City.

Develop plan for structured dialogues and submit to MT (Stewart & Parish).
Completion date: 01/31/2019

Begin first series of structured dialogues.
Completion date: 04/31/2019

Phase I: Complete Phase II: Incomplete Phase III: To Prioritize

City and FPD to develop a community- Designate Community Develop Community

Public Comment

Phase I: Complete

engagement plan in consultation with the Outreach Coordinator. Engagement Plan (and Period for

Phase II: In Progress

20

Neighborhood Policing Steering Committee ("NPSC"), the Civilian Review Board ("CRB"), individuals and

Completion date: 12/31/2018

Crime Prevention Plan if needed) and submit to MT (Stewart & Parish).

Community

Phase III: To Prioritize

Engagement Plan and

roll call/training

groups within Ferguson, and community stakeholders who can provide unique perspectives and assistance, such as local colleges and universities.

Completion date: 04/30/2019

briefing.
Completion date: 07/31/2019

City, in consultation with FPD and the Develop Policy for

Public Comment Period

NPSC, to develop and implement policies Responding to NPSC for NPSC

to receive, consider, respond to, and act Recommendations and Recommendations Policy

23

upon NPSC recommendations in a fully submit to MT (Stewart transparent and timely manner. The City & Parish).

and roll call training/briefing.

will designate a City employee to provide administrative support necessary for the NPSC to perform its advisory function.

Completion date: 04/30/2019

Completion date: 07/31/2019

Phase I: In Progress Phase II: In Progress

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Appendices to the Independent Monitor’s Spring 2019 Report United States v. The City of Ferguson Case No. 4:16-cv-180

CD ¶

YEAR THREE: August 2018 - July 2019

Phase I

Phase II

Phase III

Spring 2019 Status Update

The City to assist with the establishment Establish Neighborhood

of a Neighborhood Association in each of Associations in

25 Ferguson’s apartment complexes.

Apartment Complexes.

Completion date: 04/30/2019

Phase I: To Prioritize

City to develop an FPD crime-prevention Finalize CP policy and Public Comment Period Incorporate into In- Phase I: Complete

plan and community-policing plan to

submit to MT (Stewart). for Community Policing Service Training

Phase II: Incomplete

ensure that policing is oriented around 26 community priorities and partnerships

COMPLETE

and based on problem-solving principles.

Policy and roll call training/briefing.
Completion date:

Plan.
Completion date: 04/30/2019 (and

Phase III: To Prioritize

01/31/2019

annually thereafter)

FPD to develop and implement

Develop Neighborhood Public Comment Period

Ferguson’s “Neighborhood Policing Plan: Policing Plan and

for Neighborhood

A Police Community Partnership." 27

submit to MT Stewart & Policing Plan and roll call

Parish.

training/briefing.

Completion date: 04/30/2019

Completion date: 07/31/2019

Phase I: In Progress Phase II: To Prioritize

FPD to develop strategies for working Develop schedule of

with community to address crime trends, monthly command staff

policing complaints, neighborhood

CP/Crime analysis

28 quality of life and working with community.

meetings and submit to MT (Stewart & Parish).

Completion date: 03/31/2019

Phase I: Incomplete

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CD ¶

YEAR THREE: August 2018 - July 2019

Phase I

Phase II

29-30; 256258

The City will develop and implement a staffing plan that enables close and effective supervision and will revise its current shift sequences and deployment to better support a community-oriented approach to policing and will post officer patrol area assignments on FPD website.

Develop Shift Schedule/Deployment Plan and submit to MT (Stewart & Tidwell).
Completion date: 03/31/2019

33, 34

City to affiliate with the Community Mediation Services of St. Louis and to develop a plan for providing neighborhood mediations that promote lasting resolutions of appropriately selected disputes among community members, while reducing the need for involvement in the criminal justice system. The City will also affiliate with the Community Mediation Services of St. Louis to provide a community-centered mediation program to act as an alternative to the misconduct investigation process for certain civilian allegations of officer misconduct.

City, DOJ, and MT (Parish) to begin planning meetings.
Completion date: 03/01/2019

Finalize Neighborhood Mediation Plan.
Completion date: 07/31/2019

Phase III

Spring 2019 Status Update
Phase I: Incomplete

Phase I: Incomplete Phase II: In Progress

REFORM OF THE FERGUSON MUNICIPAL CODE
City to develop and implement plan for Finalize plan for comprehensive reassessment and revision Reassessment and 40 of remaining Code provisions to ensure Revision of Municipal they are consistent with U.S. Constitution Code and submit to MT and other laws and provide clear and

Phase I: In Progress

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Appendices to the Independent Monitor’s Spring 2019 Report United States v. The City of Ferguson Case No. 4:16-cv-180

CD ¶

YEAR THREE: August 2018 - July 2019

appropriate guidance to public and law enforcement officers.

Phase I
(Aghedo & Tidwell). Completion date: 06/30/2019

Phase II

POLICIES & TRAINING

City to review policies and procedures City to review policies

within one year of implementation to

implemented in Year

ensure they provide effective direction to One and Two and

45 FPD personnel and remain consistent

identify deficiencies.

with Agreement.

Completion date:

06/30/2019

The City agrees to maintain a complete, City to complete

up-to-date manual of all FPD policies and renumbering of Policies

procedures that is organized and

(ongoing).

maintained in a manner that makes it

easily accessible and clear to officers,

employees, and others. Officers and

46

employees will have access to the manual in hard copy form, and in a readily usable

electronic format (e.g., through an FPD

intranet system accessible within the

mobile data computers of FPD officers).

Revisions and updates to FPD policies

and procedures will be incorporated into

the manual.

49-51 FPD to establish a Training Committee, Establish Training

Develop Training

develop schedule for delivering all

Committee and submit Schedule and submit to

Phase III

Spring 2019 Status Update

Phase I: In Progress Phase I: In Progress

Submit training plan Phase I: Complete

to MT (Stewart &

Phase II: Incomplete

5

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CD ¶

YEAR THREE: August 2018 - July 2019
training required in Agreement, and develop a written Training Plan for supplementing FDP recruits' academy training; enhancing FPD's field training, and implement comprehensive in-service training.

Phase I
names to MT (Tidwell). Completion date: 12/31/2018

Phase II
MT (Stewart & Tidwell). Completion date: 02/28/2019

Phase III
Tidwell). Completion date: 05/31/2019

Spring 2019 Status Update
Phase III: To Prioritize

BIAS-FREE POLICE AND COURT PRACTICES

65-71

The City to provide clear policy, training, and supervisory direction on prohibited conduct, including selective enforcement activities or decisions, non-enforcement of the law, and the selection or rejection of particular tactics and strategies based upon stereotypes or bias. The City's policies shall take into account influences of implicit bias, stereotype threat, and gender bias on officer enforcement decisions, use of force, and other police and court activity.

Parties to conduct public forums and initiate development of policies on Bias-Free Police & Court Practices
Completion date: Spring 2019

City to provide Monitoring Team with draft policy (Norwood).
Completion date: 07/31/2019

FPD police and court employees will

Parties to conduct public Develop policies to

provide timely and meaningful access to forums and initiate

address access for LEP

police and court services to all. City will development of policies individuals and submit to

67 develop and implement policies and

that address access for MT (Norwood).

training to ensure timely and meaningful LEP individuals.

police services to LEP individuals.

Completion date:

Completion date: 07/31/2019

Spring 2019

Phase I: In Progress Phase II: In Progress
Phase I: To Prioritize Phase II: To Prioritize

6

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CD ¶

YEAR THREE: August 2018 - July 2019

Phase I

Phase II

Phase III

Spring 2019 Status Update

VOLUNTARY CONTACTS, STOPS, SEARCHES, CITATIONS, AND ARRESTS

The City agrees to ensure that all FPD City to review its entire

voluntary encounters, investigatory stops body of existing policies

and detentions, searches, citations, and to ensure requirements

arrests are conducted in accordance with of Consent Decree in

the rights, privileges, and immunities

this area are met and,

secured or protected by the Constitution where necessary, rescind

and the laws of the United States. FPD and revise.

75

will ensure that these police activities are part of an effective overall crime prevention strategy; are consistent with

Ongoing through Year Four

community priorities for enforcement;

build trust between FPD and the

community; and are adequately

documented for tracking and supervision

purposes.

76-82

The City to provide clear direction with respect to policies related to voluntary contacts and investigatory detentions in accordance with the requirements of the Consent Decree.

Develop Investigatory Detentions policy and revised Field Interview Report and submit to MT (Stewart & Tidwell).
Completion date: 01/31/2019

Public Comment Period for Investigatory Detentions policy and Field Interview Report and roll call training/briefing.
Completion date: Spring 2019

The City to provide clear direction with 83-89 respect to policies related to searches
with or without a warrant in accordance

Develop umbrella Search policy and submit to MT (Stewart

Public Comment Period for umbrella Search policy and roll call

Phase I: In Progress
Phase I: Complete Phase II: In Progress
Phase I: Complete Phase II: In Progress

7

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CD ¶

YEAR THREE: August 2018 - July 2019

with the requirements of the Consent Decree.

90-95

The City to provide clear direction with respect to policies related to issuing citations and conducting warrantless arrests in accordance with the requirements of the Consent Decree.

Phase I

Phase II

& Tidwell).
Completion date: 01/31/2019

training/briefing.
Completion date: Spring 2019

Develop Power of Arrest and Detentions policy and submit to MT (Stewart & Tidwell).

Public Comment Period for Power of Arrest and Detentions policy and roll call training/briefing.

Completion date: 01/31/2019

Completion date: Spring 2019

Phase III

Spring 2019 Status Update
Phase I: Complete Phase II: In Progress

FIRST AMENDMENT PROTECTED ACTIVITY

Parties acknowledge that First

Parties to conduct public Develop draft policies on

Amendment protected activities serve

forums and initiate

FPD officer response to

important societal functions, including development of policies First Amendment

promoting transparency in government on FPD officer response Protected Activity and

110

affairs, ensuring accountability of public officials, and encouraging community

to First Amendment Protected Activity.

submit to MT (Parish & Stewart).

feedback -- whether critical or laudatory - that ultimately reduce tension and foster a sense of openness and trust between

Completion date: Spring 2019

Completion date: Summer 2019

law enforcement and the public.

Phase I: In Progress Phase II: In Progress

FORCE

The City will ensure that its use-of-force Draft umbrella Use of

128- policies, training, supervision, and

Force and Weapon-

170 accountability systems are designed to Specific policies and

ensure that FPD officers use force in

submit for Public

Conduct roll call training/briefing on Use of Force Policies.

Incorporate into In- Phase I: Complete Service & Supervisor Phase II: In Progress Training Programs. Phase III: To Prioritize

8

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CD ¶

YEAR THREE: August 2018 - July 2019

accordance with the Constitution and other laws, FPD policy, and the Consent Decree. City to develop policies pertaining to general use-of-force and weapon-specific requirements.

Phase I
Comment. COMPLETE

Phase II
Completion date: 1/31/2019

FPD to develop and implement

Draft Use of Force

Conduct roll call

comprehensive process for reporting and Reporting &

training/briefing on Use

investigating all FPD officer uses of 172- force. 194

Investigations Policy and revised Use of Force report and submit for Public Comment.

of Force Reporting & Investigations Policy.
Completion date: 1/31/2019

COMPLETE

Phase III
Completion date: 04/31/2019 (and annually thereafter)

Spring 2019 Status Update

Incorporate into In- Phase I: Complete Service & Supervisor Phase II: In Progress Training Programs. Phase III: To Prioritize
Completion date: 04/30/2019 (and annually thereafter).

CRISIS INTERVENTION

FPD will implement a Crisis Intervention Designate a Crisis

Team (CIT) first-responder model of

Intervention

197- police-based crisis intervention with

Coordinator.

206 community, health care, and advocacy partnerships.

COMPLETE

Initiate development of Crisis Intervention program and host policy forums.
Completion date: Summer 2019

SCHOOL RESOURCE OFFICER PROGRAM

Phase I: Complete Phase II: To Prioritize

Monitor to develop an SRO program and Parties to conduct public Submit draft SRO

operations manual that clearly defines the forums and initiate 210 role of each SRO and promotes the role development of SRO
of SRO as one of educator, counselor, Operations Manual. mentor, and law enforcement problem-

Manual to MT (Tidwell).
Completion date: Summer 2019

Phase I: In Progress Phase II: In Progress

9

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CD ¶

YEAR THREE: August 2018 - July 2019

solver, consistent with best practices.

Phase I
Completion date: Spring 2019

FPD will review and make a good faith Finalize and implement

effort to amend its Memorandum of

MOU.

Understanding (MOU) with FFSD, to delineate authority and specify

COMPLETE

procedures for law enforcement

interactions with students while on school

grounds, consistent with this Agreement.

211 Before providing SRO services at any

school in which FPD is not currently

engaged, the City will enter into an MOU

with the appropriate school district

consistent with the Consent Decree.

Further, any subsequent MOU with

FFSD shall be consistent with the

Consent Decree.

Phase II

Phase III

Spring 2019 Status Update

Phase I: Complete

BODY-WORN AND IN-CAR CAMERAS

In an effort to bring continued

Finalize BWC and ICC Public Comment Period

transparency regarding police activities; policies including

for BWC and ICC

improve the effectiveness and reliability footage sharing

policies and roll call

of use-of-force and misconduct

provisions and submit to training/briefing.

228- investigations; enhance supervision of MT (Goodrich).

250

FPD stops, searches, and arrests; and provide material for officer training, the City will equip FPD officers with body-

Completion date: 12/15/2018

Completion date: 2/28/2019

worn and in-car cameras, and will ensure

that such devices are used consistent with

Phase I: Complete Phase II: In Progress

10

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CD ¶

YEAR THREE: August 2018 - July 2019

law and policy. All aspects of FPD's use of body-worn and in-car cameras will be designed and implemented to promote transparency, provide learning opportunities to officers, and increase officer safety, while ensuring officer accountability and respect for individual privacy rights.

Phase I

Phase II

Phase III

Spring 2019 Status Update

SUPERVISION

The City agrees to ensure that all FPD City to review its entire

voluntary encounters, investigatory stops body of existing 4th

and detentions, searches, citations, and Amendment-related

arrests are conducted in accordance with policies to ensure

the rights, privileges, and immunities

requirements of Consent

secured or protected by the Constitution Decree in this area are

75, and the laws of the United States. FPD met with regards to the

99- will ensure that these police activities are role of supervisors and,

108 part of an effective overall crime

where necessary, rescind

prevention strategy; are consistent with and revise.

community priorities for enforcement; build trust between FPD and the community; and are adequately

Ongoing through Year Four

documented for tracking and supervision

purposes.

The City will develop and implement a 256- staffing plan that enables close and 258 effective supervision and will revise its
current shift sequences and deployment

Develop Shift Schedule/Deployment Plan and submit to MT (Stewart & Tidwell).

Phase I: In Progress Phase I: Incomplete

11

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CD ¶

YEAR THREE: August 2018 - July 2019
to better support a community-oriented approach to policing and will post officer patrol area assignments on FPD website.

Phase I
Completion date: 03/31/2019

Phase II

City to develop and implement

Develop Curriculum for Begin Supervisor

supervisory training course for all new Supervisor Training

Training Program.

317

and current supervisors to carry out all supervisory duties established in policy and this Agreement, and provide specific instruction on methods for ensuring supervisory duties are fulfilled.

Program and submit to MT (Stewart).
Completion date: 04/30/2019

Completion date: 06/30/2019

RECRUITMENT

City will develop, with Neighborhood Finalize Recruitment Roll call training/briefing.

Policing Steering Committee, a written 281- Recruitment Plan that includes clear 285 goals, objectives, and action steps for

Plan including salary study and submit to MT (Parish & Tidwell).

Completion date: 2/28/2019

attracting and retaining a high-quality and diverse work force.

Completion date: 12/31/2018

MUNICIPAL COURT REFORM1

Phase III

Spring 2019 Status Update
Phase I: To Prioritize Phase II: To Prioritize
Phase I: Incomplete Phase II: Incomplete

1 Detailed information regarding the status of reform of the Ferguson Municipal Court is contained in Appendix B. 12

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CD ¶

YEAR THREE: August 2018 - July 2019

Phase I

Phase II

Phase III

Spring 2019 Status Update

ACCOUNTABILITY

Holding public servants accountable

Finalize Disciplinary Public Comment Period

when they violate law or policy is

Matrix and Citizen

for Disciplinary Matrix

essential to ensuring legitimacy of

Complaint Form and

and Citizen Complaint

governance and community confidence. submit to MT (Tidwell). form and roll call

Well-functioning accountability systems also promote employee safety and morale. The City will review applicable policies and personnel regulations to

Completion date: 12/31/2018

training/briefing.
Completion date: 04/30/2019

361- ensure incorporation of these

368 accountability principles. Any violation

of the personnel rules and regulations,

including of provisions relating to the

principles of accountability, shall be

subject to appropriate discipline, up to

and including termination. These policies

shall include a Duty to Report

Misconduct; Duty of Candor; and

Internal Investigations.

399 400

City to provide and provide appropriate resources for community-centered mediation program to act as an alternative to misconduct investigation process.

Develop CommunityCentered Mediation Program and submit to MT (Tidwell).
Completion date: 12/31/2018

Public Comment Period for Mediation Program policy and roll call training/briefing.
Completion date: 04/30/2019

Incorporate into InService and Supervisor Training Programs.
Completion date: 06/30/2019 (and annually thereafter)

Phase I: Complete Phase II: In Progress Phase III: In Progress

Phase I: Complete Phase II: In Progress

13

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CD ¶

YEAR THREE: August 2018 - July 2019

Phase I

Phase II

Phase III

Spring 2019 Status Update

CIVILIAN OVERSIGHT

405(d)

CRB will develop and recommend a program to promote awareness throughout the broader Ferguson community about the options available for filing misconduct complaints, and about the misconduct complaint process.

Within 60 days of implementation of Complaint Mediation Program City will develop awareness program and submit to MT.
Completion date: Winter 2019

Phase I: In Progress

DATA COLLECTION

To ensure that collected data is complete, Identify a data collection In consultation with DOJ, In consultation with Phase I: Incomplete

accurate, and reliable, the City agrees to work with the Monitor to develop and implement a cost-feasible data collection plan and related protocols, to be approved

coordinator.
Completion data: 12/31/2018

City will complete and provide to the MT (Goodrich) a worksheet identifying, for the

DOJ, City will complete and provide to the MT (Goodrich) a worksheet

Phase II: Incomplete Phase III: To Prioritize

by the Monitor and DOJ.

provisions pertaining to identifying for all

Use of Force, Stop,

remaining CD

412

Search, Arrest, and

provisions, the data it

Citations, and Bias-Free currently collects,

Policing, the data it

that which the CD

currently collects, that requires, and where

which the CD requires, and how such data is

and where and how such tracked or will be

data is tracked or will be tracked in the future.

tracked in the future.

Completion date:

14

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CD ¶

YEAR THREE: August 2018 - July 2019

Phase I

Phase II
Completion date: 03/30/2019

The City will make publicly available on Ongoing as policies are Ongoing as policies are

request and on the City’s website all FPD implemented.

implemented.

and municipal court policies and

protocols, as well as all public reports

413 described in the Consent Decree. Any

exceptions will be limited to information

that must remain confidential to protect

public safety and approved by DOJ and

the Monitor.

Phase III 06/30/2019
Ongoing as policies are implemented.

Spring 2019 Status Update
Phase I: In Progress

15

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APPENDIX B
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SUMMARY OF AUDIT FINDINGS & STATUS OF MUNICIPAL COURT REFORM

Consent Decree

Audit Procedure

Status2

¶ 324: Ensure cap on revenue from Document Review: City budget and

municipal fines and fees

financial records

Substantial Compliance

¶ 325: Remove municipal court from Observation of Municipal Court

oversight of City Finance Director

Operations and review of city budget

Substantial Compliance

¶ 326: Implement Comprehensive Amnesty Program for cases without a disposition initiated before January 1, 2014, and repeal all or parts of Ferguson Municipal Code §13-60, §13-63, §13-70(2) and (3), and §4450

City Ordinance Review; Database Review of pending and closed cases; Municipal Court Case File Review of pending and closed cases; Observation of Municipal Court Operations

¶ 326(a) – Partial Compliance ¶ 326(b) – Substantial Compliance ¶ 326(c) – Substantial Compliance ¶ 326(d) – Substantial Compliance

¶ 327: Implement Comprehensive Amnesty Program, eliminate charges, and cancel warrants for cases without a disposition initiated before January 1, 2014

Database Review of pending and closed cases; Municipal Court Case File Review of pending and closed cases; Observation of Municipal Court Operations

Partial Compliance

¶ 329: Increase transparency of court Website Review and Alternate

operations

Means

Partial Compliance

¶ 330: Develop and implement plan for public education campaign about None for Audit Period municipal court

Not Assessed

¶ 331: Make information available regarding cost-free legal assistance

None for Audit Period

Not Assessed

¶ 333: Provide clear information regarding rights and responsibilities

Document Review of Citation and Supplemental Form; Website Review

Substantial Compliance

¶ 334: Monthly audits of citations to ensure proper completion

None for Audit Period

Not Assessed

¶ 335: Maintain current contact information for individuals with pending cases

Document Review of “Updated Contact Information” form; Observation of Municipal Court Operations; Municipal Court Case

Substantial Compliance

2 For an explanation of each compliance grade, please see Section II(F)(1) of the Monitor’s Spring 2019 Status Report.

17

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File Review

¶ 336: Revise online payment system to allow late payments and payment Website Review plan installations

¶ 337: Online access to charging details and status for defendants

None for Audit Period

¶ 338: Ensure privacy protections for Document Review of Vendor Policy;

online court systems

Website Review

¶ 339: Eliminate unnecessary barriers to resolving cases

Document Review of draft policy; City Ordinance Review; Website Review; Observation of Municipal Court Operations

¶ 340: Provide appropriate ability-to- Website Review; Observation of

pay determinations

Municipal Court Operations

¶ 341: Maintain public list of preset fines, accounting for punitive nature, local income levels, and regional averages

Document Review of current fines and fees schedule; Website Review; Observation of Municipal Court Operations

¶ 342: No additional fines and fees for Failure to Appear or violations of repealed code provisions §13-60, §1363, §13-70(2), or §13-70(3).

City Ordinance Review; Database Review of pending and closed cases; Municipal Court Case File Review of pending and closed cases; Observation of Municipal Court Operations

¶ 344: Implement community service Observation of Municipal Court

as a sentence alternative

Operations

¶ 345: Provide options for court- Observation of Municipal Court

managed payment plans

Operations; Website Review

¶ 346: Appropriate debt collection for failure to complete community None for Audit Period service or payments in timely manner

¶ 348: Develop and implement policy to ensure arrest warrants are issued Website Review; Observation of only after exhausting measures to Municipal Court Operations secure defendant’s appearance

¶ 349: Ensure no custody based on None for Audit Period

Substantial Compliance Not Assessed
Partial Compliance Partial Compliance Substantial Compliance
Not Assessed
Substantial Compliance
Substantial Compliance Substantial Compliance
Not Assessed Partial Compliance
Not Assessed

18

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ability to pay monetary bond

¶ 350: Develop and implement plan eliminating use of fixed monetary bond schedule

Document Review of Court Order; Website Review

¶ 351: Reporting failure to appear or pay fines for moving traffic violation to Missouri Department of Revenue only to extent required by law

None for Audit Period

¶ 352: Provide compliance letters for suspended license based on Missouri Revised Statute §302.341.1 immediately following court appearance

None for Audit Period

¶ 353: Develop and implement trial Document Review of Draft Policy;

procedures ensuring fair and impartial Observation of Municipal Court

conduct of trial

Operations

¶ 354: Ensure online court systems allow collection of aggregate data for court data collection and reporting requirements

None for Audit Period

¶ 355: Ensure electronic records management system has appropriate controls to limit user access and ability to alter case records, and comports with applicable law

None for Audit Period

¶ 356: Provide timely and accurate reports to Missouri State Courts Administrator (MSCA) and make MSCA reports and other court data accessible to public

Website Review

¶ 357: Ensure municipal operates independently of Prosecutor

court City

Observation Operations

of

Municipal

Court

¶ 358: Ensure impartiality of Ordinance Review; Observation of

municipal court judge

Municipal Court Operations

¶ 359: Ensure appropriate accommodations for individuals with None for Audit Period mental, intellectual, or developmental

Not Assessed Not Assessed Not assessed Substantial Compliance Not Assessed Not Assessed
Substantial Compliance Partial Compliance
Substantial Compliance Not Assessed

19

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disabilities

¶ 360: Develop protocols for conducting cost-feasible, data-driven, and qualitative assessments of court practices

None for Audit Period

¶ 413: All municipal court policies and protocols available on website

Website Review

Not Assessed Substantial Compliance

20

 
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v.
THE CITY OF FERGUSON, Defendant.

)
) ) Case No. 4:16-cv-180
) ) Hon. Catherine D. Perry
)
)
)
)

INDEPENDENT MONITOR’S WINTER 2020 SEMIANNUAL REPORT

I. INTRODUCTION

Pursuant to Paragraph 438 of the Consent Decree entered into between the United States

Department of Justice (“DOJ”) and the City of Ferguson, Missouri (the “City”) (together, the

“Parties”), the Independent Monitor (the “Monitor” or the “Monitoring Team”) submits this

Winter 2020 Semiannual Report, which details the City’s progress during the reporting period of

April 1, 2019 through September 30, 2019 and highlights additional activities associated with the City’s implementation efforts through January 31, 2020.1

During Years One, Two, and Three, the City’s implementation efforts were punctuated with clear forward momentum in some areas and persistent barriers to progress in others.2 The

Monitoring Team is pleased that a strong working relationship endures between the City and the

1 In accordance with Paragraph 439 of the Consent Decree, the substance of this report has been agreed to by the Parties.
2 Throughout this report, each year of implementation is referred to as “Year One,” “Year Two,” “Year Three,” “Year Four,” and “Year Five.” The monitorship officially began on July 22, 2016, when the former Monitor was appointed by the Court. Accordingly, the implementation years are identified as follows: Year One: August 2016 - July 2017; Year Two: August 2017 - July 2018; Year Three: August 2018 - July 2019; Year Four: August 2019 - July 2020; and Year Five: August 2020 - July 2021.
1

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DOJ, particularly with respect to the development of core policies. Through a collaborative and iterative process with both the community and the DOJ, the City has developed initial draft policies in nearly all of the priority areas identified by the Parties during Year One. With respect to reform of the Ferguson Municipal Court (“FMC”), the City has developed and implemented most court-related provisions of the Consent Decree. Significantly, at the close of 2019, the City reported its near total compliance with the Consent Decree’s Comprehensive Amnesty Program (“CAP”).3 While a final audit of the CAP by the Monitoring Team has yet to be completed, compliance with the CAP would represent a significant achievement by the City as it required the review and assessment of thousands of cases by FMC staff as well as coordination with the DOJ, the Monitoring Team, and the City Prosecutor.
Other areas of the Consent Decree, including implementation of the community engagement, training, and data analytics provisions, have failed to progress year after year. Fortunately, at the close of Year Three, the City filled a number of key positions in order to address these delays. In July 2019, Jason Armstrong was sworn-in as the City’s new Police Chief. Courtney Herron, the FMC Administrator and Nicolle Barton, the Consent Decree Coordinator, were hired in September 2019. Ms. Herron stepped into her role in the Court swiftly, preparing and assisting with the Monitor’s Fall 2019 Court audit as well as with all other implementation efforts pertaining to the FMC. Ms. Barton has been instrumental in serving as a much needed liaison between the City, the DOJ, and the Monitoring Team as well as in tracking and coordinating the City’s implementation efforts. In the late fall of 2019, the City contracted with AH Datalytics, a data consulting firm which immediately began providing
3 A detailed review of the City’s compliance with the Comprehensive Amnesty Program, including the Monitor’s review and audit of the implemented program, will be contained in the Monitor’s next written report to the Court.
2

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data-related assistance to the City by conducting a “gap analysis” designed to measure the requirements of the Consent Decree against the City’s current data-collection capabilities. Because the hiring and onboarding of these individuals did not occur until the summer and fall of 2019, little progress beyond policy development was achieved during the reporting period.4 Although much work remains, these individuals, in combination with Assistant Chief Frank McCall, Captain Harry Dilworth, and Interim City Manager Jeffrey Blume, have worked quickly to turn what had become perpetual areas of impasse into opportunities for renewed momentum. In the short time since these individuals joined the City’s implementation efforts, the Monitor has observed a renewed focus on and energy around the Consent Decree, including a more strategic approach toward implementation, the development of internal processes that better ensure compliance with the Consent Decree, and, for the first time, consistent tracking by the City of implementation efforts and benchmarks outlined in the Monitor’s Workplan.
The Monitor hopes that this revitalized commitment to the Consent Decree will lead to substantial focus during Year Four on two areas that remained largely stagnant during Year Three: (1) the development of a comprehensive training program; and (2) implementation of community engagement and policing practices that are consistent with the overall aims of the Consent Decree. With respect to training, as the City completes policy development in new areas, it faces a backlog with respect to implementing those policies via roll call briefings and incorporating them into a robust and consistent in-service training program. The City should assess its roll call procedures and seek guidance from the DOJ and the Monitoring Team, as needed, with respect to how its procedures could be streamlined and/or implemented more
4 The “reporting period” ran from April 1, 2019 through September 30, 2019. The “next reporting period” refers to October 1, 2019 through March 30, 2020.
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efficiently. Furthermore, although the City completed an initial draft of a training plan in December 2019 (thanks to a tremendous effort by Assistant Chief McCall), much work remains with respect to finalizing this plan, including, for example, outlining the specific requirements of the Consent Decree and whether they are met by various training programs offered by the state of Missouri. The Monitor recommends that the City consider hiring a Training Consultant, with experience in creating such documents, to provide assistance with these processes, just as AH Datalytics has done with respect to data analytics. With both training and data, the City’s retention of an expert with concrete experience in specialized tasks for a concentrated period of time is likely to result in a more efficient and cost-effective path to substantial compliance. A robust training program and plan is essential to adequately training on finalized policies. These plans should be developed carefully and strategically and rolled-out on a timely basis in order to ensure that the City implements policies efficiently during Year Four.
Finally, as stated in the Monitor’s Fall 2018 Status Report, see Dkt. No. 100 at 7-8, and repeatedly thereafter, the Monitoring Team continues to believe that a community engagement and/or outreach coordinator is critical to not only achieving substantial compliance with the Consent Decree, but to achieving a sustainable, community-oriented approach to policing that fosters trust and transparency within Ferguson. The community engagement provisions of the Consent Decree must be approached holistically; they should be developed not only to meet the specific paragraphs of the decree, but also in consideration of the greater purpose and goals of the decree with respect to community relations. It will serve neither the City nor the community to approach this core aspect of the Consent Decree by simply checking off community engagement tasks paragraph-by-paragraph as though they exist independent of the remainder of the agreement. Community engagement remains a critical aspect of the decree and is one area
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that has not yet been adequately contemplated or resourced by the City. This must be addressed
and prioritized during Year Four.
A. The Monitoring Process
During the reporting period, and through January 31, 2020, the Monitoring Team
supported the City in its efforts to achieve substantial compliance and conducted reviews and
audits to determine compliance with both the Consent Decree and the Year Three Workplan. As
with prior status reports, this report details the City’s progress with respect to three critical
phases of compliance: (1) policy revision and review; (2) training and implementation; and (3)
auditing and compliance assessment.
1. Policy Revision and Review
The Parties continue to work collaboratively to execute the policy revision and review protocol as follows:5
i. Kick-off/Announcement of Policy Area: FPD notifies DOJ and the Monitor of its intent to begin drafting or revising policies in an identified subject area;
ii. Technical Assistance: The appropriate Subject Matter Expert on the Monitoring Team provides FPD and DOJ with technical assistance in the form of model policies and/or initial guidance as to best practices in the identified subject area;
iii. Gap Analysis: FPD and DOJ conduct an assessment or gap analysis of FPD’s current state of affairs (i.e., ascertain how FPD’s existing policies, practices, and systems differ from the Consent Decree’s requirements and best practices);
iv. Solicitation of Community Input: Several provisions of the Consent Decree require community involvement in the implementation of specific policies, including those designed to improve police/community relations. The Parties are committed to soliciting community feedback on other policies as well, even where not explicitly required by the Consent Decree. While the Parties continually evaluate the best means of involving community stakeholders in the policy development process, the Parties have found that policy forums are an effective means of inviting and obtaining community input.
5 The steps outlined in the process are not necessarily intended to be implemented sequentially. Rather, the Parties and the Monitoring Team determine the appropriate methodology on a case-by-case basis.
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v. Policy Revision: FPD and DOJ revise policies, practices, and systems in the target subject area to the extent required under the gap analysis;
vi. Return to Monitor/SME: Upon completion of a draft policy, the Parties submit the policy to the Monitor and/or appropriate Subject Matter Expert for review. The Subject Matter Expert will review the policy and either provide approval or arrange for a conference call to discuss additional revisions; and
vii. 30-Day Comment Period: Once the Monitoring Team has approved a draft policy, the City will email the policy to FPD officers from varying ranks and units. Officers will have a meaningful opportunity to review and comment on the new or revised policy or procedure during a 30-day period. At the same time, FPD will post the policy to the FPD website for review by the community. Community members will also have 30 days to provide comment on the draft policy or procedure. At the close of the 30-day period, the Parties will determine whether any modifications to the draft policy are appropriate. If modifications are made, the revised policy shall be submitted to the Monitor for review and final approval. After the Monitor has approved the final policy, officers will be provided roll call training and the finalized policy will be implemented and published. 2. Training and Implementation
Training is required in order to move policies out of development and into
implementation. Under the Consent Decree, training takes on two forms: first, roll call trainings
are delivered via lecture, PowerPoint, and/or short assessment; and second, in-service training is
provided to FPD personnel. Under the Year Three Workplan, the City was tasked with creating
a training schedule by February 28, 2019. See Dkt. No. 100-1 at 14. The City still has not
finalized a comprehensive training schedule. However, it did design and implement roll call
trainings on an ad hoc basis as accompanying policies were finalized. Specifically, during the
reporting period, under the leadership of Captain Dilworth, the City rolled-out a number of roll
call trainings pertaining to the suite of use of force policies.
In general, the City’s scheduling and execution of roll call trainings has been time
consuming and has resulted in a backlog of trainings that have yet to be completed despite the
fact that the accompanying policies were finalized during Year Three. To address this, the City
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should confer with the Training Committee and with the DOJ in order to design an approach to roll call trainings that allows for more expeditious development and roll-out and includes sergeants and other department personnel in the delivery of training. To the extent needed, the Monitoring Team is readily available to provide technical assistance as well.
With respect to in-service trainings, the City submitted an initial draft of a training plan to the DOJ and the Monitoring Team for review in December 2019. While this document represents a substantial effort and strong first draft, it does not yet reflect the robust training plan contemplated by the Consent Decree. Enhancing and finalizing a roll call and in-service training schedule and plan must be a priority for the City during the next reporting period. Further delays with respect to training will prevent timely implementation of finalized policies.
As stated previously, the Monitor recommends that the City hire a consultant to assist in this critical aspect of implementation. Continued reliance on sworn officers to develop highly technical plans, presentations, and curricula assessments—on top of their daily duties—all but ensures there will be persistent delays in the development and roll-out of a comprehensive training program.
3. Auditing and Assessing Compliance As previous reports have indicated, with the exception of the FMC, much of the implementation phase of the Consent Decree remains to be completed. The Monitoring Team conducted its fourth and fifth Municipal Court audits in March and November 2019. The details of those audits, as well as a complete assessment of the City’s compliance with the Comprehensive Amnesty Program, will be contained in a supplemental FMC Status Report to be published in early Spring 2020. The remaining subject areas did not enter the implementation stage during the reporting period. As noted above, the development of the
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training schedule and plan is essential for ensuring that Consent Decree subject areas enter the implementation stage on a timely basis. II. DETAILED STATUS UPDATE
The Monitor issued a Year Three Workplan as Appendix D to the Fall 2018 Status Report. See Dkt. 100-1 at 10-27. The Workplan provided benchmarks for the City’s achievement of both short and long term implementation goals. Many of the deadlines outlined in the Workplan were not achieved by the City. As a result, the Monitoring Team and Ms. Barton, the Consent Decree Coordinator, collaborated extensively before developing a Year Four Workplan. Together, they discussed how and when action items would and could realistically be achieved by the City. Based on those discussions, the Monitor developed a Year Four Workplan, attached hereto as Appendix A. The Year Four Workplan has been updated to reflect what the Monitor considers to be realistic and achievable goals during Year Four. In the future, if the City is determined to be “out of compliance” with a specific Workplan provision at the close of Year Four, the Monitoring Team requests that all Parties conference to discuss that provision and to support the City in developing a plan for achieving compliance as soon as possible with respect to that action item. Subsequent status reports will detail the agreed-upon schedule or procedure developed by the City to remedy the “out of compliance” measure. Where delays or missed deadlines occur as a result of circumstances beyond the City’s control, the Monitoring Team will detail those in its semiannual status report. This protocol, which promotes both transparency and accountability, is possible now that the City has invested in a Consent Decree Coordinator, a dedicated individual who can facilitate the implementation process and help guide the City in decisions regarding the allotment of resources and the prioritization of tasks in accordance with the Monitor’s Workplan.
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The remainder of this report details the status of implementation with respect to the six stated priority areas—community policing and engagement; bias-free police and court practices; stops, searches, citations, and arrests; use of force; recruitment; and accountability—as well as municipal court reform, the school resource officer program, body-worn and in-car camera policies, First Amendment protected activities, and data collection and analysis.
A. Community Policing and Engagement The Monitoring Team, once again, requests that the City prioritize community policing and engagement during the next reporting period. One of the most important areas of the Consent Decree continues to see little progress and attention. For this reason, the Monitoring Team strongly encourages FPD to develop a comprehensive plan for addressing all outstanding action items in the area of community policing and engagement. Where possible, a dedicated community engagement and/or outreach coordinator should be utilized to oversee implementation in this area. The appointment of Former Assistant Chief Al Eickhoff as community outreach coordinator, followed shortly by his departure from FPD, resulted in lost ground with respect to implementation of the community policing and engagement provisions of the Consent Decree during the reporting period. However, Assistant Chief McCall assumed the role thereafter and, with the addition of a Consent Decree Coordinator, the City has taken significant steps toward increasing attention to this area since September 2019. The Monitor commends Ms. Barton for beginning to develop a Community Engagement Plan and for working with Chief Armstrong and Benjamin Horwitz from AH Datalytics to identify ways in which data collection may be used to track community policing practices within FPD. Next, the City should seek to finalize the City’s Community and Neighborhood Policing Plans as well as the Community Engagement
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Plan and to complete development and implementation of its staffing, shift sequencing, and deployment plans in Year Four. Consent Decree (“CD”), ¶¶ 20, 26-27, 29-30. To facilitate this process, the City should develop and submit to the Monitor a schedule of monthly command staff meetings in which FPD discusses and analyzes significant crime trends, policing complaints, neighborhood quality of life issues, and community priorities for policing by the end of the reporting period. CD, ¶ 28. These plans are specifically intended to support a community-oriented approach to policing. See CD, ¶¶ 28, 29-30, 256-58.
The City reported that its policy for responding to NPSC recommendations remains in development. CD, ¶ 23. During the next reporting period, the NPSC should consult with the City as it works to finalize the Community Engagement Plan and the plan for responding to and acting upon NPSC recommendations. The Civilian Review Board (“CRB”) should also provide feedback and support during the development of the Community Engagement Plan.
1. Civilian Oversight As stated in the Monitor’s Spring 2019 Status Report, the City successfully filled longstanding vacancies on the CRB during the reporting period; however, as of January 2020, there is at least one position that remains vacant. The Monitoring Team appreciates the City’s efforts to fill these vacancies and to train new members on the role and responsibilities of the CRB, and hopes that the City will commit to continuing to fill all CRB vacancies in a timely manner. In December 2019, attorneys from the DOJ met with CRB members to discuss and answer outstanding questions regarding the board’s operations and practices. The Monitor notes the importance of Paragraph 407 of the Consent Decree, which requires the City to take any measure necessary to safeguard the CRB’s ability to perform its civilian oversight functions, including ensuring the CRB’s independence from FPD and the City. See also CD, ¶ 404
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(discussing eligibility to serve on the CRB). During the next reporting period, the Parties, and, to the extent needed, the Monitoring Team, will review the City’s compliance with these provisions of the Consent Decree.
Within sixty days of the City’s implementation of the misconduct complaint mediation program—which will serve as an alternative to the misconduct investigation process for certain civilian allegations of officer misconduct—the CRB should develop and recommend a program to promote awareness of the options available for filing and proceeding with misconduct complaints in Ferguson.
2. Community Dialogues & Mediations During the reporting period, the City made substantial progress toward launching its community dialogue and mediation programs. CD, ¶¶ 19, 32-34. The City formally selected Community Mediation Services of St. Louis (“CMS”) as the neutral facilitator who will facilitate small-group structured dialogues between police officers and community members and oversee the City’s community-centered mediation program and anticipates finalization of its contract with CMS in time for the program’s launch in March 2020. To that end, the City reported that it has already invited the NPSC and the Ferguson Youth Initiative to provide input regarding topics that would be both meaningful to the community and productive areas of discussion. The City should also seek to finalize its Neighborhood Mediation Plan during the reporting period.
3. Surveys Paragraphs 429 and 430 of the Consent Decree require the Monitoring Team to conduct annual surveys of members of the Ferguson community, including Ferguson residents, law enforcement personnel, and detained arrestees. In particular, the surveys are aimed at gathering information about (1) the community’s experiences with and perceptions of FPD, public safety,
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and the municipal court; and (2) police officers’ attitudes regarding their jobs and the Ferguson community.
In partnership with the National Police Foundation (“NPF”), the Monitoring Team launched a community survey from April 8 – September 17, 2019. The survey was available online at: www.tinyurl.com/FergusonMOsurvey. In addition, hardcopies of the survey were available at Ferguson City Hall, Ferguson Public Library, and the Urban League’s Ferguson location. During the survey period, the Monitoring Team held numerous community events intended to bolster community support for and interest in the survey, distributed flyers advertising the survey, and promoted the survey online. Despite these efforts, the 2019 community survey (“Survey 1”) had only 125 respondents. The NPF analyzed survey results and generated a report of Survey 1, attached hereto as Appendix B. According to the NPF’s analysis, the individuals who chose to take the survey do not reflect the entire demographic makeup of the community of Ferguson, with an overrepresentation of affluent, educated, white residents. For example, nearly half of all respondents live in Ward 2 and more than 75% of the respondents identify as white. App. B at 6-7. Although the results of Survey 1 are not representative of the Ferguson community at large, they are important in that they inform the Monitor’s understanding of community concerns, help establish a survey process that can be improved upon and repeated annually, and identify the underrepresented community groups to whom outreach should be directed during the roll-out of the 2020 Survey (“Survey 2”).
While the NPF’s analysis of the survey speaks for itself, the Monitor highlights a few key takeaways for the Court’s consideration. In general, the majority of respondents agreed that they trust FPD, have confidence in the department, would feel comfortable calling FPD if needed, and believe the agency would take complaints against officers seriously. Id. at 3. A
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majority of respondents who interacted with FPD over the past year reported that they were very satisfied with the way they were treated by the officer. Id. at 14. While respondents reported that the police do a good job of being available when needed, responding promptly to calls, and treating people fairly, they reported that FPD does a poor job of fighting crime, dealing with neighborhood problems, and being visible on the streets. Id. at 1. These findings suggest that although FPD appears to maintain transparency and trust among the survey respondents generally, there remains a real need for increased community engagement and community policing by FPD.
When asked open ended questions about FPD, a number of themes emerged, including a perceived negative impact of the Consent Decree on the department, such as a lack of enforcement of crime, shortage of officers, and a general lack of confidence in leadership. Id. at 5. More than 21% of respondents indicated that they felt the Consent Decree prevented FPD from adequately enforcing the law and doing its job. Id. Another 21% of respondents indicated they felt crime was increasing and that FPD was not enforcing traffic or other laws, and 29% indicated a belief that the police department was understaffed. Id. 7.8% of respondents also commented on leadership issues within the department. In over 13% of the open-ended responses, however, respondents had only positive things to say about FPD. Id. The Monitoring Team will use the results of Survey 1 to, among other things, assess baseline measures of public satisfaction with FPD and FMC, continue to engage in constructive conversations with residents, City personnel, and the DOJ, and inform the Parties’ approach to implementation.
The NPF also assisted with the roll-out of an officer survey during the reporting period. The officer survey, which was available to FPD officers in November and December 2019,
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measured the officers’ perceptions of FPD and the Ferguson community. Results from the officer survey will be shared with FPD officers during the next reporting period and will be published in the next semiannual status report.
4. Monitoring Team To further support the City in its implementation of community engagement provisions of the Consent Decree during Year Four, the Monitoring Team has engaged an additional subject matter expert, Dr. Leigh Anderson, to evaluate and audit the City’s compliance with provisions in this area. Dr. Anderson will work in combination with Steve Parish to: provide technical support to the City as it completes policy development; audit the City’s ongoing community policing and engagement efforts; and strengthen the administration of the Monitoring Team’s roll-out of Survey 2. Dr. Anderson has vast experience working with state and federal agencies in the area of public safety, and her knowledge of law enforcement and community-oriented policing practices will be a great asset to the Monitoring Team. Together, Mr. Parish and Dr. Anderson will work to not only support the City’s progress with respect to community policing and engagement, but to ensure structure and accountability for the City in this area during Year Four. B. Bias-Free Police & Court Practices The Parties developed an initial policy pertaining to fair and impartial policing and posted the draft policy to the City’s website for community input. During the next reporting period, the Parties should host any additional policy forums, including a proposed forum designed to solicit youth input in this area. The Parties should finalize this policy, inclusive of community and Monitor feedback, during Year Four.
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To further promote bias free policing and court practices, the Consent Decree requires that all FPD police and court employees provide timely and meaningful access to police and court services to all, including individuals who have a limited ability to speak, read, write or understand English (“LEP individuals”). CD, ¶ 67. During the reporting period, the City did not achieve any progress in this area. Accordingly, during the next reporting period, the City should prioritize development of a plan for initiating policy development. In particular, the City should, in collaboration with the DOJ, host public forums related to these policies by the close of Year Four.
C. Voluntary Contacts, Stops, Searches, Citations, and Arrests During the reporting period, the Parties completed policy development in the area of voluntary contacts, stops, searches, citations, and arrests. The initial suite of draft policies, inclusive of officer and community feedback, was submitted to the Monitoring Team for review. The Monitoring Team provided some suggested edits to the policies, which underwent final review and revision by the Parties. The Parties submitted this first suite of policies, including policies pertaining to stops, Miranda, search and seizure, and warrantless searches, for the Monitoring team’s approval in early January 2020. CD, ¶¶ 79-89. A second suite of policies, including policies pertaining to stop orders or “wanteds,” correctible citations, and the Fourth Amendment, generally, are in development. CD, ¶¶ 90-98. Policy development in this area should be complete and roll call trainings on the first suite of policies should be conducted in this area by the close of Year Four. D. Use Of Force During the reporting period, the City commenced roll call training on the suite of use of force policies—the first set of policies for which policy development was complete. Roll call
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training and post-training assessment has been completed with respect to use of force, firearms, electronic control weapons, less lethal shotgun ammunition, baton, oleoresin capsicum (“OC”) spray, canines, and vehicle pursuit. CD, ¶¶ 128-70. During the next reporting period, roll call training will be conducted with respect to use of force reporting, use of force response and investigation, the use of force review board, and critical incidents. CD, ¶¶ 172-94. All roll call trainings should be complete by the end of the next reporting period, and the City should commence use of force in-service training by the close of Year Four. Additionally, Paragraph 172 of the Consent Decree requires FPD to develop a comprehensive process for reporting and investigating all FPD officer uses of force. CD, ¶ 172. Accordingly, during Year Four, FPD officers must begin reporting, either electronically or in paper form, and supervisors should begin reviewing, all use of force data.
E. Recruitment The Parties completed a draft Recruitment Plan for attracting and retaining a highquality and diverse work force quite some time ago. Approval of this plan has been delayed as the City has not yet developed a method for complying with Paragraph 283(a) of the Consent Decree, which requires the City to offer salaries that will place FPD among the most competitive of similarly sized agencies in St. Louis County. The City has reported that a salary study is underway and is likely to be completed during the next reporting period. Accordingly, the Recruitment Plan should be finalized by the City during Year Four. Once complete, the provisions of the Recruitment Plan must be explained to rank and file members of FPD, with documentation of this training provided to the Monitoring Team. Upon implementation, the Monitoring Team will review job applications and background investigation files to assess compliance.
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F. Accountability During the reporting period, the Parties considered and incorporated community feedback regarding policies and guidelines relating to complaint intake and investigations, including the Community-Police Mediation Process, Community Mediation Services of St. Louis Agreement to Mediate, Internal Investigations, Professional Standards and Internal Investigations Disciplinary Guidelines, and Non-Disciplinary Responses to Minor Violations. These policies were submitted to the Monitoring Team, who approved them in their finalized forms. As a result, the accountability suite of policies represents the second set of policies for which policy development is complete. CD, ¶¶ 362-400. During the next reporting period, the City should begin roll call training on these policies. The Monitor also understands from the City that FPD plans to build out its Professional Standards Unit and to enlist a professional standards officer to enhance FPD’s implementation of policies in this area. G. School Resource Officer Program As stated in Court during the October 2, 2019 status conference, the Ferguson-Florissant School District has opted to engage another department for its School Resource Officer (“SRO”) Program during the 2019-2020 school year. Pursuant to Paragraph 459 of the Consent Decree, the Parties “may jointly agree to make changes, modifications, and amendments to this Agreement.” The Parties “may agree to suspend the current Agreement requirement for a time period agreed upon at the outset of the suspension.” Because FPD officers will not be participating in a SRO Program this year, or anytime in the foreseeable future, the Parties have agreed to suspend further implementation of the SRO provisions of the Consent Decree. The Monitor agrees with the Parties’ proposed suspension as it relates to Paragraphs 207-27 of the
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Consent Decree.6 At the beginning of Year Five, the Parties will reassess whether further suspension of implementation of these provisions is warranted.
H. Body-Worn and In-Car Cameras During the reporting period, the Parties reviewed and incorporated community feedback into the initial draft policies and submitted the revised policies to the Monitoring Team for final approval. The Monitoring Team provided a number of additional comments, which the Parties are reviewing and incorporating into the finalized policies. The suite of body-worn and in-car camera policies will be completed during the next reporting period. CD, ¶¶ 228-50. The City should begin implementation of these policies by initiating and completing roll call trainings and initiating its in-service training program with respect to these policies by the close of Year Four. I. First Amendment Protected Activity During the reporting period, the Parties continued to draft policies in the area of First Amendment protected activity by incorporating, where appropriate, feedback provided by the community during policy forums held during Year Three. Although policy development is not yet complete in this area, the City and the Monitoring Team took measures to ensure that First Amendment activity was protected during the anniversary events planned in August 2019 to commemorate Michael Brown and mark the fifth anniversary of his death. The City proactively met with the DOJ and the Monitoring Team in anticipation of numerous planned and unplanned community events. During the weekend of August 9-11, 2019, SME Robert Stewart and former St. Louis Police Commissioner, Daniel Isom, were in Ferguson on behalf of the Monitoring Team to provide technical support, assistance, and to observe the City’s interactions with the 6 Given this period of suspension, the SRO-related provisions of the Consent Decree have been removed from the Year Four workplan.
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public. The Monitoring Team was pleased that FPD thoughtfully prepared for these events and with FPD’s performance with respect to protected First Amendment activity that weekend. The Parties will continue to work toward completion of policy development during the next reporting period, posting the draft policies for public comment, incorporating feedback where appropriate, and completing policy development in this area by the close of Year Four. CD, ¶¶ 110-27.
J. Data Collection During Year Three, a lack of progress with respect to data collection and analysis delayed implementation efforts in numerous subject areas contained in the decree. The Monitor is pleased to report that the City engaged a data consulting firm, AH Datalytics, during the reporting period in order to advance its data collection and analysis efforts. AH Datalytics has commenced a gap analysis and initiated the development of a comprehensive data collection plan. Under their guidance, the City now has the tools required to commence implementation of many of the Consent Decree’s data-related provisions during Year Four. III. CONCLUSION The Monitoring Team remains pleased that policy development has resulted in the finalization or near finalization of policies in various subject areas, including use of force and accountability, and that Year Four is likely to see the completion of policy development with respect to all of the Parties’ stated priority areas. To avoid an implementation bottleneck associated with delayed roll call trainings, the City should prioritize a system for developing and conducting roll call trainings regularly and efficiently. Additional resources should be dedicated to the development of a robust training plan and to the implementation of in-service trainings. Finally, the City must continue to develop its community policing and engagement
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efforts during Year Four. This area of the Consent Decree has fallen behind other subject areas and must become a priority for the City if substantial compliance with respect to implementation is to be achieved.
As always, the Monitoring Team appreciates the continued effort put forth by the DOJ and the City in achieving the aims of the Consent Decree and looks forward to continuing to work collaboratively as the City moves through the implementation phase of the decree.

Date: January 31, 2020

Respectfully submitted,
/s/ Natashia Tidwell Natashia Tidwell Hogan Lovells US LLP 125 High Street 20th Floor Boston, MA 02110 617-371-1076 natashia.tidwell@hoganlovells.com

CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that the foregoing was filed electronically on January 31, 2020 with the Clerk of the Court for the United States District Court for the Eastern District of Missouri, and was served by ECF notice by operation of the Court’s electronic filing system.
/s/ Natashia Tidwell

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Appendix A to the Independent Monitor’s Winter 2020 Report United States v. The City of Ferguson Case No. 4:16-cv-180

CD ¶

YEAR FOUR: August 2019 - July 2020

Phase I

Phase II

Phase III

COMMUNITY POLICING & ENGAGEMENT

City to host and participate in group structured Develop plan for structured Begin first series of

dialogues, arranged and led by a qualified

dialogues and submit to MT structured dialogues.

19

neutral facilitator, between police officers and community members and groups, with an emphasis on community members and groups

(Tidwell). Completion date: 03/30/20

Completion date: 05/30/20

who previously have not had strong or positive

relationships with FPD or the City.

City and FPD to develop a community-

Redesignate FPD’s

Develop Community

Public Comment Period for

engagement plan in consultation with the

Community Outreach

Engagement Plan (and

Community Engagement Plan

Neighborhood Policing Steering Committee Coordinator and outline

Crime Prevention Plan if

and roll call/training briefing.

20

("NPSC"), the Civilian Review Board ("CRB"), individuals and groups within

general responsibilities associated with the role.

needed) and submit to MT (Tidwell).

Completion date: Year Five

Ferguson, and community stakeholders who can provide unique perspectives and assistance,

Completion date: 03/30/20

Completion date: 07/31/20

such as local colleges and universities.

City, in consultation with FPD and the NPSC, Develop Policy for

Public Comment Period for

to develop and implement policies to receive, Responding to NPSC

NPSC Recommendations

consider, respond to, and act upon NPSC

Recommendations and submit Policy and roll call

23

recommendations in a fully transparent and timely manner. The City will designate a City employee to provide administrative support

to MT (Tidwell). Completion date: 04/30/20

training/briefing. Completion date: 07/31/20

necessary for the NPSC to perform its advisory

function.

25 The City to assist with the establishment of a Establish Neighborhood

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Appendix A to the Independent Monitor’s Winter 2020 Report United States v. The City of Ferguson Case No. 4:16-cv-180

CD ¶

YEAR FOUR: August 2019 - July 2020
Neighborhood Association in each of Ferguson’s apartment complexes.

Phase I
Associations in Apartment Complexes. Completion date: 07/31/20

Phase II

City to develop an FPD crime-prevention plan Finalize CP policy and submit Public Comment Period for

and community-policing plan to ensure that to MT (Stewart).

Community Policing Policy

policing is oriented around community 26 priorities and partnerships and based on

Completion date: 07/31/20

and roll call training/briefing.

problem-solving principles.

Completion date: Year

Five

FPD to develop and implement Ferguson’s “Neighborhood Policing Plan: A Police Community Partnership." 27

Develop Neighborhood Policing Plan and submit to MT (Tidwell).
Completion date: 07/31/20

Public Comment Period for Neighborhood Policing Plan and roll call training/briefing.
Completion date: Year Five

FPD to develop strategies for working with

Develop schedule of monthly

community to address crime trends, policing command staff CP/Crime

28 complaints, neighborhood quality of life and analysis meetings and submit

working with community.

to MT (Tidwell).

Completion date: 05/31/20

29-30; 256-258

The City will develop and implement a staffing plan that enables close and effective supervision and will revise its current shift sequences and deployment to better support a community-oriented approach to policing and will post officer patrol area assignments on

Develop Shift Schedule/Deployment Plan and submit to MT (Stewart & Tidwell).
Completion date: 07/31/20

Phase III

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CD ¶

YEAR FOUR: August 2019 - July 2020
FPD website.

Phase I

Phase II

Phase III

33, 34

City to affiliate with the Community Mediation Services of St. Louis and to develop a plan for providing neighborhood mediations that promote lasting resolutions of appropriately selected disputes among community members, while reducing the need for involvement in the criminal justice system. The City will also affiliate with the Community Mediation Services of St. Louis to provide a communitycentered mediation program to act as an alternative to the misconduct investigation process for certain civilian allegations of officer misconduct.

Finalize Neighborhood Mediation Plan.
Completion date: 03/30/20

Commence communitycentered mediations.
Completion date: 07/31/20

REFORM OF THE FERGUSON MUNICIPAL CODE

City to develop and implement plan for

Finalize plan for Reassessment

comprehensive reassessment and revision of and Revision of Municipal

remaining Code provisions to ensure they are Code and submit to MT

consistent with U.S. Constitution and other 40 laws and provide clear and appropriate
guidance to public and law enforcement

(Tidwell). Completion date: 07/31/20

officers.

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CD ¶

YEAR FOUR: August 2019 - July 2020

Phase I

Phase II

POLICIES & TRAINING

City to review policies and procedures within City to review policies and

one year of implementation to ensure they

procedures one year after

provide effective direction to FPD personnel implementation and identify

45 and remain consistent with Agreement.

any deficiencies.

Completion date: TBA for each subject area

The City agrees to maintain a complete, up-to- City to ensure that all finalized City to make finalized

date manual of all FPD policies and procedures policies are maintained in a policies accessible to

that is organized and maintained in a manner manner easily accessible to the stakeholders internal and

that makes it easily accessible and clear to

public, and that officers and external to FPD in

officers, employees, and others. Officers and employees have access to

compliance with this

46

employees will have access to the manual in hard copy form, and in a readily usable

finalized policies in hard copy provision and to complete and readily usable electronic renumbering of policies on

electronic format (e.g., through an FPD

format.

an ongoing basis.

intranet system accessible within the mobile data computers of FPD officers). Revisions and

Completion date: 04/01/20

Ongoing

updates to FPD policies and procedures will be

incorporated into the manual.

49-51

FPD to establish a Training Committee, develop schedule for delivering all training required in Agreement, and develop a written Training Plan for supplementing FDP recruits' academy training; enhancing FPD's field training, and implement comprehensive inservice training.

Develop Training Schedule and submit to MT (Stewart & Tidwell).
Completion date: 04/30/20

Finalize and submit training plan to MT (Stewart & Tidwell).
Completion date: 07/31/20

Phase III

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CD ¶

YEAR FOUR: August 2019 - July 2020

Phase I

Phase II

Phase III

BIAS-FREE POLICE AND COURT PRACTICES

65-71

The City to provide clear policy, training, and supervisory direction on prohibited conduct, including selective enforcement activities or decisions, non-enforcement of the law, and the selection or rejection of particular tactics and strategies based upon stereotypes or bias. The City's policies shall take into account influences of implicit bias, stereotype threat, and gender bias on officer enforcement decisions, use of force, and other police and court activity.

Parties to conduct youth forum regarding Bias-Free Police & Court Practices.
Completion date: 04/30/20

Parties to incorporate community and youth feedback into draft policies and provide Monitoring Team with for final policies for approval (Norwood).

Completion date: 07/31/20

City to conduct roll call training on final Bias-Free Police and Court Practices policies.
Completion date: Summer 2020

FPD police and court employees will provide Parties to conduct public

Develop policies to address

timely and meaningful access to police and

forums and initiate

access for LEP individuals

court services to all. City will develop and 67 implement policies and training to ensure

development of policies that address access for LEP

and submit to MT (Norwood).

timely and meaningful police services to LEP individuals.

individuals. Completion date: 07/31/20

Completion date: Year Five

VOLUNTARY CONTACTS, STOPS, SEARCHES, CITATIONS, AND ARRESTS

The City agrees to ensure that all FPD

City to review its entire body

voluntary encounters, investigatory stops and of existing policies to ensure

detentions, searches, citations, and arrests are requirements of Consent

75 conducted in accordance with the rights,

Decree in this area are met

privileges, and immunities secured or protected and, where necessary, rescind

by the Constitution and the laws of the United and revise.

States. FPD will ensure that these police activities are part of an effective overall crime

Ongoing through Year Five

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CD ¶

YEAR FOUR: August 2019 - July 2020
prevention strategy; are consistent with community priorities for enforcement; build trust between FPD and the community; and are adequately documented for tracking and supervision purposes.

Phase I

Phase II

Phase III

76-82

The City to provide clear direction with respect to policies related to voluntary contacts and investigatory detentions in accordance with the requirements of the Consent Decree.

Finalize Investigatory Detentions policy and revised Field Interview Report and submit to MT for final approval (Stewart & Tidwell).

Completion date: 03/30/20

City to conduct roll call training/briefing.
Completion date: 07/31/20

83-89

The City to provide clear direction with respect to policies related to searches with or without a warrant in accordance with the requirements of the Consent Decree.

Finalize umbrella Search policy and submit to MT for final approval (Stewart & Tidwell).

Completion date: 03/30/20

City to conduct roll call training/briefing.
Completion date: 07/31/20

90-98

The City to provide clear direction with respect to policies related to citations, stop orders or “wanteds,” and warrantless arrests in accordance with the requirements of the Consent Decree.

Finalize Power of Arrest and Detentions policy and submit to MT for final approval (Stewart & Tidwell).
Completion date: 03/30/20

Finalize Citations and Stop Orders or “Wanteds” policy and submit to MT for final approval (Stewart & Tidwell).
Completion date: 07/31/20

City to conduct roll call training/briefing.
Year Five

FIRST AMENDMENT PROTECTED ACTIVITY

Parties acknowledge that First Amendment 110-127 protected activities serve important societal

Finalize policies on FPD officer response to First

functions, including promoting transparency in Amendment Protected Activity

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CD ¶

YEAR FOUR: August 2019 - July 2020
government affairs, ensuring accountability of public officials, and encouraging community feedback -- whether critical or laudatory -- that ultimately reduce tension and foster a sense of openness and trust between law enforcement and the public.

Phase I
and submit to MT (Stewart). Completion date: 07/31/20

Phase II

Phase III

FORCE

128-170

The City will ensure that its use-of-force policies, training, supervision, and accountability systems are designed to ensure that FPD officers use force in accordance with the Constitution and other laws, FPD policy, and the Consent Decree. City to develop policies pertaining to general use-of-force and weapon-specific requirements.

Conduct roll call training/briefing on Use of Force Policies.
Completion date: 03/30/20

Incorporate into and commence in-service & supervisor training programs.
Completion date: 07/31/20

172-194

FPD to develop and implement comprehensive process for reporting and investigating all FPD officer uses of force.

Conduct roll call training/briefing on Use of Force Reporting & Investigations Policy.
Completion date: 03/30/20

Officers to begin reporting and supervisors to begin reviewing use of force data.
Completion date: 05/01/20

Incorporate into and commence in-service & supervisor training programs.
Completion date: 07/31/20

CRISIS INTERVENTION

197-206

FPD will implement a Crisis Intervention Team (CIT) first-responder model of policebased crisis intervention with community, health care, and advocacy partnerships.

Designate a Crisis Intervention Coordinator.
Completion date: 03/30/20

Initiate development of Crisis Intervention program and host policy forums.
Completion date: Summer 2020

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CD ¶

YEAR FOUR: August 2019 - July 2020

Phase I

Phase II

Phase III

BODY-WORN AND IN-CAR CAMERAS

228-250

In an effort to bring continued transparency regarding police activities; improve the effectiveness and reliability of use-of-force and misconduct investigations; enhance supervision of FPD stops, searches, and arrests; and provide material for officer training, the City will equip FPD officers with body-worn and in-car cameras, and will ensure that such devices are used consistent with law and policy. All aspects of FPD's use of body-worn and in-car cameras will be designed and implemented to promote transparency, provide learning opportunities to officers, and increase officer safety, while ensuring officer accountability and respect for individual privacy rights.

Finalize BWC and ICC policies including footage sharing provisions and submit to MT for final approval (Goodrich).
Completion date: 3/30/20

Conduct roll call training/briefing on BWC and ICC policies.
Completion date: 7/31/20

Incorporate into and commence in-service & supervisor training programs.
Completion date: Year Five

SUPERVISION

75, 99108

The City agrees to ensure that all FPD voluntary encounters, investigatory stops and detentions, searches, citations, and arrests are conducted in accordance with the rights, privileges, and immunities secured or protected by the Constitution and the laws of the United States. FPD will ensure that these police activities are part of an effective overall crime prevention strategy; are consistent with community priorities for enforcement; build

City to review its entire body of existing 4th Amendmentrelated policies to ensure requirements of Consent Decree in this area are met with regards to the role of supervisors and, where necessary, rescind and revise.
Ongoing through Year Five

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CD ¶

YEAR FOUR: August 2019 - July 2020
trust between FPD and the community; and are adequately documented for tracking and supervision purposes.

Phase I

Phase II

256-258

The City will develop and implement a staffing plan that enables close and effective supervision and will revise its current shift sequences and deployment to better support a community-oriented approach to policing and will post officer patrol area assignments on FPD website.

Develop Shift Schedule/Deployment Plan and submit to MT (Stewart & Tidwell).
Completion date: 07/31/20

City to develop and implement supervisory

Develop Curriculum for

Begin Supervisor Training

training course for all new and current

Supervisor Training Program Program.

317

supervisors to carry out all supervisory duties established in policy and this Agreement, and provide specific instruction on methods for

and submit to MT (Stewart). Completion date: 04/30/20

Completion date: 07/31/20

ensuring supervisory duties are fulfilled.

RECRUITMENT

281-285

City will develop, with Neighborhood Policing Steering Committee, a written Recruitment Plan that includes clear goals, objectives, and action steps for attracting and retaining a highquality and diverse work force.

Finalize Recruitment Plan including salary study and submit to MT (Tidwell).
Completion date: 07/31/20

Roll call training/briefing.
Completion date: Year Five

MUNICIPAL COURT REFORM1

Phase III

1 Detailed information regarding the status of reform of the Ferguson Municipal Court and the Monitoring Team’s audit findings will be published in a supplemental written report.

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CD ¶

YEAR FOUR: August 2019 - July 2020

Phase I

Phase II

ACCOUNTABILITY

361-398

Holding public servants accountable when they violate law or policy is essential to ensuring legitimacy of governance and community confidence. Well-functioning accountability systems also promote employee safety and morale. The City will review applicable policies and personnel regulations to ensure incorporation of these accountability principles. Any violation of the personnel rules and regulations, including of provisions relating to the principles of accountability, shall be subject to appropriate discipline, up to and including termination. These policies shall include a Duty to Report Misconduct; Duty of Candor; and Internal Investigations.

Conduct roll call training/briefing on Disciplinary Matrix and Citizen Complaint form.
Completion date: 03/30/20

Begin to incorporate into inservice and supervisor training programs.
Completion date: 07/31/20 (and annually thereafter)

399 -400

City to provide and provide appropriate resources for community-centered mediation program to act as an alternative to misconduct investigation process.

Conduct roll call training/briefing on Mediation Program policy.
Completion date: 03/30/20

Begin to incorporate into inservice and supervisor training programs.
Completion date: 07/31/20 (and annually thereafter)

CIVILIAN OVERSIGHT

405(d)

CRB will develop and recommend a program to promote awareness throughout the broader Ferguson community about the options available for filing misconduct complaints, and about the misconduct complaint process.

Within 60 days of implementation of Complaint Mediation Program City will develop awareness program and submit to MT.

Phase III

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CD ¶ 412 413

YEAR FOUR: August 2019 - July 2020

Phase I Completion date: TBA

Phase II

Phase III

DATA COLLECTION

To ensure that collected data is complete, accurate, and reliable, the City agrees to work with the Monitor to develop and implement a cost-feasible data collection plan and related protocols, to be approved by the Monitor and DOJ.

In consultation with its data coordinator, the City will provide to the MT (Goodrich) a worksheet identifying for all CD provisions, the data it currently collects, that which the CD requires, and where and how such data is tracked or will be tracked in the future.

In consultation with its data coordinator, the City will develop a schedule for implementing a comprehensive data collection plan and begin implementation of that plan.
Completion date: 07/31/20

Completion date: 03/30/20

The City will make publicly available on request and on the City’s website all FPD and municipal court policies and protocols, as well as all public reports described in the Consent Decree. Any exceptions will be limited to information that must remain confidential to protect public safety and approved by DOJ and the Monitor.

Ongoing as policies are implemented.

Ongoing as policies are implemented.

Ongoing as policies are implemented.

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Ferguson Community Survey
Platform Report: Community Survey
To cite this report, please use: Police Foundation (2019). Law Enforcement Community Survey Report. Washington, DC: National Law Enforcement Applied Research and Data Platform.
For more information, please visit https://www.nationallawenforcementplatform.org

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Community Survey Ferguson, MO1

Introduction:
The National Police Foundation partnered with the Ferguson Police Department and the Ferguson monitoring team to conduct a community survey. The National Police Foundation team conducted a site visit in January 2019 to discuss the community survey, including providing support and recommendations on how to increase likelihood of a representative sample. The police department and monitoring team conducted outreach and administered surveys from April through early August 2019, and the NPF analyzed survey results and generated this report. The sample of individuals who chose to take the survey do not reflect the demographic makeup of the community of Ferguson, with an overrepresentation of affluent, educated, white residents. While not representative of the community at large, survey findings may still inform department’s understanding of community concerns and inform priority actions.
How well are the police doing at the following?

Good/Very good job Poor/Very poor job Do not know

60

50

40

36 31

30

41 31

39 34

42 26

20

10

10

5

3

8

0

Fighting Crime Dealing with Being visible Being problems that on the streets available

concern your neighborhood

when you need them

40 27
10
Responding promptly to
calls for assistance

48

28

32

17

16 13

Helping victims of
crime

Treating people fairly regardless of who they are

According to the respondents, the police are doing a good job being available when needed, responding promptly to calls, and treating people fairly regardless of who they are. Respondents also indicated that the police are doing a poor job fighting crime, dealing with neighborhood problems, and being visible on the streets. Respondents were mixed as to whether police are doing a good job helping victims of crimes.

1 Counts will not be the same for each question, because not all participants responded to all questions
1

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How common is it for the police to do the following?

0 10 20 30 40 50 60 70

Stop people on the street or in cars without good reason

4

21

Use excessive force

5

21

Use offensive language 4 22

Break the law or break police rules
Treat people differently depending on race, ethnicity, gender identification,
religion or immigration status
Act professionally

5 23
13 16
12 4

53 52 51 48 48
61

Very/Somewhat uncommon Very/Somewhat common Do not know

According to the respondents, it is common for the police to act professionally. Respondents indicated that it was uncommon for police to stop people without good reason, use excessive force, use offensive language, break the law or police rules, or treat people differently based on race, ethnicity, gender identification, religion or immigration status.

2

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When you are in Ferguson, how worried are you about the following?

Very Worried Somewhat Worried Not At All Worried

50 45 40 35 30 25 20 15

32 32 15

37 28
14

27 26 26

42 19 17

34 34 11

43 26 10

41 22 16

10

5

0

Having your Having your Being Being outside People selling People using Being hassled

car broken home broken assaulted or in the location or using drugs or selling guns by youths or

into or stolen into

robbed where you

others

work or go to

drinking,

school

loitering, or

panhandling

Respondents are not worried about being outside where they go to work or school. They are somewhat worried or very worried about having their home broken into, having the car broken into or stolen, being assaulted or robbed, and people using or selling drugs. Respondents indicated they are very worried about people using or selling guns, as well as being hassled by youths or others drinking, loitering, or panhandling.

Please indicate how much you agree or disagree with the following:

Strongly agree/Agree Strongly disagree/Disagree

80

70

58

60

50

40

30

21

20

10

0

50 29

68 12

56 24

I trust the Ferguson I have confidence that I would feel comfortable I believe that if I

Police Department to the Ferguson Police calling the Ferguson complained about an

make decisions that are Department can do its Police Department if I officer to the Ferguson

good for everyone in the

job well

needed help

Police Department, that

city

the agency would take it

seriously

The majority of respondents agree that they trust Ferguson Police Department, have confidence in them, would feel comfortable calling them if needed, and believe that the agency would take complaints against officers seriously.

3

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How likely would you be to do the following?

Work with the Ferguson Police Department

to identify a person who has committed a

74

5

crime in your neighborhood

Work with the Ferguson Police Department

to identify places for example - houses, businesses, parks - where crimes are taking

75

4

place

Attend a meeting of residents in your neighborhood to discuss crime prevention

70

9

Very likely/Likely Very unlikely/Unlikely
The majority of community members would be likely to work with Ferguson Police Department to identify a person who has committed a crime, or places where crimes have taken place, as well as attend a meeting of residents in their neighborhood to discuss crime prevention.

4

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Please indicate how much you agree or disagree with the following:

Strongly agree/Agree Strongly disagree/Disagree

90 80

72

77

70

58

60

50

40

30

21

20

10

6

2

0

I sometimes question the When a police officer makes I feel an obligation to obey

laws we are asked to obey a request, you should do

the law

what they say even if you

disagree with it

An overwhelming majority of respondents agree that they feel an obligation to obey the law and that, when a police officer makes a request, they should comply even if they disagree with it. Most respondents disagree that they sometimes question the laws they are asked to obey.
Open-Ended - Is there anything you would like to share about the Ferguson Police
Department or Ferguson Municipal Court, good or bad?

Themes
Several themes surfaced through the open-ended question that provides insight into the respondent’s perspectives of the police department and its operations. These themes include: the negative impacts that the consent decree has had on the police department – to include de-policing; lack of enforcement of crime; the shortage of officers within the police department; and a general lack of confidence in leadership of the department. Over 21% of the respondents specifically indicated that they felt the consent decree has prevented the police department from enforcing the law and doing their job. Another 21% of respondents indicated that they felt crime was increasing and that police were not enforcing traffic or other laws. 29% of respondents indicated that they felt the police department was understaffed and by hiring more officers – quickly – that it would help resolve some of the crime issues. The remaining responses included comments regarding leadership issues within the department (7.8%) and perceived officer morale, racism, and lack of training (2.6% each). Over 13% of community members who responded had only positive things to say about the police department, some mentioned them doing a great job despite challenging circumstances.

5

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Demographics

Where do you live in Ferguson, Missouri?

0% 20% 40% 60% 80% 100%

Ferguson Ward 1

31.17%

Ferguson Ward 2

48.05%

Ferguson Ward 3

14.29%

I am not resident of Ferguson

6.49%

Gender:

Female, 55.84%

Other/choose not to
respond, 2.60%

Male, 41.56%

6

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Age:

45%

40%

38.96%

35%

30% 24.68%
25%

20%

15%

11.69%

12.99%

10%

5.19%

5% 2.60%

2.60% 1.30%

0%

18 - 24 25 - 34 35 - 44 45 - 54 55 - 64 65 - 74 75 - 84 85 or

older

Race:

0% 20% 40% 60% 80% 100%

White

76.25%

Black or African American

12.50%

Hispanic or Latinx 1.25%

Asian 1.25%

Native American 1.25%

Some other racial or ethnic group

7.50%

7

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Education:

50% 40.26%

40%

33.77%

30%

20.78%

20%

10% 0.00% 0.00% 2.60% 2.60% 0%

Some grade school Some high school
Graduated high school Technical/Vocational Some college Graduated college/Bachelors
Graduate/Professional degree

Household Income:

40%

35.53%

30%

23.68%

20%

17.11%

19.74%

10% 3.95%
0% Less than $25,001 to $50,001 to $75,001 to Over $25,000 less than less than less than $100,000 $50,000 $75,000 $100,000

8

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Interactions
Have you had an interaction with the Ferguson Police Department over the past year?
No, 28.75%
Yes, 71.25%
Are you willing to answer some additional questions about that interaction?
89.47%

10.53%

Yes

No

9

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What was the age of the officer you interacted with the most?

Over 40 years old, 29.17%

Under 30 years old, 16.67%

30 to 40 years old, 54.17%
Was the officer you interacted with the most a male or female?
Female, 10.42%
Male, 89.58%

10

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To the best of your knowledge, what was this officer's race or ethnicity?

0% 20% 40% 60% 80% 100%

White

58.33%

Black

37.50%

Hispanic or Latino/Latina 0.00%

Asian 2.08%

Native American 0.00%

Some other racial or ethnic group 2.08%

How did your face-to-face contact with a police officer occur?
67.44%

4.65%

6.98%

9.30%

11.63%

It was a traffic It was a traffic It was a crime I was stopped

stop

crash

report while walking,

riding a bike,

or waiting in a

public area

Do not remember

11

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What happened as a result of this police contact?

I was given a ticket or fine I was given a warning only 0.00%
Nothing happened Something else

25.00%

25.00%

50.00%

Where did your police contact occur?
Other, 18.75%
At a district police station,
12.50%

On the street, 31.25%
In your home, 37.50%

12

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How long did it take for the police to arrive?
37.04%

14.81%

22.22%

25.93%

They arrived very They arrived

They arrived They arrived very

slowly

somewhat slowly somewhat quickly quickly

What type of crime incident was it?

60.71%

7.14%

32.14%

It was a personal crime, It was a property crime, It was some other type

where someone was where someone broke

of crime

threatened or attacked into a home, building or

by another person or car, and stole property

had something taken or damaged property

from them by force or

threat

13

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Please indicate how much you agree or disagree with the following statements that may describe your feelings since this incident occurred.

Strongly agree/Agree Strongly disagree/Disagree

40 35

34

33

30 25 20

24

19

21

15 10

9

11

9

5

0

I sometimes I have taken I have not fully I am angry about

blame myself for action to prevent recovered from what happened

what happened this from

this crime

happening again

Most respondents disagree that they blame themselves for what happened and that they have not fully recovered from the crime. They primarily agree that they have taken action to prevent it from happening again. Responses about anger toward the incident are mixed.

Taking the whole experience into account, how satisfied are you with the way you were treated by the officer in this case?

Very satisfied

Satisfied

Dissatisfied

6.52%

Very dissatisfied

6.52%

28.26%

58.70%

14

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The outcome I received was fair:
Agree, 20.00%

Strongly Agree, 80.00%

Note: there were options to disagree, but no one selected those responses.

During the encounter, the officer…

Strongly agree/Agree Strongly disagree/Disagree

45

40

39

40

39

35

30

25

20

15

10

6

6

7

5

0

Considered my views Seemed trustworthy Tried to be helpful

38
8 Took the matter
seriously

Most respondents agreed that the officer considered their views, seemed trustworthy, tried to be helpful, and took the matter seriously.

15

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During the encounter, the officer…

0 10 20 30 40 50

Made decisions based on the facts 7
Was fair and evenhanded 7

37 Strongly agree/Agree
37 Strongly disagree/Disagree

Discriminated against me because of 2

my race, gender, age, religion, or

sexual orientation

41

Most respondents agreed that the officer made decisions based on the facts and was fair and evenhanded. They primarily disagreed that the officer discriminated against them.

During the encounter, the officer…

0 10 20 30 40 50

Treated me with dignity and respect 3
Treated me politely 2

43 Strongly agree/Agree
44 Strongly disagree/Disagree

3 Talked down to me
43

The majority of respondents agree that the officer treated them politely, and with dignity and respect. They mostly disagreed that the officer talked down to them.

16

Case: 4:16-cv-00180-CDP Doc. #: 128-2 Filed: 01/31/20 Page: 18 of 22 PageID #: 2439
During the encounter, the officer…

Strongly agree/Agree Strongly disagree/Disagree

50

45

43

42

40 35

34

30

25

20

15

12

10

5

3

4

0

Remained calm

Displayed a sense of humor

Interrupted me

Most respondents agreed that the officer remained calm and displayed a sense of humor. They disagreed that the officer interrupted them.

During the encounter with the police…

Yes No

50 45

44

40 35

33

30

30

25

20

15

11

13

10

5

1

0

At the start, did the officer Did the officer raise his or Did the officer thank you for

greet you by saying 'hello'

her voice to you?

cooperating?

and stating his or her name?

Respondents indicated that the officer did start the interaction with a “hello” and thank them for cooperating. According to respondents, the officer did not raise their voice.

17

Case: 4:16-cv-00180-CDP Doc. #: 128-2 Filed: 01/31/20 Page: 19 of 22 PageID #: 2440
During your encounter with the police, did you raise your voice to the officer?

Yes, 2.17%

No, 97.83%

During the encounter, the officer seemed to blame me for what happened:

Strongly Agree

4.44%

Agree

4.44%

Disagree

13.33%

Strongly Disagree

77.78%

18

Case: 4:16-cv-00180-CDP Doc. #: 128-2 Filed: 01/31/20 Page: 20 of 22 PageID #: 2441
During the encounter, the officer…

Strongly agree/Agree

Strongly disagree/Disagree 0 5 10 15 20 25 30 35 40 45

Appeared to know what he or she was doing

3

Clearly explained the reasons for his or her

actions

5

Explained what would happen next in the

process

6

Answered my questions well

5

42 40 35 38

Respondents primarily agreed that the officer appeared to know what they were doing, clearly explained themselves and what would happen next, and answered questions well.

During the encounter, the officer…

Strongly agree/Agree Strongly disagree/Disagree

40

38

35

37

35

31

30

25

20

15

10

5

5

8

10 4

0

Listened to what I Seemed concerned Seemed to believe

had to say

about my feelings what I was saying

Comforted and reassured me

Respondents primarily agreed that the officer listened to them, seemed concerned about their feelings, seemed to believe them, and comforted or reassured them.

19

Case: 4:16-cv-00180-CDP Doc. #: 128-2 Filed: 01/31/20 Page: 21 of 22 PageID #: 2442
During the encounter, the officer…

Strongly agree/Agree Strongly disagree/Disagree

18

16

16

14

14

12

11

10

8

8

6

4

2

0

Referred me to people or agencies Provided me with useful tips to

that might be helpful

avoid this situation in the future

Respondents primarily agreed that the officer provided them with useful tips to avoid similar situations in the future, but disagreed that the officer referred them to people or agencies that might be helpful.

During the encounter…

Yes No

Did the officer point a weapon at you, such as pepper spray, a stun gun, or 0
actual gun?

Did the officer search you by touching your body in different places?

0

Did the officer actually use force against you, such as pushing, grabbing, hitting, or 1
kicking you?

Did the officer threaten to use physical force against you?

0

5 5
4 5

Most respondents disagreed that the officer pointed a weapon at them, touched them, used any kind of force on them, or threated to use force. However, one respondent did say that an officer used force against them.

20

Case: 4:16-cv-00180-CDP Doc. #: 128-2 Filed: 01/31/20 Page: 22 of 22 PageID #: 2443
How safe do you feel, or would you feel, being alone outside in Ferguson at night?

Very safe Somewhat safe Somewhat unsafe
Very unsafe

20.00% 33.33%
22.22% 24.44%

Are you a resident of the city where you had the police encounter?
No, 6.67%

Yes, 93.33%

21

 
 Attorney General Holder Announces Next Steps to Address Concerns Regarding the City of Ferguson and St. Louis County Police Departments | OPA | Department ...

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Department of Justice Office of Public Affairs

FOR IMMEDIATE RELEASE

Thursday, September 4, 2014

Attorney General Holder Announces Next Steps to Address Concerns Regarding the City of Ferguson and St. Louis County Police Departments
Attorney General Eric Holder announced today that the Justice Department has launched two initiatives to address concerns about police services in the city of Ferguson and in St. Louis County, Missouri. First, in addition to the ongoing criminal civil rights investigation, the Civil Rights Division has opened a civil pattern or practice investigation into allegations of unlawful policing by the City of Ferguson Police Department (FPD). Second, the Attorney General announced that the Community Oriented Policing Services (COPS) Office has launched a Collaborative Reform Initiative with the St. Louis County Police Department (SLCPD).
“The Department of Justice is working across the nation to ensure that the criminal justice system is fair, constitutional and free of bias,” said Attorney General Holder. “The interventions in Missouri are an important part of that commitment. While there is much work left to do, we feel confident that there are solutions to any issues we find and that community trust in law enforcement can be restored and maintained. Ferguson and St. Louis County are not the first places that we have become engaged to ensure fair and equitable policing and they will not be the last. The Department of Justice will continue to work tirelessly to ensure that the Constitution has meaning for all communities.”
The pattern or practice investigation will look at whether officers of the Ferguson Police Department have engaged in systemic violations of the Constitution or federal law. The investigation will focus on the Ferguson Police Department’s use of force, including deadly force; stops, searches and arrests; discriminatory policing; and treatment of detainees inside Ferguson’s city jail by Ferguson police officers. The department will consider all relevant information, particularly the efforts that FPD has undertaken to ensure compliance with federal law, and the experiences and views of the community.
Over the past five fiscal years, the Civil Rights Division has opened over 20 pattern or practice investigations into police departments across the country, which is more than twice as many as were opened in the previous five fiscal years. The division is enforcing 14 agreements to reform

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Attorney General Holder Announces Next Steps to Address Concerns Regarding the City of Ferguson and St. Louis County Police Departments | OPA | Department ...

law enforcement practices at agencies both large and small. These agreements have already resulted in tangible changes in these communities by ensuring constitutional policing, enhancing public safety and making the job of delivering police services safer and more effective.

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The investigation is being conducted by attorneys and staff from Civil Rights Division. They will be assisted by experienced law enforcement experts. The department encourages anyone wishing to provide relevant information to contact the department at 1-855-856-2132, or via email at community.ferguson@usdoj.gov .

The COPS Collaborative Reform Technical Assistance process with the SLCPD is a voluntary process that will include an open, independent and objective assessment of key operational areas of the police department, such as training, use of force, handling mass demonstrations, stops, searches, arrests, and fair and impartial policing. The assessment will include the SLCPD police academy which trains officers for many police departments in the region, including the FPD. The findings of this assessment, and recommendations to address any deficiencies that it uncovers, will be provided in a public report and shared with the community. Additionally, SLCPD Chief Jon Belmar has requested that COPS conduct an after action report on the SLCPD’s response to the protests following the shooting of Michael Brown.

The Collaborative Reform process is an initiative in which the COPS Office, in partnership with a designated technical assistance provider and subject matter experts, works with a law enforcement agency to assess an issue that affects police and community relationships. Grounded in the principles of constitutional policing and procedural justice, it is a means to organizational transformation through an analysis of policies, practices, training, and tactics around a specific issue that can jeopardize an agency’s legitimacy within its community. It is not a short term solution for a serious deficiency, but a long term strategy that identifies the issues within an agency that affect public trust and offers recommendations on how to improve the issue and enhance the relationship between the police and the community.

The Collaborative Reform process was initially launched in 2011. The Las Vegas Metropolitan Police Department was the first agency to participate and complete the process, which resulted in the adoption of over 75 recommendations regarding the use of force. The COPS Office is currently working with the Philadelphia and Spokane police departments with this process.
“Today we are launching a comprehensive review of the Ferguson Police Department to assess whether police practices are constitutional and fair in Ferguson,” said Acting Assistant Attorney General Molly Moran for the Civil Rights Division. “We are encouraged by the pledge of cooperation from Mayor Knowles and Chief Jackson, and we look forward to working with them as our process moves forward.”

“The recent disturbances in Ferguson have revealed significant mistrust between the community and police agencies throughout the county, including the St. Louis County Police Department,” said COPS Director Davis. “The county has expressed a strong desire to take steps to create a relationship of trust and to ensure fairness and equity in its policing practices, and I applaud St. Louis County Police Chief Jon Belmar for seeking technical assistance and agreeing to the Collaborative Reform process. The advancements that will be made through this effort will not only benefit the St. Louis county police department; they will serve as a model for all police
http://www.justice.gov/opa/pr/attorney-general-holder-announces-next-steps-address-concerns-regarding-city-ferguson-and-st[9/27/2014 11:14:38 AM]

Attorney General Holder Announces Next Steps to Address Concerns Regarding the City of Ferguson and St. Louis County Police Departments | OPA | Department ... agencies in the region and throughout the nation.”

The department is also conducting in a thorough, fair and independent criminal investigation into the circumstances of the fatal shooting of Michael Brown on in Ferguson on Aug. 9, 2014. Although the department is working cooperatively with the local investigators, the federal investigation supplements, but does not supplant, the St. Louis County Police Department’s investigation into the shooting incident. The initiatives announced today are also separate from the ongoing current criminal investigations related to the death of Michael Brown.

The Civil Rights Division has an ongoing, separate investigation of the St. Louis County Juvenile Court to determine whether it engages in patterns or practices of violations of young people’s rights. The section is assessing whether there are violations of due process, equal protection or access to counsel. Anyone wishing to provide information related to that investigation can email the department at Community.StLouis@usdoj.gov or call toll free 855-228-2151.

The Justice Department has taken similar steps involving a variety of state and local law enforcement agencies, both large and small, in jurisdictions throughout the United States using its authority under the Violent Crime Control and Law Enforcement Act of 1994, the Omnibus Crime Control and Safe Streets Act of 1968, and Title VI of the Civil Rights Act of 1964. Under Attorney General Holder’s leadership, more investigations have resulted in comprehensive, court-overseen agreements to fundamentally change the law enforcement agency’s police practices than in any other five-year period in the department’s history.

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 Attorney General Statement on Latest Developments in Federal Civil Rights Investigation in Ferguson, MO | OPA | Department of Justice

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Monday, August 18, 2014

Attorney General Statement on Latest Developments in Federal Civil Rights Investigation in Ferguson, MO
Attorney General Eric Holder released the following statement Monday following his briefing of President Obama on the latest developments in the federal civil rights investigation in Ferguson, Missouri:

“As I informed the President this afternoon, the full resources of the Department of Justice are being committed to our federal civil rights investigation into the death of Michael Brown.
“During the day today, more than 40 FBI agents continued their canvassing of the neighborhood where Michael Brown was shot. As a result of this investigative work, several new interviews have already been conducted.
“Moreover, at my direction, an additional medical examination is being performed on the body of Michael Brown. This autopsy is being performed today by one of the most experienced medical examiners in the United States military. I am confident this additional autopsy will be thorough and aid in our investigation.
“In addition to updating the President on these developments, I informed him of my plan to personally travel to Ferguson Wednesday. I intend to meet with FBI investigators, and prosecutors on the ground from the Civil Rights Division and U.S. Attorney’s Office officials about the ongoing investigation.
“I realize there is tremendous interest in the facts of the incident that led to Michael Brown’s

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Attorney General Statement on Latest Developments in Federal Civil Rights Investigation in Ferguson, MO | OPA | Department of Justice

death, but I ask for the public’s patience as we conduct this investigation. The selective release of sensitive information that we have seen in this case so far is troubling to me. No matter how others pursue their own separate inquiries, the Justice Department is resolved to preserve the integrity of its investigation. This is a critical step in restoring trust between law enforcement and the community, not just in Ferguson, but beyond.

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“In order to truly begin the process of healing, we must also see an end to the acts of violence in the streets of Ferguson. Those who have been peacefully demonstrating should join with law enforcement in condemning the actions of looters and others seeking to enflame tensions.

“To assist on this front, the Department will be dispatching additional representatives from the Community Relations Service, including Director Grande Lum, to Ferguson. These officials will continue to convene stakeholders whose cooperation is critical to keeping the peace. Furthermore, as the President has announced, Ron Davis, our Director of the COPS office, will arrive on the ground in Ferguson Tuesday. Ron has been in touch with local and state officials since last week, providing technical assistance on crowd control techniques and facilitating communications between Missouri officials and other law enforcement officials whose communities have faced similar challenges in the past.”

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 CL:JV:CH:CB:ES:MC DJ: 207-42-6

u.s. Department of Justice
Civil Rights Division
Special Litigation Section - PHE 950 Pennsylvania Ave, NW Washington DC 20530

September 23, 2014
Chief Thomas Jackson Police Chief City of Ferguson 222 S. Florissant Road Ferguson, MO 63135
Re: Ferguson Police Department Investigation: Officer Name Plates
Dear Chief Jackson:
When we met at the outset of our investigation, we noted that, where appropriate, we would inform you of any concerns that we discovered during our investigation that warrant your immediate attention. During our time in Ferguson, we have observed that some Ferguson police officers were not wearing name plates. We also have heard numerous complaints that Ferguson police officers do not wear name plates, indicating that our observations are not aberrational.
We have reviewed Ferguson Police Department's General Order 214.00, Uniforms, Equipment, and Appearance (January 3, 2012), which indicates that officers are issued "name plates" with their first initial and last name, and requires that officers wear a "name tag," bearing their first initial and last name on both their uniform shirt and jacket. This policy also requires that supervisors inspect personnel daily, and periodically require personnel to produce all Department-issued property for inspection. Officers found not in conformity with this policy may be subject to disciplinary action.
Officers wearing name plates while in uniform is a basic component of transparency and accountability. It is a near-universal requirement of sound policing practices and required under some state laws. Allowing officers to remain anonymous when they interact with the public contributes to mistrust and undermines accountability. The failure to wear name plates conveys a message to community members that, through anonymity, officers may seek to act with impunity. Further, the lack of name plates makes it difficult or impossible for members of the public to identify officers if they engage in.misconduct, or for police departments to hold them accountable.

2 We urge you to explain to officers the importance of General Order 214.00 and to begin enforcing it immediately. Please let us know at your earliest convenience whether you intend to do so.
Our investigation is ongoing and we will provide a complete report of our findings when it is complete. We are writing this interim letter regarding this specific, easily remedied problem, to allow the City of Ferguson and its police department to immediately correct a practice that is at odds with principles of constitutional policing, and that engenders deep distrust among the very people whose trust police most need to effectively fight crime and protect public safety.
Please do not hesitate to call me if you have questions.
Sincerely,
~{~ Deputy Chief Special Litigation Section Civil Rights Division United States Department of Justice
cc: John Shaw Ferguson City Manager
Stephanie Karr City Attorney

 
 CL:JV:CH:CB:ES:MC
DI: 207-42-6

U.S. Department of Justice Civil Rishts Division
Special Litigation Section - PHB
950 Pennsylvania Ave, Nt{
Washington DC 20530

September 26,2014
Chief Thomas Jackson Police Chief City of Ferguson 222 S. Florissant Road
Ferguson, MO 63135
Re: Ferguson Police Department Investigation: Bracelets
Dear Chief Jackson:
We write to confirm our understanding that you will prohibit Ferguson Police Department officers from wearing "I am Darren Wilson" bracelets while in uniform and on dutyWe write also to confirm our understanding that you will ensure that other municipal police agencies prohibit their officers from wearing these bracelets while working in Ferguson.
As we discussed yesterday, Ferguson residents told Department of Justice Civil Rights Division officials during our communiry interviews on Wednesday evening that law enforcement offrcers policing at prctest sites in Ferguson on Tuesday were wearing these bracelets. Residents observed that these bracelets upset and agitated people. We were shown pictures of officers wearing these bracelets. It further was reported to us that some officers affirmatively disptraying these bracelets had black tape over their name plates. The practice of not wearing, or obscuring, narne plates violates your own department's policies, which we advised you earlier this week w-hen we requested that you end the practice imrnediately.
To be clear, the pictures do not indicate which law enforcement agencies the officers wearing these bracelets were from, and we have no other evidence confrming that Ferguson
police officers were wearing these bracelets. However, as you are all too aware, the actions of other police ofFrcers while in Ferguson can impact your community as much as the actions of
your own officers. For this reason, the Department of Justice COPS office has spoken with County Police Chief Belmar and State Highway Patrol Superintendent, Colonel RonReplogle, who have assured us that County and State law enforcement officers will be prohibited &om
wearing these bracelets.

2
We are keenly aware of the importance of individual expression of opinions, even those that some find offensive, insensitive, or harmful. We also acknowledge that the message that many officers intend to convey by wearing these bracelets may be different than the message received by many of t}ose who see these bracelets"
Nonetheless, there is no question that police departrnents can and should closely regulate officers' professional appearance and behavior, particularly where, as here, the expressive accessory itself is exacerbatiag an already tense atmosphere between law enforcement and residents in Ferguson. These bracelets reinforce the very "us versus them" mentality that many residents of Ferguson believe exists.
Due to the strong interest in this issue, later today we will be publically releasing this letter, as well as the letter we provided to you on Tuesday regarding officer name plates. Please do not hesitate to call me if you have questions.
Sincerely,
{l--;<{*#-X*,'/,./.'-\-i
Christy ETLopez Deputy Chief Special Litigation Section Civil Rights Division United States Departrnent of Justice
cc: John Shaw Ferguson City Manager
Stephanie Kar
City Attomey

 
 U.S. Department of Justice C ivil Rights Division

Offi ce of rite Assistant Allomey Gen eral

Washin gton, D. C. 20530

City Manager John Shaw City of Ferguson 11 0 Church Street Ferguson, MO 63135

MAR 03 20Ii

Chi ef Thomas Jackson City of Ferguson 110 Church Street Ferguson, MO 63135

Re: Investigation of the Fergu son Police Department

Dear City Manager Shaw and Chie f Jackson :

The United States Department of J ustic e's C ivil Rights Division has completed it s investigation of the Ferguson Police Department (" FPD"). Our investigation was conducted pursuant to the pattern or practice provision of the Violent Crime Control and Law Enforcement
Act of 1994, 42 U.S.c. § 14141 , the Omnibus Cri me Contro l and Safe Streets Act of 1968, 42 U.S.c. § 3789d ("Safe Streets Act"), and Title VI of the Civ il Rights Act of 1964, 42 U.S.C. §
2000d ("Title VI").

We have concluded th at we have reasonable cause to believe that the Ferguson Police Department engages in a pattern or practice of unlawful conduct that viol ates the Uni ted States Constitution and federal statutory law. Specifically, our in vestigation found that : 1) FPD conducts stops w ithout reasonable suspicion and arrests without probable cause in violation of the Fourth Amendm ent; 2) FPD in fringes on free expression and retal iates fo r protected express ion in viol ation of the First Amend ment; 3) FPD engages in a pattern of excess ive rorce in violation of the Fourth Am endm ent; 4) the Ferguson Municipal Cou rt engages in a pattern or practice of co nduct that violates due process req uirements of the Fourteenth Amendment ; and 5 ) Ferguson's law enforcement exerts a disparate impact on African Americans that is not necessary to any legitimate goa l and thus vio lates th e Safe Streets Act and Title VI, and that is motivated, at least in part, by a discriminatory purpose in viol at ion of the Equal Protection Clause of the Fourteenth Amendment. Our findings are detailed in the accompanying Report .

We ann ounced this investigation on September 4,20 14. Our investigation included meeting with you and other City officials, including Mayor James Knowles, Municipal Judge

2
Ronald Brockmeyer, the Municipal Court Clerk, Ferguson's Finance Director, half ofFPD's sworn officers, and others. We spent, co llective ly, approximately 100 person-days onsite in Ferguson. We participated in ride-alongs with on-duty officers, reviewed over 35,000 pages of police records as well as thousands of emails and other electronic materials provided by the police department. Enli sting the assistance of statistical experts, we analyzed FPD' s data on stops, searches, citations, and arrests, as we ll as data collected by the municipal court. We observed four separate sessions of Ferguson Municipal Court, interviewing dozens of people charged with local offenses. We sought to engage the local community, conducting hundreds of in-person and telephone interviews of individuals who reside in Ferguson or who have had interactions with the police department. We contacted ten neighborhood associations and met with each group that responded to us, as well as several other community groups and advocacy organizations. Throughout the investigation, we relied on two police chiefs who accompanied us to Ferguson and who themselves interviewed City and police officials, spoke with community members, and reviewed FPD policies and incident reports.
During the course of our investigation, we recommended changes that could be made immediately without waiting for the completion of our investigation. We recognize that the City has already begun to implement a number of these changes. It appears that the City has: 1) required superv isory approval for issuing more than two citations during a single incident; 2) required FPD officers to participate in bias-free policing training; 2) established a list of "fix- it" tickets, or correctable violations that the court will dismiss if addressed within a certain period of time ; 4) created a more definitive bond schedule , at least for warrantless arrests, and eliminated bond requirements for all but 12 municipal offenses, instead allowing arrested individual s to be given a court date and released on their own recogni zance ; 5) lowered the amount of time a person incarcerated on a warrantless arrest can be held in Ferguson City Jail before being released from 72 hours to 12 hours ; 6) created a process for a person on a payment plan to seek a reduction in a required monthly payment before having an arrest warrant issued against them for failing to pay the owed amount; and 7) extended to April 20 15 Ferguson's "warrant reca ll program," which allows individuals with outstanding warrants to receive a new court date and have warrants cancelled without the payment of bond.
While we recognize and commend these and other efforts, even if appropriately implemented they are not sufficient to address the constitutional and other legal violations oLir investigation identified. At the conclusion of oLir Report, we have broadly identified the changes that are necessary to remedy the violations we have found. Ensuring meaningful, sustainable, and verifiable reform will require that these and other measures be part of a court-enforceable remedial process that includes involvement from community stakeholders as well as independent oversight. In the coming weeks, we will seek to work with you and the wider Ferguson community toward developing and reaching agreement on an appropriate framework for reform. Implementation of the reforms listed in our Report will rebuild the badly eroded trust between the FPD and the community it serves, which in turn will promote greater officer and public safety.
We thank you for meeting with us to discuss our Report, and for your cooperation and assistance throughout our investigation. We are also appreciative of the other City officials and the rank-and-file officers who have likewise cooperated with this investigation and provided LI S

3
with ins ights into the operation of the police department, including the muni c ipal court. Notwithstanding the findings contained in our Rep0l1, we found many Ferguson police officers and other City employees to be dedicated pub lic servants stri ving each day to perform their duties lawfully and with respect for all members of the Ferguson community. The importance of their work cannot be overstated.
Please note that this letter and the Report are public documents and will be posted on th e Civil Rights Divi sion's website.
If you have any questions regarding thi s matter, please call Jonathan M. Smith, Chi ef of the Civil Rights Division's Special Litigation Section, at (202) 514-6255.

cc: James W. Knowles III Mayor
Stephanie Kan City Attorney

Since re ly,
Vanita Gupta Acting Assistant Attorney General Civil Rights Division United States Department of Justice

 
 Investigation of the Ferguson Police Department
United States Department of Justice Civil Rights Division
March 4, 2015

TABLE OF CONTENTS
I. REPORT SUMMARY ........................................................................................................ 1 II. BACKGROUND.................................................................................................................. 6 III. FERGUSON LAW ENFORCEMENT EFFORTS ARE FOCUSED ON
GENERATING REVENUE ............................................................................................... 9 IV. FERGUSON LAW ENFORCEMENT PRACTICES VIOLATE THE LAW AND
UNDERMINE COMMUNITY TRUST, ESPECIALLY AMONG AFRICAN AMERICANS .................................................................................................................... 15 A. Ferguson’s Police Practices ............................................................................................ 15
1. FPD Engages in a Pattern of Unconstitutional Stops and Arrests in Violation of the Fourth Amendment ..................................................................................... 16
2. FPD Engages in a Pattern of First Amendment Violations .................................. 24 3. FPD Engages in a Pattern of Excessive Force in Violation of the Fourth
Amendment........................................................................................................... 28 B. Ferguson’s Municipal Court Practices ........................................................................... 42
1. Court Practices Impose Substantial and Unnecessary Barriers to the Challenge or Resolution of Municipal Code Violations....................................... 43
2. The Court Imposes Unduly Harsh Penalties for Missed Payments or Appearances .......................................................................................................... 54
C. Ferguson Law Enforcement Practices Disproportionately Harm Ferguson’s African-American Residents and Are Driven in Part by Racial Bias ............................ 62 1. Ferguson’s Law Enforcement Actions Impose a Disparate Impact on African Americans that Violates Federal Law................................................................... 63 2. Ferguson’s Law Enforcement Practices Are Motivated in Part by Discriminatory Intent in Violation of the Fourteenth Amendment and Other Federal Laws ......................................................................................................... 70
D. Ferguson Law Enforcement Practices Erode Community Trust, Especially Among Ferguson’s African-American Residents, and Make Policing Less Effective, More Difficult, and Less Safe .................................................................................................. 79 1. Ferguson’s Unlawful Police and Court Practices Have Led to Distrust and Resentment Among Many in Ferguson ................................................................ 79 2. FPD’s Exercise of Discretion, Even When Lawful, Often Undermines Community Trust and Public Safety..................................................................... 81 3. FPD’s Failure to Respond to Complaints of Officer Misconduct Further Erodes Community Trust ...................................................................................... 82 4. FPD’s Lack of Community Engagement Increases the Likelihood of Discriminatory Policing and Damages Public Trust............................................. 86
i

5. Ferguson’s Lack of a Diverse Police Force Further Undermines Community Trust ...................................................................................................................... 88
V. CHANGES NECESSARY TO REMEDY FERGUSON’S UNLAWFUL LAW ENFORCEMENT PRACTICES AND REPAIR COMMUNITY TRUST ................. 90
VI. CONCLUSION................................................................................................................ 102
ii

I. REPORT SUMMARY
The Civil Rights Division of the United States Department of Justice opened its investigation of the Ferguson Police Department (“FPD”) on September 4, 2014. This investigation was initiated under the pattern-or-practice provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d (“Safe Streets Act”), and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (“Title VI”). This investigation has revealed a pattern or practice of unlawful conduct within the Ferguson Police Department that violates the First, Fourth, and Fourteenth Amendments to the United States Constitution, and federal statutory law.
Over the course of the investigation, we interviewed City officials, including City Manager John Shaw, Mayor James Knowles, Chief of Police Thomas Jackson, Municipal Judge Ronald Brockmeyer, the Municipal Court Clerk, Ferguson’s Finance Director, half of FPD’s sworn officers, and others. We spent, collectively, approximately 100 person-days onsite in Ferguson. We participated in ride-alongs with on-duty officers, reviewed over 35,000 pages of police records as well as thousands of emails and other electronic materials provided by the police department. Enlisting the assistance of statistical experts, we analyzed FPD’s data on stops, searches, citations, and arrests, as well as data collected by the municipal court. We observed four separate sessions of Ferguson Municipal Court, interviewing dozens of people charged with local offenses, and we reviewed third-party studies regarding municipal court practices in Ferguson and St. Louis County more broadly. As in all of our investigations, we sought to engage the local community, conducting hundreds of in-person and telephone interviews of individuals who reside in Ferguson or who have had interactions with the police department. We contacted ten neighborhood associations and met with each group that responded to us, as well as several other community groups and advocacy organizations. Throughout the investigation, we relied on two police chiefs who accompanied us to Ferguson and who themselves interviewed City and police officials, spoke with community members, and reviewed FPD policies and incident reports.
We thank the City officials and the rank-and-file officers who have cooperated with this investigation and provided us with insights into the operation of the police department, including the municipal court. Notwithstanding our findings about Ferguson’s approach to law enforcement and the policing culture it creates, we found many Ferguson police officers and other City employees to be dedicated public servants striving each day to perform their duties lawfully and with respect for all members of the Ferguson community. The importance of their often-selfless work cannot be overstated.
We are also grateful to the many members of the Ferguson community who have met with us to share their experiences. It became clear during our many conversations with Ferguson residents from throughout the City that many residents, black and white, genuinely embrace Ferguson’s diversity and want to reemerge from the events of recent months a truly inclusive, united community. This Report is intended to strengthen those efforts by recognizing the harms caused by Ferguson’s law enforcement practices so that those harms can be better understood and overcome.
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Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs. This emphasis on revenue has compromised the institutional character of Ferguson’s police department, contributing to a pattern of unconstitutional policing, and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harm on members of the Ferguson community. Further, Ferguson’s police and municipal court practices both reflect and exacerbate existing racial bias, including racial stereotypes. Ferguson’s own data establish clear racial disparities that adversely impact African Americans. The evidence shows that discriminatory intent is part of the reason for these disparities. Over time, Ferguson’s police and municipal court practices have sown deep mistrust between parts of the community and the police department, undermining law enforcement legitimacy among African Americans in particular.
Focus on Generating Revenue
The City budgets for sizeable increases in municipal fines and fees each year, exhorts police and court staff to deliver those revenue increases, and closely monitors whether those increases are achieved. City officials routinely urge Chief Jackson to generate more revenue through enforcement. In March 2010, for instance, the City Finance Director wrote to Chief Jackson that “unless ticket writing ramps up significantly before the end of the year, it will be hard to significantly raise collections next year. . . . Given that we are looking at a substantial sales tax shortfall, it’s not an insignificant issue.” Similarly, in March 2013, the Finance Director wrote to the City Manager: “Court fees are anticipated to rise about 7.5%. I did ask the Chief if he thought the PD could deliver 10% increase. He indicated they could try.” The importance of focusing on revenue generation is communicated to FPD officers. Ferguson police officers from all ranks told us that revenue generation is stressed heavily within the police department, and that the message comes from City leadership. The evidence we reviewed supports this perception.
Police Practices
The City’s emphasis on revenue generation has a profound effect on FPD’s approach to law enforcement. Patrol assignments and schedules are geared toward aggressive enforcement of Ferguson’s municipal code, with insufficient thought given to whether enforcement strategies promote public safety or unnecessarily undermine community trust and cooperation. Officer evaluations and promotions depend to an inordinate degree on “productivity,” meaning the number of citations issued. Partly as a consequence of City and FPD priorities, many officers appear to see some residents, especially those who live in Ferguson’s predominantly AfricanAmerican neighborhoods, less as constituents to be protected than as potential offenders and sources of revenue.
This culture within FPD influences officer activities in all areas of policing, beyond just ticketing. Officers expect and demand compliance even when they lack legal authority. They are inclined to interpret the exercise of free-speech rights as unlawful disobedience, innocent movements as physical threats, indications of mental or physical illness as belligerence. Police supervisors and leadership do too little to ensure that officers act in accordance with law and policy, and rarely respond meaningfully to civilian complaints of officer misconduct. The result is a pattern of stops without reasonable suspicion and arrests without probable cause in violation of the Fourth Amendment; infringement on free expression, as well as retaliation for protected
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expression, in violation of the First Amendment; and excessive force in violation of the Fourth Amendment.
Even relatively routine misconduct by Ferguson police officers can have significant consequences for the people whose rights are violated. For example, in the summer of 2012, a 32-year-old African-American man sat in his car cooling off after playing basketball in a Ferguson public park. An officer pulled up behind the man’s car, blocking him in, and demanded the man’s Social Security number and identification. Without any cause, the officer accused the man of being a pedophile, referring to the presence of children in the park, and ordered the man out of his car for a pat-down, although the officer had no reason to believe the man was armed. The officer also asked to search the man’s car. The man objected, citing his constitutional rights. In response, the officer arrested the man, reportedly at gunpoint, charging him with eight violations of Ferguson’s municipal code. One charge, Making a False Declaration, was for initially providing the short form of his first name (e.g., “Mike” instead of “Michael”), and an address which, although legitimate, was different from the one on his driver’s license. Another charge was for not wearing a seat belt, even though he was seated in a parked car. The officer also charged the man both with having an expired operator’s license, and with having no operator’s license in his possession. The man told us that, because of these charges, he lost his job as a contractor with the federal government that he had held for years.
Municipal Court Practices
Ferguson has allowed its focus on revenue generation to fundamentally compromise the role of Ferguson’s municipal court. The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests. This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements. The court’s practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety.
Most strikingly, the court issues municipal arrest warrants not on the basis of public safety needs, but rather as a routine response to missed court appearances and required fine payments. In 2013 alone, the court issued over 9,000 warrants on cases stemming in large part from minor violations such as parking infractions, traffic tickets, or housing code violations. Jail time would be considered far too harsh a penalty for the great majority of these code violations, yet Ferguson’s municipal court routinely issues warrants for people to be arrested and incarcerated for failing to timely pay related fines and fees. Under state law, a failure to appear in municipal court on a traffic charge involving a moving violation also results in a license suspension. Ferguson has made this penalty even more onerous by only allowing the suspension to be lifted after payment of an owed fine is made in full. Further, until recently, Ferguson also added charges, fines, and fees for each missed appearance and payment. Many pending cases still include such charges that were imposed before the court recently eliminated them, making it as difficult as before for people to resolve these cases.
The court imposes these severe penalties for missed appearances and payments even as several of the court’s practices create unnecessary barriers to resolving a municipal violation. The court often fails to provide clear and accurate information regarding a person’s charges or court obligations. And the court’s fine assessment procedures do not adequately provide for a defendant to seek a fine reduction on account of financial incapacity or to seek alternatives to
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payment such as community service. City and court officials have adhered to these court practices despite acknowledging their needlessly harmful consequences. In August 2013, for example, one City Councilmember wrote to the City Manager, the Mayor, and other City officials lamenting the lack of a community service option and noted the benefits of such a program, including that it would “keep those people that simply don’t have the money to pay their fines from constantly being arrested and going to jail, only to be released and do it all over again.”
Together, these court practices exacerbate the harm of Ferguson’s unconstitutional police practices. They impose a particular hardship upon Ferguson’s most vulnerable residents, especially upon those living in or near poverty. Minor offenses can generate crippling debts, result in jail time because of an inability to pay, and result in the loss of a driver’s license, employment, or housing.
We spoke, for example, with an African-American woman who has a still-pending case stemming from 2007, when, on a single occasion, she parked her car illegally. She received two citations and a $151 fine, plus fees. The woman, who experienced financial difficulties and periods of homelessness over several years, was charged with seven Failure to Appear offenses for missing court dates or fine payments on her parking tickets between 2007 and 2010. For each Failure to Appear, the court issued an arrest warrant and imposed new fines and fees. From 2007 to 2014, the woman was arrested twice, spent six days in jail, and paid $550 to the court for the events stemming from this single instance of illegal parking. Court records show that she twice attempted to make partial payments of $25 and $50, but the court returned those payments, refusing to accept anything less than payment in full. One of those payments was later accepted, but only after the court’s letter rejecting payment by money order was returned as undeliverable. This woman is now making regular payments on the fine. As of December 2014, over seven years later, despite initially owing a $151 fine and having already paid $550, she still owed $541.
Racial Bias
Ferguson’s approach to law enforcement both reflects and reinforces racial bias, including stereotyping. The harms of Ferguson’s police and court practices are borne disproportionately by African Americans, and there is evidence that this is due in part to intentional discrimination on the basis of race.
Ferguson’s law enforcement practices overwhelmingly impact African Americans. Data collected by the Ferguson Police Department from 2012 to 2014 shows that African Americans account for 85% of vehicle stops, 90% of citations, and 93% of arrests made by FPD officers, despite comprising only 67% of Ferguson’s population. African Americans are more than twice as likely as white drivers to be searched during vehicle stops even after controlling for non-race based variables such as the reason the vehicle stop was initiated, but are found in possession of contraband 26% less often than white drivers, suggesting officers are impermissibly considering race as a factor when determining whether to search. African Americans are more likely to be cited and arrested following a stop regardless of why the stop was initiated and are more likely to receive multiple citations during a single incident. From 2012 to 2014, FPD issued four or more citations to African Americans on 73 occasions, but issued four or more citations to non-African Americans only twice. FPD appears to bring certain offenses almost exclusively against African Americans. For example, from 2011 to 2013, African Americans accounted for 95% of Manner of Walking in Roadway charges, and 94% of all Failure to Comply charges. Notably, with
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respect to speeding charges brought by FPD, the evidence shows not only that African Americans are represented at disproportionately high rates overall, but also that the disparate impact of FPD’s enforcement practices on African Americans is 48% larger when citations are issued not on the basis of radar or laser, but by some other method, such as the officer’s own visual assessment.
These disparities are also present in FPD’s use of force. Nearly 90% of documented force used by FPD officers was used against African Americans. In every canine bite incident for which racial information is available, the person bitten was African American.
Municipal court practices likewise cause disproportionate harm to African Americans. African Americans are 68% less likely than others to have their cases dismissed by the court, and are more likely to have their cases last longer and result in more required court encounters. African Americans are at least 50% more likely to have their cases lead to an arrest warrant, and accounted for 92% of cases in which an arrest warrant was issued by the Ferguson Municipal Court in 2013. Available data show that, of those actually arrested by FPD only because of an outstanding municipal warrant, 96% are African American.
Our investigation indicates that this disproportionate burden on African Americans cannot be explained by any difference in the rate at which people of different races violate the law. Rather, our investigation has revealed that these disparities occur, at least in part, because of unlawful bias against and stereotypes about African Americans. We have found substantial evidence of racial bias among police and court staff in Ferguson. For example, we discovered emails circulated by police supervisors and court staff that stereotype racial minorities as criminals, including one email that joked about an abortion by an African-American woman being a means of crime control.
City officials have frequently asserted that the harsh and disparate results of Ferguson’s law enforcement system do not indicate problems with police or court practices, but instead reflect a pervasive lack of “personal responsibility” among “certain segments” of the community. Our investigation has found that the practices about which area residents have complained are in fact unconstitutional and unduly harsh. But the City’s personal-responsibility refrain is telling: it reflects many of the same racial stereotypes found in the emails between police and court supervisors. This evidence of bias and stereotyping, together with evidence that Ferguson has long recognized but failed to correct the consistent racial disparities caused by its police and court practices, demonstrates that the discriminatory effects of Ferguson’s conduct are driven at least in part by discriminatory intent in violation of the Fourteenth Amendment.
Community Distrust
Since the August 2014 shooting death of Michael Brown, the lack of trust between the Ferguson Police Department and a significant portion of Ferguson’s residents, especially African Americans, has become undeniable. The causes of this distrust and division, however, have been the subject of debate. Police and other City officials, as well as some Ferguson residents, have insisted to us that the public outcry is attributable to “outside agitators” who do not reflect the opinions of “real Ferguson residents.” That view is at odds with the facts we have gathered during our investigation. Our investigation has shown that distrust of the Ferguson Police Department is longstanding and largely attributable to Ferguson’s approach to law enforcement. This approach results in patterns of unnecessarily aggressive and at times unlawful policing;
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reinforces the harm of discriminatory stereotypes; discourages a culture of accountability; and neglects community engagement. In recent years, FPD has moved away from the modest community policing efforts it previously had implemented, reducing opportunities for positive police-community interactions, and losing the little familiarity it had with some AfricanAmerican neighborhoods. The confluence of policing to raise revenue and racial bias thus has resulted in practices that not only violate the Constitution and cause direct harm to the individuals whose rights are violated, but also undermine community trust, especially among many African Americans. As a consequence of these practices, law enforcement is seen as illegitimate, and the partnerships necessary for public safety are, in some areas, entirely absent.
Restoring trust in law enforcement will require recognition of the harms caused by Ferguson’s law enforcement practices, and diligent, committed collaboration with the entire Ferguson community. At the conclusion of this report, we have broadly identified the changes that are necessary for meaningful and sustainable reform. These measures build upon a number of other recommended changes we communicated verbally to the Mayor, Police Chief, and City Manager in September so that Ferguson could begin immediately to address problems as we identified them. As a result of those recommendations, the City and police department have already begun to make some changes to municipal court and police practices. We commend City officials for beginning to take steps to address some of the concerns we have already raised. Nonetheless, these changes are only a small part of the reform necessary. Addressing the deeply embedded constitutional deficiencies we found demands an entire reorientation of law enforcement in Ferguson. The City must replace revenue-driven policing with a system grounded in the principles of community policing and police legitimacy, in which people are equally protected and treated with compassion, regardless of race.
II. BACKGROUND
The City of Ferguson is one of 89 municipalities in St. Louis County, Missouri.1 According to United States Census Data from 2010, Ferguson is home to roughly 21,000 residents.2 While Ferguson’s total population has stayed relatively constant in recent decades, Ferguson’s racial demographics have changed dramatically during that time. In 1990, 74% of Ferguson’s population was white, while 25% was black.3 By 2000, African Americans became the new majority, making up 52% of the City’s population.4 According to the 2010 Census, the black population in Ferguson has grown to 67%, whereas the white population has decreased to 29%.5 According to the 2009-2013 American Community Survey, 25% of the City’s population lives below the federal poverty level.6
1 See 2012 Census of Governments, U.S. Census Bureau (Sept. 2013), available at http://factfinder.census.gov/bkmk/table/1.0/en/COG/2012/ORG13.ST05P?slice=GEO~0400000US29 (last visited Feb. 26, 2015). 2 See 2010 Census, U.S. Census Bureau (2010), available at http://factfinder.census.gov/bkmk/table/1.0/en/DEC/10_SF1/QTP3/1600000US2923986 (last visited Feb. 26, 2015). 3 See 1990 Census of Population General Population Characteristics Missouri, U.S. Census Bureau (Apr. 1992), available at ftp://ftp2.census.gov/library/publications/1992/dec/cp-1-27.pdf (last visited Feb. 26, 2015). 4 See Race Alone or in Combination: 2000, U.S. Census Bureau (2000), available at http://factfinder.census.gov/ bkmk/table/1.0/en/DEC/00_SF1/QTP5/1600000US2923986 (last visited Feb. 26, 2015). 5 2010 Census, supra note 2. 6 See Poverty Status in the Past 12 Months 2009-2013 American Community Survey 5-Year Estimates, U.S. Census Bureau (2014), available at
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Residents of Ferguson elect a Mayor and six individuals to serve on a City Council. The City Council appoints a City Manager to an indefinite term, subject to removal by a Council vote. See Ferguson City Charter § 4.1. The City Manager serves as chief executive and administrative officer of the City of Ferguson, and is responsible for all affairs of the City. The City Manager directs and supervises all City departments, including the Ferguson Police Department.
The current Chief of Police, Thomas Jackson, has commanded the police department since he was appointed by the City Manager in 2010. The department has a total of 54 sworn officers divided among several divisions. The patrol division is the largest division; 28 patrol officers are supervised by four sergeants, two lieutenants, and a captain. Each of the four patrol squads has a canine officer. While all patrol officers engage in traffic enforcement, FPD also has a dedicated traffic officer responsible for collecting traffic stop data required by the state of Missouri. FPD has two School Resource Officers (“SROs”), one who is assigned to the McCluer South-Berkeley High School and one who is assigned to the Ferguson Middle School. FPD has a single officer assigned to be the “Community Resource Officer,” who attends community meetings, serves as FPD’s public relations liaison, and is charged with collecting crime data. FPD operates its own jail, which has ten individual cells and a large holding cell. The jail is staffed by three non-sworn correctional officers. Of the 54 sworn officers currently serving in FPD, four are African American.
FPD officers are authorized to initiate charges—by issuing citations or summonses, or by making arrests—under both the municipal code and state law. Ferguson’s municipal code addresses nearly every aspect of civic life for those who live in Ferguson, and regulates the conduct of all who work, travel through, or otherwise visit the City. In addition to mirroring some non-felony state law violations, such as assault, stealing, and traffic violations, the code establishes housing violations, such as High Grass and Weeds; requirements for permits to rent an apartment or use the City’s trash service; animal control ordinances, such as Barking Dog and Dog Running at Large; and a number of other violations, such as Manner of Walking in Roadway. See, e.g., Ferguson Mun. Code §§ 29-16 et seq.; 37-1 et seq.; 46-27; 6-5, 6-11; 44344.
FPD files most charges as municipal offenses, not state violations, even when an analogous state offense exists. Between July 1, 2010, and June 30, 2014, the City of Ferguson issued approximately 90,000 citations and summonses for municipal violations. Notably, the City issued nearly 50% more citations in the last year of that time period than it did in the first. This increase in enforcement has not been driven by a rise in serious crime. While the ticketing rate has increased dramatically, the number of charges for many of the most serious offenses covered by the municipal code—e.g., Assault, Driving While Intoxicated, and Stealing—has remained relatively constant.7
http://factfinder.census.gov/bkmk/table/1.0/en/ACS/13_5YR/S1701/1600000US2923986 (last visited Feb. 26, 2015). 7 This is evidenced not only by FPD’s own records, but also by Uniform Crime Reports data for Ferguson, which show a downward trend in serious crime over the last ten years. See Uniform Crime Reports, Federal Bureau of Investigation, http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s (last visited Feb. 26, 2015).
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Because the overwhelming majority of FPD’s enforcement actions are brought under the municipal code, most charges are processed and resolved by the Ferguson Municipal Court, which has primary jurisdiction over all code violations. Ferguson Mun. Code § 13-2. Ferguson’s municipal court operates as part of the police department. The court is supervised by the Ferguson Chief of Police, is considered part of the police department for City organizational purposes, and is physically located within the police station. Court staff report directly to the Chief of Police. Thus, if the City Manager or other City officials issue a court-related directive, it is typically sent to the Police Chief’s attention. In recent weeks, City officials informed us that they are considering plans to bring the court under the supervision of the City Finance Director.
A Municipal Judge presides over court sessions. The Municipal Judge is not hired or supervised by the Chief of Police, but is instead nominated by the City Manager and elected by the City Council. The Judge serves a two-year term, subject to reappointment. The current Municipal Judge, Ronald Brockmeyer, has presided in Ferguson for approximately ten years. The City’s Prosecuting Attorney and her assistants officially prosecute all actions before the court, although in practice most cases are resolved without trial or a prosecutor’s involvement. The current Prosecuting Attorney was appointed in April 2011. At the time of her appointment, the Prosecuting Attorney was already serving as City Attorney, and she continues to serve in that separate capacity, which entails providing general counsel and representation to the City. The Municipal Judge, Court Clerk, Prosecuting Attorney, and all assistant court clerks are white.
While the Municipal Judge presides over court sessions, the Court Clerk, who is employed under the Police Chief’s supervision, plays the most significant role in managing the court and exercises broad discretion in conducting the court’s daily operations. Ferguson’s municipal code confers broad authority on the Court Clerk, including the authority to collect all fines and fees, accept guilty pleas, sign and issue subpoenas, and approve bond determinations. Ferguson Mun. Code § 13-7. Indeed, the Court Clerk and assistant clerks routinely perform duties that are, for all practical purposes, judicial. For example, documents indicate that court clerks have disposed of charges without the Municipal Judge’s involvement.
The court officially operates subject to the oversight of the presiding judge of the St. Louis County Circuit Court (21st Judicial Circuit) under the rules promulgated by that Circuit Court and the Missouri Supreme Court. Notwithstanding these rules, the City of Ferguson and the court itself retain considerable power to establish and amend court practices and procedures. The Ferguson municipal code sets forth a limited number of protocols that the court must follow, but the code leaves most aspects of court operations to the discretion of the court itself. See Ferguson Mun. Code Ch. 13, Art. III. The code also explicitly authorizes the Municipal Judge to “make and adopt such rules of practice and procedure as are necessary to hear and decide matters pending before the municipal court.” Ferguson Mun. Code § 13-29.
The Ferguson Municipal Court has the authority to issue and enforce judgments, issue warrants for search and arrest, hold parties in contempt, and order imprisonment as a penalty for contempt. The court may conduct trials, although it does so rarely, and most charges are resolved without one. Upon resolution of a charge, the court has the authority to impose fines, fees, and imprisonment when violations are found. Specifically, the court can impose imprisonment in the Ferguson City Jail for up to three months, a fine of up to $1,000, or a combination thereof. It is rare for the court to sentence anyone to jail as a penalty for a violation of the municipal code; indeed, the Municipal Judge reports that he has done so only once.
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Rather, the court almost always imposes a monetary penalty payable to the City of Ferguson, plus court fees. Nonetheless, as discussed in detail below, the court issues arrest warrants when a person misses a court appearance or fails to timely pay a fine. As a result, violations that would normally not result in a penalty of imprisonment can, and frequently do, lead to municipal warrants, arrests, and jail time.
As the number of charges initiated by FPD has increased in recent years, the size of the court’s docket has also increased. According to data the City reported to the Missouri State Courts Administrator, at the end of fiscal year 2009, the municipal court had roughly 24,000 traffic cases and 28,000 non-traffic cases pending. As of October 31, 2014, both of those figures had roughly doubled to 53,000 and 50,000 cases, respectively. In fiscal year 2009, 16,178 new cases were filed, and 8,727 were resolved. In 2014, by contrast, 24,256 new offenses were filed, and 10,975 offenses were resolved.
The court holds three or four sessions per month, and each session lasts no more than three hours. It is not uncommon for as many as 500 people to appear before the court in a single session, exceeding the court’s physical capacity and leading individuals to line up outside of court waiting to be heard. Many people have multiple offenses pending; accordingly, the court typically considers 1,200-1,500 offenses in a single session, and has in the past considered over 2,000 offenses during one sitting. Previously there was a cap on the number of offenses that could be assigned to a particular docket date. Given that cap, and the significant increase in municipal citations in recent years, a problem developed in December 2011 in which more citations were issued than court sessions could timely accommodate. At one point court dates were initially scheduled as far as six months after the date of the citation. To address this problem, court staff first raised the cap to allow 1,000 offenses to be assigned to a single court date and later eliminated the cap altogether. To handle the increasing caseload, the City Manager also requested and secured City Council approval to fund additional court positions, noting in January 2013 that “each month we are setting new all-time records in fines and forfeitures,” that this was overburdening court staff, and that the funding for the additional positions “will be more than covered by the increase in revenues.”

III.

FERGUSON LAW ENFORCEMENT EFFORTS ARE FOCUSED

ON GENERATING REVENUE

City officials have consistently set maximizing revenue as the priority for Ferguson’s law enforcement activity. Ferguson generates a significant and increasing amount of revenue from the enforcement of code provisions. The City has budgeted for, and achieved, significant increases in revenue from municipal code enforcement over the last several years, and these increases are projected to continue. Of the $11.07 million in general fund revenue the City collected in fiscal year 2010, $1.38 million came from fines and fees collected by the court; similarly, in fiscal year 2011, the City’s general fund revenue of $11.44 million included $1.41 million from fines and fees. In its budget for fiscal year 2012, however, the City predicted that revenue from municipal fines and fees would increase over 30% from the previous year’s amount to $1.92 million; the court exceeded that target, collecting $2.11 million. In its budget for fiscal year 2013, the City budgeted for fines and fees to yield $2.11 million; the court exceeded that target as well, collecting $2.46 million. For 2014, the City budgeted for the municipal court to generate $2.63 million in revenue. The City has not yet made public the actual revenue collected that year, although budget documents forecasted lower revenue than
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was budgeted. Nonetheless, for fiscal year 2015, the City’s budget anticipates fine and fee revenues to account for $3.09 million of a projected $13.26 million in general fund revenues.8
City, police, and court officials for years have worked in concert to maximize revenue at every stage of the enforcement process, beginning with how fines and fine enforcement processes are established. In a February 2011 report requested by the City Council at a Financial Planning Session and drafted by Ferguson’s Finance Director with contributions from Chief Jackson, the Finance Director reported on “efforts to increase efficiencies and maximize collection” by the municipal court. The report included an extensive comparison of Ferguson’s fines to those of surrounding municipalities and noted with approval that Ferguson’s fines are “at or near the top of the list.” The chart noted, for example, that while other municipalities’ parking fines generally range from $5 to $100, Ferguson’s is $102. The chart noted also that the charge for “Weeds/Tall Grass” was as little as $5 in one city but, in Ferguson, it ranged from $77 to $102. The report stated that the acting prosecutor had reviewed the City’s “high volume offenses” and “started recommending higher fines on these cases, and recommending probation only infrequently.” While the report stated that this recommendation was because of a “large volume of non-compliance,” the recommendation was in fact emphasized as one of several ways that the code enforcement system had been honed to produce more revenue.
In combination with a high fine schedule, the City directs FPD to aggressively enforce the municipal code. City and police leadership pressure officers to write citations, independent of any public safety need, and rely on citation productivity to fund the City budget. In an email from March 2010, the Finance Director wrote to Chief Jackson that “unless ticket writing ramps up significantly before the end of the year, it will be hard to significantly raise collections next year. What are your thoughts? Given that we are looking at a substantial sales tax shortfall, it’s not an insignificant issue.” Chief Jackson responded that the City would see an increase in fines once more officers were hired and that he could target the $1.5 million forecast. Significantly, Chief Jackson stated that he was also “looking at different shift schedules which will place more officers on the street, which in turn will increase traffic enforcement per shift.” Shortly thereafter, FPD switched to the 12-hour shift schedule for its patrol officers, which FPD continues to use. Law enforcement experience has shown that this schedule makes community policing more difficult—a concern that we have also heard directly from FPD officers. Nonetheless, while FPD heavily considered the revenue implications of the 12-hour shift and certain other factors such as its impact on overtime and sick time usage, we have found no evidence that FPD considered the consequences for positive community engagement. The City’s 2014 budget itself stated that since December 2010, “the percent of [FPD] resources allocated to traffic enforcement has increased,” and “[a]s a result, traffic enforcement related collections increased” in the following two years. The 2015 budget added that even after those initial increases, in fiscal year 2012-2013, FPD was once again “successful in increasing their proportion of resources dedicated to traffic enforcement” and increasing collections.
8 Each of these yearly totals excludes certain court fees that are designated for particular purposes, but that nonetheless are paid directly to the City. For example, $2 of the court fee that accompanies every citation for a municipal code violation is set aside to be used for police training. That fee is used only by the City of Ferguson and is deposited in the City’s general fund; nonetheless, the City’s budget does not include that fee in its totals for “municipal court” revenue. In 2012 and 2013, the police training fee brought in, respectively, another $24,724 and $22,938 in revenue.
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As directed, FPD supervisors and line officers have undertaken the aggressive code enforcement required to meet the City’s revenue generation expectations. As discussed below in Part III.A., FPD officers routinely conduct stops that have little relation to public safety and a questionable basis in law. FPD officers routinely issue multiple citations during a single stop, often for the same violation. Issuing three or four charges in one stop is not uncommon in Ferguson. Officers sometimes write six, eight, or, in at least one instance, fourteen citations for a single encounter. Indeed, officers told us that some compete to see who can issue the largest number of citations during a single stop.
The February 2011 report to the City Council notes that the acting prosecutor—with the apparent approval of the Police Chief—“talked with police officers about ensuring all necessary summonses are written for each incident, i.e. when DWI charges are issued, are the correct companion charges being issued, such as speeding, failure to maintain a single lane, no insurance, and no seat belt, etc.” The prosecutor noted that “[t]his is done to ensure that a proper resolution to all cases is being achieved and that the court is maintaining the correct volume for offenses occurring within the city.” Notably, the “correct volume” of law enforcement is uniformly presented in City documents as related to revenue generation, rather than in terms of what is necessary to promote public safety.9 Each month, the municipal court provides FPD supervisors with a list of the number of tickets issued by each officer and each squad. Supervisors have posted the list inside the police station, a tactic officers say is meant to push them to write more citations.
The Captain of FPD’s Patrol Division regularly communicates with his Division commanders regarding the need to increase traffic “productivity,” and productivity is a common topic at squad meetings. Patrol Division supervisors monitor productivity through monthly “self-initiated activity reports” and instruct officers to increase production when those reports show they have not issued enough citations. In April 2010, for example, a patrol supervisor criticized a sergeant for his squad only issuing 25 tickets in a month, including one officer who issued “a grand total” of 11 tickets to six people on three days “devoted to traffic stops.” In November 2011, the same patrol supervisor wrote to his patrol lieutenants and sergeants that “[t]he monthly self-initiated activity totals just came out,” and they “may want to advise [their] officers who may be interested in the open detective position that one of the categories to be considered when deciding on the eligibility list will be self-initiated activity.” The supervisor continued: “Have any of you heard comments such as, why should I produce when I know I’m not getting a raise? Well, some people are about to find out why.” The email concludes with the instruction to “[k]eep in mind, productivity (self-initiated activity) cannot decline for next year.”
FPD has communicated to officers not only that they must focus on bringing in revenue, but that the department has little concern with how officers do this. FPD’s weak systems of supervision, review, and accountability, discussed below in Part III.A., have sent a potent message to officers that their violations of law and policy will be tolerated, provided that officers
9 FPD’s financial focus has also led FPD to elevate municipal enforcement over state-law enforcement. Even where individuals commit violations of state law, if there is an analogous municipal code provision, the police department will nearly always charge the offense under municipal law. A senior member of FPD’s command told us that all Ferguson police officers understand that, when a fine is the likely punishment, municipal rather than state charges should be pursued so that Ferguson will reap the financial benefit.
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continue to be “productive” in making arrests and writing citations. Where officers fail to meet productivity goals, supervisors have been instructed to alter officer assignments or impose discipline. In August 2012, the Captain of the Patrol Division instructed other patrol supervisors that, “[f]or those officers who are not keeping up an acceptable level of productivity and they have already been addressed at least once if not multiple times, take it to the next level.” He continued: “As we have discussed already, regardless of the seniority and experience take the officer out of the cover car position and assign them to prisoner pick up and bank runs. . . . Failure to perform can result in disciplinary action not just a bad evaluation.” Performance evaluations also heavily emphasize productivity. A June 2013 evaluation indicates one of the “Performance-Related Areas of Improvements” as “Increase/consistent in productivity, the ability to maintain an average ticket [sic] of 28 per month.”
Not all officers within FPD agree with this approach. Several officers commented on the futility of imposing mounting penalties on people who will never be able to afford them. One member of FPD’s command staff quoted an old adage, asking: “How can you get blood from a turnip?” Another questioned why FPD did not allow residents to use their limited resources to fix equipment violations, such as broken headlights, rather than paying that money to the City, as fixing the equipment violation would more directly benefit public safety.10
However, enough officers—at all ranks—have internalized this message that a culture of reflexive enforcement action, unconcerned with whether the police action actually promotes public safety, and unconcerned with the impact the decision has on individual lives or community trust as a whole, has taken hold within FPD. One commander told us, for example, that when he admonished an officer for writing too many tickets, the officer challenged the commander, asking if the commander was telling him not to do his job. When another commander tried to discipline an officer for over-ticketing, he got the same response from the Chief of Police: “No discipline for doing your job.”
The City closely monitors whether FPD’s enforcement efforts are bringing in revenue at the desired rate. Consistently over the last several years, the Police Chief has directly reported to City officials FPD’s successful efforts at raising revenue through policing, and City officials have continued to encourage those efforts and request regular updates. For example, in June 2010, at the request of the City, the Chief prepared a report comparing court revenues in Ferguson to court revenues for cities of similar sizes. The Chief’s email sending the report to the City Manager notes that, “of the 80 St. Louis County Municipal Courts reporting revenue, only 8, including Ferguson, have collections greater than one million dollars.” In the February 2011 report referenced above, Chief Jackson discussed various obstacles to officers writing tickets in previous months, such as training, injury leave, and officer deployment to Iraq, but noted that those factors had subsided and that, as a result, revenues were increasing. The acting prosecutor echoed these statements, stating “we now have several new officers writing tickets, and as a result our overall ticket volume is increasing by 400-700 tickets per month. This increased volume will lead to larger dockets this year and should have a direct effect in increasing overall revenue to the municipal court.”
10 After a recommendation we made during this investigation, Ferguson has recently begun a very limited “correctable violation” or “fix-it” ticket program, under which charges for certain violations can be dismissed if corrected within a certain period of time.
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Similarly, in March 2011, the Chief reported to the City Manager that court revenue in February was $179,862.50, and that the total “beat our next biggest month in the last four years by over $17,000,” to which the City Manager responded: “Wonderful!” In a June 2011 email from Chief Jackson to the Finance Director and City Manager, the Chief reported that “May is the 6th straight month in which court revenue (gross) has exceeded the previous year.” The City Manager again applauded the Chief’s efforts, and the Finance Director added praise, noting that the Chief is “substantially in control of the outcome.” The Finance Director further recommended in this email greater police and judicial enforcement to “have a profound effect on collections.” Similarly, in a January 2013 email from Chief Jackson to the City Manager, the Chief reported: “Municipal Court gross revenue for calendar year 2012 passed the $2,000,000 mark for the first time in history, reaching $2,066,050 (not including red light photo enforcement).” The City Manager responded: “Awesome! Thanks!” In one March 2012 email, the Captain of the Patrol Division reported directly to the City Manager that court collections in February 2012 reached $235,000, and that this was the first month collections ever exceeded $200,000. The Captain noted that “[t]he [court clerk] girls have been swamped all day with a line of people paying off fines today. Since 9:30 this morning there hasn’t been less than 5 people waiting in line and for the last three hours 10 to 15 people at all times.” The City Manager enthusiastically reported the Captain’s email to the City Council and congratulated both police department and court staff on their “great work.”
Even as officers have answered the call for greater revenue through code enforcement, the City continues to urge the police department to bring in more money. In a March 2013 email, the Finance Director wrote: “Court fees are anticipated to rise about 7.5%. I did ask the Chief if he thought the PD could deliver 10% increase. He indicated they could try.” Even more recently, the City’s Finance Director stated publicly that Ferguson intends to make up a 2014 revenue shortfall in 2015 through municipal code enforcement, stating to Bloomberg News that “[t]here’s about a million-dollar increase in public-safety fines to make up the difference.”11 The City issued a statement to “refute[]” the Bloomberg article in part because it “insinuates” an “over reliance on municipal court fines as a primary source of revenues when in fact they represented less than 12% of city revenues for the last fiscal year.” But there is no dispute that the City budget does, in fact, forecast an increase of nearly a million dollars in municipal code enforcement fines and fees in 2015 as reported in the Bloomberg News report.
The City goes so far as to direct FPD to develop enforcement strategies and initiatives, not to better protect the public, but to raise more revenue. In an April 2014 communication from the Finance Director to Chief Jackson and the City Manager, the Finance Director recommended immediate implementation of an “I-270 traffic enforcement initiative” in order to “begin to fill the revenue pipeline.” The Finance Director’s email attached a computation of the net revenues that would be generated by the initiative, which required paying five officers overtime for highway traffic enforcement for a four-hour shift. The Finance Director stated that “there is nothing to keep us from running this initiative 1,2,3,4,5,6, or even 7 days a week. Admittedly at 7 days per week[] we would see diminishing returns.” Indeed, in a separate email to FPD
11 Katherine Smith, Ferguson to Increase Police Ticketing to Close City’s Budget Gap, Bloomberg News (Dec. 12, 2014), http://www.bloomberg.com/news/articles/2014-12-12/ferguson-to-increase-police-ticketing-to-close-city-sbudget-gap.
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supervisors, the Patrol Captain explained that “[t]he plan behind this [initiative] is to PRODUCE traffic tickets, not provide easy OT.” There is no indication that anyone considered whether community policing and public safety would be better served by devoting five overtime officers to neighborhood policing instead of a “revenue pipeline” of highway traffic enforcement. Rather, the only downsides to the program that City officials appear to have considered are that “this initiative requires 60 to 90 [days] of lead time to turn citations into cash,” and that Missouri law caps the proportion of revenue that can come from municipal fines at 30%, which limits the extent to which the program can be used. See Mo. Rev. Stat. § 302.341.2. With regard to the statewide-cap issue, the Finance Director advised: “As the RLCs [Red Light Cameras] net revenues ramp up to whatever we believe its annualized rate will be, then we can figure out how to balance the two programs to get their total revenues as close as possible to the statutory limit of 30%.”12
The City has made clear to the Police Chief and the Municipal Judge that revenue generation must also be a priority in court operations. The Finance Director’s February 2011 report to the City Council notes that “Judge Brockmeyer was first appointed in 2003, and during this time has been successful in significantly increasing court collections over the years.” The report includes a list of “what he has done to help in the areas of court efficiency and revenue.” The list, drafted by Judge Brockmeyer, approvingly highlights the creation of additional fees, many of which are widely considered abusive and may be unlawful, including several that the City has repealed during the pendency of our investigation. These include a $50 fee charged each time a person has a pending municipal arrest warrant cleared, and a “failure to appear fine,” which the Judge noted is “increased each time the Defendant fails to appear in court or pay a fine.” The Judge also noted increasing fines for repeat offenders, “especially in regard to housing violations, [which] have increased substantially and will continue to be increased upon subsequent violations.” The February 2011 report notes Judge Brockmeyer’s statement that “none of these changes could have taken place without the cooperation of the Court Clerk, the Chief of Police, and the Prosecutor’s Office.” Indeed, the acting prosecutor noted in the report that “I have denied defendants’ needless requests for continuance from the payment docket in an effort to aid in the court’s efficient collection of its fines.”
Court staff are keenly aware that the City considers revenue generation to be the municipal court’s primary purpose. Revenue targets for court fines and fees are created in consultation not only with Chief Jackson, but also the Court Clerk. In one April 2010 exchange with Chief Jackson entitled “2011 Budget,” for example, the Finance Director sought and received confirmation that the Police Chief and the Court Clerk would prepare targets for the court’s fine and fee collections for subsequent years. Court staff take steps to ensure those targets are met in operating court. For example, in April 2011, the Court Clerk wrote to Judge
12 Ferguson officials have asserted that in the last fiscal year revenue from the municipal court comprised only 12% of City revenue, but they have not made clear how they calculated this figure. It appears that 12% is the proportion of Ferguson’s total revenue (forecasted to amount to $18.62 million in 2014) derived from fines and fees (forecasted to be $2.09 million in 2014). Guidelines issued by the Missouri State Auditor in December 2014 provide, however, that the 30% cap outlined in Mo. Rev. Stat. § 302.341.2 imposes a limit on the makeup of fines and fees in general use revenue, excluding any revenue designated for a particular purpose. Notably, the current 30% state cap only applies to fines and fees derived from “traffic violations.” It thus appears that, for purposes of the state cap, Ferguson must ensure that its traffic-related fines and fees do not exceed 30% of its “General Fund” revenue. In 2014, Ferguson’s General Fund revenue was forecasted to be $12.33 million.
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Brockmeyer (copying Chief Jackson) that the fines the new Prosecuting Attorney was recommending were not high enough. The Clerk highlighted one case involving three Derelict Vehicle charges and a Failure to Comply charge that resulted in $76 in fines, and noted this “normally would have brought a fine of all three charges around $400.” After describing another case that she believed warranted higher fines, the Clerk concluded: “We need to keep up our revenue.” There is no indication that ability to pay or public safety goals were considered.
The City has been aware for years of concerns about the impact its focus on revenue has had on lawful police action and the fair administration of justice in Ferguson. It has disregarded those concerns—even concerns raised from within the City government—to avoid disturbing the court’s ability to optimize revenue generation. In 2012, a Ferguson City Councilmember wrote to other City officials in opposition to Judge Brockmeyer’s reappointment, stating that “[the Judge] 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.” The Councilmember then addressed the concern that “switching judges would/could lead to loss of revenue,” arguing that even if such a switch did “lead to a slight loss, I think it’s more important that cases are being handled properly and fairly.” The City Manager acknowledged mixed reviews of the Judge’s work but urged that the Judge be reappointed, noting that “[i]t goes without saying the City cannot afford to lose any efficiency in our Courts, nor experience any decrease in our Fines and Forfeitures.”
IV. FERGUSON LAW ENFORCEMENT PRACTICES VIOLATE THE LAW AND UNDERMINE COMMUNITY TRUST, ESPECIALLY AMONG AFRICAN AMERICANS
Ferguson’s strategy of revenue generation through policing has fostered practices in the two central parts of Ferguson’s law enforcement system—policing and the courts—that are themselves unconstitutional or that contribute to constitutional violations. In both parts of the system, these practices disproportionately harm African Americans. Further, the evidence indicates that this harm to African Americans stems, at least in part, from racial bias, including racial stereotyping. Ultimately, unlawful and harmful practices in policing and in the municipal court system erode police legitimacy and community trust, making policing in Ferguson less fair, less effective at promoting public safety, and less safe.
A. Ferguson’s Police Practices
FPD’s approach to law enforcement, shaped by the City’s pressure to raise revenue, has resulted in a pattern and practice of constitutional violations. Officers violate the Fourth Amendment in stopping people without reasonable suspicion, arresting them without probable cause, and using unreasonable force. Officers frequently infringe on residents’ First Amendment rights, interfering with their right to record police activities and making enforcement decisions based on the content of individuals’ expression.
FPD’s lack of systems to detect and hold officers responsible for misconduct reflects the department’s focus on revenue generation at the expense of lawful policing and helps perpetuate the patterns of unconstitutional conduct we found. FPD fails to adequately supervise officers or review their enforcement actions. While FPD collects vehicle-stop data because it is required to
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do so by state law, it collects no reliable or consistent data regarding pedestrian stops, even though it has the technology to do so.13 In Ferguson, officers will sometimes make an arrest without writing a report or even obtaining an incident number, and hundreds of reports can pile up for months without supervisors reviewing them. Officers’ uses of force frequently go unreported, and are reviewed only laxly when reviewed at all. As a result of these deficient practices, stops, arrests, and uses of force that violate the law or FPD policy are rarely detected and often ignored when they are discovered.
1. FPD Engages in a Pattern of Unconstitutional Stops and Arrests in Violation of the Fourth Amendment
FPD’s approach to law enforcement has led officers to conduct stops and arrests that violate the Constitution. We identified several elements to this pattern of misconduct. Frequently, officers stop people without reasonable suspicion or arrest them without probable cause. Officers rely heavily on the municipal “Failure to Comply” charge, which appears to be facially unconstitutional in part, and is frequently abused in practice. FPD also relies on a system of officer-generated arrest orders called “wanteds” that circumvents the warrant system and poses a significant risk of abuse. The data show, moreover, that FPD misconduct in the area of stops and arrests disproportionately impacts African Americans.
a. FPD Officers Frequently Detain People Without Reasonable Suspicion and Arrest People Without Probable Cause
The Fourth Amendment protects individuals from unreasonable searches and seizures. Generally, a search or seizure is unreasonable “in the absence of individualized suspicion of wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). The Fourth Amendment permits law enforcement officers to briefly detain individuals for investigative purposes if the officers possess reasonable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 21 (1968). Reasonable suspicion exists when an “officer is aware of particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed.” United States v. Givens, 763 F.3d 987, 989 (8th Cir. 2014) (internal quotation marks omitted). In addition, if the officer reasonably believes the person with whom he or she is dealing is armed and dangerous, the officer may conduct a protective search or frisk of the person’s outer clothing. United States v. Cotter, 701 F.3d 544, 547 (8th Cir. 2012). Such a search is not justified on the basis of “inchoate and unparticularized suspicion;” rather, the “issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. (quoting Terry, 392 U.S. at 27). For an arrest to constitute a reasonable seizure under the Fourth Amendment, it must be supported by probable cause, which exists only if “the totality of facts based on reasonably trustworthy information would justify a prudent person in believing the individual arrested had
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.
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committed an offense at the time of the arrest.” Stoner v. Watlingten, 735 F.3d 799, 803 (8th Cir. 2013).

Under Missouri law, when making an arrest, “[t]he officer must inform the defendant by what authority he acts, and must also show the warrant if required.” Mo. Rev. Stat. § 544.180. In reviewing FPD records, we found numerous incidents in which—based on the officer’s own description of the detention—an officer detained an individual without articulable reasonable suspicion of criminal activity or arrested a person without probable cause. In none of these cases did the officer explain or justify his conduct.

For example, in July 2013 police encountered an African-American man in a parking lot while on their way to arrest someone else at an apartment building. Police knew that the encountered man was not the person they had come to arrest. Nonetheless, without even reasonable suspicion, they handcuffed the man, placed him in the back of a patrol car, and ran his record. It turned out he was the intended arrestee’s landlord. The landlord went on to help the police enter the person’s unit to effect the arrest, but he later filed a complaint alleging racial discrimination and unlawful detention. Ignoring the central fact that they had handcuffed a man and put him in a police car despite having no reason to believe he had done anything wrong, a sergeant vigorously defended FPD’s actions, characterizing the detention as “minimal” and pointing out that the car was air conditioned. Even temporary detention, however, constitutes a deprivation of liberty and must be justified under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10 (1996).

Many of the unlawful stops we found appear to have been driven, in part, by an officer’s desire to check whether the subject had a municipal arrest warrant pending. Several incidents suggest that officers are more concerned with issuing citations and generating charges than with addressing community needs. In October 2012, police officers pulled over an African-American man who had lived in Ferguson for 16 years, claiming that his passenger-side brake light was broken. The driver happened to have replaced the light recently and knew it to be functioning properly. Nonetheless, according to the man’s written complaint, one officer stated, “let’s see how many tickets you’re going to get,” while a second officer tapped his Electronic Control Weapon (“ECW”) on the roof of the man’s car. The officers wrote the man a citation for “tail light/reflector/license plate light out.” They refused to let the man show them that his car’s equipment was in order, warning him, “don’t you get out of that car until you get to your house.” The man, who believed he had been racially profiled, was so upset that he went to the police station that night to show a sergeant that his brakes and license plate light worked.

At times, the constitutional violations are even more blatant. An African-American man recounted to us an experience he had while sitting at a bus stop near Canfield Drive. According to the man, an FPD patrol car abruptly pulled up in front of him. The officer inside, a patrol lieutenant, rolled down his window and addressed the man:

Lieutenant: Bus Patron: Lieutenant: Bus Patron:

Get over here. Me? Get the f*** over here. Yeah, you. Why? What did I do?

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Lieutenant: Give me your ID. Bus Patron: Why? Lieutenant: Stop being a smart ass and give me your ID.
The lieutenant ran the man’s name for warrants. Finding none, he returned the ID and said, “get the hell out of my face.” These allegations are consistent with other, independent allegations of misconduct that we heard about this particular lieutenant, and reflect the routinely disrespectful treatment many African Americans say they have come to expect from Ferguson police. That a lieutenant with supervisory responsibilities allegedly engaged in this conduct is further cause for concern.
This incident is also consistent with a pattern of suspicionless, legally unsupportable stops we found documented in FPD’s records, described by FPD as “ped checks” or “pedestrian checks.” Though at times officers use the term to refer to reasonable-suspicion-based pedestrian stops, or “Terry stops,” they often use it when stopping a person with no objective, articulable suspicion. For example, one night in December 2013, officers went out and “ped. checked those wandering around” in Ferguson’s apartment complexes. In another case, officers responded to a call about a man selling drugs by stopping a group of six African-American youths who, due to their numbers, did not match the facts of the call. The youths were “detained and ped checked.” Officers invoke the term “ped check” as though it has some unique constitutional legitimacy. It does not. Officers may not detain a person, even briefly, without articulable reasonable suspicion. Terry, 392 U.S. at 21. To the extent that the words “ped check” suggest otherwise, the terminology alone is dangerous because it threatens to confuse officers’ understanding of the law. Moreover, because FPD does not track or analyze pedestrian Terry stops—whether termed “ped checks” or something else—in any reliable way, they are especially susceptible to discriminatory or otherwise unlawful use.
As with its pattern of unconstitutional stops, FPD routinely makes arrests without probable cause. Frequently, officers arrest people for conduct that plainly does not meet the elements of the cited offense. For example, in November 2013, an officer approached five African-American young people listening to music in a car. Claiming to have smelled marijuana, the officer placed them under arrest for disorderly conduct based on their “gathering in a group for the purposes of committing illegal activity.” The young people were detained and charged—some taken to jail, others delivered to their parents—despite the officer finding no marijuana, even after conducting an inventory search of the car. Similarly, in February 2012, an officer wrote an arrest notification ticket for Peace Disturbance for “loud music” coming from a car. The arrest ticket appears unlawful as the officer did not assert, and there is no other indication, that a third party was disturbed by the music—an element of the offense. See Ferguson Mun. Code § 29-82 (prohibiting certain conduct that “unreasonably and knowingly disturbs or alarms another person or persons”). Nonetheless, a supervisor approved it. These warrantless arrests violated the Fourth Amendment because they were not based on probable cause. See Virginia v. Moore, 553 U.S. 164, 173 (2008).
While the record demonstrates a pattern of stops that are improper from the beginning, it also exposes encounters that start as constitutionally defensible but quickly cross the line. For example, in the summer of 2012, an officer detained a 32-year-old African-American man who
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was sitting in his car cooling off after playing basketball. The officer arguably had grounds to stop and question the man, since his windows appeared more deeply tinted than permitted under Ferguson’s code. Without cause, the officer went on to accuse the man of being a pedophile, prohibit the man from using his cell phone, order the man out of his car for a pat-down despite having no reason to believe he was armed, and ask to search his car. When the man refused, citing his constitutional rights, the officer reportedly pointed a gun at his head, and arrested him. The officer charged the man with eight different counts, including making a false declaration for initially providing the short form of his first name (e.g., “Mike” instead of “Michael”) and an address that, although legitimate, differed from the one on his license. The officer also charged the man both with having an expired operator’s license, and with having no operator’s license in possession. The man told us he lost his job as a contractor with the federal government as a result of the charges.
b. FPD Officers Routinely Abuse the “Failure to Comply” Charge
One area of FPD activity deserves special attention for its frequency of Fourth Amendment violations: enforcement of Ferguson’s Failure to Comply municipal ordinance.14 Ferguson Mun. Code § 29-16. Officers rely heavily on this charge to arrest individuals who do not do what they ask, even when refusal is not a crime. The offense is typically charged under one of two subsections. One subsection prohibits disobeying a lawful order in a way that hinders an officer’s duties, § 29-16(1); the other requires individuals to identify themselves, § 29-16(2). FPD engages in a pattern of unconstitutional enforcement with respect to both, resulting in many unlawful arrests.
i. Improper Enforcement of Code Provision Prohibiting Disobeying a Lawful Order
Officers frequently arrest individuals under Section 29-16(1) on facts that do not meet the provision’s elements. Section 29-16(1) makes it unlawful to “[f]ail to comply with the lawful order or request of a police officer in the discharge of the officer’s official duties where such failure interfered with, obstructed or hindered the officer in the performance of such duties.” Many cases initiated under this provision begin with an officer ordering an individual to stop despite lacking objective indicia that the individual is engaged in wrongdoing. The order to stop is not a “lawful order” under those circumstances because the officer lacks reasonable suspicion that criminal activity is afoot. See United States v. Brignoni-Ponce, 422 U.S. 873, 882-83 (1975); United States v. Jones, 606 F.3d 964, 967-68 (8th Cir. 2010). Nonetheless, when individuals do not stop in those situations, FPD officers treat that conduct as a failure to comply with a lawful order, and make arrests. Such arrests violate the Fourth Amendment because they are not based on probable cause that the crime of Failure to Comply has been committed. Dunaway v. New York, 442 U.S. 200, 208 (1979).
FPD officers apply Section 29-16(1) remarkably broadly. In an incident from August 2010, an officer broke up an altercation between two minors and sent them back to their homes. The officer ordered one to stay inside her residence and the other not to return to the first’s
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.”
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residence. Later that day, the two minors again engaged in an altercation outside the first minor’s residence. The officer arrested both for Failure to Comply with the earlier orders. But Section 29-16(1) does not confer on officers the power to confine people to their homes or keep them away from certain places based solely on their verbal orders. At any rate, the facts of this incident do not satisfy the statute for another reason: there was no evidence that the failure to comply “interfered with, obstructed or hindered the officer in the performance” of official duties. § 29-16(1). The officer’s arrest of the two minors for Failure to Comply without probable cause of all elements of the offense violated the Fourth Amendment.
ii. Improper Enforcement of Code Provision Requiring Individuals to Identify Themselves to a Police Officer
FPD’s charging under Section 29-16(2) also violates the Constitution. Section 29-16(2) makes it unlawful to “[f]ail to give information requested by a police officer in the discharge of his/her official duties relating to the identity of such person.” This provision, a type of “stopand-identify” law, is likely unconstitutional under the void-for-vagueness doctrine. It is also unconstitutional as typically applied by FPD.
As the Supreme Court has explained, the void-for-vagueness doctrine “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). In Kolender, the Supreme Court invalidated a California stop-and-identify law as unconstitutionally vague because its requirement that detained persons give officers “credible and reliable” identification provided no standard for what a suspect must do to comply with it. Instead, the law “vest[ed] complete discretion in the hands of the police” to determine whether a person had provided sufficient identity information, which created a “potential for arbitrarily suppressing First Amendment liberties” and “the constitutional right to freedom of movement.” Id. at 358. The Eighth Circuit has applied the doctrine numerous times. In Fields v. City of Omaha, 810 F.2d 830 (8th Cir. 1987), the court struck down a city ordinance that required a person to “identify himself” because it did not make definite what would suffice for identification and thereby provided no “standard to guide the police officer’s discretionary assessment” or “prevent arbitrary and discriminatory law enforcement.” Id. at 833-34; see also Stahl v. City of St. Louis, 687 F.3d 1038, 1040 (8th Cir. 2012) (holding that an ordinance prohibiting conduct that would impede traffic was unconstitutionally vague under the Due Process Clause because it “may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits”) (internal quotation marks omitted).
Under these binding precedents, Ferguson’s stop-and-identify law appears to be unconstitutionally vague because the term “information . . . relating to the identity of such person” in Section 29-16(2) is not defined. Neither the ordinance nor any court has narrowed that language. Cf. Hiibel v. Sixth Judicial Dist. Ct. of Nevada, 542 U.S. 177, 188-89 (2004) (upholding stop-and-identify law that was construed by the state supreme court to require only that a suspect provide his name). As a consequence, the average person has no understanding of precisely how much identity information, and what kind, he or she must provide when an FPD officer demands it; nor do officers. Indeed, we are aware of several people who were asked to provide their Social Security numbers, including one man who was arrested after refusing to do
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so. Given that the ordinance appears to lend itself to such arbitrary enforcement, Section 2916(2) is likely unconstitutional on its face.15
Even apart from the facial unconstitutionality of the statute, the evidence is clear that FPD’s enforcement of Section 29-16(2) is unconstitutional in its application. Stop-and-identify laws stand in tension with the Supreme Court’s admonition that a person approached by a police officer “need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.” Florida v. Royer, 460 U.S. 491, 497-98 (1983). For this reason, the Court has held that an officer cannot require a person to identify herself unless the officer first has reasonable suspicion to initiate the stop. See Brown v. Texas, 443 U.S. 47, 52-53 (1979) (holding that the application of a Texas statute that criminalized refusal to provide a name and address to a peace officer violated the Fourth Amendment where the officer lacked reasonable suspicion of criminal activity); see also Hiibel, 542 U.S. at 184 (deeming the reasonable suspicion requirement a “constitutional limitation[]” on stop-and-identify statutes). FPD officers, however, routinely arrest individuals under Section 29-16(2) for failure to identify themselves despite lacking reasonable suspicion to stop them in the first place.
For example, in an October 2011 incident, an officer arrested two sisters who were backing their car into their driveway. The officer claimed that the car had been idling in the middle of the street, warranting investigation, while the women claim they had pulled up outside their home to drop someone off when the officer arrived. In any case, the officer arrested one sister for failing to provide her identification when requested. He arrested the other sister for getting out of the car after being ordered to stay inside. The two sisters spent the next three hours in jail. In a similar incident from December 2011, police officers approached two people sitting in a car on a public street and asked the driver for identification. When the driver balked, insisting that he was on a public street and should not have to answer questions, the officers ordered him out of the car and ultimately charged him with Failure to Comply.
In another case, from March 2013, officers responded to the police station to take custody of a person wanted on a state warrant. When they arrived, they encountered a different man— not the subject of the warrant—who happened to be leaving the station. Having nothing to connect the man to the warrant subject, other than his presence at the station, the officers nonetheless stopped him and asked that he identify himself. The man asserted his rights, asking the officers “Why do you need to know?” and declining to be frisked. When the man then extended his identification toward the officers, at their request, the officers interpreted his hand motion as an attempted assault and took him to the ground. Without articulating reasonable suspicion or any other justification for the initial detention, the officers arrested the man on two counts of Failure to Comply and two counts of Resisting Arrest.
In our conversations with FPD officers, one officer admitted that when he conducts a traffic stop, he asks for identification from all passengers as a matter of course. If any refuses, he considers that to be “furtive and aggressive” conduct and cites—and typically arrests—the
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).
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person for Failure to Comply. The officer thus acknowledged that he regularly exceeds his authority under the Fourth Amendment by arresting passengers who refuse, as is their right, to provide identification. See Hiibel, 542 U.S. at 188 (“[A]n officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop.”); Stufflebeam v. Harris, 521 F.3d 884, 887-88 (8th Cir. 2008) (holding that the arrest of a passenger for failure to identify himself during a traffic stop violated the Fourth Amendment where the passenger was not suspected of other criminal activity and his identification was not needed for officer safety). Further, the officer told us that he was trained to arrest for this violation.
Good supervision would correct improper arrests by an officer before they became routine. But in Ferguson, the same dynamics that lead officers to make unlawful stops and arrests cause supervisors to conduct only perfunctory review of officers’ actions—when they conduct any review at all. FPD supervisors are more concerned with the number of citations and arrests officers produce than whether those citations and arrests are lawful or promote public safety. Internal communications among command staff reveal that FPD for years has failed to ensure even that officers write their reports and first-line supervisors approve them. In 2010, a senior police official complained to supervisors that every week reports go unwritten, and hundreds of reports remain unapproved. “It is time for you to hold your officers accountable,” he urged them. In 2014, the official had the same complaint, remarking on 600 reports that had not been approved over a six-month period. Another supervisor remarked that coding errors in the new records management system is set up “to hide, do away with, or just forget reports,” creating a heavy administrative burden for supervisors who discover incomplete reports months after they are created. In practice, not all arrests are given incident numbers, meaning supervisors may never know to review them. These systemic deficiencies in oversight are consistent with an approach to law enforcement in which productivity and revenue generation, rather than lawful policing, are the priority. Thus, even as commanders exhort line supervisors to more closely supervise officer activity, they perpetuate the dynamics that discourage meaningful supervision.
c. FPD’s Use of a Police-run “Wanted” System Circumvents Judicial Review and Poses the Risk of Abuse
FPD and other law enforcement agencies in St. Louis County use a system of “wanteds” or “stop orders” as a substitute for seeking judicial approval for an arrest warrant. When officers believe a person has committed a crime but are not able to immediately locate that person, they can enter a “wanted” into the statewide law enforcement database, indicating to all other law enforcement agencies that the person should be arrested if located. While wanteds are supposed to be based on probable cause, see FPD General Order 424.01, they operate as an end-run around the judicial system. Instead of swearing out a warrant and seeking judicial authorization from a neutral and detached magistrate, officers make the probable cause determination themselves and circumvent the courts. Officers use wanteds for serious state-level crimes and minor code violations alike, including traffic offenses.
FPD command staff express support for the wanted system, extolling the benefits of being able to immediately designate a person for detention. But this expedience carries constitutional risks. If officers enter wanteds into the system on less than probable cause, then
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the subsequent arrest would violate the Fourth Amendment. Our interviews with command staff and officers indicate that officers do not clearly understand the legal authority necessary to issue a wanted. For example, one veteran officer told us he will put out a wanted “if I do not have enough probable cause to arrest you.” He gave the example of investigating a car theft. Upon identifying a suspect, he would put that suspect into the system as wanted “because we do not have probable cause that he stole the vehicle.” Reflecting the muddled analysis officers may employ when deciding whether to issue a wanted, this officer concluded, “you have to have reasonable suspicion and some probable cause to put out a wanted.”
At times, FPD officers use wanteds not merely in spite of a lack of probable cause, but because they lack probable cause. In December 2014, a Ferguson detective investigating a shooting emailed a county prosecutor to see if a warrant for a suspect could be obtained, since “a lot of state agencies won’t act on a wanted.” The prosecutor responded stating that although “[c]hances are” the crime was committed by the suspect, “we just don’t have enough for a warrant right now.” The detective responded that he would enter a wanted.
There is evidence that the use of wanteds has resulted in numerous unconstitutional arrests in Ferguson. Internal communications reveal problems with FPD officers arresting individuals on wanteds without first confirming that the wanteds are still valid. In 2010, for instance, an FPD supervisor wrote that “[a]s of late we have had subjects arrested that were wanted for other agencies brought in without being verified first. You guessed it, come to find out they were no longer wanted by the agencies and had to be released.” The same supervisor told us that in 2014 he cleared hundreds of invalid wanteds from the system, some of them over ten years old, suggesting that invalid wanteds have been an ongoing problem.
Wanteds can also be imprecise, leading officers to arrest in violation of the Fourth Amendment. For example, in June 2011, officers arrested a man at gunpoint because the car he was driving had an active wanted “on the vehicle and its occupants” in connection with an alleged theft. In fact, the theft was alleged to have been committed by the man’s brother. Nonetheless, according to FPD’s files, the man was arrested solely on the basis of the wanted.
This system creates the risk that wanteds could be used improperly to develop evidence necessary for arrest rather than to secure a person against whom probable cause already exists. Several officers described wanteds as an investigatory tool. According to Chief Jackson, “a wanted allows us to get a suspect in for booking and potential interrogation.” One purpose, he said, is “to conduct an interview of that person.” While it is perfectly legitimate for officers to try to obtain statements from persons lawfully detained, it is unconstitutional for them to jail individuals on less than probable cause for that purpose. Dunaway, 442 U.S. at 216. One senior supervisor acknowledged that wanteds could be abused. He agreed that the potential exists, for example, for an officer to pressure a subject into speaking voluntarily to avoid being arrested. These are risks that the judicially-reviewed warrant process is meant to avoid.
Compounding our concern is the minimal training and supervision provided on when to issue a wanted, and the lack of any meaningful oversight to detect and respond to improperly issued wanteds. Some officers told us that they may have heard about wanteds in the training academy. Others said that they received no formal training on wanteds and learned about them
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from their field training officers. As for supervision, officers are supposed to get authorization from their supervisors before entering a wanted into a law enforcement database. They purportedly do this by providing the factual basis for probable cause to their supervisors, orally or in their written reports. However, several supervisors and officers we spoke with acknowledged that this supervisory review routinely does not happen. Further, the supervisors we interviewed told us that they had never declined to authorize a wanted.
Finally, a Missouri appellate court has highlighted the constitutional risks of relying on a wanted as the basis for an arrest. In State v. Carroll, 745 S.W.2d 156 (Mo. Ct. App. 1987), the court held that a robbery suspect was arrested without probable cause when Ferguson and St. Louis police officers picked him up on a wanted for leaving the scene of an accident. Id. at 158. The officers then interrogated him three times at two different police stations, and he eventually made incriminating statements. Despite the existence of a wanted, the court deemed the initial arrest unconstitutional because “[t]he record . . . fail[ed] to show any facts known to the police at the time of the arrest to support a reasonable belief that defendant had committed a crime.” Id. Carroll highlights the fact that wanteds do not confer an authority equal to a judicial arrest warrant. Rather, the Carroll court’s holding suggests that wanteds may be of unknown reliability and thus insufficient to permit custodial detention under the Fourth Amendment. See also Steven J. Mulroy, “Hold” On: The Remarkably Resilient, Constitutionally Dubious 48Hour Hold, 63 Case W. Res. L. Rev. 815, 823, 842-45 (2013) (observing that one problem with police “holds” is that, although they require probable cause, “in practice they often lack it”).
We received complaints from FPD officers that the County prosecutor’s office is too restrictive in granting warrant requests, and that this has necessitated the wanted practice. This investigation did not determine whether the St. Louis County prosecutor is overly restrictive or appropriately cautious in granting warrant requests. What is clear, however, is that current FPD practices have resulted in wanteds being issued and executed without legal basis.
2. 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
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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.16 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.
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”).
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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
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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,”
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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
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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 useof-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-offorce 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, 2014.17 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.18 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 AfricanAmerican 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
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.
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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 AfricanAmerican 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
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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 deescalation 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 AfricanAmerican boy who was waiting in an abandoned house for his friends. Four officers, including a
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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
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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 AfricanAmerican 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
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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 lesslethal 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-
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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
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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 drivestun 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.
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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,19 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-
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/Pages/District-and-School-Information.aspx (last visited Feb. 26, 2015).
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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).
f. FPD’s Weak Oversight of Use of Force Reflects its Lack of Concern for Whether Officer Conduct Is Consistent with the Law or Promotes Police Legitimacy
FPD’s use-of-force review system is particularly ineffectual. Force frequently is not reported. When it is, there is rarely any meaningful review. Supervisors do little to no investigation; either do not understand or choose not to follow FPD’s use-of-force policy in analyzing officer conduct; rarely correct officer misconduct when they find it; and do not see the patterns of abuse that are evident when viewing these incidents in the aggregate.
While Chief Jackson implemented new department policies when he joined FPD in 2010, including on use-of-force reporting and review, these policies are routinely ignored. Under FPD General Order 410.00, when an officer uses or attempts to use any force, a supervisor must respond to the scene to investigate. The supervisor must complete a two-page use-of-force report assessing whether the use of force complied with FPD’s force policy. Additional forms are required for ECW uses and vehicle pursuits. According to policy and our interviews with Chief Jackson, a use-of-force packet is assembled—which should include the use-of-force report and supplemental forms, all police reports, any photographs, and any other supporting materials—and forwarded up the chain of command to the Chief. The force reporting and review system is intended to “help identify trends, improve training and officer safety, and provide timely information for the department addressing use-of-force issues with the public.” FPD General Order 410.07. The policy even requires that a professional standards officer conduct an annual review of all force incidents. Id. These requirements are not adhered to in practice.
Perhaps the greatest deviation from FPD’s use-of-force policies is that officers frequently do not report the force they use at all. There are many indications that this underreporting is widespread. First, we located information in FPD’s internal affairs files indicating instances of force that were not included in the force files provided by FPD. Second, in reviewing randomly selected reports from FPD’s records management system, we found several offense reports that described officers using force with no corresponding use-of-force report. Third, we found evidence that force had been used but not documented in officers’ workers compensation claims. Of the nine cases between 2010 and 2014 in which officers claimed injury sustained from using force on the job, three had no corresponding use-of-force paperwork. Fourth, the set of force investigations provided by FPD contains lengthy gaps, including six stretches of time ranging
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from two to four months in which no incidents of force are reported. Otherwise, the files typically reflect between two and six force incidents per month. Fifth, we heard from community members about uses of force that do not appear within FPD’s records, and we learned of many uses of force that were never officially reported or investigated from reviewing emails between FPD supervisors. Finally, FPD’s force files reflect an overrepresentation of ECW uses—a type of force that creates a physical record (a spent ECW cartridge with discharged confetti) and that requires a separate form be filled out. It is much easier for officers to use physical blows and baton strikes without documenting them. Thus, the evidence indicates that a significant amount of force goes unreported within FPD. This in turn raises the possibility that the pattern of unreasonable force is even greater than we found.
Even when force is reported, the force review process falls so short of FPD’s policy requirements that it is ineffective at improving officer safety or ensuring that force is used properly. First, and most significantly, supervisors almost never actually investigate force incidents. In almost every case, supervisors appear to view force investigations as a ministerial task, merely summarizing the involved officers’ version of events and sometimes relying on the officers’ offense report alone. The supervisory review starts and ends with the presumption that the officer’s version of events is truthful and that the force was reasonable. As a consequence, though contrary to policy, supervisors almost never interview non-police witnesses, such as the arrestee or any independent witnesses. They do not review critical evidence even when it is readily available. For example, a significant portion of the documented uses of force occurs at the Ferguson jail, which employs surveillance cameras to monitor the area. Yet FPD records provide no indication that a supervisor has ever sought to review the footage for a jail incident. Nor do supervisors examine ECW camera video, even though it is available in FPD’s newer model ECWs. Sometimes, supervisors provide no remarks on the use-of-force report, indicating simply, “see offense report.”
Our review found the record to be replete with examples of this lack of meaningful supervisory review of force. For example, the use-of-force report for a May 2013 incident states that a suspect claims he had an ECW deployed against him and that he was punched in the head and face. The supervisor concludes simply, “other than the drive stun, no use of force was performed by the officers.” The report does not clarify what investigation the supervisor did, if any, to assess the suspect’s allegations, or how he determined that the allegations were false. Supervisors also fail to provide recommendations for how to ensure officer safety and minimize the need for force going forward. In January 2014, for instance, a correctional officer used force to subdue an inmate who tried to escape while the correctional officer was moving the inmate’s cellmate to another cell without assistance. The supervisor missed the opportunity to recommend that correctional officers not act alone in such risky situations.
Second, supervisors either do not understand or choose not to follow FPD’s use-of-force policy. As discussed above, in many of the force incidents we reviewed, it is clear from the officers’ offense reports that the force used was, at the very least, contrary to FPD policy. Nonetheless, based on records provided by FPD, it appears that first-line supervisors and the command staff found all but one of the 151 incidents we reviewed to be within policy. This includes the instances of unreasonable ECW use discussed above. FPD policy advises that ECWs are to be used to “overcome active aggression or overt actions of assault.” FPD General
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Order 499.00. They are to be used to “avert[] a potentially injurious or dangerous situation,” and never “punitively or for purposes of coercion.” FPD General Order 499.04. Simply referring back to these policies should have made clear to supervisors that the many uses of ECWs against subjects who were merely argumentative or passively resistant violated policy.
For example, in April 2014, an intoxicated jail detainee climbed up on the bars in his cell and refused to get down when ordered to by the arresting officer and the correctional officer on duty. The correctional officer then fired an ECW at him, from outside the closed cell door, striking the detainee in the chest and causing him to fall to the ground. In addition to being excessive, this force violated explicit FPD policy that “[p]roper consideration and care should be taken when deploying the X26 TASER on subjects who are in an elevated position or in other circumstance where a fall may cause substantial injury or death.” FPD General Order 499.04. The reviewing supervisor deemed the use of force within policy.
Supervisors seem to believe that any level of resistance justifies any level of force. They routinely rely on boilerplate language, such as the statement that the subject took “a fighting stance,” to justify force. Such language is not specific enough to understand the specific behavior the officer encountered and thus to determine whether the officer’s response was reasonable. Indeed, a report from September 2010 shows how such terms may obscure what happened. In that case, the supervisor wrote that the subject “turned to [the officer] in a fighting stance” even though the officer’s report makes clear that he chased and tackled the subject as the subject fled. That particular use of force may have been reasonable, but the use-of-force report reveals how little attention supervisors give to their force investigations. Another common justification, frequently offered by officers who use ECWs to subdue individuals who do not readily put their hands behind their back after being put on the ground, is to claim that a subject’s hands were near his waist, where he might have a weapon. Supervisors tend to accept this justification without question.
Third, the review process breaks down even further when officers at the sergeant level or above use force. Instead of reporting their use of force to an official higher up the chain, who could evaluate it objectively, they complete the use-of-force investigation themselves. We found several examples of supervisors investigating their own conduct. When force investigations are conducted by the very officers involved in the incidents, the department is less likely to identify policy and constitutional violations, and the public is less likely to trust the department’s commitment to policing itself.
Fourth, the failure of supervisors to investigate and the absence of analysis from their use-of-force reports frustrate review up the chain of command. Lieutenants, the assigned captain, and the Police Chief typically receive at most a one- or two-paragraph summary from supervisors; no witness statements, photographs, or video footage that should have been obtained during the investigation is included. These reviewers are left to rely only on the offense report and the sergeant’s cursory summary. To take one example, 21 officers responded to a fight at the high school in March 2013, and several of them used force to take students into custody. FPD records contain only one offense report, which does not describe the actions of all officers who used force. The use-of-force report identifies the involved officers as “multiple” (without names) and provides only a one-paragraph summary stating that students “were grabbed,
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handcuffed, and restrained using various techniques of control.” The offense report reflects that officers collected video from the school’s security cameras, but the supervisor apparently never reviewed it. Further, while the offense report contains witness statements, those statements relate to the underlying fight, not the officer use of force, and there appear to be no statements from any of the 21 officers who responded to the fight. It is not possible for higher-level supervisors to adequately assess uses of force with so little information.
In fact, although a use-of-force packet is supposed to include all related documents, in practice only the two-page use-of-force report, that is, the supervisor’s brief summary of the incident, goes to the Chief. In the example from the high school, then, the Chief would have known only that there was a fight at the school and that force was used—not which officers used force, what type of force was used, or what the students did to warrant the use of force. Offense reports are available in FPD’s records management system, but Chief Jackson told us he rarely retrieves them when reviewing uses of force. The Chief also told us that he has never overturned a supervisor’s determination of whether a use of force fell within FPD policy.
Finally, FPD does not perform any comprehensive review of force incidents sufficient to detect patterns of misconduct by a particular officer or unit, or patterns regarding a particular type of force. Indeed, FPD does not keep records in a manner that would allow for such a review. Within FPD’s paper storage system, the two-page use-of-force reports (which are usually handwritten) are kept separately from all other documentation, including ECW and pursuit forms for the same incidents. Offense reports are attached to some use-of-force reports but not others. Some use-of-force reports have been removed from FPD’s set of force files because the incidents became the subjects of an internal investigation or a lawsuit. As a consequence, when FPD provided us what it considers to be its force files—which, as described above, we have reason to believe do not capture all actual force incidents—a majority of those files were missing a critical document, such as an offense report, ECW report, or the use-of-force report itself. We had to make repeated requests for documents to construct force files amenable to fair review. There were some documents that FPD was unable to locate, even after repeated requests.
With its records incomplete and scattered, the department is unable to implement an early intervention system to identify officers who tend to use excessive force or the need for more training or better equipment—goals explicitly set out by FPD policy. It appears that no annual review of force incidents is conducted, as required by FPD General Order 410.07; indeed, a meaningful annual audit would be impossible. These recordkeeping problems also explain why Chief Jackson told us he could not remember ever imposing discipline for an improper use of force or ordering further training based on force problems.
These deficiencies in use-of-force review can have serious consequences. They make it less likely that officers will be held accountable for excessive force and more likely that constitutional violations will occur. They create potentially devastating liability for the City for failing to put in place systems to ensure officers operate within the bounds of the law. And they result in a police department that does not give its officers the supervision they need to do their jobs safely, effectively, and constitutionally.
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B. Ferguson’s Municipal Court Practices
The Ferguson municipal court handles most charges brought by FPD, and does so not with the primary goal of administering justice or protecting the rights of the accused, but of maximizing revenue. The impact that revenue concerns have on court operations undermines the court’s role as a fair and impartial judicial body.20 Our investigation has uncovered substantial evidence that the court’s procedures are constitutionally deficient and function to impede a person’s ability to challenge or resolve a municipal charge, resulting in unnecessarily prolonged cases and an increased likelihood of running afoul of court requirements. At the same time, the court imposes severe penalties when a defendant fails to meet court requirements, including added fines and fees and arrest warrants that are unnecessary and run counter to public safety. These practices both reflect and reinforce an approach to law enforcement in Ferguson that violates the Constitution and undermines police legitimacy and community trust.
Ferguson’s municipal court practices combine to cause significant harm to many individuals who have cases pending before the court. Our investigation has found overwhelming evidence of minor municipal code violations resulting in multiple arrests, jail time, and payments that exceed the cost of the original ticket many times over. One woman, discussed above, received two parking tickets for a single violation in 2007 that then totaled $151 plus fees. Over seven years later, she still owed Ferguson $541—after already paying $550 in fines and fees, having multiple arrest warrants issued against her, and being arrested and jailed on several occasions. Another woman told us that when she went to court to try to pay $100 on a $600 outstanding balance, the Court Clerk refused to take the partial payment, even though the woman explained that she was a single mother and could not afford to pay more that month. A 90-yearold man had a warrant issued for his arrest after he failed to timely pay the five citations FPD issued to him during a single traffic stop in 2013. An 83-year-old man had a warrant issued against him when he failed to timely resolve his Derelict Auto violation. A 67-year-old woman told us she was stopped and arrested by a Ferguson police officer for an outstanding warrant for failure to pay a trash-removal citation. She did not know about the warrant until her arrest, and the court ultimately charged her $1,000 in fines, which she continues to pay off in $100 monthly increments despite being on a limited, fixed income. We have heard similar stories from dozens of other individuals and have reviewed court records documenting many additional instances of similarly harsh penalties, often for relatively minor violations.
Our review of police and court records suggests that much of the harm of Ferguson’s law enforcement practices in recent years is attributable to the court’s routine use of arrest warrants to secure collection and compliance when a person misses a required court appearance or payment. In a case involving a moving violation, procedural failures also result in the suspension of the defendant’s license. And, until recently, the court regularly imposed a separate Failure to Appear charge for missed appearances and payments; that charge resulted in an additional fine in the amount of $75.50, plus $26.50 in court costs. See Ferguson Mun. Code § 13-58 (repealed Sept. 23, 2014). During the last three years, the court imposed roughly one Failure to Appear charge per every two citations or summonses issued by FPD. Since at least
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).
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2010, the court has collected more revenue for Failure to Appear charges than for any other charge. This includes $442,901 in fines for Failure to Appear violations in 2013, which comprised 24% of the total revenue the court collected that year. While the City Council repealed the Failure to Appear ordinance in September 2014, many people continue to owe fines and fees stemming from that charge. And the court continues to issue arrest warrants in every case where that charge previously would have been applied. License suspension practices are similarly unchanged. Once issued, arrest warrants can, and frequently do, lead to arrest and time in jail, despite the fact that the underlying offense did not result in a penalty of imprisonment.21
Thus, while the municipal court does not generally deem the code violations that come before it as jail-worthy, it routinely views the failure to appear in court to remit payment to the City as jail-worthy, and commonly issues warrants to arrest individuals who have failed to make timely payment. Similarly, while the municipal court does not have any authority to impose a fine of over $1,000 for any offense, it is not uncommon for individuals to pay more than this amount to the City of Ferguson—in forfeited bond payments, additional Failure to Appear charges, and added court fees—for what may have begun as a simple code violation. In this way, the penalties that the court imposes are driven not by public safety needs, but by financial interests. And despite the harm imposed by these needless penalties, until recently, the City and court did little to respond to the increasing frequency of Failure to Appear charges, and in many respects made court practices more opaque and difficult to navigate.
1. Court Practices Impose Substantial and Unnecessary Barriers to the Challenge or Resolution of Municipal Code Violations
It is a hallmark of due process that individuals are entitled to adequate notice of the allegations made against them and to a meaningful opportunity to be heard. See Cole v. Arkansas, 333 U.S. 196, 201 (1948); see also Ward v. Vill. of Monroeville, 409 U.S. 57, 58-62 (1972) (applying due process requirements to case adjudicated by municipal traffic court). As documented below, however, Ferguson municipal court rules and procedures often fail to provide these basic protections, imposing unnecessary barriers to resolving a citation or summons and thus increasing the likelihood of incurring the severe penalties that result if a code violation is not quickly resolved.
We have concerns not only about the obstacles to resolving a charge even when an individual chooses not to contest it, but also about the trial processes that apply in the rare occasion that a person does attempt to challenge a charge. While it is “axiomatic that a fair trial in a fair tribunal is a basic requirement of due process,” Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 876 (2009), the adjudicative tribunal provided by the Ferguson municipal court appears deficient in many respects.22 Attempts to raise legal claims are met with retaliatory conduct. In an August 2012 email exchange, for instance, the Court Clerk asked what the
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.”
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Prosecuting Attorney does when an attorney appears in a red light camera case, and the Prosecuting Attorney responded: “I usually dismiss them if the attorney merely requests a recommendation. If the attorney goes off on all of the constitutional stuff, then I tell the attorney to come . . . and argue in front [of] the judge—after that, his client can pay the ticket.” We have found evidence of similar adverse action taken against litigants attempting to fulsomely argue a case at trial. The man discussed above who was cited after allowing his child to urinate in a bush attempted to challenge his charges. The man retained counsel who, during trial, was repeatedly interrupted by the court during his cross-examination of the officer. When the attorney objected to the interruptions, the judge told him that, if he continued on this path, “I will hold you in contempt and I will incarcerate you,” which, as discussed below, the court has done in the past to others appearing before it. The attorney told us that, believing no line of questioning would alter the outcome, he tempered his defense so as not to be jailed. Notably, at that trial, even though the testifying officer had previously been found untruthful during an official FPD investigation, the prosecuting attorney presented his testimony without informing defendant of that fact, and the court credited that testimony.23 The evidence thus suggests substantial deficiencies in the manner in which the court conducts trials.
Even where defendants opt not to challenge their charges, a number of court processes make resolving a case exceedingly difficult. City officials and FPD officers we spoke with nearly uniformly asserted that individuals’ experiences when they become embroiled in Ferguson’s municipal code enforcement are due not to any failings in Ferguson’s law enforcement practices, but rather to those individuals’ lack of “personal responsibility.” But these statements ignore the barriers to resolving a case that court practices impose, including: 1) a lack of transparency regarding rights and responsibilities; 2) requiring in-person appearance to resolve most municipal charges; 3) policies that exacerbate the harms of Missouri’s law requiring license suspension where a person fails to appear on a moving violation charge; 4) basic access deficiencies that frustrate a person’s ability to resolve even those charges that do not require in-court appearance; and 5) legally inadequate fine assessment methods that do not appropriately consider a person’s ability to pay and do not provide alternatives to fines for those living in or near poverty. Together, these barriers impose considerable hardship. We have heard repeated reports, and found evidence in court records, of people appearing in court many times—
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 selfincrimination). 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.
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in some instances on more than ten occasions—to try to resolve a case but being unable to do so, and subsequently having additional fines, fees, and arrest warrants issued against them.
a. Court Practices and Procedural Deficiencies Create a Lack of Transparency Regarding Rights and Responsibilities
It is often difficult for an individual who receives a municipal citation or summons in Ferguson to know how much is owed, where and how to pay the ticket, what the options for payment are, what rights the individual has, and what the consequences are for various actions or oversights. The initial information provided to people who are cited for violating Ferguson’s municipal code is often incomplete or inconsistent. Communication with municipal court defendants is haphazard and known by the court to be unreliable. And the court’s procedures and operations are ambiguous, are not written down, and are not transparent or even available to the public on the court’s website or elsewhere.
The rules and procedures of the court are difficult for the public to discern. Aside from a small number of exceptions, the Municipal Judge issues rules of practice and procedure verbally and on an ad hoc basis. Until recently, on the rare occasion that the Judge issued a written order that altered court practices, those orders were not distributed broadly to court and other FPD officials whose actions they affect and were not readily accessible to the public. Further, Ferguson, unlike other courts in the region, does not include any information about its operations on its website other than inaccurate instructions about how to make payment.24 Court staff acknowledged during our investigation that the public would benefit from increased information about how to resolve cases and about court practices and procedures. Yet neither the court nor other City officials have undertaken efforts to make court operations more transparent in order to ensure that litigants understand their rights or court procedures, or to enable the public to assess whether the court is operating in a fair manner.
Current court practices fail to provide adequate information even to those who are charged with a municipal violation. The lack of clarity about a person’s rights and responsibilities often begins from the moment a person is issued a citation. For some offenses, FPD uses state of Missouri uniform citations, and typically indicates on the ticket the assigned court date for the offense. Many times, however, FPD officers omit critical information from the citation, which makes it impossible for a person to determine the specific nature of the offense charged, the amount of the fine owed, or whether a court appearance is required or some alternative method of payment is available. In some cases, citations fail to indicate the offense charged altogether; in November 2013, for instance, court staff wrote FPD patrol to “see what [a] ticket was for” because it “does not have a charge on it.” In other cases, a ticket will indicate a charge but omit other crucial information. For example, speeding tickets often fail to indicate the alleged speed observed, even though both the fine owed and whether a court appearance is mandatory depends upon the specific speed alleged. Evidence shows that in some of these cases,
24 See City Courts, City of Ferguson, http://www.fergusoncity.com/60/The-City-Of-Ferguson-Municipal-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).
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a person has appeared in court but been unable to resolve the citation because of the missing information. In June 2014, for instance, a court clerk wrote to an FPD officer: “The above ticket . . . does not have a speed in it. The guy came in and we had to send him away. Can you email me the speed when you get time.” Separate and apart from the difficulties these omissions create for people, the fact that the court staff routinely add the speed to tickets weeks after they are issued raises concerns about the accuracy and reliability of officers’ assertions in official records.
We have also found evidence that in issuing citations, FPD officers frequently provide people with incorrect information about the date and time of their assigned court session. In November 2012, court staff emailed the two patrol lieutenants asking: “Would you please be so kind to tell your squads to check their ct. dates and times. We are getting quite a few wrong dates and times [on tickets].” In December 2012, a court clerk emailed an FPD officer to inform him that while he had been putting 6:00 p.m. on his citations that month, the scheduled court session was actually a morning session. More recently, in March 2014, an officer wrote a court clerk because the officer had issued a citation that listed the court date as ten days later than the actual court date assigned. Some of these emails indicate that court staff planned to send a letter to the person who was cited. As noted below, however, such letters often are returned to the court as undeliverable. It is thus unsurprising that, on one occasion, a City employee who works in the building where court was held wrote the Court Clerk to tell her that “[a] few people stopped by tonight looking for court and I referred them to you.” The email notes that one person insisted on providing her information so the employee could “vouch for her appearance for Night Court.” The email does not identify any other individual who showed up for court that night, nor does it state that any steps were taken to ensure that those assigned the incorrect court date did not have Failure to Appear charges and fines imposed, arrest warrants issued against them, or their licenses suspended.
Even if the citation a person receives has been properly filled out, it is often unclear whether a court appearance is required or if some other method of resolving a case is available. Ferguson has a schedule that establishes fixed fines for a limited number of violations that do not require court appearance. Nonetheless, this list—called the “TVB” or “Traffic Violations Bureau” list—is incomplete and does not provide sufficient clarity regarding whether a court appearance is mandatory. Court staff members have themselves informed us that there are certain offenses for which they will sometimes require a court appearance and other times not, depending on their own assessment of whether an appearance should be required in a given case. That information, however, is not reliably communicated to the person who has been given the citation.
Although the City of Ferguson frequently bears responsibility for giving people misinformation about when they must appear in court, Ferguson does little to ensure that persons who have missed a court date are properly notified of the consequences that result from an additional missed appearance, such as arrest or losing their driver’s licenses, or that those consequences have already been levied. If a person misses a required appearance, it is the purported practice of court staff to send a letter that sets a new court date and informs the defendant that missing the next appearance will result in an arrest warrant being issued. But court staff do not even claim to send these letters before issuing warrants if an individual is on a payment plan and misses a payment, or if a person already has an outstanding warrant on a
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different offense; in those cases, the court issues a warrant after a single missed payment or appearance. Further, even for the cases in which the court says it does send such letters prior to issuing a warrant, court records suggest that those letters are often not actually sent. Even where a letter is sent, some are returned to court, and court staff told us that in those cases, they make no additional effort to notify the individual of the new court date or the consequences of nonappearance. Court staff and staff from other municipal courts have informed us that defendants in poverty are more likely not to receive such a letter from court because they frequently change residence.
If an individual misses a second court date, an arrest warrant is issued, without any confirmation that the individual received notice of that second court date. In the past, when the court issued a warrant it would also send notice to the individual that a warrant was issued against them and telling them to appear at the police department to resolve the matter. This notice did not provide the basis of the arrest warrant or describe how it might be resolved. In any case, Ferguson stopped providing even this incomplete notice in 2012. In explaining the decision to stop sending this warrant notice, the Court Clerk wrote in a June 2011 email to Chief Jackson that “this will save the cost of warrant cards and postage” and “it is not necessary to send out these cards.” Some court employees, however, told us that the notice letter had been useful—at least for those who received it—and that they believe it should still be sent. That the court discontinued what little notice it was providing to people in advance of issuing a warrant is particularly troubling given that, during our investigation, we spoke with several individuals who were arrested without ever knowing that a warrant was outstanding.25
Once a warrant is issued, a person can clear the warrant by appearing at the court window in the police department and paying a pre-determined bond. However, that process is itself not communicated to the public and, in any case, is only useful if an individual knows there is a warrant for her or his arrest. Court clerks told us that in some cases they deem sympathetic in their own discretion, they will cancel the warrant without a bond. Further, it appears that if a person is aware of an outstanding warrant but believes that the warrant was issued in error, that person can petition the Municipal Judge to cancel the warrant only after the bond is paid in full. If a person cannot afford to pay the bond, there is no opportunity to seek recourse from the court.
If a person is arrested on an outstanding warrant—or as the result of an encounter with FPD—it is often difficult to secure release with a bond payment, not only because of the inordinately high bond amounts discussed below, but also because of procedural obstacles. In practice, bond procedures depart from those articulated in official policy, and are arbitrary and confusing. FPD staff have told us that correctional officers have at times tried to find a warrant in the court’s files to determine the bond amount owed, but have been unable to do so. This is unsurprising given the existence of what has been described to us as “drawers and drawers of warrants.” In some cases, people have attempted to pay a bond to secure the release of a family
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.
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member in FPD custody, but were not even seen by FPD staff. On one occasion, an FPD staff member reported to an FPD captain that a person “came to the station last night and waited to post bond for [a detainee], from 1:00 until 3:30. No one ever came up to get her money and no one informed her that she was going to have to wait that long.”
b. Needlessly Requiring In-Court Appearances for Most Code Violations Imposes Unnecessary Obstacles to Resolving Cases
Ferguson requires far more defendants to appear in court than is required under state law. Under Missouri Supreme Court rules, there is a short list of violations that require the violator’s appearance in court: any violation resulting in personal injury or property damage; driving while intoxicated; driving without a proper license; and attempting to elude a police officer. See Mo. Sup. Ct. R. 37.49. The municipal judge of each court has the discretion to expand this list of “must appears,” and Ferguson’s municipal court has expanded it exponentially: of 376 actively charged municipal offenses, court staff informed us that approximately 229 typically require an appearance in court before the fine can be paid, including Dog Creating Nuisance, Equipment Violations, No Passing Zone, Housing – Overgrown Vegetation, and Failure to Remove Leaf Debris. Ferguson requires these court appearances regardless of whether the individual is contesting the charges.
Requiring an individual to appear at a specific place and time to pay a citation makes it far more likely that the individual will fail to appear or pay the citation on time, quickly resulting, in Ferguson, in an arrest warrant and a suspended license. Even setting aside the fact that people often receive inaccurate information about when they must appear in court, the inperson appearance requirement imposes particular difficulties on low-wage workers, single parents, and those with limited access to reliable transportation. Requiring an individual to appear in court also imposes particular burdens on those with jobs that have set hours that may conflict with an assigned court session. Court sessions are sometimes set during the workday and sometimes in the early evening. Additionally, while court dates can be set for several months after the citation was issued, in some cases they can also be issued as early as a week after a citation is received. For example, court staff have instructed FPD officers that derelict auto violations must be set for the “very next court date even if it is just a week . . . or so away.” This can add an additional obstacle for those with firmly established employment schedules.
There are also historical reasons, of which the City is well-aware, that many Ferguson residents may not appear in court. Some individuals fear that if they cannot immediately pay the fines they owe, they will be arrested and sent to jail. Ferguson court staff members told us that they believe the high number of missed court appearances in their court is attributable, in part, to this popular belief. These fears are well founded. While Judge Brockmeyer has told us that he has never sentenced someone to jail time for being unable to pay a fine, we have found evidence that the Judge has held people appearing in court for contempt on account of their unwillingness to answer questions and sentenced those individuals to jail time. In December 2013, the FPD officer assigned to provide security at a court session directly emailed the City Manager to provide notice that “Judge Brockmeyer ordered [a defendant] arrested tonight after [he] refused to answer any questions and told the Judge that he had no jurisdiction. This happened on two separate occasions and with the second occasion when [the defendant] continued with his refusal
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to answer the Judge, he was order[ed] to be arrested and held for 10 days.”26 We also spoke with a woman who told us that, after asking questions in court, FPD officers arrested her for Contempt of Court at the instructions of the Court Clerk. Moreover, we have also received a report of an FPD officer arresting an individual at court for an outstanding warrant. In that instance, which occurred in April 2014, the individual—who was in court to make a fine payment—was approached by an FPD officer, asked to step outside of the court session, and was immediately arrested. In addition, as Ferguson’s Municipal Judge confirmed, it is not uncommon for him to add charges and assess additional fines when a defendant challenges the citation that brought the defendant into court. Appearing in court in Ferguson also requires waits that can stretch into hours, sometimes outdoors in inclement weather. Many individuals report being treated dismissively, or worse, by court staff and the Municipal Judge.
Further, as Ferguson officials have told us, many people have experience with the numerous other municipal courts in St. Louis County that informs individuals’ expectations about the Ferguson municipal court. Our investigation shows that other municipalities in the area have engaged in a number of practices that have the effect of discouraging people from attending court sessions. For instance, court clerks from other municipalities have told us that they have seen judges order people arrested if they appear in court with an outstanding warrant but are unable to pay the fine owed or post the bond amount listed on the warrant. Indeed, one municipal judge from a neighboring municipality told us that this practice has resulted in what he believes to be a widespread belief that those who attend court but cannot pay will be immediately arrested—a view that municipal judge says is “entirely the municipal courts’ fault” for perpetuating because they have not taken steps to correct it. Recent reports have documented other problematic practices. For example, a June 2014 letter from Presiding Circuit Court Judge Maura McShane to municipal court judges in the region discussed troubling and possibly unlawful practices of municipal courts in St. Louis County that served to prevent the public from attending court sessions. These practices included not allowing children in court. Indeed, as late as October 2014, the municipal court website in the neighboring municipality of Bel Ridge— where Judge Brockmeyer serves as prosecutor—stated that children are not allowed in court. While it appears that Ferguson’s court has always allowed children, we talked with people who assumed it did not because of their experiences in other courts. One man told us he was aggressively questioned by FPD officers after he left his child outside court with a friend because of this assumption. Thus, even though Ferguson might not engage in some of these practices, and while it may even be the case that other municipalities have themselves implemented reforms, the long history of these practices continues to shape community members’ views of what might happen to them if they attend court.
Court officials have told us that Ferguson’s expansive list of “must appear” offenses is not driven by any public safety need. That is underscored by the fact that, in some cases, attorneys are allowed to resolve such offenses over the phone without making any appearance in
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.
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court. Nonetheless, despite the acknowledged obstacles to appearing in person in court and the lack of any articulated need to appear in court in all but a few instances, Ferguson has taken few, if any, steps to reduce the number of cases that require a court appearance.
c. Driver’s License Suspensions Mandated by State Law and Unnecessarily Prolonged by Ferguson Make It Difficult to Resolve a Case and Impose Substantial Hardship
For many who have already had a warrant issued against them for failing to either appear or make a required payment, appearing in court is made especially difficult by the fact that their warrants likely resulted in the suspension of their driver’s licenses. Pursuant to Missouri state law, anyone who fails to pay a traffic citation for a moving violation on time, or who fails to appear in court regarding a moving traffic violation, has his or her driver’s license suspended. Mo. Rev. Stat. § 302.341.1. Thus, by virtue of having their licenses suspended, those who have already missed a required court appearance are more likely to fail to meet subsequent court obligations if they require physically appearing in court—fostering a cycle of missed appearances that is difficult to end. That is particularly so given what some City officials from Ferguson and surrounding communities have called substandard public transportation options. We spoke with one woman who had her license suspended because she received a Failure to Appear charge in Ferguson and so had to rely on a friend to drive her to court. When her friend canceled, she had no other means of getting to court on time, missed court, and had another Failure to Appear charge and arrest warrant issued against her—adding to the charges that required resolution before her license could be reinstated.27
To be clear, responsibility for the hardship imposed by automatically suspending a person’s license for failing to appear in a traffic case rests largely with this state law. Notably, however, Ferguson’s own discretionary practices amplify and prolong that law’s impact. A temporary suspension can be lifted with a compliance letter from the municipal court, but the Ferguson municipal court does not issue compliance letters unless a person has satisfied the entire fine pending on the charge that caused the suspension. This rule is not mandated by state law, which instead provides a municipality with the authority to decide when to issue a compliance letter. See Mo. Rev. Stat. § 302.341.1 (“Such suspension shall remain in effect until the court with the subject pending charge requests setting aside the noncompliance suspension pending final disposition.”). Indeed, Ferguson court staff told us that they will issue compliance letters before full payment has been made for cases that they determine, in their unguided discretion, to be sympathetic.
This rule and the Ferguson practices that magnify its impact underscore how missed court appearances can have broad ramifications for individuals’ ability to maintain a job and care for their families. We spoke with one woman who received three citations during a single incident in 2013 in which she pulled to the side of the road to allow a police car to pass, was confronted by the officer for doing so, and was cited for obstructing traffic, failing to signal, and not wearing a seatbelt. The woman appeared in court to challenge those citations, was told a new trial date would be mailed to her, and instead received notice from the Missouri Department of Revenue
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.
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several months later that her license was suspended. Upon informing the Court Clerk that she never received notice of her court date, the Clerk told her the trial date had passed two weeks earlier and that there was now a warrant for her arrest pending.28 Given that the woman’s license was suspended only two weeks after her trial date, it appears the court did not send a warning letter before entering a warrant and suspending the license, contrary to purported policy. Court records likewise do not indicate a letter being sent. The woman asked to see the Municipal Judge to explain the situation, but court staff informed her that she could only see the Judge if she was issued a new court date and that she would only be issued a new court date if she paid her $200 bond. With no opportunity to further petition the court, she wrote to Mayor Knowles about her situation, stating:
Although I feel I have been harassed, wronged and unjustly done by Ferguson . . . [w]hat I am upset and concerned about is my driver’s license being suspended. I was told that I may not be able to [be] reinstate[d] until the tickets are taken care of. I am a hard working mother of two children and I cannot by any means take care of my family or work with my license being suspended and being unable to drive. I have to have [a] valid license to keep my job because I transport clients that I work with not to mention I drive my children back and forth to school, practices and rehearsals on a daily basis. I am writing this letter because no one has been able to help me and I am really hoping that I can get some help getting this issue resolved expediently.
It appears that, at the Mayor’s request, the court entered “Not Guilty” dispositions on her cases, several months after they first resulted in the license suspension.
d. Court Operations Impose Obstacles to Resolving Even Those Offenses that Do Not Require In-Person Court Appearance
The limited number of code violations that do not require an in-person court appearance can likewise be difficult to resolve, even if a person can afford to do so. The court has accepted mailed payments for some time and has recently begun to accept online payments, but the court’s website suggests that in-person payment is required and provides no information that payment online or by mail is an option. As a result, many people try to remit payment to the court window within the police department. But community members have informed us that the court window often closes earlier than the posted hours indicate. Indeed, during our investigation, we observed the court window close at 4:30 p.m. on days where an evening court session was not being held, despite the fact that both the Ferguson City website and the Missouri Courts website state that the window closes at 5:00 p.m.29 On one such occasion, we observed two different sets
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-Of-Ferguson-Municipal-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).
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of people arrive after 4:30 p.m. but before 5:00 p.m. One man told us his ticket payment was due that day. Another woman arrived in the rain with her small child, unsuccessfully attempted to call someone to the window, and left. Even when the court window is technically open, we have seen people standing at the window waiting for a response to their knocks for long periods of time, sometimes in inclement weather—even as court staff sat inside the police department tending to their normal duties.
As noted above, documents we reviewed showed that even where individuals are successful in talking with court staff about a citation, FPD-issued citations are sometimes so deficient that court staff are unable to determine what the fine, or even charge, is supposed to be. Evidence also shows that court staff have at times been unable to even find a person’s case file, often because the FPD officer who issued the ticket failed to properly file a copy. In these cases, a person is left unable to resolve her or his citation.
e. High Fines, Coupled with Legally Inadequate Ability-to-Pay Determinations and Insufficient Alternatives to Immediate Payment, Impose a Significant Burden on People Living In or Near Poverty
It is common for a single traffic stop or other encounter with FPD to give rise to fines in amounts that a person living in poverty is unable to immediately pay. This fact is attributable in part to FPD’s practice of issuing multiple citations—frequently three or more—on a single stop. This fact is also attributable to the fine assessment practices of the Ferguson municipal court, including not only the high fine amounts imposed, but also the inadequate process available for those who cannot afford to pay a fine. Even setting aside cases where additional fines and fees were imposed for Failure to Appear violations, our investigation found instances in which the court charged $302 for a single Manner of Walking violation; $427 for a single Peace Disturbance violation; $531 for High Grass and Weeds; $777 for Resisting Arrest; and $792 for Failure to Obey, and $527 for Failure to Comply, which officers appear to use interchangeably.
For many, the hardship of the fine amounts imposed is exacerbated by the fact that they owe similar fines in other, neighboring municipalities. We spoke with one woman who, in addition to owing several hundred dollars in fines to Ferguson, also owed fines to the municipal courts in Jennings and Edmundson. In total, she owed over $2,500 in fines and fees, even after already making over $1,000 in payments and clearing cases in several other municipalities. This woman’s case is not unique. We have heard reports from many individuals and even City officials that, in light of the large number of municipalities in the area immediately surrounding Ferguson, most of which have their own police departments and municipal courts, it is common for people to face significant fines from many municipalities.
City officials have extolled that the Ferguson preset fine schedule establishes fines that are “at or near the top of the list” compared with other municipalities across a large number of offenses. A more recent comparison of the preset fines of roughly 70 municipal courts in the region confirms that Ferguson’s fine amounts are above regional averages for many offenses, particularly discretionary offenses such as non-speeding-related traffic offenses. That comparison also shows that Ferguson imposes the highest fine of any of those roughly 70 municipalities for the offense of Failing to Provide Proof of Insurance; Ferguson charges $375, whereas the average fine imposed is $186 and the median fine imposed is $175. In 2013 alone,
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the Ferguson court collected over $286,000 in fines for that offense—more than any other offense except Failure to Appear.
The fines that the court imposes for offenses without preset fines are more difficult to evaluate precisely because they are imposed on a case-by-case basis. Typically, however, in imposing fines for non-TVB offenses during court sessions, the Municipal Judge adopts the fine recommendations of the Prosecuting Attorney—who also serves as the Ferguson City Attorney. As discussed above, court staff have communicated with the Municipal Judge regarding the need to ensure that the prosecutor’s recommended fines are sufficiently high because “[w]e need to keep up our revenue.” We were also told of at least one incident in which an attorney received a fine recommendation from the prosecutor for his client, but when the client went to court to pay the fine, a clerk refused payment, informing her that there was an additional $100 owed beyond the fine recommended by the prosecutor.
The court imposes these fines without providing any process by which a person can seek a fine reduction on account of financial incapacity. The court does not provide any opportunity for a person unable to pay a preset TVB fine to seek a modification of the fine amount. Nor does the court consider a person’s financial ability to pay in determining how much of a fine to impose in cases without preset fines. The Ferguson court’s failure to assess a defendant’s ability to pay stands in direct tension with Missouri law, which instructs that in determining the amount and the method of payment of a fine, a court “shall, insofar as practicable, proportion the fine to the burden that payment will impose in view of the financial resources of an individual.” Mo. Rev. Stat. § 560.026.
In lieu of proportioning a fine to a particular individual’s ability to pay or allowing a process by which a person could petition the court for a reduction, the court offers payment plans to those who cannot afford to immediately pay in full. But such payment plans do not serve as a substitute for an ability-to-pay determination, which, properly employed, can enable a person in some cases to pay in full and resolve the case. Moreover, the court’s rules regarding payment plans are themselves severe. Unlike some other municipalities that require a $50 monthly payment, Ferguson’s standard payment plan requires payments of $100 per month, which remains a difficult amount for many to pay, especially those who are also making payments to other municipalities. Further, the court treats a single missed, partial, or untimely payment as a missed appearance. In such a case, the court immediately issues an arrest warrant without any notice or opportunity to explain why a payment was missed—for example, because the person was sick, or the court closed its doors early that day. The court reportedly has softened this rule during the course of our investigation by allowing a person who has missed a payment to go to court to seek leave for not paying the full amount owed. However, even this softened rule provides minimal relief, as making this request requires a person to appear in court the first Wednesday of the month at 11:00 a.m. If a person misses that session, the court immediately issues an arrest warrant.
Before the court provided this Wednesday morning court session for those on payment plans, court staff frequently rejected requests from payment plan participants to reduce or continue monthly payments—leaving individuals unable to make the required payment with no recourse besides incurring a Failure to Appear charge, receiving additional fines, and having an arrest warrant issued. In July 2014, an assistant court clerk wrote in an email that she rejected a defendant’s request for a reduced monthly payment on account of inability to pay and told the
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defendant, “everyone says [they] can’t pay.” This is consistent with earlier noted statements by the acting Ferguson prosecutor that he stopped granting “needless requests for continuances from the payment docket.” Another defendant who owed $1,002 in fines and fees stemming from a Driving with a Revoked License charge wrote to a City official that he would be unable to make his required monthly payment but hoped to avoid having a warrant issued. He explained that he was unemployed, that the court had put him on a payment plan only a week before his first payment was due, and that he did not have enough time to gather enough money. He implored the City to provide “some kind of community service to work off the fines/fees,” stating that “I want to pay you guys what I owe” and “I have been trying to scrape up what I can,” but that “with warrants it’s hard to get a job.” The City official forwarded the request to a court clerk, who noted that the underlying charge dated back to 2007, that five Failure to Appear charges had been levied, and that no payments had yet been made. The clerk responded: “In this certain case [the defendant] will go to warrant.” Records show that, only a week earlier, this same clerk asked a court clerk from another municipality to clear a ticket for former Ferguson Police Chief Moonier as a “courtesy.” And, only a month later, that same clerk also helped the Ferguson Collector of Revenue clear two citations issued by neighboring municipalities.
Ferguson does not typically offer community service as an alternative to fines. City officials have emphasized to us that Ferguson is one of only a few municipalities in the region to provide any form of a community service program, and that the program that is available is well run. But the program, which began in February 2014, is only available on a limited basis, mostly to certain defendants who are 19 years old or younger.30 We have heard directly from individuals who could not afford to pay their fines—and thus accumulated additional charges and fines and had warrants issued against them—that they requested a community service alternative to monetary payment but were told no such alternative existed. One man who still owes $1,100 stemming from a speeding and seatbelt violation from 2000 told us that he has been arrested repeatedly in connection with the fines he cannot afford to pay, and that “no one is willing to work with him to find an alternative solution.” City officials have recognized the need to provide a meaningful community service option. In August 2013, one City Councilmember wrote to the City Manager and the Mayor that, “[f]or a few years now we have talked about offering community service to those who can’t afford to pay their fines, but we haven’t actually made it happen.” The Councilmember noted the benefits of such a program, including that it would “keep those people that simply don’t have the money to pay their fines from constantly being arrested and going to jail, only to be released and do it all over again.”
2. The Court Imposes Unduly Harsh Penalties for Missed Payments or Appearances
The procedural deficiencies identified above work together to make it exceedingly difficult to resolve a case and exceedingly easy to run afoul of the court’s stringent and confusing rules, particularly for those living in or near poverty. That the court is at least in part responsible for causing cases to protract and result in technical violations has not prevented it from imposing
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.aspx?AID=370&ARC=699 (stating community service program was launched in partnership with Ferguson Youth Initiative in February 2014 “to assist teenagers and certain other defendants”).
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significant penalties when those violations occur. Although Ferguson’s court—unlike many other municipal courts in the region—has ceased imposing the Failure to Appear charge, the court continues to routinely issue arrest warrants for missed appearances and missed payments. The evidence we have found shows that these arrest warrants are used almost exclusively for the purpose of compelling payment through the threat of incarceration. The evidence also shows that the harms of the court’s warrant practices are exacerbated by the court’s bond procedures, which impose unnecessary obstacles to clearing a warrant or securing release after being arrested on a warrant and often function to further prolong a case and a person’s involvement in the municipal justice system. These practices—together with the consequences to individuals and communities that result—raise significant due process and equal protection concerns.
a. The Ferguson Municipal Court Uses Arrest Warrants Primarily as a Means of Securing Payment
Ferguson uses its police department in large part as a collection agency for its municipal court. Ferguson’s municipal court issues arrest warrants at a rate that police officials have called, in internal emails, “staggering.” According to the court’s own figures, as of December 2014, over 16,000 people had outstanding arrest warrants that had been issued by the court. In fiscal year 2013 alone, the court issued warrants to approximately 9,007 people. Many of those individuals had warrants issued on multiple charges, as the 9,007 warrants applied to 32,975 different offenses.
In the wake of several news accounts indicating that the Ferguson municipal court issued over 32,000 warrants in fiscal year 2013, court staff determined that it had mistakenly reported to the state of Missouri the number of charged offenses that had warrants (32,975), not the number of people who had warrants outstanding (9,007). Our investigation indicates that is the case. In any event, it is probative of FPD’s enforcement practices that those roughly 9,000 warrants were issued for over 32,000 offenses. Moreover, for those against whom a warrant is issued, the number of offenses included within the warrant has tremendous practical importance. As discussed below, the bond amount a person must pay to clear a warrant before an arrest occurs, or to secure release once a warrant has been executed, is often dependent on the number of offenses to which the warrant applies. And, that the court issued warrants for the arrest of roughly 9,000 people is itself not insignificant; even under that calculation, Ferguson has one of the highest warrant totals in the region.
The large number of warrants issued by the court, by any count, is due exclusively to the fact that the court uses arrest warrants and the threat of arrest as its primary tool for collecting outstanding fines for municipal code violations. With extremely limited exceptions, every warrant issued by the Ferguson municipal court was issued because: 1) a person missed consecutive court appearances, or 2) a person missed a single required fine payment as part of a payment plan. Under current court policy, the court issues a warrant in every case where either of those circumstances arises—regardless of the severity of the code violation that the case involves. Indeed, the court rarely issues a warrant for any other purpose. FPD does not request arrest or any other kind of warrants from the Ferguson municipal court; in fact, FPD officers told us that they have been instructed not to file warrant applications with the municipal court because the court does not have the capacity to consider them.
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While issuing municipal warrants against people who have not appeared or paid their municipal code violation fines is sometimes framed as addressing the failure to abide by court rules, in practice, it is clear that warrants are primarily issued to coerce payment.31 One municipal judge from a neighboring municipality told us that the use of the Failure to Appear charge “provides cushion for judges against the attack that the court is operating as a debtor’s prison.” And the Municipal Judge in Ferguson has acknowledged repeatedly that the warrants the court issues are not put in place for public safety purposes. Indeed, once a warrant issues, there is no urgency within FPD to actually execute it. Court staff reported that they typically take weeks, if not months, to enter warrants into the system that enables patrol officers to determine if a person they encounter has an outstanding warrant. As of December 2014, for example, some warrants issued in September 2014 were not yet detectable to officers in the field. Court staff also informed us that no one from FPD has ever commented on that lag or prioritized closing it. Nor does there seem to be any public safety obstacle to eliminating failure to appear warrants altogether. The court has, in fact, adopted a temporary “warrant recall program” that allows individuals who show up to court to immediately have their warrants recalled and a new court date assigned. And, under longstanding practice, once an attorney makes an appearance in a case, the court automatically discharges any pending warrants.
That the primary role of warrants is not to protect public safety but rather to facilitate fine collection is further evidenced by the fact that the warrants issued by the court are overwhelmingly issued in non-criminal traffic cases that would not themselves result in a penalty of imprisonment. From 2010 to December 2014, the offenses (besides Failure to Appear ordinance violations) that most often led to a municipal warrant were: Driving While License Is Suspended, Expired License Plates, Failure to Register a Vehicle, No Proof of Insurance, and Speed Limit violations. These offenses comprised the majority of offenses that led to a warrant not because they are more severe than other offenses, but rather because every missed appearance or payment on any charge results in a warrant, and these were some of the most common charges brought by FPD during that period.
Even though these underlying code violations would not on their own result in a penalty of imprisonment, arrest and detention are not uncommon once a warrant enters on a case. We have found that FPD officers frequently check individuals for warrants, even when the person is not reasonably suspected of engaging in any criminal activity, and, if a municipal warrant exists, will often make an arrest. City officials have told us that the decision to arrest a person for an outstanding warrant is “highly discretionary” and that officers will frequently not arrest unless the person is “ignorant.” Records show, however, that officers do arrest individuals for outstanding municipal warrants with considerable frequency. Jail records are poorly managed, and data on jail bookings is only available as of April 2014. But during the roughly six-month period from April to September 2014, 256 people were booked into the Ferguson City Jail after being arrested at least in part for an outstanding warrant—96% of whom were African American. Of these individuals, 28 were held for longer than two days, and 27 of these 28 people were black.
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).
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Similarly, data collected during vehicle stops shows that, during a larger period of time between October 2012 and October 2014, FPD arrested roughly 460 individuals following a vehicle stop solely because they had outstanding warrants. This figure is likely a significant underrepresentation of the total number of people arrested for outstanding warrants during that period, as it does not include those people arrested on outstanding warrants not during traffic stops; nor does it include those people arrested during traffic stops for multiple reasons, but who might not have been stopped, much less arrested, without the officer performing a warrant check on the car and finding an outstanding warrant. Even among this limited pool, the data shows the disparate impact these arrests have on African Americans. Of the 460 individuals arrested during traffic stops solely for outstanding warrants, 443 individuals—or 96%—were African American.
That data also does not include those people arrested by other municipal police departments on the basis of an outstanding warrant issued by Ferguson. As has been widely reported in recent months, many municipal police departments in the region identify people with warrants pending in other towns and then arrest and hold those individuals on behalf of those towns. FPD’s records show that it routinely arrests individuals on warrants issued by other jurisdictions. And, although we did not review the records of other departments, we have heard reports of many individuals who were arrested for a Ferguson-issued warrant by police officers outside of Ferguson. On some occasions, Ferguson will decline to pick up a person arrested in a different municipality for a Ferguson warrant and, after however long it takes for that decision to be made, the person will be released, sometimes after being required to pay bond. On other occasions, Ferguson will send an officer to retrieve the person for incarceration in the Ferguson City Jail; FPD supervisors have in fact instructed officers to do so “regardless of the charge or the bond amount, or the number of prisoners we have in custody.” We found evidence of FPD officers traveling more than 200 miles to retrieve a person detained by another agency on a Ferguson municipal warrant.
Because of the large number of municipalities in the region, many of which have warrant practices similar to Ferguson, it is not unusual for a person to be arrested by one department, have outstanding warrants pending in other police departments, and be handed off from one department to another until all warrants are cleared. We have heard of individuals who have run out of money during this process—referred to by many as the “muni shuffle”—and as a result were detained for a week or longer.
The large number of municipal court warrants being issued, many of which lead to arrest, raises significant due process and equal protection concerns. In particular, Ferguson’s practice of automatically treating a missed payment as a failure to appear—thus triggering an arrest warrant and possible incarceration—is directly at odds with well-established law that prohibits “punishing a person for his poverty.” Bearden v. Georgia, 461 U.S. 660, 671 (1983); see also Tate v. Short, 401 U.S. 395, 398 (1971). In Bearden, the Supreme Court found unconstitutional a state’s decision to revoke probation and sentence a defendant to prison because the defendant was unable to pay a required fine. Bearden, 461 U.S. at 672-73. The Court held that before imposing imprisonment, a court must first inquire as to whether the missed payment was attributable to an inability to pay and, if so, “consider alternate measures of punishment other than imprisonment.” Id. at 672; see also Martin v. Solem, 801 F.2d 324, 332 (8th Cir. 1986)
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(noting that the state court had failed to adequately determine, as required by Bearden, whether the defendant had “made sufficient bona fide efforts legally to acquire the resources to pay,” but nonetheless denying habeas relief because the defendant’s failure to pay was due not to indigency but his “willful refusal to pay”).
The Ferguson court, however, has in the past routinely issued arrest warrants when a person is unable to make a required fine payment without any ability-to-pay determination. While the court does not sentence a defendant to jail in such a case, the result is often equivalent to what Bearden proscribes: the incarceration of a defendant solely because of an inability to pay a fine. In response to concerns about issuing warrants in such cases, Ferguson officials have told us that without issuing warrants and threatening incarceration, they have no ability to secure payment. But the Supreme Court rejected that argument, finding that states are “not powerless to enforce judgments against those financially unable to pay a fine,” and noting that—especially in cases like those at issue here in which the court has already made a determination that penological interests do not demand incarceration—a court can “establish a reduced fine or alternate public service in lieu of a fine that adequately serves the state’s goals of punishment and deterrence, given the defendant’s diminished financial resources.”32 Id. As discussed above, however, Ferguson has not established any such alternative.33
Finally, in light of the significant portion of municipal charges that lead to an arrest warrant, as well as the substantial number of arrest warrants that lead to arrest and detention, we have considerable concerns regarding whether individuals facing charges in Ferguson municipal court are entitled to, and being unlawfully denied, the right to counsel.
b. Ferguson’s Bond Practices Impose Undue Hardship on Those Seeking to Secure Release from the Ferguson City Jail
Our investigation found substantial deficiencies in the way Ferguson police and court officials set, accept, refund, and forfeit bond payments. Recently, in response to concerns raised during our investigation, the City implemented several changes to its bond practices, most of which apply to those detained after a warrantless arrest.34 These changes represent positive
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
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developments, but many deficiencies remain.35 Given the high number of arrest warrants issued by the municipal court—and given that in many cases a person can only clear a pending warrant or secure release from detention by posting bond—the deficiencies identified below impose significant harm to individuals in Ferguson.
Current bond practices are unclear and inconsistent. Information provided by the City reveals a haphazard bond system that results in people being erroneously arrested, and some people paying bond but not getting credit for having done so. Documents describe officers finding hundred dollar bills in their pockets that were given to them for bond payment and not remembering which jail detainee provided them; bond paperwork being found on the floor; and individuals being arrested after their bonds had been accepted because the corresponding warrants were never cancelled. At one point in 2012, Ferguson's Court Clerk called such issues a “daily problem.” The City’s practices for receiving and tracking bond payments have not changed appreciably since then.
The practices for setting bond are similarly erratic. The Municipal Judge advised us that he sets all bonds upon issuing an arrest warrant. We found, however, that bond amounts are mostly set by court staff, and are rarely even reviewed by the Judge. While court staff told us that the current bond schedule requires a bond of $200 for up to four traffic offenses, $100 for every traffic offense thereafter, $100 for every Failure to Appear charge, and $300 for every criminal offense, FPD’s own policy includes a bond schedule that departs from these figures. In practice, bond amounts vary widely. See FPD General Order 421.02. Our review of a random sample of warrants indicates that bond is set in a manner that often departs from both the schedule referenced by court staff and the schedule found in FPD policy. In a number of these cases, the bond amount far exceeded the amount of the underlying fine.
The court’s bond practices, including the fact that the court often imposes bonds that exceed the amount owed to the court, do not appear to be grounded in any public safety need. In a July 2014 email to Chief Jackson and other police officials, the Court Clerk reported that “[s]tarting today we are going to reduce anyone’s bond that calls and is in warrant[] to half the amount,” explaining that “[t]his may bring in some extra monies this way.” The email identifies no public safety obstacle or other reason not to implement the bond reduction. Notably, the email also states that “[w]e will only do this between the hours of 8:30 to 4” and that no halfbond will be accepted after those hours unless the Court Clerk approves it.36 Thus, as a result of this policy, an individual able to appear at the court window during business hours would pay half as much to clear a warrant as an individual who is actually arrested on a warrant after hours. That Ferguson’s bond practices do not appear grounded in public safety is underscored by the
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-Of-Ferguson-Municipal-Courts (last visited Feb. 26, 2015).
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fact that the court will typically cancel outstanding warrants without requiring the posting of any bond for people who have an attorney enter an appearance on their behalf. Records show that this practice is also applied haphazardly, and there do not appear to be any rules that govern the apparent discretion court staff have to waive or require bond following an attorney’s appearance.
It is not uncommon for an individual charged with only a minor violation to be arrested on a warrant, be unable to afford bond, and have no recourse but to await release. Longstanding court rules provide for a person arrested pursuant to an arrest warrant to be held up to 72 hours before being released without bond, and the court’s recent orders do not appear to change this. Records show that individuals are routinely held for 72 hours. FPD’s records management system only began capturing meaningful jail data in April 2014; but from April to September 2014 alone, 77 people were detained in the jail for longer than two days, and many of those detentions neared, reached, or exceeded the 72-hour mark. Of those 77 people, 73, or 95%, were black. Many people, including the woman described earlier who was charged with two parking code violations, have reported being held up until the 72-hour limit—despite having no ability to pay.
Indeed, many others report being held for far longer, and documentary evidence is consistent with these reports. In April 2010, for example, the Chief of Police wrote an email to the Captain of the Patrol Division stating that the “intent is that when the watch commander / street supervisor gets the census from the jail he asks who will come up on 72 hrs.,” and, if there is any such person, “he can have them given the next available court date and released, or authorize they remain in jail, since he will be the designate.” The email continues: “If someone has already been there more than 72 hours, it may be assumed their continued hold was previously authorized.” Further, as noted above, while comprehensive jail records do not exist for detentions prior to April 2014, records do show several recent instances in which FPD detained a person for longer than the purported 72-hour limit.
Despite the fact that those arrested by FPD for outstanding municipal warrants can be held for several days if unable to post bond, the Ferguson municipal court does not give credit for time served. As a result, there have been many cases in which a person has been arrested on a warrant, detained for 72 hours or more, and released owing the same amount as before the arrest was made. Court records do not even track the total amount of time a person has spent in jail as part of a case. When asked why this is not tracked, a member of court staff told us: “It’s only three days anyway.”
These prolonged detentions for those who cannot afford bond are alarming, and raise considerable due process and equal protection concerns. The prolonged detentions are especially concerning given that there is no public safety need for those who receive municipal warrants to be jailed at all. The Ferguson Municipal Judge has acknowledged that for most code violations, it is “probably a good idea to do away with jail time.”
Further, there are many circumstances in which court practices preclude a person from making payment against the underlying fine owed—and thus resolving the case, or at least moving the case toward resolution—and instead force the person to pay a bond. If, for example, an individual is jailed on a “must appear” charge and has not yet appeared in court to have the
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fine assessed, the individual will not be allowed to make payment on the underlying charge. Rather, the person must post bond, receive a new court date, appear in court, and start the process anew. Even when the underlying fine has been assessed, a person in jail may still be forced to make a bond payment instead of a fine payment to secure release if court staff are unavailable to determine the amount the person owes. And when a person attempts to resolve a warrant before they end up arrested, a bond payment will typically be required unless the person can afford to pay the underlying fine in full, as, by purported policy, the court does not accept partial payment of fines outside of a court-sanctioned payment plan.
Bond forfeiture procedures also raise significant due process concerns. Under current practice, the first missed appearance or missed payment following a bond payment results in a warning letter being sent; after the second missed appearance or payment, the court initiates a forfeiture action (and issues another arrest warrant). As with “warrant warning letters” described above, our investigation has been unable to verify that the court consistently sends bond forfeiture warning letters. And, as with warrant warning letters, bond forfeiture warning letters are sometimes returned to the court, but court staff members do not appear to make any further attempt to contact the intended recipient.
Upon a bond being forfeited, the court directs the bond money into the City’s account and does not apply the amount to the individual’s underlying fine. For example, if a person owes a $200 fine payment, is arrested on a warrant, and posts a bond of $200, the forfeiture of the bond will result in the fine remaining $200 and an arrest warrant being issued. If, instead, Ferguson were to allow this $200 to go toward the underlying fine, this would resolve the matter entirely, obviating the need for any warrant or subsequent court appearance. Not applying a forfeited bond to the underlying fine is especially troubling considering that this policy does not appear to be clearly communicated to those paying bonds. Particularly in cases where the bond is set at an amount near the underlying fine owed—which we have found to be common—it is entirely plausible that a person paying bond would mistakenly believe that payment resolves the case.
When asked why the forfeited bond is not applied to the underlying fine, court staff asserted that applicable law prohibits them from doing so without the bond payer’s consent.37 That explanation is grounded in an incorrect view of the law. In Perry v. Aversman, 168 S.W.3d 541 (Mo. Ct. App. 2005), the Missouri Court of Appeals explicitly upheld a rule requiring that forfeited bonds be applied to pending fines of the person who paid bond and found that such practices are acceptable so long as the court provides sufficient notice. Id. at 543-46. In light of the fact that applicable law permits forfeited bonds to be applied to pending fines, Ferguson’s longstanding practice of directing forfeited bond money to the City’s general fund is troubling. In fiscal year 2013 alone, the City collected forfeited bond amounts of $177,168, which could instead have been applied to the fines of those making the payments.
Ferguson’s rules and procedures for refunding bond payments upon satisfaction of the underlying fine raise similar concerns. Ferguson requires that when a person pays the underlying
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.
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fine to avoid bond forfeiture, he or she must pay in person and provide photo identification. Yet, where the underlying fine is less than the bond amount—a common occurrence—the City does not immediately refund the difference to the individual. Rather, pursuant to a directive issued by the current City Finance Director approximately four years ago, bond refunds cannot be made in person, and instead must be sent via mail. According to Ferguson’s Court Clerk, it is not entirely uncommon for these refund checks to be returned as undeliverable and become “unclaimed property.”
C. Ferguson Law Enforcement Practices Disproportionately Harm Ferguson’s African-American Residents and Are Driven in Part by Racial Bias
Ferguson’s police and municipal court practices disproportionately harm African Americans. Further, our investigation found substantial evidence that this harm stems in part from intentional discrimination in violation of the Constitution.
African Americans experience disparate impact in nearly every aspect of Ferguson’s law enforcement system. Despite making up 67% of the population, African Americans accounted for 85% of FPD’s traffic stops, 90% of FPD’s citations, and 93% of FPD’s arrests from 2012 to 2014. Other statistical disparities, set forth in detail below, show that in Ferguson:
 African Americans are 2.07 times more likely to be searched during a vehicular stop but are 26% less likely to have contraband found on them during a search. They are 2.00 times more likely to receive a citation and 2.37 times more likely to be arrested following a vehicular stop.
 African Americans have force used against them at disproportionately high rates, accounting for 88% of all cases from 2010 to August 2014 in which an FPD officer reported using force. In all 14 uses of force involving a canine bite for which we have information about the race of the person bitten, the person was African American.
 African Americans are more likely to receive multiple citations during a single incident, receiving four or more citations on 73 occasions between October 2012 and July 2014, whereas non-African Americans received four or more citations only twice during that period.
 African Americans account for 95% of Manner of Walking charges; 94% of all Fail to Comply charges; 92% of all Resisting Arrest charges; 92% of all Peace Disturbance charges; and 89% of all Failure to Obey charges.38
 African Americans are 68% less likely than others to have their cases dismissed by the Municipal Judge, and in 2013 African Americans accounted for 92% of cases in which an arrest warrant was issued.
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.
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 African Americans account for 96% of known arrests made exclusively because of an outstanding municipal warrant.
These disparities are not the necessary or unavoidable results of legitimate public safety efforts. In fact, the practices that lead to these disparities in many ways undermine law enforcement effectiveness. See, e.g., Jack Glaser, Suspect Race: Causes and Consequence of Racial Profiling 96-126 (2015) (because profiling can increase crime while harming communities, it has a “high risk” of contravening the core police objectives of controlling crime and promoting public safety). The disparate impact of these practices thus violates federal law, including Title VI and the Safe Streets Act.
The racially disparate impact of Ferguson’s practices is driven, at least in part, by intentional discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Racial bias and stereotyping is evident from the facts, taken together. This evidence includes: the consistency and magnitude of the racial disparities throughout Ferguson’s police and court enforcement actions; the selection and execution of police and court practices that disproportionately harm African Americans and do little to promote public safety; the persistent exercise of discretion to the detriment of African Americans; the apparent consideration of race in assessing threat; and the historical opposition to having African Americans live in Ferguson, which lingers among some today. We have also found explicit racial bias in the communications of police and court supervisors and that some officials apply racial stereotypes, rather than facts, to explain the harm African Americans experience due to Ferguson’s approach to law enforcement. “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). Based on this evidence as a whole, we have found that Ferguson’s law enforcement activities stem in part from a discriminatory purpose and thus deny African Americans equal protection of the laws in violation of the Constitution.
1. Ferguson’s Law Enforcement Actions Impose a Disparate Impact on African Americans that Violates Federal Law
African Americans are disproportionately represented at nearly every stage of Ferguson law enforcement, from initial police contact to final disposition of a case in municipal court. While FPD’s data collection and retention practices are deficient in many respects, the data that is collected by FPD is sufficient to allow for meaningful and reliable analysis of racial disparities. This data—collected directly by police and court officials—reveals racial disparities that are substantial and consistent across a wide range of police and court enforcement actions.
African Americans experience the harms of the disparities identified below as part of a comprehensive municipal justice system that, at each juncture, enforces the law more harshly against black people than others. The disparate impact of Ferguson’s enforcement actions is compounding: at each point in the enforcement process there is a higher likelihood that an African American will be subjected to harsher treatment; accordingly, as the adverse consequences imposed by Ferguson grow more and more severe, those consequences are imposed more and more disproportionately against African Americans. Thus, while 85% of
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FPD’s vehicle stops are of African Americans, 90% of FPD’s citations are issued to African Americans, and 92% of all warrants are issued in cases against African Americans. Strikingly, available data shows that of those subjected to one of the most severe actions this system routinely imposes—actual arrest for an outstanding municipal warrant—96% are African American.
a. Disparate Impact of FPD Practices
i. Disparate Impact of FPD Enforcement Actions Arising from Vehicular Stops
Pursuant to Missouri state law on racial profiling, Mo. Rev. Stat. § 590.650, FPD officers are required to collect race and other data during every traffic stop. While some law enforcement agencies collect more comprehensive data to identify and stem racial profiling, this information is sufficient to show that FPD practices exert a racially disparate impact along several dimensions.
FPD reported 11,610 vehicle stops between October 2012 and October 2014. African Americans accounted for 85%, or 9,875, of those stops, despite making up only 67% of the population. White individuals made up 15%, or 1,735, of stops during that period, despite representing 29% of the population. These differences indicate that FPD traffic stop practices may disparately impact black drivers.39 Even setting aside the question of whether there are racial disparities in FPD’s traffic stop practices, however, the data collected during those stops reliably shows statistically significant racial disparities in the outcomes people receive after being stopped. Unlike with vehicle stops, assessing the disparate impact of post-stop outcomes—such as the rate at which stops result in citations, searches, or arrests—is not dependent on population data or on assumptions about differential offending rates by race; instead, the enforcement actions imposed against stopped black drivers are compared directly to the enforcement actions imposed against stopped white drivers.
In Ferguson, traffic stops of black drivers are more likely to lead to searches, citations, and arrests than are stops of white drivers. Black people are significantly more likely to be searched during a traffic stop than white people. From October 2012 to October 2014, 11% of stopped black drivers were searched, whereas only 5% of stopped white drivers were searched.
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.
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Despite being searched at higher rates, African Americans are 26% less likely to have contraband found on them than whites: 24% of searches of African Americans resulted in a contraband finding, whereas 30% of searches of whites resulted in a contraband finding. This disparity exists even after controlling for the type of search conducted, whether a search incident to arrest, a consent search, or a search predicated on reasonable suspicion. The lower rate at which officers find contraband when searching African Americans indicates either that officers’ suspicion of criminal wrongdoing is less likely to be accurate when interacting with African Americans or that officers are more likely to search African Americans without any suspicion of criminal wrongdoing. Either explanation suggests bias, whether explicit or implicit.40 This lower hit rate for African Americans also underscores that this disparate enforcement practice is ineffective.
Other, more subtle indicators likewise show meaningful disparities in FPD’s search practices: of the 31 Terry stop searches FPD conducted during this period between October 2012 to October 2014, 30 were of black individuals; of the 103 times FPD asked both the driver and passenger to exit a vehicle during a search, the searched individuals were black in 95 cases; and, while only one search of a white person lasted more than half an hour (1% of all searches of white drivers), 59 searches of African Americans lasted that long (5% of all searches of black drivers).
Of all stopped black drivers, 91%, or 8,987, received citations, while 87%, or 1,501, of all stopped white drivers received a citation.41 891 stopped black drivers—10% of all stopped black drivers—were arrested as a result of the stop, whereas only 63 stopped white drivers—4% of all stopped white drivers—were arrested. This disparity is explainable in large part by the high number of black individuals arrested for outstanding municipal warrants issued for missed court payments and appearances. As we discuss below, African Americans are more likely to have warrants issued against them than whites and are more likely to be arrested for an outstanding warrant than their white counterparts. Notably, on 14 occasions FPD listed the only reason for an arrest following a traffic stop as “resisting arrest.” In all 14 of those cases, the person arrested was black.
These disparities in the outcomes that result from traffic stops remain even after regression analysis is used to control for non-race-based variables, including driver age; gender; the assignment of the officer making the stop; disparities in officer behavior; and the stated reason the stop was initiated. Upon accounting for differences in those variables, African Americans remained 2.07 times more likely to be searched; 2.00 times more likely to receive a citation; and 2.37 times more likely to be arrested than other stopped individuals. Each of these
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.
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disparities is statistically significant and would occur by chance less than one time in 1,000.42 The odds of these disparities occurring by chance together are significantly lower still.
ii. Disparate Impact of FPD’s Multiple Citation Practices
The substantial racial disparities that exist within the data collected from traffic stops are consistent with the disparities found throughout FPD’s practices. As discussed above, our investigation found that FPD officers frequently make discretionary choices to issue multiple citations during a single incident. Setting aside the fact that, in some cases, citations are redundant and impose duplicative penalties for the same offense, the issuance of multiples citations also disproportionately impacts African Americans. In 2013, for instance, more than 50% of all African Americans cited received multiple citations during a single encounter with FPD, whereas only 26% of non-African Americans did. Specifically, 26% of African Americans receiving a citation received two citations at once, whereas only 17% of white individuals received two citations at once. Those disparities are even greater for incidents that resulted in more than two citations: 15% of African Americans cited received three citations at the same time, whereas 6% of cited whites received three citations; and while 10% of cited African Americans received four or more citations at once, only 3% of cited whites received that many during a single incident. Each of these disparities is statistically significant, and would occur by chance less than one time in 1,000. Indeed, related data from an overlapping time period shows that, between October 2012 to July 2014, 38 black individuals received four citations during a single incident, compared with only two white individuals; and while 35 black individuals received five or more citations at once, not a single white person did.43
iii. Disparate Impact of Other FPD Charging Practices
From October 2012 to July 2014, African Americans accounted for 85%, or 30,525, of the 35,871 total charges brought by FPD—including traffic citations, summonses, and arrests. Non-African Americans accounted for 15%, or 5,346, of all charges brought during that period.44 These rates vary somewhat across different offenses. For example, African Americans represent a relatively low proportion of those charged with Driving While Intoxicated and Speeding on State Roads or Highways. With respect to speeding offenses for all roads, African Americans account for 72% of citations based on radar or laser, but 80% of citations based on other or unspecified methods. Thus, as evaluated by radar, African Americans violate the law at lower rates than as evaluated by FPD officers. Indeed, controlling for other factors, the disparity in speeding tickets between African Americans and non-African Americans is 48% larger when
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/1.0/en/DEC/10_SF1/QTP3/1600000US2923986 (last visited Feb. 26, 2015).
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citations are issued not on the basis of radar or laser, but by some other method, such as the officer’s own visual assessment. This difference is statistically significant.
Data on charges issued by FPD from 2011-2013 shows that, for numerous municipal offenses for which FPD officers have a high degree of discretion in charging, African Americans are disproportionately represented relative to their representation in Ferguson’s population. While African Americans make up 67% of Ferguson’s population, they make up 95% of Manner of Walking in Roadway charges; 94% of Failure to Comply charges; 92% of Resisting Arrest charges; 92% of Peace Disturbance charges; and 89% of Failure to Obey charges. Because these non-traffic offenses are more likely to be brought against persons who actually live in Ferguson than are vehicle stops, census data here does provide a useful benchmark for whether a pattern of racially disparate policing appears to exist. These disparities mean that African Americans in Ferguson bear the overwhelming burden of FPD’s pattern of unlawful stops, searches, and arrests with respect to these highly discretionary ordinances.
iv. Disparate Impact of FPD Arrests for Outstanding Warrants
FPD records show that once a warrant issues, racial disparities in FPD’s warrant execution practices make it exceedingly more likely for a black individual with an outstanding warrant to be arrested than a white individual with an outstanding warrant. Arrest data captured by FPD often fails to identify when a person is arrested solely on account of an outstanding warrant. Nonetheless, the data FPD collects during traffic stops pursuant to Missouri state requirements does capture information regarding when arrests are made for no other reason than that an arrest warrant was pending. Based upon that data, from October 2012 to October 2014, FPD arrested 460 individuals exclusively because the person had an outstanding arrest warrant. Of those 460 people arrested, 443, or 96%, were black. That African Americans are disproportionately impacted by FPD’s warrant execution practices is also reflected in the fact that, during the roughly six-month period from April to September 2014, African Americans accounted for 96% of those booked into the Ferguson City Jail at least in part because they were arrested for an outstanding municipal warrant.
v. Concerns Regarding Pedestrian Stops
Although available data enables an assessment of the disparate impact of many FPD practices, many other practices cannot be assessed statistically because of FPD’s inadequate data collection. FPD does not reliably collect or track data regarding pedestrian stops, or FPD officers’ conduct during those stops. Given this lack of data, we are unable to determine whether African Americans are disproportionately the subjects of pedestrian stops, or the rate of searches, arrests, or other post-pedestrian stop outcomes. We note, however, that during our investigation we have spoken with not only black community members who have been stopped by FPD officers, but also non-black community members and employees of local businesses who have observed FPD conduct pedestrian stops of others, all of whom universally report that pedestrian stops in Ferguson almost always involve African-American youth. Even though FPD does not specifically track pedestrian stops, other FPD records are consistent with those accounts. Arrest and other incident reports sometimes describe encounters that begin with pedestrian stops, almost all of which involve African Americans.
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b. Disparate Impact of Court Practices
Our investigation has also found that the rules and practices of the Ferguson municipal court also exert a disparate impact on African Americans. As discussed above, once a charge is filed in Ferguson municipal court, a number of procedural barriers imposed by the court combine to make it unnecessarily difficult to resolve the charge. Data created and maintained by the court show that black defendants are significantly more likely to be adversely impacted by those barriers. An assessment of every charge filed in Ferguson municipal court in 2011 shows that, over time, black defendants are more likely to have their cases persist for longer durations, more likely to face a higher number of mandatory court appearances and other requirements, and more likely to have a warrant issued against them for failing to meet those requirements.45
In light of the opaque court procedures previously discussed, the likelihood of running afoul of a court requirement increases when a case lasts for a longer period of time and results in more court encounters. Court cases involving black individuals typically last longer than those involving white individuals. Of the 2,369 charges filed against white defendants in 2011, over 63% were closed after six months. By contrast, only 34% of the 10,984 charges against black defendants were closed within that time period. 10% of black defendants, however, resolved their case between six months and a year from when it was filed, while 9% of white defendants required that much time to secure resolution. And, while 17% of black defendants resolved their charge over a year after it was brought against them, only 9% of white defendants required that much time. Each of these cases was ultimately resolved, in most instances by satisfying debts owed to the court; but this data shows substantial disparities between blacks and whites regarding how long it took to do so.
On average, African Americans are also more likely to have a high number of “events” occur before a case is resolved. The court’s records track all activities that occur in a case—from payments and court appearances to continuances and Failure to Appear charges. 11% of cases involving African Americans had three “events,” whereas 10% of cases involving white defendants had three events. 14% of cases involving black defendants had four to five events, compared with 9% of cases involving white defendants. Those disparities increase as the recorded number of events per case increases. Data show that there are ten or more events in 17% of cases involving black defendants but only 5% of cases involving white defendants. Given that an “event” can represent a variety of different kinds of occurrences, these particular disparities are perhaps less probative; nonetheless, they strongly suggest that black defendants have, on average, more encounters with the court during a single case than their white peers.
Given the figures above, it is perhaps unsurprising that the municipal court’s practice of issuing warrants to compel fine payments following a missed court appearance or missed payment has a disparate impact on black defendants. 92% of all warrants issued in 2013 were issued in cases involving an African-American defendant. This figure is disproportionate to the representation of African Americans in the court’s docket. Although the proportion of court cases involving black defendants has increased in recent years—81% of all cases filed in 2009,
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.
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compared with 85% of all cases filed in 2013—that proportion remains substantially below the proportion of warrants issued to African Americans.
These disparities are consistent with the evidence discussed above that African Americans are often unable to resolve municipal charges despite taking appropriate steps to do so, and the evidence discussed below suggesting that court officials exercise discretion in a manner that disadvantages the African Americans that appear before the court.
Notably, the evidence suggests that African Americans are not only disparately impacted by court procedures, but also by the court’s discretionary rulings in individual cases. Although court data did not enable a comprehensive assessment of disparities in fines that the court imposes, we did review fine data regarding ten different offenses and offense categories, including the five highly discretionary offenses disproportionately brought against African Americans noted above.46 That analysis suggests that there may be racial disparities in the court’s fine assessment practices. In analyzing the initial fines assessed for those ten offenses for each year from 2011-2013—30 data points in total—the average fine assessment was higher for African Americans than others in 26 of the 30 data points. For example, among the 53 Failure to Obey charges brought in 2013 that did not lead to added Failure to Appear fines—44 of which involved an African-American defendant—African Americans were assessed an average fine of $206, whereas the average fine for others was $147. The magnitude of racial disparities in fine amounts varied across the 30 yearly offense averages analyzed, but those disparities consistently disfavored African Americans.
Further, an evaluation of dismissal rates throughout the life of a case shows that, on average, an African-American defendant is 68% less likely than other defendants to have a case dismissed. In addition to cases that are “Dismissed,” court records also show cases that are “Voided” altogether. There are only roughly 400 cases listed as Voided from 2011-2013, but the data that is available for that relatively small number of Voided cases shows that African Americans are three times less likely to receive the Voided outcome than others.
c. Ferguson’s Racially Disparate Practices Violate Federal Law
This data shows that police and court practices impose a disparate impact on black individuals that itself violates the law. Title VI and the Safe Streets Act prohibit law enforcement agencies that receive federal financial assistance, such as FPD, from engaging in law enforcement activities that have an unnecessary disparate impact based on race, color, or national origin. 42 U.S.C. § 2000d. Title VI’s implementing regulations prohibit law enforcement agencies from using “criteria or methods of administration” that have an unnecessary disparate impact based on race, color, or national origin. 28 C.F.R. § 42.104(b)(2); see also Alexander v. Sandoval, 532 U.S. 275, 281-82 (2001). Similarly, the Safe Streets Act applies not only to intentional discrimination, but also to any law enforcement practices that
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.
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unnecessarily disparately impact an identified group based on the enumerated factors. 28 C.F.R. § 42.203. Cf. Charleston Housing Authority v. USDA, 419 F.3d 729, 741-42 (8th Cir. 2005) (finding in the related Fair Housing Act context that where official action imposes a racially disparate impact, the action can only be justified through a showing that it is necessary to nondiscriminatory objectives).
Thus, under these statutes, the discriminatory impact of Ferguson’s law enforcement practices—which is both unnecessary and avoidable—is unlawful regardless of whether it is intentional or not. As set forth below, these practices also violate the prohibitions against intentional discrimination contained within Title VI, the Safe Streets Act, and the Fourteenth Amendment.
2. Ferguson’s Law Enforcement Practices Are Motivated in Part by Discriminatory Intent in Violation of the Fourteenth Amendment and Other Federal Laws
The race-based disparities created by Ferguson’s law enforcement practices cannot be explained by chance or by any difference in the rates at which people of different races adhere to the law. These disparities occur, at least in part, because Ferguson law enforcement practices are directly shaped and perpetuated by racial bias. Those practices thus operate in violation of the Fourteenth Amendment’s Equal Protection Clause, which prohibits discriminatory policing on the basis of race. Whren, 517 U.S. at 813; Johnson v. Crooks, 326 F.3d 995, 999 (8th Cir. 2003).47
An Equal Protection Clause violation can occur where, as here, the official administration of facially neutral laws or policies results in a discriminatory effect that is motivated, at least in part, by a discriminatory purpose. See Washington v. Davis, 426 U.S. 229, 239-40 (1976). In assessing whether a given practice stems from a discriminatory purpose, courts conduct a “sensitive inquiry into such circumstantial and direct evidence of intent as may be available,” including historical background, contemporaneous statements by decision makers, and substantive departures from normal procedure. Vill. of Arlington Heights, 429 U.S. at 266; United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996). To violate the Equal Protection Clause, official action need not rest solely on racially discriminatory purposes; rather, official action violates the Equal Protection Clause if it is motivated, at least in part, by discriminatory purpose. Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).
We have uncovered significant evidence showing that racial bias has impermissibly played a role in shaping the actions of police and court officials in Ferguson. That evidence, detailed below, includes: 1) the consistency and magnitude of the racial disparities found throughout police and court enforcement actions; 2) direct communications by police supervisors and court officials that exhibit racial bias, particularly against African Americans; 3) a number of other communications by police and court officials that reflect harmful racial stereotypes; 4) the background and historic context surrounding FPD’s racially disparate enforcement practices; 5)
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.
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the fact that City, police, and court officials failed to take any meaningful steps to evaluate or address the race-based impact of its law enforcement practices despite longstanding and widely reported racial disparities, and instead consistently reapplied police and court practices known to disparately impact African Americans.
a. Consistency and Magnitude of Identified Racial Disparities
In assessing whether an official action was motivated in part by discriminatory intent, the actual impact of the action and whether it “bears more heavily on one race or another” may “provide an important starting point.” Vill. of Arlington Heights, 429 U.S. at 266 (internal citations and quotation marks omitted). Indeed, in rare cases, statistical evidence of discriminatory impact may be sufficiently probative to itself establish discriminatory intent. Hazelwood School Dist. v. United States, 433 U.S. 299, 307-08 (1977) (noting in the Title VII context that where “gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination”).
The race-based disparities we have found are not isolated or aberrational; rather, they exist in nearly every aspect of Ferguson police and court operations. As discussed above, statistical analysis shows that African Americans are more likely to be searched but less likely to have contraband found on them; more likely to receive a citation following a stop and more likely to receive multiple citations at once; more likely to be arrested; more likely to have force used against them; more likely to have their case last longer and require more encounters with the municipal court; more likely to have an arrest warrant issued against them by the municipal court; and more likely to be arrested solely on the basis of an outstanding warrant. As noted above, many of these disparities would occur by chance less than one time in 1000.
These disparities provide significant evidence of discriminatory intent, as the “impact of an official action is often probative of why the action was taken in the first place since people usually intend the natural consequences of their actions.” Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 487 (1997); see also Davis, 426 U.S. at 242 (“An invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the [practice] bears more heavily on one race than another.”). These disparities are unexplainable on grounds other than race and evidence that racial bias, whether implicit or explicit, has shaped law enforcement conduct.48
b. Direct Evidence of Racial Bias
Our investigation uncovered direct evidence of racial bias in the communications of influential Ferguson decision makers. In email messages and during interviews, several court and law enforcement personnel expressed discriminatory views and intolerance with regard to race, religion, and national origin. The content of these communications is unequivocally derogatory, dehumanizing, and demonstrative of impermissible bias.
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).
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We have discovered evidence of racial bias in emails sent by Ferguson officials, all of whom are current employees, almost without exception through their official City of Ferguson email accounts, and apparently sent during work hours. These email exchanges involved several police and court supervisors, including FPD supervisors and commanders. The following emails are illustrative:
 A November 2008 email stated that President Barack Obama would not be President for very long because “what black man holds a steady job for four years.”
 A March 2010 email mocked African Americans through speech and familial stereotypes, using a story involving child support. One line from the email read: “I be so glad that dis be my last child support payment! Month after month, year after year, all dose payments!”
 An April 2011 email depicted President Barack Obama as a chimpanzee.
 A May 2011 email stated: “An African-American woman in New Orleans was admitted into the hospital for a pregnancy termination. Two weeks later she received a check for $5,000. She phoned the hospital to ask who it was from. The hospital said, ‘Crimestoppers.’”
 A June 2011 email described a man seeking to obtain “welfare” for his dogs because they are “mixed in color, unemployed, lazy, can’t speak English and have no frigging clue who their Daddies are.”
 An October 2011 email included a photo of a bare-chested group of dancing women, apparently in Africa, with the caption, “Michelle Obama’s High School Reunion.”
 A December 2011 email included jokes that are based on offensive stereotypes about Muslims.
Our review of documents revealed many additional email communications that exhibited racial or ethnic bias, as well as other forms of bias. Our investigation has not revealed any indication that any officer or court clerk engaged in these communications was ever disciplined. Nor did we see a single instance in which a police or court recipient of such an email asked that the sender refrain from sending such emails, or any indication that these emails were reported as inappropriate. Instead, the emails were usually forwarded along to others.49
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.
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Critically, each of these email exchanges involved supervisors of FPD's patrol and court operations.50 FPD patrol supervisors are responsible for holding officers accountable to governing laws, including the Constitution, and helping to ensure that officers treat all people equally under the law, regardless of race or any other protected characteristic. The racial animus and stereotypes expressed by these supervisors suggest that they are unlikely to hold an officer accountable for discriminatory conduct or to take any steps to discourage the development or perpetuation of racial stereotypes among officers.
Similarly, court supervisors have significant influence and discretion in managing the court’s operations and in processing individual cases. As discussed in Parts I and III.B of this report, our investigation has found that a number of court rules and procedures are interpreted and applied entirely at the discretion of the court clerks. These include: whether to require a court appearance for certain offenses; whether to grant continuances or other procedural requests; whether to accept partial payment of an owed fine; whether to cancel a warrant without a bond payment; and whether to provide individuals with documentation enabling them to have a suspended driver’s license reinstated before the full fine owed has been paid off. Court clerks are also largely responsible for setting bond amounts. The evidence we found thus shows not only racial bias, but racial bias by those with considerable influence over the outcome of any given court case.
This documentary evidence of explicit racial bias is consistent with reports from community members indicating that some FPD officers use racial epithets in dealing with members of the public. We spoke with one African-American man who, in August 2014, had an argument in his apartment to which FPD officers responded, and was immediately pulled out of the apartment by force. After telling the officer, “you don’t have a reason to lock me up,” he claims the officer responded: “N*****, I can find something to lock you up on.” When the man responded, “good luck with that,” the officer slammed his face into the wall, and after the man fell to the floor, the officer said, “don’t pass out motherf****r because I’m not carrying you to my car.” Another young man described walking with friends in July 2014 past a group of FPD officers who shouted racial epithets at them as they passed.
Courts have widely acknowledged that direct statements exhibiting racial bias are exceedingly rare, and that such statements are not necessary for establishing the existence of discriminatory purpose. See, e.g., Hayden v. Paterson, 594 F.3d 150, 163 (2d Cir. 2010) (noting that “discriminatory intent is rarely susceptible to direct proof”); see also Thomas v. Eastman Kodak Co., 183 F.3d 38, 64 (1st Cir. 1999) (noting in Title VII case that “[t]here is no requirement that a plaintiff . . . must present direct, ‘smoking gun’ evidence of racially biased decision making in order to prevail”); Robinson v. Runyon, 149 F.3d 507, 513 (6th Cir. 1998) (noting in Title VII case that “[r]arely will there be direct evidence from the lips of the defendant proclaiming his or her racial animus”). Where such evidence does exist, however, it is highly probative of discriminatory intent. That is particularly true where, as here, the communications exhibiting bias are made by those with considerable decision-making authority. See Doe v.
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.
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Mamaroneck, 462 F. Supp. 2d 520, 550 (S.D.N.Y. 2006); Eberhart v. Gettys, 215 F. Supp. 2d 666, 678 (M.D.N.C. 2002).
c. Evidence of Racial Stereotyping
Several Ferguson officials told us during our investigation that it is a lack of “personal responsibility” among African-American members of the Ferguson community that causes African Americans to experience disproportionate harm under Ferguson’s approach to law enforcement. Our investigation suggests that this explanation is at odd with the facts. While there are people of all races who may lack personal responsibility, the harm of Ferguson’s approach to law enforcement is largely due to the myriad systemic deficiencies discussed above. Our investigation revealed African Americans making extraordinary efforts to pay off expensive tickets for minor, often unfairly charged, violations, despite systemic obstacles to resolving those tickets. While our investigation did not indicate that African Americans are disproportionately irresponsible, it did reveal that, as the above emails reflect, some Ferguson decision makers hold negative stereotypes about African Americans, and lack of personal responsibility is one of them. Application of this stereotype furthers the disproportionate impact of Ferguson’s police and court practices. It causes court and police decision makers to discredit African Americans’ explanations for not being able to pay tickets and allows officials to disown the harms of Ferguson’s law enforcement practices.
The common practice among Ferguson officials of writing off tickets further evidences a double standard grounded in racial stereotyping. Even as Ferguson City officials maintain the harmful stereotype that black individuals lack personal responsibility—and continue to cite this lack of personal responsibility as the cause of the disparate impact of Ferguson’s practices— white City officials condone a striking lack of personal responsibility among themselves and their friends. Court records and emails show City officials, including the Municipal Judge, the Court Clerk, and FPD supervisors assisting friends, colleagues, acquaintances, and themselves in eliminating citations, fines, and fees. For example:
 In August 2014, the Court Clerk emailed Municipal Judge Brockmeyer a copy of a Failure to Appear notice for a speeding violation issued by the City of Breckenridge, and asked: “[FPD patrol supervisor] came to me this morning, could you please take [care] of this for him in Breckenridge?” The Judge replied: “Sure.” Judge Brockmeyer also serves as Municipal Judge in Breckenridge.
 In October 2013, Judge Brockmeyer sent Ferguson’s Prosecuting Attorney an email with the subject line “City of Hazelwood vs. Ronald Brockmeyer.” The Judge wrote: “Pursuant to our conversation, attached please find the red light camera ticket received by the undersigned. I would appreciate it if you would please see to it that this ticket is dismissed.” The Prosecuting Attorney, who also serves as prosecuting attorney in Hazelwood, responded: “I worked on red light matters today and dismissed the ticket that you sent over. Since I entered that into the system today, you may or may not get a second notice – you can just ignore that.”
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 In August 2013, an FPD patrol supervisor wrote an email entitled “Oops” to the Prosecuting Attorney regarding a ticket his relative received in another municipality for traveling 59 miles per hour in a 40 miles-per-hour zone, noting “[h]aving it dismissed would be a blessing.” The Prosecuting Attorney responded that the prosecutor of that other municipality promised to nolle pros the ticket. The supervisor responded with appreciation, noting that the dismissal “[c]ouldn’t have come at a better time.”
 Also in August 2013, Ferguson’s Mayor emailed the Prosecuting Attorney about a parking ticket received by an employee of a non-profit day camp for which the Mayor sometimes volunteers. The Mayor wrote that the person “shouldn’t have left his car unattended there, but it was an honest mistake” and stated, “I would hate for him to have to pay for this, can you help?” The Prosecuting Attorney forwarded the email to the Court Clerk, instructing her to “NP [nolle prosequi, or not prosecute] this parking ticket.”
 In November 2011, a court clerk received a request from a friend to “fix a parking ticket” received by the friend’s coworker’s wife. After the ticket was faxed to the clerk, she replied: “It’s gone baby!”
 In March 2014, a friend of the Court Clerk’s relative emailed the Court Clerk with a scanned copy of a ticket asking if there was anything she could do to help. She responded: “Your ticket of $200 has magically disappeared!” Later, in June 2014, the same person emailed the Court Clerk regarding two tickets and asked: “Can you work your magic again? It would be deeply appreciated.” The Clerk later informed him one ticket had been dismissed and she was waiting to hear back about the second ticket.
These are just a few illustrative examples. It is clear that writing off tickets between the Ferguson court staff and the clerks of other municipal courts in the region is routine. Email exchanges show that Ferguson officials secured or received ticket write-offs from staff in a number of neighboring municipalities. There is evidence that the Court Clerk and a City of Hazelwood clerk “fixed” at least 12 tickets at each other’s request, and that the Court Clerk successfully sought help with a ticket from a clerk in St. Ann. And in April 2011, a court administrator in the City of Pine Lawn emailed the Ferguson Court Clerk to have a warrant recalled for a person applying for a job with the Pine Lawn Police Department. The court administrator explained that “[a]fter he gets the job, he will have money to pay off his fines with Ferguson.” The Court Clerk recalled the warrant and issued a new court date for more than two months after the request was made.
City officials’ application of the stereotype that African Americans lack “personal responsibility” to explain why Ferguson’s practices harm African Americans, even as these same City officials exhibit a lack of personal—and professional—responsibility in handling their own and their friends’ code violations, is further evidence of discriminatory bias on the part of decision makers central to the direction of law enforcement in Ferguson.
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d. Historical Background
Until the 1960s, Ferguson was a “sundown town” where African Americans were banned from the City after dark. The City would block off the main road from Kinloch, which was a poor, all-black suburb, “with a chain and construction materials but kept a second road open during the day so housekeepers and nannies could get from Kinloch to jobs in Ferguson.”51 During our investigative interviews, several older African-American residents recalled this era in Ferguson and recounted that African Americans knew that, for them, the City was “off-limits.”
The Ferguson of half a century ago is not the same Ferguson that exists today. We heard from many residents—black and white—who expressed pride in their community, especially with regard to the fact that Ferguson is one of the most demographically diverse communities in the area. Pride in this aspect of Ferguson is well founded; Ferguson is more diverse than most of the United States, and than many of its surrounding cities. It is clear that many Ferguson residents of different races genuinely embrace that diversity.
But we also found evidence during our investigation that some within Ferguson still have difficulty coming to terms with Ferguson’s changing demographics and seeing Ferguson’s African American and white residents as equals in civic life. While total population rates have remained relatively constant over the last three decades, the portion of Ferguson residents who are African American has increased steadily but dramatically, from 25% in 1990 to 67% in 2010. Some individuals, including individuals charged with discretionary enforcement decisions in either the police department or the court, have expressed concerns about the increasing number of African Americans that have moved to Ferguson in recent years. Similarly, some City officials and residents we spoke with explicitly distinguished Ferguson’s African-American residents from Ferguson’s “normal” residents or “regular” people. One white third-generation Ferguson resident told us that in many ways Ferguson is “progressive and quite vibrant,” while in another it is “typical—trying to hang on to its ‘whiteness.’”
On its own, Ferguson’s historical backdrop as a racially segregated community that did not treat African Americans equally under the law does not demonstrate that law enforcement practices today are motivated by impermissible discriminatory intent. It is one factor to consider, however, especially given the evidence that, among some in Ferguson, these attitudes persist today. As courts have instructed, the historical background of an official practice that leads to discriminatory effects is, together with other evidence, probative as to whether that practice is grounded in part in discriminatory purposes. See Vill. of Arlington Heights, 429 U.S. at 267; see also Rogers v. Lodge, 458 U.S. 613, passim (1982).
e. Failure to Evaluate or Correct Practices that Have Long Resulted in a Racially Disparate Impact
That the discriminatory effect of Ferguson’s law enforcement practices is the result of intentional discrimination is further evidenced by the fact that City, police, and court officials have consistently failed to evaluate or reform—and in fact appear to have redoubled their
51 Richard Rothstein, The Making of Ferguson, Econ. Policy Inst. (Oct. 2014), available at http://www.epi.org/publication/making-ferguson/.
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commitment to—the very practices that have plainly and consistently exerted a disparate impact on African Americans.
The disparities we have identified appear to be longstanding. The statistical analysis performed as part of our investigation relied upon police and court data from recent years, but FPD has collected data related to vehicle stops pursuant to state requirements since 2000. Each year, that information is gathered by FPD, sent to the office of the Missouri Attorney General, and published on the Missouri Attorney General’s webpage.52 The data show disparate impact on African Americans in Ferguson for as long as that data has been reported. Based on that racial profiling data, Missouri publishes a “Disparity Index” for each reporting municipality, calculated as the percent of stops of a certain racial group compared with that group’s local population rate. In each of the last 14 years, the data show that African Americans are “over represented” in FPD’s vehicular stops.53 That data also shows that in most years, FPD officers searched African Americans at higher rates than others, but found contraband on African Americans at lower rates.
In 2001, for example, African Americans comprised about the same proportion of the population as whites, but while stops of white drivers accounted for 1,495 stops, African Americans accounted for 3,426, more than twice as many. While a white person stopped that year was searched in 6% of cases, a black person stopped was searched in 14% of cases. That same year, searches of whites resulted in a contraband finding in 21% of cases, but searches of African Americans only resulted in a contraband finding in 16% of cases. Similar disparities were identified in most other years, with varying degrees of magnitude. In any event, the data reveals a pattern of racial disparities in Ferguson’s police activities. That pattern appears to have been ignored by Ferguson officials.
That the extant racial disparities are intentional is also evident in the fact that Ferguson has consistently returned to the unlawful practices described in Parts III.A. and B. of this Report knowing that they impose a persistent disparate impact on African Americans. City officials have continued to encourage FPD to stop and cite aggressively as part of its revenue generation efforts, even though that encouragement and increased officer discretion has yielded disproportionate African-American representation in FPD stops and citations. Until we recommended it during our investigation, FPD officials had not restricted officer discretion to issue multiple citations at once, even though the application of that discretion has led officers to issue far more citations to African Americans at once than others, on average, and even though only black individuals (35 in total) ever received five or more citations at once over a three-year period. FPD has not provided further guidance to constrain officer discretion in conducting searches, even though FPD officers have, for years, searched African Americans at higher rates than others but found contraband during those searches less often than in searches of individuals of other races.
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.
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Similarly, City officials have not taken any meaningful steps to contain the discretion of court clerks to grant continuances, clear warrants, or enable driver’s license suspensions to be lifted, even though those practices have resulted in warrants being issued and executed at highly disproportionate rates against African Americans. Indeed, until the City of Ferguson repealed the Failure to Appear statute in September 2014—after this investigation began—the City had not taken meaningful steps to evaluate or reform any of the court practices described in this Report, even though the implementation of those practices has plainly exerted a disparate impact on African Americans.
FPD also has not significantly altered its use-of-force tactics, even though FPD records make clear that current force decisions disparately impact black suspects, and that officers appear to assess threat differently depending upon the race of the suspect. FPD, for example, has not reviewed or revised its canine program, even though available records show that canine officers have exclusively set their dogs against black individuals, often in cases where doing so was not justified by the danger presented. In many incidents in which officers used significant levels of force, the facts as described by the officers themselves did not appear to support the force used, especially in light of the fact that less severe tactics likely would have been equally effective. In some of these incidents, law enforcement experts with whom we consulted could find no explanation other than race to explain the severe tactics used.
During our investigation, FPD officials told us that their police tactics are responsive to the scenario at hand. But records suggest that, where a suspect or group of suspects is white, FPD applies a different calculus, typically resulting in a more measured law enforcement response. In one 2012 incident, for example, officers reported responding to a fight in progress at a local bar that involved white suspects. Officers reported encountering “40-50 people actively fighting, throwing bottles and glasses, as well as chairs.” The report noted that “one subject had his ear bitten off.” While the responding officers reported using force, they only used “minimal baton and flashlight strikes as well as fists, muscling techniques and knee strikes.” While the report states that “due to the amount of subjects fighting, no physical arrests were possible,” it notes also that four subjects were brought to the station for “safekeeping.” While we have found other evidence that FPD later issued a wanted for two individuals as a result of the incident, FPD’s response stands in stark contrast to the actions officers describe taking in many incidents involving black suspects, some of which we earlier described.
Based on this evidence, it is apparent that FPD requires better training, limits on officer discretion, increased supervision, and more robust accountability systems, not only to ensure that officers act in accordance with the Fourth Amendment, but with the Fourteenth Amendment as well. FPD has failed to take any such corrective action, and instead has actively endorsed and encouraged the perpetuation of the practices that have led to such stark disparities. This, together with the totality of the facts that we have found, evidences that those practices exist, at least in part, on account of an unconstitutional discriminatory purpose. See Feeney, 442 U.S. at 279 n.24 (noting that the discriminatory intent inquiry is “practical,” because what “any official entity is ‘up to’ may be plain from the results its actions achieve, or the results they avoid”).
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D. Ferguson Law Enforcement Practices Erode Community Trust, Especially Among Ferguson’s African-American Residents, and Make Policing Less Effective, More Difficult, and Less Safe
The unlawful police misconduct and court practices described above have generated great distrust of Ferguson law enforcement, especially among African Americans.54 As described below, other FPD practices further contribute to distrust, including FPD’s failure to hold officers accountable for misconduct, failure to implement community policing principles, and the lack of diversity within FPD. Together, these practices severely damaged the relationship between African Americans and the Ferguson Police Department long before Michael Brown’s shooting death in August 2014. This divide has made policing in Ferguson less effective, more difficult, and more likely to discriminate.
1. Ferguson’s Unlawful Police and Court Practices Have Led to Distrust and Resentment Among Many in Ferguson
The lack of trust between a significant portion of Ferguson’s residents, especially its African-American residents, and the Ferguson Police Department has become, since August 2014, undeniable. The causes of this distrust and division, however, have been the subject of debate. City and police officials, and some other Ferguson residents, have asserted that this lack of meaningful connection with much of Ferguson’s African-American community is due to the fact that they are “transient” renters; that they do not appreciate how much the City of Ferguson does for them; that “pop-culture” portrays alienating themes; or because of “rumors” that the police and municipal court are unyielding because they are driven by raising revenue.
Our investigation showed that the disconnect and distrust between much of Ferguson’s African-American community and FPD is caused largely by years of the unlawful and unfair law enforcement practices by Ferguson’s police department and municipal court described above. In the documents we reviewed, the meetings we observed and participated in, and in the hundreds of conversations Civil Rights Division staff had with residents of Ferguson and the surrounding area, many residents, primarily African-American residents, described being belittled, disbelieved, and treated with little regard for their legal rights by the Ferguson Police Department. One white individual who has lived in Ferguson for 48 years told us that it feels like Ferguson’s police and court system is “designed to bring a black man down . . . [there are] no second chances.” We heard from African-American residents who told us of Ferguson’s “long history of targeting blacks for harassment and degrading treatment,” and who described the steps they take to avoid this—from taking routes to work that skirt Ferguson to moving out of state. An African-American minister of a church in a nearby community told us that he doesn’t allow his two sons to drive through Ferguson out of “fear that they will be targeted for arrest.”
African Americans’ views of FPD are shaped not just by what FPD officers do, but by how they do it. During our investigation, dozens of African Americans in Ferguson told us of
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.
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verbal abuse by FPD officers during routine interactions, and these accounts are consistent with complaints people have made about FPD for years. In December 2011, for example, an AfricanAmerican man alleged that as he was standing outside of Wal-Mart, an officer called him a “stupid motherf****r” and a “bastard.” According to the man, a lieutenant was on the scene and did nothing to reproach the officer, instead threatening to arrest the man. In April 2012, officers allegedly called an African-American woman a “bitch” and a “mental case” at the jail following an arrest. In June 2011, a 60-year-old man complained that an officer verbally harassed him while he stood in line to see the judge in municipal court. According to the man, the officer repeatedly ordered him to move forward as the line advanced and, because he did not advance far enough, turned to the other court-goers and joked, “he is hooked on phonics.”
Another concern we heard from many African-American residents, and saw in the files we reviewed, was of casual intimidation by FPD officers, including threats to draw or fire their weapons, often for seemingly little or no cause. In September 2012, a 28-year resident of Ferguson complained to FPD about a traffic stop during which a lieutenant approached with a loud and confrontational manner with his hand on his holstered gun. The resident, who had a military police background, noted that the lieutenant’s behavior, especially having his hand on his gun, ratcheted up the tension level, and he questioned why the lieutenant had been so aggressive. In another incident captured on video and discussed below in more detail, an officer placed his gun on a wall or post and pointed it back and forth to each of two store employees as he talked to them while they took the trash out late one night. In another case discussed above, a person reported that an FPD officer removed his ECW during a traffic stop and continuously tapped the ECW on the roof of the person’s car. These written complaints reported to FPD are consistent with complaints we heard from community members during our investigation about officers casually threatening to hurt or even shoot them.
It appears that many police and City officials were unaware of this distrust and fear of Ferguson police among African Americans prior to August 2014. Ferguson’s Chief, for example, told us that prior to the Michael Brown shooting he thought community-police relations were good. During our investigation, however, City and police leadership, and many officers of all ranks, acknowledged a deep divide between police and some Ferguson residents, particularly black residents. Mayor Knowles acknowledged that there is “clearly mistrust” of FPD by many community members, including a “systemic problem” with youth not wanting to work with police. One FPD officer estimated that about a quarter of the Ferguson community distrusts the police department.
A growing body of research, alongside decades of police experience, is consistent with what our investigation found in Ferguson: that when police and courts treat people unfairly, unlawfully, or disrespectfully, law enforcement loses legitimacy in the eyes of those who have experienced, or even observed, the unjust conduct. See, e.g., Tom R. Tyler & Yuen J. Huo, Trust in the Law: Encouraging Public Cooperation with the Police and Courts (2002). Further, this loss of legitimacy makes individuals more likely to resist enforcement efforts and less likely to cooperate with law enforcement efforts to prevent and investigate crime. See, e.g., Jason Sunshine & Tom R. Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing, 37 Law & Soc’y Rev. 513, 534-36 (2003); Promoting Cooperative Strategies to Reduce Racial Profiling 20-21 (U.S. Dep’t of Justice, Office of Community
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Oriented Policing Services, 2008) (“Being viewed as fair and just is critical to successful policing in a democracy. When the police are perceived as unfair in their enforcement, it will undermine their effectiveness.”); Ron Davis et al., Exploring the Role of the Police in Prisoner Reentry 13-14 (Nat’l Inst. of Justice, New Perspectives in Policing, July 2012) (“Increasingly, research is supporting the notion that legitimacy is an important factor in the effectiveness of law, and the establishment and maintenance of legitimacy are particularly important in the context of policing.”) (citations omitted). To improve community trust and police effectiveness, Ferguson must ensure not only that its officers act in accord with the Constitution, but that they treat people fairly and respectfully.
2. FPD’s Exercise of Discretion, Even When Lawful, Often Undermines Community Trust and Public Safety
Even where lawful, many discretionary FPD enforcement actions increase distrust and significantly decrease the likelihood that individuals will seek police assistance even when they are victims of crime, or that they will cooperate with the police to solve or prevent other crimes. Chief Jackson told us “we don’t get cooperating witnesses” from the apartment complexes. Consistent with this statement, our review of documents and our conversations with Ferguson residents revealed many instances in which they are reluctant to report being victims of crime or to cooperate with police, and many instances in which FPD imposed unnecessary negative consequences for doing so.
In one instance, for example, a woman called FPD to report a domestic disturbance. By the time the police arrived, the woman’s boyfriend had left. The police looked through the house and saw indications that the boyfriend lived there. When the woman told police that only she and her brother were listed on the home’s occupancy permit, the officer placed the woman under arrest for the permit violation and she was jailed. In another instance, after a woman called police to report a domestic disturbance and was given a summons for an occupancy permit violation, she said, according to the officer’s report, that she “hated the Ferguson Police Department and will never call again, even if she is being killed.”
In another incident, a young African-American man was shot while walking on the road with three friends. The police department located and interviewed two of the friends about the shooting. After the interview, they arrested and jailed one of these cooperating witnesses, who was 19 years old, on an outstanding municipal warrant.
We also reviewed many instances in which FPD officers arrested individuals who sought to care for loved ones who had been hurt. In one instance from May 2014, for example, a man rushed to the scene of a car accident involving his girlfriend, who was badly injured and bleeding profusely when he arrived. He approached and tried to calm her. When officers arrived they treated him rudely, according to the man, telling him to move away from his girlfriend, which he did not want to do. They then immediately proceeded to handcuff and arrest him, which, officers assert, he resisted. EMS and other officers were not on the scene during this arrest, so the accident victim remained unattended, bleeding from her injuries, while officers were arresting the boyfriend. Officers charged the man with five municipal code violations (Resisting Arrest, Disorderly Conduct, Assault on an Officer, Obstructing Government Operations, and Failure to
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Comply) and had his vehicle towed and impounded. In an incident from 2013, a woman sought to reach her fiancé, who was in a car accident. After she refused to stay on the sidewalk as the officer ordered, she was arrested and jailed. While it is sometimes both essential and difficult to keep distraught family from being in close proximity to their loved ones on the scene of an accident, there is rarely a need to arrest and jail them rather than, at most, detain them on the scene.
Rather than view these instances as opportunities to convey their compassion for individuals at times of crisis even as they maintain order, FPD appears instead to view these and similar incidents we reviewed as opportunities to issue multiple citations and make arrests. For very little public safety benefit, FPD loses opportunities to build community trust and respect, and instead further alienates potential allies in crime prevention.
3. FPD’s Failure to Respond to Complaints of Officer Misconduct Further Erodes Community Trust
Public 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
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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
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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 noncomplaint 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
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.
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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
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.
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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 FPDmarked 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 Trust
Alongside 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
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.
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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 12hour 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 12hour 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
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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 Trust
While 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 AfricanAmerican 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
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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 AfricanAmerican 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 policecommunity 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.
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.
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V. CHANGES NECESSARY TO REMEDY FERGUSON’S UNLAWFUL LAW ENFORCEMENT PRACTICES AND REPAIR COMMUNITY TRUST
The problems identified within this letter reflect deeply entrenched practices and priorities that are incompatible with lawful and effective policing and that damage community trust. Addressing those problems and repairing the City’s relationship with the community will require a fundamental redirection of Ferguson’s approach to law enforcement, including the police and court practices that reflect and perpetuate this approach.
Below we set out broad recommendations for changes that Ferguson should make to its police and court practices to correct the constitutional violations our investigation identified. Ensuring meaningful, sustainable, and verifiable reform will require that these and other measures be part of a court-enforceable remedial process that includes involvement from community stakeholders as well as independent oversight. In the coming weeks, we will seek to work with the City of Ferguson toward developing and reaching agreement on an appropriate framework for reform.
A. Ferguson Police Practices
1. Implement a Robust System of True Community Policing
Many of the recommendations included below would require a shift from policing to raise revenue to policing in partnership with the entire Ferguson community. Developing these relationships will take time and considerable effort. FPD should:
a. Develop and put into action a policy and detailed plan for comprehensive implementation of community policing and problem-solving principles. Conduct outreach and involve the entire community in developing and implementing this plan;
b. Increase opportunities for officers to have frequent, positive interactions with people outside of an enforcement context, especially groups that have expressed high levels of distrust of police. Such opportunities may include police athletic leagues and similar informal activities;
c. Develop community partnerships to identify crime prevention priorities, with a focus on disconnected areas, such as Ferguson’s apartment complexes, and disconnected groups, such as much of Ferguson’s African-American youth;
d. Modify officer deployment patterns and scheduling (such as moving away from the current 12-hour shift and assigning officers to patrol the same geographic areas consistently) to facilitate participating in crime prevention projects and familiarity with areas and people;
e. Train officers on crime-prevention, officer safety, and anti-discrimination advantages of community policing. Train officers on mechanics of community policing and their role in implementing it;
f. Measure and evaluate individual, supervisory, and agency police performance on community engagement, problem-oriented-policing projects, and crime prevention, rather than on arrest and citation productivity.
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2. Focus Stop, Search, Ticketing and Arrest Practices on Community Protection
FPD must fundamentally change the way it conducts stops and searches, issues citations and summonses, and makes arrests. FPD officers must be trained and required to abide by the law. In addition, FPD enforcement efforts should be reoriented so that officers are required to take enforcement action because it promotes public safety, not simply because they have legal authority to act. To do this, FPD should:
a. Prohibit the use of ticketing and arrest quotas, whether formal or informal; b. Require that officers report in writing all stops, searches and arrests, including
pedestrian stops, and that their reports articulate the legal authority for the law enforcement action and sufficient description of facts to support that authority; c. Require documented supervisory approval prior to:
1) Issuing any citation/summons that includes more than two charges; 2) Making an arrest on any of the following charges:
i. Failure to Comply/Obey; ii. Resisting Arrest; iii. Disorderly Conduct/Disturbing the Peace; iv. Obstruction of Government Operations; 3) Arresting or ticketing an individual who sought police aid, or who is cooperating with police in an investigation; 4) Arresting on a municipal warrant or wanted; d. Revise Failure to Comply municipal code provision to bring within constitutional limits, and provide sufficient guidance so that all stops, citations, and arrests based on the provision comply with the Constitution; e. Train officers on proper use of Failure to Comply charge, including elements of the offense and appropriateness of the charge for interference with police activity that threatens public safety; f. Require that applicable legal standards are met before officers conduct pat-downs or vehicle searches. Prohibit searches based on consent for the foreseeable future; g. Develop system of correctable violation, or “fix-it” tickets, and require officers to issue fix-it tickets wherever possible and absent contrary supervisory instruction; h. Develop and implement policy and training regarding appropriate police response to activities protected by the First Amendment, including the right to observe, record, and protest police action; i. Provide initial and regularly recurring training on Fourth Amendment constraints on police action, as well as responsibility within FPD to constrain action beyond what Fourth Amendment requires in interest of public safety and community trust; j. Discontinue use of “wanteds” or “stop orders” and prohibit officers from conducting stops, searches, or arrests on the basis of “wanteds” or “stop orders” issued by other agencies.
3. Increase Tracking, Review, and Analysis of FPD Stop, Search, Ticketing and Arrest Practices
At the first level of supervision and as an agency, FPD must review more stringently officers’ stop, search, ticketing, and arrest practices to ensure that officers are complying with the
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Constitution and department policy, and to evaluate the impact of officer activity on police legitimacy and community trust. FPD should:
a. Develop and implement a plan for broader collection of stop, search, ticketing, and arrest data that includes pedestrian stops, enhances vehicle stop data collection, and requires collection of data on all stop and post-stop activity, as well as location and demographic information;
b. Require supervisors to review all officer activity and review all officer reports before the supervisor leaves shift;
c. Develop and implement system for regular review of stop, search, ticketing, and arrest data at supervisory and agency level to detect problematic trends and ensure consistency with public safety and community policing goals;
d. Analyze race and other disparities shown in stop, search, ticketing, and arrest practices to determine whether disparities can be reduced consistent with public safety goals.
4. Change Force Use, Reporting, Review, and Response to Encourage De-Escalation and the Use of the Minimal Force Necessary in a Situation
FPD should reorient officers’ approach to using force by ensuring that they are trained and skilled in using tools and tactics to de-escalate situations, and incentivized to avoid using force wherever possible. FPD also should implement a system of force review that ensures that improper force is detected and responded to effectively, and that policy, training, tactics, and officer safety concerns are identified. FPD should:
a. Train and require officers to use de-escalation techniques wherever possible both to avoid a situation escalating to where force becomes necessary, and to avoid unnecessary force even where it would be legally justified. Training should include tactics for slowing down a situation to increase available options;
b. Require onsite supervisory approval before deploying any canine, absent documented exigent circumstances; require and train canine officers to take into account the nature and severity of the alleged crime when deciding whether to deploy a canine to bite; require and train canine officers to avoid sending a canine to apprehend by biting a concealed suspect when the objective facts do not suggest the suspect is armed and a lower level of force reasonably can be expected to secure the suspect;
c. Place more stringent limits on use of ECWs, including limitations on multiple ECW cycles and detailed justification for using more than one cycle;
d. Retrain officers in use of ECWs to ensure they view and use ECWs as a tool of necessity, not convenience. Training should be consistent with principles set out in the 2011 ECW Guidelines;
e. Develop and implement use-of-force reporting that requires the officer using force to complete a narrative, separate from the offense report, describing the force used with particularity, and describing with specificity the circumstances that required the level of force used, including the reason for the initial stop or other enforcement action. Some levels of force should require all officers observing the use of force to complete a separate force narrative;
f. Develop and implement supervisory review of force that requires the supervisor to conduct a complete review of each use of force, including gathering and considering
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evidence necessary to understand the circumstances of the force incident and determine its consistency with law and policy, including statements from individuals against whom force is used and civilian witnesses; g. Prohibit supervisors from reviewing or investigating a use of force in which they participated or directed; h. Ensure that complete use-of-force reporting and review/investigation files—including all offense reports, witness statements, and medical, audio/video, and other evidence—are kept together in a centralized location; i. Develop and implement a system for higher-level, inter-disciplinary review of some types of force, such as lethal force, canine deployment, ECWs, and force resulting in any injury; j. Improve collection, review, and response to use-of-force data, including information regarding ECW and canine use; k. Implement system of zero tolerance for use of force as punishment or retaliation rather than as necessary, proportionate response to counter a threat; l. Discipline officers who fail to report force and supervisors who fail to conduct adequate force investigations; m. Identify race and other disparities in officer use of force and develop strategies to eliminate avoidable disparities; n. Staff jail with at least two correctional officers at all times to ensure safety and minimize need for use of force in dealing with intoxicated or combative prisoners. Train correctional officers in de-escalation techniques with specific instruction and training on minimizing force when dealing with intoxicated and combative prisoners, as well as with passive resistance and noncompliance.
5. Implement Policies and Training to Improve Interactions with Vulnerable People
Providing officers with the tools and training to better respond to persons in physical or mental health crisis, and to those with intellectual disabilities, will help avoid unnecessary injuries, increase community trust, and make officers safer. FPD should:
a. Develop and implement policy and training for identifying and responding to individuals with known or suspected mental health conditions, including those observably in mental health crisis, and those with intellectual or other disabilities;
b. Provide enhanced crisis intervention training to a subset of officers to allow for ready availability of trained officers on the scenes of critical incidents involving individuals with mentally illness;
c. Require that, wherever possible, at least one officer with enhanced crisis intervention training respond to any situation concerning individuals in mental health crisis or with intellectual disability, when force might be used;
d. Provide training to officers regarding how to identify and respond to more commonly occurring medical emergencies that may at first appear to reflect a failure to comply with lawful orders. Such medical emergencies may include, for example, seizures and diabetic emergencies.
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6. Change Response to Students to Avoid Criminalizing Youth While Maintaining a Learning Environment
FPD has the opportunity to profoundly impact students through its SRO program. This program can be used as a way to build positive relationships with youth from a young age and to support strategies to keep students in school and learning. FPD should:
a. Work with school administrators, teachers, parents, and students to develop and implement policy and training consistent with law and best practices to more effectively address disciplinary issues in schools. This approach should be focused on SROs developing positive relationships with youth in support of maintaining a learning environment without unnecessarily treating disciplinary issues as criminal matters or resulting in the routine imposition of lengthy suspensions;
b. Provide initial and regularly recurring training to SROs, including training in mental health, counseling, and the development of the teenage brain;
c. Evaluate SRO performance on student engagement and prevention of disturbances, rather than on student arrests or removals;
d. Regularly review and evaluate incidents in which SROs are involved to ensure they meet the particular goals of the SRO program; to identify any disparate impact or treatment by race or other protected basis; and to identify any policy, training, or equipment concerns.
7. Implement Measures to Reduce Bias and Its Impact on Police Behavior
Many of the recommendations listed elsewhere have the potential to reduce the level and impact of bias on police behavior (e.g., increasing positive interactions between police and the community; increasing the collection and analysis of stop data; and increasing oversight of the exercise of police discretion). Below are additional measures that can assist in this effort. FPD should:
a. Provide initial and recurring training to all officers that sends a clear, consistent and emphatic message that bias-based profiling and other forms of discriminatory policing are prohibited. Training should include: 1) Relevant legal and ethical standards; 2) Information on how stereotypes and implicit bias can infect police work; 3) The importance of procedural justice and police legitimacy on community trust, police effectiveness, and officer safety; 4) The negative impacts of profiling on public safety and crime prevention;
b. Provide training to supervisors and commanders on detecting and responding to biasbased profiling and other forms of discriminatory policing;
c. Include community members from groups that have expressed high levels of distrust of police in officer training;
d. Take steps to eliminate all forms of workplace bias from FPD and the City.
8. Improve and Increase Training Generally
FPD officers receive far too little training as recruits and after becoming officers. Officers need a better knowledge of what law, policy, and integrity require, and concrete training on how to
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carry out their police responsibilities. In addition to the training specified elsewhere in these recommendations, FPD should:
a. Significantly increase the quality and amount of all types of officer training, including recruit, field training (including for officers hired from other agencies), and in-service training;
b. Require that training cover, in depth, constitutional and other legal restrictions on officer action, as well as additional factors officers should consider before taking enforcement action (such as police legitimacy and procedural justice considerations);
c. Employ scenario-based and adult-learning methods.
9. Increase Civilian Involvement in Police Decision Making
In addition to engaging with all segments of Ferguson as part of implementing community policing, FPD should develop and implement a system that incorporates civilian input into all aspects of policing, including policy development, training, use-of-force review, and investigation of misconduct complaints.
10. Improve Officer Supervision
The recommendations set out here cannot be implemented without dedicated, skilled, and welltrained supervisors who police lawfully and without bias. FPD should:
a. Provide all supervisors with specific supervisory training prior to assigning them to supervisory positions;
b. Develop and require supervisors to use an “early intervention system” to objectively detect problematic patterns of officer misconduct, assist officers who need additional attention, and identify training and equipment needs;
c. Support supervisors who encourage and guide respectful policing and implement community policing principles, and evaluate them on this basis. Remove supervisors who do not adequately review officer activity and reports or fail to support, through words or actions, unbiased policing;
d. Ensure that an adequate number of qualified first-line supervisors are deployed in the field to allow supervisors to provide close and effective supervision to each officer under the supervisor’s direct command, provide officers with the direction and guidance necessary to improve and develop as officers, and to identify, correct, and prevent misconduct.
11. Recruiting, Hiring, and Promotion
There are widespread concerns about the lack of diversity, especially race and gender diversity, among FPD officers. FPD should modify its systems for recruiting hiring and promotion to:
a. Ensure that the department’s officer hiring and selection processes include an objective process for selection that employs reliable and valid selection devices that comport with best practices and federal anti-discrimination laws;
b. In the case of lateral hires, scrutinize prior training and qualification records as well as complaint and disciplinary history;
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c. Implement validated pre-employment screening mechanisms to ensure temperamental and skill-set suitability for policing.
12. Develop Mechanisms to More Effectively Respond to Allegations of Officer Misconduct
Responding to allegations of officer misconduct is critical not only to correct officer behavior and identify policy, training, or tactical concerns, but also to build community confidence and police legitimacy. FPD should:
a. Modify procedures and practices for accepting complaints to make it easier and less intimidating for individuals to register formal complaints about police conduct, including providing complaint forms online and in various locations throughout the City and allowing for complaints to be submitted online and by third parties or anonymously;
b. Require that all complaints be logged and investigated; c. Develop and implement a consistent, reliable, and fair process for investigating and
responding to complaints of officer misconduct. As part of this process, FPD should: 1) Investigate all misconduct complaints, even where the complainant indicates he or she does not want the complaint investigated, or wishes to remain anonymous; 2) Not withdraw complaints without reaching a disposition;
d. Develop and implement a fair and consistent system for disciplining officers found to have committed misconduct;
e. Terminate officers found to have been materially untruthful in performance of their duties, including in completing reports or during internal affairs investigations;
f. Timely provide in writing to the Ferguson Prosecuting Attorney all impeachment information on officers who may testify or provide sworn reports, including findings of untruthfulness in internal affairs investigations, for disclosure to the defendant under Brady v. Maryland, 373 U.S. 83 (1963);
g. Document in a central location all misconduct complaints and investigations, including the nature of the complaint, the name of the officer, and the disposition of the investigation;
h. Maintain complete misconduct complaint investigative files in a central location; i. Develop and implement a community-centered mediation program to resolve, as
appropriate, allegations of officer misconduct.
13. Publically Share Information about the Nature and Impact of Police Activities
Transparency is a key component of good governance and community trust. Providing broad information to the public also facilitates constructive community engagement. FPD should:
a. Provide regular and specific public reports on police stop, search, arrest, ticketing, force, and community engagement activities, including particular problems and achievements, and describing the steps taken to address concerns;
b. Provide regular public reports on allegations of misconduct, including the nature of the complaint and its resolution;
c. Make available online and regularly update a complete set of police policies.
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B. Ferguson Court Practices
1. Make Municipal Court Processes More Transparent
Restoring the legitimacy of the municipal justice system requires increased transparency regarding court operations to allow the public to assess whether the court is operating in a fair manner. The municipal court should:
a. Make public—through a variety of means, including prominent display on the City, police, and municipal court web pages—all court-related fines, fees, and bond amounts, and a description of the municipal court payment process, including court dates, payment options, and potential consequences for non-payment or missed court dates;
b. Create, adopt, and make public written procedures for all court operations; c. Collect all orders currently in effect and make those orders accessible to the public,
including by posting any such materials on the City, police, and municipal court web pages. Make public all new court orders and directives as they are issued; d. Initiate a public education campaign to ensure individuals can have an accurate and complete understanding of how Ferguson’s municipal court operates, including that appearance in court without ability to pay an owed fine will not result in arrest; e. Provide broadly available information to individuals regarding low-cost or cost-free legal assistance; f. Enhance public reporting by ensuring data provided to the Missouri Courts Administrator is accurate, and by making that and additional data available on City and court websites, including monthly reports indicating:
1) The number of warrants issued and currently outstanding; 2) The number of cases heard during the previous month; 3) The amount of fines imposed and collected, broken down by offense,
including by race; 4) Data regarding the number of Missouri Department of Revenue license
suspensions initiated by the court and the number of compliance letters enabling license reinstatement issued by the court. g. Revise the municipal court website to enable these recommendations to be fully implemented.
2. Provide Complete and Accurate Information to a Person Charged with a Municipal Violation
In addition to making its processes more transparent to the public, the court should ensure that those with cases pending before the court are provided with adequate and reliable information about their case. The municipal court, in collaboration with the Patrol Division, should:
a. Ensure all FPD citations, summonses, and arrests are accompanied by sufficient, detailed information about the recipient’s rights and responsibilities, including: 1) The specific municipal violation charged; 2) A person’s options for addressing the charge, including whether in-person appearance is required or if alternative methods, including online payment, are available, and information regarding all pending deadlines;
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3) A person’s right to challenge the charge in court; 4) The exact date and time of the court session at which the person receiving the
charge must or may appear; 5) Information about how to seek a continuance for a court date; 6) The specific fine imposed, if the offense has a preset fine; 7) The processes available to seek a fine reduction for financial incapacity,
consistent with recommendation four set forth below; 8) The penalties for failing to meet court requirements. b. Develop and implement a secure online system for individuals to be able to access specific details about their case, including fines owed, payments made, and pending requirements and deadlines.
3. Change Court Procedures for Tracking and Resolving Municipal Charges to Simplify Court Processes and Expand Available Payment Options
The municipal court should: a. Strictly limit those offenses requiring in-person court appearance for resolution to those for which state law requires the defendant to make an initial appearance in court; b. Establish a process by which a person may seek a continuance of a court date, whether or not represented by counsel; c. Continue to implement its online payment system, and expand it to allow late payments, payment plan installments, bond payments, and other court payments to be made online; d. Continue to develop and transition to an electronic records management system for court records to ensure all case information and events are tracked and accessible to court officials and FPD staff, as appropriate. Ensure electronic records management system has appropriate controls to limit user access and ability to alter case records; e. Ensure that the municipal court office is consistently staffed during posted business hours to allow those appearing at the court window of the police department seeking to resolve municipal charges to do so; f. Accept partial payments from individuals, and provide clear information to individuals about payment plan options.
4. Review Preset Fine Amounts and Implement System for Fine Reduction
The municipal court should: a. Immediately undertake a review of current fine amounts and ensure that they are consistent not only with regional but also statewide fine averages, are not overly punitive, and take into account the income of Ferguson residents; b. Develop and implement a process by which individuals can appear in court to seek proportioning of preset fines to their financial ability to pay.
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5. Develop Effective Ability-to-Pay Assessment System and Improve Data Collection Regarding Imposed Fines
The municipal court should: a. Develop and implement consistent written criteria for conducting an assessment of an individual’s ability to pay prior to the assessment of any fine, and upon any increase in the fine or related court costs and fees. The ability-to-pay assessment should include not only a consideration of the financial resources of an individual, but also a consideration of any documented fines owed to other municipal courts; b. Improve current procedures for collecting and tracking data regarding fine amounts imposed. Track initial fines imposed as an independent figure separate from any additional charges imposed during a case; c. Regularly conduct internal reviews of data regarding fine assessments. This review should include an analysis of fines imposed for the same offenses, including by race of the defendant, to ensure fine assessments for like offenses are set appropriately.
6. Revise Payment Plan Procedures and Provide Alternatives to Fine Payments for Resolving Municipal Charges
The municipal court should: a. Develop and implement a specific process by which a person can enroll in a payment plan that requires reasonable periodic payments. That process should include an assessment of a person’s ability to pay to determine an appropriate periodic payment amount, although a required payment shall not exceed $100. That process should also include a means for a person to seek a reduction in their monthly payment obligation in the event of a change in their financial circumstances; b. Provide more opportunities for a person to seek leave to pay a lower amount in a given month beyond the court’s current practice of requiring appearance the first Wednesday of the month at 11:00 a.m. Adopt procedures allowing individuals to seek their first request for a one-time reduction outside of court, and to have such requests be automatically granted. Such procedures should provide that subsequent requests shall be granted liberally by the Municipal Judge, and denials of requests for extensions or reduced monthly payments shall be accompanied by a written explanation of why the request was denied; c. Cease practice of automatically issuing a warrant when a person on a payment plan misses a payment, and adopt procedures that provide for appropriate warnings following a missed payment, consistent with recommendation eight set forth below; d. Work with community organizations and other regional groups to develop alternative penalty options besides fines, including expanding community service options. Make all individuals eligible for community service.
7. Reform Trial Procedures to Ensure Full Compliance with Due Process Requirements
The municipal court should take all necessary steps to ensure that the court’s trial procedures fully comport with due process such that defendants are provided with a fair and impartial forum to challenge the charges brought against them. As part of this effort, the court shall ensure that
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defendants taking their case to trial are provided with all evidence relevant to guilt determinations consistent with the requirements of Brady v. Maryland, 373 U.S. 83 (1963), and other applicable law.
8. Stop Using Arrest Warrants as a Means of Collecting Owed Fines and Fees
As Ferguson’s own Municipal Judge has recognized, municipal code violations should result in jail in only the rarest of circumstances. To begin to address these problems, Ferguson should only jail individuals for a failure to appear on or pay a municipal code violation penalty, if at all, if the following steps have been attempted in a particular case and have failed:
a. Enforcement of fines through alternative means, including: 1) Assessment of reasonable late fees; 2) Expanding options for payment through community service; 3) Modified payment plans with reasonable amounts due and payment procedures; 4) A show cause hearing on why a warrant should not issue, including an assessment of ability to pay, where requested. At this hearing the individual has a right to counsel and, if the individual is indigent, the court will assign counsel to represent the individual. See Mo. Sup. Ct. R. 37.65; Mo. Mun. Benchbook, Cir. Ct., Mun. Divs. § 13.8;
b. Personal service on the individual of the Order to Show Cause Motion that provides notice of the above information regarding right to counsel and the consequences of non-appearance; and
c. If the above mechanisms are unsuccessful at securing payment or otherwise resolving the case, the court should ensure that any arrest warrant issued has the instruction that it be executed only on days that the court is in session so that the individual can be brought immediately before the court to enable the above procedures to be implemented. See Mo. Mun. Benchbook, Cir. Ct., Mun. Divs. § 13.8 (“If a defendant fails to appear in court on the return date of the order to show cause or motion for contempt, a warrant should be issued to get the defendant before the court for the hearing.”) (emphasis added).
9. Allow Warrants to be Recalled Without the Payment of Bond
Ferguson recently extended its warrant recall program, also called an “amnesty” program, which allows individuals to have municipal warrants recalled and to receive a new court date without paying a bond. This program should be made permanent. The municipal court should:
a. Allow all individuals to seek warrant recall in writing or via telephone, whether represented by an attorney or not;
b. Provide information to a participating individual at the time of the warrant recall, including the number of charges pending, the fine amount due if a charge has been assessed, the options available to pay assessed fines, the deadlines for doing so, and the requirements, if any, for appearing in court.
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10. Modify Bond Amounts and Bond and Detention Procedures
Ferguson has two separate municipal code bond schedules and processes: one for warrantless arrests, and another for arrests pursuant to warrants issued by the municipal court. Ferguson’s municipal court recently limited the number of municipal code violations for which officers can jail an individual without a warrant, and reduced the amount of time the jail may hold a defendant who is unable to post bond from 72 to 12 hours. These changes are a positive start, but further reforms are necessary. The City and municipal court should:
a. Limit the amount of time the jail may hold a defendant unable to post bond on all arrests for municipal code violations or municipal arrest warrants to 12 hours;
b. Establish procedures for setting bond amounts for warrantless and warrant-based detainees that are consistent with the Equal Protection Clause’s prohibition on incarcerating individuals on the basis of indigency, and that ensure bond shall in no case exceed $100 for a person arrested pursuant to a municipal warrant, regardless of the number of pending charges;
c. At the time of bond payment, provide individuals with the option of applying a bond fee to underlying fines and costs, including in the event of forfeiture;
d. Take steps necessary, including the continued development of a computerized court records management system as discussed above, to enable court staff, FPD officers, and FPD correctional officers to access case information so that a person has the option of paying the full underlying fine owed in lieu of bond upon being arrested;
e. Increase options for making a bond payment, including allowing bond payment by credit card and through the online payment system, whether by a person in jail or outside of the jail;
f. Institute closer oversight and tracking of bond payment acceptance by FPD officers and FPD correctional officers;
g. Initiate practice of issuing bond refund checks immediately upon a defendant paying their fine in full and being owed a bond refund;
h. Ensure that all court staff, FPD officers, and FPD correctional officers understand Ferguson’s bond rules and procedures.
11. Consistently Provide “Compliance Letters” Necessary for Driver’s License Reinstatement After a Person Makes an Appearance Following a License Suspension
Per official policy, the municipal court provides people who have had their licenses suspended pursuant to Mo. Rev. Stat. § 302.341.1 with compliance letters enabling the suspension to be lifted only once the underlying fine has been paid in full. Court staff told us, however, that in “sympathetic cases,” they provide compliance letters that enable people to have their licenses reinstated. The court should adopt and implement a policy of providing individuals with compliance letters immediately upon a person appearing in court following a license suspension pursuant to this statute.
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12. Close Cases that Remain on the Court’s Docket Solely Because of Failure to Appear Charges or Bond Forfeitures
In September 2014, the City of Ferguson repealed Ferguson Mun. Code § 13-58, which allowed the imposition of an additional “Failure to Appear” charge, fines, and fees in response to missed appearances and payments. Nonetheless, many cases remain pending on the court’s docket solely on account of charges, fines, and fees issued pursuant to this statute or because of questionable bond forfeiture practices. The City and municipal court should:
a. Close all municipal cases in which the individual has paid fines equal or greater to the amount of the fine assessed for the original municipal code violation—through Failure to Appear fines and fees or forfeited bond payments—and clear all associated warrants;
b. Remove all Failure to Appear related charges, fines, and fees from current cases, and close all cases in which only a Failure to Appear charge, fine, or fee remains pending;
c. Immediately provide compliance letters so that license suspensions are lifted for all individuals whose cases are closed pursuant to these reforms.
13. Collaborate with Other Municipalities and the State of Missouri to Implement Reforms
These recommendations should be closely evaluated and, as appropriate, implemented by other municipalities. We also recommend that the City and other municipalities work collaboratively with the state of Missouri on issues requiring statewide action, and further recommend:
a. Reform of Mo. Rev. Stat. § 302.341.1, which requires the suspension of individuals’ driving licenses in certain cases where they do not appear or timely pay traffic charges involving moving violations;
b. Increased oversight of municipal courts in St. Louis County and throughout the state of Missouri to ensure that courts operate in a manner consistent with due process, equal protection, and other requirements of the Constitution and other laws.
VI. CONCLUSION
Our investigation indicates that Ferguson as a City has the capacity to reform its approach to law enforcement. A small municipal department may offer greater potential for officers to form partnerships and have frequent, positive interactions with Ferguson residents, repairing and maintaining police-community relationships. See, e.g., Jim Burack, Putting the “Local” Back in Local Law Enforcement, in, American Policing in 2022: Essays on the Future of the Profession 79-83 (Debra R. Cohen McCullough & Deborah L. Spence, eds., 2012). These reform efforts will be well worth the considerable time and dedication they will require, as they have the potential to make Ferguson safer and more united.
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 Memorandum DEPARTMENT OF JUSTICE REPORT REGARDING THE
CRIMINAL INVESTIGATION INTO THE SHOOTING DEATH OF MICHAEL BROWN BY FERGUSON, MISSOURI POLICE
OFFICER DARREN WILSON
MARCH 4, 2015

Table of Contents
I. Introduction ............................................................................................................................. 4 II. Summary of the Evidence, Investigation, and Applicable Law .............................................. 5
A. Summary of the Evidence.................................................................................................... 5 B. Initial Law Enforcement Investigation ................................................................................ 8 C. Legal Summary .................................................................................................................... 9
1. The Law Governing Uses of Deadly Force by a Law Enforcement Officer ................ 9 i. The Shootings Were Not Objectively Unreasonable Uses of Force Under 18 U.S.C. § 242 ............................................................................................................... 10 ii.Wilson Did Not Willfully Violate Brown’s Constitutional Right to Be Free from Unreasonable Force ........................................................................................... 11
III. Summary of the Evidence .................................................................................................. 12 A. Darren Wilson’s Account .................................................................................................. 12 B. Physical and Forensic Evidence......................................................................................... 16 1. Crime Scene................................................................................................................ 16 2. Autopsy Findings........................................................................................................ 17 3. DNA Analysis............................................................................................................. 20 4. Dispatch Recordings................................................................................................... 21 5. Ballistics ..................................................................................................................... 23 i.Wilson’s Firearm and Projectiles Fired .................................................................... 23 ii.Projectile Recovered from SUV.............................................................................. 23 iii.Gunshot Residue on Brown’s Shirt ........................................................................ 23 6. Fingerprints................................................................................................................. 24 7. Audio Recording of Shots Fired................................................................................. 24 8. Wilson’s Medical Records.......................................................................................... 25 9. Brown’s Toxicology ................................................................................................... 25 10. Ferguson Market Surveillance Video ......................................................................... 25 C. Witness Accounts............................................................................................................... 26 1. Witnesses Materially Consistent with Prior Statements, Physical Evidence, and Other Witnesses and Therefore, Give Credible Accounts ................................... 27
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i. Witnesses Materially Consistent with Prior Statements, Physical Evidence, and Other Witnesses Who Corroborate That Wilson Acted in Self-Defense............. 27 ii. Witnesses Consistent with Prior Statements, Physical Evidence, and Other Witnesses Who Inculpate Wilson............................................................................... 36 2. Witnesses Who Neither Inculpate Nor Fully Corroborate Wilson............................. 36 3. Witnesses Whose Accounts Do Not Support a Prosecution Due to Materially Inconsistent Prior Statements, or Inconsistencies With the Physical and Forensic Evidence....................................................................................................... 44 IV. Legal Analysis ................................................................................................................... 78 A. Legal Standard ................................................................................................................... 79 B. Uses of Force ..................................................................................................................... 79 1. Shooting at the SUV ................................................................................................... 80 2. Wilson’s Subsequent Pursuit of Brown and Shots Allegedly Fired as Brown was Moving Away .................................................................................................... 81 3. Shots Fired After Brown Turned to Face Wilson ...................................................... 82 C. Willfulness ......................................................................................................................... 85 VI. Conclusion ......................................................................................................................... 86
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I. Introduction
At approximately noon on Saturday, August 9, 2014, Officer Darren Wilson of the Ferguson Police Department (“FPD”) shot and killed Michael Brown, an unarmed 18-year-old. The Criminal Section of the Department of Justice Civil Rights Division, the United States Attorney’s Office for the Eastern District of Missouri, and the Federal Bureau of Investigation (“FBI”) (collectively, “The Department”) subsequently opened a criminal investigation into whether the shooting violated federal law. The Department has determined that the evidence does not support charging a violation of federal law. This memorandum details the Department’s investigation, findings, and conclusions. Part I provides an introduction and overview. Part II summarizes the federal investigation and the evidence uncovered during the course of the investigation, and discusses the applicable federal criminal civil rights law and standards of federal prosecution. Part III provides a more in-depth summary of the evidence. Finally, Part IV provides a detailed legal analysis of the evidence and explains why the evidence does not support an indictment of Darren Wilson.
The Department conducted an extensive investigation into the shooting of Michael Brown. Federal authorities reviewed physical, ballistic, forensic, and crime scene evidence; medical reports and autopsy reports, including an independent autopsy performed by the United States Department of Defense Armed Forces Medical Examiner Service (“AFMES”); Wilson’s personnel records; audio and video recordings; and internet postings. FBI agents, St. Louis County Police Department (“SLCPD”) detectives, and federal prosecutors and prosecutors from the St. Louis County Prosecutor’s Office (“county prosecutors”) worked cooperatively to both independently and jointly interview more than 100 purported eyewitnesses and other individuals claiming to have relevant information. SLCPD detectives conducted an initial canvass of the area on the day of the shooting. FBI agents then independently canvassed more than 300 residences to locate and interview additional witnesses. Federal and local authorities collected cellular phone data, searched social media sites, and tracked down dozens of leads from community members and dedicated law enforcement email addresses and tip lines in an effort to investigate every possible source of information.
The principles of federal prosecution, set forth in the United States Attorneys’ Manual (“USAM”), require federal prosecutors to meet two standards in order to seek an indictment. First, we must be convinced that the potential defendant committed a federal crime. See USAM § 9-27.220 (a federal prosecution should be commenced only when an attorney for the government “believes that the person’s conduct constitutes a federal offense”). Second, we must also conclude that we would be likely to prevail at trial, where we must prove the charges beyond a reasonable doubt. See USAM § 9-27.220 (a federal prosecution should be commenced only when “the admissible evidence will probably be sufficient to sustain a conviction”); Fed R. Crim P. 29(a)(prosecution must present evidence sufficient to sustain a conviction). Taken
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together, these standards require the Department to be convinced both that a federal crime occurred and that it can be proven beyond a reasonable doubt at trial.1
In order to make the proper assessment under these standards, federal prosecutors evaluated physical, forensic, and potential testimonial evidence in the form of witness accounts. As detailed below, the physical and forensic evidence provided federal prosecutors with a benchmark against which to measure the credibility of each witness account, including that of Darren Wilson. We compared individual witness accounts to the physical and forensic evidence, to other credible witness accounts, and to each witness’s own prior statements made throughout the investigations, including the proceedings before the St. Louis County grand jury (“county grand jury”). We worked with federal and local law enforcement officers to interview witnesses, to include re-interviewing certain witnesses in an effort to evaluate inconsistencies in their accounts and to obtain more detailed information. In so doing, we assessed the witnesses’ demeanor, tone, bias, and ability to accurately perceive or recall the events of August 9, 2014. We credited and determined that a jury would appropriately credit those witnesses whose accounts were consistent with the physical evidence and consistent with other credible witness accounts. In the case of witnesses who made multiple statements, we compared those statements to determine whether they were materially consistent with each other and considered the timing and circumstances under which the witnesses gave the statements. We did not credit and determined that a jury appropriately would not credit those witness accounts that were contrary to the physical and forensic evidence, significantly inconsistent with other credible witness accounts, or significantly inconsistent with that witness’s own prior statements.
Based on this investigation, the Department has concluded that Darren Wilson’s actions do not constitute prosecutable violations under the applicable federal criminal civil rights statute, 18 U.S.C. § 242, which prohibits uses of deadly force that are “objectively unreasonable,” as defined by the United States Supreme Court. The evidence, when viewed as a whole, does not support the conclusion that Wilson’s uses of deadly force were “objectively unreasonable” under the Supreme Court’s definition. Accordingly, under the governing federal law and relevant standards set forth in the USAM, it is not appropriate to present this matter to a federal grand jury for indictment, and it should therefore be closed without prosecution.
II. Summary of the Evidence, Investigation, and Applicable Law
A. Summary of the Evidence
Within two minutes of Wilson’s initial encounter with Brown on August 9, 2014, FPD officers responded to the scene of the shooting, and subsequently turned the matter over to the SLCPD for investigation. SLCPD detectives immediately began securing and processing the scene and conducting initial witness interviews. The FBI opened a federal criminal civil rights investigation on August 11, 2014. Thereafter, federal and county authorities conducted cooperative, yet independent investigations into the shooting of Michael Brown.
1 The threshold determination that a case meets the standard for indictment rests with the prosecutor, Wayte v. United States, 470 U.S. 598, 607 (1985), and is “one of the most considered decisions a federal prosecutor makes.” USAM 9-27.200, Annotation.
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The encounter between Wilson and Brown took place over an approximately two-minute period of time at about noon on August 9, 2014. Wilson was on duty and driving his department-issued Chevy Tahoe SUV westbound on Canfield Drive in Ferguson, Missouri when he saw Brown and his friend, Witness 101,2 walking eastbound in the middle of the street. Brown and Witness 101 had just come from Ferguson Market and Liquor (“Ferguson Market”), a nearby convenience store, where, at approximately 11:53 a.m., Brown stole several packages of cigarillos. As captured on the store’s surveillance video, when the store clerk tried to stop Brown, Brown used his physical size to stand over him and forcefully shove him away. As a result, an FPD dispatch call went out over the police radio for a “stealing in progress.” The dispatch recordings and Wilson’s radio transmissions establish that Wilson was aware of the theft and had a description of the suspects as he encountered Brown and Witness 101.
As Wilson drove toward Brown and Witness 101, he told the two men to walk on the sidewalk. According to Wilson’s statement to prosecutors and investigators, he suspected that Brown and Witness 101 were involved in the incident at Ferguson Market based on the descriptions he heard on the radio and the cigarillos in Brown’s hands. Wilson then called for backup, stating, “Put me on Canfield with two and send me another car.” Wilson backed up his SUV and parked at an angle, blocking most of both lanes of traffic, and stopping Brown and Witness 101 from walking any further. Wilson attempted to open the driver’s door of the SUV to exit his vehicle, but as he swung it open, the door came into contact with Brown’s body and either rebounded closed or Brown pushed it closed.
Wilson and other witnesses stated that Brown then reached into the SUV through the open driver’s window and punched and grabbed Wilson. This is corroborated by bruising on Wilson’s jaw and scratches on his neck, the presence of Brown’s DNA on Wilson’s collar, shirt, and pants, and Wilson’s DNA on Brown’s palm. While there are other individuals who stated that Wilson reached out of the SUV and grabbed Brown by the neck, prosecutors could not credit their accounts because they were inconsistent with physical and forensic evidence, as detailed throughout this report.
Wilson told prosecutors and investigators that he responded to Brown reaching into the SUV and punching him by withdrawing his gun because he could not access less lethal weapons while seated inside the SUV. Brown then grabbed the weapon and struggled with Wilson to gain control of it. Wilson fired, striking Brown in the hand. Autopsy results and bullet trajectory, skin from Brown’s palm on the outside of the SUV door as well as Brown’s DNA on the inside of the driver’s door corroborate Wilson’s account that during the struggle, Brown used his right hand to grab and attempt to control Wilson’s gun. According to three autopsies, Brown sustained a close range gunshot wound to the fleshy portion of his right hand at the base of his right thumb. Soot from the muzzle of the gun found embedded in the tissue of this wound coupled with indicia of thermal change from the heat of the muzzle indicate that Brown’s hand was within inches of the muzzle of Wilson’s gun when it was fired. The location of the recovered bullet in the side panel of the driver’s door, just above Wilson’s lap, also corroborates Wilson’s account of the struggle over the gun and when the gun was fired, as do witness accounts that Wilson fired at least one shot from inside the SUV.
2 With the exception of Darren Wilson and Michael Brown, the names of individuals have been redacted as a safeguard against an invasion of their personal privacy.
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Although no eyewitnesses directly corroborate Wilson’s account of Brown’s attempt to gain control of the gun, there is no credible evidence to disprove Wilson’s account of what occurred inside the SUV. Some witnesses claim that Brown’s arms were never inside the SUV. However, as discussed later in this report, those witness accounts could not be relied upon in a prosecution because credible witness accounts and physical and forensic evidence, i.e. Brown’s DNA inside the SUV and on Wilson’s shirt collar and the bullet trajectory and close-range gunshot wound to Brown’s hand, establish that Brown’s arms and/or torso were inside the SUV.
After the initial shooting inside the SUV, the evidence establishes that Brown ran eastbound on Canfield Drive and Wilson chased after him. The autopsy results confirm that Wilson did not shoot Brown in the back as he was running away because there were no entrance wounds to Brown’s back. The autopsy results alone do not indicate the direction Brown was facing when he received two wounds to his right arm, given the mobility of the arm. However, as detailed later in this report, there are no witness accounts that could be relied upon in a prosecution to prove that Wilson shot at Brown as he was running away. Witnesses who say so cannot be relied upon in a prosecution because they have given accounts that are inconsistent with the physical and forensic evidence or are significantly inconsistent with their own prior statements made throughout the investigation.
Brown ran at least 180 feet away from the SUV, as verified by the location of bloodstains on the roadway, which DNA analysis confirms was Brown’s blood. Brown then turned around and came back toward Wilson, falling to his death approximately 21.6 feet west of the blood in the roadway. Those witness accounts stating that Brown never moved back toward Wilson could not be relied upon in a prosecution because their accounts cannot be reconciled with the DNA bloodstain evidence and other credible witness accounts.
As detailed throughout this report, several witnesses stated that Brown appeared to pose a physical threat to Wilson as he moved toward Wilson. According to these witnesses, who are corroborated by blood evidence in the roadway, as Brown continued to move toward Wilson, Wilson fired at Brown in what appeared to be self-defense and stopped firing once Brown fell to the ground. Wilson stated that he feared Brown would again assault him because of Brown’s conduct at the SUV and because as Brown moved toward him, Wilson saw Brown reach his right hand under his t-shirt into what appeared to be his waistband. There is no evidence upon which prosecutors can rely to disprove Wilson’s stated subjective belief that he feared for his safety.
Ballistics analysis indicates that Wilson fired a total of 12 shots, two from the SUV and ten on the roadway. Witness accounts and an audio recording indicate that when Wilson and Brown were on the roadway, Wilson fired three gunshot volleys, pausing in between each one. According to the autopsy results, Wilson shot and hit Brown as few as six or as many as eight times, including the gunshot to Brown’s hand. Brown fell to the ground dead as a result of a gunshot to the apex of his head. With the exception of the first shot to Brown’s hand, all of the shots that struck Brown were fired from a distance of more than two feet. As documented by crime scene photographs, Brown fell to the ground with his left, uninjured hand balled up by his waistband, and his right, injured hand palm up by his side. Witness accounts and cellular phone video prove that Wilson did not touch Brown’s body after he fired the final shot and Brown fell to the ground.
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Although there are several individuals who have stated that Brown held his hands up in an unambiguous sign of surrender prior to Wilson shooting him dead, their accounts do not support a prosecution of Wilson. As detailed throughout this report, some of those accounts are inaccurate because they are inconsistent with the physical and forensic evidence; some of those accounts are materially inconsistent with that witness’s own prior statements with no explanation, credible for otherwise, as to why those accounts changed over time. Certain other witnesses who originally stated Brown had his hands up in surrender recanted their original accounts, admitting that they did not witness the shooting or parts of it, despite what they initially reported either to federal or local law enforcement or to the media. Prosecutors did not rely on those accounts when making a prosecutive decision.
While credible witnesses gave varying accounts of exactly what Brown was doing with his hands as he moved toward Wilson – i.e., balling them, holding them out, or pulling up his pants up – and varying accounts of how he was moving – i.e., “charging,” moving in “slow motion,” or “running” – they all establish that Brown was moving toward Wilson when Wilson shot him. Although some witnesses state that Brown held his hands up at shoulder level with his palms facing outward for a brief moment, these same witnesses describe Brown then dropping his hands and “charging” at Wilson.
B. Initial Law Enforcement Investigation
Wilson shot Brown at about 12:02 p.m. on August 9, 2014. Within minutes, FPD officers responded to the scene, as they were already en route from Wilson’s initial radio call for assistance. Also within minutes, residents began pouring onto the street. At 12:08 p.m., FPD officers requested assistance from nearby SLCPD precincts. By 12:14 p.m., some members of the growing crowd became increasingly hostile in response to chants of “[We] need to kill these motherfuckers,” referring to the police officers on scene. At around the same time, about 12:15 p.m., Witness 147, an FPD sergeant, informed the FPD Chief that there had been a fatal officerinvolved shooting. At about 12:23 p.m., after speaking with one of his captains, the FPD Chief contacted the SLCPD Chief and turned over the homicide investigation to the SLCPD. Within twenty minutes of Brown’s death, paramedics covered Brown’s body with several white sheets.
The SLCPD Division of Criminal Investigation, Bureau of Crimes Against Persons (“CAP”) was notified at 12:43 p.m. to report to the crime scene to begin a homicide investigation. When they received notification, SLCPD CAP detectives were investigating an armed, masked hostage situation in the hospice wing at St. Anthony’s Medical Center in the south part of St. Louis County, nearly 37 minutes from Canfield Drive. They arrived at Canfield Drive at approximately 1:30 p.m. During that time frame, between about 12:45 p.m. and 1:17 p.m., SLCPD reported gunfire in the area, putting both civilians and officers in danger. As a result, canine officers and additional patrol officers responded to assist with crowd control. SLCPD expanded the perimeter of the crime scene to move the crowd away from Brown’s body in an effort to preserve the crime scene for processing.
Upon their arrival, SLCPD detectives from the Bureau of Criminal Identification Crime Scene Unit erected orange privacy screens around Brown’s body, and CAP detectives alerted the
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St. Louis County Medical Examiner (“SCLME”) to respond to the scene. To further protect the integrity of the crime scene, and in accordance with common police practice, SLCPD personnel did not permit family members and concerned neighbors into the crime scene (with one brief exception). Also in accordance with common police practice, crime scene detectives processed the crime scene with Brown’s body present. According to SLCPD CAP detectives, they have one opportunity to thoroughly investigate a crime scene before it is forever changed upon the removal of the decedent’s body. Processing a homicide scene with the decedent’s body present allows detectives, for example, to accurately measure distances, precisely document body position, and note injury and other markings relative to other aspects of the crime scene that photographs may not capture.
In this case, crime scene detectives had to stop processing the scene as a result of two more reports of what sounded like automatic weapons gunfire in the area at 1:55 p.m. and 2:11 p.m., as well as some individuals in the crowd encroaching on the crime scene and chanting, “Kill the Police,” as documented by cell phone video. At each of those times, having exhausted their existing resources, SLCPD personnel called emergency codes for additional patrol officers from throughout St. Louis County in increments of twenty-five. Livery drivers sent to transport Brown’s body upon completion of processing arrived at 2:20 p.m. Their customary practice is to wait on scene until the body is ready for transport. However, an SLCPD sergeant briefly stopped them from getting out of their vehicle until the gunfire abated and it was safe for them to do so. The SLCME medicolegal investigator arrived at 2:30 p.m. and began conducting his investigation when it was reasonably safe to do so. Detectives were at the crime scene for approximately five and a half hours, and throughout that time, SLCPD personnel continued to seek additional assistance, calling in the Highway Safety Unit at 2:38 p.m. and the Tactical Operations Unit at 2:44 p.m. Witnesses and detectives described the scene as volatile, causing concern for both their personal safety and the integrity of the crime scene. Crime scene detectives and the SLCME medicolegal investigator completed the processing of Brown’s body at approximately 4:00 p.m, at which time Brown’s body was transported to the Office of the SLCME.
C. Legal Summary
1. The Law Governing Uses of Deadly Force by a Law Enforcement Officer
The federal criminal statute that enforces Constitutional limits on uses of force by law enforcement officers is 18 U.S.C. § 242, which provides in relevant part, as follows:
Whoever, under color of any law, . . . willfully subjects any person . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States [shall be guilty of a crime].
To prove a violation of Section 242, the government must prove the following elements beyond a reasonable doubt: (1) that the defendant was acting under color of law, (2) that he deprived a victim of a right protected by the Constitution or laws of the United States, (3) that he acted willfully, and (4) that the deprivation resulted in bodily injury and/or death. There is no dispute that Wilson, who was on duty and working as a patrol officer for the FPD, acted under
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color of law when he shot Brown, or that the shots resulted in Brown’s death. The determination of whether criminal prosecution is appropriate rests on whether there is sufficient evidence to establish that any of the shots fired by Wilson were unreasonable, as defined under federal law, given the facts known to Wilson at the time, and if so, whether Wilson fired the shots with the requisite “willful” criminal intent.
i. The Shootings Were Not Objectively Unreasonable Uses of Force Under 18 U.S.C. § 242
In this case, the Constitutional right at issue is the Fourth Amendment’s prohibition against unreasonable seizures, which encompasses the right of an arrestee to be free from “objectively unreasonable” force. Graham v. Connor, 490 U.S. 386, 396-97 (1989). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. “Careful attention” must be paid “to the facts and circumstances of each particular case, including 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. Allowance must be made for the fact that law enforcement officials are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving. Id. at 396-97.
The use of deadly force is justified when the officer has “probable cause to believe that the suspect pose[s] a threat of serious physical harm, either to the officer or to others.” Tennessee v. Garner, 471 U.S. 1, 11 (1985); see Nelson v. County of Wright, 162 F.3d 986, 990 (8th Cir. 1998); O’Bert v. Vargo, 331 F.3d 29, 36 (2d Cir. 2003) (same as Garner); Deluna v. City of Rockford, 447 F.3d 1008, 1010 (7th Cir. 2006), citing Scott v. Edinburg, 346 F.3d 752, 756 (7th Cir. 2003) (deadly force can be reasonably employed where an officer believes that the suspect’s actions place him, or others in the immediate vicinity, in imminent danger of death or serious bodily injury).
As detailed throughout this report, the evidence does not establish that the shots fired by Wilson were objectively unreasonable under federal law. The physical evidence establishes that Wilson shot Brown once in the hand, at close range, while Wilson sat in his police SUV, struggling with Brown for control of Wilson’s gun. Wilson then shot Brown several more times from a distance of at least two feet after Brown ran away from Wilson and then turned and faced him. There are no witness accounts that federal prosecutors, and likewise a jury, would credit to support the conclusion that Wilson fired at Brown from behind. With the exception of the two wounds to Brown’s right arm, which indicate neither bullet trajectory nor the direction in which Brown was moving when he was struck, the medical examiners’ reports are in agreement that the entry wounds from the latter gunshots were to the front of Brown’s body, establishing that Brown was facing Wilson when these shots were fired. This includes the fatal shot to the top of Brown’s head. The physical evidence also establishes that Brown moved forward toward Wilson after he turned around to face him. The physical evidence is corroborated by multiple eyewitnesses.
Applying the well-established controlling legal authority, including binding precedent from the United States Supreme Court and Eighth Circuit Court of Appeals, the evidence does
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not establish that it was unreasonable for Wilson to perceive Brown as a threat while Brown was punching and grabbing him in the SUV and attempting to take his gun. Thereafter, when Brown started to flee, Wilson was aware that Brown had attempted to take his gun and suspected that Brown might have been part of a theft a few minutes before. Under the law, it was not unreasonable for Wilson to perceive that Brown posed a threat of serious physical harm, either to him or to others. When Brown turned around and moved toward Wilson, the applicable law and evidence do not support finding that Wilson was unreasonable in his fear that Brown would once again attempt to harm him and gain control of his gun. There are no credible witness accounts that state that Brown was clearly attempting to surrender when Wilson shot him. As detailed throughout this report, those witnesses who say so have given accounts that could not be relied upon in a prosecution because they are irreconcilable with the physical evidence, inconsistent with the credible accounts of other eyewitnesses, inconsistent with the witness’s own prior statements, or in some instances, because the witnesses have acknowledged that their initial accounts were untrue.
ii. Wilson Did Not Willfully Violate Brown’s Constitutional Right to Be Free from Unreasonable Force
Federal law requires that the government must also prove that the officer acted willfully, that is, “for the specific purpose of violating the law.” Screws v. United States, 325 U.S. 91, 101-107 (1945) (discussing willfulness element of 18 U.S.C. § 242). The Supreme Court has held that an act is done willfully if it was “committed” either “in open defiance or in reckless disregard of a constitutional requirement which has been made specific or definite.” Screws, 325 U.S. at 105. The government need not show that the defendant knew a federal statute or law protected the right with which he intended to interfere. Id. at 106-07 (“[t]he fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected”); United States v. Walsh, 194 F.3d 37, 52-53 (2d Cir. 1999) (holding that jury did not have to find defendant knew of the particular Constitutional provision at issue but that it had to find intent to invade interest protected by Constitution). However, we must prove that the defendant intended to engage in the conduct that violated the Constitution and that he did so knowing that it was a wrongful act. Id.
“[A]ll the attendant circumstances” should be considered in determining whether an act was done willfully. Screws, 325 U.S. at 107. Evidence regarding the egregiousness of the conduct, its character and duration, the weapons employed and the provocation, if any, is therefore relevant to this inquiry. Id. Willfulness may be inferred from blatantly wrongful conduct. See id. at 106; see also United States v. Reese, 2 F.3d 870, 881 (9th Cir. 1993) (“Intentionally wrongful conduct, because it contravenes a right definitely established in law, evidences a reckless disregard for that right; such reckless disregard, in turn, is the legal equivalent of willfulness.”); United States v. Dise, 763 F.2d 586, 592 (3d Cir. 1985) (holding that when defendant “invades personal liberty of another, knowing that invasion is violation of state law, [defendant] has demonstrated bad faith and reckless disregard for [federal] constitutional rights”). Mistake, fear, misperception, or even poor judgment does not constitute willful conduct prosecutable under the statute. See United States v. McClean, 528 F.2d 1250, 1255 (2d Cir. 1976) (inadvertence or mistake negates willfulness for purposes of 18 U.S.C. § 242).
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As detailed below, Wilson has stated his intent in shooting Brown was in response to a perceived deadly threat. The only possible basis for prosecuting Wilson under 18 U.S.C. § 242 would therefore be if the government could prove that his account is not true – i.e., that Brown never punched and grabbed Wilson at the SUV, never attempted to gain control of Wilson’s gun, and thereafter clearly surrendered in a way that no reasonable officer could have failed to perceive. There is no credible evidence to refute Wilson’s stated subjective belief that he was acting in self-defense. As discussed throughout this report, Wilson’s account is corroborated by physical evidence and his perception of a threat posed by Brown is corroborated by other credible eyewitness accounts. Even if Wilson was mistaken in his interpretation of Brown’s conduct, the fact that others interpreted that conduct the same way as Wilson precludes a determination that he acted for the purpose of violating the law.
III. Summary of the Evidence
As detailed below, Darren Wilson has stated that he shot Michael Brown in response to a perceived deadly threat. This section begins with Wilson’s account because the evidence that follows, in the form of forensic and physical evidence and witness accounts, must disprove his account beyond a reasonable doubt in order for the government to prosecute Wilson.
A. Darren Wilson’s Account
Darren Wilson made five voluntary statements following the shooting. Wilson’s first statement was to Witness 147, his supervising sergeant at the FPD, who responded to Canfield Drive within minutes and immediately spoke to Wilson. 3 Wilson’s second statement was made to an SLCPD detective about 90 minutes later, after Wilson returned to the FPD. This interview continued at a local hospital while Wilson was receiving medical treatment. Third, SLCPD detectives conducted a more thorough interview the following morning, on August 10, 2014. Fourth, federal prosecutors and FBI agents interviewed Wilson on August 22, 2014. Wilson’s attorney was present for both interviews with the SLCPD detectives. Two attorneys were present for his interview with federal agents and prosecutors. Wilson’s fifth statement occurred when he appeared before the county grand jury for approximately 90 minutes on September 16, 2014.
According to Wilson, he was traveling westbound on Canfield Drive, having just finished another call, when he saw Brown and Witness 101 walking single file in the middle of the street on the yellow line. Wilson had never before met either Brown or Witness 101. Wilson approached Witness 101 first and told him to use the sidewalk because there had been cars trying to pass them. When pressed by federal prosecutors, Wilson denied using profane language, explaining that he was on his way to meet his fiancée for lunch, and did not want to antagonize the two subjects. Witness 101 responded to Wilson that he was almost to his destination, and Wilson replied, “What’s wrong with the sidewalk?” Wilson stated that Brown unexpectedly
3 Witness 147 was jointly interviewed by SLCPD detectives and federal agents and prosecutors on August 19, 2014. He then testified before the county grand jury on September 16, 2014. Witness 147 never documented what Wilson told him during those initial few minutes after the shooting. Witness 147 acknowledged that while talking to Wilson, he was also focused on the shooting scene and crowd safety.
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responded, “Fuck what you have to say.” As Wilson drove past Brown, he saw cigarillos in Brown’s hand, which alerted him to a radio dispatch of a “stealing in progress” that he heard a few minutes prior while finishing his last call. Wilson then checked his rearview mirror, and realized that Witness 101 matched the description of the other subject on the radio dispatch.
Wilson requested assistance over the radio, stating that he had two subjects on Canfield Drive. Wilson explained that he intended to stop Brown and Witness 101 and wait for backup before he did any further investigation into the theft. Wilson reversed his vehicle and parked in a manner to block Brown and Witness 101 from walking any further. Upon doing so, he attempted to open his driver’s door, and said, “Hey, come here.” Before Wilson got his leg out, Brown responded, “What the fuck are you gonna do?”4 Brown then slammed the door shut and Wilson told him to “get back.” Wilson attempted to open the door again. Wilson told the county grand jury that he then told Brown, “Get the fuck back,” but Brown did not comply and, using his body, pushed the door closed on Wilson.
Brown placed his hands on the window frame of the driver’s door, and again Wilson told Brown to “get back.” To Wilson’s surprise, Brown then leaned into the driver’s window, so that his arms and upper torso were inside the SUV. Brown started assaulting Wilson, “swinging wildly.” Brown, still with cigarillos in his hand, turned around and handed the items to Witness 101 using his left hand, telling Witness 101 “take these.” Wilson used the opportunity to grab Brown’s right arm, but Brown used his left hand to twice punch Wilson’s jaw. As Brown assaulted Wilson, Wilson leaned back, blocking the blows with his forearms. Brown hit Wilson on the side of his face and grabbed his shirt, hands, and arms. Wilson feared that Brown’s blows could potentially render him unconscious, leaving him vulnerable to additional harm.
Wilson explained that he resorted to his training and the “use of force triangle” to determine how to properly defend himself. Wilson explained that he did not carry a taser, and therefore, his options were mace, his flashlight, his retractable asp baton, and his firearm. Wilson’s mace was on his left hip and Wilson explained that he knew that the space within the SUV was too small to use it without incapacitating himself in the process. Wilson’s asp baton was located on the back of his duty belt. Wilson determined that not only would he have to lean forward to reach it, giving more of an advantage to Brown, but there was not enough space in the SUV to expand the baton. Wilson’s flashlight was in his duty bag on the passenger seat, out of his reach. Wilson explained that his gun, located on his right hip, was his only readily accessible option.
Consequently, while the assault was in progress and Brown was leaning in through the window with his arms, torso, and head inside the SUV, Wilson withdrew his gun and pointed it at Brown. Wilson warned Brown to stop or he was going to shoot him. Brown stated, “You are
4 The Ferguson Market store clerk’s daughter stated that Brown used a similar statement when her father tried to stop Brown from stealing cigarillos, i.e., “What you gonna do?” While it might seem odd that a person in Brown’s position would verbally confront a police officer, the fact that another witness at a separate location described Brown as speaking similarly a few minutes earlier tends to corroborate Wilson.
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too much of a pussy to shoot,”5 and put his right hand6 over Wilson’s right hand, gaining control of the gun. Brown then maneuvered the gun so that it was pointed down at Wilson’s left hip. Wilson explained that Brown’s size and strength, coupled with his standing position outside the SUV relative to Wilson’s seated position inside the SUV, rendered Wilson completely vulnerable. Wilson stated that he feared Brown was going to shoot him because Brown had control of the gun. Wilson managed to use his left elbow to brace against the seat, gaining enough leverage to push the gun forward until it lined up with the driver’s door, just under the handle. Wilson explained that he twice pulled the trigger but the gun did not fire, most likely because Brown’s hand was preventing the gun from functioning properly. Wilson pulled the trigger a third time and the gun fired into the door. Immediately, glass shattered because the window had been down, and Wilson noticed blood on his own hand. Wilson initially thought he had been cut by the glass.
Brown appeared to be momentarily startled because he briefly backed up. Wilson saw Brown put his hand down to his right hip, and initially assumed the bullet went through the door and struck Brown there. Wilson then described Brown becoming enraged, and that Brown “looked like a demon.” Brown then leaned into the driver’s window so that his head and arms were inside the SUV and he assaulted Wilson again. Wilson explained that while blocking his face with his left hand, he tried to fire his gun with his right hand, but the gun jammed. Wilson lifted the gun, without looking, and used both hands to manually clear the gun while also trying to shield himself. He then successfully fired another shot, holding the gun in his right hand. According to Wilson, he could not see where he shot, but did not think that he struck Brown because he saw “smoke” outside the window, seemingly from the ground, indicating to him a point of impact that was farther away.
Brown then took off running. Wilson radioed for additional assistance, calling out that shots were fired. Wilson then chased after Brown on foot. Federal prosecutors questioned Wilson as to why he did not drive away or wait for backup, but instead chose to pursue Brown despite the attack he just described. Wilson explained that he ran after Brown because Brown posed a danger to others, having just assaulted a police officer and likely stolen from Ferguson Market. Given Brown’s violent and otherwise erratic behavior, Wilson was concerned that Brown was a danger to anyone who crossed his path as he ran.
Wilson denied firing any shots while Brown was running from him. Rather he kept his gun out, but down in a “low ready” position. Wilson explained that he chased after Brown, repeatedly yelling at him to stop and get on the ground. Brown kept running, but when he was about 20 to 30 feet from Wilson, abruptly stopped, and turned around toward Wilson, appearing “psychotic,” “hostile,” and “crazy,” as though he was “looking through” Wilson. While making
5 According to Wilson’s sergeant, Witness 147, Wilson told him that Brown made that comment later when Brown was charging at Wilson in the roadway. Witness 147 remembered this part of Wilson’s account when he testified before the county grand jury, and not when he was interviewed by state and federal authorities. In every other account, Wilson stated that Brown made that comment as soon as he withdrew his gun. 6 During his second interview with SLCPD detectives, Wilson stated he was unsure with which hand Brown reached for Wilson’s gun. During all other statements, when asked, Wilson said that Brown used his right hand.
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a “grunting noise” and with what Wilson described as the “most intense aggressive face” that he had ever seen on a person, Brown then made a hop-like movement, similar to what a person does when he starts running. Brown then started running at Wilson, closing the distance between them to about 15 feet. Wilson explained that he again feared for his life, and backed up as Brown came toward him, repeatedly ordering Brown to stop and get on the ground. Brown failed to comply and kept coming at Wilson. Wilson explained that he knew if Brown reached him, he “would be done.” During Brown’s initial strides, Brown put his right hand in what appeared to be his waistband, albeit covered by his shirt. Wilson thought Brown might be reaching for a weapon. Wilson fired multiple shots. Brown paused. Wilson explained that he then paused, again yelled for Brown to get on the ground, and again Brown charged at him, hand in waistband. Wilson backed up and fired again. The same thing happened a third time where Brown very briefly paused, and Wilson paused and yelled for Brown to get on the ground. Brown continued to “charge.” Wilson described having tunnel vision on Brown’s right arm, all the while backing up as Brown approached, not understanding why Brown had yet to stop. Wilson fired the last volley of shots when Brown was about eight to ten feet from him. When Wilson fired the last shot, he saw the bullet go into Brown’s head, and Brown “went down right there.” Wilson initially estimated that on the roadway, he fired five shots and then two shots, none of which had any effect on Brown. Then Brown leaned forward as though he was getting ready to “tackle” Wilson, and Wilson fired the last shot.
Federal prosecutors questioned Wilson about his actions after the shooting. Wilson explained that he never touched Brown’s body. Using the microphone on his shoulder, Wilson radioed, “Send me every car we got and a supervisor.” Within seconds, additional officers and his sergeant arrived on scene. In response to specific questions by federal prosecutors, Wilson explained that he had left his keys in the ignition of his vehicle and the engine running during the pursuit, so he went back to his SUV to secure it. In so doing, he was careful only to touch the door and the keys. Wilson then walked over to his sergeant, Witness 147, and told him what happened.7 Both Wilson and Witness 147 explained that Witness 147 told Wilson to wait in his SUV, but Wilson refused, explaining that if he waited there, it would be known to the neighborhood that he was the shooter. Wilson explained that the atmosphere was quickly becoming hostile, and he either needed to be put to work with his fellow officers or he needed to leave. Per Witness 147’s orders, Wilson drove Witness 147’s vehicle to the FPD. It was during the drive that Wilson realized he was not bleeding, but had what he thought was Brown’s blood on both hands.
As soon as Wilson got to the police department, he scrubbed both hands. When federal prosecutors challenged why he did so in light of the potential evidentiary value, Wilson explained that he realized after the fact that he should not have done so, but at the time he was reacting to a potential biohazard while still under the stress of the moment. Wilson then rendered his gun safe and packaged it with the one remaining round in an evidence envelope. When federal prosecutors further questioned why he packaged his own gun, Wilson explained that he wanted to ensure its preservation for analysis because it would prove what happened. At first, he hoped Brown’s fingerprints or epithelial DNA from sweat on his hand might be present from when Brown grabbed the gun. But then Wilson actually saw blood on the gun, and
7 According to Witness 147, he spoke to Wilson while Wilson was seated in his SUV.
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assumed that since he was not bleeding, the blood likely belonged to Brown, and therefore, Brown’s DNA would be present.
During Wilson’s interview with federal authorities, prosecutors and agents focused on whether he was consistent with his previous statements, the motivation for his actions, and his training and experience relative to when the use of deadly force is appropriate. Federal prosecutors challenged Wilson with specificity about why he stopped Brown and whether he was aware that Brown and Witness 101 were suspects in the Ferguson Market robbery. Similarly, prosecutors challenged Wilson about his decision to use deadly force inside the SUV, to chase after Brown, and to again use deadly force on Brown in the roadway. Wilson responded to those challenges in a credible manner, offering reasonable explanations to the questions posed.
At the time of his interview, federal prosecutors and agents were aware of the autopsy, DNA, and ballistics results, as detailed below. Wilson’s account was consistent with those results, and consistent with the accounts of other independent eyewitnesses, whose accounts were also consistent with the physical evidence. Wilson’s statements were consistent with each other in all material ways, and would not be subject to effective impeachment for inconsistencies or deviation from the physical evidence.8 Therefore, in analyzing all of the evidence, federal prosecutors found Wilson’s account to be credible.
B. Physical and Forensic Evidence
1. Crime Scene
As noted above, SLCPD detectives from the Bureau of Criminal Identification, Crime Scene Unit processed the scene of the shootings. During processing, they photographed and took video of the crime scene, including Brown’s body and Wilson’s SUV. They measured distances from Brown’s body, Wilson’s SUV, and various pieces of evidence. As described in detail below, they recovered twelve spent shell casings.9 One was located on the ground between the driver’s door and back passenger door of the SUV and another was located near the sidewalk, diagonally across from the driver’s door. Seven casings and one spent projectile were located in the general vicinity of Brown’s body. Those casings were located on the ground next to the left side of his body (on the south side of Canfield Drive), with four closer to his body, and three in the grassy area of the sidewalk. The projectile was located on the right side of Brown’s body (on the north side of Canfield Drive). Three additional casings were further east, or further away from where Brown came to rest. Crime scene detectives also recovered a spent projectile fragment from the wall of an apartment building located east of Brown’s body, in the direction
8 Federal prosecutors were aware of and reviewed prior complaints against Wilson, as well as media reports, alleging Wilson engaged in misconduct. Such allegations were not substantiated, and do not contain information admissible in federal court in support of a prosecution. 9 The locations of the shell casings are consistent with Wilson’s account and the credible witness accounts. However, shell casings provide limited evidentiary value relative to the precise location of the shooter and bullet trajectory because they tend to bounce and roll unpredictably after being ejected from the firearm and before coming to rest.
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toward which Wilson had been shooting.10 As described below, crime scene detectives noted apparent blood11 in the roadway approximately 17 feet and 22 feet east of where Brown’s body was found and east of the casings that were recovered, consistent with Brown moving toward Wilson before his death. There was no other blood found in the roadway, other than the pool of blood surrounding Brown’s body.
Crime scene detectives recovered Brown’s St. Louis Cardinals baseball cap by the driver’s door of the SUV. Two bracelets, one black and yellow, and the other beaded, were found on either side of the SUV.12 Brown’s Nike flip flops were located in the roadway, the left one near the front of the driver’s side of the vehicle, approximately 126 feet west of where Brown’s head came to rest, and the right one in the center of the roadway, 82.5 feet west of where Brown’s head came to rest and just south of the center line. This is consistent with witness descriptions that Brown, wearing his socks, described as bright yellow with a marijuana leaf pattern, ran diagonally away from the SUV, crossing over the center line.
Prior to transport of Brown’s body, the SLCME medicolegal investigator documented the position of Brown’s body on the ground. Brown was on his stomach with his right cheek on the ground, his buttocks partially in the air. His uninjured left arm was back and partially bent under his body with his left hand at his waistband, balled up in a fist. His injured right arm was back behind him, almost at his right side, with his injured right hand at hip level, palm up. Brown’s shorts were midway down his buttocks, as though they had partially fallen down.
The forensic analysis of the seized evidence is detailed below:
2. Autopsy Findings
There were three autopsies conducted on Michael Brown’s body. SLCME conducted the first autopsy. A private forensic pathologist conducted the second autopsy at the request of Brown’s family. AFMES conducted the third autopsy at the Department’s request.
The SLCME, AFMES, and the private forensic pathologist were consistent in their findings unless otherwise noted. Brown was shot at least six and at most eight times. As described below, two entrance wounds may have been re-entry wounds, accounting for why the number of shots that struck Brown is not definite.
Of the eight gunshot wounds, two wounds, a penetrating gunshot wound to the apex of Brown’s head, and a graze or tangential wound to the base of Brown’s right thumb, have the most significant evidentiary value when determining the prosecutive merit of this matter. The former is significant because the gunshot to the head would have almost immediately
10 Crime scene detectives also noted a hole in the wall of an apartment building located on the south side of Canfield Drive, east of Wilson’s SUV. They removed a small section of siding, but were unable to determine whether there was a projectile within the wall without causing significant structural damage to the building. There is no evidence to indicate what caused the hole or when it was made. 11 As noted below, the blood in the roadway was determined to be Brown’s blood. 12 It was never determined to whom these bracelets belong or when they were left in the street.
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incapacitated and immobilized Brown; the latter is significant because it is consistent with Brown’s hand being in close range or having near-contact with the muzzle of Wilson’s gun and corroborates Wilson’s account that Brown struggled with him to gain control of the gun in the SUV.
The skin tags, or flaps of skin created by the graze of the bullet associated with the right thumb wound, indicate bullet trajectory. They were oriented toward the tip of the right thumb, indicating the path of the bullet went from the tip of the thumb toward the base. Microscopic analysis of the wound indicates that Brown’s hand was near the muzzle of the gun when Wilson pulled the trigger. Both AFMES and SLCME pathologists observed numerous deposits of dark particulate foreign debris, consistent with gunpowder soot from the muzzle of the gun embedded in and around the wound. The private forensic pathologist called it gunshot residue, opining that Brown’s right hand was less than a foot from the gun. The SLCME pathologist opined that the muzzle of the gun was likely six to nine inches from Brown’s hand when it fired. AFMES pathologists opined that the particulate matter was, in fact, soot and was found at the exact point of entry of the wound. The soot, along with the thermal change in the skin resulting from heat discharge of the firearm, indicates that the base of Brown’s right hand was within inches of the muzzle of Wilson’s gun when it fired. AFMES pathologists further opined that, given the tangential nature of the wound, the fact that the soot was concentrated on one side of the wound, and the bullet trajectory as detailed below, the wound to the thumb is consistent with Brown’s hand being on the barrel of the gun itself, though not the muzzle, at the time the shot was fired.
The presence of soot also proves that the wound to the thumb was the result of the gunshot at the SUV.13 As detailed below, several witnesses described Brown at or in Wilson’s SUV when the first shot was fired, and a bullet was recovered from within the driver’s door of the SUV. There is no evidence that Wilson was within inches of Brown’s thumb other than in the SUV at the outset of the incident. Additionally, according to the SLCME pathologist and the private forensic pathologist, a piece of Brown’s skin recovered from the exterior of the driver’s door of the SUV is consistent with skin from the part of Brown’s thumb that was wounded. It is therefore a virtual certainty that the first shot fired was the one that caused the tangential thumb wound.
The order of the remaining shots cannot be determined, though the shot to Brown’s head would have killed him where he stood, preventing him from making any additional purposeful movement toward Wilson after the final shots were fired.14 The fatal bullet entered the skull, the brain, and the base of the skull, and came to rest in the soft tissues of the right face. The trajectory of the bullet was downward, forward, and to the right. Brown could not have been standing straight when Wilson fired this bullet because Wilson is slightly shorter than Brown. Brown was likely bent at the waist or falling forward when he received this wound. It is also possible, although not consistent with credible eyewitness accounts, that Brown had fallen to his knees with his head forward when Wilson fired this shot. However, the lack of stippling and soot indicates that Wilson was at least two to three feet from Brown when he fired.
13 Soot typically appears if the muzzle is within less than one foot of the target and stippling typically appears if the muzzle is within two to three feet of the target. 14 This fact was critical for prosecutors in evaluating the credibility of witness accounts that stated that Brown continued moving toward Wilson after Wilson ceased firing shots.
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The remaining gunshots, like the thumb wound, were all on Brown’s right side and none of them would have necessarily immediately immobilized Brown. The lack of soot and stippling indicates that the shots were fired from a distance of at least two to three feet. However, as described below, because of environmental conditions and because Brown’s shirt was blood soaked, it was not suitable for gunshot residue analysis to determine muzzle-to-target distance. Therefore, we cannot reliably say whether gunshot residue on Brown’s shirt might have provided evidence of muzzle-to-target distance. Regardless, gunshot residue is inherently delicate and easily transferrable. 15
In addition to the thumb wound and the fatal shot to the head, Brown sustained a gunshot wound to his central forehead, with a corresponding exit wound of the right jaw. The bullet tracked through the right eye and right orbital bone, causing fractures of the facial bones. Brown sustained another gunshot wound to the upper right chest, near the neck. The bullet tracked though the right clavicle and upper lobe of the right lung, and came to rest in the right chest. Brown sustained another entrance wound to his lateral right chest. The bullet tracked through and fractured the eighth right rib, puncturing the lower lobe of the right lung. The bullet was recovered from the soft tissue of the right back. The AFMES pathologists and the private forensic pathologist opined that the right chest wound could have been a re-entry wound from an arm wound as described below, and the clavicle wound could have been a re-entry wound from the bullet that entered Brown’s forehead and exited his jaw. The SLCME pathologist also allowed for the possibility of re-entry wounds, but did not opine with specificity due to the variability of such wounds.
Brown also sustained a gunshot wound to the front of the upper right arm, near the armpit, with a corresponding gunshot exit wound of the back of the upper right arm. The remaining gunshot wounds were also to the right arm. These bullet trajectories are described according to the standard anatomic diagram, that is, standing, arms at sides, palms facing forward. That said, Brown sustained a gunshot wound to the dorsal (back) right forearm, below the elbow. The bullet tracked through the bone in the forearm, fracturing it, and exiting through the ventral (front) right forearm. Finally, Brown sustained a tangential or graze gunshot wound to the right bicep, above the elbow.
Given the mobility of the arm, it is impossible to determine the position of the body relative to the shooter at the time the arm wounds were inflicted. Therefore, the autopsy results do not indicate whether Brown was facing Wilson or had his back to him. They do not indicate whether Brown sustained those two arm wounds while his hands were up, down, or by his waistband. The private forensic pathologist opined that he would expect a re-entry wound across Brown’s stomach if Brown’s hand was at his waistband at the time Wilson fired. However, as mentioned, there is no way to know the exact position of Brown’s arm relative to his waistband
15 Although Brown’s shirt was blood soaked, the private forensic pathologist noted the following with regard to Brown’s shorts and socks, “Examination of the clothing…shows small dried blood drops on his khaki shorts and yellow socks most consistent with drops from the hand wound.” This was significant to prosecutors because it is not inconsistent with Brown lowering his hands and/or putting his hand(s) near his waistband.
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at the time the bullets struck. Therefore, these gunshot wounds neither corroborate nor discredit Wilson’s account or the account of any other witness. However, the concentration of bullet wounds on Brown’s right side is consistent with Wilson’s description that he focused on Brown’s right arm while shooting.
The autopsy established that Brown did not sustain gunshot wounds to his back.16 There was no evidence to corroborate that Wilson choked, strangled, or tightly grasped Brown on or around his neck, as described by Witness 101 in the summary of his account below. There were no bruises, abrasions, hemorrhaging of soft tissues, or any other injuries to the neck, nor was there evidence of petechial hemorrhaging of Brown’s remaining left eye. The private forensic pathologist opined that although the lack of injury does not signify the absence of strangulation, it would be “surprising,” given Brown’s size, if Wilson attempted to strangle Brown. The private forensic pathologist explained that the act of strangling is often committed by the stronger person, as it is rarely effective if attempted by the person of smaller size or weaker strength.17
Brown sustained a one inch superficial incised wound to the right middle of the front of his left arm. SCLME differed with AFMES, characterizing this wound as an abrasion, but AFMES opined that this was more like a cut, consistent with being caused by broken window glass. Brown also sustained abrasions to the right side of the head and face, including abrasions near the right forehead, the lateral right face, and the upper right cheek, consistent with Brown falling and impacting the ground with his face. The private forensic pathologist opined that the severity of these abrasions could have been caused by involuntary seizures as Brown died. He also opined, as did the SLCME pathologist, that these abrasions were consistent with Brown impacting the ground upon death and sliding on the roadway due to the momentum from quickly moving forward.
According to the AFMES and SCLME pathologists, Brown also had small knuckle abrasions, but the pathologists could not link them to any specific source. The SLCME pathologist opined they may have been inflicted post mortem, while the AFMES pathologist opined that they were too small to determine whether they were caused pre or post-mortem.18 The private forensic pathologist did not note any knuckle abrasions or injury to Brown’s hands, explaining that he would expect Brown to have knuckle injury if Wilson sustained broken bones, but not necessarily bruising. AFMES pathologists likewise concurred that lack of injury to Brown’s hands is not inconsistent with bruising to Wilson’s face.
3. DNA Analysis
16 This evidence was significant to prosecutors when determining the credibility of those witness accounts that stated that Wilson shot Brown in the back. 17 This evidence was significant to prosecutors when determining the credibility of those witness accounts that stated that Wilson choked or grabbed Brown by the neck at the outset of the struggle at the SUV. 18 Post mortem abrasions are consistent with Brown’s hands hitting the ground after the final shot to the vortex of the head. It is less likely that they were inflicted during removal of Brown’s body because Brown’s hands were secured in brown paper bags prior to transport.
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The SLCPD Crime Laboratory conducted DNA analysis on swabs taken from Wilson, Brown, Wilson’s gun, and the crime scene. Brown’s DNA was found at four significant locations: on Wilson’s gun; on the roadway further away from where he died; on the SUV driver’s door and inside the driver’s cabin area of the SUV; and on Wilson’s clothes. A DNA mixture from which Wilson’s DNA could not be excluded was found on Brown’s left palm.
Analysis of DNA on Wilson’s gun revealed a major mixture profile that is 2.1 octillion times more likely a mixture of DNA from Wilson and DNA from Brown than from Wilson and anyone else. This is conclusive evidence that Brown’s DNA was on Wilson’s gun.19
Brown is the source of the DNA found in two bloodstains on Canfield Drive, approximately 17 and 22 feet east of where Brown fell to his death, proving that Brown moved forward toward Wilson prior to the fatal shot to his head.
Brown’s DNA was found both on the inside and outside of the driver’s side of the SUV. Brown is the source of DNA in blood found on the exterior of the passenger door of the driver’s side of the SUV. Likewise, a piece of Brown’s skin was recovered from the exterior of the driver’s door of the SUV, consistent with Brown sustaining injury while at that door. Brown is also the source of the major contributor of a DNA mixture found on the interior driver’s door handle of the SUV. A DNA mixture obtained from the top of the exterior of the driver’s door revealed a major mixture profile that is 6.9 million times more likely a mixture of DNA from Wilson and DNA from Brown than from Wilson and anyone else.
Brown’s DNA was found on Wilson’s uniform shirt collar and pants. With respect to the left side of Wilson’s shirt and collar, it is 2.1 trillion times more likely that the recovered DNA mixture is DNA from Wilson and DNA from Brown than from Wilson and anyone else. Similarly, with respect to a DNA mixture obtained from the left side of Wilson’s pants, it is 34 sextillion times more likely that the mixture is DNA from Wilson and DNA from Brown than from Wilson and anyone else. Brown is also the source of the major male profile found in a DNA mixture found in a bloodstain on the upper left thigh of Wilson’s pants.
DNA analysis of Brown’s left palm revealed a DNA mixture with Brown as the major contributor, and Wilson being 98 times more likely the minor contributor than anyone else.
DNA analysis of Brown’s clothes, right hand, fingernails, and clothes excluded Wilson as a possible contributor.
4. Dispatch Recordings
19 While it is possible that Wilson inadvertently transferred Brown’s blood from his own hand to his gun either after the struggle or while packaging his gun (even though Wilson claimed to have already washed his hands), such a possibility is speculative. The autopsy results and bullet trajectory are consistent with Brown’s DNA being present on the gun as a result of the struggle over the gun. Regardless, the absence of Brown’s DNA on Wilson’s gun would not change the prosecutive decision.
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According to FPD records, at about 11:53 a.m., a dispatcher called out a “stealing in progress” at the address of Ferguson Market while Wilson was in the midst of a sick infant call. During his interview with federal officials, Wilson told prosecutors and agents that he heard the call on his portable radio, but did not hear the specifics about the location of the “stealing in progress.” He also stated that he heard that one of the suspects was wearing a “black shirt,” that they had stolen cigarillos, and were going toward the Quick-Trip. The actual description given was that of a “black male in a white t-shirt,” “running toward the Quick-Trip,” and that “he took a whole box of Swisher cigars.” Two officers, Witness 145 and Witness 146, the same two FPD officers who first responded to Canfield Drive after the shooting, responded to the Ferguson Market. At approximately 11:56 a.m., Witness 145, via radio, added, “He’s with another male. He’s got a red Cardinals hat, white t-shirt, yellow socks, and khaki shorts.”
Wilson left the sick call at approximately 11:58 a.m., after EMS arrived to transport the mother and sick child to the hospital. Twenty-seven seconds later, Wilson radioed to Witness 145 and Witness 146, “Do you guys need me?,” corroborating that Wilson was aware of the theft at Ferguson Market prior to his encounter with Brown. Witness 145 responded that the suspect “disappeared into the woodwork.” Wilson, having not heard him, asked the dispatcher to “relay.” The dispatcher then clarified, “He thinks that they…disappeared.” Wilson then said “clear,” indicating that he understood.
Wilson drove his police SUV west on Canfield Drive, where he encountered Brown and Witness 101 walking east in the middle of the street. Wilson’s last recorded radio transmission occurred at approximately noon when he called out, “Put me on Canfield with two and send me another car,” consistent with Wilson’s account that he radioed for backup once he interacted with Brown and Witness 101.
Several radio transmissions followed from dispatch and from Officer 145 seeking a response from Wilson to no avail. About one minute and forty seconds following Wilson’s last transmission, Witness 145 called out to send the supervising sergeant to Canfield Drive and Copper Creek Court, the location of the shooting incident. There were no recorded radio transmissions from Wilson from the time Wilson called for assistance to the time that Witness 145 called for a supervisor.
As noted above, Wilson stated that he also radioed for backup after the initial shots when Brown ran from the SUV, and then again after he shot Brown to death. According to Wilson, as he left the shooting scene, he realized that his radio must have switched from channel 1, which he had been using, to channel 3 during the initial struggle. Channel 3 is a dedicated channel for the North County Fire Department. It only receives transmissions, and therefore, officers cannot use that channel to transmit messages to dispatch. While this is not definitive evidence that Wilson attempted to call for assistance both after the initial shots in the SUV and after he killed Brown, it offers a plausible explanation for the lack of radio transmissions. Moreover, as detailed below, there are several witnesses who state that Wilson paused in the SUV after Brown took off running, arguably giving him enough time to attempt to radio dispatch. Likewise, several witnesses saw Wilson appear to use his shoulder microphone after Brown fell to the ground, presumably to radio dispatch.
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5. Ballistics
Witness 143, a firearms and toolmarks examiner with the SLCPD, conducted the ballistics analysis for the St. Louis County Police Laboratory. Witness 144, an FBI firearms and toolmarks examiner, conducted gunshot residue analysis and reconstructed the shooting incident.
i. Wilson’s Firearm and Projectiles Fired
There were a total of five projectiles, and a fragment from another projectile, recovered from the crime scene and Brown’s autopsy. There were a total of 12 shell casings recovered from the crime scene. Wilson’s gun can hold up to 13 rounds, 12 in the magazine and one in the chamber. Witness 143 test-fired Wilson’s Sig Sauer S&W .40 caliber semi-automatic pistol, noting apparent blood on the gun. He compared the test bullets and casings to those seized as evidence from Brown’s body and the crime scene. Witness 143 confirmed that all 12 shell casings were fired from Wilson’s gun, consistent with the one round remaining in the gun after the shooting. Witness 143 also confirmed that four of the recovered projectiles, as well as the recovered fragment, were fired from Wilson’s gun. The remaining projectile, recovered from the inside of the driver’s door of Wilson’s SUV, was too damaged to conclusively find that it came from Wilson’s gun.
ii. Projectile Recovered from SUV
Witness 144 conducted a shooting incident reconstruction of the interior driver’s door panel of Wilson’s SUV to determine the trajectory of the bullet that was recovered there. The trajectory of the bullet was at a downward angle from left to right, striking the armrest near the interior door handle, entering the door from inside the SUV, and coming to rest inside the door. This is consistent with Wilson’s description of the initial gunshot.
Witness 144 conducted gunshot residue analysis on the inside of the driver’s door. Particulate and vaporous lead residues found on the interior driver’s door panel near the interior window weather stripping and on the interior side frame of the driver’s door were, like the recovery of the bullet itself, consistent with the discharge of a firearm. These residues were unsuitable for muzzle-to-target distance determinations. However, vaporous lead residues rarely are deposited at a distance greater than 24 inches, consistent with Wilson discharging his firearm while seated in the driver’s seat, less than two feet from the driver’s door.
iii. Gunshot Residue on Brown’s Shirt
Witness 144 conducted gunshot residue analysis on Brown’s shirt. For the most part, gunshot residue analysis can only determine whether defects in an item, i.e., the holes in his shirt, are the result of gunshots. Analysis cannot determine the directional travel of bullets.
Witness 144 examined seven holes in the shirt. Gunshot residues in the form of nitrite and bullet wipe lead residues were found near some of the holes. This does not necessarily suggest that the remaining holes were not created by bullets. According to Witness 144, lack of
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gunshot residue could be due to the possibility of intervening conditions, like large amounts of blood, environmental conditions, or the way the shirt was folded and packaged.
Likewise, the presence of nitrite residues tells very little. Nitrite residues were found near three holes in Brown’s right sleeve, and one hole in the right chest of this shirt. Test-firing of the gun showed that nitrite residues appear at a muzzle-to-target distance of eight feet or less, consistent with Wilson’s description and several other witness descriptions that Wilson and Brown were about eight feet apart during the final shots. However, the residues were not in a measurable pattern. This means that they may not even be associated with the specific holes in the shirt that they are near, but rather may be just indiscriminate residue from any of the shots, including the close range shots at the SUV, or transferred from one shot to another during the handling and packaging of the clothes.
6. Fingerprints
Wilson’s gun was not tested for the presence of Brown’s fingerprints. After SLCPD crime scene detectives recovered Wilson’s gun, they submitted the gun for DNA analysis rather than for fingerprints analysis. The detectives told federal prosecutors that they knew that typically testing for one would preclude testing for the other, and there was a high likelihood of DNA given the presence of apparent blood on the gun. They also knew that even according to Wilson, Brown never had sole possession of the gun, and if Brown ever had control of the gun at all, it was only when Brown’s hand was over Wilson’s hand during a struggle for the gun, lessening the likelihood of fingerprints. Furthermore, based on their training and experience, there was a greater likelihood of finding a DNA profile on the gun than lifting fingerprints with enough fine ridge detail to make it suitable for comparison.20 Because the gun was swabbed in its entirety, it could not later undergo latent fingerprint analysis.21
SLCPD crime scene detectives lifted five latent fingerprints from the outside of the driver’s door of the SUV. Two were unsuitable for comparison; one was determined to be Wilson’s fingerprint; and the remaining two prints, although suitable for comparison, belonged to neither Brown nor Wilson. The leather interior of the SUV was unsuitable for recovering latent prints. Fingerprint examiners also tested Wilson’s duty belt for fingerprints, but none recovered was suitable for comparison.
7. Audio Recording of Shots Fired
Witness 136 was in his apartment using a video chat application on his mobile phone when the shooting occurred. According to Witness 136, he heard “maybe three” gunshots followed by a five to six second pause. After those first gunshots, Witness 136 recorded the remainder of his chat and turned it over to the FBI. The recording is about 12 seconds long and captured a total of 10 gunshots. The gunshots begin after the first four seconds. The recording
20 The grips and hammer, the latter of which was where blood was recovered on Wilson’s gun, are textured, making it difficult to lift latent prints. 21 Fingerprint analysis would not have changed the prosecutive decision. Had the gun yielded Brown’s fingerprints, such evidence would further corroborate Wilson’s account. If the gun did not test positive for Brown’s fingerprints, the state of the evidence would remain the same.
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then captured six gunshots in two seconds. There was a three second pause, followed by a seventh gunshot. There was a quick pause of less than one second before the final three-shot volley within two seconds. The recording was not time-stamped. As detailed below, this recording is consistent with several credible witness accounts as well as Wilson’s account, that he fired several volleys of shots, briefly pausing between each one.
8. Wilson’s Medical Records
Paramedics examined Wilson when he returned to the FPD after the shooting, and recommended that he go to the hospital for follow-up treatment. Wilson sought medical treatment at Christian Northwest Hospital within two hours of the shooting. Witness 117, a nurse practitioner, examined Wilson. For the purpose of making a medical diagnosis, Witness 117 questioned Wilson about what happened. Wilson stated that he was twice punched in the jaw. Witness 117 noted acute or fresh pink scratch marks on the back of Wilson’s neck as well as swelling to his jaw. Wilson sustained a contusion of the mandibular joint or jaw area, but did not break his jaw or any other bones. According to Witness 117, Wilson’s injuries were consistent with his description of what transpired.
Wilson submitted to a drug and alcohol screen. His blood alcohol content was 0.00% and he tested negative for cocaine, marijuana metabolites, amphetamines, opiates, and phencyclidine, the chemical commonly known as PCP.
9. Brown’s Toxicology
A toxicologist with the St. Louis University (SLU) Toxicology Laboratory and the Chief of the Division of Forensic Toxicology at AFMES each conducted blood and urine screens on samples collected from Brown’s body. Brown tested positive for the presence of cannabinoids, the hallucinogenic substances associated with marijuana use. The SLU Toxicology Laboratory found 12 nanograms per milliliter of Delta-9-THC, the active ingredient in marijuana, where AFMES found 11 nanograms per milliliter of Delta-9-THC in Brown’s blood.
According to both laboratories, these levels of Delta-9-THC are consistent with Brown having ingested THC within a few hours before his death. This concentration of THC would have rendered Brown impaired at the time of his death. As a general matter, this level of impairment can alter one’s perception of time and space, but the extent to which this was true in Brown’s case cannot be determined. THC affects individuals differently depending on unknown variables such as whether Brown was a chronic user and the concentration of the THC ingested.
10. Ferguson Market Surveillance Video
At approximately 11:53 a.m. on August 9, 2014, about ten minutes prior to the shooting, Brown and Witness 101 went to Ferguson Market, a nearby convenience store. Surveillance video shows Brown stealing several packages of cigarillos and then forcefully shoving the store clerk who tried to stop him from leaving the store without paying. Evidence of this theft and assault likely would be admissible by the defense in a prosecution of Wilson because it is relevant to show Brown’s state of mind at or near the time of the shooting, and arguably corroborates Wilson’s self-defense claim.
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Surveillance cameras captured the incident without audio. SLCPD detectives, FBI agents, and federal prosecutors jointly interviewed the store employees who were present at the time. The employees, a father (the clerk who was assaulted) and his adult daughter, are of Indian origin. The father does not speak English well, and therefore, was not as able as his daughter to recount with specificity what Brown said during the incident.
The video depicts Brown and Witness 101 entering the store and proceeding to the front counter. Brown stood at the register, as Witness 101 waited behind him. Brown asked the clerk behind the counter for cigarillos. The clerk put a package of cigarillos on the counter. Brown then “snatched” the package of cigarillos from the counter. Using his left hand, Brown reached behind him and gave them to Witness 101.22 Brown then reached over the counter, as Witness 101 described and the video shows, and took additional packages of cigarillos. In so doing, Brown dropped some of the cigarillos and had an exchange with the clerk during which he refused to pay. Witness 101 then placed the cigarillos that Brown had given him back on the register counter, as Brown picked up his stolen goods from the floor.
Brown and Witness 101 proceeded to the exit and the clerk, who is about 5’6” and 150 lbs, attempted to stop them. The clerk first tried to hold the store door closed to prevent Brown’s exit. However, Brown shoved the clerk aside, and as Witness 101 walked out the door, Brown menacingly re-approached the clerk. According to the store employees, Brown, looking “crazy” and using profane language, said something like, “What are you gonna do about it?” Brown then exited the store and the clerk’s daughter called 911.
C. Witness Accounts
As the first responding investigators, SLCPD detectives interviewed witnesses on Canfield Drive within the first few hours of the shooting. One week later, on August 16, 2014, in an effort to identify additional witnesses who may have been reluctant to speak with local law enforcement, the FBI conducted a neighborhood canvass of more than 300 residences. Federal and county authorities largely conducted additional interviews jointly, unless a witness expressed discomfort with the presence of either federal agents or SLCPD detectives. To evaluate the merits of a potential federal prosecution, federal prosecutors and FBI agents conducted follow-up interviews. Many witnesses also testified before the county grand jury. Unless otherwise noted, witnesses did not know, or know of, Brown or Wilson prior to the shooting.
For ease of review, this report divides the summaries of witness accounts into three sections based on the nature and credibility of their accounts to a jury. First, the report summarizes the accounts of those witnesses whose statements have been materially consistent, are consistent with the physical evidence, and that are mutually corroborative. For these reasons, prosecutors determined these witness accounts were reliable and would be credible to jurors. This section is further broken down into subsections for those witness accounts that support Wilson’s claim of self-defense and those that support a criminal prosecution of Wilson. Of
22 Brown’s actions on the surveillance video at that moment mimicked the way in which Wilson described Brown again handing the cigarillos to Witness 101 minutes later as Brown assaulted Wilson in the SUV.
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course, to support a prosecution of Wilson under 18 U.S.C. § 242, the weight of the evidence from those witness accounts that support a prosecution must be prove the violation beyond a reasonable doubt to twelve reasonable jurors. A prosecution will fail if the credible evidence creates “reasonable doubt” of Wilson’s guilt by supporting Wilson’s statements that he acted reasonably and in self-defense. The second section of summaries contains those accounts that neither inculpate Wilson nor fully corroborate Wilson’s account. These witnesses, regardless of whether prosecutors determined their accounts to be credible, would not strengthen the government’s case in a prosecution of Wilson. The third section of summaries contains those witness accounts that are inconsistent with the physical and forensic evidence, materially inconsistent with that witness’s own prior statements, or those witnesses who have recanted large portions of their accounts, admitting that they did not in fact witness the shooting as they initially claimed. Therefore, for this last category of witnesses, federal prosecutors either could not rely on their accounts to support a prosecution of Darren Wilson or did not consider their accounts in making a prosecutive decision.
1. Witnesses Materially Consistent with Prior Statements, Physical Evidence, and Other Witnesses and Therefore, Give Credible Accounts
i. Witnesses Materially Consistent with Prior Statements, Physical Evidence, and Other Witnesses Who Corroborate That Wilson Acted in Self-Defense
a. Witness 102
Witness 102 is a 27-year-old bi-racial male. Witness 102 gave three statements. First, SLCPD detectives interviewed him; second, FBI agents interviewed him; third, Witness 102 testified before the county grand jury.
Witness 102 was doing house repairs on a residence on Canfield Drive when the shooting occurred. Witness 102 first noticed Brown and Witness 101 walking down Canfield Drive about 20 minutes prior to the shooting when he went to his truck to retrieve a broom. Brown’s size initially drew Witness 102’s attention. When Witness 102 later came back outside to get another tool, he noticed Wilson’s SUV parked in the middle of the street at an angle, with the driver’s side closer to the center of the street. Witness 102’s vantage point was street level, about 450 feet from the SUV with a view of the driver’s side of the SUV.
According to Witness 102, he saw Brown standing on the driver’s side of the SUV, bent over with his body through the driver’s window from the waist up. Witness 102 explained that Brown was “wrestling” through the window, but he was unable to see what Wilson was doing. After a few seconds, Witness 102 heard a gunshot. Immediately, Brown took off running in the opposite direction from where Witness 102 was standing. Witness 102 heard something metallic hit the ground. Witness 102 thought that he had just witnessed the murder of a police officer because a few seconds passed before Wilson emerged from the SUV. Wilson then chased Brown with his gun drawn, but not pointed at Brown, until Brown abruptly turned around at a nearby driveway. Witness 102 explained that it made no sense to him why Brown turned around. Brown did not get on the ground or put his hands up in surrender. In fact, Witness 102 told investigators that he knew “for sure that [Brown’s] hands were not above his head.” Rather,
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Brown made some type of movement similar to pulling his pants up or a shoulder shrug, and then “charged” at Wilson. It was only then that Wilson fired five or six shots at Brown. Brown paused and appeared to flinch, and Wilson stopped firing. However, Brown charged at Wilson again, and again Wilson fired about three or four rounds until Brown finally collapsed on the ground. Witness 102 was in disbelief that Wilson seemingly kept missing because Brown kept advancing forward. Witness 102 described Brown as a “threat,” moving at a “full charge.” Witness 102 stated that Wilson only fired shots when Brown was coming toward Wilson. It appeared to Witness 102 that Wilson’s life was in jeopardy. Witness 102 was unable to hear whether Brown or Wilson said anything.
Witness 102 did not see Brown’s friend, Witness 101, at any time during the incident until Witness 101 “came out of nowhere,” shouting, “‘They just killed him!’” Witness 101 seemed to be shouting toward a blue Monte Carlo23 that had stopped behind Wilson’s SUV. Witness 101 then ran off. Witness 102 explained that once he saw officers putting up police tape, he went down to the scene and began telling another onlooker what he had witnessed. Witness 102 later learned via a “friend” on Facebook that his voice was inadvertently captured on another bystander’s cell phone recording. Federal prosecutors reviewed this recording and Witness 102 identified his voice on the recording when he testified before the county grand jury. In it, Witness 102 can be heard correcting someone else who was recounting what he heard from others, that Wilson “stood over [Brown] and shot while on the ground.” In response, Witness 102 stated that Wilson shot Brown because Brown came back toward Wilson. Witness 102 “kept thinking” that Wilson’s shots were “missing” Brown because Brown kept moving.
Witness 102 did not stay on Canfield Drive long after the shooting, but rather started to leave the area after about five minutes because he felt uncomfortable. According to Witness 102, crowds of people had begun to gather, wrongly claiming the police shot Brown for no reason and that he had his hands up in surrender. Two black women approached Witness 102, mobile phones set to record, asking him to recount what he had witnessed. Witness 102 responded that they would not like what he had to say. The women responded with racial slurs, calling him names like “white motherfucker.”
Witness 102 called 911 the following day to report what he saw. He then went to the FPD on Monday, August 11, 2014, where he was referred to the SLCPD. Witness 102 explained that he came forward because he “felt bad about the situation,” and he wanted to “bring closure to [Brown’s] family,” so they would not think that the officer “got away with murdering their son.” He further explained that “most people think that police are bad for ‘em up until the time they’re in need of the police,” and he felt that witnesses would not come forward to tell the truth in this case because of community pressure.
As described above, all of Witness 102’s statements were materially consistent with each other, with physical and forensic evidence, and with other credible witness accounts. Witness 102 does not have a criminal history. Therefore, if called as a defense witness in a prosecution of Darren Wilson, this witness’s account would not be vulnerable to meaningful crossexamination and would not be subject to impeachment due to bias or inconsistencies in his prior statements. Accordingly, after a thorough review of all the evidence, federal prosecutors
23 As detailed below, the Monte Carlo in question was white.
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determined his account to be credible and likewise determined that a jury appropriately would credit his potential testimony.
b. Witness 103
Witness 103 is a 58-year-old black male who gave two statements. First, Witness 103 was reluctant to meet with SLCPD detectives, FBI agents, and federal prosecutors because he has no particular allegiance to law enforcement. Witness 103 is a convicted felon who served time in federal prison, and has a son who was shot and injured by law enforcement during the commission of a robbery. Witness 103 expressed concerns because there were signs in the neighborhood of Canfield Drive stating, “snitches get stitches.” Therefore, he agreed to be interviewed only on the condition of confidentiality. Witness 103 later testified before the county grand jury.
According to Witness 103, he was driving his blue pickup truck in the opposite direction of Wilson’s SUV, and ended up virtually next to the driver’s side of the SUV when it stopped. Relative to Witness 102, Witness 103 had a similar, but much closer view of the driver’s side of the SUV. If the parked SUV is viewed as dividing Canfield Drive in half, both Witness 102 and Witness 103 were on the same side, with a view of Brown’s back as he ran from Wilson, and a view of Brown’s front as he ran toward Wilson.
When Witness 103 stopped his truck on Canfield Drive, although he did not see what led up to it, he saw Brown punching Wilson at least three times in the facial area, through the open driver’s window of the SUV. Witness 103 described Wilson and Brown as having hold of each other’s shirts, but Brown was “getting in a couple of blows.” Wilson was leaning back toward the passenger seat with his forearm up, in an effort to block the blows. Then Witness 103 heard a gunshot and Brown took off running. Wilson exited the SUV, appeared to be using his shoulder microphone to call into his radio, and chased Brown with his gun held low.
Witness 103 explained that Brown came to a stop near a car, put his hand down on the car, and turned around to face Wilson. Brown’s hands were then down at his sides. Witness 103 did not see Brown’s hands up. Wanting to leave, Witness 103 began to turn his car around in the opposite direction that Brown had been running when he heard additional shots. Witness 103 turned to his right, and saw Brown “moving fast” toward Wilson. Witness 103 then drove away.
Witness 103 had a passenger in his truck. Although Witness 103 tried to facilitate contact between federal and state authorities and the passenger, the passenger refused to identify himself or provide any information.
When Witness 103 was initially subpoenaed to testify before the county grand jury, he expressed even more reluctance than he did during his investigative interview, this time alleging memory loss. However, he ultimately testified consistently with his original account, with the physical and forensic evidence, and with other credible witness accounts. Therefore, if called as a defense witness in a federal prosecution of Darren Wilson, Witness 103 would be subject to limited impeachment for his two felony convictions, including a theft conviction, but his apparent antipathy toward law enforcement would bolster testimony that corroborates Wilson.
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Accordingly, after a thorough review of all the evidence, federal prosecutors determined his account to be credible, and likewise determined that a jury appropriately would credit his potential testimony.
c. Witness 104
Witness 104 is a 26-year-old bi-racial female. Witness 104 gave three statements. SLCPD detectives interviewed her, federal prosecutors and agents interviewed her, and she testified before the county grand jury.
Witness 104 was in a minivan that had been traveling in the opposite direction of Wilson, and came to a halt in front of Wilson’s SUV, and somewhat behind, yet adjacent to Witness 103’s blue pickup truck. Witness 104 was on the same side of the SUV as Witness 102 and Witness 103. She was seated in the middle row behind the driver’s seat of the minivan, leaning over toward the center, with a direct view of Brown running away from Wilson, a frontal view of Brown coming back toward Wilson, and the shooting thereafter. Witness 104 is the adult daughter of the two witnesses in the driver and passenger front seats, Witness 105 and Witness 106, respectively. She is the sister of Witness 107, who was seated in the middle row passenger seat to her right.
According to Witness 104, she was leaning over, talking to her sister, Witness 107, when she heard two gunshots. She looked out the front window and saw Brown at the driver’s window of Wilson’s SUV. Witness 104 knew that Brown’s arms were inside the SUV, but she could not see what Brown and Wilson were doing because Brown’s body was blocking her view. Witness 104 saw Brown run from the SUV, followed by Wilson, who “hopped” out of the SUV and ran after him while yelling “stop, stop, stop.” Wilson did not fire his gun as Brown ran from him. Brown then turned around and “for a second” began to raise his hands as though he may have considered surrendering, but then quickly “balled up in fists” in a running position and “charged” at Wilson. Witness 104 described it as a “tackle run,” explaining that Brown “wasn’t going to stop.” Wilson fired his gun only as Brown charged at him, backing up as Brown came toward him. Witness 104 explained that there were three separate volleys of shots. Each time, Brown ran toward Wilson, Wilson fired, Brown paused, Wilson stopped firing, and then Brown charged again. The pattern continued until Brown fell to the ground, “smashing” his face upon impact. Wilson did not fire while Brown momentarily had his hands up. Witness 104 explained that it took some time for Wilson to fire, adding that she “would have fired sooner.” Wilson did not go near Brown’s body after Brown fell to his death.
Witness 104 explained that she first saw Brown’s friend, Witness 101, when he took off running as soon as the first two shots were fired. She never saw him again.
All three of Witness 104’s statements were consistent with each other, consistent with the physical and forensic evidence, and consistent with other credible witness accounts. Witness 104 does not have a criminal history. Therefore, if called as a defense witness in a prosecution of Darren Wilson, this witness’s account would not be vulnerable to meaningful cross– examination and would not be subject to impeachment due to bias or inconsistencies in prior statements. Accordingly, after a thorough review of all the evidence, federal prosecutors
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determined her account to be credible, and likewise determined that a jury appropriately would credit her potential testimony.
d. Witness 105
Witness 105 is a 50-year-old black female. She gave two statements. SLCPD detectives interviewed her, and federal prosecutors explained the nature of the two parallel criminal investigations to Witness 105 prior to her testimony before the county grand jury. Witness 105 was driving a minivan in which Witness 104, her daughter, was seated behind the driver’s seat in the middle row. Her husband, Witness 106, was next to her in the front passenger seat, and her other daughter, Witness 107, was seated behind her husband and next to Witness 104. Witness 105 had been traveling east on Canfield Drive, when she stopped in front of Wilson’s vehicle with a view of the driver’s side of his vehicle. Her view was also of the back of Brown as he first ran away, and then the front of Brown as he turned around and came back toward Wilson.
According to Witness 105, Wilson was driving a car, not an SUV, and a gunshot drew her attention to the vehicle. She noticed Brown’s hands on Wilson’s “car.” Brown then ran eastbound and Wilson chased after him, gun in hand but held low. Witness 105 explained that Brown put his hands up “for a brief moment,” and then turned around and made a shuffling movement. Wilson told Brown to “get down,” but Brown did not comply. Instead, Brown put his hands down “in a running position.” Witness 105 could not tell whether Brown was “charging” at Wilson or whether his plan was to run past Wilson, but either way, Brown was running toward Wilson. According to Witness 105, Wilson only shot at Brown when Brown was moving toward him. She could not see Brown’s hands as he was running, but saw him reaching down as he began to fall to the ground. Witness 105 saw Wilson shoot Brown in the face before he began to stumble. Once Brown was on the ground, it appeared to Witness 105 that Wilson was calling out on the radio using his shoulder microphone.
When Witness 105 contacted SLCPD detectives, she was reluctant to identify herself and ultimately met with them in a library parking lot. She explained that she was coming forward because in speaking with her neighbors, she realized that what they believed had happened was inconsistent with what actually happened. She further explained that that she had not been paying attention to media accounts, and had been unaware of the inaccuracies being reported.
Both of Witness 105’s statements were consistent with each other, materially consistent with the physical and forensic evidence, and consistent with other credible witness accounts in all material ways. Witness 105 has no criminal history. If called as a defense witness in a prosecution of Darren Wilson, this witness’s account would be subject to limited impeachment on her ability to accurately perceive what occurred, e.g., that she perceived Wilson driving a car, rather than an SUV. However, that line of cross-examination does not undermine the overall consistency of her account with other credible witness accounts and with the physical evidence. Accordingly, after a thorough review of all the evidence, federal prosecutors determined her account to be largely credible and likewise determined that a jury appropriately would credit her potential testimony.
e. Witness 108
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Witness 108 is a 74-year-old black male who claimed to have witnessed the shooting, stated that it was justified, but repeatedly refused to give formal statements to law enforcement for fear of reprisal should the Canfield Drive neighborhood find out that his account corroborated Wilson. He was served with a county grand jury subpoena and refused to appear.
During the initial canvass of the crime scene on August 9, 2014, in the hours after the shooting, SLCPD detectives approached Witness 108, who was sitting in his car on Canfield Drive. They asked if he witnessed what happened. Witness 108 refused to identify himself or give details, but told detectives that the police officer was “in the right” and “did what he had to do,” and the statements made by people in the apartment complex were inaccurate. Both state and federal investigators later attempted to locate and interview Witness 108, who repeatedly expressed fear in coming forward. During the investigators’ attempts to find Witness 108, another individual reported that two days after the shooting, Witness 108 confided in her that he “would have fucking shot that boy, too.” In saying so, Witness 108 mimicked an aggressive stance with his hands out in front of him, as though he was about to charge. SLCPD detectives finally tracked down Witness 108 at a local repair shop, where he reluctantly explained that Wilson told Brown to “stop” or “get down” at least ten times, but instead Brown “charged” at Wilson. Witness 108 told detectives that there were other witnesses on Canfield Drive who witnessed the same thing. An SLCPD detective and federal prosecutor again tracked down Witness 108 in hopes of obtaining a more formal statement. However, Witness 108 refused to provide additional details to either county or federal authorities, citing community sentiment to support a “hands up” surrender narrative as his reason to remain silent. He explained that he would rather go to jail than testify before the county grand jury.
Witness 108 has no criminal history. Witness 108’s accounts, although quite general, are clearly exculpatory as to Wilson and consistent with other credible evidence. His reluctance to testify in opposition to community sentiment lends further credence to his account.
f. Witness 109
Witness 109 is a 53 year-old black male. Like Witness 108, Witness 109 claimed to have witnessed the shooting, stated that it was justified, and repeatedly refused to give formal statements to law enforcement for fear of reprisal should the Canfield Drive neighborhood find out that his account corroborated Wilson. He was served with a county grand jury subpoena and refused to appear. Likewise, Witness 109 repeatedly refused to formally meet with SLCPD detectives, FBI agents, or federal and county prosecutors.
Law enforcement identified Witness 109 through a phone call that he made to the SLCPD information line at 5:19 p.m. on the day of the shooting. During that six-minute recorded call, the operator transferred Witness 109 to an SLCPD detective, and Witness 109 provided the following information, repeatedly refusing to meet with detectives in person. Witness 109 stated that he did not want his phone number traced, and would deny everything if it was traced. Witness 109 stated that he did not know Brown or his friend, Witness 101. However, he was calling because Witness 101, whom he described as the “guy with the dreads,” lied on national television. Witness 109 described Brown and Witness 101 walking on the center line of the
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street when the officer asked them to get out of street. Brown responded something to the effect of, “Fuck the police.” According to Witness 109, Wilson got out of his vehicle and Brown, the “young guy that died,” hit him in the face. Witness 109 explained that Wilson reached for what appeared to be a taser but dropped it, and then grabbed a gun. Witness 109 explained that Brown reached for Wilson’s gun. Although Witness 109’s description was somewhat disjointed, he also stated that at first Brown ran away from Wilson, but then kept coming toward Wilson. Wilson told Brown to stop and lie down, but Brown failed to comply. Witness 109 said that Wilson fired in self-defense, explaining that Wilson did not shoot to kill at first, but “he unloaded on him when [Brown] wouldn’t stop.” Witness 109 said that “a lot of people saw that it was justified,” ending the call by stating, “I know police get a bad rap, but they’re here to protect us.”
Federal and county prosecutors and investigators tried to no avail to interview Witness 109. True to his word on that initial phone call, he would not discuss what he saw. He did, however, acknowledge that he placed a call to the SLCPD information line.
Witness 109 does have a criminal history that would be admissible in federal court. Witness 109 has a misdemeanor theft conviction from 1985 and a felony arrest, both of which likely would be inadmissible in federal court for impeachment purposes. Witness 109’s account is exculpatory as to Wilson and although Witness 109 may be subject to limited impeachment, the majority of his description is consistent with the physical and forensic evidence, and consistent with other credible witness accounts. Community sentiment and therefore his reluctance to testify on behalf of Wilson would likely bolster his account.
g. Witness 113
Witness 113 is a 31-year-old black female. She was interviewed one time by FBI agents during their canvass on August 16, 2014, and gave an account that generally corroborated Wilson, but only after she was confronted with untruthful statements she initially made in an effort to avoid neighborhood backlash. When local authorities tried to serve Witness 113 with a subpoena to testify before the county grand jury, she blockaded her door with a couch to avoid service.
Witness 113 was on her brother’s balcony, located opposite and to the left of the aforementioned minivan, when she first saw Brown walking in the street. Contrary to other witness accounts, Witness 113 saw what she believed to be three black males walking in the street, and two police vehicles present, calling into question whether she actually witnessed the beginning of the incident. She explained that one of the police officers told Brown and his friends to go on the sidewalk, and then subsequently called Brown over to his vehicle, where a struggle occurred.
Witness 113 then gave an account that was contrary to physical evidence, internally inconsistent, and admittedly untrue. She first explained that Brown ran east, away from Wilson, as Wilson shot at him. However, she then explained that she watched as Brown ran west past Wilson, who shot Brown right next to the SUV. Witness 113 stated that Wilson fired shots into Brown’s back as he lay flat on his stomach on the ground. When the FBI told Witness 113 that the autopsy results and other evidence were inconsistent with her account, she admitted that she
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lied. She explained to the FBI that, “You’ve gotta live the life to know it,” and stated that she feared offering an account contrary to the narrative reported by the media that Brown held his hands up in surrender.
Witness 113 then admitted that she saw Brown running toward Wilson, prompting Wilson to yell, “Freeze.” Brown failed to stop and Wilson began shooting Brown. Witness 113 told the FBI that it appeared to her that Wilson’s life was in danger. She explained there was a pause in the shots before the firing resumed, but Witness 113 had ducked down for cover and did not see anything after the first volley of shots.
Witness 113 was with her brother and boyfriend when the shooting occurred. Witness 113 refused to provide their contact information, and they both repeatedly evaded law enforcement’s attempts to meet with them.
Witness 113 has no criminal history that would be admissible in federal court. Witness 113 has past arrests but no convictions, which likely would be inadmissible in federal court. In a federal prosecution, if served and called to testify on behalf of Wilson, federal prosecutors could subject Witness 113 to cross-examination due to her admittedly untruthful statements during the first part of her interview with the FBI. However, her reasons for being untruthful, coupled with the fact that she immediately changed course when her statements were challenged, give her account reliability. Accordingly, prosecutors did not discount her narrative in its entirety, but rather in examining all of the evidence, considered this witness’s account in making a prosecutive decision.
h. Witness 134
Witness 134 is a 36-year-old white female. She was interviewed one time by federal authorities. At the time of her interview with federal agents and prosecutors, she was Wilson’s fiancée and was Wilson’s field training officer in 2011. Prosecutors considered her potential bias when interviewing Witness 134, but sought out and evaluated her account for several reasons. First, as noted below in the legal analysis, to make a determination as to whether a potential civil rights defendant has the requisite criminal intent, prosecutors must consider a subject officer’s training as part of an evaluation of his overall understanding of when the use of deadly force is permissible. Second, Witness 134 spoke to Wilson minutes after the shooting, while he was arguably still under the stress of the situation and immediately after he perceived it. It is possible that in a prosecution of Wilson, defense counsel would be permitted to introduce Wilson’s initial statements to Witness 134 through the “present sense impression” or “excited utterance” hearsay exceptions. Fed. R. Evid. 803(1); 803(2).
Witness 134 explained that when she was Wilson’s field training officer for the FPD, he did not require a lot of training because he had prior experience as a law enforcement officer. Wilson knew and understood that he was permitted to use physical force when he or someone else was met with a physical threat. As Wilson’s training officer, she never had concerns as to whether he understood when he was permitted to use force.
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Witness 134 was on light duty on August 9, 2014, working at the police department building because she was pregnant. She was working the same shift as Wilson and was waiting to join him for lunch. Witness 134 stated that when Wilson arrived at the FPD at about 12:15 p.m., he did not seem like himself. His face was red and puffy, consistent with injury. Knowing something was wrong, she asked Wilson what happened. Wilson responded, “I just killed someone.” Wilson also told her that he had washed blood from his hands.
Witness 134 also explained that other than facial injuries, she did not notice additional injuries or blood on Wilson, but she did notice blood on the hammer of his gun, still holstered in his belt. Wilson asked her to retrieve latex gloves for him, which Wilson then used to clear and package his gun. Witness 134 did not actually see Wilson do this because her back was to him, although she could hear what he was doing. She also saw the envelope, presumably containing the gun, sealed with evidence tape, but did not know who eventually took it to an evidence locker.
Prior to packaging his gun, Wilson gave Witness 134 a narrative consistent with the accounts he later gave throughout the course of the investigation. Federal agents and prosecutors asked Witness 134 to be specific about what Wilson told her at the police department in the immediate aftermath as opposed to subsequent conversations that they have had since the shooting. Witness 134 was certain that Wilson told her the following: He told Brown and his friend to get out of the street, but did not say anything “ignorant” that would anger them. As Wilson was passing Brown and his friend, he saw cigarillos in Brown’s hand and noticed Witness 101’s black shirt and realized that they matched the description of the suspects involved in the “stealing in progress.” As Brown was attacking Wilson, Wilson explained that in his mind, he went through the weapons available to him on his gun belt. He knew that he had no choice but to use his gun.
Wilson explained to Witness 134 that he was able to shoot inside the SUV, but did not know where the bullet went and whether it hit Brown. Brown ran off and Wilson chased him, explaining to Witness 134 that “all of a sudden,” Brown stopped, turned around, and started “charging” him. Witness 134 explained that although she could not remember the exact words Wilson said he used, he said something like, “Get on the ground,” trying to get Brown to stop. However, Wilson told her that Brown did not stop and continued to charge at Wilson. Wilson fired at Brown and continued to do so until Brown was on the ground because Brown “just wouldn’t stop.”
Witness 134 explained that Wilson was shaken, but confident that he did the right thing in the moment, although he became worried in the few minutes that followed the shooting because the neighborhood was quickly becoming hostile.
Witness 134 explained that in all of their conversations, Wilson had been adamant that Brown’s hands were not up, but rather, Brown’s right hand was in his waistband with his left hand in a fist, as though he was running. Witness 134 said that she was relieved to see the results of the private autopsy in the media because it showed a series of shots in Brown’s right arm, consistent with Wilson’s explanation that he had tunnel vision during the shooting.
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After learning of Witness 101’s account alleging that Wilson grabbed Brown’s throat by reaching out the driver’s window and then subsequently shooting him while he was surrendering, Wilson told Witness 134 that Witness 101 was not present for the shooting because he saw Witness 101 run off as soon as Brown handed him the cigarillos during the assault at the SUV window. Wilson and Witness 134 agreed that the notion that a police officer would attempt to pull an individual into his vehicle, especially someone as big as Brown, is contrary to training. Wilson described Brown as Hulk Hogan-like, such that he could have easily overpowered Wilson.
Witness 134 has no criminal history. If called as a defense witness in a prosecution of Darren Wilson, Witness 134 would be subject to cross- examination due to obvious bias. However, her account of what Wilson told her is consistent with Wilson’s previous statements, with other credible witness accounts, and with the forensic and physical evidence. Accordingly, having met Witness 134 and considered her manner and demeanor, federal prosecutors found her account credible. Nonetheless, because of Witness 134’s relationship with Wilson and because most of her information came directly from Wilson, prosecutors did not heavily rely on her account when making a prosecutive decision.
ii. Witnesses Consistent with Prior Statements, Physical Evidence, and Other Witnesses Who Inculpate Wilson
There are no witnesses who fall under this category.
2. Witnesses Who Neither Inculpate Nor Fully Corroborate Wilson
i. Witness 107
Witness 107 is a 30-year-old black female. Witness 107 was seated in the passenger seat in the middle row of a minivan that was stopped opposite Wilson’s SUV at the time of the shooting. Witness 107 was seated next to her sister Witness 104 and behind her father, Witness 106. Witness 105, her mother, was seated in the driver’s seat. However, when Witness 107 initially described what happened, she mistakenly thought she was in the front passenger seat and forgot that her father was present. She also mistakenly thought that they had been driving in the same direction as Wilson.
Witness 107 gave three statements. First, an SLCPD detective and an FBI agent jointly interviewed her. Federal prosecutors and agents conducted a follow-up interview to address inconsistencies with the physical evidence in her original account. Witness 107 also testified before the county grand jury.
According to Witness 107, she was looking at her mobile phone when she heard two gunshots. She looked up and out the front windshield, and saw Brown run away from Wilson. Witness 107 mistakenly thought that Wilson was standing toward the front of the passenger side of the police vehicle, and could not remember whether the vehicle was an SUV or a car. Wilson then chased after Brown and drew his gun, shooting three times. Contrary to the autopsy results, Witness 107 stated that Wilson shot Brown in the leg and hip as Brown was running away.
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Brown then turned around and briefly put his hands with up, palms forward, near his shoulders, as though he was “giving up.” But then Brown put his hands down, one of them holding his chest, as he came back toward Wilson, though Witness 107 was unsure whether Brown was stumbling or running. Wilson fired the last shots from 10 to 15 feet away from Brown, and kept shooting as Brown was falling to the ground.
Witness 107 explained that immediately following the shooting, her mother drove to a nearby parking lot. She and her family members discussed what they witnessed, and they all seemed to have witnessed different things. Her sister, Witness 104, for example, was adamant that Brown “charged” at Wilson, whereas Witness 107 expressed uncertainty. The family also could not reach a consensus as to the number of shots fired.
When Witness 107 met with federal prosecutors and agents, she was visibly shaken by what she witnessed, articulating the difficulty of watching someone die. However, given the differences among what she and her family saw, and realizing that she was factually incorrect about the direction of the police vehicle, the location where Wilson stood, and where the bullets struck Brown, she was not certain about what she believed she witnessed.
Witness 107 has one prior misdemeanor arrest that likely would not be admissible in federal court. As detailed above, Witness 107 was admittedly mistaken or unsure about some of what she perceived, rendering her account vulnerable to effective cross-examination. Regardless of credibility, her account does not inculpate Darren Wilson and does not support a federal prosecution.
ii. Witness 106
Witness 106 is a 45-year-old white male. As mentioned, he was seated in the front passenger seat of a minivan, driven by his wife, Witness 105. Witness 106’s daughters, Witness 104 and Witness 107, were seated in the middle row of the minivan, behind the driver and front seat passenger, respectively. According to Witness 106, although his wife saw Wilson emerge from what she remembered was a police car, he first saw Wilson and Brown when they were in the street. It initially looked to Witness 106 like Brown had a gun and there was a firefight happening, although he has since realized that not to be the case. Regardless, Witness 106’s overall impression was that he witnessed a police officer “taking down a gunman in a residential neighborhood before anyone else got hurt.” It was for that reason that Witness 106 agreed to speak with SLCPD detectives. He otherwise does not “have any love” for law enforcement, having served 18 years in prison. Witness 106 also testified before the county grand jury.
Witness 106 explained that he first saw Brown as he ran from Wilson. Wilson fired one shot which seemed to hit Brown in the leg because Brown appeared to stagger. Brown’s arms then “briefly flung” out and he turned around to face Wilson. Witness 106 then explained that even though the neighborhood had been talking about Brown having his “hands up,” Brown “did not have his hands up.” Brown’s arms were down at his sides, such that Witness 106 could not even see Brown’s hands. Witness 106’s vantage point was over Wilson’s shoulder. Witness 106 saw Brown walk toward Wilson and thought that Brown was about to shoot Wilson, as Wilson
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shot Brown until he fell to his death. Wilson was about six to 10 feet from Brown when he fired the final shots at Brown.
Witness 106’s account is inconsistent with the physical and forensic evidence and other credible witness accounts. He has a conviction for sexual abuse that would likely be admissible in federal court as impeachment evidence, although his bias tends to bolster his account. Regardless of its credibility, Witness 106’s account does not inculpate Darren Wilson and therefore does not support a federal prosecution.
iii. Witness 110
Witness 110 is a 51-year-old black male who is married to Witness 111. Witness 110 spoke to SLCPD detectives on two occasions. As noted below, the second interview occurred because Witness 111 was too upset to complete the first interview. Witness 110 also testified before the county grand jury.
Witness 110 and Witness 111 first came into contact with SLCPD detectives because they were attending a social function the evening of August 9, 2014. The couple told a friend, an attorney, what they had witnessed, and the friend called the SLCPD on their behalf. SLCPD detectives responded to the venue of the social function to interview Witness 110 and Witness 111, but they were reluctant to speak to law enforcement, fearing retaliation from people in the community. They agreed to speak only on the condition of confidentiality. However, during that initial contact with SLCPD detectives, Witness 111 began crying and could not talk about what she witnessed. Witness 110 was too shaken to give a full account, but he did explain that earlier that day, he and his wife were at the Canfield Green Apartments complex visiting Witness 110’s elderly mother and brother, Witness 112. He then gave a brief account which he detailed a few days later when he met again with SLCPD detectives.
According to Witness 110, he and Witness 111 were driving on Canfield Drive when they noticed Brown and his friend, Witness 101, walking in the center of the street and had to veer around them to avoid hitting them. Witness 111 commented to Witness 110, “Why don’t they just get on the sidewalk?” As they were pulling into the driveway of the building they were visiting, they noticed Wilson driving in the opposite direction. During his initial interview with SLCPD detectives, Witness 110 explained that while in the driveway, he noticed Brown standing beside the driver’s door of the SUV, with the upper portion of his body inside the driver’s area of the SUV. Witness 110 did not mention this during his second interview with SLCPD detectives or when he testified in front of the county grand jury.
Witness 110 then explained that he and Witness 111 went up to the second floor apartment balcony, located opposite and off to the right of the minivan with Witness 104, Witness 105, Witness 106, and Witness 107. Their vantage point was of the passenger side of the SUV, followed by the right profile of Brown as he ran away from Wilson, and then the left profile of Brown as he turned around and moved toward Wilson.
Witness 110 stated that he witnessed an exchange between Wilson, Brown, and Witness 101, but did not hear what was said. Wilson reversed his vehicle, using it to block Brown and Witness 101. Brown and Wilson engaged in a back and forth “scuffle,” although Witness 110
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could not see exactly what happened because the SUV blocked his view of Brown. They then heard a shot and Witness 101 “disappeared.” Brown remained at the SUV and the scuffle continued until there was a second gunshot and Brown took off running. When Brown reached a nearby driveway, he stopped and looked down at his hand, which Witness 111 noted had blood on it. Witness 110 believed that Brown looked at his left hand. Brown put his hands out at his sides, palms up, as though asking, “What the heck?” Brown then moved toward Wilson with his hands in that same position, and Wilson shot Brown. Brown then paused, the shooting stopped, and then Brown advanced again. Witness 110 stated that Wilson shot Brown only when Brown was moving toward him, and did not shoot at Brown as he ran away. Witness 110 initially told SLCPD detectives that Brown moved “quickly,” although he testified in the county grand jury that he could not describe how Brown was moving toward Wilson, though he was not “charging” or “running.” At no time were Brown’s hands up in surrender or otherwise.
Witness 110 has no criminal history. As noted, Witness 110’s second interview was consistent with his grand jury testimony, though partially inconsistent with what he initially told SLCPD detectives. Nonetheless, Witness 110’s account was consistent with the physical and forensic evidence. Regardless of the credibility of his account, it does not inculpate Wilson, and therefore does not support a federal prosecution.
iv. Witness 111
Witness 111 is a 48-year-old black female who is married to Witness 110. As mentioned, she was too upset to speak with SLCPD detectives on the evening of August 9, 2014, but did speak to law enforcement on August 18, 2014, when she was jointly interviewed by SLCPD detectives, FBI agents, and federal prosecutors. Federal authorities also met with Witness 110 at that time. Witness 111 subsequently testified before the county grand jury.
Witness 111’s account is consistent with the account of Witness 110, with two exceptions. First, when she witnessed Brown turn around after fleeing from Wilson, Witness 111 explained that Brown looked down at his right hand, which was bleeding. This is contrary to Witness 110, who said that Brown looked down at his left hand and did not mention seeing blood. Second, Witness 111 described Brown as moving back toward Wilson in “slow motion,” where Witness 110 at one time described Brown walking “quickly,” but later could not characterize his pace. According to Witness 111, at no time were Brown’s hands up in surrender or otherwise.
Witness 111 has no criminal history. Witness 111’s statements were consistent with each other, and with the physical and forensic evidence, and therefore, Witness 111 would not be vulnerable to cross-examination on those grounds. However, Witness 111 was especially distraught during her investigatory interview, stating that she, too, has a teenage son and commenting that she wished Wilson had used a form of less lethal force. Her bias could subject her to effective cross-examination, and led federal prosecutors to question whether her bias was affecting her ability to accurately recall events. Regardless, Witness 111’s account does not inculpate Wilson, and therefore does not support a federal prosecution.
v. Witness 115
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Witness 115 is a 32-year-old black male. Witness 115 gave three investigatory statements and was interviewed by the media on several occasions. First, SLCPD detectives interviewed Witness 115 within hours of Brown’s death. Second, federal agents and prosecutors conducted a follow-up interview, during which they challenged Witness 115 on what he actually witnessed as opposed to what he assumed had taken place. Witness 115 also testified before the county grand jury.
According to Witness 115, he was in his second floor apartment at the time of the shooting, on the same side of the SUV as the minivan occupied by Witness 104, Witness 105, Witness 106, and Witness 107, but with a view of Brown’s right profile as he was coming back toward Wilson. Just before noon, Witness 115 was in his bedroom when he heard what he thought was an altercation. He described hearing “strong voices” or loud grunts, but could not make out specific words or sounds. Witness 115 went to his window and looked through horizontal blinds by pushing them apart. He saw Brown at the driver’s door of the SUV and “arms were being exchanged.” Federal prosecutors and agents asked Witness 115 to demonstrate Brown’s actions, and he did so by making a fist and a punching motion. Witness 115 demonstrated that Wilson had his arm bent across his chest in a defensive position, but he was reluctant to state that Brown “punched” Wilson. However, after federal prosecutors played Witness 115’s own cell phone video back to him, he acknowledged that on the video, recorded right after Brown died, he narrated, “Dude was all up in his car; dude was punching on him,” and that “dude” was Brown. Witness 115 explained that his initial impression was that Brown was punching Wilson because Brown was on the outside, standing on the street, and appeared to have the upper hand.
Witness 115 explained that he suddenly saw both Brown and his friend, Witness 101, who had been standing toward the front part of the SUV, start running. Witness 115 did not know why they started to run and he did not hear a gunshot, though he acknowledged that the suddenness with which they ran was consistent with a shot being fired. Brown ran down the middle of the street and Witness 101 started to crouch down by a white Monte Carlo. According to Witness 115, Wilson then got out of his SUV, gun drawn, and immediately fired shots as he began to quickly walk in Brown’s direction. With each shot, Witness 101 ducked down a little more, creeping around the Monte Carlo until he went from the driver’s side to the passenger side, and out of Witness 115’s view. Witness 115 explained that while he was watching Witness 101, he was not watching Brown, who had disappeared from his range of view once he ran from Wilson.
Witness 115 stated that there was a pause in the shooting and he used this opportunity to go out on his balcony to get a better look. As he did, he realized that he left his mobile phone on his dresser. He went back to his bedroom, retrieved his phone, and returned to his balcony. At the same time, he called to his wife, Witness 124, who joined him with their three children. By the time Witness 115 saw Brown again, Brown was walking back toward Wilson with his arms folded across his stomach. Witness 115 said he “assumed” that Wilson had shot Brown in the stomach, although he did not see this happen. This assumption is inconsistent with the autopsy findings.
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Witness 115 stated that he did not see Brown with his hands up and Brown did not appear to be surrendering. Rather, Brown looked as though he was slowly going down to the ground as he walked toward Wilson. Wilson then fired another volley of shots and Brown fell to the ground with one arm under him and the other at his side. Consistent with Wilson’s account, Witness 115 explained that once Brown was on the ground, Wilson kept his gun drawn and appeared to be talking in his radio on his shoulder. According to Witness 115, at no time did Wilson touch Brown’s body.
Witness 115 described the crowds that began to form immediately after the shooting, as people began to gather and talk about what happened. Witness 115 explained that although he initially spoke to SLCPD detectives only four hours after the incident, by then, he had already discussed the incident with Witness 124 and with a passerby on the street. He explained that this passerby can be heard on Witness 115’s cell phone video, attempting to correct Witness 115, as Witness 115 narrated that Brown had been punching Wilson.
Witness 115 expressed that he felt comfortable with federal prosecutors and agents who were questioning him about assumptions and inconsistencies. However, Witness 115 was concerned that because of the constant talk in the neighborhood and his multiple media appearances without the presence of a lawyer, he may have unwittingly made inconsistent statements in the past.
Witness 115 has one prior misdemeanor conviction, which likely would be inadmissible in federal court as impeachment evidence. Witness 115 is vulnerable to effective crossexamination because he did not witness significant parts of the shooting and based parts of his account on assumption. Regardless of credibility, Witness 115’s account does not inculpate Darren Wilson and therefore does not support a federal prosecution.
vi. Witness 141
Witness 141 is a 19-year-old black male who moved out of Missouri after the shooting. Witness 141 gave three statements. First, FBI agents based in Texas interviewed him. Federal prosecutors and agents conducted a follow-up interview. Finally, Witness 141 testified before the county grand jury.
According to Witness 141, he was sitting on his balcony when he saw Brown and Witness 101 walking down the middle of Canfield Drive. Witness 141 knew Brown through a friend, but did not have regular interaction with him. Unrelated to the shooting incident, Witness 141 went into his apartment to retrieve his mobile phone. While inside, he heard gunshots, prompting him to go back out to the balcony. Witness 141 saw Wilson pointing his gun at Brown, who had his hand across his front torso or waist. Brown never had his hands up in surrender or otherwise. Brown appeared to be stumbling or walking toward Wilson, who fired about five to seven shots at Brown from a distance of about eight feet. Brown collapsed to the ground. Witness 141 did not see Witness 101 anywhere. Witness 141 used his mobile phone to record a video in the aftermath of Brown’s death.
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Witness 141 testified before the county grand jury that he thought that after Wilson fired the first shot, the additional shots were “excessive,” an opinion that would be inadmissible in federal court, and a misstatement of the applicable federal law. Witness 141 based that opinion on the fact that he did not perceive Brown to be a physical threat. However, he acknowledged that he did not see what led up to the initial shots, and did not see Brown run from Wilson, turn around to face Wilson, or any of Brown’s actions during that time. Rather, he only saw Wilson shoot Brown as Brown moved toward him.
Witness 141 has no criminal history. Witness 141’s statements were consistent with each other, but he did not witness large parts of the incident. Regardless of whether his account is credible, it does not inculpate Darren Wilson and therefore does not support a federal prosecution.
vii. Witness 114
Witness 114 is a 75-year-old black female. She gave two statements. First, she was interviewed by the FBI, and she later testified before the county grand jury.
Witness 114 saw the initial interaction between Brown and Wilson from her second floor window. Witness 114’s view was of the passenger side of Wilson’s SUV. Witness 114 saw Brown and Witness 101 walking in the middle of Canfield Drive, when Wilson stopped his SUV and leaned his head out of the driver’s window as though saying something to Brown. Brown then made some sort of hand gesture, indicating to Witness 114 that he was responding to Wilson. Wilson continued driving, but then jerked back his SUV and parked it at an angle, with the back of the SUV closer to the center of the street. According to Witness 114, Brown remained there, while Witness 101 kept walking. She did not see Witness 101 again.
Next, Witness 114 saw Wilson hold onto Brown, though she was unsure how the physical contact began. Witness 114 stated that Wilson and Brown were “tussling,” explaining that she could see Brown’s hands inside the SUV by looking through the passenger side window. However, she did not see any other part of his body go into the SUV because Brown was standing straight up. From her perspective, it looked like Brown was trying to pull away. Yet Witness 114 acknowledged that had Wilson un-holstered his gun in the manner he described, it was also possible, given Brown’s position, that Brown reached for Wilson’s gun.
Witness 114 watched Brown run from the SUV, followed by Wilson with his gun drawn, until they both disappeared from her line of sight. She heard two gunshots followed by six more gunshots, but did not see Wilson fire any shots. Witness 114 changed her clothes and went down to street level to see Brown’s body in the street.
Witness 114 has no criminal history. Witness 114’s statements were consistent with each other, however, she did not see the majority of the shooting. Accordingly, her account does not inculpate Wilson and therefore does not support a federal prosecution.
viii. Witness 129
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Witness 129 is a 22-year-old black male. He gave two statements. First, FBI agents interviewed him as part of their canvass on August 16, 2014. Second, Witness 129 testified before the county grand jury.
Witness 129 was outside his apartment when he saw Brown and his friend, Witness 101, walking in the middle of Canfield Drive. Wilson pulled up next to them in his SUV. Brown and Witness 101 kept walking and Wilson backed up to cut them off. Brown and Wilson then engaged in a “scuffle.” Witness 129’s view was of the passenger side of the SUV. Therefore, although he could tell that Wilson remained in the driver’s seat of the SUV while Brown was standing outside of the SUV, Witness 129 could not describe exactly what Brown and Wilson were doing or how the upper half of Brown’s body was positioned relative to the SUV. Witness 129 then heard a gunshot, but Brown remained at the SUV and the scuffle continued for another 20 to 30 seconds. A second shot then went off and Brown ran eastbound down Canfield Drive. Witness 129 explained that Witness 101 ducked behind a white car, ran around it, and went in the other direction. Wilson got out of the SUV and fired one or two shots, though Witness 129 did not see whether the shots struck Brown, nor did he see what Brown was doing, because a nearby building blocked his view.
Witness 129 has no criminal history. Witness 129’s statements were materially consistent with each other and consistent with other credible evidence. However, Witness 129’s account does not inculpate Wilson, and therefore does not support a federal prosecution.
ix. Witness 116
Witness 116 is a 16-year-old black male. He gave three statements. First, he met with SLCPD detectives within hours of the shooting in the presence of his father and father’s girlfriend. He subsequently met with federal agents and prosecutors. Finally, he testified before the county grand jury.
Witness 116 explained that he was in his apartment watching television when he heard screams, prompting him to go to the window and look out of the vertical blinds. Witness 116 saw Brown with his hands inside the driver’s side of the SUV. He then saw Wilson take out what appeared to be a taser. Wilson shot the taser one time, but missed, which is why Witness 116 surmised that Wilson took out his gun. Brown’s friend, Witness 101, took off running somewhere into the apartment complexes.
Wilson shot once or twice, and Brown, with arms at his sides, ran out of view. Witness 116 looked away because he assumed that Brown had been apprehended. He then heard five or six more shots and looked back out the window to see Brown dead on the ground. Witness 116 did not see what happened leading up to Brown standing by the SUV.
Witness 116’s statements were consistent, but he also mistakenly believed that Wilson used a taser. Regardless of the reliability of his account, Witness 116 did not witness significant parts of the shooting. Like several of the witnesses in this section of the report, that which he did see does not inculpate Darren Wilson and therefore does not support a federal prosecution.
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3. Witnesses Whose Accounts Do Not Support a Prosecution Due to Materially Inconsistent Prior Statements or Inconsistencies With the Physical and Forensic Evidence
i. Witness 101
Witness 101 is a 22-year-old black male who was walking in the middle of Canfield Drive with Brown when they encountered Wilson. Witness 101 made multiple statements to the media immediately following the incident that spawned the popular narrative that Wilson shot Brown execution-style as he held up his hands in surrender. These media interviews occurred prior to Witness 101 giving his two statements. First, FBI and SLCPD jointly interviewed Witness 101 on August 13, 2014, in the presence of Witness 101’s mother, Witness 101’s two attorneys, and an individual who explained that he was in charge of Witness 101’s personal security. Witness 101 subsequently testified before the county grand jury.
According to Witness 101, he and Brown had been friends for about two to three months as of the day of the shooting. Witness 101 viewed himself as a role model or mentor to Brown. Witness 101 came into contact with Brown on August 9, 2014, at about 7:00 a.m. At some point between then and just prior to noon, he and Brown decided to go to Ferguson Market to get cigarillos. Witness 101 could not recall in detail what the pair was doing in those five intervening hours, other than to explain that they were playing video games and talking. However, Witness 101 explained that just prior to going to Ferguson Market, Brown engaged in a 25-minute conversation about marijuana with one of two contractors who were working in the apartment complex.
Witness 101 explained that when they went to Ferguson Market, Brown stole cigarillos from behind the counter as though he was entitled to them, and then subsequently shoved the store clerk, who was substantially smaller in stature than Brown, who was 6’5” and 289 lbs. Witness 101 initially minimized these events when speaking with law enforcement, but then acknowledged to the county grand jury that Brown was surprisingly aggressive. Brown’s behavior caught Witness 101 off guard because it was uncharacteristic of Brown and contrary to Brown’s usual behavior. Witness 101 expected to encounter the police when they left Ferguson Market because he heard the clerk say he was going to call the police. Witness 101 described Brown’s behavior as “bold” when Brown openly carried the stolen cigarillos as they walked down Canfield Drive.
Witness 101 and Brown were walking eastbound, single-file, on Canfield Drive in the center of the street on the yellow line when they encountered Wilson driving in the opposite direction in his marked FPD SUV. Witness 101 explained that they had not been obstructing traffic, although several cars had to avoid Brown and Witness 101 as they drove by. Wilson told them to “get the fuck on the sidewalk,” and Witness 101 responded that they were “not but one minute from their destination.” Brown and Witness 101 did not move onto the sidewalk, but continued to walk in the middle of the street. As Wilson drove past them, he reversed his SUV and parked it at an angle, blocking both lanes in the road and almost hitting them, asking, “What did you just say?” According to Witness 101, Wilson attempted to open the driver’s side in an “aggressive” and “forceful” manner. The door opened less than an inch because of Brown and
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Witness 101’s proximity to the door. The door quickly bounced off of Brown and Witness 101 and shut on Wilson. According to Witness 101, this angered Brown. Witness 101 also stated that he understood how Wilson could have perceived that Brown shut the door on him.
According to Witness 101, Wilson then reached out the window and up with his left hand, grabbing Brown by the throat. The private forensic pathologist termed such an action “surprising,” based on the autopsy results and his experience as a forensic pathologist. Wilson and Brown engaged in a “tug of war,” during which Wilson unsuccessfully tried to pull Brown toward the SUV as Brown attempted to pull away, while still holding the cigarillos. Witness 101 told county and federal investigators that Brown told Wilson, “Get the fuck off me. We’re not doin’ anything wrong. Leave us the fuck alone.” However, Witness 101 explained that even though Wilson had his grip on Brown, Brown had the upper hand both because of his stature and his physical position relative to the car. As Witness 101 told investigators, Wilson would have to be “superhuman” to “overpower” Brown. Witness 101 told the county grand jury that Brown was getting “the best of the officer” because Wilson was only using his left hand. During this tug of war, Wilson’s grip gradually slipped from Brown’s throat to his shirt, down to his shoulder and arm. Although Witness 101 told the county grand jury that Wilson gripped Brown’s right arm, Witness 101 told investigators that Wilson mostly was gripping Brown’s shirt by pulling it down over Brown’s forearm. According to Witness 101, at no point did Brown ever strike, punch, or grab any part of Wilson. He could offer no explanation as to how Wilson sustained injury, other than to speculate that it was the result of their “tug of war.”
As the “tug of war” continued, Brown was then able to turn to his right toward Witness 101 and hand off the cigarillos with both hands. Brown then put his left hand on the door frame under the rearview mirror, while Wilson, using his left hand, maintained hold of Brown’s right arm or sleeve. According to Witness 101, Wilson used his right hand to grab hold of Brown’s left arm, although it is unclear from Witness 101’s accounts whether he actually saw that happen or assumed it happened. Wilson, also using his right hand, then took out his gun and said, “I’m going to shoot.” Witness 101 saw Wilson holding the gun and aiming it out the window when Wilson again started to say, “I’m going to shoot.”
Witness 101 explained that Wilson fired, hitting Brown in the torso. Witness 101 described blood on the right side of Brown’s torso. At the time of the shot, Brown was standing straight, his midsection up against the door, with his left hand down at his side and Wilson gripping Brown’s right arm. Contrary to the autopsy results, particularly with regard to the thumb wound and the round recovered from the inside of the driver’s door, Witness 101 was adamant that Wilson neither fired a shot within the SUV, nor did Brown have his hand(s) near the gun when the first shot was fired. Witness 101 explained that Wilson fired the shot and “the bullet traveled outside the car and struck [Brown] in the chest.” Witness 101 was equally adamant that Brown’s hands and arms never entered the SUV, telling investigators that the only hand that would have been “free” would have been Brown’s left hand, and that hand neither entered the vehicle nor “reached for” Wilson’s gun. However, when he testified before the county grand jury, Witness 101 made room for the possibility that Brown’s arm entered the SUV when he was not looking.
According to Witness 101, after the first shot, Brown and Witness 101 simultaneously ran eastbound, away from the SUV. Witness 101 explained that he got ahead of Brown, such
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that his back was to both Brown and Wilson. Fearing for his life, Witness 101 crouched down among the cars that had now stopped in the middle of the street because of the parked SUV. Witness 101 attempted to get into a nearby car, a gray Sunfire, but the occupants would not allow him inside. Brown ran past Witness 101, telling him, “Keep running, bro.” After a pause, Witness 101 explained that he heard Wilson emerge from the SUV. Witness 101 stood up and watched “in plain sight” as Wilson passed him and chased after Brown.
According to Witness 101, Wilson then fired a second shot which appeared to strike Brown in the back. Brown’s arms were not raised at that time. During his investigative interview, Witness 101 stated that the bullet “definitely struck [Brown] in the back.” During his county grand jury testimony, Witness 101 stated that the bullet likely “grazed” Brown’s arm, acknowledging that since he had made his original statements, he had watched media reports of the privately-commissioned autopsy of Brown. Witness 101 said that he assumed that had Brown not been struck, he would have kept on running. Instead, Brown stopped. Brown put his hands up above his head, in the air, and turned around to face Wilson. In so doing, one arm was lower than the other, though Witness 101 could not say whether it was the left or right arm. According to Witness 101, Brown then stated, “I don’t have a gun” or “I’m unarmed.” Brown started to say it again, but Wilson, while walking toward Brown, fired one volley of at least four shots and Brown fell to his death. Wilson never said a word; he never commanded Brown to stop or freeze. Witness 101 was steadfast that Brown fell to the ground right where he initially stopped and turned around. At most, Brown took a half-step forward, but he did not move toward Wilson. Witness 101 was also steadfast that Brown never put his hand(s) near his waist. As described earlier, the physical evidence establishes that Brown moved forward about 20 feet toward Wilson, and the SLCME medicolegal investigator found Brown with his left hand at his waistband.
Witness 101 also told the county grand jury that he “stood and watched face-to-face as every shot was fired as [Brown]’s body [fell] to the ground,” but was unaware that Wilson shot Brown in the face and head until he saw media reports of the privately-commissioned autopsy. Until then, he thought the only shots were to Brown’s “upper region” and chest.
Witness 101 ran from the scene, saying, “He just killed my friend.” Witness 101 went home and changed his shirt, so he later would not be recognized by the police. By the time he went back to the scene of the shooting, the streets were crowded with people, but, contrary to the dispatch recordings and cellular phone video, there were no police officers on scene. When police officers did arrive, he did not want to speak with them. Instead, Witness 101 went to Brown’s grandmother’s home and told her and other family members what happened. With the encouragement of Brown’s family, Witness 101 went back out onto the street and gave an interview to the media.
During his testimony before the county grand jury, Witness 101 acknowledged that he had discussed the incident with another witness, Witness 118. Witness 101 explained that he was friendly with Witness 118, and noticed her standing on her balcony when he and Brown first encountered Wilson on Canfield Drive. He explained that he was surprised that so many other witnesses came forward because Witness 118 was the only person he saw outside, and she was the only person who saw the incident from the “first shot to the last shot.” However, as detailed
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below, Witness 118 was not out on her balcony for the majority of the incident, and it is unknown at what point she actually witnessed the shootings, if at all.
Witness 101 has a misdemeanor conviction for a crime of dishonesty likely admissible in federal court as impeachment evidence. As described above, material parts of Witness 101’s account are inconsistent with the physical and forensic evidence, internally inconsistent from one part of his account to the next, and inconsistent with other credible witness accounts that are corroborated by physical evidence. It is also unclear whether Witness 101 had the ability to accurately perceive the shootings. Witness 101 likely crouched down next to a white Monte Carlo as Wilson chased Brown. The Monte Carlo was facing west with a view of the passenger side of the SUV. Brown ran in the opposite direction that the Monte Carlo was facing. Witness accounts vary as to whether Witness 101 was ducking for cover on the passenger side of the Monte Carlo with his back to the shooting, or whether he fled the scene prior to the final shots being fired. Both Witness 101’s inconsistencies and his ability to perceive what happened, or lack thereof, make his account vulnerable to effective cross-examination and extensive impeachment. Accordingly, after a thorough review of all of the evidence, federal prosecutors determined material portions of Witness 101’s account lack credibility and therefore determined that his account does not support a prosecution of Darren Wilson.
ii. Witness 123
Witness 123 is a 29-year-old black male who gave two statements. First, he was jointly interviewed by FBI agents and SLCPD detectives. Second, he testified before the county grand jury.
Witness 123 was in the front passenger seat of a white Monte Carlo that was traveling west on Canfield Drive behind Wilson before Wilson stopped his SUV. Witness 133, a black female, was driving the Monte Carlo. Witness 123 first observed Brown and his friend, Witness 101, walking in the street in the opposite direction of the SUV. It seemed to Witness 123 that Brown and Witness 101 failed to comply with a directive from Wilson because the SUV quickly swerved back, and stopped while Brown and Witness 101 were still standing on the yellow line in the middle of the street.
The SUV was then positioned such that Witness 123 and Witness 133 had a view of its passenger side. Therefore, although Witness 123 described a tussle involving Brown at the driver’s window, he could not be more specific. During the tussle, Witness 101 looked startled and ran off. Witness 123 then heard a gunshot and told Witness 133 to back up. He heard a second gunshot just as Brown was running past the driver’s window of the Monte Carlo. Witness 123 ducked after the second shot and, therefore, could not see if Brown was injured. Between four and six seconds later, he looked out the front windshield to see Wilson emerge from the SUV with his gun held low. At about the same time, Witness 101 approached the Monte Carlo’s passenger side door, which Witness 123 had already opened to allow him more room to duck. Witness 101 asked if he could get into their car, but Witness 123 would not permit him to do so, instead instructing him to duck down. Witness 123 then turned his attention to Witness 133, who was shaking. While Witness 123 attempted to calm Witness 133, Witness 101 disappeared and they never saw him again.
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Witness 123 explained to the FBI and the SLCPD that he turned around and watched through the back window as Brown turned around with hands half-way up, shoulder height, and crunched up as though he was about to go to the ground. Witness 123 did not know what prompted Brown to turn around. He then heard a volley of about five shots in addition to the two initial shots, and Brown fell forward to his death, palms face forward and arms tucked under him. Witness 123 told the county grand jury that he saw Brown turn around and hold his hands up. Wilson shot Brown three times and Brown fell to the ground dead. Contrary to the physical evidence, Witness 123 explained that Brown died where he turned around and did not move toward Wilson. After the final shots, Wilson appeared to be looking at his (Wilson’s) arms.
Witness 133 quickly drove around the SUV and away from the scene after the shooting. Witness 123 and Witness 133 subsequently discussed what they had seen with each other while watching media reports.
Witness 123 has no criminal history. Witness 123’s accounts to investigators and to the county grand jury were inconsistent with the physical and forensic evidence, making him vulnerable to effective cross-examination. His focus was split among the driver of the vehicle, Witness 101, and the shooting itself. For those reasons, prosecutors questioned his ability to accurately perceive the incident and could not rely upon his account to support prosecution of Darren Wilson.
iii. Witness 133
Witness 133 is a 33-year-old black female who gave three statements. SLCPD detectives first interviewed Witness 133 within hours of the shooting. She subsequently met with federal agents and prosecutors who questioned her more in-depth. She then testified before the county grand jury.
As previously noted, Witness 133 was driving a white Monte Carlo west on Canfield Drive when she was forced to stop behind Wilson’s SUV. Witness 123 was seated in Witness 133’s front passenger seat. Witness 133 initially saw Brown and Witness 101 walking down the center line of the street in the opposite direction in which she was traveling. Wilson stopped his SUV alongside Brown and Witness 101, and it appeared to Witness 133 that “something had to have been said between the two parties.” However, Witness 133 could not hear anything. Once the SUV stopped, her vantage point was of its passenger side. She was able to see that there was some sort of “tussle” on the driver’s side of the SUV between Wilson, who was seated in the SUV, and Brown, whose feet she could see moving underneath the SUV. The SUV was shaking. Witness 101, who was standing closer to the front of the SUV, was trying to see what was happening.
Witness 133 then heard a gunshot from within the SUV. Witness 133 stated that the “suspect who got shot, backed up, and seemed amazed.” Both Brown and Witness 101 then ran eastbound past her vehicle down Canfield Drive. The gunshot “terrified” Witness 133, and when she saw Wilson get out of the SUV, she immediately ducked down for cover. It was then that Witness 101 appeared at her passenger side door, asking if he could get in the car, saying “Can
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you get me away from here? It’s crazy.” Witness 133 refused to allow Witness 101 into her car, instead telling him to duck. Witness 123, Witness 133, and Witness 101 all ducked for cover together. During her interview with federal authorities, Witness 133 added that she likely “blacked out” while all of this was happening.
Shortly thereafter, Witness 133 looked in her rearview mirror, and saw Brown’s face, indicating to her that Brown had turned to face Wilson. She described hearing two or three shots and then Brown fell to the ground. At some point, Witness 101 disappeared, but having been focused on Brown, she did not know where he went or when he left. Wanting to leave quickly, Witness 133 drove on the grass and around the SUV to get out of the area.
During both her interview with SLCPD and her follow-up interview with federal agents and prosecutors, Witness 133 was repeatedly asked if there was anything else that she saw or anything she thought investigators would need to know. In both instances, Witness 133 denied knowing any more information, telling federal authorities that she had given “everything [she’s] got.” However, she expressed sorrow as the mother of a teenaged son.
Despite her repeated assurances that she saw nothing else, Witness 133 testified before the county grand jury that when she looked in the rearview mirror, Brown had his hands up before he fell to his death. When questioned by the county prosecutor about providing this new information, Witness 133 acknowledged that the transcripts from her prior statements were correct, and that she told SLCPD detectives, FBI agents and federal prosecutors everything she could think of that was important. Witness 133 never offered an explanation as to why she did not previously disclose that Brown’s hands were up. Witness 133 also acknowledged that she has been watching the news and “hands up” had become the “mantra” of the protesters.
Witness 133 has no criminal history. Witness 133’s repeated omission of a material detail that goes directly to whether Wilson used unreasonable force, coupled with the fact that she told federal authorities that she “blacked out” before later testifying that she saw Brown’s hands up, would subject her to effective cross-examination if called as a prosecution witness. It calls into question whether she actually saw Brown’s hands at all, had “blacked out,” or had been distracted by Witness 101. Accordingly, federal prosecutors determined material portions of her account to be unreliable, and therefore it does not support a prosecution of Darren Wilson.
iv. Witness 119
Witness 119 is a 15-year-old black male. He initially told SLCPD detectives that he witnessed the shooting. However, he later recanted, telling federal agents and prosecutors that he lied to SLCPD detectives because he just wanted to be involved in the investigation. Witness 119 reiterated the same thing to county prosecutors and did not testify before the county grand jury.
Witness 119 initially spoke to SLCPD detectives within hours of the shooting, while standing on Canfield Drive. In part because of the chaos around him during the interview, and in larger part because he was lying, much of Witness 119’s initial account did not make sense. Witness 119 seemed to claim that Wilson shot Brown in the side from out of the window of the
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SUV, possibly while he was still driving. Wilson then chased after Brown, and ultimately shot him to death in the head while Brown had his hands in the air.
Federal agents and prosecutors sought to follow up with Witness 119 to clarify his account. Witness 119 readily admitted that he never saw the shooting, but was sitting near a flowerbed playing video games on his phone when he heard gunshots. Witness 119 could not see the SUV from his vantage point. He and his brother waited until the gunshots stopped before going to the scene because they did not want to get hit by a stray bullet. By the time they arrived on scene, Brown was dead. Witness 119 claimed that he told the police that he was a witness because he was traumatized and because he “wanted to be a part of it.”
Because Witness 119 admitted that he gave a false account, federal prosecutors did not consider his account in the prosecutive decision.
v. Witness 125
Witness 125 is a 23-year-old black female. She initially told law enforcement that she witnessed the shooting, but later recanted, claiming that she wanted to be involved from the outset and therefore lied to investigators.
SLCPD detectives briefly interviewed Witness 125 during their initial canvass after the shooting. Witness 125 claimed that she was asleep for the first two gunshots. Her boyfriend, Witness 131, told her to get up and go to the window. Witness 125 then gave an internally inconsistent account, first saying that Brown’s arms were by his waist, followed by his hands going up. When asked for clarification, she said the same thing in reverse, explaining that it all occurred while Brown was kneeling.
In an effort to reconcile this inconsistency and help inform the prosecutive decision, federal prosecutors sought to meet with Witness 125. Witness 125 refused to meet with federal prosecutors but did meet with FBI agents. She reiterated that she was asleep during the first few shots, but then went to her window where she witnessed Brown standing with his hands up in surrender. Although she could not see who was shooting Brown due to a tree blocking her line of sight, Witness 125 explained that she witnessed two volleys of shots, one which caused Brown to grab his torso with his left hand and a second volley causing his head to snap back before he fell to the ground. Witness 125 did not see Brown move from his position. Despite saying otherwise in her recorded statement to the SLCPD, she denied telling FBI agents that she originally told SLCPD detectives that Brown was kneeling prior to his death.
When Witness 125 appeared at the St. Louis County Prosecutor’s Office to testify before the county grand jury, she was accompanied by an attorney. Prior to her testimony, Witness 125 told the county prosecutors that she lied to the FBI and to SLCPD detectives. Witness 125 was then given immunity from federal prosecution for making material false statements to federal agents so long as she testified truthfully in the grand jury. She testified that she did not, in fact, witness any part of the incident, but claimed she did so because she wanted to be “part of something.” She claimed that a friend in the community told her to tell the SLCPD and the FBI what her boyfriend saw, but to claim it as her own.
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Witness 125 has no criminal history. Because Witness 125 admitted that she gave false accounts, federal prosecutors did not consider her accounts in the prosecutive decision.
vi. Witness 131
Witness 131 is a 22-year-old black male. As previously mentioned, Witness 131 is the fiancé of Witness 125, who first told SLCPD detectives and then FBI agents that she saw Wilson shoot Brown while he had his hands in the air, and then admitted to county prosecutors that she lied to law enforcement and did not, in fact, see anything. Witness 131 gave two statements, first to FBI agents and then he testified before the county grand jury.
Witness 131 told the FBI that he was in his apartment when he heard three gunshots, prompting him to call Witness 125 to come look out their living room window. However, he changed his account when he testified before the county grand jury, claiming that he only called to his fiancée once the shooting had stopped.
Witness 131 stated that he initially did not see Wilson, but saw only Brown, who was taking a few steps forward. Witness 131 testified before the county grand jury that his view was somewhat obstructed, but he also saw Witness 101 run across the yard. Witness 131 then heard about five more shots, and watched as Brown grabbed his torso with his left hand, while holding his right hand in the air, in front him at a 45 degree angle. Witness 131 then heard another volley of shots and Brown’s arms dropped. Brown fell to his knees and collapsed face down in the street. Witness 131 explained to the FBI that once Brown stopped moving forward, the shooting stopped. It was then that Witness 131 noticed a police officer approach Brown just as other officers arrived on scene.
Despite Witness 131 telling the FBI that Brown was shot only when he moved forward, he testified to the contrary in front of the county grand jury. There, he testified that Brown stood still as he was shot to death and denied that Brown moved forward at all. When county prosecutors confronted Witness 131 with his inconsistency, he denied that he said anything different to the FBI.
Witness 131 has no criminal history. Witness 131’s accounts are inconsistent with each other, and his most recent version is inconsistent with the physical and forensic evidence. He also claimed that his fiancée was present for something she admitted she did not witness. Accordingly, based on a thorough review of all of the evidence, federal prosecutors determined his account not to be credible, and it therefore does not support a prosecution of Darren Wilson.
vii. Witness 112
Witness 112 is a 62-year-old black male who was with his brother, Witness 110, and sister-in-law, Witness 111, when he witnessed the shooting. As described above, they witnessed the shooting from the second floor balcony located opposite and off to the right of the minivan occupied by Witness 104, Witness 105, Witness 106, and Witness 107. Their view was of the
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passenger side of the SUV, followed by the right profile of Brown as he ran away from Wilson, and then the left profile of Brown as he turned around and moved toward Wilson.
Witness 112 gave three investigative statements, and he also spoke to the print media. He spoke first with SLCPD detectives. He then met with federal prosecutors and agents, and subsequently testified before the county grand jury.
Witness 112 agreed to meet with SLCPD detectives only because he spoke to his pastor, and realized that what he witnessed was “weighing on [him].” Witness 112 explained that Witness 101 could not have seen what he is claiming to have seen in his media interviews. According to Witness 112, he was sitting by his bedroom window when he saw Brown and Witness 101 walking in the center of the street. Witness 112 knew Brown from the neighborhood and always found him to be respectful.
Witness 112 saw Wilson’s SUV pass Brown and Witness 101, and then back up. Witness 112 then went out to his balcony to get a better view. Once there, he saw a “tussling” at the SUV, and acknowledged that he did not know whether Wilson grabbed Brown or vice versa. However, Witness 112 was adamant that, contrary to what he kept hearing from people in his neighborhood, at least one of Brown’s arms was inside the SUV. Wilson fired a shot from within the SUV, likely in an effort to get Brown off of him because Brown was so big. After that initial shot, Brown looked startled and took off running. Witness 101 took off running as well, and did not reappear until much later, once Brown’s body was covered.
Witness 112 explained that it appeared that Brown stopped running because either the pain or shock hit him. Brown turned around, and looked down, as though checking himself for injury. In so doing, Witness 112 explained that Brown raised his arms partly, palms up, clarifying that he “didn’t have his hands all the way up.” Brown then moved his arms out at a 35 to 45 degree angle, as if to say, “What?” It was then that Wilson trained his gun on Brown, and as Brown moved forward, Wilson repeatedly yelled, “Stop!” When Brown failed to stop, Wilson fired shots. Brown’s arms went limp at his sides, but he kept moving toward Wilson, though Witness 112 characterized it as “not in a menacing way.” Witness 112 explained that at no time did Brown say a word. Instead, Witness 112 yelled out from his balcony for Brown to stop, but Brown kept slowly advancing, bent forward, and Wilson kept shooting.
When Witness 112 subsequently met with federal agents and prosecutors, he gave a similar account, except that he steadfastly claimed that when Brown turned around in the roadway, he held his arms up in surrender, at ninety degree angles with his palms facing out. When asked about his previous description, Witness 112 became agitated and angry, and refused to listen to a recording of his previous statement. He was unable to explain the difference in his accounts, and why his statement had changed. Witness 112 similarly described that Brown held his hands up in surrender when he testified before the county grand jury.
Subsequent to his meeting with federal authorities and his appearance before the county grand jury, Witness 112 gave an “anonymous” interview to the local print media. Although Witness 112 never identified himself, based on the account given that was almost verbatim to his initial SLCPD interview and the proximity in time to his county grand jury testimony, federal
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and county prosecutors and investigators recognized that it was Witness 112. In that media interview, Witness 112 reverted to his initial version that he told SLCPD detectives, explaining that Brown did not have his hands up in surrender, but rather partly raised his arms, palms up, checking for injury. This stood in stark contrast to what he told the FBI and federal prosecutors, and to his testimony in the county grand jury.
Witness 112 has a felony conviction for stealing from 18 years ago that likely would be inadmissible in federal court as impeachment evidence. Witness 112 made it clear in all of his statements that he believes that Wilson should not have shot and killed Brown, stating that it was “overkill,” without offering more of an explanation. Witness 112’s accounts are inconsistent as to whether Brown held his hands up in surrender, and his most recent account is that Brown’s hands were not up in surrender. Because federal prosecutors cannot discern the truth among Witness 112’s versions, and his most recent account does not inculpate Wilson, federal prosecutors cannot rely upon it to support a prosecution of Darren Wilson.
viii. Witness 135
Witness 135 is a 20-year-old black female. She was walking on Canfield Drive at the time of the initial interaction between Brown and Wilson. She gave three statements. The FBI first interviewed Witness 135 during their canvass on August 16, 2014, and she subsequently met with federal prosecutors. She then testified before the county grand jury.
According to Witness 135, as she was standing on the south side of the street, she saw Wilson’s SUV back up and bump up against Brown and his friend. Brown then “charged over” to the driver’s side of the SUV and put his arms inside the driver’s window. She was unable to see what transpired inside the vehicle because the width of Brown’s back obstructed her view. She did, however, explain that Brown’s arms were moving aggressively and his head, shoulders, and top half of his body were in the window.
Witness 135 stated that this interaction lasted about 15 seconds during which time she saw a gun fall to the ground and then heard a gunshot. She moved to a nearby tree where she initially waited, and then continued her walk home. Brown ran anywhere from five to 10 steps, and then turned around to face Wilson who had emerged from the SUV seconds after Brown took off running. Witness 135 explained that she was both walking away and scanning the street as this was happening, so she did not see the entire incident. She recalled that as Brown turned around, he put his hands up with his arms, “scrunched up,” pulled tight against his body, palms out at about shoulder height. According to Witness 135, Brown was hunched forward, though he took a few steps backward, and was shot about five times before he fell to his death. According to Witness 135, there was only this one additional volley of shots after the initial shot, Brown never moved forward, and Wilson never shot Brown as he was running away.
Witness 135 readily acknowledged to federal prosecutors that she has poor vision, and was not wearing her contact lenses on the date of the shooting. She was able to see shapes and figures, but could not see details or facial expressions from where she stood once Brown ran from the SUV. Because the physical evidence proves that Brown moved forward before he fell to his death, federal prosecutors and agents asked Witness 135 if it was possible that Brown
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moved forward, but she did not see it. Witness 135 responded that it was possible, not only because of her vision problems but because she was not watching Brown the entire time. Instead, she was scanning the block, and was worried for her own safety due to the ringing of gunshots.
Witness 135 explained to federal prosecutors that Brown’s friend ran off as soon as the first shot was fired and she never saw him again. However, she described a similarly built black male with dreadlocks who was later running around the Canfield apartments, saying something to the effect of, “The police shot my friend and his hands were up.” Witness 135 explained that quickly became the narrative on the street, and to her frustration, people used it both as an excuse to riot and to create a “block party” atmosphere.
During her county grand jury testimony, Witness 135 characterized Wilson’s actions as “murder,” an opinion that would be inadmissible in federal court. When county prosecutors pressed her for an explanation, she stated that she sees it that way because Wilson should have used a taser, night stick, or similar weapon. Witness 135 also stated that when she saw the gun drop by the SUV, she assumed it belonged to Brown, acknowledging that it was not unreasonable for Wilson to think that Brown had a weapon. Witness 135 also testified about her own negative experience with the FPD, when an officer arrested her and “basically beat [her] up.” That officer was not Darren Wilson, nor did she ever have prior interactions with Wilson.
Witness 135 has no criminal history. As detailed above, Witness 135’s initial account was inconsistent with the forensic and physical evidence and inconsistent with other credible witness accounts. She admittedly was unsure of what she saw, both because she was distracted and because she has poor vision. Because of her admitted inconsistencies along with her questionable ability to have accurately perceived what happened, federal prosecutors determined material parts of this witness’s account to lack reliability and therefore, her account does not support a prosecution of Darren Wilson
ix. Witness 124
Witness 124 is a 31-year-old black female. As previously noted, Witness 124 is the wife of Witness 115. In addition to testifying before the county grand jury, Witness 124 gave two interviews to law enforcement, first to SLCPD detectives and then to FBI agents during their canvass one week after the shooting.
In her initial interview to SLCPD detectives, Witness 124 explained that she was on the phone and eating when her husband, Witness 115, called to her, “Baby, Look out the window. They’re shooting.” She went to the window and saw Brown running from Wilson, who was walking and steadily shooting at Brown from behind. Brown then disappeared from her sight, making her think that Brown got away. However, Brown then reappeared and came back toward Wilson. Witness 124 then joined Witness 115 on the balcony with their three children. Once on the balcony, Witness 124 saw Wilson shoot Brown in the chest area, firing two shots, followed by three shots until Brown tipped over and fell to the pavement. She further told the SLCPD detective that Brown had nothing in his hands, and Wilson did not go near Brown’s body. At no
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point did Witness 124 describe Brown’s arm across his torso as her husband described. At no point did she describe Brown’s hands up in surrender.
However, during her interview with the FBI, Witness 124 described that she first saw Wilson’s SUV when Wilson tried to run over Brown and Witness 101. This directly contradicts her prior statement that Witness 115 called to her to look out the window after the first shots were fired. During her FBI interview, Witness 124 also added that she saw Brown turn around and put his hands up. This also directly contradicts her initial statement in which she claimed that Brown disappeared from sight and that she did not see him until he reappeared in her line of sight. Witness 124 also added that, contrary to virtually every other witness account, Wilson walked toward Brown and shot him to death.
Witness 124 has no criminal history. In an effort to reconcile the apparent inconsistencies in Witness 124’s accounts and determine what she actually witnessed as opposed to what she may have heard from others, federal prosecutors sought to meet with her. However, Witness 124 failed to appear for a scheduled meeting and refused to reschedule at any time or place of her convenience. Therefore, federal prosecutors did not have the opportunity to assess her credibility and determine which parts of her account, if any, were accurate. Because the substance of her two investigative accounts stood in stark contrast to each other, without further explanation, federal prosecutors determined her accounts not to be credible and therefore did not consider them in its prosecutive decision.
x. Witness 127
Witness 127 is a 27-year-old black female who gave three investigative statements, including testifying before the county grand jury. SLCPD detectives initially interviewed Witness 127 within two hours of the shooting. She subsequently appeared in the media several times. Federal agents and prosecutors interviewed Witness 127, in the presence of her lawyer, because parts of her account were inconsistent with the physical evidence.
According to Witness 127, she was driving east on Canfield Drive, traveling in the opposite direction of Wilson’s SUV. and heard tires screeching as she rounded a curve. When she pulled up to where the SUV was stopped, Witness 127 saw Brown “rassling” at the driver’s window. Brown’s head was bent at the window, with his palms on the outside of the door. Witness 127 said that it looked like Brown was either pushing off of the door or pulling away and that someone was pulling him into the car, in a “tug of war” manner. However, she did not see anyone or anything pulling Brown. At the same time this was happening, Witness 127 was looking at her mobile phone, trying to no avail to record what was transpiring “because it didn’t look right.” Witness 127 then heard a gunshot, but did not see blood or injury. She said that Brown broke free, indicating that it looked like Brown’s right shirtsleeve was being pulled, though she could not see anything pulling it.
Upon hearing that gunshot, Witness 127 drove around the SUV and turned left into a nearby parking lot. She parked her car and got out. By that time, she saw Brown running and heard shots being fired. Witness 127 did not actually see Wilson exit the SUV, but she saw him chase after Brown. Witness 127 described volleys of gunshots without specificity. She
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explained that once she was out of her car, she began walking on the sidewalk as the shooting continued. She saw Brown’s body make a jerking movement such that his hands started going up involuntarily. In one quick motion, Brown turned around with his hands up at right angles at his shoulders. Wilson then shot him, and Brown fell to his death where he stood. Witness 127 did not see injury to either of Brown’s hands when his hands were up. Witness 127 was adamant that, contrary to DNA evidence with regard to the blood east of Brown’s body, Brown never moved toward Wilson. She insisted that he fell to his death right where he turned around. She was equally adamant that Brown’s hands remained outside the SUV during the initial interaction between Wilson and Brown, despite forensic and physical evidence to the contrary. When questioned by federal prosecutors and then by county prosecutors during her county grand jury testimony, she disallowed any possibility that perhaps her perception was compromised because she was using her phone, driving, and parking, among other reasons. Additionally, Witness 127 appeared in the media with her friend, Witness 118, allowing for the possibility that their accounts became conflated .
Witness 127 has no criminal history. Although Witness 127’s statements are materially consistent with each other, significant portions are contrary to the forensic and physical evidence and inconsistent with credible witness accounts. Witness 127 was unable to give reasonable explanations as to why the physical evidence might be inconsistent with what she remembers, and therefore prosecutors were left to conclude that she inaccurately perceived material portions of the shootings either because of the stress of incidents or because she was distracted. Accordingly, after a thorough review of the evidence, federal prosecutors determined material portions of this witness’s account not reliable and therefore cannot be used to support prosecution of Darren Wilson.
xi. Witness 118
Witness 118 is a 19-year-old black female who lives in the Canfield Green neighborhood and knew Brown through a mutual friend, Witness 120. Witness 118 also knew Witness 101, with whom she became friendly when she moved into the neighborhood. Prior to the shootings, Witness 118 and Witness 101 socialized almost weekly. Witness 118 denied speaking with Witness 101 since the shootings, contrary to what Witness 101 said during his testimony before the county grand jury. However, Witness 118 acknowledged speaking to Witness 120 about the shooting. As detailed later in this memorandum, Witness 120 was admittedly untruthful about what he claimed to have witnessed.
Witness 118 gave three investigative statements, and testified before the county grand jury. A SLCPD detective initially interviewed Witness 118 approximately two hours after the shooting. She subsequently appeared in the media several times. During those media interviews, Witness 118 added details that she did not report to local law enforcement, claiming in the news that she saw the “whole scenario play out.” In an effort to evaluate the inconsistencies between her statements to law enforcement and her statements to the media as well as inconsistencies with physical evidence, federal agents and prosecutors interviewed Witness 118 in the presence of her lawyer.
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During her initial SLCPD interview, Witness 118 stated that just before the shooting, she was in her apartment when she heard the screech of tires and thought someone might be hurt. She then heard three gunshots and went to look out her bedroom window. Witness 118 denied to the SLCPD detective that she witnessed any “tussle” at the side of the SUV. In fact, her view was of the passenger side of the SUV, which would have limited her ability to see a struggle at the driver’s side even if she had looked out the window in time.
Witness 118 told the SLCPD detective that she then saw Wilson get out of the SUV and run in a hurry. She did not see anyone else at that time. She left her bedroom window to go to her patio door when she heard no less than four more shots. Those shots occurred about 30 seconds after the first three shots. Witness 118 thought someone was trying to shoot Wilson. She did not see Brown until she got to her patio door, when she peeked through the blinds to see him running. While looking through her glass door, she was distracted for about 10 to 30 seconds by Witness 101 ducking behind a black Monte Carlo and trying to hide. Witness 101 was creeping westward, toward the front of the Monte Carlo, with his back to Wilson and Brown as they ran east on Canfield Drive.
Witness 118 told the SLCPD detective that she then looked back toward Brown as he turned around, put his hands in the air, and got shot two times. Brown fell to the ground face down, with his arms at 90 degree angles on either side of his head, contrary to what the crime scene photos depict and the SLCME medicolegal investigator noted, i.e., Brown’s left hand was at his waistband and his right hand was down at his side.
At the conclusion of the interview with the SLCPD, Witness 118 assured the detective that what she reported was her best recollection of the incident and that she was not leaving anything out. Nonetheless, Witness 118’s accounts to the media and to federal prosecutors and agents were different from her initial statement to the SLCPD, even though her grand jury testimony was ultimately more consistent with her initial SLCPD account.
Witness 118 claimed to the media that she “saw” screeching tires as the SUV swerved at Brown and Witness 101. She further claimed that she watched Brown as he was reaching, pulling, and “hassling” through the window of the SUV, in what appeared to be “arm wrestling.” Witness 118 told the media that Wilson was pulling Brown into the SUV while Brown was trying to flee. She claimed to have seen the first gunshots hit Brown as he pulled away and fled. She also claimed that she saw a bullet strike a nearby building, but acknowledged that she inferred this because she saw SLCPD detectives attempting to remove one from a building wall.
Witness 118 added to her media narrative that Wilson shot Brown in the back from three feet away and that Brown never moved back towards Wilson. Physical evidence is inconsistent with both of those added details. Also, contrary to her initial account, Witness 118 told federal agents and prosecutors that Brown’s arms were at his sides and his hands were around his hips when he came to rest on the ground.
When federal prosecutors and agents challenged the inconsistencies in her accounts, Witness 118 conceded that she likely assumed facts that she did not witness herself based on talking with other residents in the Canfield Green complex and watching the news, but was not
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specific about which facts. Witness 118 also added that she did not have a lawyer when she was first interviewed by the SLCPD, though there was nothing to indicate that interview was custodial or coercive and Witness 118 expressed no apprehension or hesitation when speaking with the SLCPD.
Witness 118 has no criminal history. Witness 118’s accounts are riddled with internal inconsistencies, inconsistencies with the physical and forensic evidence, and inconsistencies with credible witness accounts. Her attention was admittedly diverted away from the shooting when she watched Witness 101 ducking for cover and she acknowledged that her account was also based on assumption and media coverage. Accordingly, after a thorough review of the evidence, federal prosecutors determined the various versions of this witness’s account to lack credibility and therefore it does not support a prosecution of Darren Wilson.
xii. Witness 122
Witness 122 is a 46-year-old white male. He was laying drain pipe on Canfield Drive with Witness 130 on the morning of the shooting. Witness 122 gave six statements, including testimony before the county grand jury. SLCPD detectives and an FBI agent twice jointly interviewed him, and SLCPD detectives once independently interviewed him. Witness 122 and Witness 130 authored one-page written statements on advice of a former boss. Witness 122 and Witness 130 claimed that they did not discuss what they witnessed, though Witness 130 admitted that they read each other’s statements after they were written. Witness 122 gave a media interview on the condition of anonymity. As noted throughout this memorandum, federal prosecutors interviewed many potential witnesses in an effort to assess credibility and reconcile internal inconsistencies and inconsistencies with physical evidence, as is necessary to make a fair prosecutive decision. Witness 122 agreed to meet with federal prosecutors only after assurances that he would not be held against his will at the FBI office, claiming that he had heard of instances where individuals go to the FBI office and do not emerge for days.
According to Witness 122, Witness 122 and Witness 130 (collectively, “the contractors”) twice encountered Brown during the morning of the shootings, first when Brown was alone and then when Brown was with Witness 101. Witness 122 and Brown did most of the talking, and the topics included God and smoking marijuana. About 20 minutes after their last conversation with Brown, the contractors heard a loud bang. Witness 122 saw Brown running, staggering, or falling forward. Contrary to the autopsy results, Witness 122 described Brown being shot in the back and “knew he had gotten hit.” In fact, both contractors claimed to have witnessed bullets go through Brown and exit his back, as evidenced by his shirt “popping back” and “stuff coming through.” However, in his interview with federal prosecutors, Witness 122 explained that he thought that Brown was shot in the back and stumbled until he saw media reports about the autopsy commissioned by Brown’s family. After learning about that autopsy, he realized that Brown was not shot in the back and admittedly changed his account.
Witness 122 also claimed that Brown put his right hand to the ground to regain his balance when he was hit and as he turned around. According to both contractors, Brown then turned around with his hands up and repeatedly screamed “Okay!” as many as eight times, an exclamation heard by no other witness. When Witness 122 demonstrated the position of
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Brown’s hands for federal prosecutors and agents, he wavered from a position of surrender to one indicative of a person trying to maintain balance.
Contrary to the autopsy results establishing that the shot to the top of Brown’s head would have incapacitated Brown almost immediately, both contractors insisted that Brown continued to move toward Wilson as far as 20, 25, or even 30 feet after the final shots. Witness 122 described Brown as walking “dead on his feet, and then he just fell forward.” Later, both contractors admitted that they did not actually see Brown fall to the ground, because their view was obstructed by the corner of a building.
Witness 122 insisted that there were three officers present during the shootings, demonstrating the inaccuracy of his perception. Witness 122 described three uniformed police officers engaged with Brown in a “triangle formation” at the time of the shootings. Witness 122 described a heavyset, older officer, and two “skinny, little people,” one of whom was possibly a female and the other with dark hair and a moustache, who was a head shorter than the heavyset officer. Witness 122 described the shooter as the heavyset officer. Witness 122 explained that the heavset officer shot until he ran out of bullets, and then the shorter officer with the moustache trained his gun on Brown, but did not shoot. These statements cannot be reconciled with the fact that Wilson was the only officer present when Brown was shot and that Wilson has a slim build.
Witness 122 also explained that he did not see Witness 101 at all during the shooting itself, and did not understand how Witness 101 could claim to see everything if he was hiding behind a car. Witness 122 also said that contrary to what was reported in the media, Brown did not say, “Don’t shoot.”
The contractors, apparently unwittingly, were captured on a widely circulated video taken several minutes after the shooting while responding officers were securing the scene with crime scene tape. That video depicts another individual yelling, “He wasn’t no threat at all,” as Witness 122 put his hands up and stated, “He had his fucking hands in the air.” As detailed below, two other witnesses, Witness 128 and Witness 137, each took credit for making the statement, “He wasn’t no threat at all.”24 Both of those witnesses have since acknowledged to federal agents and prosecutors that they did not, in fact, know whether Brown was a threat.
According to the Brown family, Witness 122 called them after the shooting and told them that he had seen Wilson shoot Brown execution-style as Brown was on his knees holding his hands in the air. However, Witness 122 denied making any statements about the nature of the shooting to the Brown family. As mentioned, despite his earlier statements, Witness 122 recanted the claim that he actually saw Brown fall dead to the ground.
Witness 122 has no criminal history. As detailed above, material portions of Witness 122’s accounts are irreconcilable with the physical and forensic evidence. These accounts are also inconsistent with each other and inconsistent with credible witness accounts. Accordingly, after a thorough review of all of the evidence, federal prosecutors determined this witness’s accounts not to be credible and therefore do not support a prosecution of Darren Wilson.
24 The person who recorded this video claimed that yet another person, “Chris,” made that statement.
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xiii. Witness 130
Witness 130 is a 26–year-old white male. As previously noted, he was laying drain pipe on Canfield Drive with Witness 122, on the morning of the shooting. Witness 130 gave five statements, including testimony before the county grand jury. SLCPD detectives and an FBI agent twice jointly interviewed him, and SLCPD detectives once independently interviewed him. Like Witness 122, Witness 130 authored a one-page written statement on advice of a former boss. Witness 122 and Witness 130 claimed that they did not discuss what they witnessed, though Witness 130 admitted that they read each other’s statements after they were written. Like Witness 122, Witness 130 gave a media interview on the condition of anonymity.
As noted, Witness 122 and Witness 130 twice encountered Brown during the morning of the shootings, first when Brown was alone and then when Brown was with Witness 101. Witness 122 and Brown did most of the talking, and Witness 130 admitted that at times, Brown seemed paranoid and aggressive, clenching his fists and causing Witness 130 some concern. Witness 130 thought Brown “was not in his right mind,” based upon how paranoid he seemed.
About 20 minutes after their last conversation with Brown, Witness 130 heard a loud bang. Witness 130 stepped around the corner of an apartment building that was obstructing his view, and saw Brown “fast walk[ing]” east on Canfield Drive. According to both contractors, Brown then turned around with his hands up and repeatedly screamed “Okay!” as many as eight times, an exclamation heard by no other witness According to Witness 130, after Brown turned around, he continued to stumble or otherwise approach Wilson, although he did not know whether Brown was speeding up to come after Wilson, or whether his momentum was carrying him forward. Wilson then fired at least seven shots, but as Witness 130 told the grand jury, Wilson only fired when Brown moved forward. Witness 130 described Wilson “unloading his clip” into Brown, although Witness 130 acknowledged that Brown put his arms down after the third shot.
Witness 130 explained that Wilson backed up as Brown approached him. Contrary to the autopsy results establishing that the shot to the top of Brown’s head would have incapacitated Brown almost immediately, like Witness 122, Witness 130 insisted that Brown continued to move toward Wilson as far as 20, 25, or even 30 feet after the final shots. Contrary to his initial account, Witness 130 admitted that he did not actually see Brown fall to the ground because his view was obstructed by the corner of a building.
Witness 130 has no criminal history. Federal prosecutors attempted to meet with Witness 130 to evaluate inconsistencies in his various statements. Witness 130 refused to meet with federal prosecutors, making reliance on his account problematic because his statements are inconsistent with each other, inconsistent with the physical and forensic evidence, and inconsistent with credible witness accounts. Therefore, federal prosecutors could not rely on Witness 130’s account to support a prosecution of Darren Wilson.
xiv. Witness 142
Witness 142 is a 48-year-old black male. Witness 142 briefly spoke to SLCPD detectives within hours of the shooting incident and denied that he witnessed the shooting. However, the
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SLCPD and the FBI then followed up with Witness 142 after SLCPD detectives learned that Witness 142 called in to an Atlanta-based podcast on August 11, 2014, where he described the shootings. Witness 142 then testified before the county grand jury.
During the podcast, Witness 142 explained that he was sitting on his front patio when he heard the first gunshot. He then moved closer to get a better look at what he termed a “scuffle,” and saw “the brother (referring to Brown) leaning over into the window.” Witness 142 further described Brown’s “upper body in the windshield.” The podcast announcer then asked if what “the officer is saying is true,” relative to what happened at the SUV. Witness 142 responded, “yes.” Witness 142 explained that Brown then took off running and Wilson chased after him. Witness 142 thought that Wilson shot at Brown while Brown was running away. Brown then turned around and came back toward Wilson. Wilson “unloaded on him” and Brown fell to the ground.
The podcast announcer then asked if Brown’s hands were up. Witness 142 responded, “Well, I don’t know. I didn’t see that.” He went on to explain that “the crowd” was saying that Brown’s hands were up, and that he was ducking to avoid getting hit by gunfire. The announcer later asked, “If you had to say from your opinion, was it justified?” Witness 142 paused and then said, “yes,” referencing the scuffle in the SUV. However, he then stated that Wilson should not have shot at Brown while Brown was “fleeing the scene,” an opinion that would be inadmissible in federal court and a misstatement of applicable federal law.
SLCPD detectives recognized Witness 142’s voice on the podcast from their initial canvass of Canfield Drive, when Witness 142 denied seeing anything. Therefore, an SLCPD detective and an FBI agent interviewed Witness 142 again in an effort to determine what he actually saw. However, during that interview, Witness 142 again changed his account from what he stated on the podcast. Witness 142 told the SLCPD detective and the FBI agent that he was inside his apartment and heard one gunshot. He looked out his patio sliding glass door and saw the driver’s side of a police SUV, where Brown was “tussling” with Wilson, who was inside the SUV. Witness 142 stated that Wilson was tugging on Brown’s shirt collar. Even though Brown’s back was to him, Witness 142 saw Brown’s hands against the SUV and Wilson’s hands grabbing Brown’s shirt. He denied seeing any part of Brown’s body inside the SUV. Brown then pushed away from the SUV and “sprinted” east on Canfield Drive. Wilson, with his gun on his hip, immediately got out of the SUV and chased Brown. After that, Witness 142 does not know what happened, claiming that a concrete barrier obstructed his view.
Witness 142 admitted that on the podcast, he stated that Brown’s head was inside the SUV, but claimed that he lied, though he could offer no explanation for doing so. He recalled saying that Wilson shot Brown as Brown was running away, though he admitted to law enforcement that he did not see that happen. Witness 142 clarified that he thought Wilson was shooting at Brown because everything happened in a matter of seconds. He also acknowledged that he told the podcast announcer that he saw Brown stop, turn around, and come back at Wilson. However, he told the SLCPD detective and the FBI agent that he only assumed that Brown did those things, based on Brown’s body facing west in the street. Witness 142 told law enforcement that he stayed outside in the street for hours after the shooting, hearing people say that Brown had his hands up. However, he did not see Brown with his hands up. Witness 142
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stood by his initial statement that the shooting was justified, though he stated that he did not actually see what happened. He further told law enforcement that he originally lied to SLCPD detectives on the day of the shooting, when he claimed to not have seen anything. Witness 142 explained that he was afraid and did not want to get involved.
Witness 142 has no criminal history. Witness 142 changed his account and could offer no explanation as to why he did so, and his most recent account is inconsistent with credible witness accounts and inconsistent with forensic and physical evidence. Accordingly, federal prosecutors determined that they could not credit either one of his accounts. Regardless, his accounts do not inculpate Darren Wilson and therefore do not support a prosecution.
xv. Witness 138
Witness 138 is a 22-year-old black male. The SLCPD first interviewed Witness 138 about five hours after the shooting. The interview was very brief and federal prosecutors and agents sought to interview him to obtain more detailed information. Witness 138 repeatedly ignored attempts by federal authorities to meet with him when he lived in St. Louis. He then moved out of state. Again, Witness 138 failed to respond to messages left by county and federal authorities, and refused to appear before the county grand jury. Finally, an FBI agent and federal prosecutor tracked down Witness 138 outside of his mother’s house in Kentucky. Witness 138’s account to federal authorites stood in stark contrast to what he initially told the SLCPD.
Witness 138 told SLCPD that on the day of the shooting, he was watching television in his apartment when he heard one gunshot, causing him to run outside. Brown had kicked off his flip flops and started running away from Wilson, who had emerged from his SUV with his gun drawn. Wilson ran east after Brown, past Witness 101 who was by a white Monte Carlo. Wilson shot Brown as he was running away. Brown then turned around, “threw his hands up,” and said something. Initially, Witness 138 stated that he could not hear what Brown said. Then he explained that Brown said something with the word “shoot” in it. By the end of the interview, Witness 138 stated that Brown said, “Please don’t shoot.” Brown then fell to his knees, and Wilson shot him again. Other police officers arrived on the scene, and Wilson got into a different police vehicle than the one in which he arrived, and left the scene.
Witness 138 told federal authorities that Brown and Witness 101 came to his house the morning of the shooting, prior to their walk to Ferguson Market. They made plans to smoke marijuana later in the day and Brown and Witness 101 told Witness 138 that they were going to get cigarillos and would return. Thereafter, Witness 120 arrived at Witness 138’s house. While Witness 138 and Witness 120 were talking in the doorway, Witness 138 heard two gunshots. He ran toward the gunshots, while Witness 120 ran in a different direction. Witness 138 saw Wilson “walk quickly” toward Brown. Unlike what he told the SLCPD detective, Witness 138 said that while going after Brown, Wilson was yelling “stop” or “freeze.” Also contrary to his initial account, Witness 138 said that he did not hear Brown say anything. He saw Brown stop and put his hands up, shoulder height at 90 degree angles. Because he heard gunfire, Witness 138 ducked for cover, face-first in the dirt where two white contractors were working. Witness 138 remained in that position until the incident was over, and he looked up and saw Brown dead on the ground.
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Witness 138 told federal authorities that Brown fell to the ground in the exact place where he first turned around and did not move forward toward Wilson. Because this is inconsistent with the physical evidence and other credible accounts, federal authorities asked Witness 138 if it was possible that Brown moved toward Wilson. Witness 138 explained that Brown could have moved forward, could have put his arms down, and in fact, he did not know what Brown did for the majority of the shooting because he was face-first in the dirt. He did not look up until Brown was already dead. Witness 138 described the position of Brown’s body as having his hands at right angles next to his head, contrary to photographic evidence and the observations of the SLCME medicolegal investigator.
After Brown was killed, Witness 101 ran over to Witness 138 in shock. Witness 101 left the scene to change his clothes, and then returned. According to Witness 138, at the insistence of Witness 101’s uncle and pastor, Witness 101 gave an interview to the media. Witness 138 explained that he was “stupid” to stand next to Witness 101 as he appeared on camera.
In response to federal authorities questioning about Wilson’s description of Brown as “Hulk Hogan,” Witness 138 said that Brown was more like the World Wrestling Federation wrestler “Big Show” in stature, but not in personality. Brown was intimidating because of his size, and Witness 138 understood how Wilson could generally perceive him as a threat. Witness 138 explained that he was friendly with Brown, and although it would surprise him if Brown attacked a police officer, it also surprised him to see the surveillance video of Brown shoving a store clerk, as it was uncharacteristic of him. In the days leading up to his death, Brown was acting out of character, speaking about his desire to get away from the struggles of life.
Witness 138 has no criminal history. There are significant inconsistencies between his two accounts, with the physical and forensic evidence, and with credible witness accounts. Accordingly, after a thorough review of the evidence, federal prosecutors determined this witness’s first account to lack credibility. His second account, regardless of credibility, does not inculpate Wilson. Therefore, these accounts do not support a prosecution of Darren Wilson.
xvi. Witness 132
Witness 132 is a 25-year-old black male. He spoke with FBI agents on three occasions. First, Witness 132 met with FBI agents during their canvass on August 16, 2014. At that time, Witness 132 stated that he did not see the shooting or hear the gunshots. However, he stated that his wife may have seen some of the incident. Ten days later, two other FBI agents followed up with his wife. She indicated that she did not see anything, but Witness 132, contrary to what he stated before, claimed to have witnessed the shooting of Brown. Finally, Witness 132 spoke again to the FBI, claiming her memory of the shooting was “blurry.”
During her second encounter with the FBI, contrary to all accounts that Wilson was driving westbound, Witness 132 said that he, Witness 132, was driving eastbound behind two FPD marked SUVs. Each SUV had two police officers, all of whom were white. According to Witness 132, the first SUV stopped in the middle of the street, cutting off Brown and running over his feet. Brown then “punched into the police car” because he was angry. In return, the police officer, to whom Witness 132 referred as “Ears,” reached down and shot Brown. Witness
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132 explained that Brown tried to run, but again, the officer shot Brown right where he stood, about five feet from the SUV. Brown half-turned, fell to his knees, and put his hands up. The officer shot Brown eight or nine more times. This all occurred on the passenger side of the vehicle.
After that interview with the FBI, Witness 132 actively and successfully evaded service of a county grand jury subpoena. Federal and county prosecutors independently and repeatedly tried to contact Witness 132 to no avail in an effort to reconcile the inconsistencies in his statements. However, Witness 132 ignored phone calls, hung up on the prosecutors, and pretended he was not at home. Witness 132 moved out of state and the FBI tracked him down in Georgia. Witness 132 refused to meet with federal prosecutors and told the FBI that the events of August 9, 2014 were “blurry,” he could not remember what happened, and he was starting a new chapter in his life.
Witness 132 has no criminal history. Witness 132’s second statement is starkly inconsistent with what he initially told law enforcement, is inconsistent with forensic and physical evidence, and is inconsistent with credible witness accounts. Federal prosecutors determined his account to inherently lack credibility, and did not consider it when making a prosecutive decision.
xvii. Witness 121
Witness 121 is a 36-year-old black female who twice spoke to federal authorities, and then testified before the county grand jury.
FBI agents initially interviewed Witness 121 in the presence of three other people during the FBI canvass on August 16, 2014. Her account was confusing and hard to follow, made more confusing by the three other individuals who interjected their thoughts into her account. Nonetheless, Witness 121 initially told the FBI that she saw Brown and Witness 101 walking in the street and she also saw an SUV with two police officers. The police officer on the driver’s side of the SUV reached out from within the vehicle and grabbed Brown by the collar. She assumed that the officer had his hand on his gun when he grabbed Brown. She heard a gunshot which struck Brown in the upper chest, leaving a red spot on Brown’s shirt. Witness 121 explained that the officer then immediately fired a second shot. Witness 121 seemed to suggest that the second shot happened while Brown was still by the SUV, prompting him to run; at another point during the same interview, Witness 121 suggested that the second shot occurred as Brown was running. She did not know whether that second shot struck Brown. She also explained that the second police officer emerged from the vehicle, though Witness 121 could not provide a description of him, nor be specific about when he emerged. Witness 121 explained that after Brown took off running, Brown put his hands up, walked toward Wilson, and then Wilson shot him. She further stated that Wilson walked over to Brown and “emptied” his gun into Brown, and that Brown “finally fell” after the last shot.
In contrast, however, during her follow up interview with federal prosecutors, Witness 121 explained that based on her vantage point, she did not see the initial interaction between Wilson and Brown. She explained that she had been standing by a dumpster, smoking a cigarette
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and talking on her phone when a gunshot drew her attention to the SUV. Once she heard the first shot, she became terrified and got ready to run, but instead watched Brown run from the SUV. Witness 121 made no mention of the second shot during her second interview. Likewise, Witness 121 denied that the second officer got out of the vehicle.
As before, Witness 121 explained that after Brown took off running, he put his hands up, walked toward Wilson, and then Wilson shot Brown. However, unlike in her first interview, Witness 121 denied that Wilson walked over to Brown and “emptied his gun” into him. Although she admitted making that prior statement, Witness 121 could offer no explanation for saying something that was inconsistent with the physical evidence and the accounts of almost all other witnesses. Instead, she described a chaotic scene and broke down in tears, acknowledging that she did not know what led up to the shooting. Witness 121 tearfully stated that she “didn’t see that young man do anything wrong,” empathizing with Brown’s mother because her own mother lost a child.
Witness 121 confirmed during her interview with federal authorities that Wilson did not fire any shots while Brown was running way. According to Witness 121, the only shots fired were the first one and the volley of shots as Brown was walking toward the officer with his hands up in surrender. Contrary to how Brown’s body was found and photographed when he fell to his death, Witness 121 was certain that Brown’s body landed in the same position that his hands were in when he was standing, at right angles adjacent to his head.
Contrary to every other witness account and mobile phone video taken in the immediate aftermath of the shooting, Witness 121 explained that Wilson then checked Brown’s pulse while his body lay on the ground. When federal prosecutors pressed her on this, Witness 121 acknowledged that perhaps she was mistaken. She stated that she was unsure which police officer checked his pulse and it likely happened after the police tape went up.
When asked about Witness 101’s presence, Witness 121 explained that she had been looking back and forth between Brown and Witness 101 during the shooting. However, Witness 101’s whereabouts were unclear throughout both of her accounts. During her first interview, Witness 121 stated that Witness 101 took off running when the initial shots were fired. During the second interview, she first stated that Witness 101 stood by the SUV and vomited on the street. When federal prosecutors asked if crime scene investigators would find vomit on the street to corroborate her claim, Witness 121 admitted that she did not see, but rather heard from others, that Witness 101 vomited on the street. Federal prosecutors and agents repeatedly urged Witness 121 to describe what she herself witnessed. It was then that she stated that Witness 101 had been crouched down, below car level, before he ran from the scene.
When Witness 121 appeared before the county grand jury, she again testified inconsistently. She testified that while she witnessed the shooting, she was standing next to Witness 126. As detailed below, Witness 126’s account was internally inconsistent and inconsistent with physical evidence. She also claimed that Witness 137 tossed a cigarette down to her from a balcony above. Witness 137, as detailed below, admitted to being untruthful when he was first interviewed by the FBI, giving an account inconsistent with the physical evidence.
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Reverting back to her initial account, Witness 121 testified before the county grand jury that even though her view was of the passenger side of the SUV, contrary to the physical evidence and other credible witnesses, Brown’s hands were never inside the SUV. She also added that she heard Witness 101 tell Wilson that he and Brown “weren’t that far” from where they were going.
Further, even though she admitted to federal prosecutors that she never heard Brown say anything, Witness 121 told the county grand jury that Brown screamed, “I give up!” as Wilson faced him in the roadway, gun drawn. However, she claimed that she was too far away to hear Wilson say anything.
Witness 121 has no criminal history. Witness 121 admittedly made false statements during her initial interview, her accounts are inconsistent with each other, inconsistent with the physical and forensic evidence, inconsistent with credible accounts, and she demonstrated bias in favor of Brown’s family. Accordingly, after a thorough review of all of the evidence, federal prosecutors determined this witness’s accounts to lack credibility and therefore do not support a prosecution of Darren Wilson.
xviii. Witness 126
Witness 126 is a 53-year-old black female. She is the godmother of Witness 137. Witness 126 gave two statements, first to the FBI and then to the county grand jury. During the course of her interview with the FBI, Witness 126 stated that her godson had been shot by police.
According to Witness 126, she suffers from memory loss and is under psychiatric care. Her account to the FBI was brief and is inconsistent with the autopsy results. She claimed that she was outside of her apartment during the shooting, never mentioning Witness 121 who claimed to be with Witness 126 at the time. Witness 126 saw Brown on his knees with his hands up, as Wilson was coming toward him and shooting at him. Brown then fell face down to the ground. Wilson went over to him, and similar to what her godson, Witness 137, said, “finished him off.” When the FBI told Witness 126 that her account was contrary to the evidence, she became belligerent, grabbed the recording device, shut it off, and would not return it to the agents.
When the agents retrieved it, and turned the recording device back on, Witness 126 admitted that she initially lied. She stated that she never saw Wilson inflict gunshot wounds on Brown. Rather, she saw him running from behind, and then fall to his knees with his hands in the air. She then saw Wilson walking toward Brown, followed by a “click click” sound. Wilson had bruising and redness on the right side of his face. Someone then tapped her on the shoulder and she turned away. She heard nine gunshots in total, and by the time she turned back around, Brown was dead on the ground.
Witness 126 stated that she had spoken with Brown before. They discussed college and helping senior citizens. Brown told her that “everything he used to do, he wouldn’t do it anymore.”
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Witness 126 telephoned the FBI the day after her interview to schedule an interview because she did not remember meeting with the agents and giving her account.
When Witness 126 testified before the county grand jury, she claimed to suffer from memory loss, but then recounted everything she had eaten for breakfast and every pill she had taken on the morning of August 9, 2014. Then she testified that she heard several shots, came out onto the parking lot, and saw Brown on his knees as Wilson fired shots into his head. She denied being untruthful to the FBI, and denied that she admitted to being untruthful to the FBI.
After Witness 126 testified before the county grand jury, she told the state prosecutor that she recorded the shooting on her mobile phone. However, she had since dropped the phone in the toilet. When the state prosecutor told her that forensic experts may still be able to recover the data, Witness 126 stated that she got mad and threw the phone in the junk yard.
Witness 126 has several felony arrests and a misdemeanor conviction that likely would be inadmissible in federal court as impeachment evidence. However, Witness 126 was admittedly untruthful to the FBI, suffers from memory loss, and provided internally inconsistent accounts that are also inconsistent with the physical and forensic evidence and credible witness accounts. Her account would be subject to extensive cross examination. Accordingly, federal prosecutors determined this witness’s account to lack credibility and therefore it does not support a prosecution of Darren Wilson.
xix. Witness 137
Witness 137 is 40-year-old black male. After the shooting, Witness 137 had learned that Brown was his nephew’s friend. He is the godson of Witness 126. He gave two law enforcement statements and testified before the county grand jury. Witness 137 first met with FBI agents on August 16, 2014, during their neighborhood canvass. Witness 137 also gave an interview to the media which was widely circulated throughout various media outlets. The account to the media and to the FBI was both internally inconsistent and inconsistent with the physical evidence. Therefore, federal agents and prosecutors subsequently met with Witness 137 in an attempt to assess inconsistencies and clarify his statement.
In his initial account during the neighborhood canvass, Witness 137 stated that he was on his porch using his mobile phone when he heard a gunshot. He looked out from his porch and saw Brown running away from a police officer who was chasing him. The police officer shot Brown in the back. “Realiz[ing] he was shot,” Brown turned around with his hands up in surrender. Brown walked toward the officer and as he did so, the officer “closed in on him” until they were less than an arm’s length apart. The officer fired “every round” into Brown, killing him “execution” style. Witness 137 explained that the officer shot Brown in the lower abdomen, chest, and then the “head shot.” Witness 137 stated that after Brown fell forward, “the officer stood over him and finished him off.” Witness 137 stated that the officer shot Brown in the head both when he was still standing and then when he was on the ground. Although Witness 137 stated that Brown fell to his knees for the final shots, and the last words Brown said were “Don’t shoot,” he also stated that Brown was lying on the ground when the final bullets were fired. Witness 137 referred to how clear the “visual” of events was to him.
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Throughout the interview, Witness 137 also referred to events that preceded the initial gunshots even though he admitted that he did not see those events. He also discussed the interaction at the SUV, the location of recovered bullets, and the type of clip in the officer’s gun.
During their follow-up interview with Witness 137, federal prosecutors and agents asked Witness 137 to describe only what he saw. Witness 137 once again stated that the sound of a gunshot drew his attention. When he moved further onto his porch, he said that he heard another shot, and saw Brown turn around with his hands up. Referencing the arm graze wound that was widely reported in the news after the privately-commissioned autopsy, Witness 137 stated that he believed that wound caused Brown to turn around. He then saw the officer backing up while firing shots as Brown walked at a “steady pace” of about ten steps in total toward him. According to Witness 137, there was no pause in the succession of shots, and Brown kept walking, even after he was shot in the torso. Witness 137 stated, “that’s all I seen,” explaining that he did not see Brown fall to the ground because that occurred in a blind spot. However, he was able to see the officer walk away, call for back up, and appear to be discombobulated. It was then that Witness 137 walked over to the scene where Brown’s body lay in the street.
Contrary to his previous statement, Witness 137 denied that the officer shot Brown from less than an arm’s length away, denied that he saw the officer shoot Brown execution-style; denied that the officer shot Brown when he was on the ground; denied that the officer “finished him off;” and denied that Brown’s last words while on his knees were “Don’t shoot.” Witness 137 explained that he initially told the FBI that the officer stood over Brown and shot him execution-style while on his knees because he “assumed” that to be true. Witness 137 based his assumptions on the sound of the bullets and “common sense” from living in the community, despite claiming to have a “clear visual” of events.
Witness 137 also identified his voice on the aforementioned video taken in the aftermath of the shooting depicting the two contractors. As mentioned, Witness 137 was one of two people who claimed to be off camera shouting, “He wasn’t no threat at all,” because he did not perceive Brown to be a threat. However, Witness 137 acknowledged that contrary to what he originally told the FBI, the only part he saw was Brown moving back toward the officer. He did not witness what transpired at the SUV, did not witness Brown run from the SUV, and he did not witness Brown fall to his death. Therefore, Witness 137 agreed that he did not know whether Brown was a physical threat before or after the portion that Witness 137 claimed to see.
Witness 137 has previously been convicted of second-degree murder and armed criminal action which likely would be admissible in federal court as impeachment evidence. Additionally, Witness 137 was untruthful to the FBI during his initial interview, and untruthful in his media accounts. Although he later recanted most of what he claimed to have seen, he was unable to offer a credible explanation as to why he was not truthful at the outset, leaving federal prosecutors to question what, if anything, he actually did witness. His accounts are inconsistent with each other, inconsistent with the physical and forensic evidence, and inconsistent withcredible witness accounts. Accordingly, after a thorough review of the evidence, federal prosecutors determined this witness’s accounts not to be credible and therefore do not support a prosecution of Darren Wilson.
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xx. Witness 128
Witness 128 is a 23-year-old black male who has made three different statements to law enforcement and testified before the county grand jury. He initially had a telephone interview with an investigator from the St. Louis County Prosecutor’s Office and then an additional interview with that same investigator and the FBI. Both interviews were materially inconsistent with the physical evidence. Federal agents and prosecutors interviewed Witness 128 again in an effort to evaluate some of the inconsistencies.
According to Witness 128’s initial accounts, he was driving east on Canfield Drive when he witnessed the shooting. It is unclear what Witness 128 initially saw because in one interview, he stated that he saw the police vehicle quickly back up. In another interview, he stated that by the time he pulled up, Wilson had already stopped his vehicle. Witness 128 stated that he then saw Brown struggling to get away from Wilson, who was choking Brown with both hands, while Witness 101 stood behind Brown. Witness 128 then heard a gunshot and saw the impact of the bullet, initially giving little detail but subsequently adding that Wilson held the gun out the window with his right hand while holding Brown with his left hand, and firing the gun into Brown’s left chest.
Brown broke free and ran about 15 feet while Witness 101 ducked down between the police vehicle and the car right behind it. Witness 128 explained that while Wilson was still seated in the vehicle with the door closed, Wilson “let more shots go.” Brown appeared to get hit by four rounds in the middle of his back. Brown “slowed up” and turned around, although Witness 128 later stated that Brown continued running another 20 or 25 feet before he turned around.
Wilson then emerged from the SUV about five seconds after he fired four or five rounds, and “patiently” walked toward Brown in “lazy pursuit.” Brown “threw his hands up, clean in the air.” Initially, Witness 128 stated that Brown said, “Don’t kill me,” but later admitted that he did not actually hear Brown or Wilson say anything. Wilson then fired two shots at “point blank range” from within two feet. The shots hit Brown in the face and Brown fell to the ground. Wilson then fired four or five shots into Brown’s back after Brown was already dead, face first on the ground. Witness 128 then drove by Wilson and asked him why he shot Brown. Wilson told Witness 128 to “shut the fuck up,” “mind [his] own business,” and “keep going.” Witness 128 then pulled into his complex and parked, staying away because he did not want to get shot himself. According to Witness 128, there were no other people or cars on the street, except for a white pick-up truck behind him.
Federal prosecutors and agents met with Witness 128 and challenged him on internal inconsistencies and statements he made that were inconsistent with physical evidence. Contrary to his previous account, he stated that when he pulled up on Canfield Drive, he saw Brown in the driver’s side window of the SUV from his mid-chest up. He stated that Brown and Wilson were pulling on each other’s shirts until Brown backed up. Wilson then held his gun out the window and fired a shot. As a result, Brown ran from the vehicle. Contrary to his previous statement to the FBI, Witness 128 told federal prosecutors that although he heard additional shots, he did not see them because he ducked down in his vehicle. For the first time, Witness 128 mentioned the
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presence of a female passenger in his vehicle. He could not identify the passenger, but explained that during the shooting, his attention was diverted to her because he was trying to keep her calm, as she had become hysterical.
Witness 128 explained that when he stopped ducking for cover, he saw Brown coming back toward Wilson with his hands up. Witness 128 stated that Wilson shot Brown, causing him to fall face down to the ground. He maintained that Wilson then stood over Brown and shot into his back. When federal prosecutors asked him to reconcile those final shots with the autopsy report that shows that Brown was not shot in the back, Witness 128 said he may have hallucinated but could not offer more of an explanation. He also admitted that much of what he initially said was assumption.
As mentioned, Witness 128 was one of two witnesses who identified his voice on the aforementioned video taken in the aftermath of the shooting depicting the two contractors. Witness 128 claimed to be the person off camera shouting, “He wasn’t no threat at all,” because he did not perceive Brown to be a threat. However, Witness 128 acknowledged that he did not know what happened at the SUV. Contrary to what he originally told the FBI, he did not see Brown run from the SUV, was mistaken about the final shots fired, and therefore did not know whether Brown was a threat to Wilson.
Witness 128 also admitted that he spoke to Brown’s mother on the day of the shooting and shared details of the shooting. Witness 128 told Brown’s mother that Wilson shot Brown at point blank range while his hands were up, and that even after Brown fell to his death, Wilson stood over Brown and fired several more times. Witness 128 also told several neighbors his inaccurate version of what happened, as they were gathering in the minutes and hours after the shooting. Several individuals identified Witness 128 through description as someone who was going around spreading a narrative that Brown was shot with his hands up in surrender.
Witness 128 has been convicted of multiple felonies including crimes of dishonesty, all of which would be admissible in federal court as impeachment evidence. Witness 128’s accounts are inconsistent with each other, inconsistent with the forensic and physical evidence, and inconsistent with credible witness accounts. Accordingly, after a thorough review of the evidence, federal prosecutors determined this witness’s accounts to lack credibility and therefore do not support a prosecution of Darren Wilson.
xxi. Witness 140
Witness 140 is a 45-year-old white female who gave two statements to law enforcement and testified before the county grand jury. Witness 140 contacted SLCPD detectives in September 2014, claiming to have been a witness to the shooting of Brown, but too fearful to come forward when it happened. She explained that she decided it was time to come forward because she knew the case was being presented to the county grand jury and she was “tired of hearing that the officer is guilty.” SLCPD and the FBI jointly interviewed Witness 140, who completely corroborated Wilson’s account. Although the physical and forensic evidence was consistent with her account, the timing of her disclosure and the details of her narrative caused
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investigators to question her veracity. Therefore, federal prosecutors and agents conducted a follow-up interview.
During her follow-up interview, as in her initial account, Witness 140 claimed that she inadvertently ended up on Canfield Drive because she got lost on her way to visit a friend in Florissant, whom she had not seen in about 25 years. Witness 140 explained that she did not have a cell phone or a GPS, and was prone to getting lost. She pulled into the Canfield Green apartment complex to ask for directions, getting out of her car to do so. When federal prosecutors asked her why, as a woman, she would get out of her car in an unfamiliar neighborhood, she explained that she wanted to smoke a cigarette. Thereafter, while standing on the sidewalk, smoking a cigarette with a man from whom she was getting directions, she saw Wilson’s SUV drive in the opposite direction of Brown and Witness 101, who were walking in the middle of the street. Witness 140 explained that she saw Wilson stop, speak to Brown and Witness 101, pull forward, and then back up. Wilson then tried to open the door of the SUV, but Brown punched it shut. Witness 101 grabbed the rearview mirror, bending it inward and catching his bracelet which broke and fell to the ground.
The specificity of this description initially caused SLCPD detectives concern because it mimicked an obscure media article which offered theories about how the SUV rearview mirror came to be folded inward and how beaded bracelets, found at the scene, landed on the ground. During Witness 140’s follow-up interview, federal prosecutors asked her about this online article and Witness 140 acknowledged reading it prior to meeting with SLCPD detectives, possibly using it to fill in gaps in her memory.
According to Witness 140, she saw a struggle by the SUV, explaining that Brown was bent forward such that the top portion of his body, starting at the navel, was in the SUV. She described “childish wrestling” or “fist fighting” that ensued. She heard one gunshot from within the SUV, and then saw Brown run away, as Wilson shouted, “Stop. Freeze. I’m gonna shoot.” Wilson fired a second gunshot as he got out of the SUV. Witness 140 described it as a possible “warning shot” because Brown did not “even flinch,” indicating to her that he was not hit. Wilson then pursued Brown, who “made it further than where he got shot.” Brown then turned around as Brown’s arms flew upward, and Wilson stopped pursuing him. Brown bent forward in a “football-type” mode, hands balled up in fists, and “started charging.” Witness 140 explained that Brown looked like “he was on something.” Wilson looked panicked as he repeatedly shot Brown in the arm. Brown, however, kept coming at Wilson, who backed up as Brown closed the distance. Witness 140 heard a volley of four shots, a pause, and then two more shots before Brown fell to his death and “it got gross.”
Witness 140 explained that she did not see Witness 101 after the initial interaction at the SUV until he reappeared five to 10 minutes after the shooting with his black t-shirt draped over his “wife-beater” tank top. This description matched how Witness 101 appeared in media interviews in the aftermath of the shooting. Also, seeing Witness 101 reappear conflicted with Witness 140’s explanation that she immediately left Canfield Drive after the last shots because she was the only white woman in a neighborhood that was quickly growing hostile.
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Investigators also questioned Witness 140 about the route she took out of the complex, which looks navigable on a map, but in reality is blocked by a concrete street barrier. Witness 140 responded that she is not good with directions, and was unsure the route she took. Since the shooting incident, she has acquired both a GPS and a mobile phone.
Witness 140 stated that she went immediately home and told no one about what she witnessed except her ex-husband. However, when SLCPD detectives attempted to verify this, Witness 140’s ex-husband reported that Witness 140 has a tendency to lie. Witness 140’s response was that her ex-husband was distrustful that the detectives were who they claimed to be. Nonetheless, Witness 140 acknowledged that she suffers from bouts of mania because she does not take her medicine for bipolar disorder and she suffered traumatic brain injury from a car crash several years ago.
Witness 140 also admitted to federal prosecutors that although she told no one about what she had witnessed, she posted comments on websites and Facebook about the shooting. Her comments were blatantly profane and racist. Furthermore, she was involved in developing a fundraising organization for first responders, and had a picture of a “thin blue line” as her Facebook profile picture.
During her testimony before the county grand jury, Witness 140 admitted that she did not get lost on Canfield Drive while en route to visit a high school friend, but rather she purposely went to Canfield Drive that day because she fears black people and was attempting to conquer her fears. However, in an effort to bolster he testimony, Witness 140 provided county prosecutors with a daily journal she claimed to keep, with one entry that documented the events of August 9. While that entry was detailed, all of the other entries were generic and sporadic.
Witness 140 was twice convicted of passing bad checks, felonies that are crimes of dishonesty and likely admissible in federal court as impeachment evidence. Although Witness 140’s account of this incident is consistent with physical and forensic evidence and with credible witness accounts, large parts of her narrative have been admittedly fabricated from media accounts, and her bias in favor of Wilson is readily apparent. Accordingly, while her account likely is largely accurate, federal prosecutors determined that the account as a whole was not reliable and therefore did not consider it when making a prosecutive decision.
xxii. Witness 139
Witness 139 is 50-year-old black female. She made two statements, including her county grand jury testimony. As detailed below, Witness 139’s initial account was riddled with inconsistencies from one sentence to the next. She was unable to provide a coherent narrative, and when she was asked to clarify, Witness 139 would respond with “you know what I mean,” answer with a non sequitur, or break down in sobs. The details that she did provide were largely inconsistent with the physical evidence. Witness 139 was similarly incoherent and inconsistent when she testified before the county grand jury, unable to provide any sort of linear narrative.
Witness 139 reluctantly came to the NAACP office in St. Louis to meet with SLCPD detectives, FBI agents, and federal prosecutors. Through hysterical tears, she expressed fear in
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speaking with law enforcement because she felt pressured by the community to make a statement about what she had purportedly witnessed. She explained that ever since she gave a media interview,25 people have been anonymously calling her. Witness 139 explained that these calls made her feel threatened, though she could not articulate how or why she felt threatened.
According to Witness 139, at about 2:30 to 3:00 p.m., she was driving eastbound on Canfield Drive, in the same direction she claimed Wilson’s “four door car” was traveling, and the same direction in which Brown and Witness 101 were walking. She had difficulty distinguishing between Brown and Witness 101. Witness 139 stated that she was behind the police car, but pulled over to let him pass. Wilson then stopped his car to speak with Brown and Witness 101, though Witness 139 was inconsistent about whether two or three cars pulled past her and drove off or whether there were two or three cars in front of her when Wilson stopped. Witness 139 stated that Wilson told Brown and Witness 101 to use the sidewalk, but then said that she could not actually hear words. Rather, she just heard a deep voice. Either Brown or Witness 101 then walked toward the front of the police car and Wilson grabbed that person. Witness 139 could not be more descriptive, explaining that she had answered her mobile phone while this was happening.
Witness 139 explained that Wilson reached for his gun and held it straight out of the driver’s side window, firing one or two shots. Later in her interview, she described Wilson holding the gun on the window frame when firing. Either way, Witness 139 explained that while this was happening, Witness 101 ran behind the police car. Brown was standing by the driver’s side window, close enough to touch the car. However, she later described Brown being closer to the headlights of the car. When she saw those first gunshots, Witness 139 put her head down on the steering wheel, covering her eyes. Wilson then got out of his car, stood over Brown, and kept shooting. If Witness 139 was initially driving behind Wilson, she would have had the same vantage point as Witness 123 and Witness 133 in the white Monte Carlo, and therefore, would have been unable to see the driver’s side of Wilson’s vehicle and much of what she described.
Also inconsistent with what she initially described, Witness 139 said that Brown ran from the police car after the first two shots. She first claimed that Wilson shot Brown in the back as Brown was running, which caused Brown to turn around. Witness 139 also stated that Wilson was still getting out of his car when Brown turned around, making it unclear if Wilson shot at Brown as he was running away. To that end, Witness 139 also stated that she was not sure if the bullet struck him in the back. Regardless, Brown turned around, never moving forward from where he stood. According to Witness 139, Brown fell to the ground dead with his hands next to his head at right angles because his hands had been up. Wilson then fired at least three shots as Brown was lying face down on the ground. Witness 139 saw that Brown was bleeding from his back. When asked how she was able to witness the final shots if she had her head down in her arms, Witness 139 explained that she put her head down in her arms after the first two shots, but she could still see because she was peeking. Witness 139 claimed that when she asked Wilson if she could check on Brown because she is a nurse, he told her to “get the fuck on.”
25 There is no indication that Witness 139 ever gave a media interview that was broadcast to the public.
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Witness 139 has no criminal history. Witness 139’s account was incoherent and inconsistent throughout, markedly inconsistent with the physical and forensic evidence, and inconsistent with credible witness accounts. Wilson was driving an SUV westbound at noon, not a car eastbound at 2:30 p.m.; Wilson fired the first shot inside the SUV, not straight out the window; Brown moved toward Wilson and did not fall to his death where he turned around, nor did he die within an arm’s length of the police vehicle; and Wilson did not stand over Brown and shoot him causing him to bleed from the back. Accordingly, federal prosecutors determined this witness’s account not to be credible and therefore it does not support a prosecution of Darren Wilson.
xxiii. Witness 120
Witness 120 is a 19-year-old black male who said he was Brown’s best friend and Witness 101’s “cousin.” Brown was staying with Witness 120 the night before the shooting occurred, during which time they did “a whole lot of talking about God” and “about the problems that [they have] been going through.” Witness 120 explained that it seemed like Brown was “going through a phase.”
Witness 120 gave three statements, including his testimony before the county grand jury. FBI agents and SCLPD detectives initially interviewed Witness 120 in the presence of his lawyer and his uncle. Witness 120 gave an internally inconsistent account that was also inconsistent with physical evidence. Federal prosecutors and agents interviewed Witness 120, with his lawyer present, in an attempt to determine what he actually witnessed.
According to Witness 120’s initial account, he was on the phone on the third floor of his sister’s apartment when he heard a gunshot. He instantly hopped up to look out the window because he knew that Brown and Witness 101 were walking to the store to get cigarillos to smoke marijuana later that day. When he looked out the window, Witness 120 saw Brown, who was facing the window, drop to his knees with his hands in the air, blood coming from his left shoulder and ribcage.26 Brown’s back was to the police vehicle. Witness 101 was next to Brown. Brown told Witness 101 to “run for your life.” However, later in the same interview, Witness 120 stated that Witness 101 told him (Witness 120) that he, Witness 101, ran away after that first shot. When Witness 120 testified before the county grand jury, he said that he did not see Witness 101 until after the shooting was over.
According to Witness 120, Wilson then got out of the police cruiser, and positioned himself “a step away” from Brown, who stated, “Please don’t shoot me.” Wilson then shot Brown “point blank” in the head and Brown fell on his side. Wilson then fired eight more shots while Brown was on the ground, one of which grazed his arm.27
During his follow-up interview with federal prosecutors and federal agents, Witness 120 stated that he was asleep when Brown and Witness 101 left to go to the store. He woke to the sound of a gunshot. Witness 120 then repeated the same account as before: He went to the window and saw Brown on his knees with his hands up, situated about five feet from the police
26 Autopsy results indicate that Brown was shot on his right side. 27 Witness 120 cited to media reports as to why he knew that Brown was shot in the arm.
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vehicle. Brown said, “Please don’t shoot me,” and Wilson fired a shot into Brown’s head at “point blank” range. However, during the second interview, Witness 120 acknowledged that he never saw Wilson emerge from his vehicle and never saw any injury on Brown. Instead, he claimed that after that second shot, he ran downstairs and heard two volleys of four shots each with a pause in between. By the time he got downstairs, the gunfire had ended. Witness 120 explained that although he did not see the shots, common sense dictates that those eight shots struck Brown. He also explained that he based most of his recanted account on what people “in the community told [him].”
Although Witness 120 recanted most of his original statement, his version to federal prosecutors was still inconsistent with the autopsy results. Likewise, Witness 120 gave an inconsistent account to the county grand jury, admittedly based on rumor and hearsay, and motivated by his allegiance to his friend. When grand jurors questioned Witness 120 about inconsistencies with physical evidence, he dismissed the question, stating that Brown “was assassinated for what reason.”
Witness 120’s claim that Brown’s body was found five feet from the police vehicle is inconsistent with the crime scene; Witness 120’s description that Wilson shot Brown at point blank range is inconsistent with the autopsy results; Witness 120’s description that he was at home at the time the first shots were fired is inconsistent with Witness 138’s description that Witness 120 was at Witness 138’s house when the shots were fired.
Witness 120 has a felony arrest that likely would be inadmissible in federal court as impeachment evidence. In addition to his accounts being riddled with inconsistencies with each other, the physical and forensic evidence, and credible witness accounts, Witness 120’s account is driven by apparent bias for his friend. Accordingly, federal prosecutors determined his account to lack credibility and it does not therefore support a prosecution of Darren Wilson.
xxiv. Witness 148
Witness 148 is a 26-year-old black female who did not report to federal authorities that she witnessed the shooting until late February, 2015. Witness 148 briefly spoke to federal prosecutors via telephone to provide a summary of what she witnessed on August 9, 2014. Based on that description, federal prosecutors and agents subsequently met with Witness 148 in person.
According to Witness 148, she was driving eastbound on Canfield Drive, traveling in the same direction as Brown and Witness 101. She drove past Wilson, who was driving his SUV, and Brown and Witness 101 who were walking in the street, but right next to the curb of the sidewalk. Contrary to all other evidence, they were not in the middle of the street. She heard Wilson say, “Get the fuck on the sidewalk,” and she heard either Brown or Witness 101 respond that they were near their “destination.” Suspecting something was going to happen between Wilson and Brown and Witness 101 because she is from Chicago and is used to bad interactions with police, she slowed down and watched over her right shoulder, out her back window. She heard tires “screech” and saw the SUV reverse back.
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Witness 148 pulled her vehicle into a nearby parking lot and parked because she wanted to see what would happen next. She told her four-year-old son to wait in her car while she got out of her vehicle and watched as Brown and Wilson engaged in a struggle on the driver side of the SUV. Witness 148 stated her that her vantage point was of the passenger side of the SUV, but she could nonetheless see Brown using his hands to push off the driver’s door as Wilson pulled Brown toward the SUV. She heard Brown repeatedly state, “I didn’t do anything,” as Wilson stated, “Stop resisting.” Despite being in a parking lot and on the opposite side of the SUV as Brown, Witness 148 stated that Brown “looked scared and it’s not like he’s a giant or anything.” Witness 148 also stated that Brown never put his hands inside the SUV window, despite forensic and physical evidence to the contrary. However, she ultimately acknowledged to prosecutors that because she could not see the driver’s side of the SUV, she did not know whether Brown put his hands inside the SUV window.
According to Witness 148, her son then got out of her vehicle because he wanted to watch what was happening. Witness 148 heard a gunshot. Witness 148 got down on the grass and covered her child’s body with her own to protect him. While doing so, she watched Witness 101 and then Brown run from the SUV. After that, Witness 101 disappeared and she never saw him again. Wilson then emerged from the SUV and fired at least two shots. Brown flinched, arching his body back as though the bullet had “grazed” him. Brown then turned around and put his hands up in right angles at shoulder-height in a sign of surrender. He then dropped to his knees, and started to say something like, “I don’t have a -,” but was cut off as Wilson walked toward Brown firing at least six shots, killing Brown. Witness 148 described Wilson as “possessed” based on the “look in his eyes,” as though “he wasn’t human.” It is unclear based on Witness 148’s description how she was able to see both the look in Wilson’s eyes and Brown trying to speak as he was surrendering, all at the same time.
Witness 148 was initially adamant that, contrary to DNA evidence in the roadway and credible witness accounts that establish otherwise, Brown never moved forward from the spot where he turned around to face Wilson. When prosecutors specifically asked her about this, Witness 148 acknowledged that because he son was squirming on the ground and she feared for his safety, her attention may have been diverted during the shooting, and therefore she may have missed parts of it. Nonetheless, she repeated that Wilson shot Brown as he was “surrendering.”
When prosecutors and agents pressed Witness 148 as to why it took her nearly seven months to come forward and report what she witnessed, she explained that she feared the FPD. She maintained that she did not tell anyone – “not one living soul” – about what she witnessed on August 9, 2014. Witness 148 stated however, that she was she was not going to live in fear and therefore went to Ferguson every day since the shooting until the day of the county grand jury’s decision on November 24, 2014. She protested and marched, but never shared with anyone what she witnessed, including her god-daughter who started a “Michael Brown movement.” However, Witness 148 met a close friend of the Brown family after a Martin Luther King Day protest. Several weeks after that, she told the friend what she had witnessed and ultimately met with Brown’s mother. Witness 148 explained that as a mother herself, she wanted to share with Brown’s mother what happened to Brown.
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Federal prosecutors asked Witness 148 why she chose not report to the FBI or the SLCPD, since her distrust was specific to the FPD. Witness 148 explained that she did not know that either of those agencies was investigating, despite the fact that she went to Ferguson everyday for three months and admittedly, read media reports about the shooting in the hours, days, and weeks after it occurred.
Witness 148 has felony convictions including conviction for a crime of dishonesty that would be admissible in federal court as impeachment evidence. Her account is inconsistent with the physical and forensic evidence, inconsistent with undisputed facts, i.e. Brown and Witness 101 were in fact walking in the middle of the street, and she admittedly did not see portions of the incident based on her vantage point and because she was protecting her child from gunfire. Similar to Witness 140, even if Witness 148 was present on Canfield Drive on August 14, 2014, and saw parts of the incident, Witness 148’s account is inherently unreliable and subject to extensive cross-examination based on how she obtained her information and what motivated her to come forward. She did not report what she witnessed for nearly seven months without any reasonable explanation for the delay, giving her ample opportunity to research the facts in the form of media stories and county grand jury transcripts; she has an apparent distrust of the police (she told federal prosecutors at the outset of her interview that she “didn’t trust police at all”); she is upset that “Darren Wilson got away” with what she believes to be a crime and then subsequently engaged in months of protests, but yet she failed to report it to the FBI, not because of distrust, but because she was unaware of the federal investigation. This is difficult to reconcile in light of both her daily visits to Ferguson while the FBI was canvassing the area and her regular internet searches about the shooting. For these reasons, federal prosecutors did not credit her account and could not rely upon it to support a prosecution of Darren Wilson.
xxv. Other Individuals Who Did Not Witness the Shootings
Throughout the course of the two investigations, FBI agents and SLCPD detectives both jointly and independently monitored social media, print media, and local and national television broadcasts and news reports in an effort to locate potential witnesses and sources of information. Investigators tracked down several individuals who, via the aforementioned media, claimed to have witnessed Wilson shooting Brown as Brown held his hands up in clear surrender. All of these purported witnesses, upon being interviewed by law enforcement, acknowledged that they did not actually witness the shooting, but rather repeated what others told them in the immediate aftermath of the shooting.
For example, one individual publicly posted a description of the shooting during a Facebook chat, explaining that Brown “threw his hands up in the air” as Wilson shot him dead. A Twitter user took a screenshot of the description and “tweeted” it throughout the social media site. When the SLCPD and the FBI interviewed the individual who made the initial post, he explained that he “gave a brief description of what [he] was hearing from the people that were outside” on Canfield Drive, but he did not witness the incident itself. Similarly, another individual publicly “tweeted” about the shooting as though he had just witnessed it, even though he had not.
Likewise, another individual appeared on a television program and discussed the shooting as if he had seen it firsthand. When law enforcement interviewed him, he explained that it was a
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“misconception” that he witnessed the shooting. He spoke to the host of the show because he was asked if he wanted to talk about the shooting. In so doing, he was inaccurately portrayed as a witness.
Another individual recorded the aforementioned video of the contractors taken in the aftermath of the shootings. When an FBI agent and federal prosecutor met with that individual, he explained that because the video had been widely circulated in the media, many people incorrectly believed that he had witnessed the shooting. He did not witness the shootings, and was initially unsurprised to hear gunshots because it was not uncommon to hear gunfire in the neighborhood. He started recording after the gunshots abated by placing his iPad in the groundlevel window of his basement apartment. He provided federal authorities with that video and other videos taken minutes after the shooting. Several videos captured conversations of bystanders on Canfield Drive, standing by police tape as paramedics covered Brown’s body with two more sheets in addition to the one that was already covering him. During those conversations, bystanders discussed what transpired, although none of what was recorded was consistent with the physical evidence or credible accounts from other witnesses. For example, one woman stated that the officer shot at Brown from inside his vehicle while the SUV was still moving and then the “officer stood over [Brown] and pow-pow-pow.”
Because none of these individuals actually witnessed the shooting incident and admitted so to law enforcement, federal prosecutors did not consider their inaccurate postings, tweets, media interviews, and the like when making a prosecutive decision.
IV. Legal Analysis
The evidence discussed above does not meet the standards for presentation of an indictment set forth in the USAM and in the governing federal law. The evidence is insufficient to establish probable cause or to prove beyond a reasonable doubt a violation of 18 U.S.C. § 242 and would not be likely to survive a defense motion for acquittal at trial pursuant to Federal Rule of Criminal Procedure 29(a). This is true for all six to eight shots that struck Brown. Witness accounts suggesting that Brown was standing still with his hands raised in an unambiguous signal of surrender when Wilson shot Brown are inconsistent with the physical evidence, are otherwise not credible because of internal inconsistencies, or are not credible because of inconsistencies with other credible evidence. In contrast, Wilson’s account of Brown’s actions, if true, would establish that the shootings were not objectively unreasonable under the relevant Constitutional standards governing an officer’s use of deadly force. Multiple credible witnesses corroborate virtually every material aspect of Wilson’s account and are consistent with the physical evidence. Even if the evidence established that Wilson’s actions were unreasonable, the government would also have to prove that Wilson acted willfully, i.e. that he acted with a specific intent to violate the law. As discussed above, Wilson’s stated intent for shooting Brown was in response to a perceived deadly threat. The only possible basis for prosecuting Wilson under Section 242 would therefore be if the government could prove that his account is not true – i.e., that Brown never punched and grabbed Wilson at the SUV, never struggled with Wilson over the gun, and thereafter clearly surrendered in a way that no reasonable officer could have failed to perceive. Not only do eyewitnesses and physical evidence corroborate Wilson’s account, but there is no credible evidence to disprove Wilson’s perception that Brown posed a
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threat to Wilson as Brown advanced toward him. Accordingly, seeking his indictment is not permitted by Department of Justice policy or the governing law.
A. Legal Standard
To obtain a conviction of Darren Wilson at trial for his actions in shooting Michael Brown, the government must prove the following elements beyond a reasonable doubt: (1) that Wilson was acting under color of law; (2) that he acted willfully; (3) that he deprived Brown of a right protected by the Constitution or laws of the United States; and (4) that the deprivation resulted in bodily injury or death. The Constitutional right at stake depends on Brown’s custodial status at the time Wilson shot him. See Graham, 490 U.S. at 395; Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012). In this case, Wilson had attempted to stop and possibly arrest Brown. The rights of an arrestee are governed by the Fourth Amendment’s prohibition against unreasonable searches and seizures, which includes the right to be free from excessive force during the course of an arrest. See Nelson v. County of Wright, 162 F.3d 986, 990 (8th Cir. 1998). Under the Fourth Amendment, an officer’s use of force must be “objectively reasonable” under the facts and circumstances known to the officer at the time he made the decision to use physical force. Id. Establishing that the intent behind a Constitutional violation is “willful” requires proof that the officer acted with the purpose “to deprive a person of a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them.” See United States v. Lanier, 520 U.S. 259, 267 (1997), citing Screws v. United States, 325 U.S. 91 (1945). While the officer need not be “thinking in Constitutional terms” when deciding to use force, he must know what he is doing is wrong and decide to do it anyway. Screws at 106-07. Mistake, panic, misperception, or even poor judgment by a police officer does not provide a basis for prosecution under Section 242. See United States v. McClean, 528 F.2d 1250, 1255 (2d Cir. 1976) (inadvertence or mistake negates willfulness for purposes of 18 U.S.C. § 242).
There is no dispute that Wilson, who was on duty and working as a patrol officer for the FPD, acted under color of law when he shot Brown, or that the shots resulted in Brown’s death. The determination of whether criminal prosecution is appropriate rests on whether there is sufficient evidence to establish that any of the shots fired by Wilson were unreasonable given the facts known to Wilson at the time, and if so, whether Wilson fired the shots with the requisite “willful” criminal intent, which, in this case, would require proof that Wilson shot Brown under conditions that no reasonable officer could have perceived as a threat.
B. Uses of Force
Under the Fourth Amendment, a police officer’s use of physical force against an arrestee must be objectively reasonable under the circumstances. Graham, 490 U.S. at 396-97 (1989). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. “Careful attention” must be paid “to the facts and circumstances of each particular case, including 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. Allowance must be made for the fact that law enforcement officials are
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often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving. Id. at 396-97.
The use of deadly force is justified when the officer has “probable cause to believe that the suspect pose[s] a threat of serious physical harm, either to the officer or to others.” Tennessee v. Garner, 471 U.S. 1, 11 (1985); see Nelson, 162 F.3d at 990; O’Bert ex. rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 36 (2d Cir. 2003) (same as Garner); Deluna v. City of Rockford, 447 F.3d 1008, 1010 (7th Cir. 2006), citing Scott v. Edinburg, 346 F.3d 752, 756 (7th Cir. 2003) (deadly force can be reasonably employed where an officer believes that the suspect’s actions place him, or others in the immediate vicinity, in imminent danger of death or serious bodily injury). An officer may use deadly force under certain circumstances even if the suspect is fleeing. “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” See Garner, 471 U.S. at 11-12.
An officer may not, on the other hand, use physical force, deadly or otherwise, once a threat has been neutralized. This is true even if the suspect threatened an officer’s life – or that of another – prior to being brought under control. See Moore v. Indehar, 514 F.3d 756, 762 (8th Cir. 2008); Nelson, 162 F.3d at 990. For that reason, every instance in which Wilson shot Brown could potentially be prosecuted if the deployment of deadly force was objectively unreasonable in the particular circumstance. We must therefore determine whether, each time he fired his weapon, the available evidence could prove that Wilson acted reasonably or unreasonably in light of the facts available to him at the time. In particular, we must examine whether the available evidence shows that Wilson reasonably believed that Brown posed a threat of serious bodily harm to Wilson himself or others in the community, or whether Brown clearly attempted to surrender, prior to any of the shots fired by Wilson.
1. Shooting at the SUV
The evidence establishes that the shots fired by Wilson while he was seated in his SUV were in self-defense and thus were not objectively unreasonable under the Fourth Amendment. According to Wilson, when he backed up his SUV and attempted to get out to speak with Brown, Brown blocked him from opening the door. Brown then reached through the window and began to punch Wilson in the face, after which he reached for and gained control of Wilson’s firearm by putting his hand over Wilson’s hand. As Brown was struggling for the gun and pointing it into Wilson’s hip, Wilson gained control of the firearm and fired it just over his lap at Brown’s hand. The physical evidence corroborates Wilson’s account in that the bullet was recovered from the door panel just over Wilson’s lap, the base of Brown’s hand displayed injuries consistent with it being within inches of the muzzle of the gun, and Wilson had injuries to his jaw consistent with being struck. Witnesses 102, 103, and 104 all state that they saw Brown with the upper portion of his body and/or arms inside the SUV as he struggled with Wilson. These witnesses have given consistent statements, and their statements are also consistent with the physical evidence.
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In contrast, the two primary witnesses who state that Wilson instigated the encounter by grabbing Brown and pulling him toward the SUV and that Brown’s hands were never inside the vehicle are Witnesses 101 and 127. Both of those witnesses have given accounts that are inconsistent with the forensic and physical evidence. For example, both witnesses insisted that Wilson shot Brown in the back as he fled and that they saw shots hit Brown in the back. These statements are contradicted by all three autopsies, which concluded that Brown had no entry wounds to his back. Both witnesses also insist that, after he turned to face Wilson, Brown raised his hands, never moved forward, and never reached for his waistband. While Brown might well have briefly raised his hands in some fashion (see below), the physical evidence in the form of the blood on the ground establishes that he did move forward and that he fell to the ground with his left hand near his waistband. Both of these accounts are further undermined by the witnesses’ physical inability to perceive what they claim to have seen. Witness 101 was hiding behind a vehicle for significant portions of the incident and Witness 127 was looking at her cell phone, attempting to make a video recording of the encounter, and driving her car. Given the deficiencies in the accounts of these two witnesses, federal prosecutors credited the accounts of Witnesses 102, 103, 104, and Wilson and concluded that Brown did in fact reach for and attempt to grab Wilson’s gun, that Brown could have overpowered Wilson, which was acknowledged even by Witness 101, and that Wilson fired his weapon just over his own lap in an attempt to regain control of a dangerous situation.

Under

well-established Fourth Amendment precedent, it is not objectively unreasonable

for a law enforcement officer to use deadly force in response to being physically assaulted by a

subject who attempts to take his firearm. See, e.g., Nelson, 162 F.3d at 990-91 (holding that it

was not objectively unreasonable for officer to shoot at a suspect through a closet door after

suspect attempted to grab his gun, hit him in the head with an asp, and pushed him into closet).

The government therefore cannot meet its burden of establishing probable cause to a grand jury

or proving beyond a reasonable doubt to twelve trial jurors that the shots fired by Wilson at the

SUV were unreasonable. These shots are thus not prosecutable violations of 18 U.S.C. § 242.

2. Wilson’s Subsequent Pursuit of Brown and Shots Allegedly Fired as Brown Was Running Away

The evidence does not support concluding that Wilson shot Brown while Brown’s back was toward Wilson. Witnesses, such as Witness 118, Witness 128, Witness 139 and others, who claim to have seen Wilson fire directly into Brown’s back, gave accounts that lack credibility because the physical evidence establishes that there were no entry wounds to Brown’s back, although there was a wound to the anatomical back of Brown’s right arm, and a graze wound to Brown’s right arm. Also, other witnesses who say that Wilson fired at Brown as he ran have given accounts that are not credible because significant aspects of their statements are irreconcilable with the physical evidence, such as Witness 101 and 127, whose statements are suspect for the reasons noted above. Similarly, Witness 124 claims to have seen Wilson following behind Brown while steadily firing at him. However, Witness 124 dramatically changed her accounts of what she saw between the time of her first statement to the SLCPD and second statement to the FBI. She refused to meet with the federal prosecutors to clarify her varying accounts. Also, her account was dramatically different from that of her husband, Witness 115, who was standing next to her during the incident. Witness 115 stated that he thought he saw Wilson fire once at Brown as he was running away, but other aspects of his

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account lack credibility for the reasons set forth above, i.e. he did not witness significant parts of the shooting and based parts of his account on assumption. Witnesses 128 and 137 initially claimed that Wilson fired at Brown while he was running away, but then acknowledged that they did not see what Wilson and Brown were doing at this point and thus do not know whether Wilson fired at Brown as he was running away. Witnesses 105 and 106 thought they saw Wilson fire at Brown as he was running, but describe seeing Brown hit in the leg and back in a manner that does not match the autopsy findings. Accordingly, there is no credible evidence that establishes that Wilson fired at or struck Brown’s back as Brown fled.
3. Shots Fired After Brown Turned to Face Wilson
The evidence establishes that the shots fired by Wilson after Brown turned around were in self-defense and thus were not objectively unreasonable under the Fourth Amendment. The physical evidence establishes that after he ran about 180 feet away from the SUV, Brown turned and faced Wilson, then moved toward Wilson until Wilson finally shot him in the head and killed him. According to Wilson, Brown balled or clenched his fists and “charged” forward, ignoring commands to stop. Knowing that Brown was much larger than him and that he had previously attempted to overpower him and take his gun, Wilson stated that he feared for his safety and fired at Brown. Again, even Witness 101’s account supports this perception. Brown then reached toward his waistband, causing Wilson to fear that Brown was reaching for a weapon. Wilson stated that he continued to fear for his safety at this point and fired at Brown again. Wilson finally shot Brown in the head as he was falling or lunging forward, after which Brown immediately fell to the ground. Wilson did not fire any additional shots. Wilson’s version of events is corroborated by the physical evidence that indicates that Brown moved forward toward Wilson after he ran from the SUV, by the fact that Brown went to the ground with his left hand at (although not inside) his waistband, and by credible eyewitness accounts.
Wilson’s version is further supported by disinterested eyewitnesses Witness 102, Witness 104, Witness 105, Witness 108, and Witness 109, among others. These witnesses all agree that Brown ran or charged toward Wilson and that Wilson shot at Brown only as Brown moved toward him. Although some of the witnesses stated that Brown briefly had his hands up or out at about waist-level, none of these witnesses perceived Brown to be attempting to surrender at any point when Wilson fired upon him. To the contrary, several of these witnesses stated that they would have felt threatened by Brown and would have responded in the same way Wilson did. For example, Witness 104 stated that as Wilson ran after Brown yelling “stop, stop, stop,” Brown finally turned around and raised his hands “for a second.” However, Brown then immediately balled his hands into fists and “charged” at Wilson in a “tackle run.” Witness 104 stated that Wilson fired only when Brown moved toward him and that she “would have fired sooner.” Likewise, Witness 105 stated that Brown turned around and put his hands up “for a brief moment,” then refused a command from Wilson to “get down” and instead put his hands “in running position” and started running toward Wilson. Witness 105 stated that Wilson shot at Brown only when Brown was moving toward him. These witnesses’ accounts are consistent with prior statements they have given, consistent with the forensic and physical evidence, and consistent with each other’s accounts. Accordingly, we conclude that these accounts are credible.
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Furthermore, there are no witnesses who could testify credibly that Wilson shot Brown while Brown was clearly attempting to surrender. The accounts of the witnesses who have claimed that Brown raised his hands above his head to surrender and said “I don’t have a gun,” or “okay, okay, okay” are inconsistent with the physical evidence or can be challenged in other material ways, and thus cannot be relied upon to form the foundation of a federal prosecution.28 The two most prominent witnesses who have stated that Brown was shot with his hands up in surrender are Witness 101 and Witness 127, both of whom claim that Brown turned around with his hands raised in surrender, that he never reached for his waistband, that he never moved forward toward Wilson after turning to face him with his hands up, and that he fell to the ground with his hands raised. These and other aspects of their statements are contradicted by the physical evidence. Crime scene photographs establish that Brown fell to the ground with his left hand at his waistband and his right hand at his side. Brown’s blood in the roadway demonstrates that Brown came forward at least 21.6 feet from the time he turned around toward Wilson. Other aspects of the accounts of Witness 101 and Witness 127 would render them not credible in a prosecution of Wilson, namely their accounts of what happened at the SUV. Both claim that Wilson fired the first shot out the SUV window, Witness 101 claims that the shot hit Brown at close range in the torso, and both claim that Brown did not reach inside the vehicle. These claims are irreconcilable with the bullet in the SUV door, the close-range wound to Brown’s hand, Brown’s DNA inside Wilson’s car and on his gun, and the injuries to Wilson’s face.
Other witnesses who have suggested that Brown was shot with his hands up in surrender have either recanted their statements, such as Witnesses 119 and 125, provided inconsistent statements, such as Witness 124, or have provided accounts that are verifiably untrue, such as Witnesses 121, 139, and 132. Witness 122 recanted significant portions of his statement by acknowledging that he was not in a position to see what either Brown or Wilson were doing, and who falsely insisted that three police officers pursued Brown and that the shooter was heavy set (in contrast to the slimly-built Wilson). Similar to Witness 128, Witness 122 told Brown’s family that Brown had been shot execution-style. Witness 120 initially told law enforcement that he saw Brown shot at point-blank range as he was on his knees with his hands up. Similar to Witness 138, Witness 120 subsequently acknowledged that he did not see Brown get shot but “assumed” he had been executed while on his knees with his hands up based on “common sense” and what others “in the community told [him.]” There is no witness who has stated that Brown had his hands up in surrender whose statement is otherwise consistent with the physical evidence. For example, some witnesses say that Wilson only fired his weapon out of the SUV, (e.g. Witnesses 128, 101, and 127) or that Wilson stood next to the SUV and killed Brown right there (e.g. Witnesses 139, 132, 120). Some witnesses insist that Wilson shot Brown in the back as he lay on the ground. (e.g. Witnesses 128 and 139). Some witnesses say that Wilson shot Brown and he went to the ground immediately upon turning to face Wilson. (e.g. Witnesses 138, 101, 118, and 127). Some say Wilson went to the ground with his hands raised at right angles. (e.g. Witnesses 138, 118, and 121). Again, all of these statements are contradicted by the physical and forensic evidence, which also undermines the credibility of their accounts of other aspects of the incident, including their assertion that Brown had his hands up in a surrender position when Wilson shot him.
28 The media has widely reported that there is witness testimony that Brown said “don’t shoot” as he held his hands above his head. In fact, our investigation did not reveal any eyewitness who stated that Brown said “don’t shoot.”
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When the shootings are viewed, as they must be, in light of all the surrounding circumstances and what Wilson knew at the time, as established by the credible physical evidence and eyewitness testimony, it was not unreasonable for Wilson to fire on Brown until he stopped moving forward and was clearly subdued. Although, with hindsight, we know that Brown was not armed with a gun or other weapon, this fact does not render Wilson’s use of deadly force objectively unreasonable. Again, the key question is whether Brown could reasonably have been perceived to pose a deadly threat to Wilson at the time he shot him regardless of whether Brown was armed. Sufficient credible evidence supports Wilson’s claim that he reasonably perceived Brown to be posing a deadly threat. First, Wilson did not know that Brown was not armed at the time he shot him, and had reason to suspect that he might be when Brown reached into the waistband of his pants as he advanced toward Wilson. See Loch v. City of Litchfield, 689 F.3d 961, 966 (8th Cir. 2012) (holding that “[e]ven if a suspect is ultimately ‘found to be unarmed, a police officer can still employ deadly force if objectively reasonable.’”) (quoting Billingsley v. City of Omaha, 277 F.3d 990, 995 (8th Cir. 2002)); Reese v. Anderson, 926 F.2d 494, 501 (5th Cir. 1991) (“Also irrelevant is the fact that [the suspect] was actually unarmed. [The officer] did not and could not have known this.”); Smith v. Freland, 954 F.2d 343, 347 (noting that “unarmed” does not mean “harmless) (6th Cir. 1992). While Brown did not use a gun on Wilson at the SUV, his aggressive actions would have given Wilson reason to at least question whether he might be armed, as would his subsequent forward advance and reach toward his waistband. This is especially so in light of the rapidly-evolving nature of the incident. Wilson did not have time to determine whether Brown had a gun and was not required to risk being shot himself in order to make a more definitive assessment.
Moreover, Wilson could present evidence that a jury likely would credit that he reasonably perceived a deadly threat from Brown even if Brown’s hands were empty and he had never reached into his waistband because of Brown’s actions in refusing to halt his forward movement toward Wilson. The Eighth Circuit Court of Appeals’ decision in Loch v. City of Litchfield is dispositive on this point. There, an officer shot a suspect eight times as he advanced toward the officer. Although the suspect’s “arms were raised above his head or extended at his sides,” the Court of Appeals held that a reasonable officer could have perceived the suspect’s forward advance in the face of the officer’s commands to stop as resistance and a threat. As the Court of Appeals explained:
Although [the suspect] had by this time thrown his firearm in the snow, … [the officer] did not observe that action. Instead of complying with [the officer’s] command to get on the ground, [the suspect] turned and moved toward the officer. [Plaintiffs], noting that [the suspect’s] arms were raised above his head or extended at his sides, suggest that [the suspect] was simply trying to find a suitable place to get on the ground, because his truck sat near a tree and snowbank. But even if [the suspect’s] motives were innocent, a reasonable officer on the scene could have interpreted [the suspect’s] actions as resistance. It is undisputed that [the suspect] continued toward [the officer] despite the officer's repeated orders to get on the ground …. Thus, a reasonable officer could believe that [the suspect’s] failure to comply was a matter of choice rather than necessity.
Loch, 689 F.3d 961, 966 (8th Cir. 2012) (emphasis added).
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Were the government to prosecute Wilson, the court would instruct the jury using Loch as a foundation. Given the evidence in this matter, jurors would likely conclude that Wilson had reason to be concerned that Brown was a threat to him as he continued to advance, just as did the officer in Loch.
In addition, even assuming that Wilson definitively knew that Brown was not armed, Wilson was aware that Brown had already assaulted him once and attempted to gain control of his gun. Wilson could thus present evidence that he reasonably feared that, if left unimpeded, Brown would again assault Wilson, again attempt to overpower him, and again attempt to take his gun. Under the law, Wilson has a strong argument that he was justified in firing his weapon at Brown as he continued to advance toward him and refuse commands to stop, and the law does not require Wilson to wait until Brown was close enough to physically assault Wilson. Even if, with hindsight, Wilson could have done something other than shoot Brown, the Fourth Amendment does not second-guess a law enforcement officer’s decision on how to respond to an advancing threat. The law gives great deference to officers for their necessarily split-second judgments, especially in incidents such as this one that unfold over a span of less than two minutes. “Thus, under Graham, we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day.” Smith, 954 F.2d at 347 (6th Cir. 1992). See also Ryburn v. Huff, 132 S. Ct. 987, 991-92 (2012) (courts “should be cautious about second-guessing a police officer's assessment, made on the scene, of the danger presented by a particular situation”); Estate of Morgan v. Cook, 686 F.3d 494, 497 (8th Cir. 2012) (“The Constitution ... requires only that the seizure be objectively reasonable, not that the officer pursue the most prudent course of conduct as judged by 20/20 hindsight vision.” (citing Cole v. Bone, 993 F.2d 1328, 1334 (8th Cir. 1993)) “It may appear, in the calm aftermath, that an officer could have taken a different course, but we do not hold the police to such a demanding standard.” (citing Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir. 1996) (same))). Rather, where, as here, an officer points his gun at a suspect to halt his advance, that suspect should be on notice that “escalation of the situation would result in the use of the firearm.” Estate of Morgan at 498. An officer is permitted to continue firing until the threat is neutralized. See Plumhoff v. Rickard, 134 S.Ct. 2012, 2022 (2014) (“Officers need not stop shooting until the threat has ended”).
For all of the reasons stated, Wilson’s conduct in shooting Brown as he advanced on Wilson, and until he fell to the ground, was not objectively unreasonable and thus not a violation of 18 U.S.C. § 242.
C. Willfulness
Even if federal prosecutors determined there were sufficient evidence to convince twelve jurors beyond a reasonable doubt that Wilson used unreasonable force, federal law requires that the government must also prove that the officer acted willfully, that is, with the purpose to violate the law. Screws v. United States, 325 U.S. 91, 101-107 (1945) (discussing willfulness element of 18 U.S.C. § 242). The Supreme Court has held that an act is done willfully if it was “committed” either “in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite.” Screws, 325 U.S. at 105. The government need not
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show that the defendant knew a federal statute or law protected the right with which he intended to interfere. Id. at 106-07 (“[t]he fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected”); United States v. Walsh, 194 F.3d 37, 52-53 (2d Cir. 1999) (holding that jury did not have to find defendant knew of the particular Constitutional provision at issue but that it had to find intent to invade interest protected by Constitution). However, we must prove that the defendant intended to engage in the conduct that violated the Constitution and that he did so knowing that it was a wrongful act. Id.
"[A]ll the attendant circumstance[s]" should be considered in determining whether an act was done willfully. Screws, 325 U.S. at 107. Evidence regarding the egregiousness of the conduct, its character and duration, the weapons employed and the provocation, if any, is therefore relevant to this inquiry. Id. Willfulness may be inferred from blatantly wrongful conduct. See id. at 106; see also United States v. Reese, 2 F.3d 870, 881 (9th Cir. 1993) ("Intentionally wrongful conduct, because it contravenes a right definitely established in law, evidences a reckless disregard for that right; such reckless disregard, in turn, is the legal equivalent of willfulness."); United States v. Dise, 763 F.2d 586, 592 (3d Cir. 1985) (holding that when defendant invades personal liberty of another, knowing that invasion is violation of state law, defendant has demonstrated bad faith and reckless disregard for federal constitutional rights). Mistake, fear, misperception, or even poor judgment do not constitute willful conduct prosecutable under the statute. See United States v. McClean, 528 F.2d 1250, 1255 (2d Cir. 1976) (inadvertence or mistake negates willfulness for purposes of 18 U.S.C. § 242).
As discussed above, Darren Wilson has stated his intent in shooting Michael Brown was in response to a perceived deadly threat. The only possible basis for prosecuting Wilson under section 242 would therefore be if the government could prove that his account is not true – i.e., that Brown never assaulted Wilson at the SUV, never attempted to gain control of Wilson’s gun, and thereafter clearly surrendered in a way that no reasonable officer could have failed to perceive. Given that Wilson’s account is corroborated by physical evidence and that his perception of a threat posed by Brown is corroborated by other eyewitnesses, to include aspects of the testimony of Witness 101, there is no credible evidence that Wilson willfully shot Brown as he was attempting to surrender or was otherwise not posing a threat. Even if Wilson was mistaken in his interpretation of Brown’s conduct, the fact that others interpreted that conduct the same way as Wilson precludes a determination that he acted with a bad purpose to disobey the law. The same is true even if Wilson could be said to have acted with poor judgment in the manner in which he first interacted with Brown, or in pursuing Brown after the incident at the SUV. These are matters of policy and procedure that do not rise to the level of a Constitutional violation and thus cannot support a criminal prosecution. Cf. Gardner v. Howard, 109 F.3d 427, 430–31 (8th Cir. 1997) (violation of internal policies and procedures does not in and of itself rise to violation of Constitution).
Because Wilson did not act with the requisite criminal intent, it cannot be proven beyond reasonable doubt to a jury that he violated 18 U.S.C.§ 242 when he fired his weapon at Brown.
VI. Conclusion
For the reasons set forth above, this matter lacks prosecutive merit and should be closed.
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 U.S. Department of Justice Civil Rights Division

Office of the Assistant Attorney General

Washington, D.C. 20530
January 26, 2016

Mayor James W. Knowles III Ferguson City Councilmembers 110 Church Street Ferguson, Missouri 63135
Re: Agreement to Resolve Department of Justice Investigation
Dear Members of the Ferguson City Council:
We understand that on January 27, 2016, the City of Ferguson intends to publicly release the Agreement it has negotiated with the United States Department of Justice Civil Rights Division, prior to voting on whether to approve it. Attached is a copy of the Agreement as fully and finally negotiated by the City and the Department of Justice. The Agreement is meant to resolve the United States’ investigation of the City’s police department and municipal court and ensure that the measures necessary for constitutional policing in Ferguson are implemented. If approved by the City Council, the City and the Department of Justice will file the Agreement with the federal district court in St. Louis and jointly request that the Agreement be entered as an order of the court. The United States intends to seek a fairness hearing where members of the public would have the ability to provide comment to assist the court’s determination of whether the Agreement is fair, adequate, and reasonable. The City has stated also that it intends to vote on February 9 on whether to accept this Agreement as it has been negotiated.
We would like to express our appreciation for the efforts the City has made to work cooperatively with us to resolve this matter and ensure that Ferguson’s police and court practices are constitutional. The City’s negotiating team, consisting of Mayor Knowles and Councilmembers Bell and Byrne, has been thoughtful, creative, and resolute in arguing for terms that it believed necessary to address the City’s interests, including its interests in effective policing and in assuring fair and lawful treatment of all people living in, working in, or passing through Ferguson.

As has long been established under law, constitutional protection cannot be denied on the grounds of cost. With this in mind, the negotiating team and the Department of Justice have worked to ensure that police and court reform would be accomplished in a timely, meaningful, and cost-effective way. The Department of Justice also made significant efforts to provide free technical assistance throughout our investigation and negotiation, and to find resources that could be provided to assist the City in meeting the Agreement’s requirements.
Through these efforts, the City and the Department of Justice have been able to reach an Agreement about which, we believe, the entire Ferguson community has reason to be proud. The diligent implementation of this Agreement will ensure that police and court services in Ferguson are provided in a manner that fully promotes public safety, respects the fundamental rights of all Ferguson residents, and makes policing in Ferguson safer and more rewarding for officers. The Agreement also will ensure that the City’s stated commitment to refocusing police and municipal court practices on public safety, rather than revenue generation, takes root and will not be undone.
This Agreement will:
 Create a community engagement strategy that requires meaningful engagement between Ferguson police officers and all segments of the Ferguson community, with a focus on engagement with groups and individuals throughout Ferguson that have not had strong or positive relationships with the Ferguson Police Department (“FPD”) or the City, including the City’s youth and apartment tenants;
 Establish long-term programs that promote and foster positive police-youth interactions, to rebuild trust between those two groups;
 Require revisions to the City’s municipal code to ensure it comports with the Constitution and is not used in a manner that harms Ferguson’s most vulnerable residents;
 Ensure that officers are provided the training, supervision, and support they need to police effectively, lawfully, ethically, and safely;
 Require implicit bias-awareness training of all court staff and FPD personnel, including supervisors and unsworn officers;
 Ensure that FPD’s stop, search, and arrest practices adhere to the Fourth Amendment and do not discriminate on the basis of race or other protected characteristics;
 Protect all individuals’ First Amendment rights, including their right to record public police activity and engage in lawful protest;
 Reorient Ferguson’s use-of-force policies toward de-escalation and avoiding force— particularly deadly force—except where necessary, consistent with a full recognition of the sanctity of life;
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 Recognize that policing is a difficult, high-stress occupation, and ensure that officers and their families have the support services they need;
 Facilitate recruitment and retention of a diverse work force consisting of the highest quality officers;
 Require FPD to implement a robust accountability system that takes misconduct complaints seriously and holds its officers to high standards;
 Require FPD to collect the data on its own operations needed for it to continue to learn and improve upon its police and court practices;
 Ensure that the City’s municipal court respects individuals’ due process and equal protection rights, by eliminating unlawful practices concerning the imposition and enforcement of fines and fees; and
 Require the selection of an independent monitor who not only will review and report publicly on the City’s implementation of the Agreement, but will also provide assistance to the City on how to do so effectively.
In sum, the Agreement fully addresses the breadth of the systemic deficiencies our investigation identified, taking into account the steps the City has taken already to address those deficiencies. In many respects, this Agreement simply encapsulates the elements that any small- to mediumsize police department can and should put in place to ensure that its officers conduct themselves in a manner that is constitutional and effective, and that builds trust and genuine partnerships in diverse communities. In other respects, the requirements of the Agreement are needed because of the specific unlawful conduct that our investigation identified. The length and depth of the Agreement reflects the parties’ belief that a detailed agreement will better enable full implementation of these provisions, and help ensure that the City has clear expectations from the outset about what it is required to do to reform its police department and municipal court.
In addition, the Agreement acknowledges that Ferguson has made some positive changes to its law enforcement practices since the Department of Justice’s findings were released last March. Given the nature and scope of the deficiencies we identified, the recency of these efforts, and the time it may take to correct the deficiencies, the Agreement recognizes that necessary reforms must be memorialized in a court-enforceable and independently monitored agreement to ensure they are fully implemented.
Finally, the Agreement leaves the City in control of its police department and municipal court. Any transfer of authority would not eliminate or relieve the obligation to ensure constitutional policing and court services in Ferguson. Thus, a transfer of authority would not end this matter.
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We understand that, after allowing for public comment, the City Council intends to vote on whether to approve the Agreement and, consistent with the City Charter, can do so by February 9. We remain hopeful that the City Council will approve the Agreement on that date, and that we will not have to resort to contested litigation, given that this would delay implementation of much needed police and court reform, and divert substantial resources away from the reform effort. If you have any questions or would like to discuss this matter, please contact the Department’s negotiating team from the Special Litigation Section.
Sincerely,
Vanita Gupta Principal Deputy Assistant Attorney General
cc: De’Carlon Seewood Ferguson City Manager Dan K. Webb Jared L. Hasten Winston & Strawn LLP Stephanie E. Karr Ferguson City Attorney Curtis, Heinz, Garrett & O’Keefe P.C.
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

THE CITY OF FERGUSON,

)

)

Defendant.

)

)

____________________________________)

CASE NO. ____________ JUDGE:

CONSENT DECREE

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TABLE OF CONTENTS

I. II. III.
IV. V. VI. VII.
VIII.
IX.
X.

INTRODUCTION .............................................................................................. 1
BACKGROUND AND GENERAL PROVISIONS ........................................ 1
COMMUNITY POLICING AND ENGAGEMENT ...................................... 4
A. Community Engagement ............................................................................... 4 B. Neighborhood Policing Steering Committee ................................................ 6 C. Ferguson Youth Advisory Board and Apartment Neighborhood Group ...... 7 D. Community-Oriented and Problem-Solving Policing ................................... 7 E. Community Mediation Program.................................................................... 8 F. Ongoing Assessment and Improvement........................................................ 9
REFORM OF THE FERGUSON MUNICIPAL CODE ................................ 9
POLICIES AND TRAINING .......................................................................... 11
A. Policies Generally ....................................................................................... 11 B. Training Generally ...................................................................................... 12
BIAS-FREE POLICE AND COURT PRACTICES ..................................... 16
A. Requirements of Bias-Free Policing ........................................................... 17 B. Ongoing Assessment and Improvement...................................................... 18
VOLUNTARY CONTACTS, STOPS, SEARCHES, CITATIONS, AND ARRESTS.......................................................................................................... 19
A. Voluntary Contacts: Social Contacts & Non-Custodial Interviews ........... 20 B. Investigatory Stops and Detentions ............................................................. 20 C. Searches....................................................................................................... 21 D. Citations and Arrests ................................................................................... 22 E. Stop Orders, or “Wanteds” .......................................................................... 23 F. Supervision .................................................................................................. 24 G. Ongoing Assessment and Improvement...................................................... 26
FIRST AMENDMENT PROTECTED ACTIVITY ..................................... 26
A. Right to Observe and Record ...................................................................... 27 B. Public Protests and Demonstrations ............................................................ 28 C. Retaliation for First Amendment Activity Prohibited ................................. 29 D. Supervision of First Amendment Related Arrests and Seizures ................. 29 E. Ongoing Assessment and Improvement...................................................... 30
FORCE .............................................................................................................. 30
A. General Use-of-Force Requirements........................................................... 31 B. Weapon-Specific Requirements .................................................................. 34 C. Use of Force in Ferguson Jail...................................................................... 40 D. Use-of-Force Reporting and Investigation .................................................. 40 E. Ongoing Assessment and Improvement...................................................... 45
CRISIS INTERVENTION .............................................................................. 46
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XI. XII. XIII. XIV. XV. XVI. XVII.

A. Crisis Intervention Coordinator................................................................... 46 B. Specialized Crisis Intervention Officers ..................................................... 47 C. Crisis Intervention Requirements ................................................................ 47 D. Ongoing Assessment and Improvement...................................................... 48
SCHOOL RESOURCE OFFICER PROGRAM........................................... 48
A. Revision of SRO Program and Training and Qualifications of SROs ........ 49 B. SRO Non-Involvement in School Discipline .............................................. 50 C. Minimizing School Arrests and Force ........................................................ 50 D. SRO Supervision and Evaluation ................................................................ 51 E. Ongoing Assessment and Improvement...................................................... 52
BODY-WORN AND IN-CAR CAMERAS .................................................... 52
A. Body-Worn and In-Car Camera Requirements ........................................... 53 B. Supervisory Responsibilities Related to Body-Worn and In-Car
Cameras ....................................................................................................... 55 C. Storage and Public Availability of Recordings ........................................... 56 D. Ongoing Assessment and Improvement...................................................... 57
SUPERVISION ................................................................................................. 57
A. Supervisory Character and Duties ............................................................... 57 B. Supervisor Staffing and Officer Assignment to Supervisors ...................... 58 C. Early Intervention System ........................................................................... 59 D. Ongoing Assessment and Improvement...................................................... 62
OFFICER ASSISTANCE AND SUPPORT................................................... 62
A. Support Services for Officers and Their Families....................................... 62 B. Officer Support During Public Demonstrations and Periods of Civil
Unrest .......................................................................................................... 63 C. Ongoing Assessment and Improvement...................................................... 64
RECRUITMENT.............................................................................................. 64
A. Recruitment Plan ......................................................................................... 64 B. Ferguson Police Department Academy Assistance Program ...................... 66 C. Background Investigation and Screening System ....................................... 66 D. Ongoing Assessment and Improvement...................................................... 67
PERFORMANCE EVALUATIONS AND PROMOTIONS........................ 68
A. Performance Evaluations............................................................................. 68 B. Promotions .................................................................................................. 69 C. Ongoing Assessment and Improvement...................................................... 70
SUPPLEMENTAL RECRUIT AND IN-SERVICE TRAINING ................ 71
A. Information Regarding this Agreement....................................................... 71 B. Community Policing, Critical Thinking, and Problem-Solving Policing
Training ....................................................................................................... 71 C. Training to Promote Bias-Free Policing...................................................... 72

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D. Stop, Search, and Arrest Training ............................................................... 72 E. First Amendment Training .......................................................................... 73 F. Use-of-Force Training................................................................................. 73 G. Crisis Intervention Training ........................................................................ 75 H. School Resource Officer Training............................................................... 75 I. Body-Worn and In-Car Camera Training ................................................... 76 J. Supervisor Training..................................................................................... 76 K. Officer Wellness Training ........................................................................... 77 L. Accountability Training .............................................................................. 78 XVIII. MUNICIPAL COURT REFORM .................................................................. 78 A. Ensuring that Municipal Code Enforcement is Driven by Public Safety.... 78 B. Comprehensive Amnesty Program.............................................................. 79 C. Revision of Ferguson Municipal Court Practices ....................................... 80 D. Ongoing Assessment and Improvement...................................................... 88 XIX. ACCOUNTABILITY ....................................................................................... 89 A. Principles of Accountability........................................................................ 89 B. Misconduct Complaint Intake, Investigation and Adjudication.................. 90 C. Internally Discovered Violations of Policy that Do Not Involve
Members of the Public ................................................................................ 97 D. Community-Centered Mediation of Misconduct Complaints ..................... 97 E. Ongoing Assessment and Improvement...................................................... 98 XX. CIVILIAN OVERSIGHT ................................................................................ 99 XXI. DATA COLLECTION, REPORTING, AND TRANSPARENCY............ 102 A. Data Collection.......................................................................................... 102 B. Public Availability of Policies and Reports .............................................. 102 C. Annual Report ........................................................................................... 102 XXII. MONITORING, COMPLIANCE ASSESSMENT, AND ENFORCEMENT........................................................................................... 103 A. Independent Monitor ................................................................................. 103 B. Selection and Compensation of the Monitor............................................. 104 C. Duties of the Monitor ................................................................................ 105 D. Monitor and DOJ Access and Confidentiality .......................................... 116 E. City of Ferguson Consent Decree Coordinator ......................................... 118 F. City of Ferguson Data Collection, Self-Assessment, and Report ............. 119 G. Court Jurisdiction, Modification of this Agreement, and Enforcement .... 119 H. Termination of this Agreement ................................................................. 120 XXIII. DEFINITIONS................................................................................................ 121
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I. INTRODUCTION The United States of America and the City of Ferguson (collectively, “the Parties”) enter into this Consent Decree (“Agreement”) with the shared recognition that the ability of a police department to protect the community it serves is only as strong as the relationship it has with that community. The provisions of this Agreement are meant to ensure protection of the constitutional and other legal rights of all members of the community, improve Ferguson’s ability to effectively prevent crime, enhance both officer and public safety, and increase public confidence in the Ferguson Police Department (FPD). To achieve these goals, the City of Ferguson (“City”) agrees to continue to change how FPD polices, and how it enforces the Ferguson Municipal Code and resolves municipal charges. This Agreement sets forth terms and requirements for the City and FPD to continue to reorient their approach to law enforcement to focus on community engagement and collaborative partnerships with groups and individuals throughout Ferguson, including those segments of the community that have not previously had strong or positive relationships with FPD or the City. The Agreement is designed also to increase transparency, strengthen accountability measures, and increase community and officer confidence that these systems are fair and consistent. The Agreement further includes requirements regarding the training, supervision, and direction necessary to police effectively and in a manner that builds community trust and improves officer safety and morale. The Parties also recognize that FPD officers often work under difficult circumstances, risking their physical safety and well-being for the public good. For these reasons, and noting the general principle that settlements are to be encouraged, particularly settlements between government entities, the Parties agree to implement this Agreement under the following terms and conditions.
II. BACKGROUND AND GENERAL PROVISIONS 1. On September 4, 2014, the United States Department of Justice (DOJ) notified the City that it was initiating an investigation of FPD for an alleged pattern or practice of unlawful misconduct, pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”); the anti-discrimination provisions of the Omnibus Crime Control
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and Safe Streets Act of 1968, 42 U.S.C. § 3789d (“Safe Streets Act”); and Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d (“Title VI”).
2. DOJ issued a 102-page written report of its findings (“Report”) on March 4, 2015. The Report documents DOJ’s finding of a number of patterns or practices of unconstitutional conduct and details DOJ’s concerns about a number of Ferguson’s police and court policies and practices.
3. While the City does not agree with every finding or opinion referenced in the Report, the City desires to focus its attention and resources on implementing a better communityoriented policing model and to become an exemplar of modern community-oriented policing for the entire region and for other cities of similar size.
4. The City’s desire and commitment to this goal is demonstrated by the actions that the City has already undertaken, especially since August 2014. The City has been willing, and remains willing, to continue such actions and to cooperate with DOJ to fulfill its aspiration to become an exemplar of modern community-oriented policing. DOJ acknowledges the good faith of Ferguson in trying to address actions that are needed to promote integrity in its police department and municipal court to ensure constitutional policing and court practices.
5. This Agreement is effectuated pursuant to the authority granted to DOJ under Section 14141 to seek declaratory and equitable relief where DOJ has reasonable cause to believe that there is a pattern or practice of conduct by law enforcement officers that deprives individuals of rights, privileges, or immunities secured by the Constitution or federal law.
6. Nothing in this Agreement is intended to limit the lawful authority of the Ferguson City Council or the lawful authority of the Chief of Police to oversee the operations of FPD.
7. Nothing in this Agreement, the United States’ Complaint, or the negotiation process shall be construed as an admission or evidence of liability under any federal, state, or municipal law including, but not limited to, 42 U.S.C. § 1983. Nor is the City’s entry into this Agreement an admission by the City, FPD, or any officer or employee of either entity that it has engaged in any unconstitutional, illegal, or otherwise improper activities or conduct. The City’s entry into this Agreement is not an admission of any of the findings or conclusions contained in DOJ’s March 4, 2015 Report.
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8. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 14141 and 42 U.S.C. § 3789d. Venue is proper in the Eastern District of Missouri pursuant to 28 U.S.C. § 1391, because the Defendant is located in, and the claims arose in, the Eastern District of Missouri.
9. The Parties have determined that this Agreement, rather than costly and protracted litigation, is the most effective means to resolve all issues between DOJ and the City.
10. This Agreement resolves all claims in the United States’ Complaint filed in this case. This Agreement also constitutes a full and complete settlement of any and all civil claims the United States may have as of the Effective Date against the City and its officers, employees, or agents, regarding any alleged pattern or practice of conduct by FPD officers and other City employees in carrying out the responsibilities referenced in the Report or the United States’ Complaint.
11. This Agreement shall constitute the entire integrated agreement of the Parties. No prior drafts or prior or contemporaneous communications, oral or written, shall be relevant or admissible for purposes of determining the meaning of any provisions herein in any litigation or any other proceeding.
12. This Agreement is binding upon all Parties hereto, by and through their officials, agents, employees, assigns, and successors. If the City establishes, reorganizes, or contracts with a government agency or entity whose function includes overseeing, regulating, accrediting, investigating, or otherwise reviewing or assuming the operations of FPD or any aspect thereof, including the Municipal Court, the City agrees to ensure these functions are consistent with the terms of this Agreement and shall incorporate the terms of this Agreement into the functions of the government agency or contracting entity as necessary to ensure consistency.
13. This Agreement is enforceable only by the Parties. No person or entity is intended to be a third-party beneficiary of the provisions of this Agreement for purposes of any civil, criminal, or administrative action. Accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement.
14. In the event of any public-records request for drafts of this Agreement or communications among the Parties leading to this Agreement, the Court will maintain continuing jurisdiction over any such request. Further, the Parties may assert in any action, motion,
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subpoena, or request for disclosure of information the ongoing applicability of a settlement privilege to all such drafts or communications among the Parties leading to this Agreement. The assertion of such privilege would be decided by the court with jurisdiction over the action, motion, subpoena, or request for disclosure.
15. This Agreement is not intended to limit or expand the right of any person or organization to seek relief against the City, FPD, or any officer or employee thereof, for their conduct or the conduct of FPD officers; accordingly, it does not alter legal standards governing any such claims by third parties, including those arising from city, state, or federal law. This Agreement does not expand, nor will it be construed to expand, access to any City, FPD, or DOJ documents, except as expressly provided by this Agreement, by persons or entities other than DOJ, the City, FPD, and the Monitor.
16. The City is responsible for providing necessary support and resources to FPD to enable FPD to fulfill its obligations under this Agreement, and as otherwise necessary to ensure that the requirements of this Agreement are fully implemented and sustained.
17. In the interest of avoiding costly and protracted litigation, the City, and its officials, agents, employees, and successors, by and through the City Council, agrees to entry of this injunction from engaging in conduct that deprives persons of rights, privileges, or immunities secured or protected by the laws of the United States.
III. COMMUNITY POLICING AND ENGAGEMENT
18. Strong community partnerships and frequent positive interactions between police and members of the public make policing more effective, increase public confidence in law enforcement, and can reduce bias. To promote and strengthen community partnerships and positive interactions between officers and Ferguson residents, the City and FPD will increase opportunities for community engagement and will continue to adopt a policing approach that is community-oriented and based on problem solving principles as described below.
A. Community Engagement
19. Within 180 days of the Effective Date, the City will begin to host and participate in a series of small-group structured dialogues, arranged and led by a qualified neutral facilitator, between police officers and community members and groups, with an emphasis on community members and groups who previously have not had strong or positive relationships with FPD or
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the City. Each FPD police officer will participate in at least one series of meetings, with each series consisting of at least three structured, facilitated dialogues between the same set of officers and community members. FPD officers will make up at least one-third and up to one-half of each dialogue group.
20. Within 180 days of the Effective Date, the City and FPD will develop and begin implementing an FPD community-engagement plan for creating opportunities for routine and frequent positive interactions between officers and community members. The plan will be developed in consultation with the Neighborhood Policing Steering Committee to be established pursuant to paragraph 21 of this Agreement; Ferguson’s Civilian Review Board; representative individuals and groups within Ferguson; and community stakeholders who can provide unique perspectives and assistance, such as local colleges and universities. The community engagement plan will:
a. Provide for all sworn representatives of FPD to actively participate in neighborhood and community meetings and other events designed to bring a diverse group of community members and police personnel together. The plan will address the number of meetings and events to be attended by sworn personnel and shall ensure that all sworn officers are scheduled for certain meetings and events throughout the year. In no event shall this provision be construed to require that all sworn officers must attend any particular meeting or event. The plan will indicate the number and types of meetings and events to be attended on a regular basis;
b. Establish or provide for participation in a variety of long-term programs that promote and foster positive police-youth interactions. Potential programs include activities with the Ferguson Youth Initiative and Ferguson Youth Advisory Board and local athletic, art, or music programs;
c. Provide for the continuation of an FPD Explorer Program for youth in Ferguson, ages 12 to 21 years, to learn police-related skills and assist with community events and outreach; and
d. Place emphasis on creating opportunities for positive interactions with communities of color and residents of Ferguson’s apartment complexes.
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B. Neighborhood Policing Steering Committee
21. Within 90 days of the Effective Date, the City will begin community meetings to solicit volunteers and community members to serve on the Neighborhood Policing Steering Committee (NPSC), which shall perform a separate function than the Civilian Review Board (CRB) already established by the City and addressed in Section XX. Within 180 days of the Effective Date, the City will establish the NPSC. The NPSC will serve as a meaningful, but not exclusive, mechanism through which a diverse and broadly representative set of members of the Ferguson community can provide input to FPD and the City on law enforcement issues. The NPSC will provide input and be instrumental in developing the City’s Neighborhood Policing Plan. The NPSC will specifically perform the following advisory responsibilities:
a. Assist in the development of the community-engagement plan described in paragraph 20 above;
b. Advise FPD on strategies, training, and policies to improve community relations, implementation of the Neighborhood Policing Plan described in paragraph 26, and promotion and improvement of bias-free policing;
c. Coordinate with neighborhood groups and work with FPD to establish and carry out public safety priorities;
d. Provide recommendations to the City Council with regard to reform of, and amendments to, the Ferguson Municipal Code;
e. Provide input in the hiring and recruitment process for new officers, including lateral hires, as set forth in Section XV; and
f. Provide the City with input regarding the implementation of this Agreement, and provide the community with information about the status of implementation.
The agreement to give the NPSC these advisory responsibilities in no way changes or limits the advisory responsibilities of the CRB. Both the NPSC and the CRB are expected to participate in many of the advisory duties described above.
22. Within 180 days of the Effective Date, the City agrees to enact any City ordinances necessary to establish the NPSC and agrees to either: (a) select, pursuant to selection protocols developed in consultation with DOJ and with input of the broader Ferguson community, members of the NPSC who are representative of the diverse communities served by FPD; or (b) not limit the number of participants on the NPSC and allow attendees and volunteers
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to participate and choose the specific category to which such attendees and volunteers would like to devote time.
23. The City will, in consultation with FPD and the NPSC, develop and implement policies to receive, consider, respond to, and act upon NPSC recommendations in a fully transparent and timely manner. The City will designate a City employee to provide administrative support necessary for the NPSC to effectively perform its advisory function.
C. Ferguson Youth Advisory Board and Apartment Neighborhood Group
24. The City will continue the Ferguson Youth Advisory Board that was established in 2011. The City will revise as necessary the enabling ordinances to ensure that the Ferguson Youth Advisory Board provides input to FPD and the City on law enforcement issues, especially issues that have a particular impact on young people, such as FPD’s School Resource Officer Program, FPD’s pedestrian stop practices, and the selection and implementation of youthfocused FPD community engagement programs set out in paragraph 20 above.
25. Within 180 days of the Effective Date, the City agrees to assist with the establishment of a Neighborhood Association in each of Ferguson’s apartment complexes, including, for example, Canfield Green, Parkridge, and Northwinds. The City will work with these apartment complex Neighborhood Associations in the same manner that the City consults and works with other Neighborhood Associations, such as Old Ferguson East, Jeske Park, and Old Ferguson West.
D. Community-Oriented and Problem-Solving Policing
26. Building on its ongoing development of a Neighborhood Policing Plan and the community engagement efforts outlined above, within one year of the Effective Date, the City will develop an FPD crime-prevention plan and a community-policing plan to ensure that policing is oriented around community priorities and partnerships, and based on problem-solving principles.
27. FPD’s Community-Policing Plan will include a commitment to, and timelines for, implementing within two years, Ferguson’s “Neighborhood Policing Plan: A Police Community Partnership,” along with the additional elements set out in this section.
28. FPD will conduct monthly command staff meetings to discuss and analyze significant crimes, crime trends, policing complaints, neighborhood quality of life issues, as well as community priorities for policing, and to develop strategies for working with community
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members to address these issues. FPD commanders also will discuss and assess progress and identify needed and available resources to reduce crime and improve police-community relationships.
29. FPD will structure individual officer patrol areas around specific neighborhood boundaries, and, through supervision and evaluation, will encourage direct officer-resident communication. FPD will assign officers to specific areas to allow for neighborhood problemsolving projects, and will assign officers to patrol such areas for a minimum of one year. FPD also will require officers to:
a. Periodically patrol via walking and/or bicycle patrols in their assigned patrol area; b. Provide residents in their assigned area with their business email and business
telephone number, and respond to calls and emails directed to such officers from residents in their assigned area within a reasonable time period; and c. Attend community meetings, as scheduled, within the officers’ assigned patrol area. 30. FPD will revise its current shift schedules and deployment to better support a community-oriented approach to policing, and will post officer patrol area assignments on the FPD website. 31. FPD will timely collect, analyze and disseminate public crime data for each patrol area or other geographic area, as feasible and appropriate. E. Community Mediation Program
32. Within two years of the Effective Date, the City will affiliate with the Community Mediation Services of St. Louis to conduct neighborhood mediations that promote lasting resolutions of appropriately selected disputes among community members, while reducing the need for involvement in the criminal justice system. DOJ will approve that affiliation to ensure it comports with best practices in community meditation and the requirements below.
33. Within 180 days of the Effective Date, the City will, in consultation with members of the Ferguson community and the Monitor, develop a plan for providing neighborhood mediations in Ferguson. The plan will include an implementation timeline for interim steps, as appropriate, such as the retention of an administrator and volunteers; training; and initiation of mediations.
34. This neighborhood mediation program will:
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a. Support mediation at all stages of the dispute, from early-intervention to intervention after charges have been filed, as a diversion from the criminal justice system;
b. Be administered by an individual with experience in neighborhood mediation or the administration of mediation programs, including the selection and training of mediators (this individual may also administer the misconduct mediation program required by Section XIX);
c. Use mediators that reflect the diversity of, and come from the communities served by, the program;
d. Ensure that mediators are trained consistently with best practices; e. Have a screening tool to ensure that mediation participants can speak for
themselves in the mediation without fear of retaliation; and f. Have quality assurance mechanisms to ensure that all components of the program,
including volunteer participants, are operating effectively and consistently with best practices. F. Ongoing Assessment and Improvement
35. Within one year of the Effective Date, the City will develop protocols for regularly, and at least annually, conducting cost-feasible data-driven and qualitative assessments to measure the level and impact of its community engagement and community policing initiatives. These assessments will be designed to ensure community-based initiatives are being implemented effectively and appropriately. As part of the assessment process, the City and FPD will identify deficiencies and opportunities for improvement, implement appropriate corrective action and improvement measures, and document measures taken.
IV. REFORM OF THE FERGUSON MUNICIPAL CODE
36. To ensure constitutional enforcement of the Ferguson Municipal Code (“Code”) and further promote community-oriented policing, the City agrees to revise the Code and ensure that it comports with the United States Constitution and other laws; establishes clearly defined municipal offenses and appropriate penalties for violations; and adequately protects the public health, safety, and welfare. To achieve these outcomes, the City will implement the requirements below.
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37. The City has repealed Code Section 13-58 (“Failure to Appear Upon Arrest or Summons”); Section 13-60 (authorizing a fee for “Withdrawal of Complaint”); Section 1-16 (providing that individuals who fail to pay a fine or costs imposed for a municipal violation shall be imprisoned one day for every ten dollars of any such unpaid fine); and Section 1-17 (which pertained to imprisonment for failure to pay fine or cost of prosecution to include work). The City agrees that these provisions of the Ferguson Municipal Code will remain repealed and will not be replaced with any similar ordinance.
38. The City has prepared amendments, attached to this Agreement (see Attachment A), to the following sections of the Municipal Code. To the extent that the City has not yet adopted such amendments as of the Effective Date of the Agreement, the City agrees to do so within 30 days of the Effective Date.
a. Sections 13-26, 13-52, 13-61, 13-63, 13-68, and 13-70(2) and (3), regarding the administration of the Ferguson Municipal Court;
b. Sections 29-16, the “Failure to Comply with Order of Police Officer” ordinance; c. Sections 1-15 and 44-15 regarding available penalties; d. Section 7-145.1, “Occupancy Permit;” and e. Section 44-339, “Use of Right Half of Crosswalks,” Section 44-341, “Crossing at
Right Angles,” and Section 44-344, “Manner of Walking Along Roadway,” each of which will be repealed. 39. The City agrees to make any additional revisions to the Code necessary to enable the City to comply with this Agreement and the law. Where the Parties do not agree whether a revision is required, the Parties may seek resolution by the Court. 40. Within 120 days of the Effective Date, the City agrees to develop and implement a plan for the comprehensive reassessment and revision of remaining Code provisions in order to ensure that they are consistent with the United States Constitution and other laws and provide clear and appropriate guidance to the public and law enforcement officers. The reassessment and revision process will also be aimed at ensuring that the Code is designed and enforced in a manner that is focused on protecting public health, safety, and welfare. To help ensure that the Code’s design and enforcement are not unnecessarily burdensome on members of the Ferguson community and furthers public health, safety, and welfare, the City will conduct outreach meetings, including holding and attending meetings in locations throughout Ferguson, to hear the
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views of persons within the community, and will consider and incorporate these views into its code revisions where appropriate.
V. POLICIES AND TRAINING 41. To ensure that officers have the knowledge, skills, and direction necessary to police constitutionally, effectively, and in a manner that promotes both officer and public safety, the City agrees to continue to enhance its policies and increase the quality and scope of training provided to FPD officers and other FPD employees. As set forth in this section, the City agrees to develop systems for policy and training development and delivery that will generate policies and training that are current, responsive to identified needs, and effective. The City agrees to implement policies that reflect its commitment to community policing, procedural justice, and bias-free policing, and to support these directives through effective training for recruits, as well as for new and experienced officers, that reflects these same principles. Substantive training requirements for in-service and supplemental basic training are set out in Section XVII below. A. Policies Generally 42. The City agrees to incorporate the requirements of this Agreement into FPD and City policies and procedures as appropriate. These policies and procedures will fully incorporate the terms of this Agreement, be consistent with best practices, and comply with applicable law. The City agrees that its policies and procedures will be plainly written, logically organized, and use terms that are clearly defined. Unless otherwise noted, the City will seek to develop and implement all policies and procedures required by this Agreement within one year of the Effective Date, and will ensure the development and implementation of all such policies and procedures within two years of the Effective Date. 43. The City agrees to ensure that officers from all varying ranks and units have a meaningful opportunity to review and comment on new or revised policies and procedures. 44. The City agrees to submit all policies, procedures, protocols, plans and other administrative orders or directives related to this Agreement, as well as any proposed revision to such materials, to the Monitor and DOJ for review and approval prior to publication and implementation. Approval by the Monitor and DOJ will be based upon consistency with this Agreement, best practices in the relevant area, and applicable law.
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45. The City agrees to review each policy or procedure within one year of its implementation, and annually thereafter, to ensure that the policy or procedure provides effective direction to FPD personnel and remains consistent with this Agreement, best practices in the relevant area, and current law. The City agrees to review and revise policies and procedures as necessary upon notice of a significant policy deficiency during audits or reviews.
46. The City agrees to maintain a complete, up-to-date manual of all FPD policies and procedures that is organized and maintained in a manner that makes it easily accessible and clear to officers, employees, and others. Officers and employees will have access to the manual in hard copy form, and in a readily usable electronic format (e.g., through an FPD intranet system accessible within the mobile data computers of FPD officers). Revisions and updates to FPD policies and procedures will be incorporated into the manual.
47. The City agrees to ensure that changes in relevant case law and statutes are disseminated to relevant FPD personnel in a timely manner and incorporated, as appropriate, into FPD policies, procedures, and training.
B. Training Generally
48. Unless otherwise noted, the training required under this Agreement, as set out in this section and in Section XVII, and training on all policies revised or developed pursuant to this Agreement, will begin within 90 days of the Effective Date and be fully delivered within two years of the Effective Date. The parties acknowledge that FPD has already undertaken training on certain topics described in this Section and in Section XVII.
1. Training Committee and Plan
49. Within 180 days of the Effective Date, FPD agrees to establish a Training Committee that will include representatives from FPD and the Neighborhood Policing Steering Committee. The Training Committee may consult with additional training and subject matter experts as the Training Committee deems necessary.
50. Within 180 days of the Effective Date, FPD, in coordination with the Training Committee, will develop a schedule, to be approved by the Monitor and DOJ, for delivering all training specifically required by the provisions of this Agreement.
51. Within one year of the Effective Date, the Training Committee will develop a written Training Plan for supplementing FPD recruits’ academy training; enhancing FPD’s field
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training with a revised Police Training Officer program; and implementing comprehensive inservice training for officers and other City and FPD employees. The Training Plan will be developed in consultation with the Monitor and the City’s retained expert and must be approved by DOJ. The Training Plan will:
a. Identify training priorities, principles, and broad goals consistent with this Agreement and the substantive training requirements set out in Section XVII below;
b. Include a plan for delivering supplemental basic training and in-service training, as necessary to provide the relevant training required by this Agreement;
c. Coordinate the topics of supplemental basic training and in-service training with Police Training Officer training;
d. Establish the frequency and subject areas for supplemental basic and in-service training;
e. Develop a plan for at least 50 hours of annual in-service training each year, with approximately 65 hours of annual in-service training for each of the first two years of the Agreement;
f. Identify available training delivery and related resources, as well as unmet needs, such as instructors, curricula, and equipment;
g. Coordinate with City and others to assist in obtaining necessary training resources; and
h. Establish a rubric for assessing the content and delivery of training, including training provided by outside instructors or non-FPD entities. This rubric will allow for the measurement and documentation of student reaction to, and satisfaction with, the training they received, and student learning as a result of training, including the extent to which students are applying the knowledge and skills acquired in training to their jobs.
2. Training Instructors and Curricula
52. The Training Committee, pursuant to the Training Plan and in consultation with FPD’s training coordinator, the Monitor, and DOJ, will review all training curricula and lesson plans for consistency, quality, and compliance with applicable law, FPD policy, and this Agreement. The Training Committee will ensure that a variety of adult learning techniques,
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scenario-based training, and problem-solving practices, in addition to traditional lecture formats, are incorporated into training delivery. The Training Committee will advise the Parties regarding training that can be delivered in roll-call or online, as opposed to training that will require more intensive delivery. The Training Committee will also assess instructor qualifications and testing materials.
53. Within 18 months of the Effective Date, in consultation with the Training Committee, FPD will develop or adopt supplemental basic training and in-service training curricula and lesson plans for the training required pursuant to this Agreement. All curricula and lesson plans will be reviewed and approved by the Monitor and DOJ prior to delivery. All training required by this Agreement that is conducted by an outside instructor or non-FPD entity will be reviewed and approved by the Monitor and DOJ prior to delivery.
54. With the assistance of the Training Committee, FPD will ensure that instructors are qualified, and that all instructors, curricula, and lesson plans have been approved by the Training Committee, the Monitor, and DOJ. With the assistance of the Training Committee, FPD will actively seek out and retain qualified instructors from outside FPD to supplement the skills of its in-house training staff and adjunct instructors. As appropriate, FPD will incorporate experts and guest speakers, including judges, prosecutors, crime victims, criminal justice professors, community resource providers, and community members, including youth, to participate in relevant courses.
3. Training Review and Update 55. The Training Committee will review and update FPD’s Training Plan every 18 months. To inform these updates, the Training Committee will conduct a needs assessment, taking into consideration: effectiveness of past training, as measured by the rubric described above; trends in misconduct complaints; any problematic uses of force; analysis of officer safety issues; input from members at all levels of FPD; input from members of the community, including community concerns; court decisions; research reflecting the latest in law enforcement trends; and any changes to Missouri or federal law, or FPD policy. The Training Committee will also assess FPD’s Police Training Officer program on an annual basis, as set out in Section V.B.5 below.
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4. Training Coordination, Instructors, and Tracking
56. FPD agrees to designate a Training Coordinator to oversee implementation of all training; provide administrative assistance to the Training Committee; track training delivery; and ensure that training is delivered consistently with FPD’s Training Plan and the terms of this Agreement. The Training Coordinator will also be responsible for ensuring the measurement and documentation of training effectiveness, using the rubric designed by the Training Committee, described above.
57. The Training Coordinator shall ensure that all officers complete training as required and that documentation of training is maintained. FPD will accurately document all training provided to, or received by, FPD officers (whether required or otherwise) in a manner that allows analysis by training type, training date, training source, and by individual officer name. FPD will facilitate and encourage officer training by allowing for sufficient overtime and time off, as necessary. FPD will develop and implement measures, including disciplinary and non-disciplinary corrective action, to ensure that all officers successfully complete all required training programs as scheduled by FPD.
5. Police Training Officer Program
58. Within two years of the Effective Date, FPD will redevelop its field training program for new recruits into a Police Training Officer (PTO) program that is consistent with FPD’s Training Plan and this Agreement. The PTO program will incorporate established standards for police training officer programs, such as employing contemporary methods of adult education and problem-based learning methods.
59. Within one year of the Effective Date, FPD will develop and implement a participation policy that ensures only highly qualified officers serve as Police Training Officers. FPD agrees to develop eligibility criteria and methodology to select PTOs based on their written applications, performance evaluations, previous performance as police officers, and complaint and disciplinary histories.
60. FPD agrees to ensure that all PTOs receive a minimum of 40 hours of initial training, as well as necessary refresher training, consistent with the training plan, after one year of participation in the program. This training will be adequate in quality, quantity, scope, and type, and will address management and supervision; community-oriented policing; effective
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problem-solving techniques; and field communication. PTOs will be required to maintain, and demonstrate on a regular basis, their proficiency in managing recruits and subordinates, practicing and teaching community-oriented policing, and solving problems effectively. FPD will maintain current documentation of PTOs’ evaluations and training and remove PTOs or add as appropriate and necessary.
61. Within one year of the Effective Date, FPD will create a mechanism for recruits and lateral hires to provide confidential feedback regarding the quality of their PTO training, including the extent to which that training was consistent with what they learned in the academy or prior experience, and suggestions for changes to FPD’s training programs. FPD will document its response, including the rationale behind any responsive action taken or decision to take no action.
62. FPD’s Training Committee will, on an annual basis, assess FPD’s PTO program and consider emerging national policing practices in this area, and make recommendations for modifications to the City as appropriate. The City will institute appropriate changes to policies, procedures, and training related to FPD’s PTO program.
6. Supplemental Basic Training
63. FPD agrees to ensure that: (a) new police recruit hires will have graduated from a police academy requiring at least 900 hours of basic training for graduation; or (b) for recruits who did not graduate from such an academy, FPD will develop a plan for providing supplemental individualized training to such FPD recruits, to ensure that such recruits have at least 900 hours of basic training which include the supplemental basic training content described in Section XVII. FPD further agrees to develop individualized training plans for lateral police hires for providing supplemental training as necessary to ensure that the lateral police hire, through a combination of academy training, subsequent in-service training, and the supplemental training provided by FPD, has training that is substantively equivalent to a 900-hour training academy and the training requirements of this Agreement.
VI. BIAS-FREE POLICE AND COURT PRACTICES
64. This Agreement, in its entirety, will be implemented in a manner that ensures equal protection of the law for all individuals, regardless of race, color, ethnicity, national origin, religion, gender, sexual orientation, disability, or other protected characteristics. The provisions
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below, alongside the related training requirements in Section XVII.C of this Agreement, most directly address the obligations of the City, through FPD officers and employees, to provide police and court services free from unlawful bias or discrimination, and to fully recognize and value the legal rights and inherent dignity of all individuals, regardless of their protected characteristics.
A. Requirements of Bias-Free Policing
65. The City has prohibited unlawful discrimination as provided in Chapter 21 of the Ferguson Municipal Code. The City will administer all programs, initiatives, activities and police services without unlawful discrimination on the basis of race, color, ethnicity, national origin, religion, gender, gender identity, sexual orientation, age, immigrant status, disability, housing status, occupation, or limited English proficiency.
66. The City agrees to provide clear policy, training, and supervisory direction on prohibited conduct, including selective enforcement activities or decisions, or non-enforcement of the law, and the selection or rejection of particular tactics and strategies based upon stereotypes or bias. If necessary, the City will retain consultants in developing this policy, training, and supervisory direction, and such consultants shall possess the requisite expertise and be approved by DOJ. The City’s policies, training and supervisory direction shall take into account the influences of implicit bias, stereotype threat, and gender bias on officer enforcement decisions, use of force, and other police and court activity.
67. The City agrees that all FPD police and court employees will provide timely and meaningful access to police and court services to all, including individuals who have a limited ability to speak, read, write, or understand English (LEP individuals). The City will develop and implement, in consultation with the Monitor and with approval by DOJ, the policies and training necessary to ensure timely and meaningful police services to LEP individuals.
68. The City agrees to revise policy, training and supervisory direction related to officer response to allegations of domestic violence and sexual assault, which are largely crimes against women, to ensure that the law enforcement response is both effective and not undermined by gender bias.
69. The City agrees to consider any indicia of unlawfully discriminatory policing or other bias by officers or officer candidates in evaluating officer performance and making hiring and promotion decisions. This includes giving significant weight to an individual's history of
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sustained bias-related violations, including sexual harassment or discrimination against City employees or members of the public.
70. The City agrees to assess, and if necessary, improve upon the accuracy and reliability of, FPD's current processes for collecting and analyzing state-mandated “racial profiling” data. The City will develop protocols for collecting and analyzing such data, which will set forth additional data to be collected and analyzed and improve the accuracy and reliability of data collection methods. Such protocols will be consistent with the data collection requirements of Section XXI of this Agreement.
71. The City agrees that, if at any point it identifies indicia of unlawfully discriminatory conduct, it will take immediate corrective action as necessary to ensure that the program, initiative, activity, or service in question is not further applied or administered in a manner that unlawfully discriminates against individuals on the basis of protected characteristics.
B. Ongoing Assessment and Improvement
72. The City and FPD will develop cost-feasible protocols for regularly, and at least annually, conducting data-based assessments of the impact of all police and court programs, initiatives, activities, and services to determine whether they impose a disparate impact on the basis of protected characteristics. These ongoing disparate impact assessments will be consistent with the data collection requirements of Section XXI of this Agreement, and subject to the approval of DOJ. Such assessments will include regression analyses that will control for factors other than protected characteristics. Examples of regression analyses that will be conducted are set forth in Section XXII.C of the Agreement as outcome measures.
73. For the duration of this Agreement, the Monitor will be responsible for conducting the ongoing disparate impact assessments required by this section. The City agrees to work with the Monitor, or work with third parties with expertise in relevant data collection and analysis, during the duration of this Agreement to develop the capacity to conduct these assessments so that it can continue the performance of such assessments following termination of this Agreement.
74. Within one year of the Effective Date, the City will develop protocols for correcting any identified disparate impact in any FPD program, initiative, activity, or police or court service. Such protocols will require that, if any disparate impact on the basis of a protected characteristic is identified, the City will determine whether there are appropriate modifications or
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alternatives to the program, initiative, activity, or service that would have less of a disparate impact. If appropriate modifications or alternatives are available, the City will implement them within a reasonable time.
VII. VOLUNTARY CONTACTS, STOPS, SEARCHES, CITATIONS, AND ARRESTS
75. The City agrees to ensure that all FPD voluntary encounters, investigatory stops and detentions, searches, citations, and arrests are conducted in accordance with the rights, privileges, and immunities secured or protected by the Constitution and the laws of the United States. FPD will ensure that these police activities are part of an effective overall crime prevention strategy; are consistent with community priorities for enforcement; build trust between FPD and the community; and are adequately documented for tracking and supervision purposes.
76. With respect to the subsections below, the City agrees to ensure that FPD officers adhere to the following principles:
a. No City or FPD employee will recommend, develop, or implement any law enforcement program, strategy, tactic, or action in order to generate revenue. Any revenue generated by law enforcement actions will be incidental to the public safety purpose;
b. FPD officers will not use race, color, ethnicity, national origin, religion, gender, sexual orientation, disability, or other protected characteristics as a factor, to any extent or degree, in investigating, searching, or restraining the liberty of any person, except as part of an actual and credible description of a specific suspect in an ongoing criminal investigation;
c. FPD officers will not initiate an encounter with any person or stop any person, or attempt to do so, for the purpose of checking for warrants even where there is an alternative pretext for the stop, unless the officer knows the person’s identity and that the person has outstanding warrants for his/her arrest, prior to the encounter;
d. FPD officers will not use “canned,” boilerplate, or conclusory language in any reports documenting investigatory stops or detentions. Articulation of reasonable suspicion, probable cause, or any other applicable legal standard will be specific, clear, and based on objective facts particular to the stopped, detained, or arrested
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person; and e. FPD officers will not use or rely on information known to be materially false or
incorrect in conducting or justifying any police activity. A. Voluntary Contacts: Social Contacts & Non-Custodial Interviews
77. FPD will recognize two distinct classes of voluntary contacts: social contacts, which are non-investigative conversations, and non-custodial interviews, in which the officer seeks to investigate the person he or she questions. Officers will be encouraged to engage in social contacts to develop relationships and implement FPD's commitment to communityoriented policing. Officers conducting or attempting to conduct non-custodial interviews will:
a. Introduce themselves by name and rank as soon as reasonable and practicable; b. Notify the person(s) encountered that they are free to leave and do not have to
answer any questions; c. Inform the subject that the encounter is being recorded; and d. Refrain from using words or actions that would tend to communicate that the
person(s) are not free to leave or must answer questions. 78. FPD will ensure that officers engaged in, or attempting to engage in, a social contact or non-custodial interview do not use a person's failure to stop, failure to answer questions, decision to end the encounter, or departure to justify an investigatory stop or detention, search, citation, or arrest of the person. B. Investigatory Stops and Detentions
79. FPD will ensure that officers conduct investigatory stops or detentions only when they have reasonable suspicion that a person has been, is, or is about to be engaged in the commission of an offense.
80. FPD officers will not conduct pretextual stops except where the actual reason for the stop is to investigate a felony.
81. FPD will ensure that, upon initiating an investigatory stop or detention, officers: a. Introduce themselves by name and rank as soon as reasonable and practicable. It will be FPD practice to also provide the stopped individual an FPD business card at the end of a stop; b. Immediately notify the person(s) encountered that they are not free to leave, and, if the officer intends to ask questions, that they do not have to answer any
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questions; c. State the reason for the investigatory stop or detention as soon as reasonable and
practicable; d. Inform the subject that the encounter is being recorded; e. Ensure that the stop or detention is no longer than necessary to take appropriate
action; and f. Act with professionalism and courtesy throughout the interaction. 82. FPD will ensure that officers do not further limit a person’s freedom during an investigatory stop or detention in any of the following ways unless the officer has an articulable basis (including but not limited to officer safety) to justify the action: a. Taking a subject’s identification or driver’s license away from the immediate
vicinity; b. Ordering a motorist to exit a vehicle; c. Placing a pedestrian against a wall; d. Directing a person to stand or remain standing, or to sit on a patrol car bumper or
any other place not of his or her choosing; e. Directing a person to lie on the ground; f. Applying handcuffs; g. Transporting a person any distance away from the scene of the initial stop,
including for the purpose of witness identification; h. Placing a person into a police vehicle; i. Frisking (see paragraph 83 below); or j. Unholstering or pointing a weapon. C. Searches
83. In order to frisk, or pat down, any person, that person must first be lawfully stopped or detained pursuant to reasonable suspicion. In addition, the officer must have reasonable grounds to suspect the person is armed and dangerous, and the frisk must be reasonably designed to discover weapons or instruments that could be used to assault the officer.
84. FPD will ensure that officers do not conduct any other search, of person or property, without: (a) probable cause, meaning that the objective facts available to the officer would warrant a person of reasonable caution in believing there is a fair probability that
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contraband or evidence of an offense is present in the place to be searched; and (b) a warrant or an exception to the warrant requirement, including but not limited to a search incident to arrest or exigent circumstances.
85. FPD will prohibit officers from seeking consent to search unless the officer has a reasonable and articulable suspicion that the search will reveal evidence of an offense, or the officer has legal authority for the search that is independent of consent. Officers will document in writing the basis for this suspicion or other legal authority.
86. FPD officers seeking consent for a search will affirmatively inform the subject of the right to refuse and to revoke consent at any time. The officer will record this notification and the subject’s affirmative statement of consent or denial of consent on his or her body-worn camera, except where exigent circumstances preclude such recording, in which case the officer will be required to obtain written consent on a form that notifies the individual of those rights.
87. Any affidavit or sworn declaration supporting an application for a search warrant will provide an accurate, complete, and clear description of the offense, the place or thing to be searched, the scope of the search, and the time and method of the search.
88. Administrative searches for building and housing code purposes by non-FPD officers, e.g., by building code inspectors or code enforcement officers, will be handled differently than the FPD searches covered by this section. The City agrees to develop and implement protocols for interaction between FPD officers and those performing administrative searches, including criteria for, and documentation of, FPD accompaniment of these officials during housing searches.
89. FPD will maintain centrally a log listing each search warrant, the case file where a copy of such warrant is maintained, the officer who applied for the search warrant, and each supervisor who reviewed the application for the search warrant.
D. Citations and Arrests
90. FPD will ensure that officers issue a citation or make a custodial arrest only when they have probable cause to believe a person has committed or is committing an offense.
91. The City will not use citation or arrest quotas, whether formal or informal, of any kind.
92. FPD will ensure that FPD officers obtain verbal supervisory approval, which shall be documented as soon as practicable:
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a. Before issuing three or more citations to any person in any single encounter, or more than one citation for the same act;
b. Before issuing citations for any of the following offenses: any housing or zoning code violation, including any occupancy or maintenance violation; failure to comply/obey; disorderly conduct; peace disturbance; manner of walking in roadway; resisting arrest; and obstruction of government operations/interfering with an officer;
c. Before transport of any arrested person on a charge of failure to comply/obey or resisting arrest; and
d. Of every other arrest as soon as reasonably practicable after the person is presented at FPD headquarters.
93. FPD will ensure that officers do not arrest any person for any code offense except: traffic offenses involving alcohol or drugs; offenses involving property damage or injury to others; animal neglect or cruelty; where the objective evidence indicates that, absent arrest, the person’s unlawful conduct will continue; where a valid citation cannot be issued because the person refused to identify himself or herself to the officer; or if the person is considered a danger to any person or property.
94. Within 180 days of the Effective Date, FPD will develop and implement a plan for correctable violations for FPD to address vehicular equipment violations, traffic violations involving the failure to provide proof of driver's license, any housing, zoning, or animal licensing violations (including occupancy and maintenance violations) enforced by FPD, and additional violations as the City deems appropriate. This plan will provide for individuals to provide proof of the correction of a violation within a reasonable period of time in lieu of a citation.
95. FPD will ensure that officers complete accurate reports for all activities that warrant a report, including all arrests, before the end of their shift absent extenuating circumstances approved by a supervisor.
E. Stop Orders, or “Wanteds”
96. The City has already eliminated some “stop orders” or “wanteds” issued by FPD and agrees to eliminate all “stop orders” or “wanteds” issued by FPD within 180 days of the Effective Date.
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97. The City agrees to implement a one-year moratorium on issuing new “stop orders” or “wanteds,” and on stopping, detaining, searching, citing, or arresting any person or vehicle on the basis of a “stop order” or “wanted.” The sole exception to this moratorium will be where: a) there is, both when the “stop order” or “wanted” is issued and enforced, verified and current probable cause of a state violation; b) the St. Louis County Prosecutor’s Office has refused the City’s request to seek a warrant related to the violation on a basis other than a lack of probable cause; and c) the “stop order” or “wanted,” both when issued and enforced, comports with FPD policy and is approved by the FPD Chief of Police.
98. During this moratorium, the City will continue to use “be on the lookout” or “allpoints” bulletins, and warrants, consistent with generally accepted police practice nationwide, and evaluate alternatives to the use of “stop orders” or “wanteds.” DOJ and the Monitor shall assist the City in identifying and evaluating alternative systems that improve officer and public safety and fully comport with constitutional and other legal requirements. Upon completion of the evaluation, the City shall implement the selected alternative, as approved by the Monitor and DOJ. Should the City determine after evaluation that it wishes to reinstate the “stop order” or “wanted” system and DOJ objects, the court shall resolve the matter. Under no circumstances shall the wanted/stop order system be reinstated without significant modifications to policies, use, and training to ensure that the system better protects officer and public safety, and comports with the Constitution and other legal requirements.
F. Supervision
99. Supervisors evaluating a request for approval to issue a citation, as set out in paragraph 92, will consider the legality of the citation, whether issuing the citation is required by public safety and would be consistent with community-oriented policing and the policing goals established by the City and the community, and whether the citation is unfairly duplicative, excessive, or retaliatory.
100. FPD will develop a protocol for checking all arrestees for signs of injury, including any complaint by the arrestee, when the arrestee arrives at FPD headquarters, and ensuring appropriate medical treatment.
101. FPD field supervisors will review each arrest report of officers under their command and will memorialize their review in writing by the end of the shift within which the arrest occurs, absent exceptional circumstances.
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102. Supervisors will review each request for a search or arrest warrant, including each affidavit or declaration before it is filed by an officer in support of a warrant application, for appropriateness, legality, and conformance with FPD policy and this Agreement.
103. Supervisors will review the operational plan for the execution of a search warrant, and, absent exceptional circumstances, supervisors will be present for the execution of the search warrant. A supervisor will document in the case file the exceptional circumstances preventing his or her presence. Once executed, a supervisor will review the execution of the search warrant. Supervisors will memorialize their reviews in writing within 24 hours of the execution of a search warrant.
104. Supervisors will assess warrant applications, citation and arrest reports, and all supporting documents for: accuracy and authenticity; "canned," boilerplate, or conclusory language; inconsistent information; and inadequate articulation of a legal basis for the police action taken.
105. Supervisors will regularly audit their assigned officers’ stop, search, citation, and arrest documentation for completeness, accuracy, legal sufficiency, and compliance with FPD policy and this Agreement. Supervisors will audit at least one CAD log for each officer under their supervision each week. Sergeants will conduct further review as shown to be necessary by weekly audits, data in FPD’s records management system, and other indicia.
106. Each supervisor will document those stops or detentions, searches, warrant applications, citations, and arrests that are legally unsupported, are in violation of FPD policy or this Agreement, or that indicate a need for corrective action or review of agency policy, strategy, tactics, or training. The supervisor will take appropriate action to address violations or deficiencies, including recommending non-disciplinary corrective action for the involved officer(s), and/or referring the incident for administrative or criminal investigation.
107. For each subordinate, the supervisor will track each violation or deficiency and the corrective action taken, to identify officers needing repeated corrective action.
108. A command-level official will review, in writing, all supervisory reviews related to stops or detentions, searches, warrant applications, citations, and arrests that the supervisor has determined to be unsupported by proper legal justification, in violation of FPD policy or this Agreement, or indicative of a need for corrective action or review of agency policy, strategy, tactics, or training. The commander’s review will be completed within seven days of receiving
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the document reporting the event in question. The commander will evaluate the corrective action and recommendations in the supervisor’s written report and ensure that all appropriate corrective action is taken, including referring the incident for an internal or criminal investigation, if warranted.
G. Ongoing Assessment and Improvement
109. Within 180 days of the Effective Date, the City and FPD will develop protocols for regularly, and at least annually, conducting cost-feasible data-driven and qualitative assessments of its voluntary encounter; stop, including pedestrian stop; search; citation; and arrest practices, including breakdowns by the protected characteristics of the subject. These assessments will be designed to ensure these law enforcement actions are being conducted appropriately in accordance with FPD policy and state and federal law. As part of this assessment process, the City and FPD will identify deficiencies and opportunities for improvement; implement appropriate corrective action and improvement measures; and document measures taken.
VIII. FIRST AMENDMENT PROTECTED ACTIVITY
110. The parties acknowledge that First Amendment protected activities serve important societal functions, including promoting transparency in government affairs, ensuring accountability of public officials, and encouraging community feedback—whether critical or laudatory—that ultimately reduce tension and foster a sense of openness and trust between law enforcement and the public.
111. FPD will ensure that all FPD personnel respect the First Amendment rights of all persons, including:
a. The right to observe and record officers in the public discharge of their duties in all traditionally public spaces, including sidewalks, parks, and locations of lawful public protests, as well as any other areas where individuals otherwise have a legal right to be present, including an individual’s home or business and common areas of public and private facilities and buildings;
b. The right to criticize or complain about police conduct without being subject to retaliation; and
c. The right to engage in lawful public protest.
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A. Right to Observe and Record
112. Consistent with the Order by Consent issued in Mustafa Hussein v. County of Saint Louis, Missouri, et al., 4:14-cv-1410-JAR (E.D. Mo., November 21, 2014), FPD will ensure that “its officers, employees, or agents, and those acting on its behalf, shall not enforce or threaten to enforce any rule, policy, or practice that grants law enforcement officers the authority or discretion to arrest, threaten to arrest, or interfere with any individual, including any member of the media or member of the public photographing or recording in public places unless that person is threatening the safety of others or physically interfering with the ability of law enforcement to perform their duties.”
113. FPD will ensure that FPD policy and training makes clear what conduct is considered “obstruction” or “interference,” with specific examples, to ensure that FPD officers do not unreasonably claim that an individual’s presence amounts to the offense of obstructing or interfering with a law enforcement officer, or otherwise violates the law. FPD will ensure that where the person’s location is causing the obstruction or interference, the officers recommend a less-intrusive location from which the bystander may continue to observe, record, and/or protest and give the individual a reasonable opportunity to comply prior to taking further enforcement action.
114. Individuals shall be permitted to record officer activity by camera, video recorder, cell phone recorder, or any other means. The use of a recording device during a police encounter shall not in itself be considered a threat to officer safety and thus shall not be a basis to require a person to refrain from recording or to put away his or her recording device, as long as the person recording is in a lawful location, is not threatening the safety of others or the police officers, and is not obstructing or interfering with the officer’s lawful duties, and is not otherwise violating the law. Officers may instruct an individual to cease recording and put away the recording device when that individual is being placed under arrest.
115. FPD will ensure that officers do not search, seize, or otherwise coerce production of recorded sounds, images, or videos without obtaining a warrant. Where an officer has a reasonable belief that a bystander or witness has captured a recording of critical evidence related to a felony and the exigencies of the circumstances demand it, the officer may secure such evidence for no more than 12 hours while a legal subpoena, search warrant, or other valid order
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is obtained. Upon seizing such property, officers may not search or review its contents without first obtaining a search warrant.
116. FPD will ensure that officers do not coerce individuals to consent to the search or seizure of their recording devices or recordings.
117. FPD will ensure that officers do not intentionally destroy cameras, other recording devices, sounds, images, or videos, and that they do not order an individual to intentionally destroy the same or otherwise cause such destruction, provided, however, that the City may dispose of material in accord with the record retention and destruction requirements established by state law.
B. Public Protests and Demonstrations
118. FPD will ensure that officers do not unlawfully interfere with individuals gathering in groups for public protests and demonstrations in a lawful manner and location.
119. FPD will revise current policies and protocols for policing public protests and demonstrations as necessary, in consultation with the Monitor and to be approved by DOJ. These policies and protocols will include:
a. Factors officers should consider when exercising their lawful discretion to arrest; b. Clear guidelines that minimize individually applied discretionary enforcement
decisions by officers during public protests; c. An effective traffic control plan for streets and sidewalks; d. Plan for public information sharing before, during, and after public
demonstrations; e. Guidelines and limitations on the use of less-lethal force during public
demonstrations, including the criteria and circumstances for the use of different types of force, required warnings, and documentation; f. Plan for clearly communicating to all law enforcement agencies participating in any response to a public demonstration in Ferguson the limitations and requirements for such participation, including limitations and requirements related to force, arrests, and officer uniforms, including officer identification; g. Centralized complaint intake process for use by individuals to make a complaint regarding an officer of any agency during a multijurisdictional response and referral process to an appropriate agency for adjudication of such complaint; and
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h. Officer safety and well-being (see Section XIV of this Agreement). 120. FPD will ensure that officers do not treat protestors differently based on the content of their speech or expression. 121. FPD will not use canines for crowd control and will not use law enforcement officers using rifle sights to monitor crowds during protests, and shall request other law enforcement agencies responding within Ferguson to refrain from doing the same. 122. FPD will ensure that all law enforcement officers employed by the City of Ferguson during public demonstrations have received appropriate training, including deescalation techniques, key concepts of the National Incident Management System command and management, including Incident Command Systems, multiagency coordination systems, and policing consistent with the First Amendment. FPD shall request other law enforcement agencies responding within Ferguson to ensure the same. C. Retaliation for First Amendment Activity Prohibited
123. FPD will ensure that officers do not take any police action in retaliation for individuals lawfully exercising their right to witness, observe, record, comment on, or protest police activity. This includes detaining, searching, arresting, issuing a citation, or using force in response to non-criminal statements or other expressive conduct, when the officer would not have taken such action in the absence of the statements or expressive conduct.
D. Supervision of First Amendment Related Arrests and Seizures
124. Only the Chief or the Assistant Chief may declare an assembly to be unlawful. Orders to disperse may be issued, if at all, only following such a declaration, and only by a supervisor. FPD will ensure that officers obtain supervisory approval, to be documented as soon as practicable, before issuing any citations or making arrests related to public protest activity, including violation of any state or local law, such as Mo. Rev. Stat. § 574.060 (refusal to disperse); § 574.040 (unlawful assembly); or ad hoc police rule limiting the time, place, and manner of lawful public assembly, see Mustafa v. Cnty of St. Louis, No. 4:14-cv- 1436 (E.D. Mo.) (Oct. 6, 2014) (issuing a preliminary injunction against the Missouri Highway Patrol and Saint Louis County with regard to the “keep-moving” policy).
125. FPD will ensure that officers obtain supervisory approval, to be documented as soon as practicable, before taking any action set forth below. In each of these circumstances, if reasonably practical, a supervisor shall respond to the scene and assess the situation in person.
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At a minimum, supervisors must be present to approve arrests and other actions prior to arrestees being transported to a holding facility, absent exigent circumstances to be documented as soon as practicable.
a. Issuing any citation or making any arrest related to the use of a recording device; b. Issuing any citation or making any arrest of any member of the media, whether
formally credentialed or not, including citizen-journalists and live-streamers; c. Performing any warrantless seizure of a recording device or recording; and d. Taking any other significant action involving recording devices or recordings. E. Ongoing Assessment and Improvement
126. Within 180 days of the Effective Date, the City and FPD will develop protocols for conducting, at least annually, cost-feasible data-driven and qualitative assessments of FPD’s practices related to First Amendment protected activity. These assessments will be designed to ensure that FPD officers are policing within the parameters of the First Amendment.
127. Assessments will include the review and analysis of complaints alleging misconduct related to First Amendment protected activity; an analysis of the number and nature of recording device seizures, arrests, or other interference with members of the press; and analysis of law enforcement response to public protest or demonstration. Any officer identified as having committed such misconduct shall be afforded an opportunity to respond to such complaints. As part of this assessment process, the City and FPD will identify deficiencies and opportunities for improvement; implement appropriate corrective action or improvement measures; and document measures taken.
IX. FORCE
128. The Parties agree that all FPD officers and employees must have an unwavering commitment to protecting human life, and to upholding the value and dignity of every person. To foster this commitment, and to ensure adherence to the Constitution and all other laws, FPD will ensure that its use-of-force policies, training, supervision, and accountability systems are designed to ensure that FPD officers, including civilian correctional officers:
a. Use force only when necessary to accomplish a legitimate public safety objective; b. Use de-escalation techniques and tactics to minimize the need to use force and
increase the likelihood of voluntary compliance with legitimate police orders;
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c. Use force in a manner that avoids unnecessary injury or risk of injury to officers and civilians, is proportional to the level of resistance or threat encountered, and is de-escalated at the earliest possible moment;
d. Recognize and act upon the duty to intervene to stop any officer or civilian correctional officer from using force that is unreasonable or unnecessary;
e. Immediately provide any necessary emergency medical assistance after using force and immediately summon additional medical assistance as necessary;
f. Accurately and completely report all reportable force used or observed by officers;
g. Are recognized and supported when they achieve public safety goals while avoiding use of force; and
h. Are disciplined when they use force that is unnecessary or objectively unreasonable or otherwise violates law or policy.
A. General Use-of-Force Requirements
129. The City will ensure that officers use force in accordance with the Constitution and other laws, FPD policy, and this Agreement.
130. FPD agrees to commit to a use-of-force model that, through policy, training, and supervision, provides officers with the skills and training necessary to make optimal force decisions and resolve situations without the use of force whenever possible. Under this approach, FPD will train and encourage officers to, where appropriate, slow down or stabilize a given incident, through tactical retreat or other de-escalation techniques, to create more time, space, resources, and options to resolve incidents, and to enhance officer safety.
131. Pursuant to this model, FPD will ensure that, whenever possible, officers gather information before using force to determine: whether the situation truly presents a threat to public safety; whether it may involve a medical/mental health crisis rather than a criminal matter; if a threat is present, what tactical options are available, including communication and negotiation; what other law enforcement personnel or resources should be involved; and whether the officer’s actions would be consistent with the agency’s code of ethics, including respect for the sanctity of life and the dignity of all persons.
132. FPD will specify all weapons and force techniques officers are authorized to use, and which weapons/use-of-force equipment officers must carry while on duty, for every officer
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assignment. FPD policies will clearly define and describe each force option and the circumstances under which use of such force is appropriate. If FPD makes any additional weapons/use-of-force equipment available to its officers in the future, it will likewise create a policy for the weapon/equipment. These policies, while recognizing that many incidents requiring a use of force are unique, will require that all FPD uses of force adhere to the core principles articulated in paragraph 128 above. FPD will ensure that officers carry only the weapons/equipment that have been approved by the department and that the officer has been properly trained and certified to use.
133. FPD will ensure officers do not use lethal force unless: (a) a person is displaying aggravated aggressive resistance, thereby leading the officer to an objectively reasonable belief that the person poses an imminent threat of death or serious physical injury to the officer or others, or to prevent escape of a violent felon where the officer has probable cause to believe that the suspect poses a threat of immediate, serious physical injury either to the officer or others; and (b) less intrusive methods to control the subject or avoid harm have been tried and were ineffective or would be ineffective. FPD will train and encourage officers to recognize the opportunity for and to employ tactical retreat, withdrawal, and other de-escalation techniques to increase incident resolution options and enhance officer safety.
134. FPD will ensure that officers do not use less-lethal force unless: (a) a person is displaying aggressive resistance by attacking or attempting to attack the officer or another person, and (b) less intrusive methods to control the person or avoid harm have been tried and proven to be ineffective or would be ineffective.
135. FPD will ensure that officers use the minimum amount of force necessary, objectively reasonable, and proportional to a person’s behavior when interacting with persons who are displaying passive resistance or active resistance. Force used in these situations should be low-level.
136. FPD agrees to train and require all officers to do the following: a. Identify themselves as officers before using force whenever safely possible. Whenever possible, officers will allow individuals the opportunity to submit to arrest before force is used. Prior to the use of any approved weapon/equipment, when possible and appropriate, officers will communicate to the subject and other officers that the use of the weapon is imminent to allow the subject an opportunity
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to comply; b. In determining whether the use of force is necessary and reasonable, consider
whether a subject may be noncompliant due to a medical or mental health condition, mental health crisis, physical or hearing impairment, language barrier, or drug interaction. When noncompliance appears to be due to such a condition, officers will be trained and required to employ de-escalation tactics and techniques where possible; c. Fulfill their duty to safely intercede to prevent the use of objectively unreasonable force; and d. Whether or not an eyewitness to an improper use of force or other constitutional violation, bring relevant information regarding known or suspected improper uses of force to the attention of a supervisor. 137. FPD will prohibit officers from doing the following: a. Using force on restrained individuals (e.g., subjects handcuffed or contained in a police vehicle) except: (a) when the individual's actions must be immediately stopped to prevent imminent or ongoing injury to any person; (b) to prevent the individual's escape or significant destruction of property; or (c) when the individual is refusing to get out of a police vehicle and reasonable attempts to gain voluntary compliance have failed, and a supervisor has approved the use of force to remove the individual. FPD will closely review force used against restrained individuals to ensure that it was necessary and proportional given the offense committed by the subject and the danger the subject posed to others; b. Using neck holds, a form of lethal force; c. Using force only because another officer is using force, or against persons who only verbally confront them; d. Using retaliatory force, including force used after a threat has diminished and that is thus not reasonably necessary; force intended to punish an individual for fleeing or otherwise resisting arrest; and force used in response to the expression of criticism or disrespect for an officer or any other person; e. Using force against individuals who may be observing or recording officer behavior, absent a basis for the use of force consistent with law, FPD policy, and
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this Agreement; and f. Using force to effect compliance with a command that is unlawful. 138. FPD will ensure that immediately following a use of force, officers adhere to the following requirements: a. Officers—and, upon arrival, a supervisor—will inspect and observe subjects for
injury or complaints of pain resulting from the use of force. Officers will render or obtain medical assistance, including emergency life-saving care where appropriate, for any person who exhibits signs of physical distress, has sustained a visible injury, expresses a complaint of injury or continuing pain, or was rendered unconscious. As necessary, officers will provide emergency first aid until professional medical care providers arrive on the scene. Any individual exhibiting signs of physical distress will be continuously monitored by the officer involved or another on-scene officer until medical care providers can assess the individual; b. Officers will handcuff individuals against whom lethal force has been used only when there are objective articulable facts indicating the individual remains a threat; c. Officers will not restrain individuals in a manner that compromises the individual’s ability to breath; and d. Following a use of force in which a person is killed or seriously injured, the agency controlling the scene/investigation will assign a trained officer or employee to provide the individual's family members with information about the incident, as appropriate, and provide them information about any available counseling services. Family may be kept from the seriously injured or killed person as necessary to protect the integrity of the scene, and law enforcement personnel should explain this rationale. Family members should not be restrained unless necessary to protect the integrity of the scene or when otherwise objectively reasonable. B. Weapon-Specific Requirements
139. In addition to the generally applicable force requirements of this section of the Agreement, FPD will ensure that officers comply with the weapon-specific requirements below.
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1. Firearms 140. FPD will ensure that only officers who have successfully completed approved training and are currently certified may be issued, carry, and use firearms. At least once a year, officers must qualify with each firearm they are authorized to carry while on duty. Officers who fail to qualify will immediately relinquish FPD-issued firearms on which they failed to qualify. Those officers who still fail to qualify after remedial training within a reasonable time will be subject to disciplinary action, which may include termination of employment. 141. Each shot fired is a separate use of force that officers must separately justify as reasonable. 142. If feasible, and if to do so would not increase the danger to the officer or others, officers will issue a verbal warning to the subject and fellow officers prior to shooting a firearm. 143. FPD will ensure that officers:
a. Do not unholster and display a firearm unless the objective circumstances create a reasonable belief that lethal force may become necessary;
b. Do consider their surroundings before discharging their firearms and will avoid unnecessary risk to bystanders, victims, and other officers;
c. Do not fire warning shots; d. Do not shoot through a door or window when the target is not clearly in view; and e. Do not shoot from or at a moving vehicle except to prevent otherwise unavoidable
serious injury or death to the officer or third parties. Officers will attempt to move out of the path of a moving vehicle rather than discharging a firearm. Officers will not place themselves in the path of or reach inside a moving vehicle. A fleeing vehicle, in and of itself, will not be considered a threat of immediate serious injury or death.
2. Electronic Control Weapons 144. FPD will ensure that only officers who have successfully completed approved training and are currently certified may be issued, carry, and use Electronic Control Weapons (ECW). Officers will complete ECW certification annually, consisting of updated FPD policy, weapon retention, technology changes, scenario-based training, and report-writing.
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145. Each ECW application (in probe mode or drive-stun mode) is a separate use of force that officers must separately justify as reasonable. FPD will ensure that, after the first ECW application, the officer will reevaluate the situation to determine if subsequent cycles are necessary, and will weigh the risks of subsequent cycles against other force options. In determining whether any additional application is reasonable, officers will consider that a subject may not be able to respond to commands during or immediately following an ECW application, and the officer will allow sufficient time for the subject to comply prior to applying another cycle. Officers will not employ more than three cycles or 15 total seconds of an ECW against a subject during a single incident.
146. FPD will ensure that officers: a. Do not continue to apply ECWs when ECW application is not leading to compliance; b. Do not use ECWs in drive-stun mode as a pain compliance technique. Officers may use ECWs in drive-stun mode only to supplement the probe mode to complete the incapacitation circuit, or as a countermeasure to gain separation between the officer and the subject so that the officer can consider another force option; c. Determine the reasonableness of ECW use based on all relevant circumstances, including the subject's apparent age, size, physical and mental condition, and the feasibility of lesser force options; d. Except where lethal force is the only other option, do not use ECWs when a deployment may cause serious physical injury or death from situational hazards, including falling, losing control of a moving vehicle, or becoming ignited from the presence of potentially explosive or flammable materials or substances; e. Except where lethal force is the only other option, do not use ECWs when the subject is visibly pregnant, apparently elderly, a child, visibly frail, of abnormally slight build, or in apparent medical or mental health crisis; f. Do not use ECWs on fleeing persons who do not pose an imminent threat of physical harm to the officer, third persons, or themselves. Flight will never be the sole reason for applying an ECW; g. Do not apply ECWs to a subject's head, neck, or genitalia;
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h. Do not activate more than one ECW at a time against a subject; and i. Do keep ECWs in a weak-side holster to reduce the chances of accidentally
drawing and/or firing a firearm; 147. FPD will establish protocols and training on officers’ responsibilities, in consultation with local emergency medical services personnel, to include:
a. Ensuring that subjects against whom ECWs were used receive a medical evaluation by emergency medical responders in the field or at a medical facility;
b. Ensuring that probes are removed from a subject's skin only by medical personnel or properly trained officers;
c. Minimizing the risk of positional asphyxia and the need to use restraint techniques that do not compromise a subject's breathing;
d. Monitoring all subjects who have received an ECW application while in police custody; and
e. Informing medical personnel of all subjects who have been subjected to multiple ECW applications, including prolonged applications (more than three cycles or 15 seconds), or who appear to be under the influence of drugs or exhibiting symptoms associated with “excited delirium,” or who were kept in restraints after ECW use.
3. Impact Weapons
148. Officers must justify the use of each separate impact weapon, such as a baton or asp.
149. Officers will not use improvised weapons, such as a flashlight or firearm, to strike a person, unless there is an immediate need to strike and the officer is unable to use a weapon that would be necessary and objectively reasonable under the circumstances. The failure to carry a baton when required to do so will not justify the use of an improvised weapon.
4. OC Spray
150. FPD will ensure that only officers who have successfully completed approved training and are currently certified may be issued, carry, and use Oleoresin Capsicum spray (OC spray). Certification will be completed at least once every two years, and will include information from the medical community on the effects of OC spray.
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151. Officers must justify each separate application of OC spray. 152. Officers will issue a verbal warning to the subject, fellow officers, and other individuals present prior to using OC spray, whenever possible. Officers will wait a reasonable amount of time after providing the warning to allow the subject to comply with the warning. 153. Officers will not use OC spray against individuals or groups who merely fail to disperse. 154. Officers will assist exposed subjects with decontamination and water-flushing of exposed areas as soon as feasible. No spit hood or mask of any type may be placed on a person subjected to OC spray until that person has been fully decontaminated.
5. Canines
155. FPD will ensure that only officers who have successfully completed approved training and are current in their certification and ongoing training requirements can serve as canine handlers, and that only dogs that meet their certification requirements can be deployed as FPD canines. FPD will work with canine trainers to ensure that detailed training records are maintained regarding whether each handler-canine team has met specific control criteria for each control exercise; to ensure the documentation of remedial training given in response to a canine team's deficiencies in any area; and to ensure that all observed deficiencies are reported to FPD's canine unit supervisor.
156. Canines and handlers will be certified annually by a nationally recognized trainer or organization whose standards are consistent with the law, FPD policy, and best practices. The certification process must involve the demonstration of control and proficiency in specific, widely-accepted obedience and criminal apprehension exercises.
157. FPD agrees that a police canine is primarily a locating tool, and is only used as a force tool when reasonable and appropriate, which should be a rare occasion.
158. FPD will ensure that no canine handler uses his or her canine solely to intimidate or frighten any person.
159. FPD will ensure that canine handlers keep their canines within visual and auditory range at all times during deployments, except when a canine clears a threshold (e.g., rounding a corner, entering a room, ascending or descending a stairwell), in which case the handler will regain sight and hearing of the canine as quickly as possible.
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160. FPD will ensure that canine handlers obtain verbal supervisory approval before a canine is deployed, absent documented exigent circumstances that permit this use of force under law, FPD policy, and this Agreement. The approving supervisor will not serve as a canine handler during the course of the deployment.
161. FPD will ensure that, before deploying a canine, canine handlers issue verbal warnings that a canine will be deployed and that the suspect should surrender, unless providing such warnings would create an imminent threat of danger to the canine handler or any other person on the scene. A canine handler will allow a reasonable period of time between each warning to provide a suspect an opportunity to surrender.
162. FPD will ensure that canine searches of residences are conducted on short leash unless the canine handler can determine with certainty that there are no authorized individuals in the home.
163. To limit the risk of unnecessary canine bites, FPD will ensure that canine handlers do not deploy canines off-leash to search for or apprehend a fleeing or concealed subject unless the following requirements are all satisfied:
a. The handler is in auditory range of a suspect; b. The subject is wanted for a violent felony, or the objective and particularized
circumstances make it reasonable to believe the subject is armed with a weapon capable of causing death or serious physical injury or otherwise poses an imminent threat of death or serious physical injury to another person, including the officer; and c. Lesser means (including waiting) have been tried and have been ineffective or cannot reasonably be expected to allow for the apprehension of the subject. 164. Canines will not be used to apprehend anyone suspected of being under the influence of drugs or alcohol, if no other serious crime is involved. Absent exigent circumstances, officers will also avoid deploying canines to apprehend persons believed to be in mental health crisis. 165. FPD will ensure that, when a canine apprehends a subject by biting, the canine handler calls the canine off at the first moment the canine can safely release its bite. If the suspect is determined to be unarmed, the handler will immediately order the canine to release the bite. When deciding to call off the dog, the handler must keep in mind that the average person
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will struggle if being seized or confronted by a canine. This struggling will not be cause for not calling off the canine.
166. FPD will ensure that officers do not deploy canines against persons believed to be juveniles unless objective circumstances lead to a reasonable belief that such deployment is necessary to prevent imminent serious physical injury or death to any person, including an officer.
167. FPD will ensure that canines are not used for crowd control. C. Use of Force in Ferguson Jail
168. To minimize the unnecessary use of force and enhance safety, FPD will ensure that officers and correctional officers do not possess or use firearms or ECWs within the FPD jail booking or lockup areas.
169. FPD will ensure that at least two correctional officers are present in the FPD jail at all times.
170. In addition to the use of body-worn cameras required by this Agreement, FPD will ensure that all parts of the jail where prisoners may be present are surveilled by stationary video cameras that are always recording. Supervisors will review jail video footage when investigating uses of force, in addition to conducting random or targeted reviews of video footage.
D. Use-of-Force Reporting and Investigation
171. To ensure that FPD officers use force only as permitted by the law, FPD policy, and this Agreement, and are held accountable when they do not; that officers are positively recognized when they appropriately minimize or avoid use of force; that FPD identifies and corrects training, policy, equipment, tactical, and officer safety concerns raised by use-of-force incidents; and that FPD's response to officer use of force builds community trust and confidence, FPD agrees to the following requirements.
172. Within 120 days of the Effective Date, FPD will develop and implement, in consultation with the Monitor and subject to approval by DOJ, a comprehensive process for reporting and investigating all FPD officer uses of force. The policies and training developed pursuant to this system will ensure that all FPD personnel, including officers, correctional officers, dispatchers, supervisors, and commanders at all levels, are required and trained to carry out their force-related reporting, review, and accountability duties and responsibilities.
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1. Force Reporting
173. Consistent with paragraph 384 of this Agreement, all officers using force above unresisted handcuffing will be required to document the use of force in writing before the end of shift, and to immediately report the use of force to a supervisor. An officer's use-of-force report will include a narrative that explains with specificity the type of force used; the legitimate police objective necessitating the use of force; details regarding the level of resistance encountered; and all efforts to de-escalate the situation to avoid the use of force, and to minimize the level of force used, or reason why such efforts were not attempted. Officers will note in their use-of-force reports the existence of any body-worn camera or in-car camera audio or video footage.
174. All officers observing a use of force by an FPD officer will be required to document their observations in writing before the end of shift.
175. FPD officers will not use conclusory statements, boilerplate, or canned language (e.g., “furtive movement” or “fighting stance”) without supporting incident-specific detail.
176. Where use-of-force reports are found to include material omissions or inaccuracies, FPD will take corrective action, including discipline as appropriate. Where the material omissions or inaccuracies are found to be deliberate, the employee will be disciplined, up to and including termination.
177. Officers who use or observe a reportable use of force but do not report it will be disciplined, up to and including termination.
178. Any FPD officer learning of a previous use of force by another FPD officer, whether from an FPD employee or a non-employee civilian, will immediately report the use of force to a supervisor unless the FPD officer is certain that the use of force was previously reported.
179. FPD policies will include particularized reporting requirements for certain types of force, such as ECWs, canines, OC Spray, and lethal force, including the use of firearms.
2. Force Response and Investigation
180. With the exception of the lowest level of reportable force (Type 3), an FPD supervisor will immediately respond to the scene of every reportable use of force by an FPD officer. The duties of the responding supervisor will include, at a minimum: interviewing all witnesses to the use of force; directing the gathering and preservation of evidence related to the
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use of force, consistent with paragraph 384 of this Agreement; ensuring that both officers and subjects of the use of force are given appropriate medical care; providing information, as appropriate, to family or friends of subjects of use of force who are injured; and taking steps to maintain calm and preserve the integrity of the scene. If notified, an FPD supervisor will respond to the scene of every use of force by another law enforcement agency within Ferguson's city limits. FPD will make a good-faith attempt to revise its mutual aid agreements with other agencies to ensure that FPD is notified when other agencies use force in Ferguson.
181. Scene management and investigation will be conducted by an uninvolved supervisor, i.e., a supervisor that neither ordered nor participated in the use of force.
182. Supervisors who conduct high-quality force investigations will receive preference for assignments and promotions. Supervisors who fail to adhere to FPD policy regarding use-offorce investigations, or conduct low-quality force investigations will be subject to corrective action or discipline as appropriate, including demotion.
183. The type of supervisory response and investigation will depend upon the level of force used and the surrounding circumstances. There will be three types of force for purposes of response and investigation within FPD:
a. Type 3 force is force that is reasonably expected to cause only transient pain and/or disorientation during its application as a means of gaining compliance, including pressure point compliance and joint manipulation techniques, but that is not reasonably expected to cause injury, does not result in an actual injury, and does not result in a complaint of injury. Type 3 force also includes the unholstering or pointing of a firearm at a subject and the pointing of an ECW at a subject. The use of Type 3 force requires that all officers using or observing force report and document the force as set out above, but does not require that a supervisor respond to the scene of the use of force or conduct a use-of-force investigation, absent extenuating circumstances to be set out in policy;
b. Type 2 force is force that causes an injury, could reasonably be expected to cause an injury, or results in a complaint of an injury, but does not rise to a Type 1 force. Type 2 force includes the use of an ECW; OC spray; weaponless defense techniques (e.g., elbow or closed-fist strikes, kicks, leg sweeps, and takedowns); impact weapons (when the use is not to the head, neck, or face); use of force
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against a restrained person; and canine apprehension (when no bite is involved). An uninvolved supervisor will investigate a Type 2 use of force and document the investigative findings in a written report; and c. Type 1 force includes lethal force; force resulting in death or serious bodily injury; force resulting in hospital admission; canine bites; more than three applications of an ECW on an individual during a single interaction, regardless of the mode or duration of the applications and regardless of whether the applications are by the same or different officers, or ECW application that lasts longer than 15 seconds, whether continuous or consecutive; and any vehicle pursuit. Any officer-involved shooting and any death while in or as a result of being in police custody will be considered a “critical incident” and investigated consistent with the requirements in paragraph 185 below. Depending upon the exact type of force and surrounding circumstances, all other Type 1 uses of force will be investigated by an uninvolved supervisor or an outside entity or agency, pursuant to protocols developed in consultation with the Monitor and approved by DOJ. 184. Type 3 use-of-force investigations will be completed within 30 days; Type 2 investigations will be completed within 45 days; and Type 1 investigations will be completed within 60 days, absent reasonable cause, as approved by the Chief of Police, in which case the investigation will be completed in 90 days. Use-of-force investigations will be fully documented in writing and include appropriate consideration of all relevant evidence. 185. Within 180 days of the Effective Date, FPD will develop and implement policies and training on the immediate response to critical incidents that occur in Ferguson and the investigation of critical incidents that involve FPD officers in or outside of Ferguson. Critical incident policies and training will be developed in consultation with the Monitor and be approved by DOJ and will address: a. The immediate FPD response to a critical incident, including the steps that involved- and other FPD officers and dispatchers must take to protect the integrity of the investigation; minimize injury and loss of life (e.g. the provision of medical care); and de-escalate tensions until any outside investigative agency assumes control of the scene;
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b. Requirements for the investigation of critical incidents that must be adhered to by FPD or any agency whom FPD arranges to have conduct critical incident investigations on a regular or ad hoc basis; and
c. Communications protocols that ensure that when critical incidents occur, authorized City representatives communicate with the public and the media swiftly, openly, and neutrally, respecting areas where the law requires confidentiality. Policies will require that designated City representatives release all information lawfully permitted as soon as possible after a critical incident and on a continuing basis, unless there is a compelling investigatory, personnel or public safety reason not to release the information.
3. Force Review and Assessment
186. The determination of whether a use of force violates FPD policy will be based on a preponderance of the evidence standard.
187. All Type 3 uses of force will be reviewed and approved by the supervisor, or an investigation initiated, as appropriate, within 24 hours.
188. Except as noted below, all Type 2 use-of-force investigations will be reviewed by the involved officer's chain of command within a specific, reasonable period of time to be stated in FPD policy.
189. Within 180 days of the Effective Date, FPD will develop and implement a Force Review Board (FRB) to determine whether certain use-of-force incidents were consistent with FPD policy and law, and to evaluate all use-of-force incidents from a tactics, training, policy, equipment, officer safety and agency improvement perspective. The FRB will:
a. Except where the administrative investigation of the incident is conducted by an outside agency, review all Type 1 investigations, all Type 2 investigations where there was an allegation of force-related misconduct, and a sample of all other Type 2 investigations;
b. Be comprised of three voting members: an FPD commander with skills and experience different from those of the other FRB members, who will chair the Board (“Chair”); a training supervisor; and a third member with law enforcement experience, who will be subject to approval by DOJ. The Chair may include any consultants, subject matter experts, or other civilians the Chair feels would be 44

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helpful in reviewing particular incidents. The FRB also may consult with other advisors as necessary. Consultants and observers, however, will not be permitted to vote; and c. Conduct comprehensive and reliable reviews of investigations, and issue its findings, within 14 days of submission to the FRB. The scope of the FRB's review will not be limited to assessing an officer's decision making at the moment the officer employed force. Rather, the FRB's review will include issues such as: the circumstances leading up to the use of force, tactical decisions, information sharing and communication, adequacy of supervision, equipment, training, any applicable medical response, and any commendable actions. The review will include consideration of the actions and inactions of all officers, supervisors, commanders, and dispatchers involved in the incident, as appropriate. 190. All use-of-force investigations reviewed by the FRB will be reviewed by the involved officer's chain of command within a specific, reasonable period of time to be stated in FPD policy. 191. Where the FRB finds that a use of force violates FPD policy, it will document its findings in writing and refer the matter to the disciplinary process as set out in Section XIX.B. of this Agreement. 192. Where the FRB determines that the force incident indicates a need for changes to policy, training, or equipment, it will document its findings in writing and advise the Chief of Police in writing, who will ensure that appropriate modifications occur and document their completion in writing. 193. Where the FRB determines that the use of force indicates a need for corrective action, such as training, it will advise the Chief of Police in writing, who will ensure that appropriate corrective action occurs and document its completion in writing. 194. The Chief of Police will approve all use-of-force investigation findings and all disciplinary adjudications. E. Ongoing Assessment and Improvement
195. Within 180 days of the Effective Date, the City will develop protocols for regularly, and at least annually, conducting cost-feasible data-driven and qualitative assessments of FPD's use-of-force practices. These assessments will be designed to ensure that FPD officers
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only use force in accordance with state and federal law as well as FPD policies and values. Assessments will involve the analysis of use-of-force data to identify officer-specific, unitspecific, and department-wide trends, and will include reviews of FRB and other force investigations; force reporting; officer injury reports and incidents in which medical assistance was requested or provided following a use of force; and complaints alleging excessive use of force. As part of this internal assessment process, the City and FPD will identify deficiencies and opportunities for improvement; implement appropriate corrective action or improvement measures; and document measures taken.
X. CRISIS INTERVENTION
196. FPD will implement a Crisis Intervention Team (CIT) first-responder model of police-based crisis intervention with community, health care, and advocacy partnerships to: (a) assist individuals who are in mental health crisis or who are in crisis related to the influence of alcohol or drugs (“individuals in crisis”); (b) reduce the need to use significant force against individuals in crisis and improve the safety of patrol officers, individuals in crisis and their families, and others within the community; (c) provide the foundation necessary to promote community solutions to assist individuals with mental illness; and (d) reduce the need for individuals with mental illness to have further involvement with the criminal justice system.
A. Crisis Intervention Coordinator
197. Within 180 days of the Effective Date, FPD will designate an officer, at the rank of Lieutenant or above, to act as a Crisis Intervention Coordinator (“Coordinator”) to better facilitate communication between FPD and members of the area mental health community and to increase the effectiveness of FPD's crisis intervention program. The Coordinator shall identify, develop, and maintain partnerships with program stakeholders and shall serve as a point of contact for advocates, individuals with mental illness, their families, caregivers, professionals, and others associated with the mental health community.
198. The Coordinator will be responsible for ensuring the selection of appropriate candidates for designation as specialized CIT officers consistently with the requirements set forth in this Agreement. The Coordinator shall also ensure that, within one year of the Effective Date, there are enough specialized CIT officers to have at least one CIT officer on duty and available to respond to calls and incidents involving an individual in crisis at all times. The Coordinator
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will assess the number of CIT officers necessary to achieve this goal, identify gaps in coverage of particular shifts and on call schedules, and develop strategies to fill those gaps. The Coordinator will also be required to ensure that officers and dispatchers are appropriately responding to CIT-related calls, and that their efforts and successes are appropriately publicly recognized.
B. Specialized Crisis Intervention Officers
199. Designation as a specialized CIT officer will be voluntary. To the extent feasible, these officers will continue to be assigned to their regular patrol divisions and will maintain their standard patrol duties, except when called upon to respond to incidents or calls involving individuals in crisis. Officers who serve as CIT officers will receive a salary increase during their service in the role, to reflect the importance and the additional demands of the position.
200. To be eligible for consideration, officers must have at least three years of experience as a law enforcement officer. FPD will assess each applicant's fitness to serve as a CIT officer by considering the applicant's written application, supervisor recommendations, disciplinary file, and an in-person interview. Officers with a history of complaints regarding the use of excessive force that receive a disposition of “sustained” or “not sustained” will be presumptively ineligible to be CIT officers.
201. CIT officers who are dispatched to an incident involving an individual in crisis will have primary responsibility for the scene, unless a higher-ranking officer has assumed responsibility for the scene. In that case, the higher ranking officer will seek the input of a CIT officer regarding strategies for resolving the crisis.
202. In addition to the crisis intervention training provided to all FPD officers, CIT officers will receive specialized CIT-specific training consistent with FPD's Training Program and the terms of this Agreement, including the requirements set forth in Section XVII.
C. Crisis Intervention Requirements
203. FPD will, where practicable, dispatch at least one specialized CIT officer, as well as one additional officer, to all incidents involving an individual in crisis. FPD will develop and implement appropriate policies to ensure that, in situations in which a CIT officer is not available to respond immediately to a call or incident involving an individual in crisis, FPD's response is consistent with the principles of the crisis intervention program.
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204. FPD will encourage specialized CIT officers to redirect individuals with mental health and substance abuse issues to the health care system, where appropriate.
205. FPD policy will provide that a crisis intervention response may be necessary even in situations where there has been an apparent violation of law. This policy shall not prevent responding FPD officers from conducting law enforcement action necessary to address an urgent public safety situation.
D. Ongoing Assessment and Improvement 206. Within 180 days of the Effective Date, the City and FPD will develop protocols for at least annually conducting cost-feasible data-driven and qualitative assessments of FPD’s CIT first responder model of police-based crisis intervention. These assessments will be designed to ensure FPD's crisis intervention practices allow FPD to provide an appropriate response to an incident involving an individual in crisis, including reducing injuries to officers, persons in mental health crisis, and the public. Assessments will include review and analysis of whether CIT officers were properly dispatched to calls for service involving an individual in crisis, as well as targeted and systematic review of CIT conduct where CIT officers did respond. As part of this internal assessment process, the City and FPD will identify deficiencies and opportunities for improvement; implement appropriate corrective action and improvement measures; and document measures taken.
XI. SCHOOL RESOURCE OFFICER PROGRAM 207. Ferguson’s existing school resource officer (SRO) program offers a unique opportunity to build trust and cooperation between Ferguson's youth and law enforcement on a daily basis. This program, through education and the promotion of mutual respect, also provides Ferguson the opportunity to reduce students’ unnecessary involvement in the juvenile and criminal justice systems, which can have profound negative effects on students’ engagement and success in school and the broader community. In light of these dynamics, FPD agrees that its SRO program will build positive relationships between officers and youth, avoid unnecessary negative police actions such as arrests, and develop alternatives that promote keeping students in school and out of the criminal justice system.
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A. Revision of SRO Program and Training and Qualifications of SROs
208. FPD agrees to use SROs who: (a) have the ability to work effectively with students, parents/guardians, teachers, and school administrators; (b) possess strong interpersonal communication skills; (c) have the ability to competently engage in public speaking; (d) have effective teaching skills; (e) have effective counseling skills; (f) understand the importance of diversion programs and alternatives to arrest for youth; (g) are respectful to the youth and families of all backgrounds and cultures; and (h) have an interest in promoting and enriching the lives of young people. In selecting an SRO, the recommendation of the School District and the principal of the school to which the officer will be assigned shall be considered.
209. FPD agrees to ensure that, after an officer is selected for the position of SRO and prior to assuming SRO responsibilities, the officer receives sufficient training that is consistent with FPD's Training Plan the terms of this Agreement.
210. Within 120 days of the Effective Date, in consultation with the FergusonFlorissant School District (FFSD) and consistent with the agreements with the FFSD, the Monitor, and subject to approval by DOJ, FPD will develop an SRO program and operations manual that clearly defines the role of each SRO and promotes the role of SRO as one of educator, counselor, mentor, and law enforcement problem-solver, consistent with best practices. The manual will address youth-appropriate law enforcement techniques; use of restorative approaches to address student behaviors; arrests of students; notification to parents/guardians when students are arrested; searches of students; special considerations regarding use of force within and around schools; procedures to receive and respond to complaints regarding SROs; selection of SROs and SRO assignments; training requirements; weapons qualifications; required equipment and supplies; opportunities for community-stakeholder meetings; SROs’ role in identifying candidates for FPD's Explorer program and the City’s Police Academy Assistance program; and the collection, analysis, and use of data regarding law enforcement activities in the FFSD schools.
211. Within 90 days of the Effective Date, FPD agrees to review and make a goodfaith effort to amend its Memorandum of Understanding (MOU) with FFSD, to delineate authority and specify procedures for law enforcement interactions with students while on school grounds, consistent with this Agreement. Before providing SRO services at any school in which FPD is not currently engaged, the City will enter into an MOU with the appropriate school
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district consistent with this Agreement. Further, any subsequent MOU with FFSD shall be consistent with this Agreement.
B. SRO Non-Involvement in School Discipline
212. FPD agrees to ensure that SROs and other FPD officers participate only in situations where police involvement is necessary to protect physical safety and do not participate in any situation that can safely and appropriately be handled by a school's internal disciplinary procedures. Incidents involving minor offenses committed by students, including, but not limited to, disorderly conduct, peace disturbance, loitering, trespass, profanity, dress code violations, and fighting not involving a weapon and not resulting in physical injury, will be considered school discipline issues to be handled by school officials rather than criminal or municipal code violations warranting FPD involvement, unless necessary to protect the physical safety of any person. Nothing herein is intended to prevent victims from reporting crimes or seeking assistance from SROs or other FPD officers.
213. FPD agrees to ensure that SROs and other FPD officers who intervene in an incident in order to ensure physical safety employ age-appropriate conflict resolution techniques to de-escalate the situation whenever possible and refer the matter to school personnel at the earliest opportunity.
214. FPD agrees to ensure that SROs continue to contribute positively to their school communities by serving as educators in addition to their responsibilities to protect the safety of students and school personnel. Nothing in this Agreement limits or is intended to limit FPD's role in providing mentoring, counseling, education, and support to students, faculty and school officials.
C. Minimizing School Arrests and Force
215. FPD agrees to develop and implement policies that discourage the arrest of students on school grounds except as necessary to ensure the physical safety of students, school personnel, and the public. The City agrees not to execute arrest warrants for municipal ordinance violations against students during school hours or school-sanctioned events on school grounds.
216. FPD agrees to ensure that officers document in sufficient detail the basis for any arrest on school grounds, including any factors that justify arresting the youth at school and factors that support a determination of probable cause.
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217. FPD agrees to ensure that, upon arresting a student, officers notify the student's parent/guardian of the arrest as soon as practicable. The officer must notify the student's parent/guardian of the nature of the incident leading to arrest, the arrest charges, and if the student was removed from school grounds, the location of the student and relevant contact information. If a parent/guardian is not notified within two hours of the arrest, the arresting officer must document, in writing, the reason for the delay.
218. FPD agrees to ensure that officers do not use restraints—including, but not limited to, handcuffs—on a student on school grounds, unless the objective circumstances indicate that the restraints are necessary to ensure the immediate physical safety of any person.
219. An FPD officer may not remove a student from school grounds with the intent of circumventing the requirements of this Agreement.
220. Within one year of the Effective Date, FPD agrees to assist FFSD to develop a conflict resolution program in the schools; a system for referrals to school discipline personnel; alternatives to arrest; and diversion programs for students who are charged with offenses to minimize the involvement of students and youth in the juvenile and criminal justice systems. These programs will be structured to assess the underlying causes of the student's misbehavior and to develop and implement steps to address those underlying causes, and, if authorized by FFSD, will be developed in consultation with the Monitor and be approved by DOJ.
221. FPD will require that SROs exercise their discretion to refer youth to alternatives, rather than arrest them, whenever possible.
222. FPD agrees to ensure that SROs and other FPD officers do not use force on a student on school grounds unless necessary to address an immediate threat to the physical safety of the officer or any other person. In those situations where an officer must use force, the officer must act in accordance with all applicable use-of-force policies and the terms of this Agreement.
223. FPD will ensure that FPD officers de-escalate school-based incidents whenever possible. SROs should work with the FFSD to emphasize the use of restorative approaches to address behaviors and to minimize the use of law enforcement intervention.
D. SRO Supervision and Evaluation
224. FPD agrees to ensure that supervisors visit SROs to observe SRO activity in schools at least once every two weeks.
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225. FPD agrees to ensure that supervisors solicit formal feedback on SRO performance from teachers, school administrators, parents/guardians, and students at least once a semester.
226. FPD agrees to ensure that, at least once per semester, SRO supervisors meet with SROs and school administrators to review incidents in which SROs and/or other FPD officers were involved in the discipline, arrest, or restraint of a student. The review will evaluate the effective use of skills learned through professional development and identify areas for continuous improvement.
E. Ongoing Assessment and Improvement 227. Within 180 days of the Effective Date, the City and FPD will develop protocols for at least annually conducting cost-feasible data-driven and qualitative assessments of FPD’s SRO program. These assessments will be designed to ensure that FPD's SRO program is accomplishing the objectives of reducing students’ unnecessary involvement in the criminal justice system, building trust between students and Ferguson law enforcement, and ensuring the protection and safety of students. Assessments will include review and analysis of calls for service in schools, as well as officer uses of force, arrests, or charges brought on school grounds; decisions not to arrest when arrest was permitted by FPD policy; complaints regarding FPD officers on school grounds; and student and staff perceptions of school safety and officer fairness, including breakdowns by protected characteristics for all assessments. As part of this internal assessment process, the City and FPD will identify deficiencies and opportunities for improvement; implement appropriate corrective action and improvement measures; and document measures taken.
XII. BODY-WORN AND IN-CAR CAMERAS 228. In an effort to bring continued transparency regarding police activities; improve the effectiveness and reliability of use-of-force and misconduct investigations; enhance supervision of FPD stops, searches, and arrests; and provide material for officer training, the City will equip FPD officers with body-worn and in-car cameras, and will ensure that such devices are used consistent with law and policy. All aspects of FPD's use of body-worn and in-car cameras will be designed and implemented to promote transparency, provide learning
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opportunities to officers, and increase officer safety, while ensuring officer accountability and respect for individual privacy rights.
A. Body-Worn and In-Car Camera Requirements
229. Within 180 days of the Effective Date, the City agrees to ensure that all FPD patrol officers, patrol supervisors, jail personnel, and other FPD employees reasonably expected to regularly interact with the public are equipped with, and required to wear while on duty, fully functioning body-worn cameras and microphones. The City further agrees to ensure that all marked FPD vehicles that are in use are equipped with fully functioning in-car cameras with microphones. Within this time period, the City will work with the vendor to obtain any hardware, software, or other equipment necessary to enable body-worn and in-car camera recordings to be stored, organized, maintained, and retrieved consistent with the terms of this Agreement. The City has already secured an agreement with a vendor to meet the objectives within this Agreement.
230. The City agrees to commit sufficient funds to maintain all body-worn and in-car cameras in working order, and to retain staffing hours sufficient to maintain and retrieve camera footage for investigatory, training, evidentiary, and public access purposes.
231. Within 60 days of the Effective Date, the City agrees to develop and implement policies to direct the use of body-worn and in-car camera equipment. Such policies will establish clear and specific direction regarding when officers are required to activate body-worn and in-car camera devices, as well as when officers must stop recording during an event.
a. The body-worn camera policy will require activation of body-worn cameras for all investigatory stops; all arrests; all searches, except where specifically articulated and approved privacy considerations require a search not to be recorded; all encounters with subjects believed to be in a mental health crisis; and other scenarios as appropriate; and
b. The in-car camera policy will require activation of in-car cameras for all traffic stops and pursuits until the motor vehicle stop is completed and the stopped vehicle departs, or until the officer's participation in the motor vehicle stop ends; all requests for consent to search a vehicle, non-consensual vehicle searches, and canine deployments; all prisoner transports; and other scenarios, as appropriate.
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232. Consistent with best practices, officers shall have discretion not to record in certain situations, such as when interviewing victims or witnesses who are reluctant to cooperate if recorded. In such cases, officers shall articulate on camera their reason for not recording the activity. FPD policy will expressly describe the situations in which officers have the discretion not to record and will make clear that, except in such situations, officers must record all interactions with members of the public.
233. The use of a body-worn camera shall not alter or satisfy an officer's obligation to use an in-car camera as required by policy, nor shall use of an in-car camera alter or satisfy an officer's obligation to use a body-worn camera as required by policy.
234. Officers shall document the existence of any camera footage on all required reports, and shall immediately report to their supervisor, and in writing, any non- recorded event that should have been recorded under FPD policy, as well as any interruptions or terminations of recordings. Intentional failure to activate or continue recording devices as required, or use otherwise contrary to FPD policy, shall result in discipline.
235. Officers shall inform individuals that they are being recorded at the earliest reasonable and safe opportunity.
236. The City agrees to ensure that recording equipment assigned to officers or their cars is functioning properly at the beginning and end of each shift. Officers shall report immediately any improperly functioning equipment. The City agrees to supplement officer equipment checks by developing and implementing a schedule for testing body-worn and in-car camera recording equipment to confirm that it is in proper working order.
237. The City agrees to ensure that body cameras are worn in a manner that prevents obstruction of the camera viewpoint to the greatest extent possible.
238. The City agrees to ensure that body-worn cameras are only used in conjunction with official law enforcement duties. Cameras shall not be used to record encounters with known undercover officers or confidential informants; when officers are engaged in personal activities or conversations unrelated to their official duties; when officers are having conversations with other FPD personnel that involve case strategy or tactics; and in any location where individuals have a reasonable expectation of privacy (e.g., restroom or locker room).
239. Officers shall be prohibited from accessing body- or in-car camera footage for personal use or from copying camera footage to their own personal computers, computers
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accessible by the general public, or public websites. Nothing within this paragraph shall preclude the City from releasing body-worn or in-car camera footage to the public consistent with the requirements of paragraph 249 below.
B. Supervisory Responsibilities Related to Body-Worn and In-Car Cameras
240. Supervisors shall ensure that officers under their command use body-worn and incar recording equipment consistent with policy and this Agreement and shall hold officers under their command accountable when they do not use body-worn and in-car recording equipment consistent with policy and this Agreement. An investigation with respect to why a body-worn camera or in-car camera was not used will be initiated. The failure to use body worn and in-car camera equipment as required by FPD policy will result be grounds for discipline consistent with FPD policy.
241. Supervisors shall be required to periodically inspect body worn cameras and incar video cameras for functionality. Supervisors shall immediately report any equipment problem to a designated FPD or City official. The City agrees to take all necessary steps to promptly repair equipment to ensure consistent availability of fully functioning body-worn and in-car cameras for all appropriate officers.
242. The City agrees to ensure that supervisors regularly review body-worn and in-car camera recordings in a manner that promotes close and effective supervision and that is consistent with this Agreement. Specifically, supervisors shall:
a. Identify and review all relevant body-worn and in-car camera recordings as part of conducting mandatory supervisory reviews of specific incidents, such as stops, searches, arrests, or uses of force. If an Electronic Control Weapon (ECW) was used during an incident, supervisors shall also obtain and review relevant ECW camera footage, if any;
b. Identify and review all available body-worn and in-car camera recordings in the course of conducting misconduct investigations. If an ECW was used during an incident, supervisors shall also obtain and review relevant ECW camera footage, if any;
c. Identify and review all available body-worn and in-car camera recordings of all officers listed in any FPD report regarding any incident involving injuries to a prisoner or an officer, uses of force, vehicle pursuits, or misconduct complaints.
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If an ECW was used, supervisors shall also obtain and review relevant ECW camera footage, if any. d. Regularly, and at least on a quarterly basis, conduct both systematic and random audits of the body-worn and in-car camera recordings of officers under their command in order to assess the quality and appropriateness of officer interactions with the public, identify training or professional development needs, and ensure that officers are using body-worn and in-car camera equipment consistent with policy and this Agreement. 243. Supervisors shall incorporate the knowledge gained from reviewing body-worn and in-car camera footage into their ongoing evaluation, supervision, and training of officers. 244. The City will ensure that the Training Coordinator, in consultation with other FPD supervisors, will conduct regular reviews of body-worn camera and in-car camera footage to identify training needs and scenarios, which shall be addressed by, and incorporated into, training curricula and programs. C. Storage and Public Availability of Recordings
245. Within 180 days of the Effective Date, the City agrees to develop and implement protocols regarding the storage, retention, and public accessibility of body-worn and in-car camera recordings.
246. The City will ensure that all recordings are stored by officers in a centralized location or on a remote server at the end of the officer's shift and are properly categorized and accessible within 24 hours of the recording being made. Recordings will be categorized according to the kind of incident or event captured in the footage.
247. The City agrees to take appropriate precautions to ensure the integrity and security of every recording, including through the adoption of specific policies for logging and tracking all body-worn and in-car camera recordings.
248. The City will retain and preserve all non-evidentiary recordings for at least 90 days, and all evidentiary recordings for at least two years or, if a case remains under investigation or in litigation, until at least one year after the final disposition of the matter, including appeals. To the extent that this Agreement is still in effect five years after the Effective Date, the Parties agree to reconsider the retention timelines herein.
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249. In order to continue to promote transparency, foster accountability, and enhance public trust in FPD, the City agrees to make body-worn and in-car camera recordings publicly available to the maximum extent allowable under Missouri law and consistent with individual privacy rights.
D. Ongoing Assessment and Improvement 250. Within 180 days of the Effective Date, the City and FPD will develop protocols for regularly, and at least annually, conducting cost-feasible data-driven and qualitative assessments of body-worn and in-car camera use. These assessments will be designed to ensure that FPD officers are using body-worn and in-car cameras in a manner that increases transparency and accountability, and that FPD is using body-worn and in-car cameras as training and officer safety tools. Assessments will include review of use of cameras for training purposes; any failures to use recording equipment in accordance with policy; and data regarding recording equipment deficiencies or malfunctions. As part of this assessment process, the City Manager and Chief of Police will identify deficiencies and opportunities for improvement; implement appropriate corrective action and improvement measures; and document measures taken.
XIII. SUPERVISION 251. First line supervisors and FPD command staff play a critical role in ensuring lawful, effective, and community-centered policing. The City will ensure that FPD supervisors provide the oversight and guidance necessary for officers to police lawfully, safely, and effectively; establish and enforce a culture of community policing throughout the Department; and prevent, identify, and correct misconduct. A. Supervisory Character and Duties 252. FPD supervisors shall model appropriate conduct, including abiding by the highest standards of integrity; strictly adhering to the Constitution and other laws, FPD policy, and the terms of this Agreement; and consistently demonstrating professionalism, courtesy, and respect towards all people with whom they interact. All individuals selected to serve in a supervisory capacity shall have a demonstrated record of conducting themselves in a manner that is consistent with these standards. Individuals who have misconduct allegation(s) pending, or
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who have had a Class 1 misconduct allegation sustained within the previous 12 months, shall be presumptively ineligible to be promoted to supervisor.
253. FPD supervisors shall provide close and effective supervision and accordingly shall: (a) establish and enforce throughout the department the expectation that officers will police in a manner that is consistent with the Constitution and other laws, FPD policy, and community policing principles; (b) provide leadership, counseling, direction, and support to officers as needed; (c) lead efforts to engage individuals and groups and ensure that officers are working actively to engage the community and increase public trust; (d) respond to, document, review, and investigate stops, searches, citations, arrests, uses of force, and other officer conduct as required by policy and this Agreement; (e) identify misconduct and ensure that it is adequately addressed through corrective action, training, or discipline; and (f) identify training and professional development needs and opportunities on an individual, squad, and department-wide level.
254. FPD supervisors shall document the performance of their supervisory duties in FPD’s records management system or the Early Intervention System, as appropriate. Supervisors shall be required to document, at a minimum:
a. All disciplinary referrals and non-disciplinary counseling; b. All actions taken to ensure officers are performing community outreach, working
to build public trust, and otherwise engaging in community policing; c. All occasions where supervisors respond to the scene as required by policy; d. All reviews of officer conduct, including reviews of use of force and other reports
as required by policy and this Agreement; and e. Any training or professional development needs supervisors identify, as well as
the specific actions taken in response to those needs. 255. Supervisors will be held accountable for the quality and effectiveness of the supervision they provide. Supervisors’ performance evaluations and promotions will be based upon the fulfillment of supervisory duties. The failure to fulfill supervisory duties will result in corrective action, training, or discipline, as deemed appropriate by the Chief of Police. B. Supervisor Staffing and Officer Assignment to Supervisors
256. Within 180 days of the Effective Date, the City agrees to develop and implement a staffing plan that enables close and effective supervision. This staffing plan will be developed
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in consultation with the Monitor, consistent with best practices and the requirements of this Agreement, and subject to the approval of DOJ.
257. The City will have an adequate number of captains and lieutenants to ensure close and effective supervision of first line supervisors, and an adequate number of first line supervisors to allow for close and effective supervision of officers. On-duty first line patrol supervisors shall be available throughout their shift to respond to the field to provide supervision to officers under their direct command and, as needed, to provide supervisory assistance to other units.
258. The City will ensure that all FPD officers are assigned to supervisors in a manner that provides consistency in policing practices from shift to shift and among geographic areas in the City. The City will assign enough sergeants so that the span of control in the field for sergeants is no more than eight officers. Officers should work with no more than three supervisors who will be responsible for evaluating a group of officers they consistently supervise based on supervisor observations and data on officer performance. Data on officer performance and activity must be developed that can be used by sergeants to measure officer performance.
C. Early Intervention System 259. Within one year of the Effective Date, the City will purchase, install, train FPD supervisors on, and implement an Early Intervention System (EIS) that is consistent with this Agreement. The EIS will be designed to serve as a management tool that promotes supervisory awareness and proactive identification of potentially problematic behavior among officers, and ensures the delivery of individualized interventions to correct identified problematic or potentially problematic officer behavior. 260. The EIS will include a computerized relational database that will be used to collect, maintain, integrate, and retrieve department-wide data, as well as data for each officer. In consultation with the Monitor and to be approved by DOJ, the City will develop policies setting forth in detail the specific information that the EIS will capture, as well as data storage, data retrieval, reporting, data analysis, pattern identification, supervisory use, supervisory/departmental intervention, documentation, audits, access to the system, and confidentiality of personally identifiable information.
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261. The City may either enhance its current data management system or contract with another qualified service provider to implement the EIS relational database. The parties agree that the City will procure a satisfactory system to fulfill the requirements of the EIS.
262. The EIS relational database will capture all information necessary to ensure supervisory awareness and the early identification of problematic individual and departmentwide conduct. Among the information captured will be: (a) all uses of force; (b) all injuries and deaths to persons in custody; (c) all instances in which force is used and a subject is charged with Failure to Comply, Resisting Arrest, Assaulting an Officer, Disorderly Conduct, or similar charges; (d) all instances in which an officer issues three or more citations during a single encounter; (e) violations of FPD's body-worn and in-car camera policies; (f) all instances in which FPD learns that a declination to prosecute any crime or municipal code violation was based upon concerns of the Prosecutor about an officer's credibility or that a motion to suppress evidence was granted on the grounds of a constitutional violation by an FPD officer; (g) all misconduct complaints, including the disposition of each allegation; (h) judicial proceedings where an officer is the subject of a Full Order of Protection or other restraining order, which officers shall be required to report; (i) all criminal proceedings initiated against an officer, as well as all civil or administrative claims filed with or against the City or its agents that result from the actions of FPD personnel; (j) all disciplinary action taken against employees; (k) all non-disciplinary corrective action required of employees; (l) all awards and commendations received by employees, including those received from civilians; (m) sick leave usage, especially in concert with regular days off and holidays; and (n) training history for each officer. The EIS will include appropriate identifying information for each involved employee (e.g., name, badge number, shift, and supervisor if known) and demographic information regarding each civilian (e.g., protected characteristics).
263. All required information shall be entered into the EIS database in a timely, accurate, and complete manner by those FPD supervisors and other responsible individuals. All information captured within the EIS database will be organized and accessible in a manner that facilitates supervisory awareness and the early identification of problematic individual and department-wide conduct.
264. The EIS will allow for and require close monitoring of officer conduct, including peer-group comparisons between officers with similar assignments and duties. FPD will set and
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implement threshold levels for each EIS indicator which, when reached, will trigger supervisory review. The City will ensure that once a review of a particular officer has been triggered as a result of a particular threshold, each subsequent event involving the same indicator will trigger supervisory review. The Monitor and DOJ will review and approve the EIS threshold levels. In addition to using threshold indicators that trigger mandatory supervisory review, the City will ensure that FPD command staff and other supervisors regularly review EIS data to evaluate the performance of officers across all ranks, units, and shifts.
265. The City will ensure that FPD command staff collect and, at least quarterly, analyze EIS information related to supervisor, squad, and officer trends.
266. The City will ensure that FPD first line supervisors and Lieutenants review EIS data for all officers under their direct command at least monthly, and whenever an employee first comes under their supervision. At least quarterly, supervisors will review broader, pattern-based reports.
267. Within one year of the Effective Date, FPD will retain or internally develop the expertise necessary to implement individualized interventions to respond to identified problematic or potentially problematic officer conduct. Non-disciplinary interventions in response to threshold triggers and other identified areas of concern will be timely implemented and designed to assist officers in avoiding or correcting potentially problematic behavior. All interventions will be documented in writing and entered into the EIS. FPD will review, evaluate, and document in writing the progress and effectiveness of the intervention strategy.
268. The City will properly maintain all necessary equipment and software sufficient to permit implementation, maintenance, and use of the EIS as set out in this Agreement and FPD policy. The City will maintain all officer specific information in the EIS for at least one year following the officer's separation from FPD, unless prohibited by law. Information necessary for non-individual aggregate statistical analyses will be maintained indefinitely.
269. In addition to providing training to supervisors and others directly responsible for using the EIS as required in Section XVII.J, the City will also ensure that all FPD employees are provided with information regarding the scope and function of the EIS within 60 days of its implementation.
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D. Ongoing Assessment and Improvement
270. Within 180 days of the Effective Date, the City and FPD will develop protocols for regularly, and at least annually, conducting cost-feasible data-driven and qualitative assessments to ensure that FPD officers are being closely and effectively supervised, and that supervisors are conducting themselves with integrity and are consistently performing the supervisory duties required by FPD policy. As part of this assessment process, the City and FPD will identify deficiencies and opportunities for improvement; implement appropriate corrective action and improvement measures, including training or staffing adjustments; and document measures taken.
XIV. OFFICER ASSISTANCE AND SUPPORT
271. Physical and mental wellness has a direct impact on officers’ ability to perform their jobs safely, constitutionally, and effectively. Fatigue and stress impact health, judgment, and performance and can thus negatively impact officer well-being. Recognizing these dynamics, and the pressures of being a law enforcement officer generally, the City will continue its officer assistance and support efforts to support officer resilience and their physical and emotional health and will provide officers with resources to maintain their physical and mental health by implementing the paragraphs below.
A. Support Services for Officers and Their Families
272. The City currently provides an Employee Assistance Program (EAP) to city employees, including police officers, which allows access to no- or low-cost counseling and mental wellness services including: confidential counseling services; crisis counseling; stress management counseling; and mental health evaluations. The City will continue to provide the current EAP, or a similar program, to FPD officers. The City will review this program to ensure that it comports with best practices and current professional standards.
273. The City will compile, periodically review and revise as necessary, and maintain a list of mental and physical health service providers available as part of the EAP to all officers and employees.
274. Mental health counseling services provided to FPD employees will remain confidential in accordance with federal law and generally accepted practices in the field of mental health care.
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275. The City will require and specify a mental health evaluation before returning an officer to full duty from administrative or desk duty following a traumatic incident (e.g., serious injury, officer-involved shooting, officer-involved accident involving fatality, or all other uses of force resulting in death or serious injury) and as directed by the Chief of Police or the Director of Human Resources.
276. Officers shall not be permitted to work more than 14 hours per day or 64 hours per week, except under exigent circumstances, such as natural disaster, public demonstrations, or periods of civil unrest, during which rest and recovery periods shall be in keeping with relevant protocols, as set out below.
277. FPD officers will continue to have access to fitness equipment, free of charge, at Ferguson’s Firehouse Number 1 or at the Ferguson community center, as long as the City retains control over such buildings.
278. The City currently contracts with an identity fraud service for City employees. The City will continue to contract for the services that it currently provides, or similar services, and may require employees to pay the applicable charge for such services.
B. Officer Support During Public Demonstrations and Periods of Civil Unrest
279. The City will develop well-being protocols to be activated during officer deployments during public demonstrations or civil unrest. These protocols will include:
a. Close monitoring and periodic affirmative checks of officers’ well-being by supervisors;
b. Availability of mental health and medical professional(s) to monitor officers and diagnose potential health issues;
c. Inclusion of health and safety guidance during pre-deployment briefings; d. Close monitoring of officer fatigue and indications of stressors; e. Implementation of measures to ensure that officers are given adequate time off to
rest and recover; f. Guidance for responding to threats to officers or their families that are extreme,
immediate, and credible; and g. During prolonged periods of demonstrations or unrest, the deployment of police
counselors or psychologists to provide individual counseling to officers and their family members.
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C. Ongoing Assessment and Improvement 280. Within 180 days of the Effective Date, the City Manager and Chief of Police will develop cost-feasible protocols for regularly, and at least annually, assessing FPD's officer assistance and support programs to ensure the City is providing officers with support to maintain their physical and mental health. As part of this assessment process, the City Manager and Chief of Police will identify deficiencies and opportunities for improvement; implement appropriate corrective action and improvement measures; and document measures taken.
XV. RECRUITMENT 281. Transforming FPD into a law enforcement agency that has the confidence of the entire Ferguson community and that consistently polices effectively and constitutionally requires that the City retain a diverse workforce of highly qualified officers. Highly qualified officers are those who have respect for and knowledge of law; a keen sense of integrity and ethics; are skilled communicators and problem-solvers; are slow to lose their temper; and who have a service mentality alongside courage, initiative, common sense, humility and civility. A broad range of diversity throughout the ranks of the Department—such as diversity in life experience, cultural background, race, ethnicity, gender, sexual orientation, and language—fosters the highquality policing described above and is critical to improving understanding and effectiveness in dealing with all communities. Given recent events, many potential law enforcement officers may not recognize the opportunity that working on the Ferguson police force provides. The City and FPD therefore must make greater effort than would many municipalities and police departments to attract and retain this high-quality, diverse workforce. The recruitment requirements set out below are intended to continue to ensure these efforts. A. Recruitment Plan 282. Within 180 days of the Effective Date, the City agrees to develop, in consultation with the Neighborhood Policing Steering Committee, once established, a written Recruitment Plan that includes clear goals, objectives, and action steps for attracting and retaining a highquality and diverse work force with the attributes described in paragraph 281 above. The Recruitment Plan will be consistent with best practices and subject to the approval of the Monitor and DOJ.
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283. The City agrees that the Recruitment Plan will, at a minimum, require the following:
a. That the City will offer salaries that will place FPD among the most competitive similarly sized agencies in St. Louis County;
b. Affirmative recruitment outreach to a broad spectrum of community stakeholders, including community meetings in each Ward regarding recruitment, and outreach to local colleges, high schools, criminal justice students, and members of the military;
c. Broad distribution of recruitment information, including information regarding career opportunities, the Academy Assistance Program, compensation, the testing and hiring process, and applicable deadlines and requirements. Such information will, at a minimum, be readily accessible on City and FPD websites and available upon request to City or FPD officials;
d. That candidates be allowed to submit initial applications online to the Director of Human Resources;
e. That an associate’s degree or higher or military service with separation under honorable conditions or any service-connected disability where, with or without reasonable accommodations, the individual can perform the essential functions of the job, will be positive factors in hiring for open FPD positions; and
f. Opportunities for officers, civilians, and members of City government to assist the City’s efforts to attract a broad spectrum of highly-qualified applicants.
284. The City will implement the Recruitment Plan within 60 days of its being approved. The Chief of Police will articulate the requirements to rank and file officers, and the City Manager, in consultation with the Chief of Police, will revise the plan annually, in consultation with the Monitor and DOJ.
285. Within 120 days of the Effective Date, the City will conduct an in-depth review of its current hiring processes and hiring criteria to ensure that no process, criterion, or requirement has a statistically significant disparate impact on members of a protected group. If the City determines that any step in the hiring process may result in a disparate impact based on protected characteristics, the City will determine whether there are alternative selection procedures
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available that would select equally highly-qualified candidates while having less of a disparate impact and if there are, will implement those alternative selection procedures.
B. Ferguson Police Department Academy Assistance Program
286. The City agrees to continue the FPD Academy Assistance Program to seek qualified, local candidates to serve as police officers.
287. The FPD Academy Assistance Program will continue to be available to any individual eligible to attend the St. Louis County and Municipal Police Academy (“Academy”), with a preference for Ferguson residents, low-income individuals, and graduates of the FergusonFlorissant School District, Hazelwood School District, or Riverview Gardens School District. The City agrees to continue its Academy Assistance Program which provides:
a. One candidate will be selected every year to apply to the Academy as an Open Enrollment Recruit;
b. That the program will cover costs associated with applying to and attending the Academy as an Open Enrollment Recruit, and will allow the recipient to work for the City of Ferguson during which time he/she will receive the same employee benefits as other similarly-situated employees; and
c. Recipients will not have to repay the amount of the assistance after completing three years of service as a full-time Ferguson Police Officer.
C. Background Investigation and Screening System
288. The City agrees to the following background investigation and screening protocol for hiring of sworn police officers and shall implement such protocols within 90 days of the Effective Date. These protocols will require:
a. A full psychological screening of candidates who are selected for conditional offers of employment by an appropriately qualified and trained psychiatrist or psychologist;
b. A full background investigation that includes a check of police records, education, employment, military history, credit history, and driving records;
c. A review of personnel files from candidates’ previous employment, unless the City is unable to obtain such files after making all reasonable efforts, and a requirement that FPD seek to speak with the candidates’ previous supervisor(s);
d. A thorough, objective, and timely pre-employment investigation that includes
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requesting a candidate’s history of using lethal and less lethal force, use-of-force training records, and complaint history if a candidate has previous law enforcement experience; e. A polygraph or other comparable test of candidates who are selected for conditional offers of employment; f. Contacting the Missouri Peace Officers Standards and Training (POST) program to review the license status and any known disciplinary history of potential hires before making an offer of employment; g. Checking the National Decertification Index (NDI) administered by the International Association of Directors of Law Enforcement Standards and Training (IADLEST); h. Determining whether the candidate has been named in a civil action in either St. Louis County and/or in the County where the officer lives (and elsewhere as feasible), including by checking Case.net, and evaluating the relevancy of the legal action; and i. Implementing validated pre-employment screening mechanisms to ensure temperament and skill-set suitability for policing. 289. The background investigation and screening need not be completed for candidates whose applications do not meet the minimum criteria, or for candidates who do not advance beyond the initial interview. The background investigation and screening information will be documented and maintained with the candidate’s employment application. Consistent with its obligations to review hiring processes to ensure they do not have a statistically significant disparate impact on a protected group, the City will ensure that the decision to exclude an applicant following the background investigation is documented and independently reviewed by the Director of Human Resources. D. Ongoing Assessment and Improvement
290. Within 180 days of the Effective Date, the City and FPD will develop protocols for regularly, and at least annually, conducting cost-feasible data-driven and qualitative assessments of its recruitment efforts. These assessments will be designed to ensure that FPD’s recruitment practices are achieving the objective of retaining a diverse workforce of highlyqualified officers. Assessments will include review of application and hiring information;
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analysis of participation in FPD's Academy Assistance programs, particularly among communities of color; and review of the background investigation system, including applications rejected on account of the background investigation. As part of this assessment process, the City and FPD will identify deficiencies and opportunities for improvement; implement appropriate corrective action and improvement measures; and document measures taken.
XVI. PERFORMANCE EVALUATIONS AND PROMOTIONS
291. The City agrees to ensure its policies for performance evaluations and promotions support and recognize officers who police effectively, lawfully, and ethically. The City will revise its policies to achieve such goals. The City further agrees to ensure that poor performance, inappropriate conduct, or conduct that otherwise undermines officer or public safety and community trust is reflected in officer evaluations and promotion decisions.
A. Performance Evaluations
292. Within 240 days, the City will ensure its performance evaluation system is consistent with best practices to recognize and promote the importance of community engagement, problem-solving efforts, and community trust building. The City will revise its relevant policies to achieve this goal. Performance evaluations will identify areas where officers have excelled and areas that require further training and supervision to improve officer performance and place them in a position to advance their careers, public safety, and communitypolice relationships.
293. As part of this revised performance evaluation system, the City will use a formalized system documenting annual performance evaluations of each officer, and quarterly evaluations for probationary employees, by the officer’s direct supervisor. When evaluating officer performance, FPD supervisors shall consider an officer’s demonstrated integrity and ethical decision making; success at implementing community policing and bias-free policing principles; success at implementing de-escalation strategies and tactical retreat, or otherwise safely avoiding using force or using less force than they could have under the law; and additional factors, including:
a. Communication and decision-making skills; b. Civilian commendations and “sustained” and “not sustained” complaints; c. Disciplinary actions;
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d. The quality and accuracy of officer reports, search warrants, and supportive affidavits or declarations; and
e. Creativity and innovation. 294. Performance evaluations will include a written discussion by the supervisor of any areas in which the officer’s performance needs to improve, and areas of particular growth and achievement during the rating period. As part of the annual performance review process, supervisors shall meet with the employee whose performance is being evaluated to discuss the evaluation. 295. FPD will use informal and formal reward systems to recognize and promote constitutional policing and effective community engagement. 296. Supervisors will meet with their subordinates on an ongoing basis to discuss their performance and will document the supervisor’s ongoing efforts and communications regarding officer performance challenges and areas of growth. 297. Performance evaluations for each supervisor (whether first-line or commander) will include assessment of the supervisor’s ability and effectiveness in conducting the supervisory reviews as required by this Agreement, including monitoring, deterring, and addressing misconduct by officers they supervise. Supervisors who fail to adhere to FPD policy regarding supervision of voluntary encounters, stops and detentions, searches, citations, and arrests—or who conduct inconsistent or low-quality review of such police activity—will be subject to discipline, including, but not limited to, demotion. B. Promotions
298. Within 240 days of the Effective Date, the City agrees to ensure its promotional systems comport with best practices and establish clear criteria that prioritize effective, constitutional, and community-oriented policing as factors in promotion.
299. The City agrees to develop a promotional assessment process in which candidates for promotion participate in a series of systematic, job-related, realistic scenarios observed and reviewed by experts, in areas including, but not limited to, community-oriented policing, neighborhood problem solving, crisis management and de-escalation, supervision, and management. Factors to be considered in making promotional decisions will include, but not be limited to:
a. Demonstrated integrity and ethical decision-making;
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b. Demonstrated commitment to community engagement, and effective use of community-policing and neighborhood problem-solving strategies;
c. Demonstrated commitment to bias-free policing; d. Effective use of de-escalation and crisis management techniques; e. Number and circumstances of uses of force, including any found out-of-policy; f. Disciplinary and complaint history; g. Communication and interpersonal skills; h. Education; i. Creative and innovative work; j. Whether the officer has served as a Police Training Officer or in another capacity
as a trainer within FPD; k. The quality and accuracy of officer reports, search warrants, and supportive
affidavits or declarations; and l. Demonstrated recognition that success of officer activity is reflected by crime
prevention and investigation, increased community trust, and public safety. 300. The City agrees to develop and use specific criteria regarding the impact of findings of misconduct on promotional eligibility. Officers with pending investigation(s) or disciplinary action in a matter alleging serious misconduct will be presumptively ineligible for promotion until such investigation(s) and/or action(s) are concluded. 301. Supervisors who conduct high-quality review and supervision will receive preference for assignments and promotion. C. Ongoing Assessment and Improvement
302. Within 180 days of the Effective Date, the City Manager and Chief of Police will develop protocols for at least annually conducting cost-feasible data-driven and qualitative assessments of FPD's promotional and performance evaluation practices. These assessments will be designed to ensure that officers who police effectively, lawfully, and ethically are recognized, and that the performance of officers who engage in conduct that undermines public trust or otherwise perform poorly is accurately reflected in evaluations. Assessments will include reviews of performance guidelines and performance evaluations conducted by supervisors, as well as the collection and assessment of feedback from FPD officers. As part of this assessment process, the City Manager and Chief of Police will identify deficiencies and opportunities for
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improvement; implement appropriate corrective action and improvement measures; and document measures taken.
XVII. SUPPLEMENTAL RECRUIT AND IN-SERVICE TRAINING
303. To ensure that officers have the knowledge and skills to police constitutionally and carry out the requirements of this Agreement, the City agrees to provide and require the training set out below for each of the substantive areas of this Agreement. The training below will be provided in accordance with the requirements set out in Section V above.
304. Unless otherwise noted, the City agrees to provide the training set out below within two years of the Effective Date of this Agreement.
A. Information Regarding this Agreement
305. The City will ensure that, within 60 days of the Effective Date, the requirements of this Agreement are explained to all FPD and Court officers, and officers and employees are provided the opportunity to raise questions or concerns regarding the Agreement and their obligations pursuant to it.
B. Community Policing, Critical Thinking, and Problem-Solving Policing Training
306. The City agrees to provide FPD officers initial and ongoing annual in-service training on community and problem-solving policing, critical thinking, and communication skills, for all current and new FPD sworn employees. This training will include:
a. Methods and strategies to improve public safety and prevent crime through problem-solving techniques;
b. Effective communications skills, including how to recognize and overcome communication obstacles (such training may include Tact, Tactics, and Trust (or “T3” training));
c. Critical thinking, leadership, ethics, social intelligence, and interpersonal skills, such as the “Blue Courage” training;
d. Community engagement techniques, including how to establish formal partnerships and actively engage community organizations and diverse groups within the community to form positive relationships;
e. Policing in accordance with the concepts of procedural justice, fairness, and
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legitimacy; f. How to promote and facilitate use of FPD’s Community Mediation Program; and g. Conflict resolution and verbal de-escalation of conflict. C. Training to Promote Bias-Free Policing
307. The City agrees to provide FPD and court employees initial and ongoing annual in-service training related to bias in policing to provide officers and court employees the knowledge and skills to identify bias and minimize its impact upon law enforcement activities and interactions with members of the public. This training will include:
a. Methods and strategies for more effective policing that rely upon nondiscriminatory factors, including problem-oriented policing strategies;
b. Identification of key decision points where prohibited discrimination can take effect at both the incident and strategic-planning levels, and self-evaluation;
c. Constitutional and other legal requirements related to equal protection and unlawful discrimination, including the requirements of this Agreement;
d. The protection of civil rights as a central part of the police mission and as essential to effective policing;
e. The existence and impact of stereotyping and implicit or subconscious bias on officer decision-making and public interactions; and
f. Cultural competency, cultural awareness, and sensitivity, including the impact of historical trauma on current police-community interactions.
D. Stop, Search, and Arrest Training
308. The City agrees to provide officers with initial and ongoing annual in-service training on voluntary encounters, stops/detentions, searches, citations, and arrests, including the requirements of this Agreement. Where appropriate, training will be taught by a competent legal instructor with significance experience with Fourth Amendment issues, and will:
a. Address Fourth Amendment and related law, FPD policies, and requirements in this Agreement concerning searches and seizures;
b. Address the differences between various police contacts by the scope and level of police intrusion; differences between probable cause, reasonable suspicion, and mere speculation; and truly voluntary and consensual encounters;
c. Provide guidance on the facts and circumstances, in addition to legal and policy
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limitations, that should be considered in initiating, conducting, terminating, and expanding a stop or search; d. Incorporate role playing scenarios and other adult-learning mechanisms to facilitate officer ability to exercise good judgment about whether and how to conduct searches or frisks; e. Provide guidance on stopping and searching people for discretionary and nonviolent offenses, including providing guidance about procedural justice, alternatives to conducting investigatory stops and searches, and the impact on civilians of conducting apparently arbitrary stops and searches; and f. Provide instruction on how to collect the pedestrian and vehicle stop data required by this Agreement. E. First Amendment Training
309. The City agrees to provide to all FPD officers initial and ongoing annual inservice training regarding First Amendment protected activity, appropriate police responses to the exercise of such activity, and common pitfalls and oversteps in responding to such activity. This training will also address policing public demonstrations and crowd control. This training may overlap with training on Stop, Search, and Arrest, and on Use of Force. Officers will also be trained on protocols for obtaining supervisory approval for seizures, searches, citations, and arrests and other significant police actions that result from First Amendment related activity.
F. Use-of-Force Training
310. The City agrees to provide FPD officers initial and ongoing annual in-service useof-force training. This training will include:
a. Fourth Amendment and other relevant law, FPD policy, and the requirements of this Agreement related to force;
b. Use-of-force reporting requirements; c. Proper use-of-force decisionmaking, illustrated through role-playing scenarios
and interactive sessions; d. De-escalation techniques, both verbal and tactical, that empower officers to make
arrests without using force and instruction that disengagement, area containment, surveillance, waiting out a subject, summoning reinforcements, using cover, calling in specialized units, tactical disengagement, or delaying arrest may be the
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appropriate response to a situation, even when the use of force would be legally justified; e. Principles of procedural justice, and avoiding the use of force in response to minor resistance; f. Proper threat assessment, including how implicit racial and gender bias can impact officers’ threat assessments; g. Recognizing failures to comply based on a medical or mental condition, physical or hearing impairment, language barrier, drug interaction, or emotional crisis, and how to respond without force to persons in those situations; h. The duty to safely intervene when another officer is using force that is unnecessary or objectively unreasonable, how to do so safely, and how to prevent or stop a peer’s unreasonable force; i. Firearms training, including: firearm use at night or with reduced light; stress training; the proper techniques for unholstering, displaying, pointing, and aiming a firearm, and for determining when it is appropriate to do so; j. The proper use of ECWs, including:
1. The importance that all officers view and use ECWs as a tool of necessity, not convenience, consistent with best practices and this Agreement;
2. Training on ECW display in combination with verbal commands to avoid force;
3. The risks of prolonged or repeated ECW exposure, including that the application for more than three cycles or 15 seconds (whether due to multiple applications or continuous cycling) may increase the risk of death or serious physical injury;
4. The increased risks that ECWs may present for a subject who is pregnant, elderly, a child, frail, a person of low body mass, or in medical or mental health crisis; and
5. Disadvantages of drive-stun mode, including lack of effectiveness, ease of abuse, and tendency to escalate encounters.
k. Canine handlers will participate in canine and canine handler training every four weeks.
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311. FPD agrees to train dispatchers on force-related topics, including but not limited to the following:
a. Understanding the force review process, to ensure that supervisors are notified of all uses of force;
b. Knowing when to contact emergency medical personnel in use-of-force incidents; and
c. Assisting supervisors to ensure that use-of-force reporting is accurate and complete by providing information about which officers were on the scene, who may have called 911, and other relevant facts.
G. Crisis Intervention Training
312. The City agrees to provide all officers and recruits with initial and ongoing annual in-service on responding to individuals in crisis. The initial and annual training will address the circumstances in which a specialized Crisis Intervention Training (CIT) officer should be dispatched or consulted, and how situations involving individuals in crisis should be addressed if a specialized CIT officer is not immediately available.
313. In addition to providing crisis intervention training to every FPD officer, the City agrees to provide 40 hours of initial specialized CIT training, and eight hours of annual specialized training thereafter, to CIT officers. The training will include how to conduct a field evaluation, suicide intervention, community mental health resources, common mental health diagnoses, the effects of drug and alcohol abuse, perspectives of individuals with mental illness and their family members, the rights of persons with mental illness, civil commitment criteria, crisis de-escalation, and scenario-based exercises. The training will include on-site visitation to mental health and substance abuse facilities and interaction with individuals with mental illness and substance abuse disorders.
314. Within 180 days of the Effective Date, and annually thereafter, all FPD calltakers, dispatchers, and their supervisors will receive crisis intervention telecommunicators training that is adequate to enable them to identify, dispatch, and appropriately respond to calls for service that involve individuals in crisis.
H. School Resource Officer Training
315. The City agrees to provide School Resource Officers with initial and ongoing annual in-service training on: working with youth, including youth-specific de-escalation
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techniques and conflict resolution; child and adolescent brain development; age-appropriate responses to youth conduct; awareness of impact of mental illness and trauma on youth; practices proven to improve school climate; mentoring, counseling, and classroom presentation skills; working with children with disabilities; non-involvement of SROs in school discipline; working collaboratively with school administrators; and the consequences of student involvement in the criminal and juvenile justice systems.
I. Body-Worn and In-Car Camera Training
316. The City agrees to provide initial and ongoing annual in-service training for all FPD sworn employees regarding body-worn and in-car camera equipment. The City agrees to ensure that all FPD members who will be using body-worn and in-car camera equipment or reviewing body-worn and in-car camera recordings will be properly trained within 180 days of the Agreement. Training will be sufficiently adequate in quality, quantity, type, and scope to ensure FPD members properly use and maintain recording equipment and that FPD members ensure proper organization, maintenance, and public access to recordings to the extent allowable under state law and appropriate in light of privacy considerations.
J. Supervisor Training
317. The City agrees to develop and implement a supervisory training course for all new and current supervisors, including commanders. This training will specifically train supervisors to carry out all supervisory duties established in policy and this Agreement, and provide specific instruction, including scenario-based instruction, on methods for ensuring supervisory duties are fulfilled, including:
a. Applicable legal requirements sufficient to properly guide officer conduct; b. How to evaluate and document officer performance; c. How to conduct use-of-force investigations, including instruction in ensuring
appropriate response to use-of-force incidents and instruction in investigative techniques; d. How to conduct misconduct investigations, including specific instruction in investigative techniques; data and case management; the particular challenges of administrative police misconduct investigations, including identifying alleged misconduct that is not clearly stated in the complaint or that becomes apparent during the investigation; and the proper application of the preponderance of the
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evidence standard; e. How to appropriately and meaningfully use, access, review and incorporate into
training body-worn and in-car cameras; f. How to appropriately use the Early Intervention System as a supervisory
management tool. At a minimum, all supervisors, including commanders, will be trained to evaluate and make appropriate comparisons in order to identify any significant individual or group patterns; understand and utilize the range of nonpunitive corrective action they can take to modify officers’ behavior and improve performance; manage risk and liability; promote constitutional policing; and address underlying stressors to promote officer well-being; g. How to identify biased police practices when reviewing investigatory stop, arrest, and use-of-force data; and h. How to evaluate complaints of improper stops, searches, and arrests for potential biased police practices. 318. All supervisory training set forth in policy and this Agreement will be sufficiently adequate in quality, quantity, type, and scope to ensure close and effective supervision. FPD officers will receive supervisory training prior to assuming a supervisory rank. FPD supervisors will receive supervisory in-service training. K. Officer Wellness Training
319. The City agrees to provide initial and ongoing annual in-service training to all FPD officers on identifying and managing mental health stressors related to law enforcement; the connection between officer mental and physical well-being and officer safety, judgment, and performance; the link between mental and physical well-being; and how to access available physical and mental well-being services. The City agrees to involve qualified mental health professionals in developing and providing this training and to provide similar training to officers’ families.
320. The City will support regular workshops for FPD officers on issues including officer safety, mental and physical health and illnesses, physical fitness, and nutrition. The City agrees to reach out to medical and public health partners for existing programs or search local and state health departments’ for available resources and training programs.
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321. The City agrees to provide initial and in-service training for supervisors and officers to assist them in identifying and effectively assisting other officers who are under severe stress or otherwise in need of assistance.
L. Accountability Training
322. The City agrees to provide initial and ongoing annual in-service training to all FPD and court employees on:
a. How to properly handle complaint intake, including how to provide complaint materials and information; the consequences for discouraging misconduct complaints or otherwise failing to properly accept complaints; and strategies for turning the complaint process into a positive police-civilian interaction; and
b. Employees’ specific responsibilities regarding the duty to identify and report misconduct, as well as the duty to fully cooperate with all misconduct investigations.
XVIII. MUNICIPAL COURT REFORM
323. To ensure that the Ferguson Municipal Code is enforced for the purpose of protecting public safety, and to enable the fair and impartial resolution of municipal charges, the City agrees to implement the requirements set forth below.
A. Ensuring that Municipal Code Enforcement is Driven by Public Safety
324. As required by state law, the City agrees to ensure full compliance with the cap placed on revenue from municipal fines and fees codified within Senate Bill 5, as well as all other provisions of that statute. See Senate Bill 5, codified at Mo. Rev. Stat. § 479.350 et.seq. The City agrees to provide DOJ and the Monitor access to all data, information, and analysis used to complete and submit the City’s compliance reports required by that statute. The City further agrees to maintain Municipal Code Ordinance 2014-3565.
325. Within 60 days of the Effective Date, the City will remove the Ferguson Municipal Court from the oversight of the City Finance Director and ensure the Finance Director has no involvement in court operations. Consistent with Missouri law, the Ferguson Municipal Court will report directly to the St. Louis County Circuit Court and Missouri Supreme Court. Where coordination with City officials is required for administrative purposes, members of the Ferguson Municipal Court will report directly to the City Manager.
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B. Comprehensive Amnesty Program
326. The City agrees to implement a comprehensive amnesty program immediately upon entering this Agreement that, at a minimum, incorporates the following measures:
a. Prosecution will be declined in all open cases not yet adjudicated that were initiated prior to January 1, 2014, and all warrants associated with those cases will be eliminated, except where the prosecutor finds good cause to continue prosecution, in which case the City may continue to prosecute the case and maintain the municipal arrest warrant consistent with the terms of this Agreement;
b. To the extent that it has not already done so, the City will eliminate all pending charges, fines, and fees related to Failure to Appear violations (previously imposed pursuant to Ferguson Municipal Code § 13-58) without requiring a defendant to make a bond payment, appear in court, or take any other action;
c. To the extent that it has not already done so, the City will, without requiring a defendant to make a bond payment, appear in court, or take any other action, eliminate all pending fines and fees imposed pursuant to: 1. Ferguson Municipal Code § 13-60 (authorizing fee of up to $75 plus court costs when an individual withdraws a complaint that resulted in a violation being issued); 2. Ferguson Municipal Code § 13-63 (authorizing special deterrent fees as part of parole and probation); 3. Ferguson Municipal Code § 13-70(2) and (3) (authorizing fees for continuing court proceedings, issuing and serving warrants, mileage, and witness fees); 4. Ferguson Municipal Code § 44-50 (authorizing city-imposed towing fees); and
d. In all cases in which a defendant has made total payments that exceed the amount of the initial fines and fees imposed for a municipal ordinance violation, including payments for associated failure to appear violations, the City will recommend that all fines are stayed and the case closed, with no further collections. The City will provide this amnesty without requiring a defendant to make a bond payment, appear in court, or take any other action. In all cases where payments have already been made that do not total or exceed the amount of the original fine,
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including payments for associated failure to appear violations, the City will recommend lowering the fine and fee debts owed to the amount of the initial fines and fees imposed, less any form of payment already made by the defendant. 327. The City agrees to complete implementation of the comprehensive amnesty program within 30 days of the Effective Date, including the elimination of all relevant charges, fines and fees from pending case files as set forth above. The City agrees not to execute any municipal arrest warrant or collect any fines or fees identified above while it is implementing the comprehensive amnesty program. C. Revision of Ferguson Municipal Court Practices
328. Within 90 days of the Effective Date, the City will develop and implement all necessary ordinances and policies to ensure that the practices of the Ferguson Municipal Court are grounded in the fair administration of justice and comport with all constitutional and other legal requirements. Such ordinances and policies will incorporate the requirements set forth below.
1. Increasing Transparency of Court Operations
329. The City agrees to make public through a variety of means—including prominent display on the City website—a clear and accurate description of the municipal court payment process, including information regarding: any pre-established fines and fees; a person’s court obligations once they are charged with a municipal ordinance violation; a person’s rights and responsibilities for challenging a charge; payment and community service options; how to seek an ability-to-pay determination; and the potential consequences for non-payment or missed court dates.
330. The City will develop and implement a plan for a public education campaign aimed at providing members of the broader Ferguson community with accurate and complete information regarding the operations of the Ferguson Municipal Court. The public education campaign will include specific measures to inform the public that appearing in court without being able to pay pending fines or fees will not result in arrest or jail time.
331. The City agrees to make information broadly available, including on the City’s website, regarding cost-free legal assistance that may be available to individuals with pending municipal charges.
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2. Ensuring Adequate Notice
332. The City agrees to provide all individuals charged with a violation of the Ferguson Municipal Code with adequate and reliable information regarding the charges brought against them, the options and requirements for resolving the charges, and the consequences for failing to resolve the charges in a timely matter.
333. The City will ensure that all citations, summonses, arrest notification forms, and other charging documents used by FPD contain (or at a minimum are contemporaneously supplemented with a separate document that contains) clear and detailed information regarding the recipient’s rights and responsibilities. Such information will include:
a. The specific municipal violation charged; b. The recipient’s options for addressing the charge, including whether in-person
appearance is required or if alternative methods, including online payment, are available; c. Information regarding all pending deadlines; d. A clear statement notifying the recipient of the right to challenge the charge in court and instructions regarding how to do so; e. The exact date, time, and location of the court session at which the recipient must or may appear; f. Information regarding how to seek a continuance for a court date; g. The specific fine imposed, if the charged offense has a preset fine; h. A clear statement that the recipient is entitled to have the amount of the imposed fine proportioned to the recipient’s ability to pay; i. The range of possible penalties for failing to meet court requirements; and j. Clear instructions regarding how to acquire information regarding a pending charge, including how to contact a clerk of the Ferguson Municipal Court by phone or in person. 334. Within 60 days of the Effective Date, the City will develop and implement a plan to regularly, and at least on a monthly basis, audit citations, arrest notification forms, and other notices of violations used by officers to ensure that such documents are completed properly and in a manner that provides individuals with thorough and accurate information as required by this
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Agreement. The City will develop this plan in consultation with the Monitor and submit it to DOJ for approval.
335. The City agrees to maintain up-to-date contact information for individuals with cases pending in the Ferguson Municipal Court, including ensuring that court staff request updated address and other contact information each time a defendant appears in court or otherwise communicates with court staff and ensuring that any updated information received is maintained in the defendant’s municipal court file.
3. Online Payment System
336. Within 60 days of the Effective Date, the City will revise its online payment system to allow late payments, payment plan installments, and all other court payments to be made online except where prohibited by law.
337. Within 60 days of the Effective Date, the City agrees to contract with the provider of its current online payment system, or another qualified provider, to establish an online system by which a person charged with a violation can access specific details about a case, including pending charges, court dates, deadlines, owed fines and fees, and payments already made. This system will be developed in consultation with the Monitor and submitted to DOJ for approval.
338. The City agrees to ensure that all online court systems include the privacy protections necessary to protect a defendant’s personal information.
4. Eliminating Unnecessary Barriers to Resolving Cases
339. Within 60 days of the Effective Date, the City will develop and implement a plan to identify and eliminate unnecessary barriers to resolving municipal cases. As part of this plan, the City agrees to:
a. Ensure that nothing in any City ordinance or any other City directive requires that an in-person court appearance be made for any offense beyond those offenses listed in Missouri Supreme Court Rule 37.49 as requiring an in-court appearance;
b. Implement a process for requesting a continuance of a required court appearance, including by phone, fax, or in-person, whether or not represented by counsel. Requests shall be considered in good faith and granted upon a showing of good cause for the continuance;
c. Ensure that the City website provides accurate information regarding the hours
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and location of the Ferguson Municipal Court and Ferguson Municipal Court Clerk’s Office. The City will ensure that the Court and Court Clerk’s office are consistently staffed during posted business hours; d. Accept partial payments pursuant to criteria established by the Municipal Judge and not reject any payment an individual wishes to make against any court fine, fee, or outstanding debt; and e. At a minimum, the court will accept payments for all court-related fines and fees in the form of credit card payments, money orders, and cash.
5. Imposing Fines and Fees, and Conducting Ability-to-Pay Determinations
340. Within 60 days of the Effective Date, the City will ensure that defendants are provided with appropriate ability-to-pay determinations consistent with the following requirements:
a. The Court will affirmatively inquire as to a defendant’s financial capacity prior to initially assessing fines, fees, and costs;
b. Where a showing of indigency is made, the Court will proportion all fines, fees, and costs imposed by the Court to the financial resources of the defendant;
c. Individuals who indicate they cannot afford to pay will not be asked to prove their indigency beyond completion of a standard affidavit under penalty of perjury;
d. Objective and consistent criteria will be established for proportioning fines, fees, and costs to a defendant’s income in cases where a defendant makes a sufficient showing of indigency. These criteria not only will take into account the income of the defendant, but will also consider any documented fines or fees owed to other municipal courts; and
e. The City agrees to ensure that ability-to-pay determinations are conducted prior to the court imposing any initial fine or fee, upon any increase in the fine or related court costs and fees, and upon a defendant’s request for an ability-to-pay determination at any point in a case, including in cases with preset fines.
341. The City agrees to maintain a public list of preset fines (Traffic Violations Bureau or “TVB” fines) for all municipal ordinance violations for which preset fines are allowed under Missouri law. The City further agrees to recommend to the Municipal Judge TVB fine amounts
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that are not overly punitive, that take into account the income of Ferguson residents, and that are under no circumstances greater than regional averages for specific offenses. The TVB fine recommendations will be developed in consultation with the Monitor and subject to approval by DOJ.
342. The City agrees not to impose additional charges, fines, fees, or costs in response to any alleged or found “Failure to Appear” violation, or pursuant to Ferguson Municipal Code §§ 13-60, 13-63, 13-70(2), or 13-70(3).
6. Community Service and Payment Plan Options
343. Within 60 days of the Effective Date, the City will ensure that defendants are provided with appropriate alternative sentence and payment plan options consistent with the following requirements.
344. The City agrees to provide all defendants with the option of performing community service in lieu of paying fines and fees within 120 days of the Effective Date. In advance of that date, the City will work with local and regional community organizations to develop a comprehensive community service program. The community service program will establish reasonable rates at which community service is credited against pending fines and fees, and will establish reasonable time periods for the completion of community service obligations that take into account a defendant’s existing employment and familial obligations. The community service program will be developed in consultation with the Monitor and subject to approval by DOJ.
345. The City agrees to ensure that defendants are provided with options for courtmanaged payment plans with reasonable periodic payments. Such policies will provide:
a. An ability-to-pay determination to assess a periodic payment amount that is reasonable in light of the defendant’s financial resources;
b. Procedures for a person to seek a reduction in the periodic payment amount; c. Procedures allowing individuals, without appearing in court, to seek requests for
extensions of payment obligations, to be granted upon a showing of good cause; and d. Multiple opportunities each month, at varied days and times, for individuals on payment plans to appear before the Municipal Judge to petition the Court for payment plan modifications, extensions, or other relief.
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346. If a person fails to timely fulfill community service obligations or satisfy a court debt within the time allotted by a court payment plan, the City agrees to collect outstanding debts in a manner consistent with the processes set forth in this Agreement.
7. Requirements for Municipal Arrest Warrants 347. The City agrees not to use municipal arrest warrants as a means of collecting civil court debt. 348. Within 60 days of the Effective Date, the City will establish and implement protocols, through policy or ordinance, to ensure that arrest warrants related to municipal code violations will be issued, if at all, only after all other mechanisms available for securing a person’s appearance in court have been exhausted. Such protocols will also ensure that arrest warrants are not being issued in response to a person’s financial inability to pay a fine or fee. Such protocols will require, at a minimum, that:
a. The City provide individuals who have missed a required court appearance or payment with notice of the missed requirement, notice of a new court date or payment deadline, and notice of the potential consequences for failing to satisfy that subsequent requirement;
b. If a defendant fails to satisfy a subsequent required court appearance, the court will conduct a hearing on why a warrant should not issue, including an assessment of ability to pay any pending fine or fee. The court shall not issue a warrant for any individual who appears at the show cause hearing;
c. The City agrees to provide effective notice of any motion for an order to show cause. The City will, at a minimum, provide this notice through first-class mail, and may attempt to contact the person by telephone or text message if such contact information is available; and
d. If the above mechanisms are unsuccessful at securing payment or otherwise resolving the case, the municipal court may, in its discretion, issue an arrest warrant. The City agrees that, upon arresting any person pursuant to an outstanding municipal arrest warrant, such detentions shall comport with the requirements of this Agreement.
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8. Bond
349. The City agrees to ensure that no person is held in custody after arrest because the person cannot afford to post a monetary bond.
350. Within 60 days of the Effective Date, the City will develop and implement a plan to eliminate the use of a fixed monetary bond schedule. This plan will require that all individuals arrested by FPD for an initial violation of law or an outstanding municipal warrant will, except as otherwise provided by state law, receive a court date and be released on their own recognizance as soon as practicable after booking, and in any case within 12 hours of booking, except:
a. In circumstances where an arrestee has a documented history of failing to appear for a required court appearance, the City may require an unsecured bond not to exceed $200 prior to release. In such circumstances, the City will first provide the arrestee with the option of pleading guilty and paying the amount of the fine in full without needing to subsequently appear in court, unless the arrestee is charged with an offense for which an in-person appearance is required by Missouri Supreme Court Rule 37.49. If the person cannot or does not elect to resolve the charge through payment of a fine, the City will: 1. Provide the arrestee with a new court date; 2. Clearly instruct the arrestee that failure to appear as required may result in assessment of the amount of the unsecured bond; 3. Prior to assessment, conduct a show cause hearing as to why the unsecured bond shall not be assessed, with actual notice to the arrestee; and 4. In no case require payment of the bond amount prior to release.
b. Where any person who is arrested for assaultive or threatening conduct (including assault on a law enforcement officer) or who presents a danger to the victim, the public, or any other person, the City may authorize individuals to be held beyond 12 hours. The City agrees that: 1. No person arrested pursuant to a municipal arrest warrant will be held beyond 12 hours; 2. The Chief of Police or his or her designee must authorize all detentions beyond 12 hours; and
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3. Any person held beyond 12 hours must be brought before a court within 24 hours of arrest.
9. License Suspensions and Reinstatements
351. The City agrees to report a defendant’s failure to appear or pay a fine in a case involving a moving traffic violation to the Missouri Department of Revenue only to the extent required by Missouri law.
352. In cases in which a defendant’s driver’s license has been suspended for failing to appear or pay a fine in a case involving a moving traffic violation, the City agrees to provide compliance letters that satisfy the requirements of Missouri Revised Statute § 302.341.1 immediately once a defendant appears in court following the suspension. The City agrees to ensure that compliance letters will not be conditioned upon payment of outstanding fines or fees in full.
10. Trial Procedures
353. Within 180 days of the Effective Date, the City agrees to develop and implement, in consultation with the Monitor and with approval of DOJ, trial procedures and protocols to ensure that all trials within the Ferguson Municipal Court are conducted fairly and impartially, and in compliance with all applicable constitutional and other legal requirements.
11. Court Records
354. The City agrees to ensure that all online court systems enable the collection of aggregated court data consistent with the court data collection and reporting requirements of this Agreement. The City will continue development of an electronic court records management system that is sufficient to reliably ensure that all case information is tracked and accessible to court officials as appropriate. The City agrees to complete development and implementation of the electronic court records management system within 180 days of the Effective Date.
355. The City will ensure that the electronic records management system has appropriate controls to limit user access and ability to alter case records. The records management system will comport with applicable law, including Supreme Court of Missouri Operating Rules 1.10 and 2.
356. The City will provide the Missouri State Courts Administrator (MSCA) with all required and requested information in a timely fashion, and will ensure that such information is
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accurate. Consistent with paragraph 324, the City agrees to make all information provided to the MSCA, as well as other court data collected pursuant to policy or this Agreement, readily accessible on the City and court websites.
12. Ensuring Independence from City Prosecutor
357. Within 60 days of the Effective Date, the City will develop and implement policies to ensure that the Ferguson Municipal Court operates impartially, independently from the City Prosecutor, and in a manner that eliminates existing and potential unlawful conflicts of interest. Consistent with Missouri law, such protocols shall require that the City Prosecutor, not court staff, perform all prosecutorial duties, including: maintaining case files separate and apart from those maintained by the court; reviewing case files and filings; setting fine recommendations; responding to all discovery requests; and prosecuting all charges by information.
13. Ensuring Impartiality of Municipal Judge
358. The City agrees to ensure that the Municipal Judge appointed to serve on the Ferguson Municipal Court is sufficiently independent to avoid impropriety, the appearance of impropriety, and existing or potential conflicts of interest. Consistent with this requirement, the City has prepared revisions to Ferguson Municipal Code § 13-26. The City agrees to enact and maintain this revised ordinance.
14. Ensuring Appropriate Accommodations for Defendants with Mental Illness or Intellectual or Developmental Disabilities
359. The City agrees to implement appropriate mechanisms for providing defendants with mental illness or intellectual or developmental disabilities with information about their available options for diversion from the municipal justice system.
D. Ongoing Assessment and Improvement
360. Within 60 days of the Effective Date, the City will develop protocols for regularly conducting cost-feasible data-driven and qualitative assessments of court practices. These assessments will be designed to ensure that court proceedings are administered fairly and in accordance with policy and federal and state law. Assessments will include analysis of aggregated court data each month, including the number of cases heard, cases resolved, fine amounts imposed and collected, warrants issued, and warrants outstanding; an analysis of fine
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practices; review of information on the frequency and duration of detentions in Ferguson City Jail; and review of license suspension and compliance letter practices, including breakdowns by protected characteristics for all assessments. As part of this internal assessment process, the City will identify deficiencies and opportunities for improvement; implement appropriate corrective action and improvement measures; and document measures taken.
XIX. ACCOUNTABILITY 361. Holding public servants accountable when they violate law or policy is essential to ensuring legitimacy of governance and community confidence. Well functioning accountability systems also promote employee safety and morale. The provisions set out below are designed to ensure that Ferguson’s accountability systems are effective, fair, and transparent. A. Principles of Accountability 362. The City will require that all FPD officers and court employees adhere to the following principles of accountability. Within 120 days of the Effective Date, the City will review applicable policies and personnel regulations to ensure incorporation of the following principles to which employees must adhere. Any violation of the personnel rules and regulations, including of provisions relating to the principles of accountability, shall be subject to appropriate discipline, up to and including termination.
1. Duty to Report Misconduct 363. The City will require that every City employee, including every FPD officer regardless of rank, who observes or becomes aware of any act of misconduct by an employee against a member of the public report the incident to a supervisor for appropriate documentation and investigation. The failure to report an allegation of misconduct, as defined in this agreement, will result in discipline, up to and including termination.
2. Duty of Candor 364. The City will require that every City employee, including every FPD officer regardless of rank, be truthful at all times in spoken, written, or electronic communications, whether under oath or not, in all matters and official investigations relating to the scope of their employment. The penalty for a material breach of this duty of candor by an officer will be termination.
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3. Duty to Facilitate Reporting and Investigation
365. The City will require all FPD officers to wear nameplates or nametags as part of the standard uniform that will allow members of the public to identify officers with whom they interact. FPD supervisors will be required to inspect personnel at roll call prior to shifts to ensure that officers under their command are complying with this requirement. An officer’s repeated failure to wear a nameplate or nametag without justification or a supervisor’s repeated failure to inspect the nameplates or nametags of officers under his or her command will require an investigation and may result in discipline.
366. FPD officers shall provide their names and badge numbers to members of the public upon request. The unjustified failure to provide identifying information to a member of the public will result in discipline.
367. The City will require employees to cooperate with administrative investigations to the fullest extent permitted by law, including appearing for an interview when requested and providing all requested documents and evidence. The unjustified failure to comply will result in discipline, up to and including termination.
4. Duty Not to Retaliate Against Complainants or Otherwise Discourage Complaints
368. The City will expressly prohibit all forms of retaliation, including discouragement, intimidation, coercion, or adverse action, against any person—civilian or employee—who reports misconduct, makes a misconduct complaint, or cooperates with an investigation of misconduct. Officers or other City employees who retaliate against any person who reports or investigates alleged misconduct will be subject to discipline, up to and including termination. Officers or other City employees who discourage the filing of a misconduct complaint, refuse to accept a misconduct complaint, or provide false or misleading information about filing a misconduct complaint will be subject to discipline, up to and including termination.
B. Misconduct Complaint Intake, Investigation and Adjudication
369. Within 180 days of the Effective Date, the City and FPD will develop and implement policies to ensure that all allegations of misconduct are courteously received, centrally documented and tracked, and fully and fairly investigated as required by this
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agreement. Where allegations are sustained, discipline will be imposed fairly and consistently, and officers and complainants will be provided information as appropriate and consistent with this Agreement and applicable law. These policies will include the requirements set out below.
1. Complaint Intake
370. The City agrees to accept misconduct complaints from all parties, including complaints made by a complainant or on the complainant’s behalf, complaints made by a third party, or anonymous complaints. Written complaints from civilians or FPD officers or employees will be accepted by mail, email, online through an easily usable form clearly identified on the City’s website, or by personal delivery to any employee. Verbal complaints will be accepted by phone or in person.
371. The City Attorney will notify FPD’s Chief of Police or the Chief’s designee if the City Attorney or any City prosecutor becomes aware of an allegation of FPD employee conduct made in the Ferguson Municipal Court or any other judicial forum that, if true, would violate the law or FPD policy. Such allegations will be documented, tracked and investigated in the same manner as other misconduct complaints.
372. The City agrees to develop an easily understandable and usable Complaint Form that individuals may choose to use when making a misconduct complaint, although it shall not be required that complainants use this form. The Complaint Form will not contain any language that could reasonably be construed as discouraging the filing of a complaint. The City agrees that it will not support the prosecution of anyone because they have complained about law enforcement misconduct, even if the complaint is unfounded.
373. The fact that a complainant does not speak, read, or write English, or is deaf or hard of hearing, shall not be deemed a reason to not accept or investigate a complaint.
374. The City agrees to make Complaint Forms and other materials outlining the complaint process—including relevant telephone numbers and email addresses to obtain additional information—widely and permanently available, including at City and FPD websites; the lobby of City Hall; all Ferguson schools staffed by FPD employees; FPD headquarters; and the Ferguson Municipal Court. All FPD officers will know how to inform members of the public about how to make a complaint and will carry Complaint Forms in their FPD vehicles. The City agrees to make available a secure complaint drop box at the Police Station and City Hall, which will be regularly checked and accessible only by the Chief of Police or his or her designee.
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375. FPD officers shall immediately notify a supervisor of a complaint received in the field. An FPD supervisor receiving a complaint regarding an incident that just occurred shall accept and immediately begin the investigation of the complaint, unless the supervisor was involved in or directed the conduct complained of, in which case the supervisor shall contact the shift commander, who shall assign another supervisor to immediately begin investigating the complaint.
376. Where the alleged misconduct involves a critical incident, the commanding officer will notify the Chief of Police, who will ensure that the appropriate authorities, including another jurisdiction, are notified to conduct an independent investigation.
2. Complaint Tracking 377. Upon a complaint being received, the Chief or designee shall assign a Complaint Tracking Number. FPD will ensure that the complainant (if known) is contacted and provided with a Complaint Tracking Number within 72 hours of the complaint being received. All complaints will be logged in a centralized electronic tracking system immediately upon being received, and in all cases within 24 hours from when the complaint was received. 378. Within 180 days of the Effective Date, the City will develop and implement an electronic centralized tracking system for all complaints of misconduct. The system will capture accurate and reliable information regarding each complaint, from when the allegation was initially made to final disposition, including a description of the allegation, the final approved disposition, and any discipline imposed. This system will be used to show lengths of time for investigations, notifications made to the complainant, and status of complaints, and to make periodic assessments of compliance with FPD policies and procedures and this Agreement. 379. The City agrees to track, as separate categories of misconduct complaints, allegations related to: violations of the duty of candor; discriminatory policing, including allegations that an officer conducted a stop or arrest based on an individual’s protected characteristics or used a slur based on an individual’s protected characteristics; unlawful stop, search, citation, or arrest practices; allegations of excessive use of force; and allegations of judicial misconduct or misconduct by employees of the Ferguson Municipal Court.
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3. Complaint Investigation
380. The Chief of Police will designate a member of the command staff to coordinate the classification and investigation of misconduct complaints.
381. FPD will develop and implement a policy and protocol for the classification and investigation of misconduct complaints. FPD agrees that this policy and protocol will provide for the assignment of misconduct complaints that involve critical incidents—or other misconduct complaints as the Chief of Police deems appropriate—to an independent, outside entity for investigation.
382. The City will ensure that all misconduct investigators possess excellent investigative skills, a reputation for integrity, and the ability to be fair and objective. A misconduct complaint investigation may not be conducted by any officer involved in the incident in question, including officers who used force during the incident; whose conduct led to the injury of a person; who authorized the conduct that led to the reported incident or complaint; or who witnessed or was involved in the incident leading to the allegation of misconduct.
4. Misconduct Complaint Investigation
383. The City agrees to ensure objective, comprehensive, and timely investigations of all allegations of law enforcement misconduct. Investigators shall be required to consider all relevant evidence, including circumstantial, direct, and physical evidence, as appropriate, and make credibility determinations based upon that evidence. There will be no automatic preference for an officer’s statement over a non-officer’s statement, nor will investigators disregard a witness statement merely because the witness has some connection to the complainant or because of any criminal history. The City agrees that all administrative investigations will be completed within 60 days of the receipt of the complaint, including assignment, investigation, review and final approval of a disposition, unless the Chief of Police extends the investigation. In these cases, the investigator must justify the need to extend and formally request the extension directly to the Chief of Police or his or her designee. In these cases, investigation will be completed within 120 days.
384. Nothing in this Agreement or FPD policy shall hamper an officer’s obligation to provide a public safety statement regarding a work-related incident or activity. The City agrees to make clear in policy and training that all officer statements in incident reports, arrest reports,
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use-of-force reports and similar documents, and statements made in interviews such as those conducted in conjunction with routine use-of-force review and investigation processes, are part of each officer’s routine professional duties, and are not compelled statements under Garrity v. New Jersey, 385 U.S. 493 (1967). FPD policies shall make clear that where an officer believes that providing a verbal or written statement will be self-incriminating, the employee must affirmatively state this in writing at the time the request for the statement is made and before the statement is due, and will not be required to provide a statement unless formally compelled upon approval by the Chief of Police, who will consult with the relevant prosecuting agency as appropriate. FPD policies shall require that in all misconduct investigations, prior to taking a statement from or questioning a subject employee, the employee shall be informed of his or her rights and potential consequences related to providing a voluntary or compelled statement, and shall be required to sign a form indicating that the officer has been advised of these rights and potential consequences and indicating whether the statement is being compelled or provided voluntarily.
385. The City agrees to develop policies for conducting concurrent administrative and criminal investigations of allegations of misconduct. The City agrees to ensure that, if at any time during complaint intake or investigation the investigator determines that there may have been criminal conduct on the part of any officer or employee, the investigator shall ensure that the employee’s constitutional rights are protected. The investigator shall notify the Monitor and DOJ, as well as the Chief of Police who shall ensure that a bifurcated investigation is initiated. FPD will have an independent agency handle the criminal investigation.
386. The City will require that any time an investigator determines that there may have been additional misconduct or violations beyond those initially alleged, the investigator shall take all necessary steps to ensure that such misconduct is fully and fairly documented and investigated.
5. Complaint Adjudication
387. The resolution of any misconduct complaint must be based upon the preponderance of the evidence. A misconduct investigation shall not be closed simply because the complaint is withdrawn unless there is documentation of the circumstances of the complaint being withdrawn, and approval by the Chief. If the complainant is unable or unwilling to provide additional information beyond the initial complaint, the investigation will continue as
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necessary to resolve the original allegation(s) where possible based on the available evidence and investigatory procedures and techniques. In each investigation, the fact that a complainant pled guilty or was found guilty of an offense shall not determine whether an FPD officer committed the alleged misconduct, nor shall it be the sole reason to discontinue the investigation.
388. The investigator shall explicitly identify and recommend one of the following dispositions for each allegation of misconduct in an administrative investigation:
a. “Unfounded,” where the investigation determines, by a preponderance of the evidence, that the alleged misconduct did not occur or did not involve the subject employee;
b. “Sustained,” where the investigation determines, by a preponderance of the evidence, that the alleged misconduct did occur;
c. “Not Sustained,” where the investigation is unable to determine, by a preponderance of the evidence, whether the alleged misconduct occurred; or
d. “Exonerated,” where the investigation determines, by a preponderance of the evidence, that the alleged conduct did occur but did not violate the law or FPD policy.
389. The Chief of Police or the Assistant Chief of Police will approve all investigation dispositions involving FPD officers. The City Manager will approve all investigation dispositions involving members of the Ferguson Municipal Court.
390. In addition to determining a disposition, administrative investigations will assess and document whether: (a) the conduct was in compliance with training and legal standards; (b) the incident indicates a need for additional training, counseling, or other non-disciplinary corrective measures; and (c) the incident suggests that FPD or the City should revise its policies, strategies, tactics or training. This information will be shared with the relevant FPD commander(s), who shall ensure that recommended changes are implemented and documented.
391. Sustained allegations of misconduct will be subject to appropriate nondisciplinary corrective actions, such as additional training, counseling or other action, and shall be subject to discipline as determined appropriate by the Chief of Police in consultation with the Director of Human Resources and the City Manager. Any decision by the Chief of Police to terminate an officer must be approved by the City Manager in accordance with Section 4.4 of the City’s Charter. Discipline will be based on the nature of the allegation and any mitigating or
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aggravating factors and not the identity of the officer or the complainant or the status of either the officer or complainant within the broader community. Where an allegation is sustained, the City will ensure that disciplinary penalties are decided and communicated to the officer in a timely manner.
392. FPD agrees to develop and implement a transparent and consistent schedule of disciplinary penalties that establishes a presumptive range of discipline for each type of rule violation, sets out defined mitigating or aggravating factors justifying departure from the presumptive discipline range, and requires that any departure must be justified in writing.
393. The Chief of Police, in consultation with the Director of Human Resources and the City Manager, will approve all discipline of FPD officers. Any decision by the Chief of Police to terminate an officer must be approved by the City Manager in accordance with Section 4.4 of the City’s Charter. All disciplinary decisions will be documented, maintained in the investigative file and the officer’s personnel file, and reported within the complaint tracking system and EIS systems consistent with FPD policy and best practices.
394. FPD agrees to participate in the National Decertification Index administered by the International Association of Directors of Law Enforcement Standards and Training, and to provide the Index, as well as Missouri POST, with all information regarding sustained misconduct findings, subject to any legal limits on such disclosures.
6. Communication with Subject Employee and Complainant 395. The City agrees to develop and implement policies to ensure that the subject employee receives appropriate notice and information regarding the misconduct investigation and the disciplinary process. The subject employee will be kept informed periodically regarding the status of the investigation and will be notified of the outcome of the investigation in writing upon its completion. Subject employees will be allowed to present mitigating circumstances prior to the imposition of any disciplinary penalty. 396. Each misconduct complainant will be kept informed periodically regarding the status of the investigation. The complainant will be notified of the outcome of the investigation in writing within 21 business days of the completion of the investigation, including regarding whether any disciplinary or non-disciplinary action was taken.
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C. Internally Discovered Violations of Policy that Do Not Involve Members of the Public
397. Within 180 days of the Effective Date, the City agrees to develop and implement policies for ensuring that FPD supervisors can quickly resolve violations of policy that: (a) do not stem from an interaction with a member of the public, and (b) are not reported from outside of FPD. For all such violations, FPD supervisors:
a. Will fully and accurately document the violation and assign the violation a Complaint Tracking Number;
b. Will, where appropriate, recommend a disciplinary penalty for approval by the Chief of Police; and
c. May, in certain limited circumstances, elect to address the violation through nondisciplinary counseling or remedial training, but only where the violation is a first-time offense and the conduct alleged is so minor that it is correctible through these methods. A second or subsequent violation in a six-month period will be ineligible for resolution through non-disciplinary methods.
398. The FPD Chief of Police or his or her designee will review all reports of internally discovered violations of policy that do not stem from an interaction with a member of the public, including the supervisory response, to determine whether additional investigation is required and to approve the recommended discipline or corrective action.
D. Community-Centered Mediation of Misconduct Complaints
399. Within one year of the Effective Date the City agrees to affiliate with the Community Mediation Services of St. Louis to provide a community-centered mediation program to act as an alternative to the misconduct investigation process described above for certain civilian allegations of officer misconduct. The misconduct complaint mediation program will be designed to increase understanding and trust between community members and FPD officers, and to prevent future misconduct and complaints of misconduct. The program will be developed and administered consistent with best practices and will specifically provide that:
a. Misconduct complaints will only be resolved through mediation where both the complainant (or his or her designee) and the subject employee agree to participation in the mediation process;
b. Only certain misconduct complaints will be eligible for mediation, as set out in
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FPD policy; c. Officers who have participated in two or more mediation sessions within the
previous 12-month period will not be eligible to have misconduct complaints made against them resolved through mediation; and d. Where the mediator determines that the officer is not participating in the mediation program in good faith, the mediation shall end and the complaint investigation shall resume. 400. The City will provide appropriate resources to ensure that the misconduct mediation program is effective and operating in a way that is consistent with best practices. The program will be administered by an individual with experience in police mediation or the administration of mediation programs, including the selection and training of mediators. This individual may also be used to develop and administer the community mediation program required in paragraphs 32-34. Mediators conducting misconduct mediations will reflect the diversity of and come from the communities served by the program and will be trained consistently with best practices. E. Ongoing Assessment and Improvement 401. Within one year of the Effective Date, the City will develop protocols for regularly, and at least annually, conducting cost-feasible data-driven and qualitative assessments to measure the effectiveness of FPD’s accountability practices. These assessments will be designed to ensure that members of the community can readily make a complaint alleging police or court misconduct and that such complaints are investigated and adjudicated consistently with FPD Policy. Assessments will include: an analysis of the number of complaints received, the disposition of complaints by complaint type, the timeliness and average length of complaint investigations, and disciplinary actions taken; an analysis of problematic complaint trends; and an analysis of whether there are disparities in disposition decisions or disciplinary penalties. As part of the assessment process, the City and FPD will identify deficiencies and opportunities for improvement, implement appropriate corrective action and improvement measures as the City and FPD deem necessary and feasible, and document any such measures taken.
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XX. CIVILIAN OVERSIGHT
402. To promote transparent and community-centered law enforcement, the City agrees to continue and expand its commitment to establishing meaningful civilian oversight of FPD.
403. In November 2014, the City formed a Civilian Review Board Task Force to engage the community and make recommendations to the City Council for the establishment of a Civilian Review Board. After almost a year of focused community engagement, and, in consultation with the National Association of Civilian Oversight of Law Enforcement (NACOLE), the Task Force submitted its final 33-page report and recommendations on October 6, 2015. The City will continue to work with the Task Force, as necessary, until the Ferguson Civilian Review Board (CRB) is established by ordinance, which will be subject to review by DOJ. DOJ has deferred to the Task Force’s determinations regarding the most appropriate form of civilian oversight for Ferguson, subject to the assessment of the Monitor, set out in paragraph 410, below.
404. In establishing the CRB, the City, in consultation with the Task Force, will ensure that the ordinance sets forth protocols for selecting CRB members who are representative of all areas and groups within the City. Consistent with the Task Force’s recommendation, the following persons are not eligible to serve on the CRB: (a) current or past employees of FPD; (b) current City employees; (c) any person convicted of a felony in this state or any other state; and (d) the spouse of those ineligible persons listed above. The members of the CRB shall appoint one of their members to serve as Chairperson.
405. The City, in consultation with the Task Force, will ensure that the CRB is established and operational within 270 days of the Effective Date. The CRB will:
a. Receive and review, make findings, and recommend disciplinary action for (a) all Force Review Board investigations involving a complaint of misconduct and a sampling of other Force Review Board investigations as determined appropriate by the CRB, and (b) all investigations of complaints by members of the public against members of the police department that allege misconduct involving excessive use of force, abuse of authority, discourtesy, or use of offensive language, including, but not limited to, slurs relating to race, ethnicity, religion, gender, sexual orientation and disability, pursuant to Mo. Rev. Stat. § 590.653 and
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policies consistent with Mo. Rev. Stat. § 590.653 developed by the City and subject to approval by DOJ; b. The CRB shall be notified when any FPD investigation of misconduct is preliminarily completed, and shall be provided with the opportunity to review, comment, and make recommendations to the Chief of Police prior to the Chief’s approval of the FPD investigation. The CRB’s review of investigations may include a review of all evidence relevant to the underlying misconduct complaint; c. All findings and recommendations of the CRB, and the basis therefore, shall be submitted to the Chief of Police for appropriate action consistent with FPD policy and this Agreement. In accordance with Mo. Rev. Stat. § 590.653, no finding or recommendation shall be based solely upon an unsworn complaint or statement, nor shall prior unsubstantiated, unfounded or withdrawn complaints be the basis for any such findings or recommendations. Disciplinary recommendations shall be consistent with the disciplinary matrix approved by DOJ (see Section XIX); d. Within 180 days of the establishment of the CRB and appointment of its members, the CRB will develop and recommend a program to promote awareness throughout the broader Ferguson community about the options available for filing misconduct complaints, and about the misconduct complaint process. Within 90 days of the finalization of the CRB’s program, the City will implement the program to the extent feasible and appropriate; e. Review and assess FPD policies and procedures, as well as training plans and curricula, and make recommendations for modifications to policies, procedures, and training; f. Serve on officer hiring and promotion panels, except that members of the CRB serving on hiring and promotion panels shall not participate in the review of complaints or complaint investigations; g. Develop and implement ways to educate the public on policing and to assist in enhancing FPD’s relationship with the Ferguson community; and h. Review crime data, racial profiling data, and complaint statistics to identify patterns and trends.
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406. The City agrees to ensure that the CRB has the resources, training, and capacity to fulfill each of these responsibilities, as set forth below.
407. The City agrees to enact appropriate City ordinances and take any additional measures necessary to ensure that the CRB effectively performs each of its assigned civilian oversight functions. These measures include: authorizing the CRB to have timely access to appropriate video, reports, and records related to the complaint being investigated in accordance with applicable law; providing appropriate meeting space; ensuring the CRB’s independence from FPD and the City; and other measures necessary to enable the CRB to effectively fulfill its mandate. The City will designate a current employee to perform certain administrative functions of the CRB such as coordinating and posting notice of meetings, uploading information to the City’s website, and similar functions.
408. The City agrees to work with appropriate organizations in the field of civilian oversight, such as NACOLE and civilian oversight bodies in other jurisdictions, to develop and implement a plan for training all CRB members in civilian oversight. The CRB training plan will be developed in consultation with the Monitor, consistent with best practices, and subject to DOJ approval. The City will specifically provide training regarding: relevant constitutional and state law; FPD policies and procedures; implicit bias; proper investigation techniques, including gathering and objectively analyzing evidence, as well as resolving inconsistent statements; and proper application of the preponderance of the evidence standard.
409. Within 12-18 months of the CRB’s creation, the Task Force will conduct a comprehensive assessment of the CRB’s operations to ensure that it is providing effective civilian oversight. If the Task Force determines that the CRB is not effectively fulfilling its mandate, the City will work with the Task Force to ensure that the policies, procedures, and composition of the CRB are modified as necessary to ensure effective oversight.
410. The Monitor will develop protocols to assess (a) whether the CRB is representative of the broader Ferguson community by reflecting the racial, ethnic, geographic, and housing diversity within the region, considering the applicants willing to serve on the CRB, and (b) whether the CRB is effectively serving the civilian oversight functions described in Mo. Rev. Stat. § 590.653 and this Agreement.
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XXI. DATA COLLECTION, REPORTING, AND TRANSPARENCY
A. Data Collection
411. The City and FPD agree to ensure the collection and tracking of all FPD and municipal court data that is: (a) necessary to enable the City’s ongoing assessment and improvement of its law enforcement practices, as discussed throughout this Agreement; (b) necessary to enable the Monitor to conduct the outcome assessments set out in Section XXII; and (c) otherwise required by this Agreement, FPD policy, and state and federal law.
412. To ensure that collected data is complete, accurate, and reliable, the City agrees to work with the Monitor to develop and implement a cost-feasible data collection plan and related protocols, to be approved by the Monitor and DOJ.
B. Public Availability of Policies and Reports
413. The City agrees to make publicly available on request and on the City’s website all FPD and municipal court policies and protocols, as well as all public reports described in this Agreement. Any exceptions will be limited to information that must remain confidential to protect public safety and approved by DOJ and the Monitor.
414. On at least an annual basis, the City will make data collected pursuant to paragraph 411 publicly available on the City website in summary form, unless prohibited by law.
C. Annual Report
415. Within 60 days following the expiration of each year of the term of this Agreement, the City agrees to produce an annual report describing FPD and Ferguson Municipal Court activity. The purpose of the annual report will be to inform the public of the City’s law enforcement achievements and challenges, as well as new programs and steps taken to address challenges and build on successes. The annual report will further provide information regarding the City’s implementation and status of this Agreement. The annual report shall not include any specific information or data that may not be disclosed pursuant to applicable law. Subject to applicable law, the annual report will address:
a. Community engagement and problem-solving policing efforts, identifying successes, obstacles, and recommendations for future improvement;
b. Disparate impact of any police or court program or activity and measures taken to eliminate unnecessary disparate impacts;
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c. Voluntary contact, stop, search, and arrest data and any analysis of that data that was undertaken;
d. First Amendment protected activity data and associated analyses; e. Use-of-force data and associated analyses; f. Crisis Intervention Team specialized members, training, and activities; g. SRO program successes and challenges; h. Initiatives that the City has implemented for officer assistance and support; i. Recruitment efforts, challenges, and successes; j. In-service and supplemental recruit training; k. Misconduct complaint data, including but not limited to the number of
misconduct complaints made and investigated; the outcome of investigations; and the mode of resolution (e.g. full investigation, mediation, etc.), as well as analysis of that data to identify trends; l. Activities and achievements of the Civilian Review Board, Neighborhood Policing Steering Committee, Ferguson Youth Advisory Board, Apartment Neighborhood Association, and any other board or commission that has been active or accomplished achievements during the year; m. Court operation data and related trends and analyses; and n. Additional topics as deemed appropriate by the City in its discretion to promote transparency and identify the accomplishments, actions, and continuing needs of the City.
XXII. MONITORING, COMPLIANCE ASSESSMENT, AND ENFORCEMENT
A. Independent Monitor
416. The Parties will jointly select an Independent Monitor (“Monitor”), which will be a team of individuals highly qualified in policing, civil rights, monitoring, and related areas, to assess and report on whether the requirements of this Agreement have been implemented, and whether this implementation is resulting in constitutional and otherwise lawful policing and administration of justice, and increased community trust between the public and the Ferguson Police Department and Court. The Monitor will work with the Parties to identify and address any barriers to compliance.
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417. The Monitor will have only those duties, responsibilities, and authority conferred by this Agreement. The Monitor is not intended to replace or assume the role or duties of the Chief of Police or any other City official. Nothing in this Agreement alters the authority of the City Manager or the fact that the Chief of Police retains authority over FPD, including the authority to oversee its operations. The Monitor will be subject to the supervision and orders of the Court, consistent with this Agreement and applicable law.
418. In order to assess, assist, and report on FPD’s implementation of this Agreement and whether the goals of this Agreement are being achieved, the Monitor will conduct the activities specified in this Agreement, including assisting FPD in its development of the policies, procedures, practices, training curricula, systems and programs required by this Agreement.
B. Selection and Compensation of the Monitor
419. Within 90 days of the Effective Date, or additional time if agreed to by the Parties, the City and DOJ together will select a Monitor acceptable to both Parties, to assess and report on FPD’s implementation of this Agreement. The selection of the Monitor shall be pursuant to a process jointly established by the City and DOJ, and shall not be subject to any formal procurement requirements. The Parties’ Monitor selection will be subject to the approval of the Court with jurisdiction over this Agreement.
420. If the Parties are unable to agree on a Monitor within the timeframe agreed to by the Parties, each Party will submit the names of three monitoring teams, along with the teams’ monitoring proposals (including cost proposals), to the Court, and the Court will select a Monitor from among the candidates submitted.
421. The Monitor will be appointed for a period of five years beginning on the Effective Date and will have its appointment extended automatically should the City not demonstrate full and effective compliance at the end of this five-year period. The extension of the Monitor beyond seven years will be allowed only if the Court determines that such extension would facilitate full and effective compliance with this Agreement. The Monitor’s appointment will terminate prior to five years if the City has achieved the necessary full and effective compliance for a period of two consecutive years.
422. The City will bear all reasonable fees and costs of the Monitor. DOJ and the City recognize the importance of ensuring that the fees and costs borne by the City are reasonable, and accordingly fees and costs will be an important factor to be considered in selecting the
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Monitor. In the event that any dispute arises regarding the reasonableness or payment of the Monitor’s fees and costs, the City, DOJ, and the Monitor will attempt to resolve such dispute cooperatively prior to seeking the assistance of the Court. The City will provide the Monitor with office space and reasonable office support such as office furniture, telephones, Internet access, secure document storage, and photocopying.
423. The Monitor, at any time after its initial selection, may request to be allowed to hire, employ, or contract with such additional persons or entities as are reasonably necessary to perform the tasks assigned to the Monitor by this Agreement. Any person or entity hired or otherwise retained by the Monitor to assist in furthering any provision of this Agreement will be subject to the provisions of this Agreement. The Monitor will notify the City and DOJ in writing if the Monitor wishes to select such additional persons or entities. The notice will identify and describe the qualifications of the person or entity to be hired or employed and the monitoring task to be performed. If the City and DOJ agree to the Monitor’s proposal, the Monitor will be authorized to hire or employ such additional persons or entities. The City and DOJ have ten business days to disagree with any such proposal. If the City and DOJ are unable to reach agreement within ten business days of receiving notice of the disagreement, they will seek the Court’s assistance in resolving the dispute. Should the City or DOJ determine that the Monitor’s individual members, agents, employees, or independent contractors have exceeded their authority, or failed to satisfactorily perform the duties required by this Agreement, the City or DOJ may petition the Court for such relief as the Court deems appropriate, including replacement of the Monitor, and/or any individual members, agents, employees, or independent contractors.
C. Duties of the Monitor
1. Develop Monitoring Plan and Review Methodology
424. Within 90 days of assuming the duties of Monitor, the Monitor will develop a plan for conducting: (a) reviews of policies, training curricula, and other written materials requiring Monitor review or approval; (b) evaluations and audits of whether the material requirements of this Agreement have been implemented; and (c) outcome assessments, including the community surveys required by this Agreement. The Monitor will submit this plan to the Parties for review and approval. This plan will:
a. Clearly delineate the requirements of this Agreement to be assessed, indicating
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which requirements will be assessed together; b. Set out a schedule for conducting a review or audit of each requirement of this
Agreement within the first two years of this Agreement, and a review or audit of each requirement at least annually thereafter; and c. Set out a schedule for conducting outcome measure assessments for each outcome measure at least annually, except where otherwise noted in this Agreement, with the first assessment occurring within 18 months of the Effective Date. 425. Where the Monitor recommends and the Parties agree, the Monitor may refrain from conducting a compliance review of a requirement previously found to be in compliance by the Monitor pursuant to audit or review, or where outcome assessments indicate that the outcome intended by the requirement has been achieved. 426. At least 30 days prior to the initiation of any assessment, review, or audit of the requirements or outcome measures of this Agreement, the Monitor will submit a proposed methodology for the assessment, review, or audit to the Parties. The Parties will submit any comments or concerns regarding the proposed methodology to the Monitor no later than 15 days prior to the proposed date of the assessment, review, or audit. The Monitor will modify the methodology as necessary to address any concerns or will inform the Parties in writing of the reasons it is not modifying its proposed methodology. Any unresolved disputes involving the Monitor’s methodology may be submitted to the Court for resolution.
2. Evaluate and Audit Implementation of the Agreement 427. The Monitor will conduct reviews or audits as necessary to determine whether the City and FPD have implemented and continue to comply with the requirements of this Agreement. Compliance requires that the City and FPD: (a) have incorporated the requirement into policy; (b) have trained all relevant personnel as necessary to fulfill their responsibilities pursuant to the requirement; and (c) are carrying out the requirement in actual practice. Compliance reviews and audits will contain the elements necessary for reliability and comprehensiveness. Compliance reviews and audits may be conducted using sampling and compilation data where appropriate.
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3. Recommend and Provide Technical Assistance
428. The Monitor may make recommendations to the Parties regarding measures necessary to ensure timely, full, and effective implementation of this Agreement and its underlying objectives. Such recommendations may include a recommendation to change, modify, or amend a provision of this Agreement, a recommendation for additional training in any area related to this Agreement, or a recommendation to seek technical assistance. In addition to such recommendations, the Monitor may also, at the request of DOJ or the City and based on the Monitor’s reviews, provide technical assistance consistent with the Monitor’s responsibilities under this Agreement. The Monitor does not have the authority to modify the requirements of this Agreement through these recommendations or otherwise.
4. Conduct Community Surveys
429. Within one year of the Effective Date, and every year thereafter, the Monitor will conduct a reliable, comprehensive, and representative survey of members of the Ferguson community, including police officers, regarding their experiences with and perceptions of FPD, public safety, and the municipal court. Analysis of the results of this survey may be used to demonstrate sustained continuing improvement with this Agreement.
430. To conduct the annual community surveys, the Monitor will: a. Develop a baseline of measures on public satisfaction with policing, attitudes among police personnel, and the quality of police-citizen encounters; b. Develop a baseline of measures on public satisfaction with the municipal court, attitudes among court personnel, and the quality of individuals’ encounters with court personnel; c. Design, conduct, and analyze baseline and subsequent annual surveys of a representative sample of Ferguson residents, law enforcement personnel, and detained arrestees; d. Review and consider prior law enforcement and court surveys in Ferguson as well as current or recent concerns, in designing the survey; e. Engage in informal conversation with Ferguson residents, FPD officers, court staff, and DOJ representatives, and observe community meetings; f. Ensure that the resident and arrestee surveys are designed to capture a
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representative sample of individuals of all relevant protected characteristics served by FPD and the municipal court; g. Conduct the survey in English and non-English languages as necessary to allow for representation of the entire Ferguson community; and h. Formally discuss the survey methodology with FPD supervisors and DOJ, and consider these opinions in development of the baseline survey and improvements to subsequent surveys. 431. FPD and the City agree to cooperate with the design and execution of the surveys. 432. The report of the baseline survey and subsequent annual surveys will be posted on the City’s website and publicly distributed. 433. The City and FPD will analyze the results of the survey and will use this analysis to modify and improve FPD policies, training, and practices as needed.
5. Conduct Outcome Assessments
434. In addition to compliance reviews and audits, the Monitor will conduct qualitative and quantitative assessments to measure whether implementing this Agreement is resulting in constitutional and otherwise lawful law enforcement. Within 120 days of assuming the duties of Monitor, the Monitor will review and recommend any changes to the outcome measures detailed below that the Monitor deems useful in assessing whether implementation of this Agreement is resulting in constitutional and otherwise lawful law enforcement. The Parties will adopt any recommendations upon which they agree. If the Parties disagree on whether to adopt a particular outcome measure recommended by the Monitor, the Party seeking adoption may seek Court resolution.
435. These outcome assessments will include analyzing, at least annually, the following:
a. The results of the community surveys set out above; b. Community engagement measurements, including:
1. FPD officers’ (including supervisors and commanders) participation in community meetings and events, development/continuation of partnerships between FPD and community members, and engagement in positive interactions with community members that did not previously have strong relationships with the police department; 108

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2. Development and maintenance of long-term programs to promote and foster positive police-youth interactions (such as Police Athletic/Activities League and Explorer Program);
3. Responses to calls for service in different areas of, and housing types within, Ferguson;
4. Relationship with the Neighborhood Policing Steering Committee, Civilian Review Board, Youth Advisory Board, Apartment Neighborhood Association, and any other civilian engagement and oversight groups;
5. Level of participation in and effectiveness of Community Mediation Program; and
6. Level and effectiveness of police-community problem-solving partnerships. c. Bias-free policing measurements, including regression analyses sufficient in type
and scope to determine whether any police or court program, initiative, activity, or service has a disparate impact on the basis of protected characteristics. Such analyses will control for factors other than protected characteristics, including but not limited to crime rates, income level, and ability to pay. Examples of the regression analyses that will be conducted are analyses of whether: 1. FPD officers are more likely to stop; cite; search, including searches based on
probation and parole conditions; seize contraband; or arrest, including on municipal warrant arrests, persons with a protected characteristic; 2. FPD officers are more likely to stop, cite, search, or arrest persons with a protected characteristic for discretionary and non-violent offenses, including Manner of Walking, High Grass and Weeds, Barking Dog, Trash Service, and Housing/Zoning code offenses; 3. FPD officers are more likely to use force, including all types of force identified in the use-of-force outcome measurements below, based on protected characteristics; 4. FPD officers are more likely to deploy canines, based on protected characteristics, and related disparate impact of canine bites; 5. FPD officers are more likely to impound vehicles based on the protected characteristics of the vehicle owner or occupant;
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6. The Ferguson Municipal Court is more likely to issue or recall municipal arrest warrants based on protected characteristics;
7. The Ferguson Municipal Court is more likely to dismiss charges or modify charges, including reducing charges to lesser charges, based on protected characteristics;
8. The Ferguson Municipal Court is more likely to impose fines or bond requirements, or higher fine or bond requirements, based on protected characteristics; and
9. The Ferguson Municipal Court is more likely to reduce fines based on a protected characteristic.
d. Voluntary contact, stop, search, citation, and arrest measurements, including: 1. Total number of stops, searches, citations, and arrests—overall and broken down by geographic area, arrest charge, protected characteristics of subject (if any), and the rate at which the encounters resulted in a summons or arrest; 2. Number and rate of stops and searches for which there is sufficient documented reasonable suspicion—overall and broken down by geographic area, arrest charge, and protected characteristics of subject (if any); 3. Number and rate of increase or decrease of instances in which supervisory approval was necessary for the issuance of citations; 4. Number of citations or other forms of charges issued per stop, broken down by geographic area, arrest charge, and protected characteristic; 5. Number and rate of increase or decrease of arrests for offenses requiring supervisory approval before transport and arrests not permitted absent continuing unlawful conduct or inability to identify subject; 6. Number of correctable violations issued, broken down by offense, and ratio of correctable violations to citations for each eligible offense; 7. Data related to the documented reasonable suspicion to stop and probable cause to search or arrest, broken down by the actual or perceived protected characteristics of the person(s) stopped/arrested;
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8. Number of civilian complaints regarding stops, searches, seizures, and arrests, overall and by disposition, geographic area, type of stop or seizure, and protected characteristics;
9. The state prosecutor’s acceptance and refusal rates for prosecution from arrests made by FPD and reasons for refusals, when made available by the prosecutor, and any factors and information provided indicating that a failure to prosecute was due to the quality of the case or concerns regarding officer conduct, overall and broken down by zone, arrest charge, and protected characteristics of the subject; and
10. Number of searches that resulted in a finding of contraband, overall and broken down by geolocation, arrest charge, and protected characteristics of the subject.
e. First Amendment measurements, including: 1. Number of citations and arrests requiring supervisor approval under the First Amendment section of this Agreement, broken down by geolocation, arrest charges, and protected characteristics of the subject; 2. Number of incidents in which the officer’s reported rationale for the police action indicates that the action taken was related to (i) an individual recording or observing officer activity, (ii) public protest activity, (iii) media coverage of events, or (iv) an individual’s expression of criticism of law enforcement; 3. Number of complaints in which a person claims he or she was not permitted to observe, record, criticize, or protest police activity, or was retaliated against for such conduct; 4. Number of members of the press arrested or otherwise interfered with; and 5. Number of incidents in which a recording device or recording was seized, searched, or destroyed, and the reason for these actions.
f. Use-of-force measurements, including: 1. Number of use-of-force incidents (including force used in the FPD jail) as compared to number of arrests, with use-of-force incidents broken down by force type, geographic area, and type of related arrest (if any);
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2. Number of injuries to officers and members of the public, and the rate at which officer and subject injuries decrease or increase—overall and broken down by severity of injury;
3. Number of force complaints, broken down by disposition of complaints, source of complaint (internal or external), force type, and geographic area;
4. Rate at which ECW and canine deployment and apprehension decreases or increases compared to the use of force overall and by weapon;
5. Number of force incidents associated with obstruction arrests and similar violations;
6. Number of uses of force (including force used in the FPD jail) found to violate policy, broken down by force type, geographic area, and arrest charge;
7. Number of officers found to have used force in violation of policy or law more than one time;
8. Force reviews or investigations indicating a policy, training, equipment, or tactical deficiency;
9. Quality of use-of-force investigations and reviews, and number and rate of use-of-force administrative investigations that are returned for further investigation or lack of completeness; and
10. Number of use-of-force incidents recorded through the use of body-worn and/or in-vehicle cameras compared to the number of use-of-force incidents not recorded.
g. Response to individuals in crisis measurements, including: 1. Number of calls for service involving persons in crisis, broken down by whether CIT officers responded to the calls; 2. The rate of individuals diverted from the criminal justice system to the health care system; and 3. Number of police interactions where force was used on persons in crisis, including the type of force used; the reason for the interaction (e.g., suspected criminal conduct, wellness check); the threat to public safety, including whether the person was armed and if so, with what; the type of resistance
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offered, if any; attempts at strategic disengagement; and injuries to officers, persons in crisis, or third parties. h. Policing in schools measurements, including: 1. Number of calls for service and other reports of crime occurring on school grounds during school hours or school-sanctioned events; 2. Number of citations, arrests, and uses of force and restraints on school grounds during school hours or school-sanctioned events, broken down by school, charges, and protected characteristics of the subject; 3. Number of cases diverted toward conflict resolution, school discipline process, alternatives, and diversion programs, broken down by school, arrest charges, and protected characteristics of the subject; 4. Number and type of complaints about officer conduct on school grounds during school hours or school-sanctioned events; 5. Student and staff perceptions of school safety and officer fairness, and SRO views of the program, based on surveys and other tools to be developed by the City and FPD; and 6. Disparities in officer uses of force, arrests, or charges brought on school grounds, by the protected characteristic of the subject student. i. Court practices measurements—which, unless otherwise indicated, will include breakdowns by offense, whether the defendant was represented by an attorney, and the protected characteristics of the defendant—including: 1. Number of cases pending before the Ferguson Municipal Court; 2. Number of cases heard by the Court each month, including a breakdown of the race of the defendant, and a breakdown of how cases were resolved; 3. Number of missed court appearances; 4. Number of continuance requests granted and denied; 5. Number of warrants issued, and total warrants pending, each month; 6. Amount of initial fines imposed and collected, separate from any additional charges imposed during a case; 7. Number of ability-to-pay determinations conducted;
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8. Number of cases designated for resolution through community service each month;
9. Number of cases assigned and cleared from payment plans each month; 10. Number of unsecured bonds assessed, and dollar amount of unsecured bonds
assessed and collected, each month; 11. Number of Missouri Department of Revenue license suspensions initiated by
the Court, and the number of compliance letters enabling license reinstatement issued by the Court; and 12. Number and nature of complaints regarding court services, broken down by protected characteristics of the defendant. 436. In conducting these outcome assessments, the Monitor may use any relevant data collected and maintained by FPD (e.g., crime trend pattern analysis), provided that the Monitor has determined, and the Parties agree, that this data is reasonably reliable and complete.
6. Conduct Comprehensive Assessment 437. Three years after the Effective Date, the Monitor will conduct a comprehensive assessment to determine whether and to what extent the outcomes intended by this Agreement are being achieved, and whether any modifications to this Agreement may be appropriate in light of changed circumstances, unanticipated impact (or lack of impact) of the requirement, or the feasibility compared with need for the requirement. Where the Parties agree with the Monitor’s recommendations, the Parties will modify this Agreement accordingly. This provision in no way diminishes the Parties’ ability to stipulate to modifications to this Agreement as set out below. Nothing in this assessment will enable the Monitor to unilaterally modify the terms of this Agreement.
7. Publicly Report Assessment and Status of Agreement Implementation 438. The Monitor will file with the Court, every six months, written, public reports that include the following:
a. A description of the work conducted by the Monitor during the reporting period; b. A list of each Agreement requirement, indicating which requirements have been:
1. Incorporated into implemented policy;
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2. The subject of sufficient training for all relevant FPD officers and employees; and
3. Found by the Monitor to have been fully implemented in practice. c. The methodology and specific findings for each review and audit conducted,
where appropriate, redacted as necessary for privacy concerns. An unredacted version will be filed under seal with the Court and provided to the Parties. The underlying data for each review will not be publicly available but will be retained by the Monitor and provided to either or both Parties upon request; d. For any requirements that were reviewed or audited and found not to have been fully implemented in practice, the Monitor’s recommendations regarding necessary steps to achieve compliance; e. The methodology and specific findings for each outcome assessment conducted; and f. A projection of the work to be completed during the upcoming reporting period and any anticipated challenges or concerns related to implementation of this Agreement. 439. The Monitor will provide a copy of the six-month reports to the Parties in draft form within 15 calendar days after the end of each reporting period. The Parties will have 15 calendar days upon receipt of the report to informally comment on the draft report. The Monitor will consider the Parties’ responses and make appropriate changes, if any, before issuing the report.
8. Regularly Communicate with the Court, Parties, and Public
440. The Monitor will maintain regular contact with the Parties in order to ensure effective and timely communication regarding the status of FPD’s implementation of and compliance with this Agreement. To facilitate this communication, the Monitor will conduct monthly meetings, which will include participation by, at a minimum, the Chief of Police, counsel for the City, FPD’s Compliance Coordinator (described below), and representatives of DOJ.
441. The Monitor will meet with community stakeholders, including the CRB, NPSC and the Ferguson City Council, to explain the Monitor’s reports and inform the public about this
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Agreement’s implementation process, as well as to hear community perspectives on police interactions.
D. Monitor and DOJ Access and Confidentiality
442. To facilitate its work, the Monitor may conduct on-site visits and assessments without prior notice to the City or FPD. The Monitor will have access to all necessary individuals, facilities, and documents, which will include access to Agreement-related trainings, meetings, and reviews such as critical incident reviews and disciplinary hearings. FPD will notify the Monitor as soon as practicable, and in any case within 12 hours, of any critical firearms discharge, in-custody death, arrest of any officer, or any high-profile event expected to garner media attention.
443. The City and FPD agree to ensure that the Monitor will have timely, full, and direct access to all City and FPD staff, employees, critical incident scenes, and facilities that the Monitor reasonably deems necessary to carry out the duties assigned to the Monitor by this Agreement. The Monitor will cooperate with the City and FPD to access people and facilities in a reasonable manner that, consistent with the Monitor’s responsibilities, minimizes interference with daily operations.
444. The City and FPD will ensure that the Monitor will have full and direct access to all City and FPD documents and data that the Monitor reasonably deems necessary to carry out the duties assigned to the Monitor by this Agreement, except any documents or data protected by the attorney-client privilege or that constitute attorney work product. The attorney-client privilege may not be used to prevent the Monitor from observing reviews, trainings, or disciplinary hearings. Should the City and FPD decline to provide the Monitor with access to documents or data based on privilege, the City and FPD will inform the Monitor and DOJ that it is withholding documents or data on this basis, and will provide the Monitor and DOJ with a log describing the documents or data and the basis of the privilege for withholding. If DOJ objects to the City’s classification, it may seek resolution of the propriety of the assertion of the attorney-client privilege from the Court.
445. For the purpose of implementing this Agreement, DOJ and its consultants and agents will have full and direct access to all City and FPD staff, employees, facilities, documents, and data related to the Agreement, except any documents or data protected by the attorney-client privilege or that constitute attorney work product. DOJ and its consultants and
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agents will cooperate with the City and FPD to access involved personnel, facilities, and documents in a reasonable manner that, consistent with DOJ’s responsibilities to enforce this Agreement, minimizes interference with daily operations. Should the City or FPD decline to provide DOJ with access to documents or data based on attorney-client privilege, the City and FPD will inform DOJ that it is withholding documents or data on this basis, and will provide DOJ with a log describing the documents or data and the basis of the privilege for withholding. If DOJ objects to the City’s classification, it may seek resolution of the propriety of the assertion of the attorney-client privilege from the Court.
446. The Monitor and DOJ will provide the City and FPD with reasonable notice of a request for copies of documents. Upon such request, working with the Monitor and DOJ to determine a cost-effective and timely manner of production, the City and FPD will provide copies of the requested documents in a timely manner (electronic, where readily available).
447. The Monitor will have access to all records and information relating to criminal investigations of FPD officers as permitted by law. The Monitor will have access to all documents in criminal investigation files that have been closed by FPD after the Effective Date. The Monitor will also have reasonable access to all arrest reports, warrants, and warrant applications initiated after the Effective Date, whether or not contained in open criminal investigation files. Where practicable, arrest reports, warrants, and warrant applications initiated after the Effective Date will be obtained from sources other than open criminal investigation files.
448. The Monitor and DOJ will maintain all non-public information provided by the City and FPD in a confidential manner. Other than as expressly provided in this Agreement, this Agreement will not be deemed a waiver of any privilege or right the City and FPD may assert, including those recognized at common law or created by statute, rule, or regulation, against any other person or entity with respect to the disclosure of any document.
449. Except as required or authorized by the terms of this Agreement or with the Parties acting together: the Monitor, including any agent, employee, or independent contractor thereof, will not make any public statements or issue findings with regard to any act or omission of the City or FPD, or their agents, representatives, or employees; or disclose non-public information provided to the Monitor pursuant to this Agreement. Any press statement made by
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the Monitor regarding its employment or monitoring activities under this Agreement first will be approved by DOJ and the City.
450. Members of the Monitoring Team may testify as to their observations, findings, and recommendations before the Court with jurisdiction over this matter, but no member of the Monitoring Team will testify in any other litigation or investigative or pre-litigation proceeding with regard to any act or omission of the City, FPD, or any of their agents, representatives, or employees related to this Agreement or regarding any matter or subject of which the Monitor may have received knowledge as a result of his or her performance under this Agreement. This paragraph does not apply to any proceeding before a court related to performance of contracts or subcontracts for monitoring this Agreement.
451. Unless such conflict is waived by the Parties, the Monitor will not accept employment or provide consulting services that would present a conflict of interest with the Monitor’s responsibilities under this Agreement, including being retained (on a paid or unpaid basis) by any current or future litigant or claimant, or such litigant’s or claimant’s attorney, in connection with a claim or suit against the City or its departments, officers, agents or employees.
452. The Monitor is not a state or local agency, or an agent thereof, and accordingly, the records maintained by the Monitor will not be designated as public records subject to public inspection.
453. The Monitor will not be liable for any claim, lawsuit, or demand arising out of the Monitor’s performance pursuant to this Agreement brought by non-parties to this Agreement.
E. City of Ferguson Consent Decree Coordinator
454. The Parties agree that the City will reassign a current City employee for the duration of the Agreement, to serve as the Consent Decree Coordinator. The Consent Decree Coordinator will serve as a liaison between the City, FPD, the Monitor, and DOJ, and will assist with the City and FPD’s implementation of this Agreement. At a minimum, the Consent Decree Coordinator will:
a. Assist the Monitor in coordinating review, audit, and implementation activities; b. Facilitate the provision of data, documents, other material, and access to FPD
employees to the Monitor and DOJ, as needed; c. Ensure that all documents and records are maintained as provided in the
Agreement; and
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d. Assist in assigning Consent Decree related tasks to FPD personnel, as directed by the City Manager, the Chief of Police, or their designees, and in tracking the handling of those tasks.
F. City of Ferguson Data Collection, Self-Assessment, and Report
455. The City and FPD agree to collect and maintain all data and records: necessary to: (a) document implementation of and compliance with this Agreement, including data and records necessary for the Monitor to conduct reliable outcome assessments, reviews, and audits; and (b) allow FPD or other City entities to perform ongoing quality assurance in each of the areas addressed by this Agreement.
456. Within 180 days of the Effective Date, FPD will file with the Court, with a copy to the Monitor and DOJ, a status report. This report will delineate the steps taken by FPD during the reporting period to implement this Agreement; FPD’s assessment of the status of its progress; plans to correct any problems; and responses to any concerns raised in the Monitor’s previous semi-annual report. Following this initial status report, FPD will file a status report every six months thereafter while this Agreement is in effect.
G. Court Jurisdiction, Modification of this Agreement, and Enforcement
457. This Agreement will become effective upon entry by the Court. 458. To ensure that the requirements of this Agreement are properly and timely implemented, the Court will retain jurisdiction of this action for all purposes until such time as the City and FPD have achieved full and effective compliance with this Agreement and maintained such compliance for no less than two consecutive years. At all times, the City and FPD will bear the burden of demonstrating by a preponderance of the evidence full and effective compliance with this Agreement. DOJ reserves its right to seek enforcement of the provisions of this Agreement, and to seek additional enforcement and implementation mechanisms, if it determines that the City and FPD have failed to fully comply with any provision of this Agreement. DOJ will consult with officials from the City before instituting enforcement proceedings and will make a good-faith attempt to resolve any disputes before seeking intervention from the Court. 459. The City and DOJ may jointly agree to make changes, modifications, and amendments to this Agreement. Such changes, modifications, and amendments to this Agreement will be encouraged when the Parties agree, or where the Monitor’s reviews,
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assessments, and/or audits demonstrate, that an Agreement requirement as drafted is not furthering the purpose of this Agreement or that there is a preferable alternative that will achieve the same purpose. Where the Parties or the Monitor are uncertain whether a change to this Agreement is advisable, the Parties may agree to suspend the current Agreement requirement for a time period agreed upon at the outset of the suspension. During this suspension, the Parties may agree to temporarily implement an alternative requirement. The Monitor will assess whether the suspension of the requirement, and the implementation of any alternative provision, is as or more effective at achieving the purpose as was the original/current Agreement requirement, and the Parties will consider this assessment in determining whether to jointly stipulate to make the suggested change, modification, or amendment.
460. The Parties agree to defend the provisions of this Agreement. The Parties will notify each other of any court or administrative challenge to this Agreement. In the event any provision of this Agreement is challenged in any city or state court, removal to a federal court will be sought by the Parties.
461. The City and FPD agree to require compliance with this Agreement by their respective officers, employees, agencies, assigns, or successors.
H. Termination of this Agreement
462. This Agreement will terminate when the City has been in full and effective compliance for two consecutive years. “Full and effective compliance” means achieving both sustained compliance with all material requirements of this Agreement, and sustained and continuing improvement in constitutional policing and public trust, as demonstrated pursuant to this Agreement’s outcome measures.
463. If the Parties disagree whether the City has been in full and effective compliance for two years, either Party may seek to terminate this Agreement. In the case of termination sought by the City, prior to filing a motion to terminate, the City agrees to notify DOJ in writing when the City has decided that it is in full and effective compliance with this Agreement and that such compliance has been maintained for no less than two consecutive years. Thereafter, the Parties will promptly confer as to the status of compliance. If, after a reasonable period of consultation and the completion of any audit or evaluation that DOJ and/or the Monitor may wish to undertake, including on-site observations, document review, or interviews with City and FPD personnel, the Parties cannot resolve any compliance issues, the City may file a motion to
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terminate this Agreement. After the receipt of the City’s motion, DOJ will have the right to file a
written response. The parties agree to jointly seek a hearing on the motion, and the burden will
be on the City to demonstrate by a preponderance of the evidence that it is in full and effective compliance with this Agreement and have maintained such compliance for at least two years.
464. This Agreement is enforceable only by the Parties. No person or entity is intended to be a third-party beneficiary of the provisions of this Agreement for purposes of any
civil, criminal, or administrative action. Accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement.
XXIII. DEFINITIONS
465. The following terms and definitions will apply to this Agreement: 1. “Active resistance” means a person’s physical actions are intended to prevent an officer
from placing the subject in custody and taking control, but are not intended to harm the officer. Examples include breaking the officer’s grip and hiding to avoid detection. Verbal statements, bracing, pulling away, or tensing alone do not constitute active resistance.
2. “Aggravated aggressive resistance” means a person’s actions create an objectively reasonable perception on the part of the officer that the officer or another person is subject to imminent death or serious physical injury as a result of the attack or attempted attack. Aggravated aggressive resistance represents the least encountered but most serious threat to the safety of an officer or another person.
3. “Aggressive resistance” means a person attempts to attack or does attack an officer. Lunging toward the officer and striking the officer with hands, fists, kicks, or any weapon are examples of aggressive resistance. Neither passive nor active resistance constitute aggressive resistance.
4. “Apprehension” means the arrest, capture, or taking into custody of a person.
5. “Arrest” means the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the person arresting him. An arrest is a restraint of greater scope or duration than an investigatory stop or detention. An arrest is lawful when supported by probable cause.
6. “Bite” means any physical contact between a canine’s teeth and a person or animal. This physical contact need not result in broken or punctured skin to be a bite.
7. “Bite ratio” means the number of canine apprehensions that result in a bite, divided by the number of canine apprehensions. Accidental and unintentional bites shall be included in the numerator.
8. “Best practices” means guidelines or standards that represent the most efficient and current means for achieving constitutional and effective policing accepted by nationally recognized
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police professionals or organizations in the relevant subject area, as determined by the Parties.
9. “Canine apprehension” means any time a canine is deployed and plays a clear role in the capture of a person. The mere presence of a canine at the scene of an arrest shall not count as a canine apprehension.
10. “Canine handler” means a sworn member of FPD who has been certified by a canine trainer used by FPD as meeting all requirements of FPD’s certification program.
11. “Canine deployment” means any situation, except one involving an on-leash article search only, in which a canine is brought to the scene and used in an attempt to locate or apprehend a suspect, whether or not a suspect actually is located or apprehended. This includes all situations in which a canine is removed from a vehicle for this purpose and all instances in which a subject surrenders after an announcement is made warning that the canine will be released if the subject does not surrender.
12. “Chief” or “Chief of Police” means the Chief of Police of the Ferguson Police Department or a properly designated Acting or Interim Chief.
13. “City” refers to the City of Ferguson, Missouri, including its agents, officers, and employees.
14. “Complainant” means any person, including an FPD officer or employee, who makes a complaint against FPD or an FPD officer or employee.
15. “Complaint” means any allegation of misconduct regarding FPD services, policy, or procedure; any claim for damages; or any criminal matter that alleges possible misconduct by an FPD officer or employee.
16. “Compliance” means that the City and FPD: (a) have incorporated the requirement into policy; (b) have trained all relevant personnel as necessary to fulfill their responsibilities pursuant to the requirement; and (c) are carrying out the requirement in actual practice.
17. “Consent search” means a search conducted based on the consent or permission of the individual whose person or property is searched.
18. “Court” refers to the United States District Judge for the Eastern District of Missouri presiding over this case.
19. “Critical firearm discharge” means a discharge of a firearm by an FPD officer, including accidental discharges and discharges where no person is struck. Range and training firings, destruction of animals, and off-duty hunting discharges where no person is struck are not critical firearms discharges.
20. “Crisis Intervention Team” is a first responder model of police-based crisis intervention that involves a dynamic collaboration of community, health care, and advocacy partnerships committed to improving the way law enforcement and the community respond to individuals in crisis.
21. “Critical incident” means any officer-involved shooting, death in police custody, or death as a result of being in police custody.
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22. “Department of Justice” or “DOJ” refers to the United States Department of Justice’s Civil Rights Division.
23. “Discipline” or “disciplinary action” means a personnel action for violation of an established law, regulation, rule, administrative rule, or FPD policy, including, but not limited to, a verbal reprimand, written reprimand, suspension, or dismissal.
24. “Discriminatory policing” means selective enforcement or non-enforcement of the law, including the selecting or rejecting of particular policing tactics or strategies based on protected characteristics. Discriminatory policing does not include using race, ethnicity, or any other protected characteristics in any reliable and current suspect-specific description.
25. “ECW” or “Electronic Control Weapon,” means a weapon, including those manufactured by TASER International, designed primarily to discharge electrical charges into a subject that will cause involuntary muscle contractions and override the subject’s voluntary motor responses.
26. “ECW application” means the contact and delivery of an electrical impulse to a subject with an Electronic Control Weapon.
27. “Effective Date” means the day this Agreement is entered by the Court.
28. “Exigent circumstances” means emergencies in which a reasonable person would believe that imminent bodily harm to a person or persons or the destruction of evidence is likely.
29. “Firearm” means a handgun, shotgun, or any other weapon designed to expel a projectile by the action of an explosive.
30. “FPD” or “the Department” refers to the Ferguson Police Department and its agents, officers, supervisors, and employees (both sworn and unsworn).
31. “Force” means any physical effort used to control or restrain another, or to overcome the resistance of another.
32. “Frisk” or “pat down” means an officer passing his or her hands over a person in a search for weapons or contraband.
33. “Full and effective compliance” means achieving both sustained compliance with all material requirements of this Agreement and sustained and continuing improvement in constitutional policing and public trust, as demonstrated pursuant to the Agreement’s outcome measures.
34. “Imminent threat” means an immediately impending danger.
35. “Impact weapon” means any authorized intermediate weapon or object used to strike a subject and inflict pain or injury through blunt force.
36. “Implement” or “implementation” means the development or putting into place of a policy, plan, or program, including the appropriate training of all relevant personnel, and the consistent and verified performance of the policy, plan, or program in actual practice.
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37. “Improvised weapon” means any object, other than those objects approved and authorized by the Department, used to apply force, and any Department-approved weapon used by an officer who has not received required training or certification to use the weapon.
38. “Incidental” means occurring merely by chance or without intention or calculation.
39. “Include(s)” and “including” mean “including, but not limited to.”
40. “Interview” means questioning for the purpose of eliciting facts or information.
41. “Investigatory stop” or “investigatory detention” means a “Terry” stop, i.e., a temporary restraint for investigatory purposes where the subject of the stop or detention would reasonably believe that she or he is not free to leave. A juvenile’s age is a consideration in determining whether the juvenile would not feel free to leave. An investigatory stop or detention may be a pedestrian, vehicle, or bicycle stop.
42. “LEP” means Limited English Proficient, and refers to a person who does not speak English as his/her primary language and has a limited ability to read, write, speak, or understand English. LEP individuals may be competent in certain types of communication (e.g., speaking or understanding), but still be LEP for other purposes (e.g., reading or writing).
43. “Less-lethal force” means force neither intended nor likely to cause death or serious physical injury, but that can cause death or serious physical injury. Less-lethal force includes, but is not limited to, the use of an ECW, an impact weapon such as an asp or baton, and OC spray.
44. “Lethal force” means any use of force likely to cause death or serious physical injury, including the use of a firearm; neck hold; or strike to the head, neck, or throat with a hard object.
45. “Low-level force” means force lesser than lethal and less-lethal force. Low-level force includes but is not limited to takedowns; physical striking to parts of the body other than the head, neck, or throat; hand controls; pressure point techniques; and physical escort techniques.
46. “Mental health condition” or “mental illness” means a medical condition that disrupts an individual’s thinking, perception, mood, or ability to relate to others such that daily functioning and coping with the ordinary demands of life are diminished. This includes, but is not limited to, serious mental illnesses such as major depression, schizophrenia, bipolar disorder, obsessive compulsive disorder, panic disorder, posttraumatic stress disorder, and borderline personality disorder. This also includes dual diagnosis of mental illness and another condition, such as drug and/or alcohol addiction.
47. “Mental health crisis” means an incident in which someone with an actual or perceived mental illness or developmental disability is experiencing intense feelings of personal distress (e.g., anxiety, depression, anger, fear, panic, hopelessness), obvious changes in functioning (e.g., neglect of personal hygiene, unusual behavior), or catastrophic life events (e.g., disruptions in personal relationships, support systems, or living arrangements; loss of autonomy or parental rights; victimization; natural disasters), which may, but do not
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necessarily, result in an upward trajectory of intensity culminating in thoughts or acts that are dangerous to him- or herself and/or others.
48. “Misconduct” means a violation of departmental policies or procedures; a violation of federal, state, or local criminal laws; a constitutional violation, whether criminal or civil; a violation of personnel rules; or a violation of administrative rules or regulations.
49. “Non-custodial interview” means an encounter during which an officer asks questions of a subject the officer seeks to investigate for a possible offense, and during which the subject is free to leave and/or decline any of the officer’s requests at any point.
50. “Non-disciplinary corrective action” refers to action other than discipline taken to enable or encourage an officer to improve his or her performance.
51. “Necessary force” means the minimum amount of force required, because no reasonably effective alternative appears to exist, to effect a legitimate public safety objective. Legitimate public safety objectives include protecting any person from injury, effecting a lawful detention or arrest, and conducting a lawful search.
52. “Neck hold” means any of the following types of holds: (a) arm-bar control hold, which inhibits breathing by compression of the airway in the neck; (b) carotid restraint hold, which inhibits blood flow by compression of the blood vessels in the neck; (c) lateral vascular neck constraint; (d) a hold with a knee or object to the back of a prone subject’s neck. A neck hold is considered lethal force.
53. “Open Enrollment Recruit” means a person admitted to the St. Louis County and Municipal Police Academy through the Open Enrollment Recruit Program.
54. “Passive resistance” means a person is not compliant with officer commands but is taking only minimal physical action to prevent being taken into custody and control and does not pose an immediate threat to the officer or the public. Bracing, tensing, linking arms, or verbally signaling an intention to avoid or prevent being taken into custody constitute passive resistance.
55. “Personnel” means all FPD employees.
56. “Police officer” or “officer” means any law enforcement agent employed by or volunteering for FPD, including corrections officers, supervisors, and reserve officers.
57. “Policies” or “policies and procedures” means written regulations or directives, regardless of the name of the regulation or directive, describing the duties, functions, and obligations of FPD personnel, and providing specific direction on how to fulfill those duties, functions, or obligations. These include general orders, special orders, policies, procedures, and standard operating procedures.
58. “POST” means the Missouri Peace Officer Standards and Training Program.
59. “Preponderance of the evidence” means that a given fact or outcome is more likely than not to be true.
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60. “Pretextual stop” means a lawful police stop or detention initiated for the purpose of investigating potential criminal activity for which the officer has neither reasonable suspicion nor probable cause.
61. “Probable cause” means that the facts and circumstances known to the officer at the time would justify a prudent person in believing the suspect committed or was committing an offense.
62. “Procedural justice” refers to a concept involving four central principles designed to build public confidence in the police: 1) treating people with dignity and respect; 2) giving individuals a chance to be heard during encounters; 3) making decisions fairly and transparently, based on facts; and 4) conveying goodwill and trustworthiness.
63. “Proportional force” means force that reflects the totality of the circumstances surrounding the situation, including the presence or absence of imminent danger to officers or others. Proportional force does not require officers to use the same type or amount of force that the subject uses. The more immediate the threat and the more likely that threat will result in death or serious physical injury, the greater the level of force that may be objectively reasonable and necessary to counter it.
64. “Protected Characteristics” include race, color, ethnicity, national origin, gender, gender identity, sexual orientation, age, immigrant status, disability, and limited English proficiency.
65. “Qualified mental health professional” means an individual with a minimum of masterslevel education and training in psychiatry, psychology, counseling, social work, or psychiatric nursing, who is currently licensed in the State of Missouri to deliver the mental health services he or she has undertaken to provide.
66. “Reasonable force” means that force which is objectively reasonable under the circumstances and the minimum amount of force necessary to effect an arrest or protect the officer or other person.
67. “Reasonable suspicion” means articulable facts that, within the totality of the circumstances, lead an officer to reasonably believe that the suspect has committed, is committing, or is about to commit a crime.
68. “Reportable use of force” means any use of force that is greater than that required for unresisted searching or handcuffing. Additionally, unholstering or pointing a firearm, and any use of force which results in injury or a complaint of pain are reportable uses of force for the purposes of this Agreement.
69. “Seizure” occurs when an officer’s words or actions convey to a reasonable person that he or she is not free to leave.
70. “Serious physical injury” means physical injury that creates a substantial risk of death, causes death or serious and protracted disfigurement, or causes impairment of the function of any bodily organ or limb.
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1-26-16 71. “Social contact” means a voluntary, consensual encounter between the police and a subject with the intent of engaging in casual and/or non-investigative conversation. The subject is free to leave and/or decline any of the officer’s requests at any point. 72. “Specialized CIT Officer” means an officer who has received specialized, comprehensive training on how to respond to persons in mental health crisis, including persons under the influence of drugs or alcohol. 73. “Supervisor” means sworn FPD personnel at the rank of sergeant or above, or anyone acting in those capacities, and non-sworn FPD personnel with oversight responsibility for other personnel. 74. “Unit” means any designated organization of officers within FPD, including area and specialized units. 75. “Vehicle stop” means any instance where an FPD officer directs a civilian operating a motor vehicle of any type to stop and the driver is detained for any length of time. 76. “Will” or “shall” or “agrees to” means that the provision imposes a mandatory duty.
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 For more information, contact: Jeff Small 314.801.8540

MEDIA ADVISORY

FERGUSON CITY COUNCIL MEMBERS VOTE TO CONDITIONALLY APPROVE AN AGREEMENT WITH THE DEPARTMENT OF JUSTICE

FERGUSON, Mo - In a 6-0 vote, Ferguson City Council members voted in favor of a Bill that authorized an agreement, subject to certain conditions, between the City and the Department of Justice. Upon its passage, the Bill becomes an Ordinance and City officials are authorized to execute an amended settlement agreement with the Department of Justice.
Those seven conditions on acceptance are that (i) the agreement contain no mandate for the payment of additional salary to police department or other city employees; (ii) the agreement contain no mandate for staffing in the Ferguson Jail; (iii) deadlines set forth in the agreement are extended; and (iv) the terms of the agreement shall not apply to other governmental entities or agencies who, in the future, take over services or operations currently being provided by the City of Ferguson; (v) a provision for local preference in contracting with consultants, contractors and third parties providing services under the agreement shall be included; (vi) project goals for minority and women participation in consulting, oversight and third party services shall be included; and (vii) the monitoring fee caps in the Side Agreement are changed to $1 million over the first five years with no more than $250,000 in any single year.
The Department of Justice must accept the seven amendments in order for the settlement agreement to be valid. If the Department of Justice accepts the seven amendments, it is expected that the amended settlement agreement will be filed with the federal court in St. Louis for approval by the Federal Judge.
Following months of negotiation with representatives of the Department of Justice, the City of Ferguson received the proposed agreement from the Department on January 26. The City held three community meetings on Feb. 2, 6, and 9, seeking public input from the citizens of Ferguson concerning the agreement.
During the time period for public review and comment, concerns about cost and the comprehensive and far-reaching scale of the agreement were voiced. The conditions of approval address those concerns to some extent.
The historic vote avoids the time and cost of litigation and allows the City to continue its focus to ensure constitutional policing and court practices, and provides these benefits to the citizens of Ferguson.
The agreement is outlined in twenty initiatives and states that the provisions of this agreement are meant to ensure protection of the constitutional and other legal rights of all members of the community, improve Ferguson’s ability to effectively prevent crime, enhance both officer and public safety, and increase public confidence in the Ferguson Police Department (FPD).

City of Ferguson – add one

-more-

“During the past seven-months, we have worked very hard to ensure that our negotiations were feasible and realistic for the citizens of Ferguson,” said Ferguson Mayor James Knowles III. “Although we did not get everything we wanted in the agreement, we certainly made sure that what was agreed upon, can be implemented in a timely and sufficient manner.”
A negotiating team including City Council members Wesley Bell, Mark Byrne and Mayor James Knowles III, negotiated with the Department of Justice on behalf of the City.
Both the Department of Justice and Ferguson officials agree to implement the following initiatives within time frames set forth in the agreement.
The terms and conditions include the following:
COMMUNITY ENGAGEMENT: The City will begin to host and participate in a series of small-group structured dialogues, arranged and led by a qualified neutral facilitator, between police officers and community members and groups, with an emphasis on community members and groups who previously have not had strong or positive relationships with FPD or the City.
REFORM OF THE FERGUSON MUNICIPAL CODE: To ensure constitutional enforcement of the Ferguson Municipal Code (“Code”) and further promote community-oriented policing, the City agrees to revise the Code and ensure that it comports with the United States Constitution and other laws; establishes clearly defined municipal offenses and appropriate penalties for violations; and adequately protects the public health, safety, and welfare.
POLICIES AND TRAINING: To ensure that officers have the knowledge, skills, and direction necessary to police constitutionally, effectively, and in a manner that promotes both officer and public safety, the City agrees to continue to enhance its policies and increase the quality and scope of training provided to FPD officers and other FPD employees.
BIAS-FREE POLICE AND COURT PRACTICES: This Agreement, in its entirety, will be implemented in a manner that ensures equal protection of the law for all individuals, regardless of race, color, ethnicity, national origin, religion, gender, sexual orientation, disability, or other protected characteristics.
VOLUNTARY CONTACTS, STOPS, SEARCHES, CITATIONS, AND ARRESTS: The City agrees to ensure that all FPD voluntary encounters, investigatory stops and detentions, searches, citations, and arrests are conducted in accordance with the rights, privileges, and immunities secured or protected by the Constitution and the laws of the United States.
FIRST AMENDMENT PROTECTED ACTIVITY: The parties acknowledge that First Amendment protected activities serve important societal functions, including promoting transparency in government affairs, ensuring accountability of public officials, and
-more-
City of Ferguson – add two

encouraging community feedback—whether critical or laudatory—that ultimately reduce tension and foster a sense of openness and trust between law enforcement and the public.
FORCE: The agreement outlines several procedures that dictate when force may be used and for required reporting, oversight and investigation.
CRISIS INTERVENTION: The Police Department will implement a Crisis Intervention Team (CIT) first-responder model of policebased crisis intervention with community, health care, and advocacy partnerships to: (a) assist individuals who are in mental health crisis or who are in crisis related to the influence of alcohol or drugs (“individuals in crisis”); (b) reduce the need to use significant force against individuals in crisis and improve the safety of patrol officers, individuals in crisis and their families, and others within the community; (c) provide the foundation necessary to promote community solutions to assist individuals with mental illness; and (d) reduce the need for individuals with mental illness to have further involvement with the criminal justice system.
SCHOOL RESOURCE OFFICER PROGRAM: Additional policies and procedures are incorporated into the Department’s School Resource Officer Program.
BODY-WORN AND IN-CAR CAMERAS: In an effort to bring continued transparency regarding police activities; improve the effectiveness and reliability of use-of-force and misconduct investigations; enhance supervision of FPD stops, searches, and arrests; and provide material for officer training, the City will equip FPD officers with body-worn and in-car cameras, and will ensure that such devices are used consistent with law and policy.
SUPERVISION: Additional requirements apply to supervisors within the police department to ensure that the terms of the agreement are carried out.
OFFICER ASSISTANCE AND SUPPORT: The City will provide certain services and assistance to police officers to ensure the officers’ physical and mental well-being.
RECRUITMENT: The City will conduct a broader outreach in attempts to recruit a highly-qualified diverse workforce and will offer one scholarship per year for a candidate to attend the St. Louis County Police Academy.
PERFORMANCE EVALUATIONS AND PROMOTIONS: The City agrees to ensure its policies for performance evaluations and promotions support and recognize officers who police effectively, lawfully, and ethically.
SUPPLEMENTAL RECRUIT AND IN-SERVICE TRAINING: To ensure that officers have the knowledge and skills to police constitutionally and carry out the requirements of this Agreement, the City agrees to provide and require training which
-more-
City of Ferguson – add three

far exceeds the State’s training requirements. MUNICIPAL COURT REFORM: The City will adopt, as part of its Municipal Code, procedures applicable to the jail and the Municipal Court and will make certain recommendations to the Municipal Judge.
ACCOUNTABILITY: The City agrees to certain principles of accountability and agrees to a more-detailed complaint process.
CIVILIAN OVERSIGHT: To promote transparent and community-centered law enforcement, the City agrees to continue and expand its commitment to establishing meaningful civilian oversight of the police department, primarily through a Civilian Review Board.
DATA COLLECTION, REPORTING, AND TRANSPARENCY: The City agrees to ensure the collection and tracking of all police and municipal court data that is: (a) necessary to enable the City’s ongoing assessment and improvement of its law enforcement practices, as discussed throughout the Agreement; (b) necessary to enable the Monitor to conduct the outcome assessments; and (c) otherwise required by the Agreement, policy, and applicable law.
MONITORING, COMPLIANCE ASSESSMENT, AND ENFORCEMENT: The Parties will jointly select an Independent Monitor (“Monitor”), which will be a team of individuals highly qualified in policing, civil rights, monitoring, and related areas, to assess and report on whether the requirements of the Agreement have been implemented, and whether this implementation is resulting in constitutional and otherwise lawful policing and administration of justice, and increased community trust between the public and the Ferguson Police Department and Court. The Monitor will work with the Parties to identify and address any barriers to compliance.
The projected cost of the consent decree is outlined in the table shown below. To view the entire consent decree, log on to the city of Ferguson’s website at www.fergusoncity.com.
•
###

 
 U.S. Department of Justice Civil Rights Division

Office of the Assistant Allorney General

Washington, D.C. 20530
March 4, 2016

Mayor James W. Knowles Ill Ferguson City Councilmembers 11 0 Church Street Ferguson, MO 63135

DanK. Webb Winston & Strawn LLP 35 W. Wacker Drive Chicago, IL 60601

Re: United States v. City ofFerguson (4:16-cv-00180)

Dear Ferguson City Council and Counsel:
We write in response to your recent communications, in which questions continue to be raised regarding the potential costs of implementing the proposed agreement initially negotiated in this case. That agreement was the product of several months of negotiations, during which the cost concerns expressed by your team were taken seriously, fully considered, and negotiated. The resulting agreement sets forth a framework for effectively and efficiently protecting the fundamental rights of all Ferguson residents and promoting public safety. The United States will not accept the modifications that the City of Ferguson ("the City") unilaterally made to the agreement on February 9, 2016, or any re-opening of the long process of negotiation that led to the agreement. We are fully prepared to litigate this matter. Should the City wish to avoid the litigation process, we submit that the alternative is to sign the agreement as negotiated between the parties in good faith - an agreement that provides the framework for the reforms necessary in Ferguson.
You will recall that our negotiations were extensive and considered cost concerns throughout the process. As we do in every case, we committed during our negotiations to cooperatively address concerns about costs or other challenges that may arise during the implementation process, and our commitment to that cooperation has not changed.
First, as with all of our police reform settlement agreements and as we made clear during our negotiations, the precise contours of implementation of the agreement would be developed over time in close coordination and consultation with City officials, the Department of Justice, the independent monitor, and the court. The Department has a strong interest in ensuring the sustainability of the reforms in our consent decrees and we understand that sustainability often, as a practical matter, requires attention to the fmancial condition of the local jurisdiction during the implementation stage. It is not uncommon for financial or staffing challenges to arise in the course of implementation of our consent decrees. Provided those challenges are genuine, approached in good faith, and not pretexts for non-compliance, we are committed to working
1

with jurisdictions to overcome these challenges. The Department has a demonstrated record of working cooperatively with jurisdictions to ensure that implementation ofconsent decree provisions remedies constitutional deficiencies while supporting and enhancing the capacity of law enforcement officials to carry out their mission of protecting public safety.
Second, as you know from our negotiations, the provisions of the agreement requiring the City to develop a recruitment plan, including a plan to "offer salaries that will place FPD among the most competitive of similarly sized agencies in St. Louis County," were specifically negotiated with the City to address concerns about low officer retention rates and the need to attract and retain a highly qualified workforce following the City's investment in training its officers. We have always been clear that the salary provision neither requires any specific salary increase nor prohibits increases from being implemented over a reasonable time period. Nor is the recruitment plan required to address salary increases for any City employees outside FPD. As with many other aspects ofthe agreement, the recruitment plan provisions set requirements that the City must implement over time.
Third, as we do in many jurisdictions as part of our efforts to advance and support constitutional policing, the Department of Justice has provided significant technical assistance and other grant support to the City, with this support increasing after August 2014. As we discussed during our negotiations, should the City commit to the successful implementation of the agreement, we would expect this technical assistance and other support to continue until such implementation is complete, and would continue to work with the City to identify additional opportunities for federal support.
We continue to believe that the City of Ferguson can expeditiously bring about constitutional policing and municipal court practices through implementation ofthe negotiated agreement. Should that commitment be made, we would remain committed - as expressed throughout our negotiations - to working with the City towards the reforms that would inure to the benefit of all ofthe citizens of Ferguson.
Vanita Gupta Principal Deputy Assistant Attorney General
cc: Kevin M. O'Keefe Curtis, Heinz, Garrett & O'Keefe P.C. 130 Bemiston Ave., Suite 200 St. Louis, MO 63105
Stephanie E. Karr Ferguson City Attorney Curtis, Heinz, Garrett & O'Keefe P.C.
2

 
 U.S. District Court Eastern District of Missouri (St. Louis) CIVIL DOCKET FOR CASE #: 4:16−cv−00180−CDP

CLOSED

United States of America v. City of Ferguson Assigned to: District Judge Catherine D. Perry Cause: 28:1331 Federal Question: Other Civil Rights
Special Master

Date Filed: 02/10/2016 Date Terminated: 04/19/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Natashia Tidwell

represented by Natashia Tidwell HOGAN LOVELLS US LLP − Boston 100 High St. 20th Floor Boston, MA 02110 617−371−1076 Email: natashia.tidwell@saul.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff United States of America

represented by Jude J. Volek U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, N.W. Washington, DC 20530 202−353−1077 Email: jude.volek@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Senier U.S. DEPARTMENT OF JUSTICE Civil Rights Division 950 Pennslyvania Avenue, N.W. Washington, DC 20530 202−616−2216 Fax: 202−514−6903 Email: amy.senier@usdoj.gov ATTORNEY TO BE NOTICED

Charles Wesley Hart , Jr. US DEPARTMENT OF JUSTICE − Civil Rights − DC Civil Rights Division 601 D St., N.W. Suite 5200 Washington, DC 20004 202−305−3192 Fax: 202−514−0212 Email: charles.hart@usdoj.gov ATTORNEY TO BE NOTICED

Chiraag Bains U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, N.W. Washington, DC 20530 202−353−1994 Email: chiraag.bains@usdoj.gov

Christy Ellen Lopez US DEPARTMENT OF JUSTICE − Civil

V. Defendant City of Ferguson, Missouri

Rights − DC Civil Rights Division 601 D St., N.W. Suite 5200 Washington, DC 20004 202−305−4061 Email: Christy.Lopez@law.georgetown.edu ATTORNEY TO BE NOTICED
Megan R. Marks US DEPARTMENT OF JUSTICE − Civil Rights − DC Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530 202−616−2579 Fax: 202−514−0212 Email: megan.marks@usdoj.gov ATTORNEY TO BE NOTICED
Nancy Glass DOJ−Crt US Department of Justice −− Civil Rights Division 150 M Street NE Washington, DC 20001 202−307−5096 Email: nancy.glass@usdoj.gov ATTORNEY TO BE NOTICED
Sharon I. Brett US DEPARTMENT OF JUSTICE − Civil Rights − DC Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530 202−353−1091 Email: Kimberly.Seward@usdoj.gov ATTORNEY TO BE NOTICED
represented by Kevin M. O'Keefe CURTIS, HEINZ, GARRETT & O'KEEFE 130 S. Bemiston Avenue Suite 200 St. Louis, MO 63105−1951 314−725−8788 Fax: 314−725−8789 Email: kokeefe@chgolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aarnarian (Apollo) D. Carey LEWIS RICE, LLC 600 Washington Suite 2500 St. Louis, MO 63101 314−444−7788 Fax: 314−612−7788 Email: acarey@lewisrice.com ATTORNEY TO BE NOTICED

Special Master
Clark Kent Ervin TERMINATED: 12/12/2017

Dan Keith Webb WINSTON AND STRAWN LLP 35 W. Wacker Drive Chicago, IL 60601 312−558−5600 Fax: 312−558−5700 Email: dwebb@winston.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jared Lyons Hasten WINSTON AND STRAWN LLP 35 W. Wacker Drive Chicago, IL 60601 312−558−5600 Fax: 312−558−5700 Email: jhasten@winston.com TERMINATED: 05/25/2017 PRO HAC VICE
Jeffrey J. Huelskamp WINSTON AND STRAWN LLP 35 W. Wacker Drive Chicago, IL 60601 312−558−5600 Fax: 312−558−5700 Email: jhuelskamp@winston.com ATTORNEY TO BE NOTICED
William C. O'Neil WINSTON AND STRAWN LLP 35 W. Wacker Drive Chicago, IL 60601 312−558−5308 Fax: 312−558−5700 Email: woneil@winston.com ATTORNEY TO BE NOTICED
represented by Clark Kent Ervin SQUIRE PATTON BOGGS − DC 2550 M St., NW Washington, DC 20037 202−457−5234 Fax: 202−457−6000 Email: clark.ervin@squirepb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/10/2016 02/11/2016
02/11/2016

# Docket Text
1 COMPLAINT against defendant City of Ferguson, Missouri Non−Jury Demand,, filed by United States. (Attachments: # 1 Civil Cover Sheet, # 2 Original Filing Form, # 3 Form Process Receipt and Return, # 4 Summons)(Volek, Jude) (Entered: 02/10/2016)
Case Opening Notification: 1 Summons(es) issued. The summons was emailed to Jude Volek. All parties must file the Notice Regarding Magistrate Judge Jurisdiction Form (moed−0041.pdf) consenting to or opting out of the Magistrate Judge jurisdiction. Judge Assigned: Honorable Noelle C. Collins. (MFG) (Entered: 02/11/2016)
Pursuant to Local Rule 2.08, the assigned/referred magistrate judge is designated and authorized by the court to exercise full authority in this assigned/referred action or matter under 28 U.S.C. Sec. 636 and 18 U.S.C Sec. 3401. (CSAW) (Entered: 02/11/2016)

03/03/2016 03/04/2016 03/04/2016
03/04/2016 03/06/2016 03/17/2016
03/17/2016
03/17/2016 03/17/2016 03/17/2016 03/17/2016
03/18/2016 03/24/2016 03/28/2016

5 CJRA ORDER (GJL). Judge Magistrate Judge Noelle C. Collins termed. Case reassigned to Judge District Judge Catherine D. Perry for all further proceedings (KXS) (Entered: 03/05/2016)
2 ENTRY of Appearance by Kevin M. O'Keefe for Defendant City of Ferguson, Missouri. (O'Keefe, Kevin) (Entered: 03/04/2016)
3 Consent MOTION for Extension of Time to File Answer re 1 Complaint by Defendant City of Ferguson, Missouri. (O'Keefe, Kevin) [A techinical error occurred during the filing of the document. The document was refiled. See document # 4 for correct Consent Motion for Extension of Time to File Answer.] Modified on 3/4/2016 (BRP). (Entered: 03/04/2016)
4 Consent MOTION for Extension of Time to File Answer re 1 Complaint by Defendant City of Ferguson, Missouri. (O'Keefe, Kevin) (Entered: 03/04/2016)
6 Docket Text ORDER: Re: 4 Consent MOTION for Extension of Time to File Answer re 1 Complaint by Defendant City of Ferguson ; ORDERED GRANTED. Signed by District Judge Catherine D. Perry on 3/6/16. (CDP) (Entered: 03/06/2016)
7 MOTION for Leave to Appear Pro Hac Vice Jared Lyons Hasten. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−5314083) by Defendant City of Ferguson, Missouri. (Attachments: # 1 Certificate of Good Standing)(Hasten, Jared) (Entered: 03/17/2016)
8 MOTION for Leave to Appear Pro Hac Vice Dan K. Webb. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−5314438) by Defendant City of Ferguson, Missouri. (Attachments: # 1 Certificate of Good Standing)(Webb, Dan) (Entered: 03/17/2016)
9 ENTRY of Appearance by Chiraag Bains for Plaintiff United States of America. (Bains, Chiraag) (Entered: 03/17/2016)
10 ENTRY of Appearance by Amy Senier for Plaintiff United States of America. (Senier, Amy) (Entered: 03/17/2016)
11 ENTRY of Appearance by Christy Lopez for Plaintiff United States of America. (Lopez, Christy) (Modified on 3/18/2016 and attorney added to docket sheet.) (CBL). (Entered: 03/17/2016)
12 Joint MOTION for Relief Joint Motion for Entry of Consent Decree by Plaintiff United States of America. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A − Consent Decree)(Volek, Jude) (Additional attachment(s) added on 4/18/2016: # 3 Attachment A − Attachment to the Consent Decree) (EAB). (Entered: 03/17/2016)
13 Docket Text ORDER: Re: [7, 8] MOTIONS for Leave to Appear Pro Hac Vice Jared Lyons Hasten, Dan K. Webb; ORDERED GRANTED. Signed by District Judge Catherine D. Perry on 3/18/16. (CDP) (Entered: 03/18/2016)
14 ENTRY of Appearance by Charles Wesley Hart, Jr for Plaintiff United States of America. (Hart, Charles) (Entered: 03/24/2016)
15 ORDER SETTING PUBLIC HEARING − IT IS HEREBY ORDERED that a public hearing to consider input from the community about the proposed consent decree will be held on Tuesday, April 19, 2016 at 9:30 a.m. in Courtroom 3 North, Thomas F. Eagleton Federal Courthouse, 111 South 10th Street, St. Louis Missouri 63102. Written Comments: Any person wishing to provide written comments about the proposed Consent Decree may do so by filing a written submission of no more than 10 pages with the Clerk of this Court. Written submissions must be received no later than April 12, 2016 at 4:30 p.m. Written submissions may be hand delivered or mailed to: Clerk of Court, United States District Court,Thomas Eagleton United States Courthouse,111 South 10th Street, St. Louis, Missouri 63102,Re: United States v. City of Ferguson, Case No. 4:16CV180 CDP. All written submissions considered will be filed in the Court's public docket in this case and will be made publicly available on the Court's website. Persons making written submissions must include their full names on the letter or document they submit, but must not put their addresses on the letter or document itself because addresses will not be made public. Instead, the submitting party's full name andaddress m ust be placed on the envelope in which the document is

04/01/2016 04/04/2016 04/11/2016 04/11/2016
04/12/2016
04/12/2016 04/12/2016 04/12/2016 04/12/2016 04/12/2016 04/12/2016 04/12/2016 04/12/2016 04/12/2016 04/12/2016 04/12/2016 04/12/2016

submitted, and the envelopes will be filed under seal. No emails, telephone calls, or anonymous submissions will be accepted. Speaking at the Meeting: Members of the public who wish to speak may do so by appearing at Courtroom 3 North between 8:00 and 9:00 a.m. on the day of the hearing to register to speak. Counsel and parties to the case will be given the opportunity to speak first. Statements by members of the public will be taken in the order people registered and will be limited to five minutes each. All persons speaking must speak from the lectern, state their names, and direct their comments to the court.Space Limitations: Space is limited in the courtroom. If necessary, the court may require persons to rotate in and out of the courtroom. The courtroom will be open beginning at 8:45 a.m. Courthouse Rules: All persons entering the courthouse must present a government issued photo ID before they will be allowed to enter; all persons will be screened by a metal detector. No recording or photography is allowed inside the courthouse. No eating, drinking or gum chewing is allowed in the courtroom. In Court Hearing set for 4/19/2016 09:30 AM in Courtroom 3N before District Judge Catherine D. Perry. Signed by District Judge Catherine D. Perry on March 28, 2016. (MCB) (Entered: 03/28/2016)
17 RESPONSE TO COURT ORDER − Public Comment from Theodis Brown, Sr. (Attachments: # 1 envelope)(CBL) (Entered: 04/05/2016)
16 RESPONSE TO COURT ORDER − Public Comment from Keith Kallstrom. (Attachment(s) # 1 envelope). (EAB). (Entered: 04/04/2016)
18 RESPONSE TO COURT ORDER − Public Comment from OpenTheGovernment.org. (Attachments: # 1 envelope)(CBL) (Entered: 04/11/2016)
19 RESPONSE TO COURT ORDER − Public Comment from City of New Orleans Office of Independent Police Monitor. (Attachments: # 1 envelope)(CBL) (Entered: 04/11/2016)
20 RESPONSE TO COURT ORDER − Public Comment from James P. Scanlan. (Attachments: # 1 FedEx Express envelope, # 2 envelope)(MCB) (Entered: 04/12/2016)
21 RESPONSE TO COURT ORDER − Public Comment from Debra Kennedy. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
22 RESPONSE TO COURT ORDER − Public Comment from Keith Rose. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
23 RESPONSE TO COURT ORDER − Public Comment from Karl Tricamo. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
24 RESPONSE TO COURT ORDER − Public Comment from Dwayne Isrig. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
25 RESPONSE TO COURT ORDER − Public Comment from Jara Connell. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
26 RESPONSE TO COURT ORDER − Public Comment from Angelique Ayn Kidd. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
27 RESPONSE TO COURT ORDER − Public Comment from Francesca Griffin. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
28 RESPONSE TO COURT ORDER − Public Comment from Wendell Phillip Berwick. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
29 RESPONSE TO COURT ORDER − Public Comment from Billy H. Tucker. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
30 RESPONSE TO COURT ORDER − Public Comment from Kelly Schlereth. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
31 RESPONSE TO COURT ORDER − Public Comment from Joe Lynett. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
32 RESPONSE TO COURT ORDER − Public Comment from Mike Urness. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)

04/12/2016 04/12/2016 04/12/2016 04/12/2016 04/12/2016 04/12/2016 04/15/2016 04/18/2016 04/19/2016 04/19/2016
04/19/2016
04/19/2016 04/22/2016 05/09/2016
07/20/2016

33 RESPONSE TO COURT ORDER − Public Comment from Sara J. Holmes. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
34 RESPONSE TO COURT ORDER − Public Comment from Blake Ashby. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
35 RESPONSE TO COURT ORDER − Public Comment from Linda Henseik. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
36 RESPONSE TO COURT ORDER − Public Comment from Justin Hansford. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
37 RESPONSE TO COURT ORDER − Public Comment from Emily Davis. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
38 RESPONSE TO COURT ORDER − Public Comment from NAACP Legal Defense and Educational Fund by Monique Dixon. (Attachments: # 1 envelope)(MCB) (Entered: 04/12/2016)
39 Joint MOTION for Leave to File Attachment A to the Consent Decree by Defendant City of Ferguson, Missouri. (Attachments: # 1 Attachment A)(Hasten, Jared) (Entered: 04/15/2016)
40 Docket Text ORDER: Re: 39 Joint MOTION for Leave to File Attachment A to the Consent Decree by Defendant City of Ferguson, Missouri; ORDERED GRANTED. Signed by District Judge Catherine D. Perry on 4/18/16. (EAB) (Entered: 04/18/2016)
41 CONSENT DECREE − GRANTING : 12 Joint MOTION for Relief Joint Motion for Entry of Consent Decree filed by United States of America. Signed by District Judge Catherine D. Perry on April 19, 2016. (Attachments: # 1 Consent Decree Attachment A)(MCB) (Entered: 04/19/2016)
42 Minute Entry for proceedings held before District Judge Catherine D. Perry: Motion Hearing held on 4/19/2016. Parties present for Motion Hearing. The Court hears comments from 32 people of the public. Attorneys from both sides heard by the Court. The Court Grants The Consent Decree. (Court Reporter:G. Madden.)(FTR Gold Operator initials:N/A.) (FTR Gold: No.) (EAB) (Entered: 04/19/2016)
43 TRANSCRIPT of 42 (Excerpt of Ruling from Motion Hearing)) held on April 19, 2016 before Judge Catherine D. Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/10/2016. Redacted Transcript Deadline set for 5/20/2016. Release of Transcript Restriction set for 7/18/2016. (MCB) Modified on 4/20/2016 (MCB). (Entered: 04/19/2016)
44 Sign In Sheet for Motion Hearing re 42 . (EAB) (Entered: 04/20/2016)
45 TRANSCRIPT ORDER REQUEST for 42 (MOTION HEARING) by City of Ferguson, Missouri court reporter G. Madden before Judge Catherine Perry.. (Hasten, Jared) Order Request forwarded to court reporter G. Madden on 4/25/2016 (CBL). (Entered: 04/22/2016)
46 TRANSCRIPT of 42 (MOTION HEARING) held on April 19, 2016 before Honorable Catherine D. Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/31/2016. Redacted Transcript Deadline set for 6/9/2016. Release of Transcript Restriction set for 8/8/2016. (CBL) (Entered: 05/09/2016)
47 Joint MOTION for Relief for Approval of Consent Decree Monitor Selection and for a Status Hearing by Plaintiff United States of America. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit A, # 4 Exhibit B)(Volek, Jude) (Entered: 07/20/2016)

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48 ORDER. After careful review, IT IS HEREBY ORDERED that the joint motion for approval of monitor selection 47 is granted, and the Squire Patton Boggs team, led by Clark Ervin, is appointed as Monitor of the Consent Decree. IT IS FURTHER ORDERED that there will be a status hearing on Wednesday, September 7, 2016 at 1:00 p.m. in Courtroom 14−South to provide the parties and the Monitor with an opportunity to update the Court on the status of implementation of the Consent Decree. Signed by District Judge Catherine D. Perry on 7/22/2016. (CBL) (Entered: 07/22/2016)
49 MEMORANDUM for Court Outlining Timeline for Consent Decree Requirements (JOINT) by Defendant City of Ferguson, Missouri. (Attachments: # 1 Exhibit)(Webb, Dan) (Entered: 09/02/2016)
50 Minute Entry for proceedings held before District Judge Catherine D. Perry: Status Conference held on 9/7/2016. Parties present for status conference. Both sides heard by the Court regarding the status of the case. Statement heard by the Court from a member of the monitoring team. The Court and parties discuss ongoing meeting sessions. Next status conference to be set by the Court. (Court Reporter:G. Madden)(FTR Gold Operator initials:N/A) (FTR Gold: No) (EAB) (Entered: 09/07/2016)
51 STATUS REPORT (Initial) by City of Ferguson, Missouri. (Hasten, Jared) (Entered: 10/17/2016)
52 ORDER. IT IS HEREBY ORDERED that this matter is set for a status hearing on Tuesday, December 6, 2016 at 1:00 p.m. in Courtroom 14−South to provide the parties and the Monitor with an opportunity to update the Court on the status of implementation of the Consent Decree. Signed by District Judge Catherine D. Perry on 10/19/2016. (CBL) (Entered: 10/19/2016)
53 TRANSCRIPT of 50 (STATUS CONFERENCE) held on September 7, 2016 before Honorable Catherine D. Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/10/2016. Redacted Transcript Deadline set for 11/21/2016. Release of Transcript Restriction set for 1/18/2017. (CBL) (Entered: 10/20/2016)
54 STATUS REPORT (Amendment to the Initial Status Report) by City of Ferguson, Missouri. (Hasten, Jared) (Entered: 10/21/2016)
55 STATUS REPORT Independent Monitor Initial Work Plan by Clark Kent Ervin. (Ervin, Clark) (Entered: 12/05/2016)
56 Minute Entry for proceedings held before District Judge Catherine D. Perry: Status Conference held on 12/6/2016. Counsel heard regarding the implementation of the Consent Decree. The Court also heard from the Monitor, Clark Ervin. Order to follow setting the next status conference. (Court Reporter:G. Madden) (FTR Gold: No) (MCB) (Entered: 12/06/2016)
57 ENTRY of Appearance by Aarnarian (Apollo) D. Carey for Defendant City of Ferguson, Missouri. (Carey, Aarnarian (Apollo)) (Entered: 12/15/2016)
58 TRANSCRIPT of 56 (STATUS CONFERENCE) held on 12/6/16 before Judge Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/2/2017. Redacted Transcript Deadline set for 2/13/2017. Release of Transcript Restriction set for 4/12/2017. (EAB) (Entered: 01/12/2017)
59 ORDER. IT IS HEREBY ORDERED that this matter is set for a status hearing on Wednesday, March 22, 2017 at 2:00 p.m. in Courtroom 14−South to provide the parties and the Monitor with an opportunity to update the Court on the status of implementation of the Consent Decree. Signed by District Judge Catherine D. Perry on 2/10/2017. (CBL) (Entered: 02/10/2017)

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60 ENTRY of Appearance by Sharon I. Brett for Plaintiff United States of America. (Brett, Sharon) (Entered: 02/22/2017)
61 ORDER. (See Full Order.) IT IS HEREBY ORDERED that at the status hearing scheduled for March 22, 2017 at 2:00 p.m., the Court will hear only from the lawyers for the Department of Justice, the City of Ferguson, and the Monitor, Clark Ervin. IT IS FURTHER ORDERED that the next status hearing is set for Thursday, June 22, 2017 at 2:00 p.m. in Courtroom 14 South. Members of the public who wish to speak may do so by appearing at Courtroom 14 South between 1:30 and 1:50 p.m. on the day of the hearing to register. Counsel and parties to the case will be given the opportunity to speak first. Statements by members of the public will be taken in the order the person signed up and will be limited to five minutes each. All persons speaking must speak from the lectern, state their names, and direct their comments to the Court. Signed by District Judge Catherine D. Perry on 3/14/2017. (CBL) (Entered: 03/14/2017)
62 Minute Entry for proceedings held before District Judge Catherine D. Perry: Status Conference held on 3/22/2017. Parties present for status hearing. Counsel and Special Master heard by the Court regarding case status. The Court states and explains its position in the case to counsel and to the public present at the hearing. Next status hearing is set for 6−22−17 at 2:00 p.m. (Court Reporter:G. Madden)(FTR Gold Operator initials:N/A) (FTR Gold: No) (EAB) (Entered: 03/22/2017)
63 TRANSCRIPT of 62 (STATUS CONFERENCE) held on March 22, 2017 before Judge Catherine D. Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/20/2017. Redacted Transcript Deadline set for 5/1/2017. Release of Transcript Restriction set for 6/28/2017. (MCB) (Entered: 03/30/2017)
64 MOTION to Withdraw as Attorney ;attorney/firm Jared L. Hasten by Defendant City of Ferguson, Missouri. (Hasten, Jared) (Entered: 05/24/2017)
65 Docket Text ORDER: Re: 64 MOTION to Withdraw as Attorney ;attorney/firm Jared L. Hasten by Defendant City of Ferguson, Missouri. ORDERED: GRANTED. Signed by District Judge Catherine D. Perry on 5/25/2017. (CBL) (Entered: 05/25/2017)
66 MOTION for Leave to Appear Pro Hac Vice William C. ONeil. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−6001743) by Defendant City of Ferguson, Missouri. (Attachments: # 1 Certificate of Good Standing)(O'Neil, William) (Entered: 06/14/2017)
67 MOTION for Leave to Appear Pro Hac Vice Jeffrey J. Huelskamp. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−6001814) by Defendant City of Ferguson, Missouri. (Attachments: # 1 Certificate of Good Standing)(Huelskamp, Jeffrey) (Entered: 06/14/2017)
68 Docket Text ORDER: Re: [66, 67] MOTIONS for Leave to Appear Pro Hac Vice William C. ONeil, Jeffrey J. Huelskamp; ORDERED GRANTED. Signed by District Judge Catherine D. Perry on 6/14/17. (CDP) (Entered: 06/14/2017)
69 Minute Entry for proceedings held before District Judge Catherine D. Perry: Status Conference held on 6/22/2017. Parties present for status conference. Counsel and Monitor heard regarding status of Consent Degree. Twelve people addressed their statement/concerns to the Court. The Court made comments to counsel and the public that were present for the hearing. (Court Reporter:G. Madden) (FTR Gold: No) (MCB) (Entered: 06/22/2017)
70 Sign In Sheet re: re 69 Status Conference held on June 23, 2017. (MCB) (Entered: 06/23/2017)
71 DOCUMENT by non−party Blake Ashby submitted at status conference held on June 22, 2017. (MCB) (Entered: 06/23/2017)
72 DOCUMENT by non−party John Chasnoff submitted at status conference held on June 22, 2017. (MCB) (Entered: 06/23/2017)

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73 TRANSCRIPT of 69 (STATUS CONFERENCE) held on June 22, 2017 before Honorable Catherine D. Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/26/2017. Redacted Transcript Deadline set for 8/7/2017. Release of Transcript Restriction set for 10/3/2017. (CBL) (Main Document 73 replaced on 7/6/2017) (CBL). (Entered: 07/05/2017)
74 ORDER. IT IS HEREBY ORDERED that there will be a status hearing on Tuesday, September 19, 2017 at 1:00 p.m. in Courtroom 14−South to provide the parties and the Monitor with an opportunity to update the Court on the status of implementation of the Consent Decree. Signed by District Judge Catherine D. Perry on 8/11/2017. (CBL) (Entered: 08/11/2017)
75 Minute Entry for proceedings held before District Judge Catherine D. Perry: Status Conference held on 9/19/2017. Parties present for the quarterly monitoring status conference. Natashia Tidwell appears on behalf of the monitoring team. The parties update the court on the status of the case. Next status conference to be set by the court. (Court Reporter:Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987)(FTR Gold Operator initials:N/A) (FTR Gold: No) (EAB) (Entered: 09/19/2017)
76 TRANSCRIPT of 75 (STATUS CONFERENCE) held on September 19, 2017 before Honorable Catherine D. Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/20/2017. Redacted Transcript Deadline set for 10/30/2017. Release of Transcript Restriction set for 12/28/2017. (CBL) (Entered: 09/29/2017)
77 ORDER. This case is set for a status hearing on Tuesday, December 12, 2017 at 1:00 p.m. in Courtroom 14−South. The purpose of the status hearing is to provide the parties and the Monitor with an opportunity to update the court on the status of the implementation of the Consent Decree. Members of the public, in addition to the monitor and counsel for the parties, will be allowed to speak as set out below. Accordingly, IT IS HEREBY ORDERED that a status hearing will be held on Tuesday, December 12, 2017 at 1:00 p.m. in Courtroom 14 South. IT IS FURTHER ORDERED that any members of the public who wish to speak may do so by appearing at Courtroom 14 South between 12:30 and 12:50 p.m. on the day of the hearing to register. Counsel and parties to the case will be given the opportunity to speak first. Statements by members of the public will be taken in the order the person signed up and will be limited to five minutes each. All persons speaking must speak from the lectern, state their names, and direct their comments to the Court. Signed by District Judge Catherine D. Perry on 10/16/2017. (CBL) (Entered: 10/16/2017)
78 Minute Entry for proceedings held before District Judge Catherine D. Perry: Status Conference held on 12/12/2017. Parties present for status hearing. Both sides and lead monitor heard by the Court regarding the status of the case. Eleven people addressed the Court with public comments. Both sides and lead monitor provide response regarding public comments. Next quarterly status conference to be set by the Court. (Court Reporter:Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987)(FTR Gold Operator initials:N/A) (FTR Gold: No) (EAB) (Entered: 12/12/2017)
79 Sign In Sheet for Public Comment re 78 Status Conference. (EAB) (Entered: 12/12/2017)
80 ORDER Approving Natashia Tidwell as Lead Consent Decree Monitor. Signed by District Judge Catherine D. Perry on 1/2/18. (EAB) (Entered: 01/02/2018)
81 TRANSCRIPT of 78 (STATUS CONFERENCE) before Judge Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due

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1/31/2018. Redacted Transcript Deadline set for 2/12/2018. Release of Transcript Restriction set for 4/10/2018. (EAB) (Entered: 01/10/2018)
82 ORDER. IT IS HEREBY ORDERED that there will be a quarterly status hearing on Tuesday, March 6, 2018 at 10:00 a.m. in Courtroom 14−South to provide the parties and the Monitor with an opportunity to update the Court on the status of implementation of the Consent Decree. IT IS FURTHER ORDERED that a quarterly status hearing will be held on Tuesday, June 26, 2018 at 2:00 p.m. in Courtroom 14 South. The purpose of this status hearing is to provide the parties and the Monitor with an opportunity to update the court on the status of the implementation of the Consent Decree. Members of the public, in addition to the monitor and counsel for the parties, will be allowed to speak at the June 26, 2018 hearing as set out below. IT IS FURTHER ORDERED that any members of the public who wish to speak at the June 26, 2018 hearing may do so by appearing at Courtroom 14 South between 1:30 and 1:50 p.m. on the day of the hearing to register. Counsel and parties to the case will be given the opportunity to speak first. Statements by members of the public will be taken in the order the person signed up and will be limited to five minutes each. All persons speaking must speak from the lectern, state their names, and direct their comments to the Court. Signed by District Judge Catherine D. Perry on 2/2/18. (EAB) (Entered: 02/02/2018)
83 Minute Entry for proceedings held before District Judge Catherine D. Perry: Status Conference held on 3/6/2018. Parties present for status conference. Both sides and the lead monitor heard by the court regarding case status. Next quarterly status conference is set for 6/26/18 at 2:00 p.m. which will include public comments. (Court Reporter:Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987)(FTR Gold Operator initials:N/A) (FTR Gold: No) (EAB) (Entered: 03/06/2018)
84 TRANSCRIPT of 83 (STATUS CONFERENCE) held on March 6, 2018 before Honorable Catherine D. Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/10/2018. Redacted Transcript Deadline set for 4/20/2018. Release of Transcript Restriction set for 6/18/2018. (CBL) (Entered: 03/20/2018)
85 STATUS REPORT by Natashia Tidwell. (Attachments: # 1 Appendices)(Tidwell, Natashia) (Entered: 03/30/2018)
86 Joint MOTION to Amend/Correct 41 Order, by Plaintiff United States of America. (Hart, Charles) (Entered: 06/18/2018)
87 MEMORANDUM in Support of Motion re 86 Joint MOTION to Amend/Correct 41 Order, filed by Plaintiff United States of America. (Hart, Charles) (Entered: 06/18/2018)
88 ORDER MODIFYING CONSENT DECREE. After careful review, IT IS HEREBY ORDERED that the joint motion to modify Paragraphs 80, 81(a), 115, and 341 of the Consent Decree 86 is granted, and Paragraphs 80, 81(a), 115, and 341 only of the Consent Decree entered on April 19, 2016 41 are modified as follows: 1) Paragraph 80 now reads as follows: "FPD officers will not conduct pretextual stops except where the actual reason for the stop is to investigate suspected unlawful conduct that poses a risk to public safety." 2) Paragraph 81(a) now reads as follows: "Introduce themselves by name and rank as soon as reasonable and practicable. It will be FPD practice to also provide the stopped individual an FPD business card at the end of a stop. The business card should include the name and badge number of the officer's supervisor;" 3) Paragraph 115 now reads as follows: "FPD will ensure that officers do not search, seize, or otherwise coerce production of recorded sounds, images, or videos without obtaining a warrant. Where an officer has a reasonable belief that a bystander or witness has captured a recording of critical evidence related to a serious crime and the exigencies of the circumstances demand it, the officer may secure such evidence for no more than 12 hours while a legal subpoena, search warrant, or other valid order is obtained. Upon seizing such property, officers may not search or review its contents without first obtaining a search warrant." 4) Paragraph 341 now reads follows: "The City agrees to maintain a public list of preset fines (Traffic Violations Bureau or

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"TVB" fines) for all municipal ordinance violations for which preset fines are allowed under Missouri law. The City further agrees to ensure that the fine amounts used for preset fines are consistent with the fine amounts specified on the Uniform Fine Schedule for St. Louis County." IT IS FURTHER ORDERED that all remaining provisions of the Consent Decree entered on April 19, 2016 not specifically modified above remain in full force and effect. Signed by District Judge Catherine D. Perry on 6/21/2018. (CBL) (Entered: 06/21/2018)
89 Minute Entry for proceedings held before District Judge Catherine D. Perry: Quarterly Status Hearing held on 6/26/2018. Parties present for quarterly status hearing on consent decree. The Court and public hear from the Special Master, the United States and the City of Ferguson. Public comments made. Next status conference to be set by separate order. (Court Reporter:Shannon White, Shannon_White@moed.uscourts.gov, 314−244−7966) (FTR Gold: No) (CBL) (Entered: 06/26/2018)
90 Sign In Sheet for Public Comment re 89 Quarterly Status Hearing. (Attachments: # 1 Exhibit to Comments of Felicia Pulliam)(CBL) (Entered: 06/26/2018)
91 TRANSCRIPT of 89 (STATUS CONFERENCE) held on June 26, 2018 before Honorable Catherine D. Perry. Court Reporter/Transcriber Shannon White, Shannon_White@moed.uscourts.gov, 314−244−7966. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/23/2018. Redacted Transcript Deadline set for 8/2/2018. Release of Transcript Restriction set for 10/1/2018. (CBL) (Entered: 07/02/2018)
***REMARK − Transcript document # 91 updated today with correct version. Notice regenerated to all parties. (EAB) (Entered: 08/03/2018)
92 ORDER. IT IS HEREBY ORDERED that there will be a quarterly status hearing on Tuesday, September 18, 2018 at 3:00 p.m. in Courtroom 14−South to provide the parties and the Monitor with an opportunity to update the Court on the status of implementation of the Consent Decree. The hearing will be held in open court and the public is welcome to attend, but only the parties and the monitor will make presentations or comments at the hearing. Signed by District Judge Catherine D. Perry on 8/10/2018. (CBL) (Entered: 08/10/2018)
93 Minute Entry for proceedings held before District Judge Catherine D. Perry: Status Conference held on 9/18/2018. Parties present for quarterly status hearing regarding consent decree. The Court and public hear from the Special Master, the United States and the City of Ferguson. Next status conference to be set by separate order. (Court Reporter:Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987) (FTR Gold: No) (CBL) (Entered: 09/18/2018)
94 TRANSCRIPT of 93 (STATUS CONFERENCE) held on 9/18/18 before Judge Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/17/2018. Redacted Transcript Deadline set for 10/29/2018. Release of Transcript Restriction set for 12/26/2018. (EAB) (Entered: 09/26/2018)
95 ENTRY of Appearance by Megan R. Marks for Plaintiff United States of America. (Marks, Megan) (Entered: 10/03/2018)
96 ORDER. IT IS HEREBY ORDERED that there will be a quarterly status hearing on Wednesday, December 5, 2018 at 11:00 a.m. in Courtroom 14−South to provide the parties and the Monitor with an opportunity to update the Court on the status of implementation of the Consent Decree. Members of the public, in addition to the Monitor and counsel for the parties, will be allowed to speak at the hearing as set out below. IT IS FURTHER ORDERED that any members of the public who wish to speak at the December 5, 2018 hearing may do so by appearing at Courtroom 14−South between 10:30 and 10:50 a.m. on the day of the hearing to register. Counsel and parties to the case will be given the opportunity to speak first. Statements by members of the public will be taken in the order the person signed up and will be limited to five minutes each. All persons speaking must speak from the lectern, state

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their names, and direct their comments to the Court. Signed by District Judge Catherine D. Perry on 10/11/18. (EAB) (Entered: 10/11/2018)
97 MEMORANDUM Accompanying the Amended and Restated Consent Decree by Plaintiff United States of America. (Attachments: # 1 Amended and Restated Consent Decree)(Marks, Megan) (Entered: 11/15/2018)
98 AMENDED and RESTATED Consent Decree by Defendant City of Ferguson, Missouri, Plaintiff United States of America. (CBL) (Entered: 11/15/2018)
99 MEMORANDUM AND ORDER −(See Order for complete details.) This case is currently set for a quarterly status hearing on Wednesday, December 5, 2018 at 11:00 a.m. in Courtroom 14−South to provide the parties and the Monitor with an opportunity to update the Court on the status of the implementation of the Consent Decree. Members of the public will also be allowed to speak at the hearing as long as they comply with the requirements set out in the October 11, 2018 Order. 1 I will also consider written comments from the public if they are submitted in compliance with the following requirements: IT IS HEREBY ORDERED that any person wishing to provide written comments regarding the status of the implementation of the Consent Decree may do so by filing a written submission of no more than 10 pages with the Clerk of this Court. Written submissions must be received no later than Friday, November 30, 2018 at 4:30 p.m. Written submissions may be hand delivered or mailed to: Clerk of Court, United States District Court, Thomas Eagleton United States Courthouse, 111 South 10th Street, St. Louis, Missouri 63102, Re: United States v. City of Ferguson, Case No. 4: 16 CV 180 CDP. Signed by District Judge Catherine D. Perry on November 15, 2018. (MCB) (Entered: 11/15/2018)
100 STATUS REPORT for Fall 2018 by Natashia Tidwell. (Attachments: # 1 Appendices)(Tidwell, Natashia) (Entered: 11/30/2018)
101 Letter to The Honorable Catherine D. Perry from Ferguson Collaborative re:status of Consent Decree (MCB) (Entered: 12/03/2018)
102 SEALED DOCUMENT/Envelope re 101 Letter . (MCB) (Entered: 12/03/2018)
103 Letter to Judge Perry from NAACP Legal Defense and Education Fund re:comments (Attachments: # 1 Exhibit A) (MCB) (Entered: 12/04/2018)
104 SEALED DOCUMENT/Envelope re 103 Letter . (MCB) (Entered: 12/04/2018)
105 ORDER. Because of the National Day of Mourning and the closing of the Thomas F. Eagleton Courthouse, the public hearing previously scheduled for Wednesday, December 5, 2018 is rescheduled for Monday, December 17, 2018 at 1:00 p.m. in Courtroom 14−South. The same procedures as established before will apply and members of the public who wish to speak should arrive to sign up between [12:30 and 12:50 a.m.] on the day of the hearing; members of the public who wish to submit written statements should do so no later than Wednesday, December 12, 2018. Signed by District Judge Catherine D. Perry on 12/4/18. (EAB) (Entered: 12/04/2018)
106 AMENDED ORDER: Because of the National Day of Mourning and the closing of the Thomas F. Eagleton Courthouse, the public hearing previously scheduled for Wednesday, December 5, 2018 is rescheduled for Monday, December 17, 2018 at 1:00 p.m. in Courtroom 14−South. The same procedures as established before will apply and members of the public who wish to speak should arrive to sign up between 12:30 and 12:50 p.m. on the day of the hearing; members of the public who wish to submit written statements should do so no later than Wednesday, December 12, 2018.Signed by District Judge Catherine D. Perry on 12/4/18. (CDP) (Entered: 12/04/2018)
107 Letter to Judge Perry from Felicia Pulliam and Emily Davis on behalf of the Ferguson Collaborative re: additional written testimony for United States v. City of Ferguson. (MCB) (Entered: 12/14/2018)
108 SEALED DOCUMENT/File folder (instead of envelope) re 107 Letter . (MCB) (Entered: 12/14/2018)
109 ELECTRONIC MINUTE ENTRY (no pdf attached) for proceedings held before District Judge Catherine D. Perry: Quarterly Status Hearing with public speaking held on 12/17/2018. The Court heard from Natashia Tidwell, Lead Consent Decree

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Monitor, counsel for USA and City of Ferguson. Comments made by the public. Counsel for USA and City of Ferguson responded to public comments as well as the Consent Decree Monitor. (Court Reporter:Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987) (proceedings started: 1:07) (proceedings ended: 3:19)(Deputy Clerk: M. Berg)Appearance for Plaintiff: Jude Volek, Megan Marks)(Appearance for Defendant: Aarnarian Carey) (MCB) (Entered: 12/17/2018)
110 SIGN IN SHEET FOR PUBLIC COMMENT re 109 Status Conference. (MCB) (Entered: 12/17/2018)
111 TRANSCRIPT of 109 (STATUS CONFERENCE) held on December 17, 2018 before Judge Catherine D. Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/7/2019. Redacted Transcript Deadline set for 2/19/2019. Release of Transcript Restriction set for 4/17/2019. (MCB) (Entered: 01/17/2019)
112 ORDER. IT IS HEREBY ORDERED that there will be a quarterly status hearing on Wednesday, April 3, 2019 at 10:00 a.m. in Courtroom 14−South to provide the parties and the Monitor with an opportunity to update the Court on the status of implementation of the Consent Decree. The hearing will be held in open court and the public is welcome to attend, but only the parties and the Monitor will make presentations or comments at the hearing. Signed by District Judge Catherine D. Perry on 2/21/2019. (CBL) (Entered: 02/21/2019)
113 ORDER − IT IS HEREBY ORDERED that the quarterly status hearing to provide the parties and the Monitor with an opportunity to update the Court on the status of implementation of the Consent Decree is reset from 10:00 a.m. to 3:00 p.m. on Wednesday, April 3, 2019 in Courtroom 14−South. The hearing will be held in open court and the public is welcome to attend, but only the parties and the Monitor will make presentations or comments at the hearing. Signed by District Judge Catherine D. Perry on March 4, 2019. (MCB) (Entered: 03/04/2019)
114 ELECTRONIC MINUTE ENTRY (no pdf attached) for proceedings held before District Judge Catherine D. Perry: Quarterly Status Conference regarding the Consent Degree held on 4/3/2019. The Court heard from the Special Master, the United States and the City of Ferguson. (Court Reporter:Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987) (proceedings started: 3:04) (proceedings ended: 4:15)(Deputy Clerk: M. Berg)(Special Master: Nathashia Tidwell) (Appearance for Plaintiff: Jude Volek, Charles Hart, Jr.)(Appearance for Defendant: Aarnarian Carey) (MCB) (Entered: 04/03/2019)
115 ORDER − IT IS HEREBY ORDERED that there will be a quarterly status hearing on Tuesday, July 2, 2019 at 1:00 p.m. in Courtroom 14−South to provide the parties and the Monitor with an opportunity to update the Court on the status of implementation of the Consent Decree. Members of the public, in addition to the Monitor and counsel for the parties, will be allowed to speak at the hearing as set out below. IT IS FURTHER ORDERED that any members of the public who wish to speak at the July 2, 2019 hearing may do so by appearing at Courtroom 14−South between 12:30 and 12:50 a.m. on the day of the hearing to register. Counsel and parties to the case will be given the opportunity to speak first. Statements by members of the public will be taken in the order the person signed up and will be limited to five minutes each. All persons speaking must speak from the lectern, state their names, and direct their comments to the Court. Signed by District Judge Catherine D. Perry on May 21, 2019. (MCB) (Entered: 05/21/2019)
116 TRANSCRIPT of 114 (STATUS CONFERENCE) held on 4/3/19 before Judge Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/14/2019. Redacted Transcript Deadline set for 6/24/2019. Release of Transcript Restriction set for 8/22/2019. (EAB) (Entered: 05/28/2019)

06/06/2019
06/28/2019 07/02/2019
07/02/2019 07/19/2019 08/09/2019 10/02/2019
10/30/2019

117 AMENDED ORDER. IT IS HEREBY ORDERED that there will be a quarterly status hearing on Tuesday, July 2, 2019 at 1:00 p.m. in Courtroom 14−South to provide the parties and the Monitor with an opportunity to update the Court on the status of implementation of the Consent Decree. Members of the public, in addition to the Monitor and counsel for the parties, will be allowed to speak at the hearing as set out below. IT IS FURTHER ORDERED that any members of the public who wish to speak at the July 2, 2019 hearing may do so by appearing at Courtroom 14−South between 12:30 p.m. and 12:50 p.m. on the day of the hearing to register. Counsel and parties to the case will be given the opportunity to speak first. Statements by members of the public will be taken in the order the person signed up and will be Signed by District Judge Catherine D. Perry on 6/6/2019. (CBL) (Entered: 06/06/2019)
118 STATUS REPORT by Natashia Tidwell. (Attachments: # 1 Appendices to the Spring 2019 Status Report)(Tidwell, Natashia) (Entered: 06/28/2019)
119 ELECTRONIC MINUTE ENTRY (no pdf attached) for proceedings held before District Judge Catherine D. Perry: Quarterly Status Conference regarding the Consent Degree held on 7/2/19. Special Master, United States and the City of Ferguson heard by the Court regarding the progress of the consent decree. Public comments heard by the Court. Next quarterly status conference to be set by the Court. (Court Reporter:Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987) (proceedings started: 1:06 pm) (proceedings ended: 3:20 pm)(Deputy Clerk: E. Brown)(Appearance for Plaintiff: (Special Master: Natashia Tidwell) (Appearance for Plaintiff: Jude Volek, Amy Senior)(Appearance for Defendant: Apollo Carey) (EAB) (Entered: 07/02/2019)
120 Public Comment Sign in Sheet − Re: Hearing held on 7/2/19. (EAB) (Entered: 07/03/2019)
121 TRANSCRIPT of 119 (STATUS CONFERENCE) held on JULY 2, 2019 before Judge CATHERINE D. PERRY. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/9/2019. Redacted Transcript Deadline set for 8/19/2019. Release of Transcript Restriction set for 10/17/2019. (BRP) (Entered: 07/19/2019)
122 ORDER: IT IS HEREBY ORDERED that there will be a quarterly status hearing on Wednesday, October 2, 2019 at 11:00 a.m. in Courtroom 14−South to provide the parties and the Monitor with an opportunity to update the Court on the status of implementation of the Consent Decree. The hearing will be held in open court and the public is welcome to attend, but only the parties and the Monitor will make presentations or comments at the hearing. (Status Conference set for 10/2/2019 11:00 AM in Courtroom 14S before District Judge Catherine D. Perry.) Signed by District Judge Catherine D. Perry on August 9, 2019. (BRP) (Entered: 08/09/2019)
ELECTRONIC MINUTE ENTRY (no pdf attached) for proceedings held before District Judge Catherine D. Perry: Status Conference held on 10/2/2019. Quarterly Status Conference regarding the Consent Degree held. The Court heard from the Special Master, the United States and the City of Ferguson. A future Status Conference will be scheduled. (Court Reporter:Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987) (proceedings started: 10:58am) (proceedings ended: 11:38am)(Deputy Clerk: K. Battle)(Appearance for Plaintiff: Aarnarian (Apollo) D. Carey)(Appearance for Defendant: Judge Volek, Amy Senier, Charles Wesley Hart, Jr, and Megan Marks) (KCB) (Entered: 10/02/2019)
123 TRANSCRIPT of (STATUS CONFERENCE) held on October 2, 2019 before Judge Catherine D. Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. (Redaction Request due 11/20/2019. Redacted Transcript Deadline set for 12/2/2019. Release of Transcript Restriction set for 1/28/2020.) (TMT) (Entered: 10/30/2019)

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124 ORDER: IT IS HEREBY ORDERED that there will be a quarterly status hearing on Wednesday, January 8, 2020 at 10:00 a.m. in Courtroom 14−South to provide the parties and the Monitor with an opportunity to update the Court on the status of implementation of the Consent Decree. Members of the public, in addition to the Monitor and counsel for the parties, will be allowed to speak at the hearing as set out below. IT IS FURTHER ORDERED that any members of the public who wish to speak at the January 8, 2020 hearing may do so by appearing at Courtroom 14−South between 9:30 and 9:50 a.m. on the day of the hearing to register. Counsel and parties to the case will be given the opportunity to speak first. Statements by members of the public will be taken in the order the person signed up and will be limited to five minutes each. All persons speaking must speak from the lectern, state their names, and direct their comments to the Court. (Status Hearing set for 1/8/2020 10:00 AM in Courtroom 14S − St. Louis before District Judge Catherine D. Perry.) Signed by District Judge Catherine D. Perry on 11/8/2019. (TMT) (Entered: 11/08/2019)
125 ENTRY of Appearance by Nancy Glass for Plaintiff United States of America. (Glass, Nancy) (Entered: 01/07/2020)
126 ELECTRONIC MINUTE ENTRY (no pdf attached) for proceedings held before District Judge Catherine D. Perry: Status Conference held on 1/8/2020. The Court hears from the counsel for the United States of America and City of Ferguson, Missouri and the Court Monitor Natashia Tidwell. The Court also hears statements from the public. The next status conference without public comments will be in three months. The next status conference with public comments will be in six months. (Court Reporter:Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987) (proceedings started: 10:11 PM) (proceedings ended: 12:12 PM)(Deputy Clerk: B. Porter)(Appearance for Plaintiff: Amy Senier, Charles hart, Megan Marks, Nancy Glass)(Appearance for Defendant: Aarnarian (Apollo) Carey) (BRP) (Entered: 01/08/2020)
127 Public Comment Sign in Sheet re. Status Conference (BRP) (Entered: 01/08/2020)
128 STATUS REPORT for Winter 2020 by Natashia Tidwell. (Attachments: # 1 Appendix A, # 2 Appendix B)(Tidwell, Natashia) (Entered: 01/31/2020)
129 TRANSCRIPT of 126 (STATUS CONFERENCE) held on January 8, 2020 before Judge Catherine D. Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. (Redaction Request due 2/26/2020. Redacted Transcript Deadline set for 3/9/2020. Release of Transcript Restriction set for 5/5/2020.) (TMT) (Transcript forwarded to IT for addition to website on 2/7/2020.) (CBL). (Entered: 02/06/2020)
130 ORDER. IT IS HEREBY ORDERED that there will be a quarterly status hearing on Thursday, April 23, 2020 at 10:00 a.m. in Courtroom 14−South to provide the parties and the Monitor with an opportunity to update the Court on the status of implementation of the Consent Decree. The hearing will be held in open court and the public is welcome to attend, but only the parties and the Monitor will make presentations or comments at the hearing. (Status Conference set for 4/23/2020 10:00 AM in Courtroom 14S − St. Louis before District Judge Catherine D. Perry.) Signed by District Judge Catherine D. Perry on 2/12/2020. (CBL) (Entered: 02/12/2020)
131 MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the status hearing set for April 23, 2020 at 10:00 a.m. in Courtroom 14−South is cancelled. The Court continues to regularly confer with the parties and the monitor regarding the continued progress of the implementation of the Consent Decree and expects to send out an Order in May or June of this year regarding the scheduling of the next status conference. Signed by District Judge Catherine D. Perry on 4/2/2020. (TMT) (Entered: 04/02/2020)
132 MEMORANDUM AND ORDER SETTING TELEPHONIC STATUS HEARING : IT IS HEREBY ORDERED that the Court will hold a videoconference status hearing with all counsel and the monitor on Thursday, June 4, 2020 at 2:00 p.m. The Court will provide counsel and the monitor with the procedures for joining the videoconference. IT IS FURTHER ORDERED that any members of the public who wish to listen to the hearing may do so by calling in to the Courts conference line by

06/04/2020 06/05/2020

dialing the following number: (877)336−1839 and entering Access Code 3539352. IT IS FURTHER ORDERED that any person wishing to provide written comments regarding the status of the implementation of the Consent Decree may do so by sending a written submission of no more than five pages to the Monitor at Fergusonmonitor@hoganlovells.com by no later than 5 p.m. on June 2, 2020. Persons making written submissions must include their full names. No telephone calls, anonymous submissions, or written submissions that do not comply with these requirements will be considered. The monitor will provide copies of the emails to the parties and to the Court before the hearing. (Status Conference set for 6/4/2020 02:00 PM in Video Conference 14S before District Judge Catherine D. Perry.) Signed by District Judge Catherine D. Perry on 05/18/2020. (KCB) (Entered: 05/18/2020)
133 ELECTRONIC MINUTE ENTRY (no pdf attached) for proceedings held before District Judge Catherine D. Perry: Status Conference held on 6/4/2020. The Court hears from the counsel for the United States of America and City of Ferguson, Missouri and the Court Monitor Natashia Tidwell. The next status conference will be scheduled with public comments. Under Section 15002(b)(2)(A) of the CARES act, in response to the COVID−19 crisis this Court authorizes the use of video and telephone conferencing for civil hearings. Counsel participates by video conference. (Court Reporter:Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987) (proceedings started: 2:07pm) (proceedings ended: 3:20pm)(Deputy Clerk: K. Battle)(Appearance for Plaintiff: Jude Volek, Amy Senier, Charles Hart, Megan Marks, and Nancy Glass)(Appearance for Defendant: Appollo Carey) (KCB) (Entered: 06/04/2020)
134 TRANSCRIPT of 133 (STATUS CONFERENCE) held on June 4, 2020 before Judge Catherine D. Perry. Court Reporter/Transcriber Gayle Madden, Gayle_Madden@moed.uscourts.gov, 314−244−7987. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/26/2020. Redacted Transcript Deadline set for 7/6/2020. Release of Transcript Restriction set for 9/3/2020. (KCB) (Entered: 06/05/2020)

 
 I. REPORT SUMMARY
The Civil Rights Division of the United States Department of Justice opened its investigation of the Ferguson Police Department (“FPD”) on September 4, 2014. This investigation was initiated under the pattern-or-practice provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d (“Safe Streets Act”), and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (“Title VI”). This investigation has revealed a pattern or practice of unlawful conduct within the Ferguson Police Department that violates the First, Fourth, and Fourteenth Amendments to the United States Constitution, and federal statutory law.
Over the course of the investigation, we interviewed City officials, including City Manager John Shaw, Mayor James Knowles, Chief of Police Thomas Jackson, Municipal Judge Ronald Brockmeyer, the Municipal Court Clerk, Ferguson’s Finance Director, half of FPD’s sworn officers, and others. We spent, collectively, approximately 100 person-days onsite in Ferguson. We participated in ride-alongs with on-duty officers, reviewed over 35,000 pages of police records as well as thousands of emails and other electronic materials provided by the police department. Enlisting the assistance of statistical experts, we analyzed FPD’s data on stops, searches, citations, and arrests, as well as data collected by the municipal court. We observed four separate sessions of Ferguson Municipal Court, interviewing dozens of people charged with local offenses, and we reviewed third-party studies regarding municipal court practices in Ferguson and St. Louis County more broadly. As in all of our investigations, we sought to engage the local community, conducting hundreds of in-person and telephone interviews of individuals who reside in Ferguson or who have had interactions with the police department. We contacted ten neighborhood associations and met with each group that responded to us, as well as several other community groups and advocacy organizations. Throughout the investigation, we relied on two police chiefs who accompanied us to Ferguson and who themselves interviewed City and police officials, spoke with community members, and reviewed FPD policies and incident reports.
We thank the City officials and the rank-and-file officers who have cooperated with this investigation and provided us with insights into the operation of the police department, including the municipal court. Notwithstanding our findings about Ferguson’s approach to law enforcement and the policing culture it creates, we found many Ferguson police officers and other City employees to be dedicated public servants striving each day to perform their duties lawfully and with respect for all members of the Ferguson community. The importance of their often-selfless work cannot be overstated.
We are also grateful to the many members of the Ferguson community who have met with us to share their experiences. It became clear during our many conversations with Ferguson residents from throughout the City that many residents, black and white, genuinely embrace Ferguson’s diversity and want to reemerge from the events of recent months a truly inclusive, united community. This Report is intended to strengthen those efforts by recognizing the harms caused by Ferguson’s law enforcement practices so that those harms can be better understood and overcome.
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Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs. This emphasis on revenue has compromised the institutional character of Ferguson’s police department, contributing to a pattern of unconstitutional policing, and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harm on members of the Ferguson community. Further, Ferguson’s police and municipal court practices both reflect and exacerbate existing racial bias, including racial stereotypes. Ferguson’s own data establish clear racial disparities that adversely impact African Americans. The evidence shows that discriminatory intent is part of the reason for these disparities. Over time, Ferguson’s police and municipal court practices have sown deep mistrust between parts of the community and the police department, undermining law enforcement legitimacy among African Americans in particular.
Focus on Generating Revenue
The City budgets for sizeable increases in municipal fines and fees each year, exhorts police and court staff to deliver those revenue increases, and closely monitors whether those increases are achieved. City officials routinely urge Chief Jackson to generate more revenue through enforcement. In March 2010, for instance, the City Finance Director wrote to Chief Jackson that “unless ticket writing ramps up significantly before the end of the year, it will be hard to significantly raise collections next year. . . . Given that we are looking at a substantial sales tax shortfall, it’s not an insignificant issue.” Similarly, in March 2013, the Finance Director wrote to the City Manager: “Court fees are anticipated to rise about 7.5%. I did ask the Chief if he thought the PD could deliver 10% increase. He indicated they could try.” The importance of focusing on revenue generation is communicated to FPD officers. Ferguson police officers from all ranks told us that revenue generation is stressed heavily within the police department, and that the message comes from City leadership. The evidence we reviewed supports this perception.
Police Practices
The City’s emphasis on revenue generation has a profound effect on FPD’s approach to law enforcement. Patrol assignments and schedules are geared toward aggressive enforcement of Ferguson’s municipal code, with insufficient thought given to whether enforcement strategies promote public safety or unnecessarily undermine community trust and cooperation. Officer evaluations and promotions depend to an inordinate degree on “productivity,” meaning the number of citations issued. Partly as a consequence of City and FPD priorities, many officers appear to see some residents, especially those who live in Ferguson’s predominantly AfricanAmerican neighborhoods, less as constituents to be protected than as potential offenders and sources of revenue.
This culture within FPD influences officer activities in all areas of policing, beyond just ticketing. Officers expect and demand compliance even when they lack legal authority. They are inclined to interpret the exercise of free-speech rights as unlawful disobedience, innocent movements as physical threats, indications of mental or physical illness as belligerence. Police supervisors and leadership do too little to ensure that officers act in accordance with law and policy, and rarely respond meaningfully to civilian complaints of officer misconduct. The result is a pattern of stops without reasonable suspicion and arrests without probable cause in violation of the Fourth Amendment; infringement on free expression, as well as retaliation for protected
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expression, in violation of the First Amendment; and excessive force in violation of the Fourth Amendment.
Even relatively routine misconduct by Ferguson police officers can have significant consequences for the people whose rights are violated. For example, in the summer of 2012, a 32-year-old African-American man sat in his car cooling off after playing basketball in a Ferguson public park. An officer pulled up behind the man’s car, blocking him in, and demanded the man’s Social Security number and identification. Without any cause, the officer accused the man of being a pedophile, referring to the presence of children in the park, and ordered the man out of his car for a pat-down, although the officer had no reason to believe the man was armed. The officer also asked to search the man’s car. The man objected, citing his constitutional rights. In response, the officer arrested the man, reportedly at gunpoint, charging him with eight violations of Ferguson’s municipal code. One charge, Making a False Declaration, was for initially providing the short form of his first name (e.g., “Mike” instead of “Michael”), and an address which, although legitimate, was different from the one on his driver’s license. Another charge was for not wearing a seat belt, even though he was seated in a parked car. The officer also charged the man both with having an expired operator’s license, and with having no operator’s license in his possession. The man told us that, because of these charges, he lost his job as a contractor with the federal government that he had held for years.
Municipal Court Practices
Ferguson has allowed its focus on revenue generation to fundamentally compromise the role of Ferguson’s municipal court. The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests. This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements. The court’s practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety.
Most strikingly, the court issues municipal arrest warrants not on the basis of public safety needs, but rather as a routine response to missed court appearances and required fine payments. In 2013 alone, the court issued over 9,000 warrants on cases stemming in large part from minor violations such as parking infractions, traffic tickets, or housing code violations. Jail time would be considered far too harsh a penalty for the great majority of these code violations, yet Ferguson’s municipal court routinely issues warrants for people to be arrested and incarcerated for failing to timely pay related fines and fees. Under state law, a failure to appear in municipal court on a traffic charge involving a moving violation also results in a license suspension. Ferguson has made this penalty even more onerous by only allowing the suspension to be lifted after payment of an owed fine is made in full. Further, until recently, Ferguson also added charges, fines, and fees for each missed appearance and payment. Many pending cases still include such charges that were imposed before the court recently eliminated them, making it as difficult as before for people to resolve these cases.
The court imposes these severe penalties for missed appearances and payments even as several of the court’s practices create unnecessary barriers to resolving a municipal violation. The court often fails to provide clear and accurate information regarding a person’s charges or court obligations. And the court’s fine assessment procedures do not adequately provide for a defendant to seek a fine reduction on account of financial incapacity or to seek alternatives to
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payment such as community service. City and court officials have adhered to these court practices despite acknowledging their needlessly harmful consequences. In August 2013, for example, one City Councilmember wrote to the City Manager, the Mayor, and other City officials lamenting the lack of a community service option and noted the benefits of such a program, including that it would “keep those people that simply don’t have the money to pay their fines from constantly being arrested and going to jail, only to be released and do it all over again.”
Together, these court practices exacerbate the harm of Ferguson’s unconstitutional police practices. They impose a particular hardship upon Ferguson’s most vulnerable residents, especially upon those living in or near poverty. Minor offenses can generate crippling debts, result in jail time because of an inability to pay, and result in the loss of a driver’s license, employment, or housing.
We spoke, for example, with an African-American woman who has a still-pending case stemming from 2007, when, on a single occasion, she parked her car illegally. She received two citations and a $151 fine, plus fees. The woman, who experienced financial difficulties and periods of homelessness over several years, was charged with seven Failure to Appear offenses for missing court dates or fine payments on her parking tickets between 2007 and 2010. For each Failure to Appear, the court issued an arrest warrant and imposed new fines and fees. From 2007 to 2014, the woman was arrested twice, spent six days in jail, and paid $550 to the court for the events stemming from this single instance of illegal parking. Court records show that she twice attempted to make partial payments of $25 and $50, but the court returned those payments, refusing to accept anything less than payment in full. One of those payments was later accepted, but only after the court’s letter rejecting payment by money order was returned as undeliverable. This woman is now making regular payments on the fine. As of December 2014, over seven years later, despite initially owing a $151 fine and having already paid $550, she still owed $541.
Racial Bias
Ferguson’s approach to law enforcement both reflects and reinforces racial bias, including stereotyping. The harms of Ferguson’s police and court practices are borne disproportionately by African Americans, and there is evidence that this is due in part to intentional discrimination on the basis of race.
Ferguson’s law enforcement practices overwhelmingly impact African Americans. Data collected by the Ferguson Police Department from 2012 to 2014 shows that African Americans account for 85% of vehicle stops, 90% of citations, and 93% of arrests made by FPD officers, despite comprising only 67% of Ferguson’s population. African Americans are more than twice as likely as white drivers to be searched during vehicle stops even after controlling for non-race based variables such as the reason the vehicle stop was initiated, but are found in possession of contraband 26% less often than white drivers, suggesting officers are impermissibly considering race as a factor when determining whether to search. African Americans are more likely to be cited and arrested following a stop regardless of why the stop was initiated and are more likely to receive multiple citations during a single incident. From 2012 to 2014, FPD issued four or more citations to African Americans on 73 occasions, but issued four or more citations to non-African Americans only twice. FPD appears to bring certain offenses almost exclusively against African Americans. For example, from 2011 to 2013, African Americans accounted for 95% of Manner of Walking in Roadway charges, and 94% of all Failure to Comply charges. Notably, with
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respect to speeding charges brought by FPD, the evidence shows not only that African Americans are represented at disproportionately high rates overall, but also that the disparate impact of FPD’s enforcement practices on African Americans is 48% larger when citations are issued not on the basis of radar or laser, but by some other method, such as the officer’s own visual assessment.
These disparities are also present in FPD’s use of force. Nearly 90% of documented force used by FPD officers was used against African Americans. In every canine bite incident for which racial information is available, the person bitten was African American.
Municipal court practices likewise cause disproportionate harm to African Americans. African Americans are 68% less likely than others to have their cases dismissed by the court, and are more likely to have their cases last longer and result in more required court encounters. African Americans are at least 50% more likely to have their cases lead to an arrest warrant, and accounted for 92% of cases in which an arrest warrant was issued by the Ferguson Municipal Court in 2013. Available data show that, of those actually arrested by FPD only because of an outstanding municipal warrant, 96% are African American.
Our investigation indicates that this disproportionate burden on African Americans cannot be explained by any difference in the rate at which people of different races violate the law. Rather, our investigation has revealed that these disparities occur, at least in part, because of unlawful bias against and stereotypes about African Americans. We have found substantial evidence of racial bias among police and court staff in Ferguson. For example, we discovered emails circulated by police supervisors and court staff that stereotype racial minorities as criminals, including one email that joked about an abortion by an African-American woman being a means of crime control.
City officials have frequently asserted that the harsh and disparate results of Ferguson’s law enforcement system do not indicate problems with police or court practices, but instead reflect a pervasive lack of “personal responsibility” among “certain segments” of the community. Our investigation has found that the practices about which area residents have complained are in fact unconstitutional and unduly harsh. But the City’s personal-responsibility refrain is telling: it reflects many of the same racial stereotypes found in the emails between police and court supervisors. This evidence of bias and stereotyping, together with evidence that Ferguson has long recognized but failed to correct the consistent racial disparities caused by its police and court practices, demonstrates that the discriminatory effects of Ferguson’s conduct are driven at least in part by discriminatory intent in violation of the Fourteenth Amendment.
Community Distrust
Since the August 2014 shooting death of Michael Brown, the lack of trust between the Ferguson Police Department and a significant portion of Ferguson’s residents, especially African Americans, has become undeniable. The causes of this distrust and division, however, have been the subject of debate. Police and other City officials, as well as some Ferguson residents, have insisted to us that the public outcry is attributable to “outside agitators” who do not reflect the opinions of “real Ferguson residents.” That view is at odds with the facts we have gathered during our investigation. Our investigation has shown that distrust of the Ferguson Police Department is longstanding and largely attributable to Ferguson’s approach to law enforcement. This approach results in patterns of unnecessarily aggressive and at times unlawful policing;
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reinforces the harm of discriminatory stereotypes; discourages a culture of accountability; and neglects community engagement. In recent years, FPD has moved away from the modest community policing efforts it previously had implemented, reducing opportunities for positive police-community interactions, and losing the little familiarity it had with some AfricanAmerican neighborhoods. The confluence of policing to raise revenue and racial bias thus has resulted in practices that not only violate the Constitution and cause direct harm to the individuals whose rights are violated, but also undermine community trust, especially among many African Americans. As a consequence of these practices, law enforcement is seen as illegitimate, and the partnerships necessary for public safety are, in some areas, entirely absent.
Restoring trust in law enforcement will require recognition of the harms caused by Ferguson’s law enforcement practices, and diligent, committed collaboration with the entire Ferguson community. At the conclusion of this report, we have broadly identified the changes that are necessary for meaningful and sustainable reform. These measures build upon a number of other recommended changes we communicated verbally to the Mayor, Police Chief, and City Manager in September so that Ferguson could begin immediately to address problems as we identified them. As a result of those recommendations, the City and police department have already begun to make some changes to municipal court and police practices. We commend City officials for beginning to take steps to address some of the concerns we have already raised. Nonetheless, these changes are only a small part of the reform necessary. Addressing the deeply embedded constitutional deficiencies we found demands an entire reorientation of law enforcement in Ferguson. The City must replace revenue-driven policing with a system grounded in the principles of community policing and police legitimacy, in which people are equally protected and treated with compassion, regardless of race.
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