The following is in reference to the Civil Rights Division of the Department of Justice and their report on the Ferguson Police Department. This should not be confused with the report on Darren Wilson and the Michael Brown shooting, which was apparently conducted primarily by the St. Louis Field Office of the FBI. I discussed that report here:
No policing agency is without fault. To be sure, the law of averages assures that there are bad officers in any department. The removal of those unfit to wear a badge is a noble pursuit of a just society or failing that, an unjust society that aspires to justice. Unfortunately, in a rush to fulfill a preordained narrative about a racist police department, the Department of Justice abdicated its responsibility toward this end in reference to the Ferguson Police Department for the following reasons:
1.) Legitimate cases of abuses were not investigated fully, making prosecution impossible.
2.) The Justice Department routinely cites cases as constitutional violations where none are present.
3.) The Justice Department baselessly criticizes lawful common police practice throughout the entire state as unconstitutional and deceptively attributes these practices exclusively to the Ferguson Police Department
4.) The Justice Department mischaracterizes statistical evidence, in some cases willfully and in others incompetently, without providing necessary components for deeper analysis such as data tables, median figures, or references to specific officers.
5.) The Justice Department demonstrates a clear lack of understanding for criminal Law.
1.) It is important to note that the Justice Department found a number of indefensible problems within the Ferguson Police Department. The most oft cited (but far from the only) example is a number of racist emails sent between three employees. However, the racist emails pale in comparison, both in importance and in severity to a number of specific allegations, which if true should warrant immediate disciplinary action (if not outright termination) and prosecution.
A.) Witness testimony was prematurely released to the public prior to any attempt at prosecution.
B.) Witness Follow ups/ Follow Up Investigations were not conducted to either confirm or discredit allegations.
C.) Without corroboration, legitimate claims are mixed with illegitimate claims making legitimate claims easier to incorrectly dismiss.
D.) Specific officers are not referenced (even by pseudonym) so trends in stories cannot be established even if evidence is lacking for prosecution on specific cases. To be fair there are a few instances where a specific officer is referenced due to their involvement in another story, but they are uncommon. The end result is the appearance that the allegations are widespread throughout the department, but this assertion is unable to be proven because the officers are all anonymous even from a pseudonym or a numbering system.
The intent appears to be to discredit the entire department and not to actually target officers worthy of removal (which is a problem that becomes clearer when discussing the statistical analysis or lack there of). This perception also allows for the presentation of borderline or blatantly false witness testimony without the due diligence necessary for any constitutional standard of evidence. The end result is one of two possibilities:
-Either there is not enough evidence to support an allegation.
-The Justice Department didn’t look hard enough.
To be sure, there is reason to question the validity of claims made by the protester community of Ferguson and those from the Canfield Green area in particular. During the investigation into the shooting of Michael Brown, investigators interviewed approximately one hundred purported witnesses to the incident, of which eight were deemed by the FBI to be credible.
2.) The Justice Department routinely cites cases as constitutional violations where none are present.
A.) PED Checks
The DOJ found specific fault with the Ferguson Police Department’s use of Pedestrian Checks or PED Checks which it deemed almost outright were unconstitutional. However, the notion of PED Checks is supported by Terry v. Ohio and the notion of reasonable suspicion. As such police departments across the country engage in this activity by this name or others. Furthermore, without reasonable suspicion, officers can still use what is called voluntary compliance to make contact with someone whom they may think is a participant in crime or planning to commit a crime, but don’t quite have enough proof to justify a detention.
For example, if I don’t have cause to detain someone walking around a neighborhood where there’s been car break-in’s but I want to talk to that person anyway, I can ask them to come speak with me. If they come over willingly and start having a conversation, I don’t require reasonable suspicion for the contact. They are free to leave at any time.
In contrast, if I were to order this person to come speak with me, that would be a different story. Without reasonable suspicion, they can inform me to pound sand and continue on their way. However, if I can articulate reasonable suspicion (a low standard as it is), I can detain them for a reasonable amount of time until I complete my minor investigation into who they are and what they are doing.
The Justice Department frequently references incidents of pedestrian checks either where the DOJ just assumes that a stop was involuntary/without cause without looking into the incident further or accepting what a witness said at face value.
B.) Arresting Protesters
In another example, when discussing the arrest of protesters in February of this year, the DOJ claimed that the suspects were peaceful and doing nothing wrong when arrested. The writer went on to indicate that the DOJ felt that the action was retribution for writing on the sidewalk and on patrol cars in the parking lot. Ironically, the discussion of the act of writing on cars is acknowledgement by the DOJ of the commission of crimes, in this case either Tampering in the 2nd Degree (RSMO 569.090) or Property Damage in the 2nd Degree (RSMO 569.120).
In reference to the same event, the DOJ also faulted the Ferguson Police for arresting individuals who were in the street because they were only momentarily in the street. Setting aside the fact for the moment that the protesters have been running in and out of the roadway at S. Florissant and been obstructing traffic in front of the Ferguson Police Department for months which has been well documented, timeframe is not a consideration on Peace Disturbance (RSMO 574.010). The crime was either committed or it was not. Utilizing officer discretion not to arrest someone before that point is not proof of innocence.
The DOJ went through great lengths to argue for the lawful authority of private citizens to record the police and consequently found fault with the Ferguson Police Department for seizing cameras taken from individuals filming the police. While that argument is sound, they fail to acknowledge that once a crime has been committed on camera, the camera is now a matter of evidence and it is the officer’s lawful authority to seize that device for the purposes of prosecution/preservation. Anyone who would attempt to restrict the officer from doing so would then be in violation of Tampering with Physical Evidence (RSMO 575.100.2).
” A person commits the crime of tampering with physical evidence if he:
(1) Alters, destroys, suppresses or conceals any record, document or thing with purpose to impair its verity, legibility or availability in any official proceeding or investigation.”
D.) Repeated Reference to Retribution
The DOJ also repeatedly made reference to unlawful arrests that they felt were only conducted due to some type of slight, real or imagined. However, in many of these cases (though not all), the DOJ goes on to cite some form of arrest-able offense rendering their concern moot. Officers have well established discretion giving us leeway in how to deal with a variety of scenarios.
With a preexisting lawful reason to arrest someone, that can work in someone’s favor or against them. Retaliation for retaliation sake is wrong, but when “retaliation” is code for “didn’t give someone a break” because of their attitude, it lacks both the moral outrage and the unlawful component of the DOJ’s argument. Legal action is either justified or unjustified. Whether or not I feel smug about it after the fact because someone gave me a hard time doesn’t factor into justification for an action.
For example, if I pull someone over for a traffic stop because I have probable cause that they ran a stop sign, I have the discretion to let them go or write them a ticket. If they decide to cuss at me for causing them to be late to work, I’m under no obligation to cut them a break and issue them a verbal warning. In a way, writing them a ticket is still technically retaliation, but it’s hardly illegal or morally objectionable.
3.) The Justice Department routinely cites common police practice throughout the entire state as unconstitutional without basis and deceptively attributes these practices exclusively to the Ferguson Police Department.
The DOJ found issue with Ferguson’s use of “Wanted’s,” which are notices issued through the Missouri State Highway Patrol’s MULES system with specific guidelines to surrounding agencies in reference to events of which those jurisdictions might not be aware. They are not a Ferguson invention. Wanted’s are put out in the immediate aftermath on such things as (but not limited to) for example an individual who just assaulted his girlfriend (IE wanted for Domestic Assault) in another jurisdiction. Other such examples include missing persons or suicidal subjects.
In the case of my domestic assault example, the timeframe facilitates the need for the wanted process when a suspect is believed to have fled a venue. For example, if Ferguson puts out a wanted on this individual in reference to a case I might not have known about otherwise, and I stop their suspect later that night, I can detain him based upon that information until Ferguson can come to pick him up on their probable cause of a crime. A warrant would then be applied for within 24 hours as allowed by constitutional law and case law of which the DOJ Civil Rights Division is ironically unaware. A warrantless arrest is justified based upon probable cause. This is really basic criminal law.
Another agency saying that they have probable cause to believe someone has committed a crime is more than enough to justify the reasonable suspicion requirement to make a detention. If Ferguson refuses to pick the person up or has in course of their investigation determined that this person is no longer needed, they can tell me to release the individual.
Now, the DOJ did find that there was concern raised by a few Ferguson supervisors that some line level officers were sometimes not verifying “wanted”s when detaining someone and simply using it as an excuse to stop someone. This is a misuse of the system, but not a criticism of the system itself. Most importantly, some variation on this system exists in all police departments around the country. Reasonable suspicion and probable cause need not be first hand collections.
B.) Revenue Collection
Revenue is an interesting topic to fixate on for a variety of reasons, but a topic the DOJ decided to spend the majority of their report on Ferguson discussing.
First of all, Ferguson’s rate of around 15% of it’s revenue is far below the 30% maximum regulated by Missouri state statute, RSMO 302.341. There is no Federal Law regulating the maximum allowable amount of revenue by tickets, fines, or court costs. In other words, unless the DOJ was able to prove that the revenue focus was exclusively used to target black people due to the color of their skin (and not their socioeconomic or driver’s status), the civil rights division has no grounds to make any demands on this topic whatsoever.
RSMO 302.341 is made even more interesting by the historical back story that follows “Macks Creek Law.” Back in the seventies, a little town of around 250 residents was making approximately 85% of their revenue from running traffic on the highway that ran through their venue. At some point they stopped the wrong person and the “Macks Creek Law” was born limiting revenue generated from tickets. For the record, Macks Creek has a 97% white demographic. In other words, revenue generation is not even historically racial.
Secondly, and most notably, the DOJ’s hyper-focus on the concept of revenue is ironically an argument against their follow up issue of racial bias. If officers are focused on getting numbers and corresponding statistics, they don’t have time to triage their stops based upon racial bias or hatred. Furthermore, providing that the racial profiling statistics are an accurate measure of racial profiling (Hint: They’re not. See links below), there is no discussion of the SES (socioeconomic status) of their minority demographics. In reference to both municipal courts and racial profiling statistics in general, I have discussed this before:
Those coming from a position of lower SES are more likely to have more things wrong with their cars, simply from the financial difficulties of required maintenance, justifying more traffic tickets during police stops. Those that refuse to show up to court fearing retaliation or imprisonment leads to warrants and a disparity is born, not of race but of finance.
Racial bias is a hollow argument if on the individual level people are in fact violating the laws as alleged. The poor are more likely to bare the brunt of revenue related greed and it is well established that the black community in Ferguson is disproportionately poor. According to the census department only around 700 white residents of 21,000 total residents in Ferguson are living at or below the poverty line. The common thread is class instead of race. Civil rights laws protect discrimination due to race but not discrimination due to financial status.
4.) The Justice Department mischaracterizes statistical evidence, in some cases willfully and in others incompetently, without providing necessary components for deeper analysis such as data tables, median figures, or references to specific officers. The results are then used as evidence of systemic racism. Poverty statistics were already discussed above.
A.) Racial Profiling
Without data tables there’s no way of knowing if the figures the DOJ cites are indicative of repeat offenders. Offenders who are written tickets for various things particularly, license status offenses like suspended / revoked / expired, are unlikely to get that problem fixed in the days following a ticket/arrest for that offense. Therefore they are easy offenses to recognize when encountering the same individuals again. Should repeat outliers be counted toward racial demographics since the same individual is essentially being counted more than once, while their residency is only counted once? If one (1) person is stopped 10 times, of course the end result will be unrepresentative because one (1) person is not representative of 10 people, but in the of case of racial profiling statistics, 10 incidents can account for one driver.
Furthermore, consider Ferguson from the context of neighboring jurisdictions. Disparity ratings and related comparisons weighing specific incidents against resident demographics are the foundation of the DOJ’s statistical evidence. Chris Koster’s Racial Profiling data website (of which data tables ARE available) has recently gone back online. A 1.00 is considered a proportionate level of incidents to residency. A 2.00 would be twice the recorded incidents to residency.
Ferguson’s 2013 disparity indexes:
- Black: 1.37
- White: 0.38
- Asian: 0.37
- Black: 0.91
- White: 3.91
- Asian: 16.64
- Black 0.80
- White: 15.11
- Asian: 2.85
- Black: 1.05
- White: 0.96
- Asian: 3.54
- Black: 0.89
- White: 3.94
- Asian: 2.65
- Black: 0.80
- White: 2.29
- Asian: 0.82
- Black: 1.01
- White: 1.36
- Asian: 0.55
- Black: 0.89
- White: 1.28
- Asian: 3.20
- Black: 1.69
- White: 0.89
- Asian: 0.26
Numerous agencies in jurisdictions with minorities of White and Asian residents have serious disparity problems as it pertains to their minority representation. However, there is no presumption of racial bias on the part of their departments, municipal courts, or city government as far as the Media and the Justice Department are concerned. The reality is that these agencies, particularly those with a revenue focus like Pine Lawn, demonstrate that traffic stops become a matter of randomization and are not a measure of any individual or systemic bias, even if such problems exist. The numbers are so random and incongruent that there are no conclusions to be drawn except that the measure is invalid.
B.) Search Hit Results
The DOJ also found fault with the Ferguson disparity in the contraband hit rate on traffic stops. The largest area of contention is that despite the fact that black drivers were more likely to be searched (which makes sense since they are more likely to be stopped), white driver’s were disproportionately more likely to have contraband discovered during a search.
Of course, this is another statistic that sounds bad out of context. However, the reality is that the majority of vehicles searches occur at night in any venue. What’s more, it’s historically been perceived, whether legitimate or not, to be unsafe for white people to be out after dark in many areas of Ferguson such as those around West Florissant and Canfield. Therefore, the contraband hit rate supports the conclusion that the reason why these white individuals being searched are opting to disregard cultural fear of the area is typically in the pursuit of narcotics.
The DOJ made reference in a later passage to the historical racism in North County where in the 1960s Ferguson was considered a “sun-down town,” a form of disgusting injustice where blacks were not allowed out after dark. It’s ironic that matters have reversed in the same opposite direction where whites are frequently not safe out in these jurisdictions after dark and targeted for crime. This racism is abjectly ignored by the Department of Justice.
C.) Use of Canine
Ferguson’s canine officer deployed the canine 14 times since 2010. That’s literally 3.5 times a year going back from 2014. At face value, 3.5 times annually is unrepresentative of anything at all. I’m also not clear if Ferguson has had the same canine officer throughout this time frame.
The fact that all deployments have been against black suspects sounds problematic but even setting aside the fact that as discussed above, that such a small number is unrepresentative, Graham v. Connor (the Supreme Court case by which all use-of-force is gauged according to the “objectively reasonable” test) doesn’t require demographic congruency. When deciding to use force, the act is either justified based upon the circumstances or it is not.
Furthermore, the DOJ’s discussion of the 14 incidents is made further problematic by the inadvertent admission that they may not have complete data. The report uses the phrase, “…in every canine bite incident, for which information was available the subject was African American.” This leaves the distinct possibility, that seems more than a little likely given the skew toward black suspects, that white suspects are simply not identified based upon their race in the use of force reports. Of course, that also assumes that 4 incidents annually is a high enough number from which to draw any conclusion.
D.) Manner of walking
Another area of concern brought up by the DOJ is the percentage (95%) of individuals who were charged or arrested for “manner of walking” offenses. Interestingly, a common refrain in the days following the shooting of Michael Brown back in August, when the narrative of the gentle giant was at its height, and exacerbated by Tom Jackson’s incorrect statement that Darren Wilson did not know about the robbery, was that it was black culture to walk in the street which made the confrontation even more evil sounding. It was an odd claim at the time and it remains an odd claim now, still maintained by individuals who still ignorantly think that Darren Wilson made contact with Michael Brown in reference to “jaywalking.”
What isn’t really discussed in depth is the related figure presented by the DOJ that 94% of individuals arrested for failure to comply offenses are also black and 92% are arrested for resisting arrest charges. The DOJ argues that these figures are indicative of the Ferguson Police initiating and escalating matters far beyond what is necessary. However, it is also all together possible that these figures are representative not of a police department that is out of control but a community that sees itself as at odds with the police whether justified or unjustified. This is a perception that could result in individuals more likely to be engaging in activity they see as standing up to a great societal evil and manifesting itself as refusing to comply and resisting arrest.
Perception of racism, whether justified or unjustified, still doesn’t excuse individuals to get a pass on breaking the law. Or at least it shouldn’t. Maybe it does now…
If individuals are being harassed based upon their race as defined by their innocence in the offenses accused, that is an entire other issue entirely and should be prosecuted. However, that does not seem to be the case outside of the DOJ’s reliance on anecdotal evidence without corroboration or any indication of a willingness to see that behavior answered for.
5.) The Justice Department demonstrates a clear lack of understanding for Missouri Law.
A.) Trespassing vs. Burglary
In order to make a story involving a canine deployment seem more sinister, the DOJ incorrectly accused the Ferguson Police of mislabeling a trespassing case as a burglary. The circumstances for the case were that a number of juveniles had broken into a vacant building and officers were called. One of the juveniles was apprehended while a second remained in the house. An officer located someone in a closet, but they refused to come out. The individual was advised that if they failed to come out a canine would be sent in after them. The second individual, who it turned out was also a fourteen year old juvenile as well, was apprehended by the canine.
According to the DOJ, this example of burglary is truly a trespassing and from their vitriolic language it was clear they couldn’t believe how that Ferguson PD thought they could get away with demonizing juvenile activity. Ironically, in their own rush to demonize the Ferguson PD, they apparently didn’t check out the state statute for Burglary in the 2nd Degree, RSMO 569.170.2.
Burglary 2nd requires that a person knowingly enter or remain within an inhabitable structure in order to commit a crime. When a burglary is caught in progress, as was the case in this story, the crime to be committed is typically associated with some form of property damage or stealing. Resisting arrest would apply in this case and possibly property damage as well, depending on how the individuals entered the vacant home.
In another case where the DOJ alleges that an SRO unlawfully arrested a juvenile, two girls were fighting and the SRO was contacted by the school. As the DOJ would tell it, the SRO arrested the girl simply for refusing to walk to the principal’s office. In reality, and mentioned almost in passing, instead of going to the principal’s office, the girl tried “to push past staff toward the other girl.” In other words, she tried to assault the girl she had been fighting with earlier which is completely different scenario in contrast to the DOJ’s version where the girl is arrested simply for passive non-compliance.
The DOJ even goes on to condescendingly state, “The SRO’s propensity for arresting students demonstrates a lack of understanding of the negative consequences associated with such arrests.”
C.) Trespassing Again
In another example, the DOJ alleges that the Ferguson PD arrested a black male unlawfully for trespassing after he remained in a home owned by his girlfriend’s grandparents. The DOJ thinks that because the granddaughter invited her boyfriend over, this is not trespassing. Obviously, the owners of the home and their demands take precedence over a non-renting non-homeowner.
As further evidence of the lack of follow up on anecdotal accounts by the DOJ, a few questions remain unanswered that could change the circumstances including:
- A.) Was the granddaughter an adult or a juvenile?
- B.) Was the granddaughter present when her boyfriend was in the house?
- C.) Was the boyfriend advised to leave by the grandparents or did they simply call the police?
- D.) Was there a rental arrangement establishing between the boyfriend and the grandparents?
Instead, the DOJ once again errs on the side of gasp, racism.
D.) Resisting Arrest
The Justice Department also finds fault with the Ferguson PD’s use of resisting arrest charges as a primary charge. Unfortunately, we have very little control over what happens when someone else decides to escalate a situation that was otherwise minor or mundane. To be sure, there are officers out there who will provoke situations through their words and make a simple situation bad, or a bad situation worse. However, the existence of badly behaved officers does not in any way negate the existence of badly behaved citizens.
Take for example the 2011 arrest of two black females for resisting arrest which the DOJ claimed was unlawful and unnecessary. When pulled over for speeding, the two occupants jumped out, started trying to argue with officers, and refused to get back in their car. Given that the DOJ acknowledges that the stop was justified, the two women arrestees are escalating a simple traffic stop and resisting a lawful detention (which is an example of resisting arrest in Missouri). In this case not only is the arrest lawful according to RSMO 575.150.2, it is in fact the primary charge given the circumstances. A speeding ticket might be issued just to reinforce probable cause of the traffic offense resulting in the stop, but that ticket still wouldn’t apply to the passenger who was also arrested, since that individual was not driving.
The discussion on the resisting arrest cases is indicative of the flawed perspective perpetuated by the DOJ that citizens in Ferguson are not responsible for their own actions. Apparently Ferguson Officers are to blame when their citizens resist arrest or commit crimes. As further evidence of this perspective, the Justice Department goes on to double down on their rhetoric by claiming that the arrest described above was essentially based upon a speeding ticket, a gross mischaracterization.
Why might an officer not react well to an individual jumping out of a vehicle and escalating a routine traffic stop for seemingly no reason? This is why:
I’ve referenced the above case before. Pictured is a mentally ill Vietnam veteran in the act of murdering a Georgia Sheriff’s Deputy by the name of Kyle Dinkheller. I bring the issue up because this stop started as mundanely as any, but the individual left his vehicle, started dancing, attacked the deputy with his hands, and then returned to his vehicle where he retrieved a rifle. All the while, the Deputy stayed back near his car ordering the driver to give up and following up every command by addressing his soon-to-be-killer as, “sir.” Matters first escalated when the driver decided to exit his vehicle.
Three officers have been shot in Ferguson since September. Numerous others have been shot at since August. Why should the behavior of the two occupants discussed above be tolerated by anyone? Of course, if riots are tolerated, if attempted murder as in the case of the officers in front of the Ferguson Police Department is tolerated or argued to be justified, if completed murder as in the case of DeAndre Joshua is tolerated, what is really off limits?