Justice Department to Go After Ferguson for Racist Policing, Not for Killing Michael Brown

The U.S. Department of Justice may not pursue charges against Darren Wilson, the white police officer who killed Michael Brown in Ferguson, Mo., last August.


But the DOJ apparently is going after Ferguson’s police for demonstrably racist practices that violate federal civil rights laws, including targeting black drivers for stops without reasonable suspicion, making arrests without probable cause and using excessive force.

These are takeaways from the as-yet-unreleased DOJ report on Ferguson leaked to The New York Times and Washington Post, which noted how local police in the small St. Louis suburb have been disproportionately violating the constitutional rights of non-whites for years, all to boost city revenues while creating a local debtor’s prison.

The stewing institutional racism in Ferguson’s Police Department created “years of racial animosity leading to the officer’s shooting of a black teenager,” the Times said, linking Brown’s death to a larger pattern of abusive policing. 

“The [DOJ] review concludes that racial bias and a focus generating revenue over public safety have a profound effect on Ferguson police and court practices and routinely violate the Constitution and federal law,” the Post said. “The Justice review also found a pattern of Ferguson police using unreasonable force against citizens.”

The Justice Department is expected to release its long-awaited report on abusive policing in Ferguson this week. These reports are used to negotiate sweeping reforms with local law enforcement agencies, which are subject to federal court oversight. The Post said Ferguson city officials and its police force are “cooperating” with the DOJ.

While that may be the case, the DOJ’s investigation has revealed an astounding level of racist policing in Ferguson. Between 2012 and 2104, blacks accounted for 85 percent of all people stopped by the police; 90 percent of all citations; 88 percent of the cases where force was used; every incident where police dogs bit people; 96 percent of all traffic stop arrests; and 95 percent of people jailed for more than two days, the Post reported

The traffic stops, arrests, fines and jail time are the subject of one lawsuit, filed by civil rights groups and the St. Louis University School of Law in early February. It said city officials “built a municipal scheme designed to brutalize, to punish, and to profit” and described a system where poor people ended up in modern debtor prison.

In 2013, Ferguson, population 21,000, issued nearly 33,000 arrest warrants for unpaid traffic violations and other minor offenses, the lawsuit complaint noted. Black drivers made up 86 percent of police traffic stops in 2013, but were 63 percent of the city’s population. The city collected $2.6 million in fines, 21 percent of its budget and its second-largest revenue source.    

In a investigative report last month, National Public Radio noted how members of the same family were repeatedly targeted, fined, arrested and jailed in terrible conditions, including not being allowed to shower for two weeks and not being regularly fed.

“Just traffic tickets. No criminal act. Nothing,” Tonya DeBarry, 52, told NPR, recounting her experience. She was arrested while driving her four-year-old grandson in a relative’s car that had expired license plates. DeBarry, who lives on Social Security disability and food stamps, had unpaid tickets, prompting an arrest warrant. She was held for days in a moldy, blood-stained jail cell. “If you have the money, you would never go through that type of situation.”

Going After Racist System, But Not Brown’s Killer

The DOJ apparently reviewed more than 35,000 pages of police records of police records and conducted 100s of interviews, the Post said. What emerged was a traceable pattern of institutional racism that violated federal civil rights laws—because it shows the deliberate separate and unequal treatment under law.

In contrast, officer Darren Wilson’s shooting and killing of Michael Brown falls under a different set of legal standards and laws. To charge Wilson, the DOJ would have to prove that he was not acting in self-defense but intended to violate Brown’s rights. That is much harder than documenting the disproportionate targeting of non-whites by the Ferguson police for traffic violations and other minor infractions.

U.S. Attorney General Eric Holder, who is leaving office in coming weeks, alluded to this discrepancy in an interview with Politico last week, where he said the DOJ needed a “better backstop” to go after overly aggressive cops, because under current law they will not face charges if they claim they are acting in self-defense.

“I think some serious consideration needs to be given to the standard of proof that has to be met before federal involvement is appropriate, and that’s something that I am going to be talking about before I leave office,” Holder told Politico.

What Will DOJ Do About Ferguson?

The justice department, while not commenting publically yet about what it will do in court about Ferguson, is following easily identifiable steps that are almost certain to result in the Ferguson Police Department being placed under federal supervision.

During Holder’s six-plus years as AG, the department has investigated 20 police agencies across the country for abusive policing, or reopened older investigations, using a process known as a federal consent decree to impose reforms on those departments. In some cases, the departments reach a settlement with DOJ. In other cases, they fight in court.    

This same process has been unfolding in Ferguson since late summer. Brown was shot and killed on Aug. 9, 2014, immediately prompting local and national demonstrations that escalated when local St. Louis police agencies cracked down on protesters.   

On Sept. 3, Holder announced he was widening the DOJ investigation into possible civil rights abuses in Ferguson—expanding the inquiry beyond Wilson. By late September, St. Louis and Ferguson officials responded to widespread criticism that would consider creating civilian oversight boards for local police departments.

The DOJ sent representatives to the city that month, who began to convene a series of closed-to-the-press community meetings with city officials, police and residents. During the fall, four meetings were held, with some people writing to newspapers that many white participants were more sympathetic to the police than protesters.  

In a late October speech in Washington, Holder declared that “wholesale change” was needed in Ferguson, prompting Ferguson’s police chief to reply that he had not been asked to step down. Meanwhile, other national media reported that in the past decade a half-dozen other Ferguson officers have been sued for excessive force, prompting new speculation that there would still be a mix of federal and civil lawsuits from Brown’s killing and the crackdown on protesters.

In early November, the DOJ hosted a training session for area police commanders, which can be an element of the consent decrees—where retraining is required. Later that month, November, Holder issued new national guidelines for police facing confrontations. These developments were widely covered in the St. Louis press, which also covered ongoing protests by racial justice groups whose members were not involved in the closed-door DOJ meetings, local letters to the editor said.

On New Year’s Eve, protesters held a sit-in at the St. Louis Police Department building, demanding that cops who shoot and kill young men be fired, and that anyone who is shot should be given immediate medical care. Meanwhile, a new St. Louis county executive—the highest-ranking county politician—took office and promised changes. But the county prosecutor who did not pursue charges against Wilson was re-elected.

Then in mid-January, the DOJ leaked that it was unlikely the department would pursue charges against Wilson, even though it had not yet issued its final report. On Monday, a Times report based on another leak said the DOJ would go after the Ferguson Police Department for the racial bias in the traffic stops. On Tuesday, the Washington Post reported more details, based on leaks.

Justice Departent Precedent

Last summer, the DOJ reached a legal settlement with Newark, New Jersey, which put that city’s police under a consent decree specifying reforms to be adopted and overseen by a federal judge. In its announcement, the DOJ could just as easily have been talking about the race-based targeting and abusive policing Ferguson. Its statement said:

“The Justice Department found reasonable cause to believe that the NPD [Newark] has engaged in a pattern or practice of unconstitutional stops in violation of the Fourth Amendment. Specifically, NPD officers failed to articulate sufficient justification for nearly 75 percent of pedestrian stops. NPD officers also disproportionately stopped black people relative to their representation in Newark’s population…

“The Justice Department found cause to believe that the NPD engaged in a pattern or practice of the use of excessive force… Of the incidents reviewed as part of the Justice Department’s investigation, more than 20 percent of NPD officers reported use of force that appeared unreasonable.”

Meanwhile, Civil Suits Continue

The attorneys for Michael Brown’s family have stopped commenting in the press, saying there is too much speculation about federal and other lawsuits filed in lower courts. But any settlement by the Ferguson Police Department or city with the DOJ over civil rights violations, institutional racism and excessive force will create momentum for the other litigation that’s been filed.

The city was sued for $40 million for using excessive force on protesters. The police have been sued by civil rights groups for the traffic stops and creating a loxan debtors' prison. And even though Darren Wilson may not personally face charges from the DOJ or a grand jury, the Ferguson PD is vulnerable to lawsuits over training methods, specifically Wilson’s failure to follow them because he complained he didn’t like carrying a taser because of its weight—which prompted him to use his gun against Brown.

In other words, racial justice may be slow in coming to Ferguson, but it appears to be coming nonetheless. The Justice Department pending report and actions are likely to be the start of a long process of police reform and other settlements. But it is anybody’s guess how long it will take to unwind the racism in the St. Louis suburb.  

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