After Ferguson Attempts to Unilaterally Modify its Consent Decree with the U.S. Department of Justice, LDF Advocates Taking All Legal Steps Necessary to Ensure Constitutional Policing and Court Practices in Ferguson

After last night’s Ferguson City Council hearing, during which Ferguson’s mayor and city council members made all-too-familiar and unverified claims that implementation of its proposed police and court reform consent decree would be too costly, the city voted to reject the consent decree and attach new, unilateral conditions to an agreement it had already spent seven months negotiating with the U.S. Department of Justice (DOJ). The NAACP Legal Defense and Educational Fund, Inc. (LDF) is deeply disappointed by the city’s actions, which thwart much-needed progress following the 2014 police shooting of Michael Brown, an unarmed African-American teenager. 

“Once again, Ferguson has chosen the path of greatest resistance in addressing urgently needed reforms to the discriminatory law enforcement practices that the DOJ, the Ferguson community, and press reports have so thoroughly exposed since the killing of Michael Brown 18 months ago,” said Sherrilyn Ifill, LDF’s President and Director-Counsel.  

Last night, Principal Deputy Assistant Attorney General Vanita Gupta, head of the DOJ’s Civil Rights Division, remarked that the city’s actions have created “an unnecessary delay in the essential work to bring constitutional policing to the city, and marks an unfortunate outcome for concerned community members and Ferguson police officers.”

Among the seven new conditions Ferguson attempted to impose on the consent decree last night were stipulations reneging on commitments it had already agreed to involving: police and city employee salaries, jail staffing levels, implementation deadlines, and a cap on the fees the city would pay to a monitor to ensure compliance with the agreement. Most disturbingly, the town included a new provision that the terms of the consent decree would not apply to any “other governmental entities or agencies who, in the future, take over services or operations currently being provided by the City of Ferguson.”

“We are very clear that the city council’s adoption of a provision that would prevent the consent decree’s application to successor agencies is not acceptable. It constitutes a powerful threat to sustained reform,” said Ifill. “Should Ferguson decide next year to dissolve its police department, for example, and merge its police force with that of St. Louis County, the carefully negotiated measures designed to ensure the promotion of fair law enforcement practices in Ferguson–which the DOJ and the city have already agreed to  apply to its police and courts–would disappear into thin air. This is not what the Ferguson community has worked so hard to achieve through protests, community hearings, and other sustained activism over the past year and a half.”

The hearing process and vote undertaken by Ferguson differs from the well-established procedures followed by other towns and jurisdictions across the country that have negotiated consent decrees with the DOJ. In most cases, DOJ and the local jurisdiction sign the negotiated decree which is then submitted to federal court. The court may opt to conduct fairness hearings at which community members can testify and propose revisions to the decree. Given last night’s vote, it appears that the city has attempted to use its own “community hearings” as a vehicle to revise provisions of the consent decree which they had already negotiated with the DOJ, even though some Ferguson residents voiced opposition to these unilateral changes at the city’s February 9 hearing.

“We can only surmise that this path was undertaken with the deliberate intention of delaying or undermining the road to inevitable change in its policing and municipal court practices. In fact, last summer, Ferguson officials were already indicating to the media their unwillingness to address the long list of legal violations the DOJ uncovered in its investigative report,” said Carlton Mayers II, an LDF attorney who attended some of the Ferguson hearings.

Monique Dixon, LDF’s Deputy Policy Director and Senior Counsel who leads LDF’s policing reform initiative, detailed several additional concerns about how the city has managed this process. She noted that, “Ferguson community members complained that the city posted the original 130-page consent decree on its website one week before opening hearings while, last night, community members had scarcely more than a few minutes to review the city’s new stipulations for the proposed consent decree before the city council’s vote.” 

If Ferguson chooses to reject the negotiated consent decree, it faces the threat of a DOJ lawsuit.  It is highly unlikely that the city would prevail in such litigation, and very likely that Ferguson will expend enormous sums to litigate the case. Of the 23 “pattern and practice” investigations the DOJ has opened during the Obama Administration, only four police departments have chosen to litigate. The DOJ has prevailed in the majority of cases that went to trial.

“In the words of a Ferguson resident who testified at last night’s hearing: ‘It is time to prioritize justice no matter how much it costs because justice is priceless,’” said Mayers.  “From the dawn of the civil rights era, as African Americans demanded their long-denied constitutional rights, many states and cities tried to claim these rights were too expensive to enforce,” added Dixon. “We look forward to decisive action from the DOJ to ensure unbiased and responsible policing in Ferguson despite the city’s highly regrettable resistance to protecting its own African-American residents.”

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Founded in 1940, the NAACP Legal Defense and Educational Fund, Inc. (LDF) is the nation’s first civil and human rights law organization and has been completely separate from the National Association for the Advancement of Colored People (NAACP) since 1957—although LDF was originally founded by the NAACP and shares its commitment to equal rights. In media attributions, please refer to us as the NAACP Legal Defense Fund or LDF.