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 a**essing 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 Ma**. 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 a**essing 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 an*lysis 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 m**ms.
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 pa** 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 pa**ed.
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 a**isting 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, pa**im (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 an*lysis 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 a**ess 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 gla**es, 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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