The Department of Justice released a scathing report on the Ferguson, Mo., police department, alleging systemic racial disenfranchisement and unconstitutional police behavior. The Ferguson department has been under national scrutiny for civil rights violations since the fatal shooting last summer of Michael Brown, an unarmed black teenager, by white police Officer Darren Wilson. In an interview with George Washington Today, Senior Associate Dean for Academic Affairs and Professor at the George Washington University Law School Christopher A. Bracey explained the details of the finding and what’s at stake.
Q: The Justice Department found that the Ferguson Police Department routinely engaged in a number of unconstitutional practices, including illegal stops and arrests. What does the Fourth Amendment require of arresting officers?
A: The Fourth Amendment protects individuals against unlawful searches and seizures. An officer must have what is called reasonable or “articulable” suspicion that a crime has occurred—what you might call a “hunch” based upon specific and articulable facts—in order to make a stop. An officer must have probable cause—a somewhat stronger suspicion, again grounded upon specific facts, that a crime has occurred—in order to make an arrest or secure a warrant for an arrest. The Department of Justice investigators found that Ferguson police officers often stopped, detained and arrested individuals under circumstances where there was little or no reason to think that there was any criminal activity afoot.
The excessive use of force by a police officer may also violate the Fourth Amendment. DOJ investigators identified a number of instances in which Ferguson police offers used excessive force when no force at all seemed to be required (for example, the unnecessary use of a Taser to “subdue” an observably compliant suspect). Investigators also found that the excessive use of force frequently occurred during a stop or arrest that itself was unlawful—a double violation of the Fourth Amendment, so to speak.
Q: The report states that law enforcement efforts are “focused on generating revenue”—officers were told to ramp up ticket collection to make up for tax shortfalls, for example. How does this focus violate the Constitution?
A: Every jurisdiction derives revenue from ticket collection. The problem in Ferguson is one of selective enforcement. DOJ investigators found that African Americans were disproportionately targeted and ticketed for petty offenses. For instance, African Americans comprised 92 percent of persons charged with “Peace Disturbance,” 94 percent of persons charged with “Failure to Comply” and 95 percent of persons charged with “Manner of Walking in Roadway.” Racially discriminatory policing of this sort is arguably a violation of the 14th Amendment as well as federal and state civil rights laws. The revelation of Ferguson’s activities in this regard are also a reminder of the economic impact that racial discrimination can have on minorities: African American residents, already disproportionately poor, were further financially burdened by unnecessary fines and court fees.
Q: Law enforcement practices were found to be “shaped and perpetuated by racial bias” in violation of federal law. What is the standard for constitutionality in racial bias?
A: The 14th Amendment prohibits the government from discriminating on the basis of race unless its use of race is narrowly tailored to meet a compelling government objective. Courts will scrutinize the use of race very closely. In cases where the use of race expressly disfavors a racial minority, the court will almost always conclude that a constitutional violation has occurred. The problem is that, in most cases, it is far from clear whether the person accused of racial discrimination was “motivated” to take action for purposes of engaging in racial discrimination. This is what DOJ investigators concluded with respect to Ferguson police Officer Darren Wilson. By contrast, federal civil rights laws impose an even stricter standard, where a pattern or practice of racial bias or disparity in law enforcement alone may prove to be a sufficient basis upon which to impose civil liability.
Q: Among the behaviors exhibited by police was excessive use of force—“Supervisors seem to believe that any level of resistance justifies any level of force”—which was found to be constitutionally unjustifiable. Yet, the Justice Department cleared Officer Wilson, who shot unarmed teenager Michael Brown, in their separate civil rights probe. How can those two findings be reconciled?
A: Investigators found that the evidence gathered in connection with the grand jury investigation corroborated Darren Wilson’s account: that Michael Brown attempted to grab his gun and subsequently moved toward him in a menacing matter. Officer Wilson perceived Michael Brown to pose a threat sufficient to warrant the use of deadly force. In order to successfully prosecute Officer Wilson, the DOJ would have had to prove that Officer Wilson shot Michael Brown with the purpose and intent to violate the law. DOJ investigators must have believed that the evidence in this case would not support this particular charge against Darren Wilson, but that there were circumstances involving other officers and other victims that may very well support charges against those other officers or perhaps against the Ferguson police department more generally.
Q: The DOJ provided a list of improvements and changes that need to be made in Ferguson’s Police Department and court system. What are the next steps for the Ferguson municipal government and police? How will those improvements be carried out?
A: At this point, the ball appears to be squarely in the hands of Ferguson government officials. They can choose to adopt proactive measures on their own, negotiate a set of arrangements with DOJ or risk being sued.