March 7, 2015

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What To Do With the DOJ Report on Ferguson

The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd."

–Alexis de Tocqueville, Democracy in America

Because of business travel and meetings, I postponed reading the Department of Justice report on Ferguson until. late, late last night. And I didn’t read all of it. I tried to focus on the parts we can do something about or learn from.

There are many. And there are many opportunities for distraction. Those distractions will interest some radio talkers, for sure, but distractions block action.

The Big Distraction

Let’s get this out of the way first. I’m not surprised that Eric Holder’s DOJ puts such an emphasis on race. Neither do I dismiss the racial aspects of the report. I think it’s reasonable to assume that at least some problems in Ferguson owe to attitudes toward people of another race.

Some may use the report’s racial overtones to discredit the entire document, though, and that would be a mistake. I’ve edited out references to race in several of the quotes. Race  might matter to Holder, but not to me. Abuse is abuse no matter the victim’s color.

The meat of the story here is corruption driven by government greed, as my friend Christina Botteri (@christinakb) pointed out. The people perpetrating the corruption are not the police, but the city officials who direct police activity.

Eric Holder’s name can drive conservatives and libertarians to distraction. Please read the report, or a summary of the report, open to the possibility that some of the findings are true. Then consider the corroborating evidence we have uncovered in our Municipal Courts project.

Reading the report with an open mind and in light of evidence we already knew about police and court practices in many Missouri cities, we realize that Eric Holder’s last major work is a gift to the liberty lovers of America. Take it as such and act.

Taxation By Citation

The first and clearest finding in the report is no surprise to anyone who reads this blog. Ferguson treats citizens like the government’s ATM machines. From the report:

City officials routinely urge Chief Jackson to generate more revenue through enforcement. In March 2010, for instance, the City Finance Director wrote to Chief Jackson that “unless ticket writing ramps up significantly before the end of the year, it will be hard to significantly raise collections next year. . . . Given that we are looking at a substantial sales tax shortfall, it’s not an insignificant issue.” Similarly, in March 2013, the Finance Director wrote to the City Manager: “Court fees are anticipated to rise about 7.5%. I did ask the Chief if he thought the PD could deliver 10% increase. He indicated they could try.”

Public safety, crime prevention, and investigations–you know, the stuff police are supposed to do–rank below revenue generation in Ferguson:

Patrol assignments and schedules are geared toward aggressive enforcement of Ferguson’s municipal code, with insufficient thought given to whether enforcement strategies promote public safety or unnecessarily undermine community trust and cooperation. Officer evaluations and promotions depend to an inordinate degree on “productivity,” meaning the number of citations issued. Partly as a consequence of City and FPD priorities, many officers appear to see some residents . . . less as constituents to be protected than as potential offenders and sources of revenue.

Once upon a time when I was about to enter the St. Louis Police Academy, I spent some time with a senior detective about to retire. He told me, “there’s three kinds of people in the world: perps, victims, and cops.”

I felt sorry for him. At the time, I hoped I never developed such cynicism. I thought I understood how such an attitude could develop working with crime all one’s life. But I hoped to avoid it. (I got a job offer while waiting to class up and never became a police officer.)

The daily pressure to write  more tickets and arrest more people on ordinance violations seems to accelerate a cynical attitude. My friend Dan, who testified before Senator Eric Schmitt’s committee on the Mack’s Creek law, told me a friend of his, and former Ferguson police officer, turns down numerous offers to return to law enforcement because of police and civilian leaders who twist good cops into “ticket jockeys.”

Revenue Needs Lead to Civil Rights Abuses

The report describes a familiar tactic police use to create a situation that leads to more fines and jail time: abuse of authority.

This culture within FPD influences officer activities in all areas of policing, beyond just ticketing. Officers expect and demand compliance even when they lack legal authority. They are inclined to interpret the exercise of free-speech rights as unlawful disobedience, innocent movements as physical threats, indications of mental or physical illness as belligerence. Police supervisors and leadership do too little to ensure that officers act in accordance with law and policy, and rarely respond meaningfully to civilian complaints of officer misconduct. The result is a pattern of stops without reasonable suspicion and arrests without probable cause in violation of the Fourth Amendment; infringement on free expression, as well as retaliation for protected expression, in violation of the First Amendment; and excessive force in violation of the Fourth Amendment.

I am tempted to say, “but Holder’s DOJ violates the Fourth Amendment all the time.” And “what about the NSA?”

True. This report on Ferguson raises hypocrisy to new heights. But just because the authors of the report violate the law does not mean the report is wrong. It just means we have more work to do.

The report describes how this abuse of authority works:

For example, in the summer of 2012, a . . . man sat in his car cooling off after playing basketball in a Ferguson public park. An officer pulled up behind the man’s car, blocking him in, and demanded the man’s Social Security number and identification. Without any cause, the officer accused the man of being a pedophile, referring to the presence of children in the park, and ordered the man out of his car for a pat-down, although the officer had no reason to believe the man was armed. The officer also asked to search the man’s car. The man objected, citing his constitutional rights. In response, the officer arrested the man, reportedly at gunpoint, charging him with eight violations of Ferguson’s municipal code. One charge, Making a False Declaration, was for initially providing the short form of his first name (e.g., “Mike” instead of “Michael”), and an address which, although legitimate, was different from the one on his driver’s license. Another charge was for not wearing a seat belt, even though he was seated in a parked car.

That story is only one example that fits a pattern easy to identify. If people won’t commit a minor municipal code violation, police in towns like Ferguson will bully people into committing something. It seems that I could be arrested for introducing myself to a cop as “Bill Hennessy." What if I gave my post office address of Pacific instead of the actual location of my house, Wildwood? Would that constitute Making a False Declaration?

And, since when was a false declaration a crime? Why isn’t the Ferguson PD arresting the President for declaring, “If you like your insurance, you can keep it?”

Let’s move on to the Ferguson Municipal Court.

The Kangaroo Court and Its Tax-Owing Judge

The DOJ report addresses directly a common problem with municipal courts. They don’t even pretend to dispense justice. They operate only to extract as much money as possible from anyone unlucky enough to wander through their doors. Ferguson’s court is like some backwater Mexican jailhouse.

The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests.

Perhaps the perfect description of a problem in dozens of municipal courts around St. Louis County.

Now, some have criticized our muni courts project, asking “don’t you believe in law and order, Bill?”

Yes, I do. And I believe the first law is the law that restricts government. Which is why government officials who break the law should face stronger penalties and harsher rebukes than citizens who commit similar violations.

Most strikingly, the court issues municipal arrest warrants not on the basis of public safety needs, but rather as a routine response to missed court appearances and required fine payments. In 2013 alone, the court issued over 9,000 warrants on cases stemming in large part from minor violations such as parking infractions, traffic tickets, or housing code violations. Jail time would be considered far too harsh a penalty for the great majority of these code violations, yet Ferguson’s municipal court routinely issues warrants for people to be arrested and incarcerated for failing to timely pay related fines and fees.

Just days after the DOJ released its report on Ferguson, The Guardian reported that the judge of that court, Ronald Brockmeyer, owes a lot of taxes, himself:

The judge in Ferguson, Missouri, who is accused of fixing traffic tickets for himself and colleagues while inflicting a punishing regime of fines and fees on the city’s residents, also owes more than $170,000 in unpaid taxes.

How low of a lowlife is Brockmeyer?

Investigators found Brockmeyer had boasted of creating a range of new court fees, “many of which are widely considered abusive and may be unlawful”. A city councilman opposing the judge’s reappointment was warned “switching judges would/could lead to loss of revenue”.

Brockmeyer is part of the revolving door of municipal court abusers. He’s judge in Ferguson and prosecutor elsewhere, teaching other towns how to extract more blood from their citizen-turnips. From The Guardian:

Brockmeyer, who has been Ferguson’s municipal court judge for 12 years, serves simultaneously as a prosecutor in two nearby cities and as a private attorney. Legal experts said his potentially conflicting interests illustrate a serious problem in the region’s judicial system. Brockmeyer, who reportedly earns $600 per shift as a prosecutor, said last year his dual role benefited defendants. “I see both sides of it,” he said. “I think it’s even better.”

Maybe Brockmeyer needs those ‘abusive and unlawful” fees and fines he’s so proud of to pay his back taxes.

Brockmeyer symbolizes the rentier model of Ferguson and similar cities in St. Louis County. “Rentier” refers to the medieval practice of land barons of demanding large fees simply for crossing their land. The land itself was granted to them by the king–the barons did not buy it. And every inch of some countries were controlled by some baron. Public roads were subject to private tolls. But the barons added no value. They did not improve the roads or offer protection to travelers. They only took. “Rentier.”

The court imposes these severe penalties for missed appearances and payments even as several of the court’s practices create unnecessary barriers to resolving a municipal violation. The court often fails to provide clear and accurate information regarding a person’s charges or court obligations.

We learned that from Dan Hyatt and Lee Presser. Both white, upper-middle-class. Dan and Lee showed that Breckenridge Hills and Bel-Ridge courts fail to comply with Missouri Supreme Court rules on the conduct of court, the preservation of evidence, and the recording of proceedings.

The Snare of Muni Courts

Getting tangled up in the muni court system can lead to a nightmarish carnival of mayhem for the poor.

We spoke, for example, with an African-American woman who has a still-pending case stemming from 2007, when, on a single occasion, she parked her car illegally. She received two citations and a $151 fine, plus fees. The woman, who experienced financial difficulties and periods of homelessness over several years, was charged with seven Failure to Appear offenses for missing court dates or fine payments on her parking tickets between 2007 and 2010. For each Failure to Appear, the court issued an arrest warrant and imposed new fines and fees. From 2007 to 2014, the woman was arrested twice, spent six days in jail, and paid $550 to the court for the events stemming from this single instance of illegal parking. Court records show that she twice attempted to make partial payments of $25 and $50, but the court returned those payments, refusing to accept anything less than payment in full. One of those payments was later accepted, but only after the court’s letter rejecting payment by money order was returned as undeliverable. This woman is now making regular payments on the fine. As of December 2014, over seven years later, despite initially owing a $151 fine and having already paid $550, she still owed $541.

It’s easy to say, “she should have gone to court.” You’d be right. But going to court would not have helped if she didn’t have the money to pay.

Further, why is it okay for government–our creation and our servant–to abuse its master? Why can Judge Brockmeyer invent “abusive and unlawful fines” to levy on poor citizens, but the citizen goes to jail and if she can’t or won’t pay those abusive and unlawful fines?

It’s backwards.

Ferguson Has Two Kinds of People

That old cop who told me of three kinds of people was wrong. In cities like Ferguson, where revenue generation trumps everything else, police are victims, too. That leaves two kinds of people: perps and victims.

What’s most disturbing about the reality of cities like Ferguson, Missouri, is the human suffering the system creates. Citizens are not the only victims. The police are victims, too. Darren Wilson was a victim of the system that built walls of hostility and distrust between the police and the people they were supposed to serve and protect.

No one goes to the police academy hoping to write lots of tickets that turn into bench warrants. People become cops because they know civil society needs brave and patient officers who show up at bad situations, keep their heads about them, and settle everything down before figuring out what really happened and writing a report for judges and juries to weigh.

But municipal greed turns these men and women into Sheriffs of Nottingham, finding feeble excuses to extract more tax dollars from citizens for the benefit of a rentier government scheme. And the judges are the perps.

Take Action

After reading the DOJ report, I feel compelled to thank Senator Eric Schmitt and his co-sponsors again. Also, thanks to the people who testified for Senator Schmitt’s bill that reduced the cap on traffic fines to 10 percent of a city’s revenue. But there’s more work to be done.

First, that Mack’s Creek bill that passed the Missouri Senate 34 to 0 needs to pass the House. I spoke to State Representative Shamed Dogan who said he expects the bill to pass, but not as surely as it did in the Senate. Write your Missouri State Rep and ask him or her to support SB-5.

While Senator Schmitt’s bill was a great start, it’s not enough. Auditor Tom Schweich began the process of enforcing the Mack’s Creek law, but he is not around to complete that work. You can email the interim auditor, John Watson, and ask him to continue Schweich’s Municipal Court project. His email is

Finally, we would like to see criminal penalties for mayors, judges, comptrollers, and city managers who impose unlawful fines and fees or try to violate the Mack’s Creek law. Right now, the law only allows the state to abolish abusive muni courts. But guys like Judge Brockmeyer will just migrate to another town and set up shop. As I said, government officials who break the law should face stiffer penalties than citizens.

Free People, Not Sheep

As I wrote back in September, the municipal court problem is a liberty issue. Blindly accepting whatever a town’s police and courts dish out softens people. It prepares us to accept any abuse, any civil rights restriction, the government wants to impose. In the words of 19th century French aristocrat Alexis de Tocqueville, these courts and police practices reduce us to “a flock of timid and industrious animals, of which the government is the shepherd.”

Let’s stop these abuses now.