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Ferguson releases draft of federal consent decree

Ferguson courthouse
File photo | Bill Greenblatt | UPI

Updated with details and comments from Rep. William Lacy Clay. — The city of Ferguson and the U.S. Department of Justice are approaching agreement on how to deal with the civil rights violations of the city's police departments and municipal courts.

Ferguson officials on Wednesday released a draft version of a consent decree. The city will accept written comments through Feb. 9, and at three City Council meetings. It must still be approved by the City Council and a federal judge — the agreement would end after the city completely complies with all agreement requirements for two full years.

The full document of the draft consent decree is below. See something interesting? Tell us

"As in all negotiations, neither side received everything that they requested, and both sides made concessions in order to reach an agreement," the city said in a statement. "The City representatives worked very hard to reach an agreement with the Department of Justice, and this proposed agreement represents the best agreement that the City's representatives were able to obtain for the citizens of Ferguson."

The public meetings are scheduled for:

  • 7 p.m., Tuesday, Feb. 2, Ferguson City Hall
  • 10 a.m., Saturday, Feb. 6, Ferguson Community Center
  • 7 p.m. Tuesday, Feb. 9, Ferguson City Hall

In a letter to the city, Vanita Gupta, the head of the Civil Rights Division, expressed her appreciation to the Ferguson negotiating team, calling its members "thoughtful, creative and resolute in arguing for terms that it believed necessary to address the City's interests, including its interests in effective policing, and ensuring fair and lawful treatment of all people living in, working in, or passing through Ferguson."

Gupta said in the letter she remained hopeful that the City Council would approve the consent decree by Feb. 9 to avoid "contested litigation, given that this would delay implementation of much-needed police and court reform, and divert substantial resources away from the reform effort."

Background and control

The draft consent decree comes almost a year after federal investigators found the city’s police and courts unconstitutionally targeted black residents.

The investigation was prompted by civil unrest following the shooting death of Michael Brown by former Ferguson police officer Darren Wilson. 

Sticking points in the negotiations had included whether residents would get to weigh in on the agreement and the cost of monitoring. But in an emailed statement, city officials said entering into the agreement will save on litigation costs.

The draft consent decree allows Ferguson to retain control of its municipal court and police department, a goal of mayor James Knowles III. But they’ll look much different if the decree is accepted.

Using police solely to generate revenue for the city is explicitly outlawed. The Justice Department is requiring Ferguson to overhaul its municipal code, and give its police policies and training a thorough review. Its use-of-force policy will also undergo drastic revisions.

Monitor and cost

According to the agreement, both Ferguson and the Justice Department would have to jointly select an “independent monitor,” a team of policing and civil rights experts. That team would be responsible for assessing whether the terms of the consent decree agreement had been met.  The monitor will be appointed for five years, but its term could end early if the city fully meets all expectations. If the city does not, the monitoring team’s term could be extended.

The monitoring team would make recommendations to help Ferguson meet the agreement requirements. It would also conduct community surveys, assess outcomes of policy changes and whether police-community relations are improving, and issue public reports on its assessments.

The monitor may conduct visits and assessments without previously notifying the city.

The city will also reassign a current employee to become a Consent Decree Coordinator to serve as a liaison between all parties involved and provide the monitoring team with all necessary documents.

The consent decree requires the city to provide the police department the resources required to comply. In an email, spokesman Jeff Small said the city is currently conducting an analysis to determine how much that would cost. “We would say the cost could be significant if staff will need to be added considering the current budget shortfall,” he said.

Ferguson has already paid attorneys at Winston & Strawn LLP more than $100,000 between March and November 2015 to negotiate with the DOJ. The Chicago-based law firm is owed another $10,000 for work done in December.

Use of force policies

Use of force is a major part of the proposed consent decree. The agreement said force should only be used when a person displays “aggressive resistance” that creates a reasonable belief that death or serious injury is imminent.

The proposal would require police to emphasize de-escalation techniques and warnings before using force. It also urges officers to consider whether a mental health crisis, language barrier or drug use is contributing to an individual’s non-compliance with officer directives.

If force is used, officers would have to give medical assistance immediately and call a supervisor. The agreement also states police cannot use force against people simply observing or recording officers. The decree strongly supports First Amendment rights, including the right to peacefully protest, and provides guidance to officers in securing those incidents.

The Justice Department report last March heavily criticized Ferguson’s use of police dogs, saying Ferguson officers used them inappropriately and more frequently against black residents. The agreement indicates canines should be used mostly as a locating tool and rarely used for force.

The decree would establish a force review board and create a comprehensive process for reporting and investigating those incidents.

All Ferguson patrol officers and jail personnel will be outfitted with body cameras, and all patrol cars with dash camera, within 180 days of the consent decree being approved. Recordings will be preserved for 90 days if they are not needed for investigations and for two years if the information is needed for evidence. The footage will be publicly available under the state Sunshine Law.

The Ferguson city jail would have to use surveillance video in all areas where prisoners are kept.

Municipal code changes

On the municipal court side, the city will drop all cases issued before Jan 1, 2014, unless the prosecution finds good cause to go forward. All remaining fines and fees for failure-to-appear charges will be eliminated; a step the city already began. And defendants who have already paid more than their initial fine or fee will not be required to make any additional payments.

The city will also have to update its website to allow for online late payments and installments, determine a defendant’s ability to pay, and offer community service as an alternative. No one will be held in jail simply because they cannot pay their bond.

The proposed consent decree clearly states that no police department program strategy or tactic will be instituted just to generate revenue. One of the key findings of the Justice Department report was that Ferguson’s municipal court did just that.

But Ferguson officials said the city had been working on making changes to its municipal code since the August 2014 unrest. It had gotten rid of several fees, fines and ordinances, such as being jailed for failure to pay.

Those adjustments are included in the consent decree proposal, but the city would also make additional ordinance changes. Clearly banned are citation or arrest quotas of any kind.

Community policing

The agreement also gives clear guidelines as to how Ferguson police officers are to interact with civilians when they are investigating a crime.

Several measures involve implementing a community-policing model, something Ferguson officials have said they have pursued in the months following the protests.

According to the more-than-100-page draft, all Ferguson police officers would be required to participate in a series of meetings with community members, particularly those who have previously “not had strong or positive relationships” with the department.

The proposal also would establish police-community-engagement and neighborhood policing plans to encourage better officer-resident communication. Officers would add bike and foot patrols to their work in their designated neighborhoods. The police department would also change its shift schedules to better fit this model.

The agreement would create several groups and committees to improve interactions between police, youth, and those who live in apartments, and establishes a community mediation program.

Another part spells out the need to support the physical and mental health of police officers.

Police training

The consent decree would increase training for officers and recruits. A training committee including community members would help develop new policies with input from officers.

“Comprehensive in-service training” would be required for officers and department employees, amounting to at least 50 hours each year. In the first two years of the consent decree agreement, officers would be required to get 65 hours of training.

All new police recruits would have to receive at least 900 hours of basic training. New policies and procedures would be reviewed on an annual basis, and the training plan updated every 18 months.

An aggressive recruitment plan, particularly to attract minority candidates, would also be implemented.

Anti-bias training

Under the agreement, the city would have to provide clear policy and training that would work against stereotypes or bias.

These would go beyond racial bias. Training is specifically recommended for dealing with people whose English skills are limited and for victims of domestic violence and sexual assault.

The city would also take signs of discriminatory policing or bias into account when evaluating performance, hiring, and promoting officers.

It would also be required to regularly review how it gathers and uses racial profiling data and how its police and court programs are working. Much of this assessment would be done by a monitoring team, hired by the city with the approval of the Justice Department.

U.S. Rep. William Lacy Clay, the Democrat whose district includes Ferguson, called the proposed settlement "a victory for thousands of innocents citizens who have been repeatedly victimized by racially biased, predatory and unconstitutional practices in Ferguson for decades."

Follow Rachel Lippmann on Twitter: @rlippmann

Rachel is the justice correspondent at St. Louis Public Radio.