The killing of Michael Brown by a Ferguson, Missouri, police officer on August 9, 2014, shook the entire St. Louis legal community. Two professors at Saint Louis University School of Law (SLU Law) and a recent graduate played a large role in challenging that legal establishment, which counted many SLU Law alumni among its judges, public officials, and private bar members. Through litigation and public advocacy in the immediate aftermath of the Brown killing, three individuals spearheaded the pursuit of public justice: Professor John Ammann, who served for 22 years as supervisor of the Litigation Clinic at SLU Law; Professor Brendan Roediger, who joined him at the clinic in 2009; and Thomas Harvey, a 2009 SLU Law graduate who cofounded ArchCity Defenders.
For years before the Brown killing, Professors Ammann and Roediger had been working pro bono with SLU Law students in the municipal courts of St. Louis County. The clinic represented individual clients with outstanding arrest warrants for failure to appear or to pay a host of court fines and fees. Similarly, ArchCity Defenders, founded in 2009, had represented thousands of individual indigent clients in the municipal courts and had identified systemic abuses there. This individual representation generally involved asserting valid defenses or mitigating circumstances that could reduce or eliminate fines and fees, and otherwise “slugging it out” in the municipal courts of St. Louis County. The vast majority of the poor people haled into these courts were African American citizens, in numbers that were grossly disproportionate to their numbers in the municipalities in which they lived.
The SLU Law Clinic and ArchCity Defenders ventured beyond individual representation in the spring of 2014 to mount the first systemic challenge to unlawful practices in St. Louis County municipal courts. The rules in many of those municipal courts prohibited anyone who was not counsel of record or a defendant on the docket from attending “public” sessions of the court. SLU Law and ArchCity Defenders sent a letter requesting a meeting with St. Louis County Chief Administrative Judge Maura McShane and various representatives of the St. Louis County municipal courts. After that meeting, Judge McShane sent a letter to every municipal judge and city attorney in St. Louis County, advising that a “substantial number of our municipal courts . . . limit seating only to defendants and defendants’ attorneys” and that such a practice was “a clear violation of the Missouri Constitution.” Judge McShane enclosed a proposed municipal court operating order with her letter and recommended that every municipal judge enter such an order. She warned that if the municipal courts continued the unconstitutional practice, litigation would likely follow. Most, but not all, of the offending municipal courts in St. Louis County then ended the practice of closed courts.
In just a few months, the municipal courts of St. Louis County would become the subject of intense national scrutiny as glaring examples of debtors’ prisons. Thousands of poor people, almost all of whom were unrepresented by counsel, were jailed by St. Louis County municipal judges for failure to pay a host of fees and fines, many of them illegal on their face. Almost without exception, these jailing orders were entered without inquiry into the individual’s ability to pay the fees and fines. Such an inquiry has been constitutionally required for over 30 years, since the U.S. Supreme Court so eloquently stated in Bearden v. Georgia, 461 U.S. 660, 667–68 (1983), “if the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it.”
Apartheid in St. Louis
The challenges mounted against the entire legal system in St. Louis cannot be understood without an understanding of St. Louis’s history of racial apartheid in the last half of the 20th century, which is meticulously documented in Colin Gordon’s remarkable 2008 book, Mapping Decline: St. Louis and the Fate of the American City. In Mapping Decline, Gordon makes it abundantly clear that St. Louis’s zoning practices were “designed to sort the metropolis not just by income or family status but by race as well.” Id. at 145.
One of the nation’s leading planning firms, Harland Bartholomew and Associates, did almost all of the substantive planning and zoning in St. Louis and left behind at Washington University an expansive documentary and cartographic record. Moreover, the Missouri State Archives maintained extensive case and evidentiary records of key land use cases. Employing the visual and explanatory power of computer-assisted mapping, and using census and archival data, Gordon masterfully and exhaustively depicted a massive and successful effort by St. Louis real estate agents and business and governmental leaders to create, preserve, and maintain a society of racial apartheid.
The resulting scholarly work is both graphic and compelling. Gordon leaves little question that St. Louis deserves to be ranked as one of only a handful of “hypersegregated” metropolitan areas in the nation and that this result was “a direct consequence of public policy, not an unfortunate social ill that persisted despite public policy.” Id. at 31.
In St. Louis County, “zoning proceeded alongside development and was instrumental in shaping patterns of residential use.” Id. at 129. It is important to note that zoning authority rested in the hands of individual municipal governments (numbering 35 in 1940 and 95 by 1960). County municipalities used incorporation and annexation “to protect private development patterns, and zoning (or rezoning) to control the class and race of local occupants.” Id. at 152.
Gordon could not be clearer:
The intent and the effect of local public policy, in St. Louis and its suburbs, were to tilt the playing field dramatically in favor of those who were winning. The economic disadvantages suffered by African Americans . . . eroded the legitimacy of even modest efforts at redistribution or redress, as inner-city poverty was willfully misdiagnosed as something African Americans had done to themselves.
Id. at 13.
Thomas Harvey, Michael-John Voss, and John McAnnar came up with the plan for ArchCity Defenders while enrolled in the legal clinics at SLU Law in 2009. Harvey worked in Professor Susan McGraugh’s Criminal Defense Clinic, McAnnar worked in Professor Ammann’s Consumer Debt Clinic, and Voss was an extern doing housing law. They recognized that their clients needed each other’s legal services and, most of all, they needed social work to help obtain housing, jobs, and treatment. In an ideal world, these legal and social services all would be available under one roof. Finding no such organizations in St. Louis, Harvey talked to Robin Steinberg at the Bronx Defenders in New York about holistic legal advocacy and started ArchCity after graduation.
It soon became apparent to Harvey that impoverished people had a problem that no one in the legal community was taking seriously—the debtors’ prisons in the municipalities of St. Louis County to which courts routinely sent people who could not pay the huge fines and fees they assessed without any inquiry whatever concerning each individual’s ability to pay.
While this was news to Harvey and his ArchCity colleagues, it was an age-old story for their clients. From the first day they talked to a person with a case in municipal court, they were told, “This isn’t about public safety. I was arrested because I am black. They locked me up because I am poor. And nobody does anything about it because when you are black and poor, nobody listens to you.” The ArchCity Defenders listened. They recognized there was a systemic problem but were not sure how to approach it, especially as an all-volunteer organization. Professor Eric Miller of SLU Law, who sat on ArchCity’s board, proposed a trip to visit nonprofits in the South that had been working on poverty and racial justice for decades. The ArchCity Defenders met with and learned from attorneys at the Southern Poverty Law Center, the Georgia Justice Project, and Alabama Appleseed. Then Sara Totonchi and Ateeyah Hollie at the Southern Center for Human Rights in Atlanta, Georgia, told them about their court-watching program in the Georgia courts. The Southern Center for Human Rights worked with law students and documented in a white paper unconstitutional practices in those courts, which led to successful systemic litigation. Harvey realized after the trip to the South that a critical piece of a systemic challenge to the St. Louis municipal courts would be production and public distribution of a study documenting the abuses his clients had described for years.
Harvey began a court-watching project with students from Washington University and Saint Louis University in roughly half of the region’s 81 municipal courts, including Ferguson’s. On August 9, 2014, when Michael Brown was killed, Harvey’s fact-finding on this project was mostly complete, and he had a rough draft of a white paper and the bones of litigation around the right to counsel and debtors’ prisons.
The national media had descended upon St. Louis. The Department of Justice announced that it would conduct an investigation into Brown’s death. Harvey immediately saw the opportunity, worked feverishly to finish the white paper, and on August 12, 2014, posted the white paper to the ArchCity Defenders website, where it quickly became the subject of a major story in the Washington Post. The Justice Department soon thereafter announced that it would investigate not only Brown’s death but also the practices of the municipal government in Ferguson in terms of its relationships with its citizens, particularly its African American citizens, including the municipal court and the police department.
A Staggering Amount of Litigation
In the year that followed Brown’s death, the SLU Law Clinic and ArchCity Defenders worked together with a number of other law firms to file a series of class actions and other impact litigation against St. Louis County municipalities and other governmental units. They included:
- Federal class actions against the City of Ferguson and the City of Jennings, challenging the debtors’ prisons run by those two municipalities. The lawsuits asserted that impoverished people in the two municipalities were jailed because they were unable to pay debts owed for traffic tickets or other minor offenses, without any judicial inquiry into their ability to pay those debts. Alec Karakatsanis of Equal Justice Under Law in Washington, D.C., had read about Harvey’s white paper in the Washington Post and reached out to see if they could work together to bring the litigation. ArchCity Defenders and the SLU Law Clinic professors co-counseled with Karakatsanis in both groundbreaking lawsuits.
- A class action against the City of Bel-Ridge challenging the failure of that municipality to timely file with the state auditor a report required by state statute. The law limited the revenues that a municipality could receive from traffic fines and fees to 30 percent of a municipality’s total revenues in any one year. The statutory penalty for a municipality’s failure to timely file the report was its municipal court’s immediate loss of jurisdiction. The claim has survived a motion to dismiss and is awaiting determination of class certification.
- Twelve class actions against St. Louis City and St. Louis County municipalities that imposed illegal fines and fees, such as a fee to recall a warrant, not authorized by state statute. ArchCity Defenders and the SLU Law Clinic professors were joined in this litigation by John Campbell, Alicia Campbell, and Erich Vieth, all three graduates of SLU Law who had formed Campbell Law.
- A successful preliminary injunction action against the Metropolitan Police Department of the City of St. Louis, the St. Louis County Police Department, and the Missouri Highway Patrol for the widespread use of chemical agents against peaceful protesters in the aftermath of the grand jury verdict finding no probable cause to prosecute the police officer who killed Michael Brown. Professor Roediger and Harvey teamed with Denise Lieberman of Advancement Project in seeking the injunction.
This is a staggering amount of litigation mounted in a remarkably short time by a small band of lawyers. Most of this litigation is ongoing, and a detailed description and analysis of each case is beyond the scope of this article. But one lawsuit has already resulted in a settlement that will likely have major implications, not only in the remaining St. Louis County litigation but also around the nation, as similar lawsuits are being filed all over the country.
The class action complaint against the City of Jennings was filed in the U.S. District Court for the Eastern District of Missouri on behalf of impoverished people who were jailed by the city because they were unable to pay a debt owed to the city from traffic tickets or other minor offenses. The complaint alleged that the plaintiffs were each held indefinitely in a jail with grotesque living conditions, and none was afforded a lawyer or a judicial inquiry into his or her ability to pay, as required by the U.S. Constitution.
The plaintiffs asserted that the city issued arrest warrants without probable cause to believe that the person arrested had the ability to make a payment. When impoverished people appeared at the city payment window, they were told they would be jailed if they did not bring specific sums of money to the city on designated dates in the future. The city would then issue arrest warrants for “failure to appear” when people did not pay by those designated dates, even though they did not fail to make any required court appearances.
The complaint asserted constitutional claims under the Fourteenth Amendment for the city’s jailing of the plaintiffs solely for their inability to pay these fines or fees; under the Sixth and Fourteenth Amendments for the city’s failure to provide counsel to the plaintiffs so jailed; under the Fourteenth Amendment for the use of indefinite and arbitrary detention; under the Fourteenth Amendment for inhumane and dangerous conditions of confinement in the jail; under the Equal Protection Clause of the Fourteenth Amendment because the city imposed harsh and punitive restrictions on debtors whose creditor was the government, compared with those who owed money to private creditors; and under the Fourth and Fourteenth Amendments for issuing invalid warrants against those who had not paid their traffic debt without any prior knowledge that these individuals were able to pay the debt.
In a virtually identical lawsuit filed in the same U.S. district court against the City of Ferguson, the defendants moved to dismiss the complaint, and the court entered an order denying the motion to dismiss, initially on four of the six constitutional claims and eventually, after granting a motion for reconsideration, on all six. In its orders on the motion to dismiss, the district court upheld the plaintiffs’ claim of unconstitutional jailing for inability to pay, relying on the U.S. Supreme Court’s Bearden decision. The court noted that federal courts following Bearden have repeatedly held that jailing persons who are unable to pay a court-ordered fine, without first inquiring into their ability to pay and considering alternatives to imprisonment, violates both the Due Process and Equal Protection Clauses of the Constitution.
In allowing the plaintiffs’ right to counsel claim, the court relied on Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), which held that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he was represented by counsel at his trial.” In upholding the plaintiffs’ claim that they were indefinitely and arbitrarily detained for days or weeks without a court appearance, the court noted that the Eighth Circuit has not delineated with precision “the duration and circumstances of detention that might result in a due process violation.” Because the Eighth Circuit has held that pretrial detainees are “entitled to at least as great protection” as convicted prisoners are entitled to under the Eighth Amendment, the court denied the defendants’ motion to dismiss the plaintiffs’ claim regarding conditions during their confinement in the city’s jail.
The plaintiffs relied on the U.S. Supreme Court’s decision in James v. Strange, 407 U.S. 128 (1972), to support their claim that they were treated worse than civil judgment debtors by the city in violation of the Equal Protection Clause. The district court initially dismissed this claim, believing that the plaintiffs had not adequately alleged that they were similarly situated to civil judgment debtors, but on rehearing, the court agreed with the plaintiffs that their allegations were sufficient to overcome a motion to dismiss. Similarly, the district court initially dismissed the plaintiffs’ Fourth Amendment claim that the warrants issued to them were invalid in violation of the command of Baker v. McCollan, 443 U.S. 137, 142 (1979), that “the Fourteenth Amendment requires the States to provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty.” However, on rehearing, the district court found that the plaintiffs had plausibly pled that the city had a policy of issuing warrants for “failure to appear” without probable cause. The case is now in discovery.
The City of Jennings chose a different path in defending the class action asserting parallel claims against it. Even before the lawsuit was filed, it recalled all outstanding warrants, and it has dismissed all cases and forgiven all fines and costs imposed before March 12, 2011. Its lawyer, D. Keith Henson, contacted plaintiffs’ counsel after the filing of the lawsuit and negotiated a stay of the proceedings to give the parties time to see if they could settle the declaratory and injunctive relief claims. Henson never once spoke to the media about the case; was versed in all of the applicable case law, both state and federal; and sought from the beginning to bring his client into compliance with both state law and the U.S. Constitution.
The result was a remarkably detailed settlement agreement entered into in August 2015 that has the potential to serve as a model for resolution of the remaining debtors’ prison disputes, both in the St. Louis County municipal courts and around the nation. The settlement terms were approved by the district court and are now the law in Jennings. The stipulated declaratory relief validated each of the constitutional claims and also the principle that fines and costs imposed by a municipal court should be collected only through the same methods that private creditors must use to collect debts. The stipulated prospective injunctive relief was equally sweeping, establishing a procedure for determining ability to pay at the time fines or costs are imposed, authorizing alternatives of payment plans or satisfaction through community service, and limiting collection efforts to those authorized under Missouri law for collecting civil money judgments. The parties agreed that pretrial detainees facing municipal code violations would be released on recognizance or unsecured bond except in limited circumstances, such as when the detainee is intoxicated, in which case a 12-hour hold is allowed, or the charge is assault or threatening conduct, including domestic assault, requiring a preventive detention hearing before a judge within 24 hours.
Almost a year later, in July 2016, the parties in the Jennings case entered into a settlement agreement for damages in which the City of Jennings agreed to pay $4.7 million to an estimated 2,000 mostly poor, African American residents Jennings had jailed for unpaid court debts. This settlement was the highest daily rate of compensation paid in any settlement to date to resolve debtors’ prison practices. The settlement includes an additional $1 million to $2 million in debt forgiveness for poor people detained for nonpayment in the Jennings jail between February 8, 2010, and September 16, 2015.
The funds for the damages settlement came from the city’s insurers. This damages settlement is now notice to municipal insurers all over the country. Hopefully, these insurance companies will now start to police the practices of the approximately 6,500 municipal courts in the United States, courts that the former U.S. attorney general has recently described as in many instances “causing and exacerbating poverty” in this country.
Throughout all of this litigation and public advocacy, the SLU Law Clinic professors at all times worked with their clinic students, essentially a law firm within a law school, much as partners work with associates in traditional law firm practice. The teaching and learning experience from this real-world model presented unique opportunities for professors and students alike.
Law student Sarah LeRose worked with the author and Professors Ammann and Roediger on the closed courts issue, researching the law and drafting the letter to the chief judge that would eventually open up these courts to the public. In the immediate aftermath of the Brown killing, law student Erica Mazzotti appeared with Professor Ammann at a public meeting before the Ferguson City Council and, with network television present, issued a call for amnesty, including a demand that all pending cases be dismissed, that all fines and fees be forgiven, and that the City of Ferguson repeal all of the illegal provisions for fees and fines on its books. Several cities thereafter instituted warrant recall programs and forgave outstanding fees and fines.
Law student Marie DeFer worked on the amicus brief filed on behalf of clients of SLU Law who had been subjected to illegal fines and fees in a Missouri Supreme Court case filed by the Municipal League challenging the “Mack’s Creek Law” that had capped traffic fees and fines at 30 percent of a municipality’s annual revenues. The Municipal League sought the ability for a municipality to draw a higher percentage of its total annual revenues from such fees and fines. The challenged provision provided that a municipality would “suffer immediate loss of jurisdiction” if it failed to timely file the annual report required by the law for such traffic fees and fines. DeFer presented the oral argument for the amici in the Missouri Supreme Court. The court dismissed the Municipal League’s challenge as moot after the passage of Senate Bill 5, discussed below. Both Mazzotti and DeFer worked on all of the 12 class actions filed against St. Louis City and St. Louis County municipalities that had imposed illegal fines and fees.
The efforts of SLU Law did not go unnoticed. SLU Law received a 2014 Super Lawyers Pro Bono Award, the 2015 Missouri Lawyers Weekly Legal Champion Award, and the 2015 Clinical Legal Education Association Award for Excellence in a Public Interest Case or Project. Professor Roediger was awarded the 2015 Edna M. Taylor Client Service Award from Legal Services of Eastern Missouri, a Pro Bono Award from the Missouri Bar Young Lawyers’ Section, a Spirit of Justice Award from the St. Louis Bar Foundation, and the Open Door Award from the St. Louis Equal Housing Opportunity Council. Professor Justin Hansford received the 2015 Junior Faculty Teaching Award from the Society of American Law Teachers for his work on Ferguson issues.
The efforts of the SLU Law professors and ArchCity Defenders went far beyond this remarkable body of litigation. Thomas Harvey and Professor Roediger worked with the Ferguson Commission’s Working Group on Municipal Courts to influence policy changes. Roediger and Harvey traveled to Jefferson City, Missouri, to testify regarding municipal courts on numerous occasions. The two also traveled to Washington, D.C., to testify to members of the House Judiciary Committee and again to attend a White House gathering of experts on fines and fees. Harvey provided invaluable expertise to the Department of Justice throughout its investigation of Ferguson.
Eventually, the Missouri Supreme Court would weigh in, as both SLU Law and ArchCity Defenders had publicly advocated and contrary to the public position of the president of the Missouri Bar Association. The court removed Ferguson Judge Ronald Brockmeyer from his job and transferred all Ferguson municipal court cases to the St. Louis County Circuit Court.
The Missouri legislature would eventually pass and the governor would sign Senate Bill 5, limiting the powers and revenues of the municipal courts, capping fees for minor traffic violations, and setting minimum standards for municipal courts.
Senate Bill 5 was a major step forward in curbing the perverse incentives inherent in these municipal court systems. As constructed, these systems by their very nature encouraged judges, prosecutors, and city officials—all of them—to do the wrong thing; that is, to act as important revenue generators for these small governmental entities. All of the officials thereby are unavoidably compromised and incapable of performing these and other essential governmental functions constitutionally and professionally. It was for that reason that both Roediger and Harvey urged the Missouri legislature to go further than it did in Senate Bill 5 by transferring all municipal cases in St. Louis County’s 81 municipal courts to the St. Louis County Circuit, where there are full-time professional judges and prosecutors.
Senate Bill 5 instituted a number of important reforms for Missouri municipal courts, including the opportunity for a person held in custody for minor traffic violations to be heard by a judge within 48 hours; a prohibition against holding people in custody for more than 24 hours after arrest without a warrant; a prohibition against detaining people arrested to coerce payment of fines and costs; the opportunity for people arrested to present evidence of their financial condition, which must be taken into account in determining appropriate fines and costs and in establishing payment plans; no fines and costs except those authorized by law; no additional charges for failure to appear for a minor traffic violation; open courtrooms; and provision for alternative payment plans and community service alternatives for those unable to pay fines and costs. Portions of Senate Bill 5 have been held unconstitutional, but it is important to note that the sections relating to the rights of defendants withstood the challenge.
As the Jennings settlement made abundantly clear, much more is required to bring these courts into compliance with the commands of the U.S. Constitution. The SLU Law Clinic professors and ArchCity Defenders and many others continue to urge the abolition of all 81 municipal courts and the transfer of all cases to the St. Louis County Circuit Court, with full-time judges and prosecutors who can professionally and constitutionally adjudicate these cases.
As noted earlier, the meeting with Judge McShane in the spring of 2014, called to discuss the substantial number of closed courts in St. Louis County, was attended by a number of representatives of the St. Louis County municipal courts and the SLU Law Clinic and ArchCity Defenders. Included among the SLU Law representatives was the SLU Law dean at the time, Michael Wolff, a former chief justice of the Missouri Supreme Court.
While Dean Wolff’s presence was undoubtedly helpful at that meeting, when ArchCity Defenders and the SLU Law Clinic instituted the class actions and other litigation described above, challenging the entire legal community in which SLU Law existed, Dean Wolff made a very important decision. He would not formally or publicly take a position on the litigation but would defend his professors and their work when the inevitable opposition would come from many SLU Law alumni and supporters. Dean Wolff’s reliance on basic principles of academic freedom and noninterference proved to be a very wise decision.
The litigation that has already been filed in the aftermath of the killing of Michael Brown, as well as further litigation that is sure to follow against other offending municipalities, will probably take years to resolve. In the meantime, all of this litigation has provided a public forum for the airing of grievances that have been decades in the making, as Colin Gordon so graphically described in Mapping Decline. Rarely, if ever, have law school faculty partnered with alumni to play such a major role in effecting legal and social change in the very community in which the law school exists.
Ferguson, and the litigation and public dialogue it spawned, changed the question about the nation’s 6,500 municipal courts. Prior to Ferguson, the question most asked about these courts was: What’s wrong with our clients? After Ferguson, the question most asked about these courts was: What’s wrong with these courts?
At the time of the killing of Michael Brown on August 14, 2014, Bearden v. Georgia, the Supreme Court case that had outlawed debtors’ prisons (jailing poor people without inquiry into their ability to pay fines and fees) had been the law for more than 30 years. The experience of ArchCity Defenders and the SLU Law Clinic professors working in those courts for several years before Michael Brown’s death was essential to their success in challenging those patently unconstitutional criminal “justice” systems. The lesson here is that when immersed in the thick of battle in openly unconstitutional “justice” systems, lawyers must look for viable systemic claims to expose and eliminate such practices.
Systemic challenges to unconstitutional criminal “justice” systems that primarily and disproportionately affect racial minorities cannot be understood without reference to the entire history of societal discrimination in that community. The formation of a viable public narrative for systemic challenges to such systems must recognize that sordid history. ArchCity and the SLU Law Clinic were fortunate that Colin Gordon’s remarkable work was immediately available to them. But similar evidence is available in university and other archives in cities throughout the nation.
Systemic litigation presents remarkable opportunities for students and professors in law school clinics to work together in a manner very similar to the partner/associate model in private practice law firms. The potential for law school experiences that get these students ready to add value sooner rather than later upon entry into the practice of law is obvious.
Finally, and most important, this kind of systemic litigation challenges massive economic and institutional interests and will be vigorously resisted because of the large sums of money and numbers of jobs at stake. Litigation alone cannot effectuate the kind of large-scale societal change required here. The work of the community groups that ArchCity and the SLU Law Clinic engaged in this effort was absolutely essential to the success of the venture. Resistance to these efforts will continue for decades, and the involvement of these community groups will be essential to the ultimate success of this work.