In the nearly 10 years since the killing of 18-year-old Michael Brown by police in Ferguson, Missouri, challenges remain and many of the proposed policing solutions are likely to be abandoned, a panel of legal and civil rights experts said at the American Bar Association Midyear Meeting in Phoenix.
The panel, “A Legal Retrospective and Prospective of Ferguson and Policing,” was sponsored by the ABA Section of State and Local Government Law.
“It’s easy to forget things,” said Kimberly Norwood, professor of law at Washington University School of Law and editor of “Ferguson’s Fault Lines,” a compilation of essays on the policing of Black and poor communities. “Sometimes you think silence means the problem has been solved. But that’s a dangerous strategy. Ten years after Ferguson we are still dealing with the very same issues that gave rise to the uprising.
“Ferguson is a microcosm of many other cities in our country,” Norwood said. “So, the concerns of another eruption are not limited to Ferguson.”
Nearly every issue “that contributed to the massive and continued protests” in Ferguson and around the country — unemployment, predatory policing, First Amendment violations, racial and implicit biases, housing, mental health issues and more — “is still a problem today,” Norwood said.
The St. Louis suburb still is under a consent decree to implement policing reforms that was supposed to last five years.
While Missouri implemented laws that made incremental changes like requiring body cameras for police and limiting the percentage of a city’s revenue that can be raised from ticketing, “these are just Band-Aids. We haven’t put a dent in the problems that exist,” Norwood said.
In addition, she said, “the media continues to frame crime and criminals with black faces.”
Melba V. Pearson, an attorney specializing in civil rights and criminal law, said “the biggest source of power for marginalized people” has been the courts and the use of consent decrees by U.S. Department of Justice Civil Rights Division to “monitor these police departments and ensure that the policies are beneficial to the community.”
But the Trump administration has paused investigations by the Civil Rights Division and is reviewing consent decrees issued in the final days of the Biden administration, which include proposed police reform agreements in Minneapolis and Louisville, Kentucky, Pearson said. (George Floyd and Breonna Taylor, both African Americans, were killed by police in Minneapolis and Louisville respectively.)
Without relief from the courts or the Civil Rights Division, Pearson said pursuing reforms on the local level is another recourse. “Electing your state attorney and having them be the one to go after bad cops, making sure your mayor and city council are on board with reforms,” are essential in the current environment, she said. “Because without that, we are going to get no help with reforms.”
Ben McJunkin, associate professor of law at the Sandra Day O’Connor College of Law at Arizona State University, said consent decrees are one of the only mechanisms designed to focus on actions by an entire department. “They offer the opportunity for the city to enter into a consent decree where they’re willing to make meaningful reforms across the board. In one sense this is the most powerful tool we have in reforming police departments,” he said.
But consent decrees are limited in significant ways. A single DOJ investigation can take years and can only impact one department at a time, he said. Only 15 consent decrees came out of 25 investigations during President Obama’s eight years in office, McJunkin said.
“But nevertheless, when we implement reforms through consent decrees, we can actually systemically change the department,” he said. “And if you get departmental buy-in you can make really, really meaningful reforms. We can actually change policing strategies, we can increase training, we can make changes to things like de-escalation and the use of force that can actually meaningfully change lives.”
In Ferguson, there was a pattern of constitutional violations and dysfunctional policing in the jurisdiction, McJunkin said. “Police in Ferguson were fundamentally motivated by generating revenue. All of the unrest and uprising that we saw that led to this investigation in the first place was a product of a lot and long period of unconstitutional policing.”
Jamila Jefferson, associate dean for diversity, equity, inclusion and belonging at the University of Kansas School of Law, moderated the session.