COLUMN-Tragedy in Ferguson: What the Justice Department can do next

by Reuters
Monday, 25 August 2014 19:22 GMT

(William Yeomans served as Senator Edward M. Kennedy's chief counsel on the Senate Judiciary Committee and as a Justice Department official. The opinions expressed are his own.)

By William Yeomans

Aug 25 (Reuters) - The tragic killing of Michael Brown by Officer Darren Wilson has brought to the surface long-simmering tensions between the Ferguson Police Department and the Missouri community it serves. In the shooting's immediate aftermath, the focus has been on whether Wilson will be prosecuted criminally and convicted for the shooting. In the longer term, however, the focus must ultimately turn to a broader agenda, including substantial reforms in the Ferguson Police Department if it is to regain the full trust and confidence of the community.

After Attorney General Eric Holder traveled to the St. Louis suburb on Wednesday, he vowed that the Justice Department would stay involved to help heal the relationship between the police department and the public. While many of the essential facts of the encounter between Brown and Wilson remain unknown, we do know that criminal convictions of police officers for shooting people are few and far between. The killing of Brown may turn out to be the rare incident that results in a criminal conviction by state or federal prosecutors, but statistics suggest that outcome is unlikely.

So what more can Holder and the Justice Department do? Fortunately, whatever the outcome of the criminal process, they still have important tools at their disposal.

One crucial order of business will be to identify any credible allegations that the Ferguson Police Department used excessive force or other unconstitutional practices in responding to the demonstrations. The department's frightening display of heavy weaponry established that it overreacted to peaceful protests, as did its heavy-handed treatment of the press. It will be essential to launch investigations into the credible allegations and pursue criminal prosecutions if any are appropriate.

The collection of these incidents, as well as incidents in the relatively recent past, will serve a second purpose. The attorney general has authority to investigate and file suit against a police department that has engaged in a pattern of conduct that violates the Constitution or federal laws. The investigation leading to such a suit can include an in-depth examination of the Ferguson Police Department's use of force, its conduct in searches, surveillance and making arrests (including allegations of racial profiling and other bias) and its procedures for training, supervising and disciplining officers.

In Ferguson, the investigation will have to include the police department's interference with the First Amendment rights of the press. The Justice Department will likely need to bring in experts familiar with policing practices to identify problems and offer solutions that will help the Ferguson police promote transparency and build bonds with the community.

Ultimately, the Justice Department and the police department will enter negotiations to resolve the problem. If they cannot agree, the case will go to trial. In the overwhelming majority of cases, however, they reach a settlement - sometimes through a court decree that remains enforceable until the judge agrees that the unconstitutional conditions have been fixed.

In addition, the attorney general has authority to conduct an investigation of the police department's hiring practices. These practices have produced and maintained a nearly all-white police force in a community that is majority African-American. Hiring practices that produce such a stark racial disparity violate the Civil Rights Act of 1964 - unless they are required by business necessity. The Justice Department's Civil Rights Division and private litigants have enforced the act to help in desegregating a number of large metropolitan police forces, as well as smaller ones such as Ferguson.

Such an investigation can examine whether Ferguson relies on written tests or other instruments that disproportionately exclude minority applicants and are not sufficiently related to job performance. It can also explore whether the police department's recruitment is inclusive and reaches a sufficiently broad labor market, as well as whether there are other hurdles in the hiring process that disfavor minority applicants. A lawsuit can result in restructuring of the hiring procedures and, if necessary, court supervision of changes.

It is time for the Civil Rights Division to amp up its enforcement activity, beginning with Ferguson. It then needs to scrutinize suburban towns like Ferguson, in which African-American migration from inner cities has created majority African-American jurisdictions, though the institutions of power and sources of municipal employment have continued to be dominated by whites.

Yet the racial composition of the Ferguson Police Department is about more than fairness to employment applicants. Experts agree that police forces are more effective when they resemble the communities they police. Diversity on a police force is essential in establishing community bonds to promote communication and trust that lead to more effective investigations, increased success in deterring crime and improved understanding about how to defuse situations that might lead to unnecessary violence.

The disturbing specter of an excessively militarized white police force occupying the streets of a predominantly African-American community in Ferguson drove home this lesson.

In addition, the attorney general must continue to deploy the Community Relations Service to build understanding in the local population. The Community Relations Service was created by the 1964 Civil Rights Act as an agency in the Justice Department that sends mediators and peacemakers into racially troubled communities. They are not law enforcers. Rather, they try to bridge divisions and get people working together through facilitating dialogue and helping communities put in place structures and relationships for the long term to lessen racial tensions.

This agency has often been neglected and underfunded by Congress. The actions in Ferguson highlight the continuing need for it. Its resources should be increased as the Civil Rights Division's work spreads to new communities.

The problems revealed by the tragedy in Ferguson are not limited to Ferguson and cannot all be addressed by the Justice Department. The same tensions that burst into confrontation following the police killing of Brown fester barely beneath the surface in other communities.

Ferguson is a reminder that race continues to matter in our society. The tensions between the African-American community and law enforcement present a powerful rebuttal to those - from Supreme Court justices to politicians at all levels - who would have us deal with our continuing racial tensions by averting our gaze and discussing something else. We need to embrace continuing efforts to overcome racial discrimination through conversation and action.

The attorney general's visit to Ferguson and his promise to keep the Justice Department engaged for the long haul was a promising step. (William Yeomans)

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