DOJ says Ferguson police violated African-Americans’ free speech rights

Justice Department report: Talk back to officer or record public events and you could be arrested for ‘contempt of cop’

A man backs away as law enforcement officials close in on him and eventually detain him after protests over the death of Michael Brown, killed by a police officer in Ferguson, Mo. on Aug. 11, 2014.
Whitney Curtis / The New York Times / Redux Pictures

The scathing Department of Justice report that says the Ferguson Police Department (FPD) routinely violated the rights of African-Americans also includes evidence that freedom of speech was regularly denied to anyone who dared to talk back to an officer.

The six-month investigation concluded that officers in the St. Louis suburb denied people their First Amendment rights, making arrests for offences often referred to as “contempt of cop’’ cases — in which people are taken into custody for talking back to officers, for recording public police activities or for lawfully protesting perceived injustices. All are activities protected by the Constitution.

“FPD’s suppression of speech reflects a police culture that relies on the exercise of police power — however unlawful — to stifle unwelcome criticism,” said the report, which was released Wednesday.

Though the Supreme Court has held that the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers, the DOJ report concluded that the Ferguson police frequently made enforcement decisions based on what people said or how they said it. The FPD also found that officers reflexively resorted to arrest immediately upon noncompliance with their orders, whether lawful or not, and were quick to overreact to challenges and verbal slights. 

Based on accounts drawn from the officers’ own descriptions, the report concluded that “FPD officers believe criticism and insolence are grounds for arrest, and that supervisors have condoned such unconstitutional policing.’’ Further, the report read, such institutional bias “reflects intolerance for even lawful opposition to the exercise of police authority.”

The DOJ report faulted the Ferguson department for failing to give its officers tools for de-escalating emotionally charged situations, even though such skills are essential to policing.

That skill is crucial, said Joe Giacalone, a retired New York City Police Department (NYPD) Detective Sergeant and adjunct professor at John Jay College of Criminal Justice.

“As a police officer you don’t want to get into physical confrontations with people," he said. "You want to avoid situations where there would be violence. You have to know how to talk down people and get people to comply by your approach.”

Backtalk as dissent

Justice officials cited several incidents, including one in which a police officer arrested a business owner on charges of interfering in police business and misuse of 911 because she objected to an officer’s detention of her employee for “walking unsafely in the street” as he returned to work from the bank. 

In another example, an officer stopped a man for dancing in the middle of a residential street. The man was asked for his ID and police checked his name for warrants. Finding none, the officer told the man he was free to go. The man responded with profanities. Told to watch his language, he responded with more profanities. The officer arrested him for his “manner of walking in roadway.”

“Even profane backtalk can be a form of dissent against perceived misconduct,” the report said.

The misconduct that the DOJ details in its report didn’t shock Chris King, managing editor at the St. Louis American, a weekly newspaper.

"The report very flatly describes the way police behave with black people," King said. "It's a surprise to no one who is black and lives in St. Louis County." 

Protests there last summer over the shooting death of unarmed black teenager Michael Brown by a white FPD officer, in circumstances stemming from a verbal dispute in the street, showcased how the department ignores free speech rights, King said.

"We saw First Amendment violations on steroids in August, especially during protests," King said. "And you could tell by the way police responded that they were not unaccustomed to brushing people aside or to stopping them videotaping their conduct."

The police also arrested Ferguson residents when they attempted to record police activities, an act the Supreme Court has said is also protected by the First Amendment. The DOJ described several incidents in which Ferguson police insisted that people witnessing stops were not allowed to film them, eventually arresting those who would not comply.

In the wake of the large protests that rocked Ferguson after Brown was killed, several lawsuits were brought against the police department and the city on First Amendment issues. Despite a consent order in one case and a settlement in the other, the Justice Department found that the FPD continued to interfere with individuals’ rights to protest and record police activities.  

According to the report, on Feb. 9, 2015, the FPD threatened to arrest several people protesting the six-month anniversary of Brown’s death. As they made the arrests, one man who recorded the incidents was arrested for interfering with police action. Similarly, a protestor in a wheelchair who was live-streaming the protest was also arrested.  Others with cameras were threated with arrest for failure to obey, or for their manner of walking. The DOJ concluded that the “officers’ escalation of this incident that was unnecessary and in response to derogatory comments written in chalk on the FPD parking lot and on a police vehicle.”

Carlos Miller, the publisher and founder of the new website Photography is Not a Crime (PINAC), was not surprised by the report’s allegations, and said such behaviors are not unique to the FPD.

“That part of the report [on first amendment violations] could be anyone from the NYPD to the LAPD to big and small city agencies,” said Miller, who was arrested in 2007 for taking pictures of police during a journalism assignment in Miami. “It’s a pattern of behavior we see across the country, but nothing ever happens.”

While he applauded the DOJ for its recommendations, and for using the high-profile nature of the Ferguson report to highlight the First Amendment violations, he said he believes that without a system of accountability in place, the pattern will continue.

Wednesday afternoon Attorney General Eric Holder promised things would change. “Dialogue, by itself, will not be sufficient to address these issues — because concrete action is needed,” he said.

“It is clear from our work throughout the country — particularly the work of our Civil Rights Division — that the prospect of police accountability and criminal justice reform is an achievable goal; one that we can reach with law enforcement and community members at the table as full partners.”

But in Ferguson, the DOJ’s report concluded that when officers engage in unconstitutional policing by quelling speech, they are only exacerbating the distrust of law enforcement among those needed community partners.

In a news conference Wednesday evening, Ferguson Mayor James Knowles responded to the report by saying that the city of Ferguson had disciplined three FPD employees who the DOJ found had exchanged emails with “explicit racial bias.” After finding out about the emails Tuesday, the city fired one employee and placed another two on administrative leave “pending an investigation,” Knowles said.

“Let me be clear,” he said. “This type of behavior will not be tolerated in the Ferguson Police Department or in any department in the city of Ferguson. Knowles called their actions “in no way representative” of their colleagues.

Knowles also said that the city of Ferguson had made strides to engage the community and reduce the onerous criminal and civil penalties the municipal court imposed on citizens, most of them black, for minor traffic violations. He did not take questions from reporters.

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