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The latest JFK disclosure is further proof the CIA has lied for decades about its relationship to Lee Harvey Oswald. No wonder it doesn’t want the last of the records to see the light of day.
It would all seem pretty strange, if not suspicious. Right?
This is the very real state of affairs concerning the 1963 assassination of John F. Kennedy at the hands of Lee Harvey Oswald, whom the CIA and skeptics in the political and media establishments have long insisted was simply a “lone nut” unconnected to the agency, and who murdered the president with no outside help. Chipped away at for years, that narrative dented yet again this week thanks to the unearthing of a new, unredacted document from the Biden administration’s most recent round of JFK records declassification.
As reported by the New York Times, the document in question shows a CIA official named Reuben Efron writing about mail correspondence between Oswald, who was returning home after a three-year stint as a defector in the USSR, and his mother while he’d been living in Minsk, with both the letter and a Washington Post story about his return to the United States attached. Dated June 22, 1962, Efron’s memo notes that “this item will be of interest to Mrs. Egerter” — Elizabeth Ann Egerter, who worked under CIA counterintelligence (CI) chief James Angleton in the “office that spied on spies,” the Special Investigations Group (SIG) — as well as to “CI/SIG, and also to the FBI.”
In other words, not only was the CIA aware of Oswald before the assassination, but the agency was reading his mail and considered him someone of interest, specifically to the very office responsible for investigating spies. And it was doing so as late as seventeen months before Kennedy was killed in Dallas.
Adding to the strangeness is the fact that Efron pops up in the 1964 Warren Commission report on the murder, listed as one of thirteen people in the hearing room during the testimony of Oswald’s widow — and, as the Times points out, the only one of the twelve US officials present who wasn’t identified with any kind of title. Jefferson Morley, the historian and longtime JFK researcher who discovered the memo, told the paper that it suggested that Efron was Angleton’s “eyes and ears inside the room.”
“It certainly looks like there was a concerted, organized operational effort to keep track of Oswald, for what purpose we don’t know,” Morley says.
That the agency had been reading and collecting Oswald’s mail while he was in the Soviet Union isn’t a new revelation. But this memo does reveal, for the first time according to Morley, who exactly was reading his mail, that Efron was a CIA employee, and that the agency viewed it as important to keep these apparently minor details hidden from the public for sixty whole years.
Yet when asked if Oswald was a CIA agent, Richard Helms, CIA director at the time of Kennedy’s death, had told the President’s Commission on CIA Activities as late as 1975 that “the agency was never able to find any evidence whatsoever, and we really searched that it had any contact with Lee Harvey Oswald. . . . He was certainly never used by the CIA.” It’s just one of many examples of the agency lying about the matter to the public and to officials.
The memo should cast doubt on official claims that the more than four thousand assassination-related documents still under lock and key won’t change our understanding of the case. Because many of those documents are already viewable but simply have details like names and locations blacked out, the argument goes, releasing them won’t yield the kind of bombshell revelations that assassination researchers hope for.
And yet, in this instance, merely un-redacting someone’s name in a previously released document has proven hugely significant.
“‘There’s nothing significant here’ — that statement is made by people who don’t look at the records,” says Morley.
Documents Pile Up
This isn’t the only major revelation that has come out of President Joe Biden’s December declassification. One is a secret 1977 memo unearthed by Morley and other researchers that was written by an employee of the foreign intelligence branch of the CIA’s Miami station, showing that far from assuming that Oswald acted alone or that the KGB was involved, officers there considered anti-communist Cuban exiles prime suspects.
According to the memo, when Kennedy was still alive, station chief Theodore G. Shackley ordered scrutiny of the movements and plans of “known dangerous Cuban exile activists” while the president was traveling the country, to get wind of and halt any “conspiracies” in that community to “exploit or interfere with the president’s movement.” After Kennedy’s death, the memo states, Shackley and other top station officials ordered agents to gather information about Cuban exiles who may have been involved in the assassination.
Sure enough, the decades that followed have seen serious circumstantial evidence of anti-Castro exile involvement come to light. One anti-Castro militant, Antonio Veciana, admitted that he had been introduced to Oswald in Dallas by his CIA handler, a man whom he later identified as David Atlee Phillips, head of the agency’s anti-Cuban operations. In late 2021, the son of anti-Castro fighter and CIA contractor Ricardo “Monkey” Morales revealed that his father had told him that he had trained Oswald as a sniper at a secret CIA training camp for an invasion of Cuba, and that he had been ordered by his CIA handler to go to Dallas for a “clean-up” mission two days before Kennedy was shot.
Another document from the December tranche found by researchers is a 1976 CIA memo attesting to the agency’s heavy involvement in the Warren Commission’s investigation. According to the memo, thirty-nine CIA personnel were involved, including “nine of whom were involved daily.” As Morley pointed out at the time, several of those listed in the memo are known to have misled the Warren Commission about the CIA’s interest in and knowledge of Oswald.
It’s further evidence of what even the agency’s own in-house historian in 2013 charitably called a “benign cover-up” by the CIA in its dealings with the commission, aimed at pushing it in the direction of what it considered the “best truth” — that Oswald acted alone in killing Kennedy, for his own, inexplicable motives.
It builds on previous disclosures that show that the CIA had a keen and extensive interest in Oswald before the assassination that went right up to the agency’s senior officials.
Miles to Go
The December declassification that has kept thousands of documents obscured was announced as Biden’s “final” one, threatening to keep hidden countless records that could be pivotal to public understanding of the assassination.
Among the records that are still classified are dozens of documents on George Joannides. Joannides came out of retirement in 1978 after he was picked by the CIA to be its liaison to the House Select Committee on Assassinations’s reinvestigation into the case — one that staffers complained that Joannides serially stonewalled and obstructed them on — without disclosing that Joannides was the CIA Miami station official who had headed the very anti-Castro exiles being investigated.
The CIA later awarded him its Career Intelligence Medal but insisted on keeping secret any explanation of what exactly for, on the grounds of “national defense and foreign policy.” The CIA’s own evaluation deemed him “the perfect man for” the job in 1978, and praised “the firm position that he took with the young investigators.”
“If it took sixty-one years to get Efron’s name, and they’re still keeping four-thousand documents, is there something still in there about this?” says Morley. “You’d be willfully naive to say there isn’t.”
The Mary Ferrell Foundation recently won a court judgment to proceed with seeking the immediate release of some records, though that effort will likely be tied up in litigation for some time to come. Beyond that, perhaps the best hope for securing the further release of documents is mounting political and public pressure, particularly with the assassination’s sixtieth anniversary approaching this November.
Still, even if the CIA flatly refuses to abide by the law, coverage of the Efron memo by outlets like the Times and ABC suggests that questioning the official narrative of Kennedy’s killing is no longer as taboo in establishment circles as it once was. It’s cold comfort given the lies and secrecy that the incident remains stubbornly shrouded in, six whole decades after it happened. But given the stakes, and given the ramifications of the CIA’s ongoing secrecy and incompetence, it’s something.
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A Russian soldier stands in front of the Zaporizhzhia Nuclear Power Station in territory under Russian military control. (photo: AP)
Agency Director General Rafael Mariano Grossi stated that "during a walkdown on July 23, the IAEA team saw some mines located in a buffer zone between the site’s internal and external perimeter barriers," in a restricted area that plant workers cannot access.
When the issue was raised with Russian forces occupying the plant, the experts were "told that it is a military decision, and in an area controlled by military.”
Russia has occupied the Zaporizhzhia Nuclear Power Plant since March 2022. In the evening of July 22, the IAEA also reported hearing several explosions "some distance away from the plant."
The IAEA stated that it has previously been aware of the existence of mines outside the perimeter of the plant. In recent weeks, the team has been carrying out regular inspections on site.
Grossi also said that the experts still have not been let onto the roofs of the reactors. Ukraine's General Staff reported on July 4 to have observed the placement of objects resembling explosives on the roofs of reactors three and four of the plant.
The report came two weeks after after President Volodymyr Zelensky and Ukrainian military intelligence chief Kyrylo Budanov both said that Russia had rigged the plant with explosives and was prepared to commit an act of nuclear terrorism at any time.
The IAEA report added that on July 22, the power plant was forced to rely on a backup 330 kilovolt power line for around eight hours, after losing connection to the main 750 kilovolt power line. Power is needed to cool the plant's reactor.
Though the agency reported that the technical failure had no consequences to nuclear safety in this case, the situation "highlighted the site’s fragile external power situation" during the war. In October, the plant was forced to rely on diesel generators to provide power to the cooling systems due to Russian shelling.
On July 1, the plant was reconnected to the 330 kilovolt backup power line for the first time in four months.
Due to concerns about the access to water for cooling the reactors following Russia's destruction of the Kakhovka dam on June 6, the IAEA continues to monitor the water supply.
The report stated that the available water remains relatively stable, and that the site will have enough water "for some months."
The IAEA also commented on the start of the transition of the fourth reactor from hot to cold shutdown, which Russian forces occupying the plant have reportedly planned. The agency expects Unit 4 to reach a hot shutdown status on July 25.
Russian forces have ordered the fourth reactor into a hot shutdown state in violation of safety protocols, the Ukrainian nuclear agency Energoatom announced on Telegram on July 24.
Energoatom previously reported on July 21 that the Russian-appointed "General Director" of the plant is putting pressure on Ukrainian workers who have refused to sign contracts with Russia's state nuclear operator to reactivate the fourth reactor.
According to Energoatom, the operational staff brought in from Russia lacks the necessary expertise to work in the plant. Russian forces occupying the plant are trying to reconcile this by coercing Ukrainian specialists to work with them.
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A Texas trooper talks with migrants as they walk along concertina wire and try to cross the Rio Grande at the Texas-U.S. border in Eagle Pass, Texas, Thursday, July 6, 2023. (photo: Eric Gay/AP)
The lawsuit accuses the state of violating the River and Harbors Act, which prohibits the placement of obstructions in the water without federal approval.
"We intend to seek the appropriate legal remedies, including the removal of such obstructions in the Rio Grande," Assistant Attorney General Todd Kim said in a statement.
Last week, the U.S. Department of Justice warned Abbott that he had until Monday afternoon to agree to remove the barrier or face legal action. Officials said the governor's efforts to hinder migrants from crossing into Texas were "unlawful" and presented "humanitarian concerns," Texas Public Radio reported.
In a letter to President Biden on Monday, Abbott remained firm on his decision to deploy the buoys, insisting that Texas had the authority to enforce border security measures on its border.
"Texas will see you in court, Mr. President," he said.
The 1,000-foot-long floating barrier was installed near the border town Eagle Pass in early July as part of Abbott's $4 billion border security initiative, Operation Lone Star.
Texas' stretch of buoys covers only a tiny fraction of the 1,254 mile-river. To put in perspective, 1,000 feet is only about a fifth of a mile.
What is the floating barrier supposed to achieve?
The barrier is about 4 feet tall and movable, so that it can be "deployed strategically" in migrant crossing hotspots, Abbott said at a press conference in June. Webbing is also attached to the barrier underwater to make it difficult to swim below.
Still, it's not impossible to pass through the buoys. But Abbott said the floating border wall is designed to deter large groups of people from reaching Texas.
The Rio Grande is considered one of the deadliest travel routes for migrants. Over the years, its fast-flowing waters have drowned and killed hundreds of people attempting to reach the U.S., including babies and children.
Abbott said preventing more deaths is one reason for the buoys. But immigration advocates disagree that it will stop migrants from crossing. Rather, they argue the barrier will make the situation more dangerous for people who try to do so.
DOJ, U.S. lawmakers, Mexico urge the buoys to be removed
The DOJ on Thursday said Texas is violating the Rivers and Harbors Act by installing the barrier without federal approval.
Similarly, earlier this month, Mexico's top diplomat Alicia Bárcena said the buoys may violate 1944 and 1970 treaties on boundaries and water, particularly if it impedes the flow of water. Mexico has also asked for the buoys to be removed.
On Friday, dozens of House Democrats urged President Biden to stop Texas from deploying the buoy wall and sharp razor wire in the Rio Grande. They described the measures as creating "death traps" for migrants.
"As Governor Abbott continues to escalate his efforts on the border, we urge you to take the above actions and stop this horrific abuse of power," the letter said, which was led by Texas Congressman Joaquin Castro.
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An attendee uses Facebook Live to record President Biden speaking during a public appearance. (photo: Al Drago/Bloomberg)
A recent court ruling dramatically curtailed the federal bureaucracy’s ability to communicate with Internet platforms. What’s at stake when free speech harms the public?
To better understand the issues at stake, I recently spoke by phone with Genevieve Lakier, a professor of law at the University of Chicago Law School who focusses on issues of social media and free speech. (We spoke before Friday’s pause.) During our conversation, which has been edited for length and clarity, we discussed why the ruling was such a radical departure from the way that courts generally handle these issues, how to apply concepts like free speech to government actors, and why some of the communication between the government and social-media companies was problematic.
In a very basic sense, what does this decision actually do?
Well, in practical terms, it prevents a huge swath of the executive branch of the federal government from essentially talking to social-media platforms about what they consider to be bad or harmful speech on the platforms.
There’s an injunction and then there’s an order, and both are important. The order is the justification for the injunction, but the injunction itself is what actually has effects on the world. And the injunction is incredibly broad. It says all of these defendants—and we’re talking about the President, the Surgeon General, the White House press secretary, the State Department, the F.B.I.—may not urge, encourage, pressure, or induce in any manner the companies to do something different than what they might otherwise do about harmful speech. This is incredibly broad language. It suggests, and I think is likely to be interpreted to mean, that, basically, if you’re a member of one of the agencies or if you’re named in this injunction, you just cannot speak to the platforms about harmful speech on the platform until, or unless, the injunction ends.
But one of the puzzling things about the injunction is that there are these very significant carve-outs. For example, my favorite is that the injunction says, basically, “On the other hand, you may communicate with the platforms about threats to public safety or security of the United States.” Now, of course, the defendants in the lawsuit would say, “That’s all we’ve been doing. When we talk to you, when we talk to the platforms about election misinformation or health misinformation, we are alerting them to threats to the safety and security of the United States.”
So, read one way, the injunction chills an enormous amount of speech. Read another way, it doesn’t really change anything at all. But, of course, when you get an injunction like this from a federal court, it’s better to be safe than sorry. I imagine that all of the agencies and government officials listed in the injunction are going to think, We’d better shut up.
And the reason that specific people, jobs, and agencies are listed in the injunction is because the plaintiffs say that these entities were communicating with social-media companies, correct?
Correct. And communicating in these coercive or harmful, unconstitutional ways. The presumption of the injunction is that if they’ve been doing it in the past, they’re probably going to keep doing it in the future. And let’s stop continuing violations of the First Amendment.
As someone who’s not an expert on this issue, I find the idea that you could tell the White House press secretary that he or she cannot get up at the White House podium and say that Twitter should take down COVID misinformation—
Right.
Does this injunction raise issues on two fronts: freedom of speech and separation of powers?
Technically, when the press secretary is operating as the press secretary, she’s not a First Amendment-rights holder. The First Amendment limits the government, constrains the government, but protects private people. And so when she’s a private citizen, she has all her ordinary-citizen rights. Government officials technically don’t have First Amendment rights.
That said, it’s absolutely true that, when thinking about the scope of the First Amendment, courts take very seriously the important democratic and expressive interests in government speech. And so government speakers don’t have First Amendment rights, but they have a lot of interests that courts consider. A First Amendment advocate would say that this injunction constrains and has negative effects on really important government speech interests.
More colloquially, I would just say the irony of this injunction is that in the name of freedom of speech it is chilling a hell of a lot of speech. That is how complicated these issues are. Government officials using their bully pulpit can have really powerful speech-oppressive effects. They can chill a lot of important speech. But one of the problems with the way the district court approaches the analysis is that it doesn’t seem to be taking into account the interest on the other side. Just as we think that the government can go too far, we also think it’s really important for the government to be able to speak.
And what about separation-of-powers issues? Or is that not relevant here?
I think the way that the First Amendment is interpreted in this area is an attempt to protect some separation of powers. Government actors may not have First Amendment rights, but they’re doing important business, and it’s important to give them a lot of freedom to do that business, including to do things like express opinions about what private citizens are doing or not doing. Courts generally recognize that government actors, legislators, and executive-branch officials are doing important business. The courts do not want to second-guess everything that they’re doing.
So what exactly does this order say was illegal?
The lawsuit was very ambitious. It claimed that government officials in a variety of positions violated the First Amendment by inducing or encouraging or incentivizing the platforms to take down protected speech. And by coercing or threatening them into taking down protected speech. And by collaborating with them to take down protected speech. These are the three prongs that you can use in a First Amendment case to show that the decision to take down speech that looks like it’s directly from a private actor is actually the responsibility of the government. The plaintiffs claimed all three. What’s interesting about that district-court order is that it agreed with all three. It says, Yeah, there was encouragement, there was coercion, and there was joint action or collaboration.
And what sort of examples are they providing? What would be an example of the meat of what the plaintiffs argued, and what the judge found to violate the First Amendment?
A huge range of activities—some that I find troubling and some that don’t seem to be troubling. Public statements by members of the White House or the executive branch expressing dissatisfaction with what the platforms are doing. For instance, President Biden’s famous statement that the platforms are killing people. Or the Surgeon General’s warning that there is a health crisis caused by misinformation, and his urging the platforms to do something about it. That’s one bucket.
There is another bucket in which the platforms were going to agencies like the C.D.C. to ask them for information about the COVID pandemic and the vaccine—what’s true and what’s false, or what’s good and what’s bad information—and then using that to inform their content-moderation rules.
Very different and much more troubling, I think, are these e-mails that they found in discovery between White House officials and the platforms in which the officials more or less demand that the platforms take down speech. There is one e-mail from someone in the White House who asked Twitter to remove a parody account that was linked to President Biden’s granddaughter, and said that he “cannot stress the degree to which this needs to be resolved immediately”—and within forty-five minutes, Twitter takes it down. That’s a very different thing than President Biden saying, “Hey, platforms, you’re doing a bad job with COVID misinformation.”
The second bucket seems full of the normal give-and-take you’d expect between the government and private actors in a democratic society, right?
Yeah. Threats and government coercion on private platforms seem the most troubling from a First Amendment perspective. And traditionally that is the kind of behavior that these cases have been most worried about.
This is not the first case to make claims of this kind. This is actually one of dozens of cases that have been filed in federal court over the last years alleging that the Biden Administration or members of the government had put pressure on or encouraged platforms to take down vaccine-skeptical speech and speech about election misinformation. What is unusual about this case is the way that the district court responded to these claims. Before this case, courts had, for the most part, thrown these cases out. I think this was largely because they thought that there was insufficient evidence of coercion, and coercion is what we’re mostly worried about. They have found that this kind of behavior only violates the First Amendment if there is some kind of explicit threat, such as “If you don’t do X, we will do Y,” or if the government actors have been directly involved in the decision to take down the speech.
In this case, the court rejects that and has a much broader test, where it says, basically, that government officials violate the First Amendment if they significantly encourage the platforms to act. And that may mean just putting pressure on them through rhetoric or through e-mails on multiple occasions—there’s a campaign of pressure, and that’s enough to violate the First Amendment. I cannot stress enough how significant a departure that is from the way courts have looked at the issue before.
So, in this case, you’re saying that the underlying behavior may constitute something bad that the Biden Administration did, that voters should know about it and judge them on it, but that it doesn’t rise to the level of being a First Amendment issue?
Yes. I think that this opinion goes too far. It’s insufficiently attentive to the interests on the other side. But I think the prior cases have been too stingy. They’ve been too unwilling to find a problem—they don’t want to get involved because of this concern with separation of powers.
The platforms are incredibly powerful speech regulators. We have largely handed over control of the digital public sphere to these private companies. I think there is this recognition that when the government criticizes the platforms or puts pressure on the platforms to change their policies, that’s some form of political or democratic oversight, a way to promote public welfare. And those kinds of democratic and public-welfare concerns are pretty significant. The courts have wanted to give the government a lot of room to move.
But you think that, in the past, the courts have been too willing to give the government space? How could they develop a better approach?
Yeah. So, for example, the e-mails that are identified in this complaint—I think that’s the kind of pressure that is inappropriate for government actors in a democracy to be employing against private-speech platforms. I’m not at all convinced that, if this had come up in a different court, those would have been found to be a violation of the First Amendment. But there need to be some rules of the road.
On the one hand, I was suggesting that there are important democratic interests in not having too broad a rule. But, on the other hand, I think part of what’s going on here—part of what the facts that we see in this complaint are revealing—is that, in the past, we’ve thought about this kind of government pressure on private platforms, which is sometimes called jawboning, as episodic. There’s a local sheriff or there’s an agency head who doesn’t like a particular policy, and they put pressure on the television station, or the local bookseller, to do something about it. Today, what we’re seeing is that there’s just this pervasive, increasingly bureaucratized communication between the government and the platforms. The digital public theatre has fewer gatekeepers; journalists are not playing the role of leading and determining the news that is fit to print or not fit to print. And so there’s a lot of stuff, for good or for ill, that is circulating in public. You can understand why government officials and expert agencies want to be playing a more significant role in informing, influencing, and persuading the platforms to operate one way or the other. But it does raise the possibility of abuse, and I’m worried about that.
That was a fascinating response, but you didn’t totally answer the question. How should a court step in here without going too far?
The traditional approach that courts have taken, until now, has been to say that there’s only going to be a First Amendment violation if the coercion, encouragement, or collaboration is so strong that, essentially, the platform had no choice but to act. It had no alternatives; there was no private discretion. Because then we can say, Oh, yes, it was the government actor, not the platform, that ultimately was responsible for the decision.
I think that that is too restrictive a standard. Platforms are vulnerable to pressure from the government that’s a lot less severe. They’re in the business of making money by disseminating a lot of speech. They don’t particularly care about any particular tweet or post or speech act. And their economic incentives will often mean that they want to curry favor with the government and with advertisers by being able to continue to circulate a lot of speech. If that means that they have to break some eggs, that they have to suppress particular kinds of posts or tweets, they will do that. It’s economically rational for them to do so.
The challenge for courts is to develop rules of the road for how government officials can interact with platforms. It has to be the case that some forms of communication are protected, constitutionally O.K., and even democratically good. I want expert agencies such as the C.D.C. to be able to communicate to the platforms. And I want that kind of expert information to be constitutionally unproblematic to deliver. On the other hand, I don’t think that White House officials should be writing to platforms and saying, “Hey, take this down immediately.”
I never thought about threatening companies as a free-speech issue that courts would get involved with. Let me give you an example. If you had told me four years ago that the White House press secretary had got up and said, “I have a message from President Trump. If CNN airs one more criticism of me, I am going to try and block its next merger,” I would’ve imagined that there would be a lot of outrage about that. What I could not have imagined was a judge releasing an injunction saying that people who worked for President Trump were not allowed to pass on the President’s message from the White House podium. It would be an issue for voters to decide. Or, I suppose, CNN, during the merger decision, could raise the issue and say, “See, we didn’t get fair treatment because of what President Trump said,” and courts could take that into account. But the idea of blocking the White House press secretary from saying anything seems inconceivable to me.
I’ll say two things in response. One is that there is a history of this kind of First Amendment litigation, but it’s usually about private speech. We might think that public speech has a different status because there is more political accountability. I don’t know. I find this question really tricky, because I think that the easiest cases from a First Amendment perspective, and the easiest reason for courts to get involved, is when the communication is secret, because there isn’t political accountability.
You mentioned the White House press secretary saying something in public. O.K., that’s one thing. But what about if she says it in private? We might think, Well, then the platforms are going to complain. But often regulated parties do not want to say that they have been coerced by the government into doing something against their interests, or that they were threatened. There’s often a conspiracy of silence.
In those cases, it doesn’t seem to me as if there’s democratic accountability. But, even when it is public, we’ve seen over the past year that government officials are writing letters to the platforms: public letters criticizing them, asking for information, badgering them, pestering them about their content-moderation policies. And we might think, Sure, people know that that’s happening. Maybe the government officials will face political accountability if it’s no good. But we might worry that, even then, if the behavior is sufficiently serious, if it’s repeated, it might give the officials too much power to shape the content-moderation policies of the platforms. From a First Amendment perspective, I don’t know why that’s off the table.
Now, from a practical perspective, you’re absolutely right. Courts have not wanted to get involved. But that’s really worrying. I think this desire to just let the political branches work it out has meant that, certainly with the social-media platforms, it’s been like the Wild West. There are no rules of the road. We have no idea what’s O.K. or not for someone in the White House to e-mail to a platform. One of the benefits of the order and the injunction is that it’s opening up this debate about what’s O.K. and what’s not. It might be the case that the way to establish rules of the road will not be through First Amendment-case litigation. Maybe we need Congress to step in and write the rules, or there needs to be some kind of agency self-regulation. But I think it’s all going to have to ultimately be viewed through a First Amendment lens. This order and injunction go way too far, but I think the case is at least useful in starting a debate. Because up until now we’ve been stuck in this arena where there are important free-speech values that are at stake and no one is really doing much to protect them.
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Police and protesters in Ferguson, Missouri. (photo: TIME)
A poet redacts the Department of Justice investigation of police bias and brutality in Ferguson, Missouri, revealing larger lyric insights about American life.
African Americans’ views of FPD are shaped not just by what FPD officers do, but by how they do it. During our investigation, dozens of African Americans in Ferguson told us of verbal abuse by FPD officers during routine interactions, and these accounts are consistent with complaints people have made about FPD for years. In December 2011, for example, an African-American man alleged that as he was standing outside of Wal-Mart, an officer called him a “stupid motherf****r” and a “bastard.” According to the man, a lieutenant was on the scene and did nothing to reproach the officer, instead threatening to arrest the man. In April 2012, officers allegedly called an African-American woman a “bitch” and a “mental case” at the jail following an arrest. In June 2011, a 60-year-old man complained that an officer verbally harassed him while he stood in line to see the judge in municipal court. According to the man, the officer repeatedly ordered him to move forward as the line advanced and, because he did not advance far enough, turned to the other court-goers and joked, “he is hooked on phonics.”
Another concern we heard from many African-American residents, and saw in the files we reviewed, was of casual intimidation by FPD officers, including threats to draw or fire their weapons, often for seemingly little or no cause. In September 2012, a 28-year resident of Ferguson complained to FPD about a traffic stop during which a lieutenant approached with a loud and confrontational manner with his hand on his holstered gun. The resident, who had a military police background, noted that the lieutenant’s behavior, especially having his hand on his gun, ratcheted up the tension level, and he questioned why the lieutenant had been so aggressive. In another incident captured on video and discussed below in more detail, an officer placed his gun on a wall or post and pointed it back and forth to each of two store employees as he talked to them while they took the trash out late one night. In another case discussed above, a person reported that an FPD officer removed his ECW during a traffic stop and continuously tapped the ECW on the roof of the person’s car. These written complaints reported to FPD are consistent with complaints we heard from community members during our investigation about officers casually threatening to hurt or even shoot them.
It appears that many police and City officials were unaware of this distrust and fear of Ferguson police among African Americans prior to August 2014. Ferguson’s Chief, for example, told us that prior to the Michael Brown shooting he thought community-police relations were good. During our investigation, however, City and police leadership, and many officers of all ranks, acknowledged a deep divide between police and some Ferguson residents, particularly black residents. Mayor Knowles acknowledged that there is “clearly mistrust” of FPD by many community members, including a “systemic problem” with youth not wanting to work with police. One FPD officer estimated that about a quarter of the Ferguson community distrusts the police department.
A growing body of research, alongside decades of police experience, is consistent with what our investigation found in Ferguson: that when police and courts treat people unfairly, unlawfully, or disrespectfully, law enforcement loses legitimacy in the eyes of those who have experienced, or even observed, the unjust conduct. See, e.g., Tom R. Tyler … Yuen J. Huo, Trust in the Law: Encouraging Public Cooperation with the Police and Courts (2002). Further, this loss of legitimacy makes individuals more likely to resist enforcement efforts and less likely to cooperate with law enforcement efforts to prevent and investigate crime. See, e.g., Jason Sunshine … Tom R. Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing, 37 Law … Soc’y Rev. 513, 534-36 (2003); Promoting Cooperative Strategies to Reduce Racial Profiling 20-21 (U.S. Dep’t of Justice, Office of Community Oriented Policing Services, 2008) (“Being viewed as fair and just is critical to successful policing in a democracy. When the police are perceived as unfair in their enforcement, it will undermine their effectiveness.”); Ron Davis et al., Exploring the Role of the Police in Prisoner Reentry 13-14 (Nat’l Inst. of Justice, New Perspectives in Policing, July 2012) (“Increasingly, research is supporting the notion that legitimacy is an important factor in the effectiveness of law, and the establishment and maintenance of legitimacy are particularly important in the context of policing.”) (citations omitted). To improve community trust and police effectiveness, Ferguson must ensure not only that its officers act in accord with the Constitution, but that they treat people fairly and respectfully.
- FPD’s Exercise of Discretion, Even When Lawful, Often Undermines Community Trust and Public Safety
Even where lawful, many discretionary FPD enforcement actions increase distrust and significantly decrease the likelihood that individuals will seek police assistance even when they are victims of crime, or that they will cooperate with the police to solve or prevent other crimes. Chief Jackson told us “we don’t get cooperating witnesses” from the apartment complexes. Consistent with this statement, our review of documents and our conversations with Ferguson residents revealed many instances in which they are reluctant to report being victims of crime or to cooperate with police, and many instances in which FPD imposed unnecessary negative consequences for doing so.
In one instance, for example, a woman called FPD to report a domestic disturbance. By the time the police arrived, the woman’s boyfriend had left. The police looked through the house and saw indications that the boyfriend lived there. When the woman told police that only she and her brother were listed on the home’s occupancy permit, the officer placed the woman under arrest for the permit violation and she was jailed. In another instance, after a woman called police to report a domestic disturbance and was given a summons for an occupancy permit violation, she said, according to the officer’s report, that she “hated the Ferguson Police Department and will never call again, even if she is being killed.”
In another incident, a young African-American man was shot while walking on the road with three friends. The police department located and interviewed two of the friends about the shooting. After the interview, they arrested and jailed one of these cooperating witnesses, who was 19 years old, on an outstanding municipal warrant.
We also reviewed many instances in which FPD officers arrested individuals who sought to care for loved ones who had been hurt. In one instance from May 2014, for example, a man rushed to the scene of a car accident involving his girlfriend, who was badly injured and bleeding profusely when he arrived. He approached and tried to calm her. When officers arrived they treated him rudely, according to the man, telling him to move away from his girlfriend, which he did not want to do. They then immediately proceeded to handcuff and arrest him, which, officers assert, he resisted. EMS and other officers were not on the scene during this arrest, so the accident victim remained unattended, bleeding from her injuries, while officers were arresting the boyfriend. Officers charged the man with five municipal code violations (Resisting Arrest, Disorderly Conduct, Assault on an Officer, Obstructing Government Operations, and Failure to Comply) and had his vehicle towed and impounded. In an incident from 2013, a woman sought to reach her fiancé, who was in a car accident. After she refused to stay on the sidewalk as the officer ordered, she was arrested and jailed. While it is sometimes both essential and difficult to keep distraught family from being in close proximity to their loved ones on the scene of an accident, there is rarely a need to arrest and jail them rather than, at most, detain them on the scene.
Rather than view these instances as opportunities to convey their compassion for individuals at times of crisis even as they maintain order, FPD appears instead to view these and similar incidents we reviewed as opportunities to issue multiple citations and make arrests. For very little public safety benefit, FPD loses opportunities to build community trust and respect, and instead further alienates potential allies in crime prevention. - FPD’s Failure to Respond to Complaints of Officer Misconduct Further Erodes Community Trust
Public trust has been further eroded by FPD’s lack of any meaningful system for holding officers accountable when they violate law or policy. Through its system for taking, investigating, and responding to misconduct complaints, a police department has the opportunity to demonstrate that officer misconduct is unacceptable and unrepresentative of how the law enforcement agency values and treats its constituents. In this way, a police department’s internal affairs process provides an opportunity for the department to restore trust and affirm its legitimacy. Similarly, misconduct investigations allow law enforcement the opportunity to provide community members who have been mistreated a constructive, effective way to voice their complaints. And, of course, effective internal affairs processes can be a critical part of correcting officer behavior, and improving police training and policies.
Ferguson’s internal affairs system fails to respond meaningfully to complaints of officer misconduct. It does not serve as a mechanism to restore community members’ trust in law enforcement, or correct officer behavior. Instead, it serves to contrast FPD’s tolerance for officer misconduct against the Department’s aggressive enforcement of even minor municipal infractions, lending credence to a sentiment that we heard often from Ferguson residents: that a “different set of rules” applies to Ferguson’s police than to its African-American residents, and that making a complaint about officer misconduct is futile.
Despite the statement in FPD’s employee misconduct investigation policy that “[t]he integrity of the police department depends on the personal integrity and discipline of each employee,” FPD has done little to investigate external allegations that officers have not followed FPD policy or the law, or, with a few notable exceptions, to hold officers accountable when they have not. Ferguson Police Department makes it difficult to make complaints about officer conduct, and frequently assumes that the officer is telling the truth and the complainant is not, even where objective evidence indicates that the reverse is true.
It is difficult for individuals to make a misconduct complaint against an officer in Ferguson, in part because Ferguson both discourages individuals from making complaints and discourages City and police staff from accepting them. In a March 2014 email, for example, a lieutenant criticized a sergeant for taking a complaint from a man on behalf of his mother, who stayed in her vehicle outside the police station. Despite the fact that Ferguson policy requires that complaints be taken “from any source, identified or anonymous,” the lieutenant stated “I would have had him bring her in, or leave.” In another instance, a City employee took a complaint of misconduct from a Ferguson resident and relayed it to FPD. An FPD captain sent an email in response that the City employee viewed as being “lectured” for taking the complaint. The City Manager agreed, calling the captain’s behavior “not only disrespectful and unacceptable, but it is dangerous in [that] it is inciteful [sic] and divisive.” Nonetheless, there appeared to be no follow-up action regarding the captain, and the complaint was never logged as such or investigated.
While official FPD policy states clearly that officers must “never attempt to dissuade any citizen from lodging a complaint,” FPD General Order 301.3, a contrary leadership message speaks louder than policy. This message is reflected in statements by officers that indicate a need to justify their actions when they do accept a civilian complaint. In one case, a sergeant explained: “Nothing I could say helped, he demanded the complaint forms which were provided.” In another: “I spoke to [two people seeking to make a complaint] . . . but after the conversation, neither had changed their mind and desired still to write out a complaint.” We saw many instances in which people complained of being prevented from making a complaint, with no indication that FPD investigated those allegations. In one instance, for example, a man alleging significant excessive force reported the incident to a commander after being released from jail, stating that he was unable to make his complaint earlier because several diffferent officers refused to let him speak to a sergeant to make a complaint about the incident and threatened to keep him in jail longer if he did not stop asking to make a complaint.
Some individuals also fear that they will suffer retaliation from officers if they report misconduct or even merely speak out as witnesses when approached by someone from FPD investigating a misconduct complaint. For instance, in one case FPD acknowledged that a witness to the misconduct was initially reluctant to complete a written statement supporting the complainant because he wanted no “repercussions” from the subject officer or other officers. In another case involving alleged misconduct at a retail store that we have already described, the store’s district manager told the commander he did not want an investigation—despite how concerned he was by video footage showing an officer training his gun on two store employees as they took out the trash—because he wanted to “stay on the good side” of the police.
Even when individuals do report misconduct, there is a significant likelihood it will not be treated as a complaint and investigated. In one case, FPD failed to open an investigation of an allegation made by a caller who said an officer had kicked him in the side of the head and stepped on his head and back while he was face down with his hands cuffed behind his back, all the while talking about having blood on him from somebody else and “being tired of the B.S.” The officer did not stop until the other officer on the scene said words to the effect of, “[h]ey, he’s not fighting he’s cuffed.” The man alleged that the officer then ordered him to “get the f*** up” and lifted him by the handcuffs, yanking his arms backward. The commander taking the call reported that the man stated that he supported the police and knew they had a tough job but was reporting the incident because it appeared the officer was under a lot of stress and needed counseling, and because he was hoping to prevent others from having the experience he did. The commander’s email regarding the incident expressed no skepticism about the veracity of the caller’s report and was able to identify the incident (and thus the involved officers). Yet FPD did not conduct an internal affairs investigation of this incident, based on our review of all of FPD’s internal investigation files. There is not even an indication that a use-of-force report was completed.
In another case, an FPD commander wrote to a sergeant that despite a complainant being “pretty adamant that she was profiled and that the officer was rude,” the commander “didn’t even bother to send it to the chief for a control number” before hearing the sergeant’s account of the officer’s side of the story. Upon getting the officer’s account second hand from the sergeant, the commander forwarded the information to the Police Chief so that it could be “filed in the non-complaint file.” FPD officers and commanders also often seek to frame complaints as being entirely related to complainants’ guilt or innocence, and therefore not subject to a misconduct investigation, even though the complaint clearly alleges officer misconduct. In one instance, for example, commanders told the complainant to go to court to fight her arrest, ignoring the complainant’s statement that the officer arrested her for Disorderly Conduct and Failure to Obey only after she asked for the officer’s name. In another instance, a commander stated that the complainant made no allegations unrelated to the merits of the arrest, even though the complainant alleged rudeness and being “intimidated” during arrest, among a number of other non-guilt related allegations.
FPD appears to intentionally not treat allegations of misconduct as complaints even where it believes that the officer in fact committed the misconduct. In one incident, for example, a supervisor wrote an email directly to an officer about a complaint the Police Chief had received about an officer speeding through the park in a neighboring town. The supervisor informed the officer that the Chief tracked the car number given by the complainant back to the officer, but assured the officer that the supervisor’s email was “[j]ust for your information. No need to reply and there is no record of this other than this email.” In another instance referenced above, the district manager of a retail store called a commander to tell him that he had a video recording that showed an FPD officer pull up to the store at about midnight while two employees were taking out the trash, take out his weapon, and put it on top of a concrete wall, pointed at the two employees. When the employees said they were just taking out the trash and asked the officer if he needed them to take off their coats so that he could see their uniforms, the officer told the employees that he knew they were employees and that if he had not known “I would have put you on the ground.” The commander related in an email to the sergeant and lieutenant that “there is no reason to doubt the Gen. Manager because he said he watched the video and he clearly saw a weapon—maybe the sidearm or the taser.” Nonetheless, despite noting that “we don’t need cowboy” and the “major concern” of the officer taking his weapon out of his holster and placing it on a wall, the commander concluded, “[n]othing for you to do with this other than make a mental note and for you to be on the lookout for that kind of behavior.”
In another case, an officer investigating a report of a theft at a dollar store interrogated a minister pumping gas into his church van about the theft. The man alleged that he provided his identification to the officer and offered to return to the store to prove he was not the thief. The officer instead handcuffed the man and drove him to the store. The store clerk reported that the detained man was not the thief, but the officer continued to keep the man cuffed, allegedly calling him “f*****g stupid” for asking to be released from the cuffs. The man went directly to FPD to file a complaint upon being released by the officer. FPD conducted an investigation but, because the complainant did not respond to a cell phone message left by the investigator within 13 days, reclassified the complaint as “withdrawn,” even as the investigator noted that the complaint of improper detention would otherwise have been sustained, and noted that the “[e]mployee has been counseled and retraining is forthcoming.” In still another case, a lieutenant of a neighboring agency called FPD to report that a pizza parlor owner had complained to him that an off-duty FPD officer had become angry upon being told that police discounts were only given to officers in uniform and said to the restaurant owner as he was leaving, “I hope you get robbed!” The allegation was not considered a complaint and instead, despite its seriousness, was handled through counseling at the squad level.
Even where a complaint is actually investigated, unless the complaint is made by an FPD commander, and sometimes not even then, FPD consistently takes the word of the officer over the word of the complainant, frequently even where the officer’s version of events is clearly at odds with the objective evidence. On the rare occasion that FPD does sustain an external complaint of officer misconduct, the discipline it imposes is generally too low to be an effective deterrent.
Our investigation raised concerns in particular about how FPD responds to untruthfulness by officers. In many departments, a finding of untruthfulness pursuant to internal investigation results in an officer’s termination because the officer’s credibility on police reports and in providing testimony is subsequently subject to challenge. In FPD, untruthfulness appears not even to always result in a formal investigation, and even where sustained, has little effect. In one case we reviewed, FPD sustained a charge of untruthfulness against an officer after he was found to have lied to the investigator about whether he had engaged in an argument with a civilian over the loudspeaker of his police vehicle. FPD imposed only a 12-hour suspension on the officer. In addition, FPD appears not to have taken the officer’s untruthfulness into sufficient account in several subsequent complaints, including in at least one case in which the complainant alleged conduct very similar to that alleged in the case in which FPD found the officer untruthful. Nor, as discussed above, has FPD or the City disclosed this information to defendants challenging charges brought by the officer. In another case a supervisor was sustained for false testimony during an internal affairs investigation and was given a written reprimand. In another case in which an officer was clearly untruthful, FPD did not sustain the charge. In that case, an officer in another jurisdiction was assigned to monitor an intersection in that city because an FPD-marked vehicle allegedly had repeatedly been running the stop sign at that intersection. While at that intersection, and while receiving a complaint from a person about the FPD vehicle, the officer saw that very vehicle “dr[iving] through the stop sign without tapping a brake,” according to a sergeant with the other jurisdiction. When asked to respond to these allegations, the officer wrote, unequivocally, “I assure you I don’t run stop signs.” It is clear from the investigative file that FPD found that he did, in fact, run stop signs, as the officer was given counseling. Nonetheless, the officer received a counseling memo that made no mention of the officer’s written denial of the misconduct observed by another law enforcement officer. This officer continues to write reports regarding significant uses of force, several of which our investigation found questionable.
By failing to hold officers accountable, FPD leadership sends a message that FPD officers can behave as they like, regardless of law or policy, and even if caught, that punishment will be light. This message serves to condone officer misconduct and fuel community distrust. - FPD’s Lack of Community Engagement Increases the Likelihood of Discriminatory Policing and Damages Public Trust
Alongside its divisive law enforcement practices and lack of meaningful response to community concerns about police conduct, FPD has made little effort in recent years to employ community policing or other community engagement strategies. This lack of community engagement has precluded the possibility of bridging the divide caused by Ferguson’s law enforcement practices, and has increased the likelihood of discriminatory policing.
Community policing and related community engagement strategies provide the opportunity for officers and communities to work together to identify the causes of crime and disorder particular to their community, and to prioritize law enforcement efforts. See Community Policing Defined 1-16 (U.S. Dep’t of Justice, Office of Community Oriented Policing Services, 2014). The focus of these strategies—in stark contrast to Ferguson’s current law enforcement approach—is on crime prevention rather than on making arrests. See Effective Policing and Crime Prevention: A Problem Oriented Guide for Mayors, City Managers, and County Executives 1-62 (U.S. Dep’t of Justice, Office of Community Oriented Policing Services, 2009). When implemented fully, community policing creates opportunities for officers and community members to have frequent, positive interactions with each other, and requires officers to partner with communities to solve particular public safety problems that, together, they have decided to address. Research and experience show that community policing can be more effective at crime prevention and at making people feel safer. See Gary Cordner, Reducing Fear of Crime: Strategies for Police 47 (U.S. Dep’t of Justice, Office of Community Oriented Policing Services, Jan. 2010) (“Most studies of community policing have found that residents like community policing and feel safer when it is implemented where they live and work.”) (citations omitted).
Further, research and law enforcement experience show that community policing and engagement can overcome many of the divisive dynamics that disconnected Ferguson residents and City leadership alike describe, from a dearth of positive interactions to racial stereotyping and racial violence. See, e.g., Glaser, supra, at 207-11 (discussing research showing that community policing and similar approaches can help reduce racial bias and stereotypes and improve community relations); L. Song Richardson … Phillip Atiba Goff, Interrogating Racial Violence, 12 Ohio St. J. of Crim. L. 115, 143-47 (2014) (describing how fully implemented and inclusive community policing can help avoid racial stereotyping and violence); Strengthening the Relationship Between Law Enforcement and Communities of Color: Developing an Agenda for Action 1-20 (U.S. Dep’t of Justice, Office of Community Oriented Policing Services, 2014).
Ferguson’s community policing efforts appear always to have been somewhat modest, but have dwindled to almost nothing in recent years. FPD has no community policing or community engagement plan. FPD currently designates a single officer the “Community Resource Officer.” This officer attends community meetings, serves as FPD’s public relations liaison, and is charged with collecting crime data. No other officers play any substantive role in community policing efforts. Officers we spoke with were fairly consistent in their acknowledgment of this, and of the fact that this move away from community policing has been due, at least in part, to an increased focus on code enforcement and revenue generation in recent years. As discussed above, our investigation found that FPD redeployed officers to 12-hour shifts, in part for revenue reasons. There is some evidence that community policing is more difficult to carry out when patrol officers are on 12-hour shifts, and this appears to be the case in Ferguson. While many officers in Ferguson support 12-hour shifts, several told us that the 12-hour shift has undermined community policing. One officer said that “FPD used to have a strong community policing ethic—then we went to a 12-hour day.” Another officer told us that the 12-hour schedule, combined with a lack of any attempt to have officers remain within their assigned area, has resulted in a lack of any geographical familiarity by FPD officers. This same officer told us that it is viewed as more positive to write tickets than to “talk with your businesses.” Another officer told us that FPD officers should put less energy into writing tickets and instead “get out of their cars” and get to know community members.
One officer told us that officers could spend more time engaging with community members and undertaking problem-solving projects if FPD officers were not so focused on activities that generate revenue. This officer told us, “everything’s about the courts . . . the court’s enforcement priorities are money.” Another officer told us that officers cannot “get out of the car and play basketball with the kids,” because “we’ve removed all the basketball hoops— there’s an ordinance against it.” While one officer told us that there was a police substation in Canfield Green when FPD was more committed to community policing, another told us that now there is “nobody in there that anybody knows.”
City and police officials note that there are several active neighborhood groups in Ferguson. We reached out to each of these during our investigation and met with each one that responded. Some areas of Ferguson are well-represented by these groups. But City and police officials acknowledge that, since August 2014, they have realized that there are entire segments of the Ferguson community that they have never made an effort to know, especially African Americans who live in Ferguson’s large apartment complexes, including Canfield Green. While some City officials appear well-intentioned, they have also been too quick to presume that outreach to more disconnected segments of the Ferguson community will be futile. One City employee told us, “they think they do outreach, but they don’t,” and that some Ferguson residents do not even realize their homes are in Ferguson. Our investigation indicated that, while the City and police department may have to use different strategies for engagement in some parts of Ferguson than in others, true community policing efforts can have positive results. As an officer who has patrolled the area told us, “most of the people in Canfield are good people. They just don’t have a lot of time to get involved.” - Ferguson’s Lack of a Diverse Police Force Further Undermines Community Trust
While approximately two-thirds of Ferguson’s residents are African American, only four of Ferguson’s 54 commissioned police officers are African American. Since August 2014, there has been widespread discussion about the impact this comparative lack of racial diversity within FPD has on community trust and police behavior. During this investigation we also heard repeated complaints about FPD’s lack of racial diversity from members of the Ferguson community. Our investigation indicates that greater diversity within Ferguson Police Department has the potential to increase community confidence in the police department, but may only be successful as part of a broader police reform effort.
While it does appear that a lack of racial diversity among officers decreases African Americans’ trust in a police department, this observation must be qualified. Increasing a police department’s racial diversity does not necessarily increase community trust or improve officer conduct. There appear to be many reasons for this. One important reason is that African-American officers can abuse and violate the rights of African-American civilians, just as white officers can. And African-American officers who behave abusively can undermine community trust just as white officers can. Our investigation indicates that in Ferguson, individual officer behavior is largely driven by a police culture that focuses on revenue generation and is infected by race bias. While increased vertical and horizontal diversity, racial and otherwise, likely is necessary to change this culture, it probably cannot do so on its own.
Consistent with our findings in Ferguson and other departments, research more broadly shows that a racially diverse police force does not guarantee community trust or lawful policing. See Diversity in Law Enforcement: A Literature Review 4 n.v. (U.S. Dep’t of Justice, Civil Rights Division, Office of Justice Programs, … U.S. Equal Employment Opportunity Commission, Submission to President’s Task Force on 21st Century Policing, Jan. 2015). The picture is far more complex. Some studies show that African-American officers are less prejudiced than white officers as a whole, are more familiar with African-American communities, are more likely to arrest white suspects and less likely to arrest black suspects, and receive more cooperation from African Americans with whom they interact on the job. See David A. Sklansky, Not Your Father’s Police Department: Making Sense of the New Demographics of Law Enforcement, 96 J. Crim. L. … Criminology 1209, 1224-25 (2006). But studies also show that African Americans are equally likely to fire their weapons, arrest people, and have complaints made about their behavior, and sometimes harbor prejudice against African-American civilians themselves. Id.
While a diverse police department does not guarantee a constitutional one, it is nonetheless critically important for law enforcement agencies, and the Ferguson Police Department in particular, to strive for broad diversity among officers and civilian staff. In general, notwithstanding the above caveats, a more racially diverse police department has the potential to increase confidence in police among African Americans in particular. See Joshua C. Cochran … Patricia Y. Warren, Racial, Ethnic, and Gender Differences in Perceptions of the Police: The Salience of Officer Race Within the Context of Racial Profiling, 28(2) J. Contemp. Crim. Just. 206, 206-27 (2012). In addition, diversity of all types—including race, ethnicity, sex, national origin, religion, sexual orientation and gender identity—can be beneficial both to police-community relationships and the culture of the law enforcement agency. Increasing gender and sexual orientation diversity in policing in particular may be critical in re-making internal police culture and creating new assumptions about what makes policing effective. See, e.g., Sklansky, supra, at 1233-34; Richardson … Goff, supra, at 143-47; Susan L. Miller, Kay B. Forest, … Nancy C. Jurik, Diversity in Blue, Lesbian and Gay Police Officers in a Masculine Occupation, 5 Men and Masculinities 355, 355-85 (Apr. 2003). Moreover, aside from the beneficial impact a diverse police force may have on the culture of the department and police-community relations, police departments are obligated under law to provide equal opportunity for employment. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Our investigation indicates that Ferguson can and should do more to attract and hire a more diverse group of qualified police officers. However, for these efforts to be successful at increasing the diversity of its workforce, as well as effective at increasing community trust and improving officer behavior, they must be part of a broader reform effort within FPD. This reform effort must focus recruitment efforts on attracting qualified candidates of all demographics with the skills and temperament to police respectfully and effectively, and must ensure that all officers—regardless of race—are required to police lawfully and with integrity.
V. CHANGES NECESSARY TO REMEDY FERGUSON’S UNLAWFUL LAW ENFORCEMENT PRACTICES AND REPAIR COMMUNITY TRUST
The problems identified within this letter reflect deeply entrenched practices and priorities that are incompatible with lawful and effective policing and that damage community trust. Addressing those problems and repairing the City’s relationship with the community will require a fundamental redirection of Ferguson’s approach to law enforcement, including the police and court practices that reflect and perpetuate this approach.
Below we set out broad recommendations for changes that Ferguson should make to its police and court practices to correct the constitutional violations our investigation identified. Ensuring meaningful, sustainable, and verifiable reform will require that these and other measures be part of a court-enforceable remedial process that includes involvement from community stakeholders as well as independent oversight. In the coming weeks, we will seek to work with the City of Ferguson toward developing and reaching agreement on an appropriate framework for reform. - Ferguson Police Practices
- Implement a Robust System of True Community Policing
Many of the recommendations included below would require a shift from policing to raise revenue to policing in partnership with the entire Ferguson community. Developing these relationships will take time and considerable effort. FPD should: - Develop and put into action a policy and detailed plan for comprehensive implementation of community policing and problem-solving principles. Conduct outreach and involve the entire community in developing and implementing this plan;
- Increase opportunities for officers to have frequent, positive interactions with people outside of an enforcement context, especially groups that have expressed high levels of distrust of police. Such opportunities may include police athletic leagues and similar informal activities;
- Develop community partnerships to identify crime prevention priorities, with a focus on disconnected areas, such as Ferguson’s apartment complexes, and disconnected groups, such as much of Ferguson’s African-American youth;
- Modify officer deployment patterns and scheduling (such as moving away from the current 12-hour shift and assigning officers to patrol the same geographic areas consistently) to facilitate participating in crime prevention projects and familiarity with areas and people;
- Train officers on crime-prevention, officer safety, and anti-discrimination advantages of community policing. Train officers on mechanics of community policing and their role in implementing it;
- Measure and evaluate individual, supervisory, and agency police performance on community engagement, problem-oriented-policing projects, and crime prevention, rather than on arrest and citation productivity.
- Focus Stop, Search, Ticketing and Arrest Practices on Community Protection
FPD must fundamentally change the way it conducts stops and searches, issues citations and summonses, and makes arrests. FPD officers must be trained and required to abide by the law. In addition, FPD enforcement efforts should be reoriented so that officers are required to take enforcement action because it promotes public safety, not simply because they have legal authority to act. To do this, FPD should: - Prohibit the use of ticketing and arrest quotas, whether formal or informal;
- Require that officers report in writing all stops, searches and arrests, including pedestrian stops, and that their reports articulate the legal authority for the law enforcement action and sufficient description of facts to support that authority;
- Require documented supervisory approval prior to:
- Issuing any citation/summons that includes more than two charges;
- Making an arrest on any of the following charges:
- Failure to Comply/Obey;
- Resisting Arrest;
- Disorderly Conduct/Disturbing the Peace;
- Obstruction of Government Operations;
- Arresting or ticketing an individual who sought police aid, or who is cooperating with police in an investigation;
- Arresting on a municipal warrant or wanted;
- Revise Failure to Comply municipal code provision to bring within constitutional limits, and provide sufficient guidance so that all stops, citations, and arrests based on the provision comply with the Constitution;
- Train officers on proper use of Failure to Comply charge, including elements of the offense and appropriateness of the charge for interference with police activity that threatens public safety;
- Require that applicable legal standards are met before officers conduct pat-downs or vehicle searches. Prohibit searches based on consent for the foreseeable future;
- Develop system of correctable violation, or “fix-it” tickets, and require officers to issue fix-it tickets wherever possible and absent contrary supervisory instruction;
- Develop and implement policy and training regarding appropriate police response to activities protected by the First Amendment, including the right to observe, record, and protest police action;
- Provide initial and regularly recurring training on Fourth Amendment constraints on police action, as well as responsibility within FPD to constrain action beyond what Fourth Amendment requires in interest of public safety and community trust;
- Discontinue use of “wanteds” or “stop orders” and prohibit officers from conducting stops, searches, or arrests on the basis of “wanteds” or “stop orders” issued by other agencies.
- Increase Tracking, Review, and Analysis of FPD Stop, Search, Ticketing and Arrest Practices
At the first level of supervision and as an agency, FPD must review more stringently officers’ stop, search, ticketing, and arrest practices to ensure that officers are complying with the Constitution and department policy, and to evaluate the impact of officer activity on police legitimacy and community trust. FPD should: - Develop and implement a plan for broader collection of stop, search, ticketing, and arrest data that includes pedestrian stops, enhances vehicle stop data collection, and requires collection of data on all stop and post-stop activity, as well as location and demographic information;
- Require supervisors to review all officer activity and review all officer reports before the supervisor leaves shift;
- Develop and implement system for review of stop, search, ticketing, and arrest data at supervisory and agency level to detect problematic trends and ensure consistency with public safety and community policing goals;
- Analyze race and other disparities shown in stop, search, ticketing, and arrest practices to determine whether disparities can be reduced consistent with public safety goals.
- Change Force Use, Reporting, Review, and Response to Encourage De-Escalation and the Use of the Minimal Force Necessary in a Situation
FPD should reorient officers’ approach to using force by ensuring that they are trained and skilled in using tools and tactics to de-escalate situations, and incentivized to avoid using force wherever possible. FPD also should implement a system of force review that ensures that improper force is detected and responded to effectively, and that policy, training, tactics, and officer safety concerns are identified. FPD should: - Train and require officers to use de-escalation techniques wherever possible both to avoid a situation escalating to where force becomes necessary, and to avoid unnecessary force even where it would be legally justified. Training should include tactics for slowing down a situation to increase available options;
- Require onsite supervisory approval before deploying any canine, absent documented exigent circumstances; require and train canine officers to take into account the nature and severity of the alleged crime when deciding whether to deploy a canine to bite; require and train canine officers to avoid sending a canine to apprehend by biting a concealed suspect when the objective facts do not suggest the suspect is armed and a lower level of force reasonably can be expected to secure the suspect;
- Place more stringent limits on use of ECWs, including limitations on multiple ECW cycles and detailed justification for using more than one cycle;
- Retrain officers in use of ECWs to ensure they view and use ECWs as a tool of necessity, not convenience. Training should be consistent with principles set out in the 2011 ECW Guidelines;
- Develop and implement use-of-force reporting that requires the officer using force to complete a narrative, separate from the offense report, describing the force used with particularity, and describing with specificity the circumstances that required the level of force used, including the reason for the initial stop or other enforcement action. Some levels of force should require all officers observing the use of force to complete a separate force narrative;
- Develop and implement supervisory review of force that requires the supervisor to conduct a complete review of each use of force, including gathering and considering evidence necessary to understand the circumstances of the force incident and determine its consistency with law and policy, including statements from individuals against whom force is used and civilian witnesses;
- Prohibit supervisors from reviewing or investigating a use of force in which they participated or directed;
- Ensure that complete use-of-force reporting and review/investigation files—including all offense reports, witness statements, and medical, audio/video, and other evidence—are kept together in a centralized location;
- Develop and implement a system for higher-level, inter-disciplinary review of some types of force, such as lethal force, canine deployment, ECWs, and force resulting in any injury;
- Improve collection, review, and response to use-of-force data, including information regarding ECW and canine use;
- Implement system of zero tolerance for use of force as punishment or retaliation rather than as necessary, proportionate response to counter a threat;
- Discipline officers who fail to report force and supervisors who fail to conduct adequate force investigations;
- Identify race and other disparities in officer use of force and develop strategies to eliminate avoidable disparities;
- Staff jail with at least two correctional officers at all times to ensure safety and minimize need for use of force in dealing with intoxicated or combative prisoners. Train correctional officers in de-escalation techniques with specific instruction and training on minimizing force when dealing with intoxicated and combative prisoners, as well as with passive resistance and noncompliance.
- Implement Policies and Training to Improve Interactions with Vulnerable People
Providing officers with the tools and training to better respond to persons in physical or mental health crisis, and to those with intellectual disabilities, will help avoid unnecessary injuries, increase community trust, and make officers safer. FPD should: - Develop and implement policy and training for identifying and responding to individuals with known or suspected mental health conditions, including those observably in mental health crisis, and those with intellectual or other disabilities;
- Provide enhanced crisis intervention training to a subset of officers to allow for ready availability of trained officers on the scenes of critical incidents involving individuals with mental illness;
- Require that, wherever possible, at least one officer with enhanced crisis intervention training respond to any situation concerning individuals in mental health crisis or with intellectual disability, when force might be used;
- Provide training to officers regarding how to identify and respond to more commonly occurring medical emergencies that may at first appear to reflect a failure to comply with lawful orders. Such medical emergencies may include, for example, seizures and diabetic emergencies.
- Change Response to Students to Avoid Criminalizing Youth While Maintaining a Learning Environment
FPD has the opportunity to profoundly impact students through its SRO program. This program can be used as a way to build positive relationships with youth from a young age and to support strategies to keep students in school and learning. FPD should: - Work with school administrators, teachers, parents, and students to develop and implement policy and training consistent with law and best practices to more effectively address disciplinary issues in schools. This approach should be focused on SROs developing positive relationships with youth in support of maintaining a learning environment without unnecessarily treating disciplinary issues as criminal matters or resulting in the routine imposition of lengthy suspensions;
- Provide initial and regularly recurring training to SROs, including training in mental health, counseling, and the development of the teenage brain;
- Evaluate SRO performance on student engagement and prevention of disturbances, rather than on student arrests or removals;
- Regularly review and evaluate incidents in which SROs are involved to ensure they meet the particular goals of the SRO program; to identify any disparate impact or treatment by race or other protected basis; and to identify any policy, training, or equipment concerns.
- Implement Measures to Reduce Bias and Its Impact on Police Behavior
Many of the recommendations listed elsewhere have the potential to reduce the level and impact of bias on police behavior (e.g., increasing positive interactions between police and the community; increasing the collection and analysis of stop data; and increasing oversight of the exercise of police discretion). Below are additional measures that can assist in this effort. FPD should: - Provide initial and recurring training to all officers that sends a clear, consistent and emphatic message that bias-based profiling and other forms of discriminatory policing are prohibited. Training should include:
- Relevant legal and ethical standards;
- Information on how stereotypes and implicit bias can infect police work;
- The importance of procedural justice and police legitimacy on community trust, police effectiveness, and officer safety;
- The negative impacts of profiling on public safety and crime prevention;
- Provide training to supervisors and commanders on detecting and responding to bias-based profiling and other forms of discriminatory policing;
- Include community members from groups that have expressed high levels of distrust of police in officer training;
- Take steps to eliminate all forms of workplace bias from FPD and the City.
- Improve and Increase Training Generally
FPD officers receive far too little training as recruits and after becoming officers. Officers need a better knowledge of what law, policy, and integrity require, and concrete training on how to carry out their police responsibilities. In addition to the training specified elsewhere in these recommendations, FPD should: - Significantly increase the quality and amount of all types of officer training, including recruit, field training (including for officers hired from other agencies), and in-service training;
- Require that training cover, in depth, constitutional and other legal restrictions on officer action, as well as additional factors officers should consider before taking enforcement action (such as police legitimacy and procedural justice considerations);
- Employ scenario-based and adult-learning methods.
- Increase Civilian Involvement in Police Decision Making
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"My opinion of a white nationalist, if someone wants to call them white nationalist, to me, is an American. It's an American," Sen. Tommy Tuberville (R-AL) said in a TV interview Monday night. (photo: Jabin Botsford/WP)
Republican Sen. Tommy Tuberville walked back his defense of “white nationalists,” but let’s be very clear—the hood is off.
I was off by a year. It seems the record-breaking summer heat has finally forced some elected officials to take off their hoods.
Speaking of Sen. Tommy Tuberville (R-AL), the former football coach finally admitted that “white nationalists are racists” on Tuesday after receiving withering national criticism and pushback from Democratic leaders, such as Sen. Chuck Schumer (D-NY), for his repeated failure to denounce white nationalism during a CNN interview the night before.
A few hours earlier, however, Tuberville was fine defending an extremist movement that has been responsible for centuries of violence and hate in America, telling reporters, “I’m totally against racism. If the Democrats want to say that white nationalists are racists, I’m totally against that, too.”
Tuberville’s sudden turn-about was most likely a result of marching orders he received from GOP leaders like Sen. Mitch McConnell (R-KY), who have long known that racism is a dish best served with dog whistles and attacks on “wokeness.” McConnell showed Tuberville how it’s done when he told reporters, “White supremacy is simply unacceptable in the military and in our whole country.”
It is, however, totally acceptable in the modern GOP. It seems Tuberville’s only mistake was being brutally honest.
During his Monday night interview with CNN host Kaitlin Collins, Tuberville—who couldn’t identify the three branches of government after he was elected to the Senate—repeatedly pushed back against Collins’ accurate description of white nationalists as racists. For Tuberville, a white nationalist is simply “an American” who “holds different beliefs.”
Ultimately, the end goal of white nationalists is to transform the United States into an ethnostate in which the white race rules over the rest of us. Those are the same beliefs of the “very fine people" who gathered in Charlottesville chanting “The Jews will not replace us,” before one of them, a Nazi, murdered anti-racist protester Heather Heyer. (Former President Donald Trump infamously blamed “many sides” for the violence.)
Tuberville did his best Trump impression on CNN. Specifically, he invoked The Dude card from The Big Lebowski, responding to Collins with “well, that’s your opinion,” when she repeatedly challenged his warped definition. (White nationalism apparently now joins climate change, the efficacy of vaccines, and a round Earth as matters of “opinion” and worthy of a “both sides” debate.)
He further elaborated, “Now if that white nationalist is a racist, I’m totally against anything that they want to do because I am 110 percent against racism.”
Tuberville tried to unleash the “I’m not a racist” card by bringing up his 40-year coaching history. In his words, he “dealt with more minorities than everybody in this building.” Interesting choice of phrasing, but regardless, all that exposure to young Black men wasn’t enough to deter him from seeing them as criminals. At an Oct. 2022 Trump rally, Tuberville told the MAGA faithful that Democrats want crime to “take over what you got,” and “they want reparations because they think the people that do the crime are owed that.”
In May, Tuberville whined the U.S. was “losing” the military because Democrats were trying to purge the armed forces of far-right extremists and white nationalists, whom Tuberville views as unfairly vilified Trump supporters.
According to Tuberville, removing hateful extremists from our armed forces harms our military “readiness.” Tuberville’s obstruction, ironically, might actually be responsible for the military “losing” top talent, according to Air Force Gen. Charles Q. Brown, who President Joe Biden nominated to be the next chairman of the Joint Chiefs of Staff. Tuberville is so committed to a strong military that he’s single-handedly weakening it by blocking military officer nominations. This unprecedented obstruction has now led to the U.S. Marine Corps being without a leader for the first time in over 150 years.
Alas, white supremacy remains self-destructive until the end.
When people keep telling you who they are—again and again—take them literally and seriously, and stop whitewashing it as “economic anxiety.” It’s racism, which is the feature, not a bug, of the modern GOP.
The conservative movement realizes it can no longer politically afford to cast off white nationalists because they are part and parcel of their constituency. Last year, Trump dined with notorious racist and white nationalist leader Nick Fuentes. He “shied way from criticizing him” because he feared it would alienate his supporters.
Reps. Marjorie Taylor Greene (R-GA) and Paul Gosar (R-AZ) have also spoken at Feuntes’ conference and openly promoted white nationalist conspiracy theories. Greene was recently ejected from the House Freedom Caucus, a rogue’s gallery of freaks, because of her spat with former fellow traveler Rep. Lauren Boebart (R-CO). Embracing QAnon, conspiracy theories about Jewish space lasers, and palling around with extremists is perfectly fine for GOP leadership—but chastising one of your own is a bridge too far.
Hitler is also making a comeback in conservative circles. A chapter of the extremist group Moms For Liberty was discovered to have quoted the genocidal Nazi leader in a newsletter. A similar version of the same quote, “whoever has the youth has the future,” was spouted by Rep. Mary Miller (R-IL) in 2021. She was addressing an event hosted by Moms for America, which seeks to “reclaim our culture for truth, family and freedom.” That event was also attended by Rep. Greene.
One could easily dismiss these examples as the “fringe” of the GOP, but the truth is that the fringe, and white nationalist talking points, are now the mainstream. Even a self-professed “moderate,” former UN Ambassador Nikki Haley, has jumped on board. In June, she defended Moms For Liberty on Fox and tweeted, “If @Moms4Liberty is a “hate group,” add me to the list.
It brings me no joy to write any of this, because there’s a cost to mainstreaming hate. It's always borne in the blood of marginalized communities. White supremacist terrorism is now the leading domestic terror threat in America. Their talking points are openly shared by conservative pundits, GOP politicians, and Trump.
The more we “both sides” white nationalism, the greater the risk of embracing an ideology that has terrorized America every season since its inception. The only difference now is that you don’t need the hoods and dog whistle when you have an ignorant football coach in the Senate.
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Robin Greenfield participated in the 30 Days of Wearing My Trash challenge in Los Angeles in 2022. The challenge included living like a typical American and wearing every piece of trash he produced. (photo: Robin Greenfield)
“If the person I was 10 years ago went on a walk with me today, they would be flabbergasted,” he says.
On a Zoom call from his tiny home in Asheville, N.C., Greenfield explains how he finds edible plants, stepping outside to break off a few leaves of clover and wild lettuce for a snack. His efforts to spread awareness about larger environmental issues have earned him a sizable following. His income comes from traveling around the country — by bus or hitching a ride, as he doesn’t own a car — to speak. He has also undertaken extreme projects, including a recent initiative to support people growing their own toilet paper.
The concept of zero waste has gained popularity in the past decade, fueled in part by social media. But it has also garnered criticism for requiring a level of privilege to adopt (creating less trash is tough if, say, you don’t have access to eco-friendly products or composting, you don’t live near a refill store or you don’t have time to make food from scratch). Some say that it puts the onus of environmental change on individuals, rather than corporations and policymakers. Still, those who identify as zero waste find it deeply fulfilling and believe it is a moral imperative to at least try to reduce your trash.
Eve Schaub, a 52-year-old writer in Pawlet, Vt., conducted an experiment with her husband and two teenage daughters in 2020, trying to go an entire year without throwing anything away. The project, which she wrote about in “Year of No Garbage: Recycling Lies, Plastic Problems, and One Woman’s Trashy Journey to Zero Waste,” made her realize how seldom plastic is recycled, and how harmful it is to the ecosystem and to human health.
“We’ve been sold this bill of goods that if we all just recycle, everything will be fine,” she says. “That’s a lie. Plastic is very hard for the recycling plants to process. Plus, you have to add new chemicals when you do. It’s this Frankenstein material that does not break down and does not go away.”
That’s not to say Schaub has sworn off recycling. Rather, a major focus of the book and her family’s lifestyle is avoiding products made of or packaged in single-use plastic. They’ve largely succeeded. In the past, the family produced 96 gallons of trash per week. During 2020, they produced almost none (the exception was “health and safety” items such as feminine hygiene products and Band-Aids). These days they produce nine gallons of trash per week, which they take, along with their recycling, to a local waste transfer station. While products with reusable or recyclable packaging can cost more, the change has saved them money in other ways. Canceling their waste pickup service, for instance, put $65 back in their monthly budget.
April Dickinson, a 39-year-old communications specialist in Spokane, Wash., who lives with her husband and children, ages 7 and 11, takes a more flexible approach. Her family still has a waste pickup service, but they downgraded to the smallest size bin. She became interested in zero waste in 2016, inspired by popular figures like Bea Johnson, who became famous for fitting a year’s worth of trash into a small jar. But Dickinson found such strict goals untenable.
“I just knew that it wasn't realistic for my family,” she says.
By identifying as the “sole zero waster in a family of four” on social media, she believes she contributes to the diversity of the movement by showing that you don’t have to be “all or nothing.” Her family members have shifted many of their habits alongside her. She buys most of their clothes secondhand, hasn’t shopped on Amazon for years and strives to minimize their use of water and other resources.
“Here in the Spokane Valley, people water their lawns every day and really seem to believe that there’s an endless amount of water in the region,” she says. “It’s a little scary. So one of the choices that I worked with my husband to make is to dramatically reduce the amount of grass that we have in our yard, and to replace that with native plants and drought-tolerant plants.”
Eliminating food waste requires eating differently from the typical American. Greenfield went a year without grocery shopping, growing and foraging hundreds of foods. Schaub and Dickinson still shop for food, but bring reusable bags, buy in bulk when possible and look for products in recyclable packaging.
“Sometimes it’s a very clear choice,” says Schaub. “Like, I could buy the ketchup in the plastic bottle, which is not going to get recycled, or I could buy it in the glass bottle, which will.”
Living in a rural area allows Schaub’s family access to options like buying milk in a reusable bottle from a local dairy and getting meat from a butcher where she can take her own containers. But many snack foods are off the table.
“It’s virtually impossible to buy potato chips that aren’t in single-use plastic,” Schaub says. The upside is that it pushes her family to eat a healthier diet.
Dickinson had a similar experience. “I used to buy those individual packets of cheese, plus a pack of shredded cheese, plus a bag of sliced cheese,” she says. “One of the shifts that I made was realizing that all I actually need is one block of cheese.”
The change made shopping cheaper and easier. “It would maybe take me longer to cut or shred, but letting go of that convenience factor was one of those first shifts of thinking, zero waste actually simplifies your patterns.”
Cleaning and personal items are another challenge. Schaub and Dickinson both like Blueland, a company that sells products in reusable packaging.
“I think I tried every zero-waste product in the world,” says Schaub.
She uses soap tablets for their dishwasher and laundry, but says finding a sponge that’s not made of plastic was surprisingly hard. She is wary of “greenwashing” — when companies describe a product with terms such as “sustainable,” which have no legal definition and can be misleading.
“A lot of the time, a product will say it’s eco-friendly, but if you really look into the materials you find, oh, it’s made with 50 percent bamboo and 50 percent plastic,” says Schaub.
To vet products, she researches the materials used, sometimes calling companies for more detail. She settled on an Egyptian cucumber for a sponge.
“It’s basically a loofah,” she says. “It works really well, and I can put it in the dishwasher and sterilize it, and then use it again.”
Weaning off paper towels was tough. “I was a confirmed paper towel addict,” she says.
Though she can put paper towels in her compost, if she continued using them at the rate she always had, they’d fill her bin, she said. As a compromise, she keeps a few rolls in an inconvenient place, only taking them out for heavy-duty cleaning jobs. Otherwise, she relies on cloth towels.
All this effort can feel like swimming upstream in a world that’s not on board.
“It can be very hard to feel like anything that I do on an individual level matters,” says Dickinson. “But what I always return to is the fact that living my life in a way that aligns with my values is very fulfilling.”
And, she says, striving for personal accountability can give people perspective on policies that would lead to better outcomes.
Greenfield agrees. “Every day, I’m going against the grain of society,” he says. “It’d be one thing if I just lived alone on a farm and didn’t deal with societal norms and structures, but I'm very much still a part of society, and I intend to continue to be, because that's where I reach people.”
He also acknowledges his life is not for everyone. “Being a White man, I have a lot of privileges that other people don’t have, and that makes life easier for me. So in no way am I telling people to do what I do. I’m just saying, ‘Hey, another way is possible.’”
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