Hypersegregation and the St. Louis Municipal Courts
I was born in St. Louis, Missouri in 1941, grew up there, went to school there until 1963 – 1966 when I attended the University of Missouri School of Law, and worked there until 1974 when my family and I left St. Louis for the next 40 years. During that 40-year span, I did a wide variety of civil trial litigation, including a lot of civil rights and constitutional litigation, mostly in Florida and across the South.
I returned to St. Louis in 2014 to teach at the St. Louis University
School of Law Clinic ("SLU Law") as a Professor of Practice. I worked with the remarkable clinical professors there, including the legendary professor John Ammann and his counterpart Brendan Roediger, both of whom — together with Thomas Harvey, a 2009 SLU Law school graduate and co-founder of ArchCity Defenders ("ACD") — would play a large role in challenging the entire legal establishment in St. Louis, including the courts and the bar, many of whom were SLU Law school graduates, in the litigation and public advocacy that followed in the immediate aftermath of the killing of Michael Brown by a Ferguson police officer on August 9, 2014.
SLU LAW AND ACD BEFORE AUGUST 9, 2014
Professors Ammann and Roediger and ACD's Harvey had been working with SLU law students in the municipal courts of St. Louis County for years, doing pro bono work representing individual clients with outstanding warrants for their arrest resulting from failure to appear and/or pay a host of court fines and fees, defending these individuals in cases where their clients had valid defenses or mitigating circumstances that could potentially reduce or eliminate applicable fines and fees, and otherwise "slugging it out" in the municipal courts of St. Louis County. The vast majority of the poor people haled into these courts were African American citizens of those communities, in numbers that were grossly disproportionate to their numbers in the municipalities in which they lived.
These courts were about to become the object of intense national scrutiny, as glaring examples of debtors' prisons, where thousands of poor people, almost all of whom were unrepresented by counsel, were ordered by municipal judges into municipal jails for failure to pay a host of fees and fines, many of them illegal on their face, with no inquiry whatever into their ability to pay these fees and fines, as required by the United States Supreme Court for over 30 years. Bearden v. Georgia, 461 U.S. 660, 667-68 (1983).
When I grew up in St. Louis, I read about a very evil thing that was happening in South Africa at that time (1948 to 1994): a system of racial segregation in that country that was enforced through legislation. Upon my return to St. Louis 40 years later I read Colin Gordon's remarkable 2008 book, "Mapping Decline: St. Louis and the Fate of the American City." In Mapping Decline, Gordon makes it abundantly clear that, unbeknownst to me and to anyone else I knew in St. Louis at that same time, St. Louis' zoning practices were "designed to sort the metropolis not just by income or family status but by race as well." (Id. at 145)
Mapping Decline is meticulously documented. One of the nation's leading planning firms, Harland Bartholomew and Associates, did almost all of the substantive planning and zoning in St. Louis and left behind at Washington University an expansive documentary and cartographic record. Moreover, the Missouri State archives maintained extensive case and evidentiary records of key land use cases. Employing the visual and explanatory power of GIS mapping, and using census and archival data, Gordon masterfully and exhaustively depicts a massive and successful effort by St. Louis realtors and governmental institutions to "sort the metropolis…by race." (Id. at 145).
The resulting scholarly work is both graphic and compelling in its conclusion. Gordon leaves little question that St. Louis deserves to be ranked as one of only a handful of "hypersegregated" metropolitan areas in the nation, and that this result was "a direct consequence of public policy, not an unfortunate social ill that persisted despite public policy." (Id. at 31).
In St. Louis County, "zoning proceeded alongside development and was instrumental in shaping patterns of residential use." (Id. at 129) Importantly, zoning authority rested in the hands of individual municipal governments (numbering 35 in 1940 and 95 by 1960)." (Id. at 129). County municipalities used incorporation and annexation "to protect private development patterns, and zoning (or rezoning) to control the class and race of local occupants." (Id. at 152).
Apartheid. In my home town. Gordon could not be clearer: "The intent and the effect of local public policy, in St. Louis and its suburbs, were to tilt the playing field dramatically in favor of those who were winning. The economic disadvantages suffered by African Americans…eroded the legitimacy of even modest efforts at redistribution or redress, as inner-city poverty was willfully misdiagnosed as something African Americans had done to themselves." (Id. at 13).
What happened in the aftermath of the shooting of Michael Brown on August 9, 2014 cannot be understood outside the context of the racial history of St. Louis city and St. Louis County provided in Mapping Decline. Professors Ammann and Roediger at SLU Law and their students at SLU Law and Thomas Harvey at ACD had been doing all of their work for years before August 9, 2014 in the municipal courts of St. Louis in the midst of this constant reality of hypersegregation. The first systemic work SLU Law and ACD did on the municipal courts in St. Louis began in the Spring of 2014. The rules in many of the municipal courts in St. Louis County prohibited anyone who was not either counsel of record or a defendant on the docket from attending the “public” sessions of the court.
A meeting with the St. Louis County Chief Administrative Judge Maura McShane and various representatives of the St. Louis County municipal courts was soon arranged, and on June 24, 2014 Judge McShane sent a letter to every municipal judge and city attorney in St. Louis County, advising them that a "substantial number of our municipal courts…limit seating only to defendants and defendants' attorneys," and that such a practice was "a clear violation of the Missouri Constitution."
Judge McShane enclosed a Municipal Court Operating Order with her letter, and recommended that every municipal judge sign such an order, noting that litigation would likely follow in the event that the municipal courts continued such an unconstitutional practice. Most, but not all, of the offending municipal courts in St. Louis County then ended the practice of closed courts.
After Thomas Harvey graduated from SLU Law in 2009, he wanted to work with the homeless in St. Louis, and he began to represent them. It soon became apparent to Harvey that the homeless had a problem that no one had ever spoken or written about — the debtors’ prisons in the municipalities of St. Louis County where people who could not pay the huge fines and fees assessed by the St. Louis County municipal courts were routinely sent without any inquiry whatever concerning their ability to pay those fines and fees.
Harvey had heard that Stephen Bright, founder of the Southern Center for Human Rights in Atlanta, Georgia, had done court watching in the Georgia courts with law students and had discovered unconstitutional practices in those courts which led to successful litigation. A critical piece of this kind of project was the production and pubic issuance of a white paper describing the abuses discovered and documented by the students. So Harvey traveled to Georgia to learn about court watching and white papers and litigation.
When Harvey returned to St. Louis, he began a court watching project with students from Washington University in several of the worst behaving municipal courts in which he was practicing in North St. Louis County, including Ferguson. On August 9, 2014 when Michael Brown was killed, Harvey's fact-finding on this project was mostly done and he had a rough draft of a white paper.
The national press had descended upon St. Louis. The Justice Department announced that it would conduct an investigation into Michael Brown's death. Harvey immediately saw the opportunity, worked feverishly to finish the white paper, and on August 12, 2014 the white paper was posted to the ACD website and the subject of a major story in the Washington Post. The Justice Department soon thereafter announced that it would investigate not only Michael Brown’s death, but also the practices of the municipal government in Ferguson in terms of its relationships with its citizens, particularly its African-American citizens, including the municipal court and the police department. A national movement had begun.
In the year that followed Michael Brown's death, John Ammann and Brendan Roediger at SLU Law and ACD, working together with a number of other law firms, filed a series of class actions and other litigation against St. Louis County municipalities and other governmental units that included:
• A class action filed against the City of Ferguson and a class action filed against the City of Jennings challenging the debtors' prisons run by those two municipalities, as impoverished people in those two municipalities were jailed because they were unable to pay debts owed to the two cities from traffic tickers or other minor offenses, without any judicial inquiry into their ability to pay those debts. The SLU Law Professors were joined in this litigation by ACD and Alec Karakatsanis, one of the founders of Equal Justice Under Law ("EJUL") in Washington, D.C.
• A class action against the City of Bel-Ridge challenging the failure of that municipality to timely file a report required by state statute to be filed with the state auditor pursuant to a law that limited the revenues that a municipality could receive from traffic fines and fees to 30|PERCENT| of a municipality's revenues in any one year; the statute in question provided that in the event a municipality failed to timely file such a report its municipal court would "suffer immediate loss of jurisdiction.
• 12 class actions against St. Louis City and St. Louis County municipalities that imposed illegal fines and fees, such as a fee to recall a warrant, not authorized by state statute (Section 488.005 RSMo). The SLU law professors were joined in this litigation by ACD and John Campbell and Alicia Campbell, his wife, two graduates of SLU Law who had formed Campbell Law.
• A successful preliminary injunction action against the City of St. Louis Police Department, the St. Louis County Police Department, and the Missouri Highway Patrol for the widespread use of chemical agents against peaceful protesters in the aftermath of the grand jury verdict finding no probable cause to prosecute the police officer who killed Michael Brown. The SLU Law professors were joined in this litigation by ACD and Denise Lieberman at The Advancement Project.
This is a staggering amount of litigation mounted in a remarkably short period of time by a small band of lawyers. Most of this litigation is ongoing and has not yet concluded. A detailed description and analysis of all of this litigation is beyond the scope of this article. But one of these lawsuits against a municipality adjoining Ferguson has already resulted in a settlement which will likely have major implications, not only in the remaining St. Louis County litigation, but also around the nation, as similar lawsuits are being filed all over the country.
The Jennings class action complaint was filed in the United States District Court for the Eastern District of Missouri on behalf of impoverished people who were jailed by the City of Jennings because they were unable to pay a debt owed to the City from traffic tickets or other minor offenses. The complaint alleged that plaintiffs were each held indefinitely in a jail with grotesque living conditions and none was afforded a lawyer or a judicial inquiry into their ability to pay, as required by the United States Constitution.
The plaintiffs asserted that the City issued arrest warrants without probable cause to believe that the person arrested had the ability to make a payment. When impoverished people appeared at the City payment window, they were told they would be jailed if they did not bring specific sums of money to the City on designated dates in the future. The City would then issue arrest warrants for "failure to appear" when people did not pay by certain designated dates, even though the person did not fail to appear at any court appearance.
The complaint asserted claims under the Fourteenth Amendment for the City's jailing plaintiffs solely for their inability to pay these fines or fees; under the Sixth and Fourteenth Amendment for the City's failure to provide counsel to the plaintiffs so jailed; under the Fourteenth Amendment for the use of indefinite and arbitrary detention; under the Fourteenth Amendment for inhumane and dangerous conditions of confinement in the jail; under the Equal Protection Clause of the Fourteenth Amendment because the City imposed harsh and punitive restrictions on debtors whose creditor was the government compared to those who owed money to private creditors; and under the Fourth and Fourteenth Amendment for issuing invalid warrants against those who had not paid their traffic debt without any prior knowledge that the person was impoverished and unable to pay the debt.
In a virtually identical lawsuit filed in the United States District Court against the City of Ferguson, the defendants moved to dismiss the complaint, and the court entered an order denying the motion to dismiss, initially on four of the six counts, and eventually after granting a motion for reconsideration, on all of the six counts. In its orders on the motion to dismiss, the District Court upheld plaintiffs' claim of unconstitutional jailing for inability to pay, relying on the United States Supreme Court's decision in Bearden v. Georgia, 461
U.S. 660, 667-68 (1983): "[I]f the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it."
The court noted that federal courts following Bearden have repeatedly held that jailing persons who are unable to pay a court-ordered fine, without first inquiring into their ability to pay and considering alternatives to imprisonment, violates both the Due Process and Equal Protection Clauses of the Constitution. The court relied on Argersinger v. Hamlin, 407 U.S. 25,37 (1972) to uphold plaintiffs' right to counsel claim. Argersinger held that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he was represented by counsel at his trial."
Plaintffs claim that they were indefinitely and arbitrarily detained for days or weeks without a court appearance was also upheld, with the Court’s noting that the Eighth Circuit has not delineated with precision "the duration and circumstances of detention that might result in a due process violation." Noting that the Eighth Circuit has held that pretrial detainees are "entitled to at least as great protection" as convicted prisoners are entitled to under the Eighth Amendment, the court denied defendants' motion to dismiss plaintiffs' conditions of confinement claim regarding conditions during their confinement in the City's jail.
Plaintiffs' relied on the United States Supreme Court's decision in James v. Strange, 407 U.S. 128 (1972) to support their claim that they were treated worse than civil judgment debtors by the City in violation of the Equal Protection Clause of the U.S. Constitution. The district court initially dismissed this claim, believing that the plaintiffs had not adequately alleged that they were similarly situated to civil judgment debtors, but on rehearing agreed with plaintiffs that their allegations were sufficient to overcome a motion to dismiss.
Similarly, the district court initially dismissed plaintiffs' Fourth Amendment claim that the warrants issued to them were invalid in violation of the command of Baker v. McCollan, 443 U.S. 137, 142 (1979) that "the Fourteenth Amendment requires the States to provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty." However, on rehearing the district court found that the plaintiffs had plausibly pled that the City had a policy of issuing warrants for "failure to appear" without probable cause.
The City of Jennings chose a different path. Its lawyer, D. Keith Henson, contacted plaintiffs' counsel after the filing of the lawsuit and negotiated a stay of the proceedings to give the parties time to see if they could settle the declaratory and injunctive relief portions of the plaintiffs' claim for relief. Henson never once spoke to the press about the case, clearly read all of the applicable cases, both state and federal, and sought from the beginning to bring his client into compliance with both state law and the Constitution.
The result was a remarkably detailed settlement agreement entered into in August, 2015 that has the distinct potential to serve as a model for resolution of the remaining disputes in the St. Louis County municipal courts regarding the practice of conducting debtors' prisons, and to serve as a model for settlement of similar lawsuits all over the nation. The provisions of this agreement were approved by the district court and are now the law in Jennings. Briefly, here are the principal provisions of the Jennings settlement agreement.
• It violates the Constitution to incarcerate an individual in jail, either before or after trial, solely because an individual does not have the ability to make a monetary payment, citing Bearden v. Georgia, supra.
• No person may, consistent with the Equal Protection Clause of the Fourteenth Amendment, be held in custody after arrest because the person is too poor to post a monetary bond.
• The Equal Protection Clause of the Fourteenth Amendment ma