"Reject the Department of Justice Agreement" says an Experienced Attorney

A letter to Ferguson from attorney Chuck James

Ladies and Gentlemen:

You may know that I no longer live in Ferguson, but I own or have an ownership interest in two parcels of real estate and have a strong personal interest in the City where I grew up and lived for over 50 years.

I have been following the news reports relating to the proposed Settlement Agreement with the Department of Justice with much interest. I have read the Agreement and can only imagine the expense that will be involved in complying with its terms.

There are many items in the Agreement that the City can, should and is doing to “reform” the Police Department and Municipal Court. At the same time, there are many provisions in the proposed settlement that are over the top, and unnecessary in my opinion, to transform our Police Department and Municipal Court into one that we can all be proud of and that protects the legitimate interests of the citizenry against civil rights abuses.

Having said that, I realize that you have been negotiating with the DOJ for many months now and have reached the point where it is “take it or leave it”. And the DOJ seems indifferent to the costs involved and whether the City can afford them. I wonder if they have considered the fact that the costs involved will be born by the very citizenry they claim to be protecting? The City’s revenue is, after all, derived for the most part from the citizens and businesses located within its boundaries.

Bankrupting the City for the purpose of “protecting its citizens” makes no sense to me at all —regardless of the terms of any Agreement, Settlement or Judgment. How does that achieve justice for anyone?? And isn’t it justice that the government is looking for?? Isn’t that what the City is looking for??
In any event, let me cut to the chase.

I don’t seriously believe that a Federal Judge will impose a Judgment against the City that is as onerous and expensive as the Settlement Agreement that has been proposed. I would look at the proposed Settlement Agreement as the worst that could reasonably be imposed upon the City in Court. After all, in the end, the City could argue that the proposed Settlement Agreement was what the DOJ wanted.
I recommend that the City reject the proposed Agreement and fight for a better outcome in court. Remember, victory in litigation does not require that the Court find in favor of the City and against the DOJ on all counts. Victory for the City could be a settlement or judgment that does not have the effect of bankrupting the City … that includes all of the policies that are necessary to protect all citizens, while not putting the City’s police officers in any more danger than the are presently.

I have no doubt that litigation will be expensive. It could cost millions, depending upon the defense strategy. But I believe that supporters of the City would be willing to help cover the cost if an effective campaign were mounted.

I realize that the politics surrounding the decision you are faced with are complicated and passionate. I urge you to set politics aside and consider only the bottom line realities of the situation. If you approve and sign the Settlement Agreement, you are stuck with the financial consequences. No chance to renegotiate the deal.

If you reject the agreement, you will have much more time to consider the ramifications of what has been proposed and find out if the voters will approve the tax increases you have on the April ballot. You will also have time weigh the feasibility of raising money from private sources to help pay litigation expenses.
If after taking the time necessary to study all of the alternatives you determine that the proposed Settlement Agreement will work, you can always offer to accept it in the course of litigation, and the DOJ would likely accept it. No guarantees about that, but I doubt that the DOJ will insist on continuing the litigation to obtain a settlement that is significantly more onerous as the one on the table.

Do not be bullied by the DOJ. Stand your ground. Do not let the costs of this fall on the backs of the people you are supposed to be protecting. Push for something better.

Hope you are all doing well. I know how difficult this is for you.
Chuck
Mr. Charles A. James