Page:Investigation of the Ferguson Police Department.djvu/22

 was sitting in his car cooling off after playing basketball. The officer arguably had grounds to stop and question the man, since his windows appeared more deeply tinted than permitted under Ferguson's code. Without cause, the officer went on to accuse the man of being a pedophile, prohibit the man from using his cell phone, order the man out of his car for a pat-down despite having no reason to believe he was armed, and ask to search his car. When the man refused, citing his constitutional rights, the officer reportedly pointed a gun at his head, and arrested him. The officer charged the man with eight different counts, including making a false declaration for initially providing the short form of his first name (e.g., "Mike" instead of "Michael") and an address that, although legitimate, differed from the one on his license. The officer also charged the man both with having an expired operator's license, and with having no operator's license in possession. The man told us he lost his job as a contractor with the federal government as a result of the charges.



One area of FPD activity deserves special attention for its frequency of Fourth Amendment violations: enforcement of Ferguson's Failure to Comply municipal ordinance. Ferguson Mun. Code § 29-16. Officers rely heavily on this charge to arrest individuals who do not do what they ask, even when refusal is not a crime. The offense is typically charged under one of two subsections. One subsection prohibits disobeying a lawful order in a way that hinders an officer's duties, § 29-16(1); the other requires individuals to identify themselves, § 29-16(2). FPD engages in a pattern of unconstitutional enforcement with respect to both, resulting in many unlawful arrests.

Improper Enforcement of Code Provision Prohibiting Disobeying a Lawful Order</ol></ol></ol>

Officers frequently arrest individuals under Section 29-16(1) on facts that do not meet the provision's elements. Section 29-16(1) makes it unlawful to "[f]ail to comply with the lawful order or request of a police officer in the discharge of the officer's official duties where such failure interfered with, obstructed or hindered the officer in the performance of such duties." Many cases initiated under this provision begin with an officer ordering an individual to stop despite lacking objective indicia that the individual is engaged in wrongdoing. The order to stop is not a "lawful order" under those circumstances because the officer lacks reasonable suspicion that criminal activity is afoot. See United States v. Brignoni-Ponce, 422 U.S. 873, 882-83 (1975); United States v. Jones, 606 F.3d 964, 967-68 (8th Cir. 2010). Nonetheless, when individuals do not stop in those situations, FPD officers treat that conduct as a failure to comply with a lawful order, and make arrests. Such arrests violate the Fourth Amendment because they are not based on probable cause that the crime of Failure to Comply has been committed. Dunaway v. New York, 442 U.S. 200, 208 (1979).

FPD officers apply Section 29-16(1) remarkably broadly. In an incident from August 2010, an officer broke up an altercation between two minors and sent them back to their homes. The officer ordered one to stay inside her residence and the other not to return to the first's