A Lawsuit Over Ferguson’s “Debtors Prison” Drags On

The federal class-action claims thousands of people in Missouri were jailed because they couldn’t pay off fines. Four years after the suit was filed, the plaintiffs are still waiting, and wondering if the deck is stacked against them.

By Topher Sanders

In January 2014, Tonya DeBerry was driving through an unincorporated area of St. Louis County, Missouri, when a police officer pulled her over for having expired license plates.

Allison Nelson in Jennings, Missouri. Her mother, Tonya DeBerry, was jailed over outstanding traffic tickets from three jurisdictions. After paying St. Louis County, she was handed over to Ferguson and Jennings, and in each, she was told she’d be released only after paying a portion of the fines.

After discovering that DeBerry, 51, had several outstanding traffic tickets from three jurisdictions, the officer handcuffed her and took her to jail.

To be released, she was told, she would have to pay hundreds of dollars in fines she owed the county, according to her account in a federal lawsuit. But after her family came up with the money, DeBerry wasn’t released from custody. Instead, she was handed over to the municipalities of Ferguson and Jennings, and in each city, she was told she would be released only after she paid a portion of the fines she owed them, according to the lawsuit.

It was as if she were being held for “ransom,” her lawyer would later say.

The Supreme Court ruled almost 50 years ago that a person can’t be jailed for not being able to pay a fine. But like so many people in Missouri, DeBerry had ended up cycling through a succession of jails for that very reason, caught up in what critics have called modern-day “debtors prisons,” used by towns to keep fines flowing into municipal coffers.

“It’s a cat-and-mouse game,” said her daughter, Allison Nelson, who has also spent time in jail for not being able to pay traffic fines.

If DeBerry and her family were exasperated by the heavy-handed collection efforts, they would learn how hard it would be to hold the authorities accountable, especially in Ferguson, even after the killing of Michael Brown later that year drew national attention to the city’s troubled criminal justice system.

The city slowly stopped jailing people for not being able to pay fines as the news media showed the victims were primarily black and the Justice Department made clear that what Ferguson had been doing was wrong. But four years after a federal class-action suit was filed against the city on behalf of thousands of people who claimed they were jailed for their inability to pay fines, the plaintiffs are still waiting for redress.

The city has sought to have the lawsuit dismissed, filing a succession of motions, arguing among other reasons that instead of suing the city, the plaintiffs should be suing the municipal division of the state court. All three of the motions have been denied by the judge, Audrey G. Fleissig, of the U.S. District Court in St. Louis, though one of the rulings was appealed and that took about a year to resolve.

Nelson flips through photocopies of traffic tickets and legal filings.

One issue has proved to be particularly frustrating to the plaintiffs: whether the city of Ferguson is even insured for a class action.

In March 2016, the lawyer representing Ferguson sent an email to a representative of the city’s insurer, saying that the scope of the lawsuit had expanded, and that concern about the case “grew” after a similar suit was settled for what was believed to be a “substantial amount of money.”

The five-sentence email concluded with the lawyer, Peter Dunne, of the St. Louis firm Pitzer Snodgrass, saying that legal action may be necessary to resolve the question of whether the city was covered for a class action.

“We believe a DJ [declaratory judgment] suit to determine coverage may be necessary,” Dunne wrote.

Three months later, the insurance trust filed a declaratory judgment suit against Ferguson in St. Louis County Circuit Court, asking a judge to find that the city did not have insurance coverage for class actions.

Dunne’s role was not publicly known until September when St. Louis Post-Dispatch columnist Tony Messenger reported Ferguson’s allegation that Dunne had violated his duty to the city. The email documenting Dunne’s discussion of a lawsuit with the insurer was first obtained by ProPublica. Dunne, one of the firm’s principals, did not respond to requests for comment. The other principals did not respond to emails or to a call to the firm’s office.

Suggesting legal action involving his own client was a breach of legal ethics, some experts said, and the revelation has only deepened the sense among the plaintiffs and their supporters that the deck is stacked.

“No matter where the citizens of Ferguson go in the legal system, justice is really hard for them to obtain,” said Vincent Southerland, executive director of New York University School of Law’s Center on Race, Inequality and the Law. “It’s another example that we have a legal system that was not built to protect and vindicate the rights of the most vulnerable among us.”

The killing of Brown by a police officer in August 2014 and the unrest that followed thrust Ferguson into the middle of a growing national debate over race and law enforcement. But for black people in Ferguson and the surrounding North County region, racial discrimination had long defined their relationship with the local police and courts.

Even as the rest of the country moved on from Ferguson, the people seeking a judgment against the city found themselves mired in the machinations of an insular legal system and an overburdened insurance carrier.

Ferguson, a city of about 21,000 people, was insured through a cooperative of 25 municipalities called the St. Louis Area Insurance Trust, commonly referred to as SLAIT.

The trust has operated largely out of the public eye. It took the persistence of Messenger, who won a Pulitzer Prize this year for his columns on “debtors prisons” in rural Missouri, to make the trust comply with open government laws.

Messenger said the rural courts ensnared whites, while in Ferguson and elsewhere in North County, it was blacks who were victimized. “But it’s the same concept,” he said. “It’s policing on the poor, it’s jurisdictions that don’t have a tax base anymore looking to the judicial system as a fundraising tool and judges allowing themselves to be tax collectors rather than purveyors of justice.”

Four years after a federal class-action suit was filed against Ferguson on behalf of thousands who claimed they were jailed for their inability to pay fines, the plaintiffs are still waiting for redress.

The trust hired Dunne to provide Ferguson’s defense of the class-action lawsuit. But his firm, Pitzer Snodgrass, was also providing the trust with legal advice on insurance coverage issues, according to a court filing by Ferguson. That set up what Ferguson said in the filing was a conflict that the city had not been made aware of.

Even if city officials wanted to settle the case, the trust claims in court filings there isn’t coverage and it won’t pay out. The insurance trust’s lawsuit will determine whether there is coverage.

Michael Downey, a law professor at Washington University in St. Louis and an expert on legal ethics, said that unless Dunne had Ferguson’s permission, Dunne should not have talked to the insurer about the possibility of a lawsuit over coverage.

“A breach of the duty of confidentiality basically to encourage a party to take action against your client is a pretty serious violation of the rules,” Downey said.

Even if Dunne thought he was conveying something that the insurer already knew, the exchange was still concerning, Downey said.

The trust, through its lawyer, declined to comment.

Michael Frisch, Georgetown University Law Center’s ethics counsel, said that, were the bar to pursue an investigation, any punishment would not be severe. A reprimand — at most, he said.

“It’s the kind of a thing that would not draw that much of a response from the bar,” Frisch said. “Lawyers tend not to get suspended for things like this.”

New York University law professor Stephen Gillers, who specializes in legal ethics, said that regardless of any punishment, Dunn’s actions are significant.

“It’s a big deal, because clients are entitled to loyalty,” he said. “If you can’t be equally loyal to both clients, then you have a conflict and you have to withdraw entirely or from one or the other client.”

For lawyers hired by insurance companies to represent policyholders, the question of who is the client was for many years unsettled ethical terrain, experts say.

Lawyers can feel a sense of obligation to the insurance companies that hire them — and that can provide a steady stream of business — said William Barker, co-author of “Professional Responsibilities of Insurance Defense Counsel.”

Barker, a Chicago lawyer with the firm Dentons, said that until the 1970s, lawyers hired by insurance companies to represent a policyholder typically thought of the company as their chief client. But a series of court decisions since then established that the lawyer owes undivided loyalty to the policyholder, and that is why the lawyer’s actions in the Ferguson case appear to be troubling, Barker said. “That’s something that the defense lawyer ought not to be doing,” he said. “The lawyer who is handling the defense ought not to be involved, certainly in advising the insurance company on coverage issues.”

Michael-John Voss, a lawyer for the ArchCity Defenders, the civil rights group that brought the lawsuit against Ferguson, expects to case to drag into 2020.

“The relief and the remedy has been a long time coming, and there’s no clear end in sight,” he said. “And it reemphasized to me the way that these larger structures are put in place to avoid accountability and to perpetuate a system of social control.”

ProPublica asked the insurance trust if it had instructed Dunne to act as he did, but the trust’s lawyer said the organization would not answer any of ProPublica’s questions because of the ongoing lawsuits.

The insurance cooperative was created in the 1980s to help small St. Louis-area municipalities share the cost of liability insurance and health care. The arrangement worked for the occasional slip-and-fall claim and other routine municipal litigation. But it has not held up well in the face of payouts to cops injured on duty and for actions by the police and the courts.

Most notably, the trust paid $1.5 million to Brown’s family in 2017 to settle a wrongful death claim against Ferguson. But that was hardly the only big hit in recent years. In 2016, a jury awarded $3 million to the family of Jason Moore, an unarmed 31-year-old man, who died after a Ferguson police officer delivered several shots from a Taser.

A state audit released in February showed the organization’s fund balance dropped to $3.8 million in 2018 from $12.2 million in 2016. Like many insurers, the trust also has its own coverage, known as reinsurance, and it turned to those carriers to help with the Moore verdict. But the companies have told the trust that they won’t cover the judgment in the Moore case because the companies allege the trust improperly notified them of the claim. The trust is suing the companies.

Dunne and his firm are no longer working on the Ferguson case. The firm was disqualified by the judge after it hired a lawyer from the ArchCity Defenders who represented one of the lawsuit’s plaintiffs in court.

De’carlon Seewood, who stepped down in March after three and a half years as Ferguson’s city manager, said resolving the lawsuit will help the community move beyond the abuses and the notoriety that came with them.

“It is important to kind of move forward and show that new face, that better face,” Seewood said this year, before he left Ferguson to become the city manager in Fairburn, Georgia, just outside Atlanta. Jeffrey Blume, Ferguson’s interim city manager, directed questions to the city’s attorney, who declined to answer.

Seewood said the city had hoped the insurance trust would take care of the settlement the way the insurer for the city of Jennings had. But Jennings was in a very different position. Its insurer was Travelers, the country’s sixth-largest property and casualty insurer. By contrast, the insurance trust is a small cooperative with dwindling funds.

“The insurance [trust] looked at the enormity of what’s being asked and they said that’s it’s outside their [coverage] of the city, and so the city finds itself fighting with its insurance company about [coverage],” Seewood said.

According to a memo written by the trust’s claims administrator, the plaintiffs originally asked for $27.5 million but during mediation in April 2016 reduced the demand to $9.5 million. That amount is what the plaintiffs believe, based on the policies, is the total coverage limit of Ferguson’s insurance.

Alexandra Lahav, a professor at the University of Connecticut School of Law and an expert in civil litigation, said a case like this typically would be resolved in about two years and said the insurance dispute was slowing the process.

“This really shouldn’t be a very complicated class action,” Lahav said.

Lisa Soronen, executive director for the State and Local Legal Center, a Washington organization that supports states and local governments in legal disputes that rise to the U.S. Supreme Court, said the dispute between the trust and Ferguson didn’t leave the city with many sound options other than fighting the case mightily.

“As a practical matter, Ferguson’s a really small city that has no money,” she said. “If there’s no insurance coverage and there’s a huge judgment, I don’t know how it would pay.”

John Rappaport, a professor at the University of Chicago Law School who has studied the impact insurance can have on police practices and policies, said insurance trusts have a reputation for being less likely than commercial insurers to settle cases involving police officers.

“The risk pools or the trusts, they see themselves as extensions of the cities themselves,” he said. “Their reluctance to settle litigation against the police would seem [to be] a kind of loyalty to their members — their cities.”

Rappaport said commercial insurers often see the issues as purely a matter of dollars and cents.

“Whereas if the city either is in a risk pool or the city represents itself, they see it as more of like a moral issue, like we have to stand up for our officers,” he said.

Even after the Ferguson suit is resolved, litigation in Missouri over “debtors prison” practices won’t be. ArchCity Defenders has lawsuits pending in six other cities, with more in the pipeline stretching beyond North County.

DeBerry, the Ferguson woman who was a named plaintiff in the Ferguson class action, was also a plaintiff in the lawsuit against neighboring Jennings, which settled for $4.8 million less than a year and a half after the suit was filed.

But the suit in Ferguson has dragged on longer than DeBerry could wait.

She died in April 2018.

“And now she will never even get a piece of this justice because she’s no longer here,” said Nelson, her daughter. “That’s sad, that’s really sad. It’s actually pathetic because it should have never come to that. It hurts.”

DeBerry died in April 2018. “And now she will never even get a piece of this justice because she’s no longer here,” Nelson said.

Republished with permission under license from ProPublica, a Pulitzer Prize-winning investigative newsroom.

Attempted Destruction of Dr. Martin Luther King’s Legacy

By Randall Hill

There appears to be a concerted effort to destroy the reputations and images of Black men. Not even the dead are immune. Fifty-one years after his death, Dr. Martin Luther King Jr. is the latest target; allegations of rape and participation in orgies have surfaced.  

FBI's History of Targeting Black Activism

From the 1910s to the 1970s, the FBI treated civil rights activists in general, and African American activists in particular, as either disloyal “subversives” or “dupes” of foreign agents. The FBI’s predecessor, the Bureau of Investigation, sought to “compel black loyalty” during World War I and investigate “negro radicalism” in the 1920s.

FBI records show between 1956 and 1971 a covert and at times illegal program, COINTELPRO, targeted black leaders and civil rights organizations with the stated purpose of surveilling, infiltrating, discrediting, and disrupting their activities. The FBI file on my uncle Dick Gregory contains over 3,700 pages.

Two days after Dr. King delivered his famous “I Have a Dream” speech at the 1963 March on Washington,  William Sullivan, the FBI’s director of intelligence, famously responded by writing, “We must mark him now, if we have not done so before, as the most dangerous Negro of the future in this Nation from the standpoint of communism, the Negro and national security.” In late August 1963, FBI leaders met to discuss ways of “neutralizing King". 

COINTELPRO tactics are still used to this day, and have been alleged to include discrediting targets through psychological warfare; smearing individuals and groups using forged documents and by planting false reports in the media; harassment; wrongful imprisonment; and illegal violence, including assassination.

The FBI sent a secret memo in August 2017 to alert 18,000 law enforcement agencies that people involved in the black lives matter and similar movements could be "black identity extremism” an inflammatory term for a group that doesn’t even exist to discredit and criminalize black people protesting against police brutality and killings by labeling them as terrorists.

Sexual Allegations 

In an 8,000-word article published in the British periodical Standpoint Magazine on May 30, David Garrow details the contents of FBI memos he discovered after spending weeks sifting through more than 54,000 documents located on the National Archive’s website. Initially sealed by court order until 2027, the documents ended up being made available in recent months through the President John F. Kennedy Assassination Records Collection Act of 1992

The memos claim that agents knew that King and a group including Baltimore Pastor Logan Kearse were going to be staying at the Willard Hotel in January 1964 days before he ever arrived. The most troubling memos describe King witnessing a rape in a hotel room. Instead of stopping it, handwritten notes in the file say he laughed and encouraged Kearse who died in 1991 to continue. The FBI allegedly listened in on King and at least 11 others who participated in what the FBI memos describe as “an orgy” on Jan. 6, 1964.

Many of these transcripts were based on audiotapes that are still sealed until 2027 under a court order. That’s when the FBI’s full audiotapes, photographs and film footage of King will be unsealed per a 1977 court order.

Questionable Motives

Some historians have questioned Garrow’s choice to publish the content of the memos and transcripts without listening to the recordings, and have pointed out that the FBI had spent years trying to undermine King. People will rightly debate the trustworthiness of FBI sources, and Garrow’s interpretation of them. No figure, no matter how revered, should be immune from scrutiny over their potential support for violence against women.

But those weighing the evidence and its legitimacy should not forget that the tapes being used to facilitate this discussion were created and preserved with the goal of destroying Martin Luther King’s reputation. The FBI’s intent was to demoralize and fragment the coalition of supporters King brought together in his life, the people who find common purpose by honoring his memory.

Media Propaganda

A large segment of the black community is too quick to buy into racist narratives created in the news media about black athletes, entertainers, politicians, and leaders.

As we've mentioned before 90 percent of mass media is controlled by a few white corporations. Negative perceptions of black people persist primarily because of racist propaganda. Most white television programming and movies depict even successful black people as former drug dealers, criminals or they have some major character flaw and can't be trusted. 

Bill Cosby's reputation was destroyed after a massive media propaganda campaign that accused him of sexually assaulting dozens of women. Cosby was eventually convicted of aggravated indecent assault and sentenced to 3 to 10 years in prison. The Cosby Show and A Different World helped spread a more positive image of African-Americans all around the world. The Cosby Show made possible a larger variety of shows with a predominantly African-American cast, such as In Living Color, The Fresh Prince of Bel-Air and others.

The Cosby Show may not have been possible if Dr. King hadn't inspired millions of people through his actions and words. Although, there were others who were equally dedicated, such as Medgar Evers and Malcolm X who also gave their lives fighting for civil rights; none were more persuasive. Now Dr. King's legacy which inspired a national holiday is under assault.

The white media machine will viciously attack Dr. King's reputation and legacy. Hopefully, large segments of the black community will not be fooled into abandoning one of their most cherished champions. As a reminder of white media's power; in January of this year, the following black reputations were attacked:

  • Michael Jackson and R. Kelly were vilified in the documentaries "Leaving Neverland" and "Surviving R. Kelly". Both were previously found not guilty in prior sex abuse cases. New charges were bought against Kelly after Surviving R. Kelly aired.
  • Chris Brown was arrested on rape and drug charges in Paris, however, charges were later dropped but the investigation remains open.
  • Jussie Smollett after reporting being attacked became a suspect and was indicted on 16 felony counts and faced 64 years in prison. The police held an elaborate press conference which was essentially trial by public opinion. All charges were eventually dropped and the Black prosecutor was smeared. The Chicago police just recently released hundreds of pages of the Smollett case file

George Washington, Thomas Jefferson, and others are celebrated by white people despite them being slave owners and rapist. Many in the white community still believe black people should stand to honor a song adopted as the national anthem that celebrated the deaths and defeat of slaves who were fighting for their freedom. 

Mentioning slaves fighting for freedom reminded me of the 2016 media attack on Nate Parker, director and star of "Birth of a Nation", a wonderful film about the slave rebellion led by Nat Turner. Nate Parker and his roommate and wrestling teammate, Jean McGianni Celestin, were accused of raping a white female student at Penn State. Parker was acquitted on all four counts brought against him. Celestin was convicted but it was later overturned.  False rape allegations are an effective tool of white supremacists; countless numbers of black men have been lynched, jailed and ruined.  "Birth of a Nation" was expected to be a huge success and Oscar contender until the media campaign smeared Parker's reputation prior to the release of the film. 

Dr. King cannot defend himself against these outrageous allegations, so we must. He gave his life fighting for freedoms and privileges we now take for granted. Destruction of Dr. King's reputation is paramount to an assassination of his dream and legacy.