‘The Holy Grail’: Could 85-year-old error unravel state control of Kansas City police?

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Missouri governors have controlled the Kansas City Police Department for all but seven years since its founding in 1874. In no other Missouri city – and few other places nationwide – are local elected officials powerless to direct their own police force.

But plaintiffs in a pending court case aim to undo that arrangement and let Kansas City run its own police department once again, if they can prove the state control law was the product of sloppy lawmaking when it was passed 85 years ago.

Documents long hidden in plain sight at the State Historical Society support the theory, pointing out a discrepancy in the law, say critics who recently filed court challenges to the state law they say is discriminatory and possibly unconstitutional.

“We think this might be the Holy Grail,” said Lora McDonald, the executive director of the Metro Organization for Racial and Economic Equity , a social justice group known more commonly as MORE2 that is critical of police violence and abuse of power.

State officials ran the Kansas City Police Department from its founding, based on a Civil War-era law that took control of the St. Louis police to enforce the Confederacy’s racist policies.

In 1932, a Missouri Supreme Court decision ruled that law unconstitutional. Then seven years later, when Kansas City and the police department was under the corrupt reign of the Pendergast political machine , the state legislature passed a new law to take back control of the force.

Those recently found transcripts of legislative proceedings in 1939 show that lawmakers were aware the current law might be unconstitutional when they returned the department to state control that summer.

“The way that I’ve read the journals and everything, it looks pretty clear that the law that went into effect was not the bill that either the House or the Senate passed,” said Spencer Webster, the attorney representing McDonald and three others affiliated with MORE2.

“In my opinion, that’s unconstitutional. I have a hard time seeing it any other way.”

Is state control discriminatory?

The federal lawsuit Webster filed in March originally alleged that the current state control law is unconstitutional because the arrangement is tantamount to taxation without representation.

State law sets how much Kansas City taxpayers must spend on their police protection as a percentage of the city budget. However, the city’s elected leaders have little say on how that money is spent and cannot hire or fire the chief of police. Instead, the police department is run by a five-member board, of which four commissioners are appointed by the governor. The other is the mayor.

According to MORE2’s federal lawsuit, that setup insulates the department from being held accountable to the citizens they are sworn to serve and protect, many of whom are allegedly subject to racial bias and selective enforcement that discriminates against non-white people.

To bolster that claim, the lawsuit cites a long list of statistics showing that Black people are more likely than white people to be pulled over, arrested or killed by the Kansas City police.

This is the first direct legal challenge of the state’s control of the Kansas City department since the current law was passed, Webster says. The defendants are Gov. Mike Parson, Attorney General Andrew Bailey, Secretary of State Jay Ashcroft and members of the police board.

Changes made in pencil?

Parson’s predecessor, Gov. Lloyd Stark, led the effort for the state to retake control of the Kansas City department after a grand jury investigation in March 1939 found widespread corruption in the police department and county prosecutor’s office, issuing more than 160 indictments in the spring of 1939.

Illegal gambling, liquor law violations and violent crime by mobsters was condoned to such an extent, the investigation found, that Kansas City had earned a reputation as “a wide open town.” That April, T.J. “Boss Tom” Pendergast was indicted for bribery and tax evasion by a federal grand jury.

By wide margins, both the House and Senate voted that year to reinstate state control by inserting a key fix that was not in the law that was struck down years earlier. It instructed the city to set aside 1/6th of the city’s general revenue fund for police protection, where before the amount was open ended.

But a quirky irregularity in the legislation led some to question whether the law ordering the takeover was legal, according to newspaper stories published at the time.

“Pencil Mark Deadlocks Police Bill,” read the front-page headline in the now defunct Kansas City Journal on June 9, 1939. Someone in the House — it was never determined who for sure — had amended the bill in pencil to correct an error in the printed version referring to another section in the bill.

When the bill got to the Senate, lawmakers were uncertain whether the House had approved the pencil mark-amended version or whether the marks were added later.

If the latter, wouldn’t that mean the Senate was being asked to pass judgment on a bill that was different, if only slightly, when the constitution required that they be identical?

Several senators urged caution and said that a formal amendment would be needed. Violating normal procedure with a wink and a nod could mean trouble later.

“The Senate is engaged in building up one of the greatest lawsuits ever filed in this state,” predicted Sen. L.N. Searcy of Eminence, who the Kansas City Journal described as a “brawny lawmaker who speaks from the shoulder.”

The newspaper said Sen. Emery Allison of Rolla also was concerned.

“I don’t want to return to my people and say there was a cloud of suspicion on this matter,” he said.

But eager to go home after five months of legislating, the majority waved off the criticism and passed the Senate’s nearly identical bill, rather than send it back to the House. Such details as those pencil marks weren’t worth the trouble, they said.

“I see no reason we should stay here two or three weeks over it,” Sen. Paul Jones of Kennett said.

Stark signed the law, and that next month the state took over and has been in control ever since.

New claims of unconstitutionality

Separate from the news accounts, Webster said he found ample proof in the public record that proves the state control law on the books should be thrown out and the police board disbanded.

Last month, Webster asked U.S. District Court Judge Beth Phillips to let him file an amended complaint with this information in it. If allowed and the judge finds the argument convincing, Webster said, the state control law could be declared unconstitutional and many of the other allegations in the complaint would be moot.

Bailey, Ashcroft and Parson oppose the motion to amend the complaint and want the case dismissed. Phillips has not ruled yet.

Separately, Webster filed a “petition in mandamus” in Jackson County Circuit Court on July 6 asking that the control law be declared null based on the pencil-mark facts alone. That case is before Judge John Torrence, who has set a case management conference for Oct. 30.

The attorney general’s office did not respond to The Star’s request for comment nor did the attorney who is representing the police board of commissioners. Mayor Quinton Lucas, who is a member of the police board and advocates for local control, was traveling and unavailable for comment.

Among Webster’s legal allies is Arthur Benson II, the attorney who successfully argued the landmark school desegregation case in Kansas City. Benson was so impressed with the lawsuit that he signed on as co-counsel.

“I believe in Spencer and the case he has put together,” Benson said in a text message.

He declined further comment other than to say “it’s a fascinating issue.”

KCPD funding on the ballot

Renewed support for local control of the KCPD grew across the city during the summer 2020 protests, which called for racial justice as part of a nationwide response to the police killing of George Floyd. Some activists also wanted to reduce police budgets.

The local control issue again resurfaced with Amendment 4, a 2022 measure which mandated Kansas City increase the amount of the general revenue it spends on the police department from 20% to 25%.

The measure faced criticism from local officials who argued voters across the state shouldn’t decide how a municipality makes public safety decisions.

More than 63% of Missouri voters approved the measure in November 2022.

But the Missouri Supreme Court tossed the results in April, finding that voters were misled by the language on the ballot.

The crux of the court’s decision focused on the fiscal note summary that voters saw on the ballot, which said that “local governmental entities estimate no additional costs or savings related to this proposal.” The court found that this was misleading.

The amendment was placed back on the ballot, and voters will again cast their votes on the funding question on Aug. 6.

Kansas City has often funded the police department at or above the 25% threshold. The $317 million budget approved this year was 25.03% of the general revenue, according to the mayor’s office.