Legal Roundtable Discusses Lingering Ferguson Issues, New Missouri Laws
Legal questions surrounding Michael Brown’s death and events in Ferguson again dominated the conversation among our legal roundtable.
Justice Department Investigations
The Justice Department has three roles in Ferguson, said William Freivogel, director of the school of journalism at Southern Illinois University in Carbondale. First: A criminal investigation, independent of the state’s investigation.
“That would become relevant if there is not an indictment at the state level or it even could become relevant if there is an acquittal at the state level on state charges,” Freivogel said. “The federal criminal investigation is to figure out did Officer (Darren) Wilson violate the civil rights of Michael Brown. If Wilson is not convicted in a state prosecution, the federal government could file a civil rights case against him and he could be criminally convicted in federal court.
“That’s a very hard case to win.”
A local grand jury is going through evidence; a federal grand jury has not been formed.
“There’s only a federal prosecution if the federal interest is not vindicated by the state prosecution,” Freivogel said. “In other words, if the guy gets off or just gets a hand-slap and it’s a really serious thing.”
Even then, a federal grand jury would have to weigh the evidence.
“They have to independently determine if there is sufficient probable cause for them to go forward,” said Peter Joy, a law professor and director of the criminal justice clinic at Washington University in St. Louis. “If something comes out at the trial that would show that the police officer shouldn’t be convicted, then that would be the end of it even at the state and federal level.”
In the state case, St. Louis County Prosecutor Bob McCulloch has not recommended charges, which some have said is unusual or an indication of bias. But not all cases come with recommendations, Joy said.
“Here, that suggests to me that Officer Wilson is asserting some kind of an affirmative defense that he was entitled to do what he did and so the prosecution is letting the grand jury decide,” he said. “In those kinds of cases, where there is a self-defense or consent or something here where you’re authorized by statute perhaps, that wouldn’t be unusual.”
The Justice Department announced on Sept. 4 that it would investigate police tactics in Ferguson.
“The Justice Department is looking at various practices: use of force, is there any kind of racial profiling, what are the practices as far as disciplining officers, how are people treated in holdovers, an array of police practices within Ferguson,” Freivogel said. “That could result either in a consent agreement with the city to change its practices, or it could result in a lawsuit.”
These pattern or practice investigations often end in a consent decree, said Mark Smith, associate vice chancellor and director of the career center at Washington University.
“That doesn’t mean everything’s great afterwards,” Smith said. “Even if there’s some kind of consent decree, (that) doesn’t mean you’ll actually get satisfaction. That’s what, I think, is coming out of a lot of these lawsuits: You’re not necessarily going to get the satisfaction or the ‘justice,’ in quotes, that some people are looking for.”
Last, the Justice Department’s Office of Community Oriented Policing Services is working with local police departments to improve processes. That work does not involve the courts; COPS does not have the power to file a civil lawsuit, Freivogel said.
Establishing A Civilian Police Review Board
Last week, the Ferguson City Council announced it would create a citizen review board. But the board’s powers are limited — it cannot, for example, subpoena officers.
“I think most police reform advocates would say that for a police review board to have teeth, it has to have subpoena power and an investigative staff,” Freivogel said.
Ferguson Mayor James Knowles said granting those rights would mean changing Ferguson’s charter, which would require a citywide vote.
“Even with subpoena power, the police officer who is accused has certain constitutional rights, and I think sometimes people forget that,” Smith said. “If the police department is doing the investigation, they can’t force the police officer to give a statement about what happened, and say … ‘If you don’t give the statement you’re going to be fired’ because in the Garrity case the Supreme Court said no, you’re taking away his right to self incrimination by saying you’re going to lose your job.”
Most police departments conduct two investigations, Smith said: A criminal investigation and a second for internal affairs. Officers can give what’s called a Garrity statement, which will only be used for the internal affairs investigation.
“Outsiders don’t like the police department investigating themselves,” Smith said,” and that’s how it’s viewed right now.”
Eliminating Fees In Ferguson
The Ferguson City Council also proposed changes to its fine collection practices last week.
Several communities, including Ferguson, are “using the police department as their own ATM,” Joy said. “These speed traps and all these fees and fines end up being a way to try to keep the tax rate low.”
“What happens is an individual gets caught in this circle that essentially serves as a proxy for debtor’s prison,” he said. “Because they can’t pay the fine, additional fees get levied, they don’t show up because they don’t have the money to pay and they’re afraid, then they get stopped while driving their car for some kind of minor infraction, they’re thrown in jail, then they have to wait for several days before get back before a court to have a judge look at what’s going on.”
Body Cameras For Police Officers
Ferguson police officers now are wearing body cameras. St. Louis public safety director Richard Gray said last week that the city also was looking into purchasing body cameras for its officers to wear on duty.
“I think it’s a good thing for a couple of reasons,” Smith said. “One, departments that have instituted these have seen a decrease in the number of use-of-force complaints. If you know you’re on film, you’re going to act better. I think it clears up the situation because you have this recording.”
But there are other issues. In St. Louis, Gray estimated that each camera will cost $1,200. That does not include maintenance or data storage costs. Ferguson’s body cameras were donated to the department following Brown's death.
“Retaining the records, I think it’s going to be very expensive to do,” Smith said. “You have to retain all of that footage. You’ve got to come up with some procedure to dispose of it, but keep the stuff that’s going to trial.”
Use also must be enforced.
“There are a lot of police cars that have cameras mounted on their dashboard and they’re not being operated when stops are being made and they should be operated,” Joy said. “It really depends on a police department that’s going to adopt something like these cameras to have a policy that it really enforces because without enforcing it, what you find is that ‘Oh, we’re sorry, we didn’t record this time’ and there’s a citizen’s complaint.”
72-Hour Abortion Waiting Period
On Sept. 11, during the Missouri General Assembly veto override session, Missouri became the third state to require a 72-hour waiting period before a woman can obtain an abortion.
“It’s an invitation to a lawsuit,” Joy said. “That’s going to be challenged and the issue — 72 hours, then we’re going to have 96 and before you know it we’re going to have a nine-month ban. These laws that continue to cut back on a right, and a woman has a right of choice, those will be challenged.”
Override Expands Gun Rights
During that same veto override session, a broad gun-rights bill was approved. It allows school districts to arm teachers, prevents municipalities from barring people from openly carrying firearms and lowers the state’s minimum age to 19 for concealed carry permits.
“This is the issue that so divides the state between urban and rural,” Freivogel said. “Someone remarked to me the other day ‘How long would this kind of law be in effect if the protesters in Ferguson showed up with assault rifles?’ I don’t think it would last very long.”
The legal roundtable members said the law can be reversed. “The citizens could pass a constitutional amendment or a referendum that would throw this out,” Freivogel said.
Smith said the legislature also could overrule it, but he said that is unlikely.
Death Penalty Drug Use Questioned
A St. Louis Public Radio investigation revealed that the state of Missouri has used significant amounts of midazolam during executions. A state official previously said during a deposition that the state was not using the controversial drug.
“It doesn’t do much for confidence in the government when you have the representatives of the government not being straight with the court,” Joy said.
“But the other thing that I think is really troubling is that the courts are saying ‘Well, we’re not going to stop the execution unless the person condemned to die is going to suggest a better way for the state to kill them,’ ” Joy said, citing Zink v. Lombardi. “I’m waiting for a defendant to say ‘OK, restore the guillotine and have my head chopped off. That’s the way I prefer to die,’ and then see if the state’s going to go ahead and do it.”
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