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There's a Cover-Up in Ferguson

By Paul Rosenberg, Salon

16 September 14

 

Basic evidence is being kept from the public. And investigators aren't showing proper zeal to figure out the truth

re the police departments of Ferguson and St. Louis County, Missouri, involved in a conspiracy to obstruct justice in the case of Michael Brown’s murder? It seems disturbingly possible, given their actions over the past month, hiding basic evidentiary information from the public in direct violation of the state’s sunshine laws—and  perhaps not even gathering it in the first place. This raises the further possibly that evidence is being hidden from criminal investigators as well, particularly since the investigators have shown no great interest, much less zeal, in getting to the truth of the matter.

On Aug. 15, the world saw Ferguson Police Chief Thomas Jackson belatedly release Darren Wilson’s name—and no other information at all about the killing of Michael Brown—while at the same time releasing a report (followed by a video) on an unrelated robbery that Brown was apparently involved in. On Aug. 20 and 21, first St. Louis County, then Ferguson released incident reports on the shootings—reports virtually devoid of any information. These highly questionable revelations stirred a fair amount of public outrage, but few people seemed to realize how truly sinister they were, or how they connected to much broader patterns of official lawlessness that have long bedeviled St. Louis County, and Missouri more generally, as well as many other jurisdictions across the land.

On Sept. 5, TheBlot magazine reported that Chief Jackson had lied on Aug. 15, when he claimed that he released the robbery report and video because of numerous media requests. Public records released to TheBlot showed that no one had specifically asked for either of them, while many people had asked for information about the killing of Michael Brown, which Jackson refused to release at that time.

Chief Jackson’s press statement at the time thus contained at least two big misstatements—first that information about the robbery was released because of media requests, and second that he was releasing all the information requested relative to the shooting of Michael Brown:

“So, we’ve had this tape for a while, and we had to diligently review the information that was in the tape, determine if there was any other reason to keep it, anybody else that would be charged with a crime, and we had determined that that was not going to be the case. We got a lot of Freedom of Information requests for this tape, and at some point it was just determined we had to release it. We didn’t have good cause, absent any other reason to not release it under FOI. So we decided, the same time, wouldn’t be prudent to release that information, which could be a little bit…i don’t know… well, we needed to release that at the same time we would release the name of the officer who was involved in the shooting, so that we could just keep open, give you all the information that we have. We’ve pretty much given you every bit of information that we have now, I don’t think there’s anything else that we have to give out.”

But while Jackson’s high-profile statement may have been outrageously false and misleading, it’s the underlying actions of his department in the shadows that are downright criminal, part of a seemingly routine pattern of actual lawbreaking by the police themselves, both in Ferguson and St. Louis County—a persistent pattern that hasn’t stopped, according to emails provided to Salon even though the Department of Justice has announced it’s going to investigate both organizations.

In fact, police are now using the DOJ investigation itself as an excuse for further violations of the sunshine law, relating to arrests of protesters who continue demonstrating in Ferguson, according to emails provided to Salon (details below). The emails come from Charles Grapski, a legal and political theorist and political scientist, as well as an active citizen with decades of experience filing public records requests, including work with local activists and lawyers in different states across the nation.

“It’s made me public enemy number one in the state of Florida,” Grapski said. It was Florida that first enacted sunshine laws, giving them their name. But that doesn’t mean public officials love them any more there than they do elsewhere.

It was Grapski, who now blogs for Photography Is Not a Crime (PINAC), who aggressively pressed for the release of police documents after the ACLU and others had been stonewalled, and the ACLU had filed suit—a suit that is still pending.

Anthony Rothert, of the Missouri ACLU, explained that the lawsuit only reflected one aspect of the ACLU’s concerns. “When this incident happened in Ferguson, the ACLU had several concerns,” he said, “among them being the First Amendment rights of protesters, and the militarized police response, but one of the pieces of it was transparency in the investigation.”

This was not an unusual situation, he explained:

I don’t think it’s unique to this story that police departments often operate with lack of transparency, and that really deteriorates the trust that the community has in the police departments. So you have a pretty good law in Missouri, on paper, the Sunshine Law requires incident reports to be made public, and arrest records to be made public, right away, and requires investigative reports to be made public at conclusion of investigations. But time and again police departments do not release those records unless it is favorable to them.

The ACLU, though a thorn in the side, is part of the legal system. Working through the courts is the lifeblood of what they do. But Grapski’s approach is more of an outsider’s one—and thus, more blunt. Thus, he unabashedly points out that both Ferguson and St. Louis County police have clearly broken the state’s open records law by holding back incident reports about the shooting, which should have begun with a report by the officer involved, Darren Wilson, while Ferguson is also withholding a use-of-force report, which should have been generated by Wilson’s commanding officer and gone up the chain of command all the way to the chief. Grapski has posted highly detailed accounts of both failures in two blog posts at PINAC (incident reports, Aug. 25/use of force reports, Aug. 29), with extensive documentation, including pdfs of relevant rules and regulations, as well as the correspondence involved.  (More on these below.)

“Ferguson is deliberately violating both the laws and its own policies to prevent any information from being produced and made public that could be used to hold Officer Wilson to account for his actions,” Grapski wrote in the Aug. 29 post, and he repeated this in interviews with Salon.

“They are committing criminal offenses themselves,” Grapski said of both police departments’ public records violations. “It’s not a high crime, but it is class A misdemeanor, punishable by up to year in prison, and a pretty significant  fine, by withholding, by knowingly not complying with the public records law. The records law has teeth, and that is it has criminal sanctions.”

Rothert told Salon something similar, but slightly different. “From what we can tell right now it looks like the Ferguson Police Department never did an incident report,” he said, “which would be contrary to their policy, it would be contrary to the law, and quite, quite suspicious, not to take even an initial statement from someone who’s killed another person.”

Grapski believes the report was created, but then buried. Originally the ACLU was told that the report existed, but that it could not be released due to the bogus claim that it was an investigatory document (which it is not, under Missouri law). However, it may take a trial, with full discovery, to finally settle the matter of what was created when. Either way, however, the police have not followed procedure, violating both their own internal policies and Missouri state law. Is there a sinister conspiracy involved as well? Or is this just business as usual? Or does business as usual include and promote sinister conspiracies as a matter of course? These are the questions raised by the ongoing cover-up of public records surrounding the killing of Michael Brown, and the ongoing protests as well.

Two distracting lies have been floated with particular damage to public understanding of the ongoing cover-up, both of which Grapski has meticulously refuted. First is the claim that such reports were not public records—a claim that depends on confusing standard police reports identified as public records under law with investigative reports undertaken in special circumstances, which rely on standard reports as their starting point. Second is the claim that no report had to be filed, because of Wilson’s Fifth Amendment protection against self-incrimination. This neglects the existence of the use-of-force document, which should have been created by another officer by direction of his watch commander, and it misconstrues Wilson’s obligations as an officer, which require him to file an incident report, even if it implicates him in a crime. He can, of course, refuse to file that report. But that refusal is itself a policy violation, and grounds for immediate firing—none of which consequences Wilson has faced.

Although such details have remained obscured from public view, they are well understood by insiders. For example, the ACLU’s initial Aug. 12 request for the incident report on Michael Brown’s shooting clearly distinguished the report they were asking for from the any investigative report which properly could be withheld until the investigation was complete. In a footnote, the ACLU specifically noted that “Unlike ‘investigative reports,’ which may be closed until the investigation becomes inactive, ‘[a]ll incident reports and arrest reports shall be open records.’ Mo.Rev.Stat.§ 610.100.2.”

Yet, despite this clear presentation of the law—with a specific citation—police officials not only ignored what was legally required, they pretended to the broader public that there was not even a question to be raised.

But it’s the work of Grapski, who speacializes in the use of sunshine laws to empower citizens and hold government officials accountable, that illuminates the big picture of what’s going on in this case.

“We cannot wait for ‘leaders’ to do the job for us. In fact that notion of leadership–or authority–is part of the problem that got us here in the first place,” Grapski told Salon. “We all must ‘lead’ as citizens–which is the highest office in a democratic society.”

Grapski’s Aug. 25 blog post documents a detailed investigation, first aimed at trying to get public information about the shooting, then at documenting the lawbreaking involved in thwarting that effort. At the beginning of his post, Grapski explains:

Let me explain how these reports were released in response to citizens filing legal demands under Missouri’s Sunshine Law – and then show how further public records requests have revealed that the Police officials are “knowingly” refusing to comply with the law and the rules on what these reports MUST contain and that the public is ENTITLED BY RIGHT to have that information. The unlawful denial of the records is a civil violation of the law – but the “knowing” violation constitutes a Class A Misdemeanor in Missouri.

Grapski begins by laying out how others initiated the process. (He explained to Salon that he had been heavily involved in ongoing activities in Albuquerque, New Mexico, since May—the site of almost 30 police killings since 2010, and the subject of a scathing DOJ report—but was keeping on eye on things in Ferguson, until he saw the system failing.)

The story begins on Aug. 12, when the Missouri ACLU made a public records request under Missouri’s sunshine law–asking the St. Louis County Police Department for its incident report of the shooting. In its request, the ACLU specifically asked, “If any part of this request is denied, please send a letter listing the specific exemptions upon which you rely for each denial and provide the contact information for the official to whom I may appeal. Mo. Re. Stat. § 610.023.4,” and—as noted above—in a footnote it stated that “Unlike ‘investigative reports,’ which may be closed until the investigation becomes inactive, ‘[a]ll incident reports and arrest reports shall be open records.’ Mo.Rev.Stat. § 610.100.2.”

Nonetheless, the next day, the request was denied with a handwritten note signed “St. Louis County PD — Record Room” which simply said: “in ref to your request for incident report involving Michael Brown. This is an on-going investigation and we are unable to release a copy at this time.”

The next day, the ACLU filed a lawsuit to compel the county to produce the record — and for other relief. The National Bar Association also filed suit on Aug. 18.

In his post, Grapski comments, “At that point in time – the Police Department DID NOT produce the record because of the lawsuit – but was ready and willing to use that process of DELAY to keep denying production. This was soon to change.” It changed because Grapski became involved. On Sunday, Aug. 17, he submitted his own public records request, adopting a much more no-nonsense tone:

THIS IS NOT a request for records of the INVESTIGATION into this matter. Thus if you respond to this that these records are not available at this time because of an ongoing investigation — you will be VIOLATING THE LAW and as this is notice to you that there is no such exemption pertaining to INCIDENT REPORTS in Missouri law — if you make such a claim — your violation will be KNOWING and WILLFUL — and will constitute not only an offense under Missouri Law but will constitute a knowing and willful violation of your OATH OF OFFICE.

At the same time, Grapski told Salon, “I took a weekend to try something I’d never done before, but I’ve been planning on doing.” He reached out “to get a lot of people making the request, because it proves people are watching, and people are interested. It proves that this is an issue of great public importance, and it adds potentiality for multiple litigants, which puts them on guard.” First via PINAC, and then other channels, he spread the word, “and by Monday morning we had about 160 people making the request.”

Grapski then did what he always does when officials are already playing games—he put in a phone call to the responding official, Lt. Burk. Burk’s initial response was “a little offputting,” Grapski said: Burk claimed that the county PD’s email had been down all weekend. “Later it turned out that they were blaming this on an alleged anonymous attack, but I actually don’t think they were attacked,” Grapski added. “I think they actually turned their email system off over the weekend.” So he had to resubmit his request, and re-contact everyone else who had participated as well.

But once Burk acknowledged receiving the email, he seemed to strike a much more conciliatory tone. “He said to me on the phone that day, it is a public record and it’s not exempt, contrary to what was sent from his office to the ACLU,” Grapski said.  Things still got delayed—Burk explained that he got called out into the field to Ferguson on Tuesday, but emailed Grapski to say “they would have it next thing next Wednesday morning, which is when I got it.” But then came the next couple of hitches. First, the timing, then the content.

“When I looked at the document, it doesn’t even get created until that Tuesday and then it’s signed off on by the supervisor that Wednesday, so there’s all sorts of games going on. And then when I got it, I immediately called him and I said, ‘This is the most ridiculous looking thing I’ve ever gotten in response to a public records request. There’s nothing in it!’ He said, ‘Well that’s what’s legally required.’ And I’m like, ‘That’s just not the case.’”

In his blog post, Grapski explained:

He stated to me that the Legal Division had stated that Incident Reports only contained THREE items of information: Date, Time, and Location. I told them that was not the case – at least not in any agency I had ever seen. In fact I brought to his attention the Incident Report of the alleged robbery by Brown that the Ferguson Police eagerly released [pdf here] – with no purpose other than to discredit Brown and portray him in a bad light – in the “defense” of the officer. Clearly if that Report was routinely filed, this one should be. If that Report was releasable and not exempt from the Public Records Law, this one too should be.

Going further, Grapski then researched Missouri’s sunshine law,  the relevant portion of which reads as follows:

610.100 Revised Missouri Statutes:

(4) “Incident report”, a record of a law enforcement agency consisting of the date, time, specific location, name of the victim and immediate facts and circumstances surrounding the initial report of a crime or incident, including any logs of reported crimes, accidents and complaints maintained by that agency;

Obviously, the police were still playing games, placing themselves above the law.

The local police were playing games as well. “Ferguson, if you remember, told the press, and told people requesting it from them, that because it hands the incident over to the prosecutor there was no report. Well, they then released a report, but it was heavily redacted; they redacted everything out to comply with this three-item idea that was put forth by the County police – day, time, location. So they stripped everything else out, but left in was the date it was created; and I’ve also got another record to show that there was something created on the ninth, as a report,” but it apparently wasn’t completed.

If you’re getting confused, you should be. The creation of confusion seems to be part of the intent. Clarity would lead to Darren Wilson’s arrest and conviction. Clarity would lead to justice. Obfuscation is the order of the day. But even those pursuing the hidden records are seemingly not immune to the confusion being spread. As already noted, Grapski argues that the St. Louis County report was created after he requested it—and hence is not the same report that the county previously refused to release to the ACLU.

But according Rothert, the ACLU itself  isn’t so sure. “Yes, I think it’s possible,” he said of Grapski’s account, but quickly warned, “We’re not sure what the dates mean. Maybe the dates are when they printed them out.” This stands in sharp contrast to what he said above regarding the Ferguson police—that the ACLU doubts they ever did an original incident report. But they intend to find out. “One of the benefits to being in litigation about it is we will be able to do some depositions and ask,” he added.

Grapski’s post also shared what he uncovered in Ferguson’s policy on police report procedures, regarding incident reports. “And this really spells trouble for the Ferguson Police,” he noted. Here’s what the policy says about when incident reports are required:

406.02 REPORTS

A. When Required: Officers are required to complete written police reports when the following incident(s) are reported:

1. violations of law or ordinance

2. arrests for any charge

3. use of force

4. motor vehicle traffic crashes as defined in General Order 486.00

5. protective custody

6. damage to city property

7. any situation which may result in civil action or complaint against the department

After presenting that information, Grapski wrote: “Clearly (1), (3), and (7) – and possibly (2) since the clear intent was to make an arrest of Brown – apply to Darren Wilson and this incident. Thus HE was REQUIRED to file – at minimum – an Incident Report (also a Use of Force statement – which is also pending production upon a request that I have filed…).”

The requirement for the missing narrative details is underscored by another section Grapski also quotes: “C. Information required in reports: The I.T.I. computer report system has required fields for data entry. In addition to completing these fields, an officer’s narrative as to the nature, facts and officer actions are required in all reports.”

Thus it is clear from multiple sources, in both state law and Ferguson police policy, that public information is being illegally withheld.

In his post, Grapski also goes into more detail about what Missouri law says regarding penalties, and he takes up the issue of Wilson’s purported Fifth Amendment defense, as mentioned above. He explains why it fails in greater detail, noting that “an Incident Report is not testimony in an investigation by the government agency into the actions of the officer,” which is why it can be compelled. Refusal to complete it is grounds for firing. Furthermore, a Fifth Amendment claim would also create a public record, which does not exist:

[I]f an officer does invoke their fifth amendment right, they must do so explicitly and formally. Thus if such an invocation of the right against providing self-incriminating testimony occurred on the part of Officer Wilson there would, again, have to be a public record to this effect. So I made that request of the Ferguson Police Department. In their response, that there was no such record, they have thus answered the question: No, Wilson has not invoked the fifth amendment.

In the end, he concludes:

This is thus evidence that both agencies – and thus their commanding officers – deem themselves to be “above” the law. Evidence that they approach the law, and law enforcement, without an actual respect for the law. And that they believe there are “two sets” of laws – one that they enforce on “us” the citizens, and another for “them.”

Herein lies the core of the problem with the out-of-control police across the country.

It thus becomes incumbent on the Citizenry itself to hold them to account and to force the system to enforce the law upon the agencies they entrust with authority and the power to exercise it.

Grapski’s Aug. 29 post looking at use-of-force documents is similarly revealing, with multiple, intricate twists and turns. However, the key take-away is strikingly simple: Not just officer Warren, but his entire chain of command was derelict in its duties to file a use-of-force report. The regulations Grapski obtained clearly spell this out, when a weapon is discharged:

3. The watch commander shall respond to the scene and be responsible for the command and protection of the scene until the arrival of the Bureau of Investigations investigator(s). He shall assist, as necessary, in the investigation of the incident and arrange to have a police officer, not involved, prepare the original report.

4. The watch commander will complete the Use of Force Report F-080 and forward it through the chain of command to the Chief.

5. The Chief of Police will direct the Professional Standards Officer to conduct an administrative review of all incidents where a gunshot wound is inflicted.

So far, no reports have been furnished. Whether any of the required procedures were followed remains to be seen. At the end of this post, Grapski concludes:

We have proof of one thing: the entire department (actually two departments) are actively defying the law and their policies to cover-up the facts of what Officer Wilson did that day. And to deny the right of the public to obtain those facts in the records the police are required to keep.

In this case, therefore, there is ample reason – in fact actual evidence – for the public to have no faith or confidence in anything these Departments, their officials, or the officers employed therein do or say. And certainly there is no reason to trust that they can honestly and faithfully participate in the process inquiring into and investigating the shooting by Officer Wilson.

The problem is not limited to these two entities, of course. As Rothert noted, “time and again police departments do not release those records unless it is favorable to them.”

Grapski’s big-picture view is clear. “We must become fully committed to becoming ACTIVE Citizens once again within a democratic society and with a democratic form of governance,” he told Salon in a followup email. “Democracy is still ‘self-governance’ even when we add to it mechanisms of representation or delegation of authority. The ultimate responsibility still lies with the Citizens to be the driving force in society. Those other ‘official’ actors are not the leaders of our society/nation — but the means whereby the Citizens themselves direct our present and shape our future.”

Sunshine laws are crucial to this process—without them citizens can’t possibly direct anything significant, except in the most broad-based terms, and that low-resolution standard is what we’ve been told we should be overjoyed with. And if it requires human sacrifice from time to time…

Well, usually it doesn’t, right? Usually it’s much more low-key. When the national attention fades away, and things return to “normal.” Which is what’s now happening in Ferguson, as the same old patterns continue—but with a new twist.

On Sunday, Sept. 7, protesters were arrested for “Manner of Walking”—which is not an arrestable offense, and “failure to comply,” which Grapski explains is how traffic-law style violations are turned into arrestable criminal offenses, thus intimidating protesters as a whole, as well as the wider community. Grapski sent a public records request for incident reports the following day, Sept. 8. Three days later, Grapski received a response from Stephanie Karr, a private attorney who serves as Ferguson’s city attorney—a common practice in St. Louis County, stating in part:

Please be advised that it will take longer than three (3) days [the legal maximum] to process the request. The Department of Justice is currently reviewing those same records and they will not be available for City officials to retrieve, review and copy them until sometime later. The Justice Department has not provided a date by which their review of those records will be complete.

To which Grapski responded the same day: “The DOJ reviewing of those records should not prevent your compliance with the state’s Sunshine laws. Your responsibilities remain — and you need to get a COPY of the records from the DOJ to be in compliance with MO law.”

In short, Ferguson is not only continuing its pattern of violating Missouri’s sunshine laws, it is now seeking to implicate the DOJ as co-conspirators! Apparently, such is the depth of its institutional commitment to lawlessness.

But the actions of those responding to the emails are only symptoms of the real problem, Grapski said. “I believe the ‘front people’ are not the core of the problem. I believe they are being given ‘instructions’ at every step as to what to respond — by the lawyers for the different agencies. And those lawyers know exactly what they are doing.”

In light of this pattern, Salon asked Grapski just how useful the DOJ investigation could be, and how much trust could be placed in the façade of inter-agency cooperation that the DOJ and the two local police departments have presented recently.

“The DOJ investigation is a step in the right direction, but it’s not the solution,” Grapski said. He noted that he’s still active in Albuquerque, again citing the DOJ’s “scathing review” of local law enforcement. But, he noted, due to lack of transparency, the community there still doesn’t feel it’s a part of process of correcting the system.

It’s not something others can do for us, Grapski argues. It’s up to us, as active citizens, to do it for ourselves.

Looking forward in Ferguson itself, Grapski has secured a lawyer to pursue legal action against police departments, with his sights set on going all the way to Missouri’s supreme court, if necessary. The law may be very good on paper, as the ACLU has said, but to give it teeth, the highest court in the state may well need to weigh in. The lawyer has offered to do most of the work pro bono, Grapski told Salon, but he’s opened a fundraising site to raise the initial $5,000 retainer. The continued shenanigans, trying to use the DOJ investigations as a shield, are just the latest indication of how deeply entrenched the resistance is, and how great the need is for a sweeping change.