Legal Loopholes

Vandalism isn't a crime in St. Louis. Just ask the police.

Attorneys for protesters arrested during a police crackdown in the days prior to the World Agricultural Forum in May say they are preparing for an all-out legal battle.

At the same time, officers suspected of vandalism during the crackdowns are being shielded by the department, which refuses to publicly disclose investigative documents that could show whether officers broke the law and how thoroughly the department investigated allegations against police.

Attorneys for the protesters made their first appearances in St. Louis municipal court on July 29. The cases were continued until September 11. Rory Ellinger, lawyer for more than a dozen people who were arrested, says he'll enter not-guilty pleas and demand jury trials on the alleged violations of city ordinances.

"We expect all this stuff to continue for many months to come," Ellinger says. All told, at least 27 people were arrested or cited, most for impeding traffic while riding bicycles in Tower Grove Park and occupying two condemned buildings where protesters were staying. Ellinger says he's not sure exactly how many people he will represent, but he believes the number exceeds twenty. "We keep coming up with an extra person coming forward saying, 'Did you know I had this ticket?'" he says.

Justin Meehan, lawyer for eight people who were arrested, says the city should expect a fight. "This is the first broadside salvo of the war," he says. "My intention is to set these cases for trial."

While protesters prepare for their day in open court, police refuse to make public an investigation into officers accused of slashing tires on bicycles seized from protesters and damaging property inside the condemned buildings. Protesters and their attorneys say clothing and other belongings inside the buildings were soaked in urine. Meehan says one protester found a moustache scrawled on a photograph of her boyfriend.

In June, Police Chief Joseph Mokwa ordered an internal-affairs investigation, promising that any officer found to have damaged property would be disciplined. From the beginning, Mokwa has leaned toward keeping the investigation secret. In a June interview with the Riverfront Times, the chief answered "probably not" when asked if the internal-affairs report would be made public.

When the Riverfront Times formally requested a copy of the internal-affairs reports under the state Sunshine Law, the department denied the request, saying the documents were exempt from the law because they concerned personnel matters. That's long been a standard answer in Missouri, where police have routinely cited the Sunshine Law's personnel exemption as a reason to keep internal-affairs investigations confidential.

The legal landscape changed two years ago when the state Supreme Court unanimously ruled that internal-affairs reports are public records that must be disclosed under the Sunshine Law if investigations involve suspicion of criminal conduct. When the Riverfront Times brought the 2001 decision to the attention of St. Louis police, the department again balked, saying the Supreme Court ruling doesn't apply, even though the investigation wasn't finished.

"The Internal Affairs reports are still not completed," wrote Michael F. Stelzer, general counsel to Mokwa and the Board of Police Commissioners, in a July 8 letter to the newspaper. "The nature of the complaint does not involve criminal behavior."

"That's obviously ludicrous," says Susie Chasnoff, a member of the Coalition Against Police Crimes and Repression, which wants the city to establish a civilian review board to investigate cases of police misconduct. "They have slashed tires and urinated on things. They're obviously investigating them for criminal misconduct because of things like the slashed tires."

In an interview, Stelzer explains that slashing tires and damaging property with urine aren't crimes, at least in the city.

"Our view of it, and when I discussed it with [internal-affairs commander Lieutenant] Colonel [Stephen] Pollihan, he said at most you may have a city ordinance violation by the officers," Stelzer says. "And if you did have that -- and I did my own research on this -- that's not criminal. In Missouri, ordinance violations are considered civil in nature, even though the standard of proof is still reasonable doubt."

In other words, so long as the police call it an ordinance violation, officers and internal-affairs investigators are safe from scrutiny under the Sunshine Law, at least in the department's view. Stelzer says he doesn't know how a property-destruction case against an officer who slashed bicycle tires or urinated on private property could be prosecuted except as a city ordinance violation.

But the police department does not have the power to decide if an offense is an ordinance violation or a crime under state law. That's a decision for prosecutors. And the sort of vandalism police allegedly engaged in is a crime under state law. The language of the statute is unambiguous: "A person commits the crime of property damage in the second degree if he...knowingly damages the property of another" (Missouri Revised Statute 569.120). If vandalism is a criminal offense, then internal affairs is investigating alleged criminal behavior -- and the internal-affairs investigation should be a public record, based on the two-year-old Supreme Court decision.

Scott Holste, spokesman for state attorney general Jay Nixon, says circuit attorneys have the authority to prosecute under state criminal statutes, regardless of city ordinances. That's not just theoretical, according to Jeannette Graviss, chief warrant officer for St. Louis Circuit Attorney Jennifer Joyce. Graviss says her office has filed misdemeanor charges under the state's second-degree property destruction statute. Whether that happens can depend on police, who decide which cases are presented to the circuit attorney for prosecution under state law and which ones go to the city counselor as ordinance violations. But cops don't have the final say on whether an offense should be handled as an ordinance violation or a violation of state law. Graviss says her office evaluates each case presented by police and decides whether to dismiss it, file charges under state law or refer it to the city counselor's office as an ordinance violation.

The department's position that the alleged destruction of property by officers isn't a crime doesn't pass the smell test for Dan Diemer, a former St. Louis County prosecutor who is now a criminal-defense lawyer. "That's double-talk," Diemer says. "Even an ordinance violation is a crime per se. It's punishable by both fines and jail time. Under the definition of criminal punishment, they can take away your liberty, they can take away your money. I think they're trying to hide behind calling it a civil case as opposed to a criminal case." Diemer also notes that if officers acted together in damaging property, they could be charged with conspiracy under state law, a charge that doesn't exist under city ordinances.

Stelzer doesn't dispute that the internal-affairs investigation could touch on potential violations of state conspiracy statutes by the officers, but he blames protesters for blocking that line of inquiry.

"I guess if we could get some of these people to talk to us, we could get some evidence of that, but that's one of the problems we're having," Stelzer says. "The people who own the bikes are not talking to us, as a general rule. I'm not saying every single one of them, but my understanding is they are not being forthcoming as far as giving us statements."

The department's secrecy in internal-affairs investigations extends to cases beyond vandalism. According to the St. Louis Post-Dispatch, Pollihan, the internal-affairs commander, declined in July to discuss an investigation into a police major suspected of fixing a DUI ticket, saying the case was confidential because it concerned a personnel matter.

It's an old story for John Chasnoff, Susie Chasnoff's husband. He says public access to internal-affairs investigations are "absolutely crucial," but that never happens in St. Louis.

"Time after time, they say that they'll investigate themselves, but no reports are ever issued, complainants are not given the results of investigations and there's no reason to believe that investigations are even thoroughly completed," he says. "In this World Agricultural Forum case, the police vowed there would be an investigation, but nothing's been issued publicly to let the public know the department is holding itself accountable. For the department to claim that their investigation didn't include any look into possible criminal violations tells me that they haven't conducted an adequate investigation."

Attempts to force an independent investigation into possible police misconduct in connection with the raids and arrests have failed. Green Party activists in June demanded an aldermanic probe, but aldermanic president James Shrewsbury said such an inquiry isn't the board's job because aldermen don't control the police department. Don Fitz, a Green Party spokesman, says he would "love" to see internal-affairs reports, even though he doesn't trust the department to investigate itself. "Those are my friends who had their stuff urinated on and their house trashed," Fitz says.

Fitz says the notion that the reports aren't public because the cops aren't suspected of crimes is absurd. "I don't think it's even splitting hairs," Fitz says. "It's just ridiculous to make that argument."

Matt LeMieux, executive director of the American Civil Liberties Union of Eastern Missouri, says he's not an expert on the Sunshine Law. But he does say that the police penchant for secrecy isn't helping the department's credibility.

"The only opinion I have is if the chief is interested in repairing any of the damage that was done, you would hope he would be a little more open about this," LeMieux says.

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