City of St. Louis ‘betrays’ its pledge to alter legal positions protecting abusive police, critics say
Six months after St. Louis Mayor Tishaura Jones’ administration promised to reconsider its defense of legal doctrines that protect abusive police, it is continuing to defend them, prompting charges of “betrayal” from civil rights lawyers.
In campaigning for office, Jones spoke frequently about the need for greater police accountability, citing the deaths of George Floyd in Minneapolis from a knee on the neck and Breonna Taylor in Louisville from a botched no-knock raid.
Six months ago, St. Louis Public Radio asked the mayor’s office why it still was going all out to defend St. Louis police in similar cases – the death of Nicholas Gilbert in 2015 in a case of prone restraint with six officers on top of his manacled body and the police killing of Don Ray Clark Sr. in 2017 in a no-knock raid on the 63-year-old veteran’s home in Dutchtown.
Jared Boyd, the mayor’s chief of staff, said then that the city would reconsider its legal positions and that the new city counselor would take a new look at “what winning looks like…It’s not to say we shouldn’t be cognizant of city resources, but that can’t be the only thing” as it has been traditionally, he said.
Those words have been thrown back at the mayor’s office in recent days by civil rights lawyers, by two of the town’s best-known columnists, Tony Messenger of the Post-Dispatch and Ray Hartmann of Riverfront Times, and by the host of St. Louis on the Air, Sarah Fenske.
Javad Khazaeli, who represented citizens who filed civil rights suits after being abused and arrested during the Sept. 17, 2017 “kettling,” said the word for the city’s inaction was “betrayal.”
Not only is there no evidence of altering the city’s position in the prone restraint and no-knock cases, but the city is also trying to protect officers who abused citizens during the much-criticized mass arrest on the evening of Sept. 17, 2017 during protests that followed a judge’s acquittal of former officer Jason Stockley in the killing of Lamar Johnson after a high-speed chase.
Khazaeli says the city is seeking a national precedent expanding the use of the doctrine of qualified immunity in mass arrest situations.
Qualified immunity already is the leading roadblock to police accountability, acting as a get out of court free card for officers who violate citizens’ civil rights.
It’s actually better than a get out of court free card. It’s a never come to court card. The case is thrown out before ever going to trial.
If an officer’s conduct does not violate clearly established law, the officer is immune from lawsuits. The only conduct that does violate “clearly established law” is an action that “every reasonable” police officer would know was illegal the moment it occurred. That may require a prior Supreme Court decision involving almost identical facts.
The city lost on qualified immunity in the kettling case in January before a three-judge panel of the 8th U.S. Circuit Court of Appeals in an opinion written by a judge appointed by former President Trump. Now the city is asking the entire 8th Circuit to meet en banc to overturn the panel decision.
Nick Dunne, a spokesperson for Jones, told the Riverfront Times, that the city “is not and will not make any argument to expand qualified immunity – only to apply existing federal law as it applies to holding individual public servants accountable.” Boyd, the chief of staff who made the promise to reconsider legal positions in police cases, said in an interview Wednesday, that the first thing the city will tell the appeals court if it agrees to hear the case en banc is that the city is not seeking to expand qualified immunity.
But the city’s brief calls the appeals panel’s decision “a dangerous precedent for police attempting to preserve public order in civil disorder situations.”
The brief angles for a new Supreme Court precedent, saying the case “raises questions of critical national importance in the context of policing mass civil disorder.” It seeks a new ruling that would immunize subordinate officers “under the unique circumstances of a mass arrest, during mass civil disorder” – even if their supervisors orders were clearly unreasonable.
The brief does not cite a prior Supreme Court decision exempting all subordinate officers from liability in mass arrest situations. So this would be new law – hence the reason critics say the city is asking the court to expand qualified immunity.
A massive amount of evidence has been assembled showing widespread misconduct in the Sept. 17 kettling arrests. Officers beat citizens, sprayed them in the face with pepper spray and arrested them after trapping a group in a city block near Washington and Tucker Blvd. in downtown St. Louis and refusing to let them leave.
A federal judge made this summary: “Over 100 people were arrested that night. During and after the arrests, officers were observed high-fiving each other, smoking celebratory cigars, taking selfies on their personal phones with arrestees against the arrestees’ wills, and chanting, ‘Whose Streets? Our Streets!’ An anonymous person posted a celebratory photo of police officers on Twitter that night.”
The night of Sept. 17 was the same night that white officers severely beat a Black undercover officer, Luther Hall, whom they mistook for a protester. The beating occurred after the officers had exchanged racist texts expressing their enthusiasm for beating Black demonstrators.
Different critics of the mayor put the blame for failing to alter the city’s legal position on different people. Hartmann, the RFT columnist, says that even though the new city counselor, Sheena Hamilton, is the first Black woman in that post, she has an establishment background with Armstrong Teasdale and Dowd Bennett and has defended major employers against race discrimination suits.
Khazaeli blamed Robert Dierker, the former judge and deputy city counselor, who has supervised the briefs and clearly added signature rhetorical flourishes. Khazaeli told Fenske:
In the early stages of the Gilbert prone restraint case, Dierker wrote that Gilbert’s mother’s argument to the U.S. Supreme Court was “agitprop” designed to “use published reports regarding the death of George Floyd as a cudgel to try to browbeat this Court into reviewing a case that is a straightforward application of basic Fourth Amendment principles. The only things in common between this case and the reports regarding George Floyd are drug use and heart disease.”
That argument didn’t persuade the Supreme Court, which sent the case back to the 8th Circuit.
Undaunted, Dierker’s response for the city was that the Supreme Court had actually “found no fault” with the 8th Circuit’s decision — even though it had sent it back to the appeals court with an opinion expressing disagreement. Dierker said the appeals court shouldn’t spend any more time on arguments before it “put(s) an end to this case.”
Kevin M. Carnie Jr. of the Simon Law Firm, the lawyer for Gilbert’s mother Jody Lombardo, said the city has not expressed an interest in settling the case, which still is pending before the appeals court.
Emanuel Powell, staff attorney at ArchCity Defenders and a lawyer for the Clark family, said police officers in that no-knock case are also seeking qualified immunity. Powell has been awaiting a decision on pretrial motions since Nov. 19 of last year. He says that the litigation delays can end up denying clients justice. In a separate case involving a death in the Workhouse, the mother of the dead inmate died recently after waiting more than two years for a decision.
“It’s a litigation strategy, he said, “that results in exceptionally long times between the filing of cases and any real work to uncover the truth and get accountability for those impacted by police violence.”
William H. Freivogel is publisher of GJR, a professor of media law at Southern Illinois University Carbondale and a member of the Missouri Bar.
Qualified immunity: A get out of court free card for abusive police
Police officers almost always avoid legal liability for abusing citizens because of the doctrine of qualified immunity. The doctrine has its roots in ugly chapters of American history — from enforcement of racial segregation at a lunch counter in Mississippi; to the National Guard killings of students at Kent State; to President Nixon’s firing of a whistleblower; to Attorney General John Ashcroft’s roundup of Middle Eastern men after 9/11.
“Qualified immunity is one of the most legally dubious and heavily criticized doctrines in the history of the Republic,” says Jay Schweikert, a research fellow from the Cato Institute.
Justices from the right and left of the Supreme Court — from Clarence Thomas to Sonia Sotomayor — have strongly criticized the doctrine. But the support of the majority of the court appears solid, experts say.
Qualified immunity is a “get out of court free card” for police. Actually, it’s better than that. It’s a never come to court card. The case is thrown out before ever going to trial.
If an officer’s conduct does not violate clearly established law, the officer is immune from lawsuits. The only conduct that does violate “clearly established law” is an action that “every reasonable” police officer would know was illegal the moment it occurred. That may require a prior Supreme Court decision involving almost identical facts.
This immunity creates a vicious circle: Because so many cases are thrown out before trial and before fact-finding, less new “clearly established law” about police misconduct is created, so fewer officers are held accountable.
The court itself wrote that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”
Wayne C. Beyer, who has been lead counsel in more than 300 police misconduct cases, summarizes the criticisms of qualified immunity coming from groups as disparate as the liberal ACLU and the libertarian Cato Institute:
Qualified immunity is judge-made, without any statutory basis.
The defense deprives citizens of civil rights, which is what the Ku Klux Klan Act of 1871 — now codified as Section 1983 — provided.
Because misconduct goes unpunished, the public’s confidence in law enforcement is eroded.
The threat of liability doesn’t deter police misconduct because officers are usually indemnified by their cities. In other words the city pays the bill, not the officer. Chicago has paid hundreds of millions of dollars for the brutality of their police officers.
The Supreme Court’s explanation for providing this extra legal protection for officers and other public officials is “to protect public officials from undue interference with their duties and from potentially disabling threats of liability.”
An officer on the street who hesitates too long while considering whether or not an action is unconstitutional could end up getting shot.
The Ku Klux Klan Act of 1871
Congress passed the Civil Rights Act of 1871 — the Ku Klux Klan Act — to protect the newly freed Black citizens from the violent attacks of the KKK and other armed bands immediately after the Civil War — attacks that law enforcement officers in the South ignored or abetted.
The law is now codified as Section 1983 and is the legal basis of most civil lawsuits that abused citizens file against police officers. It authorizes suits against any person “who under color of any statute, ordinance, regulation, custom or usage” subjects “any citizens … to the deprivation of any rights, privileges or immunities secured by the Constitution and laws.”
Congressmen were explicit about their purpose in speeches on the floor of Congress.
Rep. David P. Lowe of Kansas said, “While murder is stalking abroad in disguise, while whippings and lynchings and banishment have been visited on unoffending American citizens, the local administrations have been found unwilling or inadequate to apply the proper corrective. Combinations, darker than the night (which) hides them, conspiracies, wicked as the worst felons could devise, have gone unwhipped of justice.”
Rep. John Beatty, R-Ohio, said, “Men were murdered, houses were burned, women were outraged, men were scourged and officers of the law shot down; and the State made no successful effort to bring the guilty to punishment or afford protection or redress to the outraged and innocent. The State, from lack of power or inclination, practically denied the equal protection of the law to these persons.”
Congress’ high intentions were ignored for 90 years. Then, in 1961, the Supreme Court quoted the congressmen’s speeches in Monroe v. Pape which for the first time applied Section 1983 to police officers for brutality.
The case resulted from an abusive and illegal raid by 13 Chicago police officers on a Black family who were manhandled and forced to stand naked while their home was ransacked. Here’s what happened that evening in 1958, according to Monroe’s legal complaint:
At 5:45 a.m. while investigating a murder case, 12 Chicago officers along with Deputy Chief of Detectives Frank Pape broke through two doors into the Monroe family home without bothering to get a search warrant. Pape was a legendary Chicago cop known for battling hoodlums and bragging that the only time he fired his gun was to kill. At gunpoint Pape and the other officers forced the Monroes and their six children out of bed and into the middle of the living room where they stood naked. Pape struck Monroe several times with a flashlight and called him “n—–” and “black boy.” Officers pushed Mrs. Monroe and several of the children while dumping out the contents of drawers and closets and ripping open mattresses. After finding nothing incriminating the officers took Monroe to the police station and held him for 10 hours, refusing to let him call his lawyer. Pape was vocal in Chicago for his complaints that the Supreme Court tied the hands of the police.
Justice William O. Douglas wrote the court’s opinion holding that Section 1983 was intended to protect civilians from law enforcement officers who violate the law while acting under color of law. Separately, the court ruled that Monroe could not sue the city of Chicago.
Frank Pape’s illegal raid on the Monroes’ home revolutionized civil rights lawsuits against police — which went from a dribble to a torrent of lawsuits that now fill volumes of law books.
Qualified Immunity emerges from ‘white Only’ Mississippi coffee shop
On Sept. 13, 1961, a group of 15 ministers, including three Black priests, arrived at the Jackson, Mississippi, Trailways bus terminal planning to travel to Chattanooga. They called themselves “the Prayer Pilgrimage” and were among hundreds of Freedom Riders in Mississippi that summer who challenged segregation in the South.
Around noon they tried to get lunch in a small coffee shop in the bus terminal with a sign that said: “White Waiting Room Only — By Order of the Police Department.” Two police officers stopped them. The priests prayed for the people of Mississippi and the police arrested them when the prayer was over.
A policeman — who found out that the Rev. Robert L. Pierson was the son-in-law of then Gov. Nelson Rockefeller — remarked, “His father-in-law may be a big shot up there, but I don’t guess that makes any difference down here.”
At the station house the officers feverishly ran background checks on each of the ministers to try to link them to Castro’s Cuba. During later court proceedings the state’s lawyers asked the priests on the witness stand to explain why their views on racial justice were the same as the Communist Party’s views.
The ministers were charged with disturbing the peace, even though they were quiet and prayerful, by all accounts.
The police justified the peace disturbance charge on their claim that a crowd of about 20 segregationists had gathered and was threatening the ministers. The ministers said there was no crowd.
Chief Justice Earl Warren wrote in a 1967 opinion that if the police were actually enforcing a peace disturbance law that they had every reason to believe was constitutional, then they were acting in “good faith.”
He wrote that common law — judge made law — gave law officers immunity from lawsuits when they acted in good faith and had probable cause.
“We agree that a police officer is not charged with predicting the future course of constitutional law,” Warren wrote.
This was the birth of qualified immunity — giving Jackson police immunity based on what was apparently a false claim about a segregationist crowd that didn’t exist.
Legal experts say that Warren was simply wrong in saying that the common law in 1871 provided good faith immunity for state officials. That weak legal basis is one reason Justice Thomas opposes qualified immunity. He is an originalist who stresses interpreting legal doctrines consistent with the times in which they are written.
Protecting officials in tumultuous times
Three disparate cases from tumultuous times solidified the doctrine of qualified immunity.
— Kent State killings: The Supreme Court rejected absolute immunity for Gov. James Rhodes and National Guard Commanders in the killing of four students during protests at Kent State in May 1971, after the Nixon invasion of Cambodia. But the court claimed the officials deserved qualified immunity that protected the latitude of their decision-making. The court said: “In common with police officers … officials with a broad range of duties and authority must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office. Like legislators and judges, these officers are entitled to rely on traditional sources for the factual information on which they decide and act. When a condition of civil disorder in fact exists, there is obvious need for prompt action and decisions must be made in reliance on factual information supplied by others.”
A $46 million lawsuit against state officials ended in a $675,000 settlement and statement of regret from Ohio officials. The families of the dead students received $15,000 each.
— Nixon whistleblower: The Supreme Court protected two senior White House aides from paying damages for their involvement in the firing of a famous whistleblower, Ernest Fitzgerald. Fitzgerald angered Richard Nixon by
testifying in 1968 that Lockheed’s C-5A transport program might cost $2 billion more than its original $3 billion price tag. The White House taping system left no doubt about Nixon’s reaction. “I said get rid of that son of a bitch,” he said. The Supreme Court ruled White House aides had qualified immunity from a suit by Fitzgerald, who was laid off from his job. The president could expect loyalty, the court said.
The court worried about “social costs (that) include the expenses of litigation, the diversion of official energy from pressing public issues and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible (public officials) in the unflinching discharge of their duties.”
— Ashcroft roundup of Middle Eastern men: Attorney General John Ashcroft used the material witness law to roundup Middle Eastern men after 9/11, even though there was no evidence that they were involved in a crime nor any intention to call them as witnesses.
One of those detained was Abdullah al-Kidd. Al-Kidd was born in Wichita, Kansas, and was a football star at the University of Idaho where he converted to Islam. The FBI was suspicious of an acquaintance of his who had worked with an Islamic charity.
Al-Kidd was arrested at Dulles Airport and detained for 16 days, during which time he was repeatedly strip-searched and transported between jails in handcuffs and leg irons, yet he was never charged with a crime. Nor did agents everquestion him as a material witness.
Ashcroft admitted shortly after the Sept. 11, 2001, terrorist attacks that using the “material witness” law was a tactic to take “suspected terrorists off the street.” But Justice Antonin Scalia said the court generally does not allow lower courts to inquire into the “subjective” purpose for seeking an arrest warrant. Lacking such a precedent, there was no established law and Ashcroft was entitled to immunity.
Scalia wrote: “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects all but the plainly incompetent or those who knowingly violate the law. Ashcroft deserves neither label.”
Supporters of qualified immunity say officials need legal protections to make tough decisions in perilous times. Critics ask: Should officials who made bad decisions be protected from the consequences?
Officers almost always win in the supreme court
For 16 years, from 2006 to 2020 no suspect or prisoner had won a qualified immunity case in the Supreme Court. Here’s what it took for Trent Taylor to win against the state of Texas last year:
After a suicide attempt, Taylor was transferred to the Montford Psychiatric Facility Unit in Lubbbock Texas. Prison officials stripped Taylor naked and placed him in a cell where almost every surface — including the floor, ceiling, windows and walls — was covered in “massive amounts” of human feces belonging to previous occupants. Taylor was unable to eat because he feared that any food in the cell would become contaminated, and feces “packed inside the water faucet” prevented him from drinking water for days. The prison officials laughed at Taylor’s predicament and said he was, “Going to have a long weekend.”
Four days later, they moved Taylor to a different seclusion cell named “the cold room” by other inmates because it was so frigid. The cell had no toilet, water fountain or furniture, but had a drain on the floor — which was clogged — leaving a standing pool of raw sewage in the cell. There was no bed. Taylor had to sleep on the floor, naked and soaked in sewage, with only a “suicide blanket.” Taylor was locked in this cell for three days and never allowed to use a restroom. He attempted to avoid urinating on himself and developed a distended bladder requiring catheterization.
The Supreme Court said, “No reasonable correctional officer could have concluded that, under extreme circumstances of this case, it was constitutionally permissible to house Tayor in such deplorably unsanitary conditions for such an extended period of time.”
But this past fall the Supreme Court dispelled hope that the Taylor decision meant it was reconsidering qualified immunity. It ruled in favor of officers in two cases, emphasizing that “clearly established law” requires prior cases with very similar facts.
In one of the cases a woman called police to her house because her husband was drunk. The husband went to the garage, picked up a hammer and approached police refusing to put it down. The police shot and killed him. The 10th U.S. Circuit Court of Appeals denied the officers qualified immunity citing its precedents that an officer can’t claim immunity if his own recklessness leads to a shooting death. But the Supreme Court said that the case was not similar enough.
An example of an excessive force case where an officer was able to avoid accountability using qualified immunity is Dukes v. Deaton.
During a home search for marijuana, an officer threw a flashbang explosive device into Ms. Dukes’ bedroom which resulted in her being badly burned. While the use of the flashbang device constituted excessive force under the Fourth Amendment, and the officer did not inspect the room beforehand like he was supposed to, he was found not responsible under qualified immunity. Not every reasonable police officer would have known throwing the flashbang would be considered excessive force, the court said.
A 2009 decision by the Supreme Court made qualified immunity an even more potent defense for abusive officers. The court decided in Pearson v. Callahan that courts could skip past the initial question of whether or not a police action violated the Constitution. It allowed the courts to jump instead to whether or not the law violation, if proved, was clearly established law. If not, then the case was tossed out before the legality of the officer’s actions was determined.
The Catch-22 is that the change resulted in fewer court determinations of what was illegal and therefore less clearly established law and therefore more cases being tossed out on qualified immunity.
A Reuters investigation in 2020 found that an increasing number of cases are being thrown out without the court considering the lawfulness of the police use of excessive force.
Reuters noted that in 2009 the 11th U.S. Circuit Court of Appeals threw out a case in which a man who was found disoriented along the side of the road died after police hogtied him. The court did not evaluate the constitutionality of this frowned on police tactic but instead immediately granted qualified immunity.
Four years later, police in Phenix City, Alabama, found Khari Illidge wandering naked along a road, apparently after using drugs. An officer stunned him 14 times while he was handcuffing him. He fully hogtied him by attaching the handcuffs to leg irons holding his ankles. A 385 pound officer lay on Illidge until he went limp. He died of cardiac arrest.
When the same Court of Appeals took up the case, there was no clearly established law because it hadn’t considered the constitutionality of hogtying in the first case.
Schweikert from Cato sums things up by explaining that even if an officer is convicted of murder — as was Derek Chauvin — the officer can still avoid liability under qualified immunity. “There’s a ton of police misconduct that does fail to meet constitutional standards, but which nevertheless gets excused under the doctrine of qualified immunity.”
Police misconduct biggest single cause of 2,900 wrongful convictions
Police misconduct is a leading cause of wrongful convictions in the United States. Just over 2,900 people have been exonerated in the U.S. since 1989 according to data from the National Registry of Exonerations. That amounts to 25,900 lost years for those stuck behind bars.
Over 37% of those cases involve police misconduct, and over half of all exonerations involve misconduct by prosecutors or police.
That means police and prosecutor misconduct is responsible for over a thousand documented wrongful convictions unearthed in the United States since 1989.
The police misconduct includes shoddy police work, coerced confessions, use of unreliable jailhouse informants, misleading lineups and photo arrays and a failure to turn over exculpatory evidence as required by law.
People of color represent over 64% of those wrongfully convicted nationally, and disproportionately experience police misconduct. 72% of all instances of police misconduct that lead to wrongful conviction in the U.S. imprison people of color, mostly Blacks.
“There’s a problem with some police all over the country,” said Ken Otterbourg, researcher at the National Registry of Exonerations. “The two most common types of police misconduct are probably misconduct during interrogations and also failing to disclose exculpatory evidence.” He based that assessment on the Government Misconduct and Convicting the Innocent report on the National Registry of Exonerations website.
Police and prosecutor misconduct high in Midwest
Police misconduct accounts for an even higher percentage of wrongful convictions in the Midwest than the rest of the country.
In Illinois 75% of all wrongful convictions since 1989 involved police misconduct. In Missouri, Kansas, and Nebraska, the statewide rate of police misconduct among wrongful convictions is also high — Missouri (49%), Kansas (57.1%), Nebraska (66.7%).
In Missouri there were 15 total exonerations for murder where the cause of the wrongful conviction was official misconduct, according to the National Registry. That was half of the 31 murder exonerations. All told, there have been 51 exonerations on all charges in Missouri.
Two wrongful convictions in Missouri have grabbed headlines in recent months – Kevin Strickland from Kansas City and Lamar Johnson from St. Louis. Strickland finally was released just before Thanksgiving after 43 years in prison, the longest period of wrongful imprisonment in Missouri history.
Lamar Johnson is not so lucky; he’s still incarcerated.
Attorney General Eric Schmitt has tried to keep both men in prison even though the prosecutors’ offices that had convicted them had reviewed the evidence and concluded they were not guilty.
Kevin Strickland: police manipulate eyewitness
Strickland, wrongfully convicted in 1979, was released on November 23, 2021. From the beginning no physical evidence linked Strickland to the crime scene of a triple murder. Moreover a convicted gunman said Strickland was innocent and the only eyewitness recanted her identification.
Strickland, who is Black, was initially tried by a jury that included 11 whites and 1 Black. All 11 white jurors voted to convict, but the Black juror refused. The prosecutor reportedly told Strickland’s attorney he had been “careless” allowing a Black on the jury and wouldn’t make that “mistake” again. He didn’t. The prosecutor used peremptory challenges to strike the last four Blacks from the jury pool in the second trial. The all-white jury took one hour to return a guilty verdict.
The conviction resulted from a mistaken eyewitness identification by the key witness, Cynthia Douglas, who was shot and left for dead at the murder scene.
The night of the murder, Douglas said she could only identify two men, both of whom were convicted of the murders. Strickland wasn’t one of them.
Douglas picked out Stickland from a lineup the next day. Douglas later recanted her testimony, explaining that police manipulated her into selecting Strickland from a lineup.
Douglas’s friends and family said at a recent hearing that not long after Strickland was convicted, Douglas realized she had the wrong guy. For years she tried to get people to listen without success.
In 2009, she wrote an email to the Midwest Innocence Project saying, “I am seeking info on how to help someone that was wrongfully accused, this incident happened back in 1978. I was the only eyewitness and things were not clear back then, but now I know more and would like to help this person if I can.”
Douglas died in 2015, but eventually Jackson County’s progressive prosecutor, Jean Peters Baker became convinced of Strickland’s innocence.
At a court hearing this fall, Douglas’ mother, Senoria Douglas, recalled her daughter saying, “Mother, I picked the wrong guy!”
Attorney General Schmitt’s office claimed in court that Douglas’ email might not have been authentic and that Strickland had spent 40 years “dodging” accountability for the murders. Strickland countered that he was not going to take accountability for murders he had not committed, even though the men who had pled guilty already had been released from prison.
On November 23, presiding Judge James Welsh ruled that Douglas’s recantation was credible and the conviction could not stand. Strickland was released under a new law that made it possible for prosecutors to seek the release of prisoners their office had wrongfully convicted.
Still, Strickland won’t receive any money from the state since Missouri only compensates those exonerated by DNA evidence.
“Kevin’s case is just one example of how much the system values finality over fairness, and how, even when we change the system, the system fights back,” tweeted Tricia Rojo Bushnell, executive director of the Midwest Innocence Project. “But as hard as the fight is, it is worth it.”
Lamar Johnson: police and prosecutor paid $4,000 to eyewitness
St. Louis Circuit Attorney Kim Gardner has tried since 2019 to get Lamar Johnson a new trial after 26 years behind bars for the murder of Marcus Boyd. Two gunmen, wearing “Ninja” ski masks that showed only their eyes, shot Boyd dead on his front porch in 1994. The shooters had accused Boyd of keeping more than his share of profits from drug deals. Greg Elking was the one witness to the shooting.
Here is the police and prosecutor misconduct detailed in Gardner’s filings and briefs filed by the Midwest Innocence Project:
Elking at first said he could not identify either of the killers because of the masks. Later, the lead detective on the case, Joseph Nickerson, told Elkin that police knew Johnson was the killer and that the state could help Elking with moving expenses if he cooperated with the prosecution. Elking initially failed to identify Johnson in a series of lineups. Elking later said the failed lineup put Det. Nickerson in a “foul” mood and Elking felt like he had “let everyone down.” Elking and Nickerson got into an elevator and Elking asked Nickerson to tell him the lineup position numbers of the men that Nickerson believed killed Boyd. Nickerson then told Elking the men were in position #3 and position #4. That implicated Johnson.
Det. Nickerson and Assistant Circuit Attorney Dwight Warren arranged to pay more than $4,000 to Elking but failed to disclose the payments to the defense. In a letter to the Rev. Larry Rice several years after the conviction, Elking wrote, “The detectives and me had a meeting with the Prosecutor Dwight Warren and convinced me, that they could help me financially and move me & my family out of our apartment & relocated use (sic) in the County out of harms (sic) way. They also convinced me who they said they knew murdered Marcus Boyd.”
Nickerson authored four different false police reports based on the statements of four different witnesses. Years later, all four witnesses reviewed the reports and swore under oath that they never said what Nickerson had attributed to them.
The two actual killers have filed affidavits saying Johnson was not involved in the murder.
A jailhouse informant, William Mock, was essential to the conviction, but he lied in court about his criminal record, his motivations and whether he had ever before testified as a jailhouse informant. Prosecutors knew he was lying.
Mock testified that he had heard Johnson incriminate himself in a nearby cell in City Jail after he was arrested by police. But Mock left out important parts of his 60-page arrest record, left out the help he expected from prosecutor Warren, and failed to disclose he had given testimony as a jailhouse informant in a Kansas City murder case only two years earlier.
Mock had written to prosecutor Warren in June 1994, “I don’t believe that anyone in the legal system will disagree with the value of my testimony in this trial as opposed to the conviction that I am now serving. I am willing to testify as long as I don’t have to return to the Department of Corrections once I testify. I can’t I won’t live in protective custody or any institution after I testify. I am serving a five year sentence for CCW, which I have been serving since 1993. I feel my testimony is worth a pardon by Mr. Carnahan or a reduction in my sentence…I will uphold my end of the situation as I am certain you will fulfill your obligations to me.”
Despite evidence of innocence, Johnson remains behind bars. The Missouri Supreme Court ruled that state law did not permit a prosecutor to move for a new trial for a person their office had convicted. The Missouri Legislature has since passed a law permitting the prosecutor to take those steps — the law that helped Strickland get out of prison — but the law has not been applied to Johnson.
“There is no doubt that Lamar Johnson is innocent,” Midwest’s Bushnell tweeted. “And no one is arguing he is not. But still, he languishes.”
Black clergy and St. Louis’ Black police union called last summer for Nickerson to be fired from his current police job in St. Louis County because of his role in the Johnson case.
Nickerson calls Gardner’s allegation about him “baloney” and says he still thinks Johnson is guilty. Prosecutor Warren also maintains Johnson is guilty and says the $4,000 in payments to the eyewitness were for witness
In Chicago exonerations come in the dozens
In Chicago, unjust convictions are not just isolated cases but are uncovered in the dozens from the work of corrupt police squads. Sgt. Ronald Watts’ tactical unit at Ida B. Wells apartment has reached 115 exonerations and counting. CPD Detective Reynaldo Guevara framed about 50 mostly young Latino men on the city’s northwest side. And Burge’s homicide squad tortured hundreds of mostly Black suspects from the 1970s-90s before he was stopped.
Illinois has had 363 total exonerations since 1989, with 271 of them having grown out of police misconduct. 177 of the exonerations were murder cases and 133 of those grew out of police misconduct.
Illinois courts have recently thrown out 115 unjust convictions based on the fabricated police work of a tactical team headed by disgraced Sgt. Ronald Watts. It is one of the biggest police scandals in Chicago history.
Mayor Lori Lightfoot has called Watts “the Burge of our time,” a reference to Chicago Commander Jon Burge whose homicide squad physically tortured Black men into making false confessions.
The Exoneration Project calls the Watts scandal “nothing short of a decade-long criminal conspiracy of extorting drug dealers, stealing narcotics, planting evidence, and falsifying charges.”
Watts and his crew terrorized the Ida B. Wells housing project for the decade leading up to 2012, but the ramifications of that streak of police misconduct are still playing out in Chicago courtrooms. Another 83 cases will go before a judge for possible exoneration in January, 2022.
Ben Baker spent 9.5 years in prison on drug charges for a crime he did not commit. While exculpatory FBI documents were available during Baker’s trial, they were hidden from his lawyers, causing him to be wrongfully convicted in 2006. He was exonerated in 2016.
Joshua Tepfer, Baker’s attorney at the Exoneration Project, tweeted, “There is no one more corrupt in Chicago history than Ronald Watts.” “Ben is just one of…I don’t think it would be exaggeration to say hundreds of people that are victims of this corrupt crew.”
“It was Watts law, not Illinois law,” Baker said of Watts’ crew in an interview with the Exoneration Project. “Either you pay, or you went away. That was the rule.”
In 2012, Watts and another officer were indicted by federal authorities for taking a bribe from an informant and later pleaded guilty. Documents have since revealed that Watts and members of his team were running a “protection racket” for more than a decade, planting evidence and fabricating charges against Black Southside housing project residents while facilitating their own drug and gun trade.
The Illinois Appellate Court said Watts and his team were “corrupt police officers,” perjurers, and “criminals.” It criticized the city’s police disciplinary bodies for failing to do anything “to slow down the criminal” police officers during a decade of corruption.
Now, three years after the mass exonerations started, the City’s latest police oversight board—the Civilian Office of Police Accountability (COPA)— has failed to act and has retained a dozen officers tied to the dismissed case as active members of the police force.
Tepfer said that in Baker’s case, “The judge accepted the testimony of four sworn police officers over a black man.” To this day, all three officers who backed up Watts in Baker’s trial remain on the force.
50 more people framed
CPD Detective Reynaldo Guevara is accused of framing 50 innocent people for murder, mostly young Latino men from the city’s Northwest Side. Twenty have already been exonerated and the investigation of 30 other cases continues. Guevara pressured eyewitnesses to crimes to make false identifications and beat false confessions from suspects, investigations have shown.
Jose Montanez is one of Guervara’s victims. He spent 23 years incarcerated for a crime he did not commit. He and his co-defendant Armando Serrano were wrongfully convicted for murder and each sentenced to 55 years in prison.
Neither man confessed, and there is no physical evidence tying them to the crime. The sole piece of evidence against the two was the
false testimony from a jailhouse informant coerced by Guevara.
The jailhouse informant later recanted, stating “My false testimony was given as a result of threats, intimidation, and physical abuse by Detective Reynaldo Guevara.” Moreover, prior to their exoneration, a 2015 report on a review conducted by the Cook County State’s Attorney’s Office found that Montanez and Serrano were “more likely than not actually innocent.”
“This was no mistake; Detective Guevara framed these innocent men,” Russell Ainsworth, Montanez’ attorney at the Exoneration Project, said in a statement. “Sadly, dozens more innocent Guevara victims remain incarcerated for crimes they didn’t commit. We will not rest until every single one of them is exonerated,” Ainsworth said.
Last year the Cook County State’s Attorney’s Office announced it was conducting a “comprehensive review” of all convictions connected to Guevara.
Burge’s midnight crew
John Burge, the former Commander of the “Midnight Crew” tortured over a hundred Blacks in the 1970s and 1980s, forcing many to give false confessions through beatings, electrical shocks, and more.
The Crew was known to point guns in the mouths of victims, smother them with plastic typewriter covers, and burn them with cigarette lighters. 118 Black victims have been documented, with many more still unidentified. Only in 1993, ten years after his crew’s rampant misconduct was first brought to light, was Burge fired from the CPD. Federal prosecutors later sent him to prison.
James Kluppelberg spent 24 years in prison for an alleged arson and 6-person homicide on the South Side of Chicago that he did not commit. He was tortured in 1984 by detectives working under Burge.
According to the Chicago Police Torture Archive, a self-described human rights documentation of Burge’s violence against over one hundred Black people from the 1970s – 1990s, Kluppelberg was tortured into giving a false confession and beaten to the point that his kidney was lacerated and he urinated blood.
“They laid me face down on the floor and they started punching me in my back and using the heel of their feet in the back kidney area,” Kluppelberg said. “They knew what they were doing. And they did it anyway for their own personal gain,” Kluppelberg said of the officers who tortured him in a video produced by the Invisible Institute. “They used my case to build their careers,” he said.
While Kluppelberg was convicted of arson and murder, CPD ultimately concluded that the fire was an accident. Still, Kluppelberg spent 24 years behind bars.
Biggest problem in the criminal justice system
Bushnell, director at the Midwest Innocence Project, the organization that represents wrongfully convicted prisoners in Missouri, said in an interview that she sees police misconduct as the biggest problem in the criminal legal system, referring to it as a kind of “open secret.”
Sean O’Brien, who has represented many men who have been wrongfully convicted in Missouri, said in an interview that one cause of unjust convictions in Missouri is that the “rural public defender system has been exceedingly weak in terms of quality of representation.” Missouri has an underfunded legal representation system: it ranks 49th in the country, according to National Legal Aid and Defender Association statistics.
O’Brien also said more independence is needed to look into prison homicides and prison violence to avoid corruption: “Prison guards are not well-trained or well-compensated. They are vulnerable to corruption so investigations need to be done by outside agencies and individual officers from outside agencies should be screened for independence from connections to the corrections complex.”
The 15 exonerations in murder cases that flow from police misconduct include coerced confessions, unreliable use of lineups and photo arrays, failure to disclose exculpatory evidence, reliance on self-interested confidential sources and failure to follow up on alibi evidence.
Elizabeth Tharakan is a PhD student at Southern Illinois University Carbondale, where she studies Mass Communication and Media Arts. She is also an attorney licensed in Missouri, Colorado, New York and the District of Columbia.
Wandering cops shuffle between departments, abuse citizens
Timothy Loehmann wanted to be a police officer like his dad. The Independence, Ohio, police department hired him but the chief found that Loehmann “could not cope” with firearms and showed a “dangerous lack of composure.” Independence allowed Loehmann to quietly leave the department. But nearby Cleveland hired Loehmann without checking his background. So it was Loehmann who responded to 12-year-old Tamir Rice playing with a toy gun in a park and gunned the boy down.
The Cleveland department’s failure to check Loehmann’s background is an example of one of the biggest roadblocks to police accountability — “wandering cops” who lose their jobs in one place only to be rehired and to kill or abuse citizens in another.
Jason VanDyke had been investigated for 25 citizen complaints in the 14 years before murdering Laquan McDonald on a Chicago street in 2014.
Daniel Pantaleo had seven citizens’ complaints in the five years before Eric Garner died from his chokehold in 2014.
Michael Robbins, who shot Kenneth Ross Jr. in the back as he fled through a park in Gardena, California, had shot three people under questionable circumstances in his previous job in Orange County.
The Ross killing had consequences. State Sen. Steven Bradford, D-Calif., who grew up near the park where Robbins chased Ross, called Robbins’ rehiring in Gardena an example of the “wash, rinse, repeat” cycle of problematic officers who repeat their abusive policing in new places with tragic results.
It took an intense, two year legislative fight for Bradford to overcome opposition from the state’s powerful police unions and pass the Kenneth Ross Jr. Police Decertification Act of 2021, which seeks to stop abusive officers from wandering from department to department, only to abuse again.
In September, California Gov. Gavin Newsom signed a new law, which resurrects license decertification after a three decade hiatus. That leaves only three states — Hawaii, New Jersey and Rhode Island — without decertification mechanisms that can stem the flow of wandering cops.
Nationwide decertification of abusive officers would be an important step toward police accountability, experts say, but the decertification process still doesn’t work well even with 47 states having passed laws. The reason is that records of police officers losing their licenses are mostly kept secret and are seldom reviewed before hiring.
National decertification index
There is a straightforward solution to wandering officers, experts say:
A national database open to the public with the names of all officers decertified for misconduct.
A requirement that all law enforcement agencies check that database before hiring.
But that solution has proved elusive. Most states keep the names of disciplined officers secret, and the vast majority of departments do not fully investigate the background of an officer they are hiring. Police chiefs, who have found it difficult to rid their departments of problem officers, generally support stronger laws. Police unions oppose them, arguing that past allegations — many of them denied — shouldn’t follow officers throughout their careers.
The International Association of Directors of Law Enforcement Standards and Training, an Idaho-based nonprofit, has created a national response to the problem of wandering cops: the National Decertification Index (NDI). Forty-seven states provide records of misconduct on about 31,000 officers so that states can check the NDI database to see if an officer applying for a job has had previous problems.
But experts say the NDI database is badly flawed. For one thing, most departments don’t check it before hiring. For another, the names in the database are not public. For a third, a few big states, such as New Jersey, are not in the system.
The NDI database has another flaw. It omits police misconduct that is not serious enough for an officer to be decertified. In many states, only conviction of a felony leads to decertification. So serious misbehavior that falls short of a felony is not included in the database.
The nation takes a much more rigorous approach to its regulation of health care practitioners, who also deal in life and death but don’t carry guns, says Roger Goldman, professor emeritus at Saint Louis University School of Law and expert on police licensing. Goldman has waged a four decade crusade to expand decertification nationwide.
The President’s Task Force on 21st Century Policing, commissioned by President Barack Obama after a series of police killings in 2014, called for the federal government via the Department of Justice to follow Goldman’s recommendation to partner with and beef up the NDI database — making it truly national. Police unions, however, opposed this recommendation as unfair to officers who face false allegations. The reform hasn’t happened.
“It’s a real mess for chiefs of police departments,” says David A. Harris, a law professor at the University of Pittsburgh and police expert. “You go to any chiefs of police conference and every table has the same discussion: ‘I fired this guy and we got him back because it was overturned in union arbitration.’”
The NDI database publishes a public brochure, illustrating the potential of an effective database. It features the case of Sean Sullivan, who was caught in 2004 kissing a 10-year-old girl on the mouth in Coquille, Oregon. He was convicted on two counts of harassment and ordered to surrender his Oregon police officer certification and never work as a police officer again. The state of Oregon entered his name into the NDI database.
But that didn’t stop Sullivan. First he tried to get a job in Klawock, Alaska, claiming he had never been convicted of a crime. Then he not only got a job as a police officer but as the police chief of Cedar Vale, Kansas. There he was investigated for a relationship with a 13 or 14-year-old girl. She refused to cooperate with the investigation, however, and Sullivan was eventually convicted of the lesser charges of burglary and criminal conspiracy. When the NDI database record from Oregon came to light, Sullivan was fired from police work. He later ended up in prison in Washington state for drug crimes.
‘Second chance PD’ — McFARLAND, California
Sixty-two years ago, California led the nation in decertification. But strong police union opposition defanged the law in the 1990s and dismantled it in 2003.
The consequences of lacking decertification for decades became clear when California passed Senate Bill 1421 in 2018, requiring the release of records of officers convicted of habitual sexual abuse and use-of-force violations. A media consortium found that 80 officers in the state had been convicted of crimes. All told, 630 convicted criminals had been officers in the decade from 2008-2018.
One department in California, in McFarland, epitomized the problem. It earned the title “Second Chance PD.”
In the two years after the department was created in 2009, it hired 13 officers who had been forced out of previous positions across the country. Chief David Oberhoffer, a veteran of the department in San Francisco, hired most of them: including Ron Navarreta, who had been fired from the Inglewood Police Department because of a child pornography investigation. Police records showed he admitted to viewing pictures of naked children, but his computer could not be located and no charges had been filed.
Chief Oberhoffer said he knew about the investigation when he hired Navarreta, but wasn’t convinced by the evidence and thought Inglewood might have had a grudge against him.
Other officers hired in McFarland included an officer accused of having sex with a teen Police Explorer Scout; an officer accused of threatening to put women in jail if they didn’t have sex with him; an officer involved in a Los Angeles Police Department burglary ring; an officer who filed a bogus insurance claim for a car he dumped in Mexico; and an officer convicted of pulling a gun on his stepdaughter’s friends.
After Oberhoffer, the city promoted Gregory Herrington whose record included a DUI conviction in Georgia and being fired for dishonesty in Banning, a Riverside County department. Herrington, a former Marine, came in vowing to improve the department’s reputation, which he described as being “in the toilet bowl.” But he ended up hiring three of his buddies from Banning who were also involved in dishonesty.
Leonard Purvis — the police chief who cleaned out Banning — couldn’t believe eight of his dishonest officers ended up in McFarland, two as chiefs. He wrote to the toothless state Peace Officer Standards and Training office. It replied: “The decision whether to appoint an individual as a peace officer rests with the agency head. Differences of opinion can exist regarding whether or not an individual should be appointed as a peace officer.”
The Muni-Shuffle — St. Louis to St. Ann, Missouri
In St. Louis, wandering police are so common that there is a name for this phenomenon: “the Muni-Shuffle.”
St. Ann, a small suburb of about 14,000 near the St. Louis airport, is the refuge of many officers who have shuffled their way out of bigger departments in nearby St. Louis and St. Louis County.
One was Eddie Boyd III, who as a St. Louis officer pistol-whipped a 12-year-old girl in the face in 2006. He said it was an accident. In 2007, he struck another child in the face with his gun and handcuffs before falsifying a police report, according to Missouri state decertification records. Boyd faced a state decertification order, but a jury ruled in his favor in a lawsuit involving one of the pistol-whipping incidents, and he was allowed to keep his badge.
The St. Ann department hired Boyd. From there Boyd shuffled his way to nearby Ferguson in 2012. He was on the force there when Michael Brown was killed by another Ferguson policeman in 2014. A Ferguson woman sued Boyd, saying he arrested her for asking for his name at the scene of a traffic accident. The Justice Department also cited Boyd in its finding of a pattern of unconstitutional policing by the Ferguson department.
Boyd issued nine citations in Ferguson to Fred Watson, an employee of the National Geospatial-Intelligence Agency. Watson had just finished playing a pick-up game of basketball and got into his car when Boyd arrived to cite him for not wearing a seat belt and a host of other unfounded violations. Watson said Boyd drew his gun and pointed it at Watson’s head for using his cell phone. Ferguson police responded that they only hire officers after they “undergo extensive investigation.”
Another St. Louis police officer who found refuge in St. Ann was Christopher Tanner, who shot Black former St. Louis Officer Milton Green at Green’s home in 2017. A police chase sped into Green’s neighborhood while he was off duty working on his car in his driveway. A white officer arrived and ordered Green to the ground, forcing him to drop his service revolver. No sooner had that officer allowed Green to get up and retrieve his gun than Tanner arrived, told him to drop his pistol and immediately shot him. Green sued the city in 2019.
Tanner was soon joined in St. Ann by Jonathan Foote, who resigned from the St. Louis Police Department after a traffic stop led to a crash in which a bystander was killed. Then there was Christopher Childers, fired from the St. Louis department after assaulting another officer by firing a stun gun at her in her patrol car. He had also initiated a chase that resulted in the death of a bystander. St. Ann fired Childers recently for overdosing on opiods.
St. Ann’s elected Police Chief Aaron Jimenez also hired Officer Ellis Brown III after he was forced out of the St. Louis Police Department and his state certification was suspended. Brown had lied about a 2016 incident in which he had tailed a car, which accelerated, crashed and started burning. Instead of calling for help, Brown fled the scene and then claimed in a report that he hadn’t been there. Brown was also one of two officers who shot Kajieme Powell to death in St. Louis after responding to a shoplifting complaint in 2014. Brown said he acted in self-defense because Powell had a knife, but the killing led to street protests. Finally, 19 of Brown’s questionable search warrants were thrown out because he used the same language in each.
After being hired by St. Ann, Brown was convicted in June 2021 in federal court for violating the civil rights of a suspect by beating him after a chase. Bank video captured Brown repeatedly kicking the suspect, who lay prone after attempting to flee on foot at the end of a 20-minute vehicle pursuit. A federal judge sentenced Brown to six years in prison this past November.
In 2017, the St. Ann department hired Mark Jakob, one of two St. Louis County police officers fired for lying about a high-speed chase that resulted in two deaths. The officers initially claimed not to have been involved in the chase, but an activist group released video showing they were.
Chief Jimenez’s department favors aggressive tactics such as police chases. Despite its small size, St. Ann police conduct as many high-speed chases as the nearby St. Louis and St. Louis County departments, which are 20 times bigger. Jimenez has said publicly that he checks officers’ backgrounds, but that he hired officers like Tanner and Brown because they hadn’t been fired.
There is one chase a week in St. Ann and one crash every two weeks, sometimes with deadly consequences, the Post-Dispatch reported.
Finally, St. Ann hired Iraqi war veteran Joshua Daniel Becherer, a member of the St. Louis Police Department SWAT team that in 2017 killed Isaiah Hammett in a controversial no-knock raid. Later that year, Becherer resigned from the St. Louis department after his arrest for domestic assault: for pointing a loaded rifle at a woman’s face and threatening to kill her.
Becherer is a good example of how an officer’s past misdeeds are kept secret from the public.
None of this information about Becherer was released by the Peace Officer Standards and Training office in Missouri. In fact, the only things about police officers that are open to the public under Missouri’s Sunshine law are the names of officers, license status and the law enforcement agencies where officers are employed.
Wandering cops are widespread
How prevalent are wandering officers?
A recent study in the Yale Law Journal last year by Ben Grunwald, an assistant professor at Duke University School of Law, and John Rappaport, assistant professor at the University of Chicago Law School, provided the first systematic answer: Wandering officers are prevalent and often run into disciplinary problems after they are rehired.
The professors studied data in Florida, a state that took important steps to impose accountability on police officers after riots in Liberty City in 1980 left 18 people dead. Those riots followed the acquittal of officers prosecuted for the death of Arthur McDuffiie, a 33-year-old Black salesman beaten by police after they chased him for traffic violations while he tried to get away on his black and orange Kawasaki motorcycle. The four officers tried had 47 previous citizen complaints against them.
Partly as a result, Florida enacted a strong police decertification law in 1980 in order to prevent officers with discipline problems from moving from department to department.
Despite that law, many officers fired in one department are rehired and run afoul of police discipline again, the Yale study found. It concluded:
“In any given year over the last three decades, an average of roughly 1,100 full-time law enforcement officers in Florida walk the streets having been fired in the past — and almost 800 having been fired for misconduct, not counting the many who were fired and reinstated in arbitration. These officers … are subsequently fired and subjected to ‘moral character’ complaints at elevated rates relative to both officers hired as rookies and veterans with clean professional histories.”
Decertification not always the answer
A recent police decertification dispute in Texas is a reminder that decertification is no panacea. Officers in that state who engage in wrongdoing have sometimes used their police licenses to bargain themselves out of prison time. They surrender their license for reduced charges or probation.
An investigation by KXAN-TV found that in 245 cases from 2015 to 2018, officers had “used their licenses to leverage a lesser sentence in a plea bargain. More than 30 officers surrendered their licenses in lieu of prosecution or to halt an investigation.”
One such officer was Larry Linley, a DA investigator in Fort Bend County. He was originally charged with four counts of sexual assault for repeated instances of improperly touching an 11-year-old and taking pornographic videos. In 2017, he pleaded guilty to a reduced charge of one count of injury to a child in return for surrendering his license. He received no additional jail time.
Legislation designed to give the Texas decertification board more power was introduced, but the strongest proposals were bottled up. The Combined Law Enforcement Associations of Texas (CLEAT) testified against the bills, stating, “All of the legislation we see this session is a direct attack on working cops and is punitive in nature.”
Editor’s Note: This story first published in the print edition on Dec. 21. 2021.
Emily Gross, a Pulitzer intern and graduate of Washington University in St. Louis, contributed to the Missouri reporting, and Meredith Howard, a senior at Baylor, contributed to the reporting on Texas. William H. Freivogel is the publisher of GJR. Paul Wagman isformer Post-Dispatch reporter and FleishmanHillard executive who is now an independent writer and communications consultant.
Two St. Louis police killings similar to George Floyd and Breonna Taylor deaths
ST. LOUIS — Five years before George Floyd died of “asphyxia-restraint” on a Minneapolis street, 27-year-old Nicholas Gilbert died in a St. Louis police holdover cell with six officers on top of him. He was handcuffed with his legs shackled while gasping, “It hurts. Stop.”
Three years before Breonna Taylor was killed by police in a flawed “no-knock” raid in Louisville, Kentucky, a St. Louis SWAT team killed Don Ray Clark, a 63-year-old Army veteran known as “Pops,” in his Dutchtown neighborhood. The SWAT team of 17 officers, acting on a no-knock warrant based on sketchy evidence, broke down the door and tossed a flashbang into the front room where Clark was sleeping. Police opened fire and Clark, who never had been charged with a crime, was shot nine times by Officer Nicholas Manasco.
Floyd’s and Taylor’s deaths were huge news events that brought worldwide attention to police killings. But Gilbert’s and Clark’s deaths only got passing attention. There were no national news stories or protests in the streets. But their deaths highlight both the banality and lack of accountability for such police actions.
Death from “asphyxia-restraint” and no-knock raids are the leading causes of police killings both in St. Louis and nationwide. Across the nation, 134 people have died from “asphyxia-restraint” in the past 10 years with 94 people killed during no-knock raids from 2010 to 2016. The Minneapolis police killing of Amir Locke on Feb. 2, 2022 during a no-knock raid targeting another man has reinvigorated the controversy about police reliance on the deadly tactic.
The families of St. Louisans Gilbert and Clark have brought attention to the killings of their loved ones by suing St. Louis and its police officers for violating their civil rights.
The lawsuit by Jody Lombardo, Gilbert’s mother, has taken on national significance because the U.S. Supreme Court took notice in a surprising June opinion that could eventually make it harder for police nationwide to dodge accountability.
Until now, there has been a disconnect between the city’s legal position on prone restraint and the public statements of its mayors. The City of St. Louis has continued to argue in court that St. Louis police did nothing wrong, even as Mayor Tishaura Jones and her predecessor Lyda Krewson criticized Floyd’s murder and advocated for police reform.
The Gilbert family’s lawyer, Kevin M. Carnie Jr., said in an interview last month that he had been astonished by the disconnect between the mayors’ statements and the city’s strident position in court. “I’ve been shocked that the city has continued to pursue the case. They say they are shocked by George Floyd but they are not upset about what happened in their own backyard.”
But that is changing. When Mayor Jones’ chief of staff, Jared Boyd, was asked about this disconnect in an interview on Sept. 7, he said the mayor was taking steps to reconsider the city’s legal position. The mayor appointed a new city counselor to review the city’s legal position in police abuse cases, with less consideration for the financial loss such cases might mean for the city. The new city counselor is Sheena Hamilton, the first Black woman to hold the job.
Already the city has gone to court to challenge the Law Enforcement Officers’ Bill of Rights passed on the last day of the legislative session in May. That law creates a new legal roadblock to police accountability by giving officers extra legal protections that citizens don’t enjoy.
The change in the City Counselor’s office is part of a larger reform in which the mayor is proposing an Office of Public Accountability to put civilians with subpoena power in charge of police misconduct investigations, Boyd said.
Carnie, the lawyer, said he was glad to hear the city is reconsidering its legal position. “My client is happy to hear that the city is taking a fresh, closer look at this case. Hopefully the city will implement a much needed change in policy and training as a result.”
Two common legal roadblocks
The Gilbert case highlights two of the steepest roadblocks to police accountability: objective reasonableness and qualified immunity. Objective reasonableness bars judges and juries from second-guessing the officer on the scene. Qualified immunity protects an officer from being held accountable for illegal practices if the courts have not clearly determined them to be illegal.
The two doctrines together give officers across the country the benefit of the doubt in cases of alleged police abuse and killings.
The City of St. Louis has argued in court that both doctrines should protect the officers involved in Gilbert’s killing.
In characteristically proactive language in the city’s legal brief last year, Deputy City Counselor Robert H. Dierker calls Gilbert’s mother’s arguments to the Supreme Court “agitprop” designed to “use published reports regarding the death of George Floyd as a cudgel to try to browbeat this Court into reviewing a case that is a straightforward application of basic Fourth Amendment principles. The only things in common between this case and the reports regarding George Floyd are drug use and heart disease.”
But Carnie, the Gilbert family’s lawyer, said the nation’s horrified response to the death of Floyd under a police officer’s boot shows that police can’t be given the discretion to “put a handcuffed person face-down on the ground and push into him until he suffocates.”
Just before Christmas 2015, police found Gilbert in an abandoned home and discovered that he had failed to appear in court on a traffic violation. They arrested him. In the police holdover cell, Gilbert seemed to be putting something around his neck. Fearing a suicide attempt, officers piled into the 7-by-9-foot cell and were met with a struggle from the 5 feet 3 inch, 160 pound 27-year-old. They handcuffed him, manacled his legs and then pushed him into the floor.
Gilbert tried to lift himself up and yelled pleas for help, according to court records.
“It hurts. Stop.” Those were his last statements. After 15 minutes, during which six officers weighing a combined total of 1300 pounds were on top of him, he stopped breathing. The officers couldn’t find a pulse.
An autopsy found a fractured sternum and contusions and abrasions on his shoulders and upper body. A medical report stated that the “cause of death was forcible restraint inducing asphyxia,” while methamphetamine and heart disease were “underlying factors.”
A district court judge agreed that Gilbert had died from asphyxiation, but threw out the lawsuit based on qualified immunity: that no court had clearly ruled that it was illegal for police officers to put hundreds of pounds of pressure on a prone suspect who was shackled and resisting. Because the officers couldn’t be held accountable, neither could the city, the judge ruled.
The 8th U.S. Circuit Court of Appeals in St. Louis took it a step further. It said it didn’t even have to get to the qualified immunity issue. Applying the “objective reasonableness” standard, it found that no reasonable jury could decide that the officers used unreasonable force.
The U.S. Supreme Court, at the end of its session in June, disagreed with the 8th Circuit and told it to take another look. It cited a “well-known police guidance recommending that officers get a subject off his stomach as soon as he is handcuffed” because of the risk of suffocation.
“Struggles of a prone suspect may be due to oxygen deficiency, rather than a desire to disobey officers’ commands. Such evidence, when considered alongside the duration of the restraint and the fact that Gilbert was handcuffed and leg shackled at the time, may be pertinent” to how much of a threat could be “reasonably perceived by the officers.”
“Having either failed to analyze such evidence or characterized it as insignificant, the court’s opinion could be read to treat Gilbert’s ‘ongoing resistance’ as controlling as a matter of law. Such a per se rule would contravene the careful, context-specific analysis required by this Court’s excessive force precedent,” the court said.
In other words, the Supreme Court is saying that courts can’t say police are always acting reasonably when they apply pressure to a prone suspect who appears to be resisting. It was remarkable the court took the action without even hearing oral arguments.
Justices Joseph A. Alito Jr., Clarence Thomas and Neil M. Gorsuch — the three most conservative justices — disagreed with the Supreme Court’s action. Alito wrote that the court should give the appeals court the benefit of the doubt in its opinion — which would amount to giving the benefit of the doubt to a court interpretation that was already giving the benefit of the doubt to police. The benefit of the doubt on top of the benefit of the doubt.
Significantly, Chief Justice John G. Roberts Jr. didn’t agree with Alito even though he did the last time the court resolved a similar case — the 2015 Kingsley decision involving a pretrial detainee in Wisconsin who had been handcuffed, tased and allegedly knocked into a concrete bunker. In Kingsley, Roberts had joined the late Justice Antonin Scalia’s dissent, which stated, “The Constitution contains no freestanding prohibition of excessive force.” Even the infliction of “objectively unreasonable harm” by officers does not violate the Constitution, he said, accusing the majority of being “tender hearted.”
Not only did Roberts desert the conservatives in the Gilbert decision, but two new conservative justices — Brett M. Kavanaugh and Amy Coney Barrett — joined him in agreeing with the three liberal justices that cases of prone restraint needed more court scrutiny. Roberts is a savvy chief justice and most likely didn’t want to be opening the door to police abuse in prone restraint cases just as a jury in Minnesota was determining Floyd’s death to be murder.
Lombardo, Gilbert’s mother, says the only difference between her son’s death and Floyd’s was that St. Louis police “weren’t videoed.” Former St. Louis Police Chief Sam Dotson backed his officers but did take steps to introduce video in the holdover cells.
Lombardo said in an interview that she is angry that the police “smeared” her son’s name. “Why when the police kill do they have to attack his character?”
Lombardo acknowledges her son had drug problems but says he wasn’t homeless, as police claimed. “Nick was a happy, young man and full of life. He was funny and a jokester. His little sister, 10 years younger, struggles every day about losing her brother. He was learning flooring from his dad and his uncles. They say he was homeless, but they knew my address.
“If Nick’s case had gotten notoriety … it could have saved (Floyd) and could have saved a lot of other people. … I can’t even watch the George Floyd video. I think of my own son.”
Even if the 8th U.S. Circuit Court of Appeals agrees that police acted unreasonably, the court would then have to consider qualified immunity. Because the 8th Circuit Court itself thought the officers’ actions were reasonable before, it’s hard to see how it could conclude they should have known they were illegal.
But Carnie points out that the Justice Department issued guidance in 1995 to all law enforcement officers to avoid pressing on prone suspects who were restrained for fear of suffocation. He argues that because this guidance is 26 years old, officers in St. Louis should have known it.
In a court filing this August, Carnie pointed to multiple federal appeals courts that have ruled that the law against putting force on a bound, prone prisoner has been “clearly established” and therefore should not allow officers to escape through the qualified immunity loophole.
Dierker’s response for the city was that the Supreme Court had actually “found no fault” with the 8th Circuit’s decision — even though it had sent it back to the appeals court with an opinion expressing disagreement. Dierker said the appeals court shouldn’t spend any more time on arguments before it “put(s) an end to this case.”
A flash-bang and then 9 bullets
No-knock drug raids date back to the Nixon administration’s war on crime in the 1960s. Local officials also began to use the tool of obtaining a no-knock warrant from a judge that enabled officers to break down the door without knocking. The tactic was supposed to be used in “exigent” circumstances where suspects were armed or might flush drugs before officers could seize them. One purpose was to safeguard officers from armed suspects.
A nationally notorious no-knock raid occurred in 1973 in Collinsville, across the river from St. Louis. Twelve law enforcement officers were indicted for a series of raids on 12 different homes, conducted without enough evidence of wrong-doing on the part of the accused.
Clark’s family and lawyers say the fatal Feb. 21, 2017, no-knock raid on Clark’s home was based on false information.
The no-knock warrant obtained by Officer Thomas Strode was the 27th no-knock warrant of the year, all approved by a judge. Many of Strode’s applications used the same boilerplate language claiming unidentified — and unverified — confidential sources said guns and weapons were in the home so it was too dangerous to knock on the door and execute a search warrant.
The warrant in Clark’s case portrayed the 63-year-old veteran in a way his children, Donald Ray Clark Jr. and Sherrie Clark-Torrence, didn’t recognize.
In a video about their father, they spoke of an Army veteran who was a disciplinarian who worked in security before multiple health problems diminished his eyesight and hearing and he required a cane. Clark had recently moved into his daughter’s house so that a younger daughter, 8, could have her own bedroom. Clark went to bed around 8 p.m. every evening on a couch in the front room. Worried about crime, he put extra screws into the front door to strengthen it. Clark had never been charged with a crime.
In contrast, the no-knock warrant portrayed Clark as being central to a three-home drug ring on California Avenue: Clark’s house at 4023 and his neighbors’ at 4025 and 4029.
After searching 4025 and 4029, more than 17 heavily armed officers of the SWAT team lined up to enter Clark’s home, where he was asleep after a difficult day riding the bus to doctor appointments.
The officers broke down the door and Officer Ronald Mueller threw a “diversionary device” into the front room where Clark slept. It went off with a loud flash and bang, disorienting Clark. Police did not identify themselves as they piled in, according to the lawsuit.
Moments later, Officer Nicholas Manasco opened fire with an assault rifle, hitting Clark with a hail of nine bullets. Manasco said he was responding to gunfire, but the lawsuit says Clark was unarmed. Clark fell to the floor and mumbled a few words. Manasco and Officer James Zwilling stood over Clark, pointing their weapons at him while other officers rushed by and searched the house, the lawsuit alleges. None of the officers immediately called for medical assistance. When Clark Jr. got to his father’s house, police wouldn’t tell him what had happened or where his father had been taken. He and his family didn’t receive word of their father’s death until the following day.
Manasco said Clark had fired at him and police said they had found drugs. The lawsuit claims Clark didn’t have a gun and the drugs were brought into the house from a nearby house. Chief Dotson cleared his officers of wrongdoing.
Officer Manasco has killed two other civilians — including Isaiah Hammett a few months later in another SWAT raid for which he and the city were sued. Police entered Hammett’s residence with a flashbang and fired 93 shots, hitting Hammett 24 times. In 2011 Manasco killed Carlos Boles, took pictures of his bullet-ridden body and showed them to another officer. An investigation was announced, but the Boles episode did not remove Manasco from the SWAT team. Manasco retired from the department earlier this summer.
Last fall, Missouri legislators heard testimony from across the state about the abuses of no-knock warrants. But the Missouri Sheriffs’ Association and Missouri State Troopers’ Association, which have powerful voices in the Legislature, claimed they are used so rarely that there is no need for regulation.
Five other states voted to restrict no-knock warrants in response to Breonna Taylor’s death in Louisville, Kentucky.
Editor’s Note: This story first published on Dec. 21, 2021 in the print magazine.
William H. Freivogel is publisher of GJR, a professor of media law at Southern Illinois University Carbondale and a member of the Missouri Bar.