On Wednesday, August 20th, stories began to appear in the media that Incident Reports were being released in the Michael Brown shooting incident. But that they contained very little actual information.
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.
On August 12th the ACLU made a public records request under Missour’s Sunshine Law – for the St. Louis County Police Department’s Incident Report of the Officer-Involved Shooting (involving Wilson and Brown).
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On August 13th the St. Louis County Police Department responded – DENYING the request – claiming that it was EXEMPT based on a claim that there was an “open-investigation” and that this exempted it.
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After which the ACLU filed a lawsuit the next day to compel them to produce the record – and to get other relief. They were followed in this by the National Bar Association in a suit filed on August 18th.
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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 is in this context that I then entered the picture. Last weekend I made a new public records request for that particular Incident Report. I included in that a statement of the law that the Incident Report is NOT the equivalent of the Investigation Report, the latter IS exempt while the investigation is ongoing, the former IS NOT – but is a public record AT ALL TIMES. I also included a statement to the officer, Lieutenant Burk, who is the Commander overseeing the Central Records Division that to try that game with me – was not going to work – and that it constituted a violation of his oath of office as well as a criminal offense.
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I sent that via email on Sunday. But I did not stop there. I have had in waiting and development for a long time a STRATEGY for public records law usage to investigate public agencies and officials – that included what I have called a “Global Public Records Request.” What I mean by that – is for not just one person – but a large number of people filing for the same record. This to put pressure on the agency to release, to strengthen the evidence that this record was needed in the public interest, and to potentially add plaintiffs to a legal action if the record were not immediately produced.
So I put out a call – using primarily an article I published on photographyisnotacrime.com – as well as using an online petition site to provide the information – and this led to 160 others filing the request. [Here’s how to Make a Public Records Request for Ferguson Investigation]
[MY FOLLOW UP EMAILS TO CENTRAL RECORDS]
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On Monday morning I called and followed up on this – to ensure it was received and to verbally restate what I put in writing – I was NOT asking for the exempt Investigation Report – and they cannot claim that the records that are used by the Investigation are exempt – because the exemption applies only to the Report. [The Public Records Circus: Ferguson]
What I was told was a bit disturbing. Their email system had just been brought back up online. And so all the emails from that weekend had “disappeared.” So I stated to the Lieutenant what I requested and then stated that I would send it again – and I would contact all the others to resend theirs. The Department as well as the City of Ferguson have been claiming that emails are not being received because their systems are under attack by Anonymous. But I have seen no credible evidence that this is the cause of the problem.
I then discussed with him what I requested and how it was not exempt.
[EMAILED ERROR MESSAGE – FIRST OF SEVERAL VERSIONS
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[EMAILED ERROR MESSAGE – SECOND OF SEVERAL VERSIONS]
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He agreed to me it was a public record under the law, was not exempt, and had to be produced. We then discussed the denial, from his department – in a hand written note – claiming it was exempt. He explained he was not the one who denied it. As I probed more in our conversations it was clear that the game was being played by the Legal Division of the Police Department.
[EMAIL EXPECTING RECEIPT TUESDAY 19th]
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I immediately contacted the Missouri ACLU and the National Bar Association informing them that I was getting the Report and that I had the Lieutenant on record stating it was a public record and was not exempt.
[EMAIL TO ACLU]
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He then told me I could expect the Report on Tuesday. I did not hear back from him until about 7 pm that night. He did email me – recognizing he did not deliver as promised – and stated that he could not send the record that day because he had been called out to Ferguson all that day.
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On Wednesday, however, he produced it pursuant to my request. I then provided what I received to the ACLU and National Bar Association.
[RESPONSE PRODUCING THE INCIDENT REPORT]
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I also told them that I had followed up after receiving it to inquire as to why there were some glaring omissions – and to get confirmation that these omissions did not come from a redaction or other withholding of information and that no exemption was being claimed. I was told there was no redaction – and that was the entirety of the Report.
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I stated to him that there was a significant set of information – namely the “narrative summary” of the officer about what they were called to, what they found, and what they did – that is glaringly absent.
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 – 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.
[ROBBERY INCIDENT REPORT]
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He stated to me that Missouri’s Sunshine Law DEFINES the Incident Report – and that he was told it only prescribed those three things. I disagreed.
Here is the actual statute that is applicable to this – what the Police MUST create, maintain, and produce upon request:
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;
[MO SUNSHINE LAW]
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Note in particular the following clause in that: “and immediate facts and circumstances surrounding the initial report of a crime or incident“.
This is exactly what I stated was glaringly missing from the Report. I conveyed all of that information about that conversation to the ACLU and National Bar Association.
[EMAIL TO ACLU/BAR]
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What is further revealed in the Report released – is that it did not exist when the original request was made and then denied. But – problematic for the official story – is the fact that if no record existed this would have been stated to the ACLU, rather than making the claim (knowingly false – a class A misdemeanor) that it was exempt because of an investigation.
What is also clear from the record as well as my conversations with Lt. Burk – this record of this Incident Report was created in response to my request, rather than at the time of the incident as is normally required, and that it intentionally has been created to withhold the key narrative elements, normally provided and required under law, that make the report useful and that is what the public is seeking according to our rights under the law.
Here is what we learn from what is in the record (the mistake these actors make is to think they are smarter than they really are – and smarter than everyone else. Sometimes what is in the records, leads to answers to other questions as well as raises further questions, and what is not in the record, often itself is revealing of much of significance).
[ST LOUIS COUNTY PD INCIDENT REPORT]
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In this record are two dates: the date filed and the date signed off on by a superior. The date it was filed – was Tuesday August 19th. This is after the original denial (August 13th) – AND – after my request (August 17th). Thus – recognizing they had a legal obligation to produce the record upon my request – rather than produce the the original report, if one existed as was required by law, policy, and practice, what they did is REDEFINE what their policy and practice was and what they routinely put in Incident Reports – and then CREATED A NEW one according to that new definition.
(I am inclined to believe an Incident Report DID exist prior to and independent of what has now been produced – and they are playing a game of sleight of hand to avoid giving it to the public.)
Thus when Lt. Burk told me on Tuesday night that the delay was because he was called out – that is not entirely true. (Perhaps he was not able to push the others in the Department to produce it – but the Department was not ready to produce it nonetheless). That had to wait till a supervisor approved it – that happened Wednesday – and then it was released.
Now here is where they have trapped themselves – and will be caught red-handed. Every time you create a record – you create evidence. If you play a game and it is recorded – your game will be exposed if someone knows what to ask for and does.
And so I have been asking for other records – and I have been gradually getting most of them. Some are not being honestly responded to and I have had to follow up to try and enforce the law with regard to record production. And I will get all of them even if it is necessary to go to court to compel the police to produce them.
[I will update further as to what I am requesting, why I am requesting those, and what I receive in response. And I will also be calling on others to participate in the process of these requests and – if again necessary – to employ the tactic of anotehr Global Public Records Request.]
After the game played by St. Louis County Police, in response to my request, providing a new “report” that provides only date, time, and location – in violation of the law and policy – Ferguson followed suit and also did the same. Again violating both policy and law.
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One record that I did get – was the policy on Reports of the Ferguson Police: including when they needed to be filed, by whom, what they needed to contain, and how they were to be filed and maintained.
[REPORTING POLICY REQUEST]
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And this really spells trouble for the Ferguson Police (a similar request is still pending for the policies of the County police).
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Because here is what it says about filing reports:
A. Whenever an officer makes an arrest, responds to a call that requires a report or otherwise conducts an investigation, which requires a written report, he will obtain
a “report” number from the dispatcher.
B. The officers are held accountable for submitting a report for every report number they requests.
C. Generally, officers are to submit their completed reports to their supervisors for approval prior to terminating their tour of duty. This is accomplished by radio or email notification to the supervisor that a numbered report is ready for supervisor review in the I. T.I. system
And this is what is says about when reports are REQUIRED:
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
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 City of Ferguson has falsely stated to me that it has produced the Incident Report – when what it produced was not this one, but the one regarding the alleged robbery by Brown. And it has claimed that that report, an Incident Report in an unrelated incident, is responsive to my request for the Use of Force report/statement clearly required in the Department’s policy only in instances where there was a use of force and thus distinguishable from the routine Incident Reports).
Now look to this next section – because this is even more critical:
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.
Note that this REQUIRES that “an officer’s narrative as to the nature, facts and officer actions” be part of all reports.
And so what we now know is that despite the games being played with the original report, if there was one, the police are knowingly violating the law (which we know that other parts of that policy required it to be filed by the end of the shift – or with permission the next day – and absolutely no later than the officer’s next “break” from duty). And we can see clearly the game of the “new” report policy and the new report creation.
What we know is that the reports that both agencies have released violate Missouri’s law on what is to be contained in a report of this kind and that the public has a right to obtain. And we know that – at least Ferguson PD – has also violated its own policies.
Thus it has become clear that both law enforcement agencies are engaged in UNLAWFUL activities in order to cover up the facts and provide cover for the officer. And this is highly problematic. It has the law enforcement agency declaring that it is “above” the law.
Here is the relevant statute on the CIVIL violations of law for not producing the records upon lawful demand:
610.100 Revised Missouri Statutes:
6. Any person may apply pursuant to this subsection to the circuit court having jurisdiction for an order requiring a law enforcement agency to open incident reports and arrest reports being unlawfully closed pursuant to this section. If the court finds by a preponderance of the evidence that the law enforcement officer or agency has knowingly violated this section, the officer or agency shall be subject to a civil penalty in an amount up to one thousand dollars. If the court finds that there is a knowing violation of this section, the court may order payment by such officer or agency of all costs and attorneys’ fees, as provided by section 610.027. If the court finds by a preponderance of the evidence that the law enforcement officer or agency has purposely violated this section, the officer or agency shall be subject to a civil penalty in an amount up to five thousand dollars and the court shall order payment by such officer or agency of all costs and attorney fees, as provided in section 610.027. The court shall determine the amount of the penalty by taking into account the size of the jurisdiction, the seriousness of the offense, and whether the law enforcement officer or agency has violated this section previously.
And here is the statute on the CRIMINAL penatles for knowingly violating this law:
A person who knowingly violates any provision of section 610.100, 610.105,610.106, or 610.120 is guilty of a class A misdemeanor.
I will have more information and analysis tomorrow and in the next few days on what is being learned from this important use, by citizens, of public records laws and the public records obtained by them to both investigate what is going on in those two police agencies and in an effort to hold those agencies and their officers and officials to account under the law they are sworn to uphold and to the public for whom they are supposed to serve.
I can add one further dimension to this. In the wake of the reports in the media that there was no report or that the report contained no narrative statements of the officer – many have surmised that this was the result of what is know as the Garrity Rule. That rule, deriving from a US Supreme Court decision in the 1970s, states that a government employee cannot be coerced to provide incriminating testimony against himself – based on the fifth amendment right. The reason this applies to government employees, and not private sector ones, is because that amendment states that the government – not private entities – cannot compel a person to give self-incriminating testimony.
This idea however is fundamentally flawed. The reasons is that an Incident Report is not testimony in an investigation by the government agency into the actions of the officer. It is, instead, a routine duty of the officer and an essential and necessary part of the Department’s mission to enforce the laws and to conduct proper and effective policing to the public.
See for example the following from Watson v. County of Riverside, 976 F. Supp. 951 (C.D. Cal. 1997)
“Accordingly, the court finds that the report in issue here regarding Watson’s arrest of an incarcerated prisoner WAS a requirement of plaintiff’s job and DID NOT constitute a compelled self-incrimination. As the element of compulsion was absent, the court finds that there is not a reasonable probability of success on the merits of Watson’scontention that his Fifth Amendment right was violated by defendants when they ordered him to write the report. In weighing this factor against the balance of hardships and possibility of irreparable injury to Watson, the court will DENY the motion as resting on this assertion.”
Most significantly to the reporting and the editorial comments on the inappropriateness of this lack of information being provided to the public, in the incident report, is that this court explicitly recognized not just the routine nature and duty of filing of Incident Reports by the officer and the essential function they play in the agency’s fulfillment of its mission. But they explicitly state that this information being made public is “crucial” to the public’s confidence in those agencies and their officers.
“A police officer’s DUTY to provide a report concerning his official actions is an ESSENTIAL element in the administration of our criminal justice system, and CRUCIAL to the maintenance of public confidence in it.”
Now there is one caveat about the mistaken claims that Officer Wilson did not provide this report due to the Garrity rule. While there is no coerced self-incrimination in requiring an officer to file a routine Incident Report that could invoke Garrity – an officer may still choose invoke the fifth amendment if they believe that the filing of the report, or particular information in it, may be “incriminating.” In that case they do not have the same protections as provided under Garrity – and they may be disciplined and even fired for insubordination or failing to fulfill the duties of their office.
HOWEVER, if 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.
[REQUEST 5th AMENDMENT]
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Thus we are left with a bigger story than simply Officer Wilson’s actions that led to the death of Mike Brown – which could and certainly to a reasonable person without a bias for law enforcement would appear to be an unjustifiable shooting and thus have resulted in an unlawful homicide. (Not all homicides are unlawful – but there are also various forms and level of crimes when the killing is unlawful, such as negligent homicide, manslaughter, and yes the various forms of murder – all potentially to be considered in this shooting) Unfortunately there are those who would shield all police officers from the consequences of their actions under the law – for either mistakes or wrongdoing. A shield that is denied to ordinary citizens. But police officers must be held accountable, at minimum, under the same laws and standards as the rest of us. A good argument can be made that their standards ought to be even higher. But it is simply not legitimate to have police subject to a lower and different standard of law than the citizen.
[RESPONSE 5th AMENDMENT]
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But now we also have the evidence to demonstrate that not only one, but two, police agencies – and thus the officials in charge of those agencies – are willing to thwart the law, deny the public its rights, and claim effectively they are “above” the law. All this in an effort to cover-up and conceal from the public just what happened that day in the streets of Ferguson. To cover for a “fellow” officer. This abuse of power and authority simply cannot be tolerated in a free and democratic society committed to the rule of law. It is the root cause both of the significant problem of police abuse of force and authority/power across the country and the growing loss of public trust and confidence in the police.
NOTE: The Sunshine Law ALSO defines, in a broader CATEGORY of “Incident Reports” OTHER reports – such as the CAD Report [Computer Aided Dispatch] and other logs – and these also are supposed to contain more than just the date, time, and location – but should include, not a narrative statement, but a log of the dispatchers statement and the officers response or a description of what was being sent via the dispatch.
You can see in the Ferguson robbery report that this information (as well as the narrative statements missing from the actual Incident Report itself) is contained in the associated CAD report. You can also see that this is missing from the CAD report released by the St. Louis County Police in addition to the narrative statements missing in the Incident Report itself.
This is clear evidence that this incident is being treated DIFFERENTLY than all other incidents – and that the Departments, not just Officer Wilson, are willing to violate both the policy and law to withhold this information from the public – even though it is their legal duty to produce it and our right to obtain it.
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.
The public has reserved to police officers officers the exclusive authority to use the ultimate force – the deadly force of a gun – but only when such actions are absolutely necessary to prevent further loss of life. And only when those actions and the required responsibilities afterwards are fully and faithfully within the established policies and laws. Without this restriction that power would be – and thus is being – abused.
Police are expected to respect both the public they are sworn to serve and protect and the laws they are sworn to uphold and defend. Until police are held to, at minimum, the same standards as the rest of us – they will continue to abuse their power and to cause real harm, including the most significant form thereof, and thus literally “get away with murder.”
Charlie Grapski, who is heading PINAC’s new Open Records Project, can be reached at email@example.com.