Editor’s note: Police in Ferguson on Friday, Aug. 15 released the name of the officer involved in the shooting. Our story as published and updated Aug. 14 appears below.
As the unrest in Ferguson, MO, has spread and grown, set off by the fatal shooting of 18-year-old Michael Brown and amplified by the militarized police response, one question has stood out among the many we can’t yet answer: Who is the police officer that shot Brown?
Embedded in that one question, of course, are several others: What is the officer’s rank? What are the officer’s responsibilities? Has the officer previously fired his or her weapon on duty? If so, what were the circumstances? Has the officer ever been disciplined? If so, for what?
The hacking group Anonymous this morning released on Twitter the name of the man it believes to be the officer, but so far the Ferguson police department has continued to refuse to release the name or otherwise confirm it, citing the risk of harm to the officer and his family and making unspecific references to a provision of Missouri law that allows law enforcement agencies to withhold an officer’s name in the interest of safety. This is a fast-moving story, but at the moment, in the absence of official confirmation media outlets appear not to have repeated the name identified by the hackers. (Update, 5 pm: The St. Louis County Police Department said this afternoon Anonymous had identified the wrong person.)
Thomas Jackson, the Ferguson police chief, has not invoked a particular provision in state law, and the police department did not return my calls seeking clarification. The hackers’ actions may force law enforcement’s hand, but if the department continues withholding the officer’s name, the chief may be compelled to cite his legal authority soon—groups and community leaders reportedly have filed records requests, and could sue if the department rejects them. (Update, 12:55pm: Per Vanita Gupta on Twitter, the ACLU of Missouri has filed a lawsuit today seeking public records connected to the shooting.)
If that does happen, how a court would respond is anything but certain. In addition to the aggressive tactics directed at their own community, law enforcement authorities in Ferguson have acted unreasonably and even unlawfully toward people trying to report on the events there—detaining two journalists working at a McDonald’s, reportedly ordering satellite trucks to leave the city, teargassing journalists as they filmed a protest. Still, a review of Missouri’s case law and open records statute suggests that the courts might see the question of disclosing the officer’s name as a surprisingly close one.
Special rules for police records
Disclosure laws vary widely at the state level, and the Missouri Sunshine Law opens by saying that records of public bodies are subject to disclosure “unless otherwise provided by law.”
Two of those “otherwise” provisions stand out in the Ferguson context. The first is subsection 100.3 of the Sunshine Law:
Except as provided in subsections 4, 5, 6 and 7 of this section, if any portion of a record or document of a law enforcement officer or agency, other than an arrest report, which would otherwise be open, contains information that is reasonably likely to pose a clear and present danger to the safety of any victim, witness, undercover officer, or other person … that portion of the record shall be closed and shall be redacted from any record made available pursuant to this chapter.
The language is broad enough that it might allow the police to withhold the officer’s name. Jackson has said death threats have been made against the officer on social media and by phone to the department and city hall. “If we come out and say, ‘It was this officer,’ then he immediately becomes a target,” Jackson said. For awhile, an officer’s name was circulating online and in Ferguson as that of the shooter, until Jackson said it was the wrong guy—but that officer still received death threats.
However, under subsection 100.3, the police would have to prove that releasing the name “is reasonably likely to pose a clear and present danger to the safety” of the officer and/or his family. In other words, it’s not enough to cite the existence of threats—they have to be credible and capable of being carried out immediately.
It’s impossible to say for certain (we know little about the threats), but I suspect the social media posts mostly wouldn’t meet that standard—the posters, all over the world, couldn’t immediately carry out their threats. And it’s not common for courts to accept the argument that remote threats are credible and imminent by virtue of the atmosphere they create locally. But any threats from people in and around Ferguson who could act hastily might meet the 100.3 standard.
Now, the second special rule for police records is subsection 100.5 of the Sunshine Law: