Earlier this year, Huffington Post reporter Ryan Reilly and Washington Post reporter Wesley Lowery bet on whether St. Louis County prosecutors would file charges against them after their arrests last summer in Ferguson, Missouri. Reilly thought it was likely, while Lowery thought it was unlikely—and now Lowery, the bet’s loser, owes his partner in crime (literally?) a Happy Meal.
Lowery learned Monday that prosecutors are charging him with one count of trespassing and one count of interfering with a police officer. He received a summons ordering him to appear in a St. Louis County court later this month. And Reilly? He was issued a summons on the same charges, all filed just days before the one-year statute of limitations would run out (and, notably, a week after the county settled a civil-rights lawsuit filed by yet another journalist, agreeing to dismiss all charges against him—one for unlawful assembly, one for failure to obey a lawful order, and one for interfering with a police officer).
Reilly and Lowery had wagered a Happy Meal because the charges stemmed from a police encounter at a McDonald’s restaurant. Here is The Washington Post’s summary of the facts surrounding their arrests, in August 2014:
Journalists had been using a Ferguson McDonald’s as a staging ground to cover unrest after the shooting of black teenager Michael Brown by white police Officer Darren Wilson. Asked by officers to leave the restaurant, Mr. Lowery and Mr. Reilly apparently didn’t leave quickly enough for the police. Mr. Lowery, for one, started recording a video on his phone while he packed up, which obviously riled an officer who improperly ordered him to stop recording. On the video, the officer walks toward the exit with Mr. Lowery while the Post reporter asks legitimate questions and tries to record the interactions other officers are having with Mr. Reilly, who is not quite done packing up.
Next, there is confusion about which door Mr. Lowery is supposed to use to exit, during which he asks if he can just adjust his backpack, which, Mr. Lowery later explained, was slipping off his shoulder. At that point one of the officers says, “Let’s take him.” According to an account Mr. Lowery wrote after his arrest, the officers slammed him into a soda machine, handcuffed him and led him and Mr. Reilly to a police van. The officers refused to tell Mr. Lowery or Mr. Reilly their names.
For its part, McDonald’s has said it didn’t ask for the journalists to be arrested, and the local manager, who is listed as a government witness, reportedly said the charges are a “waste of time.” I’d add that they’re bullshit and highly misguided (see my earlier statement, a nod to a scene from My Cousin Vinny). The arrests seem to have been deliberate and unjustifiable attempts to interfere with the press, and the charges, perversely, memorialize and magnify that interference.
I’m hardly out on a limb here.
News Guild President Bernie Lunzer called the charges “a gross abuse of power” and a “vile assault on the First Amendment.” Society of Professional Journalists President Dana Neuts said county officials “have learned nothing in the last year about the … rights of journalists to cover the news without interference or threats.” And Committee to Protect Journalists Deputy Director Robert Mahoney said he was “appalled” and that “US authorities have no business hauling reporters into court for doing their jobs, especially on a world story like Ferguson.”
Reilly’s and Lowery’s employers agree. Marty Baron, executive editor of The Washington Post, called the charges “outrageous” and said they represent “contemptible overreaching by prosecutors.” The Huffington Post said a “crime was committed at the McDonald’s, not by journalists, but by local police who assaulted [Reilly and Lowery] during [their] violent arrests,” wryly adding, “At least we know St. Louis County knows how to file charges.”
(Although I’m focusing here on the charges against Reilly and Lowery, it’s worth noting that the county has also charged CTV’s Los Angeles bureau chief, Tom Walters, with one count of interfering with a police officer—coming nearly a year after he was arrested in Ferguson.)
But, why file at all? And why nearly a year later? Mum has been the word from prosecutors. Cordell Whitlock, a spokesman for the County Executive and a former KSDK anchor and reporter, told The Washington Post that the charges are a “pending legal matter” and that he didn’t know why it took nearly a year to file them. Whitlock didn’t respond to my request for an interview, but based on his largely empty comments to the Post, I’d say the spokesman, to paraphrase what James Reston once said about Richard Nixon, likely started out with some good instincts from his journalist forebears, but by diligent hard work, he has overcome them.
At any rate, I was dumbfounded in 2014 by the arrests, and I’m dumbfounded now by the charges. For one, I don’t think they’re supported by probable cause, the absence of which renders a warrantless arrest invalid. In general, whether probable cause exists depends on the “totality of the circumstances,” i.e., everything the arresting officers know or reasonably believe at the time an arrest is made. Here, the reporters were in the process of complying with the officers’ orders when they were arrested—a fact that undermines any reasonable basis for the arrests and charges.
(Side note: If there’s no probable cause, the journalists could file a 1983 action, under 42 U.S.C. § 1983, against the officers. That’s what the journalist did who just scored a favorable settlement with the county. Section 1983 basically allows people to sue government officials for depriving them of constitutional or civil rights, as I’ve discussed before.)
Second, regardless of whether the charges are supported by probable cause, the prosecutor should have declined to bring them. In principle and practice, prosecutors are supposed to be ministers of justice, and they have considerable discretion in charging decisions. Indeed, “[t]he prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction,” according to the American Bar Association’s Standards for Criminal Justice.
Among the factors that a prosecutor may consider in exercising discretion, the ABA says, are the extent of the harm caused by the offense, and the disproportion of the authorized punishment in relation to the offense.
Against that background, I can’t fathom how it’s in the public interest to file charges against two journalists who reported richly and persistently from the site of an international news story—even if you assume, for the sake of argument, that probable cause existed. Reilly and Lowery revealed abuses of government power, they gave voices to all manner of protestors and police officers, they investigated the interminable issues of race and class in American communities—and how people engage in collective grieving.
Reilly’s and Lowery’s reporting illuminated the biggest story in the world at the time, and if declining to charge them in connection with that reporting isn’t in the public interest, then I don’t know what would be.
Beyond that, what harm was caused by the alleged offenses? The police chief, after all, released Reilly and Lowery as soon as he learned they had been arrested and the reason. They hadn’t caused a hazard or contributed to one, the restaurant hadn’t demanded their removal, and, again, they were in the process of complying with the officers’ orders when they were arrested. I agree with The Washington Post’s assessment that the journalists endangered nothing “except the egos of the officers involved.”
With that in mind, consider the disproportion of the authorized punishment in relation to the offenses. A trespassing charge and an interference-with-a-police-officer charge each carries a penalty of one year in prison and/or a $1,000 fine. To be clear, that’s one year in prison for not leaving a McDonald’s restaurant quickly enough, while trying to comply with the officers’ orders—and otherwise producing public-service journalism. That’s absurd.
But so is expecting fairness or prudence from St. Louis County officials. At this point, I wouldn’t be surprised if the police seized Reilly’s Happy Meal and prosecutors filed additional charges against him and Lowery for illegal betting.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.