The 2014 arrests of journalists Ryan Reilly and Wesley Lowery for, well, doing journalism at a McDonald’s in Ferguson, Missouri, were misguided. The filing of charges by St. Louis County against them nearly a year later, just days before the statute of limitations tolled, was absurd.
Over the past eight months, the charges—one count each of trespassing and interfering with a police officer against Reilly, of The Huffington Post, and Lowery, of The Washington Post, which this week won a Pulitzer Prize for a project on fatal police shootings that grew in part out of events in Ferguson—have been the subject of numerous legal proceedings in Missouri courts. And somewhere along the way, the case has become not just disappointing but dumbfounding, a remarkable low point for government harassment of the press.
The basic story is by now pretty familiar, but here is how The Washington Post editorial board summarized the events surrounding the arrests:
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.
When the charges were filed last August, I argued that the arrests “seem to have been deliberate and unjustifiable attempts to interfere with the press, and [that] the charges, perversely, memorialize and magnify that interference.” I was hardly alone. Prosecutors should not have brought the charges.
But they did, and the last eight months have seen extensive litigation between St. Louis County and the journalists.
In October, Reilly and Lowery filed motions to dismiss the charges for lack of jurisdiction in the St. Louis County Municipal Court, arguing that their arrests were based on alleged conduct that occurred in an incorporated area of the county and that the charges arose under ordinances that apply only in unincorporated areas.
In response, the county conceded that it lacked the authority to charge Reilly and Lowery for alleged violations in the City of Ferguson. But the county went on to say that its lack of authority was “irrelevant,” because the county has “emergency powers” allowing it to charge people even when the municipal court lacks jurisdiction. In January, the presiding judge, Craig Concannon, denied the journalists’ motions in a one-paragraph order, writing that they were denied “for the reasons outlined in” the county’s brief.
Concannon, who happens to be a campaign donor to the county executive, did something else worth mentioning, too: He refused to allow Reilly and Lowery to depose the officers who arrested them. The journalists had asked to depose six officers listed as government witnesses, and the county had agreed to four.
The judge, however, ruled that because the matter was in municipal rather than state court, depositions were at his discretion—and he denied the journalists’ requests. That’s unusual for two reasons. First, in Missouri, criminal defendants are generally allowed, as a practical matter, to depose government witnesses regardless of court type. Second, judges don’t normally give less than the government offers.
At any rate, a few weeks ago Reilly and Lowery filed separate writs in the St. Louis County Circuit Court to challenge Concannon’s rulings, arguing that he abused his discretion by allowing the prosecutions to proceed. They also argue that the county’s invocation of “emergency powers” is not effective because neither the county nor the city had declared a state of emergency at the time Reilly and Lowery were arrested. If the writs are granted, Concannon would be required to dismiss the charges.
Gabriel Gore, of the St. Louis firm Dowd Bennett and a member of the Ferguson Commission, which ended in December, represents Reilly and Lowery. “We think the law is clear,” he said, “and we hope that the court will agree.” When I asked whether he was surprised that the cases are still ongoing, Gore said in jest, “I’m always surprised when a court disagrees with my clients’ position when my clients have the law on their side.”
Gore demurred when asked whether Reilly and Lowery planned to file an action under 42 U.S.C. § 1983, which allows individuals to sue government officials for depriving them of constitutional or civil rights. He said that until such a claim were filed, it would be a matter of attorney-client privilege—and that currently there’s no such claim pending. (Last year, the county settled a § 1983 suit brought by a journalist in connection with his arrest in a separate incident.)
St. Louis County Counselor Peter Krane, who has previously defended the decision to bring charges, did not respond to a request for comment.
So what happens next? The county has roughly three weeks left to reply to the writs. A ruling will follow. And then, perhaps, we’ll know whether St. Louis County can retreat from this low point—or whether local officials will continue to sink into the mud.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.