Expected lawsuit challenges right of Civilian Oversight Board to access internal affairs files | St. Louis Public Radio

Expected lawsuit challenges right of Civilian Oversight Board to access internal affairs files

Sep 24, 2016

Ever since the Civilian Oversight Board was officially established in 2015, the St. Louis Police Officers Association has threatened to sue.

The promised legal action began earlier this month. On Monday, a St. Louis Circuit Court judge will hear arguments on whether the Civilian Oversight Board should be able to access records from internal affairs investigations of St. Louis police officers.

The plaintiffs

Melissa Chavez and Samuel Jefferson are both St. Louis police officers who are facing a board complaint for the way they handled a domestic violence complaint. They are being represented by attorneys from the Millikan Wright law firm, which is seeking a preliminary injunction blocking the board from accessing the files until a judge can rule on whether access should be permanently banned.

The complaint

According to the suit, Chavez and Jefferson responded to a domestic violence call on March 31, 2016, involving an incident between Jerac Burks and his girlfriend. Burks later filed a complaint with the Civilian Oversight Board accusing the officers of "improperly handling an assignment" by taking sides in the dispute. On June 8, the Internal Affairs Division generated what's known as an Employee Misconduct Report from the oversight board complaint, and turned its file over to the COB on Sept. 2.

The lawsuit

Chavez and Jefferson make the following legal arguments:

  • "Improperly handling an assignment" is not something the COB has the authority to investigate.

According to the law that created the board, members can investigate "alleged misconduct against members of the Police Department involving excessive use of force, abuse of authority, sexual harassment and assault, discourtesy, racial profiling, or use of offensive language." Reviewing complaints outside of that scope is a violation of both state and municipal law.

  • The COB's review of closed records violates state law

State law explicitly gives cities the right to create a COB, the lawsuit says. But it also explicitly says that the St. Louis Civil Service Commission has exclusive authority over the discipline of sworn officers, and that "records prepared for disciplinary purposes shall be confidential, closed records available solely to the civil service commission."

The law goes on to say that records should be available to "those who possess authority to conduct investigations regarding disciplinary matters pursuant to the civil service commission's rules and regulations." It's not clear whether that language would apply to the COB.

  • The city law creating the oversight board doesn't make clear how board members who violate the law's confidentiality clause are punished.

The ordinance makes it a violation to "disclose confidential information to anyone other than" specific people, and a board member who does so will be disqualified from serving on the board. He or she would also be referred to "appropriate law enforcement authorities."

"To be valid, an ordinance must be clear, concise and certain in its terms and expressions," the lawsuit argues, and court precedent says that vague ordinances are invalid. "While the COB Ordinance contains a confidentiality clause, the penalties for violating the clause are uncertain at best."

The harm

To win a preliminary injunction, Chavez and Jefferson have to prove they'll suffer irreparable harm that can't be fixed with monetary compensation. The officers say that allowing board members and staff to have access to their internal affairs files will:

  • "Destroy and/or diminish" a long-standing right to privacy of their personnel records;
  • Cause them stress, anxiety and emotional distress because their personnel records may be disseminated to members of the media and public. That stress is worse in the current climate because they could be the "targets of threats and violence from individuals with anti-police agendas";
  • Cause them stress, anxiety and emotional distress because there is a risk that the mayor and the St. Louis Board of Aldermen could interfere in the investigations and recommendations of the COB;
  • Cause them stress and anxiety because future promotions and transfers could be affected by the aldermen and the mayor;
  • Violate their constitutional rights against self-incrimination by making public statements that officers are compelled to give under threat of termination, called Garrity statements.

Civilian Oversight Board members Ciera Simril (L) and Heather Highland chat during the first meeting in March. (File photo)
Credit Camille Phillips | St. Louis Public Radio

"Not only will the Defendant [the city of St. Louis] and public not be harmed by a preliminary injunction, but the Defendant and public interest will be best served by ensuring that the COB operates in a lawful, fair and equitable manner," the lawsuit says. "Violating Missouri state law and reviewing complaints outside the scope and authority granted by the COB Ordinance does not promote the goals of fairness or equality that the ordinance purportedly seeks."

Nicolle Barton, the executive director of the board, said the lawsuit isn't surprising.

"I don't believe it'll stop us," she said.

Follow Rachel Lippmann on Twitter: @rlippmann