Equipped with a camera and basic training on how to use a gas mask, New York attorney King Downing walked the streets of Ferguson, Mo., on Tuesday night. Downing was on the ground as a legal observer, documenting the interaction between police and protesters.
Downing is one of dozens of lawyers, law students and legal support staff from Missouri and across the country to come to Ferguson over the past two weeks. Many are serving as legal observers—“the eyes and ears of those who protect and guarantee civil rights,” Downing told The National Law Journal. Other attorneys are representing arrested protesters, handing out pamphlets on the First Amendment and providing other legal services.
“We’ve really been overwhelmed by attorneys from across the country who want to help out,” said Tony Rothert, legal director of the American Civil Liberties Union of Missouri. “That feels good.”
Video of law student and legal observer Max Suchan’s arrest. Courtesy of Mawuli Davis.
Just because lawyers are more often on the sidelines in Ferguson doesn’t mean they’ve been out of harm’s way. Several attorneys reported being tear-gassed while observing protests. Early Wednesday morning, Max Suchan, a law student serving as a National Lawyers Guild legal observer, was arrested. Suchan, a student at DePaul University College of Law, was released after spending about four hours in a police wagon, according to the guild. He has not been charged.
Demonstrations flared in Ferguson after police fatally shot an unarmed black teenager, 18-year-old Michael Brown, on Aug. 9. Brown’s death is still under investigation. Tensions have ebbed and flowed between protesters and police. Attorney General Eric Holder Jr. traveled to Ferguson on Wednesday to meet with community members and get updates from law enforcement and prosecutors.
Lawyers described the demonstrations in Ferguson as a hybrid of traditional mass protests, such as rallies at political conventions, and less-organized, open-ended events like the Occupy movements that lasted for months in a number of U.S. cities. The mix can make coordinating legal work tricky, Rothert said.
“Most mass demonstrations, we know when they’re going to end. They are a specific event that has a beginning and an end,” he said. “What makes this unusual is we don’t know—there’s no obvious end in sight. Occupy was like that.”
Mawuli Davis of the Davis Bozeman Law Firm traveled from Atlanta with three other lawyers and a legal assistant after seeing a call for help from the National Conference of Black Lawyers, according to NLJ affiliate publication Daily Report. Davis told NLJ he worked as a legal observer during protests on Tuesday night until around 2 a.m. Wednesday morning, sporting a yellow T-shirt identifying himself as an observer. He was out again several hours later when protesters gathered for a courthouse demonstration.
“Our hope was our presence would reduce the likelihood of the police doing something illegal and arresting people without probable cause,” he said.
Davis said he captured video footage of police “moving in aggressively” against protesters as well as the arrest of Suchan, the law student serving as a National Lawyers Guild observer.
Dan Gregor, interim executive director of the National Lawyers Guild, said in an interview on Tuesday that, besides sending out legal observers, the guild tapped lawyers to visit arrestees in jail—not necessarily to represent them, but to at least carry messages to and from family members and employers and work to get them set up with counsel. It can be easier to enter the jail with a bar card, he said.
“We really want to clearly communicate to arrestees, you’re not lost in the system,” he said. Gregor said he knew of lawyers coming to Ferguson from Atlanta, Detroit, Chicago, New York and San Francisco, and he know of at least one more carload coming up soon from New Orleans. He also fielded offers of support from Texas and Florida.
Long term, Gregor said, the “wheels are starting to turn” on preparations for civil rights and police-misconduct litigation.
Several lawsuits have already been filed. On Aug. 14, the American Civil Liberties Union brought a case in Missouri federal district court challenging police interference with efforts to record police-protester interactions. The two sides reached an agreement in writing the following day concerning the right to record.
On Aug. 18, the ACLU filed another case in the same court challenging police orders prohibiting individuals from standing for more than five seconds in a public place. A judge denied the group’s request for a temporary restraining order.
The ACLU and the National Bar Association—the nation’s largest association of African-American lawyers and judges—filed cases in St. Louis County Circuit Court seeking records about the Michael Brown shooting. Those cases have yet to resolve.
Legal observers help lay the foundation for future, more comprehensive civil rights litigation, Rothert said. “Someday we may want to deconstruct what happened, especially how, I think, some civil liberties were made the enemy of public safety, perhaps unnecessarily,” he said.
National Bar Association President Pamela Meanes, a partner in the St. Louis office of Thompson Coburn, said community education is another big piece of the work lawyers are doing in Ferguson. Last weekend, the association helped sponsor events aimed at making sure local residents and demonstrators understood their rights.
Lawyers in Ferguson handed out small cards explaining what people should do and say if approached by a police officer. Meanes said a number of lawyers insisted on wearing suits to the events—their uniform, they told her. Just like police officers wear a uniform, she said, “there were those who wanted to be identified in their uniform to say we stand united for justice.”
The St. Louis-based Mound City Bar Association, one of the oldest African-American bar associations west of the Mississippi River, is organizing a voter registration drive later this week. The group assisted several witnesses to the Brown shooting with turning over information to federal investigators, and member lawyers are mobilizing to pass out educational materials on the First Amendment and provide other legal services, according to member Chalana Oliver.
Other groups with affiliated lawyers on the ground include the National Police Accountability Project (a project of the National Lawyers Guild) and ArchCity Defenders, a St. Louis-based legal services organization.
Media lawyers have also been on hand to aid the heavy media presence in Ferguson. Mickey Osterreicher, the general counsel of the National Press Photographers Association, traveled to the region this week to provide legal assistance to journalists, according to NLJ affiliate publication Corporate Counsel.
Benjamin Lipman, a media lawyer at Lewis, Rice & Fingersh in St. Louis, said lawyers in his office are working with the Reporters Committee for Freedom of the Press and various news organizations.
“Most of what we’re doing is trying to maintain a dialogue with the authorities to explain to them the rights that the media has and the breathing space they need to have so they can communicate this story to the public,” Lipman said.
Gregor said he expected more lawyers to get involved as the situation in Ferguson continues to unfold. “I genuinely believe this represents a major escalation of police response and with that, we’re going to have step up our game with legal support and jail support and civil rights litigation,” he said.