Ferguson activist Michael Avery is once again a free man, after a federal judge dismissed the charges against him at the request of Michael Reilly, the federal prosecutor assigned to the case. Avery had been charged with incitement to riot based on Facebook posts. The charges were dismissed “without prejudice,” meaning they could be issued again. In his motion to dismiss, Reilly said the investigation of Avery is ongoing.
“Even though they state the investigation is ongoing and they could refile charges, we are hopeful that they will realize that this prosecution has no basis in law,” Marleen Suarez, Avery's attorney, told The American.
Though the government’s case against Avery never got past a couple of bond hearings, these hearings were revealing. They revealed nothing of Avery’s alleged criminality, for which Reilly presented no evidence. They revealed a great deal about the St. Louis Metropolitan Police Department’s notorious bike patrol and the absurd lengths a federal prosecutor was willing to go through to protect them against one black man with a point of view and a gun he legally owns and carries.
Reilly’s fight to get U.S. Magistrate Patricia Cohen to keep Avery in jail without bond focused largely on one controversial figure — Lt. Scott Boyher, who leads the city’s police bike patrol.
In a May 1 Facebook video, Avery is heard telling Boyher that Boyher took selfies with Avery when he arrested Avery at another protest. Avery then said that if Boyher was looking for any “type of confrontation,” that he could come find him at his house. But Boyher should “remember his age” because he doesn’t want him to “retire too early.”
Reilly argued that this was Avery making a threat on Boyher’s life, though police never arrested Avery or sought criminal charges for making these statements.
“The lieutenant was very direct and said, ‘I take his language and the fact that he has a firearm as a threat that the defendant would shoot me if given the opportunity,’” Reilly said.
After prodding from Cohen, Reilly conceded that it was legal for Avery to openly carry a weapon in a shoulder holster because he does not have any felonies on his record.
Boyher is currently named in at least 15 pending federal lawsuits, said attorney Javad Khazaeli, who is representing clients in these cases. All stem from protests following a judge’s verdict that former St. Louis police officer Jason Stockley was not guilty of first-degree murder in the killing of Anthony Lamar Smith in 2011. There is video evidence of Boyher pepper-spraying two protestors — Alison Dreith and Derek Laney — using a large canister of the chemical weapon, Khazaeli said. A police commander testified in an ACLU lawsuit that officers never use the large canisters on protestors because they drench people with the chemical.
Boyher was also part of a federal lawsuit, where a judge found that Boyher made an unconstitutional arrest of a St. Louis school teacher after the Women’s March in January 2017. The woman was standing near the curb on the street, trying to talk to Boyher when she was handcuffed and arrested. Police then drove her to an alley where nine to 12 officers took pictures with her, telling her to smile though she was crying, the judge’s opinion states.
“The city’s notorious bike patrol is well known for bullying and harassing those who dare to criticize unwarranted and excessive violence by local police,” said Tony Rothert, legal director of ACLU-MO. “Mr. Avery’s words demonstrate that he – like many others – is tired of the St. Louis police department’s racism, violence, and lack of accountability.”
Rothert and Khazaeli both pointed out that the FBI and U.S. Attorney’s Office have made no moves in more than 100 cases of protestors who were allegedly unlawfully beaten and maced by police during Stockley protests.
“Talking to a police officer in a rude way is not enough to support keeping a person in jail without a chance of relief,” Khazaeli said. “Yet when those same officers are identified on video violating the civil rights of more than 100 St. Louisans, this prosecutor’s office has sat on his hands for over two years. I heartened by the fact that this federal judge saw through the bluster of made-up, unsubstantiated allegations.”
Rothert said, “It is disappointing that Trump’s lawyers are prosecuting Mr. Avery for words, but can never muster the courage to prosecute police officers who repeatedly terrorize those protestors who insist that black lives matter.”