The federal prosecutor who charged Ferguson activist Michael Avery for incitement to riot based on Facebook posts asked a federal judge hearing the case to dismiss the charges on Wednesday, June 17.
Michael Reilly, the federal prosecutor, asked U.S. Magistrate Judge Shirley Padmore Mensah to dismiss the charges “without prejudice,” meaning the charges 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.
Mensah signed the order Wednesday afternoon, and Avery had his ankle monitor for house arrest removed shortly after.
Reilly filed his motion after twice failing to get U.S. Magistrate Patricia Cohen to keep Avery in jail without bond. On June 12, Reilly argued — for the second time — that the only way to keep the community safe from Avery was to keep him in jail. For the second time, Cohen said she did not agree, largely because Avery has a “very minimal arrest record.”
The day before, on June 11, Cohen had ordered that Avery be released on house arrest with significant restrictions — including no access to a phone, computer or use of social media even through a friend or family member. But that afternoon, the U.S. Attorney’s Office issued a motion to have the judge reconsider, saying that the government had new evidence.
That evidence was a Facebook livestream shot on May 1 of Avery bad-mouthing a city bike cop at a protest, when people were decrying the city’s decision to clear homeless tent encampments downtown in the middle of the pandemic. Reilly repeatedly tried to tell Cohen that there was a connection between this incident and the attack on several bike cops during a June 1 protest. Reilly also argued that there was a connection between Avery’s Facebook posts about how people looted during the Minneapolis protests and the looting in St. Louis at Lee’s Pawn Shop — where retired city police captain David Dorn was killed.
However, Avery was incarcerated on May 31 – the day before that looting and killing.
“We agree he has a First Amendment right, but this is what exceeds it and why we say he violated the statute,” Reilly said at the June 12 hearing. “He was making some very, very threatening posts and if you look at the timing in the midst of riots...”
Cohen cut Reilly off before he could finish, saying that the hearing was to decide if Avery was too much of a danger to the community to be held on house arrest — the highest level of detainment outside of a jail cell. But Cohen couldn’t help adding, “I mean, Lee’s Pawn Shop. That’s just really a stretch. You can’t really connect Avery to the pawn shop shooting. If you could, I’d like to hear about it! I think everyone would.”
Reilly yelled back, “He’s calling out looters!”
Reilly was referring to Avery’s Facebook posts on May 30, where Avery wrote about the looting taking place in Minneapolis. Avery’s defense attorneys have argued repeatedly that he was reporting on what he saw, not encouraging others.
“I’m not saying he was directly involved in that,” Reilly said to Cohen, “but he is calling out, advocating looting. And when I look at the timing of his posts, I absolutely say it’s relevant to the threat he presents to the community and the bike patrol officers.”
Reilly also said that Avery posted “Off the pigs,” which is also “relevant to his state of mind and the threat he presents.”
Cohen responded, “Well, I’m probably older than all of you. ‘Off the pigs,’ that’s a throwback. Anyway. (She laughed.) Anything else, Mr. Reilly?”
“Judge, he’s a known figure in these events, and he’s a director,” Reilly said. “He’s a leader in some of these protest movements, so his posts do carry weight. I know he was in custody, Judge, but it’s possible to incite people and then, once they’re incited, they’re incited. So that goes to the danger he presents.”
Suarez addressed the allegation that the violence on June 1 was connected to Avery’s posts.
“What [Reilly] is not providing is any nexus between Mr. Avery’s free speech and the violence that occurred in the aftermath of George Floyd protests,” Suarez said. “I think Mr. Reilly is giving a lot more influence and power than this young man really has. There are literally hundreds of people out there protesting and posting on Facebook and encouraging others.”
In Avery’s first court appearance, the U.S. Attorney’s Office told the judge that Avery was a flight risk because he had “no community ties of any kind to St. Louis.” The representative (not Reilly) alleged that Avery doesn’t live in St. Louis and he “traveled from out of state for the sole purpose” of inciting riots. In fact, Avery has lived in St. Louis his entire life and runs his own lawn service business, as well as volunteers for a group that searches for missing children.
On June 12, Cohen asked Reilly one last time why he should be considered a flight risk. This time, Reilly said it was because he received so many letters of support from the community, “which could also go towards resources for flight.”
The judge responded, “I have to say that that argument struck me as a little odd — that the fact he has support and connections here in St. Louis, and that’s why he poses a flight risk. Normally it’s the reverse.”
The judge asked Reilly if he had any evidence that these people are “wanting to spirit him out of St. Louis,” and he said, “I don’t.”
Avery has been at home on house arrest since Friday, June 12.
The federal charges against Avery have been condemned by the ACLU and a former chief justice of the Missouri Supreme Court.
“The local federal prosecutor’s effort to shackle and silence protest leader Michael Avery because of his ability to lead and inspire should concern everyone who cares about the ability to speak freely against government officials,” said Tony Rothert, legal director of ACLU-MO.
Former Missouri Supreme Court Chief Justice Mike Wolff said the federal prosecutor’s arguments in a June 12 detention hearing mirrored President Nixon’s controversial “preventative detention” tactics, often used against Black Panthers in the 1970s.
“I think you can curtail speech where you have an imminent danger,” Wolff said, “but the judge was appropriately skeptical whether this was really one of those cases.”
Renegade bike cops
Reilly’s fight to have the judge review her order focused largely on one controversial figure — Lt. Scott Boyher, who leads the city’s police bike patrol.
In the 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,” Rothert said. “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.”