Updated at 1/14/19 at 10:58 a.m. to add response from City spokesman.
Circuit Attorney Kimberly Gardner has filed a federal lawsuit through the Ku Klux Klan Act, alleging a civil rights conspiracy at the hands of a lengthy list of entities: the City of St. Louis, the St. Louis Police Officers Association (SLPOA), the police union’s spokesman Jeffrey Roorda, retired police officer Charles Lane, Special Prosecutor Gerard Carmody, and his children and employees Patrick Carmody and Ryann Carmody.
Gardner alleges that her attempts to address St. Louis’ long history of racial inequality and prejudice in the criminal justice system have been met with a “broad campaign of collusive conduct” to get her out of office before she can implement her progressive agenda. This allegedly includes the “unprecedented appointment of a white, ethically-conflicted special prosecutor to investigate the activities of Gardner’s office and a patently overbroad and unconstitutional ransacking of the office’s electronic files.”
A section of the Ku Klux Klan Act specifically allows for federal judicial enforcement of the Fourteenth Amendment to “curb conspiracies of white citizens who sought to interfere with state authorities’ efforts to expand racial justice and equality in the former Confederacy,” the lawsuit states.
“The Ku Klux Klan Act was adopted to address precisely this scenario: a racially motivated conspiracy to deny the civil rights of racial minorities by obstructing a government official’s efforts to ensure equal justice under law for all,” it states. “The stakes are high. This case cries out for federal enforcement.”
The 33-page lawsuit covers a lot of ground, from police bias to the William Tisaby case —much of which she wasn’t able to discuss because of the court’s gag order.
“This is a lawsuit that is based on the fact that Circuit Attorney Kim Gardner wants to improve the criminal justice system and ensure that it is fair for all of St. Louis, regardless of race,” said Gardner’s attorney Roy Austin. “While Circuit Attorney Gardner being the first African-American circuit attorney is relevant, it is not a necessary fact. If any elected circuit attorney were to be unconstitutionally interfered with in the way Circuit Attorney Gardner has been, the same lawsuit would be proper.”
According to the mayor’s spokesman, “The City Of St. Louis vehemently denies what it considers to be meritless allegations levied against it by Circuit Attorney Kim Gardner. The City fully expects to be vindicated once this case is adjudicated in a court of law.”
Roorda issued a press release on behalf of the police union calling the lawsuit, “the last act of a desperate woman” and that Gardner has “declared war on crime victims and the police officers sworn to protect them.”
In fact, the lawsuit begins with the SLPOA and Roorda.
One of the centerpieces of Gardner’s plan to achieve racial justice was to institute a protocol for independent investigations of officer-involved shootings, the lawsuit states.
“Police control of officer-involved shooting investigations are a recognized factor in the under-prosecution of police violence,” it states. “Police officers are often reluctant to testify against fellow officers, or even provide investigators with any evidence, leading to what is known as ‘the blue wall of silence.’ Officers who do cooperate with investigators risk alienation or retaliation.”
The police union allegedly put pressure on St. Louis aldermen to vote down a bill that would allow her office to implement an independent department to look at officer-involved shootings, it states. It would have replaced the police department’s “overwhelmingly white” Force Investigative Unit. Gardner alleges that Roorda and the police union threatened to reduce protection for aldermen if they supported Gardner’s proposal.
As a backdrop, the lawsuit provides data on racial bias in vehicle stops and arrests, as well as the Plain View Project’s research on police officers’ racist social media posts.
It alleges that Roorda was aware of these racist and offensive posts, and neither SLPOA nor the St. Louis Metropolitan Police Department allegedly took any action against the vast majority of the members or officers who have made racist or offensive posts.
It considers former city officer Randy Hays’ plea agreement, where he admits that he and other officers beat undercover black cop Luther Hall in September 2017, not because they suspected criminal activity but because they thought he was a protestor.
Then when Gardner’s office charged city officers William Olsten and Joseph Schmitt in January 2019 with first-degree assault and armed criminal action for shooting a man at a bar, Roorda called Gardner a “criminal,” it states.
On Sept. 9, 2019 during a radio interview, Roorda said of Gardner, “This woman needs to go, she’s a menace to society.” In the same interview, the lawsuit states that Roorda threateningly called for Gardner’s removal from office, “by force or by choice.”
One-third of the lawsuit focuses on the case of former governor Eric Greitens in early 2018.
The news broke that Greitens had been accused of taking illicit photographs of a sexual partner against her will, and Gardner’s office opened an investigation on Jan. 11, 2018, the lawsuit states. That time period was right when the resistance to Gardner’s agenda of reform and police accountability had “reached a fever pitch,” it states.
After the police department, FBI and U.S. Attorney allegedly refused to provide investigative support, Gardner hired former FBI agent William Don Tisaby, an African-American former FBI agent, U.S. Air Force veteran and private investigator, to assist in the investigation.
On March 19, 2018, Greitens’s counsel deposed Tisaby about his interview of Greitens’s alleged victim. Two months later, Greitens’ team announced they would be filing a police report accusing Tisaby of committing perjury during his deposition. Police opened an investigation into the Tisaby allegations that same day.
The lawsuit explains that Gardner did not receive the same concern or reaction time from the police department, even though she was facing serious threats.
Around this time, Gardner began receiving racist threatening letters, calling her the N-word and demanding that she resign or “something will be done about you,” it states. Gardner reported these letters to the police, the lawsuit states, but the department allegedly did not investigate the threats, even though at least one of the letters had a name and return address on it.
Police also waited months to open an investigation into threats made by Greitens’ attorneys that they would “ruin” her if she didn’t drop the case, it states.
On June 7, 2018, the police department, through the City Counselor’s Office, formally asked the Circuit Court for an order appointing “an impartial” Special Prosecutor to investigate allegations of perjury against Tisaby. Circuit Judge Michael Mullen appointed Gerard Carmody.
“Carmody’s appointment was particularly unusual because his practice was focused almost entirely on commercial real estate and civil litigation,” it states, and he was a private attorney.
Mullen did not look into Carmody’s potential conflicts of interest. Had he done so, the lawsuit states that it would have revealed: Carmody and Greitens’ attorney Ed Dowd are lifelong friends going back to their days graduating in the same class of 1967 and playing on the same sports teams at Chaminade College Preparatory School in St. Louis, from which Mullen also graduated.
Ryann Carmody allegedly acknowledged the closeness between her family and Dowd and how it could be seen as a conflict with respect to Dowd’s representation of Greitens, in a text message to a Circuit Attorney’s Office employee.
“The unfairness of Carmody’s close relationship with Dowd goes beyond the fact that the special prosecutor’s very close friend was essentially the complainant in the very matter under investigation,” it states. “As the Police Division knew at the time, members of the Dowd Bennett law firm had told Gardner in March 2018 that they would ‘ruin’ her, ‘personally and professionally,’ unless she dismissed the charges against Greitens. They repeated their threats in April 2018. This made the appointment of Dowd’s close friend and former law partner wildly unfair.”
A special prosecutor — “yet another private lawyer with a close relationship to Dowd’s law firm” — looked into the threats that Greitens’ attorneys allegedly made against Gardner and declined to pursue charges, it states.
According to the union’s response to the lawsuit, the union believes it is a “grand distraction meant to misdirect the attention” from Gardner’s deposition in the Tisaby case this week.
“The union believes that a thorough investigation will show that Gardner suborned perjury in the Tisaby case and that she also suborned perjury in the Bomber O’Brien’s case that was recently dismissed by a St. Louis judge in a scathing rebuke of Gardner and her office,” the union statement reads. The Bomber O’Brien case refers to the charges Gardner brought against officers Olsten and Schmitt.
Abuse of power
The lawsuit alleges that Gerard Carmody abused his authority as special prosecutor. On January 24, 2019, Carmody issued a first search warrant to the Circuit Attorney’s Office for all of Tisaby’s correspondence, and Gardner’s team provided them on February 4, 2019. Less than three weeks later, Carmody sought a second search warrant, “which had the effect of expanding the universe of requested documents far into the past, covering many open police investigations but without any conceivable tie to Tisaby or Greitens,” it states.
The second search warrant, by its terms, allowed any “law enforcement personnel, or other individuals assisting law enforcement personnel” to execute the warrant. “Such expansive language means that Carmody could share what was found with anyone ‘assisting’ the effort, regardless of whether such person has been vetted for conflict of interest, safety, security, and privacy concerns, and regardless of whether that person has been duly appointed as part of the Special Prosecutor’s investigation,” it states.
It is unclear who requested the second search warrant, it states, because both Carmody and the police department pointed fingers at each other as being responsible.
On April 29, 2019, prior to receiving Judge Mullen’s decision about the constitutionality of the search warrant, about 10 to 15 police officers entered the Circuit Attorney’s Office to execute the search warrant.
“Among other things, they threatened to kick in the door to the IT room, forced a CAO employee to provide passwords to the CAO’s entire computer system, videotaped numerous other passwords, and physically took the server containing every email for every employee of the CAO, including the most obviously privileged emails—emails between the Circuit Attorney and her outside counsel for the investigation being done by Carmody,” it alleges.
Contrary to the law prohibiting prosecutors from being present for searches, Ryann Carmody and Patrick Carmody were present at times during execution of the warrant, it alleges.
As of the date on which Carmody and the police took possession, custody, or control of all the information on the servers of the Circuit Attorney’s Office, Gardner’s team was investigating approximately 40 cases of alleged police misconduct, including approximately 25 incidents in which people in the City of St. Louis claim either to have been shot by police officers or to have been subjected to some other kind of excessive force, it states.
“The CAO’s investigative files therefore contain highly sensitive information, such as the health and financial information of witnesses, subjects, and targets of grand jury investigations,” it states.
This information is believed to remain in the possession, custody, and control of Carmody and the police department, it states. Ryann Carmody allegedly told the Circuit Attorney’s Office that Carmody did not need the server anymore because he had “mirrored” it.
The lawsuit accuses the Carmodys of abuse of power, “by instituting a baseless criminal investigation of Gardner, groundlessly seeking and obtaining the appointment of a Special Prosecutor, and searching and seizing the files of the Circuit Attorney without probable cause.”
It also accuses the Carmodys of making “false representations to the court to obtain unlawful and fraudulent authorization to conduct unreasonable searches and seizures of the Circuit Attorney’s Office and electronic files.”
Austin said that overall what Gardner is saying is: enough is enough.
“The purpose has always been to interfere with her ability to bring reform,” Austin said, regarding continued probes into the Tisaby case, “but we are now long past the decision to bring criminal charges and the continuation of the open investigation is solely to prevent her from doing her job.”
Responses from those accused in this suit will continue to be reported when and if received.