St. Louis Circuit Attorney Kim Gardner

A Missouri Supreme Court ruling issued on December 4 added clarity as to whether the St. Louis City Circuit Attorney’s office can summon police officers to be witnesses in prosecuting their cases and then investigate them for use of force.

The state’s highest court unanimously ruled that Circuit Attorney Kim Gardner’s office does have that authority and that 22nd Circuit Court Judge Timothy J. Boyer was wrong when he disqualified her from investigating a city officer for use of force earlier this year.

“[Gardner] holds one of the most powerful positions in our legal system, and [Boyer] cannot control the way [Gardner] chooses to exercise the broad, almost unfettered, discretion conferred upon her by statute,” the Missouri Supreme Court ruled.

The ruling stems from a case where a St. Louis police officer, referred to as A.F., filed a motion to disqualify the Circuit Attorney’s Office from investigating him for use of force. He argued that Gardner’s investigation created an “appearance of impropriety” because he was acting as a witness in one of the prosecutor’s cases against a man named Wendell Davis.

Davis was a passenger in a truck that A.F. pursued after learning the licenses plates belonged to a stolen vehicle. When the truck stopped and the two passengers fled on foot, Davis allegedly pulled a gun on the officer, so A.F. allegedly fired a shot into his back, paralyzing him, the court ruling states.

In a routine practice, Gardner initiated an investigation into the officer’s use of force against Davis. Before A.F.’s hearing, he filed a motion to disqualify the Circuit Attorney’s Office from investigating his actions.

Boyer sided with the officer, ruling that there was a “potential conflict of interest” in Gardner’s office investigating the same officer providing evidence as a witness. Gardner appealed, but the Court of Appeals denied her petition. She then went to the Supreme Court.

“I understand that the Supreme Court could have chosen not to rule on this case,” Gardner said in a statement. “I appreciate that they believed it was significant enough to take a unanimous stand against this unprecedented decision by the Circuit Court.”

Use-of-force investigations

The debate about the circuit attorney’s role in use-of-force investigations is not only happening among the courts.

In January, Alderman Brandon Bosley filed a bill to make the Circuit Attorney’s Office the lead investigator in use-of-force cases – using one percent of the police department’s annual budget, or about $1.6 million, to do it.

For many years, police reform advocates have been calling to take investigations into officer-involved shootings out of the police department.

“It is no longer acceptable for the police to investigate themselves,” Gardner said at a March 7 aldermanic committee hearing for the bill.

At the hearing, Gardner explained that some members of law enforcement are even afraid to participate in the current process for fear of retaliation, and community trust is at the heart of the issue. St. Louis is close to being number one in officer-involved cases nationwide, she said.

“This bill supports police,” she said. “This is not a one-sided bill. We need to sit down together, because what’s at stake is the whole criminal justice system.”

However, 6th Ward Alderman Jack Coatar questioned how she plans to handle conflicts of interests, seeing that her office works closely with the police department. Coatar, who previously served as assistant circuit attorney, asked why prosecutors wouldn’t clear officers if they find them credible enough to use them as witnesses.

“I will pose the same question to you in terms of the officer,” Gardner responded. “If they are telling the truth and they say X, Y, Z happened, then why are they worried about the officer-involved shooting case?”

They have the same rights against self-incrimination as any other suspect, Coatar said.

“Why would you open yourself up to cross examination if you haven’t been cleared with the agency you’re supposed to be working with and assisting?” he asked.

Gardner said that prosecutors in the investigative unit would only work on officer-involved shooting cases. So, one day they wouldn’t be working with officers on charging individuals with crimes and then the next day investigate officers for excessive force.

The bill died in committee, but Bosley said he plans to reintroduce a modified version of the bill.

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