Legal Experts Blast Public Investigation Of Michael Brown’s Stepdad For ‘Incitement’

CREDIT: AP Photo/Charlie Riedel

St. Louis County Police want to talk to Michael Brown's stepfather Louis Head (center) as part of a broader investigation into arson, vandalism and looting that followed the Nov. 24 grand jury announcement.

When the news broke that the grand jury in Ferguson would not indict Officer Darren Wilson for shooting and killing teenager Michael Brown, Brown’s stepfather Louis Head had an emotional, angry reaction that was caught on video by the New York Times. “Burn this motherf***** down. Burn this b**** down,” Head repeatedly yelled. All around him, hundreds of people had similar reactions, and as news of the decision spread, some demonstrators set fire to cars and local business.

The footage of Head’s outcry went viral, and conservative media outlets picked it up and began referencing it in interview with officials, pressing them on whether they would take action. Then, in an interview with Fox News’ Sean Hannity, Ferguson Police Chief Tom Jackson announced that his team was investigating whether or not to charge Head with inciting a riot.

In a statement released today, Head apologized, and explained: “I was so angry and full of raw emotions, as so many others were, and granted, I screamed out words that I shouldn’t have screamed in the heat of the moment.” He added, “I’ve lived in this community for a long time. The last thing I truly wanted was to see it go up in flames.”

Many legal experts, including Emeritus Professor of Law Vernellia Randall at the University of Dayton, are pointing out several problems with the case.

“I’m not sure the intent element can be met, mainly because his reaction was more of a spontaneous, emotional reaction that doesn’t come from him thinking out and planning to start a riot,” she told ThinkProgress. “Maybe if he went home and cooled down and came back and said the same thing, it would be different. Then there’s the causation problem. You would have to prove his words directly caused the riot.”

Under Missouri law, rioting itself is only a misdemeanor, not a felony. It would require police prove Head “knowingly assembled” with six or more other persons “and agreed with such persons to violate any of the criminal laws of this state or of the United States with force or violence.” As Michael Brown’s parents and others have pointed out, riots began long before the grand jury decision was announced.

Randall added that it’s inappropriate for law enforcement to publicly name anyone they’re investigating, especially in an environment of heightened tension between the community and the police.

“Like any criminal case, once you say you’re investigating someone, there’s an implication they did something wrong. That stigma is hard to get rid of, even if you’re never found guilty,” she said. “They haven’t released the names of other people, so they sort of are singling him out. The police could have said, ‘We don’t want to comment on any particular person, because we haven’t decided what to do.’ But they kind of added fuel to the whole idea that he should be indicted.”

Organizations on the ground, including the American Civil Liberties Union of Missouri, say besides the legal problems with such an investigation, it sends a bad message at a sensitive time.

“Putting scarce resources and efforts into an investigation of Michael Brown’s stepfather is a poor policy choice, and it takes time and attention away from fixing real issues the shooting brought forth, like the fact that if you’re African American you’re more likely to be stopped by police, searched and arrested,” said Jeffrey Mittman, the Executive Director of ACLU of Missouri. “Police have a responsibility to serve their community, and that includes focusing on the healing of the community.”

Mittman compared the announcement of this investigation to the police’s decision earlier this fall to release the video of Michael Brown allegedly shoplifting from a convenience store. Mittman said like that video, this investigation into incitement of a riot is a distraction from the deeper issues at hand. “To see that pattern repeated is incredibly disappointing,” he said.