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Thoughts on Ferguson, MO from criminal defense attorney Gary Gerson

Defense attorney Gary Gerson weighs in on Ferguson, MO

As a Pittsburgh criminal defense lawyer, situations in places like Ferguson, Missouri are difficult not to think about throughout the day. It’s hard to realize in my mind what many of those people are going through and how their rights are being infringed upon. It also makes me think about what laws are being broken by those with authority and what charges citizens are being brought up on that may be false. As you’re all probably already well familiar with the story, an unarmed teenager was shot six times, twice in the head, by a policeman for reasons of which we are still not entirely sure.

Criminal defense perspective

When an officer is involved in a shooting, there are three things generally happening within a day or so. First, an investigation is begun by the police department’s internal affairs division. Second, there can be a criminal investigation undertaken by the police department, as well as outside agencies. And finally, the victim or family of the victim may choose to file a civil suit against the officer, the police department, or both.

The legal process

An internal investigation is just that: an investigation completed internally, or within the department. Generally, the officer involved in the shooting is put on administrative leave and remains a paid employee while the investigation in ongoing. At the end of the internal investigation, there is usually one of two things that can happen. Either the officer is released from his or her position on the force, or the police department can conclude that the shooting is justifiable and there is no further internal action taken. The criminal investigation into the shooting can be done by the officer’s department or by some outside force. After the criminal investigation is complete, the investigators decide whether or not to send the case to the prosecuting attorney. There are, I believe, some major discrepencies when it comes to internal criminal investigation; the most obvious one is that there is a giant conflict of interests. I believe it is almost always beneficial to everyone involved to have a separate agency complete a criminal investigation. In Ferguson, MO, the FBI is completing the investigation. When the FBI is done with their inquiries, they will likely turn the case over to the prosecuting attorney in an effort to litigate upon whether or not the officer in question is criminally liable. Finally, there is the civil suit. Once the major investigations have been completed and the media packs up and goes home, the civil rights suit will begin to determine if the officer violated the victim’s civil rights. In police shooting cases, the lawsuit almost always names the officer and his or her department as co-defendants. What many people do not realize is that anytime a person is “handled” by a police officer–be it detained, shot, etc.–a legal “seizure” has occurred. And, thanks to our Fourth Amendment, every person is to be presumed free from any seizure or unlawful search. During a civil suit, it is up to the officer in question to come up with a plausible reason why force was necessary; and it is up to the victim or the victim’s family to prove otherwise.

Wait for all the facts

Now that we all have a chance to sit back and look at what has gone on and what is going on in Ferguson, Missouri and its surrounding neighborhoods, let’s not be too quick to judge either way. As a nation, our best course of action is to wait until all of the information is available and then watch as the legal process works things out. And remember, this isn’t about taking sides, as we so often do in America these days; it’s about seeking and finding the truth.

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