The lawsuit St. Louis Circuit Attorney Kim Gardner filed in federal court on Monday certainly made headlines, but does it actually have a chance to succeed in court? Attorneys say that while the suit is an interesting one, seemingly without precedent, it’s not likely to get anywhere in court.
The necessary background.
Gardner, known as a progressive prosecutor and the first African American circuit attorney in St. Louis, filed a 32-page civil lawsuit in the U.S. District Court for Eastern District of Missouri against multiple defendants.
The defendants include the St. Louis Police Officers Association (SLPOA), its executive director and business manager Jeffrey Roorda, and attorney Gerard T. Carmody. Carmody is the special prosecutor who investigated William Don Tisaby, a former FBI agent Gardner hired to investigate Missouri’s former Republican Governor Eric Greitens.
Tisaby was hired by Gardner in 2018 to investigate allegations that, in 2015, Greitens took a compromising photo of a woman and then threatened to share that photo publicly if she exposed their affair. That was a year before Greitens was elected governor. Criminal charges against Greitens were eventually dropped, but the former GOP political heavyweight resigned the governorship in June 2018 amid the controversy.
Carmody investigated allegations that Tisaby lied during a March 2018 deposition ahead of Greitens’s criminal trial. According to the indictment, Tisaby lied under oath “about matters which could substantially affect, or did substantially affect, the course or outcome of the Greitens case.” Tisaby was indicted on six counts of perjury for allegedly lying during a deposition. He was also indicted on one count of tampering with physical evidence.
But Gardner isn’t just suing Carmody — she’s suing Carmody’s son Patrick Carmody and daughter Ryann Carmody. Both of them are attorneys and both of them, Gardner’s lawsuit said, have played a role in investigating her:
Patrick Carmody is an attorney and the son of Defendant Gerard T. Carmody. Patrick Carmody has assisted in the Special Prosecutor’s investigation of Gardner, including by personally participating in the execution of a search warrant at her office, Defendant Ryann Carmody is an attorney and the daughter of Defendant Gerard T. Carmody. Ryann Carmody has assisted in the Special Prosecutor’s investigation of Gardner, including by substantially participating in matters related to the search warrant that was executed at Gardner’s office.
Finally, Gardner sued Charles Lane, identified in the suit as a former Police Division Officer who “brought a civil action against Gardner intending to prevent her from protecting the interests all of the people of St. Louis.” Lane sued because Gardner hired private attorneys to defend her and her office in the above-described investigation. Per KMOV in May 2019:
Circuit Attorney Kim Gardner has hired attorneys from four private law firms to defend her office in a special grand jury investigation. That investigation is looking into whether or not a private investigator Gardner hired to work on the prosecution of now-former Governor Eric Greitens committed perjury.
Lane’s lawsuit alleges the contracts Gardner entered into with the private firms should be declared null and void. The suit says that any public fund payments would be unlawful.
The grand jury that indicted Tisaby disbanded in June but the investigation is ongoing. The indictment of Tisaby even said Gardner failed to correct Tisaby’s lies under oath during a March 2018 deposition, and that she made incorrect statements to defense lawyers and a judge. His trial is scheduled to begin at the end of March 2020.
“More than 65 attorneys have quit or been fired during Gardner’s tenure,” KSDK reported. There’s also the matter of re-election on the horizon for Gardner.
But Gardner has attempted to turn the tables.
The actual counts alleged.
Most of the lawsuit describes a long history of racial animus in the city and among police ranks (racist social media posts etc.), but it also speaks about threatening racist letters Gardner has received. Gardner also singled out comments Roorda made about her during an interview:
On September 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, Roorda threateningly called for Gardner’s removal from office “by force or by choice.”
The lawsuit alleges a broad and racist conspiracy to frustrate Gardner’s criminal justice reform agenda, including violations of the Ku Klux Klan Act of 1871 (42 U.S.C. § 1983). In one instance, Gardner cited the 2014 police shooting of Michael Brown in Ferguson, arguing that the police union response showed just how far it has “gone out of its way to support white officers accused of perpetrating acts of violence and excessive force against African American citizens.”
The lawsuit also noted, however, that the Obama administration Justice Department “concluded that the evidence did not support charging [Darren] Wilson with a violation of federal law.” Nonetheless, Gardner said, that Justice Department found “many officers appear to see some residents, especially those who live in Ferguson’s predominantly African American neighborhoods, less as constituents to be protected than as potential offenders and sources of revenue […] The result is a pattern of stops without reasonable suspicion and arrests without probable cause in violation of the Fourth Amendment; infringement on free expression, as well as retaliation for protected expression, in violation of the First Amendment; and excessive force in violation of the Fourth Amendment.”
Gardner claims all defendants have conspired to interfere with civil rights in violation of 42 U.S.C. § 1985. She claims they have “undertaken acts in furtherance of this conspiracy by obstructing her efforts to restore faith in the criminal justice system among communities of color and impose needed oversight over police violence, including without limitation by abusing legal process in an attempt to engineer her removal from office on false pretenses.”
Gardner claims the Carmodys have violated the Ku Klux Klan Act of 1871 and her Fourth Amendment rights by investigating her. Gardner claims the special prosecutor must have lied in order to get a search warrant:
Because no truthful information exists that could conceivably have caused the issuance of the search warrant Carmody obtained in February 2019, Gardner is informed and believes that Defendant Carmody made knowingly false representations to the issuing court to obtain unlawful and fraudulent authorization to conduct unreasonable searches and seizures of the Circuit Attorney’s Office and electronic files.
But for these knowingly false representations, the warrant would not have issued.
The third and final count alleges the Carmodys and the city violated the Ku Klux Klan Act of 1871 through abuse of process, “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.”
Gardner claims the investigation was only started to “obstruct her ability to provide equal justice under law to the people of the City of St. Louis, and engineer her removal from office.” In summary, she’s calling the investigation a witch hunt.
As NPR noted, the lawsuit named “just one instance in which Gardner was unable to achieve something because of the actions of the defendants.”
What attorneys are saying.
Law&Crime Network host, criminal defense attorney and former New Jersey prosecutor Bob Bianchi said that it’s clear Gardner has “failed to establish the crucial relationship with the police that all prosecutors need to be effective in fighting crime, but also making sure the police are working in a professional and constitutional manner.”
Bianchi said his own experience attempting to implement criminal justice reforms was no easy task, which is why it is so important to for a prosecutor to establish a working relationship with the police.
“I made many criminal justice and police practice reforms and perhaps some of the most robust internal affairs and police accountability changes seen to date. When a Prosecutor does this laudable task, they have to be nuanced in the approach, communicate with precision, and explain these reforms not only to protect the public from inappropriate police action, but to ensure officers are protected as well from being charged with offenses and either go to jail, or lose their jobs,” he told Law&Crime. “In other words, we messaged a ‘win, win’ reason to make the reforms. I found the police initially suspect, but with this messaging very shortly they came to see the importance and value of it. But again, it is crucial that it is not presented as if they are the bad people and that you are there to ruin their careers and lives.”
Bianchi said it is not a surprise, therefore, that there would be “distrust and resistance” to Gardner’s agenda. But he also believes Gardner has “opened Pandora’s Box” with a lawsuit he sees as “doomed to fail.”
“She is now under investigation, which is a rarity for prosecutors. Prosecutor Gardner of course argues that she is a criminal justice champion and that the ‘establishment’ is railroading her. Others suggest that they are amazed that she has been allowed to stay in office due to her incompetence and wrongdoing. Where those facts will land, we will find out,” Bianchi said. “But, I suspect Prosecutor Gardner’s lawsuit is not only doomed to fail from a factual and legal perspective, but that Prosecutor Gardner has opened Pandora’s Box.”
“Now that she had filed a lawsuit, she is subject to cross examination and probing that she otherwise would not be. You can expect that when they take her deposition it may very well uncover some things that she may otherwise not have wanted to be known publicly. If I were representing her, I would advise against her pursuing a civil lawsuit,” he added. “To file a lawsuit that is public and unlikely to achieve any measurable result, to me sounds like a public relations stunt for her political base, as opposed to good policy and effective management. This why again I call upon states to consider the use of governor appointed prosecutors (like I was) versus electing prosecutors. It greatly takes the politics out of the criminal justice system and leads to better reforms with the police.”
Chelsea Merta, a St. Louis-area attorney with quite a recent history, analyzed the lawsuit in a Twitter thread, noting that suit pleaded many facts but only a few pages on the counts alleged.
“What makes the Complaint interesting is that it takes 105 paragraphs (out of 122) & 28 pages (out of 32) to get to the actual counts, of which there are only 3. That’s a looot of facts plead,” she said. “With that many facts set forth […] I’d expect to see more counts or offenses alleged.”
What’s the prospect that the allegations of KKK Act violations would succeed in the Eighth Circuit (which includes the Eastern District of Missouri where this suit was filed)?
“[I]t’s important to remember ~how difficult~ the 8th Circuit is for 1983 cases,” Merta continued. “If you believe that Kim Gardner’s 1983 lawsuit against the City & SLPOA is going to go anywhere, do I have news for you. It’s very likely not. Chances of it being dismissed or disposed on summary judgment are high.”
So, what is Gardner doing?
Merta suggests that Gardner is filing the suit for “peri-judicial reasons.”
“What I mean by ‘peri-judicial’ is, most people file civil suits when they’ve been damaged, but there are other reasons to file – eg obtaining discovery, staying state court proceedings, public relations,” she said. “She is not the first attorney to file this kind of suit & won’t be the last.”
“What caught my eye in the 32-page suit, is that many of the allegations made are seemingly not well-connected to the actual counts,” she added. “To me, this demonstrates that this suit is a fact-finding mission to use the court system to compel production of evidence for other reasons.”
What the police union and the city are saying.
The St. Louis Police Officers Association said the suit “frivolous and without merit.” In a Monday press release, the SLPOA union said that Gardner’s suit was the “last act of a desperate woman.”
“This is a prosecutor who has declared war on crime victims and the police officers sworn to protect them. She’s turned murderers and other violent criminals loose to prey on St. Louis’s most vulnerable citizens and has time and time again, falsely accused police of wrongdoing,” the statement said. “The streets of this city have become ‘the Killing Fields’ as the direct result of Gardner’s actions and inaction.”
The statement did not stop there. It went so far as to say that Gardner was attacking police to deflect attention away from her own “possible criminal acts”:
The union believes this is a grand distraction meant to misdirect the attention that Gardner’s deposition is sure to generate. 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. This is a last-ditch, pathetic attempt to avoid answerability for her conduct and possible criminal acts.
Gardner claims it’s not about any of that.
“This is not about a single case or issue facing the city of St. Louis prosecutor. This is the fair administration of justice,” she told CBS This Morning on Tuesday.
St. Louis Mayor Lyda Krewson also said the lawsuit was “meritless.”
“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,” Krewson said in a statement.
Read the rest of the Gardner lawsuit below.
Kim Gardner lawsuit by Law&Crime on Scribd
[Image via St. Louis Post-Dispatch screengrab]
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