Should Michael Brown's stepfather be charged with inciting a riot? What about the rioters?

|The Volokh Conspiracy |

When the grand jury's decision not to charge the police officer who shot Michael Brown was announced, Michael Brown's stepfather, Louis Head, reacted angrily. "Burn this motherf***** down. Burn this b**** down," Head repeatedly yelled to a crowd. That action might theoretically meet the requirements for charging under Missouri's riot statute. But it would be sound exercise of prosecutorial discretion not to file charges against him … while aggressively pursuing charges against identified rioters and looters.

Yesterday Ferguson Police Chief Tom Jackson said that the Ferguson Police Department is involved in an investigation into whether Head incited a riot. St. Louis County will apparently make all final decisions about what to do Presumably what is under investigation is Head's statements quoted above. Of course, following those remarks, riots and looting broke out in Ferguson. Is Head guilty of a crime?

From what I can tell of Missouri law, the relevant statute, Mo. Rev. Stat. 574.0505, forbids rioting as follows:

1. A person commits the crime of rioting if he knowingly assembles with six or more other persons and agrees with such persons to violate any of the criminal laws of this state or of the United States with force or violence, and thereafter, while still so assembled, does violate any of said laws with force or violence. 2. Rioting is a class A misdemeanor.

If this is the proper statute (and I don't claim detailed familiarity with all of Missouri's criminal law), notice first that it forbids rioting, not inciting a riot. (Some other states have statutes forbidding inciting a riot, although the constitutionality of at least some of these statutes is debatable.) To be guilty of rioting, Head would have to "agree" with six (or more) persons to violate specific laws - that is, agree to participate in a riot. It is not immediately clear what kind of agreement Head had with those who were listening to his remarks. Presumably prosecutors could argue that there was an implicit agreement to violate criminal laws, perhaps arson or other statutes, although this is not free from doubt.

More seriously, it is not at all clear how prosecutors would show that Head violated specific laws "with force or violence." According to a Missouri criminal law treatise, the Missouri cases "on the crime of rioting are mostly of nineteenth century vintage, and generally hold that more than mere presence is required for a conviction for rioting: the prosecution must prove that the defendant was part of the assembly and that he or other members of the assembly did in fact commit an illegal act with force and violence." Missouri Criminal Law section 43.1 (2d ed. current through June 2014, Robert H. Dieker ed.) There is apparently an enhancement for rioting if the conduct was motivated by race, sex, religion or other "hate crime" criteria.

Prosecutors will have a quite difficult time making out a viable case of rioting against Head because of his lack of participation in looting and other specific criminal behavior. No doubt, riots followed Head's remarks, although showing causality would be challenging. But Head did not participate in any violent acts, which appears to be a specified element of the offense.

In any event, even if prosecutors could find a way to lodge charges against Head for rioting (or some other crime, such as conspiracy), to my mind prosecutors would be well advised to devote attention elsewhere, as a matter of both policy and justice.

With regard to what is wise prosecutorial policy, the St. Louis County Prosecuting Attorney's Office will have more than enough business in the foreseeable future simply handling the prosecution of rioters who were apprehended. More than 100 persons have been arrested on various charges after the grand jury's decision, and many of these persons have apparently obtained sophisticated legal representation. If persons have been arrested in the act of looting, they have committed at least the felony of second degree burglary - and perhaps more serious crimes if they broke into an occupied building or if they actually set fire to a structure. In contrast, the riot statute provides that Head's maximum culpability would be for, at most, a misdemeanor offense. Prosecutors no doubt have bigger fish to fry.

With regard to justice, criminal prosecutions are typically launched for retributive purposes - to properly punish those who have deliberately caused harm - or for utilitarian purposes - to effectively deter future illegal behavior. Neither would be served by indicting Head.

Prosecuting Head will not further retribution. His comments were made out of pure frustration immediately after he heard that someone would not be prosecuted who was, in his mind, the murderer of his stepson. It is hard to judge someone in that situation, and even harder to conclude that they committed a crime when verbalizing that frustration. Even if Head's frustration does not rise to the level of legally recognized excuse under Missouri law (i.e., diminished capacity), it does provide sound reason for believing that the power of the Missouri's criminal law need not be brought to bear against him.

Likewise, prosecuting Head will not further deterrence. There is no reason to believe that he will ever be in such a unique situation again. And there is no reason to think that other fathers and stepfathers in similar situations need to be deterred, as the dignified comments of Michael Brown, Sr., throughout the proceedings powerfully demonstrate.

Anjana Patel cleans up the damage from Monday's riots at her store, Ferguson Market and Liquor, Wednesday, Nov. 26, 2014, in Ferguson, Mo. (AP Photo/David Goldman)

The people who should be prosecuted in the wake of the looting in Ferguson are the looters. We might reasonably expect a stepfather to react angrily when the criminal justice system reaches a disappointing result. What we don't reasonably expect - and should combat with our criminal law - is for persons to deliberately use that reaction as a cloak for theft, arson, and violence. Business owners in Ferguson did not have windows shattered and property stolen by Louis Head - these things were done by opportunistic criminals. Looters should be prosecuted aggressively. Their sentence should be, before anything else, the fullest possible restitution to property owners and other crime victims harmed during the riots. Prosecutors should - and I believe will - focus on these goals, not an attack on a grieving stepfather.

Update: Louis Head has apologized for his comments, as the Post is now reporting in this story. "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. It was wrong, and I humbly apologize to all of those who read my pain and anger as a true desire for what I want for our community."

An apology should not automatically eliminate the possibility of a criminal charge, particularly where (as here) is comes only after the fact of a criminal investigation has been made known to the person apologizing. But still it is another small factor cutting against the wisdom of devoting prosecutorial resources here.

Further update: As one of the commenters (pvine) points out, the City of Ferguson has an ordinance forbidding use of language to incite violence. Ferguson Ordinance 29-85 provides: "It shall be unlawful for any person to use speech or writing in such a way that has a direct tendency to incite immediate acts of violence by the person or group being addressed, on any street, alley, place or business, public building or other place in the city." Unlike the Missouri statute I discuss in my original post, this ordinance does raise potential First Amendment issues. Without working through a complete analysis, the ordinance seems designed to comply with the holding of the Supreme Court's decision in Brandenburg v. Ohio. But it isn't immediately clear to me that it succeeds, as my understanding of Bradenburg is that to convict for a crime such as this the government must show a defendant had some subjective intent to incite violence - a mental state component that appears to be missing from the text of the ordinance (although it may be read into the provision in other ways). Moreover, the ordinance is obviously a minor offense, listed next to such crimes as "loitering," "begging," and "curfew violation." One commenter (Thors Hammer) reports it carries a maximum penalty of three months in jail.

I don't understand the details of who enforces Ferguson City ordinances. But if it is by city prosecutors, my sense is that they too would have - and should have - more immediate concerns then testing the constitutionality and construction of this provision by charging Head.