(UPDATED) In Ferguson, No Public Accountability for Missouri National Guard

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Missouri Gov. Jay Nixon (left) speaks with Brig. Gen. David Newman of the state's Air National Guard during a weather event last year. (Photo: Missouri National Guard/handout)
Missouri Gov. Jay Nixon (left) speaks with Brig. Gen. David Newman of the state’s Air National Guard during a weather event last year. (Photo: Missouri National Guard/handout)

Editor’s note: This story has been updated. Please see below original text.

Last Friday, prominent activist and Daily Kos contributor Shaun King offered some interesting — and frightening — insight as to what’s in store for the community of Ferguson, Mo., in the coming weeks.

Writing on his personal Twitter account, King said he had learned from a confidential source with ties to the Missouri National Guard that the group was preparing for “riots in Ferguson (and) St. Louis very soon.”

The impending civil disturbances appear to be tied to whether or not a grand jury decides to file charges against Darren Wilson, a white police officer who fatally shot unarmed black teenager Michael Brown Jr. in August. The incident triggered days of protests, the elements of which included instances of rioting, looting and vandalism.

The problem was exacerbated when Ferguson police officers confronted civil demonstrators while dressed in riot gear from head to toe. The response prompted Missouri’s governor to hand over command to the state’s highway patrol. Eventually, the Missouri National Guard was called in to restore order to the town.

Friday’s report that the state’s militia is preparing for a fresh wave of civil demonstrations prompted some activists to declare that the state is readying a “war” in Ferguson. Short of a statement from the Missouri National Guard or related officials, there’s no way to corroborate King’s report through officials channels — because the militia is legally protected from public oversight.

Most states have crafted an offshoot of the Freedom of Information Act, a federal statute that permits citizens to inspect and copy public records. The notion is that the inspection of public records establishes a level of transparency between government agencies and members of the public, ensuring the public keeps oversight over agencies that use their taxpayer money and holds officials accountable for wrongdoings.

Missouri is one of several states to have modeled an open records law off the Freedom of Information Act. Dubbed the Sunshine Law, Missouri contends that members of the public have a right to inspect documents produced by government offices — including law enforcement agencies — so long as the procurement of such records do not reasonably interfere with ongoing investigations or enforcement proceedings.

The Missouri National Guard, however, is not subject to the Sunshine Law. The agency has a blanket protection from the inspection of public records — and it’s been that way for nearly three decades.

In 1987, former state senator John Scott (D-St. Louis) crafted a bill that exempted the state militia from having to disclose public records pursuant to Sunshine Law requests. The bill received bipartisan support in Missouri’s House and Senate, including from then-senator Jay Nixon, who now serves as Missouri’s governor. Later that year, it was signed into law.

The provision made little waves until 2012 when the St. Louis Post-Dispatch reported that members of the state militia had engaged in looting following a destructive tornado that ripped through the city of Joplin that summer. The newspaper filed a Sunshine Law request seeking records on the National Guard members who were said to have stolen items from the homes of tornado victims. Their request was denied.

The paper wrote a scathing editorial blasting the provision shielding the Missouri National Guard from accountability. “When police officers or firefighters or any other taxpayer-funded public employees make mistakes, they must be accountable to the taxpayers,” the paper’s editorial board wrote.

Surprisingly, that opinion was backed by the very senator who pushed the bill through the state legislature 25 years prior.

“To be honest about it, I’d have a hard time supporting any government entity paid for by tax dollars being exempted from the open-meetings law,” Scott said. “I think everybody should be governed by it.”

Nixon, who has been making law-enforcement decisions as far as the situation in Ferguson goes, refused to take a position on the guard’s exemption in 2012. Two years later, he’s still not talking.

Officials in Ferguson have already been reluctant to release records and information made under the Sunshine Law — some reports suggest that officials have been gouging news organizations by demanding exorbitant research fees “deposits” that amount to thousands of dollars (the open records law says city officials must use the lowest-paid employee for research, and the law offers no such provision for deposits). Their actions have only added to the dissatisfaction of the community and its leaders, many of whom already feel that their public officials cannot be trusted. A blanket exemption for any state law enforcement agency, especially one that is reportedly gearing up to go to “war” with citizens pending a judicial outcome, will only add to that distrust.

TheBlot Magazine e-mailed the Missouri National Guard inquiring about King’s report. The agency did not return our request for comment by press time.

UPDATE, Oct. 7: After our article was published, Reuters reported that Missouri agencies were readying a plan for civil demonstrations following an unfavorable grand jury verdict. Though Reuters did not specifically mention the Missouri National Guard, the information in their report corroborated much of what King said on Twitter one day prior.

Matthew Keys is a contributing journalist for TheBlot Magazine

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