RVA Mag spoke with Richmond Commonwealth’s Attorney Colette McEachin about the ongoing protests in the city, and the legal ramifications of what’s happened so far, for both protesters and for the Richmond Police.
Richmond Commonwealth’s Attorney Colette McEachin has been a focal point of local activists’ demands over the past month. McEachin, Richmond’s lead prosecutor, is ultimately responsible for deciding whether to proceed with criminal investigations and charges against protesters. Her purview includes the power to investigate charges of police brutality, as well as allegations that the Richmond Police Department’s (RPD) declarations of unlawful assembly in May and June have themselves been unlawful. In an active lawsuit, the ACLU of Virginia has raised doubts and concerns about the legality of various RPD activities, including these declarations and subsequent uses of chemical weapons, rubber bullets, and flash grenades.
We recently had the opportunity to sit down with McEachin to discuss all of these things. We also asked about her ongoing consideration of whether to re-open the case of Marcus-David Peters, an unarmed Black man who was shot and killed in 2018 by a Richmond Police officer while suffering a mental health breakdown.
*This interview has been edited for length and clarity.
RVA Mag: Good afternoon, Madame Commonwealth’s Attorney, and thank you for sitting down with us. As you know, at Mayor Stoney’s request, Governor Northam extended Richmond’s state of emergency through the end of July. Do you agree that Richmond is in a state of emergency?
Colette McEachin: Yes.
RVA Mag: How would you define the emergency, and who do you think is responsible for the emergency?
CM: We are all on some level responsible for the emergency. It’s one city, and we are all dependent on each other, right? If you go back to that first pretty horrible weekend or two at the end of May and beginning of June, I think that shocked and devastated everyone in Richmond. Anyone can look at what happened to George Floyd or any of the martyrs to police violence over the past decades and understand the anger and frustration that had built. But I don’t think anyone, including the police department, or any of the systems in the city, were ready for what happened from about May 30 through the past few weeks.
RVA Mag: I’d like to come back to the concept of “martyrs to police violence,” but returning to this “state of emergency,” I want to discuss accountability, and as a case study, the night when demonstrators in Richmond attempted to occupy City Hall. New Yorkers were able to occupy New York’s City Hall without police intervention. Norfolk demonstrators were allowed to occupy Norfolk City Hall recently. Have you submitted guidelines to City Hall and the police regarding acceptable protest actions that you will not prosecute?
CM: No I haven’t. It is pretty clear under the laws and statutes of Virginia what is acceptable peaceful protest and what is not. I don’t have authority over the mayor. I don’t have authority over the RPD — they respond to their chief, who is selected by the mayor. We certainly talk with other agencies, including the police department, about charging decisions, what the impact of their actions will be on whether or not a charge is able to go forward. But I don’t think it is appropriate for my agency to say to another agency: “You need to do your job this way.”
RVA Mag: Given that you are toward the end of the law enforcement process, have you had conversations with Chief Gerald Smith about how he is going to treat protests moving forward?
CM: No. I have been in conversation with him, but I have not specifically asked him that question. [We have discussed] my perspective about what happened the previous four weeks, and where my office is going regarding the multiple complaints made about police behavior and protester behavior. I will say he was very receptive and it was a lot of listening on his part.
RVA Mag: What’s the timeline for review of charges against protesters?
CM: Other than the horrible circumstance that happened from May 31 to June 1, when the first 233 curfew violators were arrested and brought down to the Richmond Justice Center…
RVA Mag: I’m sorry to interrupt but that happened at 7:30 pm, 30 minutes before curfew.
CM: Yes, it had nothing to do with the curfew. Let me clarify. For those who think the police tear-gassed people at the Lee Monument solely because there was a curfew violation (when it couldn’t have been, because it was only 7:30 pm), that was not the reason. The investigation is still ongoing, but I will say that the police were not jumping ahead 30 minutes.
RVA Mag: How far along are you in reviewing charges against protesters?
CM: There’s not going to be a general review. It’s a very individualized review, which is what I would think people would want if they were charged. You wouldn’t want assumptions made about your case, like, “Well, this happened on this date. I’m going to dismiss all the charges that happened on this date,” or “I personally believe in why this person was doing something, so because they conform to my personal belief I’m going to dismiss the charge.”
RVA Mag: Do you think you are likely to drop all charges against protesters?
CM: Given what I know now, I think there will be some charges left at the end of my review.
RVA Mag: America is in a tense moment. We’re in a nationwide conversation about race and police brutality. Here in Richmond, no one has died (at a protest).
CM: Thank God.
[Update: An earlier version of this article stated there were no critical injuries during protests. In fact, there are several reports of serious injuries suffered at the hands of police, including a man with a pre-existing condition who has stated that he was denied his heart medication while in detention (he subsequently lost consciousness, and was hospitalized at MCV), as well a man who was shot in the eye with a rubber bullet at close range. RVA Mag has received confirmation of both of these injuries].
RVA Mag: Thank God. Many of these protesters are in college or just graduated. They’re some of the city’s bright young minds and have been studying how to effect social progress and racial justice. They are not “out-of-towners,” as politicians were quick to claim early on. Given the context, are you prepared to enable the court to do long-term legal damage to a group of young local protesters, to permanently taint someone’s record over, for example, a thrown water bottle or a rock thrown at riot police in the heat of an escalating moment?
CM: I know people don’t want to hear this, because people want a quick yes or no, right or wrong, black or white, but honestly, it really depends on each situation.
RVA Mag: Let me ask more specifically: I know there was a young Black female protester who was detained and charged with inciting a riot and assaulting an officer. My understanding is she is alleged to have thrown a water bottle. Do you feel that prosecuting her, and her subsequently serving a prison sentence, and having felonies for assault and incitement — given all the societal context — would be an appropriate use of the judicial system?
CM: I don’t know that she will be convicted of a felony. I don’t know this person. Here’s the deal: You are assuming that if your heart is in the right place, and you feel you are doing it for a good reason, you should be able to throw things at people.
RVA Mag: I wouldn’t say I’m assuming that. What I’m asking is, given this nationwide moment of upheaval and potential structural change, and given that the entire nation’s nerves are inflamed, do you think allegedly throwing a water bottle toward a riot officer should result in a permanent felony record and potential prison time?
CM: It depends on the facts of the case.
RVA Mag: You indicated in a tweet that you would investigate all complaints against cops. Are you?
CM: I’m investigating all the ones I’m aware of.
RVA Mag: Councilman Mike Jones has asserted that he feels the RPD is going out of its way to distort the truth. The ACLU asserted the only legal use of an unlawful assembly declaration is the imminent threat of violence. Is there evidence that situations have been dangerous enough to justify declarations of unlawful assemblies, use of chemical weapons, mass arrests, and felony charges for demonstrators?
RVA Mag: Can you give me a specific example?
CM: No, because it’s a pending investigation.
RVA Mag: Do you assume what the police have told you is true?
CM: I am a lawyer and mother of three daughters. So I don’t assume that anybody is telling me the truth all the time.
RVA Mag: Is your office specifically investigating the legality of the declarations of unlawful assembly?
CM: Yes, in the sense that, if it turns out that the elements necessary to prove that there was an unlawful assembly don’t exist, then we can’t go forward on a charge.
RVA Mag: Councilman Jones has called for an independent investigation into police brutality during protests. We’ve seen a situation where nine officers OC-sprayed a woman walking by them. We’ve seen a police office spitting twice on a flex-cuffed protester who was arrested. Have you seen those videos?
CM: I have.
RVA Mag: If either an external investigator retained by the city or the current ACLU lawsuit concludes that beginning in late May, there were several instances where police prematurely declared unlawful assembly and used excessive force, would you hold the police accountable in the same way you are holding protesters accountable?
RVA Mag: Who do you consider most legally responsible for holding RPD accountable?
CM: The mayor.
RVA Mag: Are you confident that the RPD is effective in holding its officers accountable for disciplinary excesses?
CM: I don’t know.
RVA Mag: Is the mayor in discussions with your office about holding RPD accountable? You said he is legally responsible, but he is not a prosecutor.
CM: We have spoken about a civilian review board as an entity to hold police responsible. That’s about as far as it has gone.
RVA Mag: Would you like the civilian review board to have subpoena power?
CM: I don’t know, because I don’t know what the CRB would look like and what it would do. Are they volunteers? Are they paid staff on someone’s payroll? I would want to see how it is constructed, and whether it’s an entity that should have subpoena power. There are investigative agencies that don’t have subpoena power and get things done.
[Editor’s note: after our conversation the Mayor announced a “Task Force to Reimagine Public Safety” and Ms. McEachin was named as a member]
RVA Mag: Currently, are police investigations and prosecutions equal in priority to protester investigations and prosecutions?
CM: They are equally important.
RVA Mag: The Washington Post published an article last week saying that journalists are reviewing their policies in using information from police press releases because they have found these releases inaccurate. How are you going to confirm that police accounts are true and accurate?
CM: My office pays no attention at all to police press releases.
RVA Mag: Do you give the same credibility to protester accounts of incidents as you do to police accounts?
CM: Yes. As long as they’re backed up with evidence.
RVA Mag: Earlier in this interview you called George Floyd a martyr of police violence. Do you consider Marcus-David Peters a martyr?
CM: He certainly died violently at the hands of a police officer.
RVA Mag: But you called George Floyd a martyr. Is Marcus-David Peters a martyr?
CM: I will review all the evidence that led my predecessor to release his report about what happened, and see what determination I can come to. That’s what I’ve told [Marcus-David Peters’] sister personally, and that’s what I will do.
RVA Mag: We’ve seen Elijah McClain’s case reopened. We’ve seen Breonna Taylor’s case reopened. Richmond City Councilman Mike Jones told RVA Mag recently that he made mistakes in 2018 with Marcus-David’s killing. He said “As a Black man on council, I should have been more vocal.” He believes the case should be reopened, as do a large number of people in the city. Are you considering reopening Marcus-David Peters’ case?
CM: I am going to review his case.
RVA Mag: How far along are you in that review?
CM: I just started [within the past week]. We have all the investigations, of course, that we’re reviewing regarding the protests.
RVA Mag: Is that your main priority right now?
CM: No, my main priority is finishing the investigations relating to [the protests].
RVA Mag: To a non-prosecutor such as myself, it seems there are many ways to handle a situation like the one that led to Marcus-David’s death without killing a man in crisis. Where’s the gap between what I’m seeing in the video and what a prosecutor sees?
CM: I would love to talk with you about this again after my review. You wouldn’t want me to talk about your case in public. If you were charged with rape, you wouldn’t want me to say “You know, I haven’t done my background, looked at the research, I haven’t done my legal analysis… but you know, just given what I’ve seen on social media about David, I feel like this…”
RVA Mag: What are the steps for you at this point?
CM: I will get the case file and start reading through every piece of paper. If I feel as though there is someone or something that could have provided more helpful information that was not in that file, I will try to get that. I’m going to approach this the way I would approach any serious felony case. I gather as much actual information as possible, apply those facts to the law, and decide whether or not a criminal offense [occurred], meaning there was a mens rea and there was a bad act. And then I’ll make a decision. So it’s not so easy.
RVA Mag: From where I’m sitting, this is why people talk about defunding the police. It feels like, other than an obvious case like George Floyd, there are no cases where a prosecutor and jury are comfortable determining mens rea. How can we ever get to a point where we’re holding police accountable if the legal threshold is we have to know that they have “bad thoughts” in their minds? It feels like this type of framing is effectively a license to kill with a gun, because a gun killing is fairly instant, and it’s impossible to say what’s in most people’s minds.
CM: There are degrees of homicide. Capital murder, first degree murder, second, voluntary manslaughter, involuntary manslaughter. All of those require different elements to be proven by the Commonwealth. Since we can’t read the person’s mind, the charge is based on their statements, the surrounding facts, and their actions. All of that goes into the decision about whether that person intended, maliciously or criminally, to kill the other person without reason or justification.
RVA Mag: Is it reckless for a cop, with a weapon in each hand, to confront someone who is naked, unarmed, and making snow angels on the side of the highway?
CM: I’m going to say I don’t know because at this point, I have not reviewed the entire case file, what the officer’s training was, and what the police protocols were regarding what his intervention should be with someone in crisis.
RVA Mag: Do you think if his training suggested that this was an appropriate handling, that he would be absolved of recklessness?
CM: I think that’s something you have to take into account, if your training is “do this in this situation.”
RVA Mag: Then who is held to account? Would you hold the training guidelines to account, and would you prosecute the person who formulated those guidelines? The buck has to stop somewhere.
CM: Exactly. Honestly, I don’t know at this point.
RVA Mag: Your husband, US Congressman Donald McEachin (D-VA) has co-sponsored a police reform bill that would revoke qualified immunity for police. Do you support that revocation?
CM: I don’t know that I’ve made up my mind about that.
RVA Mag: Do you support the full legalization of marijuana in Virginia?
CM: Yes. That’s going to happen in the next five years, depending on the General Assembly.
RVA Mag: Do you support the decriminalization of drugs other than marijuana?
CM: What other drugs?
RVA Mag: All of them. Decriminalization meaning handling these issues as mental health issues, similar to any other type of illness. Given that so much incarceration of Black people in America is based on drug law enforcement, do you support decriminalizing drugs?
CM: No. Not for controlled substances, no.
RVA Mag: Madame Commonwealth’s Attorney, we know it is an extraordinarily busy week for you. Thank you for taking the time to sit with us.
CM: Thank you.
Top Photo via Commonwealth’s Attorney Colette McEachin/Facebook