What can be done about CLERB’s toothless condition?

This is the third part of a series on CLERB.

Our CLERB archive addresses the problem that CLERB has not been posting their minutes and documents on-line.   We created this partial archive to redress this problem.   The lack of an archive makes CLERB’s transparency objective hard to achieve.   Not being able to administer this essential function is also part of CLERB’s issues.  In the two days since we published this piece, CLERB has published some letters and also corrected an indexing problem on the City site.

Our CLERB Prequel is a narrative of how CLERB got to be the way it is.   It takes the story from Paul Garner’s arrest in 2013 through the most recent political change in summer of 2016.

This piece will refer to these sources as ARCHIVE with date or PREQUEL with date.   Both are in date order.

In this post, the intention is to show that CLERB was deliberately engineered to be toothless, and how it was done.   Identification of the faulty engineering suggests ways to fix CLERB.   We create a list of the changes that CLERB members have asked for and show why these changes are necessary.

The Groups in Play

The police department actors were

Toney Armstrong, MPD Director in 2015, when the matter came to Council.  Armstrong (PREQUEL 4/21/2015) and Mike Williams, Memphis Police Association (MPA) President are quoted in the Memphis Flyer as: “… Both Director Toney Armstrong and Memphis Police Association President Mike Williams took issue with the idea giving the board subpoena power, claiming that it could impact the officers’ Fifth Amendment rights …”.  Toney Armstrong later lied (PREQUEL 8/2/2016) saying “My support for CLERB has not changed.” Armstrong is quoted by Kemp Conrad as the source of an email saying that homicides will increase 20% if the ordinance is passed. (PREQUEL 8/4/2015).   Homicides did not increase 20% after CLERB.

MPA also said (PREQUEL 7/7/2015) that there were already enough controls in place at MPD.

Current Director Mike Rallings, who has stonewalled all recommendations of CLERB (ARCHIVE 5/10/2018) as per this letter from CLERB to Mayor Strickland.

The 2015 City Council group opposed to the revitalization of CLERB included:

• Bill Boyd, who proposed an amendment to reduce the CLERB budget by half (PREQUEL 6/16/2015) and voted against the CLERB budget.
• Kemp Conrad also voted against the CLERB budget (PREQUEL 6/16/2015). He egged Berlin Boyd to ask for a November rather than an early resumption of the CLERB ordinance (PREQUEL 8/4/2015).  He also made vicious personal attacks on Paul Garner and the pro-CLERB lobby from the council dais.  (PREQUEL 8/4/2015).  He tried fear mongering, quoting an email from MPD Director Toney Armstrong saying that homicides will increase 20% if the ordinance is passed. (PREQUEL 8/4/2015). Conrad also voted against the final CLERB ordinance (PREQUEL 11/3/2015)
• Jim Strickland, on the basis of an Allan Wade opinion, produced a last minute amendment on the third reading of the CLERB ordinance, removing CLERB’s subpoena powers. (PREQUEL 7/7/2015).  Last minute amendments are often used to derail motions in Council.
• Berlin Boyd (PREQUEL 8/4/2015) asked for a four month delay in voting for the CLERB ordinance
• Reid Hedgepeth also voted both to delay CLERB (PREQUEL 8/4/2015) and (PREQUEL 11/3/2015).
• Also voting to delay CLERB (PREQUEL 8/4/2015): Bill Morrison and Joe Brown.

The 2016 City Council group who altered CLERB’s subpoena powers include the group we know as the Caissa Seven:  Kemp Conrad, Reid Hedgepeth, Berlin Boyd, Bill Morrison and newcomers Worth Morgan, Philip Spinosa and Frank Colvett.   This group has voted as a bloc on all police issues except for Berlin Boyd’s marijuana ordinance in August 2016.  Joe Brown, who had received $5,000 from the MPA (Memphis Police Association) PAC and who had passed on $500 of this to Mike Williams 2015 Mayoral campaign was very pro-police and anti-CLERB.

We had seen how Jim Strickland had introduced the idea that CLERB could not have subpoena power and tried to have this power removed on 7/7/2015.  This cause was taken up in 2016 by new Council member Worth Morgan.   Morgan had been Chair of the Council’s Public Safety and Homeland Security sub-committee since January, 2016, and was ex-officio the CLERB city liaison member.

(PREQUEL 7/5/2016 and 8/9/2016) Worth Morgan introduced a measure to remove CLERB’s limited subpoena powers.   A furious debate ensued, with CLERB supporters again in the chamber.   CLERB, through its Council liaison, would request Council to issue the subpoena, and the case would be heard as a Council meeting.   This version of subpoena power was passed, with only Kemp Conrad voting against the compromise.

Worth Morgan’s attendance at CLERB meetings is recorded in ARCHIVE.  He attended only the April and June 2016 meetings, and missed all 17 meetings subsequent to June 2016.  This had the effect of making the cumbersome subpoena process even more so, due to the City Liaison’s role in the procedure.   Morgan’s chronic absence from CLERB severed the only link to City Council.

What to do about CLERB?

The obvious move, to try and get City Council, to change the CLERB ordinance is a non-starter with the current City Council incumbents.   Although Philip Spinosa has left Council, his hand-picked replacement, J Ford Canale, is likely to vote with the Caissas.  Joe Brown is very anti-CLERB, so the votes are just not there.  Maybe after 2019, especially if CLERB can be made an election issue.

CLERB could consider asking Council for a subpoena at the next available opportunity.  It would be a good opportunity to test the process.  The outcome may inform the voters.

Allan Wade was the originator of the “opinion” that the City has no right to delegate subpoena powers.   It first surfaced on the record as a comment by Jim Strickland (PREQUEL 7/7/2015).  Wade is known for providing dubious legal opinions as required by Council.

Attorney Bruce Kramer (ARCHIVE 7/14/2016) pointed out that Knoxville has a CLERB with direct subpoena powers.   There is no mention of delegation of subpoena powers in the City Charter or statutes.   This would suggest that the issue could be litigated.

CLERB binding recommendations.

During the 2016 discussion of CLERB at City Council, (PREQUEL 7/7/2015), in an assumption that goodwill would exist with all parties, CLERB recommendations were made non binding on MPD.  As there has been no goodwill on the part of Director Rallings this might be revisited.    On the face of it the votes are not there on Council to improve CLERB, but Rallings has so violated the intent of the 2015 CLERB discussion that the Council vote lock might be broken.

CLERB administration

There are issues with CLERB administration.   The failure of CLERB to get its minutes and meeting documents properly indexed on the City Online Meetings portal is inexplicable.   The video from the regular City Hall meeting rooms seems to be automatically updated but the CLERB administrators would have to follow the same process to catalog meeting minutes and other documents that other City scribes use.   If the City site admins are somehow blocking this process, that issue would need to be escalated.

The issue of personal information in complainant case notes is often cited.   The Tennessee Open Records law is very clear that documents which contain certain personal information, such as health details, and some personally identifying information, must be redacted before publication.

The CLERB website is finally live.  Normal practice for a website with periodic document downloads is to provide the administrator with a software tool and security access to upload new documents.

At the time of writing, there have been some improvements to the CLERB tab on the City meetings page and a new page has appeared on the CLERB site with eight documents.  (ARCHIVE).   These are new and welcome. But way not enough.

CLERB cannot meet its transparency objective until the clerical task of uploading all its documents, and keeping them current, is complete.   We created our archive to serve as a source of documents and also to show CLERB how it is done.   It is not persuasive to blame the City for these omissions.   As yesterday’s new page as shown, CLERB do have control over their site and could have added documents anytime.   Or paid $40 for a blog page and done it there.   No excuses for lazy publication.

CLERB is authorized for one additional employee.  CLERB could avail of an intern from the city.   The Tennessee Law Society has offered to put CLERB on its books as a recipient of pro-bono legal help, but CLERB refused this offer.    Lack of manpower is not an excuse.

CLERB Demands

In CLERB’s letter to the Mayor of 5/10/2018, the following solutions were offered.

“1) Director Rallings to be reasonable and at least meet us in the middle on our decisions (compromise),

2) A new police director who will work with us (CLERB)

3) A new ordinance that gives CLERB binding decision-making power, or

4) an amendment to the current ordinance, which gives appellate power to the mayor over the police director’s decisions”.

 

Make Recommendations for MPD policy change.

In (ARCHIVE 11/17/2016) John Marek pointed out the CLERB cannot change MPD P&P but can make recommendations for policy changes.

What specific recommendations to make?  That’s a wonky subject.   MPD’s P&P manual is voluminous.  It would be a lifetime task to make it right.   A few changes are suggested by the CLERB work product.

Premises Advisory / Hazard Location Policy

Reginald Johnson’s case (ARCHIVE   11/11/2016 and 3/9/2017) suggests a P&P change.  After trying to hold MPD to account for investigating the death in 2014 of his son Samuel, and after his CLERB case was upheld, Mr Johnson’s house was flagged by MPD as a “hazard location” via a data construct called a “premises advisory”.    After a large turnout of MPD cruisers to his house for a routine call, Mr Johnson, considering his beat-down and macing by police, was understandably intimidated.   Mid South Peace and Justice took up his case and, in May 2018, Mr Johnson had a meeting with Director Rallings and other officers, in which he was told the premises advisory would be removed.   The term “Hazard Location” or “Hazard List” was used by all commentators.   The term “Premises Advisory” was first introduced by MPD brass during the May meeting with Mr. Johnson, who reported verbally on the meeting.  MPD refused to create any record of this meeting.

MPD needs a policy which governs the use of premises advisory and/or hazard location designations.   This should include criteria for creating this datum, notification of the subject, a review procedure, and a procedure for challenging use of this procedure.    This P&P recommendation could be attached by CLERB to Mr. Johnson’s case as an addendum.

 

DR501: Attendance at Court.

This is a much-abused existing policy.  It is in the P&P Manual, chapter 1 section 3, DR 501.   (PDF).  In his testimony to CLERB, (ARCHIVE 11/17/2016) Reginald Johnson mentioned that his case was dismissed when the arresting officer did not show up in court.

DR501: “All commissioned members of this Department are considered officers of the court and shall testify or give evidence before any Grand Jury or court of law when properly called upon to do so and when there is no properly asserted constitutional privilege, or when immunity from prosecution has been granted…”.

 

Why this is significant, is that an arresting officer is required to appear for the preliminary hearing, where she is required to prove probable cause for the arrest.   Officers have been observed to not turn up for the preliminary hearing in order to make a case go away.   This might be because a false arrest was perpetrated, or as a reprisal or punishment, where the arresting officer never planned to attend the preliminary, or because the arrest is problematic or sometimes as a courtesy to a fellow officer who is on trial.   We posted about this issue, with several examples.

While not attending is a breach of regulations, the worst that happens according to anonymous police sources,  is a half-day suspension, and a slap on the wrist is more common.

Why preliminary appearance is important.

Being arrested and having to go through the process of detainment, obtaining bail and legal representation, and take time off work for court appearances is expensive and time consuming for a defendant.  Currently the arresting officer is incentivized to allow the case to proceed through the prosecutor’s process, in the hope that the defendant will take a proffer.   This can leave the defendant liable for court costs and with a conviction on their record.

The jeopardy and cost issues for the defendant are much greater than any punishment the officer will attract for not turning up.   It follows that, if a cop is planning to ditch the case at the preliminary hearing, that the prosecution process should end as quickly as possible, to minimize the harm to the defendant.

We have spoken to police who maintain that it is a policeman’s right to arrest anyone and put her in the jail for 14 hours or so, and to evade consequences by not appearing for the preliminary hearing, a sort of job perk.

Suggested changes to DR 501.

• When the missed court appearance is a preliminary hearing, a wrongful arrest should be assumed and IAD should be required to open a false arrest case.
• Mandatory and increasing punishments for not appearing at a preliminary hearing should start at a week’s suspension for first offence, and increase for every offense thereafter.
• A third offense should be punished with mandatory dismissal from the force.
• The existing DR501 has provision for genuine health-related and other excuses for non attendance.
• Police should be encouraged to reveal to the prosecutor and defense that he will not attend the preliminary hearing as early as possible in the case, and this should result in immediate dismissal of the case. There should be a reduced punishment for the officer when this happens.
• Any pre-trial plea agreement should go to the preliminary hearing for ratification by a judge, so the plea and the case can be thrown out if the officer does not appear, or if he fails to prove probable cause for the arrest. An IAD case should be automatically opened whenever probable cause is not established for the arrest.

Internal Affairs Case Acceptance Policy

MPD’s Internal Affairs sometimes rejects cases.  Normal practice for police internal affairs bureaus is that a case should be started for each and every complaint by the public.  Federal Department of Justice standards (PDF) states, on page 12 “The widest possible net should be thrown open at intake to receive all complaints from all possible sources of complaint.”

MPD’s IAD does not open a case for every complaint.  Instead, they sometimes create a “miscellaneous note” for a complaint.   This directly affects CLERB because a rejected IAD complaint can’t be taken up by CLERB.

I personally experienced this, when I called IAD in November of 2016.  I had been arrested, and the arresting officer failed to turn up for the preliminary hearing.   When I approached CLERB to take up my filming-the-police case, they could not because IAD had rejected the case.   I escalated the IAD complaint to the lieutenant in charge, who adamantly refused to open a case.   In the end, as Paul Garner’s CLERB case covered similar ground, I gave up trying to get IAD to take the case.

IAD can, and does, create a catch-22 situation by this policy, where cases can be kept from CLERB.

CLERB should make a recommendation that IAD’s policy be changed to be in line with normal police practice and DOJ recommendations.   A case must be opened for each and every complaint.

Additional actions by CLERB.

CLERB is likely to encounter additional opportunities to consider P&P changes in the course of their work.

A P&P change that is rejected by MPD can still be taken to Council as an ordinance, or perhaps the Police and Homeland Security sub-committee can take direct action with the police.

The current Council is unlikely to pass a new amendment to the CLERB ordinance to add subpoena powers or to allow mandatory CLERB recommendations.

But the current Council might entertain reasonable small changes to the P&P.

New City Council 2019

The political options for a new City Council regarding CLERB may become greater.   There are two additional measures which should be done, given the political will:

• Amend the CLERB ordinance again to give CLERB direct subpoena power, and be ready to defend this measure in the courts.
• Amend the CLERB ordinance to give CLERB authority to make binding recommendations to the Police Director, including the ability to amend the MPD policy and procedures manual.
• Increase the CLERB budget and authorized staff positions.

Next from memphistruth.org is the final piece of the CLERB series.   It delves into the political process by which white control over policing is maintained, and its relationship to the economics of power in the city.

–concluded–