This week has been a game changer. Memphis history will forever be divided into the pre-ACLU era and the post-ACLU era. MPD in particular is in crisis, and, because of role of public safety in our local elections, the crisis extends into the political sphere.
The trial itself.
We saw a steady stream of MPD brass take the stand and be defensive. The City strategy has been to try to make the police look reasonable, and to paint the activists as crazy fools. This strategy plain failed, as Paul Garner, Elaine Blanchard, Earle Fisher and Keedran Franklin presented well on the stand. It is notable that the City did not send Jim Strickland or any of the”public safety” advocates to defend their police buddies.
The defense cut their losses on Thursday and pulled the plug on trying to discredit more activists or putting more police on the stand. Essentially, they accepted defeat after a very poor display of legal skills.
MPD is not a monolith. It has leaders jockeying for position as the next director, a large number of disaffected members who are still disgruntled over pensions and benefits, a degenerate and poorly led MPA and a sizeable contingent of out and out racists who are chafing at being led by an African American director.
We can expect instability at MPD. At this point I see little benefit in stirring the pot at MPD. We’ve stirred. Stirring done.
At this point we need to be concerned that the police will revert to form and lash out at civilians and activists. We suggest extreme care in interactions with police as we await the verdict from the trial. We have no need to provoke further reactions from MPD. We’ve already unleashed the nuclear option.
Strickland’s administration has not been watching the backs of their police. He has been declining to comment on the sub-judice proceedings. We expect this to continue.
In the meantime, the hitherto solid eight or nine vote pro-police Council block is already showing signs of fragmenting. Joe Brown and Edmund Ford are term limited and won’t need to expend political capital on defending the police.
Berlin Boyd is up for re-election. He has been at odds with the Kemp Conrad knee-jerk brand of police support, voting against Conrad in the August 2016 marijuana ordinance. Boyd knows that he needs to put some distance between himself and the law and order lobby. He’s been reaching out to certain activists with some truly strange proposals.
Jamita Swearengen, as the new chairman of the Public Safety Committee, has been conventionally pro-police, generally following the MPD’s COP community policing line. She made a speech at CLERB extolling Blue Crush and the deployment of 490 new spycams, which City Council approved a budget of $1.5M for on July 10th.
Patrice Robinson has not been saying a lot about policing.
Of the white Council members, all part of the Caissa group, the more extreme police fans like Kemp Conrad and Reid Hedgepeth, with Bill Morrison, are term limited. We might see some posturing from them. Ford Canale remains a cypher, although he rang the Public Safety bell in his August election campaign, apparently with less effect than his predecessor.
We don’t see much incentive for Council members to expend political capital on defending police prerogatives. In fact, we think some of the previous pro-police coalition, especially Berlin Boyd, are already maneuvering to create some advantage for themselves.
Activists have ling sought a strengthening of CLERB powers. CLERB needs subpoena power, and the ability to make binding recommendations for disciplinary actions and policy and procedure changes. Look to Memphis United, fresh from Paul Garner’s performance on the witness stand, to be making proposals. In addition, it appears that the administration has successfully sabotaged the ability of CLERB to post documents on its own website and on the City archive site.
It’s hard not to see the canny Garner taking advantage of MPD’s predicament.
Mike Rallings, as the officer who presided over the decline in MPD political interference, and because of his unconvincing defense of his policies on the stand, is damaged goods. He has been left dangling by his political masters. There is no question that he can survive past the election of the next mayor in 2019. He either takes control of his fate and resigns, or the political upheaval that now starts will result in his firing.
Rallings has been fully vested in his MPD pension plan for about a year.
It seems very clear that a new director can’t come from the culturally compromised MPD. The next Police Director must be chosen on the basis of a proven record of community policing. The internal candidates who have been preened as Ralling’s successor are infected with the racial disease that infects the force and will be rejected.
Our suggestions for police director include Anne Kirkpatrick, Oakland CA police chief. She applied for the job in 2016. Another is John S Thompson, Camden NJ police chief.
The 2019 City elections
The current mayor and most of City Council were elected in 2015 with dog-whistle campaigns, evoking public safety with racial coding to get elected. The dog whistle was already losing its effectiveness. J Ford Canale blew the dog whistle in the Super 9-2 election and his vote was down 25% on Philip Spinosa’s 2015 performance. David Lenoir used the dog whistle in the County Mayor election and was convincingly defeated by Lee Harris.
Incumbents will be forced to run on other issues. Insurgent candidates will focus on poverty, economics and policing, where incumbents have a dreadful record. Strickland has not been brilliant at the basics. The Caissa Seven have been exposed as the next best thing to a political conspiracy.
Expect a lot of surprises as incumbents and challengers jockey for position and make economic arguments. Expect opponents to rally around retaining IRV in the December referenda, and issues like EDGE, economic development, energy policy, CLERB, policing and poverty to be well aired in the election runup.
Policing has been the lynch-pin of Memphis politics, especially in the last election cycle. The pin has been pulled from this grenade.
People need to be very careful out in the streets.
In the halls of power, expect surprises. 2019 will be fought and won on real policies, not the stalking horses of yore.
This Slate article about Dylann Roof, where he was quoted saying “You rape our women, and you’re taking over our country, and you have to go.” debunks the myth of Black on white violence.
Behind the myth of black rapists was an elemental fear of black autonomy, often expressed by white Southern leaders who unhesitatingly connected black political and economic power to sexual liaison with whites. “We of the South have never recognized the right of the Negro to govern white men, and we never will,” said Sen. Benjamin Tillman on the Senate floor in 1900. “We have never believed him to be equal to the white man, and we will not submit to his gratifying his lust on our wives and daughters without lynching him.”
We all know that during times of enslavement, the raping was being done by the slave owners. Ida B Wells and others debunked Jim Crow era allegations of Black rape against lynching victims. Genuine rapes of white women by Black men seem always to have been exceedingly rare or non-existent.
Nonetheless, this specter of Black violence against white people is still very much in existence. We see white politicians, like Jim Strickland, Kemp Conrad, Reid Hedgepeth, Bill Morrison and Worth Morgan harping on public safety, with coded references to the mythical danger posed to white voters by unrestrained and savage Black people.
Jim Strickland’s 2015 campaign.
Steven Reid, Jim Strickland’s 2015 campaign manager, wrote “How A Throwback Campaign Made History In Memphis”. The campaign did extensive polling and decided that Strickland’s Council public safety emphasis was the right strategy for the Mayoral campaign. They focused on the 70% of voters who were over 55 and used traditional media instead of electronic as that age group don’t use social media much. The article does not mention anything about encouraging racial vote splitting, which also helped Strickland greatly.
The article mentions some of the dog whistles in Strickland’s campaign, borrowed from his Council positions. “Strickland had long advocated for zero tolerance with violent criminals. And in the wake of a rash of juvenile crime in the city, including a high-profile attack on citizens at a Kroger store, Strickland had become critical of the mayor for failing to enforce curfew laws”. The linked article in Reid piece is a dead link. We substituted another similar media link. The campaign made a special effort to shore up white voters in the couple of weeks before the election.
The articles treat the public safety issue as a found phenomenon, failing to mention Strickland and his allies roles in stoking this fire, with help from the media.
Media Dog Whistle
The media, especially TV, have often been accused of dog whistling. This Commercial Appeal article which featured the third photo of the workers taking a break in the print version, was widely criticized for portraying negative racial stereotypes, by showing the Black youths taking a much needed hydration break, and by the selection of a quote from Mark Luttrell, one of the few white people in the article, using the loaded word “idleness” in the headline. CA Editor Mark Russell agreed that CA editorial policy was at fault in this instance, and the CA has since done a better job at avoiding racial coding.
This Channel 5 piece is typically coded, as was the Plaza Kroger piece we quoted in the Reid article.
The White Alliance on City Council.
Strickland had worked with members of the Caissa Seven in the 2015 council. The 2016 council is controlled by the Caissa Seven. Strickland is associated with Brian Stephens of Caissa Public Strategy, who had a prominent management role in Strickland’s Mayoral transition team. Philip Spinosa’s replacement, J Ford Canale, is expected to vote the Caissa Seven whip. He is closely associated with Strickland, Spinosa and Hedgepeth via the CBHS old boys network.
It is easy to see the Caissa Seven agreeing with “We of the South have never recognized the right of the Negro to govern white men, and we never will,” as per Sen. Benjamin Tillman. The Caissa Seven persuaded themselves that they are protecting Memphis from itself.
Council is gerrymandered to produce six white and seven Black councilors. This already under-represents Black voters by about 10%, and keeps the white delegation within one vote of control. By recruiting Berlin Boyd, they maintain a 7-6 vote lock. In addition, Joe Brown has always voted “law and order” with the white minority. Brown received a $5,000 donation from Memphis Police Association in 2015, and donated $500 in turn to Mike William’s (MPA President) mayoral campaign.
The Dog Whistles
Zero tolerance, both for violent crimes and in-school infractions. This falls heaviest on Black people. School disciplinary problems are escalated to the juvenile justice system.
juvenile crime is often a coded reference to crime by Black youths, including the example of the Kroger disturbance given by Stephen Reid above
curfew is disproportionally used on young Black people.
Memphis Shelby Crime Commission Youth Violence Plan (PDF). They are talking about Black youth violence and increased prison time.
The Case of CLERB
The current situation of CLERB is a well-documented history of how far Council members will go to protect the police force against transparency. In 2015, after a far-reaching campaign, Memphis United forced an ordinance on City Council to revitalize the long-moribund CLERB. The matter was eventually delayed until November 2015, when it was passed. Worth Morgan then introduced a new measure in 2016 to curtail CLERB’s subpoena powers.
Bill Boyd, proposed an amendment to reduce the CLERB budget on 6/16/2015
Kemp Conrad voted against the CLERB budget on 6/16/2015. He egged Berlin Boyd to ask for a November vote rather than an early approval of the CLERB ordinance on 8/4/2015. He also made vicious personal attacks on Memphis United’s Paul Garner and the pro-CLERB lobby from the council dais that day. He tried fear mongering, quoting an email from MPD Director Toney Armstrong saying that homicides would increase 20% if the ordinance is passed. (8/4/2015). Conrad also voted against the final CLERB ordinance on 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, 7/7/2015.
Berlin Boyd on 8/4/2015 asked for a four month delay in voting for the CLERB ordinance, after a phone call on the dais and calling MPD Director Toney Armstrong to the mic.
Reid Hedgepeth also voted both to delay CLERB on 8/4/2015 and against CLERB reactivation on 11/3/2015.
Also voting to delay CLERB on 8/4/2015 : Bill Morrison and Joe Brown.
In 2016, Worth Morgan introduced a measure to curtail CLERB’s limited subpoena powers, which passed on 8/9/2016. Voting for clipping CLERB’s wings: the Caissa Seven: Kemp Conrad, Reid Hedgepeth, Berlin Boyd, Bill Morrison, Worth Morgan, Philip Spinosa and Frank Colvett. Joe Brown also voted for.
Police directors Armstrong and Rallings and MPA president Williams also intervened in the CLERB dispute. After the August 2016 vote, Worth Morgan failed to attend every CLERB meeting. As he was the Council liaison on CLERB, this severed the direct connection between CLERB and the city, and introduced an additional obstacle for CLERB using its cumbersome subpoena process via Council.
The example of CLERB shows how the law and order faction on Council works closely with MPD to protect it from even the mild transparency that CLERB offered.
The voting patterns around the CLERB votes are typical of the other votes on Council involving police. The main exceptions were Berlin Boyd’s marijuana ordinance in August 2016 where Kemp Conrad was the lone nay vote in a generally popular measure, and in the negotiations around the 2017 budget when the police budget was marginally cut in sub-committee. The Caissa Seven seems to recognize that Berlin Boyd needs to play to his district and relaxes the whip on him occasionally.
MPD’s Institutional Interest
We have seen MPD steadfastly victimizing the Black population, from the early slave patrol days, through the 1866 Memphis Massacre, Reconstruction, the Jim Crow era, the Crump regime and the extraordinary measures taken to suppress the Civil Rights movement under Chandler. Even now, MPD is actively pursuing activists, many of whom are Black.
I have always assumed that current MPD racial profiling is part of their institutional DNA, and they are being racist because they have always been that way. There’s plenty of evidence for that.
But the dog whistle politics of the Caissa Seven and their predecessors coupled with the way the Caissa Seven protect and enrich the police adds another motive for police behavior. They are operating in their institutional self interest by enforcing the Caissa agenda. They are rewarded for enforcing racist policies.
The Wharton era pension debacle created a large pro-police movement, with Mike Williams as their leader. Facebook groups like “Just the Facts” are an example. The Caissa Seven and Strickland tapped into this movement.
Between 2008 and 2017, the MPD budget has grown by about a third ($60M), at a time when other City budgets were being cut to the bone. It is the biggest share of the City budget.
Mayor Strickland, with the Memphis Shelby Crime Commission, attracted private funding for police retention, and the administration has been emphasizing police training classes and police recruitment. Public safety employees were given additional wage increases in the 2017 budget.
The CLERB episodes gave the Caissa Seven another opportunity to show MPD that their interests are being looked after.
All this is not surprising. Machiavelli wrote in “The Prince” that rulers have to protect their security force, even when they do wrong. The Caissa Seven and Strickland need the police to protect their positions and the economic interests of their financial backers.
MPD has every reason to play along with the dog whistle politics. It enriches and protects them. They are actually being encouraged to double down on their repressive, racist history. It’s not a few bad apples. It’s the institution.
Dog whistle politics is a real thing. Its main function is to use traditional racist memes to make white voters afraid. The practitioners have also perverted community policing by using programs such as COP and neighborhood watches to recruit Black pastors and community activists to also gain police support in the Black community. Our recent post on the CCC’s misinformation campaign shows how MPD used a mailing list of supporters to get the word out.
It has been a successful strategy in preventing the 64% Black majority from controlling the levers of power. Or, if you like, keeping white minority control of the city.
Its consequence has been a protected, out of control police force which is motivated to profile the Black community, and the activist groups who are #woke to these issues.
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.
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.
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.
Memphis: We have recently seen news reports about CLERB. At the May 10th CLERB meeting, CLERB members vented their frustration because “…the Memphis Police want a “dog and pony show” without any accountability, said the Rev. Ralph White…”. “There’s no respect for the board.”
Mike Rallings, MPD Director, had replied to CLERB’s original four letters about sustained cases. CLERB then composed this letter to Mayor Strickland. The frustration at MPD Director Mike Rallings’ stonewalling of every CLERB suggestion is palpable. “…The members of CLERB volunteer our time, and, currently, it is being wasted…”.
Unfortunately, the CLERB website, whose creation was delayed until eighteen months into CLERB’s revival, does not host a single CLERB document, as is required by the CLERB ordinance. There are no minutes, copies of official letters, not a single word about CLERB’s cases. CLERB’s role, above all else, is to bring transparency into police abuses, and their failure to post their documents and videos marks a tragic failure in their mission.
We addressed the CLERB archival deficit in our first piece on CLERB. Hopefully they’ll rectify that issue soon. If not, we’ll continue to update our archive until they do.
This second installment into our CLERB investigation is a prequel of sorts. We think it is essential, in any discussion of fixing the problems in CLERB, to understand how CLERB got to its current state.
CLERB was created by City ordinance in 1994, in response to a spate of police shootings of civilians, as “an independent, non-police Mayoral Agency with … the power to receive, investigate, hear cases, make findings and recommend action on complaints.” CLERB’s shortcomings was noted at the time: “…CLERB can only hear a case after Memphis Police Department’s (MPD) Internal Affairs (IA) has completed its investigation … CLERB has no subpoena powers … MPD officers’ presence at a CLEB hearing is … voluntary… the extent of CLERB’s disciplinary power is a non-binding recommendation to MPD”.
According to this Commercial Appeal article from 2015, “…The program went inactive in 2011 because it didn’t have the support of the administration and no enforcement power, said CLERB chairman and Rev. Ralph White…”. The administration referred to is Mayor Wharton’s.
Paul Garner enters the picture.
In May of 2013, Memphis City Council unanimously passed a resolution, tasking Memphis United with holding nine public forums, one in each council district, to hear from constituents as to what they envision for the role and function of CLERB in Memphis. Subsequently, Memphis United consolidated feedback with best practices identified by the National Agency for Civilian Oversight of Law Enforcement (NACOLE.org) and prepared recommendations for the Council in a report entitled, “Increasing the Effectiveness of the Civilian Law Review Board.” (PDF).
On 10/21/2013, Paul Garner, an organizer for H.O.P.E. (Homeless Organizing for Power & Equality), was arrested by MPD allegedly for disorderly conduct and obstructing a highway or passageway. He was filming police who were harassing occupants of Manna House, on Jefferson St., a resource for the homeless and poor. “I understand you’re videotaping, and it’s on video, so I’m going to take you for jail for obstructing highway passages,” said one of the officers in the video.
Photographing police is protected by the first amendment. It is perhaps no surprise that MPD Director Toney Armstrong weeks later issued this policy, on 12/7/2013 (PDF), explicitly invoking that first amendment right. The policy is in Chapter 2 section 14 of the MPD Policy and Procedures Manual, under Public Recordings (PDF pages 77 et seq).
Gary Moore’s documentary, Who will Watch the Watchers, documents this story, following Garner’s Kafkaesque journey through the criminal justice system and the campaign of Mid South Peace and Justice offshoot, Memphis United, in this narrative.
Paul Garner’s case was dismissed. He subsequently took his case to the IAB and was told, on 4/10/2014 that his case was “not sustained” by Internal Affairs. Memphis United took the case to City Council on April 15th 2014, after being unable to take his case to the moribund CLERB.
The group took up the public review of CLERB, organizing and financing public meetings in all nine City Council districts, getting citizen input and following industry reporting standards. The series of public meetings started on June 24th 2014 and the report was completed in March of 2015. Memphis United reportedly paid $100,000 for this public input process.
There followed a series of City Council actions or inactions culminating in an August 2016 ordinance which reinstated CLERB but failed to rectify many of the problems that the Memphis United study had recommended.
City Council Actions on CLERB
The issue reappears April 2015
The CLERB ordinance first came before Council on 4/21/2015. “… 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 …”. It was passed unanimously on first reading in its original form (PDF) as proposed by Memphis United. (minutes).
The ordinance was approved on second reading on 5/5/2015. (minutes).
On 5/19/2015 the ordinance came up for the third reading and was held over until June 2nd. (minutes).
On 6/2/2015, on third reading, the measure was held over until June 16th (minutes).
CLERB Budget Approved, June 2015
On June 16th, a budget motion to fund CLERB with an amount of $200,000 was proposed. Bill Boyd proposed an amendment to reduce it to $100,000, which was voted down. The motion to fund CLERB was passed, with opposing votes from Kemp Conrad and Bill Boyd. The CLERB ordinance was not discussed (minutes).
The CLERB ordinance was next discussed at a Council meeting on July 7th 2015. An amended version of the ordinance was presented. Council member “…Jim Strickland said the city’s legal department weighed in on the ordinance and said the City Council couldn’t give subpoena powers…” The legal theory propounded by Allan Wade was that Council had subpoena powers but could not delegate them to CLERB. References to county involvement, IAB and city employee compulsory attendance were also modified. Memphis Police Association (MPA) said that there were already enough controls in place, maintaining their steadfast opposition to CLERB reactivation. (minutes). The item was held over until July 21st. Dozens of citizens spoke to the motion.
The ordinance was not on the agenda for 7/21/2015 (minutes).
August 2015: CLERB issue comes to a head
On 8/4/2015, a pivotal Council meeting had some strange exchanges. The CA relates that, on August 1st, an MPD officer, Sean Bolton had been killed. MPD Director Toney Armstrong asked for a delay in the final approval of the CLERB ordinance. Armstrong lied on the record, saying “My support for CLERB has not changed.”, directly contradicting his opposition on the record from 4/21/2015.
“We lost this officer and we should give the family respect. Let them grieve,” said Berlin Boyd, who proposed the delay. “Voting for the delay were council members Berlin Boyd, Bill Boyd, Joe Brown, Kemp Conrad, Edmund Ford, Reid Hedgepeth and Bill Morrison. Voting no were members Harold Collins, Alan Crone, Janis Fullilove, Wanda Halbert, Myron Lowery and Jim Strickland.”
“But even before there was a call to delay, Conrad made an argument against CLERB, calling the supporters people who don’t like the police and have an anti-police agenda.”, per the Commercial Appeal. This severely understates what actually happened. “Who will Watch the Watchers” documentary includes footage of Kemp Conrad berating Paul Garner from the Council dais, saying that Garner hated the police.
The four-month delay punted the vote after the November 2015 Council elections. Strangely, neither the Council minutes nor the Executive Session minutes or Police Committee agenda contains any mention of this “debate”. This is surely a falsification of official documents, a felony at both State and Federal levels. The official Council video tells the whole story.
After six members of the public, including Bradley Watkins of Mid South Peace and Justice Center, spoke, supportive of the compromise draft which had emerged during discussion.
Wanda Halbert, then defended the proposal, emphasizing the efforts of MPD, MPA, the Mayor, Memphis United and other activists and CLERB itself to come up with the amended ordinance.
At this point, Kemp Conrad said that transparency was not the objective. He said the process was led by “people who don’t like the police”, people with an anti-police agenda, championed by Mr (Paul) Garner. It is bad policy to put a “self-described troublemaker” in charge of drafting this ordinance. The effect of caving in to activists is the reason for the 20% rise in homicides. Leadership should not be swayed but should support the police. He urged a vote against the measure to send a message to the police that they would stand by them. The CLERB measure has no balance, because policing problems are due to a few bad apples, not a systemic problem. Paul Garner has clearly expressed disdain for MPD. This would be a vote against public safety.
Wanda Halbert, clearly shocked at Kemp Conrad’s outburst, stood up for Paul Garner and praised the hard work of Memphis United. She criticized Conrad for ‘sandbagging’ the process at the third reading, and she listed some of the improvements to CLERB embodied in the draft.
Janis Fullilove asks a question of Wanda Halberd, who assures her that police wrongly accused by CLERB will have redress under State ethics law.
Kemp Conrad quotes an email from MPD Director Toney Armstrong saying that homicides will increase 20% if the ordinance is passed. He again lambastes Paul Garner, calling him a “lawbreaker at heart”.
Wanda Halbert again defends Memphis United.
Alan Crone defends Wanda Halbert and the collaborative process by which the current draft was negotiated. He points out that an officer exonerated by CLERB will be in a stronger position than if she is exonerated by MPD, where a cover-up might be alleged. He points out that they had already funded CLERB and that the changes were mainly the tightening up of timelines and the clarification of various procedures. He praised the job Wanda Halbert had done in shepherding the discussions and again enumerated the ownership groups involved.
William Boyd then asked for details of the drafting meeting.
Berlin Boyd intervenes at behest of MPD Director
Berlin Boyd then invited Police Director Toney Armstrong to the podium, after a phone call on the dais. Boyd thanks Armstrong for his work and mentions Officer Sean Bolton who had been killed on duty the previous Saturday, August 1st. In a leading manner, he asks Armstrong how he felt about that. He, in a rehearsed manner, asks for a delay in the vote until after the funeral, which was scheduled for the following Thursday, August 6th.
Boyd then asks for a delay until August, after the funeral. Kemp Conrad, speaking out of turn, yells “First meeting in November, after the funeral”. Berlin Boyd immediately takes up the “First Meeting in November” refrain.
Wanda Halbert asked : When is the funeral service, Thursday? What does Thursday
have to do with November? She suggests a delay until after the funeral. She says she is disturbed, and she called out that something else was going on. She proposed an amendment to Boyd’s motion to finalize in two weeks. Another motion to delay for two weeks was proposed, both were voted down and another to delay until September, voted down. Boyd’s motion to delay until November 3rd was voted and approved, with Berlin Boyd, Bill Boyd, Kemp Conrad, Bill Morrison, Joe Brown, and Reid Hedgepeth voting for.
The vote was finally taken on 11/3/2015. Sixteen citizens spoke on the motion, which passed without the drama of August’s meeting. “..Council members Kemp Conrad and Reid Hedgepeth were the only two members to vote against the ordinance …“, according to the Flyer, although the official minutes omit the Nay votes from the record. In the discussion Harold Collins talked about the subpoena issue and other potential issues. Wanda Halbert summarized the process. Video clearly shows the Conrad and Hedgepeth Nay votes.
By this time, the CLERB backlog totaled 186 cases.
2016: Worth Morgan tries to remove CLERB subpoena powers, awkward compromise is agreed
The next time CLERB came up in Council was 7/5/2016. The major change was to remove CLERB’s untested subpoena power and tidy up some issues around CLERB’s open meetings law compliance. Worth Morgan had proposed a mechanism where the Council executes the subpoena on CLERB’s behalf. After much discussion, the motion was held until August 9th. Minutes.
On 8/9/2016, the day Council approved Mike Rallings appointment as Police Director, the council chamber was again full of CLERB supporters. The legacy CLERB ordinance had given subpoena powers to the Board, which had never been tested. Council Attorney, Allan Wade, who has always been happy to opine the way Council wanted, had written an opinion that Council was not authorized to delegate its subpoena power. Worth Morgan had proposed this amendment to make the CLERB ordinance compliant with Wade’s opinion.
From the Memphis Flyer, “…The original CLERB ordinance passed last year gave the board indirect subpoena power, but Morgan — also the CLERB council liaison — had recently introduced new language to remove that power, saying such power would violate the city charter. But Morgan has apparently worked out a compromise that retains the board’s subpoena power but changes the meeting at which those subpoenaed would be compelled to attend.”
The new language up for vote today reads: “In order to carry out its functions, the board is authorized to request through its Council liaison, a subpoena to effectuate an investigation or compel attendance by an officer or witness for a hearing before the Memphis City Council. Upon investigation and fact finding, the Council liaison shall present a resolution to the full City Council to obtain the requested subpoena. Should the Council liaison fail to support the request of the board for the subpoena within the next two council meetings following the date of the request, the board Chairperson may make a recommendation to the City Council Chair. In the event the Council fails to issue the requested subpoena, the board reserves the right to file a complaint with the local and state ethics commissions, Tennessee Human Rights Commissions, or the Department of Justice to investigate the case before the CLERB board.” …”.
It’s worth pointing out that Worth Morgan, the originator of the original wording to strip CLERB’s indirect subpoena power completely, was (until January 2018) the chair of the Council Police and Homeland Security sub-committee and the Council’s representative on CLERB. As Council liaison on CLERB, he would have had a pivotal role in enforcing a subpoena, but Morgan has never attended a CLERB meeting since this amendment. Morgan has attended only two CLERB meetings, both before the August 2016 amendment. Kemp Conrad was the only Nay vote, Patrice Robinson did not vote, Berlin Boyd and Bill Morrison were absent. Minutes. Official Video.
CLERB and Subpoena Power.
At the CLERB meeting of July 14th, 2016 veteran Civil Rights attorney and CLERB member discussed Konxville CLERB’s direct subpoena power, suggesting that direct CLERB subpoena power does not contravene State law, and it was also pointed out that there is no mention of subpoena power at all in the City charter, suggesting no prohibition. Minutes(PDF).
Summary of CLERB reactivation
The general picture is that CLERB was allowed to go inactive, citizen activists had, over a three year period, fought City Council and ended up with a very flawed ordinance. But CLERB had been saved.
The matter of CLERB’s documents.
Many fingers can be pointed at City Council, notably Kemp Conrad’s, Berlin Boyd’s Joe Brown’s and Worth Morgan’s roles in obstructing the initial passage of the ordinance, or its subsequent weakening in August 2016. These, and Worth Morgan’s failure to attend a CLERB meetings, created problems for CLERB’s task of bring transparency to MPD’s operations.
But many of CLERB’s problems are of their own making. They have control over their own paperwork and official website, but, as of the date of writing (5/29/2018) they have not published a single minute, video,case history or official letter on their website, as required by the ordinance. All meetings were captured on video and had a court reporter present. Their work of uncovering the facts of police misconduct has not been helped by the fact that the only way the public can hear about these cases is by attending CLERB in person, submitting an open records request, reading a media account or consulting our own home-made CLERB archive.
The main avenue for transparency has been Gary Moore of Who will Watch the Watchers, who shot video at many of the CLERB meetings. The movie itself chronicles the struggle of Memphis United and allies to get CLERB reinstated and ties it to other activism in Memphis.
Our next CLERB piece will be a summary of measures CLERB and others have suggested to fix CLERB’s problems.
CLERB’s mission is to bring transparency to MPD (Memphis Police Department) operations. Transparency requires that CLERB minutes, case documents (possibly redacted), communications with MPD and other City entities, meeting video and other public documents should be posted on CLERB’s website and some of them also on the City website .