What can be done about CLERB’s toothless condition?

This is the third part of a series on CLERB.

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CLERB rally in 2015. Photo: Gary Moore

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.

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Paul Garner speaks at City Hall. Photo: Gary Moore

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

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Forner MPD Director Toney Armstrng. Photo: Bizjournals.

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:

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Kemp Conrad berated Paul Garner from the Council dais. Photo: Gary Moore
  • 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.
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Jim Strickland, City Council member in 2015, now Mayor  Photo: Gary Moore

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.

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Worth Morgan was the official Council liaison with CLERB but he failed to attend all but two of 20 CLERB meetings.

(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?

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Bruce Kramer, longtime civil rights attorney and stellar CLERB member until dropped by Mayor Strickland in August 2017.

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

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CLERB administrator Virginia Wilson

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.

siteThe 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

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MPD Director Mike Rallings

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.

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Attorney John Marek, long-time CLERB member.

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.

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Reginald Johnson is the poster child for police brutality and retaliation thanks to his CLERB case.

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.

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Maureen’s Spain’s case was rejected by CLERB

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.

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CLERB Photo: The Commercial Appeal

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–

 

 

 

 

 

Blacklists from A to Z: New Zoo Z-list

In this Smart City Memphis article, “with the Memphis zoo parking design now revealed, the final decision is headed inevitably to Mayor Strickland’s desk after a week of public comment. That’s where the buck stops.  There will undoubtedly be intense lobbying of the mayor by both sides.  It is hard to see how the design, which seems senselessly to consume more than two acres of parkland at Overton Park, will not light the fuse for another round of vigorous opposition.”

First we had the City’s A-list, the blacklist of individuals requiring escorts at City Hall.  Now we have the Zoo’s blacklist, the Z-list.   This list has Hunter Demster and myself on it.  It has another thing in common with the A-list – a mysterious MPD construct, the “Authorization of Agency” form.

Hunter called me on Tuesday February 21st and told me that the Zoo had posted photos of both of us at their security checkpoints.   So we saddled up and arrived at the Zoo a little after 4 PM .   We photographed our Zoo mugshots through the glass of the unattended parking shack.

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Hunter’s and my photos are posted in the Zoo parking shack. Photo taken through the glass.

When we got to the Zoo entrance, we engaged the Zoo attendants and asked them why our photos were posted, and they said that we were banned from the Zoo and we had to leave.  They said they’d called the police and we should leave to avoid arrest.

While we were walking back across the parking lot, a police cruiser pulled up in front of Zoo plaza, and Officer Dan Adams dismounted.  He called us, and we turned around and went back to the south-western end of Zoo Plaza.

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MPD officer Dan Adams at the Zoo

Officer Adams was combative right off the bat.   He said that MPD had an Authorization of Agency on us and we had to leave.    We asked why we were being asked to leave public City property and mentioned that we had committed no crimes.

At that point, a second cruiser pulled up with an unidentified female officer.   We asked for a supervisor because her colleague was raising his voice.   She led Officer Adams a small distance away to the lion statue and they conferred briefly.

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Police conferring at Zoo Plaza.

The officers came back over and informed Hunter and I that we were being detained.  Hunter was cuffed behind his back by Officer Adams, led to Adams’ cruiser, parked in front of the Plaza and locked in the back.

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Hunter Demster being cuffed by Officer Dan Adams

The female officer locked me in her cruiser, uncuffed, but took away my phone and camera.

Here’s the video Hunter took of this interaction, from the first appearance of Officer Adams to where we were informed we were being detained.

At this point, the narrative continues from the back of Adams’ police car where Hunter managed to get his camera going and broadcast live.    This video was featured in the Commercial Appeal article.

Antonio Blair and Mark Ravi take up the video narrative from the Zoo parking lot.

During the twenty minutes or so we were in the cruisers, the two original cops were seen in the video working on an Authorization of Agency form, which the Zoo and those police officers had said that they already had filed.   An MPD supervisor arrived after a while, talked to the officers but did not address us.

Eventually, the two cops released Hunter and me, and waved a folded piece of paper at us, which they said was an Authorization of Agency.  They said we’d be arrested if we again entered Zoo property.   They would not show us what was on the paper.

Hunter was later interviewed on video.   Channel 5 reported.

What is an Authorization of Agency?

I am not a lawyer.  Tennessee trespass law is governed by § 39-14-405.  This requires a subject to be advised that she is trespassing, and be given an opportunity to leave, before trespassing can be alleged.   There’s also a provision for property owners (or “employers”) to pay a fee to the Secretary of State to have their property listed on the No Trespass Public Notice List.

Besides the Z-list, we saw Authorization of Agency (AOA) used in the A-list (PDF).   The list is printed on MPD form AA0306, their Authorization of Agency form.   The form is entitled “Listing of Persons Barred from Premises”.   In theory, the named property owner has previously notified the named individuals that they are banned from the named property.   The A-list AOA was written for Mayor Strickland’s home address, and contains 57 activists’ names,   Other individuals who were already on the City Hall exclusion list  were added to the A-list, without being on an AOA form.  There were some individuals listed twice on the A-list.

Lieut. Albert Bonner, MPD head of City Hall security at the time, had extracted the 57 names from active MPD political intelligence files, had the Mayor sign the order, and added a note in the corner of each page saying the named individuals were required to have an escort in City Hall.   The rest is history.  The ALCU court case is ongoing.

Another prominent misuse of the AOA is  Amy Weirich’s (Shelby Co. DA) “Operation Safeway” , which has been used to harass homeless individuals and for fishing expeditions.

We can’t find any law locally that modifies the State law, or any regulation in the MPD Policy and Procedures manual  relating to the Authorization of Agency.   Several cities in California, Virginia, Alabama and Oregon have a similar letter, but it does not designate individuals and is like the Tennessee law, in that the property must be posted.

Authorization of agency, as a legal term, is usually a form of power of attorney authorizing a representative to act in relation to specific transactions.

We have concerns as to the legality of the AOA, its use to implement a political blacklist by a quasi-Governmental City contractor, and the absence of due process around the device.   This may well be a civil rights matter, especially in view of its repeated use as a blacklist.

Hunter and my previous Zoo visit.

The SmartMemphis article is unclear about why we were banned by the Zoo.  The answer may lie in our previous visit to the Zoo.  After reports that chainsaws had been heard somewhere north of the 17 Acres, Hunter and I decided to visit the Zoo during Free 3-hour Tuesday on 26th September 2017.

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An ice rink being built at the Zoo on Sept 26.

We entered the Zoo without incident and walked eastwards towards the Reticulated Giraffe enclosure on the eastbound tram route.  Along the way we noticed that two Zoo employees were following us.   We checked out construction of an ice rink that was in progress east of the giraffe house, and then turned back towards the Zoo entrance.

Along the way, we turned south towards the 17 acres, in an unfenced and unposted area used for Zoo employee parking.  The two Zoo employees shouted at us from a 50 yard distance to leave the area.  We immediately headed north back on the main drag and resumed heading for the exit, pausing from time to time to view exhibits.

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MPD officer in biker boots escorting Hunter towards the exit.

When we got near the Hippo Camp, we were approached by an MPD officer in motorcycle gear.  He asked us to leave, and the policeman walked Hunter to the main gate, while the Zoo employees walked behind me.    When we got to the main gate, Hunter inquired why we were being asked to leave.  The cop said that the Zoo wanted us gone and we’d be arrested if we didn’t, so we left.   There was no violence or even raised voices, we never entered any fenced or posted area, and we left when asked.

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Zoo security following me towards the exit.

I also visited the Zoo in June and took photographs without incident, and also took photographs in the Zoo parking lot and from a drone at various times in 2017.

What’s next?

“Save the Greensward” is planning an event, “Free Tuesday at the Memphis Zoo”, on Tuesday Feb. 27th.  Park protectors intend to line up in an orderly manner for admission to the Zoo.   Hunter and I plan to attend.

The Zoo Parking Plan, a highly defective document, goes to the Mayor for contract approval on Wednesday.