Memphis, TN. In the wake of the ACLU’s civil rights victory over the City and MPD, Celitria Watson and April Malone are bringing a lawsuit against the City, County and six officials for evidence tampering and prosecutorial misconduct.
In our most recent post, we revealed the extent of MPD’s Authorization of Agency (AoA) program, inspired by Memphis Shelby County Crime Commission (MSCCC).
We saw the racial disparity in the initial AoA post. The profiling nature of the scheme, with seven times (84.9% vs 12.3%) the number of Black versus white victims of AoA is confirmed.
We broke down AoAs by the year the initial AoA was signed. 2018 is low because only half a year of data was collected. Years 211 through 2016 are incomplete because we asked in our FOIA for all AoAs between December 1st 216 and July 9th 2018. All precincts but one simply sent all their AoA data rather than selecting the data range we asked for. In addition, we noted many AoAs which were signed on a given date and had additional lines added over the same signature and date later. We have not quantified this factor as of yet but we think it will skew a couple of percent of the dates earlier.
We adjusted the yearly graph by doubling up the 2018 number to estimate a full year, and we added 15% to 2016 and earlier to account for the number of AoAs missing in our sample.
The graphs look similar. From small beginnings in 2011, the scheme grew to about 240 in 2014, then took a big jump to 665 in 2016 and plateaued out to around 600 each in 2017-2018.
We need to look for the impetus behind the 2014 and 2016 bumps. Most likely, some form of marketing or promotional assets were assigned to the program to cause these bumps. We’ll also submit another ORR to obtain the missing data.
We created a new field in the spreadsheet for business category and ran this report. The biggest category is apartment, which also includes mobile home parks, condos, retirement communities and townhouses.
The dominance of this sector may be the result of “Operation Safeway” which had a focus on apartment managers. The majority of these had a just a few AoAs, but complexes like Greenbrier with 48 AoAs and a dozen or so with double digits stand out. Clearly a number of apartment managements embraced the scheme enthusiastically.
The retail sector is largely a handful of AoAs in each store. All branches of chain stores are included. Three chains of dollar stores (Family Dollar, Dollar General, and Dollar Tree) had a total of 38 AoAs, which probably reflects the dollar stores’ well known skimping on security staff. Other chains with large numbers includes Walgreens with 24 and Kroger with 17. Otherwise, few retailers had more than three or four per location.
We think that, like with the apartment sector, that the heavy retail users had an internal policy to use AoA while the light users were probably recruited by police.
The food sector includes all vendors of prepared food and alcohol by the drink. The chains with most branches are the biggest offenders, and CiCi’s Pizza in Poplar Plaza’s 17 AoAs were associated with a well-publicized disturbance at the venue. We know that Operation Safeway targeted food establishments in certain areas, but we think that most of the rest may have been instigated by MPD, including the CiCi’s incident.
The hotel/motel sector includes hotels, motels and boarding houses, has a few stand-outs, probably related to prostitution. The manufacturing sector, though small, is dominated by Smith and Nephew who initiated 85 of the 100 AoAs. This is an anomaly which probably reflects a decision in management to use MPD as part of its security apparatus.
The gas sector looks very much like retail, and when you eliminate the effect of supplier chains like Shell or Exxon, not much stands out.
Public facilities include the downtown MATA terminus, with 24 AoAs and three at the Zoo. We talked about the Zoo political blacklist in the original AoA post. We dispute the legality of public entities barring members of the public.
Churches banned 37 people. It sounds unchristian to us to put people in the system. Even worse, schools had 35 AoAs, and we cannot envision a world where young people can be legally barred from education, or even where a school would involve the police in its disciplinary process.
We see some high-frequency users of AoA. These AoAs are probably due to business policy and may have been influenced by Operation Safeway in some way. The vast majority of AoAs have the potential of being instigated by police, including a handful where we know the case history.
We will follow up with additional analysis, including enriching the data and sampling some case histories to determine the marketing initiatives that shape the AoA usage curves.
We’ve been hearing about MPD’s Authorization of Agency (AoA) process. It surfaced in the media during the A-list controversy, where the actual blacklist was on form AA 0306, the Authorization of Agency form. We also wrote about a couple of Park Protectors who featured on AoAs at the Zoo.
What is Authorization of Agency (AoA)
Authorization of Agency is generally accepted term in real estate law, where it allows an agent to sign property documents in lieu of a principal.
Some police agencies have the concept of authorization of agency, the San Diego PD being an example. In the case of all police agencies we could find, the authorization of agency is a blanket measure against all trespassers, so it’s similar to posting your property.
MPD’s AoA is different. It specified the property, but also has one or more individuals who are barred from the property. This is unique to MPD’s version of AoA.
Normally, trespass does not occur, in the case of property that is not posted, until an accused person has been informed that she is trespassing, and is given time to leave the property.
The legal theory behind the AoA is that the persons listed has been informed that they will be trespassing without further notice if she enters the property again. It supposedly authorizes the police to act as an agent of the landlord in giving notice.
AoA is also promoted by Shelby Co. DA Amy Weirich as part of Operation Safeway. Anecdotally, we hear that it is used against the homeless, by apartment complexes and by businesses who seek to prevent “undesirables” on their premises. The data tends to confirm this.
Our Open Records Request.
We submitted an open records request for all AoAs filed since December 1st 2016, and received about 200 files containing over 1800 PDF forms, many of them older than December 2016. Most precincts sent all their AoAs. We think we have over 90% of AoAs.
As can be seen from the chart, there were 1697 unique AoAs in the data, and race was identified in all but 75. 84.9% of listed persons were Black and 12.3% white, with a couple of percent Latinx and a few Asians. African Americans are over-represented by a factor of 350% compared with the demographics. There are seven times the number of Black people over whites.
The original map can be seen on Google Docs.
Click the “Map” tab to view the interactive map, and the “Rows” tab shows the data, with the source field clickable to go to the source PDF.
The collated data table is available on Google Docs, as a comma-separated CSV file, Excel XLSX and OpenOffice ODS files. These files also contain the name of the barred person, a clickable link to the source .PDF and the page number to search within this PDF. (Updated 9/11/2017: updated spreadsheet with corrections and added business category field; CSV XLSX ODS.)
The map shows a large concentration stretching through downtown, Midtown, Orange Mound, Parkway Village and Hickory hill, with some outliers in Raleigh and Frayser. Most of these places are where the races mingle as in downtown and midtown, or in transitional areas where demographics are changing. But the vast majority of AoA listees are African American.
How AoA is supposed to work.
The forms are filled in by hand by the property manager and are to be witnessed by a police officer. They are maintained in the original form via scanning to .pdf. They are apparently kept in hard copy folders by ward which are carried in police cars. Many of the forms have a three digit ward number written near the top of the form. The data are accessed by manually searching through the forms in the book.
As manual, hand-written forms, there are no controls on handwriting, spelling or general accuracy. Many entries are hard to read, either because the original script is undecipherable or because the documents have been scanned, faxed or copied many times.
Many of the forms have additional data, such as sex, weight, height, and marginal notes with drivers license numbers or scanned licenses, phone numbers, addresses, behavioral notes, details of alleged offenses, car tags or descriptions. DL numbers, Social Security numbers and photos are redacted. Access the original documents to see additional data.
Although some property managers keep the forms on hand and initiate the application, the suggestion to file often comes from a police officer.
Problems with AoA administration.
The forms state that the complainant has notified the subject that they are not permitted on the property, but we have many instances where the subjects were not duly notified, and there is no checking or control on
- Fergus Nolan and Maureen Spain are on an AoA at the Zoo from 31/5/2016 but were not notified, see example.
- Hunter Demster was placed on an AoA on 9/28/2017 and not notified.
- Up to 12 protesters at the Mayor’s house die-in from 12/19/2016 were placed on an AoA, and an additional 40+ people who were not at the die-in were also placed on the “A-list” AoA, but only Keedran Franklin was notified, and not by Mayor Strickland, the complainant, but by MPD plainclothes police.
Lack of notification of being on an AoA can expose the subject to arbitrary arrest for trespassing while unknowingly being listed on the property.
The “protection” afforded a property owner by AoA is similar to an order of protection, in that it prevents an subject from approaching a complainant while on her property, but AoA does not embody the same opportunity to legally challenge the listing. AoA may be viewed as an attempt to bypass the safeguards embodied in the Order of Protection process.
The AoA process is not documented in MPD’s P&P manual, and has no maintenance or purge process. Conditions attached to the AoA listing, such as limited duration of the listing, cannot be enforced. We have examples of AoAs which were supposed to have limited one-year duration still being on file after many years. The AoA my still be in effect after the property is transferred to another owner.
The forms are supposed to be signed by the complainant and witnessed by an MPD member. We found numerous instances of missing signatures of both types, and signatures that were “witnessed” on a different date to the original signature.
We also found numerous instances where a duly signed and witnessed AOA form had additional names added over the original signature, which is a falsification of official records, as the purported signature and witness do not apply to the subsequent changes. We have instances where both the original form and the updated version are on file, and also instances where later names were added in a different hand to the original list. Forms should have unused subject lines crossed out to prevent subsequent additions.
From personal experience, this example illustrates several of the problems with AoAs. On 5/31/2016, the day after their arrest at a Greensward protest, this AoA (PDF, see page 7) was created for Maureen Spain and Fergus Nolan, without notification. Their drivers license numbers were provided to the Zoo by MPD for this purpose, in violation of open records laws, which requires DL numbers to be redacted before sharing with members of the public.
Fergus Nolan unknowingly visited the Zoo on at least three different occasions in 2017. On one of these visits, he was with Hunter Demster, when both were asked to leave. Subsequently, on the 28th, an AoA was created for Hunter Demster, who was not notified.
During the incident described in our February blog, the police were seen working on some papers. Once again, for at least the fourth time, they failed to find the existing AoA for Fergus. The police added him into the existing AoA for Hunter. The two versions are shown above, where the second line was added in a different hand.
This illustrates what we think are common problems with AoAs. They are frequently altered to add more names, making the witness signature fraudulent. Subjects are often not informed of their inclusion on an AoA, making them subject to arrest if they re-enter the listed property unawares. The system is ineffective. Fergus Nolan’s 5/31/2016 AoA was not found on four separate occasions. In addition, the police often add confidential information to the AoA including driver’s license, social security number and photos, which are required to be redacted before sharing with members of the public, and the complainant gets to see this information.
I’m not a lawyer. AoA form AA 0705 is another version of the form, and some are present in our document cache. It cites TCA 39-3-1201, which was repealed, as the authorizing statute. These AoA forms are still active.
TCA 39-14-405 is the successor statute to the repealed trespass measure and it does not mention AoA or describe its mechanism. We have consulted attorneys who believe that the process is not legal, but there has not been a legal challenge to date.
Due Process Issues.
As there is no formal record keeping system for AoAs, and as there are no regulations in the P&P manual, the records are chaotic.
There is no judicial oversight, means of correcting, changing data, purging outdated records, or appeal process.
We saw AoAs as old as 2011, and children as young as eleven listed, with no mechanism for parental involvement.
We saw one situation where the same policeman hawked the same AoA against and individual to four different businesses in an area, suggesting that individual police have a lot of latitude in applying this sanction.
The quality of the system, in terms of data accuracy, legibility, efficient access and data maintenance procedures is rock bottom.
We are aware of several AoAs which have been removed fro the database. These include the original AoA signed in January 2017 for the December 19th die-in, which formed the basis of the A-list. Also missing is a December 31st for Malco theater which had the names of Keedran Franklin and other CCC members who gave out free theater tickets. The deletions we know about occurred after political pressure was applied.
AoA is racist in implementation, has no legal basis, has no checks and balances, is unwieldy, capricious and ineffective, violates due process and has been used as a weapon by MPD officers against the weakest members of our community.
It is questionable if a police force can act as the agent of property owners, in violation of the State trespass law, without compromising their oath to uphold the law.
It needs judicial intervention.
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.
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.
UPDATED: see last section for updates from 7/9 and 7/11/2018.
On the evening of Friday 6th July, 2018, Keedran Franklin was arrested by Organized Crime Unit detectives. OCU is part of the Multi-agency Gang Unit (MGU) which is a joint operation of MPD and the Sheriff’s Dept.
En route from Midtown to his south-east Memphis home, Keedran stopped at a friend’s house near Sharpe Ave. and Robin Hood Lane, and pulled in to a nearby driveway to turn around. Two police vehicles blocked him in the driveway with their dome-lights on, and two detectives, probably OCU (Organized Crime Unit) emerged.
Franklin got out of his car and one of the police who had blocked the driveway lunged at him with handcuffs, injuring his left elbow and right wrist and arm.
One of the OCU police told him “You’re lucky, bitch, we was going to do you.”
Franklin was afterwards taken to the ER, where a dressing was applied to his left elbow and he was treated for cuts and bruising on his right wrist and arm.
While Franklin was being taken down, up to 20 additional OCU police arrived on the scene.
The police claimed they smelled marijuana and used this as a probable-cause excuse to search his vehicle. This is a classic MPD move for turning a profiled traffic stop into a 4th amendment evasion and an arrest. It’s a large part of the reason why black men are arrested at three and a half times the rate of white men.
Franklin was cuffed and detained at the scene while officers searched his car. They found nothing. Later a canine unit arrived on the scene and a dog sniffed the car. At that point, 114.7 grams of marijuana and 19 grams of psilocybin mushrooms were found “somewhere around the back seat”.
The substances were planted in his vehicle by MPD.
Franklin was transported to 201 Poplar, with a detour to the ER for treatment of his injuries.
Incidentally, MGU and OGU officers don’t wear body cams and TNT did not get his phone out before being cuffed, so we don’t expect video of the arrest.
In the System
The case number is 18016596. Keedran was booked on Friday and an arrest affidavit sworn, although it is not yet on file in the County system. Bail was set at $3000 via a video arraignment Saturday morning, and Franklin was released a few minutes before midnight on Saturday. His arraignment happened at 08:30 Monday morning in front of Judge Tim Dwyer.
Franklin is a founder member of Memphis Coalition of Concerned Citizens, an activist group which arise after the 2016 Bridge protest. CCC has at least thirty affiliated groups and has created C3 Community Cooperative, an urban gardening project. CCC runs regular Books and Breakfast events and has done things like distribute food and free movie tickets among the poor.
Our April blog, about C3’s hoaxes played on Law Enforcement, details the events that led up to Franklin’s previous misdemeanor arrest, also at the hands of OCU. Franklin’s 4/3/2018 arrest is thought to be a snatch squad action designed to remove Franklin and other CCC leaders and prevent a faux-scheduled occupation of the bridge at 6:30 that evening.
Fake information had been released about the Bridge occupation which we tracked all the way up to the Tennessee Homeland Security commissioner. This was the most recent of a long list of CCC feints and surprises for law enforcement. Tenn. Highway Patrol had stationed 50 troopers at the Memphis Welcome Center on 7/9/2017 while CCC was holding a one year anniversary of the 2016 Bridge occupation. The Hernando de Soto bridge is the achilles heel of Tennessee law enforcement.
The Bridge, once more.
This weekend, word had again gotten out that CCC was planning another Bridge occupation on Saturday July 8th at noon. We’ll put in new ORRs on Monday to see what MPD and the Fusion Centers have been saying. The rising frustration among LE at CCC’s ability to ring the changes on protest locations has become very apparent.
The real event planned for Saturday was a potluck at First Congregational Church on Cooper.
Was the OCU action in arresting Franklin another pre-emptive strike designed to remove the leadership and “prevent” another Bridge occupation? Did the call to “rid me of this turbulent priest” come from the highest levels of MPD and the State?
Cover-up at the CA?
This is perhaps the strangest event of the weekend. The CA had published Franklin’s arrest story on-line at about 2 PM Saturday, and this headline appeared on the front page in Sunday’s edition. But the print edition’s page 4 did not carry the story, no anywhere else in the paper.
Is the fix in. Did the CA pull the print version of the story as a favor for someone in the City or MPD. The story was finally published on Monday 9th.
UPDATE 7/9/2018: Mark Russell, Executive Editor of the CA, emailed me to day that the Sunday omission was inadvertent “It appears that the wrong page A-4 was picked up the press room and that story did not run as planned.” Human error.
We plan to update this story as the facts come in.
Update 7/11/2018: TNT’s case is scheduled for preliminary hearing on 7/23/2018. Veteran duo of civil rights attorneys Scott and Bruce Kramer are working on his case.
Arrest Affidavit (also available as PDF)
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.
This is the “Big Lie” in action.
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.
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.
This is the hilarious story of how a rag tag group of activists, at Coalition of Concerned Citizens in Memphis, beat intelligence analysts at MPD, TBI, THP and the Fusion Centers at what should be their own game. They did it not once but several times. We have new information on the events of April 3rd 2018.