Thorne Peters is an advocate of repealing marijuana prohibition. In a nation where 58% of voters say pot use should be legal, advocates of legalization are well on the way to the level of consciousness raising that rewarded the efforts of the women’s movement and same-sex marriage activists. Continue reading “Thorne Peters: Weed messiah”
Death Row Inmate and 13 others convicted on bogus testimony.
Earley aka Earlie Story, the subject of our February 15th, 2019 blog, continues to litigate to prove his innocence from his 1999 conviction. He is next in court on March 4th 2019 in Division VIII, Judge Chris Craft’s court. Sharon Rondeau of The Post and Email updates on Mr Story’s current case. Continue reading “Death Row Snitch Jails 14”
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.
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.
The UK-based The Guardian today covered the story, as has Esquire magazine and Citylab. Our local crowdsourcers have only begun to dig in the paperwork, and we are certain that the material will fuel our researches for years to come, but a few vital facts have emerged.
Geofeedia replacement social media “collator” NC4.
Probably one of the most significant finding to date is the identification of the Geofeedia replacement. The ACLU had been after this product as the social media spy tool of choice until the social media powerhouses cut off its data feed in October 2016. The new replacement is NC4, which was revealed in the new a-list documents, we think for the first time. All we can find is this PRnewswire piece which was probably paid for by NC4.com as part of its PR aimed at local LE departments.
This alone means that we are already seeing dividends from the ACLU case, before it is even heard.
Activist counter-intel successes.
Almost as interesting, which squares with what we already knew from our previous blog about CCC’s counter-intel operations, is the fact that LE responses have been repeatedly been triggered by fake news planted by people close to CCC. Our blog uses Open Record information to document how fake news about an attempt on the Bridge escalated all the way to the top of State LE and to FBI. That incident appears to have escalated police response to protests, including the arrest of protesters on April 3rd by a snatch squad from the MPD Multi-Agency Gang Unit’s OCU (Organized Crime Unit). It was a pre-emption intended to abort a 6:30 bogus Bridge occupation. The OCU is all over the ACLU documents. The take-away from this is that information gleaned by MPD and TBI’s CIU from social media is even less reliable than the average social media fake news.
LE bites on fake intel, misses the real information.
Also revealed, something we also suspected from our blog: Not only is State LE liable to fly off the handle and escalate fake news to the top levels of local, State and Federal LE, but they have been doing a very poor job of eliciting the real intel they seek.
Our CCC story reveals that the unknown operational security measures CCC used to safely transmit the real April 3rd itinerary are working. The unadvertised first stop of the Rolling Block Party arrived at FedEx to find no police presence, and the police made the scene in a time span appropriate to a 911 dispatch. So, not only is the police intel gathering catching all the fake news, it is missing the real intel they are after.
Here’s the Daily Kos‘ Gary Moore on the April 3 arrests.
MPD gets vindictive from intel defeat.
Frustration at being totally confounded by this poorly financed, rag-tag group of activists may have led to Keedran Frankin‘s July 6th arrest, and the planting of evidence in his car. This arrest was allegedly in a traffic stop done by OCU, which is not exactly their beat.
Limitations of MPD’s social media spying.
The strange story of “Bob Smith’s” bogus social media account is also revealed. We had feared that MPD’s Real Time Crime Center had the ability to penetrate the end-to-end encryption used by Facebook. However, it appears that MPD was only able to view private data on Facebook to which their fake account, Bob Smith, had ‘friended’ itself. All the information in the earliest document released by the city suggests that only activists friended by Bob Smith could be accessed by MPD. In particular, Facebook Private Messages and secret groups which did not include Bob Smith were safe from spying.
We say this with a caveat: private Facebook stuff could be revealed via NSA decryption or by the issuance of a FICA court order, which does not require much in the way of probable cause. As far as I know, CCC used different means to organize the Rolling Block Party, and I don’t want to know what it was. CCC keeps ahead of LE spying by eternal vigilance and strict operational security.
I was personally targeted by Bob Smith and the information used to smear me, as searches for “Fergus” and “Nolan” separately will reveal. In particular, my arrest on Memorial Day 2016 was presented to be because I advocated lawbreaking due to entrapment by Bob Smith as a deliberate act by MPD, which I know to be untrue. In addition, the story of my uncovering the A-list which I documented in this first party eye witness account is smeared by a bogus allegation of a fanciful meeting I was supposed to have with a County employee, who is standing for election this week. I promised I would not out this person until after the election, but this MPD cover story did not surface until after my A-list story needed to be discredited, and is at variance with my contemporary eye witness account. My story did not change. Theirs did.
In other news: Office of Homeland Security identified.
At MemphisTruth.org, we have been looking for the MPD’s Office of Homeland Security. It turns out to be two officers, Sergeant Tim Reynolds, promoted this April but identified in the documents as Detective, Sergeant and Lieutenant, and as Police Officer II in the current City salaries list. Also Sgt. Edwin Cornwell.
The Office of Homeland Security is part of MPD Special Operations, housed in the Special Operations division, which also houses the Real Time Crime Center which does most of MPD’s electronic spookery.
The ACLU papers will give and give.
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 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.
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.
To provide some depth into the CLERB discussion, we have delved into media reports, material from the redoubtable Gary Moore of Who Will Watch the Watchers, Memphis United, a division of the Mid-South Peace and Justice Center , which played a leading role in the reactivation of CLERB in 2016, and https://www.politicalpolice.org/ which maintains a timeline of MPD history. We’ve gathered as much as we can find, including some documents retrieved via Open Records requests, and present it here to help inform the CLERB discussion.
The creation of CLERB, 1994
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”.
1994 CLERB ordinance Code 1985, Chapter 2-52; Ord. No. 4285, § 1, 10-25-1994
Current CLERB ordinance 5620 (PDF)
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.
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.