Prequel: How CLERB was reborn

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.”

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CLERB Photo: The Commercial Appeal

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.

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Paul Garner, whose case led to CLERB’s reactivation, is in many ways the hero behind CLERB as we know it. Photo: Who Will Watch the Watchers

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.

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CLERB rally in 2015. Photo: Gary Moore

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.

Memphis United

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).

 

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Paul Garner speaks at City Hall. Photo: Gary Moore

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.”

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Kemp Conrat berates Paul Garner from the Council daison 8/4/2016. Photo: Gary Moore

“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

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Berlin Boyd

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

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MPD Director Toney Armstrng. Photo: Bizjournals.

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.

This episode is portrayed in Who Will Watch the Watchers, with video.    It also led to a comic series, CLERBman.

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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 9thMinutes.

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Worth Morgan tried to remove CLERB subpoena powers in 2017.

On 8/9/2016, the day Council approved Mike Rallings appointment as Police Director, the council chamber was again full of CLERB supporters.   The legacy CLERB ordinance had given subpoena powers to the Board, which had never been tested.   Council Attorney, Allan Wade, who has always been happy to opine the way Council wanted, had written an opinion that Council was not authorized to delegate its subpoena power.   Worth Morgan had proposed this amendment to make the CLERB ordinance compliant with Wade’s opinion.

From the Memphis Flyer,  “…The original CLERB ordinance passed last year gave the board indirect subpoena power, but Morgan — also the CLERB council liaison — had recently introduced new language to remove that power, saying such power would violate the city charter. But Morgan has apparently worked out a compromise that retains the board’s subpoena power but changes the meeting at which those subpoenaed would be compelled to attend.”

The new language up for vote today reads: “In order to carry out its functions, the board is authorized to request through its Council liaison, a subpoena to effectuate an investigation or compel attendance by an officer or witness for a hearing before the Memphis City Council. Upon investigation and fact finding, the Council liaison shall present a resolution to the full City Council to obtain the requested subpoena. Should the Council liaison fail to support the request of the board for the subpoena within the next two council meetings following the date of the request, the board Chairperson may make a recommendation to the City Council Chair. In the event the Council fails to issue the requested subpoena, the board reserves the right to file a complaint with the local and state ethics commissions, Tennessee Human Rights Commissions, or the Department of Justice to investigate the case before the CLERB board.” …”.

It’s worth pointing out that Worth Morgan, the originator of the original wording to strip CLERB’s indirect subpoena power completely, was (until January 2018) the chair of the Council Police and Homeland Security sub-committee and the Council’s representative on CLERB.    As Council liaison on CLERB, he would have had a pivotal role in enforcing a subpoena, but Morgan has never attended a CLERB meeting since this amendment.  Morgan has attended only two CLERB meetings, both before the August 2016 amendment.   Kemp Conrad was the only Nay vote, Patrice Robinson did not vote, Berlin Boyd and Bill Morrison were absent.   Minutes.   Official Video.

CLERB and Subpoena Power.

At the CLERB meeting of July 14th, 2016 veteran Civil Rights attorney and CLERB member discussed Konxville CLERB’s direct subpoena power, suggesting that direct CLERB subpoena power does not contravene State law, and it was also pointed out that there is no mention of subpoena power at all in the City charter, suggesting no prohibition.   Minutes(PDF).

Summary of CLERB reactivation

The general picture is that CLERB was allowed to go inactive, citizen activists had, over a three year period, fought City Council and ended up with a very flawed ordinance.   But CLERB had been saved.

The matter of CLERB’s documents.

Many fingers can be pointed at City Council, notably Kemp Conrad’s, Berlin Boyd’s Joe Brown’s and Worth Morgan’s roles in obstructing the initial passage of the ordinance, or its subsequent weakening in August 2016.    These, and Worth Morgan’s failure to attend a CLERB meetings, created problems for CLERB’s task of bring transparency to MPD’s operations.

But many of CLERB’s problems are of their own making.   They have control over their own paperwork and official website, but, as of the date of writing (5/29/2018) they have not published a single minute, video,case history or official letter on their website, as required by the ordinance.  All meetings were captured on video and had a court reporter present.  Their work of uncovering the facts of police misconduct has not been helped by the fact that the only way the public can hear about these cases is by attending CLERB in person, submitting an open records request, reading a media account or consulting our own home-made CLERB archive.

The main avenue for transparency has been Gary Moore of Who will Watch the Watchers, who shot video at many of the CLERB meetings.  The movie itself chronicles the struggle of Memphis United and allies to get CLERB reinstated and ties it to other activism in Memphis.

Our next CLERB piece will be a summary of measures CLERB and others have suggested to fix CLERB’s problems.

 

 

CLERB Archive: we created it.

CLERB’s mission is to bring transparency to MPD (Memphis Police Department) operations.   Transparency requires that CLERB minutes, case documents (possibly redacted), communications with MPD and other City entities, meeting video and other public documents should be posted on CLERB’s website and some of them also on the City website .

Continue reading “CLERB Archive: we created it.”

CCC hoodwinks Law Enforcement with fake intel

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.

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Members of an MPD Organized Crime Unit snatch squad arrest Yuleiny Escobar on April 3rd 2018.  Photo: Gary Moore

Continue reading “CCC hoodwinks Law Enforcement with fake intel”

Memphis Energy Burden

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Memphis has the highest energy burden of US cities.  MLGW and TVA propose a series of rate increases.   A new City program to invest heavily in the energy efficiency of our homes can address the energy burden, reinvest in our communities and reduce poverty. Continue reading “Memphis Energy Burden”

Blacklists from A to Z: New Zoo Z-list

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

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

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

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

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

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

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MPD officer Dan Adams at the Zoo

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

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

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Police conferring at Zoo Plaza.

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

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Hunter Demster being cuffed by Officer Dan Adams

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

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

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

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

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

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

Hunter was later interviewed on video.   Channel 5 reported.

What is an Authorization of Agency?

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

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

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

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

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

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

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

Hunter and my previous Zoo visit.

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

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

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

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

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MPD officer in biker boots escorting Hunter towards the exit.

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

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Zoo security following me towards the exit.

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

What’s next?

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

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