Marvell Locke (59) died at the hands of Circle K store clerk Nicholas Vitatoe, on May 19th, 2020.
As reported by Action News 5 later in 2020, Marvell Locke is seen on security video as he approached a clerk at the Circle K located at 8971 US 64 on May 19th, around 1:30 AM. He asked the clerk, Nicholas Vitatoe, if he could clean the lot. Marvell Locke occasionally made a few bucks from local businesses doing odd jobs.
Mr Vitatoe tells Mr. Locke to leave, then calls the police and texts his manager. At some point, Mr Locke exits to the parking lot. Mr Vitatoe then says he will not wait for police and will take care of this himself. Mr Vitatoe exits the store and out of camera view. A shot is heard, and Mr. Vitatoe re-enters the store and places a black handgun on the counter.
Responding police found Mr Locke’s body DOA in the parking lot and arrested Nicholas Vitatoe, charging him initially with involuntary manslaughter. He was taken to 201 Poplar and immediately released on his own recognisance.
Mr Vitatoe was indicted on June 3, 2021 for second degree murder, and, on March 22, 2022, he entered a guilty plea to that charge. He has not yet been sentenced as of June 7 2022.
On September 3, 2020, the estate of Marvell Locke filed a wrongful death suit (PDF) against Nicholas Vitatoe, Circle K and others seeking damages. This case is still in progress, and attorney Howard Manis of the Cochran firm declined to comment on June 7 2022.
Authorization of Agency
The above is the affidavit of complaint filed against Vitatoe by MPD on May 19th 2020, showing the original involuntary manslaughter charge. The affidavit mentions that there was an Authorization of Agency (AoA) in force for Marvell Locke at the Circle K premises. The AoA was also mentioned in this News 3 article which was likely informed by the affidavit. In fact, there is no AoA filed against Marvell Locke for the Circle K.
Our AoA database.
We have created an Authorization of Agency database. This spreadsheet (XLSX) contains indexed AoAs from late 2016 to July 2019. This Zip file has the raw AoA data from July 2019 to February 2020, and this Zip file has the raw AoA data from February to August 2020, as received from MPD via FOIA. The AoA for Circle K mentioned in the Nicholas Vitatoe affidavit of complaint does not exist in the FOIA data.
Marvell Locke’s Only AoA
The above is Marvell’s only AoA in the database. It was created in March, 2019 for the Best Western Hotel in the same area as the Circle K and other businesses mentioned. The misspelling of Marvell’s given name as Marvel is common in the police and court documents.
Marvell Locke’s record.
.Police allege in sworn court affidavits and an arrest citation that Marvell Locke had AoAs at Kroger Gas, 9027 US 64, Kroger store at 9025 US 64 and Pizza Hut 8979 US 64. The only AoA on file is for the Best Western Hotel at 8635 US 64. Incidentally, the Pizza Hut is in the same block as the Circle K.
It is easy for police to commit this type of AoA fraud. When the DA’s office sends supporting documents to a Public Defender, they are reduced in size and presented four to a page. With the handwritten scrawl that AoAs are rendered with, it is impossible to make out the detail on an AoA. We have other examples of police substituting AoAs for defendants.
This can be a critical factor in obtaining a trespass conviction and getting longer sentences. For many, an AoA is an entry point to the criminal justice system.
Why did cops target Locke?
While being arrested on 11/14/2019 police allege in yet another affidavit of complaint that Marvell Lock, from the back of Adam Durham’s cruiser, spat in the cop’s eye. Police have a HIV protocol when that happens.
This article, from Law Enforcement Today gives the police viewpoint. They list dozens of Marvell Locke’s infractions and seem to imply that Mr Locke is a career criminal and a fair target for summary execution. It is clear that the police had spoken with local business owners about Mr Locke, including a visit to the Circle K a few days previously. It is easy to think that Nicholas Vitatoe had imagined that the police would not care if he slaughtered Marvell Locke. The police undercharge and his release with no bond did show extreme leniency by the police, and if George Floyd had not been murdered that summer, Mr Vitatoe might be a free man today.
MPD AoA regulations/UPSSOP
We obtained MPD’s Uniform Patrol Station Standard Operating Procedure via FOIA and analyzed those regulations in our blog.
AoA (the police version, there’s also a separate version of AoA at the DA’s office) purports to authorize police to arrest a specified person for trespass without the due process of the Tennessee trespass law, that requires a defendant to be informed he is trespassing and given an opportunity to depart. As such, it is a fast-track to a trespass conviction. Read more about AoA.
The master database is filed in each precinct in its original handwritten form. The procedure is that the property representative informs the subject that she is barred from the premises and will be arrested for trespass on sight. The complainant and the police go to the station where the cop signs to assert that the subject has been informed and that he is witnessing the complainant’s signature.
We audited over 2300 AoA forms and found that 93% of them were invalid because this procedure and other UPSSOP requirements were not followed.
We have seen where MPD substituted the single Best Western AoA against Marvell Locke in three other cases. We have seen other cases like this.
In our recent FOIAs, we found three AoAs on file at Appling station, the precinct covering Marvell Locke’s various police dramas. These AoAs were signed by police and the defendant was left blank. Presumably these were intended to be distributed to business owners, who could sign over the existing police witness’ signature. This would be a clear case of fraud. Incidentally, we have a proven case where this writer’s name was added to an AoA at the Zoo over a several months old police signature. The lack of a proper system, controls and auditing of the AoA apparatus and its previous secrecy makes it prime for abuse.
We have an eyewitness account from an employee at the now-closed Cordova Animal Clinic, formerly at Fischer Steele Rd in the Appling precinct. When the owner complained to the police about a person of concern (not Marvell Locke), a police came, signed an AoA form and told the veterinarian to hang it in the office. This was not a valid AoA because the offender was not notified, the vet did not come to the station, and our database shows that no AoA was filed for the clinic. It is possible that this deficient procedure was used for the missing Marvell Locke AoAs.
Marvell Locke police victim.
Marvell was a poor Black man who was, according to his attorney Howard Manis and his relatives, mentally ill. He had certainly been a problem for local police and business owners, and is easily cast in the role of usual suspect. Above all, he was the victim of evidence tampering by the police, in his previous prosecutions. He did time as a result of several November 2019 prosecutions. He was often a rambunctious presence in many local businesses.
Above all, the tragic case of Marvell Locke shows that the police are not equipped to deal with severely mentally ill people.
Recently we got documents from Memphis Police Department using “Authorization of Agency” as a search key, and we obtained an excerpt of MPD’s “Uniform Patrol Station Standard Operating Procedure”. The extract was very helpful as it outlined the procedures for Authorization of Agency, which we wrote up in our blog.
Authorization of Agency (AoA) is a pair of processes at Memphis Police Department and the DA’s office, which are designed to circumvent provisions in the Tennessee criminal trespass law, TCA § 39-14-405. AoA is designed to enhance public safety by controlling unwanted citizens who access private business property.
We have written extensively about one AoA process, the MPD’s form AA 0306, which is summarized in the most recent blog. We provide links to our blogs and other documents at the end of this piece. We have not previously written about the second process, which is based on signage located mostly in apartment complexes, but we describe the second process here.
We provide the text of the FOIA we received from MPD below, with section headers inserted by us. It is the Uniform Patrol Station Standard Operating Procedure.
AoA UPSSOP Section 1: Definition of AoA
AoA UPSSOP Section 2: Advising the Target of AoA
AoA UPSSOP Section 3: LEO Witness and Complainant signature
AoA UPSSOP Section 4: Filing of AoA
AoA UPSSOP Section 5: AoA Verification for Arrest
AoA UPSSOP Section 6: Arrests and File maintenance
AoA UPSSOP Section 7: Appendices, omitted from FOIA.
About the AoA SOP.
We see numerous problems with the current implementation of AoA. As examples, section 1 confines AoA complainants to businesses only, and there were 112 AoAs (6.6%) for residence owners who were private individuals in our 2018 FOIA.
In section 2, the business owner must advise the AoA target, in the presence of an MPD witness, of the imposition of AoA. There is one alternative procedure provided involving the posting of a notarized affidavit. We received notification, in response to a FOIA request, that there are no such affidavits on file at MPD.
In Section 3, the business owner and the witnessing officer must sign and complete the AoA form at the local police station. The combination of sections 2 and 3 require one three-way meeting which must include the AoA target, which can be anywhere but is assumed to be at the alleged trespass location, and a second meeting and filing which must include the complainant and the original witnessing police officer, and must take place at the local MPD precinct.
“Sir, you will have to give the a verbal order to the individual to not be on the property in the presence of an officer. Then we can fill out the form. You have to have the name of the officer and his IBM number. Then the form is to be completed at the station. If the form is completed before that step it is not valid…”
Of the 45 cases we have sampled, this procedure was not followed in a single instance. We are following up on interviewing additional AoA targeted individuals.
Section 3 also lists a number of data points which must be on the AoA. The majority of the 2,200 AoAs we have seen do not have all these data points, or the officers IBM# as required in the Colonel’s email.
The SOP contains numerous other requirements which are not followed, among them the requirement for annual purging of year-old AoAs. When we obtained 1677 AoAs via FOIA in mid-2018 with readable dates, 358 of them (6.6%) were dated 2016 or earlier and must have been more than a year old, and the 584 FOIAs for 2017 looked like the entire year’s worth of FOIAs.
We also have an email interchange between an attorney for an AoA targetted individual, from February 2017, who had to escalate to Bruce McMullen, City Attorney and City PR Ursula Madden in order to get an erroneous AoA removed. The procedure in the UPSSOP for correcting erroneous AoAs was apparently not applied or did not work, possibly because no-one was aware the procedure existed. This AoA target had to pay an attorney for redress, something not available to everyone.
In summary, it looks like the majority of AoAs on file are invalid because of defective procedures, and we would not be surprised if every AoA on file is defective in some way.
The other type of Authorization of Agency
The MPD AoA form AA0306 is clearly labeled Authorization of Agency and this matches the verbiage in the UPSSOP. The DA’s office frequently refers to another AoA mechanism. This is manifested in the form of signs frequently posted in apartment complexes, which state that the property is posted against trespass by anyone who is not a tenant or their guest. Here’s a Youtube video of Amy Weirich (2:46 minutes) describing these signs as AoA and conflating with the AA0306 forms.
These signs purport to allow the police to arrest an alleged offender without the notice required in the Tennessee criminal trespass law, TCA § 39-14-405.
In order for a premises to be posted under TCA § 39-14-405, the property must be entered in the No Trespass Public Notice List at the Tennessee Secretary of State. We have viewed this page repeatedly between 2017 and the date of writing, 12/1/2019, and have never seen a Memphis address posted in this database. Therefore we assume that all these AoA no trespass signs contravene the State trespass law and are invalid.
We have not yet received data on the use of both flavors of AoA in actual trespass arrests, but we are told, anecdotally, that hundreds of such arrests have been seen, and will post that information when we receive it.
Why was AoA under the radar for ten years?
We could find no public mention of AoA between 2007, when a blogger mentioned it, to 2017 when our FOIA produced the City blacklist, including 43 people on AoAs. We believe, anecdotally, that hundreds of trespass arrests were made, using both forms of AoA.
Only a small population knew about AoA, the AoA complainants, people to whom AoA had been marketed as possible complainants, some of the AoA targets, some MPD police, of which less than 10% actually created AoA forms, prosecutors and public defenders.
When you have secret police processes, you get secret police.
Public Defenders and AoA.
There are about 45 politically targeted individuals, who generally had private attorneys when they interacted with the criminal justice system.
All other instances of arrest for trespass with either flavor of AoA that we know of went through the Public Defender’s office. Sadly, the combined actions of the DA’s office and MPD have severely hampered the PD’s ability to defend AoA arrests.
PD’s workflow for AoA arrests.
Bear with us as we outline the PD’s workflow. When a person is arrested for criminal trespass, they are brought to 201 Poplar or Jail East and booked. Some time afterwards, during bankers’ hours, the defendant will be arraigned. At that time, if the defendant does not have funds for a lawyer, a public defender is appointed. The PD receives the jacket, containing various documents, including an affidavit of complaint and an arrest ticket from MPD, a bond recommendation, criminal history and others.
At this point, the PD may see a small photograph of the AoA document on the affidavit of complaint, which is reproduced at quarter size and can’t be read. So the PD knows there’s an AoA or a posted location but can’t see details. In order to get the AoA form, the PD would have to walk the couple of blocks to MPD HQ at 170 N. Main, go through security and wait at the public records counter on the 7th floor. PDs, who often have up to thirty cases per day, are limited to three police records per day. Restrictions on the data practically available to PDs has been progressively tightened over the years, not least when the MPD records counter moved from 201 Poplar to North Main.
If the PD is to take 45 minutes from their busy schedule, they’ll probably wait until the end of the day and do all the day’s AoAs together. There is not enough time in the day to get MPD records for every case. In most cases, as the defendant probably needs to be released to get to work, cases are settled for time served awaiting trial before the end of the day. First time defendants often accept a misdemeanor record to get back to their daily schedule. This is a problem if they get arrested again, as the trespass offense is taken into account when bail, diversion and sentence recommendations are decided. This is a slippery slope into a possible criminal career. AoA is a gateway into mass incarceration for many.
Hopefully PDs can use some of the information here to question the imposition of AoA in more cases. In the meantime, considering the workload on PDs, it is not surprising that they did not investigate and publicize the nature of AoA while it was under the radar.
Our current interest in AoA stemmed from its use in the City blacklist and the information we developed required hundreds of hours of research. Without the publicity generated by the Blacklist and the ensuing ACLU court case, the public might still be in the dark about AoA.
AoA has been an almost secret police process at MPD and the DA’s office since at least 2007. It has the appearance of having been heavily marketed by various public safety interests in the interim, resulting in heavy usage.
The availability of this secret tool was apparently attractive to the City, MPD and the Zoo when they desired to punish and harass political activists, after which law enforcement lost the advantage of this secret police process.
We believe that the 2,200 AoA targets include about 45 political actors and over 2,100 regular folks, who generally have been unable to mount a criminal defense against the numerous irregularities we outline here.
We are appending a links section as a resource. Anybody who is on an AoA, who has been notified they are not allowed at a certain location, or who has been arrested for criminal trespass where “authorization of agency”, AoA, no trespass signage, or “being on a list” should contact us. We will share your information with some attorneys we are working with, but with otherwise keep your information completely confidential and protected. You can also use our confidential contact option if you have AoA information but wish to be anonymous.
Some of the information in the earlier blogs is inaccurate and was corrected in later blogs. E.g. I wrote that there was no MPD P&P for AoA in 2018, now we know from the current article that it is covered in UPSSOP.
The 2018 lawsuit which ACLU fought and won has produced tens of thousands of pages of documents.
“On March 2, 2017, the American Civil Liberties Union of Tennessee intervened in Blanchard v. City of Memphis, a lawsuit challenging the City of Memphis’ creation of a list of people, including multiple members of the Black Lives Matter movement and other local political activists and organizers, who require a police escort while visiting City Hall.”
ACLU won the case and a court monitor was tasked with supervising changes at MPD. Documents from the case can be found on the ACLU website, the Court Monitor website, and on the City site. PACER contains all the publicly available documents from the case. It requires a free registration and they will bill you after 150 pages in a quarter. There are more documents here.
All those documents
We viewed the wealth of documents produced by the trial as the added bonus, over and above the effects of the judgement. The documents offer a new and unique insight into the corrupt nature and practices at MPD. But who had time to download and read through tens of thousands of pages of dry legalese?
To provide a narrative, and to avoid further torment to people already maligned in the police material, I provide a personalized romp through the papers focused on what they say about me. The other people mentioned have given permission to use their mugshots.
The Saul Alinsky Thread
From Plaintiff’s Motion for Summary Judgement page 177. This is from a section titled “Blue Suede Shoes Post-Investigation Follow-up”, about the August 2016 Graceland police riot. I was not at Graceland for either of the two protests that July and August.
And I never read the Alinsky book. But facts are not a requirement for a Joint Intelligence Bulletin.
These JIBs were circulated daily to law enforcement and to commercial firms in the Memphis area. They have resulted in all sorts of problems to the people featured, including difficulty in finding employment.
From Plaintiff’s Motion for Summary Judgement page 186. This is from a section about the July 2016 Bridge protest. I wasn’t at this protest either. I was out on bail, with a long court date, from the Memorial Day Greensward arrest and I was avoiding protests on the advice of my attorney. I have never met Dana Asbury, and I knew Spencer Kaaz and Maureen Spain casually from that Greensward protest. We did not embarrass MPD and pit them against the citizens of Memphis. MPD did that to themselves.
Paul Garner’s Book Review
This post by Paul Garner of Mid South Peace and Justice Center was featured in an email by Det. Tim Reynolds AKA Bob Smith. It is from Plaintiff’s Motion for Summary Judgement page 213. Garner posted a book review, 58 people “liked” it and Reynolds included the Facebook avatars and names of all 58 in a JIB. JIBs were widely circulated among law enforcement and a list of Memphis businesses.
This sheds light on the previous two images, both showing quotes from the Alinsky book. The thing is, I have never read the book. I ordered the book in August 2018 just before the trial, when I saw the above material. While in the witness room during the ACLU trial, I made a point of carrying it around. But I was never able to finish it. The writing is poor and the insights trivial.
As this article in Vox, by Dylan Matthews explains, Alinsky was literally demonized by the far-right. “(Ben) Carson explained (erroneously), Alinsky dedicated his book Rules for Radicals to none other than … Satan himself!”. The book was dedicates to Alinsky’s mother. Because Hillary Clinton wrote a thesis about Alinsky, and because Rudy Giuliani attacked Barack Obama for being “educated in the Saul Alinsky methods.” Glenn Beck, Newt Gingrich, Andrew Breitbart, Rush Limbaugh, Monica Crowley and Bill O’Reilly repeatedly ranted about Alinsky.
Bob Smith AKA Tim Reynolds is using coded far right ideology when they invoke Alinsky. Never mind it was just a few people reading a book review, as protected by the First Amendment.
The truth of the matter is that Saul Alinsky was an old, non violent white man and we old, non violent white men are harmless and impotent.
At the Greensward.
Bob Smith friended me on Facebook in May 2016, the same month as Spencer Kaaz. Prior to this, Bob Smith friended Tami Sawyer, Paul Garner, Ian Jeffries, Bradley Watkins and Athena Palmer between July and November 2015. This time coincided with the killing of Darrius Stewart, the campaign to restart CLERB and Garner’s false arrest for photographing police at Manna House.
This is from Plaintiff’s Motion for Summary Judgement page 178, in a section titled “Blue Suede Shoes”, a reference to the Graceland protests, which I did not attend. The only group I was a member of at the time was Citizens’ Climate Lobby, which engages members of Congress on climate change policy. That and the Greensward constituted my ‘radical agenda’.
The “reliable source” was far-right police infiltrator Tim Reynolds AKA Bob Smith.
This is from Plaintiff’s Motion for Summary Judgement page 179. It contains a lie. I spent the entire morning taking photographs of the protest and the events preceding it. I have 211 photos to prove this. I never sat down or blocked Zoo officials, as the arrest ticket confirms. Photographing police activities is protected by the first amendment and MPD photo policy. At no point did any Greensward protest prevent a single visitor from accessing the Zoo, and Zoo attendance was up in the 2016 fiscal year ending June 30th 2016. In fact, the Free Parking Brigade helped visitors find free parking in the area surrounding the Zoo and probably increased attendance.
This is from Plaintiff’s Motion for Summary Judgement page 180. I was arrested while I was “at the rear of the police van, attempting to take pictures”. Bizarrely it goes on to say that I was arrested because the crowd started shouting after I was arrested.
In any event, my case was dismissed and expunged so public officials should not be using these records and mugshots for any reason.
MPD used a conspiracy theory inspired by far-right media to imagine I and other dissidents were in some radical organization inspired by the hated Saul Alinsky, using the Zoo protest as a front. They don’t seem to get it that saving a prime and priceless park is a legitimate end in itself.
In fact, contemporary police sources reveal, Maureen’s and my arrests were due to a police error. All our activities on the Greensward were protected by the First Amendment.
Before my arrest, I cared about the environment and a patch of precious City grass. Since being forcibly introduced to the workings of the criminal justice system, I have spent some time exposing its internal workings. I have never been radicalized, as I work within the system and under the protection of the first amendment, but I have gone from a few hours per week in the Park to full time exposing corruption. I did not choose MPD, they picked me. And dozens of innocent people who care about our city.
My role in the Greensward
I was active in the Greensward movement. I worked with the media operations, photographed events at the park; helped analyze the Zoo finances and distances traveled by Zoo visitors; and critique the Zoo’s Economic Impact Study. I organized the Chuck Brady Limerick Competition and various weekend activities to help get crowds to the park in April and May. I am admin of “The Fringe Element” facebook group.
The Greensward arrests.
Certain police sympathizers in the Park Protectors (Greensward) movement objected to comments I made in the social media. I wrote about the massive police presence on April 2nd and 3rd when 75 officers, with armored vehicles, helicopters, horses, three paddy wagons and a command center, threatened peaceful park users at a cost of $38K.
I also wrote about the Latino festival in early May which was attended by TACT officers and their Lenco armored vehicle. I also made other first amendment protected comments about MPD and police in general.
My work in the Greensward protests was only about the Greensward protest.
I have never been a police fan, and the police intimidation on the Greensward did not dispose me more kindly. Growing up in Northside Dublin, we knew that “all pigs are scum” and I repeated this bon mot frequently. After interacting with MPD I now realize that the Garda Siochana of my youth were not so bad.
In 2016, police sympathizers were highly mobilized in reaction to the 2015 City actions on reducing retiree benefits and after MPA president Mike Williams lost his run for Mayor. These cop fans infiltrated the Greensward movement.
Kathy Hurley, a police fan and Mike Williams’ former campaign manager, published a post with my photo and shared it with the MPA facebook page, saying that I intended to attack police at the Memorial Day protest, which was a complete lie. Due to my immigration status I decided not to sit down at the protest and instead spent the morning taking photos. Some cops apparently noticed me photographing the paddy wagon, recognized me from Hurley’s photo, and jumped me six or seven minutes before the end of a notice period that MPD Major Reynolds had given in an ultimatum.
Police fans had organized a “cop stop” for the protest. The idea was to bribe the police at the protest with doughnuts so they would not intervene. This hare-brained idea was countered when the police brass ordered their members not to attend the cop stop. They made an exception by appointing Richard Rouse as “liaison” to the park protectors. Rouse dispensed doughnuts, schmoozed with Park Protectors all morning, reported what he found to police brass and later arrested Maureen Spain. This demonstrates the futility of community members engaging with police, even with doughnuts.
We spoke to people knowledgeable about MPD regulations, who said that, if the police suspected I had a weapon, they should have jumped me, patted me down, and cut me loose. Instead, they over-reacted, disobeyed Rudolph’s order to wait out the deadline, and retaliated.
In short, I was arrested because police and their supporters objected to my first amendment protected speech. It is legal to criticize the police.
Bob Smith appears.
Bob Smith friended me in May 2016. After the May 30th arrests, the Park Protector groups were in uproar and many of them wanted more direct action. As admin of “The Fringe Element”, I was worried about some people, including Bob Smith, who were openly advocating more direct action. Not wanting to have people planning things in an open group, I created a secret Facebook group on June 5th entitled “Kessler Associates” and added Bob Smith and about six other people to the group.
It had been standard practice among Park Protectors in April to internally manage any direct action, because we were fighting a PR battle in the media and it took six or seven weeks to get the media mostly favorable to us. We had a group of marshals trained by Mid South Peace and Justice Center and took militants off-line into secret groups to let off steam. This kept the media focused on moms and kids with balloons, and the like.
Kessler Associates discussed some possible actions, and was mainly a way for people to let off steam. The main actions discussed were a possible “slow drive” to jam up traffic already bottlenecked at the Zoo parking lot entrance. These plans require secrecy to stay legal. It is legal to drive up to the Zoo window and count out 500 pennies, but if it is part of a plan to obstruct the entrance to a business, maybe not. A vehicle might break down in traffic and hold things up quite innocently unless it is planned. In the event, this group broke up on June 15th without executing any action, because operational security had been breached and we could not maintain plausible deniability.
Tim Reynolds literally tried to make a Federal case out of an idle comment about hacking the Zoo. I did not say that I had recruited two hackers, because I hadn’t, and. in fact, there were no Federal or any other indictments arising from this group. No crimes were committed during the 10 day lifetime of Kessler Associates, and no protests were organized. No protests were needed because news coverage of the Memorial Day arrests had gone international during this time. Our media operation was fully engaged.
I was aware of three other secret groups at the Greensward, none of which were infiltrated by Bob Smith. Two of these group hosted early discussions about the Memorial Day protests, but the actual logistics were organized in physical meetings. In fact, all three groups were dominated by police sympathizers and I was thrown out of them all more than a week before Memorial Day because I objected to the “Cop Stop” plan on the basis that no good can come from consorting with police.
The A-list discovered
Officer Polk, in the above memo, tried hard, after the fact, to create an offense to justify his action in requiring me to have an escort in City Hall. The conversation I had with George Boyington was about the ineffective security at City Hall and how a determined effort to bring a weapon into the building would defeat the security. The conversation with Boyington was overheard by Ursula Madden, the Mayor’s propagandist, but constituted free speech as no crime was contemplated and no provision of the First Amendment was violated.
There were no previous actions or threats towards the Mayor, and I was on the list because I had been falsely arrested at the Greensward because the police did not like my previous First Amendment speech directed at police.
As I wrote immediately after this notification, I was told I needed an escort because I was “on a list”. When I asked why I was on the list, Lieut. Bonner was summoned and explained it was “because of the Mayor’s house”. When I pointed out that I was not at the December 19th 2016 “Die-In”at the Mayor’s house, Bonner said “Then it was something you wrote on social media”. As everything I wrote on social media was first amendment protected speech, I was listed and was being sanctioned in retaliation for first amendment speech.
I went home and wrote contemporary notes of the interaction, submitted an open records request for the list, notified the media and the rest is history. Bruce Kramer called a meeting of blacklistees in his office, the Nashville office of ACLU became engaged and Blanchard et al, thanks to brilliant litigation by ACLU and a blustering defense by the City legal hacks, gave the people of Memphis the greatest legal win against the City since the original 1978 Kendrick consent decree.
We saw how MPD, inspired by alt-right ideology, decided that literature fans were enemies of the state, created JIBs which slandered individuals and shared them with potential employers, accepted lies from their sycophantic supporters, breached training and discipline to arrest protesters without cause, lied about alleged crimes and escorted political opponents in City Hall in another breach of the First Amendment.
Mike Rallings sent an email to all his members in February 2017 explaining the first amendment. He said that criticizing police is protected by the first amendment. You’d think that the basic constitutional law of the nation would be the first thing they’d teach recruits at the academy.
I was lucky. I was able to insulate myself against MPD slander by retiring a little early, but in the years following, dozens of City political opponents were followed, surveilled, arrested and slandered in JIBs circulated to potential employers. Their worst “crimes” were using the First Amendment to assemble, march and speak out against injustice. Harm was done to many young lives.
We have another Authorization of Agency case to share, this time that of Dan Rosson, against whom Memphis Animal Services, in collaboration with City Chief Operating Officer Doug McEwen, have created an AoA. Once again, the City has used AoA to silence a political opponent.
AoA and the City Blacklist.
Authorization of Agency first came to public attention when the City’s Blacklist was published on half a dozen AoA forms. Placement on Jim Strickland’s AoA was purportedly in retaliation for a December 19th Die-In action at Strickland’s, but it contained over forty activists’ names, far more than the ten or so protesters at that action. The list was correctly interpreted as a City action against a list of activists which MPD was managing in contravention of the 1978 Kendrick Consent Decree. The ACLU took the City and MPD to court and won.
AoA used against Zoo critics.
We publish some research on Authorization of Agency, compiling almost 1,700 AoA records obtained from MPD via Open Records Request. While 84.9% of the AoA victims were African Americans victims of police racism, a few, featuring Hunter Demster, Maureen Spain and myself were clearly in retaliation by the Zoo and MPD for harmless political speech. In my case, I was on two AoAs, one issued days after my 2016 arrest at the Zoo, which was judged by the courts to be a wrongful arrest, dismissed and expunged. My second Zoo AoA was illegally created by forging my name to an existing, pre-signed AoA with Hunter Demster, after we uneventfully visited the Zoo. Again, this was an act of political retaliation, supported by MPD files collected in violation of Kendrick.
MPD working for private employer with AoA.
Last week, we wrote about Rodney Fisher’s AoA at DHL/Nike. In this case, Mr. Fisher’s employer used MPD to inform him that he had been fired, in retaliation for political speech at his place of employment. The MPD Lieutentant Colonel who ordered the patrolman to inform Mr. Fisher was quoted as saying he had been targeted for non-existent “threats” made via social media, indicating that Mr. Fisher’s first amendment speech on political subjects had been investigated, and that a social media search had been performed by MPD.
New: Dan Rosson’s AoA
Now, we have a new AoA of concern, against animal activist and dog rescue volunteer, Dan Rosson. In this case, city employees at Memphis Animal Shelter and City Chief Operating Officer, Doug McGowan, were behind the retaliatory use of AoA.
Dan Rosson was a long-time volunteer at Memphis Animal Services. He was a dog foster, caring for shelter dogs at his home, and performing various tasks at the shelter. He photographed dogs and helped document their temperaments among other valuable services that saved money for the City and the lives of many dogs scheduled for euthanasia.
Mr Rosson recounts an incident at a Collierville vet, when a dog, which had been secretly labeled as potentially vicious by MAS. attacked another dog. Rosson subsequently, at an April 2018 MAS advisory board meeting, called for volunteers to be warned about dogs labeled as problematic. Mr Rosson, in the following months, also shared a long list of administrative issues at MAS that he wanted addressed.
On February 13th 2019 Mr Rosson posted on Facebook about some critically ill pups who needed urgent veterinary treatment. He had been banned from transporting animals and no-one else was available to drive the pups to the vet.
Mr Rosson, as a proponent of the humane treatment of animals, was upset at the unnecessary suffering caused by the delay in the treatment of the canines.
On February 14th, Mr Rosson circulated a petition to volunteers and others, and engaged in first amendment protected speech critical of the City administration of MAS. The petition asked the City to promote due process and prevent First Amendment abuse by MAS officials, naming MAS director Alexis Pugh.
On February 18th, Mr Rosson posted that City Chief Operating Officer Doug McGowan had allegedly called Rosson’s former employer, University of Tennessee. Mr Rosson is retired from UT but had availed of the customary policy of allowing retirees to continue using their UT email. UT canceled Mr Rosson’s email account with resultant chilling effect on his ability to engage in free speech on this issue.
On the 20th, Mr Rosson received some Open Records Requests information from the City attempting to clarify the MAS policies on administering volunteers and asking for records on his own case, and the petition was delivered to the Mayor and City Council. That was the day the AoA was signed by Alexis Pugh.
On February 21st Mr Rosson was informed that he would be arrested if he set foot at MAS and was informed of other charges made by Pugh against him. These additional charges might constitute illegal acts but were not recorded (as sometimes happens) as marginal notes on the AoA. This suggests that MPD was maintaining other documents relating to Mr Rosson. This implies the existence of an investigation, which, being likely to uncover political information relating to Mr Rosson’s communications with the City and MAS, should have been approved by Police Director Rallings pursuant to the Kendrick Consent Decree, which had been well aired in Federal court by this time.
The accusations made by MAS management, if they could be substantiated, should have resulted in a police investigation. Mr Rosson has not been charged with any offense relating to alleged incidents at MAS.
We believe that Mr Rosson’s case is an clear example of AoA being used by MPD to harass political opponents of the City, which is a pattern we have been seeing lot of.
Note on Authorization of Agency.
If you are told, by MPD or property management, that you will be arrested if you set foot on a given property, ask if you are on an AoA.
If you are on an AoA, you can get the document for free via the City Open Records portal. You need to specify a date range, which should be a few days before and after the date you are informed. You need the address of the premised, and also the MPD precinct and ward in which it is located, which you can look up in the link.
Sometimes AoAs are placed without informing the victim. In this case you find out about it at some later point, when you visit the premises. In that case, figure out when the AoA was placed and straddle that date in your open records request.
Share your AoA adventures with us. If you feel that the AoA is the result of an MPD investigation not approved by the Director, or if its deficient due process is being used to threaten or intimidate you, or to impede your constitutional rights, contact the MPD Court Monitor. Read our AoA information. If you are arrested for trespass on an unposted location without being given notice to depart, share this information with your attorney.
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 did some preliminary analysis of the data and there are updated spreadsheets (CSV, ODS, XLSX). The update includes some address corrections and the addition of a business category field.
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; CSVXLSXODS.)
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.
This week has been a game changer. Memphis history will forever be divided into the pre-ACLU era and the post-ACLU era. MPD in particular is in crisis, and, because of role of public safety in our local elections, the crisis extends into the political sphere.
The trial itself.
We saw a steady stream of MPD brass take the stand and be defensive. The City strategy has been to try to make the police look reasonable, and to paint the activists as crazy fools. This strategy plain failed, as Paul Garner, Elaine Blanchard, Earle Fisher and Keedran Franklin presented well on the stand. It is notable that the City did not send Jim Strickland or any of the”public safety” advocates to defend their police buddies.
The defense cut their losses on Thursday and pulled the plug on trying to discredit more activists or putting more police on the stand. Essentially, they accepted defeat after a very poor display of legal skills.
MPD is not a monolith. It has leaders jockeying for position as the next director, a large number of disaffected members who are still disgruntled over pensions and benefits, a degenerate and poorly led MPA and a sizeable contingent of out and out racists who are chafing at being led by an African American director.
We can expect instability at MPD. At this point I see little benefit in stirring the pot at MPD. We’ve stirred. Stirring done.
At this point we need to be concerned that the police will revert to form and lash out at civilians and activists. We suggest extreme care in interactions with police as we await the verdict from the trial. We have no need to provoke further reactions from MPD. We’ve already unleashed the nuclear option.
Strickland’s administration has not been watching the backs of their police. He has been declining to comment on the sub-judice proceedings. We expect this to continue.
In the meantime, the hitherto solid eight or nine vote pro-police Council block is already showing signs of fragmenting. Joe Brown and Edmund Ford are term limited and won’t need to expend political capital on defending the police.
Berlin Boyd is up for re-election. He has been at odds with the Kemp Conrad knee-jerk brand of police support, voting against Conrad in the August 2016 marijuana ordinance. Boyd knows that he needs to put some distance between himself and the law and order lobby. He’s been reaching out to certain activists with some truly strange proposals.
Jamita Swearengen, as the new chairman of the Public Safety Committee, has been conventionally pro-police, generally following the MPD’s COP community policing line. She made a speech at CLERB extolling Blue Crush and the deployment of 490 new spycams, which City Council approved a budget of $1.5M for on July 10th.
Patrice Robinson has not been saying a lot about policing.
Of the white Council members, all part of the Caissa group, the more extreme police fans like Kemp Conrad and Reid Hedgepeth, with Bill Morrison, are term limited. We might see some posturing from them. Ford Canale remains a cypher, although he rang the Public Safety bell in his August election campaign, apparently with less effect than his predecessor.
We don’t see much incentive for Council members to expend political capital on defending police prerogatives. In fact, we think some of the previous pro-police coalition, especially Berlin Boyd, are already maneuvering to create some advantage for themselves.
Activists have ling sought a strengthening of CLERB powers. CLERB needs subpoena power, and the ability to make binding recommendations for disciplinary actions and policy and procedure changes. Look to Memphis United, fresh from Paul Garner’s performance on the witness stand, to be making proposals. In addition, it appears that the administration has successfully sabotaged the ability of CLERB to post documents on its own website and on the City archive site.
It’s hard not to see the canny Garner taking advantage of MPD’s predicament.
Mike Rallings, as the officer who presided over the decline in MPD political interference, and because of his unconvincing defense of his policies on the stand, is damaged goods. He has been left dangling by his political masters. There is no question that he can survive past the election of the next mayor in 2019. He either takes control of his fate and resigns, or the political upheaval that now starts will result in his firing.
Rallings has been fully vested in his MPD pension plan for about a year.
It seems very clear that a new director can’t come from the culturally compromised MPD. The next Police Director must be chosen on the basis of a proven record of community policing. The internal candidates who have been preened as Ralling’s successor are infected with the racial disease that infects the force and will be rejected.
Our suggestions for police director include Anne Kirkpatrick, Oakland CA police chief. She applied for the job in 2016. Another is John S Thompson, Camden NJ police chief.
The 2019 City elections
The current mayor and most of City Council were elected in 2015 with dog-whistle campaigns, evoking public safety with racial coding to get elected. The dog whistle was already losing its effectiveness. J Ford Canale blew the dog whistle in the Super 9-2 election and his vote was down 25% on Philip Spinosa’s 2015 performance. David Lenoir used the dog whistle in the County Mayor election and was convincingly defeated by Lee Harris.
Incumbents will be forced to run on other issues. Insurgent candidates will focus on poverty, economics and policing, where incumbents have a dreadful record. Strickland has not been brilliant at the basics. The Caissa Seven have been exposed as the next best thing to a political conspiracy.
Expect a lot of surprises as incumbents and challengers jockey for position and make economic arguments. Expect opponents to rally around retaining IRV in the December referenda, and issues like EDGE, economic development, energy policy, CLERB, policing and poverty to be well aired in the election runup.
Policing has been the lynch-pin of Memphis politics, especially in the last election cycle. The pin has been pulled from this grenade.
People need to be very careful out in the streets.
In the halls of power, expect surprises. 2019 will be fought and won on real policies, not the stalking horses of yore.