In our most recent post, we revealed the extent of MPD’s Authorization of Agency (AoA) program, inspired by Memphis Shelby County Crime Commission (MSCCC).
We saw the racial disparity in the initial AoA post. The profiling nature of the scheme, with seven times (84.9% vs 12.3%) the number of Black versus white victims of AoA is confirmed.
We broke down AoAs by the year the initial AoA was signed. 2018 is low because only half a year of data was collected. Years 211 through 2016 are incomplete because we asked in our FOIA for all AoAs between December 1st 216 and July 9th 2018. All precincts but one simply sent all their AoA data rather than selecting the data range we asked for. In addition, we noted many AoAs which were signed on a given date and had additional lines added over the same signature and date later. We have not quantified this factor as of yet but we think it will skew a couple of percent of the dates earlier.
We adjusted the yearly graph by doubling up the 2018 number to estimate a full year, and we added 15% to 2016 and earlier to account for the number of AoAs missing in our sample.
The graphs look similar. From small beginnings in 2011, the scheme grew to about 240 in 2014, then took a big jump to 665 in 2016 and plateaued out to around 600 each in 2017-2018.
We need to look for the impetus behind the 2014 and 2016 bumps. Most likely, some form of marketing or promotional assets were assigned to the program to cause these bumps. We’ll also submit another ORR to obtain the missing data.
We created a new field in the spreadsheet for business category and ran this report. The biggest category is apartment, which also includes mobile home parks, condos, retirement communities and townhouses.
The dominance of this sector may be the result of “Operation Safeway” which had a focus on apartment managers. The majority of these had a just a few AoAs, but complexes like Greenbrier with 48 AoAs and a dozen or so with double digits stand out. Clearly a number of apartment managements embraced the scheme enthusiastically.
The retail sector is largely a handful of AoAs in each store. All branches of chain stores are included. Three chains of dollar stores (Family Dollar, Dollar General, and Dollar Tree) had a total of 38 AoAs, which probably reflects the dollar stores’ well known skimping on security staff. Other chains with large numbers includes Walgreens with 24 and Kroger with 17. Otherwise, few retailers had more than three or four per location.
We think that, like with the apartment sector, that the heavy retail users had an internal policy to use AoA while the light users were probably recruited by police.
The food sector includes all vendors of prepared food and alcohol by the drink. The chains with most branches are the biggest offenders, and CiCi’s Pizza in Poplar Plaza’s 17 AoAs were associated with a well-publicized disturbance at the venue. We know that Operation Safeway targeted food establishments in certain areas, but we think that most of the rest may have been instigated by MPD, including the CiCi’s incident.
The hotel/motel sector includes hotels, motels and boarding houses, has a few stand-outs, probably related to prostitution. The manufacturing sector, though small, is dominated by Smith and Nephew who initiated 85 of the 100 AoAs. This is an anomaly which probably reflects a decision in management to use MPD as part of its security apparatus.
The gas sector looks very much like retail, and when you eliminate the effect of supplier chains like Shell or Exxon, not much stands out.
Public facilities include the downtown MATA terminus, with 24 AoAs and three at the Zoo. We talked about the Zoo political blacklist in the original AoA post. We dispute the legality of public entities barring members of the public.
Churches banned 37 people. It sounds unchristian to us to put people in the system. Even worse, schools had 35 AoAs, and we cannot envision a world where young people can be legally barred from education, or even where a school would involve the police in its disciplinary process.
We see some high-frequency users of AoA. These AoAs are probably due to business policy and may have been influenced by Operation Safeway in some way. The vast majority of AoAs have the potential of being instigated by police, including a handful where we know the case history.
We will follow up with additional analysis, including enriching the data and sampling some case histories to determine the marketing initiatives that shape the AoA usage curves.
We’ve been hearing about MPD’s Authorization of Agency (AoA) process. It surfaced in the media during the A-list controversy, where the actual blacklist was on form AA 0306, the Authorization of Agency form. We also wrote about a couple of Park Protectors who featured on AoAs at the Zoo.
What is Authorization of Agency (AoA)
Authorization of Agency is generally accepted term in real estate law, where it allows an agent to sign property documents in lieu of a principal.
Some police agencies have the concept of authorization of agency, the San Diego PD being an example. In the case of all police agencies we could find, the authorization of agency is a blanket measure against all trespassers, so it’s similar to posting your property.
MPD’s AoA is different. It specified the property, but also has one or more individuals who are barred from the property. This is unique to MPD’s version of AoA.
Normally, trespass does not occur, in the case of property that is not posted, until an accused person has been informed that she is trespassing, and is given time to leave the property.
The legal theory behind the AoA is that the persons listed has been informed that they will be trespassing without further notice if she enters the property again. It supposedly authorizes the police to act as an agent of the landlord in giving notice.
AoA is also promoted by Shelby Co. DA Amy Weirich as part of Operation Safeway. Anecdotally, we hear that it is used against the homeless, by apartment complexes and by businesses who seek to prevent “undesirables” on their premises. The data tends to confirm this.
Our Open Records Request.
We submitted an open records request for all AoAs filed since December 1st 2016, and received about 200 files containing over 1800 PDF forms, many of them older than December 2016. Most precincts sent all their AoAs. We think we have over 90% of AoAs.
As can be seen from the chart, there were 1697 unique AoAs in the data, and race was identified in all but 75. 84.9% of listed persons were Black and 12.3% white, with a couple of percent Latinx and a few Asians. African Americans are over-represented by a factor of 350% compared with the demographics. There are seven times the number of Black people over whites.
The original map can be seen on Google Docs.
Click the “Map” tab to view the interactive map, and the “Rows” tab shows the data, with the source field clickable to go to the source PDF.
The collated data table is available on Google Docs, as a comma-separated CSV file, Excel XLSX and OpenOffice ODS files. These files also contain the name of the barred person, a clickable link to the source .PDF and the page number to search within this PDF. (Updated 9/11/2017: updated spreadsheet with corrections and added business category field; CSV XLSX ODS.)
The map shows a large concentration stretching through downtown, Midtown, Orange Mound, Parkway Village and Hickory hill, with some outliers in Raleigh and Frayser. Most of these places are where the races mingle as in downtown and midtown, or in transitional areas where demographics are changing. But the vast majority of AoA listees are African American.
How AoA is supposed to work.
The forms are filled in by hand by the property manager and are to be witnessed by a police officer. They are maintained in the original form via scanning to .pdf. They are apparently kept in hard copy folders by ward which are carried in police cars. Many of the forms have a three digit ward number written near the top of the form. The data are accessed by manually searching through the forms in the book.
As manual, hand-written forms, there are no controls on handwriting, spelling or general accuracy. Many entries are hard to read, either because the original script is undecipherable or because the documents have been scanned, faxed or copied many times.
Many of the forms have additional data, such as sex, weight, height, and marginal notes with drivers license numbers or scanned licenses, phone numbers, addresses, behavioral notes, details of alleged offenses, car tags or descriptions. DL numbers, Social Security numbers and photos are redacted. Access the original documents to see additional data.
Although some property managers keep the forms on hand and initiate the application, the suggestion to file often comes from a police officer.
Problems with AoA administration.
The forms state that the complainant has notified the subject that they are not permitted on the property, but we have many instances where the subjects were not duly notified, and there is no checking or control on
- Fergus Nolan and Maureen Spain are on an AoA at the Zoo from 31/5/2016 but were not notified, see example.
- Hunter Demster was placed on an AoA on 9/28/2017 and not notified.
- Up to 12 protesters at the Mayor’s house die-in from 12/19/2016 were placed on an AoA, and an additional 40+ people who were not at the die-in were also placed on the “A-list” AoA, but only Keedran Franklin was notified, and not by Mayor Strickland, the complainant, but by MPD plainclothes police.
Lack of notification of being on an AoA can expose the subject to arbitrary arrest for trespassing while unknowingly being listed on the property.
The “protection” afforded a property owner by AoA is similar to an order of protection, in that it prevents an subject from approaching a complainant while on her property, but AoA does not embody the same opportunity to legally challenge the listing. AoA may be viewed as an attempt to bypass the safeguards embodied in the Order of Protection process.
The AoA process is not documented in MPD’s P&P manual, and has no maintenance or purge process. Conditions attached to the AoA listing, such as limited duration of the listing, cannot be enforced. We have examples of AoAs which were supposed to have limited one-year duration still being on file after many years. The AoA my still be in effect after the property is transferred to another owner.
The forms are supposed to be signed by the complainant and witnessed by an MPD member. We found numerous instances of missing signatures of both types, and signatures that were “witnessed” on a different date to the original signature.
We also found numerous instances where a duly signed and witnessed AOA form had additional names added over the original signature, which is a falsification of official records, as the purported signature and witness do not apply to the subsequent changes. We have instances where both the original form and the updated version are on file, and also instances where later names were added in a different hand to the original list. Forms should have unused subject lines crossed out to prevent subsequent additions.
From personal experience, this example illustrates several of the problems with AoAs. On 5/31/2016, the day after their arrest at a Greensward protest, this AoA (PDF, see page 7) was created for Maureen Spain and Fergus Nolan, without notification. Their drivers license numbers were provided to the Zoo by MPD for this purpose, in violation of open records laws, which requires DL numbers to be redacted before sharing with members of the public.
Fergus Nolan unknowingly visited the Zoo on at least three different occasions in 2017. On one of these visits, he was with Hunter Demster, when both were asked to leave. Subsequently, on the 28th, an AoA was created for Hunter Demster, who was not notified.
During the incident described in our February blog, the police were seen working on some papers. Once again, for at least the fourth time, they failed to find the existing AoA for Fergus. The police added him into the existing AoA for Hunter. The two versions are shown above, where the second line was added in a different hand.
This illustrates what we think are common problems with AoAs. They are frequently altered to add more names, making the witness signature fraudulent. Subjects are often not informed of their inclusion on an AoA, making them subject to arrest if they re-enter the listed property unawares. The system is ineffective. Fergus Nolan’s 5/31/2016 AoA was not found on four separate occasions. In addition, the police often add confidential information to the AoA including driver’s license, social security number and photos, which are required to be redacted before sharing with members of the public, and the complainant gets to see this information.
I’m not a lawyer. AoA form AA 0705 is another version of the form, and some are present in our document cache. It cites TCA 39-3-1201, which was repealed, as the authorizing statute. These AoA forms are still active.
TCA 39-14-405 is the successor statute to the repealed trespass measure and it does not mention AoA or describe its mechanism. We have consulted attorneys who believe that the process is not legal, but there has not been a legal challenge to date.
Due Process Issues.
As there is no formal record keeping system for AoAs, and as there are no regulations in the P&P manual, the records are chaotic.
There is no judicial oversight, means of correcting, changing data, purging outdated records, or appeal process.
We saw AoAs as old as 2011, and children as young as eleven listed, with no mechanism for parental involvement.
We saw one situation where the same policeman hawked the same AoA against and individual to four different businesses in an area, suggesting that individual police have a lot of latitude in applying this sanction.
The quality of the system, in terms of data accuracy, legibility, efficient access and data maintenance procedures is rock bottom.
We are aware of several AoAs which have been removed fro the database. These include the original AoA signed in January 2017 for the December 19th die-in, which formed the basis of the A-list. Also missing is a December 31st for Malco theater which had the names of Keedran Franklin and other CCC members who gave out free theater tickets. The deletions we know about occurred after political pressure was applied.
AoA is racist in implementation, has no legal basis, has no checks and balances, is unwieldy, capricious and ineffective, violates due process and has been used as a weapon by MPD officers against the weakest members of our community.
It is questionable if a police force can act as the agent of property owners, in violation of the State trespass law, without compromising their oath to uphold the law.
It needs judicial intervention.
This week has been a game changer. Memphis history will forever be divided into the pre-ACLU era and the post-ACLU era. MPD in particular is in crisis, and, because of role of public safety in our local elections, the crisis extends into the political sphere.
The trial itself.
We saw a steady stream of MPD brass take the stand and be defensive. The City strategy has been to try to make the police look reasonable, and to paint the activists as crazy fools. This strategy plain failed, as Paul Garner, Elaine Blanchard, Earle Fisher and Keedran Franklin presented well on the stand. It is notable that the City did not send Jim Strickland or any of the”public safety” advocates to defend their police buddies.
The defense cut their losses on Thursday and pulled the plug on trying to discredit more activists or putting more police on the stand. Essentially, they accepted defeat after a very poor display of legal skills.
MPD is not a monolith. It has leaders jockeying for position as the next director, a large number of disaffected members who are still disgruntled over pensions and benefits, a degenerate and poorly led MPA and a sizeable contingent of out and out racists who are chafing at being led by an African American director.
We can expect instability at MPD. At this point I see little benefit in stirring the pot at MPD. We’ve stirred. Stirring done.
At this point we need to be concerned that the police will revert to form and lash out at civilians and activists. We suggest extreme care in interactions with police as we await the verdict from the trial. We have no need to provoke further reactions from MPD. We’ve already unleashed the nuclear option.
Strickland’s administration has not been watching the backs of their police. He has been declining to comment on the sub-judice proceedings. We expect this to continue.
In the meantime, the hitherto solid eight or nine vote pro-police Council block is already showing signs of fragmenting. Joe Brown and Edmund Ford are term limited and won’t need to expend political capital on defending the police.
Berlin Boyd is up for re-election. He has been at odds with the Kemp Conrad knee-jerk brand of police support, voting against Conrad in the August 2016 marijuana ordinance. Boyd knows that he needs to put some distance between himself and the law and order lobby. He’s been reaching out to certain activists with some truly strange proposals.
Jamita Swearengen, as the new chairman of the Public Safety Committee, has been conventionally pro-police, generally following the MPD’s COP community policing line. She made a speech at CLERB extolling Blue Crush and the deployment of 490 new spycams, which City Council approved a budget of $1.5M for on July 10th.
Patrice Robinson has not been saying a lot about policing.
Of the white Council members, all part of the Caissa group, the more extreme police fans like Kemp Conrad and Reid Hedgepeth, with Bill Morrison, are term limited. We might see some posturing from them. Ford Canale remains a cypher, although he rang the Public Safety bell in his August election campaign, apparently with less effect than his predecessor.
We don’t see much incentive for Council members to expend political capital on defending police prerogatives. In fact, we think some of the previous pro-police coalition, especially Berlin Boyd, are already maneuvering to create some advantage for themselves.
Activists have ling sought a strengthening of CLERB powers. CLERB needs subpoena power, and the ability to make binding recommendations for disciplinary actions and policy and procedure changes. Look to Memphis United, fresh from Paul Garner’s performance on the witness stand, to be making proposals. In addition, it appears that the administration has successfully sabotaged the ability of CLERB to post documents on its own website and on the City archive site.
It’s hard not to see the canny Garner taking advantage of MPD’s predicament.
Mike Rallings, as the officer who presided over the decline in MPD political interference, and because of his unconvincing defense of his policies on the stand, is damaged goods. He has been left dangling by his political masters. There is no question that he can survive past the election of the next mayor in 2019. He either takes control of his fate and resigns, or the political upheaval that now starts will result in his firing.
Rallings has been fully vested in his MPD pension plan for about a year.
It seems very clear that a new director can’t come from the culturally compromised MPD. The next Police Director must be chosen on the basis of a proven record of community policing. The internal candidates who have been preened as Ralling’s successor are infected with the racial disease that infects the force and will be rejected.
The 2019 City elections
The current mayor and most of City Council were elected in 2015 with dog-whistle campaigns, evoking public safety with racial coding to get elected. The dog whistle was already losing its effectiveness. J Ford Canale blew the dog whistle in the Super 9-2 election and his vote was down 25% on Philip Spinosa’s 2015 performance. David Lenoir used the dog whistle in the County Mayor election and was convincingly defeated by Lee Harris.
Incumbents will be forced to run on other issues. Insurgent candidates will focus on poverty, economics and policing, where incumbents have a dreadful record. Strickland has not been brilliant at the basics. The Caissa Seven have been exposed as the next best thing to a political conspiracy.
Expect a lot of surprises as incumbents and challengers jockey for position and make economic arguments. Expect opponents to rally around retaining IRV in the December referenda, and issues like EDGE, economic development, energy policy, CLERB, policing and poverty to be well aired in the election runup.
Policing has been the lynch-pin of Memphis politics, especially in the last election cycle. The pin has been pulled from this grenade.
People need to be very careful out in the streets.
In the halls of power, expect surprises. 2019 will be fought and won on real policies, not the stalking horses of yore.
This Slate article about Dylann Roof, where he was quoted saying “You rape our women, and you’re taking over our country, and you have to go.” debunks the myth of Black on white violence.
Behind the myth of black rapists was an elemental fear of black autonomy, often expressed by white Southern leaders who unhesitatingly connected black political and economic power to sexual liaison with whites. “We of the South have never recognized the right of the Negro to govern white men, and we never will,” said Sen. Benjamin Tillman on the Senate floor in 1900. “We have never believed him to be equal to the white man, and we will not submit to his gratifying his lust on our wives and daughters without lynching him.”
We all know that during times of enslavement, the raping was being done by the slave owners. Ida B Wells and others debunked Jim Crow era allegations of Black rape against lynching victims. Genuine rapes of white women by Black men seem always to have been exceedingly rare or non-existent.
Nonetheless, this specter of Black violence against white people is still very much in existence. We see white politicians, like Jim Strickland, Kemp Conrad, Reid Hedgepeth, Bill Morrison and Worth Morgan harping on public safety, with coded references to the mythical danger posed to white voters by unrestrained and savage Black people.
Jim Strickland’s 2015 campaign.
Steven Reid, Jim Strickland’s 2015 campaign manager, wrote “How A Throwback Campaign Made History In Memphis”. The campaign did extensive polling and decided that Strickland’s Council public safety emphasis was the right strategy for the Mayoral campaign. They focused on the 70% of voters who were over 55 and used traditional media instead of electronic as that age group don’t use social media much. The article does not mention anything about encouraging racial vote splitting, which also helped Strickland greatly.
The article mentions some of the dog whistles in Strickland’s campaign, borrowed from his Council positions. “Strickland had long advocated for zero tolerance with violent criminals. And in the wake of a rash of juvenile crime in the city, including a high-profile attack on citizens at a Kroger store, Strickland had become critical of the mayor for failing to enforce curfew laws”. The linked article in Reid piece is a dead link. We substituted another similar media link. The campaign made a special effort to shore up white voters in the couple of weeks before the election.
The articles treat the public safety issue as a found phenomenon, failing to mention Strickland and his allies roles in stoking this fire, with help from the media.
Media Dog Whistle
The media, especially TV, have often been accused of dog whistling. This Commercial Appeal article which featured the third photo of the workers taking a break in the print version, was widely criticized for portraying negative racial stereotypes, by showing the Black youths taking a much needed hydration break, and by the selection of a quote from Mark Luttrell, one of the few white people in the article, using the loaded word “idleness” in the headline. CA Editor Mark Russell agreed that CA editorial policy was at fault in this instance, and the CA has since done a better job at avoiding racial coding.
This Channel 5 piece is typically coded, as was the Plaza Kroger piece we quoted in the Reid article.
The White Alliance on City Council.
Strickland had worked with members of the Caissa Seven in the 2015 council. The 2016 council is controlled by the Caissa Seven. Strickland is associated with Brian Stephens of Caissa Public Strategy, who had a prominent management role in Strickland’s Mayoral transition team. Philip Spinosa’s replacement, J Ford Canale, is expected to vote the Caissa Seven whip. He is closely associated with Strickland, Spinosa and Hedgepeth via the CBHS old boys network.
It is easy to see the Caissa Seven agreeing with “We of the South have never recognized the right of the Negro to govern white men, and we never will,” as per Sen. Benjamin Tillman. The Caissa Seven persuaded themselves that they are protecting Memphis from itself.
Council is gerrymandered to produce six white and seven Black councilors. This already under-represents Black voters by about 10%, and keeps the white delegation within one vote of control. By recruiting Berlin Boyd, they maintain a 7-6 vote lock. In addition, Joe Brown has always voted “law and order” with the white minority. Brown received a $5,000 donation from Memphis Police Association in 2015, and donated $500 in turn to Mike William’s (MPA President) mayoral campaign.
The Dog Whistles
- Zero tolerance, both for violent crimes and in-school infractions. This falls heaviest on Black people. School disciplinary problems are escalated to the juvenile justice system.
- juvenile crime is often a coded reference to crime by Black youths, including the example of the Kroger disturbance given by Stephen Reid above
- curfew is disproportionally used on young Black people.
- Memphis Shelby Crime Commission Youth Violence Plan (PDF). They are talking about Black youth violence and increased prison time.
The Case of CLERB
The current situation of CLERB is a well-documented history of how far Council members will go to protect the police force against transparency. In 2015, after a far-reaching campaign, Memphis United forced an ordinance on City Council to revitalize the long-moribund CLERB. The matter was eventually delayed until November 2015, when it was passed. Worth Morgan then introduced a new measure in 2016 to curtail CLERB’s subpoena powers.
- Bill Boyd, proposed an amendment to reduce the CLERB budget on 6/16/2015
- Kemp Conrad voted against the CLERB budget on 6/16/2015. He egged Berlin Boyd to ask for a November vote rather than an early approval of the CLERB ordinance on 8/4/2015. He also made vicious personal attacks on Memphis United’s Paul Garner and the pro-CLERB lobby from the council dais that day. He tried fear mongering, quoting an email from MPD Director Toney Armstrong saying that homicides would increase 20% if the ordinance is passed. (8/4/2015). Conrad also voted against the final CLERB ordinance on 11/3/2015.
- Jim Strickland, on the basis of an Allan Wade opinion, produced a last minute amendment on the third reading of the CLERB ordinance, removing CLERB’s subpoena powers, 7/7/2015.
- Berlin Boyd on 8/4/2015 asked for a four month delay in voting for the CLERB ordinance, after a phone call on the dais and calling MPD Director Toney Armstrong to the mic.
- Reid Hedgepeth also voted both to delay CLERB on 8/4/2015 and against CLERB reactivation on 11/3/2015.
- Also voting to delay CLERB on 8/4/2015 : Bill Morrison and Joe Brown.
In 2016, Worth Morgan introduced a measure to curtail CLERB’s limited subpoena powers, which passed on 8/9/2016. Voting for clipping CLERB’s wings: the Caissa Seven: Kemp Conrad, Reid Hedgepeth, Berlin Boyd, Bill Morrison, Worth Morgan, Philip Spinosa and Frank Colvett. Joe Brown also voted for.
Police directors Armstrong and Rallings and MPA president Williams also intervened in the CLERB dispute. After the August 2016 vote, Worth Morgan failed to attend every CLERB meeting. As he was the Council liaison on CLERB, this severed the direct connection between CLERB and the city, and introduced an additional obstacle for CLERB using its cumbersome subpoena process via Council.
The example of CLERB shows how the law and order faction on Council works closely with MPD to protect it from even the mild transparency that CLERB offered.
The voting patterns around the CLERB votes are typical of the other votes on Council involving police. The main exceptions were Berlin Boyd’s marijuana ordinance in August 2016 where Kemp Conrad was the lone nay vote in a generally popular measure, and in the negotiations around the 2017 budget when the police budget was marginally cut in sub-committee. The Caissa Seven seems to recognize that Berlin Boyd needs to play to his district and relaxes the whip on him occasionally.
MPD’s Institutional Interest
We have seen MPD steadfastly victimizing the Black population, from the early slave patrol days, through the 1866 Memphis Massacre, Reconstruction, the Jim Crow era, the Crump regime and the extraordinary measures taken to suppress the Civil Rights movement under Chandler. Even now, MPD is actively pursuing activists, many of whom are Black.
I have always assumed that current MPD racial profiling is part of their institutional DNA, and they are being racist because they have always been that way. There’s plenty of evidence for that.
But the dog whistle politics of the Caissa Seven and their predecessors coupled with the way the Caissa Seven protect and enrich the police adds another motive for police behavior. They are operating in their institutional self interest by enforcing the Caissa agenda. They are rewarded for enforcing racist policies.
The Wharton era pension debacle created a large pro-police movement, with Mike Williams as their leader. Facebook groups like “Just the Facts” are an example. The Caissa Seven and Strickland tapped into this movement.
Between 2008 and 2017, the MPD budget has grown by about a third ($60M), at a time when other City budgets were being cut to the bone. It is the biggest share of the City budget.
Mayor Strickland, with the Memphis Shelby Crime Commission, attracted private funding for police retention, and the administration has been emphasizing police training classes and police recruitment. Public safety employees were given additional wage increases in the 2017 budget.
The CLERB episodes gave the Caissa Seven another opportunity to show MPD that their interests are being looked after.
All this is not surprising. Machiavelli wrote in “The Prince” that rulers have to protect their security force, even when they do wrong. The Caissa Seven and Strickland need the police to protect their positions and the economic interests of their financial backers.
MPD has every reason to play along with the dog whistle politics. It enriches and protects them. They are actually being encouraged to double down on their repressive, racist history. It’s not a few bad apples. It’s the institution.
Dog whistle politics is a real thing. Its main function is to use traditional racist memes to make white voters afraid. The practitioners have also perverted community policing by using programs such as COP and neighborhood watches to recruit Black pastors and community activists to also gain police support in the Black community. Our recent post on the CCC’s misinformation campaign shows how MPD used a mailing list of supporters to get the word out.
It has been a successful strategy in preventing the 64% Black majority from controlling the levers of power. Or, if you like, keeping white minority control of the city.
Its consequence has been a protected, out of control police force which is motivated to profile the Black community, and the activist groups who are #woke to these issues.
This is the “Big Lie” in action.
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.
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 .