Saturday, June 18, 2016

City Council Threatens to Pull the 'Tooth' of Citizen Police Oversight in Memphis

Paul Garner of Mid-South Peace and Justice Center shows CLERB members almost 200 citizen complaints of officer misconduct that were blocked from being heard.  Click to see clips from CLERB meeting. 
The ink is barely dry on a Memphis City Council ordinance that refreshed the Civilian Law Enforcement Review Board (CLERB), and the board's already limited subpoena power is being challenged by its own city council rep.  New councilman Worth Morgan questions the value and legality of seeking a subpoena to compel evidence and testimony, and he has produced a new ordinance that eliminates subpoena power entirely. 

"Without subpoena power, I don't understand the point or purpose of CLERB besides being a show," says CLERB member John Marek. "Subpoena power is the one 'tooth' that we have."

(At the bottom of this story is a link to a history of CLERB ordinances, passed and proposed.  There is also a timeline of CLERB milestones.  Click here to see Video Clips from the June 14 meeting.  )

Morgan notes the board has heard one case this year and not needed a subpoena, and he questions the value of subpoena authority, saying that a subpoenaed police officer is not likely to show up, anyway, or will show up and take the Fifth.  At a June 14, 2016, meeting of CLERB, Morgan framed his opposition to subpoena power in terms of the language in the ordinance.  

"Maybe city council passed something we didn't actually have the authority to do," Morgan said during Tuesday's CLERB meeting.

Morgan said he may seek a judge to make the call about the legality of the subpoena clause in the current ordinance, which requires the board to go through city council and thus jump a political hurdle to obtain a subpoena -- the point of a subpoena being to require a person to appear and testify or to produce evidence such as documents and videos. 

How important is it for CLERB to have a way to obtain a subpoena?  CLERB Chairman Ralph White and board member Marek say it is vital, that CLERB is worthless without it.  Former Mayor A.C. Wharton said the same thing at a Tennessee Human Rights Commission meeting in January 2014.  Link to video clip.

All you really need to know to figure if subpoena power matters is to see who's fighting it and how hard they are working at it.  The more city council or the police or the police union fight it, the more it raises the questions, What are you afraid of?  and What are you hiding?

Since CLERB is made up of regular citizens who are sticking up for other citizens who say officers have treated them unfairly, they are highly suspect to police and city officials.  You know, it's those pesky citizens, the ones elected officials are supposed to serve.  It's not like it's some corporation looking for tax breaks or handouts, those whom the city is more comfortable accommodating.  It's not like it's the police, who are virtually untouchable to politicians who don't want to be called "soft on crime."  

The more CLERB finds out about how the police and the city operate, the more secrets could come out.  Something embarrassing might turn up, or they might uncover evidence a citizen could use against the city in a lawsuit.

The political point of curbing CLERB is that it appeases -- panders to? -- police and the police union.  Maybe that's the whole point for a councilman.  That's the point made by councilman Kemp Conrad last Aug. 4 when he slandered citizens promoting a stronger CLERB as "lawbreakers at heart."  Conrad said while he thought CLERB was good for the people of Memphis, he was voting against it two months before an election to show his support for police.  Conrad is city council chairman this term.    

The truth about a city having an effective police oversight board is that it legitimizes a police department.  

In this era when trust between police and community are at extreme lows -- having been hit by the expanding number of videos Americans have seen of police abuses which contradict police statements -- shouldn't the city, the police administration and the police union be embracing this as good public policy and good citizenship?   

The Department of Justice requires a city to have such a citizen oversight board every time it investigates a city and enters a consent decree with the city.  New Orleans and Cleveland have estimated it will cost taxpayers in each of their cities about $11 million a year over five years to comply with DOJ consent orders.  If Memphis supported an effective oversight board, would that not be preventative medicine against getting investigated by DOJ, which already is investigating the murder of Darrius Stewart by a Memphis police officer?  

The least that the citizen oversight board can do -- and perhaps the best it can do -- is shine sunlight on issues and problems.  The local media have covered CLERB developments.  If police don't cooperate, for instance, that could become public.  The CLERB website once active will include summaries of complaints and their dispositions.  Sometimes the citizen board would agree with the complainant, and sometimes the board would say the officer was operating within policy.  If CLERB advises police to take certain measures, be that discipline of an officer or a policy change, the public should be able to see if police take that advice or not.  

The current subpoena authority requires that the Memphis board go through its city council liaison -- Morgan now -- who then would take the request to the full council. If elected officials are maneuvering like this when no one has asked to compel a witness -- can you imagine the back-flips and contortions if CLERB actually asked for a subpoena?  

President Theodore Roosevelt said, "Speak softly, and carry a big stick.  You will go far."

Maybe CLERB's subpoena ability is like that, a threat of action that will "help" police and city employees cooperate voluntarily.  

Regardless of how CLERB operates, it can only recommend actions to the police department.  CLERB has no power to fire or discipline officers.  It's up to police administration to act upon or reject the board's findings.  

The current ordinance which Morgan is challenging was passed 9-2, on Nov. 3, 2015, including "yes" votes from two attorneys on city council who had combed over the law -- Jim Strickland (now mayor) and Alan Crone (now a special advisor to the mayor).  Both of them questioned if the law they passed was actually strong enough.

Attorney Allan Wade, who represents city council, said nothing about the subpoena clause being illegal at that time.  

The cities of Atlanta and Knoxville have citizen oversight boards with independent authority to issue subpoenas on their own.  

When Atlanta's board was formed, it did not have subpoena power, except to request it through city council as does the current Memphis ordinance.  However, the Atlanta Citizen Review Board discovered they needed that authority independent of city council, and in 2010 Atlanta amended its ordinance to grant its citizen board subpoena power on its own and added a provision that city employees were required to cooperate with the board.  Both those provisions were in an amended ordinance proposed by Memphis United last year.  Both those died in the slog through Memphis city council.  

"We don't typically need a subpoena, because we get cooperation from the police department," said a staff member of the Atlanta review board.  "But, we have it in the law, because the next police chief may not be cooperative."  

Knoxville's Police Advisory and Review Committee not only has subpoena power and hears cases, it monitors trends and activities such as racial profiling.  It illuminates issues which police can convert into policy changes, such as re-training officers on how to extract someone from a locked seat belt.  The Knoxville committee says citizen complaints have gone down during its tenure.  

What if we learned the easy way, taking a cue from what others have found?  What if we amended the ordinance in the way it should be, following Atlanta's experience and conferring independent subpoena power to the board and compelling city employees to cooperate?  What if we did these things to head off the experiences of Cleveland, Seattle, New Orleans, Cincinnati, etc., who have been investigated thoroughly by the DOJ?  

The discussion about citizen oversight and subpoena power in Memphis has focused on the need to compel a police officer to appear before the board.  However, Memphis has retained an investigator, and Atlanta has several investigators who interview officers.  Thus, it is not typical that an Atlanta officer would appear before the board.  Presumably, the Memphis board would operate the same way -- its investigator would talk to witnesses, including the complainant and police officers.  

Morgan said if a Memphis police officer were subpoenaed to come before the board, it is likely the officer would simply refuse to appear, on the theory that the subpoena would have been illegally issued.  An officer may choose to assert his Fifth Amendment right to not say anything that could be used against him.  Are those views overly presumptuous?  Would an officer never want to tell his side of what happened?  

So far, who knows?  We are in the zone of the hypothetical.  Morgan says CLERB, which was formed in 1994 after police shot and killed 68-year-old neighborhood watcher Jesse Bogard of Orange Mound, never has gotten a subpoena.  

The typical way a law becomes challenged is when a lawsuit is filed based on a specific case, and case law is created based on courts of appeals.  The U.S. Supreme Court, for instance, hears only cases that it believes bring up relevant constitutional issues, and the court rarely hears hypothetical cases, desiring to hear cases from actual incidents and facts, which may call up narrow legal questions.

For example -- and indulge us to digress in a dubious piece of local history -- it is a case out of Memphis, Tennessee vs. Garner, that came to lay out the force an officer may use to stop a suspect who is trying to get away.  Tennessee and 21 other states had laws that a police officer could use whatever force he wanted, including lethal, to stop a fleeing felony suspect.  The court applied the Fourth Amendment based on the specifics of the case involving Memphis officer Elton Hymon, who in 1974 shot and killed Edward Garner as he was trying to climb a fence and get away with $10 and a purse he had stolen from a house.  

Writing for the majority, Justice Byron White said officers could only use deadly force if the fleeing suspect posed a threat of injury or death to the officer or someone else.

"It is not better that a suspect die than that he get away," White wrote.

Tennessee vs. Garner is applied in most every infamous case we see in the United States of police killing an unarmed person.  

Memphis patrolman Connor Schilling, who shot and killed 19-year-old Darrius Stewart July 17, 2015, as Stewart was trying to get away, claimed he feared for his life.  If Schilling had been tried for killing Stewart, both the prosecutor and the defense would have argued around Tennessee vs. Garner.  

Morgan said he would speak to attorneys to determine how to go about asking a judge for a declaratory judgment on the CLERB subpoena question.  That itself seems to open up further cans of worms.  For instance, which court would have jurisdiction?  To what extent would anyone go "judge-shopping?"  Would any judge even be willing to take on this additional work?  

How would Morgan, or a willing judge, frame the question?  Would the question be, What about our present ordinance?  Or, better, does City Council have authority to confer independent subpoena power upon a board of its formation?  

City attorney Allan Wade threw a curveball at the ordinance developed by Memphis United one day before council was to take a final vote on July 7, 2015.  Wade wrote a letter opining that city council did not have the authority to give this power to a board of its making.  CLERB member Marek, a lawyer, and other lawyers who have looked at the question disagree with Wade's opinion.  

Wade is city council's attorney as a full-time city employee, earning $101,000 a year plus benefits.  Further, Wade earns more than $200 an hour when the city retains him to defend certain lawsuits.  Wade also has a private legal practice, giving him something of a lawyer Trifecta.  Wade says he is worth it.  Beating down CLERB's subpoena power limits the likelihood that damaging evidence would emerge in a lawsuit the city must defend.  

We are not the lawyer and not practicing without a license here, but using simple logic, Wade's opinion was based on the fact that the Memphis city charter does not specifically state that city council may confer subpoena authority to such a body of its formation.  That's a conclusion by omission, something like trying to prove a negative.  

The city charter doesn't say you can.  But it doesn't say you can't, which would make a sounder argument.

The process that requires CLERB to go through city council to obtain a subpoena is nothing new.  It was in the original CLERB ordinance from 1994.  

In seeking another opinion about the ordinance in that form, the going-through-city-council process, Morgan bypasses the opinion of its own counsel.   On the occasion of that language being in the law finally passed Nov. 3, Wade did not say it was illegal or violated the city charter.  He opined in front of full council that formulated as it was, the law would require city council to take up the subpoena issue as part of its business.  Presumably city council can thus make its business most anything it wants -- as it does now when voting to move statues or tell people where they can park at the zoo.

While the process of going through city council to get a subpoena would be cumbersome and a road hump to justice, it would elevate in the public eye the issue of whomever was not cooperating with CLERB.  That would provide more of a political spectacle than if CLERB on its own or city council quietly obtained the subpoena for a witness or evidence to appear before the citizen oversight body and not the full council.  

At the recent CLERB meeting, Chairman White and board member Marek seemed willing to accept Morgan's position at face value, that he honestly wants to sort out the law.  Marek says he won't feel so upset if a judge limits the board's authority versus city council killing it.  If all of this comes about, this idea of getting a judge to call safe or out, Morgan and forces against subpoena power run the risk of a ruling that CLERB does indeed have the authority to issue its own subpoenas.  

Morgan's ordinance should come up for third and final reading and a vote by the full council on July 5.  All of this conjecture is moot if city council does not pass his ordinance.  If the ordinance passes, CLERB will have no path to obtain a subpoena to help them investigate a case.  It would take another ordinance, or an amendment, to get it back.  

Is Morgan sincerely concerned about legal language, or has he been coached up by another city council member? Has he reached mid-term form on mis-direction just five months in?  Confusion, or the appearance of confusion, is a political tool.   

The CLERB ordinance was thoroughly debated and dissected last year, and ordinance sponsor Wanda Halbert even put it through the wringer of three public meetings that included police administration and their attorneys, the police union and its attorneys and the city administration and its attorneys.  

It is highly unusual that a council member -- especially a council rookie -- would challenge a law that had been through such a city council grind, especially in the absence of any cases or controversies having arisen.  

The city needs fresh leaders, not more of the same.  Morgan has the potential to be a leader and not get dragged down in the political undertow. 

Morgan's ordinance also specifies that the council liaison is a non-voting member of the board, although nothing in the current law says that the council liaison has a vote.  And, it eliminates the requirement that the board deliberate in executive session (closed to the public) after hearing a case.  The issue of closed deliberations was reported in the media as going against the spirit of transparency and openness which propelled the revival of the citizen oversight board.  Per Morgan's ordinance there will be no portions of the meetings closed to the public, which has the agreement of other CLERB members and citizens group Memphis United, who held town hall meetings and provided research to city council on the subject of citizen oversight.  

CLERB has heard only one case since the new ordinance passed.  The board now has a full-time staff person, administrator Virginia Wilson.  Video archives of these meetings, as well as city council meetings, are posted on the city's website.  However, no CLERB meeting minutes have been posted.  


Links to news stories from the recent meeting:

The Commercial Appeal story 

CLERB Aug. 11, 2011, meeting agenda.  This was the last meeting held before the board was disbanded by the Wharton administration.  

CLERB landmarks:

Oct. 25, 1994: City council passes the Civilian Law Enforcement Review Board ordinance, sponsored by Shep Wilburn.

Feb. 12, 2008:  Police beat transgender woman Duanna Johnson, which led city council to audit CLERB and found it lacking the stuff it needed to be effective.

2009:  City council tells the mayor, the police and the police union to meet up and help fix the citizen police oversight board.  No meeting ever took place because none those entities had an incentive to do so.  

Aug. 11, 2011.  The final CLERB meeting before Mayor A. C. Wharton's administration secretly and illegally disband the board.

October 2013:  Police arrest people for filming them at Manna House homeless refuge and at a Trolley Night hip-hop cypher, which led aggrieved citizens to discover CLERB was nothing more than a website.

May 6, 2014:  City council commissions citizens coalition Memphis United to research the subject, set up town hall meetings, promote public awareness, obtain public input and formulate a new ordinance -- a six-figure consulting and PR job -- for free.

Nov. 3, 2015:  City council approves a watered-down ordinance that patches up a few shortcomings in the CLERB law.

April 14, 2016:  CLERB hears its first case since Aug. 11, 2011.

May 17, 2016:  Worth Morgan, chairman of the public safety and homeland security committee, presents an ordinance which replaces the law passed by city council in November.  This ordinance deletes any reference to subpoenas and executive session deliberations.  

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