Thursday, May 11, 2017

Citizen Police Oversight Board 'Insulted,' Fires Back at Police Chief and City Council Rep

Stung by rejection from the police chief and dismissed by their City Council liaison, members of Memphis’ citizen police oversight board dug in their heels and insisted their mission matters. 

At the Civilian Law Enforcement Review Board’s monthly meeting today, the board voted to ask City Council Chairman Berlin Boyd to replace councilman Worth Morgan as the liaison from council to CLERB.  They also voted to ask police director Michael Rallings to require police officers to appear and testify when the board hears citizen complaints of police abuses.

“I was insulted.  All of us should have been,” CLERB Chairman Rev. Ralph White said of Rallings’ letters of rejection to four cases in which CLERB said citizens were mistreated and recommended that Rallings discipline officers.
CLERB members applaud after affirming they wanted attorney Bruce Kramer (center) to remain on the board.  Kramer said Mayor Jim Strickland's attorney had asked him to resign, since Kramer is representing plaintiffs in two lawsuits against the city. Kramer told the board he would resign if they felt his presence was a conflict. Board members emphatically said they wanted Kramer to stay. 
Morgan last attended a CLERB meeting June 14, 2016, and at that time he was pushing a new ordinance which would have stripped CLERB of a path to subpoena evidence and testimony.

Morgan recently told the press that he saw no reason for CLERB to exist.  He was appointed CLERB liaison last year by then-council chairman Kemp Conrad, with the apparent intention to cripple CLERB, somewhat like Donald Trump cabinet appointees. 

CLERB can only make recommendations to the police director; the citizen board has no power or authority to require sanctions or even notations in an officer’s personnel file.  Upon hearing how Rallings had rejected CLERB’s findings, some citizens asked if  CLERB is meaningless, anyway, without authority.  However, CLERB can at minimum and with media coverage shine light on how police treat citizens and how MPD brass view citizen complaints.

Rather than slinking away in defeat, CLERB members were defiant after Rallings blew off the board’s months of work.  The board also voted to resubmit the same cases to Rallings with more detailed information outlining how they had arrived at their decisions.  

"We have to convince him.  I think we need to tell the story as we hear it from the person who is talking to us," said CLERB member Casey Bryant, a lawyer.   

Bryant suggested, and CLERB members agreed, that they go back to the drawing board and resubmit the cases to Rallings more as legal briefs, in which the facts, law and reasoning behind a decision are lined out.  Having already responded once, Rallings would not necessarily be obligated to answer again.

"When you are arguing a case, whether you are an attorney or not, you want to give the facts that will convince someone that what you say is true," Bryant said.  "So perhaps instead of saying, We beg to disagree, director Rallings, we could adapt our approach a little, so that in the same vein as they do, we lay out the facts we think are important about this case -- that we ascertained from the report they gave us, that we ascertained from our having taken testimony.  

"And then we apply our reasoning, legal or whatever, why we think this happened in a different light, so that we convince them of what we are talking about, instead of just saying, you're wrong.  No one wants to hear that.  The head of the police department of Memphis doesn't want to hear that and doesn't want to have a smack on the wrist," Bryant said.  

If Bryant is making a comparison to a court-like proceeding, neither does Rallings-as-judge see the demeanor of a witness as do CLERB members to evaluate credibility and motivation.  Videos of CLERB meetings are typically recorded, although Rallings does not state that he reviewed meeting videos from the city's video archive website.  Until recently, the latest CLERB meeting video posted was from October, 2016.  

Citizens coalition Memphis United proposed in 2015 that citizen complainants be allowed to appear when police internal affairs hears from the allegedly offending officer.  That got quickly scratched.  CLERB members say they could do a better job if officers appeared when they hear cases.  Pending complainant Marcus Walker, who said police beat, maced and arrested him and his nephew like it was a cop "initiation," last month asked for CLERB to produce the officer so that Walker could cross-examine him.  

So long as police are not willing to hear more from a citizen than just a written statement, they are not weighing the full story.  Conversely, the police union has said if officers were compelled to appear before CLERB, they would show up with a union-provided attorney and take the Fifth Amendment, refusing to testify.  

However, CLERB is trying a different legalistic twist.  Case files from the police include officers' Garrity statements -- based on a Supreme Court case, Garrity vs. New Jersey -- which are statements MPD requires officers to make under threat of being terminated if they do not talk.  Since Garrity statements are not admissible in a civil trial, CLERB reasons, that lets down this barrier to officers talking in public.  

That is not likely to happen in the current environment. 

In one of the four cases, Rallings slightly equivocated.  Paul Garner, organizing director at Mid-South Peace and Justice Center, had complained after police arrested him for attempting to film them in front of Manna House homeless refuge Oct. 21, 2013.  In Rallings’ letter of response to CLERB about Garner’s case, he got the date wrong, and he claimed Garner had “declined to allow investigators” to see a video he had in his possession.  Rallings requested that CLERB provide said video to MPD’s internal affairs unit, Inspectional Services Bureau.

On the contrary, Garner did not refuse anything, because he never had a video of what went down at Manna House. After police showed up searching the place and grounds without a warrant, Garner was called by a Manna House volunteer as the trouble with police unfolded, and he showed up. Garner had been instrumental in organizing H.O.P.E, Homeless Organizing for Power and Equality, which often met at Manna House.

When Garner arrived, police were in the process of arresting a volunteer who had shot phone video of six officers searching a homeless man down the street.  The volunteer had told police they did not have permission to enter without a warrant; police searched the property, anyway, and they got mad at the volunteer.

Garner and the volunteer were charged with obstructing a highway or passageway.  Garner was additionally charged with disorderly conduct as he sought to video an ID number from a police car and an officer told him it was illegal to film without a permit.  Garner never got his video going, however, as police quickly snatched his cell phone and handcuffed him.  Garner’s charges were dismissed the next morning after he spent the night in jail. 

Rallings’ responses, which are linked below, are an overt signal to patrol officers that he has their back.  As such, Rallings plays into the common belief that police cannot police their own, that any “investigations” are merely exercises in covering up. 

Some observers saw Rallings’ responses as stunning and chilling for the future of police-community relations.   Rallings wasted a golden opportunity to acknowledge that police can make mistakes like anyone, which could have gone a long way to healing cop-community relations. 

Instead, Rallings did not give an inch.  Railings did not cite one single piece of CLERB's work and the citizens' cases as credible.  Not only did he back his troops, Rallings went one step further and stated that the citizens had misbehaved and brought it all on themselves.  

Neither did Rallings or CLERB point out perhaps the most notable aspect of all four cases: Police encountered these four persons incidentally as none had been accused of anything nor were they involved in anything that had caused police to show up.  

CLERB members had voted unanimously to uphold the citizens’ complaints in the four cases after hearing testimony from the complainants and witnesses; reviewing thick ISB cases files including officers’ statements; watching video and looking at photos when available, and deliberating at length.  

Board member John Marek pointed out that CLERB had sided with internal affairs more often than citizens, agreeing with ISB in six of 10 cases that complaining citizens’ cases were “not sustained,” meaning there was insufficient evidence to conclude police had mistreated citizens. 

Those six cases were not so clear-cut as the four in which the board had “sustained” the citizen complaints, meaning they agreed with citizens over internal affairs.  In one of the six, an officer called the complaining citizen and said the matter “had been handled” internally, which short-circuited CLERB’s role.  The case went down as “not sustained,” however, or siding with police. 

In one case which was “not sustained,” a complainant mainly sought money damages, which is a civil matter and not in CLERB’s province.  In another case, a complainant had a compelling story of how an officer had kicked him and clamped a leg iron tightly around a wound.  After a supposed video was found to have been recorded over, CLERB determined there was not enough evidence to blame the officer. 

In the other three cases, CLERB agreed with ISB that there was not enough evidence to prove police had violated their own policy and procedures.

Rallings across the board elaborated on how he believed written statements from officers -- in spite of cuts, bruises, chipped teeth and officers’ admissions of knocking people down, hitting them and macing them -- over statements from citizens.  Those injuries and actions can be part of arresting an uncooperative person, Rallings indicated, and do not amount to excessive force.   

Truck driver James Bolden said he reflexively reached for his groin when officers busted his testicles while aggressively searching him.  Rallings did not refute “minor abrasions” on Bolden’s left hand, elbow and knee, but he gave most weight to the notation that Bolden did not have any marks on his side, where he said officers had kicked him.

Bolden was locking up his place of work late one night after a long day on the road when officers responded to a burglar alarm at a business nearby.  They confronted and arrested Bolden, although he explained he was an employee.  Officers even spoke with Bolden’s boss on the phone, he said.  They arrested him, anyway, charging disorderly conduct.

Rallings said MPD policy and procedures do not prohibit “pat-downs” of a subject’s genital area. 

Reginald Johnson’s is a case of no good deed goes unpunished.  A man who had been shot knocked on Johnson’s front door at about 11 p.m. on Feb. 8, 2016, and said he had been shot.  Johnson called 911 for an ambulance.  Police showed up large – ultimately 10 officers, one lieutenant and one sergeant – as the injured man remained outside.   Three officers entered Johnson’s home without permission or a warrant, then beat and maced him. 

Johnson was led out of his home in handcuffs and pajamas.  Police charged disorderly conduct, which was dismissed.

An untimely knock: click photo to view video
Rallings said in cop legal lingo “exigent circumstances” allowed police to enter Johnson’s home without permission.  He said Johnson then attempted to assault the officers.  One officer quickly filed an injured-on-the-job claim that he hurt his left wrist while hitting Johnson.

Rallings failed to note, and perhaps did not look at, surveillance video footage from Johnson’s front porch camera.  CLERB had seen the video when discussing Johnson’s case, and police internal affairs had the video, also;  in fact, in Johnson's ISB case, investigators say they watched it.

Among injuries Johnson suffered, a front tooth was chipped when officers knocked him down to a tile floor.  Police put a photo of the chipped tooth in the case file.

Rallings said, “…the incident was the result of Mr. Johnson’s actions.”

“That’s just a lie.  That hurts me,” Johnson said.  

While officers were leading Johnson away in handcuffs, his wife Shirley Johnson said out loud, “We have video cameras.”

“Oh, shit,” she heard one officer say. 

Some officers at the scene remarked that Johnson “does not like police.”  Johnson had complained in the press that police were not investigating the death of his son Samuel on Halloween night, Oct. 31, 2014.  Johnson believes police were retaliating on him and now says, “I am in fear for my life” from police.

MPD has a “hazard” on his house, which means police are to be alerted to trouble any time they are called to Johnson’s address.  When his daughter called police from Johnson’s house to request an accident report Feb. 20, 2017, the dispatcher asked, “Is Reginald Johnson there?  ….Is he OK?”  after “HAZARD” popped up on her computer screen.

Four police cars showed up while one officer took the accident report.

For all the lip service current and former mayors and police chiefs have given "transparency" and "accountability," nothing seems to change.  Police administration is predictably defensive and goes on the attack.  Police directors don't seem to get how they have an opportunity to humanize police and put on a warmer and less hostile front to citizens -- which would serve police and the city in the long run. 

Perhaps nothing more could be expected.  Police don't think anyone except those in law enforcement are qualified to judge police actions.  The explosion of citizen and other videos, which is examined in the documentary Who Will Watch the Watchers?, have flushed out some of the knee-jerk defensiveness and cover stories.  

Maybe the bottom line for police and city administrators is simply this: We don't want to get sued any more.  The city and police are the subject of several lawsuits at any given time.  If they publicly admit wrongdoing, does that help plaintiffs and lead to higher settlements or judgments?  In these four cases, that would not seem to apply as the statute of limitations has run out for filing civil complaints. 

The complaining citizens had waited as long as six years to get a measure of justice, even if it was just an apology from the police chief, some said. 

"A decent apology would help," said Bolden.

It is now clear that no apology will be forthcoming. 

Following are additional resources, including Rallings' letters and video recaps of the CLERB meetings which led to the board's decisions in the cases of Paul Garner, Reginald Johnson, Claudette Taylor and James Bolden.

Click here or letter below to see Memphis police director Michael Rallings' four letters in response to CLERB recommendations.

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