VOL. 130 | NO. 216 | Thursday, November 5, 2015
Questions Remain About Effectiveness of CLERB Ordinance
By Bill Dries
Before the Memphis City Council gave final approval Tuesday, Nov. 3, to a reconstituted Civilian Law Enforcement Review Board, councilman Alan Crone had a question that wouldn’t go away.
“Are there any deficiencies in this ordinance that need to be addressed?” he asked. “If so, we need to get them on the table and deal with them. We don’t need to do this piecemeal.”
Crone asked the question as the fatal police shooting that galvanized the move to give CLERB more teeth to investigate claims of police misconduct and abuse of power offered a preview of how the most serious allegations are likely to play out.
The investigation of the July death of Darrius Stewart, who was shot by Memphis police officer Connor Schilling, was sent to the Shelby County grand jury for review.
Shelby County District Attorney General Amy Weirich recommended that Schilling be charged with voluntary manslaughter but the grand jury found there was no probable cause for any criminal charge.
The Tennessee Bureau of Investigation presented the case to the grand jury, and by law, all TBI investigative files are sealed from public view unless a court orders them to be opened.
Weirich said she wasn’t sure the grand jury was told of her recommendation because its proceedings are closed to the public, with penalties for revealing details of what happens
Because TBI records are sealed, Weirich couldn’t even say what specifically in the TBI investigation prompted her to recommend the manslaughter charge.
In announcing the grand jury’s decision Tuesday afternoon, three blocks away from City Hall, Weirich said her office has filed suit in Chancery Court to open the TBI investigative files on the case.
The ordinance approved by the council deals with the citizens review board getting records from the Memphis Police Department’s internal affairs bureau after the internal investigation is completed.
While police will still investigate some complaints of misconduct, the most serious allegations – those involving fatal police encounters and the deaths of citizens in police custody – will automatically go to the TBI.
That’s by the terms of an agreement Weirich, police director Toney Armstrong and Shelby County Sheriff Bill Oldham signed in October with the TBI.
Attorney Timothy Taylor, who represents the Memphis Police Association, acknowledged the agreement “may throw an unforeseen dynamic into the conversations” about CLERB.
In other action Tuesday, the council approved a resolution backing a state law that would require such cases statewide to be automatically handed off to the TBI. The measure, to be considered by the Legislature that convenes in January, has drawn opposition from the police chiefs of Nashville and Knoxville.
Council attorney Allan Wade has said the body cannot use its subpoena power to gather records for CLERB, as permitted under the ordinance that passed Tuesday.
“You can make an inquiry about something you are hearing,” Wade told the council. “You would have to do it here. … To delegate to them, I don’t believe you can do that under the (city) charter.”
Since the council delayed the final vote on the CLERB ordinance in August, Tennessee Attorney General Herbert Slatery has issued a legal opinion stating that even if the council did subpoena the records of a TBI investigation into an incident like the Stewart shooting, it wouldn’t meet the standards under the state law for a court order to open the records.
Slatery’s opinion was in response to a question from state Rep. Antonio Parkinson of Memphis.
Backers of the CLERB ordinance, including some current appointees to the board described the changes as compromises and modest ones at that.
Attorney Carlissa Shaw, the vice chairwoman of the review board, termed it “a start.”
“A lot of board members had a feeling of being lost,” she said. “Where we are now is a good start.”
That’s what prompted Crone’s question.
“You say it’s a start,” he told Shaw. “Are we doing anything by passing this ordinance? Are we really advancing the ball in light of what Mr. Wade just said?”
Shaw described the subpoena limitations as “one minute issue.”
“A lot of things didn’t have to do with subpoena power,” she said. “We can’t push for something that is not legal.”
Finally asked by Crone if the ordinance is “as good as it’s going to get,” Shaw agreed.