First-century Roman satirist Juvenal was quite the kidder.
Juvenal noted that while the Emperor placed guards to protect his women from the molestations and advances of other men, he failed to consider molestations from the guards themselves. Juvenal asked:
“Quis custodiet ipsos custodies?” commonly translated as “Who will watch the watchers?”
Who Will Watch the Watchers? is our film title and the question we seek to answer in our feature documentary about citizen oversight of police.
WHO WILL WATCH THE WATCHERS?
The city of Nashville recently answered that question, too, by voting to establish a community police oversight board to review alleged misconduct of Metro Nashville Police Department officers and to recommend on training, discipline and policy.
Who will watch the watchers? also remains an open question as Community Oversight Now organizers and citizens bring to life the new law voted in Nov. 6 by a charter referendum. Amendment 1 passed with 59 per cent of the votes from the people themselves, 134,135 of them who voted for it, vs. 94,055 who voted against it.
The successful vote for the amendment to the Metro Charter was only step one. How well Mayor David Briley’s administration supports and implements the new law -- and how Briley defends it from lawsuits by the Fraternal Order of Police and possible legal challenges from the Tennessee legislature -- remains to be seen.
The “who” question also includes who will become the first members of the 11-member Community Oversight Board (COB). How to apply to become a board member.
NASHVILLE, USA
The events leading to the COB in Nashville are typical of most every city in the country. Calls for oversight are intensified after police shoot and kill unthreatening young men; public outrage plays out in the media; officers often are not held accountable or prosecuted, sometimes in spite of video evidence which seems overwhelming. Police, mayors, city council members and police unions push back mightily with fear-mongering and victim-blaming.
Sound familiar? Nashville, USA, is Anywhere, USA.
In fact, a reporter from NBC in New York has reached out to local organizers with plans to do a story on how the law will be put into effect.
While researching, we saw the same stories appear over and over in the media, in every city which had experienced this – and every city has experienced this. It seemed as if the stories could merely be “recycled,” with editors only changing the names, locations and dates.
A PERFECT QUESTION
At a public informational meeting put on Sunday by Community Oversight Now (CON) grassroots organizers, a woman in the enthusiastic audience of more than a hundred persons asked what CON had learned from existing oversight boards around the country:
“How much research has been done to see what has been effective and what has been ineffective -- what have we learned from their successes and also their mistakes?”
That was a perfect question.
Community Oversight organizers have reached out to review boards in other cities such as Memphis and Denver, and some of them attended the National Association for Civilian Oversight of Law Enforcement annual convention in Detroit in September.
After getting schooled up on the subject and comparing the proposed Nashville ordinance with other cities, organizer Melissa Cherry said:
“Cities across the country that have oversight boards would love to have what we have now.”
LEARNING FROM WATCHING THE WATCHERS
We have an answer for that question, too, based on the following and as we make some direct comparisons to the review boards that are nearest to Nashville, those in Memphis, Atlanta and Knoxville.
We have spent five years researching this exact subject and produced a film about it. We have engaged with the Department of Justice COPS (community policing) office, nationally renowned law enforcement leaders, and more importantly, grassroots activists, citizens and victims.
We have tracked tragedies of police shooting and killing unthreatening young men and have connected with victims’ families, such as Mike Brown Sr. (Mike Brown, Ferguson, MO), LaToya Howell (Justus Howell, Zion, IL), Veda Washington (Alton Sterling, Baton Rouge, LA), and especially with Mary Stewart (Darrius Stewart, Memphis). We have been called as an expert witness and recognized as a Subject Matter Expert (SME).
The new law will be the foundation of police oversight in Nashville. Melissa Cherry was right. This is a strong ordinance with certain powers and independence that other cities do not enjoy:
1—Nashville’s Citizen Oversight Board (COB) can independently receive citizen complaints and conduct its own investigations. In cities such as Memphis, a citizen may not complain to the Civilian Law Enforcement Review Board (CLERB) until after the police internal affairs division has reviewed a complaint and decided to sustain or not sustain it. Having to go through the police first to complain about police who abused you is intimidating to many citizens and does not quite make sense. This limits the number of complaints that get launched in the first place.
2—COB hires the executive director. In most cities, staff are hired by the politicians. In Memphis, the mayor hires who is on paid staff and thus can control staff’s level of “enterprise” for the mission.
3—Seven members of the 11-member COB are nominated by local organizations and the general public. Two are nominated by the mayor and two by Metro Council. In Memphis, every single one is appointed by the mayor.
In fact, Memphis Mayor Jim Strickland weakened CLERB over the past year by failing to re-appoint the board’s strongest member, civil rights attorney Bruce Kramer, and attorney John Marek, who had defended citizens who were arrested for filming police. Before letting Kramer’s term expire, the mayor asked Kramer to resign. Kramer declined.
Kramer is known for having filed the 1976 lawsuit against the city of Memphis for conducting political surveillance on law-abiding citizens, which resulted in a 1978 DOJ Consent Decree with Memphis – the first Order of its kind in the country. Then, after citizens learned in 2017 that the city had compiled a so-called “black list” of activists who required “escorts” if they set foot in City Hall, Kramer and the ACLU sued the city again. Last month a federal judge ruled the city had violated the consent decree.
4—The ordinance says COB shall have full access to all MNPD records and full access to interview MNPD staff. In other cities this appears nowhere in the law, and it is up to the discretion of the police director to allow such access. Oh, and in Memphis that just is not going to happen. Atlanta police chiefs typically have required officers to cooperate with Atlanta Citizen Review Board investigators without having to be subpoenaed.
The ordinance says COB “shall have the power to compel” the same as other Metro government bodies. That means to require, to subpoena, although GOP legislators in the Tennessee General Assembly recently passed a law that said local agencies do not have the authority to issue subpoenas. Subpoena power is held directly by the Atlanta board and by Knoxville’s Police Advisory and Review Committee, although both boards state they rarely use it. Subpoenas can be used to get video footage from the mini-mart, for example, or to retrieve city and police documents and compel officers to appear – although officers cannot be compelled to testify and may show up with a FOP attorney in tow and cite Fifth Amendment rights.
In Memphis, a subpoena process exists, but it is so convoluted as to be practically impossible. City Council’s liaison to CLERB must carry a request for subpoena, such as of an officer or police records, to City Council. In May, CLERB authorized its City Council liaison Jamita Swearingen to request that City Council subpoena two officers that a citizen accused of beating him and his nephew during a midnight cop “initiation” ritual. It’s Thanksgiving, and Swearingen has yet to submit the request, saying she is waiting for the right time to bring it up, according to CLERB chair Casey Bryant.
5—COB is authorized to require officers to take part in “counseling, mediations, restorative justice or other non-punitive remedies in response to allegations of police misconduct.” COB may only make recommendations to the police chief regarding such things as discipline and training. That is typical of other cities’ boards, which may only recommend actions. However, that this board has any independent authority at all to require anything of officers is remarkable.
6—Of overarching significance, the COB law was passed as an amendment to the city charter and voted in by citizens. Previous Nashville administrations or councils had been resistant to setting up a police review committee, so organizers did an end-around that dodged the political shredder of having to go through Metro Council, which would have resulted in a watered-down ordinance.
In Memphis in 2014, after citizens who were arrested for filming police complained to the Inspectional Services Bureau, they discovered that CLERB secretly had been disbanded by Mayor A.C. Wharton in 2011. A lengthy grassroots campaign led by the Memphis United coalition produced an ordinance that started out strong but was ravaged along a legislative gauntlet of underhanded dealings and trickery on the part of City Council and the administration.
CONNECTING WITH THE COMMUNITY & THE MEDIA
The board must model the openness and transparency it seeks from the Mayor and Chief of Police. COB must feel approachable to citizens. How to do this is not exactly in the ordinance list of staff positions and duties, but here are some ways staff could make this work:
One task of staff should be public relations and communications. COB must tell its own story, or narrative, and must engage the public and the media. COB could produce its own video stories for social media, for instance. Outreach could include hosting its own community events -- or showing up with a booth or table at events of others.
Public awareness of COB and how citizens may complain or interact becomes a key goal. Meetings should be advanced by the media, and media should cover all of them. Meetings should be video-taped and the videos placed on the COB website. Some meetings should be held out in the community, such as at libraries or schools or community centers. In Memphis, mainstream media coverage increasingly dwindled as the police director rejected every recommendation. We do not recall a single meeting attended by any corporate media in 2018.
COB must have a robust, user-friendly website from which citizens may make complaints, check status and outcomes of complaints and more. The website should include, for example, letters to and from COB to the mayor and police chief. It must include meeting minutes promptly posted.
COB could inform citizens of their rights and how to interact with police through workshops and literature. In Atlanta, the ACRB conducted such workshops at libraries, and in 2015 they placed six billboards around the city to publicize the events.
In Memphis, we helped organizing director Paul Garner of the Mid-South Peace and Justice Center develop “Know Your Rights Theater,” a role-playing, interactive workshop which we took to schools and summer camps and more. MSPJC published a know-your-rights pamphlet in English and Spanish. The CLERB had nothing to do with this endeavor, but this is a project that COB could initiate – and could recruit and train students to duplicate in their schools and neighborhoods.
DEVIL IN THE DETAILS
With the historic passing of this law, the work is not done for citizens who have called for oversight. Hundreds of details and questions remain, and City Hall and the Metro Nashville Police Department can be expected to trim back COB’s powers wherever possible.
For instance, if COB has access to police records and to interview sworn officers, how will that play out? Will the police department stonewall, delay, drag its feet, withhold or limit access? What if COB wants something from another department, such as public works or the mayor’s staff?
Another question from the Sunday audience was how long of a look-back period would a citizen have to make a complaint. In Memphis, a logical place was citizens who could have made a complaint in 2011 and later but were denied that right due to CLERB’s disbanding by the mayor. So, it worked out to about five years. COB has the leeway to set a look-back period or not, but probably they will come up with a certain number of years.
And, after all is said and done, strong ordinance or not, the willingness of the Mayor and the Chief of Police to support the board will go a long way toward determining its success.
Gary Moore operates Moore Media Strategies, founded the educational nonprofit Citizens Media Resource and makes films about social justice issues. Moore writes in Daily Kos as FreeSpeechZone, chiefly about First and Fourth Amendment issues.
Who Will Watch the Watchers film website.
Citizens Media Resource website.
Who Will Watch the Watchers? YouTube Channel