Subpoena power at heart of community oversight board fight

Friday, February 15, 2019, Vol. 43, No. 7
By Sheile Burke

As Nashville gets its newly formed community oversight board up and running, some are accusing Republican state lawmakers of trying to gut the powers these police monitors need to be effective.

The mayors of both Nashville and Knoxville have expressed opposition to what state legislators are doing, and Republicans in the General Assembly and activists in Nashville appear to have dug in for a fight.

A bill moving through the state Legislature that would cut the powers of civilian oversight boards in Tennessee has the backing of Gov. Bill Lee and has attracted even more Republican sponsors.

Meanwhile, activists who fought for Nashville to have its own community oversight board are threatening to unleash a nationwide campaign urging athletes to boycott Tennessee schools and universities if the proposal becomes law.

Nearly 60 percent of voters in Nashville voted in November for the creation of the board.

Civil rights activists say the bill is an attack on Nashville because Memphis and Knoxville have long had their own oversight boards, and the state Legislature did nothing until now.

“Let’s be frank, it’s undermining popular democracy,” Sekou Franklin, a representative of Community Oversight Now says of the bill in the General Assembly.

His group forced the referendum on the Nashville ballot by getting more than the number of signatures required to put it to before voters. That came in the wake of two officer-involved shootings in Nashville in separate incidents where two African-American men were shot and killed by white police officers.

One of those officers has since been charged with murder.

Civilian oversight boards that monitor police departments are not new. But conversations about them have gained traction around the country in recent years following a series of police shootings of African-American men. Technology, through the use of police body cameras and cellphone video, has captured some of those deadly encounters, and the images broadcast have been jarring and galvanized calls for change.

The idea of a community oversight board is to have civilian monitors play a watchdog role in ensuring that police are not violating the civil rights of citizens. They have also been billed as a way to help police build bridges by helping citizens gain trust in law enforcement.

How effective they are has been a matter of debate, but those who support them in Tennessee say state lawmakers are ripping away powers these boards need to have to fulfill their mandate.

Under the bill, which is being sponsored by Michael Curcio, R-Dickson, the oversight boards would be stripped of their subpoena powers. But losing the ability to compel witnesses to testify and to force the production of documents isn’t the biggest problem some have with the legislation.

The bill also stipulates any document provided to a community oversight board that is confidential under public record laws shall not be released to the public.

State law stipulates investigative files of the Tennessee Bureau of Investigation are not public record. And the Tennessee Supreme Court has ruled that records held by any law enforcement agency are confidential if they involve a pending investigation.

“I think the way this bill is worded, it’s kind of saying ‘everything we give you is going to be confidential,’” explains Liana Perez, director of operations for the National Association for Civilian Oversight of Law Enforcement.

That provision in the bill is going to prevent boards from communicating with the public, Franklin adds. To be effective, he says, the boards need to inform the community about traffic stops, deadly use of force, racial profiling and other civil rights violations.

“If you look at this bill, it limits the ability to do basic reporting that every single ethics watchdog group would say that you need,” he says. “It’s designed to limit reporting. It’s designed to make the oversight boards totally subject to scrutiny by the state-authorized committees.”

The boards could have a difficult time under the provisions of the bill, Perez says.

“They’re going to be hampered in their ability to do their work because if the (police) department is not allowing them access to their investigative records, and then they’re basically saying, ‘and even if we do, it’s considered confidential, so you can’t use it in your work,’ then they would be hampered.”

For his part, Curcio denies his bill is an effort to stop the boards from fulfilling their mandate or is directed at Nashville. He says that he had gotten a lot of questions about community oversite boards and realized nothing had been written in state law about them.

“The bill simply sets out some guidelines for what community oversite boards are and then creates a basic parameter.”

Curcio also adds that he wants to set best practices for the boards, and he looked at what the National Institute of Justice had to say about it. It’s standard practice across the state for investigative files to become public only after the conclusion of an investigation, Curcio says.

He also noted that subpoena power isn’t very effective because officers can just come in and plead the Fifth Amendment and not talk.

It is common for police to legally challenge a board’s subpoena, Perez, of NACOLE, notes. Still, she says, backers of Nashville’s board likely included the power because they thought they needed it.

Knoxville’s board has never issued a subpoena, but it’s vital to have the ability to do so, says Clarence Vaughn III, executive director of the Police Advisory and Review Committee.

“It was never used, but by having it they knew that was an option if cooperation was not given,” he says. The oversite board in Knoxville began in 1998.

The Civilian Law Enforcement Review Board in Memphis does not have subpoena power, but it can ask the city council to issue a subpoena.

The Daily Memphian reported that the board has used the council’s subpoena power once, which involved a complaint of excessive force against Memphis police in 2011. However, city attorneys are still reviewing that case and, as a result, the witnesses, including police, have yet to be subpoenaed. The Memphis board was first established in 1994.

Nashville’s board was deliberately set up to exclude active members of the police department or anyone who had been in law enforcement for the past five years. The law also says that at least four people on the 11-member board must come from economically distressed areas in the city.

If the bill in the Legislature passes, those provisions would be out.

The bill, as it is written, states a “community oversight board shall not restrict or otherwise limit membership based upon demographics, economic status or employment history.” That language is included, Curcio says, because he wants to make the boards as diverse as possible, ridding it of any restrictions.

Franklin, of Community Oversight Now, calls it discriminatory and says the Nashville board is probably the most diverse board in the whole state.

“The Nashville oversight board mandated that you have poor people from economically distressed communities, because these are the communities that face the most interaction with law enforcement.”

The organization has threatened to call for athletes to boycott signing with Tennessee colleges and universities if the bill becomes law. “Now we are willing to stop it or withhold it, if the lawmakers stop it, if they pull the bill,” Franklin says.

“That’s unfortunate,” Curcio says of the threatened boycott, adding no one with Community Oversite Now has even spoken to him.

The offices of Nashville Mayor David Briley and Knoxville Mayor Madeline Rogero did not comment on the threatened boycott. Briley says voters made it loud and clear that they supported the board.

“It is my responsibility as mayor to ensure their will is carried out and that our COB is expeditiously and effectively implemented,” Briley said in his statement.

Mayor Rogero says Knoxville’s board has been very effective for the past 20 years and has built a collaborative relationship between police and the community.

“We respectfully request that the state Legislature take no action to pre-empt the operation of Knoxville’s well-respected, longstanding and effective Police Advisory & Review Committee,” Rogero said in her statement.

Gov. Lee has stated his full support for the bill in the Legislature. He says there already is a process for investigating deadly police shootings and “what’s most important to me is that due process is carried out,” The Associated Press reports. “I don’t think subpoena power should be given to that board because it changes the due process for law enforcement.”

The Nashville Fraternal Order of Police has been vocal in opposition of an oversight board and even sued unsuccessfully to keep the option off the ballot. The FOP did not return a call seeking comment.

There was considerable resistance by police initially in Knoxville when that board got started more than 20 years ago, Vaughn recalls. It too was born out of a number of police shootings. But over time, he adds, things evolved.

“We had a former chief of police who said he was against it. He was against oversight,” Vaughn says. “He was not a fan or supportive. But he said, after time, he saw that it’s a benefit for local law enforcement, specifically for the Knoxville Police Department, to have it because you get a pulse check of what community members feel, not only about law enforcement, but what is a way that law enforcement can better engage community members.

“So over time, he became one of our main advocates.”