A CLERB With Teeth Subpoena Power Is Irrelevant

By STEVE MULROY

In this climate of heightened interest in police reform, people on almost all sides acknowledge (or pay lip service to) the utility of civilian oversight. True independent oversight is essential to curb police abuses regarding excessive force in particular and over-policing in general.

Here in Memphis, we have such oversight, but in name only. A broad consensus for improving this situation has gotten sidetracked on the largely irrelevant issue of subpoena power.

It’s widely recognized that our Civilian Law Enforcement Review Board (CLERB) is powerless. CLERB is made up of well-regarded attorneys, clergy, medical professionals, persons with law enforcement backgrounds, and community leaders appointed by the Mayor and confirmed by the City Council. It is supposed to investigate citizen complaints about law enforcement in a wide variety of matters—not just excessive force, but search and seizure, and even disrespectful demeanor. It can recommend both disciplinary action as well as policy changes.

But CLERB has no ability to require MPD to provide documents or testimony, and MPD rarely cooperates. CLERB makes recommendations for discipline in individual cases, and changes to common practices, which routinely go ignored by MPD. The late Rev. Ralph White, former CLERB chair of the board, called CLERB a “toothless tiger,” and MPD’s response to CLERB “insulting.” The futility was so apparent that CLERB members stopped meeting for a while.

Last year, the state legislature piled on, clarifying that CLERB did not have subpoena power. To compel documents or testimony, CLERB must get a majority vote of the City Council, on a case-by-case basis. Given the City Council’s schedule and bandwidth, this is impractical, placing the burden of time and inertia on those seeking transparency and accountability, thus reinforcing the status quo.

The Mayor and Police Director have recently promised reform, stating they would “consider” lobbying the state legislature to give CLERB subpoena power. This reform is as toothless as CLERB itself—even if the City were to so lobby, the chances of success are remote. More importantly, it ignores an obvious and more effective solution.

The City is directly in charge of how its officers cooperate with CLERB investigations. It can require that MPD cooperate fully with all document and witness requests, and abide by any of its recommendations. It does not need subpoena power for that. True, the City cannot compel third parties to cooperate absent a subpoena, but that’s rarely an issue. Third parties—members of the community—are normally only too happy to cooperate with CLERB. Indeed, it’s their complaints that usually initiate a CLERB investigation.

The Mayor could issue an executive order tomorrow requiring that the Police Director comply with all CLERB document requests, absent a clear and convincing finding that a particular request would jeopardize a cooperating witness, ongoing investigation, or was unduly burdensome. Such an order could also require that any city employee (including MPD) must appear to answer questions before CLERB on proper notice, subject of course to selfincrimination and other applicable privileges.

The order could also impose a strong presumption that CLERB recommendations be followed. If the MPD Director wishes to disregard an investigative request or a disciplinary or policy recommendation, he would have to explain why, in writing, and communicate that to both the Mayor and the City Council. All such explanations would of course be public records.

If the Mayor declines to act, the City Council could step in. It could pass an ordinance requiring the above.

Some may object that such a Council ordinance would be counter to the recently passed state legislation requiring case-by-case action. But that is only in the ordinance governing internal affairs and directing City employees.

Others may object that this would raise separation of powers concerns regarding encroaching on the Mayor’s prerogatives. But the City Council passes ordinances which govern the conduct of city officials all the time.

But even if such bold City Council action were considered legally questionable, or considered a bridge too far politically, the Council could, at a minimum, require that the MPD Director justify each CLERB refusal in writing to the Council, teeing it up for case-by-case action. And the Council could amend its internal rules to provide that MPD-denied CLERB subpoena requests would automatically go on its consent agenda, where they would be teed up for routine approval. Given the current makeup of the Council, some Council members may very context of a “subpoena”—this would simply be a City

well exercise their prerogative to take it off the consent agenda. But that would still force the Council to an upor-down vote.

We need a culture where cooperation with CLERB is the norm and refusal the exception. We need to call attention to each instance of obstruction, and force our elected leaders to say whether they’re ok with it. This by itself will not solve the problem, but it’s the least we can do. 

Steve Mulroy is a former federal prosecutor and University of Memphis law professor, who teaches and publishes in the areas of, among other areas, criminal law and procedure.