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District Attorney asks MPD to Send all excessive force findings for criminal review

Request follows The Institute’s finding MPD fails to refer severe brutality findings for prosecutorial review.

Shelby County District Attorney Amy Weirich (center) has asked Memphis Police Director Michael Rallings (left) to begin sending all confirmed cases of excessive use of force to her office to determine if criminal charges are merited against the officers. (Daily Memphian file)

This article was produced in partnership with The Daily Memphian.

District Attorney Amy Weirich has asked Memphis Police Director Michael Rallings to begin sending all confirmed cases of excessive use of force to her office to determine if criminal charges are merited against the officers.

MPD Director Rallings refused to comment. A police spokesman confirmed the department has received the request and is working on it.

Weirich’s request follows a series of stories by  opens in a new windowThe Institute for Public Service Reporting and The Daily Memphian that identified repeated instances of severe brutality that Memphis Police Department treated as simple violations of policy but did not refer to prosecutors.

Those cases include a 2015  opens in a new windowincident in which three officers kicked, punched and humiliated a handcuffed prisoner; another in 2019 when an officer sprayed a chemical irritant into the face of  opens in a new windowmentally ill man as he was restrained in handcuffs; and a 2016  opens in a new windowcase involving an officer who repeatedly electro-stunned a handcuffed suspect with a Taser.

“You’ve done a good job digging up some of these cases,’’ Weirich told The Institute. Records show her office received just two referrals among 130 MPD internal use-of-force investigations between 2015 and 2019 that The Institute and The Daily Memphian have reviewed so far.

The city still has not released records from scores of files the news organizations requested under Tennessee’s Public Records Act on June 1 as protests roiled in Memphis and across the country following the police killing of George Floyd in Minneapolis.

A spokesperson for MPD has said the agency has no formal policy governing when to refer cases to prosecutors. Weirch said she’d like MPD to start referring all cases in which internal investigators determine that use-of-force rules have been broken.

“It doesn’t mean we’re going to indict every one of these cases, but just send it to us for review,’’ she said.

“If we had a policy in place where law enforcement sent the DA’s office every case where there was a finding of excessive force – not every case where there’s an allegation of excessive force – but every case where there’s a finding, it would, I think, be a simple (resolution) to a complex issue.’’

Weirich offered no timetable for her proposal, but said Rallings has told her that his staff is “at the drawing board, kind of looking at it.’’

Rallings did not respond to a message left Monday on his cell phone seeking an interview.

Spokesman Louis Brownlee reiterated in a three-sentence email that MPD has no “formal process’’ for referring excessive force cases to prosecutors but confirmed the agency is in discussions to possibly change that.

“We are currently in communication with General Weirich concerning this matter. We are also working on an internal policy that would establish the process to submit such cases to her office for review,’’ Brownlee said.

MPD’s Inspectional Services Bureau reported 213 complaints of excessive force between 2015 and 2019. Though the total number of complaints found to be valid is not available, records show allegations in many cases are dismissed or ruled unfounded.

For example, investigators sustained excessive force allegations in 26 of the 130 cases reviewed by the news organizations, or 20 percent. Those excessive force findings generally led to suspensions ranging from a few days to ten or more depending on the severity of the case.

Since 2015, MPD and the Shelby County Sheriff’s Office have been referring all fatal officer-involved shootings to the Tennessee Bureau of Investigation and the District Attorney’s Office for review.

But records suggest cases that don’t involve firearms or fatalities are seldom referred.

One of the two cases referred among the 130 reviewed by the news organizations involves a May 2018 case in which officer Brandon Jenkins was seen punching and kicking a prisoner in “the facial area’’ as the prisoner was handcuffed to a chair.

Jenkins received a 17-day suspension for violating department rules governing use of force and personal conduct for beating detainee Nechoe Lucas who’d been arrested on a misdemeanor assault charge. Video shows officer Jenkins hitting and kicking Lucas as both of the prisoner’s hands were handcuffed to the armrests of a chair.

“He spit,’’ Jenkins told supervisors, explaining why he did it. “I went over and started punching him. They pulled me off of him. A supervisor came out.’’ According to reports, the still-unreleased video shows Jenkins punching Lucas several times and kicking his head at least twice. Jenkins acted in “frustration’’ after the “aggressive’’ and “antagonistic’’ suspect spit “a mouthful of fluids and bloody spittle on Officer Jenkins,’’ a report says.

“This case file was submitted to the District Attorney General’s Office for review,’’ a case summary says. “Based on all facts and circumstances, no criminal charges will be filed against Memphis Police Officer Brandon Jenkins.’’

MPD did not say Tuesday if Jenkins remained on the force but records show he was there as of June.

The case illustrates how difficult it can be to  opens in a new windowprosecute police for actions taken in the line of duty. It’s a nationwide phenomenon rooted in part in sympathies that prosecutors and the larger public often hold toward police and the dangers and challenges they face on the street.

It also illustrates how elusive the city’s records on excessive force can be.

Paperwork for the case was discovered earlier this month by a journalist visiting MPD’s Central Records on another matter. The paperwork was in a box along with records from 24 other excessive force investigations that The Institute and The Daily Memphian had first requested four months earlier.

Kenneth B. Nunn
Kenneth B. Nunn

Lack of transparency and bias favoring officers are reasons for greater oversight of police departments, said Kenneth B. Nunn, a professor at the University of Florida’s Levin College of Law who studies criminal law and procedure.

“That’s what local media is for, is to keep an eye on what the local government is doing, including the police department,’’ Nunn said.

“So, from my perspective, I just think that it’s a good idea for there to be a citizen complaint review board on one hand and in addition to that for there to be a good investigative reporting structure to be able to let the public know what the police are doing.’’

Critics have long argued that Memphis’s citizen oversight panel, The Civilian Law Enforcement Review Board, needs greater powers, including the power to subpoena records.

One reform MPD has already adopted in the wake of the investigation by The Institute and The Daily Memphian involves the adoption of a “Complainant Rights Form’’ that citizens making excessive force complaints are required to sign. The form advises a complainant of his or her right to pursue criminal charges against an officer in addition to filing an administrative complaint.

The Complainant Rights Form consists of a few lines to record the date, time and location where a citizen is advised of their rights. It states: “I, (name here), have been advised of my right to have a criminal report taken in addition to my complaint of excessive force made in the Inspectional Services Office.’’ That’s followed by a space for the complainant’s signature.

MPD maintains it has always advised complainants of this right but is now documenting it in writing.

Josh Spickler, executive director of the criminal justice reform organization Just City said he doubts the new form will bring about true reform or force authorities to treat brutality seriously.

He was cautiously optimistic about Weirich’s proposal to systematically refer excessive force findings for prosecutorial review.

“It’s taken us to 2020 to get a district attorney to say, yeah, we’re going to start doing that. That’s disappointing. But it needs to happen,’’ Spickler said.

“We don’t want police officers going down too different of a path when there are credible allegations that they’ve committed a crime. And so that’s progress. But I think ultimately what your reporting has found is that all throughout this process, whether there’s a formal referral to the DA’s office or not, before you get there this whole entire process is opaque.’’

One thing MPD can do to make the system more transparent is to release body camera footage and excessive force records on a more timely basis, he said. 

Weirich said she hopes her proposal will help improve confidence in the criminal justice system.

“It’s all about public trust,’’ she said.

This story first appeared at dailymemphian.com under an exclusive use agreement with The Institute. Photos reprinted with permission of The Daily Memphian.

Marc Perrusquia
Written By

Marc Perrusquia is the director of the Institute for Public Service Reporting at the University of Memphis, where graduate students learn investigative and explanatory journalism skills working alongside professionals. He has won numerous state and national awards for government watchdog, social justice and political reporting.

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