This article was produced in partnership with The Daily Memphian.
A man who says he was sexually assaulted during a Memphis Police Department stop-and-frisk operation is pursuing a federal lawsuit that relies in part on evidence from a news media investigation into MPD’s reluctance to refer brutality claims to prosecutors.
The Memphis man alleges in U.S. District Court that he was assaulted in the summer of 2019 by an MPD patrolman who inserted his fingers into his rectum to search for drugs while he was handcuffed. The lawsuit contends the assault was part of a “custom, pattern and practice’’ of abuse at MPD that includes a failure to adequately investigate misconduct by officers or seek prosecutorial review.
The suit cites a series of news stories by opens in a new windowThe Institute for Public Service Reporting and The Daily Memphian that identify seven severe use-of-force cases in recent years that MPD declined to send to prosecutors to weigh possible criminal charges.
Those cases include a 2015 opens in a new windowincident in which three officers beat a handcuffed prisoner; another in 2019 when an officer repeatedly opens in a new windowsprayed a handcuffed suspect in the face with a chemical agent; and a 2016 opens in a new windowcase involving an officer who repeatedly electro-stunned a handcuffed suspect with a Taser.
“This was a criminal act and they did not treat it as such,’’ said civil rights attorney Jacob Webster Brown, who filed the suit last month on behalf of his 45-year-old client. Brown contends in the suit that his client’s allegations were investigated as mere violations of policy and that he would not have been subjected to such “conscience-shocking abuse’’ but “for the fact that he is Black.’’
“The City routinely did and does downplay and tolerate instances of egregious police misconduct, including misconduct substantially similar to that described above, and shields its bad cops from public scrutiny or serious disciplinary action,’’ the suit says.
The Institute and The Daily Memphian are not naming Brown’s client, who says that, as a victim of sexual assault, he is shamed and has great fear of the two officers who stopped him as he was walking down a sidewalk in his working-class Binghampton neighborhood.
The original suit last month did not name the officers, whose identities were then unknown, but an amended complaint filed by Brown on Wednesday, Sept. 16, identifies them as patrolmen Christopher Tracy and Justin Vazeii. It is unclear whether the officers remain on the force.
The amended complaint also provides new evidence in support of the man’s claims, noting an MPD internal investigation sustained neglect-of-duty allegations against the officers. Specific findings of the internal investigation are unknown, but available paperwork indicates the matter was investigated as a violation of MPD policy, not as a potential criminal matter.
An MPD spokeswoman and the city’s attorneys declined comment, citing the ongoing litigation.
The city faces a deadline today, Sept. 17, to file a formal response to the suit.
The Institute and The Daily Memphian could not independently confirm the suit’s allegations. The news organizations found minor inconsistencies in the statements of Brown’s client, but not in his larger allegation. Ultimately, police body camera footage may resolve the dispute, though the video remains sequestered for now along with other evidence in the case.
opens in a new windowAccess to those records is emerging as a critical issue in the case.
The city denied a public records request Brown filed in June to access internal documents — a development the lawyer says caused him to miss a one-year statute of limitations deadline when filing the suit and which could lead to its dismissal.
“The city has basically kicked his case to the curb — covered it up — we suspect for a year in the hopes that it would just go away,’’ Brown said.
“The question is: When is the city going to get serious about policing the police?”
As for Brown’s client, he has mixed feelings about coming forward with his allegations:
“I’m kind of angry. But scared at the same time. You know? Because I don’t want to run across these same officers again, and end up another George Floyd.’’
Stop and frisk
Comparisons to opens in a new windowFloyd may be unavoidable. Like Floyd, who was killed by Minneapolis police in May when an officer knelt on his neck for nearly nine minutes, Brown’s client is tall — six feet nine inches — and middle-aged.
“I was just standing on the corner,’’ he explained in a deep, baritone voice as he described that hot, summer day last year when two officers suddenly pulled up in an MPD patrol car. The “corner” he speaks of is the intersection of Red Oak Street and Mimosa Avenue, a well-traveled crossroads in a thriving neighborhood of apartments, single-family homes and well-kept lawns in Binghampton.
Brown’s client stood on the sidewalk there in the early afternoon of July 31, 2019 — still wearing pajamas, he says — talking to an acquaintance when the officers climbed out of the patrol car.
“They just pulled up out of nowhere — one squad car with two officers — and slapped their hood, like, ‘Hands on hood! Now!’ ” he said last week at the Apperson Crump law offices where Brown works.
Brown’s client said he and his acquaintance were both handcuffed, then frisked.
“I was shocked by what (one of the officers) did next,’’ he said, his eyes wide and intense. “He forced his finger in my rectum.’’
The lawsuit identifies the officer as Christopher Tracy, a patrolman assigned to the Tillman Precinct Station. The suit contends that Brown’s client “attempted to pull away from the finger or fingers Tracy had thrust inside of him, but Tracy, by keeping one hand on (the client’s) handcuffs, managed to hold (the client) still and penetrate his anus up to the second knuckle.’’
The suit states that “Tracy subjected (Brown’s client) to the criminal offense of rape.’’ Tennessee’s definition of opens in a new windowrape includes any “intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings’’ of a victim.
Reached by phone Wednesday, Tracy declined to comment.
“I don’t want to speak on that unless I’m being served a subpoena to go to court,” he said. “I refuse to comment on that matter. So, thank you for the phone call.”
Asked if officials deny the sexual assault allegation, opens in a new windowBruce McMullen, an attorney representing the city, said, “I can’t speak to that case.’’
The former chief legal officer for the City of Memphis, McMullen has been retained as outside counsel to defend the city in the suit. He said briefly over the phone that federal court rules don’t necessarily require a defendant to answer charges in a complaint.
“You can answer it or you can move to dismiss it,’’ McMullen said.
He referred questions to current Chief Legal Officer opens in a new windowJennifer Sink, who was out of town and unavailable for comment.
The city released a portion of the internal investigative file to Brown, but the release did not include the statements of officer Tracy and his partner, Justin Vazeii. Their official response to the allegations remains unknown.
The suit names Tracy and Vazeii as defendants along with the city, Tillman Station commander Prentiss Jolly and MPD Director opens in a new windowMichael Rallings. It seeks $850,000 in damages.
Brown’s client said in his Aug. 1, 2019, statement to internal investigators that one of the officers, whose name he didn’t know at the time, “did touch me inappropriately.’’
Asked what he meant, Brown’s client said an officer wearing “thick, military-like gloves’’ had “stuck one of his fingers’’ into “my rectum …
“He said he was looking for I guess illegal substances or drugs or whatever.’’
The client told investigators that the two patrolmen found about a half-ounce of marijuana on his acquaintance, whom he described as the son of a woman he’d once dated. The client said the officers returned the marijuana to his acquaintance and released both of them without charge.
Some of what the client told internal investigators in 2019 differs from what he told a journalist last week.
Though he said in the news interview he was detained that day for three hours, he told investigators the ordeal lasted about a half-hour. He also told investigators that a third officer drove up at one point and asked Vazeii and Tracy, “Did you search their [expletive]s?’’ In his interview he said Vazeii laughed and asked Tracy, “Hey, you check his [expletive] good?’’
Brown’s client also declined to name the acquaintance detained with him that day, saying the man is not interested in pursuing a complaint.
Despite some inconsistencies, Brown’s client is constant in describing his outrage over the incident.
“I’ve been incarcerated the majority of my life,’’ said the client, who’s served time for a variety of drug and firearm offenses. Still, he said he’s never been abused like that before: “I’ve been to prison where people normally get stuff like that done. And this happened on the streets. By Memphis police.’’
He said he believes the officers searched him in part to humiliate him.
“I contacted internal affairs within like maybe 30 minutes after it happened because I was upset. So, when I contacted them I was ranting and raving and going off saying stuff I probably shouldn’t have said about the police. But I was upset. So, he goes like, ‘Well, just come in and see me tomorrow.’ ”
Accessing Public Records
But the client’s memory was fuzzy when he finally decided to sue this summer. He recalled the incident had happened in August 2019, not July.
Brown said after his client hired him in the middle of June he began reaching out to the city for answers. A chief concern involved the statute of limitations that bars any lawsuit filed more than a year after an incident. But after calling the City Attorney’s Office — even personally visiting MPD’s Inspectional Services Bureau offices — Brown said he could get no answers, not even a date of the incident. So, he filed a public records request on June 30.
That request was denied ten days later when the city’s Public Records Office told Brown in an email, “The City has reviewed its files and determined there are no existing responsive records to your request. Per the custodian, the case file is not closed. This is still an open investigation.”
But after filing his suit on Aug. 5, Brown learned from the city the incident had occurred on July 31, 2019 — meaning he’d missed the cutoff by five days. He expects the city now will move to dismiss the suit.
Brown said he’ll ask to roll the statute’s time limit, or waive it, because the city acted in bad faith when it denied his request for public records that would have revealed the correct date.
“MPD denied counsel’s public-records request deliberately and purposefully to conceal from (the client) certain material facts, including without limitation the fact that (he) had an actionable civil-rights claim, the exact date on which (the client’s) cause of action had accrued, and the fact his citizen complaint had been sustained on the merits until it was too late for him reasonably to file an action inside the one-year statute of limitations,’’ Brown alleges in the suit.
Brown also contends — and two experts agree — that while Tennessee law allows police agencies to withhold records of open criminal investigations it does not provide the same protection for records involving administrative investigations like this one.
The governing principle is the Tennessee Supreme Court’s opens in a new windowRule 16 of criminal procedure, which allows police and prosecutors to withhold evidence and records involving ongoing criminal investigations.
“So, internal investigations by the police department about whether someone violated policy would not be subject to rule 16 and therefore would be open,’’ said Deborah Fisher, executive director of the Tennessee Coalition for Open Government, a nonprofit that advocates for public access to government records and proceedings.
Brown’s belief that this case was investigated only as an administrative matter rests in part on MPD’s structure and case numbering.
MPD’s Inspectional Services Bureau maintains two primary units: Internal Affairs, which investigates violations of administrative policy, and the Security Squad, which, according to policy, explores potential criminal allegations “which may be reviewed by the Shelby County (District) Attorney General’s Office that may or may not result in the case being presented to a Grand Jury.’’
Internal Affairs cases are assigned an “I’’ prefix; Security Squad cases receive an “S’’ prefix. The number of this case is listed as I2019-028. Additionally, a letter in the case file says the investigation was undertaken to “determine whether a violation of Memphis Police policies occurred.’’
An independent inquiry by The Institute found no evidence the case was referred to prosecutors for review. District Attorney spokesman Larry Buser said in an email that senior prosecutors he checked with “said they had not seen it.’’ U.S. Attorney spokeswoman Cherri Green wrote in an email: “Neither the FBI nor our office received a referral on this matter from the MPD.’’
Lack of prosecution
“It was handled strictly as an administrative disciplinary matter. So, no, I do not believe they ever considered this as seriously as they ought to have,’’ Brown said. He words his allegation even more strongly in the lawsuit:
“The City routinely protects — and at all pertinent times protected — bad cops like Tracy and Vazeii by declining to refer use-of-force violations and other instances of police misconduct to the Shelby County District Attorney General for prosecutorial review.”
The suit cites recent articles by The Institute and Daily Memphian detailing MPD’s failure to seek prosecutorial opens in a new windowreview of several cases, including a series of incidents in 2018 and 2019 in which an officer used his opens in a new windowTaser on citizens during arrests for minor infractions. The news organizations requested access to that file in July, arguing there is no exemption for administrative records. A city public records officer said Tuesday the request remains under review.
The stories are among a series produced by The Institute and The Daily Memphian in recent months following the killing of George Floyd. The news organizations asked on June 1 to review MPD’s internal investigations of excessive force between 2015 and 2020. Though many of the 90 cases reviewed so far involve less-serious and at times bogus allegations, records reveal a pattern that legal experts have called troubling: Actions that raise questions of possible assault or other criminal conduct are treated as mere violations of policy.
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.
Among 90 MPD use-of-force investigations between 2015 and 2020 reviewed so far, 89 weren’t referred to prosecutors, records show. Available records don’t make it clear whether the other case had been referred or not.
Scores other case files have not been released more than three months after the news organizations first asked for them.
MPD spokeswoman Karen Rudolph said in an email in July that MPD has “no formal process in place for submitting use of force complaints to the District Attorney.’’
MPD has not responded to repeated requests to interview Director Rallings about that practice and whether he might consider reforming it.
Available records of the internal investigation involving Brown’s client state that ISB sustained allegations accusing the officers of neglect of duty and failure to properly inventory and process recovered property.
Brown said he “strongly suspects’’ the property violation involves his client’s allegation that officers returned the half-ounce of marijuana they’d taken off the other man detained that day.
Brown said the only records he’s received so far from MPD involve his client’s statement to internal investigators and a July 28 letter from ISB Commander Jasper Clay to his client informing him the administrative charges had been sustained. Brown said his client never received the letter, but even if he had, it was less than adequate notification.
“So, three days before the one year statute of limitation was set to run’’ they send the letter, Brown said. “Sending that out (then) to the complainant is just not reasonably calculated to reach that individual in time for him to protect his rights.’’
Brown said he hopes Mayor Jim Strickland considers these revelations as he continues to weigh police reform measures.
“There is a serious problem within the department. This incident is just one example of this kind of conduct towards the public,’’ he said.
This story first appeared at dailymemphians.com under an exclusive use agreement with The Institute. Photos reprinted with permission of The Daily Memphian.