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Criminal Justice and Policing

Lawsuit Seeks MPD Records On Troubled Officers

Public should know how supervisors intervene before behavior erupts into brutality and other troubles, suit contends

An officer allegedly puts a teenage girl in a chokehold in this 2016 incident from MPD body camera footage.

Former homicide detective Eric Kelly faced dozens of citizen complaints and misconduct allegations before he finally took a plea last year in Criminal Court regarding a sexual relationship he’d had with a murder suspect.

Personnel files documenting his 26 years at the Memphis Police Department bulge with infractions ranging from discourtesy and negligent driving to more-serious allegations involving illegal searches, untruthfulness and excessive force. MPD had even fired Kelly in 1998 for allegedly beating a juvenile, though he won back his job in an appeal to the Civil Service Commission.

Eric Kelly

The now-retired officer abruptly quit in 2019 amid an investigation into a  opens in a new windowrelationship he had with a woman he was investigating in connection with a grisly murder. Kelly eventually pleaded guilty to a single misdemeanor count of official misconduct and received a diversion deal that will wipe his record clean if he successfully completes a year of probation.

But missing from Kelly’s publicly released MPD file are details spelling out steps police supervisors took while attempting to correct his behavior.

Now, a public records lawsuit seeks to unearth those records.

The suit filed Tuesday, April 26, in Shelby County Chancery Court by journalist Marc Perrusquia against the City of Memphis seeks access to any so-called Performance Improvement Plans that supervisors developed for Kelly and two other officers.

According to its Policies and Procedures Manual, MPD develops Performance Improvement Plans for troubled officers like Kelly to help correct noncompliant behavior before it erupts into major problems such as brutality or corruption. The plans are a critical component of MPD’s Performance Enhancement Program, a “non-disciplinary … structured system” that’s “designed to identify and manage behaviors that result in performance related problems.” The program attempts to correct behavior through “coaching, training and professional development.”

According to the suit, Perrusquia filed requests under the Tennessee Public Records Act in late 2020 to obtain copies of Performance Improvement Plans issued for Kelly as well as officers Colin Berryhill and Justin Vazeii. But MPD denied Perrusquia’s requests the following February contending the records he sought were exempt from the public records act.

Paul McAdoo, an attorney with the Reporters Committee for Freedom of the Press, which filed the suit on Perrusquia’s behalf, said the public has a compelling interest in knowing details of the ways police agencies attempt to correct behavior.

“We think it’s … important to understand how law enforcement agencies try to help officers when they’re struggling, and these records would help show how the City of Memphis did or did not try and help these three officers,” McAdoo said.

MPD did not immediately respond Thursday to a request for comment.

According to the lawsuit, the city denied access to the records by citing a section of state law that requires confidentiality for a range of records including medical and health records. The citation did not cite a specific subsection of Tennessee’s confidential records provisions found in Tennessee Code Annotated 10-7-504.

But it’s believed the city is relying on a provision that exempts records of any government-sponsored Employee Assistance Program or EAP. MPD’s Performance Enhancement Program or PEP contemplates possible referrals to the city’s outside EAP provider, CONCERN, for counseling and treatment involving a range of emotional and personal problems including drug and alcohol addictions and marriage and financial troubles.

However, PEP offers a number of other internal interventions including anger management, cultural awareness education, remedial firearm or driving training and conflict resolution coaching.

PEP has been on MPD’s books for years, though details on its precise origin weren’t available for this article.

MPD’s Policies and Procedures manual states that PEP tracks 11 “performance indicators” including firearm discharge, non-lethal use of force, vehicular pursuits, crashes, citizen complaints, and abuse of sick leave to identify any “pattern of at-risk behavior” among officers. Supervisors begin focusing on an officer when certain thresholds are met, such as using force three times in a three-month period or incurring two traffic accidents within a year. “Associated factors” then are considered, including any formal violations of MPD rules.

Officers identified as at risk receive a Performance Improvement Plan, or a “written … plan agreed upon by the member, reviewing supervisor, and workstation commander designed to reduce or eliminate identified behaviors that contribute to PEP Indicator Entries.” MPD’s manual says the plan “must describe the behaviors to be addressed, actions designed to change those behaviors, measures to enable both the member and the supervisor to gauge progress and a time-line for reaching the objective of changing, moderating, or eliminating the behavior(s).”

The plaintiffs are interested in any Performance Improvement Plans developed for Kelly, now 51, given his long and well-documented history of disciplinary trouble.

Perrusquia, the journalist, also requested Performance Improvement Plans for officer Colin Berryhill, who was nicknamed  opens in a new window“Taserface” by a supervisor following a series of incidents in which he misused his department-issued Taser on citizens. Perrusquia and the Reporters Committee  opens in a new windowfiled a lawsuit last year to gain access to body camera footage of those incidents, which included one in which Berryhill electro-shocked a juvenile in the back.

Colin Berryhill

Berryhill has since resigned from MPD. Stories by the  opens in a new windowInstitute for Public Service Reporting about excessive force violations by Berryhill and other officers led District Attorney Amy Weirich to create a special prosecution unit called the  opens in a new windowConduct Review Team to review use-of-force cases. The CRT has since filed criminal charges against two Shelby County law enforcement officials. It  opens in a new windowdeclined to file charges against Berryhill.

Perrusquia also requested Performance Improvement Plans for officer Justin Vazeii following an Internal Affairs investigation into a  opens in a new windowJuly 2019 incident involving a stop-and-frisk operation. Internal Affairs sustained a neglect-of-duty charge against Vazeii after he frisked a detainee and found a bag of marijuana, but did not arrest the suspect.

Justin Vazeii

According to reports and body camera footage of the incident, Vazeii asked a second officer who was frisking another suspect, “Did you check his a– crack yet?’’ When that suspect complained about his treatment, “Officer Vazeii was heard on BWC (body-worn camera) saying ‘I can make this look like whatever I want it to look like,’’’ an internal report said. “… When the suspect again questioned the probable cause for being checked, Officer Vazeii said, ‘In this area, I can put it however I want.’’’

Perrusquia serves as the director of the Institute for Public Service Reporting but he filed his suit against the city as a private citizen.

The Reporters Committee’s McAdoo said the public’s right to know about MPD’s efforts to correct behavior through Performance Improvement Plans trumps any privacy concerns.

“A lot of governmental agencies have files that I’m sure they would prefer to keep secret and some organizations are more openly transparent and less assertive in their interpretations of public records exemptions,” McAdoo said. “In this case, we disagree with the assertion from the city that these are exempt.’’

This story first appeared at dailymemphian.com under an exclusive use agreement with The Institute.

Written By

Ben Wheeler is an intern for the Institute for Public Service Reporting and a graduate student in the University of Memphis’ Journalism and Strategic Media Department, where he studies News & Storytelling.

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