Atlanta Council Subpoenas APD to Testify on Eagle Raid to CRB
By Matthew Cardinale, News Editor, The Atlanta Progressive News (March 07, 2010)
(APN) ATLANTA -- The Committee on Council of the City Council of Atlanta approved subpoenas on Monday, March 01, 2010, for 18 Atlanta Police Department officers to testify before the Atlanta Citizens' Review Board regarding the September 2009 raid of the Atlanta Eagle.
The officers had previously refused to testify. In addition, neither the APD nor Mayor Kasim Reed's Administration had instructed them to testify.
The committee voted unanimously, 4-0 to approve the subpoenas, which were signed immediately by Chairwoman Felicia Moore (District 9). Also voting yes were Members Cleta Winslow (District 4), Alex Wan (District 6), and Joyce Sheperd (District 12).
"I'm disappointed that after six months we're still here," Wan said during the hearing. "Especially since the reaction the public had then was, great, we're not gonna get anywhere on this; and sure enough we've come to fulfill that expectation on a negative side."
"Our job here is to uphold the ordinance, and the ordinance that this body created gives the Citizens' Review Board authority to come ask the Council for subpoenas. We have that authority to issue that," Wan said.
"What happens after that, we can't control. That's not our decision to make. If an individual [officer] decides he or she still wants to exercise whatever rights he or she believes he or she has [to still not testify], that's their decision. That enters into a whole other court for interpretation or resolution," Wan said.
Councilwoman Winslow noted that police officers ultimately still have the right to speak or not speak even after the subpoenas are issued.
"People have the right to speak or to not speak... whether that person should then be reprimanded for that, I'm not going to speak to that because that's not within my purview, that's within the Department's purview," Winslow said.
Several members of the public came to make public comment in support of the subpoenas, including the present writer, also an Eagle patron; Maceo Williams, CRB Member; Seth Kirschenbaum, CRB Vice Chair; Zuri Murphy, Atlanta Building Locally to Organize for Community Safety (BLOCS); and Joy Morrissey, the new CRB Chair, who is openly homosexual.
About 15 other members of Atlanta BLOCS were present in the audience, wearing green hats and t-shirts in support of the subpoenas.
Don English, General Counsel for the Police Benevolent Association, made comments in opposition to the subpoenas, noting that at least one officer facing the possibility of a subpoena was a PBA member.
Public comments were limited to three minutes because the Full Council meeting was scheduled only two hours after the Committee meeting. The CRB and Mr. English were each allotted an additional ten minutes to present their opposing sides.
"The Citizens' Review Board was brought together because of infractions in our City dealing with the Kathryn Johnston murders and the fact that everyone is accountable," Williams said.
"And there's been 39 individuals who don't want to recognize that," Williams said, referring to the 18 involved in the Eagle case and an additional 21 involved in various other cases. They've refused to come testify. We've talked to different individuals in the City... in the police department, still the police department doesn't want to recognize our particular organization," Williams said.
"If you refuse to appear, there should be some kind of consequence," Williams said.
"If they won't cooperate and you all won't force their hand, we should all go home, there's no need for us to be here in the first place," Williams said.
"This is a fundamental moment in the history of this Board," Kischenbaum said.
"We're here because the law [creating the CRB] is in place and right now it's being violated. I think all of us that are here in BLOCS are very disappointed that we have to show up today," Murphy said.
"That's very disappointing to me as a citizen... that we have to beg them to obey the law," Murphy said.
POLICE UNION ARGUES AGAINST SUBPOENAS
In expressing opposition to the subpoenas, English cited a case, City of Denver v. Glover. He argued that the police officers would be willing to testify if they were ordered to do so by their superiors in the APD, but not otherwise.
In other words, not only did APD's failure to order the officers to testify before the CRB make the subpoenas appear necessary in the first place, but English argued that APD's failure to do so also also jeopardized the officers, making the PBA want to oppose the subpoenas.
"The case held when an officer is required to give a statement before a citizens' review committee like this one, they [the CRB] are not part of his chain of command. Therefore, any statements he or she gives to the CRB is not protected from any use in any later criminal prosecution that may arise," English said.
"All of the officers... they appeared, they cooperated [by showing up], but they are not required to waive their Constitutional right not to be a witness against themselves," English said.
"The law as I understand it from a number of different sources, is that when an officer is ordered to testify by his or her superior... those compelled statements cannot be used down the road in any criminal prosecution, but the same does not cover statements given to the CRB," English said.
"A number of officers that I'm aware of have respectfully declined to answer questions unless their department orders them to," English said.
CRB DISPUTES POLICE UNION
CRB Executive Director Cristina Beamud disputed English's argument.
"This ordinance was passed two or three years ago in order to address issues the City Council felt were issues of trust regarding the police department and the community it serves," Beamud said.
"The board itself is made up of 11 members who volunteer their time to perform some very serious work... and it would defy common sense to believe that the City and the City Council would ask board members to perform this very serious, complicated, and important service without giving them the tools that they need in order to perform it," Beamud said.
"In the ordinance... you in fact did give the board the authority to require police officers or corrections officers... to appear and submit to interview... Little did we imagine that we would be sitting here at this time again asking for subpoenas to require the City's employees to do what the ordinance requires them to do," Beamud said.
"There have been a total of 39 officers in different cases who have refused to testify. This is troublesome. You can't perform oversight if you only have access to half of the facts, and in order to get the full picture and perform this work in an independent and fair-minded way, the Board needs to hear the version of the incident as presented by the police officers," Beamud said.
"Without their input it's a very unbalanced and perhaps even unfair system," Beamud said.
"There's been some issues concerning two things- a civil case that is pending and the fact that there's some sort of Constitution right not to be interviewed that they may remain silent. In this case the allegations are not criminal in nature, they're civil in nature, so the 5th Amendment does not even apply," Beamud said.
"Secondly, the civil case, there is a civil case, there is no rule or privilege to deny an interview in any form when you're required to give an interview because there's a civil case open. Let me give you this example. If a person is aggrieved by the work of a doctor and that person brings a malpractice claim against the doctor, then the person goes to the licensing board... they don't stop the investigation into the doctor's conduct because there's a civil case going," Beamud said.
"The boards to regulate lawyers or any other profession do not give any deference to the civil case," Beamud said.
Beamud also cited a case called the Scopps [spelling unknown] case. In this case, she said, "As it turned out- the fact that the city... investigated the allegations of misconduct and the officer was disciplined, allowed the judge to decide that the city should have no liability."
"Because when you don't investigate complaints and do nothing about them you can be held liable for failure to supervise. Where you address the issues and concerns of a complainant promptly, and you take the appropriate action, the courts will find that the city acted properly," Beamud said.
"So my point is, by investigating the cases before the end of the civil case, you assist the city in defending the suit, not hurt the city," Beamud said.
"If we had to wait, like the Mayor is suggesting, until the civil case is over to get our questions answered, it could be four or five years before we get interviews. That flies in the face of what the Mayor said during his campaign that he wanted a thorough, transparent, and speedy investigation of the Eagle bar case," Kirschenbaum said.
REED RAISED CONCERNS ABOUT SUBPOENAS
Mayor Reed, in an interview with Project Q Atlanta, raised concerns about the subpoenas, saying they could give the Eagle bar and patrons "two bites of the apple."
"What we're doing is reviewing the [CRB] ordinance to try and figure out how to make the ordinance work," Reed said. "The plain language of the ordinance says that officers can be required to appear before the Citizen Review Board but cannot be required to testify."
It should be noted, however, that Councilwoman Moore read Atlanta's CRB ordinance aloud and noted that it does require them to appear as well as testify.
"That goes to the bigger issue, why the police department, which is not here to talk on this issue, they [officers] should be ordered to testify," Moore said. "The police department is a part of the city, the city code requires them [officers] to do that, there's no reason why the department shouldn't require or order them to follow the law."
Kirschenbaum said in his remarks that most laypersons find it laughable that the police position is that they are literally only required to show up.
"There is a step [City] Council can make by providing a subpoena and requiring them to testify. That is one step," Reed told Project Q.
"If officers are compelled to testify, they will be indemnified, of course, but the city will not," Reed said. "The fact of the matter is that there is a lawsuit pending and having officers come in and give testimony in that instance could have significant liability repercussions for the City of Atlanta and that's not something that you can simply toss aside in a cavalier way," Reed said.
EAGLE CO-OWNER, BLOCS MEMBERS DISAPPOINTED IT CAME TO THIS
"Them [APD] not cooperating on this issue doesn't surprise me. It would've been nice for the Chief of Police to say, you ought to talk to the CRB. It's mandatory in other states," Eagle co-owner Robby Kelley told Atlanta Progressive News.
"Yes I am happy the fact they issued the subpoenas and are making the police personnel come in and answer questions about what happened," Kelley said.
In a statement issued at the time of the Eagle raid during the Mayoral campaign, former State Sen. Reed demanded a CRB investigation. "I am calling for an immediate, thorough and transparent investigation to be conducted by both APD and the Citizen Review Board. At the conclusion of this inquiry, if misconduct is found to have taken place, the officers should be held accountable," Reed said.
However, while Reed the candidate called for the CRB investigation, Reed the Mayor has not called for police cooperation with the same.
"I don't honestly think that he [Reed] has quite lived up to our expectations on the case. I don't think he even looked into the case like he said he would," Kelley said.
"I don't think we got two bites of the apple. I don't think we got any bites of the apple because nothing's been done," Kelley said.
Kelley added that if the City was so concerned about police officers testifying twice that they would have dropped the charges against the Eagle 8. The criminal case against the four men dancing in their underwear without a go-go dancer permit [even though no such permitting process exists] and the four staff members goes to trial this Thursday, on March 11, 2010.
"The CRB can only make recommendations if they decide the police did something wrong... that the police officers be suspended or something. More than likely that won't even happen," that the City would accept the recommendations, Kelley said.
Kelley said five patrons and staff of the Eagle, including himself, filed complaints with the CRB, and that all five of them had already been interviewed.
Kelley worries that even with the subpoenas, that the officers can still refuse to testify, and he doubts the City would discipline them in that case. "They're probably gonna get up and walk out of the room, and get a pat on the back from someone at the police department. They'll continue doing their job, nothing's gonna come of it. If it's not going to be upheld by the police department then it's pointless."
The irony, again, is that, according to the PBA, the officers would have been happy to testify if they had only been ordered to do so.
Atlanta BLOCS, who has a member of the new police chief search committee, wants to make sure the new police chief will order officers to testify before the CRB.
"That's really one of the reasons BLOCS thought it important to get involved with search committee. It's important to have a police chief who'll require officers to testify. We need an Administration who's supportive," Tamika Middleton, BLOCS member, told APN.
During the Mayoral campaign, Reed and other candidates signed a BLOCS pledge including promising a new chief who would "support and comply with" the CRB. "Absolutely, that means require them [officers] to testify," Middleton said.
"The greater concern is police accountability, and police not acting in ways that are harming the community they're supposed to serve. The Council put in place the [CRB] ordinance for a reason. We can't allow that to not be upheld, no matter how many bites of the apple it is," Middleton said.
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Matthew Cardinale is the News Editor for The Atlanta Progressive News and is reachable at firstname.lastname@example.org.
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