Bringing in TBI to investigate deadly force by police raises transparency question

The Tennessean reports today that two of the state’s major police departments – Knoxville and Nashville – are opposed to a proposal that would hand all investigations into local police killings to the Tennessee Bureau of Investigation.

When someone is killed by a local law enforcement officer, the large police departments in the state historically have conducted their own investigations to determine if lethal force was justified, or if there was wrongdoing on the part of the officer. Under open records law in Tennessee, documents from a closed police investigation are accessible to the public, allowing transparency into the process.

State Rep. G.A. Hardaway, D-Memphis

State Rep. G.A. Hardaway, D-Memphis

Two Memphis lawmakers – State Sen. Brian Kelsey, R-Germantown, and state Rep. G.A. Hardaway, D-Memphis –  have said they are interested in having TBI conduct all such investigations to provide more independence and oversight. They have also said they would want such TBI’s investigations to be transparent to the public, suggesting they would support adjusting the law that currently makes all documents in TBI investigations exempt from the Tennessee Public Records Act.

The calls for more investigation into deadly force by police have been strongest in Memphis.

In August, the Commercial Appeal pored through files of closed investigations into 22 killings by Memphis Police officers since 2009. After internal investigations by the police department, all of the cases were ruled justifiable homicides and no charges were brought by the Shelby County District Attorney. (See: CA Investigation: MPD officers fatally shoot 24 in five years; all closed cases ruled justified). In July, Memphis Police asked the TBI to lead the inquiry into an officer shooting of 19-year-old Darrius Stewart during a traffic stop. Many in the community have called for transparency.

Exemption for TBI records:

Tennessee Code Annotated: 10-7-504 (a)(2)(A): All investigative records of the Tennessee bureau of investigation, the office of inspector general, all criminal investigative files of the department of agriculture and the department of environment and conservation, all criminal investigative files of the motor vehicle enforcement division of the department of safety relating to stolen vehicles or parts, and all files of the handgun carry permit and driver license issuance divisions of the department of safety relating to bogus handgun carry permits and bogus driver licenses issued to undercover law enforcement agents shall be treated as confidential and shall not be open to inspection by members of the public. The information contained in such records shall be disclosed to the public only in compliance with a subpoena or an order of a court of record; provided, however, that such investigative records of the Tennessee bureau of investigation shall be open to inspection by elected members of the general assembly if such inspection is directed by a duly adopted resolution of either house or of a standing or joint committee of either house. Records shall not be available to any member of the executive branch except to the governor and to those directly involved in the investigation in the specified agencies.

TBI already is called in by smaller cities and counties when a police or sheriff’s officer is involved in a deadly incident. TBI’s records in these cases are confidential.

As of Oct. 23, 15 people have been killed by police in Tennessee this year, according to a police shootings database by the Washington Post.

Read Chattanooga Times Free Press story: Bill would put TBI in charge of officer-involved fatal shooting cases

Read the Tennessean’s full story here: Nashville PD says no to TBI inquiries of police shootings

Excerpt from The Tennessean:

“This is not an investigative area that we want to give up,” Nashville police spokesman Don Aaron said. “We believe that here in Nashville we have the expertise, the resources and the commitment to the community to conduct these investigations fairly and informatively. The informative piece of this should not be lost on anyone.”

Aaron said local investigators can get to scenes quicker than TBI agents, have crucial knowledge of the community and extensive training. Rausch told the committee that in-house investigators have had special multidisciplinary training on practices used by the state investigators.

Police officials in Nashville and Knoxville also say that their policies include reviews by local prosecutors, optional grand jury reviews and, in Knoxville, a citizen review committee.

In a statement, TBI Director Mark Gwyn said TBI agents use the most up-to-date practices and have special training and equipment. He said for his agency to pick up investigations in more large cities, TBI would need more resources for staff.

“If current trends persist, for example, the additional work could stretch our existing, limited resources and leave us in the unenviable position of having to turn away some cases to work these types of investigations,” his statement reads.

The police chiefs say if they control investigations, they can get information to the public faster.

“These have the potential to be some of the most critical, upsetting matters that law enforcement does,” Aaron said. “It’s vital that you put as much information out there as quickly as you can.”

Nashville police adopted that mantra when officers killed a mentally ill man with a hatchet who attacked a family at an Antioch movie theater in August. The first-responding officer, Jonathan Frith, told about what happened at a news conference the next day.

Deborah Fisher, executive director of the Tennessee Coalition for Open Government, said how police release information varies across the state and noted no single agency tracks the outcome of investigations. She said agencies that investigate their own police shootings are allowed to release full files when an investigation ends. But the law applies differently to TBI.

“There’s wide variation among police departments in the state when it comes to transparency,” she said.

“I’m not saying TBI is the answer, because with TBI right now, everything is covered in the law as confidential.”

She said that legal protection for TBI shows the importance of getting the right details in the proposed bill, to include legislators making TBI’s records public. Sen. Brian Kelsey, R-Germantown, has said he would support opening the records.

TBI leaders said they would not oppose releasing the files if told to do so by the Tennessee General Assembly. And an agency spokesman said TBI officials can confirm they are investigating, but details of their work that would end up in a final file are not releasable to the public.

What do you think?