On the afternoon of February 8, 2018, more than two dozen law-enforcement officers crowded into a conference room in the Henry County Sheriff’s Office, on the outskirts of Atlanta. They were preparing to execute a no-knock warrant at 305 English Road, the home of a suspected drug dealer who had been under investigation for almost two years. The special agent leading the briefing told the team that 305 English Road was a small house with off-white siding and several broken-down cars out front, showed them an aerial photograph of the house, and gave them turn-by-turn directions to get there.
When the officers arrived at their destination, the house described in the warrant—305 English Road, run-down, off-white, with cars strewn across the yard—was right in front of them. But they walked past it to a different house, a tidy yellow one, 40 yards away. The house at 303 English Road looked nothing like the house described in the briefing and in the warrant. Yet, less than a minute after getting out of their cars, the officers set off flash grenades and used battering rams to smash open all three doors of the home.
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Inside, they found Onree Norris, a 78-year-old Black man who had lived there for more than 50 years, raising his three children while he worked at a nearby rock quarry. Norris was no drug dealer. He had never been in any trouble with the law; he’d never even received a traffic ticket.
Onree Norris was watching the evening news in an armchair in his bedroom when he heard a thunderous sound, as if a bomb had gone off in his house. He got up to see what the commotion was and found a crowd of men in military gear in his hallway. Norris was more than twice as old as the target of the search warrant, but the officers pointed assault rifles at him anyway and yelled at him to raise his hands and get on the ground. When Norris told the officers that his knees were in bad shape, an officer grabbed Norris, pushed him down, and twisted his arm behind his back. Norris’s chest hurt, and he had trouble breathing. He told the officers that he had a heart condition—he’d had bypass surgery and had a pacemaker put in—but they kept him on the ground for several minutes. Norris was eventually led outside in handcuffs. When the officers realized they had blasted their way into the wrong house, they turned their cameras off one by one.
Whatever one believes about the job of policing—whether it’s that well-intentioned officers often must make split-second decisions that are easy to criticize in hindsight, or that the profession is inherently corrupt—there is no doubt that police officers sometimes egregiously abuse their authority. The videos that have filled our screens in recent years—most recently the surveillance footage of officers in Memphis fatally beating Tyre Nichols—offer horrifying evidence of this reality.
People who have lost loved ones or have themselves been harmed by the police often say that they want the officers involved to be punished and an assurance that something similar won’t happen in the future. Yet justice for victims of police misconduct is extremely difficult to achieve.
What happened in Memphis last week—the swift firing and arrest of the five officers who beat Nichols, and the murder charges they face—is highly unusual, a result of immediate public attention to an inconceivably barbaric attack. Although officers can be criminally prosecuted and sent to prison, they seldom are: Police are charged in less than 2 percent of fatal shootings and convicted in less than a third of those cases. Police departments rarely discipline or fire their officers.
Typically, victims’ only recourse is a civil lawsuit seeking money or court-ordered reforms. In 1961, the Supreme Court ruled that people could sue officers who violated their constitutional rights under a federal statute enacted 90 years earlier, during the bloody years of Reconstruction. That statute, known then as the Ku Klux Klan Act and referred to as Section 1983 today, was meant to provide a remedy to Black people across the South who were being tortured and killed by white supremacists while local law enforcement either participated in the violence or stood idly by.
After that 1961 decision, the number of police-misconduct suits filed shot up. But so did concerns about the suits’ potentially ruinous effects. Settlements and judgments would bankrupt officers and cities; no one in their right mind would agree to become a police officer; the very fabric of our society would become unwound. These claims were exaggerated, if not simply false. But they have nevertheless been relied upon by courts, legislatures, and government officials over the past 60 years to justify the creation of multiple overlapping protections for officers and police departments that regularly deny justice to people whose rights have been violated.
The best-known of these protections is “qualified immunity.” When the Supreme Court created qualified immunity, in 1967, it was meant to shield officers from liability only if they were acting in “good faith” when they violated the Constitution. Yet the Court has repeatedly strengthened the doctrine. In 1982, the Court ruled that requiring officers to prove good faith was too much of a burden. Instead, they would be entitled to qualified immunity so long as they did not violate “clearly established law.” Over the years, what constitutes “clearly established law” has constricted. The Roberts Court, invoking the importance of qualified immunity to “society as a whole,” has emphasized that the law is “clearly established” only if a court has previously found nearly identical conduct to be unconstitutional. What began as a protection for officers acting in good faith has turned into a protection for officers with the good fortune to have violated the Constitution in a novel way.
It was qualified immunity that dashed Onree Norris’s hopes of getting justice. In 2018, Norris sued the officers who had raided his home, seeking money to compensate him for his physical and emotional injuries. But in 2020, a federal judge in the Northern District of Georgia granted the officers qualified immunity and dismissed the case; in 2021, a panel of three judges on the Eleventh Circuit Court of Appeals affirmed the ruling.
The three appeals judges recognized that officers who execute a search warrant on the wrong home violate the Fourth Amendment to the U.S. Constitution unless they have made “a reasonable effort to ascertain and identify the place intended to be searched.” In fact, the very same court of appeals that heard Norris’s case in 2021 had ruled five years earlier that it was unconstitutional for an officer who executed a warrant on the wrong house to detain its residents at gunpoint—almost exactly what had happened to Norris. But that earlier court decision was not enough to defeat qualified immunity in Norris’s case, because it was “unpublished”—meaning that it was available online but had not been selected to be printed in the books of decisions that are issued each year—and the Eleventh Circuit is of the view that such unpublished decisions cannot “clearly establish” the law.
Just as george floyd’s murder has come to represent all that is wrong with police violence and overreach, qualified immunity has come to represent all that is wrong with our system of police accountability. But, over the past 60 years, the Supreme Court has created multiple other barriers to holding police to account.
Take, for example, the standard that a plaintiff must meet to file a complaint. For decades, a complaint needed to include only a “short and plain” statement of the facts and why those facts entitled the plaintiff to relief. But in 2007, the Supreme Court did an about-face, requiring that plaintiffs include enough factual detail in their initial complaints to establish a “plausible” entitlement to relief.
This standard does not always pose a problem: Norris and his lawyer knew enough about what had happened during the raid of his home to write a detailed complaint. But sometimes a person whose rights have been violated doesn’t know the crucial details of their case.
Vicki Timpa searched for months for information about how her son, Tony, had died while handcuffed in Dallas police officers’ custody in August 2016. Department officials had body-camera videos that captured Tony’s last moments, but they refused to tell Timpa what had happened to her son or the names of the officers who were on the scene when he died. Timpa sued the city, but the case was dismissed because her complaint did not include enough factual detail about those last moments to establish a “plausible” claim.
When the Court set out the “plausibility” standard, it explained that, if filing a case were too easy, plaintiffs with “a largely groundless claim” could “take up the time” of defendants, and expensive discovery could “push cost-conscious defendants to settle even anemic cases.” But this rule puts people like Timpa in a bind: They are allowed discovery only if their complaints include evidence supporting their claims, but they can’t access that evidence without the tools of discovery.
(Timpa did eventually get the information she sought after she filed a public-records request and sued the city for not complying with it. Only with that information in hand could she defeat the motion to dismiss. But then her case was dismissed on qualified-immunity grounds because she could not point to a prior case with similar facts. That decision was overturned on appeal in December 2021, and Timpas’s case is set to go to trial in March, almost seven years after Tony was killed.)
The Supreme Court has also interpreted the Constitution in ways that deny relief to victims of police violence and overreach. The Fourth Amendment protects against “unreasonable searches and seizures.” But in a series of decisions beginning in the 1960s, the Court has interpreted the “reasonableness” standard in a manner so deferential to police that officers can stop, arrest, search, beat, shoot, or kill people who have done nothing wrong without violating their rights.
On a July night in 2016, David Collie was walking down the street in Fort Worth, Texas, headed to a friend’s house, when two officers jumped out of their patrol car and yelled for Collie to raise his hands. The officers were on the lookout for two Black men who had robbed someone at a gas station. Collie was at least 10 years older, six inches shorter, and 30 pounds lighter than the smaller of the two robbery suspects. But he, like the suspects, was Black and was not wearing a shirt on that warm summer evening. Collie raised his hands. Just seconds later, and while standing more than 30 feet away, one of the officers shot Collie in the back. The hollow-point bullet entered Collie’s lung and punctured his spine. He survived, but was left paralyzed from the waist down.
When Collie sued, his case was dismissed by a district-court judge in Texas, and the decision was affirmed on appeal. The Fifth Circuit Court of Appeals called the case “tragic,” and a prime example of “an individual’s being in the wrong place at the wrong time,” but concluded that the officer had not violated Collie’s Fourth Amendment rights, because he reasonably—though mistakenly—thought he had seen a gun in Collie’s raised hand.
The Supreme Court has undermined the power and potential of civil-rights lawsuits in other ways: It has limited, for example, plaintiffs’ ability to sue local governments for their officers’ conduct and to win court orders requiring that departments change their behavior. Any one of the barriers, in isolation, would limit the power of civil-rights suits. In combination, they have made the police all but untouchable.
Even when people are able to secure a settlement or verdict to compensate them for their losses, police officers and departments rarely suffer any consequences for their wrongdoing.
The Supreme Court has long assumed that officers personally pay settlements and judgments entered against them. That is one of the justifications for qualified immunity. But officers’ bank accounts are protected by a wholly separate set of state laws and local policies requiring or allowing most governments to indemnify their officers when they are sued (meaning that they must pay for the officers’ defense and any award against them). As a result, vanishingly few police officers pay a penny in these cases.
Police departments typically don’t feel the financial sting of settlements or judgments either. Instead, the money is taken from local-government funds. And when money is tight, it tends to get pulled from the crevices of budgets earmarked for the least powerful: the marginalized people whose objections will carry the least political weight—the same people disproportionately likely to be abused by police.
Officers and officials could still learn from lawsuits, even without paying for them. But most make little effort to do so when a lawsuit doesn’t inspire front-page news or meetings with an angry mayor. Instead, government attorneys defend the officers in court, any settlement or judgment is paid out of the government’s budget or by the government’s insurer, and the law-enforcement agency moves on. In many cases, it does not even track the names of the officers, the alleged claims, the evidence revealed, the eventual resolution, or the amount paid.
Fundamental questions remain about what we should empower the police to do, and how to restore trust between law enforcement and the communities it serves. But no matter how governments ultimately answer these questions, they will almost certainly continue to authorize people to protect public safety. And some of those people will almost certainly abuse that authority. We need to get our system of governmental accountability working better than it does, no matter what our system of public safety looks like.
The fact that so many barriers to justice exist means that there is something for officials at every level of government to do.
The Supreme Court should reconsider its standards for qualified immunity, pleading rules, the Fourth Amendment, and municipal liability. But this seems unlikely, because a majority of the justices have demonstrated a durable hostility to plaintiffs in civil-rights cases.
Congress could remove many of the obstacles the Supreme Court has devised. And at least some members of Congress have shown an appetite for doing so. A bill to end qualified immunity, among other reforms, was passed in the House soon after the murder of George Floyd. But following 15 months of negotiations in the Senate, the George Floyd Justice in Policing Act was abandoned. Republican Senator Tim Scott described the bill’s provision ending qualified immunity as a “poison pill” for Republican lawmakers.
In the face of intransigence at the federal level, states have stepped in. Since May 2020, lawmakers in more than half of the states have proposed bills that would effectively do away with qualified immunity; these bills would allow people to bypass Section 1983 claims altogether and, instead, bring state-law claims for constitutional violations where qualified immunity could not be raised as a defense. State legislatures have additionally proposed bills that would limit police officers’ power to use force—prohibiting choke holds and no-knock warrants.
A bill enacted by Colorado in June 2020 is, in many ways, the gold standard. It allows people to sue law-enforcement officers for violations of the state constitution and prohibits officers from raising qualified immunity as a defense. The law also requires local governments to indemnify their officers unless they have been convicted of a crime, but allows cities to make officers contribute up to $25,000 or 5 percent of a settlement or judgment if the city concludes that the officer acted in bad faith. And the law bans officers from using choke holds, creating a bright-line limit on police power. Similar bills have passed in New Mexico and New York City, and are on the legislative agenda in other states. But other police-reform bills have failed in California, Washington, Virginia, and elsewhere.
I’ve testified in legislative hearings for bills in several states, and each has been frustratingly familiar. The people speaking against the bills threaten that if police officers cannot raise qualified immunity as a defense, they will be bankrupted for reasonable mistakes, and frivolous lawsuits will flood the courts. These assertions are just not true. Nevertheless, they have led lawmakers to vote against legislation that would take tentative but important steps toward a better system. Their inaction has left us with a world in which Onree Norris could receive nothing more than a few repairs to his doors after officers busted into his home and forced him to the floor; a world in which the Dallas Police Department could hide information about Tony Timpa’s death and then argue that his mother’s complaint should be dismissed because she did not have that information; a world in which David Collie could be shot and paralyzed from the waist down by a police officer, and require medical care for those injuries for the remainder of his life, but receive nothing, because the officer mistakenly thought Collie had a gun.
We need to stop being scared of unfounded claims about the dangers of too much justice, and start worrying about the people who have their lives shattered by the police—and then again by the courts.
This essay was adapted from the forthcoming Shielded: How the Police Became Untouchable.
Black Children Were Jailed for a Crime That Doesn’t Exist. Almost Nothing Happened to the Adults in Charge.
Judge Donna Scott Davenport oversees a juvenile justice system in Rutherford County, Tennessee, with a staggering history of jailing children. She said kids must face consequences, which rarely seem to apply to her or the other adults in charge.
by Meribah Knight, Nashville Public Radio, and Ken Armstrong, ProPublica
Friday, April 15, 2016: Hobgood Elementary School, Murfreesboro, Tennessee
Three police officers were crowded into the assistant principal’s office at Hobgood Elementary School, and Tammy Garrett, the school’s principal, had no idea what to do. One officer, wearing a tactical vest, was telling her: Go get the kids. A second officer was telling her: Don’t go get the kids. The third officer wasn’t saying anything.
A few weeks before, a video had appeared on YouTube. It showed two small boys, 5 and 6 years old, throwing feeble punches at a larger boy as he walked away, while other kids tagged along, some yelling. The scuffle took place off school grounds, after a game of pickup basketball. One kid insulted another kid’s mother, is what started it all.
The police were at Hobgood because of that video. But they hadn’t come for the boys who threw punches. They were here for the children who looked on. The police in Murfreesboro, a fast-growing city about 30 miles southeast of Nashville, had secured juvenile petitions for 10 children in all who were accused of failing to stop the fight. Officers were now rounding up kids, even though the department couldn’t identify a single one in the video, which was posted with a filter that made faces fuzzy. What was clear were the voices, including that of one girl trying to break up the fight, saying: “Stop, Tay-Tay. Stop, Tay-Tay. Stop, Tay-Tay.” She was a fourth grader at Hobgood. Her initials were E.J.
The confusion at Hobgood — one officer saying this, another saying that — could be traced in part to absence. A police officer regularly assigned to Hobgood, who knew the students and staff, had bailed that morning after learning about the planned arrests. The thought of arresting these children caused him such stress that he feared he might cry in front of them. Or have a heart attack. He wanted nothing to do with it, so he complained of chest pains and went home, with no warning to his fill-in about what was in store.
Also absent was the police officer who had investigated the video and instigated these arrests, Chrystal Templeton. She had assured the principal she would be there. She had also told Garrett there would be no handcuffs, that police would be discreet. But Templeton was a no-show. Garrett even texted her — “How’s timing?” — but got no answer.
Instead of going to Hobgood, Templeton had spent the afternoon gathering the petitions, then heading to the Rutherford County Juvenile Detention Center, a two-tiered jail for children with dozens of surveillance cameras, 48 cells and 64 beds. There, she waited for the kids to be brought to her.
In Rutherford County, a juvenile court judge had been directing police on what she called “our process” for arresting children, and she appointed the jailer, who employed a “filter system” to determine which children to hold.
The judge was proud of what she had helped build, despite some alarming numbers buried in state reports.
Among cases referred to juvenile court, the statewide average for how often children were locked up was 5%.
In Rutherford County, it was 48%.
In the assistant principal’s office at Hobgood, the officer telling Garrett not to get the kids was Chris Williams. Williams, who is Black, had been a Murfreesboro cop for five years. “What in the world?” he thought, when he learned what these arrests were about. At Hobgood, two-thirds of the students were Black or Latino. Williams wondered if such arrests would be made at a school that was mostly white. He had a daughter who was 9. He pictured her being arrested. This is going to blow up, he thought; I’m going to end up in federal court over this. He considered quitting, but instead tried to get someone to intervene. Tucked in an office corner, he called a sergeant, a lieutenant and a major, but couldn’t find anyone to call it off.
The officer not saying anything was Albert Miles III. Growing up, Miles, who is Black, had friends who hated the police. But Miles’ dad was a cop. Miles wanted to prove that police could be trusted. That afternoon, Miles had been pulled out of roll call along with another officer; a sergeant told the two to go arrest some kids at Hobgood. The sergeant didn’t say why, but at Hobgood, Miles started picking up details. Miles, too, wondered if these arrests would happen at a school full of white students.
The third officer at Hobgood was Jeff Carroll. He’d been pulled out of roll call with Miles. Carroll, who is white, was a patrol officer and SWAT team member. In evaluations, supervisors praised him as a leader, “cool under pressure.” Carroll also had no idea what these arrests were about. But his sergeant had ordered them, and he followed orders. Carroll was the officer telling the principal: Go get the kids.
Garrett asked if she could call their parents first. Carroll told her no. Garrett told the police that one girl had diabetes and got treatment when she arrived home after school. Please, the principal said. Let me call her parent. On this, the police ultimately compromised, saying the girl could get a shot in the nurse’s office before being taken to the jail.
Of the two officers telling Garrett what to do — get the kids, don’t get the kids — Carroll seemed the more aggressive, the principal would say later. She agreed to get the kids.
Having these arrests take place at Hobgood was not something school officials wanted. They wanted kids to feel safe at school. Garrett grew up poor. Nine-tenths of her students were poor. Years before, Hobgood had struggled academically. Now it was a celebrated success. Garrett and her staff had worked to build trust with parents, with students. “I don’t give up on kids,” Garrett says. But she knew that trust is fragile, and trauma endures.
As Garrett gathered the girls from their classrooms, she believed the police would at least avoid a spectacle. School let out at 2:30. That was minutes away. Garrett’s understanding was that the police would keep the girls in the office until school was dismissed and everyone else was gone.
Garrett rounded up the sixth grader, a tall girl with braids who had visions of becoming a police officer; one of the fourth graders, the girl with diabetes; and the 8-year-old third grader. In the hallway, the principal tried to prepare them, saying the police were there regarding a video of a fight. Hearing this, the sixth grader told Garrett that the two other girls hadn’t even been there.
After returning to the office with the three girls, Garrett relayed to police what the sixth grader had told her.
Her words were barely out when Carroll made it clear he’d had enough, Garrett said later when interviewed as part of an internal police investigation.
Carroll pulled out handcuffs and put them “right in my face,” Garrett recalled.
“And he said, ‘We’re going now, we’re going now, there’s no more talk, and we’re going now.’
“And I said, ‘But, but, but.’”
Carroll yelled at her, Garrett said. She felt intimidated. Bullied. She worried that if she said any more, she might be arrested herself. “And so I backed off.”
By now the girls were crying and screaming and reaching for the principal, who was also crying, as was the assistant principal. “And it was, it was, it was awful,” Garrett later said.
Carroll handcuffed the sixth grader. Later, asked why, he said because policy allowed him to. After being handcuffed, the sixth grader fell to her knees.
Miles handcuffed the 8-year-old with pigtails. “Just acting out of habit,” he said later. Walking to a patrol car, Miles stopped and thought, “Wait a minute,” and removed the cuffs. “I guess my brain finally caught up with what was going on.”
While Carroll drove those two girls to the jail, the fourth grader with diabetes stayed behind to see the nurse. She was sisters with the sixth grader; her initials were C.C.
In all this back and forth, Principal Garrett realized something. The other fourth grader. She had forgotten about her. And now, school was out. The girl had boarded her bus, and was waiting to go home.
The other fourth grader was E.J. Although she’d said “stop,” she was on the police’s list to be picked up for encouraging the fight.
Go get her, the police told Garrett.
Garrett was still crying. She didn’t want to go out to the line of buses and let all those kids see her like that. But she went, feeling she had little choice.
A teacher beckoned E.J. off the bus. Then Garrett escorted her inside, to the awaiting police. E.J., scared and confused, begged for her mother — and threw up on the floor.
The two fourth graders still at Hobgood, E.J. and C.C., were best friends. Williams and Miles walked the girls outside, not handcuffing either. With some parents joining in, the officers formed a prayer circle around the two girls. Miles prayed out loud for the kids to be protected and for God to bring peace and understanding. Then he buckled the fourth graders into a patrol car and drove off. On the way to jail the girls cried, “snot and all,” E.J. would say later. Garrett, meanwhile, pulled out her personal cellphone and began calling parents, no longer willing to do as the police commanded.
For the officers, the confusion didn’t end at the school. It continued once the children began arriving at the jail.
When Carroll walked in with the first two girls, Templeton, the investigating officer, pointed to the 8-year-old and asked what she was doing there. The police had no petition for her, Templeton said. The 8-year-old’s mother soon arrived and took her child home.
Miles brought in the last two girls, the two fourth graders. Then, walking out to his patrol car, he ran into an angry parent, Miles would recall later. It was a father demanding answers. Miles dropped his head, shaking it. The father asked why this was happening. I don’t know, Miles answered. We are good people, the father said. I can only imagine what you’re feeling, Miles answered. He explained, briefly, the juvenile court process. This is wrong, the father told Miles, over and over. After the third time, Miles, fighting back tears, said he understood, as a parent himself, the father’s anger and pain.
Fuck you, the father said.
I understand, Miles answered.
Only later, when he returned to the police station, did Miles allow himself to cry.
When the parent asked why this was happening, Miles had been unable to say. But the answer traces to individual missteps and institutional breakdowns — all on a grand scale.
What happened on that Friday and in the days after, when police rounded up even more kids, would expose an ugly and unsettling culture in Rutherford County, one spanning decades. In the wake of these mass arrests, lawyers would see inside a secretive legal system that’s supposed to protect kids, but in this county did the opposite. Officials flouted the law by wrongfully arresting and jailing children. One of their worst practices was stopped following the events at Hobgood, but the conditions that allowed the lawlessness remain. The adults in charge failed. Yet they’re still in charge. Tennessee’s systems for protecting children failed. Yet they haven’t been fixed.
Chapter 2: “The Mother of the County”
Eleven children in all were arrested over the video, including the 8-year-old taken in by mistake. Media picked up the story. Parents and community leaders condemned the actions of police. “Unimaginable, unfathomable,” a Nashville pastor said. “Unconscionable,” “inexcusable,” “insane,” three state legislators said. But Rutherford County’s juvenile court judge focused instead on the state of youth, telling a local TV station: “We are in a crisis with our children in Rutherford County. … I’ve never seen it this bad.”
Rutherford County established the position of elected juvenile court judge in 2000, and ever since, Donna Scott Davenport has been the job’s only holder. She sometimes calls herself the “mother of the county.”
Davenport runs the juvenile justice system, appointing magistrates, setting rules and presiding over cases that include everything from children accused of breaking the law to parents accused of neglecting their children. While the county’s mayor, sheriff and commissioners have turned over, she has stayed on, becoming a looming figure for thousands of families. “She’s been the judge ever since I was a kid,” said one mother whose own kids have cycled through Davenport’s courtroom. One man, now in his late 20s, said that when he was a kid in trouble, he would pray for a magistrate instead of Davenport: “If she’s having a bad day, most definitely, you’re going to have a bad day.”
While juvenile court is mostly private, Davenport keeps a highly public profile. For the past 10 years she’s had a monthly radio segment on WGNS, a local station where she talks about her work.
She sees a breakdown in morals. Children lack respect: “It’s worse now than I’ve ever seen it,” she said in 2012. Parents don’t parent: “It’s just the worst I’ve ever seen,” she said in 2017. On WGNS, Davenport reminisces with the show’s host about a time when families ate dinner together and parents always knew where their children were and what friends they were with because kids called home from a landline, not some could-be-anywhere cellphone. Video games, the internet, social media — it’s all poison for children, the judge says.
Davenport describes her work as a calling. “I’m here on a mission. It’s not a job. It’s God’s mission,” she told a local newspaper. The children in her courtroom aren’t hers, but she calls them hers. “I’m seeing a lot of aggression in my 9- and 10-year-olds,” she says in one radio segment.
She encourages parents troubled by their children’s behavior to use over-the-counter kits to test them for drugs. “Don’t buy them at the Dollar Tree,” she says on the radio. “The best ones are your reputable drugstores.”
Scrutinizing the inner workings of Tennessee’s juvenile courts can be difficult. Court files are mostly off-limits; proceedings can be closed at a judge’s discretion. But on the radio, Davenport provides listeners a glimpse of the court’s work. “I’ve locked up one 7-year-old in 13 years, and that was a heartbreak,” she said in 2012. “But 8- and 9-year-olds, and older, are very common now.”
Davenport has lots of favorite sayings. “God don’t make no junk,” she says to kids, to instill self-worth. To instill fear, she will say, “I’m going to let you be young and dumb — one time.” There’s no jury in juvenile court, so Davenport decides the facts as well as the law. “And that is why I should get 12 times the pay,” she likes to joke.
Davenport enforces a strict dress code in her courtroom, requiring people to “show deference.” There will be no untucked shirts. No sundresses, spaghetti straps or spandex. No body piercings, no uncovered tattoos. Pants shall be pulled up, and if a child shows up without a belt, the judge keeps a bag of them, and if she runs out, “you’ll just have to make do with a piece of rope,” one newspaper profile said.
Davenport says children need consequences. “Being detained in our facility is not a picnic at all,” she says on the radio. “It’s not supposed to be. It’s a consequence for an action.”
Davenport’s tough talk — and the county’s high detention rate — go against a reform movement that started about the same time she went on the bench. Beginning in the late 1990s, the number of kids in lockup began to decline, both nationally and in Tennessee.
Davenport, now 69, grew up in Mt. Juliet, a Nashville suburb. She attended Middle Tennessee State University, in Murfreesboro, majoring in criminal justice.
On the radio, Davenport says she has been “blessed” with an extensive history in law enforcement: “I was trained well in 17 years by different law enforcement agencies.” As a juvenile court judge, she says, she can spot “subtle signs” of gang activity, “wearing something to the right or to the left, or a color here or a color there.”
Her description of her job history doesn’t always match employment records.
Davenport, in a sworn deposition, said her law enforcement career began in 1977 at MTSU, where, as a student, she worked full time as a university police officer for two to three years. But her MTSU personnel file shows her being a part-time dispatcher, then a full-time clerk-typist, then a full-time secretary.
In 1980, Davenport started as a dispatcher for the Murfreesboro Police Department. Then she took another job — not in law enforcement, but in the law department for Nashville, investigating financial claims that might include anything from car accidents to slip-and-falls.
At night, Davenport went to law school. She graduated in 1986. That same year, she told lawyers in a deposition, “I started with the feds.” She told radio listeners that for eight years she was “with the U.S. Justice Department, where I analyzed and tracked and helped identify serial killers.” But this job wasn’t with the Justice Department. Her employer, Regional Information Sharing Systems, received federal funding but isn’t a federal agency.
She then became a private investigator, handling “mostly divorces,” she told lawyers.
In a deposition, Davenport said she first took the bar exam about a year after finishing law school. She failed, then kept trying.
“How — how many times have you taken the bar?” an attorney asked her.
“I passed on the fifth time,” she said.
She was admitted to practice law in 1995, nine years after getting her law degree.
In 1998, she became a juvenile court referee, akin to a judge. One of the county’s judges appointed her. (Asked why, he recently said, “I really can’t go back and tell you.”)
The following year, Rutherford County violated federal law 191 times by keeping kids locked up too long, according to a story later published by The Tennessean. By law, children held for such minor acts as truancy were to appear before a judge within 24 hours and be released no more than a day after that. The newspaper interviewed Davenport, who estimated half those violations occurred because a kid had cursed her or someone else. For cursing, she said, she typically sentenced kids to two to 10 days in jail. “Was I in violation?” she said. “Heck, yes. But am I going to allow a child to cuss anyone out? Heck, no.”
In August 2000 — less than three months after the story was published — Rutherford County elected Davenport to the newly created job of juvenile court judge. Her opponent, a major in the sheriff’s department, was later charged with sex crimes against minors and, in a plea deal, got probation. Davenport has not had another opponent since.
With juveniles, police in Tennessee typically avoid cuffs and custody, particularly in less serious cases. They instead serve summonses instructing kids and their parents to show up in court.
But that wasn’t the routine in Rutherford County. When the Murfreesboro officers arrested the kids at Hobgood, they were following Davenport’s “process”: arrest, transport to the detention center for screening, then file charging papers. “IT IS SO ORDERED,” Davenport wrote in a 2003 memo about her instructions. Four years later she declared that even kids accused of minor violations like truancy must be taken into custody and transported to jail.
Davenport once told Murfreesboro’s Daily News Journal: “I know I’m harsh, I’m very harsh. I like to think I’m fair, but I’m tough.”
In 2016, the Tennessee Board of Judicial Conduct publicly reprimanded Davenport. In a family law matter, a father’s lawyers had asked to move his case to another county. By law, they were allowed to. But Davenport called “the father and/or his attorneys” a “sneaky snake,” the reprimand said. What’s more, she ordered that a transcript of her words be forwarded, possibly tipping the next judge to her animosity. The reprimand found that Davenport’s “intemperate conduct” threatened the right to a fair hearing.
In some other cases, appeals courts have taken Davenport to task through unusually blunt language.
In one, Davenport was overturned twice. Davenport, finding that a mother had neglected her daughter, granted custody to another couple. Two higher courts disagreed and ordered Davenport to reunify the mother and child. Instead, Davenport terminated the mother’s parental rights. The other couple then adopted the girl, after being “exhorted” by Davenport to move quickly, according to a state Court of Appeals opinion.
The adoption went through while a challenge to Davenport’s parental termination ruling was still pending. In the second go-round, a state appeals court judge made clear his displeasure, saying, during oral argument, “Our little system works pretty simply”: If a higher court tells a lower court to do something, the lower court does it. “That didn’t happen in this case,” he said. Two months later, the appeals court overruled Davenport for a second time. Saying it was “troubled by the proceedings to this point,” the court ordered Davenport to reunite the mother and child — “expeditiously.”
Davenport, through a spokesperson, declined our interview request, to which we attached 13 pages of questions. Previously, when asked about the county’s arrest practices, Davenport told lawyers that she “can’t tell law enforcement what to do.” She told a local newspaper that her court produces “a lot of success stories.” She told radio listeners, “I want the children that come in front of me to leave better than they came in.”
Chapter 3: “Yeah, That’s the Charge”
Friday, April 15, 2016: Judicial Commissioners’ office, Murfreesboro, Tennessee
On the same Friday afternoon as three police officers jammed into the assistant principal’s office at Hobgood Elementary School, three other people huddled in another office a few miles away, to discuss what charge these kids could face.
Chrystal Templeton, the police officer investigating the video, wanted to arrest every kid who watched the fight and “get them all in front” of Davenport, she would say later during an internal police investigation. Charging them was helping them, Templeton believed, because “juvenile court is about rehabilitation.”
Templeton thought an appropriate charge might be conspiracy to commit assault. But then she met with Amy Anderson and Sherry Hamlett, two judicial commissioners authorized by Rutherford County to issue arrest warrants. Anderson told Templeton that she thought the only child who could be charged with conspiring was the kid who recorded video of the fight on a cellphone.
So they went in search of another charge, with Hamlett checking the state’s criminal code on a computer.
Templeton had joined the Murfreesboro Police Department in 1998, when she was 21. By the time of the arrests at Hobgood, she had been disciplined at least 37 times, including nine suspensions. She once left a loaded pistol on the seat of a patrol car, according to her personnel file. During a pursuit, she failed to turn on her dash cam. Another time she lost control of her patrol car and hit a Ford Explorer, which, in turn, hit a Nissan Pathfinder while Templeton’s patrol unit, spinning, smacked a Toyota Sequoia. In all, four cars were damaged and seven people injured, including Templeton.
In the lead-up to the Hobgood arrests, Garrett, the school’s principal, had heard grumbling about Templeton. Templeton was a school resource officer — not at Hobgood, but at two other schools in Murfreesboro. Both schools’ principals complained that Templeton was often absent. Meanwhile, one of Hobgood’s resource officers warned Garrett that Templeton’s handling of the case was going to cause a “shitstorm.” But that officer didn’t share her concerns with police higher-ups. She believed Templeton’s sergeant always made excuses for her, so what was the point?
Templeton had begun investigating on Wednesday, two days earlier. To try and identify all the kids, she asked around at schools and in the neighborhood where the fight took place. One parent she approached for help was E.J.’s mom. Templeton assured her no one was in trouble, that she just wanted to give the kids a talking-to, E.J.’s mom would say later. E.J., who was with her mom during this meeting, said she had been there. It was her on the video saying, “Stop, Tay-Tay.” On a piece of paper, on the hood of Templeton’s patrol car, E.J. and another girl who was with them listed the onlookers. And that was Templeton’s investigation. “My case is the video and the list,” she would say later, even though she couldn’t match any bystander to any image in the video.
The victim, the boy being punched, told Templeton the kids were all friends now. Templeton told him she understood. She then asked the child, “Do you think that there needs to be some consequences for what happened?” she would later recall. “And he said yes.”
Templeton wanted guidance. She believed the boys throwing punches were too young to be charged with a crime. An assistant district attorney agreed. The assistant DA also told Templeton she didn’t believe there was any single charge appropriate for all the kids gathered around. But Templeton still wanted to charge them all.
Inside the judicial commissioners’ office, Hamlett discovered an alternative to conspiracy to commit assault.
Her search turned up a Tennessee statute defining “criminal responsibility for conduct of another.” It says, in part: A person is “criminally responsible” for an offense committed by another if “the person causes or aids an innocent or irresponsible person to engage in” the offense, or directs another to commit the offense, or “fails to make a reasonable effort to prevent commission of the offense.”
Hamlett shared her find with Templeton. They went through the statute line by line, with Anderson joining in.
“I looked at the charge to the best of my ability, from my experience was like, ‘Yeah, that’s, that’s the charge,’” Templeton would later say. (When she subsequently apprised a higher-up in the police department, the higher-up wasn’t so sure. But he didn’t warn her off. “No one ever said no,” Templeton said later, adding, “If somebody told me, ‘No, stop,’ I would have stopped.”)
In the United States, it is typically the prosecutor’s job to review a police investigation and decide what charges, if any, to file. But Tennessee allows counties to hire judicial commissioners to fill this role. From issuing warrants to setting bail to conducting probable cause hearings, Rutherford County’s judicial commissioners can take on tasks that traditionally fall to judges or prosecutors — without needing the legal training of either.
County judges recommend people for the job. County commissioners appoint them.
Rutherford County opens the job to anyone with a Tennessee driver’s license and a high school diploma, supplemented by some college-level course work or vocational training and some office work.
Anderson, a county employee since 1998, was disciplined shortly before this case. According to investigative records, she had passed a note to a sheriff’s clerk. The clerk tore it up, then left with Anderson. Someone fished the note’s scraps from the trash and taped them together. The note read: “Could I get a few? If not, that’s fine. It’s my hip.”
In an internal sheriff’s investigation, the clerk admitted giving Anderson two prescription painkillers. That was illegal, a lieutenant wrote. He informed a county judge, who said they “would handle the situation administratively.” Anderson received a letter of warning, according to her personnel file.
Hamlett started as a judicial commissioner in 2008, making $8.50 an hour. Her application listed a high school diploma, and no college. Her previous job was in a small-town post office where her responsibilities included “computer work and general office duties.”
When Hamlett came up with “criminal responsibility for conduct of another” as a possible charge, there was a problem. It’s not an actual charge. There is no such crime. It is rather a basis upon which someone can be accused of a crime. For example, a person who caused someone else to commit robbery would be charged with robbery, not “criminal responsibility.”
But in the judicial commissioners’ office that Friday afternoon, 10 petitions were issued, each charging a child with “criminal responsibility.” The petitions didn’t distinguish the kids’ actions; the documents were cookie-cutter, saying each child “encouraged and caused” two other juveniles to commit an assault.
Templeton signed each petition. Anderson also signed at least some of them. Templeton then left the judicial commissioners’ office, the 10 petitions in hand.
After the four arrests at Hobgood, other children named in the petitions were brought in by their parents or rounded up by police.
(Templeton, through her lawyer, declined to comment. Anderson and Hamlett did not respond to interview requests. A supervisor in the judicial commissioners’ office told us the two had no comment, and neither did he.)
On Saturday, the day after the scene at Hobgood, police went to the home of a sister and brother who were 12-year-old twins. In court records they would be identified as J.B.#1 and J.B.#2. Officers arrested and handcuffed both children, even as the girl cried and begged to stay with her mother, and the mother pleaded with police not to use handcuffs. The mother recently said, “It hurt me to my heart … for them to take my kids.” Two of her other children watched the arrests, as did three of her nieces. Afterward, her other children had nightmares of being arrested, she said.
The officers put the twins in a patrol car and took them to the juvenile detention center to be processed.
Chapter 4: “We Will Hold the Juvenile”
When police took the 12-year-old twins to the Rutherford County Juvenile Detention Center on Saturday, April 16, 2016, the odds that either would be jailed were long, at least under Tennessee law.
Recognizing the harm that can come from incarcerating kids, Tennessee lawmakers have placed narrow limits on when a child accused of being delinquent can be held in a secure lockdown prior to receiving a court hearing. The child must fit one of six categories, precisely defined. They include being a jail escapee; being wanted elsewhere for a felony offense; or being accused, on substantial evidence, of a crime resulting in serious injury or death.
These two 12-year-olds were charged on negligible evidence with a crime that’s not an actual crime for something in which no one was seriously hurt.
Rutherford County, however, had its own system for deciding whether to keep a child under lock and key. Its written procedure, imprecise and broad, boiled down to whether a child was considered by jailers to be a “TRUE threat.” Jailers allowed the 12-year-old girl to go home. But they locked up her twin brother. Of the 10 children charged in this case, all Black, four were girls and six were boys. Every girl was released. Of the boys, four were jailed, according to court records.
Those four boys became a small part of a big group. In the fiscal year that encompassed April 2016, Rutherford County jailed 986 children for a total of 7,932 days.
J.B.#2, the 12-year-old boy, spent two nights in the detention center, court records show. While there, he was placed in solitary confinement as punishment for standing at his cell’s window, a lawsuit would later allege. We recently interviewed J.B.#2, whose name is Jacorious Brinkley. (He’s 18 now and is OK with us using his name.) A guard, Jacorious said, kept walking past his cell, “saying, like, ‘You can’t, you can’t be by the door. You got to sit down.’”
The person who runs the detention center is Lynn Duke. Davenport initially picked someone else, but her first appointee was arrested on a drug charge only hours after receiving the congratulations of county commissioners. Davenport quickly named Duke as replacement. Duke, a former youth services officer, became director on Jan. 1, 2001, and has remained in that role ever since.
Duke reports to Davenport, but does not consult her daily. In 2005, Duke emailed the judge to say she was feeling guilty for not checking in more. “If you need me to do anything … PLEASE TELL ME!” Duke wrote, to which Davenport replied: “GIRL, if I had any concerns or problems you would hear from me. YOU DO A GREAT JOB!!!!!”
When Duke first became director, the county detained kids in a deteriorated 19th-century jail separate from the court building. A local newspaper editorial bemoaned the sight this produced in the public square: kids, shackled together, in orange jumpsuits, “shuffling along the sidewalk and into the Judicial Building.” “Not that we’re afraid to see juveniles cuffed and heading toward justice, but it is a disturbing thing that could be avoided if juvenile court could be held at the detention center,” the editorial said.
In 2003, Rutherford County hired a consulting firm to help design a new detention center. The next year the firm produced a lengthy report, alerting Rutherford County that it was locking up kids at an exceptionally high rate. Jailing children should be “the last of a number of options,” the firm wrote. Less restrictive alternatives not only save money, they’re “more effective in reducing recidivism,” making them better for children and the community.
Scale down, the report recommended. Build a 35-bed juvenile detention center, with room to add on later. Also, build shelter care: 10 beds, in a residential setting, for runaways or other kids who pose no real threat to public safety.
In 2005, Rutherford County dropped the consulting firm and rejected its advice. The county opted for a 64-bed detention center, with no shelter care.
The center, attached to new courtrooms for Davenport and her magistrate, opened in 2008. The complex’s cost, coupled with that of a nearby correctional work center for adults, was $23.3 million.
Duke and Davenport have gushed about their new workplace. A “dream come true,” Davenport called it. They offer public tours. “You’ll see booking … bring your family … [have] a little piece of cake,” Davenport told radio listeners in a 2015 segment. They also lauded the jail staff. “We are a well-oiled machine, so there is not much to report,” Duke told county commissioners.
On occasion, news reports have revealed embarrassing staff breakdowns. Duke fired one officer who pepper-sprayed a kid in his cell, after which the kid chased the officer down and beat him up. (The officer, in a statement, said he was confident he followed procedure.)
In another case Duke promoted a corporal to sergeant despite a troubling disciplinary record; Duke then fired the sergeant after she entered a cell, removed her belt and struck a child with it, according to an internal investigation’s findings. The sergeant denied hitting the child, saying she had just removed her belt and made a popping sound with it. (When we pulled this officer’s personnel file, we discovered she had originally been recommended for hire by Davenport, who wrote a letter lauding her “professional demeanor” and “enthusiasm for the world of juvenile law.”)
When the new center opened in 2008, Duke incorporated a “filter system” into the jail’s written manual. When police arrest a child, they bring the child to jail. There, under the system, staff decide whether to hold the child before a detention hearing, which could take place days later. Say a child is hauled in for something minor, like skipping school. Under the filter system, the child would be locked up if deemed “unruly.” But the filter system defines “unruly” simply as “a TRUE threat,” while “TRUE threat” is not defined at all.
So any child, no matter the charge, who is considered a “TRUE threat,” however that’s interpreted, can end up being locked up.
Plus, the police can weigh in. In a 2013 email, Duke encouraged sheriff’s officers to let her staff know if they wanted a child detained. “If they say I really want this kid held, 9 times out of 10 we can make it happen,” she wrote. She went further in a memo to school resource officers, writing, “Even if we would normally release a juvenile … any time a local law enforcement officer requests a juvenile be detained and agrees to come to court to testify we will hold the juvenile.”
Detention center staff could be quizzed on the filter system when up for promotion, or disciplined for not applying it as written, according to personnel records. The staff member who made her way up to sergeant before being fired said in a deposition, “We were told when in doubt, hold them ’cause it’s better to hold a kid … that should have been released than release a child that should have been held.”
In 2016, Jacorious Brinkley joined in a lawsuit asking for the filter system to be stopped. When Duke was deposed in 2017, she called the system a guideline. Asked when it applied and what it dictated, Duke repeatedly said, “Depends on the situation.”
“Is it your policy or not?” a lawyer asked Duke.
“No. Yes. It — it’s a policy to use it when necessary,” Duke said.
Duke declined our request for an interview, writing in an email, “I appreciate your interest in Rutherford County and its youth, but decline to participate at this time.” Elsewhere she has consistently expressed pride in her operation, saying Rutherford County has the “best juvenile detention center in the state of Tennessee.”
Rutherford County doesn’t just jail its own kids. It also contracts with other counties to detain their children, charging $175 a day. “If we have empty beds, we will fill them with a paying customer,” Duke said at one public meeting.
Duke reports monthly to the county commission’s Public Safety Committee. At these meetings — we watched more than 100, going back 12 years — commissioners have asked regularly about the number of beds filled. “Just like a hotel,” one commissioner said of the jail. “With breakfast provided, and it’s not a continental,” added a second. At another meeting a commissioner said it would be “cool” if, instead of being a cost center, the jail could be a “profit center.”
When, at one meeting, Duke said “we get a lot of business” from a particular county, a commissioner chuckled at Duke’s word choice. “Business,” he said. This brought awkward laughter from other commissioners, leading the committee chair to say: “Hey, it’s a business. Generating revenue.”
Chapter 5: “They’re Not Coming Out Better Than They Went In”
Friday, April 15, 2016: Rutherford County Juvenile Detention Center
She had tried to stop the scuffle. The evidence was right there, in the video. Stop, Tay-Tay. Stop, Tay-Tay. Then, asked by police for help, she had helped. The police had responded by arresting her, as she vomited and cried, saying that she had “encouraged and caused” the fight.
When E.J. was taken to the detention center, she was processed along with C.C., her best friend. Jail staff recorded E.J.’s name and birthdate (she was 10 years old), conducted a 16-point search and confiscated her jewelry, all her small rings. Then they placed the two fourth graders in a holding area.
The air, the bench, everything was cold, E.J. remembers. She heard buzzing, and doors opening and shutting.
E.J. and C.C. sat and cried — E.J., who had tried to stop the fight, and C.C., who, as her sister had told Principal Garrett, was not even there. She had been at a pizza party, celebrating her basketball team’s championship.
E.J. remembers C.C. saying something to her sister, in a nearby holding cell, and she remembers the jail staff’s reaction. The grownups in charge told the children: Be quiet. “It was like a demanding,” E.J. recalls.
E.J. was released the day of her arrest. Come Monday, she was afraid to go back to school, worried the police might pick her up again.
After the outcry over these arrests, the charge against E.J. was dismissed, as were the charges against all the other kids. But E.J.’s mom could see signs of lasting trauma. E.J. had bad dreams about the arrest. She didn’t trust the police. For two or three months, E.J. received counseling.
In July 2016, 10-year-old E.J., through her mother, sued Officer Templeton in federal court. Her lawsuit was later expanded into a class action against Rutherford County.
Her lawyers wanted to know: How many kids were there who, like E.J., had been improperly arrested? How many kids had, like Jacorious Brinkley, been improperly jailed? The lawyers gathered large samples of arrest and detention records from an 11-year period, ending in December 2017. Then they extrapolated.
They would eventually estimate that kids had been wrongly arrested 500 times. And that was just for kids arrested by the sheriff’s office. This estimate didn’t account for other law enforcement agencies in the county that followed Davenport’s “process.” As for how many times the juvenile detention center had improperly locked up kids through its “filter system,” the lawyers estimated that number at 1,500.
Based on their access to the usually confidential records, the lawyers created a spreadsheet showing that more than 50 kids, identified by their initials, had been jailed for offenses that wouldn’t be crimes if they were adults. While most were 14 or older, exceptions abounded. C.V., D.L. and J.S., all age 13, were locked up for being “unruly”; J.B., age 12, for “truancy”; and A.W., age 11, for “runaway.”
The lawyers obtained the jail’s intake procedures, detailing how kids are required to shower while watched by a staff member of the same sex. “Constant visual shall be maintained,” the procedures say. All braids shall be removed, and every scar, mark and tattoo, unless “located in a private area,” photographed.
The lawyers cited research on how arresting and detaining kids hurts not only the children, but society. Kids who have been arrested and jailed are more likely to commit crimes in the future. They’re more likely to struggle in school, and to struggle with drugs and alcohol. “Detention makes mentally ill youth worse,” the lawyers wrote. Detention makes kids more likely to hurt themselves.
In the class-action lawsuit, one of the lead plaintiffs is Dylan Geerts. While E.J. alleged wrongful arrest, Dylan alleged he was illegally jailed.
When Dylan was 14, his uncle killed himself. The two had been close. Afterward, Dylan started talking of taking his own life. His dad took him to a hospital, where Dylan stayed for a week. Doctors diagnosed him as being bipolar and prescribed lithium.
Two months after Dylan turned 15, he spent a weekend night with a friend. “Me and him were like fuel to each other’s fire,” Dylan says. They went looking for unlocked cars, for things to steal. About 3:30 a.m. on Sunday, Sept. 15, 2013, a police officer spotted them. They ran, but he caught them. They had lifted a radio, a hat, a phone case and cologne. Dylan was charged with six crimes. The crimes weren’t violent. There were no weapons involved. Dylan had never been arrested before. But when police took him to the Rutherford County Juvenile Detention Center, the staff, using the filter system, locked him up.
At the detention center, he says, he didn’t get his lithium: “Not a dose.” He spent almost all his time alone in his cell. Going off medication affected “my moods, my suicidal thoughts and my manic depressive disorders,” he says. “Twenty or 21 hours a day are a lot of time to think and let your mind go wild, especially when you’re bipolar.” He felt jittery. “It’s like your stomach has dropped and your chest is real tight and you’re real nervous … it’s like having stage fright … all day, every day.” Classwork was superficial. He was in high school, but they had him doing simple multiplication: “11 times 11, 5 times 7 … I got an entire worksheet of that.”
Once, he used the intercom inside his cell to ask for toilet paper. “I was told I would be put on lockdown if I used the intercom system a second time.” Another time, outside his cell, he was told by a guard that he had a phone call from his father. “I stood up and then another guard jumped up and said, ‘You don’t stand unless you’re allowed permission to stand,’ and threatened to pepper-spray me.”
Three days after his arrest, he appeared before Judge Davenport. She seemed hostile, he says, the hearing perfunctory. Davenport released him, but placed him on house arrest. So for more than two months he was either at home or at school. “Or you’re following your dad like you’re on a leash.” He couldn’t see friends. He wasn’t even allowed to text them.
Dylan’s dad would say that to his mind, house arrest was “the worst thing you could ever do to a child, because he’s looking out a window.” Community service would have been better, something “to preoccupy his time, not un-occupy his time.”
After Dylan was released from detention, he found his lithium no longer worked. He started on a string of other medications. He fell behind in school. In the 16 months after, he tried three times to kill himself. To his dad, the change in Dylan was dramatic. Before detention, “He came to me and said, ‘I was having trouble with thoughts in my head.’ After detention it was acting on thoughts in his head.”
Dylan doesn’t like having his name attached to the class-action lawsuit. But “someone has to be representative,” he says. “If there’s no actual story to it, then no one cares.” We interviewed Dylan this year, in his new home outside Rutherford County. He said if he could, he’d tell Davenport, “They’re not coming out better than they went in.”
The lawyers representing E.J. and Dylan discovered that for children swept up in Rutherford County’s juvenile justice system, the harm could go beyond being arrested or jailed. Many children, once jailed, were placed in solitary confinement.
In April 2016, mere days after the Hobgood arrests, Duke’s staff received Davenport’s approval to isolate, indefinitely, a teen with developmental disabilities. Jailers confined Quinterrius Frazier, 15 years old, to his cell for 23 hours a day while denying him music, magazines or books, except for a Bible.
By that time, President Barack Obama had banned solitary confinement for kids in federal prison, citing the “devastating, lasting psychological consequences.” But Rutherford County allowed isolation in eight ascending levels, calling it “crucial” that kids “understand there are consequences for all behaviors.” Level 1 was for 12 hours. Level 8 was indefinite.
The lawyers for E.J. also represented Quinterrius, in what became a second class action. That federal lawsuit ended with Rutherford County being permanently banned from punishing kids with solitary. A federal judge called the practice inhumane. The county, in settling, did not admit any wrongdoing.
Quinterrius recounted his time in solitary in a court document. He wrote that with nothing to do and no bedsheets until nighttime, “I just do push up endtile I can’t anymore than sleep with my arm’s in my sleeves untile I can’t sleep anymore.” Although it was forbidden, he sometimes talked through vents or cracks to whoever was jailed above or beside him. The hardest part, he wrote, was when jailers would cover his cell’s window with a board. Then he couldn’t even see another kid’s face.
We interviewed Quinterrius this summer, with his mother. He’s 20 now, and is fine with us using his name. He told us that in solitary, he felt like an animal: “They open the flap, feed me and close it.” In his cell, he began talking to himself. And now, five years later, “I still talk to myself a little bit just because that’s what I did for so long.” When we talked with him, he tapped on his phone and pulled on his hair. His mother, Sharieka Frazier, said since his time in solitary, her son seems to need constant stimulation, from music, his phone, the television. “He’s probably struggling now,” she told us during the interview.
“Are you struggling?” she asked her son. “Are you OK?”
“OK, I’m just, I’m OK, mama,” he told her, dropping his head into his palm.
Chapter 6: “There Were No Concerns”
In the immediate aftermath of the arrests at Hobgood Elementary, the Murfreesboro police chief promised an internal investigation. By year’s end, the department had finished its report.
The officer who bailed before the arrests got a one-day suspension. So did the sergeant in charge of school resource officers. Three other supervisors also were disciplined: the sergeant, lieutenant and major who had not stepped in, even as Officer Williams called them from the assistant principal’s office, raising the alert. Each received a reprimand.
As for Templeton, who had initiated the arrests, the department made one finding: Her work had been “unsatisfactory.” She received a three-day suspension — her 10th suspension in 15 years — then kept working.
She retired in 2019 and, according to her LinkedIn profile, is now a life coach and member of Mary Kay, a multilevel marketing company that sells cosmetics.
Nashville police also participated in this investigation, to produce an external report with recommendations. Together, the two police departments delved into one of the case’s biggest missteps: the use of a charge that doesn’t exist.
The district attorney for Rutherford County confirmed to the police investigators that there’s no such crime as “criminal responsibility.” “You should never, ever see a charge that says defendant so-and-so is charged with criminal responsibility for the act of another. Period,” he said.
The investigators interviewed 13 police officers, four school officials, two prosecutors and a pastor. But two people refused to be interviewed: Amy Anderson and Sherry Hamlett, the two judicial commissioners.
They “failed to cooperate,” a Nashville sergeant wrote. “This is unfortunate. … Important information could have been obtained.” In his recommendations, the sergeant wrote that it’s “worth considering” whether police should give more weight to advice from prosecutors than judicial commissioners.
Hamlett was reappointed as a judicial commissioner in 2017, Anderson in 2019.
Their personnel files include no mention of this case.
All 11 children arrested over the fight captured on video sued in federal court. Defendants included the city of Murfreesboro, Rutherford County and various police officers.
At least six of the 11 children had been handcuffed. The four who were locked up spent twice as many days in jail, collectively, as Templeton did on suspension.
Starting in 2017, all 11 children received settlements, for a combined $397,500. For at least five children, some money was earmarked for counseling.
Rutherford County also faced the class action accusing it of illegally arresting and jailing children.
In January 2017, Davenport arrived at a law firm to be questioned by the lawyers for E.J. and so many other children.
Kyle Mothershead, a specialist in civil rights cases, deposed her. He knew about Davenport’s strict dress code — and he made sure to flout it. He wore blue jeans and a white button-down shirt, untucked. He later told us he was thinking, “I am going to fucking spit in her eye and come in all casual and take her off her little throne.”
Mothershead asked Davenport if she ever kept tabs on the number of kids detained.
“That’s not my job is to know statistics,” Davenport said.
Mothershead asked if she’d ever consulted with Duke about the filter system.
Not that she could recall, Davenport said, adding, “I don’t micromanage her.”
Mothershead asked about Davenport’s orders to law enforcement to take children to the detention center upon arrest.
“Because that’s our process,” Davenport said.
“OK. But I just want to make sure that we’re clear,” Mothershead said. “So — so that — that’s your process because you personally have ordered that process into existence?”
“From the orders, apparently so. Yes.”
In May 2017, a federal judge ordered the county to stop using its filter system, saying it “departs drastically” from ordinary standards. By being subjected to “illegal detention,” he wrote, “children in Rutherford County are suffering irreparable harm every day.”
This year, in June, Rutherford County settled the class action, agreeing to pay up to $11 million. Individual payouts figure to be around $1,000 for each claim of wrongful arrest and about $5,000 for each claim of unlawful detention. The county, as part of the settlement, “denies any wrongdoing in any of the lawsuits filed against it.”
With the end of the filter system, Rutherford County now jails fewer of its kids than before.
But that doesn’t mean its jail is ramping down. Quite the opposite. The jail keeps adding staff. Mark Downton, one of E.J.’s attorneys, says the county has “shifted gears.” Forced to stop jailing so many of its own children, Rutherford County ramped up its pitch to other places, to jail theirs.
The county has created a marketing video titled “What Can the Rutherford County Juvenile Detention Center Do For You?” Over saxophone music and b-roll of children in black-and-white striped uniforms, Davenport narrates. She touts the center’s size (43,094 square feet), employees (“great”), access to interstates (I-24, I-65, I-40) and number of cells, which she refers to as “single occupancy rooms.” “Let us be your partner for the safe custody and well-being of the detained youth of your community,” Davenport says.
Thirty-nine counties now contract with Rutherford, according to a report published this year. So does the U.S. Marshals Service.
How did Rutherford County get away with illegally jailing kids for so long?
The Tennessee Department of Children’s Services licenses juvenile detention centers. But its inspectors didn’t flag Rutherford County’s illegal filter system, which was right there, in black and white. We collected nine inspection reports from when Duke put the system in until a federal judge ordered it out. Not once did an inspector mention the jail’s process for deciding which kids to hold. “There was very little graffiti,” an inspector wrote in 2010. “Neat and clean,” the same inspector wrote in 2011, 2013 and 2014. Two inspection reports in 2016 said, “There were no concerns regarding the program or staff at the detention center.”
We requested an interview with the department’s longtime director of licensing, to ask how inspectors could miss this. The department refused to make him available.
The state’s failures don’t end there.
Tennessee’s Administrative Office of the Courts collects crucial data statewide. In 2004, the consultant hired by Rutherford County used that data to sound an alarm: Rutherford County was locking up kids at more than three times the state average.
But then, Rutherford County stopped reporting this data. From 2005 to 2009, the county had 11,797 cases of children being referred to juvenile court. How many were locked up? The county claimed to have no idea. “Unknown,” it reported, for 90% of the cases. The county’s data, now meaningless, couldn’t be used against it.
Later, when the county resumed reporting how many kids it detained, lawyers representing children sounded a second alarm. By 2014, the county was locking up children at nearly 10 times the state average. But then the state stopped publishing its annual statistical report, which had provided the statewide comparison points that allowed troubling outliers to be spotted.
In 2017, a state task force on juvenile justiceconcluded that Tennessee’s “data collection and information sharing is insufficient and inconsistent across the state.” This “impedes accountability,” it reported. The following year, a state review team reported that without good data, “the state cannot identify trends.” The team recommended creating a statewide case management system with real-time, comprehensive data. But that hasn’t happened.
We sent written questions to Tennessee’s Administrative Office of the Courts, asking why it stopped publishing the annual statistical report and about the data gaps. The office’s spokesperson didn’t answer.
While Rutherford County’s filter system was ultimately flagged (by lawyers, not through oversight), it is only one illegal system under one juvenile court judge. With Tennessee’s inadequate inspections and data, there could be trouble in any of the state’s other 97 juvenile courts, without any alarms being sounded.
In Rutherford County, Davenport still runs juvenile court, making $176,000 a year. (She’s up for reelection next year, and has previously said she’d like to run for another eight-year term.) Duke still runs the juvenile detention center, earning $98,000. And the system as a whole continues to grow.
In 2005, the budget for juvenile services, including court and detention center staff, was $962,444. By 2020 it had jumped to $3.69 million.
Earlier this year, Davenport went before the county commission’s public safety committee. “I come to you this year with a huge need,” she said. By now she had two full-time magistrates and another who worked part time. Davenport said she wanted an additional full-time magistrate. And another secretary. She wanted to increase her budget by 23%.
She also wanted to expand the system’s physical footprint. A small school in the same building was closing, so Davenport proposed converting classrooms into an intake room and a courtroom.
The commissioners gave Davenport’s budget request a favorable recommendation. Their vote was unanimous.
During the meeting, one commissioner, Michael Wrather, took a moment to express his admiration for the judge.
“I have said this for years and years,” Wrather told Davenport. “If we have a judge that has a box in the courtroom with belts in it, that requires young people to put a belt on and hold their pants up in a courtroom, I’m all for it.”
“Thank you, sir,” Davenport said.
We’re planning to continue reporting on the juvenile justice system in Rutherford County and elsewhere in Tennessee. If you have any stories that you’d like to share, please get in touch. Meribah Knight’s email address is firstname.lastname@example.org, and Ken Armstrong’s is email@example.com.
The purpose of policing––to jail and kill Black folks––remains the same regardless of the officers’ race.
“Allowing Black people into inherently racist systems does not make those systems better, safer, or more equitable.”
Policing in America is facing a PR crisis. Following the May 25th murder of George Floyd by Minneapolis police officer Derek Chauvin, the term “defund the police” has become a rallying cry for thousands across the country. Six months later, however, America has not defunded its police force––and in fact, has in some cases taken steps to give police departments even more money. Instead, police forces across America have taken an insidious approach: painting their departments in blackface.
After the January 6th Trump riot at the Capitol building, Yoganda Pittman, a Black woman, was named the new Chief of Capitol Police. Her appointment followed the resignation of former Chief Steven Sund and the arrest and firing of several white police officers who were found to be in attendance at the MAGA riot. Pittman’s appointment appeased many liberals who falsely believe that allowing Black folks to infiltrate or run law enforcement agencies will lead to higher levels of safety for Black Americans. The termination of several officers who took part in the riot has convinced many that we are one step closer to “reforming” the police by weeding out the racist, bad apples within the department.
“Pittman’s appointment appeased many liberals.”
This is a nice narrative, but a false one; in order to understand why, we must look at the history of policing in this country. Modern policing in America was originally created as a replacement for America’s slave patrol system wherein squadrons made up of white volunteers were empowered to use vigilante tactics to enforce laws related to slavery. These “enforcers” were in charge of locating and returning enslaved people who had escaped, crushing uprisings led by enslaved people, and punishing enslaved workers who were found or believed to have violated plantation rules. After slavery was legally abolished in 1865, America created its modern police force to do the exact thing under a different name: maintain the white supremacist hierarchy that is necessary under racial capitalism. The purpose of policing––to jail and kill Black folks––remains the same regardless of the officers’ race.
Liberal media has also contributed to the recent valorization of Black cops. In the days after the January 6th riot, many news outlets aggressively pushed a story about Eugene Goodman, a Black capitol police officer who led several rioters away from the Congress people’s hiding places while being chased by a white supremacist mob. Several news outlets published testimonials of Black police officers disclosing instances of racism within the department. A January 14th article in ProPublicanotes that over 250 Black cops have sued the department for racism since 2001: some Black cops have alleged that white officers used racial slurs or hung nooses in Black officer’s lockers, and one Black cop even claimed he heard a white officer say, “Obama monkey, go back to Africa.”
“Modern policing in America was originally created as a replacement for America’s slave patrol system.”
These white officers’ racism is unsurprising, and I am not denying any of these claims. But focusing on these singular, isolated moments of racism wherein white cops are painted as cruel and Black cops are the sympathetic victims grossly oversimplifies the narrative of structural racism that modern American policing was built upon. After hearing these slurs that they were allegedly so disgusted by, these Black cops still intentionally chose to put on their badge, don their guns, and work alongside these white police officers who insulted and demeaned them, laboring under a violent system with the sole purpose of harming and terrorizing Black and low-income communities. Similarly, while Goodman’s actions most likely saved many lives during the riot, we cannot allow one moment of decency to erase centuries of racist violence.
The great Zora Neale Hurston once said: “All my skinfolk ain’t kinfolk.” Her words ring ever true today, and these Black police officers are an excellent example of why. It’s tempting to believe that putting Black folks on the force will solve racial violence, but this is a liberal myth we must break free of. Allowing Black people into inherently racist systems does not make those systems better, safer, or more equitable: a quick look at many Black folks in power today, such as Barack Obama, Kamala Harris, Lori Lightfoot, and Keisha Lance Bottoms immediately prove this to be the case. Everyone supporting racial capitalism must be scrutinized and held accountable, regardless of their identity. We cannot on the one hand say that ‘all cops are bastards’ and then suddenly feel sympathy when those cops are not white. If we want to defund and abolish the police, we must resist the narrative that Black cops have anything to offer us.
Mary Retta is a writer, virgo, cartoon enthusiast — a queer Black writer for sites like Teen Vogue, The Nation, Bitch Media, and Vice.
Long before the internet caught wind of him, Henry Earl was already a local legend. By the time the Charleston Gazette dubbed him a “cult-status hero” and Newsweek called him the “town drunk,” Earl was already known around Lexington, Kentucky, as James Brown. He liked to dance, and he’d do a few moves in exchange for a couple bucks, money which he’d usually promptly spend on alcohol.
Earl was born in the Jim Crow South and adopted at age seven. Drinking was a habit he picked up as a teenager after his mother died, one he never could quite shake. By age 19 he was homeless, and by 20 he’d been arrested for the first time. That was back in 1970. Over the next several decades, Earl was arrested more than 1,500 times, almost always for alcohol intoxication. This is how he became known as the World’s Most Arrested Man. Over the years, he spent a total of more than 16 years in jail, usually in couple-day spurts. He was never once charged with violence or theft. “I like to drink,” he said once. “Alcoholic, that’s what I am. Every police knows me on the force. They see me drunk; they pick me up; I get five days.”
For almost 50 years, this was Earl’s life. No home, no family, just alcohol and jail. He was a regular at the local bar scene, known for sometimes overstaying his welcome. The locals would see him at house parties sometimes; he’d go for the free beer. He tried court-mandated rehab a few times, but it didn’t stick. “It’s a weekly, if not every-two-or-three-days thing,” said a police spokesperson in 2013. “He’s never doing bad or illegal things purposely…. He’s just so highly intoxicated that he’s posing a danger to himself.”
Interest in Earl peaked a few years back, with websites dedicated to his mug shots that amusedly tracked his arrests. Late-night TV cracked jokes at his expense. National outlets ran stories on him. Around town, people called him harmless and happy, a “lovable loser.” But there were times Earl saw it differently. “It’s a sad life, it ain’t worth a dog,” he said in 2003, tearing up. “I got more sense than some people think I do. I’ve seen what it’s doing. It is ruining my life.”
Over the past 10 years, the American public has been subjected to countless videos of civilians being killed, beaten, or tortured by law enforcement. Each new story is more documentation in the growing mountain of evidence, detailing how the state casually inflicts violence against its citizens. Henry Earl is not in any of those videos. He hasn’t been tortured on the street. He hasn’t been shot in the back. He has not been injected with a lethal dose of ketamine. But year after year he has been the victim of state violence—subject to arrest and the dangers of jail. But what Henry Earl shares with Walter Scott, George Floyd, and Elijah McClain is the problem of American policing—the consistent application of violent solutions to nonviolent, and often nonexistent, problems. The solution has been tried over a thousand times on Henry Earl, to no effect. Perhaps it’s time for something new.
Last year Attorney General William Barr addressed the Fraternal Order of Police’s biennial conference. “[W]hat stands between chaos and carnage on the one hand, and the civilized and tranquil society we all yearn for,” Barr told his audience “is the thin blue line of law enforcement.” Barr is a right-wing Republican who has for years advocated for a harsher and more robust police state. But his proclamation reflected a deeply held idea in American politics—that police are essential to an ordered and just country. Barr’s worldview is time-honored and bipartisan. Democratic presidential nominee Joe Biden might not be the same politician he was when he championed the 1994 crime bill, but his belief in the necessity of American policing—Biden proposes to pump $300 million in federal dollars to the police—has not changed. And it’s not just politicians who proselytize the necessity of policing. Boilerplate TV procedurals, true-crime podcasts, and the evening news sell us a world where the police, beleaguered and badgered, are ultimately all that stands between those of us who wish to live in society and the others who would choose savagery.
This is a myth. Despite much reporting of a spike in murder this year, the long-term trend still shows the murder rate hovering roughly in the same place it was in the 1960s, half of what it was in 1980. And while procedurals may paint a picture of cops chasing serial killers weekly, the actual face of police is more mundane. In June, the New York Times culled available data and estimated that police spend roughly 4 percent of their time addressing “violent crime.” Most of their time is spent dealing with noncriminal matters. And yet no matter the call—the loud party next door, the permit for a parade, the expired car tags, the escort for a funeral procession, the elderly welfare check, the frolickers barbecuing in the park, the schoolyard fight, the opioid overdose, the homeless person outside in the cold, the stray dog—the state’s answer is to respond with armed agents blessed with the near unimpeachable right to kill. The impact is not theoretical. After James Smith noticed the door of his neighbor’s home was open and the lights were on, Smith called the police, hoping an officer would conduct “a wellness check” on his neighbor. Instead, Officer Aaron Dean shot and killed Atatiana Jefferson in her own home as she played video games with her young nephew. Smith was left to draw a grim conclusion. “We don’t have a relationship with the police because we don’t trust the police,” Smith recently told the BBC.
Even the impact of policing on violent crime is debatable. “We are fighting an unrelenting, never-ending fight against criminal predators in our society,” Barr claimed at the FOP conference in New Orleans. But the “never-ending fight” in the very city in which Barr was speaking is not going well. New Orleans has the fourth highest murder rate in the nation but clears only 35 percent of homicide cases. In 2018, the city’s police cleared only 2 percent of all rapes. The country at large isn’t much better. Last year, the Washington Post launched an investigation into murder clearance rates in 50 cities over the course of 10 years. The results were bracing. “Despite a nationwide drop in violence to historic lows,” the Post reported, “34 of the 50 cities have a lower homicide arrest rate than a decade ago.” In St. Louis, during the period the Post studied, it calculated that 54 percent of all homicides resulted in no arrest. In Baltimore, during the period it studied, the Post calculated that only 35 percent of all homicides resulted in an arrest. In Chicago the rate was 26 percent. The “line” isn’t just thin and blue—it’s porous and arbitrary.
One argument for policing holds that while police may not solve much violent crime, their very presence helps ensure safety. In a survey of research, the National Institute of Justice concludes that “hot spot policing” was “associated with reductions in violent crime relative to control areas.” What is “hot spot policing”? According to the survey, it includes “order maintenance and drug enforcement crackdowns, increased gun searches and seizures and zero tolerance policing.” This isn’t just a list of policing tactics; it’s a list of prerequisites for the present moment. For “order maintenance,” Eric Garner was suffocated on a New York sidewalk. For “drug enforcement crackdowns,” Breonna Taylor was killed in her own home. For “gun search and seizure,” the Black neighborhoods of New York endured Stop and Frisk. For “zero tolerance policing,” George Floyd was choked on a Minneapolis street.
It would be at least honest if we said that enduring arbitrary harassing, beating, tasing, and strangulation by the state was the price of being “associated with reduction in violent crime relative to control areas.” That we don’t say this, and that we only imply it for certain classes of people, exposes the assumptions built into American policing. It’s those assumptions that, on the one hand, allow Henry Earl to be arrested more than a thousand times, and on the other offer a sporting chance for anyone who’d like to try their hand at murder or rape. Policing accomplishes this dubious feat by imposing costs on innocent people who happen to live in proximity to crime, and others who simply happen to resemble in skin color those we think of as criminal. This is a system begging for reform, and the best way to reform an institution as compromised as American policing is by abolishing it.
It is impossible to imagine American policing without the institution foundational to America itself—enslavement. Indeed, from colonial times up through the Civil War, the largest police force in the country wasn’t primarily found in the early towns or the bustling metropolises, but in the slave societies of the South, where to be a white man was to be deputized. Enslavement, where the enslaver is both the maker and enforcer of law, was the first experience of policing for Black people. But through the invention of slave patrols, militias charged with enforcing the law against the enslaved, the policing powers were expanded. “All white persons were permitted and in some regards required to exercise a police power over slaves,” the white supremacist historian U.B. Phillips noted. In many states, white people were not only allowed but required to whip, capture, and jail enslaved people they encountered. They had a mandate to “prevent all caballings amongst negros [sic], by dispersing of them when drumming or playing,” meaning they could punish any enslaved people for simply interacting with each other. The patrollers operated, as one of their number put it, “without warrant and at my own discretion.” The shadows of American policing are here—in the prisons, we find the absolute mastery once enjoyed by the planter class; in the wide discrepancy granted the slave patrol, one sees the echoes of broken windows policing; and the bodies of Trayvon Martin and Ahmaud Arbery reflect the extension of police powers far beyond official police.
Slave patrols were born of the propertied interests of white people seeking to maximally exploit Black labor, an endeavor that did not fade with emancipation. In many ways, it was reinforced. Planters may no longer have owned their labor force, but that didn’t stop them from seeking out means of preventing the formerly enslaved from freely selling their labor. Policing was key to this effort, which saw control lost through slavery regained through a panoply of laws that threatened arrest for everything from not having an annual work contract to “malicious mischief” and criminalized “persons who led idle or disorderly lives.” Depending on the state, the arresting officers could consist of urban police, militias drawn from former Confederate soldiers, or merely any white man. While there was a brief reprieve during Reconstruction, after federal troops departed the South in 1877, white Southerners employed policing to ensure a permanent and pliable source of labor. When Blacks tried to go north for jobs during the Great Migration, “the South resorted to coercion and interception worthy of the Soviet Union,” writes Isabel Wilkerson in The Warmth of Other Suns. “In Brookhaven, Mississippi, authorities stopped a train with 50 colored migrants on it and sidetracked it for three days. In Albany, Georgia, the police tore up tickets of colored passengers as they stood, waiting to board, dashing their hopes of escape. A minister in South Carolina, having seen his parishioners off, was arrested at the station on the charge of helping colored people get out.”
It is tempting to think the Northern police departments unsullied by white supremacy. The assumption would be wrong. Throughout the entirety of Jim Crow, Northern police often parroted their Southern counterparts. “From the moment the emigrants set foot in the North and West,” writes Wilkerson, “they were blamed for the troubles of the cities they fled to.” Indeed, police departments took the cue and regarded Blacks much as the broader society had—as outcasts and threats. In 1917, in East St. Louis, Illinois, white workers angered by Blacks brought in to replace them during a strike rioted and “fired shots into colored homes,” writes Wilkerson. “The police, charged with quelling the riot, in some cases joined in, as did some in the state militia.” In 1943, during the Detroit race riot, “Police openly sympathized with the white rioters,” writes historian Thomas J. Sugrue; “17 blacks were shot to death by the police, no whites were.” Ten years later, as Black families tried to integrate Chicago’s Trumbull Park Homes, they were granted minimal protection from the police who sympathized with the whites who terrorized the families. Still, the greatest indicator of the role law enforcement in the North played in suppressing their Black populations lay in the prison population. Even in an era of relatively low incarceration, the rate in the Northern cities stood at seven to one—exactly the same as today.
That the police were not concerned with neutrality nor “law enforcement” was always clear to Black people. In 1967, after a series of riots, President Lyndon Johnson convened the Kerner Commission to report on the riot’s origins and recommend a series of reforms. Read today, the report is bracing for a haunting quality—its timelessness. Just like the countless commissions that have followed it, the Kerner Commission found a police department with too many responsibilities, filling in for the defunding and decline of societal institutions. Just as today, the Kerner Commission found Black communities complaining of “stop and frisk” tactics. And then, as now, voices of authority blamed police violence on the inherent pathologies of the Black population instead of the learned brutality of the police. Among the commission’s recommendations: an intolerance for police brutality, “a clear and enforced policy…of law enforcement in ghetto areas as is the same as in other communities,” and eliminating a focus on smaller crimes such as “gambling or loitering” in favor of crimes that threaten “life and property.” After the report was published, it became a best seller, but Johnson quickly scuttled it, and the era of “law and order” commenced.
It is common to note, as the Kerner report does, that Black communities frequently complain of crime right alongside police brutality. This is not surprising. Black communities are on every level less safe than white communities. And yet it is curious the ease with which police, who never fail to note this safety gap, abandon these vulnerable neighborhoods. Calls for accountability are often met with indignance and threats to desert those most affected by crime. The practice of officers, at the slightest sign of public critique, calling in sick en masse and refusing to do their jobs has long been called “blue flu.”
At times, retaliation is even uglier. After becoming the New York City’s first Black mayor in 1990, David Dinkins angered the union by calling for police reform. The response was open defiance of the law. Police officers derided Dinkins as a “janitor” and a crack addict, drank openly, blocked traffic, and assaulted journalists. A photographer seeking the protection of a lieutenant after being assaulted by an officer was essentially told to flee. “I can’t protect you up here,” the lieutenant said. In 2011, after the NYPD was investigated for corruption, officers again rallied at the courthouse, blocking the cameras of journalists, mocking poor people by chanting “EBT” at people attempting to collect their benefits. In 2014, in the midst of a conflict with Mayor Bill de Blasio, the NYPD largely stopped policing, at the behest of the union.
This is all very strange behavior for a group which takes an oath “to serve and protect.” But policing is often revealed to be about something muddier. In June, the Times asked Chicago mayor Lori Lightfoot her opinion on the effort to “defund the police.” Lightfoot, a former prosecutor, didn’t even bother to defend her department—probably because a department with a history of torture, black sites, framing innocent people, and child killing is not easily defensible. Instead Lightfoot seemingly deflected to the lack of opportunity for Black and brown people in Chicago. Defunding “means you are eliminating one of the few tools that the city has to create middle class incomes for Black and brown folks.” That America’s second largest police department can only be defended as a kind of violent jobs program is a clear indictment of policing as an act of public safety. Furthermore, the fact that policing is one of the few tools available to bolster a racially diverse middle class is yet another indicator that police have far too much responsibility.
But America has never truly had a system of “public safety,” if only because Black “safety” has historically been imagined as being secured by more policing, whereas white “safety” is ensured by altogether different means. America does not flood the dorms of Harvard with cops because they are areas of “known drug activity.” It does not station armed officers in the cubicles of Wells Fargo. The white parents of Westchester do not generally have to subject their teenagers to The Talk. White safety, itself built on a foundation of enslavement and segregation, is ensured through familial wealth, home ownership, well-funded public schools, stable employment, and health care. Black safety is ensured by “zero tolerance policing” and “stop and frisk.” White safety is cancer prevention. Black safety is all-day chemotherapy.
Abolition seeks to eradicate this Jim Crow system of public safety—not merely a two-tiered system, but a system where one tier benefits by extracting from the other. To “reform” policing, to subject it to bias training of dubious import, to push for the return to an illusory past where Officer Friendly provided sanctuary, is to attempt to patch up the more nefarious features of a system that should be obsolete. Without the history of policies and practices that make up white supremacy, without enslavement and slave patrols, without black codes and miscegenation laws, without poll taxes and courthouse lynchings, without redlining and housing segregation, without mass incarceration, policing as we know it would not exist.
The outlines of the possible are already upon us. Defunding the police—divesting money from the back-end solution of policing and investing it on the front end—is a first step along the path. To meet the very real concerns about neighborhood violence, we could look to preventative programs like Cure Violence and Save Our Streets in cities like New York. These organizations view gun violence as a public health question rather than evidence of community moral rot. Both have been able to successfully reduce and prevent gun violence without inflicting more violence on communities they claim to protect.
Nowhere is the extra layer of unnecessary violence more reflected than in our insistence on sending men with guns to resolve mental health crises. In Eugene, Oregon, CAHOOTS, a crisis intervention program, was able to respond to 20 percent of the area’s 911 calls last year. Through the program, teams of medics and experienced mental health professionals are dispatched to handle certain emergencies instead of the police. For people suffering from mental health crises, addiction, and homelessness, introducing law enforcement in moments of desperation is an invitation for disaster. CAHOOTS reduces the risk of unnecessary violence and criminalization.
And removing police from our long and futile war against drug abuse is essential to abolition. This requires us to consider the role of harm reduction, rather than abstinence, as a possible avenue toward reducing the associated drug use. This solution is not theoretical. In countries such as Norway, Germany, and Canada, drug users can go to a safe injection site and use in regulated, medically supervised, and sanitary conditions. These facilities avoid relying on the stigma and shame that trails many of those suffering from addiction. And it works. When people have access to a safe environment for drug use, they are more likely to seek treatment on their own.
Abolition looks like justice for domestic violence and sexual assault survivors. According to RAINN, for every 1,000 sexual assaults, only about 230 are reported to law enforcement. Of those, less than five result in incarceration. In other words, 75 percent of sexual assaults go unreported and 99 percent go unpunished. Policing does not protect women from sexual assault, it facilitates it. Prison sexual violence, not only at the hands of other incarcerated people but also from correctional officers, is a persistent problem across the gender spectrum, including the thousands of juveniles housed in adult prisons. In place of our current system, abolition envisions providing domestic abuse survivors with crisis counselors and violence intervention teams trained to specifically navigate intimate relationships, available at a moment’s notice. What would a future look like for rape survivors if there were professionals or organizations that could provide not just physical safety but mental, emotional, and financial resources as well?
But more than an array of solutions to discrete, isolated issues, abolition envisions something more fundamental—entirely different values. A world where the resources put into not just policing but our robust system of prisons and jails is invested in the people to eventually render the present justice system obsolete. This is a world focused on the reduction of violence and harm. Certainly you would still need professionals responsible with holding accountable those who violate the social contract in the extreme—rape or murder—and an improved investigative system to catch the perpetrators. But even in that case, ensuring society’s protection should look very different. Even in the most extreme circumstances, it would demand an end to the conflation of public safety with public vengeance. Removing someone from society to stop them from enacting violence does not require subjecting someone to the current prison system, where solitary confinement, assault, sickness, torture, and rape are par for the course.
This is the world I imagine when I picture what I want for my children—a world where social consequences are weighted along with criminal consequences, where incapacitation is not conflated with torture, and murder and rape are taken so seriously that we do all we can to prevent either from happening in the first place. But ultimately abolition is not about a suite of options imposed by someone else—even me. The promise of abolition is the promise of democracy itself—one long denied Black people: the promise inherent in constructing an order of public safety originating in the needs and desires of a community, and not those who have, for so long, exploited them.
In the early morning hours of January 28, 2000, a Black police officer named Cornel Young Jr. —“Jai” to those who knew him—was off duty, dressed in plain clothes, and waiting on a steak sandwich from an all-night diner in a rough section of Providence, Rhode Island. A fight broke out at the front of the restaurant and quickly spilled outside. Someone brandished a gun. Young jumped into action, shouting “Police!” as he rushed through the diner and drew his weapon. Within seconds, he would be bleeding in the snow outside the restaurant, shot multiple times by two white, uniformed officers from his own department. Within hours, he would be dead.
Those are the basic facts, and the sadness of them transcends politics. If Black lives matter and blue lives matter, as they all most assuredly do, the killing of patrolman Cornel “Jai” Young was doubly tragic.
But the tragedy does not end there. As an attorney who has litigated civil rights cases, I can tell you that the tragedy of Jai Young’s story actually ends in a courtroom, some six years after his death, when the city of Providence slipped through a gaping chasm in federal civil rights law—one that has largely escaped scrutiny in the current national push for racial justice reform. It’s called the Monell Rule, and it’s why cities and police departments are rarely held accountable for the actions of police officers.
To learn more about her case, I recently reached out to Leisa Young, Jai’s mother, who fought the city of Providence in court for the better part of five years. She is an impressive woman: a bright, successful, former single mother who lifted herself out of poverty while raising an exceptional son. The pain of his death has hardened with time, the way scar tissue fills a wound that once might have been fatal. When she speaks of Jai now, Leisa’s voice does not crack, though she tends to change the subject.
The story she tells is awash in irony. Jai had entered the police force to change it, and he died, Leisa believes, because of the very problems he wanted to fix. Growing up, Jai had not been immune to the racial profiling so often experienced by young Black males. But his father—from whom Leisa had long since been divorced—was a police officer, and through him Jai developed an interest in community-based police reforms. By joining the force, Jai hoped to change what he saw as a militaristic approach to policing, especially in low-income neighborhoods like the one where he eventually died.
Leisa tells me that one of the cops who shot her son had been his classmate at the police academy and might have recognized him if he had only paused an instant before shooting: “Out of uniform, in that neighborhood, Jai was just another target.”
When asked about the city’s handling of her son’s case, Leisa responds with exasperation—the type of chronic emotional fatigue known only to those unfortunate souls who have spent years fighting a more powerful and highly motivated enemy. You can’t fight city hall, they say. Most people know the phrase; Leisa Young has lived it.
From the very beginning, the city circled the wagons. Just two days after Jai’s death, the mayor of Providence declared in the local press that race had not been a factor in the shooting. In a televised interview, a high-ranking officer predicted the two shooters would be exonerated by the department’s internal investigation, which was just barely underway. Meanwhile, Leisa says, city officials worked privately to convince her that Jai was somehow at fault in his own death because he had been pointing his firearm sideways, “like a thug.” Recalling the accusation now, Leisa dismisses it with a laugh that is somehow charming and bitter at the same time: “Where would he have learned that? In thug school?”
Leisa was convinced the shooting was wrongful. To vindicate her son, she filed suit against the city of Providence and in late 2003 she and the city each had their day in court. Over the course of three weeks, a federal jury heard evidence about the night of the shooting: how Jai had been holding his gun; whether he had identified himself as an officer on exiting the diner; whether he had been given any warning before the fatal shots were fired. In the end, the verdict was unanimous, and Leisa had essentially won: the jury found that Jai’s constitutional rights had been violated in the shooting that ended his life.
The 2003 verdict has never been overturned, and in the eyes of the law, the violation of Jai Young’s civil rights is an unassailable fact. That verdict almost certainly would have ended the case if Leisa had been suing a trucking company over a traffic accident, or a chemical company over a cancer-causing pesticide. But hers was a civil rights lawsuit against a city government, and though she still does not understand what it means or why, she would spend the next two years trying to overcome something called the Monell Rule.
I first learned about the Monell Rule in 2013, shortly after I accepted my first civil rights case. I had been practicing business law in Texas for 15 years when a friend asked for my help in a case involving threats and extortion by a small-time city government. It was not my area of the law, so I immersed myself in legal research, and it wasn’t long before I encountered this little-known legal rule that, despite its obscurity, plays a massive role in virtually every federal civil rights lawsuit against a city or county government. One case led to another, and I have been fighting the Monell Rule ever since.
To understand it, one must go back briefly to the end of the Civil War, when Congress passed the Civil Rights Act of 1871. The 13th, 14th and 15th Amendments had just been ratified, promising civil rights to emancipated slaves and other citizens. The 1871 law—also known as the Third Enforcement Act—was designed to provide a mechanism for enforcing these constitutional guarantees and it authorizes individual citizens to bring private lawsuits for civil rights violations committed by police and other persons cloaked in the authority of state or local governments. Today, among lawyers, this law is known simply as “Section 1983,” and it remains one of the most important civil rights statutes in the country.
In 1961, in a case called Monroe v. Pape, the U.S. Supreme Court ruled that city governments were exempt under Section 1983. The Monroe case involved horrific allegations of racial abuse at the hands of 13 Chicago police officers who had allegedly broken into a Black couple’s apartment and forced them to stand naked in front of their children as they beat the father with a flashlight, degraded him with racial slurs and ransacked the apartment. The Supreme Court ruled that the officers could be sued under Section 1983, but the city of Chicago could not.
Unsurprisingly, the Monroe decision was met with heavy criticism, and the Supreme Court eventually reversed itself—sort of. In Monell v. Department of Social Services of the City of New York, the high court ruled that cities are accountable under Section 1983, but only if the civil rights violation was caused by “official policy” of the city government. The court’s reasoning was based on a strained reading of the 1871 law, and has been often criticized ever since, but the rule established in Monell has nonetheless survived and evolved.
Today, “official policy” can be proven in multiple ways, but the gist is always the same: the civil rights violation must have been caused by a deliberate policy choice made at the highest levels of a city government, or by a pattern of institutional neglect so pervasive and consistent that it constitutes “deliberate indifference” by city policymakers. It is a very high bar, and clearing it often depends on facts and concepts that are inherently elusive.
The Monell Rule is unique to civil rights litigation and exists nowhere else in the legal world. If, for example, an Amazon delivery driver were to negligently cause a traffic accident while on the job, Amazon would ordinarily be liable for the victim’s injuries; there would be no need for the victim to prove that Jeff Bezos or Amazon’s board of directors had caused the accident through their corporate policies or their “deliberate indifference” to the rights of potential accident victims. In the civil rights context, however, that is essentially what the Monell Rule requires. In simplest terms, the Monell Rule is a barrier to government accountability. It puts legal distance between city governments and their employees, allowing cities to avoid responsibility for the on-the- job conduct of their own police officers.
As a practical matter, the Monell Rule blocks the only pathway by which civil rights victims can hold police departments accountable. Victims of police violence have three basic avenues to justice: criminal prosecution of the individual officers involved; a civil lawsuit against the same officers; or a civil lawsuit against the municipality that employs them. The first two avenues have their own unique challenges, such as the high burden of proof in criminal cases, or the qualified immunity standard that protects individual police officers from liability in civil suits. But the first two avenues—even where successful—punish only the individual officers. It is only the third avenue that has the potential to impact municipal police departments as a whole, and the Monell Rule blocks that avenue like a barricade.
Michael Tidwell’s blood sugar reading was at least 15 times his normal level when sheriff’s deputies took him to the hospital. But before they loaded the inmate into the back of a car, deputies propped up his slumping body and handed him a pen so he could sign a release from the Washington County Jail.“I could barely stand up or keep my eyes open,” he recalled.Tidwell said that he didn’t know what he was signing at the time, and that he lost consciousness a short time later. The consequences of his signature only became clear in the weeks that followed the 2013 medical emergency.By signing the document, which freed him on bond from the small jail in south Alabama, Tidwell had in essence agreed that the Washington County Sheriff’s Office would not be responsible for his medical costs, which included the two days he spent in a diabetic coma in intensive care at Springhill Medical Center in Mobile.It’s unclear whether Tidwell, who was uninsured at the time and in poor health afterward, was billed for his care or if the medical providers wrote it off. Neither Tidwell’s attorneys nor the hospital was able to say, and Tidwell was unable to get answers when he and a reporter called the hospital’s billing department.
Michael Tidwell at Springhill Medical Center in Mobile, Alabama. (Courtesy of Michelle Alford)
What is clear is that the sheriff’s office avoided paying Tidwell’s hospital bills.
Tidwell had been on the receiving end of a practice referred to by many in law enforcement as a “medical bond.” Sheriffs across Alabama are increasingly deploying the tactic to avoid having to pay when inmates face medical emergencies or require expensive procedures — even ones that are necessary only because an inmate received inadequate care while incarcerated.What’s more, once they recover, some inmates are quickly rearrested and booked back into the jail from which they were released.Local jails across the country have long been faulted for providing substandard medical care. In Alabama, for instance, a mentally ill man died from flesh-eating bacteria 15 days after being booked into the Mobile County Metro Jail in 2000. And in 2013, a 19-year-old man died of gangrene less than a month after he was booked into the Madison County Jail. In both cases, officials denied wrongdoing and surviving relatives settled lawsuits alleging that poor jail health care contributed to their loved ones’ deaths.But the use of medical bonds isn’t about inferior care. It’s about who pays for care.