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VOL. 132 | NO. 134 | Friday, July 7, 2017

McCalla Keeps Police Surveillance Lawsuit

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Protests outside City Hall this past February are part of a federal lawsuit alleging illegal surveillance of some protesters by Memphis Police. The lawsuit continues by the American Civil Liberties Union but four protesters have been dropped as plaintiffs. (Daily News File/Andrew J. Breig)

A Memphis federal judge has dropped four citizens as plaintiffs in a lawsuit alleging the city violated a 1978 federal consent decree barring police from conducting surveillance of protesters, saying the citizens don’t have standing.

But U.S. District Judge Jon P. McCalla also refused in the June 30 ruling to dismiss the lawsuit and ruled that the American Civil Liberties Union of Tennessee Inc. can remain as the sole plaintiff.

The lawsuit was filed in March after the city made public a list of citizens barred from entering City Hall without a police escort at all times. The list included several dozen people who had been involved in local protests over the last year.

The names for the City Hall escort list appear to have come from an “authorization of agency” Memphis Mayor Jim Strickland signed in January that bans a list of individuals from trespassing at his home. Strickland, who took that action following a December “die-in” protest on his front lawn, left it up to police to add the names to the authorization, and police included those names on the City Hall escort list as well.

The city has since dropped those names from the City Hall list.

Police director Michael Rallings has denied the inclusion of the names on the City Hall list is politically motivated. But he has refused to say how police decided who to put on the list.

The lawsuit alleges the list was an outgrowth of police surveillance of those involved in recent protests in violation of the 1978 consent decree that specifically bars police from such activity.

The city argued those who weren’t plaintiffs in the 1970s-era court action resulting from the actions of the since-disbanded police “domestic intelligence” unit should be able to make a legal claim.

The city’s attorneys also questioned the standing of the ACLU-Tennessee since the West Tennessee Civil Liberties Union was the plaintiff in the 1978 action and named in the consent decree.

McCalla ruled that plaintiffs Elaine Blanchard, Keedran Franklin, Paul Garner and Bradley Watkins – who were among those on the City Hall list – do not have standing because they are “third-party beneficiaries” of the decree.

McCalla said the U.S. Sixth Circuit Court of Appeals has rejected that before with a ruling that said “even intended third-party beneficiaries of a consent decree lack standing to enforce its terms.”

But McCalla said ACLU-Tennessee is “a successor in interest” to the West Tennessee Civil Liberties Union and has a “legally protected interest” in the decree.

In the 18-page ruling, McCalla also concluded the 1978 consent decree should be analyzed “as if the consent decree is both a settlement agreement and a judicial act.”

He rejected the city’s claim that the 1978 decree was “effectuated” or settled long ago.

“The plain language of the decree, however, purports to bind the Memphis Police Department in its present and future capacities,” he wrote, specifically saying the decree binds not only the mayor and police brass of 1978 but “their successors in office.”

And he rejected the city’s claim that the decree has a time limit, saying he “does not find any language in the decree indicating a specific timeframe or expiration date.”

“Additionally, given the injunctive nature of the decree, the court finds that the specific terms as well as a injunctive nature weigh in favor of retaining jurisdiction over the decree,” he added. “The decree binds the city of Memphis, an entity that was likely expected to survive for more than 39 years; therefore, it appears that the Kendrick court contemplated that the injunction would be enforced beyond 2017.”

Kendrick refers to Chan Kendrick, an ACLU official who is a plaintiff in the 1978 consent decree.

In a footnote, McCalla specifically wrote that he was not deciding whether the decree should be enforced in perpetuity. “Rather, the court holds only that it need not terminate its supervision of the decree at this time,” he said.

A separate federal court lawsuit over police surveillance of protesters in the “Fight for $15” campaign was settled in June with police agreeing not to conduct surveillance on those protesters but not admitting it had done so in the past.

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