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VOL. 132 | NO. 45 | Friday, March 3, 2017

City Hall List Leads to Court Fight Over Police Surveillance

By Bill Dries

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Memphis Mayor Jim Strickland’s administration may have put to rest the basic matter of the City Hall escort list and who is on it.

Memphis Police Director Michael Rallings and City Chief Legal Officer Bruce McMullen deny “political surveillance” by police of protesters but contend the city should not have to disclose its tactics and measures as part of protecting public safety.

(Daily News/Bill Dries)

The list of people who require a police escort at City Hall was pared to 26 people Wednesday, March 1, from the 81 people on the list two weeks ago. What remains now is mostly a legal argument about whether Memphis Police were acting unlawfully by monitoring and following the activities of the protesters on the list before they were removed Wednesday.

Memphis Police Director Michael Rallings says the police department made a “mistake” in putting the names of 53 people on the City Hall list.

Meanwhile, a second lawsuit alleging the city was conducting illegal surveillance on protesters was filed in Memphis Federal Court. The new suit was filed by the Mid-South Organizing Committee, a group that’s pushing for a $15 minimum wage, and Antonio Cathey, one of its leaders. It alleges police did more than record and photograph protesters at demonstrations in public places.

The suit claims MPD used “intimidation tactics,” including inconsistently enforcing the requirement for a city permit for marches or protests that involve a certain number of people.

After an April protest, Cathey claims, police patrol cars followed the van he was in for about 15 minutes. He also alleges that at another protest the same day “MPD officers used iPads to make video recordings of the protesters despite the fact that the protesters were peaceful, were complying with all laws and ordinances.

“The video recording was done for no purpose other than to harass and intimidate the protesters and to discourage them from exercising their First Amendment rights.”

The lawsuit also alleges that following a February “teach-in” that was held at the Mid-South Organizing Committee’s office in Cooper-Young, four unmarked police cars were parked around the building and that Cathey and others were followed by police after the meeting.

“The police informed Plaintiff Cathey that they would stop following them by saying, ‘When y’all are done, we’ll be done,’” the lawsuit reads.

After making several stops with police following, Cathey twice asked police what they were doing. He says in the lawsuit that one police officer told him, “We’re just trying to make sure everyone stays safe.” At another stop, when he asked police if they were following orders, an officer said, “That’s none of your business,” according to the complaint.

City of Memphis chief legal officer Bruce McMullen and Rallings continued Wednesday to specifically deny “political surveillance.”

“The police department does not conduct political surveillance,” McMullen said. “Do police do police work and look out for individuals that might affect public safety? Yes.”

Rallings said the police department protects the right to protest and the First Amendment rights of free speech and expression.

“I have lost count of how many protests there have been. There have been very few incidents where we have done any of the things we are accused of,” he said.

He and McMullen also talked of a “fine line” between such surveillance and the presence of numerous cameras in public places and on police.

“The public demanded body-worn cameras, so we spent millions of dollars on deploying body-worn cameras,” Rallings said. “The public asked that we continue to deploy SkyCop video cameras, in-car video systems. So when you say surveil, that is used very loosely.

“This is not politically motivated. We are doing it to protect the rights of our protesters – from not only individuals that may show up with a nefarious purpose, but from shutting down a business, shutting down the bridge or doing anything else that disrupts individuals’ normal way of life.”

Meanwhile, the city sought to dismiss a similar lawsuit filed Feb. 22 by four other protesters. The lawsuit claims MPD violated a 1978 federal consent decree that bars it from recording and monitoring such protests and marches.

The city is seeking the dismissal because it argues the consent decree that is crucial to both recent complaints only applies to the plaintiffs who filed the lawsuit nearly 40 years ago.

“To the extent that the 1978 consent order remains applicable or enforceable today, these plaintiffs are not included in the group of individuals or entities which can seek to enforce it,” reads the memorandum of law by attorney Buck Wellford, representing the city in the matter.

“This is not a policy argument or position, and is not a close call under the law,” he added.

Wellford argues the Kendrick case, named for plaintiff Chan Kendrick, is a different set of circumstances.

“Kendrick involved allegations that the police department conducted a series of carefully planned surveillances of citizens for purely political motives for 10 years by an Intelligence Unit created for that very purpose,” reads the memorandum. “The defendants were alleged to have not only conspired to keep the information secret, but also to have deliberately destroyed documents, leading to the necessity of plaintiffs obtaining a restraining order.”

Bruce Kramer, who was an attorney in the 1978 lawsuit and among those who signed the consent decree, is expected to argue for his current clients that in the intervening years he has been in federal court several times to enforce provisions of the decree.

The city argues the 1978 order has been “effectuated” and was not intended to last in perpetuity.

Continuing the consent order, Wellford argues, “would simply inject the court, 39 years later, into an essentially political process involving publicly elected representatives carrying out their duties.”

Beyond the motion for dismissal, McMullen said Wednesday the city will argue in court that it does not have to disclose how police came up with the names of protesters that went on the City Hall escort list or the no-trespassing authorization for Strickland’s home. Strickland has said he went to police after a “die-in” protest on his front lawn in December and, based on their advice, signed an “authorization of agency,” as it is known, for his home.

It’s a list of people the homeowner or property owner authorizes police to arrest for trespassing.

Strickland also has said he did not come up with the 41 names on that authorization, leaving that to police. The authorization included more names on it than the dozen or so people who participated in the die-in. Strickland has said he doesn’t know how police came up with the names.

Another 14 people, many if not all of whom were involved in a January pipeline protest blocking the entrance to Valero refinery, were added to the City Hall list by police the day after the protest in which several people were arrested. Their names were among those removed Wednesday from the City Hall list or book.

“We do not have to disclose our police tactics or (intelligence) that came about with creating the security book and putting people in the security book,” McMullen said. “I think it applies to authorization of agency as well.”

“If you talk about police procedure and tactics that they do to ensure public safety, we are not going to release that intel information,” he added. “As you can imagine, it could be exploited to the detriment of public safety if we do that.”

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