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VOL. 11 | NO. 32 | Saturday, August 11, 2018

McCalla Says City Violated Consent Decree on Political Surveillance of Protesters

By Bill Dries

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U.S. District Judge Jon P. McCalla ruled Friday, Aug. 10, that Memphis Police gathered political intelligence on protesters over the last two years in violation of a 1978 federal court consent decree. And if the plaintiffs in the 2017 lawsuit against the city can establish their standing in court next week, McCalla said he is prepared to declare the city in contempt of the consent decree and impose sanctions.

McCalla’s ruling is an order denying the city’s motion for summary judgment and granting one part of the motion by the plaintiff, the American Civil Liberties Union of Tennessee, for summary judgment while denying another part -- all on different points in a legal dispute with several legal standards for determining the contempt claims, the intent and therefore any sanctions.

The decision comes before the Aug. 20 start of a non-jury trial of a lawsuit filed by the American Civil Liberties Union of Tennessee against the city in 2017.

“The Consent Decree’s definition of “political intelligence” does not depend on whether the conduct being investigated was “lawful” in the sense of being allowed under the City’s ordinances and does not depend on whether the City’s investigative acts were taken “for the purpose of intimidation or harassment,” McCalla wrote. “Therefore, the City engaged in “political intelligence” as defined and prohibited by the Consent Decree.”

Beyond that, McCalla said there is a “genuine dispute” on several key points. 

- If the city infiltrated any groups, or disseminated any derogatory or false information about any individuals or groups for the purpose of "political intelligence."

- Whether the city engaged in any action "for the purpose of, or reasonably having the effect of, deterring any person from exercising First Amendment rights.

- Whether the city has substantially complied with the requirement not to disseminate personal information "collected in the course of a lawful investigation of criminal conduct" to persons outside law enforcement agencies."

McCalla said the proceedings in his courtroom next week will involve him ruling whether the ACLU has standing in the case and from there “the appropriate contempt sanction.”

The sanctions will depend on McCalla’s ruling on the areas of “genuine dispute.”

“A police officer’s use of an alias to develop online relationships with individuals and gain access to their private online groups may be perfectly appropriate as part of a criminal investigation, but it nevertheless ‘may result in the collection of information about the exercise of First Amendment rights, or interfere in any way with the exercise of such First Amendment rights,’” McCalla wrote, quoting from the 1978 consent decree. “Therefore, the Consent Decree requires such criminal investigations to be ‘immediately [brought] . . . to the attention of the Memphis Director of Police for review and authorization,’”

In his April deposition in the case, Memphis Police Director Michael Rallings testified that he did not recall giving any written authorizations for any criminal investigation.

“Accordingly, the record shows, by clear and convincing evidence, that the City did not review and issue written authorizations for at least some lawful investigations of criminal conduct that ‘may result in the collection of information about’ or ‘interfere in any way with’ the ‘exercise of First Amendment rights,’” McCalla wrote, again quoting from the consent decree.

Memphis Mayor Jim Strickland, attending a Saturday picnic and rally for Democratic candidates in Overton Park, drew a group of five protesters at his appearance there who booed him. One of the protesters carried a sign reading "What More Are You Hiding?"

The protesters drew the presence of seven police officers.

Strickland did not comment on the ruling or the issue citing the ongoing court case.

City chief legal officer Bruce McMullen, in a written statement Friday evening, said the court’s ruling is “an interpretation” of what constitutes political intelligence under the 40 year old consent decree.

McMullen termed the consent decree “woefully outdated and impractical to apply in modern law enforcement.”

"Reading the consent decree literally, and applying it in today’s technological world, would require the Police Department to turn off all security cameras and body-worn cameras during a protest. It would prevent police from looking at publicly posted content, and severely hamper their ability to provide public safety,” McMullen said. “We firmly believe the consent decree was drafted without any conscious thought of the technological advances that exist today, and that we have substantially complied with the consent decree in these modern times.”

McCalla, however, in his order said the city would have been free to seek to amend the consent decree at any point in the last 40 years to reflect such changes but did not.

The lawsuit was triggered by the additions of names of those active in recent protests to a security list at City Hall requiring those on the list to be escorted by police at all times while in City Hall. The lawsuit alleged the list was the result of political surveillance by police and also cited police taking pictures of protesters at events – some of them private gatherings. One police presentation included highlighting a book recommendation by a protester and including those listed as friends on his Facebook page.

In depositions, police brass refused to answer questions about a Facebook account under the name “Bob Smith”, citing a police investigation.

The city has contended it did not conduct political surveillance but that police were monitoring protesters for safety reasons including protecting those at such protests from others seeking to use peaceful protests for unlawful activities.

“Monitoring social media has allowed the Police Department to dispatch the appropriate amount of resources to protect protestors, counter protestors and the public at large,” McMullen said Friday evening.

McCalla said the city violated the consent decree by engaging in “political intelligence” when it:

- Created an authorization of agency or (AOA) for Memphis Mayor Jim Strickland’s house following a December 2016 “die-in” protests on his front lawn and added the AOA’s list of names to the City Hall Escort list. The AOA included individuals who did not participate in the 2016 Die-in at the mayor’s house but participated in other protests including those arrested in a pipeline protest outside the Valero refinery.

- “Moreover, the city included individuals in the AOA at least in part based on their associations with Keedran Franklin and/or the CCC (Coalition of Concerned Citizens) on social media,” McCalla wrote. “There is no indication in the record that the “purpose” of these individuals’ social media associations with Keedran Franklin and/or the CCC was unlawful.”

- Created and circulated Joint Intelligence Briefings -- or JIBs -- to individuals within and outside the MPD. The City’s JIBs included information about events on private property. For example, one JIB included information about a “Black Lives Matter Memphis Chapter meeting at Pilgrim Rest Baptist Church.” The JIBs also included information about events whose purpose appears to be undeniably lawful, the judge said.  For example, one JIB included information about an event called “Black Owned Food Truck Sunday.”

- Deployed plainclothes police officers to photograph and identify participants at protest events. Police brass testified that the MPD’s plainclothes officers “would take photographs of what was going on to give people an idea of the size of the crowd, what the crowd was doing” and also “identify participants that were there.”

“Therefore, the City gathered and disseminated information relating to persons’ associations protected by the First Amendment,” McCalla concluded in his order.

McCalla ruled that some of those on the City Hall list, which was later amended by the city to take their names off the list, did not have standing to be plaintiffs in the case because they were not part of the 1978 consent decree.

Their attorney sought to appeal the ruling but McCalla did not make it an order, meaning it cannot be appealed until or unless he does so.

That leaves the ACLU as the remaining plaintiff in the case.

The 1978 case involved the police domestic intelligence unit and its surveillance specifically of Vietnam War protesters in the city.

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