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VOL. 133 | NO. 167 | Thursday, August 23, 2018

Testimony Ends in Federal Case Questioning Memphis Police Surveillance Tactics

Special to The Daily News

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After four days, the federal trial where the ACLU sued the city of Memphis over political surveillance of activists, ended Thursday, leaving the decision in the hands of U.S. District Judge Jon McCalla.

No timetable was set for McCalla to rule. Both sides have until Sept. 24 to submit briefs on legal arguments in the case. Attorneys representing Memphis plan to file a brief on Sept. 14 regarding whether the American Civil Liberties Union has legal standing to sue.

The ACLU will also submit its brief on the same date on the merits in the case.

Both sides were then given until Sept. 24 by the court to respond to each other on the legal arguments.

After all the briefs are submitted on Sept. 24, then McCalla could rule on the contention that the city violated a 1978 consent decree prohibiting political surveillance of citizens.

McCalla already issued a partial ruling on Aug. 10 that the city violated portions of the 40-year-old decree.

The trial was being held to hash out other issues including if the ACLU of Tennessee had legal standing to sue and what sanctions the judge will impose on the city.

The close of proceedings Thursday came after four days of testimony regarding fake social media accounts, the semantics of what involved surveillance under the old decree and whether new technology was covered by the previous order.

There were recollections of protests, a crowd closing the Hernando DeSoto Bridge and die-ins at Mayor Jim Strickland’s house leading to creation of an escort list for certain people visiting City Hall.

In Wednesday’s testimony, Memphis activist Paul Garner acknowledged he created a fake Twitter account in the name of Memphis Police Director Michael Rallings.

This news came when Garner of the Mid-South Peace and Justice Center took the stand on the third day of the trial where the ACLU accused the city of violating the consent decree prohibiting police from conducting political surveillance on citizens.

Garner took the stand late in the afternoon of Wednesday’s proceeding. When asked by Buck Wellford, an attorney for the city, if he created the fake social media account - @mpd_rallings -  Garner said it was satire.

He said he was “only poking fun” at the police director for terms like the “hot pee pee” comment the police director made in 2016 when discussing pot fines and people testing positive for drugs that hindered them from getting jobs.

Garner’s testimony marked the second time in the trial where a fake social media account emerged. Memphis police officer Tim Reynolds acknowledged earlier this week that he used a faux Facebook account under the name “Bob Smith” to monitor the activities of local protesters.

Earlier Wednesday, Rallings testified he didn’t find anything funny about the fake Twitter account. He was afraid people would think he made the inflammatory comments and it might cause the city to “erupt.”  The police director said he has asked for a criminal investigation.

Garner was one of two activists who testified Wednesday afternoon in the federal trial that began on Monday, Aug. 20.

After Garner, activist Keedran Franklin with the grassroots group Coalition of Concerned Citizens and one of the organizers of Fight for $15, took the stand.

Garner and Franklin, along with Elaine Blanchard and Bradley Watkins sued the city over political surveillance. They were later dropped from the complaint because the court ruled they did not have standing in the 1978 consent decree. That decision led to the ACLU-Tennessee becoming the plaintiff in the case.

Franklin told the court he was under constant surveillance by Memphis police for the last two years.

“I have videoed them (police) and called them out,” Franklin said about the surveillance. “I have even called Mike Rallings and said tell your people to stop following me, but they continue. I don’t expect it to stop even with the lawsuit.”

He said the police surveillance has affected him and his family.

“I have family that’s the police. And they afraid to claim me because they’re afraid they’ll lose their jobs,” he said.

Franklin then answered questions from the defense attorney Wellford about his protest activity, including his Facebook live video of a 2016 die-in at Memphis Mayor Jim Strickland’s house.

Franklin said he was not the leader of the die-in, but did participate and is committed to nonviolence.

The city’s attorney, Wellford, then showed video of Franklin outside of a beauty supply store in Frayser in 2017 confronting store employees about providing him with surveillance video after a police-involved shooting.

Franklin was the last witness to testify Wednesday.

Earlier in the day, Rallings continued his testimony that began Tuesday afternoon. He testified that the city monitored public safety at events whether it was at a Black Lives Matter event or a Ku Klux Klan rally.

 Other police officers also testified, including MPD Lt. Col. Eddie Bass.

Bass testified about police monitoring events including a free hot dog lunch for kids and a memorial at a church for slain local teen Darrius Stewart.  Bass said in an email that police were there because of concerns people might show up and turn it into a Black Lives Matter event. The ACLU said the events were not protests and the monitoring demonstrated the overreaching tactics by police.

After Bass completed his testimony, he asked the court if he could speak. He then launched into a spontaneous speech about how he would never violate the First Amendment rights of citizens.

“I hope this wouldn’t stain my reputation or the department’s reputation,” Bass said about the lawsuit.

In his 35-page order on Aug. 10, McCalla said the city engaged in political surveillance when it:

  • Added people to the “city hall escort list” who did not participate in the die-in at Strickland’s house
  • Circulated “joint intelligence briefings” about lawful events on private property to law enforcement and private businesses like FedEx and AutoZone.
  • Deployed plainclothes officers to photograph and identify participants at protests.

This is the second time the city has violated the consent decree. In 1979, a year after the decree was implemented, MPD’s domestic intelligence unit photographed protestors at a mid-term Democratic National Convention held in Memphis.

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