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VOL. 133 | NO. 150 | Tuesday, July 31, 2018

Police Documents Show Protest Spreadsheet and Fear of 'Radicals'

By Bill Dries

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Memphis Police brass kept a spread sheet over the past two years on whether a protest received a city permit – was “lawful” or “unlawful” – while continuing to collect information on some of the protesters from public social media.

The city, through its attorneys, argues in a federal court lawsuit that social media monitoring is legal and does not violate a 40-year old federal court consent decree specifically forbidding the MPD from “political surveillance” of protesters.

“The City has not disrupted, interfered with, or harassed any person exercising First Amendment rights since the entry of the Consent Decree,” Buck Wellford, the attorney representing the city, wrote in a June motion for summary judgement in the lawsuit. “And in any instances where it is argued to have crossed that line, has not done so in such a manner when viewed from the relevant legal standard, to have objectively chilled the exercise of First Amendment rights.”

Court documents totaling 330 pages were unsealed and published on the city’s website last week.

The July 2016 Black Lives Matter protest that shut down the Hernando DeSoto Bridge for several hours prompted Memphis Police to keep a spreadsheet on protests across the city and from there police began to gather information on protest leaders, according to 330 pages of court documents released last month. (Daily News File/Bill Dries)

Those documents include parts of depositions from police brass including Memphis Police Director Michael Rallings. Another document notes the Facebook account of activist Paul Garner recommending a 1971 book on community organizing by Saul Alinsky.

“If you haven’t read anything by Saul Alinsky, I highly recommend it,” Garner posted. “You may not agree with all of his philosophy on pragmatism, but he understood power and how to use it against the establishment when you have to fight money and political influence with people.”

Police Sgt. Tim Reynolds, who put together the spread sheet of protests on the orders of Rallings, said Alinsky’s 1970s philosophy played a role in determining on whom police collected information.

“Small groups of radical individuals are hijacking legitimate public groups who want to make improvements,” Reynolds testified. “The smaller radical groups use those peaceful demonstrations as opportunities.”

He and other police brass cited protests in Overton Park over Memphis Zoo overflow parking and other local causes.

Garner, organizing director of the Mid-South Peace & Justice Center, was taken aback at the police files having a screen shot of his recommendation of a nearly 50-year old book. The records also reflected his list of Facebook friends.

“I think it’s just kind of weird that a book recommendation seems to be the crux of their recommendation for why I am on there,” he said. “There’s not really a lot of facts that justify their case for surveillance in the first place. It’s more editorialized fan fiction about this existential threat that really just isn’t there.”

The July 10, 2016 Interstate 40 bridge protest and march contributed to a shift in the police department Office of Homeland Security changing its focus. More than 1,000 people shut down the Hernando DeSoto Bridge in a Black Lives Matter protest that also included other organizations. The spontaneous protest on the bridge followed a march from the National Civil Rights Museum to the plaza of FedExForum. Protesters were bringing attention to the fatal police shootings of black men across the country including Darrius Stewart in Hickory Hill a year earlier.

“In the months following the Bridge Incident, public threats were made by certain individuals that were involved with the organization of the Bridge Incident to "Go back to the bridge" and "Bridge Part II," Wellford wrote in his argument to the court. “Additionally, threats were made to hold large, unpermitted rallies at The Commercial Appeal, the Chamber of Commerce, and Graceland, just to name a few. All of these threats were made via social media. While the cause espoused by the protestors may have been valid, the risk of violence and public harm was high.”

As police presence at protests became more visible, organizers contended there was also police surveillance of some protesters including photos and video of them.

Garner said his post recommending the Alinsky book may have been a private post that he didn’t make public, although he said most of his posts are public.

Reynolds testified that he wasn’t sure how he received the post other than through another officer.

“I do not know if this was sent to him as a complaint or if he's friends with Mr. Garner. I don't know,” Reynolds said. Mandy Floyd, the American Civil Liberties Union attorney questioning him, then asked, “Who is Bob Smith?”

Reynolds said Smith is a friend of Paul Garner and said he didn’t know Smith. “It’s a Facebook account,” he answered.

“Who controls the Facebook account Bob Smith?” Floyd asked.

“That information is a source,” Reynolds answered. “It might disrupt a past, present, or future investigation.”

Wellford then said, “Based on that, I'm going to instruct him at this point not to answer further questions on this specific subject.”

“Is the Bob Smith account controlled by someone in the Memphis Police Department?” Floyd asked later.

Wellford answered, “Based on his previous response, we're not going to allow him to testify anything further on the details as to how the Bob Smith account is employed by the Memphis Police Department.”

The pending lawsuit stems from the City Hall list of those required to have a police escort when visiting City Hall. In 2016, Memphis police added the names of several dozen citizens active in an uptick in protests over the last two years.

The names were later removed after Mayor Jim Strickland said he didn’t know why they were added. The city has said it was a mistake to implement the escort rule, and it was never enforced for anyone added to the list.

Several on the list filed a federal lawsuit in February 2017, contending the list and other actions by Memphis police indicated surveillance in violation of a 1978 federal court consent decree.

Bruce Kramer, the attorney representing some of the protesters, including Garner, are “neither fish nor fowl,” since U.S. District Judge Jon McCalla ruled that they are not part of the lawsuit but has not issued an order that allows Kramer to appeal the specific decision.

That leaves the ACLU of Tennessee as the plaintiff in the case because it was a plaintiff in the 1978 case.

Kramer, an attorney in the 1978 case, said the city has “intentionally and systemically decided not to abide by this order.”

“I would lose all faith in the judicial system if the judicial system accepts the city’s meritless argument that this is to protect the protesters,” he said. “None of these people are violent people. There’s been no threat by any of them. That’s a subterfuge for them to try and justify trampling upon peaceful protest.”

Wellford argued police responded to a national backdrop of terrorism, violent counter-protesters and those infiltrating lawful protests to circumvent lawful behavior.

The Homeland Security office of the MPD kept “a spreadsheet of protests to track the size of each protest, the organizers of the protests, and whether the protests were permitted,” according to his filing in the case.

“The purpose of the spreadsheet was to be able to better prepare for the protests in terms of manpower, as well as budgets,” it reads. “Because of the MPD's severe officer shortage, every large protest in the City inevitably requires thousands of dollars of overtime hours by MPD.”

In his deposition, Rallings, the police director, said he was reacting to police shootings, shootings of police officers, protests and counter protests that he said came with warnings from federal law enforcement officials of “legitimate protests being infiltrated by individuals that want to commit acts of violence or the threat of legitimate protests and acts of violence being committed against them.”

“So within that context, we were trying to make sure that we had a tool to deal with individuals that had personally committed to me that they would commit acts of civil disobedience or they wanted to be arrested and try to have a way to mitigate some of these incidents,” Rallings said. “Because at the end of the day, we did recognize the right to protest, but we wanted them to do it lawfully. If we looked at the exhibit on the spreadsheet where 80 percent of those protests were unpermitted, so, you know, again, we're just trying to protect the peace and that's the context it was done in.”

Garner said the reasoning reflects “this very paranoid vision of who the progressive activist community is here in Memphis.”

“It’s really alarming that they have this sort of siege mentality that we are plotting,” he said. “Most of us have been very clear all along about our intentions. Yes, we all have motives. Those motives are what to do with our transit system, the way funding is allocated for communities of privilege versus underserved communities in this city. That is the agenda.”

Bruce McMullen, the city’s chief legal officer, said in a written statement with last week’s unsealing of the records that the ACLU’s interpretation of the 1978 consent decree is “out of step with modern police techniques.”

“The consent decree was drafted before the internet – before smartphones, body cameras, or any type of digital cameras,” he said. “MPD's observance of posts made on social media is consistent with best practices of law enforcement agencies across the country and is nothing more than good police work.”

Kramer disagrees.

“Did they ever go to court to get the consent decree modified? No,” he said. “They chose to just blatantly and unilaterally disregard it. A lot of things have changed since the adoption of our Constitution and our Bill of Rights. That doesn’t change what the First Amendment means. It doesn’t change what the fourth amendment means and it certainly doesn’t change what the decree says about peaceful protest.”

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