Judge rules in Memphis political surveillance fight, sides with ACLU on key issue

A federal judge has approved a new version of a binding agreement that governs how and when the Memphis Police Department may collect information about demonstrators and other political actors.

The document is called a consent decree and will likely remain in place for years. It updates a consent decree that dates from 1978. U.S. District Judge Jon McCalla approved the revised consent decree Monday.

The revised agreement says MPD may use new technologies such as social media, body cameras and surveillance cameras to combat crime, as long as the department doesn't trample on First Amendment rights in the process.

For instance, the revised document says MPD officers may go to a nonviolent political protest and turn on their body cameras — but they can't save the video and keep files on protesters.

"The Memphis Police Department may not retain body worn camera footage of such protests or assemblies unless it contains evidence of criminal activity or officer misconduct," the revised consent decree says.

The judge also sided with the ACLU of Tennessee on the key question of how and when the MPD can share information with other agencies that don't face the same surveillance limits that Memphis does.

The rewritten consent decree says MPD is free to cooperate with other law enforcement agencies on criminal investigations and information-sharing about threats, but cannot cooperate with another agency to avoid the restrictions of the consent decree. 

This is a victory for the ACLU of Tennessee, which had fought to keep language like this in the document — these protections were in the 1978 version. Police officials including MPD Director Michael Rallings had argued the language was so restrictive that it would keep police from working effectively with other agencies.

Thomas H. Castelli is one of the primary attorneys on the case for the ACLU.

“We are pleased that the modifications ordered today take into account new technology that did not exist when the original court order was drafted decades ago, but still preserve the strength and protections of the original,” he said in a statement.  

Jennifer Sink, Chief Legal Officer for the city of Memphis, also released a statement.

“The city is pleased the court recognized the need to make modifications to the Kendrick consent decree," she wrote. "The changes will allow the Memphis Police Department to fight crime and use modern technology to protect the citizens of Memphis while continuing to protect their First Amendment rights — which the City and its police department are strong proponents."

"The modifications will also ensure our police officers can successfully comply with the order. The former language of the 40-year old decree made that task nearly impossible."

"Ultimately, the changes will not in any way impact the rights of people to engage in their constitutionally protected activities; these rights are, and have always been, protected.”

Notable changes in the new consent decree

The rewritten consent decree deletes the term political intelligence and substitutes the phrase "First Amendment-related intelligence."

The decree reaffirms that the city cannot take part in law enforcement activities that interfere with First Amendment rights, including free speech and assembly.

Even if the city is conducting an investigation of criminal conduct, it must still limit law enforcement activities not to infringe on First Amendment rights, the consent decree says.

New language says the MPD may use social media for legitimate law enforcement purposes, including using undercover accounts to investigate criminal activity. But the decree sets limits, including requiring supervisory controls to protect First Amendment rights.

The rewritten agreement also says MPD may send police to protest marches and similar events to ensure public safety, "as long as the Memphis Police Department’s presence is not for the purpose of, nor may reasonably have the effect of, harassment or intimidation. Nothing in this provision prohibits the city from implementing reasonable time, place, and manner restrictions on First Amendment activities." 

The consent decree addresses several other issues: for instance, it says that any investigation that might interfere with First Amendment rights must be approved by the MPD director or the director's designee.

More details:Read the full text of the revised consent decree here.

Case dates to 1970s

In 1976, Eric "Rick" Carter, who had been a leader of Vietnam Veterans Against the War, learned the MPD was keeping a surveillance file on him.

He asked to see the file. In response, city officials burned his file and many others.

At the time, the MPD was operating an intelligence agency that kept tabs on a wide range of people and organizations, including the Memphis State University student government association and various other college groups, the police department's labor union, the NAACP, the Ku Klux Klan and the Memphis Area Chamber of Commerce.

A lawsuit led to a landmark legal settlement between the ACLU and the city government. Known as a consent decree, the 1978 order said among other things that the city government couldn't conduct surveillance on non-criminals, couldn't keep files on them, and banned specific activities, such as taking photographs of a political meeting and attempting to identify the people in attendance.

Fast forward to December 2016. A group of activists showed up at Mayor Jim Strickland's house. Some pretend to lie dead on his front lawn. Soon afterward, activist groups heard the city government was keeping a "blacklist" of people who couldn't enter City Hall without an escort.

Lawsuits were filed, and the ACLU of Tennessee joined in. Litigation revealed the MPD was keeping tabs on activists with Black Lives Matter and related groups.

A bench trial took place before McCalla in 2018. During the trial, city officials argued they needed to use modern social media tools to keep track of fast-moving, potentially dangerous situations, including the sudden seizure of the I-40 bridge by Black Lives Matter activists in 2016.

More details:8 things we learned at the Memphis police surveillance trial

Both before and after that 2018 trial, McCalla ruled that the city had violated the 1978 consent decree. Among other violations, he cited the city's use of a fictitious social media persona named "Bob Smith" to make friends with activists and monitor them. 

McCalla appointed former federal prosecutor Ed Stanton III as court-appointed monitor to enforce the decree.

The city government then moved to modify or vacate the consent decree, leading to further litigation.

However, the ACLU and the city government went through mediation and worked to rewrite the consent decree jointly. They reached agreement on 16 out of 17 points of debate.

That left just one question: joint operations, or in other words, how the city government could cooperate with agencies that aren't bound by the consent decree.

That's an especially important question for entities such as the Multi-Agency Gang Unit. It's an organization that consists of local law enforcement agencies working in combination with federal officials. Memphis officials argued that if the MPD officers can't freely share information with counterparts in groups like this, they could not effectively fight crime.

The impasse over this issue brought the two sides back to court. McCalla oversaw a multi-day hearing via video conference on modification of the consent decree in June. 

McCalla's ruling Monday stems from that June hearing and settles the contested issue of joint operations in favor of the ACLU.

More details:Read the full text of the judge's September 21 ruling explaining his interpretation of the revised consent decree.

Investigative reporter Daniel Connolly welcomes tips and comments from the public. Reach him at 529-5296, daniel.connolly@commercialappeal.com, or on Twitter at @danielconnolly.