Judge rules for ACLU in police spying case
A federal judge has ruled the city of Memphis gathered “political intelligence” against activists, delivering a win for the ACLU of Tennessee in advance of an upcoming trial on police spying.
The Memphis Police Department’s intelligencegathering violated a 1978 agreement against spying on demonstrators, U.S. District Judge Jon McCalla wrote in an order released Friday.
But the judge said other questions remain open to debate, and he stopped short of issuing the total ruling in the ACLU’s favor that the group had requested.
The judge is expected to hear arguments in a bench trial that’s scheduled to go forward as planned on August 20. He has also rejected the city’s request for an immediate ruling in its favor.
That 1978 agreement, or consent decree, was created after the revelation that the city police had an entire unit dedicated to spying on anti-war demonstrators and others who hadn’t committed crimes.
In recent years, the city has repeated similar actions against activists with Black Lives Matter and related movements, McCalla wrote.
“The city engaged in ‘political intelligence’ as defined and prohibited by the consent decree,” he wrote in a 35-page order.
The judge cited several specific violations. They include creating a security list, or authorization of
agency, following a December 2016 demonstration at Mayor Jim Strickland’s house in which demonstrators pretended to lie down dead on his lawn.
“The (security list) included individuals who did not participate in the die-In at the mayor’s house.” The judge said the record shows the city used people’s associations with a protest leader, Keedran Franklin, to add them to the list.
“The record shows that the city gathered and disseminated information relating to their associations protected by the First Amendment,” McCalla wrote.
The judge also said the city engaged in “political intelligence” when it created and distributed documents called Joint Intelligence Briefings, or JIBs.
“The city’s JIBs included information about events on private property,” the judge wrote. “For example, one JIB included information about a ‘Black Lives Matter Memphis Chapter . . . meeting at Pilgrim Rest Baptist Church,’” he wrote.
“The JIBs also included information about events whose purpose appears to be undeniably lawful. For example, one JIB included information about an event called ‘Black Owned Food Truck Sunday.’ Therefore, the city gathered and disseminated information relating to persons’ associations protected by the First Amendment.”
The judge also said the city engaged in “political intelligence” when it sent plainclothes police officers to photograph and identify participants at protests.
The judge cited police Major Stephen Chandler’s testimony that MPD “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.”
The judge left open the question of whether the city had done all of this with the intention of political intelligence, or the intention of stifling free speech.
He said these are some of the many issues that have to be explored at trial.
The judge also issued an interpretation about monitoring of social media. He wrote police may use social media monitoring to search for specific threats to police and public safety.
“The consent decree does not prohibit the city from monitoring social media altogether, it simply prohibits the city from casting too wide a net,” he wrote.
Efforts to reach ACLU attorney Bruce Kramer late Friday night were unsuccessful.
City Chief Legal Officer Bruce McMullen issued a statement.
“The Court’s ruling was an interpretation of the definition of ‘political intelligence’ under the consent decree,” he wrote.
“While several issues remain to be considered at trial, the city maintains the 40-year-old consent decree, which was drafted before the existence of the Internet, security cameras, body cameras, sky cameras, traffic light cameras and smart phones, is woefully outdated and impractical to apply in modern law enforcement.”
He said the city must use social media and other technology to ensure public safety.
“Memphis has had several protests, including the bridge protest, Confederate 901, Valero, Antifa, and the Greensward. We are proud that MPD’s efforts have prevented disruptions and violence from happening while allowing citizens to engage in their First Amendment rights. And we’re confident that the Court will find that no one’s constitutional rights were violated.”
The judge’s ruling Friday follows the release in late July of a massive trove of previously sealed documents.
The documents describe in detail how the police department monitored activists in Black Lives Matter and related movements. The documents describe police techniques such as setting up a fictitious social media account under the name Bob Smith and making friends with various activists to get past privacy settings.
In court records, police officials have stopped just short of acknowledging that they control the Bob Smith account.
In a recent interview, McMullen, the city attorney, went ahead and acknowledged it. “Bob Smith is nothing more than undercover police work,” he said.
The documents also show how the police monitored protests. One of those protests took place on the front lawn of The Commercial Appeal’s building on July 16, 2016.
The protest came in reaction to a headline about a major shooting in Dallas that said “Gunman targeted whites.”
Some saw it as inflammatory given the context of racial upheaval in the country that year. The headline writer and others maintained it was accurate. The demonstration that summer concluded peacefully.
While the protest went on, police officials monitored it live and traded emails about what was happening, according to documents provided by the city to the ACLU and included in the court record. And at least one plainclothes police officer took pictures of people in the crowd, according to the court records.
And the newly released documents also show how police gathered intelligence in other ways, for instance putting together Power Point presentations that aimed to keep track of associations among activists.
At trial, the judge could determine sanctions against the city.
“That sanction will depend, in part, on how many of the consent decree’s provisions the city is determined to have violated and the details of the city’s specific violations,” the judge wrote.