City names pro­posed mon­i­tor in sur­veil­lance case

The Commercial Appeal - - Front Page - Daniel Con­nolly Mem­phis Com­mer­cial Ap­peal USA TO­DAY NET­WORK - TEN­NESSEE

The city of Mem­phis has pro­posed for­mer fed­eral prose­cu­tor Ed Stan­ton III as the court-ap­pointed mon­i­tor in a high-pro­file law­suit over po­lice sur­veil­lance.

The city’s nom­i­na­tion of Stan­ton is re­lated to a fed­eral judge’s re­cent court or­der in a law­suit led by the ACLU of Ten­nessee.

U.S. Dis­trict Judge Jon P. McCalla ruled the city vi­o­lated a 1978 con­sent de­cree against po­lit­i­cal sur­veil­lance through steps such as us­ing the fic­ti­tious “Bob Smith” so­cial me­dia ac­count to watch ac­tivists’ on­line post­ings.

Those tar­geted for sur­veil­lance in­cluded peo­ple as­so­ci­ated with Black Lives Mat­ter, the Fight for 15 la­bor move­ment for fast-food work­ers, and the Save the Greensward move­ment over zoo park­ing.

In Oc­to­ber, the judge or­dered the city to take steps, in­clud­ing train­ing of­fi­cers not to con­duct po­lit­i­cal sur­veil­lance.

A court-ap­pointed mon­i­tor will over­see com­pli­ance with the judge’s or­der. The judge asked both sides to sub­mit names of pro­posed mon­i­tors. He will then choose which per­son to ap­point.

“The city sub­mit­ted Ed Stan­ton be­cause we feel he is highly qual­i­fied to

pro­vide the le­gal guid­ance and su­per­vi­sion sought by the court,” city chief le­gal of­fi­cer Bruce McMullen wrote in a state­ment.

In ad­di­tion to serv­ing as a high-level fed­eral prose­cu­tor, Stan­ton once worked as an as­sis­tant city at­tor­ney.

The ACLU side hasn’t yet sub­mit­ted a name of a pro­posed mon­i­tor.

Thomas H. Castelli, le­gal di­rec­tor with the ACLU of Ten­nessee, said he plans to pro­pose a mon­i­tor by the judge’s dead­line, the end of Mon­day.

He de­clined to say who’s on his short list, say­ing he’s still talk­ing with po­ten­tial mon­i­tors to see if they’re avail­able.

Black­lists and ‘Bob Smith’

The case be­gan in Fe­bru­ary 2017 when a group of ac­tivists filed a fed­eral suit com­plain­ing they’d been added to a “black­list” doc­u­ment of peo­ple who couldn’t visit City Hall with­out an es­cort.

The law­suit ex­panded into a broader look at po­lice sur­veil­lance and al­leged ha­rass­ment of ac­tivists.

On Aug. 10, McCalla ruled the city had vi­o­lated a 1978 con­sent de­cree against gath­er­ing po­lit­i­cal in­tel­li­gence.

That 1978 agree­ment was cre­ated af­ter the rev­e­la­tion that the Mem­phis po­lice had an en­tire unit ded­i­cated to watch­ing peo­ple who hadn’t com­mit­ted crimes, in­clud­ing anti-war demon­stra­tors.

McCalla wrote that in re­cent years, the po­lice depart­ment con­ducted “po­lit­i­cal in­tel­li­gence” when it cre­ated and dis­trib­uted doc­u­ments called Joint In­tel­li­gence Brief­ings, or JIBs, in­clud­ing about a Black Lives Mat­ter meet­ing at a church.

Af­ter that rul­ing, the judge al­lowed a bench trial to go for­ward while he con­sid­ered other is­sues in the case, in­clud­ing whether the ACLU of Ten­nessee had le­gal stand­ing to file suit.

Ev­i­dence dur­ing the Au­gust trial showed how the po­lice depart­ment used a so­cial me­dia ac­count nick­named “Bob Smith” to make on­line friend­ships with ac­tivists.

And in an­other no­table mo­ment, Po­lice Di­rec­tor Michael Rallings tes­ti­fied that prior to the law­suit, he had only a vague knowl­edge of the 1978 con­sent de­cree.

Sanc­tions or­dered

In late Oc­to­ber, the judge is­sued a rul­ing for the ACLU and or­dered a se­ries of sanc­tions.

Among them: The judge or­dered the city to pay the ACLU’s at­tor­ney fees, or­dered the city po­lice depart­ment to change in­ter­nal reg­u­la­tions to pre­vent po­lit­i­cal sur­veil­lance, and to hold train­ing on the new stan­dards.

The judge also or­dered the city to es­tab­lish a process for ap­proval of in­ves­ti­ga­tions that might re­sult in po­lit­i­cal in­tel­li­gence.

And he told the depart­ment to es­tab­lish guide­lines for use of so­cial me­dia and main­tain a list of all search terms that of­fi­cers en­ter into so­cial me­dia while on duty. “This list shall be filed un­der seal ev­ery three months un­til the Court or­ders other­wise,” the judge wrote. The first list of so­cial me­dia search terms is due Jan. 14.

Fi­nally, the judge or­dered a mon­i­tor be ap­pointed to over­see all these steps and for the city to pay the mon­i­tor’s ex­penses.

The city has not ap­pealed the judge’s rul­ing. The city pro­posed Stan­ton as mon­i­tor in mid-Novem­ber.

Stan­ton pros­e­cuted crimes, in­ves­ti­gated grade-tam­per­ing case

Stan­ton is a grad­u­ate of Cen­tral High School and Univer­sity of Mem­phis law school. He was ap­pointed by thenPres­i­dent Barack Obama to serve as the chief prose­cu­tor for the west­ern dis­trict of Ten­nessee.

Among the no­table cases of his ten­ure was the pros­e­cu­tion of Dale Mardis for the racially mo­ti­vated killing in 2001 of Shelby County Code En­force­ment Of­fi­cer Mickey Wright. Mardis even­tu­ally pleaded guilty.

Obama nom­i­nated Stan­ton for a fed­eral judge­ship in 2015, but the Repub­li­can-con­trolled Se­nate never voted on his ap­point­ment.

Stan­ton re­signed as U.S. at­tor­ney in Fe­bru­ary 2017, shortly af­ter the elec­tion of Repub­li­can Don­ald Trump.

Stan­ton is now an at­tor­ney with the But­ler Snow law firm. In June 2017, the Shelby County Schools sys­tem ap­pointed Stan­ton to lead an in­ves­ti­ga­tion into al­le­ga­tions of il­le­gal ac­tiv­ity at Treze­vant High School.

In De­cem­ber 2017, Stan­ton told the school board his team had found per­va­sive tam­per­ing with stu­dents’ grades at Treze­vant and that the problems may ex­tend to other schools.

July hear­ing, pub­lic com­ment pe­riod set

Even af­ter the judge ap­points Stan­ton or an­other per­son as mon­i­tor, the po­lice sur­veil­lance case won’t end.

The city has ar­gued that the 1978 con­sent de­cree is hope­lessly out of date, given ad­vances in tech­nol­ogy.

The judge re­cently set a non-jury trial to re­view pos­si­ble mod­i­fi­ca­tions to the con­sent de­cree.

Castelli, the ACLU lawyer, said the or­ga­ni­za­tion be­lieves the core anti-sur­veil­lance tenets of the con­sent de­cree should stay in place, but the or­ga­ni­za­tion hasn’t taken a po­si­tion on whether any other el­e­ments of the word­ing should change.

The hear­ing on mod­i­fi­ca­tions to the con­sent de­cree is sched­uled to be­gin July 8.

Mem­bers of the pub­lic will have a chance to sub­mit writ­ten com­ments on the mat­ter.

The com­ment pe­riod is set for April 22 through May 24. So far, the court hasn’t set up a process for sub­mit­ting the doc­u­ments.

Reach Daniel Con­nolly at daniel.con­[email protected]­mer­cialap­ or 901529-5296 and on Twit­ter at @daniel­con­nolly.



A screen shot from Face­book shows “Bob Smith” was friends with Paul Gar­ner, an ac­tivist who was one of the orig­i­nal plain­tiffs in the ACLU law­suit. Ac­tivists con­tend the “Bob Smith” ac­count was con­trolled by Mem­phis po­lice to gather in­for­ma­tion on their ac­tiv­i­ties. This im­age and many sim­i­lar ones come from court records.


An im­age from fed­eral court records shows the fic­ti­tious “Bob Smith” ac­count cre­ated an on­line friend­ship with ac­tivists in­clud­ing Tami Sawyer, who later be­came a Shelby County com­mis­sioner.

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