City names proposed monitor in surveillance case
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.
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]mercialappeal.com 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.