The Commercial Appeal

Judge rules against city on consent decree

Memphis argued order hindered police dept.

- Samuel Hardiman Memphis Commercial Appeal USA TODAY NETWORK – TENNESSEE

U.S. District Judge Jon Mccalla ruled against the city of Memphis in its bid to modify the 1978 consent decree.

Mccalla denied the city’s motion to modify the decree, saying the agreement helps prevent police activity transition­ing from lawful criminal investigat­ions to political surveillan­ce. There is a scheduled hearing in January when the matter could be taken up again.

The city had contended that the 1978 decree, which forbids the gathering of informatio­n about those exercising their First Amendment rights un

less it is part of an investigat­ion, was ill-suited for 21st century policing and would harm efforts to curtail gangs or respond to terrorist threats.

Mccalla did not agree.

“The Decree was meant only to prohibit the City’s surveillan­ce, capture, cataloging, maintenanc­e and disseminat­ion of political intelligen­ce unrelated to any legitimate law enforcemen­t activities ...” Mccalla wrote.

He continued, “However, modification of (the Decree) would erode the barrier put in place by the Decree; it acts as a bulwark, ensuring that the City’s surveillan­ce practices do not cross the line from being a powerful weapon in the fight against crime to becoming an intrusive tool that improperly interferes with its residents’ First Amendment-protected activities.”

Judge says city can respond to mass shooting threats

The city of Memphis, in a sealed motion, according to Mccalla’s order, argued the consent decree prohibited the Memphis Police Department from functionin­g in the 21st century.

In its motion, Memphis argued it could not cooperate with the Multiagenc­y Gang Unit, share informatio­n with the Shelby County Sheriff’s Office, coordinate with federal agencies and Memphis Crimestopp­ers, or respond to terrorism threats.

Mccalla poured cold water on what he called a broad interpreta­tion of the consent decree, which Memphis Mayor Jim Strickland had pushed in two emails to constituen­ts.

“Under the Court’s reading ... the Decree does not prohibit the police from receiving informatio­n gathered as the result of legitimate criminal investigat­ions, supported by reasonable suspicion or probable cause, and unrelated to any protected First Amendment activities.” Mccalla said, “Nothing in the Consent Decree would prohibit, to use the City’s example, the City’s ... acceptance of credible informatio­n regarding the threat of a mass shooting.”

The ruling reveals previously unknown details of what the city argued before the court — its motion was filed under seal.

At one point the city argued that the consent decree was “putting not only the local public safety at risk, but (will) jeopardiz(e) the safety of the greater region, and, potentiall­y, the nation,” according to Mccalla’s ruling.

Mccalla wrote in response,”the City’s inability to use political intelligen­ce would not prevent the FBI, the Department of Homeland Security, the Department of Immigratio­n and Customs ... from making use of such informatio­n, assuming they could do so without violating either the U.S. Constituti­on or federal statutes or regulation.”

How did the city react to the ruling?

After weeks of publicly and privately pushing against the decree, the city of Memphis cast the ruling as a victory.

City Attorney Bruce Mcmullen said the order provided clarity and a workable means of MPD receiving informatio­n from third-party entities in certain circumstan­ces. He acknowledg­ed that some of the city’s motion to modify may be discussed further at a later date.

“We were happy that in the judge’s analysis, he gave us some indication about how we can keep these crimefighting tools still operative,” Mcmullen said. Mccalla, in his ruling, said any modification to the consent decree would require a hearing where evidence is aired, which could be set at the January court date.

Mcmullen said Memphis would still like to modify the consent decree.

“Our goal is to modify the consent decree so we can utilize 21st century policing techniques while ensuring the privacy of our citizens and ensuring we don’t infringe on First Amendment rights,” Mcmullen said.

Why does this ruling matter?

This likely won’t be the last time you hear about the consent decree.

The ruling means that the decree, which has bound Memphis law enforcemen­t activities since 1978, will continue unmodified, but it also means Memphis has been provided clarity on several issues that it has raised with the court.

After Mccalla ruled last year that Memphis had violated the decree by maintainin­g a City Hall “blacklist,” among other things, he appointed Edward Stanton III, the former U.S. Attorney for the Western District of Tennessee, as the court-appointed independen­t monitor.

Stanton and his team’s job is to monitor the city’s compliance with the decree. It is working on procedures as to how it will audit MPD’S use of social media and the training methods the department will put in place to ensure compliance. During the trial, it was revealed that Police Director Mike Rallings was only vaguely aware of the consent decree prior to the lawsuit.

The ruling also means the city of Memphis’ recent public relations push against the decree wasn’t successful. The independen­t monitoring team heard from a largely pro-consent decree crowd last week at a public meeting. The city has argued in court filings that it worries focus groups about the consent decree won’t be representa­tive of the city.

So can Memphis accept info from other law enforcemen­t agencies?

Per Mccalla, the city also took issue with being required to vet informatio­n it receives from other law enforcemen­t entities. At present, the decree requires the police director to authorize lawful investigat­ions that may interfere with those exercising their First Amendment rights.

It also requires informatio­n MPD receives from other entities to be part of a lawful criminal investigat­ion if it involves people exercising their First Amendment rights.

Mccalla detailed, like the court-appointed independen­t monitor Stanton did, that MPD could accept informatio­n if it had been vetted to make sure it did not violate the consent decree beforehand.

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