Judge rules against city on consent decree
Memphis argued order hindered police dept.
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 efforts 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, modification 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 fight 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 Office, 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 filed 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 crimefighting tools still operative,” Mcmullen said. Mccalla, in his ruling, said any modification 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 unmodified, 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 filings 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.