MPD director Rallings to testify in ACLU lawsuit next week
Memphis Police Director Michael Rallings is scheduled to testify in federal court next week in the latest round of an ACLU of Tennessee lawsuit, an attorney for the city announced in a pretrial meeting Wednesday. And members of the public may watch Rallings’ testimony and other actions in the case by video conference.
Next week’s scheduled hearing won’t focus on the most high-profile police issue in America today, the questions over police use of force triggered by the killing of George Floyd in police custody in Minneapolis.
Rather, this hearing focuses on another controversial element of police work: surveillance, specifically the question of how the MPD may share intelligence information with other law enforcement agencies.
Rallings also testified during a 2018 federal trial in the same case over MPD surveillance of Black Lives Matter and other movements; that year, U.S. District Judge Jon Mccalla ruled the city had improperly carried out political surveillance of these groups.
If that 2018 trial is any indication, next week’s hearing could offer new insight into the behind-the-scenes practices in place at MPD today.
History of case dates to 1976
Due to the COVID-19 pandemic, next week’s hearing will be conducted by web-based video conference, a technology that didn’t exist when a predecessor of the ACLU of Tennessee filed a lawsuit against the Memphis government in 1976.
In the years leading up to that lawsuit, the MPD had conducted extensive surveillance of student activists and others, even spying on the local chamber of commerce.
The lawsuit led to a 1978 consent decree that barred the city from gathering “political intelligence” on non-criminals.
In 2017, a group of activists joined the ACLU of Tennessee in filing a new lawsuit against the city, alleging that they had been placed on a “blacklist” of individuals who could not visit City Hall without an escort.
The new lawsuit led to an August 2018 civil trial and further revelations about police surveillance, including new details about a undercover social media persona named “Bob Smith” that the police department had used to make friends with activists within Black Lives Matter and other movements.
Among those activists was Tami Sawyer, who has since been elected to the Shelby County Commission.
In rulings both before and after the August 2018 bench trial, Mccalla sided with the ACLU of Tennessee and concluded the MPD had violated the 1978 settlement.
After the trial, the judge appointed former federal prosecutor Edward Stanton III to monitor the police department’s compliance with the 1978 order.
ACLU, city agree on many issues, but a sticking point remains: multi-agency cooperation
After the trial, the city pressed for the judge to modify the 1978 consent decree, saying the document doesn’t fit modern realities, including widespread use of social media. The judge rejected that request in late 2019.
In recent months, though, the city government and the ACLU of Tennessee went through mediation and jointly rewrote the consent decree, reaching agreement in 16 of 17 areas.
For instance, both sides agree to add definitions for “social media,” “undercover account” and “legitimate law enforcement purpose,” according to court documents.
But the two sides were unable to reach agreement on the 17th issue: how and when exactly the MPD can coordinate with other law enforcement agencies.
The relevant language from the 1978 document reads as follows:
“The defendants and the City of Memphis shall not encourage, cooperate with, delegate, employ or contract with, or act at the behest of, any local, state, federal or private agency, or any person, to plan or conduct any investigation, activity or conduct prohibited by this Decree.”
In other words, the MPD can’t use another police agency to do something related to political surveillance that it’s not allowed to do by itself.
The city says that language is a problem.
Last year, then-city Attorney Bruce Mcmullen pointed to the national conference in Memphis in early September of the Public Safety Partnership as an example of problems with the consent decree. The partnership aims to build connections between local law enforcement organizations and federal agencies such as the FBI and ATF, and its national conference drew high-level officials.
Mcmullen argued that the consent decree language would prevent Memphis officials from coordinating with other agencies on security or threats to visiting dignitaries, unless they could confirm that the information was gathered consistent with the consent decree.
“If you understand the consent decree, we can’t accept any information from an agency that doesn’t follow the consent decree,” he said last year. “The consent decree is narrower than the (U.S. Constitution). … We can’t accept intelligence from them nor can we can give them intelligence, according to the consent decree.”
Mcmullen has since stepped down as city attorney, but still represents the city government in this case.
The ACLU of Tennessee responds that the city may still share information on criminal investigations and hasn’t shown how the consent decree limits its ability to work well with agencies like the FBI.
“The City bears the burden to produce evidence of what onerous burden is imposed by (this language) in addition to any normal procedures conducted with shared information,” ACLU attorneys Thomas Castelli and Mandy Strickland Floyd wrote in a court filing. “It must also present information about what delays might occur. The City may not rely on claims that these burdens exist and that they are insurmountable.”
Format of next week’s hearing – multiple experts, police department witnesses
The hearing starts the morning of Wednesday, June 17. Mccalla’s online court calendar is blocked off for both that day and Thursday June 18, though a pre-hearing discussion Wednesday suggested the hearing might continue beyond that.
Stanton, the monitor, will put on his witnesses first, and offer testimony from himself and several other members of his team, including Rachel Levinson-waldman, an expert on issues related to technology and policing.
The city will go next. In addition to Rallings, the city’s witness list includes Maj. Darren Goods, head of the Multiagency Gang Unit, as well as Deputy Chief Don Crowe and other officials and at least one outside expert witness.
The ACLU of Tennessee will put on its witnesses last. Castelli said the organization mainly wants to call police department officials as witnesses. If the ACLU completes its cross-examination during the city’s portion of the hearing, it might not need to call these witnesses again, he said.
During a video conference Wednesday, Mccalla said that he’ll still have to review each of the proposed changes to the consent decree, even if both sides agree with them.
How to watch hearing
Mccalla says next week’s video proceedings are open to the public.
Anyone who wants to watch should send an email to Mccalla’s case manager, Jeff Sample, at Jeffrey_sample@tnwd.uscourts.gov.
Sample will then send instructions on how to access the live video of the hearing.
Additionally, members of the public may contact the monitor at monitoringteam@memphispdmonitor.com.
Investigative reporter Daniel Connolly welcomes tips and comments from the public. Reach him at 529-5296, daniel.connolly@commercialappeal.com, or on Twitter at @danielconnolly.