Federal judge sides with ACLU over MPD's surveillance of protesters

Federal judge sides with ACLU over MPD's surveillance of protesters

MEMPHIS, TN (WMC) - Memphis Police Director Mike Rallings is defending his department after a federal ruling last week last week said the city engaged in political intelligence--despite a court order prohibiting it.

Federal judge Jon McCalla handed down a 35-page order that a legal analyst said is a blow to the city's case, which starts versus the American Civil Liberties Union of Tennessee in federal court Monday.

Tuesday afternoon, Rallings issued a lengthy statement that said in part,

"The terms "surveillance" and "spying" are being used in the media, but that's erroneous. Those words conjure up images of officers in unmarked vans on the street corner listening to tapped phone conversations. This does not accurately reflect MPD's activities, or its motivation, regarding the monitoring of events which are the subject of this lawsuit."

Click here to read the full statement.

The ACLU is accusing Memphis police of disobeying a consent decree from the late 1970s. It's an agreement that prohibits the city from gathering intelligence relating to someone's First Amendment rights.

"It would be amusing if it weren't so illegal," Mid-South Peace and Justice Center's Paul Garner said.

Controversy exploded last February when WMC Action News 5 investigators discovered a so-called city blacklist, a document full of activists that had to be escorted inside City Hall.

Recent filings in the federal case revealed the list was expanded in December 2016 after a die-in protest at Mayor Jim Strickland's house. MPD's alleged monitoring of activists increased after that point.

In his order, Judge McCalla said the city engaged in political intelligence when it:

  • Added people to the list who did not participate in the die-in at the mayor's house
  • Circulated "joint intelligence briefings" about lawful events on private property to people within and outside MPD
  • Deployed plainclothes officers to photograph and identify participants at protests

"The whole point of the consent decree was to prevent that kind of surveillance," University of Memphis law professor Steve Mulroy said.

Mulroy is a former Shelby County Commissioner and Constitutional Law Professor at the UofM. He said the city's broad approach to gathering information appears problematic in the eyes of the law.

"A lot of the things that were being surveilled didn't seem like there was any imminent threat of violent activity or any kind of unlawful act--just First Amendment protected activity," Mulroy said.

In a statement, the city maintained that the consent decree from 40 years ago is outdated and needs to be updated.

"If they thought the consent decree had been outdated, they could've moved to modify it," Mulroy said. "They didn't; they just quietly violated it."

Bruce McMullen, the city's Chief Legal Officer, issued a lengthy statement of his own Friday. It said in part:

"...the 40-year-old consent decree, which was drafted before the existence of the Internet, security cameras, body cameras, sky cameras, traffic light cameras and smart phones, is woefully outdated and impractical to apply in modern law enforcement."

Click here to read McMullen's full statement.

MPD argued that their watch of social media activity was conducted in the name of public safety--not First Amendment suppression.

A federal judge disagreed.

"Now there's going to be a trial to see just how extensive that was, whether there were other violations of the court's order as well," Mulroy said. "The court's going to decide what an appropriate punishment or sanction would be. Some sort of contempt sanction will probably be issued."

The ACLU, in previous filings, requested a court-appointed monitor to ensure MPD did not engage in political intelligence. That's something Mulroy said could be a viable option.

"Without a monitor, going forward for the next couple of years...I don't see how you'll be able to restore any trust," Mulroy said.

The bench trial is set to begin August 20.

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