A demonstrator dressed as Confederate Gen. Nathan Bedford Forrest speaks with fellow protesters, Oct. 13, 2017. The Tennessee Historical Commission denied a request from the city of Memphis to remove a statue of Forrest from a city park.
A demonstrator dressed as Confederate Gen. Nathan Bedford Forrest speaks with fellow protesters, Oct. 13, 2017. The Tennessee Historical Commission denied a request from the city of Memphis to remove a statue of Forrest from a city park. Brandon Dill/AP

A judge rejects the city of Memphis’s argument that an unpermitted protest is unlawful and therefore fair game for police surveillance.

For months now the city of Memphis has been arguing that the surveillance its police department has been conducting on protesters, namely Black Lives Matter activists, is “simply good police work” that doesn’t violate an agreement it signed 40 years ago stating it would stop such practices. A court responded late last Friday: Actually, no, your surveillance tactics are kinda bad.

An upcoming court trial will determine exactly how bad it is, and if it does, in fact, violate the 1978 consent decree agreement. Which means the burden has been significantly shifted to the city to prove that its spying on political protesters is a legitimate exercise of its police powers.

To recap, the consent decree in question is the result of a 1970s investigation launched by an ACLU chapter in Tennessee into the Memphis police department’s practices of spying on civil rights activists dating back to 1965. Rather than bring the intel the Memphis police had gathered from surveilling activists before the court, city leaders had most of those files destroyed. The city agreed in 1978 to end those surveillance tactics for good, but last year several activists associated with Black Lives Matter found out they were on a non-public list held by city officials that determined they would need an escort when visiting City Hall. The activists sued the city, along with the ACLU of Tennessee, arguing that the city keeping tabs on them is a violation of the consent decree.

ACLU lawyers learned through the discovery phase that the Memphis police surveillance enterprise extended well beyond the City Hall list, with police agents going so far as using phony online accounts to snoop on activists’ social media profiles. A trial is scheduled for this month, but in late July the ACLU asked the court to rule in advance that the city violated the consent decree based off of the discoveries and depositions of police officials who admitted to gathering intel on the activists.

The city denies that its surveillance tactics break the consent decree terms, arguing that its collection of information on activists is done to promote the safety of the police, the public, and even of the protesters in a climate of heated tensions between law enforcement and black communities. As such, Memphis filed its own motion in court also asking the judge to rule ahead of trial that the ACLU’s lawsuit is bogus and should be dismissed. The ruling handed down by Judge Jon P. McCalla last Friday denied the city’s motion, but granted part of ACLU’s motion—specifically the part that alleges the city has been engaging in the kind of political intelligence gathering that is forbidden by the consent decree.

Newly elected Shelby County Commissioner Tami Sawyer, who was one of the activists tracked by Memphis police, commented on the decision on Twitter:

One of the primary disputes between the city and the ACLU is about city permits. The city argues that its 1978 agreement only applies to lawful assemblies of protesters, meaning those where protest organizers have obtained a permit from the city ahead of time. Without a permit, such assemblies are “unlawful” and hence outside of the scope of the consent decree, and therefore fair game for police snooping. But Judge McCalla disagreed with that reading, stating unequivocally that “the Consent Decree’s prohibition against ‘political intelligence’ is absolute: it states that ‘the City of Memphis shall not engage in political intelligence.’”

Reads the ruling:

For example, a public gathering might be technically “unlawful” because its participants did not secure a government permit prior to gathering, or it might be “unlawful” because it shuts down an interstate bridge. Only the second gathering is categorically outside the protections of the First Amendment. ...The First Amendment protects a merely unpermitted gathering, assuming the gathering “does not trigger the [government’s] interest in safety and traffic control.”

Memphis activists did carry out several protests that disrupted traffic, but as the judge points out, the city’s argument about lawful-versus-unlawful protests doesn’t hold up because the police gathered information on activists at events held in private spaces, where permits aren’t needed, such as at churches, and even at actual permitted events, such as the “Black-Owned Food Truck Day” event in 2017.  

Memphis police also gathered intel on activists from forums and venues where city permits don’t apply: Like, from Facebook. Law enforcement officials admitted in depositions that at least one online alias account was used to access the social media profiles of certain activists and Facebook groups. While technically it is not illegal for police to use social media for intel gathering in criminal investigations, Memphis police are supposed to clear such actions with the Memphis police director first, the court ruled. Memphis Police Director Michael W. Rallings told the court, however, that he authorized no such investigation. It’s because of the novelty of social media organizing that the city feels the agreement shouldn’t apply here.

“While several issues remain to be considered at trial, the City maintains 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 smartphones, is woefully outdated and impractical to apply in modern law enforcement,” said City Chief Legal Officer Bruce McMullen in a statement to the press, in response to last Friday’s court ruling. "It would prevent police from looking at publicly posted content, and severely hamper their ability to provide public safety.”

But Judge McCalla said in his ruling that if the consent decree needs updating, then the city needs to take those steps first before activating surveillance lenses on protesters.

“Prior to any such modification, however, the City is required to comply with the Consent Decree as written,” reads McCalla’s ruling. However, McMullen, speaking with CityLab, said that while the consent decree is obsolete, the city still applied the agreement terms “as practically as fits” into modern society.

“Whether there is a lawful protest or an unlawful protest is irrelevant, we’re arguing things that make no practical sense,” said McMullen. “You don’t update the consent decree everytime Facebook comes up with a new technology, it has to be a breathing document. The entire document is outdated, it doesn’t even apply today.”

The trial between the city and the ACLU will still move forward later this month, but with the city’s argument—that unpermitted protests are “unlawful” and hence not subject to the consent decree—severely compromised. However, Judge McCalla did include the caveat that while it’s clear the city engaged in “political intelligence” gathering, that it’s not clear that the city did so for the purpose of infringing on activists’ First Amendment rights. Clearing that up this month will determine what kind of penalty the city of Memphis will be subjected to if penalized at all.

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