McCalla rules no changes to 1978 consent decree on police political surveillance

By  and , Daily Memphian Updated: November 14, 2019 4:25 PM CT | Published: November 14, 2019 11:41 AM CT

A federal judge has denied the city’s motion to change the 41-year old consent decree barring political surveillance by the Memphis Police Department.

U.S. District Judge Jon P. McCalla issued the 49-page ruling late Wednesday evening. It comes after several weeks of a public push by Mayor Jim Strickland and Memphis Police Director Michael Rallings for changes to the 1978 decree.

The city, in its formal argument to modify the decree, mirrored the push by Strickland and Rallings. The argument told the court the decree prevents it from sharing information with the Shelby County Sheriff’s Department, Shelby County Schools, the FBI’s joint terrorism task force, the Tennessee Fusion Center and the and the Multi-Agency Gang Unit.

The legal argument and the city’s push also portray the limitations as a burden that keeps police from acting quickly on public safety concerns and threats.

<strong>Jon McCalla</strong>

Jon McCalla

The city argued, both in and out of court, that the decree even prevented it from participating in the CrimeStoppers program, stating the decree would “effectively end the program” if it could not get information from tipsters.

McCalla said that wasn’t the case but also ruled the city and police would have to make sure information from other agencies and from citizens does not violate the consent decree’s specific prohibition on political intelligence-gathering by police. McCalla said that shouldn’t be an undue burden on police.

“The Kendrick Consent Decree was not designed to prevent good-faith law enforcement investigations into criminal activity within the boundaries of the Fourth Amendment,” McCalla wrote. “The Decree was meant only to prohibit the City’s surveillance, capture, cataloguing, maintenance and dissemination of political intelligence unrelated to any legitimate law enforcement activities.”

He added: “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.”

In another part of the ruling, McCalla said the changes proposed by the city would “eviscerate” the consent decree.

The consent decree came back to life with a City Hall list of visitors to the building barred from entering it without a police escort at all times. The list came to include those involved in a wave of protests over the past five years in Memphis.

Strickland said he had no knowledge of the additions to the list, and the protesters and activists were later removed from it by Rallings. But the list prompted a lawsuit in federal court, alleging violations of the 1978 decree and revelations of police monitoring protesters and activists on social media. McCalla ruled the consent decree was still in force and that the city’s recent activities violated its terms.

City chief legal officer Bruce McMullen, during a Thursday recording of the WKNO-TV program “Behind The Headlines,” said at first glance he doubts the city will appeal Wednesday’s decision.

“I don’t know yet, but I doubt it,” he said. “What we got from the ruling was some insight into, some instruction into, how the court interpreted the consent decree,” he said. “The court didn’t quite interpret it the way the monitor interpreted it. The court didn’t quite interpret it the way we interpreted it. It gave us some guidance.”

Memphis Police Director Michael Rallings, on the same program, talked in the present tense about changing the consent decree and insisted the police department’s monitoring of protesters was for safety reasons.

“No one’s constitutional rights were violated. The decree is very difficult to abide by. Some of the stuff that you’ve said, I haven’t seen,” he said when asked about court documents detailing a fake Facebook account used by police and about intelligence that noted things like book recommendations made by some of those monitored.



“We never stopped anyone from expressing their First Amendment rights,” Rallings said when asked if the police department made mistakes. “There are some people that are alleging certain things that have yet to be proven. Did we make mistakes? Based on the judge’s interpretation, we did. But we are here to try to do everything we can to comply with the judge’s interpretation of the decree.”

Rallings said the consent decree is “outdated.”

Memphis attorney Bruce Kramer, who was counsel for the American Civil Liberties Union and a signer of the 1978 consent decree, disagrees.

“The First Amendment, the language, the ideas and the principles haven’t changed since 1787,” he told The Daily Memphian. “Just because technology has changed dramatically, it hasn’t changed the basic content of privacy and right to petition your government and express your opinion and be secure in your political thought and association.

“It was negotiated back and forth, and the words mean something,” he said. “The situation hasn’t changed. The core principals of protecting the constitutional rights of people who want to exercise their First Amendment right to protest are the same.”

Kramer called the judge’s opinion on the matter “very extensive, very detailed and very well-reasoned.”


Judge to consider unsealing closed-door session records in police surveillance case


McCalla noted in the initial ruling last year that the consent decree's standards go beyond Constitutional guarantees.

“Even assuming the City’s assertion to be correct, that the First Amendment permits the surveillance of political activity, the Court would not be inclined to accept a modification that ‘strive(s) to rewrite a consent decree so that it conforms with the constitutional floor,’” McCalla wrote in the Wednesday ruling quoting from the city’s motion.

“Moreover, even if the Court agreed with the City in its assertion that Sixth Circuit precedent forecloses a finding that surveillance of political activities alone violates the First Amendment, the cataloguing and dissemination of protected political information gathered as a result of police surveillance would more readily approach a cognizable First Amendment claim,” he wrote.

McMullen and Rallings described situations in which police have had questions about the consent decree in the course of answering police calls, and they had consultations Ed Stanton, the court-appointed monitor, about what is allowed or whether it violates the consent decree.

“The monitor has to make real-time decisions. We have to make real-time decisions,” McMullen said. “Our overall objective for everybody is to provide public safety and not infringe on someone’s constitutional rights.”

Rallings argued time is of the essence, and the standards affect policing beyond protests and politics.

“If there was something we could do to intercept something that alerted us to a possible school shooting or some type of child sexual predator, I think everyone would expect law enforcement to act,” he said. “If my officers fear they can’t use social media, that means that we’re not looking and my fear is that something catastrophic could occur.”

But McCalla rejected that specific interpretation of the limits on police.

"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," he wrote. "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."

And McCalla said Stanton has made it clear the city “may not benefit from the intel.”

“The Monitor’s reference to “Intel” is significant. Specifically, this language refers to the City’s gathering and maintenance of political intelligence, which the Court defined in its Order and Opinion,” McCalla wrote. “This reading of the meaning of 'Intel' is supported by the Monitor’s summary of the types of information that cannot be gathered, or received, by the City per the terms of … the Decree.

“The better reading of the Monitor’s interpretation, which better comports with the purposes and protections of the Kendrick Consent Decree, would require the City to reject outright only information constituting political intelligence that is unrelated to any legitimate law enforcement activities, as is prohibited by … the Decree,” McCalla ruled.

In addition to issuing an order denying the city’s request to modify the consent decree, the court denied the city’s request to keep sealed a transcript from an Aug. 27 conference hearing.

The closed-door meeting with McCalla and attorneys for the city and the ACLU, as well as members of the monitoring team, was requested by the city’s attorneys to discuss “time-sensitive, security-related matters.”

Those matters dealt with the city’s participation in the Multi-Agency Gang Unit, the Memphis and Shelby County Crimestoppers program and the National Public Safety Partnership Symposium that brought federal, state and local law enforcement to town for the conference Sept. 11.

McCalla said the discussion of the symposium did “pose an immediate security risk to specific individuals” but not the discussion about the gang unit and CrimeStoppers, and the court said it will unseal portions of the August transcript from the closed-door meeting.

“The Court reiterates that ‘rigorous transparency” is one of the three core principles governing the Independent Monitor’s functions. “Rigorous transparency would be disserviced by allowing the transcript to remain under seal and unavailable to the public.

McCalla has set a telephone status conference for Jan. 2 for all parties to discuss the schedule for any future evidentiary hearing on the city’s modification motion.

The “Behind The Headlines” episode with McMullen and Rallings airs Friday at 7 p.m. and Sunday at 8:30 a.m.

Topics

Behind The Headlines Bruce McMullen consent decree Jon P. McCalla Police Surveillance

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Bill Dries

Bill Dries

Bill Dries covers city and county government and politics. He is a native Memphian and has been a reporter for more than 40 years.

Yolanda Jones

Yolanda Jones

Yolanda Jones covers criminal justice issues and general assignment news for The Daily Memphian. She previously was a reporter at The Commercial Appeal.

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