Judge issues sanctions against city for violating consent decree

By Published: October 26, 2018 9:59 PM CT

U.S. District Judge Jon P. McCalla ruled Friday that the ACLU of Tennessee had legal standing to sue the city of Memphis, saying that there was "clear and convincing evidence" that the city conducted political intelligence against activists in violation of a 40-year-old consent decree.

The judge's ruling, including sanctions handed down, comes after a three-day trial in August on the legal standing issue.

On Aug. 10, McCalla ruled that the city violated the 1978 consent decree order that prohibits it from gathering political intelligence on citizens. During the non-jury trial from Aug. 20-23, McCalla heard testimony from police and activists before deciding whether the American Civil Liberties Union of Tennessee has legal standing in the 2017 political surveillance lawsuit.

In his order issued Friday, McCalla said "the Court finds that the ACLU-TN has demonstrated by a preponderance of the evidence that it was the entity that entered into the 1978 agreement with the City. Thus, the ACLU-TN has standing to bring the lawsuit."

McCalla said in his order that the city violated several areas of the consent agreement, including when it:

  1. Operated the Office of Homeland Security for the purpose of political intelligence.
  2. Intercepted electronic communications and infiltrated groups through a shadow "Bob Smith" Facebook account.
  3. Failed to familiarize Memphis Police Department officers with requirements of the decree.

The judge said MPD must get training on "responsible use" of social media tools. McCalla did not issue any sanctions against the city or its officers for "discriminating against certain points of view," McCalla ruled, but the city "must be held responsible for its failure to live up to the high standards it set for itself in 1978."

During the trial, the city argued that the consent decree was outdated in this technological world.

McCalla disagreed.

"While certain terms of the consent decree may be outdated, the concepts are not, and the dilemma faced by the city is not new," McCalla wrote in his order. "Memphis is unique in having imposed a higher standard on itself by adopting the 1978 consent decree, but it is not alone in confronting the questions presented by modern surveillance. Every community must determine how much of its citizens' privacy it is willing to sacrifice in the name of public safety. The idea that police should be limited in their powers predates 2018 and 1978."

McCalla did impose sanctions to make sure moving forward the city complies with the consent decree.

The sanctions include:

  1. The police department must revise its departmental regulations to define political intelligence
  2. Members of the Office of Homeland Security, the Real Time Crime Center and MPD's command staff must be trained about political intelligence
  3. The city must establish written guidelines for the use of manual social media searches and social media collators in compliance with the decree and make the guidelines available to all officers with access to social media collators. 

To ensure that MPD and the city comply with the consent decree, McCalla said the court will appoint and the city will pay for an independent monitor to supervise the sanctions. The city must also pay the legal fees of ACLU of Tennessee.

Memphis Mayor Jim Strickland said earlier this week the police department was already making changes to its surveillance policy from McCalla’s first ruling earlier this year on the basic questions, whether the ACLU had standing or not. 

"MPD now has a strict protocol for initiating an investigation that would require an officer to monitor social media platforms—and did so, well before this ruling," said city communications chief Ursula Madden in a written statement late Friday. "The Court believes that we can do better, and we agree."

"While our police department continues nationally accepted best practices in policing to ensure public safety, we have no objection to working with the ACLU of West Tennessee Inc. on choosing a Court ordered monitor to ensure MPD remains in compliance with the consent decree providing safety for our citizens and protecting their privacy," she added.

Thomas H. Castelli, legal director of the Tennessee ACLU-TN, termed the ruling “a tremendous victory for free speech in Memphis and nationwide.”

“The court not only recognized that under the consent decree Memphis residents enjoy even stronger free speech protections than those afforded by the First Amendment, but that this uniquely positions Memphis to be a standard-bearer for cities across the country as they wrestle with how to protect individuals’ privacy and free speech in the face of ever-growing surveillance technologies.”

Tennessee ACLU executive director Hedy Weinberg said the ruling “ensures that activists in Memphis can continue to fight the good fight without fear of unwarranted police surveillance.”

“The right to free speech is crucial to our ability to speak out against injustice and to hold the government accountable," Weinberg said. "Especially in this day and age, being able to truly engage in dialogue about important issues without the threat of intimidation is vital to our democracy.”


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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