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Judge Says Memphis PD's Surveillance Of Protesters Violated 40-Year-Old Consent Decree

from the and-the-Constitution,-duh dept

Spying on people engaged in First Amendment-protected activity is a time-honored government tradition. The FBI, NSA, and CIA pioneered unconstitutional surveillance in the 1960s, leading eventually to the Church Committee's smackdown and a series of reforms aimed at preventing the casual abuse of surveillance powers.

It worked. A little. The DHS has picked up where the other agencies left off, portraying its surveillance of protesters as part of its national security purview. The NYPD has also done this regularly, violating both the Constitution and agreements it made following civil rights lawsuits.

The Memphis Police Department is another law enforcement agency that can't keep its nose out of the public's First Amendment business. A decision handed down by a Tennessee federal court will hopefully put an end to the Memphis PD's long-running violation of a 40-year-old consent decree.

The ACLU of Tennessee -- the other partner in the 1978 consent decree -- sued the City of Memphis over unconstitutional police activity. The decision [PDF] summarizes the numerous violations engaged in by Memphis law enforcement.

The Court finds that the ACLU-TN has shown by clear and convincing evidence that the City:

1) Conducted “political intelligence” as specifically defined and forbidden by the Consent Decree;

2) Operated the Office of Homeland Security for the purpose of political intelligence;

3) Intercepted electronic communications and infiltrated groups through the “Bob Smith” Facebook account;

4) Failed to familiarize MPD officers with the requirements of the Decree;

5) Did not establish an approval process for lawful investigations into criminal conduct that might incidentally reveal information implicating First Amendment rights;

6) Disseminated information obtained in the course of an investigation to individuals outside of law enforcement; and

7) Recorded the identities of protest attendees for the purpose of maintaining a record.

The fifth one on the list is especially interesting, given recent events. Last month, Facebook sent a letter to Mike Rallings, the director of the MPD, reminding him and his officers that its "real name" policy forbids impersonation and fake accounts. This isn't a practice limited to the Memphis PD, but it is the agency Facebook chose to call out publicly for violating its policies.

The 1978 Consent Decree laid this all out very clearly:

The provisions of this Decree prohibit the defendants and the City of Memphis from engaging in law enforcement activities which interfere with any person’s rights protected by the First Amendment to the United States Constitution including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose.

Furthermore, even in connection with the investigation of criminal conduct, the defendants and the City of Memphis must appropriately limit all law enforcement activities so as not to infringe on any person’s First Amendment rights.

Despite this, the PD engaged in everything listed above, which clearly violates the limitations placed on it forty years ago. After deciding the ACLU has standing to pursue this lawsuit, the court says the PD cannot invoke its "public safety" mantra to excuse surveilling protesters, even if public safety was actually its true objective. Trying to dodge culpability by claiming forbidden surveillance is just good police work is a non-starter. The consent decree does not give the MPD the wiggle room it thinks it has.

The Consent Decree... is clear and unequivocal in its language. Understood in its entirety, the Consent Decree bans investigative activity into the exercise of First Amendment Rights by Memphis residents. Political Intelligence is impermissible as the means of investigation, as the ends of investigation, or as an intermediate step in a larger investigation. The City has agreed that it will not engage in certain activity and is bound by that agreement.

The details of the violations run several pages. This is just the beginning of the MPD's wrongdoing.

MPD’s Real Time Crime Center (“RTCC”) conducted political intelligence when an officer searched its social media collator for all instances of the term “Black Lives Matter,” because the information gathered related to First Amendment Rights. MPD officers gathered and circulated social media posts about potential boycotts and boycotts are squarely within the protection of the First Amendment. MPD gathered information on journalists based on their associations with Black Lives Matter. (Testimony of Eddie Bass, ECF No. 138 at 5736-37; Ex. 120 “Below are three twitter accounts for two freelance journalist[s] and one Commercial Appeal journalist who apparently have the trust of the BLM protesters. These accounts seem to provide good real-time information during a protest event.”) MPD indexed information relating to the leadership of lawful protests. Major Lambert Ross ordered social media monitoring for a “BLM Rally” and a “Community Organizers Cookout.” Each of these represents an affirmative investigative act focusing on First Amendment rights in violation of the Consent Decree.

In addition, the MPD converted its "Office of Homeland Security" into a clearinghouse for unconstitutional surveillance, gathering "political intelligence" on everyone from Black Lives Matters to pro-Palestinian activists to people pushing for a $15/hr minimum wage. The PD's "Bob Smith" Facebook account was used to track political activists and surveill their activities.

All of these violations stemmed from the MPD's failure to train its officers to comply with the consent decree. It's not so much of a failure as it is decades of just not caring. The PD dedicated one page to the decree in its "voluminous policy and procedural manual." Officers engaged in violations were often not aware they were violating the decree. This ignorance was also displayed by department supervisors and officials. As the court points out, this isn't a new problem. It's a continuous problem directly traceable to "inadequate training over a sustained period of time."

Here's what the city will be doing to remedy this. First, the PD will be forced to stop gathering "political intelligence" because there's no possible way for it to do this and still comply with the consent decree. It will also prevent any misunderstandings of what's forbidden by the consent decree. The PD will also need to train its command staff on decree compliance, quite possibly for the first time. Guidelines will be developed and put in place to govern the MPD's social media activities. All social media search terms used by officers or investigators will need to be turned over to the court every three months. And, as a capper, the city will be paying the ACLU's legal fees.

This may eventually upend some deep-seated problems in the department. Then again, the MPD has had 40 years to perfect its compliance with the consent decree and has steadily moved farther away from the crystal-clear restrictions it contained. If nothing else, a federal court has publicly aired the department's dirty laundry. This may not push the MPD into admitting and accepting it has a problem. But it does prevent it from remaining in denial.


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  • identicon
    Anonymous Coward, 1 Nov 2018 @ 3:00pm

    "MPD has had 40 years to perfect its compliance"

    I sure all they need is just more time. After all, 40 years is just a blink in geological terms.

    Of course, if YOU don't move fast enough when an MPD cop tells YOU to do something, it could result YOU in being tasered (or worse).

    reply to this | link to this | view in chronology ]

    • icon
      stderric (profile), 1 Nov 2018 @ 3:09pm

      Re: "MPD has had 40 years to perfect its compliance"

      40 years is just a blink in geological terms.

      I think the MPD was reasoning from the other end of the scale: once the consent decree had been in effect for 18 years, they they thought they could stop worrying about it.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Nov 2018 @ 9:25am

        Re: Re: "MPD has had 40 years to perfect its compliance"

        It is a little unusual for one to last this long, isn't it? Facebook, for example, only agreed to stop doing illegal stuff for 20 years with the 2011 FTC decree. AT&T has already recombined after being broken up in 1982.

        reply to this | link to this | view in chronology ]

  • identicon
    SpaceLifeForm, 1 Nov 2018 @ 3:12pm

    DHS is just a typo for SS

    Make sure you can vote 2018-11-06 if you can.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Nov 2018 @ 3:29pm

    "I'm Fucking For God" - Memphis, MLK & FBI's 50 y.o. porn stash

    We should not forget that Memphis was where Martin Luther King was assinated in 1968, and up util that time he was the Most Surveilled American ever, his many romps with prostitutes in hotel rooms caught on tape as well as being set up by FBI infiltrators that surrounded him (Indeed, federal agents were not just consuming porn back then, they were helping create it!)

    MLK's entire FBI surveillance file is set to be released to the public in 2027 (but don't hold your breath that it actually will be) and we should then get some idea of the shocking level of police surveillance he received up until the very day he died.

    https://www.theatlantic.com/entertainment/archive/2009/06/moreover-please-stop-the-mlk-worship/ 19866/

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Nov 2018 @ 3:35pm

      Re: "I'm Fucking For God" - Memphis, MLK & FBI's 50 y.o. porn stash

      MLK's entire FBI surveillance file is set to be released to the public in 2027...

      I imagine large portions of it will be "accidentally" misplaced or shredded by then (if not already).

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 3 Nov 2018 @ 11:10am

      Re: "I'm Fucking For God" - Memphis, MLK & FBI's 50 y.o. porn stash

      Assinated?

      You make that sound so gay.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Nov 2018 @ 3:32pm

    It's as if the Constitution and the Declaration of Independence

    were just rolled up into makeshift clubs and used to cudgel the population at will.

    All that effort by the founding fathers to not "be as unto the stupidity of the English monarchy and legal system" was for naught.

    When the current US legal system acts much like the abusive UK system everyone fought so hard, and spilled blood, to escape from, you have to wonder how far that wheel has to go to turn full 180 degrees.

    Is Paul still revered?

    reply to this | link to this | view in chronology ]

    • icon
      Richard M (profile), 2 Nov 2018 @ 6:10am

      Re: It's as if the Constitution and the Declaration of Independence

      Democracies always devolve into some type of Dictatorship/Police State of some type. The fact that the US is organized as a republic has slowed the process but has not stopped it completely.

      The "Founding Fathers" were not a monolithic block that agreed on everything so part of the problem with the constitution like everything else political is that it was a series of compromises. That fact that they did as good a job as they did is actually pretty amazing when you compare it to all the politically compromised documents that have been created since then.

      However it was and is not perfect protection which is why we are now seeing a accelerating fall into a police state.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Nov 2018 @ 3:33pm

    I think the Police has every right to video people out in public as anyone else. It's a first amendment protected right.

    It's really no different from security cameras. I'm all for them recording the thugs. Don't act like a thug in public!!!

    The police record you, and you have every right to record right back at them.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Nov 2018 @ 3:46pm

      Re:

      That might be the case in general, but in this case, the city, and therefore the police, specifically agreed that they wouldn't. That's what the consent decree is.

      Regardless of what you think they have the right to by default, the default does not apply in this case due to the consent decree.

      Memphis PD made a legally-binding agreement to not do certain things, and they did those things they agreed to not do. Therefore they are being found legally culpable for that breach.

      reply to this | link to this | view in chronology ]

      • icon
        The Wanderer (profile), 2 Nov 2018 @ 10:00am

        Re: Re:

        While I concur with the Insightful votes, I think there's a nuance you didn't address.

        I think the argument being made is that while the city agreed not to do it, the individual police officers who are actually doing it and came on board after the agreement was made did not agree to any such thing, and - since doing it is First Amendment-protected activity, and those individual officers have First Amendment rights - the city cannot compel them to do so; any attempt by the city to do that would itself be unconstitutional.

        In theory, if the employment agreement for those officers contains terms requiring them to agree to follow the consent decree (or not get/keep the job), that would obviate that objection. However, given the apparent limited effort put into complying with the consent decree in other regards, I would be surprised if there were any such terms in place.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 2 Nov 2018 @ 9:38pm

          Re: Re: Re:

          If the consent degree is so narrow as to apply to specific people rather than people employed by a specific group(in this case the city police), such that you could bypass it simply by hiring new people/transferring them in from another city then someone seriously screwed up writing it.

          reply to this | link to this | view in chronology ]

          • icon
            The Wanderer (profile), 3 Nov 2018 @ 4:26am

            Re: Re: Re: Re:

            The argument would be that if specific group X is prohibited from requiring people to do Y, then any agreement entered into by X to require people to do Y is void, because X does not have the power to do that.

            Thus, it wouldn't matter how the consent decree was written, because the entity which is agreeing to it (the city) is Constitutionally prohibited - by the same First Amendment which the decree is aimed at enforcing - from doing what the decree would require it to do.

            The only loophole I see in that is the idea of the decree requiring the city to embed the decree's more-individual requirements in the terms of the officers' employment contracts - including altering the terms of the contracts of anyone who's already employed, firing anyone who won't accept the alteration, and eating any costs which such firing might trigger.

            (I think what I'm doing is basically arguing the libertarian - or perhaps the Libertarian - perspective on this. Which feels weird, since I don't really agree with the parts of that worldview which (would?) give rise to this argument (the fetishization of the right of private contract, among other things), but since I can see the argument it seems like intellectual dishonesty not to try to make sure that counterarguments don't overlook it.)

            reply to this | link to this | view in chronology ]

            • icon
              That One Guy (profile), 3 Nov 2018 @ 8:15am

              Re: Re: Re: Re: Re:

              Under that reading it seems to me that any NDA would also be prohibited, as that would violate the free speech rights of the one asked to work under it.

              There are exceptions to the first amendment and 'If you want to work here you're not allowed to do X' is, I would think, a fairly well known and accepted one for the most part, such that I'm not seeing the problem here.

              reply to this | link to this | view in chronology ]

              • icon
                The Wanderer (profile), 4 Nov 2018 @ 2:57am

                Re: Re: Re: Re: Re: Re:

                As the NDA would presumably be incorporated into the employment contract, I imagine that that would be given a pass under the same terms-of-employment-contract loophole as I cited in my previous comment; right of private contract (including the right to give up one's other rights in exchange for something, such as employment) again.

                The problem, under that model, would be that it seems likely that the employment contract for the officers wasn't actually modified to incorporate the terms of the consent decree (either directly or by reference).

                While I was sleeping tonight, another angle - and possibly one less likely to require such gymnastics - for permitting this to work occurred to me: the "state actor" doctrine, and the fact that a police officer operating within the confines of his or her duties is by definition a state actor. Unfortunately, either I don't have a sufficiently clear grasp of that doctrine to argue it with facility for this context, or I'm pretty sure those with the type of [Ll]ibertarian mindset I'm sort-of standing in for here would see the imposition of such a doctrine overriding the First Amendment rights of the individual officers as a problem with the doctrine rather than a reason why the officers should be bound by the decree.

                reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Nov 2018 @ 3:46pm

      Re:

      We are happy that you think this. It has nothing to do with the article you are commenting on though.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Nov 2018 @ 7:59pm

      Re:

      Well there is a major difference - they work for us. Technically we the people could demand that they do police work in frilly pink tutus but there is no way that would pass nor that it wouldn't cause most to quit from the insult and impracticality alone.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Nov 2018 @ 6:26am

      Re:

      I think the Police has every right to video people out in public as anyone else. It's a first amendment protected right.

      The bill of rights is to protect the people from the government, not the other way around, dipshit.

      reply to this | link to this | view in chronology ]

      • icon
        The Wanderer (profile), 2 Nov 2018 @ 10:03am

        Re: Re:

        The argument is that the police officers in question are themselves people, and as such are protected by the Bill of Rights from government prohibitions on doing things like this, just as much as any non-police people would be. There are holes in that argument, but the point you attacked isn't one of them.

        Also, tossing around words like "dipshit" doesn't exactly help, in almost any argument.

        reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 1 Nov 2018 @ 5:06pm

    Remedy?!

    Here's what the city will be doing to remedy this.

    Haw...haw...haw...hoo...hee...hee...haw...haw...! Stop, you're killing me with these jokes!

    IF you think anything is changing, other than the MPD surveillance going dark, you haven't been paying attention.

    reply to this | link to this | view in chronology ]

  • identicon
    John Cressman, 2 Nov 2018 @ 5:14am

    Yes... or no...

    While I'm not a big fan of police surveillance in general, the recent violence of some of these protests does warrant a PASSIVE surveillance, so that police can respond if necessary.

    PEACEFUL protests are a protected Constitutional right whereas burning down or looting a neighborhood because you didn't get your way IS NOT a protected Constitutional right.

    The police DO have an obligation to protect citizens NOT engaged in "protesting" and their businesses. If that means keeping an eye out, then so be it.

    And yes, while Trump rallies have yet to lead to looting, there's been some alterations, so they should be kept an eye on too and any instigators arrested - AS THE LAW DICTATES.

    reply to this | link to this | view in chronology ]


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