The script was flipped in U.S. District Court last week in Memphis: Police were on trial, and citizens revved their First Amendment by tattling on the cops.
The public got a shocking look at who the lawbreakers were, and it was not the usual suspects.
More than shocking, surreal it was that ACLU vs. City of Memphis went to trial, exposing the city’s tactics of collecting and publishing information on citizens who had broken no laws -- and holding the cops’ tactics up to ridicule for clumsily watching activists through a creepy Facebook infiltrator.
The American Civil Liberties Union sued the city of Memphis, charging that the city was in contempt of a 1978 consent decree between Memphis and the Department of Justice that forbade the city from spying and gathering political intelligence on citizens – you know, such as the city and the FBI did on Dr. Martin Luther King Jr. So, it was not a matter of criminal statutes being violated; it was First Amendment rights and a court order being crossed by a city and police department that want for themselves to be able to operate in the dark, with maximum secrecy about their doings.
Judge Jon McCalla heard four days of testimony which will help him next month determine sanctions against the city, if any, and if a court-ordered monitor is required to keep tabs on the Memphis Police Department. McCalla already had ruled that police did indeed spy on citizens in violation of the consent decree.
BLACK LIST OR ‘A’ LIST?
Triggering the lawsuit was the discovery in February 2017 that the mayor and police had compiled a so-called black list, which included 55 persons who made the list for specious political reasons known only to police. They were not allowed to enter City Hall without a police escort, according to a notebook in the City Hall lobby. (About 30 other persons on the total list were described as being there for seemingly legitimate reasons – mad former employees, persons who had vandalized city property, etc.)
Some began calling it the “A List” for activists who were working for positive change in the community. Police targets included organizer Keedran Franklin and supporters of park land; citizens who bought movie tickets for teenagers, and the mother and aunt of 19-year-old Darrius Stewart, an unarmed backseat passenger who had been shot and killed by a Memphis officer after a traffic stop. Not one was claimed to have broken any laws – nobody stole anything, hit anybody. It was the thought police at work. It was defensive public officials who totally misplayed a mundane level of policy criticism.
PUT THIS ON THEIR RESUME
Perhaps the most egregious aspect of the police initiative against citizens was daily “Joint Intelligence Bulletins” (JIBs) about activists and actions that MPD sent out to private employers, such as FedEx, AutoZone, and St. Jude.
Should a citizen apply for a job with one of those companies, is he or she going to be hired after having been trashed by a law enforcement bulletin?
For example, in an Oct. 4, 2016, email, Frank McGowan, corporate security manager for FedEx, forwards to Jerry Blum, AutoZone director of security services, an “Office of Homeland Security JIB for Oct. 4, 2016.” Blum in turn emails Sgt. Timothy Reynolds, AKA Facebook infiltrator “Bob Smith,” he of the creepy Guy Fawkes mask profile photo:
“Hello Tim. Can I be included in this daily email? Thanks.”
The email list for recipients of these daily JIBs was an extensive one, which not only included the large local employers but all sorts of law enforcement administrators, from local and area police and sheriff to Tennessee Homeland Security, the FBI, Department of Justice, Arkansas State Police, various city of Memphis departments, Memphis Light Gas & Water, and more.
Rev. Elaine Blanchard, who was on the City Hall escort list, gave an example of the economic impact of such government slandering. Blanchard testified that she had lost at least one contract job when the prospective entity did not want to get tangled up with someone who was in the cross hairs of law enforcement.
MPD began publishing its own JIBs in March 2016 amid an atmosphere of heightened paranoia about threats against law enforcement officers, fear generally whipped up by politicians, and an ongoing barrage of U.S. Department of Homeland Security bulletins which warned about non-specific but speculated terror threats.
Typically, the Homeland Security bulletins say something like this one from June 15, 2016, regarding terrorist threats:
“Though we know of no intelligence that is both specific and credible at this time of a plot by terrorist organizations to attack the homeland, the reality is terrorist-inspired individuals have conducted, or attempted to conduct, attacks in the United States.”
Memphis police took these Homeland Security bulletins about incidents far and near and smeared them across local citizens who had done nothing of the sort. For example, after “sovereign citizens” had murdered two police officers in West Memphis, Arkansas, MPD Homeland Security put out a report about it and attached photos of three local activists – substantially equating them with cop-killing anarchists.
CULTURE OVERCOMES POLICY
It was a classic case of culture vs. policy. Culture wins every time. MPD written policy as well as the court order say, Don’t spy on citizens.
On the fourth day of testimony, private attorneys paid by the city cut their losses and mercifully ended proceedings without calling several persons on its witness list -- including two environmental “activists” whom they had targeted.
Memphis Director of Police Services Mike Rallings had to take the witness stand and said he only had a “vague” idea of what the 1978 court order against spying was about. If Rallings had been following the order – and his own department’s written policy – he would have made sure officers were trained about gathering intelligence on citizens, who had committed no crimes, and that Sgt. Timothy Reynolds never would have created a fake Facebook account, pretending to be “Bob Smith,” a “person of color” and a sympathizer with persons who were mad about police killing unarmed black men.
Despite the beating the city and MPD have been taking, in court and in the court of public opinion, they seem unable to learn. Organized Crime Unit detectives have been cruising the South Memphis community garden which is affiliated with an organization formed by activist and MPD target Keedran Franklin. Franklin was a passenger in a car that got pulled over under some pretense by police on Friday. No citation was issued.
On the first day of the trial, Multi-Agency Gang Unit officers wearing black masks entered and ransacked Antonio Blair’s granny’s and uncle’s houses without showing a warrant. Blair, an organizer with Fight for $15 often at the forefront of public actions, had been named in the City Hall escort list. Blair, ACLU attorney Scott Kramer, and Spencer Kaaz, an activist and subpoenaed witness, were at the courthouse when they heard of the raid, and they drove over.
When an unmarked and possibly non-government car with MGU officers drove away, Kaaz drove himself and Kramer behind them for a while. Soon, Shelby County Sheriff’s officers were following them. When Kaaz stopped for gas, five sheriff’s department cars surrounded them. Although passenger Kramer stated he was an attorney, a deputy ordered Kramer to get out of the car, handcuffed him, and put him in the back of his squad car. The officer who handcuffed Kramer started to drive away — then, perhaps on the signal of a more seasoned officer on the scene, stopped and let Kramer go.
The only complaint expressed to Kaaz came from a Shelby County K-9 officer who said Kaaz’ license plate appeared to have been expired. Kaaz said he had the updated sticker but had not applied it. The officer wrote a citation for that.
(Later it was learned that two warrants, dated three days earlier, existed, but one was seeking a person who had not lived at that address since he was a child, and the other broadly sought “drugs,” Blair said. The net outcome of that search and disruption was a small marijuana roach in an ashtray for which police wrote a citation.)
“This was just intimidation,” Blair said.
JUDGE PAYS ATTENTION
While we do not know how Judge McCalla will rule – one angle the city is working is that the ACLU of Tennessee is not a proper successor to the ACLU in West Tennessee, which was the original plaintiff in 1976 – he clearly was paying attention. Interrupting the city’s defense attorneys, McCalla even personally questioned witnesses Franklin, who said he had been stalked and harassed by the city, and Bruce Kramer, the attorney who filed the original 1976 lawsuit.
Attorney Jennie Silk of the Baker Donelson law firm, retained by the city for its defense, put Kramer on the witness stand, trying to pick at the arcane point of who has standing to sue to enforce the consent decree.
“Knock that off,” McCalla chastised Silk at one point as she stumbled to gain traction in her interrogation of Kramer.
“Learn from that,” McCalla admonished her another time.
“I will learn from that,” Silk told the judge.
The judge interrupted defense attorney Buckner Wellford to directly ask witness Franklin how his family had been affected.
“He (Judge McCalla) made me feel like he really cared what was going on with me,” Franklin said later. “I spoke about how this affects more than me; it’s affecting my family.
“My wife, my mom, my grandma; I can’t see my family like I want to. They’re not calling me because they’re just checking on me. They’re calling me because they’re frightened,” Franklin said.
“I can’t live like that. They are isolating me. Isolating my people…
“Judge McCalla seemed genuine when he asked about it,” Franklin said.
While Franklin has been outspoken about city policies and is known for leading a dawn die-in of about 12 persons on the mayor’s front lawn on Dec. 19, 2016, he also formed Memphis Coalition of Concerned Citizens, which does good works out in the community such as a monthly “Books and Breakfast” wherein children and adults in the community can eat for free, pick out free books, and take part in a program. (On the third Saturday of every month, there is a Books and Breakfast at Westwood Community Center; on the fourth Saturday C-3 assists a Desayuno con Libros for Spanish-speaking families conducted by Communidades Unidas en Un Voz (CUUV).
Affiliated C-3 Land Cooperative, a 501 (c) (3) nonprofit, has acquired vacant lots in blighted neighborhoods and is building gardens, with the support of volunteers and neighbors, who are welcome to the harvest. “Free Movie Challenge” came about on New Year’s Eve 2016 when Franklin and C3 volunteers trekked to Majestic Cinema and bought movie tickets for 63 teenagers.
TO LAUGH OR CRY?
This entire episode has been one of those deals where you don’t know whether to laugh or cry.
Laughable it was that a bespectacled, crew cut-wearing, middle-aged white cop, who said he used investigative techniques he learned working with the Organized Crime Unit, would pretend to be so “down” with political progressives and activists.
It was laughable that the Facebook infiltrator chose the blandest of names, “Bob Smith” – why not Armando or Victor or Rafael? Sgt. Reynolds, aka Bob Smith, drew a laugh in the courtroom on Tuesday when defense attorney Wellford asked him about monitoring on Instagram.
“And how did you get Instagram?” Wellford asked.
“It came with Facebook, I guess,” said Reynolds.
Citizens not only learned through the trial and discovery that police had been making PowerPoint presentations that portrayed activists as dangerous criminals, MPD was forced to reveal how they use a “collator,” a software system to stalk citizens’ social media. Formerly, law enforcement in Memphis and across the country had used Geofedia, which could not only track social media posts but could pinpoint a poster’s location by using Facebook data. After the ACLU railed against Facebook for providing data to law enforcement, Facebook last year pulled the plug on Geofedia’s data. Street Smart, a collator sold by California-based NC4, apparently is now the device of choice for sifting through social media posts in search of certain key words.
Besides the ACLU lawsuit, there is another lawsuit against the city claiming that police took orders from Elvis Presley Enterprises during the August 2016 candlelight vigil to keep black people from entering the Graceland gates.
But now, out of recent revelations, will there be more lawsuits because of the city’s widely reporting of the daily JIBs? The first person from the “black list” who applies to FedEx and gets turned down will be talking to an employment attorney and discussing damages. (We are not an attorney and do not give legal advice.)
Meanwhile, taxpayers are footing the bill for all these blunders — for legal defense of the city for spying on taxpayers; for time and resources police spend obsessing on law-abiding critics as they complain they are under-staffed.
It was telling that city attorneys decided on Thursday not to call several witnesses who had been standing by all week. Things just did not seem to go well for defense lawyers. Besides the judge chastising attorney Silk, Wellford had an awkward moment when the former U.S. attorney for this very court, Mike Cody, called him “Bucky” from the witness stand. Wellford sheepishly advised Cody against such familiarity — “You can’t call me Bucky here” — then Cody apologized and shifted to “Mr. Wellford.”
Just when Franklin and other plaintiff witnesses thought things could not get any more bizarre, Wellford encountered them in the hallway. Franklin said, “What’s up, Buck?”
Wellford shook Franklin’s hand and told him:
“Keedran, don’t take it personal what happened in there yesterday, man,” Franklin recalled. “I really believe in what you’re doing.”
Stunned, Franklin recouped in time to respond as Wellford reached the courtroom:
“Don’t you take it personal either, brother,” said Franklin, “and we started laughing.”
Our earlier related stories:
Who Is John Doe?
‘You’re too late. We burned the documents’
Homeland Security Tracked Social Media before Arresting ICE Demonstrators on MLK50 Week
www.WatchTheWatchersFilm.com
Stories and information from others:
ACLU Releases Timeline and Documents
City of Memphis Releases Documents in ACLU Lawsuit
‘It’s definitely intimidation.’ Guardian story
WREG story on intimidation at homes of activist’s family members
Video: Sheriff follows and handcuffs ACLU attorney who came to scene of masked MPD Gang Unit ransacking 2 homes
Video: Masked Multi-Agency Gang Unit and Organized Crime Unit officers, ransack homes of activist’s relatives
Gary Moore operates Moore Media Strategies as well as the educational nonprofit Citizens Media Resource, and he pens FreeSpeechZone for Daily Kos to get outside the bounds of mainstream media.