Federal Judge Jon McCalla today invited members of the public to provide information about experiences with the Memphis Police Department which they believe may have violated the 1978 Kendrick Consent Decree against spying on citizens.
McCalla thus opened the door for the court-appointed Memphis Independent Monitor to receive complaints regarding the burgeoning outcry over MPD’s use of “Authorization of Agency” statements, which have been used to pre-empt persons critical of everything from the use of excessive force to the Memphis Zoo.
A senior judge in the U.S. Western District of Tennessee, McCalla heard from the Memphis Police Department Independent Monitoring Team, which he ordered to be formed last year as the result of a lawsuit brought by the ACLU of Tennessee. Lawyers from the ACLU and the City of Memphis also appeared at the proceeding. The court heard testimony from two members of the Independent Monitor Team: social media Subject Matter Expert (SME) Rachel Levinson-Waldman and compliance SME David McGriff.
McCalla’s invitation signals that he is open to hearing information from citizens who believe there are ongoing violations, or violations that may have occurred since the time of last year’s ruling and gathering of evidence and testimony.
THE ‘INVITATION’
Memphis Monitor leader Edward Stanton III turned to look back at the rows of courtroom benches. They could have been pews. He saw justice seekers who witnessed at a July 11 Community Forum hosted by the Monitoring Team. He saw equity believers who had stories to tell of police abuses when they later met privately with Stanton and team members. The judge prescribes the limits of the Monitor’s work, Stanton had explained at the community gathering, and the Monitoring Team mostly has been focused on policy and procedure. The audience at Mississippi Boulevard Church was not impressed.
He turned back to the judge and said:
“Two persons from the community want to talk to the court.”
This wasn’t church, and McCalla is not a preacher, but he invited those who wanted to address the court to stand up.
Eight persons rose and then stated their names at McCalla’s request. McCalla determined not to hear citizen statements today, but he invited them to submit information to the court. That invitation also extends to anyone, McCalla indicated, not just those persons present.
The judge seemed to have a cordial affinity for some of those citizens, saying that he knew and recognized several of them. He asked Keedran Franklin, who was a plaintiff in the initial lawsuit, “How are you doing?”
“I’m alive,” Franklin replied.
Others who stood and offered to provide additional information included one other original plaintiff, Paul Garner, coordinator at the Mid-South Peace and Justice Center, as well as Rev. Dr. Earle Fisher, Al Lewis, Rev. Edie Love, Hunter Demster, David Marshall and Barbara Buress.
McCalla cautioned:
“The court can receive anything in writing. Be aware that whatever I receive in that format is public.”
”Everybody gets to be heard,” he had noted earlier.
“We want as much transparency as possible. The degree to which matters can be made public, they will be. That’s the way it works,” McCalla said.
We had encouraged the Independent Monitor following its July Community Forum that it would be a benefit to set up a community liaison team member and an intake path to receive information from the public. In part, we think, it could inform the Monitor’s work as real-time cases could become the substance of hammering out policy. Also, giving citizens a voice is the essence of this case as citizens were adjudged to have been the victims of police and the city.
Citizens would be expected to send any reports, documents, photographs and videos to the monitoring team via its email or mailing address, which are posted below, or directly to the court.
At the request of a citizen who had been critical of police in TV interviews, we provided to the Monitor documentation of an incident in which an MPD officer was driving back and forth in front of the citizen’s home. Our report included video taken by the citizen as well as written documentation we obtained via an open records request which proved that the officer had no official business being there.
AUTHORIZATION OF AGENCY
Citizens contend that the authorization of agency scheme, which is not a court order or an official document, has been abused by MPD and those who wish to shut down critics or to sweep up homeless persons. As an example, Hunter Demster, an activist and frequent video-recorder of police actions, and Fergus Nolan, a researcher and blogger, were banned from Memphis Zoo property – only, nobody bothered to tell them.
Demster and Nolan heard that photographs of them were put up at various entrances to the zoo and its parking lot. This was during an ongoing struggle between supporters of the Overton Park Greensward, who sought to preserve natural space, and the zoo, which wanted to carve out 2.4 acres for a parking lot.
Both were ordered to leave zoo property and put in the back of police cars outside the zoo on Feb. 20, 2018. They were released and not charged, although Demster continued to live-stream from the back seat of a police car while he was in finger-numbing handcuffs.
Last year Shelby County District Attorney Amy Weirich gave her blessing to the use of “authorization of agency” to keep restaurants and businesses in the Cooper-Young area free of homeless persons or others who were unwanted by shop keepers. Thus, businesses who posted “No Trespassing” signs would have met the legal requirement that a person had been given notice not to be on the property. Police then would be free to arrest and charge any such unwanted persons without having to give them a prior warning.
Citizens contend that the use of the authorization of agency, which also may be used, for example, to forbid a disgruntled former employee from returning to a workplace, may violate First (free speech), Fourth (privacy), Fifth (due process) and Fourteenth (equal protection) Amendments to the Constitution. A study by Nolan found that the use of authorization of agency disproportionately targets persons of color.
After the hearing, Levinson-Waldman, who is an attorney for the Brennan Center for Justice in Washington, was besieged by citizens who had stories of authorization of agency abuses and other perceived over-stepping on the part of local law enforcement.
BYE-BYE STINGRAY?
ACLU attorney Thomas Castelli asked McGriff if his pending compliance and audit report “contemplated” addressing software or technology that the police department is using that might be prohibited by the consent decree.
“We can contemplate anything,” said McGriff, somewhat deflecting Castelli’s question and noting that more information is needed from the police department before his compliance and audit report can be completed.
“Currently, MPD does not have a policy on its personnel using social media,” McGriff said. “We are waiting to see that policy.”
After the court proceeding we pressed McGriff on whether such tracking software would come under review by the Monitor. McGriff again referred to his unfinished report, but then said:
“The consent decree already says that police shall not intercept, record, transcribe or otherwise interfere with any communication by means of electronic surveillance for the purpose of political intelligence.”
That would seem to flatly cancel out Stingray and other such software.
MPD has been known to use Geofeedia, Stingray and Street Collator. Geofeedia became obsolete for use by police departments when Facebook in 2017 stated they would no longer make its information available to Geofeedia, which could determine for police a person’s location based on a social media post. Stingray comes in a box and is used to track, interrupt or intercept a cell phone call. The box can be carried inside MPD surveillance vans, which are often seen at First Amendment assemblies. Street Collator tracks social media posts by an algorithm that scans massive amounts of data.
FACEBOOK
Social media expert Levinson-Waldman testified she had met with Facebook policy and legal representatives in Washington, DC, to discuss their policies for dealing with law enforcement requests.
“A Facebook account has to reflect who you actually are,” Levinson-Waldman said. “That not only applies to citizens but to law enforcement. Facebook itself prohibits alias accounts or undercover accounts.”
As discovery from the lawsuit emerged last year, a fake account with the name “Bob Smith,” who used a Guy Fowlkes mask as his profile image, turned out to be MPD Sgt. Timothy Reynolds. Facebook later wrote MPD a letter advising them not to use Facebook for any deceptive accounts. Facebook said it had removed not only the “Bob Smith” account but up to six others it had identified as coming from MPD.
Contact information for the Independent Monitor is:
Edward L. Stanton III
Independent Monitor
Butler Snow LLP
6075 Poplar Ave. Suite 500
Memphis, TN 38119
Email is: monitoringteam@memphispdmonitor.com
Website, which includes reports, documents and filings: www.MemphisPDMonitor.com
The Clifford Davis/Odell Horton Federal Building is located at 167 N. Main, Memphis, TN 38103.
INDEPENDENT MONITOR
After hearing four days of testimony last August, McCalla in October called for an Independent Monitor to be established, having already ruled that the city of Memphis and its police department had violated terms of the 1978 court order by gathering information on persons because of their perceived political views toward the city and police.
The ACLU lawsuit, filed in February, 2017, was sparked by an “authorization of agency” signed by Mayor Jim Strickland on Jan. 4, 2017. The form is headed: “Listing of Persons Barred from Premises.”
Strickland advised the Memphis Police Department that 43 persons had been given notice not to set foot on his property near Poplar and Highland. This followed an early-morning “die-in” by about a dozen persons, having been organized by Franklin and the Coalition of Concerned Citizens, who laid down on Strickland’s lawn Dec. 19, 2016. Thus, the list was dominated by persons who had not been at the mayor’s house and even included some who made the list by being spotted from an MPD surveillance van at a “Free Movie Night” for teens as they bought tickets for teenagers at Malco Majestic. The list also included Mary Stewart, mother of Darrius, an unarmed backseat passenger at a traffic stop who was shot and killed by a Memphis officer July 17, 2015.
”I don’t even know where the mayor lives,” Ms. Stewart told us after she learned she was on the mayor’s list as was her sister.
As it turned out, none of the 43 except Franklin had ever received a “no trespassing” notice as is required by state law before someone can be charged with a trespassing offense.
THE A-LIST
The list, which came to be called the mayor’s “black list” or A-list of activists, was kept at the front desk of City Hall. MPD Lt. Albert Bonner wrote on pages from the list that those persons “Also have to be escorted while in City Hall.”
When Nolan attended a City Council meeting in early February, 2017, Bonner told him he must be escorted whenever he enters City Hall. When quizzed about his presence in a binder at the front desk, Bonner explained it was because he was at the “die-in” at Strickland’s house.
”I wasn’t at the die-in, I told him,” Nolan later recounted. “Then he told me it must have been something I said on social media. Well, I say a lot of things on social media, but that’s free speech, my First Amendment right.”
Nolan then talked to the media, and the “black list” of supposed political opponents was exposed, leading to the ACLU lawsuit.
McCalla scheduled the next appearance by the Monitoring Team and all parties for 10:30 a.m., Nov. 21.
Here is The Commercial Appeal’s story from the meeting.
Gary Moore operates Moore Media Strategies, founded Citizens Media Resource nonprofit, makes films about social justice issues and covers First Amendment issues for Daily Kos as FreeSpeechZone.