Concerns raised by the Memphis Police Independent Monitor and aired during a closed-door session with U.S. District Judge Jon McCalla and city of Memphis lawyers last summer apparently led the city to stop taking citizens’ photographs when they entered City Hall.
A transcript of the in-camera meeting in the ACLU v. City of Memphis lawsuit over the city’s violations of the 1978 Kendrick Consent Decree was finally published late Friday afternoon. The city had sought to keep a transcript of the meeting sealed, but Judge McCalla signed an order on Nov. 13, 2019, to unseal the 26-page document. There was a 90-day period in which the transcript could not be published on PACER, the federal court’s filing system, then when it was not automatically available, the court’s deputy clerk unlocked access at our request.
Since we first published a story this morning about the transcript’s contents and discussion of this and other issues, we have heard from citizens that the city no longer takes photos and prints them on name stickers that citizens are required to wear in City Hall. Being a weekend, these reports from our readers were the only way we could confirm the city had changed its ways. Instead of MPD officers staffing the front lobby, Pro-Tech Security Inc. now greets and processes visitors. Pro-Tech was founded by the late Don Lewis, a former Memphis chief of police.
QUESTIONS REMAIN
While citizens, especially those who were targeted on a 2016 political list by the mayor, favor the policy change, a few questions remain:
Where and how are those years of photographs of citizens stored? What use did the city make of them? Who has access to them? What is the city doing with them?
Our original story follows:
How citizens are photographed and identified when they enter Memphis City Hall was a concern heard by U.S. District Judge Jon McCalla during a closed-door meeting with attorneys Aug. 27, 2019.
Citizens entering the City Hall lobby are photographed, required to show their IDs and pass through a metal detector. A sticker is printed out showing the person’s photograph, and the citizen must affix it to his or her clothing.
“The concern is taking a picture,” said court-appointed Independent Monitor Edward Stanton III. “One of the concerns is the chilling effect, and the least intrusive means is the lens that we were looking through.”
MPD KEEPS YOUR PHOTO
Photos of citizens not only are taken each time one enters the City Hall lobby, they are stored in the system which is administered by the Memphis Police Department. One citizen’s experience confirmed the storing of photos and information in the system.
“One time I went in there and told them, ‘Oh, I left my wallet in the car,’” said the citizen, whom we will call “Mr. Jones” and who often attends City Council meetings.
“The officer said, ‘I know you, Mr. Jones,’ and he printed out a sticker with my name and picture on it. They had my picture from the last time I was there. They scan your driver’s license, then you stand where they can take your picture, then you go through the metal detector.”
Glover told Judge McCalla, “For now, we have advised the Monitor of some parts of our security that we’re disabling at City Hall.”
That was six months ago, and we have not determined if the city has changed its lobby guard security system for processing citizens who enter City Hall. City Council meets Tuesday Feb. 18, so that would be a good time to confirm how the lobby security system is operated.
UPDATING (12:15 p.m.)
Since this story appeared, we have heard from citizens who say the city changed the City Hall lobby policy after that meeting in McCalla’s chambers.
”Police no longer man the checkpoint” at City Hall, said one citizen who frequently attends City Council meetings. “They now use a private security firm, and the last time I was there, they did not take a photo.”
That represents progress for citizens’ privacy and freedom of speech — as Stanton told the court, having one’s photo taken and stored could have a “chilling effect.” One question remains: Does the city continue to possess and store those photo files, and if so, what are they doing with them?
BEHIND CLOSED DOORS
The in-camera meeting, which followed the Monitor’s second quarterly status conference presented in open court, was requested by Mark Glover of the Baker Donelson firm, representing the city’s defense. The point of the meeting ostensibly was to address information-sharing boundaries among the FBI, Secret Service and MPD for the upcoming Sept. 9-11 National Public Safety Partnership Symposium in Memphis. Glover said the meeting would be attended by 15 police chiefs among “86 people who are considered VIPs by federal law enforcement officials.”
However, before the City Hall screening subject was entered, Glover complained to McCalla that the Kendrick Decree could hamper the work of the Multi-Agency Gang Unit and could squash the CrimeStoppers program. The city had sought to keep the transcript of the meeting sealed, but McCalla rejected that in a Nov. 13, 2019, order. The transcript remained under seal for 90 days before it was made publicly available on PACER upon our request to the court’s deputy clerk.
The City of Memphis has petitioned the court to modify the Kendrick Decree, claiming it is out of step with modern technology. Judge McCalla ruled in October, 2018, that the city had indeed violated the Kendrick Decree, and he appointed former U.S. Western District Attorney Stanton to serve as Independent Monitor. McCalla has set June 17, 2020, as the beginning of a trial over the city’s petition. McCalla says he expects the proceeding to last three days.
‘WORSE OF THE WORST’
“If you look at 201 Poplar…you have some of the worse of the worst, as you know, individuals. You walk to 201 Poplar, you go through a metal detector,” Stanton said, but there is no photo taken or no requirement to show an ID.
“I’m not sure if, in particular, how we got here, but there is a concern with the list, and there is a concern with maintaining information,” Stanton said. “So, under those circumstances, I think it’s more of we would rather see an approach instead of a wide net of all of this additional information.”
McCalla replied, “They’re certainly not authorized to take photographs of everybody that comes in City Hall.”
The ACLU lawsuit was sparked by the discovery in February, 2017, that the city of Memphis and MPD had complied a so-called “black list”-- or “A-list” of activists – naming persons who “have to be escorted while inside City Hall.” Mayor Jim Strickland signed it and claimed 43 people on the list had been given “no trespass” notices to stay off his personal residence. This followed a Dec. 19, 2016, “die-in” by citizens on the mayor’s front lawn. As it turned out, only one person on the list had received an official notification as required by statute. The list ranged from Mary Stewart, whose unarmed son Darrius was killed by a police officer July 17, 2015; to citizen “activists” who had criticized police and politicians, to citizens who had been recorded by an MPD surveillance van as they bought movie tickets for teens at Majestic Theater on New Year’s Eve 2016. Since the 2016 die-in, a police car, marked or unmarked, and officer post up outside Strickland’s residence almost 24/7.
PHOTO STOP
“The process over the years,” Glover said, “has been that the security mechanism involves when I go in there, there is a photograph, and I put it on so that if employees…who see me in the hallway will know that I’ve gone through security.”
Glover said the city was “suggesting that there be no ID shown,” although there was something of a consensus among Stanton, Judge McCalla and ACLU lawyer Thomas Castelli that merely showing an ID was not a problem. They noted that in the Tennessee Western District Court itself, persons entering must show an ID and pass through a metal detector. No photos are taken, however, and citizens are given no name badge or sticker.
‘DATABASE’ OF CITIZENS
“I think it was the taking of the photographs that certainly heightens everybody’s concern, because that’s something that was a problem,” McCalla said. “I think it’s the accumulation of cataloging…of data…and creating a database.”
McCalla somewhat deferred on further digging into the subject, saying:
“The taking and dissemination of photographs of everybody who comes into a public building is not something that is contemplated under the decree, and we really don’t have to go past that.”
OUR GANG
MPD’s involvement in the Multi-Agency Gang Unit is a source of concern in that other agencies – such as the Shelby County Sheriff’s Office; the FBI, or the Bureau of Alcohol, Tobacco, Firearms and Explosives – may be used as proxies to get around the Kendrick Decree. MPD officers in MGU do not wear body-worn cameras; do not wear badges or name bars, and often they wear ski masks or other types of face coverings. They wear their own shoes instead of uniform shoes. MGU in the field is made up of about 26 MPD officers and 21 sheriff deputies, according to the Memphis Truth Commission blog. Sheriff’s Office Public Information Officer Anthony Buckner says MGU consists of about half MPD and half deputies.
Shelby County District Attorney Amy Weirich is chair of the Multi-Agency Gang Unit.
SOCIAL MEDIA PIONEERS
The Kendrick Decree is unique in America in that it deals with law enforcement gathering political intelligence on otherwise law-abiding citizens. McCalla had said the city has an opportunity to “pioneer” social media policy for law enforcement agencies nationwide.
Monitor team Subject Matter Expert on Social Media Rachel Levinson-Waldman, a DC-based lawyer with the Brennen Center, is probably the leading authority in the U.S. on law enforcement’s use of social media. Her work was cited in Judge McCalla’s ruling against the city of Memphis.
Gary Moore operates Moore Media Strategies, founded nonprofit Citizens Media Resource, makes documentary and narrative films about social justice issues, and writes about First and Fourth Amendment issues as FreeSpeechZone in Daily Kos.