Tag: ACLU

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ACLU Trial Wraps Up, Ruling to Come in September

CREDIT: Brandon Dill

Brandon Dill

Protesters and police officers face off during the 2016 Hernando de Soto bridge protest

Court adjourned Thursday morning in the federal trial over Memphis police surveillance on activists. 

Memphis Police Department (MPD) Major Lambert Ross was the last witness to take the stand in U.S. District Judge Jon McCalla’s courtroom. Ross was the head of the Real Time Crime Center (RTCC) during the time of the alleged police surveillance.

The RTCC houses more than 30 large, high-definition monitors displaying live footage from 1,000 cameras around the city. The footage is monitored by both civilian and commissioned officer analysts who can radio officers when incidents occur, Ross said.

Ross said that the RTCC was never used for political surveillance, but to find out where events were being held and how many people were involved. Precincts were then made aware of any large events that were ongoing in their area.

The RTCC began searching social media in 2014, Ross said. Initially, it was used to assist in solving crimes, but after the 2016 bridge protest, searches related to protests were more common. Specifically, Ross said Black Lives Matter was a recurring search term.

“I’m not going to say we chose that term, but it chose us,” Ross testified. “The event picks the search term.”

When asked if searching social media was ever done to find out if specific people would be involved in an event, Ross said no. Ross said as a black man, he “understands the right to protest” and would never interfere. As his MPD colleagues testified before him, Ross said the motivation for the monitoring was public safety.

The city and the ACLU-TN both rested their cases following Ross’ testimony and are required to submit closing briefs in writing to McCalla by Friday, Sept. 14th. Then, both sides have until Friday, Sept. 24th to respond to the opposing side’s brief.

McCalla will release the ruling after both sides have answered each others’ briefs. After court adjourned, one of the attorney’s for the ACLU-TN, Thomas Castelli, said he hopes that the trial will result in court-ordered independent monitoring of MPD, a change in their policies, and better training as it related to the 1978 consent decree.

Additionally and separately from this case, the city has filed a motion to vacate or modify the decree. The ACLU has until early October to that request.

Bruce McMullen, chief legal officer for the city of Memphis, said the city is asking the court vacate the consent decree “because it’s not really relevant today.” It predates any standard technology that law enforcement uses today, he said.

If the court isn’t willing to completely do away with the decree, McMullen said it should “at least be modified and updated so that it’s applicable to the law enforcement best practices that we use today.”

“I want to emphasize that it’s nothing we’re doing today that 155 other jurisdictions do not do in law enforcement,” McMullen said. “It’s basic law enforcement, from Skycops to body cams, which a lot of citizens supported us getting.”

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Police Official Says Bob Smith Account Friended Over 200 Activists

Day one of the federal trial over Memphis’ police surveillance wrapped up Monday with Sgt. Timothy Reynolds of the Memphis Police Department (MPD) on the stand.

Reynolds, who works in MPD’s Office of Homeland Security, was one of the key personnel responsible for creating and using the undercover social media accounts of Bob Smith.

On the stand, Reynolds admitted to adding more than 200 friends who he said were in connection to protests and other gatherings that could become unlawful.

First created in 2009, the Bob Smith account was intitially used solely for investigations and gang-related crimes, but its use changed over time, Reynolds said. A different and more specific type of intelligence gathering started after the 2016 Pulse nightclub shooting in Orlando, as “we didn’t want a copycat shooter,” he said.

Other evidence revealed the undercover account actively sharing links, commenting on and liking posts, joining and posting in groups, and responding to event requests.

The information gathered through the Bob Smith accounts was then used to monitor the organizers of protests and other community events that MPD thought could be a threat to safety. Many of the events were centered around 19-year-old Darius Stewart, who was killed by an MPD officer in July 2017. Gatherings associated with the Black Lives Matter movement were also closely followed.

However, gatherings like town hall meetings and concerts were also monitored, Reynolds said.

In one email presented to the court, Reynolds’ boss, then-Major Eddie Bass, made Reynolds aware of the “potential for another adverse gathering” planned by organizers of a vigil that Reynolds had previously referred to as “peaceful.”

On another occasion, Reynolds said protesters were trying to “circumvent the permit process,” by planning events in public spaces like libraries where permits aren’t needed.

The plaintiff’s counsel also brought forth emails showing that on multiple occasions MPD shared intelligence on individuals and planned events with organizations outside law enforcement, like Fedex, AutoZone, and Memphis Light, Gas & Water. The information was shared via daily Joint Intelligence Briefing memos.

The plaintiff will resume questioning Reynolds Tuesday morning before the defense begins its cross-examination. After Reynolds, the next witnesses slated to take the stand are Mike Cody, Bruce Kramer, Major Stephen Chandler, and MPD director Michael Rallings.

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Trial on Memphis Activists Surveillance Begins

Arguments began Monday in a trial to determine whether or not the city of Memphis violated activists’ First Amendment rights with a system of surveillance that included extensive monitoring of social media.

U.S. District Judge Jon McCalla will ultimately decide whether or not city leaders violated a 1978 consent decree entered in Kendrick v. Chandler. The order was meant to stop the city from gathering intelligence and surveillance on people engaged in protected free speech activities. Specifically, the decree prohibits political, covert, and electronic surveillance, as well as harassment and intimidation.

Opening arguments on Monday focused on whether or not the American Civilc Liberties Union of Tennessee (ACLU-TN) — as it exists today — was the plaintiff in the 1976 complaint involving Chan Kendrick, an ACLU official at the time.  

Lawyers for the city argued that the ACLU-TN was not a party in the Kendrick complaint, and therefore did not have standing in the present case. They presented close to 20 historical memos to prove that today’s version of ACLU-TN didn’t exist in 1978 and questioned Hedy Weinberg, current executive director of ACLU—TN.

With that, Buckner Wellford, one of the city’s attorney representing the city asked the judge to rule on the ACLU-TN’s standing, a move that could have ended the trial. But McCalla said that’s an issue that should be thoroughly considered before making a decision.

“This is a really important issue to the case,” McCalla said. “It’s more important to get it right than to get it fast.”

Should the judge decide the ACLU has standing, Thomas Castelli, counsel for the ACLU-TN said the other key issues to be decided are:

• Whether the city is in contempt of the 1978 consent decree by learning about protests through social media.

• Whether the city infiltrated activist groups for the purpose of political intelligence.

• Whether photos of protesters were taken for the purposes of political intelligence.

• Whether the city contacted protest organizers to chill their first amendment rights

• Whether the city made the process for obtaining permits for protest harder than for other events.

Castelli said most of plaintiff’s evidence will be from a time period between Spring 2016 and 2017, when protests occurred at the Memphis Zoo, Valero Memphis Refinery, the Hernando de Soto bridge, and Graceland.

Wellford said his team will aim to reveal the motivations of the Memphis Police Department (MPD) and prove there was no ill-intent or attempts to stymie First Amendment rights. In his opening statement, Wellford said MPD’s main motivation for monitoring activists has been to ensure public safety.

“July 2016 was probably the most tumultuous month in Memphis since the assassination of Dr. Martin Luther King in modern times,” Wellford said, citing the bridge protest, the police shooting of Darius Stewart, and other incidents that had occurred around the country.

The threats were “real and tangible,” Wellford said.

McCalla told Wellford that no one disagrees with those facts, but that “they aren’t central issues to the case.”

“Public safety is important, but we can’t lose sight of why we are here,” McCalla said. “The case is about whether or not the city complied with the consent decree.”

As of press time, court was set to resume Monday afternoon. The second witness, MPD Sgt. Timothy Reynolds, was to return to the stand. Reynolds was instrumental in creating the undercover social media account of “Bob Smith,” which was used to monitor the moves of activists.

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Rallings Calls Media Coverage of ACLU Lawsuit “Erroneous”

CREDIT: Brandon Dill

Brandon Dill

Michael Rallings with crowd during protest

In response to news coverage of a recent court ruling saying that Memphis violated a 1978 consent decree by gathering political intelligence on protesters, Michael Rallings, director of the Memphis Police Department (MPD), said Tuesday that some of the language in the reports “does not accurately reflect the department’s activities.”

Specifically, Rallings said the terms “surveillance” and “spying” are “erroneous.”

Rallings also said the city’s goal has been to be transparent about the issues involved in the case, ACLU of Tennessee, Inc vs. City of Memphis.

“In fact the only reason many of the articles were printed in the first place is because we voluntarily unsealed documents and posted them on the city website for the world to see,” Rallings said.

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Set to go to trial Monday, August 20th, the case is the result of a lawsuit against the city for gathering political intelligence on protesters over a two-year period through social media and other mediums. Rallings said he can’t speak at length about ongoing litigation but “feels compelled to explain a few things”:

-The terms “surveillance” and “spying” are “erroneous,” and were never used in the court’s order. “Those words conjure up images of officers in unmarked vans on the street corner listening to tapped phone conversations. This does not accurately reflect MPD’s activities, or its motivation, regarding the monitoring of events which are the subject of this lawsuit.”


-Officers look at social media posts to help us gauge the size and intensity of demonstrations so that we can properly provide for public safety. This is also an effective tool in stopping criminal activity such as sexual predators, domestic violence, stalking, and threats. We also use other technology, such as body cameras, SkyCops, and security cameras in our law enforcement efforts to keep Memphians safe.

-Monitoring of social media posts and the usage of modern technology such as body cameras are considered to be best practices in policing nationwide. Various media reports show that many other cities, such as Boston, Charlotte, Denver, Little Rock, San Jose, and Seattle, use social media monitoring. In the aftermath of last year’s Charlottesville riots that resulted in about 40 casualties, including three deaths, the after-action recommendation said that monitoring social media is crucial to protecting public safety.

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“We feel like we have been complying with the consent decree as it would apply to today’s world,” Rallings said. “We need to be able to read these posts and use them as part of our decisions about how we deploy resources, since we are responsible for the safety of all involved.”

Protest and counterprotest can cause “mayhem and loss of life,” Ralling said, but proper social media monitoring helps the agency prepare and respond to those types of events.

“These tools enabled me to ensure that the 2016 bridge protest was peaceful and without injury,” Rallings said. “Without these tools, I believe that night would have ended very differently We will, however, follow the judge’s order.”

Rallings said if the judge rules in favor of the plaintiff, then the department will “find a way to balance public safety with complying with the manner in which the court interprets the consent decree.”

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Flyer Flashback News

Looking Back at Flyer Story About a “Religious Freedom” Protest in Mississippi.

A young citizen solemnly intones, “I believe if you’re a born-­again Christian, then there should be no issue against prayer.” An aging church patriarch explains that all of this discontent wouldn’t happen if we could only return to “the morals and ethics of the 1950s.” People wear T­-shirts touting “Religious Freedom” and hold signs proclaiming “It’s God’s Way or No Way.”

No, it’s not a story about a Tea Party rally last week. Nor is it the minutes from a meeting of the board of Hobby Lobby. It’s from Chris Herrington’s 1999 Flyer review of a PBS documentary called School Prayer: A Community at War.

In 1994, Lisa Herdahl, a transplanted Californian (naturally), discovered that Christian prayers were being broadcast daily over the intercom at her child’s Pontotoc, Mississippi, public school. Herdahl objected, saying that such compulsory or captive-audience prayers violated her constitutional right to freedom of religion. She was on firm legal ground, of course. But in Pontotoc, she was seen, as one local minister says in the program, as “a lady that’s controlled by Satan, with many demonic spirits.”

The show focused on the battle that ensued in Pontotoc. “Portions of School Prayer play like a live-­action episode of The Simpsons,” Herrington wrote. “Tortured reasoning and inane sound bites adding up to an accidental satire on quintessentially American know­nothingism.”

Nailed it.

The American Civil Liberties Union (ACLU) comes to town to defend Herdahl. They are seen, literally, as agents of Satan. The locals try to a) discern whether the ACLU attorneys are Jewish; b) decide whether Herdahl could possibly be an ACLU plant sent to stir up trouble; c) describe the ACLU as being “to the Christian belief what the Nazi was to the Jew.”

The Simpsons or South Park: Take your pick.

And in a twist that could have been taken from last month’s Mississippi Senate run­off election, this mutual enemy of Christianity brings blacks and whites together to fight Satan and protect the “right” to broadcast Christian prayers in school. For religious freedom.

An African-­American minister, Anthony Collier, says that “the prayer case [brought] Pontotoc together like nothing else had. I don’t recall ever being invited to a white church before this happened.”

The Lord moves in mysterious ways.

The Herndahl case was eventually heard in an Oxford courtroom, where it was decided — not surprisingly — that Pontotoc’s broadcasting of prayers over the intercom was a violation of federal law. Doh.

But, as Herrington concluded: “In Pontotoc, where God is a Republican, Old Glory is waved, and the town leadership (much less the typical high ­school student) lacks an understanding of basic civics … easy solutions are hard to come by. For a small, religiously homogenous community with a deep­seated skepticism toward outsiders, Herdahl’s insistence on a strict legal reading of separation laws amount[ed] to an attack on a whole way of life.”

One can only imagine what the current Supreme Court would do with this case.

Amazingly, 20 years later, the program could probably be replayed as a documentary about a current situation and no one would be the least bit surprised, which is one of the saddest sentences I’ve ever typed.