Tag: Jon McCalla

Categories
News News Blog

Hearing to Modify Consent Decree on Police Surveillance Set for June


The city will get to make its case for modifying the 1978 consent decree prohibiting 

police surveillance in June.

Earlier this month, U.S. District Judge Jon McCalla denied the city’s motion to immediately “significantly modify” the 1978 Kendrick Consent Decree. The city argued that the decree prohibits the Memphis Police Department (MPD) from “using other agencies or persons as ‘surrogates’ to do indirectly what it could not do directly,” preventing coordination between law enforcement agencies.

But McCalla denied the request, saying that because all parties have not agreed to the modification of the consent decree, there would have to be an evidentiary hearing before the court could make a ruling.

Thursday McCalla said an evidentiary trial hearing on that matter is set preliminary for June 17th. Then, the court will review all of the information it’s received and make a decision on if the consent decree should be modified and if so, what changes should be made.

The team appointed to ensure and monitor MPD’s compliance to the consent decree gave its third progress update to the court Thursday.

At Thursday’s hearing, Rachel Levinson-Waldman, the monitoring team’s social media and public policy expert, discussed the social media policies for federal agencies. Levinson-Waldman said the FBI and IRS are the only two agencies that use social media for investigative purposes and have a publicly available policy.

The FBI guidelines allows for collecting First-Amendment-protected information only if its related to an authorized investigation. The collection will not interfere with the individual’s Constitutionally protected rights, and if the method of investigation is the “least intrusive alternative.”

Levinson-Waldman said that these guidelines mirror language in the 1978 Consent Decree.

Generally, the FBI guidelines allow for more intrusive investigative methods as the level of the investigated increases.

One key piece of the FBI guideline Levinson-Waldman noted is that during an inquiry, unless related to federal crimes or national security, the agency is allowed to search and review public social media accounts, but is prohibited from using fictitious personas or engage in undercover activity.

MPD’s use of the undercover Facebook account of Bob Smith was one of the violations noted in McCalla’s ruling last fall. The account friended more than 200 activists.

One of the takeaways from Thursday’s hearing for local activist Hunter Demster is that there aren’t many clear, outlined policies nationally of local and federal law enforcement agency’s social media use.

“From the get-go, a lot of us have said that is going to be one of the most important elements that comes out of this entire process,” Demster said. I think we have an opportunity to set the standard for the rest of the country. I think it’s important to look at what other federal and local departments have done, but I think we need to pave a new path forward. At the center needs to be people and their civil rights, not necessarily public safety.”

The monitoring team and the city were given until Tuesday, November 26th to submit the most recent draft of the new MPD social media policies and training procedures, as well as an audit and compliance plan to the court.

The monitor team is looking to hold focus groups early next year. Dr. Sheila Peters, an associate professor of physiology at Fisk University will lead those groups. McCalla said this is an important piece of the process as “everyone is entitled to be heard.”

Attorneys for city questioned if the discussions from the focus group will be used for evidentiary purposes. McCalla said the discussions won’t be evidence but “important input.” The groups will create space for the public to bring new concerns to the table and gather public sentiment, he said.

Categories
News News Blog

Judge Denies City’s Request to Modify Decree on Police Surveillance

CREDIT: Brandon Dill

Brandon Dill

Michael Rallings with crowd during protest

The city’s motion to immediately modify the 1978 consent decree prohibiting police surveillance was denied this week by a federal judge.

Last year, U.S. District Judge Jon McCalla ruled that the Memphis Police Department (MPD) violated the decree by participating in political surveillance on activists here.

In September, the city filed a sealed motion with the court to “significantly modify” the 1978 Kendrick consent decree. The city argued that the decree “unduly burdens legitimate investigative activities and creates restrictions that are unnecessary for the protection of First Amendment rights,” according to recently unsealed court documents.

The city said the consent decree prohibits MPD from “using other agencies or persons as ‘surrogates’ to do indirectly what it could not do directly,” preventing coordination between law enforcement agencies.

Specifically, the city said the consent decree has a “detrimental effect” on the city’s participation in the Joint Terrorism Task Force, the Tennessee Fusion Center, the Multi-Agency Gang Unit, and CrimeStoppers. It also prevents sharing and receiving intelligence with federal agencies and the Shelby County Sheriff’s Department, the city said.

[pullquote-1]

The city also argues that assuring compliance with the consent decree and its “restrictions that go well beyond that which is required by federal law” requires the city to “expend scarce resources.”

The modified decree that the city requested would allow the use of political intelligence gathered by third parties.

McCalla denied the city’s motion, writing that modifying the decree in that way would “eviscerate the core goals of the Kendrick consent decree.”

Continuing, McCalla said any modification to the decree would need to be “carefully crafted after a thorough review of evidence and a finding of sufficiently changed circumstances compel a modification.”

“A change would need to achieve the goals of the Kendrick Consent Decree while providing the city and the MPD flexibility to engage in the sharing of information for legitimate law enforcement purposes,” McCalla wrote.

McCalla notes that because all parties have not agreed to the modification of the consent decree, there would have to be an evidentiary hearing before the court could make a ruling.

A telephone conference call between all parties is scheduled for January 2nd to discuss the possibility of scheduling an evidentiary hearing on the city’s requests to modify the decree.

Ahead of that meeting, the team appointed to monitor MPD’s adherence to the consent decree will present its quarterly progress to the court on Thursday, November 21st. The hearing will take place at 9:30 a.m. at the Clifford Davis-Odell Horton Federal Building.

Read McCalla’s full decision below.

[pdf-1]

Categories
News News Blog

Monitor in Police Spying Case to Seek Feedback at Community Forum

CREDIT: Brandon Dill

Brandon Dill

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


The team appointed to monitor the Memphis Police Department’s (MPD) compliance to a federal judge’s ruling on police surveillance wants to hear from the community at a public forum this Thursday.

After the American Civil Liberties Union (ACLU) of Tennessee won a lawsuit against the city on behalf of Memphis activists last year, U.S. District Judge Jon McCalla appointed former U.S. Attorney Ed Stanton of the Butler Snow Law Firm to lead the independent group tasked with monitoring MPD’s progress and adherence to the court’s orders.

The question at hand during the August trial: Did MPD violate the 1978 Kendrick Consent Decree which prohibits political surveillance and interference of an individual’s First Amendment rights? McCalla ruled that MPD did violate that decree by actively pursuing covert surveillance of four local activists.

The city violated several areas of the consent agreement, McCalla ruled, including: intercepting phone calls and electronic communications, using a fake Facebook profile of “Bob Smith” to learn of activists’ activities, and failing to properly inform officers of the parameters of the 1978 ruling.

✖ Thursday’s meeting will take place at Mississippi Boulevard Christian Church in Midtown from 6-7:30 p.m. click to tweet

Now, in an effort to “encourage transparent dialogue,” the monitoring team will hold a series of community meetings to share updates on the group’s work and to allow the community to give feedback on the city’s efforts to comply with the 1978 consent decree.

Thursday’s meeting will take place at Mississippi Boulevard Christian Church in Midtown from 6 p.m.-7:30 p.m. Attendees will have the opportunity to ask the team questions and learn more about MPD’s progress with compliance. Representatives of the ACLU will also be at the meeting to answer questions.

A second public forum is tentatively slated for the fall. The monitoring team also launched a website this month to keep the public informed on the group’s efforts. 


Apart from appointing the monitoring team, McCalla also ordered MPD to revise its policy on political surveillance, train officers on the decree, establish a process for criminal investigations that may result in political intelligence, establish written guidelines for using social media searches, maintain a list of those searches, and submit that list to the court four times a year.

On August 27th, the monitoring team will return to McCalla’s courtroom to give a 90-day progress report. At an April hearing, McCalla said he would like to have a draft of MPD’s revised information-gathering policy by the August court date.