Federal judge orders Memphis police to limit surveillance of activists

Reporting from Memphis —  A federal judge has ordered the Memphis, Tenn., police department to revise its policies and bolster training in a ruling that found the agency had violated a court order prohibiting officers from watching protesters and monitoring their social media accounts.

The American Civil Liberties Union of Tennessee hailed Friday’s ruling by U.S. District Judge Jon McCalla as a victory for free-speech rights. The city acknowledged that the judge believes that “we can do better, and we agree.”

McCalla said in his ruling that the ACLU had presented “clear and convincing” evidence that the city had violated a federal consent decree barring the city from engaging in political surveillance. The 1978 order followed disclosures that police spied on civil rights activists.

The judge’s ruling came in an ACLU-filed lawsuit that claimed the Memphis Police Department engaged in improper surveillance of activists associated with the Black Lives Matter movement and other groups.

Activists testified during an August trial that they were intimidated by members of the police department who kept a close eye on them using several methods, including following their movements and spying on their social media activity.

The judge said in his ruling that there were a “significant number of violations” of the decree.

“In this order, the court does not sanction the city or its officers for discriminating against certain points of view,” McCalla wrote. “For the most part, the officers of MPD have demonstrated their dedication to protecting First Amendment rights regardless of protester opinion. The city, however, must be held responsible for its failure to live up to the high standards it set for itself in 1978.”

To guarantee compliance with the decree, the judge ordered the city to revise regulations and bolster training for officers.

He instructed the city to set guidelines for use of social media searches that comply with the decree. And it should establish a process for approval of investigations into unlawful conduct that “may incidentally result in political intelligence,” he said.

“By successful implementation of the consent decree, MPD has the opportunity to become one of the few, if only, metropolitan police departments in the country with a robust policy for the protection of privacy in the digital age,” the judge said.

ACLU of Tennessee Executive Director Hedy Weinberg said the ruling ensures that activists in Memphis “can continue to fight the good fight without fear of unwarranted police surveillance.”

“Especially in this day and age, being able to truly engage in dialogue about important issues without the threat of intimidation is vital to our democracy,” she said in a news release.

The city said it took steps voluntarily before the trial to make sure the police department followed the 40-year-old court order.

“MPD now has a strict protocol for initiating an investigation that would require an officer to monitor social media platforms — and did so well before this ruling,” city spokeswoman Ursula Madden said in a statement.

Madden said the judge noted in his ruling that the violations appeared to stem from a “shared misunderstanding” of consent decree requirements rather than from political favoritism by police officers.

The judge said there was “clear and convincing” evidence that the police department had conducted “political intelligence” that was forbidden by the consent decree. He said the department had operated the Office of Homeland Security for the purpose of political intelligence, had intercepted electronic communications and infiltrated groups through an undercover Facebook account, failed to familiarize officers with the decree requirements and recorded the identities of protesters for the purpose of maintaining records.

The lawsuit stemmed from protests in Memphis from 2015 to 2017, following the deaths of unarmed black men during confrontations with police in U.S. cities. That included the fatal shooting of 19-year-old Darrius Stewart during a fight with a white police officer at a traffic stop in Memphis in July 2015.

Protesters associated with the Black Lives Matter movement blocked the Interstate 40 bridge connecting Tennessee with Arkansas in July 2016 and rallied at Graceland, Elvis Presley’s former home turned museum, weeks later.