MEMPHIS, Tenn. (CN) – The stakes couldn’t be higher for the American Civil Liberties Union of Tennessee and the City of Memphis.
On Monday, lawyers for the two sides began what is expected to be a four-day bench trial over whether the city violated a 1978 consent decree promising that it would not collect political intelligence on its citizens.
Speaking from the witness stand, ACLU of Tennessee Executive Director Hedy Weinberg said there are two cases that sit as crown jewels of the ACLU’s legal work in the Volunteer State: The 1925 Scopes Monkey Trial and the case that created this consent decree.
In September 1976, the then-executive director of the American Civil Liberties Union of Tennessee Inc. and the American Civil Liberties Union in West Tennessee Inc. sued officers of the City of Memphis alleging the Domestic Intelligence Unit, which kept files and conducted surveillance, violated the Constitution.
According to that lawsuit, Eric Carter, a member of the Vietnam Veterans Against the War, asked for the file the city kept on him even though he was not suspected of criminal conduct.
Rather than hand over the documents, the city burned all the records and announced in a press conference that, effective immediately, the Domestic Intelligence Unit of the Memphis Police Department would be disbanded.
Memphis signed a consent decree rather than go to trial. The city wouldn’t admit fault and would agree to keep no records and gather no information on anyone not suspected of committing a crime.
Fast forward to February 2017. Four residents of Memphis sued the city, arguing it had violated the decades-old decree. For example, the city used software called Geofeedia that monitors social media posts and it also created a list of 81 citizens who need an escort when they visit city hall, the complaint said.
The city argued that the consent decree is too narrow. It wasn’t written for the demands of 21st century policing.
“The City maintains the 40-year-old consent decree, which was drafted before the existence of the Internet, security cameras, body cameras, sky cameras, traffic light cameras and smart phones, is woefully outdated and impractical to apply in modern law enforcement,” said Memphis’ Chief Legal Officer Bruce McMullen in a statement.
The decree stipulates that the city cannot record video of protests. According to McMullen, a strict reading of the decree means that when a protest occurs outside city hall, police have to switch off body cameras and the security cameras on the building must go black.
But monitoring social media, McMullen told Courthouse News ahead of the trial, can keep protesters safe because then the police department can deploy the proper resources. He pointed to a post-mortem report of the fatal Charlottesville protest that found an ineffective monitoring of social media before the 2017 protest contributed to the situation.
In opening arguments for the ACLU, attorney Thomas Castelli said the group will explore questions such as: Is the city in contempt of the consent decree by learning about protests through social media? Did the city infiltrate political groups, disseminate false information, photograph protests to chill speech and share political intelligence with third-parties?