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of the Internet, security cameras, body cameras, sky cameras, traffic light cameras and smart phones, is woefully outdated and impractical to apply in modern law enforcement,” said Memphis’ Chief Legal Officer Bruce McMullen in a statement.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?
And although the consent decree is 40 years old, Castelli said that the trial would only look at a “snapshot in time”: The spring of 2015 to the spring of 2017. During that time, several notable protests occurred, including when protesters stopped traffic from crossing the Mississippi River on Interstate 40, protests at an oil refinery, the city zoo and at Graceland.
Meanwhile, Buckner Wellford of the firm Baker, Donelson, Bearman, Caldwell and Berkowitz presented the city’s opening arguments. It would contest issues of standing and throughout the case try to explain the motivations of the city’s police department, which, Wellford said, was to enforce the laws of Tennessee and the local ordinances.
But as Wellford attempted to pull up a copy of the city’s permit ordinance which enumerated what the police director’s duties were when it came to public demonstrations, U.S. District Judge Jon McCalla stopped him.
While the judge said he would give the city some leeway in presenting evidence, “We want to stay focused as much as we can on the decree and what the city did,” the judge said.
Wellford said during July 2016 the city experienced some of the most tumultuous times not seen since the shooting of the Rev. Martin Luther King Jr. at the Lorraine Motel a half century ago. At that time, the Pulse Nightclub Shooting happened and Memphis was trying to maintain safety during its own Gay Pride events.
Around the same time on July 10, the city saw a celebration of Ku Klux Klan founder Nathan Bedford Forrest.
Meanwhile, national events were crystallizing in the city. In 2015, Memphis police shot and killed Darrius Stewart, a 19-year-old black man. Wellford said the city’s police officers grew on edge with the news of police shootings.
During the first day of trial, Sgt. Timothy Reynolds, who worked as a detective in the city’s Office of Homeland Security, took to the stand to explain how the city viewed private Facebook posts and groups through an undercover account. It was primarily operated by Reynolds under the alias “Bob Smith.”
On Oct. 3, 2016, the Bob Smith account indicated that it might attend an event titled “North Memphis Voter Registration.”
Amanda Strickland Floyd, attorney for the ACLU, asked why that event. What was the intent of showing that Bob Smith was interested in a voter registration event?
There was nothing particular about it, Reynolds said, just the intent to seem like the account was active.
The Shelby County Police Department sent out daily joint intelligence briefings. Recipients included people who had email addresses at St. Jude Children’s Research Hospital, the U.S. Navy, a school district and a retired policeman who worked at FedEx.
One briefing noted in a bullet point that Black Lives Matter was holding a community cookout at Pilgrim Rest Baptist Church.
Information for the brief, Reynolds said in his testimony, came from news reports, social media, and information gleamed from the fake account.
But even as police officers take the stand to detail the Memphis Police Department’s activities surrounding protests and Black Lives Matter movement in the city that lies on the bank of the Mississippi, there is a kill switch in the trial that could bring it to a halt; A question of standing.
The original complaint lists one of the plaintiffs as “The American Civil Liberties Union in West Tennessee Inc.”
During cross examination of Weinberg, Memphis’ attorney Jennie Silk attempted to show that the plaintiff in the original case of the 1970 is a wholly separate organization than the ACLU of Tennessee of today. If it is, and if it stopped existing at some point, then the ACLU might not have standing to bring the case.
Before and after the court adjourned for lunch, McCalla made what he admitted was an ironic announcement in a case about taping and filming people: Federal rules prevent the broadcasting of court proceedings. Photographing and taping the proceedings in the courtroom has a chilling effect, McCalla said, because it has “an adverse effect on anybody in terms of testimony.”
The trial continues on Tuesday.