ACLU-TN Comment on Modification of Court Order Limiting Memphis Police Surveillance

MEMPHIS, Tenn. — A federal judge has issued modifications to a 1978 court order that prohibited the Memphis government from monitoring the constitutionally-protected political activities of residents.

The original court order limiting domestic surveillance was issued in the 1978 decision in ACLU-TN’s lawsuit Kendrick v. Chandler. In 2018, the court ruled in Blanchard v. City of Memphis that by engaging in surveillance of the protected political activities of activists, the Memphis police had violated the 1978 court order.

The court ruled that the city failed to train its officers on “political intelligence” as defined and forbidden by the 1978 consent decree. This failure led to a “shared misunderstanding of the Decree’s requirements and a significant number of violations.”

The city subsequently filed motions to revise the 1978 consent decree. After collecting public input on modifying the decree, a lengthy negotiation between the ACLU of Tennessee and the city, and a hearing, Judge Jon Phipps McCalla issued his ruling.

The modifications to the consent decree expand its language to include social media, electronic surveillance, body cameras and other modern technology, while maintaining that the city shall not engage in First-Amendment-related intelligence. While the decree allows the city to view information posted to social media for legitimate law enforcement purposes, such as in the course of a criminal investigation, it clearly states that the city may not create undercover accounts on social media or surveil people exercising their free speech rights for the purpose of First Amendment-related intelligence. The modifications also include restrictions on the use of body-worn and other cameras during protests and assemblies. The court additionally denied the city’s effort to expand sharing of information about individuals’ First Amendment activities among members of interagency task forces, which would have created a loophole to monitor protected free speech activities.

“We are pleased that the modifications ordered today take into account new technology that did not exist when the original court order was drafted decades ago, but still preserve the strength and protections of the original,” said Thomas H. Castelli, ACLU-TN legal director. “The modifications also clarify exactly what the consent decree means, so that everyone – including law enforcement – can fully understand the safeguards it provides. In its previous decision, the court recognized that this consent decree makes Memphis one of the few — if not the only — metropolitan police departments in the country with a robust policy for the protection of privacy in the digital age, and that has not changed.”

ACLU of Tennessee Executive Director Hedy Weinberg had this reaction: “More than forty years ago, the ACLU of Tennessee went to court and successfully challenged police spying on Memphis residents. Our recent, successful lawsuit to once again stop police surveillance of residents illustrates the need for constant vigilance to protect our First Amendment rights. We applaud the court for modifying its order in a way that reinforces that Memphians have the right to engage in political speech without fear of unwarranted police monitoring.”

Blanchard v. City of Memphis was filed on February 22, 2017 in the U.S. District Court for the Western District of Tennessee by Bruce Kramer of Apperson Crump, PLC. The ACLU of Tennessee intervened in the case on March 2, 2017.

Today’s order can be found here at: https://www.aclu-tn.org/wp-content/uploads/2020/09/opinion-and-order.pdf

The modified consent decree can be found at: https://www.aclu-tn.org/wp-content/uploads/2020/09/Modified-Decree.pdf

Case information on Blanchard v. City of Memphis can be found at: http://www.aclu-tn.org/blanchard-et-al-v-city-of-memphis/

Information on Kendrick v. Chandler, the lawsuit that led to the 1978 consent decree, can be found here: http://www.aclu-tn.org/blacklisted-memphis-police-surveillance-and-kendrick-v-chandler-a-timeline/

This statement is available at: https://www.aclu-tn.org/comment-on-modification-of-court-order-limiting-memphis-police-surveillance