APPEAL,LR16.2 TR4
U.S. District Court Western District of Tennessee (Memphis) CIVIL DOCKET FOR CASE #: 2:17-cv-02120-JPM-jay

Blanchard et al v. City Of Memphis, Tennessee

Date Filed: 02/22/2017

Assigned to: Judge Jon Phipps McCalla

Date Terminated: 09/21/2020

Referred to: Magistrate Judge Jon A. York

Jury Demand: Plaintiff

Case in other court: Sixth Circuit COA, 17-05868

Nature of Suit: 440 Civil Rights:

United States Court of Appeals, 20- Other

06211

Jurisdiction: Federal Question

United States Court of Appeals, 20-

06263

Cause: 28:1983 Civil Rights

Miscellaneous
Edward L. Stanton, III BUTLER SNOW 6075 Poplar Ave 5th Floor Memphis, TN 38119 Monitor

represented by Edward L. Stanton , III BUTLER SNOW LLP 6075 Poplar Avenue Suite 500 Memphis, TN 3119 901-680-7369 Email: edward.stanton@butlersnow.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gadson William Perry BUTLER SNOW LLP Crescent Center 6075 Poplar Avenue 5th Floor Memphis, TN 38119 901-495-1299 Email: will.perry@butlersnow.com ATTORNEY TO BE NOTICED

Plaintiff
Elaine Blanchard TERMINATED: 06/30/2017

represented by Jacob Webster Brown APPERSON CRUMP, PIC 6000 Poplar Avenue Suite 150 Memphis, TN 38119

Plaintiff
Keedran Franklin TERMINATED: 06/30/2017

901-271-2711 Email: jbrown@appersoncrump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Herman Morris ADAMS AND REESE LLP 6075 Poplar Avenue Ste 700 Memphis, TN 38119 901-524-5281 Fax: 901-524-5381 Email: patrick.morris@arlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott A. Kramer BOROD & KRAMER 80 Monroe Ave. Ste. G1 Memphis, TN 38103 901-524-0200 Email: skramer@appersoncrump.com (Inactive) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce S. Kramer APPERSON CRUMP PLC 6000 Poplar Avenue Suite 150 Memphis, TN 38119 901-756-6300 Fax: 901-757-1296 Email: bkramer@appersoncrump.com ATTORNEY TO BE NOTICED
represented by Jacob Webster Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Herman Morris (See above for address) LEAD ATTORNEY

Plaintiff Paul Garner TERMINATED: 06/30/2017
Plaintiff Bradley Watkins TERMINATED: 06/30/2017

ATTORNEY TO BE NOTICED
Scott A. Kramer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce S. Kramer (See above for address) ATTORNEY TO BE NOTICED
represented by Jacob Webster Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Herman Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott A. Kramer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce S. Kramer (See above for address) ATTORNEY TO BE NOTICED
represented by Jacob Webster Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Herman Morris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott A. Kramer (See above for address) LEAD ATTORNEY

V. Intervenor Plaintiff ACLU of Tennessee, Inc.
V. Defendant

ATTORNEY TO BE NOTICED
Bruce S. Kramer (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Hauser Castelli AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TENNESSEE 210 25th Avenue N. Suite 1000 P.O. Box 120160 Nashville, TN 37212 615-320-7142 X303 Email: tcastelli@aclu-tn.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda Strickland Floyd BONE MCALLESTER NORTON PLLC 511 Union Street Suite 1600 Nashville, TN 37219 615-238-6302 Fax: 615-687-8302 Email: mfloyd@bonelaw.com ATTORNEY TO BE NOTICED
Stella Marie Yarbrough AMERICAN CIVIL LIBERTIES UNION OF TENNESSEE P.O. Box 120160 Nashville, TN 37212 602-908-1987 Email: syarbrough@aclu-tn.org ATTORNEY TO BE NOTICED

City of Memphis, Tennessee

represented by Bruce McMullen BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. Chief Legal Officer 165 Madison Ave. Ste 2000 Memphis, TN 38103 901-577-2356 Fax: 901-577-2303 Email: bmcmullen@bakerdonelson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Buckner Wellford BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ First Tennessee Bank Building 165 Madison Ave. Ste. 2000 Memphis, TN 38103 901-526-2000 Fax: 901-577-4204 Email: bwellford@bakerdonelson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence Laurenzi BURCH PORTER & JOHNSON, PLLC 130 North Court Avenue Memphis, TN 38103 901-524-5156 Fax: 901-524-5024 Email: llaurenzi@bpjlaw.com TERMINATED: 11/25/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennie Vee Silk BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC 165 Madison Ave. Ste. 2000 Memphis, TN 38103 901-577-8212 Email: jsilk@bakerdonelson.com ATTORNEY TO BE NOTICED

Mary Wu Tullis BAKER DONELSON BEARMAN CALDWELL & BERKOWITZMemphis 165 Madison Ave Ste 2000 Memphis, TN 38103 901-577-8180 Fax: 901-577-0746 Email: mtullis@bakerdonelson.com ATTORNEY TO BE NOTICED
R. Mark Glover BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC Email: mglover@bakerdonelson.com ATTORNEY TO BE NOTICED
Thomas L. Parker BAKER DONELSON 165 Madison Avenue Suite 2000 Memphis, TN 38103 901-577-2179 Fax: 901-577-4248 Email: tommyparker@bakerdonelson.com TERMINATED: 02/01/2018 ATTORNEY TO BE NOTICED

Date Filed 02/22/2017
02/22/2017 02/22/2017

# Docket Text
1 COMPLAINT for Enforcement of Order, Judgment and Decree, Damages and Other Relief against City Of Memphis, Tennessee (Filing fee $ 400 receipt number 0651-2495147), filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 - Consent Decree, # 2 Exhibit 2 - MPD "Black List", # 3 Civil Cover Sheet, # 4 Summons)(Kramer, Bruce) (Entered: 02/22/2017)
2 Judge Jon Phipps McCalla and Chief Magistrate Judge Diane K. Vescovo added. (jld) (Entered: 02/22/2017)
3 NOTICE OF CASE TRACKING ASSIGNMENT PURSUANT TO LOCAL RULE 16.2: Pursuant to Local Rule 16.2, this case has been

02/22/2017 02/22/2017
02/22/2017 02/25/2017 03/01/2017 03/01/2017

assigned to the Standard track. http://www.tnwd.uscourts.gov/pdf/content/LocalRules.pdf (jld) (Entered: 02/22/2017)
4 NOTICE TO COMPLY WITH PLAN FOR ALTERNATE DISPUTE RESOLUTION (ADR): Pursuant to Section to 2.1 of the ADR Plan, all civil cases filed on or after Sept. 1, 2014, shall be referred automatically for ADR. For compliance requirements, refer to the ADR Plan at: http://www.tnwd.uscourts.gov/pdf/content/ADRPlan.pdf (jld) (Entered: 02/22/2017)
5 NOTICE OF RIGHT TO CONSENT TO THE EXERCISE OF CIVIL JURISDICTION BY A MAGISTRATE JUDGE Pursuant to 28 U.S.C. 636(c), Fed.R.Civ.P.73, and Local Rule 72.1, this Court has designated the Magistrate Judges of this District to conduct trials and otherwise dispose of any civil case that is filed in this Court. Your decision to consent, or not consent, to the referral of your case to a United States Magistrate Judge for trial and entry of a final judgment must be entirely voluntary. The judge or magistrate judge to whom the case has been assigned will not be informed of your decision unless all parties agree that the case may be referred to a magistrate judge for these specific purposes. A less than unanimous decision will not be communicated by this office to either the judge or magistrate judge. The consent form is available on the courts website at https://www.tnwd.uscourts.gov/forms-and-applications.php (jld) (Entered: 02/22/2017)
6 Summons Issued as to City Of Memphis, Tennessee. The filer has been notified electronically that the summons has been issued, and the new docket entry reflects this. Upon notification of the new docket entry, the filer is to print the issued summons in order to effect service. (jld) (Entered: 02/22/2017)
7 AFFIDAVIT of Service for Summons & Complaint served on City of Memphis on February 23, 2017, filed by Elaine Blanchard, Keedran Franklin, Paul Garner, Bradley Watkins. (Kramer, Bruce) (Entered: 02/25/2017)
8 MOTION to Dismiss by City Of Memphis, Tennessee. (Wellford, Buckner) (Entered: 03/01/2017)
9 ATTACHMENT Memorandum of Law in Support to 8 MOTION to Dismiss by City Of Memphis, Tennessee.. (Attachments: # 1 Exhibit A - Kendrick Consent Order, # 2 Exhibit B - Little v. Shelby County Consent Order, # 3 Exhibit C - Little v. Shelby County Docket Report)(Wellford, Buckner) (Entered: 03/01/2017)

03/02/2017 03/02/2017 03/02/2017
03/02/2017 03/02/2017 03/02/2017 03/03/2017 03/03/2017 03/07/2017 03/07/2017 03/08/2017 03/08/2017 03/08/2017

10 SETTING LETTER: Telephonic Scheduling Conference set for Tuesday, 3/28/2017 at 2:30 PM before Judge Jon Phipps McCalla. (btg) (Entered: 03/02/2017)
11 NOTICE of Appearance by Thomas L. Parker on behalf of City Of Memphis, Tennessee (Parker, Thomas) (Entered: 03/02/2017)
12 MOTION to Intervene Proposed Order Submitted by ACLU of Tennessee, Inc.. (Attachments: # 1 Memorandum in Support of Motion to Intervene, # 2 Exhibit A, # 3 Exhibit B)(Castelli, Thomas) (Entered: 03/02/2017)
13 NOTICE of Appearance by Jennie Vee Silk on behalf of All Defendants (Silk, Jennie) (Entered: 03/02/2017)
14 ANSWER to 1 Complaint, by City Of Memphis, Tennessee. (Attachments: # 1 Exhibit 1 - Policy And Procedures)(Parker, Thomas) (Entered: 03/02/2017)
15 ORDER granting 12 Motion to Intervene. Signed by Judge Jon Phipps McCalla on 3/2/17. (McCalla, Jon) (Entered: 03/02/2017)
16 Intervenor COMPLAINT , filed by ACLU of Tennessee, Inc..(Castelli, Thomas) (Entered: 03/03/2017)
17 NOTICE by City Of Memphis, Tennessee of Filing of Motion in Related Case (Attachments: # 1 Exhibit A- Motion to Transfer Related Case)(Parker, Thomas) (Entered: 03/03/2017)
18 MOTION to Reschedule Telephonic Scheduling Conference by All Plaintiffs. (Kramer, Bruce) (Entered: 03/07/2017)
19 MOTION to Bifurcate Proposed Order Submitted by All Defendants. (Attachments: # 1 Memorandum in Support of Motion to Bifurcate and Stay or Limit Discovery)(Wellford, Buckner) (Entered: 03/07/2017)
20 ORDER granting 18 Motion to reschedule telephonic scheduling conference. Signed by Judge Jon Phipps McCalla on 3/8/17. (McCalla, Jon) (Entered: 03/08/2017)
21 SETTING LETTER: Telephonic Scheduling Conference reset to Tuesday, 4/4/2017 at 10:45 AM before Judge Jon Phipps McCalla. (btg) (Entered: 03/08/2017)
22 MOTION to Dismiss Complaint of Intervening Plaintiff, ACLU of Tennessee by All Defendants. (Attachments: # 1 Memorandum in Support of Motion to Dismiss Complaint of Intervening Plaintiff, ACLU of Tennessee, Inc., # 2 Exhibit A to Memorandum - WTCLU

03/09/2017 03/15/2017
03/21/2017 03/21/2017 03/29/2017 03/31/2017 03/31/2017 04/03/2017 04/04/2017 04/04/2017

Filing Information, # 3 Exhibit B - ACLU of Tennessee Filing Information, # 4 Exhibit C - Affidavit of Jennie Silk)(Wellford, Buckner) (Entered: 03/08/2017)
23 NOTICE of Appearance by Scott A. Kramer on behalf of All Plaintiffs (Kramer, Scott) (Entered: 03/09/2017)
Magistrate Judge Edward G. Bryant added. Chief Magistrate Judge Diane K. Vescovo no longer assigned to case per 2017 Judicial Retreat Decision to Reallocate the Magistrate Judge Civil Caseload. (jae) (Entered: 03/15/2017)
24 RESPONSE to Motion re 19 MOTION to Bifurcate Proposed Order Submitted Proposed Order Submitted filed by ACLU of Tennessee, Inc.. (Castelli, Thomas) (Entered: 03/21/2017)
25 RESPONSE to Motion re 19 MOTION to Bifurcate Proposed Order Submitted (Proposed Order Submitted) filed by All Plaintiffs. (Kramer, Bruce) (Entered: 03/21/2017)
26 RESPONSE to Motion re 8 MOTION to Dismiss filed by All Plaintiffs. (Kramer, Bruce) (Entered: 03/29/2017)
27 ORDER denying 19 Motion to Bifurcate. Signed by Judge Jon Phipps McCalla on 3/31/17. (McCalla, Jon) (Entered: 03/31/2017)
28 REPORT of Rule 26(f) Planning Meeting . (Attachments: # 1 Exhibit 1 - Stipulation on ESI Searching, # 2 Exhibit Ex to Stipulation on ESI Searching - Schedule A)(Parker, Thomas) (Entered: 03/31/2017)
29 REPLY to Response to Motion re 26 Response to Motion to Dismiss filed by City Of Memphis, Tennessee. (Parker, Thomas) (Entered: 04/03/2017)
30 NOTICE of Appearance by Patrick Herman Morris on behalf of All Plaintiffs (Morris, Patrick) (Entered: 04/04/2017)
31 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Telephonic Scheduling Conference held on 4/4/2017. Bruce Kramer, Scott Kramer, Patrick Herman Morris, & Thomas Hauser Castelli appearing for the Plaintiff. Buckner Wellford, Jennie Vee Silk, & Thomas L. Parker appearing for the Defense. Plaintiff anticipates filing a motion to join parties. Pending Motions to Dismiss will be ruled on by the Court by separate order. Non-Jury Trial set for Monday, 5/7/2018 at 9:30 AM in Courtroom 1 - Memphis before Judge Jon Phipps McCalla. Trial is anticipated to last 5 days. Pretrial Conference set for Friday, 4/27/2018 at 9:30 AM in Courtroom 1 - Memphis before

04/04/2017 04/05/2017
04/10/2017 04/10/2017 06/06/2017
06/09/2017 06/16/2017 06/23/2017

Judge Jon Phipps McCalla. Proposed Pretrial Order due by 4:30 PM on 4/20/2018. Parties may file a motion for a status conference if deemed necessary. Scheduling order to be entered. (Court Reporter: Karla Seely, Alpha Reporting) (btg) (Entered: 04/04/2017)
32 SETTING LETTER: Non-Jury Trial set for Monday, 5/7/2018 at 9:30 AM in Courtroom 1 - Memphis before Judge Jon Phipps McCalla. Pretrial Conference set for Friday, 4/27/2018 at 9:30 AM in Courtroom 1 - Memphis before Judge Jon Phipps McCalla. Proposed Pretrial Order due by 4:30 PM on 4/20/2018. (btg) (Entered: 04/04/2017)
33 RESPONSE to Motion re 22 MOTION to Dismiss Complaint of Intervening Plaintiff, ACLU of Tennessee filed by ACLU of Tennessee, Inc.. (Attachments: # 1 Exhibit Kendrick Complaint, # 2 Exhibit Order, Judgment and Decree, # 3 Affidavit Eric Sirignano, # 4 Exhibit ACLUTN Charter, # 5 Affidavit Sarah Abbott, # 6 Exhibit West Tennessee Civil Liberties Union Documents, # 7 Exhibit ACLU-TN By-Laws, # 8 Exhibit 1973 By-Laws, # 9 Exhibit Board Minutes)(Castelli, Thomas) (Entered: 04/05/2017)
34 SCHEDULING ORDER. Signed by Judge Jon Phipps McCalla on 4/10/17. (McCalla, Jon) (Entered: 04/10/2017)
35 REPLY to Response to Motion re 33 Response to Motion,, filed by City Of Memphis, Tennessee. (Attachments: # 1 Exhibit Affidavit of Buckner Wellford)(Wellford, Buckner) (Entered: 04/10/2017)
36 MEMORANDUM in Support re 22 MOTION to Dismiss Complaint of Intervening Plaintiff, ACLU of Tennessee Supplemental Memorandum of Law in Support of Motion To Dismiss filed by City Of Memphis, Tennessee. (Attachments: # 1 Exhibit 1- Joint Affidavit, # 2 Exhibit 2Letter Spence, # 3 Exhibit 3- Letter Pickering, # 4 Exhibit 4- Notice, # 5 Exhibit 5- Affiliates List)(Silk, Jennie) (Entered: 06/06/2017)
37 RESPONSE in Opposition re 22 MOTION to Dismiss Complaint of Intervening Plaintiff, ACLU of Tennessee Response to Supplemental Memorandum of Law in Support of Motion To Dismiss filed by ACLU of Tennessee, Inc.. (Castelli, Thomas) (Entered: 06/09/2017)
38 MOTION for Oral Argument on the Issue of ACLU of Tennessee, Inc.'s Standing and Memo in Support (Proposed Order Sumitted) by City Of Memphis, Tennessee. (Parker, Thomas) (Entered: 06/16/2017)
39 RESPONSE to Motion re 38 MOTION for Oral Argument on the Issue of ACLU of Tennessee, Inc.'s Standing and Memo in Support (Proposed Order Sumitted) filed by ACLU of Tennessee, Inc.. (Castelli, Thomas) (Entered: 06/23/2017)

06/26/2017 06/30/2017 07/14/2017 07/17/2017 07/21/2017 07/21/2017 07/25/2017 07/28/2017 08/01/2017
09/11/2017 09/22/2017

40 REPLY to Response to Motion re 39 Response to Motion for Oral Argument on the Issue of ACLU of Tennessee, Inc.'s Standing filed by City Of Memphis, Tennessee. (Wellford, Buckner) (Entered: 06/26/2017)
41 ORDER denying 38 Motion as Moot; granting 8 Motion to Dismiss; denying 22 Motion to Dismiss. Signed by Judge Jon Phipps McCalla on 6/30/17. (McCalla, Jon) (Entered: 06/30/2017)
42 Consent MOTION for Extension of Time to File Answer re 16 Intervenor Complaint or Otherwise Plead, proposed order submitted, by City Of Memphis, Tennessee. (Parker, Thomas) (Entered: 07/14/2017)
43 ORDER granting 42 Motion for Extension of Time to Answer All Defendants.. Signed by Judge Jon Phipps McCalla on 7/17/17. (McCalla, Jon) (Entered: 07/17/2017)
44 ANSWER to 16 Intervenor Complaint by City Of Memphis, Tennessee.(Wellford, Buckner) (Entered: 07/21/2017)
45 NOTICE by City Of Memphis, Tennessee of Service of Rule 26 Disclosures (Wellford, Buckner) (Entered: 07/21/2017)
46 NOTICE by City Of Memphis, Tennessee of Service of Supplemental Initial Disclosures (Wellford, Buckner) (Entered: 07/25/2017)
47 NOTICE OF APPEAL as to 41 Order on Motion for Miscellaneous Relief, Order on Motion to Dismiss, by Elaine Blanchard, Keedran Franklin, Paul Garner, Bradley Watkins. Filing fee $ 505, receipt number 0651-2596842. (Kramer, Bruce) (Entered: 07/28/2017)
48 USCA Case Number 17-5868 for 47 Notice of Appeal filed by Elaine Blanchard, Paul Garner, Keedran Franklin, Bradley Watkins.Civil Case Docketed. Notice filed by Appellants Elaine Blanchard, Keedran Franklin, Paul Garner and Bradley Watkins. Transcript needed: y. (jrs) (Entered: 08/01/2017)
49 MOTION for Entry of Judgment under Rule 54(b) by All Plaintiffs. (Attachments: # 1 Memorandum in Support of Motion for Rule 54(b) Certfication)(Kramer, Bruce) (Entered: 09/11/2017)
50 RESPONSE to Motion re 49 MOTION for Entry of Judgment under Rule 54(b) Certification filed by City Of Memphis, Tennessee. (Parker, Thomas) (Entered: 09/22/2017)

09/28/2017 10/02/2017 10/26/2017 10/27/2017 10/27/2017 10/27/2017 11/01/2017 11/02/2017
11/02/2017
11/02/2017

51 Joint MOTION for Protective Order Proposed Order Submitted by City Of Memphis, Tennessee. (Attachments: # 1 Exhibit Proposed Protective Order)(Silk, Jennie) (Entered: 09/28/2017)
52 PROTECTIVE ORDER re 51 Motion for Protective Order. Signed by Judge Jon Phipps McCalla on 10/2/2017. (McCalla, Jon) (Entered: 10/02/2017)
53 Joint MOTION for Status Conference by City Of Memphis, Tennessee. (Parker, Thomas) (Entered: 10/26/2017)
54 SETTING LETTER: Telephonic Status Conference set for Thursday, 11/2/2017 at 11:30 AM before Judge Jon Phipps McCalla. (btg) (Entered: 10/27/2017)
55 ORDER granting 53 Motion for Status Conference. **[TEXT-ONLY ORDER. NO IMAGE ASSOCIATED.] Signed by Judge Jon Phipps McCalla on 10/27/2017. (McCalla, Jon) (Entered: 10/27/2017)
56 ORDER ON SCHEDULING CONFERENCE. Signed by Judge Jon Phipps McCalla on 10/27/2017. (McCalla, Jon) (Entered: 10/27/2017)
57 ORDER DENYING 49 Motion for Rule 54(b) Certification. Signed by Judge Jon Phipps McCalla on 11/1/2017. (McCalla, Jon) (Entered: 11/01/2017)
58 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Telephonic Status Conference held on 11/2/2017. Thomas Hauser Castelli appearing for the Intervener Plaintiff. Buckner Wellford, Jennie Vee Silk, and Thomas L. Parker appearing for the Defense. New deadlines set by the Court. Non-Jury Trial reset for Monday, 8/13/2018 at 9:30 AM in Courtroom 1 - Memphis before Judge Jon Phipps McCalla. Pretrial Conference reset for Friday, 8/3/2018 at 10:30 AM in Courtroom 1 - Memphis before Judge Jon Phipps McCalla. Proposed Pretrial Order due by 4:30 PM on 7/27/2018. Amended scheduling order to be entered. (Court Reporter: Valerie Gilliam, Alpha Reporting) (btg) (Entered: 11/02/2017)
59 SETTING LETTER: Non-Jury Trial reset for Monday, 8/13/2018 at 9:30 AM in Courtroom 1 - Memphis before Judge Jon Phipps McCalla. Pretrial Conference reset for Friday, 8/3/2018 at 10:30 AM in Courtroom 1 - Memphis before Judge Jon Phipps McCalla. Proposed Pretrial Order due by 4:30 PM on 7/27/2018. (btg) (Entered: 11/02/2017)
60 AMENDED SCHEDULING ORDER. Signed by Judge Jon Phipps McCalla on 11/2/2017. (McCalla, Jon) (Entered: 11/02/2017)

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02/28/2018 03/02/2018
03/15/2018 04/02/2018 05/04/2018

61 NOTICE of Appearance by Amanda Strickland Floyd on behalf of ACLU of Tennessee, Inc. (Floyd, Amanda) (Entered: 11/10/2017)
62 NOTICE by City Of Memphis, Tennessee of Service of Defendant's Second Set of Interrogatories and Requests for Production to Intervening Plaintiff (Silk, Jennie) (Entered: 12/29/2017)
63 ORDER of USCA as to 47 Notice of Appeal filed by Elaine Blanchard, Paul Garner, Keedran Franklin, Bradley Watkins. The appeal is DISMISSED for lack of jurisdiction. (agj) (Entered: 01/17/2018)
64 Consent MOTION to Substitute Attorney proposed order submitted by City of Memphis, Tennessee. (Silk, Jennie) (Entered: 02/01/2018)
65 ORDER granting 64 Motion to Substitute Attorney. Added attorney R. Mark Glover for City of Memphis, Tennessee. Attorney Thomas L. Parker terminated. Signed by Judge Jon Phipps McCalla on 2/1/2018. (McCalla, Jon) (Entered: 02/01/2018)
66 ORDER of USCA as to 47 Notice of Appeal filed by Elaine Blanchard, Paul Garner, Keedran Franklin, Bradley Watkins. Upon consideration of the motion to withdraw Thomas L. Parker and substitute R. MarkGlover as counsel of record, It is ORDERED that the motion be, and hereby is GRANTED. (agj) (Entered: 02/02/2018)
67 NOTICE by City of Memphis, Tennessee of Service of Expert Disclosure and Report to Intervening Plaintiff (Attachments: # 1 Exhibit One)(Silk, Jennie) (Entered: 02/28/2018)
68 ORDER of USCA as to 47 Notice of Appeal filed by Elaine Blanchard, Paul Garner, Keedran Franklin, Bradley Watkins. ORDER filed: The motion for extension of time to file a reply is GRANTED, and the motion to strike the reply is DENIED. The petition for rehearing and the motion for leave to file an amended response to the show cause order are GRANTED. The appeal is DISMISSED for lack of jurisdiction. (jrs) (Entered: 03/02/2018)
69 NOTICE by City of Memphis, Tennessee of Service of Defendant's Second Supplemental Initial Disclosures (Silk, Jennie) (Entered: 03/15/2018)
70 MANDATE of USCA as to 47 Notice of Appeal filed by Elaine Blanchard, Paul Garner, Keedran Franklin, Bradley Watkins. MANDATE ISSUED with no costs taxed. (csf) (Entered: 04/02/2018)
71 Joint MOTION for Status Conference proposed order submitted by All Defendants. (Silk, Jennie) (Entered: 05/04/2018)

05/07/2018 05/08/2018 05/21/2018
05/21/2018 05/21/2018 06/18/2018 06/18/2018 06/18/2018

72 ORDER granting 71 Motion for Status Conference. Signed by Judge Jon Phipps McCalla on 5/7/2018. (McCalla, Jon) (Entered: 05/07/2018)
73 SETTING LETTER: Telephonic Status Conference set for Monday, 5/21/2018 at 10:30 AM before Judge Jon Phipps McCalla. (jpw) (Entered: 05/08/2018)
74 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Telephonic Status Conference held on 5/21/2018. Thomas Hauser Castelli and Amanda Strickland Floyd appeared for the Intervenor Plaintiff. Buck Wellford, Jennie Vee Silk, R. Mark Glover and Mike Fletcher (Deputy City Attorney) appeared for the Defense. Dispositive Motion deadline extended to 6/18/2018. Response due 7/9/2018. Reply due 7/16/2018. Non-Jury Trial reset for Monday, 8/20/2018 at 9:30 AM before Judge Jon Phipps McCalla. Trial is estimated to last 4-5 days. Pretrial Conference reset for Friday, 8/10/2018 at 10:30 AM before Judge Jon Phipps McCalla. Proposed Joint Pretrial Order due by 8/3/2018. (Court Reporter: Nicole Warren) (jpw) (Entered: 05/21/2018)
75 SETTING LETTER: Non-Jury Trial reset for Monday, 8/20/2018 at 9:30 AM before Judge Jon Phipps McCalla. Pretrial Conference reset for Friday, 8/10/2018 at 10:30 AM before Judge Jon Phipps McCalla. Proposed Joint Pretrial Order due by 8/3/2018. (jpw) (Entered: 05/21/2018)
76 ORDER SETTING DATES. Signed by Judge Jon Phipps McCalla on 5/21/2018. (McCalla, Jon) (Entered: 05/21/2018)
77 MOTION to Seal Document - to Allow Filing Under Seal, proposed Order Submitted by City of Memphis, Tennessee. (Wellford, Buckner) (Entered: 06/18/2018)
78 MOTION to Seal to Allow Filing Under Seal by ACLU of Tennessee, Inc.. (Attachments: # 1 Memorandum)(Castelli, Thomas) (Entered: 06/18/2018)
79 SEALED MOTION for Summary Judgment by ACLU of Tennessee, Inc.. (Attachments: # 1 Memorandum, # 2 Exhibit Statement of Undisputed Facts, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 Exhibit R, # 21 Exhibit S, # 22 Exhibit T, # 23 Exhibit U, # 24 Exhibit V, # 25 Exhibit W, # 26 Exhibit X, # 27 Exhibit Y, # 28 Exhibit Z, # 29 Exhibit AA, # 30 Exhibit BB, # 31 Exhibit CC, # 32 Exhibit DD, # 33 Exhibit EE, # 34 Exhibit FF, # 35 Exhibit GG, # 36 Exhibit HH, # 37 Exhibit II, # 38 Exhibit JJ,

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06/22/2018 06/22/2018 07/02/2018

# 39 Exhibit KK, # 40 Exhibit LL, # 41 Exhibit MM, # 42 Exhibit NN, # 43 Exhibit OO, # 44 Exhibit PP, # 45 Exhibit QQ, # 46 Exhibit RR, # 47 Exhibit SS, # 48 Exhibit Deposition of Eddie Bass, # 49 Exhibit Deposition of Albert Bonner, # 50 Exhibit Deposition of Stephen Chandler, # 51 Exhibit Deposition of Aubrey Howard, # 52 Exhibit Deposition of Joseph Patty, # 53 Exhibit Deposition of Michael Rallings, # 54 Exhibit Deposition of Timothy Reynolds, # 55 Exhibit Deposition of Bradley Wilburn)(Castelli, Thomas) (Entered: 06/18/2018)
80 MOTION for Summary Judgment on the Issue of Standing by City of Memphis, Tennessee. (Attachments: # 1 Memorandum, # 2 Statement of Facts, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 Exhibit R, # 21 Exhibit S, # 22 Exhibit T, # 23 Exhibit U, # 24 Exhibit V, # 25 Exhibit W, # 26 Exhibit X)(Silk, Jennie) (Entered: 06/18/2018)
81 SEALED MOTION for Summary Judgment on Issue of Civil Contempt by City of Memphis, Tennessee. (Attachments: # 1 Memorandum Memorandum of Law In Support of Motion for Summary Judgment on Issue of Civil Contempt, # 2 Exhibit Exhibit 1 to Memorandum in Support of Motion for Summary Judgment on Issues of Civil Contempt, # 3 Statement of Facts in Support of Motion for Summary Judgment on Issue of Civil Contempt, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12, # 16 Exhibit 13, # 17 Exhibit 14, # 18 Exhibit 15, # 19 Exhibit 16, # 20 Exhibit 17, # 21 Exhibit 18, # 22 Exhibit 19, # 23 Exhibit 20, # 24 Exhibit 21)(Wellford, Buckner) (Entered: 06/18/2018)
82 MOTION TO HOLD PLAINTIFF'S MOTION TO FILE UNDER SEAL IN ABEYANCE re 78 MOTION to Seal to Allow Filing Under Seal proposed order submitted by City of Memphis, Tennessee. (Silk, Jennie) (Entered: 06/22/2018)
83 Supplemental SEALED MOTION MEMORANDUM IN SUPPORT OF ITS MOTION by City of Memphis, Tennessee. (Silk, Jennie) (Entered: 06/22/2018)
84 SEALED RESPONSE to Motion re 78 MOTION to Seal to Allow Filing Under Seal filed by City of Memphis, Tennessee. (Silk, Jennie) (Entered: 07/02/2018)

07/02/2018 07/02/2018 07/06/2018 07/09/2018 07/09/2018 07/09/2018
07/09/2018 07/09/2018

85 RESPONSE in Opposition re 83 Supplemental SEALED MOTION MEMORANDUM IN SUPPORT OF ITS MOTION, 77 MOTION to Seal Document - to Allow Filing Under Seal, proposed Order Submitted proposed order submitted filed by ACLU of Tennessee, Inc.. (Castelli, Thomas) (Entered: 07/02/2018)
86 MOTION For In Camera Review re 84 Sealed Response to Motion proposed order submitted by City of Memphis, Tennessee. (Silk, Jennie) (Entered: 07/02/2018)
87 RESPONSE to Motion re 82 MOTION TO HOLD PLAINTIFF'S MOTION TO FILE UNDER SEAL IN ABEYANCE re 78 MOTION to Seal to Allow Filing Under Seal proposed order submitted Proposed Order Submitted filed by ACLU of Tennessee, Inc.. (Castelli, Thomas) (Entered: 07/06/2018)
88 SEALED RESPONSE to Motion re 81 SEALED MOTION for Summary Judgment on Issue of Civil Contempt filed by ACLU of Tennessee, Inc.. (Attachments: # 1 Exhibit Response to Statement of Undisputed Facts)(Castelli, Thomas) (Entered: 07/09/2018)
89 MOTION to Seal File under Seal by ACLU of Tennessee, Inc.. (Castelli, Thomas) (Entered: 07/09/2018)
90 RESPONSE to Motion re 80 MOTION for Summary Judgment on the Issue of Standing filed by ACLU of Tennessee, Inc.. (Attachments: # 1 Exhibit Response to Statement of Undisputed Facts, # 2 Exhibit A September 2, 1969 Minutes, # 3 Exhibit B December 11, 1971 Minutes, # 4 Exhibit C Dep of H Weinberg, pg 40)(Castelli, Thomas) (Entered: 07/09/2018)
91 SEALED RESPONSE to Motion re 79 SEALED MOTION for Summary Judgment filed by City of Memphis, Tennessee. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C Part 1, # 4 Exhibit C Part 2, # 5 Exhibit C Part 3)(Silk, Jennie) (Entered: 07/09/2018)
92 SEALED RESPONSE to Motion re 79 SEALED MOTION for Summary Judgment RESPONSE TO PLAINTIFF'S UNDISPUTED STATEMENT OF MATERIAL FACTS filed by City of Memphis, Tennessee. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Silk, Jennie) (Entered: 07/09/2018)

07/09/2018

93 SEALED RESPONSE to Motion re 79 SEALED MOTION for Summary Judgment STATEMENT OF ADDITIONAL FACTS IN SUPPORT OF DEFENDANT'S RESPONSE filed by City of Memphis, Tennessee. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Silk, Jennie) (Entered: 07/09/2018)

07/10/2018

94 MOTION to Seal Response to Plaintiff's Motion for Summary Judgment, proposed order submitted by City of Memphis, Tennessee. (Silk, Jennie) (Entered: 07/10/2018)

07/12/2018

95 ORDER granting 86 Motion for In Camera Review. Signed by Judge Jon Phipps McCalla on 7/12/2018. (McCalla, Jon) (Entered: 07/12/2018)

07/13/2018

96 MOTION for Reconsideration re 95 Order on Motion for Miscellaneous Relief Proposed Order Submitted by ACLU of Tennessee, Inc.. (Attachments: # 1 Exhibit Plaintiff's Response in Opposition to Defendant's Motion for In Camera Review)(Castelli, Thomas) (Entered: 07/13/2018)

07/16/2018 97 ORDER denying 96 Motion for Reconsideration. Signed by Judge Jon Phipps McCalla on 7/16/2018. (McCalla, Jon) (Entered: 07/16/2018)

07/16/2018 98 MOTION to Seal by ACLU of Tennessee, Inc.. (Castelli, Thomas) (Entered: 07/16/2018)

07/16/2018

99 SEALED REPLY to Response to Motion re 93 Sealed Response to Motion, 92 Sealed Response to Motion, 91 Sealed Response to Motion, filed by ACLU of Tennessee, Inc.. (Attachments: # 1 Exhibit Response to Defendant's Additional Statement of Facts, # 2 Exhibit Deposition of Chandler)(Castelli, Thomas) (Entered: 07/16/2018)

07/16/2018

100 REPLY to Response to Motion re 90 Response to Motion, for Summary Judgment on the Issue of Standing filed by City of Memphis, Tennessee. (Attachments: # 1 Exhibit City's Response to ACLU-TN's Statement of Additional Facts)(Silk, Jennie) (Entered: 07/16/2018)

07/16/2018

101 ORDER DENYING 82 MOTION TO HOLD MOTION IN ABEYANCE AND DENYING IN PART 77 78 MOTIONS TO FILE DOCUMENTS UNDER SEAL. Signed by Judge Jon Phipps McCalla on 7/16/2018. (McCalla, Jon) (Main Document 101 replaced on 7/16/2018) (McCalla, Jon). (Entered: 07/16/2018)

07/16/2018 102 SEALED REPLY to Response to Motion re 88 Sealed Response to Motion for Summary Judgment on Issue of Civil Contempt filed by City

of Memphis, Tennessee. (Attachments: # 1 Exhibit Cumulative Ex. A, # 2 Exhibit Cumulative Ex. B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit Cumulative Ex. H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Silk, Jennie) (Entered: 07/16/2018)

07/17/2018

103 MOTION to Seal Exhibits to Reply to Plaintiff's Response to Motion for Summary Judgment on Civil Contempt Under Seal - proposed order submitted by City of Memphis, Tennessee. (Silk, Jennie) (Entered: 07/17/2018)

07/19/2018

104 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Telephonic Status Conference held on 7/19/2018. Thomas Hauser Castelli and Amanda Strickland Floyd appeared for the Plaintiff. Buckner Wellford, Jennie Vee Silk, and R. Mark Glover appeared for the Defense. Joint oral motion submitted re: relief as to deadlines, the sequence of filing, and instructions regarding redaction. Motion for relief GRANTED. Parties agree to submit a joint proposed order for review and entry by the Court. (Court Reporter: Lisa Mayo) (jrs) (Entered: 07/20/2018)

07/23/2018 105 ORDER GRANTING JOINT ORAL MOTION TO UNSEAL DOCUMENTS. Signed by Judge Jon Phipps McCalla on 7/23/2018. (McCalla, Jon) (Entered: 07/23/2018)

07/23/2018

***MOTIONS TERMINATED: 77 78 83 MOTIONS to seal Motions for Summary Judgment and supporting documents; 89 94 MOTIONS to seal Responses and supporting documents; 98 103 MOTIONS to seal Replies and supporting documents. (McCalla, Jon) (Entered: 07/23/2018)

07/24/2018

106 MOTION for Summary Judgment on the Issue of Contempt by City of Memphis, Tennessee. (Attachments: # 1 Memorandum Memorandum of Law in Support of Motion for Summary Judgment on Civil Contempt, # 2 Exhibit 1 to Memorandum of Law in Support of Motion for Summary Judgment on Civil Contempt, # 3 Exhibit Statement of Material Undisputed Facts in Support of Motion for Summary Judgment, # 4 Exhibit 1 to Statement of Facts, # 5 Exhibit 2 to Statement of Facts, # 6 Exhibit 3 to Statement of Facts, # 7 Exhibit 4 to Statement of Facts, # 8 Exhibit 5 to Statement of Facts, # 9 Exhibit 6 to Statement of Facts, # 10 Exhibit 7 to Statement of Facts, # 11 Exhibit 8 to Statement of Facts, # 12 Exhibit 9 to Statement of Facts, # 13 Exhibit 10 to Statement of Facts, # 14 Exhibit 11 to Statement of Facts, # 15 Exhibit 12 to Statement of Facts, # 16 Exhibit 13 to Statement of Facts, # 17 Exhibit 14 to Statement of Facts, # 18 Exhibit 15 to Statement of Facts, # 19 Exhibit 16 to Statement of Facts, # 20 Exhibit

17 to Statement of Facts, # 21 Exhibit 18 to Statement of Facts, # 22 Exhibit 19 to Statement of Facts, # 23 Exhibit 20 to Statement of Facts, # 24 Exhibit 21 to Statement of Facts)(Wellford, Buckner) (Entered: 07/24/2018)

07/24/2018

107 MOTION for Summary Judgment by ACLU of Tennessee, Inc.. (Attachments: # 1 Memorandum in Support of Motion for Summary Judgment, # 2 Exhibit Statement of Undisputed Facts, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 Exhibit R, # 21 Exhibit S, # 22 Exhibit T, # 23 Exhibit U, # 24 Exhibit V, # 25 Exhibit W, # 26 Exhibit X, # 27 Exhibit Y, # 28 Exhibit Z, # 29 Exhibit AA, # 30 Exhibit BB, # 31 Exhibit CC, # 32 Exhibit DD, # 33 Exhibit EE, # 34 Exhibit FF, # 35 Exhibit GG, # 36 Exhibit HH, # 37 Exhibit II, # 38 Exhibit JJ, # 39 Exhibit KK, # 40 Exhibit LL, # 41 Exhibit MM, # 42 Exhibit NN, # 43 Exhibit OO, # 44 Exhibit PP, # 45 Exhibit QQ, # 46 Exhibit RR, # 47 Exhibit SS, # 48 Exhibit Bass Deposition, # 49 Exhibit Bonner Deposition, # 50 Exhibit Chandler Deposition, # 51 Exhibit Howard Deposition, # 52 Exhibit Patty Deposition, # 53 Exhibit Rallings Deposition, # 54 Exhibit Reynolds Deposition, # 55 Exhibit Wilburn Deposition)(Castelli, Thomas) (Entered: 07/24/2018)

07/25/2018

108 RESPONSE to Motion re 106 MOTION for Summary Judgment on the Issue of Contempt filed by ACLU of Tennessee, Inc.. (Attachments: # 1 Exhibit Response to Statement of Facts)(Castelli, Thomas) (Entered: 07/25/2018)

07/25/2018

109 RESPONSE to Motion re 107 MOTION for Summary Judgment filed by City of Memphis, Tennessee. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C Part 1, # 4 Exhibit C Part 2, # 5 Exhibit C part 3)(Silk, Jennie) (Entered: 07/25/2018)

07/25/2018

110 RESPONSE to Motion re 107 MOTION for Summary Judgment Response to Plaintiff's Undisputed Statement of Material Facts filed by City of Memphis, Tennessee. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Silk, Jennie) (Entered: 07/25/2018)

07/25/2018

111 RESPONSE to Motion re 107 MOTION for Summary Judgment Statement of Additional Facts in Support of Defendant's Response filed by City of Memphis, Tennessee. (Attachments:

# 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Silk, Jennie) (Entered: 07/25/2018)

07/25/2018 112 Notice of Correction to 109 Response to Motion, City's Response to Plaintiff's Motion for Summary Judgment (Main Document). (Silk, Jennie) (Entered: 07/25/2018)

07/25/2018

113 REPLY to Response to Motion re 108 Response to Motion for Summary Judgment on Issue of Civil Contempt filed by City of Memphis, Tennessee. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Silk, Jennie) (Entered: 07/25/2018)

07/25/2018

114 REPLY to Response to Motion re 111 Response to Motion, 109 Response to Motion, filed by ACLU of Tennessee, Inc.. (Attachments: # 1 Exhibit Response to Defendant's Statement of Facts, # 2 Exhibit Reply in Support of Motion for Summary Judgment)(Castelli, Thomas) (Entered: 07/25/2018)

07/25/2018

115 RESPONSE to Motion re 78 MOTION to Seal to Allow Filing Under Seal UNSEALED RE-FILE OF ECF NO. 84 - NO COURT ACTION REQUIRED filed by City of Memphis, Tennessee. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Silk, Jennie) (Entered: 07/25/2018)

07/26/2018 116 Notice of Correction to 114 Reply to Response to Motion, . (Castelli, Thomas) (Entered: 07/26/2018)

07/30/2018

117 ORDER denying 80 Motion for Summary Judgment on the Issue of Standing. Signed by Judge Jon Phipps McCalla on 7/30/2018. (McCalla, Jon) (Main Document 117 replaced on 8/2/2018) (McCalla, Jon). (Entered: 07/30/2018)

07/31/2018 118 NOTICE of Appearance by Lawrence J. Laurenzi on behalf of City of Memphis, Tennessee (Laurenzi, Lawrence) (Entered: 07/31/2018)

08/10/2018

119 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Pretrial Conference held on 8/10/2018. Thomas Castelli and Amanda Strickland Floyd appeared for the Intervenor Plaintiff ACLU. Buck Wellford, Jennie Vee Silk, R. Mark Glover and Larry Laurenzi appeared for the Defendant City of Memphis. Non-Jury Trial will begin at 9:00 AM on Monday, 8/20/2018 in Courtroom 4 - Memphis before Judge Jon Phipps McCalla. Trial is now estimated to last 4 days. The Court anticipates ruling on the pending dispositive motions this afternoon. Pretrial briefs and proposed findings and fact & conclusions

of law due by 8/15/2018. (Court Reporter: Lisa Mayo) (jpw) (Entered: 08/10/2018)

08/10/2018

120 ORDER GRANTING IN PART AND DENYING IN PART THE ACLU-TNS 79 107 MOTION FOR SUMMARY JUDGMENT AND ORDER DENYING THE CITYS 81 106 MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF CONTEMPT. Signed by Judge Jon Phipps McCalla on 8/10/2018. (McCalla, Jon) (Entered: 08/10/2018)

08/15/2018 121 TRIAL BRIEF by ACLU of Tennessee, Inc.. (Castelli, Thomas) (Entered: 08/15/2018)
08/15/2018 122 PRETRIAL ORDER. Signed by Judge Jon Phipps McCalla on 8/15/2018. (McCalla, Jon) (Entered: 08/15/2018)
08/15/2018 123 TRIAL BRIEF by City of Memphis, Tennessee. (Silk, Jennie) (Entered: 08/15/2018)

08/15/2018 124 MOTION to Vacate proposed order submitted by City of Memphis, Tennessee. (Attachments: # 1 Memorandum of Law in Support of Motion to Vacate or Modify)(Silk, Jennie) (Entered: 08/15/2018)

08/16/2018

125 Notice of Correction to 124 MOTION to Vacate proposed order submitted - correction to Title of ECF 124-1. (Wellford, Buckner) (Entered: 08/16/2018)

08/20/2018

126 NOTE: Incorrect document attached. Re-filed as 127 . NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on August 20, 2018 before Judge Jon P. McCalla. Court Reporter Lisa mayo, Telephone number 901-495-1537.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 8/27/2018. Redaction Request due 9/10/2018. Release of Transcript Restriction set for 11/19/2018. (Mayo, Lisa) Modified on 8/21/2018 (cbs). (Entered: 08/20/2018)

08/20/2018 127 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on August 20, 2018 before Judge Jon P. McCalla. Court Reporter Lisa Mayo, Telephone number 901-495-1537.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 8/27/2018. Redaction Request due 9/10/2018. Release of Transcript Restriction set for 11/19/2018. (Mayo, Lisa) (Entered: 08/20/2018)

08/20/2018

128 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Non-Jury Trial (Day 1) held on 8/20/2018. Thomas Hauser Castelli and Amanda Strickland Floyd appeared for the Plaintiff. Buckner Wellford, Jennie Vee Silk, Lawrence J. Laurenzi, and R. Mark Glover appeared for the Defense. Preliminary matter addressed: Pending motion 124 will be taken under advisement. Rule called for and opening statements given by counsel. Plaintiff's proof/sworn witness: Hedy Weinberg: Exhs. 1-22; Rule 52(a) motion raised and taken under advisement. Defense counsel will depose Bruce S. Kramer, Esq. Sgt. Timothy Reynolds: Exhs. 23-67. Non-Jury Trial will resume tomorrow, 8/21/2018 at 8:45 AM. (Court Reporter: Lisa Mayo) (jrs) (Entered: 08/21/2018)

08/21/2018

129 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Non-Jury Trial (Day 2) held on 8/22/2018. Thomas Hauser Castelli and Amanda Strickland Floyd appeared for the Plaintiff. Buckner Wellford, Jennie Vee Silk, Lawrence J. Laurenzi, and R. Mark Glover appeared for the Defense. Continued with Plaintiff's proof/sworn witnesses: Sgt. Tim Reynolds resumed testimony: Exhs. 68-94; Michael Cody, Esquire: Exhs. 95-96; Sgt. Tim Reynolds resumed testimony: Exh. 97; Bruce Kramer, Esquire: Exhs. 98-102; Commander Stephen Warner Chandler: Exhs. 103-110; Director Michael Rallings: Exhs. 111-112. Non-Jury Trial to resume tomorrow, August 22, 2018, at 8:40 AM. (Court Reporter: Lisa Mayo) (jrs) (Entered: 08/22/2018)

08/22/2018

130 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Non-Jury Trial (Day 3) held on 8/22/2018. Thomas Hauser Castelli and Amanda Strickland Floyd appeared for the Plaintiff. Buckner Wellford, Jennie Vee Silk, Lawrence J. Laurenzi, and R. Mark Glover appeared for the Defense. Continued with Plaintiff's proof/sworn witnesses: MPD Director Michael Rallings resumed testimony: Exhs. 113-117; Lt. Colonel Eddie Bass: Exhs. 118-130; Aubrey Howard: Exhs. 131-133; Hedy Weinberg: Exh. 134; Sgt. Bradley Wilburn: Exhs. 135-138; Paul Garner: Exhs. 139-140A; Keedran Franklin: Exhs. 141-144. Non-Jury Trial to resume tomorrow, August 23, 2018, at 8:40 AM. (Court Reporter: Lisa Mayo) (jrs) (Entered: 08/23/2018)

08/23/2018

131 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Non-Jury Trial (Day 4) held and completed on 8/23/2018. Thomas Hauser Castelli and Amanda Strickland Floyd appeared for the Plaintiff. Buckner Wellford, Jennie Vee Silk, Lawrence J. Laurenzi, and R. Mark Glover appeared for the Defense. Continued with Plaintiff's proof/sworn witnesses: Rev. Elaine Blanchard: Exhs. 145-146; Pastor Earl Fisher. Plaintiff rests. Rule 52(a) motion renewed and again taken under advisement. Major Lambert Ross: Exhs. 147-150; Exhibit 151 marked and admitted. Defense rests. No rebuttal proof. Briefs will be submitted in place of closing arguments. Order will be entered with regard to briefing schedules. Court to issue a written ruling. (Court Reporter: Lisa Mayo) (jrs) (Entered: 08/24/2018)

08/24/2018 132 Exhibit and Witness List for Non-Jury Trial held from 8/20/2018 8/23/2018. (jrs) (Entered: 08/24/2018)

08/24/2018 133 ORDER setting briefing schedules. Signed by Judge Jon Phipps McCalla on 08/24/2018. (Sullivan, Daniel) (Entered: 08/24/2018)

08/28/2018

134 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on August 20, 2018 before Judge McCalla. Court Reporter Lisa Mayo, Telephone number 9014951537.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 9/4/2018. Redaction Request due 9/18/2018. Release of Transcript Restriction set for 11/26/2018. (Mayo, Lisa) (Entered: 08/28/2018)

08/28/2018

135 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on August 20, 2018 before Judge McCalla. Court Reporter Lisa Mayo, Telephone number 9014951537.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 9/4/2018. Redaction Request due 9/18/2018. Release of Transcript Restriction set for 11/26/2018. (Mayo, Lisa) (Entered: 08/28/2018)

08/28/2018 136 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on August 21, 2018 before Judge Jon P. McCalla. Court Reporter Lisa Mayo, Telephone number 9014951537.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 9/4/2018. Redaction Request due 9/18/2018.

Release of Transcript Restriction set for 11/26/2018. (Mayo, Lisa) (Entered: 08/28/2018)

08/28/2018

137 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on August 21, 2018 before Judge Jon P. McCalla. Court Reporter Lisa Mayo, Telephone number 9014951537.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 9/4/2018. Redaction Request due 9/18/2018. Release of Transcript Restriction set for 11/26/2018. (Mayo, Lisa) (Entered: 08/28/2018)

08/28/2018 138 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on August 22, 2018 before Judge Jon P. McCalla. Court Reporter Lisa Mayo, Telephone number 9014951537.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 9/4/2018. Redaction Request due 9/18/2018. Release of Transcript Restriction set for 11/26/2018. (Mayo, Lisa) (Entered: 08/28/2018)

08/28/2018 139 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on August 22, 2018 before Judge Jon P. McCalla. Court Reporter Lisa Mayo, Telephone number 9014951537.
Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.
Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 9/4/2018. Redaction Request due 9/18/2018. Release of Transcript Restriction set for 11/26/2018. (Mayo, Lisa) (Entered: 08/28/2018)
08/28/2018 140 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on August 23, 2018 before Judge Jon P. McCalla. Court Reporter Lisa Mayo, Telephone number 9014951537.
Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.
Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 9/4/2018. Redaction Request due 9/18/2018. Release of Transcript Restriction set for 11/26/2018. (Mayo, Lisa) (Entered: 08/28/2018)
09/14/2018 141 DEPOSITION of Bruce Kramer taken on 08-20-2018 by All Defendants. (Attachments: # 1 Exhibit 1)(Silk, Jennie) (Entered: 09/14/2018)

09/14/2018 142 TRIAL BRIEF Post-Trial Brief on the Issue of Standing by City of Memphis, Tennessee. (Silk, Jennie) (Entered: 09/14/2018)

09/14/2018 143 TRIAL BRIEF Plaintiff's Post Trial Brief on the Merits by ACLU of Tennessee, Inc.. (Castelli, Thomas) (Entered: 09/14/2018)

09/24/2018 144 TRIAL BRIEF Post Trial Brief on the Issue of Standing by ACLU of Tennessee, Inc.. (Castelli, Thomas) (Entered: 09/24/2018)

09/24/2018

145 TRIAL BRIEF Response to ACLU-TN's Post-Trial Brief on the Merits by City of Memphis, Tennessee. (Silk, Jennie) (Entered: 09/24/2018)

09/27/2018 146 MOTION for Leave to File Reply (proposed Order Submitted) by City of Memphis, Tennessee. (Silk, Jennie) (Entered: 09/27/2018)

10/01/2018

147 ORDER granting 146 Motion for Leave to File Reply Brief on Issue of Standing. Signed by Judge Jon Phipps McCalla on 10/1/18. (Sullivan, Daniel) (Entered: 10/01/2018)

10/09/2018 148 TRIAL BRIEF Reply to ACLU-TN's Post-Trial Brief on the Issue of Standing by City of Memphis, Tennessee. (Silk, Jennie) (Entered: 10/09/2018)

10/09/2018

149 RESPONSE in Opposition re 124 MOTION to Vacate proposed order submitted filed by ACLU of Tennessee, Inc.. (Floyd, Amanda) (Entered: 10/09/2018)

10/16/2018 150 MOTION for Leave to File Reply (proposed order submitted) by City of Memphis, Tennessee. (Silk, Jennie) (Entered: 10/16/2018)

10/26/2018 151 ORDER AND OPINION. Signed by Judge Jon Phipps McCalla on 10/26/18. (Sullivan, Daniel) (Entered: 10/26/2018)

10/29/2018

152 ORDER MEMORIALIZING SANCTIONS. The Court imposed certain sanctions on the City in its October 27, 2018 Order. 151 For ease of access, the specific requirements of that Order are reproduced within. Signed by Judge Jon Phipps McCalla on 10/29/18. (Sullivan, Daniel) (Entered: 10/29/2018)

11/02/2018

153 ORDER. Parties are to appear for a telephonic status conference on 11/9/18 at 10:30 a.m. Signed by Judge Jon Phipps McCalla on 11/2/18. (Sullivan, Daniel) (Main Document 153 replaced on 11/2/2018) (Sullivan, Daniel). (Entered: 11/02/2018)

11/05/2018 154 SETTING LETTER: A Telephonic Status Conference is set for Friday, 11/9/2018 at 10:30 AM before Judge Jon Phipps McCalla. Counsel for

the Plaintiff shall initiate the conference call prior to dialing Judge McCallas chambers at 901-495-1291. (jrs) (Entered: 11/05/2018)

11/09/2018

155 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Telephonic Status Conference held on 11/9/2018. Thomas Hauser Castelli and Amanda Strickland Floyd appeared for the Plaintiff. Buckner Wellford, Mark Glover, Jennie, Silk and Lawrence J. Laurenzi appeared for the Defense. Bruce McMullen and Jenny Sink also appeared. City's request to vacate deferred. Evidentiary Hearing to be held. Evidentiary Hearing is set for Monday, 7/8/2019 at 9:30 AM before Judge Jon Phipps McCalla. Hearing is estimated to last 2 days. Order to be entered. (Court Reporter: Lisa Mayo) (jrs) (Entered: 11/09/2018)

11/09/2018

156 SETTING LETTER: An Evidentiary Hearing is set for Monday, 7/8/2019 at 9:30 AM before Judge Jon Phipps McCalla. Hearing is estimated to last 2 days. (jrs) (Entered: 11/09/2018)

11/13/2018 157 TRANSCRIPT RELEASE NOTICE:

By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.

Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. Documents 126 and 127 : Release Date: 11/19/2018. (smm) (Entered: 11/13/2018)

11/13/2018 158 NOTICE by City of Memphis, Tennessee Designation of Monitor (Attachments: # 1 Exhibit Bio of Edward Stanton, III)(Wellford, Buckner) (Entered: 11/13/2018)

11/14/2018 159 CONSENT DECREE MODIFICATION SCHEDULING ORDER. Kendrick and Honey to be Notified by 11/23/18. Signed by Judge Jon Phipps McCalla on 11/14/18. (Sullivan, Daniel) (Entered: 11/14/2018)

11/19/2018 160 TRANSCRIPT RELEASE NOTICE:

By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.

Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. Documents 134 , 135 , 136 , 137 , 138 , 139 and 140 : Release Date: 11/26/2018. (smm) (Entered: 11/19/2018)

11/20/2018 161 NOTICE of Appearance by Mary Wu Tullis on behalf of City of Memphis, Tennessee (Tullis, Mary) (Entered: 11/20/2018)

11/21/2018 162 NOTICE by Elaine Blanchard , B. Watkins, P. Garner, and Keedran Franklin of Appearance (Brown, Jacob) (Entered: 11/21/2018)

11/21/2018

163 NOTICE by ACLU of Tennessee, Inc. of Serving Original Plaintiffs (Attachments: # 1 Exhibit Notice to Original Plaintiffs, # 2 Exhibit Order Setting Modification Schedule, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5)(Castelli, Thomas) (Entered: 11/21/2018)

12/10/2018 164 NOTICE by ACLU of Tennessee, Inc. Designation of Monitor (Attachments: # 1 Bio of Bill Nettles)(Castelli, Thomas) (Entered: 12/10/2018)

12/12/2018

165 ORDER SETTING PROTOCOL FOR SELECTION OF MONITOR. Interviews contemplated to take place on December 20 or 21, 2018, if possible. Signed by Judge Jon Phipps McCalla on 12/12/18. (Sullivan, Daniel) (Entered: 12/12/2018)

12/14/2018 167 MOTION for Status Conference proposed order submitted by City of Memphis, Tennessee. (Silk, Jennie) (Entered: 12/14/2018)

12/14/2018

168 MOTION to Intervene by Elaine Blanchard. (Attachments: # 1 Memorandum Memorandum Supporting Motion to Intervene)(Brown, Jacob) (Entered: 12/14/2018)

12/17/2018

169 ORDER granting 167 Motion for Status Conference. Parties to appear telephonically on Tuesday, December 18, 2018 at 9:30 a.m. Signed by Judge Jon Phipps McCalla on 12/17/18. (Sullivan, Daniel) (Main Document 169 replaced on 12/17/2018) (Sullivan, Daniel). (Entered: 12/17/2018)

12/17/2018

170 SETTING LETTER: Telephonic Status Conference set for Tuesday, 12/18/2018 at 9:30 AM (CST) before Judge Jon Phipps McCalla. Counsel for the Plaintiff shall initiate the conference call prior to dialing Judge McCalla's chambers at 901-495-1291. (jpw) (Entered: 12/17/2018)

12/18/2018

171 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Telephonic Status Conference held on 12/18/2018. Thomas Castelli and Amanda Strickland Floyd appeared for the Plaintiff. Jennie Silk, Mary Wu Tullis, and Mark Glover appeared for the Defendant. Bruce McMullen and Jenny Sink were also present from the City Attorney's office. City Monitor selection process reviewed. Court's scheduling order discussed. City to file a motion re: schedule. City will file response to motion 168 by 12/21/2018. Order to be entered. (Court Reporter: Cathy Best) (jrs) (Entered: 12/18/2018)

12/18/2018 172 ORDER Following Status Conference. Signed by Judge Jon Phipps McCalla on 12/18/18. (Sullivan, Daniel) (Entered: 12/18/2018)

12/20/2018 175 Joint MOTION to Stay re 124 MOTION to Vacate proposed order submitted and incorporated Memorandum of Law by City of Memphis, Tennessee. (Wellford, Buckner) (Entered: 12/20/2018)

12/21/2018

176 ORDER Appointing Independent Monitor. The Court hereby appoints Edward Stanton, III as the independent monitor in this case. Signed by Judge Jon Phipps McCalla on 12/21/18. (Sullivan, Daniel) (Entered: 12/21/2018)

12/21/2018 177 RESPONSE in Opposition re 168 MOTION to Intervene filed by City of Memphis, Tennessee. (Silk, Jennie) (Entered: 12/21/2018)

12/31/2018 178 ORDER granting 175 Motion to Stay. Deadlines related to sanctions are unaffected by this order. Dates related to modification proceedings

stayed. Signed by Judge Jon Phipps McCalla on 12/31/18. (Sullivan, Daniel) (Entered: 12/31/2018)

12/31/2018

179 SETTING LETTER: A Telephonic Status Conference is set for Thursday, 1/2/2020 at 9:30 AM before Judge Jon Phipps McCalla. Counsel for the Plaintiff shall initiate the conference call prior to dialing Judge McCallas chambers at 901-495-1291.(jrs) (Entered: 12/31/2018)

01/07/2019

180 ORDER DOCKETING MATERIALS SUBMITTED BY INDEPENDENT MONITOR. Signed by Judge Jon Phipps McCalla on 1/7/19. (Attachments: # 1 Submission)(Sullivan, Daniel) (Additional attachment(s) added on 1/7/2019: # 2 Appendix, # 3 Appendix, # 4 Appendix, # 5 Appendix, # 6 Appendix, # 7 Appendix, # 8 Appendix) (Sullivan, Daniel). (Entered: 01/07/2019)

01/08/2019 181 NOTICE of Filing Under Seal of Projected Budget of Independent Monitor per Court's Order 180 . (Sullivan, Daniel) (Entered: 01/08/2019)

01/14/2019 182 ORDER denying 168 Motion to Intervene. Signed by Judge Jon Phipps McCalla on 1/14/19. (Sullivan, Daniel) (Entered: 01/14/2019)

01/14/2019 183 Sealed Document Court-Ordered Search Terms. (Attachments: # 1 Exhibit Search Terms)(Wellford, Buckner) (Entered: 01/14/2019)

01/15/2019 184 SEALED ORDER ON COSTS OF MONITOR SELECTION PROCESS. Signed by Judge Jon Phipps McCalla on 1/15/19. (Attachments: # 1 Appendix)(Sullivan, Daniel) (Entered: 01/15/2019)

01/15/2019

185 ORDER DOCKETING MATERIALS SUBMITTED BY CITY OF MEMPHIS. ACLU-TN response due by February 4, 2019. Signed by Judge Jon Phipps McCalla on 1/15/19. (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix, # 4 Appendix, # 5 Appendix, # 6 Appendix, # 7 Appendix)(Sullivan, Daniel) (Entered: 01/15/2019)

02/04/2019

186 NOTICE by ACLU of Tennessee, Inc. re 183 Sealed Document, 185 Order, Response in Opposition to Policies Proposed by Defendant City of Memphis (Floyd, Amanda) (Entered: 02/04/2019)

02/12/2019

187 SEALED ORDER ON COSTS OF INDEPENDENT MONITOR signed by Samuel H. Mays, Jr on 2/12/19. (Attachments: # 1 December Invoice, # 2 January Invoice, # 3 Experts Invoice)(Sullivan, Daniel) (Entered: 02/12/2019)

02/14/2019 188 NOTICE of entry under seal of Order on Costs of Independent Monitor 187 . Documents available to attorneys for ACLU Tennessee and City of Memphis. (Sullivan, Daniel) (Entered: 02/14/2019)

02/28/2019

189 ORDER ON CITY OF MEMPHIS MATERIALS. The parties shall appear for a hearing on the ACLU-TN's objections on Tuesday, April 23, 2019 at 9:30 a.m. Court directs independent monitor to make inquiries. Signed by Judge Jon Phipps McCalla on 2/28/19. (Sullivan, Daniel) (Entered: 02/28/2019)

03/05/2019

190 ORDER ON COSTS OF MONITOR SELECTION PROCESS. Previous 184 Order now available to attorneys for City of Memphis and ACLU-TN. Signed by Judge Jon Phipps McCalla on 3/5/19. (des) (Entered: 03/05/2019)

03/13/2019

191 Pursuant to Admin. Order 2019-09 Magistrate Judge Jon A. York added to case. Magistrate Judge Edward G. Bryant no longer assigned. (mbm) (Entered: 03/13/2019)

03/18/2019 192 SETTING LETTER: A Status Conference is set for Tuesday, 4/23/2019 at 9:30 AM before Judge Jon Phipps McCalla. (jrs) (Entered: 03/18/2019)

03/19/2019 193 SEALED ORDER ON COSTS OF INDEPENDENT MONITOR. Signed by Judge Jon Phipps McCalla on 3/19/19. (Attachments: # 1 Invoice)(des) (Entered: 03/19/2019)

03/20/2019 194 NOTICE - SEALED ORDER 193 should now be accessible by attorneys for ACLU and City of Memphis.(des) (Entered: 03/20/2019)

03/20/2019

195 ORDER Expanding Scope of Hearing. Independent Monitor to present a progress report during April 23, 2019 hearing, in addition to topics previously designated. Signed by Judge Jon Phipps McCalla on 3/20/19. (des) (Entered: 03/20/2019)

04/01/2019

196 NOTICE by City of Memphis, Tennessee of Defendant's Response to ACLU-TN's Opposition to Policies Proposed by Defendant City of Memphis (Attachments: # 1 Exhibit A. DR 138 Political Intelligence, # 2 Exhibit B. Trianing Plan, # 3 Exhibit C. Training Powerpoint, # 4 Exhibit D. Guidelines for Delegation of Authority, # 5 Exhibit E. Authorizations for Investigations, # 6 Exhibit F. Form for Authorizations, # 7 Exhibit G. Social Media Policy)(Glover, R.) (Entered: 04/01/2019)

04/05/2019 197 Report of Independent Monitor. Submitted to Chambers on April 1, 2019. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 SEALED Exhibit 3)(des) (Entered: 04/05/2019)

04/05/2019

198 TEXT NOTICE - Docket Entry 197 seal modified. Report, Exhibit 1, and Exhibit 2 available to the public. Exhibit 3 sealed and accessible to attorneys for ACLU-TN and City of Memphis.(des) Modified on 4/5/2019 (des). (Entered: 04/05/2019)

04/15/2019 199 Sealed Document Defendant's Response to Opinion and Order, EDF No. 151 Search Terms Used by MPD. (Attachments: # 1 Exhibit Ex, A. MPD Social Media Searches)(Glover, R.) (Entered: 04/15/2019)

04/22/2019

200 NOTICE: The Status Conference set for Tuesday, 4/23/2019 at 9:30 AM before Judge Jon Phipps McCalla will be held in Courtroom 7 - 9th floor of the Federal Building. (jrs) (Entered: 04/22/2019)

04/22/2019 201 SEALED MOTION Under Seal for Clarification of Remedies and Steps for Future Compliance Provisions of the Opinion and Order by City of Memphis, Tennessee. (Glover, R.) (Entered: 04/22/2019)

04/23/2019

202 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Status Conference held on 4/23/2019. ACLU v. City of MemphisThomas Hauser Castelli and Amanda Strickland Floyd appeared for the Plaintiff. Buckner Wellford, Jennie Vee Silk, Mary Wu Tullis, and R. Mark Glover appeared for the Defendant. Edward L. Stanton, III, Independent Monitor also appeared. Mr. Stanton presented an a progress report on efforts to achieve compliance with the Consent Decree. Independent Monitor's sworn witness: Chief T Bowman; Rachel Levinson-Waldman; John Henegan; David McGriff; Jim Letten. Public participation plan due in 30 days. 90 day expectation list to be submitted in 2 weeks. Report due by 7/24/2019. Parties to submit proposed dates for status conference. (Court Reporter; Debi Pearce, Alpha Reporting) (jrs) (Entered: 04/23/2019)

04/23/2019

TEXT NOTICE - 201 Sealed Motion now available to Attorneys for ACLU-TN (des) (Entered: 04/23/2019)

04/23/2019 203 ORDER Following Conference. Signed by Judge Jon Phipps McCalla on 4/23/19. (des) (Entered: 04/23/2019)

04/23/2019 204 Sealed Order on Costs of Independent Monitor. Signed by Judge Jon Phipps McCalla on 3/19/19. (Attachments: # 1 Invoice)(des) (Entered: 04/23/2019)

04/24/2019

TEXT NOTICE - Document 204 seal modified on 4/24/19. Now accessible to attorneys for ACLU-TN and City of Memphis. (des) (Entered: 04/24/2019)

05/02/2019 205 FIRST QUARTERLY REPORT of Independent Monitor. Filed on 5/2/19 (Attachments: # 1 SEALED Exhibit 1)(des) (Entered: 05/02/2019)

05/03/2019 206 Sealed Document Response to April 2019 Quarterly Report of Independent Monitor. (Attachments: # 1 Exhibit A)(Silk, Jennie) (Entered: 05/03/2019)

05/13/2019

207 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 4/23/2019 before Judge Jon P. McCalla. Court Reporter Deborah J. Pearce, Alpha Reporting, Telephone number (901)5238974.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 5/20/2019. Redaction Request due 6/3/2019. Release of Transcript Restriction set for 8/12/2019. (btg) (Entered: 05/13/2019)

05/13/2019

208 REPORT REGARDING THE INDEPENDENT MONITORS NINETY-DAY GOALSAND JOINT REQUEST WITH THE PARTIES FOR STATUS CONFERENCE. Submitted in camera by Independent Monitor on 5/7/19. Entered on 5/13/19.(des) (Entered: 05/13/2019)

05/21/2019

209 SEALED ORDER ON COSTS OF INDEPENDENT MONITOR for April, 2019. Objections due by 5/28/19. Signed by Judge Jon Phipps McCalla on 5/21/19. (Attachments: # 1 Invoice)(des) (Entered: 05/21/2019)

05/24/2019 210 ORDER SETTING HEARING on Tuesday, August 27, 2019 at 9:30 a.m. Signed by Judge Jon Phipps McCalla on 5/24/19. (des) (Main Document 210 replaced on 5/24/2019) (des). (Entered: 05/24/2019)

05/24/2019 211 JOINT PUBLIC ENGAGEMENT PLAN OF THE INDEPENDENT MONITOR AND THE PARTIES, submitted to the Court by Edward L. Stanton, III on 5/23/19. (des) (Entered: 05/24/2019)

05/31/2019

212 SETTING LETTER: Hearing re: Monitor's Report set for Tuesday, 8/27/2019 at 9:30 AM in US District Court - Clifford Davis / Odell Horton Federal Building before Judge Jon Phipps McCalla. (jpw) (Entered: 05/31/2019)

06/14/2019

213 SEALED ORDER ON COSTS OF INDEPENDENT MONITOR for May, 2019. Objections due June 21, 2019. Signed by Judge Jon Phipps McCalla on 6/14/19. (Attachments: # 1 Invoice)(des) (Entered: 06/14/2019)

07/16/2019

214 Sealed Document Defendant's Response to Opinion and Order, ECF No. 151 Search Terms Used by MPD. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Silk, Jennie) (Entered: 07/16/2019)

07/16/2019 215 ORDER on Costs of Independent Monitor (June). Signed by Judge Samuel H. Mays, Jr on 7/16/19. (Attachments: # 1 Invoice)(des) (Entered: 07/16/2019)

07/26/2019

216 ORDER EXTENDING DEADLINE FOR SECOND QUARTERLY REPORT. Signed by Judge Jon Phipps McCalla on 7/26/19. (des) (Entered: 07/26/2019)

08/05/2019 217 TRANSCRIPT RELEASE NOTICE:

By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.

Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance

on this issue. (re: DE# 207 ; release date 8/12/2019) (tlh) (Entered: 08/05/2019)

08/07/2019

218 Sealed Document. Full Second Quarterly Report of Independent Monitor. (Attachments: # 1 Exhibits 1, 2, 3, 5, 6, # 2 Exhibit 4)(des) Entered on 8/7/19 (Entered: 08/07/2019)

08/07/2019

219 NOTICE by Edward L. Stanton, III: Second Quarterly Report of the Independent Monitor. Unredacted Exhibits filed under seal and accessible to parties. (Attachments: # 1 Partially Redacted Exhibits).Entered on 8/7/19.(des) (Main Document 219 replaced on 8/7/2019) (des). (Entered: 08/07/2019)

08/22/2019 220 ORDER on Costs of Independent Monitor (July 2019). (Attachments: # 1 Invoice)(mom) (Entered: 08/22/2019)

08/26/2019

221 NOTICE: Hearing re: Monitor's Report set for Tuesday, 8/27/2019 at 9:30 AM will be held in Courtroom 4 - 9th floor of the Federal Building. (jrs) (Entered: 08/26/2019)

08/27/2019

222 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Hearing re: Monitor's Report held on 8/27/2019. Thomas Castelli and Amanda Strickland Floyd appeared for the Intervenor Plaintiff. R. Mark Glover, Jennie Vee Silk, and Mary Wu Tullis appeared for the Defendant. Edward L. Stanton, III, Independent Monitor also appeared. Mr. Stanton reviewed progress with respect to established goals and the implementation of the public engagement plan. An overview of the Monitoring Team's activities since the April 23, 20219 hearing was also presented. Independent Monitor's sworn witnesses: Rachel LevinsonWaldman; David McGriff. Status Conference is set for Thursday, 11/21/2019 at 10:30 AM before Judge Jon Phipps McCalla. Order to be entered. (Court Reporter: Traci Walker) (jrs) (Entered: 08/27/2019)

08/27/2019

223 SETTING LETTER: A Status Conference is set for Thursday, 11/21/2019 at 10:30 AM before Judge Jon Phipps McCalla. (jrs) (Entered: 08/27/2019)

08/28/2019

224 Minute Entry for proceedings held before Judge Jon Phipps McCalla: In Camera Hearing held on 8/28/2019. Thomas Castelli and Amber Strickland Floyd present for Intervenor Plaintiff. Mark Glover, Jennie Vee Silk, and Mary Tu Willis present for Defendant. Ed Stanton, Independent Monitor, also appeared. Also present were Jim Letten, Deputy Monitor, and Bruce McMullen, City of Memphis Attorney. (Court Reporter: Traci Walker) (jrs) (Entered: 08/28/2019)

09/05/2019 225 ORDER Following Hearing on Report of Monitor, And ORDER Setting Hearing. Signed by Judge Jon Phipps McCalla on September 5, 2019. (mom) (Entered: 09/05/2019)

09/24/2019 226 ORDER on Costs of the Independent Monitor (August). (Attachments: # 1 Invoice)(mom) (Entered: 09/24/2019)

09/25/2019

227 MOTION FOR IMMEDIATE MODIFICATION OF THE KENDRICK CONSENT DECREE by All Defendants. (Attachments: # 1 Memorandum Memorandum of Law in Support of Motion for Immediate Modification of the Kendrick Consent Decree, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I)(Silk, Jennie) Modified on 11/14/2019-Unsealed pursuant to Order-DE# 252 (cdi). (Entered: 09/25/2019)

10/02/2019

228 ORDER TO SHOW CAUSE Why the Transcript From August 27, 2019 In-Camera Conference Should Not be Prepared, Docketed, and Made Available to the Public. Signed by Judge Jon Phipps McCalla on 10/02/2019. (mom) (Entered: 10/02/2019)

10/03/2019

229 ORDER ON TRANSCRIPTS OF IN-CAMERA CONFERENCE. Signed by Judge Jon Phipps McCalla on 10/03/2019. (mm) (Entered: 10/03/2019)

10/09/2019 230 NOTICE of Change of Address by Amanda Strickland Floyd (Floyd, Amanda) (Entered: 10/09/2019)

10/09/2019

231 RESPONSE to Motion re 227 SEALED MOTION FOR IMMEDIATE MODIFICATION OF THE KENDRICK CONSENT DECREE filed by ACLU of Tennessee, Inc.. (Castelli, Thomas) Modified on 11/14/2019Unsealed pursuant to Order-DE# 252 (cdi). (Entered: 10/09/2019)

10/10/2019 232 TRANSCRIPT of Proceedings held on 8/27/2019 before Judge Jon P. McCalla.. (Walker, Traci) Modified on 11/14/2019-Transcript Unsealed pursuant to 11/13/19 Order- 251 (cdi). (Entered: 10/10/2019)

10/15/2019 233 Document Defendant's Sealed Response to Order to Show Cause. (Glover, R.) Modified on 11/14/2019-Unsealed pursuant to OrderDE# 252 (cdi). (Entered: 10/15/2019)

10/15/2019

234 MOTION to Extend Deadline to File Quarterly Search Terms (proposed order submitted) by All Defendants. (Glover, R.) (Entered: 10/15/2019)

10/15/2019 235 Document Plaintiff's Sealed Response to Order to Show Cause. (Castelli, Thomas) Modified on 11/14/2019-Unsealed pursuant to Order-DE# 252 (cdi). (Entered: 10/15/2019)

10/16/2019

236 MOTION FOR LEAVE TO REPLY AND INCORPORATED MEMORANDUM OF LAW - proposed order submitted by All Defendants. (Glover, R.) Modified on 11/14/2019-Unsealed pursuant to Order-DE# 252 (cdi). (Entered: 10/16/2019)

10/17/2019

237 ORDER granting 236 Sealed Motion For Leave to Reply. Signed by Judge Jon Phipps McCalla on 10/17/2019. (mom) (Entered: 10/17/2019)

10/17/2019 238 ORDER granting 234 Motion For Extension of Deadline to File Quarterly Search Terms. Signed by Judge Jon Phipps McCalla on 10/17/2019. (mom) (Entered: 10/17/2019)

10/22/2019 239 Sealed Document Defendant's Response to Opinion and Order, ECF No. 151 Search Terms Used by MPD. (Attachments: # 1 Exhibit A)(Glover, R.) (Entered: 10/22/2019)

10/22/2019

240 ORDER Providing Defendant City of Memphis an Additional 7 Days to File Supplement to Response to Order to Show Cause. Signed by Judge Jon Phipps McCalla on 10/22/2019. (mom) (Entered: 10/22/2019)

10/23/2019 241 ORDER Amending Timeline to Complete Focus-Group Portion of Joint Engagement Plan. Signed by Judge Jon Phipps McCalla on 10/23/2019. (mom) (Entered: 10/23/2019)

10/24/2019

242 ORDER on Costs of Independent Monitor (September). Signed by Judge Jon Phipps McCalla on 10/24/2019. (Attachments: # 1 Invoice)(mom) (Entered: 10/24/2019)

10/29/2019

243 Document Defendant's Sealed Supplemental Response to Order to Show Cause. (Attachments: # 1 Exhibit Ex. A Redacted Transcript)(Glover, R.) Modified on 11/14/2019-Unsealed pursuant to Order-DE# 252 (cdi). (Entered: 10/29/2019)

10/31/2019

244 Document Reply in Support of Motion for Immediate Modification of The Kendrick Consent Decree. (Attachments: # 1 Exhibit Ex A August 21 Letter, # 2 Exhibit Ex B - August 26 Letter, # 3 Exhibit Ex C - Kendrick Complainbt)(Glover, R.) Modified on 11/14/2019-Unsealed pursuant to Order-DE# 252 (cdi). (Entered: 10/31/2019)

11/08/2019 245 TRANSCRIPT of Proceedings held on August 27, 2019 before Judge Jon P. McCalla.. (Walker, Traci) Modified on 11/14/2019-Transcript Unsealed pursuant to 11/13/19 Order- 251 (cdi). (Entered: 11/08/2019)

11/12/2019

246 MOTION for Clarification of the Purpose, Process and the Methodology Related to the Independent Monitor's Focus Groups (proposed order submitted) by City of Memphis, Tennessee. (Glover, R.) (Entered: 11/12/2019)

11/12/2019

247 Notice of Filing Exhibits to Motion for Clarification of the Purpose, Process and the Methodology Related to the Independent Monitor's Focus Groups by City of Memphis, Tennessee. (Attachments: # 1 Exhibit Ex. A to City's Motion for Clarification [ECF 246], # 2 Exhibit Ex. B to City's Motion for Clarification [ECF 246], # 3 Exhibit Ex. C to City's Motion for Clarification [ECF 246])(Glover, R.) Modified on 11/13/2019 to remove "Sealed Motion" text (jae). (Entered: 11/12/2019)

11/13/2019

248 DEFICIENCY NOTICE: Pursuant to Rule 5 of the Federal Rules of Civil Procedure, document 247 SEALED MOTION Notice of Filing Exhibits to Motion for Clarification of the Purpose, Process and the Methodology Related to the Independent Monitor's Focus Groups filed by City of Memphis, Tennessee has been filed. However, the following deficiency has been found: Filer selected the event "Motion" to publish sealed documents. Proper event is "Sealed Document". Please refer to the ECF User Manual and ECF Policies and Procedures. The filer has one business day to correct the deficiency. (jae) (Entered: 11/13/2019)

11/13/2019

249 Sealed Document Notice of Filing Exhibits to City's Motion for Clarification of the Purpose, Process and the Methodology Related to the Independent Monitor's Focus Groups. (Attachments: # 1 Exhibit Ex. A to Motion for Clarification 246 , # 2 Exhibit Ex. B to Motion for Clarification 246 , # 3 Exhibit Ex. C to Motion for Clarification 246 )(Glover, R.) (Entered: 11/13/2019)

11/13/2019 250 ORDER Denying 227 Defendant City of Memphis's Sealed Motion For Immediate Modification of the Kendrick Consent Decree. Signed by Judge Jon Phipps McCalla on 11/13/2019. (MM) (Entered: 11/13/2019)

11/13/2019

251 ORDER Unsealing the Transcript of the August 27, 2019 In-Camera Conference. Signed by Judge Jon Phipps McCalla on 11/13/2019. (MM) (Entered: 11/13/2019)

11/14/2019

252 ORDER Unsealing Filings Related to Order to Show Cause and Sealed Motion for Immediate Modification of the Kendrick Consent Decree. Signed by Judge Jon Phipps McCalla on 11/14/2019. (mom) (Main Document 252 replaced on 11/15/2019) (mom). Modified on

11/15/2019 to correct case number in Order's heading, as well as include attachment to ECF No. 243 omitted in original Order (mom). Modified on 11/15/2019 (mom). (Entered: 11/14/2019)

11/18/2019 253 Order on Costs of the Independent Monitor (October). (Attachments: # 1 Invoice)(mom) (Entered: 11/18/2019)

11/18/2019

254 ORDER DIRECTING PARTIES TO SUGGEST DATES RELATED TO THE CONSENT DECREE MODIFICATION SCHEDULE AND TO ADDRESS OTHER OUTSTANDING MATTERS. Signed by Judge Jon Phipps McCalla on 11/18/2019. (mom) (Entered: 11/18/2019)

11/20/2019

255 NOTICE OF LOCATION: The Status Conference Hearing set for Thursday, 11/21/2019 at 10:30 AM before Judge Jon Phipps McCalla will be held in Courtroom 4 - 9th floor of the Federal Building. (jrs) (Entered: 11/20/2019)

11/21/2019 256 THIRD QUARTERLY REPORT of Independent Monitor. Submitted on 11/20/19. (Entered: 11/21/2019)(aac) (Entered: 11/21/2019)

11/21/2019

257 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Status Conference held on 11/21/2019. Thomas Castelli appeared for the Intervenor Plaintiff. R. Mark Glover, Jennie Vee Silk, and Mary Wu Tullis appeared for the Defendant. Edward L. Stanton, III, Independent Monitor also appeared. Rachel Levinson-Waldman, John Henegan, Jim Letten, David McGriff, and Will Perry also present. Independent Monitor presented an overview of the Monitoring Team's activities since the August 26, 20219 hearing, including tasks and progress toward compliance to Kendrick Consent Decree, requests for authorization, and Monitoring Team's community engagement efforts since August 26, 2019. Information gathered on various federal agencies social media monitoring policies. Independent Monitor's sworn witnesses/proof: Exhibit 1; Rachel Levinson-Waldman; Exhibit 2; David McGriff. Court reviewed deadlines and schedule. Non-Jury Trial/Evidentiary Hearing is set for Wednesday, 6/17/2020 at 9:30 AM before Judge Jon Phipps McCalla. Order to be entered. (Court Reporter: Sandra Vaughn, Alpha Reporting) (jrs) (Entered: 11/21/2019)

11/21/2019

258 Exhibit and Witness List from Status Conference on 11/21/2019. (jrs) (Additional attachment(s) added on 11/22/2019: # 1 Community Forum Handout, # 2 Federal Agency Policies Regarding Use of Social Media) (jrs). (Entered: 11/21/2019)

11/21/2019

259 ORDER FOLLOWING HEARING ON REPORT OF MONITOR. Signed by Judge Jon Phipps McCalla on 11/21/19. (aac) (Entered: 11/21/2019)

11/22/2019 260 NOTICE by City of Memphis, Tennessee of Withdrawal of Appearance and Request for Removal from Service Lists (Glover, R.) (Entered: 11/22/2019)

11/25/2019

261 DEFICIENCY NOTICE: Pursuant to Rule 5 of the Federal Rules of Civil Procedure, document 260 Notice (Other) filed by City of Memphis, Tennessee has been filed. However, the following deficiency has been found: The attorneys will have to get permission from the Judge to be removed from a case. Please refer to the ECF User Manual and ECF Policies and Procedures. The filer has one business day to correct the deficiency. 11/25/2019 (jld). (Entered: 11/25/2019)

11/25/2019 262 MOTION to Withdraw as Attorney (Proposed Order Submitted) by City of Memphis, Tennessee. (Glover, R.) (Entered: 11/25/2019)

11/25/2019

263 ORDER granting 262 Motion for Leave to Withdraw as Counsel of Record. Attorneys Lawrence Laurenzi and Buckner Wellford terminated. Signed by Judge Jon Phipps McCalla on 11/25/19. *TEXT ORDER ONLY* (aac) (Entered: 11/25/2019)

11/26/2019

264 SETTING LETTER: A Telephonic Status Conference is set for Thursday, 1/2/2020 at 9:30 AM before Judge Jon Phipps McCalla. Please follow the Notice of Setting instructions to gain access to the telephonic conference. (jrs) (Entered: 11/26/2019)

12/02/2019 265 Final draft of proposed social-media policy deadline extended to December 20, 2019. Signed by Judge Jon Phipps McCalla on 12/2/19. *TEXT ORDER ONLY*(aac) (Entered: 12/02/2019)

12/06/2019

266 NOTICE by City of Memphis, Tennessee of Filing of Report on Progress of ESI Protocol (Attachments: # 1 Exhibit A)(Glover, R.) (Entered: 12/06/2019)

12/19/2019 267 Sealed Order on Costs of the Independent Monitor (November). (Attachments: # 1 Invoice)(mom) (Entered: 12/19/2019)

12/21/2019

268 NOTICE by City of Memphis, Tennessee of Filing City's Proposed Social Media Policy (Attachments: # 1 Exhibit A)(Glover, R.) (Entered: 12/21/2019)

12/23/2019 269 ORDER EXPANDING SCOPE OF JANUARY 2, 2020 CONFERENCE. Signed by Judge Jon Phipps McCalla on 12/23/2019. (mom) (Entered: 12/23/2019)

12/31/2019 270 NOTICE by City of Memphis, Tennessee City of Memphis's Written Comments Regarding Proposed Social Media Policy (Glover, R.) (Entered: 12/31/2019)

12/31/2019 271 NOTICE by ACLU of Tennessee, Inc. of ACLU of Tennessee, Inc.'s Written Comments on Proposed Social Media Policies (Castelli, Thomas) (Entered: 12/31/2019)

01/02/2020

272 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Telephonic Status Conference held on 1/2/2020. Thomas Castelli and Amber Strickland Floyd appeared for the Intervenor Plaintiff. R. Mark Glover, Jennie Vee Silk, and Mary Wu Tullis appeared for the Defendant. Jennifer Sink appeared for the City. Edward L. Stanton, III, Independent Monitor, also appeared with the following members of the Monitor's team: Will Perry and Rachel Levinson-Waldman. Mr. Stanton presented status report on City of Memphis' Proposed Social Media Policy. Ms. Levinson-Waldman covered the FBI's Social Media Policy. Objections to City's adoption of proposed Social Media Policy heard. Proposed non-jury trial schedule discussed. City's oral request to limit scope of inquiry is granted. Ms. Levinson-Waldman to submit FISA documents by noon on Wednesday, 1/8/2020. Trial date remains the same, 6/17/2020, and now is estimated to last 3 days. No written public comments have been submitted to date. Order to be entered. (Court Reporter: Lisa Mayo) (jrs) (Entered: 01/02/2020)

01/03/2020 273 ORDER FOLLOWING CONFERENCE AND MODIFICATION SCHEDULING ORDER. Signed by Judge Jon Phipps McCalla on 1/3/2020. (mom) (Entered: 01/03/2020)

01/03/2020 274 NOTICE of Appearance by Bruce McMullen on behalf of City of Memphis, Tennessee (McMullen, Bruce) (Entered: 01/03/2020)

01/14/2020 275 Sealed Document Defendant's Response to Opinion and Order re Search Terms Used by MPD. (Attachments: # 1 Exhibit Social Media Searches 10-1-2019 - 12-31-2019)(Glover, R.) (Entered: 01/14/2020)

01/15/2020 276 ORDER ON COSTS OF INDEPENDENT MONITOR. (Attachments: # 1 Invoice)(mom) (Entered: 01/15/2020)

01/17/2020

277 Staff Note: Filer filed incorrect document, instructed to refile. (cbs) MOTION for Leave to Reply to Independent Monitor's January 8, 2020 Letter to the Court and Incorporated Memorandum of Law by City of Memphis, Tennessee. (Attachments: # 1 Exhibit Ex. A to Defendant's Motion for Leave to reply to Independent Monitor's January 8, 2020 Letter to the Court)(Glover, R.) (Entered: 01/17/2020)

01/17/2020

278 MOTION for Leave to Reply to Independent Monitor's January 8, 2020 Letter to the Court and Incorporated Memorandum of Law by City of Memphis, Tennessee. (Attachments: # 1 Exhibit Ex. A Motion for Leave to Reply to Independent Montior's January 8, 2020 Letter)(Glover, R.) (Entered: 01/17/2020)

01/17/2020 279 NOTICE by ACLU of Tennessee, Inc. of filing proposed procedures for public comment period (Castelli, Thomas) (Entered: 01/17/2020)

01/17/2020

280 NOTICE by City of Memphis, Tennessee of Filing Defendant's Proposed Procedure for Written Public Comments (Glover, R.) (Entered: 01/17/2020)

01/22/2020

281 ORDER GRANTING DEFENDANT'S UNOPPOSED MOTION FOR LEAVE TO FILE REPLY TO INDEPENDENT MONITOR'S JANUARY 8, 2020 LETTER TO THE COURT. Signed by Judge Jon Phipps McCalla on 1/22/2020. (mom) (Entered: 01/22/2020)

02/05/2020

282 NOTICE by City of Memphis, Tennessee of Filing of Defendant's Reply to Independent Monitor's January 8, 2020 Letter (Attachments: # 1 Exhibit Ex. A, # 2 Exhibit Ex. B, # 3 Exhibit Ex. C, # 4 Exhibit Ex. D, # 5 Exhibit Ex. E, # 6 Exhibit Ex. F)(Glover, R.) (Main Document 282 replaced on 2/6/2020) (cbs). (Entered: 02/05/2020)

02/18/2020 283 MOTION to Extend Deadline for Expert Information Disclosure and Fact Witness Depositions proposed order submitted by All Defendants. (Glover, R.) (Entered: 02/18/2020)

02/20/2020 284 ORDER ON COSTS OF INDEPENDENT MONITOR (JANUARY 2020). (Attachments: # 1 Invoice)(mom) (Entered: 02/20/2020)

02/26/2020

285 ORDER SETTING TELEPHONIC STATUS CONFERENCE. Signed by Judge Jon Phipps McCalla on 2/26/2020. (mom) (Main Document 285 replaced on 2/26/2020) (mom). Modified on 2/26/2020 to correct typographical error. (Entered: 02/26/2020)

02/27/2020

286 SETTING LETTER: A Telephonic Status Conference is set for Friday, 2/28/2020 at 2:00 PM before Judge Jon Phipps McCalla. To access the telephonic conference parties will dial 888-675-2535 and enter access code 7360481. Please call at least 5 minutes in advance of the conference time. (jrs) (Entered: 02/27/2020)

02/28/2020

287 RESTATED FINAL SCHEDULING ORDER. Signed by Judge Jon Phipps McCalla on 2/28/2020. (mom) (Main Document 287 replaced on 2/28/2020 - improperly filed document replaced). (Entered: 02/28/2020)

02/28/2020

288 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Telephonic Status Conference held on 2/28/2020. Thomas Castell and Amanda Strickland Floyd appeared for the Intervenor Plaintiff. R. Mark Glover, Bruce McMullen, and Jennie Vee Silk appeared for the Defendant. Also present Special Monitor, Edward Stanton, III with Will Perry. Arguments heard re: Defendant's Motion 283 to Extend

Deadline. Court will grant schedule amendments. Trial date and related deadlines remain the same. A Final Amended Scheduling Order will be entered. (Court Reporter: Karla Seely, Alpha Reporting) (jrs) (Entered: 02/28/2020)

03/01/2020 289 MOTION for Hearing by City of Memphis, Tennessee. (Glover, R.) (Entered: 03/01/2020)

03/02/2020

290 ORDER SETTING HEARING. Signed by Judge Jon Phipps McCalla on 3/2/2020. (mom) (Main Document 290 replaced on 3/2/2020 to correct formatting error) (mom). (Entered: 03/02/2020)

03/02/2020 291 SETTING LETTER: A Status Conference is set for Tuesday, 3/17/2020 at 2:30 PM before Judge Jon Phipps McCalla. (jrs) (Entered: 03/02/2020)

03/03/2020 292 NOTICE to Take Deposition of ACLU of Tennessee, Inc. 30(b)(6) by City of Memphis, Tennessee.(McMullen, Bruce) (Entered: 03/03/2020)

03/03/2020 293 AMENDED FINAL SCHEDULING ORDER. Signed by Judge Jon Phipps McCalla on 3/3/2020. (mom) (Entered: 03/03/2020)

03/03/2020 294 NOTICE of Appearance by Stella Marie Yarbrough on behalf of ACLU of Tennessee, Inc. (Yarbrough, Stella) (Entered: 03/03/2020)

03/03/2020 295 ORDER ADOPTING PUBLIC COMMENT PROCEDURE. Signed by Judge Jon Phipps McCalla on 3/3/2020. (mom) (Entered: 03/03/2020)

03/03/2020 296 MOTION TO SEAL DOCUMENTS OR ALLOW REDACTIONS BEFORE DOCKETING PUBLICLY by City of Memphis, Tennessee. (McMullen, Bruce) (Entered: 03/03/2020)

03/13/2020 297 NOTICE by City of Memphis, Tennessee of filing City's Pre-Hearing Brief (McMullen, Bruce) (Entered: 03/13/2020)

03/16/2020

298 RESPONSE in Opposition re 296 MOTION TO SEAL DOCUMENTS OR ALLOW REDACTIONS BEFORE DOCKETING PUBLICLY filed by ACLU of Tennessee, Inc.. (Castelli, Thomas) (Entered: 03/16/2020)

03/20/2020 299 ORDER ON COSTS OF THE INDEPENDENT MONITOR (FEBRUARY 2020) (Attachments: # 1 Invoice)(mom) (Entered: 03/20/2020)

03/30/2020

300 NOTICE by City of Memphis, Tennessee of City's Objection to Monitor's Response to Request for Authority to Use Cameras at COVID Testing Facility (Attachments: # 1 Exhibit A)(McMullen, Bruce) (Entered: 03/30/2020)

03/31/2020 301 ORDER SETTING TELEPHONIC OBJECTIONS HEARING. Signed by Judge Jon Phipps McCalla on 3/31/2020. (mom) (Entered: 03/31/2020)

03/31/2020

302 SETTING LETTER: A Telephonic Objections hearing is set for Wednesday, 4/1/2020 at 3:15 PM before Judge Jon Phipps McCalla. To access the telephonic conference parties will dial 888-675-2535 and enter access code 7360481. Please call at least 5 minutes in advance of the conference time. (jrs) (Entered: 03/31/2020)

04/01/2020

303 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Telephonic Objections Hearing Status Conference held on 4/1/2020. Thomas Castelli, Amanda Strickland Floyd, and Stella Marie Yarbrough appeared for the Intervenor Plaintiff. R. Mark Glover, Bruce McMullen, Jennie Vee Silk, and Mary Wu Tullis appeared for the Defendant. Edward L. Stanton, III, Monitor, also appeared with the following Monitor's team members: Will Perry and Jim Letten. Court inquired as to the status of the Monitor's docketed materials in relationship to the matter currently before the Court. Arguments heard re: City of Memphis' objections to Monitor's response to the City's request to use cameras and/or drones at the City's COVID-19 testing site at the Liberty Bowl/Tiger Lane location. City's sworn witnesses: Jennifer Sink, Chief Legal Officer of the City of Memphis; Don Crowe, MPD Deputy Chief; Keith Watson, MPD Colonel, Traffic Operations. City's testimony concluded. Court heard closing statements given by parties. Court deems record is complete on this matter and will enter an order. (Court Reporter: Traci Walker) (jrs) (Entered: 04/01/2020)

04/02/2020 304 Witness List for Telephonic Objections Hearing on 4/1/2020. Witnesses only - no exhibits submitted. (jrs) (Entered: 04/02/2020)

04/03/2020

305 ORDER ON THE CITY'S OBJECTIONS. Signed by Judge Jon Phipps McCalla on 4/3/2020. (Attachments: # 1 Exhibit A)(mom) (Entered: 04/03/2020)

04/06/2020

306 NOTICE by City of Memphis, Tennessee OF SERVICE OF EXPERT DISCLOSURE AND REPORT TO INTERVENING PLAINTIFF (Attachments: # 1 Exhibit A)(McMullen, Bruce) (Entered: 04/06/2020)

04/14/2020 307 ORDER ON COSTS OF THE INDEPENDENT MONITOR (MARCH 2020) (Attachments: # 1 Invoice)(mom) (Entered: 04/14/2020)

04/14/2020 308 Sealed Document Defendant's Response to Opinion and Order re Search Terms Used by MPD. (Attachments: # 1 Exhibit A)(McMullen, Bruce) (Entered: 04/14/2020)

04/17/2020 309 NOTICE by City of Memphis, Tennessee OF FILING PLEADING REGARDING JOINTLY-PROPOSED MODIFICATIONS TO THE CONSENT DECREE (McMullen, Bruce) (Entered: 04/17/2020)

04/28/2020 310 ORDER SETTING VIDEO HEARING. Signed by Judge Jon Phipps McCalla on 4/28/2020. (mom) Modified on 4/28/2020 (mom). (Entered: 04/28/2020)

04/28/2020

311 ORDER DENYING REQUEST FOR MEDIATOR, GRANTING REQUEST FOR INDEPENDENT MONITOR TO ACT AS MEDIATOR, AND AUTHORIZING MEDIATION. Signed by Judge Jon Phipps McCalla on 4/28/2020. (mom) (Entered: 04/28/2020)

04/28/2020 312 SETTING LETTER: A Skype Video Conference is set for Thursday, 5/14/2020 at 10:00 AM before Judge Jon Phipps McCalla. Instructions will be emailed to parties. (jrs) (Entered: 04/28/2020)

05/07/2020 313 ORDER EXTENDING PUBLIC COMMENT PERIOD. Signed by Judge Jon Phipps McCalla on 5/7/2020. (mom) (Entered: 05/07/2020)

05/13/2020

314 CORRECTED SETTING LETTER: The Skype Video Conference is set for Thursday, 5/14/2020 at 10:00 AM before Judge Jon Phipps McCalla. Instructions will be emailed to parties. (jrs) (Entered: 05/13/2020)

05/14/2020

315 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Skype Video Conference held on 5/14/2020. Independent Monitor Edward Stanton, III appeared with members of Monitor's Team: Jim Letten (Deputy Monitor), Will Perry (Team Counsel), Rachel Levinson-Waldman (Social Media Policy Expert), John Henegan, David McGriff, and Theron Bowman. Thomas Castelli and Amanda Floyd appeared for ACLU. Mark Glover, Bruce McMullen, Jennie Silk, and Mary Wu Tullis appeared for the City of Memphis. Independent Monitor gave an opening statement as did ACLU and City of Memphis. IM and ACLU assert City of Memphis has deviated from Sanction 5 in the Court's Order 152 . City of Memphis sworn witness: Major Darren Goods (MPD). City of Memphis expressed concerns regarding personal identities of officers and sensitivities to compromising investigative information. Closing statements given by IM, ACLU, and City. Court will allow parties to submit a ten page memorandum in support of position in this matter by 5/21/2020. Court invites comments as to ways to improve the Skype video conferencing process. Comments may be submitted directly to the Court or Independent Monitor. (Court Reporter: Cathy Phillips) (jrs) (Entered: 05/14/2020)

05/14/2020 316 ORDER FOLLOWING VIDEO HEARING. Signed by Judge Jon Phipps McCalla on 5/14/2020. (mom) (Entered: 05/14/2020)

05/15/2020 317 Order on the Costs of the Independent Monitor (April 2020). (Attachments: # 1 Invoice)(mom) (Entered: 05/15/2020)

05/17/2020

318 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on May 14, 2020 before Judge Jon P. McCalla. Court Reporter Catherine J. Phillips, Telephone number 901-495-1535.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 5/22/2020. Redaction Request due 6/8/2020. Release of Transcript Restriction set for 8/17/2020. (cjp) (Entered: 05/17/2020)

05/20/2020 319 First Quarterly Report of the Independent Monitor (First Quarter 2020) (Attachments: # 1 Exhibits)(mom) (Entered: 05/20/2020)

05/20/2020

320 ORDER APPROVING THE INDEPENDENT MONITOR'S AUDITING AND COMPLIANCE PROGRAM. Signed by Judge Jon Phipps McCalla on 5/20/2020. (mom) (Entered: 05/20/2020)

05/21/2020 321 NOTICE by City of Memphis, Tennessee of filing Post-Hearing Brief (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(McMullen, Bruce) (Entered: 05/21/2020)

06/02/2020

322 ORDER HOLDING IN ABEYANCE DECISION ON THE CITY OF MEMPHIS'S PROPOSED SOCIAL MEDIA POLICY. Signed by Judge Jon Phipps McCalla on 6/2/2020. (mom) (Entered: 06/02/2020)

06/03/2020 323 TRIAL BRIEF by ACLU of Tennessee, Inc.. (Castelli, Thomas) (Entered: 06/03/2020)

06/03/2020 324 TRIAL BRIEF by City of Memphis, Tennessee. (McMullen, Bruce) (Entered: 06/03/2020)

06/04/2020 325 ORDER SETTING PRE-HEARING CONFERENCE. Signed by Judge Jon Phipps McCalla on 6/4/2020. (mom) (Entered: 06/04/2020)

06/04/2020

326 SETTING LETTER: A Video Pre-Hearing Conference has been set for Wednesday, 6/10/2020 at 10:30 AM before Judge Jon Phipps McCalla. The means of conducting the hearing will be determined and parties will be notified. (jrs) (Entered: 06/04/2020)

06/08/2020

327 NOTICE by City of Memphis, Tennessee Joint Filing of Proposed Modified Consent Decree (Attachments: # 1 Exhibit A - Proposed Modified Consent Decree, # 2 Exhibit B - Redlined Proposed Modified Consent Decree)(McMullen, Bruce) (Entered: 06/08/2020)

06/10/2020

328 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Pre-Hearing Conference held via Skype video conferencing on 6/10/2020. Independent Monitor Edward Stanton, III appeared with members of Monitor's Team: Jim Letten (Deputy Monitor), Will Perry (Team Counsel), Rachel Levinson-Waldman (Social Media Policy Expert), and John Henegan (First Amendment expert). Thomas Castell, Amanda Floyd, and Stella Yarbrough appeared for ACLU. Mark Glover, Bruce McMullen, Jennie Silk, and Mary Wu Tullis appeared for the City of Memphis. Jennifer Sink, City of Memphis Attorney, also present. The Court summarized prior proceedings leading to the Modification Hearing set for Wednesday, June 17, 2020 at 9:30 AM by means of Skype video conferencing. Court reminded parties that the burden of proof to support City's motion for modification of consent degree rests with the City. Modification Hearing organization and procedures were discussed. Parties will submit in advance duplicate copies of documents to be used in the hearing. Monitor's materials will be submitted by midnight of 6/15/2020. ACLU and City of Memphis will submit materials by noon on Tuesday. Proposed exhibits will be filed in advance via the ECF system. Proposed witness list and order will be submitted by end of day June 15, 2020. Out of sequence adjustment may be necessary. Court deemed chat disablement unnecessary at the present time. Mr. Stanton updated the court as to the status of community groups in light of the corona virus pandemic. The Modification Hearing remains set for Wednesday, June 17, 2020 at 9:30 AM. The Skype video conference hearing is estimated to last 2-3 days. (Court Reporter: Traci Walker) (jrs) (Entered: 06/10/2020)

06/10/2020 329 MOTION TO VIEW THE PRE-TRIAL SUBMISSIONS OF THE INDEPENDENT MONITOR proposed order submitted by City of Memphis, Tennessee. (McMullen, Bruce) (Entered: 06/10/2020)

06/11/2020 330 PRETRIAL REPORT OF THE INDEPENDENT MONITOR. (Attachments: # 1 Exhibits)(mom) (Entered: 06/11/2020)

06/11/2020 331 *TEXT ORDER* granting 329 the City's Motion to View the Pretrial Report of the Independent Monitor. The Monitor's Report can be found

at ECF No. 330, and the Exhibits to the Report can be found at 330-1. Signed by Judge Jon Phipps McCalla on 6/11/2020. (mom) (Entered: 06/11/2020)

06/11/2020 332 MOTION to Partially Withdraw Motion for Relief From Judgment or Order proposed order submitted by City of Memphis, Tennessee. (McMullen, Bruce) (Entered: 06/11/2020)

06/12/2020

333 ORDER GRANTING DEFENDANT'S MOTION TO PARTIALLY WITHDRAW ITS MOTION TO MODIFY OR VACATE THE KENDRICK CONSENT DECREE. Signed by Judge Jon Phipps McCalla on 6/12/2020. (mom) (Entered: 06/12/2020)

06/15/2020 334 ORDER ON COSTS OF THE INDEPENDENT MONITOR (May 2020) (Attachments: # 1 Invoice)(mom) (Entered: 06/15/2020)

06/16/2020

335 Sealed Document Notice of Filing Proposed Exhibits Under Seal. (Attachments: # 1 Exhibit PowerPoint Presentation from the Multi Agency Gang Unit, # 2 Exhibit May 20, 2019 HSIN Intel Weekly)(Castelli, Thomas) (Entered: 06/16/2020)

06/16/2020

336 Sealed Document Defendant's Sealed Notice of Filing Hearing Exhibits. (Attachments: # 1 Exhibit Ex. 1. Kendrick Consent Decree, # 2 Exhibit Ex. 2 Proposed Modified Consent Decree, # 3 Exhibit Ex. 3 Redlined Proposed Modified Consent Decree, # 4 Exhibit Ex. 4 City's Proposed Section I, # 5 Exhibit Ex. 5 Daigle Expert Report, # 6 Exhibit Ex. 6 Fusion Center Alerts, # 7 Exhibit Ex. 7 Howard Law Journal Article, # 8 Exhibit Ex. 8 Oklahoma Law Review Article, # 9 Exhibit Ex. 9 2016 Law Enforcement Use of Social Media Survey, # 10 Exhibit Ex. 10 Facebook Community Standards Enforcement, # 11 Exhibit Ex. 11 RFA-TFC Threats to LEAs, # 12 Exhibit Ex. 12 RFA-PSP Symposium 8-21-19 Memo, # 13 Exhibit Ex. 13 RFA-PSP Symposium 8-29-19 Letter, # 14 Exhibit RFA Pan/Tilt/Zoom, # 15 Exhibit Ex. 15 RFA Polling Party, # 16 Exhibit Ex. 16 CH. XIII Sec 13 Body-Worn Video, # 17 Exhibit Ex. 17 MPD Investigations, # 18 Exhibit Ex. 18 John Henegan's Resume, # 19 Exhibit Rachel Levinson-Waldman's Resume, # 20 Exhibit Ex. 20 Ed Stanton's Resume, # 21 Exhibit Ex. 21 Jim Letten's Resume)(McMullen, Bruce) (Entered: 06/16/2020)

06/16/2020 337 NOTICE of Appearance by Gadson William Perry on behalf of Edward L. Stanton, III (Perry, Gadson) (Entered: 06/16/2020)

06/17/2020

338 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Modification hearing held via Zoom video conferencing on 6/17/2020. Independent Monitor Edward L. Stanton, III appeared with members of Monitor's Team: Jim Letten (Deputy Monitor), Will Perry (Team Counsel), Rachel Levinson-Waldman (Social Media Policy Expert), Dr.

Theron Bowman (Police Practices), Dr. Sheila Peters (Community Focus Groups), and David N. McGriff, Sr. Thomas Castelli and Stella Yarbrough appeared for ACLU. Mark Glover, Bruce McMullen, Jennie Silk, and Mary Wu Tullis appeared for the City of Memphis. Independent Monitor gave an opening presentation and statement as did ACLU and City of Memphis. Monitor's sworn witnesses/proof: Rachel Levinson-Waldman; Exhibits 1-6; Dr. Theron Bowman; Exhibits 7-8; David N. McGriff, Sr; Exhibits 9-10; (Exhibit 11 held in reserve for future use); Dr. Sheila Peters; Exhibit 12. City of Memphis sworn witnesses/proof: Edward L. Stanton, III. Court gave closing instructions regarding resumption of hearing. Court adjourned for the day. Modification Hearing via Zoom video conferencing is set for Thursday, 6/18/2020 at 9:00 AM before Judge Jon Phipps McCalla. (Court Reporter: Candace Covey) (jrs) (Entered: 06/18/2020)

06/18/2020

339 Minute Entry for proceedings held via Zoom video conferencing before Judge Jon Phipps McCalla: Modification Hearing held on Thursday, 6/18/2020 (Day 2). Independent Monitor Edward L. Stanton, III appeared with members of Monitor's Team: Jim Letten (Deputy Monitor), Will Perry (Team Counsel), Rachel Levinson-Waldman (Social Media Policy Expert), Dr. Theron Bowman (Police Practices), Dr. Sheila Peters (Community Focus Groups), *John Henegan (Constitutional Law and First Amendment) and David N. McGriff, Sr. Thomas Castelli and Stella Yarbrough appeared for ACLU. Mark Glover, Bruce McMullen, Jennie Silk, and Mary Wu Tullis appeared for the City of Memphis. City of Memphis sworn witnesses/proof continued: Edward L. Stanton, III (City Monitor). Monitor's sworn witnesses/proof: John Henegan; Exhibit 17 *(marked and withdrawn). Monitor's proof concluded. City's sworn witnesses/proof: Director Michael Rallings; Exhibits 18, 19; Deputy Chief Don Crowe; Exhibits 20-22; Eric Daigle; Exhibits 23-*24 (ID Only). Modification Hearing will resume via Zoom video conferencing on Friday, 6/19/2020 at 9:00 AM before Judge Jon Phipps McCalla. (Court Reporter: Candace Covey) (jrs) *Modified on 6/19/2020 (jrs). (Entered: 06/19/2020)

06/19/2020

340 Minute Entry for proceedings held via Zoom video conferring before Judge Jon Phipps McCalla: Modification Hearing held on Friday, 6/19/2020 (Day 3). Independent Monitor Edward L. Stanton, III appeared with members of the Monitor's Team: Jim Letten (Deputy Monitor), Will Perry (Team Counsel), Rachel Levinson-Waldman (Public Policy & Social Media Policy), and John Henegan (Constitutional Law & First Amendment). Thomas Castelli and Stella Yarbrough appeared for ACLU. Mark Glover, Bruce McMullen, Jennie Silk, and Mary Wu Tullis appeared for the City of Memphis. Citys sworn witnesses/proof continued: Director Michael Rallings (MPD) resumed testimony; Major Darren Goods (MPD;) Exhibit 25; Zayid

Saleem (Police Legal Adviser); Exhibit 26; Jennifer Silk (Chief Legal Officer, City of Memphis); Exhibit 27 (sealed); Exhibit 27A. City will continue with sworn witnesses/proof on Monday. The Modification Hearing will continue on Monday, 6/22/2020 at 9:00 AM before Judge Jon Phipps McCalla. (Court Reporter: Catherine Phillips) (jrs) (Entered: 06/19/2020)

06/22/2020

341 Minute Entry for proceedings held via Zoom video conferencing before Judge Jon Phipps McCalla: Modification Hearing held on 6/22/2020 (Day 4). Independent Monitor Edward L. Stanton, III appeared with members of the Monitor's Team: Jim Letten (Deputy Monitor), Will Perry (Team Counsel), Rachel Levinson-Waldman (Public Policy & Social Media Policy), Dr. Theron Bowman (Law Enforcement & Police Practices), John Henegan (Constitutional Law & First Amendment), and David N. McGriff, Sr. (Compliance & Auditing). Thomas Castelli and Stella Yarbrough appeared for ACLU. Mark Glover, Bruce McMullen, Jennie Silk, and Mary Wu Tullis appeared for the City of Memphis. Preliminary Matters: City of Memphis requests adjustment to post-trial brief schedule to five days after transcript receipt. City of Memphis sworn witnesses/proof continued: Eric Daigle resumed testimony; Exhibit 28; Exhibit 29 (ID Only). City of Memphis rests. ACLU Rests. Evidence concluded. Monitor, City of Memphis, and ACLU gave closing arguments. Post-trial briefs will be submitted. Order to be entered. (Court Reporter: Lisa Mayo) (jrs) (Entered: 06/22/2020)

06/22/2020 342 Exhibit and Witness List for Modification Hearing (June 17, 2020 June 22, 2020). (jrs) (Entered: 06/22/2020)
06/25/2020 343 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on June 22, 2020 before Judge Jon P McCalla. Court Reporter Lisa Mayo, Telephone number (901) 495-1537.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to

Request Redaction due 6/30/2020. Redaction Request due 7/16/2020. Release of Transcript Restriction set for 9/23/2020. (Mayo, Lisa) (Entered: 06/25/2020)
06/25/2020 344 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 06/17/20 before Judge Jon P. McCalla. Court Reporter Candace Covey, Telephone number 901-495-1216.
Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.
Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 6/30/2020. Redaction Request due 7/16/2020. Release of Transcript Restriction set for 9/23/2020. (Covey, Candace) (Entered: 06/25/2020)
06/25/2020 345 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 06/18/20 before Judge Jon P. McCalla. Court Reporter Candace Covey, Telephone number 901-495-1216.
Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.
Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 6/30/2020. Redaction Request due 7/16/2020. Release of Transcript Restriction set for 9/23/2020. (Covey, Candace) (Entered: 06/25/2020)

06/26/2020 346 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings before Judge Jon P. McCalla. Court Reporter Catherine J. Phillips, Telephone number 901-495-1535.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 7/1/2020. Redaction Request due 7/17/2020. Release of Transcript Restriction set for 9/24/2020. (cjp) (Entered: 06/26/2020)

06/30/2020 347 ORDER MEMORIALIZING POST-MODIFICATION HEARING BRIEFING SCHEDULE. Signed by Judge Jon Phipps McCalla on 6/30/2020. (mom) (Entered: 06/30/2020)

07/03/2020 348 TRIAL BRIEF Post-Trial Brief by City of Memphis, Tennessee. (McMullen, Bruce) (Entered: 07/03/2020)

07/10/2020 349 TRIAL BRIEF Post Hearing Brief by ACLU of Tennessee, Inc.. (Castelli, Thomas) (Entered: 07/10/2020)

07/10/2020 350 TRIAL BRIEF Post Trial Brief by Edward L. Stanton, III. (Stanton, Edward) (Entered: 07/10/2020)

07/13/2020

351 MOTION for Leave to File Reply Brief (proposed order submitted) by City of Memphis, Tennessee. (McMullen, Bruce) (Entered: 07/13/2020)

07/14/2020 352 ORDER GRANTING DEFENDANT CITY OF MEMPHIS'S MOTION FOR LEAVE TO FILE REPLY BRIEF. Signed by Judge Jon Phipps McCalla on 7/14/2020. (mom) (Entered: 07/14/2020)

07/14/2020

353 Sealed Document Defendant's Response to Opinion and Order re Search Terms Used by MPD. (Attachments: # 1 Exhibit A)(McMullen, Bruce) (Entered: 07/14/2020)

07/15/2020 354 Order on Costs of the Independent Monitor (June 2020) (Attachments: # 1 Invoice)(mom) (Entered: 07/15/2020)

07/17/2020 355 TRIAL BRIEF Reply in Support of Its Post-Trial Brief by City of Memphis, Tennessee. (McMullen, Bruce) (Entered: 07/17/2020)
08/10/2020 356 TRANSCRIPT RELEASE NOTICE:

By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.

Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. Document #318: Release Date 8/17/2020. (cas) (Entered: 08/10/2020)

08/14/2020 357 ORDER ON COSTS OF THE INDEPENDENT MONITOR (July 2020) (Attachments: # 1 Invoice)(mom) (Entered: 08/14/2020)

08/17/2020 358 Sealed Document (Notice of the Independent Monitor's Review of Trial Transcripts). (Stanton, Edward) (Entered: 08/17/2020)

08/18/2020

359 NOTICE OF FILING OF THE CORRECTED OFFICIAL TRANSCRIPT of Proceedings held on 06/17/20 before Judge Jon P. McCalla. Court Reporter Candace Covey, Telephone number 901-4951216.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting

redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 8/24/2020. Redaction Request due 9/8/2020. Release of Transcript Restriction set for 11/16/2020. (Covey, Candace) (Entered: 08/18/2020)

08/18/2020

360 NOTICE OF FILING OF THE CORRECTED OFFICIAL TRANSCRIPT of Proceedings held on 06/18/20 before Judge Jon P. McCalla. Court Reporter Candace Covey, Telephone number 901-4951216.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 8/24/2020. Redaction Request due 9/8/2020. Release of Transcript Restriction set for 11/16/2020. (Covey, Candace) (Entered: 08/18/2020)

08/18/2020

361 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings (Corrected) held on June 19, 2020 before Judge Jon P. McCalla. Court Reporter Catherine J. Phillips, Telephone number 901-495-1535.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 8/24/2020. Redaction Request due 9/8/2020. Release of Transcript Restriction set for 11/16/2020. (cjp) (Entered: 08/18/2020)

08/18/2020

362 NOTICE OF FILING OF CORRECTED OFFICIAL TRANSCRIPT of Proceedings held on June 22, 2020 before Judge Jon P McCalla. Court Reporter Lisa Mayo, Telephone number (901) 495-1537.

Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 8/24/2020. Redaction Request due 9/8/2020. Release of Transcript Restriction set for 11/16/2020. (Mayo, Lisa) (Entered: 08/18/2020)

08/19/2020

363 ORDER ON THE CITY'S NONCOMPLIANCE WITH SANCTION FIVE OF THE OCTOBER 29, 2018 ORDER MEMORIALIZING SANCTIONS, AND ORDER DENYING CITY'S MOTION TO SEAL. Signed by Judge Jon Phipps McCalla on 8/19/2020. (mom) (Main Document 363 replaced on 8/20/2020 to correct typographical error) (mom). (Entered: 08/19/2020)

08/19/2020

364 Independent Monitor's February 28, 2020 Submission to the Court in Connection with Order on the City's Noncompliance with Sanction Five of the October 29, 2018 Order Memorializing Sanctions. (mom) (Entered: 08/19/2020)

08/24/2020 365 Sealed Document City's Objection to Ruling of Special Master. (Attachments: # 1 Exhibit A - Sealed, # 2 Exhibit BSealed)(McMullen, Bruce) (Entered: 08/24/2020)

08/24/2020 366 Sealed Document : Notice of Clarification Regarding the Citys Objection (Sealed ECF No. 365). (Stanton, Edward) (Entered: 08/24/2020)

08/24/2020 367 ORDER DIRECTING RESPONSE TO THE CITY'S OBJECTION TO RULING OF SPECIAL MASTER. Signed by Judge Jon Phipps McCalla on 8/24/2020. (joj) (Entered: 08/24/2020)

08/26/2020

368 COMMUNITY ENGAGEMENT: FOCUS GROUPS ON POLICING AND THE KENDRICK CONSENT DECREE (joj) (Entered: 08/26/2020)

09/02/2020 369 MOTION to Seal /Redact Portions of ECF No. 364 and Memorandum of Law in Support - proposed order submitted by City of Memphis, Tennessee. (McMullen, Bruce) (Entered: 09/02/2020)

09/02/2020 370 Sealed Document Exhibit A to The City's Motion to Redact/Seal (ECF No. 369). (McMullen, Bruce) (Entered: 09/02/2020)

09/08/2020 371 Sealed Document ACLU of Tennessee's Response to the City's Objection to Ruling of Special Master (ECF No. 365). (Castelli, Thomas) (Entered: 09/08/2020)

09/09/2020 372 ORDER SETTING OBJECTIONS HEARING. Signed by Judge Jon Phipps McCalla on 9/9/2020. (joj) (Entered: 09/09/2020)

09/09/2020

373 SETTING LETTER: A Video Objections Hearing is set for Monday, 9/21/2020 at 9:30 AM before Judge Jon Phipps McCalla. Zoom invitations will be sent by email in advance of the hearing. (jrs) (Entered: 09/09/2020)

09/16/2020

374 SEALED RESPONSE to Motion re 369 MOTION to Seal /Redact Portions of ECF No. 364 and Memorandum of Law in Support proposed order submitted filed by ACLU of Tennessee, Inc.. (Castelli, Thomas) (Entered: 09/16/2020)

09/18/2020 375 ORDER ON COSTS OF INDEPENDENT MONITOR (AUGUST 2020). (Attachments: # 1 Invoice) (joj) (Entered: 09/18/2020)

09/21/2020

376 Minute Entry for proceedings held before Judge Jon Phipps McCalla: Video Objections Conference held on 9/21/2020 via Zoom video conferencing. Independent Monitor Edward L. Stanton, III appeared with members of Monitor's Team: Jim Letten (Deputy Monitor), Gadsen W. Perry (Legal Counsel), Rachel Levinson-Waldman (Social Media Policy Expert), Dr. Theron Bowman (Law Enforcement & Police Practices), and John Henegan (Constitutional Law & First Amendment). Thomas Castelli and Stella Yarbrough appeared for

ACLU. Mark Glover, Bruce McMullen, Jennie Silk, and Mary Wu Tullis appeared for the City of Memphis. Court stated nature of the hearing, and addressed briefly City's Motion 369 , signifying the pending scope of redaction. The Court will enter an order. Independent Monitor Edward Stanton, III, gave an opening statement with team introductions. Court heard brief opening statements by Bruce McMullen, City of Memphis, and Tom Castelli, ACLU. City of Memphis sworn witness/proof: Deputy Chief Michael Hardy (MPD, Special Ops). The public Zoom hearing having ended, the Court heard additional closed (sealed) telephonic testimony by Deputy Chief Michael Hardy. The parties in closed testimony hearing were: Independent Monitor Ed Stanton with Monitor Team: Jim Letten (Deputy Monitor), Gadsen W. Perry (Legal Counsel), and John Henegan (Constitutional Law & First Amendment), with Keenan Carter, Marguerite Stringer, and Jennifer Svilar. ACLU counsel, Tom Castelli and Stella Marie Yarbrough; City of Memphis counsel, Bruce McMullen, R. Mark Glover, Jennie Silk, and Mary Wu Tullis with Jennifer Sink (City Attorney) and Saleem Zayid (MPD Attorney). Testimony concluded and hearing adjourned. An Order will be entered. (Court Reporter: Lisa Mayo) (jrs) (Entered: 09/21/2020)

09/21/2020 377 Witness List for Video Objection's Hearing on 9/21/2020. (jrs) (Entered: 09/21/2020)

09/21/2020

378 OPINION AND ORDER. Signed by Judge Jon Phipps McCalla on 9/21/2020. (Attachments: # 1 Modified Kendrick Decree)(joj) (Entered: 09/21/2020)

09/21/2020 379 AMENDED JUDGMENT AND DECREE. "MODIFIED KENDRICK DECREE." Signed by Judge Jon Phipps McCalla on 9/21/2020. (joj) (Entered: 09/21/2020)

10/14/2020

380 MOTION for Extension of Time to File Quarterly Search Terms proposed order submitted by City of Memphis, Tennessee. (McMullen, Bruce) (Entered: 10/14/2020)

10/16/2020 381 ORDER ON COSTS OF INDEPENDENT MONITOR (SEPTEMBER 2020). (Attachments: # 1 Invoice) (joj) (Entered: 10/16/2020)

10/16/2020

382 ORDER GRANTING 380 DEFENDANT'S UNOPPOSED MOTION FOR EXTENSION OF DEADLINE TO FILE QUARTERLY SEARCH TERMS. Signed by Judge Jon Phipps McCalla on 10/16/2020. (joj) (Entered: 10/16/2020)

10/19/2020

383 Sealed Document DEFENDANTS RESPONSE IN COMPLIANCE WITH OPINION AND ORDER, ECF NO. 151 and ECF NO. 363 SEARCH TERMS USED BY MPD. (Attachments: # 1 Exhibit A,

# 2 Exhibit B, # 3 Exhibit C-1, # 4 Exhibit C-2, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(McMullen, Bruce) (Entered: 10/19/2020)

10/20/2020

384 NOTICE OF APPEAL by Elaine Blanchard, Keedran Franklin, Paul Garner, Bradley Watkins. Filing fee $ 505, receipt number ATNWDC3464879. Appeal Record due by 11/4/2020. (Brown, Jacob) (Entered: 10/20/2020)

10/22/2020

385 USCA Case Number 20-6211 for 384 Notice of Appeal filed by Elaine Blanchard, Paul Garner, Keedran Franklin, Bradley Watkins. Civil Case Docketed. Notice filed by Appellants Elaine Blanchard, Keedran Franklin, Paul Garner and Bradley Watkins. Transcript needed: n. (csf) (Entered: 10/22/2020)

11/03/2020

386 NOTICE OF APPEAL by City of Memphis, Tennessee. Filing fee $ 505, receipt number ATNWDC-3475751. Appeal Record due by 11/17/2020. (McMullen, Bruce) (Entered: 11/03/2020)

11/05/2020 387 USCA Case Number 20-6263 for 386 Notice of Appeal filed by City of Memphis, Tennessee. Civil Case Docketed. Notice filed by Appellant City of Memphis, TN. Transcript needed: y. (csf) (Entered: 11/05/2020)

11/09/2020 388 TRANSCRIPT RELEASE NOTICE:

By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.

Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. (re DE# 359 , DE# 360 , DE# 361 , DE# 362 ; release date 11/16/2020) (tlh) (Entered: 11/09/2020)

11/19/2020 389 ORDER ON COSTS OF INDEPENDENT MONITOR (OCTOBER 2020). (Attachments: # 1 Invoice)(joj) (Entered: 11/19/2020)

12/16/2020 390 ORDER ON COSTS OF INDEPENDENT MONITOR (NOVEMBER 2020). (Attachments: # 1 Invoice) (joj) (Entered: 12/16/2020)

01/13/2021

391 MOTION for Continuance and/or Stay of Filing Quarterly Submission of Search Terms in Light of Recent Cybersecurity Issues proposed order submitted by City of Memphis, Tennessee. (Attachments: # 1 Exhibit A)(McMullen, Bruce) (Entered: 01/13/2021)

01/14/2021

392 ORDER GRANTING 391 THE CITY'S UNOPPOSED MOTION FOR CONTINUANCE AND/OR A STAY OF FILING QUARTERLY SUBMISSION OF SEARCH TERMS. Signed by Judge Jon Phipps McCalla on 1/14/2021. (joj) (Entered: 01/14/2021)

01/28/2021

393 MOTION TO HAVE QUARTERLY SEARCH TERM SUBMISSIONS TREATED AS HIGHLY SENSITIVE DOCUMENTS proposed order submitted by City of Memphis, Tennessee. (McMullen, Bruce) (Entered: 01/28/2021)

02/03/2021 394 ORDER ON COSTS OF INDEPENDENT MONITOR (DECEMBER 2020). (Attachments: # 1 Invoice) (joj) (Entered: 02/03/2021)

02/05/2021

395 NOTICE by City of Memphis, Tennessee RESPONSE IN COMPLIANCE WITH ORDERS ON SEARCH TERM SUBMISSIONS SEARCH TERMS FILED SEPARATELY AS HIGHLY SENSITIVE DOCUMENTS (Attachments: # 1 Exhibit C)(McMullen, Bruce) (Entered: 02/05/2021)

02/22/2021 396 ORDER ON COSTS OF INDEPENDENT MONITOR (JANUARY 2021). (Attachments: # 1 Invoice) (joj) (Entered: 02/22/2021)

03/23/2021 397 ORDER ON COSTS OF INDEPENDENT MONITOR (FEBRUARY 2021). (Attachments: # 1 Invoice) (joj) (Entered: 03/23/2021)

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 Case 2:17-cv-02120-JPM-egb Document 1 Filed 02/22/17 Page 1 of 8 PageID 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION _______________________________________________________________________________________________________

ELAINE BLANCHARD, KEEDRAN FRANKLIN, PAUL GARNER and BRADLEY WATKINS,

Plaintiffs,

v.

Civil Action No.

CITY OF MEMPHIS,

_______________________________________________________________________________________________________
COMPLAINT FOR ENFORCEMENT OF ORDER, JUDGMENT AND DECREE, DAMAGES AND OTHER RELIEF _______________________________________________________________________________________________________

COME NOW the Plaintiffs, Elaine Blanchard, Keedran Franklin, Paul Garner and Bradley Watkins, by and through undersigned counsel, and petition this Court for enforcement of the provisions of the Order, Judgment and Decree heretofore entered by this Court in Kendrick, et. al. v. Chandler, Civil Action No. C76-449, and order the Defendant to appear and show what cause exists, if any, to excuse the Defendant’s willful and wanton disregard of the terms and provisions of the Order, Judgment and Decree and why the Defendant should not be adjudicated guilty of contempt of court and punished according to law, for failing or refusing to obey a lawful order of this Court, and for an award of damages to the Plaintiffs as compensation and sanctions for the conduct of the Defendant, with fees and costs and attorneys’ fees taxed to the Defendant and for such other, and further relief as this Court finds appropriate. In support of their Complaint, the Plaintiffs state as follows:

Case 2:17-cv-02120-JPM-egb Document 1 Filed 02/22/17 Page 2 of 8 PageID 2

JURISDICTION AND VENUE
1. This is an action brought to enforce the provisions of the Order, Judgment and Decree concerning First Amendment rights previously entered by this Court in Kendrick, et. al. v. Chandler, Civil Action No. C76-449, in the United States District Court for the Western District of Tennessee on September 14, 1978, and continuing in perpetuity. This Court asserted and retained jurisdiction of the subject matter in that earlier case and judgment orders; and the jurisdictional basis of this action is an extension of such earlier jurisdictional findings and orders.
2. Venue is proper in this United States District Court for the Western District of Tennessee in that all of the unlawful acts, practices and conduct of the Defendants occurred within Memphis, Shelby County, Tennessee. Further, the permanent and binding injunctions in that earlier case were entered in this United States District Court for the Western District of Tennessee and it is proper for the Plaintiffs to seek enforcement of the orders of this Court here. PARTIES
3. Plaintiff, Elaine Blanchard, is a resident of the Memphis, Shelby County, Tennessee and the United States of America. She is a native-born citizen of the United States of America who has never renounced or waived her citizenship. The Plaintiff is a person who is entitled to protection provided by the Order, Judgment and Decree.
4. Plaintiff, Keedran Franklin, is a resident of the Memphis, Shelby County, Tennessee and the United States of America. He is a native-born citizen of the United States of America who has never renounced or waived his citizenship. The Plaintiff is a person who is entitled to protection provided by the Order, Judgment and Decree.

[111285-0120/148870/1]

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Case 2:17-cv-02120-JPM-egb Document 1 Filed 02/22/17 Page 3 of 8 PageID 3

5. Plaintiff, Paul Garner, is a resident of the Memphis, Shelby County, Tennessee and the United States of America. He is a native-born citizen of the United States of America who has never renounced or waived his citizenship. The Plaintiff is a person who is entitled to protection provided by the Order, Judgment and Decree.
6. Plaintiff, Bradley Watkins, is a resident of the Memphis, Shelby County, Tennessee and the United States of America. He is a native-born citizen of the United States of America who has never renounced or waived his citizenship. The Plaintiff is a person who is entitled to protection provided by the Order, Judgment and Decree.
7. Defendant, City of Memphis, is a municipality duly incorporated under the laws of the State of Tennessee, and as such, is a political subdivision of the State of Tennessee, and among its other functions, maintains and operates a law enforcement agency known as the Memphis Police Department. The city is under a duty to operate its police activities in a lawful manner so as to preserve the peace of the city and the rights, privileges and immunities guaranteed and secured to its residents and visitors by the constitution and the laws of the United States and/or the State of Tennessee. The city is subject to suit pursuant to 42 U.S.C. § 1983. The city may be served with this Complaint by serving the City Attorney, Bruce McMullen, at his office located at 125 North Main Street, Suite 336, Memphis, TN 38103. STATEMENT OF THE CASE
8. The Plaintiffs are citizens of the United States and residents of Memphis Tennessee. They bring this Complaint and Petition to Show Cause to vindicate their constitutional and statuary rights under the Constitution of the United States and the State of Tennessee and of the laws of both jurisdictions. Plaintiffs are intended beneficiaries of a

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Case 2:17-cv-02120-JPM-egb Document 1 Filed 02/22/17 Page 4 of 8 PageID 4

Consent Decree preventing the City of Memphis and the Memphis Police Department from conducting surveillance of peaceful protests protected by the First Amendment to the United States Constitution and of the Tennessee Constitution, the Tennessee Human Rights Act 4 T.C.A. Sections 21-101 et. seq. and the Civil Rights Act of 1964, specifically Section 42 U.S.C. § 1983.

FACTUAL STATEMENT

9. On September 14, 1978, this Court entered a Consent Order, Judgment and Decree preventing domestic surveillance of lawful and peaceful protests and exercise of First Amendment rights.
10. The Order, Judgment and Decree has been in full force and effect since its entry and the defendants have at all times had full knowledge of its terms. The Defendant City and the Memphis Police Department, as a condition of the Order, Judgment and Decree, were charged with the responsibility of disseminating the contents of the Order to the members of the Memphis Police Department.
11. The City of Memphis and the Memphis Police Department had notice of and were subject to the Order, Judgment and Decree, and have willfully and wantonly violated its core provisions prohibiting the City of Memphis from engaging in law enforcement activities which interfere with any person’s rights protected by the First Amendment to the United States Constitution, including, but not limited to, the right to speak and dissent freely and to associate privately and publicly for any lawful purpose.
12. The Memphis Police Department has engaged in willful and wanton conduct violating the consent order by video recording participants at lawful protests, including specifically on February 21, 2017, in front of City Hall and by establishing a list which

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prevents and/or chills the Plaintiffs and others from exercising their rights to seek redress of grievances and protest. Such conduct is a violation of the Order, Judgment and Decree. A copy of the Consent Order is attached as Exhibit 1 and incorporated herein as if set forth verbatim. 13. Under section J. Dissemination and Posting of this Decree., of the Order, Judgment and Decree, the “Defendants and the City of Memphis shall familiarize each of its law enforcement personnel with the contents of this Decree in the same manner in which those personnel are instructed about other rules of conduct governing such personnel. In addition, defendants and the City of Memphis shall disseminate and make known the contents of this Decree through publication, public posting and other means.” In spite of the clear language of the Order, the City of Memphis and the Memphis Police Department, have failed to publish the Order on the websites of the City of Memphis or the Memphis Police Department. This omission is a clear and intentional violation of this Court’s Order. 14. In 2014, the Memphis Police Department bought and used a program called Geofeedia. The software shows users a map of their area overlaid with pins showing who is posting what, to what social media platform they are posting, and what they are posting about. According to Memphis Police Department spokesperson Louis Brownlee, the Memphis Police Department used the program for “checking social media for public safety.” 15. On October 13, 2016, a letter was sent to Bruce McMullen, the City Attorney, requesting a formal response and explanation from the city as to how the program was being used by the City of Memphis and the Memphis Police Department, before a Motion to Show Cause was filed.

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16. On October 27, J. Michael Fletcher, Deputy City Attorney, responded by way of a letter stating that he would look into the issues raised in the above referenced and attached letter and would more fully respond to the inquiry. To date, neither Mr. Fletcher, nor anyone else with the City of Memphis has provided a substantive response to the letter of inquiry.
17. The City of Memphis and the Memphis Police Department have created “black lists” consisting of eighty-one citizens who cannot come to City Hall without a police escort to wherever they are going in the building. See Exhibit 2, attached hereto.
COUNT I – Violation of Order, Judgment and Decree 18. Plaintiffs hereby incorporate by reference all preceding paragraphs and all factual
allegations contained therein. 19. The investigation of the Plaintiffs and their inclusion on the “black list” compiled and
maintained by the City of Memphis and the Memphis Police Department violate the Order, Judgment and Decree entered by this Court. 20. The use of the Geofeedia software program by the City of Memphis and the Memphis Police Department violates the Order, Judgment and Decree entered by this Court. 21. The failure of the City of Memphis and/or the Memphis Police Department to publish the Order, Judgment and Decree on the website of the Memphis Police Department is a clear and intentional violation of this Court’s Order. 22. The surveillance and video recording of the Plaintiffs by the City of Memphis and/or the Memphis Police Department is a clear and intentional violation of this Court’s Order and is intended to chill the First Amendment rights of the Plaintiffs and is a clear and intentional violation of this Court’s Order.

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23. The actions of the City of Memphis and/or the Memphis Police Department in connection with their investigation, stigmatization, recording and isolation of the Plaintiffs were undertaken solely and exclusively for the purpose of silencing, harassing and intimidating the Plaintiffs’ First Amendment conduct, and is a clear and intentional violation of this Court’s Order.
CONCLUSION
Unless this Court imposes significant, painful and meaningful penalties for the willful and wanton defiance of this Court’s Order, Judgment and Decree, its Order will continue to be disregarded and the constitutional rights of the Plaintiffs and others will continue to be denied and violated.
WHEREFORE, the Plaintiffs respectfully request this Court for relief as follows: A. For issuance of an order that the City of Memphis show what cause exists, if any, to
excuse the willful ad wanton disregard of the terms and provisions of the Order, Judgment and Decree and violation of the constitutional rights with respect to the Plaintiffs; B. For an award of monetary damages, both compensatory and punitive, to the Plaintiffs and as sanctions for the conduct of the City of Memphis; C. For an Order directing the City of Memphis to dissolve the “black list” immediately and without delay and to prohibit the City of Memphis from creating or maintaining such lists in the future; D. For the entry of an Order herein awarding fees and costs and attorneys’ fees taxed to the City of Memphis;

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E. For the entry of an Order, after a hearing, finding the Defendant to be in contempt of
this Court for the willful and wanton disregard of the restrictions, requirements and
prohibitions imposed by the Order, Judgment and Decree;
F. For such other and further relief as this Court in equity finds to be appropriate.
Respectfully submitted,
s/Bruce S. Kramer APPERSON CRUMP, PLC Bruce S. Kramer (#7472) Scott A. Kramer (# 19462) 6070 Poplar Avenue, 6th Floor Memphis, Tennessee 38119 (901) 756-6300 Attorneys for Plaintiffs

[111285-0120/148870/1]

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 Case 2:17-cv-02120-JPM-egb Document 16 Filed 03/03/17 Page 1 of 8 PageID 222

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ELAINE BLANCHARD, et al. Plaintiffs,
and ACLU of Tennessee, Inc.
Intervener-Plaintiff, v. CITY OF MEMPHIS
Defendant.

) ) ) ) ) ) No. 2:17-cv-02120-jpm-DKV ) ) ) ) ) ) ) ) ) )

INTERVENING COMPLAINT OF ACLU OF TENNESSEE, INC.

Pursuant to Fed. R. Civ. P. 24(c), Plaintiff-intervener ACLU of Tennessee, Inc.

files this Intervening Complaint, showing as follows:

PARTIES

1. The ACLU of Tennessee, Inc. (ACLU-TN) is a nonprofit corporation

organized under the laws of the state of Tennessee. ACLU-TN is a statewide

organization with thousands of members across the state. Its principal office is

located in Nashville, Tennessee.

2. Defendant City of Memphis is a municipality incorporated under the

laws of the state of Tennessee.

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JURISDICTION 3. The original action was brought to enforce the provisions of Order, Judgement and Decree protecting First Amendment rights issued by this Court on September 14, 1978 in the case Kendrick v. Chandler, Civil Action No. C76-449. 4. The original case was brought under 42 U.S.C. § 1983. This court has jurisdiction to hear cases under federal law pursuant 28 U.S.C. § 1331. 5. This court retained jurisdiction “for the purpose of issuing any additional order required to effectuate this Decree.” Order, Judgement and Decree § M [hereinafter, “Decree”]. 6. Venue is proper in this court under 28 U.S.C. § 1391 as Defendant may be found in this district, the Decree was issued by this court and all pertinent events occurred in Memphis, Shelby County, Tennessee.
STATEMENT OF THE CASE 7. Since its founding in 1968, the ACLU-TN has been deeply committed to defending Tennesseans’ right to speak out without hindrance or pressure from government actions and to be free from unconstitutional police surveillance that chills that speech. 8. The ACLU-TN, through its then active West Tennessee chapter, brought suit in 1976 styled Kendrick v. Chandler, Civil Action No. C76-449 based on evidence that the Memphis Police Department (“MPD”) had a practice of gathering and maintaining political intelligence on individuals engaged in constitutionally protected activity.
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9. This suit culminated in the Decree issued on September 14, 1978, which, among other things, prohibits the “The City of Memphis from engaging in law enforcement activities which interfere with any person’s rights protected by the First Amendment to the United States Constitution.” See Decree § A.
10. The Decree generally forbids the Defendant from interfering with any person’s right to free speech. Consent Decree § A.
11. The Decree prohibits the Defendant from engaging in “political intelligence,” defined as “the gathering, indexing, filing, maintenance, storage or dissemination of information, or any other investigative activity, relating to any person’s beliefs, opinions, associations or other exercise of First Amendment rights.” Id. § B(4), C(1).
12. Electronic surveillance includes intercepting, recording, transcribing or otherwise interfering with any communication by means of electronic surveillance for the purpose of political intelligence. Id. § D.
13. Covert surveillance includes employing informants or undercover officers to “infiltrate or pose as a member of any group or organization exercising First Amendment rights.” Id. § F.
14. The decree prevents harassing a person exercising First Amendment rights or engaging in any action which is intended to deter, or may have the effect of deterring, any person from engaging in free speech. Id. § F(1)(2).
15. As an example, the Decree states: The City of Memphis shall not, at any lawful meeting or demonstration, for the purpose of chilling the exercise of First
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Amendment rights or for the purpose of maintaining a record, record the name of or photograph any person in attendance, or record the automobile license plate numbers of any person in attendance. Id. § F(2). 16. The Decree also sets forth requirements when police investigations “may result in the collection of information about the exercise of First Amendment rights, or interfere in any way with the exercise of such rights.” Id. § G(1). 17. The requirements include the review and authorization by the Director of Police. Id. 18. The Director must issue a written authorization for an investigation, not to exceed 90 days. Id. § G(2). 19. The written authorization must specifically find that the investigation does not violate the Decree, the expected collection of information about First Amendment rights is unavoidably necessary, every reasonable precaution has been employed to minimize collection of information about First Amendment activities, and the investigation employs the “least intrusive technique available to obtain the information.” Id. § G(2)(a) – (d). 20. The Decree prohibits the maintenance and dissemination of “personal information about any person unless it is collected in the course and is relevant to such investigation.” Id. § H(1). 21. On February 17, 2017, the Defendant released documents listing people who must be escorted by police when visiting City Hall.
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22. Some of those included on the list had participated in protests, rallies or other free speech activities in the city.
23. Some of those listed had no criminal record or history of causing disturbances at City Hall.
24. Part of the escort list was comprised of an authorization of agency, or “no trespass” list, executed by Mayor Jim Strickland listing persons barred from his privately owned real property.
25. The authorization of agency was signed on January 4, 2017. 26. The no trespass list was executed in response to a protest held at the Mayor’s private residence in December 2016, during which certain protestors allegedly trespassed on the property. 27. The list consists of forty-two names. 28. Many of the individuals on the list were not participants at the protest at the Mayor’s residence in December 2016 and had not been accused of trespassing on his real property. 29. Hand written at the top of the no trespass list is “Also have to be escorted while in City Hall.” 30. The handwritten notation was made by an employee of the Memphis Police Department. 31. Based on allegations in the original complaint and new reports, Defendant, through its police department, has video recorded participants at lawful protests for purposes unrelated to a lawful investigation of criminal conduct.
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32. Defendant has employed software that surveils social media. 33. The software reportedly has been used to track social media posts related to First Amendment activities or collect information unrelated to a lawful criminal investigation.
COUNT I VIOLATION OF THE ORDER, JUDGMENT AND DECREE 34. Defendant’s investigation of individuals included on the escort list who had not participated in the protest at the Mayor’s residence and who had not been involved in any criminal act or disturbance at City Hall violates the Decree. 35. Defendant’s use of this software to track First Amendment activities or collect information unrelated to a lawful criminal investigation violates the Decree. 36. Defendant’s employment of officers, including plain clothes officers, to video record participants at lawful protests or rallies or other free speech events for purposes unrelated to a lawful investigation of criminal conduct violates the Decree. 37. The maintenance of personal information on individuals who participate in free speech activities violates the Decree, including information contained in the escort list or any files compiled on individuals included on the escort list. 38. Any failure to obtain written authorization for investigations into criminal conduct that result in the collection of information about the exercise of First Amendment rights violates the Decree.
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39. Actions taken by Defendant to surveil and collect information on individuals engaged in First Amendment activities has the purpose or effect of deterring individuals from exercising their First Amendment rights.
40. Inclusion of individuals on the escort list without justification beyond their participation in First Amendment activities has the purpose or effect of deterring individuals from exercising their First Amendment rights.
41. All of these actions, separately and combined, represent willful and wanton violation of the Decree.
WHEREFORE, ACLU-TN respectfully requests for the following relief: a. an order of contempt or violation of this Court’s Order Judgment and Decree; b. injunctive relief as necessary to ensure the Defendant’s future compliance with requirements of the Decree; c. an award of costs and attorney fees, as allowed by law; and d. such other and further relief that the Court deems just and proper.
Respectfully submitted, /s/ Thomas H. Castelli_________ Thomas H. Castelli, BPR#024849 Legal Director ACLU Foundation of Tennessee P.O. BOX 120160 Nashville, TN 37212 615.320.7142 tcastelli@aclu-tn.org ATTORNEY FOR PLAINTIFF
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CERTIFICATE OF SERVICE I hereby certify that on March 3, 2017, a true and correct copy of the foregoing document and the above-described exhibits has been served via ECF to: Attorneys for Defendant, City of Memphis Buckner Wellford Thomas Parker Jennie Vee Silk BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. 165 Madison Avenue, Suite 2000 Memphis, Tennessee 38103 bwellford@bakerdonelson.com tommyparker@bakerdonelson.com jsilk@bakerdonelson.com Attorneys for Plaintiffs Bruce S. Kramer Scott A. Kramer APPERSON CRUMP, PLC 6070 Poplar Avenue, 6th Floor Memphis, Tennessee 38119
/s/ Thomas H. Castelli______ Thomas H. Castelli
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 Case 2:17-cv-02120-JPM-egb Document 120 Filed 08/10/18 Page 1 of 35 PageID 4854

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ELAINE BLANCHARD, KEEDRAN FRANKLIN, PAUL GARNER, and BRADLEY WATKINS,
Plaintiffs (dismissed), and ACLU OF TENNESSEE, INC.,
Intervening Plaintiff, v.
CITY OF MEMPHIS, TENNESSEE, Defendant.

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Case No. 2:17-cv-2120-JPM-egb

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ORDER GRANTING IN PART AND DENYING IN PART THE ACLU-TN’S MOTION FOR SUMMARY JUDGMENT
AND
ORDER DENYING THE CITY’S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF CONTEMPT

Before the Court is the Motion for Summary Judgment filed by Intervening Plaintiff ACLU of Tennessee, Inc. (the “ACLU-TN”) on June 18, 2018. (ECF Nos. 79, 107.) Also before the Court is the Motion for Summary Judgment on the Issue of Contempt filed by Defendant City of Memphis, Tennessee (the “City”) on June 18, 2018. (ECF Nos. 81, 106.)
For the reasons discussed below, the Consent Decree’s definition of “political intelligence” does not depend on whether the conduct being investigated was “lawful” in the sense of being allowed under the City’s ordinances and does not depend on whether the City’s
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investigative acts were taken “for the purpose of intimidation or harassment.” Therefore, the City engaged in “political intelligence” as defined and prohibited by the Consent Decree. There is a genuine dispute, however, as to whether the City operated any offices, infiltrated any groups, or disseminated any derogatory or false information about any individuals or groups for the purpose of “political intelligence.” There is also a genuine dispute as to whether the City engaged in any action “for the purpose of, or reasonably having the effect of, deterring any person from exercising First Amendment rights.”
The record shows that, in violation of the Consent Decree, the City failed to review and issue written authorizations for at least some lawful investigations of criminal conduct that “may result in the collection of information about” or “interfere in any way with” the “exercise of First Amendment rights.” There is a genuine dispute, however, as to whether the City has substantially complied with the requirement not to disseminate personal information “collected in the course of a lawful investigation of criminal conduct” to persons outside law enforcement agencies.
Accordingly, the ACLU-TN’s Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART, and the City’s Motion for Summary Judgment is DENIED. The City has violated at least some provisions of the Consent Decree, and therefore, if the ACLU-TN succeeds in establishing standing at trial, the Court will determine the appropriate contempt sanction. That sanction will depend, in part, on how many of the Consent Decree’s provisions the City is determined to have violated and the details of the City’s specific violations.
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I. BACKGROUND
A. The Consent Decree
On September 14, 1976, Chan Kendrick and several other plaintiffs filed a legal action in this Court (the “Kendrick Action”) alleging that they were the subjects of unlawful surveillance by the Domestic Intelligence Unit of the Memphis Police Department (“MPD”). (ACLU-TN’s Resp. to the City’s Statement of Undisputed Material Facts (“Pl.’s Resp. Facts”), ECF No. 108-1 ¶ 1; Complaint in the Kendrick Action, ECF No. 33-1 at 381-83.1) See also Kendrick, et al. v. Chandler, et al., No. 2:76-cv-00449 (W.D. Tenn. 1978). The plaintiffs in the Kendrick Action alleged that the City and the MPD created the Domestic Intelligence Unit in 1965 to investigate and maintain files on citizens engaging in “non-criminal, constitutionally protected activities which were thought to be ‘subversive’ and/or advocating unpopular or controversial political issues.” (Complaint in the Kendrick Action at 385.) The plaintiffs in the Kendrick Action also alleged that the City and the MPD, after their activities were discovered, burned the Domestic Intelligence Unit’s files rather than turning them over to this Court. (See Complaint in the Kendrick Action at 387; Pl.’s Resp. Facts ¶ 1.)
Two years later, on September 14, 1978, this Court entered a consent Order, Judgment and Decree (the “Consent Decree”) in the Kendrick Action. (See Consent Decree, ECF No. 9-1.) In pertinent part, the Consent Decree’s “Statement of General Principles” provides as follows:
The provisions of this Decree prohibit the defendants and the City of Memphis from engaging in law enforcement activities which interfere with any person’s rights protected by the First Amendment to the United States Constitution including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose.
1 All citations to page numbers in docket entries are to the CM/ECF PageID number.
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Furthermore, even in connection with the investigation of criminal conduct, the defendants and the City of Memphis must appropriately limit all law enforcement activities so as not to infringe on any person’s First Amendment rights. (Consent Decree § A.) Accordingly, the Consent Decree (1) prohibits the City from engaging in certain conduct that would impermissibly interfere with the exercise of First Amendment rights,2 (2) regulates the manner in which the City is permitted to interfere with the exercise of First Amendment rights, and (3) requires the City to publicize the Consent Decree and familiarize law enforcement personnel with its requirements. (See id. §§ C-J.)
Specifically, in a section titled “Political Intelligence,” the Consent Decree provides that the City (1) “shall not engage in political intelligence” and (2) “shall not operate or maintain any office, division, bureau or any other unit for the purpose of engaging in political intelligence.” (Consent Decree § C.) The Consent Decree defines “political intelligence” to mean “the gathering, indexing, filing, maintenance, storage or dissemination of information, or any other investigative activity, relating to any person’s beliefs, opinions, associations or other exercise of First Amendment rights.” (Id. § B(4).) The Consent Decree defines “First Amendment rights” to mean “rights protected by the First Amendment to the Constitution of the United States including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose.” (Id. § B(1).) The Consent Decree defines “person” to mean “any individual, group, or organization.” (Id. § B(2).)
2 The Consent Decree addresses four categories of prohibited conduct: (1) political intelligence, (2) electronic surveillance for political intelligence, (3) covert surveillance for political intelligence, and (4) harassment and intimidation. (See Consent Decree §§ C-F.)
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In a section titled “Prohibition Against Electronic Surveillance for Political Intelligence,” the Consent Decree provides that the City “shall not intercept, record, transcribe or otherwise interfere with any communication by means of electronic surveillance for the purpose of political intelligence.” (Consent Decree § D.)
In a section titled “Prohibition Against Covert Surveillance for Political Intelligence,” the Consent Decree provides that the City “shall not recruit, solicit, place, maintain or employ an informant for political intelligence; nor shall any officer, employee or agent of the City of Memphis, for the purpose of political intelligence, infiltrate or pose as a member of any group or organization exercising First Amendment rights.” (Consent Decree § E.)
In a section titled “Harassment and Intimidation Prohibited,” the Consent Decree provides that the City “shall not disrupt, discredit, interfere with or otherwise harass any person exercising First Amendment rights.” (Consent Decree § F(1).) Specifically, the Consent Decree provides that the City “shall not disseminate damaging, derogatory, false or anonymous information about any person for the purpose of political intelligence, or attempt to provoke disagreement, dissention or violence between persons.” (Id.) The Consent Decree also provides that the City “shall not engage in any action for the purpose of, or reasonably having the effect of, deterring any person from exercising First Amendment rights.” (Consent Decree § F(2).) “As an example,” the Consent Decree provides that the City “shall not, at any lawful meeting or demonstration, for the purpose of chilling the exercise of First Amendment rights or for the purpose of maintaining a record, record the name of or photograph any person in attendance, or record the automobile license plate numbers of any person in attendance.” (Id.)
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After prohibiting political intelligence, intimidation, and the other conduct discussed
above, the Consent Decree regulates the manner in which the City is permitted to conduct
investigations that might interfere with the exercise of First Amendment rights. (See id. §§ G-I.)
The Consent Decree also requires the City to publicize the Consent Decree and familiarize law
enforcement personnel with its requirements. (See id. § J.)
Specifically, in a section titled “Criminal Investigations Which May Interfere With the
Exercise of First Amendment Rights,” the Consent Decree provides as follows:
1. Any police officer conducting or supervising a lawful investigation of criminal conduct which investigation may result in the collection of information about the exercise of First Amendment rights, or interfere in any way with the exercise of such First Amendment rights, must immediately bring such investigation to the attention of the Memphis Director of Police for review and authorization.
2. The Director of Police shall review the factual basis for the investigation and the investigative techniques employed. The Director of Police shall issue a written authorization for an investigation for a period not to exceed ninety (90) days only if the Director of Police makes written findings that:
a. The investigation does not violate the provisions of this Decree; and
b. [T]he expected collection of information about, or interference with, First Amendment rights is unavoidably necessary for the proper conduct of the investigation; and
c. Every reasonable precaution has been employed to minimize the collection of information about, or interference with, First Amendment rights; and
d. [T]he investigation employs the least intrusive technique necessary to obtain the information.
3. The Director of Police may authorize an extension of such investigation for an additional period specified by the Director of Police not to exceed ninety (90) days. The Director of Police shall authorize each such extension only if the Director of Police re-evaluates the factual basis for the investigation and the investigative techniques to be employed, and makes current written findings as required in Paragraph 2, above.
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(Consent Decree § G.) In a section titled “Maintenance and Dissemination of Information,” the Consent Decree
provides that the City “shall not maintain personal information about any person unless it is collected in the course of a lawful investigation of criminal conduct and is relevant to such investigation.” (Consent Decree § H(1).) The Consent Decree further provides that the City “shall not disseminate personal information about any person collected in the course of a lawful investigation of criminal conduct to any other person, except that such information may be disseminated to another governmental law enforcement agency then engaged in a lawful investigation of criminal conduct.” (Id. § H(2).)
In a section titled “Restriction on Joint Operations,” the Consent Decree provides that the City “shall not encourage, cooperate with, delegate, employ or contract with, or act at the behest of, any local, state, federal or private agency, or any person, to plan or conduct any investigation, activity or conduct prohibited by this Decree.” (Consent Decree § I.)
Finally, in a section titled “Dissemination and Posting of this Decree,” the Consent Decree provides that the City “shall familiarize each of its law enforcement personnel with the contents of this Decree in the same manner in which those personnel are instructed about other rules of conduct governing such personnel.” (Consent Decree § J.) The Consent Decree further provides that the City “shall disseminate and make known the contents of this Decree through publication, public posting and other means.” (Id.)
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B. The City’s Recent Conduct
1. Expanding the City Hall Escort List
On December 19, 2016, Keedran Franklin and the Coalition of Concerned Citizens (“CCC”) staged a “Die-In” protest on the front lawn of Mayor Jim Strickland’s personal residence.3 (Pl.’s Resp. Facts ¶ 23; City’s Resp. to the ACLU-TN’s Undisputed Statement of Material Facts (“Def.’s Resp. Facts”), ECF No. 110 ¶ 1.) On January 4, 2017, in response to the Die-In protest, Mayor Strickland executed an Authorization of Agency (the “AOA”)4 for his personal residence. (See Pl.’s Resp. Facts ¶ 24, 26.) The AOA empowered the Memphis Police Department (“MPD”) to arrest the persons listed on the AOA should they trespass at Mayor Strickland’s home in the future, without first notifying the mayor. (See id. ¶ 25.) The AOA’s list of names was “populated” by Sergeant Timothy Reynolds of the MPD’s Office of Homeland Security (“OHS”) using Keedran Franklin’s and the CCC’s “associates in fact,” as determined by social media contacts, arrest records, and/or sightings at unlawful assemblies. (See id. ¶ 26; Reynolds Dep., ECF No. 107-54 at 3527.5) Accordingly, the AOA was not limited to individuals who participated in the Die-In at the mayor’s home. (Def.’s Resp. Facts ¶ 5.)
3 For purposes of this Order, the Court assumes that the Die-In protest was, as the City contends, “an act of criminal trespass on private property by masked persons ‘playing dead’ on the Mayor’s lawn, and peering through the Mayor’s windows.” (See ECF No. 110 ¶ 1.)
4 An AOA is an internal police form that (1) notifies officers of known criminal trespassers on a particular property, and (2) empowers the police, without notifying the property owner, to arrest the persons listed on the AOA should they trespass on that property again. (Pl.’s Resp. Facts ¶ 25.) A person included on an AOA should receive notice of that fact. (Id.)
5 Sergeant Reynolds testified that he developed a list of “associates in fact,” meaning “we have articulable places we can go to [confirm] that these people may have something to do with either Keedran Franklin or the CCC. . . . Social media contacts. Previously arrested with. Often seen at unlawful assemblies with[.] [T]hat kind of thing.”
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After Mayor Strickland executed the AOA, Lieutenant Albert Bonner of the MPD added the persons listed on the AOA to a pre-existing City Hall Escort List (the “Escort List”). (Pl.’s Resp. Facts ¶ 28.) The Escort List predated the Strickland administration and contained the identifying information of individuals who were known to have engaged in disruptive conduct or to have expressed a willingness to commit disruptive acts at City Hall.6 (Id. ¶ 27.) Individuals whose names are on the Escort List are allowed to enter City Hall, but they are required to identify where they are going and who they intend to see. (Id.) They might also require an escort while in City Hall. (Id.) The parties dispute whether any of the individuals listed on the mayor’s AOA were actually subjected to an escort through City Hall. (See id. ¶ 31, 33.)
2. Monitoring and Tracking Protest Activity
The MPD participates in the federal Joint Terrorism Task Force. (Pl.’s Resp. Facts ¶ 35.) Related to that participation, the MPD monitors social media accounts through the OHS. (See id. ¶ 36.) Prior to 2016, the OHS’s main focus was to address “isometric threats to the public” after the September 11 attacks. (See id. ¶ 37.) As early as 2016, however, the OHS began to monitor social media accounts related to certain high-profile protest activities. (See id. ¶ 38, 39.)
Sergeant Reynolds has provided a sworn affidavit stating that he joined the OHS in 2015. (Reynolds Aff., ECF No. 115-2 ¶ 11.7) Sergeant Reynolds asserts that, as part of his earlier work at the MPD’s Organized Crime Unit, he created an online alias to aid in undercover
6 Sergeant Reynolds “compiled and sent the driver’s license photos of the persons recently added to the Escort List to Lt. Bonner for inclusion in the City Hall Security Book.” (Def.’s Resp. Facts, ECF No. 110 ¶ 8.)
7 Sergeant Reynolds’s affidavit was initially submitted to the Court for in camera review, but following an agreement by the parties, the affidavit was filed unsealed with some redactions. (See ECF Nos. 95, 105, 115.)
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investigations. (Id. ¶ 12.) Sergeant Reynolds asserts that, after joining the OHS in 2015, he used his preexisting online alias “to monitor social media commentary on the subject of law enforcement shootings and public reaction to them.” (Id. ¶ 13.) Sergeant Reynolds asserts that, beginning in 2016, “after an eruption of violent protests around the country in response to several officer-involved shootings in other jurisdictions” and after “a large group of protestors shut down the I-40 bridge to Arkansas,” Sergeant Reynolds “increasingly focused his intelligence gathering and investigations on potentially large protests that might occur in the Memphis region.” (Id. ¶¶ 15, 16.) Sergeant Reynolds asserts that, through his online alias, he was eventually “accepted as a friend” by several activists in the Memphis area and “invited into a private [Facebook] group” consisting of activists who discussed disruptive and/or unlawful acts against the Memphis Zoo. (See id. ¶¶ 17-19.)
In addition to investigating activists through social media, the OHS created and maintained a database of protests, demonstrations, and flash mobs that took place in the Memphis area during 2016 and 2017 (the “Database”). (See Def.’s Resp. Facts ¶ 26; Database, ECF No. 107-18.) The Database tracked the date, time, location, and approximate crowd size of various events, as well as whether each event had received a permit, implicated critical infrastructure, or resulted in any damage. (See id.) The Database also tracked the “Protest Group” and/or “Cause” associated with each event, as well as the “Key Personnel” who organized the event. (See id.) Director Rallings testified that he directed the OHS to create the Database for budgetary purposes related to overtime spending on protests. (See Rallings Dep., ECF No. 106-5 at 2759-60.)
At least “occasionally,” OHS officers were physically present at protest events. (See Def.’s Resp. Facts ¶ 48.) Major Stephen Chandler testified that, whether from the OHS or
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another office, the MPD “would always have somebody there, be it a uniform presence or somebody that was in a plain clothes presence.” (See Chandler Dep., ECF No. 107-50 at 3435.) Major Chandler testified that the MPD’s plainclothes officers “would take photographs of what was going on to give people an idea of the size of the crowd, what the crowd was doing” and would also “identify participants that were there.” (See id.)
The OHS prepared PowerPoint presentations about certain protest events. (Def.’s Resp. Facts ¶ 31.) For example, the Blue Suede Shoes PowerPoint discussed three 2016 protests at which individuals were arrested, and the All Shook Up PowerPoint laid out a “Plan of Action” to prevent the CCC from disrupting Elvis Presley’s birthday celebration at Graceland. (See ECF Nos. 107-19, 107-20.) Both PowerPoints included photographs of Keedran Franklin and individuals “closely associated with” him, including Paul Garner. (See id.) The Blue Suede Shoes PowerPoint included several other activists’ photographs and arrest information. (See ECF No. 107-19 at 3213-26.) The All Shook Up PowerPoint included a list of the “causes” the CCC was known to protest, including “Free Palestine,” “Fight for $15,” “Solidarity March,” and “Mayor’s house.” (See ECF No. 107-20 at 3237.) The Blue Suede Shoes PowerPoint stated that the MPD’s “goal is to provide public safety for those individuals that wish to voice their opinions and concerns.” (ECF No. 107-19 at 3208.)
On some occasions, the OHS requested assistance from the MPD’s Real Time Crime Center (“RTCC”) in OHS investigations. (See Wilburn Dep., ECF No. 107-55 at 3542.) The RTCC monitors a live feed from a network of over one thousand fixed and mobile cameras around Memphis. (See Def.’s Resp. Facts ¶ 36.) Accordingly, the OHS sometimes requested the RTCC’s assistance in “doing camera monitoring” during various public events. (See Wilburn Dep., ECF No. 107-55 at 3543.) The RTCC has monitored its network of cameras in
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connection with protest activities in Memphis, but it also monitors its cameras in circumstances unrelated to protests. (See Def.’s Resp. Facts ¶ 36.)
In addition to monitoring its network of cameras, the RTCC uses computer software applications known as “social media collators”—including two applications called “Geofeedia” and “NC4”—to monitor publicly available online “chatter” across social media platforms. (See Def.’s Resp. Facts ¶ 37.) The RTCC has used social media collators to monitor online chatter about protest activities in Memphis, but it has also used social media collators in circumstances unrelated to protests. (See id.) The RTCC has collected and circulated social media posts related to Black Lives Matter as well as other groups, including the Ku Klux Klan. (See id. ¶ 41.) The RTCC has reported the results of its social media monitoring to the OHS. (Id. ¶ 39.)
Between June 2016 and March 2017, the MPD circulated Joint Intelligence Briefings (“JIBs”) within and outside the MPD. (See Def.’s Resp. Facts ¶¶ 25, 16-17.) The JIBs focused on four categories of information: (1) “police shootings/deaths,” (2) “riots/protests,” (3) “Black Lives Matter,” and (4) “officer safety.” (See Def.’s Resp. Facts ¶ 25; Chandler Dep., ECF No. 110-4 at 4272.) Within the MPD, the JIBs were circulated to police leadership, communication supervisors, and several internal MPD offices, including the RTCC. (Def.’s Resp. Facts ¶ 16.) Outside the MPD, the JIBs were circulated to regional law enforcement officials and certain members of the Memphis community, including employees of the U.S. Department of Justice, Tennessee Department of Homeland Security, Tennessee Valley Authority, Shelby County Sherriff’s Office, Shelby County Schools, FedEx, AutoZone, and St. Jude. (See id. ¶ 17.)
With respect to “police shootings/deaths,” the JIBs circulated news articles reporting on violent attacks against police. For example, one JIB contained a link to a news article under the
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heading: “Saturday, July 9, 2016—Five Dallas, Texas Officers killed by sniper type attack during a BLM protest.” (ECF No. 107-12 at 3176.) Another JIB contained a link to a news article under the description: “Wednesday, August 3, 2016 Thurmont, Maryland—Someone detonated a pipe bomb on the hood of a Thurmont Police Department (TPD) cruiser.” (ECF No. 107-9 at 3157.) A third JIB circulated information about a murdered police officer’s funeral. (See ECF No. 107-15 at 3194.)
With respect to “officer safety,” the JIBs circulated information relating to potential threats against police. For example, the JIBs summarized “specific threats to law enforcement on social media” that had been discovered using social media collators. (See, e.g., ECF No. 107-10 at 3171, ECF No. 107-12 at 3179.) The JIBs also discussed threats to law enforcement discovered through other means, such as a partially-corroborated “tip that [a certain individual] was trying to recruit people in Memphis to recreate a Dallas, Texas style shooting in Memphis.” (ECF No. 110-5 at 4283.)
With respect to “riots/protests” and/or “Black Lives Matter,” the JIBs circulated information about various planned events in the Memphis area. (See, e.g., ECF No. 107-10 at 3162-69.) For example, the July 8, 2016 “Post Dallas Sniper” JIB circulated information about several protests scheduled during July 2016. (See id.) That JIB included images of social media pages. (See id.) For each event, the JIB stated whether a permit had been requested and/or approved. (See id.)
Some JIBs included the names and photographs of individual activists. (See, e.g., ECF Nos. 107-9, 107-16.) For example, the August 5, 2016 JIB stated: “The following individuals have a rally or demonstration planned in the area of Graceland during Elvis Week” and listed the
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names, photographs, and links to the Facebook pages of Aaron Lewis, Frank Gibson, and Keedran Franklin. (See ECF No. 107-9 at 3158-59.) That JIB further stated that the “MPD/OHS” contacted Frank Gibson and Keedran Franklin and “reminded [them] that [they] would need to apply for a permit if [they were] planning an upcoming rally for over 25 participants.” (Id. at 3159.)
Some JIBs circulated information about gatherings on private property, including churches. For example, the July 8, 2016 JIB disseminated information about a panel discussion at the Abyssinian Missionary Baptist Church.8 (See ECF No. 107-10 at 3168.) Similarly, the February 8, 2017 JIB circulated information about a “Black Lives Matter Memphis Chapter . . . meeting at Pilgrim Rest Baptist Church.” (See ECF No. 107-14 at 3190.)
Finally, some JIBs circulated information about events that do not appear to be related to “Black Lives Matter” or to qualify as “riots/protests.” For example, the August 5, 2016 JIB circulated information about an event “to hand out back packs and school supplies” and the February 8, 2017 JIB circulated information about an event called “Black Owned Food Truck Sunday.” (See ECF No. 107-9 at 3160; ECF No.107-14 at 3191.)
3. “Review and Authorization” of Criminal Investigations
In 2010, the MPD posted the Consent Decree on its internal website, which is known as the “Kiosk.” (Pl.’s Resp. Facts ¶ 5; Def.’s Resp. Facts ¶ 67; see also Kiosk Screenshot, ECF
8 The relevant JIB contains an image of a social media page describing an event titled “Reshaping the Narrative: The Social Construction of Violence in Black Communities.” (ECF No. 107-10 at 3168.) The social media page listed the names of one “Moderator” and several “Panelists.” (Id.) Below the image of the social media page, the relevant JIB stated that “[t]he official #BlackLivesMatterMemphis is staging an event at Abyssinian Missionary Baptist Church . . . on Saturday, July 16, 2016 from 2:00-4:00. . . .” (Id.)
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No. 107-45 at 3366-67.) On December 20, 2010, the provisions of the Consent Decree were also
adopted as MPD Department Regulation 138. (Pl.’s Resp. Facts ¶ 5.) That regulation provides:
DR 138 POLITICAL INTELLIGENCE
The Memphis Police Department and the City of Memphis do not engage in political intelligence. No member shall intercept, record, transcribe or otherwise interfere with any communications by means of electronic or covert surveillance for the purpose of political intelligence gathering.
No member shall engage in any action or disseminate damaging, derogatory, false or anonymous information about any person which will deprive any individual of their First Amendment Rights; nor will any member encourage, cooperate with, or contract with any local, state, federal or private agency to plan or conduct any investigation involving political intelligence.
Any member conducting or supervising a lawful investigation of criminal conduct . . . in which the investigation may result in the collection of information about the exercise of First Amendment Rights, or interfere in any way with the exercise of such First Amendment Rights must immediately bring such information to the attention of the Director of Police Services for review and authorization. If approved, the investigation will not exceed more than ninety (90) calendar days. An extension may be granted by the Director for an additional ninety (90) days if necessary.
The regulations for this DR are in accordance with the judgment and decree for Civil Case 76-449 (which can be found on the opening page of the MPD Kiosk website).
(ECF No. 107-46 at 3376.)
Director Rallings testified that he does not recall issuing any written authorizations for
any criminal investigations. (See Rallings Dep., ECF No. 107-53 at 3489 (“Q: Do you know
whether or not you’ve ever issued a written authorization for an investigation as described in
[Section G of the Consent Decree]? . . . THE WITNESS: “I don’t recall . . . getting any written
authorization for a criminal investigation.”).) “It is undisputed that Director Rallings does not
recall personally conducting reviews and authorizations under DR 138.” (Def.’s Resp. Facts
¶ 69.)
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C. This Action
On February 22, 2017, Elaine Blanchard, Keedran Franklin, Paul Garner, and Bradley Watkins (collectively, the “Blanchard Plaintiffs”) brought this action to enforce the Consent Decree against the City. (ECF No. 1.) The Blanchard Plaintiffs alleged that the City violated the Consent Decree in a number of ways, including (1) by creating the Escort List, and (2) using social media collators to surveil citizens’ social media postings. (See id. ¶¶ 14, 17.)
On March 1, 2017, the City filed a Motion to Dismiss the Blanchard Plaintiffs’ Complaint, arguing that the Blanchard Plaintiffs lacked standing to enforce the Consent Decree because they were not parties to it. (ECF No. 8.) On March 3, 2017, the ACLU-TN intervened in this action as a plaintiff. (ECF No. 16.) Like the Blanchard Plaintiffs, the ACLU-TN alleged that the City violated the Consent Decree by creating the Escort List and using social media collators. (See ECF No. 16 at 225-26.) The ACLU-TN also alleged that it was an original party to the Consent Decree. (ECF No. 16 ¶ 8.)
On March 8, 2017, the City filed a Motion to Dismiss Plaintiff’s Complaint, arguing that, like the Blanchard Plaintiffs, the ACLU-TN was not a party to the Consent Decree. (ECF No. 22.) On June 30, 2017, the Court dismissed the Blanchard Plaintiffs from this action after determining that, as non-parties to the Consent Decree, they lacked standing to enforce it. (ECF No. 41.) The Court determined, however, that the ACLU-TN had standing to enforce the Consent Decree as the likely successor in interest to an original party to the Consent Decree. (See id.)
On June 18, 2018, the ACLU-TN filed the instant Motion for Summary Judgment. (ECF No. 79.) The same day, the City filed a Motion for Summary Judgment on the Issue of Standing
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and the instant Motion for Summary Judgment on the Issue of Contempt. (ECF Nos. 80, 81.) On July 24, 2018, after reaching an agreement to unseal their motions and related documents, the parties filed unsealed versions of their motions for summary judgment on the issue of contempt.9 (ECF No. 106, 107.) On July 25, 2018, the parties filed unsealed responses and replies. (ECF Nos. 108-11, 113, 114.)
On July 30, 2018, the Court denied the City’s Motion for Summary Judgment on the Issue of Standing. (ECF No. 117.) The Court denied that motion after determining that the there is a genuine factual dispute as to whether the ACLU-TN is an original party to the Consent Decree, and if not, whether the ACLU-TN is the successor in interest to an original party to the Consent Decree. (See id.)
II. LEGAL STANDARD
A. Summary Judgment
A party is entitled to summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ for purposes of summary judgment if proof of that fact would establish or refute an essential element of the cause of action or defense.” Bruederle v. Louisville Metro Gov’t, 687 F.3d 771, 776 (6th Cir. 2012). When considering a motion for summary judgment, a court is “required to view the facts in the light most favorable to the nonmoving party, and to draw all reasonable inferences in their favor.” Gillis v. Miller, 845 F.3d 677, 694 (6th Cir. 2017); see also United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (“On
9 On July 23, 2018, after requiring the parties to file unsealed versions of certain documents, the Court granted the parties’ joint oral motion to unseal their remaining documents and terminated their motions to seal those documents as moot. (See ECF Nos. 101, 105; see also ECF Nos. 77, 78, 83, 89, 94, 98, 103.)
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summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.”)
“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts” are to be done at trial, not on a motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The decisive “question is whether ‘the evidence presents a sufficient disagreement to require [a trial] or whether it is so one-sided that one party must prevail as a matter of law.’” See Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838, 843 (6th Cir. 2015) (quoting Liberty Lobby, 477 U.S. at 251-52).
“The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact.” Mosholder v. Barnhardt, 679 F.3d 443, 448 (6th Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “To support its motion, the moving party may show ‘that there is an absence of evidence to support the nonmoving party’s case.’” Id. (quoting Celotex, 477 U.S. at 325.)
“Once the moving party satisfies its initial burden, the burden shifts to the nonmoving party to set forth specific facts showing a triable issue of material fact.” Mosholder, 679 F.3d at 448-49; see also Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “When the non-moving party fails to make a sufficient showing of an essential element of his case on which he bears the burden of proof, the moving parties are entitled to judgment as a matter of law and summary judgment is proper.” Chapman v. UAW Local 1005, 670 F.3d 677, 680 (6th Cir. 2012). Conclusory allegations, unsupported by specific evidence, cannot establish a genuine factual dispute sufficient to defeat a motion for summary judgment. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 902 (1990); see also Fed. R. Civ. P.
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56(e). Similarly, statements contained in an affidavit that are “nothing more than rumors, conclusory allegations and subjective beliefs” are insufficient. See Mitchell, 964 F.2d at 584-85. Additionally, “a mere ‘scintilla’ of evidence in support of the non-moving party’s position is insufficient to defeat summary judgment; rather, the non-moving party must present evidence upon which a reasonable [trier of fact] could find in her favor.” Tingle v. Arbors at Hilliard, 692 F.3d 523, 529 (6th Cir. 2012) (quoting Liberty Lobby, 477 U.S. at 251).
To show that a fact “cannot be or is genuinely disputed,” each party must cite to “particular parts of materials in the record” or show that the other party’s cited materials do not establish the presence or absence of a genuine factual dispute. Fed. R. Civ. P. 56(c)(1); see also Bruederle, 687 F.3d at 776. “The court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). “[I]t is not the district court’s duty ‘to search the entire record to establish that it is bereft of a genuine issue of material fact.’” Wimbush v. Wyeth, 619 F.3d 632, 639 (6th Cir. 2010) (quoting St. v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989)).
B. Civil Contempt
“A court’s ability to issue injunctions, and then enforce those injunctions with a finding of contempt, springs from the court’s inherent equitable powers.” Innovation Ventures, LLC v. N2G Distrib., Inc., 763 F.3d 524, 544 (6th Cir. 2014) (citing Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)). Civil contempt sanctions serve two purposes: “to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained.” United States v. United Mine Workers of Am., 330 U.S. 258, 303-04, (1947); see also Skyros, Inc. v. Mud Pie, LLC, No. 16-cv-2255-STA-tmp, 2016 WL 4031366, at *4 (W.D. Tenn. July 26,
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2016). “The district court has inherent authority to fashion the remedy for contumacious conduct.” Liberte Capital Grp., LLC v. Capwill, 462 F.3d 543, 557 (6th Cir. 2006).
The plaintiff in a civil contempt proceeding bears the burden of proving by clear and convincing evidence that the defendant “violated a definite and specific order of the court requiring [the defendant] to perform or refrain from performing a particular act or acts with knowledge of the court’s order.” Rolex Watch U.S.A., Inc. v. Crowley, 74 F.3d 716, 720 (6th Cir. 1996) (quoting N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 591 (6th Cir. 1987)). “There is no requirement to show intent beyond knowledge of the order.” CFE Racing Prod., Inc. v. BMF Wheels, Inc., 793 F.3d 571, 598 (6th Cir. 2015) (citing In re Jaques, 761 F.2d 302, 306 (6th Cir. 1985)).
To support a finding of contempt, a court’s order must be “clear and unambiguous.” Liberte Capital, 462 F.3d at 550-51 (quoting Grace v. Ctr. for Auto Safety, 72 F.3d 1236, 1241 (6th Cir. 1996)). “Ambiguities must be resolved in favor of the party charged with contempt.” Id. at 551. “Good faith, however, is no defense for failure to comply with a court order enjoining certain conduct.” Peppers v. Barry, 873 F.2d 967, 968 (6th Cir. 1989) (citing TWM Mfg. Co. v. Dura Corp., 722 F.2d 1261 (6th Cir. 1983); In re Crystal Palace Gambling Hall, Inc., 817 F.2d 1361, 1365 (9th Cir. 1987)).
If the plaintiff in a civil contempt proceeding shows that the defendant violated an unambiguous court order with knowledge of the order’s existence, “the burden shifts to the contemnor who may defend by coming forward with evidence showing that he is presently unable to comply with the court’s order.” Elec. Workers Pension Tr. Fund of Local Union #58 v. Gary’s Elec. Serv. Co., 340 F.3d 373, 379 (6th Cir. 2003) (citing United States v. Rylander,
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460 U.S. 752, 757 (1983)). Although good faith “is no defense for failure to comply with a court order enjoining certain conduct,” a defendant can defend against a contempt claim by showing that it “took all reasonable steps within [its] power to comply with the court’s order.” See Peppers, 873 F.2d at 968-69; see also Glover v. Johnson, 934 F.2d 703, 708 (6th Cir. 1991).
Additionally, some courts have held that “substantial compliance with a court order is a defense to an action for civil contempt.” See, e.g., Gen. Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1379 (9th Cir. 1986). Other courts, however, have held that “[s]ubstantial compliance is not a defense to a contempt motion.” See, e.g., Wyndham Vacation Resorts, Inc. v. TOA, LLC, No. 3:09-CV-0899, 2013 WL 146087, at *3 (M.D. Tenn. Jan. 11, 2013) (citing Roslies-Perez v. Superior Forestry Serv., Inc., 652 F. Supp. 2d 887, 897 (M.D. Tenn. 2009)).
In Peppers,10 the Sixth Circuit seemed to endorse the view that compliance with a court order need only be “substantial,”11 noting that “the record shows that the defendants took all reasonable steps to achieve substantial compliance with the district court’s injunction.” 873 F.2d at 969. Indeed, the dissent in Peppers, which agreed with the majority’s contempt analysis but not its “improper appellate factual determination,” specifically mentioned a “‘substantial compliance’ or ‘all reasonable means to comply’ legal standard.” 873 F.2d at 969 (Ryan, J., dissenting). Accordingly, the better view appears to be that, if the plaintiff in a civil contempt proceeding shows that the defendant violated a court order with knowledge of the order, it is the
10 The Sixth Circuit affirmed the district court’s finding that the defendants were not in contempt, but “not for the reasons given in [the district court’s] conclusion,” which were based on the district court’s finding that the defendants made a good faith effort to comply with the relevant court order. See Peppers, 873 F.2d at 969.
11 Moreover, the ACLU-TN and the City agree that a defendant’s compliance with a court order must only be “substantial.” (See ECF No. 107-1 at 3066; ECF No. 112 at 4523.)
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defendant’s burden to show that it “took all reasonable steps to achieve substantial compliance” with the court order. See Peppers, 873 F.2d at 969.
III. ANALYSIS
A. The Consent Decree’s definition of “political intelligence” does not depend on whether the conduct being investigated was “lawful” in the sense of being allowed under the City’s ordinances and does not depend on whether the City’s investigative acts were taken “for the purpose of intimidation or harassment.”
The City argues that the Consent Decree’s prohibition against “political intelligence” should be narrowly interpreted to apply only to actions the City took “for the purpose of intimidation or harassment” of a person or group engaging in the “lawful exercise” of First Amendment rights. (See ECF No. 106-1 at 2730.) In support of this position, the City points to (1) the context of the Kendrick Action, in which the plaintiffs alleged that the purpose of the Domestic Intelligence Unit’s collection, maintenance, and dissemination of information about citizens’ political activities was to “harass and intimidate” them; (2) the Consent Decree’s definition of “First Amendment rights,” which ends with the phrase “for any lawful purpose”; and (3) a case from the Southern District of New York in which the district court interpreted a consent decree’s prohibition against the “investigation of political activity”12 to apply only to police actions “undertaken for the purpose of learning about citizens’ exercise of rights,” especially through “surreptitious methods.” (See id. at 2728-31; ECF No. 112 at 4524-25.) See
12 The term “investigation” was defined as “police activity undertaken to obtain information or evidence.” Handschu v. Special Servs. Div., 737 F. Supp. 1289, 1301 (S.D.N.Y.), amended, 838 F. Supp. 81 (S.D.N.Y. 1989). The term “political activity” was defined as the “exercise of a right of expression or association for the purpose of maintaining or changing governmental policies or social conditions.” Handschu, 737 F. Supp. at 1301.
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also Handschu v. Special Servs. Div., 737 F. Supp. 1289, 1301 (S.D.N.Y.), amended, 838 F.
Supp. 81 (S.D.N.Y. 1989).
Accordingly, the City argues that “[i]nvestigations into criminal conduct do not violate
the Consent Decree, nor does law enforcement’s viewing of social media posts”:
Despite the uncontroverted fact that MPD has not and does not engage in ‘political intelligence’ for the purpose of harassment or intimidation, it has, and will continue, to gather intelligence on potentially unlawful activities. The OHS primarily focused its efforts during the time relevant to this matter on unlawful, unpermitted protests. The vast majority of events for which OHS attempted to gather intelligence were events being staged without the benefit and protections of a permit. It was, therefore, incumbent on OHS to gather enough information about these events for MPD to staff and support accordingly. In an effort to identify future events with the potential for unlawful conduct, OHS understandably investigated persons present at protests at which unlawful conduct occurred and arrests were made . . . .
(ECF No. 106-1 at 2731 (internal citations omitted).) Moreover, according to the City, if the
Consent Decree is not read narrowly, its definition of “political intelligence” is permitted in the
Sixth Circuit:
When the Sixth Circuit finally interpreted Laird in 1983, it essentially foreclosed the possibility that a plaintiff could allege a First Amendment violation based upon law enforcement’s good faith investigation or surveillance against him absent something more. Thus, the 1978 Kendrick Consent Decree's prohibition against “political intelligence” is, in essence, preempted by this change in federal law. Stated another way, the implementation of “political intelligence” as it is defined in the Consent Decree is permitted under Sixth Circuit law so long as the investigation or surveillance is done in good faith.
Because of this change in law, the Consent Decree must be interpreted in light of the current federal law, i.e., that government surveillance of First Amendment activities must have an objective chilling effect on a person’s speech to be actionable. Because there is no evidence that the City conducted its surveillance of the groups relevant to this action in bad faith, or that the City’s surveillance of First Amendment activities had an objective chilling effect on anyone’s speech, the City should not be found in contempt of the Consent Decree.
(ECF No. 106-1 at 2735.)
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Even if the law in the Sixth Circuit has changed since the entry of the Consent Decree, however, it does not follow that the Consent Decree is “preempted” by that change in law. If the Consent Decree is outdated due to a change in legal or other circumstances, the City is free to file a motion to modify the Consent Decree. Prior to any such modification, however, the City is required to comply with the Consent Decree as written. See Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 392 (1992) (“Although state and local officers in charge of institutional litigation may agree to do more than that which is minimally required by the Constitution to settle a case and avoid further litigation, a court should surely keep the public interest in mind in ruling on a request to modify based on a change in conditions making it substantially more onerous to abide by the decree.”). Indeed, the City appears to recognize as much, stating that “the Kendrick Consent Decree must be modified in light of the Sixth Circuit precedent that substantially diluted, if not completely eliminated, the federal claims that support the Consent Decree. The City will be filing a Rule 60(b) Motion to set aside the Consent Decree separately.” (ECF No. 106-1 at 2735 n. 3.) The question, therefore, is whether the City’s narrow interpretation of the Consent Decree is at least reasonable. See Liberte Capital, 462 F.3d at 551 (“Ambiguities must be resolved in favor of the party charged with contempt.”).
The Consent Decree’s definition of “First Amendment rights” is not limited to the exercise of the relevant rights in a manner that is “lawful” in the sense of being allowed under the City’s ordinances. (See Consent Decree § B(1).) Instead, the Consent Decree defines “First Amendment rights” to mean “rights protected by the First Amendment to the Constitution of the United States including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose.” (Id. § B(1) (emphasis added).) Therefore, the Consent Decree clearly defines “First
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Amendment rights” to mean all “rights protected under the First Amendment,” then proceeds to provide a list of examples. (See id.) The phrase “for any lawful purpose” does not modify the scope of the relevant First Amendment rights; it simply clarifies that certain speech-related conduct falls outside the First Amendment’s protections if it has an unlawful purpose.
For example, a public gathering might be technically “unlawful” because its participants did not secure a government permit prior to gathering, or it might be “unlawful” because it shuts down an interstate bridge. Only the second gathering is categorically outside the protections of the First Amendment. See Cox v. State of La., 379 U.S. 536, 554-55 (1965) (“Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations.”) The First Amendment protects a merely unpermitted gathering, assuming the gathering “does not trigger the [government’s] interest in safety and traffic control.” See Am.-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005).
Indeed, as the City recognizes, this case “is based upon several sections of the Consent Decree which focus heavily upon the underlying motivations of both the individuals purportedly exercising First Amendment rights . . . as well as the MPD.” (ECF No. 112 at 4524.) For example, the City argues that it did not employ an informant “for the purpose of political intelligence” because “[t]here is no evidence that the motivations of those involved had anything to do with the content of the communications between individuals or that it interfered in any manner with the right of the individuals involved to freely associate and express opinions in an unhindered manner.” (Id. at 4532 (emphasis in original).) For the same reason, however, speech-related conduct does not automatically acquire an unlawful purpose when it is carried out
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in a manner that is technically forbidden under the City’s ordinances. Instead, just as the motivations behind the City’s actions are “critical” to certain provisions of the Consent Decree,13 so too are the motivations of protestors, activists, and others who wish to exercise their First Amendment rights “for any lawful purpose.” (Consent Decree § B(1).)
Additionally, the fact that the Consent Decree was entered in a case involving allegations of intimidation and harassment does not automatically insert the phrase “for the purpose of intimidation or harassment” into the Consent Decree’s definition of “political intelligence.” This comports with the City’s cited Handschu case, in which the district court noted that “surreptitious methods” were the “primary focus” of the relevant consent decree but did not insert the phrase “through surreptitious methods” into the decree’s prohibition against “investigation of political activity.” See Handschu, 737 F. Supp. 1289, 1301. In fact, the Handschu court determined that the police violated the relevant consent decree because “the monitoring of a radio program for the expression of political or social views, followed by the preparation of summaries and their retention in intelligence files, constitutes . . . ‘police activity undertaken to obtain information or evidence’ about the exercise of the right of expression for political ends.” Id. at 1304. This finding of a violation was not based on whether the police employed “surreptitious methods.” See id. Instead, it was based squarely on the consent decree’s definitions of the terms “investigation” and “political activity.” See id. at 1301 (reciting the relevant definitions).
In the instant case, the Consent Decree’s prohibition against “political intelligence” is absolute: it states that “the City of Memphis shall not engage in political intelligence.” (Id.
13 The City correctly argues that “the MPD’s motivation in conducting undercover or covert surveillance of events or monitoring of social media is critical.” (ECF No. 112 at 4532.)
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§ C(1).) Therefore, combining the relevant definitions, the Consent Decree prohibits the City from engaging in “any . . . investigative activity . . . relating to . . . [the] exercise of First Amendment rights,” including—but not limited to—the rights to communicate, speak, dissent, write, publish, and associate privately or publicly “for any lawful purpose.” (Consent Decree §§ B(1), B(4), C(1).) Whether the City engaged in “political intelligence” does not depend on whether the City acted “for the purpose of intimidation or harassment” or whether the conduct the City investigated was “lawful” in the sense of being allowed under the City’s ordinances. Instead, under a plain reading of the Consent Decree, the City engaged in “political intelligence” if it investigated any “exercise of First Amendment rights,” with the important reminder that speech-related conduct may not be an “exercise of First Amendment rights” if the conduct has an unlawful purpose. (See Consent Decree §§ B(1), B(4).)
B. The City engaged in “political intelligence” as defined and prohibited by the Consent Decree.
The Consent Decree provides that “the City of Memphis shall not engage in political intelligence.” (Consent Decree § C(1).) Therefore, combining the relevant definitions, the Consent Decree prohibits the City from gathering, indexing, filing, maintaining, storing, or disseminating information—or from engaging in “any other investigative activity”— “relating to any person’s beliefs, opinions, associations or other exercise of First Amendment rights,” including—but not limited to—the rights to communicate, speak, dissent, write, publish, and associate privately or publicly “for any lawful purpose.” (Consent Decree §§ B(1), B(4), C(1).)
Even viewed in the light most favorable to the City, the record establishes, by clear and convincing evidence, that the City violated Section C(1) of the Consent Decree by engaging in “political intelligence” in at least the following ways:
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1. The City engaged in “political intelligence” when it created the AOA for Mayor Strickland’s house and added the AOA’s list of names to the City Hall Escort List. The AOA included individuals who did not participate in the Die-In at the mayor’s house. (See Def.’s Resp. Facts ¶ 5.) Moreover, the City included individuals in the AOA at least in part based on their associations with Keedran Franklin and/or the CCC on social media. (See Pl.’s Resp. Facts ¶ 26; Reynolds Dep., ECF No. 107-54 at 3527.) There is no indication in the record that the “purpose” of these individuals’ social media associations with Keedran Franklin and/or the CCC was unlawful.14 Therefore, even if none of the AOA’s listed individuals were actually escorted at City Hall (which the parties dispute), the record shows that the City gathered and disseminated information relating to their associations protected by the First Amendment.
2. The City engaged in “political intelligence” when it created and circulated Joint Intelligence Briefings to individuals within and outside the MPD. The City’s JIBs included information about events on private property. For example, one JIB included information about a “Black Lives Matter Memphis Chapter . . . meeting at Pilgrim Rest Baptist Church.” (ECF No. 107-14 at 3190.) The JIBs also included information about events whose purpose appears to be undeniably lawful. For example, one JIB included information about an event called “Black Owned Food Truck Sunday.” (Id. at 3191.) Therefore, the City gathered and disseminated information relating to persons’ associations protected by the First Amendment.15
14 Even if an individual had previously committed an unlawful act with Keedran Franklin or other members of the CCC, it does not follow that the purpose of that individual’s social media associations with Keedran Franklin and/or the CCC was unlawful.
15 It is not clear how the City learned about particular lawful events, but the City may have learned about them by using social media collators to monitor online “chatter.” (See Def.’s Resp. Facts, ECF No. 110 ¶ 37.) In that case, the City engaged in “political intelligence” not only in creating and circulating the JIBs, but in the online monitoring itself, which constituted the gathering of information about the exercise of First Amendment rights. The City’s use of
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3. The City engaged in “political intelligence” when it deployed plainclothes police officers to photograph and identify participants at protest events. Major Chandler testified that the MPD’s plainclothes officers “would take photographs of what was going on to give people an idea of the size of the crowd, what the crowd was doing” and also “identify participants that were there.” (See Chandler Dep., ECF No. 107-50 at 3435.) Therefore, the City gathered information relating to persons’ associations and assemblies protected by the First Amendment.
C. There is a genuine dispute as to whether the City operated any offices, infiltrated any groups, or disseminated any derogatory or false information about any individuals or groups “for the purpose of political intelligence.”
Although the City engaged in “political intelligence,” it does not follow that it acted for the purpose of “political intelligence.” As discussed earlier in the Court’s analysis, the City is correct that this case “is based upon several sections of the Consent Decree which focus heavily upon the underlying motivations of both the individuals purportedly exercising First Amendment rights . . . as well as the MPD.” (ECF No. 112 at 4524; see also Consent Decree §§ C(2), E, F(1).) With respect to those sections of the Consent Decree, the distinction between methods and motivations is critical. Just as a protest organizer might violate an ordinance without doing so for an unlawful purpose, a police department might gather and disseminate information about citizens’ speech-related activities without acting “for the purpose of political intelligence.”
social media collators to search for specific threats to police and public safety, however—and the City’s circulation of information about any specific threats it discovered—was not “political intelligence” because the purpose of such threats is unlawful and they are not protected under the First Amendment. The Consent Decree does not prohibit the City from monitoring social media altogether; it simply prohibits the City from casting too wide a net. Additionally, if the City casts an appropriately narrow net but inadvertently gathers information about the exercise of rights protected under the First Amendment, the Consent Decree prohibits the City from disseminating that information.
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Accordingly, viewed in the light most favorable to the City, the record does not establish that the City operated any offices for “the purpose of engaging in political intelligence.” (See Consent Decree § C(2).) Similarly, the record does not establish that the City infiltrated any groups “for the purpose of political intelligence” or disseminated any derogatory or false information about individuals or groups “for the purpose of political intelligence.” (See Consent Decree §§ E, F(1).) Instead, viewed in the light most favorable to the City, the purpose behind the City’s actions was to promote public and police safety, not to gather or disseminate information relating to the exercise of First Amendment rights.
D. There is a genuine dispute as to whether the City engaged in any action “for the purpose of, or reasonably having the effect of, deterring any person from exercising First Amendment rights.”
The ACLU-TN argues that the City “violated Section F of the Decree by specifically engaging [in] conduct used as an example of a violation, by regularly naming and photographing individuals exercising their First Amendment rights by attending meetings and events.” (ECF No. 107-1 at 3067.) Section F(2) of the Consent Decree, however, does not prohibit the City from photographing participants at public protests.16 Instead, it prohibits the City from doing so “for the purpose of chilling the exercise of First Amendment rights or for the purpose of maintaining a record.” (Consent Decree § F(2).) For the reasons discussed earlier in the Court’s analysis, there is a genuine dispute as to the “purpose” of the City’s actions.
In addition to photographing protesters, the City appears to have contacted individual organizers and “reminded [them] that [they] would need to apply for a permit if [they were]
16 Whether such photographs are permitted under Section C(1)’s prohibition against “political intelligence” is another question, addressed earlier in the Court’s analysis.
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planning an upcoming rally for over 25 participants.” (See ECF No. 107 9 at 3159.) The City likely did this in order to discourage those organizers from holding large rallies without first obtaining permits, but even so, the City’s “purpose” was not necessarily to discourage the organizers from exercising their rights. Instead, the City might have been concerned that the organizers were planning disruptive and/or dangerous events that were not protected by the First Amendment. There is a genuine dispute as to whether the City acted “for the purpose of . . . deterring any person from exercising First Amendment rights.”
Similarly, there is a genuine dispute as to whether the City “engage[d] in any action . . . reasonably having the effect of . . . deterring any person from exercising First Amendment rights.” (See Consent Decree § F(2).) The parties dispute whether the City enforced different standards for obtaining permits for protests than for other types of events. (See Def.’s Resp. Facts ¶ 63.) It is undisputed that the MPD contacted certain event organizers, but whether this reasonably had the effect of deterring the exercise of First Amendment rights depends on the details of the MPD’s contacts with the organizers and the nature of the events the organizers were planning.17 These are factual issues to be examined at trial.
E. The City did not review and issue written authorizations for at least some lawful investigations of criminal conduct that “may result in the collection of information about” or “interfere in any way with” the “exercise of First Amendment rights.”
Sergeant Reynolds submitted a sworn affidavit stating that, “[i]n the fall of 2016, the Memphis Police Department started an investigation into a social media platform where someone
17 For example, the City contends that “Major Chandler spoke with the organizer of [an] event for [the] purpose of determining the nature of the event and to ensure that MPD was adequately prepared to protect public safety in light of the fact that this event was being held just three days after the I-40 bridge shut-down.” (Def.’s Resp. Facts, ECF No. 110 ¶ 59.)
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posed as MPD Director Michael Railings. The Economic Crimes Bureau started the criminal investigation into this event under Case Number 1609004302ME.” (Reynolds Aff., ECF No. 115-2 ¶ 16.) Sergeant Reynolds asserts that, in connection with this criminal investigation, he used a relationship developed by his online alias. (Id.) Similarly, Sergeant Reynolds asserts that he used his online alias to investigate a suspected hacking into the Memphis Zoo’s computer system. (See id. ¶ 19.) With respect to that investigation,18 Sergeant Reynolds asserts that he gained access to a private Facebook group called “Kessler Associates” and viewed individuals’ posts in the private group. (See id.)
A police officer’s use of an alias to develop online relationships with individuals and gain access to their private online groups may be perfectly appropriate as part of a criminal investigation, but it nevertheless “may result in the collection of information about the exercise of First Amendment rights, or interfere in any way with the exercise of such First Amendment rights.” (Consent Decree § G(1).) Therefore, the Consent Decree requires such criminal investigations to be “immediately [brought] . . . to the attention of the Memphis Director of Police for review and authorization.” (Id.)
Director Rallings testified that he does not recall issuing any written authorizations for any criminal investigations. (See Rallings Dep., ECF No. 107-53 at 3489.) The City argues that “[t]he absence of any testimony concerning the Director’s involvement in a ‘criminal investigation[’] under Section G by no means establishes a violation of this section.” (ECF No. 112 at 4537 (emphasis in original).) The ACLU-TN does not point, however, to an absence of testimony about reviews and authorizations. Instead, the ACLU-TN points to specific testimony
18 The investigation appears to have been a “lawful investigation of criminal conduct.” (See Consent Decree § G(1).)
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that Director Rallings does not recall conducting any reviews or authorizations for criminal investigations. (See Rallings Dep., ECF No. 107-53 at 3489.) It is impossible to definitively prove a negative, and such testimony is sufficient to shift the burden to the City “to set forth specific facts showing a triable issue of material fact.” See Mosholder, 679 F.3d at 448-49; see also Fed. R. Civ. P. 56(e). The City has not done so. Accordingly, the record shows, by clear and convincing evidence, that the City did not review and issue written authorizations for at least some lawful investigations of criminal conduct that “may result in the collection of information about” or “interfere in any way with” the “exercise of First Amendment rights.” (See Consent Decree § G.)
F. There is a genuine dispute as to whether the City has substantially complied with the requirement not to disseminate personal information “collected in the course of a lawful investigation of criminal conduct” to persons outside law enforcement agencies.
With respect to Section H of the Consent Decree, the City “admits that it inadvertently disseminated personal information about a few persons in several early JIBs to a limited number of non-law-enforcement persons.” (ECF No. 112 at 4536.) The City explains, however, that the “MPD stopped circulating the JIB to non-law enforcement persons shortly after the practice started.” (ECF No. 112 at 4536.)
There does not appear to be any dispute that the MPD disseminated personal information “collected in the course of a lawful investigation of criminal conduct” to persons outside “another governmental law enforcement agency then engaged in a lawful investigation of criminal conduct.” (See Consent Decree § H(2).) If this practice was truly inadvertent and ended quickly, however, the City may be in substantial compliance with Section H of the Consent Decree. This is a factual issue to be examined at trial.
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IV. CONCLUSION
For the foregoing reasons, the Consent Decree’s definition of “political intelligence” does not depend on whether the conduct being investigated was “lawful” in the sense of being allowed under the City’s ordinances and does not depend on whether the City’s investigative acts were taken “for the purpose of intimidation or harassment.” Therefore, the City engaged in “political intelligence” as defined and prohibited by the Consent Decree. There is a genuine dispute, however, as to whether the City operated any offices, infiltrated any groups, or disseminated any derogatory or false information about any individuals or groups for the purpose of “political intelligence.” There is also a genuine dispute as to whether the City engaged in any action “for the purpose of, or reasonably having the effect of, deterring any person from exercising First Amendment rights.”
The record shows that, in violation of the Consent Decree, the City failed to review and issue written authorizations for at least some lawful investigations of criminal conduct that “may result in the collection of information about” or “interfere in any way with” the “exercise of First Amendment rights.” There is a genuine dispute, however, as to whether the City has substantially complied with the requirement not to disseminate personal information “collected in the course of a lawful investigation of criminal conduct” to persons outside law enforcement agencies.
Accordingly, the ACLU-TN’s Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART, and the City’s Motion for Summary Judgment is DENIED. The City has violated at least some provisions of the Consent Decree, and therefore, if the ACLU-TN succeeds in establishing standing at trial, the Court will determine the appropriate contempt
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Case 2:17-cv-02120-JPM-egb Document 120 Filed 08/10/18 Page 35 of 35 PageID 4888 sanction. That sanction will depend, in part, on how many of the Consent Decree’s provisions the City is determined to have violated and the details of the City’s specific violations. IT IS SO ORDERED, this 10th day of August, 2018. /s/ Jon P. McCalla JON P. McCALLA UNITED STATES DISTRICT JUDGE
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 Case 2:17-cv-02120-JPM-egb Document 41 Filed 06/30/17 Page 1 of 16 PageID 509

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION ______________________________________________________________________________

ELAINE BLANCHARD, KEEDRAN

)

FRANKLIN, PAUL GARNER, and

)

BRADLEY WATKINS,

)

)

Plaintiffs,

)

)

And

)

)

ACLU OF TENNESSEE, INC.,

)

)

Intervening-Plaintiff,

)

)

vs.

)

NO. 2:17-cv-02120-JPM-dkv

)

THE CITY OF MEMPHIS,

)

)

Defendant.

)

______________________________________________________________________________

ORDER GRANTING MOTION TO DISMISS AS TO BLANCHARD PLAINTIFFS; ORDER DENYING MOTION TO DISMISS AS TO INTERVENING-PLAINTIFF ACLU
OF TENNESSEE, INC. ______________________________________________________________________________

This Cause is before the Court on Defendant City of Memphis’s Motion to Dismiss the

Complaint of Plaintiffs Elaine Blanchard, Keedran Franklin, Paul Garner, and Bradley Watkins

(the “Blanchard Plaintiffs”) (ECF No. 8 at PageID 33) and Motion to Dismiss the Complaint of

Intervening-Plaintiff ACLU of Tennessee, Inc. (“ACLU-TN”) (ECF No. 22 at PageID 283), filed

on March 1, 2017 and March 8, 2017, respectively.

The Blanchard Plaintiffs and ACLU-TN allege that Defendant City of Memphis is

engaging in law enforcement activities that interfere with First Amendment rights, in violation of

the 1978 Consent Order, Judgment and Decree in the case of Kendrick, et al. v. Chandler, et al.,

No. 2-76-cv-00449 (W.D. Tenn.). (ECF No. 1, 26.) Defendant City of Memphis, in its Motions

Case 2:17-cv-02120-JPM-egb Document 41 Filed 06/30/17 Page 2 of 16 PageID 510
to Dismiss, argues that the Court lacks subject-matter jurisdiction to enforce the Decree, and that the Blanchard Plaintiffs and ACLU-TN lack standing to pursue the litigation. (ECF No. 8, 22.)
For the reasons stated below, the Court GRANTS Defendant’s Motion to Dismiss the Complaint of the Blanchard Plaintiffs and DENIES Defendant’s Motion to Dismiss ACLU-TN’s Intervenor Complaint.1
I. BACKGROUND This case arises from a Consent Order, Judgment and Decree (the “Kendrick Decree”)
entered in 1978 in case of Kendrick, et al. v. Chandler, et al., No. 2:76-CV-00449 (W.D. Tenn.). (ECF No. 1; ECF No. 16.) The parties in Kendrick consisted of Plaintiffs Chan Kendrick, Mike Honey, and the American Civil Liberties Union in West Tennessee, Inc., and Defendants Wyeth Chandler, Mayor of the City of Memphis, W.O. Crumby, Chief of Police and Acting Director of the Police of the City of Memphis, PT Ryan, Captain of the Intelligence Section of the Memphis Police Department, and George W. Hutchison, Deputy Chief of Operations of the Memphis Police Department. (ECF No. 1-1.) The District Court entered an Order, Judgment and Decree on September 14, 1978 with the consent of the defendants. (Id. at PageID 9.) The purpose of the Kendrick Decree was to “prohibit the defendants and the City of Memphis from engaging in law enforcement activities which interfere with any person’s rights protected by the First Amendment to the United States Constitution.” (Id. at PageID 10.)
1 Defendant filed a Motion for Oral Argument on the Issue of ACLU-TN's Standing on June 16, 2017 (ECF No. 38), to which ACLU-TN responded in opposition on June 23, 2017 (ECF No. 39). Without seeking leave from the Court, Defendant filed a reply to ACLU-TN's response on June 26, 2017. (ECF No. 40.) The Court DENIES AS MOOT Defendant's Motion for Oral Argument with the entry of this Order. Defendant is reminded that "[e]xcept as provided by LR 12.1(c) and LR 56.1(c), reply memoranda may be filed only upon court order granting a motion for leave to reply." L.R. 7.2(c).
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Plaintiffs Elaine Blanchard, Keedran Franklin, Paul Garner, and Bradley Watkins (the “Blanchard Plaintiffs”) filed a Complaint against Defendant City of Memphis on February 22, 2017 to enforce the Kendrick Decree and “for damages and other relief” against the City of Memphis. (ECF No. 1.) ACLU of Tennessee, Inc. (“ACLU-TN”) filed a Motion to Intervene on March 2, 2017. (ECF No. 12.) The Motion to Intervene was granted. (ECF No. 15.) ACLUTN filed its Intervenor Complaint on March 3, 2017. (ECF No. 16.) The Blanchard Plaintiffs and ACLU-TN allege that Defendant City of Memphis conducted video recording of protests in front of City Hall on February 21, 2017 and established a list of protesters, in violation of the Kendrick Decree. (ECF No. 1 at PageIDs 4-5; ECF No. 16 at PageIDs 225-26.) The Blanchard Plaintiffs also allege that Defendant failed to publish the Kendrick Decree on the City of Memphis and the Memphis Police Department websites, in violation of the Decree (ECF No. 1 at PageID 5.) The Blanchard Plaintiffs and ACLU-TN additionally allege that the Memphis Police Department uses a program called Geofeedia to monitor social media postings in violation of the Kendrick Decree. (Id.; ECF No. 16 at PageID 227.) Lastly, the Blanchard Plaintiffs and ACLUTN allege that the City of Memphis and the Memphis Police Department have created “black lists” of people who may not come into City Hall without police escort, which includes people who participated in protected First Amendment activities. (ECF No. 1 at PageID 6; ECF No. 16 at PageID 226.) The Blanchard Plaintiffs and ACLU-TN seek compensatory damages, injunctive relief, and a declaratory judgment. (ECF No. 1 at PageID 7; ECF No. 16 at PageID 228.)
On March 7, 2017, Defendant filed a Motion to Bifurcate and Stay or Limit Discovery, requesting that the Court bifurcate the standing and subject-matter jurisdiction issues from the
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merits of the case, and grant a stay of discovery or limit initial discovery to the standing issue. (ECF No. 19.) The Court denied Defendant’s Motion on March 31, 2017. (ECF No. 27.)
Defendant filed a Motion to Dismiss the Complaint of the Blanchard Plaintiffs on March 1, 2017, asserting that the Court lacks subject-matter jurisdiction to enforce the Kendrick Decree and that the Blanchard Plaintiffs lack standing to bring the suit. (ECF No. 8.) The Blanchard Plaintiffs filed a Response in Opposition on March 29, 2017. (ECF No. 26.) Defendant filed a Reply to the Blanchard Plaintiffs’ Response on April 3, 2017. (ECF No. 29.)
Defendant filed a Motion to Dismiss the Intervenor Complaint of ACLU-TN on March 8, 2017, asserting that the Court lacks subject-matter jurisdiction over the Kendrick Decree and that ACLU-TN lacks Article III standing. (ECF No. 22.) ACLU-TN filed a Response in Opposition on April 5, 2017. (ECF No. 33.) Defendant filed a Reply to ACLU-TN’s Response on April 10, 2017. (ECF No. 35.)2
II. LEGAL STANDARD A. Subject-Matter Jurisdiction
If the court determines at any time that it lacks jurisdiction, the case must be dismissed. Fed. R. Civ. P. 12(b)(1). The plaintiff “bears the burden of establishing that jurisdiction exists.” Serras v. First Tennessee Bank Nat. Ass'n, 875 F.2d 1212, 1214 (6th Cir. 1989) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Weller v. Cromwell Oil Co., 504
2 Without seeking leave from the Court, Defendant City of Memphis filed a Supplemental Memorandum on June 6, 2017 (ECF No. 36), to which ACLU-TN filed a Response on June 9, 2017 (ECF No. 37). Pursuant to the Local Rule 12.1, replies to a motion to dismiss must be filed within 14 days after the response is served, and a reply may not exceed 10 pages without prior Court approval. Defendant filed its timely Reply to ACLU-TN's Response on April 10, 2017. (ECF No. 35.) The supplemental memorandum, filed almost 2 months after Defendant's Reply, is not only untimely but is also a total of 16 pages when combined with Defendant's Reply. (See ECF Nos. 35, 36.) The Court therefore declines to consider Defendant's Supplemental Memorandum.
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F.2d 927, 929 (6th Cir. 1974)). Both the Blanchard Plaintiffs and ACLU-TN assert that the Court has ancillary jurisdiction to enforce the Kendrick Decree. (ECF Nos. 26, 33.)
The doctrine of “ancillary jurisdiction” recognizes a “federal courts’ jurisdiction over some matters (otherwise beyond their competence) that are incidental to other matters properly before them.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 378 (1994). “Ancillary jurisdiction applies to related proceedings that are technically separate from the initial case that invoked federal subject-matter jurisdiction.” 13 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3523, at 154 (3d ed. 2008). An ancillary suit is defined as:
A bill filed to continue a former litigation in the same court . . . to obtain and secure the fruits, benefits and advantages of the proceedings and judgment in a former suit in the same court by the same court . . . or to obtain any equitable relief in regard to, or connected with, or growing out of, any judgment or proceeding at law rendered in the same court. Kokkonen, 511 U.S. at 378 (citing Julian v. Central Trust Co., 193 U.S. 93 (1904)). Ancillary jurisdiction has generally been asserted for two purposes: “(1) to permit disposition by a single core of claims that are, in varying respects and degrees, factually interdependent, and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” Id. at 379-80. The first of the two purposes has largely been codified in the supplemental jurisdiction statute, 28 USC § 1367. See Hudson v. Coleman, 347 F.3d 138, 142 (6th Cir. 2003). The second of the two purposes, asserted by the Blanchard Plaintiffs and ACLU-TN and addressed in the instant Order, is generally referred to as “ancillary enforcement jurisdiction.” Id. “A consent decree is essentially a settlement agreement subject to continued judicial policing.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983). “A consent decree has
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attributes of both a contract and of a judicial act.” Id. As such, a court’s jurisdiction over a consent decree should be analyzed as if the consent decree is both a settlement agreement and a judicial act.
1. Continuing Jurisdiction Over a Settlement Agreement In Kokkonen, the Supreme Court discussed a court’s ancillary jurisdiction over a settlement agreement. Kokkonen, 511 U.S. at 379. The Court concluded that ancillary jurisdiction did not exist to enforce the settlement agreement, because the Stipulation and Order of Dismissal with Prejudice that dismissed the case “did not reserve jurisdiction in the District Court to enforce the settlement agreement,” refer to the settlement agreement, or incorporate its terms. Id. at 377-81. The Supreme Court distinguished the case from Julian, in which ancillary jurisdiction existed because “the court, in a prior decree of foreclosure, had expressly reserved jurisdiction to adjudicate claims against the judicially conveyed property, and to retake and resell the property if claims it found valid were not paid.” Id. at 379. The Court emphasized the importance of the language in the Order of Dismissal, stating that “the parties’ compliance with the terms of the settlement contract (or the court’s “retention of jurisdiction” over the settlement contract) may, in the court’s discretion, be one of the terms set forth in the order.” Id. at 381. The Supreme Court also emphasized the consented-to nature of a settlement agreement, stating that “[i]f the parties wish to provide for the court’s enforcement of a dismissal-producing settlement agreement, they can seek to do so.” Id. at 381. The Court concluded that a “court is authorized to embody the settlement contract in its dismissal order (or, what has the same effect, retain jurisdiction over the settlement contract) if the parties agree.” Id. at 381-82. The Sixth Circuit has interpreted Kokkonen to indicate that a district court may retain jurisdiction to enforce a settlement agreement if the court “either (1) has language in the dismissal order
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Case 2:17-cv-02120-JPM-egb Document 41 Filed 06/30/17 Page 7 of 16 PageID 515
indicating its retention of jurisdiction, or (2) incorporates the terms of the settlement agreement into the dismissal order.” Hehl v. City of Avon Lake, 90 F. App'x 797, 801 (6th Cir. 2004).
2. Continuing Jurisdiction Over an Injunction “The injunctive quality of consent decrees compels the court to: 1) retain jurisdiction over the decree during the term of its existence, . . . 2) protect the integrity of the decree with its contempt powers, . . . and 3) modify the decree should ‘changed circumstances’ subvert its intended purpose.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983) (quoting Stotts v. Memphis Fire Department, 679 F.2d 541 (6th Cir. 1982); Brown v. Neeb, 644 F.2d 551, 563 (6th Cir. 1981)). “A district court must look to the specific terms of a consent decree in determining whether and when to terminate supervision or jurisdiction over it.” Gonzales v. Galvin, 151 F.3d 526, 531 (6th Cir. 1998) (citations omitted). “Factors to be considered include (1) any specific terms providing for continued supervision and jurisdiction over the consent decree; (2) the consent decree's underlying goals; (3) whether there has been compliance with prior court orders; (4) whether defendants made a good faith effort to comply; (5) the length of time the consent decree has been in effect; and (6) the continuing efficacy of the consent decree's enforcement.” Id. (citing Heath v. DeCourcy, 992 F.2d 630, 633 (6th Cir.1993)). “Notwithstanding this list of “factors,” a district court may not terminate its jurisdiction until it finds both that Defendants are in compliance with the decree's terms and that the decree's objectives have been achieved.” Id. B. Standing To satisfy the standing requirements of Article III of the Constitution, a plaintiff must show: “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will
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be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo v. Robins, 136 S.Ct. 1540, 1548 (2016). A plaintiff bears the burden to show he or she has standing. Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014).
1. Third-Party Beneficiaries to a Consent Decree “[A] consent decree is not enforceable directly or in collateral proceedings by those who are not parties to it even though they were intended to be benefited by it.” Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750 (1975). See also S.E.C. v. Dollar Gen. Corp., 378 F. Appx 511, 515 (6th Cir. 2010) (holding that “third parties, even intended third-party beneficiaries, lack standing to enforce their interpretations of agreed judgments”); Aiken v. City of Memphis, 37 F.3d 1155, 1168 (6th Cir. 1994) (following Blue Chip’s ruling to hold that “even intended third-party beneficiaries of a consent decree lack standing to enforce its terms.”).
2. Successors in Interest to a Consent Decree Acquiring entities typically have standing as successors-in-interest. See Bank of America, National Association v. Meyer, No. 14-01123, WL 1275394, at *3 (Tenn. Ct. App. 2015) (holding that Bank of America had standing as a successor in interest of a deed of trust of an acquired corporation). Tennessee law also allows for derivative standing in several other situations, including labor disputes. T.C.A. § 1132(a)(1)(B). See also Scott v. Regions Bank, 702 F. Supp. 2d 921, 929 (E.D. Tenn. 2010) (allowing a trustee of a testamentary trust to have
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derivative standing as a successor in interest to bring an action under ERISA to recover health care benefits).
“The invasion of a common-law right (including a right conferred by contract) can constitute an injury sufficient to create standing.” See Katz v. Pershing, LLC, 672 F.3d 64 (1st Cir. 2012) (citing Ala. Power Co. v. Ickes, 302 U.S. 464 (1938)). Successors in interest to a consent decree are bound by the decree as parties in privity. See Vulcan, Inc. v. Fordees Corporation, 658 F.2d 1106, 1109 (6th Cir. 1981) (discussing privity to a consent decree in the context of res judicata). Federal Rule of Civil Procedure Rule 65(d) provides that “[e]very order granting an injunction . . . is binding only upon the parties to the action, their officers, agents, servants, employees.” Fed. R. Civ P. 65(d). This rule is “derived from the common law doctrine that a decree of injunction not only binds the parties but also those identified with them in ‘privity’ with them, represented by them or subject to their control.” Tennessee Ass’n of Health Maint. Organizations, Inc. v. Greir, 262 F.3d 559, 594 (6th Cir. 2001) (quoting Regal Knitwear Co. v. National Labor Relations Board, 324 U.S. 9, 14 (1945).
Privity is defined as parties who “have a sufficiently close relationship with the record parties to be bound by the judgment.” Vulcan, 658 F.3d at 1109. A party is in privity with another if that party is “represented by them or subject to their control.” Tennessee Ass’n of Health Maint. Organizations, Inc. v. Greis, 262 F.3d 559, 594 (6th Cir. 2001) (quoting Regal Knitwear Co. v. National Labor Relations Board, 324 U.S. 9, 14 (1945)). “Whether privity exists in a given case is a question of fact.” Vulcan, 658 F.3d at 1109. Under the concept of privity, a litigant who is not a party to the prior suit may be bound by a prior judgment if he/she is a successor in interest, a nonparty who controlled the earlier lawsuit, or a nonparty who was adequately represented by a party in the prior litigation. Sweeney v. City of Steubenville, 147
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F.Supp.2d 872, 880 (N.D. Ohio 2001); Baltz v. Botto, 147 F.Supp. 468, 477 (W.D. Tenn. 1956) (“A successor in interest is in privity with its predecessor in interest”).
III. ANALYSIS A. Subject-Matter Jurisdiction Defendant argues that the Court lacks subject-matter jurisdiction over the Kendrick
Decree, asserting that the Decree was a final adjudication of the matters before the Kendrick court and that the language of the Decree did not indicate that it was intended to operate in perpetuity. (ECF No. 9 at PageIDs 41-46; ECF No. 22-1 at PageID 297.) The Blanchard Plaintiffs and ACLU-TN argue that the Court retains jurisdiction over the Kendrick Decree due to the language of the Decree and the nature of the Decree as an injunction. (ECF No. 26 at PageIDs 329-31; ECF No. 33 at PageIDs 374-79.)
1. The Decree as a Settlement Agreement Under Kokkonen Section M of the Kendrick Decree, titled “Retention of Jurisdiction,” reads as follows: The Court will retain jurisdiction of this action, including any issue which might arise regarding the payment of attorneys’ fees to counsel for plaintiffs, pending disposition of all matters contained in this Decree and for the purpose of issuing any additional order required to effectuate this Decree. (ECF No. 1-1 at PageID 14.) The Court finds that the explicit retention of jurisdiction in the Kendrick Decree gives the Court ancillary jurisdiction over the instant case. Cf. Kokkonen, 511 US at 377, 389. Unlike Kokkonen, the order resolving the Kendrick case reserved jurisdiction to enforce the decree, thus giving the Court ancillary jurisdiction “to protect its proceedings and vindicate its authority.” Id. at 380. Similar to Julian, ancillary jurisdiction exists based upon the fact that the Kendrick court expressly reserved jurisdiction to issue orders required to effectuate the Decree. See id. at 379. Defendant argues that the Decree has long since been “effectuated,” as the Decree applies to a different set of plaintiffs and defendants. (ECF No. 9 at PageID 43.)
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The plain language of the Decree, however, purports to bind the Memphis Police Department in its present and future capacities, defining “Defendants” as “defendants Chandler, Crumby, Ryan and Hutchinson and their successors in office.” (ECF No. 1-1 at PageID 11 (emphasis added).) The Decree defines the City of Memphis as “all present and future officials, employees and any other agents, and all departments, divisions and any other agencies, of the City of Memphis, Tennessee.” (Id. (emphasis added).) If the Decree has been violated by the City of Memphis, as Plaintiffs suggest, the Court must retain jurisdiction “to effectuate this Decree.” (Id.) A breach of the Decree would be a violation of the order of dismissal,3 and pursuant to Kokkonen, ancillary jurisdiction to enforce the Decree therefore exists. Id. at 381.
2. The Decree as an Injunction Defendant also argues that public policy prohibits the Kendrick Decree from operating in perpetuity. (ECF No. 9 at PageID 45-46.) The Court, however, does not find any language in the Decree indicating a specific timeframe or expiration date. Additionally, given the injunctive nature of the Decree, the Court finds that the specific terms as well as the injunctive nature weigh in favor of retaining jurisdiction over the decree. See Gonzales v. Galvin, 151 F.3d 526, 531 (6th Cir. 1998) (putting forth a list of factors for a district court to consider in determining whether and when to terminate supervision or jurisdiction over a consent decree). The presence of a retention of jurisdiction clause, with no particular duration, as well as the language of the consent decree purporting to bind the defendants’ “successors in office” and “all present and future officials” of the City of Memphis, weigh in favor of continued supervision and jurisdiction.
3 The Order, Judgment, and Decree in the instant case essentially functioned as the "order of dismissal" described in Kokkonen, because it operated as a final adjudication of the merits in the Kendrick litigation. Though the case did not close upon entry of the order, the remainder of the docket entries did not concern the merits of the case, but rather were filed to resolve the remaining issue of attorney's fees. (See Kendrick, et al. v. Chandler, et al., No. 2:76-CV-00449 (W.D. Tenn.), ECF No. 5.)
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(ECF No. 1-1 at PageID 11, 12.) The underlying goals of the Decree, to “prohibit the defendants and the City of Memphis from engaging in law enforcement activities which interfere with any person’s rights protected by the First Amendment” also weigh in favor of continued jurisdiction. The Decree binds the City of Memphis, an entity that was likely expected to survive for more than 39 years; therefore, it appears that the Kendrick court contemplated that the injunction would be enforced beyond 2017.4 Enforcement of the Decree would no doubt have continuing efficacy to protect the First Amendment rights of “any individual, group or organization” against abuses by the government. (ECF No. 1-1 at PageID 11.) Construing the Complaint in the light most favorable to Plaintiffs, it does not appear that the Decree’s objectives have been achieved such that the Decree no longer needs to be in effect. Rather, continuing jurisdiction over the Decree allows an ongoing process to exist whereby the Court may ensure that the First Amendment rights are protected. Due to all of these considerations, the Court finds that the factors weigh against terminating over the Decree at this time.
B. Standing 1. Blanchard Plaintiffs
Defendant argues that the Blanchard Plaintiffs lack standing because they suffered no injury in fact as they were not parties to the Kendrick Decree. (ECF No. 9 at PageIDs 39-41.) Even if the Blanchard Plaintiffs were intended third-party beneficiaries, Defendant argues that they would still lack standing to enforce the Decree. (Id.) The Blanchard Plaintiffs assert that they are intended, not incidental third-party beneficiaries, and so have standing to enforce the Decree. (ECF No. 26 at PageIDs 326-29.)
4 The Court does not decide whether the Decree should be "enforced in perpetuity"; rather, the Court holds only that it need not terminate its supervision of the Decree at this time.
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The Blanchard Plaintiffs recycle the same argument that was rejected by the Sixth Circuit
in Aiken. In Aiken, the Sixth Circuit clearly stated that “even intended third-party beneficiaries
of a consent decree lack standing to enforce its terms.” Aiken, 37 F.3d at 1168. As such, the Blanchard Plaintiffs lack standing to enforce the Kendrick Decree.5
2. ACLU-TN
Defendant argues that ACLU-TN lacks standing to enforce the Kendrick Decree because
the West Tennessee Civil Liberties Union (“WTCLU”), not ACLU-TN, was the original party to
the Decree, and therefore ACLU-TN did not suffer an injury in fact. (ECF No. 22-1 at PageIDs
291-97.) ACLU-TN argues that it was an original party to the Kendrick lawsuit because the
WTCLU was operating as a chapter of the ACLU-TN. (ECF No. 33 at PageIDs 369-74.)
The WTCLU was formed on April 18, 1967 “to further the objectives of the American
Civil Liberties Union and to advance the cause of civil liberties in the State of Tennessee.” (ECF
No. 33-6 at PageID 413.) The WTCLU was formed as a general welfare, not-for-profit corporation.6 (Id. at PageIDs 413, 414, 418.)
5 Plaintiffs argue that the holding in Blue Chip is contrary to Federal Rule of Civil Procedure 71, citing cases from the Second Circuit, Ninth Circuit, and Restatement (Second) of Contracts, all of which, unlike Aiken, are merely persuasive and not binding to this Court.
6 There appears to be some confusion as to whether WTCLU was formed as a non-profit or for-profit corporation. (Compare ECF No. 22-2 at PageID 299 with ECF No. 33-6 at PageIDs 413, 414, 418.) The Court finds persuasive WTCLU's 1967 Charter of Incorporation, which indicates that WTCLU was intended to be formed as a not-for-profit corporation, as well as the 1983 notice of dissolution/revocation from the Tennessee Department of Revenue, which describes WTCLU as a not-for-profit corporation. (See ECF No. 33-6 at PageIDs 413, 418.) The Court places lesser weight on the classification of the WTCLU found through an Internet search conducted on the Tennessee Department of State website in March 2017. (See ECF No. 22-2, 22-4.) See also Federal Rule of Evidence 1002 ("An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.") In any event, classification of WTCLU as a non-profit or for-profit organization does not materially affect the Court's analysis in the section.
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ACLU-TN was formed on September 18, 1968, in part, “to assume and continue the operations of the West Tennessee Civil Liberties, Inc., a Tennessee Corporation.” (ECF No. 334 at PageIDs 404-05.) ACLU-TN was formed as a general welfare, not-for-profit corporation. (Id. at PageID 406.) The bylaws of ACLU-TN, as revived in 1973, describe the structure of the organization. (ECF No. 33-8.) Specifically, the bylaws describe the chapters of the ACLU-TN as having the “authority to direct and govern activities of ACLU in their area, subject to the policies and regulations of the ACLU of Tennessee, Inc.” (Id. at PageID 425.)
The Kendrick lawsuit was filed on September 10, 1976. (Kendrick, et al. v. Chandler, et al., No. 2:76-cv-00449 (W.D. Tenn.), ECF No. 5 at PageID 24.) The description of the plaintiff at issue in the Kendrick lawsuit reads: “The American Civil Liberties Union of West Tennessee, Inc. (“WTCLU”) is a Chapter of the American Civil Liberties Union of Tennessee, Inc., which is an affiliate of the American Civil Liberties Union, all being non-profit, non-partisan organizations dedicated to the preservation of citizens’ rights and liberties guaranteed by the Constitution and laws of the United States.” (Id., ECF No. 2 at PageID 2.) ACLU-TN was not a named plaintiff in the Kendrick lawsuit. (Id.) The Kendrick Decree, which concluded the merits of the Kendrick lawsuit on September 14, 1978, named the plaintiff “American Civil Liberties Union in West Tennessee, Inc.” as a party to the Decree. (ECF No. 1-1.)
The WTCLU and ACLU-TN were dissolved on March 17, 1983 for failure to file annual reports with the Department of Revenue. (ECF No. 33-6 at PageID 418; ECF No. 22-3 at PageID 301.) ACLU-TN had its revocation cleared by the Department of Revenue and was reinstated in 1998. (ECF No. 22-3 at PageID 301.)
The Court finds that ACLU-TN’s close relationship with WTCLU indicates that ACLUTN is a successor in interest to WTCLU, and was thus a party in privity to the Decree. WTCLU
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was established to “further the objectives of the American Civil Liberties Union . . . in the state of Tennessee.” (ECF No. 33-6 at PageID 413.) WTCLU, as a chapter of the ACLU-TN, had the authority to “direct and govern” activities of the ACLU in Western Tennessee. (ECF No. 33-8 at PageID 425.) WTCLU, therefore, acted on behalf of ACLU-TN in the filing of the Kendrick lawsuit. ACLU-TN’s Charter of Incorporation states that the purpose of ACLU-TN’s incorporation is to “assume and continue the operations of West Tennessee Civil Liberties, Inc.” (ECF No. 33-4 at PageID 405.) When WTCLU dissolved in 1983, ACLU-TN “assume[d] and continue [d] the operations of the WTCLU. (ECF No. 33-4 at PageID 405.) ACLU-TN’s bylaws, ACLU-TN’s charter, and WTCLU’s charter show that ACLU-TN was represented by WTCLU in the Kendrick litigation, and WTCLU was subject to ACLU-TN’s control; thus ACLU-TN was a party in privity to the Decree. (ECF No. 33-4, 33-7, 33-8.) As a party in privity, ACLU-TN is bound by the Decree, and ACLU-TN’s “legally protected interest” in the Kendrick Decree is violated through a violation of the Decree. Spokeo, 136 S.Ct. at 1548; see Tennessee Ass’n of Health Maint. Organizations, Inc. v. Greir, 262 F.3d 559, 594 (6th Cir. 2001) (“a decree of injunction not only binds the parties but also those identified with them ‘in privity’ with them, represented by them or subject to their control”). As such, ACLU-TN has standing to enforce the Decree as one who suffers an injury-in-fact.
Defendant argues that ACLU-TN and WTCLU exist in a parent-subsidiary relationship, and, as such, ACLU-TN as the parent company does not have standing to sue on behalf of WTCLU, the subsidiary. (ECF No. 22-1 at PageID 296.) Defendant has not alleged that ACLUTN or WTCLU were stock-owning corporations at any point in time; therefore, it appears that
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the entities do not meet the definition of parent and subsidiary companies.7 ACLU-TN is
therefore not precluded from bringing suit based on a parent-subsidiary relationship.
IV. CONCLUSION
For the reasons stated above, the Court GRANTS Defendant’s Motion to Dismiss the
Complaint of the Blanchard Plaintiffs (ECF No. 1) due to lack of standing. All complaints
asserted by Plaintiffs Elaine Blanchard, Keedran Franklin, Paul Garner, and Bradley Watkins
against Defendant City of Memphis are hereby DISMISSED WITHOUT PREJUDICE. The Court DENIES Defendant’s Motion to Dismiss the Complaint of ACLU-TN (ECF No. 16).8
It is so ordered, this 30th day of June, 2017.
/s/ Jon P. McCalla JON P. MCCALLA UNITED STATES DISTRICT JUDGE
7 A parent-subsidiary relationship is generally one where the parent company has the right to vote—or has the power to sell or direct—fifty percent or more of a class of voting security (stock) of the subsidiary. See, e.g., United States v. Bestfoods, 524 U.S. 51, 61 (1998). Tennessee courts have adhered to similar principles, holding that a parent subsidiary relationship is defined by control through ownership of another corporation’s stock. See, e.g., United States v. American Mercantile Corp., 889 F.Supp.2d 1058, 1071 (W.D. Tenn. 2012); Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 652-53 (Tenn. 2009). A parent company does not have standing to sue for the wrong suffered by its subsidiary. MSS, Inc. v. Maser Corp., No. 3:09-CV00601, 2011 WL 2938424, at *2 (M.D. Tenn. July 18, 2011). See also Media Gen., Inc. v. Tanner, 625 F.Supp. 237, 244 (W.D. Tenn. 1985) (citation omitted) (holding that a “parent corporation could not bring suit for diminution in the value of its capital stock because of injury that was actually incurred by its subsidiary”); House v. Estate of Edmondson, 245 S.W.3d 372, 381 (Tenn. 2008) (citation omitted) (“[T]he proper party to bring a claim on behalf of a corporation is the corporation itself.’”).
8 Defendant requests additional time to conduct discovery on the issue of ACLU-TN's standing. (ECF No. 35 at PageID 444.) The Court has found that ACLU-TN has carried its burden of establishing standing. The Court declines to grant Defendant additional time under these circumstances.
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 Case 2:17-cv-02120-JPM-egb Document 151 Filed 10/26/18 Page 1 of 46 PageID 6241

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ELAINE BLANCHARD, KEEDRAN FRANKLIN, PAUL GARNER, and BRADLEY WATKINS,
Plaintiffs (dismissed), and ACLU OF TENNESSEE, INC.,
Intervening Plaintiff, v.
CITY OF MEMPHIS, TENNESSEE, Defendant.

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Case No. 2:17-cv-2120-JPM-egb

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OPINION AND ORDER

Plaintiff ACLU of Tennessee, Inc. (“ACLU-TN”) brings this action against the City of Memphis (“the City”) to enforce a Consent Decree.1 The Consent Decree in question is a 1978 agreement between the City and ACLU-TN, in which the City promised to refrain from specifically defined activities, including investigations into the free exercise of rights protected by the First Amendment. (Consent Decree, Ex. 6.) The Court has already found that the City violated the clear terms of its agreement by gathering information related to the First Amendment rights of Memphis residents. (See O. Summ. J., ECF No. 120.) The Court noted, however, that certain issues could only be decided by trial. (Id.)

1 For ease of reference, the Consent Decree is attached as an appendix to this order.

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A bench trial was held from August 20 to 23, 2018 to address two remaining questions. (ECF Nos. 128-31.) First, the Court heard testimony as to whether the ACLU-TN was the entity that entered into the 1978 agreement. The Constitution requires the Court to dismiss any lawsuit brought by a plaintiff who cannot claim to have been harmed by the defendant. The Sixth Circuit Court of Appeals has interpreted that Constitutional requirement as limiting the enforcement of Consent Decrees to the original entities that entered into the agreement.2 The Court cannot consider the merits of the ACLU-TN’s case unless it was a party to the Consent Decree (or a successor-in-interest to such a party).
Second, the Court heard testimony on how and why the City may have violated its 1978 agreement. The remedy in a lawsuit involving the violation of a court order, like the Consent Decree in this case, is not meant to punish a defendant, but rather to ensure future compliance with the order and to make the plaintiff whole again. The City’s actions, motivations, and internal operations are relevant to the ultimate question of the sanctions necessary to rectify the City’s breach of the Consent Decree.
For the reasons set forth below, the Court finds that the ACLU-TN has demonstrated by a preponderance of the evidence that it was the entity that entered into the 1978 agreement with the City. Thus, the ACLU-TN has standing to bring this lawsuit. The Court, therefore, proceeds to an examination of the City’s actions. The Court finds that the ACLU-TN has shown by clear and convincing evidence that the City:
1) Conducted “political intelligence” as specifically defined and forbidden by the Consent Decree;
2 The parties disagree whether Sixth Circuit precedent allows suits to enforce a Consent Decree by successors-in-interest. The Court does not resolve the question of standing for legal successors at this time.
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2) Operated the Office of Homeland Security for the purpose of political intelligence; 3) Intercepted electronic communications and infiltrated groups through the “Bob
Smith” Facebook account; 4) Failed to familiarize MPD officers with the requirements of the Decree; 5) Did not establish an approval process for lawful investigations into criminal conduct
that might incidentally reveal information implicating First Amendment rights; 6) Disseminated information obtained in the course of an investigation to individuals
outside of law enforcement; and 7) Recorded the identities of protest attendees for the purpose of maintaining a record.
The ACLU-TN has failed to prove other violations of the 1978 agreement. The Court finds that these six violations stem from the City’s failure to familiarize MPD officers with the Consent Decree. Sanctions for contempt of a Consent Decree should ensure future compliance. The Court, therefore, outlines future remedial actions that focus on MPD training and responsible use of social media tools.
In this order, the Court does not sanction the City or its officers for discriminating against certain points of view. 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. In this order, the Court explains in detail how the City has violated its promises, in order to demonstrate how it may comply in the future. The Court recognizes that the requirements of the 1978 Kendrick Litigation Consent Decree impose significant burdens on the City and the MPD. The Court also notes that Memphis has an opportunity to remain the first, and perhaps
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only, city in the country with an established policy for the protection of its residents’ privacy in the face of ever-expanding techniques of electronic surveillance.
I. Standing
The Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” Const. art. III § 2. “[S]tanding is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “[T]he doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). To establish standing, a plaintiff must show that “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan, 504 U.S. at 561). “The [plaintiff] bears the burden of establishing these elements.” Lujan, 504 U.S. at 561.
a. The Underlying 1976 Case: Kendrick v. Chandler
On September 14, 1976, Chan Kendrick and other plaintiffs filed a lawsuit in this Court (the “Kendrick Litigation”) alleging that they were the subjects of unlawful surveillance by the Domestic Intelligence Unit of the Memphis Police Department. (ACLU-TN’s Resp. to the City’s Statement of Undisputed Material Facts (“Pl.’s Resp. Facts”), ECF No. 108-1 ¶ 1; Complaint in the Kendrick Litigation, ECF No. 33-1 at 381-83.3) See also Kendrick, et al. v. Chandler, et al., No. 2:76-cv-00449 (W.D. Tenn. 1978). The plaintiffs in that case alleged that
3All citations to page numbers in docket entries are to the CM/ECF PageID number. 4

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the City and the Memphis Police Department (“MPD”) created the Domestic Intelligence Unit in 1965 to investigate and maintain files on citizens engaging in “non-criminal, constitutionally protected activities which were thought to be ‘subversive’ and/or advocating unpopular or controversial political issues.” (Complaint in the Kendrick Litigation, Ex. 5.) Two years later, on September 14, 1978, this Court closed the Kendrick Litigation by entering a Consent Decree agreed to by the City, the American Civil Liberties Foundation,4 and the American Civil Liberties Union of West Tennessee, Inc. (See Consent Decree, ECF No. 9-1 at 54.) The terms of the City’s agreement are analyzed in more detail in the Court’s discussion of the merits.
The City argues that the ACLU-TN was not a party to the Consent Decree, so any breach would not cause the ACLU-TN the “injury in fact” that Article III standing requires. (ECF No. 142 at 6113-19.) One of the Kendrick Plaintiffs referred to itself as “The American Civil Liberties Union in West Tennessee, Inc.” but no corporation with the name “American Civil Liberties Union in West Tennessee, Inc.” was ever registered with the Tennessee Secretary of State. Plaintiff ACLU-TN argues that “American Civil Liberties Union in West Tennessee, Inc.,” meant the ACLU-TN’s West Tennessee Chapter, a group which was legally indistinguishable from the statewide parent organization that brings today’s lawsuit. (ACLUTN’s Standing Brief, ECF No. 144 at 6163-68.) The City contends that “American Civil Liberties Union in West Tennessee, Inc.” instead referred to some other organization which was completely independent from the ACLU-TN. (City’s Standing Brief, ECF No. 142 at 6113-19.) In the alternative, the City argues that lawsuits brought by chapters were not necessarily brought by the statewide ACLU-TN. (Id. at 6119-20.)
4 It is undisputed that the American Civil Liberties Union Foundation and the ACLU-TN are separate and distinct entities.
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b. Standard of Proof
The parties disagree as to how much proof is enough to demonstrate standing in this case. The Plaintiff has the burden of proving that the Court has jurisdiction. Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 494 (6th Cir. 2015). ACLU-TN argues that it must prove it has standing by a preponderance of the evidence, i.e., that standing is more likely than not, because jurisdiction is normally proved by that level of evidence. See Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401, 404 (6th Cir. 2007). The City disagrees and argues that the ACLU-TN must demonstrate standing by clear and convincing evidence, which is a higher (and more difficult to define) standard of proof. See 21B C. Wright & K. Graham, Federal Practice & Procedure § 5122, pp. 405–411 (2d ed.2005). “Clear and convincing evidence is… not a light burden and should not be confused with the less stringent, proof by a preponderance of the evidence.” Elec. Workers Pension Tr. Fund of Local Union # 58, IBEW v. Gary's Elec. Serv. Co., 340 F.3d 373, 379 (6th Cir. 2003). The City argues that this is an action for contempt of a court order and the standard of proof for contempt actions is clear and convincing evidence, so the standard of proof for the threshold standing question should be clear and convincing evidence as well. In support, the City cites Lujan, which states that “each element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” 504 U.S. at 561 (1992).
The City misreads the Supreme Court’s holding. The cited section of Lujan refers to the “manner and degree” but not the standard “of evidence required at the successive stages of the litigation.” Id. The Supreme Court’s decision governs what a plaintiff must prove, not how she must prove it. Id. (governing the “nature and extent of facts that must be… proved.”) Lujan sets
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forth a rule that governs procedural burdens, like a plaintiff’s burden to show the plausibility of her claims to overcome a motion to dismiss, not evidentiary burdens. Id.
The City’s other cited case law does not support the reading of Lujan that the City advances. In Fair Elections Ohio v. Husted, the Sixth Circuit found that a plaintiff had failed to make a sufficient showing of standing, not because there was an elevated evidentiary burden following from the nature of the underlying action, but because the evidence introduced by the plaintiff was simply not probative at all. 770 F.3d 456, 459-60. Griswold v. Connecticut imposed strict factual requirements for standing but offered no guidance about how those facts must be proven. 381 U.S. 479, 481 (1965). Coyler v. Smith, a case from the Central District of California, holds that standing to disqualify a co-defendant’s lawyer should be proved by clear and convincing evidence because of the “potential abuses” that may arise from attempting to control another person’s lawyers, but provides no guidance on the City’s argument that the standard of proof for standing follows the standard of proof for the merits of the underlying action. 50 F.Supp 2d 966, 971; see also In re Appeal of Infotechnology, Inc., 582 A.2d 215, 221 (Del. 1990).
The default rule is that jurisdiction must be proved by a preponderance of the evidence. Smith, 505 F.3d at 404. The Court has encountered no case law that requires the standard of proof for standing to follow the standard of proof for the underlying lawsuit. Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 572 (6th Cir. 2001) (holding that amount-in-controversy must be proven by a preponderance of the evidence, without reference to the standard of proof for the underlying allegations); accord Iowa League of Cities v. E.P.A., 711 F.3d 844, 870 (8th Cir. 2013) (noting that “[p]arties seeking to litigate in federal court have the burden of establishing jurisdiction, including standing, by a preponderance of the evidence” but making no reference to
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the standard of proof for the underlying action (internal citations and quotation marks omitted)); accord Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003). The Court’s jurisdiction over this contempt action derives from its jurisdiction in the Kendrick Litigation. Leman v. KrentlerArnold Hinge Last Co., 284 U.S. 448, 452–53 (1932). If anything, the Court’s standard of proof for determining standing in this case should follow the standard of proof in the Kendrick Litigation.
The Court also notes that judicial policy favors a preponderance of the evidence standard. “The procedure to enforce a court's order commanding or forbidding an act should not be so inconclusive as to foster experimentation with disobedience.” Maggio v. Zeitz, 333 U.S. 56, 69 (1948). The imposition of a clear-and-convincing standard of proof for jurisdiction to enforce this Court’s orders would reduce the Court’s ability to resolve cases by consent decree in the future, because parties will have reason to doubt they can later enforce them. When viewed ex ante, the City itself benefits from a preponderance standard; had the standard been clear-andconvincing evidence, the City would have had to initially offer more generous terms to ACLUTN to make up for the additional difficulty in future enforcement. In the absence of case law to the contrary and in consideration of the policy interests motivating this area of the law, the Court finds no reason to depart from the default rule in this case. The ACLU-TN needs only prove it has standing by a preponderance of the evidence.
c. Findings of Fact 1. The “American Civil Liberties Union in West Tennessee, Inc.” was a Chapter of the
ACLU-TN The Court begins with the Complaint in the Kendrick Litigation: “[t]he American Civil Liberties Union of West Tennessee, Inc. (‘WTCLU’) is a Chapter of the American Civil
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Liberties Union of Tennessee, Inc.” (Kendrick Complaint, Ex. 5.) The City argues that the description offered in the Kendrick Complaint is inaccurate, and that just because the Kendrick plaintiff named itself a chapter of the ACLU-TN does not make it so. (City’s Brief on Standing, ECF No. 142 at 6114.) Hedy Weinberg, the present Executive Director of the ACLU-TN, testified that regional chapter status required formal acknowledgement from the statewide organization. (Trial Transcript, ECF No. 134 at 5155.) The original charter of the ACLU-TN stated that “[b]y-laws for any Chapter shall not go into effect unless they have been approved by the Board of Directors of the [ACLU-TN].” (Ex. 2.) The City argues that there is clear evidence that the by-laws of other regional chapters were approved by the ACLU-TN, but no evidence has been introduced that shows that a West Tennessee Chapter’s bylaws were ever made effective by a vote of the statewide board. (City’s Brief on Standing, ECF No. 142 at 6114-15.) The City concludes that “no such documentation for the West Tennessee Chapter exists because it did not occur.” (Id. at 6116.) The City proposes that the organization that referred to itself as a chapter of the ACLU-TN in the Kendrick Litigation was some other entity with no formal association with the ACLU-TN. (Id. at 6117-19; see also City’s Pretrial Mem., ECF No. 123 at 5001.)
Notwithstanding the lack of an official document establishing a West Tennessee chapter of the ACLU-TN, the Court finds that the ACLU-TN has proved by a preponderance of the evidence that the “American Civil Liberties Union in West Tennessee, Inc.” was its chapter. As stated above, the Kendrick Complaint explicitly says that the suit is brought by a chapter of the ACLU-TN. (Ex. 5.) The ACLU-TN’s Executive Director in 1976, Chan Kendrick, affirmed when he filed the lawsuit that “he has read the… complaint and knows the contents thereof and that the same are true of his own knowledge.” (Id. at page 12.) The corporate governance of the ACLU-TN supports the same conclusion. The ACLU-TN’s Board of Directors was made up of
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representatives from each “duly-charted” chapter, with boards seats roughly apportioned based on the size of each chapter. (Testimony of Hedy Weinberg, ECF No. 134 at 5120; Ex. 2 at page 2). In the 1970’s, the West Tennessee Chapter was to appoint at least four members to the statewide Board of Directors. (Ex. 99.) The West Tennessee Chapter had five members on the statewide board in 1975, including Bruce Kramer, the lawyer who represented the American Civil Libertes Union in West Tennessee, Inc. (Ex. 3 at page 2; see also Ex. 3 at pages 4, 7 (in which Kramer makes motions which are approved by the board).) To summarize, the American Civil Liberties Union in West Tennessee, Inc. considered itself a Chapter of the ACLU-TN, members of a West Tennessee Chapter had seats on ACLU-TN’s Board of Directors, and Chan Kendrick, the Executive Director of the ACLU-TN, swore that this West Tennessee Chapter was his co-plaintiff. The Court finds that the entity that brought the original Kendrick Litigation was a chapter of the ACLU-TN.
2. If One of its Chapters was a Party, then the ACLU-TN was a Party
The City argues that, even if an ACLU-TN chapter brought the Kendrick Litigation, that does not necessarily mean the ACLU-TN was a party. (City’s Standing Brief, ECF No. 142 at 6119-20.) Hedy Weinberg testified that chapters often decided to initiate litigation independently of the statewide organization. (Testimony of Hedy Weinberg, ECF No. 134 at 5150.) If the decision to litigate can be made independently, the City argues, then the organizations are separate for the purposes of determining who was a party to the Kendrick Litigation. (City’s Standing Brief, ECF No. 142 at 6119-20.)
The ACLU-TN responds that it and its chapters are legally indistinguishable, and that the different chapters are “just names for the same entity” or labels by which “one refers to ACLU-
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TN operations in that specific part of the state.” (ACLU-TN’s Standing Brief, ECF No. 144 at 6166.) As stated above, the chapters together governed the statewide organization; the ACLUTN’s Board of Directors was exclusively made up of representatives from each regional chapter. (Ex. 2 at page 2.) In turn, the ACLU-TN delegated the “authority to direct and govern activities of ACLU in their area” to each chapter “subject to the policies and regulations of the ACLU of Tennessee, Inc.” (Id. at 3.) Michael Cody testified that “I don’t know of anything that happened between ’68 and ’76 down here that wouldn’t have been connected with the statewide organization.” (Testimony of Michael Cody, ECF No. 136 at 5440.) Hedy Weinberg testified that, while the chapter model was in place, she saw “them as one entity because the West Tennessee Chapter doesn't exist without the ACLU of Tennessee.” (Testimony of Hedy Weinberg, ECF No. 134 at 5129.) In other words, the ACLU-TN argues that whether a lawsuit was brought on behalf of a chapter or by the statewide affiliate was a distinction without a difference.
The City has not introduced evidence of any policy or regulation in effect at the initiation of the Kendrick Litigation that would limit the West Tennessee Chapter’s ability to bring this suit with the full authority of the ACLU-TN. Instead, the City relies on the national ACLU’s “Policy [for] Court Awarded Attorneys Fees” as adopted in March 1979. (ECF No. 142 at 6119; see also Policy for Court Awarded Attorneys’ Fees, Ex. 100.) This policy establishes a distinction between “state cases,” which are approved by the state board, and “local cases.” (Policy for Court Awarded Attorneys’ Fees, Ex. 100 at page 2.) The policy required that “[a]ttorneys’ fees received for cases and turned over to the ACLU that are jointly sponsored by chapters and state (affiliates) shall be split 60/40 with 60% of the monies going to where sponsorship originates and work is done.” (Id.) This policy was not in effect when the West
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Tennessee Chapter started the Kendrick Litigation in 1976 or when the Consent Decree was entered in 1978. It was, however, in effect when Bruce Kramer, the attorney for the West Tennessee Chapter, filed a request for an award of attorney’s fees. (See Kendrick Mot. Attorney’s Fees, Ex. 101.) When questioned, Bruce Kramer could not remember whether he had turned over any of the attorneys’ fees to the ACLU-TN. (Testimony of Bruce Kramer, ECF No. 137 at 5520-21.) So, the City argues, there is no evidence that the Kendrick Litigation was an ACLU-TN case.
The City’s argument is based on a limited reading of the attorney’s fee’s policy. Bruce Kramer testified that the Kendrick Litigation received national funding, and the policy states that “a local case will not be eligible to receive state and national monies unless it is also sponsored by the state.” (Id. at 5519; Policy for Court Awarded Attorneys’ Fees, Ex. 100 at page 2.) The City’s argument that the ACLU-TN was not awarded attorney’s fees also ignores a critical portion of the policy, namely that the sixty-forty sharing scheme “applies only to monies over costs and attorneys’ fees.” (Policy for Court Awarded Attorneys’ Fees, Ex 100 at page 2.) In other words, the policy applied to those situations where a court awards fees above and beyond the actual labor and expenses incurred by the attorney. There is no indication in the record that Kramer received “monies over costs and attorneys’ fees,” so he was not obligated to turn over any fees to the statewide ACLU-TN.
The Court finds that the regional chapters were legally indistinct from the statewide ACLU-TN, and that the ACLU-TN delegated to those chapters the power to litigate on its behalf. To the extent that the attorneys’ fees sharing policy was in effect for part of the Kendrick Litigation, the Court finds that national funding also shows that the Kendrick Litigation was
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sponsored by the statewide affiliate. The ACLU-TN has proven by a preponderance of the evidence that it has standing to bring this case.
II. Contempt a. Consent Decrees Generally
The Kendrick Litigation was resolved by a Consent Decree. “A consent decree is essentially a settlement agreement subject to continued judicial policing.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983). “[C]onsent decrees bear some of the earmarks of judgments entered after litigation. At the same time, because their terms are arrived at through mutual agreement of the parties, consent decrees also closely resemble contracts.” Local No. 93, Int'l Ass'n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 519 (1986). Since it resembles a contract, “[t]he scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.” United States v. Armour & Co., 402 U.S. 673, 682 (1971). “A consent decree… should,” in other words, “be strictly construed to preserve the bargained for position of the parties.” Williams, 720 F.2d at 920.
“A consent decree, however, is also a final judicial order,” Williams, 720 F.2d at 920, and carries with it the full power of the Court. Pedreira v. Sunrise Children's Servs., Inc., 802 F.3d 865, 871 (6th Cir. 2015). The “provisions of the consent decree operate as an injunction… The injunctive quality of consent decrees compels the court to: 1) retain jurisdiction over the decree during the term of its existence… 2) protect the integrity of the decree with its contempt powers… and 3) modify the decree should ‘changed circumstances’ subvert its intended purpose.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983); but see Armour & Co., 402
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U.S. at 681–82 (“[T]he decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve.”).
So long as the decree is definite and clear, the Court’s contempt power may be exercised on those who “choose to ignore [the decree’s] mandate.” Gascho v. Glob. Fitness Holdings, LLC, 875 F.3d 795, 800 (6th Cir. 2017) (citing Int'l Longshoremen's Ass'n, Local 1291 v. Philadelphia Marine Trade Ass'n, 389 U.S. 64, 76 (1967)). The Court may hold in contempt anyone who “willfully” disobeys a court order but cannot enforce an order that is vague or that imposes literally impossible requirements on the parties. Marx v. Gen. Revenue Corp., 568 U.S. 371, 382 (2013); Int'l Longshoremen's Ass'n, Local 1291 v. Philadelphia Marine Trade Ass'n, 389 U.S. at 76; United States v. Rylander, 460 U.S. 752, 757 (1983). Contempt sanctions must be restorative and must ensure future compliance with a consent decree, but they are not intended to punish the breaching party. McComb v. Jacksonville Paper Co., 336 U.S. 187, 193 (1949).
The City argues that the Court can only enforce its orders if they are maliciously disobeyed, citing First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 517 (6th Cir. 2002). First Bank applies to exercises of the Court’s inherent power where there is no Court order being violated; the restraint required in that situation is not necessary where the Court has laid out its requirements in an order. 307 F.3d at 516 (considering sanctions for “impermissible conduct that adversely impacts the entire litigation”). For contempt of a court order, the standard is clear: “the [plaintiff] must produce clear and convincing evidence that shows that [the defendant] violated a definite and specific order of the court requiring him to perform or refrain from performing a particular act or acts with knowledge of the court's order.”
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Elec. Workers Pension Tr. Fund of Local Union |58, IBEW v. Gary's Elec. Serv. Co., 340 F.3d 373, 379 (6th Cir. 2003).
b. The 1978 Consent Decree’s General Principles
In pertinent part, the Consent Decree’s “Statement of General Principles” provides as follows:
The provisions of this Decree prohibit the defendants and the City of Memphis from engaging in law enforcement activities which interfere with any person’s rights protected by the First Amendment to the United States Constitution including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose. Furthermore, even in connection with the investigation of criminal conduct, the defendants and the City of Memphis must appropriately limit all law enforcement activities so as not to infringe on any person’s First Amendment rights. (Consent Decree, Ex. 6 at § A.) Accordingly, the Consent Decree (1) prohibits the City from engaging in certain conduct that would impermissibly interfere with the exercise of First Amendment rights,5 (2) regulates the manner in which the City is permitted to interfere with the exercise of First Amendment rights, and (3) requires the City to publicize the Consent Decree and familiarize law enforcement personnel with its requirements. (See id. §§ C-J.) The Court notes that the City agreed to obligations above and beyond those required by the Bill of Rights; the City may violate the Consent Decree without violating the Constitutional rights of its residents. The Court next considers each of the Consent Decree’s provisions in turn.
5 The Consent Decree addresses four categories of prohibited conduct: (1) political intelligence, (2) electronic surveillance for political intelligence, (3) covert surveillance for political intelligence, and (4) harassment and intimidation. (See Consent Decree §§ C-F.)
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c. What “Political Intelligence” Means
The City agreed that it “shall not engage in political intelligence.” (Consent Decree, Ex. 6 at § C(1)). The City and the ACLU-TN agreed to specifically define political intelligence as “the gathering, indexing, filing, maintenance, storage or dissemination of information, or any other investigative activity, relating to any person’s beliefs, opinions, associations or other exercise of First Amendment rights.” (Consent Decree, Ex. 6 at § B(4).) First, the Court notes that the Parties did not include any language in the Consent Decree that defines “political intelligence” in partisan terms. An investigation into Black Lives Matter is a violation of the Consent Decree even if the inquiring officer does not care about that organization one way or the other. Similarly, an investigation by the City into the opinions and associations of a group that opposes certain policies violates the Decree even if the City also investigates another group that supports those same policies. Both of these activities would still constitute the “gathering… of information… relating to any person’s beliefs, opinions, associations or other exercise of First Amendment rights.” In other words, bipartisan or nonpartisan political intelligence is still political intelligence.
The intent relevant to the definition of political intelligence is whether police activities are “investigative.” The Director of Police does not conduct political intelligence by collecting the phone numbers of local activists for future dialogues, if those numbers are openly asked for and freely given. Even though the Director would have “indexed” “information… relating to… [the] exercise of First Amendment rights,” the indexing in question would not be an “investigative activity.” If, on the other hand, the Director instructs officers to datamine social media for activist phone numbers, he commits political intelligence by conducting an investigative gathering of information related to political beliefs.
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The Consent Decree also has an action requirement. Gathering, for example, requires affirmative acts, but simply receiving or inadvertently finding information does not. A police officer does not have to cover his body camera every time he passes someone with a political tshirt, because the information received by the camera about political activities was not affirmatively sought out by the officer. Similarly, a police officer who queries a social media collator for the phrase “kill police,” is not going out of her way to “gather” information related to First Amendment rights, even though her action is definitely investigative in nature. If her search returns information related to a lawful assembly titled “Do Not Kill Police,” her action does not become political intelligence because First Amendment rights were not the focus or subject of her investigative activity. In other words, she inadvertently discovered information related to First Amendment rights, but she was not “gathering” it. On the other hand, an officer who searches for “Black Lives Matter” gathers information related to First Amendment rights, because political beliefs are the subject of his investigative activity. A discovery of a potential criminal act in that search does not change the fact that the information he was gathering related to First Amendment rights.6
The other examples of “investigative activity” provided by the consent decree also evidence an action requirement in the definition of political intelligence. (Consent Decree, Ex. 6 § B(4).) It is difficult to imagine an officer accidentally creating an index of information relating to First Amendment rights.7 The Court notes that given the current state of electronic
6 Many investigations present a grey area. The Consent Decree contemplates this and imposes an approval requirement for lawful investigations of criminal conduct that may implicate First Amendment rights. (See Consent Decree, Ex. 6, § G.) As explained below, the City did not implement the approval process required by the decree.
7 Given the current state of technology, that is. The Court discusses the prospect of applying the Consent Decree in the face of changing technology below.
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information storage, “maintenance” and “storage” may now be passive. In 1978, however, the maintenance and storage of information was an active step that did not happen inadvertently or by accident. The Court’s task in the context of this case is to protect the original intent and purpose of the parties as memorialized in the Consent Decree. Williams, 720 F.2d at 920. The maintenance and storage of information was an active task in 1978, like gathering and indexing still are today. The purpose of the parties as memorialized in the Consent Decree to forbid affirmative investigative acts has not changed, even if what exactly is active and passive has changed with the state of technology.
d. What “for the Purpose of Political Intelligence” Means
Other provisions of the Consent Decree forbid the City from taking actions “for the purpose of political intelligence.” (Consent Decree, Ex. 6 at §§ C.2, D, E, F.) Unlike the blanket ban on political intelligence described above, these provisions necessarily require an inquiry into the motivations of the MPD. The Parties disagree as to whether the Court must determine the purpose of the MPD by objective or subjective evidence. (ACLU-TN’s Merits Brief, ECF No. 143 at 6130-31; City’s Merits Brief, ECF No. 145 at 6179-81.) In other contexts, the Court is not to determine the “purpose” of law enforcement agents by trying to literally deduce the actual thoughts of an officer at the time. Michigan v. Bryant, 562 U.S. 344, 360 (2011). Instead, the Court is to objectively consider the facts and statements in evidence, including testimony, to determine “the purpose that reasonable participants would have had” if they had made the statements, experienced the circumstances, and taken the actions that the subjective person at the center of the inquiry did in fact take. Id. The Court cannot truly know the thoughts of MPD officers, so it will determine motive from the evidence in the record.
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The City points out that the Consent Decree bans certain actions taken for “the purpose of political intelligence” and argues that violations of these provisions therefore require a finding that political intelligence was MPD’s exclusive purpose, rather than one of many motivations. (City’s Merits Brief, ECF No. 145 at 6183.) This interpretation would lead to several problems. First, more than 2,000 individuals make up the MPD, and it seems unlikely that each of them has the exact same purpose at all times.8 To adopt the City’s interpretation would ultimately require the Court to hold that the “purpose” provisions can never be violated, because the MPD can nearly always be said to have more than one purpose. Second, one purpose may lead to another. An officer may sit in his car, for example, for the purpose of observing traffic, which is done for the purpose of writing speeding tickets, which in turn is for the purpose of maintaining safe roads. The MPD may take an action for the purpose of political intelligence while simultaneously being motivated by a genuine desire to preserve public safety. Third, the Court notes that infringements on personal liberty are often accompanied by appeals to public safety.
The City introduced testimony about a July 10, 2016 protest that resulted in a prolonged occupation of the Hernando de Soto Bridge, where Interstate 40 crosses the Mississippi River. (See Testimony of Michael Rallings, ECF No. 137 at 5623-24; Testimony of Stephen Chandler, ECF No. 137 at 5584-5604; see also Ex. 110.) The City argues that many of the actions at issue in this case were undertaken for the purpose of preventing similar incidents that might jeopardize public safety. (City’s Merits Brief, ECF No. 145 at 6175-78.) The Court notes that MPD acted commendably in handling the July 10, 2016 protest, and that there has been no evidence in this case which suggests that public safety was not MPD’s overall objective.
8 See Kenneth A. Shepsle, Congress is a “They,” not an “It”: Legislative Intent as Oxymoron, 12 Int’l Rev. L. & Econ. 239 (1992) (describing the difficulties in ascertaining the motivations of multimember organizations).
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The Consent Decree, however, is clear and unequivocal in its language. Understood in its entirety, the Consent Decree bans investigative activity into the exercise of First Amendment Rights by Memphis residents. Political Intelligence is impermissible as the means of investigation, as the ends of investigation, or as an intermediate step in a larger investigation.9 The City has agreed that it will not engage in certain activity and is bound by that agreement.
e. Violations of the Consent Decree
Once it proved standing, the ACLU-TN only needed to prove one violation of the Consent Decree in order to support a finding of contempt. The Court has already found that the City violated the prohibition on political intelligence by creating and populating a City Hall Escort List based on political affiliations, by disseminating information about lawful gatherings through its Joint Intelligence Briefings, and by deploying plainclothes police officers to photograph and identify participants at political protests. (O. Summ. J., ECF No. 120 at 488082.) The next few pages of the Court’s Opinion have no effect on the whether the ACLU-TN is successful.
The Court discusses specific violations below in detail for two reasons. First, specific Consent Decree violations are relevant to the Court’s determination of what steps are necessary to ensure future compliance. Second, the Court explains what actions violated the decree and why in order to guide future MPD policy.
9 As explained in footnote 6 above, the Consent Decree is not without a procedural framework to address the complexity of criminal investigation. Specifically, Consent Decree § G sets out the procedural steps required to protect First Amendment rights when a lawful criminal investigation “may result in the collection of information about the exercise of First Amendment rights.” The presence of § G does not alter the Statement of General Principles set out in § A and the unequivocal language that the “City of Memphis shall not engage in political intelligence.” (Consent Decree, Ex. 6 at § B.)
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i. The City Violated the Prohibition on Political Intelligence
At trial, the ACLU-TN proved other violations of the blanket prohibition on political intelligence by clear and convincing evidence. MPD’s Real Time Crime Center (“RTCC”) conducted political intelligence when an officer searched its social media collator for all instances of the term “Black Lives Matter,” because the information gathered related to First Amendment Rights. (Ex. 136; Testimony of Bradley Wilburn, ECF 139 at 5867-68.) MPD officers gathered and circulated social media posts about potential boycotts and boycotts are squarely within the protection of the First Amendment. (Exs. 107, 122; Testimony of Eddie Bass, ECF No. 138 at 5738-39.) MPD gathered information on journalists based on their associations with Black Lives Matter. (Testimony of Eddie Bass, ECF No. 138 at 5736-37; Ex. 120 “Below are three twitter accounts for two freelance journalist[s] and one Commercial Appeal journalist who apparently have the trust of the BLM protesters. These accounts seem to provide good real-time information during a protest event.”) MPD indexed information relating to the leadership of lawful protests. (Ex. 38; Testimony of Timothy Reynolds, ECF No. 135 at 5260.) Major Lambert Ross ordered social media monitoring for a “BLM Rally” and a “Community Organizers Cookout.” (Ex. 150.) Each of these represents an affirmative investigative act focusing on First Amendment rights in violation of the Consent Decree.
ii. The City Violated the Consent Decree by Operating an Office for the Purpose of Political Intelligence
The City also promised that it would “not operate or maintain any… unit for the purpose of engaging in political intelligence.” (Consent Decree, Ex. 6 at § C(2)). Unlike the blanket ban on political intelligence above, the City’s intent matters for this provision. To determine the
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purpose of a unit’s operation, the Court examines the objective evidence of that unit’s role within the MPD, with a special emphasis on its interaction with other units.
The evidence clearly and convincingly shows that the Office of Homeland Security (“OHS”) was operated for the purpose of political intelligence. The City has introduced evidence that OHS was initially dedicated to counter-terrorism. (Testimony of Stephen Chandler, ECF No. 137 at 5540-41; 5571, 5727.) The Court finds that this purpose was eventually refocused on political intelligence. Commander Chandler testified that terrorism threats only took up around 35% of OHS’s time when he supervised it in 2016 and 2017. (ECF No. 137 at 5541). Major Eddie Bass testified that “protests involved much of our time” while he was assigned to OHS in 2016 and 2017. (ECF No. 138 at 5727)
The evidence shows that officers throughout MPD came to view OHS as a resource for all investigations into lawful political activity. Lieutenant Colonel Dana Sampietro asked OHS to investigate Memphis Voices for Palestine ahead of a permitted protest, and OHS Sergeant Timothy Reynolds responded with an estimation of Memphis Voices for Palestine’s social media following and a report of their associations with other political activists. (Ex. 64.) Director Rallings ordered OHS officers to prepare a powerpoint presentation for MPD’s command staff. (Testimony of Timothy Reynolds, ECF No. 136 at 5339-5342; Ex. 77). This presentation discussed the beliefs and identities of political activists. (Testimony of Timothy Reynolds, ECF No. 136 at 5342; Ex. 76.) After learning of a potential rally on Commercial Appeal property, Major Watson asked the “Intel section” to investigate. (Ex. 104.) Then-Major Stephen Chandler responded by identifying a political activist as a “regular antagonist usually associated with the CLERB push and the $15/hr minimum wage protest” and provided additional information from
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an OHS “intel summary.” (Id.) OHS was asked to compile a list of boycotts. (Testimony of Stephen Chandler, ECF No. 137 at 5554.)
MPD officers also supplied political intelligence to OHS for further analysis and dissemination within the Department. Even though the event had “no incidents” of violence, a colonel from MPD’s North Main Station sent pictures from a 30-person protest to OHS officers, who identified three activists present as the “usual players.” (Testimony of Stephen Chandler, ECF No. 137 at 5551-53; Ex. 106.) MPD Public Information Officer Louis Brownlee notified OHS officers that a political activist would be present to buy tickets for children at a Malco movie theater. (Ex. 73; Testimony of Timothy Reynolds, ECF No. 136 at 5330-32.) Real Time Crime Center (“RTCC”) officer Grafenreed sent OHS a flyer posted on a political activist’s Facebook page, writing “due to the ‘black lives matter’ on the flyer [I] wanted to pass it along.” (Ex. 61; Testimony of Timothy Reynolds, ECF No. 135 at 5303.)
Taken together, the evidence clearly and convincingly shows that OHS was operated for the purpose of political intelligence. By the admission of former OHS officers, the original counter-terrorism mission of the unit took up a smaller percentage of its time as protests became the primary subject of investigation. MPD, including its command staff, identified OHS as the “intel” unit for any matters related to the practice of rights protected by the First Amendment. (See Ex. 124 (containing an email from an OHS officer with the subject line “Intel for BLM”).) When Officers obtained information related to First Amendment rights, they passed it along to OHS. OHS was maintained for the purpose of political intelligence, because within MPD it was viewed as the source and the processer of information related to First Amendment rights.
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On the other hand, the evidence does not clearly and convincingly show that RTCC was operated or maintained for the purpose of political intelligence. While RTCC officers conducted political intelligence through social media searches, the evidence does not show that RTCC took on a political intelligence role within MPD. Additionally, no evidence has been submitted that suggests that political intelligence took up a significant portion of RTCC’s time or resources.
iii. The City Violated the Consent Decree through the Use of the “Bob Smith” Account
In the 1978 Consent Decree, the City promised it would “not intercept, record, transcribe or otherwise interfere with any communication by means of electronic surveillance for the purpose of political intelligence.” (Consent Decree, Ex. 6 at § D.) It also agreed that no “officer, employee or agent of the City,” would, “for the purpose of political intelligence, infiltrate or pose as a member of any group or organization exercising First Amendment Rights.” (Id. at § E.) In the context of social media, these two provisions are closely intertwined.
Sergeant Timothy Reynolds created a Facebook page using the alias “Bob Smith” in 2009 in order to investigate gang-related activity through social media. (Testimony of Timothy Reynolds, ECF No. 135 at 5230-31.) Beginning in 2016, however, the Bob Smith account was used as a tool to investigate protests on behalf of OHS. (Id. at 5231.) Sergeant Reynolds managed the Bob Smith page “to look like an active account.” (Id. at 5230.) He became Facebook friends with hundreds of individuals, including political activists: “I started friending some people that I thought were popular or might have an idea of what’s going on as far as social activism in the community.” (Id. at 5223-25; Testimony of Timothy Reynolds, ECF No. 136 at 5359.) The Bob Smith account was used to identify political activists who support Memphis Voices for Palestine. (Testimony of Timothy Reynolds, ECF No. 135 at 5306.) It was also used
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to request information on future protests: “Do we have plans where we are going to organize before we hit the street?” (Ex. 72; Testimony of Timothy Reynolds, ECF No. 136 at 5329.) The Bob Smith account was used to “infiltrate” the private “Kessler Associates” Facebook group by winning the approval of political activist Spencer Kaaz. (Testimony of Timothy Reynolds, ECF No. 136 at 5362, 5364-65.)
In its post-trial brief, the City does not contest that the activity of Bob Smith constituted the use of electronic surveillance to record communications, or that Sergeant Reynolds (and, occasionally, other officers) used the Bob Smith account to infiltrate a group exercising First Amendment rights. (See City’s Merits Brief, ECF No. 145 at 6190-93; see also Consent Decree at §§ D, E.) Instead, the City argues that these actions were not undertaken for “the purpose of political intelligence,” because the background motivation for any political intelligence was public safety. (City’s Merits Brief, ECF No. 145 at 6193.)
Sergeant Reynolds testified that the Bob Smith account was used in order to gather information related to First Amendment rights. The infiltration of the Kessler Associates Facebook group was “the test for the Bob Smith account to see if we can anticipate if there’s going to be a protest or not, an unpermitted event.” (Testimony of Timothy Reynolds, ECF No. 136 at 5360.) Sergeant Reynolds infiltrated the Kessler Associates group at the direction of the Chief of Special Operations Michael Hardy. (Id. at 5361.) When he discovered that members of that group were planning “to disrupt the zoo,” Sergeant Reynolds found that “this was kind of interesting to me because this is what I needed to report to the precinct commander and the zoo, that they were going to have some type of protest that was going to disrupt the normal flow of business for the zoo.” (Id. at 5362.) Thus, the evidence is that on the command of his superior, a member of the MPD infiltrated a Facebook group and intercepted their communications to
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determine if they would disrupt the business of the zoo by exercising their First Amendment rights. The ACLU-TN has shown by clear and convincing evidence that the activities of the Bob Smith Facebook account violate the Consent Decree.10
iv. The City Failed to Familiarize Officers with the Contents of the Decree
The City’s other violations are traceable to the City’s failure to police itself. The Consent Decree requires that “the City of Memphis shall familiarize each of its law enforcement personnel with the contents of this Decree in the same manner in which those personnel are instructed about other rules of conduct governing such personnel.” (Consent Decree, Ex. 6 at § J.) The Consent Decree was published on the MPD’s internal website, and Commander Chandler testified that former MPD Director Goodwin “mandated that all officers become familiar with the decree.” (Testimony of Stephen Chandler, ECF No. 137 at 5565.) Guidance on the Consent Decree was provided as a one-page Departmental Regulation in a “voluminous policy and procedural manual.” (Ex. 79; Testimony of Director Rallings, ECF No. 137 at 5615.)
The evidence shows the steps taken were insufficient to comply with the Decree, because MPD officers were not familiar with its contents. Director Rallings testified to only a “general knowledge of the Consent Decree” prior to this litigation. (Testimony of Director Rallings, ECF No. 138 at 5659.) Sergeant Timothy Reynolds did not know what “political intelligence” meant under the Consent Decree. (Testimony of Timothy Reynolds, ECF No. 136 at 5355.) Major Eddie Bass did not believe that OHS was engaged in political intelligence, because the specific
10 The Court has previously noted that, when viewing all facts in the light most favorable to the City, the investigation into “Kessler Associates” appeared to have been a lawful investigation of criminal conduct, namely an attempted hacking into Memphis Zoo Computers. (ECF No. 120 at 4885.) The evidence shows, however, that the hacking incident was discovered after the Bob Smith account had already infiltrated the Kessler Associates group in order to gather information related to future protests. (ECF No. 136 at 5361-65, 5368.)
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beliefs of protesters did not motivate its investigations. (Testimony of Eddie Bass, ECF No. 138 at 5782-83.) Commander Chandler testified that while he supervised OHS he attempted to comply with the requirements of the Consent Decree, but he personally conducted political intelligence during his time there. (Testimony of Stephen Chandler, ECF No. 137 at 5566-67; Ex. 104.)
Nothing in this order should be construed to suggest that these officers in any way lack integrity or dedication to duty. Each exemplified the character and commitment needed in law enforcement professionals. The failure was one of training and inadequate direction over a sustained period of time.
MPD officers did not understand that the Consent Decree provided a specific definition of “political intelligence,” because the City failed to tell them. Departmental Regulation 138, which was the only material available to officers about the Decree, does not define “political intelligence.” (Ex. 79.) The Court finds that the failure to familiarize the officers in OHS and RTCC represents a serious violation of the Consent Decree. As the Court notes more fully in its sanctions section, even simple, selective training given to these units may have completely prevented all violations in this case.11
v. The City failed to Review Lawful Investigations of Criminal Conduct that “may result in the collection of information about” First Amendment Rights
The Consent Decree also requires the MPD Director to formally approve lawful investigations that may incidentally result in the gathering of information related to First
11 The Court notes that Consent Decree training is only required in “the same manner in which those personnel are instructed about other rules of conduct governing such personnel.” (Consent Decree, Ex. 6 at § J.) For patrol officers, inclusion in the general policy and procedures manual may be sufficient.
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Amendment rights. (Consent Decree, Ex. 6 at § G.) As the Court has previously noted, Director Rallings testified that he could not recall approving any such investigation. (See Rallings Dep., ECF No. 107-53 at 3489; O. Summ. J., ECF No. 120 at 4885.) Investigations of Criminal Conduct that may result in the collection of information about First Amendment rights occurred, such as in the case of the investigation of attempted hacking into the Memphis Zoo.12 (Testimony of Timothy Reynolds, ECF No. 136 at 5361-65, 5368.) The City violated the Consent Decree by failing to implement a centralized process for the approval of lawful investigations that may incidentally result in political intelligence. In a separate motion, the City argues that it is impossible for Director Rallings to approve every lawful investigation that may incidentally result in political intelligence. (City’s Mot. Vacate J., ECF 124-1 at 5023-24.) This may be a good argument for delegation of this responsibility, but it is not a defense to neglecting it altogether.
vi. The City Violated the Consent Decree by Disseminating Information Related to First Amendment Rights to Outsiders
The Consent Decree forbids the dissemination of personal information “collected in the course of a lawful investigation of criminal conduct” to persons outside of “another governmental law enforcement agency then engaged in a lawful investigation of criminal conduct.” (See Consent Decree § H(2).) The Court has previously found that such information was in fact disseminated to persons unaffiliated with law enforcement. (O. Summ. J., ECF No. 120 at 4887.) The Court noted that “If this practice was truly inadvertent and ended quickly,
12 As noted above, the hacking attempt was incidentally discovered during an infiltration of Kessler Associates undertaken for the purpose of political intelligence. The subsequent investigation of the hacking attempt was, however, lawful and would have been permissible under the Consent Decree had the Director approved it.
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however, the City may be in substantial compliance with Section H of the Consent Decree.”
(Id.)
The ACLU-TN has shown by clear and convincing evidence that dissemination was not
inadvertent. OHS shared personal information with certain outside individuals, including
Autozone’s Head of Security, upon request and supervisor approval. (Ex. 32; ECF No. 135 at
5245.) While this does not excuse the violation, Major Stephen Chandler testified that he was
concerned that Joint Intelligence Briefings might violate the Consent Decree and eventually
established a process for limiting the dissemination of personal information. (Testimony of
Stephen Chandler, ECF No. 137 at 5567.)
vii. The City Violated the Consent Decree by Recording the Identities of Protest Attendees for the Purpose of Maintaining a Record
The Consent Decree orders that the City:
shall not engage in any action for the purpose of, or reasonably having the effect of, deterring any person from exercising First Amendment rights. As an example, the City of Memphis shall not, at any lawful meeting or demonstration, for the purpose of chilling the exercise of First Amendment rights or for the purpose of maintaining a record, record the name of or photograph any person in attendance, or record the license plate numbers of any person in attendance.13
Consent Decree, Ex. 6 § F(2). ACLU-TN introduced significant evidence that
individuals were identified at protest events to create a record of attendance. RTCC officers
identified individuals at a protest through a live camera feed and an individual posting on
Facebook, and then placed them into a visual relationship map. (Exs. 54, 55, 56.) At a protest
13 The Supreme Court has repeatedly held that revealing a person’s identity may chill the free exercise of First Amendment rights. “The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible.” McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-342 (1995). This principle applies even when the person identified exercises their First Amendment rights in public. Watchtower Bible & Tract Soc'y of New York, Inc. v. Vill. of Stratton, 536 U.S. 150, 166 (2002); Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999).
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march, MPD Colonel Bullock took photographs of individuals, identified participants, and recorded a license plate. (Ex. 60.) Lieutenant Colonel Bass ordered OHS officers to “take photos of those spearheading the demonstrations… for future reference and documentation.” (Ex. 130.) The ACLU-TN has shown by clear and convincing evidence that MPD catalogued participants of peaceful protests as prohibited by the Consent Decree.
viii. The ACLU-TN did not Prove that the City Harassed Anyone
The Consent Decree requires that the City “shall not disrupt, discredit, interfere with or otherwise harass any person exercising First Amendment Rights.” (Consent Decree, Ex. 6 at § F(1).) The ACLU-TN argued that the City discriminated against protests when issuing public assembly permits. (ACLU-TN Merits Brief, ECF No. 143 at 6146.) The evidence does not sufficiently support this argument. The City was flexible with at least one protest, which it approved even though the permit application was late. (ECF No. 139.) The ACLU-TN has submitted evidence that the only two permit denials from October 2015 through August 2016 were both for protest events. (Ex. 133.) The evidence also shows, however, that the City approved the vast majority of public assemblies, including protests. (Id.) An employee of the City’s permitting office testified that the City approved all permits that complied with statutory safety requirements, and that most denials were for failure to file an application in time. (Testimony of Aubrey Howard, ECF No. 139 at 5840.) Without proof that tends to connect the two protest permit denials with an MPD practice, ACLU-TN has not shown that the City interfered with First Amendment rights by imposing a double-standard for protest permitting.
The ACLU-TN offered testimony of community members who described negative experiences with MPD. Keedran Franklin said that he has refrained from visiting family
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members for fear of surveillance. (Testimony of Keedran Franklin, ECF No. 139 at 5941-420.) Reverend Blanchard testified that she was worried about police surveillance and felt targeted. (Testimony of Elaine Blanchard, ECF No. 140 at 5985-86.) “Clear and convincing evidence is a not a light burden.” Gary's Elec. Serv. Co., 340 F.3d at 379. While an individual may have a negative subjective reaction to MPD, the ACLU-TN has specifically failed to prove by clear and convincing evidence that MPD’s actions constituted disruption or harassment, or discredited individuals, or otherwise interfered with the exercise of First Amendment rights.
ix. The ACLU-TN did not Prove that the City Disseminated Information for the Purpose of Political Intelligence
The Consent Decree orders that the City “shall not disseminate damaging, derogatory, false or anonymous information about any person for the purpose of political intelligence, or attempt to provoke disagreement, dissention, or violence between persons.” (Consent Decree, Ex. 6 at § H(2).) The ACLU-TN introduced evidence that suggests MPD may have disseminated false information on at least two occasions: first, by stating that Paul Garner was a member of CLERB; second, by misidentifying a man at a protest as Paul Garner. (See Exs. 104, 105.) The ACLU-TN did not, however, demonstrate that this information was disseminated in order to collect additional information related to First Amendment rights or as part of an attempt to provoke the public. The ACLU-TN has failed to prove that the City violated this section of the decree.
III. Sanctions a. Legal Standard
The Court has a responsibility to enforce its orders through civil sanctions. United States v. State of Mich., 62 F.3d 1418 (6th Cir. 1995). Civil sanctions for contempt of a court order are
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not meant to punish a party. N.L.R.B. v. Aquabrom, Div. of Great Lakes Chem. Corp., 855 F.2d 1174, 1187 (6th Cir.), order amended and supplemented, 862 F.2d 100 (6th Cir. 1988). When the Court imposes civil sanctions, it has two goals. First, a contempt sanction should ensure future compliance with the violated order. McComb v. Jacksonville Paper Co., 336 U.S. 187, 193 (1949). Second, a sanction should provide full remedial relief to the party harmed by the breach. Id.
b. Remedies and Steps for Future Compliance
The Court first considers the remedial relief for ACLU-TN. The Plaintiff has spent considerable time and resources litigating a case that arose from the City’s violation of its legal obligations. The Court finds that the ACLU-TN is entitled to an award of attorney’s fees at the conclusion of this litigation.
The Court turns to the sanctions necessary to ensure compliance with the Consent Decree in the future. The Court notes that the violations in this case appear to stem from a shared misunderstanding of the Decree’s requirements, rather than political favoritism by individual officers. Several officers testified that they did not believe they were conducting political intelligence at OHS. (Testimony of Timothy Reynolds, ECF No. 136 at 5355; Testimony of Eddie Bass, ECF No. 138 at 5782-83; Testimony of Stephen Chandler, ECF No. 137 at 5566-67; Ex. 104.) These MPD officers understood “political intelligence” to mean politically motivated or partisan intelligence. (See Testimony of Timothy Reynolds, ECF No. 136 at 5355; Testimony of Stephen Chandler, ECF No. 137 at 5608.) As explained above, the Consent Decree forbids any investigation into the lawful exercise of First Amendment rights; bipartisan or nonpartisan political intelligence is still political intelligence. The Court acknowledges that this
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misunderstanding predates Director Rallings; former Director Godwin issued a Departmental Regulation about the Consent Decree that did not define its central phrase, “political intelligence.” (Departmental Regulation 138, Ex. 79.) To ensure compliance with the Consent Decree generally, and especially with the requirement that the City familiarize its officers with the contents of the Decree, the Court ORDERS the following:
1) The City shall revise Departmental Regulation 138. (Ex. 79.) The new regulation shall define “political intelligence.” The new regulation shall specify that “political intelligence” includes any investigation into the lawful exercise of First Amendment rights, even if the investigating officer or unit does not have a partisan political motive. The new regulation shall specify that political intelligence is not permissible as a goal of an investigation nor as the means to an end of an otherwise lawful investigation. The new regulation shall inform officers that investigations into unlawful conduct that may incidentally result in the receipt of information relating to First Amendment rights are permissible, but require approval as set out in Consent Decree § G. The City shall submit the revised Departmental Regulation to the Court no later than January 14, 2019 for review and approval.
2) The City shall design training for members of OHS, RTCC, and MPD’s Command Staff. The new training shall define “political intelligence.” The new training shall specify that “political intelligence” includes any investigation into the lawful exercise of First Amendment rights, even if the investigating officer or unit does not have a partisan political motive. The new training shall specify that political intelligence is not permissible as a goal of an investigation nor as the means to an end of an otherwise lawful investigation. The new training shall inform officers that
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investigations into unlawful conduct that may incidentally result in the receipt of information relating to First Amendment rights are permissible, but require approval as set out in Consent Decree § G. No officer may be assigned to RTCC or OHS, or be promoted to the Command Staff without receiving this training. The City shall submit a training plan to the Court no later than January 14, 2019 for review and approval. 3) The City shall establish a process for the approval of investigations into unlawful conduct that may incidentally result in political intelligence.14 While the Court does not decide at this time whether the Consent Decree permits delegation of this task,15 the City’s proposal may, for the time being, proceed as though delegation is permitted. If the City does seek to delegate the approval process set out by § G of the Consent Decree, it shall provide that the process is administered by an officer outside of the direct chain of command of the unit or officer requesting authorization. The City shall establish this process through a proposed written policy that shall be submitted to the Court no later than January 14, 2019 for review and approval. 4) The City shall establish written guidelines for the use of manual social media searches and of social media collators in compliance with the Decree. The City shall make these guidelines available to all officers with access to social media collators,
14 A police officer may, for example, need to “friend” a suspected drug dealer on Facebook as part of an investigation. The officer in question would not be conducting political intelligence, because while he may incidentally obtain information relating to the suspect’s exercise of First Amendment rights, he is not “gathering” that information. This officer does, however, need to seek formal approval, because the investigation “may result in the collection of information about the exercise of First Amendment rights.” (Consent Decree, Ex. 6 at § G.)
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and to all officers assigned to OHS and RTCC. The City shall submit these guidelines to the Court no later than January 14, 2019 for review and approval. 5) The City shall maintain a list of all search terms entered into social media collators or otherwise used by MPD officers collecting information on social media while on duty. This list shall be filed under seal every three months until the Court orders otherwise. The first filing shall be submitted no later than January 14, 2019 and shall reflect all such social media searches conducted from November 1, 2018 through December 31, 2018.
Plaintiff ACLU-TN shall, within 21 days of receipt of materials submitted by the City pursuant to 1, 2, 3, 4, and 5 above, file any objections to said proposals or, if there are no objections, a document stating that there are no objections.
It may be impossible for the Court to provide legal guidance on every situation that MPD will face that may implicate the Consent Decree. To ensure compliance with the Decree and to provide closer guidance on what constitutes political intelligence, the Court will appoint an independent monitor to supervise the implementation of the sanctions described above. The Parties shall submit proposed monitors, including a brief statement of qualifications and experience, by December 10, 2018. Even if the Parties confer and agree on a proposed independent monitor, the Parties shall submit at least two candidates in total. The City shall bear the monitor’s fees and expenses.
IV. The Consent Decree’s Age
The City has separately moved to vacate the Consent Decree, in part because of the substantial societal change that has occurred since 1978. (City’s Mot. Vacate J., ECF No. 124.)
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While the Court will rule separately on that motion, the Court writes to note its awareness of technological change. When the decree was first drafted, MPD’s files were predominately made up of paper records, and the maintenance and storage of information represented a conscious investigative step. Today, the City’s Blue Crush Cameras, through which the MPD maintains and stores terabytes of video footage, do not seem to conduct “investigative activity” by themselves. The Consent Decree’s definition of “maintenance” and “storage” as “investigative activity” is likely outdated.
While certain terms of the Consent Decree may be outdated, the concepts are not, and the dilemma faced by the City is not new. Every community must determine how much of its citizens’ privacy it is willing to sacrifice in the name of public safety. The idea that police should be limited in their powers predates 2018 and 1978. The Court’s duty is to preserve the Consent Decree’s central bargain. See Armour & Co., 402 U.S. at 681-82; Williams, 720 F.2d at 920. In this case, the compromise struck by the ACLU-TN and the City was a specific limitation on the subject matter for police investigations. The Court recognizes that the City granted its residents privacy rights above and beyond those guaranteed by the Constitution, but that may be the Consent Decree’s intended purpose. See Williams, 720 F.2d at 920.
The Court notes that the increasing pace of technological change will present challenges for future application of the Consent Decree. Facial recognition technology, “stingray” cell-site imitation technology, and monitoring of existing electronic means of communication all provide police departments across the country with increasingly unfettered means of observing individuals.16 In the future, algorithmic analysis of public surveillance may turn some
16 See Andrew Guthrie Ferguson, The "Smart" Fourth Amendment, 102 Cornell L. Rev. 547 (2017); Andrew Guthrie Ferguson, The Internet of Things and the Fourth Amendment of Effects, 104
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investigations into passive affairs, eroding the distinction that underpins the definition of “political intelligence.”
Difficulties in applying privacy-protecting doctrines to new technology are not unique to this Decree. See Carpenter v. United States, 138 S. Ct. 2206, 2217 n.3 (2018) (holding that a request for seven days of cell-site location information (“CSLI”) is a search but withholding a ruling on “whether there is a limited period for which the Government may obtain an individual’s historical CSLI free from Fourth Amendment scrutiny, and if so, how long that period might be.”) Some judges and lawyers have suggested that these challenges should be resolved in favor of more stringent privacy doctrines. See Id. at 2262 (Gorsuch, J., dissenting) (“Can the government demand a copy of all your e-mails from Google or Microsoft without implicating your Fourth Amendment rights? Smith and Miller say yes it can--at least without running afoul of Katz. But that results strikes most lawyers and judges today--me included--as pretty unlikely.”) See also, generally, Gerald S. Reamey, Constitutional Shapeshifting: Giving the Fourth Amendment Substance in the Technology Driven World of Criminal Investigation, 14 Stan. J. Civ. Rts. & Civ. Liberties 201, 207–08 (2018) (“The Supreme Court has struggled to find a single, overarching mode of analysis that faithfully accounts for the 18th Century language and concepts of the Fourth Amendment while recognizing the ever-changing investigative techniques
Cal. L. Rev. 805 (2016); Sabrina A. Lochner, Saving Face: Regulating Law Enforcement's Use of Mobile Facial Recognition Technology & Iris Scans, 55 Ariz. L. Rev. 201, 228 (2013) (considering legislation to govern the use of facial recognition technology by police); Nicole B. Cásarez, The Synergy of Privacy and Speech, 18 U. Pa. J. Const. L. 813, 859 (2016) (arguing that modern government activity that is not barred by the First Amendment may nonetheless chill speech).
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of the 21st Century.”).17 The Court cannot anticipate every change that may require a different understanding of the Consent Decree, but that alone is an insufficient reason for setting it aside.
Memphis is unique in having imposed a higher standard on itself by adopting the 1978 Consent Decree, but it is not alone in confronting the questions presented by modern surveillance. Every community must decide how to ensure an appropriate balance between public safety and protecting personal rights. That balance is determined not only by the text of the policies, but also by the actions taken to enforce them. 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. See generally Rachel Levinson-Waldman, Government Access to and Manipulation of Social Media: Legal and Policy Challenges, 61 How. L.J. 523 (2018) (detailing the widespread use of social media monitoring by police on lawful protesters).18 The Court recognizes this may be a heavy burden; being a pioneer usually is.
V. Conclusion
For the reasons set forth above, the Court finds that the ACLU-TN was an original party to the Kendrick Litigation Consent Decree and therefore has the standing necessary to proceed with this litigation. The ACLU-TN proved by clear and convincing evidence that the City is in violation of that Order. Specifically, the City failed to familiarize MPD officers with “political
17 The technological leap caused by automobiles also transformed Fourth Amendment doctrine. See Sarah A. Seo, The New Public, 125 Yale L.J. 1616, 1667-71 (2016) (contemplating a division of police’s regulatory and law enforcement responsibilities).
18 But see Office of the Inspector General for The NYPD, An Investigation Of NYPD’s Compliance with Rules Governing Investigations of Political Activity at Appendix B (Aug. 23, 2016), http://www1.nyc.gov/assets/oignypd/downloads/pdf/oig_intel_report_823_final_for_release.pdf (requiring that “investigations not be based solely on activities protected by the First Amendment” in compliance with a consent decree); but see also at 1 (summarizing NYPD violations of policy).
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Case 2:17-cv-02120-JPM-egb Document 151 Filed 10/26/18 Page 39 of 46 PageID 6279 intelligence” as specifically defined and forbidden by the Consent Decree. This failure led to a shared misunderstanding of the Decree’s requirements and a significant number of violations. The Court imposes sanctions that are designed to ensure future compliance with the bargain struck by the Parties. IT IS SO ORDERED, this 26th day of October, 2018. /s/ Jon McCalla JON P. McCALLA UNITED STATES DISTRICT JUDGE
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 Case 2:17-cv-02120-JPM-egb Document 152 Filed 10/29/18 Page 1 of 4 PageID 6287

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ELAINE BLANCHARD, KEEDRAN FRANKLIN, PAUL GARNER, and BRADLEY WATKINS,
Plaintiffs (dismissed), and ACLU OF TENNESSEE, INC.,
Intervening Plaintiff, v.
CITY OF MEMPHIS, TENNESSEE, Defendant.

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Case No. 2:17-cv-2120-JPM-egb

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ORDER MEMORIALING SANCTIONS

The Court imposed certain sanctions on the City in its October 27, 2018 Order. (ECF No. 151.) For ease of access, the specific requirements of that Order are reproduced below.
The Court finds that the ACLU-TN is entitled to an award of attorney’s fees at the conclusion of this litigation.
To ensure compliance with the Consent Decree generally, and especially with the requirement that the City familiarize its officers with the contents of the Decree, the Court ORDERS the following:
1) The City shall revise Departmental Regulation 138. (Ex. 79.) The new regulation shall define “political intelligence.” The new regulation shall specify that “political

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intelligence” includes any investigation into the lawful exercise of First Amendment rights, even if the investigating officer or unit does not have a partisan political motive. The new regulation shall specify that political intelligence is not permissible as a goal of an investigation nor as the means to an end of an otherwise lawful investigation. The new regulation shall inform officers that investigations into unlawful conduct that may incidentally result in the receipt of information relating to First Amendment rights are permissible, but require approval as set out in Consent Decree § G. The City shall submit the revised Departmental Regulation to the Court no later than January 14, 2019 for review and approval. 2) The City shall design training for members of OHS, RTCC, and MPD’s Command Staff. The new training shall define “political intelligence.” The new training shall specify that “political intelligence” includes any investigation into the lawful exercise of First Amendment rights, even if the investigating officer or unit does not have a partisan political motive. The new training shall specify that political intelligence is not permissible as a goal of an investigation nor as the means to an end of an otherwise lawful investigation. The new training shall inform officers that investigations into unlawful conduct that may incidentally result in the receipt of information relating to First Amendment rights are permissible, but require approval as set out in Consent Decree § G. No officer may be assigned to RTCC or OHS, or be promoted to the Command Staff without receiving this training. The City shall submit a training plan to the Court no later than January 14, 2019 for review and approval.
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3) The City shall establish a process for the approval of investigations into unlawful conduct that may incidentally result in political intelligence. While the Court does not decide at this time whether the Consent Decree permits delegation of this task, the City’s proposal may, for the time being, proceed as though delegation is permitted. If the City does seek to delegate the approval process set out by § G of the Consent Decree, it shall provide that the process is administered by an officer outside of the direct chain of command of the unit or officer requesting authorization. The City shall establish this process through a proposed written policy that shall be submitted to the Court no later than January 14, 2019 for review and approval.
4) The City shall establish written guidelines for the use of manual social media searches and of social media collators in compliance with the Decree. The City shall make these guidelines available to all officers with access to social media collators, and to all officers assigned to OHS and RTCC. The City shall submit these guidelines to the Court no later than January 14, 2019 for review and approval.
5) The City shall maintain a list of all search terms entered into social media collators or otherwise used by MPD officers collecting information on social media while on duty. This list shall be filed under seal every three months until the Court orders otherwise. The first filing shall be submitted no later than January 14, 2019 and shall reflect all such social media searches conducted from November 1, 2018 through December 31, 2018.
Plaintiff ACLU-TN shall, within 21 days of receipt of materials submitted by the City pursuant to 1, 2, 3, 4, and 5 above, file any objections to said proposals or, if there are no objections, a document stating that there are no objections.
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Case 2:17-cv-02120-JPM-egb Document 152 Filed 10/29/18 Page 4 of 4 PageID 6290 It may be impossible for the Court to provide legal guidance on every situation that MPD
will face that may implicate the Consent Decree. To ensure compliance with the Decree and to provide closer guidance on what constitutes political intelligence, the Court will appoint an independent monitor to supervise the implementation of the sanctions described above. The Parties shall submit proposed monitors, including a brief statement of qualifications and experience, by December 10, 2018. Even if the Parties confer and agree on a proposed independent monitor, the Parties shall submit at least two candidates in total. The City shall bear the monitor’s fees and expenses.
IT IS SO ORDERED, this 29th day of October, 2018. /s/ Jon McCalla
JON P. McCALLA UNITED STATES DISTRICT JUDGE
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 Case 2:17-cv-02120-JPM-jay Document 197 Filed 04/05/19 Page 1 of 6 PageID 6846

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ACLU OF TENNESSEE, INC., Intervening Plaintiff,
v. CITY OF MEMPHIS, TENNESSEE
Defendant.

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No. 2:17-cv-2120-JPM-jay

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INTERIM REPORT OF INDEPENDENT MONITOR

Independent Monitor Edward L. Stanton III now submits this Interim Report in response to the Court’s Order of February 28, 2019 (ECF No. 189). The February 28th Order directed the Monitor to consult with Intervening Plaintiff ACLU of Tennessee, Inc., and Defendant City of Memphis, Tennessee, and to make certain inquiries regarding the City’s submissions to the Court of January 14, 2019 (Submissions) (see ECF Nos. 151, 152, 183 & 185), and the ACLU’s objections to them (Objections) (ECF No. 186). In addition to the Monitor’s position regarding those Submissions and Objections, this Interim Report includes the Monitor’s recommendations regarding certain hypothetical scenarios submitted directly to the Monitor by the City (Hypotheticals). The Hypotheticals reflect the City’s stated need “for more immediate answers to questions concerning exigent circumstances.”
I. RECOMMENDATIONS REGARDING THE SUBMISSIONS AND OBJECTIONS
Before the Court directed the Monitor to make the inquiries that this Report addresses, the Monitoring Team conducted a preliminary assessment of the City’s Submissions and the

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ACLU’s Objections. The details of that preliminary assessment are attached as Exhibit 1 to this Report. Overall, the Monitoring Team agreed with the ACLU’s objections, but the team also made several additional recommendations.
Meanwhile, the City revised its Submissions in response to the ACLU’s Objections. The ACLU then responded to the revised submissions with revised objections. (Neither the revised submissions nor the revised objections have been filed with the Court to the best of the Monitor’s knowledge.) Consistent with the February 28th Order, the Monitoring Team has reviewed this latest exchange between the City and the ACLU to determine whether “a subsequent agreement between the parties renders an avenue of inquiry [that the Court directed the Monitor to pursue] unnecessary.” (ECF No. 189 at PageID 6734 n.1.) The full review is attached as Exhibit 2 to this Report and includes the revised submissions and objections themselves as sub-exhibits. That review’s impact on the Court’s Ordered inquiries is as follows:
A. Determine the extent to which MPD officers receive periodic training as to “other rules of conduct governing such personnel.” (Consent Decree § J, ECF No. 151 at PageID 6285.) If the frequency of such training differs by unit, the Monitor should determine the training sequence and / or schedule for each.
The ACLU is satisfied with the City’s latest changes to MPD political intelligence training materials for the Office of Homeland Security, the Real Time Crime Center, and MPD Command Staff. (See Ex. 2, § 2, pp. 4-8.) As such, it appears to the Monitor that this inquiry is now unnecessary. The Monitoring Team nevertheless offers seven recommendations regarding the MPD’s revised training materials. (See ibid.) The team also plans to meet with Lt. Colonel David Rudolph, the officer in charge of the MPD Training Academy, to make more specific
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inquiries regarding MPD training practices.1 The team expects to discuss any recommendations
that result from this meeting either as part of its First Quarterly Report, to be submitted later this
month, or at the scheduled hearing regarding the Submissions and Objections on April 23, 2019.
(See ECF Nos. 189, 195.)
B. Determine the extent to which MPD officers are already trained on First Amendment rights. The Monitor shall also consult with his retained experts and, after they have considered any First Amendment training already received by officers, solicit their opinion as to whether First Amendment concepts should be added to the Consent Decree training and how detailed such explanations should be.
Please see § A above. The ACLU also is satisfied with the City’s latest changes to
Departmental Regulation (DR) 138. (See Ex. 2, § 1, pp. 1-4.) The Monitoring Team nevertheless
offers six recommendations regarding the MPD’s revisions to DR 138. (Ibid.)
C. Explain what “crime analysis or situational assessment reports” are, with special attention to whether their use could implicate the Consent Decree. (See Proposed Authorization for Investigations Form, ECF no. 185-4 at PageID 6673.)
The City submitted three documents to the Court concerning authorization for
investigations that may result in the incidental collection of political intelligence: (1) draft
“Guidelines for Delegation of Authority of Director of Police services to Authorize
Investigations Which May Interfere with the Exercise of First Amendment Rights under Section
G of the Kendrick Consent Decree”; (2) a draft “Authorization for Investigations Which May
Incidentally Result in the Collection of Information Related to the Exercise of First Amendment
Rights Under Section G of Kendrick Consent Decree”; and (3) a draft “Authorization for

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A meeting with Lt. Col. Rudolph originally was scheduled for March 27, 2019, but the

colonel has been out of town.

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Investigations That May Incidentally Result in Political Intelligence.” (See ECF No. 185.) Relevant here, the City’s revisions to the second document include footnotes that define “Situational Assessment Report” and locate the definition for “crime analysis.”2
The City’s revisions to the first document satisfied the ACLU, but the ACLU has made additional recommendations regarding the second and third documents. (See Ex. 2, § 3, pp. 813.) The Monitoring Team agrees with the ACLU’s recommendations for the first two documents but feels that the ACLU’s recommendations regarding the third document may “intrude[ ] into law enforcement sources and methods, some of which could be secret or sensitive.” (Id. at p. 12.) The Monitoring Team made two recommendations regarding the first document (pp. 8-9), four recommendations regarding the second document (pp. 10-11), and one recommendation regarding the third document (p. 12), all of which are detailed in Ex. 2, § 3.
D. Conduct a preliminary survey of how, when, and by whom social media is used for investigations by units or individual officers of the Memphis Police Department, outside of the Office of Homeland Security or the Real Time Crime Center.

The ACLU is satisfied with the City’s revised written guidelines for the use of manual social media searches and of social media collators. (See Ex. 2, § 4, pp. 14-18.) As such, it appears to the Monitor that this inquiry is now unnecessary. The Monitoring Team nevertheless offers four recommendations regarding the revised guidelines. (See ibid.) Relatedly, the ACLU never has made any objection to the first set of social media search terms submitted by the City. (ECF No. 183.) The Monitoring Team made two recommendations for the terms in its

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A Situational Assessment Report is “an after-action report of an incident describing the

incident, MPD’s reaction to the incident, and an analysis of the successes and failures of MPD’s

reaction to the incident.” (Ex. 2, Ex. A.) Crime analysis “is the systematic study of crime and

disorder problems as well as other police-related issues—including socio-demographic, spatial,

and temporal factors—to assist the police in criminal apprehension, crime and disorder

reduction, crime prevention, and evaluation.” (Ibid.)

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preliminary assessment of the Submissions (see Ex. 1, § 5, p. 13) and continues to believe them to be appropriate (see Ex. 2, § 5, pp. 19-20).
II. RECOMMENDATIONS REGARDING HYPOTHETICALS On February 19, 2019, outside counsel for the City of Memphis asked for input from the Monitoring Team regarding nine hypothetical situations. According to outside counsel and City and MPD personnel, the Kendrick Consent Decree and the Court’s contempt orders leave the MPD unable to function in critical ways. On February 22, 2019, Mr. Stanton answered the City’s inquiry by letter, noting that “it is outside the purview of the Monitoring Team’s mandate to answer hypotheticals posed by the City.” He explained further that the Monitoring Team “cannot substitute [its] judgment for that of the Court’s or advise the City as to whether some proposed course of actions complies . . . with . . . Court Orders.” To address the City’s stated need “for more immediate answers to questions concerning exigent circumstances,” however, Mr. Stanton invited the City to “propose[ ] alternative protocols for the[ ] nine scenarios” for the Monitoring Team’s review. In response to Mr. Stanton’s letter, the City put forward alternative protocols for each of the nine scenarios and two additional scenarios on March 12, 2019. Exhibit 3 to this Report contains a description of each scenario, the City’s current policies that concern each scenario, the City’s respective proposed protocols for each scenario, and the Monitoring Team’s assessment of and recommendations regarding each proposed protocol. The City’s initial inquiry, Mr. Stanton’s letter, and the City’s alternative protocols are included as sub-exhibits. Mr. Stanton notes that the City’s inquiries are sensitive and that the City has requested that access to the Hypotheticals be restricted for public-safety reasons.
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III. CONCLUSION The Monitor trusts that this Interim Report satisfies the Court’s inquiries and looks forward to discussing its recommendations and any additional recommendations that comprise the Monitoring Team’s First Quarterly Report at the hearing on April 23, 2019. All members of the Monitoring Team will be present for the hearing. RESPECTFULLY SUBMITTED, this 1st day of April 2019,
/s/ Edward L. Stanton III Edward L. Stanton III (TN BPR #18904) BUTLER SNOW LLP 6075 Poplar Avenue, 5th Floor Memphis, TN 38119 Telephone: (901) 680-7200 Facsimile: (901) 680-7201 edward.stanton@butlersnow.com
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To: From: Date: Subject:

INTERNAL M E M O R A N D U M The Monitoring Team Edward L. Stanton III March 5, 2019 Summary of February 11-12, 2019, Monitoring Team Meeting

OVERVIEW
The Court’s October 26, 2018, Opinion and Order (ECF No. 151) and its October 29, 2018, Order Memorializing Sanctions (ECF No. 152) required the City of Memphis to revise certain Memphis Police Department (MPD) policies and procedures to comply with the consent decree in Case No. 76-449 (Kendrick Consent Decree). As part of this requirement, the Court also ordered that the City of Memphis submit the revised items for the Court’s review and invited the ACLU to respond to the same.
On February 11-12, 2019, we gathered in Memphis, Tennessee, and met with MPD representatives, discussed their observations, and proposed changes to the revised MPD policies and procedures.1 The Monitoring Team reviewed a number of items before making proposals.2 In addition, we reviewed the ACLU’s Response in Opposition to Policies Proposed by Defendant City of Memphis, submitted to the Court on February 4, 2019. (ECF No. 186.)
Please provide your feedback as indicated in the charts below. The feedback will then be reconciled and provided to the Court.

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During the two-day meeting, the Monitoring Team met with the following MPD Command Staff

personnel: Police Director Michael Rallings, Deputy Police Director James M. Ryall, Deputy Chief Frank

Garrett (Uniform Patrol District One), Deputy Chief Terry Landrum (Uniform Patrol District Two),

Deputy Chief Michael Shearin (Investigative Services), Deputy Chief Michael Hardy (Special

Operations), Deputy Chief Don Crowe (Information Systems), and Deputy Chief Sharonda Hampton

(Administrative Services). The Monitoring Team also met with the following Memphis Police

Department officials: Major Stephen Chandler (Information Systems); Major Sharon Cunningham

(Training Academy); Lieutenant Tracey Washington (Training Academy); and Manager John Williams

(Real Time Crime Center). MPD legal counsel were present at each of these meetings.

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Among the items considered were the following: Memphis Police Department Departmental

Regulation 138; Memphis Police Department Political Intelligence Training for the Office of Homeland

Security, the Real Time Crime Center, and the Command Staff; Memphis Police Department

Authorization for Investigations which May Incidentally Result in the Collection of Information Related

to the Exercise of First Amendment Rights Under Section G of Kendrick Consent Decree; Memphis

Police Department Written Guidelines for the Use of Manual Social Media Searches and of Social Media

Collators; and Memphis Police Department List of Social Media Search Terms.

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March 4, 2019 Page 2

RESPONSES TO THE MEMPHIS POLICE DEPARTMENT POLICIES AND TRAINING MATERIALS

1. Departmental Regulation 138 Political Intelligence (Revised)

City of Memphis Submission

ACLU Response to City of Memphis Submission

Departmental Regulation 138 prohibits the Memphis Police Department from engaging in “political intelligence.”
The regulation defines “political intelligence” as “gathering, indexing, filing, maintenance, storage, or dissemination of information, or any other investigative activity, relating to any person’s beliefs, opinions, associations, or other exercise of First Amendment rights.” The definition also includes any investigation into the lawful exercise of First Amendment rights, even if the investigating officer does not have a partisan political motive.
The regulation states that political intelligence is not a permissible goal of an investigation or means to an end of an otherwise lawful investigation, but it permits the incidental receipt of information relating to First Amendment rights during investigations into unlawful conduct. In the

The ACLU raised two proposals. First, the ACLU recommends that Departmental Regulation 138 be further revised to include a definition of “First Amendment rights.” The ACLU argues that the definition of “‘political intelligence’ must be founded on an understanding of what rights are included among First Amendment rights. Accordingly, the ACLU proposes that Departmental Regulation 138 include the Kendrick Consent Decree’s definition of First Amendment rights: “rights protected by the First Amendment to the Constitution of the United States including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publically for any lawful purpose.”
Second, the ACLU recommends that Departmental Regulation 138 link to the text of 28 CFR Part 23, in the same manner that the

Monitoring Team’s Response to ACLU’s Comments Agree

Monitoring Team’s Additional Comments
The Monitoring Team agrees with the ACLU but proposes one addition to the first ACLU recommendation. The Monitoring Team recommends that the definition of First Amendment rights expressly include the right to petition the government.
The Monitoring Team also recommends that Paragraph 3, which states that “any member conducting or supervising such an investigation must bring the matter to the attention of the director of Police Services, or his/her designee, for review and written authorization,” have a time limit for notification added – for instance, “…prior to initiating such an investigation, or, where the possibility of such incidental receipt is discovered after an investigation has commenced, no later than [X] days after such discovery.”

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case of the latter, the Director of Police Services or his Designee must provide written approval.

Departmental Regulation 138 links to the Kendrick Consent Decree and the Opinion and Order. The ACLU argues that linking this text will allow officers to conveniently “deepen their understanding and receive additional guidance on the operation of criminal intelligence… while safeguarding privacy and civil liberties.”

2. Memphis Police Department Political Intelligence Training for the Office of Homeland Security, the Real Time Crime Center, and the Command Staff:

The City of Memphis submitted a Training Plan document and a PowerPoint presentation.

a. Training Plan

City of Memphis Submission
The Training Plan defines “political intelligence” as “gathering, indexing, filing, maintenance, storage, or dissemination of information, or any other investigative activity, relating to any person’s beliefs, opinions, associations, or other exercise of First Amendment rights.” The definition also includes any investigation into the lawful exercise of First Amendment rights, even if the investigating officer does not have a partisan political motive.
The Training Plan states that

ACLU Response to the City of Memphis Submission
The ACLU objects to training that occurs only once in an officer’s career, and it proposes that the training be continuing. The ACLU argues that a short, one-time training presentation would fail to correct the system-wide issues. Instead, the ACLU recommends that the officers receive annual refresher trainings comparable to other critical policies and procedures.

Monitoring Team’s Response to ACLU Agree

Monitoring Team’s Additional Comments
The Monitoring Team recommends that the training incorporate the use of hypothetical examples and be provided to all officers and civilian employees working within or otherwise assigned or detailed to the Memphis Police Department. Recommended training options include the following: providing a oneto two-hour block taught by an instructor who prepares a lesson plan and course evaluations; building the training into existing training models; and using short officer training videos, known as video alerts.

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political intelligence is not a permissible goal of an investigation or means to an end of an otherwise lawful investigation, but it permits the incidental receipt of information relating to First Amendment rights during investigations into unlawful conduct. In the case of the latter, the Director of Police Services or his Designee must provide written approval.

The Memphis Police Department states that the training will be offered annually or on an as needed basis. Further, the Memphis Police Department states that training will be included as part of the mandatory new hire or transfer orientation.

b. PowerPoint Presentation

City of Memphis Submission
The Memphis Police Department includes in its Kendrick Consent Decree PowerPoint the definition of “political intelligence” and an historical explanation of the Kendrick Consent Decree.
The PowerPoint defines “political intelligence” as “gathering, indexing, filing, maintenance, storage, or dissemination

ACLU Response to the City of Memphis Submission
The ACLU objects to the PowerPoint, because the PowerPoint does not provide a sufficient means of understanding the Consent Decree’s contents. Accordingly, the ACLU recommends that a definition of “First Amendment rights” be added to the materials.
The ACLU also recommends that the training materials be augmented with the

Monitoring Team’s Response to ACLU Agree

Monitoring Team’s Additional Comments
The Monitoring Team agrees with the ACLU and suggests also adding language to the slide “Harassment and Intimidation Prohibited,” stating that a valid law enforcement purpose is required.

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of information, or any other investigative activity, relating to any person’s beliefs, opinions, associations or other exercise of First Amendment Rights.”
Additionally, the PowerPoint provides the proper procedure for the following: conducting investigations that might incidentally result in political intelligence, disseminating political intelligence gathered in an authorized investigation, and finding answers for further questions.
The PowerPoint also prohibits harassment and intimidation of persons exercising First Amendment rights.

following: specific examples of what violates the Consent Decree; examples of what constitutes the operation of an office for political intelligence (and what does not); examples regarding the use of the Bob Smith account; examples regarding the dissemination of information related to First Amendment rights; and examples involving recording protest attendees’ identity for the purpose of maintaining a record.
Additionally, the ACLU recommends adding a discussion explaining what does not constitute political intelligence.

3. Authorization for Investigations that may Incidentally Result in the Collection of information Related to the Exercise of First Amendment Rights under Section G of the Kendrick Consent Decree.
The City of Memphis submitted the following items: a draft Policy and Procedure entitled, “Guidelines for Delegation of Authority of Director of Police services to Authorize Investigations Which May Interfere with the Exercise of First Amendment Rights under Section G of the Kendrick Consent Decree;” a draft Policy and Procedure entitled, “Authorization for Investigations Which May Incidentally Result in the Collection of Information Related to the Exercise of First Amendment Rights Under Section G of Kendrick Consent Decree;” and a form entitled, “Authorization for Investigations That May Incidentally Result in Political Intelligence.”
a. Policy and Procedure Guidelines for Delegation of Authority of Director of Police services to Authorize Investigations Which May Interfere with the Exercise of First Amendment Rights under Section G of the Kendrick Consent Decree

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March 4, 2019 Page 6

City of Memphis Submission
The Memphis Police Department draft Policy states that the City of Memphis and the Memphis Police Department shall not engage in political intelligence and “Political intelligence includes any investigation into the lawful exercise of the First Amendment rights, even if the investigating officer does not have a partisan political motive.”
The Policy permits investigations into unlawful conduct that may incidentally result in the receipt of information relating to First Amendment rights, but requires approval from Director of Police Services or Designee. The Designee selection process allows up to three Designees. All Designees must be Command Staff level. The Policy also requires that Director identify each Designee in an interdepartmental communication distributed to Command Staff, all specialized unit supervisors, and the Commander of each precinct. Notably, the Policy prohibits a Designee from being in the direct chain of command of the unit o officer requesting authorization.

ACLU Response to the City of Memphis Submission
The ACLU does not object to the use of a Designee delegation procedure but states that the Guidelines for Delegation proposed are overbroad. The ACLU recommends that the Guidelines be amended to include a procedure for Designees to report to the Director of Police Services. Further, the ACLU recommends that the Guidelines provide that the Director of Police Services remain knowledgeable about and responsible for authorizations under Section G.

Monitoring Team’s Response to ACLU Largely agree

Monitoring Team’s Additional Comments
The Monitoring Team agrees with the ACLU and further recommends that review and recommendation of the delegation be made by competent in-house counsel or other authorized/assigned counsel.
The Monitoring Team is also concerned that the volume of these investigations may make it difficult for the Director of Police Services to oversee all investigations. One suggestion is for the Designee to draft a report and recommendation for the Director of Police Services. In that case, the Director of Police Services may delegate the recommendation process, he but remains ultimately responsible for the conduct of the investigation.

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b. Policy and Procedure: Authorization for Investigations Which May Incidentally Result in the Collection of Information Related to the Exercise of First Amendment Rights Under Section G of Kendrick Consent Decree

City of Memphis Submission ACLU Response to the City of Memphis Submission

Monitoring Team’s Response to ACLU

Monitoring Team’s Additional Comments

Key parts of this policy provide the following: officers may not engage in political intelligence; “Political intelligence includes any investigation into the lawful exercise of the First Amendment rights, even if the investigating officer does not have a partisan political motive;” investigations into unlawful conduct that may incidentally result in the receipt of information relating to First Amendment rights are permitted, but also require approval from Director of Police Services or Designee; when an officer learns that an investigation into unlawful conduct may incidentally result in the collection of information about the exercise of First Amendment rights, the investigation must be brought to the attention of the Director or his Designee; and written authorization is required if there is an investigation into unlawful conduct that may incidentally result in the collection of information about the exercise of First

The ACLU objects and recommends that the Authorization Policy discuss when a lawful criminal investigation is likely to result in the collection of information about (or to interfere with) the exercise of First Amendment rights, as well as a discussion of what constitutes First Amendment rights. The ACLU further recommends that a discussion about when Section G applies be included. The ACLU objects to excluding certain activities from the authorization process.

Agree

The Monitoring Team recommends that the policy include a definition of “situational assessment.”
The Monitoring Team also recommends further discussion of whether situational assessment reports should be excluded from the authorization process.

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Amendment rights.

c. Form: Authorization for Investigations That May Incidentally Result in Political Intelligence

City of Memphis Submission

ACLU Response to the City of Memphis Submission

Monitoring Team’s Response to ACLU

Monitoring Team’s Additional Comments

The form states that any officer conducting an investigation into unlawful conduct that may incidentally result in the gathering of political intelligence or information related to the exercise of First Amendment rights requires approval by Director of Police Services or his Designee, and it sets a 90 day time limit for such investigations. It also provides for up to a 90 day extension.

The ACLU objects to the form, because it does not provide a place for the written findings as required by Section G. Instead, the form merely includes a statement that the “investigation meets the requirements of Section G.” Therefore, the ACLU recommends that a space be provided for findings.

Agree

Without specific findings supporting the authorization, no record will exist to ensure consistency and compliance.

The form also includes a section that states, “Based on the foregoing, and all information known to me, I have determined that this investigation meets the requirements of Section G of the Kendrick Consent Decree, and I hereby approve the investigation. This authorization will expire 90 says (sic) from the date of my signature.”

4. Written Guidelines for the use of Manual Social Media Searches and of Social Media Collators

City of Memphis Submission

ACLU Response to the City of Memphis Submission

Monitoring Team’s Response to ACLU

Monitoring Team’s Additional Comments

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The Guidelines state that the purpose is to establish rules for use of social media via manual social media searches and through use of social media collators for the Office of Homeland Security and the Real Time Crime Center officers and any officers with access to social media collators.
They also define criminal intelligence information; criminal nexus, criminal procedure; undercover account; political intelligence; public domain; reasonable suspicion; social media; social media collator; social media sites; and valid law enforcement purpose.
Among other

The ACLU raises several concerns and makes recommendations. First, the ACLU states its concern that the Guidelines govern only officers who use social media collators and those officers assigned to the Office of Homeland Security and the Real Time Crime Center. The ACLU argues that previous violations of the Consent Decree involved officers in other units. Therefore, the ACLU recommends that all officers who use social media comply with these Guidelines.

Agree with first and third, and fourth recommendation. Disagree with second recommendation. Offer several additional recommendations.

Second, the ACLU recommends that the Guidelines specify when officers may use social media for personal purposes and when they may use their personal social media accounts for law enforcement purposes. Accordingly, ACLU suggests that the Guidelines provide that the social media policy is inapplicable only when an officer uses social media while not on duty and for personal reasons.

Third, the ACLU recommends that the

The Monitoring Team made several observations and recommendations. First, the Monitoring Team agrees that the Guidelines should apply to all officers, for the reasons provided by the ACLU.
Second, the Monitoring Team does not agree with the ACLU about when the Guidelines are applicable. The Team is concerned that an officer could attempt to justify social media surveillance disguised as personal curiosity. Therefore, the Monitoring Team recommends that the following language be added to the Guidelines:
(1) “Use of social media while on duty should be conducted for police business purposes only, and only in compliance with this Policy;” and
(2) “The officer’s personal use of the social media platform and any searches conducted for personal reasons are nevertheless subject to this reporting requirement, when:
•The information searched, gathered,

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items, the Guidelines prohibit the Memphis Police Department from using social media for conducting political intelligence and limit scope of viewable accounts following a homicide or critical events.

Guidelines relating to the dissemination of information from social media be revised for clarity. Specifically, the ACLU requests that a clear statement be included that information obtained from social media may not be disseminated beyond those recipients authorized by the Guidelines.

Fourth and finally, the ACLU recommends that the “Command Staff” be defined in the Guidelines to avoid confusion.

collected, stored or disseminated involves, includes, intersects or overlaps with, or otherwise relates to or has direct or derivative use in any investigation, inquiry or matter involving official law enforcement or department interest; and
•The officer has knowledge of such investigation, inquiry, or matter, or should reasonably have such knowledge.”
Third, the Monitoring Team agrees with the ACLU that the Guidelines regarding the dissemination of social media information should be revised for clarity.
Fourth, the Monitoring Team agrees that “Command Staff” should be defined.
Fifth, the Monitoring Team recommends that the “Document and Retention” section be revised for clarity. In particular, the sentence beginning “The search histories of each social media platform searched

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by an MPD officer shall be retained…” should be clarified; possible alternatives include “The search histories of an MPD officer on any social media platform shall be retained…”, or “All social media searches by any MPD officer shall be retained…”.
In addition, the Monitoring Team anticipates that the 90-day reporting period is going to become confusing when applied. Right now, the 90-day clock appears to start when any given search happens; it is not clear whether that is what is intended, or if there is supposed to be a regularized reporting period to match the city’s quarterly reporting requirements. One proposal is for searches to be reported at or shortly after the time they happen, rather than waiting for three months to report them.
Sixth, the Monitoring Team recommends there be a definition of “special events.”
Seventh, the Monitoring Team proposes adding a

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disciplinary consequence for knowing failure to adhere.
Eighth, the Monitoring Team recommends incorporating a procedure for audits of social media searches.
Ninth, the Monitoring Team recommends that the policy state that an undercover social media account may not impersonate an actual person known to the subject of the investigation.
Tenth and finally, the Monitoring Team recommends that language be added addressing the monitoring of juveniles on social media— in particular, if there are restrictions on monitoring or targeting juveniles as part of other law enforcement practices, policies, or procedures, those should be considered for incorporation into the online sphere. The Monitoring Team plans to request copies of any existing practices, policies, or procedures regarding the monitoring or targeting of juveniles, and expects to propose

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additional policy language after reviewing those materials.

5. List of Social Media Search Terms

City of Memphis Submission

ACLU Response to the City of Memphis Submission

Monitoring Team’s Response to ACLU

The Memphis Police Department states that its search terms include mainly names of individuals.

The ACLU does not object to this submission.

Disagree

Monitoring Team’s Additional Comments
The filing certifies that none of the names searched for were “associated with a protest or other scenario in which First Amendment rights were being exercised.” Each search must also have a valid law enforcement purpose, however. The current certification is important but not sufficient; the Monitoring Team recommends that for future search term productions, the police department also certify that each search had a valid law enforcement purpose. The Monitoring Team also recommends that the police department certify that each search term produced in this submission had a valid law enforcement purpose; if that certification is not possible, the Monitoring Team recommends that the department provide an explanation.
The Monitoring Team also recommends that the department provide an explanation for the use of the word “protest” as a search term in conjunction with the words “St. Jude” and “marathon.”

46898850.v1

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M E M O R A N D U M

To:

The Monitoring Team

From: Edward L. Stanton III

Date:

March 31, 2019

Subject: The Monitoring Team's Comments on the City's Revised Submissions to the Court

OVERVIEW
As you recall, the Court ordered the City to make several submissions by January 14, 2019, as a start to achieving compliance with the Kendrick Consent Decree. The City made the required submissions (see ECF Nos. 183, 185), and the ACLU then objected to those submissions on February 4, 2019 (see ECF No. 186). This team reviewed the City’s submissions and the ACLU’s objections and prepared a set of recommendations in late February and early March.

The City subsequently revised its submissions in response to the ACLU’s objections and sent them to the ACLU. (See Exhibit A.) The ACLU then responded to the revisions. (See Exhibit B.) Upon request, the City provided both the revised submissions and the ACLU’s responses to the team. Please provide your feedback regarding the same as you did with the original submissions and objections. The feedback will then be reconciled and provided to the Court.

RESPONSES TO THE MEMPHIS POLICE DEPARTMENT POLICIES AND TRAINING MATERIALS

1. Departmental Regulation 138 Political Intelligence (Revised)

Monitoring Team’s Prior Feedback.
First, the

Description of the City’s Revised 1/14 Submissions, Provided to the ACLU on 2/11.
First, the City

Description of the ACLU’s Response to the City’s Revised Submissions, Provided to the City on 3/14. The ACLU

Does the Monitoring Team Agree or Disagree with the ACLU’s Response?
Agree

Monitoring Team’s Recommendations to the Court.
First, the Monitoring

EXHIBIT 2

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Monitoring Team recommended that the definition of First Amendment rights expressly include the right to petition the government.
Second, the Monitoring Team recommended that the policy require a time limit for notification when an officer learns that investigation may incidentally result in the receipt of First Amendment information – for instance, “…prior to initiating such an investigation, or, where the possibility of such incidental receipt is discovered after an investigation has commenced, no later than [X] days after such discovery.” Currently the policy states the following: “Any member conducting or supervising such an investigation must bring the matter to the attention of the director of Police Services, or his/her designee, for review and written authorization.”

added a definition of First Amendment rights: “First Amendment rights are rights protected by the First Amendment to the constitution of the United States, including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose.”
Second, the City provided a hyperlink to 28 CFR 23.

stated that the First Amendment definition and the hyperlink satisfied their objections.

Team agrees that the proposed First Amendment rights definition is sufficient.
Second, the Team reasserts and incorporates here its recommendation that there be a time limit to notify the Director/ Designee after an officer learns that investigation may incidentally result in the receipt of First Amendment information.
Third, the Team recommends adding language to the fourth paragraph to state as follows: “No member shall knowingly, intentionally or recklessly facilitate or cause the interception, recording, transcription of— or otherwise interfere with or cause, any interference with any communications by means of electronic or covert surveillance for the purpose of gathering political intelligence.”
Fourth, the Team recommends revising the second sentence in the fourth paragraph as

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follows: “No member shall engage in any action or disseminate damaging, derogatory, false or anonymous information about any person which will deprive any individual of their First Amendment Rights; nor will any member encourage, cooperate with, or contract with any local, state, federal or private agency to plan or conduct any investigation for the purpose, expectation or anticipation of political intelligence.”
Fifth, The Team recommends revising the fifth paragraph as follows: “Investigations into unlawful conduct that reasonably may be expected to result incidentally result in the receipt of information relating to First Amendment rights are permissible, but require approval by the Director of Police Services or his/her designee. Any member conducting or supervising such an investigation must bring the matter to the attention of the Director of Police Services, or his/her designee, for

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review and written authorization.”
Sixth, the Team recommends revising the last sentence in the fifth paragraph as follows: “An extension may be granted in writing by the Director or his/her designee for periods of up to an additional ninety (90) days; and in extraordinary circumstances where warranted, additional 90-day periods as documented and approved by the Director or his Designee.”

2. Memphis Police Department Political Intelligence Training for the Office of Homeland Security, the Real Time Crime Center, and the Command Staff:
The City of Memphis submitted a Training Plan document and a PowerPoint presentation.
a. Training Plan

Monitoring Team’s Prior Feedback.
The Monitoring

Description of the City’s Revised 1/14 Submissions, Provided to the ACLU on 2/11.
First, the City

Description of the ACLU’s Response to the City’s Revised Submissions, Provided to the City on 3/14. The revisions

Does the Monitoring Team Agree or Disagree with the ACLU’s response.
Agree

Monitoring Team’s Recommendations to the Court.
The Monitoring Team

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Team recommended that the training incorporate the use of hypothetical examples and be provided to all officers and civilian employees working within, or otherwise assigned or detailed to, the Memphis Police Department. Recommended training options included the following: providing a one- to two-hour block taught by an instructor who prepares a lesson plan and course evaluations; building the training into existing training models; and using short officer training videos, known as video alerts.

removed language stating, “[t]raining will be offered annually, or on an ‘as needed’ basis for future members of OHS, RTCC, and/or MPD’s Command Staff.”
Second, the City added the following: “Annual [i]n[s]ervice training for members of OHS, RTCC, and MPD's Command Staff will be required, and additional training will be offered on an ‘as needed’ basis.”

addressed the ACLU’s concerns.

agrees with the revisions but recommends adding a requirement that the training be updated annually to track changes in relevant laws and MPD policies.

b. PowerPoint Presentation

Monitoring Team’s Prior Feedback.

Description of the City’s Revised 1/14 Submissions, Provided to the ACLU on 2/11.

The Monitoring Team suggested adding language to

First, the City added the following language to its presentation: “First

Description of the ACLU’s Response to the City’s Revised Submissions, Provided to the City on 3/14. The ACLU recommended revisions to slide 14 that states, “Real Time Crime Center’s

Does the Monitoring Team Agree or Disagree with the ACLU’s response? Agree

Monitoring Team’s Recommendations to the Court.
First, the Monitoring Team agrees with the revisions but recommends that the City update slide 4, showing DR 138, with

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the slide “Harassment and Intimidation Prohibited,” stating that a valid law enforcement purpose is required.

Amendment rights are rights protected by the First Amendment to the constitution of the United States, including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose.”
Second, the City added a slide with examples of impermissible political intelligence and prohibited conduct. The examples primarily addressed gathering and/or indexing information about groups such as Black Lives Matter and other community organizers.

monitoring of stationery and mobile cameras is not political intelligence.” The ACLU believes that this may not necessarily be true, because some of the stationary cameras and the mobile units could be positioned in such a way that they are intended to capture political intelligence. Accordingly, the ACLU recommended that this example be clarified.

Third, the City added a slide with examples of conduct that does

revised DR 138 that includes the new definition of First Amendment rights.
Second, regarding slide 7, the third bullet states that MPD actions shouldn’t be for purpose of, or have the effect of, deterring exercise of First Amendment rights. The example below that, however, only refers to recording names or license plates for the purpose of chilling the exercise of First Amendment rights (or maintaining a record). Therefore, the Monitoring Team recommends that the example incorporate the “reasonable effect” language: “MPD shall not record… for the purpose of chilling the exercise of First Amendment rights or for the purpose of maintaining a record of that gathering, or where such recording will reasonably have the effect of deterring any person from exercising First Amendment rights.”
Third, regarding slide 12, bullet 1: in light of the fact that MPD no

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not constitute political intelligence.

longer uses social media collators, the Team recommends adding language about non-collator searches to ensure that it is comprehensive. Thus, the example would provide as follows: “An MPD officer searches a social media collator or platform for all instances….”
Fourth, regarding slide 14, the Team recommends revising the language to provide: “An MPD officer wearing a body camera that has been activated pursuant to MPD policy does not have to cover the camera every time he or she passes...”
Fifth, regarding the last bullet on slide 14, the Team believes that the search “kill the police” could incidentally collect information related to First Amendment protected rights and would therefore require approval first. Accordingly, the Team recommends either removing or clarifying this example.
Sixth, more generally,

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the Team recommends that the City’s examples of community organizers not single out one or two named groups.

3. Authorization for Investigations that may Incidentally Result in the Collection of information Related to the Exercise of First Amendment Rights under Section G of the Kendrick Consent Decree.

The City of Memphis submitted the following items: (1) a draft Policy and Procedure entitled, “Guidelines for Delegation of Authority of Director of Police services to Authorize Investigations Which May Interfere with the Exercise of First Amendment Rights under Section G of the Kendrick Consent Decree”; a draft Policy and Procedure entitled, “Authorization for Investigations Which May Incidentally Result in the Collection of Information Related to the Exercise of First Amendment Rights Under Section G of Kendrick Consent Decree”; and a form entitled, “Authorization for Investigations That May Incidentally Result in Political Intelligence.”

a. Policy and Procedure Guidelines for Delegation of Authority of Director of Police services to Authorize Investigations Which May Interfere with the Exercise of First Amendment Rights under Section G of the Kendrick Consent Decree

Monitoring Team’s Prior Feedback.
First, the Monitoring Team recommended that review and recommendation of the delegation be made by competent in-house counsel or

Description of the City’s Revised 1/14 Submissions, Provided to the ACLU on 2/11.
The City added language to the policy stating,
“Each designee shall report directly to the

Description of the ACLU’s Response to the City’s Revised Submissions, Provided to the City on 3/14. The revisions addressed the ACLU’s concerns. The ACLU appreciated the specific

Does the Monitoring Team Agree or Disagree with the ACLU’s response?

Monitoring Team’s Recommendations to the Court.

Agree

First, the Monitoring Team recommends revising the last sentence of the policy to state as follows: “The Director shall have the authority to

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other authorized/assigned counsel.
Second, the Monitoring Team was concerned that the volume of these investigations would make it difficult for the Director of Police Services to oversee all investigations. The Team suggested that the Designee draft a report and recommendation for the Director of Police Services. In that case, the Director of Police Services could delegate the recommendation process but remain ultimately responsible for the conduct of the investigation.

Director on the last Friday of every month. The Designee's report to the Director shall include a description of every investigation authorized by the Designee that may incidentally result in the receipt of information relating to First Amendment rights. The Designee's report shall include the date of the request for authorization, the name of the requesting officer, a description of the investigation, and the expected duration of the investigation. The Director shall have the authority to rescind authorization for any investigation that the

timeframe for reporting and the ability of the Director to rescind the authorization.

rescind authorization for any investigation that the Director deems to violate the letter or intent of the department prohibition against the gathering of political intelligence, or in cases in which either the initial, authorized investigative goals or purposes no longer exist; or when political intelligence collection is no longer merely incidental.”
Second, the Team recommends that the policy also be revised as follows: “Each designee shall report directly to the Director on the last Friday of every month that is a regular business day.”

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Director deems to constitute political intelligence.”

b. Policy and Procedure: Authorization for Investigations Which May Incidentally Result in the Collection of Information Related to the Exercise of First Amendment Rights Under Section G of Kendrick Consent Decree

Monitoring Team’s Prior Feedback.
First, the Monitoring Team recommended that the policy include a definition of “situational assessment.”
Second, the Monitoring Team recommended further discussion of whether situational assessment reports should be excluded from the authorization process.

Description of the City’s Revised 1/14 Submissions, Provided to the ACLU on 2/11.
First, the City added a definition of First Amendment rights:
“First Amendment rights are rights protected by the First Amendment to the constitution of the United States, including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose.”
Second, the City removed its initial list of activities that do not require a written authorization from

Description of the ACLU’s Response to the City’s Revised Submissions, Provided to the City on 3/14.
First, the ACLU had some concerns about the absolute nature of the exclusions; however, it commented that the revised exclusions are clearer and give good examples where authorization would not be needed.
Second, the ACLU suggested that there may be times when an investigation starts out in one of the excluded categories and evolves into

Does the Monitoring Team Agree or Disagree with the ACLU’s response? Agree

Monitoring Team’s Recommendations to the Court.
First, the Monitoring Team would like to know what policy governs the dissemination of First Amendment information to law enforcement, referenced in the “Dissemination” section on page 3.
Second, the Team recommends that the City add the warning suggested by ACLU.
Third, the Team recommends revising two typos: on page 1: “unlawful conduct which may incidentally result in the in the receipt of information….” On page 3 “…in order to disrupt the Council

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Director/Designee.
Third, the City added a footnote defining “assessment reports” and added a footnote stating where to find a definition for “crime analysis.”
Fourth, the City added examples of investigations of certain unlawful conduct that might incidentally result in the collection of information about First Amendment rights. Examples included a planned flash mob at a shopping center and a threat by a person to bring a gun into a City Council meeting.

something that does implicate First Amendment rights. Accordingly, the ACLU recommended that the City add a warning or caveat that officers involved in any investigation should remain vigilant for any changes that would trigger the need for authorization.

Fifth, the City added a list of activities that do not require prior written authorization from the Director/ Designee. The list included the following: (1) initial, on scene active investigation into the planning or occurrence of a criminal act; (2) criminal intelligence

meeintg.”
Fourth, the Team recommends adding the following note at the end of the “Exclusions” section: “There may be times when an investigation starts out in one of the excluded categories and evolves into something that does implicate First Amendment rights. Accordingly that officers involved in any investigation should remain vigilant for any changes that would trigger the need for authorization.”

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development; (3) investigation or monitoring organized gangs reasonably suspected of criminal activity involvement; (4) the ongoing, gathering, investigating, and monitoring of suspected and potential sex crimes; and (5) crime analysis and reporting.

c. Form: Authorization for Investigations That May Incidentally Result in Political Intelligence

Monitoring Team’s Prior Feedback.
The Monitoring Team recommended that there be a place for specific findings on the form. The Monitoring Team stated that without specific findings supporting the authorization, no record will exist to ensure consistency and compliance.

Description of the City’s Revised 1/14 Submissions, Provided to the ACLU on 2/11. First, the City added a space to document a report number.
Second, the City added the following language to its investigation approval section: “1.This investigation does not violate the provisions of the Kendrick Consent

Description of the ACLU’s Response to the City’s Revised Submissions, Provided to the City on 3/14. The ACLU recommended that the City to add a separate section for the Director or Designee to list the precautions and techniques to be employed during the investigation. The ACLU is particularly concerned that these precautions and techniques actually meet the Consent Decree’s

Does the Monitoring Team Agree or Disagree with the ACLU’s response? Largely disagree

Monitoring Team’s Recommendations to the Court.
The Monitoring Team is concerned that the ACLU’s response to the City’s revisions intrudes into law enforcement sources and methods, some of which could be secret or law enforcement sensitive.

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Decree; and 2.the expected collection of information about, or interference with, First Amendment rights is unavoidably necessary for the proper conduct of the investigation; and 3.every reasonable precaution has been employed to minimize the collection of information about, or interference with, First Amendment rights; and 4. the investigation employs the least intrusive technique necessary to obtain the information.”

requirement that they be the least intrusive means. Alternatively, the ACLU suggested that the applying officer could list the precautions and techniques and have the authorizing officer sign off them.

Third, the City added more space for the officer to provide his reasons for extending the investigation

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authorization.

4. Written Guidelines for the use of Manual Social Media Searches and of Social Media Collators

Monitoring Team’s Prior Feedback.
The Monitoring Team made several observations and recommendations. First, the Monitoring Team agreed that the Guidelines should apply to all officers for the reasons provided by the ACLU in its objections.

Description of the City’s Revised 1/14 Submissions, Provided to the ACLU on 2/11.
First, the City revised the scope to include all MPD officers who utilize social media during the course of their duties, as well as to all MPD personnel with access to social media collators.

Description of the ACLU’s Response to the City’s Revised Submissions, Provided to the City on 3/14. The revisions satisfied the ACLU’s objections.

Second, the Monitoring Team did not agree with the ACLU about when the guidelines are applicable. The Team was concerned that an officer could attempt to justify social media surveillance

Second, the City defined “Command Staff” and “criminal investigation.” It revised its criminal intelligence definition for clarity, and removed its

Does the Monitoring Team Agree or Disagree with the ACLU’s response?
Largely agree

Monitoring Team’s Recommendations to the Court.
First, the Monitoring Team reasserts and incorporates its original recommendations.
Second, the Monitoring Team believes the description of a situational assessment report isn’t consistent with the definition on page 3 of the Authorization for Investigations. There, a situational assessment report is described as an “after-action report of an incident describing the incident, MPD’s reaction to the incident, and an analysis of the

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disguised as personal curiosity. Therefore, the Monitoring Team recommended that the following language be added to the Guidelines: (1) “Use of social media while on duty should be conducted for police business purposes only, and only in compliance with this Policy;” and (2) “The officer’s personal use of the social media platform and any searches conducted for personal reasons are nevertheless subject to this reporting requirement, when: •The information searched, gathered, collected, stored or disseminated involves, includes, intersects or overlaps with, or otherwise relates to or has direct or derivative use in any investigation, inquiry or matter involving official law enforcement or department interest; and •The officer has knowledge of such investigation,

“criminal nexus, criminal predicate” and “reasonable suspicion” definitions.
Third, the City revised its policy to provide, “the officer’s personal use of social media platform and any searches conducted for personal reasons while not on duty are not subject to this reporting requirement.”
Fourth, the City added language to its rule on dissemination. The additional language provides, “information gathered from social media may not be forwarded or shared beyond those who are authorized by this Policy.” Additionally, the City added language stating, “[a]ny information gathered and retained from

successes and failures of MPD’s reaction to the incident;” here, it appears that a situational assessment report would be prepared prior to an incident. Therefore, the Team recommends that the City clarify when a situational assessment report is prepared and for what purpose. In addition, the Team recommends adding language explicitly stating how the information gathered for a situational assessment report about an event involving First Amendment-protected activity may be used, stored, disseminated, and retained.
Third, the Team recommends a shorter retention period for information about First Amendment activities, unless there’s a legitimate law enforcement purpose for a thirtyday period (e.g., that it would take that period of time to determine whether the information is related to criminal activity).
Fourth, regarding

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inquiry, or matter, or should reasonably have such knowledge.”
Third, the Monitoring Team agreed with the ACLU that the Guidelines regarding the dissemination of social media information should be revised for clarity.

social media may only be disseminated to MPD officers and staff as necessary.”

Fourth, the Monitoring Team agreed that “Command Staff” should be defined.

Fifth, the Monitoring Team recommended that the “Document and Retention” section be revised for clarity. In particular, the sentence beginning, “The search histories of each social media platform searched by an MPD officer shall be retained…” should be clarified; possible alternatives include, “The search histories of an MPD officer on any social media platform shall be retained…”, or “All social media

page 6, the City states, “Any information gathered and retained form social media may only be disseminated to MPD officers and staff as necessary.” This appears to be more permissive than the previous, now-deleted language, saying the information may only be disseminated “to members of the Command staff and only when the information pertains to threats to public safety or is potential evidence in a criminal investigation.” The Monitoring Team would like clarification as to the reason for this change.

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searches by any MPD officer shall be retained…”.
In addition, the Monitoring Team anticipated that the 90-day reporting period is going to become confusing when applied. Right now, the 90-day clock appears to start when any given search happens; it is not clear whether that is what is intended, or if there is supposed to be a regularized reporting period to match the city’s quarterly reporting requirements. One proposal was that searches be reported at or shortly after the time they happen, rather than waiting for three months to report them.
Sixth, the Monitoring Team recommended there be a definition of “special events.”
Seventh, the Monitoring Team proposed adding a disciplinary consequence for knowing failure to

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adhere.
Eighth, the Monitoring Team recommended incorporating a procedure for audits of social media searches.
Ninth, the Monitoring Team recommended that the policy state that an undercover social media account may not impersonate an actual person known to the subject of the investigation.
Tenth and finally, the Monitoring Team recommended that language be added addressing the monitoring of juveniles on social media— in particular, if there are restrictions on monitoring or targeting juveniles as part of other law enforcement practices, policies, or procedures, those should be considered for incorporation into the online sphere.

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5. Social Media Search Terms

Monitoring Team’s Prior Feedback.

Description of the City’s Revised 1/14 Submissions, Provided to the ACLU on 2/11.

First, The Monitoring Team did not agree with the ACLU’s lack of objections to the social media search terms list. In particular, the filing certifies that none of the names searched for were “associated with a protest or other scenario in which First Amendment rights were being exercised.” The Team believes that each search must also have a valid law enforcement purpose, however. The Monitoring Team suggested that current certification is important but not sufficient. Accordingly, the Team recommended that the police department certify that each search term produced in its submissions have a valid law enforcement purpose. If that certification is not possible, the Monitoring Team recommended that the

None

Description of the ACLU’s Response to the City’s Revised Submissions, Provided to the City on 3/14. No objections were made to January 14, 2019, submission.

Does the Monitoring Team Agree or Disagree with the ACLU’s response?
Disagree

Monitoring Team’s Recommendations to the Court.
The Monitoring Team reasserts and incorporates its prior feedback.

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department provide an explanation.
Second, the Monitoring Team also recommended that the department provide an explanation for the use of the word “protest” as a search term in conjunction with the words “St. Jude” and “marathon.”
46900116.v1

s II F L B V

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MEMPHIS POLICE DEPARTMENT
Policy and Procedure

SERIAL:

DATE:

FROM:

TO:

SUBJECT: UTILIZING SOCIAL MEDIA FOR INVESTIGATIONS

PURPOSE: To establish guidelines for the use of social media, via manual social media searches and through the use of social media collators, for all officers assigned to the Office of Homeland Security (“OHS”) and Real Time Crime Center (“RTCC”), as well as any officer with access to social media collators, and in compliance with the Order, Judgment, and Decree entered in Civil Case 76-449 (“Kendrick Consent Decree”), and in accordance with the Memorandum Opinion issued by the United States District Court in Case No. 2:17-cv-02120, Doc. 151.
SCOPE: This policy applies to all MPD officers who utilize social media in the course of their duties, as well as to all MPD personnel with access to social media collators, and to all officers assigned to the Office of Homeland Security (“OHS”) and Real Time Crime Center (“RTCC”)..
GENERAL: Social media is a tool for real time communication and has become an integral part of daily life for citizens of all ages. Its usage can be a valuable tool to aid in investigations and analysis within public safety interest areas. Similarly, in the aftermath of a crime, social media can be used to obtain information to identify suspects, victims and witnesses.
Social media, by definition, is a forum on which the expression of First Amendment rights may be expected to occur. The MPD’s use of social media is governed by the Kendrick Consent Decree.

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EXHIBIT A

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This policy shall outline the restrictions and uses of social media by applicable officers. This policy is intended to address social media in general, and not any one particular form of social media.
DEFINITIONS:
Command Staff - The MPD Command staff includes the Director of Police, Deputy Director, and the six Deputy Chiefs. Criminal Investigation - If probable cause exists that a crime has been committed, a criminal investigation is the process of collecting information or evidence about an incident in order to: (1) determine if a crime has been committed; (2) identify a perpetrator; (3) establish probable cause; (4) apprehend the perpetrator; and (5) provide evidence to support a conviction in court. Criminal Intelligence Information----- Data which meets—criminal intelligence collection criteria and which has been evaluated and determined to be relevant to the identification of criminal activity engaged in by individuals who or organizations which are reasonably suspected of involvement in criminal activity. Criminal Nexus, Criminal Predicate------Established when behavior or
d planned involvement in criminal activity or enterprise. Undercover Account — The utilization of an online alias to search or engage in interactions with a person via social media sites that may or may not be in the public domain (i.e. “friending a person on Facebook”). Political Intelligence - the gathering, indexing, filing, maintenance, storage or dissemination of information, or any other investigative activity, relating to any person’s beliefs, opinions, associations or other exercise of First Amendment rights. Political intelligence includes any investigation into the lawful exercise of First Amendment rights, even if the investigating officer does not have a partisan political motive. Political intelligence is not permissible as a goal of an investigation nor as the means to an end of an otherwise lawful investigation. Public Domain — Any Internet resource that is open and available to anyone, without use of a password, specific invitation, or other identifier. Reasonable Suspicion---- Information exists which establishes sufficient facts to give trained law enforcement officer or MPD employee a basis to
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believe that there is a reasonable possibility that an individual or organization is involved in a definable criminal activity or enterprise. Social Media — A category of Internet-based resources that integrate user­ generated content and user participation. Social Media Collator — A tool used to capture data and monitor social media sites by utilizing automated tools such as web crawlers adword search functions to make predictive analysis, develop trends, or collect information. Social Media Sites — Sites which focus on building online communities of people who share interests and activities and/or exploring the interests and activities of others. Social media websites are further categorized by Internet-based resources that integrate user-generated content and user participation. This includes, but is not limited to, social networking sites (Facebook), micro blogging sites (Twitter), photo-and video-sharingsites (Instagram). The absence of an explicit reference to a specific social media website does not limit the application of this policy. Valid Law Enforcement Purpose — A purpose for information/intelligence gathering development, that furthers the authorized functions and activities of a law enforcement agency, which may include the prevention of crime, ensuring the safety of the public, furthering officer safety, and homeland and national security.
USE OF SOCIAL MEDIA
The collection and use of information through the use of social media shall be conducted in accordance with the Kendrick Consent Decree, and the Memorandum Opinion issued by the United States District Court in Case No. 2:17-cv-02120, Doc. 151, which may be found on the Memphis Police Department Kiosk [show link here], and shall further be conducted without violating constitutionally protected rights, or the requirements of 28 CFR Part 231, or any relevant state or local regulations.
Social media shall not be used by MPD to conduct political intelligence. Political intelligence, as defined by the Kendrick Consent Decree, is the gathering, indexing, filing, maintenance, storage or dissemination of information, or any other investigative activity, relating to any person’s beliefs, opinions, associations or other exercise of First Amendment rights.
1 28 CFR Part 23 is a federal regulation that provides guidance to law enforcement agencies on the implementation standards for operating multijurisdictional criminal intelligence systems funded under the Omnibus Crime Control and Safe Streets Act of 1968, as amended (Crime Control Act)
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Political intelligence includes any investigation into the lawful exercise of First Amendment rights, even if the investigating officer does not have a partisan political motive. Political intelligence is not permissible as a goal of an investigation nor as the means to an end of an otherwise lawful investigation. (See DR 138.)
All searches of social media by a MPD officer, through the use of a social media account or social media collator, shall be based on a valid law enforcement purpose, and not for the purpose of gathering information related to First Amendment rights. Absent authorization to conduct an investigation, for example, impermissible search terms might include a phrase or name of an organization that expresses political beliefs, such as "Black Lives Matter," "Occupy Wall Street" or "Sovereign Citizens." An example of permissible search terms, which in and of themselven indicate unlawful conduct not protected by the First Amendment, would be “shoot the police.” A search term such as “St. Jude Marathon” is permissible because it does not involve the collection of information associated with a person’s exercise of First Amendment rights.
Social Media searches are limited to sources within the public domain that are accessible without use of a password or other identifier. If an MPD officer needs to create an alias or undercover account or seeks to gain access to a “private” social media account, these actions require priov written authorization by the Director of Police Services or his/her designee. (See Policy # XXX.)
Even when a search of social media is carried out in compliance with other provisions of this Policy, there should be no interaction by the MPD officer with any individual’s social media account such as through commenting, "liking," direct messaging, posting, etc. The officer should merely view the content of the social media account for data/information collection.
In the event a MPD officer encounters information on social media pertaining to an imminent threat to public safety or evidence of the planning or commission of a crime, the MPD officer shall immediately notify his/her commanding officer.
Social media searches following a homicide or critical incident or occurrence of a crime should be limited to the social media accounts of
4

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persons who have been identified as suspects, victims, and/or witnesses to a crime. Only searches of open-sources (non-private) should be used.

Only social media content directly relevant to the criminal investigation should be retained and disseminated, and it shall be placed in the case file.

Use of social media while on duty should be conducted for police business purposes only, and only in compliance with this Policy.

DIRECTOR

NATION BY

In the event that a search of social media is part of an investigation into unlawful conduct which may incidentally result in the receipt of information relative to First Amendment rights, such searches require authorization by the Director of Police Services or his/her designee. (See Policy ###, HERE)

DOCUMENTATION AND RETENTION

Other than crime analysis, situational assessment reports, and evidence collected during a criminal investigation, no information obtained from social media websites shall be retained.

The search histories of each social media platform searched by an MPD officer shall be retained for a period of no less than 90 days. At the end of each 90-day period, each MPD officer who conducted a search on social media must submit a list of search terms used to search the particular social media platform related to the officer’s duties and responsibilities as an officer of the MPD. These reports shall be submitted to the officer’s commander.

The officer’s personal use of the social media platform and any searches conducted for personal reasons while not on duty are not subject to this reporting requirement.

Crime analysis and situational assessment reports may be prepared for special events management, including First Amendment-protected activities. At the conclusion of the situation or First Amendment-protected event that was the catalyst for generation of a situational awareness report, and where there was no criminal activity related to the information gathered, the
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information obtained from social media or from a social media monitoring tool will be retained for no more than thirty (30) days.
Information from social media that does indicate a criminal nexus of unlawful conduct that is not protected by the First Amendment may be retained in an intelligence report, suspicious activity report, orcase investigative file.
Information obtained from a social media site in the course of an investigation that is identified as criminal in nature will fe collected and retained using screen shots, printouts of chat logs, copying uniform resource locators (URL’s), and any other reasonable means for preserving the evidence for subpoena or investigatory purposes. This evidence will be stored in the same manner as other evidence of a criminal investigation. When possible, MPD employees will utilize investigative computer systems and software intended to record data from social media sites.
At no time shall MPD Personnel maintain any social media files outside of these authorized files.
DISSEMINATION
Information gathered from social media, including screen shots or “snags” of social media sites, shall not be disseminated except as necessary for preparations for special events management or for the investigation of unlawful activity. Information gathered from social media may not be forwarded or shared beyond those who are authorized by this Policy. Any information gathered and retained from social media may only be disseminated to members of the Command StaffMPD officers and staff as necessary,, and only when the information pertains to threats to public safety or is potential evidence in a criminal investigation.
DISCIPLINE
Any employee who violates this Section will be subject to disciplinary action, up to and including termination.
Cross Reference
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DR 138
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REPORT #:
Authorization for Investigations That May Incidentally Result in Political Intelligence
In accordance with Policy # XXX any officer conducting an investigation into unlawful conduct that may incidentally result in the gathering of political intelligence (see DR 138) or information related to the exercise of First Amendment rights, requires approval by the Director of Police Services or his/her Designee. If approved, the investigation will not exceed more than ninety (90) calendar days. An extension may be granted by the Director/Director's Designee for an additional ninety (90) days if necessary.
REPORT ft:-------------------------------------------------------
| Purpose of Investigation (include all pertinent facts)

Subjects of Investigation (include all Aliases and known Handles)

Method of Investigation: □ Social Media □ Other (explain):_____

□ Undercover Capacity □ Surveillance

Requesting Investigator’s Signature

Date:_________

_______________________________ Investigation Approval Status_____________________________ Based on the foregoing, and all information known to me, I have determined that:-that

1, -tThis investigation does not violate the provisions of the Kendrick Consent Decree: and 2, the expected collection of information about, or interference with. First Amendment rights is
unavoidably necessary for the proper conduct of the investigation: and 3, every reasonable precaution has been employed to minimize the collection of information about, or
interference with. First Amendment rights: and 4, the investigation employs the least intrusive technique necessary to obtain the information.

Thus, this investigation meets the requirements of Section G of the Kendrick Consent Decree, and I hereby approve the investigation. This authorization will expire 90 says from the date of my signature.

Director of Police Services or Designee
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REPORT #:
-Date:

Reason for Extension:

Extension

□ Approved Extension Expires:

____________________________________

Director of Police Services or Designee

Date

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DR 138 POLITICAL INTELLIGENCE (REVISED)
The Memphis Police Department and the City of Memphis shall not engage in political intelligence. “Political Intelligence” means the gathering, indexing, filing, maintenance, storage or dissemination of information, or any other investigative activity, relating to any person’s beliefs, opinions, associations or other exercise of First Amendment rights.
First Amendment rights are rights protected by the First Amendment to the constitution of the United States, including, but notlimited to,the ri ghts to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose.
Political intelligence includes any investigation into the lawful exercise of First Amendment rights, even if the investigating officer does not have a partisan political motive. Political intelligence is not permissible as a goal of an investigation nor as the means to an end of an otherwise lawful investigation.
No member shall intercept, record, transcribe or otherwise interfere with any communications by means of electronic or covert surveillance for the purpose of gathering political intelligence. No member shall engage in any action or disseminate damaging, derogatory, false or anonymous information about any person which will deprive any individual of their First Amendment Rights; nor will any member encourage, cooperate with, or contract with any local, state, federal or private agency to plan or conduct any investigation involving political intelligence.
Investigations into unlawful conduct that may incidentally result in the receipt of information relating to First Amendment rights are permissible, but require approval by the Director of Police Services or his/her designee. Any member conducting or supervising such an investigation must bring the matter to the attention of the Director of Police Services, or his/her designee, for review and written authorization. If approved, the investigation shall not exceed ninety (90) calendar days. An extension may be granted in writing by the Director or his/her designee for period of up to an additional ninety (90) days.
The form to be utilized to request approval to conduct an investigation under the authority provided in this this DR, are in accordance with the Order, Judgment and Decree for Civil Case 76-449 ("Kendrick Consent Decree"), and the Memorandum Opinion issued by the United States District Court in Case No. 2:17-cv-02120, Doc. 151. Copies of both may be found on the Memphis Police Department Kiosk

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[show links here].
Except as may be otherwise provided in this DR, the fundamental principles found in The Code of Federal Regulations, 28 CFR Part 23, contain operating policies providing law enforcement professionals with guidance on the operation of criminal intelligence information systems effectively while safeguarding privacy and civil liberties. In the event of a conflict between the principles and provisions of 28 CFR Part 23 and this DR, as well as the provisions of the Kendrick Consent Decree, the provisions of the Kendrick Consent Decree shall govern.

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TRAINING PLAN
In the Opinion and Order (ECF No. 151), the Court ordered, in part, the following:
The City shall design training for members of OHS, RTCC, and MPD’s Command Staff. The new training shall define “political intelligence.” The new training shall specify that “political intelligence” includes any investigation into the lawful exercise of First Amendment rights, even if the investigating officer or unit does not have a partisan political motive. The new training shall specify that political intelligence is not permissible as a goal of an investigation nor as the means to an end of an otherwise lawful investigation. The new training shall inform officers that investigations into unlawful conduct that may incidentally result in the receipt of information relating to First Amendment rights are permissible, but require approval as set out in Consent Decree § G. No officer may be assigned to RTCC or OHS, or be promoted to the Command Staff without receiving this training. The City shall submit a training plan to the Court no later than January 14, 2019 for review and approval.
Pursuant to the Order, the City submits the following training plan for the Court’s review and approval.
• The City has drafted training materials for members of OHS, RTCC, and MPD’s Command Staff. This draft is attached hereto as Exhibit A. The City will provide a copy of the draft to the Court-appointed Monitor.
• Within 21 days after approval of the training materials by the Court, the City will hold training sessions for all members of OHS, RTCC, and MPD’s Command Staff.
• Training will be done by the City of Memphis City Attorney’s Office or Law Division and/or its designee(s).
o Attendance will be mandatory and tracked to ensure all members receive the training.
o Acknowledgement of receipt of this training shall be signed by members of OHS, RTCC, and MPD’s Command Staff and placed in their personnel files.
• For future members of OHS, RTCC, and/or MPD’s Command Staff, training will be included in the mandatory new hire or transfer orientation requirements.
e» Annual In-Service trainingTraining for members of OHS. RTCC. and MPD's Command Staff will be requiredoffered annually, ander additional training will be offered on an “as needed” basis^ for future members of OHS, RTCC, and/or MPD’s Command Staff
• MPD members who are being considered for promotion to the Command Staff will have their personnel files reviewed for training completion. Those being considered

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for promotion to the Command Staff will be ineligible for promotion until completion of training.

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MEMPHIS POLICE DEPARTMENT POLICY AND PROCEDURE

SERIAL:

DATE:

FROM:

TO:

SUBJECT: Authorization for Investigations Which May Incidentally Result in

the Collection of Information Related to the Exercise of First Amendment Rights

Under Section G of Kendrick Consent Decree

In accordance with the Order, Judgment, and Decree entered in Civil Case 76-449 (“Kendrick Consent Decree”), the Memphis Police Department and the City of Memphis shall not engage in “political intelligence.” Political intelligence includes any investigation into the lawful exercise of First Amendment rights, even if the investigating officer does not have a partisan political motive. First Amendment rights are rights protected by the First Amendment to the constitution of the United States, including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose.
Investigations into unlawful conduct that may incidentally result in the receipt of information relating to First Amendment rights are permissible, but require approval by the Director of Police Services, or his/her Designee, under Section G of the Kendrick Consent Decree (available HERE).
PURPOSE
The purpose of this policy is to outline the procedure for requesting authorization to conduct an investigation into unlawful conduct which may incidentally result in the in the receipt of information relating to First Amendment rights.
PROCEDURE
The requirement to obtain written authorization is applicable to any investigation into unlawful conduct by any officer, which may incidentally result in the collection of information about the exercise of First Amendment rights.
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When this becomes known to the officer, the investigation must be brought to the attention of the Director or his/her Designee.
For purposes of this Policy, the following activities shall not require a written authorization from the Director/designee:
-k—Ongoing, active investigation into the planning or occurrence of a criminal act; Or.—Criminal intelligence development (defined as information relevant to the identification of
criminal activity engaged in by individuals or organizations which are reasonably suspected of involvement in criminal activity) 4—Investigating or monitoring organized gangs reasonably suspected of involving criminal activity; 4—Investigating or monitoring sex crimes, including pedophilia; 4—Investigating or monitoring hate crimes;
-------- Crime analysis and reporting. When requesting written authorization, the officer shall provide the factual basis for the investigation and the investigative techniques to be employed. The written authorization shall be substantially in the form set forth in Exhibit One to this Policy, although additional information relevant to the authorization may be included. The Director/Director’s Designee may authorize the investigation upon making the following findings:
a. The investigation does not violate the provisions of the Kendrick Consent Decree; b. The expected collection of information about related to First Amendment activity is
unavoidably necessary for the proper conduct of the investigation; c. Every reasonable precaution has been employed to minimize the collection of
information related to First Amendment activity; and d. The investigation employs the least intrusive technique necessary to obtain the
information. If approved, the investigation will not exceed more than ninety (90) calendar days. An extension may be granted by the Director for an additional ninety (90) days, if necessary.
DOCUMENTATION AND RETENTION
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Other than crime analysis1 2and situational assessment reports1, all information found during an authorized investigation and obtained from social mediawebsites shall beplaced within a case file, suspicious activity report, or intelligence report. At no time should MPD Personnel maintain any social media files outside of these authorized files.
At the expiration of the 90 day authorization, or the dxeiration of the extension (if any), all information collected during the authorized investigation will be destroyed, unless the information is identified as evidence of a crime and/or is associated with an open criminal investigation.
Information identified as evidence of a crime that is obtained in the course of an investigation authorized under this policy from a social media site will be collected and retained using screen shots, printouts of chat logs, copying uniform resource locators (URL’s) for subpoena or investigatory purposes, or storing the information via secure digital means. When possible, employees will utilize investigative computer systems and software intended to record data from social media sites. This information will be stored in conjunction with a case file number.
DISSEMINATION
Information collected related to the exercise of First Amendment rights as a result of the authorized investigation may be disseminated only to the Director or his/her Designees who have been authorized to grant the investigation, unless the information will be used as evidence in a criminal indictment or proceeding, at which time the informationmayba disseminated te law enforcement consistent with MPD policy.
EXAMPLES
Examples of unlawful conduct, the investigation of which might incidentally result in the collection of information about the exercise of First Amendment rights, include the following:
• A planned flash mob at a shopping mall intended to shut down the mall. An investigation into such a flash mob would necessarily involve the collection of information about persons' First Amendment rights of gathering and associating with one another. As such, the investigation into this unlawful conduct would require authorization pursuant to this Policy.
• A threat by a person to bring a gun into City Council chambers in order to disrupt the Council meeintg. An investigation into this threat might incidentally include the collection of information about the political opinions and motives of the person making the threat, and would require authorization pursuant to this Policy.
EXCLUSIONS
1 "Crime Analysis" is defined in the "Exclusions" Section below. 2 "Situational Assessment Report" is defined as an after-action report of an incident describing the incident. MPD's reaction to the incident, and an analysis of the successes and failures of MPD's reaction to the incident.
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For purposes of this Policy, the following activities shall not require a prior written authorization from the Director/designee:
1. Initial, on the scene active investigation into the planning or occurrence of a criminal act (e.g. a homicide scene and its immediate aftermath, where the responding officer searches Facebook for the name of the victim and/or the name(s) of any suspect(s));
2. Criminal intelligence development (defined as information relevant to the identification of criminal activity engaged in by individuals or organizations which are reasonably suspected of involvement in criminal activity) (e.g. the ongoing gathering of intelligence into a drug trafficking ring);.
3. Investigating or monitoring organized gangs reasonably suspected of involving criminal activity (e.g. the ongoing gathering of intelligence into known gangs);
4. The ongoing gathering, investigating, and monitoring of suspected and potential sex crimes, including human trafficking, child pornography, and pedophilia;
5. Crime analysis and reporting. Crime analysis is the systematic study of crime and disorder problems as well as other police-related issues—including sociodemographic, spatial, and temporal factors—to assist the police in criminal apprehension, crime and disorder reduction, crime prevention, and evaluation. Crime analysis is not haphazard or anecdotal; rather, it involves the application of social science data collection procedures, analytical methods, and statistical techniques. More specifically, crime analysis employs both qualitative and quantitative data and methods. Crime analysts use qualitative data and methods when they examine non-numerical data for the purpose of discovering underlying meanings and patterns of relationships. The qualitative methods specific to crime analysis include field research (such as observing characteristics of locations) and content analysis (such as examining police report narratives). Crime analysts use quantitative data and methods when they conduct statistical analysis of numerical or categorical data. Although much of the work in crime analysis is quantitative, crime analysts use simple statistical methods, such as frequencies, percentages, means, and rates. Typical crime analysis tools include link analysis and crime mapping software.
The central focus of crime analysis is the study of crime (e.g., rape, robbery, and burglary); disorder problems (e.g., noise complaints, burglar alarms, and suspicious activity); and information related to the nature of incidents, offenders, and victims or targets of crime (targets refer to inanimate objects, such as buildings or property). Crime analysts also study other police-related operational issues, such as staffing needs and areas of police service. Even though this discipline is called "crime analysis," it actually includes much more than just the examination of crime incidents. Crime analysis is also used to address any deficiencies in training and to update policies and procedures.
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Cross References: DR 138 Kendrick Consent Decree
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MEMPHIS POLICE DEPARTMENT POLICY AND PROCEDURE
DATE: TO: SUBJECT: Guidelines for Delegation of Authority of Director of Police
Services to Authorize Investigations Which May Interfere with the Exercise of First Amendment Rights Under Section G of Kendrick Consent Decree
In accordance with the Order, Judgment and Decree entered in Civil Case 76-449 (“Kendrick Consent Decree”), the Memphis Police Department and the City of Memphis shall not engage in “political intelligence.” Political intelligence includes any investigation into the lawful exercise of First Amendment rights, even if the investigating officer does not have a partisan political motive.
Investigations into unlawful conduct that may incidentally result in the receipt of information relating to First Amendment rights are permissible, but require approval by the Director of Police Services under Section G of the Kendrick Consent Decree.
The Director of Police Services may delegate his/her authority to authorize such authorizations as follows:
Selection of Designees by Director
The Director of Police Services may identify up to 3 designees, who shall each be at the Command staff (persons who hold rank of Major or higher) level of the MPD, who are entitled to issue the written authorization to investigate per Section G. The Director shall identify each designee in an interdepartmental communication distributed to the Command Staff, all specialized unit supervisors, and the Commander of each precinct. If a designee is replaced or if an additional designee or designees is named within the parameters of this policy, that individuals] shall similarly be identified in an interdepartmental communication as set forth in the preceding sentence.
The designee issuing such written direction shall not be in the direct chain of command of the unit or officer requesting authorization. If each designee falls within the applicable chain of command set forth in this policy, the Director must personally authorize the written investigation.

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Designees Report to Director
Each designee shall report directly to the Director on the last Friday of every month. The Designee's report to the Director shall include a description of every investigation authorized by the Designee that may incidentally result in the receipt of information relating to First Amendment rights. The Designee's report shall include the date of the request for authorization, the name of the requesting officer, a description of the investigation, and the expected duration of the investigation. The Director shall have the authority to rescind authorization for any investigation that the Director deems to constitute political intelligence.
Cross References:
DR 138 Policy # XXX: Authorization for Investigations Which May Interfere with the Exercise of First Amendment Rights Under Section G of Kendrick Consent Decree

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INTRODUCTORY TRAINING FOR MPD
OFFICERS

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THE KENDRICK CONSENT DECREE
• In 1978, the City of Memphis entered into an agreement with the ACLU-TN known as the Kendrick Consent Decree.
• The City agreed to refrain from specifically defined activities related to “political intelligence.”
• The Consent Decree is located on the MPD Kiosk.

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WHAT IS “POLITICAL INTELLIGENCE”?
• “Political intelligence,” is defined in the Kendrick Consent Decree as the gathering, indexing, filing, maintenance, storage, or dissemination of information, or any other investigative activity, relating to any person’s beliefs, opinions, associations or other exercise of First Amendment Rights.
• First Amendment rights are rights protected by the First Amendment to the constitution of the United States, including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose.
• The United States District Court recently confirmed that the definition of “political intelligence” in the Kendrick Consent Decree includes any investigation into the lawful exercise of First Amendment rights, even if the investigating officer or unit does not have a partisan motive. Political intelligence is not permissible as a goal of an investigation nor as the means to an end of an otherwise lawful investigation.

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REVISED DR138
• DR 138 has been revised, pursuant to the Court’s order, and can be found on the Kiosk.
DR IJK POLITIC AL INTELLIGENCE (REV ISED)
The Memphis IV4ice I lepartment anil the City nt Memphis shall not engage m political mtclligencc- "Political Intelligence' means the gathering indexing, riling maintenance, storage or dissemination of information, or any other investigative activity, relating to am person's beliefs, opinions, associations or other exercise of First Amendment lights. Political intelligence includes any investigation into the lawful exercise of First Amendnient lights, even if the investigating, officer does nut base u |\jiiisui |H>lilicul motiv e Political intelligence is not permissible as a goal of an investigation nor as the means to an end of oat otherwise lawful investigation.
No memhet shall intercept, reeunl. transenlw or otherwise interfere with any communications hv means of electronic or covert surveillance for the purooac ot galhcnng political inlelhgenee No member shall engage in am action or disseminate damaging, derogatory, false or anonymous information about any person wliich will depme any indiv idual of their First Amendment Rights, nor will any member encoiuuge. cooperate with, or contract with any local, state, federal or private agency to plan 01 conduct any investigation involving political intelligence.
Imestigotions into unlawful conduct tint may incidentally result m the receipt of information relating to First Amendment nghts arc permissible, but require approval by the Director of Police Serv ices or his/ha designee. Any member conJucling or supervising such an investigation must bring the matter to the attention of the Director of IVilice Services or his/her designee, fur review and vvnttcn authorrratxm If approved, the investigation shall not exceed ninety (90) calendar days An extension may be granted in writing bv the Director or his/her designee for period of up to an additional ninety (90) days.
'Ihe torai to he uhli/cd hi request appioval to conduct un investigation under the aiithontv pros kUxI m this this DR, are in accordance with the < Inter, Judgment and Decree for Civil Case 76-449 fKfiufnck Consent Decree* I. and the Memorandum Opinion issued by the United States District Court in Case No. 2:l7-cv-02l20. Doc. 151 Copies of both may be found on the Memphis Police Department kiosk (show links here|.
Except os may be otlierwise provided m this I)R, the fundamental principles found in The Code of Federal Regulations. 28 CFR Pari 23. contain operating policies providing law enforcement professionals with guidance on the operation of ciiminal uitelligcnce inlbimation systems effectively while safeguarding pnvacy

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THE PURPOSE OF POLITICAL INTELLIGENCE
• The Kendrick Consent Decree prohibits MPD from electronic surveillance as a means of political intelligence.
• “No officer shall intercept, record, transcribe or otherwise interfere with any communications by means of electronic or covert surveillance for the purpose of gathering political intelligence.”
• This prohibition includes the use of social media for the purpose of political intelligence.

Case 2:17-cv-02120-JPM-jay Document 197-2 Filed 04/05/19 Page 46 of 59 PageID 6910
NO COVERT SURVEILLANCE FOR THE PURPOSE OF POLITICAL INTELLIGENCE
• MPD shall not recruit, solicit, place, maintain, or employ an informant for political intelligence; nor shall any officer, employee, or agent of the City of Memphis, for the purpose of political intelligence, infiltrate or pose as a member of any group or organization exercising First Amendment Rights.

Case 2:17-cv-02120-JPM-jay Document 197-2 Filed 04/05/19 Page 47 of 59 PageID 6911
HARASSMENT AND INTIMIDATION PROHIBITED
• MPD shall not “disrupt, discredit, interfere with or otherwise harass any person exercising First Amendment rights.”
• This includes a prohibition against dissemination of damaging, derogatory, false, or anonymous information about any person for the purpose of political intelligence, or an attempt to provoke disagreement, dissention, or violence between persons.
• MPD shall not engage in any action for the purpose of, or reasonably having the effect of, deterring any person from exercising First Amendment rights.
• EXAMPLE: MPD shall not record the name of or photograph any person in attendance, or record the license plate number of any person in attendance, of any lawful meeting or demonstration for the purpose of chilling the exercise of First Amendment rights or for the purpose of maintaining a record of that gathering.

INVESTIGATIONS THAT MIGHT Case 2:17-cv-02120-JPM-jay Document 197-2 Filed 04/05/19 Page 48 of 59 PageID 6912
INCIDENTALLY RESULT IN POLITICAL INTELLIGENCE
• For any investigation into unlawful conduct that may incidentally result in political intelligence, prior authorization is REQUIRED.
• These investigations are permissible, but require approval by the Director of Police Services or his/her designee.
• If the investigation is authorized by the Director/Director’s Designee, the investigation will not exceed more than ninety (90) calendar days.
• An extension may be requested by the investigating office, and granted by the Director/Director Designee for an additional ninety (90) days if necessary.
• The Authorization Form for any such investigation can be found on the Kiosk.

WHEN WILL AN INVESTIGATION THAT Case 2:17-cv-02120-JPM-jay Document 197-2 Filed 04/05/19 Page 49 of 59 PageID 6913
INVOLVES POLITICAL INTELLIGENCE BE AUTHORIZED?
• After a review of the factual basis for the investigation as well as the investigative techniques to be employed, the Director or his/her designee may authorize the investigation upon making the following findings:
• The investigation does not violate the provisions of the Kendrick Consent Decree;
• The expected collection of information related to the exercise of First Amendment rights is unavoidably necessary for the proper conduct of the investigation;
• Every reasonable precaution has been employed to minimize the collection of information about, or interference with, First Amendment rights; and
• The investigation employs the least intrusive technique necessary to obtain the information.

Case 2:17-cv-02120-JPM-jay Document 197-2 Filed 04/05/19 Page 50 of 59 PageID
DOCUMENTATION AND6914RETENTION OF
“POLITICAL INTELLIGENCE ” GATHERED IN
AN INVESTIGATION
• Other than crime analysis and situational assessment reports, all information found during an authorized investigation of unlawful conduct and obtained from social media websites shall be placed within a case file, suspicious activity report, or intelligence report.
• At no time should MPD Personnel maintain any social media files outside of these authorized files.
• At the expiration of the 90 day authorization, or the expiration of the extension (if any), all information collected during the authorized investigation will be destroyed, unless the information is identified as evidence of a crime and/or is associated with an open criminal investigation.
• Information identified as evidence of a crime that is obtained in the course of an investigation authorized under this policy from a social media site will be collected and retained using screen shots, printouts of chat logs, copying uniform resource locators (URL’s) for subpoena or investigatory purposes, or storing the information via secure digital means. When possible, employees will utilize investigative computer systems and software intended to record data from social media sites. This information will be stored in conjunction with a case file number.

DISSEMINATION OF POLITICAL Case 2:17-cv-02120-JPM-jay Document 197-2 Filed 04/05/19 Page 51 of 59 PageID 6915
INTELLIGENCE GATHERED IN AN AUTHORIZED INVESTIGATION
• Information collected related to the exercise of First Amendment rights as a result of the authorized investigation may be disseminated only to the Director or his/her Designees who have been authorized to grant the investigation, unless the information will be used as evidence in a criminal investigation or proceeding, at which time the information may be disseminated to law enforcement representatives consistent with MPD policy.

Case 2:17-cv-02120-JPM-jay Document 197-2 Filed 04/05/19 Page 52 of 59 PageID 6916
EXAMPLES OF IMPERMISSIBLE POLITICAL INTELLIGENCE
Each of these represents an affirmative investigative act focusing on First Amendment rights in violation of the Consent Decree.
• An MPD officer searches a social media collator for all instances of the term “Black Lives Matter,” because the information relates to First Amendment Rights.
• An MPD officer gathers and circulates social media posts about potential boycotts. Boycotts are within the protection of the First Amendment.
• An MPD officer gathers information about journalists based on their associations with Black Lives Matter.
• An MPD officer indexes information relating to the leadership of lawful protests.
• An MPD commander orders social media monitoring of a “Black Lives Matter Rally” and a “Community Organizers Cookout.”

Case 2:17-cv-02120-JPM-jay Document 197-2 Filed 04/05/19 Page 53 of 59 PageID 6917
OTHER EXAMPLES OF PROHIBITED CONDUCT
Operating a department for the purpose of monitoring protest activity or political groups.
The use of undercover social media accounts to monitor protest activity or political groups.
The creation and dissemination of bulletins, PowerPoints, etc. that identify persons associated with political groups or protests.
Recording the identities of protest attendees and maintaining a record of that information.

EXAMPLES OF CONDUCT THAT DOES Case 2:17-cv-02120-JPM-jay Document 197-2 Filed 04/05/19 Page 54 of 59 PageID 6918 NOT CONSTITUTE POLITICAL
INTELLIGENCE
The Director of Police does not conduct political intelligence by collecting the phone numbers of local activists for future dialogues, if those numbers are openly asked for and freely given.
Real Time Crime Center’s monitoring of stationery and mobile cameras is not political intelligence.
An MPD officer’s act of simply receiving or inadvertently finding information related to First Amendment activities is not political intelligence because it does not involve an affirmative action by the officer to gather the information.
An MPD officer does not have to cover his body camera every time he passes someone with a political t-shirt, because the information received by the camera about political activities was not affirmatively sought out by the officer.
Similarly, an MPD officer who queries a social media collator for the phrase “kill police,” is not going out of her way to “gather” information related to First Amendment rights, even though her action is definitely investigative in nature. If her search returns information related to a lawful assembly titled “Do Not Kill Police,” her action does not become political intelligence because First Amendment rights were not the focus or subject of her investigative activity.

Case 2:17-cv-02120-JPM-jay Document 197-2 Filed 04/05/19 Page 55 of 59 PageID 6919
MORE TRAINING TO FOLLOW
• The City of Memphis and MPD are working with the Court-appointed Monitor to develop more training on the Kendrick Consent Decree and its provisions.
• Every new and existing officer of MPD will receive training on the Kendrick Consent Decree and its prohibition against political intelligence.

Case 2:17-cv-02120-JPM-jay Document 197-2 Filed 04/05/19 Page 56 of 59 PageID 6920
QUESTIONS?
• Please contact your commanding officer with any questions about the Kendrick Consent Decree, political intelligence, or the use of social media in investigations.

Case 2:17-cv-02120-JPM-jay Document 197-2 Filed 04/05/19 Page 57 of 59 PageID

Archived: Monday, March 25, 2019 4:50:30 PM

6921

From: Silk, Jennie

Sent: Monday, March 18, 2019 5:13:03 PM

To: Will Perry

Cc: Glover, R. Mark; Tullis, Mary Wu

Subject: City of Memphis - ACLU-TN's comments on City's Submissions to the Court

Sensitivity: Normal

Attachments:

4826-2706-3175 v.1 Item #2 Training Plan - Redlined with ACLU-TN's Suggestions.docx;4811-1423-6039 v.2 Item #4 Social Media policy - Redlined with

ACLU-TN's Suggestions.docx ;4836-0637-1207 v.3 Item #3 Policy re authorization to conduct investigation under Section G - Redlined with ACLU-TN's

Suggestions.docx ;4811-4195-6743 v.1 Item #3 Kendrick Authorization Form - Redlined with ACLU-TN's Suggestions.docx;4825-9154-2151 v.1 Item #1

Revised DR 138 - Redlined with ACLU's Suggestions.docx ;4847-2552-6151 v.1 Introductory Kendrick Consent Decree Training - Redlined with ACLU-TN's

Suggestions.pptx ;4846-7270-5415 v.1 Guidelines for Delegation of Authority Under Section G - REDLINED with ACLU-TN's SUGGESTIONS.docx ;[151]

Court's Order Finding City in Contempt.pdf ;[185] City's Submission in Response to the Court's Order.pdf ;[186] Plaintiff's Response in Opposition to Policies

Proposed by Defendant City of Memphis.pdf ;

Hi Will,
As we discussed on the conference call on Friday, here are the ACLU-TN's comments on the redlined documents the City submitted to the Court. Please
circulate these to your team.
As you know, the Court required the City to submit several documents for the Court's review pursuant to the Order Finding the City in Contempt (ECF No. 151, pp. 33-35, attached). We submitted those documents on January 14, 2019 (ECF No. 185, attached). The ACLU-TN was allowed to object and comment on the City's submissions (ECF No. 186, attached).
In response, we redlined our submissions to incorporate many of the ACLU-TN's comments and suggestions. Those documents are also attached. We forwarded those redlined documents to the ACLU-TN for their review on February 11, 2019.
Last week, the ACLU-TN got back to us with their comments on those redlined documents. See email from ACLU-TN below. We are working on incorporating as many of their changes as we can in advance of the Court-ordered deadline of April 1, 2019.
Please let us know if you have any questions.
Thanks,
Jennie Vee Silk
Associate Baker, Donelson, Bearman, C aldwell & Berkowitz, PC 2000 First Tennessee Building 165 Madison Avenue Memphis, TN 38103 Phone 901.577.8212 Fax 901.577.0812 JSilk@bakerdonelson.com Bak e r, Done lson, Be arm an, C aldwe ll & Be rk owitz, PC re pre se nts clie nts across the U.S. and abroad from office s in Alabam a, Florida, Ge orgia, Louisiana, Maryland, Mississippi, South C arolina, Te nne sse e , Te x as, Virginia and W ashington, D.C .
From: Tom Castelli [mailto:tcastelli@aclu-tn.org] Sent: Thursday, March 14, 2019 1:41 PM To: Silk, Jennie; Glover, R. Mark; Tullis, Mary Wu; Wellford, Buckner Cc: Mandy Floyd Subject: RE: Emails from Mark
Below are our comments on your revisions. The majority of our objections have been resolved by your revisions. We appreciate your work in addressing them in a thoughtful manner. We are more than happy to discuss the few remaining issues that we have.
Tom
1. DR 138 Political Intelligence The definition included, and hyperlink satisfies our objections.
EXHIBIT B

Case 2:17-cv-02120-JPM-jay Document 197-2 Filed 04/05/19 Page 58 of 59 PageID

2. Training Plan

6922

The revisions address our concerns.

3. Training PowerPoint

One suggested revision to slide 14

Real Time Crime Center’s monitoring of stationery and mobile cameras is not political intelligence.

This may not necessarily be true as some of the stationary cameras and the mobile units could be positioned in such a way that they

are intended to capture political intelligence. The monitoring of the cameras without some improper purpose would not violate the

decree. Perhaps this example could be clarified.

4. Guidelines for Delegation of Authority of Director

The revisions satisfy our objection. In particular, we appreciate the specific timeframe for reporting and the ability of the Director to

rescind the authorization.

5. Authorization for Investigations Policy

We still have some concerns about the absolute nature of the exclusions. All in all, the revised exclusions are clearer and give

examples where authorization would not be needed. However, there may be times when an investigation starts out in one of these

excluded categories and evolves into something that does implicate First Amendment rights. Perhaps the City could add a warning

or caveat that officers involved in any investigation should remain vigilant for any changes that would trigger the need for

authorization.

6. Form: Authorization for Investigations

While the addition of the individual findings required for authorization is a positive step, this does not quite meet our objection. The

Decree requires that the Director find that the collection of information or interference with First Amendment activity is

unavoidable, that that every reasonable precaution has been employed and that the least intrusive techniques are used. Nothing in

the form provides for findings related to what precautions are to be employed during the investigation or which techniques are to be

used to ensure they are the least intrusive. We would suggest adding a separate section for this information. Perhaps these

precautions and techniques could be recommended by the applying officer and signed off by the authorizing officer. A space for the

authorizing officer to make a conditional authorization would also be advisable – i.e. “I authorize the investigation if the following

precautions and techniques are used.”

If the list of findings remains in the form, we recommend that the authorizing officer be required to initial each finding. This

will reinforce requirements of the Decree with the authorizing officer at the time of authorization.

7. Written Guidelines for the Use of Manual Social Media Searches and of Social Media Collators

The revisions have satisfied our objections.

Thomas H. Castelli Legal Director ACLU Foundation of Tennessee P.O. Box 120160 Nashville, Tennessee 37212 615-320-7142 615-645-5062 (Direct line) www.aclu-tn.org

Case 2:17-cv-02120-JPM-jay Document 197-2 Filed 04/05/19 Page 59 of 59 PageID 6923
This email was sent by an attorney or his agent, is intended only for the addressee's use, and may contain confidential and privileged information. If you are not the intended recipient, you are hereby notified that any retention, dissemination, reproduction or use of the information contained in this email is strictly prohibited. If you have received this email in error, please delete it and immediately notify the sender by reply email. Nothing in this email should be construed as a commitment by the sender or ACLU-TN to represent the addressee in any matter. Thank you for your cooperation.
From: Silk, Jennie <jsilk@bakerdonelson.com> Sent: Friday, March 8, 2019 1:13 PM To: Mandy Floyd <mfloyd@aclu-tn.org>; Tom Castelli <tcastelli@aclu-tn.org> Cc: Glover, R. Mark <mglover@bakerdonelson.com>; Tullis, Mary Wu <mtullis@bakerdonelson.com> Subject: Emails from Mark
Hi Mandy and Tom,
Attached is an email from Mark Glover sent to you guys on Monday. We haven't heard back from you guys on the redlined documents, and it unusual for us not to get a response from you. We are just worried that you may not be receiving Mark's emails for some reason.
Please let us know when you get a chance. We are hopeful that we can work together to narrow down some of the issues before the Court.
Thanks!
Jennie Vee Silk
Associate Baker, Donelson, Bearman, C aldwell & Berkowitz, PC 2000 First Tennessee Building 165 Madison Avenue Memphis, TN 38103 Phone 901.577.8212 Fax 901.577.0812 JSilk@bakerdonelson.com Bak e r, Done lson, Be arm an, C aldwe ll & Be rk owitz, PC re pre se nts clie nts across the U.S. and abroad from office s in Alabam a, Florida, Ge orgia, Louisiana, Maryland, Mississippi, South C arolina, Te nne sse e , Te x as, Virginia and W ashington, D.C .
NOTICE: This electronic mail transmission with any attachments may constitute an attorney-client communication, protected health information (PHI) or other confidential information that is in fact confidential, legally protected from disclosure and/or protected by the attorney-client privilege. If you are the intended recipient, please maintain confidentiality and be aware that forwarding this e-mail to others may result in a waiver of these protections and privileges and regardless electronic communications may be at times illegally accessed and viewed. If you are not the intended recipient, this e-mail is not intended for transmission to you, nor to be read, reviewed, used, distributed or even received by you or any other unauthorized persons. If you have received this electronic mail transmission in error, please double delete it from your system immediately without copying, reading or disseminating it, and notify the sender by reply e-mail, so that our address record can be corrected. Thank you very much.

 
 Case 2:17-cv-02120-JPM-jay Document 205 Filed 05/02/19 Page 1 of 20 PageID 7060

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ACLU OF TENNESSEE, INC.,
Intervening Plaintiff, v. CITY OF MEMPHIS, TENNESSEE
Defendant.

)

)

)

)

)

No. 2:17-cv-2120-JPM-jay

)

)

)

)

)

APRIL 2019 QUARTERLY REPORT OF THE INDEPENDENT MONITOR

I. Introduction. In the December 19, 2018, submission by Edward L. Stanton III to serve as the Independent Monitor in this matter (Submission), Mr. Stanton “propose[d] both quarterly and annual reports to the Court.” (ECF No. 180-1, PageID 6561.) Regular reporting, as Mr. Stanton explained, is a consistent feature of “successful monitorships in other major urban areas like Baltimore.” (Ibid.) Significant differences exist between this Monitorship and those in other areas. For one, violations of a federal consent decree—specifically, the 1978 Kendrick Consent Decree (see ECF No. 3, Case No. 2:76-cv-00449)—are at issue rather than violations of any federal constitutional guarantee.1 Although the Kendrick Consent Decree “relate[s] to any person’s beliefs, opinions, associations, or other exercise of First Amendment rights” (id. § B(4)), it confers on Memphis

1

Whether, and, if so, to what extent, independent constitutional violations resulted from

the conduct found by the Court to violate the Kendrick Consent Decree is beyond the scope of

this Report and the Monitor’s mandate.

Case 2:17-cv-02120-JPM-jay Document 205 Filed 05/02/19 Page 2 of 20 PageID 7061
residents, as this Court has recognized, “privacy rights above and beyond those guaranteed by the Constitution” (ECF No. 151, PageID 6276). For another, in its Order finding that Defendant City of Memphis, Tennessee, has violated the Kendrick Consent Decree, the Court explained that the violations appeared to have been inadvertent, “stem[ming] from a shared misunderstanding of the Decree’s requirements.” (ECF No. 151, PageID 6272.) Testimony offered by the Monitoring Team at this Court’s first hearing on the progress of the Monitorship (see ECF Nos. 189, 195), held on April 23, 2019 (April 23 Hearing), supports the initial assessment that the Memphis Police Department (MPD) “appears to lack the structural problems that have slowed compliance with consent decrees in other police departments elsewhere in the country.” (ECF No. 203, PageID 7038.)
Despite these differences, this Quarterly Report, like the Interim Report that preceded it (ECF No.197) and later reports that will follow, tracks the City’s efforts to remedy the violations identified in the Court’s Orders (see ECF Nos. 120, 151 / 152) and details the Monitoring Team’s assessment of those efforts. The City has worked extensively with this Team and with Intervening Plaintiff ACLU of Tennessee, Inc., to propose modifications to existing policies and practices and to create new ones as necessary to meet the Court’s requirements. (See generally ECF Nos. 151 / 152.) This Report notes those areas where there is now agreement between the City and the ACLU, as well as those areas in which this Team recommends that more work be done.
Nothing in this Report is intended to suggest that the City or members of the MPD “in any way lack integrity or dedication to duty.” (ECF No. 151, PageID 6267.) Rather, the Team has found, as this Court anticipated, that all of the City and MPD personnel with whom they have worked in this matter have “exemplified the character and commitment needed in law
2

Case 2:17-cv-02120-JPM-jay Document 205 Filed 05/02/19 Page 3 of 20 PageID 7062
enforcement professionals.” (Ibid.) The recommendations included in this Report thus strictly adhere to the Monitor’s mandate “to supervise the implementation of the sanctions” that this Court has imposed on the City and seek only to aid the Court in “ensur[ing] [the City’s] compliance with the Decree . . . and provid[ing] closer guidance [to the City] on what constitutes political intelligence.” (ECF No. 152, PageID 6290.)
II. Executive Summary. This Report begins with a brief description of the Monitoring Team’s members, some, but not all, of whom were identified in Mr. Stanton’s Submission. (See ECF No. 180-1, PageID PageID 6555-59.) It then discusses the Team’s activities over the past four months—from December 21, 2018, when Mr. Stanton was appointed (see ECF No. 176), to April 23, 2019, when Mr. Stanton and the other members of the Monitoring Team testified at the April 23 Hearing (see ECF No. 203). The Report next briefly summarizes the Team’s findings to date. Finally, the Report concludes with an appendix of the documents that it references.
III. The Monitoring Team. Mr. Stanton’s Submission identified roles for three categories of members on the Monitoring Team: (1) a monitor and deputy monitor; (2) four subject-matter experts (SMEs); and (3) legal and paralegal support. (ECF No. 180-1, PageID 6555-59.) Detailed descriptions and curricula vitae are available at Exhibits A-E to Mr. Stanton’s Submission (id. at PageID 6564-97) and will be available on the Monitoring Team Website, discussed in § IV(F), below, once it goes live. Brief descriptions of each Team member follow here:
A. Monitor & Deputy Monitor. Monitor. Mr. Stanton is a Memphis native who brings vast civil, criminal, and investigative experience to the Monitorship. He is a Partner and Practice Group Leader for Commercial Litigation with Butler Snow LLP in Memphis, where his practice focuses primarily on complex litigation, government and internal investigations, civil rights,
3

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fraud, and audits. From August 2010 to March 2017, Mr. Stanton was the U.S. Attorney for the Western District of Tennessee. In that role, he formed and launched a dedicated Civil Rights Unit; worked closely with a coalition of law enforcement officials to form a Multi-Agency Gang Unit; and supervised the prosecutions of hundreds of violent, white collar, and other high-profile criminal and civil matters. Mr. Stanton’s prior experience includes nearly a decade as Senior Counsel for a Fortune 100 company, private practice with two of the City’s most prominent law firms, and public service as an Assistant City Attorney. Mr. Stanton earned both a bachelor’s degree and a law degree from the University of Memphis.
Deputy Monitor. Jim Letten joined Butler Snow’s New Orleans office as a Partner in 2015, after having served some 36 years as a federal prosecutor. As U.S. Attorney for the Eastern District of Louisiana, Mr. Letten was the longest-serving U.S. Attorney in the nation and one of only three appointed by successive Presidents of different political parties. He has litigated hundreds of jury and bench trials in both state and federal courts. Mr. Letten oversaw, from inception through negotiation, settlement, and implementation, the Department of Justice (DOJ) consent decree that concerned oversight of the New Orleans Police Department (NOPD). He is a 14-year faculty member of the NOPD Training Academy and a former Assistant Dean of Tulane School of Law. He also is a retired Commander in the U.S. Naval Reserve, where he served as an NCIS Agent and Foreign Counter-Intelligence Officer. Mr. Letten earned a bachelor’s degree from University of New Orleans and a law degree from Tulane University.
B. SMEs.
Law Enforcement and Police Practices. Theron L. Bowman, Ph.D., is President and CEO of The Bowman Group, a consultancy of researchers, technicians, and professionals with expertise in police accountability and reform and community policing. He is the former Deputy City Manager, Director of Public Safety, and Chief of Police of Arlington, Texas, and serves as a Director for the National Commission on Crime and Delinquency. Dr. Bowman is the court-appointed Deputy Monitor for a consent decree in Baltimore, Maryland, and a law enforcement expert on the monitorship team for New Orleans. He has led and coordinated regional public safety efforts for the NFL Super Bowl, the MLB World Series, and the NBA All-Star Game. Dr. Bowman holds a bachelor’s degree in biology, a master’s degree in public administration, and a doctorate in urban and public administration from the University of Texas at Arlington.
Public Policy and Social Media. Rachel Levinson-Waldman serves as Senior Counsel to the Liberty and National Security Program at the Brennan Center for Justice at New York University Law School. In addition to publishing reports and law review articles on issues related to the Fourth Amendment, privacy, surveillance, and national
4

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security, she is a regular commentator for television, radio, and print media, and has been published in a wide array of popular media, including The Washington Post, The Atlantic, and U.S. News & World Report. Ms. Levinson-Waldman formerly served as counsel to the American Association of University Professors and as a Trial Attorney in the DOJ Civil Rights Division. She holds a bachelor’s degree from Williams College and a law degree from the University of Chicago. She also is a former judicial law clerk for the Honorable M. Margaret McKeown of the U.S. Court of Appeals for the Ninth Circuit.

Constitutional Law & the First Amendment.

John C. Henegan is a Partner with

Butler Snow in Jackson, Mississippi, who represents broadcast, print, and entertainment

media groups. He is a Fellow of the American Academy of Appellate Lawyers, the

American Bar Foundation, and the Mississippi Bar Foundation, and has been listed in the

First Amendment section of every edition of The Best Lawyers in America since 1988.

Mr. Henegan has authored or co-authored articles for the Fifth Circuit Reporter, the

Mississippi Press Association’s The Fourth Estate, and the Media Law Resource Center’s

annual 50-State Surveys of the Law of Defamation and Privacy. He earned a bachelor’s

degree and a law degree (with honors) from the University of Mississippi, where he was

Editor-in-Chief of the Mississippi Law Journal. He also is a former judicial law clerk for

the Honorable Charles Clark of the U.S. Court of Appeals for the Fifth Circuit.

Compliance and Auditing.

David N. McGriff, Sr., is the former Deputy

Commissioner and Chief of Staff of the Tennessee Department of Safety and Homeland

Security. In those roles, he was responsible for managing the Highway Safety Office and

the Office of Homeland Security and supervised the administrative functions of the

Department’s Internal Audit, Budget, Fiscal Affairs, Driver Services, and Talent

Management Divisions. Mr. McGriff had a 44-year career in law enforcement, serving as

an officer in the Washington, D.C., and Memphis Police Departments; as director of the

West Tennessee Drug Task Force; and as the Chief Criminal Investigator for the Shelby

County District Attorney’s Office. He is a graduate of the FBI National Academy and a

veteran of the U.S. Marine Corps.

C. Legal & Paralegal Support.

Counsel. Gadson W. Perry, a Partner with Butler Snow in Memphis, specializes in complex commercial disputes, catastrophic events and major claims, and appeals. He has represented corporate, governmental, and insurance clients in 12 states and the territory of Puerto Rico, and his experience includes bench and jury trials and arbitrations; state and federal appeals; and class-action, multi-party, and multi-state litigation. Mr. Perry has been selected a Mid-South Rising Star in business litigation by Super Lawyers® every year since 2015 and was named “Ace Associate” by the Memphis Business Journal in 2018. He holds bachelor’s and master’s degrees from Wake Forest University and a law

5

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degree from the University of Tennessee, where he was a legal writing fellow and Chair of the Moot Court Executive Board. He also is a former judicial law clerk for the Honorable Bernice Bouie Donald of the U.S. Court of Appeals for the Sixth Circuit.
Counsel. Shanell L. Tyler, an Associate with Butler Snow in Memphis, represents commercial clients in disputes involving personal injury, breach of contract, labor and employment, internal investigations, and construction. Her experience includes state and federal election law and higher education compliance. Ms. Tyler earned both her bachelor’s degree (summa cum laude) and law degree (magna cum laude) from the University of Memphis, where she interned for the Office of Legal Counsel for the University and the Shelby County Schools Board of Education.
Paralegal. Terri L. Wiseman, a Senior Litigation Paralegal with Butler Snow in Memphis, has more than 20 years’ experience in the legal field, including service as Executive Assistant to the U.S. Attorney for the Western District of Tennessee. Ms. Wiseman provides a suite of services that span the entire litigation process, from initial information-gathering, through discovery and trial, to the archiving of case material.
IV. Overview of the Monitoring Team Activities. Three Core Principles, originally identified in Mr. Stanton’s Submission, govern the Monitoring Team’s activities and interactions with the ACLU and the City: (1) respect for the limited role of the Monitor; (2) clarity, consistency, and accountability in all communications with the MPD; and (3) rigorous transparency. (See ECF No. 180-1, PageID 6559.) As to the first Core Principle, Mr. Stanton has taken steps to make clear the boundaries of the Monitoring Team’s role and to preserve the ultimate authority of the Court. (See, e.g., ECF No. 197-3, PageID 6942-43 (Letter of February 22, 2019); Letter of April 22, 2019, attached as Exhibit 1.) Similarly, with respect to the second Core Principle, all analyses, recommendations, and other work product prepared by the Monitoring Team have been filed or otherwise submitted to the Court in the first instance; nothing has gone directly to the parties until it first has been reviewed and approved by the Court. The Team’s fidelity to the third Core Principle is reflected in its preparation and submission of a budget (see ECF No. 180-1, PageID 6558) and submission of
6

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monthly invoices to the Court, each of which describes the work completed by each member of the Monitoring Team and tracks that member’s time to the nearest tenth of an hour (see ECF Nos. 184, 187, 190, 193, 204).
The following data points are useful for understanding the work that the Monitoring Team has undertaken since the appointment of Mr. Stanton on December 21, 2018 (see ECF No. 176):
 Requested, received, and reviewed 1.46 GB of data from the City—the equivalent of between 125,000 and 175,000 pages of text.
 Exchanged more than 1200 internal and external emails.
 Conducted 15 weekly Monitoring Team conference calls and additional ad hoc calls as necessary, as well as more than a dozen weekly and ad hoc calls with legal counsel for the City and MPD.
 Attended two in-person meetings on February 11-12 and April 22-23, 2019, and two video conference meetings on March 5 and March 27, 2019.
 Met in-person with more than a dozen members of the MPD Command Staff, Real Time Crime Center, and Training Academy.2
 Tracked more than 500 hours of Monitoring Team time in tenths of an hour. (See ECF Nos. 184, 187, 190, 193, & 204.)
 Coordinated with Legility, LLC (formerly Counsel on Call, website available here), Three(i) (website available here), and other vendors to establish a document management system accessible to the entire Monitoring Team and to design and

2

Specific MPD personnel with whom the Monitoring Team has met are Police Director

Michael Rallings; Deputy Director James M. Ryall; Deputy Chiefs Frank Garrett, Terry

Landrum, Michael Shearin, Michael Hardy, Don Crowe, and Sharonda Hampton; Majors

Stephen Chandler and Sharon Cunningham; Lieutenant Tracey Washington; and Manager John

Williams. (ECF No. 197-1, PageID 6852 n. 1.) Additional meetings are being scheduled with Lt.

Col. David L. Rudolph, who oversees the MPD Training Academy, and other MPD personnel as

appropriate.

7

Case 2:17-cv-02120-JPM-jay Document 205 Filed 05/02/19 Page 8 of 20 PageID 7067

establish the Monitoring Team Website, which will go live, with the Court’s approval, in the next ninety (90) days.3

 Produced three separate sets of analyses (see ECF Nos. 197-1, 197-2 & 197-3), and two reports (including this one) (see ECF No. 197).
 Presented a progress report by Mr. Stanton and testimony from Mr. Letten and every SME at the April 23 Hearing on the state of the Monitorship and the City’s efforts to comply with the Kendrick Consent Decree.4 (See ECF Nos. 189, 195, 203; see also Summary of April 23, 2019, Hearing, attached as Exhibit 2.)

A.

Actions Taken by the MPD and Degree of Engagement with the

Kendrick Consent Decree and the Court’s Orders.

Please see the Monitor’s Interim Report, submitted on April 1, 2019 (ECF No. 197), and

the revised recommendations attached as Exhibit 3 to this Report, for the Monitoring Team’s

assessment of the actions taken thus far by the MPD to bring it into compliance with the

Kendrick Consent Decree and the Court’s other Orders.

B.

Data Analysis and Auditing Findings.

As discussed at the April 23 Hearing, this Monitorship has not yet reached the auditing

and data analysis phase. The Monitor expects to submit in camera or to file under seal, as the

Court prefers, an auditing and compliance program that includes an auditing methodology and protocols within the next ninety (90) days.5

3

See infra note 4 and accompanying text.

4

At the April 23 Hearing the Court set several new deadlines, including May 7, 2019,

when the Monitor must submit a list of goals to be achieved within the next ninety (90) days, and

July 24, 2019, when the Monitor must submit his second quarterly report. (See ECF No. 203, at

2.)

5

See supra note 4 and accompanying text and forthcoming Joint Report of the Monitor and

the parties.

8

Case 2:17-cv-02120-JPM-jay Document 205 Filed 05/02/19 Page 9 of 20 PageID 7068

C.

Degree of Progress, or Lack Thereof, for the Quarter and Any Proposed

Timelines for Compliance with Each Section of the Court’s Orders.

The City’s progress, as reported by the Monitor at the April 23 Hearing, is consistent

with the Court’s expectation that the MPD will continue to “exemplif[y] the character and

commitment needed in law enforcement professionals.” (ECF No. 151, PageID 6267.) The City

and the ACLU have engaged in a robust exchange about the adequacy of the City’s Court-

ordered submissions (see generally ECF No. 152) and other efforts, and the Monitoring Team

likewise has made recommendations regarding the City’s efforts. The Team’s understanding is

that the City is working to remedy all remaining areas of disagreement between it and the ACLU

and to resolve all outstanding questions of the Monitoring Team. (See generally ECF No. 197.)

Additional timelines for compliance will be detailed in the Joint Report of the Independent

Monitor and the Parties on or before May 7, 2019. (See ECF No. 203 at 2.)

D.

Areas That Are Not Currently in Compliance with Proposed Timelines

for Compliance.

None.6 (See generally ECF No. 197.)

E.

Summary of Plaintiff’s Positions During The Quarter.

Please see generally ECF No. 197.

F.

Reports on Community Engagement and Any Comments or Reports of

Complaints Received by the Monitoring Team.

To date, the Monitoring Team has not received any comments or complaints. That said,

the Monitoring Team Website, which the Team anticipates will be its primary means of

interacting with the public, is not yet live. Mr. Stanton expects to implement a plan for soliciting

public input as to the City’s efforts to comply with the Kendrick Consent Decree. He and the

6

See supra note 4 and accompanying text and forthcoming Joint Report of the Monitor and

the parties.

9

Case 2:17-cv-02120-JPM-jay Document 205 Filed 05/02/19 Page 10 of 20 PageID 7069

parties jointly will prepare and present the plan to the Court no later than May 23, 2019. (See ECF No. 203 at 2.) Consistent with testimony at the April 23 Hearing, the plan may include focus groups and town-hall style meetings, and all public engagement will be preceded by appropriate notice and held in spaces that are easily accessible to the public. Information about public-engagement opportunities also will be available on the Monitoring Team Website, which the Monitor expects to be live within the next ninety (90) days.7
V. Findings. The Interim Report submitted by Mr. Stanton on April 1, 2019, largely contains the findings and recommendations of the Monitoring Team to date. (See generally ECF No. 197.) Minor revisions to those recommendations are included in an internal Monitoring Team memorandum of April 22, 2019. (See Ex. 3.)
VI. Appendix of Documents Referenced in this Report

Doc.

Description

Page

Ex. 1

Letter of April 22, 2019

6

Ex. 2

Summary of April 23, 2019, Hearing

Ex. 3
ECF No. 3, Case No. 2:76-cv00449)

Revisions to Interim Report (ECF No. 197)
Kendrick Consent Decree

8 8, 10
1

7

See supra note 3 and accompanying text and forthcoming Joint Report of the Monitor

and the parties.

10

Case 2:17-cv-02120-JPM-jay Document 205 Filed 05/02/19 Page 11 of 20 PageID 7070

Doc.
ECF No. 120

Description Order of August 10, 2019

ECF No. 151

Opinion and Order of October 26, 2018

ECF No. Order Memorializing Sanctions (October

152

29, 2018)

ECF No. 176
ECF No. 180-1
ECF No. 184

Order Appointing Independent Monitor
Independent Monitor Submission of Edward L. Stanton III and Butler Snow
LLP
Sealed Order on Costs of Monitor Selection Process

ECF NO. 187

Sealed Order on Costs of Independent Monitor

ECF No. 189

Order on City of Memphis Materials

ECF No. 190

Order on Costs of Monitor Selection Process

ECF No. 193

Sealed Order on Costs of Independent Monitor

ECF No. 195

Order Expanding Scope of Hearing

ECF No. 197

Interim Report of Independent Monitor

Page 2
1, 2, 8 2-3, 8
3,6 passim
7 7 2, 8 7 7 2, 8 passim

11

Case 2:17-cv-02120-JPM-jay Document 205 Filed 05/02/19 Page 12 of 20 PageID 7071

Doc.
ECF No. 197-1
ECF No. 197-2
ECF No. 197-3
ECF No. 197-3, PageID 6942-43
ECF No. 203
ECF No. 204

Description Ex. 1 to Interim Report Ex. 2 to Interim Report Ex. 3 to Interim Report
Letter of February 22, 2019
Order Following Conference Sealed Order on Costs of Independent
Monitor

47337032.v1

Page 7-8 8 8 6
passim 7

12

Case 2:17-cv-02120-JPM-jay Document 205 Filed 05/02/19 Page 13 of 20 PageID 7072

Privileged and Confidential

M E M O R A N D U M

To:

Monitoring Team

From: Edward L. Stanton III

Date:

April 29, 2019

Subject: April 23, 2019, Hearing Summary

INTRODUCTION
On April 23, 2019, the ACLU, the City of Memphis, and the court-appointed independent monitor, Edward L. Stanton III, appeared before the Honorable Jon P. McCalla, United States District Judge for the Western District of Tennessee. The hearing primarily consisted of a presentation from Mr. Stanton and his team of subject-matter expert witnesses (the “Monitoring Team”), who informed the Court and the public about the City of Memphis’s efforts to come into compliance with the Kendrick Consent Decree and the Monitoring Team’s experiences and observations to date. During the hearing, Judge McCalla asked the Monitoring Team questions and gave the ACLU and the City the opportunity to examine each member of the Monitoring Team as he or she gave testimony before the Court. At the close of the hearing, Judge McCalla instructed the ACLU, the City, and the Monitoring Team to collaborate and submit a joint report detailing their goals for the upcoming 90 days and to propose several potential dates at the close of the 90-day window to again appear before the Court and give an updated progress report regarding the stated goals.1 Finally, Judge McCalla also clarified that the Monitoring Team’s authority to give day-to-day guidance to the City as it works through issues that may implicate the Kendrick Consent Decree and, where necessary, to seek guidance from the Court.
PRESENTATION OF THE MONITOR
Mr. Stanton provided the opening presentation. He gave an overview about the Monitoring Team and its work and experiences to date. He stated that the Team has met with the Memphis Police Department Command Staff, toured the Real Time Crime Center, engaged in active discussions about the City’s policies and training materials, participated in video conferences, and engaged in weekly calls. He also commended the City of Memphis for its cooperation so far and its willingness to meet the Monitoring Team’s requests.

1

The joint report is due by May 7, 2019. We have offered to prepare a draft and circulate it

to the City and the ACLU.

EXHIBIT 2

Case 2:17-cv-02120-JPM-jay Document 205 Filed 05/02/19 Page 14 of 20 PageID 7073
April 29, 2019 Page 2
PRESENTATION OF WITNESSES
Theron Bowman. The presentation of witnesses began with testimony from Theron “T” Bowman, Ph.D., the Team’s law enforcement practices expert. Dr. Bowman testified to his extensive law enforcement background and his current role on the monitoring teams of two other police departments, New Orleans and Baltimore. He also gave a report about observations and experiences as a member of this Monitoring Team. Overall, he reported that the Team was organized, collaborative, and committed to the task of helping the City come into compliance with the Kendrick Consent Decree.
Judge McCalla was particularly interested in learning how the City of Memphis police department compared to those in New Orleans and Baltimore. Specifically, the judge asked whether there are structural challenges in the Memphis Police Department similar to those in the NOPD and BPD. Dr. Bowman stated that he believed the City of Memphis’s issues were narrowly focused on activities and policies that may implicate the First Amendment, while the other two cities were grappling with much larger systemic issues. Dr. Bowman also reported that he found the City of Memphis to be receptive and willing to make efforts towards compliance.
The parties then asked follow-up questions about Dr. Bowman’s qualifications and his observations.
---
Rachel Levinson-Waldman. Next, attorney Rachel Levinson-Waldman, the Team’s social media and policy expert, testified to her work with the Brennan Center’s Liberty and National Security Program and her work in the area of civil rights. She also gave a report about the City’s past actions of using covert social media accounts to monitor the activities of persons and groups who had been identified as being involved in certain activist activities. Ms. LevinsonWaldman testified that using covert social media accounts to monitor the activities of these persons and groups and other similar policing techniques can have a chilling effect on the public’s First Amendment rights. She expressed her concern about maintaining a community where the public felt free to exercise their rights. To that end, Ms. Levinson-Waldman called for an auditing function so that the City could track its progress towards compliance the Kendrick Consent Decree.
Judge McCalla asked Ms. Levinson-Waldman about her experience with drafting national legislation on police departments’ use of social media and Congress’s current thoughts on the topic. Ms. Levinson-Waldman reported that much of the Brennan Center’s proposed legislation centered on making sure that the public was adequately informed about local police departments’ social media policies and potential use of covert accounts to gain access to members of the public. Regarding Congress, Ms. Levinson-Waldman reported that while Congress is currently interested in social media usage, she did not believe that there was much overlap in the issues that pertain to this case—the use of covert social media accounts by police departments.

Case 2:17-cv-02120-JPM-jay Document 205 Filed 05/02/19 Page 15 of 20 PageID 7074
April 29, 2019 Page 3

The parties asked Ms. Levinson-Waldman about her testimony that the City has made
progress towards compliance with the Kendrick Consent Decree. Ms. Levinson-Waldman replied
that so far the City has been cooperative in its approach to revise its policies and training materials per the ACLU’s concerns.2 She also said that the City has complied with the
Monitoring Team’s requests for documents and answered the Monitoring Team’s questions.

---

John Henegan.

Mr. Stanton then called the Team’s First Amendment expert,

attorney John Henegan. Mr. Henegan testified that the City of Memphis needs to do a

comprehensive review of its uniform standard operating policies, training, and various other city

ordinances to make sure that they are aligned with the Kendrick Consent Decree and the Court’s

Order regarding the Decree. Specifically, Mr. Henegan noted that the police department plays a

role in issuing permits for public demonstrations and that this implicates the public’s First

Amendment rights. Examples such as this, Mr. Henegan opined, highlight the need for the City

to take a broad approach to coming into compliance. Mr. Henegan suggested working with the

ACLU in their efforts. He also suggested that the City keep abreast of case law and best practices

materials.

Judge McCalla asked Mr. Henegan about the potential for use of materials from law
schools such as University of Memphis, University of Mississippi, and Vanderbilt to help guide these efforts.3 Mr. Henegan agreed that these items could be helpful.4

The ACLU asked follow-up questions about Mr. Henegan’s suggestions that it work with the City to do a comprehensive review. The City of Memphis asked Mr. Henegan whether he thought that best practices materials and cases could really be applicable given the confines of the Kendrick Consent Decree. Particularly, they asked whether, in his opinion, the Consent Decree obligated the City to do more than best practices and the First Amendment requires. Mr. Henegan replied that the judge had already ruled on the applicability of the Consent Decree and the First Amendment. Mr. Henegan then added that the City should review its policies and training in light of the Court’s Order and the Consent Decree.

---

2

See infra note 5 and accompanying text.

3

Judge McCalla also cautioned that the Team’s inquiry should not be too broad. And in

questioning Mr. Henegan, the City’s counsel highlighted the differences between the Kendrick

Consent Decree, constitutional requirements, and best practices.

4

Mr. Henegan also echoed suggestions made by Dr. Bowman about the International

Association of Chiefs of Police (IACP), which has training materials and recommendations for

constitutional policing and best practices. Additionally, MPD already participates in “PSP,”

which provides national technical training and subject-matter experts and could make useful

resources for the Team.

Case 2:17-cv-02120-JPM-jay Document 205 Filed 05/02/19 Page 16 of 20 PageID 7075
April 29, 2019 Page 4

David McGriff.

Mr. David McGriff, the Team’s auditing and compliance expert,

took the witness stand next. He reported that he looked forward to implementing an auditing

system once the time for audits arises. He also reported that the he believed that the Monitoring

Team and the parties have so far been collaborative. Judge McCalla noted the sensitivity around

the auditing process and requested that the Monitoring Team submit in camera its upcoming

auditing plans. The ACLU and the City did not have any questions for Mr. McGriff during the

hearing.

---

Jim Letten. Lastly, attorney Jim Letten, the deputy monitor, presented on his background in law enforcement as a federal prosecutor and his experiences with the New Orleans police department consent decree. He also testified to his observation that the City of Memphis appeared to be collaborative and cooperative.

Judge McCalla asked Mr. Letten about the Team’s goals for the next 90 days. Mr. Letten stated that he felt that the Team could finalize its suggestions for scenarios previously asked by the City and that the team could meet with the City’s training instructor, Lt. Col. David Rudolph. Judge McCalla then instructed the City and the Monitoring Team to promptly schedule this meeting.

ROLE OF THE MONITORING TEAM

Not only did the hearing consist of the Monitoring Team’s presentation, Judge McCalla also answered the City’s request for clarification about the Monitoring Team’s role in giving guidance on the City’s day-to-day issues. Judge McCalla stated that the Monitoring Team is a resource for the City’s pressing matters and, in the event that there is a need for more guidance, the Court is willing to take up issues, provided that they are not requests for mere advisory opinions. In addition to granting the Monitoring Team the authority to make day-to-day decisions, Judge McCalla referred to Mr. Stanton as the Court’s “Special Master” for this matter.

NEXT STEPS

Before closing the hearing, the Judge ordered the parties and the Monitoring Team to submit a joint 90-day goal plan to the Court within the next two weeks—by May 7, 2019. Judge McCalla stated that the goals should include the following:
 a date and central, easily accessible place to hold a community engagement meeting;5

 Monitoring Team interviews with Lt. Col. Rudolph, rank-and-file MPD officers, and other City and MPD personnel as appropriate;

5

Judge McCalla noted that community engagement should include focus groups as well as

town-hall type meetings and that all meetings to be preceded by appropriate notice and provide

broad access to the public.

Case 2:17-cv-02120-JPM-jay Document 205 Filed 05/02/19 Page 17 of 20 PageID 7076
April 29, 2019 Page 5
 A date by which the parties will have created a process for the approval of investigations that may incidentally result in the collection of First Amendment information.
 A date by which the parties will have designed an approved, interactive training process;  A timeline for training on Kendrick Consent Decree topics  Monitoring Team website completion;  Final reviews and proposed revisions of City / MPD ordinances and policies; and  submission of an auditing/compliance plan;6  other topics that the parties agree upon.
The submission must also propose hearing dates for the Monitoring Team to come present again to the Court at the close of the 90 days. Judge McCalla said that the parties should propose three different dates, over three different weeks that work for all parties. Judge McCalla also ordered the parties to submit a joint proposed Community Engagement Plan within thirty (30) days—by May 23, 2019.7 Finally, the Court ordered that the Monitoring Team submit a report no later than July 24, 2019, regarding the progress towards meeting the stated goals.
47317675.v1

6

Submitted in camera or filed under seal. According to Judge McCalla, the plan must

include (1) auditing approach, (2) protocols, and (3) methods of review. Ms. Levinson-Waldman

noted during her testimony that the New York Police Department has installed an Inspector

General’s Office (OIG). She recognized that the NYPD is unique among police departments in

that it is essentially a counter-terrorism department, but our auditing plan should consider

whether instituting a similar office for MPD would make sense and, if not, the alternative

safeguards that will ensure ongoing compliance with the consent decree.

7

See supra note 5 and accompanying text.

Case 2:17-cv-02120-JPM-jay Document 205 Filed 05/02/19 Page 18 of 20 PageID 7077

Confidential Attorney Work Product

M E M O R A N D U M

To:

Monitoring Team

From: Edward L. Stanton III

Date:

April 22, 2019

Subject: Minor Revisions to Interim Report

OVERVIEW The Interim Report submitted by this Monitoring Team on April 1, 2019 (ECF No. 197), contained three sets of recommendations: (1) recommendations regarding the City’s submissions to the Court of January 14, 2019, and the ACLU’s objections to those submissions (see ECF Nos. 183, 185, 186, 197-1); (2) recommendations regarding the revised submissions that the City sent to the ACLU after receiving the ACLU’s objections and the ACLU’s response to the City’s revisions (ECF Nos. 197, PageID 6847-50; 197-2, PageID 6865-84); and (3) recommendations regarding eleven hypothetical situations put forward by the City on February 19, 2019 (ECF Nos. 197, PageID 6850; 197-3, PageID 6924-39). At our meeting earlier today, the Team made minor revisions to the second set of recommendations (ECF No. 197-2) as follows: 1. Departmental Regulation 138 Revised  Points 1-3 no changes.  Point 4 revised as follows: the Team recommends revising the second sentence in the
fourth paragraph as follows: “No member shall engage in any action or disseminate damaging, derogatory, false or anonymous information about any person which will deprive any individual of their First Amendment Rights; nor will any member
EXHIBIT 3

Case 2:17-cv-02120-JPM-jay Document 205 Filed 05/02/19 Page 19 of 20 PageID 7078
April 22, 2019 Page 2
encourage, cooperate with, or contract with any local, state, federal or private agency to plan or conduct any investigation involving political intelligence or for the purpose, expectation or anticipation of political intelligence.” (PageID 6866-67.)
 Point 5 revised to track original language of DR 138, Para 5 as follows:
o “Investigations into unlawful conduct that may incidentally result in the receipt of information relating to First Amendment rights are permissible, but require approval by the Director of Police Services or his/her designee.” (PageID 6867-68.)
 Point 6 revised final sentence of Revised DR 138, Para 5 as follows (PageID 6868):
o “The Police Director or his / her designee may grant written extensions of the initial ninety (90)-day period of up to 90 days each when such extensions are justified by extraordinary circumstances. For each such extension, the following two conditions must be satisfied:
 (1) The Director or his / her designee must consult with the City Attorney or the City Attorney's designee (who must be a lawyer in good standing with the Tennessee Board of Professional Responsibility); and
 (2) The investigating officer must complete the [Kendrick Consent Form] and state in writing either the persistent facts that establish extraordinary circumstances or new facts that do the same.”
2. Memphis Police Department Political Intelligence Training for the Office of the Homeland Security, the Real Time Crime Center, and the Command Staff:
 2(a) Training Plan
o No changes
 2(b) PowerPoint Presentation
o Points 1-5 no changes
o Point 6
 Now states: “more generally, the Team recommends that the City’s examples not single out one or two named groups, because it may be interpreted to limit the scope of this prohibition, which applies to any assembly or group of individuals whose purpose is to exercise

Case 2:17-cv-02120-JPM-jay Document 205 Filed 05/02/19 Page 20 of 20 PageID 7079
April 22, 2019 Page 3
rights protected by the First Amendment and the Consent Decree. (PageID 6871-72.)
3. Authorization for Investigations that May Incidentally Result in the Collection of information Related to the Exercise of First Amendment Rights under Section G of the Kendrick Consent Decree
 3(a) Policy and Guidelines for Delegation of Authority of Director of Police Services to Authorize Investigations Which May Interfere with the Exercise of First Amendment Rights under Section G of the Kendrick Consent Decree
o No changes
 3(b) Policy and Procedure: Authorization for Investigations Which May Incidentally Result in the Collection of Information Related to the Exercise of First Amendment Rights Under Section G of the Kendrick Consent Decree
o No changes
 3(c) Form: Authorization for Investigations That May Incidentally Result in Political Intelligence.
o Revised recommendation: The Team would like clarification about the kinds of information that would be provided by the City as precautions and techniques. (PageID 6876.)
4. Written Guidelines for the use of Manual Social Media Searches and Social Media Collators
 Points 1-3 no changes.
 Point 4: correct quotation to say, “Any information gathered and retained from social media...” (PageID 6879-80.)
5. Social Media Terms
 No changes
47178381.v1 47293821.v1

 
 Case 2:17-cv-02120-JPM-jay Document 219 Filed 08/07/19 Page 1 of 17 PageID 7577

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ACLU OF TENNESSEE, INC.,
Intervening Plaintiff, v. CITY OF MEMPHIS, TENNESSEE
Defendant.

)

)

)

)

)

No. 2:17-cv-2120-JPM-jay

)

)

)

)

)

JULY 2019 QUARTERLY REPORT OF THE INDEPENDENT MONITOR

Edward L. Stanton III (TN BPR #18904) BUTLER SNOW LLP 6075 Poplar Avenue, 5th Floor Memphis, TN 38119 Telephone: (901) 680-7200 Facsimile: (901) 680-7201 Email: Edward.Stanton@butlersnow.com
Independent Monitor

Case 2:17-cv-02120-JPM-jay Document 219 Filed 08/07/19 Page 2 of 17 PageID 7578
TABLE OF CONTENTS I. INTRODUCTION & EXECUTIVE SUMMARY...................................................................... 1 II. OVERVIEW OF THE MONITORING TEAM’S ACTIVITIES .............................................. 1 III. PROGRESS TOWARDS NINETY-DAY GOALS ................................................................. 4
A. Review of the MPD’s Policies, Procedures, & Training Materials. ....................... 4 1. The Current Status of the City’s Policies, Procedures, and Training Materials....................................................................................... 5 2. Recommendations Regarding the City’s Hypotheticals. ............................ 8 3. Real-Time RFAs for Discrete Action by MPD........................................... 9
B. New Process for Authorizing Investigations That May Incidentally Result in the Collection of First Amendment Information ..................................... 9
C. Auditing & Ongoing Compliance with the Kendrick Consent Decree. .................................................................................................................. 10
IV. PUBLIC ENGAGEMENT ..................................................................................................... 10 V. CONCLUSION ........................................................................................................................ 13 APPENDIX OF DOCUMENTS REFERENCED IN THIS REPORT......................................... 14

Case 2:17-cv-02120-JPM-jay Document 219 Filed 08/07/19 Page 3 of 17 PageID 7579

I. INTRODUCTION & EXECUTIVE SUMMARY This Second Quarterly (Q2) Report follows the Monitoring Team’s Interim and First Quarterly (Q1) Reports (ECF Nos. 197, 205), and the Court’s April 23, 2019, hearing on the progress of the City’s efforts to comply with the Kendrick Consent Decree.1, 2 At that hearing, the Court Ordered the Monitoring Team to submit the following: by May 7, 2019, a list of goals to be accomplished within ninety days; by May 23, 2019, a joint public engagement plan with Intervening Plaintiff ACLU of Tennessee, Inc. (ACLU-TN), and Defendant City of Memphis (City); and by July 24, 2019, a Q2 Report that tracks the parties’ and the Monitoring Team’s “progress towards the accomplishment of established goals.” (Order, April 23, 2019, ECF No. 203 at 2.) The ninety-day goals (ECF No. 208) and joint public engagement plan (ECF No. 211) were submitted as Ordered. This Q2 Report now describes the progress towards those goals and implementation of the public engagement plan. It begins with an overview of the Monitoring Team’s activities since the April 23 hearing, addresses each of the four ninety-day goals in turn, and concludes with a discussion of the Monitoring Team’s community-engagement efforts.
II. OVERVIEW OF THE MONITORING TEAM’S ACTIVITIES As of May 2, 2019, when the Monitoring Team’s Q1 Report was filed, the Monitoring Team had done the following:

1

The decree is ECF No. 3 in Case No. 2:76-cv-000449 before this Court and has been

made publicly available on the Monitoring Team’s website, www.memphispdmonitor.com.

2

The larger context of this lawsuit, the appointment of Edward L. Stanton III as

Independent Monitor, and the Monitoring Team’s activities from December 21, 2018, when Mr.

Stanton was appointed, to April 23, 2019, when the Court held its first hearing on the progress of

the Monitoring Team, are captured in Mr. Stanton’s Independent Monitor Submission (ECF No.

180-1) and in the Interim and First Quarterly Reports of the Monitoring Team (ECF Nos. 197,

205), all available on www.memphispdmonitor.com.

1

Case 2:17-cv-02120-JPM-jay Document 219 Filed 08/07/19 Page 4 of 17 PageID 7580
• Requested, received, and reviewed 1.46 GB of data from the City—the equivalent of between 125,000 and 175,000 pages of text.
• Exchanged more than 1200 internal and external emails.
• Conducted 15 weekly Monitoring Team conference calls and additional ad hoc calls as necessary, as well as more than a dozen weekly and ad hoc calls with legal counsel for the City and MPD.
• Attended two in-person meetings on February 11-12 and April 22-23, 2019, and two video conference meetings on March 5 and March 27, 2019.
• Met in-person with more than a dozen members of the MPD Command Staff, Real Time Crime Center, and Training Academy.
• Tracked more than 500 hours of Monitoring Team time in tenths of an hour.
• Coordinated with Legility, LLC (formerly Counsel on Call, website available here), Three(i) (website available here), and other vendors to establish a document management system accessible to the entire Monitoring Team and to design and establish the Monitoring Team’s website, which was to go live, with the Court’s approval, in the next ninety (90) days. (As has now occurred.)
• Produced three separate sets of analyses (see ECF Nos. 197-1, 197-2 & 197-3), and two reports (see ECF Nos. 197, 205).
• Presented a progress report at the hearing on April 23, 2019, by Independent Monitor Edward L. Stanton III, Deputy Monitor Jim Letten, and every subject-matter expert (SME) on the Monitoring Team.
These efforts have continued and expanded since May 2, 2019. In the eighty-four days between the Q1 Report and this report, the Monitoring Team has done the following:
• Requested, received, and reviewed more than 1,000 additional pages of documents from the City (on May 7, June 7, and July 19, 2019).
• Exchanged more than 1,000 internal and external emails.
• Conducted 12 weekly Monitoring Team conference calls and additional ad hoc calls as necessary, as well as more than a dozen weekly and ad hoc calls with legal counsel for the City and MPD.
2

Case 2:17-cv-02120-JPM-jay Document 219 Filed 08/07/19 Page 5 of 17 PageID 7581

• Conducted a conference call with the City and the ACLU-TN on May 10, 2019.
• Conducted in-person Monitoring Team meetings on July 11 and 12, 2019.
• Met in-person with Lt. Col. David L. Rudolph, who oversees the MPD Training Academy, on May 7, 2019, and with Deputy Chief Don Crowe, whose responsibilities include overseeing information technology, and Police Legal Counsel Zayid Saleem, Esq., on May 16, 2019.
• Tracked more than 300 hours of Monitoring Team time in tenths of an hour. (See, e.g., Sealed ECF No. 213 and ECF No. 215.)
• Coordinated with the Court, Three(i) (website available here), and local media to launch the Monitoring Team’s website, www.memphispdmonitor.com, which went live on July 2, 2019. Press releases announcing the website and the Monitoring Team’s first community forum were issued on July 2 and 11, 2019. (See Press Releases, attached here as Exhibit 1.)
• Hosted the Monitoring Team’s first community forum on July 11, 2019, at Mississippi Boulevard Christian Church, 70 N. Bellevue Blvd., Memphis, TN 38104.3
• Met in-person with community members Paul Garner, Jimmy Hollingsworth, Hunter Demster, Aaron “Al” Lewis, and Charles Belenky.4
• Conferred with more than a dozen community members via phone, email, and www.memphispdmonitor.com.
• Participated in interviews with local media.5
• Provided real-time authorizations for discrete MPD activity on three occasions: May 9, 2019;6 June 12, 2019;7 and July 12, 2019.8

3

The forum was live-streamed and remains available for viewing on

www.memphispdmonitor.com and on YouTube (link here).

4

All community members identified here expressly consented to the use of their names in

this report.

5

See, e.g., “Live at 9: Monitoring MPD,” and “Team Monitoring MPD Conduct to Speak

at Public Forum,” on local Channel 3 (links here and here); and “Stanton Says Monitoring of

Police Surveillance Ban Comes with Tension,” in the Daily Memphian (link here).

6

(See May 9, 2019, Letter from E. Stanton to B. McMullen, attached as Exhibit 2. The

Monitoring Team requests that this letter be sealed.)

3

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• Participated in a video conference with members of Facebook’s legal, public policy, and law enforcement teams on July 19, 2019.
These and ongoing efforts are described in greater detail where relevant to the ninety-day goals and the joint community engagement plan discussed below.
III. PROGRESS TOWARDS NINETY-DAY GOALS The core of this report are the Monitoring Team’s four ninety-day goals, submitted to the Court on May 7, 2019 (see ECF No. 203), and filed on May 13, 2019 (See ECF No. 208). The Monitoring Team’s progress on the first three goals—(1) review of the Memphis Police Department (MPD)’s policies, procedures, and training materials, (2) creation of an authorization process for investigations that may incidentally result in the collection of First Amendment information, and (3) an auditing and compliance program to ensure the MPD’s ongoing compliance with the Kendrick Consent Decree (ECF No. 3, Case No. 2:76-cv-000449)—is summarized immediately below but reflected in full in Exhibits 3 and 4 to this report.9 The final goal, implementation of a public engagement plan, is discussed below in § IV. A. Review of the MPD’s Policies, Procedures, & Training Materials. The Monitoring Team’s review of the MPD’s policies, procedures, and training materials has been ongoing since January 14, 2019, when the City of Memphis submitted existing and proposed policies, procedures, and training materials related to the Kendrick Consent Decree

7

(See Sealed ECF No. 214 at 3-4 & Ex. 2.) The Monitoring Team currently is evaluating a

July 16, 2019, request for authorization (RFA) by the City and pursuing additional information

related to a July 19, 2019, disclosure by the City related to the use of Facebook.

8

The Monitoring Team will provide additional information related to this authorization in

camera or under seal, as the Court prefers, prior to the scheduled hearing on August 27, 2019.

(See ECF No. 212.)

9

Exhibit 4, the Monitoring Team’s proposed auditing and compliance program, is being

submitted separately for the Court’s consideration, and the Monitoring Team requests that the

Court consider filing it, if at all, under seal.

4

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(Submissions) to the Court. (See ECF Nos. 151, 152, 183 & 185.) After the ACLU of Tennessee
(ACLU-TN) responded to those Submissions (see ECF No. 186), the City, ACLU-TN, and the
Monitoring Team exchanged a series of revisions, responses, and recommendations that are
captured in the Monitoring Team’s Interim and Q1 Reports. (ECF Nos. 197, 205.) Also captured
in those reports are the Monitoring Team’s recommendations regarding certain hypothetical
scenarios submitted directly to the Monitoring Team by the City.
During this review of policies, procedures, and hypotheticals, the City has made real-time
requests for authorization (RFAs) from the Monitoring Team to take specific actions. Following
this Court’s guidance, Mr. Stanton has authorized discrete action by the MPD on three occasions: May 9, 2019; June 12, 2019; and July 12, 2019. 10, 11
1. The Current Status of the City’s Policies, Procedures, and Training Materials. On June 7, 2019, the City requested additional guidance regarding the recommendations
in the Monitoring Team’s Interim and Q1 Reports. (See June 7, 2019, Letter from M. Glover to E. Stanton, attached as Exhibit 5.)12 That guidance concerned eight specific issues:
• Revised DR 138;
10 At the hearing on April 23, 2019, this Court stated that the Monitoring Team has authority qua “special master” to authorize or prohibit discrete action by the City:
The first step is always to go to the monitor’s team and seek their input, but sometimes the monitor may say, on this issue we need to petition the Court on it, and that’s fine. And, then, sometimes, [the City] may disagree, either one of the parties in this case might disagree with either the resolution—or the resolution, and so, in essence, it’s like an appeal, but you just need to say we request the Court to review X, and we will. (Hr’g Tr., ECF No. 207, PageID # 7189: 16-25.) 11 See supra notes 6-8 and accompanying text. 12 The Monitoring Team requests that, beginning with the section, “The Eleven Scenarios,” Pages 10-20 of this letter be redacted, or the entire letter sealed, as the Court prefers. As the Monitoring Team noted in its Interim Report (ECF No. 197, PageID # 6850), these inquiries are sensitive, and the City has requested that access to them be restricted for public-safety reasons.
5

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• The MPD Training Plan;
• The MPD Training PowerPoint Presentation;
• Guidelines for the Police Director’s delegation of authority to authorize investigations;
• Authorization for criminal investigations that may incidentally result in the collection of First Amendment information, governed by § G of the Kendrick Consent Decree (§ G Investigations);
• The Authorization Form for § G Investigations;
• The MPD Social Media Policy; and
• The certification process for MPD searches of social media.
(See Ex. 5 at 1-10.) The Monitoring Team will respond to these requests prior to the scheduled
hearing on August 27, 2019 (see ECF No. 212), and will supplement this report with those
responses. The status of the Monitoring Team’s review of these requests, current as of July 23, 2019, is attached to this Report as Exhibit 3.13
Concurrently with its examination of the City’s Submissions, and as instructed by the Court,14 the Monitoring Team has surveyed police department policies related to social media
13 For reasons described in note 12 above, the Monitoring Team requests that, beginning with the section, “The Eleven Scenarios,” Pages 32-51 of Exhibit 3 be redacted, or the entire exhibit sealed, as the Court prefers. 14 In its Order sanctioning the City for violating the Kendrick Consent Decree, the Court noted that, by successfully implementing the decree, the “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.” (ECF No. 151, PageID # 6278 (citing Rachel Levinson-Waldman, Government Access to and Manipulation of Social Media: Legal and Policy Challenges, 61 How. L.J. 523 (2018).) But the Court also observed that Memphis “is not alone in confronting the questions presented by modern surveillance.” (Ibid.) The Court elaborated on this observation at the April 23, 2019, hearing, explaining that “Congress is starting to look at the issue of regulation and social media” and asking where the national line-drawing process between privacy rights and public safety “fit[s] into what will be appropriate [in this case].” (Hr’g Tr., ECF No. 207, PageID # 7130:24-7131:10.) The Court is concerned that Memphis be
6

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use across the country. (See Comparison Chart-PD Social Media Policies, attached as Exhibit 6.) Guided by Public Policy and Social Media SME Rachel Levinson-Waldman (see ECF No. 205 at PageID # 7063-64), the Monitoring Team has concluded the following:
• Most police department policies include, at the outset, a clear statement of the purposes that social media can serve.
• Some department policies, such as the Austin, TX, policy, state that social media may be used only for “a valid law enforcement purpose,” such as preemployment background investigations, crime analysis and situation assessment reports, criminal intelligence development, or criminal investigations.
• Other policies prohibit, in addition to uses of social media that might violate the First Amendment, attempts to “seek or retain information about an individual’s race, ethnicity, citizenship, place of origin, disability, gender, or sexual orientation, unless relevant to that individual’s criminal conduct or activity or if required for identification.”
The Monitoring Team is not aware of any Congressional activity related to these issues at present, but one draft bill is in progress.15
On July 19, 2019, the Monitoring Team also participated in a video conference with members of Facebook’s legal, public policy, and law enforcement teams. That conference included two of Facebook’s privacy and public policy managers and the leads for the Americas and North America law enforcement teams. Relevant conclusions from that conference are as follows:
“both in sync [with national trends] but not necessarily adopt[ ] a lower standard.” (Id. at PageID # 7131:16-18.) 15 This bill was developed at the Brennan Center for Justice, where Ms. Levinson-Waldman is Senior Counsel to the Liberty and National Security Program. (See ECF No. 205 at PageID # 7063-64.)
7

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• All law enforcement requests to Facebook go through Facebook’s law enforcement portal, which was established in 2012. A recognized law enforcement email domain—e.g., policeofficer@mpd.cityofmemphis.gov—is required to access the portal.
• Proof of a warrant, subpoena, or other legal process is necessary to obtain information via the portal. In case of an imminent threat to life or a risk of serious bodily injury, information can be obtained through the portal based on a representation that legal process will be obtained, and the law-enforcement officer must follow up with proof of that process.
• Facebook’s real-name rule applies equally to civilians and law enforcement. Facebook takes down or disables millions of fake accounts every day—often bots or scam accounts, but also undercover law enforcement accounts—and takes affirmative steps to educate law enforcement agencies about what they are and are not allowed to do on the platform.
• Any Facebook user’s name, cover photo, and profile photo are always available; additional availability depends on an individual user’s privacy settings. Posts in public groups are generally visible; closed and secret groups are more restricted. See, e.g., “What Are the Privacy Settings for Groups,” https://www.facebook.com/help/220336891328465?helpref=about_content.
• As a default matter, Facebook Live streams are accessible to the public, but access can be limited to specific audiences—e.g., a user’s entire friend group or a group of specific people.
• Facebook proactively reports certain information—such as child sexual exploitative imagery—to law enforcement and has a process for informing law enforcement when a user appears likely to harm herself or others.
Many of the concerns that came out of the Monitoring Team’s first community forum,
discussed below in § IV, had to do with MPD’s use of Facebook and other social media and the
specific uses that the Court held to violate the Kendrick Consent Decree.
2. Recommendations Regarding the City’s Hypotheticals. The status of the Monitoring Team’s review of the City’s submitted hypotheticals,
current as of July 23, 2019, is included on pages 32-51 of Exhibit 3. The Monitoring Team
8

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requests that those pages be redacted, or the entire exhibit sealed, for the public-safety reasons identified in the team’s Interim Report.16
3. Real-Time RFAs for Discrete Action by MPD. At the hearing on April 23, 2019, the Court expressly authorized the Monitoring Team qua “special master” to authorize or prohibit specific action by the MPD.17 Since the hearing and based on that authorization, Mr. Stanton has granted RFAs for specific action on three occasions: May 9, 2019; June 12, 2019; and July 12, 2019.18 The May 9, 2019, authorization is described in Exhibit 2 to this report, which the Monitoring Team has requested be sealed. Similarly, the June 12, 2019, authorization is described at Sealed ECF No. 214 at 3-4 & Ex. 2. The Monitoring Team will provide additional information related to the third, July 12, 2019, authorization in camera or under seal, as the Court prefers, prior to the scheduled hearing on August 27, 2019. (See ECF No. 212). The Monitoring Team has concerns related to that request, as well as followup questions for the City related to the June 12, 2019, RFA, all of which will be communicated to the City and the Court prior to August 27, 2019. The Monitoring Team also is evaluating a July 16, 2019, request for authorization (RFA) by the City and pursuing additional information related to a July 19, 2019, disclosure by the City related to the use of Facebook.19 B. New Process for Authorizing Investigations That May Incidentally Result in
the Collection of First Amendment Information Please see Pages 5-7 of Exhibit 5 and Pages 11-19 of Exhibit 3.
16 See supra notes 12 and 13 and accompanying text. 17 See supra note 10 and accompanying text. 18 See supra notes 6-8 and accompanying text. 19 One of the three Core Principles to which Mr. Stanton and the Monitoring Team have pledged to remain faithful is “rigorous transparency.” (E.g., ECF No. 205 at PageID # 7065.) In light of that Core Principle, the Monitoring Team requests that the Court consider, and perhaps put to the City, when and under what circumstances RFAs and similar inquiries by the City may be made available to the public without compromising public safety.
9

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C. Auditing & Ongoing Compliance with the Kendrick Consent Decree. Please see the Monitoring Team’s proposed Auditing and Compliance plan for the MPD, which will be separately submitted, in camera or under seal as the Court prefers, as Exhibit 4.
IV. PUBLIC ENGAGEMENT In the Monitoring Team’s ninety-day goals (see ECF No. 208 at PageID # 7217) and joint public engagement plan with the City and the ACLU-TN (see generally ECF No. 211), the team identified four community engagement efforts that would consist of (1) a public website, (2) media exposure, (3) community forums, and (4) focus groups. The public website— www.memphispdmonitor.com—was submitted to the Court on June 18, 2019, for review; launched on July 2, 2017; and announced in print and digital media via press release. (See Ex. 1.) The Monitoring Team also has participated in multiple media interviews,20 and the first community forum, held on July 11, 2019, at Mississippi Boulevard Christian Church, was attended by media, live streamed, and remains available for viewing online.21 Focus groups are currently being scheduled as suggested by Court during the hearing on April 23, 2019 (see ECF No. 207, PageID # 7179-80), and as identified in the ninety-day goals (ECF No. 208, PageID # 7217) and the joint public engagement plan. (ECF No. 211, PageID # 7282). At the forum on July 11, 2019, community members cited a litany of frustrations with the City, the MPD, and the Monitoring Team. Many were suspicious of the Monitoring Team and its relationship to the City, and there was considerable confusion about the scope of the team’s mandate and the role of community members in fulfilling that mandate. At one point, community members asked police officers who were attending the forum to leave. Before that, community
20 See supra note 5 and accompanying text and infra note 22 and accompanying text. 21 See supra note 3 and accompanying text.
10

Case 2:17-cv-02120-JPM-jay Document 219 Filed 08/07/19 Page 13 of 17 PageID 7589

members asked to see the notes taken by one officer. Frustration led some attendees to leave

before the forum was over, although others remained after the forum ended to speak with the Monitoring Team.22

What has come out of the forum, however, has been encouraging. Within two business

days, Mr. Stanton personally had contacted every person who provided a phone number or email

address at the forum. More than a dozen community members since have corresponded with the

Monitoring Team via phone, email, and www. memphispdmonitor.com. Five community

members—Paul Garner, Jimmy Hollingsworth, Hunter Demster, Aaron Lewis, and Charles Belenky23—have met one-on-one with the Monitoring Team and have referred other community

members for follow-up meetings. They and other community members also have agreed to

participate in the upcoming focus groups. Lessons learned from these meetings, the focus groups,

and the first forum will inform the second, which will be scheduled before the end of this year.

(See ECF No. 211, PageID #7282.)

But community members already have offered several specific recommendations:

• (A)

The Monitoring Team should be broadened to include one or more “lay” community members. This broadening would help establish trust between the Monitoring Team and the community and facilitate better communication between the two.

• (B)

Subsequent community forums should include an educative component. Not enough time at the first forum was devoted to explaining (1) what the Kendrick Consent Decree is and requires; (2) how the City violated the decree; (3) the Monitoring Team’s role in helping bring the City into compliance with the decree; (4) community members’ role in facilitating compliance and reporting non-compliance.

22 Media coverage of the forum on local Channel 5 (“MPD Consent Decree Meeting Disintegrates”) and the local public radio affiliate, WKNO (“MPD Oversight Committee Faces Skeptical Public”), is available here and here. See also supra note 5 and accompanying text.
23 See supra note 4 and accompanying text.

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• (C)

Although focus groups are contemplated by the joint public engagement plan, subsequent community forums should include small groups sessions. Such sessions would facilitate better communication and diminish any apparent barriers between the Monitoring Team and community members.

• (D)

In addition to a website, the Monitoring Team should host and regularly update a Facebook page or other social media. Many people do not read the news.

• (E)

Hard copies of documents discussed at community forums, focus groups, and any one-on-one meetings should be made available to attendees. Not everyone has access to the Internet.

• (F) • (G)

The Monitoring Team should do a better job of discussing the subjects in (B) and should not overly rely on or refer people to www.memphispdmonitor.com The Monitoring Team should participate in Facebook Live or other online streaming question-and-answer sessions with community members.

• (H)

The Monitoring Team should coordinate with the ACLU-TN, the MidSouth Peace and Justice Center, and other social justice organizations to ensure convenient timing and locations for future community forums, focus groups, and other community outreach.

• (I)

Community members want more information on MPD’s use of social media. In particular, community members are aware that the MPD’s use of the “Bob Smith” account was held by the Court to violate the Kendrick Consent Decree, but also understand that several other undercover accounts improperly being used by the City were disabled. They want to know the names of those other accounts.24

The Monitoring Team commends these recommendations to the Court’s discretion.

24 The July 19, 2019, disclosure by the City, referenced in note 7 and § III(A)(3), above, is related to this request by community members.
12

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V. CONCLUSION Mr. Stanton and the Monitoring Team look forward to discussing this report and any subsequent developments at the hearing on August 27, 2019. All members of the Monitoring Team will be present for the hearing. RESPECTFULLY SUBMITTED, this 24th day of July 2019,
/s/ Edward L. Stanton III Edward L. Stanton III (TN BPR #18904) BUTLER SNOW LLP 6075 Poplar Avenue, 5th Floor Memphis, TN 38119 Telephone: (901) 680-7200 Facsimile: (901) 680-7201 Email: Edward.Stanton@butlersnow.com Independent Monitor
13

Case 2:17-cv-02120-JPM-jay Document 219 Filed 08/07/19 Page 16 of 17 PageID 7592

APPENDIX OF DOCUMENTS REFERENCED IN THIS REPORT

Doc. Ex. 1

Description July 2 and July 11, 2019, Press Releases

Ex. 2

May 9, 2019, Letter from E. Stanton to B. McMullen

Ex. 3

Monitoring Team Recommendations as of July 23, 2019 (not yet final)

Ex. 4

Monitoring Team Proposed Auditing and Compliance Plan (to be submitted separately)

Ex. 5

June 7, 2019 Letter from M. Glover to E. Stanton

Ex. 6

Comparison Chart – PD Social Media Policies

ECF No. 3, Case No. 2:76-cv000449

Kendrick Consent Decree

ECF No. 151

Opinion and Order of October 26, 2018

ECF No. Order Memorializing Sanctions (October

152

29, 2018)

ECF No. Order Docketing Materials Submitted by

180

Independent Monitor (January 7, 2019)

ECF No. 183

Sealed Document Court-Ordered Search Terms (January 14, 2019)

ECF No. 185

Order Docketing City Submissions

ECF No. 186

ACLU-TN Objections to City Submissions

ECF No. 197

Interim Report

ECF No. 203

April 23, 2019, Order

14

Pages 3
3, 9 6, 8, 9
4, 10 5, 9 7
1, 4
5, 6 5 1 5 5 5 1, 2, 5 1, 4

Case 2:17-cv-02120-JPM-jay Document 219 Filed 08/07/19 Page 17 of 17 PageID 7593

Doc.

Description

ECF No. 205

Q1 Report

ECF No. 207

Transcript of April 23, 2019, Hearing

ECF No. 208

Ninety Day Goals

ECF No. 211

Joint Public Engagement Plan

ECF No. 212

Notice of August 27, 2019, Hearing

ECF No. 213

Sealed Order on Costs of Independent Monitor for May 2019 (June 14, 2019)

ECF No. Sealed Search Terms and Related RFA by

214

the City (July 16, 2019)

ECF No. 215

Order on June 2019 Costs of Independent

48589630.v1
48592676.v1

Pages passim 5, 6, 10 1, 4, 10 1, 10, 11 4, 6, 9
3 4, 9 3

15

Exhibit 1

FOR IMMEDIATE RELEASE Contact: Terri Wiseman (901) 680-7253 Terri.wiseman@butlersnow.com
Independent Monitor Edward L. Stanton III Announces Website Launch and Community Engagement Forum to be held on July 11, 2019
MEMPHIS, Tenn., July 2, 2019 – On Dec. 21, 2018, U.S. District Judge Jon P. McCalla appointed former U.S. Attorney Edward L. Stanton III as the Independent Monitor in litigation between the American Civil Liberties Union – Tennessee and the City of Memphis. The mandate of Stanton and his team of subject-matter experts is to monitor the progress of the city’s compliance with the 1978 Kendrick Consent Decree and to facilitate transparency and accountability to the public. To that end, Stanton and his team today have launched the Independent Monitor’s website, https://www.memphispdmonitor.com. The website includes information about the monitoring team and its reports, court filings, and opportunities for public engagement. The first opportunity will take place at a Community Engagement Forum hosted by the Monitor and his team on July 11, 2019, from 6:00 – 7:30 p.m. at Mississippi Boulevard Christian Church (70 N. Bellevue Blvd., Memphis, TN 38104). This event will provide an opportunity for the Monitor to provide a status report as well as solicit input from the public.
###

FOR IMMEDIATE RELEASE Contact: Terri Wiseman (901) 680-7253 Terri.wiseman@butlersnow.com
Court Appointed Memphis Police Department Monitor Announces Community Engagement Forum on July 11, 2019
MEMPHIS, Tenn., July 11, 2019 –Edward L. Stanton III, Court Appointed Monitor of the Memphis Police Department, invites you to attend a Community Engagement Forum this evening, July 11, 2019, from 6:00 – 7:30 p.m. at the Mississippi Boulevard Christian Church (70 N. Bellevue Blvd., Memphis, TN 38104). The community forum will provide an opportunity for Stanton’s Monitoring Team to update the public on their progress in monitoring the Memphis Police Department’s (MPD) compliance with police surveillance policies and practices as set out in the 1978 Kendrick Consent Decree. On December 21, 2018, U.S. District Judge Jon P. McCalla appointed former U.S. Attorney Stanton as the Independent Monitor over litigation between the American Civil Liberties Union of Tennessee (ACLU) and the City of Memphis. The mandate of Stanton and his team of subject matter experts is to monitor the progress of the city’s compliance with the 1978 Kendrick Consent Decree. The Monitor is also responsible for facilitating transparency and accountability to the public. Attendess to this event will be encouraged to ask questions of the Monitoring Team and provide feedback regarding the MPD’s efforts to comply with the consent decree. For more information, please visit the Independent Monitor’s website at https://www.memphispdmonitor.com.
48420549.v1
###

Exhibit 2
(Redacted - Filed Under Seal)

Exhibit 3
(Partially Redacted - Full Document Filed Under Seal)

Confidential Attorney Work Product

M E M O R A N D U M

To:

The Monitoring Team

From:

Shanell L. Tyler

Date:

June 19, 2019

Subject: City’s Responses to Monitoring Team’s Feedback

OVERVIEW

As you are aware, the Monitoring Team and the ACLU-TN have had the opportunity to review and give feedback on several of the City of Memphis’s policies and procedures that are implicated by the Kendrick Consent Decree. (See ECF Nos. 197, 205.) In addition to offering this feedback, the Team has also responded to the City’s request for recommendations regarding eleven hypothetical scenarios. (See ECF 197-3.)

On June 7, 2019, the City sent the Monitor its latest responses to the Team’s feedback on its revised policies and procedures and the recommendations made in response to the eleven hypotheticals. You have received these materials in an email from me. (See “ACLU v. City of Memphis: City's 6/7/2019 Responses to Monitoring Team's Feedback,” dated 6/14/2019.) Included in my email is a letter from the City’s counsel, Mark Glover, that summarizes the City’s responses to all of the Monitoring Team’s feedback, and there are copies of the City’s revised policies and procedures. Please provide your feedback regarding the same as you did with the prior submissions. The feedback will be reconciled and provided to the Court.

I.

The City’s Proposed Policies and Training Materials

A. Departmental Regulation 138 Political Intelligence (Revised)

Team’s Prior Feedback to City of Memphis
The Team recommended that the definition of First Amendment rights expressly include the right to petition the government. (ECF 197-1, PageID 6853.)

City of Memphis’s Response to Team’s Prior Feedback
Response: The City accepts the recommendation.

City of Memphis’s Proposed Action in Response to Team’s Prior Feedback The City adds the recommended language.

The Team’s Response to the City’s Proposed Action.
Response: The Team agrees.

Recommendation(s)
The Team does not recommend anything further.

June 19, 2019 Page 2

The Team recommended adding language to the fourth paragraph of the policy as follows: “No member shall knowingly, intentionally or recklessly facilitate or cause the interception, recording, transcription of— or otherwise interfere with or cause, any interference with any communications by means of electronic or covert surveillance for the purpose of gathering political intelligence.” (ECF 197-2, PageID 6866)

Response: The City accepts the recommendation.

The City adds the recommended language.

Response: The Team agrees, but it recommends revising this section for clarity.

Team recommends that this statement be revised as follows:
“No member shall knowingly, intentionally, or recklessly facilitate or cause the interception, recording, transcription of— or otherwise interfere with or cause any interference with— any communications by means of electronic or covert surveillance for the purpose of gathering political intelligence.”

The Team recommended revising the second sentence in the fourth paragraph as follows: “No member shall engage in any action or disseminate damaging, derogatory, false or anonymous information about any person which will deprive any individual of their First Amendment Rights; nor will any member encourage, cooperate with, or contract with any local, state, federal or private agency to plan or

Response: The City accepts the recommendation.

The City adds the recommended language.
2

Response: The Team agrees.

The Team does not recommend anything further.

June 19, 2019 Page 3

conduct any investigation involving political intelligence or for the purpose, expectation or anticipation of political intelligence.” (ECF 205, PageID 7078.) The Team recommended that Paragraph 3, which states that “any member conducting or supervising such an investigation must bring the matter to the attention of the Director of Police Services, or his/her designee, for review and written authorization,” have a time limit for notification added – for instance, “…prior to initiating such an investigation, or, where the possibility of such incidental receipt is discovered after an investigation has commenced, no later than [X] days after such discovery.” (ECF 197-1, PageID 6853.) The Team recommended revising the fifth paragraph to include language that investigations into unlawful conduct “that reasonably may be expected to result” incidentally in

Response: The City accepts the recommendation.
Response: The City accepts the Team’s revised recommendation.

The City proposes a time limit of ten days for bringing such an investigation to the attention of the Director or his/her designee.
The City revises paragraph five to track the original language of revised DR 138. “Investigations into unlawful conduct that may incidentally result
3

Response: The Team mostly agrees, but it recommends shortening the time limit for bringing the investigation to the attention of the Director or his/her designee.

The Team recommends that the City establish a time limit of five calendar days.

Rationale: The Team believes that ten days is too long to wait to notify the Director of Police Services or his/her designee.

Response: The Team disagrees.
Rationale: After further consideration, the Team believes the objective “reasonable

Team recommends that the City adopt the “reasonably may be expected to result” language that it previously recommended.

June 19, 2019 Page 4

the receipt of political intelligence require approval, but then the Team revised its recommendation to track the original language in paragraph five. (ECF 205, PageID 7078).

The Team recommended adding language to the fifth paragraph stating, "An extension may be granted in writing by the Director or his/her designee for periods of up to an additional ninety (90) days; and in extraordinary circumstances where warranted, additional 90-day periods as documented and approved by the Director or his Designee."

Response: The City accepts the revised recommendation.

in the receipt of information relating to the First Amendment rights are permissible, but require approval by the Director of Police Services or his/her designee.” The City adds the recommended language.

person” standard should be applied and explicitly stated.
Response: The Team agrees.

The Team does not recommend anything further.

In the First Quarterly Report, however, the Team revised its recommendation as follows: “The Police Director or his / her designee may grant written extensions of the initial ninety (90)-day period of up to 90 days each when such extensions are justified by extraordinary circumstances. For each such extension, the following two
4

June 19, 2019 Page 5

conditions must be satisfied: (1) The Director or his / her designee must consult with the City Attorney or the City Attorney's designee (who must be a lawyer in good standing with the Tennessee Board of Professional Responsibility); and (2) The investigating officer must complete the [Kendrick Consent Form] and state in writing either the persistent facts that establish extraordinary circumstances or new facts that do the same.” (ECF 205, PageID 7078.)

B. Memphis Police Department Political Intelligence Training for the Office of Homeland Security, the Real time Crime Center, and the Command Staff

Team’s Prior Feedback to City of Memphis
The Team recommended that the training plan incorporate the use of hypothetical examples. The Team also recommended that training options include the following: providing a one-

City of Memphis’s Response to Team’s Prior Feedback
Response: The City accepts the recommendation.

City of Memphis’s Proposed Action in Response to Team’s Prior Feedback The City adds four bullet points to the end of the Training Plan to address the Team’s recommendation:
·All training on the Kendrick Consent Decree and its prohibition against political intelligence shall
5

The Team’s Response to the City’s Proposed Action. Response: The Team agrees, but it recommends further revising the plan to include training on First Amendment topics as well.
Rationale:

Recommendation(s)
The Team recommends revising the training plan as follows:
·All training on the First Amendment and the Kendrick Consent Decree and its prohibition against political intelligence shall incorporate the use of hypothetical examples of

June 19, 2019 Page 6

to two-hour block taught by an instructor who prepares a lesson plan and course evaluations; building the training into existing training models; and using short officer training videos, known as video alerts. (ECF 197-1, Page ID 6854.)

incorporate the use of hypothetical examples of permissible and prohibited conduct under the Kendrick Consent Decree.
·Training on the Kendrick Consent Decree shall be provided in blocks anticipated to be one- to two-hours long. The training will be conducted by an instructor with a written lesson plan. After each training session, the participants of the session will submit a course evaluation to the instructor.
·Training on the Kendrick Consent Decree shall also be incorporated into existing training models, such as routine training of police cadets at the Training Academy.
·Training on the Kendrick Consent Decree shall also be conducted via short officer training videos known as video alerts.

The Team believes that it is important for officers to understand First Amendment rights in order to understand what it is and is not permissible under the Kendrick Consent Decree.

permissible and prohibited conduct under the First Amendment and the Kendrick Consent Decree.
·Training on the First Amendment and the Kendrick Consent Decree shall be provided in blocks anticipated to be oneto two-hours long. The training will be conducted by an instructor with a written lesson plan. After each training session, the participants of the session will submit a course evaluation to the instructor.
·Training on the First Amendment and the Kendrick Consent Decree shall also be incorporated into existing training models, such as routine training of police cadets at the Training Academy.
·Training on the First Amendment and the Kendrick Consent Decree shall also be conducted via short officer training videos known as video alerts.

The Team

Response: The City The City adds a 6

Response: The The Team recommends

June 19, 2019 Page 7

recommended adding a requirement that the training be updated annually to track changes in relevant laws and MPD policies. (ECF 197-2, PageID 6869.)

accepts the recommendation.

bullet point to the end of the Training Plan to address the Team’s recommendation.
·Training on the Kendrick Consent Decree shall be updated annually to track changes in relevant laws and MPD policies.

Team agrees, but it recommends further revising the plan to include training on First Amendment topics as well.
Rationale: The Team believes that it is important for officers to understand First Amendment rights in order to understand what it is and is not permissible under the Kendrick Consent Decree.

revising the training plan as follows:
·Training on the First Amendment and the Kendrick Consent Decree shall be updated annually to track changes in relevant laws and MPD policies.

The Team recommended that training be provided to all officers and civilian employees working within or otherwise assigned or detailed to the Memphis Police Department. (ECF 197-1, PageID 6854.)

Response: The City partially accepts the recommendation.
Rationale: While such a training program could be accomplished by use of the regular annual in-service training for officers, the City believes that the immediate training of such additional persons is outside the scope of the Order (ECF 151) listing groups to be trained

The City proposes that within 21 days after approval of the training materials by the Court, the City will begin training sessions for all officers and civilian employees of OHS, RTCC, and Command Staff. MPD will then begin to train all other MPD officers on the prohibitions of the Consent Decree. Due to the

7

Response: The Team disagrees.
Rationale: The Team recognizes the potential logistical problems with the immediate training of all officers; however, it believes that such training is necessary to ensure that the entire police

The Team recommends that the following policy be adopted:
“Within 21 days after approval of the training materials by the Court, the City will begin training sessions for all officers and civilian employees of OHS, RTCC, and Command Staff. The City will make every effort to complete these training sessions as soon as possible, but in no event later than December 31, 2019.

June 19, 2019 Page 8

initially, and would not be possible in a short time frame, particularly the 21 day period suggested by the City in its original submission.

large number of officers (2000+), this training will be done on a rolling basis, with all officers and civilian employees of MPD to complete the training within 12 months.

department complies with the Kendrick Consent Decree. The Team also believes that such training is necessary to ensure that the topics become fully engrained within the entire MPD.

Within 30 days after approval of the training materials by the Court, the City will provide and make available to all other MPD officers and employees a monitorapproved video alert on the First Amendment and the Consent Decree.
MPD will also train all other MPD officers and employees on the Consent Decree. This training may be done on a rolling basis to be completed no later than December 31, 2020.

C. PowerPoint Presentation

Team’s Prior Feedback to City of Memphis

City of Memphis’s Response to Team’s Prior Feedback

The Team recommended adding language to the seventh slide "Harassment and Intimidation Prohibited," stating that a valid law enforcement purpose is required. (ECF 197-1, PageID

Response: The City accepts the Team’s recommendation.

City of Memphis’s Proposed Action in Response to Team’s Prior Feedback The City adds the phrase "Absent a valid law enforcement purpose" to the third and fourth bullets on Slide 7.
8

The Team’s Response to the City’s Proposed Action.
Response: The Team agrees.

Recommendation(s)
The Team does not recommend anything further.

June 19, 2019 Page 9

6855.) The Team recommended "MPD shall not record... for the purpose of chilling the exercise of First Amendment rights or for the purpose of maintaining a record of that gathering, or where such recording will reasonably have the effect of deterring any person from exercising First Amendment rights." (ECF 197-2,Page ID 6870.) The Team recommended updating Slide 4 with the revised DR 138. (ECF 197-2, PageID 6869-6870.) The Team recommended updating PowerPoint to include language about noncollator social media searches. (ECF 197-2, PageID 6871.)

Response: The City accepts the recommendation.
Response: The City accepts the recommendation.
Response: The City accepts the recommendation.

The City incorporates the reasonable effect language to Slide 7.
The City updates as recommended.
The City updates Slide 12, Bullet 1 to include language about non-collator social media searches. "An MPD officer searches a social media collator or platform for all instances..."

Response: The Team agrees.
Response: The Team agrees. Response: The Team agrees.

The Team

Response: The City The City 9

Response: The

The Team does not recommend anything further.
The Team does not recommend anything further. The Team does not recommend anything further.
The Team does not

June 19, 2019 Page 10

recommended revising the language of Slide 14 to provide: “An MPD officer wearing a body camera that has been activated pursuant to MPD policy does not have to cover the camera every time he or she passes...” (ECF 197-2, PageID 6871.) The Team recommended that the City’s examples of community organizers not single out one or two named groups. (ECF 197-2, PageID 6872.)

accepts the recommendation.
Response: The City accepts the recommendation.

includes the language.

Team agrees.

The City removes all references to any particular group in the PowerPoint. Specifically, the City changed all instances of "Black Lives Matter" to "activist group."

Response: The Team agrees.

recommend anything further.
The Team does not recommend anything further.

The Team recommended deleting the language on Slide 14 regarding "kill the police," because any search of that term could incidentally collect information related to First Amendment rights. (ECF 197-2, PageID 6871.)

Response: The City None. declines the recommendation.
Rationale: The City does not agree with the Monitor's recommendation, because the Court used the example "kill police" in its Opinion and Order. (ECF 151.) The Court stated that a police officer who queries a social media collator for the phrase "kill
10

Response: The Team disagrees.
Rationale: The Team believes the First Amendment analysis to be more nuanced than the City’s current position. The Team submits that collecting protected speech and considering its content is permissible so long as it is being done for a valid law

The Team recommends adding language to Slide 14 that states,
“Any use of this information, including its retention and dissemination, is governed by the Consent Decree.”

June 19, 2019 Page 11

police," is not going out of her way to "gather" information related to First Amendment rights, even though her action is definitely investigative in nature.

enforcement purpose, in a manner that does not unduly infringe upon the ability of the speaker to deliver his or her message. In addition, there must be a reasonable relation between the collection and retention of the protected speech and the purpose of the investigation.

D. Guidelines for Delegation of Authority of Director of Police Services to Authorize Investigations That May Interfere with the Exercise of First Amendment Rights under Section G of the Kendrick Consent Decree

Team’s Prior Feedback to City of Memphis

City of Memphis’s Response to Team’s Prior Feedback

The Team recommended adding language to this policy that requires review of each selected designee be made by competent in-house counsel or authorized/assigned counsel (ECF 197-1, PageID 6857.)

Response: The City accepts the recommendation.

City of Memphis’s Proposed Action in Response to Team’s Prior Feedback The City has designates Attorney Zayid Saleem as the appropriate in-house counsel for this role.

The Team’s Response to the City’s Proposed Action.
Response: The Team agrees.

Recommendation(s)
The Team does not recommend anything further.

The Team expressed concern that the volume of these investigations would be too voluminous for the Director to oversee and suggested adding language that the

Response: The City agrees with the recommendation.

The City notes that the policy already provides for the designee's report.
11

Response: The Team agrees.

The Team does not recommend anything further.

June 19, 2019 Page 12

Designee submit a report to the Director. (ECF 197-1, PageID 6857.)

The Team recommended revising the last sentence of the policy to state as follows: "The Director shall have the authority to rescind authorization for any investigation that the Director deems to violate the letter or intent of the department prohibition against the gathering of political intelligence, or in cases in which either the initial, authorized investigative goals or purposes no longer exist; or when political intelligence collection is no longer merely incidental." (ECF 1972, PageID 6873.) The Team recommended changing the temporal reporting requirement to the last Friday of every month that is a regular business day. (ECF 197-2, PageID 6873.)

Response: The City accepts the recommendation.
Response: The City declines the recommendation. Rationale: The City requests that the monthly reporting requirement not fall on a day certain, but rather just "monthly" due to the varying work schedules of those involved.

The City includes this language.
None.

Response: The Team agrees.
Response: The Team disagrees. Rationale: The Team believes that the directive should be specific enough that it’s complied with and that accountability is possible.

The Team does not recommend anything further.
The Team recommends changing the temporal reporting requirement to the last day of the calendar month. If the last day of the month is a weekend or state or federal holiday, the report should be due by the end of the next business day.

E. Authorization for Investigations Which May Incidentally Result in the Collection of Information Related to the Exercise of First Amendment Rights Under Section G
12

June 19, 2019 Page 13

Team’s Prior Feedback to City of Memphis

City of Memphis’s Response to Team’s Prior Feedback

City of Memphis’s Proposed Action in Response to Team’s Prior Feedback

The Team’s Response to the City’s Proposed Action.

Recommendation(s)

The Team recommended that the policy define "situational assessment." (ECF 197-1, PageID 6858.) The Team recommended adding a discussion of whether situational assessment reports should be excluded from the authorization process. (ECF 1971, PageID 6858.)

Response: The City accepts the recommendation.
Response: The City accepts the recommendation.

This definition is included in footnote 2.
The City seeks to clarify this by changing the term "Situational Assessment Report" to "After Action Review." Accordingly, Number 6 is suggested to be revised as follows: "After Action Review (AAR)" is defined as a report following an incident describing the incident and analyzing MPD's preparation for and response or reaction to the incident.

Response: The Team agrees.
Response: The Team agrees.

The Team does not recommend anything further.
The Team does not recommend anything further.

The Team asked for clarification about what policy governs the dissemination of First Amendment information to law enforcement

Response: The City adds language to clarify.

The City adds the following language to the "Dissemination" section:
“If the information collected related to
13

Response: The Team disagrees and recommends additional language.

The Team recommends amending the language as follows:
“If the information collected related to the exercise of First Amendment rights, as a

June 19, 2019 Page 14

referenced in the "Dissemination" section on page 3. (ECF 197-2, PageID 6874.)

the exercise of First Amendment rights as a result of an authorized investigation identifies a threat or potential disruption to a private entity, that information may be shared with the private entity's security and/or other joint law enforcement agencies as reasonably necessary.”

Rationale: The Team believes that the language, as written, is too broad.

result of an authorized investigation, identifies a threat of violence or unlawful activity that poses a substantial risk to public safety of a private entity, that information may be shared with other joint law enforcement agencies pursuant to 28 C.F.R. Pt. 23, or with the private entity's security on a need-to-know basis, with specific justification for the sharing of any information that reveals the identity of an individual person or group or reveals First Amendment-protected activity.”

The Team recommended adding the following note at the end of the "Exclusions" section: “There may be times when an investigation starts out in one of the excluded categories and evolves into something that does not implicate First Amendment rights. Accordingly, officers involved in an investigation should remain vigilant for any changes that would trigger the need for

Response: The City accepts the recommendation.

The City adds the recommended language.
14

Response: The Team agrees.

The Team does not recommend anything further.

June 19, 2019 Page 15

authorization.” (ECF 197-2, PageID 6875.)

N/a

N/a

N/a

N/a

15

The Team recommends adding the language of DR138 that explains the granting of written extensions past the initial ninety (90)-day investigation period. Thus this policy would include the following:
“The Police Director or his/her designee may grant extensions of the initial ninety (90)-day period of up to 90 days each when such extensions are justified by extraordinary circumstances. For each such extension, the following two conditions must be satisfied:
(1.)The Director or his/her designee must consult with the City Attorney or the City Attorney’s designee (who much be a lawyer in good standing with the Tennessee Board of Professional Responsibility); and (2.) The investigating officer must complete [the Kendrick Consent Form] and state in writing either the persistent facts that establish extraordinary circumstances or new facts that do the same.”

June 19, 2019 Page 16

F. Form: Authorization for Investigations That May Incidentally Result in Political Intelligence

Team’s Prior Feedback to City of Memphis
Some members of the Team expressed concern that the ACLUTN's recommendation that the Authorization Form include a separate section for the Director/Designee to list the precautions and techniques to be employed during the investigation to certify that they are the least intrusive means available might involve law enforcement sensitive methods, some of which could be secret or necessarily confidential. (ECF 197-2, PageID 6876.).
The Team revised this recommendation with a request for clarification about the kinds of information that would be provided by the City as

City of Memphis’s Response to Team’s Prior Feedback
Response: The City accepts the prior, unrevised recommendation and responds to the request for clarification.
The City responds to the request for clarification about types of precautions and techniques to be listed.
“An example of a confidential technique that might be used in an investigation is the use of an undercover social media account aimed at accessing the private social media account of a criminal suspect. Another law-enforcement sensitive technique that might be used during an investigation is the use of a courtordered wiretap

City of Memphis’s Proposed Action in Response to Team’s Prior Feedback The City deletes the section for the Director/Designee to list precautions and techniques to be employed during the investigation.
16

The Team’s Response to the City’s Proposed Action.
Response: Some of the Team agrees, but the Team withholds its final recommendation pending a discussion with the ACLU about the ACLU’s concerns.

Recommendation(s)
The Team withholds its final recommendation pending a discussion with ACLU on this topic.

June 19, 2019 Page 17

precautions and techniques. (ECF 205, PageID 7079.)

to monitor the phone calls between known gang members.”

Examples of precautionary techniques include the following: · Instructing the officer(s) conducting the search, after consultation with Atty. Zayid Saleem, to immediately destroy any materials obtained that do not have value in the criminal investigation. · where the search uncovers information pertinent to the criminal investigation but implicating a citizen’s First Amendment rights, limiting the dissemination of that information to MPD “personnel with a need to know”, and that group of recipients would be approved by the Director or his designee. · Using only open source, publicly available
17

June 19, 2019 Page 18

information.

Investigating a

closed account or

use of an

undercover

account requires a

compelling

reason subject to

additional prior

approval by the

Director or his

designees. Once

the investigation

is over, the

undercover

account must

"unfriend" or

"unfollow" the

person being

investigated.

N/a

N/a

N/a

N/a

18

The Team recommends adding the language of DR138 that explains the granting of written extensions past the initial ninety (90)-day investigation period. Thus this policy would include the following:
“The Police Director or his/her designee may grant extensions of the initial ninety (90)-day period of up to 90 days each when such extensions are justified by extraordinary circumstances. For each such extension, the following two conditions must be satisfied:
(1)The Director or

June 19, 2019 Page 19

his/her designee must consult with the City Attorney or the City Attorney’s designee (who much be a lawyer in good standing with the Tennessee Board of Professional Responsibility); and (2)The investigating officer must complete [the Kendrick Consent Form] and state in writing either the persistent facts that establish extraordinary circumstances or new facts that do the same.”
G. Written Guidelines for the use of Manual Social Media Searches and of Social media Collators

Team’s Prior Feedback to City of Memphis

City of Memphis’s Response to Team’s Prior Feedback

The Team agreed with the ACLUTN that the Social Media Policy should apply to all MPD officers. (ECF 197-1, PageID 6860.)

Response: The City accepts the recommendation.

City of Memphis’s Proposed Action in Response to Team’s Prior Feedback The policy applies to all MPD officers.

The Team’s Response to the City’s Proposed Action.
Response: The Team agrees.

Recommendation(s)
The Team does not recommend anything further.

The Team recommended adding the following language regarding when

Response: The City accepts the recommendation.

The City adds the Response: The recommended Team agrees. language.

19

The Team does not recommend anything further.

June 19, 2019 Page 20

the Social Media Guidelines are applicable: “The officer's personal use of the social media platform and any searches conducted for personal reasons are nevertheless subject to this reporting requirement, when: ·The information searched, gathered, collected, stored or disseminated involves, includes, intersects or overlaps with, or otherwise relates to or has direct or derivative use in any investigation, inquiry or matter involving official law enforcement or department interest; and ·The officer has knowledge of such investigation, inquiry, or matter, or should reasonably have such knowledge.” (ECF 197-1, PageID 6860.)

The Team recommended that the

Response: The City accepts the recommendation.

The City revises the section as follows:
20

Response: The Team agrees but recommends

The Team recommends amending the language

June 19, 2019 Page 21
"Documentation and Retention" Section be revised for clarity. (ECF 197-1, PageID 6861.)

“Information gathered from a social media site by MPD related to First Amendment activity shall not be retained, unless for a legitimate law enforcement purpose, for more than thirty days.

amending the language for clarification. The Team also requests clarification about whether MPD has a policy section that generally authorizes audits of an officer’s files?

as follows:
“Unannounced internal audits of an officer's social media searches, etc.”

All social media searches by an MPD officer shall be retained until reported to the Command Staff, which shall occur approximately every 90 days. At the end of each 90-day period, each MPD officer who conducted a search on social media must submit a list of search terms used to search the particular social media platform related to the officer's duties and responsibilities as an officer of the MPD. These reports shall be submitted to the officer's commander.

Unannounced 21

June 19, 2019 Page 22

The Team recommended defining "Special Events." (ECF 197-1, PageID 6862.)

Response: The City accepts the recommendation.

The Team recommended adding a disciplinary requirement in the event of an officer's failure to adhere to the Social Media Policy as well as an auditing procedure. (ECF 197-1, PageID 6863.) The Team recommended that the policy state that an undercover social media account

Response: The City accepts recommendation.
Response: The City accepts the recommendation.

audits of an officer's social media searches are permissible at any time for any reason when authorized by a member of the Command staff.” The City defines "special events" as the following:
"Events, both planned and unplanned, that involves groups of people gathering in public which require the presence and planning of the City and/or MPD officers."
The City revises as requested.

Response: The Team disagrees.
Rationale: The City’s Public Assemblies and Application process uses different terms (special events, spontaneous events, and alternative events) than the proposed definition. This policy should be consistent with the City’s Ordinance. Response: The Team agrees.

The Team recommends revising the definition to be consistent with the City’s Ordinance on public assemblies.
The Team does not recommend anything further.

The City revises as requested.
22

Response: The Team agrees but revises its recommendation.

The Team recommends revising the sentence “Under no circumstances may an officer impersonate an actual person

June 19, 2019 Page 23

may not impersonate an actual person known to the subject of an investigation. (ECF 197-1, PageID 6863.)

The Team recommended that a section regarding Juveniles be added. (ECF 1971, PageID 6863.)

Response: The City accepts the recommendation.

The City adds the following language:
ONLINE MONITORING OF JUVENILES ON SOCIAL MEDIA “Any and all restrictions regarding the monitoring of juveniles included in MPD's practices, policies, or procedures, are incorporated into this Social Media Policy.”

Response: The Team agrees but asks that the City share MPD’s policies relating to juveniles so the Team can see how they would apply in the social media monitoring context.

known to the subject of an investigation through the use of an undercover social media account” to say “Under no circumstances may an officer impersonate an actual person through the use of an undercover social media account.” The Team does not recommend anything further.

The Team recommended clarifying a "situational assessment report" vs. a "situational awareness report." (ECF 197-2, PageID 6879.)

Response: The City accepts the recommendation.

The City revises the policy as follows:
“Situational awareness reports may be prepared for special events management, including First Amendmentprotected activities. At the conclusion of the
23

Response: The Team mostly agrees but recommends that the City adds language to the situational awareness report policy.

The Team submits that any MPD investigation that uses social media as an investigative technique must have a lawful purpose and must not unlawfully infringe the First Amendment Rights of the individual(s) or groups subject to the investigation— meaning, the social

June 19, 2019 Page 24

situation or First Amendmentprotected event that was the catalyst for generation of a situational awareness report, and where there was no criminal activity related to the information gathered, the information obtained from social media or from a social media monitoring tool will be retained for no more than thirty (30) days.
After Action Reviews may be prepared using information gathered from social media. "After Action Review" (AAR) is defined as a report following an incident describing the incident and analyzing MPD's preparation for and response or reaction to the incident. These reviews are aimed at department selfimprovement. The information obtained from social media may
24

media investigation should employ the least intrusive means upon exercise of those First Amendment rights. Further, if the investigation infringes on First Amendment rights, a reasonable rational connection between the collection of information about the individuals or groups and the purpose of the investigation should be documented.

June 19, 2019 Page 25

be retained within the AAR indefinitely, but the names, photos, and identifying information of individuals not suspected of criminal activity must be redacted.”

The City added in a footnote: “situational awareness report is report of intelligence gathered by law enforcement related to public safety surrounding a planned gathering of people in public. The purpose of a situational awareness report is to provide MPD with information so that it can adequately prepare for and protect the public before, during, and after a special event.”

The Team recommended a shorter retention period for information about First Amendment

Response: The City accepts the recommendation.

The City includes Response: The

the following

Team agrees.

language:

“Information gathered from a social media site
25

The Team does not recommend anything further.

June 19, 2019 Page 26

activities. (ECF 197-2, PageID 6879.)
The Team requested clarification as to why the City made the change from allowing First Amendment information gathered on social media to be distributed only to the Command Staff versus "to MPD officers and staff as necessary." (ECF 197-2, PageID 6880.)
The Team recommended that there be audits of an officer’s social media searches. (ECF 197-1, PageID 6863.)
N/a

Response: The City responds to request for clarification.
The City made this change based on the ACLUTN's suggestion. Moreover, the City envisions a situation in which some officer below the level of Command Staff would be required to take an action (such as make an arrest) where access to the information would be critical. Response: The City accepts the recommendation.
N/A

by MPD related to First Amendment activity shall not be retained, unless for a legitimate law enforcement purpose, for more than thirty days.” None.
The City adds the following language to its policy: “Unannounced audits of an officer’s social media searches are permissible at any time for any reason when authorized by a member of the Command Staff.” N/a
26

Response: The Team is satisfied with the explanation.
Response: The Team agrees but recommends amending the language for clarity.
N/a

The Team does not recommend anything further.
The Team recommends amending the language of the policy as follows: “Unannounced internal audits…”
The Team

June 19, 2019 Page 27

N/a

N/a

N/a

N/a

N/a

N/a

N/a

N/a

N/a

N/a

N/a

N/a

27

recommends revising the title of the social media policy, which is currently “Utilizing Social Media for Investigations,” to “Law Enforcement Utilization of Social Media,” because the policy covers more than investigations. The Team recommends changing all instances of “MPD officers” to “MPD employees” in the social media policy. The Team recommends the revising the sentence, “All searches of social media by a MPD officer, through the use of a social media account or social media collator…” to “All searches of social media by an MPD employee, including but not limited to those through the use of a social media collator, shall be based on a valid law enforcement purpose….” On top page four of the social media policy, after the term “shoot the police,” the Team recommends adding a sentence stating, “ However, the use, retention, or dissemination of information collected

June 19, 2019 Page 28

N/a

N/a

N/a

N/a

N/a

N/a

N/a

N/a

N/a

N/a

N/a

N/a

28

by searches that relate to the exercise of First Amendment rights is governed by the Consent Decree.” On page four of the social media policy, the current policy says “Only searches of open-sources (nonprivate) should be used.” The Team recommends revising this to say, “Only searches of open source (non-private) information should be used.” On page five of the social media policy, the current policy states, “Information gathered from a social media site by MPD related to First Amendment activity shall not be retained, unless for a legitimate law enforcement purpose, for thirty days.” The Team recommends shortening this to fourteen days.
The Team also recommends revising the language under situational awareness reports, as stated on page six of the policy, to reflect this fourteen day retention requirement. The Team recommends revising the last two paragraphs on page five of the

June 19, 2019 Page 29

N/a

N/a

N/a

N/a

29

social media policy to clarify the distinction between keeping information for a limited period (currently 30 days) and keeping the searches themselves for up to 90 days. The Team recommends adding language such as, “The terms used by an MPD officer to conduct social media searches shall be retained…” The Team recommends revising the situational awareness reports language as follows:
"Situational awareness reports may be prepared for special events management, including First Amendment-protected activities, where necessary for the furtherance of public safety. Employees preparing such reports must take special care to collect no more information than necessary regarding the exercise of First Amendment-protected rights. Employees should further document that there is a relationship between the incidental collection of information about First Amendment-protected activities and the

June 19, 2019 Page 30

N/a

N/a

N/a

N/a

H. Social Media Search Terms

purpose of the report, which is the protection of public safety. At the conclusion of the situation or First Amendment-protected event … the information obtained from social media or from a social media monitoring tool will be retained for no more than fourteen days.” With respect to After Action Reviews, the Team recommends adding “organization” to the final sentence – so it would say “…the names, photos, and identifying information of individuals and organizations not suspected of criminal activity should be redacted.”

Team’s Prior Feedback to City of Memphis
The Team expressed concerns about the certification process for social media searches by MPD officers. In particular the Team recommended that the MPD certify that each term has

City of Memphis’s Response to Team’s Prior Feedback
Response: The City requests follow-up information.
The City would like clarification as to whether the Team is suggesting a certification be made for each individual search term as it is

City of Memphis’s Proposed Action in Response to Team’s Prior Feedback The City suggests that it maintain the current practice of reporting social media search terms from the limited set of phones as outlined in its pleadings to the Court (OHS, RTCC, General Investigative Unit,
30

The Team’s Response to the City’s Proposed Action. Response: The Team disagrees and requests more information about how many officers outside the officers covered by the policy also use social media

Recommendation(s)
The Team recommends that the City create an internal audit system to ensure compliance.

June 19, 2019 Page 31

a valid law enforcement purpose. (ECF 197-1, PageID 6864.)

occurring in real time, or if a "blanket group certification" be made by each officer when he/she submits his/her search terms quarterly. To this point, the City notes that certifying each search term in real time would be incredibly onerous. The City is also doubtful whether the Court intended that every MPD officer's phone be subject to the social media search term reporting requirement.

Homicide, Sex Crimes, and Command Staff). It also expresses concern that to require all 2000+ officers to submit search terms quarterly would be onerous.

for work.

The Team requested an explanation for the use of the word "protest" as a search term in conjunction with the words "St. Jude" and "marathon." (ECF 197-1, PageID 6864.)

Response: The City responds to request for information.
The City states that those terms were used by Sergeant Eddie Cornwell from the Office of Homeland Security. The searches in question were performed around the time of the marathon to identify anyone who might be preparing to engage in acts threatening the safety of the event.

None. 31

Response: The Team is satisfied with the explanation.

The Team does not recommend anything further.

Exhibit 4
(Redacted - Filed Under Seal)

Exhibit 5
(Partially Redacted - Full Document Filed Under Seal)

BAKER...,DONELSON
BEARMAN,CALDWELL 8c,BERKOWIIL,PC

R. MARK GLOVER Direct Dial: 901.577.2222 Direct Fax: 901.577.0732 E-Mail Address: mglover@bakerdonelson.com

June 7,2019

2000 FIRST TENNESSEE B UILDING 165 MADISON AVENUE MEMPHIS, TENNESSEE 38103
PHONE: 901.526.2000 FAX: 901.577.2303
www.bakerdonelson.com

Ed Stanton Butler Snow 6075 Poplar Avenue, Suite 500 Memphis, TN 38119 Edward.stanton@budersnow.com
Re: Blanchard/ACLU-TN v. City ofMemphis Summary ofsuggested changes to be made in City's proposed policies in accordance with the Monitor's suggestions and analysis ofthe eleven scenarios
Ed,
This letter outlines the City's suggested amendments to its proposed policies and training materials made in an attempt to address the issues raised in your Interim Report of Independent Monitor(ECF No. 197)filed with the Court on April 5,2019,and in your First Quarterly Report ofIndependent Monitor(ECF No. 205)("May 2 Report"). This letter also addresses the eleven scenarios posed to you by the City, and the City's response to the Monitoring Team's comments regarding those scenarios.
The Court anticipated that the parties and the Monitoring team would continue to work together to narrow the number ofissues that can be agreed upon before bringing any unresolved issues to the Court. Below is a summary of your recommendations and the City's suggestions concerning revisions in response to each recommendation. We would appreciate your review and comments.
I. The City's Proposed Policies and Training Materials
A. DR 138
You recommended adding language to the definition of First Amendment rights to expressly include the right to petition the government. The City has made that change.

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June 7,2019 Page 2
You also recommended adding language to the fourth paragraph to state as follows:"No member shall knowingly, intentionally or recklessly facilitate or cause the interception, recording, transcription of— or otherwise interfere with or cause, any interference with any communications by means of electronic or covert surveillance for the purpose of gathering political intelligence." Additionally, you recommended adding the phrase "or conduct any investigation involving political intelligence or for the purpose, expectation or anticipation of political intelligence'to the last sentence ofthe fourth paragraph. The City has now added that language.
You further recommended adding language to Paragraph 5, which states that "any member conducting or supervising such an investigation must bring the matter to the attention of the Director ofPolice Services,or his/her designee,for review and written authorization," have a time limit for notification added — for instance, "...prior to initiating such an investigation, or, where the possibility of such incidental receipt is discovered after an investigation has commenced,no later than[X]days after such discovery." The City has accepted that suggestion and proposed a time limit of ten days for bringing such an investigation to the attention of the Director or his/her designee.
You further recommended revising the fifth paragraph to include the language that investigations into unlawful conduct "that reasonably may be expected to result" incidentally in the receipt of political intelligence require approval, but then revised it back to its original language in the May 2, 2019 First Quarterly Report of Independent Monitor (ECF No. 205, PagelD 7078). The phrase now reads: "Investigations into unlawful conduct that may incidentally result in the receipt of information relating to First Amendment rights are permissible, but require approval by the Director ofPolice Services or his/her designee."
You also suggested adding language to the last sentence of the fifth paragraph that explains:"An extension may be granted in writing by the Director or his/her designee for periods of up to an additional ninety (90) days; and in extraordinary circumstances where warranted, additional 90-day periods as documented and approved by the Director or his Designee." The City has made those revisions. In the May 2 Report, however, you asked that the City revise the last sentence to read as follows:
The Police Director or his / her designee may grant written extensions of the initial ninety (90)-day period of up to 90 days each when such extensions are justified by extraordinary circumstances. For each such extension, the following two conditions must be satisfied:
(1) The Director or his / her designee must consult with the City Attorney or the City Attorney's designee (who must be a lawyer in good standing with the Tennessee Board ofProfessional Responsibility); and
(2) The investigating officer must complete the [Kendrick Consent Form] and state in writing either the persistent facts that establish extraordinary circumstances or new facts that do the same.

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The City has made those changes.
B. Training Plan
You recommended that the Training Plan incorporate the use of hypothetical examples. You also recommended that training options include the following: providing a one- to two-hour block taught by an instructor who prepares a lesson plan and course evaluations; building the training into existing training models; and using short officer training videos, known as video alerts.
You further recommended adding a requirement that the training be updated annually to track changes in relevant laws and MPD policies.
The City has attempted to incorporate your suggested language into various sections of the Training Plan, including adding several bullet points to the end of the training plan as follows:
• All training on the Kendrick Consent Decree and its prohibition against political intelligence shall incorporate the use of hypothetical examples of permissible and prohibited conduct under the Kendrick Consent Decree.
• Training on the Kendrick Consent Decree shall be provided in blocks anticipated to be one- to two-hours long. The training will be conducted by an instructor with a written lesson plan. After each training session, the participants ofthe session will submit a course evaluation to the instructor.
• Training on the Kendrick Consent Decree shall also be incorporated into existing training models, such as routine training of police cadets at the Training Academy.
• Training on the Kendrick Consent Decree shall also be conducted via short officer training videos known as video alerts.
• Training on the Kendrick Consent Decree shall be updated annually to track changes in relevant laws and MPD policies.
You also recommended that training be provided to all officers and civilian employees working within or otherwise assigned or detailed to the Memphis Police Department. In creating the initial Training Plan, the City followed the Court's guidance in its Opinion and Order [151], which states in part that:
"the City shall design training for members of OHS, RTCC, and MPD's Command Staff. The new training shall define "political intelligence" ...No officer may be assigned to RTCC or OHS or be promoted to the Command Staff without receiving this training"[ECF No. 151.Page IDs 6273-73]

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When the City submitted the City's Training Plan to the Court, it was anticipated that the groups listed in the Court's Order were the groups to receive the intensive training, and not all 2,000 officers of MPD. For that reason, the City suggested that it could implement that training within 21 days of the Court's approval of the final materials constituting the training program. While such a training program could be accomplished by use of the regular annual in-service training for officers, the City believes that the immediate training of such additional persons is outside the scope ofthe Order listing groups to be trained initially, and would not be possible in such a short time frame, particularly the 21 day period suggested by the City in its original submission. The City, of course, is happy to discuss this issue with you and your Team, and is confident that we can arrive at an agreeable timeframe and procedure for training the bulk of MPD's 2000+ officers.
In the interim,the City has revised the proposed Training Plan to state as follows:
Within 21 days after approval of the training materials by the Court, the City will begin training sessions for all officers and civilian employees ofOHS,RTCC,and Command Staff.
MPD will then begin to train all other MPD officers on the prohibitions of the Consent Decree. Due to the large number of officers (2000+), this training will be done on a rolling basis, with all officers and civilian employees of MPD to complete the training within 12 months.
C. Training PowerPoint
You recommended adding language to the seventh slide "Harassment and Intimidation Prohibited," stating that a valid law enforcement purpose is required. In response,the City added the phrase "Absent a valid law enforcement purpose"to the third and fourth bullets on Slide 7.
The City also made the following changes suggested by the Monitor to the PowerPoint:
• Incorporated the "reasonable effect" language on Slide 7: "MPD shall not record... for the purpose of chilling the exercise of First Amendment rights or for the purpose of maintaining a record of that gathering, or where such recording will reasonably have the effect of deterring any person from exercising First Amendment rights."
• Updated Slide 4 with the updated DR 138.
• Updated Slide 12, Bullet 1 to include language about non-collator social media searches. "An MPD officer searches a social media collator or platform for all instances..."

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• Revised the language of Slide 14 to provide: "An MPD officer wearing a body camera that has been activated pursuant to MPD policy does not have to cover the camera...."
• Removed all references to any particular group in the PowerPoint. The City changed all instances of"Black Lives Matter" to "activist group." In the May 2 Report, you noted that "the Team recommends that the City's examples not single out one or two named groups, because it may be interpreted to limit the scope of this prohibition, which applies to any assembly or group of individuals whose purpose is to exercise rights protected by the First Amendment and the Consent Decree." Please let us know if the City's use of the term "activist group" in its examples satisfies this latest point ofconcern.
You also recommended deleting the language on Slide 14 regarding "kill the police," because any search of that term could incidentally collect information related to First Amendment rights. The City does not agree with the Monitor's recommendation because the Court used the example "kill police" in its Opinion and Order. It stated:
Similarly, a police officer who queries a social media collator for the phrase "kill police," is not going out of her way to "gather" information related to First Amendment rights, even though her action is definitely investigative in nature. If her search returns information related to a lawful assembly titled "Do Not Kill Police," her action does not become political intelligence because First Amendment rights were not the focus or subject of her investigative activity. In other words,she inadvertently discovered information related to First Amendment rights, but she was not "gathering" it. On the other hand, an officer who searches for "Black Lives Matter" gathers information related to First Amendment rights, because political beliefs are the subject of his investigative activity. A discovery of a potential criminal act in that search does not change the fact that the information he was gathering related to First Amendment rights. [ECF No. 151. Page ID 6257].
For that reason,the City has not deleted the "kill the police" discussion from Slide 14,but welcomes discussion on the topic with the Monitoring Team.
D. Guidelines for Delegation of Authority of Director ofPolice Services to Authorize Investigations
You recommended adding language to this policy that requires review of each selected designee be made by competent in-house counsel or authorized/assigned counsel. The City has designated Zayid Saleem as the appropriate in-house counsel for this role, assuming this is agreeable to you as Monitor.
You also expressed concern that the volume of these investigations would be too voluminous for the Director to oversee and suggested adding language that the Designee submit

June 7,2019 Page 6
a report to the Director. The City agrees with the Monitor on this point, but notes that the policy already provides for the designee's report.
You further recommended revising the last sentence of the policy to state as follows: "The Director shall have the authority to rescind authorization for any investigation that the Director deems to violate the letter or intent of the department prohibition against the gathering of political intelligence, or in cases in which either the initial, authorized investigative goals or purposes no longer exist; or when political intelligence collection is no longer merely incidental." The City has made that revision.
You suggested changing the temporal reporting requirement to the last Friday of every month that is a regular business day. The City has respectfully requested that the monthly reporting requirement not fall on a day certain, but rather just"monthly" due to the varying work schedules ofthose involved.
E. Authorization for Investigations Which May Incidentally Result in the Collection ofInformation Related to the Exercise ofFirst Amendment Rights Under Section G
You recommended that the policy define "situational assessment." This definition is included in footnote 2. You further recommended adding a discussion of whether situational assessment reports should be excluded from the authorization process. The City seeks to clarify this by changing the term "Situational Assessment Report" to "After Action Review." Accordingly,Number 6 is suggested to be revised as follows:
"After Action Review (AAR)" is defined as a report following an incident describing the incident and analyzing MPD's preparation for and response or reaction to the incident.
You also asked what policy governs the dissemination of Frist Amendment information to law enforcement referenced in the "Dissemination" section. The City added the following language to the "Dissemination" section:
Ifthe information collected related to the exercise of First Amendment rights as a result of an authorized investigation identifies a threat or potential disruption to a private entity, that information may be shared with the private entity's security and/or other joint law enforcement agencies as reasonably necessary.
While we are willing to discuss and adjust this language, the purpose is to allow MPD to alert a private entity ofthreats, so as to minimize risk to the entity and the public.
You further recommended adding the following note at the end of the "Exclusions" section:
There may be times when an investigation starts out in one of the excluded categories and evolves into something that does not implicate First Amendment

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rights. Accordingly, officers involved in an investigation should remain vigilant for any changes that would trigger the need for authorization.
This change has been made.
F. Authorization Form
You expressed concern that the ACLU-TN's recommendation that the Authorization Form include a separate section for the Director/Designee to list the precautions and techniques to be employed during the investigation to certify that they are the least intrusive means available might involve law enforcement sensitive methods, some of which could be secret or necessarily confidential. Based on your comments,the City deleted that section; however,I am sure that the ACLU-TN would like to be heard on this issue. In the May 2 Report, you asked for clarification about the kinds ofinformation that would be provided by the City as precautions and techniques. An example of a confidential technique that might be used in an investigation is the use of an undercover social media account aimed at accessing the private social media account of a criminal suspect. Another law-enforcement sensitive technique that might be used during an investigation is the use of a court-ordered wiretap to monitor the phone calls between known gang members.
Additionally, the City is very concerned that these Authorization Forms will be subject to open records requests pursuant to the Tennessee Public Records Act. The City is willing to address this issue with the Court if the ACLU-TN insists on the change, but welcomes guidance from the Monitoring Team.
G. Social Media Policy
Your Team made several suggested revisions to the Social Media Policy. First, you agreed with the ACLU-TN that the Social Media Policy should apply to all MPD officers.
You further suggested adding the following language regarding when the Social Media Guidelines are applicable:
The officer's personal use of the social media platform and any searches conducted for personal reasons are nevertheless subject to this reporting requirement, when:
• The information searched, gathered, collected, stored or disseminated involves, includes, intersects or overlaps with, or otherwise relates to or has direct or derivative use in any investigation, inquiry or matter involving official law enforcement or department interest; and
• The officer has knowledge of such investigation, inquiry, or matter, or should reasonably have such knowledge.

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You also recommended that the "Documentation and Retention" Section be revised for clarity. The City revised the section to state:
Information gathered from a social media site by MPD related to First Amendment activity shall not be retained, unless for a legitimate law enforcement purpose,for more than thirty days.
All social media searches by an MPD officer shall be retained until reported to the Command Staff, which shall occur approximately every 90 days. At the end of each 90-day period, each MPD officer who conducted a search on social media must submit a list of search terms used to search the particular social media platform related to the officer's duties and responsibilities as an officer of the MPD. These reports shall be submitted to the officer's commander.
Unannounced audits of an officer's social media searches are permissible at any time for any reason when authorized by a member ofthe Command staff.
You also recommended defining "Special Events." The City defined "special events" as: "events, both planned and unplanned, that involve groups of people gathering in public which require the presence and planning ofthe City and/or MPD officers."
You further recommended adding a disciplinary requirement for an officer's failure to adhere to the Social Media Policy as well as an auditing procedure. You also recommended that the policy state that an undercover social media account may not impersonate an actual person known to be the subject ofan investigation. The City has made those additions.
You also requested that a section regarding Juveniles be added. To that end, the City added the following language:
ONLINE MONITORING OF JUVENILES ON SOCIAL MEDIA
Any and all restrictions regarding the monitoring ofjuveniles included in MPD's practices, policies, or procedures, are incorporated into this Social Media Policy.
You further suggested clarifying a "situational assessment report" vs. a "situational awareness report." The City revised the policy as follows:
Situational awareness reports1 may be prepared for special events management, including First Amendment-protected activities. At the conclusion ofthe situation or First Amendment-protected event that was the catalyst for generation of a situational awareness report, and where there was no criminal activity related to
1 A situational awareness report is report ofintelligence gathered by law enforcement related to public safety surrounding a planned gathering ofpeople in public. The purpose ofa situational awareness report is to provide MPD with information so that it can adequately prepare for and protect the public before, during, and after a special event.

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the information gathered, the infottnation obtained from social media or from a social media monitoring tool will be retained for no more than thirty(30)days.
After Action Reviews may be prepared using information gathered from social media."After Action Review"(AAR)is defined as a report following an incident describing the incident and analyzing MPD's preparation for and response or reaction to the incident. These reviews are aimed at department self-improvement. The information obtained from social media may be retained within the AAR indefinitely, but the names,photos, and identifying information ofindividuals not suspected ofcriminal activity must be redacted.
You also recommended a shorter retention period for information about First Amendment activities. To address that concern,the City included the following language:
Infottnation gathered from a social media site by MPD related to First Amendment activity shall not be retained, unless for a legitimate law enforcement purpose,for more than thirty days.
The Monitoring Team requested clarification as to why the City made the change from allowing First Amendment information gathered on social media to be distributed only to the Command Staff versus "to MPD officers and staff as necessary." We made this change based on the ACLU-TN's suggestion. Moreover, we can envision a situation in which some officer below the level of Command Staff would be required to take an action (such as make an arrest) where access to the information would be critical.
H. Social Media Search Terms
You expressed concerned about the certification process for social media searches by MPD officers. Your report stated:
The filing certifies that none of the names searched for were "associated with a protest or other scenario in which First Amendment rights were being exercised." Each search must also have a valid law enforcement purpose, however. The current certification is important but not sufficient; the Monitoring Team recommends that for future search term productions, the police department also certify that each search had a valid law enforcement purpose. The Monitoring Team also recommends that the police department certify that each search term produced in this submission had a valid law enforcement purpose; if that certification is not possible, the Monitoring Team recommends that the department provide an explanation.
The Monitoring Team also recommends that the department provide an explanation for the use ofthe word "protest" as a search term in conjunction with the words "St. Jude" and "marathon."

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It is unclear to us whether you are suggesting a certification be made for each individual search term as it is occurring in real time, or if a "blanket group certification" be made by each officer when he/she submits his/her search terms quarterly. Certifying each search term in real time would be incredibly onerous. It is also unclear if the Court intended that every MPD officer's phone be subject to the social media search term reporting requirement.
The City suggests that it maintain the current practice of reporting social media search terms from the limited set of phones as outlined in its pleadings to the Court (OHS, RTCC, General Investigative Unit, Homicide, Sex Crimes, and Command Staff). If the Court intended that every officer's phone be subject to this search term reporting requirement, then the City submits that while it can technically require all 2000+ officers to submit search terms quarterly, it would be untenable, extremely burdensome, and a costly waste of police resources. We welcome the Monitor's thoughts on this and hope we can reach a workable process.
Regarding your request for more information about the use of the word "protest" as a search term in conjunction with the words "St. Jude" and "marathon," those terms were used by Sergeant Eddie Cornwell from the Office of Homeland Security. The searches in question were performed around the time ofthe marathon to identify anyone who might be preparing to engage in acts threatening the safety ofthe event. The City believes that such a search is appropriate and allowed under the Court's Opinion and Order [151], because it was not done for the purpose of gathering information related to First Amendment rights, but rather for the valid law enforcement purpose ofprotecting public safety.See ECF No 151,Page ID 6257-6258. The Boston Marathon terrorist bombing is certainly a part ofthe backdrop for that search.
Attached are redlined versions of the policies discussed that show the changes the City made.
The Eleven Scenarios
The City has attempted to adopt your suggestions regarding the eleven scenarios into its policies and procedures so that it can be in compliance with the Consent Decree and the Court's Orders. After a full analysis of your Team's comments, however, in some instances, the City notes that it agrees with the Monitoring Team that several of the scenarios could technically violate the Consent Decree. The City welcomes your feedback on those issues, but intends to present those scenarios to the Court for immediate guidance.
For ease of reference, we have included here a complete summary of the hypotheticals, the City's initial analysis, the Monitoring Team's comments on each scenario, and a proposed plan of action based on your Team's comments.
Regarding Scenario No. 1, i.e. whether officers may leave their body cameras on even though the cameras are filming First Amendment activity, the Court explained that MPD's mere collection or receiving of information does not violate the Consent Decree. "The intent relevant to the definition of political intelligence is whether police activities are 'investigative.'"(ECF No. 151,PagelD 6256.)

Exhibit 6

DRAFT – July 22, 2019
Police department policies regarding use of social media for investigative purposes and situational assessment

Police department
Annapolis, MD

Title & link to policy
General Order: Social Media Policy (2014) https://www.anna polis.gov/Docum entCenter/View/4 865/I-11-SocialMedia-Policy-July2014-PDF

Approved uses for social media (other than publicfacing use) & requirements for use in investigations “Social media is a valuable investigative tool when seeking evidence or information about:
a. Missing persons b. Wanted persons c. Gang participation d. Crimes perpetrated
online (i.e., cyberbullying, cyberstalking); and e. Photos or videos of a crime posted by a participant or observer.”

Prohibitions on use of social media

Specific rules for situational assessment/ awareness or other noninvestigative efforts?

Authorization required for noncovert uses?

Specific language on undercover/covert activity?

Language governing use Discussion of

of personal device or

constitutional

account?

rights?

Use of personally owned devices in the course of official duties is prohibited without “express permission.”

Austin, TX

Social Media for Official Use (Lexipol 2017) https://www.austi ntexas.gov/sites/d efault/files/files/ Current_APD_Pol icy_Manual_20171.5_issued_7-202017.pdf

No additional guidance regarding investigative use. Social media may only be used for a valid law enforcement purpose: 1. Pre-employment
background investigations; 2. Crime analysis & situational assessment reports; 3. Criminal intelligence development; or 4. Criminal investigations.

Specifically, employees may only use social media to seek or retain information that:
• Is based on a criminal predicate or threat to public safety, or
• Is based on reasonable suspicion that an identifiable individual or organization: o Has committed identifiable criminal

Social media may not be used to seek or retain information about:
• Individuals or organizations solely on the basis of religion, political association, social views or activities;
• Individual’s participation in particular noncriminal organization or lawful event;
• Individual’s race, ethnicity, citizenship, place of origin, disability, gender, or sexual orientation, unless relevant to individual’s criminal conduct or activity or if required for identification;
• Individual’s age,

Crime analysis & situational assessment reports may be used for “special events management, including First Amendmentprotected activities.” If no related criminal activity, social media info must be deleted within 14 days.

No authorization required for “general research, topical information, or other law enforcement uses that do not require” an online alias.

Use of an online alias requires:
• Criminal predicate or threat to public safety, or
• Reasonable suspicion that an identifiable individual or organization has committed a crime or is involved in or is planning criminal conduct or activity that presents a threat to an individual, the community, or the nation, and the information is relevant to the criminal conduct or activity.

Employees must get approval from supervisor to use online alias, based on evaluation of whether online alias would serve valid law enforcement purpose. Policy sets out specific approval process, and requires deconfliction through the local fusion center (Austin Regional Intelligence Center).

All approved undercover activity

1

offense or is involved in criminal conduct or activity presenting a threat to an individual, the community, or the nation, and the information is relevant to the criminal conduct or activity, or • Is relevant to the investigation & prosecution of suspected criminal incidents, resulting justice system response, enforcement of sanctions, orders, or sentences, or the prevention of crime; or • Is useful in crime analysis or situational assessment reports for administration of criminal justice & public safety.
[Note: in the written policy, the last two bullet points are inserted under the second, referring to an identifiable individual, but that doesn’t make sense and doesn’t track with how the identical language appears in other policies.]
Social media info will be evaluated for source reliability and content validity.

other than to determine if person is a minor.

Baltimore, MD

Order: Social Media (2016) https://www.balti morepolice.org/60 4-social-media

When it’s believed that social media would assist in an ongoing investigation or intelligence collection effort, the chief of the criminal investigation division must consult with the MRS [?] director.

No additional guidance on use for investigative purposes.

DRAFT – July 22, 2019

requests must be reviewed at least every 90 days by a supervisor, and will be discontinued if the activity does not provide information regarding a valid law enforcement purpose.
Employees with approved online alias can use it to “make false representations in concealment of personal identity in order to establish social media accounts.”
Note that online undercover activity = interaction with person online (not just surveillance/monitoring from afar). May only undertake online undercover operations “when there is reason to believe that criminal offenses have been, will be, or are being committed (e.g., internet chat rooms where child exploitation occurs).”

“It may be appropriate for members to use non-official BPD social media accounts in the course of a legitimate criminal investigation, or in the course of intelligence collection efforts, related to public safety or potential criminal activity.”
The police commissioner must approve in writing the use of nonofficial BPD social media accounts
2

Champaign, IL

Use of Social Media (2012) https://champaig nil.gov/police/ab out-us/policiesand-procedures/

“Social media is a valuable investigative tool when seeking evidence or information about:
f. Missing persons g. Wanted persons h. Gang participation i. Crimes perpetrated
online (i.e., cyberbullying, cyberstalking); and j. Photos or videos of a crime posted by a participant or observer.”

No further guidance regarding use for investigative activity.

Cincinnati, OH

Social Media (2013) https://www.cinci nnatioh.gov/police/ass ets/File/Procedur es/14205.pdf Real Time Crime Center Information Requests (2012): https://www.cinci nnatioh.gov/police/ass ets/File/Procedur es/14210.pdf Note: the PD’s policy references a City of Cincinnati

Introduction states that “social media provides a new and potentially valuable means of assisting the Department and its personnel” in various objectives, including investigative.
No specific language governing investigative use.

DRAFT – July 22, 2019

by investigative units, who must keep a log of all postings. Acceptable uses “for legitimate law enforcement purposes includes a member creating and/or using a fictitious social media account, user profile, avatar or similar form of online identification.”
(Note: it’s not clear from the policy whether “non-official BPD social media account” is the same as a fictitious account.)

Only people authorized by section/bureau commander may post on social media sites in covert capacity.
(Note: the RTCC’s policy states the same thing: “No Department member will engage in covert data mining without the consent of his/her commander. This includes using covert accounts on social media.”

Use of personally owned devices to conduct official duties is prohibited without prior approval. Personnel may never conduct covert social media investigations from privately owned devices.

Individuals acting in covert capacity must use designated computers/devices, and may not use privately owned devices.

3

DRAFT – July 22, 2019

Administrative Rule No. 59 on Social Media, but I haven’t been able to locate it.

With respect to impersonation, personnel “may not take on the identity or use the personal information or likeness/photograph of another without that person’s consent.”

Delaware Valley Intelligence Center (DVIC or PPD/DVIC – the fusion center under the Philadelphia police department)

Guidelines for the Use of Social Media by the PPD/DVIC (2015) https://www.muc krock.com/foi/ph iladelphia211/philadelphiapd-social-mediasurveillance23628/#file84574 Note: portions of the policy are redacted. The policy begins on page 17 of the documented embedded at the link.

PPD/DVIC personnel can use social media “for a valid law enforcement purpose” – specifically: 1. Crime analysis &
situational assessment reports; 2. Criminal intelligence development; 3. Criminal investigations; and 4. Public safety.
Employees may only use social media to seek or retain information that:
1. Is based upon a criminal predicate or threat to public safety; or
2. Is based upon reasonable suspicion that an identifiable individual or organization has committed a crime or is involved in or is planning criminal conduct or activity that poses a threat to an individual, the community, or the nation, and the information is relevant to the criminal conduct or activity; or
3. Is relevant to investigation & prosecution of suspected crimes, the resulting justice system response, the enforcement of

Social media may not be used to seek or retain information about:
• Individuals or organizations solely on the basis of religion, political association, social views or activities;
• Individual’s participation in particular noncriminal organization or lawful event;
• Individual’s race, ethnicity, citizenship, place of origin, disability, gender, or sexual orientation, unless relevant to individual’s criminal conduct or activity or if required for identification;
• Individual’s age, other than to determine if person is a minor.

A section on Documentation and Retention notes that “crime analysis and situational assessment reports may be prepared for special events management, including First Amendmentprotected activities.” A subsequent portion of that section is redacted.

No authorization needed for “general research, topical information or other law enforcement uses” in the public domain. Entire remainder of section of policy titled “Authorization to Access Social Media Websites,” which covers “the authorization necessary to utilize social media and access social media websites for crime analysis and situational awareness or assessment reports; intelligence development; and criminal investigations” is redacted.

“Given the ease with which information can be gathered from public internet searches, tracking services, and other computer analytic technology, the use of employee’s personal or family internet accounts, social media or internet service for official PPD/DVIC business is prohibited.”

4

sanctions, orders, or sentences, or the prevention of crime; or 4. Is useful in crime analysis or situational assessment reports for the administration of criminal justice and public safety.

Note that the policy also addresses the use of social media monitoring tools – that language is not included here, as the MPD has represented that they are no longer using collators.

Denver, CO

Social Media (approx. 2018) https://www.denv ergov.org/content /dam/denvergov/ Portals/720/docu ments/Operations Manual/OMSBoo k/OM_Book.pdf

“Social media assists the department in meeting community outreach, problem-solving, investigations, and crime prevention objectives. Additionally, social media is a valuable tool when seeking evidence or information regarding missing persons, wanted persons, gang activity, crimes perpetuated online and/or photographs or videos of a crime to assist in case solvability.”

The policy has little additional specific information or guidance; most of the policy is focused on public-facing use, and it appears that even for investigations, primarily what’s contemplated is finding information about potential suspects that could be posted as leads to the department’s social media account. Note that it does envision the use of personal accounts for investigations.

El Paso County Investigative Use No guidance on how social

DRAFT – July 22, 2019
No supervisory 5

“Investigative units may use non-official social media accounts for investigative purposes with the written permission of the Chief of Police.”
If an officer finds

Sheriff’s Office

of Social Media and Internet Sources (Lexipol, 2019) http://shr.elpasoc o.com/sites/defau lt/files/assets/Do cuments/Policy/3 00/334_Social_M edia.pdf

media may be used for investigative purposes.

Gaithersburg, MD
Los Angeles

General Order: Social Media (2011) http://apps.gaithe rsburgmd.gov/gen eral_orders/1202_ 1_Social_Media.p df

Introduction states that “social media provides a new and potentially valuable means of assisting the Department and its personnel” in various objectives, including investigative.

Policy states that “Social media can be a valuable investigative tool when seeking evidence or information about:
a. Missing persons b. Wanted persons c. Gang participation d. Crimes perpetrated
online (i.e., cyberbullying, cyberstalking); and e. Photos or videos of a crime posted by a participant or observer.”

No further language governing investigative use.

Social Media User Social media may be used for

DRAFT – July 22, 2019
approval required to access information that doesn’t require an account, password, email address, alias, etc. (eg, publicly available Tweets), when used for “legitimate investigative purposes.”
Supervisory approval required when accessing information from an internet source that requires an account, password, email address, alias, etc.

information relevant to a criminal investigation while off-duty or using his or her own equipment, he or she should “note the dates, times, and locations of the information and report the discovery to his/her supervisor as soon as practicable.” Someone should then “attempt to replicate the finding when on-duty and using department equipment.”

A Fictitious Online Persona (FOP) is a “Department personnel First 6

(LAPD)

Guide (2015) http://michaelkoh lhaas.org/wp/201 9/04/22/presenti ng-copies-of-lapdsocial-mediapolicies-andguidelinesincludingcomprehensivehandbookpromulgated-in2015-by-charliebeck-explaininghow-to-use-socialmedia-ininvestigations/ Note that there is also a set of Intelligence Guidelines for Major Crimes Division, AntiTerrorism Intelligence Section (2012). I did not include information from those here, since they apply only to terrorism investigations, not criminal investigations.

“listening”: “reviewing social media for items of importance.”
Three primary recognized uses of social media: 1. Situational awareness:
“passive and active searching for information impacting operations.” 2. Investigations: use of social media to collect evidence for criminal case. SM use can be covert and/or clandestine. 3. Community relations and engagement.

Lower Merion Township, PA

General Order: Social Media (2014) https://www.lowe rmerion.org/home /showdocument?i

“Social media provides a potentially valuable means of assisting the Department and its personnel” in meeting various objectives, including investigative.

DRAFT – July 22, 2019

“fictitious identity created on the Internet.” Online Investigative Activity (OIA) is the use of a FOP to “engage in investigative activity.” Use of FOPs to look at trends & tactics or to conduct research does not constitute Online Investigative Activity. Online Undercover Activity (OUA) involves using a FOP to “engage in ongoing interactive communication existing over the Internet with an identified person or group” in relation to an ongoing investigation.

may use personal equipment to access information via social media sites when performing an authorized law enforcement mission with prior approval from the employee’s commanding officer.”

The policy sets out a process for obtaining approval from a commanding officer to use a FOP or conduct OUA. It does not set a time limit on use of FOPs or require a review at set intervals.

Amendment: Social media sites are primarily a platform for expression, & the department recognizes this right. Employees shouldn’t interfere with rights to free speech, except for nonconstitutionally protected speech (eg, bomb threats), and may not act as agent provocateurs.
Fourth Amendment: employees should comply with Fourth Amendment protections re: passwordprotected or otherwise private social media sites or forums. Case law is still developing. Many posts are public, but employees must be mindful of both legal issues & community expectations.

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New York Police Department (NYPD)

d=15012

Policy adds that “social media is a valuable investigative tool when seeking evidence or information about missing, wanted or endangered persons, gang participation, crimes perpetrated online (i.e., cyber bullying, cyber stalking) and photographs or videos of a crime posted by a participant or an observer.”

No additional language governing use for investigative purposes.

Use of Social Networks for Investigative Purposes – General Procedure (2012) https://assets.doc umentcloud.org/d ocuments/150788 1/responsivedocuments.pdf; Revised Handschu Guidelines for Investigations Involving Political Activity (2017) https://www.aclu. org/legaldocument/raza-vcity-new-yorkexhibit-orderapprovingstipulationsettlementrevised-handschu

“Data contained within social network sites may assist law enforcement in gathering timely information in furtherance of crime prevention, preservation of public order, and the investigation of criminal activity, including suspected terrorist activity.”

Under the Handschu decree, any NYPD investigation involving political activity must be initiated by and under the supervision of the Intelligence Division. Members “shall not conduct investigations on social networks involving political activity without the express written approval of the Deputy Commissioner, Intelligence.”

DRAFT – July 22, 2019

“No prior authorization is ever required for information contained on publicly available internet sources.”

Where an online alias would serve an investigative purpose (other than suspected terrorist activity), policy sets out a process for obtaining approval from commanding officer with notice to bureau chief/deputy commissioner.

“No conferral or authorization is required for general research, topical information or other general uses that do not require the acquisition of an online alias/online alias access.”

Where application for an online alias involves suspected terrorist activity, the Intelligence Division must be notified and given a chance to take over the investigation.

Because of ease of gathering information from an internet search, NYPD recommends that members not use “personal, family, or other non-Department Internet accounts or ISP access for Department business.”

The Handschu guidelines further state that the department “is authorized to carry out general topical research, including conducting online searches and accessing online sites and forums as part of such research on the same terms and conditions as members of the

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Pasadena, CA

Investigative Use of Social Media and Internet Sources (Lexipol 2017) https://www.cityo fpasadena.net/wpcontent/uploads/s ites/28/Policy605-InvestigativeUse-of-SocialMedia-andInternetSources.pdf

No explicit approved or disapproved uses. “Use of social media … to access information for the purpose of criminal investigation shall comply with applicable laws, city’s internet use policy and policies regarding privacy, civil rights and civil liberties. The Pasadena Police Department will continually balance the use of investigative tools against concerns regarding unwarranted government surveillance. Information gathered via the Internet should only be accessed by

DRAFT – July 22, 2019
public generally.” “General topical research” is defined as “research concerning subject areas that are relevant for the purpose of facilitating or supporting the discharge of investigative responsibilities. It does not include online searches for information by individuals’ names or other individual identifiers, except where such searches are incidental to topical research, such as searching to locate writings on a topic by searching under the names of authors who write on the topic, or searching by the name of a party to a case in conducting legal research.” (emphasis added)
No supervisory approval required to access information that doesn’t require an account, password, email address, alias, etc. (eg, publicly available Tweets), when used for “legitimate investigative purposes.”
Supervisory approval required when accessing information from an internet source that requires
9

If an officer finds information relevant to a criminal investigation while off-duty or using his or her own equipment, he or she should “note the dates, times, and locations of the information and report the discovery to his/her supervisor as soon as practicable.” Someone should then “attempt to replicate the finding when on-duty and using department equipment.”

members while on-duty and for purposes related to the mission of this department.”

Philadelphia, PA

Social Media and Networking (2012) https://www.phill ypolice.com/asset s/directives/D6.1 0SocialMediaAndN etworking.pdf

“Social media provides a contemporary and potentially valuable means of assisting the department and its personnel in meeting several police strategies,” including investigations.
No additional guidance regarding use in investigations.

Salt Lake City, UT

Investigative Use of Social Media and Internet Sources (Lexipol 2019); First Amendment Assemblies (Lexipol 2019) http://www.slcdo cs.com/police/pp m.pdf

During course of an investigation, if officer finds social media profile of a victim, witness, or suspect, he or she can use social media to contact the person, using the officer’s own name (but not a personal account) or an alias. “If contact is established: a. A member will
immediately identify themselves and provide contact information. b. Members must consider whether contacting the subject in this manner will reveal an individual’s cooperation with law enforcement and whether that will pose an undue risk to that individual’s personal safety. c. Members must consider the implications of this type of contact for the case being investigated. d. Members shall not use personal accounts to make such contacts.”

DRAFT – July 22, 2019
an account, password, email address, alias, etc.

From First Amendment Assemblies policy: “In order to properly assess the potential impact of a public assembly or demonstration on public safety and order, relevant information should be collected and vetted” – including “assessing social media outlets.”
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An online alias can only be used to seek or retain information that:
a. Is based upon a criminal predicate or threat to public safety; or
b. Is based upon a reasonable suspicion that an identifiable individual or organization has committed a crime or is involved in/is planning criminal conduct/activity that presents a threat to an individual/ community/ the nation, and the information is relevant to the criminal activity; or
c. Is relevant to investigation & prosecution of suspected criminal incidents or prevention of crime;
d. Is useful in crime analysis or situational assessment reports for the administration of criminal justice and public safety.

If an officer finds information relevant to a criminal investigation while off-duty or using his or her own equipment, he or she should “note the dates, times, and locations of the information and report the discovery to his/her supervisor as soon as practicable.” Someone should then “attempt to replicate the finding when on-duty and using department equipment.”
Members may not use personal accounts to make contacts with victims/ witnesses/ suspects.

Immediate supervisors must authorize use of online alias.

(Note that the language above mirrors the language in other policies, but here it is only with respect to use of aliases, whereas in the other policies it applies to use of social

Seattle, WA Topeka, KS

Social Media (2019) http://www.seattl e.gov/tech/about /policies-anddirectorsrules/socialmedia-use-policy Social Media (2016) https://s3.amazon aws.com/cot-wpuploads/wpcontent/uploads/ police/policies/3. 11SocialMedia.pdf ; Investigations and Crime Scenes (2018) https://s3.amazon aws.com/cot-wpuploads/wpcontent/uploads/ police/policies/4. 16Investigationsan dCrimeScenes.pdf

No particular guidance on use for investigative purposes.
“Access and use of social media may be valuable investigative tools and may be used in conformance with this order to assist with investigations and intelligence gathering, including but not necessarily limited to:
1. Missing persons; 2. Wanted persons; 3. Gang participation; 4. Criminal activity
generally; 5. Crimes perpetrated
online (e.g., cyber bullying, cyber stalking); and 6. Photos or videos of a crime posted by a participant/ observer.”

Few additional details, except that Manual on Investigations and Crime Scenes states that

DRAFT – July 22, 2019

media overall. In addition, the situational assessment language is quite broad & offers a lot of latitude for collection of information via fictitious accounts.
Online undercover activity (OUA) occurs when a member using an online alias interacts with someone via social media. OUA may only occur “when there is a reason to believe that criminal offenses have been, will be, or are being committed” – that is, members may not interact with people online via an alias for the purpose of situational assessment.
“Any employees using non-official social media accounts for investigative purposes will obtain written permission from the Chef of Police, regardless of duty assignment.” They must maintain a log of all postings.
Bureau Commander must authorize prior to using a fictitious account/identity as part of an investigation.
No details provided regarding authorization process.

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“public domain computer searches” are a potential source of background information during a followup investigation on a crime scene.

DRAFT – July 22, 2019

12

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ACLU OF TENNESSEE, INC., Plaintiff,
v. CITY OF MEMPHIS, TENNESSEE,
Defendant.

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Case No. 2:17-cv-02120-JPM-jay

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ORDER DENYING DEFENDANT CITY OF MEMPHIS’S SEALED MOTION FOR IMMEDIATE MODIFICATION OF THE KENDRICK CONSENT DECREE

Before the Court is Defendant City of Memphis’s (hereinafter “the City”) September 25, 2019 Sealed Motion for Immediate Modification of the Kendrick Consent Decree. (ECF No. 227.) The City moves the Court pursuant to Federal Rule of Civil Procedure 60(b)(5) for “immediate relief from Section I of the September 14, 1978 Order, Judgment and Decree entered in the case of Kendrick, et al v. Chandler, et al.” (Id. at PageID 7699.) For the reasons set forth below, the City’s Sealed Motion for Immediate Modification of the Kendrick Consent Decree is DENIED.
I. BACKGROUND
On September 14, 1976, a group of residents of the City of Memphis and the American Civil Liberties Union in West Tennessee filed an action against the City and several city officials. (Case No. 2:76-cv-00449, ECF No. 2.) The Kendrick Complaint asserted that the Memphis Police Department violated the plaintiffs’ protected First, Fourth, Fifth, Sixth, Ninth,

and Fourteenth Amendment Rights by establishing a “Domestic Intelligence Unit whose purpose was to investigate and maintain files upon citizens engaged in non-criminal, constitutionally protected activities which were thought to be ‘subversive’ and/or advocating unpopular or controversial political issues.” (Id. at ¶ 6.) The Kendrick plaintiffs further alleged that the City and the Memphis Police Department burned the Domestic Intelligence Unit’s files rather than turning them over to the Court, following the Court and the plaintiffs’ discovery of the Domestic Intelligence Unit’s existence. (Id. at ¶ 9.)
On September 14, 1978, the District Court entered an Order, Judgment, and Decree with the consent of the Kendrick plaintiffs and defendants. (Case No. 2:76-cv-00449, Kendrick Consent Decree, ECF No. 16.) The Kendrick Consent Decree’s “Statement of General Principles” provides:
The provisions of this Decree prohibit the defendants and the City of Memphis from engaging in law enforcement activities which interfere with any person’s rights protected by the First Amendment to the United States Constitution including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose. Furthermore, even in connection with the investigation of criminal conduct, the defendants and the City of Memphis must appropriately limit all law enforcement activities so as not to infringe on any person’s First Amendment rights.
(Id. at § A.) The Kendrick Consent Decree generally provides the following: (1) it prohibits the City and the Memphis Police Department from engaging in conduct that impermissibly interferes with the exercise of First Amendment Rights; (2) it regulates the ways in which the City is permitted to interfere with its citizens’ exercise of their First Amendment Rights; and (3) it further requires the City to publicize the Consent Decree and familiarize law enforcement personnel with its requirements. (Id. at §§ C–J.) Section I of the Kendrick Consent Decree
2

provides that the City “shall not encourage, cooperate with, delegate, employ or contract with, or act at the behest of, any local, state, federal or private agency, or any other person, to plan or conduct any investigation, activity or conduct prohibited by this Decree.” (Id. at § I.) Section G of the Kendrick Consent Decree provides a detailed approval process by which the Memphis Director of Police is to review and authorize lawful criminal investigations that “may result in the collection of information about the Exercise of First Amendment rights, or interfere in any way with the exercise of such First Amendment rights.” (Id. at § G.)
On February 22, 2017, a group of individual plaintiffs, including Elaine Blanchard, Keedran Franklin, Paul Garner, and Bradley Watkins (collectively, the “Blanchard Plaintiffs”), filed a Complaint against the City to enforce the terms and conditions of the Kendrick Consent Decree, alleging that certain activities engaged in by the City, including an “escort list” that named the Blanchard Plaintiffs, violated the Decree. (ECF No. 1.) On March 2, 2017, the City filed a Motion to Dismiss the Blanchard Plaintiffs on the grounds that they lacked standing to enforce the Kendrick Consent Decree. (ECF No. 8.) On March 2, 2017, the American Civil Liberties Union of Tennessee (hereinafter “ACLU”) filed its Motion to Intervene as Plaintiff in the litigation, and the Court granted the Motion shortly thereafter. (ECF No. 12, 14.) On March 3, 2017, the ACLU filed its Intervenor Complaint. (ECF No. 16.) On March 8, 2017, the City also filed a Motion to Dismiss the ACLU’s Complaint, alleging that the ACLU was not a party to the Consent Decree and therefore lacked standing to enforce its terms and provisions. (ECF No. 41.) The Court granted the City’s Motion to Dismiss as to the Blanchard Plaintiffs, but denied its Motion to Dismiss as to the ACLU.
On August 10, 2018, the Court granted in part and denied in part the ACLU’s Motion for Summary Judgment. (ECF No. 120.) The Court found that the City had violated portions of the
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Kendrick Consent Decree by gathering “‘political intelligence’ as defined and prohibited by the Decree” and by “fail[ing] to review and issue written authorizations for at least some lawful investigations of criminal conduct that ‘may result in the collection of information about’ or ‘interfere in any way with’ the ‘exercise of First Amendment rights.’” (ECF No. 120 at PageID 4854–55.)
The Court held a four-day non-jury trial beginning on August 20, 2018. (ECF Nos. 128– 131.) On October 26, 2018, the Court entered its Trial Order and Opinion, in which it found that the ACLU had proven by clear and convincing evidence that the City had violated the Kendrick Consent Decree in numerous respects. (ECF No. 151 at PageID 6242–43.) Such actions included the City’s unlawful gathering of political intelligence in direct violation of the Decree, the City’s unlawful maintenance of political intelligence gathered as a result of such investigations, its dissemination of such political intelligence to third-party non-law enforcement individuals and entities, its failure to adequately instruct Memphis Police Department officers on the Decree’s requirements, and the City’s failure to establish an investigative approval process as required by § G of the Decree. (ECF No. 151 at PageID 6242–43.) The Order also provided guidance as to how the City may comply with the Decree going forward, and recognized that “the requirements of the 1978 Kendrick Litigation Consent Decree impose significant burdens on the City and the MPD.” (Id. at PageID 6243.)
On October 29, 2018, the Court issued its Order Memorializing Sanctions. (ECF No. 152.) The Court imposed five categories of sanctions on the City and appointed an Independent Monitor to “supervise the implementation of the sanctions.” (ECF No. 152 at PageID 6289–90.) These categories of sanctions included: (1) that the City revise its departmental policies to include a definition of “political intelligence”; (2) that the City establish a training program for
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members of the Memphis Police Department on the meaning of political intelligence and instruct the officers that “political intelligence is not permissible as a goal of an investigation nor as a means to an end of an otherwise lawful investigation”; (3) that the City create an approval process for investigations into unlawful conduct that may incidentally result in the gathering or collection of political intelligence, with the City to submit to the Court a proposed authorization mechanism in compliance with § G of the Decree; (4) that the City create and submit to the Court guidelines for officers on the use of social media searches and social media collators in compliance with the Decree; and (5) that the City submit a periodic list of all search terms entered into social media by Memphis Police Department officers. (Id. at PageID 6287–90.) The Court, with the consent of the parties, appointed Edward Stanton III as the Independent Monitor to supervise the City’s compliance with the Court’s Order. (ECF No. 176.)
On August 15, 2018, the City filed a Motion for Relief from Judgment or Order, seeking to vacate or modify the Kendrick Consent Decree. (ECF No. 124.) On October 9, 2018, the ACLU filed its Response in Opposition to the City’s Motion for Relief from Judgment or Order. (ECF No. 149.) The ACLU requested in its Response that if the Court did not deny the City’s Motion, that the Court permit discovery and an evidentiary hearing to determine whether modification of the Consent Decree is appropriate. (Id. at PageID 6218–19.) On November 14, 2018, the Court entered a Consent Decree Modification Scheduling Order, which set an evidentiary hearing for July 8, 2019, and provided a discovery timeline as well as a public comment period. (ECF No. 159.) On December 20, 2018, the parties filed a Joint Motion to Stay the City’s Motion to Modify and/or Vacate Judgment, in which the parties stated their belief that with the Independent Monitor’s guidance could “significantly narrow, and possibly even eliminate, many of the disputed issues before the Court.” (ECF No. 175 at PageID 6257.) The
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Court granted the Motion and stayed all deadlines related to modification. (ECF No. 178.) The Court also set a telephonic status conference for January 2, 2020 to discuss the City’s Motion for Relief from Judgment. (ECF No. 178.)
On August 27, 2019, the Court held a hearing to discuss the Monitor’s Second Quarterly Report. (ECF No. 222.) During the hearing, the City requested an in-camera conference with the Court, to discuss certain time-sensitive, security-related issues that required prompt resolution by the Court. (ECF No. 224.) During the Conference, the City raised certain issues regarding outstanding requests for authorization (“RFA”) submitted to the Independent Monitor. (Id.)
On September 25, 2019, the City filed its Sealed Motion for Immediate Modification of the Kendrick Consent Decree. (ECF No. 227.) The Motion addresses some of the issues raised by the City during the in-camera conference held on August 27, 2019. (Id.); see infra Sec. III.3. On October 9, 2019, the ACLU filed its Response to the City’s Motion for Immediate Modification of the Consent Decree. (ECF No. 231.) The Court granted the City’s Motion for Leave to Reply on October 16, 2019, requiring the City to file its Reply no later than October 31, 2019. (ECF No. 237.) On October 31, 2019, the City filed its Reply. (ECF No. 244.)
II. LEGAL STANDARD
“A consent decree is essentially a settlement agreement subject to continued judicial policing.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983). A consent decree shares the characteristics and “attributes of both a contract and of a judicial act.” Id. (citing United States v. ITT Cont’l Banking Co., 420 U.S. 223, 236 n.10 (1975)). “It is both ‘a voluntary settlement agreement which could be fully effective without judicial intervention’ and ‘a final
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judicial order . . . plac[ing] the power and prestige of the court behind the compromise struck by the parties.’” Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1017 (6th Cir. 1994) (quoting Williams, 720 F.2d at 920). Because a consent decree “memorializes the bargained for position of the parties,” it should be “strictly construed to preserve the bargained for position of the parties.” Id.; see ITT Cont’l Banking Co., 420 U.S. at 238; see also Vogel v. City of Cincinatti, 959 F.2d 594, 598 (6th Cir. 1992). Additionally, the “‘scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it’ or by what ‘might have been written had the plaintiff established his factual claims and legal theories in litigation.’” Vanguards, 23 F.3d at 1017 (quoting Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 574 (1984)).
However, because a consent decree also constitutes a final judicial order, “[o]nce approved, the prospective provisions of a consent decree operate as an injunction.’” Waste Mgmt. of Ohio, Inc. v. City of Dayton, 132 F.3d 1142, 1145 (6th Cir. 1997). This quality allows the district court to “retain jurisdiction over the decree during the term of its existence,” to “protect the integrity of the decree with its contempt powers,” and to “modify the decree should ‘changed circumstances’ subvert its intended purpose.” Williams, 720 F.2d at 920. This judicial nature also implicates a court’s interpretation of the decree, whereby the court is “not bound under all circumstances by the terms contained within the four corners of the parties’ agreement.” Waste Mgmt. of Ohio¸ 132 F.3d at 1146.
Additionally, because of this judicial character, Federal Rule of Civil Procedure 60(b) applies to consent decrees. Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 378 (1992). Rule 60(b) sets out six grounds by which a party, upon motion, may be relieved of “a final judgment, order, or proceeding.” Fed. R. Civ. P. 60(b)(1)–(6). Rule 60(b)(5) provides that a party may
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seek relief from a final judgment, order or proceeding on the grounds that “the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable.” Fed. R. Civ. P. 60(b)(5).
Under Rule 60(b)(5), the “party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree.” Rufo, 502 U.S. at 383. Additionally, if “the party meets this standard, the court should consider whether the proposed modification is suitably tailored to the changed circumstance.” Id. “A party seeking modification of a consent decree may meet its initial burden by showing either a significant change either in factual conditions or in law.” Id. at 384; Horne v. Flores, 557 U.S. 433, 457 (2009) (holding that Rule 60(b)(5) “provides a means by which a party can ask a court to modify or vacate a judgment or order if a significant change either in factual conditions or in law renders continued enforcement detrimental to the public interest” (internal quotations omitted)). “Modification of a consent decree may be warranted” under Rule 60(b)(5) “when changed factual conditions make compliance with the decree substantially more onerous,” “when a decree proves to be unworkable because of unforeseen obstacles,” and “when enforcement of the decree without modification would be detrimental to the public interest.” Vanguards, 23 F.3d at 1018 (quoting Rufo, 502 U.S. at 367).
Although “[a] consent decree must of course be modified if, as it turns out later, one or more of the obligations placed upon the parties has become impermissible under federal law,” a district court may, but not must, modify a consent decree “when the statutory or decisional law has changed to make legal what the decree was designed to prevent.” Rufo, 502 U.S. at 388; see, e.g., Sys. Fed'n No. 91, Ry. Emp. Dep't, AFL-CIO v. Wright, 364 U.S. 642, 651 (1961) (noting that a court-ordered decree should be modified when “a change in law brings [the decree] in
8

conflict with statutory objectives”). In the context of consent decrees concerning constitutional rights, parties may “save themselves the time, expense, and inevitable risk of litigation” by entering into a settlement that does “more than the Constitution itself requires . . . but also more than what a court would have ordered absent the settlement.” Id. at 389. In such situations, a district court does not abuse its discretion by entering a decree that does more than is required by the Constitution when it “clearly was related to the conditions found to offend the Constitution.” Id. (citing Milliken v. Bradley, 418 U.S. 717, 738 (1974)). Further, “[t]o hold that a clarification in law automatically opens the door for relitigation of the merits of every affected consent decree would undermine the finality of such agreements and could serve as a disincentive to negotiation of settlements in institutional reform litigation.” Id. (citing Plyler v. Evatt, 924 F.2d 1321, 1327 (4th Cir. 1991)). To allow such a holding would “do violence to the obvious intention of the parties that the decretal obligations assumed by the state were not confined to meeting minimal constitutional standards,” and would procedurally “make necessary . . . a constitutional decision every time an effort was made either to enforce or modify the decree by judicial action.” Plyler, 924 F.2d at 1327.
Although a clarification of the law subsequent to the entry of the decree is not by itself sufficient grounds for modification, it can justify modification “if the parties had based their agreement on a misunderstanding of the governing law” at the time of the decree. Id. For example, a district court should have modified a consent decree when the “parties had interpreted an ambiguous equitable decree in a manner contrary to District Court’s ultimate interpretation and the District Court’s interpretation was contrary to intervening decisional law.” Id. (referencing Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 437–48 (1976)). Additionally, decrees “exceed appropriate limits if they are aimed at eliminating a condition that
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does not violate [federal law] or does not flow from such a violation.” Milliken, 433 U.S. at 282; Horne, 557 U.S. at 450.
The Supreme Court has also made clear that courts should take a flexible approach to modification under Rule 60(b)(5) in the context of institutional reform decrees. Horne, 557 U.S. at 450; Rufo, 502 U.S. at 381; Lorain N.A.A.C.P. v. Lorain Bd. Of Educ., 979 F.2d 1141, 1149 (6th Cir. 1992). A flexible approach is necessary in the context of institutional reform decrees because such decrees “remain in force for many years, and the passage of time frequently brings about changed circumstances . . . that warrant reexamination of the original judgment.” Horne, 557 U.S. at 447–48. Additionally, such decrees implicate “sensitive federalism concerns” and involve dynamics not found in other types of litigation. Id.; Missouri v. Jenkins, 515 U.S. 70, 99 (1995). Public officials may “consent to, or refrain from vigorously opposing, decrees that go well beyond what is required by federal law,” and binding later local officials to such decisions may “improperly deprive future officials of their designated legislative and executive powers.” Horne, 557 U.S. at 448–49 (quoting Frew v. Hawkins, 540 U.S. 431, 441 (2004)). The court must “defer to local government administrators” when making modifications to an institutional reform decree, because such individuals have the “‘primary responsibility for elucidating, assessing, and solving’ the problems of institutional reform.” Id. (quoting Brown v. Board of Education, 349 U.S. 294, 299 (1955)). While a decree may require such officials to “do more than is minimally requires by the Constitution, . . . a court should surely keep the public interest in mind on ruling on a request to modify based on a change in conditions making it substantially more onerous to abide by the decree.” Id. at 392.
Although the Rule 60(b)(5) standard for modification of institutional reform consent decrees is “flexible,” modification will not “be warranted in all circumstances.” Rufo, 502 U.S.
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at 383. “Rule 60(b)(5) provides that a party may obtain relief from a court order when it is no longer equitable that the judgment should have prospective application, not when it is no longer convenient to live with the terms of the decree.” Id. (internal quotations omitted).
Finally, if the moving party establishes that a change in fact or law warrants a courtordered modification of a consent decree, the court must still determine whether “the proposed modification is suitably tailored to the changed circumstances.” Rufo, 502 U.S. at 391. In making such a determination, “three matters should be clear.” Id. First, “a modification must not create or perpetuate a constitutional violation.” Id. Second, “[a] proposed modification should not strive to rewrite a consent decree so that it conforms to the constitutional floor.” Id. at 391. Third, “The Court should not turn aside to inquire whether [the plaintiff’s claims] could have been opposed with success if the Defendants had offered opposition.” Id. at 391–92 (quoting United States v. Swift & Co., 286 U.S. 106, 116–17 (1932)) (internal quotations omitted). This limited review is warranted because “a consent decree is a final judgment that may be reopened only to the extent that equity requires.” Id.
III. ANALYSIS
The City moves the Court pursuant to Rule 60(b)(5) “to modify the decree by vacating or significantly modifying Section I of the Decree, as interpreted by the Monitor, because it unduly burdens legitimate investigative activities and creates restrictions that are unnecessary for the protection of First Amendment rights.” (ECF No. 227-1 at PageID 7704.) The City argues that § I unduly burdens legitimate law enforcement activities because “[t]he City has interpreted [§ I] to prohibit it from using other agencies or persons as ‘surrogates’ to do indirectly what it could
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not do directly . . . [and] prevents inter-agency law enforcement information-sharing and cooperation.” (Id.)
As grounds for its proposed modification, the City contends first that First Amendment decisional law has changed since the entry of the Decree in 1978, and, because of this change, the Decree “does not directly protect any federal right.” (Id. at PageID 7704.) The City specifically relies on a line of Sixth Circuit decisions interpreting Laird v. Tatum, 408 U.S. 1 (1972), and in particular Gordon v. Warren Consol. Bd. of Educ., 706 F.2d 778, 781 (6th Cir. 1983), for the proposition that “investigation or surveillance does not violate First Amendment rights, even though the investigation or surveillance may be targeted at a particular sociopolitical group or at the group’s First Amendment activities.” (ECF No. 227-1 at PageID 7708.)
The City next argues that § I of the Consent Decree “hampers the City’s exercise of its legitimate law enforcement functions and requires the City to expend scarce resources to assure compliance with restrictions that go well beyond that which is required by federal law.” (Id. at PageID 7713.) The City relies primarily on a Seventh Circuit decision, Alliance to End Repression v. City of Chicago, 742 F.2d 1007, 1020 (7th Cir. 1984), which the City argues supports its position that modification is necessary because the decree at issue in Alliance also affected “the ability of the Chicago Police Department to effectively protect the public.” All. to End Repression, 237 F.3d at 802. (ECF No. 227-1 at PageID 7714.)
The City finally argues that the Court must modify the Kendrick Consent Decree because § I of the Decree prevents the Memphis Police Department from participating in certain joint law enforcement activities and programs. (ECF No. 227-1.) The City in particular notes the detrimental effect of the Decree on the City’s participation in certain intergovernmental and non-
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governmental crime-prevention agencies and programs including: (1) the City’s sharing of information with federal law enforcement agencies; (2) the City’s continued participation in the Joint Terrorism Task Force and the Tennessee Fusion Center; (3) the City’s participation in the Multi-Agency Gang Unit; (4) the City’s participation in the CrimeStoppers program; and (5) the City’s information sharing with the Shelby County Sheriff’s Department and Shelby County Schools. (Id. at PageID 7715.) The City generally contends that the Kendrick Consent Decree effectively prevents its participation in these programs and bars the sharing and gathering of information in conjunction with other law enforcement agencies. (Id.) The City’s argument relies on its reading of the Monitor’s interpretation of § I of the Decree, which the City contends would require it to vet all information received in connection with these programs. (Id. at 7715– 31.)
The ACLU does not consent to the modification and rejects the City’s assertion that modification of § I of the Decree is warranted. (ECF No. 231 at PageID 7954.) The ACLU argues that First Amendment caselaw addressing the constitutionality of police surveillance has not changed in the intervening years so as to warrant modification of the Decree. (Id.) It further contends that the City “provides little in the way of specific evidence of the burden it claims to be suffering due to the restrictions on joint operations,” and therefore fails to meet its burden justifying modification under Rule 60(b)(5). (Id. at PageID 7954.) The ACLU also asserts that the City “has offered no alternative interpretation of § I from the one it argues is the position of the Monitor,” and has “failed to propose any modification to the language of § I which would be ‘suitably tailored’ to the change in circumstances for which it complains.” See Northridge Church v. Chapter Twp. Of Plymouth, 647 F.3d 606, 613–14 (6th Cir. 2011). (Id. at PageID 7970.) The ACLU additionally contends that it “should be afforded discovery and an evidentiary
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hearing” as is required when assessing the merits of a non-consensual motion for modification of a consent decree. See United States v. Wayne Cty., 369 F.3d 508, 511 (6th Cir. 2004). (Id. at PageID 7971.) Finally, the ACLU points out that the City has not demonstrated why it is entitled to “immediate review” of the Motion in advance of the currently scheduled January 2, 2020 status conference addressing modification. (Id. at PageID 7971–72.)
The City argues in its Reply that, contrary to the ACLU’s interpretation of § I of the Decree, both the Monitor and the Court have interpreted § I to require the full vetting of all information received from any source outside of the Memphis Police Department. (ECF No. 244 at PageID 8157.) The City relies on the Court’s instruction in the August 27, 2019 in-camera conference addressing the September 11, 2019 National Public Safety Partnership Symposium and a series of correspondences from August 2019 between the Monitor and the City. (Id. at PageID 8156–8160.) The City’s Reply provides a proposed Modification to § I, which would strike certain language including “cooperate with,” “or contract with, or act at the behest of” other local, state, federal, or other private entities and law enforcement agencies to violate the Decree. (Id. at PageID 8160.) The City’s requested modification would also add language to § I, allowing the receipt of information from outside law enforcement entities free from the review and authorization process mandated by § G of the Decree. (Id. at PageID 8160.) Finally, the City’s Reply reiterates its arguments that the Kendrick plaintiffs would not have been able to bring their claim today, as they would lack standing to sue under Laird, Gordon, and its progeny. (Id. at PageID 8060–61.)
1. Laird, Gordon, and “Subjective Chilling” The City argues that Laird and its Sixth Circuit progeny, specifically Gordon, establish that “if an undercover investigation or surveillance is conducted in good faith and is not designed
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to regulate or constrain a person or group’s First Amendment activities, then that investigation or surveillance does not violate First Amendment rights, even though the investigation or surveillance may be targeted at a particular socio-political group or at the group’s First Amendment activities.” (ECF No. 227-1 at PageID 7708.) The City contends that these cases stand for the proposition that “subjective chilling” of one’s First Amendment rights does not amount to a constitutional violation, and that “surveillance targeting First Amendment activity as part of a good faith investigation is permissible so long as Fourth Amendment protections are observed.” (ECF No. 7710, 7712 (citing Gordon, 706 F.2d at 780–81, 781 n.3).) The City specifically asserts, “In short, it is now plainly legal to engage in much of the surveillance activity the Decree was designed to prevent, making continued enforcement of most aspects of the Decree inequitable” following Gordon. (Id. at PageID 7712.)
The ACLU disagrees with the City’s interpretation of these cases. It disputes the City’s assertion that because “the Decree requires it to go above the constitutional floor” the Court must relieve it from the obligations of the Decree; the ACLU contends that such an assertion “is not the standard for modification or relief from a consent decree.” (ECF No. 231 at PageID 7957.) The ACLU argues that although consent decrees may be modified when decisional law or statutory law makes legal the conduct that a decree was meant to prevent, “modification is not authorized simply because the parties agreed to obligations that would not necessarily be required had the case been adjudicated by the Court.” Rufo, 502 U.S. at 388, 391; United States v. Michigan, 1995 WL 469430, at *14 (6th Cir. Aug. 7, 1995). (Id. at PageID 7958.) The ACLU specifically notes that the Supreme Court “rejected the defendants’ claim that a clarification in the law, by itself, justified the modification,” and the City must demonstrate that in addition to a change in law the “parties based their agreement on a misunderstanding of the
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governing law” at the time they consented to the decree. (Id. at PageID 7958 (quoting Rufo, 502 U.S. at 390).)
Applying this standard to the Kendrick Consent Decree, the ACLU provides various arguments in support of its contentions. The ACLU argues that: (1) Laird and Gordon do not stand for the proposition that surveillance and intelligence gathering by law enforcement do not violate First Amendment rights, and instead expressly reserved ruling on whether such actions violated the plaintiffs’ First Amendment rights; (2) because Laird was decided before the Kendrick Consent Decree was entered, the parties did not misunderstand First Amendment law; (3) contrary to the City’s assertion, First Amendment caselaw addressing the lawfulness of police surveillance following Laird has not changed; and (4) the Kendrick Consent Decree was not so limited as to only address surveillance of protected political activities but also encompassed “law enforcement activities that interfere with any person’s rights protected by the First Amendment.” (Id. at PageID 7959–64.)
The City has not properly set forth the correct standard governing modification of a consent decree. A change in decisional law, alone, does not justify modification of a valid consent decree. Rufo, 502 U.S. at 388. A change in decisional law, coupled with facts demonstrating that the parties misunderstood the relevant caselaw at the time the parties entered in to the decree, may warrant modification. Id. Additionally, “[t]o hold that a clarification in law automatically opens the door for relitigation of the merits of every affected consent decree would undermine the finality of such agreements and could serve as a disincentive to negotiation of settlements in institutional reform litigation.” Id. (citing Plyler, 924 F.2d at 1327). It is also true that modification may be warranted if the decree was “aimed at eliminating a condition that
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does not violate [federal law] or does not flow from such a violation.” Milliken, 433 U.S. at 282 (1977); Horne, 557 U.S. at 450.
Applying this standard to the Kendrick Consent Decree, the Court disagrees with the City’s interpretation of Laird. Laird does not directly stand for the proposition that surveillance of political activities is “plainly legal” under the First Amendment. See Laird, 408 U.S. at 3. In Laird, the plaintiffs alleged that the Department of the Army was illegally surveilling “lawful and peaceful civilian political activity” and additionally was cataloguing, reporting, and disseminating information that was “thought to have at least some potential for civil disorder.” Id. at 3–6.
The Court in Laird limited its holding to the question of “whether the jurisdiction of a federal court may be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity that is alleged to be broader in scope than is reasonably necessary for the accomplishment of a valid governmental purpose.” Id. at 10. The Court also recognized that “governmental action may be subject to constitutional challenge even though it has only an indirect effect on the exercise of First Amendment rights.” Id. at 13. But the Court’s holding was not grounded on the lawfulness or unlawfulness of such actions. Instead, the Supreme Court based its decision on the fact that the plaintiffs failed to allege that they had “sustained, or [were] immediately in danger of sustaining, a direct injury as the result of that action.” Id. at 13. The Court distinguished the facts of Laird from the facts of other cases in which it previously had found that allegations of surveillance’s “chilling” effect on the plaintiffs’ First Amendment-protected activities constituted an injury-in-fact for purposes of standing. Id. at 11. It noted that the “chilling” effect alleged in those cases “did not arise merely from the
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individual’s knowledge that a government agency was engaged in certain activities or from the individual’s concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual.” Id. at 11. Instead, the plaintiffs’ harms in those cases involved governmental action that was “regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging.” Id.; see, e.g., Baird v. State Bar of Arizona, 401 U.S. 1 (1971); Keyishian v. Bd. of Regents, 385 U.S. 589 (1967).
Thus, the Supreme Court did not definitively hold that the “chilling” of one’s First Amendment rights was categorically not a cognizable claim. Instead, the Court only held that the plaintiffs did not have a justiciable claim because they had failed to adduce facts demonstrating they were suffering a present or imminent injury-in-fact. The Supreme Court explicitly limited its holding to this issue and did not pass judgment on the lawfulness of the defendants’ actions. See id. at 15–16 (“[O]ur conclusion is a narrow one, namely, that on the record the respondents have not presented a case for resolution by the courts . . . there is nothing in our Nation’s History, or in this Court’s decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities . . . would go unnoticed or unremedied.”).
The Sixth Circuit’s decision in Gordon also does not affect the Court’s reading of Laird’s limited holding. 706 F.2d at 778–81. Gordon involved an action brought by a group of students and teachers who alleged that an undercover policewoman’s investigation of potential drug trafficking, which involved in-class surveillance, violated the students’ and teachers’ First Amendment rights. Id. at 779–80. The police officer did not find evidence of drug trafficking or
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sales, and the plaintiffs did not become aware of the investigation until over a month after the investigation ended. Id. at 779. The plaintiffs’ complaint alleged that the “covert police surveillance and its threatened use in the future allegedly injured the plaintiff sociology and psychology teachers” and that “[t]he surveillance chilled their speech.” Id. at 780.
The Sixth Circuit affirmed the district court’s decision to dismiss the complaint for “failure to state a cause of action,” relying on Laird. Id. at 780–81. The Sixth Circuit recognized that “the mere possibility of improper use of information gained from police surveillance of unlawful activities is not itself actionable.” Id. at 780 (citing Philadelphia Yearly Meeting of the Religious Soc’y of Friends v. Tate, 519 F.2d 1335, 1337 (3d Cir. 1975)). The court found that the plaintiffs’ complaint failed to assert a “single allegation that the covert operation in and of itself resulted in tangible consequences.” Id. Specifically, “the surveillance did not disrupt classroom activities or the education of students . . . [and] [t]he mere presence of an intelligence data-gathering activity in the classroom does not create a justiciable controversy.” Id. The court therefore concluded that the “vague general allegations that students and teachers were harmed when news of the covert operation spread throughout the community” constituted only “a ‘subjective’ chilling of the First Amendment rights.” Id. at 781.
However, the Sixth Circuit in Gordon provided some guidance as to under what circumstances allegations of chilling of one’s First Amendment-protected activities may be justiciable. Id. at 781 n.2. The court distinguished the facts of plaintiffs’ case from the facts of Philadelphia Yearly Meeting of the Religious Society of Friends v. Tate, which involved the public disclosure of “intelligence files” by the police. Id. (citing Tate, 519 F.2d at 1335). Such a disclosure, the court noted, “created a justiciable cause of action.” Id. The court also distinguished the facts of Gordon from the facts of another Third Circuit case, Paton v. LaPrade,
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524 F.2d 862 (3d Cir. 1975), which held that “a justiciable controversy was present where the FBI investigated a single high school student.” Id. Such comparisons demonstrate that surveillance can constitute a justiciable First Amendment claim, so long as the complaint provides more than speculative, unspecific allegations of the chilling of plaintiffs’ First Amendment rights.
Therefore, both Laird and Gordon do not make it “plainly legal” for the police to engage in open surveillance of its citizens’ political activities. These cases only stand for the limited proposition that plaintiffs lack standing to challenge police surveillance when they fail to allege facts demonstrating a particularized, discrete action taken against them by the police, when they cannot demonstrate that they were singled out for surveillance, or when they fail to allege that law enforcement disclosed to the general public or third parties information gathered pursuant to police surveillance. See Gordon, 706 F.2d at 781 n.2.
Moreover, Supreme Court decisions since Laird have strongly suggested that political surveillance activities that “objectively chill” First Amendment-protected activities can overcome the standing hurdle presented by Laird. See Meese v. Keene, 481 U.S. 465 (1987). In Meese v. Keene¸ the Court clarified its use of the term “subjective chilling” in Laird and held that a California politician presented a justiciable First Amendment claim by providing evidence in the form of affidavits and public polling results that the Department of Justice’s use of the term “political propaganda” in connection with three short films he hoped to present to the public would cause him reputational injury. Meese, 481 U.S. at 473–74. The Court found that his injury was “distinct and palatable” and amounted to more than a “subjective chilling” of his First Amendment rights. Id. at 473. The Court explained that the alleged negative impact of the requirement on Plaintiff’s “personal, political, and professional reputation,” as demonstrated by
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public polling on how the term’s association with his showing of the films would affect his personal and professional career prospects, amounted to a cognizable injury-in-fact for purposes of standing. Id. at 473–74.
The holding of Meese strongly supports a finding that a plaintiff can overcome the standing challenge presented by Laird if the plaintiff supports his claim with specific facts and evidence demonstrating that an individual’s personal or professional reputation is, or likely will be, adversely affected by police surveillance of his First Amendment-protected activities. Additionally, although the Sixth Circuit has not directly addressed this issue, other circuits have applied Meese to find that such claims do, in fact, constitute cognizable First Amendment claims. See Riggs v. City of Albuquerque, 916 F.2d 582, 585–86 (10th Cir. 1990); see also Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 522–23 (9th Cir. 1989) (applying Meese to find that the plaintiffs had standing to challenge the INS’s covert, undercover videotaping and surveillance of church services after records of such information gathering was included in court filings). For example, the Tenth Circuit in Riggs v. City of Albuquerque found that the plaintiffs had sufficiently alleged “more than a chilling of their First Amendment rights.” 916 F.2d at 585. The court found that the plaintiffs had alleged “harm to their personal, political, and professional reputations in the community” in connection with the discovery of a municipal police department’s gathering, cataloguing, and dissemination of information related to residents’ political activities. Id. The court further held, “Discovery is particularly appropriate in this case because plaintiffs do not have access to the investigative files which contain the details of the specific investigations conducted by the defendants.” Id. at 586. See also Palmer v. Chicago, 755 F.2d 560, 573 (7th Cir. 1985) (stressing the importance of discovery when plaintiffs did not have access to undisclosed secret police files that were “essential in proving
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[their] injury”). These cases therefore demonstrate that, contrary to the City’s assertion, courts will find plaintiffs to have standing to bring their First Amendment claims when they allege only that they suffered reputational and “chilling” harms as a result of police surveillance of First Amendment-protected activities.
The line of cases cited to by the City that rely on Laird and Gordon also do not support the City’s contention that “it is now plainly legal to engage in much of the surveillance activity the Decree was designed to prevent.” (ECF No. 7711–12.) These cases, much like Gordon, refused to pass judgment on the legality of police surveillance and only addressed the question of whether the plaintiffs in those cases had standing to challenge the police surveillance of their First Amendment-protected activities in federal court. See Am. Civ. Liberties Union v. Nat’l Sec. Agency, 493 F.3d 644, 660–61, 661 n.3 (6th Cir. 2007) (holding that plaintiffs lacked standing to challenge warrantless wiretaps and surveillance under Laird, but refusing to hold that while “there is . . . a certain view that this is not a First Amendment issue at all . . . this distinction is a merits issue that I need not—and indeed cannot—address at this stage”); see also Ghandi v. Police Dept. of City of Detroit, 747 F.2d 338, 347 (6th Cir. 1984) (finding that although the plaintiffs could not present a cognizable constitutional violation by alleging only the use of informants by the police, “Citizens are protected [] against excesses and abuses when the government engages in surveillance activities”); Handschu v. Special Servs. Div., 349 F. Supp. 766, 769–70 (S.D.N.Y. 1972) (finding that plaintiffs had sufficiently alleged an injury-in-fact by alleging that Defendant New York Police Department went beyond mere surveillance and engaged in “abusive tactics and activities with the purpose and effect of sowing distrust and suspicion among plaintiffs and others who espouse unorthodox or dissenting political and social views”). One of these Sixth Circuit cases directly cited to by the City explicitly states that the
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question of whether surveillance violates the First Amendment is a “merits issue” that courts will not address after finding that a plaintiff lacks standing. Am. Civ. Liberties Union, 493 F.3d at 660 n.20. The Court therefore agrees with the ACLU in its Response, that “Laird and Gordon do not create new law, or clarify old law, to allow the City to use whatever surveillance it chooses without concern for the First Amendment rights of its targets. The cases merely set a threshold which a plaintiff must meet to bring a challenge based on the chilling effect of government surveillance.” (ECF No. 231 at PageID 7962.)
The City also argues that Gordon makes legal police surveillance of political activities so long as the surveillance is part of a good faith investigation into ongoing or imminent criminal activity and complies with the Fourth Amendment. (ECF No. 227-1.) This is accurate, as Gordon makes this point clear. See Gordon, 706 F.2d at 781 n.3. The Kendrick Consent Decree was not designed to prevent good-faith law enforcement investigations into criminal activity within the boundaries of the Fourth Amendment. (See Case No. 2:76-cv-00449, Kendrick Consent Decree, ECF No. 16.) The Decree was meant only to prohibit the City’s surveillance, capture, cataloguing, maintenance, and dissemination of political intelligence unrelated to any legitimate law enforcement activities. (Id.) However, modification of § I would erode the barrier put in place by the Decree; it acts as a bulwark, ensuring that the City’s surveillance practices do not cross the line from being a powerful weapon in the fight against crime to becoming an intrusive tool that improperly interferes with its residents’ First Amendmentprotected activities.1
1 See Matthew Wasserman, First Amendment Limitations on Police Surveillance: the Case of the Muslim Surveillance Program, 90 N.Y.U. L.R. 1786, 1814–15 (2015) (noting that the First Amendment acts as an “Independent Break” on police behavior, as various Supreme Court decisions have suggested that the “First Amendment offers independent protections where Fourth Amendment doctrine fears to tread”); see also Rory Van Loo, The Missing Regulatory State, 72 VAND. L.R. 1563, 1630–31 (2019) (arguing that there needs to be a clearer line between “regulatory monitoring” and “personal surveillance” in cyberspace regulation).
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The Court also reiterates that modification is not warranted just because the decree provides protections above the constitutional floor of the First Amendment’s protections. See Rufo, 502 U.S. at 391. Even assuming the City’s assertion to be correct, that the First Amendment permits the surveillance of political activity, the Court would not be inclined to accept a modification that “strive[s] to rewrite a consent decree so that it conforms with the constitutional floor.” Id. Moreover, even if the Court agreed with the City in its assertion that Sixth Circuit precedent forecloses a finding that surveillance of political activities alone violates the First Amendment, the cataloguing and dissemination of protected political information gathered as a result of police surveillance would more readily approach a cognizable First Amendment claim. See Gordon, 706 F.2d at 781 n.2. The Decree was designed to prevent the cataloguing and dissemination of political intelligence for purposes unrelated to legitimate criminal investigations. (Case No. 2:76-cv-00449, Kendrick Consent Decree, ECF No. 16.) The circumstances that prompted the Decree were the Memphis Police Department’s targeted surveillance of certain political groups and actions that went beyond surveillance alone. See supra at 20. It therefore is not correct to say that the Decree “exceed[s] appropriate limits” by “aiming at eliminating a condition that does not violate [federal law] or does not flow from such a violation.” Milliken, 433 U.S. at 282; Horne, 557 U.S. at 450.
Finally, the City failed to provide evidence that the parties in Kendrick misunderstood the law at the time they agreed to the Kendrick Consent Decree. Rufo, 502 U.S. at 388. The Supreme Court decided Laird in 1972. The Kendrick Complaint was filed on September 14, 1976, approximately four years after the Supreme Court decided Laird. While the City contends that although at the time the Court entered the Decree “the plaintiffs may have had a valid federal claim . . . any such claim could not be maintained in the present day following Laird”
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(ECF No. 227-1 at PageID 7712), this statement ignores the fact that the parties in Kendrick must have been aware of Laird and likely did not misunderstand the implications of the decision. Moreover, even if the City was aware that plaintiffs may have lacked standing to bring their First Amendment claims under Laird, it voluntarily consented to the Decree. The parties may have “save[d] themselves the time, expense, and inevitable risk of litigation” by settling the dispute, even if that Consent Decree did “more than the Constitution itself requires” and “more than what a court would have ordered absent the settlement.” Rufo, 502 U.S. at 389. “The court should not ‘turn aside to inquire whether . . . [the] action could have been opposed with success if the defendants had offered opposition.’” Id. at 391–92 (quoting Swift, 286 U.S. at 116–17).
In sum, the Court finds that the City has not demonstrated that First Amendment decisional law has changed in the intervening years since the parties consented to the Kendrick Consent Decree, nor has the City produced evidence demonstrating that the parties misunderstood Laird at the time they consented to the Decree. Therefore, the City is not entitled to modification of the Decree pursuant to Rule 60(b)(5) on the grounds that a change in intervening law makes the Decree inequitable.
2. Alliance to End Repression v. City of Chicago The City next argues that the Court should modify the Kendrick Consent Decree because “it is unworkable for a modern police force . . . [by] hamper[ing] the City’s exercise of its legitimate law enforcement functions and requir[ing] the City to expend scarce resources to assure compliance with restrictions that go well beyond that which is required by federal law.” (ECF No. 227-1 at PageID 7713.) As stated previously, the Decree does not go “well beyond that which is required by federal law.” See supra Sect. III.1. The City relies on Alliance to End Repression v. City of Chicago, 742 F.2d 1007, 1020 (7th Cir. 1984). The City argues that the
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burden imposed on the City and the Memphis Police Department by the Kendrick Consent Decree mirrors the burden imposed on the City of Chicago by the decree at issue in Alliance, and therefore, just like in Alliance where the court deemed modification appropriate under the factual circumstances of the case, the Court similarly should modify the Kendrick Consent Decree. (Id. at PageID 7714–15.) Finally, the City’s Motion provides specific illustrations detailing the ways in which the Decree has impeded vital law enforcement activities, topics the Court will discuss infra. See infra Sec. III.3.
The ACLU’s Response denies the City’s argument that the Kendrick Consent Decree unduly burdens legitimate law enforcement activity and is “unworkable for a modern police force.” (ECF No. 231 at PageID 7694–7966.) Specifically, the ACLU contends that the City’s reliance on Alliance is misplaced, and that the Alliance decree is distinguishable from the Kendrick Consent Decree. (ECF No. 231 at PageID 7695–96.) The ACLU denies that the City has met its burden for modification of the Decree and has failed to demonstrate how § I of the Consent Decree “is so draconian in its restrictions that it should be compared to provisions of the decree at issue in Alliance.” (Id. at PageID 7966.)
“[M]odification of a consent decree is an extraordinary remedy that should not be undertaken lightly.” East Brooks Books, Inc. v. City of Memphis, 633 F.3d 459, 465 (6th Cir. 2011) (quoting Rufo, 502 U.S. at 383 n.7). Although Rule 60(b)(5) requires the Court to take a flexible approach when considering the modification of institutional reform consent decrees, Rule 60(b)(5) warrants relief only when “it is no longer equitable that the judgment should have prospective application, not when it is no longer convenient to live with the terms of the decree.” Rufo, 502 U.S. at 383.
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The Court is not persuaded that Alliance warrants modification of the Kendrick Consent Decree. Alliance addressed the district court’s refusal to modify a consent decree agreed to by the City of Chicago in 1982. 237 F.3d at 799–800. Although, like the Kendrick Consent Decree, the decree in Alliance “forbids investigations intended to interfere with or deter the exercise of the freedom of expression that the First Amendment protects,” and institutes an audit system to monitor such investigations, much like § G of the Kendrick Consent Decree, the decree in Alliance involved “a dizzying array of highly specific restrictions on investigations of potential terrorists and other politically or ideologically motivated criminals.” Id. at 800. Such restrictions included provisions that required the City of Chicago to have at least “reasonable suspicion” of unlawful conduct before investigating conduct that potentially implicated First Amendment rights, and provisions that prevented the collection of membership information in political groups unless it was “unavoidably necessary to the investigation of a reasonably suspected crime.” Id. Additionally, the Decree required that such investigation “terminate as soon as reasonable suspicion of criminal conduct is dispelled” and that the police destroy any related documents. Id. at 800. The decree in Alliance further placed serious restrictions on the use of undercover informants and prevented police from engaging in more than a “brief preliminary inquiry” into “advocacy of violent conduct.” Id.
The Kendrick Consent Decree does not provide such stringent and onerous requirements, nor does it prevent legitimate law enforcement investigations or the collection of information in connection with legitimate criminal investigations. (Case No. 2:76-00449, Kendrick Consent Decree, ECF No. 16.) The Kendrick Consent Decree specifically states that the prohibition on the “Maintenance and Dissemination of Information” does not apply to information “collected in the course of a lawful investigation of criminal conduct” that “is relevant to such investigation.”
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(Id. at PageID 19.) Moreover, the authorization process detailed by the Decree is not an external, independent audit of all investigative activities. See Alliance, 237 F.3d at 800. (Id. at PageID 18–19.) The authorization process is internal to the Memphis Police Department and permits investigations that may incidentally involve protected First Amendment activities, so long as it is “unavoidably necessary for the proper conduct of the investigation.” (Id. at PageID 18.) Although the City is correct that § G limits the use of such information, it does not require a minimum showing of reasonable suspicion like the Decree in Alliance. Moreover, unlike that decree, § G does not prohibit the use of undercover law enforcement informants, nor does it prevent investigation of activities advocating for violence. (Id. at § G.)
Additionally, the Court is not persuaded by the City’s argument that the Consent Decree “impedes the Memphis Police Department’s ability to ‘cope with the problems of today’ because earlier generations of police were found by this Court to have acted improperly with the problems of the 1970s.” (ECF No. 227-1 at PageID 7714–15.) In Alliance, the City of Chicago had “been in compliance with the decree throughout the almost two decades in which the decree has been in force.” Id. at 801. The Seventh Circuit’s decision heavily relied on this fact: “The states and their subdivisions have a right to the restoration of control over the institutions of state and local government upon proof that decades of compliance with a decree that had shifted that control to a federal judge.” Id. at 801 (citing Missouri, 515 U.S. at 99). The same cannot be said of the Memphis Police Department. (See ECF Nos. 120, 151.) The Court’s Order and Opinion following the contempt trial in this case found that many officers of the Memphis Police Department were either unfamiliar with the Decree’s contents or did not understand what the Decree required of Memphis Police Department officers. (ECF No. 151 at PageID 6266–67.) Moreover, the Court found the City had engaged in conduct that infringed on First Amendment-
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protected rights in violation of the Decree, which occurred only within the last year and a half. (Id.) Such facts prevent Alliance’s analysis from readily applying to this case.
Finally, the City of Chicago requested only a modification of the “periphery” of the decree, rather than requesting the abrogation of its core principles and restrictions. All. to End Repression, 237 F.3d at 800, 802. The City requests that the Court either vacate or modify § I of the Consent Decree. (ECF No. 227 at PageID 7699.) Vacating § I would detrimentally affect one of the core principles of the Decree. Removing that section would allow the City to accept and gather political intelligence at the behest of other government law enforcement agencies in ways contrary to the core principles of the Kendrick Consent Decree. In contrast to the City’s requested modification, the City of Chicago’s proposal in Alliance was limited to modifications of the mechanisms by which the Chicago Police Department could investigate terrorist groups, and the exception to the audit and authorization mechanism was limited only to the investigations of documented terrorist groups once the groups had “advocated for violence.” Id. at 802. Such a modification is much narrower than the City’s requested modification, which would either remove, or effectively remove, § I of the Kendrick Consent Decree. See infra at Sec. III.3.a.
In sum, the Court is not persuaded that the reasoning in Alliance should apply to the Kendrick Consent Decree and the City’s request for modification of § I of the Decree. The facts of Alliance and the facts of this case differ in critical ways. Moreover, as will be demonstrated infra, the Court does not find that the burdens imposed on the City by the Decree prevent it from practicing modern police techniques and from participating in intergovernmental agency task forces and crime-prevention programs.
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3. Intergovernmental Information Sharing and § I’s Burden on the City The City additionally provides five specific issues that it argues “trigger the City’s need for immediate modification or vacation of § I of the Consent Decree.” (ECF No. 227-1 at PageID 7715.) These include: (1) “the City’s need to receive and share intelligence with federal agencies”; (2) “the need to continue participation in the Joint Terrorism Task Force and to receive information from the Tennessee Fusion Center”; (3) “the need to continue participation in the Multi-Agency Gang Unit”; (4) “the need to continue participation in CrimeStoppers”; and (5) “the need to share information with the Shelby County Sheriff’s Department which operates security within Shelby County Schools.” (Id. at PageID 7715.) The City also argues that the Court, during the August 27, 2019 in-camera conference, “apparently acknowledged, in interaction with counsel for the City, that even if the intelligence gathered by the federal agency was related to a lawful criminal investigation, the City’s receipt of that information would violate the Consent Decree because the federal criminal investigation was not approved by the Director under Section G of the Consent Decree.” (ECF No. 244 at PageID 8158.) The Court construes this as the City’s attempt to demonstrate that changed factual circumstances warrant modification of the Decree. See Horne, 557 U.S. at 457. The Court will therefore address each of the City’s arguments, and the ACLU’s response to those arguments, in turn.
a. Information Sharing with Federal Authorities The City asserts that its concerns arise out of the Monitor’s interpretation of § I of the Decree in his August 21, 2019 correspondence with the City, and the Court’s consideration of these issues at the August 27, 2019 in-camera conference. (ECF No. 227-1 at PageID 7716; ECF No. 227-3.) The City argues that, under its reading of the Monitor’s proposed interpretation of §
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I, the Memphis Police Department would be required to fully vet all information it receives from
federal law enforcement agencies to ensure that the gathering of such information complied with
the Decree. (ECF No. 227-1 at PageID 7717–18.) This requirement, the City contends,
effectively prevents it from receiving any such information from federal law enforcement
agencies and forces the Memphis Police Department to operate with a “blind spot.” (Id. at
PageID 7717–18.) The City’s Motion specifically refers to the Monitor’s August 21, 2019
interpretation of § I of the Decree in his response to the City’s July 16, 2019 request for
authorization (“RFA”) to coordinate with the FBI and the Secret Service. (See ECF No. 227-3 at
PageID 7812–13.) The Monitor addressed two issues that, in his opinion, were raised by the
RFA:
First, to the extent that “coordinat[ing]” with the FBI or the Secret Service includes sharing personal information, the City may not coordinate with those agencies, or any others, in planning for the symposium. Section H of the Kendrick Consent Decree1 prohibits the City from “maintain[ing] personal information about any person unless it is collected in the course of a lawful investigation of criminal conduct.” § H(1). It also prohibits the City from sharing “personal information . . . collected in the course of a lawful investigation of criminal conduct” unless the recipient is “another governmental law enforcement agency then engaged in a lawful investigation of criminal conduct.” § H(2). I read this language to impose two applicable restrictions: (1) entirely against the sharing of personal information collected in any way other than via lawful criminal investigation (as such information may not be maintained in the first instance); and (2) against the sharing of personal information collected via lawful criminal investigation unless such sharing is with another governmental law enforcement agency and that agency already is engaged in a lawful criminal investigation. . . .
Second, the City may not “benefit from the Intel” acquired by the FBI, the Secret Service, or any other law enforcement agencies unless the City first verifies that the information was not acquired in any way that the consent decree prohibits the City from using. Section I of the Kendrick Consent Decree forbids the City to “encourage, cooperate with, delegate, employ or contract with, or act at the behest of, any local, state, federal or private agency, or any person, to plan or conduct any . . . activity . . . prohibited by th[e] decree.” I read this restriction to place the onus on the City to verify that any information it receives from governmental law enforcement agencies, non-law enforcement agencies, public and private entities,
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and individuals satisfies the same standards as information lawfully collected by the City itself.
(ECF No. 227-3 at PageID 7812–13.)
The Monitor further addressed the City’s concerns that “the [Kendrick] Consent Decree
might prohibit the City from receiving intelligence collected by other law enforcement agencies,
e.g. Shelby County Sheriff’s Department, TBI, or FBI, that would otherwise be prohibited by the
Consent Decree if obtained by the MPD.” (Id. at PageID 7813.) The Monitor provided the
following response:
The City’s receipt of intelligence collected by the Shelby County Sherriff’s Department, the TBI, the FBI, or other law enforcement agencies would violate the consent decree unless the City first verified that the information was not acquired in any way that the consent decree prohibits, as explained in the second section of my response to the first question above. In responding to this inquiry on a conference call on June 14, 2019, I stated that the City’s receipt of such intelligence would not violate the consent decree. Upon further review of the consent decree and the court’s orders in this litigation, I continue to believe that this answer is correct—but only so long as all intelligence properly is verified before the City receives it. If intelligence collected by governmental law enforcement agencies is not verified before the City receives it, then the City’s receipt of that intelligence would violate the consent decree. Moreover, if the City receives criminal intelligence from a governmental law enforcement agency for the purpose of conducting or supervising the MPD’s own investigation of criminal conduct, then the City’s receipt of that information also may be subject to the authorization and reporting requirements of § G of the consent decree.
(Id. at PageID 7813.)
The City’s Reply argues that during the August 27, 2019 in-camera conference, the Court
adopted the Monitor’s interpretation and required that any information received from other
agencies, “even if the intelligence gathered by the federal agency was related to a lawful criminal
investigation,” required full vetting in order to ensure the City’s compliance with the Decree.
(ECF No. 224 at PageID 8158.) Such an interpretation, the City argues, justifies modification of
§ I because the “[Memphis Police Department] cannot require that a federal agency, such as the
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FBI or DOJ, certify that the information it shares with [Memphis Police Department] was obtained in such a way that is not violative of the Consent Decree,” and that such a requirement would “have the effect of delaying the transmission of an urgent piece of intelligence that could stop, for example, a mass shooting.” (Id. at PageID 7719.) Moreover, the City argues that any restrictions imposed on the “open and contemporaneous sharing of information and intelligence with federal agencies will severely hamper the ability of federal law enforcement and the MPD to prevent potential crimes in the Memphis area.” (Id.) The City contends that compliance with the Decree will jeopardize its receipt of law enforcement funding from federal grants. (Id. at PageID 7720–22.) The City further justifies its argument for modification by asserting that the Court’s attributed interpretation of § I of the Decree, and the effect this interpretation would have on modern law enforcement information sharing, constitute changed circumstances warranting modification of § I under Rule 60(b)(5). (ECF No. 244 at PageID 8159.)
The ACLU responds by denying that the City has met its burden demonstrating that a change in factual circumstances warrants modification, as applied to all five of the informationsharing programs specified by the City in its Motion. (ECF No. 231 at PageID 7967.) First, the ACLU contends that joint operations and information sharing between law enforcement agencies are not a new phenomenon, and it argues that the City has failed to demonstrate how such information sharing has changed in the last 40 years to justify modification of the Decree. (Id. at PageID 7967.) Next, the ACLU asserts that the City has failed to provide any concrete evidence bearing out its claims that §§ I and G of the Decree requires significant expenditure of “scarce resources to ensure compliance” with the Decree. (Id. at PageID 7967–68.) It further contends that the City has failed to demonstrate how the Decree prevents all information sharing with federal law enforcement agencies. (Id. at PageID 7967–68.) The ACLU explains, “Information
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that is not political intelligence would be outside the scope of the Consent Decree and would require no or little vetting . . . Intelligence related to a true threat of violence or plans to commit a shooting, or any other criminal activity for that matter, would not be political intelligence and not fall within the prohibitions of the Decree.” (Id. at PageID 7969.) The ACLU further explains that only information constituting pure political intelligence would have to be outright refused. (Id.) Additionally, the ACLU compares the vetting of information to the vetting of unconstitutional confessions or unlawfully obtained evidence, and that the City has “not produced evidence of what additional burden would be added to vet information for compliance with the Consent Decree in addition to any normal procedures conducted with shared information.” (ECF No. 231 at PageID 7970.)
The Court first rejects the City’s assertion that it has either previously interpreted the language of § I of the Decree in the way attributed to it by the City, or that it definitively ruled on the matter during the August 27, 2019 in-camera conference. The Court made clear that it was not ruling on any matters during the in-camera conference outside of the “narrow” issue before it, namely the September 11, 2019 Law Enforcement Symposium. (ECF No. 232 at PageID 7894:7–15; 7996:4–22.) The City’s argument regarding the Court’s previous ruling on any such matters is therefore inaccurate and incorrect.
Moreover, the Court made clear that the Independent Monitor also serves as a special master, allowing him to make preliminary determinations on certain issues brought to his attention by the parties. (See Hearing Transcript, ECF No. 207, PageID 7819:16-25.) The Court stated at the April 23, 2019 Hearing that although the City’s “first step is always to go to the Monitor’s team and seek their input,” in the event that the City disagrees with the Monitor’s determination, the City must, “like an appeal,” file a motion or objection with the Court
34

requesting a final resolution of the disagreement. See Fed. R. Civ. P. 53(f)(2) (“A party may file objections to—or a motion to adopt or modify—the master’s order, report, or recommendations no later than 21 days after a copy is served, unless the court sets a different time.”). (Id.) The time period for the City to file a motion objecting to the Monitor’s interpretation of § I, and this interpretation’s effects on the various programs addressed by the City in its Motion, lapsed on September 19, 2019. Id. The City’s filing of the Motion for Modification on September 25, 2019 is therefore untimely. (ECF No. 227.) Despite the untimeliness of its objections, the Court will consider the merits of the City’s arguments.
The Court does agree with the City that the Monitor’s interpretation could plausibly be construed to require the vetting of all information received from federal law enforcement agencies to ensure the City’s compliance with the Decree. See supra at 31–33. The Court notes that the Monitor has appropriately proceeded with caution in interpreting § I’s limitations on intergovernmental information sharing, given the purposes of the Decree. The Court’s reading of the Monitor’s August 21, 2019 interpretation of § I’s limitations differs from the City’s reading of the Monitor’s interpretation. The Monitor specifically states that under the requirements of § I of the Decree, “[t]he City’s receipt of intelligence collected by . . . other law enforcement agencies would violate the consent decree unless the City first verified that the information was not acquired in any way that the consent decree prohibits, as explained in the second section of my response to the first question above.” (ECF No. 227-3 at PageID 7813 (emphasis added).) The Monitor’s Second Section of his response to the City’s first question specifically provides that the “City may not ‘benefit from the Intel’ acquired by . . . any other law enforcement agencies unless the City first verifies the information was not acquired in any way that the consent decree prohibits the City from using.” (Id. at PageID 7812 (emphasis added).)
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The Monitor’s reference to “Intel” is significant. Specifically, this language refers to the City’s gathering and maintenance of political intelligence, which the Court defined in its Order and Opinion. (See ECF No. 151 at PageID 6256–58.) This reading of the meaning of “Intel” is supported by the Monitor’s summary of the types of information that cannot be gathered, or received, by the City per the terms of § H of the Decree. (Id. at PageID 7812.) This reading is further supported by the Monitor’s continued reference to “intelligence” in his description of the types of information received from federal law enforcement agencies that would require vetting under §§ I and G of the Decree. (See id. at PageID 7812–13.)
Therefore, reading these two sections of the Monitor’s August 21, 2019 interpretation of § I together, the Court disagrees with the City’s broad reading of the Monitor’s interpretation of § I’s limitations. The better reading of the Monitor’s interpretation, which better comports with the purposes and protections of the Kendrick Consent Decree, would require the City to reject outright only information constituting political intelligence that is unrelated to any legitimate law enforcement activities, as is prohibited by § H of the Decree. Section I further requires the City to vet only information that implicates § G of the Decree, that is, information gathered as part of a legitimate law enforcement investigation that incidentally, or may incidentally, implicate protected First Amendment activities.
The Kendrick Consent Decree only prohibits the City from engaging in the collection, maintenance, and dissemination of political intelligence. (Case No. 2:76-cv-00449, ECF No. 16 at §§ C, H, J.) Under the Court’s reading of § I, the Decree does not prohibit the police from receiving information gathered as the result of legitimate criminal investigations, supported by reasonable suspicion or probable cause, and unrelated to any protected First Amendment activities. Nothing in the Consent Decree would prohibit, to use the City’s example, the City’s
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acceptance of credible information regarding the threat of a mass shooting. (See ECF No. 227-1 at PageID 7704.) Nor does the Monitor’s August 21, 2019 interpretation suggest otherwise. (See ECF No. 227-3 at PageID 7811–12.)
Although § I does not require the City to reject all information received in the course of legitimate law enforcement investigations but that implicate, or may implicate, First Amendment-protected activities or political intelligence, § I may prevent the City from receiving such information from federal law enforcement agencies unless it engages in the review and authorization process required by § G of the Decree. The Court noted in its October 26, 2018 Order and Opinion that many criminal investigations present a “gray area” and require further review and authorization as contemplated by § G of the Decree. (See ECF No. 151 at PageID 6257, n.6.) That being said, the City has failed to provide the Court with any evidence to support its claim that all the information it receives from federal law enforcement agencies would potentially implicate First Amendment-protected activities, requiring substantial vetting pursuant to § G’s authorization process. Nor is the Court persuaded that the City’s review of such information, as required by § G, would be so onerous as to delay or prevent the City from acting on credible threats to public safety. The City has failed to provide evidence demonstrating that the authorization procedures mandated by § G of the Decree would impose an undue burden on the City and prevent it from receiving information from federal agencies, nor has the City provided concrete examples of how such a process would delay the Memphis Police Department’s response time to serious public safety threats.
Additionally, the City attached as Exhibit G to its Motion the Department of Justice’s Criminal Intelligence Operating Policies, which set out limitations on the sharing of criminal intelligence among federal law enforcement agencies and state and local law enforcement
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agencies that receive federal funding. See 28 C.F.R. § 23.20(b). The Code specifically provides, “A project shall not collect or maintain criminal intelligence information about the political, religious or social views, associations, or activities of any individual or any group . . . unless such information directly relates to criminal conduct or activity and there is reasonable suspicion that the subject of the information is or may be involved in criminal conduct or activity.” Id. The City, as a recipient of federal law enforcement funds, must already comply with these requirements, absent § G of the Decree’s authorization process. See 28 C.F.R. § 23.20(b). The City must therefore already comply with provisions of the Code of Federal Regulations that closely track the language of the Kendrick Consent Decree as part of its receipt of federal funding. Further, any federal agency or Tennessee state law enforcement entity that receives federal funds must also comply with such restrictions, making it even less likely that information shared with the Memphis Police Department would require onerous vetting.
Finally, the City has not provided evidence demonstrating how compliance with § I of the Decree would jeopardize the City’s receipt of federal funding, nor has the City demonstrated that § I will prevent it from using any and all information provided to the Memphis Police Department by federal law enforcement agencies. The anti-commandeering principle and federalism-derived limitations on Congress’s Spending Power also likely prevent the federal government from withholding valuable law enforcement grants because of the City’s continued need to comply with a federal court order. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 577–78 (2012); Printz v. United States, 521 U.S. 898, 933 (1997); New York v. United States, 505 U.S. 144, 161, 180 (1992).
In sum, the Court finds that the City’s arguments regarding the asserted detrimental effect § I of the Kendrick Consent Decree has, and will continue to have, on the City’s continued
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participation in federal law enforcement information sharing programs do not support modification under Rule 60(b)(5). The Court does not read § I of the Decree to require the City to reject all information received by federal law enforcement agencies unless the City engages in extensive vetting of such information pursuant to § G of the Decree. Section I only outright prohibits the City’s receipt of political intelligence as defined in the Court’s October 26, 2018 Order and Opinion (ECF No. 151), and it only requires the vetting of information received in the course of police investigations that incidentally implicate First Amendment-protected activities. See supra at 34–37. It does not prevent the City from receiving, and acting upon, information concerning ongoing or imminent criminal activities or threats that do not implicate any political intelligence or First Amendment-protected activities.
b. The City’s Participation in the Joint Terrorism Task Force and the Tennessee Fusion Center
The City relies on the same arguments already addressed by the Court, see supra at Sec. III.3.a., to support its assertion that the Kendrick Consent Decree prevents its continued participation in both the FBI’s Joint Terrorism Task Force and the Tennessee Fusion Center. (ECF No. 227-1 at PageID 7723–25.) While the Court recognizes that such groups serve important public purposes, especially in their successful prevention of terrorist operations at home and abroad, the Court is not persuaded by the City’s arguments that §§ I and G of the Kendrick Consent Decree impede the City’s ability to share information with and participate in these joint law enforcement programs. Nor is the Court persuaded by the City’s assertion that the Kendrick Consent Decree will be “putting not only the local public safety at risk, but [will] jeopardiz[e] the safety of the greater region, and, potentially, the nation.” (Id. at PageID 7724.)
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For the reasons stated above, the City has failed to provide evidence demonstrating that § I of the Decree prohibits the City from receiving information gathered in the course of legitimate law enforcement investigations aimed at preventing terrorism in Tennessee and across the Nation. Further, contrary to the City’s assertion, § I does not require the City to reject all information received from the Joint Terrorism Task Force or the Tennessee Fusion Center, unless it reviews any and all such information pursuant to § G of the Decree’s review and authorization procedure. Even assuming that the City was correct and the Decree prevented its participation in these two programs, the City’s inability to use political intelligence would not prevent the FBI, the Department of Homeland Security, the Department of Immigration and Customs, or other members of the Joint Terrorism Task Force and the Tennessee Fusion Center from making use of such information, assuming they could do so without violating either the U.S. Constitution or federal statutes or regulation. But see 28 C.F.R. § 23.20(b). It would therefore not be correct to argue that the Decree prevents the City and other law enforcement agencies from thwarting credible terrorist threats or other significant public safety concerns.
Thus, for the reasons already stated by the Court, the City has not met its burden of demonstrating that a change in factual circumstances with regard to the City’s participation in the Joint Terrorism Task Force or the Tennessee Fusion Center make the Kendrick Consent Decree inequitable, by placing an undue burden on the City or by significantly threatening public safety.
c. The City’s Participation in the Multi-Agency Gang Unit The City applies the same arguments as discussed above, see supra at Sec. III.3.a., III.3.b., to support its contention that the Decree prevents its participation in the Multi-Agency Gang Unit. (ECF No. 227-1 at PageID 7727.) The City argues that it can no longer participate in the Multi-Agency Gang Unit because “the Consent Decree, as interpreted by the Monitor,
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prohibits [the Memphis Police Department]’s receipt of intelligence from another law enforcement agency unless vetted prior to its receipt to ensure it was obtained in a manner not violative of the Consent Decree.” (Id.) For the same reasons as discussed above in connection with the other joint law enforcement operations, the Court finds that the City has not demonstrated that changed circumstances with respect to the City’s participation in the MultiAgency Gang Unit require modification of § I of the Kendrick Consent Decree. Nor does the Court find that § I prohibits the City’s receipt of all information from the Multi-Agency Gang Unit unless it engages in the review and authorization process as required by § G of the Decree.
d. The City’s Participation in CrimeStoppers The City applies similar logic as it employed with respect to its participation in the already-addressed law enforcement programs to the CrimeStoppers program, arguing that the Kendrick Consent Decree effectively prevents its continued participation in the program. The City’s argument relies on its reading of the Monitor’s August 21, 2019 interpretation of § I of the Decree, and the Monitor’s August 26, 2019 application of that interpretation to the City’s participation in the CrimeStoppers program. (ECF No. 227-1 at PageID 7728–29.) On August 23, 2019, the City submitted an RFA to the Monitor to allow the City to continue its participation in the CrimeStoppers program. (ECF No. 227-4 at PageID 7836.) The Monitor responded as follows: This request implicates § I of the consent decree. Section I forbids the City to “encourage, cooperate with, delegate, employ or contract with, or act at the behest of, any local, state, federal or private agency, or any person, to plan or conduct any . . . activity . . . prohibited by th[e] decree.” As stated in the August 21, 2019, Coordinate Opinion, I read this restriction to place the onus on the City to verify that information it receives from governmental law enforcement agencies, nonlaw enforcement agencies, public and private entities, and individuals satisfies the same standards as information lawfully collected by the City itself.
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Information collected by civilian residents of the City, shared with CrimeStoppers, and then shared with the [Memphis Police Department] ordinarily would not implicate the First Amendment. The First Amendment restrains only the government, and not private individuals or organizations. Thus, the practices of private individuals and organizations do not offend the First Amendment even when those same practices, employed by the government, would violate it.
Section I of the decree, however, forbids the City to coordinate both with governmental entities—“any local, state, [or] federal” entity—and with any “private agency, or any person, to plan or conduct any . . . activity . . . prohibited by th[e] decree.” As a result, the practices of individuals or organizations may offend the consent decree if the City “encourage[s], cooperate[s] with, delegate[s], employ[s] or contract[s] with, or act[s] at the behest of” such private individuals or organizations “to plan or conduct any . . . activity . . . prohibited by th[e] decree.” § I.
The only way to ensure that the City does not offend the consent decree in working with private individuals or organizations is to require the same verification process for information received from private individuals and organizations as I understand the consent decree to impose for receiving information from the FBI, the Secret Service, or any other law enforcement agencies. (See generally August 21, 2019, Coordinate Opinion.) The City’s ability to receive information from private citizens, either through CrimeStoppers or directly, is thus subject to verification that the information satisfies the same standards as information lawfully collected by the City itself.
(ECF No. 227-4 at PageID 7835–36.)
Based on the Monitor’s response, the City contends that “[i]t would be literally
impossible for the City to determine whether the information it receives from anonymous tipsters
via CrimeStoppers was obtained in such a way that does not violate the Consent Decree,”
because such vetting would require the City to determine the identity of the tipster, thereby
undercutting the tipster’s anonymity which, the City asserts, is a vital part of the program’s
success. (Id.) The City further asserts that such a result would “effectively end the program,
resulting in fewer prosecutions of crimes.” (Id.) The ACLU argues in its Response that the City
fails to demonstrate “what additional burden would be added to vet information for compliance
with the Consent Decree in addition to any normal procedures conducted with shared
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information . . . Instead, the City claims that these burdens exist and that they are insurmountable.” (ECF No. 231 at PageID 7970.)
The Monitor’s August 26, 2019 letter was correct in stating that tips from private individuals do not generally implicate the First Amendment, as such action is not “state action” triggering the Amendment’s protections. See, Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). The Monitor was also correct that the receipt of information from private, non-law enforcement individuals and entities would implicate § I of the Consent Decree.
However, the Court does not agree with the City’s assertion that § I, as it is currently written, makes it “literally impossible” for the City to continue its participation in the CrimeStoppers program. The City has not demonstrated how much information received via CrimeStoppers would require vetting and authorization as outlined by § G of the Decree. Nor is the Court persuaded by the City’s argument that the Monitor’s interpretation of § I requires the Memphis Police Department to review and authorize the use of every tip it receives via CrimeStoppers. As stated above, see supra at Sec. III.3.a, although the Monitor’s cautious application of his August 21, 2019 interpretation of § I’s limitations to the Memphis Police Department’s use of information received by it via CrimeStoppers was appropriate, the Court does not read § I to require the City to vet every tip it receives via CrimeStoppers. See supra at Sec. III.3.a. The Kendrick Consent Decree only bars the collection, maintenance, and dissemination of political intelligence by the City. (Case No. 2:76-cv-00449, ECF No. 16.) Only political intelligence received via CrimeStoppers that has no relevant connection to legitimate law enforcement ends must be outright rejected by the City. And while some criminal investigations represent a gray area, thus requiring additional vetting as to the information’s source, the Court is not persuaded that an anonymous tip providing the Memphis Police
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Department with information regarding imminent or ongoing criminal activities would require any significant vetting under § G of the Decree. Review and authorization pursuant to § G would only be required if the tip, which provided information of ongoing or threatened criminal activity or conduct, also included or referenced political intelligence as defined, or otherwise incidentally implicates, or may incidentally implicate, First Amendment-protected activities. The City has not presented evidence that any of the tips it receives via the CrimeStoppers program fall into the latter category of information requiring vetting pursuant to § G of the Decree.
In sum, § I of the Decree only prohibits the City from receiving information from outside law enforcement or private entities that would otherwise violate the Consent Decree. Section I only outright prohibits the City’s receipt of political intelligence or information relating to First Amendment-protected activities gathered as a result of investigations lacking any legitimate law enforcement purpose. Vetting and authorization pursuant to § G would only be required for tips received via CrimeStoppers that incidentally implicate First Amendment-protected activities or political intelligence. However, because the City has failed to provide any evidence demonstrating that most if not all of the information it receives via CrimeStoppers would incidentally implicate protected First Amendment activities, the Court finds that the City has failed to demonstrate how § I of the Decree so unduly burdens its participation in the CrimeStoppers program as to prevent the Memphis Police Department’s continued participation in the program. Therefore, the Court finds that the City has failed to meet its burden that changed factual circumstances with regard to the City’s participation in the CrimeStoppers program warrants immediate modification of § I of the Kendrick Consent Decree pursuant to Rule 60(b)(5).
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e. The Memphis Police Department’s Sharing of Information with Shelby County Sheriff’s Department and Shelby County Schools
The City argues that the Decree prevents its continued participation in several programs aimed at assessing and preventing security threats within the Shelby County School systems. (ECF No. 227-1 at PageID 7729–30.) Relying on similar arguments raised with respect to § I’s effect on the City’s participation in CrimeStoppers, the City contends that the anonymity of student tipsters, which is of critical importance to information sharing programs led by the Shelby County Sheriff’s Department, prevents the Memphis Police Department from “determining if the intelligence contained in the tips was collected in a permissible manner under the Consent Decree.” (Id. at PageID 7729–30.) The City contends that the investigation review and authorization requirements of § G of the Decree, as applied to these programs by § I, effectively prevent the City from assisting with such programs as well as other similar anonymous, information-gathering programs such as the “Trust Pays” program, an offshoot of CrimeStoppers, and the Department of Homeland Security’s “If You See Something, Say Something” campaign. (Id. at PageID 7729–31.)
The Court finds that its conclusions with respect to the CrimeStoppers program and other federal and state law enforcement information-sharing programs apply equally to the City’s concerns regarding ongoing information-sharing policies with the Shelby County Sheriff’s Office and Shelby County Schools. See supra at Sec. III.3.a–III.3.d. The Court reiterates that the Decree only prevents the City from collecting, maintaining, and disseminating political intelligence. (Case No. 2:76-cv-00449, Kendrick Consent Decree, ECF No. 16.) It does not prevent the City’s use of information obtained as a result of legitimate law enforcement activities that do not implicate political intelligence or information regarding First Amendment-protected
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activities. (Id.) Although, as stated previously, some investigations present gray areas that may require vetting in compliance with § G of the Decree in situations where legitimate police investigations incidentally implicate the gathering of political intelligence or other First Amendment-protected activities, the City has not presented evidence that any of the tips received from Shelby County students actually fall into this gray area. Nor is the Court persuaded that the review and authorization procedure imposed by § G of the Decree would be more burdensome than vetting processes already used to assess the validity of a student tip. Additionally, the City has not demonstrated how certain information detailing potential criminal or public safety threats in the Shelby County Schools, such as, to use the City’s example, a school shooting, would implicate § I, and therefore § G, of the Kendrick Consent Decree.
For the reasons stated above, the Court finds that the City has failed to demonstrate how § I, and therefore § G, of the Decree would be so unduly burdensome as to prevent the City’s continued participation in any of the law enforcement information-sharing programs specified by the City. The Court therefore finds that § I does not render the Decree inequitable so as to justify its vacation or modification under Rule 60(b)(5).
Moreover, the Court notes that the City has provided a proposed modification to the language of § I of the Decree. (ECF No. 244 at PageID 8159–60.) If a party meets its burden demonstrating that Rule 60(b)(5) warrants modification of a consent decree, the court must still determine whether “the proposed modification is suitably tailored to the changed circumstances.” Rufo, 502 U.S. at 391. Even assuming the City can meet its burden under Rule 60(b)(5), such a significant modification as proposed by the City in its Reply should be responsive to a change in factual circumstances. The City’s modified § I would read as follows:
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Restrictions on the Use of Third Parties as Surrogates [changed from “Restrictions on Joint Operations”]2
The defendants and the City of Memphis shall not encourage, delegate, or employ any local, state, federal or private agency, or any person, to plan or conduct any investigation, activity or conduct prohibited by this Decree. The City may receive information from local, state, federal, and private agencies, or from any person, as long as the City of Memphis does not initiate the conduct giving rise to the gathering of the intelligence.
(ECF No. 244 at PageID 8159–60; compare Case No. 76-cv-00449, Kendrick Consent Decree,
ECF No. 16 at PageID 19:§ I.)
The City’s requested modification, which would allow the use of political intelligence
that is gathered by third parties, has the potential to eviscerate the core goals of the Kendrick
Consent Decree. Any modification would need to be carefully crafted after a thorough review of
evidence and a finding of sufficiently changed circumstances to compel a modification. A
change would need to achieve the goals of the Kendrick Consent Decree while providing the
City and the Memphis Police Department flexibility to engage in the sharing of information for
legitimate law enforcement purposes.
A Rule 60(b)(5) motion requesting modification without the full consent of all the parties
subject to the decree generally requires discovery and an evidentiary hearing. Wayne Cty., 369
F.3d at 511–12 (“Recognizing the significance of modifying the terms of a consent decree over
the objection of one of the parties, this Court has required district courts to hold a ‘complete
evidentiary hearing’ and to make appropriate findings of fact before making such modifications.”
Id. at 512 (quoting Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1017 (6th Cir.
2 The current language is as follows: I. Restriction on Joint Operations The Defendants and the City of Memphis shall not encourage, cooperate with, delegate, employ or contract with, or act at the behest of, any local, state, federal or private agency, or any person, to plan or conduct any investigation, activity or conduct prohibited by this Decree.
47

1994))); but see Wayne Cty., 369 F.3d at 512 (“When a motion does not raise a serious challenge to the consent decree and merely appears to be a ‘post-judgment attempt by a party to escape from the obligations it had voluntarily assumed,’ it may well be appropriate for a trial court to reject the motion without holding a formal hearing.” (quoting Del. Valley Citizens’ Council for Clean Air v. Pennsylvania, 674 F.2d 976, 981 (3d Cir. 1982)). The Sixth Circuit has recognized only limited exceptions to these requirements. See Gonzalez v. Galvin, 151 F.3d 526, 534 (6th Cir. 1998) (recognizing an exception to the hearing requirement for modification when “the parties’ briefs clearly set forth the relevant facts and arguments of a case such that a hearing would not add anything to the briefs, and where the court has sufficient evidence before it to make detailed factual findings”).
The City requests an immediate modification of the Kendrick Consent Decree but has not requested an evidentiary hearing. (ECF No. 227-1.) The parties previously agreed to stay all modification proceedings, and the Court entered an Order staying such proceedings until January 2, 2020, when the parties are to appear for a telephonic status conference to discuss the City’s previous Motion for Modification and the Modification Scheduling Order. (ECF No. 227-1 at PageID 7703; Order Staying Proceedings, ECF No. 178.) The Court is not inclined to grant modification in the absence of a full evidentiary hearing, and the movant has not provided sufficient evidence for the Court to decide in favor of modification in the absence of an evidentiary hearing. See Gonzalez, 151 F.3d at 534. Although the Court may deny the current Motion without an evidentiary hearing, see Wayne Cty., 369 F.3d at 512, the Court in this case should not grant modification without first holding an evidentiary hearing following a period of discovery by the parties.
48

The parties will therefore appear for the telephonic status conference on January 2, 2020, to discuss a discovery timeline and schedule for an evidentiary hearing on the issue of modification of the Kendrick Consent Decree. IV. CONCLUSION
For the foregoing reasons, the City’s Motion for Immediate Modification of the Kendrick Consent Decree is DENIED. The parties shall appear for a telephonic status conference on January 2, 2020, to discuss the schedule for any future evidentiary hearing on the City’s Motion for Modification.
SO ORDERED, this 13th day of November, 2019. /s/ Jon P. McCalla JON P. McCALLA UNITED STATES DISTRICT COURT JUDGE
49

 
 Case 2:17-cv-02120-JPM-jay Document 256 Filed 11/21/19 Page 1 of 18 PageID 8492

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ACLU OF TENNESSEE, INC.,
Intervening Plaintiff, v. CITY OF MEMPHIS, TENNESSEE
Defendant.

)

)

)

)

)

No. 2:17-cv-02120-JPM-jay

)

)

)

)

)

NOVEMBER 2019 QUARTERLY REPORT OF THE INDEPENDENT MONITOR

Edward L. Stanton III (TN BPR #18904) BUTLER SNOW LLP 6075 Poplar Avenue, 5th Floor Memphis, TN 38119 Telephone: (901) 680-7200 Facsimile: (901) 680-7201 Email: Edward.Stanton@butlersnow.com
Independent Monitor

Case 2:17-cv-02120-JPM-jay Document 256 Filed 11/21/19 Page 2 of 18 PageID 8493
TABLE OF CONTENTS I. INTRODUCTION & EXECUTIVE SUMMARY ............................................................. 1 II. OVERVIEW OF THE MONITORING TEAM’S ACTIVITIES....................................... 1 III. THE COURT’S DIRECTIONS TO THE MONITORING TEAM AT THE
APRIL AND AUGUST 2019 HEARINGS ........................................................................ 3 IV. REAL-TIME REQUESTS FOR AUTHORIZATION ....................................................... 6 V. PUBLIC ENGAGEMENT................................................................................................. 7 VI. CONCLUSION................................................................................................................. 12
APPENDIX OF DOCUMENTS REFERENCED IN THIS REPORT......................................... 13

Case 2:17-cv-02120-JPM-jay Document 256 Filed 11/21/19 Page 3 of 18 PageID 8494

I. INTRODUCTION & EXECUTIVE SUMMARY This Third Quarterly (Q3) Report follows four prior reports by the Monitoring Team: • Interim Report (ECF No. 197); • First Quarterly (Q1) Report (ECF No. 205); • Second Quarterly (Q2) Report (ECF No. 219); and • Q2 Supplemental Report (Q2 Supplement) (see Exhibit 1—submitted on August 26, 2019, but not yet docketed).
It fulfills four goals. First, this Q3 Report provides an overview of the Monitoring Team’s activities since August 26, 2019, the date that the team submitted its Q2 Supplement to the Court (Ex. 1). Second, this report addresses the discrete tasks that the Court directed the Monitoring Team to complete at hearings on April 23, 2019, and August 27, 2019, concerning the progress of the Monitoring Team’s efforts to help restore Defendant City of Memphis (City) to compliance with the Kendrick Consent Decree.1 Third, the report identifies the various requests for authorization (RFAs) from the City to which the Monitoring Team has responded. Fourth and finally, the report discusses the Monitoring Team’s community engagement efforts since August 26, 2019.
II. OVERVIEW OF THE MONITORING TEAM’S ACTIVITIES Since the submission of its Q2 Supplement on August 26, 2019, the Monitoring Team has done the following: • Exchanged more than 1,000 internal and external emails.

1

The decree is ECF No. 3 in Case No. 2:76-cv-000449 before this Court and has been

made publicly available on the Monitoring Team’s website, www.memphispdmonitor.com. All

docketed and unsealed reports of the Monitoring Team and selected Orders of the Court are

available on www.memphispdmonitor.com.

1

Case 2:17-cv-02120-JPM-jay Document 256 Filed 11/21/19 Page 4 of 18 PageID 8495

• Conducted 12 weekly Monitoring Team conference calls and additional ad hoc calls as necessary; participated in more than a dozen weekly and ad hoc calls with the City; and joined scheduled and ad hoc calls with Intervening Plaintiff ACLU of Tennessee, Inc. (ACLU-TN).
• Conducted a conference call with the City and the ACLU-TN on October 21, 2019.
• Conducted in-person Monitoring Team meetings on August 27, 2019, and November 7, 2019.
• Met in-person with MPD Deputy Chief Don Crowe, whose responsibilities include overseeing information technology, at the Real Time Crime Center regarding the cameras at City Hall.
• Tracked more than 650 hours of Monitoring Team time. (See, e.g., ECF Nos. 226, 242, 253.)
• Hosted a second community engagement forum on November 7, 2019, at Mississippi Boulevard Christian Church, 70 N. Bellevue Blvd., Memphis, TN 38104.2
• Conferred via email, telephone, and www.memphispdmonitor.com with more than a dozen community members.3
• Met in-person with members of the Memphis Shelby County Crime Commission and the Memphis Interfaith Coalition for Action and Hope (MICAH).
• Consulted with the Federal Bureau of Investigation (FBI) regarding national social media policies.
• Interviewed three candidates to facilitate the focus groups in this matter. (See, infra, Exhibit 4.)

2

The forum was live-streamed on www.memphispdmonitor.com and remains available for

viewing on YouTube (link here).

3

Not all of these community members have given the Monitoring Team permission to

identify them by name. To facilitate transparency while preserving confidentiality, the team

identifies those community members by initials only: K.H., D.M., D.R., F.N., H.D., C.H., J.M.,

E.L., G.M., D.T., C.B., M.G., J.H.

2

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• Participated in a FaceBook Live session with Jimmy Hollingsworth on November 6, 2019.4

• Participated in interviews with local media.5

• Submitted to the Court on September 26, 2019, and October 4, 2019, statements from community members present at the August 27, 2019, hearing.

• Provided real-time responses to RFAs for discrete MPD activity or clarifications regarding the same on ten occasions: August 29, 2019 (2); September 6, 2019; October 4, 2019; October 11, 2019; October 16, 2019; October 21, 2019; October 23, 2019; and November 9, 2019; November 13, 2019.6

• Raised with the Court on October 4, 2019, and, at the Court’s direction, shared with the ACLU-TN later that same day, an issue brought to the Monitoring Team’s attention by community members.

These and ongoing actions by the Monitoring Team are described in greater detail where

relevant to the discrete tasks, RFAs, and community-engagement efforts discussed below.

III. THE COURT’S DIRECTIONS TO THE MONITORING TEAM AT THE APRIL AND
AUGUST 2019 HEARINGS
This Court has held two hearings on the status of the Monitoring Team’s efforts to help

restore the City to compliance with the Kendrick Consent Decree, on April 23, 2019, and August

27, 2019. At the April hearing, the Court Ordered the Monitoring Team to submit the following

documents: (1) by May 7, 2019, a list of goals to be accomplished within ninety days; (2) by

May 23, 2019, a joint public engagement plan with the ACLU-TN and the City; and (3) by July

4

Mr. Hollingsworth expressly consented to the use of his name in the Monitoring Team’s

reports.

5

See, e.g., “Retro Local: The History of the Memphis Kendrick Consent Decree” (link

here); “Residents Leave with Unanswered Questions Following Memphis Police Department

Monitoring Team Meeting” (link here); “As MPD Crafts Social Media Surveillance Policy,

Activists Want Assurances” (link here).

6

The Monitoring Team also received an RFA from the City on November 12, 2019, to

which the team has not yet responded.

3

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24, 2019, a Q2 Report that tracked the parties’ and the Monitoring Team’s “progress towards the accomplishment of established goals.” (Order, April 23, 2019, ECF No. 203 at 2.) The ninetyday goals (ECF No. 208), joint public engagement plan (ECF No. 211), and Q2 Report (ECF No. 219) all were submitted as Ordered.
At the August hearing, the Monitoring Team identified three “next steps”: (1) creating a compliance plan for the City; (2) implementing the compliance plan following an audit of the Memphis Police Department (MPD)’s investigative policies, protocols, and training guidelines; and (3) putting together community focus groups. (Order, Sept. 5, 2019, ECF No. 225.) Additionally, the Court set November 21, 2019, as the date for a third hearing in this matter and directed the Monitoring Team to be prepared at that time to discuss the social-media monitoring policies of various federal agencies as a supplement to the survey of police department policies that the Monitoring Team submitted as Exhibit 6 to the Q2 Report (ECF No. 219-1, PageID # 7564). The Monitoring Team’s progress on each of these issues is as follows:
• Creating a Compliance Plan: Consistent with a separate Order of the Court (ECF No. 216), the Monitoring Team submitted a proposed Audit & Compliance Plan for the MPD on August 2, 2019.7 (See Exhibit 2 (the plan has not yet been docketed).)

• Auditing MPD’s Policies, Protocols, and Training Guidelines: On August 26, 2019, the Monitoring Team submitted as Exhibit A to its Q2 Supplement (Ex. 1) its final responses to the City’s outstanding questions regarding the policies and procedures that the City originally submitted to the Court on January 14, 2019.8 (See ECF No. 152.) The Monitoring Team subsequently notified the Court via letter on October 23, 2019 (Exhibit 3), that all outstanding issues except one regarding those policies and procedures either had been resolved or separately raised with the Court. The Court’s recent Order denying the City’s motion for immediate modification of the Kendrick

7

The plan was referenced as Exhibit 4 to the Q2 Report (see ECF No. 219, PageID # 7582

& n. 9, PageID # 7588; ECF No. 219-1, PageID # 7552) but submitted separately on August 2,

2019.

8

Draft, but incomplete, responses were submitted to the Court as Exhibit 3 to the Q2

Report. (ECF No. 219-1, PageID # 7521 (partially filed under seal).)

4

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Consent Decree (ECF No. 250; see ECF No. 227) likely resolves that remaining issue.
• Focus Groups: On October 8, 2019, the Monitoring Team requested via letter (Exhibit 4), and with the consent of the City and the ACLU-TN, additional time to complete the focus-group portion of the joint public engagement plan (ECF No. 211). The Court granted that request on October 23, 2019. (ECF No. 241.) On October 29, 2019, the Monitoring Team formally retained Dr. Sheila Peters of Fisk University to conduct and analyze the focus groups. (See Expert Retention Letter, attached as Exhibit 5.) Dr. Peters (bio here) is a licensed clinical psychologist and professor, trained at Vanderbilt University, whose expertise specifically includes biased-based policing and community perceptions. She has proposed a schedule, consistent with the Court’s Order (ECF No. 241), that will culminate in the submission of a final report regarding the focus groups in April 2020. (See Ex. 5, Exhibit A.)
• Federal Social-Media Monitoring Policies: Included as Exhibit 6 to this Q3 Report is a chart, similar to Exhibit 6 to the Q2 Report, that surveys the social media policies of the following federal agencies:
o Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF); o Drug Enforcement Administration (DEA); o Department of Homeland Security (DHS); o Federal Bureau of Investigation (FBI); o Federal Emergency Management Agency (FEMA); o Internal Revenue Service Criminal Investigations (IRS); o United States Marshals Service (Marshals Service); o United States Postal Inspection Service (Postal Inspection Service); o United States Secret Service (Secret Service); and o Social Security Administration (SSA).
(Ex 6.) The exhibit also includes a cover memorandum that explains the methodology of the survey. (Ibid.)
The Court also invited more direct public participation at the August hearing by
requesting that interested community members submit statements about their concerns to the
Court through the Monitoring Team. The Monitoring Team submitted all such statements that it
received, from six community members in total, on September 26 and October 4, 2019. (See
Letters to the Court, attached as Exhibit 7.)
5

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IV. REAL-TIME REQUESTS FOR AUTHORIZATION At the hearing on April 23, 2019, the Court expressly authorized Mr. Stanton qua “special master” to authorize or prohibit specific action by the MPD.9 Based on that authorization, Mr. Stanton has responded to RFAs for specific action on ten occasions since August 26, 2019, granting some, denying others, and clarifying the rest: August 29, 2019 (2); September 6, 2019; October 4, 2019; October 11, 2019; October 16, 2019; October 21, 2019; October 23, 2019; and November 9, 2019; November 13, 2019.10 Rather than duplicate discussion of the issues raised by the RFAs, this report attaches the relevant correspondence for each RFA as follows: • August 29, 2019 (Exhibit 8).
• August 29, 2019 (Exhibit 9). • September 6, 2019 (Exhibit 10). • October 4, 2019 (Exhibit 11). • October 11, 2019 (Exhibit 12). • October 16, 2019 (Exhibit 13).

9

As the Court explained,

The first step is always to go to the monitor’s team and seek their input, but sometimes the monitor may say, on this issue we need to petition the Court on it, and that’s fine. And, then, sometimes, [the City] may disagree, either one of the parties in this case might disagree with either the resolution—or the resolution, and so, in essence, it’s like an appeal, but you just need to say we request the Court to review X, and we will.

(Hr’g Tr., ECF No. 207, PageID # 7189: 16-25.)
10 The Monitoring Team also received an RFA from the City on November 12, 2019, to which the team is in the process of responding.

6

Case 2:17-cv-02120-JPM-jay Document 256 Filed 11/21/19 Page 9 of 18 PageID 8500
• October 21, 2019 (Exhibit 14). • October 23, 2019 (Exhibit 15).
• November 9, 2019 (Exhibit 16). • November 13, 2019 (Exhibit 17). Similarly, on October 4, 2019, the Monitoring Team raised with the Court, and, at the Court’s direction, shared with the ACLU-TN later that same day, an issue brought to the Monitoring Team’s attention by community members. That issue was the MPD’s handling of a Labor Day parade. Mr. Stanton had sought and obtained from the City an explanation of the MPD’s conduct, after which he felt that the Court should be made aware of that conduct. All correspondence regarding that issue is included with this Q3 Report as Exhibit 18.
V. PUBLIC ENGAGEMENT As the Court is aware, in the Monitoring Team’s ninety-day goals (see ECF No. 208, PageID No. # 7217) and joint public engagement plan with the City and the ACLU-TN (see generally ECF No. 211), the team identified four kinds of community-engagement efforts that would consist of (1) a public website, (2) media exposure, (3) community engagement forums, and (4) focus groups. As to the first, second, and fourth efforts: • The public website—www.memphispdmonitor.com—was submitted to the Court on June 18, 2019, for review; launched on July 2, 2019; and announced in print and digital media via press release. The Monitoring Team has continued to update the website, posting there the docketed and unsealed reports that the team has submitted to the Court, as well as selected Court Orders that have been issued, unsealed, or later released to the public. The team also posts upcoming events on the “Key Dates” page of the site, in tandem with press releases, email blasts, and individual phone calls to community members with whom the Monitoring Team has met one-on-one.
7

Case 2:17-cv-02120-JPM-jay Document 256 Filed 11/21/19 Page 10 of 18 PageID 8501

• Team members also have continued to participate in interviews with local media.11

• Section III, above, details the Monitoring Team’s progress regarding the timeline for focus groups.

One-on-one meetings with community members and groups, as well as contact

information and distribution lists for better communication with community members, have

come out of the remaining community-engagement effort: community forums. The Court will

recall that several frustrations were expressed by community members at the Monitoring Team’s first community forum on July 11, 2019.12 Many were suspicious of the Monitoring Team and its

relationship to the City, and there was considerable confusion about the scope of the team’s

mandate and the role of community members in fulfilling that mandate. At one point, community

members asked police officers who were attending the forum to leave. Before that, community

members asked to see the notes taken by one officer. Frustration led some attendees to leave

before the forum was over, although others remained after the forum ended to speak with the Monitoring Team.13 The Monitoring Team compiled a list of nine recommendations made by

community members at the forum and included those recommendations in its Q2 Report:

• (A)

The Monitoring Team should be broadened to include one or more “lay” community members. This broadening would help establish trust between the Monitoring Team and the community and facilitate better communication between the two.

11 See supra note 5 and accompanying text. 12 The live-stream of that forum originally was posted on www.memphispdmonitor.com and remains available on YouTube (link here). 13 Media coverage of the forum on local Channel 5 (“MPD Consent Decree Meeting Disintegrates”) and the local public radio affiliate, WKNO (“MPD Oversight Committee Faces Skeptical Public”), is available here and here.
8

Case 2:17-cv-02120-JPM-jay Document 256 Filed 11/21/19 Page 11 of 18 PageID 8502

• (B)

Subsequent community forums should include an educative component. Not enough time at the first forum was devoted to explaining (1) what the Kendrick Consent Decree is and requires; (2) how the City violated the decree; (3) the Monitoring Team’s role in helping bring the City into compliance with the decree; and (4) community members’ role in facilitating compliance and reporting non-compliance.

• (C)

Although focus groups are contemplated by the joint public engagement plan, subsequent community forums should include small groups sessions. Such sessions would facilitate better communication and diminish any apparent barriers between the Monitoring Team and community members.

• (D)

In addition to a website, the Monitoring Team should host and regularly update a Facebook page or other social media. Many people do not read the news.

• (E)

Hard copies of documents discussed at community forums, focus groups, and any one-on-one meetings should be made available to attendees. Not everyone has access to the Internet.

• (F)

The Monitoring Team should do a better job of discussing the subjects in (B) and should not overly rely on or refer people to www.memphispdmonitor.com.

• (G) The Monitoring Team should participate in Facebook Live or other online streaming question-and-answer sessions with community members.

• (H)

The Monitoring Team should coordinate with the ACLU-TN, the MidSouth Peace and Justice Center, and other social justice organizations to ensure convenient timing and locations for future community forums, focus groups, and other community outreach.

• (I)

Community members want more information on MPD’s use of social media. In particular, community members are aware that the MPD’s use of the “Bob Smith” account was held by the Court to violate the Kendrick Consent Decree, but also understand that several other undercover

9

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accounts improperly being used by the City were disabled. They want to know the names of those other accounts.14
(ECF No. 219, PageID # 7589-90.) The team applied several of these recommendations to its second community forum on
November 7, 2019.15 First, half of the forum was devoted to educating community members on three subjects: (1) What does the Kendrick Consent Decree say? (2) What has the Monitoring Team been doing? and (3) What makes the Kendrick Consent Decree unique? (See Agenda, Handouts from Forum, attached as Exhibit 19.) Second, unlike the first forum, the second forum was broken into small, rotating group sessions to facilitate maximum interaction between the Monitoring Team, different members of which led each session, and community members. Third, the day before the second forum, Mr. Stanton participated in a Facebook Live session with Jimmy Hollingsworth, who attended the first forum and was one of the community members who met with the Monitoring Team one-on-one thereafter. Fourth, hard copies of the Kendrick Consent Decree and the other documents that each rotating session addressed were provided to all attendees.16 (See generally Ex. 19.) Fifth and finally, the Monitoring Team coordinated with the City, the ACLU-TN, and individual community members prior to the second community forum both to publicize the forum and to ensure that the forum date did not conflict with any
14 A July 19, 2019, disclosure by the City, referenced in § III(A)(3) and note 7 of the Q2 Report, is related to this recommendation. That disclosure and additional information concerning it are detailed in the Q2 Supplement. (See Ex. 1 at Ex. C, pp. 5-6.) According to the City, it “investigated but ha[s] no knowledge of any other imposter accounts other than ‘Bob Smith.’” (Id. at p. 6.) 15 See supra note 2 and accompanying text. 16 Those documents include “A Short Guide to the Kendrick Consent Decree,” a page-anda-half-long document that distills the consent decree into eight short paragraphs. The Monitoring Team is working on a more robust version of this document for dissemination to MPD officers and will incorporate in that version the Court’s most recent rulings in its Order denying the City’s motion for immediate modification of the consent decree. (See generally ECF No. 250.)
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Civilian Law Enforcement Review Board (CLERB) meetings or other events that might address similar or related subjects. The Monitoring Team also has continued to meet with individuals and representatives of such groups as the Memphis Shelby County Crime Commission and MICAH to receive and respond to community concerns.
A recurring suggestion at the second community forum, in individual meetings with community members and group representatives, and in the statements submitted to the Court on September 26 and October 4, 2019, is for one or more community members to be added to the Monitoring Team. There appears to be a uniform impression that such an addition will facilitate transparency and increase the level of trust between the Monitoring Team and the community.
There is precedent for formal participation by community members in consent decree processes. In Baltimore, Maryland, for example, a Community Oversight Task Force is part of that city’s consent decree with the federal Department of Justice.17 Similarly, the federal consent decree regarding the New Orleans, Louisiana, Police Department includes a Police-Community Advisory Board.18
Such an advisory board might be useful in this case, as it could facilitate transparency and increase trust without compromising the confidentiality and subject-matter expertise inherent in and necessary to the functioning of the Monitoring Team.
As always, the Monitoring Team commits this recommendation and the others that it has received to the discretion of the Court.
17 See “Consent Decree Basics,” Baltimore Police Department, available at https://www.baltimorepolice.org/transparency/consentdecreebasics. 18 See Amended and Restated Consent Decree Regarding the New Orleans Police Department, available at https://www.nola.gov/getattachment/NOPD/NOPD-ConsentDecree/2018-03-15-Amended-and-Restated-NOPD-Consent-Decree-CLEAN.pdf/.
11

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VI. CONCLUSION Mr. Stanton and the Monitoring Team look forward to discussing this report and any subsequent developments at the hearing on November 21, 2019. RESPECTFULLY SUBMITTED, this 20th day of November 2019,
/s/ Edward L. Stanton III Edward L. Stanton III (TN BPR #18904) BUTLER SNOW LLP 6075 Poplar Avenue, 5th Floor Memphis, TN 38119 Telephone: (901) 680-7200 Facsimile: (901) 680-7201 Email: Edward.Stanton@butlersnow.com Independent Monitor
12

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APPENDIX OF DOCUMENTS REFERENCED IN THIS REPORT

Doc. Ex. 1 Ex. 2 Ex. 3

Description
Q2 Supplement & Exhibits A-C (submitted on August 26, 2019, but not
yet docketed).
Proposed Audit & Compliance Plan (submitted on August 2, 2019, but not yet
docketed).
October 23, 2019, Letter to the Court & Two Enclosures.

Ex. 4

October 8, 2019, Letter to the Court.

Ex. 5

S. Peters Expert Retention Letter & Referenced Exhibit.

Ex. 6 Ex. 7

Cover Memorandum & Comparison Chart – Federal Social Media Policies.
Letters to the Court of September 26 and October 4, 2019 & Referenced Statements.

Ex. 8

August 29, 2019, Letter to M. Glover and M. Glover email of August 28, 2019.

Pages passim
4 4 2, 5 5 5 5
6

Ex. 9

August 30, 2019, Email to Court & Attachments.

6

Ex. 10

September 6, 2019, Memorandum to the City & Referenced Exhibit.

6

Ex. 11

October 4, 2019, Email Exchange between B. McMullen and E. Stanton.

6

13

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Doc. Ex. 12 Ex. 13 Ex. 14

Description
October 11, 2019, Letter from E. Stanton to B. McMullen.
Three Emails on October 16, 2019, and Two Emails on October 17, 2019,
between B. McMullen and E. Stanton.
October 21, 2019, Letter from E. Stanton to B. McMullen.

Ex. 15

October 23, 2019, Letter from E. Stanton to M. Glover.

Ex. 16

November 9, 2019, Email Exchange between B. McMullen and E. Stanton.

Ex. 17

November 13, 2019, Email Exchange between B. McMullen and E. Stanton.

Ex. 18

October 4, 2019, Email & Attachments from E. Stanton to T. Castelli.

Ex. 19

Handouts from November 7, 2019, Community Engagement Forum.

ECF No. 3, Case No. 2:76-cv000449

Kendrick Consent Decree

ECF No. Order Memorializing Sanctions (October

152

29, 2018)

ECF No. 197

Interim Report

ECF No. 203

April 23, 2019, Order

Pages 6 6 7 7 7 7 7 10
passim
4 1, 2, 5 1, 4

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Case 2:17-cv-02120-JPM-jay Document 256 Filed 11/21/19 Page 17 of 18 PageID 8508

Doc.
ECF No. 205

Description Q1 Report

ECF No. 207

Transcript of April 23, 2019, Hearing

ECF No. 208

Ninety Day Goals

ECF No. 211

Joint Public Engagement Plan

ECF No. 219

Q2 Report

ECF No. 219-1

Q2 Report Exhibits

ECF No. 225

Order Following August 27, 2019, Hearing.

ECF No. 226
ECF No. 227
ECF No. 241

Order on Costs of the Independent Monitor.
The City’s (formerly sealed) Motion for Immediate Modification of the Consent
Decree.
Order Extending the Deadline for Completion of Focus Groups.

ECF No. 242
ECF No. 250

Order on Costs of the Independent Monitor.
Order Denying the City’s Motion for Immediate Modification of the Consent
Decree.

Pages 1
6, n. 9 4,7
4, 5, 7 passim passim
4 2 4-5. 5 2 5, 10

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Doc.
ECF No. 253
50275484.v1

Description
Order on Costs of the Independent Monitor.

Pages 2

16

 
 Case 2:17-cv-02120-JPM-jay Document 319 Filed 05/20/20 Page 1 of 17 PageID 9373

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ACLU OF TENNESSEE, INC.,
Intervening Plaintiff, v. CITY OF MEMPHIS, TENNESSEE
Defendant.

)

)

)

)

)

No. 2:17-cv-02120-JPM-jay

)

)

)

)

)

FIRST QUARTER 2020 REPORT OF THE INDEPENDENT MONITOR

Edward L. Stanton III (TN BPR #18904) BUTLER SNOW LLP 6075 Poplar Avenue, 5th Floor Memphis, TN 38119 Telephone: (901) 680-7200 Facsimile: (901) 680-7201 Email: Edward.Stanton@butlersnow.com
Independent Monitor

Case 2:17-cv-02120-JPM-jay Document 319 Filed 05/20/20 Page 2 of 17 PageID 9374
TABLE OF CONTENTS I. INTRODUCTION & EXECUTIVE SUMMARY.......................................................................1 II. OVERVIEW OF THE MONITORING TEAM’S ACTIVITIES...............................................2 III. REQUESTS FOR AUTHORIZATION & MATTERS BROUGHT BEFORE
THE COURT .......................................................................................................................4 IV. DISCRETE TASKS, PUBLIC ENGAGEMENT & COVID-19 ..............................................7 V. CONCLUSION.........................................................................................................................10
APPENDIX OF DOCUMENTS REFERENCED IN THIS REPORT .........................................11

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I. INTRODUCTION & EXECUTIVE SUMMARY This First Quarter 2020 (Q1-20) Report follows five prior reports by the Monitoring Team:  Interim Report (ECF No. 197);  2019 First Quarter (Q1) Report (ECF No. 205);  2019 Second Quarter (Q2) Report (ECF No. 219);  2019 Q2 Supplemental Report (Q2 Supplement) (see Exhibit 1—submitted on August 26, 2019, but not yet docketed); and
 2019 Third Quarter (Q3) Report (ECF No. 256, docketed without submitted exhibits).
It covers the period from November 20, 2019 (the date that the team submitted its Q3 Report) to March 31, 2020, and fulfills three goals. First, this Q1-20 Report provides an overview of the Monitoring Team’s activities. Second, the Report identifies the various requests for authorization (RFAs) from the City to which the Monitoring Team has responded and summarizes the RFAs and other matters pertaining to the Consent Decree that have been brought before the Court for resolution. Third and finally, this Report provides updates regarding the following: (1) the discrete tasks that the Court has directed the Monitoring Team to complete to help restore Defendant City of Memphis (City) to compliance with the Kendrick Consent Decree; (2) the Monitoring Team’s public-engagement efforts; and (3) and the impact of the COVID-19 pandemic on those efforts.1

1

The Consent Decree is ECF No. 3 in Case No. 2:76-cv-000449 before this Court and has

been made publicly available on the Monitoring Team’s website, www.memphispdmonitor.com.

All docketed and unsealed reports (and exhibits) of the Monitoring Team and selected Orders of

the Court are available on www.memphispdmonitor.com.

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II. OVERVIEW OF THE MONITORING TEAM’S ACTIVITIES
Since the submission of its Q3 Report on November 20, 2019, the Monitoring Team has
done the following:
 Exchanged more than 1,500 internal and external emails.
 Conducted 18 weekly Monitoring Team conference calls and additional ad hoc calls as necessary; participated in more than 20 weekly and ad hoc calls with the City; and joined scheduled and ad hoc calls with Intervening Plaintiff ACLU of Tennessee, Inc. (ACLU-TN).
 Appeared before the Court, in person or telephonically, or otherwise brought matters to the Court’s attention, seven times: November 21, 2019;2 November 26, 2019;3 December 20, 2019;4 January 2, 2020;5 January 8, 2020;6 and February 28, 2020 (2).7
 Conducted in-person Monitoring Team meetings on November 21, 2019, and March 10, 2020.
 Conducted various calls with Dr. Sheila Peters of Fisk University (Dr. Peters) and a joint call with the City, the ACLU-TN, and Dr. Peters regarding the protocol for focus groups on December 20, 2019.

2

(See Order, ECF No. 259.)

3

(See Text Order, ECF No. 265; Letter from E. Stanton to Court re: the City’s Social-

Media Policy, attached as Exhibit 2.)

4

(See Notice by the City, ECF No. 268; Letter from E. Stanton to Court re: alternate

versions of the City’s Social-Media Policy, attached as Exhibit 3; see also City’s and ACLU-

TN’s Written Comments re: Social-Media Policy, ECF Nos. 270 & 271.)

5

(See Orders, ECF Nos. 269 & 273.)

6

(See Letter from E. Stanton to Court re: FISA Opinions, attached as Exhibit 4; see also

City’s Motions for Leave to respond to Letter, Sealed ECF No. 277 & ECF No. 278; Order re:

Motions, ECF No. 281; and City’s Response to Letter, ECF No. 282.)

7

(See Orders & Setting Letter re: New Deadlines, ECF Nos. 285-287, 293; Letter from E.

Stanton to the Court re: Sanction 5, attached as Exhibit 5; City’s Motion for Hearing, ECF No.

289; Order Setting Hearing & Setting Letter, ECF Nos. 290 & 291; City’s Motion to Seal

Documents, ECF No. 296; City’s Pre-Hearing Brief, ECF No. 297; ACLU-TN Response in

Opp’n to Sealing, ECF No. 298; see also Order Setting Video Hearing, ECF No. 310.)

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 Worked with the City to schedule a remote meeting with Major Darren Goods, head of the Memphis Police Department (MPD)’s Multi-Agency Gang Unit (MGU).
 Tracked more than 580 hours of Monitoring Team time. (See, e.g., ECF Nos. 267, 276, 284, 299, 307.)
 Hosted a third community engagement forum on March 10, 2020, at the Benjamin L. Hooks Central Library, located at 3030 Poplar Avenue, Memphis, TN 38111.8
 Conferred via email, telephone, and www.memphispdmonitor.com with multiple community members.9
 Posted Public Comment Procedure Protocols on a new “Trial & Public Comment” Page on www.memphispdmonitor.com and notified the press and community contacts about the protocols.10
 Provided real-time responses to RFAs for discrete MPD activity or clarifications regarding the same on four occasions: December 19, 2019;11 January 19, 2020;12 March 21, 2020;13 and March 27, 2020.14

8

See, e.g., “Third Public Forum to be Held in Memphis Police Spy Case,” February 3,

2020, available at https://dailymemphian.com/article/10460/third-public-forum-to-be-held-in-

memphis-police; Press Release, attached as Exhibit 6; Agenda, attached as Exhibit 7.

9

In one instance, the Monitor was able to resolve a potential dispute between a community

member, H.D., and the City concerning one of the City’s RFAs. See infra note 12 and

accompanying text.

10 (See Ex. 7; Email of April 23, 2020, to Community Contacts and Press, attached as Exhibit 8.)

11 (See Emails between E. Stanton and B. McMullen of December 17 & 19, 2019, attached as Exhibit 9.)

12 (See Emails between E. Stanton and J. Sink of January 17-19, 2020, attached as Exhibit 10.)

13 (See Emails between E. Stanton and J. Sink of March 20-21 & 23, 2020, attached as Exhibit 11.) The City subsequently objected to the Monitor’s resolution of this request. (See ECF Nos. 300.) The Court responded by Ordering a telephonic hearing on the objections, which was held on April 1, 2010 (see ECF Nos. 300-01, 304), and after which the City’s objections were overruled (ECF No. 305).

14 (See Emails between E. Stanton and J. Sink of March 27, 2020, attached as Exhibit 12.)

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These and ongoing activities of the Monitoring Team are described in greater detail where relevant to the discrete tasks, RFAs, and community-engagement efforts discussed below.
III. REQUESTS FOR AUTHORIZATION & MATTERS BROUGHT BEFORE THE COURT
This reporting period saw fewer RFAs from the City than the last—4 compared to 10. Rather than duplicate discussion of the issues raised by those RFAs, this Q1-20 Report attaches the relevant correspondence for each RFA as follows:
 December 19, 2019;15  January 19, 2020;16  March 21, 2020;17 and  March 27, 2020.18 There was, however, an increase in the number of matters brought directly before the Court. During the last reporting period there were five such matters.19 During this reporting period there were seven.20 Some of these matters were “appeals” by the City from resolutions by
15 See supra note 11 and accompanying text. 16 See supra note 12 and accompanying text. 17 See supra note 13 and accompanying text. 18 See supra note 14 and accompanying text. 19 Those matters were as follows: (1) the City’s handling of a Labor Day Parade (see Ex. 18, Q3 Report); (2) the September and October 2019 submissions of community members who attended the August 27, 2019, hearing (see Ex. 7, Q3 Report); (3) the October 23, 2019, submission of the Monitoring Team’s final recommendations regarding the City’s proposed policies, protocols, and training guidelines; (4) the Monitor’s request for an extension of the timeline for completing focus groups, which was granted (see Order, ECF No. 241); and (5) the City’s Motion for Immediate Modification of the Consent Decree, which was denied (see Order, ECF No. 250). 20 See supra notes 2-7; see also supra note 13 and accompanying text for an eighth matter presented to the Court at the beginning of April.
4

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the Monitor,21 while others were brought to the Court’s attention by the Monitor. Summaries of
each matter, all referenced briefly in Section II, above, are as follows:
 November 21, 2019:22 The full Monitoring Team appeared before the Court to present the Q3 Report’s findings. Subject-Matter Experts Rachel LevinsonWaldman and David McGriff provided testimony. Among other things, the Court Ordered the Monitor and the City jointly to submit the City’s proposed social-media policy no later than November 26, 2019.
 November 26, 2019:23 The Monitor requested additional time for the Monitoring Team to review several revisions to the social-media policy that were proposed by the City on November 25, 2019, the day before the policy was due to the Court. According to the City, the revisions were based on Mrs. Levinson-Waldman’s testimony at the November 21, 2019, hearing and the survey of federal social-media policies that were attached as Exhibit 6 to the Q3 Report.24 The Court granted the request.
 December 20, 2019:25 The Monitor explained that the Monitoring Team and the City were unable to agree on a version of the social-media policy to present to the Court. The Monitoring Team preferred the version of the policy that existed before the City’s November 25, 2019, revisions, and the City preferred the revised version. The Monitor submitted both versions to the Court, along with the Monitoring Team’s objections to the City’s proposed revisions. The City also filed a notice with the Court regarding the competing

21

As the Court has explained,

The first step is always to go to the monitor’s team and seek their input, but sometimes the monitor may say, on this issue we need to petition the Court on it, and that’s fine. And, then, sometimes, [the City] may disagree, either one of the parties in this case might disagree with either the resolution—or the resolution, and so, in essence, it’s like an appeal, but you just need to say we request the Court to review X, and we will.

(Hr’g Tr., ECF No. 207, PageID # 7189: 16-25.) 22 See supra note 2 and accompanying text. 23 See supra note 3 and accompanying text. 24 The Q3 Report is docketed as ECF No. 256, but the Court has not docketed the exhibits to that report. 25 See supra note 4 and accompanying text.

5

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versions. Finally, the Court invited the City and the ACLU-TN to offer written comments on the proposed policies.
 January 2, 2020:26 The Court expanded a telephonic status conference about scheduling to include discussion of the competing versions of the social media policy. Mrs. Levinson-Waldman testified during the conference, after which the Court Ordered the Monitor to provide to the Court for consideration several Foreign Intelligence Surveillance Act (FISA) opinions that Mrs. Levinson-Waldman referenced during her testimony.
 January 8, 2020:27 The Monitor provided the requested FISA opinions to the Court, along with a letter explaining the relevance of the opinions to the Monitoring Team’s objections to the City’s proposed revisions to its socialmedia policy. The City then requested permission to respond to the opinions and the letter, which the Court granted.
 February 28, 2020 (1):28 On February 26, 2020, the Court scheduled a telephonic status conference for Friday, February 28, 2020, to discuss the City’s motion to extend certain deadlines. The Monitor participated in that conference because some of the deadlines applied to the Monitoring Team. The Amended Scheduling Order that the Court ultimately entered included a deadline for the Monitor to make a final pretrial report and provide any anticipated presentations and expert analysis two weeks before the trial of this matter, which is scheduled for June 17, 2020. The Order also included deadlines for the submission of written comments from the public, the protocol for which the Order stated would be set out in a separate Order. (See ECF No. 295 & Section IV, below.)
 February 28, 2020 (2):29 Also on February 28, 2020, the Monitor informed the Court by letter that he believed the City to have departed from Sanction 5 of the Court’s Sanctions Order (ECF No. 152). Included with the Monitor’s letter were correspondence with the City and the ACLU-TN about the alleged Sanction 5 departure, a request to the Court that the correspondence be made public, and a request for a hearing. The City subsequently filed motions requesting an expedited hearing and the sealing or redaction of the

26 See supra note 5 and accompanying text.

27 See supra note 6 and accompanying text.

28 See supra note 7 and accompanying text.

29

Ibid.

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Case 2:17-cv-02120-JPM-jay Document 319 Filed 05/20/20 Page 9 of 17 PageID 9381

correspondence. The ACLU-TN filed a response in opposition to sealing. The Court scheduled a hearing on the alleged Sanction 5 departure for March 17, 2020, before which the City filed a pre-hearing brief on March 13, 2020. But the hearing was cancelled due to the COVID-19 pandemic. The hearing has been rescheduled, to occur via video, for May 14, 2020.

IV. DISCRETE TASKS, PUBLIC ENGAGEMENT & COVID-19 The Court has held three hearings on the status of the Monitoring Team’s efforts to help restore the City to compliance with the Kendrick Consent Decree, on April 23, 2019 (see Order, ECF No. 203); August 27, 2019 (see Order, ECF No. 225); and November 21, 2019 (see Order, ECF No. 259). At each hearing, the Court identified specific tasks for the Monitoring Team to complete. All of those tasks except one—focus groups—either have been completed or are awaiting approval by the Court. The status of each task is as follows:

Apr. 23, 2019, Hearing

Aug. 27, 2019, Hearing

Nov. 21, 2019, Hearing

TASK

STATUS TASK

STATUS

TASK

STATUS

Submission of 90-Day Goals.

Complete: ECF No. 208.

Submission of

Audit

&

Compliance

Plan for the

City.

Complete: Submitted on August 2, 2019.30
Awaiting Court approval.

Submission of final draft of the City’s proposed social media policy.

Incomplete: Competing submissions made by the Monitoring Team and the City on December 20, 2019, along with supplemental submissions on January 8 and February 5, 2020.31

Awaiting

30

See Ex. 2, Q3 Report, ECF No. 256, attached again here as Exhibit 13; seresaolsuotiosunpbray

note 24 and accompanying text.

the Court.

S31ubmissSioene supCraomnoptelest4e:-6 andImacpcloemmpeanntaytiinogn texInt.complete:

7

Case 2:17-cv-02120-JPM-jay Document 319 Filed 05/20/20 Page 10 of 17 PageID 9382

of Joint Public Engagement Plan. Submission of Second Quarterly Report, tracking progress towards 90Day Goals.

ECF No. 211.
Complete: ECF No. 219; see also Q2 Supplement (undocketed), Ex. 1.

of Audit & Compliance Plan.

Submission of

final review of

the

City’s

proposed

policies,

protocols, and

training

guidelines.

Focus Groups.

Awaiting Court approval.

Complete: Final Monitoring Team recommendations submitted to the Court on October 23, 2019.32

Incomplete:

Begun

in

February 2020

but interrupted

by COVID-19

pandemic.

Update to be

provided by Dr.

Peters.

Submission of Complete:

survey

of Submitted

federal social- November 20,

media policies. 2019.33

Submission of Complete:

comments from Submitted

hearing

September 26,

attendees.

2019,

and

October

4,

2019.34

Completion of the focus groups began in February 2020, but was interrupted by the

COVID-19 pandemic, which likewise caused the cancellation of the Court’s initial hearing on

32

See Exs. 1 & 3, Q3 Report, ECF No. 256, attached again here as Exhibit 14 & 15; see

also supra notes 19 & 24 and accompanying text.

33

See Ex. 6, Q3 Report, ECF No. 256, attached again here as Exhibit 16; see also supra

note 24 and accompanying text.

34

See Ex. 7, Q3 Report, ECF No. 256, attached again here as Exhibit 17; see also supra

note 24 and accompanying text.

8

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the City’s alleged departure from Sanction 5.35 Dr. Peters, who is conducting the focus groups, will update the Monitoring Team, the parties, and the Court on the status of the focus groups and contemplated next steps. (See ECF No. 241.)
The Monitoring Team’s other public engagement efforts also have been impacted by COVID-19. Turnout at the third community forum, held on March 10, 2020,36 was much lower than turnout at the first and second forums, and two members of the Monitoring Team (Mrs. Levinson-Waldman and Dr. Theron Bowman) were also unable to attend the forum due to COVID-19 concerns.37 As was the case with the Court’s August 2019 request for public input,38 several community members have submitted comments regarding proposed modifications to the Consent Decree during the Court’s month-long (April 3-May 4, 2020) pretrial Public Comment Period.39 Because the Public Comment Period was announced on March 3, 2020, however, just as the COVID-19 pandemic was beginning to take its toll on the City, members of the public have requested an extension of the May 4, 2020, deadline to allow for the submission of additional comments. The Independent Monitor will send separate correspondence to the Court that details this request.
The Monitoring Team’s final, pretrial report40 will include a comprehensive recitation of the team’s community engagement efforts, the successes and failures of those efforts, and

35

See supra note 7 and accompanying text; Section III, supra, at pp. 6-7.

36

See supra note 8 and accompanying text

37 It also should be noted that the March 10, 2020, community forum took place at a different location (the Benjamin L. Hooks Central Library) from the first two community forums (Mississippi Boulevard Christian Church), and that several attendees complained that they received little to no notice, or inaccurate notice of the forum, despite its having been publicized more than one month in advance. See supra note 8 and accompanying text.

38

See supra note 34 and accompanying text.

39

(See Order, ECF No. 295; see also supra notes 8 & 10 and accompanying text.)

40

(See Order, ECF No. 293; see also supra note 7 and accompanying text.)

9

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recommendations of the team’s subject-matter experts and community members. But it is worth
noting here that in almost every single encounter that the Monitoring Team has had with
community members—via email, the Monitoring Team website, at community forums, and
during one-on-one and group meetings—members have reiterated the request that the team be broadened to include one or more “lay” community members.41
As always, the Monitoring Team submits this recommendation and the others that it has
received from the community for consideration by the Court.
V. CONCLUSION The Independent Monitor and the Monitoring Team look forward to discussing this
Report and any subsequent developments at the trial of this matter on June 17, 2020, or at any
other time that the Court deems appropriate.
RESPECTFULLY SUBMITTED, this 6th day of May 2020,
/s/ Edward L. Stanton III Edward L. Stanton III (TN BPR #18904) BUTLER SNOW LLP 6075 Poplar Avenue, 5th Floor Memphis, TN 38119 Telephone: (901) 680-7200 Facsimile: (901) 680-7201 Email: Edward.Stanton@butlersnow.com
Independent Monitor

41

(See Q2 Report, ECF No. 219, PageID # 7589; Q3 Report, ECF No. 256, PageID #

8504.)

10

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APPENDIX OF DOCUMENTS REFERENCED IN THIS REPORT

Doc.

Description

Ex. 1

2019 Q2 Supplemental Report

Ex. 2 Ex. 3 Ex. 4 Ex. 5 Ex. 6 Ex. 7

November 26, 2019, Letter from E. Stanton to Court re: City’s Social-Media
Policy
December 20, 2019, Letter from E. Stanton to Court re: Alternate Versions of
City’s Social-Media Policy
January 8, 2020, Letter from E. Stanton to Court re: FISA Opinions
February 28, 2020, Letter from E. Stanton to the Court re: Sanction 5
March 9, 2020, Press Release re: Third Community Forum
March 10, 2020, Community Engagement Forum Agenda

Ex. 8 Ex. 9

Monitoring Team Email of April 23, 2020, to Community Contacts and Press
Emails between E. Stanton and B. McMullen of December 17 & 19, 2019

Ex. 10 Ex. 11 Ex. 12

Emails between E. Stanton and J. Sink of January 17-19, 2020
Emails between E. Stanton and J. Sink of March 20-21 & 23, 2020
Emails between E. Stanton and J. Sink of March 27, 2020

Pages 1, 8 2
2
2 2 3 3 3 3 3 3 3

11

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Doc. Ex. 13

Description Exhibit 2 to Q3 Report

Ex. 14

Exhibit 1 to Q3 Report

Ex. 15

Exhibit 3 to Q3 Report

Ex. 16

Exhibit 6 to Q3 Report

Ex. 17

Exhibit 7 to Q3 Report

ECF No. 3, Case No. 2:76-cv000449

Kendrick Consent Decree

ECF No. Order Memorializing Sanctions (October

152

29, 2018)

ECF No. 197
ECF No. 203
ECF No. 205
ECF No. 207
ECF No. 208
ECF No. 211
ECF No. 219
ECF No. 225

Monitoring Team’s Interim Report Order Following April 23, 2019, Hearing
Monitoring Team’s Q1 Report Transcript of April 23, 2019, Hearing Monitoring Team’s Ninety-Day Goals
Joint Public Engagement Plan Monitoring Team’s Q2 Report Order Following August 27, 2019,
Hearing

Pages 7 8 8 8 8 1, 7
6
1 7 1 5 7 8 1, 8, 10 7

12

Case 2:17-cv-02120-JPM-jay Document 319 Filed 05/20/20 Page 15 of 17 PageID 9387

Doc.
ECF No. 241

Description
Order Extending the Deadline for Completion of Focus Groups

ECF No. 250
ECF No. 256
ECF No. 259
ECF No. 265
ECF No. 267
ECF No. 268
ECF No. 269
ECF No. 270
ECF No. 271
ECF No. 273
ECF No. 276
ECF No. 277

Order Denying the City’s Motion for Immediate Modification of the Consent
Decree.
Monitoring Team’s Q3 Report
Order Following November 21, 2019, Hearing
Text Order – Final Draft of Proposed Social-Media Policy Deadline
Sealed Order on Costs of the Independent Monitor
Notice by the City re: Proposed SocialMedia Policy
Order Expanding Scope of January 2, 2020, Conference
Notice of City of Memphis’s Written Comments re: Proposed Social-Media
Policy
Notice by ACLU Written Comments re: Proposed Social-Media Policy
Order Following January 2, 2020, Telephonic Conference
Sealed Order on Costs of the Independent Monitor
City’s Sealed Motion for Leave to Respond to Monitor’s Letter of January 8,
2020 (incorrectly filed)

Pages 4, 9
4
passim 2, 7 2 3 2 2 2
2 2 3 2

13

Case 2:17-cv-02120-JPM-jay Document 319 Filed 05/20/20 Page 16 of 17 PageID 9388

Doc.
ECF No. 278
ECF No. 281
ECF No. 282
ECF No. 284
ECF No. 285
ECF No. 286
ECF No. 287
ECF No. 289
ECF No. 290
ECF No. 291
ECF No. 293
ECF No. 295
ECF No. 296
ECF No. 297

Description City’s Sealed Motion for Leave to Respond to Monitor’s Letter of January 8,
2020 (corrected filing) Order Granting City’s Motion for Leave
to Respond City’s Reply to Independent Monitor’s
Letter of January 8, 2020 Order on Costs of the Independent
Monitor Order Setting Telephonic Status
Conference Setting Letter for Telephonic Status
Conference
Restated Final Scheduling Order
City’s Motion for Hearing
Order Setting Hearing
Setting Letter
Amended Final Scheduling Order
Order Adopting Public Comment Period
City’s Motion to Seal Documents or Allow Redactions Before Docketing
Publicly
City’s Pre-Hearing Brief

Pages 2
2 2 3 2 2 2 2 2 2 2, 10 6, 9 2
2

14

Case 2:17-cv-02120-JPM-jay Document 319 Filed 05/20/20 Page 17 of 17 PageID 9389

Doc.
ECF No. 298
ECF No. 299
ECF No. 300
ECF No. 301
ECF No. 304
ECF No. 305
ECF No. 307
ECF No. 310
52896274.v1

Description ACLU-TN’s Response in Opposition to
Motion to Seal Documents or Allow Redactions Before Docketing Publicly
Order on Costs of Independent Monitor
City’s Objections to Monitor’s Response to Request for Authority to Use Cameras
at COVID Testing Site Order Setting Telephonic Objections
Hearing Witness List for Telephonic Objections
Hearing
Order on the City’s Objections
Order on Costs of Independent Monitor
Order Setting Video Hearing

Pages 2
3 3
3 3 3 3 2

15

 
 Case 2:17-cv-02120-JPM-jay Document 363 Filed 08/19/20 Page 1 of 10 PageID 12297

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ACLU OF TENNESSEE, INC., Intervening Plaintiff,
v. THE CITY OF MEMPHIS,
Defendant.

)

)

)

)

Case No. 2:17-cv-02120-JPM-jay

)

)

)

)

)

ORDER ON THE CITY’S NONCOMPLIANCE WITH SANCTION FIVE OF THE OCTOBER 29, 2018 ORDER MEMORIALIZING SANCTIONS, AND ORDER DENYING CITY’S MOTION TO SEAL

This cause was before the Court on May 14, 2020 for a Video Hearing regarding the City of Memphis’s asserted noncompliance with Sanction 5 of the Court’s October 26, 2018 Order and Opinion (ECF No. 151) and October 29, 2018 Order Memorializing Sanctions (ECF No. 152). The Hearing was held after the Independent Monitor informed the Court that the City has not complied with Sanction 5. (See ECF No. 364.) Before the Hearing, the City filed a Motion to Seal the documents submitted by the Monitor that detail the City’s noncompliance with Sanction 5. (ECF No. 296.)
Present were counsel for the ACLU-TN and the City. Also present were the Independent Monitor and members of the Monitoring Team, as well as counsel for the Memphis Police Department (“MPD”) and the City. The Court heard testimony from Major Darren Goods, Operations Commander for the Memphis Police Department’s Multi-Agency Gang Unit (“MGU”).

Case 2:17-cv-02120-JPM-jay Document 363 Filed 08/19/20 Page 2 of 10 PageID 12298
For the reasons set forth below, the Court finds that the City has not complied with Sanction 5. The Court also DENIES the City’s Motion to Seal but will allow the City to refile its Motion within fourteen (14) days of the entry of this Order.
I. The Court’s Findings
Upon review of the Parties’ briefing, the testimony of Major Goods, and the arguments presented by the City, the Monitor and the ACLU-TN at the Hearing, the Court finds that the City has not complied with Sanction 5. (See ECF No. 152.) Sanction 5 requires the City to “maintain a list of all search terms entered into social media collators or otherwise used by MPD officers collecting information on social media while on duty.” (Id. at PageID 6289.) The Sanction is not limited to the MPD’s use of social media collators, nor is it limited to a specific group, agency or department of the MPD. By failing to provide the search terms used by officers of the MGU, Organized Crime Unit (“OCU”), and Internet Crimes Against Children division, the City did not comply with the plain terms of Sanction 5.
The testimony of Major Goods demonstrates the importance of disclosing the social media search terms used by the MGU. Major Goods testified that the MGU makes significant use of social media in the course of investigating gang activity. (See Tr. of May 14, 2020 Hr’g, ECF No. 318 at PageID 9345:2-25, 9346:1-10.) Major Goods testified that MGU officers assist other agencies and other MPD divisions, especially when there is a “gang nexus” to the investigation. (Id. at PageID 9348:2-21, 9354:5-8.) The MGU “receive[s] and provide[s] search terms to other agencies” and MPD departments, and MGU officers use undercover social media accounts to conduct their investigations, many of which are under the names of the undercover officers’ personas. (Id. at PageID 9353:2-12, 9355:4-25, 9356:1-6.)
2

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These search terms are in some instances saved and preserved for later use in the investigation or for subsequent criminal prosecutions. (Id. at PageID 9354:5-8.)
The social media search terms used both by undercover and uniformed MGU officers must be disclosed to the Court under Sanction 5, regardless of the sensitivity of the information. The City shall supplement their filings to provide all undisclosed search terms used by officers of the MGU, OCU, Crimes Against Children division, or any other MPD department or division whose social media search terms have not been previously disclosed.
II. The City’s Arguments
The City’s arguments against disclosure of the social media search terms used by the MGU and other MPD divisions are not persuasive.1 The Court will address each of the City’s arguments in turn.
A. The failure of the Monitor and the ACLU-TN to object to the undisclosed search terms does not justify the City’s noncompliance. The City’s first argument, which it advanced at the Hearing, is that it could not have known it was not complying with Sanction 5 because neither the Court, nor the Independent Monitor, nor the ACLU-TN objected to the non-disclosure of these terms in the lists of search terms submitted to the Court dating back to January 2019. (See, e.g., Tr., ECF No. 318 at PageID 9336:24-25, 9337:1-2, 10-14.) This argument is not persuasive. The Monitor and the ACLU-TN were unable to object to the non-disclosure of search terms because they were not made aware of the existence of such terms. The Monitor and the ACLU-TN therefore were
1 The City asserts several arguments in support of its position in a letter responding to the Independent Monitor’s inquiry regarding the City’s compliance with Sanction 5, dated February 14, 2020 (ECF No. 364), in the City’s Pre-Hearing Brief, filed on March 13, 2020 (ECF No. 297), and its Post-Hearing Brief, filed on March 21, 2020. (ECF No. 321.)
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unable to object to the absence of this information and thus the City’s potential violation of Sanction 5 at the time the City filed its list of search terms with the Court.
B. Requiring MPD officers to turn over lists of search terms used on their own personal social media accounts or their own personal phones does not violate the Fourth Amendment. The Fourth Amendment does not bar the City from requiring MPD officers to disclose search terms used on officers’ social media accounts or their personal devices if the terms were used for official police business.
MPD officers have a reasonable expectation of privacy in their personal devices, and thus some of the information on their personal devices triggers Fourth Amendment protections and requires the MPD to obtain a warrant before searching officers’ personal property. See City of Ontario v. Quon, 560 U.S. 746, 756 (2010) (“The Fourth Amendment applies as well when the Government acts in its capacity as an employer.”); see also O’Connor v. Ortega, 480 U.S. 709, 717 (1987) (“Individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.”). However, “the Supreme Court has recognized an exception for searches of a public employee’s workplace under the special needs doctrine.” James v. Hampton, 592 F. App’x 449, 454 (6th Cir. 2015) (citing O’Connor, 480 U.S. at 719–20). Imposing a “warrant requirement would be impracticable in the public employment context,” as such a requirement “would seriously disrupt the routine business of the workplace.” Id. (citing O’Connor, 480 U.S. at 722).
Although the Supreme Court has not settled the proper analytical framework used to determine the scope of a public employee’s Fourth Amendment protections in the context of
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employment-related searches, the Sixth Circuit in the unpublished opinion James v. Hampton discussed the O’Connor v. Ortega plurality’s framework, which “recognized that government employees’ expectation of privacy in their offices can be diminished by virtue of office practices and procedures or by legitimate regulation.” James v. Hampton, 592 F. App’x 449, 455 (6th Cir. 2015); see also Zimmerman v. Knight, 421 F. Supp. 3d 514, 520–21 (S.D. Ohio Nov. 14, 2019) (noting that the Hampton decision is controlling with respect to O’Connor’s application in the Sixth Circuit). “[G]overnment employees’ expectation of privacy in the workplace can be reduced through . . . prior notice to employees that their workspaces were subject to search.” Hampton, 592 F. App’x at 455.
Under the O’Connor plurality’s approach, courts apply a two-step inquiry to determine “whether a public employee workplace search without a warrant would violate the Fourth Amendment.” Hampton, 592 F. App’x at 454–55. First, the reviewing court considers “whether the employee has a reasonable expectation of privacy in the workplace.” Id. at 455 (citing O’Connor, 480 U.S. at 711–12). Second, “if the employee does have an expectation of privacy,” the courts must ensure that the search is “reasonable both at its inception and in its scope.” Id. (citing O’Connor, 480 U.S. at 725–26). “A search is justified at its inception ‘when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file.’” Id. (quoting O’Connor, 480 U.S. at 726). “The search is reasonable in scope when it is ‘reasonably related to the objectives of the search and not excessively intrusive in light of . . . the nature of the [misconduct].’” Id. (quoting O’Connor, 480 U.S. at 726).
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MPD officers have a reduced expectation of privacy in their personal devices and social media accounts when used for official police purposes “by virtue of office practices and procedures or by legitimate regulation” put in place by the City and the MPD. See Hampton, 592 F. App’x at 455. A court order requiring all MPD personnel to provide social media search terms used for official police business qualifies as a “legitimate regulation,” given the importance of the City’s continued compliance with the Kendrick Consent Decree, and especially given that an MPD officer’s impermissible use of social media was at the heart of the Court’s finding that the City and the MPD violated the Kendrick Consent Decree. Although MPD officers generally have a reasonable expectation of privacy in their personal cellphones and devices under Supreme Court and Sixth Circuit precedent, see Riley v. California, 573 U.S. 373, 386 (2013), see also Zimmerman v. Knight, 421 F. Supp. 3d 514, 520– 21 (S.D. Ohio 2019), not everything on MPD officers’ personal cellphones and devices is necessarily unrelated to official police business. See Zimmerman, 421 F. Supp. 3d at 520–21 (quoting Hampton, 592 F. App’x at 457). The search terms stored on MPD officers’ and MGU officers’ personal phones and used in criminal investigations qualify as “workplace items.” Therefore, social media accounts and search terms used for criminal investigative purposes on behalf of the MPD qualify as “items that are related to work” and should be “within the employer’s control.” O’Connor, 480 U.S. at 715.
It is, however, both impracticable and inappropriate to require the MPD to obtain a warrant to retrieve social media search terms directly related to official police business from its officers’ personal phones. See id. at 725. The MPD’s collection of such search terms is reasonably related to the goal of ensuring compliance with the Kendrick Decree. The Eastern District of California in Larios v. Lunardi directly addressed the issue of searches of officers’
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personal cellphones and came to the same conclusion. See --- F. Supp. 3d ----, 2020 WL 1062049, at *7–8 (E.D. Cal. Mar. 5, 2020). The plaintiff in Larios “comingled his work life and personal life on a single device” and “used a personal device to engage in CHP-regulated communication.” Id. at *7. The court found that a search of that device did not occur “pursuant to a criminal investigation” but was instead “an investigation of work-related misconduct” and thus was justified in its inception and reasonably related to the purpose of the search. Id.
The sworn testimony is that MPD officers comingle work-related searches with their own personal affairs on their personal social media accounts and electronic devices. See id. at *7. (See Aff. of Don Crowe, ECF No. 321-1 at PageID 9907–08, ¶¶ 12–15; see also Tr., ECF No. 318 at PageID 9355: 4-25, 9356:1-6.) Requiring officers to provide a list of social media search terms entered on their personal devices or on their personal social media accounts is “reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search.” Quon, 560 U.S. at 761–62 (quoting O’Connor, 480 U.S. at 725–26). Any intrusion is limited since it only requires officers to disclose social media search terms entered on their personal devices for official police purposes. See Quon, 560 U.S. at 761–62 (finding reasonable a public employer’s tailored review of employees’ text messages in light of the circumstances); see also Larios, 2020 WL 1062049, at *7 (finding reasonable and justified at its inception employer’s “limited” search of “a subset of messages” that were confined to the alleged misconduct committed by the public employee plaintiff).
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The Court’s requirement that the City collect search terms used by MPD officers on their personal devices and social media accounts for official police purposes therefore does not require a warrant and complies with the Fourth Amendment.
C. Although the requirement that all rank-and-file members of the MPD disclose their social media search terms may impose a burden on the MPD, that burden is outweighed by Sanction 5’s important purpose, to ensure the City’s continued compliance with the Kendrick Consent Decree. The City asserts that it would be impracticable or overly burdensome to require it to collect all social media search terms used by every MPD officer because these searches occur on their own personal Facebook and social media accounts and because these accounts are not connected with official MPD social media accounts. (See Post-Hr’g Br., ECF No. 321 at PageID 9897–9903.) The Court is aware that compliance with Sanction 5 may require expenditure of MPD personnel’s time and resources to the extent that such officers’ use of personal devices, etc. for police purposes is widespread.2 But the fact that MPD officers are conducting social media searches on their own personal devices and using unmonitored social media accounts for police purposes underscores exactly why the City must disclose MPD officers’ work related social media search terms. This activity comes close to replicating the behavior that led the City to violate the Kendrick Consent Decree in the first instance. To leave such use unmonitored would make a mockery of Sanction 5. The Court must of necessity make itself aware of MPD officers’ use of social media for police investigative purposes to ensure the MPD’s and the City’s continued compliance with the Kendrick Consent Decree and the safeguards it imposes.
2 If such use is not widespread, the burden on the Department should be minimal.
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The City compares MPD officers’ use of social media with the information gathering techniques used by officers while “walking the beat.” (See id. at PageID 9903.) These two situations are not comparable. When a uniformed officer walks his or her beat, he or she is readily identifiable as a police officer, and citizens who engage with the officer know they are in contact with the MPD. When an officer searches social media to gather information on a subject, the subject is completely unaware of the search and has no idea that an officer, using a personal Facebook account unaffiliated with the MPD, is searching or investigating the citizen’s profile for police purposes. While this is allowed, it is the type of intrusive activity that is appropriately subject to restriction and monitoring.
Finally, the Court notes that the City’s objection to the disclosure of these terms over security concerns for sensitive ongoing investigations is insufficient to justify nondisclosure of these terms. (See ECF No. 297 at PageID 9117–18.) Filing the documents under seal and carefully restricting access to this information protects sensitive law enforcement information from inadvertent public disclosure while providing a formal mechanism to protect the individual liberty and the integrity of agreed upon restrictions in the Kendrick Decree.
III. The City’s Motion to Seal The City filed a Motion to Seal the documents submitted by the Monitor on March 3, 2020. (ECF No. 296.) The City did not provide a detailed, document-by-document analysis justifying why sealing the documents would be appropriate, nor did the City provide the Court with an alternative, redacted version of the documents. See Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305–06 (6th Cir. 2016). The Court will therefore DENY the Motion. The documents, however, shall be temporarily filed under seal in light of their apparent sensitive nature. The Court will allow the City to refile its Motion to provide the
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Court with a document-by-document analysis setting out in detail the factual basis supporting the sealing of each document as well as an alternative redacted version of each document Defendant wishes to have filed under seal. Any renewed motion must be filed within 14 days of the entry of this Order. If no motion is filed, the documents will be unsealed. The ACLU-TN may file a Response within 7 days of the City’s filing its renewed Motion to Seal.
IV. Conclusion For the reasons set out above, the Court finds that the City has not complied with Sanction 5 of the Court’s Order Memorializing Sanctions. The City must disclose all work related social media search terms used by all MPD officers, including the search terms used by officers of the MGU, the OCU, and the Internet Crimes Against Children division for the reasons and in the manner set out in this Order. The City shall supplement its previous filings with all work related search terms used since January 2019. If the City desires to renew its Motion to Seal, said Motion shall be filed by no later than Wednesday, September 2, 2020. SO ORDERED, this 19th day of August, 2020.
/s/ Jon P. McCalla JON P. McCALLA UNITED STATES DISTRICT JUDGE
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ACLU OF TENNESSEE, INC., Plaintiff,
v. CITY OF MEMPHIS, TENNESSEE,
Defendant.

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Case No. 2:17-cv-02120-JPM-jay

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OPINION AND ORDER

This cause was before the Court on the City of Memphis’s (hereinafter “The City”) Motion to Modify the Kendrick Consent Decree, initially filed on October 15, 2018. (ECF No. 124.) The Court held an evidentiary hearing on the Motion beginning on June 17, 2020 and concluding on June 22, 2020. (See Trial Mins., ECF Nos. 338–41.) The City moves the Court pursuant to Federal Rule of Civil Procedure 60(b) to modify the Kendrick Consent Decree. (See ECF No. 124 at PageID 5010; see also Mem. in Supp. of Mot. to Modify, ECF No. 124-1 at PageID 5016.) Since the filing of the Motion, the City has amended its requested modifications. (See Order Grant. City’s Mot. to Withdraw, ECF No. 333 at PageID 10210.) The City no longer seeks to vacate the Kendrick Consent Decree in its entirety and only seeks to modify or clarify certain portions of the Decree. (Id.; see also Joint Notice of Proposed Modified Consent Decree, ECF No. 327.)

Intervening Plaintiff American Civil Liberties Union of Tennessee (hereinafter “ACLUTN”), has agreed to sixteen of the City’s proposed modifications. (See ECF No. 327; see also Proposed Modified Decree, ECF No. 327-2.) The ACLU-TN, however, opposes the City’s requested modifications of §§ H and I of the Decree. (ECF No. 327 at PageID 9952; see also ACLU-TN Post-Trial Br., ECF No. 349.)
For the reasons set forth below, based on the evidence introduced by the Parties at the hearing and on the Parties’ and the Monitor’s filings in connection with the City’s Motion for Modification, the Court GRANTS IN PART and DENIES IN PART the City’s request to modify the Kendrick Consent Decree. The Court finds that sufficient evidence in the record supports granting the Parties’ Jointly Proposed Modifications to the Kendrick Consent Decree. The Court also finds that the City has not provided sufficient evidence demonstrating that a change in factual circumstances warrants modification of §§ I and H of the Decree.
I. BACKGROUND
A. The 1976 Kendrick Litigation, Case No. 2:76-cv-00449
On September 14, 1976, a group of residents of the City of Memphis and the American Civil Liberties Union in West Tennessee filed an action against the City and several city officials. (Case No. 2:76-cv-00449, ECF No. 2.) The Kendrick Complaint asserted that the Memphis Police Department (“MPD”) violated the plaintiffs’ First, Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendment Rights by establishing a “Domestic Intelligence Unit whose purpose was to investigate and maintain files upon citizens engaged in non-criminal, constitutionally protected activities which were thought to be ‘subversive’ and/or advocating unpopular or controversial political issues.” (Id. ¶ 6.) The plaintiffs alleged that the MPD burned the
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Domestic Intelligence Unit’s files rather than turning them over to the Court following the filing of the complaint. (Id. ¶ 9.)
On September 14, 1978, the Court entered a consent Order, Judgment, and Decree, now known as the Kendrick Consent Decree. (Case No. 2:76-cv-00449, Kendrick Consent Decree, ECF No. 16.) The Kendrick Consent Decree’s “Statement of General Principles” provides:
The provisions of this Decree prohibit the defendants and the City of Memphis from engaging in law enforcement activities which interfere with any person’s rights protected by the First Amendment to the United States Constitution including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose. Furthermore, even in connection with the investigation of criminal conduct, the defendants and the City of Memphis must appropriately limit all law enforcement activities so as not to infringe on any person’s First Amendment rights. (Id. § A.) The Kendrick Consent Decree: (1) prohibits the City and the MPD from engaging in conduct that impermissibly interferes with the exercise of First Amendment Rights; (2) regulates the ways in which the City is permitted to interfere with its citizens’ exercise of their First Amendment Rights; and (3) it requires the City to publicize the Decree and familiarize law enforcement personnel with its requirements. (Id. §§ C–J.)
B. The Blanchard Case, 17-cv-2120
The instant action was filed on February 22, 2017 by a group of individual plaintiffs who sought to enforce the terms and conditions of the Kendrick Consent Decree. (Compl., ECF No. 1.) The plaintiffs alleged that certain activities engaged in by the City violated the Decree. (See generally id.) For example, the plaintiffs alleged that the City had created an “escort list” for certain politically active individuals entering Memphis City Hall, a list that named each of the plaintiffs. (See generally id.) After the City challenged the individual plaintiff’s standing to
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enforce the Decree’s provisions, on March 2, 2017, the ACLU-TN filed its Motion to Intervene, which the Court granted the same day. (See ECF Nos. 12 & 15.)
On August 10, 2018, the Court granted in part and denied in part the ACLU-TN’s Motion for Summary Judgment. (ECF No. 120.) The Court found that the City had violated portions of the Kendrick Consent Decree by gathering “‘political intelligence’ as defined and prohibited by the Decree” and by “fail[ing] to review and issue written authorizations for at least some lawful investigations of criminal conduct that ‘may result in the collection of information about’ or ‘interfere in any way with’ the ‘exercise of First Amendment rights.’” (Id. at PageID 4854–55.)
The Court held a four-day nonjury trial beginning on August 20, 2018 to determine whether the MPD and the City violated the Kendrick Consent Decree in additional ways. (2018 Trial Mins., ECF Nos. 128–31.) On October 26, 2018, the Court found that the ACLU-TN had proven by clear and convincing evidence that the City had violated the Kendrick Consent Decree. (ECF No. 151 at PageID 6242–43.) In particular, the Court found that the MPD had used an imposter Facebook account under the name “Bob Smith” to infiltrate political activist groups for the purposes of gathering political intelligence in violation of the Kendrick Consent Decree. (Id. at PageID 6264–66.) The Court imposed five categories of sanctions on the City for these violations. (See Order Memorializing Sanctions, ECF No. 152.) The Court ordered the City to: (1) revise its departmental policies to include a definition of “political intelligence”; (2) establish a training program for members of the MPD on the meaning of political intelligence and instruct the officers that “political intelligence is not permissible as a goal of an investigation nor as a means to an end of an otherwise lawful investigation”; (3) create an approval process for investigations into unlawful conduct that may incidentally result in the gathering or collection of political intelligence, with the City to submit to the Court a proposed authorization mechanism in
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compliance with § G of the Decree; (4) create and submit to the Court guidelines for officers on the use of social media searches and social media collators in compliance with the Decree; and (5) submit a periodic list of all search terms entered into social media by MPD officers. (Id. at PageID 6287–90.) The Court, with the consent of the parties, appointed Edward Stanton III as the Independent Monitor to supervise the City’s compliance with the Court’s Order. (ECF No. 176.)
Prior to the trial, on August 15, 2018, the City filed a Motion for Relief from Judgment or Order. (ECF No. 124.) The City sought to vacate or modify the Decree. (Id.) On December 20, 2018, the Parties filed a Joint Motion to Stay the City’s Motion to Modify and/or Vacate Judgment, in which they stated their belief that with the Independent Monitor’s guidance they could “significantly narrow, and possibly even eliminate, many of the disputed issues before the Court.” (ECF No. 175 at PageID 6257.) All deadlines related to modification were stayed. (ECF No. 178.)
On September 25, 2019, the City filed its Sealed Motion for Immediate Modification of the Kendrick Consent Decree. (ECF No. 227.) The City moved the Court to modify or vacate § I of the Kendrick Consent Decree. (Id.) It argued that a change in factual conditions and changes in intervening First Amendment case law since entry of the Decree warranted modification. (Id.) Specifically, the City argued that the Decree prevented it from participating in several information sharing programs and joint law enforcement operations, including the MGU, CrimeStoppers, the Tennessee Fusion Center, the Joint Terrorism Task Force, and the Trust Pays Program with Shelby County Schools. (See ECF No. 227-1 at PageID 7715.) The Court denied the Motion on November 13, 2019. (See Order Deny. Mot. for Immediate Modification, ECF No. 250.) The Court held that changed factual circumstances did not warrant
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modification of § I and that the Decree did not prohibit the City’s participation in those
information sharing programs. (See id. at PageID 8411–30.)
On January 2, 2020, the Court held a telephonic scheduling conference and set June 17,
2020 as the date for the evidentiary hearing on the City’s Motion for Modification. (See Min.,
ECF No. 272; see also Scheduling Order, ECF No. 287 at PageID 9086.) Before the hearing, the
Parties engaged in several rounds of mediation led by the Independent Monitor, which resulted
in sixteen jointly proposed modifications. (ECF No. 327.)
The ACLU-TN could not agree to the City’s proposed modification to § I of the Kendrick
Consent Decree. The City’s proposed modified § I reads:
The defendants and the City of Memphis shall not encourage, delegate, employ or contract with, or act at the behest of any local, state, federal or private agency, or any person, to plan or conduct any investigation, activity or conduct prohibited by this Decree. In other words, the City may not direct another agency to act as its surrogate to violate the Consent Decree or accept information that the City knows or should reasonably have known was collected in a manner that would violate the United States Constitution. Under this section, the City may receive information from other entities that does not constitute First Amendment-Related intelligence for a legitimate law enforcement purposes provided that the City may not act upon such information without obtaining an Authorization pursuant to Section G. The City may not act upon or catalog information from other agencies constituting First AmendmentRelated intelligence that is unrelated to any legitimate law enforcement purpose. Nothing in this Section precludes the City from receiving tips from non-law enforcement agencies or individuals.
(Trial Ex. 25, City’s Proposed Modification to § I, ECF No. 336-4 at PageID 10356.)
The Hearing on the issue of modification began on June 17, 2020 and concluded on June
22, 2020. The Parties then submitted post-hearing briefs. For the first time in its Post-Trial
Brief, the City requested an additional modification to § H of the Decree. (See ECF No. 348 at
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PageID 11399–40.) The ACLU-TN opposes this request. (See ACLU-TN Post Hearing Br., ECF No. 349 at PageID 11417–18.)
II. TRIAL TESTIMONY
A. Dr. Rachel Levinson-Waldman Dr. Rachel Levinson-Waldman was the first witness called at the Hearing. (See June 17, 2020 Tr., ECF No. 334 at PageID 10721–91.) Levinson-Waldman is a member of the Monitoring Team and a lawyer who currently works for the Brennan Center for Justice at New York University School of Law. (See id. at PageID 10721, 10723, 10733.) She is an expert in government surveillance techniques, and her scholarship focuses on the “balance of information sharing between the Government and the people in [] democratic society . . . .” (Id. at PageID 10732:9-11.) Levinson-Waldman’s testimony provided an overview of the use of social media by law enforcement both at the federal and state levels. She provided an overview of federal agencies’ social media investigative guidelines and policies. (See id. at PageID 10741–42: 22-25, 1-5; see also Trial Ex. 3.) Levinson-Waldman expressed her concerns regarding the FBI’s social media policies, which the City used as a model for its proposed social media policies submitted to the Court in December 2019. (June 17, 2020 Tr., ECF No. 344 at PageID 10743:11-13, 10746:1119.) The FBI policies permit social media investigations that “are not criminally predicated,” that do not require “individualized suspicion of wrongdoing” and that “use [] fairly intrusive surveillance and other investigative techniques.” (Id. at PageID 10743:14-20.) Levinson-Waldman testified about her experience as a member of the Monitoring Team. For example, Levinson-Waldman detailed the ways in which the MGU uses social media
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accounts, especially undercover accounts, as part of its criminal investigations. (Id. at PageID 10756–57.)
Levinson-Waldman testified to the different types of social media accounts used by law enforcement. (See id. at PageID 10780–10782.) Levinson-Waldman differentiated between an “impersonator account” (an account that impersonates a real person or persona) and a “fictious account” (along the lines of the “Bob Smith” account). (See id. at PageID 10781.) The latter of those accounts is not an undercover account. (Id. at PageID 10781:15-20.) As a matter of “good policy and accountability,” undercover accounts should be “subject to oversight and supervision.” (Id. at PageID 10782:7-12.)
Levinson-Waldman expressed her concerns over the City’s and the ACLU-TN’s proposed modifications to the Kendrick Consent Decree. Specifically, she testified to the problems with the City’s proposed definition of “legitimate police purpose” and the proposed modifications to § G of the Decree. (See id. at PageID 10762–63.) Levinson-Waldman particularly took issue with the proposed definition’s use of the term “threat assessment” and the reference to “cyberbullying” included in paragraph 8 of the Parties’ proposed modification to § G. (Id. at PageID 10763:3-18)
Levinson-Waldman also testified to her concerns with the Parties’ proposed definition of First Amendment-related intelligence. (Id. at PageID 10786–87.) She expressed her concern with the language “solely due to or on the basis of various exercises of the First Amendment.” (Id. at PageID 10788:21-25, 10789:1-8.) In her opinion, adding the language “in whole or in part” before that phrase would better preserve the intent of the Decree. (See id. at PageID 10789:2-8.)
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B. Dr. Theron Bowman Dr. Theron Bowman was the second witness called at the Hearing. (See June 17, 2020 Tr., ECF No. 344 at PageID 10792–851.) Dr. Bowman is a police practices expert. (Id. at PageID 10793:1-3; see also Bio and Resume, Trial Ex. 7.) He has over thirty-seven years of law enforcement experience and is the Monitoring Team’s police practices expert. (ECF No. 344 at PageID 10793:6-7, 10802:17-20, 10803:8-14.) Dr. Bowman explained the purpose of consent decrees. (Id. at PageID 10807–12.) Consent decrees are rare and affect less than twenty U.S. police departments. (Id. at PageID 10808:17-20.) A consent decree indicates that a police agency has “agreed to subject itself to a set of standards to bring it into compliance with an area that is problematic and typically extralegal.” (Id. at PageID 10808:21-25.) Higher standards apply to police departments bound by such decrees, and such departments establish new “best practice[s].” (Id. at PageID 10809:512.) Dr. Bowman expressed his opinion with regards to several of the City’s proposed modifications. (Id. at PageID 10813–815.) Dr. Bowman testified that the inclusion of the language “and/or ensuring the safety of the public and law enforcement personnel” to the proposed definition of legitimate law enforcement purposes is problematic. (Id. at PageID 10814:1-16.) Including the safety of law enforcement personnel as a legitimate law enforcement purpose would encompass “officer-created jeopardy situations,” whereby an officer can “legitimize[]” a situation they created even though it would otherwise be an impermissible law enforcement purpose. (Id. at PageID 10814:17-25, 10815:1-5.) Dr. Bowman suggests removing this language and adding “while adhering to law and agency policy designed to protect privacy,
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free speech, association and other civil rights and civil liberties of all people.” (Id. at PageID 10815:6-11.)
Dr. Bowman questioned the City’s rationales for modifying the Kendrick Consent Decree. (See City’s Pre-Trial Br., ECF No. 324.) Dr. Bowman stated that there exists no large body of generally accepted modern police practices. (ECF No. 344 at PageID 10816.) The body of knowledge is “not coherent” and requires “looking at the unique circumstances for a particular city or circumstance,” which is especially true for a city subject to a consent decree. (Id. at PageID 10816:10-25, 10817:5.) Social media is just “one form of open source information, and most of what’s out there on social media has no legitimate law enforcement value whatsoever.” (Id. at PageID 10817:13-17.) There is no dispute that technology has an important place in policing, and that the Kendrick Consent Decree predates many of these advances in technology. (See generally id. at PageID 10834–35.)
Dr. Bowman testified that open source information has a specific meaning and described the four categories of open source information available to law enforcement. (See generally ECF No. 344 at PageID 10818–20.) To Dr. Bowman, the Kendrick Consent Decree does not prohibit the MPD’s use of all types of open source information. (Id. at PageID 10820:12-16.)
Dr. Bowman also testified that § I of the Decree does not prevent the City’s continued participation in the Joint Terrorism Task Force, the MGU, or any other multi-agency groups of the MPD. (Id. at PageID 10821–22.) In Dr. Bowman’s opinion, very little of the information shared by such agencies with the MPD would implicate the Decree. (Id. at PageID 10822:1-15.)
The City questioned Dr. Bowman regarding information received from the Tennessee Fusion Center. (Id. at PageID 10827–30; see Tennessee Fusion Center Bulletin, Trial Ex. 8.)
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Dr. Bowman generally testified that the MPD should vet that information before distributing it to MPD officers in the way the MPD deems appropriate. (ECF No. 344 at PageID 10829–30.)
C. David McGriff David McGriff was the third witness called at the Hearing. (See June 17, 2020 Tr., ECF No. 344 at PageID 10852–83.) McGriff is a Deputy Commissioner with the Tennessee Department of Children’s Services. (Id. at PageID 10852:15-15.) McGriff was previously the Deputy Commissioner and Chief of Staff for the Tennessee Department of Safety & Homeland Security. (Id. at PageID 10853:9-11, 10856:15-21.) He has forty-four years of law enforcement experience. (Trial Ex. 9.) McGriff is a member of the Monitoring Team. (Id. at PageID 10859:1-2, 20-23.) He directs the audit of the City’s police practices to bring them into compliance with the Kendrick Consent Decree and has helped craft the Monitor’s audit and compliance plan for the City. (Id. at PageID 10860:3-12; see also Audit and Compliance Plan, Trial Ex. 10.) The audit and compliance plan for the City will be modified following the issuance of this Opinion and Order. (ECF No. 344 at PageID 1062–63.) The City questioned McGriff on the value of Tennessee Fusion Center Bulletins. (See id. at PageID 10867–71.) McGriff testified that Fusion Center bulletins are compiled from several sources “via Teletype or Internet by other law enforcement agencies” and from social media. (Id. at PageID 10868:4-10.) The source of the information is not evident from the bulletins’ face. (Id. at PageID 10868:17-20.) An MPD officer attempting to determine where the information came from could “call the Fusion Center and speak to one of the [Fusion Center’s] intel analysts that put[] these bulletins together . . . .” (Id. at PageID 10869:6-13.) For longer bulletins, this would be time consuming. (Id. at PageID 10878:24-25, 10879:1-4.)
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Typically, Fusion Center bulletins include information about individuals who have outstanding arrest warrants, provide descriptions of criminal suspects, or contain “be-on-thelookout” alerts. (Id. at PageID 10871:23-25, 10872:1-8.) This information is received from “agencies within the state or from out of state about nonspecific type[s] [of] information [rather] than” detailed reports. (Id. at PageID 10873:2-6.) Some bulletins are “[t]hreat assessment” bulletins. (Id. at PageID 10876:2-21.) Fusion Center intel analysts prepare the bulletins and receive training on how to compile and verify the information they receive. (Id. at PageID 10874:3-22.) The bulletins are designed to inform Tennessee law enforcement about potential threats to public safety. (Id. at PageID 10877:7-10.) Law enforcement agencies assess the value of this information for themselves and are not required to accept the information. (Id. at PageID 10080:18-25, 10882:2-9.)
D. Dr. Sheila Peters Dr. Sheila Peters was the fourth witness called at the Hearing. (See ECF No. 344 at PageID 10884–902.) Dr. Peters is an associate professor of psychology at Fisk University and is a licensed psychologist. (Id. at PageID 10884:22-24.) She currently works for the monitoring team as part of the Monitor’s community engagement plan. (Id. at PageID 10886:23-25.) She updated the Court on her progress towards completing her involvement in the community engagement plan.1 E. Independent Monitor Edward Stanton III Independent Monitor Edward Stanton III was the fifth witness called to testify. (See June 17, 2020 Tr., ECF No. 344 at PageID 10903–926; see also June 18, 2020 Tr., ECF No. 345 at
1 The input of the community is an important part of the Kendrick Consent Decree litigation. Such input, while extremely valuable, does not constitute evidence in this proceeding. (See ECF No. 293 at PageID 9098.) Dr. Peters’s final report, Community Engagement: Focus Groups on Policing and the Kendrick Consent Decree, was filed on August 26, 2020. (ECF No. 368.)
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PageID 10939–48.) Stanton was the United States Attorney for the Western District of Tennessee from 2010 to 2017. (Id. at PageID 10905:1-5.)
The City questioned the Monitor regarding certain Requests for Authorization (“RFAs”) submitted by the City to the Monitor for his review and approval in late summer and early fall 2019. (See id. at PageID 10905–21.) These RFAs led to the Court’s Order Denying the City’s Motion for Immediate Modification of the Kendrick Consent Decree. (Id.; Order Den. Mot. for Immediate Modification, ECF No. 250.) The Monitor testified that the language of § I is clear, having been clarified by the Court’s Order of November 13, 2019. (See, e.g., ECF No. 344 at PageID 10917:21-25; 10918:1-3, 10921:22-25, 10922:113.)
One of these RFA’s involved an October 2019 tip from a private citizen detailing a public safety threat to a Memphis Grizzlies game. (See Sealed Trial Ex. 14.) The Monitor found that the MPD’s receipt of this information did not implicate § I of the Decree. (June 18, 2020 Tr., ECF No. 345 at PageID 10942:3-8.) The Monitor found that the RFA did, however, violate the Decree because sharing this information with a third party would violate § H of the Decree. (See Monitor’s October 11, 2019 Letter, Trial Ex. 14; see also June 18, 2020 Tr., ECF No. 345 at PageID 10942:9-14.)
The Monitor testified regarding two specific instances in which he found the City not to have complied with the Kendrick Consent Decree or the Court’s 2018 Order and Opinion. (See, e.g., ECF No. 344 at PageID 10924:1-7.) The first arose out of the September 2019 American Federation of State, County and Municipal Employees (“AFSCME”) Labor Day Parade. (Id. at PageID 10924:8-10.) The second involved the City’s noncompliance with the Court’s Order
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Memorializing Sanctions.2 (See id. at PageID 10924:19-24; see also Order Memorializing Sanctions, ECF No. 152.)
F. John Henegan John Henegan was the last member of the Monitoring Team to testify. Henegan is a lawyer at the law firm Butler Snow LLP. (ECF No. 345 at PageID 10950:2-4.) He is the Monitoring Team’s First Amendment expert. (See id. at 10958:24-25, 10959:1-6.) Henegan testified to the City’s proposed changes to the Kendrick Consent Decree. (See id. at PageID 10967.) Henegan provided his own marked version of the Parties’ Jointly Proposed Modified Decree. (Id. at PageID 10970:23-25, 10971:1-11.) The Court sustained the City’s objection to Henegan’s opinion testimony and will not consider his opinion on the subject. G. MPD Director Michael Rallings Michael Rallings, Director of the MPD, was the first witness called by the City. (See ECF No. 345 at PageID 10983–11065; see also June 18, 2020 Tr., ECF No. 346 at PageID 11194–236.) Director Rallings has served as MPD Police Director since 2016 and has been an MPD officer for over thirty years. (ECF No. 345 at PageID 10983:16-25.) He oversees roughly 2,056 commissioned officers and more than 3,000 total employees. (Id. at PageID 10986:15-22.) Director Rallings testified to the policing challenges posed in Memphis. Memphis is considered one of the “most challenged cities in the nation”; the City of Memphis received approximately 118,000 incident reports3 last year, most of which were criminal in nature, and the “volume, the frequency, [and] the rate and severity of violent crime” in Memphis caused it to earn this designation. (Id. at PageID 10987:7-25, 10988:1-2.) Memphis also poses a unique
2 On August 19, 2020, the Court found that the City had not complied with Sanction 5 of the Court’s Order Memorializing Sanctions. (See ECF No. 363.)
3 Director Rallings clarified that these incident reports are from the Tennessee Incident Based Reporting System and range from misdemeanor reports to felonies. (Id. at PageID 11061:9-12, 11062:14-20.)
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challenge to law enforcement because it is bordered by two states and up to seventy to seventyseven million interstate travelers travel through the City each year. (Id. at PageID 10988:11-24.) Additionally, Memphis’s geographic size and its demographics create unique policing problems. (Id. at PageID 10989:2-22.)
Director Rallings’ testimony also stressed the importance of technology to the MPD. He testified to the MPD’s expanded use of neighborhood “SkyCop Cameras.” (See, e.g., id. at PageID 10992:1-19.) MPD officers issue police reports and access online police databases via their smartphones, and every MPD officer wears a body worn camera. (Id. at PageID 10992:2025, 10093:1-21, 10996:2-23.) To Director Rallings, no “modern police agency [] could operate on paper and pencil.” (Id. at PageID 10994:5-7.)
Director Rallings testified to the critical importance of social media to modern policing. He explained that MPD officers are confused as to when and how they may use social media under the Consent Decree. (Id. at PageID 11000:10-18.) To Director Rallings, “social media is here to stay.” (See, e.g., id. at PageID 11001:3-10.)
Director Rallings testified that the MPD is also active in several information sharing programs that are critical to the MPD’s public safety mission. Director Rallings testified to the importance of the Trust Pays program with Shelby County Schools. (See id. at PageID 11002:224.) Trust Pays tips involve information gathered by third parties on social media. (See id. at PageID 11003:6-10.) Director Rallings testified that his “fear is that an officer that takes a literal interpretation of the Consent Decree may hesitate or may not be able to get information to the appropriate people, and it could result in some type of tragic incident.” (Id. at PageID 11004:1115.) CrimeStoppers, which has helped solve over 200 criminal cases and at least twenty-two homicides, raises similar issues. (See, e.g., id. at PageID 11005:9-12.)
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Director Rallings testified to the importance of Tennessee Fusion Center bulletins to the MPD. Director Rallings relies heavily on the Tennessee Fusion Center’s bulletins because they provide information about something that “can happen in Nashville that could have an impact on Memphis” or that happens in “Minnesota that could have an impact on Memphis.” (Id. at PageID 11012:4-18.) Director Rallings’ testimony addressed the specific situational awareness bulletin discussed by David McGriff. (See generally id. at PageID 11023–32.) He testified that it would be “unreasonable” for the MPD to track down where every piece information included in these bulletins came from to ensure that the information was not gathered in a way that would violate the Kendrick Consent Decree. (Id. at PageID 11036:15-25.) Director Rallings “narrowly” agreed that some of the information received from the Tennessee Fusion Center does not lead to the opening of a criminal investigation by the MPD. (See June 19, 2020 Tr., ECF No. 346 at PageID 11219:24-25.) To Director Rallings’ knowledge, the MPD has never initiated a criminal investigation based on Fusion Center bulletins. (Id. at PageID 11220:14-15.)
Director Rallings testified to the critical need to share information with third party businesses. (See June 18, 2020 Tr., ECF No. 345 at PageID 11018–19.) To Director Rallings, Memphis has critical infrastructures which can only be protected by sharing information with these third parties. (See id.) Rallings testified that it is “absolutely critical” to coordinate with these institutions. (Id. at PageID 11020:12-13.)
Director Rallings also testified to the need to respond to protests and public safety threats posed by political gatherings. (See id. at PageID 11005–08.) Director Rallings’ testimony referenced the Charlottesville, Virginia August 2017 rallies and the after-action report on the protests. (See Trial Ex. 18.) The after-action report found that the Charlottesville Police Department operated with an “operational blind spot” because it failed to make use of social
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media in the days leading up to the protests. (ECF No. 345 at PageID 11007:24-25, 11008:1-5.) Director Rallings fears that Kendrick Consent Decree leaves the MPD with a similar blind spot. (Id. at PageID 11008:19-25.) Director Rallings testified that the Charlottesville protests and the findings of the after-action report are particularly salient to Memphis following the protests that occurred on the Hernandez De Soto Bridge in 2016. (See generally id. at PageID 11009–10.) Rallings testified that before the bridge protests, Memphis activists were communicating via Facebook Live and other forms of social media. (Id. at PageID 11022:11-13.)
Director Rallings next testified that he is confused by some of the Decree’s language. (See, e.g., id. at PageID 11040.) Director Rallings testified that he and MPD officers are particularly confused by the meaning of the term “political intelligence.” (Id. at PageID 11041:17-23.) Director Rallings provided as an example officers’ confusion over their response to the 2019 AFSCME Labor Day parade. (See id. at PageID 11042:2-14.) Director Rallings believes that replacing the phrase political intelligence with the phrase First Amendment-related intelligence would help clarify this confusion. (Id. at PageID 11058:21-25.)
Director Rallings testified that modification of the Decree could clear up much of this confusion among MPD officers. (June 19, 2020 Tr., ECF No. 346 at PageID 11198:20-24.) Including language from the Court’s rulings in MPD policies could help clear up some of his confusion over the meaning of certain provisions of the Decree. (Id. at PageID 11199:2-5.) Director Rallings testified that training MPD officers on the Decree would go a long way to ensure that officers understand the Decree. (Id. at PageID 11203:16-24, 11235:2-11.)
With regards to § G, the Director testified that he has found it difficult to approve some of the investigations requiring review and authorization under the Decree in a timely manner. Director Rallings testified that, for example, while he was overseas this past year, he was unable
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to access his phone and email and could not authorize several investigations. (ECF No. 345 at PageID 11049:2-7.) Rallings testified that he has also found it difficult to determine whether an investigation would implicate the Kendrick Consent Decree or whether it was permitted by the Decree. (See id. at PageID 11053:5-25.) Rallings testified that delegating some of these duties to other MPD officials would be beneficial. (See id. at PageID 11055:10-21; see also June 19, 2020 Tr., ECF No. 346 at PageID 11206:20-24.)
H. Deputy Director Donald Crowe Donald Crowe testified on the third day of the Hearing. (See June 18, 2020 Tr., ECF No. 345 at PageID 11067–136.) Donald Crowe is the Deputy Chief of Police of the MPD. (Id. at PageID 11067:12.) Deputy Chief Crowe is the Deputy Chief for Information Technology (“IT”) for the MPD. (Id. at PageID 11068:16-17.) In his role as Deputy Chief for IT, Deputy Chief Crowe is responsible for all the MPD’s computer systems and technology systems, including the MPD’s body worn cameras, pole-mounted cameras, the MPD’s Realtime Crime Center, and MPD databases. (Id. at PageID 11068:17-22.) He also oversees the MPD’s Department of Homeland Security. (Id. at PageID 11068:23-24.) Deputy Chief Crowe testified to the importance of technology to the MPD and modern law enforcement. Deputy Chief Crowe testified that the use of video systems and surveillance equipment is a crucial part of the MPD’s public safety mission. (Id. at PageID 11069:2-15.) He also testified that issues remain over MPD officers’ ability to make use of certain equipment and technologies under the Decree. (See, e.g., id. at PageID 11070:16-22.) Questions arose regarding the MPD’s use of the Blue CRUSH camera4 located outside of Memphis City
4 Blue CRUSH cameras are pole-mounted cameras mounted throughout Memphis. They have three cameras located inside a single box, and one of the cameras has a pan-tilt-zoom functionality. (Id. at PageID 11072.) This allows the camera operator to move the camera to track emergent situations. (Id. at PageID 11072– 73.) The video feed is livestreamed to the MPD’s Realtime Crime Center. (Id. at PageID 11073.)
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Hall. (Id. at PageID 11071:7-13.) The City Attorney, Jennifer Sink, instructed the MPD, based on the Independent Monitor’s response to an RFA, to disconnect the camera’s pan-tilt-zoom feature where several gatherings involving First Amendment activities took place. (Id. at PageID 11073:9-16.) According to Deputy Director Crowe, losing this feature limited the ability of police to respond to dangerous situations. (Id. at PageID 11074:1-19.)
A second issue raised by Deputy Director Crowe’s testimony involved the MPD’s use of body worn cameras. (See id. at PageID 11076:8-19, 11078:3-10.) Deputy Director Crowe testified that adding language to the Decree directly relating to the use of body worn cameras would greatly improve MPD officers’ understanding of the permissibility of such cameras. (Id. at PageID 11078:11-25.) Having a “clear and concise” body worn camera policy that is “simple and easy to apply in the field” would greatly aid MPD officers. (Id. at PageID 11079:1-6.)
Deputy Director Crowe testified that incorporating provisions of this Court’s Orders into the Decree would help officers fulfill their duties while abiding by the tenets of the Decree. (Id. at PageID 11080:7-22.) He testified that having a definition of legitimate law enforcement purpose would be of critical importance to MPD officers. (Id. at PageID 11082:8-22.) He also testified that clarifying the permissibility of the use of social media in purely online crimes, such as cybercrimes and child pornography investigations, would greatly aid MPD officers’ understanding of the Decree. (Id. at PageID 11096:1-14.) He testified that changing “political intelligence” to “First Amendment-Related intelligence” would also be beneficial. (Id. at PageID 11086:24-25, 11087:13.)
Like other witnesses, Deputy Director Crowe testified to the extent to which the term “assessments” and “threat assessments” qualify as a legitimate law enforcement activity. (See
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id. at PageID 11091:23-25, 11092:114.) He testified that having the ability to conduct threat assessments would greatly help MPD personnel. (Id. at PageID 11092:4-14.)
I. Major Darren Goods The City’s third witness called to testify was Major Darren Goods. (June 19, 2020 Tr., ECF No. 346 at PageID 11240–92.) Major Goods has been an MPD officer for over thirty-five years. (Id. at PageID 11240:7-18.) He has been the Operations Commander for the MGU since 2015. (Id. at PageID 11240:19-23.) The MGU is a multi-agency law enforcement unit governed by a six-member executive board that includes the Director of the MPD, the Shelby County Sheriff, the Shelby County District Attorney General, the FBI Special Agent in Charge, the head of the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the United States Attorney for the Western District of Tennessee. (Id. at PageID 11240:8-21.) The MGU is the law enforcement equivalent of a joint venture. (Id. at PageID 11243:2-16.) All MGU investigations have “some type of criminal nexus” or arise out of criminal activity. (Id. at PageID 11246:14-16.) The MGU does not investigate individuals for purely political reasons. (Id. at PageID 11246:19-25.) Major Goods testified to MPD’s officers confusion regarding the applicability of the Decree to their investigations. (Id. at PageID 11248:2-16.) Major Goods specifically pointed to one instance in which MGU officers “stopped [an] investigation altogether” because, in the course of investigating gang activity, officers realized that the individuals who “lived on that street or frequented that street” were political activists, although the activists had nothing to do with the investigation (Id. at PageID 11250:3-25, 11279:7-9.) Major Goods testified to the MGU’s extensive use of social media accounts. Many MGU officers create social media accounts without MGU supervision. (Id. at PageID 11255:1-8.)
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These “alias accounts” are designed both to protect undercover officers from detection by suspects when searching social media and to avoid tipping off the suspect to the investigation. (Id. at PageID 11255:9-25, 11256:1-2, 11285:18-21.) An alias account uses a different name from the officer’s name but does not use an undercover persona. (See id. at PageID 11283:5-20.)
MGU officers also use social media accounts based on their undercover personas. (Id. at PageID 11257:15-18.) The officers, who receive formal undercover operations training, “use their account[s] to friend different gangs[] and people that are involved in criminal activity,” and any social media search has a “criminal nexus.” (Id. at PageID 11257:21-25, 11258:1-6.) MGU officers do not use accounts like the “Bob Smith” account. (Id. at PageID 11259:19-25, PageID 11260:1-2.) The MGU does not use impersonator accounts. (Id. at PageID 11284:6-7.) Nor are undercover social media accounts unsupervised. (See id. at PageID 11287:21-25, 11288:1.)
Darren Goods testified to his confusion over § I’s limitations. Major Goods testified that he interprets § I in a restrictive manner. (See id. at PageID 11267:15-23.) Prior to his testimony, Major Goods had not relied on the Court’s November 2019 Order on § I. (Id. at PageID 11289:25, 11290:1-4.)
J. Zayid Saleem Zayid Saleem was the City’s fifth witness.5 (See June 19, 2020 Tr., ECF No. 346 at PageID 11293–327.) Saleem is a Senior Assistant City Attorney for the City of Memphis and is currently serving as the Police Legal Advisor for the MPD. (Id. at PageID 11294:13-15.) He has worked with the MPD since late 2010. (Id. at PageID 11295:16.) Saleem is largely responsible for the training of MPD officers, police executives, and legal advisors on legal issues surrounding policing. (Id. at PageID 11296:10-19.) Saleem has
5 The City’s expert witness, Eric Daigle, was the fourth witness called by the City, but he completed his testimony on the final day of the Hearing. The Court provides a summary of his testimony last.
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been deeply involved in understanding the limitations of the Kendrick Consent Decree and communicating these limitations to officers. (Id. at PageID 11298:1-25, 11299:1-6.) The MPD’s in-service training program in connection with the Kendrick Consent Decree began in January 2020, starting with the training of MPD command staff and followed by training of MPD lieutenants. (Id. at PageID 11299:7-16.) This training program incorporates the Court’s interpretations of the Decree. (Id. at PageID 11322:21-25, 11323:1.) Saleem stated that it would be “impossible to do en masse training” for all MPD officers on “something this complex.” (Id. at PageID 11299:17-22.) He testified that most officers go to the kiosk to read the Decree to understand its tenets. (Id. at PageID 11301:18-22.)
Saleem testified to the MPD’s confusion over the term “legitimate law enforcement purpose.” (Id. at PageID 11303.) To Saleem, having the Parties’ proposed definition incorporated into the Decree would aid in officers’ understanding of the Decree. (Id. at PageID 11303:7-25.) He testified that adding the language that an officer should reject information or should request authorization pursuant to § G only if they “reasonably should know” the tip or information would implicate First Amendment-related intelligence or political intelligence would help MPD officers better comply with the Decree. (Id. at PageID 11306:18-23.) As with several other witnesses, Saleem detailed officers’ confusion over the 2019 AFSCME Labor Day parade as an example of the need to further clarify the Decree. (See id. at PageID 11308–09.)
K. Jennifer Sink Jennifer Sink is the Chief Legal Officer for the City of Memphis. (Id. at PageID 11328:23-24.) Sink is directly involved in the City’s efforts to comply with the Kendrick Consent Decree. (See id. at PageID 11221–32.)
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Sink testified to the RFA procedure and several specific requests she submitted to the Monitor for review. (See, e.g., id. at PageID 11337:3-25.) She referred to an RFA dated May 28, 2020, in which the Tennessee Fusion Center identified an individual’s tweet which said, “[W]e need to kill all cops for sport.” (Id. at PageID 11339:15-23.) She testified that in her opinion whether the MPD could receive this information fell into the Decree’s “gray area.”6 (See id. at PageID 11340:2-12.) The Monitor promptly authorized the RFA. (Id. at PageID 11342:16-18, 11363:2-7.) A similar RFA from the same day involved a social media post that called for “burning down all the police precincts in Memphis.” (Id. at PageID 11343:10-11.)
Sink testified that she believes the phrase “cooperate with” as used in § I of the Decree is unclear. (Id. at PageID 11351:15-23.) Sink testified that the use of this language in the “context of a joint multi-agency task force or unit” would “seem inherently [to mean] that doing something jointly” is a form of “cooperating with” outside agencies. (Id. at PageID 11351:1719.)
L. Eric Daigle Eric Daigle, the City’s policing expert, testified on June 18, 2020 and June 22, 2020. (See June 18, 2020 Tr., ECF No. 345 at PageID 11137–79; see also June 22, 2020 Tr., ECF No. 343 at PageID 10624–71.) Daigle is an attorney in Connecticut. (ECF No. 345 at PageID 11139.) He operates the Daigle Law Group, a consulting group that provides guidance and operation oversight to police departments, correctional facilities and security groups. (Id. at PageID 11139:25, 11140:1-6.) Daigle was a Connecticut state trooper for ten years. (Id. at PageID 11140:17-22.) He has served as a member of the monitoring team for the Oakland
6 The Court made clear that this is not something the Decree, and more specifically § I of the Decree, would prevent the City from receiving and acting on in a timely fashion. (See id. at PageID 11340:20-22.)
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Police Department in Oakland, California and has consulted for law enforcement agencies subject to consent decrees. (Id. at PageID 11147:18-19, 11148:3-17.)
Daigle disagreed with Dr. Bowman’s opinion that the term “prevention of crime” includes public safety and the safety of law enforcement officers. (See id. at PageID 11154.) Specifically, he testified that “information threat assessment analysis,” which deals with evaluating and ensuring public safety, is not necessarily related to crime prevention. (Id. at PageID 11154:11-18.) To Daigle, intelligence gathering and threat assessment are necessary to ensure “that individuals who want to express their First Amendment right can do so with all the required protections of the law.” (Id. at PageID 11166.)
Daigle also testified to the changes in law enforcement practices since the Consent Decree was entered in 1978. (See, e.g., id. at PageID 1156–57, 11164.) Daigle testified that technology has changed the way police departments operate and that social media has profoundly affected policing. (See id. at PageID 11157–58.) Daigle, for example, testified that cameras are now a major part of policing, and that “everybody believes there’s a benefit in recording and having video recording because it makes things easier to discuss later.” (Id. at PageID 11174:14-17.) Daigle testified that “any reasonable interaction with law enforcement or security industry . . . would tell you that social media is a treasure-trove of information.” (Id. at PageID 11158:18-209.)
Daigle elaborated on officers’ use of social media. (See June 22, 2020 Tr., ECF No. 343 at PageID 10629.) He views social media in three levels. (See id. at PageID 10629:1-2.) “[A]pparent/overt use” is “where the law enforcement officer’s identification does not need to be concealed in any way.” (Id. at PageID 10629:7-12.) Daigle calls the second level “discreet use”; it involves “no interaction between the law enforcement officer and any member of the public
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maintaining the social media account.” (Id. at PageID 10629:22-25, 10630:1-6.) The third and most invasive level under Daigle’s system is “covert use” which involves the use of another name or identity and requires the “most intensive guidelines or supervision controls[.]” (Id. at PageID 10630:10-23.) Daigle provided little guidance on how best to implement these criteria. (See id. at PageID 10631:3-8.) Daigle equated training police officers on these three levels to training officers regarding the different levels of Fourth Amendment protections. (Id. at PageID 10632:3-10.)
Daigle testified that police should have broad authority to respond to First Amendment gatherings and protests. (See id. at PageID 10633–38.) It is Daigle’s view that law enforcement should be present at all protests or First Amendment events, regardless of their content or their size, to ensure the safety of the public and law enforcement. (See generally id.)
Daigle believes that it is a best police practice to “share personal information . . . collected in the course of a criminal investigation with a private entity like a security force of a private company.” (Id. at PageID 10638:13-19.) Daigle testified that modern policing requires interagency information sharing. (Id. at PageID 10641.)
III. LEGAL STANDARD
“A consent decree is essentially a settlement agreement subject to continued judicial policing.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983). A consent decree shares the “attributes of both a contract and of a judicial act.” Id. (citing United States v. ITT Cont’l Banking Co., 420 U.S. 223, 236 n.10 (1975)). “It is both ‘a voluntary settlement agreement which could be fully effective without judicial intervention’ and ‘a final judicial order . . . plac[ing] the power and prestige of the court behind the compromise struck by the parties.’” Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1017 (6th Cir. 1994) (quoting
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Williams, 720 F.2d at 920). Because a consent decree “memorializes the bargained for position of the parties,” it “should be strictly construed to preserve the bargained for position of the parties.” Williams, 720 F.2d at 920. The “scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it or by what might have been written had the plaintiff established his factual claims and legal theories in litigation.” Vanguards, 23 F.3d at 1017 (quoting Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 574 (1984)) (internal quotation marks omitted).
“Once approved, the prospective provisions of a consent decree operate as an injunction.” Id. at 1018 (quoting Williams, 720 F.2d at 920) (internal quotation marks omitted); see also Waste Mgmt. of Ohio, Inc. v. City of Dayton, 132 F.3d 1142, 1145 (6th Cir. 1997). The court “retain[s] jurisdiction over the decree during the term of its existence” to “protect the integrity of the decree with its contempt powers” and to “modify the decree should ‘changed circumstances’ subvert its intended purpose.” Williams, 720 F.2d at 920. Despite the contractual nature of a consent decree, the court is “not bound under all circumstances by the terms contained within the four corners of the parties’ agreement.” Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1148 (6th Cir. 1992).
Federal Rule of Civil Procedure 60(b) governs the modification of consent decrees. See Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 378 (1992). The Rule provides six grounds by which a party, upon motion, may be relieved of “a final judgment, order, or proceeding.” Fed. R. Civ. P. 60(b)(1)–(6). Under Rule 60(b)(5), a party may seek relief from a final judgment, order or proceeding on the grounds that “the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable.” Fed. R. Civ. P. 60(b)(5).
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The “party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree.” Rufo, 502 U.S. at 383. “Modification of a consent decree may be warranted” under Rule 60(b)(5): (1) “when changed factual conditions make compliance with the decree substantially more onerous”; (2) “when a decree proves to be unworkable because of unforeseen obstacles”; or (3) “when enforcement of the decree without modification would be detrimental to the public interest.” Vanguards, 23 F.3d at 1018 (quoting Rufo, 502 U.S. at 367).
Courts should take a flexible approach to modification of institutional reform decrees. Horne v. Flores, 557 U.S. 433, 450 (2009); see also Rufo, 502 U.S. at 381; Lorain, 979 F.2d at 1149 (6th Cir. 1992). Courts must employ a flexible approach to modification of institutional reform consent decrees because they “remain in force for many years, and the passage of time frequently brings about changed circumstances . . . that warrant reexamination of the original judgment.” Horne, 557 U.S. at 448. Such decrees implicate “sensitive federalism concerns” and involve dynamics not found in other types of litigation. Id.; see also Missouri v. Jenkins, 515 U.S. 70, 99 (1995). Binding later local officials to their predecessors’ decisions may “improperly deprive future officials of their designated legislative and executive powers.” Horne, 557 U.S. at 449 (quoting Frew v. Hawkins, 540 U.S. 431, 441 (2004)). The court must “defer to local government administrators” when modifying institutional reform decrees because such individuals have the “‘primary responsibility for elucidating, assessing, and solving’ the problems of institutional reform . . . .” Rufo, 502 U.S. at 392 (quoting Brown v. Board of Education, 349 U.S. 294, 299 (1955)).
Modification is not warranted in all circumstances. Rufo, 502 U.S. at 383. “Rule 60(b)(5) provides that a party may obtain relief from a court order when ‘it is no longer equitable
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that the judgment should have prospective application,’ not when it is no longer convenient to live with the terms of a consent decree.” Id.
If the moving party demonstrates that changed factual circumstances warrant modification, the court must determine whether “the proposed modification is suitably tailored to the changed circumstances.” Id. at 391. “[T]hree matters should be clear.” Id. First, “a modification must not create or perpetuate a constitutional violation.” Id. Second, “[a] proposed modification should not strive to rewrite a consent decree so that it conforms to the constitutional floor.” Id. Third, “[t]he court should not ‘turn aside to inquire whether some of [the provisions of the decree] upon separate as distinguished from joint action could have been opposed with success if the defendants had offered opposition.’” Id. at 392 (quoting United States v. Swift & Co., 286 U.S. 106, 116–17 (1932)).
IV. ANALYSIS
A. The ACLU-TN and the City’s Jointly Proposed Modifications to the Kendrick Consent Decree
The Parties agree on sixteen proposed modifications to the Kendrick Consent Decree. (See ECF Nos. 309 & 327.) The analytical framework used to determine whether the parties can stipulate to modifications of a consent decree is a novel issue. This is especially true in the context of institutional reform consent decrees. The Court begins with the proposition that only the original parties to the decree, or their assignees, have standing to enforce its terms. See Evoqua Water Techs., LLC v. M.W. Watermark, LLC, 940 F.3d 222, 228 (6th Cir. 2019) (“A consent decree is not enforceable directly or in collateral proceedings by those who are not parties to it.” (quoting Williams, 720 F.2d at 920)). Because the ACLU-TN has standing to
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enforce the terms of the Kendrick Consent Decree, it has the corollary power to consent to modifications of the Decree.
Although the ACLU-TN has the authority to agree to such modifications, because the Kendrick Consent Decree is a final court judgment, the Court cannot accept the Parties’ agreed to modifications if the proposed changes do not comply with Rule 60(b). See Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, 669 F.3d 737, 741 (6th Cir. 2012) (“[A] district court is not merely an instrument of a consent decree or of the parties’ stipulations with respect to it . . . .”); see also Ne. Ohio Coal. For the Homeless v. Husted, No. 2:06–CV–896, 2013 WL 4008758, at *4 (S.D. Ohio Aug. 5, 2013) (“Despite the contractual nature of a consent decree, however, this Court is not merely an instrument of a consent decree and the decree is nonetheless subject to Rule 60(b) . . . because it is a judicial decree that is subject to the rules generally applicable to other judgments and decrees.” (quoting Ne. Ohio Coal. For the Homeless v. Husted, 969 F.3d 580, 601–02 (6th Cir. 2012)) (internal quotation marks omitted)). Although the Parties to the Agreement may have standing to propose modifications to the terms of the agreement, the Court still must determine whether the Parties have met their burden for modification under Rule 60(b)(5). See Cleveland Firefighters, 669 F.3d at 741. Under Rule 60(b), the Court may only grant the stipulated modifications to the Kendrick Consent Decree if, based on the evidentiary record before it, the Parties have demonstrated that “changed factual conditions make compliance with the decree substantially more onerous,” the decree “proves to be unworkable because of unforeseen obstacles,” and if “enforcement of the decree without modification would be detrimental to the public interest.” Vanguards, 23 F.3d at 1018 (quoting Rufo, 502 U.S. at 367). Here, the Parties have met this burden.
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The Court is especially cognizant that it must take a flexible approach to modifying institutional reform consent decrees. See Horne, 557 U.S. at 450. The significant testimony from MPD command staff and leadership demonstrates the need to update the Kendrick Consent Decree to protect the bargain struck by the Parties to the Decree in 1978 while also recognizing that law enforcement needs to effectively protect the public in a changing world. The competing interests of the First Amendment rights of the citizens of Memphis and the need for effective policing and public safety would be served by the jointly proposed modifications. The Parties’ post-trial briefing demonstrates the significant evidence in the record supporting the need for these jointly proposed modifications as well as the Parties’ reasons for each modification.7 (See City’s Post-Trial Br., ECF No. 348 at PageID 11380–400; see also ACLU-TN’s Post-Trial Br., ECF No. 349 at PageID 11411–16.)
The record demonstrates that astonishing technological change has occurred since the entry of the Consent Decree in 1978. The advent of social media, the development of body worn cameras and pole cameras and other new technologies have dramatically changed the way law enforcement agencies operate in the United States. Most, if not all, of the Parties’ jointly proposed modifications respond to the need to update the Kendrick Consent Decree to allow the MPD to effectively make use of these important technologies while protecting Memphians’ First Amendment rights.
Replacing the word “political intelligence” with First Amendment-related intelligence also does not affect the Decree’s core values. As many of the witnesses testified, MPD officers are confused as to the meaning of the term “political intelligence.” If MPD officers better
7 The Court excludes from this section the City’s Proposed Modifications to § H of the Kendrick Consent Decree, as the ACLU-TN opposes this suggested modification to the Decree. (See id. at PageID 11399–400.)
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understand the protections of the Kendrick Consent Decree, they will be better prepared to abide by its terms. The Court is satisfied that the term “First Amendment-Related intelligence” is an adequate substitute for the term “political intelligence” and protects the Kendrick Consent Decree’s core values.
The Court recognizes that the Monitoring Team raised several concerns with the Parties’ proposed modifications. Dr. Rachel Levinson-Waldman expressed her concerns with the term “threat assessments.” See supra Sec. III.A. She also expressed concerns over the inclusion of the term cyberbullying in Paragraph 8 of § G and the inclusion of certain language in the definition of First Amendment-Related Intelligence. Id. Dr. Bowman also raised concerns regarding the definition of “legitimate law enforcement purpose.” See supra Sec. III.B. The training, guidance and instruction of MPD officers on the limitations imposed on the MPD by the Kendrick Consent Decree will ensure that these concerns are not realized. The Monitoring Team’s primary role going forward is to craft the City of Memphis’s social media investigative guidelines and develop MPD training protocols to implement these guidelines. This responsibility provides the Monitoring Team with the opportunity to put in place structures to prevent such abuses.
B. Section I of the Kendrick Consent Decree
Section I currently reads: “The defendants and the City of Memphis shall not encourage, cooperate with, delegate, employ or contract with, or act at the behest of, any local, state, federal or private agency, or any person, to plan or conduct any investigation, activity or conduct prohibited by this Decree.” (Kendrick Consent Decree § I, Opinion and Order, ECF No. 151 at
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PageID 6285.) The City’s proposed modification to the Kendrick Consent Decree reads as
follows:
The defendants and the City of Memphis shall not encourage, cooperate with, delegate, employ or contract with, or act at the behest of, any local, state, federal or private agency, or any person, to plan or conduct any investigation, activity or conduct prohibited by this Decree. In other words, the City may not direct another agency to act as its surrogate to violate the Consent Decree or accept information that the City knows or should reasonably have known was collected in a manner that would violate the United States Constitution. Under this section, the City may receive information from other entities that does constitute First Amendment-Related intelligence for a legitimate law enforcement purpose provided that the City may not act upon such information without obtaining an Authorization pursuant to Section G. The City may not act upon or catalog information from other agencies constituting First Amendment-Related intelligence that is unrelated to any legitimate law enforcement purpose. Nothing in this [s]ection precludes the City from receiving tips from non-law enforcement agencies or individuals. (Trial Ex. 25, ECF No. 336-4 at PageID 10356 (emphasis in original).) The City’s proposal
would therefore remove the phrase “cooperate with” from the first paragraph of § I, would add a
line to the first paragraph of § I interpreting the section’s limitations on joint operations, and
would allow the City to accept First Amendment-related intelligence from other agencies, if
accepted for a legitimate law enforcement purpose, so long as such information sharing is
authorized pursuant to the review and authorization procedure codified by § G of the Decree.
(Compare id. with ECF No. 151 at PageID 6285.)
Before addressing the City’s proposed modifications to § I, the Court notes that much of
the City’s confusion over the meaning of § I arises out of a lack of training and top-down
supervision by MPD legal advisors and officials. The Monitor’s Post-Trial Brief summarizes
this point well. (See generally Independent Monitor’s Post-Trial Br., ECF No. 350.) Most, if not
all, of the situations where MPD officers experienced confusion over their ability to participate
in joint operations or engage in criminal investigations with other law enforcement entities did 32

not implicate § I of the Decree. For example, as Major Goods’ testimony demonstrates, it is unlikely that any information received by the MGU from outside law enforcement agencies would implicate § I or would require significant vetting under § G of the Decree. The MGU’s investigations necessarily have a “criminal nexus,” and purely criminal investigations do not implicate § I’s restrictions on joint operations. The same goes for the City’s investigations of cross-border criminal acts that require interagency information sharing and cooperation, as detailed by the testimony of Deputy Director Crowe. (See Trial Ex. 22.8) All of those investigations targeted purely criminal conduct and therefore did not implicate § I’s and the Decree’s prohibitions.
The record also demonstrates that the City has not properly instructed officers on the interpretation of § I provided by the Court in the November 13, 2019 Order Denying the City’s Motion for Immediate Modification. The Order was clear that the Kendrick Consent Decree, and § I more specifically, “require[s] the City to reject outright only information constituting political intelligence that is unrelated to any legitimate law enforcement activities.” (Trial Ex. 26, ECF No. 250 at PageID 8417 (emphasis in original).) Section I “does not prohibit the police from receiving information gathered as the result of legitimate criminal investigations, supported by reasonable suspicion or probable cause, and unrelated to any protected First Amendment activities.” (Id. at PageID 8417.) The testimony of the several members of the MPD at the Hearing demonstrates that confusion exists regarding the scope of § I. This confusion should have been eliminated by the November 2019 Order. (See, e.g., June 19, 2020 Tr., ECF No. 346 at PageID 11227–28.) The City has not adequately relayed the Court’s rulings to MPD officers.
8 This exhibit was listed for identification only and is not substantive evidence. The content was provided to the Court through the testimony of Deputy Director Donald Crowe of the MPD.
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Moreover, given that the City has yet to implement the audit and compliance program approved by the Court or to draft social media policy guidelines for use by MPD officers, it is not appropriate to modify § I based solely on confusion caused by City officials’ failure to educate MPD officers on the proper interpretation and implementation of the Kendrick Consent Decree.
MPD officers receive a wide variety of training on complex legal issues. The record does not support the conclusion that providing officers with additional training on the Kendrick Consent Decree would be ineffective or would fail to clear up officer confusion over the Decree’s prohibitions.
Despite these findings, the Court will address the merits of each of the City’s proposed modifications.
1. Meaning of the Phrase “Cooperate With”
At the Hearing, several officers of the MPD testified that they were confused or unclear as to the meaning of the term “cooperate with” as used in § I. (See, e.g., City’s Post-Trial Brief, ECF No. 348 at PageID 11404.) The City seeks to remove this phrase to clear up any confusion regarding § I’s limitations on the City’s participation in joint operations. (See id. at 11401.) The Court finds that (1) the meaning of the phrase “cooperate with” is not overly broad or confusing, and that (2) when read in the context of § I, the phrase “cooperate with” does not prevent the City from participating in joint operations with outside law enforcement agencies.
As stated above, consent decrees have the qualities of both contracts and judicial orders. See Williams, 720 F.2d at 920. The interpretation of a consent decree’s terms is governed by principles of contract law, and because a consent decree is a federal judgment, federal common law applies. See Evoqua, 940 F.3d at 239–40 (Bush, J., concurring) (“The above-stated rules of
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federal consent decree interpretation have been stated by the Supreme Court as principles of federal common law.”). “In the absence of controlling federal law, contractual interpretation of the Consent Judgment is governed by [the forum state’s] law.” Id. at 229 (citing Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 361, 372 (6th Cir. 1998)). In this case, the Court looks to Tennessee law as the source of federal common law. See Sault Ste. Marie, 146 F.3d at 372 (“Because this [consent decree] was formed in the State of Michigan, it is interpreted under Michigan law.”).
When construing contractual terms, “[the court’s] task is to ascertain the intention of the parties based upon the usual, natural, and ordinary meaning of the contractual language.” Planters Gin Co. v. Fed’l Compress & Warehouse, Co., Inc., 78 S.W.3d 885, 889–90 (Tenn. 2002) (quoting Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999)) (internal quotation marks omitted). Contractual terms and provisions “must be interpreted in the context of the entire contract[,] . . . for one clause may modify, limit, or illustrate another.” D & E Constr. Co., Inc. v. Robert J. Denley Co., Inc., 38 S.W.3d 513, 519 (Tenn. 2001) (quoting Frizzell Constr. Co. v. Gatlinburg, L.L.C., 9 S.W.3d 79, 85 (Tenn. 1999)) (internal quotation marks omitted); see also Vanguards, 23 F.3d at 1017 (The “scope of a consent decree must be discerned within its four corners . . . .”).
The meaning of the term “cooperate with” is not ambiguous. The plain and ordinary meaning of the word “cooperate” is to “act or work with another or others [or] act together or in compliance” with or to “associate with another or others for mutual benefit.” Cooperate, Miriam-Webster Dictionary, (11th ed. 2016); see also Cooperate, Oxford English Dictionary, (2d ed. 1989) (defining the intransitive verb “cooperate” as “[t]o work together, act in conjunction (with another person or thing, to an end or purpose, or in a work)” (emphasis in original)). The
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City’s assertion that the term cooperate is overbroad and prevents the City from participating in joint operations ignores the context of the phrase. Under § I, the City shall not “cooperate with . . . any local, state, federal or private agency, or any person, to plan or conduct any investigation, activity or conduct prohibited by this Decree.” (Kendrick Consent Decree § I, Opinion and Order, ECF No. 151 at PageID 6285.) The term “cooperate with,” when read in context of this limiting phrase, therefore only prohibits the MPD from cooperating with other agencies to violate or to plan to violate the Decree. Conduct prohibited by the Decree includes the gathering of, maintenance of, or dissemination of First Amendment-related intelligence. Such conduct is necessarily wholly unrelated to the investigative activities of the MPD’s joint operations, all of which deal exclusively with investigations into purely criminal conduct. And, as the November 2019 Order made clear, purely criminal investigations do not implicate the Decree’s protections. (See ECF No. 250 at PageID 8417–18.)
The City’s concerns are therefore not supported by the plain meaning of the term “cooperate with” as used in § I of the Kendrick Consent Decree. When read in its proper context, the term in no way prevents the City from cooperating with any other agency for criminal investigative purposes. It only limits joint operations where the City’s participation would be violating the Decree or where the City engages in operations or shares information for the purpose of violating the Decree. The record does not demonstrate that the activities of the MPD undertaken in connection with ongoing joint operations would violate the Kendrick Consent Decree’s ban on the gathering, maintenance, or dissemination of First Amendmentrelated intelligence.
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2. Addition of the Line: “In other words, the City may not direct another agency to act as its surrogate to violate the Consent Decree or accept information that the City knows or should reasonably have known was collected in a manner that would violate the United States Constitution. The City’s additional request to add language to the first paragraph of § I fails as a matter of law. “A proposed modification should not strive to rewrite a consent decree so that it conforms to the constitutional floor.” Rufo, 502 U.S. at 391; see also Doe v. Briley, 511 F. Supp. 2d 904, 924 (M.D. Tenn. 2007). The Kendrick Consent Decree requires the City to do more than the First Amendment requires. (See, e.g., Opinion and Order, ECF No. 151 at PageID 6276 (“The Court recognizes that the City granted its residents privacy rights above and beyond those guaranteed by the Constitution, but that may be the Consent Decree’s intended purpose.”).) Accepting the City’s modification would permit the City to violate the Decree when it shares information with other law enforcement agencies. The proposed modification would rewrite § I only to prevent the City from receiving information from outside law enforcement agencies that violates the Constitution irrespective of whether the receipt of such information violates the Kendrick Consent Decree. The City’s proposed rewriting of § I is especially troubling given that the testimony at the Hearing demonstrates the growing importance, and volume, of information sharing between law enforcement agencies. (See, e.g., June 22, 2020 Tr., ECF No. 343 at PageID 10640–41.) The possibility of allowing MPD officers to receive information gathered in violation of the Decree, so long as it was gathered by an outside law enforcement agency in the first instance, would substantially erode the core protections of the Decree.
That said, “[a]lthough state and local officers in charge of institutional litigation may agree to do more than that which is minimally required by the Constitution to settle a case and avoid further litigation,” the Court must still “keep the public interest in mind in ruling on a request to modify based on a change in conditions making it substantially more onerous to abide
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by the Decree.” Rufo, 502 U.S. at 392. The City has not demonstrated that changed circumstances warrant reducing the protections afforded citizens of Memphis by rewriting § I of the Decree to meet the constitutional floor. Nor has the City demonstrated that § I imposes such an onerous burden on the MPD that it would detrimentally affect the MPD’s ability to keep the public safe.
The City has also not provided sufficient evidence demonstrating that information received as a result of investigations conducted by MPD joint operations or received via third party information sharing programs such as Trust Pays and CrimeStoppers requires such onerous vetting to warrant a reduction of the protections afforded citizens of Memphis by the Kendrick Consent Decree. For example, the MGU, as already stated, engages exclusively in gang-related criminal investigations. MGU officers do not investigate First Amendment-related activities. Little to none of its activities will require review and authorization pursuant to § G. Furthermore, investigations by groups such as the Joint Terrorism Task Force are not likely to implicate § I of the Decree. It is unlikely that an investigation into potential terrorist threats in Tennessee or Shelby County would implicate an individual’s First Amendment rights.9 The City has not presented evidence to the Court suggesting otherwise.
The MPD’s regular receipt of situational awareness bulletins from the Tennessee Fusion Center also does not warrant modification of § I. The City has not demonstrated that the MPD’s inability to receive First Amendment-related intelligence in these bulletins would detrimentally impact the MPD’s ability to fight crime and ensure public safety. At the Hearing, Director
9 The Court recognizes that some terrorist-related investigations may implicate First Amendment-related intelligence. For example, an investigation into a religious or sociopolitical group with ties to terrorism may implicate the target individuals’ First Amendment rights. But that is exactly why modification of § G is so important. Allowing the Director to delegate individuals to review and authorize such investigations alleviates the burden placed on the MPD to vet such information.
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Rallings could not recall a single instance in which the MPD opened a criminal investigation based on information received via a Fusion Center bulletin. (See June 19, 2020 Tr., ECF No. 346 at PageID 11220:14-20.)
The types of information contained in Tennessee Fusion Center bulletins would not ordinarily implicate First Amendment-related intelligence. (See June 19, 2020 Tr., ECF No. 346 at PageID 11219:24-25.) The City’s examples of the types of information typically found in Fusion Center bulletins also would not require any review and authorization pursuant to § G. (See, e.g., id. at PageID 11220:14-20.) Information such as “be-on-the-lookout” notices or alerts that a criminal suspect may be travelling through Shelby County are purely criminal matters that would not implicate the Decree’s protections. (See June 17, 2020 Tr., ECF No. 344 at PageID 10871:23-25, 10872:1-8.) Moreover, the MPD is not required to receive these bulletins, and it would be difficult to conclude that the MPD’s need to receive generalized, nonspecific, noncrime-related information presented in bite-sized bulletins warrants modification of the Kendrick Consent Decree. (See id. at PageID 10873:2-6, 10880:18-25, 10882:2-9.)
The MPD’s need to participate in information sharing programs such as Trust Pays or CrimeStoppers programs also do not warrant modification. The information received via the Trust Pays program with Shelby County Schools generally detail threats to the safety of individuals or threats of future criminal activity that have led to the confiscation of guns, drugs, and other illegal contraband. (See, e.g., June 18, 2020 Tr., ECF No. 345 at PageID 11002:5-10; June 19, 2020 Tr., ECF No. 346 at PageID 11213:18-23, 11214:17-21.) MPD officers already vet these tips for credibility, and any additional vetting for the very few tips that may implicate First Amendment-related intelligence would not be so onerous as to unduly burden the MPD’s ability to protect Shelby County Schools. (See ECF No. 346 at PageID 11214:22-25, 11215:1-
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25.) The same reasoning applies to the CrimeStoppers program. (See, e.g., id. at PageID 11216:5-13.)
In summary, the City has not met its burden to demonstrate that changed factual circumstances warrant modification of § I, or that § I’s protections should be rewritten to meet the constitutional floor. The burden placed on the City by § I does not warrant such a departure from the current language of the Decree, and the Court’s Orders clarifying its limitations demonstrate that little to no information received from the MPD as part of their membership in information sharing programs implicates § I’s limitations.
3. The City’s Ability to Receive First Amendment-Related Intelligence from Other Law Enforcement Agencies and Third Parties (Paragraph 2 of the City’s Proposed Modification) The City’s third proposed change to § I confuses more than it clarifies. The term First Amendment-related intelligence is defined by the Parties’ Jointly Proposed Modification: “‘First Amendment-Related Intelligence’ is the gathering, indexing, filing, maintenance, storage, or dissemination of information or any other investigative activity which is undertaken due to or on the basis of a person’s beliefs, opinions, associations or the content of the speech or expression protected by the First Amendment.” (Trial Ex. 6, ECF No. 327-1 at PageID 9960 ¶ 5.) Under the City’s proposed § I, the City would be able to receive First Amendment-related intelligence so long as it vets the information pursuant to § G of the Decree and so long as it uses the information for a legitimate police purpose. (See Trial Ex. 25, ECF No. 336-4 at PageID 10356.)
Allowing the City to receive and use First Amendment-related Intelligence for legitimate police purposes provides no more added clarity than did the Court’s most recent order interpreting § I and, if accepted, would contravene the purposes of the Kendrick Consent Decree. Adding this language would allow the MPD to receive First Amendment-related intelligence,
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that is, information gathered “due to or on the basis of a person’s beliefs, opinions, associations or the content of the speech or expression protected by the First Amendment,” so long as it is used for a legitimate police purpose. But this directly conflicts with the Court’s October 26, 2018 Opinion and Order, in which the City was found to have violated the Decree:
The Consent Decree, however, is clear and unequivocal in its language. Understood in its entirety, the Consent Decree bans investigative activity into the exercise of First Amendment Rights by Memphis residents. Political Intelligence is impermissible as the means of investigation, as the ends of investigation, or as an intermediate step in a larger investigation (ECF No. 151 at PageID 6260.) Allowing the City to accept First Amendment-related intelligence (the equivalent of political intelligence), regardless of whether it was vetted by MPD officers pursuant to § G, would allow the City to use such intelligence as a “means of investigation” or as “an intermediate step in a larger investigation.” (Id.) Just like the City’s September 2019 request to vacate § I, this proposed modification would “eviscerate the core goals of the Kendrick Consent Decree.” (See ECF No. 250 at PageID 8428.)
That is not to say that § I prevents the City from receiving information that may implicate First Amendment-related activities or intelligence. For example, if a political activist group is being investigated by the FBI, and the FBI sends information about that group to the MPD, that information may result in the City’s collection of First Amendment-related intelligence. The City may receive that information, so long as it is reviewed and authorized pursuant to § G of the Decree, which requires the MPD to ensure (1) that the information is related to a criminal investigation and (2) that it was not gathered in violation of the Decree. (See § G Kendrick Consent Decree, ECF No. 151 at PageID 6283.)
Using the Court’s example, if the FBI did not gather that information “due to or on the basis of a person’s beliefs, opinions, associations or the content of the speech or expression
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protected by the First Amendment,” then the MPD could receive the information. If the information constitutes First Amendment-related intelligence, the City must reject it or otherwise violate the Decree. Under the City’s proposed modification to § I, the City would not be required to reject outright information that was gathered in the course of an investigation that was due to or based solely on the target’s “beliefs, opinions, associations or the content of the speech or expression protected by the First Amendment” so long as the MPD ultimately used the information for a legitimate police purpose. Allowing the use of First Amendment-related intelligence not initially gathered for a legitimate police purpose would permit a post-gathering removal of taint from the information. The City’s modification would eviscerate § I’s protections by allowing the City to use First Amendment-related intelligence from an outside law enforcement agency so long as that intelligence might eventually be connected to a legitimate police purpose. Such conduct would violate the Decree.
In summary, the Court finds that the City has not met its burden of demonstrating that § I should be modified. The City’s continued confusion over § I can be attributed to inadequate training of MPD officers rather than to the opacity of the language of the Decree.
C. Section H of the Kendrick Consent Decree
The City moves the Court to modify § H, a request the City raised for the first time in its Post-Trial Brief. (See ECF No. 348 at PageID 11399–400.) The City proposes the following changes to § H.2.:
The defendants and the City of Memphis shall not disseminate personal information for the purpose of First Amendment-Related Intelligence about any person collected in the course of a lawful investigation of criminal conduct to any other person, except that such information may be disseminated to another government law enforcement agency then engaged in a lawful investigation of criminal conduct for a legitimate law enforcement purpose.
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(See City’s Reply Brief, ECF No. 355 at PageID 11511–12 (emphasis in original).) The City relies on the testimony of Director Rallings to support its assertion (1) that changed circumstances require modification and (2) that § H as currently written threatens public safety. (Id. at PageID 11508–12.) The record does not support these assertions.
First, § H does not prevent the City of Memphis from sharing all information about criminal suspects with third parties. Section H prevents the City of Memphis and the MPD from “disseminat[ing] personal information about any person collected in the course of a lawful investigation of criminal conduct . . . .” (See Kendrick Consent Decree § H, ECF No. 151 at PageID 6284.) The Court has not yet construed the meaning of “personal information.” (See Order on Summary Judgment, ECF No. 120 at PageID 4887; see also ECF No. 151 at PageID 6268–69.) The Court begins with the ordinary meaning of “personal information.” See Planters Gin, 78 S.W.3d at 889–90. “Personal” means “of, relating to, or affecting a person as a private individual (rather than as a member of a group or the public, or in a public or professional capacity).” Personal, Oxford English Dictionary (2d ed. 1989); see also Personal, Miriam Webster Dictionary (11th ed. 2016) (“of, relating to, or affecting a particular person”). “Information” means “knowledge obtained from investigation, study, or instruction.” Information, Miriam Webster Dictionary (11th ed. 2016). Taken together and read in the context of information gathered as a result of a police investigation, personal information is any knowledge relating to, or affecting a person as a private individual obtained as the result of an investigation.
The City broadly reads personal information to include any information relating to the individual, including his or her name. (See City’s Post-Trial Br., ECF No. 348 at PageID 11400.) The Court does not interpret this provision so broadly. The ACLU-TN provides a more
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reasonable definition. (See ACLU-TN Post-Trial Br., ECF No. 349.) Section H must be read in the context of the purpose of the Kendrick Consent Decree, which specifically was written to protect citizens of Memphis’s First Amendment rights.10 See D & E Constr., 38 S.W.3d at 519; see also United States v. Am. Trucking Ass’n, 310 U.S. 534, 543–44 (1940) (noting that a court’s power to interpret the text of a statute is not limited to a “superficial examination” of the text but also includes looking to the purpose of the statute as a whole).
Personal information would not include the name of an individual or other descriptive or identifying characteristics such as the individual’s height or weight. But information related to citizens of Memphis’s exercise of their First Amendment rights would constitute personal information. For example, the City could not send information to a third party about an individual’s political affiliation, her religious beliefs, or information completely unrelated to the City’s need to share the information in furtherance of a legitimate law enforcement purpose. Personal information would also include personally identifiable information, such as a telephone
10 The Court recognizes that when interpreting the terms of a consent Decree, it should “focus only within the four corners of the consent decree.” Shy v. Navistar Int’l Corp., 701 F.3d 523, 530 (6th Cir. 2012). The General Principles of the Kendrick Consent Decree, which are codified in the Decree, guide the Court’s determination of the “purpose” of the Decree and its effect on interpretation of the Decree’s terms:
The provisions of this Decree prohibit the defendants and the City of Memphis from engaging in law enforcement activities which interfere with any person’s rights protected by the First Amendment to the United States Constitution including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose. Furthermore, even in connection with the investigation of criminal conduct, the defendants and the City of Memphis must appropriately limit all law enforcement activities so as not to infringe on any person’s First Amendment rights. ((Case No. 2:76-cv-00449, Kendrick Consent Decree, ECF No. 16.)
44

number, address, or other information beyond that which is necessary to respond to a potential criminal threat.11
While the definition of personal information still allows the name and description of an individual to be sent by the MPD to third parties, the City’s requested modification goes too far. The City has also already travelled down this road. The Court found that the City had violated § H of the Decree because it had shared individuals’ personal information with third parties for the purpose of political intelligence. (See ECF No. 120 at PageID 4887; ECF No. 151 at PageID 6269.) Additionally, the City has not provided sufficient evidence demonstrating that changed factual circumstances warrant modification of § H. The City points to Director Rallings’ testimony, in which he asserts that Memphis has key infrastructures that need to be protected. (See Tr., ECF No. 345 at PageID 11018–20; see also Reply Br., ECF No. 355 at PageID 1150– 51.) But that does not demonstrate how the need to protect Memphis infrastructure has changed since entry of the Decree; it only demonstrates that Memphis has key infrastructure that may be the targets of criminal activity. It is not clear that Memphis was not already a key point of interstate travel and transportation at the time the City consented to the Kendrick Consent Decree.
The City’s assertion that 9/11 is a changed factual circumstance warranting modification is also not persuasive. Other courts have found the reality of the threat of terrorism following
11 The Court finds that some federal privacy statutes help in crafting this definition. For example, in the context of the Family Education Rights and Privacy Act, which was designed to “protect the privacy interests of students and their parents,” schools and agencies cannot release “personally identifiable information,” which is defined, per Code of Federal Regulations, as “the student’s name, a family member’s name, the address of the student or family member, personal identifiers such as the student’s social security number or student number, and personal characteristics or other information that would make the student’s identity traceable.” United States v. Miami Univ., 294 F.3d 797, 806 & 806 n.9 (6th Cir. 2002). The Kendrick Consent Decree, however, does not use the term “identifiable,” making some of this information not necessarily applicable to the Decree’s definition of personal information.
45

9/11 to be a quintessential example of changed circumstances under Rufo. See Handschu v. Special Servs. Div., 273 F. Supp. 2d 327, 337 (S.D.N.Y. 2003)12 (“Within the context of the first Rufo prong, it remains to consider whether the changed circumstances crystallized by the events of 9/11 warrant revision of the Handschu Guidelines as they presently exist. I conclude without difficulty that the answer to that question must be in the affirmative.”). The Court agrees that 9/11 was a tragic event that changed American society, and American policing, forever. But it does not become a fallback justification to modify a Consent Decree to reduce the rights of Memphians, specifically their right not to have sensitive, personal information transmitted to unknown (and not politically accountable) third parties.13
Moreover, the City has not demonstrated why sharing personal information with private third parties is necessary to keep Memphians safe. Nothing prevents the City and the MPD from responding to criminal threats themselves. (See City’s Reply Br., ECF No. 355 at PageID 11509–10; see also City’s Post-Trial Br., ECF No. 348 at PageID 11399–400; ECF No. 345 at PageID 11020.) The MPD could easily respond to a threat to avoid a catastrophic situation, a task they are uniquely qualified to perform. The City’s request would appear to delegate a significant amount of authority to third party security forces, which is antithetical to the notion of public accountability in policing.
12 The Handschu litigation dealt with police investigations of political groups, but the modification proceedings came on the heels of 9/11 and were filed in New York City, the epicenter of the tragic events of 9/11. Such facts do not readily apply to Memphis, a city different in kind from New York City, especially given that New York City was only two years removed from the terrorist attacks on the World Trade Center. See id. at 333.
13 Scholars have cautioned against the chilling effects that information sharing and police surveillance justified by atrocities like 9/11 can have on individuals’ First Amendment rights. See, e.g., Matthew Wasserman, First Amendment Limitations on Police Surveillance: The Case of the Muslim Surveillance Program, 90 N.Y.U. L. REV. 1786, 1795–98 (2015) (discussing how the New York Police Department’s surveillance of Muslim Americans in the years following the 9/11 terrorist attacks had chilling effects on their First Amendment rights).
46

Finally, enforcement of § H’s ban on the sharing of personal information, as now construed by the Court, would not be detrimental to the public interest. (See Post-Trial Reply Br., ECF No. 11509–10.) The City may still share information relevant to a police investigation that does not disclose the types of information about an individual referenced above. The City could share the name or the descriptive characteristics of the suspect with third parties, but could not, for example, provide information about his or her home address, political affiliations, religion, or any information that is extraneous to the limited legitimate law enforcement purpose for which the individual’s information is being shared. As such, the City under § H as currently written can respond to criminal threats to key infrastructures in Memphis.
In summary, the Court finds that the City has not met its burden of demonstrating that § H requires modification under Rufo. The Section does not prevent the City from sharing information with third parties that is necessary to prevent a “catastrophic” event. It does prevent the sharing of information that is unrelated to the legitimate law enforcement purpose for which it shares any information that relates to an individual’s First Amendment rights, such as, for example, information about their political, religious, associational or free-speech related activities. Moreover, the City cannot demonstrate that changed circumstances warrant modification of § H, especially in light of the Court’s interpretation of § H’s restrictions on the sharing of personal information with third parties.
V. CONCLUSION
For the reasons set out above, the Court GRANTS the City’s Motion as to the Proposed Joint Modifications to the Kendrick Consent Decree. The Court DENIES the Motion as to the City’s request to modify §§ I and H of the Kendrick Consent Decree. An amended Judgment
47

and Decree shall be filed as an attachment to this Opinion and Order (see ECF No. 378-1) and shall also be filed separately as an Amended Judgment in both this case and in Kendrick v. Chandler, No. 2:76-cv-00449 (W.D. Tenn. Sept. 10, 1976).
SO ORDERED, this 21st day of September, 2020. /s/ Jon P. McCalla
JON P. McCALLA UNITED STATES DISTRICT COURT JUDGE
48

 
 Case 2:17-cv-02120-JPM-jay Document 379 Filed 09/21/20 Page 1 of 13 PageID 12580

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ACLU OF TENNESSEE, INC., Intervening Plaintiff,
v. THE CITY OF MEMPHIS,
Defendant.

)

)

)

)

Case No. 2:17-cv-02120-JPM-jay

)

Case No. 2:76-cv-00449

)

)

)

)

AMENDED JUDGMENT AND DECREE “MODIFIED KENDRICK DECREE”

Preface Pursuant to the Court’s Opinion and Order of September 21, 2020, the original Kendrick Consent Decree (see Case No. 2:76-cv-00449, ECF No. 37), by consent of the Parties as to all sections except as to §§ I and H, is hereby Amended and Restated in its entirety as follows:
Plaintiffs, Chan Kendrick, Mike Honey, and the American Civil Liberties Union in West Tennessee, Inc., commenced an action on or about September 14, 1976, against defendants, Wyeth Chandler, Mayor of the City of Memphis, W. O. Crumby, Chief of Police and Acting Director of Police of the City of Memphis, P. T. Ryan, Captain of the Intelligence Section of the Memphis Police Department, and George W. Hutchison, Chief of Operations of the Memphis Police Department, individually and in their official capacities. On September 14, 1978, with consent of the defendants, an Order, Judgment and Decree (“Consent Decree”) was entered in Case No. 2:76-cv-00449.

Case 2:17-cv-02120-JPM-jay Document 379 Filed 09/21/20 Page 2 of 13 PageID 12581
On March 3, 2017, the ACLU of Tennessee, Inc. (“ACLU-TN”) filed the instant intervening Complaint, which challenged the City’s compliance with the Consent Decree. On August 10, 2018, the Court entered summary judgment in favor of ACLU-TN on certain claims in the litigation (see ECF No. 120), while reserving ruling on the other issues identified in that Order. On October 26, 2018, the Court entered an Order as to all remaining issues. (ECF No. 151.) The Court also found the City in contempt of the Decree in several respects and issued sanctions. (Id.) The Court ordered the appointment of an independent monitor to oversee the City’s compliance with the Decree. (Id.; ECF No. 176.)
The parties engaged in mediation and agreed that modifications to the Consent Decree are reasonable given the changing technologies available to law enforcement, the advent of and pervasive use of social media in today’s world, and the continuing responsibility of law enforcement agencies to guard against infringement of the First Amendment rights of citizens, which was the basis for entry of the Consent Decree in the first place. Effective upon execution of this Order, with respect to any affirmative obligations imposed on Defendant City of Memphis and its Police Division, the Consent Decree shall be superseded and replaced for all purposes with this Modified and Amended Consent Decree as follows:
Amended Judgment and Decree “Modified Kendrick Decree”
A. Statement of General Principles The defendants herein deny that they have acted illegally in any manner but agree to the terms hereinafter set out in order to dispose of the controversy between the parties.
2

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The provisions of this Decree prohibit the defendants and the City of Memphis from engaging in law enforcement activities which interfere with any person’s rights protected by the First Amendment to the United States Constitution including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish and to associate privately and publicly for any lawful purpose.
Furthermore, even in connection with the investigation of criminal conduct, the defendants and the City of Memphis must appropriately limit all law enforcement activities so as not to infringe on any person’s First Amendment rights.
B. Definitions 1. "First Amendment rights" means rights protected by the First Amendment to the Constitution of the United States, including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose. 2. The "City of Memphis" means all present and future officials, employees and any other agents, and all departments, divisions and any other agencies, of the City of Memphis, Tennessee. 3. “Legitimate Law Enforcement Purpose” means an activity conducted for the purpose of furthering the prevention of crime and/or ensuring the safety of the public and law enforcement personnel, while adhering to law and agency policy designed to protect the privacy, free speech, association, and other civil rights and civil liberties of all people. 4. "Person" means any individual, group or organization.
3

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5. “First Amendment-related intelligence” is the gathering, indexing, filing, maintenance, storage, or dissemination of information or any other investigative activity which is undertaken due to or on the basis of a person’s beliefs, opinions, associations or the content of the speech or expression protected by the First Amendment.
6. "Defendants" means defendants Chandler, Crumby, Ryan and Hutchinson and their successors in office.
7. “Social Media” means forms of electronic communication such as websites for social networking and microblogging through which users create online communities to share information, ideas, personal messages, and other content such as photos and videos.
8. “Undercover Account” means an online alias to search or engage in interactions with a person via social media sites that may or may not be in the public domain.
C. First Amendment-Related Intelligence 1. The defendants and the City of Memphis shall not engage in First Amendmentrelated intelligence, except as otherwise provided for by Section G below. 2. The defendants and the City of Memphis shall not operate or maintain any office, division, bureau or any other unit for the purpose of engaging in First Amendmentrelated intelligence.
4

Case 2:17-cv-02120-JPM-jay Document 379 Filed 09/21/20 Page 5 of 13 PageID 12584
D. Prohibition Against Electronic Surveillance for First Amendment-Related Intelligence
1. The defendants and the City of Memphis shall not intercept, record, transcribe or otherwise interfere with any communication by means of electronic surveillance for the purpose of First Amendment-related intelligence.
2. The Memphis Police Department may view information posted to social media for legitimate law enforcement purposes, so long as it does not improperly catalog and disseminate that information pursuant to Section H. This viewing of information posted to social media includes conducting threat assessments. There are further situations where the Memphis Police Department may inadvertently discover information related to the exercise of First Amendment rights as defined by the Consent Decree because of the very nature of social media. The Memphis Police Department may not, however, surveil groups or persons involved in the exercise of their First Amendment rights for the purpose of First Amendmentrelated intelligence except as provided in subsection G of this Decree.
3. If the Memphis Police Department gathers First Amendment-related intelligence concerning an upcoming event on social media or otherwise, and if there is no Legitimate Law Enforcement Purpose to retain the intelligence, once the event has passed, the information gathered shall be destroyed or removed.
E. Prohibition Against Covert Surveillance for First Amendment-Related Intelligence
1. The defendants and the City of Memphis shall not recruit, solicit, place, maintain or employ an informant for the purpose of First Amendment-related intelligence; nor shall any officer, employee or agent of the City of Memphis, for the purpose of First
5

Case 2:17-cv-02120-JPM-jay Document 379 Filed 09/21/20 Page 6 of 13 PageID 12585
Amendment-related intelligence, infiltrate or pose as a member of any group or organization exercising First Amendment rights.
2. The Memphis Police Department may employ “undercover accounts” on social media when investigating criminal activity. The Memphis Police Department may not, however, create social media accounts for the purpose of First Amendment-related intelligence.
a. If First Amendment-protected information is gathered through the use of an undercover social media account, such information shall not be retained unless necessary to further a criminal investigation.
b. The Memphis Police Department will implement supervisory controls to ensure all undercover social media accounts are not being used or created to violate this Consent Decree or otherwise infiltrate or identify groups expressing their First Amendment rights.
F. Harassment and Intimidation Prohibited
1. The defendants and the City of Memphis shall not disrupt, discredit, interfere with or otherwise harass any person exercising First Amendment rights. Among other things, the City of Memphis shall not disseminate damaging, derogatory, false or anonymous information about any person for the purpose of First Amendment-related intelligence, or attempt to provoke disagreement, dissention or violence between persons.
2. The defendants and the City of Memphis shall not engage in any action for the purpose of, or reasonably having the effect of, deterring any person from exercising First Amendment rights. As an example, the City of Memphis shall not, at any lawful meeting or
6

Case 2:17-cv-02120-JPM-jay Document 379 Filed 09/21/20 Page 7 of 13 PageID 12586
demonstration, for the purpose of chilling the exercise of First Amendment rights or for the purpose of maintaining a record of persons exercising their First Amendment rights, record the name of or photograph any person in attendance, or record the automobile license plate numbers of any person in attendance.
3. The Memphis Police Department may have officers present at gatherings of persons engaged in First Amendment activity for the purpose of ensuring public safety, as long as the Memphis Police Department’s presence is not for the purpose of, nor may reasonably have the effect of, harassment or intimidation.
4. Nothing in this provision prohibits the City from implementing reasonable time, place, and manner restrictions on First Amendment activities.
G. Investigations Which May Interfere with the Exercise of First Amendment Rights
1. Investigations and intelligence-gathering which are reasonably unlikely to result in the collection of information about the exercise of First Amendment rights, or interfere in any way with the exercise of such First Amendment rights are permissible and require no special authorization under Section G. If, for example, an investigation or gathering of intelligence is based on an articulable suspicion of criminal activity, such as illegal drug dealing or the unlawful use of weapons, this directive does not require special authorization for that investigation/intelligence gathering unless and until the investigation is reasonably likely to result in the collection of information about the exercise of First Amendment rights, or interfere in any way with the exercise of such First Amendment rights.
7

Case 2:17-cv-02120-JPM-jay Document 379 Filed 09/21/20 Page 8 of 13 PageID 12587
2. The Consent Decree does not require Director authorization under § G to begin investigations on social media, only those that are reasonably likely to result in the collection of information about the exercise of First Amendment rights or interfere in any way with the exercise of such First Amendment rights. Where a social media investigation is based on the content of the speech or other expression, however, authorization is always required as outlined below.
3. Certain criminal investigations prompted by or based upon the content of a person’s speech or other expression, whether written or oral, are permitted provided that there is a legitimate law enforcement purpose for doing so. If an investigation is prompted by or based upon a person’s speech or other expression for a legitimate law enforcement purpose, the investigation is permissible but always requires authorization as outlined in this section.
4. Any police officer conducting or supervising a lawful investigation of criminal conduct, which investigation is reasonably likely to result in the collection of information about the exercise of First Amendment rights or interfere in any way with the exercise of such First Amendment rights, must immediately bring such investigation to the attention of the Memphis Director of Police or a designee of the Director of Police for review and authorization.
5. The Director of Police may appoint designees to authorize investigations under § G so long as they receive regular training on the Consent Decree and the Director of Police exercises periodic review and oversight of the designees.
6. When an authorization is required under this Section, the Director of Police or his/her designee shall review the factual basis for the investigation and the investigative
8

Case 2:17-cv-02120-JPM-jay Document 379 Filed 09/21/20 Page 9 of 13 PageID 12588
techniques to be employed. The Director of Police or his/her designee shall issue a written authorization for an investigation for a period not to exceed ninety (90) days only if the Director of Police makes written findings that:
a. The investigation does not violate the provisions of this Decree; and b. The expected collection of information about, or interference with, First
Amendment rights is unavoidably necessary for the proper conduct of the investigation; and c. Every reasonable precaution has been employed to minimize the collection of information about, or interference with, First Amendment rights; and d. The investigation employs the least intrusive technique necessary to obtain the information. 7. The Director of Police or his/her designee may authorize an extension of such investigation for an additional period specified by the Director of Police or his/her designee not to exceed ninety (90) days. The Director of Police or his/her designee shall authorize each such extension only if the Director of Police or his/her designee reevaluates the factual basis for the investigation and the investigative techniques to be employed, and makes current written findings as required in Paragraph 2, above.
8. There are certain types of crimes that occur exclusively on the Internet that are purely criminal. While these crimes may in some instances tangentially implicate the First Amendment, Director authorization under § G is not required to investigate those crimes. Examples of such cybercrimes are, including but not limited to, child pornography; identity theft; unauthorized intrusions into private networks; deployment of computer viruses; and cyberbullying. Such investigations will be subject to Director/Designee audit bi-annually. In
9

Case 2:17-cv-02120-JPM-jay Document 379 Filed 09/21/20 Page 10 of 13 PageID 12589
the event that an investigation directly implicates First Amendment activity or may result in the gathering of First Amendment-related intelligence, Section G would apply.
H. Maintenance and Dissemination of Information 1. The defendants and the City of Memphis shall not maintain personal information about any person for the purpose of First Amendment-related intelligence unless it is collected in the course of a lawful investigation of criminal conduct and is relevant to such investigation. Information which has been collected in violation of this Decree shall be destroyed. 2. The defendants and the City of Memphis shall not disseminate personal information for the purpose of First Amendment-related intelligence about any person collected in the course of a lawful investigation of criminal conduct to any other person, except that such information may be disseminated to another government law enforcement agency then engaged in a lawful investigation of criminal conduct. 3. The City of Memphis may record photos and videos with City-owned recording and photographic devices as long as the devices are not used for the purpose of First Amendment-related intelligence.
a. The City of Memphis may use the “pan/tilt/zoom” functions on its cameras and recording devices.
b. The City of Memphis may not, however, intentionally save and catalog video or images that would constitute First Amendment-related intelligence unless otherwise authorized by this Decree.
10

Case 2:17-cv-02120-JPM-jay Document 379 Filed 09/21/20 Page 11 of 13 PageID 12590
c. The City of Memphis may continue its current practice of storing video from its video recording devices on the devices’ internal storage as long as the footage automatically deletes as new footage is recorded.
d. The City will implement a written retention policy for all camera footage that is downloaded from the cameras.
4. The Memphis Police Department may use Body Worn Cameras as long as they are not used for the purpose of First Amendment-related intelligence. Additionally,
a. The use of Body Worn Cameras at First Amendment activity is subject to the Memphis Police Department’s standard policy and procedures for the use of Body Worn Cameras;
b. The Memphis Police Department may not retain body worn camera footage of such protests or assemblies unless it contains evidence of criminal activity or officer misconduct.
I. Restriction on Joint Operations
The defendants and the City of Memphis shall not encourage, cooperate with, delegate, employ or contract with, or act at the behest of, any local, state, federal or private agency, or any person, to plan or conduct any investigation, activity or conduct prohibited by this Decree.
J. Dissemination and Posting of this Decree
The defendants and the City of Memphis shall familiarize each of its law enforcement personnel with the contents of this Decree in the same manner in which those personnel are instructed about other rules of conduct governing such personnel. In addition, defendants and
11

Case 2:17-cv-02120-JPM-jay Document 379 Filed 09/21/20 Page 12 of 13 PageID 12591
the City of Memphis shall disseminate and make known the contents of this Decree through publication, public posting and other means.
K. Effective Date This Decree shall be effective when approved and entered by the Court as fair, reasonable and adequate. L. Binding Effect This Decree, providing prospective relief only, constitutes a full and final adjudication of all the named plaintiffs’ claims for injunctive and affirmative relief as stated in the Complaint. However, it shall have no binding effect upon any claims for damages that have been, might have been, or might in the future, be asserted by any other individual. any statutes of limitations that apply to any such claims are hereby tolled from September 14, 1976 to the date of this Decree. M. Retention of Jurisdiction The Court will retain jurisdiction of this action, including any issue which might arise regarding payment of attorneys’ fees to counsel for plaintiffs, pending disposition of all matters contained in this Decree and for the purpose of issuing any additional orders required to effectuate this decree.
12

Case 2:17-cv-02120-JPM-jay Document 379 Filed 09/21/20 Page 13 of 13 PageID 12592 SO ORDERED, with consent of the Parties as to all sections either originally (see
Case No. 2:76-cv-00449, ECF No. 37) or in this agreed upon Modified Decree, this 21st day of September, 2020.
/s/ Jon P. McCalla JON P. McCALLA UNITED STATES DISTRICT JUDGE
13

 
 Case 2:17-cv-02120-JPM-jay Document 327-2 Filed 06/08/20 Page 1 of 13 PageID 9969
EXHIBIT B

Case 2:17-cv-02120-JPM-jay Document 327-2 Filed 06/08/20 Page 2 of 13 PageID 9970

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION ______________________________________________________________________________

CHAN KENDRICK, ET AL,

Plaintiffs,

vs.

CIVIL ACTION

NO. c-76-449

H. CHANDLER, et al

______________________________________________________________________________

PROPOSED MODIFIED ORDER, JUDGMENT AND DECREE ______________________________________________________________________________
Plaintiffs, Chan Kendrick, Mike Honey, and the American Civil Liberties Union in West

Tennessee, Inc., having commenced this action on or about September 14, 1976, against

defendants, Wyeth Chandler, Mayor of the City of Memphis, W. O. Crumby, Chief of Police

and Acting Director of Police of the City of Memphis, P. T. Ryan, Captain of the Intelligence

Section of the Memphis Police Department, and George W. Hutchison, Chief of Operations of

the Memphis Police Department, individually and in their official capacities, and the court

having determined by Order dated . On September 2314, 1978, 1977 that the pleadings are

sufficient to state a cognizable claim for relief, and the parties having waived hearing, findings of

fact and conclusions of law, and defendants having consented to entry without further notice of

the within with consent of the defendants, an Order, Judgment and Decree was entered in the

above-captioned matter (hereinafter "Decree"):Consent Decree").

On March 3, 2017, the ACLU of Tennessee, Inc. (“ACLU-TN”) filed an intervening

Complaint which challenged the City’s compliance with the Consent Decree (Case No. 2:17-cv-

02120-JPM-DKV). On August 15, 2018, the Court entered summary judgment in favor of ACLU-

Case 2:17-cv-02120-JPM-jay Document 327-2 Filed 06/08/20 Page 3 of 13 PageID 9971
TN on certain claims in the litigation (see ECF No. 120), while reserving ruling on the other issues identified in that Order. On October 26, 2018, the Court entered an Order as to all remaining issue and found the City in contempt of the Decree in several respects and issued sanctions. (ECF No. 151.) The Court also ordered the appointment of an independent monitor to oversee the City’s compliance with the Decree. (Id.; ECF No. 176.)
NOW, THEREFORE, on application of Jack D. Novi, Esquare, American Civil Liberties Union Foundation; Bruce S. Kramer, Esquire, American Civil Liberties Union in West Tennessee, Inc. and Alex Hurder, attorneys for the plaintiffs, and upon consent of defendants, it is ORDERED, ADJUDGED AND DECREED as follows:
The parties engaged in mediation and agreed that modifications to the Consent Decree are reasonable given the changing technologies available to law enforcement, the advent of and pervasive use of social media in today's world, as well as the continuing responsibility of law enforcement agencies to guard against infringement of the First Amendment rights of citizens, which was the basis for entry of the Consent Decree in the first place. Effective upon execution of this Order, with respect to any affirmative obligations imposed on the defendant City of Memphis and its Police Division, the Consent Decree shall be superseded and replaced for all purposes with this modified and amended Consent Decree as follows:
A. A.Statement of General Principles The defendants herein deny that they have acted illegally in any manner but agree to the terms hereinafter set out in order to dispose of the controversy between the parties. The provisions of this Decree prohibit the defendants and the City of Memphis from engaging in law enforcement activities which interfere with any person's rights protected by the First

Case 2:17-cv-02120-JPM-jay Document 327-2 Filed 06/08/20 Page 4 of 13 PageID 9972
Amendment to the United States Constitution including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish and to associate privately and publicly for any lawful purpose.
Furthermore, even in connection with the investigation of criminal conduct, the defendants and the City of Memphis must appropriately limit all law enforcement activities so as not to infringe on any person's First Amendment rights.
bB. Definitions 1. 1."First Amendment rights" means right protected by the First Amendment to the constitution of the United States, including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose. 2. 2.The "City of Memphis" means all present and future official, employees and any other agents, and all departments, divisions and any other agencies, of the City of Memphis, Tennessee. 3. “Legitimate Law Enforcement Purpose” means an activity conducted for the purpose of furthering the prevention of crime and/or ensuring the safety of the public and law enforcement personnel, while adhering to law and agency policy designed to protect the privacy, free speech, association, and other civil rights and civil liberties of all people.3. 4. "Person" means any individual, group or organization. 5. 4."Political “First Amendment-Related Intelligence” means is the gathering, indexing, filing, maintenance, storage , or dissemination of information, or any other investigative activity, relating to any which is undertaken due to or on the basis of a person’s beliefs, opinions, association or other exercise of associations or the content of the speech or expression protected by the First Amendment rights.5.

Case 2:17-cv-02120-JPM-jay Document 327-2 Filed 06/08/20 Page 5 of 13 PageID 9973
6. "Defendants" means defendants Chandler, Crumby, Ryan and Hutchinson and their successors in office.
7. “Social Media” means forms of electronic communication such as websites for social networking and microblogging through which users create online communities to share information, ideas, personal messages, and other content such as photos and videos.
8. “Undercover Account” means an online alias to search or engage in interactions with a person via social media sites that may or may not be in the public domain.
C.Political C. First Amendment-Related Intelligence 1. 1.The defendants and the City of Memphis shall not engage in First AmendmentRelated intelligence, except as otherwise provided for by Section G below. 2. The defendants and the City of Memphis shall not operate or maintain any office, division, bureau or any other unit for the purpose of engaging in political First Amendment-Related intelligence. D. Prohibition Against Electronic Surveillance for Political First Amendment-
Related Intelligence. 1. The defendants and the City of Memphis shall not intercept, record, transcribe or otherwise interfere with any communication by means of electronic surveillance for the purpose of political First Amendment-Related intelligence.
The defendants and the City of Memphis shall not intercept, record, transcribe or otherwise interfere with any communication by means of electronic surveillance for the purpose of political intelligence.
2. The Memphis Police Department may view information posted to social media for legitimate law enforcement purposes, so long as it does not improperly catalog and disseminate that information pursuant to Section H. This viewing of information posted to social media includes

Case 2:17-cv-02120-JPM-jay Document 327-2 Filed 06/08/20 Page 6 of 13 PageID 9974
conducting threat assessments. There are further situations where the Memphis Police Department may inadvertently discover information related to the exercise of First Amendment rights as defined by the Consent Decree because of the very nature of social media. The Memphis Police Department may not, however, surveil groups or persons involved in the exercise of their First Amendment rights for the purpose of First Amendment-Related intelligence except as provided in subsection G of this Decree.
3. If the Memphis Police Department gathers First Amendment-Related intelligence concerning an upcoming event on social media or otherwise, and if there is no Legitimate Law Enforcement Purpose to retain the intelligence, once the event has passed, the information gathered shall be destroyed or removed.
E. Prohibition Against covert Covert Surveillance for Political IntelligencePolitical First Amendment-Related Intelligence.
1. The defendants and the City of Memphis shall not recruit, solicit, place, maintain or employ an informant for political the purpose of First Amendment-Related intelligence; nor shall any officer, employee or agent of the City of Memphis, for the purpose of political First Amendment-Related intelligence, infiltrate or pose as a member of any group or organization exercising First Amendment rights.
2. The Memphis Police Department may employ “undercover accounts” on social media when investigating criminal activity. The Memphis Police Department may not, however, create social media accounts for the purpose of First Amendment-Related intelligence.
a. If First Amendment-protected information is gathered through the use of an undercover social media account, such information shall not be retained unless necessary to further a criminal investigation.

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b. The Memphis Police Department will implement supervisory controls to ensure all undercover social media accounts are not being used or created to violate this Consent Decree or otherwise infiltrate or identify groups expressing their First Amendment rights.
F. Harassment and Intimidation Prohibited.. 1. 1.The defendants and the City of Memphis shall not disrupt, discredit, interfere with or otherwise harass any person exercising First Amdnemtn Amendment rights. Among other things, the City of Memphis shall not disseminate damaging, derogatory, false or anonymous information about any person for the purpose of political First Amendment-Related intelligence, or attempt to provoke disagreement, dissention or violence between persons.. 2. 2.The defendants and the City of Memphis shall not engage in any action for the purpose of, or reasonably having the effect of, deterring any person from exercising First Amendment rights. As an example, the City of Memphis shall not, at any lawful meeting or demonstration, for the purpose of chilling the exercise of First Amendment rights or for the purpose of maintaining a record of persons exercising their First Amendment rights, record the name of or photograph any person in attendance, or record the automobile license plate numbers of any person in attendance. 3. The Memphis Police Department may have officers present at gatherings of persons engaged in First Amendment activity for the purpose of ensuring public safety, as long as the Memphis Police Department’s presence is not for the purpose of, or may reasonably have the effect of, harassment or intimidation. 4. Nothing in this provision prohibits the City from implementing reasonable time, place, and manner restrictions on First Amendment activities.

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G.Criminal G. Investigations Which May Interfere with the Exercise of First Amendment Rights
1. Investigations and intelligence-gathering which are reasonably unlikely to result in the collection of information about the exercise of First Amendment rights, or interfere in any way with the exercise of such First Amendment rights are permissible and require no special authorization under Section G. If, for example, an investigation or gathering of intelligence is based on an articulable suspicion of criminal activity, such as illegal drug dealing or the unlawful use of weapons, this directive does not require special authorization for that investigation/intelligence gathering unless and until the investigation is reasonably likely to result in the collection of information about the exercise of First Amendment rights, or interfere in any way with the exercise of such First Amendment rights.
2. The Consent Decree does not require Director authorization under § G to begin investigations on social media, only those that are reasonably likely to result in the collection of information about the exercise of First Amendment rights or interfere in any way with the exercise of such First Amendment rights. Where a social media investigation is based on the content of the speech or other expression, however, authorization is always required as outlined below.
3. Certain criminal investigations prompted by or based upon the content of a person's speech or other expression, whether written or oral, are permitted provided that there is a legitimate law enforcement purpose for doing so. If an investigation is prompted by or based upon a person's speech or other expression for a legitimate law enforcement purpose, the investigation is permissible but always requires authorization as outlined in this section.
4. 1.Any police officer conducting or supervising a lawful investigation of criminal conduct , which investigation may result in the collection of information about the exercise of First Amendment rights, is reasonably likely to result in the collection of information about the exercise

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of First Amendment rights or interfere in any way with the exercise of such First Amendment rights, must immediately bring such investigation to the attention of the Memphis Director of Police or a designee of the Director of Police for review and authorization.
5. The Director of Police may appoint designees to authorize investigations under § G so long as they receive regular training on the Consent Decree and the Director of Police exercises periodic review and oversight of the designees.
6. 2.The When an authorization is required under this Section, the Director of Police or his/her designee shall review the factual basis for the investigation and the investigative techniques to be employed. the The Director of Police or his/her designee shall issue a written authorization for an investigation for a period not to exceed ninety (90) days only if the Director of Police makes written findings that:
a. a.The investigation does not violate the provisions of this Decree; and b. b.the expected collection of information about, or interference with, First
Amendment rights is unavoidably necessary for the proper conduct of the investigation; and c. c.Every reasonable precaution has been employed to minimize the collection of information about, or interference with, First Amendment rights; and d. d.The investigation employs the least intrusive technique necessary to obtain the information. 7. 3.The Director of Police or his/her designee may authorize an extension of such investigation for an additional period specified by the Director of Police or his/her designee not to exceed ninety (90) days. The Director of Police or his/her designee shall authorize each such extension only if the Director of Police re0evaluates or his/her designee reevaluates the factual

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basis for the investigation and the investigative techniques to be employed, and makes current written findings as required in Paragraph 2, above.
8. There are certain types of crimes that occur exclusively on the Internet that are purely criminal. While these crimes may in some instances tangentially implicate the First Amendment, Director authorization under § G is not required to investigate those crimes. Examples of such cybercrimes are, including but not limited to, child pornography; identity theft; unauthorized intrusions into private networks; deployment of computer viruses; and cyberbullying. Such investigations will be subject to Director/Designee audit bi-annually. In the event that an investigation directly implicates First Amendment activity or may result in the gathering of First Amendment-Related Intelligence, Section G would apply.
H. Maintenance and Dissemination of Information 1. 1.The defendants and the City of Memphis shall not maintain personal information about any person for the purpose of First Amendment-Related intelligence unless it is collected in the course of a lawful investigation of criminal conduct and is relevant to such investigation. Information which has been collected in violation of this Decree shall be destroyed. 2. 2.The defendants and the City of Memphis shall not disseminate personal information for the purpose of First Amendment-Related Intelligence about any person collected in the course of a lawful investigation of criminal conduct to any other person, except that such information may be disseminated to another government law enforcement agency then engaged in a lawful investigation of criminal conduct.

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3. The City of Memphis may record photos and videos with City-owned recording and photographic devices as long as the devices are not used for the purpose of First Amendment-Related Intelligence.
a. The City of Memphis may use the “pan/tilt/zoom” functions on its cameras and recording devices.
b. The City of Memphis may not, however, intentionally save and catalog video or images that would constitute First Amendment-Related Intelligence unless otherwise authorized by this Decree.
c. The City of Memphis may continue its current practice of storing video from its video recording devices on the devices’ internal storage as long as the footage automatically deletes as new footage is recorded.
d. The City will implement a written retention policy for all camera footage that is downloaded from the cameras.
4. The Memphis Police Department may use Body Worn Cameras as long as they are not used for the purpose of First Amendment-Related Intelligence. Additionally,
a. The use of Body Worn Cameras at First Amendment activity is subject to the Memphis Police Department’s standard policy and procedures for the use of Body Worn Cameras;
b. The Memphis Police Department may not retain body worn camera footage of such protests or assemblies unless it contains evidence of criminal activity or officer misconduct.

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I. Restriction on Joint Operations The defendants and the City of Memphis shall not encourage, cooperate4 with,
delegate, employ or contract with, or act at the behest of, any local, state, federal or private agency, or any person, to plan or conduct any investigation, activity or conduct prohibited by this Decree. The parties were unable to reach an agreement on modified language for Section I. Accordingly, the issue of any modifications to Section I remains for the Court’s determination.
J. Dissemination and Posting of this Decree The defendants and the City of Memphis shall familiarize each of its law
enforcement personnel with the contents of this Decree in the same manner in which those personnel are instructed about other rules of conduct governing such personnel. In addition, defendants and the City of Memphis shall disseminate and make known the contents of this Decree through publication, public posting and other means.
K. Effective Date This Decree shall be effective when approved and entered by the Court as fair,
reasonable and adequate. L. Binding Effect This Decree, providing prospective relief only, constitutes a full and final
adjudication of all the named plaintiffs' claims for injunctive and affirmative relief as stated in the Complaint. However, it shall have no binding effect upon any claims for damages that have bene, might have been, or might in the future, be asserted by any other individual. any statutes of limitations that apply to any such claims are hereby tolled from September 14, 1976 to the date of this Decree.

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M. Retention of Jurisdiction The Court will retain jurisdiction of this action, including any issue which might
arise regarding payment of attorneys' fees to counsel for plaintiffs, pending disposition of all matters contained in this Decree and for the purpose of issuing any additional order required to effectuate this decree.
SO ORDERED.