During the civil rights movement, the Memphis Police Department (MPD) surveilled demonstrators in an effort to intimidate them from exercising free speech and free assembly. Through a 1976 lawsuit filed against the city of Memphis, the ACLU-TN obtained the nation’s first court order forbidding the maintenance of domestic intelligence units that monitor First Amendment activities. The order prohibits 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.”
In early 2017, due to media reports of an open records request, the city of Memphis released a list of people who must be escorted by police when visiting City Hall. The list featured the names of many individuals who had participated in protests, rallies, or other free speech activities. Many of those listed had no criminal record or history of causing disturbances at City Hall.
On February 22, 2017, four of the individuals listed on the escort list filed suit in federal court, alleging that Memphis was in violation of the Decree. ACLU-TN intervened in the lawsuit as a plaintiff, seeking to protect the integrity of the Decree.
Shortly after filing the lawsuit, the Court dismissed the four individual plaintiffs for lack of standing, leaving ACLU-TN as the sole plaintiff in the case. Over the next year, ACLU-TN and the city of Memphis engaged in discovery. The city produced more than 20,000 pages of documents and ACLU-TN conducted eight depositions of police officers and city employees. The documents and testimony revealed several violations of the Decree.
On June 18, 2018, ACLU-TN filed a Motion for Summary Judgment, asking the Court to rule that the facts undisputedly showed that the city was in contempt of several provisions of the Decree. The Court agreed on several of the counts and found the city in contempt. The Court reserved judgment on the remaining issues.
On August 20, 2018, ACLU-TN conducted a four-day trial. After concluding the trial, the Court asked the parties to file briefs arguing their position based on the evidence. On October 26, 2018, the Court issued its ruling on the case. The Court found the city in contempt on several more counts. The Court ordered that the city submit new policies and training programs for complying with the Decree. In addition, the Court appointed a monitor to oversee the city’s compliance with the Decree and the Court’s contempt order. The city submitted its draft policies and training programs to the Court and ACLU-TN has filed its objections. On April 23, August 27, 2019, and November 21, 2019, the Court held status conferences to receive progress reports from the Monitor. Community forums about the Monitor’s work were held on July 7, 2019, November 7, 2019 and March 10, 2020.
The week before the August 2018 trial, the city filed a motion to modify the Decree, claiming that the 1978 decree was outdated and that technological changes in policing had made certain provisions of the Decree too burdensome or obsolete. The Court deferred consideration of the city’s motion until after the trial.
After ruling in our favor on the contempt charges, the Court set a schedule for litigating the city’s motion to modify the Decree. After consideration, the city elected to delay their motion to modify the Decree to allow the Monitor some time to assess the city’s practices and training.
On September 25, 2019, the city filed a Motion for Immediate Modification of one specific provision of the Consent Decree. The Court denied the Motion on November 13, 2019.
In late April 2020, the parties participated in mediation with the court appointed monitor. Several of the issues were resolved through this process and the parties submitted proposed updates to the Decree to the Court. The remaining areas of disagreement were the subject of a four-day evidentiary hearing which began on June 17, 2020 via Zoom video conferencing.
On September 21, 2020, the Court issued its decision. The Court accepted all of the jointly proposed modifications to the Decree, but rejected the modifications proposed by the city that we opposed. The Court appointed Monitor will now be charged with implementing policies, procedures and an auditing system for the city to ensure future compliance with the now revised Decree.
The original Blanchard plaintiffs filed a notice of appeal to the Sixth Circuit Court of Appeals, challenging the Court’s ruling that they lack standing to enforce the Decree. The city also filed a Notice of Appeal, raising issues regarding ACLU-TN’s standing to enforce the decree and challenging the Court’s rejection of certain modifications proposed by the city. Briefing has concluded in the Sixth Circuit and we are waiting for either a decision on the briefs or a date for oral arguments.
ACLU-TN: Thomas H. Castelli, Stella Yarbrough
Spencer Fane: Mandy Strickland Floyd
ACLU of Tennessee, Inc.; Elaine Blanchard; Keedran Franklin; Paul Garner and Bradley Watkins
City of Memphis
- Timeline of Memphis' history of government surveillance in relation to the 1976 Kendrick v. Chandler lawsuit (March 2, 2017)
In the News
- "Opinion: The Memphis Police Spied on Activists," The New York Times (August 22, 2018)
- "The long, sordid history of law enforcement spying on Black Lives Matter," The Daily Dot (August 16, 2018)
- "Editorial: City must stop spying (again) on citizen protesters," The Commercial Appeal (August 13, 2018)
- "Courts to Memphis: No, Spying on Protesters Is Not Good Police Work," City Lab (August 13, 2018)
- "How Memphis Police Created an Undercover Operation to Spy on Black Lives Matter Activists," The Root (August 11, 2018)
- "ACLU wins favorable ruling from judge in advance of Memphis police spying trial," The Commercial Appeal (August 10, 2018)
- "Memphis: Spying on Activists Is Just Good Police Work," City Lab (August 9, 2018)
- "Do I Know You? US Police Created Facebook Profiles to Spy on Black Activists," Sputnik News, Russia (August 6, 2018)
- "Editorial: Police Surveillance Requires Oversight," The Daily News, Memphis (August 4, 2018)
- "Meet ‘Bob Smith,’ the Fake Facebook Profile Memphis Police Allegedly Used to Spy on Black Activists," The Appeal (August 2, 2018)
- "Memphis police accused of making fake social media accounts to spy on Black Lives Matter," The Hill (August 2, 2018)
- “Memphis police accused of using fake accounts to surveil black activists,” The Guardian (August 1, 2018)
- “Police Documents Show Protest Spreadsheet and Fear of 'Radicals,'” The Daily News, Memphis (July 31, 2018)
- "Memphis Police Collected Black Lives Matter Activists’ Private Facebook Posts," The Appeal (July 27, 2018)
- "Memphis Police Spying on Activists Is Worse Than We Thought," City Lab (July 27, 2018)
- "ACLU Accuses Memphis Police of Monitoring the Private Communications of Black Lives Matter Activists," Reason (July 27, 2018)
- "The Evolution of Domestic Spying Since MLK in Memphis," City Lab (April 9, 2018)