Memphis Police Director Michael Rawlings and Memphis City Attorney Bruce McMullen testify about the Memphis “blacklist” in August 2018. Jim Weber/The Commercial Appeal

By Peter White

MEMPHIS, TN — A three-day trial last week in a Memphis federal court challenged police tactics to keep tabs on Black Lives Matter activists by monitoring their social media and using undercover agents to spy on them. 

U.S. District Judge Jon McCalla listened to testimony from Memphis Police Director Michael Rallings, Sgt. Timothy Reynolds, and Major Stephen Chandler. Reynolds and Chandler run Memphis PD’s intelligence operations. Hedy Weinberg, executive director of the ACLU of Tennessee also testified.

The ACLU is an intervening plaintiff in the case originally brought by activists Elaine Blanchard, Keedran Franklin, Paul Garner and Bradley Watkins. McCalla ruled they couldn’t sue because they had no part in a 1978 consent decree between the city and the ACLU. 

The plaintiffs say the Memphis PD has violated that agreement which prohibits the police from infiltrating citizen groups to gather intelligence about their activities. Before the trial began, Judge McCalla issued a 35-page order agreeing with them. But he also ruled that police can use social media to look for specific threats.

“The consent decree does not prohibit the city from monitoring social media altogether, it simply prohibits the city from casting too wide a net,” McCalla wrote.

The facts are pretty clear: the police did track Black Lives Matter members as well as other activists in Memphis. They photographed citizens engaged in lawful activities to identify them and put them on what activists call a blacklist. After the lawsuit was filed the city removed more than half the names from what the city calls a security list. 

Two different names for the same thing show how starkly opposed the two sides are in the case and how differently they view the issues. The police view the plaintiffs as threats to public safety. 

Given the spate of police killings of black men in recent years, the plaintiffs say it is the police who are violent, not them. They say the police are violating their 1st Amendment rights and that creating dossiers and files on them is both unwarranted and unconstitutional. 

Memphis PD officers Reynolds and Chandler produced Joint Intelligence Briefings (JIB) on stationery with the heading “Memphis Police Department Office of Homeland Security”. 

The ACLU claims that is a special unit dedicated to spying on peaceful citizens which was prohibited in the 1978 consent decree. They argue it has been reborn under a different name.

The Memphis PD made Powerpoint documents using photographs of people to map their associations with others just like anti-gang task forces do. Reynolds testified he set up a fictitious social media account under the name “Bob Smith”. He posed as a black man on line “friending” hundreds of people in order to gather information on protests and activists.

One of the people he friended was Tami Sawyer, an activist who led a successful campaign to have Confederate statues removed from Memphis parks and later won election to the Shelby County Commission.

Sawyer said when she was organizing rallies against Confederate heroes she noticed the police always seemed to show up before her supporters did. She said police spying is an abuse of power.

“It causes fear for speaking out. And whether you want to speak out on A or B, whatever your belief is, we have the right to raise our voices without intimidation. Without being spied on, without any fear from our government,” Sawyer said.

Hunter Demster with the Coalition of Concerned Citizens told the Commercial Appeal that the police tried to infiltrate the group at least three times. The big question is: what will happen now?

The city argues that peaceful protests can quickly spiral out of control, especially if police don’t know about them in advance and they say activists have been launching unlawful, unpermitted protests. The city argues that times have changed in the last 40 years and new technologies are available now to prevent violence, crime, and preempt protests that block traffic and disrupt commerce. 

Hundreds of pages of evidence, including police emails about their surveillance, and videos of protests were entered into the record. There is no jury. The judge will rule on whether or not the ACLU has standing to enter the legal wrangling, file briefs, and argue the case in court. That could be later this year or early 2019.

Meanwhile the case is drawing national attention, according to the Memphis Commercial Appeal.

The case raises some knotty questions: what kind of policing does Memphis want? It is a city with a high murder rate, 7th of the top 20 American cities with the most killings adjusted for population. Nashville is 18th. St Louis is 1st on that list. 

Is surveillance of lawful citizens warranted because they might commit a crime? What kind of crimes are protestors committing?  Can preemptive policing be justified when the crime is not murder, a capital offense, but a misdemeanor for blocking a highway or other civil disobedience? 

The case has Orwellian overtones but its genesis can be traced to the Vietnam protests 50 years ago. Following the demonstrations against the war at the Democratic National Convention in Chicago in 1968 when the police rioted against anti-war protestors, there was a brief moment in 1975 when Sen. Frank Church (D-Idaho) exposed abuses by the CIA, FBI, and IRS in collecting intelligence both at home and abroad.

Church’s committee investigated FBI’s secret COINTELPRO operations (Counter Intelligence Program). It was designed to spy, infiltrate, discredit, and disrupt domestic political organizations like the Black Panther Party (BPP), the Southern Christian Leadership Council (SCLC), and other so-called subversive groups.

According to the Church report, under J. Edgar Hoover the FBI operated in secret with impunity. They organized the murder of several BPP leaders, planted false news stories about Martin Luther King, used perjury, witness harassment, witness intimidation, and withholding of evidence to convict “enemies of the state”. 

Such behavior exposed by the Church committee brought a brief period of national catharsis and sunlight to criminal acts committed by the government against its own citizens. Hoover began COINTELPRO in 1956. He officially terminated it in April 1971. And in 1978 the City of Memphis promised to stop using such tactics. But domestic espionage continued in other places, according to several researchers and news reports. As recently as April 2018, the Atlanta Black Star reported the FBI was spying on Black Lives Matter activists in Georgia.

In 2014, the FBI tracked a Black Lives Matter activist using tactics which The Intercept noted were “reminiscent of a rich American history of targeting black Americans.” The technology has changed but COINTELPRO still exists. 

In Memphis it continues under the name “Memphis Police Department Office of Homeland Security.” 

Watch the video below to learn more about this story:’blacklist’/98602104/