Doing so was and is a violation of residents’ rights to freedom of speech. So said a federal judge in 1978 and so said a judge last year.
“The City violated the clear terms of its agreement by gathering information related to the First Amendment rights of Memphis residents,” U.S. District Court Judge Jon McCalla wrote in an October 2018 order.
But in Mayor Jim Strickland’s Friday email to residents, he makes no mention of the Memphis Police Department’s repeated offenses.
Instead, he presents a false choice: Memphis Police Department can follow the consent decree or keep residents safe, but it can’t do both. In October, the city filed a motion signaling it wants to be released from the decree. Now Strickland is trying to build community support to do so.
Misinformation is generally defined as information that’s incorrect, but not intended to cause harm. Disinformation, however, is false information intended to cause harm. And in this case, the harm is to the civil liberties of all residents, especially the activists and organizers with whom Strickland has cultivated a contentious relationship.
Here’s how Strickland begins his email:
Let your voice be heard: This is something most of you are probably unaware of, but the City of Memphis has been under a court-ordered Consent Decree since 1978.
This is disinformation by omission. The mayor conveniently leaves out why the decree was necessary. Here’s the backstory: In 1976, a Vietnam vet discovered MPD was keeping a file on him, but rather than show him, MPD burned it and cabinets full of other files it kept on the NAACP, University of Memphis student groups and the Memphis Chamber of Commerce.
In 2016, Strickland created a “blacklist” of activists, protesters, the mother of a young man killed by police and others who were required to have a police escort at City Hall, most of whom had no criminal record.
In 2017, the ACLU sued the City of Memphis, alleging that the blacklist was in violation of that 40-year-old degree.
In October 2018, Judge McCalla ruled that yes, the city was still violating the decree in six ways, including:
- Conducting ‘political intelligence’ as specifically defined and forbidden by the Consent Decree
- Operating the Office of Homeland Security for the purpose of political intelligence
- Intercepting electronic communications and infiltrating groups through the “Bob Smith” Facebook account (created and maintained by a Memphis police officer.)
Questions that need answers (QTNA): Why would the mayor leave out the reason for the decree? Who benefits if the police department’s history of violations are obscured? Who suffers?
Under this decree, MPD’s ability to use modern technology to fight crime can be severely restricted. The Consent Decree was signed long before the Internet, social media, and other modern technology became a routine part of our daily lives.
Here, Strickland couches his language — “can be severely restricted” isn’t the same as “will be severely restricted” — but clearly the mayor wants readers to see a possibility, for which he offers no specifics, as a definite.
Also, McCalla acknowledged the existence of the Internet in his 2018 order, and rejected it as an excuse to play fast and loose with constitutionally protected rights. Instead, McCalla saw it as an opportunity for the city to set a good example.
“By successful implementation of the Consent Decree,” he wrote, “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,” McCalla wrote.
In addition to limiting MPD’s use of technology in fighting crime, it also may restrict MPD’s ability to coordinate with other agencies in providing public safety, like the Multiagency Gang Unit. To put it in more every day terms — it may restrict the use of Sky Cops, traffic cameras, interstate cameras and publicly available social media post (sic) which may provide a warning of a public safety threat.
Again, “may” is a wiggly word. And “restrict” is doing a lot of work here too. The consent decree might make it harder to expand the surveillance state, but it may not. Monitoring residents on social media might alert police to public safety concerns, but then again, it might not.
Strickland offers no specifics of how the decree would make police’s job harder or the streets less safe. And it’s as if both he and the police department are disinterested in accepting McCalla’s challenge or exploring ways to use technology to address crime AND comply with the consent decree.
QTNA: What options has MPD explored to balance fighting crime with citizens’ First Amendment rights? How do other cities manage to use the technology mentioned without violating constitutionally protected rights? Will you provide specific examples of how the decree would keep you from using social media posts?
Plus, the city’s alliance with the Multiagency Gang Unit is the sort of partnership that other cities are abandoning.
Writes Simone Weichselbaum for The Marshall Project:
“Washington provides money, expertise and weaponry. Local law enforcement agencies provide much of the manpower. Their officers are deputized as federal agents, which among other things means that the Justice Department can shield them from litigation and local oversight.
“At least five cities, including Atlanta, have pulled out of task forces since 2017, and Houston, the nation’s fourth largest, has threatened to follow.
“The problem, police officials say, is that local cops assigned to joint task forces are not bound by department rules, such as wearing body cameras, which the feds have prohibited. The FBI and U.S. Marshals allow the use of deadly force if a person poses an ‘imminent danger,’ using a definition that is less strict than many police departments’. California recently adopted a law stating that deadly force may be used only when ‘necessary.’ Task-force members are also immune to civilian lawsuits in a way that regular officers are not.”
Memphis has seen what happens when the feds arrive. In June, U.S. Marshals executing a felony warrant shot and killed Brandon Webber in the driveway of his mother’s Frayser home.
As The Commercial Appeal’s Phillip Jackson reported in June, prosecutors “have struggled to get answers after shootings involving the U.S. Marshals.”
According to a Fulton County, Georgia, district attorney, “Webber’s killing in Memphis was the 67th person fatally shot by members of a U.S. Marshals task force since 2015.”
“None of those shootings were captured by body-worn camera… Body cameras are not required by U.S. Marshal officers.”
Back to Strickland’s email:
Next week, on Nov. 7, there will be a community meeting related to the 1978 Consent Decree. The meeting will be held at Mississippi Boulevard Christian Church, from 6 to 7:30 p.m.
The purpose for this meeting is for you to give your thoughts about the decree and its impact on our community. If you are concerned about your neighborhood receiving a Sky Cop or your child’s school having traffic camera and license plate readers, please don’t miss this meeting.
But is this meeting really designed to get residents’ thoughts about the decree? The same decree whose purpose Strickland never mentions? The same decree that does not prohibit the use of Sky Cops or traffic cameras or license plate readers?
Disinformation campaigns rely on an uninformed public that is less skeptical than it should be, that isn’t on alert for obfuscation, that doesn’t question binary choices presented as if they are the only options.
Note: While Thomas was covering the 2018 federal trial, one of the exhibits displayed revealed that the Memphis Police Department was monitoring her and three other women journalists. After 433 days, the city fulfilled her public records request. Find those documents here.
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