Ed Note: The description of the “blacklist” has been updated to more accurately reflect the changes made to it.
The Memphis Police Department has a long and troubling history of spying on activists.
That history is troubling enough that a Federal Court issued a Consent Decree in 1978. The decree is known as the “Kendrick Order”. It orders the department to end its practice of unwarranted spying and political pressure against activists and other groups.
In March of 2017, the ACLU of Tennessee intervened in a lawsuit against the city. That lawsuit charges the city with violating the Kendrick Order.
Now, some 40 years later, the city claims the order is “out of step” with modern policing efforts.
This whole issue raises many questions about people’s expectations of privacy, data collection in the digital age, and the balance between civil liberties and maintaining “order”.
The word “right-sizing” is tossed around like candy in Memphis. So how much “spying” on peaceful activists is “right” for Memphis?
The lawsuit was brought in March of 2017 by a group of activists, including: Elaine Blanchard, a local writer and activist, social activist Keedran Franklin, and Paul Garner and Bradley Watkins of the Mid-South Peace and Justice Center.
The lawsuit is in response to a security list known as “the blacklist” published by the city.
The blacklist is a list of people who must be escorted when entering City Hall. Prior to the Strickland Administration, this list was made up primarily of former or disgruntled employees. As the linked report notes, the updated list included former or disgruntled employees, people with orders of protection, and activists. The city released an amended list after an internal review by Police Director Mike Rallings that removed the activists.
The mere presence of a list that primarily included activists set the lawsuit into motion.
Since 1978, a court order prohibits the city from collecting political intelligence. This stems from the administration of Wyeth Chandeller…though the practice at that time, predated his administration.
Chandler’s administration admitted no wrongdoing, but agreed to the order.
The order states:
The defendants and the City of Memphis 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. – (Source, Section E of the order)
The lawsuit also revealed the City’s practice of infiltrating and collecting information from activists on social media. That information can be found in documents recently unsealed by the city.
Now it seems the Strickland administration finds itself in a similar situation as Chandler. The “blacklist” and the digital spying predates the current administration. However, the administration is still defending the practice, claiming the order is out of step and out of date.
The Unsealed Documents
Last week I read through the documents related to the ACLU lawsuit unsealed by the city.
The documents reveal a lot about the police department’s posture towards activists. I wrote about my initial impressions here.
As noted in the tweets, the key takeaway from the documents is the posture of the department toward peaceful protest:
Protesters need to be watched.
Speech and public assembly is a privilege not a right.
The protests, and the protesters are threats, not citizens exercising their First Amendment rights.
And that goes to the heart of the Kendrick order. It violates the order for the MPD to spy on people, but the department has been doing it anyway.
The depositions, screenshots, and internal emails published in the unsealed documents, show a department actively spying on people exercising their rights.
Some of this may be to ensure the proper police presence for an event. While that might been seen as a legitimate public safety interest, it rides the line of the Kendrick Order.
But much of it goes to the political views of the activists themselves, and that’s where it clearly crosses the line.
Surely the City knows this, which is why their legal argument is that the order is out of date.
Taken all together, the picture the documents paint is one of a suspicious department fearful of anything that might upset the status quo.
And it raises a really important question: How can a department square their spying activities with their mission to provide “compassion and responsiveness to the needs, rights and expectations of all its citizens”?
I don’t think it can. This is something I’ve written about before.
The Problematic Culture of the MPD
At the beginning of the Strickland Administration, former Police Director Toney Armstrong announced his retirement.
Around that same time, I wrote this post, arguing that Strickland should seek a new director from outside the department to bring real change.
In that post, I argued that the department had its own momentum…separate and discreet from the City’s momentum…though acting upon the city.
The department’s momentum will not change from the inside. An object in motion doesn’t naturally change its momentum or direction on its own. Changing direction or momentum, requires external force.
This idea is based on Newtonian laws of motion. But its my experience that those laws also apply to organizations.
Things don’t change just because we want them to.
And that’s what the activists are doing. They’re seeking change by applying external pressure on organizations.
But the force required to make a course correction is far greater than any force activists themselves can apply.
The posture of the MPD, during the past several years of Black Lives Matter, #TakeEmDown901, and other protest actions is that the protests themselves are an existential threat to the status quo of the City and the department.
The department’s mission may speak to protecting rights, in practice, protecting those rights seems conditional.
Fragility on Display
The “pearl clutching” by the MPD, and supported by the Administration’s defense of the department, is reminiscent of the kind of fragility displayed by white people when confronted with discussions of race.
Rather than see the world through someone else’s eyes, or even understand that the world can be viewed from a number of perspectives, white folks double down on the rhetoric that supports their active or tacit acceptance of racist structures.
Now you will note, the MPD and its administration employs and is led by many people of color, including the Police Director. But the culture of the department was established decades ago by white people. It predates these individuals but remains intact.
That culture was hostile to people of color and the act of protest. Even though the department has made many strides towards equal protection, that culture of hostility lives on.
This is apparent in the posture of the Department toward people of color and activists seeking community change.
Rather than hear the protests and work with the protesters to make sure they stay safe, the department chose to double down on the old practice of spying on folks they deem “suspicious”. MPD did this, despite any real probable cause. They did it without an active investigation into criminal activities. They did it to support their internal culture.
If that’s not the definition of fragility, I don’t know what is.
That’s why the City now seeks to call the Consent Order “dated”. Because honestly, that’s the only defense they have available, besides admitting wrongdoing.
I’m aware of the suspicion and distrust between the Administration, the Police Department, and the activists (both named and unnamed). Those conditions existed before Mayor Strickland took office.
But that posture of suspicion isn’t any way to fix anything.
The police, the Administration, and activists appear to be at cross-purposes. In reality, they all want the same big picture…lower crime and a better life for Memphians.
Its the way we get there that is up for debate.
Rather than seek out that common ground, the department has retreated to its shell. It did so by pushing past the limits of the Consent Order, viewing it as illegitimate.
The Mayor’s office may not have explicitly approved the MPD’s spying program. It appears to show implicit approval by calling the Consent Order “outdated”.
It also clear in the MPD’s posture toward other citizen led entities is viewed as illegitimate. Like the way the department has completely ignored the CLERB
Mayor Strickland could order the department to change its ways. But considering the City’s posture on this lawsuit, that seems unlikely.
So it appears it will be decided in court. That’s a riskier proposition for the City than the activists.
The City could write their own ticket by withdrawing their defense, and propose procedures that would bring the order “up to date”. If the City is found to be in violation of the Order, that could mean Federal oversight for the MPD.
That would absolutely mean a change in the way the department conducts business.
And maybe that’s the only way change can happen…by losing in court.
According to PACER, a pretrial conference is set for Friday, August 10th. Barring any other delays, the case will begin Monday, August 20th.
The Evolution of Domestic Spying Since MLK in Memphis – City Lab
Memphis Police Spying on Activists Is Worse Than We Thought – City Lab
MEMPHIS POLICE COLLECTED BLACK LIVES MATTER ACTIVISTS’ PRIVATE FACEBOOK POSTS – The Appeal