On February 22, 2017, four plaintiffs filed suit against the City of Memphis, Tennessee in the U.S. District Court Western District of Tennessee for violating their First Amendment rights. The plaintiffs all found themselves on a “black list” created by the Memphis Police Department. They argued that the police department created the “black list,” which consisted of 81 individuals, by recording video protests of City Hall. The black list appeared to denote the individuals who the police determined required police escorts to monitor them in City Hall. The plaintiffs also claimed that police officers bought and used software to monitor various social media sites for subversive conversations. The plaintiffs claimed the creation and maintenance of this black list violated their First Amendment rights and contradicted a prior consent decree from Kendrick v. Chandler. The plaintiffs sought an order to dissolve the black list and an injunction to prevent the creation of lists in the future, an order to show cause why the defendants disregarded the order, an order to find the defendant in contempt of court, monetary damages, and costs and attorneys' fees.

The Kendrick Decree resulted from a previous lawsuit in 1978. Kendrick, et al. v. Chandler, et al., Civil Action No. 2:76-CV-00449 (W.D. Tenn. 1978). The plaintiffs in Kendrick, including the American Civil Liberties Union of West Tennessee (WTCLU), filed a class action against the Mayor of Memphis, the Chief of Police in Memphis, and other officials within the Memphis Police Department. They sought, and were granted, an order preventing defendants from violating the plaintiffs’ First Amendment rights. The plaintiffs claimed that the Memphis Police Department, through a Domestic Intelligence Unit, collected unverified information about individuals they believed were engaging in subversive activities or promoting controversial political views. The plaintiffs alleged that none of the activities monitored by the Domestic Intelligence Unit were criminal, but instead the Domestic Intelligence Unit used the information to harass and intimidate the plaintiffs.

The Kendrick Decree enjoined the defendants and City of Memphis from infringing on any individuals First Amendment Rights. The defendants could not record any information from individuals engaged in lawful demonstrations or maintain files on individuals for reasons that did not serve criminal investigations. Importantly, the order defined the City of Memphis to include all present and future officials, employees, and agents of the city.

In response to the plaintiff’s 2017 complaint citing to the Kendrick Decree, the City of Memphis filed a motion to dismiss the claim, arguing the court did not have the subject-matter jurisdiction to enforce the Kendrick Decree. The following day, ACLU Tennessee moved to intervene, and the court immediately granted the motion. The ACLU-TN sought similar relief as the plaintiffs—an order of contempt for violation of the Kendrick Decree, injunctive relief, and costs and attorneys' fees.

On March 8, 2017, following the intervention of the ACLU-TN, the defendant filed a motion to dismiss the ACLU-TN for the same subject-matter claim it had filed against the original four plaintiffs.

On June 30, 2017, Judge Jon Phipps McCalla granted the defendant’s motion to dismiss against the original four named-plaintiffs, but denied the motion to dismiss the ACLU’s claim. The court found that it retained subject-matter jurisdiction over the Kendrick Decree because the injunction did not have a termination date and applied to future employees of the City of Memphis. However, the court determined that the four original plaintiffs did not have standing to raise the complaint because prior case law in the Sixth Circuit expressed that third-party beneficiaries of a consent decree lacked standing to enforce its terms. Since the ACLU-TN is a successor to The American Civil Liberties Union of West Tennessee, Inc. (WTCLU), an original party in Kendrick, it had standing to raise the claim.

The four original plaintiffs sought a final order to appeal their dismissal with the Sixth Circuit. But the district court did not grant the final order. The plaintiffs filed their appeal anyway, and were ultimately denied by the Sixth Circuit for lack of jurisdiction over the appeal on January 17, 2018.

Meanwhile, the suit between the ACLU-TN and the defendants continued. At the end of discovery, both the ACLU-TN and the City of Memphis filed motions to dismiss. On August 10, 2018, the court granted the ACLU-TN’s motion in part. The court found that the City had been engaged in political intelligence as defined by the Kendrick Decree. However, it determined a genuine dispute still existed over whether the City engaged in action for the purpose of violating any person’s First Amendment rights and whether the City operated in any way for the purpose of political intelligence. The court denied the City’s motion to dismiss, finding that a genuine dispute still existed over the standing of the ACLU-TN.

The bench trial, held from August 20 to August 23, 2018, confirmed that the ACLU-TN had standing to bring the suit because it was a party to the original decree. Additionally, the court found the City had violated the decree by collecting information for the purpose of political intelligence and dedicating an office to do so. The City also failed to review investigations that could result in the collecting information related to the First Amendment, including recordings of protest attendees to maintain a record. And, the City failed to train its officers on the content of the Decree.

As a result of the trial, the court granted ACLU-TN attorney’s fees. It required training of officers to detail that political intelligence—“any investigation into the lawful exercise of First Amendment rights, even if the investigating officer or unit does not have a partisan political motive”—could never be a permissible goal of an investigation. The court compelled the City to create a manual for social media searches and required the City to submit a list of all search terms entered into social media sites every three months to the court until ordered otherwise. The court also determined that it needed to appoint an independent monitor to ensure compliance with the Decree.

Following the court’s opinion, the four original plaintiffs moved to intervene in the post-trial litigation because they had a substantial interest in the modification of the decree. The court denied their motion on January 14, 2019.

Both parties offered candidates to be independent monitors for the case moving forward. On December 21, 2018, the court appointed the defendant’s candidate as the independent monitor of this case. As of February 19, 2019, the independent monitor continued to monitor the City’s compliance with the court’s order and the Consent Decree.

Amanda Stephens - 02/19/2019


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