On February 22, 2017, four plaintiffs filed suit against the City of Memphis, Tennessee in the U.S. District Court for the 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 based on the same subject-matter argument it had deployed 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 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 to the Sixth Circuit. But the district court did not grant the final order. The plaintiffs filed their appeal anyway, which the Sixth Circuit dismissed for lack of jurisdiction 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 of 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. In particular, units of the Memphis Police Department investigated people associated with the Black Lives Matter movement and other political groups because of their protected political speech.

As a result of the trial, the court granted ACLU-TN attorneys' 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 ordered the City to create new guidelines and training for officers engaging in investigations that might result in political intelligence by January 14, 2019. It also compelled the City to create a manual for social media searches and submit a list of all search terms entered into social media sites every three months to the court until ordered otherwise.

Judge McCalla also determined that an independent monitor should assess compliance with the Decree. Both parties offered candidates to be independent monitors for the case moving forward. On December 21, 2018, the court appointed the defendant's candidate, former U.S. Attorney Edward Stanton III, as the independent monitor of this case.

As required by the order, the City submitted a new set of training policies on January 14, 2019. The ACLU-TN filed objections to those policies, and the court asked the Monitor to investigate further. On April 5, 2019 the Monitor filed his first report, in which he mostly agreed with the ACLU-TN's criticism of the City's training measures but also accepted the City's proposed solutions to many of the issues raised by the ACLU-TN. Judge McCalla held a hearing on the matter on April 23, 2019.

On May 2, 2019, the Monitor filed his first quarterly report. In it, he assessed that, to date, the City was on track to become compliant with the consent decree. He also outlined plans for soliciting public opinion on the City's practices.

On August 7, 2019 the Monitor filed his second quarterly report under seal with the court. The court held a hearing to address the report on August 27, 2019. In a September 5 order following the hearing, Judge McCalla noted that the Monitor's next steps were creating and implementing a compliance plan for the City, as well as creating community focus groups. Additionally, the report said that the City and the Monitor were working to create a new social media investigations policy for the Police Department.

The City the filed a motion to modify the consent decree on September 25, 2019, which the ACLU-TN opposed. In its motion, the city argued that several provisions of the decree hindered its ability to conduct law enforcement functions, including by preventing it from entering into partnerships with state and federal agencies. Judge McCalla denied this motion in a November 13, 2019 opinion, finding that the modifications requested by defendants would erode the purpose of the original consent decree but allowed for the possibility of modifications after discovery and an evidentiary hearing.

On November 20, 2019, the Monitor filed his third quarterly report with the court. In it, he reported that a compliance plan had been created and was being implemented. He also noted that he received many requests for community members to be included as members of the monitoring team and opined that the creation of a civilian advisory board might be useful in this case.

On December 6, 2020, the parties filed a schedule for discovery and trial on the modifications to the consent decree, with June 17, 2020 chosen for the trial, which the court adopted in a January 2, 2020 hearing.

The City submitted its new social media policy to the court for review on December 21, 2019, to which both the ACLU-TN and the Monitor objected. Judge McCalla also heard objections to this policy during the January 2, 2020 hearing on modifications to the consent decree and allowed the City to respond to these objections in writing.

In a February 28, 2020 letter, the Monitor informed the court that he believed the City had violated one of the sanctions imposed on it by failing to maintain records of social media search terms. The court scheduled a hearing in mid March to resolve this issue, but it was delayed to May 14, 2020 due to the COVID-19 pandemic. In an August 19, 2020 order, the court found that the Memphis Police Department had failed to report searches made by officers using their personal Facebook accounts.

On April 17, 2020, the City asked the court to order mediation between itself and the ACLU-TN in order to narrow the issues for the June 17, 2020 hearing. The court authorized the Monitor to mediate between the two parties in an April 28, 2020 order.

The Monitor filed the first quarterly report of 2020 on May 20, 2020. In it, the Monitor reported that many of the case's outstanding issues remained unresolved, including the approval of the City's new social media policy, the City's alleged sanctions violations, and the Monitor's solicitation of feedback from the public.

In advance of the June 17 hearing, both the City and the ACLU-TN filed trial briefs and, on June 8, 2020, submitted proposed changes to the consent decree. Between June 17 and 22, 2020, Judge McCalla presided over a four day evidentiary hearing over Zoom to consider the modifications to the consent decree. After the hearing, both sides provided the court with additional briefing on the proposed modifications.

Judge McCalla resolved the City's motion to modify the consent decree in a September 21, 2020 hearing. He found that there was sufficient evidence to support the changes to the decree agreed to by the City and the ACLU-TN. However, he refused to make the changes the City requested unilaterally, which related to the City's ability to work with outside law enforcement agencies who were not bound by the decree. Judge McCalla found that the City's issues with the contested provisions could be resolved by better training and that the provisions did not affect the Memphis Police Department's existing relationships with other law enforcement agencies. Judge McCalla then issued an updated judgment and consent decree.

The City appealed Judge McCalla's ruling to the Sixth Circuit on November 3, 2020 (No. 20-6263). As of April 6, 2021, the appeal is fully briefed, but there has been no decision. The case is ongoing.

Amanda Stephens - 02/19/2019
Jonah Hudson-Erdman - 04/06/2021


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