Undercover cops, Black Lives Matter, and alleged zoo hacking: Memphis Police surveillance on trial

Daniel Connolly | Memphis Commercial Appeal

A trial over Memphis police surveillance of political activists starts Monday before a federal judge. Both the city of Memphis and the ACLU of Tennessee say they plan to call one of the city's best-known officials as a witness: Police Director Michael Rallings.

Once on the stand, Rallings could face questions over the role of undercover officers in infiltrating activist groups, his view of the Black Lives Matter movement, and a wide range of specific incidents, including an alleged plot by activists to hack into computers at the Memphis Zoo.

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And Rallings is likely to mention a potentially deadly standoff from more than two years ago, when he was interim police director. That day, activists had walked onto the Hernando de Soto bridge. As they blocked traffic on Interstate 40, the dangerous waters of the Mississippi River rushed below.

Rallings arrived and helped convince the demonstrators to leave. Within hours, the situation was resolved. No one was hurt.

Rallings' actions on that day in June 2016 won him widespread praise, and likely helped win him appointment as full-fledged police director later that summer.

Even before the bridge incident, the Memphis Police Department was increasingly monitoring activists, prompted by concerns about Black Lives Matter protests and unrest around the country, court records show.

In the months afterward, Rallings and his colleagues would work to stop anything like the bridge takeover from happening again. And his critics have alleged they went too far.

The ACLU of Tennessee says Rallings and other police leaders launched a powerful surveillance apparatus that spied on activists through social media, undercover officers and other techniques, trampling on their rights to free speech and assembly.

The ACLU has already secured a partial victory.

U.S. District Judge Jon McCalla ruled Aug. 10 that the city had violated the 1978 consent order that stops the city government from gathering "political intelligence" on non-criminals.

The judge is allowing the trial to go forward as he considers other matters. Among them: Did the city take part in actions that stopped people from exercising rights to free speech and assembly?

Rallings and others have argued the city has respected first amendment rights. He says monitoring activists on social media helps predict big events that pose a threat to public safety and to businesses.

"These tools enabled me to ensure that the 2016 bridge protest was peaceful and without injury," Rallings wrote in a recent statement. "Without these tools, I believe that night would have ended very differently."

The ACLU says the city did infringe on people's free speech rights. "(The city) created a system for gathering information about beliefs, opinions, and associations related to the exercise of First Amendment rights through a specialized unit dedicated to that purpose," the ACLU wrote.

The "specialized unit" is the police department's Office of Homeland Security, which began monitoring activists' social media, in March 2016, the city has said in court records. On Saturday, a city spokeswoman said the date was actually March 2015.

In a recent statement, Rallings said the media's use of the words "spying" and "surveillance" is erroneous. "The reality is that the monitoring of social media posts and the usage of modern technology such as body cameras are considered to be best practices in policing nationwide," he wrote.

". .. We need to be able to read these posts and use them as part of our decisions about how we deploy resources, since we are responsible for the safety of all involved."

But he said he will obey any order the judge issues.

Other witnesses

Both the ACLU and the city also plan to call forward two other police officials who have played a key role in monitoring activists: Sgt. Timothy Reynolds and Major Stephen Chandler.

The ACLU also plans to call several other witnesses, including activists Elaine Blanchard, Keedran Franklin, Paul Garner and Bradley Watkins. The four were original plaintiffs in the lawsuit, but were dismissed after the judge ruled they couldn't sue under the 1978 consent decree because they weren't part of it.

The city also plans to call witnesses including Hedy Weinberg, executive director of the ACLU of Tennessee. The city maintains the ACLU lacks legal standing to sue.

What's at stake

The ACLU has asked for court-ordered monitoring of the Memphis Police Department and additional training on citizens' first amendment rights, especially the right to protest and peacefully assemble.

The ACLU is also seeking costs and attorneys' fees.

Meanwhile, the city argues the court should toss out or greatly modify the 1978 consent order against surveillance, calling it "dangerous and untenable in today's world," where social movements can quickly escalate into violence, as happened during white supremacist protests last year in Charlottesville, Virginia.

A pile of documents and videos

Legal filings and exhibits in the case already total hundreds of pages. The ACLU plans to introduce a total of 355 documents in the trial, including numerous police department emails that the city handed over during discovery. Many of the documents have already appeared in the court records. Others on the list appear to be new.

For its part, the city plans to introduce 113 documents, including videos of a Jan. 16, 2017 protest at the Valero oil refinery at which demonstrators chained themselves to concrete-filled barrels.

The city also plans to introduce videos of an August 15, 2016 protest at Graceland and an array of other items, including a document called "Posts regarding Zoo Hacking."

The alleged zoo hacking plot

A slide in a police PowerPoint presentation entered into court records shows photos of activists including Fergus Nolan, a 61-year-old semi-retired computer programmer.

He was among many people who complained about the Memphis Zoo's policy of allowing visitors to park on a grassy lawn nearby, the Overton Park greensward.

Nolan was one of the people arrested during a demonstration at the greensward in May 2016.

The police department mentioned him and activist Spencer Kaaz in an intelligence briefing included in court records: "Reliable sources have provided information to the Memphis Police Department that: NOLAN and KAAZ use the 'Save the Greensward' movement as a cover to stage protests designed to reduce zoo attendance, and disrupt Memphis Zoo operations in an effort to close the Memphis Zoo."

Nolan says that's false. “They basically created this myth that the greensward was basically me and Spence manipulating naive suburbanite Midtowners, whatever, for our nefarious Antifa purposes or whatever . . . "

"But I was just somebody who was annoyed by cars parking on the greensward," Nolan continued. "Mainly from sort of an urban environmental point of view.”

Nolan describes doing some things that annoyed the authorities. As he puts it, his "modus operandi" is verbal abuse, like repeatedly writing the anti-police message “All pigs are scum,” on online message boards.

He says after the arrests in May 2016 he created a secret message group where people reviewed protest options, such as slowing down zoo admissions by paying the parking fee in pennies only.

Nolan says he suggested they could find someone to hack into zoo databases. He said he wanted to get customer counts and other information.

He said they never took steps toward doing this. If they had seriously tried to do it, they would have checked with lawyers first, he said.

Nolan says the secret group shut down within a few days.

In the meantime, though, it was infiltrated by "Bob Smith," a Memphis police department social media account that friended activists.

The city may call Nolan to testify at the trial, according to a witness list. He said he doesn't plan to back off. "I’m in their face a lot," he said.

Role of undercover officers still murky

On Aug. 4, 2016, one of the officers monitoring activists, Sgt. Timothy Reynolds, sent an email to other police officials that describes creating an undercover phone number, according to court records.

The police planned to use the number to communicate with activists such as Keedran Franklin and get information on protests put on by their group, the Coalition of Concerned Citizens.

Then on Aug. 10, Reynolds emailed other police officials and said the activists responded and invited him to a civil disobedience training. "Major, I know this is short notice, but I was wondering if we could send someone from (the Organized Crime Unit) over there to gather some information on this meeting," he wrote.

The court record doesn't indicate whether an undercover officer went to that meeting.

However, Hunter Demster with the Coalition of Concerned Citizens says that on least three occasions, he was present when someone from the organization challenged people they believed to be undercover officers.

The court records released so far offer little information on whether undercover officers managed to infiltrate activist groups. That might become clearer as the trial progresses.

Watching Black Lives Matter

The city has argued that peaceful protests can quickly spiral out of control, especially if police don't know about them in advance. The city has complained activists have been launching unlawful, unpermitted protests.

Court records show the government closely watched Black Lives Matter, a decentralized movement that's protested nationwide against police shootings of African-Americans and related issues.

In court records, the city has repeatedly mentioned Black Lives Matter in association with anti-police homicides in other cities. For instance: "On July 7, 2016, five Dallas police officers were killed by a sniper at a Black Lives Matter protest in Dallas, Texas."

Officials at the time said the sniper acted alone. Memphis-area activists strongly reject the link between violence and protests.

“The Dallas shooting was actually not a Black Lives Matter shooting," said Tami Sawyer, who said she believes in many of the Black Lives Matter movement's goals but isn't a member.

"That was somebody acting independently who shot the police officers who was not associated with the planning and attendance of that event.”

Sawyers said MPD has used violence in other cities to justify surveillance here. “But to me it was an excuse to continue monitoring when there’s been no violence or even threat of violence here at home.”

(The city has cited various threats, including threats against officers following the 2015 killing of 19-year-old Darrius Stewart by a Memphis police officer.)

Sawyer led a successful campaign to take down Confederate statues and recently won election to the Shelby County Commission.

She was one of the people friended by "Bob Smith," the online social media avatar the Memphis Police Department used to keep tabs on activists.

Sawyer said she noticed that police showed up whenever her group organized an event.

“If I posted right now ‘In 30 minutes we’re meeting at City Hall' or 'In 30 minutes we’re meeting at so-and-so park,' the police would have already arrived.”

The police department's monitoring amounts to abuse of power and intimidation, she said. "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.”

She said she'll be following news of the trial, but isn't planning to attend.

The trial is expected to last three to five days. It's not clear when the judge will rule.

Click here to read a legal summary of both sides' arguments in the case, as well as their witness lists.

Reach reporter Daniel Connolly at 529-5296, daniel.connolly@commercialappeal.com, or on Twitter at @danielconnolly.