Behind the Headlines – November 15, 2019

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Thank you. – Crime, policing,
and the consent decree, tonight, on
Behind the Headlines. [dramatic orchestral music] I’m Eric Barnes with
The Daily Memphian, thanks for joining us. I am joined tonight
by Michael Rallings, Director of the
police department, Memphis Police Department,
thanks for being here. – Thank you for having me. – And Bruce McMullen
is Chief Legal Officer for the City of Memphis,
thank you for being here. – Thanks for having me.
– Along with Bill Dries, reporter with
The Daily Memphian. I’m going to start
with Bill, giving us a kind of quick primer
on the consent decree, and then we can
talk more about that, interpretations of it,
its impact, and you all were trying
to get that modified. But Bill why don’t we start
with just a background on the consent decree. – Alright, we’ll go
pretty basic with this, 41 years ago in 1978,
there was a lawsuit by the American Civil Liberties Union
of Tennessee against the City of Memphis. That was resolved with an
agreement by all sides involved in the litigation,
in a consent decree. The issue in the lawsuit was
political surveillance by the Memphis Police Department. There were some guidelines
in the consent decree, in effect ground rules for
this that specifically said the police department
can not do quote unquote “political surveillance.” There’s been a lot of debate
then and since then over the last 41 years about
exactly what the term political surveillance means. Fast forward to about the last
five years when we’ve seen an increase in
protests and activism, what some people have called
the new activism in the city, in the age of social media,
and there have been some new questions about that, some
new controversy about that, and what the police department
has been doing in the last five years, which brought this
case back to Federal Court. – Ok, so is that,
and you all had gone, and I’ll turn to the lawyer at
the table here for a second. You all had gone to
Federal Judge John McCalla, and asked for a modification
to that consent decree, that on Wednesday night,
over night was declined. Is that fair? – It was declined, we got
an order from the court late yesterday addressing
our motion to modify, and the court declined it,
but the court did give us some guidance and some understanding
on the court’s interpretation, which ultimately
that’s all that matters, the court’s interpretation
of the consent decree. And what are our limitations
and what things are not our limitations. – So let’s walk through those. So let’s start with
what you were asking for, and then how you
interpret, and I’ll be fair, I have not read,
neither has Bill, ’cause this is all
as we’re taping this, this is new, so we have not
seen the judge’s documents, so we’re going to rely on you. What were you
asking for, and again, what did you get from the
guidance you described? – What precipitated us filing
the motion to modify is that we have a monitor in
place, Mr. Ed Stanton, and we would go to
him with questions, and this is the process, about
what we can and can not do under the consent decree. And early on
there was a police symposium here on September 11th,
and we had a number of, 65 dignitaries from different
policing agencies, from the DOJ, FBI, TBI, here. And the question
came about under Section i of the consent decree,
whether or not we could coordinate with these agencies
that do not follow the consent decree, and are not bound by
the consent decree, and to what extent we could
receive information from them, and what extent
we could give them information that we acquired. We went to the monitor, the
monitor felt like we were very limited in what we
could receive from them, and what we could also
give those agencies. The judge, we went
before the judge, and he gave us some
instruction at that time, and we looked at a number of
times in which we work with other agencies, with the
Multi-Agency Gang Unit, with Crime Stoppers,
and we also work with Shelby County Schools, so we
looked at those situations, applying some of the logic that
limited us with the symposium to those situations, and we
felt it was a time to go to the court and vet these issues. – Did you get clarification,
you didn’t get the full modification you asked for, but
did you get clarification that that sort of
communication is allowed? – Well, the
opinion just came down, and it’s about 49 pages, and I
don’t wanna speak definitively about the
opinion at this point, but we did get some
instructions from the judge, we did get some clarification
from the judge about what we’re allowed to do, and the nature
of the limitations we have, and limitations
that we don’t have. – So let me go
to Mike Rallings, from a police point of view,
the consent decree as it was interpreted up until now, so
we’re still kind of working through this new guidance,
limited you in certain ways, from your point of view? That’s what the, the mayor
has said that certainly, so from you on a
practical level, of out there policing,
and trying to fight crime and so on,
what limits were put on you that you feel like limited your
ability to fight crime? – So, we know the
presence of social media is just unbelievable now. And so if I think back to,
in the 1970s there was no social media. There was no internet,
no blue crush cameras, no body-worn
cameras, no Twitter, Instagram, Facebook,
none of that existed. So now we’re, it is my
understanding that we’re very limited in our use
of social media, so here’s my concern,
that in a time where we’ve had a mass shooting
almost every month, we still have the threat
of terrorist activities, that the Memphis
Police Department is being told
that you can not do what all other law enforcement
does all over the nation. And my fear is that we’re
going to miss something, and someone is going to post
something on social media and because we’re not looking,
we’re not going to see it, and some child is going to
be harmed because of that. The other implication is,
when you think about child sexual predators. I’m really concerned, and also
my fear is that we don’t really have clear guidance
on what we can do. As Mr. McMullen stated this
decision just came down last night, but we’ve been operating
under this since the judge made his first ruling,
and it’s very cloudy. I don’t know, do you have kids? – (Eric)
Yes. – So I want you to
think about this to where, if there was
something we could do, intercept something that
alerted us to a possible school shooting, or some type
of child sexual predator, I think everyone would
expect law enforcement to act, but if my officers fear that
they can’t use social media, and that means that
they’re not looking, and my fear is that something
catastrophic could occur. – Well, I think in that, since
you brought in the example of the kids, I mean, I
think everyone would agree, 99.99% of people would
say, hey anything to stop a terrorist threat, anything
to stop a sexual predator. But when you’ve
got a situation, we’ll go with my kids. My son was with
the bridge protest. My son, I did not know this,
he was in high school then, he was up there for a time. That is, and back to that sort
of notion of political protest, and where the criticism
of the police department, that the police were
monitoring people who were political activists,
or who just disagreed with the
Strickland administration. That felt very,
very different, right? The monitoring of social media
of a political activist seems very different than
monitoring the social media of a potential terrorist. So where are those lines? – So if you go
back to the decree, and I think that I
have what the judge said, and I think there are
a number of nuggets. The judge said for the most
part that the “officers of MPD “have demonstrated their
dedication to protecting first amendment rights, regardless
of protestor’s opinions.” If you go back to the
activists that testified, the judge said that the ACLU
did not provide sufficient evidence to prove that any
of them were discriminated against, harassed, or whatever. So it is my contention that
we monitored social media, we monitored a lot of
open source information, to protect those
protestors, because when you have a protest,
you have a counter-protest. And we have to leave this
in the context of 2016. In 2016 we had
the bridge protest. Very dangerous situation. Your son was on the
bridge, and I’d tell him today, and I would have told him
then, that is very dangerous, don’t ever do that again. Somebody could have got killed. If you think about the,
after five officers were killed in Dallas–
– (Eric) Sure. – And that was a
peaceful protest, until the gunman opened fire. The three
officers in Baton Rouge. That was a peaceful
protest until those, the gunman opened fire. If we think about the number of
threats that we’re receiving, information from the FBI that
individuals were infiltrating peaceful protests, and
had nefarious intent. So we had an obligation
to protect our citizens, and guess what,
nothing happened. – Alright, let’s
bring Bill in here. – Bruce, do you know yet if the
city will appeal the judge’s ruling on this? – I don’t know, yet. But I doubt it. What we got from the
ruling was some insight, and some instruction
on how the court interpreted the consent decree. And I think once
you read the opinion, you can see the court didn’t
quite interpret it the way the monitor interpreted it, the
court didn’t quite interpret it the way we
interpreted the consent decree. And so it gave
us some guidance. Our overall goal was to modify
the consent decree to the extent that we could
utilize modern day policing, and protect citizen’s
first amendment rights. So we had a two-part goal
in wanting to modify the consent decree. – So can the police department
get a tip via Crimestoppers, or from a citizen that
comes to the police department, and act on that under the
clarification you’ve gotten in the judge’s ruling? – Under the clarification,
and keep in mind, we just got it, and there’s
reading and vetting we need to do before we’re definitive,
but what I understood from the court, that we would have to
verify that the information was not gotten in violation
of the consent decree. So, if you
called in with a tip, and what we would have to
verify that information was not gotten in contradiction
to the consent decree. – So the scenario would be that
it wasn’t a police officer who might have violated this,
and then surveilled someone, and then called in an
anonymous tip on Crimestoppers, or said I got an anonymous
tip, am I correct in that? – Not quite sure I
understand your question. – In verifying an anonymous
tip that the police department gets, do you have to make sure
that it’s not a police officer who has called in an
anonymous tip to Crimestoppers, not saying he’s a
police officer, and then the police
department acts on it. – My understanding, it doesn’t
matter if he’s a police officer or a citizen, when they call in
an anonymous tip we would have to verify that they got this
information consistent with the consent decree, and what the
question we have to figure out is, how do we verify that, so
if you call in an anonymous tip, we have to ask, I would
think we would have to ask, how did you get
this information. And then we would have to do
an analysis as to whether it violated the consent
decree before we acted on it. – Let me interrupt to, just
to say, ’cause of the timing of this, we are filming this
Thursday morning, by the time
this airs on Friday night, I will guess that Bill
will have written a couple of stories.
[Eric and Bill chuckle] Will have a
chance to have read the consent decree, write about it,
we would probably have it posted on our site, so I do apologize
to viewers that we’re doing this kind of in real
time, but there’ll be, between now when we tape it,
and when this airs there will be more information on
The Daily Memphian site, you all will
have had more time, and Bill may have quoted you,
so I would encourage viewers to read up on this on
DailyMemphian.com, as we fill in more
information, but back to Bill. – The other big question to
me has been the role of the Multi-Agency Gang Unit, where
Memphis Police Officers work with law enforcement officers
from other agencies and work with other parts of
the legal system. By Judge
McCalla’s ruling in this, where does that stand? Can Memphis Police Officers get
intelligence via the Gang Unit from other agencies
that are not covered by the consent decree. – From my reading of
it, at this point, the answer is yes, but we have
to verify that that information that we receive does not,
their accumulation of that information did not
violate the consent decree. – Alright. Director, you talked
about counter-protests, and the instability that’s
represented by another protest co-inciding with
yet another protest. For your officers
and for the public. But some of the
surveillance in this was specifically aimed at activists. It was specifically
aimed at things like book recommendations that
were made on Facebook. Do you think the police
department went too far in that? Or in having an officer open
up a Facebook account under an assumed name? – I think that’s
a great question, so I go back to the decree. So if you go
back to the decree, the judge clearly
says that the decree, the 1978 decree imposes
significant burdens on the Memphis Police Department. It also says that it’s an
extremely high standard, so I think what’s important is
that no one’s constitutional rights were violated. The decree, very
difficult to abide by. So when you go back to these,
some of the stuff that you’ve said I haven’t seen,
the decree talks about political intelligence. And talks about the
difficulties of navigating that while using modern technology. And I think that when,
again, our officers, the judge clearly says that
these mistakes were probably made because of our
interpretation of the decree, and I think he talks about, we
needed to have done a better job training
officers on the decree, but here’s the confusion. You have an
interpretation of the decree, the city attorney
has an interpretation, I have an interpretation, but
ultimately the judge will tell us how this decree
should be interpreted. Without this action, we
still would be operating under probably some
mis-interpretation. And so the significant burden
is that it is so confusing, my fear is that it’s
going to cause an action, because it’s too difficult
to try to figure out what is allowable, what
is not allowable, what happens when you
get this gray area, and if there is a
threat to life, and we pause, could
it cause your child, or your grandchildren
to lose their life? That’s my fear. Everything we did
was for public safety. We never stopped anyone
from expressing their first amendment right. There’s some people that are
alleging we did certain things that have yet to be proven. So did we make some mistakes? Based on the
judge’s interpretation, we did. But we’re here to try to do
everything we can do to comply with the judge’s
interpretation of the decree. Obviously if the
monitor, the city, the judge, we don’t all
agree of the interpretation, we’re trying to find
that middle ground, it’s much more complictated, and let me say
just one more thing. In 1978 nobody wore seatbelts. Well we learned that
seatbelts saved lives, so everybody knows
click it or ticket. So we found that something
that was done in the ’70s, we probably need to go
re-visit that and modify it, and make it apply to
modern police work, and that’s all we’re asking. – Bruce, your point on this,
and it sounds as if this is still very much a process of
figuring out what the terms from 1978 mean in
2019 going into 2020. – Absolutely, and I
want to make three points. One thing that
you picked up on. It doesn’t limit what
information we get from police agencies,
it limits what information we get from third parties. So whether or not Conduit,
the company that gets the video data that provides it to
MPD, that is a third party. And one of our
questions to the monitor was, do we have to verify that
they complied with the consent decree in order to
accept that information. The monitor felt that his
interpretation was that it was. It did. The court gave us some
more instruction on that, and we’re working
our way through that. So it’s not just if a
police officer called into Crimestopper, if any citizen. There are three scenarios
in the mayor’s newsletter, and all three of those
scenarios are real scenarios that have happened, in which
we have gone to the monitor and we’ve gotten some
limitation on our action. One thing I think the
public does not know, when Director Rallings, or
someone on MPD runs into a situation where in their mind
they need guidance on whether this violates the
consent decree, no matter what time of night,
and I think the monitor will vouch for this, they
will give me a call, and they’ll bounce
the scenario off me. I will put it in an
email to the monitor, and then call the monitor. I have a special
number to call him on. I’ll call the
monitor, we’ll discuss it, he will give me a
ruling right there, and I’ll immediately call
Director Rallings or someone at the police department, and we
will handle that situation. A lot of times
that happens late at night in real-time situations. I think the riots that
occurred in Frayser, that was one situation where
there were multiple calls to the monitor, can we do
this, can we do that, can we do this? The monitor has to
make real-time decisions, we have to make
real-time decisions, and our overall objective
for everybody is to provide public safety,
and to not infringe on someone’s constitutional rights. – So is there a distiction here
because a third party is not covered by the consent decree,
is the distinction here not that that third party
has the information, but how the police department
acts on that information? – Well the distinction is how
did they get the information? Did they get it consistent
with the consent decree. Bill, if you
call Crimestoppers, and provided a
tip on something, my reading of
the court’s order, and I may amend that after I
read it a couple of more times, is that we have to verify how
that you got that information consistent with
the consent decree. And you are a third party,
you’re not a police officer, you’re just a third party. – Does this, with the… the ruling from the judge,
the monitor stays in place, so now the monitor
has guidance as well, is that, so this process
you’re talking about with the back-and-forth with the monitor
continues with new guidance in place for everyone involved. – Oh absolutely, the monitor
stays in place and he is very responsive, any time of night,
we call him with a situation. But, and ultimately, the judge
will see all those things, and rule whether or not the
interpretation by the monitor, and you’ll see in the opinion,
the interpretation by the monitor, our interpretation,
and our interpretation of what the monitor said was correct. [Eric chuckles]
So it gets very complex. – One thing that was,
I think, I don’t know, that others found
disturbing or questionable, or just were surprised by, is
when the police department had set up a fake Facebook account,
or social media accounts to kind of, essentially to friend
other people on social media to understand what they were doing
and get insight into that. Is that allowed? – The court has said
that is not allowed, so that is not allowed. – And that wasn’t
changed in this. – Right. But we also were about
the circumstances of that. How do you handle dealing with
sexual predators online if you have to say, “I am Mike
Rallings, Director of Police.” – Right. – So there are unintended
consequences that we are struggling with. The Bob Smith account
you are talking about, the court has said, that is not
allowed and that’s a violation of the consent decree,
and that action has ceased. – But again, even, the
notion, again it gets back to, this isn’t just about
terrorists and sexual predators, and violence. I think we’re all
opposed to those things. It’s also about people who
are just going about their day, people who are opponents of the
Strickland policies on taxes, or PILOTs, or
whatever the heck it is. So what are the checks
and balances in place that political differences aren’t
being monitored and filed, and sort of profiles and
records being kept on them, simply for their
political differences. And yeah, that might turn
into some sort of rally, or some sort of
march, but again, that’s still not violence. – I can tell you, I’ve been
involved in this since the initial ruling. And there is no evidence, and
the court says in his opinion, in the first opinion,
that there is no evidence, that the person’s political
point-of-view had anything to do with MPD’s action. So that has
never been an issue, that has never been
proven by the court, proven in court,
and I have never seen any evidence that a
person’s political opinion drove any action
by the city or MPD. – Two minutes left, I’m
going to go back to Bill. – Director, can you
do sting operations? Can a police officer pose as… a john in trying to
make prostitution arrests? – So it’s my interpretation
that we still can do a sting-type operation. But again, it’s still cloudy. So we’re still
operatingn in a gray area, and I think that, again, it
limits our ability to provide good police service, and again,
I think we’re simply asking that this outdated
decree be modified. The decree never
had an expiration. I don’t know of many decrees that don’t have
some type of expiration. So it could go on forever. We don’t know what type of
technology is going to come out, how people are
going to communicate. So we just think that that
decree should be modified so we can do modern policing
and keep our citizens safe. So and the other thing that I
think we need to think about is, with all the cameras
that people are asking for, I think the County just
approved another large sum of money for cameras, and that
there are implications to all of this. And so I’m concerned that
will we have to pull these cameras down? Will we have to
something different with our body-worn camera,
in-car video program? Is there something
we’re going to miss? We’ve, most people don’t
know that we’ve responded to, I think the number is
94 threats to schools, churches,
businesses, public officials, this year. And most of those tips come
in in the middle of the night, we’re trying to get law
enforcement in place before the school bell rings, and folks… significant burdens to what we
do have been put in place by this decree. – Alright on that
difficult note, we will end it there. Appreciate you both
being here, and again, more news on our site and
others as we digest and report on this ruling. Thank you for joining
us, thank you Bill, thank you both. Join us again next week. [dramatic orchestral music] [acoustic guitar chords]