Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 1 of 86 PageID 4905 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ELAINE BLANCHARD, KEEDRAN FRANKLIN, PAUL GARNER, and BRADLEY WATKINS, Plaintiffs (dismissed), and ACLU OF TENNESSEE, INC., Intervening Plaintiff, v. CITY OF MEMPHIS, TENNESSEE, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:17-cv-2120-JPM-egb PRETRIAL ORDER Pursuant to Federal Rule of Civil Procedure 16, a pretrial conference was held in this matter on August 10, 2018, at which counsel for the parties appeared and from which it has been determined as follows: I. JURISDICTION There are no jurisdictional questions for the Court to resolve. Defendant contests the standing of the American Civil Liberties Union of Tennessee, Inc. ("ACLU-TN") to bring this action. II. PENDING MOTIONS There are no pending motions for the Court to resolve. Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 2 of 86 III. PageID 4906 SUMMARY OF THE CASE Short Summary by Plaintiff: The issue before this Court is whether the City has violated the Consent Decree entered in Kendrick v. Chandler, Civil Action No. C76-449 (the “Decree”) and should be held in contempt. The Decree enjoins the City from engaging in several types of activities that center around gathering intelligence and surveillance of people engaged in protected free speech activities. Since its entry, the Court has not modified the decree nor have the restrictions been lifted by the Court. The City’s violations are both wide-ranging and pervasive and constitute a pattern of political intelligence collection, electronic and covert surveillance, harassment of those exercising their First Amendment rights, and attempts to deter the free exercise of First Amendment rights. The evidence of these violations meets ACLU-TN’s burden of proof by clear and convincing evidence that the City is in contempt of the Decree and the City cannot show that it is unable to show that it is in substantial compliance with the court order. ACLU-TN asks the court to enter findings of contempt and order remedial action to ensure the City’s compliance with the Decree. Complete Summary by Plaintiff: The City of Memphis through its Police Department (“MPD”) has violated the Decree. The City contends that the Court should look outside of the Decree to interpret its requirements. However, the Decree is not vague, ambiguous, or susceptible to multiple interpretations. Accordingly, the scope of the Decree must be discerned within its four corners. The Decree enumerates four categories of conduct prohibited by its provisions: (1) Political Intelligence; (2) Prohibition against Electronic Surveillance for Political Intelligence; (3) Prohibition Against Covert Surveillance for Political Intelligence; and (4) Harassment and Intimidation Prohibited. “Political Intelligence” is defined by the Decree as “the gathering, indexing, filing, 2 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 3 of 86 PageID 4907 maintenance, storage or dissemination of information, or any other investigative activity, relating to any person’s beliefs, associations or other exercise of First Amendment rights.” Decree § B(4). “First Amendment rights” is defined as “rights protected by the First Amendment to the Constitution of the United States including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and to publicly for any lawful purpose.” Decree § B(1). Under the first category of conduct — Political Intelligence — the Decree includes two restrictions: (1) Defendant “shall not engage in political intelligence”; (2) Defendant “shall not operate or maintain any office, division, bureau or any other unit for the purpose of engaging in political intelligence.” Decree § C. Under the second category of conduct — Electronic Surveillance — the Decree states that Defendant “shall not intercept, record, transcribe or otherwise interfere with any communication by means of electronic surveillance for the purpose of political intelligence.” Decree § D. Under the third category of conduct — Covert Surveillance — the Decree includes two restrictions: (1) Defendant “shall not recruit, solicit, place, maintain or employ and informant for political intelligence”; and (2) no officer, employee or agent of Defendant “for the purpose of political intelligence, infiltrate or pose as a member of any group or organization exercising First Amendment rights.” Decree § E. Under the fourth category of conduct — Harassment and Intimidation — the Decree describes further prohibited activities. First, Defendant “shall not disrupt, discredit, interfere with or otherwise harass any person exercising First Amendment rights.” Under this heading the Decree enumerates a non-exclusive list of prohibited conduct, including that (1) Defendant “shall not disseminate damaging, derogatory, false or anonymous information about any person for the 3 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 4 of 86 PageID 4908 purpose of political intelligence,” and (2) Defendant shall not “attempt to provoke disagreement, dissention or violence between persons.” Decree § F(1). Second, the Decree provides that Defendant “shall not engage in any action for the purpose of, or reasonably having the effect of, deterring any person from exercising First Amendment rights.” Decree § F(2). As an illustration, the Decree states: “Defendant shall not, at any lawful meeting or demonstration, for the purpose of chilling the exercise of First Amendment rights or for the purpose of maintaining a record, record the name of or photograph any person in attendance . . . .” Decree § F(2). The Decree contemplates that certain criminal investigations may collect information regarding the exercise of First Amendment rights; thus, the parties agreed to a protocol for review and authorization of such criminal investigations. Any officer “conducting or supervising a lawful investigation of criminal conduct which investigation may result in the collection of information about the exercise of First Amendment rights . . . must immediately bring such investigation to the attention of the Memphis Director of Police for review and authorization.” Decree § G(1). Upon receipt of such a notification, the Director of Police was to review the factual basis of the investigation and the investigative techniques to be employed. The Director could then authorize the investigation for a period of ninety (90) days after making written findings: The Decree further regulates the maintenance and dissemination of personal information. Decree § H. The Decree prohibits collection of personal information unless it is collected in the course of a lawful investigation of criminal conduct and specifically provides that Defendant “shall not disseminate personal information about any person collected in the course of a lawful investigation of criminal conduct to any other person, except that such information may be disseminated to another government law enforcement agency then engaged in a lawful investigation of criminal conduct.” Id. 4 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 5 of 86 PageID 4909 The City has twice raised an issue as to whether ACLU-TN has standing to enforce the Decree. Both times, the Court has ruled against the City. Defendant insists that a long defunct corporate entity, whose name appears nowhere in the original complaint, was a plaintiff in the original lawsuit. ACLU-TN has offered proof that it, through its West Tennessee Chapter, was the original party. Even if Defendant were correct that another legal entity was the plaintiff, the ACLU-TN would be considered a successorin-interest, which would satisfy the standing requirement to enforce the Decree. Short Summary by Defendant: This case is not about the violation of Constitutional rights; it is about whether the City "substantially complied" with a forty year old Consent Decree. Assuming that the issues addressed and terminology used in the Decree are considered in historical context, with a view to upholding the Decree’s original intent and purpose, the City has substantially complied. The Decree should be interpreted taking into consideration the material changes in technology which have occurred since 1978, with concomitant challenges presented to law enforcement's core duties of preserving the peace and protecting its citizens, including citizens engaged in the legitimate expression of their Constitutional rights to freedom of expression and association. In short, this case is about whether, as Intervening Plaintiff contends, the City is restricted to engaging in reactive policing, only taking action to protect the public after an act of violence or lawlessness occurs, or whether it may, consistent with 21st Century policing best practices, use technology and modern investigative tools to proactively protect the public while also protecting the rights of citizens to engage in constitutionally protected activities. Complete Summary by Defendant: The Intervening Plaintiff, ACLU-TN, lacks standing as required by Article III of the 5 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 6 of 86 PageID 4910 United States Constitution to bring a claim to enforce the Consent Decree. It was not a party to the lawsuit or the Decree and is not a successor-in-interest to the (nonexistent) alleged corporate entity which was a signatory to the Decree. The Intervening Plaintiff has not and will not carry its burden of establishing standing to seek to enforce the Decree.1 In fact, it has provided no evidence that it was a party to the Decree, nor that it was functionally the same entity as a party to the Decree, or that it is a successor in interest to a party. To the contrary, the evidence shows that the American Civil Liberties Union of West Tennessee was a separately chartered entity entirely distinct from Intervening Plaintiff, and that the former party to the Kendrick action was dissolved as a corporate entity in 1983. It no longer exists in any capacity. And while there is absolutely no evidence that the Intervening Plaintiff is a successor in interest to an original party, that point is moot because clear Sixth Circuit law holds that a successor in interest lacks standing to enforce a consent decree to which it was not an original party. This case arises from allegations that the City's brief inclusion of a private residence "no trespassing" administrative order in a pre-existing list of individuals subject to escort while in City Hall, and the use of a social media collator by the Memphis Police Department predating the current Administration, violated the 1978 Kendrick Consent Decree. The evidence demonstrates that the challenged list, containing 41 names, was removed from the City Hall Escort List after approximately six weeks, and that during this time frame one person was actually subject to escort after a report to City Hall security staff that he "jokingly" wondered while attending a City Council meeting what would happen if he "brought a gun" into City Hall. The social media collator tool and the social media monitoring of certain individuals and 1 The Court's Order denying the City's Motion for Summary Judgment on standing characterizes the issue as one of "a disputed issue of fact." See ECF No. 117. The Intervening Plaintiff has the burden of proof on this issue at the hearing. 6 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 7 of 86 PageID 4911 groups engaged in often unpermitted (and therefore unlawful) protests involve monitoring of what are considered as a matter of law "open source" social media posts with regard to which there can be no expectation of privacy. These sources of information are very helpful to the Police Department in planning for an appropriate level of protection at the event for budgeting purposes, as well as to anticipate and help prevent disruptive, unlawful activities at many of the protests. The evidence demonstrates that even at protest events falling within the parameters of the City's permit ordinance, but where no permit was obtained, the Memphis Police Department exercised remarkable restraint, allowing the protests to occur as long as public rights of passage and public safety were maintained. Arrests were made at these protests rarely occurred and only when protesters openly engaged in conduct that even the Intervening Plaintiff concedes warranted arrest. The ACLU-TN's allegations of violations of the Decree are premised upon an unreasonably narrow and strained interpretation of the Consent Decree. It presumes that the effect of the Consent Decree is to prohibit the Memphis Police Department (“MPD”) from monitoring and observing the public activities of individuals involved, often repeatedly involved, in protest activity where the activities include the expression of political opinions and beliefs, even when those activities occur in proximity to unlawful or criminal behavior by the speaker or those with whom the speaker is communicating. The Intervening Plaintiff does not consider the primary motivating factors associated with the MPD's "surveillance" and monitoring activity to be relevant to the Court's interpretation of the Decree, even though the Decree repeatedly uses the term "for the purpose of political intelligence" when proscribing certain actions. When read in the context of the circumstances existing in 1978, the Consent Decree was intended to curb clearly abusive law enforcement activities where the record strongly suggested 7 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 8 of 86 PageID 4912 that the police were targeting individuals for political intelligence gathering based upon the content of their speech, not for legitimate public safety (or protester safety) concerns. The Consent Decree was not intended, and does not, in fact, prohibit the MPD, in this post 9-11 world, from engaging in intelligence for anti-terrorism, public safety and officer safety purposes in the ways and under the circumstances now challenged by the ACLU-TN in this case. Moreover, it is clear from the language of the Decree, that even in the context of the 1978 circumstances in Memphis, the Decree only restricted the gathering of “political” intelligence where it involves First Amendment rights being exercised for a “lawful purpose.” The current City Administration seeks to strike a reasonable balance between the rights of citizens to assemble in order to express grievances and to promote their ideas and goals with the rights of its citizens to be protected from the disruption and threats to public safety sometimes associated with these events. In order to do this, the City needs a police department that is empowered to use 21st Century methods to anticipate these threats which, in the world of social media, are widely disseminated and encouraged, very quickly. The purpose of the MPD in using these tools is not "political intelligence"; it is public safety. The ACLU-TN's reactive approach to interpreting the Consent Decree would strip the MPD of many of the tools, which are necessary in order to protect the public, law enforcement officers, and in many instances, to protect the protesters themselves. Most, if not all, of the incidents identified by the ACLU-TN as being contrary to the Decree occurred from 2014 through 2017.2 During that time, law enforcement agencies across this country were struggling to balance the legitimate need to encourage the expression of concerned citizens on social issues, while providing protection to the protesters involved in 2 The current City Administration took office in 2016. 8 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 9 of 86 PageID 4913 promoting these issues, as well as to counter-protesters in the same arena, and to police officers and public officials themselves. In Memphis, as in other cities across the country, some of the most visible and powerful expressions of "political speech" concerned the deaths of African American men involved in interactions with law enforcement officers. Unfortunately, although the vast majority of protest activity surrounding this issue was peaceful, in several notable and widely publicized incidents, events spun rapidly and dangerously out of control. An event of this kind, but thankfully without the deadly consequences, occurred in Memphis on July 10, 2016 when a gathering at the FedEx Forum, commemorating the one year anniversary of the death of an African-American man in Memphis during an encounter with a Memphis Police officer, took place less than two miles from a gathering of Civil War enthusiasts and white supremacists. As the FedEx Forum crowd grew, it turned into an unorganized group, including small children, which moved onto and shut down interstate traffic for several hours. on the I-40 Bridge connecting Tennessee and Arkansas. Although clearly an unlawful and overtly dangerous gathering, City leaders and law enforcement officers resolved the standoff without loss of life or serious injury. Some of the individuals involved in the "Bridge Shutdown" periodically threaten to do it again. The highly questionable "success" of the dangerous incident is celebrated by activist groups in the City, with events being scheduled to "honor" the instigators of the event. Unquestionably, this harrowing event heightened the awareness in the MPD that the City must be prepared for similar events, even permitted events, because of the potential that they could turn into dangerous situations and bring into play the potential for the kind of violence occurring in similar demonstrations around the country. Many of the incidents identified by the ACLU-TN as violating the Consent Decree occurred during the days and weeks following the Bridge 9 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 10 of 86 PageID 4914 incident. Even on heightened alert following traumatic events such as the Bridge shut down, the City has not disrupted, interfered with or harassed any person lawfully exercising her or his First Amendment rights. MPD officials have repeatedly allowed even unpermitted (where a permit was required) events to go forward without interference as long as public safety was not threatened. Even where accused of engaging in actions violative of the Decree, the ACLU-TN has not come forward with credible evidence that the MPD has in actuality "chilled" the exercise of anyone's First Amendment rights. The best example of this is the overblown focus on the "Escort List", of which the subjects were completely unaware, and where exactly one person, who absolutely should have been escorted because he was reported to have "wondered" what would happen if he brought a gun into a City Council meeting, has been identified by the ACLUTN as actually being escorted. The City believes that the reading of the Consent Decree in the context of its historical background, coupled with a realization of the challenge facing the MPD in today’s world, will lead to the conclusion that it has acted reasonably and not with contempt for the Consent Decree and its provisions. Forty years have passed from the entry of the Consent Decree. Technology and law enforcement best practices have changed dramatically, as have the expectations placed upon law enforcement in this post 9-11 world. Should the Court consider it advisable, the City welcomes clarification, guidance and instruction from the Court on the specific parameters of the Decree, as it should be applied to the imperatives of daily law enforcement and public safety needs. IV. CONTENTIONS OF THE PARTIES Plaintiff’s Contentions: 10 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 11 of 86 PageID 4915 The City of Memphis through its Police Department (“MPD”) has as a matter of law violated the consent decree entered in Kendrick v. Chandler, Civil Action No. C76-449 (the “Decree”). MPD’s violations, both wide-ranging and pervasive, constitute a pattern of political intelligence collection, electronic and covert surveillance, harassment of those exercising their First Amendment rights, and attempts to deter the free exercise of First Amendment rights. On February 17, 2017, the City of Memphis released documents listing people who must be escorted by police when visiting City Hall. (Complaint, Ex. 2, ECF No. 1.) This list— sometimes referred to as the City Hall Escort List — is symptomatic of the broader practices within MPD with respect to surveillance, investigation, targeting, and dissemination of information regarding protestors and activists, and its creation arises out of the intersection of multiple abusive practices. Plaintiff contends that Defendant violated Section C.1 of the Decree by collecting and disseminating information about individuals’ beliefs, opinions, associations, and exercise of First Amendment rights through the creation and dissemination of the City Hall Escort List and underlying Authorization of Agencies, the daily Joint Intelligence Briefings (JIB), and the weekly Power Point presentations featuring free speech events. Individuals were targeted for investigation based on their “associations-in-fact,” their affiliations with protest groups, and their participation in free speech activities. Defendant also cataloged “Key Members” involved in protests to track the “pattern” of who attended unpermitted events, undertook broad-based investigations of individuals (both in person and electronically), and by utilized software to map associations between individuals based on their beliefs, opinions, and associations. Defendant violated Section C.2 of the Decree by operating the Office of Homeland Security as an office dedicated to collecting and disseminating the information described above. Its mission included a focus on “local individuals or groups that were staging protests.” 11 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 12 of 86 PageID 4916 Defendant violated Section E of the Decree by covertly surveilling individuals and groups engaged in free speech activities electronically through the covert Bob Smith account, by use of an undercover phone to gain access to private group communications, and on the ground by placing plain clothes and undercover officers at meetings and free speech events on public and private property. Defendant violated Section F of the Decree by circulating personal and confidential information about individuals involved in the exercise of their free speech rights, including but not limited to arrest and mental health records and information regarding ongoing investigations. This information was circulated in the JIBs multiple times a day to both within MPD and outside of MPD to regional law enforcement and even to members of the community. JIBs also included information that was incorrect, unconfirmed, and mere rumor. The dissemination of personal information also violates Section H of the Decree. The exchange of political intelligence with law enforcement agencies, not in the course of a lawful criminal investigation, also violates Section K of the Decree. Defendant violated Section F of the Decree by specifically engaging conduct used as an example of a violation, by regularly naming and photographing individuals exercising their First Amendment rights. Defendant discouraged the exercise of First Amendment rights by enforcing different standards for obtaining a permit for protests than other types of events. And, Defendants chilled the exercise of First Amendment rights by aggressively contacting event organizers and questioning them regarding their agenda and their affiliations. Defendant violated Section G of the Decree by failing to comply with the Decree’s requirements that the Director approve criminal investigation that necessitated the collection of political intelligence. Defendant disregarded those procedures entirely. 12 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 13 of 86 PageID 4917 While the passage of time had led to new technology which enhance the City’s policing capabilities, those changes have not fundamentally altered the conduct prohibited by the Decree. Plaintiff does not contend that Defendant’s use of modern technology, such as social media collators, to observe publicly available information unrelated to the collection and dissemination of political intelligence violates the Decree. Plaintiff asks the Court to look to the plain language of the prohibitions set forth in the Decree and the wide ranging and pervasive conduct by the City that violates those prohibitions and find the City in contempt of the court order. Defendant’s Contentions: A. 1978 - The Kendrick Consent Decree The September 14, 1978 Kendrick Consent Decree prohibited the City from engaging in "Political Intelligence" which is defined as "the gathering, indexing, filing, maintenance, storage or dissemination of information, or any other investigative activity, relating to any person's beliefs, opinions, associations or other exercise of First Amendment Rights." Importantly, the Consent Decree defined "First Amendment rights" as well, as "…rights protected by the First Amendment…including, but not limited to, the rights to communicate an idea or belief, to speak and dissent freely, to write and to publish, and to associate privately and publicly for any lawful purpose." (Emphasis added). B. There is no history of findings of non-compliance with the Decree in almost forty years. The City has not been found in contempt or noncompliance with the Consent Decree since 1979. C. Protests and violence toward law enforcement. In the months following the 2014 events in Ferguson, Missouri, several people were 13 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 14 of 86 PageID 4918 killed in confrontations with police officers, and several law enforcement officers where themselves killed in apparent retaliation for some of the events One of the commonly used means of drawing attention to large public protests across the country since Ferguson has been the disruption of traffic and commerce. Predictably, and despite efforts by community leaders to keep the protests peaceful, some of these disruptive demonstrations turned violent. As the number of these oftentimes-violent protests increased, so did violence against law enforcement. The Bridge shutdown in Memphis occurred in the immediate aftermath of nationally publicized and volatile event of this kind. In the months following the Bridge Incident, public threats were made by certain individuals that were involved with the organization of the Bridge Incident to "Go back to the bridge" and to stage "Bridge Part II." Additionally, threats were made to hold large, unpermitted rallies at the Commercial Appeal, the Chamber of Commerce, and Graceland, among other locations. All of these announcements of intent to disrupt (as well as to protest) were made via social media. While the cause espoused by the protestors may have been valid, the risk of violence and public harm was nonetheless high. MPD could not simply ignore that risk and fail to make plans to insure safety of all who might be involved in or affected by the gatherings. D. MPD's Office of Homeland Security In direct response to these acts of civil disturbance, and in the wake of deadly violence toward law enforcement, in 2014 the MPD began monitoring social media in an effort to protect officer safety, as well as the safety of the public and the protestors, at demonstrations in the City. The MPD's Office of Homeland Security ("OHS") was tasked with finding out when an unpermitted protest might take place, the size of the event, and the nature of the event so the 14 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 15 of 86 PageID 4919 MPD could do its best to make operational plans and provide officers to support the event and to mitigate the risk of violence or harm to the public, the protestors, and any counter protestors that might appear at such an event. The initial focus of the OHS following 9/11 had been international and domestic terrorism. Starting in 2015, that focus shifted significantly toward obtaining intelligence about planned large events that might pose the potential for violence or create a large-scale disruption of traffic or commerce. After the Bridge Incident, Memphis Police Director Rallings tasked the OHS with creating a spreadsheet of protests to track the size of each protest, and whether the protests were permitted. The purpose of the spreadsheet was to be able to better prepare for the protests in terms of both manpower and budget. Because of the MPD's severe officer shortage, every large protest in the City inevitably requires thousands of dollars of overtime hours by MPD. To accomplish the public safety and operational planning mission of OHS, Sergeant Tim Reynolds of the OHS, and his partner, started monitoring the Facebook, Twitter, and Instagram posts of persons known to have been involved with unlawful protests in the past. Information obtained from these public posts was then placed on a daily bulletin known as the Joint Intelligence Bulletin ("JIB"). The JIB also contained information from federal and state agencies, and was disseminated within MPD as well as to other law enforcement agencies, and in some instances, large employers with sophisticated security operations such as FedEx and AutoZone, in an effort to better prepare the region for any potentially large-scale unlawful events with the risk of violence or traffic disruption. When threats were made to "go back to the Bridge" and stage "Bridge Part II," and to hold large, unpermitted protests at the Commercial Appeal, the Chamber of Commerce, and 15 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 16 of 86 PageID 4920 Graceland, it was the task of OHS to monitor the development of these large unlawful unpermitted events in order to allow MPD to prepare for them. E. The "Die-In" at the Mayor's Home In response to a December 19, 2016 criminal trespass at the Mayor's residence encouraged by activists using social media to promote the event, MPD Director Rallings directed that the MPD investigate the incident anddevise a way to better protect the Mayor's home from criminal trespassers in the future. Sgt. Timothy Reynolds, assigned to OHS, suggested a strategy to have the Mayor execute an Authorization of Agency ("AOA") for the Mayor's home. Because the trespassers' faces were covered in the video, Reynolds developed a list consisting of one activist who could be identified -- Keedran Franklin -- and active participants in a group known as the "Coalition of Concerned Citizens" ("CCC") which openly encouraged the event and future similar events. Reynolds investigated the social media contacts of Franklin and the CCC, and established the identities of individuals who had been arrested or closely associated with them in unpermitted protests in the recent past. The list generated by Sergeant Reynolds was then added to the AOA for the Mayor's home. The AOA, in effect, established that the persons on that list did not have permission to enter on the Mayor's property. On January 4, 2017, acting on the basis of the list prepared by Reynolds and submitted to him, the Mayor signed the AOA for his personal residence. F. The Escort List at City Hall An "Escort List" predating the events described above and pre-existing this Mayoral Administration existed at City Hall. The list was for the use of police officers providing security within City Hall. It consisted of identifying information regarding individuals, most of them former City employees, known or observed by law enforcement or City employees to have the 16 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 17 of 86 PageID 4921 potential for disruptive conduct if in the building. After the Mayor executed the AOA for his personal residence, his Chief of Security, Lt. Albert Bonner, added the persons listed on that AOA to the City Hall List. Lt. Bonner's objective was to ensure that if any of the people who trespassed at the Mayor's home came to City Hall, and attempted access to the Office of the Mayor, the City Hall security team would be on notice of the potential for disruption. 3 Shortly after the Die-In, a group of protesters, without obtaining a permit, handcuffed themselves to 55-gallon drums filled with cement and blocked the entrance to the Valero Oil terminal in Southwest Memphis. Twelve people were arrested. One day after the Valero Protest, the names of the persons arrested at Valero were also added to the City Hall List. Despite their presence on the Escort/AOA list, with the exception of one activist briefly escorted out of City Council Chambers and questioned after being reported to have commented in a City Council meeting about what would happen if he brought a gun into City Hall none of the persons listed on the Mayor's AOA or the Valero arrestees were ever subjected to an escort while entering City Hall.4 On March 1, 2017, after two lawsuits were filed against the City related to the City Hall List, the City removed the names of the persons listed on the AOA for the Mayor's home from the Escort List as well the names of the persons arrested at the Valero Terminal. G. The City does not engage in "political intelligence" of lawful conduct for the purpose of intimidation or harassment. The City has not engaged in "political intelligence" as it is defined in the Consent Decree 3 The City has acknowledged that in retrospect, the inclusion of this list with the already existing escort list was a mistake in judgment. 4 Fergus Nolan was removed from City Council chambers after being reported to have made a statement about having a gun. He was later allowed to return to the City Council chamber, but was escorted by security. It should be noted that he was listed on the AOA at the time, and he was initially granted entry into City Hall unescorted. Only after he was alleged to have made the statement about the gun was he escorted. 17 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 18 of 86 PageID 4922 since 1979. Implicit in the Kendrick Consent Decree's definition of "political intelligence" is a malicious intent to harass and intimidate persons advocating unpopular political views. There is no evidence that the City engaged in political intelligence for the purpose of intimidation or harassment of any person or group, and uncontroverted testimony to the contrary demonstrates otherwise. Here, the Kendrick Consent Decree's prohibition against "political intelligence" should be interpreted to prohibit the gathering, indexing, filing, maintenance, storage or dissemination of information, or any other investigative activity, relating to any person's beliefs, opinions, associations or other lawful exercise of First Amendment Rights for the purpose of intimidation or harassment of that person or group and because of their beliefs, not a for legitimate public safety purposes. There is no credible evidence that the City engaged in political intelligence for the purpose of intimidation or harassment. To the extent that the City has engaged in intelligence gathering related to lawful First Amendment activities, including monitoring of social media, it has been for the express purposes of public safety, officer safety, and protestor safety, which is an entirely permissible function of a modern day law enforcement agency. To the extent that the Intervening Plaintiff contends that Section H of the Decree restricts the collection and dissemination of personal information "about any person" to an investigation of "criminal conduct" -- whether specifically authorized by the Director or not -- and especially since this part of the Decree does not even require that the restriction pertain to the "lawful" exercise of First Amendment rights, this provision is impossible to follow in the world of modern law enforcement. The necessity to apply context and proportion to such stand-alone provisions of the Decree demonstrate why the Intervening Plaintiff's "literalist" approach to the Decree is 18 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 19 of 86 PageID 4923 unworkable. H. Investigations into criminal conduct do not violate the Consent Decree, nor does law enforcement's viewing of social media posts. The OHS and Real Time Crime Center primarily focused their efforts during the time relevant to this matter on unlawful, unpermitted protests. The vast majority of events for which OHS attempted to gather information involved events being staged without the benefit and protections of a permit. It was, therefore, incumbent on OHS to gather enough information about these events for MPD to staff and support the event accordingly. In an effort to identify future events with the potential for unlawful conduct, and for that purpose alone, OHS monitored the social media activities of persons present at protests at which unlawful conduct actually occurred, and where arrests were made, such as traffic disruption leading to the "Greensward" arrests, the Bridge shutdown, the Graceland August 2016 protest, the Valero refinery protest, and those suspected of being involved in or facilitating the Die In at the Mayor's home. This included police presence at these events. Even permitted (lawful) events sometimes warranted monitoring and observation if they had the potential, as some did, of spiraling out of control. The confluence of permitted events for an event featuring white supremicists commemorating the birthday of Nathan Bedford Forest and a gathering of activists at Fed Ex Forum on July 10, 2016 commemorating the death of an African American man following an encounter with the MPD is a reminder of the potential volatility of protest activity in modern times. Fueled by "real time" social media posts, the MPD was legitimately concerned that these groups might come into contact, leading to violent confrontation. The eventual morphing of the Fed Ex Forum event into the Bridge incident demonstrates the importance, in fact the necessity, of proactive policing under these circumstances. The preparation and implementation of the AOA at the Mayor's home did not violate the 19 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 20 of 86 PageID 4924 Consent Decree even under the Intervening Plaintiff's interpretation of the Consent Order because it was the product of a criminal investigation directed by the Director of Police into unlawful conduct at the Mayor's home. I. Any intelligence-gathering by MPD was reasonable under the circumstances. A person has no legitimate expectation of privacy in something he posts publicly on social media. See United States v. Meregildo, 883 F. Supp.2d 523, 526 (S.D.N.Y. 2012) (reasoning that the "legitimate expectation of privacy ended when he disseminated posts to his 'friends'" because those "friends" were free to share that information "with the Government.") J. The law in this Circuit has been clarified since the 1978 Consent Decree that surveillance alone does not constitute an injury. In 1983, the Sixth Circuit definitively held that police surveillance is not necessarily constitutionally infirm, even if the focus of that investigation was directed at particular sociopolitical groups exercising their First Amendment rights. Gordon v. Warren Consol. Bd. of Educ., 706 F.2d 778, 781 (6th Cir. 1983). In a footnote, the Court clarified its position on surveillance that targets First Amendment activity. We find no support for plaintiff's suggestion that an undercover investigation is necessarily constitutionally infirm because the focus of that investigation was directed to classes where particular socio-political views were espoused. Courts have recognized that physical surveillance consistent with Fourth Amendment protections in connection with a good faith law enforcement investigation does not violate First Amendment rights, even though it may be directed at communicative or associative activities. Id. at 781 n.3 (emphasis added) (internal citations omitted). The Sixth Circuit has also held that surveillance in and of itself is not an injury capable of redress. See Sinclair v. Schriber, 916 F.2d 1109, 1115 (6th Cir. 1990) (finding that FBI's wiretapping of the Plaintiffs' phone lines did not constitute an injury for purposes of standing). See also Ghandi v. Police Dept. of City of Detroit, 747 F.2d 338, 347 (6th Cir.1984) (plaintiffs 20 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 21 of 86 PageID 4925 who assert that their constitutional rights were chilled by government activity must allege more than mere surveillance; they must make reference to specific instances of misconduct beyond surveillance); Am. Civil Liberties Union v. Nat'l Sec. Agency, 493 F.3d 644, 661 (6th Cir. 2007) ("[T]o allege a sufficient injury under the First Amendment, a plaintiff must establish that he or she is regulated, constrained, or compelled directly by the government's actions, instead of by his or her own subjective chill.") The 1978 Kendrick Consent Decree's prohibition against "political intelligence" should be read in a manner consistent with current Sixth Circuit law. If the Consent Decree is interpreted in light of the current federal law—i.e., that government surveillance that touches upon First Amendment activities must have an objective rather than a subjective chilling effect on a person's speech to be actionable; and because there is no evidence that the City conducted its surveillance of anyone relevant to this action in bad faith; or that the City's surveillance activities had an objective chilling effect on anyone's speech—the City should not be found in contempt of the Consent Decree. V. 1. STIPULATED FACTS On September 14, 1976, Chan Kendrick and several individuals who alleged that they were the subjects of unlawful surveillance by the Memphis Police Department's ("MPD") Domestic Intelligence Unit filed a federal court lawsuit against the City of Memphis and its then Mayor. (ECF No. 33-1, PageID 381). The Kendrick plaintiffs alleged that the City and the MPD created the Domestic Intelligence Unit to investigate and maintain files on "subversive" citizens. (ECF No. 33-1, PageIDs 385-87). The Complaint also alleged the defendants burned the files after they were discovered and brought to the attention of local authorities rather than turning them over to the court. (ECF No. 33-1, Page Ids 387). 21 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 22 of 86 2. PageID 4926 The Kendrick complaint explained the nature of each party and its relevance to the action in a section titled "PARTIES." Chan Kendrick was listed as "the Executive Director of the American Civil Liberties Union of Tennessee, Inc." who alleged that he was the subject of unlawful surveillance by the Memphis Police Department's Domestic Intelligence Unit. (ECF No. 33-1, PageID 382). Mike Honey was listed as the "Southern Director of the National Committee Against Repressive Legislation," and he, too, alleged that he was the subject of unlawful surveillance by the Domestic Intelligence Unit. (ECF No. 33-1, PageID 382). 3. The next party listed in the "PARTIES" section was "The American Civil Liberties Union of West Tennessee, Inc. ("WTCLU") is a Chapter of the American Civil Liberties Union of Tennessee, Inc., which is an affiliate of the American Civil Liberties Union." (ECF No. 33-1, PageID 382). 4. The Complaint states that the “West Tennessee Chapter is comprised of approximately five hundred members residing in the Western District of Tennessee." (ECF No. 33-1, PageIDs 381-82). 5. The complaint states that “the WTCLU alleges that it has been the subject of unlawful surveillance by the Memphis Police Department ‘Domestic Intelligence Unit.’” (ECF No. 33-1, PageIDs 382). 6. The Kendrick complaint also explained that plaintiff Chan Kendrick, “individually and in official capacity as Executive Director of the American Civil Liberties Union of Tennessee, and plaintiff WTCLU, requested that the defendants not destroy, alter or disseminate any of the files maintained by the Domestic Intelligence Unit." (ECF No. 33-1, PageIDs 387). 7. On September 14, 1978, the City and a limited number of the plaintiffs agreed 22 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 23 of 86 PageID 4927 upon a settlement memorialized in a consent "Order, Judgment, and Decree." (ECF No. 9-1, PageID 48). The plaintiffs who were listed as parties on the Kendrick Consent Decree included the following: "Chan Kendrick, Mike Honey, and the American Civil Liberties Union in West Tennessee, Inc." The National Committee Against Repressive Legislation was not a party to the Consent Decree. (ECF No. 9-1). 8. The American Civil Liberties Union was not a party to the Consent Decree, and the Consent Decree does not mention the ACLU-TN. (ECF No. 9-1). 9. On April 18, 1967, West Tennessee Civil Liberties Union, Inc. ("WTCLU") filed formation papers with the State. (Doc. 22-2, PageID 299). According to its Charter, WTCLU was granted the power "[t]o sue and be sued by the corporate name." (Doc. 33-6, PageIDs 41315). The Charter also states that the purpose of the WTCLU "shall be to further the objectives of the American Civil Liberties Union and to advance the cause of civil liberties in the State of Tennessee." (Doc. 33-6, PageID 413). The WTCLU's charter does not say that its purpose was to further the objectives of the ACLU-TN. See Id. 10. ACLU-TN did not exist at the time WTCLU was chartered in 1967. (Doc. 22-3, PageIDs 300-01). 11. On September 18, 1968, ACLU-TN filed formation papers with the State. (Doc. 22-3, PageIDs 300-01). According to its Charter, ACLU-TN was formed, in relevant part, "for the purpose of (1) consolidating the affairs and activities of the previously existing East Tennessee Civil Liberties Union, Inc., and Middle Tennessee Civil Liberties Union, Inc., and continuing the previous operations of said corporations," and (2) [t]o also absorb at a future time, if agreed to by the membership and/or Board of Directors of both corporations, to assume and continue the operations of the West Tennessee Civil Liberties, Inc., a Tennessee corporation." 23 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 24 of 86 PageID 4928 (Doc. 33-4, PageID 405). 12. On March 17, 1983, the West Tennessee Civil Liberties Union, Inc. was dissolved as a corporate entity with the State of Tennessee. (Doc. 22-2, PageID 299). 13. On December 11, 1987, the "Memphis field Office" of ACLU of Tennessee was closed because the budget was inadequate to support it. (ACLU 000211-12; ACLU 000302). 14. In 1988 there was some effort to "reorganize and revitalize" the West Tennessee Chapter. On February 1, 1988, ACLU-TN sent a letter to "Members and Friends" inviting them to the February 11, 1988 West Tennessee Chapter meeting stating: "The West Tennessee Chapter is at a crossroad…. Your chapter board of directors is in a state of reorganization and revitalization." (ACLU 000301). In a letter to "West Tennessee Chapter Board of Directors and Other Interested ACLU Members," the ACLU-TN invited the WTCLU Directors to a June 2 meeting. The purpose of the June 2 meeting was to discuss the "[e]xciting plans [that were] underway to revitalize the West Tennessee Chapter." (ACLU 000298-99). The ACLU-TN followed up that June 2, 1988 meeting in a Memorandum that discussed the need to have a "successful annual meeting" as the "first step in the reorganization and revitalization of the West Tennessee Chapter." (ACLU 000296-97). 15. Around March 1991, another attempt was made to reorganize the West Tennessee Chapter. In a letter to Bruce Kramer from Hedy Weinberg dated March 11, 1991, Ms. Weinberg outlined the necessary steps to reinstate the West Tennessee Chapter. Those steps included identifying an interim chapter board, organizing a local legal committee, planning a public education forum, and designating a chapter president and chapter representatives. (ACLU 000276-77). On March 14, 1991, ACLU held a "West Tennessee Chapter Reorganization Meeting." The Agenda for the meeting actually discussed the nature of the 24 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 25 of 86 PageID 4929 "National/State/Chapter Relationships." (ACLU 000278). 16. ACLU TN Executive Director Hedy Weinberg made another attempt to revitalize the Memphis chapter from July 1994 - March 1995. On July 27, 1994, Ms. Weinberg sent a letter to a new member of ACLU-TN who lived in Memphis. In the letter, Ms. Weinberg stated: "I am delighted in your interest in becoming involved in the Memphis area. We hope to revitalize our Memphis Chapter in the fall and I will contact you when an organizing meeting is planned." (ACLU 000236). On September 20, 1994, Ms. Weinberg received a letter from an attorney who stated: "I am excited to be a part of the coming together of what hopefully will be a new chapter of the ACLU for Memphis and greater West Tennessee." (ACLU 000239). Throughout the remainder of 1994, Ms. Weinberg attempted to "revitalize" the Memphis Chapter of ACLU-TN. In several documents she stated that she wanted "to get things going again in Memphis" (ACLU 000241); wanted to "revitalize the Memphis chapter" (ACLU 000242); and she was looking forward to working "in the future with the Memphis Chapter of the ACLU." (ACLU 000243-44). 17. Other individuals also attempted to revitalize the Memphis chapter in 1995, but that effort failed. In January 1995, a group of individuals met "to organize our kick-off gathering" of the new West Tennessee Chapter of ACLU-TN. (ACLU 000245-46). In that letter, the honorable Sheri (now United States District Court Judge) Lipman explained that she was "extremely hopeful that we can get a core group of people, including those previously involved and new to the organization, who will serve as a base for the chapter for many years. There is no reason Memphis can't support a chapter." (ACLU 000246). The planned kick-off event never took place. On March 9, 1995, Judge Lipman sent another letter explaining that the "kick-off event will not take place on March 12, 1995." (ACLU 000249). She urged the group 25 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 26 of 86 PageID 4930 "not [to] let the delay in getting this off the ground affect anyone's excitement. I am very hopeful that we will be able to build a strong chapter here in Memphis, with quality programming for the entire community. " See Id. 18. In May 1996, a West Tennessee Chapter was re-formed. (See ACLU000252). 19. ACLU-TN currently has no chapters. (See Dep. of ACLU-TN's Corporate Representative at 39:5 (April 30, 2018). 20. On September 14, 1978, the City and the remaining plaintiffs agreed upon a settlement memorialized in a consent "Order, Judgment, and Decree." (ECF No. 3, PageID 16) ("Consent Decree"). The Consent Decree prohibited the City from engaging in "Political Intelligence," which is a defined term, as is the term "First Amendment rights" contained therein. (ECF No. 3, PageIDs 16-17). 21. The Consent Decree contains several other provisions limiting the City and MPD's authority to investigate or gather intelligence when "First Amendment rights" are implicated. (ECF No. 3). 22. The provisions of the Consent Decree have been posted since 2010 on the internal police website known as the Kiosk. (Affidavit of Larry Godwin; Rallings Depo. Ex. 49). The provisions of the Consent Decree were adopted as Memphis Police Department Regulation 138 on December 20, 2010. (Rallings Depo Ex. 54; Affidavit of Larry Godwin). 23. Since 1979, until the present litigation, no person entitled to assert rights under the Decree brought a court action seeking its enforcement, other than activity related to attorneys' fees stemming from the original action. (See also Docket Report for Case 2:76-cv-00449). 24. In October 2014, the City purchased proprietary social media collator software which enabled the MPD's Real Time Crime Center ("RTCC") to monitor open source social 26 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 27 of 86 PageID 4931 media posts using sophisticated search protocols. 25. Two MPD employees presently work in the OHS, Sgts. Reynolds and Cornwell. (Depo. Reynolds at p. 16). These individuals have been trained to gather intelligence relating to large public gatherings, threats to large crowds, national trends and "threat mitigation." (Depo. Reynolds at pp. 17-18). 26. In October 2014, the MPD purchased and through its Real Time Crime Center ("RTCC") used proprietary software referred to as a social media collator, including Geofeedia and NC4, which enabled monitoring of open source data or “chatter” regarding protest events across social media platforms. (Wilburn Dep. 24-25.) 27. RTCC officers conducted manual searches of social media accounts such as Facebook. (Wilburn Dep. 27-28.) 28. RTCC officers documented its investigative work by creating a folder on the server for each investigation (named by subject). (Wilburn Dep. 21, 24-25). 29. In 2015 and 2016 the MPD, Office of Homeland Security ("OHS") was "retool[ed]" to focus on threats to law enforcement safety. (Chandler Depo. at pp. 14-15; Reynolds Depo. at pp. 14-15; 153). The mission of OHS was and is "identifying threats and trying to help [ ] mitigate those threats." (Rallings Depo. at p. 91). 30. On July 17, 2015, Darrius Stewart died in a confrontation with a Memphis Police Officer. Beginning in June 2016 Joint Intelligence Briefings, circulated between one and three times per day, were reports prepared by OHS that included national news stories regarding police involved shootings presented alongside local criminal activities, photographs and profiles of individuals, and lists of events. (Exh. E: Chandler Dep. Exh. 59.) 31. Within MPD, the JIB was circulated to Executive and Command Staff, Colonels, 27 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 28 of 86 PageID 4932 Special Ops, Special Services, Lt. Colonels, Investigative Services Command, Precinct – Traffic COs, RTCC, MPD Training Academy, Communications Supervisors, and the Public Information Office. (Exh. G: Reynolds, Exh. 14.) 32. The JIBs were also circulated, for a brief time, outside of MPD to employees of: Shelby County Sheriff, U.S. Military, U.S. Department of Justice, Tennessee Department of Homeland Security, Arkansas Fusion Centers, Shelby County, Germantown, West Memphis, Memphis Light, Gas, & Water, Tennessee Valley Authority, Shelby County Schools, FedEx, AutoZone, and St. Jude. (Exh. G; Exh. H: Reynolds Dep. Exh. 18; Exh. I: Oct. 4, 2016 E-mail; Reynolds Dep. 54-55, 63.) 33. JIBs were forwarded beyond this initial circulation list. (See e.g. Exh. I; Exh. J: Reynolds Dep. Exh. 12.) 34. JIBs were regularly circulated between June 2016 and March 2017. 35. In 2016 Director Rallings instructed OHS to create and maintain a database of protests, demonstrations, and flash mobs (“Database”). (Rallings Dep. 54; Exh. P: Reynolds Dep. Exh. 8.) 36. On August 15, 2016, an unpermitted protest organized by the Coalition for Concerned Citizens (CCC") occurred at Graceland during the heavily attended "Elvis Week" Candlelight Vigil. 37. None of the persons listed on the Mayor's AOA or even the arrestees from the Valero protest have ever been subject to an escort through City Hall, despite their names being on the Escort List for a brief time. (Bonner Depo at pp. 56-57). For example, Ian Jeffries, who was on the AOA/Escort List, attended a City Council meeting without an escort on January 17, 2017. (Bonner Depo Ex. 5; Depo. Rallings at pp. 71, 104). 28 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 29 of 86 38. PageID 4933 One of the purposes behind the creation of The United States Department of Homeland Security was to form partnerships among law enforcement to prevent terrorist attacks against the United States.5 A critical part of those partnerships was the Joint Terrorism Task Forces.6 MPD participates in the Joint Terrorism Task Force, along with over 500 other state, federal, and local law enforcement agencies. Id., and Godwin Affidavit. 39. On July 10, 2016, a BLM protest in Memphis, Tennessee that started at the FedEx Forum resulted in several hundred protestors moving to and shutting down the Interstate 40 Bridge over the Mississippi River for approximately four hours. Then Interim Police Director Michael Rallings marched with the protestors off the bridge to the National Civil Rights Museum. (Id.; Rallings Depo. at 108-109). 40. In the early morning hours of December 19, 2016, the Coalition of Concerned Citizens ("CCC") and Keedran Franklin staged a protest, known as a "Die-In", on the front lawn of Mayor Jim Strickland's residence. (SUF, Plaintiff, ECF 107-2). The protestors" played dead" on the lawn, and were recorded by Mr. Franklin peering through the Mayor's windows. Mr. Franklin livestreamed the incident on Facebook. Id. In that post, Franklin stated that he would be back every Monday "to have coffee with Jim [Strickland]." (Reynolds Depo. 120). The CCC parroted the "coffee with the Mayor" Franklin message. (Bates Label City of Memphis 19806-19811 41. Detective Reynolds included open source social media posts involving the CCC as part of that investigation in an attempt to identify individuals who may have been involved with the incident. (Depo. Reynolds at p. 117; 119-120). 5 6 https://www.dhs.gov/topic/law-enforcement-partnerships https://www.fbi.gov/investigate/terrorism/joint-terrorism-task-forces 29 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 30 of 86 42. PageID 4934 Detective Reynolds in the OHS, recommended that the Mayor execute an Authorization of Agency ("AOA") for the Mayor's home. (Reynolds Depo. at p. 121). 43. An AOA is an internal police form that notifies officers of known criminal trespassers on a specific property. The purpose of an AOA is to empower the police to arrest the persons listed on the AOA should they trespass again on that property without having to notify the property owner. A person included on an AOA should receive notice of their inclusion on the AOA. (Bonner Depo. at pp. 15-17). 44. Detective Reynolds obtained the names for the AOA list from open source social media contacts of Franklin and the CCC, as well as looking up the identities of individuals arrested along with Franklin in the past. (Reynolds Depo at p. 122). Reynolds' list included persons that had either attended, publicly supported, or encouraged certain unpermitted, protests, including the Graceland protest. (Depo Reynolds at pp. 122-123). 45. Detective Reynolds "populated" the list into the AOA for the Mayor's home. (Reynolds Depo at pp. 122; 125-126). 46. An "Escort List" pre-dating the current administration was for the use of police officers providing security at City Hall. It consisted of identifying information regarding certain former City employees or individuals known or observed by law enforcement or City employees to have engaged in disruptive conduct or who had expressed a willingness to commit disruptive acts while in City Hall. Once a person's name was on that City Hall Escort List, that person is allowed to enter City Hall, but that person must identify where they are going and who they intend to see. They might require an escort while in the building. (Bonner Depo. at pp. 17-19). 47. The Mayor executed the AOA for his personal residence on January 4, 2017. Lt. Bonner added the persons on the AOA to the pre-existing City Hall Escort List. 30 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 31 of 86 48. PageID 4935 On January 16, 2017, several individuals handcuffed themselves to 55-gallon drums filled with cement and blocked the entrance to the Valero Oil terminal in Memphis. Twelve people were arrested. 49. On January 17, 2017, one day after the Valero Protest, the names of the persons arrested at Valero were added to the AOA list used by Lt. Bonner at City Hall. (Bonner Depo Ex. 1, pp. 9-10). 50. On March 1, 2017, after two lawsuits were filed against the City related to the Escort List, the City removed the names of the persons listed on the AOA for the Mayor's home and the names of the persons arrested at the Valero Terminal from the City Hall Escort List. VI. CONTESTED (OR UNSTIPULATED) ISSUES OF FACT According to Plaintiff: 1. Sergeant Tim Reynolds of OHS drafted the AOA but did not limit it to individuals who were present at the Mayor’s residence on December 19, 2016. (Reynolds Dep. 122, 125-26; Rallings Dep. 67-68.) 2. Reynolds populated the list with individuals who he termed “associates in fact,” who were individuals that “may have something to do with either Keedran Franklin or the CCC” as determined by “social media contacts,” “previously arrested with,” “often seen at unlawful assemblies with.” (Reynolds Dep. 122, 125-26; Rallings Dep. 67-68.) 3. In support of the AOAs, Reynolds prepared dossiers for the listed individuals and sent them to Albert Bonner, who instructed that they be printed and kept in a folder where officers could familiarize themselves with the list. (Bonner Dep. 9, 33-35; Exh. C: Bonner Dep. Exhs. 23; Reynolds Dep. 25; Exh. C, at 20796. 4. After the AOA list became public, and in an effort to “pare the list down,” Reynolds 31 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 32 of 86 PageID 4936 generated an additional list that provided explanations for individuals who were to remain on the list. (Exh. D: Bonner Dep. Exh. 4; Reynolds 128.) 5. OHS was “originally designed to deal with threats to the Memphis Police Department or Memphis in general,” but that it had to “retool due to recent events” — such as “protests against the police” and threats against the police — and that, OHS began to focus on “local individuals or groups that were staging protests.” (Chandler 14-15.) 6. The four categories of information that were to be incorporated into a JIB, according to Chandler, were: (1) Police Shootings/deaths; (2) Riots/protests; (3) Black Lives Matter (BLM); (4) Officer Safety. (Exh. E: Chandler Dep. Exh. 59.) 7. JIBS served as “a regional guide to area law enforcement for current and historical intel in reference to the BLM encounters” that law enforcement had been “challenged to mitigate.” (Exh. F: Bass Dep. Exh. 80; Bass Dep. 55-56.) 8. JIBs initially focused on protests “that were popping up around the city” but as time progressed, OHS began “looking at more national events as opposed to anything else, how it had implications for Memphis Police Department,” targeting “any of the organizations that arose out of Ferguson,” and specifically, “Black Lives Matter” and “Take them Down 911 [sic].” Groups described in paragraph 14 had “made no direct threat” in Memphis. (Chandler Dep. 23-24.) The JIB from July 15, 2016 1600 hours included: a report on the rumored “Day of Rage” protests, information regarding public protests, copies of permits filed for protest events (and the status of those permits), information about an event on private property, a social media post about an individual who posted about a potential protest action and subsequent retraction, a complaint filed by Frank Gibson alleging harassment. (Exh. H.) 9. From July 9 to July 15, there were “no specific threats to law enforcement on social 32 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 33 of 86 PageID 4937 media.” (Exh. H.) 10. JIBs regularly included information about meetings on private property; these included panel discussions, townhalls, BLM Meetings for adults and those for youth, and even “Black Owned Food Truck Sunday.” (See, e.g. Exhs. G, H; Exh. L: February 8, 2017 0800 JIB.) 11. JIBs regularly included photographs of and information about those involved in protest movements and those who posted about the possibility of protest action. (See, e.g. Exh. G, Exh. M: August 11 2016 1600 JIB; Exh. N: Reynolds Dep. Exh. 15.) 12. JIBs included “Sensitive/Classified” information, such as drivers’ license profiles, juvenile arrest records, photographs, dates of birth, addresses, mental health histories, and information from police databases. (Exhs. G, H, I, J, K, L, M.) 13. Information that is personal in nature (address, social security numbers, drivers license information, etc.) or taken from police databases is defined as “Sensitive/Classified Media” pursuant to the CJIS Media Policy. (Exh. O.) 14. JIBs were regularly circulated between June 2016 and March 2017. 15. Rallings instructed OHS to create and maintain a database of protests, demonstrations, and flash mobs (“Database”). (Rallings Dep. 54; Exh. P: Reynolds Dep. Exh. 8.) 16. The Database spanned 2016 and 2017, and OHS began keeping the Database in the course of its work in December 2016. (Reynolds Dep. 27-28.) 17. The Database tracked the name, date, and crowd size of events, the “Group” responsible, “Key Personnel,” Arrests, “Techniques,” “Critical Infrastructure,” and “Damage.” (Exh. P.) 18. The Database tracked gatherings as small as four individuals and recorded only two events resulting in any arrests and no events resulting in damage. (Exh. P.) 33 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 34 of 86 19. PageID 4938 It was “very rare” that “protests, permitted or unpermitted, or gatherings that responded in any issue where law enforcement had to do anything other than just kind of be there to keep everybody safe.” (Rallings Dep. 54-56.) 20. OHS prepared and presented Power Point presentations regarding activists and protest groups that were given at the training academy and at weekly meetings for Command Staff. (Bass Dep. 21; Reynolds Dep. 98-99.) 21. Blue Suede Shoes was one such presentation. (Exh. Q: Reynolds Dep. Exh. 25.) 22. The presentation included activist photographs and arrest information; it describes alleged associations and personal relationships between protestors, including individuals who were not arrested at the protests in question. (Exh. Q.) 23. All Shook Up was another representative presentation, dated January 8. 2017. (Exh. R: Reynolds Dep. Exh. 26.) 24. The presentation outlined individuals who had been previously arrested, associates of those individuals, and a summary of the beliefs of the organization. (Exh. R.) 25. RTCC officers monitor live feeds of cameras, which include fixed, mobile, drone, covert, and overt types that have been used to surveil protest activity in the City. (Chandler Dep. 29; Patty Dep. 6-26, 34; Wilburn Dep. 25.) 26. RTCC officers used software referred to as a social media collator, including Geofeedia and NC4, which enabled monitoring of open source data or “chatter” regarding protest events across social media platforms. (Wilburn Dep. 24-25.) 27. RTCC officers conducted manual searches of social media accounts such as Facebook. (Wilburn Dep. 27-28.) 28. As part of their duties, RTCC officers conducted social media monitoring of 34 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 35 of 86 PageID 4939 protests or potential protests and reported the results of their monitoring to OHS. (Bass Dep. 5859; see also Exh. S: Ross Dep. Exh. 65.) 29. In a representative example, Bradley Wilburn, an officer with RTCC reported to the OHS team regarding a “particular feed” he “set up to monitor MemphisPD.” (Exh. T: Wilburn Dep. Exh. 82.) 30. RTCC collected and circulated a broad swath of social media posts related to Black Lives Matter (Exh. V: Memphis 3701-02; Exh. W: Memphis 4376-77; Wilburn Dep. 40-41.) 31. RTCC officers documented its investigative work by creating a folder on the server for each investigation (named by subject). (Wilburn Dep. 21, 24-25) 32. RTCC officers referenced previous investigations in the course of investigations and used JIBs as a basis to initiate investigations into background information. (Wilburn Dep. 21, 24-25) 33. MPD has accessed private social media accounts through at least one covert social media account using the pseudonym “Bob Smith.” (See Reynolds Dep. 90-98; Exh. X: Bonner Exh. 6; Exh. Y: Reynolds Exh. 24; Exh. Z: ACLU 562-91; Exh. AA: Memphis 9442-44; Exh. BB: Memphis 10457-59; Exh. CC: Memphis 9316-20.) 34. Available documents indicate that someone within MPD not only had access to the Bob Smith account, but used it to communicate with individuals, to view private posts, join private groups, and otherwise to pose as a member of the activist community. (Id.) 35. From publicly available information, the “Bob Smith” Facebook account has been actively adding friends from the Memphis community from July 2015 to April 2018. (Exh. Z at 577, 591.) 36. OHS disseminated information to precinct commanders who typically developed 35 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 36 of 86 PageID 4940 the operational response to events occurring within their precincts. (Chandler Dep. 38.) 37. OHS made sure that protest events were staffed with officers “be it a uniform presence or somebody that was in a plain clothes presence.” (Chandler Dep. 48-49.) 38. At the Commercial Appeal protest that occurred on July 13, 2016. Keith Watson, Acting-Lieutenant Colonel of Uniform Division II, North Main Station, and provided regular updates to MPD Executive Staff, Command Staff, Colonels, and Lt. Colonels throughout the event regarding the identities of those in attendance, crowd size, content of the announcements made, and photographs of the event. (Exh. SS: Bass Dep. Exh. 77.) 39. Watson’s communication at the Commercial Appeal event was typical or regular communication of information from commanders back to OHS. (Bass Dep. 47-50.) 40. Plain clothes officers took photographs of the crowd at protest events to identify participants that were there. (Chandler Dep. 47-48; Exh. GG: Chandler Dep. Exh. 63.) 41. Plain clothes officers were used to gather intelligence on protestors. (Exh. DD at 2394; Bass Dep. 52; Exh. HH: Bass Dep. Exh. 78.) 42. MPD conducted surveillance of private events. (Exh. JJ: Bass Dep. Exh. 76.) 43. In response to a Facebook post by Frank Gibson, Col. Mickey Williams, the Raines Station Commander, surveilled a church the next morning and reported back the number of vehicles present and information about the church’s pastor, despite being advised by Bass that the event posed no threat. (Exh. JJ: Bass Dep. Exh. 76.) 44. Bass testified that this was a typical type of communication he would have with precinct commanders and their response to it. (Bass Dep. 46-47.) 45. Col. Marcus Worthy, the commander of Ridgeway Station, covertly surveilled a memorial service for Darrius Stewart at New Direction Church from across the street and provided 36 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 37 of 86 PageID 4941 status reports and identifying individuals in the crowd. (Exh. KK: Chandler Dep. Exh. 60.) 46. Reynolds obtained an undercover cell phone from the Organized Crime Unit to contact activists; Reynolds used the number to contact Spencer Kaaz and to enter the cell phone’s number into an online form for updates on an Elvis Week protest. (Exh. LL: Reynolds Dep. Exh. 32.) 47. Reynolds requested that an OCU officer be sent to a “civil disobedience training” that he had learned about through the undercover phone number. (Exh. MM: Reynolds Dep. Exh. 33.) 48. MPD officers regularly contacted individuals who were organizing free speech events. (Exh. HH.) 49. In the case of a community meeting at New Life in Christ Church, Bass instructed OHS officers to “[m]ake inquiries and find out the event organizer, contact number and what is on the agenda. 50. Chandler spoke with a Bishop of the New Life in Christ Church who assured him that the purpose of the event was not to disparage law enforcement, that it would be a “pro-police dialogue.,” (Exh. HH.) 51. Staff of the Memphis Permit Office were instructed to record all anonymous calls asking about protest permits. (Exh. NN: Howard Dep. Exh. 71.) 52. Protest events were held to a strict adherence to the 14-day notice requirement, that requirement was not enforced for non-protest events. (Exh. OO: Jan. 19, 2017 E-mail.) 53. Protest permit applications were circulated to Command Staff or OHS, while non- protest permit applications were circulated only to Special Events. (Howard Dep. 24-25, 39-40.) 54. One of the tools available to RTCC officers and analysts is the i2 Analyst’s 37 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 38 of 86 PageID 4942 Notebook, “program that can help correlate certain events” and, upon inputting large amounts of data can help a user “determine correlations.” (Wilburn Dep. 46-47.) 55. In 2016, a RTCC officer used the i2 Analyst’s Notebook, along with social media data and a police database, to create a map of associations between individuals and events entitled “Black Lives Matter.” The map included certain members of the AOA, a BLM Bridge Protest, Town Hall Meeting, and Protest, and a Back to School Community Carnival. (Exh. PP: Sept. 19, 2017 E-mail.) 56. Rallings and Reynolds were informed about the Decree in the course of their employment. (Rallings Dep. 28-29; Reynolds Dep. 139-40.) 57. Rallings has not conducted reviews and authorizations for criminal investigations as specified in Section G of the Decree or DR 138, its implementing policy. (Rallings Dep. 92-93; Exh. RR: Reynolds Exh. 30.) 58. The City violated Section C.1 of the Decree by collecting and disseminating information about individuals’ beliefs, opinions, associations, and exercise of First Amendment rights through the creation and dissemination of the City Hall Escort List and underlying Authorization of Agencies, the daily Joint Intelligence Briefings (JIB), and the weekly Power Point presentations featuring free speech events. 59. The City targeted individuals for investigation based on their “associations-in-fact,” their affiliations with protest groups, and their participation in free speech activities. 60. The City cataloged “Key Members” involved in protests to track the “pattern” of who attended unpermitted events, undertook broad-based investigations of individuals (both in person and electronically), and by utilized software to map associations between individuals based 38 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 39 of 86 PageID 4943 on their beliefs, opinions, and associations. 61. The City violated Section C.2 of the Decree by operating the Office of Homeland Security as an office dedicated to collecting and disseminating political intelligence. 62. The City violated Section E of the Decree by covertly surveilling individuals and groups engaged in free speech activities electronically through the covert Bob Smith account, by use of an undercover phone to gain access to private group communications, and on the ground by placing plain clothes and undercover officers at meetings and free speech events on public and private property. 63. The City violated Section F of the Decree by circulating personal and confidential information about individuals involved in the exercise of their free speech rights in the JIBs multiple times a day to both within MPD and outside of MPD to regional law enforcement and members of the community. 64. The City violated Section F of the Decree by regularly naming and photographing individuals exercising their First Amendment rights. 65. The City disseminated personal information in violation of Section H of the Decree. 66. The City exchanged political intelligence with other law enforcement agencies, not in the course of a lawful criminal investigation, in violation of Section K of the Decree. 67. The City discouraged the exercise of First Amendment rights by enforcing different standards for obtaining a permit for protests than other types of events. 68. The City chilled the exercise of First Amendment rights by aggressively contacting event organizers and questioning them regarding their agenda and their affiliations. 69. The City violated Section G of the Decree by failing to comply with the Decree’s 39 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 40 of 86 PageID 4944 requirements that the Director approve criminal investigation that necessitated the collection of political intelligence. Standing Facts 70. During its early years in operation, ACLU-TN was structured as a confederation of local chapters. 71. According to ACLU-TN’s 1972 By-laws, in effect at the time the Kendrick case was filed, “[c]hapters of the ACLU of Tennessee, Inc., may be chartered by the Board of Directors in areas where membership size and interest justify such organization.” 1973 By-Laws of the American Civil Liberties Union of Tennessee, Inc. Doc. No. 33-8, Page ID 425-26. [hereinafter “1973 By-Laws”], 72. Chapters are akin to a company establishing a local office to conduct its local affairs, while its headquarters manages the various offices around the state. 73. Chapters were part of the ACLU-TN and not separate legal entities. They were not corporations, formed under the laws of Tennessee or any other state, such as subsidiaries or affiliated corporate entities. The chapters operated entirely under the authority derived from the ACLU-TN By-laws. Id. 74. Chapters operated as local offices for ACLU-TN in particular regions of the state. By 1975, ACLU-TN was operating with six chapters: Middle Tennessee, West Tennessee, Oak Ridge Area, Knoxville, Franklin County, and Chattanooga. See ACLU-TN Board of Directors Minutes for the Meeting of October4, 1975, Doc. No. 33-9, Page ID 428. 75. The Chapters were given the “authority to direct and govern activities of the ACLU in their areas, subject to the policies and regulations of the ACLU of 40 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 41 of 86 PageID 4945 Tennessee, Inc.” 1973 By-Laws, Doc. No. 33-8, Page ID 425-26. Each Chapter’s president served as a member of the ACLU-TN’s Board. Additionally, each chapter was entitled to elect a member to the Board of Directors for every fifty members. Id. 76. Chapters were organized much like corporations, with by-laws, Boards of Directors and officers. However, an important distinction is that the chapters, including the West Tennessee Chapter, were not separate legal entities under state law. Instead they were formed and approved solely by ACLU-TN. “By-laws for any Chapter shall not go into effect unless they have been approved by the Board of Directors of the Affiliate.” Id. Likewise, the ACLU-TN could terminate a chapter “for cause by a two-thirds vote of the Board of Directors. Id. Chapters were required to submit programing proposals and a budget to ACLU-TN every year. Id. ACLU-TN also allocated funds to the chapters “as it deems appropriate.” Id. 77. ACLU-TN Board Minutes demonstrate that chapters where both integral to the operation of ACLU-TN and, definitively, a part of that organization. The earliest minutes available are from September 2, 1969, Chapters are already mentioned operating under the ACLU-TN. Minutes ACLU of Tennessee, Inc. September 2, 1969. 78. The minutes demonstrate that the Chapters were operating as local offices for the affiliate and were integral in encouraging local action and in raising funds. However, they were not separate corporations. 79. The October 4, 1975 minutes list the several members from differing chapters that were in attendance. See October 4, 1975 Minutes Doc. No. 33-9, Page 41 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 42 of 86 PageID 4946 ID 428. Notably, the West Tennessee Chapter is listed as attending. Later in the minutes, topics for a retreat are discussed, including “Chapter organization and day to day operation.” Id. at Agenda Item F. 80. In total, the Charter, By-Laws and historic minutes of ACLU-TN show that a West Tennessee Chapter of ACLU-TN was operating in 1976 as a part of ACLU-TN. It was not a separate corporation or other legal entity. 81. The West Tennessee Civil Liberties Union, Inc., like the other regional affiliates that were first created, was not operating in West Tennessee. 82. The promise of ACLU-TN’s Charter had been fulfilled and its operations had been “absorb[ed] at a future time.” See ACLU-TN Charter. According to Defendant: 1. At no time since the entry of the Consent Decree has the MPD engaged in "political intelligence" for the purpose of interfering with any person's or group's First Amendment rights. (Affidavit of former MPD Police Director Larry Godwin; Director Michael Rallings Depo. at pp. 107-113; Deposition of Major Lambert Ross at p. 77; Deposition of Major Stephen Chandler at p. 74; Deposition of Major Eddie Bass at pp. 67-68). 2. On August 9, 2014, Michael Brown was killed by a police officer in Ferguson, Missouri. Protests erupted and continued for the next several months, during which time business were looted or vandalized and dozens of people were arrested.7 On November 25, 2014, thousands of people rallied to protest the grand jury's decision in more than 170 U.S. cities, and National Guard forces were deployed and then reinforced at Ferguson to prevent the 7 http://www.cnn.com/2014/08/11/us/missouri-teen-shooting/; https://www.usatoday.com/story/news/nation/2014/11/24/ferguson-grand-jury-deliberations/19474907; https://www.nytimes.com/2014/11/26/us/ferguson-missouri-violence.html 42 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 43 of 86 PageID 4947 situation from escalating.8 3. On December 20, 2014, two New York City police officers were shot and killed by a gunman who had posted statements on social media that he planned to kill police officers and was angered about the Eric Garner and Michael Brown cases.9 4. In April 2015, three weeks after Freddie Gray died in police custody in Baltimore, peaceful protests turned violent including looting and arson.10 5. On July 17, 2015, Darrius Stewart died in a confrontation with a Memphis Police Officer.11 In the aftermath, the MPD received a number of threats to officers. (Depo. of Detective Tim Reynolds at p. 20). 6. In November 2015, five Black Lives Matters ("BLM") protestors were shot while protesting the officer-involved death of Jamar Clark in Minneapolis.12 7. On July 5, 2016, Alton Sterling was killed by police in Baton Rouge, Louisiana. 8. On July 6, 2016, Philandro Castille was killed by a Minnesota police officer 13 during a traffic stop. The incident was live streamed on Facebook by Castille's girlfriend.14 9. On July 7, 2016, five Dallas police officers were killed by a sniper at a Black Lives Matter protest in Dallas, Texas.15 10. On July 18, 2016, three Baton Rouge police officers were killed by Gavin Long, a 8 http://www.cnn.com/2014/11/25/us/national-ferguson-protests/ https://www.nytimes.com/2014/12/21/nyregion/two-police-officers-shot-in-their-patrol-car-in-brooklyn.html 10 https://www.cnn.com/2015/04/27/us/baltimore-riots-timeline/index.html 11 http://www.wmcactionnews5.com/story/29578116/man-dead-after-struggle-with-mpd-officer 12 https://www.nbcnews.com/news/us-news/jamar-clark-protests-5-shot-near-black-lives-matter-encampmentn468656 13 https://www.cnn.com/2017/05/03/us/alton-sterling-doj-death-investigation 14 https://www.npr.org/sections/thetwo-way/2016/07/07/485066807/police-stop-ends-in-black-mans-deathaftermath-is-livestreamed-online-video 15 https://www.nytimes.com/2016/07/09/us/dallas-police-shooting.html 9 43 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 44 of 86 PageID 4948 prolific user of social media, with dozens of videos, podcasts, tweets and posts using a pseudonym. Long advocated for "fighting back" instead of "just over simple protesting." 16 11. A core organizational tactic used by activists groups since 2014 has been highway shutdowns. 12. In Memphis, several activists used peaceful and for the most part lawful (permitted) protests of the Memphis Zoo's use of the Overton Park "Greensward" as a mechanism for disrupting traffic, including lying down in the roadway and essentially forcing the Memphis police officers present to arrest them. (Depo. Reynolds p. 109; Reynolds Depo. Ex. 25; Bates label 22816-19). Several other protesters did the same thing at an unpermitted protest during "Elvis Week" in August 2016. (Depo. Ex. 25, Bates Label 22805-22812). Modern day activist groups increasingly use social media as their primary platform for disseminating information about events they are planning.17 13. Threats have continued to be made through social media by certain individulas to disrupt, shut down, or otherwise interfere with commerce, traffic, or public safety in Memphis. For example, Frank Gibson, a person involved with the bridge shutdown on July 10, 2016, has threatened to return to the bridge to shut it down again. Other threats have been made to disrupt Graceland and other entities and events. (Rallings Depo. pp. 74-74). 14. The use of social media "collators" which is alleged to violate the Consent Decree has been no secret. A public access purchase order reflecting the purchase of the software is dated in October 2014 reflected the acquisition, and news reports surfaced about it in September 2016. The evidence in this case demonstrates that the use of social media collators, which gather 16 https://www.cnn.com/2016/07/17/us/baton-route-police-shooting/index.html https://www.cnn.com/interactive/2015/08/us/disruptors/; https://www.wired.com/2015/10/how-black-lives-matteruses-social-media-to-fight-the-power/ 17 44 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 45 of 86 PageID 4949 posts from open source social media postings, is primarily a tool of the MPD "Real Time Crime Center." See Reynolds Depo. p. 45. 15. The challenged use of a fake social media account ("Bob Smith") which has been referenced in this litigation arose from the monitoring activities of an OHS employee, Sgt. Reynolds, included, among other things, uncovering a plan to "hack" into the Memphis Zoo's computer database, and was used as well as part of an investigation into the creation of and establishment of a fake Twitter account purporting to be that of the Memphis Police Director. (ECR 115-2). One of the accounts monitored by "Bob Smith" was the "Coalition of Concerned Citizens" -- which the Intervening Plaintiff itself acknowledges "staged" a criminal trespass onto the Mayor's private property. See ECF 107-2, 115. 16. The main focus of MPD's Office of Homeland Security ("OHS") was "threats to the public" after 9/11, with the initial focus about "what was happening in the Middle East." (Depo. Reynolds at p. 19). The concern is now Las Vegas style police shootings, vehicles being driven into crowds, people carrying illegal bombs, whether domestic terrorism or part of a larger conspiracy." (Depo Rallings at 20). 17. July through December 2016 "was a very bad year for officer threats, police involved shootings and demonstrations." (Depo. Reynolds at p. 22). Even if individuals obtain a permit for a protest, "there are still things that can happen to these people that we would be responsible for, like someone gets shot." These concerns were quite real for the MPD during this time frame. (Depo. Ex. 35-45; Depo. Reynolds at pp. 153-171; 173-179). 18. After a "few demonstrations" the OHS realized that people can gather in certain areas with very little warning and are often not applying for permits. (Depo. Reynolds, p. 24). OHS began to monitor social media accounts to "handle high profile protest activities" following 45 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 46 of 86 PageID 4950 Sgt. Reynolds' visit to Nashville in 2016 to observe how the Nashville law enforcement authorities handled an unpermitted Black Panther rally. (Depo. Reynolds, pp. 99-100.18 ) OHS also began in 2019 the daily distribution of what is known as the Joint Intelligence Bulletin ("JIB"). The JIB was designed to collect information from federal, state, and local agencies regarding known potential threats to public safety for dissemination to other law enforcement agencies. (Depo. Chandler, pp. 22-25) 19. In 2016, Director Rallings requested that Sgt. Reynolds in OHS prepare a spreadsheet of demonstrations and protests. (Depo. Ex. 8; Depo. Rallings, pp. 54-55). The purpose of this spreadsheet was so Director Rallings could make certain that he knew how many civil disturbances the MPD responded to for budgetary purposes. (Depo. Rallings, p. 55). Director Rallings estimates that 3% of his overtime budget of almost $25 million dollars has been spent responding to protest crowds or some type of demonstrations. (Depo. Rallings, p. 55). 20. Although the vast majority of the events appearing on this spreadsheet did not obtain the requisite permits, very few arrests were made, and with a few exceptions, the MPD allowed all of the individuals at these unpermitted events to exercise their right to protest. (Depo. Rallings, p. 55). MPD has not disbursed or otherwise interfered with any of those protests. (Depo. Rallings, pp. 59-60; 81). The Director was committed to recognizing the right to protest and having it done lawfully (Id. at 81). 21. Detective Reynolds was instructed by the Director to conduct an investigation of the January 19, 2016 "Die-In" at Mayor Strickland's residence. Director Rallings asked that the MPD come up with a way to better protect the Mayor. (Rallings Depo. at p. 64). 46 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 47 of 86 22. PageID 4951 The Head of the Mayor's Security Team, Lt. Albert Bonner, added the persons on the AOA for the Mayor's home to the pre-existing City Hall Escort List because he was trying to make sure if any of the individuals who trespassed at the Mayor's home came to City Hall, the City Hall security team would be on notice of the potential disruption. (Bonner Depo. at p.28). 23. The City has publicly acknowledged that the brief period of time when the complete AOA list was included with the "Escort List" at City Hall was an error, with "some errors on the list." 24. On February 7, 2017, Fergus Nolan attended a City Council meeting at City Hall. Although his name was on the AOA list added to the City Hall list, he was not escorted. (Bonner Depo at p. 49; Bonner Depo Ex. 7). Id. He was briefly detained and questioned following a report made to City Hall Security that he "wondered" what would happen if he carried a gun into City Council Chambers. Id. at 47-48. This is the only incident in the record of an alleged "escort" of anyone on the "Escort List" which is the subject of this case. Standing Facts 25. The Kendrick complaint states that the "corporate entity" of The American Civil Liberties Union of West Tennessee, Inc. was dedicated to and involved with constitutionally protected activities, and the corporate entity (referred to as "WTCLU") and its members "intend[ed] to continue such activities in the future." 26. The Kendrick complaint did not allege that ACLU-TN was the subject of unlawful surveillance by the Memphis Police Department. (ECF No. 33-1). 27. Chan Kendrick in his official capacity as Executive Director of American Civil Liberties Union of Tennessee, Inc., was not a party to the Consent Decree. (ECF No. 9-1). 28. The ACLU-TN was not a party to the 1978 Kendrick Consent Decree. (ECF No. 47 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 48 of 86 PageID 4952 9-1). 29. There is nothing in the Consent Decree that preserves the right of enforcement to any successors of the American Civil Liberties Union of West Tennessee, Inc. (ECF. No. 9-1). 30. ACLU-TN admits that it has no evidence that ACLU-TN ever adopted the bylaws of the WTCLU. See Pl.'s Resp. to Req. for Admis., p. 6; Dep. of ACLU-TN's Corporate Representative at 36:16-22 (April 30, 2018). 31. Although its bylaws were never formally adopted by ACLU-TN, the WTCLU/West Tennessee Chapter that existed in the 1970s was affiliated with the ACLU-TN around the time of the Kendrick litigation, and attended an ACLU-TN Board of Directors Meetings in 1975 (Doc 33-9, PageID 428). 32. During the 1970s and 1980s, each chapter of the ACLU-TN was largely responsible for its own fundraising, including the WTCLU/West Tennessee Chapter. The Minutes from the WTCLU Board Meeting on January 10, 1983, explained that the WTCLU's fundraising efforts in the prior year were "insufficient to adequately support the Chapter. The Memphis office depends on raising enough money to support it." (ACLU 000211-12). 33. The decision of whether to seek enforcement of the Kendrick Consent Decree rested with the entity WTCLU/West Tennessee Chapter and not the ACLU-TN. Within a redacted portion of the Minutes of the January 15, 1979 Regular Meeting of Board of Directors of the WTCLU, the WTCLU discussed "whether to bring case for violating Kendrick Decree." (See ACLU 000146-47; ACLU's Privilege Log, Line No. 146). 34. ACLU-TN also admitted that it has no evidence that ACLU-TN was the entity that initiated, funded, or pursued the Kendrick case. See Dep. of ACLU-TN's Corporate Representative at 39:16-40:22 (April 30, 2018). 48 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 49 of 86 35. PageID 4953 The last reported meeting of the WTCLU Board of Directors was held on March 3, 1983. (See ACLU 000215). 36. Each chapter was entirely responsible for choosing, funding, and litigating whatever cases it chose to initiate. For example, the Minutes from the December 11, 1978 Meeting of the Board of Directors of WTCLU reported: "After due discussion, it was unanimously resolved that the Chapter should undertake representation of this individual in connection with her hearing before the Haywood County School Board." (ACLU 000143-45). To take another example, the Minutes from the May 12, 1980 WTCLU Board of Directors' Meeting reported that "[t]he consensus of the group was that we should not take the case because the damages were slight and the impact value would apparently be limited. A letter rejecting the case will be sent to the client." (ACLU 000167). 37. In response, ACLU-TN argued that ACLU-TN was the actual party in the Kendrick litigation because the American Civil Liberties Union in West Tennessee, Inc./West Tennessee Civil Liberties Union, Inc. was functioning as a "chapter" of ACLU-TN at that time. (ECF No. 33, PageID 373-74). ACLU-TN relied on language in the original Kendrick Complaint and on ACLU-TN's bylaws in place at that time to support its claim that the American Civil Liberties Union of West Tennessee, Inc./West Tennessee Civil Liberties Union, Inc. was operating as part of ACLU-TN at the time of the Kendrick Consent Decree, and was essentially the same party for purposes of standing. See Id. VII. CONTESTED ISSUES OF LAW Parties' Contested Issues of Law 1. Whether Intervening Plaintiff ACLU-TN has presented clear and convincing evidence that the Defendant City of Memphis has violated the provisions of the Kendrick Decree 49 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 50 of 86 PageID 4954 and established its prima facie case of contempt. 2. Whether Defendant has met its burden to produce evidence that proves it is in substantial compliance with the Decree and has taken all reason steps within its power to comply. 3. Whether the Court shall use its contempt powers to protect and enforce the Decree by appointing a monitor to oversee compliance for a reasonable period of time, ordering mandatory training on the Decree or other remedial measures. 4. Whether an award of attorney’s fees to Intervening Plaintiff is appropriate. 5. Whether the Intervening Plaintiff, ACLU-TN, has standing to maintain this action when it was unquestionably not a party to the litigation that gave rise to the Kendrick Consent Decree? 6. Whether the Consent Decree prohibits police surveillance per se, or only surveillance that has the purpose of interfering with or targeting particular political viewpoints being expressed? 7. Whether the Consent Decree should be interpreted to preclude any form of social media or monitoring activity involving expression of political opinions or associations, even by written authorization of the Police Director, if the monitoring is not part of a "criminal investigation" and is not being done for purposes of political intelligence? 8. Whether Section H of the Decree should be interpreted to preclude the collection and dissemination of personal information for any purpose, unless it is part of a MPD Director approved "criminal investigation" or an actual criminal investigation underway by another law enforcement agency, and regardless of whether the incident raises First Amendment issues? 9. Whether law enforcement in Memphis may lawfully gather information from 50 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 51 of 86 PageID 4955 open source social media, including "friend" requests made using covert or fake account names, in order to fulfill its community caretaking function, if not done for purposes of political intelligence? 10. Whether the Consent Decree requires MPD officers to turn off body worn cameras, police cruiser dash cameras, and other cameras when providing police presence and security at an event where political speech is likely to occur, regardless of whether the event reasonably has the potential for civil disruption or violence? 11. Whether the MPD is prohibited, by virtue of the Consent Decree, from investigating and gathering information from the open source social media accounts of persons and/or groups who have publicly stated the intention to trespass on the private property of an elected official, disrupt interstate traffic, hack into the computer data base of a corporate entity, and establish a phony social media account purporting to be that of the Memphis Police Director, if those statements may not have not risen to the level of actual criminal conduct and are made along with expressions of political or social opinions? 12. Whether the MPD is prohibited by the Consent Decree from gathering information from social media in order to determine crowd size, potential for violence, and to form an operational plan to provide an appropriate level of police protection and for budgetary purposes relating to the events, where the events may involve expressions of political or social opinions? 13. Whether the Consent Decree places greater restrictions on Memphis law enforcement and its ability to gather information to fulfill its community caretaking functions than the Constitution of The United States and the cases interpreting it place on police forces of other municipalities? 51 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 52 of 86 14. PageID 4956 Whether the doctrine of laches bars any claim related to MPD's use of a social media collator that was first purchased in 2014? 15. Whether the doctrines of laches and equitable estoppel bar any claims related to, or attempts by ACLU-TN to modify, MPD's policies regarding and the use of body warn cameras, SkyCops, and other openly-used camera technology when those tools have been in open and obvious use for several years? 16. Whether the doctrines of laches and equitable estoppel bar any claims related to, or attempts by ACLU-TN to modify, MPD's policies regarding officer presence at permitted and unpermitted protests, parades, and events? VIII. TRIAL EXHIBITS Plaintiff’s Exhibits: Plaintiff will offer the following exhibits at trial: Date 1 2 7/6/2016 3 7/6/2016 4 7/6/2016 5 7/7/2016 6 7/7/2016 7 7/7/2016 8 7/8/2016 9 7/8/2016 10 7/8/2016 11 7/10/2016 12 7/10/2016 13 7/10/2016 Document Type Plaintiff's Motion for Summary Judgment Exh. A: AOA Email from Reynolds Email from Bass Email from Bass Email from Reynolds with Attachment Email from Howard Email from Reynolds with Attachment Email from Bass with Attachment Email from Burnett Email from Reynolds Email from Max Email from Bass with Attachment Email from Reynolds 52 Bates Range ECF 107-3 18057-59 18064-65 18075-77 18158-62 18190-91 18202-04 1589-90 1657-58 3450 1752 18414-16 1794-97 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 53 of 86 Date 14 7/10/2016 15 7/11/2016 16 7/11/2016 17 7/12/2016 18 7/12/2016 19 7/13/2016 20 7/13/2016 21 22 23 24 25 26 27 7/13/2016 7/14/2016 7/14/2016 7/14/2016 7/14/2016 7/14/2016 7/15/2016 28 7/15/2016 29 7/15/2016 30 7/15/2016 31 7/15/2016 32 7/15/2016 33 7/15/2016 34 7/15/2016 35 7/15/2016 36 7/16/2016 37 7/16/2016 38 7/17/2016 39 7/17/2016 40 7/17/2016 41 7/17/2016 42 7/17/2016 43 7/19/2016 Document Type Email from Howard Email from Bullock with Attachment Email from Chandler Email from Reynolds Email from Lovejoy Email from Wright with Attachment Email from Wright with Attachment Email from Barrett Email from Reynolds Email from Reynolds Email from Reynolds Email from Howard Email from Bass Email from Reynolds Email from Chandler with Attachment Email from Bass Email from Grafenreed with Attachment Email from Worthy with Attachment Email from Worthy with Attachment Email from Reynolds with Attachment Email from Worthy with Attachment Email from Worthy Email from Wright with Attachment Email from Bass Email from Williams Email from Williams with Attachment Email from Filsinger with Attachment Email from Bass Email from Bass Email from Bass 53 PageID 4957 Bates Range 18422-23 22841-50 1962-64 2137-42 2195-97 2387-89 2392-94 2441-42 2564-66 2533-42 2612-14 22924 2645 3477-78 18498-18501 3512-13 3569-71 3608-10 3618-21 3636-38 3643-46 3669-73 22975-77 3703 3948-49 3958-59 3994-95 3997-98 4043-45 18534-35 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 54 of 86 Date 44 7/21/2016 45 7/21/2016 46 7/21/2016 47 7/21/2016 48 49 50 51 52 7/23/2016 7/23/2016 7/24/2016 7/26/2016 7/26/2016 53 7/26/2016 54 7/26/2016 55 56 57 58 7/26/2016 7/26/2016 7/27/2016 7/28/2016 59 7/30/2016 60 7/31/2016 61 8/1/2016 62 8/1/2016 63 8/1/2016 64 8/4/2016 65 8/6/2016 66 8/9/2016 67 8/10/2016 68 8/10/2016 69 8/10/2016 70 8/13/2016 71 8/13/2016 72 8/13/2016 Document Type Email from Wilburn Email from Rosario Email from Wilburn with Attachment Email from Wilburn with Attachment Email from Bass Email from Shelton Email from Reynolds Email from Bass Email from Watson Email from Reynolds with Attachment Email from Bass with Attachment Email from Chandler Email from Wilburn Email from Torres Email from Chandler Email from Reynolds with Attachment Email from Wilburn with Attachment Email from Reynolds with Attachment Email from Reynolds with Attachment Email from Reynolds with Attachment Email from Bass Email from Bass Email from Reynolds Email from Reynolds with Attachment Email from Sanders with Attachment Email from Bass Email from Grafenreed with Attachment Email from Grafenreed with Attachment Email from Reynolds with 54 PageID 4958 Bates Range 4290-92 4298-301 4311-12 4376-77 4699-702 4708-09 8384 8520-22 8530-32 8563-8564 8595-602 8618-26 8636-38 22995-96 8936-41 9157-58 9259-60 9316-20 9332-36 9442-44 23002-03 10247 10457-59 23015-24 10703-06 23025-29 11083-88 11155-58 11177-78 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 55 of 86 Date 73 8/15/2016 74 75 76 77 78 79 80 8/15/2016 8/15/2016 8/15/2016 8/15/2016 8/15/2016 8/15/2016 8/20/2016 81 8/22/2016 82 8/22/2016 83 8/23/2016 84 8/23/2016 85 8/28/2016 86 8/30/2016 87 8/30/2016 88 8/30/2016 89 8/30/2016 90 9/5/2016 91 9/6/2016 92 9/13/2016 93 9/19/2016 94 9/22/2016 95 9/22/2016 96 9/22/2016 97 10/4/2016 98 10/11/2016 99 10/28/2016 100 10/28/2016 101 10/28/2016 102 11/11/2016 Document Type Attachment Email from Grafenreed with Attachment Email from Patty Email from Juneau Email from Patty Email from Chandler Email from Reynolds Email from Reynolds Email from Reynolds Email from Reynolds with Attachment Email from Sealey with Attachment Email from Reynolds Email from Bass Email from Penny with Attachment Email from Ross Email from Ross Email from Reynolds Memphis Police Department Policy and Procedures Email from Reynolds Email from Reynolds Email from Reynolds Email from Williams with Attachment Email from Bass Email from Wilburn with Attachment Email from Wilburn with Attachment Email from Blum Email from Reynolds Email from Reynolds Email from Reynolds with Attachment Email from Bass Email from Reynolds with Attachment 55 PageID 4959 Bates Range 11504-06 11596 11604 11661-62 11679-80 11720-21 11761 23056-58 13572-98 13487-96 13783 13785 14631-32 14819 14822 14830-31 22659-22675 14934-35 14978 15170 23059-60 2766-68 2785 2786-87 15667-72 18955 19298-300 19302-04 19316 19436-37 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 56 of 86 Date 103 11/11/2016 104 11/11/2016 105 11/11/2016 106 11/11/2016 107 108 109 110 111 11/11/2016 11/30/2016 12/29/2016 12/31/2016 1/1/2017 112 1/3/2017 113 1/4/2017 114 1/8/2017 115 1/8/2017 116 1/10/2017 117 1/10/2017 118 1/17/2017 119 1/17/2017 120 1/17/2017 121 1/17/2017 122 1/17/2017 123 1/17/2017 124 1/17/2017 125 1/18/2017 126 1/19/2017 127 1/19/2017 128 1/19/2017 129 1/21/2017 130 2/1/2017 131 2/2/2017 Document Type Email from Freed Email from Freed Email from Houston Email from Freed with Attachment Email from Freed Email from Ross Email from Rallings Email from Bass Email from Reynolds Email from Rallings with Attachment Email from Patty Powerpoint All Shook Up Email from Reynolds with Attachment Email from Reynolds with Attachment Email from Reynolds with Attachment Email from Reynolds with Attachment Email from Reynolds Email from Rallings Email from Bonner with Attachment Email from Bonner with Attachment Email from Bonner with Attachment Email from Bonner with Attachment Email from Reynolds with Attachment Email from Howard Email from Howard Email from Landrum Email from Reynolds with Attachment Email from Patty Email from Bass with Attachment 56 PageID 4960 Bates Range 19440-42 19443 19445-53 19462-65 19475-78 19564-65 19887-88 19989-90 19991 20143-46 20398-400 22763-72 20559-62 20590-92 20593-94 20708-33 20737-39 17248-49 20774-95 20796-820 20821-31 20832-33 20971-72 1104 1105 1106-07 21229-37 21654 21661-62 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 57 of 86 Date 137 Document Type Email from Freed with Attachment Email from Bonner with Attachment Spreadsheet -- Protests Demonstrations and Flashmobs Director's Draft Civil Disturbance SOP Powerpoint 2016 Protest and Flash Mob Arrests Powerpoint Blue Suede Shoes 138 JIBS 132 2/6/2017 133 2/19/2017 134 135 136 57 PageID 4961 Bates Range 23132-46 3018-19 22646 22011-22439 22742-54 22800-84 18270-72; 4818-20; 4840-43; 4867-74; 18319-25; 4915-22; 4988-96; 5096-106; 5159-71; 5218-33; 18466-80; 5431-50; 5530-47; 5549-69; 5593-614; 5979; 6267-74; 6413-22; 687585; 7157-67; 7315-21; 1851821; 18526-29; 18540-44; 18549-53; 18558-62; 7704-09; 7823-27; 7828-32; 18586-91; 8088-95; 8107-12; 8154-67; 8224-30; 18606-11; 18620-24; 18629-33; 8387-91; 18638-42; 18647-49; 8443-46; 18654-57; 8643-46; 18662-64; 8779-83; 18678-84; 18689-93; 18698701; 18706-11; 18718-24; 9198-202; 18729-34; 18739-44; 9296-301; 9389-94; 9468-73; 9618-24; 9708-14; 9785-91; 9838-43; 9950-56; 9977-81; 10116-21; 10191-96; 10229-35; 10276-80; 10319-24; 10366-70; 10418-23; 10463-68; 10545-50; 10602-07; 10696-702; 1072934; 10782-88; 10831-36; 10909-14; 10980-85; 11117-23; 11216-22; 11303-09; 11359-64; 11420-25; 11474-79; 11571-77; 11801-08; 12110-17; 12392401; 12450-54; 12506-10; 13066-70; 12990-93; 13020-24; 13082-86; 13163-67; 13211-14; 13298-302; 13403-06; 13461- Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 58 of 86 Date Document Type 58 PageID 4962 Bates Range 65; 13513-16; 13675-79; 13850-53; 14079-82; 14199203; 14259-63; 14365-68; 14399-402; 14484-87; 1452326; 14574-77; 14609-12; 14660-63; 14707-10; 14739-42; 14752-55; 14795-98; 14840-43; 14856-59; 14870-72; 14880-82; 14893-95; 14900-03; 14908-11; 14930-33; 15009-14; 15062-67; 15213-17; 15282-86; 15430-37; 15446-53; 15570-73; 15586-89; 15609-12; 15626-30; 15641-44; 15661-64; 15699-704; 1572327; 15747-52; 15778-83; 15794-99; 15822-27; 15880-86; 15920-27; 16051-56; 16096100; 16114-17; 16121-23; 16183-86; 16199-202; 1621519; 16233-37; 16246-48; 16257-61; 16280-85; 16300-04; 16340-44; 16359-63; 16378-81; 16408-13; 16425-31; 16446-51; 16481-86; 16508-13; 16530-33; 16538-41; 16546-50; 16565-69; 16583-87; 16597-601; 1662932; 16640-44; 16650-54; 16667-70; 16675-79; 16698702; 16715-20; 16727-31; 16807-11; 16835-39; 16850-55; 16873-77; 16882-85; 16894-99; 16910-14; 16942-46; 16962-67; 16978-82; 16996-17000; 1701014; 17020-24; 17034-38; 17048-52; 17064-67; 17125-29; 17139-43; 17153-57; 17187-92; 17206-09; 17217-35; 17243-47; 17283-87; 17455-58; 17514-17; 17540-44; 17558-61; 17571-76; 17590-94; 17605-10; 17622-27; 17663-69; 17674-78; 17689-94; 17723-27; 17738-43; 17761-65; 17771-76; 17795-99; 17818; 17846-49; 17854-58; 17868-72; 17882-86; 17892-96; 17913-18; Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 59 of 86 Date 139 Document Type PageID 4963 Bates Range 17936-40; 17945-49; 17973-77; 17983-87; 17998-18003 Bob Smith Data File 23726-25117 Plaintiff may offer the following exhibits at trial: Date 140 Document Type Plaintiff's Motion for Summary Judgment Exh. B: 12/29/16 Email Bates Range ECF 107-4 141 Plaintiff's Motion for Summary Judgment Exh. C: 1/17/17 Email ECF 107-5 142 Plaintiff's Motion for Summary Judgment Exh. D: List of Names ECF 107-6 143 Plaintiff's Motion for Summary Judgment Exh. E: 8/15/16 Email ECF 107-7 144 Plaintiff's Motion for Summary Judgment Exh. F: 7/19/16 Email ECF 107-8 145 Plaintiff's Motion for Summary Judgment Exh. G: 8/5/16 JIB ECF 107-9 146 Plaintiff's Motion for Summary Judgment Exh. H: 7/15/16 JIB ECF 107-10 147 Plaintiff's Motion for Summary Judgment Exh. I: 10/4/16 Email ECF 107-11 148 Plaintiff's Motion for Summary Judgment Exh. J: 7/20/16 JIB ECF 107-12 149 Plaintiff's Motion for Summary Judgment Exh. K: 7/13/16 Email ECF 107-13 150 Plaintiff's Motion for Summary Judgment Exh. L: 2/8/17 0800 JIB ECF 107-14 151 Plaintiff's Motion for Summary Judgment Exh. M: 8/11/16 1600 JIB ECF 107-15 152 Plaintiff's Motion for Summary Judgment Exh. N: 9/29/16 0800 JIB ECF 107-16 59 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 60 of 86 Date 153 Document Type Plaintiff's Motion for Summary Judgment Exh. O: CJIS Media Policy PageID 4964 Bates Range ECF 107-17 154 Plaintiff's Motion for Summary Judgment Exh. S: 7/8/16 Email ECF 107-21 155 Plaintiff's Motion for Summary Judgment Exh. T: 7/26/16 Email ECF 107-22 156 Plaintiff's Motion for Summary Judgment Exh. U: 7/10/16 Email ECF 107-23 157 Plaintiff's Motion for Summary Judgment Exh. V: 7/16/16 Email ECF 107-24 158 Plaintiff's Motion for Summary Judgment Exh. W: 7/21/16 Email ECF 107-25 159 Plaintiff's Motion for Summary Judgment Exh. X: 2/19/17 Email ECF 107-26 160 Plaintiff's Motion for Summary Judgment Exh. Y: 8/22/16 Email ECF 107-27 161 Plaintiff's Motion for Summary Judgment Exh. Z: Bob Smith Friendship List ECF 107-28 162 Plaintiff's Motion for Summary Judgment Exh. AA: 8/1/16 Email ECF 107-29 163 Plaintiff's Motion for Summary Judgment Exh. BB: 8/9/2016 Email ECF 107-30 164 Plaintiff's Motion for Summary Judgment Exh. CC: 8/1/16 Email ECF 107-31 165 Plaintiff's Motion for Summary Judgment Exh. DD: 7/13/16 Email ECF 107-32 166 Plaintiff's Motion for Summary Judgment Exh. EE: 7/13/16 Email ECF 107-33 167 Plaintiff's Motion for Summary Judgment Exh. FF: 8/15/16 Email ECF 107-34 168 Plaintiff's Motion for Summary Judgment Exh. GG: 7/13/16 Email ECF 107-35 169 Plaintiff's Motion for Summary Judgment Exh. HH: 7/13/16 Email ECF 107-36 170 Plaintiff's Motion for Summary Judgment Exh. II: 7/16/16 Email ECF 107-37 171 Plaintiff's Motion for Summary Judgment Exh. JJ: 7/14/16 Emails ECF 107-38 60 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 61 of 86 Date 172 Document Type Plaintiff's Motion for Summary Judgment Exh. KK: 7/15/16 Emails PageID 4965 Bates Range ECF 107-39 173 Plaintiff's Motion for Summary Judgment Exh. LL: 8/4/16 Email ECF 107-40 174 Plaintiff's Motion for Summary Judgment Exh. MM: 8/10/16 Email ECF 107-41 175 176 177 178 179 180 181 182 183 184 185 186 187 Plaintiff's Motion for Summary Judgment Exh. NN: 7/13/16 Email Plaintiff's Motion for Summary Judgment Exh. OO: 1/19/17 Email Plaintiff's Motion for Summary Judgment Exh. PP: 9/19/17 Email Plaintiff's Motion for Summary Judgment Exh. QQ: Kiosk Plaintiff's Motion for Summary Judgment Exh. RR: 2/20/17 Email Plaintiff's Motion for Summary Judgment Exh. SS: 7/13/16 Email Plaintiff’s Response to Motion to Dismiss Complaint of Intervening Plaintiff Exh 1: Kendrick Complaint Plaintiff’s Response to Motion to Dismiss Complaint of Intervening Plaintiff Exh 2: Order, Judgment and Decree Plaintiff’s Response to Motion to Dismiss Complaint of Intervening Plaintiff Exh 3: Affidavit Eric Sirignano Plaintiff’s Response to Motion to Dismiss Complaint of Intervening Plaintiff Exh 4: ACLU-TN Charter Plaintiff’s Response to Motion to Dismiss Complaint of Intervening Plaintiff Exh 5: Affidavit Sarah Abbott Plaintiff’s Response to Motion to Dismiss Complaint of Intervening Plaintiff Exh 6: West Tennessee Civil Liberties Union Documents Plaintiff’s Response to Motion to Dismiss Complaint of Intervening Plaintiff Exh 7: ACLU-TN By-Laws 61 ECF 107-42 ECF 107-43 ECF 107-44 ECF 107-45 ECF 107-46 ECF 107-47 ECF 33-1 ECF 33-2 ECF 33-3 ECF 33-4 ECF 33-5 ECF 33-6 ECF 33-7 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 62 of 86 Date 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 7/1/2016 7/5/2016 7/5/2016 7/6/2016 7/6/2016 7/6/2016 7/7/2016 7/7/2016 7/8/2016 Document Type Plaintiff’s Response to Motion to Dismiss Complaint of Intervening Plaintiff Exh 8: 1973 By-Laws Plaintiff’s Response to Motion to Dismiss Complaint of Intervening Plaintiff Exh 9: Exhibit Board Minutes Plaintiff’s Response to Motion to Dismiss Complaint of Intervening Plaintiff Exh 4: ACLU-TN Charter Plaintiff’s Response to Motion to Dismiss Complaint of Intervening Plaintiff Exh 6: West Tennessee Civil Liberties Union Documents Plaintiff’s Response to Motion to Dismiss Complaint of Intervening Plaintiff Exh 7: ACLU-TN By-Laws Plaintiff’s Response to Motion to Dismiss Complaint of Intervening Plaintiff Exh 8: 1973 By-Laws Plaintiff’s Response to Motion to Dismiss Complaint of Intervening Plaintiff Exh 9: Exhibit Board Minutes Plaintiff's Response to Motion for Summary Judgment on the Issue of Standing Ex A: September 2, 1969 Minutes Plaintiff's Response to Motion for Summary Judgment on the Issue of Standing Ex B: December 11, 1971 Minutes Plaintiff's Response to Motion for Summary Judgment on the Issue of Standing Ex C: Deposition of Hedy Weinberg Email from Stephenson with Attachment Email from Reynolds with Attachment Email from Howard Email from Bass with Attachment Email from Bass Email from Bass Email from Bass Email from Jolly Email from Ross 62 PageID 4966 Bates Range ECF 33-8 ECF 33-9 ECF 33-4 ECF 33-6 ECF 33-7 ECF 33-8 ECF 33-9 ECF 90-2 ECF 90-3 ECF 90-4 18015-16 18036-37 18044-45 18049-52 18054-55 18060-62 18087-90 18207-12 1674 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 63 of 86 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 Date 7/8/2016 7/8/2016 7/8/2016 7/8/2016 7/8/2016 7/8/2016 7/9/2016 7/10/2016 7/10/2016 7/11/2016 7/11/2016 7/11/2016 7/11/2016 7/12/2016 7/12/2016 7/12/2016 7/12/2016 7/12/2016 7/13/2016 7/13/2016 7/13/2016 7/13/2016 7/13/2016 7/13/2016 7/13/2016 7/13/2016 7/13/2016 7/13/2016 7/13/2016 7/13/2016 7/13/2016 7/14/2016 7/14/2016 7/15/2016 7/15/2016 242 7/15/2016 243 7/15/2016 244 7/15/2016 Document Type Email from Oakley Email from Reynolds with Attachment Email from Chandler Email from Reynolds with Attachment Email from Grafenreed Email from Stephenson with Attachment Email from Bass Email from 9015531177 with Attachment Email from Chandler with Attachment Email from Wilburn with Attachment Email from Chandler Email from Ross with Attachment Email from Reynolds with Attachment Email from Bass Email from Chandler with Attachment Email from Bass Email from Bass Email from Bass Email from Bass Email from Patty Email from Bass with Attachment Email from Watson Email from Reynolds Email from Watson Email from Bass Email from Bass Email from Chandler Email from Penny Email from Chandler Email from Wilburn with Attachment Email from Reynolds Email from Ross Email from Bass Email from Howard with Attachment Email from Wright with Attachment OPORD: Black Lives Matter Protest Rally --- Poplar Plaza Email from Stephenson with Attachment Email from Wright with Attachment 63 PageID 4967 Bates Range 1675 1626-27 1629 1634-35 18262-67 18294-95 1735-36 1742-43 1804-12 1866-88 1953 2022-38 2040-42 2053-54 2056-58 2109-11 2119-20 2145-50 2263-66 2294 22883-94 2297-302 22885-88 2342-45 2346-52 2368-73 2379-80 22901-02 2403-06 2451-56 2469-73 22922-23 2609-10 18492-93 8758-82 6799-803 18512-13 3541-43 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 64 of 86 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 Date 7/15/2016 7/15/2016 7/15/2016 7/16/2016 7/16/2016 7/16/2016 7/16/2016 7/16/2016 7/16/2016 7/16/2016 7/16/2016 7/16/2016 7/17/2016 7/17/2016 7/17/2016 7/20/2016 7/20/2016 7/20/2016 7/20/2016 7/21/2016 7/22/2016 7/24/2016 7/24/2016 7/26/2016 7/26/2016 7/26/2016 7/27/2016 7/27/2016 7/28/2016 7/28/2016 7/28/2016 7/28/2016 7/28/2016 7/28/2016 7/29/2016 7/29/2016 7/29/2016 7/30/2016 Document Type Email from Patty Email from Wilburn Email from Wilburn Email from Williams with Attachment Email from Grafenreed with Attachment Email from Penny with Attachment Email from Dickerson with Attachment Email from Reynolds with Attachment Email from Ryall with Attachment Email from Reynolds with Attachment Email from Reynolds with Attachment Email from Smith Email from Ross with Attachment Email from Bass Email from McNeil Email from Wright with Attachment Email from Bass Email from Chandler Email from Bass Email from Bass Email from Stephenson with Attachment Email from Bass Email from Houston Email from Howard Email from Hardy Email from Reynolds Email from Bass Email from Shearin Email from Reynolds with Attachment Email from Reynolds with Attachment Email from Reynolds with Attachment Email from Reynolds with Attachment Email from Reynolds with Attachment Email from Rallings with Attachment Email from Reynolds with Attachment Email from Reynolds with Attachment Email from Stephenson with Attachment Email from Reynolds with Attachment 64 PageID 4968 Bates Range 3655 3660-61 3677-79 3741-42 3701-02 3751-52 3765-66 3788-833 3930-33 3754-59 3761-63 3935-37 3956-57 3973 4053-54 7523-28 4144-46 4191-93 4213-14 4278-81 18580-81 8363-72 8403 528-31 8511-12 8579-80 8683-85 8692-94 8834-35 8853-54 8855-56 8860-61 8865-66 8917-19 9023 9041-42 18712-13 9212-14 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 65 of 86 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 Date 8/2/2016 8/2/2016 8/2/2016 8/2/2016 8/3/2016 8/4/2016 8/5/2016 8/5/2016 8/5/2016 8/5/2016 8/5/2016 8/9/2016 8/9/2016 8/12/2016 8/13/2016 8/13/2016 8/13/2016 8/13/2016 8/13/2016 8/13/2016 8/13/2016 8/13/2016 8/13/2016 8/13/2016 8/13/2016 8/16/2016 8/19/2016 8/22/2016 8/23/2016 8/26/2016 9/2/2016 9/27/2016 9/29/2016 9/30/2016 10/5/2016 10/14/2016 10/23/2016 10/25/2016 Document Type Email from Reynolds with Attachment Email from Reynolds with Attachment Email from Reynolds with Attachment Email from Reynolds with Attachment Email from Reynolds with Attachment Email from Patty Email from Reynolds Email from Grafenreed with Attachment Email from Penny with Attachment Email from Wilson with Attachment Email from Reynolds with Attachment Email from Howard Email from Bass Email from Stephenson with Attachment Email from Reynolds Email from Reynolds with Attachment Email from Sampietro Email from Wright with Attachment Email from Wright with Attachment Email from Bass Email from Penny Email from Sampietro with Attachment Email from Sampietro Email from Reynolds Email from Reynolds Email from Reynolds with Attachment Email from Wilson with Attachment Email from Reynolds with Attachment Email from Penny with Attachment Email from Stephenson with Attachment Email from Wilson with Attachment Email from Wilburn with Attachment Email from Bass Email from Reynolds Email from Reynolds Email from Reynolds Email from Reynolds with Attachment Email from Bass 65 PageID 4969 Bates Range 9523-34 9550-52 9553-54 9571 9729-30 9854 2669-72 10033-38 10062-65 18770-71 10142-45 10499-50 10574-75 18785-86 11013-14 11023-25 11106 11113-15 11139-40 11146-47 11152 11236-40 11247-49 11254-56 11261-63 12413-31 18818-19 13599-25 13762-64 18820-21 18938-39 2825-26 2873-75 15594-96 15711-12 18992 19123-25 19142 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 66 of 86 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 Date 10/26/2016 11/2/2016 11/15/2016 11/15/2016 11/15/2016 12/19/2016 12/19/2016 12/20/2016 12/20/2016 12/20/2016 1/8/2017 1/17/2017 1/17/2017 1/20/2017 1/24/2017 1/24/2017 1/24/2017 1/24/2017 1/24/2017 1/24/2017 1/24/2017 1/24/2017 1/24/2017 1/24/2017 1/24/2017 1/24/2017 1/24/2017 1/24/2017 2/1/2017 2/1/2017 2/8/2017 2/8/2017 2/13/2017 2/14/2017 2/19/2017 Document Type Email from Chandler with Attachment Email from Sampietro Email from Reynolds Email from Freed Email from Freed with Attachment Email from Bonner with Attachment Email from Rosario with Attachment Email from Bonner with Attachment Email from Bonner with Attachment Email from Bonner with Attachment Email from Davis Email from Rudolph with Attachment Email from Reynolds with Attachment Email from Bonner with Attachment Email from Reynolds with Attachment Email from Bass Email from Patty Email from Bass Email from Patty Email from Grafenreed with Attachment Email from Rallings Email from Watson Email from Grafenreed with Attachment Email from Grafenreed Email from Grafenreed Email from Watson Email from Rallings Email from Bass Email from Reynolds with Attachment Email from Patty Email from Howard Email from Polk with Attachment Email from Reynolds with Attachment Email from Bonner Email from Reynolds with Attachment 66 PageID 4970 Bates Range 19148-215 19366-67 19501 16575-76 19502-05 19795-96 19842-48 19860-62 19866-68 19872-74 20563-64 20756-59 20933-56 21206-08 21247-48 21251 21252-54 21269-71 21279-82 21307-13 21314-20 21329-35 21344-52 21353-61 21362-72 21373-83 21409-19 21436 21596 21608-12 23147 21863-64 2898-921 2963-64 3013-14 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 67 of 86 PageID 4971 Defendant’s Exhibits: Defendant will offer the following exhibits at trial: Exhibit No. Description 1 Video from Protest at Valero 2 Video from Protest at Valero 3 Video from Protest at Valero 4 Video from Protest at Valero 5 Video from Protest at Valero 6 Video from Protest at Valero 7 Video from Protest at Valero 8 Video from Protest at Valero 9 Video from Protest at Valero 10 Video from Protest at Valero 11 Video from Protest at Valero 12 Video from Protest at Valero Document Identification 3309_1-162017_VALERO_Arkansas Rising.docx 3310_1-162017_VALERO_Cohen_Vale ro1.mp4 3311_1-162017_VALERO_Cohen_Vale ro2.mp4 3312_1-162017_VALERO_Cohen_Vale ro3.mp4 3313_1-162017_VALERO_Cohen_Vale ro4.mp4 3314_1-162017_VALERO_Cohen_Vale ro5.mp4 3315_1-162017_VALERO_Cohen_Vale ro6.mp4 3316_1-162017_VALERO_Cohen_Vale ro7.mp4 3317_1-162017_VALERO_Demster_Va lero1.mp4 3318_1-162017_VALERO_Demster_Va lero2.mp4 3319_1-162017_VALERO_Demster_Va lero3.mp4 3320_1-162017_VALERO_Demster_Va lero4.mp4 67 Stipulation as to Authenticity Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 68 of 86 Exhibit No. Description 13 Video from Protest at Valero 14 Video from Protest at Valero 15 Video from Protest at Valero 16 Video from Protest at Valero 17 Video from Protest at Valero 18 Video from Protest at Valero 19 Video from Protest at Valero 20 21 22 23 24 Video from Protest at Valero Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Document Identification 3321_1-162017_VALERO_Easter_Valer o1.mp4 3322_1-162017_VALERO_Garner_Vale ro1.mp4 3323_1-162017_VALERO_Garner_Vale ro2.mp4 3324_1-162017_VALERO_GottiValero1.mp4 3325_1-162017_VALERO_Hive Swarm Media.mp4 3326_1-162017_VALERO_TNT_Valero 1.mp4 3327_1-162017_VALERO_TNT_Valero 2.mp4 3328_1-162017_VALERO_Washington _Valero1.mp4 Clip__Elvis_Presley___Craft_ 2016-08-15_1843_Arrest.mp4 Clip__Elvis_Presley___Craft_ 2016-0815_1930_DanielNorth.mp4 Clip__Elvis_Presley___Craft_ 2016-08-15_2024_ DeondryeCrum.mp4 Clip__Elvis_Presley___Craft_ 2016-08-15_2024_ DeondryeCrum2.mp4 68 PageID 4972 Stipulation as to Authenticity Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 69 of 86 Exhibit No. 25 26 27 28 29 30 31 32 33 Description Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Document Identification Clip__Elvis_Presley___Craft_ 2016-0815_2054_NorthDaniel.mp4 Clip__Elvis_Presley___Craft_ 2016-08-15_DanielNorth.mp4 Elvis_Presley___Craft_201608-15_1843_EvansSmith Arrest.mp4 Elvis_Presley___Craft_201608-15_1845_EvansSmith.mp4 Elvis_Presley___Craft_201608-15_1850_Williams, Lawrence.mp4 Elvis_Presley___Craft_201608-15_1906_Williams, Lawrence.mp4 Elvis_Presley___Craft_201608-15_1907_Williams, Lawrence.mp4 Elvis_Presley___Craft_201608-15_1921_Williams, Lawrence.mp4 Elvis_Presley___Craft_201608-15_1924_Williams, Lawrence.mp4 69 PageID 4973 Stipulation as to Authenticity Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 70 of 86 Exhibit No. 34 35 36 37 38 39 40 41 Description Protest on 8/15/2016 Body Warn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Body Worn Camera Footage of Graceland Protest on 8/15/2016 Document Identification Elvis_Presley___Craft_201608-15_1930_evanssmith.mp4 Elvis_Presley___Craft_20160815_1954_WilliamsLawrence. mp4 Elvis_Presley___Craft_20160815_2006_AkinMatthew.mp4 Elvis_Presley___Craft_20160815_2024_WilliamsLawrence. mp4 Elvis_Presley___Craft_20160815_2054_AkinMatthew2.mp4 Elvis_Presley___Craft_20160815_2054_WilliamsLawrence2 .mp4 Elvis_Presley___Craft_20160815_2125_WilliamsLawrence2 .mp4 Elvis_Presley___Craft_201608-15_LawerenceWilliams Arrest.mp4 70 PageID 4974 Stipulation as to Authenticity Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 71 of 86 Exhibit No. 42 43 44 45 46 47 48 49 50 51 52 53 54 55 Description Body Worn Camera Footage of Graceland Protest on 8/15/2016 Frank Gotti Facebook Live Video TN Fusion Center Threat Report ACLU-TN's Responses to Request for Admission Minutes from ACLU-TN meeting Minutes from ACLU-TN meeting Minutes from ACLU-TN meeting Minutes from ACLU-TN meeting Meeting Agenda ACLU-TN Minutes from ACLU-TN meeting Dec. 11, 1987 Letter to ACLUTN Board Members Feb. 1, 1988 Letter to ACLUTN Board Members Invitation to Board Meeting Memo of Director's Meeting Document Identification Elvis_Presley___Craft_20160815_WilliamsLawrence.mp4 23715_9-27-2016_Frank Gibson Facebook live Reynolds Depo. Exhibit 44 ECF 80-3 ACLU 000211-12 ACLU 000143-45 ACLU 000167 ACLU 000146-47 ACLU 000215 ACLU 000211-12 ACLU 000302 ACLU 000301 ACLU 000298-99 ACLU 000296 71 PageID 4975 Stipulation as to Authenticity Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 72 of 86 Exhibit No. 56 57 58 59 60 61 62 63 64 65 Description 3/11/91 Letter from Hedy Weinberg to Bruce Kramer Meeting Agenda ACLU-TN 3/14/91 7/27/94 Letter from Weinberg to new member 9/20/1994 Letter to Weinberg to Andrew Branham 11/17/1994 Letter from Weinberg to (the now honorable) Sheri Lipman 10/24/1994 Letter from Weinberg to (the now honorable) Sheri Lipman 12/1/1994 Letter from (the now honorable) Sheri Lipman to interested persons 1/11/1995 Letter from (the now honorable) Sheri Lipman to interested persons 3/9/1995 Letter from (the now honorable) Sheri Lipman to interested persons 5/1/1996 Letter from (the now honorable) Sheri Lipman to interested persons Document Identification ACLU 000276-77 ACLU 0002768 ACLU 000236 ACLU 000239 ACLU 000241 ACLU 000242 ACLU 000243-44 ACLU 000245-45 ACLU 000249 ACLU 000252 72 PageID 4976 Stipulation as to Authenticity Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 73 of 86 Exhibit No. 66 67 Description Expert Disclosure of Fred Godwin 72 MPD DR 138 Civil Docket Report for Kendrick v. Chandler Screenshots of Coalition for Concerned Citizens MPD Memos from Polk to Bonner re: Fergus Nolan Screenshot of KKK headed to BLM Rally TN Fusion Center Threat Report 7/8/2016 73 JIB July 2016 74 JIB July 2016 7/13/2016 email re:Day of Rage threat Email from Joseph Patty re Day of Rage U.S. Dept. of Justice Report "Social Media and Tactical Considerations for Law Enforcement 68 69 70 71 75 76 77 Document Identification ECF No. 110-9, PageIds 4339-4359 Rallings Depo. Exh. 54, ECF No. 106-10, PageIDs 2809 ECF No. 106-12, PageID 2814 City of Memphis Bates 19806-11, ECF No. 106-17 PageIDs 2920-2925 Bonner Depo Ex. 7, City of Memphis Bates 22644 Reynolds Depo. Exh. 35, City of Memphis Bates 1781 Reynolds Depo. Exh. 36 City of Memphis Bates 05018-05024 City of Memphis Bates 05284-05300 City of Memphis Bates 2333 City of Memphis Bates 22412250 ECF No. 109-2, PageIds 3946-4005 73 PageID 4977 Stipulation as to Authenticity Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 74 of 86 Exhibit No. 78 79 80 81 82 83 84 85 86 Description Email from Wilburn re: KKK presence at protest; Screen Shots re: KKK headed to BLM Rally; Email from Stephanie Juneau re: Potential Plot to Ambush TN Fusion Center Threat Report 9/23/2016 Memphis Parade and Public Assembly Ordinance Independent Review of the 2017 Protest Events in Charlottesville, Virginia News articles related to events following Ferguson Missouri violence 28 CFR Part 23 1998 Policy Clarification Demonstrative Timeline of Events Emails re: Ian Jeffries arrest in Southaven Special Event Applications 2017 Document Identification Reynolds Depo Exh. 38, City of Memphis Bates 1779-80; City of Memphis Bates 1782; Reynolds Depo. Exh. 42, City of Memphis Bates, ECF No. 106-22 PageIDs 3005-08 Reynolds Depo. Exh. 44, City of Memphis Bates, ECF No. 106-22 PageIDs 3013-16 City of Memphis Bates 22700-22707 ECF No. 109-3 PageIDs 4007-4199 ECF Nos. 113-1, 113-2, 1133, PageIDs 4551- 4690 Rallings Depo Exh. 56 TBD Rallings Depo Exh. 57, City of Memphis Bates 4378-4383, ECF No. 111-8, PageIDs 4469-74 Howard Depo Exh. 75, City of Memphis Bates 0370-0375 74 PageID 4978 Stipulation as to Authenticity Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 75 of 86 Exhibit No. 87 88 89 90 91 92 93 94 95 96 97 Description Special Event Applications 2016 Valero Refinery Protest PowerPoint Ops Plan 7/13/2016 Video from DieIn on Mayor's Lawn Video from Bridge Incident Video of Keedran Franklin Threatening to Harm Statute Video of Keedran Franklin Disrupting Business at Rainbow Store U.S. Dept of Justice FBI "Making Prevention a Reality: Identifying, Assessing, and Managing the Threat of Targeted Attacks" Transcript of Dispatch on day of Confederate Rally in Memphis Screenshot of Post from Confederate 901 Photos and information about Sons of Document Identification City of Memphis Bates 18295-18298 City of Memphis Bates 20866-20886, ECF No. 110-7 City of Memphis Bates 22481-84, ECF No. 110-12 City of Memphis Bates 25631 City of Memphis Bates _____ City of Memphis Bates 25362 City of Memphis Bates 25363 Reynolds Depo Exh. 46 (ID) City of Memphis Bates 025208-025221 City of Memphis Bates 025222 City of Memphis Bates 025223-025230 75 PageID 4979 Stipulation as to Authenticity Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 76 of 86 Exhibit No. 98 99 100 101 102 103 104 105 106 107 108 109 110 Description Confederate Veterans JIB Jan. 6, 2018 JIB Jan. 6, 2018 1515 hrs Ops Plan 1/6/2018 Confederate 901 Rally Posts regarding Zoo Hacking Collective Sampling of 2017 JIBs Investigative file on fake Twitter Account of Director Rallings Social Media Posts Threatening the Mayor of Memphis Facebook Privacy Policy Photos from Valero Protest Fergus Nolan Zoo Facebook Posts July 1 2016 email re: NBF event City of Memphis Bates 25390-91 July 5 2016 email NBF event City of Memphis Bates 25392 July 9 2016 Email Gang Protest City of Document Identification City of Memphis Bates 025231-025238 City of Memphis Bates 025239-025249 City of Memphis Bates 025250-025343 City of Memphis Bates 25344-25349 City of Memphis Bates 25118-25207 City of Memphis Bates 23716-23725 City of Memphis Bates 25350-25360 https://www.facebook.com/abo ut/privacy/update/printable?refi d=41 City of Memphis Bates 25364-25375 City of Memphis Bates 25376-25380 July 1 2016 email re: NBF event - City of Memphis Bates 25390-91 July 5 2016 email NBF event City of Memphis Bates 25392 July 9 2016 Email Gang Protest City of Memphis Bates 25393 76 PageID 4980 Stipulation as to Authenticity Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 77 of 86 Exhibit No. 111 112 113 Description Memphis Bates 25393 Document Identification July 11 2016 email West Memphis Rally City of Memphis Bates 25394 July 15 2016 email NBF Protest City of Memphis Bates 25396 Dec. 12 2016 Valero Pipeline City of Memphis Bates 25397 July 11 2016 emaail West Memphis Rally City of Memphis Bates 25394 July 15 2016 email NBF Protest City of Memphis Bates 25396 Dec. 12 2016 Valero Pipeline City of Memphis Bates 25397 IX. TRIAL WITNESSES Plaintiff’s Witnesses (other than for impeachment purposes): WILL CALL: Ms. Elaine Blanchard May be contacted through counsel Bruce S. Kramer Apperson Crump PLC 6070 Poplar Avenue, Suite 600 Memphis, TN 38119 901-756-6300 Lt. Anthony Bonner Memphis Police Dept 170 N. Main Street Memphis, TN 38103 901-636-3700 Major Steven Chandler 77 PageID 4981 Stipulation as to Authenticity Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 78 of 86 Memphis Police Dept 170 N. Main Street Memphis, TN 38103 901-636-3700 Mr. Keedran Franklin May be contacted through counsel Bruce S. Kramer Apperson Crump PLC 6070 Poplar Avenue, Suite 600 Memphis, TN 38119 901-756-6300 Mr. Paul Garner May be contacted through counsel Bruce S. Kramer Apperson Crump PLC 6070 Poplar Avenue, Suite 600 Memphis, TN 38119 901-756-6300 Director Michael Rallings Memphis Police Dept 170 N. Main Street Memphis, TN 38103 901-636-3700 Sgt. Tim Reynolds Memphis Police Dept 170 N. Main Street Memphis, TN 38103 901-636-3700 Mr. Bradly Watkins May be contacted through counsel Bruce S. Kramer Apperson Crump PLC 6070 Poplar Avenue, Suite 600 Memphis, TN 38119 901-756-6300 78 PageID 4982 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 79 of 86 Sgt. Bradley Wilburn Memphis Police Dept 170 N. Main Street Memphis, TN 38103 901-636-3700 MAY CALL: Lt. Col. Eddie Bass Memphis Police Dept 170 N. Main Street Memphis, TN 38103 901-636-3700 Mr. Mike Cody Burch, Porter & Johnson, PLLC 130 North Court Avenue Memphis, TN 38103 Mr. Aubrey Howard City of Memphis Permits Office 2714 Union Ave Ext. Suite 100 Memphis, TN 38112 (901) 636-6711 Lt. Joseph R. Patty Memphis Police Dept 170 N. Main Street Memphis, TN 38103 901-636-3700 Major Lambert Ross Memphis Police Dept 170 N. Main Street 79 PageID 4983 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 80 of 86 Memphis, TN 38103 901-636-3700 Rev. Earl Fisher May be contacted through counsel Bruce S. Kramer Apperson Crump PLC 6070 Poplar Avenue, Suite 600 Memphis, TN 38119 901-756-6300 Ms. Hedy Weinberg Executive Director ACLU of Tennessee, Inc. P.O. Box 120160 Nashville Tennessee, 37212 Any witness identified by the Defendant Defendant’s Witnesses (other than for impeachment purposes): Will Call: Hedy Weinberg Director Michael Rallings Sgt. Timothy Reynolds Major Stephen Chandler Major Lambert Ross May Call: Frederick Godwin Lieutenant Albert Bonner, Jr. Lieutenant Colonel Eddie Bass 80 PageID 4984 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 81 of 86 Sgt. Bradley Wilburn Lieutenant Joseph Patty Paul Garner Fergus Nolan Spencer Kaaz Sgt. Edwin Cornwell Sgt. Ronald Polk Any witness identified by Plaintiff X. DEPOSITION TESTIMONY To Be Offered By Plaintiff: Plaintiff anticipates using depositions only for impeachment purposes at trial. To Be Offered By Defendant if Witnesses are Legally Unavailable: Deposition of Hedy Weinberg Begin Page, Line p. 5, l. 8 p. 6, l. 24 p. 11, l. 9 p.8 , l. 12 p. 16, l. 10 p. 27, l. 7 p. 30, l. 1 p. 32, l. 5 p. 34, l. 4 p. 35, l. 24 p. 39, l. 5 p. 39, l. 16 End Page, Line p. 5, l. 18 p.7, l. 3 p. 11, l. 11 p. 8, l. 15 p. 16, l. 18 p. 27, l. 15 p. 30, l. 12 p. 32, l. 25 p. 34, l. 11 p. 36, l. 20 p. 40, l. 22 Deposition of Aubrey Howard 81 PageID 4985 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 82 of 86 Begin Page, Line p. 5, l. 8 p. 7, l. 19 p. 41, l. 10 p. 47, l. 5 End Page, Line p. 5, l. 14 p. 8, l. 2 p. 42, l. 6 p. 47, l. 9 Deposition of Director Michael Rallings Begin Page, Line p. 6, l. 8 p. 11, l. 4 p. 17, l. 8 p. 25, l. 19 p. 26, l. 19 p. 39, l. 13 p. 40, l. 4 p. 44, l. 11 p. 50, l. 24 p. 51, l. 19 p. 52, l. 16 p. 53, l. 23 p. 54, l. 5 p. 55, l. 7 p. 56, l. 20 p. 57, l. 12 p. 57, l. 20 p. 58, l. 13 p. 58, l. 22 p. 61, l. 8 p. 62, l. 10 p. 64, l. 5 p. 68, l. 9 p. 71, l. 14 p. 71, l. 23 p. 75, l. 7 p. 78, l. 4 p. 78, l. 12 p. 79, l. 25 p. 81, l. 22 p. 83, l. 21 End Page, Line p. 6, l. 15 p. 11, l. 13 p. 17, l. 14 p. 26, l. 3 p. 26, l. 20 p. 39, l. 17 p. 40, l. 15 p. 44, l. 21 p. 51, l. 15 p. 52, l. 12 p. 52, l. 25 p. 53, l. 24 p. 55, l. 1 p. 55, l. 16 p. 57, l. 6 p. 57, l. 14 p. 57, l. 25 p. 58, l. 19 p. 61, l. 2 p. 61, l. 24 p. 62, l. 25 p. 65, l. 13 p. 70, l. 15 p. 71, l. 19 p. 74, l. 8 p. 75, l. 21 p. 78, l. 5 p. 78, l. 14 p. 81, l. 16 p. 81, l. 25 p. 85, l. 8 82 PageID 4986 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 83 of 86 p. 85, l. 13 p. 94, l. 6 p. 94, l. 23 p. 96, l. 2 p. 100, l. 22 p. 101, l. 4 p. 105, l. 20 p. 91, l. 11 p. 94, l. 7 p. 95, l. 15 p. 100, l. 19 p. 101, l. 1 p. 105, l. 13 p. 113, l. 24 Deposition of Major Lambert Ross Begin Page, Line p. 5, l. 8 p. 11, l. 8 p. 14, l. 3 p. 15, l. 19 p. 30, l. 9 p. 32, l. 20 p. 36, l. 23 p. 72, l. 9 p. 83, l. 22 End Page, Line p. 5, l. 15 p. 11, l. 19 p. 15, l. 9 p. 17, l. 9 p. 21, l. 21 p. 34, l. 24 p. 37, l. 4 p. 83, l. 7 p. 84, l. 11 Deposition of Albert Bonner Begin Page, Line p. 6, l. 12 p. 8, l. 24 p. 10, l. 17 p. 13, l. 15 p. 14, l. 6 p. 50, l. 15 p. 54, l. 3 p. 54, l. 7 p. 54, l. 21 p. 55, l. 22 End Page, Line p. 6, l. 15 p. 9, l. 9 p. 10, l. 19 p. 13, l. 23 p. 14, l. 18 p. 51, l. 20 p. 54, l. 3 p. 54, l. 12 p. 55, l. 16 p. 57, l. 11 Deposition of Eddie Bass Begin Page, Line p. 5, l. 10 p. 7, l. 22 End Page, Line p. 5, l. 17 p. 8, l. 2 83 PageID 4987 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 84 of 86 p. 9, l. 8 p. 17, l. 23 p. 24, l. 24 p. 28, l. 4 p. 28, l. 21 p. 35, l. 10 p. 51, l. 1 p. 51, l. 6 p. 60, l. 20 p. 66, l. 12 p. 9, l. 23 p. 18, l. 17 p. 26, l. 12 p. 28, l. 14 p. 29, l. 16 p. 35, l. 21 p. 51, l. 2 p. 52, l. 19 p. 65, l. 5 p. 68, l. 20 Deposition of Joseph Patty Begin Page, Line p. 5, l. 8 p. 6, l. 25 p. 40, l. 2 End Page, Line p. 5, l. 12 p. 7, l. 8 p. 40, l. 6 Deposition of Bradley Wilburn Begin Page, Line p. 5, l. 10 p. 7, l. 8 p. 8, l. 15 p. 25, l. 7 p. 34, l. 19 p. 36, l. 9 p. 48, l. 6 p. 53, l. 17 End Page, Line p. 5, l. 13 p. 7, l. 18 p. 8, l. 19 p. 25, l. 22 p. 35, l. 9 p. 36, l. 14 p. 49, l. 14 p. 53, l. 24 Deposition of Major Stephen Chandler Begin Page, Line p. 6, l. 2 p. 6, l. 8 p. 8, l. 14 p. 14, l. 6 p. 33, l. 1 p. 34, l. 2 End Page, Line p. 6, l. 2 p. 6, l. 15 p. 8, l. 25 p. 14, l. 22 p. 33, l. 14 p. 34, l. 15 84 PageID 4988 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 85 of 86 p. 37, l. 22 p. 62, l. 13 p. 70, l. 18 p. 72, l. 21 PageID 4989 p. 38, l. 6 p. 67, l. 24 p. 72, l. 12 p. 74, l. 10 XI. LENGTH OF TRIAL The parties estimate that the nonjury hearing in this matter will last three to five (3 - 5) days. XII. JURY TRIAL This is a non-jury hearing. XIII. NATURE AND AMOUNT OF DAMAGES ALLEGED By Plaintiff: Plaintiff has requested injunctive relief to enforce the Decree and an award of Attorney’s fees. By Defendant: None. XIV. INTERESTED ATTORNEYS Plaintiff’s Counsel: Thomas H. Castelli Mandy Strickland Floyd Defendant’s Counsel: Buckner Wellford 85 Case 2:17-cv-02120-JPM-egb Document 122 Filed 08/15/18 Page 86 of 86 PageID 4990 Larry Laurenzi Mark Glover Jennie Silk XV. SPECIAL EQUIPMENT The parties do not anticipate that they will need special equipment not already available in the courtroom. Counsel for the parties may bring their laptop computers to the trial and may utilize the Court’s audio/visual equipment. IT IS SO ORDERED, this 15th day of August 2018. /s/ Jon McCalla JON P. McCALLA UNITED STATES DISTRICT JUDGE 86