A consent decree is essentially an agreement to settle a lawsuit subject to continued monitoring by the court. At the same time, because their terms are arrived at through mutual agreement of the parties (with approval from the court), consent decrees also closely resemble contracts. A consent decree is also a final order from a judge and carries with it the full power of the court. The provisions of the consent decree compel the court to (1) retain jurisdiction over the decree during the term of its existence; (2) protect the integrity of the decree through its ability to hold an individual or the city in contempt if they violate the decree; and (3) modify the decree should ‘changed circumstances’ undermine its intended purpose. (Source: Opinion and Order, October 26, 2018).

A lawsuit filed in 1976:Kendrick, et al. v. Chandler, et al.,No. 2:76-cv-0449. The 1978 Consent Decree prohibited the City and the Memphis Police Department (MPD) from conducting “political intelligence” or operating or maintaining any office, division, bureau, or any other unit to engage in political intelligence.

In the Modified Kendrick Decree, Judge McCalla noted “the changing technologies available to law enforcement, the advent of and pervasive use of social media in today’s world, and the continuing responsibility of law enforcement agencies to guard against infringement of the First Amendment rights of citizens, which was the basis for” the 1978 Consent Decree. (Source: Preface, Modified Kendrick Decree, September 21, 2020).

The Modified Kendrick Decree prohibits MPD from “engaging in law enforcement activities which interfere with any person’s rights protected by the First Amendment to the United States Constitution 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. Furthermore, even in connection with the investigation of criminal conduct, [MPD] and the City of Memphis must appropriately limit all law enforcement activities so as not to infringe on any person’s First Amendment rights.” (Source: Statement of General Principles (A), Modified Kendrick Decree, September 21, 2020). Accordingly, MPD cannot violate people’s First Amendment rights, including the right to speak freely and to lawfully associate with others, even in the context of a legitimate criminal investigation.

“Political Intelligence” is the term used in the 1978 Kendrick Consent Decree, referencing the “gathering, indexing, filing, maintenance, storage, or dissemination of information, or any other investigative activity, relating to any person’s belief, opinions, associations or other exercise of First Amendment rights.” This term is no longer used and has been replaced with First Amendment-Related intelligence in the Modified Kendrick Decree. (Source: 1978 Kendrick Consent Decree).

First Amendment-Related intelligence is the gathering, indexing, filing, maintenance, storage, or dissemination of information or any other investigative activity which is undertaken due to or on the basis of a person’s beliefs, opinions, associations, or the content of the speech or expression protected by the First Amendment. (Source: Definitions, § (B), Modified Kendrick Decree, September 21, 2020, emphasis added).

MPD may not maintain personal information about any person for the purpose of First Amendment-related intelligence unless it is collected in the course of a lawful investigation of criminal conduct and is relevant to such investigation. (Source: § H (1) Modified Kendrick Decree, September 21, 2020).

Yes, MPD may gather First Amendment-related intelligence concerning upcoming events for legitimate law enforcement purposes. However, if there is no legitimate law enforcement purpose for retaining the information after the event, the information gathered shall be destroyed or removed. (Source:§ D(3), Modified Kendrick Decree, September 21, 2020).

On December 21, 2018, the Court appointed Edward L. Stanton III and his team of subject matter experts (collectively, the “Monitoring Team”) as the Court’s Independent Monitor to keep the court apprised of and to ensure the progress of the City’s compliance with the Modified Kendrick Decree. Order, Judgment, and Decree for Civil Case 76-449 (“Modified Kendrick Decree”).

Principle One: Respect for the Limited Role of the Independent Monitor. To support and advise the Court not to substitute its judgment for or replace the Court or the MPD. Principle Two: Clarity, Consistency, and Accountability in all Communications with the MPD. We want the Command Staff and officers alike who work with us to know what they are being asked to do, why they are being asked to do it, and when it should be done. Principle Three: Rigorous Transparency. We want the Court, the MPD, the ACLU-TN, and the public to know what we are doing, why we are doing it, and how much it costs. (Source: Independent Monitor Submission of Edward L. Stanton III and Butler Snow LLP, January 7, 2019).

The website was submitted to the Court on June 19, 2019, for review, launched on July 2, 2019, and announced in print and digital media via press release. The website features docketed and unsealed reports and selected Court orders. (Source: V. Public Engagement, November 2019 Quarterly Report of the Independent Monitor, November 21, 2019).

MPD may collect personal information—related or unrelated to the exercise of First Amendment rights—only in the course of a lawful criminal investigation and may share that information only with a governmental law enforcement agency that is already involved in a criminal investigation. (Source: §§ B(4), C(1), H (1)(2), Modified Kendrick Decree, September 21, 2020; The Independent Monitor’s Responses to Questions Regarding Potential Coordination Between The Memphis Police Department, Other Law Enforcement Agencies, And Non-Law Enforcement Entities And Individuals, August 21, 2019) (See also Basics of the Consent Decree)

Yes, the City may not encourage, cooperate with, delegate, employ or contract with, or act at the behest of, any local, state, federal or private agency, or any person, to plan or conduct any investigation, activity, or conduct prohibited by the Modified Kendrick Decree. (Source: §H (2) and § I, Modified Kendrick Decree, September 21, 2020).

Investigations and intelligence-gathering which are reasonably unlikely to result in the collection of information about the exercise of First Amendment rights or interfere in any way with the exercise of First Amendment rights are permissible. They require no special authorization under Section G. Authorization is required for an investigation when the investigation is reasonably likely to result in the collection of information about the exercise of First Amendment rights or interfere in any way with the exercise of First Amendment rights. (Source: § G (1), Modified Kendrick Decree, September 21, 2020).

When it is determined that authorization is needed because the investigation implicates First Amendment rights, the Chief of Police – or the chief’s designee – must first review the facts that form the basis for the investigation and any investigative techniques that are expected to be used during the investigation. The Chief or designee must then produce a written authorization, which must include four specific findings: The investigation does not violate the Modified Kendrick Decree; It is “unavoidably necessary for the proper conduct of the investigation” that the police collect information about First Amendment rights or interfere in some way with those rights; MPD has taken “every reasonable precaution” to minimize the collection of information or the interference with those rights; and MPD will use the “least intrusive technique necessary” to get the information in question. The authorization is valid for ninety days from the date it is issued. (Source: § G (6), Modified Kendrick Decree, September 21, 2020) (See also Basics of the Consent Decree).

The Court approved language in the Modified Kendrick Decree, stating that certain crimes occur exclusively on the Internet that are criminal but can tangentially implicate the First Amendment. For these crimes, authorization is not needed before investigation. Certain crimes falling into this category include: Child pornography; Identify theft; Unauthorized intrusions into private networks, deployment of computer viruses; and Cyberbullying. Investigations of these crimes will still be audited biannually by the Chief of Police or the Chief’s Designee. Furthermore, if an investigation of this type does directly implicate First Amendment activity or may result in the gathering of First Amendment-related intelligence, the authorization requirements apply. (Source: § G (8), Modified Kendrick Decree, September 21, 2020).

MPD may not engage in First Amendment-related intelligence. § C(1). MPD may not operate or maintain any office for the purpose of engaging in First Amendment-related intelligence. § C(2). MPD may not electronically intercept, record, transcribe or otherwise interfere with any communication for the purpose of First Amendment-related intelligence. § D. MPD may not recruit, solicit, place, maintain, or employ an informant for First Amendment-related intelligence § E. MPD may not infiltrate or pose as a member of any group or organization exercising First Amendment Rights for the purpose of First Amendment-related intelligence. § E. MPD may not do anything for the purpose of deterring the exercise of First Amendment rights, nor may they do anything that reasonably has the effect of deterring the exercise of First Amendment rights. § F(2). The City and the MPD may not (1) spread damaging, derogatory, false, or anonymous information for the purpose of First Amendment-related intelligence, § F(1); or (2) record the name, photograph, or license plate numbers of people at lawful meetings or demonstrations for the purpose of maintaining a record, § F(2). MPD may not conduct or supervise any criminal investigations that may (1) result in the collection of First Amendment-related intelligence or (2) interfere with the exercise of First Amendment rights without the direct, written authorization of the Chief of Police. § G. MPD may not maintain personal information about any person unless the information is relevant to a lawful criminal investigation and collected in the course of that investigation. § H(1). MPD may not share personal information with any person or entity except another governmental law enforcement agency that is already engaged in a lawful criminal investigation. § H(2). MPD may not work with or use any other person or entity to violate the consent decree. § I.

Yes, but only for legitimate law enforcement purposes, and only so long as MPD does not improperly catalog and disseminate that information as prohibited by Section H of the Modified Kendrick Decree. (Source: § D(2), Modified Kendrick Decree, September 21, 2020).

The City worked with ACLU-TN and the Monitoring Team to develop a revised social media policy submitted to the court on December 21, 2019. The Court has not yet approved this policy. Once it is approved, the Monitoring Team will upload the policy as soon as possible.

Joe Oakley is the Deputy Chief of Information Systems and is responsible for overseeing information technology for MPD.

All law enforcement requests to Facebook go through Facebook’s law enforcement portal, established in 2012. A recognized law enforcement email domain is required to access the portal. Additionally, proof of a warrant, subpoena, or other legal process is necessary to obtain information via the portal. In the case of an imminent threat to life or a serious risk of bodily injury, the police can access data through the portal if the police show that they will later obtain proper legal process. The law enforcement officer must follow up with proof of that process. Facebook proactively reports certain information, such as sexually explicit imagery involving a child, to law enforcement. Facebook also has a process for informing law enforcement when a user appears likely to harm themselves or others. (Source: III. Progress Towards Ninety Day Goals, July 2019 Quarterly Report of Independent Monitor, August 7, 2019).

Yes, MPD can use undercover accounts on social media when investigating criminal activity. However, the Modified Kendrick Decree imposes certain restrictions on the use of these accounts. For example, MPD cannot create undercover accounts for the purpose of First Amendment-related intelligence. In addition, if First Amendment-protected information is gathered through the use of an undercover social media account, that information cannot be kept unless it is necessary to move a criminal investigation forward. Moreover, the MPD is required to put in place supervisory controls to ensure that all undercover social media accounts do not violate this Modified Kendrick Decree or are not used to infiltrate or identify groups expressing their First Amendment rights. (Source: § E(2) Modified Kendrick Decree, September 21, 2020).

Yes, MPD may record photos and videos with City-owned recording and photographic devices (including Body Worn Cameras) as long as the devices are not used for the purpose of First Amendment-related intelligence. More detail about what the MPD can and cannot do with recording devices is set out in the Modified Kendrick Decree. (Source: § H (3)(4) Modified Kendrick Decree, September 21, 2020).

Independent Monitor’s Website: The Independent Monitor solicits public feedback on an ongoing basis through the Independent Monitor’s website. In addition, the Independent Monitor provides status reports and updates on the website. The website offers several ways to contact the Monitoring Team, including via email and U.S. mail. Feedback: The Independent Monitor will compile and include public feedback in his reports to the Court. Community member identities will not be included. Media: Subject to the Court’s approval, the Independent Monitor, will make himself available to the media. Community Forums: To encourage transparent public dialogue, the Independent Monitor and the parties will hold community forums. Accessibility: If public health allows for in-person meetings, proposed community forum venues will be centrally located, close to public transit lines, and will provide ample accommodations for the public. Community forums will be available via streaming on the Independent Monitor’s website or conducted via Zoom or a similar platform if in-person meetings are not practical or feasible due to public health guidance. The Independent Monitor also will record and post video footage of all community forums on the Independent Monitor’s website. The Independent Monitor and the parties also will take steps to make available sign- and Spanish-language interpreters. Confidentiality: Community members will not be required to identify themselves to participate in community forums. Advertisement: The details of each community forum will be posted on the Independent Monitor’s website. Focus Groups: The Monitoring Team has conducted meetings with community groups and leaders in the form of focus groups. (Source: Joint Public Engagement Plan of The Independent Monitor and the Parties, May 24, 2019).

The Court invited direct public participation at the August 2019 hearing by requesting that interested community members submit statements about their concerns to the Court through the Monitoring Team. The Monitoring Team submitted to the Court all such messages from community members on September 26 and October 4, 2019. (Source: III. The Court’s Directions to the Monitoring Team at the April and August 2019 Hearings, November 2019 Quarterly Report of the Independent Monitor, November 21, 2019).

The first community engagement forum was held on July 11, 2019, at Mississippi Boulevard Christian Church. (Source: July 2019 Quarterly Report of Independent Monitor, August 7, 2019). The second community engagement forum was held on November 7, 2019, at Mississippi Boulevard Christian Church. You may view the recording here: https://www.youtube.com/watch?v=-99gFnB2kLg. (Source: II. Overview of the Monitoring Team’s Activities, November 2019 Quarterly Report of the Independent Monitor, November 21, 2019). The third community engagement forum was held on March 10, 2020, at Benjamin L. Hooks Central Library, 3030 Poplar Avenue, Memphis, TN. A fourth community engagement forum will be hosted on December 9, 2021, via Zoom. A fourth community engagement forum was held December 9, 2021, via Zoom.

Community forums/engagements are sessions during which community members can voice their complaints, concerns, and questions. In the future, the Monitoring Team hopes to include an education component, explaining: what the Modified Kendrick Decree is and requires, how the City violated the 1978 Kendrick Consent Decree, the Monitoring Team’s role in helping the City comply, and opportunities for the community to facilitate compliance and report noncompliance. (Source: V. Public Engagement, November 2019 Quarterly Report of the Independent Monitor, November 21, 2019).