by Alice Speri
January 20 2020,
6:00 a.m.
It’s been 10 months since
someone set an office building on fire at Highlander Research and Education
Center, a storied civil rights institution perched in the mountains of
northeastern Tennessee, but the investigation into the fire seems to have gone
nowhere. The charred remains of the collapsed structure are still untouched,
and the yellow tape blocking access to them has only recently come off. In the
parking lot next to the destroyed building, a symbol someone spray-painted in
black on the concrete the night of the fire is also untouched: It looks like a
hashtag, but with three intersecting lines instead of two.
That symbol is one used by
racist extremists in the U.S. and abroad. It was painted on one
of the firearms used by an Australian white supremacist who massacred
51 people at two mosques in Christchurch, New Zealand, just two weeks before
the fire at Highlander. The Anti-Defamation League traced the symbol’s origins
to a Romanian fascist movement dating back to the 1930s and 1940s. But while
the symbol is obscure to most, it has resurfaced in connection with the
Traditionalist Worker Party, a neo-Nazi group that was active in the U.S. until
recently. A year before it was sprayed in the parking lot at Highlander, the
symbol was also painted on “the
Rock,” a boulder at the University of Tennessee’s Knoxville campus, not far
from Highlander, used by students as a message board. Yet if the symbol was a
clue about who might have attacked Highlander, investigators — with the
Jefferson County Sheriff’s Office; the Tennessee Bureau of Investigation; the
Tennessee State Fire Marshal’s Office; the Bureau of Alcohol, Tobacco, Firearms
and Explosives; and the FBI — have not yet said so publicly.
Nobody was hurt in the March
29 fire in New Market, where Highlander sits on a hilly 200-acre campus with
stunning views of the Great Smoky Mountains. But it’s not the first time the
center has come under attack. For nearly nine decades, Highlander has offered
sanctuary to an array of racial, social, and economic justice movements,
hosting the likes of Rosa Parks, Ella Baker, Stokely Carmichael, and the Rev.
Martin Luther King Jr., as well as the activists who wrote the Movement
for Black Lives policy platform and immigrant rights and Palestinian
solidarity groups. But the center also has a long history of being targeted for
harassment and violence by government officials and racist groups. In 1961, as
anti-communist fearmongering gripped the country, the state of Tennessee seized
Highlander’s land and buildings and revoked its charter; in 1966, the Ku Klux
Klan firebombed its Knoxville location. After this most recent attack,
Highlander staff had few expectations that law enforcement officials
investigating the fire would give them answers about who caused it — but they
were taken aback by their questions.
When local police arrived on
the day of the fire, the first thing they asked Ash-Lee Woodard Henderson, one
of Highlander’s two co-directors, was “Are you beefing?”
“It was very clear to us that
that there was some feeling that we might have done something to instigate
this, versus white supremacy instigated this,” said Henderson, the first black
woman to lead the center. “At that point, I didn’t even know what the symbol
was or meant, but even when we did realize that it was a symbol of the white
power movement, it’s not like we’re out there doing a tit for tat with them.
I’m literally in a position where my very existence as a human is the
antithesis of what they believe in.”
André Canty, who works in development
and communications at Highlander, compared the line of questioning from police
after the fire to that following the killing of Trayvon Martin by George
Zimmerman in 2012 — or that often applied to black victims of police violence.
“What did he do to cause his own death?” said Canty. “You’re asking me, why did
your abuser abuse you? Why are racists doing racist things?”
But as federal investigators
joined local police in the months following the fire, the questions posed
to Highlander staff grew only more pointed and bizarre, as if they, and not
their presumed attackers, were under investigation. “Who do you train?” they
were asked. “Who funds you? Are you training protesters? Do you know antifa?”
“It was totally an
interrogation,” said Henderson. “Instead of an investigation that’s going to
produce information that tells us how we can make ourselves more safe from
white supremacist violence, what tends to be true, historically, is that these
are opportunities for the state to gather more information about who’s coming
to Highlander, what they’re talking about, what you train them on.”
Asked about those
questions, Jason Pack, a special agent with the FBI’s field office in
Knoxville, wrote to The Intercept that he was not “personally aware of those
issues,” but declined to comment further because the investigation is
“ongoing.” A spokesperson for the U.S. Attorney’s Office told The Intercept
that it is the office’s policy “to neither confirm or deny the existence of or
status of investigations.” Jefferson County Sheriff Jeff Coffey did not respond
to a request for comment. The Fire Marshal’s Office referred questions to the
Tennessee Bureau of Investigation, which has since taken over fire
investigations. A spokesperson for the bureau wrote in a statement to The
Intercept that “the cause of the fire remains under investigation.” The ATF did
not respond to a request for comment.
Policing Violence vs. Policing
Dissent
As white supremacists have
carried out a growing number of deadly attacks in recent years, the FBI has
come under mounting criticism for its failure to address the threat posed by
far-right extremist ideologies, whose adherents account for most of the
politically motivated violence in the U.S. At the same time, the bureau has
also been heavily criticized for devoting
large resources to surveilling
political dissent by groups and individuals, often of color, who pose
no threat but are critical of the government because they oppose official
immigration policies or demand police accountability.
The FBI’s preoccupation with
policing nonviolent critical ideologies while neglecting to investigate
ideologies tied to real, and increasing, violence was perhaps best captured in
an infamous 2017 threat assessment report warning law enforcement agencies of
the supposed rise of a “black identity extremist” movement targeting police,
which the FBI said had emerged on the heels of the Ferguson protests and in
response to “perceived racism and injustice in American society.” Yet as The
Intercept has reported,
and as a number of legislators, activists, and even law enforcement officials
have repeatedly pointed out, the black identity extremism category was a
product of the FBI’s imagination, assembled by cobbling together disparate,
isolated incidents with no connection between them other than the race of their
perpetrators.
For more than a year after the
assessment was
leaked, the FBI refused to disavow the categorization, even while failing
to point to any evidence suggesting that such an ideology existed in reality.
Then last year, as the backlash around the label persisted, and as ongoing
white supremacist attacks underscored the FBI’s seeming double standards,
bureau officials told legislators that they were doing away with a set of
earlier domestic terrorism categories in favor of four
larger ones. The FBI’s fictional black identity extremists would now be
lumped together with white supremacists under a new “racially motivated violent
extremism” category. An FBI spokesperson declined to comment for this story,
referring The Intercept to two congressional hearings in
which bureau officials testified on the issue. “The term I’m using is
racially motivated violent extremist for the very fact that we’re focused on
the violence; we’re not focused on the skin of anyone,” Michael McGarrity,
assistant director of the FBI’s Counterterrorism Division, said in
response to a legislator’s question about the FBI’s focus on supposed black
identity extremists as opposed to white supremacist extremists. “‘Black
identity extremist,’ since I’ve been here, we have not used that term,” added
McGarrity, who was appointed to his position in February 2018. “But also,
you’re not hearing me use ‘white supremacists’ as a group. I’m focused on the
violence. … Ideology itself is a First Amendment right.”
As The
Intercept noted at the time, that false equivalence made it virtually
impossible for the public to know whether the FBI was devoting resources to
investigating real threats of racist violence or social and racial justice
groups critical of government. And while the FBI’s reclassification has already
been replicated at the local level — for example, by the New York City Police
Department, which recently announced a “Racially
and Ethnically Motivated Extremism” unit — civil rights advocates warn that
collapsing real and imaginary extremist ideologies risks providing cover for
the ongoing targeting of nonviolent activists and activists of color.
“It’s egregious to compare
black dissent to what white nationalists are doing in this country and to what
white supremacy is doing in this country,” said Henderson. “Let’s just be
real: If there’s a fear about domestic terror, white men are killing lots
of people. And we’ve got to figure out how to deal with that.”
Rachel Levinson-Waldman, a
senior counsel at the Brennan Center’s Liberty & National Security Program,
told me that using the “racially motivated” umbrella term without distinction
“is a way to both hide the fact that there isn’t really black motivated violent
extremism and at the same time, to justify the continued investigation.”
In fact, civil rights
advocates have argued against using recent white supremacist attacks to call
for more
domestic terror laws and mass
policing of any ideology, cautioning that trampling on constitutionally
protected speech in the absence of criminality or national security threats
risks strengthening authoritarian systems that will inevitably blow back on
government critics and minorities. But there is a fundamental difference
between policing ideas and policing crime and criminal intent. The fire at
Highlander, where the investigation of a criminal, violent act appears to have
morphed into a broad inquiry into the political work of the victims, offers a
troubling example of the obfuscation enabled by the “racially motivated
extremism” label.
“There was a criminal act and
there was presumably criminal planning that led up to it, which is different
from surveilling simply on the basis of speech and ideology,” said
Levinson-Waldman. “The focus on the victims of that act and their political
work and organizing is incredibly distressing. It’s so backwards, and it’s so
counterproductive.”
The Memphis Blacklist
While the fire at Highlander
remains unsolved almost a year after it occurred, 400 miles away, on the
opposite side of the state, a
recent lawsuit against the city of Memphis has exposed the lengths to
which police will go to surveil the free speech activities of Black Lives
Matter and other activists who have committed no crimes.
In 2018, a federal judge in
Memphis ruled that the city’s police department was in violation of a
decades-old federal consent decree prohibiting local law enforcement from
gathering “political intelligence.” The ruling followed litigation that
revealed that Memphis police’s Office of Homeland Security, a unit set up
following the 9/11 attacks, had engaged in widespread and systemic surveillance
of the constitutionally protected activities of individuals protesting, among
other things, the killings of black men at the hands of police. The litigation
strikingly revealed how the domestic political surveillance efforts ramped up
after 9/11 evolved in the post-Ferguson era. It exposed a fake
Facebook profile police had created to “friend” activists and monitor
their discussions and plans. It showed that police had used software designed
to comb social media chatter and map connections between individuals based on
their digital interactions. It revealed that police had been compiling a series
of “joint intelligence briefs” on local activists, including pictures,
comments, and details about events they planned to attend, which they then
distributed as often as three times a day to other law enforcement agencies,
including the FBI, the military, and a number of large local businesses, such
as FedEx. And the litigation revealed that police had also monitored church
services, candlelight vigils, even a black-owned food truck festival and a
school supplies giveaway.
The lawsuit itself followed
the discovery by local activists of a “blacklist” of 84 individuals whom the
city had secretly barred from entering City Hall without police escort. The
list included some of the city’s most vocal organizers, but also some whom police
had found to be merely “associates”
of known protesters, as well as the mother and aunt of Darrius Stewart, a
19-year-old black man killed by Memphis police during a 2015 traffic stop.
Keedran Franklin, a
33-year-old activist and organizer, and one of four named plaintiffs in the
lawsuit, said he’s always suspected that police were keeping tabs on him, but
first had those fears confirmed in early 2017, when a friend who was working as
a security contractor for the city told him that officials “have a book on
y’all,” Franklin recalled. “They have pictures, known associations, your
picture is on the wall.”
Franklin had first become
active in his community by working on violence interruption programs and
collaborating with the former mayor’s “guns down” initiative, but he had become
suspicious of the information the city kept on the youth he worked with and grew
increasingly skeptical of what he now believes was a surveillance effort masked
as community outreach. “I felt like I was helping them prey on us,” he told me.
Franklin soon started organizing protests and direct actions, first with the
Fight for $15 campaign to raise the minimum wage and then, after the Ferguson
protests and the killing of Stewart in Memphis, against police violence.
But Franklin never threatened
police or anyone else, he stressed, and Memphis Police Director Michael
Rallings even gave him his personal cellphone number after Franklin helped
negotiate with police during a protest, offering to help disperse protesters if
police promised not to arrest anyone. “Why would he allow me to have his number
if I’m this much of a threat?” said Franklin. “It was all political, flat out
political. They had no criminal investigations around any of us.”
When the lawsuit yielded
dozens of joint intelligence briefs and other internal police documents,
Franklin’s name, photo, and activities were all over them. “Keedran Franklin
has participated in several demonstrations/protests and is associated with a
group called Memphis Coalition of Concerned Citizens,” reads one of several
police documents about Franklin, which also lists other individuals he is “closely
associated with” and notes that they espouse several causes, such as “Free
Palestine,” “Fight for $15,” and “Standing Rock.”
Memphis offers the most
detailed picture we have of what domestic political surveillance looks like in
practice.
Franklin already knew he was
being monitored; he had been followed by unmarked cars for years, and he often
confronted police and livestreamed the exchanges with his phone when he saw
them watching him. But the extent of the surveillance revealed in the documents
surprised even him: Some memos listed people’s height and weight, Social
Security numbers, and in one case details of an individual’s mental health
history. And Franklin realized when he learned of the joint intelligence briefs
that a new neighbor who had told him that he looked familiar had been receiving
the memos police had written on him and distributed widely. “I’m not this
terrorist they are painting me to be,” he said. “I got flaws, I’m not perfect,
but I’m no damn terrorist.”
Police surveillance efforts seem
to have picked up after Stewart’s killing in July 2015. A year earlier, the
protests over the killing of Michael Brown in Ferguson, Missouri, had kicked
off nationwide rallies against police violence. And a couple of months before
Stewart was killed, protests over the death of Freddie Gray in Baltimore had
reignited anger at police, while also putting local and federal law enforcement
on high
alert. In Memphis, a majority black city where distrust of police runs deep
— “and for good cause,” as a local lawyer put it — tensions came
to a peak on July 10, 2016, after the police killings of Alton
Sterling in Louisiana and Philando Castile in Minnesota, when hundreds of
peaceful protesters shut down the Hernando de Soto Bridge that crosses the
Mississippi River to connect Tennessee to Arkansas.
That protest — the largest in
Memphis’s recent history — kicked
off a series of others in the following months, and the police
department’s Homeland Security office, which had previously focused on domestic
and international terrorism threats, “shifted almost entirely to obtaining
intelligence about planned large events with the potential for violence against
large scale disruption of traffic or commerce,” the American Civil Liberties
Union wrote in court filings. In an internal slide made public through the
litigation, police even called 2016 “A Year of Social Unrest Reminiscent of the
late 1960s and early 1970s,” just as they resorted to the surveillance tactics of
those years.
Through 2016, officers
monitored activists as they protested racist coverage by the local paper,
rallied outside Elvis Presley’s Graceland mansion, and staged a peaceful
“die-in” outside the home of Mayor Jim Strickland in December 2016.
It’s that die-in in particular that prompted officials to add activists and
protesters to the blacklist — or “escort list,” as they called it — which up to
that point had mostly included former employees or individuals accused of
threats or disorderly conduct. The mayor personally authorized the addition to
the list of many of the protesters who had lain down in his front yard.
Ursula Madden, the chief communications
officer for the city of Memphis, challenged the description of the protest as
“peaceful,” saying that protesters “showed up at the mayor’s home with their
faces covered, climbed in the trees on his private property, tried to open the
doors to his house and peeked into the windows while his family was inside
sleeping—all while recording it on Facebook live and making threatening
comments.”
But both the blacklist and the
police intelligence operation directed at protesters violated a 1978 consent
decree with the U.S. Justice Department that Memphis had entered after it was
found to have illegally compiled dossiers on anti-war and student activists
through the 1960s and 1970s. While the Justice Department has entered into
dozens of such agreements with police departments across the country in an
effort to bring them in line with federal civil rights standards, most decrees
have focused on excessive force or discriminatory policing. The Memphis consent
decree is the only one nationwide that focuses on the issue of political
surveillance. And because of the thousands of pages of documents and the public
testimony produced by the recent lawsuit, Memphis also offers the most detailed
picture we have of what domestic political surveillance looks like in practice.
“Memphis is a microcosm of
what we assume is happening across the country,” said Levinson-Waldman, who
serves on a federal monitoring team a judge put in place after he found the
city to be in violation of the decree. “It’s the clearest window that we have
into what kind of surveillance is going on.”
One Big Plantation
In Memphis, no one can
possibly forget that the police are watching. If across the country security
cameras have become a ubiquitous reality of modern life, whose presence is easy
to forget as they blend into the urban landscape, Memphis’s cameras light up
the city with piercing blue flashes that flicker endlessly from utility poles
like thousands of blinking eyes.
Memphis’s distinctive “SkyCop” cameras — more than 2,000 in 500
locations across the city — feed millions of hours of footage a year into
the city’s Real Time Crime Center. The cameras are another legacy of the war on
terror, as officials in Memphis, a major commercial hub, first looked to boost
video surveillance capabilities to protect critical infrastructure. In fact,
the cameras have largely been used to deter crime, but the lawsuit revealed
that they were also used to surveil protesters in violation of the decree.
“It’s a police state, for real,” said Franklin, of the cameras. “They started
taking that equipment and technology and turned it inward, onto us.”
But there are other reminders
of police surveillance. Antonio Cathey, another well-known Memphis activist and
organizer with Fight for $15, told me that at a turkey giveaway some friends
and family had organized before Thanksgiving, police stood at a distance
watching people with binoculars. And that’s nothing compared to what happened
to Cathey in August 2018, on the very first day of the consent decree trial.
Cathey was in court watching the proceedings when his grandmother called to
tell him that police had pushed their way into her house and, across the
street, that of his uncle.
When Cathey raced there, he
found dozens of officers from various agencies, many in riot gear and face
masks. The officers had raided the homes and issued his uncle a citation after
they found a trace of marijuana in his car’s ashtray — not enough to justify an
arrest. “They tore the house completely up,” said Cathey, adding that he had
been terrified for his grandmother. “I told her, Don’t open the door for them.
Every guy with a badge and a gun is not a good cop.”
Cathey, who recognized one of
the officers from protests he had attended, repeatedly asked police why they
were there, but all they told him was, “We know all about you” and “We know
exactly who you are.” A neighbor pointed to a light pole on the street that he
said municipal workers had come to fix in the early hours of the morning, even
though it didn’t appear to be broken. There was a box on the pole with black and
yellow tape, and a sign warning, ‘Danger, don’t touch.’ But Cathey could see a
camera lens behind the tape.
That’s when it clicked for him
that the raid was no coincidence. “We just had court downtown,” he said. “I see
what’s going on. If they can’t get to you, they’ll get to your family.”
Madden, the city spokesperson,
said in a statement that the incident was “unrelated” to the lawsuit.
Since then, relatives have
told Cathey that they support him but wish he would stop going to protests.
“I’m not going to stop doing this,” he said. “I have the right to do this, and
[police] are not going to stop me. If they’re looking for something, I’m open,
it’s right on my Facebook page.”
But it’s not just activists
who are learning to live with a surveillance apparatus they assume to be
ubiquitous. Journalists and lawyers in Memphis whisper when they speak in
public places. They get suspicious when a car remains behind them after a
couple of turns. When I met in a cafe with Wendi C. Thomas, who for years wrote
a column for Memphis’s largest newspaper before recently starting the
independent news organization, MLK50: Justice
Through Journalism, she kept watching her back before asking if we could
speak in a more private place. “I know when I talk to people who aren’t from
Memphis that I sound crazy,” she told me. Then, citing a phrase others have used to
describe Memphis, she added, “This place is one big plantation.”
Thomas, who as the Commercial
Appeal’s first black female columnist endured years of threats of violence from
readers, including death and rape threats, said she discovered the Memphis
police had been tracking her social media pages in the middle of the consent
decree trial, which she was covering. Thomas was looking down at her notebook
when she heard an officer who was testifying about the fake identity he created
to friend activists on Facebook read her name out loud, twice, from an exhibit
page. “I looked up and was like, Did he just say my name? Why would they be
monitoring me?” she said. Thomas immediately filed a public records request for
her name and that of three other female journalists, including the photographer
for this story, whose name had come up in testimony. It took the city 433 days
to respond.
Thomas believes that she and
the other journalists came under surveillance because they were in contact with
activists. “I think it speaks to the trust that we have built, intentionally,
with activists and organizers,” she said. “The fact that you have sources is
proof that you’re a good journalist. For some of us who have a broad variety of
sources, including those in communities that are marginalized, it’s proof that
we are doing our jobs. But that also makes us a target. If more journalists
here in Memphis saw that as part of their job, maybe it would be harder for the
city to target all of us.”
There is little question that
the targeting is real. As The Intercept has
reported, Memphis police in 2018 arrested undocumented journalist Manuel
Duran, who ran a local Spanish-language news site, while he covered a protest
to commemorate the 50th anniversary of Martin Luther King Jr.’s assassination
in the city. When the charges against Duran were quickly dismissed, instead of
releasing him, police turned him over to officials with Immigration and Customs
Enforcement, who detained him for over a year. While a number of activists were
also arrested at the protest, several other reporters who were there were not.
And Duran, who was wearing a press badge, appeared to have been singled out. He
was well known to local police, which he had covered critically, and in his own
video of the incident, an officer can be heard saying, “Get him, guys” and
pointing in Duran’s direction. Then officers grab him even as two activists try
to shield him and scream, “He’s a reporter.”
In a statement, the city’s
spokesperson wrote that “officers did not know Mr. Duran, or know that he was a
member of the media,” and that he was “one of many people arrested for blocking
traffic.”
“History doesn’t rhyme, but it
echoes,” Thomas said about the episode. “It’s disturbing: The day before the
50th anniversary of King’s assassination, they’re out there arresting
journalists and organizers.”
Police surveillance continued
even in church. Rev. Earle Fisher, a pastor at the city’s Abyssinian
Missionary Baptist Church and an outspoken
community leader, said a meeting he hosted at the church after the 2016
bridge protest had also been monitored by police. Fisher said people there had
joked about the church being bugged, but he was nonetheless shocked to learn
from a
local news outlet that his church was one of the spaces that law
enforcement was watching after the Tennessee Department of Homeland Security
had warned Memphis police that “gangs, home grown extremists and criminals”
could use legal protests as cover to incite violence. Fisher said that if there
was a real threat of violence at the church, police should have told him — but
they never did.
Fisher first realized how far
the city would go to monitor critics when he noticed “Tennessee Department of
Homeland Security” pop up on his listed Wi-Fi networks at home. Once, after he
wrote a public letter to the city’s district attorney about the killing of
Darrius Stewart, a friend in law enforcement warned him to “keep his nose
clean” because the DA “ran his profile to see if anything came up.” “If you
know anything about history, these types of things are always going to happen,”
said Fisher. Now every time a phone call drops, he just thinks, It must be
them.
But Fisher added that he and
most activists he knows have simply taken note of the surveillance and
continued to do the work.
“When you are somebody who has
been clearly committed to advocating against an unjust status quo, then you are
going to find yourself at odds with any entity that’s been constructed to
protect the status quo,” he said. “I know I’m on the right side of history, I
know I’m doing this for the right reasons, and I know, based on my
constitutional rights, that I’m doing this the right way. At some point, you
just hope it breaks through.”
A City of Spies
Memphis has a long history of
both activism and government surveillance. The city was a focal point for the
labor and anti-war movements, and it’s there that King marched
for the last time in a rally in support of a sanitation workers’
strike in 1968. At the height of the civil rights movement, around 1965, the
Memphis Police Department established a Domestic Intelligence Unit that began
to infiltrate and keep secret dossiers about citizens engaging in
constitutionally protected political activities, from vigils against the
Vietnam War to union efforts. Much like the FBI was doing at the same time
under the now-infamous COINTELPRO program, the Memphis Police Department targeted
the ACLU, the NAACP, the Southern Christian Leadership Conference, and various
workers groups. Without warrants, it monitored their mail and phones and kept
files on their activities, relationships, and sexual preferences, relying on a
network of undercover agents and informants to gather intelligence on
unsuspecting individuals.
The extent of the DIU’s
surveillance was finally exposed in the mid-1970s, when Memphis State student
Eric Carter discovered his roommate had been an undercover officer. When Carter
demanded to see the files police had kept on him, the city incinerated them. As
it became clear that officials planned to destroy all evidence of the DIU’s
work, the ACLU intervened, represented by Memphis civil rights attorney Bruce
Kramer, and requested a federal court to stop the city from destroying more
evidence. But before the order could be served, Mayor Wyeth Chandler ordered
the DIU terminated and “ten filing cabinets of photographs, reports and
documents compiled over a nine-year period … stuffed into garbage bags by DIU
staff, taken to city’s Scott Street incinerator, doused with fuel and burned,”
according to the ACLU’s
retelling of the incident. That’s when the ACLU filed Kendrick
v. Chandler, a class-action lawsuit that in 1978 led to a federal consent
decree banning the city of Memphis from “engaging in law enforcement
activities which interfere with any person’s rights protected by the First
Amendment.” Even in connection to a criminal investigation, the order
continued, “the City of Memphis must appropriately limit all law enforcement
activities so as not to infringe on any person’s First Amendment rights.”
Since then, Kramer has
periodically checked to make sure that police were abiding by the ban, but it
was in the aftermath of the Ferguson protests and the killing of Darrius
Stewart that it became evident police were brazenly violating the decree. When
activists learned of the blacklist — after one of them showed
up at City Hall and was told that he couldn’t enter without a police
escort — Kramer filed a new lawsuit on behalf of Franklin and three others,
accusing the city of violating the Kendrick decree. The ACLU joined the suit
after the judge in the case indicated that the four were not part of the
original 1976 lawsuit and therefore couldn’t bring the claim, an interpretation
Kramer vehemently contests.
For Kramer, there is little
difference between today’s surveillance and what the city of Memphis engaged in
half a century ago. “The basic principles are the same: People have a First
Amendment right to protest and a Fourth Amendment right not to have these
dossiers kept on them,” he told me. “In the ’70s, and even before then, in the
’60s and ’50s and ’40s, they were worried about communists, and then they were
worried about the Black Panthers, and then they were worried about the
Weathermen, and then they were worried about the civil rights people. There is
no doubt they fear the activist community — black and white.”
Despite being under federal
court orders, the Memphis Police Department never put in place guidelines or
training to make sure that officers wouldn’t conduct political surveillance.
And when attorneys started deposing police as part of the recent litigation,
they realized that “there was a complete ignorance amongst the entire
department about the existence of the decree,” said Thomas Castelli, legal
director of the ACLU of Tennessee.
The week before the trial
started, the city also filed a motion to modify the terms of the decree, which
it argued was written before the internet and surveillance technology and was
inapplicable to today’s policing methods. After Judge Jon McCalla of the U.S.
District Court for the Western District of Tennessee found the city in contempt
of the decree, he brought in a federal monitoring team that’s currently in the
process of negotiating guidelines, trainings, and an auditing mechanism the
police department must follow going forward. But the city has also continued
to argue that the decree is obsolete and makes it harder for police to
do their job — an argument that McCalla refuted
in clear terms last November, when he denied a new request by the
city’s lawyers to modify the terms of the decree. The decree, McCalla wrote,
“acts as a bulwark, ensuring that the City’s surveillance practices do not
cross the line from being a powerful weapon in the fight against crime to
becoming an intrusive tool that improperly interferes with its residents’ First
Amendment-protected activities.”
The drawn-out process and the
city’s apparent backpedaling have frustrated activists, and two recent
community meetings held by the monitor have been heated. “This is not like
we’re two parties and we have to mediate a fight,” said Franklin. “The city
administration and police force violated our constitutional rights. They’re in
the wrong and need to be treated as such. … They still never apologized.”
Franklin, who became a father
in November, said he fears that the judge’s ruling and the monitoring team
won’t be enough to stop police from harassing him. “I don’t want my son to be
under the scope of Big Brother like a Fred Hampton Jr.,” he said, referring to
the son of Fred Hampton, the young leader of the Black Panthers killed by
Chicago police in 1969. “I should not have to live in fear of me and my son
being surveilled. My son should not have to live in fear of that.”
According to Madden, “the City
is complying with the consent decree. However the City has the right to seek
modification of the consent decree, which is 40 years old, and is not
consistent with best police practices to provide safety in the 21st century.”
In a recent interview
about the decree with
a local media outlet, Rallings, the police director, also argued that
the decree is outdated. “In 1978, nobody wore seatbelts,” said Rallings. “Well,
we learned that seatbelts save lives, so everybody knows it’s click it or
ticket. So we found that something that was done in the ’70s we probably need
to go revisit and modify and make it apply to modern police work, and that’s
all we’re asking.”
But Rallings also connected
Memphis’s surveillance efforts to the warnings local police have been getting
from federal law enforcement, particularly following the killings of eight
police officers during protests in Dallas and Baton Rouge in 2016. “That was a
peaceful protest, until a gunman opened fire,” said Rallings. “If we think
about the number of threats that we are receiving, information from the FBI
that individuals were infiltrating peaceful protests and had nefarious intents.
… We had an obligation to protect our citizens.”
In fact, documents obtained in
discovery show that police were regularly distributing intelligence briefings
that compiled news coverage of incidents of violence against police officers in
other cities with information gleaned from social media about rallies and
actions planned in Memphis — even though there was no connection between
them. Other documents show that round-the-clock social media monitoring of
Memphis-based activists yielded no evidence that they posed any threat.
“There’s this kind of
connotation here, whether they intended that connotation or not, and it’s going
out to pretty much every cop in the city,” Castelli said. “I think it’s just
indicative of what’s going on all over the country with this: law enforcement
that is concerning itself more and more with what people are saying, and
particularly with what they are saying about law enforcement. … There seems to
be a theme, and it fits with the larger antagonism between activists for police
reform and the police that are supposed to make sure they can say what they
want to say.”
Some activists noted that
police surveillance of police critics and protests against police violence was
particularly frustrating when compared to police’s hands-off treatment of
far-right groups that have also rallied in Memphis and across Tennessee.
“One of these is not like the
other,” said Fisher, the pastor. “But here’s a basic thought: Treat us the same
way you treat the white supremacists when they come to town. … This is a
concrete choice, them saying, ‘No, we’re not going to provide you with the same
constitutional rights and privileges as we would provide the Sons of the
Confederate Veterans.’”
As it happens, Tennessee has
long been a hotbed for the white nationalist movement. “It seems to be viewed
as a friendly place for white supremacists,” said Castelli. Halfway between
Highlander and Memphis is the town of Pulaski, the birthplace of the Klan, and
in recent years the state hosted 20
percent of the country’s white supremacist gatherings and events,
according to the Anti-Defamation League. And while Memphis and the Appalachian
mountains where Highlander is located are very different demographically and
politically, activists from both communities recognize their experiences as
being part of the same criminalization of black dissent in a state that has a
long history of both civil rights struggles and white supremacist backlash.
“What’s absurd is that they
are spending so many resources on that sort of thing across the state in
Memphis, a black city, when literally white supremacists are firebombing
buildings over here,” said Highlander’s Henderson. “Why are you surveilling
Keedran? Why are you surveilling me? What did I do? If the only answer you have
is that we are black and we disagree with the power structures that are harming
our communities, then how is this any different than McCarthyism? How is it
different than COINTELPRO?”
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