Memphis Blogger, Activist Details Local Police Surveillance, Successful Federal Lawsuit

“WE HAVE A PROBLEM THAT AFFECTS THE WHOLE COUNTRY”

by Sharon Rondeau  |   The Post & Email

On Monday The Post & Email interviewed Fergus Nolan, the author of the Memphis Truth Commission blog, launched in 2016 after Nolan was arrested following his participation in a peaceful public protest.

“I was filming the police; it was a bogus arrest,” Nolan told us, with the charge ultimately dismissed.  “The cop never turned up in court to justify reasonable cause for the arrest.  It was expunged, and everything is all gone away.  But I took this very personally, so I started doing a police series looking into things the police were doing.”

A retired IT specialist and legal immigrant from Ireland 32 years ago, Nolan said that the Memphis Police Department (MPD) is taking issue with citizens’ First Amendment rights by criminalizing free speech and protected activity.  In an entry titled “Copwatch 1,” Nolan wrote that “MPD members seem to believe that they have a right to arbitrarily arrest members of the public who are not committing a crime, and then not attend the preliminary hearing to make the case go away.”

He expounded on his arrest and that of a second protester, Maureen Spain, on May 30, 2016.

Nolan has recently covered in depth on his blog a federal lawsuit filed by two women falsely accused of participating in a conspiracy to move drugs and other contraband into a local penal institution, a case covered by The Post & Email beginning in late 2017. Celitria Watson and April Malone were informed that they were placed under surveillance with a legal warrant but also believe that the MPD’s Organized Crime Unit (OCU) used a “Stingray” device to capture their communications with Kendrick Watson, Celitria’s brother.

“Stingray is not just an eavesdropping device,” Nolan wrote on his blog.  “It emulates a cell tower, and it has the capability of changing the cellphone signals.   Stingray conducts a ‘man in the middle’ hacking attack on the phones it is tracking, obtaining the encryption key and instructing the phones to downgrade their security protocols.   It can even be used to change the firmware on the device to hack the phone.”

The text messages Celitira and April exchanged with Kendrick were altered to make it appear as if they were part of a drug operation. While the identities of those who altered the texts have not been revealed, Celitria Watson had proof of the alterations in the form of a Google backup to her email account of every text she sent from her phone.

In July 2017, both women were dropped from the case, which involved 14 other co-defendants. During an interview last summer, Celitria told us that she was convinced law enforcement’s focus was actually her brother.

April Malone is Kendrick Watson’s girlfriend. Kendrick Watson ultimately accepted a plea agreement sentencing him to 23 years in prison, although he, too, claims that evidence against him was “fabricated.”

In his blog post on the Watson/Malone case, Nolan explained how he believes police went about altering the texts. He posted an interview with both women on YouTube and plans to follow their federal case to its conclusion.  A January 30 court conference has been scheduled in the case, Nolan reported.

Nolan has also focused on what he says is corruption within the Memphis City Council and police activity involving fraudulent Facebook accounts, also reported by The Chattanooga Times FreePress last month. “In response to a lawsuit from the American Civil Liberties Union in Tennessee, a white detective with the Memphis Police Department’s Office of Homeland Security testified earlier this year that he contacted hundreds of activists using a ‘Bob Smith’ Facebook profile where he posed as a person of color,” the paper reported on December 21.

Nolan considers such police activity “political surveillance,” a term invoked by the mainstream media and President Trump.  The OCU and Real Time Crime Center (RTCC) of the Memphis Police Department work in conjunction with Tennessee’s Fusion Centers, Nolan said, with funding for the latter coming from the federal government.

As well as constituting a local problem, Nolan said the MPD’s surveillance activities impact all Americans as evidenced by a successful lawsuit brought by the ACLU of Tennessee against the City of Memphis for placing individuals on an “A-List,” meaning a “police escort list.”

The list came to be known as the “City Hall Escort List.”  On February 17, 2017, WREG-Memphis reported that the list contained the names of 84 people.

The ACLU’s background on the recent case reads:

During the civil rights movement, Memphis police engaged in the questionable practice of gathering domestic intelligence on demonstrators and activists in an attempt to intimidate people from exercising their right to free speech and assembly. In a lawsuit filed in 1976 against the City of Memphis, the ACLU of Tennessee obtained the first court order in the nation forbidding the maintenance of domestic intelligence units that monitor the First Amendment activities of individuals. The order prohibits the “City of Memphis from engaging in law enforcement activities which interfere with any person’s rights protected by the First Amendment to the United States Constitution.”

In early 2017, in response to an open records request, the City of Memphis released a list of people who must be escorted by police when visiting City Hall. The list included names of individuals who had participated in protests, rallies or other free speech activities in the city. Many of those listed had no criminal record or history of causing disturbances at City Hall.

On February 22, 2017, four of the individuals named on the recently disclosed police escort list filed suit in federal court, alleging that Memphis is in several possible violations of the consent decree.

On March 2, 2017, ACLU-TN joined a lawsuit to enforce the 1978 consent decree and to put a stop to Memphis police surveilling protected First Amendment activities again.

On October 26, 2018 in a 46-page opinion, U.S. District Judge Jon McCalla ruled that “the ACLU-TN proved by clear and convincing evidence that the City is in violation of” the 1978 consent decree (p. 38) by neglecting to train MPD officers not to collect “political intelligence” on residents.

On December 21, McCalla ordered a monitor assigned to the MPD to “make sure Memphis police officers are not spying on protesters,” The Commercial Appeal reported.

Further to his May 2016 arrest, his discovery of the “A-List” and the evolution of the lawsuit, Nolan told us:

I was at city hall nine months later, in March 2017, which I wrote about on my blog.  I had been looking into corruption in our city, which is one of the most corrupt in the country.  While at city hall, one of the front-desk security detail came and tapped me on the shoulder and asked me to step outside in the foyer.  He was detaining me, basically.  One of the cops in the security detail told me that I needed to have an escort while in city hall.  I asked, “Why do I need an escort?” and he said, “Wait here.”  I waited about ten minutes, and a plainclothes cop showed up who introduced himself as Lt. Albert Bonner, who is the head of the city-hall MPD security detail.  He told me I had to have the escort because of what happened at the mayor’s residence.

This was referring to a December 19, 2016 event where about 10 or 12 people showed up at the mayor’s house and lay down in his front yard pretending to be dead; it was called a “die-in.”  The police were never called, so there were no arrests, but the police later called on Keedran Franklin, the organizer, and harassed him a little.

I wasn’t at that action, so when Lt. Bonner said it was because of what happened at the mayor’s house, I said, “I wasn’t there; it must be something else.”  So he said, “It must have been something you wrote on social media.”

That raised a red flag for me, because if it was on social media and wasn’t a threat, it was free speech.  That raised my hackles immediately.  I went home, wrote on the blog and put in an open records request for the list of people required to have an escort at city hall.  I distributed it to the media, and the media all put in the same request.  This was March 7, 2017.  On the 17th, the media broke that story, and it became probably one of the biggest two or three stories in Memphis that year.

To be honest, I’ve been shaking the tree a little bit.  When you’re trying to find information about police or any bureaucratic issue, you need to know what to ask for in your FOIA.  You can get the information if you know exactly what to request.  My technique has been to get in their faces and exploit the First Amendment right to the very edge.  It’s a technique that doesn’t get you a lot of friends, but it does get you a lot of information.

The press got on this, and it became a huge story.  There were 43 activists on that list, which we called the “A” list.  The press called it the “City Black List” most of the time, but they used “A-List” occasionally.  We managed to get naming rights over it and called it the “A-List.”

The ACLU got involved, and we still had the 1978 consent decree where police were busted for spying on civil-rights activists from that era.  It turned out that one of the lawyers on the case, Bruce Kramer, is still practicing law, and the ACLU brought a case showing that the city was routinely violating the consent degree.

We got a great judgment.  The judge in the case made the point that with social media being what it is and other electronic advances, there is a whole new set of areas that need to be covered by the First Amendment that police were routinely violating:  in other words, spying on people on social media.  He wrote the judgment in such a way so that it could be a precedent for the rest of the country.  He was producing a template based on our 1978 consent decree and his additional judgment from October saying that the consent decree needs to be strengthened in order to govern the powers of police in relation to social media.

In the end, he said, “This will be painful for MPD because being a pioneer is never comfortable.” He specifically wrote this to be a national precedent, although of course it depends on how it goes through the federal courts.

We have a problem that affects the whole country.  There are some 27,000 pages of documents on the case, and the police were doing really awful things.  They were impugning people based on gossip from Facebook and other places.  By process of almost total luck, shaking their trees and responding to their reactions, we discovered their process for harassing and spying on people via social media.  We had the court case where the cops were on the stand and we had discovery, and the ACLU lawyers did a great job.  They destroyed the city lawyers and completely took them apart, which is why they stopped calling witnesses at one point.  They threw up their hands after a couple of days of witness testimony and didn’t call the rest of their witnesses.  Even the photographs of the attorneys show it:  the ACLU guys are smiling and the city guys are skulking.

There are very few exceptions to the First Amendment.  I know exactly what they all are and I go right up to it.  I don’t issue threats.  The reason I got arrested was that I annoyed the police.

It was a very successful court case, so we have a template for discovering these issues locally and a legal template for correcting it.

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