Friday, November 24, 2017

Chipping Away at the First Amendment in Memphis, USA

“No single encroachment upon liberty, considered alone, ever seems worthy of great effort to destroy. Ultimately, the established precedents justify the greater invasion, and the aggregate of these tyrannies become unbearable. Then comes the revolution…”

Free Speech for Radicals: Seven Essays  
--Theodore Albert Schroeder

When the First Amendment is conquered and handed over to der Trump or such a future embodiment, it will not have happened with advance notice, parades in the street, or Blue Angels flyovers. It will be death by a thousand cuts. 

This is what we are witnessing in America, especially since Sept. 11, 2001, and now primed for acceleration in the Trump era. 

The City of Memphis is not exempt.

A recently proposed replacement of the current “Parades and Public Assembles” ordinance, Chapter 12-52, has drawn attention, partly because it has been pitched as less than how it reads. 

Link to newly proposed ordinance:

Link to existing ordinance which would be replaced:

“This only applies to parades and races,” City Council member and ordinance sponsor Reid Hedgepeth told the City of Memphis Public Safety Committee on Tuesday when only committee members Worth Morgan, Hedgepeth and Mativius Jones were in attendance. The ordinance passed unanimously out of committee and will begin its three-reading trek through the larger City Council on Dec. 5.  

Hedgepeth said citizens had complained to him about 3K and 5K races screwing up traffic in neighborhoods. One family complained that streets were so blocked that their child missed his Saturday morning sports event. Thus, the new ordinance requires that parade and race organizers apply with the city no less than 90 days before their proposed events and that they must give notice to affected neighbors, receive negative feedback and pay the police department for its costs. 

People unable to make it to a soccer match because of marathon runners in the streets might not be the only ones affected by this revised law, which is headed, “Parades, Races and Public Assemblies.”  Those desiring to partake in “public assemblies” are also required to make sure it’s OK with the neighbors, pay police for costs and get permits for any public gatherings. 

Here are some of the differences between the existing ordinance and what is proposed, and the usurpations of the First Amendment, small and large, which could be used to block and make difficult future freedom of assembly in Memphis. 

Permit 25 Persons or Less
“Public Assembly” definition is changed from “a gathering of 25 persons or more” to “a gathering…” of no number specified. So, that means two or more?

Ask the Neighbors
Organizers of an event which involves movement of the group must post for seven consecutive days notification to “affected residents and businesses along said route” and file with the city its plan for such notification.  The new ordinance also would require the permits office to notify said residents and businesses. A condition of the permit considers whether MPD has received “written or verbal opposition from affected residents.”

Permit Filing Deadline
The ordinance for public assemblies is changed from 14 business days to 15 in advance of the event.

Spontaneous Events
Present ordinance waives the 14-day thing if an assembly is a “spontaneous event, occasioned by news or affairs coming into public knowledge within three days of such public assembly.” The proposed ordinance calls for seven days, so in this way it is less restrictive than the present law. 

For example, after the city first said it would deny a Feb. 1 assembly protesting Trump’s anti-Muslin immigration order, it changed course and tried to save face by saying the assembly was allowed under the “spontaneous” clause. Be that as it may, how is a political body put in place to adjudicate what is sudden news or not? 

Nonrefundable Permit Fee
The current fee is $25; the proposed ordinance states a fee of $___ left blank. Where “closure of public streets or diversion of the normal flow of vehicular traffic” is required, an additional nonrefundable fee of $100 – versus $50 currently – is required. 

Explain Your Lane
A new provision requires that the permit applicant submit a statement justifying the need to “occupy an entire rather than a portion of a pedestrian or vehicular right-of-way.”  

The Price of Protest
A provision of the current ordinance states the applicant must pay for any police protection deemed necessary by the police director. The newly proposed ordinance adds details about the applicant paying for police services. We do not know of any instances when this has been pushed by MPD in assemblies over injustice or public policy issues. 

However, language in both the present and proposed ordinances provides the police director with the leeway to deny a permit if the applicant does not pay for police to show up. The idea of policing an event which blocks or congests traffic should be just for that – directing traffic, not for policing free speech as we have seen.

One problem with all of this is the city’s paranoia over so-called “protests.” This has needlessly cost the city a lot of money as police have massively overreacted with personnel and even military equipment to such events as July and August 2016 protests outside Graceland; a protest of the Diamond Pipeline on MLK Day this year at the Valero Refinery, and an Aug. 19 protest of Confederate statues at UT Health Sciences Park, where a 9,500-pound bronze statue of Rebel General Nathan Bedford Forrest rides high. 

The city also pays when its practices get it sued as it now has legal fees and exposure for police turning away African-Americans who sought to attend the 2016 candlelight vigil at Elvis Presley’s former home.

Out of 28 persons arrested at those three locations, every case out of Graceland and UT Health Sciences Park has been dismissed, several when officers did not show up at preliminary hearings.  Five cases out of 12 persons arrested at Valero were dismissed, including one independent journalist, one observer recording police with a cell phone and three who were standing on the sidewalk. 

Those arrests were prompted by free speech and public assemblies which discomforted the status quo. One University of Tennessee officer who made two arrests at the Rebel statue wrote in his affidavit, “an unlawful protest was underway.”  City attorney Bruce McMullen later claimed no one was arrested for protesting but for violating the law.  What law was that if all cases were dismissed? 

Police Move in to Arrest Rebel Statue Opponents Aug. 19, 2017

In the case of four persons remaining from 12 originally arrested at the Valero Refinery on MLK Day, the Shelby County District Attorney asked them to pay $24,000 to compensate emergency services in order to have their cases dismissed. Such an offer – extortion? -- was “illegal,” according to defense attorney Michael Working, and the four are going to trial in January. 

The four “water protectors” were chained together through concrete-filled barrels in the Valero entrance and exit driveways.  The four did not take the DA’s “deal” to come up with $24K as a get-out-of-jail pass in October.  Those charged, by the way, are being prosecuted for a Class C misdemeanor, “obstructing a highway or passageway,” which along with disorderly conduct are go-to charges for police when no specific laws are being violated. It is rare that a Class C misdemeanor would go to trial, but the defendants are unwilling or unable to buy their way out of it, and the DA is apparently too set on making an example of people who would embarrass a multinational corporation about its preference for oil over water. 

Valero Pipeline Opponent Olivia Ramirez Awaits Court Fate at 201 Poplar 
Does the DA’s move foreshadow that the city’s policy is shifting to charge citizens for police services in public assemblies which may involve political protests? 
The proposed ordinance also interjects City Council where its authority was not asserted before, such as to arbitrate opposition to a permit and to give “feedback” in denying an application.  

With this newly proposed ordinance on public assembly, its greater fees and requirements imposed on citizens, it appears the price of the First Amendment in Memphis is going up.

Broad Latitude for the Authorities
Regardless of how the permitting policies have been enforced in the past, will be in the future, or if the permit ordinance would discourage First Amendment practitioners from even trying, there is ample language in the law to allow for capricious denials and limitations based on political and other discretionary metrics. 

For instance, the police director has broad authority to revoke a permit “instantly” when an emergency elsewhere makes police unavailable for the public assembly if there would be an “adverse effect upon the welfare and safety of persons or property.” What makes an “emergency” and what affects “welfare and safety” are solely determined by the police chief.

Another for instance: Any person in a public assembly may not be engaged in disorderly conduct – but police can claim almost anything is “disorderly conduct” as a catch-all charge, much like “obstructing a highway or passageway.” Those are the two Class C misdemeanor charges typically put to citizens who are arrested for protesting – those charges usually are dismissed, but the effect of police moving in to make arrests is that the public assembly is stopped. 

How may these clauses be interpreted in the future?

This year some gatherings – such as the April 4 march down pedestrian-only Main Street in commemoration of the murder of Dr. Martin Luther King Jr. and the Silkies Hike for veterans' mental health April 22 through Overton Square to downtown– have obtained permits, and some events have not, such as the March 10 event organized by local indigenous Americans in support of Earth and water protections and opposing the Dakota Access Pipeline. 

Police Prepare to Arrest 'Water Protectors' at Valero Refinery on MLK Day
While police at the April marches accommodated a path through traffic, in the unpermitted but widely publicized March 10 event police rimmed the perimeter of City Hall, where the group had gathered after a short walk from Riverside Drive.  There was no traffic disruption. (The lights over the Hernando-DeSoto Bridge were turned off at about 8:30 that night, apparently a reflex of paranoia nurtured by the July 10, 2016, bridge shutdown by more than a thousand citizens who joined a nationwide outcry after police killings of unarmed men.) 

Nobody was arrested or challenged by police on March 10 because the organizer had not gotten a permit. This seems to be the preference of activists now, not to bother with a permit – the First Amendment is enough of a permit, right? – and police become aware of a planned event through social media. 

So, the city has not been clamping down hard on the permit law, but police have been showing up large for announced rallies which challenge institutions and multi-national corporations.

Funeral-Like Exemption
The newly proposed ordinance includes this provision, which does not appear in the existing law: 

“Funeral-like processions by vehicle or foot for the purposes of honoring the deceased, raising awareness of the deceased’s death, or celebrating the life of the deceased.”

Is this the golden loophole? The words under which social justice supporters can slip down streets and sidewalks? The “subsection B” which will cause every rally to have the stated commemoration of MLK or another deceased person? 

Lemonade Opportunity?
The initial flash of outrage from local First Amendment practitioners was backed by a history of distrust of local elected officials and police.  Probably most folks who read this proposed law were not familiar with the fine print in the current law and thus the whole thing was a fresh shock to behold. However, if it is indeed City Council's intent to only deal with 5K races, they can clean up and eliminate all language or "mistakes?" that smear the broad policies across public assemblies.

In fact, with an awakened awareness of how the city wishes to regulate public assemblies, is there an opportunity to make lemonade out of the sour taste by revising free speech out of the law? 

If City Council feels it must get into this, the whole ordinance should be examined. In fact, we have some proposals which are not specific to just permits but do involve public assemblies:

1—When officers make bad arrests, those officers should be written up and suspended without pay the number of days the defendant had to appear in court. A bad arrest is one wherein the defendant’s actions do not support the charge as we saw in several cases from the Rebel statue protest Aug. 19.  In other words, there was no good reason stated for the arrest.

2—When officers fail to appear for preliminary hearings, the same sanctions should apply.  A person who is charged is put through the wringer, has his or her mug shot plastered on TV and the Internet as a “suspect,” and misses time from life and work and is subject to attorney fees and court costs. This is in addition to the anxiety, embarrassment, humiliation or sense of fear that accrues to the citizen wrongly charged. 

3—All stipulations, fees, permits, requirements and langauge about “public assemblies” should be deleted. If someone is breaking an actual law, we already have that covered. 

We don’t need no stinkin’ permit to go outside and talk and walk. We already got one, aka, the First Amendment to the Constitution of the United States.

Friday, November 3, 2017

Valero 'Water Protectors' Going to Trial for Misdemeanor

Olivia Ramirez awaits her hearing May 2, 2017, in Memphis     Moore Media Images
Four “water protectors,” whose actions led police to shut down an Interstate exit and stop tankers from entering Valero Refinery on MLK Day 2017, will stand trial for the Class C misdemeanor “obstructing a highway or passageway” more than a year later.

Katherine Hanson of Missouri; Olivia Ramirez and Erick Conner of Oklahoma, and Spencer Kaaz of Memphis have trial dates set for Jan. 22, 2018, in Criminal Court Division III before Judge Robert Carter in Memphis.  They were among seven persons who were chained to concrete-filled barrels in front of Valero Refinery on MLK Day Jan. 16, 2017. 

They were expressing opposition to construction of the Diamond Oil Pipeline, from Cushing, Oklahoma, to the Valero Refinery in Memphis. Calling themselves “water protectors,” they made their bold statement in conjunction with environmental activists Arkansas Rising.

“I haven’t and I never will regret taking direct action,” said Ramirez, who includes the Osage Tribe among her ancestors, in a Facebook post. “I love my people. I love this land.”

The four were originally charged with disorderly conduct, obstructing a highway or passageway and criminal trespass. The disorderly and trespass charges were dismissed on May 2. The defendants expect the January trial will last three days.

They are the last remaining defendants whose cases have not been disposed of, from 12 persons who were originally arrested at the Valero action.  Three of the seven who sat in the Valero driveways paid court costs and pleaded out. Cases were dismissed for all five of the others arrested, including Rachel Gay, an independent journalist, and Paul Garner, who was acting as an observer and recording the action on his cell phone.
Olivia Ramirez (left), Erick Conner (right) wait with friend May 2, 2017  Moore Media Images

Michael Working, whose law firm is representing two of them pro bono, said after a May 2 preliminary hearing that the charge of obstructing a highway is “like jaywalking.”

Police typically charge “obstructing a highway or passageway” and/or “disorderly conduct” when there are no actual crimes committed or perceived violations are vague. Those are go-to charges against public First Amendment practitioners, aka protesters. Five persons arrested at the Aug. 19, 2017, rally to remove Confederate statues were charged with disorderly conduct, and two were charged with obstructing a highway. All seven of those cases have been dismissed, the final two being dismissed this month when the arresting officer -- who had written on his affidavit, "an unlawful protest was underway" -- failed to show up for the preliminary hearing.

It is rare that such a minor charge, a Class C Misdemeanor, goes to trial. At May 2 preliminary hearings, judges expressed sympathy with the defendants and cited First Amendment rights, before finding there was “probable cause” for the charges. The three were indicted in August.
Jessica Reznicek, Clay Ayers at Valero on MLK Day    Hive Swarm Media

In another in a string of court appearances, on Oct. 5 Shelby County prosecutors offered the defendants a "deal" to get off the hook -- that they pay about $24,000,  $6,000 apiece, ostensibly to offset Memphis police and fire department expenses. Needless to say, the defendants did not bite on that one, and attorneys advised it was an illegal and unethical ploy.

Although tanker trucks were coming and going, even as the water protectors sat in the entrance and exit driveways, it was police and Valero officials who decided to block Mallory Avenue and its Interstate exit and to stop truck traffic. Truckers were lined up for more than four hours waiting to get into the refinery.
Tankers wait for police to let them into Valero Refinery  Moore Media Images

Police also had access blocked to adjacent MLK Park – yes, on MLK Day.

Some observers credit Dr. Martin Luther King Jr. with expressing core beliefs of environmental justice.

“It really boils down to this: that all life is interrelated. We are all caught in an inescapable network of mutuality,” King said in a Christmas 1967 sermon.
MLK Park was blocked by police on MLK Day   Moore Media Images

“We are not satisfied and will not be satisfied until justice rolls down like water and righteousness like a mighty stream,” said King, who was aware that industrial pollution takes its heaviest toll on poor neighborhoods. 

Here are links to a later story in DailyKos -- and two of our earlier stories -- on the Valero action and subsequent court action.

"DA Pushes Misdemeanor Defendant-Protesters toward Jury Trial in Memphis"

“Valero Cases Dwindle as Judges Cite First Amendment”

“Cops Bust a Journalist, Chase One into the Bushes on MLK Day 2017”

Thursday, October 19, 2017

Trump-Sessions Block DOJ's Review of Memphis Police

The Department of Justice collaborative review of the Memphis Department of Police Services is dead in the water almost a year after it was announced with much fanfare.

MPD has entered a downsized deal with the office of Community Oriented Policing Services as the Trump administration has neutered the DOJ's efforts to improve community policing in Memphis and 14 other U.S. cities.
AG Sessions: "Course Correction"
New York Daily News Photo

Attorney General Jeff Sessions last month declared that the COPS office would pull back its Collaborative Reform Initiative for Technical Assistance (CRI-TA) program which works with law enforcement agencies to recommend ways the agencies could improve policing practices and police-community relations.

What's left of the COPS office work with MPD is an offer of "technical assistance" -- basically a menu of training that MPD may request -- such as police response to mass demonstrations, officer safety and wellness and problem-solving techniques. 

What's gone are the findings and recommendations that COPS was to present to MPD, then to follow through with monitoring and assistance during a two-year project. To prepare that report, the COPS team had invested hundreds of hours, including trips to Memphis. Time also was devoted to the project by MPD and community organizations that had met with COPS. 

No such reports will be released to the public now, confirmed Valerie Jordan of the COPS communications division. "We're not going to give out that information," Jordan said. 

Director of Police Services Michael Rallings on Oct. 12 signed a whittled-down "Memorandum of Understanding" between the COPS office and the Memphis Police Department for the “Collaborative Reform Initiative for Technical Assistance.”  This document “supersedes and replaces” the "Memorandum of Agreement" executed by Mayor Jim Strickland on March 3, 2017. Notably, the city of Memphis itself is not a party to this deal as the new MOU is not signed by Strickland.

Both documents are linked here:

Comparing the two documents simplistically -- beyond one being an "agreement" and the other an "understanding" -- the March deal has a list of 17 commitments on the part of the city, and the October "understanding" has five.

Monday, September 18, 2017

From LA to Memphis, Activism Doc Set for free, public Tennessee Premiere

Who Will Watch the Watchers? will make its "Tennessee Premiere" at 7 p.m. on Thursday Sept. 28 in Room 250 of the Art and Communication Building on the University of Memphis campus. The screening is free and open to the public. The Memphis-made documentary had its World Premiere over the weekend in Los Angeles at the Justice on Trial Film Festival.

The film is set in the local and national context of 21st Century hot topics, such as filming police, Black Lives Matter, dissent in the Trump era and citizens getting “woke” to a society that leaves many behind. 

        The U of M showing is hosted by student Nic Bradley, whose funded project "Political Police" provides an archive of resources on activism and surveillance in Memphis. Bradley represented the film at the Justice on Trial festival in Los Angeles. 

Told as a real-time narrative, the documentary feature tracks the struggles of Mid-South Peace & Justice organizing director Paul Garner, who is arrested for filming police then leads a grassroots movement to seek justice at City Hall in an election year. The story’s timeline reaches into 2017 and follows local and national events along the way.
Nic Bradley on the Red Carpet in Los Angeles

 “This is a people's history of local activism in Memphis over the past three years," said filmmaker Gary Moore, who began following the grassroots movement while researching a narrative episodic series in development. 

The film includes never-before-seen footage and some content that would not make it into mainstream media.”

       Following the film will be a panel discussion including the filmmaker, Bradley, Garner and civil rights attorney Bruce Kramer.

Filming began in 2014 after citizens were arrested while cell-phone recording police at Manna House homeless refuge and at a Trolley Night hip-hop event.  It’s an emotional roller coaster for citizens such as Garner, who was arrested twice for filming police and who led Memphis United grassroots coalition in a movement to bring back the Civilian Law Enforcement Review Board. In the middle of the campaign, a Memphis police officer shot and killed unarmed teenager Darrius Stewart after a traffic stop. 

The film also spans developments such as the 2016 Mississippi River Bridge shutdown where Interstate 40 bisects America and the mayor’s February 2017 blacklist of citizens who were ordered to be escorted by police if they entered in City Hall and arrested without warning if they showed up on his lawn. The film includes footage as recent as from the Aug. 19 action at Health Sciences Park to oppose Confederate statues.  

Civil Rights hero and Freedom Rider Dr. Rip Patton of Nashville narrates the opening and closing sequences of the film.

The film includes graphic violence and profanity and has not been rated by the Motion Picture Association of America. 

Moore Media & Entertainment previously produced the role-reversal comedy short, "The Suburban Itch," and is developing for television two episodic dramatic comedies: In The Pregnant Prick, a womanizing member of Congress changes his ways after he becomes pregnant -- due to global warming, scientists prove.  Second Coming is a what-would-Jesus-really-do series in which Jesus returns to Earth and exposes a televangelist and a crooked politician.