Aclu of Tenn., Inc. v. City of Memphis

ACLU OF TENNESSEE, INC., Intervening Plaintiff, v. THE CITY OF MEMPHIS, Defendant.

Case No. 2:17-cv-02120-JPM-jay

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

August 19, 2020

ORDER ON THE CITY'S NONCOMPLIANCE WITH SANCTION FIVE OF THE OCTOBER 29, 2018 ORDER MEMORIALIZING SANCTIONS, AND ORDER DENYING CITY'S MOTION TO SEAL

This cause was before the Court on May 14, 2020 for a Video Hearing regarding the City of Memphis's asserted noncompliance with Sanction 5 of the Court's October 26, 2018 Order and Opinion (ECF No. 151) and October 29, 2018 Order Memorializing Sanctions (ECF No. 152). The Hearing was held after the Independent Monitor informed the Court that the City has not complied with Sanction 5. (See ECF No. 364.) Before the Hearing, the City filed a Motion to Seal the documents submitted by the Monitor that detail the City's noncompliance with Sanction 5. (ECF No. 296.)

Present were counsel for the ACLU-TN and the City. Also present were the Independent Monitor and members of the Monitoring Team, as well as counsel for the Memphis Police Department ("MPD") and the City. The Court heard testimony from Major Darren Goods, Operations Commander for the Memphis Police Department's Multi-Agency Gang Unit ("MGU").

For the reasons set forth below, the Court finds that the City has not complied with Sanction 5. The Court also DENIES the City's Motion to Seal but will allow the City to refile its Motion within fourteen (14) days of the entry of this Order.

I. The Court's Findings

Upon review of the Parties' briefing, the testimony of Major Goods, and the arguments presented by the City, the Monitor and the ACLU-TN at the Hearing, the Court finds that the City has not complied with Sanction 5. (See ECF No. 152.) Sanction 5 requires the City to "maintain a list of all search terms entered into social media collators or otherwise used by MPD officers collecting information on social media while on duty." (Id. at PageID 6289.) The Sanction is not limited to the MPD's use of social media collators, nor is it limited to a specific group, agency or department of the MPD. By failing to provide the search terms used by officers of the MGU, Organized Crime Unit ("OCU"), and Internet Crimes Against Children division, the City did not comply with the plain terms of Sanction 5.

The testimony of Major Goods demonstrates the importance of disclosing the social media search terms used by the MGU. Major Goods testified that the MGU makes significant use of social media in the course of investigating gang activity. (See Tr. of May 14, 2020 Hr'g, ECF No. 318 at PageID 9345:2-25, 9346:1-10.) Major Goods testified that MGU officers assist other agencies and other MPD divisions, especially when there is a "gang nexus" to the investigation. (Id. at PageID 9348:2-21, 9354:5-8.) The MGU "receive[s] and provide[s] search terms to other agencies" and MPD departments, and MGU officers use undercover social media accounts to conduct their investigations, many of which are under the names of the undercover officers' personas. (Id. at PageID 9353:2-12, 9355:4-25, 9356:1-6.)These search terms are in some instances saved and preserved for later use in the investigation or for subsequent criminal prosecutions. (Id. at PageID 9354:5-8.)

The social media search terms used both by undercover and uniformed MGU officers must be disclosed to the Court under Sanction 5, regardless of the sensitivity of the information. The City shall supplement their filings to provide all undisclosed search terms used by officers of the MGU, OCU, Crimes Against Children division, or any other MPD department or division whose social media search terms have not been previously disclosed.

II. The City's Arguments

The City's arguments against disclosure of the social media search terms used by the MGU and other MPD divisions are not persuasive.¹ The Court will address each of the City's arguments in turn.

A. The failure of the Monitor and the ACLU-TN to object to the undisclosed search terms does not justify the City's noncompliance.

The City's first argument, which it advanced at the Hearing, is that it could not have known it was not complying with Sanction 5 because neither the Court, nor the Independent Monitor, nor the ACLU-TN objected to the non-disclosure of these terms in the lists of search terms submitted to the Court dating back to January 2019. (See, e.g., Tr., ECF No. 318 at PageID 9336:24-25, 9337:1-2, 10-14.) This argument is not persuasive. The Monitor and the ACLU-TN were unable to object to the non-disclosure of search terms because they were not made aware of the existence of such terms. The Monitor and the ACLU-TN therefore wereunable to object to the absence of this information and thus the City's potential violation of Sanction 5 at the time the City filed its list of search terms with the Court.

B. Requiring MPD officers to turn over lists of search terms used on their own personal social media accounts or their own personal phones does not violate the Fourth Amendment.

The Fourth Amendment does not bar the City from requiring MPD officers to disclose search terms used on officers' social media accounts or their personal devices if the terms were used for official police business.

MPD officers have a reasonable expectation of privacy in their personal devices, and thus some of the information on their personal devices triggers Fourth Amendment protections and requires the MPD to obtain a warrant before searching officers' personal property. See City of Ontario v. Quon, 560 U.S. 746, 756 (2010) ("The Fourth Amendment applies as well when the Government acts in its capacity as an employer."); see also O'Connor v. Ortega, 480 U.S. 709, 717 (1987) ("Individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer."). However, "the Supreme Court has recognized an exception for searches of a public employee's workplace under the special needs doctrine." James v. Hampton, 592 F. App'x 449, 454 (6th Cir. 2015) (citing O'Connor, 480 U.S. at 719-20). Imposing a "warrant requirement would be impracticable in the public employment context," as such a requirement "would seriously disrupt the routine business of the workplace." Id. (citing O'Connor, 480 U.S. at 722).

Although the Supreme Court has not settled the proper analytical framework used to determine the scope of a public employee's Fourth Amendment protections in the context ofemployment-related searches, the Sixth Circuit in the unpublished opinion James v. Hampton discussed the O'Connor v. Ortega plurality's framework, which "recognized that government employees' expectation of privacy in their offices can be diminished by virtue of office practices and procedures or by legitimate regulation." James v. Hampton, 592 F. App'x 449, 455 (6th Cir. 2015); see also Zimmerman v. Knight, 421 F. Supp. 3d 514, 520-21 (S.D. Ohio Nov. 14, 2019) (noting that the Hampton decision is controlling with respect to O'Connor's application in the Sixth Circuit). "[G]overnment employees' expectation of privacy in the workplace can be reduced through . . . prior notice to employees that their workspaces were subject to search." Hampton, 592 F. App'x at 455.

Under the O'Connor plurality's approach, courts apply a two-step inquiry to determine "whether a public employee workplace search without a warrant would violate the Fourth Amendment." Hampton, 592 F. App'x at 454-55. First, the reviewing court considers "whether the employee has a reasonable expectation of privacy in the workplace." Id. at 455 (citing O'Connor, 480 U.S. at 711-12). Second, "if the employee does have an expectation of privacy," the courts must ensure that the search is "reasonable both at its inception and in its scope." Id. (citing O'Connor, 480 U.S. at 725-26). "A search is justified at its inception 'when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file.'" Id. (quoting O'Connor, 480 U.S. at 726). "The search is reasonable in scope when it is 'reasonably related to the objectives of the search and not excessively intrusive in light of . . . the nature of the [misconduct].'" Id. (quoting O'Connor, 480 U.S. at 726).

MPD officers have a reduced expectation of privacy in their personal devices and social media accounts when used for official police purposes "by virtue of office practices and procedures or by legitimate regulation" put in place by the City and the MPD. See Hampton, 592 F. App'x at 455. A court order requiring all MPD personnel to provide social media search terms used for official police business qualifies as a "legitimate regulation," given the importance of the City's continued compliance with the Kendrick Consent Decree, and especially given that an MPD officer's impermissible use of social media was at the heart of the Court's finding that the City and the MPD violated the Kendrick Consent Decree. Although MPD officers generally have a reasonable expectation of privacy in their personal cellphones and devices under Supreme Court and Sixth Circuit precedent, see Riley v. California, 573 U.S. 373, 386 (2013), see also Zimmerman v. Knight, 421 F. Supp. 3d 514, 520-21 (S.D. Ohio 2019), not everything on MPD officers' personal cellphones and devices is necessarily unrelated to official police business. See Zimmerman, 421 F. Supp. 3d at 520-21 (quoting Hampton, 592 F. App'x at 457). The search terms stored on MPD officers' and MGU officers' personal phones and used in criminal investigations qualify as "workplace items." Therefore, social media accounts and search terms used for criminal investigative purposes on behalf of the MPD qualify as "items that are related to work" and should be "within the employer's control." O'Connor, 480 U.S. at 715.

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