Last Night, First Right
Police Surveillance of First Amendment
Activity
In this post-9/11
era, it can be particularly difficult for law enforcement to find the proper
balance between protecting the public and upholding our constitutional rights
of freedom of speech and assembly. A case in point is the controversy that
arose over the Santa Cruz Police Department's undercover surveillance of the
planning by a citizen group for a New Year's Eve parade in December 2005. This
investigation was conducted as a result of that incident and subsequent police
department follow-up.
Parade organizers
and other members of the public have questioned the need for the Santa Cruz
Police Department’s undercover surveillance of the planning for this event and
have raised questions about the police department’s review of the operation.
However, the process ultimately worked out to the benefit of both residents and
law enforcement. The city’s independent police auditor conducted a thorough and
balanced report of the surveillance operation and the thinking behind it. That
opened a community dialogue on the issue of surveillance of groups involved in
political speech and activity, which, in turn, led to the adoption by the
police department of new rules to govern these types of investigations in the
future.
In October 2005,
officers with the Santa Cruz Police Department (SCPD) learned that a group of
people were meeting to plan a New Year’s Eve parade in downtown Santa Cruz on
Dec. 31, 2005. The group intended to hold an event titled, “The Last Night
Santa Cruz DIY (Do It Yourself) Parade.” The event was to be “a decentralized,
collective, spontaneous, open, public New Year's Eve celebration in Santa
Cruz.”[1]
For several years
prior to New Year's Eve 2005, the City of Santa Cruz had officially sanctioned
a "First Night" party whose organizers sought, paid for and received
city permits, which allowed street closures, music, booths and increased police
presence at the event. However, First Night was disbanded after the New Year's
Eve 2004 event, and no city-authorized event was planned for New Year's Eve
2005. Organizers of the 2005 DIY parade did not apply for a parade permit
because they neither wanted nor sought city involvement or approval. In
addition to throwing a party, part of the purpose behind the event was to
“reclaim”[2]
the streets for the public by intentionally not involving city officials or
police in the planning of or approval for the event and, in so doing they
believed they were making a statement about the need to preserve individuals'
rights of self-control and self-governance.
When Santa Cruz
police officers learned of the planning for the event in late October 2005,
they briefly reviewed a “Last Night Santa Cruz DIY Parade” web site that was
being used by the organizers to spread
information about the upcoming event. Members of the Police
Department, based on their experience with some previous public events downtown
that got out of control, became concerned that such an uncontrolled event might
cause a public safety traffic hazard or that people attending might become
rowdy and dangerous. A decision was made to send two undercover police officers
to the DIY Last Night group’s planning meeting on Oct. 29, 2005, to learn more
about the event that was being planned and the people who were planning it. Two
officers attended the meeting in plain clothes and gave false names when they
identified themselves.
The two officers
who attended the meeting were later recognized and identified by DIY parade
organizers. In the days leading up to the New Year’s Eve DIY Last Night parade,
organizers notified the Santa Cruz Sentinel that their meeting had been
attended by undercover police officers and the Sentinel reported the
story on Dec. 31, 2005.
In January 2006,
in the wake of public sentiment that the use of undercover police surveillance
amounted to a violation of the public’s right of free speech, the SCPD opened
an internal investigation of the DIY Last Night Parade surveillance. An
internal investigation was conducted by the police official who had authorized
the undercover operation. His investigation determined that no laws or police
policies had been violated by the operation.
In February 2006,
the Independent Police Auditor for the City of
·
The
undercover surveillance “more than likely ... violated the civil rights of the
parade organizers.”[3]
·
A
permitless parade is a violation of the law, but it does not constitute much of
a credible basis for intruding on anyone’s civil rights.[4]
·
Police
failed to recognize that the parade was intended as a form of civil
disobedience and constituted political speech which should have prompted a
higher level of scrutiny within the department of the validity of the
undercover operation. 5
·
The
department was obligated to attempt to collect information about the planned
event, not to prevent it but to be in a position to respond to it as it
unfolded.[5]
·
The
(Police) Department and its employees were entirely well-intentioned and acted
without any recognition of how close the constitutional line was.[6]
·
Neither
Santa Cruz nor the vast majority of other law enforcement agencies, large or
small, have explicit policies which adequately deal with this issue.[7]
In June 2006,
following consultation with the Santa Cruz City Attorney, the City Council’s
Public Safety Committee and a representative of the American Civil Liberties Union,
the Santa Cruz Police Department adopted Departmental Directive, Section 610,
Undercover Operations–First Amendment Activity. The policy spells out the
conditions necessary for the police department to initiate undercover
operations of entities or activities that may be protected under the First
Amendment of the U.S. Constitution. In considering whether to allow an
undercover operation, and in reviewing it while it is ongoing and after it has
concluded, the policy requires that:
·
There
be “reasonable suspicion to believe that the subject of the investigation is
planning criminal activity.”[8]
·
The
Police Department first attempt “direct and open communication”[9]
with the subject, as well as less-intrusive investigatory techniques like
reviewing information on the Internet, before resorting to undercover
operations.
·
The
police chief authorize all undercover operations of events that may fall under
First Amendment activities, and that the city attorney also review the reasons
for undertaking the investigation.[10]
·
The
city annually issue a public report outlining how many First Amendment activity
undercover operations were sought, how many were approved, and how many were
denied, and if the city’s independent police auditor believes any
investigations violated the policy.[11]
This investigation
originated as a review of the Santa Cruz Police Department’s undercover police
surveillance of the parade planning activities, its subsequent investigation of
that undercover surveillance, and its response. The investigation also
incorporated a review of other law enforcement agencies in Santa Cruz County
and their policies regarding undercover surveillance of activities that could
be reasonably claimed as protected by the First Amendment and any policies
directing such surveillance.
1.1
Worldwide
reports of terrorism, 9/11 and enactment of the U.S. Patriot Act have
heightened public sensitivity toward criminal activity on every level, from the
lowest local infraction to the most serious national acts. Similarly, the
public’s sensitivity to and awareness of incursions into constitutionally
protected freedom of speech and freedom of assembly is also heightened.
Previous holiday-oriented gatherings downtown Santa Cruz had resulted in
significant property damage and serious personal injury.
1.2 The officers involved in the undercover
operation did not consider the political aims of the group they investigated,
focusing instead on the public safety ramifications of the Last Night Parade.
1.3 Some Santa Cruz residents were eager to
jump to the conclusion that the Last Night Santa Cruz DIY Parade surveillance
was part of a larger conspiracy to squelch civil rights.
Response: The Santa Cruz Police Department AGREES.
Response from the Capitola Police Department:
The Capitola Police Department has
insufficient information upon which to base an opinion in this matter. However,
what we can comment on is that the Capitola Police Department and its members
have not engaged in a conspiratorial fashion, as an agency or in partnership
with other law enforcement agencies, to squelch the civil rights of any citizen
of Capitola or Santa Cruz County.
Response: The Scotts Valley Police
Department AGREES.
Response: The Santa Cruz County Sheriff's Office
DISAGREES.
Since the Sheriff has no personal knowledge on this point, he is unable
to agree or partially disagree with it.
Response from the Watsonville Police Department:
We find it impossible to comment
on what some people assume. We are not, have not ever, conspired to squelch
civil rights.
2.1
In
April 2005, students at the University of California, Santa Cruz, protested
military recruiters’ attendance at an on-campus career fair. It was learned
eight months later that the Pentagon had classified the student protest as a
“credible threat”[12]
and Defense Department representatives had conducted undercover
monitoring of the event.
Response:
The Santa Cruz Police Department PARTIALLY AGREES.
Our agency was made aware of these
events as with all other members of the public: via the media. We cannot
definitively say what was done by another agency in monitoring the event or
what the rationale for such monitoring was used.
Response from
the Capitola Police Department:
The Capitola Police Department did
not have any role in this particular incident and no further basis upon which
to comment on this matter. However, it is important to note that in the past,
military recruiters have been threatened and assaulted in various forums
throughout the United States. Thus, it is reasonable for the government and law
enforcement entities to conduct some reasonable level of threat assessment and
intelligence gathering before placing recruiters and other employees in harms
way.
Response: The
Scotts Valley Police Department PARTIALLY AGREES.
We only know what was reported in various media
accounts and are not privy to what actions the Defense Department may or may
not have taken.
Response: The Santa Cruz County Sheriff's Office
PARTIALLY AGREES.
The Sheriff agrees with the first sentence and disagrees with the second
sentence because he has no personal knowledge or verification on these points
that would allow him to agree or partially disagree.
Response from the Watsonville Police Department:
There seems to be no question to
be answered. We have no information to respond to the jury’s statement.
2.2
Monitoring
of First Amendment-protected activities in recent years has occurred in
Oakland, Fresno, Contra Costa County, San Francisco and New York City.[13]
Response: The
Santa Cruz Police Department PARTIALLY AGREES.
The department is not able to confirm
that such monitoring took place and does not have any specific information
readily available that verifies such claims.
Response:
The Capitola Police Department AGREES.
The Capitola Police Department
agrees. Monitoring of First Amendment-protected activities is certainly not
limited to the cities mentioned in the
Response: The
Scotts Valley Police Department PARTIALLY AGREES.
We have seen this reported in ACLU documents and some media sources but
have not confirmed their veracity nor context.
Response: The Santa Cruz County Sheriff's Office
DISAGREES.
The Sheriff has no personal knowledge on this point that would allow him
to agree or partially disagree with them, and this statement appears to be a
quote from a publication.
Response from the Watsonville Police Department:
There seems to be no question to
be answered. We have no information to respond to the jury’s statement.
2.3
No
evidence has been found that the Santa Cruz Police Department or other Santa
Cruz County law enforcement agencies have engaged in undercover surveillance of
First Amendment-protected political activity in recent years beyond the Last
Night DIY parade.
3.1
By
publicly stating they did not intend to apply for a parade permit, the Last
Night DIY organizers knowingly intended to break the law. The law broken was an
infraction, the lowest level of violation, generally indicative of not being of
a serious or threatening nature.
3.2
On
New Year’s Eve 2005, the Last Night Santa Cruz DIY Parade was held as planned,
and no major problems were reported.
3.3
Following
the direction of its new First Amendment policy, a city official contacted
organizers of the Dec. 31, 2006, New Year’s Eve’s parade prior to the event and
attempted to convince them to apply for a free Noncommercial Event permit.
Organizers declined, and the police department did not pursue the matter
further. A second Last Night Santa Cruz DIY Parade was held on Dec. 31, 2006,
at which no serious problems were reported.
4. There were no clear policies in place in
Santa Cruz in 2005 to provide guidance for this type of surveillance.
4.1 There is little recent case law
establishing what is permissible and what is not permissible in the area of
police undercover surveillance of First Amendment-protected activities. Much of
the case law that guides undercover infiltration of free speech groups dates to
the 1960s and 1970s and is not entirely applicable to the civil rights and law
enforcement issues that predominate in the post-9/11 world.
Response: The
Santa Cruz Police Department PARTIALLY AGREES.
However, there is a recent Ninth
Circuit Court case that addresses many of these issues raised.
Response: The Capitola Police
Department DISAGREES.
In today’s litigious society, where
lawsuits and public records act requests often overwhelm public agencies,
access to public records and information retained by the government is at an
all time high. Likewise, challenges to local, state and federal agencies
Intelligence Gathering and Criminal Intelligence Guidelines are also undergoing
close scrutiny and substantial revision at all levels of government. The laws
governing intelligence and criminal intelligence file guidelines are contained
and distributed by the California Peace Officers Association, Criminal Intelligence Standards and
Guidelines manual dated July 2003; the State of California Attorney
General’s Office; U.S. Department of Justice, Criminal Intelligence Systems
Operating Policies for 28 CFR Part 23 Compliance. There are numerous
publications available to local law enforcement agencies, which routinely
discuss the law and case precedence established by current cases relative to
constitutionally protected rights, to include First Amendment-protected
activities.
Response: The
Scotts Valley Police Department PARTIALLY AGREES.
We have not conducted independent research to corroborate this finding.
Response: The Santa Cruz County Sheriff's Office
DISAGREES.
The Sheriff has no personal knowledge on these points that would allow
him to agree or partially disagree with them.
Response: The Watsonville Police Department
DISAGREES.
In today’s litigious society,
where lawsuits and public records act requests often overwhelm public agencies,
access to public records and information retained by the government is at an
all time high. Likewise, challenges to local, state, and federal agencies
Intelligence Gathering and Criminal Intelligence Guidelines are also undergoing
close scrutiny and substantial revision at all levels of government. The laws
governing intelligence and criminal intelligence file guidelines are contained
and distributed by the California Police Officers Association, Criminal
Intelligence Standards and Guidelines manual dated July 2003; the State of
California Attorney General’s Office; U.S. Department of Justice, Criminal
Intelligence Systems Operating Policies for 28 CFR Part 23 Compliance.
There are numerous publications available to local law enforcement agencies,
which routinely discuss the law and case precedence established by current
cases relative to constitutionally protected rights, to include First Amendment-protected
activities.
4.2 The office of the California Attorney
General in 2003 issued a report that provided a summary of state law regarding
police intelligence collection operations titled “Criminal Intelligence
Systems: A California Perspective,” but local law enforcement have found it
difficult to interpret.
Response: The Capitola Police Department PARTIALLY AGREES.
The Capitola Police Department has
reviewed the referenced report and guidelines. To better understand the
recommended policies and procedures contained in the manual, along with the
contemporary issues of: Criminal Intelligence Guidelines and the Criminal
Intelligence System, the Capitola Police Department has elected to send all
command officers to the Criminal Intelligence for Executives Course. This
course is taught by staff from the California Attorney General’s Office, along
with featured guest speakers. The structure of the course and the information
provided helps executives and police command staff better understand the
importance of both an effective and legal intelligence gathering process.
Response: The
Scotts Valley Police Department AGREES.
Response: The
Santa Cruz County Sheriff's Office PARTIALLY AGREES.
The Sheriff agrees that the Attorney General issued this report but disagrees
that local law enforcement agencies have found it difficult to interpret as he
has no personal knowledge that would allow him to agree or partially disagree
with this statement.
Response: The
City of Santa Cruz PARTIALLY DISAGREES.
The 2003 report as issued by the
Attorney General attempts to provide a framework for collection, analysis, and
storage of criminal intelligence information. The report provides a series of
recommendations culled from previous commissions and studies that emphasize standardization,
accuracy, and information sharing between agencies. From the standpoint of the Santa Cruz Police
Department, such information is only obtained on active criminal
investigations, generally gang cases, and the information is purged pursuant to
mandated purge criteria. The Santa Cruz Police Department already participates
in countywide standardized information systems and accesses state databases
that hold criminal intelligence information. The department does not maintain
non-criminal information files on individuals. The report does not appear to
focus on First Amendment activities and does not appear specifically germane to
the Last Night event.
Response: The
Watsonville Police Department AGREES.
4.3 Prior to adoption of a new policy by the
Santa Cruz Police Department regarding undercover operations of First
Amendment-protected activities, only two cities, San Francisco and Washington,
D.C., had explicit policies defining when and under what circumstances police
may engage in undercover investigation of First Amendment-protected activities.
Response: The Santa Cruz Police
Department PARTIALLY AGREES.
Our agency queried the entire
California Chief’s listserve to determine if other California agencies had such
a policy and received no affirmative response. Through basic research it was
determined that very few agencies had such a policy. However, we are unsure if
the two agencies listed in the above finding are the only other two agencies
nationwide.
Response from the Capitola Police Department:
The Capitola Police Department has
insufficient information upon which to base an opinion, or response, as we have
not independently contacted all police agencies in the entire country regarding
this matter. However, in reviewing
numerous intelligence and surveillance policies from around the state, it is
readily apparent that most agencies require either a “reasonable suspicion” or
“probable cause” that criminal activity may be planned or exists, before
authorizing either a police surveillance or a criminal intelligence gathering
operation. This standard is consistent with the recommendations made by Robert
Aaronson, Independent Police auditor, contained on page 3 of this report and
may explain why other agencies may have previously been silent on First Amendment-protected
activity. Generally, the Constitutional protections referenced as First
Amendments activities are incongruous with an individual or individuals
violating the law and hiding behind the cloak of Free Speech or other alleged
protections.
Response: The Scotts Valley Police
Department DISAGREES.
We cannot agree with this finding
absent independent research and verification.
Response: The
Santa Cruz County Sheriff's Office DISAGREES.
The Sheriff has no personal knowledge on this point that would allow him
to agree or partially disagree with it.
Response from the Watsonville Police Department:
There seems to be no question to
be answered. We take the jury’s word for Washington, D.C. and San Francisco
Police Department having policies.
4.4 Police officers receive minimal training
in First Amendment and free-speech issues, usually prior to becoming an officer
while they are in the police academy.
Response: The
Santa Cruz Police Department PARTIALLY AGREES.
While the agency agrees that First
Amendment issues are covered in the policy academy, the department now expects
all of our officers to adhere to the new internal policy.
Response: The
Capitola Police Department DISAGREES.
As previously stated, the Chief of
Police and all Command Officers attend the State sponsored Criminal
Intelligence for Executives Course and receive instruction on both State and
Federal guidelines concerning Criminal Intelligence and Intelligence File
Guidelines. Likewise, all uniformed and
investigative staff receive regular updates and review operational orders
concerning all planned protests, demonstrations and labor management incidents,
as it relates to the Constitutional rights of those persons involved in
protected free speech activity. Additionally, Capitola Police Department
Incident Commanders are required by policy and practice to coordinate
operations, to the degree possible, with demonstration and free speech
organizers and participants, to insure the rights of demonstrators are
protected and balanced in contrast to public safety concerns and private
property rights. I refer the
Response: The
Scotts Valley Police Department PARTIALLY AGREES.
Academy curriculum includes general constitutional
instruction. We cannot speak to what additional training independent police
agencies provide their officers.
Response: The Santa Cruz County Sheriff's Office
AGREES.
The Sheriff agrees as it relates to the Santa Cruz County Sheriff's
Office only.
Response: The Watsonville Police Department
PARTIALLY AGREES.
All Peace Officers get continual
training. Some of that training deals with the First Amendment, mostly as it
relates to picketing, protests, sit-ins, etc. The Santa Cruz District Attorney
has two attorneys assigned to assist agencies in such matters.
4.5 None of the other local law enforcement
agencies in Santa Cruz County have a policy in place regarding undercover
surveillance of First Amendment activities. The Scott's Valley Police Department is reviewing its policies regarding surveillance and anticipates adopting changes this
summer.
Response: The Santa Cruz Police
Department AGREES.
At the time of implementation the
department was the only in the county (and one of the few in the state) to have
adopted such a policy.
Response: The Capitola Police
Department PARTIALLY AGREES.
The City of Capitola shares the same
City Attorney as the City of Santa Cruz. As such, the City Attorney is
reviewing our current policy as it applies to surveillance and criminal
intelligence guidelines, files and surveillance operations. The review should
be completed and submitted to the Police Department within the next month and
the policy should be adopted and implemented shortly thereafter. However, the
department currently appears to meets industry standards, having received
training in the State of California, Department of Justice and the
U.S.Department of Justice standards as they apply to Criminal Intelligence
Gathering and Surveillance operations.
Response: The
Scotts Valley Police Department PARTIALLY AGREES.
Scotts Valley Police is drafting a policy similar
to Santa Cruz Police. We cannot speak to
what other local agencies have in regards to such policies.
Response: The Santa Cruz County Sheriff's Office
PARTIALLY AGREES.
The Sheriff partially agrees with the first sentence as it relates to
the Santa Cruz County Sheriff's Office only and disagrees with the second
statement because he has no personal knowledge that would allow him to agree or
partially disagree with that point.
Response from the Watsonville Police Department:
Our policy in this area is guided
by case law and advice of District Attorney’s staff. Our policies are currently
being changed and updated through a company of lawyers.
4.6 The police official who authorized the
undercover operation was also the one who conducted the department’s internal
investigation.
4.7 The Santa Cruz Police Department was
reluctant to address the issue to the public’s satisfaction. What was and was
not released to the public was also complicated by state-mandated limitations
upon what can be legally disclosed regarding police personnel matters, not by
obfuscation by the police department.
5. In the wake of the surveillance incident, the
Santa Cruz Police Department has created new policies to guide it in the future
when balancing public safety and constitutional protections for free speech and
assembly.
Response: The Santa Cruz Police
Department AGREES.
Response from the Capitola Police
Department:
The Capitola Police Department
agrees that the Santa Cruz Police Department has created a new policy by
adopting Departmental Directive, Section 610.
Response: The
Scotts Valley Police Department AGREES.
Response: The Santa Cruz County Sheriff's Office
PARTIALLY AGREES.
The Sheriff has heard that the Santa Cruz Police Department has adopted
some changes to their policies but has not seen these changes.
Response: The Watsonville Police Department AGREES.
5.1
The
City of Santa Cruz employs an independent police auditor, who reports to the
city manager, not the police department. He reviews internal affairs
investigations for accuracy and thoroughness.
Response from
the Capitola Police Department:
The Capitola Police Department agrees
that the City of Santa Cruz employs an independent police auditor and has not
further comment on the matter.
Response: The
Scotts Valley Police Department AGREES.
Response: The Santa Cruz County Sheriff's Office
AGREES.
Response: The Watsonville Police Department
AGREES.
5.2
No
other law enforcement agencies in Santa Cruz County employ an independent
police auditor as the City of Santa Cruz does.
Response: The
Capitola Police Department AGREES.
Response: The
Scotts Valley Police Department PARTIALLY AGREES.
We
have not verified this finding.
Response: The Santa Cruz County Sheriff's Office
AGREES.
Response: The Watsonville Police Department
AGREES.
5.3
The
Santa Cruz City Council empowers a subcommittee of three council members to act
as a Public Safety Committee and review police issues that come before the
city, adding another layer of scrutiny of police actions beyond the independent
auditor.
Response: The
Capitola Police Department AGREES.
Response: The
Scotts Valley Police Department AGREES.
Response: The Santa Cruz County Sheriff's Office
DISAGREES.
The Sheriff has no personal knowledge on this point that would allow him
to agree or partially disagree with it.
Response: The Watsonville Police Department
AGREES.
5.4
Santa
Cruz Police Departmental Directive Section 610 establishes a minimum threshold
of “reasonable suspicion” of anticipated criminal activity before police can
initiate undercover surveillance of First Amendment-protected activity.
However, there is no simple all-encompassing definition of what constitutes
reasonable suspicion; it will be considered on a case-by-case basis.
Response: The Santa Cruz Police
Department AGREES.
Response: The Capitola Police
Department AGREES.
Response: The
Scotts Valley Police Department AGREES.
Response: The Santa Cruz County Sheriff's Office
DISAGREES.
The Sheriff has no personal knowledge on this point and has not viewed
the Santa Cruz Police Department Directive Section 610.
Response: The
City of Santa Cruz AGREES.
Response from the
Watsonville Police Department:
We cannot agree or disagree. We
have not read Santa Cruz Police Department Directive Section 610.
5.5
The
new Santa Cruz Police Departmental Directive Section 610 establishes a clear
chain of command that includes the chief of police that must be followed in
authorizing such undercover operations. Both the chief of police and the Santa
Cruz city attorney must now review proposed undercover surveillance of First
Amendment-protected activity.
Response: The
Santa Cruz Police Department PARTIALLY AGREES.
The directive specifically applies to
potential criminal activity.
Response: The
Capitola Police Department AGREES.
Response: The
Scotts Valley Police Department AGREES.
Response: The Santa Cruz County Sheriff's Office
DISAGREES.
The Sheriff has no personal knowledge on this point and has not viewed
the Santa Cruz Police Department Directive Section 610.
Response from the Watsonville Police Department:
Watsonville Police Department
takes the jury’s word for it.
5.6
Several
sections of the Santa Cruz Police Department’s new policy regarding
surveillance of political activities are now cited as “Best Practices Guidelines
for First Amendment Activities,”[14]
including acknowledgement of citizens’ rights afforded under the U.S.
Constitution; the chain of command to be followed in deciding whether to
initiate a surveillance operation of political activity; and what police officers
can and cannot do when investigating protected claims of political activity.
Response: The
Santa Cruz Police Department PARTIALLY AGREES.
The policy as adopted by the Santa
Cruz Police Department addresses the monitoring of First Amendment activities.
It does not, however, specifically outline post-event investigations as implied
by the above finding.
Response: The
Capitola Police Department AGREES.
Response: The
Scotts Valley Police Department AGREES.
Response: The Santa Cruz County Sheriff's Office
DISAGREES.
The Sheriff has no personal knowledge as to Santa Cruz Police
Department’s new policy regarding surveillance of “political activities.”
Response: The
City of Santa Cruz PARTIALLY AGREES.
The
policy as adopted by the Santa Cruz Police Department addresses the monitoring
of First Amendment activities. It does not, however, specifically outline
post-event investigations as implied by the above finding.
Response from the Watsonville Police Department:
Watsonville Police Department
takes the jury’s word for it.
5.7
The
Santa Cruz City Council Public Safety Committee has requested further review of
the new policy regarding surveillance of First Amendment-protected activities
by the city manager with regard to five additional points the American Civil
Liberties Union of Northern California, recommends be included in the policy.
The ACLU recommends that the new policy be expanded to add these protections:
Add a reference to the California Constitution's Right of Privacy; narrow the
scope of “reasonable suspicion” in determining when undercover operations may
be allowed; clarify the meaning of less intrusive tactics in the new policy;
add guidance regarding video surveillance; and expand provisions for auditing
and reporting of undercover operations.
Response: The
Santa Cruz Police Department AGREES.
Our agency complied with requests for
information and participated in the capacity requested by the Public Safety
Committee and City Manager. The recommendation was reviewed and the policy has
been finalized.
Response: The
Capitola Police Department AGREES.
Response: The
Scotts Valley Police Department PARTIALLY AGREES.
We are aware that the City Council of
Response: The Santa Cruz County Sheriff's Office
DISAGREES.
The Sheriff has no personal knowledge on these points that would allow
him to agree or partially disagree with them.
Response: The
City of Santa Cruz AGREES.
The
Santa Cruz Police Department complied with requests for information and
participated in the capacity requested by the Public Safety Committee and City
Manager. The recommendation was reviewed and the policy has been finalized.
Response from the Watsonville Police Department:
Watsonville Police Department
takes the jury’s word for it.
1.
Every
city has its own character which may influence where the appropriate balance
lies between protecting free speech and guarding against possible threats of
criminal acts, particularly in a post 9/11 world. The orientation of residents
in the cities of Santa Cruz, Capitola, Watsonville, Scotts Valley, and the
unincorporated areas of the county vis-à-vis police are unique to each
municipality. But overlaying every community’s consideration of this issue are
the protections provided in the First Amendment of the United States
Constitution: “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances.”
2.
The
fluid nature of interpretation of the First Amendment, and the lag time between
shifts in public attitudes and the creation of new case law, make it difficult
for police departments to create policies that are specific enough to
anticipate every possible scenario and provide police officers with definitive
guidelines as to whether a particular form of surveillance is proper.
3.
Undercover
surveillance is an important and legitimate tool in the investigation of gangs,
drug violations and a host of other criminal activities.
4.
The
organizers of the Last Night Santa Cruz DIY Parade did not pose a threat or
hazard to public welfare.
5.
The
likelihood of this type of scenario repeating itself appears slight due to the
exposure this incident received. Other Santa Cruz County law enforcement
agencies should learn from the Santa Cruz Police Department’s experience.
Having an established policy in place to guide such investigations could
prevent other law enforcement agencies from facing the same exposure. Also, an
established policy could provide law enforcement agencies with a positive
public relations tool to show that the department is trying to anticipate
problems. However, it is important to recognize that the relationship between a
city’s residents and its police department varies from city to city, and there
is no “one size fits all” solution that will work for every law enforcement
agency.
6.
Police
were not out of line in viewing the Last Night DIY Santa Cruz Parade as a
potential threat to public safety, given the history of stabbings and violence
at previous downtown events. The parade’s organizers did not intend to cause
property damage or personal injury, but large gatherings where people consume
alcohol can create dangerous situations which are unanticipated by those
planning the event.
7.
The
absence of police policy in the area of surveillance of politically protected
speech and activity suggests that police are involved with more immediate
public safety issues and that the Last Night Santa Cruz DIY Parade surveillance
was an anomaly rather than “the tip of the iceberg” of wider police
surveillance.
8.
The
rightness or wrongness of the Last Night Santa Cruz DIY Parade investigation
hinges upon interpretations of law and competing priorities upon which
reasonable people on both sides of the issue differ.
9.
Not
considering the political element inherent in the Last Night DIY Santa Cruz
Parade hampered police from recognizing potential free speech and First
Amendment issues that may have caused them to reconsider the necessity of the
undercover operation.
10. Police officers working the streets must
navigate a complex web of directives and guidelines in the performance of their
duties and are responsible for upholding a wide array of laws. It is the
responsibility of police department management to be aware of these
developments so that when a situation arises, they can correctly advise their
officers how to proceed.
11. The adoption of Santa Cruz Police
Departmental Directive Section 610 and the exposure that police handling of the
Last Night Santa Cruz DIY Parade received makes it unlikely that undercover
operations of First Amendment-protected activities will be undertaken in the
future without more extensive advance scrutiny.
12. Although the Santa Cruz Police Department
conducted its own internal investigation, the independence of the investigation
was compromised by the fact that the police official who conducted the internal
investigation was also the police official who authorized the undercover
operation causing suspicion of the findings by some members of the public.
13. The report issued by the city’s
independent auditor served a useful role and aided in preventing further
deterioration of the relationship between the Santa Cruz Police Department and
residents. The report enabled residents and the police department to come
together in the wake of the controversy to try and find some mutually
acceptable common ground.
14. The Santa Cruz Police Department’s
adoption of Departmental Directive Section 610 puts it ahead of almost all
other cities in the state and the nation in addressing the potential legalities
surrounding this type of investigation.
15. The Santa Cruz Police Departmental
Directive Section 610 is a step forward in spelling out under what conditions
undercover surveillance of First Amendment activity may occur.
16. The more straightforward and less legally
complicated Santa Cruz Police Departmental Directive Section 610 is kept, the
more likely it is to be understood and adhered to.
17. Citizens often interact only with their
police department when something bad happens—they receive a traffic citation,
are stopped for drunk driving, are told they cannot do something—creating a
skewed view of police by some of the public, and of the public by some of the
police.
Response from the Santa Cruz Police Department:
The recommendation has been implemented
by our agency. We are unable to respond to the status of other county law
enforcement agencies.
Response: The
Capitola Police Department AGREES.
Response: The
Scotts Valley Police Department AGREES.
Response: The Santa Cruz County Sheriff's Office
AGREES.
This recommendation requires further analysis to determine and research
the wide extent of case law on this very complex issue.
Response: The Watsonville Police Department
PARTIALLY AGREES.
Our jobs are not to study case
law, but to insure the advisors of our officers do. That would be the assistant
district attorneys, city attorneys, California Police Chiefs Association
Council, and the California District
Attorneys Association. Court Decisions change often.
2.
Law
enforcement must be cognizant of the wide range of activities that fall under
the umbrella of the First Amendment when considering surveillance operations.
Response
from the Santa Cruz Police Department:
The recommendation has been implemented.
The Santa Cruz Police Department implemented the first such policy that helps
guide our agency.
Response: The
Capitola Police Department AGREES.
Response: The
Scotts Valley Police Department AGREES.
Response: The Santa Cruz County Sheriff's Office
AGREES.
This recommendation requires further analysis to determine potential
training on this very complex issue.
Response: The Watsonville Police Department
AGREES.
3.
Every
law enforcement agency in the county should establish procedures, tailored
within constitutional limitations to meet their own unique identities, for
authorizing surveillance of groups or individuals that may be protected under
the First Amendment. Any such approved surveillance operations should establish
a clear chain of command for authorizing such surveillance and include
provisions for review by the chief of police and legal counsel.
Response from the Santa Cruz Police Department:
The recommendation has been implemented.
At the time of implementation our agency was the first and only agency within
the county to adopt such a policy.
Response:
The Capitola Police Department PARTIALLY AGREES.
The Capitola Police Department agrees
that surveillance and undercover operations involving groups or individuals
that may be protected under the First Amendment should require prior
authorization by the Chief of Police. However, we do not agree that prior
authorization requires the review and concurrence of the City Attorney,
although in some cases the City Attorney may be asked for his/her legal opinion
relative to a surveillance or undercover operation.
Response: The
Scotts Valley Police Department AGREES.
Response: The Santa Cruz County Sheriff's Office
AGREES.
This recommendation requires further analysis. The Sheriff's Office, as
part of its normal policy review process, is revising several current policies
and implementing new ones. A revised
Criminal Intelligence policy is being drafted at this time and other police
agencies' policies on this subject will be consulted.
Response: The Watsonville Police Department
PARTIALLY DISAGREES.
The courts, through their decisions
on many issues including this one, provide the path to follow with counsel from
our legal advisors. It would be difficult at best to have a policy that covers
every First Amendment possibility. Having said that, we are in the process of adopting
new policies using a company, Lexipol, that is made up of lawyers that are
experts in the field of law enforcement policies that use as a basis to form
the policies: case law, statute law, and best practices. We will bring to their
attention, the
4.
The
City of Santa Cruz should carefully weigh recommendations by the American Civil
Liberties Union (ACLU) that Santa Cruz Police Departmental Directive Section
610 be expanded against the desirability of keeping Departmental Directive
Section 610 simple and easily understood.
Response from the Santa Cruz Police Department:
The recommendation has been implemented.
Working with the City Manager, City Attorney, ACLU and others the Santa Cruz
Police Department weighed the recommendations outlined by the ACLU and
Departmental Directive Section 610 has been finalized.
Response from the City of Santa Cruz:
The recommendation has been
implemented. Working with the City Manager, City Attorney, ACLU, and others,
the Santa Cruz Police Department weighed the recommendations outlined by the
ACLU and Departmental Directive Section 610 has been finalized.
5.
The
cities of Watsonville, Capitola and Scotts Valley, and the Santa Cruz County
Sheriff’s Department should consider contracting with an independent auditor
who is not employed by the police department to review those grievances by the
public that cannot be satisfactorily resolved within each department’s internal
affairs unit.
Response: The
Capitola Police Department DISAGREES.
The City of Capitola and the Capitola
Police Department has a Citizen Complaint process, which includes options for
both internal and external investigations conducted by either a member of the
Police Department or an independent contract investigator. Likewise, an appeal
process exists whereby citizens can appeal the findings of an administrative
investigation (internal affairs investigation) to the Chief of Police, City
Manager, or directly to the City Council.
Response: The
Scotts Valley Police Department DISAGREES.
Following an internal affairs investigation,
Scotts Valley Police policy requires that the complainant be advised that they
may take their complaint in the following order to: the city manager, the Santa
Cruz County District Attorney’s Office, any Judge of the Municipal Court, any
Judge of the Superior Court,
Response: The Santa Cruz County Sheriff's Office
DISAGREES.
This recommendation will not be implemented because it is not
warranted. There are sufficient methods
of reviewing complaints against members of the Sheriff's Office already in
place. There is not a demonstrated need to add another layer of review,
especially when the police surveillance described in this document was not
conducted by the Sheriff's Office.
Response: The Watsonville Police Department
DISAGREES.
Police have more oversight of any
profession including physicians, lawyers, and stock brokers; all of which
oversee themselves. If any principle party does not agree with an investigation
or finding of a department after an internal affairs investigation, they may
ask the
6.
People
taking part in protests and other public activities that claim protection under
the First Amendment must recognize the potential for events to spin out of
their control, and for criminal elements to attach themselves to those events,
creating real public safety problems that police must address.
7.
Residents
should take advantage of community outreach programs provided by police
departments, including ride-alongs, neighborhood watch programs, and jail
tours. These provide opportunities to get to know how police work in
non-emergency situations and can foster a positive rapport that will facilitate
mutual trust between the public and law enforcement.
1.
The
organizers of Last Night Santa Cruz for holding a peaceful event each of the
past two New Year's Eves.
2.
The
City of Santa Cruz for employing an independent police auditor.
3.
The Independent
Police Auditor for conducting a thorough investigation.
4.
The
Santa Cruz Police Department for taking corrective action and being among the
first municipalities in the nation to develop such a policy.
Entity
|
Findings
|
Recommendations
|
Respond Within
|
|
City
of Santa Cruz Police Department |
1.3,
2.1, 2.2, 4.1, 4.3-4.5, 5, 5.4-5.7 |
1-4 |
60
days September 1, 2007 |
|
City
of Capitola Police Department |
1.3,
2.1, 2.2, 4.1, 4.2, 4.3-4.5, 5, 5.1-5.7 |
1-3,
5 |
60
days September 1, 2007 |
|
City
of Watsonville Police Department |
1.3,
2.1, 2.2, 4.1, 4.2, 4.3-4.5, 5, 5.1-5.7 |
1-3,
5 |
60
days September 1, 2007 |
|
City
of Scotts Valley Police Department |
1.3,
2.1, 2.2, 4.1, 4.2, 4.3-4.5, 5, 5.1-5.7 |
1-3,
5 |
60
days September 1, 2007 |
|
Santa
Cruz County Sheriff-Coroner |
1.3,
2.1, 2.2, 4.1, 4.2, 4.3-4.5, 5, 5.1-5.7 |
1-3,
5 |
60
days September 1, 2007 |
|
Santa
Cruz City Council |
4.2,
5.4, 5.6-5.7 |
4 |
60
days September 1, 2007 |
Documents
Aaronson, Robert H., City of
Santa Cruz, Independent Police Auditor, report to Richard Wilson, Santa Cruz
city manager, March 20, 2006.
Criminal Intelligence
Systems: A California Perspective, Office of the Attorney General of
California, October 2003.
Code of Federal Regulations,
Title 28, Part 23, Criminal Intelligence Systems Operating Policies
Schlossberg, Mark, Police
Practices Policy Director, American Civil Liberties Union of Northern
California, Letter to Santa Cruz City Council, March 2006.
Schlossberg, Mark, Police
Practices Policy Director, American Civil Liberties Union of Northern
California, The State of Surveillance: Government Monitoring of Political
Activity in Northern & Central California, July 2006.
Schlossberg, Mark, Police
Practices Policy Director, American Civil Liberties Union of Northern
California, Letter to Santa Cruz City Council, July 2006.
Santa Cruz Police
Departmental Directive, Section 610, Undercover Operations—First Amendment
Activity, February 2006.
Santa Cruz Police
Departmental Directive, Section 610, Undercover Operations—First Amendment
Activity, revised July 2006.
Thompson, A.C., San Francisco
Weekly, Cops Who Spy, Sept. 27, 2006.
Web sites
The Last Night Santa Cruz DIY
Parade, http://www.seedwiki.com/wiki/last_night_diy.
The Last Night Santa Cruz DIY
Parade online discussion group, http://lists.riseup.net/www/arc/lastnightdiy.
Santa Cruz Sentinel – Online
Edition, www.santacruzsentinel.com.
University of California,
Santa Cruz, online News/Events, http://messages.ucsc.edu/05-06/12-28.response.asp.
San Francisco Chronicle, http://www.sfgate.com/, Associated Press story,
"Jury: WTO protesters’ rights violated," Jan. 30, 2007.
New York Times, http://www.nytimes.com, "Judge Restricts New
York Police Surveillance,"
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[1] http://www.seedwiki.com/wiki/last_night_diy/manifesto, Last Night Santa Cruz DIY Parade Manifesto.
[2] DIY Parade Manifesto.
[3] Report by Robert H. Aaronson to Richard Wilson, Santa Cruz City Manager, p. 2, March 20, 2006.
[4] Aaronson, p. 31.
[5] Aaronson, p. 31.
[6] Aaronson, p. 33-34.
[7] Aaronson, p. 33.
[8] Santa Cruz Police Departmental Directive Section 610, p. 1, July, 2006.
[9] S.C. Police Directive, p. 1.
[10] S.C. Police Directive, p. 2.
[11] S.C. Police Directive, p. 3.
[12] UC Santa Cruz Message from the Chancellor, Dec. 28, 2005.
[13] ACLU-NC report, “The State of Surveillance,” pp. 12-19, July 2006.
[14] ACLU, pp. 26-30.