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Government and People
Council of the District of Columbia
Final internal MPD version
Official version delivered to Mayor and Council
Captain Andrew Solberg
Captain Solberg related that once he arrived at Pershing Park, he met with Assistant Chief Brian Jordan and Assistant Chief Peter Newsham. Captain Solberg explained that he was then instructed to position his CDU platoon in such a way that it blocked off access to and from the south and east sides of the park. He was informed that everyone inside Pershing Park would be arrested.
Captain Andrew Solberg
Captain Solberg related that once he arrived at Pershing Park, he met with Assistant Chief Brian Jordan and Assistant Chief Peter Newsham. Captain Solberg explained that he was then instructed to position his CDU platoon in such a way that it blocked off access to and from the south and east sides of the park. He was informed that everyone inside Pershing Park would be arrested. The parade was conducted without a permit, and in violation of Title 18 of the DCMR (Vehicles and Traffic).
"Based on the testimony of the complaints in this case, it is probable that there were numerous individuals in the park that were not part of any groups headed toward the park under a continuous observation by the police. In other words, there is a strong possibility that persons were already in the park and had not committed any illegal acts prior to arrival of police units who proceeded to block off the area and prevent anyone from leaving. There is no evidence to support a claim that every person in the park had been involved in an unlawful advancement toward the park- either on foot or on bicycle."
"Based on interviews and other facts gathered in this case, it is possible that there were individuals in the park that were not part of any groups headed toward the park under continuous observation by the police. There is no evidence that the park had been cleared before the larger group of protestors was allowed to enter the park."
"Based on Assistant Chief Newsham’s explanation, the protestors in Pershing Park had committed violations before entering the park. Groups of protestors were marching in the street and were supposedly warned by officers to get back on the sidewalk. Assistant Chief Newsham essentially used the park as a roadblock of sorts, in which protestors who had already broken the law were stopped and arrested."
"Based on Assistant Chief Newsham’s explanation, the protestors in Pershing Park had committed violations before entering the park. Groups of protestors were marching in the street and were supposedly warned by officers to get back on the sidewalk. Moreover, a group of bicyclists had illegally traveled in a large group from Union Station toward the park, in violation of District of Columbia traffic laws. Assistant Chief Newsham essentially used the park as a roadblock of sorts, in which protestors who had already broken the law were stopped and arrested."
"The decision to arrest everyone in Pershing Park was not sound."
"It appears that the decision to arrest everyone at the park was based on incomplete information."
"It is more than probable that numerous persons inside the park had arrived there lawfully with no intent to commit any violations of the law. Several clusters of demonstrators that committed separate violations were all combined into one large group in the park and charged with Failure to Obey a Police Officer. To further support this assumption, at least five members of the Press were released on the Detention Journal later that afternoon, indicating an improper arrest. Furthermore, every case in which demonstrators did not elect to forfeit and had his or her case presented to the Office of Corporation Counsel was dismissed by that office. (footnote: Each of these cases was dismissed because none of the officers could properly attest to which demonstrator was warned – none of the arresting officers could provide testimony to support the claim of failure to obey.)
"It is possible that numerous persons inside the park had arrived there lawfully. Several clusters of demonstrators that committed separate violations were all combined into one large group in the park and charged with Failure to Obey a Police Officer."
"However, it cannot be established that all of those persons in the park were part of any particular group engaged in unlawful behavior. The fact that command officials and arresting members could not make a distinction between those that were engaged in unlawful behavior and those that were not, tainted those arrests that were timely and proper."
"However, it cannot be established that all of those persons in the park were part of any particular group engaged in unlawful behavior."
"The examination of the Pershing Park arrests has conclusively revealed that no warnings were given to demonstrators at the park."
"The examination of the Pershing Park arrests has revealed that no warnings were given to demonstrators at the park."
As the chart shows, the original report’s strong language condemning MPD’s actions at Pershing Park was weakened in several instances in the final version. Of particular interest is the manipulation of the report’s characterization of the bicycle demonstrators who were corralled and arrested in Pershing Park along with those demonstrators allegedly guilty of blocking traffic and turning over newspaper boxes prior to their arrival at Pershing Park (Assistant Chief Newsham testified that he had given the second group of demonstrators warnings to get out of the street some time earlier that morning. The bike demonstrators were not present when Assistant Chief Newsham apparently gave those warnings).
The final report states that the bike demonstration was illegal and emphasizes that the bike demonstrators broke the law by obstructing traffic. It is true that the bike demonstration was not permitted, but un-permitted demonstrations by themselves are not suitable grounds for arrest. It is further true that Captain Solberg, who commanded the CDU that followed the bike demonstrators around the city that morning, stated during his OPR interview:
A: I would think that the bicycle protestors, although they were bicycling fairly slowly along the streets, at no point near Pershing Park, ever stopped and blocked an intersection or created a mass demonstration, focal point, and they were never that I heard, addressed as a group and told that they were infringing any laws.
Q: Were they disruptive when you arrived with them?
A: Certainly disrupted traffic, but that’s, I think they were, I don’t think they were breaking any laws other than the bicycle laws maybe of riding, and that any riding against the red light or anything like that, I think they followed all applicable bike regulations for the city.
While obstructing traffic may be a violation of the law, during his deposition before the Committee, Captain Solberg characterized the bike demonstrators as peaceful and not violent in any way, a characterization confirmed by the testimony of Sergeant Darrick Ross, who also commanded the officers following the bike demonstrators. Further, the only law the bike demonstrators were arrested for violating was Failure to Obey a Lawful Order. Captain Solberg never heard any orders given to the bike demonstrators.
Finally, Captain Klein’s original recommendations were changed between the first and final versions, a direct violation of General Order 1202.1. For example, a recommendation that command staff officials receive additional CDU training was changed to a recommendation with an entirely different meaning, that the command structure be re-examined to ensure that officials receive "timely and accurate information from which to base decisions on." Chief Ramsey testified that he asked for this specific change because he disagreed with Captain Klein’s opinion on this issue, and that the command staff would not benefit from the same kind of training received by CDU rank and file officers.
Captain Klein’s original recommendation was based on the investigation conducted by Sergeants McCoy and McGuire, which found an Assistant Chief without standard CDU training making a decision in violation of MPD policy, resulting in the improper arrest of hundreds of demonstrators.
Chief Ramsey’s March 13, 2003 memo to Mayor Williams delivering the final version of the report states "I reviewed the January 25, 2003 report prepared by the Civil Rights & Force Investigations Division of the Office of Professional Responsibility and concurred with the findings." An ironic statement considering the fact that some of the findings were directed by Chief Ramsey to be changed into a form with which he could agree.
The Metropolitan Police Department violated its own general orders by failing to promptly initiate a formal investigation of the wrongful arrests and detention when questions about their legality were raised immediately by MPD officials, the Office of Corporation Counsel, the media, and the Council.
General Order 1202.1, Disciplinary Procedures and Processes, Part I. A. g. 7., states that "Upon observing or becoming aware of a violation of Departmental regulations, officials shall initiate an immediate preliminary investigation." This was not followed in the Pershing Park case, and according to MPD testimony is routinely violated insofar as demonstrations are concerned. According to the deposition testimony of Inspector Stanly Wigenton, Director of MPD’s Office of Internal Affairs, it is not standard practice for his office to review after action reports following mass demonstrations. Inspector Wigenton testified that the office of Assistant Chief Alfred Broadbent, Special Services, has this responsibility, and any violations reported in after-action reports are supposed to be reported to the Office of Internal Affairs to be properly tracked and investigated. The testimony of Inspector Josh Ederheimer confirmed this interpretation of MPD practice. Inspector Ederheimer testified that the Office of Professional Responsibility is essentially "re-active" in its investigations, typically starting an investigation only after receiving a complaint. Despite the strong denunciation of the arrests by MPD officials in after-action reports the department failed to investigate its own actions until forced to do so by Mayor Williams following repeated requests by the chairman of the Judiciary Committee.
At the direction of Chief Ramsey and in violation of MPD general orders, changes were made to the investigative report after it was completed by the Office of Professional Responsibility. The changes served to weaken criticism of the Department and the nature of the arrests.
The Committee finds this chain of events for a confidential OPR investigative report to be extremely problematic and a violation of MPD general orders. Chief Ramsey’s involvement in the production of an internal investigative report regarding a situation in which he was personally involved is highly unusual, inappropriate, and degrades the overall integrity of the investigation itself.
Further, if Chief Ramsey simply did not concur with the recommendations of the report, then he had the option of not acting on its recommendations while permitting the integrity of the report itself to stand. Unfortunately, this did not occur and Chief Ramsey instead directed that his opinions take the place of the findings of the investigating officials.
Again, the only appropriate place for Chief Ramsey’s opinion on this matter is whether or not to accept the recommendation of the investigating officials, not whether or not to let the recommendation, based on their investigation, stand in the report.
The decision to have Executive Assistant Chief Fitzgerald interview Assistant Chief Newsham was a clear conflict of interest given EAC Fitzgerald’s role during the arrests. It also appears to have violated a general order giving the right to interview officials to the investigating officers as well as the MPD’s Memorandum of Agreement with the Department of Justice on use of force.
EAC Fitzgerald was on the scene of Pershing Park before, during and after the arrests were made and engaged in conversations with Assistant Chief Newsham prior to Assistant Chief Newsham’s order to arrest the demonstrators at Pershing Park. Therefore, EAC Fitzgerald, who testified to having approved Assistant Chief Newsham’s actions on the scene at Pershing Park, had an obvious conflict of interest with respect to the subject being investigated, and should therefore have not been involved in the investigation.
EAC Fitzgerald and Chief Ramsey testified that they did not have conversations about what questions to ask Assistant Chief Newsham. But EAC Fitzgerald’s selectivity with respect to the questions asked rendered the investigation incomplete, at best.
MPD General Order 1202.1, Disciplinary Procedures and Processes, states that "any official who conducts an internal investigation (hereinafter referred to as the investigating official) may require any other member to cooperate in such an investigation" (Part I. E, Internal Investigations). Part I. E. 2. Investigative Procedures states that:
"In addition to any other authorized methods, investigating officials shall utilize the following investigative procedures when appropriate:
a. Interviewing departmental members.
(1) Members may be ordered to appear before the investigator at a reasonable time and place to submit to questioning and investigation."
This language indicates that internal affairs investigators have the authority to interview officials regardless of rank, and knowledgeable investigators, not the second in command in the department, clearly should have interviewed Assistant Chief Newsham in this instance. Not only would the interview have been more comprehensive, it would have precluded the conflict that exists given EAC Fitzgerald’s presence during the arrests and the subsequent perception that the role of his superior, Chief Ramsey, in the arrest order was off limits to the investigation.
In addition, EAC Fitzgerald’s involvement in the investigation was a violation of MPD’s Memorandum of Agreement with the Department of Justice on use of force. Section 80 of that agreement states:
MPD shall prohibit any officer who has a potential conflict of interest related to a pending investigation from participating in any way in the conduct of review of that investigation.
The interview conducted by EAC Fitzgerald was incomplete.
As indicated in the text above, Fitzgerald failed to ask questions drafted by the investigative team, including failing to bring forward the complicity of other senior officials in the decision to arrest individuals at Pershing Park.
The investigation and release of the final report were marked by evasions and misstatements by senior officials including Chief Ramsey, giving rise to the appearance of an attempt to cover up Chief Ramsey’s role in ordering the Pershing Park arrests.
As indicated above, the evening of the Pershing Park arrests Chief Ramsey was asked by reporters about charges that the arrests were mishandled. In his written deposition issued October 10, 2003, Ramsey was asked, "When did you first become aware that citizens and arrestees were complaining about the legality of MPD actions surrounding the September 27, 2002 mass arrests at Pershing Park?" His response:
I became aware of the complaints concerning MPD’s actions at Pershing Park after some members of the public testified at an October 23, 2002 hearing of the Committee on the Judiciary of the Council.
This answer fails to recall concerns brought directly to Chief Ramsey’s attention at the September 27, 2002 press conference, as transcribed above, and the extensive media coverage that followed the arrests.
In response to another question from the October 10, 2003 written deposition, "Prior to the Council Committee on the Judiciary’s receiving testimony on this matter on October 24, 2002, did you request or order any review of or investigation into MPD actions at Pershing Park?," Chief Ramsey replied: "A review is conducted after every major event in order to identify and solve any problems that occurred during the event."
This answer belies the fact that the after-action reports written following the Pershing Park arrests did not result in any official investigation. Chief Ramsey did not actually direct OPR to investigate allegations of illegal arrest and excessive force until November 12, 2002, after a November 6, 2002 written directive from Mayor Williams. The fact that OPR was not asked to investigate the Pershing Park arrests until after the testimony before the Judiciary Committee was substantiated by the deposition testimony of the officials who supervised and conducted the OPR investigation, including Inspectors Stanly Wigenton and Josh Ederheimer, Captain Matthew Klein, and Sergeant James McGuire.
This delay, in addition to questionable aspects regarding the conduct of the investigation itself, raises serious questions about MPD’s ability to investigate allegations of misconduct in a timely, honest, and thorough manner.
The Department created a conflict of interest by assigning Assistant Chief Newsham, Director of the Office of Professional Responsibility, to an operational role during the September 2002 demonstrations, a conflict that continues to exist.
Despite the obvious conflict created by Assistant Chief Newsham having both operational and internal investigation responsibilities, since the Pershing Park investigation he has continued to have an operational role during demonstrations. In fact, Assistant Chief Newsham was an area commander during an anti-war demonstration on April 12, 2003, a day that generated five excessive force complaints to the Office of Citizen Complaint Review and another complaint to the Committee, the complaint from Margaret Luck that is discussed in the "Inauguration, Pepper Spray, and Self-Policing" section of this report. The Committee recommends that the practice of assigning the Assistant Chief of the Office of Professional Responsibility to operational duties during demonstrations cease immediately.
Any questions about the legality of mass arrests, excessive force, or information indicating a violation of MPD policies contained in mass demonstration after-action reports should be automatically referred to the Office of Professional Responsibility and investigated immediately and thoroughly. This likely requires a more formalized interaction between the office of the Assistant Chief, Special Services, and the office of the Assistant Chief, Office of Professional Responsibility, following a mass demonstration.
Investigations of actions of Assistant Chiefs and the Chief of Police should be referred to the Office of the Inspector General and not handled internally by the Department.
The Assistant Chief of the Office of Professional Responsibility should not have an operational role during mass demonstrations.
MPD units and individuals outside of the Office of Professional Responsibility (OPR) should not participate in OPR investigations in any operational way.
Officials reviewing investigative reports should denote, in writing, their comments and recommended changes to reports and requests for further investigation, pursuant to MPD policy.
At the time of the inspection of the convergence center described earlier in this report, MPD was just beginning to use undercover officers to monitor the planning and activity of individuals and organizations involved in demonstrations. MPD’s use of undercover officers to monitor political activists has been controversial and is currently the subject of litigation. In the civil action, Alliance for Global Justice, et al v. District of Columbia, et al, the plaintiffs allege that "[a]gents posing as political activists infiltrated the demonstrators’ organizations and informal groups." Plaintiffs object to this tactic as an unconstitutional form of domestic spying, reminiscent of the Federal Bureau of Investigation’s COINTELPRO program during the Vietnam war and creation of the so-called "Red Squads."
This MPD practice has received surprisingly little public scrutiny beyond the current litigation and this Committee investigation. Both constitutional and public resource issues arise from the use of MPD officers to infiltrate and collect data on political organizations and represent serious public policy questions. As described earlier in this report, in 1975 and 1976, it was discovered that MPD was conducting surveillance of and maintaining files on local political activists, including former Councilmembers. The Council at that time held public hearings and introduced legislation on the matter, and MPD implemented reforms, including a new general order governing the practice. The Council today, as it did then, has a responsibility to examine MPD’s policies and practices in this area, consider the practices in a public forum, and determine and establish the appropriate policy for the District of Columbia.
The Committee examined MPD’s use of undercover officers through the issuance of document subpoenas and by conducting depositions of Intelligence Unit officers and employees, including Sgt. Jeffery Madison; former Detective Neil Trugman; Craig Broyles, a civilian analyst; and Assistant Chief Alfred Broadbent. The Committee also conducted depositions of MPD officers who formerly worked undercover in order to collect information on the plans and activities of political activists engaged in demonstrations.
Nature of Surveillance by Undercover Officers
The Committee found that the MPD conducted and does conduct surveillance of political organizations for the purpose of learning the nature and details of plans for upcoming demonstrations. MPD does this in different ways, but primarily by monitoring information that is publicly available on the Internet and through other media; sending "plain" or "casual"-clothes or undercover officers to open meetings of organizers; and by conducting surveillance of organizations through the use of undercover officers.
In both his deposition and public testimony, Assistant Chief Broadbent objected to the Committee’s characterization of the work of undercover officers as "infiltration" or surveillance. Assistant Chief Broadbent testified that undercover officers were merely attending public meetings, and that some undercover officers became friends with the organizers and stayed involved with activist groups because of those friendships.
Notwithstanding Assistant Chief Broadbent’s effort to minimize the act of infiltration by referring to it as "attending public meetings," undercover officers participated in meetings and activities not as police officers, but as individuals pretending to be activists. They were instructed to and did create false names and fictional personal histories, and dressed in a manner to make them appear sympathetic to the various causes of activists. Using these false identities, they became active members of the organizations – attending meetings, sometimes taking on organizing responsibilities, and participating in demonstrations. Undercover officers, in the words of those former undercover officers interviewed by the Committee, were instructed to "absorb," "infiltrate," or "burrow" themselves into organizations. After undercover officers attended any event in the guise of their false identity, or had any other encounter with an organization, they documented information about the event, including what occurred, what was discussed and who had participated. Within twenty-four hours of the event or activity, this information was summarized in an "undercover officer report" or "UC report" that was then transmitted to MPD’s Intelligence Unit. UC reports were then summarized by Craig Broyles and Sgt. Madison and submitted to their chain of command, including Assistant Chief Broadbent and Chief Ramsey.
In his deposition before the Committee, Assistant Chief Broadbent testified that he was aware that this activity took place, but that he does not believe it constitutes infiltration or surveillance. Assistant Chief Broadbent and Sgt. Madison testified that undercover officers were used not to collect information on the political beliefs or personal details of individuals, but to find out whether activists were planning illegal activity or activity that would affect public safety. Assistant Chief Broadbent testified that "the only information I’m seeking is information that would impact public safety…Police officers are told to attend the meetings to listen and observe and hear if there’s anything that’s going to have an impact on public safety in Washington because my goal is to keep the citizens of this city safe and to avoid a Seattle in Washington."
One former undercover officer testified that the goal of attending meetings was to get into meetings, see if groups were planning civil disobedience "or any other type of criminal activity" and to then focus efforts on those groups. Another former undercover officer testified that "the instructions were to attend the meetings, try to make friends, and try to find out who the key players are and keep our eyes and ears open for activity."
But the nature of the undercover officers’ assignments, in reality, was much more intrusive than the limited purpose articulated by Assistant Chief Broadbent and Sgt. Madison. Undercover officers’ monitoring of demonstrators was not limited to periods of time immediately before demonstrations or to events related to demonstrations. They monitored the activities of groups for up to a year at a time, and they monitored activities that went beyond the scope of planning for demonstrations or civil disobedience. Because they formed relationships with activists under the guise of their false identities, undercover officers often accompanied individuals on other group activities not related to demonstrations, and reported to the Intelligence Unit on these activities as well. One former undercover officer described the extent of its monitoring of activists this way:
A: There’s many groups. And the same people frequent the different groups. You can have one person…[who] would be in four or five different groups. And once you make friends with the key people, they expect you to enter all the different groups with them…
Q: Let’s say hypothetically, so I can understand this, you’re in an undercover capacity so you have an identity that you have to maintain and you’ve developed friendships that you have to maintain. And this is beyond the meetings, you have to have social activities and so forth?
A: You become one of them.
Q: And if you’re friendly with some of them, and let’s say they go to an organization, I’m just going to throw this out there, say Martha’s Table that provides food for people in the city and it’s not affiliated [with demonstrations]. But you would go with them to a place like that?
A: Yes, ma’am.
Q: And when you would go to these places, like homes and places that are plainly not affiliated…when you would make your reports about what you did that day, would you include all of these other references, even if they weren’t directly related?
A: Yes ma’am. It’s a running resumé of what I did for that day. Because I’m still accountable for what I do. Although I’m not at a district and I’m not pushing a scout car for eight hours, I’m still being paid for eight hours, and you still keep account of what you’ve done for that entire day.
Q: And in that account would you include, for example, new people that you met?
Q: And you wouldn’t necessarily know these people to be involved in or planning to be involved in a protest but you would still include them in the running resumé?
A: Yes, ma’am.
This exchange illustrates the broad scope and intrusiveness of the undercover officers’ surveillance of individuals. It created a situation where the every day activities of individuals were reported to law enforcement, unbeknownst to them, regardless of whether the every day activities were criminal or even relevant to the planning of upcoming demonstrations.
No Policy Guidance Given to Undercover Officers
Despite the complex legal questions and extensive constitutional case law surrounding the surveillance of political activists in this country, each undercover officer interviewed by the Committee testified that such officers do not undergo any relevant training before beginning their assignments as undercover officers. Sgt. Madison confirmed that undercover officers do not receive any training before being deployed. In addition, between 2000 and December 2002, undercover officers were not provided with any written guidelines, general orders or other policy documents to follow while conducting surveillance. This is despite the fact that according to press reports from 1975 to 1976, then-Chief Maurice Cullinane issued a general order specific to this kind of activity. The following is an excerpt of deposition testimony of former undercover officers received relative to this issue:
Q: So, to help me understand this, I want to see how much preparation you were given before you started…It was very minimal?
A: You were thrown in there.
Q: So they simply identified a group and said – Go.
A: Basically, yes…
Q: I take it then by what you said that neither Sgt. Madison nor your control officer told you about limitations in terms of not going into peoples’ houses or things of that nature?
A: Oh no. Limitations were never discussed.
Sgt. Madison also testified that undercover officers were not given any written or even oral guidelines about what sort of activity or non-criminal information would be inappropriate to pursue, including, for example, personal information or information about religious beliefs.
Another former undercover officer was asked similar questions:
Q: Were you given any guidelines, written or oral, about the kinds of things you should be looking for or the activities you should be engaging in when you attended these meetings?
A: I was not provided anything in written guidelines. The only really oral guidelines that I received …[included to] document any information that I had as a result of those meetings…I was told to participate at a level to where I would be accepted into the groups.
This testimony is supported by MPD’s responses to document subpoenas issued by the Committee. The Committee requested all current policy documents, general orders and regulations relevant to handling demonstrations, as well as any relevant written policies that came out of litigation related to the May Day demonstrations in 1971 and the Council policy debate related to MPD’s surveillance of political activists in the mid-1970s. Only one document provided to the Committee governs the activity or behavior of undercover officers, standard operating procedures (SOP) issued in December 2002.
This SOP was issued approximately two years after MPD began to use undercover officers to prepare for demonstrations. In public hearing testimony on December 18, 2003, Chief Ramsey acknowledged that the SOP had not been formalized as a general order and that that step should occur.
Surveillance in the Absence of Criminal Activity
The December 2002 SOP also does not include policy guidance regarding the circumstances under which it is appropriate to use undercover officers to conduct surveillance. For example, there is no policy requirement that undercover officers be used for surveillance purposes only when there is a reasonable suspicion that individuals or a group of individuals are engaged in or planning criminal activity, though Sgt. Madison testified that this was the deciding factor in practice. While Assistant Chief Broadbent testified that undercover officers were only used for the purpose of collecting information about suspected illegal activity or activity that would affect public safety, testimony received by the Committee indicates that undercover officers were also used for months at a time to monitor nonviolent activists not engaged in criminal activity. The Committee further found that there was often no distinction made by MPD management and officers between minor acts of civil disobedience and criminal activity.
The Committee interviewed one former undercover officer who monitored the activities of a group of activists for several months, during which time the officer did not observe any criminal activity:
Q: When you were attending these meetings…did you ever have occasion to observe criminal activity?
A: No ma’am.
Q: At any point did you question whether your continued involvement with these groups made much sense?
A: Yes ma’am.
Q: And can you tell us what the reaction to your questioning was?
A: I went and met with the command staff of the intelligence division and explained to them … other than civil disobedience I was not uncovering any criminal activity, such as what was seen in Seattle. I was not uncovering any plans for things of that nature.
On the other hand, each former undercover officer interviewed by the Committee clarified that there were several groups that they monitored that were nonviolent and not involved in criminal activity, but that associated with or supported individuals or groups involved in criminal activity. For example:
Q: At what point did you pretty much establish the fact that the group you infiltrated was not involved in any criminal activity, approximately?
A: The group as a whole was not, per se, involved in criminal activity other than civil disobedience, blocking the street, things of that nature. But, as a whole there were parts to that whole that I believed were either planning or capable of planning to carry out much greater acts of criminal activity. And that’s where I was attempting to kind of feed myself and it just never matured.
Another former undercover officer testified about infiltrating a group that planned and implemented acts such as blocking sidewalks and intersections, slashing tires of police cars, and rushing businesses for the purpose of breaking windows and damaging merchandise. The same officer described a group’s plan to take over a building, a plan that was ultimately foiled by MPD because of the information provided in advance by the officer. Each of the former undercover officers interviewed by the Committee testified that they believed that through their assignments, they were able to prevent disruption of the city during demonstrations by providing MPD with information that would not have been otherwise publicly available.
Nonetheless, the former undercover officers interviewed by the Committee testified that they never observed any violence or any criminal activity beyond minor property damage. They testified that they never observed the use of or planned use of explosives, molotav cocktails or weapons, either during demonstrations or at any other time. The one exception with respect to weapons was that some individuals were observed by the witness carrying the knives that were used to slash tires in the incident described above.
Assistant Chief Broadbent testified that the information gained through the use of undercover officers prior to the January 2001 Presidential Inauguration helped to prevent a "catastrophic event" in the District, but he declined to provide any additional details of this event or any other event prevented through the use of undercover officers, citing law enforcement privilege. More broadly, he testified that MPD was able to prevent planned property damage and violence to individuals by sending police officers to specific locations or individuals that were alleged to be targeted. Sgt. Madison testified that he believed the use of undercover officers prevented millions of dollars worth of property damage in the District, as well as the disruption of people’s lives. He also said the work of undercover officers prevented minor criminal acts from escalating into serious violence.
Maintenance of Information on Activists
Among the constitutional concerns related to law enforcement surveillance of political activists, in addition to concerns about the invasion of individuals’ privacy, are concerns about what kind of information is collected on individuals and how that information is maintained. After revelations about the FBI’s COINTELPRO program became public, it was discovered that the FBI was maintaining files on political activists based on constitutionally protected content, for example, political ideology, in the absence of criminal activity. Through the use of document subpoenas and deposition testimony, the Committee attempted to establish whether MPD has a policy of or is in the practice of maintaining files on individual political activists.
In response to requests through a subpoena for "All documents related to MPD’s policy on the collection of information and maintenance of files of demonstrators," MPD responded that "We have not located any documents that are responsive to this request." In response to a request for copies of all records or dossiers on specific activists, MPD responded, "We have not located any responsive documents. If these persons were arrested, the department might have records of their arrests." The SOP on the use of undercover officers does not include any policy guidance on how to maintain information, or about what methods of maintaining information would be unconstitutional.
The former undercover officers interviewed by the Committee testified that the extent of their maintenance of files was limited to the UC reports that they submitted to their chain of command, as described above, and that they did not know what happened to those UC reports once they were submitted to the Intelligence Unit. They testified that they would record names of individuals involved in certain organizations in a general sense, but that they were not in the practice of identifying individuals and recording identifying information in detail. One former undercover officer testified to paying particular attention to and recording the activity of "key players" in the organization, or of individuals particularly antagonistic to the government and likely to cause "trouble" during demonstrations.
The Committee did receive testimony about a manual or book maintained by the Intelligence Unit that contains information, including some photographs, of demonstrators arrested during the April 2000 IMF/World Bank demonstrations. Both Craig Broyles and Sgt. Madison testified, however, that the information was limited to people with arrest records and that this practice was not repeated after April 2000 because it was too labor-intensive to do regularly.
Both Sgt. Madison and Craig Broyles testified repeatedly that the Intelligence Unit does not maintain files or dossiers on individual political activists. Mr. Broyles testified that the only files he keeps related to activists and demonstrations are in the form of UC reports or "source material," including, for example, information from the Internet. Sgt. Madison gave similar testimony. They both testified that the information collected by the Unit in relation to demonstrations is event-driven and focused on activities, planned or actual, of activists. Sgt. Madison testified that after a demonstration has taken place, these files may be purged, depending on space needs in the office.
The Committee did review a sample of redacted memos submitted by the Intelligence Unit through the chain of command that were presumably based on UC reports. These memos listed general information about plans for demonstrations, including for example, the number of people expected to participate and whether any civil disobedience was being planned. Some memos do appear to include information about the activity of key organizers in certain groups.
Assistant Chief Broadbent also testified that the information he maintains is related to specific events, and that he does not keep track of individual activists. In his prepared testimony, however, he referred to a conference on civil disobedience held at American University in January 2000 which featured speakers who, he said, had been leaders of the demonstrations in Seattle the previous December. Asked by Special Counsel Mary Cheh how he knew that these individuals were leaders of the demonstrations when MPD did not keep dossiers on such individuals, Broadbent said, "We had met with Seattle authorities…We had discussed with Seattle who some of their key players were, and what worked, what didn’t work for them. So we could learn from their mistakes and implement things they thought did work." With regard to the conference, he said police officers attended in plain clothes, "and from that they brought back information from individuals who said that they were involved in Seattle, what they did in Seattle, what you can do to overcome law enforcement, how you can bottleneck law enforcement."
Notwithstanding the testimony by MPD leadership that the department does not keep files on individuals engaged in demonstrations, the department’s operational planning documents name specific leaders of specific organizations. While this information is already in the public domain (media, Internet) it also apparently is or was maintained in some form in order to be included in department planning documents. In the operational plan for the April 2000 IMF-World Bank meeting, the department described "Reclaim the Streets" as an international organization with local chapters pressing for more walking, cycling and use of public transportation. "Washington D.C. does not have a chapter, however, a representative from the New York City chapter, Chuck Reinhardt, has attended meetings of the Mobilization for Global Justice and plans to continue coming down on a regular basis," the plan notes. It also listed "key organizers" of each major organization involved in the April 2000 demonstrations, noting in each case "no photo at this time."
In addition, a briefing for Councilmembers on March 29, 2000, included a handout with a page that listed a total of 10 names and affiliations of "key organizers" of the anti-globalization protests. Finally, an instruction also included in the April 2000 planning documents with reference to an event the weekend before the international meetings, states: "Photographs and video will be taken of individuals believed to be coordinators of the upcoming IMF/World Bank event."
Allegations of the Use of Agent Provocateurs
Another concern about the constitutionality of the use of undercover officers relates to the potential for undercover officers to disrupt protected political organizing, either through their mere presence or through their actions. In civil action International Action Center, et al v. United States, et al (including the District of Columbia), the plaintiffs allege that MPD has a policy and practice of disrupting protected First Amendment activity through the use of agents provocateur. Related allegations have included the use of plain-clothes officers to initiate physical violence during demonstrations; and the use of undercover officers to pose as organizers and either encourage illegal activity within organizations, or take on organizing responsibilities that would then not be fulfilled.
Through testimony and a review of MPD policy documents, the Committee did not find any evidence substantiating that MPD has a policy of using undercover officers to disrupt political organizations in this manner. In fact, MPD policy as articulated in deposition and public hearing testimony is for undercover officers to observe rather than to participate.
Some of the deposition testimony of former undercover officers substantiated this policy directive in practice. One officer testified:
Q: So would that mean, if someone asked you to participate in planning, that you might do something like that?
A: …Just a mild or medium level of participation. We were told not to participate in the actual tooth and nail planning of any type of civil disobedience or criminal activity but to gather information on those things.
The former undercover officers testified that they were never instructed by MPD officials, nor did they ever on their own, encourage illegal activity within the organizations they infiltrated. They also testified that they never intentionally disrupted organizations by not carrying out organizing responsibilities, though one officer testified to being instructed by MPD officials to not undertake or fulfill any responsibilities that required illegal activity or acts of civil disobedience.
Sgt. Madison did testify that there was one incident in which an undercover officer made a statement in a meeting encouraging illegal behavior. Sgt. Madison testified that when this incident came to his attention through a UC report, he counseled the officer in question and instructed the officer to refrain from similar behavior in the future.
Beyond this example as described by Sgt. Madison, the Committee was not able to confirm with certainty whether there have been instances of agent provocateur-type behavior on the part of MPD officers in practice, as has been alleged. But the Committee has not investigated each of the allegations that has been made, nor was doing so part of the scope of the Committee investigation, which was more focused on questions of policy and general practice than on specific instances of misconduct. The Committee, nonetheless, is concerned that allegations of the use of agents provocateur have not been taken seriously or thoroughly investigated by MPD.
MPD assigned undercover officers to conduct surveillance of political organizations and activists in the absence of criminal activity.
Though plans for some minor criminal activity, primarily property damage and plans to disrupt traffic, were uncovered through the use of undercover officers, the question remains for policymakers whether the extent or degree of activity justified the invasion of privacy and dedication of resources required to conduct the undercover operation. The Committee also found a troubling tendency of MPD officials and officers to equate nonviolent civil disobedience with serious criminal acts and threats to public safety.
The Committee has received testimony about the profound chilling effect the use of undercover officers has had on local activists in recent years, activists who have opened their homes and lives to police officers who subsequently reported on their daily activities. Considering the amount of serious violent crime that continues to plague the District and the overwhelming concern in neighborhoods about the need for a more visible police presence, the questions for policymakers must be: Should MPD officers be used in this way? And is it worth it? Having established that MPD did use undercover officers to conduct surveillance of political activists, the Council now has a responsibility to answer these questions with legislative remedies.
MPD assigned undercover officers to conduct surveillance of political organizations and activists without giving those officers any relevant training or policy guidance. MPD did not issue any guidelines in this area until December 2002, over two years after it started using undercover officers for this purpose. Current guidelines are not sufficient.
Given the constitutional complexities and history associated with the surveillance of political activists, including a policy debate in the District in the mid-1970s spurred by similar MPD tactics, it was a significant failure on the part of MPD management to initiate such an operation without any policy guidance or instruction to those officers assigned to work undercover.
In addition, the two-page SOP issued in December 2002 is not as comprehensive as is called for given the legal complexities. There is no threshold provided as to when undercover surveillance of an organization is warranted, for example, that it should be conducted only when there is reasonable suspicion that an individual or organization is planning or participating in illegal activity. There are no instructions on what kind of information should be maintained on groups and individuals, including what methods of maintaining information are acceptable or may be unconstitutional.
The Committee found no clear evidence that MPD maintains dossiers on individual political activists, but MPD does document political activity in the absence of policy guidance.
MPD does maintain "running resumés" on the activities of individuals, in the form of reports that track the interaction of undercover officers with political activists. These reports summarize daily activities of individuals beyond planning for demonstrations without regard for whether the activities are criminal.
In addition, as noted above, there are no safeguards in place to prevent inappropriate collection of information on individuals. There is also no standardized method of purging information on individuals not related to criminal activity or plans for criminal activity.
Finally, notwithstanding MPD testimony on this point, it is not clear what the Intelligence Unit’s policy is with respect to the maintenance of information on individuals actually engaged in serious criminal activity. MPD simultaneously claims that the Unit collects information by events, but also claims that some individuals are of concern because they engage in criminal activity. In the event that MPD has a legitimate concern about a particular individual it is not clear how information is stored in an easily accessible way to achieve MPD’s stated goal of protecting public safety.
The Committee found no evidence that MPD has a policy of using agents provocateur, though specific allegations of this kind of activity have not been sufficiently investigated.
The most compelling allegation of the use of agents provocateur was the pepper spray incident described earlier in this report (see "Inauguration, Pepper Spray and Self Policing" section of this report). That instance alone should have prompted a thorough examination of individual officers’ actions in this area.
MPD should conduct intelligence operations solely for a legitimate law enforcement purpose.
Before police undertake surveillance of any group engaging in constitutionally protected expression or freedom of association, there should be reasonable suspicion to believe that the group is engaging in, planning to engage in, or about to engage in criminal activity.
MPD should be prohibited from using undercover officers to conduct surveillance of individuals or organizations based solely on the content of their political speech or ideology.
Surveillance in this context should be expressly approved by the Assistant Chief for Special Services, be time-limited in duration, and be conducted in a manner that is not more extensive or intrusive than is justified by its purpose.
MPD should be required to have an internal oversight mechanism once an undercover operation is underway that, on a regular basis, reviews the activity of and information gained by undercover officers and determines whether undercover surveillance is still warranted.
Officers engaged in surveillance should report regularly to the Assistant Chief for Special Services. MPD should immediately cease such surveillance once facts made known to them no longer support reasonable suspicion.
MPD should be prohibited from maintaining files or dossiers on individuals in the absence of criminal activity and be required to purge files unrelated to criminal activity.
MPD should be prohibited from using agents provocateur.
One of the most serious findings of the Committee’s investigation is a pattern of evasion and misrepresentation by Chief Ramsey and senior members of his command staff. In statements made on the public record over the last three years, in deposition testimony, in answers to questions posed in the course of U.S. District Court litigation, and in responses in the panel’s public hearings in December, members of the senior ranks in the Department sought to evade direct answers to important questions and, in some instances, misrepresented the record and their role in Departmental actions.
Many of these examples have been described in earlier sections of this report. The gravity of this finding merits clear delineation of the record established by the Committee and that is the purpose of this section of the report.
Prohibited conduct for an officer of the Metropolitan Police Department includes making a false statement, an offense with a penalty ranging from 15 days suspension to removal. The definition of the offense, contained in the MPD General Order 1202.1 follows:
Willfully and knowingly making an untruthful statement of any kind in any verbal or written report pertaining to his/her official duties as a Metropolitan Police Officer to, or in the presence of any superior officer, or intended for the information of any superior officer, or making a untruthful statement before any court or any hearing. [emphasis added].
The specifics findings of misrepresentation and evasion follow.
In February 2003 testimony before the Council Chief Ramsey denied that he had a role in the decision to arrest individuals in Pershing Park in September 2002.
Once it became clear that the mass arrests made at Pershing Park on September 27, 2002, were and would remain controversial and bring criticism to the Williams Administration, Chief Ramsey and his immediate subordinates sought to minimize the chief’s own role in the decision and the outcome. The following outlines Chief Ramsey’s changing public statements with regard to the arrests at Pershing Park – first his statement the day of the arrests, then his response to direct questions at a Judiciary hearing on February 25, 2003, and finally an exchange with Special Counsel Mary Cheh during the December 18, 2004 hearing.
At a press conference in front of MPD Headquarters the evening of September 27, 2002, the day 647 demonstrators were arrested, approximately 400 of them in Pershing Park, with Mayor Williams and Deputy Mayor Kellems present, this exchange took place between a reporter and Chief Ramsey:
Reporter: "A number of the protestors have said they were never given warnings before they were corralled by your officers and arrested. How do you answer that?"
Chief Ramsey: "Well, I mean we gave warnings. I mean, when you’ve got large groups like that, obviously, I mean there’s a lot of noise and things like that. But we gave warnings, we followed everything by the book."
Reporter: "Did your officers use bullhorns at 15th and Pennsylvania Avenue?" [southwest corner of Pershing Park]
Chief Ramsey: "I wasn’t there at the time but we gave verbal commands…people to get out of the street. But remember, they had no business being in the street. There was no parade. You can’t just take over Pennsylvania Avenue, you can’t just take over 15th Street… "
At a February 25, 2003 hearing before the Judiciary Committee Councilmember Patterson asked, "And whose decision was it to make the arrests in Pershing Park that day?" This exchange followed:
Chief Ramsey: "Assistant Chief Newsham was assigned to that particular sector that we had, that area that we had. All the assistant chiefs were given areas of responsibility and that happened to be his area."
Councilmember Patterson: "And you were not a part of that decision making yourself?"
Chief Ramsey: "No. When I came up on the scene, actually, that was already practically in progress. I was all over the various locations where we had incidents taking place…But I was there when the arrests were taking place."
Finally, Chief Ramsey was questioned about the arrests and the decision-making by the Committee’s Special Counsel, Professor Mary Cheh, during the December 18, 2003 investigation hearing. The entire exchange is included.
Q: Assistant Chief Newsham describes his conversation with you as informing you and seeking your approval which he then got. Is that correct?
A: Well obviously, I have the authority to be able to override any decision that’s made. Again, he did not have to seek it, but since I was getting the briefing, part of that process would be if I felt something was amiss, I certainly would at that time tell him that’s not the appropriate response for the Department and we wouldn’t move forward. I didn’t hear anything in that respect at all. Ultimately, I’m responsible for everything. And the reason, when you’re talking to a superior officer, the fact that they don’t tell you to not move forward can be meant to mean that it’s appropriate. It’s ok.
Q: Well, it’s nice to acknowledge, you know that generally you’re the head of the department, and responsible for everything, the ‘buck stops here’ and that sort of thing. But I’m talking about the circumstances at that particular time. He told us that he informed you fully. He told us that he sought your approval. He told us that you gave your approval. Are you just saying that you just stood there passively and didn’t countermand it? Did you give approval to make the arrests?
A: Excuse me, Ma’am. I think there’s a need for me to just get one thing clear. I’m not generally in charge of the Department; I am in charge of the Department…
Q: Did you give approval to make the arrests?
A: And I would appreciate it, Ma’am. Excuse me, Professor…
Q: No, excuse me. Did you give the approval to make the arrests?
A: There’s no…You’re being rude Ma’am, and there’s no need for that. I’m just simply responding to something that you said that I thought was a bit out of line. I’ve spent a considerable amount of my life getting to where I am right now and I refuse to let you or anyone else define me as a person or define this Department. That’s why we’re having this discussion. I told him that I thought that arrests were okay. That there was nothing wrong with what he was doing. Based on that at the time, I did not disapprove the arrests. Ultimately, the buck stops with me. He made a decision, I supported that decision and I didn’t have the benefit of some of the information now. But based on what I saw at the time, I supported his decision 100%.
Q: So then, let me phrase it the way I wanted to phrase it. Did you approve of his decision to arrest the persons at Pershing Park?
Chief Ramsey’s final heated testimony on December
18, 2003, that he approved
There has been a persistent effort by MPD leadership to exaggerate the numbers of and threat posed by anti-globalization demonstrators.
Prior to the September 2002 IMF/World Bank demonstrations, Chief Ramsey told the Council and media that MPD expected 20,000 to 30,000 demonstrators that weekend. MPD’s own operational plans indicate that MPD expected no more than 4,000 demonstrators (see "Pershing Park Arrests" section of this report).
After Fire/EMS and MPD shut down the demonstrators’ convergence center in April 2000, Chief Ramsey and then-Executive Assistant Chief Terry Gainer told reporters that demonstrators were making homemade pepper spray and molotov cocktails. During an April 17, 2000 television story by The News with Brian Williams, Chief Ramsey stated "They were making homemade pepper spray." An April 15, 2000 Associated Press story reported "officers seized a plastic container with a rag stuffed inside and what looked like a wick, said executive assistant chief Terry Gainer. He said it ‘looks like a Molotov cocktail." These statements are not corroborated in the Fire/EMS records on materials actually recovered at the convergence center, or by the testimony of MPD and Fire/EMS witnesses (see "Convergence Center" case study section of this report).
Both Chief Ramsey and Assistant Chief Alfred Broadbent, Jr. expressly denied that the Department directed protesters into Pershing Park, yet the record shows that the opposite is the case.
In testimony December 18, 2003, Chief Ramsey several times asserted that the Department had no information on plans for demonstrators to congregate in Pershing Park. "We don’t know why they went to the park," he said, and, "We don’t have any knowledge of where they were going to be."
Chief Broadbent, asked specifically if "the police were in any way funneling them or directing them" to Pershing Park, responded, "No we were not."
These statements contradict the intelligence included in the operational plan for the weekend and information shared by Chief Ramsey with Councilmembers a week before the trade meetings that indicated that MPD knew the exact schedule of the demonstrators that morning. The statements are also contradicted by the Committee’s investigation which found that a significant number of demonstrators were directed into Pershing Park by MPD officers (this finding is discussed in detail in the "Pershing Park Arrests" section of this report), as well as the record of MPD’s own internal report on the Pershing Park arrests, in which officers interviewed described their own actions that morning to direct marchers and bicycle riders into Pershing Park. The version of the investigative report submitted to Chief Ramsey by the Force Investigation Team described police actions using the words "shepherded," "escorted," and "directed," which were changed to "monitoring," "followed," and "allowed" to reflect the absence of direction.
Chief Ramsey testified that following the Office of Professional Responsibility investigation into the Pershing Park arrests, he implemented certain requirements in MPD policy and procedure, but some of those requirements have existed in MPD policy since 1978.
At the Committee’s December 18, 2003 hearing, Chief Ramsey testified that he directed that ten actions be taken "in order to more fully address the deficiencies identified during our internal investigation." The actions listed by Chief Ramsey included "tighter procedures on issuing warnings for crowds to disperse," and "the use of an operations log to document all actions taken during an event."
Yet the May 2003 SOPs on demonstrations issued by Chief Ramsey has language concerning both the issuance of warnings for crowds to disperse and the commander’s event log is identical to the language on both subjects contained in the 1978 demonstrations handbook.
Assistant Chief Brian Jordan testified he did not participate in discussions among command staff members prior to the arrests at Pershing Park, information contradicted by four witnesses, including three MPD officials in their sworn testimony.
Several officials who were present at Pershing Park, including Assistant Chief Peter Newsham, Captain Andrew Solberg, Captain Ralph McLean, and U.S. Park Police Captain Rick Murphy, testified that Assistant Chief Brian Jordan was an active participant in discussions and operational orders given before and after the order to effect the mass arrest
U.S. Park Police Captain Rick Murphy, who was on the scene of the arrests at Pershing Park, was interviewed during the MPD Force Investigation Team (FIT) investigation into the Pershing Park arrests. Captain Murphy told FIT Sgt. James McGuire that he participated in discussions with Assistant Chiefs Newsham and Jordan before and after the decision was made to make a mass arrest at Pershing Park. He stated that after the decision was made, Assistant Chief Jordan asked Captain Murphy to use his horses to push the protesters to the north side of the park, a request that Captain Murphy denied.
During the same FIT investigation, Captain Solberg told FIT Sgts McGuire and McCoy that upon arriving at Pershing Park, he met with Assistant Chiefs Jordan and Newsham and was told to take his CDU platoons and shut down the south and east sides of the park.
Assistant Chief Jordan testified, however, that he had no role in operations or discussions at Pershing Park. He testified that after arriving at Pershing Park from an earlier mass arrest scene at Vermont Avenue and K Street, NW:
I asked Chief Newsham did he need anything. He said no. I stood up there talking with Deputy Superintendent Huberman from Chicago for a while and then after that I got in my car and I left.
Assistant Chief Jordan was asked specifically about the statements of Captain Solberg and USPP Captain Rick Murphy, and he denied participating in those conversations. He testified that "the only conversation I had was, significant conversation was with Deputy Superintendent Huberman."
Chief Ramsey and Assistant Chief Broadbent in Council testimony denied or sought to diminish the seriousness of alleged violations of the rights of political activists.
During his deposition and public hearing testimony, Assistant Chief Broadbent refused to characterize the work of undercover officers assigned to monitor political activists as "infiltration." He testified that officers were merely "attending public meetings" to learn about the plans of demonstrators. Assistant Chief Broadbent’s characterization of the work of undercover officers fails to acknowledge the extent or invasive nature of surveillance of activists. Former undercover officers testified before the Committee that, for months at a time, they assumed false identities as activists and became members of political organizations. In their words, they "infiltrated" organizations and reported to the Intelligence Unit on the daily activities of individuals. These reports were sent up their chain of command, including to Assistant Chief Broadbent.
In a November 14, 2003, deposition in the litigation, International Action Center, et al, v. United States of America, et al, Chief Ramsey repeatedly refused to answer a direct and straightforward question about ensuring that undercover officers do not violate civil rights. With apologies for the repetition, the efforts by the plaintiffs’ lawyer, Mara Verheyden-Hilliard, to secure an answer are included here verbatim:
Q: What safeguards are put in place to make sure that the Constitutional rights of political activists are not violated by the use of intelligence officers infiltrating their organizing meetings and activities?
A: We’re only concerned with any unlawful activities that may be taking place or being planned.
Q: But what safeguards are put into place with regard to the intelligence operations conducted by the MPD that involve assigning officers to infiltrate political meetings or assemblies?
A: Our officers are interested only in any unlawful activities that might be taking place or being planned by an individual or a group of individuals. Anything beyond that, we aren’t concerned about.
Q: I’m going to ask you again, however, what safeguards are put into place by the Metropolitan Police Department to ensure that intelligence operations using Metropolitan Police Department officers to infiltrate political organizing activities do not violate the rights of political activists?
A: Again, we aren’t concerned with the political positions of any group or individual. We are only concerned with unlawful activities that an individual or a group might be engaged in.
Public officials are responsible for their actions including providing information concerning the performance of their duties when questions are raised within a legitimate fact-finding setting, whether that setting is a D.C. Council hearing or a court proceeding. In the deposition quoted above, Chief Ramsey failed to meet even minimal standards for responding to legitimate questions. The end result: the chief of police of the District of Columbia presents himself as someone who dismisses the importance of safeguarding the Constitutional rights of political activists, fails to recognize the legitimacy of the judicial process, and fails to hold himself accountable for providing information in a legitimate setting.
Senior officials in the Department displayed a pattern of evasion in their depositions by claiming not to recall certain events – claims that are implausible on their face.
The same failure to perform the duty of a public official to account for himself and his actions within a legitimate fact-finding setting is evident in the next set examples as well. Some MPD witnesses persistently refused to answer even the most innocuous questions.
Executive Assistant Chief Michael Fitzgerald
Executive Assistant Chief Michael Fitzgerald, second in command in the Department, conducted the interview of Assistant Chief Peter Newsham about the arrests at Pershing Park as part of the FIT investigation. The inappropriateness of EAC Fitzgerald having conducted this interview, since he is outside of the Office of Professional Responsibility and since he was present and approved of the arrests at Pershing Park at the time of that decision, is discussed in the "Pershing Park Investigation" section of this report. The investigating officials provided EAC Fitzgerald with a series of questions to ask Assistant Chief Newsham during the interview. Several of his responses to questions about the decision for him to do the interview, and whether he received questions prepared by the sergeants who conducted the investigation, follow:
Q: Did you have a meeting that included the Chief of Police to discuss the taking of a statement from Assistant Chief Newsham?
A: I don’t remember having a meeting with the Chief of Police, although that may have taken place because the Chief of Police is the only one who can – he had to instruct me to take a statement from Chief Newsham…
I remember – what I remember is not having a meeting about that….
But I don’t know whether the Chief told me to take the statement or I got it from Terry Ryan, and I don’t want to make assumptions that the Chief would tell me because Terry wouldn’t tell me. But I don’t recall the meeting. I’m not saying it didn’t take place….
Q: Now, did anyone prepare for you a set of questions to use during that interview?
A: I don’t remember getting any questions for the interviews. I’m not saying I didn’t get questions, I just don’t remember these questions.
Commander William Ponton
Commander William Ponton is Chief Ramsey’s chief of staff, essentially controlling the paper flow into and out of the chief’s office. He was asked about the meeting called by Chief Ramsey and attended by several senior officials at which Captain Klein of the FIT was directed to make changes and additions to the investigative report about Pershing Park. Exchanges with Commander Ponton follow:
Q: At that meeting you say you discussed Captain Klein’s report. Could you recall the substance of those conversations?
A: No, ma’am.
Q: Do you know whether the report was gone over in detail or was it just gone over in general?
A: I don’t recall the discussions at this point.
Q: Do you know how long the meeting lasted?
A: No. I don’t recall that either.
Q: Did you recall yourself participating at all or were you just sitting there sort of observing?
A: I sat in the meeting. I don’t recall having anything to say in the meeting. I did sit in the meeting. I simply don’t recall what was discussed.
Q: So this is a meeting that was in January of this year on this report and you have no recollection of any matter that was discussed?
A: I don’t recall the specific discussions.
Q: Well, could you recall the general discussions?
A: The report was discussed.
Sergeant Michael Thornton
Sgt. Michael Thornton also works in the chief’s office as an administrative sergeant handling correspondence. He occasionally accompanies the chief of police as his driver, and, during recent demonstrations, as a provider of personal security for Chief Ramsey. He accompanied Chief Ramsey on September 27, 2002, including stops at two sites of mass arrests, at Vermont Avenue and K Street, and at Pershing Park. Questions and his responses to counsel questions about Pershing Park follow:
Q: Did you go from that location [Vermont Avenue and K Street] to Pershing Park?
A: I went to Pershing Park. The sequence of events I don’t remember…
Q: Would you have walked from Vermont and K to Pershing Park?
A: Could be.
Q: Did you go back into the car?
A: From Vermont and K? I don’t remember. I mean at some point I would have had to go, but I don’t remember from that location or where we went next…
Q: At some point you left Pershing Park, did you not?
Q: How did you leave Pershing Park?
A: I don’t remember.
Q: When you got to Pershing Park you said one of your assignments was to keep an eye on the crowd, right?
Q: And you would do it to the best of your ability, correct?
A: I would, yes, ma’am.
Q: And you would be alert, right?
Q: And attentive, correct?
Q: Okay. So now you’re at Pershing Park and tell us having been alert and attentive, what do you see?...
A: Demonstrators standing around, police officers standing around, and a lot of horses. I was in back of the horses… I wasn’t right beside the Chief there. So, you know, I felt like it was a safe situation, that I didn’t feel like that he was, his personal safety was in, I didn’t feel his personal safety was in danger at the location...
Q: Was it an unruly crowd?
A: Was it – what do you mean unruly? What do you mean?
Q: Were there skirmishes? Were people pushing and shoving? Was it loud? Did it seem out of control? What was your assessment? You’re a police officer, I assume you can make assessments about the nature of circumstances you find yourself in, so I’m asking you to describe them for us.
A: I was behind the line of horses and I did not feel that there was a threat to the Chief of Police…
Q: Did you see him confer with others?
A: He was standing in close proximity to other police officers but I don’t know who they were. I mean, they could have been line officers, they could have been park police. I mean, I don’t know. I don’t remember who they were. I don’t recall any specific person that he spoke to at that location.
Sgt. Thornton also was asked about the arrests. Despite the fact that approximately 400 people were arrested while he stood at the corner of 14th Street and Pennsylvania Avenue, Sgt. Thornton testified that he could not remember any specific details about those events. His responses:
Q: When you arrived there – were arrests being effected yet?
A: I don’t recall any arrests, being on the scene for arrests…
Q: You don’t recall any arrests at Pershing Park on Friday September 27th?
A: You know, I’ve learned through the media reports that, yeah, there was numerous arrests, but I don’t recall seeing anyone being arrested…
Q: We’ve see news footage of you and Chief Ramsey removing the bicycle of an arrested demonstrator from Pershing Park. Do you remember that?
A: Me removing a bicycle from Pershing Park? No. But, okay.
Q: You were removing it from someone who had been arrested and I ask to see if that would jog your memory to see if you remembered people being arrested at Pershing Park.
A: [no answer]
In closing, it should be noted that the Committee did receive testimony from several MPD officers and officials who took the Department’s guidelines on false statements and the role of the Council’s investigation very seriously. These witnesses provided truthful and careful testimony, some perhaps at risk to themselves and their careers and despite a climate of fear within the department that does not encourage such cooperation. To those witnesses, the Committee extends its admiration and gratitude.
From the late 1970s until 2000 the Metropolitan Police Department enjoyed a reputation for professionalism in handling the hundreds of demonstrations that took place in the nation’s capital. In their testimony December 17, 2003, former Deputy Chief of Police AND Commander, Special Operations and Traffic Division, Robert Klotz and former ACLU legal counsel Ralph Temple recounted the history of difficult, challenging events monitored and managed by MPD without major controversy during that period: the "tractorcade" of farmers camped on the Mall for close to a month in 1978; marches by Iranian students in the 1980s in the midst of strong anti-Iranian sentiment in this country; the Million Man March in 1995 that was a major public concern based on the sheer number of participants. These large-scale events were opportunities for the department to present itself as a best-in-class agency, well-trained and well-lead. A major conclusion by the Committee, underscored by the two witnesses, is that the Metropolitan Police Department today is not what it was in the immediate past, with potential repercussions for the future. Temple’s testimony on this point:
If you go back to May Day, 1971, they had a real difficult thing to deal with. A hundred thousand demonstrators, threatening to close down -- that’s darn tough; it can be done; but it is tough. This current police management hasn’t had a tough one to deal with. April 2000 there were 15,000 demonstrators; September 2002, only two or 3,000 demonstrators. It would have been such an easy demonstration to do it right…But they couldn’t restrict themselves to arresting only violators of the law.
If the MPD was faced tomorrow with managing a controversial political protest event that drew close to 100,000 persons – as was the case on May Day, 1971 – there is nothing in the record of the last four years to indicate the department could respond successfully. This is a serious concern for District residents and a serious concern for all who wish to exercise their First Amendment rights in the nation’s capital. A discussion of the specific issues in managing demonstrations follows.
Command and Control
Prior to the IMF/World Bank meetings in April 2000, MPD rarely mobilized the full department to prepare for demonstrations. Since mass demonstrations requiring full mobilization have become more regular in recent years, Chief Ramsey has implemented changes in the command and control structure to accommodate full mobilization. The overall effect of these changes has been the dilution of civil disturbance unit (CDU) expertise and a weakening of effective incident command and management.
According to deposition and public hearing testimony, over the last twenty years, it was typical to have the Special Operations Division (SOD) Commander act as the field commander during mass demonstrations. The SOD Commander typically had extensive career CDU experience and fulfilled the role of incident commander during demonstrations, making final decisions about the deployment of manpower and the initiation of mass arrests. The SOD Commander also typically relied on assistance from captains and lieutenants with similar career CDU experience.
More frequent full mobilization of the Department since 2000 has lead MPD to rely on the entire command staff during demonstrations, and Chief Ramsey has designed a command and control structure in which the demonstration area is divided into quadrants, with each quadrant and its civil disturbance officers and officials being commanded by an assistant chief. This has resulted in incident commanders being designated as a result of their rank, rather than the extent of their CDU experience.
The original version of the report of MPD’s Force Investigation Team investigation into the Pershing Park arrests contained a finding, noting that:
Currently, most commanders and assistant chiefs are placed in charge of quadrants in which mass arrests are likely to take place. Numerous command officials do not possess the experience in handling complex civil disturbance events. Moreover, the majority of officers graduating from the Institute for Police Science undergo a weeklong training curriculum in civil disturbance. In some cases, this leads to an undesirable, even detrimental situation in which many officers and supervisors possess more knowledge and training than the official in command.
This recommendation was removed from the report prior to its transmittal to the Mayor and Council. Nonetheless, the Committee reached the same conclusion. Asked about this phenomenon of relatively unseasoned command staff members making important tactical decisions in the absence of extensive CDU training, Assistant Chief Alfred Broadbent indicated that the CDU captains and lieutenants have a responsibility to speak up and advise assistant chiefs on field decisions on the basis of their own CDU training and experience during mass demonstrations. This assertion during his deposition belies the environment that exists within the department such that challenges to a superior officer are not merely ignored but could be punished, formally or informally. For inexperienced command officials to routinely rely on more experienced subordinates requires agency management that is more open and self-critical than is the case with MPD today.
The change in command structure instituted under Chief Ramsey has also, according to after action reports dating back to April 2001, resulted in general command and control confusion, and what has been labeled by many witnesses as akin to the "too many cooks in the kitchen" syndrome. Also, as one commander put it, the command structure has become so tall, that the upward flow of information from officers to command officials gets distorted. Contributing to this problem is the expansion of MPD’s Joint Operations Command Center, where an incident commander, typically the Assistant Chief of Special Services, manages support resources and the movement of CDUs. An after action report submitted by Commander Willie Dandridge after the September 2002 Pershing Park arrests is typical of other comments on this issue from after action reports and testimony. Commander Dandridge noted:
Command and control are essential during details, especially during a tactical response. I was unsure of who was actually in charge. Deployments and assignments were generated from the JOCC yet would be countermanded by the A/C in charge of a specific area, reiterated by the command bus, and countered by the A/C in charge. Though a definitive answer as to whose decision would stand may have been predetermined, the contradictions lead to doubt as to how to react.
Crowd Management/Arrest Procedures
As described in more detail in the "Demonstrations in the District of Columbia" section of this report, in 1978, following the May Day litigation, MPD issued guidelines on mass demonstrations. In addition to these guidelines, MPD uses an operational plan for each mass demonstration that outlines policy and detailed operations for specific events.
The Committee reviewed several versions of MPD’s guidelines in place during the last 25 years, as well as various operational plans, and examined their implementation through the case studies described earlier in this report. The Committee drew three major conclusions from this review. First, the tone of MPD’s policy has shifted in recent years towards the assumption that demonstrators are likely to break the law or cause civil disturbances, and in some instances has moved away from court recommendations in the 1970s. Second, the primary elements of MPD’s articulated policy for handling demonstrations, which emphasize the protection of First Amendment rights, the use of arrests as a last resort, and de-escalation with respect to crowd management, are generally sound. Third, MPD has strayed from its articulated policy in recent years during mass demonstrations where there is a potential for civil disobedience.
During his public hearing testimony, Robert Klotz, who served as deputy chief of police of the Special Operations and Traffic Division following the May Day era litigation, expressed concern about a tendency of police departments in recent years to blur the line between protecting demonstrators’ rights to demonstrate and managing civil disturbances. "A parade and a demonstration is not a civil disturbance," he said during the December hearing, "and a civil disturbance is not a parade or a demonstration." He indicated that the effect of this blurring has been to encourage overreaction by police and an escalation of tension. He said using a show of force, such as a large number of officers or a police line, is a legitimate tactic in a civil disturbance. "But a show of force in a demonstration is ill-advised," Klotz said. "If you use a show of force in a relatively peaceful demonstration you are actually setting a tone that I don’t think the police should be setting."
This concern was reiterated by Timothy Lynch, Director of the Cato Institute’s Project on Criminal Justice, who testified that American police departments over the twenty years have become more "militarized" and the rights of individuals have suffered as a consequence. The military mission, he said, is to maximize use of force, while the police mission is, or should be, to use the least amount of force.
The shift referenced by Mr. Klotz and Mr. Lynch is evident in the evolution of MPD’s mass demonstration policy between 1978 and the present, and can be demonstrated by comparing the 1978 handbook and the current SOP. This is most obviously reflected in the change of the names of the documents. The 1978 manual is called the MPD Handbook for the Management of Mass Demonstrations. The 2003 SOP issued by Chief Ramsey is called the MPD Standard Operating Procedures for Mass Demonstrations, Response to Civil Disturbances & Prisoner Processing.
The introduction to the guidelines, their articulated purpose, and their statements of policy reflect this same shift. For example, the following is the statement of policy in the 1978 handbook:
It is the statutory responsibility of the MPD to preserve the public peace, to prevent crime and arrest offenders, and to protect the rights of persons and of property. It is the policy of the Metropolitan Police Department during mass demonstrations to preserve the peace while protecting the rights of demonstrators to assemble peacefully and exercise free speech. In fulfilling its responsibilities during mass demonstrations in which demonstrators engage in unlawful conduct, the MPD will make reasonable efforts to employ non-arrest methods of crowd management as the primary means of restoring order. Should such methods prove unsuccessful, arrests shall be made for violations of the law. All arrests shall be based on probable cause, and arresting officers shall use only the minimum necessary force to make and maintain arrests. To the extent possible under the circumstances, arrests shall be made in an organized manner by units at the direction of an official, and shall be fully documented. Prisoners shall be safeguarded and adequately cared for, and shall be expeditiously processed for court or released.
The statement of policy of the 2003 SOP is almost identical to the statement above, yet has subtle and significant changes, which are noted inside the text below. Note the deletion of the qualifier included in the 1978 document that crowd management is necessary when there is unlawful conduct within a mass demonstration, changed to an inherent assumption that, during mass demonstrations, MPD will have to manage the crowd and restore order:
It is the statutory responsibility of the MPD to preserve the public peace, to prevent crime,
andarrest offenders, and to protect the rights of persons and of property. It is the policy of the Metropolitan Police Department duringAs part of this responsibility, the department provides trained personnel to respond to the scene of mass demonstrations and civil disturbances in our city in order to preserve the peace while protecting the First Amendment right sof people demonstratorsto assemble peacefully and exercise free speech. In fulfilling itsthese responsibilities, during mass demonstrations in which demonstrators engage in unlawful conduct,the MPD will make reasonable efforts to employ non-arrest methods of crowd management as the primary means of restoring order. Should such methods prove unsuccessful, arrests shall be made for violations of the law. All arrests shall be based on probable cause, and arresting officers shall use only the minimum necessary force to make and maintain the arrest s. To the extent possible under the circumstances, arrests shall be made in an organized manner by units at the direction of an official the Chief of police or his/her designee, and shall be fully documented. Prisoners shall be safeguarded and adequately cared for, and shall be expeditiously processed for court or release d.
It appears that these specific changes occurred some time between 1978 and 1996, as they are also reflected in the 1996 edition of the handbook, the MPD Manual for Mass Demonstrations and Responding to Civil Disturbances.
The Committee also found instances of new language inserted into the 2003 manual that appears to stray from the intent of May Day era court rulings. For example, there is new language in the 2003 SOP regarding the documentation of information surrounding mass arrests. One of the courts’ most significant criticisms of MPD during the May Day litigation concerned MPD’s suspension of the use of its field arrest forms during mass arrests in 1971. The 2003 SOP makes repeated references to the importance of this issue of documentation. But it also includes new language that allows this process to be suspended:
Documentation. During mass demonstrations and civil disturbances, every reasonable effort shall be made to document every arrest to the extent allowable under the circumstances and consistent with the department’s responsibility to protect life and property and to prevent unlawful conduct.
The 2003 manual also includes language, dating back to 1978, requiring unit commanders to keep "commander’s event logs." This reflects another policy regarding documentation that has been ignored in practice in recent years. These logs are required to record occasions requiring "the use of force; tactical orders issued to personnel; orders received from higher authority; significant acts on the part of the demonstrators; incidents involving mass arrests; and complaints alleging serious police misconduct." The only commander who maintained an event log during the September 2002 demonstrations was Assistant Chief Brian Jordan. In response to a written deposition issued by the Committee that asked whether commander’s event logs were used during mass anti-globalization demonstrations in recent years, Chief Ramsey stated:
The Mass Demonstration Event Logs were not used for the listed events. Commander’s Mass Demonstration Event logs have taken the form of the running resumés produced by the department’s Joint Operations Command Center.
The running resumé produced in the Joint Operations Command Center does not provide an eye-witness account of the circumstances surrounding a mass arrest, a form of record-keeping that is required of commanders and arresting officers in order to establish probable cause and to defend arrests in court.
Aside from the overall shift in tone and questionable additions to the 2003 SOPs, several aspects of MPD’s articulated policy for handling mass demonstrations are sound. As the statement of policy quoted above states, non-arrest methods of crowd management are preferred. This policy was re-iterated by the deposition and public hearing testimony of several MPD witnesses.
MPD’s use of force policy, consistent with the 1978 policy, states that "in managing a crowd, the policy of this department is to use the least stringent force necessary…The application of force by a unit or element of it shall be immediately discontinued upon a determination by the ranking official on the scene that the condition, which required the use of force, has been alleviated." The 2003 SOP requires that all instances of use of force be documented.
The 2003 manual also includes language dating back to 1978 that requires the collection of information necessary for advanced planning for demonstrations, and encourages negotiations and communication with demonstration organizers as far in advance of demonstrations as possible. It emphasizes using only the level of manpower that is necessary for the threat level associated with the demonstration, and encourages officers to remain neutral and not engage in "demonstration-related discussion with participants" or to respond to verbal harassment from demonstrators. It warns that officers who "attempt to avoid identification through removal of the badge or name plate will be considered a violation of department orders and will be dealt with accordingly."
Finally, the 2003 SOP includes language identical to language in the 1978 handbook that allows use of a police line:
Whenever it becomes necessary to isolate an area in which large scale unlawful activity is occurring or has the potential of occurring … A police line may be established at the direction of a unit commander to prevent damage to a specific target, such as a building, a utility or a business area…Police lines shall not be used to impede the movement of a crowd when there is no potential for unlawful activity.
The manual only allows for crowd dispersal:
When the intensity level of a crowd rises and unlawful disruption, either through violent or passive means, is occurring to the extent that the field commander determines there is a need to make a positive police response, he/she will instruct the affected unit commanders, where time and circumstances permit, to issue warnings to the crowd to disperse.
As described earlier this report, MPD policy requires a series of clearly audible warnings before officers can make arrests.
While MPD may have articulated sound policies in important areas, including in the area of crowd management, the department has violated its own policies on several occasions in recent years, usually during mass demonstrations with a potential for civil disobedience. For example, as already discussed in the "Pershing Park Arrests" section of this report, MPD did not give warnings before conducting mass arrests of nearly 600 demonstrators in 2002.
Also, according to the testimony of public witnesses and some MPD witnesses, MPD increasingly has used police lines to surround and detain demonstrators over the last four years as a means of crowd control, rather than as a means of controlling the potential for violence, or as a means of conducting a mass arrest. This tactic of "trap and detain," has at times kept demonstrators detained for considerable lengths of time, against their will. It should never be used on nonviolent demonstrators or in the absence of the potential for unlawful activity. To do so is a violation of current MPD policy and is arguably tantamount to, at best, disruption of individuals’ First Amendment rights to demonstrate and, at worst, false arrest.
Command Staff Attitude
Another element in the movement by the department away from best practices has to do with attitudes adopted or learned toward demonstrators themselves. Senior leaders, notably Assistant Chief Alfred Broadbent and Assistant Chief Peter Newsham, made startling comments in their deposition testimony when describing the political activists who lead and participate in demonstrations. Assistant Chief Newsham described the briefings prior to the September 2002 demonstrations: "There was a lot of talk and a lot of information that was shared with us regarding the anarchists. They’re out on the West Coast and they were largely responsible for the problems that they had in Seattle."
Assistant Chief Broadbent essentially said in his deposition that he could tell by looking at a demonstrator that he or she will commit a criminal act. He testified:
A: This is where we talk about the face of demonstrations changing. Because if you want to come to protest in Washington, why are you bringing the gas mask. Why are you bringing the bandana to cover your face. Why are you wearing garments to conceal your identity. If you’re doing those type of things, you’re not coming to protest, you’re coming to engage in some type of civil disobedience.
Q: You’re saying that those attributes target that person as a person who is likely to commit a criminal act?
A: There’s a reason why they’re hiding their identity. And it’s not because it’s hot or cold. Someone who wears a bandana over their face and covers everything but their eyes is doing that for a reason.
There are two points here. Demonstrators have had cause in the past to fear police use of pepper spray and will explain that they are advised, and advise others, to wear or carry scarves and other apparel to cover the face if necessary to avoid inhaling chemicals. Second and more significant: basing a police decision to arrest or detain merely on the appearance of one or more individuals represents a form of profiling and runs counter to departmental policy as well as case law.
In his deposition and public testimony, Assistant Chief Newsham said he believed the crowd at Pershing Park was dangerous. Other contemporaneous descriptions indicated otherwise. A television reporter, in a live report as the bicyclists arrived at Freedom Plaza and officers surrounded Pershing Park, said, "They’ve surrounded this group here…We have a lot more police officers than demonstrators…No violence, no incidents here other than chanting and placard carrying here at Pennsylvania as reinforcements come in to help police officers surround and contain this group."
The department’s own videotape of the scene at the park showed a number of persons to be colorfully dressed, but gave no indication of any menace present in the crowd, either through the presence of any kind of weapons or angry expressions on those in the crowd. To the contrary, the MPD tape repeatedly shows participants anxiously asking to be released from the park. During his deposition, Assistant Chief Newsham was asked to explain his belief that there was danger present in Pershing Park.
Q. Let’s just take 2002, the people that were arrested, they were not exhibiting the behaviors as far as you know that you saw on those films in Prague or Seattle.
A. Right. I think they were very close to exhibiting those behaviors. I really do. The crowd that I dealt with that Friday seemed a lot more aggressive. They seemed a lot more reluctant to obey police direction. They had actually engaged in some destructive behavior. They had broken a window that I knew of. They had been turning over newspaper things and trash cans. I had never seen that in any of the other ones, not me personally. I had not…..
Q. Were they peaceful?
A. Not particularly aggressive.
Q. Did you notice any violence?
A few minutes later in the deposition Chief Newsham asked to go back to recount other thoughts he had during the Pershing Park arrests:
I pictured in my mind because of the things I had seen, the things that I had heard, that we would have a situation very similar to the things that I saw in Seattle because if you watch the films from Seattle, that’s what you see. You see small splinter groups of people coming through the street very aggressively and doing types of things like knocking over and what happened [in Seattle] was I think the police didn’t react to that at all and it built up and a mob mentality developed and the next thing you know we had all kinds of destruction of property. And I felt that the same things were going to happen in the District so I thought I had probable cause to make the arrests….and I still think that if they had been allowed to leave the park that we would have had a lot of problems in the city.
Assistant Chief Newsham’s own perception of danger inherent in the scene at Pershing Park indicates a lack of knowledge and expertise in crowd management – a lack of the level of expertise former SOD Commander Robert Klotz brought to the job, for example.
Other images of MPD officers captured on videotape of demonstrations in September 2002 and April 2003 show officers visibly nervous – repeatedly rapping a palm with a baton, for example, or shifting from one foot to another while manning a police line. That image contrasts with the description former SOD Commander Klotz provided of MPD officers holding up even when hit with eggs and other missiles aimed by onlookers at Iranian students engaged in protest marches in the 1980s. To be sure, the videotape images do not represent the vast majority within the Department who take their CDU training seriously and perform professionally. But the possibility that unseasoned officers are made anxious by command staff rhetoric is worrisome. "If you don’t have competent officials, and competent, well-trained officers, your plans are relatively worthless," Klotz testified.
Under current leadership, the Metropolitan Police Department has failed to effectively manage controversial political demonstrations, giving rise to concern about its ability to manage these events in the future.
Consistent with the original office of Professional Responsibility Pershing Park report as submitted to Chief Ramsey, all police executives need to be CDU trained or re-trained. It is important that those charged with incident command during demonstrations be those most experienced in crowd management.
MPD should streamline its communication structure during mass demonstrations so that one Incident Commander is consistently making field command decisions.
Prisoner Processing & Use of Restraints
Ideally, MPD would not conduct mass arrests on a regular basis. But in the event large numbers of arrests are necessary, MPD should have the capacity to process prisoners in a reasonable amount of time. According to after action reports dating back to April 2000, technological problems have consistently plagued MPD’s mass arrest prisoner processing, resulting in unreasonable lengths of detention for those arrested during demonstrations.
Most recently, a breakdown in the Criminal Justice Information System (CJIS) caused delays in the release of those arrested on September 27, 2002, and some prisoners who chose citation release as a release option were detained for up to 36 hours. The Committee reviewed the after-action reports of MPD’s IT staff following the September 2002 protests. There was no consensus on the exact cause of the problem, but based on the after-action reports, it seems to have been narrowed down to a routine test of the CJIS system conducted that night, a damaged wireless antenna, or an overload caused by the media feed in the Joint Operations Command Center. Obviously, routine technology tests should not be conducted at a time when there is the potential for mass arrests. In any event, the exact cause of the problems needs to be diagnosed and addressed so unreasonable delays are not repeated in the future.
Beyond technology problems, individuals arrested for misdemeanor offenses, the vast majority of whom will opt to post and forfeit or choose citation release, should never be detained for more than a few hours.
The Committee received testimony from multiple public witnesses and numerous other complaints alleging that MPD offered either an incomplete range of release options or inconsistent fines for those arrestees opting to post and forfeit. During the processing of prisoners in September 2002, according to testimony, arrestees were either presented with no choice but to post and forfeit, or urged by MPD officers to choose the post and forfeit option as a matter of convenience. Arrestees were also apparently told to pay inconsistent fine amounts.
MPD’s revised mass demonstrations SOP released in May 2003 has detailed instructions on prisoner processing, including instructions tailored to each release option. In the future, this policy should be closely followed. In addition, clear, written guidance should be given to both MPD officers and civilian staff running the prisoner processing sites, as well as to those arrested. This guidance also should be clearly posted in prisoner processing sites where prisoners can see the information.
MPD’s mass demonstrations SOP also has detailed instructions regarding prisoner property, presumably based on District of Columbia law and regulation. It requires a system in which a prisoner’s property essentially follows the prisoner and is tracked through the use of field arrest forms. Unfortunately, this policy was not followed in September 2002 and many pieces of prisoners’ property at the end of the detail were either missing or destroyed. Again, in the future, MPD policy and District law in this area should be closely followed.
In November 2003, the Citizen Complaint Review Board released a "Report and Recommendations regarding Disorderly Conduct Arrests Made by Metropolitan Police Department Officers." Among the reports findings was that the post and forfeit process, through which an arrestee pays a fine and forfeits his or her opportunity to appear in court to answer the charge, "is not specifically authorized by statute, regulation, or court rule," and that:
The consequences of collateral forfeiture are not clear…the Department does not appear to have [a general order] that sets out the procedures for processing a collateral forfeiture. Other than a receipt for payment of the collateral, the station staff does not complete any paperwork, require any acknowledgement by the arrestee of the choice to post and forfeit collateral, or give the arrestee any paperwork that explains the collateral forfeiture process or any related information.
Implementation of CCRB’s recommendation that MPD clarify its post and forfeit process would provide more explanatory information to arrestees about their rights, and greater accountability for MPD in terms of tracking the large amount of cash that is collected as a result of post and forfeiture during mass demonstration situations.
In September 2002, arrestees were held in the prisoner processing center with their strong wrist tied to the opposite ankle in such a way that they were not able to stand up or stretch out. The length of time individuals were retained exacerbated the discomfort of arrestees. Retired Lieutenant Colonel Joseph Mayer, who was 69 years old at the time of his arrest, was held in this manner from approximately 3 a.m. Friday night until 1 p.m. Saturday.
MPD’s investigation into the Pershing Park arrests found that this method of handcuffing prisoners was justified because officials at the prisoner processing center needed a way to maintain control over hundreds of demonstrators whom they believe had the potential to start to protest or become unruly. MPD further found that the handcuffing technique was not a violation of general order 502.1 (Transportation of Prisoners), because arrestees’ arms and legs were not tied together in such a way that they could not sit up or move. General order 502.1 states, in part:
Members shall not attach handcuffs to leg restraints in such a fashion that forces the legs and hands to be close to one another (i.e. hog-tying), or place a person in a prone position, lying face down.
The Committee, nonetheless, finds this method of restraint to be insupportable and particularly so in circumstances when nonviolent, misdemeanant arrestees are held for unreasonable lengths of time. Former Interim Corporation Counsel Arabella Teal defended the use of restraints on prisoners binding wrist to ankle following the September 27, 2002, arrests based on the large number of persons arrested and the shortage of officers to stand guard at the detention center to assure their safety. While a justification from the police department’s perspective, use of uncomfortable restraints against nonviolent demonstrators is not a substitute for effective law enforcement planning and sufficient manpower to provide reasonable supervision of arrestees.
MPD should evaluate its technological capacity for handling a large volume of prisoners, include information technology staff in planning prior to events with a potential for mass arrests, and periodically conduct exercises to test this capacity.
MPD should release people charged with offenses for which citation and immediate release are appropriate within a reasonable period of time. If prisoners are held beyond four hours, MPD should document the reasons for the delay.
MPD should provide arrestees with written descriptions of release options that include a complete range of options provided by District of Columbia law and regulation, arrestees’ rights under the law, and accurate information about fine amounts.
MPD should follow its policy and District of Columbia law regarding the collection, maintenance and distribution of prisoner property.
The Committee endorses the Citizen Complaint Review Board’s recommendation that MPD modify its arrest procedure to ensure that all citizens who pay to resolve their arrest through post and forfeit are provided with written notice about the collateral forfeiture process and its consequences and that they sign an acknowledgment of their choice to pay the collateral.
MPD use of physical restraints against individuals arrested during mass demonstrations should be limited to what is reasonably necessary to secure and control them.
Role of the Office of Corporation Counsel
Given the litigation against the city that has followed mass demonstrations in recent years, it is critical that an attorney familiar with MPD mass arrest protocols and related legal and constitutional thresholds be on the ground with MPD commanders during demonstrations. When practical, attorneys should participate in decisions about mass arrests. According to Robert Klotz, it was MPD practice during the late 1970s and early 1980s to have attorneys present during mass demonstrations. MPD’s 2003 mass demonstration SOP states that the MPD General Counsel "shall provide field assistance to the Chief of Police and other field commanders, and perform liaison functions with the courts, the Office of the U.S. Attorney, the Office of the Corporation Counsel, bar associations, and other legal organizations as applicable."
The Committee received public hearing testimony on this point from D.C. Corporation Counsel Robert Spagnoletti. Mr. Spagnoletti testified that, in the future:
Recommendation: The MPD General Counsel and an attorney from the Office of Corporation Counsel should be on the scene of mass demonstrations that have the potential for mass arrests.
During mass demonstrations in recent years, a number of journalists, including journalists with MPD press credentials, have been swept up and arrested during mass arrests. According to a September 30, 2002 Reporters Committee for Freedom of the Press article, 17 journalists were arrested during the September 2002 mass arrests. The article noted:
Two washingtonpost.com reporters and a United Press International intern were arrested, detained and released without charges in a matter of hours. Student journalists and independent media were detained anywhere from 10 to 27 hours, slapped with a $50 ‘post and forfeit’ fee for early release and returned to their respective newsrooms with a criminal charge of failing to obey the police.
In the same article, washingtonpost.com reporter Michael Bruno commented "The more well known your press outlet, the more secure you’ll be…I feel sorry for reporters who don’t have that benefit and who are essentially doing the same job." The inference of the article is that mainstream reporters may have been released through MPD’s detention log process, through which any official evidence of their arrest is eliminated by MPD on the same day as the arrest.
During the course of its investigation, the Committee received complaints alleging such disparate treatment between mainstream media and independent media. The Committee deposed Sergeant Joe Gentile, MPD’s Public Information Officer, to get information on MPD’s media credentialing policy. Sgt. Gentile explained that journalists can apply for and receive MPD media credentials as long as they can prove that they are from a "bonafide" press outlet. MPD verifies this by contacting the supervisors of the applicants. Sgt. Gentile testified that MPD has often granted media credentials to student and independent journalists. He also testified that MPD typically does recognize press passes from other police departments and jurisdictions, and that the policy during demonstrations is to treat all bonafide passes the same way.
According to Sgt. Gentile’s testimony, a bonafide press pass allows journalists to cross a police line when the commanding official on the scene says it is safe to do so. When asked about specific instances of journalists being arrested during demonstrations in recent years, Sgt. Gentile testified that he could only assume that those journalists had broken the law. When asked why some journalists in September 2002 were released through the detention log while others were not, Sgt. Gentile said he could not explain how that happened.
Although MPD’s policy may be to treat equally all members of the media with bonafide media credentials, this policy has not been implemented equitably in recent years. For example, the names of Michael Bruno and the UPI intern referenced above are not included in arrest records from September 27, 2002, while the names of some student and Independent Media Center journalists are. Two groups of student journalists filed civil suits against the District based on their arrests that day.
One of the reporters arrested that day at Vermont Avenue and K Street was Larry Towell, an internationally renowned Magnum photographer. According to Mr. Towell, despite having three cameras around his neck and press credentials from Magnum, the New York City Police Department, and the Israeli government, and despite repeatedly telling police officers that he was a journalist, he was arrested and detained for six hours.
Finally, the Committee has received troubling testimony that suggests MPD officers may be making judgments on the ground about who among journalists are "legitimate." For example, the following is an excerpt from the deposition testimony of Sgt. Keith DeVille, who supervises MPD’s civil disturbance training unit:
Q: There are a lot of people that are not members of the legitimate press. It’s called the Independent Media Center, they’ll give anybody a paper thing that says ‘I’m a photographer, I’m a reporter.’ When in fact that they’re a protester. They protest, they yell at the police, they do everything else, and then when it comes time to be arrested they say no, I’m the media.
A: Well how do you know who is and who isn’t?…
Q: They carry media credentials. And not issued by the Independent Media Center, not issued by the University of Maryland frat house or something that they’re reporting for. We recognize legitimate media personnel that are their doing their job and not participating in the demonstration…
A: Let’s say I claim I’m a member of the media, OK, and I have a police press pass. Would that do it for me?
Q: You would not…you should be allowed to leave, if you choose to leave.
Contrary to Sgt. DeVille’s statement, MPD does issue media credentials to journalists from the Independent Media Center and from universities. According to MPD’s media policy as articulated by Sgt. Gentile, the judgment that should be made on the ground during demonstrations should be based on two clear factors: 1) whether the journalist has bonafide credentials, in which case those credentials are given deference and 2) whether the individual has broken the law, in which case police action can be taken irrespective of credentials.
The policy as articulated by Sgt. Gentile is not in MPD’s SOP on handling mass demonstrations. In fact, the only relevant policy in the SOP is a section that describes the Office of Public Information’s responsibilities during a mass demonstration. The same section has new language added to the SOP in May 2003 requiring MPD members to report "media misconduct" to the Office of Public Information, but it does define what constitutes such misconduct.
MPD should issue a clear, written policy on the treatment of media during mass demonstrations and this policy should be incorporated into the SOPs and training curriculum on mass demonstrations.
Consistent with MPD policy, police officers should honor press credentials and not make ad hoc judgments as to press legitimacy. As is the case with other persons, credentialed reporters should not be arrested unless they are specifically observed breaking the law.
As noted earlier in this report, the May Day litigation ended based on the belief by the U.S. Court of Appeals that new leadership of the Metropolitan Police Department would address the serious issues raised by litigants and sustained in the U.S. District Court ruling. Judge Levanthal noted that the department "has been advancing its low-key approach" and that there were "reasonable expectations" that the department would address the issues raised, particularly concerning mass arrests. And for at least a period of time the Court’s decision not to rehear the case was justified. That justification ended with the events and police actions of April 2000 and in actions taken by the MPD during major demonstrations over the last several years.
The Committee recommends legislation containing guidelines for Metropolitan Police Department practice in two areas: conducting surveillance and infiltration of political organizations and handling problematic mass demonstrations (using the ACLU definition of problematic, i.e. where civil disobedience is expected). It is the intent of the Committee to introduce legislation this spring to reflect these recommendations. The legislation will likely take the form of regulations that, once in place, can be amended by the Executive branch with approval of the Council.
Guidelines on Intelligence
As the Gilmore Commission noted in its final report in December 2003, definitions are changing for what constitutes legitimate law enforcement activity, including what purpose may be served by surveillance of political organizations. In the aftermath of the terrorist attacks of September 11, 2001, there is a strong and legitimate public interest in careful scrutiny of any and all intelligence that might prevent terror, whether that terror takes the form of violent attack based on ideology or gang-related violence that occurs in the streets of American cities. The elected legislature has a responsibility to draw the line between what is legitimate law enforcement purpose and what violates the civil rights and civil liberties of District residents.
Legitimate law enforcement purpose includes acting to prevent crime and pursuing information that can assist in preventing crime. It is the latter that gives rise to intelligence directed at individuals and organizations based on what, in other contexts, is protected First Amendment activity. The Committee has reviewed policies recently adopted in Chicago, New York City, and the State of California governing intelligence operations. These documents offer useful models and the Committee has included some aspects of these law enforcement policies in recommendations that follow. For these purposes surveillance is defined as the systematic, on-going undercover monitoring of a group's activities and includes police attendance at public meetings or social activities.
The Metropolitan Police Department should conduct intelligence operations solely for a legitimate law enforcement purpose.
Before police undertake surveillance of any group engaging in constitutionally protected expression or freedom of association, there should be reasonable suspicion to believe that the group is engaging in, planning to engage in, or about to engage in criminal activity.
MPD should be prohibited from using undercover officers to conduct surveillance of individuals or organizations based solely on the content of their political speech or ideology.
Surveillance in this context should be expressly approved by the Assistant Chief for Special Services, be time-limited in duration, and be conducted in a manner that is not more extensive or intrusive than is justified by its purpose.
MPD should be required to have an internal oversight mechanism once an undercover operation is underway that, on a regular basis, reviews the activity of and information gained by undercover officers and determines whether undercover surveillance is still warranted.
Officers engaged in surveillance should report regularly to the Assistant Chief for Special Services. Police should immediately cease such surveillance once facts made known to them no longer support reasonable suspicion.
MPD should be prohibited from using agents provocateur.
Guidelines for Mass Demonstrations
The Committee recommends legislative guidelines for the Metropolitan Police Department in handling mass demonstrations to include the following. "Current MPD policy" refers to written policies contained in MPD’s Standard Operating Procedures for Mass Demonstrations, Response to Civil Disturbances and Prisoner Processing. As noted earlier in this report, the policies contained in the manual are generally sound but have been violated by the Department in recent years.
Prior to each mass demonstration, the police chief should issue a directive saying that MPD’s overall mission during mass demonstrations is to protect demonstrators’ First Amendment right to assemble and protest, and that in the event that individuals engage in unlawful behavior, those individuals shall be arrested without abridging the rights of others lawfully assembled.
Consistent with current MPD policy, MPD should not disperse nonviolent demonstrators in the absence of unlawful activity.
Consistent with current MPD policy, MPD should not arrest nonviolent demonstrators for failure to disburse or failure to obey an order without first giving multiple and clearly audible warnings and an opportunity for demonstrators to comply with police orders.
MPD should not arrest nonviolent demonstrators solely for failure to have a parade permit unless 1) there is another permitted demonstration planned for the same location 2) the demonstrators are blocking buildings or traffic 3) the demonstrators are acting disorderly.
MPD should not use police lines to surround and detain nonviolent demonstrators.
Consistent with current MPD policy, when conducting arrests during a mass demonstration, MPD should, through the use of field arrest forms and commander event logs, contemporaneously record facts necessary to establish probable cause for the arrests.
Individuals arrested during mass demonstrations should receive copies of their field arrest forms.
Consistent with current policy, when conducting mass arrests, when practical, MPD should film police actions in their entirety, including giving warnings and dispersing or arresting demonstrators, in accordance with existing regulations governing the use of Closed Circuit Television cameras.
MPD should not conduct a mass arrest based on the unlawful conduct of a few demonstrators. When arrests are necessary, MPD should only arrest those demonstrators responsible for the unlawful conduct.
MPD should follow its current use of force policy that: 1) the use of force, including riot batons, OC spray and chemical agents be used according to strict standards; 2) force should only be used as authorized by the highest ranking official on the scene, or, in the case of chemical agents, only as authorized by the chief of police; 3) the use of force should be documented and such documentation should be made available to the public consistent with the reporting requirements of MPD’s Memorandum of Agreement with the Department of Justice.
MPD should follow its current policy of using riot gear only at the authorization of the highest ranking official on the scene and only when there is reason to anticipate violence.
During mass demonstrations, all uniformed officers should be plainly identified by their badge numbers, which should be displayed in large numbers emblazoned on their jackets so as to be clearly visible to the public.
Uniformed officers should never remove their badges or any other identifying emblem, and supervisors should never authorize such removal, or be subject to disciplinary action.
Consistent with current MPD policy, plain-clothes officers should be required to identify themselves before taking any police action.
MPD should notify the Office of Citizen Complaint Review (OCCR) in advance of demonstrations in which mass arrests may be reasonably anticipated. OCCR should monitor each such demonstration, and should then issue a public assessment of police performance, identifying any police misconduct.
The Committee on the Judiciary met on March 4, 2004, to consider and mark up its report on the Investigation of the Metropolitan Police Department’s Policy and Practice in Handling Demonstrations in the District of Columbia. Present and voting were Chairperson Patterson and Councilmembers Sharon Ambrose and Jack Evans.
Chairperson Patterson briefly went over the findings and recommendations of the report, including the need to enact statutory guidelines for managing demonstrations and conducting surveillance of political organizations, and moved for Committee consideration of the report. She then called for discussion.
Councilmember Ambrose congratulated Chairperson Patterson and Committee staff on the investigation and report. She made two recommendations concerning the legislation envisioned in the Committee report. She said the legislation should provide policies for the department, and be written in such a manner that when circumstances change, the rules might be changed without requiring a full legislative process. She also said the closing of the convergence center in 2000 and the use of undercover officers to infiltrate political groups raise the need for drawing a "bright line" between what are the proper duties of the Metropolitan Police Department and what are the responsibilities of the Federal Bureau of Investigation, particularly as it concerns persons who come into the District from other parts of the country expressly to cause disruptions. She also said that the events recounted in the committee report, particularly concerning the need to discipline officers behaving in "an egregiously unconstitutional manner" were "chillingly familiar" and comparable to the events of the 1970s.
Councilmember Evans congratulated and thanked the Committee staff on the comprehensiveness of the report and said the investigation represents, "what the Council committees are supposed to do." He said there are many hard-hitting conclusions in the report; some he agrees with and some he does not. He said the report presents an "excellent roadmap" of issues for further consideration with respect to future demonstrations. He said it’s clear the Metropolitan Police Department "fell short" in handling the Pershing Park demonstrations, but noted that it is "a difficult line to draw" given the large volume of demonstrations that occur in the District. "This report should be required reading for every officer," he said. Turning to the events of 2000, also recounted in the report, Councilmember Evans said that regardless of what caused the damage in Seattle in November 1999, it was evident that protestors "were coming here next" and it was important for the Metropolitan Police Department to prepare to make certain "that this community not get busted up." He noted that "hindsight is 20/20" and that legislation in these areas "maybe makes sense; maybe not." He concluded that the report serves as a model of how all Committees should operate.
Councilmember Patterson then moved for approval of the report, with leave for staff to make technical corrections. The Committee voted as follows:
YES: Chairperson Patterson, Councilmember Ambrose and Councilmember Evans
ABSENT: Councilmember Harold Brazil and Councilmember Kevin Chavous
The Committee on the Judiciary held a 2-day public oversight hearing on the Judiciary Committee Investigation on current policies and practices of the Metropolitan Police Department related to demonstrations with the District on December 17– 18, 2003. Copies of the public testimony are included in Attachment xx. A summary of the hearing follows.
In opening the two days of hearings in December, Councilmember Patterson recounted the events of April 2000 and read from a letter to Mayor Williams and the then-chair of the financial control board written by constituents, both attorneys. Ross Eisenbrey and Barbara Somson wrote, they said, "to express our deep dismay over the manner in which the Washington Metropolitan Police Department handled the anti-IMF protest over the weekend of April 15. We request a thorough investigation into the actions of the MPD, which, as reported by the news media, appear to be unconstitutional and illegal."
The letter noted the apparently preemptive closing of the demonstrator’s convergence center "allegedly because of fire violations." Noting their experience, as parents, with fire code violations in public schools, the writers said "we cannot recall a single instance when a building was closed because of initial findings of fire code violations. We believe the actions of the MPD were nothing more than a pretext and plainly illegal." They also requested an investigation of hundreds of arrests that, according to press accounts also appeared preemptive "to prevent them from protesting at the opening of the IMF/World Bank meetings on Sunday, April 16."
Finally, they wrote,
Regardless of whether we agree with the message or the tactics of the protesters, we believe there is evidence that the MPD trampled on protesters’ constitutionally protected rights and interfered with academic freedom. In so doing, the MPD has jeopardized the rights of all of us. Reports of these police actions are beamed around the world, and risk making a mockery of the freedoms of speech and assembly that symbolize our nation. We urge you, as Chief Ramsey’s superiors, to conduct a thorough investigation of these charges and to report to District residents and to the world the results of your investigation, with recommendations for assuring that our constitutional rights are safeguarded here in the nation’s capital.
In her opening statement at the hearing, Councilmember Patterson also recounted testimony given to the Judiciary Committee on October 24, 2002. At that time the ACLU presented three witnesses who recounted their experiences during anti-war and anti-globalization demonstrations on September 27, 2002. All were arrested and detained for 24 hours or more. A young woman attorney, a computer programmer, and a retired Army lieutenant colonel shared their experiences with this committee (and subsequently became plaintiffs in one of the class action lawsuits against the District.).
Patterson noted that Joseph L. Mayer, the retired Army officer, said: "On Friday, September 27, in Washington D.C., my sense of my own place in society was stunned when I was arrested for the first time at the age of 69. This experience shook my confidence that our Constitution and my adherence to that rule of law, made me safe and secure on the streets of our capitol." The three witnesses were among the 400 or so individuals wrongfully arrested in Pershing Park that Friday morning in September.
We have seen police abuses in the past, here, and across the country. It is the job of elected policymakers, through oversight of the police department, to question, and, as necessary, to legislate parameters to make sure our department is protecting, and not jeopardizing, Constitutional rights.
Arthur Spitzer, Legal Director, American Civil Liberties Union of the National Capital Area ("ACLU-NCA")
Mr. Spitzer, on behalf of the ACLU-NCA, commended the Judiciary Committee for holding public hearings about the policies and practices of MPD relating to demonstrations. "[W]e believe this investigation will show the need for the Council to provide more detailed and effective guidance to the police with regard to their handling of demonstration activities," said Mr. Spitzer. He noted that while MPD is effective in handling routine demonstrations, the department has over-reacted when faced with demonstrations in which some sponsors announced the occurrence of civil disobedience. "We are not suggesting that there is any legal right to engage in civil disobedience…but non-violent civil disobedience does not justify police violence, and it certainly does not justify the arrest of hundreds of people who have not violated any law…". In addition, Mr. Spitzer presented to the Committee a ACLU-NCA report entitled, "The Policing of Demonstrations in the Nation’s Capital: A Misconception of Mission and a Failure of Leadership." The report contained 20 recommendations for Council action regarding policies and practices related to demonstrations.
Mara Verheyden-Hilliard, Partnership for Civil Justice and National Lawyers Guild Mass Defense Committee ("PCJ")
Ms. Verheyden-Hilliard, on behalf of PCJ, testified that the litigation by the PCJ has revealed, in their opinion, the systematic police abuse of demonstrators. She also testified that, in the organization’s opinion, MPD is engaged in an ongoing illegal domestic spying operation on political activists. Finally, Ms. Verheyden-Hilliard noted that PCJ has four pending First Amendment cases on behalf of demonstrators in Washington against the District government. A chart detailing the pending lawsuits as of December 15, 2003 is included as Appendix C.
Mark Goldstone, Chairman of the Demonstration Support Committee of the D.C. Chapter of the National Lawyer’s Guild- DC Chapter
Mr. Goldstone, on behalf of Demonstration Support Committee of the D.C. Chapter of the National Lawyer’s Guild- DC Chapter, testified that Chief Ramsey has implemented a plan – "The Ramsey Plan" – to thwart individuals demonstrating in the District. According Mr. Goldstone, the Ramsey Plan included scaring the media and the residents of the District with the potential for protestor violence and conducting mass arrests of protestors, sometimes preemptively, in order to disrupt the protestors plans. "…the Ramsey Plan has a chilling effect on people’s interest and motivation in speaking out against the government, of attending protests and rallies, and of even visiting downtown during demonstrations," said Mr. Goldstone.
Kristinn Taylor, Co-Leader, DC Chapter of FreeRepublic.com
Ms. Taylor testified on behalf of DC Chapter of FreeRepublic.com, an independent, grassroots conservative group that was established in September 1998. She testified that members of the FreeRepublic.com has held over 200 protests and demonstrations in the District and never had the alleged behavior of the MPD against the leftist groups directed at them. Ms. Taylor also testified that she has a hard time disagreeing with the department’s decision to arrest the 400 people in Pershing Park on September 27, 2002.
Beth Caherty, DC Chapter of FreeRepublic.com
Ms. Caherty testified that she believes in freedom of speech and expression for everyone, but did not believe that freedom of expression included the right to damage and destroy public or private property, riot, threats and intimidation. She noted that in more than three years of participation in peaceful demonstrations on the streets of DC, she never witnessed or been involved in an incident where any law enforcement agency has used excessive force or violated a person’s civil rights.
Mr. Eidinger testified that the Council should take action to ensure that the rights of political demonstrators are not violated by MPD. He noted that MPD, as well as other law enforcement agencies, needs to end the routine infiltration, disruption, mass arrests and intimidation of local political activists. He recommended that the city leaders and MPD agree on new rules for how demonstrations are served.
"For the record I was arrested on September 27, 2002 in Pershing Park while attempting to express my opposition to war on Iraq…The arrests were terrifying and a despicable violation of basics constitutional rights. Police forcibly removed us from the park even though we posed no threat to anyone and were never ordered to leave…I was in jail for about 26 hours, during that time I began to question, and to his day question, if this country is really free," said Mr. Eidinger.
Mr. Bell, a journalist with Washington DC Independent Media Center, as well as a freelance videographer, testified that MPD targeted and indiscriminately arrested journalists, including himself, on September 27, 2002. He also brought videotape that he believes illustrated this action.
John Brodkin, Americans for Deomcratic Action, Greater Washington Chapter
Mr. Brodkin testified on behalf of Americans for Democratic Action, Greater Washington Chapter, the nation’s oldest independent liberal political organization. He said that Americans for Democratic Action commends the Judiciary Committee’s decision to investigate MPD practices during political demonstrations. He noted that current policies of preventive arrests, massive police presence, and announcements hyping possible violence at demonstrations infringe on the fundamental rights of District residents and that Pershing Park arrests are a prime example of this type of action.
Dr. Lucy G. Barber, Author, Marching on Washington: the Forging of an American Tradition
Dr. Barber, a historian, was invited by the Judiciary Committee to provide a historical context of political protests in Washington, D.C. and how the police department handled the demonstrations. Dr. Barber described how MPD’s officers and their advisors responded to three different national protests in Washington between 1874 and 1971. She started with first "march on Washington" in 1894 by a group called Coxey’s Army where the police practiced a "line in the sand" strategy. The next march described was Bonus Army in 1932. In this protect, District’s officers used a policy called "forceful courtesy" towards the demonstrators. The final demonstration that Dr. Barber described was Mayday Protests of 1971. It was these protests where protestors threatened to "shut down" Washington and where MPD responded by preemptively disrupting protest events and by using mass arrests, resulting in over 12,000 arrests over a three-day period.
Robert Klotz, former Commander, Special Operations Division, Metropolitan Police Department
Mr. Klotz was invited by the Judiciary Committee to testify because he served as SOD commander in the late 1970s and early 1980s. He stated that the police must respect the rights of the demonstrators as well the rights of the people in the city. He also said that if the public could not tell whether police officer were supportive or not of the demonstrators that means the police have managed the event well.
Note: More information on the Klotz and Temple testimony is included in the Departing From Best Practices section.
Ralph Temple, former Legal Director, ACLU-NCA
Mr. Temple was invited by the Judiciary Committee to testify because he participated in the extensive litigation that followed the May Day 1971 arrests.
He praised the leadership of Mr. Klotz when he lead the department’s work on demonstrations and said, "except for Bob Klotz’s reign, it’s never been done right by the Metropolitan Police Department." In commenting on the trade meetings and protests in Seattle, Temple said there were large peaceful demonstrations that did not get any press attention. On the political side, he said, "There were much greater political benefits to the nation and to the world from the Seattle demonstrations than the downsides. It changed the whole world consciousness of trade issues, and it changed the political agenda for the world trade organizations." He presented the policy proposals of the American Civil Liberties Union, including a recommendation that police officials be disciplined for misrepresenting facts on police actions. "I’d go farther than the ACLU," he said. "I’d make it a prosecutable felony for a law enforcement official to publicly lie about a law enforcement action."
James Short, Deputy Fire Chief, Department of Fire and Emergency Medical Services ("FEMS")
Deputy Fire Chief Short provided testimony to clarify the role of FEMS in inspecting 1324 Florida Avenue, NW, known as the convergence center. Deputy Fire Chief Short noted that at the time, he was assigned as the Battalion Fire Chief at the Fire Prevention Bureau, which had responsibility in the enforcement of the Fire Prevention Code. In addition, he was tasked with supervising filed operations of the Mayor’s Nuisance Abatement Task Force.
Deputy Fire Chief Short testified that he first became aware of the convergence center when he viewed a local new broadcast that depicted activities that were unusual for that location. He said that he was contacted by MPD after the airing of the broadcast. After some research that revealed no permits for the premises, he conducted on April 15, 2000 a fire inspection of the property that revealed numerous fire code violations, including the use of propane gas and overcrowding. Deputy Fire Chief Short said that the occupants of the building were given approximately two hours to abate the fire code violations and when they failed to do so, the building was closed as authorized by the Fire Prevention Code.
Alfred J. Broadbent, Sr., Assistant Chief, Special Services Command, Metropolitan Police Department
Assistant Chief Broadbent, who is responsible for the management of the Special Services Command and coordinating and preparing the department for major events and demonstrations that occur in Washington, provided testimony on MPD’s philosophy regarding demonstrations within Washington. He said that MPD’s underlying philosophical principle related to managing and responding to demonstrations is to ensure that demonstrators have full opportunity to voice their First Amendment right, without fear. He noted that department’s purposed dedication to managing safe large scale demonstrations met a new challenge after the events in Seattle, WA in November 1999.
During those demonstrations surrounding the WTO, there was widespread looting, uncontrolled civil disobedience and over $3 million in property damage and destruction to downtown Seattle. Because of the unrest in Seattle, Assistant Chief Broadbent said that MPD was uncertain what to expect at the protests in April 2000 at the IMF/WB Conference. Therefore the department prepared for the worst possible scenario because it had received intelligence that the demonstration organizers wanted a repeat of Seattle in Washington, DC. Assistant Chief Broadbent noted because of the policies and procedures utilized by MPD, April 2000 demonstration proceeded in an orderly fashion and there was no destruction of property like in Seattle. In his final comments, Assistant Chief Broadbent said that he has traveled around the world as a consultant to share "best practices" with the respective law enforcement authorities and assist them in preparing for large-scale events.
Peter Newsham, Assistant Chief, Office of Professional Responsibility, Metropolitan Police Department
Assistant Chief Newsham, who is responsible for the Office of Professional Responsibility that encompasses the Office of Internal Affairs, the Civil Rights and Force Investigation Team, the department’s Disciplinary Review Office, the Compliance Monitoring Team, and the department’s Diversity Compliance and Equal Employment Opportunity Office, testified about his decision to arrest protesters in Pershing Park on September 27, 2002. He said that he was responsible for the geographical zone that included Pershing Park and the park was significant in terms of management of any large demonstration because of its proximity to the White House and to the 14th Street Bridge. He noted that since the attacks of September 11th, security has been heightened in the immediate area of the White House, and MPD must be concerned with ensuring that the security of the White House is not threatened or compromised in any way.
Assistant Chief Newsham said that he was aware that no parade permits had been issued for September 27, 2002 and therefore any street demonstrations would be, per se, unlawful. He also was aware that that some of the demonstrators in his zone who were unlawfully marking through the streets were knocking over trash containers and newspaper vending machines, and that at least one store window had been smashed by the demonstrators. He said that when he arrived at Pershing Park, he observed demonstrators converging on the park from every direction and disregarding traffic laws. Assistant Chief Newsham said that after observing the demonstrators for 45 minutes, he concluded that they had not intention of concluding their demonstration and dispersing, but would continue their unlawful demonstrations in the streets. He said that it was his determination, in the interest public safety, he should not allow this to occur.
Assistant Chief Newsham said that at some point he conferred with Chief Ramsey and Executive Assistant Chief Fitzgerald at Pershing Park. He said that he informed them that the demonstrators had already violated several laws and that he believed that there was probable cause to arrest the demonstrator. He also told Chief Ramsey and EAC Fitzgerald that the demonstrators should be arrested before they left the park so as to prevent further unlawful acts and potential violence. Assistant Chief Newsham said that he did not give orders for the demonstrators to clear the park for two reasons. First, he believed that probable cause already existed to arrest the demonstrators because of their unlawful actions prior to converging on Pershing Park. Second, he was concerned that if orders were given to clear the park, the demonstrators would leave the park as on organized group, and unlawfully take to the streets as they had previously done.
"Under the circumstances that occurred on September 27, 2002 in Pershing Park, I believed that his actions were lawful, reasonable, appropriate and that course of action that I took was necessary to minimize the likelihood of violence," said Assistant Chief Newsham.
Matthew Klein, Captain, Director of the Civil Rights and Force Investigation Division, Metropolitan Police Department
Chairperson Patterson asked Captain Klein questions about his role in the MPD investigation of the mass arrests at Pershing Park. Please see Pershing Park Investigation section.
Joshua Ederheimer, Captain, Deputy Director of the Institute of Police Sciences, Metropolitan Police Department
Chairperson Patterson asked Captain Ederheimer questions about his role in the MPD of the mass arrests at Pershing Park. Please see Pershing Park Investigation section.
Margret Nedelkoff Kellems, Deputy Mayor for Public Safety and Justice
"It is not the policy of this [Williams] Administration to stifle the free speech or assembly rights of demonstrators. It is not the policy of this Administration to preemptively arrest protestors because we think they might say something wrong. It is the policy of this Administration to protect (1) the rights of individuals to speak their piece, (2) the rights of individuals to be safe in their persons and in their property, and (3) the rights of organizations to gather and meet to discuss programs and policies that my be abhorrent to others," testified Deputy Mayor Kellems. She noted, contrary to some assertions, that there has not been fundamental change in MPD policies and practices regarding large-scale demonstrations. She said that MPD operations and practices are driven by information, intelligence, and experience.
Charles H. Ramsey, Chief of Police, Metropolitan Police Department
Chief Ramsey testified that he was extremely proud in the way the department has handled demonstrations. "[W]hen it comes to managing demonstrations and supporting the First Amendment rights of large number of people, espousing the whole spectrum of ideas and causes, the Metropolitan Police Department is among the very best – and we continue to get better," he said. He noted that in addition to upholding the rights of demonstrators, MPD has the equally important responsibility of protecting the lives and property of residents, business owners and others who are not associated with the protests. He also noted that demonstrations have changed since Seattle 1999.
Regarding the arrests of Perking Park in September 2002, Chief Ramsey testified that he directed MPD’s Office of Professional Responsibility to conduct a thorough review of the incident and the actions of department and produce a report on its findings. The report identified management and operational deficiencies that occurred during the Pershing Park incident. "The report also suggested three important changes related to our mass demonstrations procedures. In accepting these three areas for improvement, I also directed that 10 additional actions be taken in order to more fully address the deficiencies identified during our internal investigation," he said.
Thea Lee, Chief International Economist, AFL-CIO
Ms. Lee testified about the planning involved in the march and rally on "global justices issues" that occurred on November 20, 2003 in Miami Florida. She noted that AFL-CIO worked for months with the Miami officials over arrangements for the permitted march and rally, and that those arrangements were clearly ignored by the Miami police. She noted the importance of discipline among police officers, and said when police leaders permit a situation to escalate, "that trains activists to hate the police." On the issue of accountability, she said if there is evidence of police brutality, as she indicated there was in Miami, "there have to be consequences." More information on Lee’s testimony is included in the National Context section.
Timothy Lynch, Director, Project on Criminal Justice, The Cato Institute
Mr. Lynch expressed his concerns about the recent blurring of distinctions between military and police missions, a phenomenon he said began with the "drug war." This has included a greater level of training by law enforcement agencies as military units. He said the number of "SWAT" teams within police departments has skyrocketed, even in small town departments. The danger in blurring the military and the police mission is that the military represents the use of force, while the police mission is to assure public safety with the least amount of force possible. He said the Committee’s hearings were appropriate, and stressed the importance of police agencies avoiding "the military mindset." He described "good police work" as "making distinctions," including distinguishing between law-breaking vandals and demonstrators who may be unpleasant but not violating the law.
Frederick D. Cooke, Jr., Esq., former Corporation Counsel of the District of Columbia
Asked whether the Council should enact legislative guidelines for the Metropolitan Police Department, Mr. Cooke said yes, and said there has been too little interaction recently between the Office of the Corporation Counsel and MPD. In earlier years, including his tenure as Corporation Counsel, there was greater interaction between both the OCC and the U.S. Attorney and the police department. In discussing the issue of training and attitude with other panelists, Mr. Cooke said it is critical that police "not give in to fear" noting that a judgment that there is danger present "doesn’t mean everyone is dangerous."
Robert Weiner, Esq., former President, District of Columbia Bar Association and Senior Counsel to the White House Counsel
Mr. Weiner noted that some protesters may expressly seek a reaction from police in order to call attention to themselves and their casues, something police need to be careful to avoid. He emphasized the need for good training, including a grounding in constitutional law, and the need for adequate resources, including support from the federal government as needed. He said there is a legitimate purpose for undercover police work, including when there is reason to expect criminal behavior, and emphasized using the "least intrusive means" for a limited amount of time in undercover work to gather information.
Robert Spagnoletti, Corporation Counsel, Office of Corporation Counsel ("OCC")
Mr. Spagnoletti explained the role OCC has played in the District’s response to planned mass demonstrations. He said that when the District anticipates large-scale demonstrations, OCC works closely with District and federal agencies during the preparation phase, the operational phase, and the post-demonstration phase. He noted that there are where OCC could be more proactive in providing advice and guidance to embers of law enforcement and work to better control the District’s potential liabilities.
James Jacobs, Director, Office of Risk Management
"Given that decision making is at the center of the risk exposures associated with demonstrations, the most effective risk control strategies center on established and acceptable police and related training, supplemented by adequate supervision and continuous operational improvement," Mr. Jacobs said. He noted that MPD has a mass arrest manual as well as an event-specific manual to guide MPD activities.
COUNCIL OF THE DISTRICT OF COLUMBIA
Committee on the Judiciary
Councilmember Kathleen Patterson
John Wilson Building
1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
To: Kathy Patterson
From: Alina Morris
Date: November 25, 2003
Subject: MPD Investigation: Prior Restraint and First Amendment Issues
I. PRIOR RESTRAINT
The doctrine of prior restraint holds that an attempt to prevent publication or broadcast of any statement is an unconstitutional restraint on free speech and free press. The ban on prior restraint allows publication of libel, slander, obvious untruths, anti-government diatribes, racial and religious epithets, and almost any material, except if public security or public safety is endangered and some forms of pornography. (See law.com dictionary, available at http://dictionary.law.com). Free speech in public forums can be limited by time, place, and manner regulations, which take into account such matters as control of traffic in the streets, the scheduling of two meetings or demonstrations at the same time and place, the preventing of blockages of building entrances, and the like. (FindLaw for Legal Professionals, available at http://www.findlaw.com; see also Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640, 647 -50 (1981); Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)). Preventive limitations must be content-neutral, serve a significant governmental interest, and leave open ample alternative channels for communication of information. (See generally Ward v. Rock Against Racism, 491 U.S. 781 (1989); Clark v. Community for Creative NonViolence, 468 U.S. 288(1984)). For example, a requirement of one day advanced notice and registration of a demonstration and advance disclosure of the "sponsoring" group or individual was held to be prior restraint. Rosen v. Port of Portland, 641 F.2d 1243, 1247-50 (9th Cir. 1981).
Statutes requiring permits for demonstrations are not prior restraint, to the extent that there exists a neutral procedure for approving or denying the permit with response within a reasonable time. This is to prevent a deciding body from using dilatory tactics to prevent or selectively deny political speech. However, an ordinance requiring all speakers, demonstrators, and entertainers to obtain a permit before making use of the public parks was held unconstitutional. Grossman v. City of Portland, 33 F.3d 1200 (9th Cir. 1994). The District of Columbia Parks and Recreation Permit Procedures Manual specifies that a notice of availability will be mailed to the applicant within 10 business days after receipt of application, and requires registration and insurance for events at city parks with more than 250 people in attendance. DC Parks and Recreation Permit Procedures Manual (January 2003) at 2, 5-6.
The Metropolitan Police Department via the DC Emergency Management Agency issues "special events" permits, which include protests and demonstrations. The MPD website says,
The DC Emergency Management Agency (DCEMA) has the final word on special event planning in the Nation's Capital. According to the 1990 District of Columbia Special Event handbook of the DCEMA: "Special events are activities for which licenses and permits are required within the District of Columbia and where large numbers of persons may gather or participate. Such events may include parades, cultural programs, festivals, musical rock concerts, religious gatherings, block parties, community activities, and First Amendment Rights activities."
See Metropolitan Police Department—Services—Special Events In DC, at http://mpdc.dc.gov/serv/events/specialevents.shtm (last visited July 10, 2003) (emphasis added). The requirements include meeting with the Special Events Task Group at least 60 days prior to the proposed event, submitting 12 copies of a plan of action, and making a presentation about the event. Id. The MPD Web site suggests, "due to the large number of events held in Washington, DC, and the District's extensive regulations that govern event planning, you should contact the Task Force at least 120 days in advance of an event." Id. Such a process may be violative of the First Amendment if it serves to systematically prevent certain groups from assembling and speaking, such as those without the resources or organization necessary to conform to these regulations. Additionally, the site does not specify response time to the application of approval or denial of the permit.
Section 22-1307 of the D.C. Code deals with unlawful assembly, profane and indecent language, and states that
It shall not be lawful for any person or persons within the District of Columbia to congregate and assemble in any street, avenue, alley, road, or highway, or in or around any public building or inclosure [sic], or any park or any park or reservation, or at the entrance of any private building or inclosure [sic], and engage in loud and boisterous talking or other disorderly conduct, or to insult or make rude or obscene gestures or comments or observations on persons passing by, or in their hearing, or to crowd, obstruct, or incommode, the free use of any such street, avenue, alley, road, highway, or any of the foot pavements thereof, or the free entrance into any public or private building or inclosure [sic]; it shall not be lawful for any person or person to curse, swear, or make use of any profane language or indecent or obscene words, or engage in nay disorderly conduct in any street, avenue, alley, road, highway, public park or inclosure [sic], public building, church, or assembly room, or in any other public place, or in any place wherefrom the same may be heard in any street, avenue, alley, road, highway, public park or inclosure [sic], or other building, or in any premises other than those where the offense was committed, under a penalty of not more than $250 or imprisonment for not more than 90 days, or both for each and every such offense.
D.C. Code §22-1307 (2003). Arrests made under this statute must be pursuant to probable cause. If this statute withstands constitutional scrutiny, in the context of a large protest situation there would seem to be a low bar for individual probable cause, but less so for a mass arrest, as it would be difficult to determine whether every person there was engaging in the prohibited activity, or may be trying to leave or just observing.
II. OFFICERS’ ACTIONS AND QUALIFIED IMMUNITY
The standard governing police conduct is composed of two elements, the first being subjective and the second objective. Tatum v. Morton, 402 F.Supp. 719, 723 (D.C. 1974). Thus, the officer must prove not only that he believed in good faith that his conduct was lawful and also that his conduct was reasonable. Id.
The District of Columbia and a police officer acting in his individual capacity were liable for First Amendment damages in Tatum v. Morton after the officer arrested demonstrators for failing to obey an order for dispersal of a peaceful, permitted vigil outside the White House. 562 F.2d 1279 (D.C. Cir. 1977). In Tatum, a peaceful Quaker group scheduled a prayer vigil regarding Richard Nixon and Vietnam to be held outside the White House from noon to midnight. Id. at 1280. When persons thought to be "outsiders" joined the vigil, police lines were established and the vigil participants were ordered to disperse. Id. Police testified that they thought these outsiders were from a disorderly group observed the night before on the grounds of the Washington Monument. Tatum, 402 F.Supp. 719, 721. When the plaintiffs refused, they were arrested. Tatum, 562 F.2d 1279, 1280. Approximately three to four hours of confinement went by before any plaintiffs were offered the opportunity to post collateral. Id. at 1281. The district court found the officer’s establishment of police lines and ordering of dispersal objectively unreasonable. Id.
In Gregory v. Chicago, the Court found that demonstrators were arrested not for disorderly conduct, as the police cited, but for demonstrating, which is a violation of due process. 394 U.S. 111 (1969). Justice Warren described it as a "simple case." Id.
Petitioners, accompanied by Chicago police and an assistant city attorney, marched in a peaceful and orderly procession from city hall to the mayor’s residence to press their claims for desegregation of the public schools. Having promised to cease singing at 8:30 p.m., the marchers did so. Although petitioners and the other demonstrators continued to march in a completely lawful fashion, the onlookers became unruly as the number of bystanders increased. Chicago police, to prevent what they regarded as an impending civil disorder, demanded that the demonstrators, upon pain of arrest, disperse. When this command was not obeyed, petitioners were arrested for disorderly conduct.
Id. at 111-12. He continued that "[h]owever reasonable the police request may have been and however laudable the police motives, petitioners were charged and convicted for holding a demonstration, not for a refusal to obey a police officer." Id. at 112.
Restraint on speech must be narrowly tailored, but government and police officers have a duty to protect the citizenry from violence. Thus, strict requirements govern when a state actor can restrict speech without harming the First Amendment. The Supreme Court articulated three requirements in Brandenburg v. Ohio, all of which must be met before a peace officer can lawfully abridge speech. 395 U.S. 444 (1969). First, the speaker must promote "imminent" lawless action. This would include, for example, a contemporaneous exhortation for a lynching, assault, mayhem, etc. Second, the imminent lawless action must be highly "likely" to occur. Speaking to a highly angered or charged crowd that is susceptible to such suggestion would make the action likely to occur. Third, the speaker must intend to produce imminent lawless action; the speech must be "directed to inciting or producing imminent lawless action." In Cox v. Louisiana, a civil rights leader’s exhortation to the assembled crowd to stage "sit ins" at uptown lunch counters resulted in police dispersal and arrest. 379 U.S. 536 (1965). The Court held this action was an unconstitutional abridgement of the demonstrators’ First Amendment rights, "this part of Cox’s speech obviously did not deprive the demonstration of its protected character under the Constitution as free speech and assembly." Id. at 459. Moreover, there was "no indication that the mood of the students was ever hostile, aggressive, or unfriendly." Id. at 479. Applied to some of the facts in recent globalization demonstrations in the District of Columbia, Brandenburg may show that the police were not justified in restraining speech. Exhortations on a website to "shut down the city," a scavenger hunt with points for certain types of destruction and assault, or windows broken blocks away from a central gathering, may not satisfy the requirement of imminence.
The best argument the police would have for the validity of their actions is that they reasonably did think violence was imminent. Although exhortations were made on a Website and property damage may have happened a distance away, today’s society is more mobile and technically savvy than at the time of Brandenburg. Thus, groups may mobilize quickly via electronic technology. Further, in Planned Parenthood of the Colombia/Willamette, Inc. v. American Coalition of Life Activists, the 9th Circuit held that "wanted" posters targeting abortion providers were illegal threats of violence. 290 F.3d 1058 (9th Cir. 2002) cert. denied 123 S. Ct. 715 (2002). Thus, it would be a question of fact whether online statements, particular specific details of a violent "scavenger hunt" may count as exhortations of violence.
B. Previous Violence is not Grounds for Banning Demonstrations
In United States v. Baugh, the court pointed out that, "[o]rganizers of protests ordinarily cannot warrant in good faith that all the participants in a demonstration will comply with the law. Demonstrations are often robust. No one can guarantee how demonstrators will behave throughout the course of the entire protest." 187 F.3d 1037, 1043 (9th Cir. 1999). A complete ban on First Amendment activity cannot be justified simply because past similar activity led to violence. Id. at 1043-44. The case of Collins v. Jordan dealt with demonstrations and police action in the wake of the Rodney King verdict. 110 F.3d 1363 (9th Cir. 1997). The day after the Rodney King verdict, a demonstration in downtown San Francisco led to a number of violent injuries. The next day, the mayor issued an order for officers, among other things, to implement a policy of custodial arrests (instead of citations) to disperse all gatherings whenever the officer has reason to believe the gathering endangers or is likely to endanger persons or property. Id. at 1367. That day, a group assembled in downtown San Francisco. The police ordered dispersal. As people moved away from the central area, people were encircled and arrested. Id. at 1368. The arrestees were held up to 55 hours. Id. at 1369. The court held that the earlier violence fell far short of "the type of occurrence that could have led any reasonable official to believe that it would be constitutional to impose a city-wide ban on all demonstrations and that the law to that effect was clearly established. Id. at 1373. Moreover, the police officer who ordered the dispersal of the gathering was not entitled to qualified immunity against claims that he violated the First Amendment rights of demonstrators. Id. at 1379.
Collins stands for the principles that unlawful conduct must be dealt with after it occurs, acting before demonstrators have broken the law is presumptively a First Amendment violation, and that keeping demonstrators in custody to keep them from demonstrating violates their individual First Amendment rights. 110 F.3d 1363. These ideas may be extended to the actions taken in the District of Columbia. In particular, vague fears of violent demonstrations in the wake of Seattle and Genoa on the part of police are legitimate reasons to curb demonstrators’ speech and assembly. Moreover, MPD has been dealing with the same group of protestors since April 2000 (and probably earlier; one of the complaints says they've been protesting since 1996); these groups have been demonstrating twice a year for the past three years without serious unrest or any cause for preemptive action. As a matter of fact, no major problems with protests in the city had occurred between the May Day riots in the early 1970s, and the present disturbances beginning in 2000. Further, officers at the scene and officers involved in creation of orders and policy to disperse demonstrators may not be entitled to qualified immunity from suit.
C. Probable Cause and Arrest
The case of Sullivan v. Murphy was a class action arising out of mass arrests made during May Day anti-war demonstrations. 478 F.2d 938 (D.C. Cir. 1973), cert. denied 414 U.S. 880 (1973). The arrestees challenged the procedures used in effecting the arrests, the disposition of criminal charges, and the maintenance of arrest records. The court held that disorderly conduct arrests were presumptively invalid if they were not accompanied by a contemporaneous photograph and field arrest form. This presumption could be rebutted upon an affirmative showing that any particular arrest was based on probable cause. Id. Moreover, the court held that it was unconstitutional to arrest demonstrators for disorderly conduct at the scene of anti-war demonstrations, without probable cause determinations made at the time of arrest, in hope that evidence uncovered during the process of detention would serve as the basis for some prosecutions. Id. This may be analogized to alleged MPD practices of intelligence-gathering on protesters. Videos showed police, upon raiding the convergence center in April 2002, taping not just the fire hazards cited for shut-down, but also names and identifying information posted on a communal message board.D. Application
Looking at the alleged record of events in the demonstration and arrest in Pershing Park in September of 2002, prior restraint may well have occurred. Many of the alleged infractions happened far away in time and space from the arrest. For example, a group of bicycle protesters were riding from Union Station to downtown, and were guided and herded into Pershing Park by police officers. The two most popular reasons for arrest for people were "failure to obey a police order" and "parading without a permit." While if the protesters indeed had blocked traffic and were walking in the streets (instead of on the sidewalks), they can be arrested, the police must notify them right away and arrest them as soon as possible, instead of allowing them to keep walking, but guiding them into the park for a mass arrest.
III. VIEWPOINT DISCRIMINATION
In Sammartano v. First Judicial District, an unwritten policy at the Carson City Public Safety Complex directed security personnel not to permit individuals if they were wearing "clothing having symbols, markings or words indicating an affiliation with street gangs, biker, or similar organizations which could be disruptive and/or intimidating. 303 F.3d 959, 963 (9th Cir. 2002). Plaintiffs, wearing biker apparel, were denied admission. Id. The court agreed that the rule banning this type of clothing was unreasonable, and the risk asserted by defendants was unreal. Any Metropolitan Police policy, written or otherwise, targeting anarchists and those "dressed in black" may likewise be unconstitutional viewpoint discrimination.
We have observed in some of the training videotapes and protest footage that the police may indeed have targeted people dressed in all black, who may have identified themselves as anarchists. However, police may also have observed discrete identifiable groups instigating violence. In particular, the April 2000 video footage shows a crowd milling around the Navy Memorial, when anarchists dressed in black started attacking other protesters in the crowd. It is proper for the police to take action upon a particular group, identified as anarchist, in this type of situation. However, an incident like this would not empower the police to crack down on a different anarchist group several blocks away.
COUNCIL OF THE DISTRICT OF COLUMBIA
Committee on the Judiciary
Councilmember Kathleen Patterson
John Wilson Building
1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
To: Amy Mauro
From: Josh Harris
RE: Excessive Force: Overview
The Use of Force Model was designed as an instructional method developed by Professor Greg Connor of the Police Training Institute at the University of Illinois, a nationally renowned expert in the field of police training in the use of force. The Model’s stated purpose is to provide a template for the standardization of police force utilization in confrontational situations. In the Integrated Force Management Training Manual, Professor Connor systematically outlined the theory behind the Use of Force Model. Additionally, it should be noted that Professor Connor’s theory is the basis of the Metropolitan Police Department’s new General Orders relating to Use of Force.
The Use of Force Model establishes three factors in order to objectively support the reasonable use of force: (1) the nature of the risk, ranging from strategic to lethal; (2) the officer’s perception of the subject’s action, ranging from compliant to actively resistant; and (3) the force used by the officer in order to gain control and compliance, ranging from verbal communication to lethal force. Additionally, the Model recognizes the fluidity of a real-life situation. As such, an officer’s use of force based on the above-mentioned factors can escalate, de-escalate or stabilize in response to changing conditions. This process is known as Tactical Transition.
Nature of the Risk
The Nature of the Risk is classified according to a Threat Perception Color Code that assigns a color to the various levels of threat perception: blue, green, yellow orange and red. These categories include strategic, tactical, volatile, harmful and lethal. A Strategic threat level is identified by the color blue and is the lowest level of threat assessment. The Tactical threat level is indicated by the color green and represents an increase in threat potential. The Volatile category, represented by the color yellow, requires the officer to increasingly focus on the actions of the subject and the safety of those nearby. The Harmful category, orange, represents an increase in the threat level due to the subject’s ‘assaultive actions.’ The Lethal category, represented by the color red, is the most hazardous level. This level is activated after a potentially lethal assault has been initiated.
Perceived Subject Action
There are five categories of Perceived Subject Action. Compliant is the most common category and requires only verbal communication throughout the encounter. Resistant (Passive) involves a subject who is noncompliant but may be brought into compliance without physical or mechanical defiance by the officer. Resistant (Active) also addresses a noncompliant subject, but here, the level of noncompliance requires "enhanced physical or mechanical defiance." Assaultive(Bodily Harm) refers to an actual assault on the officer. This level does not support the use of lethal force. However, in the Assaultive (Serious Bodily Harm/Death) category, the officer may conclude that lethal force is necessary based on the subject’s actions.
The Response Categories includes Cooperative Controls, Contact Controls, Compliance Techniques, Defense Tactics and Deadly Force. Cooperative Controls are most commonly employed when the Perceived Subject Action is Compliant. Accordingly, the officer is to, "capitalize upon the acceptance of authority" by the use of a variety of communication and body language skills. Contact Controls are to be employed in the first instance of non-compliance when the Perceived Subject Action is Resistant (Passive). Here, the officer employs non-pain contact measures to establish control. Compliance Techniques refers to the response to be used when the Perceived Subject Action has reached a level of Resistant (Active). At this stage, ‘balanced force’ is to be used to overcome non-compliance, including pain compliance, joint restraints and chemical irritants. Defensive Tactics are those directed to toward a subject that has reached the Assaultive (Bodily Harm) level of Perceived Subject Action. At this point, the officer is justified in taking action to halt the assault, including weapons strikes, and canine apprehension measures. Deadly Force is the final and most severe responsive measure, to be used when the Perceived Subject Action level has risen to the Assaultive (Seriously Bodily Harm/Death) level. This response is to be used only when "absolute and immediate tactics must be deployed to stop the lethal risk" and may include those acts that may lead to permanent disability or death.
Finally, the Integrated Force Management Program utilizes a ‘Force Indexing Form’ to allow the agency to track and survey the force response employed in each situation. Accordingly, an officer must identify the appropriate categories of Threat Perception, Perceived Subject Action and Response Used in a standardized form provided by the Department.
COUNCIL OF THE DISTRICT OF COLUMBIA
Committee on the Judiciary
Councilmember Kathleen Patterson
John Wilson Building
1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
To: Investigation Staff
From: Josh Harris
RE: Administrative Searches and Pretext
On April 15, 2000, 1328 Florida Ave, N.W. was inspected by the District of Columbia Fire and Emergency Medical Services Department, Fire Prevention Bureau, in pursuant to District of Columbia Municipal Regulations Title 12D, Chapter 1, §108.1, which reads, in part
The code official shall inspect all structures and premises, except single-family dwellings and dwelling units in two-family and multiple family dwellings, for the purposes of ascertaining and causing to be corrected any conditions liable to cause fire, contribute to the spread of fire, interfere with fire fighting operations, endanger life or any violations of the provisions or intent of this code or any other ordinance affecting fire safety.
The building, designated as a commercial warehouse rather than a residence, was being used as a ‘convergence center’ for the Mobilization for Global Justice, an umbrella organization that consisted of several groups including the American Friends Service Committee, City at Peace and the Washington Artist’s Group. The building was leased from the Douglas Development Corporation for a period of two weeks. Inspector Ronald P. Elam was listed as the authorized representative of the District of Columbia. The authority for such inspections is found in §108.3 of the Municipal Regulations, which provides the right of entry, "whenever necessary for the purpose of enforcing the provisions of this code, or whenever the code official has reasonable cause to believe that there exists in any structure or upon any premises, any condition which makes such structure or premises unsafe." Pursuant to this authority, Inspector Elam cited the following 29 violations he observed while inspecting 1328 Florida Ave:
F 107.2: No Permits for Propane
F107.1: No Permits for Place of Assembly
F3606.1: Improper Storage of Propane
F309.1: No Hood System for Kitchen
F310.6: Electrical Box Open w/o "Face"
F402.2: Unsafe Use of Lighting Equipment, Inside and Out
F601.5: No Egress Plans
F406.2: Cooking w/ Propane Grill inside Building
F519.6: Fire Extinguishing not mounted
F3601.2: Permit Required
F110.1: People Sleeping Inside Electrical Room
(No Citation Provided) No Smoke Detectors
F110.1: Flammables stored throughout building (paint, paint thinner, etc.)
F110.3: Unsafe Conditions
F607.1: Fire Door Removed from corridor
F306.1: Combustible Material hanging throughout
F504.1: Fire Alarm System not installed as to Code
F310.5: Improper Use of Extension Cords
F610.2: Exit lights defected throughout, "all defected"
F110.1: Excessive storage of combustibles around open electrical box
F110.1: Faulty wiring from electrical box to truck
F601.3: Means of Egress; Owner Responsible
F605.1: Exit Doors Stairway and Passageways obstructed
F609.1: Bars on windows
F608.1 Doors knobs missing on "exit door"
In an April 17, 2000 letter to Deputy Fire Chief Adrian Thompson, Paul Millstein of the Douglas Development Corporation advised that he "had no idea of the actual activities of persons occupying the above address." Millstein stated that he was led to believe that the tenants were organizing a training workshop for puppet making. "We are outraged at this misrepresentation," Millstein said, adding, "had we been aware of the true motives of this group, we would never have permitted their assembly at any or our properties."
II. Case Law
In 1967, the Supreme Court expressly recognized the constitutionality of ‘warrantless administrative searches.’ In Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967), the defendant was charged with violating the San Francisco Housing Code when he refused to allow a warrantless inspection of his home. Id. The Court held that the probable cause requirement of the Fourth Amendment could be established if, "a valid public interest justifie[d] the intrusion contemplated." Id. at 539. The Court identified such factors as, "the passage of time, the nature of the building (e. g., a multi-family apartment house), or the condition of the entire area," as examples of sufficiently valid public interests. Id. Such a finding makes clear that the Fourth Amendment probable cause requirement should not be uniformly applied to all types of searches. The ‘probable cause’ necessary to support a warrantless administrative is to be measured by the state interest in effectuating a particular regulatory scheme rather than actual suspicion of a legal violation.
In Donovan v. Dewey, 452 U.S. 594 (1981), the Supreme Court further explained the justification for this more relaxed ‘probable cause’ requirement, specifically as applied in the commercial setting. The appellant, a federal mine inspector was denied access to conduct an administrative mine inspection as per Section 103(a) of Federal Mine Safety and Health Act of 1977. Id. at 596. Accordingly the Secretary of Labor filed a civil action to enjoin the mining company from refusing such administrative searches. Id. at 597. The Court held that legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment, reasoning that the "greater latitude to conduct warrantless inspections of commercial property reflects the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual's home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections." Id. at 598.
In New York v Burger, 482 US 691 (1987), the Supreme Court again addressed the issue of administrative searches. In Burger, police officers performed an administrative search on respondent’s auto junkyard pursuant to a New York State law. Id. at 693. In the course if this search, the police uncovered several stolen vehicles. Id. at 694. The Court of Appeals held that the statute was unconstitutional as it authorized warrantless searches in order to uncover criminal activity. Id. at 697. The Supreme Court reversed, holding that auto junkyards were a "closely regulated industry." Id. at 701. Accordingly, such industries have a reduced expectation of privacy.
The Court held that a state must satisfy three separate requirements in order to justify this form of privacy reduction. First, a state must have a "substantial interest that informs the regulatory scheme pursuant to which the inspection is made." Id. at 702. Second, the search must be "necessary to further that regulatory scheme." Id. Finally, "the statute's inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant." Id. at 703. In this case, the Court held that preventing motor vehicle theft satisfied the requisite state interest. Id. at 708.
However, precedent also makes clear that administrative searches cannot be used to circumvent the probable cause standard required in a criminal search. The Supreme Court has held that ‘pretextual searches,’ in which the justification given for the search is valid but is used for invalid purposes, are unconstitutional abuses of the Fourth Amendment. In Scott v. United States, 436 U.S. 128 (1978), the Supreme Court announced that alleged Fourth Amendment violations can only be resolved using the objective reasonableness of the conduct in question instead of attempting to determine the subjective motivations of the officer. Id. at 138. "The fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Id.
Several years later, the Supreme Court elaborated on the "objective reasonableness requirement" announced in Scott. In United States v. Villamonte-Marquez, 462 U.S. 579 (1983), the Supreme Court held that a stop and boarding of a vessels was constitutional when made in furtherance of vessel documentation laws. The defendants’ attempted to establish pretext using both the stated subjective and objective manifestations of intent. The defendants’ argued that customs agents were merely investigating in response to a tip that the vessel in question contained narcotics. Id. at 584. Moreover, the defendants’ argued that the accompanying police officers were not a necessary incident to such a routine administrative document check. Id.
The Court quickly disposed of these pretext arguments, holding, "this line of reasoning was rejected in a similar situation [Scott]… and we again reject it. Id. While Villamonte-Marquez does not offer an express formulation of what type of evidence would objectively establish pretext, it makes clear that the mere presence of law enforcement or the receipt of a ‘tip’ cannot suffice absent more concrete evidence.
Finally, in United States v Whren, 517 U.S. 806 (1996), the Supreme Court held rejected the defendants argument that a police stop, pursuant to an actual traffic violation should be viewed as a pretextual attempt at finding illegal narcotics. According to the Court, outside the limited context of administrative and inventory searches, an officer’s motivation to act cannot invalidate what was an otherwise justifiable search predicated on probable cause under the Fourth Amendment. Id. at 812. As such, Whren reaffirms that pretext is still a legitimate invalidating principle in administrative searches.
The Florida Avenue search was clearly administrative in nature, established both by the statutory authority cited by the presiding officials at the scene and by the nature of the search itself. Accordingly, the case law reviewed above has repeatedly affirmed the use of pretext as a way to invalidate such searches.
However, this same case law has also limited the ways in which such pretext can be established. As Villamonte-Marquez makes clear, subjective manifestations of intent will not suffice. This leaves ‘objective’ manifestations as the sole means of establishing intent.
While the Court has routinely struck down any attempts to establish motive through subjective intent, circumstantial objective evidence may be permissible. Examples of such evidence may include the video footage recorded incident to the Florida Avenue search, in effect a record of police interest in the building. Similarly, any correspondences between the Fire and Police Departments may also prove useful in establishing the law enforcement interest in the building. Given the degree of coordination between the two Departments in conducting and documenting the search, there would most likely be a paper trail between the two, either by way of formal notification from one department to the other or a request for police assistance in conducting the search.
The pretext argument may also be buttressed by the number of times an administrative search has been conducted at 1328 Florida Avenue in the past as well as the number of administrative searches conducted annually. Similarly, it may be useful to find out if any notice was given to the tenants of the Florida Avenue address, and, if not, if this is in keeping with usual practice. Additionally, if notice was given to any representative of the Douglas Development Corporation, if there was ever any request on behalf of the Police or Fire Departments not to inform their tenants. As such, in our next document production request, we should consider obtaining copies, if they exist, of any of the foregoing communications in an effort to establish an objective manifestation of an pretextual and thus illegal administrative search.
COUNCIL OF THE DISTRICT OF COLUMBIA
Committee on the Judiciary
Councilmember Kathleen Patterson
John Wilson Building
1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
To: Investigation Staff
From: Josh Harris
RE: Domestic Spying Case Law
In arguing against the legality of police surveillance, a plaintiff must first demonstrate that they have actually been injured by the surveillance. Most commonly, suits alleging unconstitutional government surveillance of lawful political activity allege that the "chilling effect" of police surveillance on speech establishes the requisite injury-in-fact. As the following cases make clear, the "chill" must be more than speculative. Litigants must demonstrate that the government action actually created an injury-in-fact. If plaintiffs fail to meet this burden, the case will not reach the merits.
However, once standing has been established, the government may still justify the intelligence gathering methods in question by demonstrating a compelling government interest. Justifications such as public safety and crime prevention have been judged to meet this standard. However, if the government fails to meet this burden, courts will order declaratory or injunctive relief. Such relief usually takes the form of a consent decree, tailored to remedy the constitutional violation.
In one of the earliest applications of this rationale, Anderson v. Sills, 56 N.J. 210 (1970), the New Jersey Supreme Court rejected the "chilling effect" rationale as a basis for standing, holding that
[t]he question in the case is not merely whether there are some individuals who might be "chilled" in their speech or associations by reason of the police activity here involved. Rather the critical question is whether that activity is legal, and although the amount of "chill" might in a given case be relevant to the issue of legality, the fact of "chill" is not itself pivotal. Indeed, the very existence of this Court may "chill" some who would speak or act more freely if there were no accounting before us for trespassers against others. (Anderson v Sills 56 N.J. 210, 226 (1970)).
Supreme Court Decisions
In Laird v. Tatum, 408 U.S. 1 (1972), the United States Supreme Court held that plaintiffs must demonstrate that they sustained or were immediately in danger of sustaining a direct injury as a result of the challenged state action. Id. The Court ruled that the plaintiffs, activists challenging the constitutionality of the United States Army's surveillance of political events, failed to meet this requirement. According to the Court, "in order to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action." Id. at 14. Thus, Laird makes clear that allegations of a speculative chill on speech are not enough to establish a justiciable injury.
Two years later, the Supreme Court elaborated the Laird rationale in Socialist Workers Party v. Attorney General, 419 U.S. 1314 (1974). In distinguishing this case from Laird, Justice Marshall explained that
In this case, the allegations are much more specific: the applicants have complained that the challenged investigative activity will have the concrete effects of dissuading some…from participating actively in the convention and leading to possible loss of employment for those who are identified as being in attendance. Whether the claimed "chill" is substantial or not is still subject to question, but that is a matter to be reached on the merits, not as a threshold jurisdictional question. The specificity of the injury claimed by the applicants is sufficient, under Laird, to satisfy the requirements of Art. III. Id. at 1320.
Regardless, Marshall denied the plaintiffs’ request for injunctive relief, citing the limited nature of the FBI’s investigation, the limited dissemination involved, and the potential injury to their investigative efforts. Id. Thus, Marshall’s opinion makes clear that once the justiciability threshold is met, the conduct in question should be measured against the nature of the government’s interest.
In Meese v. Keene, 481 U.S. 465 (1987), the Court again took the occasion to elaborate when standing to challenge police conduct is established. In Meese, a film exhibitor filed a lawsuit to enjoin the designation of several Canadian films as "political propaganda" under the Foreign Agents Registration Act of 1938, 22 U.S.C.S §§611-621. Appellee argued that this designation would injure his, "personal, political, and professional reputation." Meese at 472. The Court re-iterated the Laird standard requiring, "a claim of specific present objective harm or a threat of specific future harm." Laird at 14.
However, in this case, the Court agreed that appellee’s allegations established a justiciable injury, beyond a mere "subjective chill." Meese at 472. In contrast to Laird, the Court held that harm to a plaintiff's reputation in the community constitutes a cognizable injury that suffices to establish standing.
This line of Supreme Court precedent establishes a two-prong analysis in determining whether a police surveillance activity violates Constitutional rights. First, a cognizable injury must be demonstrated. Injury sufficient to satisfy this prong includes specific allegations of a concrete harm, or concrete injury to one’s reputation in the community. Second, it must be established that the injury was the result of action outside the scope of legitimate state interests. Any surveillance activity that chills speech or injures reputation can only be sustained if the defendant can demonstrate a 'compelling' state interest that cannot be achieved by any less intrusive means. The subsequent lower court treatment establishes precedent for resolving the conflict between First Amendment liberties and the compelling state interests associated with political intelligence gathering.
Second Circuit Court of Appeals
In Fifth Avenue Peace Parade Committee v. Gray, 480 F.2d 326: (1973), the Second Circuit upheld theFBI's collection and dissemination of information from a political organization's bank records. The court ruled that it was, "[b]eyond any reasonable doubt the FBI had a legitimate interest in and responsibility for the maintenance of public safety and order during the gigantic demonstration planned for Washington, D.C. In fact, had it been ignored the agency would be properly chargeable with neglect of duty." Id. at 332.
The court distinguished this case from Laird, stating that, "[t]he ongoing and pervasive military surveillance of civilian activity alleged in [Laird] would seemingly create a more understandable apprehension of inhibition of First Amendment rights, than the ad hoc response of a civilian agency here to a major and massive demonstration in Washington, D.C." Id. at 331. As such, the Court ruled that the plaintiffs failed to state a cognizable injury and that the state actions were in pursuance of a legitimate interest in public safety. Id. at 333.
Second Circuit: District Court for the Southern District of New York
In Handschu v. Special Services Division, 349 F. Supp. 766 (1972), the District Court for the Southern District of New York held that the New York City Police Department’s intelligence gathering operations involving political activists did establish a justiciable injury by creating a chilling effect on the group’s First Amendment activities. The court held that the allegations regarding the use of police infiltrators and provocateurs constituted charges of direct injury, "beyond the pale of Laird."
While the court acknowledged that informers and infiltrators constitute a valid investigative technique, the court placed clear limits on their use. "[T]hose so engaged may not overstep constitutional bounds; the Bill of Rights protects individuals against excesses and abuses in such activities. . . . [T]he initiation and inducement of criminal activity by government agents is proscribed." Id. at 770. Specifically, the court took note of an allegation involving a police informer who urged demonstrators to participate in unlawful conduct. Id. As a result of the named informer’s conduct, the demonstrators disbanded. As such, the Court ruled that the allegations established an injury as a result of activity, beyond passive observance, outside of legitimate state interests.
Third Circuit Court of Appeals
In Philadelphia Yearly Meeting of the Religious Society of Friends v. Tate, 519 F.2d 1335 (1975), theThird Circuit ruled that plaintiff’s challenge to the intelligence activities of the Philadelphia Police Department created a chilling effect on First Amendment Rights. Like the Second Circuit in Gray, the Court found that sharing information with other governmental agencies "having a legitimate law enforcement function" was not unconstitutional in itself. Id. at 1338. Rather, the lack of dissemination standards created a justiciable injury.
In this case, the Police Department, "specifically identified the plaintiff organizations and four of the individual plaintiffs as being the subjects of police dossiers," on a national television broadcast. Id. The Court determined that this conduct created a chilling effect on speech and was beyond the scope of legitimate police interests. "It is not apparent how making information concerning the lawful activities of plaintiffs available to non-police groups or individuals could be considered within the proper ambit of law enforcement activity, particularly since it is alleged that plaintiffs are subject to surveillance only because their political views deviate from those of the establishment." Id. As such, this case establishes guidelines as to the limits of the constitutionality of intelligence dissemination.
Fourth Circuit Court of Appeals
In Donohoe v. Duling,465 F.2d 196 (1972), the Fourth Circuit held that police surveillance of political and religious gatherings did not create a deterrence effect on the exercise of first amendment rights. Reiterating the Supreme Court’s rationale in Laird, the Court held that "[t]here must be a claim of specific present objective harm or a threat of specific future harm in order to support a justiciable claim for relief in a case of this type. Allegations of a subjective chill will not suffice. Nor may a plaintiff base his right to sue on injury to another." Id. at 202.
According to the Court, "the ‘chilling’ effect of executive actions, falling short of a direct restraint of First Amendment rights, would not give rise to a justiciable cause." Id. The mere fear that, "some other and additional action detrimental to that individual" might be taken will not establish a justiciable injury. Id.
Sixth Circuit Court of Appeals
In Ghandi v. Police Department of Detroit, 747 F.2d 338 (1984), appellants argued that illegal acts of a police informant violated their constitutional rights; including advocating a kidnapping scheme so as to allow for a police search of their headquarters. The Court reversed the lower court’s summary judgment in favor of appellee because the alleged conduct constituted a direct injury, beyond mere surveillance activity.
However, on the merits, the Court dismissed the charges for lack of evidence. In so doing, the Court reiterated the rationale of the Handschu court, stating, "The use of secret informers or undercover agents is a legitimate and proper practice of law enforcement and justified in the public interest -- indeed, without the use of such agents, many crimes would go unpunished and wrongdoers escape prosecution. It is a technique that has frequently been used to prevent serious crimes of a cataclysmic nature." Id. at 347. In this case, the Court found no facts to support an allegation of any conduct beyond "mere surveillance." Id.
Seventh Circuit Court of Appeals
In Alliance to End Repression v City of Chicago, 237 F.3d 799 (2001), the Seventh Circuit reversed a consent decree governing police surveillance operations. Citing changed circumstances, the Court agreed to modify, "the draconian regulations" (established in Alliance to End Repression v. Chicago, 561 F. Supp. 537 (1982)). This agreement was the product of litigation arising from Alliance to End Repression v. Rochford, 407 F. Supp. 115 (1975). In that case, the District Court held that the Chicago Police Department’s political intelligence gathering practices created a justiciable injury.
Plaintiffs allege that said activities are carried out under the auspices of a vague and overly broad mandate contained within a general order of the Chicago Police Department directing its Intelligence Division to gather intelligence on organizations and individuals who pose "a threat to the security of the country, state or city." It is alleged that as a result of the above mandate, the defendants have engaged in a continuing pattern and practice involving the following activities: (1) surveillance and intelligence-gathering on individuals and organizations engaged in lawful activities; (2) unlawful wire-tapping and other forms of electronic surveillance; (3) unlawful entry and seizure; (4) dissemination of derogatory information concerning plaintiffs; (5) summary punishment and harassment, and (6) infiltration of private meetings and political organizations by informers and provocateurs. Id. at 116.
The Rochford court ruled that the allegations, if proven, "would establish a course of conduct which would substantially more intrusive than the conduct engaged in by the defendants in [Laird v Tatum, 408 U.S. 1 (1972)]." Id. at 119.
Tenth Circuit Court of Appeals
In Riggs v Albuquerque, 916 F.2d 582 (1990), the Tenth Circuit Court of Appeals ruled that plaintiffs, political activists and organizations, established a justiciable injury when they alleged the Intelligence Unit of the Albuquerque Police Department kept improper investigative files on them.
The Court noted that a plaintiff seeking prospective relief must establish continuing harm as a result of the conduct. Id. at 586. As such, the Court ruled that an allegation of past harm or speculative future harm alone does not confer jurisdiction to seek prospective relief. Id The Court determined that because, "plaintiffs in this case allege that defendants continue to conduct illegal surveillance of plaintiffs' activities…they have alleged a cognizable, continuing injury which presents a case or controversy for the court to consider." Id.
In distinguishing this case from Laird, the Court held that plaintiffs were alleging more than a generalized "chill." Instead, plaintiffs were alleging, "harm to their personal, political, and professional reputations." Id.
DC Court of Appeals
In, Hobson v Wilson, 737 F.2d 1 (1984), The Court of Appeals for the DC Circuit reversed a district court judgment against the MPD and D.C, while affirming liability against the FBI. Plaintiffs, several Washington-area protestors, alleged members of the MPD Intelligence Division served undercover in their organizations, in furtherance of its stated mission to gather information on "persons, groups, and organizations whose activities might be detrimental to the proper functioning of local, state, or national governments." Id. at 13. A demonstrator who was identified later as an MPD officer, urged a crowd to disobey parade instructions and instead to march to an area where police awaited. Further, MPD encouraged informants to take private mailing lists and membership lists, and in one instance to break into an office at night to take a metal strong box.
The Plaintiffs alleged that the FBI, MPD and DC conspired with each other, "to impede plaintiffs' efforts to associate with others for the purpose of publicly expressing opposition to the Vietnam War, national and local Government race relations policies, and other Government actions." Id. at 2. These alleged activities fell under the auspices of COINTELPRO, an FBI program that ran from 1967 until the early 1970s. Ultimately, the court reversed a district court judgment against the MPD and D.C. based on sufficiency of evidence grounds. Id. at 97. However, the court affirmed liability against the FBI, affirmed the award of punitive damages, and remanded the expungement of records and damage issues. Id.
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