Police Agreements, Policies (Letter)

Mayor Tom Bates and Members of the Berkeley City Council
Civic Center Building
2180 Milvia Street
Berkeley, CA 94704

REGARDING: City Council review of five Law Enforcement Agency Agreements/Police Department General Orders pulled for further review and discussion on November 8, 2011

Summary:  Berkeley Municipal Code (BMC) § 2.04.170 and § 2.04.190 require that all agreements between the Berkeley Police Department and other law enforcement agencies, federal and state agencies, military entities, and private security organizations must be reviewed and approved annually by the Berkeley City Council after holding a public hearing.

On November 8, 2011, the City Council held a public hearing and discussed approval of “Berkeley Police Department Agreements, Letters and Understandings re Mutual Aid, Information Sharing and Cooperation with Other Law Enforcement, Military Entities, and Private Security Organizations.”  At that meeting, the Council adopted Resolution No. 65,505-N.S approving most of the documents, but held over five documents for further review and discussion.  The five documents were:
Three Agreements with other Law Enforcement/Federal Agencies:
¥	Northern California Regional Intelligence Center (NCRIC)
¥	Department of Homeland Security, Urban Areas Security Initiative (UASI) Program
¥	University of California Police Department (UCPD) operational agreement

Two Police Department policies:
¥	Criminal Intelligence (General Order C-1)
¥	Jail Operations and Services to Outside Agencies (General Order J-1)

The City Council has the opportunity to modify, approve or disapprove these five agreements and policies. We would like to thank the City Council for holding over these five documents for additional discussion and review.  As we discuss below we have many concerns regarding the impact of these policies on the civil rights and civil liberties of Berkeley residents and therefore believe that some changes to these documents are needed.

We have serious concerns with the City Council approving these five documents as presently written. Therefore, the Coalition for A Safe Berkeley and the organizations endorsing these recommendations below urge the Berkeley City Council:
¥	Not approve the agreement with the Northern California Regional Intelligence Center (NCRIC).
¥	Not approve the agreement with the Urban Areas Security Initiative (UASI).
¥	Recommend that the City Manager and Chief of Police modify General Order M-2, regarding BPD providing mutual aid to University of California Berkeley Police Department (UCBPD) and other law enforcement agencies, to provide protection for First Amendment-protected activity or non-violent civil disobedience.  Additionally, after responding to a request for mutual aid, BPD should to report to City Council about the reason for the request for mutual aid, the extent of the city’s involvement and if possible provide information on the fiscal and operations impacts of the mutual aid response.
o	Council should provide direction to the City Manager and Chief of Police to negotiate with the UCBPD an agreement that to the extent practicable, that UCBPD will follow our police procedures while operating within the City’s jurisdiction, since State Education Code Section 23501 and the UCBPD operational agreement allow UCBPD to engage in enforcement activity within one mile of campus or in/around UCB properties.
¥	Request that the City Manager and Chief of Police amend General Order C-1 to clarify the limits of law enforcement record-keeping and surveillance related to non-violent civil disobedience and other First Amendment activity.
¥	Request that the City Manager and Chief of Police amend General Order J-1 to restrict the honoring of civil immigration detainers only to limited circumstances (persons convicted of violent or serious crime).


NCRIC
 NCRIC is a partnership between federal, state and local law enforcement agencies, coordinated with the FBI's Bay Area Joint Terrorism Task Force at Fusion Centers.  Fusion Centers receive Suspicious Activity Reports (SARs) from law enforcement agencies and private entities.  SARs may be completely subjective reports of benign activities such as taking photographs of public buildings.  SARs do not have to be based on reasonable suspicion of criminal activity. This subjective reportage lends itself to racial, political, and religious bias and can further the profiling that is increasingly occurring across the country.  Civil rights and civil liberties organizations have expressed grave concern that SARs and Fusion Centers will have a negative impact on community relations with local police.
The BPD has contributed at least one non-criminal SAR to the Fusion Center in San Francisco, where the FBI enters data into the NCRIC database.  Given recent accounts of sweeping FBI investigations of the Russian-American and Chinese-American communities in San Francisco, and NYPD surveillance of Muslim communities in New York City, Berkeley must ensure that our police department operates according to the California constitution’s privacy provisions and Berkeley’s commitment to First Amendment protections.
In addition, no written agreement between the City of Berkeley Police Department and NCRIC has been made publicly available, in violation of BMC § 2.04.180.   Due to the Council's action on Nov. 8, 2011, this agreement is currently not in effect.  However, the citizens of Berkeley are paying for up to two BPD police officers to operate under NCRIC as Local Terrorism Liaison Officers. Also, to our knowledge, there are insufficient safeguards limiting when and under what circumstances the Berkeley Police Department issues a Suspicious Activity Report, and no requirement for reasonable suspicion of a crime.  The widespread accounts of Suspicious Activity Reporting and Fusion Centers leading to profiling, along with the lack of local safeguards, warrants the Berkeley City Council to NOT APPROVE the agreement with NCRIC.

UASI
The Urban Areas Security Initiative works closely with the NCRIC and therefore raises the same concerns as NCRIC.  Additionally, UASI is the conduit for Berkeley’s participation in the Urban Shield program.  Urban Shield is an annual SWAT team exposition with a national reputation for militarizing local police agencies.  In October 2011 the exercise used the UC Berkeley campus as a training ground for urban warfare. According to Police Magazine, a law enforcement trade publication, “Law enforcement agencies responding to Occupy protesters in northern California [the violent eviction of Occupy Oakland shortly after the exercise] credit Urban Shield for their effective teamwork.”
Therefore, we urge the City to sever its ties with the UASI program.
MUTUAL AID AND UCBPD AGREEMENT
Fortunately BPD was not involved in the violent crack-down by UCBPD against students on Nov. 9, 2011.  We are thankful that BPD was not involved in that incidence of police brutality and applaud the City Council for pulling the UCBPD agreement for further review in light of the City’s past response to mutual aid requests during demonstrations and civil disobedience and problems with excessive use of police force at Occupy Oakland in October 2011.

UCBPD and other police departments may have different values than our police department. Berkeley police have well-developed policies on crowd control and use of force. However, in instances where we respond to mutual aid, while we have a command officer on the scene, the requesting agency is coordinating the police activity. Additionally, when UCBPD or other law enforcement agencies respond to our requests for mutual aid, they may not comply with our police procedures. Because of issues around mutual aid response during instances of non-violent civil disobedience, the overall City mutual aid policy (General Order M-2) and all mutual aid agreements should be re-evaluated to ensure that our police officers are not sent to other jurisdictions to simply suppress protected First Amendment activity or non-violent civil disobedience and arrest people involved in such activity.

Protecting public safety within the framework of Constitutional guarantees is crucial.  Our response to mutual aid requests should be confined to cases where there is a strong likelihood of violence or other threats to the safety of the public. In addition, the BPD should report to Council after it deploys officers in response to a request for mutual aid, stating the purpose of the request for mutual aid, the extent of the City’s involvement, and the cost and operational impacts to the City.

We urge that Council provide this direction to the City Manager and Chief of Police to modify General Order M-2 and in negotiations with UCBPD and other law enforcement agencies as part of the process of reviewing Mutual Aid Agreements for 2012.

Additionally, the Council should provide direction to the City Manager and Chief of Police to negotiate with the UCBPD an agreement that to the extent practicable, UCBPD will follow our police procedures while operating within the City’s jurisdiction, since State Education Code Section 23501 and the UCBPD operational agreement allow UCBPD to engage in enforcement activity within one mile of campus or in/around UCB properties.


CRIMINAL INTELLIGENCE POLICY AND FIRST AMENDMENT RIGHTS
Under the current criminal intelligence policy (General Order C-1), BPD may investigate individuals or groups who are or may be engaged in non-violent civil disobedience, as long as there is a reasonable suspicion of illegal activity. There is no distinction in the policy between serious or violent crimes and non-violent offenses that are committed as a form of civil disobedience. The City should review its current policy to define the limits of surveillance of speech and assembly; to limit gathering, recording and/or sending non-criminal intelligence to Fusion Centers or other intelligence gathering centers; and to preserve Berkeley's proud tradition as a protector of First Amendment rights of speech and assembly.
 We urge the City of Berkeley to define the limits on law enforcement investigating or collecting intelligence on groups and individuals engaged in speech, assembly and other non-violent civil disobedience, while preserving and protecting First Amendment rights.
JAILS POLICY
The current Jails policy (General Order J-1) provides that prisoners who are otherwise ready for release be held if subject to detainers.  Federal Immigration and Customs Enforcement may request, through a civil immigration detainer, that the Berkeley Police hold prisoners beyond their release date, so that ICE can take custody of the prisoner. Berkeley Police are under no statutory obligation to hold prisoners subject to ICE detainers. City Police compliance with ICE detainers violates the City of Refuge Policy, which prohibits Berkeley Police or any other City employees from enforcing federal immigration law. Additionally, on November 15, 2011, the Berkeley City Council adopted a resolution urging the County of Alameda to no longer honor civil immigration detainer requests in County jails unless the prisoner is convicted of a violent or serious felony.
We urge that the Berkeley City Council direct the City Manager and Chief of Police to modify General Order J-1 so that no person be held in Berkeley jails because of civil immigration detainers.

Berkeley has a proud tradition of free speech and assembly and respecting and safeguarding the civil liberties of all people. It is important to have mutual aid agreements with other law enforcement agencies so that in the event of an emergency or natural disaster, we can call on their support to protect the safety of Berkeley residents. Nevertheless, recent events, including various police agencies’ responses to Occupy demonstrations, show that there is a need for additional review of our mutual aid policy and of other police policies regarding intelligence gathering and sharing and immigration. We the undersigned organizations strongly urge the Berkeley City Council to modify these agreements and policies so that we can continue to give our Police Department the resources it needs to protect public safety while preserving and respecting the civil rights and civil liberties of Berkeley residents.
Sincerely,
Coalition for a Safe Berkeley