Coalition letter to Berkeley Police Review Commission

Coalition for a Safe Berkeley
March 23, 2012

To: Members, Police Review Commission
1947 Center Street
Berkeley, CA 94704

PRC members:

We appreciate the attention your Commission and the Mutual Aid Subcommittee in
particular are devoting to understand the mutual aid and related issues. Thank you for
your patience in listening to community members, and hearing our concerns regarding
police policies, practices, and inter-agency agreements.

Members of our Coalition have attended all of the Subcommittee meetings and listened to
your deliberations carefully. As a follow-up to our letter of 3/9/12, here are some
questions we recommend you consider discussing within your Commission, or as
questions to the BPD, as appropriate.

1) NCRIC/SARs:
Regarding Suspicious Activity Reports, or SARs, the Coalition is concerned about SARs
that are non-criminal in nature.
What verbal or written guidelines have been given to BPD officers of various levels
to determine if the activity requires a SAR?

Captain Harris stated that she was not yet able to provide the PRC Mutual Aid
Subcommittee with the SAR policy. If there is no existing policy, then how have police
been determining when to file a SAR?

What is the BPD’s definition of a Suspicious Activity Report?

Chief Meehan’s letter to the Council states that the BPD will not submit a SAR unless it
constitutes at least reasonable suspicion that a crime has occurred or is being planned.
Please determine if this standard means that the focus of such suspicion is limited to an
individual. If not confined to an individual, it may open the possibility of a broader net
of intelligence collection and reporting.

Does the BPD have a relationship with the Joint Terrorism Task Force? If so,
please determine and disclose the terms of the agreement.

Given the widespread scapegoating of Middle Eastern, Muslim, and South Asian
(MEMSA) people, peace activists, and immigrants in the post-9/11 era, how can the city
prevent intelligence sharing with other police agencies and federal authorities from being
used to further religious, ethnic, or political profiling by other agencies, particularly if
there is no way to recall a SAR?

What is the legal basis for the BPD’s position that, after the filing of a SAR, it is
owned by NCRIC and cannot be disclosed by the BPD?

What safeguards are in place to ensure that police action does not rely on unsubstantiated
allegations?

It appears that intelligence supplied by NCRIC relies in part on SARs submitted by other
public or private actors, which may not adhere to the BPD’s standard of reasonable
suspicion.

Please request a more complete description of the SARs mentioned by Lt. Randy
Files, particularly the one filed for taking photos.

At an open PRC meeting recently, Lt. Files verbally described two SARs that the
department had submitted. From the general level of information he provided, we
understand that one was a report on commission of an actual crime, the theft of license
plates; and one was a more classic report of suspicious behavior regarding taking pictures.
Please determine what behavior was considered suspicious in the latter case.
The Coalition recommends that Police Review Commissioners and BPD staff review the
2007 ACLU report, “What’s Wrong With Fusion Centers?” by Mitchell German and Jay
Stanley, for an overview of concerns including private sector and military participation,
the dangers of data mining, and excessive secrecy in their operations. 1

2) UASI:

What are the terms of the agreement with UASI?

Chief Meehan’s Council letter refers to the UASI agreement as a verbal one. City law
requires BPD to reduce to writing all terms and conditions of the agreement. Thus, the
lack of a written summary of the agreement terms is in violation of Berkeley law
requiring public disclosure of all police agreements. 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. 2

1 http://www.aclu.org/files/pdfs/privacy/fusioncenter_20071212.pdf

2 http://www.codepublishing.com/CA/Berkeley/cgi/NewSmartCompile.pl?code=Berkeley&ext=html&key=3
36&path=/ca/berkeley/html/Berkeley02/Berkeley0204/Berkeley0204030.html#2.04.170
See Appendix for excerpts.

What is the relationship between NCRIC and UASI? Does UASI rely on
intelligence derived from SARs?

Please identify the funding and training provided by UASI.

Also, please identify the functions that UASI may fulfill with respect to preparedness and
response for disaster and civil unrest among Bay Area law enforcement agencies. Is
UASI, for the purposes of Berkeley’s relationship to it, solely a funding and training
mechanism, or does it coordinate preparedness and response for disaster and civil unrest
among Bay Area law enforcement agencies?

If the latter, what safeguards does the BPD have to ensure that civil liberty protections are
assured in any UASI-related activities in which it participates?

How can the civilian leadership of the City, and by extension civil society, be
informed and be involved with oversight of training programs such as Urban
Shield?

The Chief’s letter refers to Urban Shield as the “gold standard for preparing teams to
respond to large-scale incidents.” Yet community concern has emerged due to both press
accounts and personal observation of the recent training episodes.

What funds, and for what purposes, has Berkeley received from UASI? What
equipment has been received from or paid for by UASI?

Should the City Council find it necessary to do so, how can the funding function of UASI
for equipment and the like be separated from the operational and training functions?
Similarly, how can the anti-terrorism component of the operational and training functions
be divorced from treatment of civil unrest, and from the management of natural
disasters?

NOTE ON BPD INTERNAL POLICIES:

Captain Harris has stated that J-1 (Jails)—Item 4, C-1 (Criminal Intelligence)—Item 5,
and M-2 (Mutual Aid)—Item 6 are BPD policies, not external agreements, and therefore
do not have to be approved by Council. However, Council specifically tasked the PRC
with visiting these policies and recommending whether it should be changed, on the same
timeline with the review of the agreements.

Please refer to the “February 14, 2012 Council Agenda as Amended,” which reads:
“M/S/C (Capitelli/Wozniak) to approve agreements with the Northern California
Regional Information Center, the Urban Area Security Initiative, and the University of
California Police Department and to refer the bullet point information from supplemental
recommendations 1 and 2 as well as items 4, 5, and 6 in their entirety to the City
Manager and the Police Review Commission for consideration in the 2012 Mutual Aid
Agreement review process. City Manager to report back to Council by May 15, 2012.” 3
(Emphasis added.)

3) Criminal Intelligence (C-1)

General Order C-1 specifies that “when a group or individual being investigated is
involved in Constitutionally protected First Amendment activity, the Department will
insure that there is reasonable suspicion that a criminal predicate exists.”
In his Feb. 14 letter to Council, Chief Meehan states that “a blanket policy to neither
investigate nor take action with respect to planned civil disobedience protests is not wellfounded.”
We are not asking for a blanket policy. The Coalition’s proposal is to define the limits on
law enforcement investigating or collecting intelligence on groups or individuals.
Nothing in our proposal limits the responsibility of the BPD to enforce the law and arrest
law-breakers involved in “violent confrontations” creating public safety emergencies.
The issue with investigations of First Amendment activities is that they may create a
chilling effect with regard to constitutionally protected free expression. This is
particularly the case with respect to communities with a historical record of compromised
relations with law enforcement or immigration authorities, due to racial or religious
profiling or political repression.

We propose the BPD not investigate non-violent civil disobedience protests unless a
reasonable suspicion is established that such “violent confrontations and public safety
emergencies” will take place.

In your deliberations and your proposal, please speak to this specific point, in order to
protect Berkeley’s values in support of peaceful protest.

Chief Meehan recently alleged in a public meeting that police had information on
February 18 that a group of demonstrators were planning to take over the University
police department. By the terms of General Order C-1, intelligence gathering on
Constitutionally protected First Amendment activity is limited to Open Sources, i.e., “any
source of news or information that could normally be accessed by any member of the
public.” Since multiple participants in the march at issue have strongly contested the
allegation that any such incident was discussed, and no evidence has been publicly
presented in its support, the PRC and the public are entitled to an explanation of the
source of the allegation and of how it qualified as “reasonable suspicion.”

4) Mutual Aid

We propose the following questions:

3 http://www.ci.berkeley.ca.us/ContentDisplay.aspx?id=75618

How can Berkeley focus our mutual aid support for other jurisdictions on disaster
relief and major crimes, and avoid participation in the suppression of non-violent civil
disobedience as recently took place with the evictions of Occupy Oakland and Cal?

How can Berkeley ensure that officers from other jurisdictions operating in
Berkeley, particularly in mutual aid events, act in accordance with our policing
values?

What is the BPD's responsibility when it observes violations of laws by police
officers in other jurisdictions, particularly when conducting joint activities?

5) Jails/Immigration Detainers

Chief Meehan’s Feb. 14 letter references the Council resolution prohibiting City
assistance to federal immigration law enforcement except as required by law. The
Coalition has provided him with legal citations for the voluntary nature of the ICE civil
immigration detainer request.

Is the BPD now prepared to support the proposal to create an exemption in policy J-
1, with reference to paragraph 139, for civil immigration detainers?
Local law enforcement agencies have a legitimate interest in, and a historic tradition of
viewing policing activities as distinctly separate from federal immigration enforcement.
This is especially crucial in self-declared communities of refuge such as Berkeley. Public
statements from law enforcement leaders carry great weight with public opinion and
government leaders.

Will Chief Meehan also commit to publicly supporting the Trust Act?

Oakland police chief Howard Jordan publicly stated his support for the California Trust
Act (AB 1081), recently re-introduced in the state legislature, authorizing localities to
refuse cooperation with ICE civil detainers.

Will the Chief communicate to Alameda County Sheriff Ahern his request that Ahern
cease turning over undocumented immigrants to ICE, as in the case of Pancho Ramos?
Appendix:

BMC Chapter 2.04: City Council. Article 3: Agreements with Law Enforcement
Agencies. Excerpts follow.

2.04.150 Purpose of Provisions. “…Law enforcement activities and procedures within
the City limits are a major matter of policy in the governance of the City. The general
purpose of the ordinance codified in this article is to provide for the public disclosure
and City Council approval of the terms and conditions of agreements, understandings,
or policies reflecting such relationships, and for community involvement in the process
of such approval, prior to the date on which the agreements, understandings or policies
take effect and City funds are expended in implementation thereof. (Ord. 4640-NS § 1,
1973)

2.04.160 Cancellation Required When—Funding Restrictions. “All agreements, letters
or memoranda of understanding of policies which express terms and conditions of mutual
aid, information sharing, cooperation and assistance, between the City and/or the
Berkeley Police Department and all other local and state (including University of
California Police Department, Alameda County Sheriff and California Highway Patrol)
and federal law enforcement, military and/or intelligence agencies, police departments
or private security organizations, are cancelled ninety days from April 17, 1973, unless
approved by the City Council in accordance with Section 2.04.170 of this article. No
funds of the City shall directly or indirectly be expended in implementation of any such
agreement, understanding or policy unless the provisions of this article are complied with.
(Ord. 4640-NS § 2, 1973)”

2.04.170 Approval—Public Hearing Required. “After April 17, 1973, no such agreement,
understanding or policy shall be valid or effective unless specifically approved by the
City Council following public hearings on the same as hereinafter provided. All terms
and conditions of such agreements, understanding or policies shall be reduced to writing
and presented to the City Council for approval by the Berkeley Police Department or
appropriate City official, accompanied by a statement of the rationale therefor,
projections of the costs of implementation, and other information or explanations
requested by the council. (Ord. 4640-NS § 3, 1973)”

2.04.190 Period of Validity—renewal. “No such agreement, understanding or policy
shall be valid or effective for more than one year following City Council approval, but
each may be renewed or extended following the disclosure, public hearing and
documentation procedures provided for in Sections 2.04.170 and 2.04.180 of this article.
(Ord. 4640-NS § 5, 1973)”
(Emphasis added.)