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Coalition letter to Berkeley Police Review Commission

OccupyBerkeley Mar 24th, 2012 328 Never
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  1. Coalition for a Safe Berkeley
  2. March 23, 2012
  3.  
  4. To: Members, Police Review Commission
  5. 1947 Center Street
  6. Berkeley, CA 94704
  7.  
  8. PRC members:
  9.  
  10. We appreciate the attention your Commission and the Mutual Aid Subcommittee in
  11. particular are devoting to understand the mutual aid and related issues. Thank you for
  12. your patience in listening to community members, and hearing our concerns regarding
  13. police policies, practices, and inter-agency agreements.
  14.  
  15. Members of our Coalition have attended all of the Subcommittee meetings and listened to
  16. your deliberations carefully. As a follow-up to our letter of 3/9/12, here are some
  17. questions we recommend you consider discussing within your Commission, or as
  18. questions to the BPD, as appropriate.
  19.  
  20. 1) NCRIC/SARs:
  21. Regarding Suspicious Activity Reports, or SARs, the Coalition is concerned about SARs
  22. that are non-criminal in nature.
  23. What verbal or written guidelines have been given to BPD officers of various levels
  24. to determine if the activity requires a SAR?
  25.  
  26. Captain Harris stated that she was not yet able to provide the PRC Mutual Aid
  27. Subcommittee with the SAR policy. If there is no existing policy, then how have police
  28. been determining when to file a SAR?
  29.  
  30. What is the BPD’s definition of a Suspicious Activity Report?
  31.  
  32. Chief Meehan’s letter to the Council states that the BPD will not submit a SAR unless it
  33. constitutes at least reasonable suspicion that a crime has occurred or is being planned.
  34. Please determine if this standard means that the focus of such suspicion is limited to an
  35. individual. If not confined to an individual, it may open the possibility of a broader net
  36. of intelligence collection and reporting.
  37.  
  38. Does the BPD have a relationship with the Joint Terrorism Task Force? If so,
  39. please determine and disclose the terms of the agreement.
  40.  
  41. Given the widespread scapegoating of Middle Eastern, Muslim, and South Asian
  42. (MEMSA) people, peace activists, and immigrants in the post-9/11 era, how can the city
  43. prevent intelligence sharing with other police agencies and federal authorities from being
  44. used to further religious, ethnic, or political profiling by other agencies, particularly if
  45. there is no way to recall a SAR?
  46.  
  47. What is the legal basis for the BPD’s position that, after the filing of a SAR, it is
  48. owned by NCRIC and cannot be disclosed by the BPD?
  49.  
  50. What safeguards are in place to ensure that police action does not rely on unsubstantiated
  51. allegations?
  52.  
  53. It appears that intelligence supplied by NCRIC relies in part on SARs submitted by other
  54. public or private actors, which may not adhere to the BPD’s standard of reasonable
  55. suspicion.
  56.  
  57. Please request a more complete description of the SARs mentioned by Lt. Randy
  58. Files, particularly the one filed for taking photos.
  59.  
  60. At an open PRC meeting recently, Lt. Files verbally described two SARs that the
  61. department had submitted. From the general level of information he provided, we
  62. understand that one was a report on commission of an actual crime, the theft of license
  63. plates; and one was a more classic report of suspicious behavior regarding taking pictures.
  64. Please determine what behavior was considered suspicious in the latter case.
  65. The Coalition recommends that Police Review Commissioners and BPD staff review the
  66. 2007 ACLU report, “What’s Wrong With Fusion Centers?” by Mitchell German and Jay
  67. Stanley, for an overview of concerns including private sector and military participation,
  68. the dangers of data mining, and excessive secrecy in their operations. 1
  69.  
  70. 2) UASI:
  71.  
  72. What are the terms of the agreement with UASI?
  73.  
  74. Chief Meehan’s Council letter refers to the UASI agreement as a verbal one. City law
  75. requires BPD to reduce to writing all terms and conditions of the agreement. Thus, the
  76. lack of a written summary of the agreement terms is in violation of Berkeley law
  77. requiring public disclosure of all police agreements. Berkeley Municipal Code
  78. (BMC) § 2.04.170 and § 2.04.190 require that all agreements between the Berkeley
  79. Police Department and other law enforcement agencies, federal and state agencies,
  80. military entities, and private security organizations must be reviewed and approved
  81. annually by the Berkeley City Council after holding a public hearing. 2
  82.  
  83. 1 http://www.aclu.org/files/pdfs/privacy/fusioncenter_20071212.pdf
  84.  
  85. 2 http://www.codepublishing.com/CA/Berkeley/cgi/NewSmartCompile.pl?code=Berkeley&ext=html&key=3
  86. 36&path=/ca/berkeley/html/Berkeley02/Berkeley0204/Berkeley0204030.html#2.04.170
  87. See Appendix for excerpts.
  88.  
  89. What is the relationship between NCRIC and UASI? Does UASI rely on
  90. intelligence derived from SARs?
  91.  
  92. Please identify the funding and training provided by UASI.
  93.  
  94. Also, please identify the functions that UASI may fulfill with respect to preparedness and
  95. response for disaster and civil unrest among Bay Area law enforcement agencies. Is
  96. UASI, for the purposes of Berkeley’s relationship to it, solely a funding and training
  97. mechanism, or does it coordinate preparedness and response for disaster and civil unrest
  98. among Bay Area law enforcement agencies?
  99.  
  100. If the latter, what safeguards does the BPD have to ensure that civil liberty protections are
  101. assured in any UASI-related activities in which it participates?
  102.  
  103. How can the civilian leadership of the City, and by extension civil society, be
  104. informed and be involved with oversight of training programs such as Urban
  105. Shield?
  106.  
  107. The Chief’s letter refers to Urban Shield as the “gold standard for preparing teams to
  108. respond to large-scale incidents.” Yet community concern has emerged due to both press
  109. accounts and personal observation of the recent training episodes.
  110.  
  111. What funds, and for what purposes, has Berkeley received from UASI? What
  112. equipment has been received from or paid for by UASI?
  113.  
  114. Should the City Council find it necessary to do so, how can the funding function of UASI
  115. for equipment and the like be separated from the operational and training functions?
  116. Similarly, how can the anti-terrorism component of the operational and training functions
  117. be divorced from treatment of civil unrest, and from the management of natural
  118. disasters?
  119.  
  120. NOTE ON BPD INTERNAL POLICIES:
  121.  
  122. Captain Harris has stated that J-1 (Jails)—Item 4, C-1 (Criminal Intelligence)—Item 5,
  123. and M-2 (Mutual Aid)—Item 6 are BPD policies, not external agreements, and therefore
  124. do not have to be approved by Council. However, Council specifically tasked the PRC
  125. with visiting these policies and recommending whether it should be changed, on the same
  126. timeline with the review of the agreements.
  127.  
  128. Please refer to the “February 14, 2012 Council Agenda as Amended,” which reads:
  129. “M/S/C (Capitelli/Wozniak) to approve agreements with the Northern California
  130. Regional Information Center, the Urban Area Security Initiative, and the University of
  131. California Police Department and to refer the bullet point information from supplemental
  132. recommendations 1 and 2 as well as items 4, 5, and 6 in their entirety to the City
  133. Manager and the Police Review Commission for consideration in the 2012 Mutual Aid
  134. Agreement review process. City Manager to report back to Council by May 15, 2012.” 3
  135. (Emphasis added.)
  136.  
  137. 3) Criminal Intelligence (C-1)
  138.  
  139. General Order C-1 specifies that “when a group or individual being investigated is
  140. involved in Constitutionally protected First Amendment activity, the Department will
  141. insure that there is reasonable suspicion that a criminal predicate exists.”
  142. In his Feb. 14 letter to Council, Chief Meehan states that “a blanket policy to neither
  143. investigate nor take action with respect to planned civil disobedience protests is not wellfounded.”
  144. We are not asking for a blanket policy. The Coalition’s proposal is to define the limits on
  145. law enforcement investigating or collecting intelligence on groups or individuals.
  146. Nothing in our proposal limits the responsibility of the BPD to enforce the law and arrest
  147. law-breakers involved in “violent confrontations” creating public safety emergencies.
  148. The issue with investigations of First Amendment activities is that they may create a
  149. chilling effect with regard to constitutionally protected free expression. This is
  150. particularly the case with respect to communities with a historical record of compromised
  151. relations with law enforcement or immigration authorities, due to racial or religious
  152. profiling or political repression.
  153.  
  154. We propose the BPD not investigate non-violent civil disobedience protests unless a
  155. reasonable suspicion is established that such “violent confrontations and public safety
  156. emergencies” will take place.
  157.  
  158. In your deliberations and your proposal, please speak to this specific point, in order to
  159. protect Berkeley’s values in support of peaceful protest.
  160.  
  161. Chief Meehan recently alleged in a public meeting that police had information on
  162. February 18 that a group of demonstrators were planning to take over the University
  163. police department. By the terms of General Order C-1, intelligence gathering on
  164. Constitutionally protected First Amendment activity is limited to Open Sources, i.e., “any
  165. source of news or information that could normally be accessed by any member of the
  166. public.” Since multiple participants in the march at issue have strongly contested the
  167. allegation that any such incident was discussed, and no evidence has been publicly
  168. presented in its support, the PRC and the public are entitled to an explanation of the
  169. source of the allegation and of how it qualified as “reasonable suspicion.”
  170.  
  171. 4) Mutual Aid
  172.  
  173. We propose the following questions:
  174.  
  175. 3 http://www.ci.berkeley.ca.us/ContentDisplay.aspx?id=75618
  176.  
  177. How can Berkeley focus our mutual aid support for other jurisdictions on disaster
  178. relief and major crimes, and avoid participation in the suppression of non-violent civil
  179. disobedience as recently took place with the evictions of Occupy Oakland and Cal?
  180.  
  181. How can Berkeley ensure that officers from other jurisdictions operating in
  182. Berkeley, particularly in mutual aid events, act in accordance with our policing
  183. values?
  184.  
  185. What is the BPD's responsibility when it observes violations of laws by police
  186. officers in other jurisdictions, particularly when conducting joint activities?
  187.  
  188. 5) Jails/Immigration Detainers
  189.  
  190. Chief Meehan’s Feb. 14 letter references the Council resolution prohibiting City
  191. assistance to federal immigration law enforcement except as required by law. The
  192. Coalition has provided him with legal citations for the voluntary nature of the ICE civil
  193. immigration detainer request.
  194.  
  195. Is the BPD now prepared to support the proposal to create an exemption in policy J-
  196. 1, with reference to paragraph 139, for civil immigration detainers?
  197. Local law enforcement agencies have a legitimate interest in, and a historic tradition of
  198. viewing policing activities as distinctly separate from federal immigration enforcement.
  199. This is especially crucial in self-declared communities of refuge such as Berkeley. Public
  200. statements from law enforcement leaders carry great weight with public opinion and
  201. government leaders.
  202.  
  203. Will Chief Meehan also commit to publicly supporting the Trust Act?
  204.  
  205. Oakland police chief Howard Jordan publicly stated his support for the California Trust
  206. Act (AB 1081), recently re-introduced in the state legislature, authorizing localities to
  207. refuse cooperation with ICE civil detainers.
  208.  
  209. Will the Chief communicate to Alameda County Sheriff Ahern his request that Ahern
  210. cease turning over undocumented immigrants to ICE, as in the case of Pancho Ramos?
  211. Appendix:
  212.  
  213. BMC Chapter 2.04: City Council. Article 3: Agreements with Law Enforcement
  214. Agencies. Excerpts follow.
  215.  
  216. 2.04.150 Purpose of Provisions. “…Law enforcement activities and procedures within
  217. the City limits are a major matter of policy in the governance of the City. The general
  218. purpose of the ordinance codified in this article is to provide for the public disclosure
  219. and City Council approval of the terms and conditions of agreements, understandings,
  220. or policies reflecting such relationships, and for community involvement in the process
  221. of such approval, prior to the date on which the agreements, understandings or policies
  222. take effect and City funds are expended in implementation thereof. (Ord. 4640-NS § 1,
  223. 1973)
  224.  
  225. 2.04.160 Cancellation Required When—Funding Restrictions. “All agreements, letters
  226. or memoranda of understanding of policies which express terms and conditions of mutual
  227. aid, information sharing, cooperation and assistance, between the City and/or the
  228. Berkeley Police Department and all other local and state (including University of
  229. California Police Department, Alameda County Sheriff and California Highway Patrol)
  230. and federal law enforcement, military and/or intelligence agencies, police departments
  231. or private security organizations, are cancelled ninety days from April 17, 1973, unless
  232. approved by the City Council in accordance with Section 2.04.170 of this article. No
  233. funds of the City shall directly or indirectly be expended in implementation of any such
  234. agreement, understanding or policy unless the provisions of this article are complied with.
  235. (Ord. 4640-NS § 2, 1973)”
  236.  
  237. 2.04.170 Approval—Public Hearing Required. “After April 17, 1973, no such agreement,
  238. understanding or policy shall be valid or effective unless specifically approved by the
  239. City Council following public hearings on the same as hereinafter provided. All terms
  240. and conditions of such agreements, understanding or policies shall be reduced to writing
  241. and presented to the City Council for approval by the Berkeley Police Department or
  242. appropriate City official, accompanied by a statement of the rationale therefor,
  243. projections of the costs of implementation, and other information or explanations
  244. requested by the council. (Ord. 4640-NS § 3, 1973)”
  245.  
  246. 2.04.190 Period of Validity—renewal. “No such agreement, understanding or policy
  247. shall be valid or effective for more than one year following City Council approval, but
  248. each may be renewed or extended following the disclosure, public hearing and
  249. documentation procedures provided for in Sections 2.04.170 and 2.04.180 of this article.
  250. (Ord. 4640-NS § 5, 1973)”
  251. (Emphasis added.)
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