Last Night, First Right
Police Surveillance of First Amendment
Activity
In this post-9/11
era, it can be particularly difficult for law enforcement to find the proper
balance between protecting the public and upholding our constitutional rights
of freedom of speech and assembly. A case in point is the controversy that
arose over the Santa Cruz Police Department's undercover surveillance of the
planning by a citizen group for a New Year's Eve parade in December 2005. This
investigation was conducted as a result of that incident and subsequent police
department follow-up.
Parade organizers
and other members of the public have questioned the need for the Santa Cruz
Police Department’s undercover surveillance of the planning for this event and
have raised questions about the police department’s review of the operation.
However, the process ultimately worked out to the benefit of both residents and
law enforcement. The city’s independent police auditor conducted a thorough and
balanced report of the surveillance operation and the thinking behind it. That
opened a community dialogue on the issue of surveillance of groups involved in
political speech and activity, which, in turn, led to the adoption by the
police department of new rules to govern these types of investigations in the
future.
In October 2005,
officers with the Santa Cruz Police Department (SCPD) learned that a group of
people were meeting to plan a New Year’s Eve parade in downtown Santa Cruz on
Dec. 31, 2005. The group intended to hold an event titled, “The Last Night
Santa Cruz DIY (Do It Yourself) Parade.” The event was to be “a decentralized,
collective, spontaneous, open, public New Year's Eve celebration in Santa
Cruz.”[1]
For several years
prior to New Year's Eve 2005, the City of Santa Cruz had officially sanctioned
a "First Night" party whose organizers sought, paid for and received
city permits, which allowed street closures, music, booths and increased police
presence at the event. However, First Night was disbanded after the New Year's
Eve 2004 event, and no city-authorized event was planned for New Year's Eve
2005. Organizers of the 2005 DIY parade did not apply for a parade permit
because they neither wanted nor sought city involvement or approval. In
addition to throwing a party, part of the purpose behind the event was to
“reclaim”[2]
the streets for the public by intentionally not involving city officials or
police in the planning of or approval for the event and, in so doing they
believed they were making a statement about the need to preserve individuals'
rights of self-control and self-governance.
When Santa Cruz
police officers learned of the planning for the event in late October 2005,
they briefly reviewed a “Last Night Santa Cruz DIY Parade” web site that was
being used by the organizers to spread
information about the upcoming event. Members of the Police
Department, based on their experience with some previous public events downtown
that got out of control, became concerned that such an uncontrolled event might
cause a public safety traffic hazard or that people attending might become
rowdy and dangerous. A decision was made to send two undercover police officers
to the DIY Last Night group’s planning meeting on Oct. 29, 2005, to learn more
about the event that was being planned and the people who were planning it. Two
officers attended the meeting in plain clothes and gave false names when they
identified themselves.
The two officers
who attended the meeting were later recognized and identified by DIY parade
organizers. In the days leading up to the New Year’s Eve DIY Last Night parade,
organizers notified the Santa Cruz Sentinel that their meeting had been
attended by undercover police officers and the Sentinel reported the
story on Dec. 31, 2005.
In January 2006,
in the wake of public sentiment that the use of undercover police surveillance
amounted to a violation of the public’s right of free speech, the SCPD opened
an internal investigation of the DIY Last Night Parade surveillance. An
internal investigation was conducted by the police official who had authorized
the undercover operation. His investigation determined that no laws or police
policies had been violated by the operation.
In February 2006, the
Independent Police Auditor for the City of
·
The
undercover surveillance “more than likely ... violated the civil rights of the
parade organizers.”[3]
·
A
permitless parade is a violation of the law, but it does not constitute much of
a credible basis for intruding on anyone’s civil rights.[4]
·
Police
failed to recognize that the parade was intended as a form of civil
disobedience and constituted political speech which should have prompted a
higher level of scrutiny within the department of the validity of the
undercover operation. 5
·
The
department was obligated to attempt to collect information about the planned
event, not to prevent it but to be in a position to respond to it as it
unfolded.[5]
·
The
(Police) Department and its employees were entirely well-intentioned and acted
without any recognition of how close the constitutional line was.[6]
·
Neither
Santa Cruz nor the vast majority of other law enforcement agencies, large or
small, have explicit policies which adequately deal with this issue.[7]
In June 2006,
following consultation with the Santa Cruz City Attorney, the City Council’s
Public Safety Committee and a representative of the American Civil Liberties
Union, the Santa Cruz Police Department adopted Departmental Directive, Section
610, Undercover Operations–First Amendment Activity. The policy spells out the
conditions necessary for the police department to initiate undercover operations
of entities or activities that may be protected under the First Amendment of
the U.S. Constitution. In considering whether to allow an undercover operation,
and in reviewing it while it is ongoing and after it has concluded, the policy
requires that:
·
There
be “reasonable suspicion to believe that the subject of the investigation is
planning criminal activity.”[8]
·
The
Police Department first attempt “direct and open communication”[9]
with the subject, as well as less-intrusive investigatory techniques like reviewing
information on the Internet, before resorting to undercover operations.
·
The
police chief authorize all undercover operations of events that may fall under
First Amendment activities, and that the city attorney also review the reasons
for undertaking the investigation.[10]
·
The
city annually issue a public report outlining how many First Amendment activity
undercover operations were sought, how many were approved, and how many were
denied, and if the city’s independent police auditor believes any investigations
violated the policy.[11]
This investigation
originated as a review of the Santa Cruz Police Department’s undercover police
surveillance of the parade planning activities, its subsequent investigation of
that undercover surveillance, and its response. The investigation also
incorporated a review of other law enforcement agencies in Santa Cruz County
and their policies regarding undercover surveillance of activities that could
be reasonably claimed as protected by the First Amendment and any policies
directing such surveillance.
1.1
Worldwide
reports of terrorism, 9/11 and enactment of the U.S. Patriot Act have
heightened public sensitivity toward criminal activity on every level, from the
lowest local infraction to the most serious national acts. Similarly, the
public’s sensitivity to and awareness of incursions into constitutionally
protected freedom of speech and freedom of assembly is also heightened.
Previous holiday-oriented gatherings downtown Santa Cruz had resulted in
significant property damage and serious personal injury.
1.2 The officers involved in the undercover
operation did not consider the political aims of the group they investigated,
focusing instead on the public safety ramifications of the Last Night Parade.
1.3 Some Santa Cruz residents were eager to
jump to the conclusion that the Last Night Santa Cruz DIY Parade surveillance
was part of a larger conspiracy to squelch civil rights.
2.1
In
April 2005, students at the University of California, Santa Cruz, protested
military recruiters’ attendance at an on-campus career fair. It was learned
eight months later that the Pentagon had classified the student protest as a
“credible threat”[12]
and Defense Department representatives had conducted undercover
monitoring of the event.
2.2
Monitoring
of First Amendment-protected activities in recent years has occurred in
Oakland, Fresno, Contra Costa County, San Francisco and New York City.[13]
2.3
No
evidence has been found that the Santa Cruz Police Department or other Santa
Cruz County law enforcement agencies have engaged in undercover surveillance of
First Amendment-protected political activity in recent years beyond the Last
Night DIY parade.
3.1
By
publicly stating they did not intend to apply for a parade permit, the Last
Night DIY organizers knowingly intended to break the law. The law broken was an
infraction, the lowest level of violation, generally indicative of not being of
a serious or threatening nature.
3.2
On
New Year’s Eve 2005, the Last Night Santa Cruz DIY Parade was held as planned,
and no major problems were reported.
3.3
Following
the direction of its new First Amendment policy, a city official contacted
organizers of the Dec. 31, 2006, New Year’s Eve’s parade prior to the event and
attempted to convince them to apply for a free Noncommercial Event permit.
Organizers declined, and the police department did not pursue the matter
further. A second Last Night Santa Cruz DIY Parade was held on Dec. 31, 2006,
at which no serious problems were reported.
4. There were no clear policies in place in
Santa Cruz in 2005 to provide guidance for this type of surveillance.
4.1 There is little recent case law
establishing what is permissible and what is not permissible in the area of
police undercover surveillance of First Amendment-protected activities. Much of
the case law that guides undercover infiltration of free speech groups dates to
the 1960s and 1970s and is not entirely applicable to the civil rights and law
enforcement issues that predominate in the post-9/11 world.
4.2 The office of the California Attorney
General in 2003 issued a report that provided a summary of state law regarding
police intelligence collection operations titled “Criminal Intelligence
Systems: A California Perspective,” but local law enforcement have found it
difficult to interpret.
4.3 Prior to adoption of a new policy by the
Santa Cruz Police Department regarding undercover operations of First
Amendment-protected activities, only two cities, San Francisco and Washington,
D.C., had explicit policies defining when and under what circumstances police
may engage in undercover investigation of First Amendment-protected activities.
4.4 Police officers receive minimal training
in First Amendment and free-speech issues, usually prior to becoming an officer
while they are in the police academy.
4.5 None of the other local law enforcement
agencies in Santa Cruz County have a policy in place regarding undercover
surveillance of First Amendment activities. The Scott's Valley Police Department is reviewing its policies regarding surveillance and anticipates adopting changes this
summer.
4.6 The police official who authorized the
undercover operation was also the one who conducted the department’s internal
investigation.
4.7 The Santa Cruz Police Department was
reluctant to address the issue to the public’s satisfaction. What was and was
not released to the public was also complicated by state-mandated limitations
upon what can be legally disclosed regarding police personnel matters, not by
obfuscation by the police department.
5. In the wake of the surveillance incident, the
Santa Cruz Police Department has created new policies to guide it in the future
when balancing public safety and constitutional protections for free speech and
assembly.
5.1
The
City of Santa Cruz employs an independent police auditor, who reports to the
city manager, not the police department. He reviews internal affairs investigations
for accuracy and thoroughness.
5.2
No
other law enforcement agencies in Santa Cruz County employ an independent
police auditor as the City of Santa Cruz does.
5.3
The
Santa Cruz City Council empowers a subcommittee of three council members to act
as a Public Safety Committee and review police issues that come before the
city, adding another layer of scrutiny of police actions beyond the independent
auditor.
5.4
Santa
Cruz Police Departmental Directive Section 610 establishes a minimum threshold
of “reasonable suspicion” of anticipated criminal activity before police can
initiate undercover surveillance of First Amendment-protected activity.
However, there is no simple all-encompassing definition of what constitutes
reasonable suspicion; it will be considered on a case-by-case basis.
5.5
The
new Santa Cruz Police Departmental Directive Section 610 establishes a clear
chain of command that includes the chief of police that must be followed in
authorizing such undercover operations. Both the chief of police and the Santa
Cruz city attorney must now review proposed undercover surveillance of First
Amendment-protected activity.
5.6
Several
sections of the Santa Cruz Police Department’s new policy regarding
surveillance of political activities are now cited as “Best Practices
Guidelines for First Amendment Activities,”[14]
including acknowledgement of citizens’ rights afforded under the U.S.
Constitution; the chain of command to be followed in deciding whether to
initiate a surveillance operation of political activity; and what police
officers can and cannot do when investigating protected claims of political
activity.
5.7
The
Santa Cruz City Council Public Safety Committee has requested further review of
the new policy regarding surveillance of First Amendment-protected activities by
the city manager with regard to five additional points the American Civil
Liberties Union of Northern California, recommends be included in the policy.
The ACLU recommends that the new policy be expanded to add these protections:
Add a reference to the California Constitution's Right of Privacy; narrow the
scope of “reasonable suspicion” in determining when undercover operations may
be allowed; clarify the meaning of less intrusive tactics in the new policy;
add guidance regarding video surveillance; and expand provisions for auditing
and reporting of undercover operations.
1.
Every
city has its own character which may influence where the appropriate balance
lies between protecting free speech and guarding against possible threats of
criminal acts, particularly in a post 9/11 world. The orientation of residents
in the cities of Santa Cruz, Capitola, Watsonville, Scotts Valley, and the
unincorporated areas of the county vis-à-vis police are unique to each
municipality. But overlaying every community’s consideration of this issue are
the protections provided in the First Amendment of the United States
Constitution: “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances.”
2.
The
fluid nature of interpretation of the First Amendment, and the lag time between
shifts in public attitudes and the creation of new case law, make it difficult
for police departments to create policies that are specific enough to
anticipate every possible scenario and provide police officers with definitive
guidelines as to whether a particular form of surveillance is proper.
3.
Undercover
surveillance is an important and legitimate tool in the investigation of gangs,
drug violations and a host of other criminal activities.
4.
The
organizers of the Last Night Santa Cruz DIY Parade did not pose a threat or
hazard to public welfare.
5.
The
likelihood of this type of scenario repeating itself appears slight due to the
exposure this incident received. Other Santa Cruz County law enforcement
agencies should learn from the Santa Cruz Police Department’s experience.
Having an established policy in place to guide such investigations could
prevent other law enforcement agencies from facing the same exposure. Also, an
established policy could provide law enforcement agencies with a positive
public relations tool to show that the department is trying to anticipate
problems. However, it is important to recognize that the relationship between a
city’s residents and its police department varies from city to city, and there
is no “one size fits all” solution that will work for every law enforcement
agency.
6.
Police
were not out of line in viewing the Last Night DIY Santa Cruz Parade as a
potential threat to public safety, given the history of stabbings and violence
at previous downtown events. The parade’s organizers did not intend to cause
property damage or personal injury, but large gatherings where people consume
alcohol can create dangerous situations which are unanticipated by those
planning the event.
7.
The
absence of police policy in the area of surveillance of politically protected
speech and activity suggests that police are involved with more immediate
public safety issues and that the Last Night Santa Cruz DIY Parade surveillance
was an anomaly rather than “the tip of the iceberg” of wider police
surveillance.
8.
The
rightness or wrongness of the Last Night Santa Cruz DIY Parade investigation
hinges upon interpretations of law and competing priorities upon which
reasonable people on both sides of the issue differ.
9.
Not
considering the political element inherent in the Last Night DIY Santa Cruz
Parade hampered police from recognizing potential free speech and First
Amendment issues that may have caused them to reconsider the necessity of the
undercover operation.
10. Police officers working the streets must
navigate a complex web of directives and guidelines in the performance of their
duties and are responsible for upholding a wide array of laws. It is the
responsibility of police department management to be aware of these
developments so that when a situation arises, they can correctly advise their
officers how to proceed.
11. The adoption of Santa Cruz Police
Departmental Directive Section 610 and the exposure that police handling of the
Last Night Santa Cruz DIY Parade received makes it unlikely that undercover
operations of First Amendment-protected activities will be undertaken in the
future without more extensive advance scrutiny.
12. Although the Santa Cruz Police Department
conducted its own internal investigation, the independence of the investigation
was compromised by the fact that the police official who conducted the internal
investigation was also the police official who authorized the undercover
operation causing suspicion of the findings by some members of the public.
13. The report issued by the city’s
independent auditor served a useful role and aided in preventing further
deterioration of the relationship between the Santa Cruz Police Department and
residents. The report enabled residents and the police department to come
together in the wake of the controversy to try and find some mutually
acceptable common ground.
14. The Santa Cruz Police Department’s
adoption of Departmental Directive Section 610 puts it ahead of almost all
other cities in the state and the nation in addressing the potential legalities
surrounding this type of investigation.
15. The Santa Cruz Police Departmental
Directive Section 610 is a step forward in spelling out under what conditions
undercover surveillance of First Amendment activity may occur.
16. The more straightforward and less legally
complicated Santa Cruz Police Departmental Directive Section 610 is kept, the
more likely it is to be understood and adhered to.
17. Citizens often interact only with their
police department when something bad happens—they receive a traffic citation,
are stopped for drunk driving, are told they cannot do something—creating a
skewed view of police by some of the public, and of the public by some of the
police.
2. Law enforcement must be cognizant of the
wide range of activities that fall under the umbrella of the First Amendment
when considering surveillance operations.
3. Every law enforcement agency in the
county should establish procedures, tailored within constitutional limitations
to meet their own unique identities, for authorizing surveillance of groups or
individuals that may be protected under the First Amendment. Any such approved
surveillance operations should establish a clear chain of command for
authorizing such surveillance and include provisions for review by the chief of
police and legal counsel.
4. The City of Santa Cruz should carefully
weigh recommendations by the American Civil Liberties Union (ACLU) that Santa
Cruz Police Departmental Directive Section 610 be expanded against the
desirability of keeping Departmental Directive Section 610 simple and easily
understood.
5. The cities of Watsonville, Capitola and
Scotts Valley, and the Santa Cruz County Sheriff’s Department should consider
contracting with an independent auditor who is not employed by the police
department to review those grievances by the public that cannot be
satisfactorily resolved within each department’s internal affairs unit.
6. People taking part in protests and other
public activities that claim protection under the First Amendment must
recognize the potential for events to spin out of their control, and for
criminal elements to attach themselves to those events, creating real public
safety problems that police must address.
7. Residents should take advantage of
community outreach programs provided by police departments, including
ride-alongs, neighborhood watch programs, and jail tours. These provide
opportunities to get to know how police work in non-emergency situations and
can foster a positive rapport that will facilitate mutual trust between the
public and law enforcement.
1. The organizers of Last Night Santa Cruz
for holding a peaceful event each of the past two New Year's Eves.
2. The City of Santa Cruz for employing an
independent police auditor.
3. The Independent Police Auditor for
conducting a thorough investigation.
4. The Santa Cruz Police Department for
taking corrective action and being among the first municipalities in the nation
to develop such a policy.
Entity
|
Findings
|
Recommendations
|
Respond Within
|
|
City
of Santa Cruz Police Department |
1.3,
2.1, 2.2, 4.1, 4.3-4.5, 5, 5.4-5.8 |
1-4 |
60
days September 1, 2007 |
|
City
of Capitola Police Department |
1.3,
2.1, 2.2, 4.1, 4.2, 4.3-4.5, 5, 5.1-5.8 |
1-3,
5 |
60
days September 1, 2007 |
|
City
of Watsonville Police Department |
1.3,
2.1, 2.2, 4.1, 4.2, 4.3-4.5, 5, 5.1-5.8 |
1-3,
5 |
60
days September 1, 2007 |
|
City
of Scotts Valley Police Department |
1.3,
2.1, 2.2, 4.1, 4.2, 4.3-4.5, 5, 5.1-5.8 |
1-3,
5 |
60
days September 1, 2007 |
|
Santa
Cruz County Sheriff-Coroner |
1.3,
2.1, 2.2, 4.1, 4.2, 4.3-4.5, 5, 5.1-5.8 |
1-3,
5 |
60
days September 1, 2007 |
|
Santa
Cruz City Council |
4.2,
5.4, 5.6-5.8 |
4 |
60
days September 1, 2007 |
Documents
Aaronson, Robert H., City of
Santa Cruz, Independent Police Auditor, report to Richard Wilson, Santa Cruz
city manager, March 20, 2006.
Criminal Intelligence
Systems: A California Perspective, Office of the Attorney General of California,
October 2003.
Code of Federal Regulations,
Title 28, Part 23, Criminal Intelligence Systems Operating Policies
Schlossberg, Mark, Police
Practices Policy Director, American Civil Liberties Union of Northern
California, Letter to Santa Cruz City Council, March 2006.
Schlossberg, Mark, Police
Practices Policy Director, American Civil Liberties Union of Northern
California, The State of Surveillance: Government Monitoring of Political
Activity in Northern & Central California, July 2006.
Schlossberg, Mark, Police
Practices Policy Director, American Civil Liberties Union of Northern
California, Letter to Santa Cruz City Council, July 2006.
Santa Cruz Police
Departmental Directive, Section 610, Undercover Operations—First Amendment
Activity, February 2006.
Santa Cruz Police
Departmental Directive, Section 610, Undercover Operations—First Amendment
Activity, revised July 2006.
Thompson, A.C., San Francisco
Weekly, Cops Who Spy, Sept. 27, 2006.
Web sites
The Last Night Santa Cruz DIY
Parade, http://www.seedwiki.com/wiki/last_night_diy.
The Last Night Santa Cruz DIY
Parade online discussion group, http://lists.riseup.net/www/arc/lastnightdiy.
Santa Cruz Sentinel – Online
Edition, www.santacruzsentinel.com.
University of California,
Santa Cruz, online News/Events, http://messages.ucsc.edu/05-06/12-28.response.asp.
San Francisco Chronicle, http://www.sfgate.com/, Associated Press story,
"Jury: WTO protesters’ rights violated," Jan. 30, 2007.
New York Times, http://www.nytimes.com, "Judge Restricts New
York Police Surveillance," Feb. 15, 2007, and "Mayor Defends Spying
by Police Before G.O.P. Convention," March 28, 2007.
This page intentionally left blank.
[1] http://www.seedwiki.com/wiki/last_night_diy/manifesto, Last Night Santa Cruz DIY Parade Manifesto.
[2] DIY Parade Manifesto.
[3] Report by Robert H. Aaronson to Richard Wilson, Santa Cruz City Manager, p. 2, March 20, 2006.
[4] Aaronson, p. 31.
[5] Aaronson, p. 31.
[6] Aaronson, p. 33-34.
[7] Aaronson, p. 33.
[8] Santa Cruz Police Departmental Directive Section 610, p. 1, July, 2006.
[9] S.C. Police Directive, p. 1.
[10] S.C. Police Directive, p. 2.
[11] S.C. Police Directive, p. 3.
[12] UC Santa Cruz Message from the Chancellor, Dec. 28, 2005.
[13] ACLU-NC report, “The State of Surveillance,” pp. 12-19, July 2006.
[14] ACLU, pp. 26-30.