Last Night, First Right Police Surveillance of First Amendment Activity Synopsis

There is tension between the competing priorities of law enforcement's responsibility to ensure public safety while protecting constitutional rights of free speech and free assembly. 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. Santa Cruz Police Departmental Directive Section 610, p. 1, July, 2006. S.C. Police Directive, p. 1. S.C. Police Directive, p. 2. S.C. Police Directive, p. 3. Last Night, First Right - 27 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. Response: The Santa Cruz Police Department AGREES. Response from the Capitola Police Department: The Capitola Police Department has insufficient information upon which to base an opinion in this matter. However, what we can comment on is that the Capitola Police Department and its members have not engaged in a conspiratorial fashion, as an agency or in partnership with other law enforcement agencies, to squelch the civil rights of any citizen of Capitola or Santa Cruz County. Response: The Scotts Valley Police Department AGREES. Response: The Santa Cruz County Sheriff's Office DISAGREES. Since the Sheriff has no personal knowledge on this point, he is unable to agree or partially disagree with it. Response from the Watsonville Police Department: We find it impossible to comment on what some people assume. We are not, have not ever, conspired to squelch civil rights.

In addition to the police surveillance conducted by the Santa Cruz Police Department, there have been reports of law enforcement conducting surveillance of events that have subsequently been determined to be First Amendment-related activities in other areas across the country. 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. Response: The Santa Cruz Police Department PARTIALLY AGREES. Our agency was made aware of these events as with all other members of the public: via the media. We cannot definitively say what was done by 12 UC Santa Cruz Message from the Chancellor, Dec. 28, 2005. - 28 Last Night, First Right another agency in monitoring the event or what the rationale for such monitoring was used. Response from the Capitola Police Department: The Capitola Police Department did not have any role in this particular incident and no further basis upon which to comment on this matter. However, it is important to note that in the past, military recruiters have been threatened and assaulted in various forums throughout the United States. Thus, it is reasonable for the government and law enforcement entities to conduct some reasonable level of threat assessment and intelligence gathering before placing recruiters and other employees in harms way. Response: The Scotts Valley Police Department PARTIALLY AGREES. We only know what was reported in various media accounts and are not privy to what actions the Defense Department may or may not have taken. Response: The Santa Cruz County Sheriff's Office PARTIALLY AGREES. The Sheriff agrees with the first sentence and disagrees with the second sentence because he has no personal knowledge or verification on these points that would allow him to agree or partially disagree. Response from the Watsonville Police Department: There seems to be no question to be answered. We have no information to respond to the jury’s statement. 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 Response: The Santa Cruz Police Department PARTIALLY AGREES. The department is not able to confirm that such monitoring took place and does not have any specific information readily available that verifies such claims. Response: The Capitola Police Department AGREES. The Capitola Police Department agrees. Monitoring of First Amendment- protected activities is certainly not limited to the cities mentioned in the Grand Jury Report and likely has taken place for many years. Likewise, monitoring of First Amendment-protected activities if done correctly, for the right reasons, to include either “probable cause” or “a reasonable suspicion” of criminal activity associated with a First Amendment- protected activity is generally in compliance with the law and often assures and protects public safety. ACLU-NC report, “The State of Surveillance,” pp. 12-19, July 2006. Last Night, First Right - 29 Response: The Scotts Valley Police Department PARTIALLY AGREES. We have seen this reported in ACLU documents and some media sources but have not confirmed their veracity nor context. Response: The Santa Cruz County Sheriff's Office DISAGREES. The Sheriff has no personal knowledge on this point that would allow him to agree or partially disagree with them, and this statement appears to be a quote from a publication. Response from the Watsonville Police Department: There seems to be no question to be answered. We have no information to respond to the jury’s statement. 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.

Parade organizers broke the law, but there is no evidence that the organizers posed a serious threat to public safety. 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.

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. Response: The Santa Cruz Police Department PARTIALLY AGREES. However, there is a recent Ninth Circuit Court case that addresses many of these issues raised. - 30 Last Night, First Right Response: The Capitola Police Department DISAGREES. In today’s litigious society, where lawsuits and public records act requests often overwhelm public agencies, access to public records and information retained by the government is at an all time high. Likewise, challenges to local, state and federal agencies Intelligence Gathering and Criminal Intelligence Guidelines are also undergoing close scrutiny and substantial revision at all levels of government. The laws governing intelligence and criminal intelligence file guidelines are contained and distributed by the California Peace Officers Association, Criminal Intelligence Standards and Guidelines manual dated July 2003; the State of California Attorney General’s Office; U.S. Department of Justice, Criminal Intelligence Systems Operating Policies for 28 CFR Part 23 Compliance. There are numerous publications available to local law enforcement agencies, which routinely discuss the law and case precedence established by current cases relative to constitutionally protected rights, to include First Amendment-protected activities. Response: The Scotts Valley Police Department PARTIALLY AGREES. We have not conducted independent research to corroborate this finding. Response: The Santa Cruz County Sheriff's Office DISAGREES. The Sheriff has no personal knowledge on these points that would allow him to agree or partially disagree with them. Response: The Watsonville Police Department DISAGREES. In today’s litigious society, where lawsuits and public records act requests often overwhelm public agencies, access to public records and information retained by the government is at an all time high. Likewise, challenges to local, state, and federal agencies Intelligence Gathering and Criminal Intelligence Guidelines are also undergoing close scrutiny and substantial revision at all levels of government. The laws governing intelligence and criminal intelligence file guidelines are contained and distributed by the California Police Officers Association, Criminal Intelligence Standards and Guidelines manual dated July 2003; the State of California Attorney General’s Office; U.S. Department of Justice, Criminal Intelligence Systems Operating Policies for 28 CFR Part 23 Compliance. There are numerous publications available to local law enforcement agencies, which routinely discuss the law and case precedence established by current cases relative to constitutionally protected rights, to include First Amendment-protected activities. 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. Response: The Capitola Police Department PARTIALLY AGREES. The Capitola Police Department has reviewed the referenced report and Last Night, First Right - 31 guidelines. To better understand the recommended policies and procedures contained in the manual, along with the contemporary issues of: Criminal Intelligence Guidelines and the Criminal Intelligence System, the Capitola Police Department has elected to send all command officers to the Criminal Intelligence for Executives Course. This course is taught by staff from the California Attorney General’s Office, along with featured guest speakers. The structure of the course and the information provided helps executives and police command staff better understand the importance of both an effective and legal intelligence gathering process. Response: The Scotts Valley Police Department AGREES. Response: The Santa Cruz County Sheriff's Office PARTIALLY AGREES. The Sheriff agrees that the Attorney General issued this report but disagrees that local law enforcement agencies have found it difficult to interpret as he has no personal knowledge that would allow him to agree or partially disagree with this statement. Response: The City of Santa Cruz PARTIALLY DISAGREES. The 2003 report as issued by the Attorney General attempts to provide a framework for collection, analysis, and storage of criminal intelligence information. The report provides a series of recommendations culled from previous commissions and studies that emphasize standardization, accuracy, and information sharing between agencies. From the standpoint of the Santa Cruz Police Department, such information is only obtained on active criminal investigations, generally gang cases, and the information is purged pursuant to mandated purge criteria. The Santa Cruz Police Department already participates in countywide standardized information systems and accesses state databases that hold criminal intelligence information. The department does not maintain non-criminal information files on individuals. The report does not appear to focus on First Amendment activities and does not appear specifically germane to the Last Night event. Response: The Watsonville Police Department AGREES. 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. Response: The Santa Cruz Police Department PARTIALLY AGREES. Our agency queried the entire California Chief’s listserve to determine if other California agencies had such a policy and received no affirmative response. Through basic research it was determined that very few agencies had such a policy. However, we are unsure if the two agencies listed in the above finding are the only other two agencies nationwide. - 32 Last Night, First Right Response from the Capitola Police Department: The Capitola Police Department has insufficient information upon which to base an opinion, or response, as we have not independently contacted all police agencies in the entire country regarding this matter. However, in reviewing numerous intelligence and surveillance policies from around the state, it is readily apparent that most agencies require either a “reasonable suspicion” or “probable cause” that criminal activity may be planned or exists, before authorizing either a police surveillance or a criminal intelligence gathering operation. This standard is consistent with the recommendations made by Robert Aaronson, Independent Police auditor, contained on of this report and may explain why other agencies may have previously been silent on First Amendment-protected activity. Generally, the Constitutional protections referenced as First Amendments activities are incongruous with an individual or individuals violating the law and hiding behind the cloak of Free Speech or other alleged protections. Response: The Scotts Valley Police Department DISAGREES. We cannot agree with this finding absent independent research and verification. Response: The Santa Cruz County Sheriff's Office DISAGREES. The Sheriff has no personal knowledge on this point that would allow him to agree or partially disagree with it. Response from the Watsonville Police Department: There seems to be no question to be answered. We take the jury’s word for Washington, D.C. and San Francisco Police Department having policies. 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. Response: The Santa Cruz Police Department PARTIALLY AGREES. While the agency agrees that First Amendment issues are covered in the policy academy, the department now expects all of our officers to adhere to the new internal policy. Response: The Capitola Police Department DISAGREES. As previously stated, the Chief of Police and all Command Officers attend the State sponsored Criminal Intelligence for Executives Course and receive instruction on both State and Federal guidelines concerning Criminal Intelligence and Intelligence File Guidelines. Likewise, all uniformed and investigative staff receive regular updates and review operational orders concerning all planned protests, demonstrations and labor management incidents, as it relates to the Constitutional rights of those persons involved in protected free speech activity. Additionally, Capitola Police Department Incident Commanders are required by policy and practice to coordinate operations, to the degree possible, with Last Night, First Right - 33 demonstration and free speech organizers and participants, to insure the rights of demonstrators are protected and balanced in contrast to public safety concerns and private property rights. I refer the Grand Jury to the Governor’s Office of Emergency Services, Law Enforcement Branch, Information Bulletin, dated March 12, 2003, entitled: Potential Military Action in the Middle East: Law Enforcement Planning Issues. I further direct the Grand Jury’s attention to page two of that document, which states: “To reiterate, lawful First Amendment speech and protest activity must be respected and protected.” Similar instructions are regularly discussed and incorporated into pre-incident briefings with all staff assigned to the Capitola Police Department. Response: The Scotts Valley Police Department PARTIALLY AGREES. Academy curriculum includes general constitutional instruction. We cannot speak to what additional training independent police agencies provide their officers. Response: The Santa Cruz County Sheriff's Office AGREES. The Sheriff agrees as it relates to the Santa Cruz County Sheriff's Office only. Response: The Watsonville Police Department PARTIALLY AGREES. All Peace Officers get continual training. Some of that training deals with the First Amendment, mostly as it relates to picketing, protests, sit-ins, etc. The Santa Cruz District Attorney has two attorneys assigned to assist agencies in such matters. 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. Response: The Santa Cruz Police Department AGREES. At the time of implementation the department was the only in the county (and one of the few in the state) to have adopted such a policy. Response: The Capitola Police Department PARTIALLY AGREES. The City of Capitola shares the same City Attorney as the City of Santa Cruz. As such, the City Attorney is reviewing our current policy as it applies to surveillance and criminal intelligence guidelines, files and surveillance operations. The review should be completed and submitted to the Police Department within the next month and the policy should be adopted and implemented shortly thereafter. However, the department currently appears to meets industry standards, having received training in the State of California, Department of Justice and the U.S.Department of Justice standards as they apply to Criminal Intelligence Gathering and Surveillance operations. - 34 Last Night, First Right Response: The Scotts Valley Police Department PARTIALLY AGREES. Scotts Valley Police is drafting a policy similar to Santa Cruz Police. We cannot speak to what other local agencies have in regards to such policies. Response: The Santa Cruz County Sheriff's Office PARTIALLY AGREES. The Sheriff partially agrees with the first sentence as it relates to the Santa Cruz County Sheriff's Office only and disagrees with the second statement because he has no personal knowledge that would allow him to agree or partially disagree with that point. Response from the Watsonville Police Department: Our policy in this area is guided by case law and advice of District Attorney’s staff. Our policies are currently being changed and updated through a company of lawyers. 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.

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. Response: The Santa Cruz Police Department AGREES. Response from the Capitola Police Department: The Capitola Police Department agrees that the Santa Cruz Police Department has created a new policy by adopting Departmental Directive, Section 610. Response: The Scotts Valley Police Department AGREES. Response: The Santa Cruz County Sheriff's Office PARTIALLY AGREES. The Sheriff has heard that the Santa Cruz Police Department has adopted some changes to their policies but has not seen these changes. Response: The Watsonville Police Department AGREES. 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. Response from the Capitola Police Department: The Capitola Police Department agrees that the City of Santa Cruz Last Night, First Right - 35 employs an independent police auditor and has not further comment on the matter. Response: The Scotts Valley Police Department AGREES. Response: The Santa Cruz County Sheriff's Office AGREES. Response: The Watsonville Police Department AGREES. 5.2 No other law enforcement agencies in Santa Cruz County employ an independent police auditor as the City of Santa Cruz does. Response: The Capitola Police Department AGREES. Response: The Scotts Valley Police Department PARTIALLY AGREES. We have not verified this finding. Response: The Santa Cruz County Sheriff's Office AGREES. Response: The Watsonville Police Department AGREES. 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. Response: The Capitola Police Department AGREES. Response: The Scotts Valley Police Department AGREES. Response: The Santa Cruz County Sheriff's Office DISAGREES. The Sheriff has no personal knowledge on this point that would allow him to agree or partially disagree with it. Response: The Watsonville Police Department AGREES. 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. Response: The Santa Cruz Police Department AGREES. Response: The Capitola Police Department AGREES. Response: The Scotts Valley Police Department AGREES. Response: The Santa Cruz County Sheriff's Office DISAGREES. The Sheriff has no personal knowledge on this point and has not viewed the Santa Cruz Police Department Directive Section 610. Response: The City of Santa Cruz AGREES. - 36 Last Night, First Right Response from the Watsonville Police Department: We cannot agree or disagree. We have not read Santa Cruz Police Department Directive Section 610. 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. Response: The Santa Cruz Police Department PARTIALLY AGREES. The directive specifically applies to potential criminal activity. Response: The Capitola Police Department AGREES. Response: The Scotts Valley Police Department AGREES. Response: The Santa Cruz County Sheriff's Office DISAGREES. The Sheriff has no personal knowledge on this point and has not viewed the Santa Cruz Police Department Directive Section 610. Response from the Watsonville Police Department: Watsonville Police Department takes the jury’s word for it. 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. Response: The Santa Cruz Police Department PARTIALLY AGREES. The policy as adopted by the Santa Cruz Police Department addresses the monitoring of First Amendment activities. It does not, however, specifically outline post-event investigations as implied by the above finding. Response: The Capitola Police Department AGREES. Response: The Scotts Valley Police Department AGREES. Response: The Santa Cruz County Sheriff's Office DISAGREES. The Sheriff has no personal knowledge as to Santa Cruz Police Department’s new policy regarding surveillance of “political activities.” Response: The City of Santa Cruz PARTIALLY AGREES. The policy as adopted by the Santa Cruz Police Department addresses the monitoring of First Amendment activities. It does not, however, 14 ACLU, pp. 26-30. Last Night, First Right - 37 specifically outline post-event investigations as implied by the above finding. Response from the Watsonville Police Department: Watsonville Police Department takes the jury’s word for it. 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. Response: The Santa Cruz Police Department AGREES. Our agency complied with requests for information and participated in the capacity requested by the Public Safety Committee and City Manager. The

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.

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.

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. Last Night, First Right - 39

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.

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.

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.

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.

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.

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.

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.

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.

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. - 40 Last Night, First Right