Santa Cruz County Grand Jury • 2005-2006

Police Surveillance of First Amendment Activity

Published: December 31, 2005 12 pages
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Findings 17 findings

F1
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. Similarly, the public’s sensitivity to and awareness of incursions into 8 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 - 21 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.
F2
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. 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.
F3
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 12 UC Santa Cruz Message from the Chancellor, Dec. 28, 2005. ACLU-NC report, “The State of Surveillance,” pp. 12-19, July 2006. - 22 Last Night, First Right Cruz DIY Parade was held on Dec. 31, 2006, at which no serious problems were reported.
F4
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.
F5
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. Last Night, First Right - 23 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. Conclusions
F6
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.
F7
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.
F8
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.
F9
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. Last Night, First Right - 25
F10
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.
F11
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.
F12
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.
F13
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.
F14
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.
F15
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.
F16
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.
F17
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.

Recommendations 7