Back to legislation introduced in Council period 15
Council of the District of Columbia
1350 Pennsylvania Ave. NW, Washington, D.C. 20004
To: All Councilmembers
PURPOSE AND EFFECTThis legislation follows a D.C. Council investigation of the Metropolitan Police Department handling of anti-war and anti-globalization demonstrations between 2000 and 2002. The investigation faulted MPD for violating the First Amendment and liberty rights of hundreds of demonstrators, and also uncovered police surveillance of political organization and concluded that MPD acted preemptively against demonstrators in an apparent effort to hamper the exercise of First Amendment rights. This legislation is intended to preclude preemptive actions by the police department by requiring a standard of "imminent likelihood" of lawbreaking before police can surround or otherwise disrupt an event; places limits on use of physical restraints by banning the use of wrist-to-ankle ties; and creates a process of checks and balances for occasions when the police investigate the activities of members of political organizations. This Act restricts use of police lines to encircle demonstrators unless mass arrests are warranted, a limit on police authority first proposed in litigation following the 1971 "May Day" demonstrations against the Vietnam war. The Act also requires MPD to promulgate consistent policies for issuing media passes. The legislation is presented as a response to and policy guidance for District of Columbia law enforcement based on the past record and the need for elected officials to clearly articulate the priorities for this jurisdiction. There is also a broader agenda: placing the District of Columbia on record affirming the importance of the exercise of First Amendment rights to free speech and freedom of assembly. Protecting against encroachment on civil liberties has taken on a deeper urgency as state, local and federal governments wrestle with protecting the public safety in the wake of the September 11, 2001, terrorist attacks. The Committee concurs with this statement by the District of Columbia Affairs Section of the D.C. Bar on this point:
Washington, D.C. is sometimes called the capital of the free world. If, as a free city, we strive to merit that title, our first efforts should be directed to earning a reputation as a community that welcomes and facilitates free speech and free speech assemblies. The action of the Committee and the Council to affirm the policies of our community and District Government in this regard are particularly important in that they must protect both citizens of the District and the tens of thousands of other Americans who come to Washington each year to petition their government for redress of grievances. While Bill 15-968 is useful in providing specific guidance to the District government and the Metropolitan Police Department (MPD) concerning the exercise of free speech rights, its primary importance is in its emphatic statement of the policies of the people of the District regarding First Amendment Rights. Whether due to the climate created by the present war on terror or other factors, misunderstandings concerning the rights and duties of citizens and of government authorities concerning First Amendment exercise have become pervasive. This legislation provides a timely and pointed correction. (emphasis added).The D.C. Affairs Section concluded its November 9, 2004, letter as follows: "Our Section frequently comments on District legislation and we often have good reason to express our appreciation for the insights and the hard work of both Councilmembers and staff which go into these bills. Even so, Bill 15-968 represents a special case, and requires our special recognition of the efforts of this Committee. Rights are more often lost by stealth than cataclysm; the work of this Committee has created an important bulwark against further leaching away of First Amendment rights in the District of Columbia." In addition to presenting this legislation as a statement of policy for the District of Columbia, the Committee also presents this as model legislation for consideration by other municipalities. While prompted by the Council investigation of the Metropolitan Police Department, the legislation also takes into account policies developed by state, local and federal government, and by organizations representing "best practices" in law enforcement. The legislation was drafted with the assistance of subject matter experts who served as consultants to the Committee: Richard Jerome and Mark Posner, who served in the Department of Justice, Civil Rights Division, with a particular focus on police practices, and Mary M. Cheh, professor of constitutional law at the George Washington School of Law.
July 13, 2004 Bill 15-968 is introduced by Councilmember Kathy Patterson and co-sponsored by Councilmembers Allen, Ambrose, Chavous, Evans, Fenty, Graham and Mendelson (Attachment A).
July 15, 2004 Bill 15-968 is referred to the Committee on the Judiciary.
July 23, 2004 Notice of introduction of Bill 15-968 is published in the D.C. Register (Attachment C).
August 6, 2004 Notice of Public Hearing on Bill 15-968 published in the D.C. Register (Attachment D).
October 7, 2004 The Committee on the Judiciary holds a Public Hearing on Bill 15-968.
December 1, 2004 Consideration and vote on Bill 15-968 by the Committee on the Judiciary.
IMPACT ON EXISTING LAWBill 15-968 enacts new law in the District of Columbia code; repeals 24 DCMR § 707.7; and amends D.C. Code § 5-1104(d) to give the Citizen Complaint Review Board the authority to monitor and evaluate police handling of First Amendment Assemblies.
SECTION BY SECTION ANALYSISSection 100 provides the long title of Bill 15-968 Title I concerns First Amendment Assemblies. Section 102 provides definitions of terms used in this title. The term "First Amendment assembly" is used to include any demonstration, rally, parade, march, picket line, or other assembly on District streets, sidewalks, or other public ways, or in a District park, conducted for the purpose of persons expressing their political, social or religious views. Section 103 sets forth the policy on First Amendment assemblies. Mirroring Constitutional requirements, this section states that it is District policy that persons and groups have the right to organize and participate in peaceful First Amendment activities near the object of their protest so that they may be seen and heard, subject solely to reasonable time, place and manner restrictions. Time, place, and manner restrictions may be imposed to protect public safety, as well as to accommodate the interest of persons not participating in the assemblies to use the streets, sidewalks and other public ways to travel to their intended destinations, and to use the parks for recreational purposes. Section 104 provides for enforcing reasonable restrictions during a First Amendment assembly, both for those assemblies where a permit was obtained and assemblies where a permit was not issued. Restrictions on an assembly cannot be based on the content of the speech or views expressed or anticipated to be expressed during the assembly, or on factors such as the attire or appearance of persons participating in or expected to participate in the assembly. Section 105 deals generally with First Amendment assembly permits. Subsection 105(a) makes clear that demonstrating without a permit is not an offense. Subsection 105(b) states that the purpose of the permit program is to avoid situations where more than one group seeks to use the same space at the same time and to provide MPD and other District agencies the ability to provide appropriate police protection, traffic control, and other support for participants and other individuals. Subsection 105(c) states that except for in the circumstances listed in §105(d), persons wishing to conduct a First Amendment assembly on a District street, sidewalk, other public way, or in a District park, shall obtain a permit. Subsection 105(d) exempts from the permit process assemblies with fewer than 50 persons, so long as the assembly will not occur on a District street. It also creates an exemption for demonstrations that occur entirely on sidewalks and crosswalks without impeding pedestrian traffic. Currently, organizers of most small assemblies do not apply for a permit, and organizers of such assemblies that contact the MPD are told that no permit is required so long as the assembly does not take place in a street and thus disrupt traffic. The proposed exemption reflects current practice as well as the fact that small assemblies that occur on a sidewalk or in a park typically require minimal police resources. The section also exempts from the permit requirement assemblies that represent an immediate response to a public event. Subsection 105(e) clarifies that user fees are not to be imposed for First Amendment assemblies. Subsection 105(f) provides that the Mayor may not require additional permits for delivering a speech or sermon on a District street, sidewalk, public way, or park. Subsection 105(g) states that persons wishing to use a stand or structure in connection with a First Amendment assembly must not be required to obtain an additional permit. Also, individuals assembling under subsection 105(c), which exempts certain situations from the permitting requirements, may use a stand or structure so long as it does not prevent others from using the sidewalk. Subsection 105(h) states that persons wishing to sell demonstration-related merchandise must not be required to obtain an additional permit to do so. Also, individuals assembling in situations exempted from the permitting process may sell demonstration-related merchandise, with the caveat that no person shall be authorized to sell merchandise in a permitted area contrary to the wishes of the permit holder. Section 106 codifies the current delegation of the permitting authority, specifying that the Chief of Police has the authority to review and approve permit applications for assemblies on District streets or sidewalks, or in District parks. No separate approval is necessary from other District agencies or governmental entities, such as the Emergency Management Agency or the Mayor’s Special Events Task Group. Subsection 106(b) requires that permit applications be acted upon in a reasonably prompt manner. Permit applications filed 60 or more days before an event must receive final action no later than 30 days before the event, with leave for reasonable modifications based on public safety and in consultation with the event planners up until 10 days before the event. Subsection 106(c) requires the Chief of Police to inform a permit holder in writing of any denial or restrictions on a permit. Subsection 106(d) provides for an appeal to the Mayor (or his or her designee) when a permit has been denied. Subsection 106(e) requires the Mayor to issue regulations governing the issuance of permits for First Amendment assemblies, and clarifies that in the interim, existing procedures for the issuance of permits still apply. Section 107 concerns police handling and response to First Amendment assemblies. The section endorses the crowd management model and limits the use of broad dispersal orders to situations where participants: (1) do not comply with the time, place, and manner restrictions, and voluntary compliance measures and enforcement measures targeted at the specific non-compliant individuals are unsuccessful; (2) are engaged in unlawful disorderly conduct or violence toward persons or property; or (3) a public safety emergency has been declared. Subsection 107(e) requires MPD to provide a clearly audible order to disperse, time to disperse, and a clear and safe route for dispersal when a dispersal order is used. Subsection 107(f) provides that MPD shall handle all assemblies for which a permit was not obtained (including assemblies where a permit was required and assemblies where a permit was not required) in the same manner as permitted assemblies. The MPD is directed to not issue a dispersal order or arrest assembly participants based solely on the fact that the assembly was not granted a permit. Section 108 prohibits the use of a police line to encircle participants in a First Amendment assembly unless MPD has probable cause to arrest, and has decided to arrest, the participants. Section 109 requires MPD to adopt a method of identifying officers during First Amendment assemblies that provides for clearly visible identification. Section 110 requires that MPD officers document, either in writing or electronically, all arrests made during First Amendment assemblies. It does not require the use of any particular form, but does require a minimum of information including the date, time and location of the arrest, the violation(s) charged, the name of the person arrested, the officer making the arrest, and a brief statement establishing the basis for the arrest. This section allows the police chief or his designee to implement a different procedure for documenting arrests, for a limited period of time, where the chief determines that there is an emergency and that alternate procedures are necessary, while still requiring documentation even after the fact. Section 111 addresses the use of restraints while processing persons arrested during a First Amendment assembly. For those persons arrested for non-violent misdemeanors who are held in an unsecured processing center (i.e., not in jail cells), MPD shall not use handcuffs, plastic cuffs, or other physical restraints except to the extent reasonably necessary, and in no event shall a person be restrained by connecting his wrist to his ankle. This section does not restrict the lawful authority of MPD to use such restraints at the time of arrest, immediately following arrest, and during transportation. Section 112 requires the MPD to promptly process persons arrested in connection with a First Amendment assembly. The section requires that the MPD document and justify any instances in which the four-hour requirement is not met, and requires the Chief to report annually on instances of delayed processing and specify remedial steps. Section 113 requires MPD to provide persons arrested in connection with a First Amendment assembly with a written notice identifying their release options. The notice shall be offered in Spanish for persons who wish or need a Spanish language notice. The notice also shall be offered in any other language as is reasonable to ensure meaningful access to the notice to persons who are limited English proficient. Section 114 requires the Chief of Police to issue rules regarding the issuance of police passes for members of the media. Section 114 repeals the DCMR provisions relating to the Mayor’s committee and requires the Chief of Police to promulgate rules on press passes. The section also requires MPD to develop a media policy for police-media relations during a First Amendment assembly, and requires that the MPD provide media representatives reasonable access to all areas where a First Amendment assembly is occurring. Section 115 mandates appropriate training for MPD personnel on handling First Amendment assemblies. Section 116 proscribes the use of riot gear and riot tactics at First Amendment assemblies unless the commanding officer at the scene determines there is imminent danger of significant violence. Moreover, absent an immediate need for protection of officers or others from physical harm, or to arrest actively resisting subjects, large-scale canisters of chemical irritant shall not be used by officers at First Amendment assemblies. Finally, an officer who determines that riot gear or chemical agents are to be used must file a written report to the Chief of Police within 48 hours, explaining his action. Section 141 amends DC Official Code § 5-1104(d) to give the Citizen Complaint Review Board the authority to monitor and evaluate police handling of First Amendment assemblies. Section 143 amends section 2102 of Chapter 24 the DCMR to state that the Chief of Police shall approve the form and number of press passes issued. Title II. Title II contains provisions relating to MPD’s investigation and surveillance of political activity and organizations. Section 202 contains definitions applicable to Title II. "First Amendment activities" are defined as constitutionally protected speech or association, or conduct related to freedom of speech, free exercise of religion, freedom of the press, the right to assemble, and the right to petition the government. Section 203 contains the statement of purpose of Title II and defines the kinds of investigations and preliminary inquiries that are covered by the act. All investigations and preliminary inquiries that involve First Amendment activities are covered by this title, while investigations and inquiries not involving First Amendment activities are not covered. Section 204 states that it is District policy that all MPD investigations and preliminary inquiries involving First Amendment activities shall be conducted for a legitimate law enforcement objective. MPD members may not investigate a person engaged in First Amendment activities for the purpose of retaliating against, punishing, preventing, or hindering the person from exercising his or her First Amendment rights. Section 205 deals with investigations and preliminary inquiries involving First Amendment Activities. Section 205 sets forth the requirements for an investigation involving First Amendment activities. Written authorization for such investigation is required from the Commander, Superintendent of Detectives, or such other MPD commander of similar rank as designated by the MPD regulations. For an investigation to be authorized, there must be reasonable suspicion to believe that the persons, groups or organizations being investigated are planning or engaged in criminal activity, and that the First Amendment activities are relevant to the criminal investigation. Investigations are initially limited to a 120-day period, but may be extended for additional 120-day periods. Investigations under the current MPD SOPs are authorized for one year. Investigations are to be terminated when logical leads have been exhausted. Section 206 sets forth the requirements for preliminary inquiries opened to determine whether or not a full investigation is warranted. Preliminary inquiries can be undertaken where reasonable suspicion of illegal activity has not yet been established, but where MPD receives information or allegations that require further scrutiny. Preliminary inquiries under this section are authorized for 60 days, and can be extended for an additional 60-day period. The Chief of Police must authorize preliminary inquiries that remain open for longer than 120 days. The current MPD SOPs authorize preliminary inquiries for 120 days, with additional 60-day periods and no outside time limit. Section 207 governs the investigative techniques and procedures that can be used in investigations and preliminary inquiries involving First Amendment activities. MPD must use minimization procedures – reasonable precautions to minimize the interference with First Amendment activities without impairing the success of the investigation or inquiry. Undercover officers, informants and mail covers may be used in either an investigation or preliminary inquiry after obtaining the authorization of the Chief of Police or his designee. Wiretaps, mail openings, pen registers and trap and trace devices can only be used in full investigations consistent with current law. Section 208 contains rules for investigations and preliminary inquiries, and requires the Chief of Police to issue rules governing investigations and preliminary inquiries. Subsection 208(b) specifically requires the MPD to direct undercover officers and informants not to participate in unlawful acts or threats of violence, not to plan unlawful acts, not to disrupt or prevent the lawful exercise of First Amendment activities. Section 209 allows MPD to conduct limited preliminary inquiries relating to upcoming First Amendment assemblies without additional authorization. Among the activities not needing authorization are: overtly contacting the organizers of the assembly; gathering public information about the assembly; reviewing permit applications; and collecting information about prior assemblies. Subsection 209(b) also authorizes filming and photographing First Amendment assemblies for the purpose of documenting violations of law and police actions, as an aid for future coordination of police services, and for training purposes. Section 210 clarifies that this act is not intended to prohibit MPD members from visiting places open to the public, attending events open to the public, or obtaining information in the public domain, on the same terms and conditions as members of the public, so long as they have a legitimate law enforcement objective. Undercover operations would still need to be authorized as required in section 206. Section 211. Section 211 establishes rules for maintaining Intelligence Section files and records. The section requires that information entered into Intelligence Section files be evaluated for source reliability, and content validity and accuracy. In addition, MPD is prohibited from collecting or maintaining information about the political, religious, social or personal views, associations, or activities of any individual, group or organization, unless the information is material to an authorized investigation or preliminary inquiry. This section also requires the periodic purging of records that are not accurate, reliable, relevant and timely. Section 212. This section provides for four types of monitoring. First, a panel of MPD commanding officers would review authorizations of investigations and preliminary inquiries involving First Amendment activities every 90 days. Second, the Commander, Superintendent of Detectives, would monitor the activities of undercover officers and informants. Third, the Chief of Police is required to annually prepare a report on the MPD’s investigations and preliminary inquiries involving First Amendment activities. Fourth, the Office of Civilian Complaint Review would be authorized to serve as auditor of MPD files and records, to assess compliance with this title. OCCR audit reports would be prepared annually. Section 241 is a conforming amendment to authorize the Office of Citizen Complaint Review to audit MPD files and records. Title III contains provisions relating to the post-and-forfeit procedure, police display of identification, and a private right of action. Section 302. This section addresses the post and forfeit procedure used by the MPD to resolve misdemeanor charges. Subsection 302(b) clarifies that resolving a criminal charge by posting and forfeiting collateral is not a criminal conviction, shall not be equated with a criminal conviction, and may not result in any subsequent sanction or penalty in any judicial or administrative proceeding or action. Subsections 302(c) and (d) require that arrestees offered the post and forfeit procedure be provided with a notice identifying the crime to be resolved, and describing the procedure and its consequences. Subsection 302(e) requires that the notice be offered in the Spanish language to those persons who require or desire notice in this manner, and offered in other languages as is reasonable to ensure meaningful access to the notice for persons who are limited English proficient. Subsection 302(f) requires that an arrestee sign the bottom of the notice in order to agree to resolve the charge using the post and forfeit procedure. Subsection 302(g) requires the Chief of Police to issue a list of all misdemeanor charges that MPD members are authorized to resolve using the post and forfeit procedure, and the collateral amount associated with each charge within 90 days after the District of Columbia Superior Court issues an updated bond and collateral list. The Chief shall make the policy available to the public, including placing the policy on the MPD website. Subsection 302(h) requires the Mayor to submit an annual public report to the D.C. Council regarding the use of the post and forfeit procedure during the previous year. Section 303 requires that MPD members, while in uniform, wear or display their name plate and badge, and not remove or cover this identifying information or prevent persons from reading it. Section 304 gives the OCCR jurisdiction over complaints from members of the public alleging that MPD officers failed to wear required identification or refused to identify themselves when requested to do so by a member of the public. Section 321 establishes a private right of action for persons harmed by a failure to comply with this Act, causing such person to be arrested, detained, restrained or unreasonably denied access to food, water, or toilet facilities. A person so injured may file suit in the Superior Court against the city, which shall be liable for appropriate equitable and legal relief.
COMMITTEE REASONINGThe Committee considered input from a great many sources in this bill, and submitted proposed amendments to interested parties in order to get a wide breadth of input. The American Civil Liberties Union, the D.C. Affairs section of the District of Columbia Bar, the Metropolitan Police Department, the Attorney General, and the Mayor’s office all submitted written comments for the record. Title I: First Amendment Assemblies The submission from the Office of the Attorney General (OAG) criticized the policy statement of §103, suggesting that it was not precise enough and could invite litigation if it was construed as applying to public property, disrupting traffic, or endangering public safety. The Committee agreed with the ACLU that the strong statement of policy is necessary and that no law of the District of Columbia can override Constitutional protections, but amended the language in deference to the OAG to clarify that restrictions can be designed to "protect public safety, persons and property." In the committee report, the phrase "reasonable restrictions" was substituted in place of "appropriate restrictions" in section 104, to conform to Constitutional standards. Also, the committee felt that it was important for the MPD to be solely responsible for issuing permits for all areas within the jurisdiction of the District of Columbia; thus, responsibility and references to the Department of Parks and Recreation in the permitting process was deleted. If a permit is sought for a District Park, MPD can coordinate with the Department of Parks and Recreation, just a it would with any other interested District agency. One of the proposed amendments submitted for discussion was whether to change the "imminent likelihood" language to a lower standard of "substantial probability" in this section and in like provisions throughout Title I. For example, § 104(b)(2)(C) reads, "The MPD…may enforce reasonable time, place, and manner restrictions on First Amendment assemblies by…where the additional restrictions are enforced to address a determination by the MPD during the pendency of the assembly that there exists an imminent likelihood of violence endangering persons of threatening to cause extensive property damage" (emphasis added). The Committee decided not to change the language to a lower standard, as it is precisely the requirement of imminence that provides the necessary justification for imposing new restrictions during an event, long after a permit was granted. Moreover, "imminence" is the constitutional standard articulated by the Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 (1969). Section 105 requires the Mayor to issue regulations governing the issuance of permits for First Amendment assemblies. The purpose of the permit program is to avoid situations where more than one group seeks to use the same space at the same time and to provide MPD and other District agencies the ability to provide appropriate police protection, traffic control, and other support for participants and other individuals. The Supreme Court has held that permit schemes that regulate First Amendment activities must provide ample opportunities for communication, must be narrowly tailored to serve a significant governmental interest, and cannot be based on the content of the message. E.g., Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992). Current D.C. regulations provide for the issuance of permits for First Amendment marches and other parades by the MPD, and the MPD has established a process for issuing permits pursuant to these regulations. The MPD also issues permits for demonstrations and picketing, although there are no underlying regulations governing the issuance of such permits and the MPD has not adopted any statement of standards or procedures for these permits. The current regulations also include a separate requirement for a permit for any address, speech or sermon on District streets, sidewalks, or other public spaces, although it appears that the MPD does not enforce this requirement (at least for non-religious events). In addition, the Department of Parks and Recreation has adopted a policy regarding use of the parks, although the policy generally does not address use by persons engaging in First Amendment activities. This section requires the issuance of one set of regulations governing all First Amendment assemblies, and specifies that a separate permit would not be needed for an address, speech or sermon. The Committee carefully considered a suggestion, proposed by the D.C. Bar, to change the nomenclature of the process from "permit" to "notice." The idea behind this would be to alleviate any misunderstandings that the MPD has authority to grant or withhold "permission" to First Amendment assemblies – a misunderstanding that was apparent even in the hearing testimony by the chief of police. The Committee concurs with this explanation by the D.C. Bar:
The right of free speech and free assembly is granted by the United States Constitution. It is not within the authority of a police department or other government agency to restrict this right except on clear evidence of imminent danger to public safety. The notion that in granting a permit to a free speech assembly, the police department is granting "permission" to use public space in the exercise of free speech rights reflects a fundamental confusion. Public space is the public’s space; it belongs to the peopleWhile concurring with the argument made by the D.C. Bar, the Committee ultimately decided to leave the language as first introduced, as "permit." Although the government is not allowed to prohibit protesting, it still has the authority to prohibit large groups from closing down streets and blocking sidewalks. No other city refers to the process as "notice" instead of "permit," and "notice" may have other legal implications. The Committee felt it was important to reflect the principle that the District should be the premier forum for public speech, and hence simplifying the process for small gatherings is in the best interest of the police as well as those who wish to speak. Subsection 105(d) exempts assemblies of 50 or fewer people from the permitting process. Currently, organizers of most small assemblies do not apply for a permit, and organizers of such assemblies that contact the MPD are told that no permit is required so long as the assembly does not take place in a street and thus disrupt traffic. The exemption reflects current practice as well as the fact that small assemblies that occur on a sidewalk or in a park typically require minimal police resources. Because the current permit regulations indicate that fees may be imposed even though the MPD does not enforce that for First Amendment activities, the Committee added subsection 105(e), which clarifies that user fees are not to be imposed for First Amendment assemblies. Subsections 105(a),(g), and (h) were accepted as friendly amendments at the Judiciary Committee meeting on December 1, 2004. These provisions were drafted by the ACLU and proposed by Councilmember Ambrose. Subsection 105(a) emphasizes that assembling in public is not an offense. Subsection 105(g) was proposed because of situations where MPD officers have threatened to arrest people who place anything on a sidewalk as part of a picket, parade, or demonstration. Persons seeking a "public space permit" for such activities through the Department of Consumer and Regulatory Affairs have encountered unconstitutional restrictions, and procedures not suitable for brief uses of small areas for First Amendment expression. Use of props and materials is a legitimate part of free expression, and should be allowed. Subsection 105(h) includes similar permission for the sale of demonstrated-related merchandise. This provision grew from the practice of MPD threatening people selling buttons, literature, and bumper stickers with "vending without a permit." Such regulation is inappropriate as applied to brief sales of materials during a First Amendment assembly. Under the current permit regulations, there is no administrative appeal process, although many jurisdictions provide for such appeals. Thus, the committee provided subsection 106(b) requires that permit applications be acted upon in a reasonably prompt manner, and 106(d) provides for an appeal to the Mayor (or his or her designee). Section 107 was developed to reflect best practices regarding police handling of demonstrations. Police departments across the country (e.g., Denver, San Francisco, Los Angeles, and New York City) have adopted procedures relying on crowd management techniques as a first response, before using more restrictive crowd control techniques. Crowd management techniques emphasize use, where possible, of voluntary compliance measures and enforcement measures that are targeted at specific, individual law breakers, instead of mass arrests. Where possible, this allows those persons who are demonstrating peaceably to continue the First Amendment assembly. While the MPD generally has adopted the crowd management model in its written statements of policy, the Committee investigation concluded that the department in practice had violated its own stated policy. The legislation provides a clearer, more specific and functional test for when a dispersal order should be used than contained in the MPD’s current Mass Demonstrations Manual (which provides that a dispersal order should be issued "[w]hen the intensity level of a crowd rises and unlawful disruption … is occurring to the extent that … there is a need to make a positive police response"). Subsection 107(f) provides guidelines to the MPD in handling assemblies where a permit was not obtained. As a matter of practice, the MPD, as well as other police agencies in the country, usually handle unpermitted assemblies in substantially the same manner as permitted assemblies. The explicit provision that MPD may not issue a dispersal order or arrest assembly participants based solely on the fact that the assembly was not granted a permit, but instead should enforce reasonable time, place, and manner restrictions. This ensures that assemblies are treated similarly and constitutionally, whether permitted or unpermitted. The subsection also provides that, in enforcing time, place, and manner restrictions where an assembly did not receive a permit, the MPD may base the restrictions in part on the fact that the MPD and other government agencies had less opportunity to plan for the assembly, as compared to a permitted assembly. This, along with other considerations, will mean that sponsors of larger assemblies will continue to have substantial reasons for obtaining a permit prior to the planned assembly date. Section 109 requires MPD officers to display their badge numbers or names as part of their uniform while policing assemblies; this section arose from concern that in prior instances, officers have concealed their identifying information. Section 110 requires that MPD officers document, either in writing or electronically, all arrests made during First Amendment assemblies. It does not require the use of any particular form (such as the current MPD Field Arrest Form), but does require a minimum of information including the date, time and location of the arrest, the violation(s) charged, the name of the person arrested, the officer making the arrest, and a brief statement establishing the basis for the arrest. This is the information that the MPD presently requires be included on a Field Arrest Form. The current MPD mass demonstrations manual requires the use of the Field Arrest Form "in normal circumstances" when making arrests during a First Amendment assembly. The Committee solicited input on section 111, which regards the use of restraints while processing persons arrested during a First Amendment assembly. Ultimately, it decided to prohibit the use of wrist-to-ankle restraints, and added that no person should be restrained in a manner that forces them into physical pain. These specifications arose from the use of flexicuffs in this manner during the Pershing Park arrests of 2002. In litigation connected to that incident, Judge Sullivan opined that such use did not reach the level of what is Constitutionally impermissible in that situation (Barham v. Ramsey, 2004 U.S. Dist. LEXIS 19150, *58 (D.D.C. 2004)). Nevertheless the Committee concludes that local law can and should embody a higher and clearer standard, and that it is necessary both for the physical protection of arrestees and to avoid potential liability of the District Government to limit the use of wrist-to-ankle restraints. Section 112 reflects the standard contained in Lively v. Cullinane, 451 F. Supp. 1000 (1978), and subsequently adopted by the MPD, which requires the MPD to process arrestees within a four-hour time period. Section 113 requires written notice in Spanish and other languages as reasonable regarding release options upon arrest. This "reasonableness" standard is the standard promulgated by the U.S. Department of Justice, pursuant to Title VI of the Civil Rights Act of 1964, with regard to the provision of language services to limited-English-proficient persons by state and local governments that receive federal financial assistance. (Department of Justice Final Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons (June 18, 2002)). In section 114, addressing police passes for the media, the Chief of Police is required to issue rules regarding the issuance of police passes for members of the media. The current DC regulations (24 DCMR 2102) provide for a Mayor’s Committee on the Issuance and Use of Police Passes, which was to draft rules for issuing press passes which in turn would be approved by the Chief. This committee has not been in operation for several years, did not draft any rules while it was in operation, and no rules have been issued. Section 114 repeals the DCMR provisions relating to the Mayor’s committee and requires the Chief of Police to promulgate rules on press passes. The section also requires MPD to develop a media policy for police-media relations during a First Amendment assembly, and requires that the MPD provide media representatives reasonable access to all areas where a First Amendment assembly is occurring. The Committee felt this provision was particularly important because of the number of media members who were arrested and detained in District assemblies, as well as the need for meaningful coverage of First Amendment Assemblies in the District. Section 116 was proposed by the ACLU and was added in the Committee print to address police use of riot gear and tactics at First Amendment Assemblies. By donning riot gear, police send a message that they expect demonstrators to engage in violence and disorder. Thus, when riot gear is used unnecessarily, it is an implicit criticism of both the demonstrators and the Constitutional right they are exercising. It also chills the willingness of law-abiding people to exercise their First Amendment rights, and can even provoke the very violence that it is intended to suppress, as the U.S. Secret Service has recognized. See A Quaker Action Group v. Morton, 362 F. Supp. 1161, 1169-70 (D.D.C. 1973), aff’d in part and remanded in part, 516 F.2d 717 (D.C. Cir. 1975) ("’Low-key’ methods have a minimum tendency to excite or antagonize members of a crowd to acts of violence. The opposite, or "high-key" methods have a tendency to provoke lawless acts and violence which can erupt into mob action or panic. . .This policy judgment has been repeatedly expressed by the Secret Service Director."). The competing needs of public safety and free speech are reconcilable, however, which is why the Committee added this section, which states that riot gear is not to be used in First Amendment assemblies unless there is an immediate need for self-defense. If there is a realistic expectation of violence or disorder (as distinct from civil disobedience), fully riot-equipped police officers can be stationed in some proximity to a demonstration, out of direct sight, but ready to respond if needed. The Committee refined the prohibition on the use of chemical irritants by specifying that large-scale canisters of chemical irritants should only be used to protect officers or others from physical harm or to arrest an actively resisting person, and that chemical irritants shall not be used to disperse a First Amendment assembly unless participants or others are committing acts of public disobedience that endanger public safety and security.
Title II: Police Investigations Concerning First Amendment ActivitiesTitle II contains provisions relating to MPD’s investigation and surveillance of political activity and organizations. Section 203 defines the kinds of investigations and preliminary inquiries that are covered by the act. All investigations and preliminary inquiries that involve First Amendment activities are covered by this title, while investigations and inquiries not involving First Amendment activities are not covered. For example, investigations of the activities of an organization protesting government policies would be covered, as would an investigation of an organization that promoted hate crimes. Other types of criminal investigations such as narcotics investigations, organized crime investigations and gang investigations generally would not be covered. In creating section 205(a), the Committee noted that while the MPD has developed Standard Operating Procedures (SOPs) for its Intelligence Section that govern some aspects of these investigations and preliminary inquiries, the regulations required under this section would be stricter and also broader in coverage (they would govern investigations and preliminary inquiries involving First Amendment activities undertaken by any MPD officer, not just those in the Intelligence Section). Section 211 establishes rules for maintaining Intelligence Section files and records. The requirements of this section reflect the recommendations of the Law Enforcement Intelligence Unit Association (LEIU), the International Association of Chiefs of Police (IACP) and the Commission on Accreditation of Law Enforcement Agencies (CALEA), among others. The section’s requirements are also similar to the federal regulation contained in 28 CFR Part 23, which govern federally funded, inter-jurisdictional criminal intelligence systems. According to MPD, the Intelligence Section has now begun to follow these guidelines. The section requires that information entered into Intelligence Section files be evaluated for source reliability, and content validity and accuracy. In addition, MPD is prohibited from collecting or maintaining information about the political, religious, social or personal views, associations, or activities of any individual, group or organization, unless the information is material to an authorized investigation or preliminary inquiry. (The federal regulations and LEIU standards prohibit collection and maintenance of such data without reasonable suspicion of criminal activity; however, this would preclude a preliminary inquiry.) This section also requires the periodic purging of records that are not accurate, reliable, relevant and timely.
Title III: Miscellaneous provisions related to enforcement and procedures.With regard to post and forfeit, according to the Office of the Attorney General of the District of Columbia (OAG), approximately 5,000 charges are resolved by the MPD each year using this procedure. Prosecutors play no role in the disposition of these cases. Because of the number of cases resolved using this procedure and the limited resources that the OAG is able to devote to misdemeanor prosecutions, the OAG strongly opposes any requirement for prosecutor input in these cases (unless it is provided with a substantial increase in resources). Section 302 provides for greater clarity and transparency regarding the meaning of the post and forfeit procedure and its use in resolving criminal charges. Currently, there is no statute that clearly specifies the meaning of post and forfeit, and the MPD has not promulgated a statement of policy and procedures regarding its use and does not have a comprehensive, updated list of the charges that it may resolve using post and forfeit. Currently, there is some ambiguity as to whether use of the post and forfeit procedure to resolve a traffic offense is "equated" to a criminal conviction for purposes of issuing points on a driver’s license and revoking a driver’s license. Any effort to equate a post and forfeit resolution with a criminal conviction would raise substantial due process concerns. Thus, section 302(b) clarifies that resolving a criminal charge by posting and forfeiting collateral is not a criminal conviction, shall not be equated with a criminal conviction, and may not result in any subsequent sanction or penalty in any judicial or administrative proceeding or action. As originally introduced, § 302(g) required the Chief of Police to issue a policy governing the standards and procedures used by the MPD when deciding whether a violator of the statute may resolve their charge by posting and forfeiting collateral. The Office of the Attorney General pointed out in its written comments that MPD dos not have the legal authority to do this, as it is the Board of Judges and the Superior Court who determines the collateral amounts, and charges for which an individual can forfeit collateral. Thus, the Committee accepted OAG’s suggested amendment to require the MPD to issue a list of all misdemeanor chargers that MPD can resolve via post and forfeit, within 90 days after the Court issues an updated list. Section 321, creating a private right of action, was proposed by the ACLU in order to better guide the courts that a person who is harmed by police who violate the law can obtain redress. This section simply clarifies that relief is available. The Committee also considered alternate language by the bill’s original drafters, which read, "The provisions of this Act, and any violations thereof, may be considered, as appropriate, in any action filed under the Constitution or law of the United States, or any other law of the District of Columbia." Its impact would depend on court interpretation but would give the courts the green light to use the act in resolving suits filed under the First or Fourth Amendments.
Statute versus RegulationA major point in the hearing and in written submissions following the hearing concerns whether the policies reflected in this comprehensive bill are more appropriately enacted as statute or written as regulation, such that the Executive could, over time, amend the policies without full consideration by the D.C. Council. The Committee concludes that these subjects are of sufficient importance that they appropriate for statutory enactment. It is also the case, as noted in the Committee’s investigation report, that many of the same issues were debated through lengthy litigation in the 1970s and, at that time, the Council opted against codifying what was then, as now, seen as best practices with regard to police management of large First Amendment assemblies. The Committee acknowledges the viewpoint expressed by City Administrator Robert Bobb that in the Executive’s view, it is preferable to have policies on political demonstrations and surveillance of political activity reside in regulation and/or in police department general order. The Committee disagrees and presents these important policies to protect civil liberties and clarify law enforcement best practices as legislation. A related recommendation has to do with whether the Council is given the responsibility of approving regulations required to be promulgated in the wake of passage of this legislation. The ACLU and D.C. Bar each recommended that regulations come back to the legislature for approval. It is the Committee’s view that the legislation itself sets District policy, and it is the responsibility of the Executive to promulgate regulations, as required, that are fully consistent with the law. The Committee ultimately decided not to require the regulations come back to the Council for approval.
The Committee projects no fiscal impact for Bill 15-968. The fiscal impact statement signed by the budget director is included (attachment B)
PUBLIC HEARINGJudiciary Committee Chairperson Kathy Patterson began the hearing by introducing three consultants to the Committee on this Bill: Richard B. Jerome, Mark A. Posner, and Mary M. Cheh. Noting that having witnesses associated with the Committee present the legislation was unusual, it seemed appropriation given the complexity of the topics and the importance that there be broad public understanding of all of the issues. She outlined the background of the expert witnesses and invited them to introduce and provide a background to the bill, its purpose and impact. Richard Jerome is the President of Richard Jerome, PC, a firm providing legal and consulting services specializing in civil rights and police reform. Mr. Jerome is currently the Deputy Monitor and court appointed Special Master for two police reform settlements in Cincinnati, Ohio. Other recent projects included a review of the Portland, Oregon, Police Bureau’s officer-involved shootings (with the Police Assessment Research Center); an independent evaluation of the effectiveness of Albuquerque’s police oversight system for the Albuquerque City Council; and assistance to the District of Columbia Council on police department responsibilities and standards for handling of First Amendment assemblies and other demonstrations and police surveillance of political organizations and other groups. Mr. Jerome also has served as a consulting expert for the City of Oakland, where he reviewed the Oakland Police Department’s policies, practices and procedures regarding use of force, citizen complaints and Internal Affairs investigations, and other accountability measures. The reforms recommended from this review form the basis of a settlement of class action litigation. He also was retained by the Detroit Police Department to work with the Department of Justice and assist the police department’s efforts at police reform. He is currently involved with the Police Foundation on a survey, review and technical guide for police departments on Records Management Systems. From 1997 to January, 2001, Mr. Jerome served as Deputy Associate Attorney General, during which time he oversaw the work of the Civil Rights Division and the Community Relations Service. He also coordinated the Department of Justice’s efforts to promote police integrity. This work included review of the Department’s police misconduct "pattern or practice" program, as well as criminal civil rights prosecutions for excessive force and other constitutional deprivations. As Counsel to the Assistant Attorney General for Civil Rights, he coordinated the efforts of the National Church Arson Task Force in 1996, and reviewed the Civil Rights Division’s Title VII and other employment discrimination litigation in 2001. Mr. Jerome has an extensive background in civil rights litigation. In his 12 years with the Department of Justice, Mr. Jerome was lead counsel for the United States in several statewide redistricting lawsuits, and appeared on behalf of the United States in cases litigated under the Voting Rights Act of 1965. Mark Posner currently serves as a consultant on civil rights enforcement and compliance issues, with particular expertise in the area of police practices, and teaches as an adjunct professor at the American University and University of Maryland law schools. He served as a consultant to the Judiciary Committee to assist in drafting the proposed First Amendment Rights and Police Standards Act of 2004. From 1980 until 2003, Mr. Posner served as a line attorney and supervisor in the Civil Rights Division of the United States Department of Justice. During his last seven and a half years in the Division, he played a key role in the Departments police integrity program. He helped lead several wide ranging internal reviews regarding the practices of Justice Department law enforcement agencies, was one of the draftsmen of a detailed best practices guide issued by the Department in 2001, negotiated comprehensive consent decrees with the Los Angeles Police Department and the New Jersey State Police, and led Justice Department efforts to monitor compliance with those decrees. He graduated from Boalt Hall School of Law at the University of California at Berkeley as Order of the Coif, and after law school clerked for a federal judge in Los Angeles. Professor Mary M. Cheh is Elyce Zenoff Research Professor of Law at the George Washington University Law School. Professor Cheh teaches and writes primarily in the areas of constitutional law and criminal procedure. While on sabbatical leave in 1986, she served as a special assistant U.S. attorney in Washington, D.C. In an earlier leave in 1983, she did pro bono work for the Centre for Applied Legal Studies in South Africa. Professor Cheh has served as a consultant to the National Institute of Justice and the President’s Commission on Organized Crime. Professor Cheh received a J.D. from Rutgers University and an LL.M. from Harvard University, and served as a law clerk to the chief justice of the New Jersey Supreme Court. Richard B. Jerome began by thanking the Committee for the opportunity to be a part of this important piece of legislation. He emphasized that the District of Columbia is one of the most important and grandest sites in this country for marches, demonstrations, protests, rallies and picket lines, and that this legislation is essential to ensure not only that the MPD has the authority and the ability to protect the safety and welfare of the District of Columbia, but also that the safety of residents, visitors, and participants in First Amendment assemblies must be protected. Mr. Jerome then described the process that the consultants used in helping the Committee draft Bill 15-968, which included reviewing the Committee’s report, reviewing police operations manuals from other cities, and meeting with MPD commanders and staff, District of Columbia Attorney General, the United State Attorney’s office, and representatives from the ACLU of the National Capital Area. Thus, the legislation grew out of several sources. Mr. Jerome established that the purpose of Title II is to ensure that constitutional rights are protected during MPD investigations involving First Amendment activities, and explained that Title II was carefully designed to balance the interests of public safety and constitutional rights. He then described the sections in Title II and the motivation behind each. Mark A. Posner’s testimony focused on titles I and III of Bill 15-968, which deal with First Amendment assemblies and certain additional police procedures that both relate to First Amendment assemblies and to police interactions with the public more generally. The term "First Amendment assembly" is defined in the legislation (Section 102) to mean any "demonstration, rally, parade, march, picket line, or other similar assembly conducted for the purpose of persons expressing their political, social, or religious views." Mr. Posner explained that the legislation was developed through a careful process of identifying existing problems and concerns, obtaining input from interested and knowledgeable persons both inside city government and out, reviewing best practices that have been developed regarding the regulation of First Amendment activities, and weighing court decisions interpreting constitutional mandates. In particular, Titles I and III draw heavily upon the conclusions and recommendations set forth in this Committee’s March 24, 2004 report entitled "Report on Investigation of the Metropolitan Police Department’s Policy and Practice in Handling Demonstrations in the District of Columbia." Mr. Posner then gave an overview of Titles I and III, respectively. Mary Cheh testified as to why the Committee chose a legislative solution to address the problems uncovered in the investigation. She praised the persistence of the Committee to inquire into and address the actions taken by the police in 2000 and 2002 at demonstrations. In the decision to write legislation, Professor Cheh noted that while the Constitution does protect fundamental rights, the Constitution also does not prohibit everything that may be undesirable action by a government. Legislation can serve to extend and elaborate on existing constitutional rights, as this bill does. Moreover, lawsuits are limited to the issues raised by the parties, but legislation can be comprehensive. Professor Cheh stated that the most important provisions of Title I included the rules police are to follow in dispersing demonstrators or arresting them. Title I also establishes the practices to be followed in effecting arrests and holding persons arrested in connection with First Amendment assemblies. Title II, concerning preliminary inquiries and criminal investigations, employs strategies to make police decision-making more thoughtful and more legitimate. Title III focuses on the release of persons who may be able to post and forfeit, and the requirement that officers wear badges and not cover them up. Chairperson Patterson asked the panelists to comment on the national context, as well as the issue of protesters being able to demonstrate "near the object of the protest." Mark Posner noted that beginning four years ago at the Democratic National Convention, police were setting up pen-like "protest zones." Mary Cheh added that when challenged, courts have not been striking these restrictions down reliably. Although the federal government cannot be bound by this legislation, it serves as a model and the Administration should address these problems. Chairperson Patterson then asked Richard Jerome about his statement that the MPD had been mirroring guidelines issued by the Attorney General of the United States, which had served to chill first amendment expression. Mr. Jerome responded that the guidelines are only supposed to be used as a guide, but civil rights groups have questioned many of the proposals, and this legislation ensures that investigations and the like are only used for legitimate purposes. Chairperson Patterson suggested there might be concern about allowing unpermitted demonstrations, and asked the panelists to respond. Mark Posner stated that the Constitutional framework allows expression of views consistent with public safety concerns and those of nonparticipants. The permit process is a means to an end, but the end should not be enforced as absolute. A permit is issued to allow police and agencies to plan, which is needed for larger assemblies (whereas 50 people on Connecticut Avenue doesn’t require the same kind of planning—only one or two officers would be needed to provide coverage). Permits benefit the organizers too, by giving them assurance they have the space and the time requested. Organizers can negotiate with MPD if restrictions are sought. If a permit is not obtained, that can be taken into account in time, place, and manner restrictions. The bottom line, Mr. Posner stated, is the conduct of the assembly; if it is not problematic, permits don’t matter. Professor Cheh added that Mr. Posner is exactly right—you don’t need government permission to express yourself, but the permit process allows for planning and space. She said that the notion that one needs permission is wrong, and that the legislation corrects any misunderstanding about that. She emphasized that the issue is conduct, not permission. Mr. Jerome added that if organizers have a plan to close down a street, the permit allows organizers to do that. Chairperson Patterson then asked several questions about the amendments proposed by the Committee. Arthur Spitzer of the American Civil Liberties Union of the National Capital Area, testified in strong support of Bill 15-968. He emphasized that as the premier venue for demonstrations and protests, the District of Columbia and the actions of its government will be in the public eye. Mr. Spitzer testified to the background of the bill, and share the findings of a report prepared by the ACLU of the National Capital Area and presented at the Committee hearing in 2003, surveying the history of MPD’s handling of demonstrations and civil disobedience over the past three and a half decades. Mr. Spitzer then highlighted several of the important provisions of the Bill, and suggested a number of amendments meant to improve the legislation, including making it specific that lack of permit in a demonstration is not a crime; adding deadlines on action for issuing permits that have more teeth; add that no permit should be denied solely on the basis of the time filed; prohibiting the use of wrist-ankle or physically painful restraint upon detention; limiting the use of riot gear and riot tactics; allowing the use of props and structures and the sale of paraphernalia; a private right of action; and Council review and approval of MPD regulations. Colonel Joe Mayer testified that he was arrested on September 27, 2002 at Pershing Park and was kept restrained for 28 hours after the arrest. He objected to a proposed amendment giving police discretion to make reasonable determinations on the extent and manner of restraints to secure their safety. First, he said, this would be totally redundant, "police have all the authority they need in other laws and regulations to protect selves and people in custody." Second, this language gives police a pat on the back for their actions of September 2002, as they maintain their restraints were reasonable. He supports the language originally contained in the bill, as it is more than adequate to eliminate further need for discretion on the part of the MPD. He felt that even if the Committee adopted the proposal submitted by the ACLU, "MPD will still find discomforting things to do." Mara Verheyden-Hilliard, Partnership for Civil Justice, stated that she has acted as counsel on some of the cases for those arrested. She said that litigation over the past several years has shown that MPD’s conduct is illegal and recalcitrant, which is why she chose to testify today. MPD constructs itself with such extreme misconduct that makes it clear that no discretion can be left to the MPD, and any discretion left is deeply troubling. Ms. Verheyden-Hilliard stated that it is important to make clear that parading without a permit is not illegal and does not necessarily create arrestable circumstances. She also testified in support of keeping the standard for action at "imminent likelihood." With respect to the permitting procedure, she said that it is good to have clear rules on grant and denial. Section 104(b)(2) allows MPD to put in new restrictions to already-granted permit, which is not constitutional, and it doesn’t protect against adverse action against adverse groups. With respect to timelines for the permit process, Ms. Verheyden-Hilliard testified that elasticity in timelines will be used against disfavored groups, and that two to three days turnaround time is recognized in other jurisdictions. She also stated that the wrist-to-ankle restrains are a very painful form of restraint—to the extent of being punitive, and the Council can and should bar the use thereof. On jurisdictional issues, Ms. Verheyden-Hilliard pointed out that we cannot bind the Federal government, but MPD frequently works in concert with federal law enforcement, so it is important they must abide by laws. The MPD should be banned from acting unconstitutionally, even if the Federal government is engaging in such action. With respect to the domestic spying provisions in Title II, Ms. Verheyden-Hilliard said that this is of concern because it tracks the Attorney General’s guidelines; but in April the old guidelines were scrapped and Congress allowed self-regulation. Thus, there is no reason to track those guidelines, she said. The Council must put in serious restrictions, she said, because there is no basis to investigate first amendment activity. The MPD cannot be allowed discretion; there should be judicial oversight and they should have to seek authorization. Ms. Verheyden-Hilliard also spoke out in opposition to so-called "free speech zones," stating that once areas are carved out, is that it says everything else has less protection. Mark Goldstone, Chairman of the Demonstration Support Committee of the D.C. Chapter of the National Lawyers’ Guild testified in support of Bill 15-968. Mr. Goldstone referred to his testimony to the Committee last December, and the MPD scheme he dubbed the "Ramsey Plan." He reiterated that similar dangers to the First Amendment are being carried out in police departments across the country, and referred to a book called The Assault on Free Speech, Public Assembly, and Dissent, available on the NLG website. He listed several key elements of the "Ramsey Plan" which are now being used at protests and demonstrations in other jurisdictions. Such dissent suppression is not tolerable in a democratic society based on rule of law, and it is not consistent with the presumption of innocence. Mr. Goldstone had a comment on criminal investigations involving First Amendment activities, suggesting that MPD should only be allowed to investigate groups planning or engaged in non-First Amendment criminal activity. Otherwise, open-ended political investigations would continue. Mr. Goldstone stated that it is a disgrace that the First Amendment has been suspended in the District, and hopes that with this legislation that "our streets and parks can once again belong to the People." Chairperson Patterson asked Ms. Verheyden-Hilliard for an update on litigation in other cities, and asked if this bill became effective tomorrow, whether injunctive relief would still be needed. Ms. Verheyden-Hilliard responded that yes, but with modification, the primary issues would be addressed. Chairperson Patterson asked whether there are other issues addressed in nation-wide litigation that the Committee has not looked at, and Ms. Verheyden-Hilliard responded that the cutting-edge issue is joint federal and local action. Chairperson Patterson asked whether these broader issues could be addressed perhaps through the 9/11 panel or some other advisory check and balance organization, and Ms. Verheyden-Hilliard responded that it would depend on who was part of the panel, whether it was a cross-section of activists or people as opposed to part of the same establishment. Ronald Richardson, UNITE HERE testified in favor of the bill, and the need for accountability and guidelines for police action in the District at First Amendment Assemblies. Eric Lieberman, Associate Counsel, The Washington Post, on behalf of the Maryland Delaware D.C. Press Association focused his testimony on police and media relations. He stated that Bill 15-968 recognizes the importance of media access to demonstrations; demonstrations in the Capitol focus on important issues; for meaningful coverage journalists need as much access as possible. With respect to the extent of press access under the bill, Mr. Lieberman stated that it is no less than members of the general public, and enhanced unless necessary for safety. MPD must make reasonable access for photographs. With respect to media credentials, the bill says that the Chief shall issue passes, adopt rules, and shall recognize and honor these credentials. Mr. Lieberman stated that he would support this if issued in an appropriate manner. His enumerated his concerns: who should issue the credentials? The current regulations state that it is supposed to be media committee who meets with the MPD, but the process is defunct, and it would be better to reinvigorate the committee process. The media is familiar with colleagues and those who don’t ordinarily operate in this jurisdiction. The process should require that credentials be issued in an inclusive and content-neutral manner. More explicit guidance is needed as to what non-MPD credentials should be recognized; it would be wise to require recognition of credentials from other jurisdictions. With respect to honoring credentials, Mr. Lieberman asked the Committee to recognize whether "honoring" should be explicitly explained—"permitting enhanced access and protecting holder from arrest" and should MPD be required to promptly screen large groups of detainees to make sure media credentialed people are not held. Finally, there should be a written policy to govern police/media relations, and supports that the Chief of Police should develop and implement a written policy. Mr. Lieberman emphasized that it is good to work toward eliminating arresting journalists, and suggested designating an MPD official to handle complaints from news organizations. Gregg Leslie, Legal Defense Director, The Reporters Committee for Freedom of the Press; testified that there are hotlines for journalists at these (First Amendment) events. With respect to the credentialing process, Mr. Leslie stated that media involvement is essential. In this bill, the Chief of Police is left with discretion to set policy. He explained that many journalists do not like credentialing; journalists run both the White House and Capitol Hill systems. Also, he stated, any policy needs to be aware of due process claims— a credential process must be written and must not be arbitrary in its application, and there must be requirements for a quick response and a method to appeal a refusal to issue credentials. Mr. Leslie analogized that just like the lack of a permit does not mean an assembly is illegal, the lack of a press pass does not mean that a journalist doesn’t have right to cover the event. Mr. Leslie then turned to the issues surrounding oversight of the policy process and the training of police. He stated that when journalists are arrested, it is often because police feel a need to control the scene. But, Mr. Leslie averred, presence of the media does not interfere with police handling of the situation; when officers are properly trained, they understand media presence is not a threat to control. In sum, Mr. Leslie testified that the media’s concerns are small; usually they are allowed to cover these events. He stated that he would be in favor of minor changes, and said that he has confidence that there is a good solution. Chairperson Patterson then asked about the Capitol Hill and White House credentialing process, and also how organizations deal with independent reporters. Mr. Leslie replied that it is not a simple process; organizations have had to learn that new forms of media have emerged that stand up to professional standards of journalism and have had to deal with how to incorporate these individuals. He said that it is currently an ad hoc process because there is no bright-line rule as to who qualifies as a journalist. Chairperson Patterson then asked whether there exists some kind of written policy that embodies the process. Mr. Leslie stated that the policy is specific, but he has not read it, and Mr. Lieberman offered to look into it for the Committee. Chairperson Patterson then said that she was curious about whether it would be possible to resuscitate the defunct committee, if indeed the committee ever functioned well. Mr. Lieberman responded that he had spoken with Joe Gentile (MPD) earlier, and had determined that at some time earlier it did meet, but the process withered. The police now have legitimate concerns as to someone posing as a journalist. When asked by Chairperson Patterson whether their organizations would be willing to be involved, Mr. Lieberman said yes, and Mr. Leslie stated that press passes will never be perfect. Adam Eidinger, Co-Chair, D.C. Statehood Green Party testified in support of the bill. He stated that it should improve how people are treated by local law enforcement. Mr. Eidinger explained that he has witnessed and been a victim of actions by police during protests. He testified that some people have avoided coming to the District of Columbia out of fear of police actions. He had also testified at the Committee hearing in December 2003 about his arrests and the need to rein in MPD. Mr. Eidinger then listed several provisions that he thought were very good in the bill, particularly a specific time to respond to permit applications. He related that in April 2002 he applied for a permit for a large demonstration and did not receive a permit until 20 hours before the demonstration, which was very disruptive (the group had applied over a month in advance). Mr. Eidinger added that people should be allowed to have spontaneous gatherings, and permits should not be an issue. Further, he stated that the threshold for use of restraints should be heightened and added that he had been restrained when arrested by the MPD. He added that the Chief of Police should not run media credentialing, and there is a need for meaningful restrictions on undercover investigations—the current language he suggested will not provide sufficient restrictions. He concluded by thanking the Committee and Chairperson Patterson for her work on the bill. Ann Loikow thanked Chairperson Patterson and the co-sponsors of the bill. She emphasized that the First Amendment grants rights to assemble, demonstrate, and petition, and that what has happened recently is that individual rights have come to be seen as "gifts." She said that although the government thinks it grants these gifts to the people, the government only has the rights the people give it. Ms. Loikow testified about the provocation by police that she experienced, such as being penned in at an April 2003 peace demonstration. She stated that she endorsed the ACLU’s proposed amendments, particularly the private right of action. Ms. Loikow felt that the legislation should be more explicit in barring restraint techniques. With respect to the domestic spying issue, Ms. Loikow testified that she had some qualms, to the extent that the policy is based on the FBI guidelines. She also concurred with the idea that it must be clear that a permit is not required for people to gather. Finally, Ms. Loikow stated that it is most important that these policies and procedures be enacted into law, and not left as regulations of the MPD. Andy Shatney testified that protesting without a permit is not criminal, and that many students protest in the District of Columbia. He noted that the city does not relinquish its ability to arrest persons violating the law, and that people protesting should not feel that they are in danger when they demonstrate spontaneously. Mr. Shatney stated that police behave as if they have a blank check, and that too much discretion is wrong. Moreover, he said, police resources should not have to be diverted from more appropriate law enforcement activities to monitor protests.
Government WitnessesCity Administrator Robert Bobb began his testimony by stating that the Executive and the Metropolitan Police Department were committed to protecting First Amendment rights. He stated that the Executive supports the bill, but that detailed guidelines would undermine MPD’s ability to manage public safety and may endanger officer safety. Mr. Bobb said he would support the broad policy outlines reflected in the bill. With respect to the detailed procedures for MPD, Mr. Bobb recommended that the Executive agencies work through some of the procedural matters and bring proposals back to the committee for support. He then listed four specific provisions for further collaboration, including the following:
Section 105, which exempts certain events from permits, stating that it is too broad and would increase the number of events that MPD would have no control over, eliminate the dialogue of the permit process, create an overly restrictive deadline for modification (he said two weeks is too restrictive and MPD cannot adjust to changed circumstances, such as a heightened terror threat level);Section 106; Mr. Bobb said that it restricts MPD’s ability to issue dispersal orders in the interest of public safety, and that such orders are often appropriate to diffuse situations before violence occurs; Section 107 would prevent MPD from using police lines to prevent mass protests from departing from the planned route, and Section 110, which he said would limit the department’s ability to secure arrestees in places less secure than cellblocks. Charles Ramsey, Chief of Police, Metropolitan Police Department began his testimony by acknowledging the work of the Committee on this issue. He clarified that the MPD does not initiate conduct or investigations based on First Amendment activities or their content, and emphasized what he characterized as the department’s commitment to protecting and defending the rights of all individuals. Chief Ramsey testified that most demonstrations are peaceful, and MPD works with groups. He noted that the police need some discretion and flexibility to be able to deal with violent and criminal activities that take place in the context of demonstrations. He declared that when it comes to operational matters, the MPD knows best how to proceed, and that the bill unduly prescribes specific operational procedures. With respect to specific sections, Chief Ramsey recommended that the Office of Citizen Complaint Review not audit the department’s preliminary inquiries and investigations, arguing that that would create a conflict of interest. Chief Ramsey also testified with specific objections to provisions of the bill, including the authorization for non-permitted demonstrations, stating that the permitting process provides valuable notice. Chief Ramsey also objected to the deadline for modification of permits, dispersal order restrictions, restrictions on police lines, limitation on use of restraints, and public reporting requirements. George Valentine, Office of the Attorney General, Civil Litigation Division, testified that he supervises suits against the city, including the Pershing Park litigation and other tort suits. He told the committee that he will submit a list of technical amendments and corrections for the bill. In his testimony, he highlighted two areas of concern. First, he addressed the private right of action, stating that it is not needed because any time the District enacts a statute, it can be enforced without such an explicit right being created. Moreover, he pointed out that there are already federal and civil rights remedies available to demonstrators. He said that common law would dictate that if the statute was violated, it would constitute negligence per se, and the department would have to defend its conduct. Mr. Valentine went on to say that this statute goes beyond the First Amendment because the U.S. Supreme Court has held that local jurisdictions can hold stricter standards than the Constitution requires, but one must be careful in drafting that "any" violation of the statute creates a cause of action. In this bill some provisions deal with core rights, but some deal with procedure and administration. Finally, Mr. Valentine asserted that the private right of action is unnecessary if the Committee simply wants MPD to adhere to the requirements of the legislation. Second, Mr. Valentine addressed the provision proposed by the ACLU relating to personal service on police officers. Although he stated that he had not researched exhaustively, he wondered whether the Council can impose employment rules on officers, because they are part of a union with work rules governed by a collective bargaining agreement. He stated that there are other ways to achieve that goal, and that it is essential that officers have full due process. Chairperson Patterson then noted that while the legislature cannot abrogate existing labor contracts, it can influence successor contracts. Mr. Valentine responded that this assertion is correct, but that it is inconsistent with the goal of the statute, and that if the Committee is serious about holding officers to a higher standard, this is a step backwards. With respect to the private cause of action, Chairperson Patterson stated that common law says a person can litigate if the statute is violated, but one would not want any and all portions of the statute to be litigated, and asked whether this provision is overbroad or vague. Mr. Valentine responded that it is both; if the goal is to create a higher First Amendment right here, the current common law remedies would apply. If the goal is to make the city liable, he said common law would not hold the municipality liable because of the public duty doctrine for something like a system failure. Chairperson Patterson then inquired about Pershing Park and parading without a permit, asking how the Executive concludes that this would be an arrestable defense. Mr. Valentine responded that in the litigation transcript with Judge Sullivan, the city argued that parading without a permit is a criminal offense that can lead to arrest, but that the city has as a matter of practice does not arrest for this offense. The criminal provision for traffic adjudication was changed (24 DCMR 705) and a person can be arrested even if the statute does not provide for incarceration, he said. Chairperson Patterson disagreed, suggesting that this matter is contained in the city’s traffic code, and Mr. Valentine said that in the case of parading in streets versus parading in a park, the Attorney General believes that the public area regulation is germane. Chairperson Patterson asked whether "parade" was defined in that section, and Mr. Valentine responded that he believed so, though it could be ambiguous, and that this legislation resolves in favor of not making an arrest. The chairperson suggested that the OAG conclusion was faulty. Chairperson Patterson then turned to section 106, dealing with dispersal orders, and read the provision into the record, asking the government witnesses where they found that it impinges on MPD’s ability to disperse crowds. Chief Ramsey responded that the phrase stating "significant number or percentage" is unclear. When Chairperson Patterson asked whether this could be cured by more specificity, Chief Ramsey replied that when you do not know when to act, that indecision can create problems. Again, Chairperson Patterson asked whether greater specificity could cure the problem, and Chief Ramsey answered that he did not know how one could count persons in the midst of a large demonstrations, but it would be better, and the department would be happy to discuss it further. Chairperson Patterson then referred to Chief Ramsey’s statement that non-permitted demonstrations are the majority, and asked for statistics on how many such events require officer presence. Chief Ramsey replied that he probably could pull some of those numbers—a lot of spontaneous rallies and events come up—but he would provide the numbers as best he could. Chairperson Patterson stated that what she was getting at was that if MPD’s argument is that the department would, under the law, be required to respond more frequently, it would be helpful to know how many such events MPD responds to today. Chief Ramsey responded that he would seek the information but noted that what is more troubling is the threshold of 50 people not requiring a permit. In today’s world, he said, many groups come together under some umbrella, with many groups having fewer than 50 participants. Chairperson Patterson then asked Mr. Valentine about proposed amendments, specifically a change in standard from "imminent likelihood" to "substantial probability." Mr. Valentine said the Executive had not yet directly commented on that issue, but that proof for showing imminence is much higher, so they would opt for a less restrictive standard. The major concern is that if something is really imminent, it may be too late to achieve control, hence the support for a lesser standard. Chairperson Patterson asked if that meant we would be relying on the discretion of an officer as to what would happen in the future, and Mr. Valentine answered that it is contradictory to some of the principles of the statute to mandate imminence by the statute, and there may be some instances where it is too late to act, if they must wait to hit the standard to keep from being personally sued. Chairperson Patterson asked whether they wanted an officer to be able to anticipate what is going to happen, as opposed to a brighter line of "imminence." Mr. Valentine said that this is a tough issue. From a litigation standpoint, he said they would opt for a lower standard, and also promised to look closer at the issue. Chairperson Patterson then asked about two of the other proposed amendments: enforcement and council review of regulations, and Mr. Valentine said he had no position on them. Chairperson Patterson then turned to City Administrator Robert Bobb, noting that in his opening statement he said that the bill would threaten public and officer safety, and obviously the Committee has no interest in doing that. She requested clarification. Mr. Bobb stated that the Executive would not want to see an environment that threatens safety, and referred to concerns that others had raised. When asked whether he could point to anything specific fueling his earlier criticism, Mr. Bobb said no. He said the Executive disagreed with some provisions, but more broadly said that the issues should not be codified but instead be part of the SOPs the police operate under. If they could be incorporated in regulations that would be brought back to the Council for approval that would be the Executive’s preference. Chairperson Patterson said that she understood that point, but noted that given what has transpired in the District in the past 4-5 years it is incumbent on the Council to set policy on constitutional rights and to do so as explicitly and clearly as possible. She stated that it would be useful if the Executive would like to provide written commentary with what is seen as operational versus what is seen as policy, so that the Committee could respond. She noted that one item he mentioned, precluding use of police lines in certain situations, has have been in use in the District for 30 years (Cullinane), and the problem was the department was not adhering to some of its operating procedures, which is why the Committee believes the issues should be codified. Chairperson Patterson then asked about Mr. Bobb’s view on the other amendments circulated, starting with the requirement that regulations should be sent to the Council for review. Mr. Bobb said he had no problem with regulations coming back to the Council; whether something is in statute or operational, all should be public, and the Executive has no objections to that. With respect to the use of restraints (wrist-to-ankle and use of flexicuffs), Chairperson Patterson asked whether there is any validity in that type of restraint – for what persons and in what circumstances? Mr. Bobb asserted that the police should have the ability to use those types of restraints in case events get out of hand. Chairperson Patterson then asked about the post-and-forfeit protections, and whether the Committee should make it explicit that no court can impose additional sanction or penalty. Mr. Valentine asked to give that issue more study, indicating that it would involve repealing provisions in other statutes where there is a penalty for posting collateral. He said the Attorney General does not have control over the list that statute refers to. In principal, he said, there should not be a collateral consequence. Chairperson Patterson then brought up the extent to which the MPD adheres to the FBI guidelines, and asked Mr. Bobb whether he had any thoughts on that point, to which he replied that he had no comment, as he had not reviewed the federal guidelines. Chairperson Patterson noted the MPD testimony objecting to having OCCR oversee police intelligence reporting, and asked if he saw any impediment to OCCR oversight. Mr. Bobb responded that the Inspector General would be better fit, particular since police review and complaints go to OCCR and there may be some conflict, but acknowledged that there should be some oversight. Chairperson Patterson asked where expertise resides, because it might not be with the Inspector General. Mr. Bobb acknowledged that OCCR would have more expertise, but he was looking at the issue from the standpoint of a potential conflict of interest. Chairperson Patterson stated that she would give this further study. Chairperson Patterson then said that she had no more questions, and asked to have the Executive look at the proposed amendments and the ACLU testimony and offer comments. Mr. Bobb added that the Executive is in support of the policies contained in the legislation, but preferred to see operational issues left to regulation.
The Committee on the Judiciary met on December 1, 2004 to consider and markup Bill 15-968. Present and voting were Chairperson Patterson and Councilmembers Ambrose, Brazil, and Evans.Chairperson Patterson introduced and briefly explained the purpose of Bill 15-968. Councilmember Ambrose spoke of her appreciation for Chairperson Patterson’s and the Committee’s work on the bill, as it addresses and corrects problematic actions taken by the MPD in recent demonstrations. In particular, Councilmember Ambrose expressed appreciation for the provisions in the bill banning "hogtying" (wrist-to-ankle restraints) and the strictures on undercover surveillance. Councilmember Ambrose then submitted several amendments to the committee print. She explained that her first amendment makes clear that MPD does not have the authority to grant or withhold permission for a first amendment assembly, but only to obtain information needed to facilitate such assemblies, and makes explicit that demonstrating without a permit is not per se unlawful. The amendment is contained in two parts: first, changing the "permit" process to a "notice" process; and second, making it explicit that demonstrating without a permit is not per se unlawful. The first part requires multiple changes, which are reflected in each of the amendments. Second, the amendments create time limits for the First Amendment Notice and Plan Process. Third, the amendments clarify that new restrictions may be imposed on a First Amendment assembly only in response to unanticipated actions or events during the assembly that were not caused by the permit-holders, counter-demonstrators, or police. Finally, Councilmember Ambrose’s fourth amendment permits the use of stands and structures as well as the sale of demonstration-related materials during First Amendment assemblies. Councilmember Ambrose explained that there have been some situations where MPD has attempted to close down an event because demonstrators brought a box to stand on, or were selling buttons and pins reflecting their free speech exercise. Finally, Councilmember Ambrose pointed out that these amendments were suggested by the ACLU of the National Capital Area, and expressed the hope that the amendments could be accepted as friendly and that the District can begin to move forward in serving as an example for the rest of the country on how to handle lawful, non-violent demonstrations in a peaceful and non-confrontational manner. Chairperson Patterson thanked Councilmember Ambrose, and pointed out that the nomenclature of "notice" was also recommended by the D.C. Bar Section, and it was something she wanted to put into the Committee had been raised about use of the word "notice," as it has separate meaning in administrative law, and that is why the Committee ultimately did not adopt the amendment in the Committee print. Councilmember Brazil then expressed concern about the notice and permit process, stating that he is very deferential to police, fire, and public safety officials. Councilmember Brazil explained that police want to meet with organizers of demonstrations in order to get an idea of size and scope so as to adequately staff the event, and stated that with this change, police will have to guess and may end up over- or under-staffing a protest. Chairperson Patterson explained that nothing in the bill precludes such conversations between police and protest organizers from taking place, and that both a permit or "notice" process assists organizers and police in planning; nothing prohibits that. Chairperson Patterson assured Councilmember Brazil that the permitting process that exists today will continue. Councilmember Brazil then pointed to Section 105(c) of the original committee print, which contains certain exemptions to the permitting process. Chairperson Patterson explained that those situations are ones in which permits are already not required: where there are less than 50 people, or where the gathering will not impede traffic. The provision simply underscores that in those situations, a permit is not required. Councilmember Brazil then posed the hypothetical of a hate organization, where a small group of people could spark a huge counter-demonstration, stating that while such expression should not be stopped, the police should be allowed to plan. Councilmember Evans added that he had had similar questions about Section 105(c), wondering whether the exemption was too broad and would take away advanced notice to the police department. Chairperson Patterson explained that it is a statutory exemption here, but such situations are currently not required to be permitted. Even if there was a large group, if it was not interfering with traffic or crowding out the sidewalks, there is no requirement for law enforcement permission. Councilmember Evans stated that his concern is that even with the best of intentions, not every person in a big group will be responsible, and that although in an ideal situation, people will stay on the sidewalks, the world is not ideal. Councilmember Brazil noted that a small 15-person event is different, but that if an event is being organized, it should have a permit. Chairperson Patterson suggested that in the United States of America, a person does not need anyone’s permission to have an event. Councilmember Brazil stated his concern is for when things get out of hand—why cut out the requirement? Chairperson Patterson answered that public space is public space, and no one needs any permission to be there. She acknowledged that the legislation is a "pushback" against things that have been seen in the city over time, and the key is that if something happens in public space that impinges on others, then the police may act – but, if not, the event is permissible. Councilmember Ambrose added even if we agreed to keep the "permit" language, she wasn’t sure she wanted MPD to make those judgments. Councilmember Evans pointed out that he had never seen an instance where a group was denied a permit, noting that sometimes several groups want to use the same space at the same time. Councilmember Brazil then expressed concern about gutting time, place, and manner restrictions. Chairperson Patterson recommended that he should either move an amendment now or at first reading to address his concerns. She explained that in the real world, organizations with big events get a permit to make sure they have access to their preferred venue, because if they show up impromptu, they would not have the street they want. Time, place, and manner restrictions mean two will not show up at once. Chairperson Patterson suggested not approving the amendment, but working on different "notice" and "permit" language between the committee meeting and first reading. Chairperson Patterson then turned to Councilmember Ambrose’s final amendment, to add new subsections in Title I to clarify that demonstrating without a permit is not an offense, to allow First Amendment Demonstrators to use reasonable stands and structures in their demonstrations, and to allow persons to sell demonstration-related merchandise without requiring a permit. Chairperson Patterson accepted this amendment as a friendly amendment and the Committee concurred. Councilmember Evans then turned to Section 107, relating to use of police lines. Chairperson Patterson explained that police would still be allowed to use police lines, they just would not be allowed to use police lines to encircle and and thereby entrap demonstrators at First Amendment assemblies as this and other police departments have done in recent years. Chairperson Patterson then moved for approval of the Committee Print of Bill 15-968, with leave for staff to make technical corrections. The Committee voted to approve the Committee Print by a vote of 3-1, with members voting as follows:
YES: Councilmembers Patterson, Ambrose, and Evans
Chairperson Patterson then moved for approval of the Committee Report on Bill 15-968, with leave for staff to make technical corrections. The Committee voted to approve the Committee Report of Bill 15-968 by a vote of 3-1, with members voting as follows:
YES: Councilmembers Patterson, Ambrose, and Evans
Attachment A: Bill 15-968 as introduced
Council of the District of Columbia
1350 Pennsylvania Ave. NW, Washington, D.C. 20004
To: All Councilmembers
The Council of the District of Columbia adopted Bill 15-968, the "First Amendment Rights and Police Standards Act of 2004" on December 21, 2004. The legislation was reported favorably out of the Committee on the Judiciary ("Committee") on December 1, 2004, followed by a first reading by the Council on December 7, 2004. Because the final version of Bill 15-968 contains several changes from the Committee Print, this report is presented in order to document those changes.
December 7, 2004, First Reading of Bill 15-968
by the Council
Title-by-Title Analysis and Rationale
Title I concerns First Amendment Assemblies.
Section 104. Beginning in section 104 and found throughout the bill, all references to a "permitting" process has been changed to "giving notice" and "approval of plan" by the Metropolitan Police Department. This amendment was drafted by the ACLU and offered by Councilmember Ambrose at first reading. The purpose of this change in nomenclature is to emphasize that people do not need "permission" to exercise their first amendment rights, while still providing for avenues for the police to respond to and plan for large gatherings and demonstrations. (Changes were also made in §S 105-108, and 209).
Concerns were raised about this change requiring a re-working of many section of regulations that may make reference to "permits" and other types of police planning for such events., However, statutes supercede conflicting regulations, so changes can be made to square away these differences.
Section 108. At first reading, concerns were raised about the limitation of use of police lines to encircle demonstrators, mainly centering around MPD needing to protect a smaller group from counter-demonstrators. Thus, the clause was added at the end, reading "provided, however, that this section does not prohibit the use of a police line to encircle an assembly for the safety of the demonstrators."
Section 112(b)(1). At first reading, Councilmember Brazil proposed an amendment to strike "justify" from the requirement that MPD shall document an instance where an arrestee is not released within 4 hours. He felt that "justify" was too high a standard, but agreed to change the word to "explain," to lessen the burden on police reporting.
Section 114(c). At first reading, Councilmember Brazil proposed an amendment to strike the word "enhanced" from the requirement that MPD allow media access to First Amendment assemblies. Section 114 is intended to ensure that the media has as much access as the general public and to provide for additional access to the media, consistent with public safety. Moreover, the credentialing process established in subsection (a) is intended to be inclusive, content-neutral, and expeditious. Also, it is imperative that MPD recognize credentials issued not just by itself, but also by other jurisdictions.
Section 116(a). At second reading, Councilmember moved an amendment to allow police to wear riot gear to assemblies only when there is a danger of violence. As originally drafted, the provision would only have allowed police to wear riot gear if violence was imminent as decided by the officer on the scene. This was designed to address police using riot gear as an intimidation tactic. However, in response to concerns about police discretion and readiness where there is prior knowledge or intelligence that an assembly will be violent, this provision was amended to allow police, acting on such knowledge, to arrive in riot gear.
Section 142. This section would have repealed 24 DCMR 707.7, which stated that no parade shall be conducted without a permit. However, this section was deleted at first reading, due to concerns by Councilmembers that deleting that provision of the DCMR would have farther-reaching consequences than just relating to First Amendment assemblies.
Concerns also existed over whether mentioning "parade" at all in reference to the types of activities encompassed by First Amendment assemblies would conflict with Chapter 7 of Title 24 of the DCMR, which deals with all types of parades. However, the intent of this legislation was to make clear that it is not an offense, in and of itself, to parade without a permit as part of a First Amendment assembly. At second reading, an amendment was passed to amend Title 24 .
Section 705.1 of the DCMR to state that for the purpose of that chapter, "parade" shall not include a first amendment assembly.
Title II concerns police investigations of First Amendment activities.
Section 202(6). This definition of "legitimate law enforcement objective" was amended at first reading to address concerns of racial profiling in investigations. The amendment was drafted by the ACLU, offered by Councilmember Chavous, and accepted by Chairperson Patterson as a friendly amendment. The definition was amended by adding the phrase at the end, "provided that a person shall not be considered to be pursuing a legitimate law enforcement objective if the person is acting based upon the race, ethnicity, religion, national origin, lawful political affiliation or activity, or lawful newsgathering activity of an individual or group."
Section 202(11). The definition of "reasonable suspicion" was amended similarly to section 202(6), at first reading, to address concerns of racial profiling. A sentence was added at the end to read, "A suspicion that is based upon the race, ethnicity, religion, national origin, lawful political affiliation or activity, or lawful newsgathering activity of an individual or group is not a reasonable suspicion."
Section 212(d) and section 241. At first reading, the auditor of MPD's investigations and preliminary inquiries was changed from the Office of Citizen Complaint Review to the Office of the Inspector General. At second reading, the auditing function was amended to give this authority to the Office of the District of Columbia Auditor.
Title III concerns post-and-forfeit procedures, display of identification by MPD officers, and a private right of action.
Section 321. This section, concerning a private right of action, was amended at first reading by Chairperson Patterson, due to concerns that the provision in the committee print would allow for cumbersome and frivolous litigation against the city for procedural errors, as opposed to true harms. Moreover, injured persons may seek redress already under federal civil rights statutes. Thus, section 321 was amended to state that the Act is intended to protect persons exercising First Amendment rights, and that the provisions there under may be relied upon in actions alleging violations of statutory or common law rights.
Title IV contains the fiscal impact statement and effective date of the Act.
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