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Government and People
Council of the District of Columbia
1350 Pennsylvania Avenue, NW
To: All Councilmembers
From: Kathy Patterson, Chairperson, Committee on the Judiciary
Date: March 11, 2004
Subject: Report on Investigation of the Metropolitan Police Department's Policy and Practice in Handling Demonstrations in the District of Columbia
TABLE OF CONTENTS
IV. EMERGING ISSUES
The investigation by the Committee on the Judiciary into the policies and practices of the Metropolitan Police Department in handling demonstrations has found:
The Committee recommends legislation setting out clear guidelines for the Metropolitan Police Department with regard to mass demonstrations and police surveillance and infiltration of political organizations (see page 117). The Committee's findings and recommendations follow, and are also contained in bold type within the text of the report.
Case Study: April 2000 and the Convergence Center
Case Study: The 2001 Inauguration, Pepper Spray, and MPD Self-Policing
Case Study: The Pershing Park Arrests, September 2002
Case Study: The Pershing Park Investigation
Emerging Issues: Surveillance and Infiltration of Demonstration Organizations
Emerging Issue: Failures in Leadership Accountability
Emerging Issue: Departing from Best Practice in Managing Demonstrations
Conclusion: The Need for Statutory Guidelines
The Committee on the Judiciary initiated an investigation into the policies and practices of the Metropolitan Police Department in handling demonstrations based on police actions that appeared to violate the U.S. Constitution starting in April 2000 and continuing into early 2003. The Committee stepped in with an investigation because other branches of government – the U.S. District Court and the Executive Branch of the District government, respectively -- have not been in a position to, or failed to act timely, on matters before them. Lawsuits filed in U.S. District Court in the wake of questionable police actions in April 2000 had not yet even gone to trial four years after the fact. The Williams Administration has continually voiced its support for police actions that appeared to others to clearly violate the U.S. Constitution as well as D.C. law and Metropolitan Police Department regulations.
With regard to such matters the Council of the District of Columbia has an added responsibility: all of the same law enforcement issues were raised in the 1970s. As recounted in the Context section of this report, the massive May Day 1971 anti-war demonstrations in Washington led to two major lawsuits against the District based on charges of wrongful arrest and police overreactions. Accusations of domestic spying against D.C. political leaders by local and federal law enforcement were raised in the same period of time. In the 1970s and 1980s the Council and the courts relied on the Executive Branch to right the wrongs that were proven on the public record. In 2004 the Council cannot make the same assumptions and the same mistakes of omission that were demonstrated by Council predecessors in the earlier era.
The Committee approved the investigation, which authorized the issuance of subpoenas, by resolution on April 28, 2003. The committee found that "allegations made on the public record concerning preemptive actions in April 2000, wrongful arrests made on September 27, 2002, and excessive use of force in April 2003 by the Metropolitan Police Department warrant the conduct of an investigation by the Committee to ascertain the validity of the allegations."
The resolution set out issues for examination including:
In June the Committee secured the services of two special counsel to assist in the investigation: Mary Cheh, professor of law at the George Washington University Law School and an expert in constitutional law and criminal procedure, and David Schertler, an attorney in private practice and former head of the homicide division of the Office of the U.S. Attorney for the District of Columbia. As the investigation proceeded over the summer Mr. Schertler's law practice demanded his full time and his participation in the investigation ceased.
The Committee also set out to evaluate MPD's polices and practices, generally, in handling and preparing for demonstrations. To assist this process, the Committee reviewed all of MPD's related written policies, researched relevant constitutional case law, related legislative history, and national best practices. To get a better understanding of the nature of the current complaints against MPD in this area, the Committee reviewed all of the relevant litigation currently pending against the city.
The investigation proceeded through the use of case studies including the alleged preemptive closing of demonstrators' headquarters, "the convergence center" on April 15, 2000; the allegation of an undercover officer using pepper spray against demonstrators during the 2001 inauguration parade; the arrest of nearly 400 persons at Pershing Park in September 2002; and the MPD investigation into those arrests. The case studies were presented at the hearings and are included in this report.
The Committee issued a series of document subpoenas beginning in July and reviewed over 5000 pages of documents. The Committee began conducting a series of oral depositions in executive session in the fall and issued subpoenas for written depositions to MPD Chief Charles Ramsey and Department of Fire and Emergency Medical Services Chief Adrian Thompson. On December 4, 2003, the Committee met in executive session under Committee and Council rules and reported out of executive session certain documents, testimony and information that are now part of the public record.
The Committee held two days of investigative hearings on December 17 and 18, 2003, and information placed on the record in the hearings as well as information gleaned from the depositions and subpoenaed documents is reflected in this report. The Committee met again in executive session on March 4, 2004 and voted certain other information onto the public record and that information, also, is included in this report.
In addition to the case studies presented in the hearing and in the sections that follow, three other, related issues emerged from the Committee's work: (1) the surveillance and infiltration of political organizations by the Metropolitan Police Department; (2) a pattern and practice of misrepresentation and evasion on the part of Chief Ramsey and others in senior command; and (3) a serious weakening in the Department's professionalism in managing controversial political demonstrations, giving rise to concerns that public safety and First Amendment rights could be at risk in future events. Each of these is addressed in the Emerging Issues section of the report.
It should be noted that, while the investigation's authorizing resolution referenced MPD's handling of "demonstrations," the majority of the Committee's work has been focused on a small number of demonstrations where MPD has used tactics that merit Council review. The Committee primarily examined MPD's policies and practices handling anti-globalization and anti-war demonstrations since April 2000. Since January 2000, MPD has managed approximately 500 demonstrations. According to testimony, in 2003 alone, MPD managed 291 demonstrations, and there were permits for only 49 of them. The vast majority of demonstrations in the nation's capital take place without incident and are handled well by MPD. When there has been a breakdown in policy and procedure, it has occurred during the more provocative demonstrations where police believe there is a likelihood of civil disobedience and the potential for civil disturbance. These are the demonstrations that the Committee has reviewed in detail.
It should also be acknowledged that the Committee, in its criticism of MPD's handling of demonstrations in recent years, is not ignoring the challenges created for law enforcement by large protests that include participation by individuals prone to breaking the law. Much has been made of the violence that occurred during the World Trade Organization meetings in Seattle in November 1999 – violence largely the result of poor planning on the part of the police department and other government entities. In the wake of public concern over the management of mass demonstrations following Seattle, the Metropolitan Police Department had clear responsibility to prepare for subsequent mass demonstrations to the best of its ability.
The Committee is also cognizant of the specific problems that have been faced by MPD during anti-globalization mass demonstrations in the District in recent years. For example, Lt. Jeffery Herold, who commands the Special Operations Division's Security Operations Branch, testified that in April 2000, a burning dumpster was "hurled at a police line." He also testified about a group that broke off during the main demonstration and "broke into the dorms at George Washington University, emptied these dorms of all furnishings, put them in the street, blocked streets to prevent police access." Sergeant Keith DeVille, who supervises the civil disturbance training unit, testified:
The United States Attorney's Office sought to prosecute twenty-six arrests made during the April 2000 demonstrations, including nine charges of possession of implements of a crime conspiracy, eleven unlawful entry charges, one charge of dumping, three charges of assault on a police officer, one charge of theft, and one charge for possession of a molotov cocktail. The individual arrested for possession of a molotov cocktail entered into a plea agreement and was sentenced to time served, a term of supervised probation and psychological treatment and counseling in June 2001. In addition, the Office of Corporation Counsel papered 54 misdemeanors as a result of the arrests made on September 27, 2002.
Indeed, the Committee does not take issue with MPD responding to actual illegal activity with arrests. But there have been instances in recent years when MPD has taken preemptive action based on the potential for illegal activity, or on provocative political speech, rather than on law breaking. As Art Spitzer of the American Civil Liberties Union of the National Capital Area testified:
It is these latter instances cited by Mr. Spitzer that are of concern to the Committee, and that prompt the Council to review MPD's policies and practices in handling demonstrations.
What follows in this report are sections that provide both the national context and the historical context in the District of Columbia including a discussion of MPD's handling of the 1971 May Day demonstrations and resulting litigation. The report includes sections on the case study of the closing of the convergence center; the case study of the pepper spray incident as an example of MPD failure at self-policing; the case study of the Pershing Park arrests in September 2002; and a section detailing the department's investigation of the Pershing Park arrests, with Committee "findings" at the end of each section. The three "emerging issues" noted above are then addressed, followed by a conclusion to the report that sets out the Committee's recommendation for legislation to provide statutory guidelines on handling demonstrations and political surveillance. The report includes a series of appendices with additional background on these issues.
The Judiciary Committee has been assisted in this investigation by George Washington University law professor Mary Cheh, who served throughout as Committee special counsel, and to whom the Council owes its profound thanks. The Committee has also been ably assisted by John Hoellen, assistant general counsel in the Office of the General Counsel. The Committee staff lead for the investigation has been Amy Mauro with staff assistance also provided by Tameria Lewis and Committee Clerk Renee McPhatter. The panel was also assisted by two law school interns, Josh Harris and Alina Morris, and the Committee extends its thanks to them as well.
Obstacles to the investigation
In conducting this investigation, the Committee's work has been hindered throughout by the refusal of the Williams Administration to respond timely and completely to Judiciary Committee subpoenas. From the issuance of the first subpoena in July 2003 to date the Committee has granted extensions of time, rescheduled depositions, and granted requests that information not be placed on the public record though such action is within the Committee's discretion. Beyond the lack of timeliness and completeness, the Williams Administration has consistently withheld information, citing "law enforcement privilege" even though such privilege is not relevant to a Council investigation. The lack of respect for the law evidenced in the Williams Administration's actions with regard to this investigation mirror the Committee's findings with regard to the actions of the Metropolitan Police Department in violating constitutional rights as well as D.C. law.
Prior to the December hearings the Committee chair reiterated the need for certain documents included in subpoenas but provided only in heavily redacted form. In an exchange of emails, the Office of Corporation Counsel, speaking on behalf of the Williams Administration, raised a concern that if materials are provided to the Committee they could be sought and received by parties in litigation against the District. While the Council General Counsel opined that the OCC was in error as a matter of law in this instance, Councilmember Patterson agreed to present clarifying legislation to the Council to address the administration's concern. That legislation, the "Disclosure of Information to the Council Emergency Act of 2004," was approved on an emergency basis by the Council on February 3, 2004.
Notwithstanding this good faith action by the Council, the Williams Administration continued to withhold documents from the Committee. Having no other option, the Council on February 17, 2004, approved a resolution authorizing the general counsel to go to D.C. Superior Court to seek enforcement of the document subpoena. In moving the resolution to enforce the document subpoena, Councilmember Patterson noted the record of the Judiciary Committee's request, the receipt of heavily redacted documents, and the assertion of privilege by the administration, an assertion rejected by counsel. The Council approved the resolution unanimously.
At close of business the same day the Office of Corporation Counsel provided additional documentation to the Committee, far short of the total of five documents for which subpoena enforcement was approved. In good faith, again, Committee Chair Patterson reviewed the documentation, and, again, reduced the amount of material required for completion of the investigation, and offered to refrain from court action if certain materials were made available to the Committee. Following the intercession of City Administrator Robert Bobb on March 4, 2004, certain additional documents were made available, though the administration continued to assert "law enforcement privilege" with regard to items redacted. The information newly available permitted the Committee to complete its report, while continuing to consider whether the items withheld constitute sufficient ground to seek court action to enforce the subpoenas.
It is the Committee's view that the failure to respect the Council's authority throughout eight months of an investigation is part of a larger whole that includes the violation of constitutional rights of political activists through infiltration, surveillance, preemptive actions and wrongful arrests. Failing to acknowledge the rights and responsibilities of the elected legislature is not as egregious as bringing physical and emotional harm to District residents, but it is nonetheless an egregious executive branch failure on the part of Mayor Williams and his subordinates.
II. CONTEXT FOR THE COMMITTEE INVESTIGATION
The Judiciary Committee has reviewed Metropolitan Police Department policy on demonstrations against a national backdrop of efforts by law enforcement agencies, state and local officials, and the Bush Administration to change both law and practice in the name of safety and security, all in the continuing shadow of the September 11, 2001 terrorist attacks. Local and federal actions to monitor, investigate, and in some instances prohibit activities long protected by the First Amendment have prompted widespread concern over the potential negative impact on civil liberties.
While acknowledging that there are at times tradeoffs between public safety and freedom of speech and assembly, the Committee concurs with the view of the Gilmore Commission (the congressionally appointed Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction) that what is needed today is "a long-term sustainable approach to security that protects not just lives but also our way of life." [Appendix E: Civil Liberties in a Post-9/11 World]. The Gilmore Commission, in its final report in December 2003, revisited the views of the original framers of the U.S. Constitution, who "recognized that civil liberties and security are mutually reinforcing." The Commission continued: "Security clearly ensures the freedom to exercise our liberties, but it is also true that the exercise of our civil liberties and our way of life contributes to our strength and security."
Through legislation and litigation U.S. police entities, including the Federal Bureau of Investigation, are blurring the distinction between intelligence and law enforcement as an outgrowth of the war against terrorism. This important and wide-ranging development includes questioning the continuing validity of the requirement, heretofore, that criminal activity or the reasonable suspicion of criminal activity must precede police use of certain types of investigation. Earlier prohibitions on creation of dossiers on individuals based on their political activities have been weakened in the name of an expanding definition of "law enforcement." Some police departments apparently are following the lead of the FBI in using "disruption" techniques, borrowed from intelligence practices overseas and applied locally to prevent or minimize protest activity. Some local jurisdictions, as well as the Secret Service, have used buffer or "no protest" zones at public events as a security tool, a practice that has been challenged for having a chilling effect on civil liberties.
On Sunday, February 8, 2004, the Washington Post ran a 3-paragraph wire service story from Des Moines, Iowa, about a federal court ordering Drake University to refrain from disclosing information about a federal investigation into an antiwar seminar held on the college campus the previous fall. Des Moines press accounts described four antiwar activists called before a federal grant jury. The local United States attorney declined to comment on the nature of the investigation. Also targeted: the National Lawyers Guild, which has participated in scores of lawsuits against police departments around the country based on alleged violations of constitutional rights of political activists. Within a matter of days the prosecutor clarified that the sole issue under investigation was allegations of trespassing on National Guard property, leaving unclear why the federal prosecutor was interested in an on-campus political rally.
News stories like the one from Iowa are part of the national context within which the Judiciary Committee has conducted its investigation of police practices here. That context includes changing policies throughout the country both prior to, and in the wake of, the September 11, 2001 terrorist attacks. It includes litigation arising from major events that drew protests and police responses in Seattle, San Francisco, Philadelphia, Los Angeles, and – most recently – Miami.
The national backdrop includes a movement by law enforcement to move away from policies adopted in the aftermath of controversies over police use of "Red Squads" to infiltrate political organizations in the 1960s and 1970s. Local officials in Chicago and New York City have recently petitioned the courts to rescind or weaken orders governing police activities seen to infringe on civil liberties. That movement was given new energy after September 11 through enactment of the federal Patriot Act and other policies by the Department of Justice and Federal Bureau of Investigation that have had the effect of limiting the exercise of free speech and free assembly. This section surveys the landscape for those specific events that make up the wider national debate.
Protests & Litigation
On April 28, 1992, a southern California jury acquitted Los Angeles police officers in the beating of Rodney King. The next day a demonstration in downtown San Francisco led to several violent injuries. The city reacted by imposing restrictions on demonstrations in the downtown area. Part of the mayor's order required officers to, among other things, implement a policy of custodial arrests instead of citations in order to disperse gatherings whenever the officer had reason to believe the gathering would endanger, or was likely to endanger, persons or property. The next day a group assembled in downtown San Francisco. Police ordered dispersal. As people moved away from the central area they were surrounded and arrested. Between four and five hundred persons were arrested; some were held up to 55 hours.
A class action lawsuit, Collins v. Jordan, was filed in U.S. District Court charging the city, county, mayor, police chief and individual police officials with violating the First and Fourth Amendment rights of those gathered in the downtown area and subsequently arrested. The court found that the earlier violence fell far short of "the type of occurrence that could have led any reasonable official to believe that it would be constitutional to impose a city-wide ban on all demonstrations and that the law to that effect was clearly established." The Collins decision underscored earlier decisions that unlawful conduct must be addressed after it occurs, and that acting before demonstrators broke a law was presumptively a violation of First Amendment rights.
In his deposition before the Judiciary Committee, Assistant Chief Alfred Broadbent said, "everything changed with Seattle." He referred to the World Trade Organization meetings in Seattle, Washington from November 29 to December 3, 1999. Broadbent assumed his duties overseeing the MPD's special services in January 2000. He told the Committee that an immediate task was preparing for the meeting here of the International Monetary Fund and World Bank in anticipation that the anti-globalization protests evident in Seattle would move next to the nation's capital for the IMF-World Bank meetings. The international organizations had held twice-yearly meetings in Washington for several years.
In his testimony before the Committee in December, Chief Broadbent referred to the events in Seattle:
Because the events in Seattle loom large in the Metropolitan Police Department's approach to demonstrations, particularly anti-globalization demonstrations, the committee sought to gain a better understanding of what actually took place in December 1999. What emerges from the record in several after-action reports is a complicated blend of poor planning, a local police force overwhelmed by the number of anti-globalization activists, a small number of violent actions by a minority of demonstrators, and broad overreaction by both civilian and police authorities.
The WTO conference "became one of the most disruptive events in Seattle's history" according to the Seattle City Council's World Trade Organization Accountability Review Committee final report. That report describes what happened in Seattle as "the disastrous week of tear gas, burning dumpsters, and injured citizens." The Seattle Police Department's after-action report said there were 631 arrests associated with the demonstrations, most of them for obstruction of traffic and failure to disperse. Local newspapers put the financial costs at $3 million in property damage and $17 million in lost sales during the 5-day conference.
The Seattle Accountability Review Committee report notes that prior to the WTO decision to meet in Seattle, local officials were briefed about "the riots that occurred at the 1998 WTO Conference in Geneva," but appeared to dismiss that information. "If SPD believed the threat assessments," the report notes, "then they would know that 600 commissioned police officers would not be enough to adequately monitor 50,000 demonstrators, much less prevent violent activities and/or arrest and detain those who participated in civil disobedience."
The Review Panel found that:
With specific reference to the police department, the report concludes: "Chief Stamper's failure to provide leadership and to ensure fiscal accountability contributed to the lack of proper planning, which placed the lives of police officers and citizens at risk and contributed to the violation of protestors' constitutional rights."
More than a dozen lawsuits resulted from the events in Seattle. One case brought against King County by two individuals who were pepper sprayed while seated in their car was settled at a cost of $100,000 for the two plaintiffs. Two other litigants, also claiming to have been pepper sprayed by police, settled for $2,500 each. Several press photographers settled for from $25,000 to $32,000 each in cases arising from use of tear gas and, in one instance, a photographer being knocked to the ground and arrested. In the major class action arising from the WTO conference events, Victor Menotti, et al., v. City of Seattle, et al., a U.S. District Court essentially sustained the Seattle Police Department's use of "no-protest zones" and the plaintiffs appealed that decision to the 9th Circuit Court of Appeals where the case is pending. The same court required the department to reform its policies for public disclosure of information. In terms of other outcomes from the Seattle demonstrations: the police chief resigned under fire and the mayor failed to gain reelection two years later.
Political Conventions: Los Angeles and Philadelphia
In the weeks leading up to the Democratic National Convention in Los Angeles in August 2000 a group of political activists including unions sought an injunction to prevent the Los Angeles Police Department from enforcing a "secured zone" of more than the 8 million square feet around the Staples Center, site of the convention. The city and convention planners proposed that all demonstrations take place in a protest site some 260 yards from the center, based on security concerns. In Lawyers Guild v. City of Los Angeles, the U.S. District Court granted the injunction, finding that "the sidewalks and streets contained within the designated 'secured zone' are traditional public fora for the exercise of First Amendment rights." The Court also found that municipal regulations were unconstitutional because they constituted a lengthy pre-filing requirement and gave officials "unbridled discretion" on an "impermissible content-oriented basis."
In a later settlement in Los Angeles, journalists who had been hit with police batons and rubber bullets during the convention received damages and the Los Angeles Police Department agreed to policies assuring journalists the right to cover events even after police issue orders to disperse.
A lawsuit, International Action v. the City of Philadelphia et al., stemming from the 2000 Republican National Convention in Philadelphia led to a federal court order in July 2003 that Philadelphia refrain from enforcing regulations on permits for special events when marches, demonstrations and rallies are protected by the First Amendment.
A Washington Post report from Miami published November 21, 2003, stated, "Police in riot gear fired rubber bullets and canisters of chemical spray Thursday to disperse thousands of demonstrators gathered in the shadow of downtown skyscrapers to protest the proposed formation of a Western Hemisphere free-trade zone." Diplomats from western countries gathered in Miami for trade discussions, hosted by the Bush Administration, and the Miami community reportedly sought to display its suitability as a possible permanent home for a new trade organization. The Congress approved $8.5 million in federal funds to support the meeting, including reimbursements for security costs.
In the days following the Miami meetings a host of national organizations called for Justice Department and/or Congressional inquiries into "the massive and unwarranted repression of constitutional rights and civil liberties" according to a letter to Attorney General John Ashcroft from AFL-CIO President John Sweeney. The United Steelworkers of America called on the U.S. Congress to investigate the police department and the Sierra Club asked the Department of Justice for an investigation. The AFL-CIO asked both DOJ and the state of Florida to investigate the "intimidation and abuse of peaceful protesters."
In testimony before the Judiciary Committee in December, AFL-CIO chief international economist Thea Lee described the planning by 90 organizations concerned with "global justice issues" for a week of seminars and other events, culminating in a march and rally on November 20. She said the labor organizations and other groups estimated their presence would be between 10,000 and 20,000 persons, but police repeatedly estimated that demonstrators would total up to 100,000. That exaggeration, she said, created concern for the public and permitted the police jurisdictions to essentially "over-prepare" and create an atmosphere of hysteria.
She said the AFL-CIO negotiated for months over arrangements for the permitted march and rally, taking particular concern for the comfort of senior citizens – 25 busloads of seniors were expected at the rally at the Bayside Amphitheater sponsored by the Alliance for Retired Americans. That morning, however, she said they awoke to a "militarized zone" with the entrance to the amphitheater blocked by tanks and water cannon. Buses were prevented from dropping the seniors off near the event, as previously arranged while other buses of seniors from throughout Florida were kept well away from the downtown area. She said previously credentialed AFL-CIO marshals were told their credentials were invalid and participants "were denied access to rental toilets and 10,000 bottles of water we had purchased."
After the rally she described actions by police lines to move rally participants away from the amphitheater down a side street. "Police in riot gear then began firing rubber bullets directly into the crowd." The experience in Miami, she said, "was something beyond any of the previous demonstrations" at trade meetings around the country. While noting the presence of many courteous and professional law enforcement officers, she said, "our quarrel is with police management and the top city officials." The leadership, she said, was responsible for "obstruction; intimidation; harassment; excessive, unnecessary and unprovoked use of force; possibly illegal search and seizure, and arrests."
As of mid-December the ACLU had gathered more than 130 reports of protester injuries, including 19 confirmed head injuries, and indicated plans to file at least three and as many as a dozen lawsuits against the Miami-area police departments, cities, and counties.
Police Department Retrenchment
In recent years as national and local groups have challenged law enforcement actions during demonstrations, police departments have sought to remove rules and regulations that have governed their surveillance of political organizations since the 1960s when police "Red Squads" were faulted for Constitutional violations. Prior to the September 11, 2001 terrorist attacks, police officials in Chicago and New York City sought, and eventually succeeded, in amending procedures agreed to in the wake of domestic spying scandals in the 1960s and 1970s.
Antiwar protesters and others filed suit in 1974 accusing the Chicago Police Department and its so-called "Red Squad" of violating the rights of antiwar groups, religious activists, and others based on the content of their speech. A U.S. District Court consent decree resulted, limiting domestic surveillance unless an organization had demonstrated actual criminal intent. In 1999 the city of Chicago and Chicago Police Department asked the U.S. District Court to relax the restrictions negotiated in the 1970s, and in January 2001 the 7th Circuit Court of Appeals ruled that the regulations were an impediment to law enforcement.
In March of that year the U.S. District Court accepted a modified decree that acknowledges First and Fourth Amendment protections, essentially approves "reasonable time, place and manner regulations supported by an appropriate governmental interest," and protects against "government intrusion not justified by an appropriate governmental interest or function." The decree enjoins the Chicago Police Department from violating First Amendment guarantees adding "nothing shall enjoin reasonable investigative or law enforcement activities that are permitted by the First Amendment."
A departmental general order issued in October 2001 restates the language of the court decree. The policy statement includes:
The 2001 general order permits "investigations directed toward First Amendment-related Intelligence" that are not part of a criminal investigation with the approval of a senior official, with a time limit of 120 days, and based on having "a proper law enforcement purpose." Examples cited: (1) someone hands out fliers supporting the bombing of targets in the U.S. and an investigation pursues the source of the literature; (2) a website promotes violence in furtherance of pro-life goals and the investigation monitors the number of hits the website receives. The policy permits infiltration approved by the Superintendent of Police and, if permitted longer than 30 days, progress reports every 30 days. The General Order includes another example of a situation that does not warrant investigation:
New York City
The U.S. District Court in New York City ruled in February 2003 that "fundamental changes in the threats to public security" warranted modifying another long-standing court order that restricted the New York Police Department's ability to conduct surveillance of political groups. A 1971 lawsuit, Handschu v. Special Services Division, charged harassment of political organizations by the New York Police Department's "Red Squad." In 1972 the U.S. District Court for the Southern District of New York held that the department's intelligence gathering operations involving political activists did constitute injury by creating a chilling effect on First Amendment activities. While noting that informers and infiltrators constituted valid techniques, the court placed restrictions on their use. After that decision the parties negotiated a consent decree known as the Handschu Guidelines.
The federal judge last year relaxed but did not terminate the Handschu Guidelines, indicating that the earlier agreement's constitutional protections "are unchanging." The court required the department to adopt internal guidelines, and the department's "Guidelines for Investigations Involving Political Activity" were issued later in the year. According to the cover memorandum issued to all commands in the department, "These guidelines eliminate many of the restrictions of the former Handschu Guidelines and provide the Department with the authority and flexibility necessary to conduct investigations involving political activity, including terrorism investigations."
As is the case with the Chicago policies, the NYPD guidelines state that "matters investigated be confined to those supported by a legitimate law enforcement purpose" and may be initiated "in advance of unlawful conduct." The "general principles" include:
The guidelines also stipulate that "investigations shall be terminated when all logical leads have been exhausted and no legitimate law enforcement purpose justifies their continuance."
More recently, however, the same federal judge criticized the New York Police Department for interrogating war protesters and brought the department's surveillance policies back under court review.
The actions in Chicago and New York City to modify consent decrees dating to the 1970s that placed limits on police actions may represent a first step toward loosening similar law enforcement regulations and oversight in other cities. A draft of the federal Domestic Security Enhancement Act of 2003, also known as "Patriot Act II" prepared for introduction in the U.S. Congress, includes a provision that would discontinue all existing consent decrees that place limits on police department surveillance of political organizations on the grounds that such restrictions impede terrorism investigations.
The Congress acted in a similar fashion several years ago to reverse court mandates governing conditions at correctional facilities. The Prison Litigation Reform Act of 1996 which allows court orders addressing past practices that were deemed to be unconstitutional to be lifted unless a correctional facility continued to violate prisoners' constitutional rights. This was the case with regard to the Central Detention Facility (the D.C. Jail) which had been under court order for years until the court oversight, including a population cap and annual health and sanitation inspections, ended as a result of the new federal law. If Congress enacts "Patriot Act II" it would have similar effect: dismantling court oversight of police departments that were challenged in court in the past for violating First and Fourth Amendment rights.
Federal Activities/California Guidelines
The intersection of national anti-terrorist planning and actions with local police practices with regard to demonstrations is evident in both a Federal Bureau of Intelligence directive, and issuance of guidelines on political surveillance issued by the California attorney general.
An account in the November 23, 2003, New York Times detailed a memorandum sent to local law enforcement officials by the Federal Bureau of Investigation, marking the first corroboration of "a coordinated, nationwide effort to collect intelligence regarding demonstrations." The memorandum, according to the Times, urged local police to "be alert to these possible indicators of protest activity and report any potentially illegal acts" to the Bureau's joint counterterrorism task forces throughout the country.
One month earlier California Attorney General Bill Lockyer moved in a different direction and issued guidelines to police and sheriffs' offices throughout the state recommending limits on law enforcement surveillance and infiltration of political organizations. The guidelines, entitled "Criminal Intelligence Systems: A California Perspective," were a response to controversy and litigation that arose from law enforcement actions targeting antiwar activities. One such event occurred in Oakland on April 7, 2003 at the start of the war in Iraq. According to press accounts, police seeking to disperse demonstrators fired wooden dowel projectiles, bean-bag rounds and other "less than lethal" ammunition into a crowd of demonstrators at the Port of Oakland.
In June two lawsuits were filed in U.S. District Court seeking monetary damages and court ordered-policy changes to preclude such actions in the future. The American Civil Liberties Union claimed that the Oakland Police Department took such drastic action against unarmed demonstrators based on information provided by the California Antiterrorism Information Center within the state attorney general's office, which the ACLU contended was an illegal assault on First Amendment rights. In response to the Oakland case and other instances in which local authorities apparently used "tips" from the state-level anti-terrorism office against political activists, in October Lockyer issued the new guidelines in an apparent effort to draw "the appropriate balance between public safety and fundamental rights such as free speech, assembly, and privacy."\
A copy of a general order dated October 24, 1863 from the Office of Superintendent of Police in Washington, D.C. to the Sergeants of the force announced an upcoming procession in the city. The general order stated:
This snapshot from the history of demonstrations in the nation's capital is illustrative of one of the Committee's most significant findings – that of history repeating itself. Over many years, the District of Columbia has experienced the ebb and flow of judicial and legislative scrutiny of the police department and its handling of First Amendment issues. In particular, the Judiciary Committee's investigation has raised constitutional issues concerning the handling of mass demonstrations and the use of undercover officers to monitor political activists that are almost identical to those that were examined by the courts and the Council during the Vietnam war era thirty years ago. The following is a brief summary of this local historical context and how it relates to today's debate.
Handling Mass Demonstrations
As noted earlier in this report, MPD Assistant Chief Alfred Broadbent testified that after the protests against the World Trade Organization in Seattle in 1999, "the face of demonstrations in this country changed forever." This sentiment was repeated several times by MPD officials interviewed by the Committee, including Chief Charles Ramsey, who used anti-globalization activists' threats to "shut down the city" as a justification for why anti-globalization demonstrations in recent years have demanded preemptive treatment from MPD.
In fact, throughout its history, Washington, D.C. has hosted demonstrations whose organizers have threatened to disrupt the city in different ways, and in several instances, MPD's reaction has tested the constitutionality of its policies and practices for handling mass demonstrations. As Lucy Barber, author of Marching On Washington: the Forging of An American Political Tradition, testified before the Committee, anti-globalization demonstrators' threats to shut down the city do not represent a new paradigm in the history of demonstrations in this country. While the anti-globalization movement may represent a new sophistication in its level of organization and use of technology, its anti-authoritarian rhetoric and reliance on civil disobedience are not without precedent.
The most obvious parallel in recent history can be found in the May Day demonstrations in 1971 that protested the Vietnam war. Prior to those demonstrations, organizers similarly threatened to shut down and disrupt the city with acts of civil disobedience. In 1971, MPD preemptively dispersed the demonstrators who had converged on Haines Point the night before the major demonstrations; rounded up thousands of individuals, including uninvolved bystanders, and arrested them without cause; and held those arrested for unreasonable periods of time under harsh and unsanitary conditions. In addition, the police chief at the time suspended MPD's use of the field arrest form, so demonstrators were arrested without any documentation of the circumstances. Costly and protracted lawsuits were filed against the city following the May Day arrests that alleged unconstitutional policies and practices.
A review of the May Day era litigation reveals striking similarities between MPD practices that were found to be unconstitutional in the 1970s and MPD practices used to handle anti-globalization demonstrations in recent years. In the case Lyle Tatum, et al v. Rogers C.B. Morton, et al, the United States District Court for the District of Columbia found MPD's arrest of 144 individuals demonstrating in front of the White House on April 25, 1971 to be unconstitutional. MPD Inspector William Trussell testified that the demonstrators were "apparently a law abiding group and there was no indication there would be any police problems at all really." Two other officials also testified that there was no violence before the establishment of the police lines.
Nonetheless, Inspector Trussell "concluded there was justification for establishing police lines due to the imminent danger of property damage and personal injury due to the influx of 'outsiders' into the vigil lines." He believed that the "outsiders" were some of the same anti-war demonstrators who were responsible for destruction of property earlier in the day at the Washington Monument, although he did not actually observe any of those arrested destroy any property or commit any other illegal acts. The court found that "as a matter of law, based upon the undisputed facts of this case, this Court is unable to find that Inspector Trussell acted with a reasonable belief of impending violence such as to necessitate the imposition of police lines."
Thirty-one years later, a similar rationale was given for approximately 400 arrests made in Pershing Park during a protest against the policies of the IMF/World Bank on September 27, 2002. Assistant Chief Newsham, who gave the order to arrest that day, testified that although the demonstrators in the park were not violent or committing any property damage immediately prior to the arrests, he based the order on the fact that the demonstrators, as a general group, did not have a permit, had broken windows several blocks away earlier in the morning, and had then broken traffic laws on their way to the park. Yet Assistant Chief Newsham could not be sure that all of the individuals arrested in Pershing Park were responsible for the earlier violations of law. In the end, he gave the order out of concern over what the demonstrators would have done had they been allowed out of the park. The following is an excerpt from Assistant Chief Newsham's deposition before the Committee:
As discussed in more detail later in this report, an MPD internal investigation subsequently found that the Pershing Park arrests were made in violation of MPD policy and that bystanders not even involved in the demonstrations were arrested that day. The District has initiated settlement discussions in some of the lawsuits filed against the city over the Pershing Park arrests.
This comparison between the Tatum case and Pershing Park arrests is helpful in making the point that the courts have repeatedly found that demonstrators cannot be arrested based on what police may fear is a potential for law breaking.
The courts have also reviewed MPD policy and practice in handling demonstrations more broadly. In the case Washington Mobilization Committee, et al v. Maurice J. Cullinane, et al, in 1974, the U.S. District Court found several aspects of MPD's handling of the May Day demonstrations to be unconstitutional and took particular exception to the department's use of a police line ordinance to disperse crowds. It found the ordinance "unconstitutional as applied to demonstration activities in which First Amendment rights are being asserted."
The ordinance (Article VI Section 5(a) of the Police Regulations of the District of Columbia) includes language that "every person present at the scene of such occasion shall comply with any necessary order or instruction of any police officer." The court noted, "the scope of the ordinance is expansive, to say the least. Limits on police discretion are virtually nonexistent." It gave a police officer "unfettered discretion to issue any order he thinks reasonable and then is allowed to initiate criminal proceedings against a person who disobeys the order," and harkened to Justice Hugo Black's concurrence in Gregory v. Chicago, "to let a policeman's command become equivalent to a criminal statute comes dangerously near making our government one of men rather than laws."
The Court enjoined the department from erecting police lines and initiating sweeps of areas during demonstrations "until the police department or the District of Columbia government specifies the scope and limits on the department's power to clear a public area, sufficient to inform both the police and the public of their responsibilities." In addition:
The Court also:
Other points made in the 1974 U.S. District Court decision that resonate today:
After a three-judge panel of the U.S. Court of Appeals reversed the District Court's ruling, plaintiffs in the case challenged the action, asking the full nine-member U.S. Court of Appeals to rehear the case and to reinstate the District Court's ruling. In a September 1977 decision, five of the nine judges issued opinions taking issue with some aspects of the three-judge panel's reversal. Rather than having a rehearing, however, they decided to rely on new leadership at MPD to change its mass demonstration policies and practices
Judge Bazelon concurred with many if not most of the U.S. District Court's findings, including "its unchallenged findings that the police used excessive force and made unlawful arrests" which were "more than sufficient grounds for the injunctive relief it ordered."
Bazelon and Levanthal directed scathing criticism toward the leadership of the MPD, citing the lower court ruling. "These findings of the District Court amply support its crucial factual conclusion that 'many examples of misconduct by CDU and PCC officers were the direct result of policies and procedures authorized by defendants and of defendants' failure adequately to train, supervise and coordinate the activities of subordinates," Bazelon wrote. He also noted that the case concerned police misconduct in handling demonstrations and that "there is likely to be a chilling effect on individuals' protest activities unless the police are restrained from similar misconduct in the future." Levanthal said the case "presented evidence of either participation by the police chief and supervising officials or knowing toleration of misconduct."
The Court sought to explain its decision to deny a new hearing while essentially concurring that the Department should move forward with reforms.
Judge Leventhal wrote:
Judge Bazelon noted:
Following this decision, in January 1978, MPD issued a handbook on mass demonstrations. The Committee has reviewed several versions of the manual that have been produced since 1978, and the same handbook, designed to respond to the concerns of the courts in the mid-1970s, are essentially in effect today.
In the 22 years following issuance of the manual, MPD handled thousands of demonstrations without major controversy and, in the process, gained an international reputation for handling demonstrations well, without incident or civil disturbances. Among the more provocative demonstrations handled by MPD during this time were a group of farmers who drove their tractors around the Capitol and parked them on the Mall in 1978 "in defiance of traffic regulations"';5 regular anti-abortion marches that attract counter marches; a Ku Klux Klan march in 1991; and the Million Man March on the Mall in 1995. Each of these events caused anxiety within government and the community over the potential for disruption or violence, real or perceived, but each was handled without mass arrests or major controversy. A review of court records over this time period reveals no litigation filed against the District over MPD's handling of demonstrations prior to the April 2000 anti-globalization demonstrations.
After the demonstrations against the World Trade Organization in Seattle in November 1999, MPD's handling of anti-globalization demonstrations would bring about a new era of critical opinion of MPD's performance in this area: harsh criticism on the part of the activist community and international acclaim within law enforcement for preventing the kind of civil disturbances that have followed international trade meetings elsewhere in the world.
Use of Undercover Officers to Monitor Political Activists
The Committee's review of MPD's current use of undercover officers to conduct surveillance of political activists also has a historic precedent. In 1975, the Washington Post reported that during the late 1960s and early 1970s, MPD used undercover officers to monitor and keep files on local political activists and politicians, including former Councilmembers Marion Barry, Julius Hobson and Sterling Tucker and former D.C. Delegate to Congress Walter Fauntroy.6 An unnamed source of the Post claimed that undercover agents sought details on activists' sexual habits, drug use and finances. A former police informant reported that he was instructed to act as an agent provocateur and to steal mail, break into buildings, and "disrupt legitimate demonstrations of the anti-war movement."7 Police officials at the time admitted to the surveillance but denied that agents recorded information about activists' personal lives or engaged in illegal activity, and said that all of the questionable files were shredded.
A civil action, Hobson v. Wilson, was filed against the District and MPD by several Washington-area protestors alleging that members of the MPD Intelligence Division served as agents provocateur as part of a joint FBI-MPD conspiracy, in furtherance of its stated mission to gather information on "persons, groups, and organizations whose activities might be detrimental to the proper functioning of local, state or national governments." In a 1984 decision, the D.C. Court of Appeals overturned a lower court ruling by finding that there was insufficient evidence that the MPD or the District of Columbia participated in a conspiracy to violate plaintiffs' constitutional rights either within MPD itself or between MPD and the FBI. The court did affirm liability against the FBI, ruling that there was enough evidence that the FBI actively participated in unlawful COINTELPRO activities to justify the lower court's finding of liability, and noted four categories of illegal activity on the part of the FBI.
The Council held several public hearings on the issues reported in The Washington Post and considered three pieces of legislation intended to prevent similar surveillance from occurring in the future. Council Chairman Sterling Tucker introduced Bill 1-76, "the Police Intelligence Safeguards Act of 1975," which established a temporary Police Intelligence Policy Commission to conduct a review of the policies and procedures employed by MPD for intelligence gathering activities and recommend to the Council new guidelines as it deemed necessary. The bill also prohibited three classes of information from being maintained by MPD on individuals, including non-criminal personal information, financial information and any information related to political, religious or social views. It also allowed individuals to request to review MPD files on themselves.
Councilmember Julius Hobson introduced Bill 1-287, "the Non Criminal Police Surveillance Act of 1976," which defined "unlawful surveillance," proscribed limitations on the interception of conversations, and prohibited any official or agent of the District from disrupting lawful activities or inciting others to engage in unlawful activities. It provided a cause of action for anyone injured by a violation of the legislation.
Councilmember Hobson then introduced Bill 1-362, "the Police Records Act of 1976." This act attempted to control what types of records MPD could maintain and disseminate and established a Records Review Board, charged with enforcing limitations on police records-keeping practices through semi-annual auditing procedures; promulgating regulations; and making determinations on whether individuals should be able to review records about themselves unless there was clear and convincing evidence that such inspection would threaten the integrity of an ongoing investigation.
All three bills were criticized by law enforcement and some provisions were even criticized by the local chapter of the ACLU as unworkable and too broadly written. According to press reports, in response to the controversy, then police chief Maurice Cullinane conducted a review of the practice of MPD's Intelligence Unit and established new policies and procedures for police surveillance with a July 1976 general order. The new general order mandated that all intelligence be obtained through lawful methods and be related to criminal activity or persons or events that present threats to life or property. It expressly prohibited the maintenance and collection of intelligence information related to social, religious or political views, family associates and finances unless directly related to criminal conduct. After the issuance of Chief Cullinane's order, the Council apparently decided to allow MPD to regulate itself in this area, much as the federal courts had done. Each of the bills died in committee.
During the course of its current investigation, the Judiciary Committee subpoenaed any current or former general orders that may have been related to the 1976 Cullinane general order, but MPD responded that no such policies could be located. The Committee can only assume that the Cullinane order was at some point repealed by MPD. Ironically, the Washington Post, while commending the issuance of the general order, warned of this possibility at the time. In a July 23, 1976 editorial, the Post noted:
Another editorial expressed a similar sentiment:
There will be, no doubt, trouble again some time in the future with police intelligence operations…with the passage of time, some of the lessons learned from the last decade will be forgotten. But, it seems to us, Chief Cullinane is in the process of getting the police department off the wrong road and channeling its intelligence efforts into places where they can be more productive and less troublesome. The real test is whether the community pays enough attention to make sure that shift is completed and, once completed, maintained.9
In the 1970s, both the courts and the Council discovered serious problems with MPD's handling of important issues related to First Amendment activity – primarily its handling of mass demonstrations and its undercover surveillance of political activists. In each instance, following debate and consideration of the issues, discretion was left to MPD to fix problems internally and to self-regulate. With the passage of time, it seems that critical and hard-learned lessons were indeed forgotten. Considering the District's history in this area and the increasing threats to civil liberties across the nation caused by post-September 11th local and federal security policies, now, more than ever, the Council has a responsibility to act, through both oversight and legislation.
III. Case Studies
Case Study: April 2000 and the Convergence Center
In April 2000, thousands of demonstrators converged on Washington, D.C. for a weekend of protests against the policies of the International Monetary Fund and World Bank. Since this was the first major anti-globalization demonstration since the November 1999 meetings of the World Trade Organization in Seattle, there was much concern expressed by District government officials, law enforcement, and residents, about the potential for violence in the District similar to that experienced in Seattle. The Metropolitan Police Department responded to this concern by preparing for the IMF-World Bank meetings for months in advance, seeking and securing significant federal funding for security including a closed-circuit television system, getting manpower assistance from other police departments, asking the courts to be prepared for mass arrests, and by mobilizing the entire department.
On Saturday, April 15, 2000, the day before the largest scheduled anti-globalization demonstration, Fire and Emergency Medical Services (FEMS) officials and MPD officers entered the headquarters, or "convergence center," of the anti-globalization organizations at 1328 Florida Avenue, N.W.; issued multiple fire code violation notices; and closed down the center, ordering all of the individuals inside to vacate the premises. This raid of the convergence center disrupted the organizational plans of the demonstrators and displaced many anti-globalization activists from out of town who were staying at the center while visiting the District.
Demonstrators as well as some residents criticized the District's actions at the convergence center, and accused MPD of orchestrating the event for the purpose of frustrating the constitutional rights of the demonstrators. An April 16, 2000 New York Times article, "Police Move Against Trade Demonstrators," characterized the raid as "a pre-emptive show of force." Councilmember Patterson, joined by Councilmember Jim Graham, wrote to Council Chair Linda Cropp and Judiciary Chairman Harold Brazil to request an oversight hearing on the police actions. In April, 2001, a lawsuit10 was filed against the District of Columbia that included allegations that the District's actions at the convergence center were unconstitutional.
The Committee examined the convergence center raid as a case study of MPD's policies and practices in handling demonstrations, particularly its practices with respect to intelligence tactics. The Committee subpoeanaed documents related to the raid on the convergence center and deposed four individuals: FEMS Chief Adrian Thompson, FEMS Deputy Chief James N. Short, MPD contract employee Neil Trugman, and Intelligence Unit Sergeant Jeffrey Madison. In April 2000, Chief Thompson was the Fire Marshall, Deputy Chief Short was a Battalion Chief and Assistant Fire Marshall with the Fire Prevention Division, Neil Trugman was a detective assigned to MPD's Intelligence Unit, and Sgt. Madison was, as he is now, a supervisor assigned to MPD's Intelligence Unit.
The following is a chronology of the events leading up to and during the raid on the convergence center, based on the information collected by the Committee.
During the week prior to the IMF-World Bank meetings, Chief Ramsey and then-Executive Assistant Chief (EAC) Terrance Gainer provided a briefing for Councilmembers and staff on plans for addressing public safety concerns associated with the meetings and demonstrations. The department, in conjunction with the two international organizations and the federal government, essentially closed off certain areas of the city including areas immediately surrounding the IMF offices and the headquarters of the third police district. The police executives showed Councilmembers a videotape of incidents that took place in Seattle the previous December, and voiced their own determination that such events would not take place in the District of Columbia.
Chief Ramsey told the Washington Post on April 8, 2000, "They ain't burning our city like they did Seattle." Three days later Assistant Executive Chief Terrance Gainer told the Post, "Arrests will be quick, swift and certain. We won't be caught sleeping."
During the days leading up to the IMF-World Bank weekend, MPD monitored the convergence center. An April 3, 2000 memo from Intelligence Unit Lieutenant Lorraine Kittrell to Chief Ramsey described, in minute detail, the layout of the convergence center, a schedule and description of the events that were to take place from April 8 to April 15, and information about the ownership of the building.
According to the testimony of Mr. Trugman, during the course of this monitoring, MPD became concerned about potentially hazardous conditions inside the convergence center, including the presence of propane tanks, demonstrators sleeping on staircases, and over-crowding. He indicated that MPD discussed securing a search warrant of the premises. Mr. Trugman was asked in his deposition if he had reason to believe there was illegal activity at the center, and he said there were "bits and pieces" of information.
Apparently it was decided that the department did not have sufficient cause to secure a search warrant. MPD officials turned to potential administrative actions. The department invited representatives of FEMS, including Deputy Chief Short, to a meeting on or about April 13, 2000. Sergeant Madison and Mr. Trugman participated in this meeting.
During the meeting, MPD officials showed Deputy Chief Short news media videotape footage of the conditions inside the convergence center, including footage of propane tanks and, according to Deputy Chief Short, "a large number of people in a very small area inside the building." Deputy Chief Short was asked if he saw anything improper in the video footage and he stated that what he saw was "not allowed under the Fire Code." After seeing these violations, he stated that he "had to take some action" and it was decided within the fire department that the District's Nuisance Abatement Task Force11 would conduct an inspection of the building.
It was not, however, until at least two days later, on the morning on April 15, 2000, that Deputy Chief Short conducted the inspection with FEMS Captain Richard Fleming, fire inspector Ronnie Elam, a Department of Consumer and Regulatory Affairs (DCRA) inspector, and a Department of Public Works (DPW) inspector. There is a discrepancy in testimony on whether the Task Force entered the building simultaneously with members of the MPD. According to the deposition testimony of Deputy Chief Short, Mr. Trugman and Sgt. Madison, MPD did not enter the building until Deputy Chief Short became concerned that the demonstrators were not clearing out of the property or abating the fire code violations noted by the Task Force. Deputy Chief Short testified that "a great deal of time passed between the initial being allowed to come in and conduct the inspection until the police officers that I saw were on the scene."
In apparent contradiction to that statement, videotape viewed by the Committee clearly shows MPD officers, including Sgt. Madison and Mr. Trugman, entering the building at 8:45 a.m. Chief Thompson's written deposition states that the Task Force entered the building at 8:45 a.m. Deputy Chief Short testified during his deposition that the time was either 8 a.m. or 8:45 a.m. and he could not be sure of the exact time.
MPD intelligence officers, including Sgt. Madison and Mr. Trugman, were aware that the inspection was taking place and were on hand to respond to any request for assistance from the Task Force. The following is an excerpt of Mr. Trugman's testimony on this point:
Deputy Chief Short and Chief Thompson testified that upon entering the building, the Task Force found hazardous conditions inside, including overcrowded conditions, improper use of propane tanks for cooking purposes, make-shift electrical wiring, improper storage near exits and in stairways blocking egress, and storage of large quantities of paint and bedding materials in utility areas. When describing the scene and his attempts to clear demonstrators out of the building, Deputy Chief Short testified:
Several fire code violation notices were issued to the owner of the building, Douglas Development Corporation,12 and the demonstrators were cleared out of the building by 12:30 p.m.
The Committee sought clarification on the role of the MPD's Intelligence Unit in closing down the convergence center. Fire officials acknowledged that the presence of intelligence officers at a building inspection was highly unusual. In response to the Committee's October 16, 2003 written deposition question, "Do MPD Intelligence Unit officers typically accompany Fire and Emergency Medical Services Department inspectors during inspections? If yes, under what circumstances?," Chief Thompson stated "To my knowledge no MPD intelligence unit officers accompany Fire and Emergency Medical Services Department inspectors during fire inspections." Deputy Chief Short was also asked this question during his deposition:
As indicated above, Mr. Trugman testified that MPD initially wanted a search warrant to look for items such as molotov cocktails or sleeping dragons -- none of which was found on the premises – but did not have probable cause to obtain a search warrant. The next question became what purpose was served by intelligence unit members being on hand for the fire inspection. Had there been a concern about public safety generally, the normal course would have been use of uniformed officers, not intelligence officers. The allegation in litigation has been that the intelligence unit was on the premises for the specific purpose of gathering intelligence information on demonstrators for law enforcement purposes.
As stated above, Deputy Chief Short testified that he only called MPD officers to the scene to get assistance with clearing the building. Sgt. Madison also testified that he responded to the convergence center out of concern for the safety of the inspectors. But this version of events is not consistent with Mr. Trugman's testimony that intelligence officers entered the building with the specific intent of looking for illegal activity.
The following is an excerpt of the transcript of Mr. Trugman's deposition on both the issue of the warrant and MPD's intentions upon entering the building:
The assertion that MPD intelligence officers arrived at the convergence center for the purpose of collecting information on demonstrators is further bolstered by some of their actions once they arrived. In response to a subpoena issued to MPD, the Committee obtained a videotape containing footage taken by MPD intelligence officers during the inspection of the convergence center. At several points during the video, the camera pans over crowds of demonstrators, inside and outside of the building, at times zooming in on individuals. At another point on the tape, for approximately 20 minutes, the camera zooms in on, and scans, the entirety of a bulletin board containing political posters and fliers as well as hand-written personal notes containing the names, phone numbers and other personal information presumably on demonstrators who used the center's bulletin board as an information exchange.
In his deposition testimony, Mr. Trugman suggested that the purpose of the footage was to cross reference the names of anyone who had been "troublemakers" in other cities, like Seattle, with the names of the people attending the demonstrations in Washington:
Sgt. Madison testified that the videotape was taken by an Electronic Surveillance Unit (ESU) officer who usually accompanies MPD on drug-related search warrants issued pursuant to a criminal investigation. In those instances the ESU's typical practice is to collect as much information from a scene as possible; for example, information about suspected drug dealers and their acquaintances. Sgt. Madison testified that the convergence center videotape was not used, or possibly not even watched, for any purpose after the inspection of the convergence center. Craig Broyles, a civilian analyst assigned to the Intelligence Unit, also testified that the unit did nothing with the information contained on the videotape. In response to questions about this practice during the public hearing, Chief Ramsey stated that "the taping of that bulletin board was not necessary. It was regrettable." Asked specifically if the tape had been given to other law enforcement authorities such as the Federal Bureau of Investigation, Ramsey assured the Committee that it had not.
Two documents obtained by the Committee underscore the contention that the convergence center raid was an MPD law enforcement operation designed to thwart the activities of the demonstrators, and has continued to be viewed in that manner by District officials. The Committee issued a subpoena to the Fire Department for any documents relative to 1328 Florida Avenue, N.W. and, in response, received a document labeled "DC Fire Department Real Estate Property Profile." The document contains the following statement:
Deputy Chief Short, when asked about the document, responded, "I do not have an answer on that; I actually do not know who that was." Nonetheless, the connection between the fire inspection, the closing of the center, and the intent to assist MPD's law enforcement efforts is clear.
The second item is a document attached to the original complaint filed by plaintiffs in Alliance for Global Justice, et al v. District of Columbia, et al. The document is a memorandum from MPD employee Steve Gaffigan, Senior Executive Director for Quality Assurance, to SRB Productions, a television and video production company, outlining a prospective MPD training video relevant to handling demonstrations. The memo states, "We will then go on to look at the footage of MPD's Intelligence Unit shutting down the convergence center during the 2000 IMF protests, finding bottles with rags. We will explain the significance of such a tactic."
This statement regarding "bottles and rags" brings up another and final issue regarding the convergence center inspection. After the inspection, Chief Ramsey and Executive Assistant Chief Gainer claimed to have confiscated materials to make pepper spray and molotov cocktails,14 statements not corroborated in the Fire/EMS records on materials actually recovered at the convergence center. No one interviewed by the Committee up to and including the police and fire chiefs testified that any illegal or criminal items were found at the convergence center. It is regrettable that the opposite was reported externally and internally by MPD officials.
Actions taken by the Metropolitan Police Department and Fire and Emergency Medical Services Department to close the convergence center the day before the anti-globalization demonstrations violate prohibitions on infringement of free speech.
The circumstances surrounding the inspection of the convergence center raise serious questions whether the action was a pretextual criminal law enforcement search in violation of the Fourth Amendment.
The agencies effectively closed down the convergence center not primarily for public safety reasons, but for other reasons that presumably include disrupting the planned demonstrations and securing, for law enforcement purposes, information on those participating in the demonstrations. The center posed a danger to inhabitants or it did not; if it did present imminent danger, as Deputy Short testified, it should have been closed immediately when officials first noticed the violations. The time allowed to lapse between the meeting attended by MPD and FEMS and the actual raid belies that there was, in fact, a public safety concern.
In addition, the District should have given the activists 24 hours to abate the fire code violations and return to the center, prior to the largest scheduled anti-globalization demonstrations. Failure to do so supports the contention of litigants that the raid was designed to frustrate the operations of the activist organizations, something clearly prohibited by First Amendment protections.
While the MPD videotape taken during the convergence center raid of names, phone numbers, and addresses of individuals participating in the anti-globalization activities may have been within legal boundaries pertaining to information in plain and public view, its existence and maintenance raise additional questions about police intent in terms of surveillance of protected political activities.
MPD officials provided erroneous and misleading information to the public concerning what was found and confiscated at the convergence center, in a manner that suggests an attempt to characterize demonstrators as prone to violence.
Case Study: The 2001 Inauguration, Pepper Spray, and MPD Self-Policing
The January 29, 2001, issue of the LA Weekly, an alternative newspaper published in Los Angeles, included this description from along the parade route in Washington D.C. on Inauguration Day, 2001:
A Washington Post Style section piece profiling Mara Verheyden-Hilliard and Carl Messineo, lawyers and founders of the Partnership for Civil Justice, includes this variation on the incident:
On March 15, 2001, two months after the inauguration of George W. Bush as the 54th president of the United States, the International Action Center and Justice Action Movement plus six named plaintiffs filed suit against the United States, the Metropolitan Police Department, and other government entities alleging constitutional violations, assault and battery, and false arrest and imprisonment. Among the charges: that undercover police pepper sprayed the crowd at the Navy Memorial along the Pennsylvania Avenue parade route. The court filing, sections 105 through 113, follow:
The officer who used pepper spray along the inaugural parade route was MPD Investigator Patrick Cumba working in plain clothes that day for the Intelligence Unit. The lawsuit describing the pepper spray incident was amended on October 11, 2002, with Investigator Cumba and his Inauguration Day partner, Detective Jed Worrell, and their immediate superiors, named as additional defendants.
In response to being named a defendant in the lawsuit, Investigator Cumba provided the following answer to the amended complaint, which was filed with the federal court on January 17, 2003:
All of the other allegations against the officers were denied in the January 2001 filing.
Nearly two years after the Inauguration and 22 months after the lawsuit was filed alleging the pepper spray incident, the MPD Office of Professional Responsibility initiated an investigation of the officer's actions that day. The OPR Force Investigation Team interviewed Investigator Cumba on December 12, 2002.
The MPD lead investigator, Detective Elisa Brown, interviewed Investigator Cumba and Detective Jed Worrell. Investigators spoke to the plaintiffs' attorney, Verhayden-Hilliard, but did not interview the plaintiffs because, the report states, the plaintiffs' attorney would not permit the interviews. Nor did the investigators interview anyone else on hand at the Navy Memorial on inauguration day, which included representatives of the U.S. Park Police, several persons interviewed by the news media including The Washington Post, and individuals who subsequently wrote to The Washington Post about what they saw and heard at the Navy Memorial. The investigators indicated that they were unable to talk with Cumba's superior, retired Sgt. James Staples because he did not respond to a letter sent to his Forestville, Md., home address.
The MPD report on the investigation indicates that Detective Brown viewed the protester's videotape. That tape, also shown during the Committee's December 17 hearing, shows Investigator Cumba wearing dark warm-up pants and a black and orange coat striding through the crowd along the parade route. Uniformed police officers are plentiful in and alongside the crowd. Cumba's face is hidden by a black ski mask and a white hood. Though the picture is slanted and jerky, it clearly shows Cumba holding a can in his right hand. He is seen walking through the crowd, and he shoves someone out of his way to his left. In two series of shots he appears to hold the can and spray its contents at other persons in the crowd. Onlookers run away from him and he follows them, apparently continuing to spray. At one point he changes direction, and walks toward another part of the crowd, spraying again. He is seen being taken into custody by Park police. At no time is there any indication that the officer announced he was a police officer, as is required by department policy (MPD general order 308.13) that states an officer working out of uniform should identify himself as an officer if he is required to take police action.
The department's policy on use of pepper spray, contained in the May 2003 Standard Operating Procedures for Mass Demonstrations, Response to Civil Disturbances and Prisoner Processing, states that canisters of Oleoresin Capsicum (OC or pepper spray) "shall be employed against crowds only as necessary in a defensive capacity, unless no other crowd management weapons are readily available." Any offensive use "shall be only upon approval of the Field Commander and/or her designee."15
Cumba's account of the incident given as part of the MPD investigation, contrasting sharply with the version included in the litigation and what is plainly visible on the videotape, and given 23 months after it occurred, follows:
Cumba indicated that he reported use of pepper spray to his sergeant but did not know if Sgt. Staples filed a use of force report. The investigators apparently found no record of a report within the department. The investigator consulted with Assistant U.S. Attorney Sherri Berthrong in July 2002, wrote that the AUSA viewed the videotape, and four days later the department received a letter from the U.S. attorney declining criminal prosecution for the use of pepper spray.
The result of the internal MPD investigation: "On January 14, 2003, the Use of Force Review Board reviewed the use of service weapon incident by Major Narcotics Branch Investigator Patrick Cumba. After careful consideration the board concluded that the officer's use of force was justified." The board also determined this was a "tactical improvement opportunity," that is, Investigator Cumba was recommended for "personalized tactical improvement opportunity training" at the police academy.
At the Committee's hearing December 17 Assistant Chief Broadbent, whose purview includes the Intelligence Unit, was asked what the officers were doing the day of the inauguration. He said he did not know.
To reach the conclusion in the investigative report, MPD investigators appear to have relied solely on statements by Cumba and Worrell. They do not explain the stark difference between their accounts and what is clearly visible on the amateur videotape, or the discrepancies between the accounts of Cumba and Worrell. Beyond what appears on the videotape to be illegal use of pepper spray by a plain clothes officer, the pepper spray incident and resulting investigation raise serious concerns about the willingness and capacity of the Metropolitan Police Department to investigate misconduct within its own ranks.
Chief Ramsey was questioned about this incident and the department's investigation in a November 14, 2003 deposition in one of the lawsuits, International Action Center, et al, v. the United States of America, et al. He testified that he first became aware of the pepper spray incident "a couple of weeks ago" when he also viewed the amateur videotape. Asked if he was aware of the internal investigation, he said, "I just became aware of that recently…through my attorney, in preparation for this" deposition. Excerpts of the testimony that followed:
Plaintiffs attorney Mara Verheyden-Hilliard: Having viewed that video, did it appear that their actions were in conformity with their constitutional obligation as the MPD?
The attorney and Chief Ramsey go through a series of questions on the level of oversight of MPD Office of Internal Affairs and Force Investigation Team investigations. Verheyden-Hilliard asks, "what safeguards are in place to ensure that the police officer is not essentially let off the hook?" and "If there is no adverse action taken against that officer, is there any safeguard to ensure that that was the correct determination?" Ramsey describes the command channel review. It is made very clear on the record that when an investigation concludes that the officer acted within MPD policy, as was the case with the pepper spray incident, there is no second-level review up the chain of command.
In December during the Committee's hearings, Assistant Chief Broadbent was asked about the videotape showing the pepper spray incident. He said he had not seen the Force Investigation Team report, but took for granted that the investigation was "complete and comprehensive."
The prevalence and quality of internal MPD investigations was not initially an issue within the scope of the Judiciary Committee investigation. The committee, nonetheless, has no choice but to comment and make recommendations concerning this critical aspect of police work: it is imperative that the D.C. Council, and the public generally, be able to have confidence that law enforcement leaders hold themselves and their subordinates accountable.
There is no evidence that the pepper spray incident was even considered as an issue by MPD until the litigation forced the Department to acknowledge its occurrence. There is no evidence Investigator Cumba filed a report on use of pepper spray; there is no evidence Sgt. Staples was aware or did anything about the use of force; the Office of Professional Responsibility investigator failed to pursue even the basic step of contacting Sgt. Staples in person to pursue this aspect of the investigation, let alone other basic police work such as interviewing persons known on the public record to have been on hand where the incident occurred. Not only was a report on the use of force required, and not filed, but, according to the SOP on mass demonstrations, "members who observe other members engaging in misconduct against citizens shall report such misconduct to an official as soon as possible." That, too, did not occur.
The Committee's concern with the ability of the MPD to police itself was underscored a second time in the course of this investigation by receipt on December 16, 2003 of another Office of Professional Responsibility report on three allegations brought to the department's attention in April by Committee Chair Patterson. The allegations were summarized as follows in a memorandum to the Assistant Chief of Police, Office of Professional Responsibility, signed on Sept. 9, 2003, and received by Councilmember Patterson on December 16, 2003:
While the Committee notes and appreciates the due diligence shown by the Office of Professional Responsibility in treating these allegations sufficiently seriously to have conducted an investigation, the end result is inadequate. That is, the memorandum report does not disagree with, but also does not explain why Eidinger was followed by six MPD officers. And it does not indicate any action taken whatsoever in the wake of MPD having wrongfully arrested David Curtis for assaulting a police officer.
With regard to the claim about motorcycles riding into a crowd, the investigators were unable to sustain the charge, but also did not take several steps that might have been indicated, including asking local television stations to view their video footage from that day of demonstrations. One videotape reviewed by the Committee shot by an independent journalist showed large numbers of MPD officers on motorcycles in the downtown area along Pennsylvania Avenue and side streets leading up to Pennsylvania, using the vehicles to butt their way through a crowd of anti-war protesters. The journalist interviewed a local attorney who described motorcycles driving into demonstrators. "He hit me on the back of my leg with his motorcycle," the lawyer said, but indicated he was not seriously injured. He said in the 900 block of E Street eight motorcycle officers used their vehicles to move demonstrators into the streets. While not precisely the scene described by Ms. Luck, the description was similar, and based not on a law enforcement investigation but, rather, on the Committee simply reviewing tapes of police conduct during the April 2003 anti-war demonstrations.
On the Eidinger complaint, the report notes, "Lieutenant Herold reported that the bicycle riders were followed so that he would know if and when the bicyclists were going to rejoin one another and begin an illegal Critical Mass Bike ride." Why were six officers tailing a single bicycle rider? What kind of deployment of resources did that represent, and was that defensible or worth challenging as a matter of policy and poor decision-making?
With regard to the Curtis arrest, the memorandum recounts reviewing the arrest/prosecution report which "appears to lack the basic elements for an Assault on a Police Officer." The arrest was no-papered, that is, prosecution for the alleged crime did not go forward. And the narrative in the memorandum indicates that Curtis along with other bicycle protesters was stopped and asked to show his bike registration; when he sought to ride off an officer grabbed the back bike tire and the officer's hand was injured. The arresting officer, Robert Hay, "stated that he became verbally abusive," when asked for the registration. He was "removed from his bicycle and placed under arrest for assault on a police officer."
A review of the prosecution report "revealed that at no time did Mr. Curtis actually assault the officers" and, rather, "it appears that Mr. Curtis failed to obey the officers' commands and attempted to escape." As to the individual being arrested for a crime he did not commit, the memorandum simply says: "Officer Hay has since resigned from the Metropolitan Police Department and it is therefore recommended that no further action be taken regarding his part in the arrest." Investigators did not question or review the apparent policy of seeking bicycle registrations of individual engaged in protected First Amendment political activity. As has been the case with other incidents reviewed by the Committee, the department's leadership does not use complaints lodged by residents to evaluate the performance of members of the department or of tactics generally used during demonstrations.
The third and final aspect of the Committee's investigation that points to failures at self-policing is discussed in greater length in the section on the Pershing Park investigation. As shown there, a series of after-action reports by MPD officials made very clear that there were serious issues with the arrests effected that day. "The mass arrests at Pershing Park were total confusion," wrote Capt. Andrew Solberg. "I was not confident of the legality of our arrests….That a great number of the failure to obey cases were no-papered indicates the USAO also felt uncomfortable with the charges and/or the arrests."
Another after-action report by Commander Abraham Parks noted, "officers showed up to paper cases and informed the papering attorneys they did not know why the demonstrators were arrested." That memorandum is dated October 2, 2002. A handwritten note on the memo states: "Send copy to EAC Fitzgerald, Terry Ryan, Esq." and is signed by Assistant Chief Alfred Broadbent. Chief Fitzgerald is second in command in the department; Terry Ryan is General Counsel. When asked in his deposition about after-action reports that highlighted issues with the arrests, Broadbent insisted he was not aware of those critical reports, his own signature on one of them notwithstanding. In his deposition, Executive Assistant Chief Fitzgerald stated that he was not aware of any problems with the Pershing Park arrests until sometime after the Council received testimony on the issue on October 24, 2002.
During the hearing December 17 and 18 Chief Broadbent and Chief Ramsey were asked about the failure of the department to follow up immediately on the mistaken arrests when after-action reports indicated serious problems. Neither gave a satisfactory answer.
The Metropolitan Police Department has failed in several instances to demonstrate effective self-policing by either failing to initiate investigations when they are called for by compelling evidence, or by initiating investigations that are themselves incomplete, contradictory, and in some cases not consistent with the facts, with the result that officials are not held accountable for misconduct.
The Metropolitan Police Department failed to investigate the inauguration day pepper spray incident until well after it occurred and only when forced to take the occurrence seriously by both ongoing litigation and this Committee's oversight, giving rise to the perception that misconduct within the ranks is tolerated.
The investigation itself ignored the conflicting evidence presented by the amateur videotape which clearly shows Investigator Cumba acting as the aggressor with the crowd in his use of pepper spray. The report failed to address the point of the discrepancy in the officers' own statements versus the visual record of the videotape.
The investigation failed to move up the chain of command to ascertain why the officer used pepper spray in this manner; failed to ascertain if this was, as alleged, an instance of serving as agent provocateur, a practice the department leadership officially decries.
The investigation of allegations by Adam Eidinger, Margaret Luck and David Curtis similarly were not carried to their logical conclusion in questioning the policy and practice of conducting surveillance on political activists, the inappropriate use of motorcycles during demonstrations, and the seriousness of making a wrongful arrest of a demonstrator.
The department failed to initiate its own investigation of the Pershing Park arrests based on highly critical internal after-action reports sent up the chain of command to the General Counsel, and Executive Assistant Chief.
The failure of the Department to initiate investigations into the pepper spray incident and the Pershing Park arrests gives rise to the perception that misconduct is investigated only when it becomes a political liability for the Department.
The pepper spray incident should be re-investigated by an independent authority. Options include the Department of Justice Independent Monitor overseeing implementation of DOJ's memorandum of agreement with on use of force, or the DOJ Inspector General.
Case Study: The Pershing Park Arrests, September 2002
On September 27, 2002, the Metropolitan Police Department arrested well over 600 persons in connection with anti-war and anti-globalization demonstrations throughout downtown Washington D.C. The Committee's investigation has focused on the arrest of nearly 400 persons in Pershing Park that day as a case study of MPD practices in order to assess whether the department adheres to its own policy, to legal requirements, and to best practices in assuring civil rights while protecting public safety.
MPD began preparing for the fall 2002 meetings of the International Monetary Fund and World Bank several months in advance including development of a comprehensive operations plan for the weekend of events. Political activists announced plans for both anti-war and anti-globalization events on Friday, Saturday, and Sunday, September 27-29.
In a July 21, 2002 e-mail to members of the command staff, Assistant Chief Broadbent warned "preliminary intelligence is that this will be the worst we ever faced" in terms of demonstrations. In preparation for the meetings, the department was fully mobilized, and MPD asked for manpower assistance from several local and federal police departments.
On September 23, 2002, Chief Ramsey briefed Councilmembers and Council staff on the upcoming weekend's events. He said that MPD was expecting 20,000-30,000 demonstrators. He said MPD was most concerned about non-permitted events planned for Friday, September 27th. Chief Ramsey urged people to take public transportation to work that day, and to expect delays if driving. He said that a group called the Anti-Capitalist Convergence was planning protests for that Friday, perhaps gathering around Freedom Plaza at around 10 a.m. Chief Ramsey shared information from the websites of some of the groups involved that he said had indicated they planned to "shut down the city."
By contrast to the Council briefing and similar updates provided to the media, the Department's own operations plan indicates that the department did not expect more than 4,000 demonstrators at any event over that weekend. A September 27, 2002 Intelligence Unit undercover activity report indicates that MPD had a clear picture of the schedule of the demonstrators that day. That report notes that a "snake march" would begin at 7 a.m. in Franklin Park at 14th and K Streets, N.W., that a "Critical Mass bike ride" would begin at Union Station at 7:30 a.m., and that a "People's Strike" would begin at 9 a.m. at Freedom Plaza.
The MPD operations plan for Friday, September 27, 2003, describes the People's Strike as a "call for protestors to blockade various major intersections throughout Washington, D.C. in an effort to shutdown the downtown area" and describes the "Bike Strike" as a ride to "protest global capitalism and environmental destruction" through the streets of downtown, during rush hour, "in an effort to shut down the city."
Sequence of Events
The Committee has reconstructed the events of September 27, 2002 by reviewing live media footage of that day as well as published press reports, listening to MPD radio runs, reviewing MPD after-action reports and the Department's "running resume" that logs events reported throughout the day, and interviewing MPD officials. The record shows that mass arrests were ordered throughout the downtown area either in the presence of or with the approval of Chief Ramsey throughout the morning.
Throughout the morning of September 27th, there were groups of demonstrators ranging in size from 30 to more than 150 people converging at different locations across the city, from downtown to Dupont Circle. There were also unsubstantiated reports of small disturbances at different points across the city. For example, local televisions stations reported that burning tires were reported to be seen on the 14th Street bridge at around 7 a.m. According to MPD radio tapes, at 8:48 a.m., 35 demonstrators were throwing debris on Dupont Circle. And at 8:55 a.m., a report came over the radio of demonstrators destroying property at 16th and P Streets, N.W. The Committee did not confirm the factual basis of these reports.
There were also several mass arrests made that morning. The arrests started at 6:55 a.m. when approximately 21 demonstrators were arrested for blocking traffic at the intersection of 14th Street and Independence Avenue, SW, at the exit/entrance to the 14th Street bridge. Five of these demonstrators linked themselves to each other through "sleeping dragon" devices17 and were extracted by the Fire and Emergency Medical Services Emergency Services Team.
At 7 a.m. roughly 400 demonstrators congregated at Franklin Park at 14th and K Streets, N.W. and then started marching out into K Street. Assistant Chief Brian Jordan was one of four command staff officials given a geographical area of responsibility, including 14th and K.18
He testified that demonstrators began marching in the street without regard for traffic, creating "a dangerous situation." He said, "I decided that we had to make arrests because if they continue there could be possible serious danger in terms of pedestrians being struck." His civil disturbance units (CDU) surrounded and attempted to cut off the demonstrators without success.
According to MPD's running resumé for the day, Chief Ramsey arrived on the scene at 7:27 a.m.
Once the march got to Vermont Avenue, the CDUs blocked in the demonstrators. According to Assistant Chief Jordan's commander's log, at 7:35 a.m., "civil disobedience that could have possible lead to serious injuries to pedestrians, drivers, protesters and police. Decision to effect mass arrests made for marching without a permit." At 7:40 a.m., additional CDUs were deployed to 14th and K Streets and at 7:46 a.m., smoke bombs were thrown at the police. Skirmishes then broke out between demonstrators and police officers. Images of police officers striking demonstrators aired on local television stations.
Assistant Chief Jordan testified that his CDUs formed a cordon around the demonstrators to prevent them from getting back to K Street. Within the area surrounded by police, the window of a business was broken at 7:49 am. At 7:52 a.m., the arrest order was given and approximately 178 arrests were made, all on charges of failure to obey a lawful order of a police officer. Assistant Chief Jordan testified that he gave the order to arrest. This testimony was confirmed by Commander Tom McGuire, who was one of the assistant commanders in charge of that area.
Assistant Chief Jordan testified that he did not give warnings. "With regard to the march, warnings were impractical and to the point of giving someone directions, impossible." He described the situation as "fluid" until the police lines stopped the marchers. He was asked, "even though at that point there was a line in front of them and a line in back of them even though in your own mind you had made a decision to arrest, where was the danger?" Jordan responded, "The action stopped the danger. If they were allowed to continue the danger would continue." Notwithstanding that view, the department's primary policy guidance on the issue of crowd control requires warning and dispersal orders prior to mass arrests "when time and circumstances permit."
There were multiple mass arrests made elsewhere in the city that morning. For example, according to radio tapes and media coverage, at 8:22 a.m., a group of protesters were contained on the 900th block of 12th Street, NW. At 8:32 a.m., Chief Ramsey arrived at this scene. At 8:37 a.m., approximately 70 protesters were arrested at this location. At 8:48 a.m. there were reports of fireworks being lit up and of demonstrators writing on the sidewalk with chalk on the 1200th block of Connecticut Avenue. By 8:58 a.m., according to the radio tapes, everything was orderly at this location. Yet at 9:10 a.m., a group of demonstrators was stopped and contained by CDU units at 1025 Connecticut Avenue, N.W, and at 9:12 a.m., 42 arrests were made with individuals charged with Failure to Obey.
The largest mass arrest that morning took place at Pershing Park on Pennsylvania Avenue between 14th and 15th Streets, N.W. Beginning at approximately 8:40 a.m., demonstrators and police officers began converging at Freedom Plaza between 13th and 14th Streets and at Pershing Park. According to radio tapes, at 8:47 a.m., 150 demonstrators were headed south on 13th Street crossing over G Street, NW.
At 9 a.m., a call came over the radio for all transport buses to report to the 1400th block of Constitution Avenue, N.W., a block south of Pershing Park. Transport buses are the means used by the police to transport prisoners after effectuating mass arrests.
By 9:06 a.m., the southern and eastern sides of Pershing Park were closed off by MPD civil disturbance units. As demonstrators began to converge on this location, a large group began to walk north on 14th Street. Fearing they were losing control of the group, according to Captain McLean, MPD officers cut those demonstrators off at 14th and F Streets and directed them back down 14th Street and into Pershing Park.
These were not the only demonstrators ushered into the Park by MPD. One of the demonstrators arrested at Pershing Park, retired Army Lieutenant Colonel Joseph Mayer, was interviewed by MPD as part of its internal investigation into the Pershing Park arrests. During that interview, he described arriving at Freedom Plaza to participate in the protest:
At 9:06 a.m., a group of approximately 75 to 100 demonstrators on bicycles arrived in the vicinity of Freedom Plaza. These "bike demonstrators" had set off from Union Station at 7:30 a.m. and rode around the city for approximately 90 minutes. Captain Andrew Solberg was in command of the CDU bike units that followed the bike demonstrators that morning. Capt. Solberg testified that he accompanied the bike demonstrators to the vicinity of Pershing Park and then the demonstrators ended up in the park.
According to Sergeant Darrick Ross, who was riding with one of the CDU bike units, the bike demonstrators had ridden past the park when the CDU officers were ordered to push the bike demonstrators back into the park. Given the fact that MPD had just pushed a large group of demonstrators into Pershing Park from 14th Street, it is likely that the bike demonstrators had no access to 14th Street and, indeed, were directed into the park. A September 28, 2002 The Washington Post article19 described it this way:
One of the riders, Michael Eichler, testified before the Judiciary Committee on October 24, 2002 about his experience:
Similar testimony was provided by Julie Abbate:
By approximately 9:15 a.m., a full half hour before the decision to make a mass arrest was made, Chief Ramsey and Executive Assistant Chief Michael Fitzgerald had arrived at Pershing Park. MPD's tactical strategy of intentionally directing demonstrators into the park was confirmed by Chief Ramsey. In an interview with washingtonpost.com that morning, Chief Ramsey said:
At 9:42 a.m., all four sides of Pershing Park were closed off and demonstrators were not allowed to leave. During the approximately thirty minutes prior to MPD's closing off the remaining two sides of the park, demonstrators and others within the park were not given any orders to disperse or warnings that they would be arrested. This has been substantiated by both the Committee's and MPD's own investigation, and by the testimony of Captains Andy Solberg and Ralph McLean, Lieutenant Herold, and numerous public witnesses. Assistant Chief Newsham testified that he believed that warnings had been given to demonstrators earlier that morning, and that that, in addition to the fact that two of the sides of the Park were open for a period of time, was sufficient warning to those inside the park that arrests would be made.
The decision to conduct a mass arrest had not yet been made when Chief Ramsey and EAC Fitzgerald arrived. According to the deposition testimony of EAC Fitzgerald, Assistant Chief Newsham, who was in charge of the area, approached Chief Ramsey and EAC Fitzgerald when they arrived on the scene and described the situation. Several witnesses interviewed by the Committee observed this conversation, which took place at the southeast corner of the park, at the intersection of 14th Street and Pennsylvania Avenue. The following are relevant excerpts from Assistant Chief Newsham's deposition about this conversation:
According to Captain McLean's deposition testimony, after this conversation with Chief Ramsey, Captain McLean and Assistant Chief Newsham discussed what the demonstrators should be charged with.
In his public hearing testimony before the Committee, Chief Ramsey confirmed that he gave approval for the order to make the arrests at Pershing Park.
At approximately 10:25 a.m., the demonstrators inside Pershing Park began to be arrested and loaded onto buses.
Facts on the record point to a decision to make preemptive mass arrests at Pershing Park. Through his public statements and directions to MPD commanders, Chief Ramsey set a tone that allowed for and approved of preemptive arrests. MPD created an expectation of violence, directed individuals into the park, and failed to permit persons to leave.
In statements to the media throughout the morning of September 27, 2002, Chief Ramsey indicated that he anticipated civil disobedience and that any law-breakers would be quickly arrested. The arrests made throughout the downtown area that morning showed that there would be no tolerance for any non-permitted, spontaneous demonstrating. Arrests were swift and, at times, preemptive, indiscriminate and in violation of MPD policy.
In the case of Pershing Park, it is clear from the testimony of Assistant Chief Newsham that arrests were made in anticipation of what may occur if protesters were allowed to continue demonstrating. The decision to make arrests was consistent with a preemptive tone set by Chief Ramsey in preparation for the demonstrations. Commander Tom McGuire testified during his deposition that there were discussions among command staff "about us setting the tone because of the way that the information was coming out that the protesters, again, wanted to take the city over, they wanted to shut the city down. And I think that the police department wanted to set the tone that we weren't going to allow that to happen in the nation's capital." Commander W. E. Dandridge in his after-action report notes: "The option to start mass arrests early on Friday morning proved highly effective and set the tone for the remaining days of the detail."
On the evening of the Pershing Park arrests, Chief Ramsey responded to a reporter's question about the arrests with this statement:
According to the deposition testimony of some MPD witnesses, including CDU training Sgt. Keith DeVille, the size of anti-globalization demonstrations has decreased since April 2000. This testimony is consistent with information provided to the Woodley Park community from a representative of the IMF, Pat Davies, during a community meeting in August 2002, one month before the Pershing Park arrests. Davies told the community that, particularly since September 11th, the "ferocity of violence" associated with anti-globalization demonstrations "is significantly reduced." Yet the rhetoric from MPD concerning the threat posed by anti-globalization demonstrations has remained the same since 2000.
The Committee subpoenaed documents from George Washington University (GWU) and received in response a copy of an internal e-mail recounting a conversation with IMF security that contained speculation on this issue:
According to George Washington University (GWU) campus police, GWU informed its students that "All of the indicators are that the protests will be nonviolent in nature and the majority of guests, including protesters, will peacefully exercise their first amendment rights."
At the Committee's December 18, 2003, public hearing Chief Ramsey was asked about the discrepancy between his public announcement that from 20 to 30,000 protesters were expected in the city and the department's own internal estimates that no more than 4,000 persons were expected at any individual event. He responded that MPD makes the most accurate crowd projections it can for upcoming demonstrations, and refused to acknowledge that the information the Department distributed internally differed from the information it shared with the public.
There can be serious consequences to releasing inaccurate information about the potential for civil disturbances during demonstrations. First, it is a violation of the public trust to release misleading information to the public. Second, there is a risk that law enforcement may over-react as a result of "over-preparing" for a crowd that is portrayed to be larger and more threatening than it is in reality. The massive over-reaction by the police during the international trade talks in Miami is an example of this phenomenon. According to the public hearing testimony of AFL-CIO chief international economist Thea Lee, who helped organize meetings of the AFL-CIO during the international trade talks in Miami in November 2003, labor organizers repeatedly gave crowd estimates for demonstrations of 10,000-20,000 people, yet Miami police officials made public statements projecting that 70,000-100,000 demonstrators would be in attendance.
Despite Chief Ramsey's testimony during the public hearing that MPD had no idea that the demonstrators would end up in Pershing Park, it is in fact the case that intelligence reports contained information about the three major events planned for that morning – the convergence and march at 14th and K Streets, the bike ride, and the convergence at Freedom Plaza at 9 a.m. At each location, MPD amassed resources necessary for arrests in advance. And at each location, mass arrests were made.
The rationale for the arrests at Pershing Park was based on alleged unlawful activity earlier that morning, but MPD commanders did not have probable cause to arrest everyone in the park on the basis of those allegations.
Assistant Chief Newsham testified that MPD had probable cause to make the mass arrest based on the fact that those arrested were demonstrating without a permit. He testified that earlier in the morning, he observed demonstrators turning over newspaper boxes and ignoring orders of MPD officers to get out of the street. He also testified that he had heard that demonstrators broke a window at Vermont Avenue and K Street earlier that morning. But Assistant Chief Newsham could not be sure that the people inside Pershing Park were responsible for the earlier activity. In response to an observation during his deposition that "it's very possible that the people who were parading without a permit or who had knocked over something or who had perhaps been involved over at Vermont and K that they went away," Assistant Chief Newsham testified:
The assumption that all of the individuals in the park, based on their appearance, were responsible for breaking the law earlier in the morning does not constitute probable cause to arrest them. Relevant constitutional case law, as well as MPD policy, requires that during mass demonstration situations, there must be probable cause that each of the demonstrators being arrested has broken the law. This point was reiterated by the testimony of Robert Klotz, a retired Deputy Chief of Police, Commander, MPD Special Operations and Traffic Division commander. Mr. Klotz testified that if a few people participating in a demonstration break the law, the police need to arrest only the law breakers, not all of the demonstrators. This is the mass arrest policy and practice of MPD as articulated by the testimony of Sergeant Keith DeVille, who supervises the civil disturbance training unit, and Lieutenant Jeff Herold, who is the commanding officer of the Domestic Security Operations Branch of MPD's Special Operations Division. Both Sgt. DeVille and Lt. Herold testified that MPD's mass arrest policy was applicable to the circumstances at Pershing Park.
If the rationale for the arrests is that demonstrators failed to disburse or were on an un-permitted march, the arrests were still unlawful because MPD arrested demonstrators at Pershing Park (as well as at Vermont Avenue and K Streets) without first giving orders or warnings, in violation of MPD policy.
The Pershing Park arrests also violated MPD policy because warnings were not given in advance of MPD's closing the park and making arrests. The MPD mass arrest manual states:
When the intensity level of a crowd rises and unlawful disruption, either through violent or passive means, is occurring to the extent that the Field Commander determines there is a need to make a positive police response, he/she will instruct the affected unit commanders, when time and circumstances permit, to issue warnings to the crowd to disperse. In issuing such warnings the following procedures shall be utilized by unit commanders.
Again, Assistant Chief Newsham's belief that actions on the part of MPD officers earlier that morning constituted enough warning that demonstrators would be arrested does not constitute compliance with the manual's mass arrest procedures. Further, Assistant Chief Newsham himself described the circumstances as static, so presumably circumstances would have permitted warnings. Contemporaneous press accounts corroborate the static nature of the crowd.
The timing of the arrests at Pershing Park is also important to evaluating their appropriateness. Even if, as Assistant Chief Newsham has testified, the arrests were made on the basis on demonstrators' failure to obey orders earlier in the morning, the fact remains that MPD did not take any positive police action immediately following the alleged violations of law. A significant period of time elapsed before the park was sealed off and the arrests made, and during that time period, MPD did not give demonstrators' any indication that there would be consequences for the earlier violations.
The Committee received expert testimony on this point from Robert Klotz. Mr. Klotz testified that during a mass demonstration situation, if the police overlook minor violations of law for a period of time, it is important to communicate a fair amount of notice before the police change tactics and begin to enforce the violations of law. At Pershing Park, no communication of this kind – including a warning consistent with MPD policy – took place during the 30 minutes between MPD's partial closure of the park and its final action to seal off the park and make arrests. The fact that bystanders totally uninvolved with the demonstration, as well as reporters, were swept up in the arrests, further substantiates this point. Julia Abbate, who wandered into Pershing Park to observe the demonstration, testified that, in fact, she followed every order given by police that morning, and that if she had heard any order to disperse, she would have. But no order was given and she was trapped inside the park and arrested.
Chief Ramsey is responsible for the arrests at Pershing Park, though he subsequently testified before the Judiciary Committee that he was not a part of that decision.
As the testimony of both Assistant Chief Newsham and Chief Ramsey confirms, Chief Ramsey was a full participant in the decision to conduct a mass arrest at Pershing Park. But in testimony before the Judiciary Committee on February 25, 2003, after the completion of MPD's Force Investigation Team report finding Assistant Chief Newsham responsible, Chief Ramsey testified that he was not a part of the decision. The following is a transcript of that testimony:
Further, according to MPD policy and District regulations, since Chief Ramsey was on the scene at Pershing Park, he was the official in charge. MPD's manual on mass demonstrations states that the highest ranking official on the scene is the "field commander," and is, therefore, in charge. Section 800 of Title 6A of the D.C. Municipal Regulation's states: "The Chief of Police shall, when necessary, immediately proceed to the scene of any riot, tumultuous assemblage, or other unusual occurrence and take command of the force and direct its efforts in the work at hand."
The official version of what occurred and what went wrong at Pershing Park as presented in the testimony of Executive Branch witnesses fails to acknowledge the fundamental flaws in MPD's execution and interpretation of its mass arrest policy that day. This failure has consequences in terms of MPD's commitment to protecting First Amendment rights during future demonstrations, as well as its ability to objectively review its own policies and procedures.
What is most striking about the mass arrests at Pershing Park is that the executive branch has repeatedly attempted to minimize the nature and extent of the mistakes that were made. During their public hearing testimony, Deputy Mayor for Public Safety and Justice Margret Kellems, Chief Ramsey, Assistant Chief Newsham, and Office of Corporation Counsel attorney Tom Koger refused to retreat from the position that the arrests themselves were not unlawful. To the extent that particular actions on that day were deemed problematic by these hearing witnesses, they were presumed to be the result of individual error, rather than the result of policy flaws. According to the department and the Williams administration, the blame for the Pershing Park mass arrests falls almost entirely on Assistant Chief Newsham, who was deemed guilty of not following procedure because of the failure to issue warnings and of using the wrong charge – failure to obey a police order instead of parading without a permit. They testified that Assistant Chief Newsham was correct in ordering the arrests, but his mistake was in not following procedure.
All of this creates the false impression of an action that was only technically incorrect, not fundamentally flawed. This belief does not bode well for the protection of First Amendment rights during demonstrations in the District in the future. Nor would it give rise to a thorough review of the Department's policies and procedures in handling demonstrations. This final consequence is most clearly illustrated by MPD's internal investigation into the Pershing Park arrests, an investigation discussed in detail in the next section of this report.
A factor in the decision by the Judiciary Committee to conduct an investigation of policies and practices of the Metropolitan Police Department in handling demonstrations was the failure of the department to conduct a thorough and objective internal review of the problematic arrests in Pershing Park in September 2002.
The need for a review of the Pershing Park arrests was clear almost immediately. On the evening of September 27, 2002 at approximately 5 p.m. Mayor Williams held a press conference attended by Deputy Mayor for Public Safety and Justice Margret Kellems, and Chief Ramsey. A reporter asked about the manner in which the arrests at Pershing Park were made. The following reflects an excerpt from videotape of the press conference:
Television media reports on the evening of September 27, 2002 included interviews of a woman who did not participate in the demonstrations but was swept up and arrested by MPD as she biked to work. The same evening broadcast included reports of technology breakdowns at the police academy contributing to delays in the release of those arrested. Newspaper coverage of the arrests the next day and for weeks following, contained allegations of illegal arrests, excessive use of force, and other improprieties on the part of MPD.21
In a September 30, 2002 letter to Mayor Williams, Councilmember Patterson objected to the level of resources spent on the demonstrations, noting that preparations for 20,000 – 30,000 demonstrators were made when only a couple thousand participated. She objected to the "de facto militarization of the city" and the arrest of nonviolent demonstrators, without warning, at Pershing Park. Mayor Williams responded to Councilmember Patterson's letter and noted how proud he was of MPD and its partner agencies, stating that they "worked cooperatively to uphold our city's great tradition of protecting the rights of peaceful and lawful protest, while ensuring public safety at the event sites and in our neighborhoods." He also objected to Councilmember Patterson's characterization of the de facto militarization of the District. He wrote that MPD "moved decisively to prevent [the shutting down of the city] from happening. In any given situation, the MPD rightfully uses its discretion in responding to non-permitted demonstrations. In this instance, the MPD chose not to tolerate such actions, and I support that decision."
In addition to press accounts and concerns raised by the D.C. Council, concerns about the arrests were also expressed internally within the department. Fourth District CDU Captain Andrew Solberg submitted an October 12, 2002 after-action report through his chain of command with the following observation:
The Office of Corporation Counsel (OCC) did not paper (i.e., forward for prosecution) any of the Pershing Park arrests because, according to media reports, they "felt they had no probable cause to connect the protester to a particular crime.22
Four MPD after action reports included relevant observations raising questions about the validity of the arrests. In an October 2, 2002 memo to Assistant Chief Alfred Broadbent, Commander Abraham Parks, then-Director of MPD's Court Liaison Division, listed a number of reasons OCC did not paper the arrests, including "Officers showed up to paper cases and informed the papering attorneys they did not know why demonstrators were arrested." A number of after action reports submitted by command officials made similar observations, including the following:
Between September 27 and October 24, 2002, the Judiciary Committee received additional information in letters and e-mails from persons arrested at Pershing Park and detained for 24 hours or more. The panel was urged to hold an oversight hearing on the issue.
On October 24, 2002, the Committee on the Judiciary held a previously-scheduled public hearing on pending legislation pertaining to personnel practices within the police and fire/EMS departments. Among the witnesses at that hearing were three individuals who recounted serious allegations of improper arrest and excessive force on September 27, 2002.
Based on that testimony, Councilmember Patterson immediately contacted Mayor Williams and urged him to initiate an investigation of the arrests and detentions. Mayor Williams, in a letter dated November 6, 2002, directed Chief Ramsey to conduct an investigation to be completed within 10 days. In a November 12 response, Chief Ramsey indicated that the Department's Office of Professional Responsibility would conduct the investigation, a decision that, in and of itself, became a matter of controversy.
To assist the Department, the Judiciary Committee provided a copy of the October 24 testimony in both written form and in a videotape of the hearing provided to the office of Deputy Mayor Kellems. Councilmember Patterson also provided a second videotape of the testimony to Assistant Chief Peter Newsham, Director of the Office of Professional Responsibility (OPR), who was at that time on administrative leave. On November 22, 2003, Acting OPR Director Inspector Stanly Wigenton called the Judiciary Committee for assistance in locating the October 24 witnesses, and Amy Mauro of the Committee staff provided the police department with the telephone number of the ACLU of the National Capital Area to facilitate the police department investigation.
Upon receiving the directive from Chief Ramsey to investigate the allegations of the Judiciary Committee hearing witnesses, Inspector Wigenton assigned the matter to Inspector Ederheimer, who in turn assigned the investigation to Captain Klein, commander of the Force Investigation Team (FIT). Captain Klein assigned the investigation to FIT Sergeants James McCoy and James McGuire, who conducted the investigation, reviewing the appropriate documents and conducting interviews.
Shortly after the start of the investigation, Sergeants McCoy and McGuire learned that Assistant Chief Newsham was the official in charge of the area surrounding Pershing Park on September 27, 2002, and that the investigation would focus primarily on decisions made that day by him. Because Assistant Chief Newsham is the highest ranking supervisor of Sergeants McCoy and McGuire, this presented an issue for the investigators. According to their deposition testimony, Sergeants McCoy and McGuire discussed this issue and felt that it would not be appropriate for the FIT to continue the investigation. Sgt. McGuire made this point to his lieutenants, Captain Klein, and Inspector Ederheimer. In addition, he said that, to his knowledge, the FIT had never before investigated an official at the rank of assistant chief or higher. Sergeant McCoy also testified that he had never investigated an official at the rank of assistant chief.
When asked about this issue, Inspector Ederheimer said he recalled some discussion about whether the FIT should continue with the investigation. He said that he could not recall the FIT conducting any investigation of an official at the rank of assistant chief or higher in the past, but that it would not have been conventional to refer such a matter to the Office of the Inspector General. In response to a question about this issue in an October 10, 2003 written deposition from the Committee, Chief Ramsey responded:
Finally, Chief Ramsey stated:
When it came time for the investigators to interview Chief Newsham, Sergeants McCoy and McGuire were informed by Captain Klein that they would not be interviewing the assistant chief, despite the fact that the sergeants had conducted every other interview related to the investigation. Instead, they were directed to write a list of the questions they had for Assistant Chief Newsham and were informed that EAC Fitzgerald would conduct the interview. According to Inspector Ederheimer, he attended a meeting with Chief Ramsey, EAC Fitzgerald, Inspector Wigenton, Commander Ponton, and MPD General Counsel Terry Ryan, when this issue was discussed. At this meeting, Inspector Ederheimer recommended that the sergeants not interview Assistant Chief Newsham because it would be "awkward" for members of the FIT to interview their commanding officer. It was then agreed that Terry Ryan would conduct the interview.
According to Chief Ramsey's response to the October 10, 2002 written deposition, he subsequently "determined that Executive Assistant Chief Fitzgerald would interview Assistant Chief Newsham." He "initially felt that Assistant Chief Newsham should be questioned by the General Counsel. However, upon further discussion and reflection, [he] decided that Assistant Chief Newsham should be questioned by a ranking official rather than the General Counsel." This decision apparently was made notwithstanding the earlier determination that it "was not inappropriate" for the FIT to investigate the actions of Chief Newsham.
The decision to have EAC Fitzgerald interview Assistant Chief Newsham brought an official who was not assigned to the FIT into a confidential investigation, an action inconsistent with typical investigative practice. During his September 26, 2003 deposition, EAC Fitzgerald was asked about this decision.
EAC Fitzgerald also indicated that he did not take any steps to familiarize himself with the investigation, according to his deposition testimony.
In fact, during EAC Fitzgerald's interview of Newsham, he asked a majority of the 44 questions prepared by the FIT investigators. Among the prepared questions he failed to ask, however, was this: "Did any chief within the police department, including Chief Ramsey, order the arrests of the protesters in Pershing Park?" In his deposition EAC Fitzgerald was asked twice whether he asked Newsham if he had consulted with anyone else about the decision to arrest. Twice he responded that he had not asked that question.
EAC Fitzgerald's own presence at Pershing Park before and during the arrests was also not referenced in the report or in the decision concerning who would undertake the questioning of Chief Newsham. Another excerpt from the EAC Fitzgerald deposition:
After the sergeants finished their investigation, Captain Klein wrote the investigative report. According to the deposition testimony of Inspector Ederheimer and Captain Klein, Klein, instead of the investigating sergeants, wrote the final report because it was an important matter, because Inspector Ederheimer wanted the report done well, and because Inspector Ederheimer had confidence in Captain Klein's ability to do a good job.
Captain Klein then wrote the report, signed it, and submitted it to his supervisors. The signed report had the subject line, "Final Report Relative to Complaints of Alleged Misconduct Made at the October 24, 2002, Hearing of the Committee on the Judiciary of the Council of the District of Columbia Concerning the IMF/World Bank Protests." Earlier unsigned drafts of the report that were provided to Chief Ramsey had the subject line "Update Relative to Complaints of Alleged Misconduct Made at the October 24, 2002, Hearing of the Committee on the Judiciary of the Council of the District of Columbia Concerning the IMF/World Bank Protests."
Shortly after completing what was at the time his final signed report, Captain Klein was called into a meeting with Chief Ramsey, Commander Ponton, and Inspectors Wigenton and Ederheimer. According to the deposition testimony of each, during this meeting, several changes to the report were recommended and/or directed. After the meeting, Captain Klein returned to his office and made the directed changes and forwarded one or more revised versions of the report to Chief Ramsey's office. Inspector Wigenton, at the request of Commander Ponton, subsequently asked Captain Klein for an electronic version of the report on disk, which Captain Klein provided to Inspector Wigenton.
At that point additional changes were made to the report in Chief Ramsey's office. The document was sent to Deputy Mayor Margret Kellems who, in turn, shared the report with Councilmember Patterson. The "final report" that ultimately went to Deputy Mayor Kellems and was forwarded to Councilmember Patterson had only one signature on it, that of Inspector Josh Ederheimer. It had no additional signatures despite the fact that it contained blank signature blocks for Inspector Wigenton and Captain Klein. This is due to the fact that the report did not go back through the chain of command after the final version was produced in Chief Ramsey's office, a fact verified by the testimony of Commander Ponton.
When Inspector Ederheimer was asked how his signature came to be on the final version of the report when he had not reviewed the final version until after it was provided to Deputy Mayor Kellems and Councilmember Patterson, he stated that he did not know:
Inspector Ederheimer's electronic signature is on the report because it was on the disk Commander Ponton used to print out the final version of the report. Commander Ponton testified that he did not share the final version of the report with the chain of command prior to sending it to the Mayor's office because he assumed that all of the officials agreed with the changes made. He also stated that the changes he made to the electronic version were changes in format only. The report sent to the Mayor and Council was represented as having the imprimatur of Inspector Ederheimer and others although neither Inspector Ederheimer nor the other officials approved or actually signed the final version of the report.
In interviews the Committee raised questions about this chain of events as it is highly unusual for a confidential OPR investigative report and a violation of MPD general orders. MPD General Order 1202.1 Part I. E. 3. Review of Investigation states:
Officials who receive reports and recommendations, shall review the reports and recommendations and either concur or not concur, stating reasons for non-concurrence. Within three (3) workdays after receipt of these materials, the report and recommendation, together with the reviewing comments, if any, and all additional documents relating to the investigation, shall be forwarded, through channels, to the Commanding officer. Reviewing officials may order further investigation. However, no official shall change any investigation officials' recommendation. [emphasis added]
MPD officials have defended this course of events. Captain Klein testified that he was not troubled with making any of the changes recommended by Chief Ramsey or anyone else, because he agreed with them, and because the changes did not alter the overall thrust of the investigation, which is that the arrests at Pershing Park were made in violation of MPD policy. Captain Klein testified that "nothing jumped out at me to say this is different than what the findings were… My overall point and my overall conclusions were still being made in the report so that did not concern me."
Chief Ramsey defended his actions. In response to the Committee's October 10, 2003 written deposition, he stated:
Yes, I suggested some changes to the report submitted by OPR. I requested that materials be added to the report such as the photos of arrestees restrained by flexi-cuffs wrist to ankle and photocopies of flyers and materials protestors disseminated threatening to shut down the city. The report was incomplete and I directed that the focus should be on the facts related to the events of Pershing Park.
During the Committee's public hearing, Chief Ramsey re-iterated that it was his prerogative to direct the changes because this was an important investigation affecting the department and requested by the Mayor. With regard to the general order, read into the record by Councilmember Patterson, Ramsey cited a later section of the same general order, Part I. E. 5. Bureau Commanders, which states:
Bureau commanders who receive disciplinary reports and recommendations shall review such reports and recommendations and shall either concur or not concur, stating reasons for non-concurrence. Bureau commanders may return the matter to the unit commander for further investigation and may add comments to the report and recommendations before returning them.
The earlier section of the general order states that "Reviewing officials may order further investigation. However, no official shall change any investigation officials' recommendation." The later section referenced by Chief Ramsey states that bureau commanders shall state "reasons for non-concurrence" and may "add" comments to the report and recommendations before "returning them" to the investigating official [emphasis added]. The language infers a scenario in which the reviewing official either concurs or does not concur with the recommendations or, if necessary, denotes any comments or suggested changes in writing and returns the report to the investigating official for further work. Indeed, Chief Ramsey himself described this very scenario as proper procedure during a deposition in International Action Center, et al v, United States of America, et al. He testified that "any member in the chain of command can send an investigation back for further investigation if they feel that's appropriate or of they don't agree with the findings, they can put a cover sheet on that particular investigation, laying out their reasons for not agreeing with the findings of the investigator."
The general order may well not have anticipated the situation that occurred with the Pershing Park report, in which reviewing officials directed changes in content and in recommendations verbally, obtained an electronic version of the report, then made further changes, without the final text being reviewed by the investigating officials and signed by them.
It is also instructive, when evaluating the appropriateness of
what occurred, to review the actual changes made to the report.
Following is a chart that compares the first report finished by
Captain Klein with the final report provided to the Mayor and
As the chart shows, the original report's strong language condemning MPD's actions at Pershing Park was weakened in several instances in the final version. Of particular interest is the manipulation of the report's characterization of the bicycle demonstrators who were corralled and arrested in Pershing Park along with those demonstrators allegedly guilty of blocking traffic and turning over newspaper boxes prior to their arrival at Pershing Park (Assistant Chief Newsham testified that he had given the second group of demonstrators warnings to get out of the street some time earlier that morning. The bike demonstrators were not present when Assistant Chief Newsham apparently gave those warnings).
The final report states that the bike demonstration was illegal and emphasizes that the bike demonstrators broke the law by obstructing traffic. It is true that the bike demonstration was not permitted, but un-permitted demonstrations by themselves are not suitable grounds for arrest. It is further true that Captain Solberg, who commanded the CDU that followed the bike demonstrators around the city that morning, stated during his OPR interview:
While obstructing traffic may be a violation of the law, during his deposition before the Committee, Captain Solberg characterized the bike demonstrators as peaceful and not violent in any way, a characterization confirmed by the testimony of Sergeant Darrick Ross, who also commanded the officers following the bike demonstrators. Further, the only law the bike demonstrators were arrested for violating was Failure to Obey a Lawful Order. Captain Solberg never heard any orders given to the bike demonstrators.
Finally, Captain Klein's original recommendations were changed between the first and final versions, a direct violation of General Order 1202.1. For example, a recommendation that command staff officials receive additional CDU training was changed to a recommendation with an entirely different meaning, that the command structure be re-examined to ensure that officials receive "timely and accurate information from which to base decisions on." Chief Ramsey testified that he asked for this specific change because he disagreed with Captain Klein's opinion on this issue, and that the command staff would not benefit from the same kind of training received by CDU rank and file officers.
Captain Klein's original recommendation was based on the investigation conducted by Sergeants McCoy and McGuire, which found an Assistant Chief without standard CDU training making a decision in violation of MPD policy, resulting in the improper arrest of hundreds of demonstrators.
Chief Ramsey's March 13, 2003 memo to Mayor Williams delivering the final version of the report states "I reviewed the January 25, 2003 report prepared by the Civil Rights & Force Investigations Division of the Office of Professional Responsibility and concurred with the findings." An ironic statement considering the fact that some of the findings were directed by Chief Ramsey to be changed into a form with which he could agree.
The Metropolitan Police Department violated its own general orders by failing to immediately initiate a formal investigation of the wrongful arrests and detention when questions about their legality were raised by MPD officials, the Office of Corporation Counsel, the media, and the Council.
General Order 1202.1, Disciplinary Procedures and Processes, Part I. A. g. 7., states that "Upon observing or becoming aware of a violation of Departmental regulations, officials shall initiate an immediate preliminary investigation." This was not followed in the Pershing Park case, and according to MPD testimony is routinely violated insofar as demonstrations are concerned. According to the deposition testimony of Inspector Stanly Wigenton, Director of MPD's Office of Internal Affairs, it is not standard practice for his office to review after action reports following mass demonstrations. Inspector Wigenton testified that the office of Assistant Chief Alfred Broadbent, Special Services, has this responsibility, and any violations reported in after-action reports are supposed to be reported to the Office of Internal Affairs to be properly tracked and investigated. The testimony of Inspector Josh Ederheimer confirmed this interpretation of MPD practice. Inspector Ederheimer testified that the Office of Professional Responsibility is essentially "re-active" in its investigations, typically starting an investigation only after receiving a complaint. Despite the strong denunciation of the arrests by MPD officials in after-action reports the department failed to investigate its own actions until forced to do so by Mayor Williams following repeated requests by the chairman of the Judiciary Committee.
At the direction of Chief Ramsey, changes were made to the investigative report after it was completed by OPR in violation of MPD general orders. The changes served to weaken criticism of the Department and the nature of the arrests.
The Committee finds this chain of events for a confidential OPR investigative report to be extremely problematic and a violation of MPD general orders. Chief Ramsey's involvement in the production of an internal investigative report regarding a situation in which he was personally involved is highly unusual, inappropriate, and degrades the overall integrity of the investigation itself.
Further, if Chief Ramsey simply did not concur with the recommendations of the report, then he had the option of not acting on its recommendations while permitting the integrity of the report itself to stand. Unfortunately, this did not occur and Chief Ramsey instead directed that his opinions take the place of the findings of the investigating officials.
Again, the only appropriate place for Chief Ramsey's opinion on this matter is whether or not to accept the recommendation of the investigating officials, not whether or not to let the recommendation, based on their investigation, stand in the report.
The decision to have EAC Fitzgerald interview Chief Newsham was a clear conflict of interest given EAC Fitzgerald's role during the arrests. It also appears to have violated a general order giving the right to interview officials to the investigating officers.
EAC Fitzgerald was on the scene of Pershing Park before, during and after the arrests were made and engaged in conversations with Assistant Chief Newsham prior to Assistant Chief Newsham's order to arrest the demonstrators at Pershing Park. Therefore, EAC Fitzgerald, who testified to having approved Assistant Chief Newsham's actions on the scene at Pershing Park, had an obvious conflict of interest with respect to the subject being investigated, and should therefore have not been involved in the investigation.
EAC Fitzgerald and Chief Ramsey testified that they did not have conversations about what questions to ask Assistant Chief Newsham. But EAC Fitzgerald's selectivity with respect to the questions asked rendered the investigation incomplete, at best.
MPD General Order 1202.1, Disciplinary Procedures and Processes, states that "any official who conducts an internal investigation (hereinafter referred to as the investigating official) may require any other member to cooperate in such an investigation" (Part I. E, Internal Investigations). Part I. E. 2. Investigative Procedures states that:
This language indicates that internal affairs investigators have the authority to interview officials regardless of rank, and knowledgeable investigators, not the second in command in the department, clearly should have interviewed Assistant Chief Newsham in this instance. Not only would the interview have been more comprehensive, it would have precluded the conflict that exists given EAC Fitzgerald's presence during the arrests and the subsequent perception that the role of his superior, Chief Ramsey, in the arrest order was off limits to the investigation.
The interview conducted by EAC Fitzgerald was incomplete.
As indicated in the text above, Fitzgerald failed to ask questions drafted by the investigative team, including failing to bring forward the complicity of other senior officials in the decision to arrest individuals at Pershing Park.
The investigation and release of the final report were marked by evasions and misstatements by senior officials including Chief Ramsey, giving rise to the appearance of an attempt to cover up Chief Ramsey's role in ordering the Pershing Park arrests.
As indicated above, the evening of the Pershing Park arrests Chief Ramsey was asked by reporters about charges that the arrests were mishandled. In his written deposition issued October 10, 2003, Ramsey was asked, "When did you first become aware that citizens and arrestees were complaining about the legality of MPD actions surrounding the September 27, 2002 mass arrests at Pershing Park?" His response:
I became aware of the complaints concerning MPD's actions at Pershing Park after some members of the public testified at an October 23, 2002 hearing of the Committee on the Judiciary of the Council.
This answer fails to recall concerns brought directly to Chief Ramsey's attention at the September 27, 2002 press conference, as transcribed above, and the extensive media coverage that followed the arrests.
In response to another question from the October 10, 2003 written deposition, "Prior to the Council Committee on the Judiciary's receiving testimony on this matter on October 24, 2002, did you request or order any review of or investigation into MPD actions at Pershing Park?," Chief Ramsey replied: "A review is conducted after every major event in order to identify and solve any problems that occurred during the event."
This answer belies the fact that the after-action reports written following the Pershing Park arrests did not result in any official investigation. Chief Ramsey did not actually direct OPR to investigate allegations of illegal arrest and excessive force until November 12, 2002, after a November 6, 2002 written directive from Mayor Williams. The fact that OPR was not asked to investigate the Pershing Park arrests until after the testimony before the Judiciary Committee was substantiated by the deposition testimony of the officials who supervised and conducted the OPR investigation, including Inspectors Stanly Wigenton and Josh Ederheimer, Captain Matthew Klein, and Sergeant James McGuire.
This delay, in addition to questionable aspects regarding the conduct of the investigation itself, raises serious questions about MPD's ability to investigate allegations of misconduct in a timely, honest, and thorough manner.
The Department created a conflict of interest by assigning the Assistant Chief, Office of Professional Responsibility, to an operational role during the September 2002 demonstrations, a conflict that continues to exist.
Despite the obvious conflict created by Assistant Chief Newsham having both operational and internal investigation responsibilities, since the Pershing Park investigation he has continued to have an operational role during demonstrations. In fact, Assistant Chief Newsham was an area commander during an anti-war demonstration on April 12, 2003, a day that generated five excessive force complaints to the Office of Citizen Complaint Review and another complaint to the Committee, the complaint from Margaret Luck that is discussed in the "Inauguration, Pepper Spray, and Self-Policing" section of this report. The Committee recommends that the practice of assigning the Assistant Chief of the Office of Professional Responsibility to operational duties during demonstrations cease immediately.
Any questions about the legality of mass arrests, excessive force, or information indicating a violation of MPD policies contained in after-action reports should be automatically referred to the Office of Professional Responsibility and investigated immediately and thoroughly. This likely requires a more formalized interaction between the office of the Assistant Chief, Special Services, and the office of the Assistant Chief, Office of Professional Responsibility, following a mass demonstration.
Investigations of actions of Assistant Chiefs and the Chief of Police should be referred to the Office of the Inspector General and not handled internally by the Department.
The Assistant Chief of the Office of Professional Responsibility should not have an operational role during mass demonstrations.
MPD units and individuals outside of the Office of Professional Responsibility (OPR) should not participate in OPR investigations in any operational way.
Officials reviewing investigative reports should denote, in
writing, their comments and recommended changes to reports and requests
for further investigation, pursuant to MPD policy.
Emerging Issue: Surveillance and Infiltration of Demonstration Organizations
At the time of the inspection of the convergence center described earlier in this report, MPD was just beginning to use undercover officers to monitor the planning and activity of individuals and organizations involved in demonstrations. MPD's use of undercover officers to monitor political activists has been controversial and is currently the subject of litigation. In the civil action, Alliance for Global Justice, et al v. District of Columbia, et al, the plaintiffs allege that "[a]gents posing as political activists infiltrated the demonstrators' organizations and informal groups." Plaintiffs object to this tactic as an unconstitutional form of domestic spying, reminiscent of the Federal Bureau of Investigation's COINTELPRO program during the Vietnam war and creation of the so-called "Red Squads."
This MPD practice has received surprisingly little public scrutiny beyond the current litigation and this Committee investigation. Both constitutional and public resource issues arise from the use of MPD officers to infiltrate and collect data on political organizations and represent serious public policy questions. As described earlier in this report, in 1975 and 1976, it was discovered that MPD was conducting surveillance of and maintaining files on local political activists, including former Councilmembers. The Council at that time held public hearings and introduced legislation on the matter, and MPD implemented reforms, including a new general order governing the practice.23 The Council today, as it did then, has a responsibility to examine MPD's policies and practices in this area, consider the practices in a public forum, and determine and establish the appropriate policy for the District of Columbia.
The Committee examined MPD's use of undercover officers through the issuance of document subpoenas and by conducting depositions of Intelligence Unit officers and employees, including Sgt. Jeffery Madison; former Detective Neil Trugman; Craig Broyles, a civilian analyst; and Assistant Chief Alfred Broadbent. The Committee also conducted depositions of MPD officers who formerly worked undercover24 in order to collect information on the plans and activities of political activists engaged in demonstrations.
Nature of Surveillance by Undercover Officers
The Committee found that the MPD conducted and does conduct surveillance of political organizations for the purpose of learning the nature and details of plans for upcoming demonstrations. MPD does this in different ways, but primarily by monitoring information that is publicly available on the Internet and through other media; sending "plain" or "casual"-clothes25 or undercover26 officers to open meetings of organizers; and by conducting surveillance of organizations through the use of undercover officers.
In both his deposition and public testimony, Assistant Chief Broadbent objected to the Committee's characterization of the work of undercover officers as "infiltration" or surveillance. Assistant Chief Broadbent testified that undercover officers were merely attending public meetings, and that some undercover officers became friends with the organizers and stayed involved with activist groups because of those friendships.
Notwithstanding Assistant Chief Broadbent's effort to minimize the act of infiltration by referring to it as "attending public meetings," undercover officers participated in meetings and activities not as police officers, but as individuals pretending to be activists. They were instructed to and did create false names and fictional personal histories, and dressed in a manner to make them appear sympathetic to the various causes of activists. Using these false identities, they became active members of the organizations – attending meetings, sometimes taking on organizing responsibilities, and participating in demonstrations. Undercover officers, in the words of those former undercover officers interviewed by the Committee, were instructed to "absorb," "infiltrate," or "burrow" themselves into organizations. After undercover officers attended any event in the guise of their false identity, or had any other encounter with an organization, they documented information about the event, including what occurred, what was discussed and who had participated. Within twenty-four hours of the event or activity, this information was summarized in an "undercover officer report" or "UC report" that was then transmitted to MPD's Intelligence Unit. UC reports were then summarized by Craig Broyles and Sgt. Madison and submitted to their chain of command, including Assistant Chief Broadbent and Chief Ramsey.
In his deposition before the Committee, Assistant Chief Broadbent testified that he was aware that this activity took place, but that he does not believe it constitutes infiltration or surveillance. Assistant Chief Broadbent and Sgt. Madison testified that undercover officers were used not to collect information on the political beliefs or personal details of individuals, but to find out whether activists were planning illegal activity or activity that would affect public safety. Assistant Chief Broadbent testified that "the only information I'm seeking is information that would impact public safety…Police officers are told to attend the meetings to listen and observe and hear if there's anything that's going to have an impact on public safety in Washington because my goal is to keep the citizens of this city safe and to avoid a Seattle in Washington."
One former undercover officer testified that the goal of attending meetings was to get into meetings, see if groups were planning civil disobedience "or any other type of criminal activity" and to then focus efforts on those groups. Another former undercover officer testified that "the instructions were to attend the meetings, try to make friends, and try to find out who the key players are and keep our eyes and ears open for activity."
But the nature of the undercover officers' assignments, in reality, was much more intrusive than the limited purpose articulated by Assistant Chief Broadbent and Sgt. Madison. Undercover officers' monitoring of demonstrators was not limited to periods of time immediately before demonstrations or to events related to demonstrations. They monitored the activities of groups for up to a year at a time, and they monitored activities that went beyond the scope of planning for demonstrations or civil disobedience. Because they formed relationships with activists under the guise of their false identities, undercover officers often accompanied individuals on other group activities not related to demonstrations, and reported to the Intelligence Unit on these activities as well. One former undercover officer described the extent of its monitoring of activists this way:
This exchange illustrates the broad scope and intrusiveness of the undercover officers' surveillance of individuals. It created a situation where the every day activities of individuals were reported to law enforcement, unbeknownst to them, regardless of whether the every day activities were criminal or even relevant to the planning of upcoming demonstrations.
No Policy Guidance Given to Undercover Officers
Despite the complex legal questions and extensive constitutional case law surrounding the surveillance of political activists in this country, each undercover officer interviewed by the Committee testified that such officers do not undergo any relevant training before beginning their assignments as undercover officers. Sgt. Madison confirmed that undercover officers do not receive any training before being deployed. In addition, between 2000 and December 2002, undercover officers were not provided with any written guidelines, general orders or other policy documents to follow while conducting surveillance. This is despite the fact that according to press reports from 1975 to 1976, then-Chief Maurice Cullinane issued a general order specific to this kind of activity. The following is an excerpt of deposition testimony of former undercover officers received relative to this issue:
Sgt. Madison also testified that undercover officers were not given any written or even oral guidelines about what sort of activity or non-criminal information would be inappropriate to pursue, including, for example, personal information or information about religious beliefs.
Another former undercover officer was asked similar questions:
This testimony is supported by MPD's responses to document subpoenas issued by the Committee. The Committee requested all current policy documents, general orders and regulations relevant to handling demonstrations, as well as any relevant written policies that came out of litigation related to the May Day demonstrations in 1971 and the Council policy debate related to MPD's surveillance of political activists in the mid-1970s. Only one document provided to the Committee governs the activity or behavior of undercover officers, standard operating procedures (SOP) issued in December 2002.
This SOP was issued approximately two years after MPD began to use undercover officers to prepare for demonstrations. In public hearing testimony on December 18, 2003, Chief Ramsey acknowledged that the SOP had not been formalized as a general order and that that step should occur.
Surveillance in the Absence of Criminal Activity
The December 2002 SOP also does not include policy guidance regarding the circumstances under which it is appropriate to use undercover officers to conduct surveillance. For example, there is no policy requirement that undercover officers be used for surveillance purposes only when there is a reasonable suspicion that individuals or a group of individuals are engaged in or planning criminal activity, though Sgt. Madison testified that this was the deciding factor in practice. While Assistant Chief Broadbent testified that undercover officers were only used for the purpose of collecting information about suspected illegal activity or activity that would affect public safety, testimony received by the Committee indicates that undercover officers were also used for months at a time to monitor nonviolent activists not engaged in criminal activity. The Committee further found that there was often no distinction made by MPD management and officers between minor acts of civil disobedience and criminal activity.
The Committee interviewed one former undercover officer who monitored the activities of a group of activists for several months, during which time the officer did not observe any criminal activity:
On the other hand, each former undercover officer interviewed by the Committee clarified that there were several groups that they monitored that were nonviolent and not involved in criminal activity, but that associated with or supported individuals or groups involved in criminal activity. For example:
Another former undercover officer testified about infiltrating a group that planned and implemented acts such as blocking sidewalks and intersections, slashing tires of police cars, and rushing businesses for the purpose of breaking windows and damaging merchandise. The same officer described a group's plan to take over a building, a plan that was ultimately foiled by MPD because of the information provided in advance by the officer. Each of the former undercover officers interviewed by the Committee testified that they believed that through their assignments, they were able to prevent disruption of the city during demonstrations by providing MPD with information that would not have been otherwise publicly available.
Nonetheless, the former undercover officers interviewed by the Committee testified that they never observed any violence or any criminal activity beyond minor property damage. They testified that they never observed the use of or planned use of explosives, molotav cocktails or weapons, either during demonstrations or at any other time. The one exception with respect to weapons was that some individuals were observed by the witness carrying the knives that were used to slash tires in the incident described above.
Assistant Chief Broadbent testified that the information gained through the use of undercover officers prior to the January 2001 Presidential Inauguration helped to prevent a "catastrophic event" in the District, but he declined to provide any additional details of this event or any other event prevented through the use of undercover officers, citing law enforcement privilege.27 More broadly, he testified that MPD was able to prevent planned property damage and violence to individuals by sending police officers to specific locations or individuals that were alleged to be targeted. Sgt. Madison testified that he believed the use of undercover officers prevented millions of dollars worth of property damage in the District, as well as the disruption of people's lives. He also said the work of undercover officers prevented minor criminal acts from escalating into serious violence.
Maintenance of Information on Activists
Among the constitutional concerns related to law enforcement surveillance of political activists, in addition to concerns about the invasion of individuals' privacy, are concerns about what kind of information is collected on individuals and how that information is maintained. After revelations about the FBI's COINTELPRO program became public, it was discovered that the FBI was maintaining files on political activists based on constitutionally protected content, for example, political ideology, in the absence of criminal activity. Through the use of document subpoenas and deposition testimony, the Committee attempted to establish whether MPD has a policy of or is in the practice of maintaining files on individual political activists.
In response to requests through a subpoena for "All documents related to MPD's policy on the collection of information and maintenance of files of demonstrators," MPD responded that "We have not located any documents that are responsive to this request." In response to a request for copies of all records or dossiers on specific activists, MPD responded, "We have not located any responsive documents. If these persons were arrested, the department might have records of their arrests." The SOP on the use of undercover officers does not include any policy guidance on how to maintain information, or about what methods of maintaining information would be unconstitutional.
The former undercover officers interviewed by the Committee testified that the extent of their maintenance of files was limited to the UC reports that they submitted to their chain of command, as described above, and that they did not know what happened to those UC reports once they were submitted to the Intelligence Unit. They testified that they would record names of individuals involved in certain organizations in a general sense, but that they were not in the practice of identifying individuals and recording identifying information in detail. One former undercover officer testified to paying particular attention to and recording the activity of "key players" in the organization, or of individuals particularly antagonistic to the government and likely to cause "trouble" during demonstrations.
The Committee did receive testimony about a manual or book maintained by the Intelligence Unit that contains information, including some photographs, of demonstrators arrested during the April 2000 IMF/World Bank demonstrations. Both Craig Broyles and Sgt. Madison testified, however, that the information was limited to people with arrest records and that this practice was not repeated after April 2000 because it was too labor-intensive to do regularly.
Both Sgt. Madison and Craig Broyles testified repeatedly that the Intelligence Unit does not maintain files or dossiers on individual political activists. Mr. Broyles testified that the only files he keeps related to activists and demonstrations are in the form of UC reports or "source material," including, for example, information from the Internet. Sgt. Madison gave similar testimony. They both testified that the information collected by the Unit in relation to demonstrations is event-driven and focused on activities, planned or actual, of activists. Sgt. Madison testified that after a demonstration has taken place, these files may be purged, depending on space needs in the office.
The Committee did review a sample of redacted memos submitted by the Intelligence Unit through the chain of command that were presumably based on UC reports. These memos listed general information about plans for demonstrations, including for example, the number of people expected to participate and whether any civil disobedience was being planned. Some memos do appear to include information about the activity of key organizers in certain groups.
Assistant Chief Broadbent also testified that the information he maintains is related to specific events, and that he does not keep track of individual activists. In his prepared testimony, however, he referred to a conference on civil disobedience held at American University in January 2000 which featured speakers who, he said, had been leaders of the demonstrations in Seattle the previous December. Asked by Special Counsel Mary Cheh how he knew that these individuals were leaders of the demonstrations when MPD did not keep dossiers on such individuals, Broadbent said, "We had met with Seattle authorities…We had discussed with Seattle who some of their key players were, and what worked, what didn't work for them. So we could learn from their mistakes and implement things they thought did work." With regard to the conference, he said police officers attended in plain clothes, "and from that they brought back information from individuals who said that they were involved in Seattle, what they did in Seattle, what you can do to overcome law enforcement, how you can bottleneck law enforcement."
Notwithstanding the testimony by MPD leadership that the department does not keep files on individuals engaged in demonstrations, the department's operational planning documents name specific leaders of specific organizations. While this information is already in the public domain (media, Internet) it also apparently is or was maintained in some form in order to be included in department planning documents. In the operational plan for the April 2000 IMF-World Bank meeting, the department described "Reclaim the Streets" as an international organization with local chapters pressing for more walking, cycling and use of public transportation. "Washington D.C. does not have a chapter, however, a representative from the New York City chapter, Chuck Reinhardt, has attended meetings of the Mobilization for Global Justice and plans to continue coming down on a regular basis," the plan notes. It also listed "key organizers" of each major organization involved in the April 2000 demonstrations, noting in each case "no photo at this time."
In addition, a briefing for Councilmembers on March 29, 2000, included a handout with a page that listed a total of 10 names and affiliations of "key organizers" of the anti-globalization protests. Finally, an instruction also included in the April 2000 planning documents with reference to an event the weekend before the international meetings, states: "Photographs and video will be taken of individuals believed to be coordinators of the upcoming IMF/World Bank event."
Allegations of the Use of Agent Provocateurs
Another concern about the constitutionality of the use of undercover officers relates to the potential for undercover officers to disrupt protected political organizing, either through their mere presence or through their actions. In civil action International Action Center, et al v. United States, et al (including the District of Columbia), the plaintiffs allege that MPD has a policy and practice of disrupting protected First Amendment activity through the use of agents provocateur. Related allegations have included the use of plain-clothes officers to initiate physical violence during demonstrations; and the use of undercover officers to pose as organizers and either encourage illegal activity within organizations, or take on organizing responsibilities that would then not be fulfilled.
Through testimony and a review of MPD policy documents, the Committee did not find any evidence substantiating that MPD has a policy of using undercover officers to disrupt political organizations in this manner. In fact, MPD policy as articulated in deposition and public hearing testimony is for undercover officers to observe rather than to participate.
Some of the deposition testimony of former undercover officers substantiated this policy directive in practice. One officer testified:
The former undercover officers testified that they were never instructed by MPD officials, nor did they ever on their own, encourage illegal activity within the organizations they infiltrated. They also testified that they never intentionally disrupted organizations by not carrying out organizing responsibilities, though one officer testified to being instructed by MPD officials to not undertake or fulfill any responsibilities that required illegal activity or acts of civil disobedience.
Sgt. Madison did testify that there was one incident in which an undercover officer made a statement in a meeting encouraging illegal behavior. Sgt. Madison testified that when this incident came to his attention through a UC report, he counseled the officer in question and instructed the officer to refrain from similar behavior in the future.
Beyond this example as described by Sgt. Madison, the Committee was not able to confirm with certainty whether there have been instances of agent provocateur-type behavior on the part of MPD officers in practice, as has been alleged. But the Committee has not investigated each of the allegations that has been made, nor was doing so part of the scope of the Committee investigation, which was more focused on questions of policy and general practice than on specific instances of misconduct. The Committee, nonetheless, is concerned that allegations of the use of agents provocateur have not been taken seriously or thoroughly investigated by MPD.
MPD assigned undercover officers to conduct surveillance of political organizations and activists in the absence of criminal activity.
Though plans for some minor criminal activity, primarily property damage and plans to disrupt traffic, were uncovered through the use of undercover officers, the question remains for policymakers whether the extent or degree of activity justified the invasion of privacy and dedication of resources required to conduct the undercover operation. The Committee also found a troubling tendency of MPD officials and officers to equate nonviolent civil disobedience with serious criminal acts and threats to public safety.
The Committee has received testimony about the profound chilling effect the use of undercover officers has had on local activists in recent years, activists who have opened their homes and lives to police officers who subsequently reported on their daily activities. Considering the amount of serious violent crime that continues to plague the District and the overwhelming concern in neighborhoods about the need for a more visible police presence, the questions for policymakers must be: Should MPD officers be used in this way? And is it worth it? Having established that MPD did use undercover officers to conduct surveillance of political activists, the Council now has a responsibility to answer these questions with legislative remedies.
MPD assigned undercover officers to conduct surveillance of political organizations and activists without giving those officers any relevant training or policy guidance. MPD did not issue any guidelines in this area until December 2002, over two years after it started using undercover officers for this purpose. Current guidelines are not sufficient.
Given the constitutional complexities and history associated with the surveillance of political activists, including a policy debate in the District in the mid-1970s spurred by similar MPD tactics, it was a significant failure on the part of MPD management to initiate such an operation without any policy guidance or instruction to those officers assigned to work undercover.
In addition, the two-page SOP issued in December 2002 is not as comprehensive as is called for given the legal complexities. There is no threshold provided as to when undercover surveillance of an organization is warranted, for example, that it should be conducted only when there is reasonable suspicion that an individual or organization is planning or participating in illegal activity. There are no instructions on what kind of information should be maintained on groups and individuals, including what methods of maintaining information are acceptable or may be unconstitutional.
The Committee found no clear evidence that MPD maintains dossiers on individual political activists, but MPD documents political activity in the absence of policy guidance.
MPD does maintain "running resumés" on the activities of individuals, in the form of reports that track the interaction of undercover officers with political activists. These reports summarize daily activities of individuals beyond planning for demonstrations without regard for whether the activities are criminal.
In addition, as noted above, there are no safeguards in place to prevent inappropriate collection of information on individuals. There is also no standardized method of purging information on individuals not related to criminal activity or plans for criminal activity.
Finally, notwithstanding MPD testimony on this point, it is not clear what the Intelligence Unit's policy is with respect to the maintenance of information on individuals actually engaged in serious criminal activity. MPD simultaneously claims that the Unit collects information by events, but also claims that some individuals are of concern because they engage in criminal activity. In the event that MPD has a legitimate concern about a particular individual it is not clear how information is stored in an easily accessible way to achieve MPD's stated goal of protecting public safety.
The Committee found no evidence that MPD has a policy of using agents provocateur, though specific allegations of this kind of activity have not been sufficiently investigated.
The most compelling allegation of the use of agents provocateur was the pepper spray incident described earlier in this report (see "Inauguration, Pepper Spray and Self Policing" section of this report). That instance alone should have prompted a thorough examination of individual officers' actions in this area.
MPD should conduct intelligence solely for a legitimate law enforcement purpose.
Before police undertake surveillance of any group engaging in constitutionally protected expression or freedom of association, there should be reasonable suspicion to believe that the group is engaging in, planning to engage in, or about to engage in criminal activity.
MPD should be prohibited from using undercover officers to conduct surveillance of individuals or organizations based solely on the content of their political speech or ideology
Surveillance in this context should be expressly approved by the Assistant Chief for Special Services, be time-limited in duration, and be conducted in a manner that is not more extensive or intrusive than is justified by its purpose.
MPD should be prohibited from using agents provocateur
MPD should be required to have an internal oversight mechanism once an undercover operation is underway that, on a regular basis, reviews the activity of and information gained by undercover officers and determines whether undercover surveillance is still warranted.
Officers engaged in surveillance should report regularly to the Assistant Chief for Special Services. MPD should immediately cease such surveillance once facts made known to them no longer support reasonable suspicion.
MPD should be prohibited from maintaining files or dossiers on individuals in the absence of criminal activity and be required to purge files unrelated to criminal activity
One of the most serious findings of the Committee's investigation is a pattern of evasion and misrepresentation by Chief Ramsey and senior members of his command staff. In statements made on the public record over the last three years, in deposition testimony, in answers to questions posed in the course of U.S. District Court litigation, and in responses in the panel's public hearings in December, members of the senior ranks in the department sought to evade direct answers to important questions and, in some instances, misrepresented the record and their role in Departmental actions.
Many of these examples have been described in earlier sections of this report. The gravity of this finding merits clear delineation of the record established by the Committee and that is the purpose of this section of the report.
Prohibited conduct for an officer of the Metropolitan Police Department includes making a false statement, an offense with a penalty ranging from 15 days suspension to removal. The definition of the offense, contained in the MPD General Order 1202.1 follows:
The specifics findings of misrepresentation and evasion follow.
In February 2003 testimony before the D.C. Council Chief Charles Ramsey denied that he had a role in the decision to arrest individuals in Pershing Park in September 2002.
Once it became clear that the mass arrests made at Pershing Park on September 27, 2002, were and would remain controversial and bring criticism to the Williams Administration, Chief Ramsey and his immediate subordinates sought to minimize the chief's own role in the decision and the outcome. The following outlines Chief Ramsey's changing public statements with regard to the arrests at Pershing Park – first his statement the day of the arrests, then his response to direct questions at a Judiciary hearing on February 25, 2003, and finally an exchange with Special Counsel Mary Cheh during the December 18, 2004 hearing.
At a press conference in front of MPD Headquarters the evening of September 27, 2002, the day 647 demonstrators were arrested, approximately 400 of them in Pershing Park, with Mayor Williams and Deputy Mayor Kellems present, this exchange took place between a reporter and Chief Ramsey:
At a February 25, 2003 hearing before the Judiciary Committee Councilmember Patterson asked, "And whose decision was it to make the arrests in Pershing Park that day?" This exchange followed:
Finally, Chief Ramsey was questioned about the arrests and the decision-making by the Committee's Special Counsel, Professor Mary Cheh, during the December 18, 2003 investigation hearing. The entire exchange is included.
Chief Ramsey's final heated testimony on December 18, 2003, that he
There has been a persistent effort by MPD leadership to exaggerate the numbers of and threat posed by anti-globalization demonstrators.
Prior to the September 2002 IMF/World Bank demonstrations, Chief Ramsey told the Council and media that MPD expected 20,000 to 30,000 demonstrators that weekend. MPD's own operational plans indicate that MPD expected no more than 4,000 demonstrators (see "Pershing Park Arrests" section of this report).
After Fire/EMS and MPD shut down the demonstrators' convergence center in April 2000, Chief Ramsey and then-Executive Assistant Chief Terry Gainer told reporters that demonstrators were making homemade pepper spray and molotov cocktails. During an April 17, 2000 television story by The News with Brian Williams, Chief Ramsey stated "They were making homemade pepper spray." An April 15, 2000 Associated Press story reported "officers seized a plastic container with a rag stuffed inside and what looked like a wick, said executive assistant chief Terry Gainer. He said it 'looks like a Molotov cocktail." These statements are not corroborated in the Fire/EMS records on materials actually recovered at the convergence center, or by the testimony of MPD and Fire/EMS witnesses (see "Convergence Center" case study section of this report).
Both Chief Ramsey and Assistant Chief Alfred Broadbent, Jr. expressly denied that the Department directed protesters into Pershing Park.
In testimony December 18, 2003, Chief Ramsey several times asserted that the Department had no information on plans for demonstrators to congregate in Pershing Park. "We don't know why they went to the park," he said, and, "We don't have any knowledge of where they were going to be."
Chief Broadbent, asked specifically if "the police were in any way funneling them or directing them" to Pershing Park, responded, "No we were not."
These statements contradict the intelligence included in the operational plan for the weekend and information shared by Chief Ramsey with Councilmembers a week before the trade meetings that indicated that MPD knew the exact schedule of the demonstrators that morning. The statements are also contradicted by the Committee's investigation which found that a significant number of demonstrators were directed into Pershing Park by MPD officers (this finding is discussed in detail in the "Pershing Park Arrests" section of this report), as well as the record of MPD's own internal report on the Pershing Park arrests, in which officers interviewed described their own actions that morning to direct marchers and bicycle riders into Pershing Park. The version of the investigative report submitted to Chief Ramsey by the Force Investigation Team described police actions using the words "shepherded," "escorted," and "directed," which were changed to "monitoring," "followed," and "allowed" to reflect the absence of direction.
Chief Ramsey testified that following the FIT investigation into the Pershing Park arrests, he implemented certain requirements in MPD policy and procedure, but some of those requirements have existed in MPD policy since 1978.
At the Committee's December 18, 2003 hearing, Chief Ramsey testified that he directed that ten actions be taken "in order to more fully address the deficiencies identified during our internal investigation." The actions listed by Chief Ramsey included "tighter procedures on issuing warnings for crowds to disperse," and "the use of an operations log to document all actions taken during an event."
Yet the May 2003 SOPs on demonstrations issued by Chief Ramsey has language concerning both the issuance of warnings for crowds to disperse and the commander's event log is identical to the language on both subjects contained in the 1978 demonstrations handbook.
Assistant Chief Brian Jordan claimed he did not participate in discussions among command staff members prior to the arrests at Pershing Park, information contradicted by four witnesses, including three MPD officials in their sworn testimony.
Several officials who were present at Pershing Park, including Assistant Chief Peter Newsham, Captain Andrew Solberg, Captain Ralph McLean, and U.S. Park Police Captain Rick Murphy, testified that Assistant Chief Brian Jordan was an active participant in discussions and operational orders given before and after the order to effect the mass arrest
U.S. Park Police Captain Rick Murphy, who was on the scene of the arrests at Pershing Park, was interviewed during the MPD Force Investigation Team (FIT) investigation into the Pershing Park arrests. Captain Murphy told FIT Sgt. James McGuire that he participated in discussions with Assistant Chiefs Newsham and Jordan before and after the decision was made to make a mass arrest at Pershing Park. He stated that after the decision was made, Assistant Chief Jordan asked Captain Murphy to use his horses to push the protesters to the north side of the park, a request that Captain Murphy denied.
During the same FIT investigation, Captain Solberg told FIT Sgts McGuire and McCoy that upon arriving at Pershing Park, he met with Assistant Chiefs Jordan and Newsham and was told to take his CDU platoons and shut down the south and east sides of the park.
Assistant Chief Jordan testified, however, that he had no role in operations or discussions at Pershing Park. He testified that after arriving at Pershing Park from an earlier mass arrest scene at Vermont Avenue and K Street, NW:
Assistant Chief Jordan was asked specifically about the statements of Captain Solberg and USPP Captain Rick Murphy, and he denied participating in those conversations. He testified that "the only conversation I had was, significant conversation was with Deputy Superintendent Huberman."
Chief Ramsey and Assistant Chief Broadbent in Council testimony denied or sought to diminish the seriousness of alleged violations of the rights of political activists.
During his deposition and public hearing testimony, Assistant Chief Broadbent refused to characterize the work of undercover officers assigned to monitor political activists as "infiltration." He testified that officers were merely "attending public meetings" to learn about the plans of demonstrators. Assistant Chief Broadbent's characterization of the work of undercover officers fails to acknowledge the extent or invasive nature of surveillance of activists. Former undercover officers testified before the Committee that, for months at a time, they assumed false identities as activists and became members of political organizations. In their words, they "infiltrated" organizations and reported to the Intelligence Unit on the daily activities of individuals. These reports were sent up their chain of command, including to Assistant Chief Broadbent.
In a November 14, 2003, deposition in the litigation, International Action Center, et al, v. United States of America, et al, Chief Ramsey repeatedly refused to answer a direct and straightforward question about ensuring that undercover officers do not violate civil rights. With apologies for the repetition, the efforts by the plaintiffs' lawyer, Mara Verheyden-Hilliard, to secure an answer are included here verbatim:
Public officials are responsible for their actions including providing information concerning the performance of their duties when questions are raised within a legitimate fact-finding setting, whether that setting is a D.C. Council hearing or a court proceeding. In the deposition quoted above, Chief Ramsey failed to meet even minimal standards for responding to legitimate questions. The end result: the chief of police of the District of Columbia presents himself as someone who dismisses the importance of safeguarding the Constitutional rights of political activists, fails to recognize the legitimacy of the judicial process, and fails to hold himself accountable for providing information in a legitimate setting.
Senior officials in the Department displayed a pattern of evasion in their depositions by claiming not to recall certain events – claims that are implausible on their face.
The same failure to perform the duty of a public official to account for himself and his actions within a legitimate fact-finding setting is evident in the next set examples as well. Some MPD witnesses persistently refused to answer even the most innocuous questions.
Executive Assistant Chief Michael Fitzgerald
Executive Assistant Chief Michael Fitzgerald, second in command in the Department, conducted the interview of Assistant Chief Peter Newsham about the arrests at Pershing Park as part of the FIT investigation. The inappropriateness of EAC Fitzgerald having conducted this interview, since he is outside of the Office of Professional Responsibility and since he was present and approved of the arrests at Pershing Park at the time of that decision, is discussed in the "Pershing Park Investigation" section of this report. The investigating officials provided EAC Fitzgerald with a series of questions to ask Assistant Chief Newsham during the interview. Several of his responses to questions about the decision for him to do the interview, and whether he received questions prepared by the sergeants who conducted the investigation, follow:
Commander William Ponton
Commander William Ponton is Chief Ramsey's chief of staff, essentially controlling the paper flow into and out of the chief's office. He was asked about the meeting called by Chief Ramsey and attended by several senior officials at which Captain Klein of the FIT was directed to make changes and additions to the investigative report about Pershing Park. Exchanges with Commander Ponton follow:
Sergeant Michael Thornton
Sgt. Michael Thornton also works in the chief's office as an administrative sergeant handling correspondence. He occasionally accompanies the chief of police as his driver, and, during recent demonstrations, as a provider of personal security for Chief Ramsey. He accompanied Chief Ramsey on September 27, 2002, including stops at two sites of mass arrests, at Vermont Avenue and K Street, and at Pershing Park. Questions and his responses to counsel questions about Pershing Park follow:
Sgt. Thornton also was asked about the arrests. Despite the fact that approximately 400 people were arrested while he stood at the corner of 14th Street and Pennsylvania Avenue, Sgt. Thornton testified that he could not remember any specific details about those events. His responses:
In closing, it should be noted that the Committee did receive testimony from several MPD officers and officials who took the Department's guidelines on false statements and the role of the Council's investigation very seriously. These witnesses provided truthful and careful testimony, some perhaps at risk to themselves and their careers and despite, it seems, a climate of fear within the department that does not encourage such cooperation. To those witnesses, the Committee extends its admiration and gratitude.
EMERGING ISSUES: Departing from Best Practice in Managing Demonstrations
From the late 1970s until 2000 the Metropolitan Police Department enjoyed a reputation for professionalism in handling the hundreds of demonstrations that took place in the nation's capital. In their testimony December 17, 2003, former Deputy Chief of Police AND Commander, Special Operations and Traffic Division, Robert Klotz and former ACLU legal counsel Ralph Temple recounted the history of difficult, challenging events monitored and managed by MPD without major controversy during that period: the "tractorcade" of farmers camped on the Mall for close to a month in 1978; marches by Iranian students in the 1980s in the midst of strong anti-Iranian sentiment in this country; the Million Man March in 1995 that was a major public concern based on the sheer number of participants. These large-scale events were opportunities for the department to present itself as a best-in-class agency, well-trained and well-lead. A major conclusion by the Committee, underscored by the two witnesses, is that the Metropolitan Police Department today is not what it was in the immediate past, with potential repercussions for the future. Temple's testimony on this point:
If the MPD was faced tomorrow with managing a controversial political protest event that drew close to 100,000 persons – as was the case on May Day, 1971 – there is nothing in the record of the last four years to indicate the department could respond successfully. This is a serious concern for District residents and a serious concern for all who wish to exercise their First Amendment rights in the nation's capital. A discussion of the specific issues in managing demonstrations follows.
Command and Control
Prior to the IMF/World Bank meetings in April 2000, MPD rarely mobilized the full department to prepare for demonstrations. Since mass demonstrations requiring full mobilization have become more regular in recent years, Chief Ramsey has implemented changes in the command and control structure to accommodate full mobilization. The overall effect of these changes has been the dilution of civil disturbance unit (CDU) expertise and a weakening of effective incident command and management.
According to deposition and public hearing testimony, over the last twenty years, it was typical to have the Special Operations Division (SOD) Commander act as the field commander during mass demonstrations. The SOD Commander typically had extensive career CDU experience28 and fulfilled the role of incident commander during demonstrations, making final decisions about the deployment of manpower and the initiation of mass arrests. The SOD Commander also typically relied on assistance from captains and lieutenants with similar career CDU experience.
More frequent full mobilization of the Department since 2000 has lead MPD to rely on the entire command staff during demonstrations, and Chief Ramsey has designed a command and control structure in which the demonstration area is divided into quadrants, with each quadrant and its civil disturbance officers and officials being commanded by an assistant chief. This has resulted in incident commanders being designated as a result of their rank, rather than the extent of their CDU experience.
The original version of the report of MPD's Force Investigation Team investigation into the Pershing Park arrests contained a finding, noting that:
This recommendation was removed from the report prior to its transmittal to the Mayor and Council. Nonetheless, the Committee reached the same conclusion. Asked about this phenomenon of relatively unseasoned command staff members making important tactical decisions in the absence of extensive CDU training, Assistant Chief Alfred Broadbent indicated that the CDU captains and lieutenants have a responsibility to speak up and advise assistant chiefs on field decisions on the basis of their own CDU training and experience during mass demonstrations. This assertion during his deposition belies the environment that exists within the department such that challenges to a superior officer are not merely ignored but could be punished, formally or informally. For inexperienced command officials to routinely rely on more experienced subordinates requires agency management that is more open and self-critical than is the case with MPD today.
The change in command structure instituted under Chief Ramsey has also, according to after action reports dating back to April 2001, resulted in general command and control confusion, and what has been labeled by many witnesses as akin to the "too many cooks in the kitchen" syndrome. Also, as one commander put it, the command structure has become so tall, that the upward flow of information from officers to command officials gets distorted. Contributing to this problem is the expansion of MPD's Joint Operations Command Center, where an incident commander, typically the Assistant Chief of Special Services, manages support resources and the movement of CDUs. An after action report submitted by Commander Willie Dandridge after the September 2002 Pershing Park arrests is typical of other comments on this issue from after action reports and testimony. Commander Dandridge noted:
Crowd Management/Arrest Procedures
As described in more detail in the "Demonstrations in the District of Columbia" section of this report, in 1978, following the May Day litigation, MPD issued guidelines on mass demonstrations. In addition to these guidelines, MPD uses an operational plan for each mass demonstration that outlines policy and detailed operations for specific events.
The Committee reviewed several versions of MPD's guidelines in place during the last 25 years, as well as various operational plans, and examined their implementation through the case studies described earlier in this report. The Committee drew three major conclusions from this review. First, the tone of MPD's policy has shifted in recent years towards the assumption that demonstrators are likely to break the law or cause civil disturbances, and in some instances has moved away from court recommendations in the 1970s. Second, the primary elements of MPD's articulated policy for handling demonstrations, which emphasize the protection of First Amendment rights, the use of arrests as a last resort, and de-escalation with respect to crowd management, are generally sound. Third, MPD has strayed from its articulated policy in recent years during mass demonstrations where there is a potential for civil disobedience.
During his public hearing testimony, Robert Klotz, who served as deputy chief of police of the Special Operations and Traffic Division following the May Day era litigation, expressed concern about a tendency of police departments in recent years to blur the line between protecting demonstrators' rights to demonstrate and managing civil disturbances. "A parade and a demonstration is not a civil disturbance," he said during the December hearing, "and a civil disturbance is not a parade or a demonstration." He indicated that the effect of this blurring has been to encourage overreaction by police and an escalation of tension. He said using a show of force, such as a large number of officers or a police line, is a legitimate tactic in a civil disturbance. "But a show of force in a demonstration is ill-advised," Klotz said. "If you use a show of force in a relatively peaceful demonstration you are actually setting a tone that I don't think the police should be setting."
This concern was reiterated by Timothy Lynch, Director of the Cato Institute's Project on Criminal Justice, who testified that American police departments over the twenty years have become more "militarized" and the rights of individuals have suffered as a consequence. The military mission, he said, is to maximize use of force, while the police mission is, or should be, to use the least amount of force.
The shift referenced by Mr. Klotz and Mr. Lynch is evident in the evolution of MPD's mass demonstration policy between 1978 and the present, and can be demonstrated by comparing the 1978 handbook and the current SOP. This is most obviously reflected in the change of the names of the documents. The 1978 manual is called the MPD Handbook for the Management of Mass Demonstrations. The 2003 SOP issued by Chief Ramsey is called the MPD Standard Operating Procedures for Mass Demonstrations, Response to Civil Disturbances & Prisoner Processing.
The introduction to the guidelines, their articulated purpose, and their statements of policy reflect this same shift. For example, the following is the statement of policy in the 1978 handbook:
The statement of policy of the 2003 SOP is almost identical to the statement above, yet has subtle and significant changes, which are noted inside the text below. Note the deletion of the qualifier included in the 1978 document that crowd management is necessary when there is unlawful conduct within a mass demonstration, changed to an inherent assumption that, during mass demonstrations, MPD will have to manage the crowd and restore order:
It appears that these specific changes occurred some time between 1978 and 1996, as they are also reflected in the 1996 edition of the handbook, the MPD Manual for Mass Demonstrations and Responding to Civil Disturbances.
The Committee also found instances of new language inserted into the 2003 manual that appears to stray from the intent of May Day era court rulings. For example, there is new language in the 2003 SOP regarding the documentation of information surrounding mass arrests. One of the courts' most significant criticisms of MPD during the May Day litigation concerned MPD's suspension of the use of its field arrest forms during mass arrests in 1971. The 2003 SOP makes repeated references to the importance of this issue of documentation. But it also includes new language that allows this process to be suspended:
The 2003 manual also includes language, dating back to 1978, requiring unit commanders to keep "commander's event logs." This reflects another policy regarding documentation that has been ignored in practice in recent years. These logs are required to record occasions requiring "the use of force; tactical orders issued to personnel; orders received from higher authority; significant acts on the part of the demonstrators; incidents involving mass arrests; and complaints alleging serious police misconduct." The only commander who maintained an event log during the September 2002 demonstrations was Assistant Chief Brian Jordan. In response to a written deposition issued by the Committee that asked whether commander's event logs were used during mass anti-globalization demonstrations in recent years, Chief Ramsey stated:
The running resumé produced in the Joint Operations Command Center does not provide an eye-witness account of the circumstances surrounding a mass arrest, a form of record-keeping that is required of commanders and arresting officers in order to establish probable cause and to defend arrests in court.
Aside from the overall shift in tone and questionable additions to the 2003 SOPs, several aspects of MPD's articulated policy for handling mass demonstrations are sound. As the statement of policy quoted above states, non-arrest methods of crowd management are preferred. This policy was re-iterated by the deposition and public hearing testimony of several MPD witnesses.
MPD's use of force policy, consistent with the 1978 policy, states that "in managing a crowd, the policy of this department is to use the least stringent force necessary…The application of force by a unit or element of it shall be immediately discontinued upon a determination by the ranking official on the scene that the condition, which required the use of force, has been alleviated." The 2003 SOP requires that all instances of use of force be documented.
The 2003 manual also includes language dating back to 1978 that requires the collection of information necessary for advanced planning for demonstrations, and encourages negotiations and communication with demonstration organizers as far in advance of demonstrations as possible. It emphasizes using only the level of manpower that is necessary for the threat level associated with the demonstration, and encourages officers to remain neutral and not engage in "demonstration-related discussion with participants" or to respond to verbal harassment from demonstrators. It warns that officers who "attempt to avoid identification through removal of the badge or name plate will be considered a violation of department orders and will be dealt with accordingly."
Finally, the 2003 SOP includes language identical to language in the 1978 handbook that allows use of a police line:
The manual only allows for crowd dispersal:
As described earlier this report, MPD policy requires a series of clearly audible warnings before officers can make arrests.
While MPD may have articulated sound policies in important areas, including in the area of crowd management, the department has violated its own policies on several occasions in recent years, usually during mass demonstrations with a potential for civil disobedience. For example, as already discussed in the "Pershing Park Arrests" section of this report, MPD did not give warnings before conducting mass arrests of nearly 600 demonstrators in 2002.
Also, according to the testimony of public witnesses and some MPD witnesses, MPD increasingly has used police lines to surround and detain demonstrators over the last four years as a means of crowd control, rather than as a means of controlling the potential for violence, or as a means of conducting a mass arrest. This tactic of "trap and detain," has at times kept demonstrators detained for considerable lengths of time, against their will. It should never be used on nonviolent demonstrators or in the absence of the potential for unlawful activity. To do so is a violation of current MPD policy and is arguably tantamount to, at best, disruption of individuals' First Amendment rights to demonstrate and, at worst, false arrest.
Command Staff Attitude
Another element in the movement by the department away from best practices has to do with attitudes adopted or learned toward demonstrators themselves. Senior leaders, notably Assistant Chief Alfred Broadbent and Assistant Chief Peter Newsham, made startling comments in their deposition testimony when describing the political activists who lead and participate in demonstrations. Assistant Chief Newsham described the briefings prior to the September 2002 demonstrations: "There was a lot of talk and a lot of information that was shared with us regarding the anarchists. They're out on the West Coast and they were largely responsible for the problems that they had in Seattle."
Assistant Chief Broadbent essentially said in his deposition that he could tell by looking at a demonstrator that he or she will commit a criminal act. He testified:
There are two points here. Demonstrators have had cause in the past to fear police use of pepper spray and will explain that they are advised, and advise others, to wear or carry scarves and other apparel to cover the face if necessary to avoid inhaling chemicals. Second and more significant: basing a police decision to arrest or detain merely on the appearance of one or more individuals represents a form of profiling and runs counter to departmental policy as well as case law.
In his deposition and public testimony, Assistant Chief Newsham said he believed the crowd at Pershing Park was dangerous. Other contemporaneous descriptions indicated otherwise. A television reporter, in a live report as the bicyclists arrived at Freedom Plaza and officers surrounded Pershing Park, said, "They've surrounded this group here…We have a lot more police officers than demonstrators…No violence, no incidents here other than chanting and placard carrying here at Pennsylvania as reinforcements come in to help police officers surround and contain this group.29
The department's own videotape of the scene at the park showed a number of persons to be colorfully dressed, but gave no indication of any menace present in the crowd, either through the presence of any kind of weapons or angry expressions on those in the crowd. To the contrary, the MPD tape repeatedly shows participants anxiously asking to be released from the park. During his deposition, Assistant Chief Newsham was asked to explain his belief that there was danger present in Pershing Park.
A few minutes later in the deposition Chief Newsham asked to go back to recount other thoughts he had during the Pershing Park arrests:
Assistant Chief Newsham's own perception of danger inherent in the scene at Pershing Park indicates a lack of knowledge and expertise in crowd management – a lack of the level of expertise former SOD Commander Robert Klotz brought to the job, for example.
Other images of MPD officers captured on videotape of demonstrations in September 2002 and April 2003 show officers visibly nervous – repeatedly rapping a palm with a baton, for example, or shifting from one foot to another while manning a police line. That image contrasts with the description former SOD Commander Klotz provided of MPD officers holding up even when hit with eggs and other missiles aimed by onlookers at Iranian students engaged in protest marches in the 1980s. To be sure, the videotape images do not represent the vast majority within the Department who take their CDU training seriously and perform professionally. But the possibility that unseasoned officers are made anxious by command staff rhetoric is worrisome. "If you don't have competent officials, and competent, well-trained officers, your plans are relatively worthless," Klotz testified.
Under current leadership, the Metropolitan Police Department has failed to effectively manage controversial political demonstrations, giving rise to concern about its ability to manage these events in the future.
Consistent with the original Pershing Park report, all police executives need to be CDU trained or re-trained. It is important that those charged with incident command during demonstrations be those most experienced in crowd management.
MPD should streamline its communication structure so that one Incident Commander is consistently making field command decisions during mass demonstrations.
Prisoner Processing & Use of Restraints
Ideally, MPD would not conduct mass arrests on a regular basis. But in the event large numbers of arrests are necessary, MPD should have the capacity to process prisoners in a reasonable amount of time. According to after action reports dating back to April 2000, technological problems have consistently plagued MPD's mass arrest prisoner processing, resulting in unreasonable lengths of detention for those arrested during demonstrations.
Most recently, a breakdown in the Criminal Justice Information System (CJIS) caused delays in the release of those arrested on September 27, 2002, and some prisoners who chose citation release as a release option were detained for up to 36 hours. The Committee reviewed the after-action reports of MPD's IT staff following the September 2002 protests. There was no consensus on the exact cause of the problem, but based on the after-action reports, it seems to have been narrowed down to a routine test of the CJIS system conducted that night, a damaged wireless antenna, or an overload caused by the media feed in the Joint Operations Command Center. Obviously, routine technology tests should not be conducted at a time when there is the potential for mass arrests. In any event, the exact cause of the problems needs to be diagnosed and addressed so unreasonable delays are not repeated in the future.
Beyond technology problems, individuals arrested for misdemeanor offenses, the vast majority of whom will opt to post and forfeit or choose citation release, should never be detained for more than a few hours.
The Committee received testimony from multiple public witnesses and numerous other complaints alleging that MPD offered either an incomplete range of release options or inconsistent fines for those arrestees opting to post and forfeit. During the processing of prisoners in September 2002, according to testimony, arrestees were either presented with no choice but to post and forfeit, or urged by MPD officers to choose the post and forfeit option as a matter of convenience. Arrestees were also apparently told to pay inconsistent fine amounts.
MPD's revised mass demonstrations SOP released in May 2003 has detailed instructions on prisoner processing, including instructions tailored to each release option. In the future, this policy should be closely followed. In addition, clear, written guidance should be given to both MPD officers and civilian staff running the prisoner processing sites, as well as to those arrested. This guidance also should be clearly posted in prisoner processing sites where prisoners can see the information.
MPD's mass demonstrations SOP also has detailed instructions regarding prisoner property, presumably based on District of Columbia law and regulation. It requires a system in which a prisoner's property essentially follows the prisoner and is tracked through the use of field arrest forms. Unfortunately, this policy was not followed in September 2002 and many pieces of prisoners' property at the end of the detail were either missing or destroyed. Again, in the future, MPD policy and District law in this area should be closely followed.
In November 2003, the Citizen Complaint Review Board released a "Report and Recommendations regarding Disorderly Conduct Arrests Made by Metropolitan Police Department Officers." Among the reports findings was that the post and forfeit process, through which an arrestee pays a fine and forfeits his or her opportunity to appear in court to answer the charge, "is not specifically authorized by statute, regulation, or court rule," and that:
The consequences of collateral forfeiture are not clear…the Department does not appear to have [a general order] that sets out the procedures for processing a collateral forfeiture. Other than a receipt for payment of the collateral, the station staff does not complete any paperwork, require any acknowledgement by the arrestee of the choice to post and forfeit collateral, or give the arrestee any paperwork that explains the collateral forfeiture process or any related information.30
Implementation of CCRB's recommendation that MPD clarify its post and forfeit process would provide more explanatory information to arrestees about their rights, and greater accountability for MPD in terms of tracking the large amount of cash that is collected as a result of post and forfeiture during mass demonstration situations.
In September 2002, arrestees were held in the prisoner processing center with their strong wrist tied to the opposite ankle in such a way that they were not able to stand up or stretch out. The length of time individuals were retained exacerbated the discomfort of arrestees. Retired Lieutenant Colonel Joseph Mayer, who was 69 years old at the time of his arrest, was held in this manner from approximately 3 a.m. Friday night until 1 p.m. Saturday.
MPD's investigation into the Pershing Park arrests found that this method of handcuffing prisoners was justified because officials at the prisoner processing center needed a way to maintain control over hundreds of demonstrators whom they believe had the potential to start to protest or become unruly. MPD further found that the handcuffing technique was not a violation of general order 502.1 (Transportation of Prisoners), because arrestees' arms and legs were not tied together in such a way that they could not sit up or move. General order 502.1 states, in part:
Members shall not attach handcuffs to leg restraints in such a fashion that forces the legs and hands to be close to one another (i.e. hog-tying), or place a person in a prone position, lying face down.
The Committee, nonetheless, finds this method of restraint to be insupportable and particularly so in circumstances when nonviolent, misdemeanant arrestees are held for unreasonable lengths of time. Former Interim Corporation Counsel Arabella Teal defended the use of restraints on prisoners binding wrist to ankle following the September 27, 2002, arrests based on the large number of persons arrested and the shortage of officers to stand guard at the detention center to assure their safety. While a justification from the police department's perspective, use of uncomfortable restraints against nonviolent demonstrators is not a substitute for effective law enforcement planning and sufficient manpower to provide reasonable supervision of arrestees.
MPD should evaluate its technological capacity for handling a large volume of prisoners, include information technology staff in planning prior to events with a potential for mass arrests, and periodically conduct exercises to test this capacity.
MPD should release people charged with offenses for which citation and immediate release are appropriate within a reasonable period of time. If people are held beyond four hours, MPD should document the reasons for the delay.
MPD should provide arrestees with written descriptions of release options that include a complete range of options provided by District of Columbia law and regulation, arrestees' rights under the law, and accurate information about fine amounts.
MPD should follow its policy and District of Columbia law regarding the collection, maintenance and distribution of prisoner property.
The Committee endorses the CCRB's recommendation that MPD modify its arrest procedure to ensure that all citizens who pay to resolve their arrest are provided with written notice about the collateral forfeiture process and its consequences and that they sign an acknowledgment of their choice to pay the collateral.
MPD use of physical restraints against individuals arrested during mass demonstrations should be limited to what is reasonably necessary to secure and control them.
Role of the Office of Corporation Counsel
Given the litigation against the city that has followed mass demonstrations in recent years, it is critical that an attorney familiar with MPD mass arrest protocols and related legal and constitutional thresholds be on the ground with MPD commanders during demonstrations. When practical, attorneys should participate in decisions about mass arrests. According to Robert Klotz, it was MPD practice during the late 1970s and early 1980s to have attorneys present during mass demonstrations. MPD's 2003 mass demonstration SOP states that the MPD General Counsel "shall provide field assistance to the Chief of Police and other field commanders, and perform liaison functions with the courts, the Office of the U.S. Attorney, the Office of the Corporation Counsel, bar associations, and other legal organizations as applicable."
The Committee received public hearing testimony on this point from D.C. Corporation Counsel Robert Spagnoletti. Mr. Spagnoletti testified that, in the future:
Recommendation: The MPD General Counsel and an attorney from the Office of Corporation Counsel should be on the scene of mass demonstrations that have the potential for mass arrests.
During mass demonstrations in recent years, a number of journalists, including journalists with MPD press credentials, have been swept up and arrested during mass arrests. According to a September 30, 2002 Reporters Committee for Freedom of the Press article, 17 journalists were arrested during the September 2002 mass arrests. The article noted:
Two washingtonpost.com reporters and a United Press International intern were arrested, detained and released without charges in a matter of hours. Student journalists and independent media were detained anywhere from 10 to 27 hours, slapped with a $50 'post and forfeit' fee for early release and returned to their respective newsrooms with a criminal charge of failing to obey the police.
In the same article, washingtonpost.com reporter Michael Bruno commented "The more well known your press outlet, the more secure you'll be…I feel sorry for reporters who don't have that benefit and who are essentially doing the same job." The inference of the article is that mainstream reporters may have been released through MPD's detention log process, through which any official evidence of their arrest is eliminated by MPD on the same day as the arrest.
During the course of its investigation, the Committee received complaints alleging such disparate treatment between mainstream media and independent media. The Committee deposed Sergeant Joe Gentile, MPD's Public Information Officer, to get information on MPD's media credentialing policy. Sgt. Gentile explained that journalists can apply for and receive MPD media credentials as long as they can prove that they are from a "bonafide" press outlet. MPD verifies this by contacting the supervisors of the applicants. Sgt. Gentile testified that MPD has often granted media credentials to student and independent journalists. He also testified that MPD typically does recognize press passes from other police departments and jurisdictions, and that the policy during demonstrations is to treat all bonafide passes the same way.
According to Sgt. Gentile's testimony, a bonafide press pass allows journalists to cross a police line when the commanding official on the scene says it is safe to do so. When asked about specific instances of journalists being arrested during demonstrations in recent years, Sgt. Gentile testified that he could only assume that those journalists had broken the law. When asked why some journalists in September 2002 were released through the detention log while others were not, Sgt. Gentile said he could not explain how that happened.
Although MPD's policy may be to treat equally all members of the media with bonafide media credentials, this policy has not been implemented equitably in recent years. For example, the names of Michael Bruno and the UPI intern referenced above are not included in arrest records from September 27, 2002, while the names of some student and Independent Media Center journalists are. Two groups of student journalists filed civil suits31 against the District based on their arrests that day.
One of the reporters arrested that day at Vermont Avenue and K Street was Larry Towell, an internationally renowned Magnum photographer. According to Mr. Towell, despite having three cameras around his neck and press credentials from Magnum, the New York City Police Department, and the Israeli government, and despite repeatedly telling police officers that he was a journalist, he was arrested and detained for six hours.
Finally, the Committee has received troubling testimony that suggests MPD officers may be making judgments on the ground about who among journalists are "legitimate." For example, the following is an excerpt from the deposition testimony of Sgt. Keith DeVille, who supervises MPD's civil disturbance training unit:
Q: There are a lot of people that are not members of the legitimate press. It's called the Independent Media Center, they'll give anybody a paper thing that says 'I'm a photographer, I'm a reporter.' When in fact that they're a protester. They protest, they yell at the police, they do everything else, and then when it comes time to be arrested they say no, I'm the media.
A: Well how do you know who is and who isn't?…
Q: They carry media credentials. And not issued by the Independent Media Center, not issued by the University of Maryland frat house or something that they're reporting for. We recognize legitimate media personnel that are their doing their job and not participating in the demonstration…
A: Let's say I claim I'm a member of the media, OK, and I have a police press pass. Would that do it for me?
Q: You would not…you should be allowed to leave, if you choose to leave.
Contrary to Sgt. DeVille's statement, MPD does issue media credentials to journalists from the Independent Media Center and from universities. According to MPD's media policy as articulated by Sgt. Gentile, the judgment that should be made on the ground during demonstrations should be based on two clear factors: 1) whether the journalist has bonafide credentials, in which case those credentials are given deference and 2) whether the individual has broken the law, in which case police action can be taken irrespective of credentials.
The policy as articulated by Sgt. Gentile is not in MPD's SOP on handling mass demonstrations. In fact, the only relevant policy in the SOP is a section that describes the Office of Public Information's responsibilities during a mass demonstration. The same section has new language added to the SOP in May 2003 requiring MPD members to report "media misconduct" to the Office of Public Information, but it does define what constitutes such misconduct.
MPD should issue a clear, written policy on the treatment of media during mass demonstrations and this policy should be incorporated into the SOPs and training curriculum on mass demonstrations.
Consistent with that policy, police officers should honor press credentials and not make ad hoc judgments as to press legitimacy. As is the case with other persons, credentialed reporters should not be arrested unless they are specifically observed breaking the law.
V. Conclusion: The Need For Statutory Guidelines
As noted earlier in this report, the May Day litigation ended based on the belief by the U.S. Court of Appeals that new leadership of the Metropolitan Police Department would address the serious issues raised by litigants and sustained in the U.S. District Court ruling. Judge Levanthal noted that the department "has been advancing its low-key approach" and that there were "reasonable expectations" that the department would address the issues raised, particularly concerning mass arrests. And for at least a period of time the Court's decision not to rehear the case was justified. That justification ended with the events and police actions of April 2000 and in actions taken by the MPD during major demonstrations over the last several years.
The Committee recommends legislation containing guidelines for Metropolitan Police Department practice in two areas: conducting surveillance and infiltration of political organizations and handling problematic mass demonstrations (using the ACLU definition of problematic, i.e. where civil disobedience is expected). It is the intent of the Committee to introduce legislation this spring to reflect these recommendations. The legislation will likely take the form of regulations that, once in place, can be amended by the Executive branch with approval of the Council.
Guidelines on Intelligence
As the Gilmore Commission noted in its final report in December 2003, definitions are changing for what constitutes legitimate law enforcement activity, including what purpose may be served by surveillance of political organizations. In the aftermath of the terrorist attacks of September 11, 2001, there is a strong and legitimate public interest in careful scrutiny of any and all intelligence that might prevent terror, whether that terror takes the form of violent attack based on ideology or gang-related violence that occurs in the streets of American cities. The elected legislature has a responsibility to draw the line between what is legitimate law enforcement purpose and what violates the civil rights and civil liberties of District residents.
Legitimate law enforcement purpose includes acting to prevent crime and pursuing information that can assist in preventing crime. It is the latter that gives rise to intelligence directed at individuals and organizations based on what, in other contexts, is protected First Amendment activity. The Committee has reviewed policies recently adopted in Chicago, New York City, and the State of California governing intelligence operations. These documents offer useful models and the Committee has included some aspects of these law enforcement policies in recommendations that follow. For these purposes surveillance is defined as the systematic, on-going undercover monitoring of a group's activities and includes police attendance at public meetings or social activities.
The Metropolitan Police Department should conduct intelligence solely for a legitimate law enforcement purpose.
Before police undertake surveillance of any group engaging in constitutionally protected expression or freedom of association, there should be reasonable suspicion to believe that the group is engaging in, planning to engage in, or about to engage in criminal activity.
Surveillance in this context should be expressly approved by the Assistant Chief for Special Services, be time-limited in duration, and be conducted in a manner that is not more extensive or intrusive than is justified by its purpose.
Police should immediately cease such surveillance once facts made known to them no longer support reasonable suspicion.
Officers engaged in surveillance should report regularly to the Assistant Chief for Special Services.
Guidelines for Mass Demonstrations
The Committee recommends guidelines for the Metropolitan Police Department in handling mass demonstrations to include the following. "Current MPD policy" refers to written policies contained in MPD's Standard Operating Procedures for Mass Demonstrations, Response to Civil Disturbances and Prisoner Processing. As noted earlier in this report, the policies contained in the manual are generally sound but have been violated by the Department in recent years.
Prior to each mass demonstration, the police chief should issue a directive saying that MPD's overall mission during mass demonstrations is to protect demonstrators' First Amendment right to assemble and protest, and that in the event that individuals engage in unlawful behavior, those individuals shall be arrested without abridging the rights of others lawfully assembled.
Consistent with current MPD policy, MPD should not disperse nonviolent demonstrators in the absence of unlawful activity.
Consistent with current MPD policy, MPD should not arrest nonviolent demonstrators for failure to disburse or failure to obey an order without first giving multiple and clearly audible warnings and an opportunity for demonstrators to comply with police orders.
MPD should not arrest nonviolent demonstrators solely for failure to have a parade permit unless 1) there is another permitted demonstration planned for the same location 2) the demonstrators are blocking buildings or traffic 3) the demonstrators are acting disorderly.
MPD should not use police lines to surround and detain nonviolent demonstrators.
Consistent with current MPD policy, when conducting arrests during a mass demonstration, MPD should, through the use of field arrest forms and commander event logs, contemporaneously record facts necessary to establish probable cause for the arrests.
Individuals arrested during mass demonstrations should receive copies of their field arrest forms.
Consistent with current policy, when conducting mass arrests, when practical, MPD should film police actions in their entirety, including giving warnings and dispersing or arresting demonstrators, in accordance with existing regulations governing the use of Closed Circuit Television cameras.
MPD should not conduct a mass arrest based on the unlawful conduct of a few demonstrators. When arrests are necessary, MPD should only arrest those demonstrators responsible for the unlawful conduct.
MPD should follow its current use of force policy that: 1) the use of force, including riot batons, OC spray and chemical agents be used according to strict standards 2) the use of force should only be used as authorized by the highest ranking official on the scene, or, in the case of chemical agents only as authorized by the chief of police 3) the use of force should be documented and such documentation should be made available to the public consistent with the reporting requirements of MPD's Memorandum of Agreement with the Department of Justice.
MPD should follow its current policy of only using riot gear at the authorization of the highest ranking official on the scene and only when there is reason to anticipate violence.
During mass demonstrations, all uniformed officers should be plainly identified by their badge numbers, which should be displayed in large numbers emblazoned on their jackets so as to be clearly visible to the public.
Uniformed officers should never remove their badges or any other identifying emblem, and supervisors should never authorize such removal, or be subject to disciplinary action.
Consistent with current MPD policy, plain-clothes officers should be required to identify themselves before taking any police action.
MPD should notify the Office of Citizen Complaint Review (OCCR) in advance of demonstrations in which mass arrests may be reasonably anticipated. OCCR should monitor each such demonstration, and should then issue a public assessment of police performance, identifying any police misconduct.
Appendix A: Summary of Public Hearings
The Committee on the Judiciary held a 2-day public oversight hearing on the Judiciary Committee Investigation on current policies and practices of the Metropolitan Police Department related to demonstrations with the District on December 17– 18, 2003. Copies of the public testimony are included in Attachment xx. A summary of the hearing follows.
In opening the two days of hearings in December, Councilmember Patterson recounted the events of April 2000 and read from a letter to Mayor Williams and the then-chair of the financial control board written by constituents, both attorneys. Ross Eisenbrey and Barbara Somson wrote, they said, "to express our deep dismay over the manner in which the Washington Metropolitan Police Department handled the anti-IMF protest over the weekend of April 15. We request a thorough investigation into the actions of the MPD, which, as reported by the news media, appear to be unconstitutional and illegal."
The letter noted the apparently preemptive closing of the demonstrator's convergence center "allegedly because of fire violations." Noting their experience, as parents, with fire code violations in public schools, the writers said "we cannot recall a single instance when a building was closed because of initial findings of fire code violations. We believe the actions of the MPD were nothing more than a pretext and plainly illegal." They also requested an investigation of hundreds of arrests that, according to press accounts also appeared preemptive "to prevent them from protesting at the opening of the IMF/World Bank meetings on Sunday, April 16."
Finally, they wrote,
In her opening statement at the hearing, Councilmember Patterson also recounted testimony given to the Judiciary Committee on October 24, 2002. At that time the ACLU presented three witnesses who recounted their experiences during anti-war and anti-globalization demonstrations on September 27, 2002. All were arrested and detained for 24 hours or more. A young woman attorney, a computer programmer, and a retired Army lieutenant colonel shared their experiences with this committee (and subsequently became plaintiffs in one of the class action lawsuits against the District.).
Patterson noted that Joseph L. Mayer, the retired Army officer, said: "On Friday, September 27, in Washington D.C., my sense of my own place in society was stunned when I was arrested for the first time at the age of 69. This experience shook my confidence that our Constitution and my adherence to that rule of law, made me safe and secure on the streets of our capitol." The three witnesses were among the 400 or so individuals wrongfully arrested in Pershing Park that Friday morning in September.
We have seen police abuses in the past, here, and across the country. It is the job of elected policymakers, through oversight of the police department, to question, and, as necessary, to legislate parameters to make sure our department is protecting, and not jeopardizing, Constitutional rights.
Arthur Spitzer, Legal Director, American Civil Liberties Union of the National Capital Area ("ACLU-NCA")
Mr. Spitzer, on behalf of the ACLU-NCA, commended the Judiciary Committee for holding public hearings about the policies and practices of MPD relating to demonstrations. "[W]e believe this investigation will show the need for the Council to provide more detailed and effective guidance to the police with regard to their handling of demonstration activities," said Mr. Spitzer. He noted that while MPD is effective in handling routine demonstrations, the department has over-reacted when faced with demonstrations in which some sponsors announced the occurrence of civil disobedience. "We are not suggesting that there is any legal right to engage in civil disobedience…but non-violent civil disobedience does not justify police violence, and it certainly does not justify the arrest of hundreds of people who have not violated any law…". In addition, Mr. Spitzer presented to the Committee a ACLU-NCA report entitled, "The Policing of Demonstrations in the Nation's Capital: A Misconception of Mission and a Failure of Leadership." The report contained 20 recommendations for Council action regarding policies and practices related to demonstrations.
Mara Verheyden-Hilliard, Partnership for Civil Justice and National Lawyers Guild Mass Defense Committee ("PCJ")
Ms. Verheyden-Hilliard, on behalf of PCJ, testified that the litigation by the PCJ has revealed, in their opinion, the systematic police abuse of demonstrators. She also testified that, in the organization's opinion, MPD is engaged in an ongoing illegal domestic spying operation on political activists. Finally, Ms. Verheyden-Hilliard noted that PCJ has four pending First Amendment cases on behalf of demonstrators in Washington against the District government. A chart detailing the pending lawsuits as of December 15, 2003 is included as Appendix C.
Mark Goldstone, Chairman of the Demonstration Support Committee of the D.C. Chapter of the National Lawyer's Guild- DC Chapter
Mr. Goldstone, on behalf of Demonstration Support Committee of the D.C. Chapter of the National Lawyer's Guild- DC Chapter, testified that Chief Ramsey has implemented a plan – "The Ramsey Plan" – to thwart individuals demonstrating in the District. According Mr. Goldstone, the Ramsey Plan included scaring the media and the residents of the District with the potential for protestor violence and conducting mass arrests of protestors, sometimes preemptively, in order to disrupt the protestors plans. "…the Ramsey Plan has a chilling effect on people's interest and motivation in speaking out against the government, of attending protests and rallies, and of even visiting downtown during demonstrations," said Mr. Goldstone.
Kristinn Taylor, Co-Leader, DC Chapter of FreeRepublic.com
Ms. Taylor testified on behalf of DC Chapter of FreeRepublic.com, an independent, grassroots conservative group that was established in September 1998. She testified that members of the FreeRepublic.com has held over 200 protests and demonstrations in the District and never had the alleged behavior of the MPD against the leftist groups directed at them. Ms. Taylor also testified that she has a hard time disagreeing with the department's decision to arrest the 400 people in Pershing Park on September 27, 2002.
Beth Caherty, DC Chapter of FreeRepublic.com
Ms. Caherty testified that she believes in freedom of speech and expression for everyone, but did not believe that freedom of expression included the right to damage and destroy public or private property, riot, threats and intimidation. She noted that in more than three years of participation in peaceful demonstrations on the streets of DC, she never witnessed or been involved in an incident where any law enforcement agency has used excessive force or violated a person's civil rights.
Mr. Eidinger testified that the Council should take action to ensure that the rights of political demonstrators are not violated by MPD. He noted that MPD, as well as other law enforcement agencies, needs to end the routine infiltration, disruption, mass arrests and intimidation of local political activists. He recommended that the city leaders and MPD agree on new rules for how demonstrations are served.
"For the record I was arrested on September 27, 2002 in Pershing Park while attempting to express my opposition to war on Iraq…The arrests were terrifying and a despicable violation of basics constitutional rights. Police forcibly removed us from the park even though we posed no threat to anyone and were never ordered to leave…I was in jail for about 26 hours, during that time I began to question, and to his day question, if this country is really free," said Mr. Eidinger.
Mr. Bell, a journalist with Washington DC Independent Media Center, as well as a freelance videographer, testified that MPD targeted and indiscriminately arrested journalists, including himself, on September 27, 2002. He also brought videotape that he believes illustrated this action.
John Brodkin, Americans for Deomcratic Action, Greater Washington Chapter
Mr. Brodkin testified on behalf of Americans for Democratic Action, Greater Washington Chapter, the nation's oldest independent liberal political organization. He said that Americans for Democratic Action commends the Judiciary Committee's decision to investigate MPD practices during political demonstrations. He noted that current policies of preventive arrests, massive police presence, and announcements hyping possible violence at demonstrations infringe on the fundamental rights of District residents and that Pershing Park arrests are a prime example of this type of action.
Dr. Lucy G. Barber, Author, Marching on Washington: the Forging of an American Tradition
Dr. Barber, a historian, was invited by the Judiciary Committee to provide a historical context of political protests in Washington, D.C. and how the police department handled the demonstrations. Dr. Barber described how MPD's officers and their advisors responded to three different national protests in Washington between 1874 and 1971. She started with first "march on Washington" in 1894 by a group called Coxey's Army where the police practiced a "line in the sand" strategy. The next march described was Bonus Army in 1932. In this protect, District's officers used a policy called "forceful courtesy" towards the demonstrators. The final demonstration that Dr. Barber described was Mayday Protests of 1971. It was these protests where protestors threatened to "shut down" Washington and where MPD responded by preemptively disrupting protest events and by using mass arrests, resulting in over 12,000 arrests over a three-day period.
Robert Klotz, former Commander, Special Operations Division, Metropolitan Police Department
Mr. Klotz was invited by the Judiciary Committee to testify because he served as SOD commander in the late 1970s and early 1980s. He stated that the police must respect the rights of the demonstrators as well the rights of the people in the city. He also said that if the public could not tell whether police officer were supportive or not of the demonstrators that means the police have managed the event well.
Note: More information on the Klotz and Temple testimony is included in the Departing From Best Practices section.
Ralph Temple, former Legal Director, ACLU-NCA
Mr. Temple was invited by the Judiciary Committee to testify because he participated in the extensive litigation that followed the May Day 1971 arrests.
He praised the leadership of Mr. Klotz when he lead the department's work on demonstrations and said, "except for Bob Klotz's reign, it's never been done right by the Metropolitan Police Department." In commenting on the trade meetings and protests in Seattle, Temple said there were large peaceful demonstrations that did not get any press attention. On the political side, he said, "There were much greater political benefits to the nation and to the world from the Seattle demonstrations than the downsides. It changed the whole world consciousness of trade issues, and it changed the political agenda for the world trade organizations." He presented the policy proposals of the American Civil Liberties Union, including a recommendation that police officials be disciplined for misrepresenting facts on police actions. "I'd go farther than the ACLU," he said. "I'd make it a prosecutable felony for a law enforcement official to publicly lie about a law enforcement action."
James Short, Deputy Fire Chief, Department of Fire and Emergency Medical Services ("FEMS")
Deputy Fire Chief Short provided testimony to clarify the role of FEMS in inspecting 1324 Florida Avenue, NW, known as the convergence center. Deputy Fire Chief Short noted that at the time, he was assigned as the Battalion Fire Chief at the Fire Prevention Bureau, which had responsibility in the enforcement of the Fire Prevention Code. In addition, he was tasked with supervising filed operations of the Mayor's Nuisance Abatement Task Force.
Deputy Fire Chief Short testified that he first became aware of the convergence center when he viewed a local new broadcast that depicted activities that were unusual for that location. He said that he was contacted by MPD after the airing of the broadcast. After some research that revealed no permits for the premises, he conducted on April 15, 2000 a fire inspection of the property that revealed numerous fire code violations, including the use of propane gas and overcrowding. Deputy Fire Chief Short said that the occupants of the building were given approximately two hours to abate the fire code violations and when they failed to do so, the building was closed as authorized by the Fire Prevention Code.
Alfred J. Broadbent, Sr., Assistant Chief, Special Services Command, Metropolitan Police Department
Assistant Chief Broadbent, who is responsible for the management of the Special Services Command and coordinating and preparing the department for major events and demonstrations that occur in Washington, provided testimony on MPD's philosophy regarding demonstrations within Washington. He said that MPD's underlying philosophical principle related to managing and responding to demonstrations is to ensure that demonstrators have full opportunity to voice their First Amendment right, without fear. He noted that department's purposed dedication to managing safe large scale demonstrations met a new challenge after the events in Seattle, WA in November 1999.
During those demonstrations surrounding the WTO, there was widespread looting, uncontrolled civil disobedience and over $3 million in property damage and destruction to downtown Seattle. Because of the unrest in Seattle, Assistant Chief Broadbent said that MPD was uncertain what to expect at the protests in April 2000 at the IMF/WB Conference. Therefore the department prepared for the worst possible scenario because it had received intelligence that the demonstration organizers wanted a repeat of Seattle in Washington, DC. Assistant Chief Broadbent noted because of the policies and procedures utilized by MPD, April 2000 demonstration proceeded in an orderly fashion and there was no destruction of property like in Seattle. In his final comments, Assistant Chief Broadbent said that he has traveled around the world as a consultant to share "best practices" with the respective law enforcement authorities and assist them in preparing for large-scale events.
Peter Newsham, Assistant Chief, Office of Professional Responsibility, Metropolitan Police Department
Assistant Chief Newsham, who is responsible for the Office of Professional Responsibility that encompasses the Office of Internal Affairs, the Civil Rights and Force Investigation Team, the department's Disciplinary Review Office, the Compliance Monitoring Team, and the department's Diversity Compliance and Equal Employment Opportunity Office, testified about his decision to arrest protesters in Pershing Park on September 27, 2002. He said that he was responsible for the geographical zone that included Pershing Park and the park was significant in terms of management of any large demonstration because of its proximity to the White House and to the 14th Street Bridge. He noted that since the attacks of September 11th, security has been heightened in the immediate area of the White House, and MPD must be concerned with ensuring that the security of the White House is not threatened or compromised in any way.
Assistant Chief Newsham said that he was aware that no parade permits had been issued for September 27, 2002 and therefore any street demonstrations would be, per se, unlawful. He also was aware that that some of the demonstrators in his zone who were unlawfully marking through the streets were knocking over trash containers and newspaper vending machines, and that at least one store window had been smashed by the demonstrators. He said that when he arrived at Pershing Park, he observed demonstrators converging on the park from every direction and disregarding traffic laws. Assistant Chief Newsham said that after observing the demonstrators for 45 minutes, he concluded that they had not intention of concluding their demonstration and dispersing, but would continue their unlawful demonstrations in the streets. He said that it was his determination, in the interest public safety, he should not allow this to occur.
Assistant Chief Newsham said that at some point he conferred with Chief Ramsey and Executive Assistant Chief Fitzgerald at Pershing Park. He said that he informed them that the demonstrators had already violated several laws and that he believed that there was probable cause to arrest the demonstrator. He also told Chief Ramsey and EAC Fitzgerald that the demonstrators should be arrested before they left the park so as to prevent further unlawful acts and potential violence. Assistant Chief Newsham said that he did not give orders for the demonstrators to clear the park for two reasons. First, he believed that probable cause already existed to arrest the demonstrators because of their unlawful actions prior to converging on Pershing Park. Second, he was concerned that if orders were given to clear the park, the demonstrators would leave the park as on organized group, and unlawfully take to the streets as they had previously done.
"Under the circumstances that occurred on September 27, 2002 in Pershing Park, I believed that his actions were lawful, reasonable, appropriate and that course of action that I took was necessary to minimize the likelihood of violence," said Assistant Chief Newsham.
Matthew Klein, Captain, Director of the Civil Rights and Force Investigation Division, Metropolitan Police Department
Chairperson Patterson asked Captain Klein questions about his role in the MPD investigation of the mass arrests at Pershing Park. Please see Pershing Park Investigation section.
Joshua Ederheimer, Captain, Deputy Director of the Institute of Police Sciences, Metropolitan Police Department
Chairperson Patterson asked Captain Ederheimer questions about his role in the MPD of the mass arrests at Pershing Park. Please see Pershing Park Investigation section.
Margret Nedelkoff Kellems, Deputy Mayor for Public Safety and Justice
"It is not the policy of this [Williams] Administration to stifle the free speech or assembly rights of demonstrators. It is not the policy of this Administration to preemptively arrest protestors because we think they might say something wrong. It is the policy of this Administration to protect (1) the rights of individuals to speak their piece, (2) the rights of individuals to be safe in their persons and in their property, and (3) the rights of organizations to gather and meet to discuss programs and policies that my be abhorrent to others," testified Deputy Mayor Kellems. She noted, contrary to some assertions, that there has not been fundamental change in MPD policies and practices regarding large-scale demonstrations. She said that MPD operations and practices are driven by information, intelligence, and experience.
Charles H. Ramsey, Chief of Police, Metropolitan Police Department
Chief Ramsey testified that he was extremely proud in the way the department has handled demonstrations. "[W]hen it comes to managing demonstrations and supporting the First Amendment rights of large number of people, espousing the whole spectrum of ideas and causes, the Metropolitan Police Department is among the very best – and we continue to get better," he said. He noted that in addition to upholding the rights of demonstrators, MPD has the equally important responsibility of protecting the lives and property of residents, business owners and others who are not associated with the protests. He also noted that demonstrations have changed since Seattle 1999.
Regarding the arrests of Perking Park in September 2002, Chief Ramsey testified that he directed MPD's Office of Professional Responsibility to conduct a thorough review of the incident and the actions of department and produce a report on its findings. The report identified management and operational deficiencies that occurred during the Pershing Park incident. "The report also suggested three important changes related to our mass demonstrations procedures. In accepting these three areas for improvement, I also directed that 10 additional actions be taken in order to more fully address the deficiencies identified during our internal investigation," he said.
Thea Lee, Chief International Economist, AFL-CIO
Ms. Lee testified about the planning involved in the march and rally on "global justices issues" that occurred on November 20, 2003 in Miami Florida. She noted that AFL-CIO worked for months with the Miami officials over arrangements for the permitted march and rally, and that those arrangements were clearly ignored by the Miami police. She noted the importance of discipline among police officers, and said when police leaders permit a situation to escalate, "that trains activists to hate the police." On the issue of accountability, she said if there is evidence of police brutality, as she indicated there was in Miami, "there have to be consequences." More information on Lee's testimony is included in the National Context section.
Timothy Lynch, Director, Project on Criminal Justice, The Cato Institute
Mr. Lynch expressed his concerns about the recent blurring of distinctions between military and police missions, a phenomenon he said began with the "drug war." This has included a greater level of training by law enforcement agencies as military units. He said the number of "SWAT" teams within police departments has skyrocketed, even in small town departments. The danger in blurring the military and the police mission is that the military represents the use of force, while the police mission is to assure public safety with the least amount of force possible. He said the Committee's hearings were appropriate, and stressed the importance of police agencies avoiding "the military mindset." He described "good police work" as "making distinctions," including distinguishing between law-breaking vandals and demonstrators who may be unpleasant but not violating the law.
Frederick D. Cooke, Jr., Esq., former Corporation Counsel of the District of Columbia
Asked whether the Council should enact legislative guidelines for the Metropolitan Police Department, Mr. Cooke said yes, and said there has been too little interaction recently between the Office of the Corporation Counsel and MPD. In earlier years, including his tenure as Corporation Counsel, there was greater interaction between both the OCC and the U.S. Attorney and the police department. In discussing the issue of training and attitude with other panelists, Mr. Cooke said it is critical that police "not give in to fear" noting that a judgment that there is danger present "doesn't mean everyone is dangerous."
Robert Weiner, Esq., former President, District of Columbia Bar Association and Senior Counsel to the White House Counsel
Mr. Weiner noted that some protesters may expressly seek a reaction from police in order to call attention to themselves and their casues, something police need to be careful to avoid. He emphasized the need for good training, including a grounding in constitutional law, and the need for adequate resources, including support from the federal government as needed. He said there is a legitimate purpose for undercover police work, including when there is reason to expect criminal behavior, and emphasized using the "least intrusive means" for a limited amount of time in undercover work to gather information.
Robert Spagnoletti, Corporation Counsel, Office of Corporation Counsel ("OCC")
Mr. Spagnoletti explained the role OCC has played in the District's response to planned mass demonstrations. He said that when the District anticipates large-scale demonstrations, OCC works closely with District and federal agencies during the preparation phase, the operational phase, and the post-demonstration phase. He noted that there are where OCC could be more proactive in providing advice and guidance to embers of law enforcement and work to better control the District's potential liabilities.
James Jacobs, Director, Office of Risk Management
"Given that decision making is at the center of the risk exposures associated with demonstrations, the most effective risk control strategies center on established and acceptable police and related training, supplemented by adequate supervision and continuous operational improvement," Mr. Jacobs said. He noted that MPD has a mass arrest manual as well as an event-specific manual to guide MPD activities.
Appendix B: Case Law Memoranda
COUNCIL OF THE DISTRICT OF COLUMBIA
|Complaint/Suit||Case # and Presiding Judge||Plaintiffs Attorneys||Event||Date Filed||Issues|
|Alliance for Global Justict, et al v. D.C., et al (includes fed gov't)||01-CV-811 Judge Paul Friedman||American Civil Liberties Union, National Capital Area (until 6/02) Partnership for Civil Justice||IMF/World Bank protests April 2000||4/13/01||
|Bolger, et al v. D.C., et al (includes two unknown federal officers)||03-CV-906 Judge John Bates||Partnership for Civil Justice||Anti-war protests April 2000||4/21/03||
|International Action Center, et al v. USA, et al (includes DC, Ramsey and MPD officers||01-CV-72 Judge Gladys kessler||Partnership for Civil Justice||Presidential Inaugural January 2001||1/16/01||
|Barham, et al v. Ramsey, et al (includes federal defendants)||02-CV-2283 Judge Emmet Sullivan||Partnership for Civil Justice||IMF/World Bank protests Pershing Park September||11/19/02||
|Abate, et al v. Ramsey, et al||03-CV-767 Judge Emmet Sullivan||American Civil Liberties Union, National Capital Area||IMF/World Bank Pershing Park September 2002||3/27/2003||
|Jones, et al v. D.C., et al||02-CV-2310 Judge Emmet Sullivan||Mooers & Associates||IMF/World Bank Protests Freedom Plaza September 2002||11/22/02||
|Chang, et al v. U.S., et al (includes D.C.)||02-CV-2010 Judge Emmet Sullivan||Bryan Cave LLP and GWU National Law Center||IMF/World Bank Protests Pershing Park September 2002||10/15/02||
|International Action Center, et al v. USA, et al Appeal from U.S. District Court to the US Court of Appeals for the DC||03-5133||Partnership for Civil Justice||Presidential Inauguration January 2001||5/12/03||This is an appeal filed by Chief Ramsey of Judge Kessler's 8/30/02 discovery order|
|International Action Center, et al v. USA, et al Appeal from U.S. District Court to the US Court of Appeals for the DC Circuit||03-5163||Partnership for Civil Justice||Presidential Inauguration January 2001||6/26/03||This is an appeal filed by defendants.|
1. A copy of this general order was provided to the Committee by Robert Klotz, former Deputy Chief of Police, Commander, Special Operations and Traffic Division.2. 400 F.Supp 186, 218-219
3. Civil disturbance unit
4. 566 F .2d 107
5. p. 224, Lucy Barber, Marching on Washington: the Forging of an American Political Tradition, 2002
6. "Files on Politicians Kept, Police Admit," The Washington Post, February 13, 1975
8. "Controlling Police Surveillance," The Washington Post, July 23, 1976
9. "Intelligence Work and the District Police," The Washington Post, March 14, 1975
10. Alliance for Global Justice, et al v. District of Columbia, et al
11. The Nuisance Abatement Task Force is an inter-agency task force, typically made up of representatives of multiple agencies, including MPD, DCRA, DPW and FEMS, that conducts simultaneous housing, fire and code inspections of buildings.
12. An April 17, 2000 letter from Douglas Development Corp. to Chief Thompson stated, "Douglas Development Corp was led to believe that several non-profit groups were organizing a training workshop for puppet making, and allowed at no cost a sublease of the space for a two-week period. We are outraged at this gross misrepresentation and can assure you that, has we been aware of the true motives of this group, we would never have permitted their assembly at any of our properties."
13. According to the witnesses interviewed by the Committee, no illegal weapons were found in the convergence center.
14. During an April 17, 2000 television story by The News with Brian Williams, Chief Ramsey stated "They were making homemade pepper spray." An April 15, 2000 Associated Press story reported "officers seized a plastic container with a rag stuffed inside and what looked like a wick, said executive assistant chief Terry Gainer. He said it 'looks like a Molotov cocktail."
15. p. 23, Standard Operating Procedures for Mass Demonstrations, Response to Civil Disturbances and Prisoner Processing, May 2003
16. Narcotics and Special Investigations Division
17. A "sleeping dragon" is a device by which two or more people can lock their arms together, usually with a securing device inside steel or polyvinyl chloride (PVC) piping to inhibit the effectiveness of removal by saws.
18. In his deposition testimony that is contradicted by the operational plan outline of anticipated events, including the snake march to start at Franklin Park, Jordan said: "Friday was a real unclear day that there was specific requests for the Thursday, the Saturday, and the Sunday, but Friday there wasn't any clear information and the responsibility was just for the area commanders to be ready for their areas."
19. "A Day of Tightly Controlled Chaos," Monte Reel Washington Post, September 28, 2002
20. FOX 5, 5 p.m. News, September 27, 2002
21. "Police Arrest Hundreds
in Protests; Anti-Capitalism Events Cause Few Disruptions," Manny
Fernandez and David A. Fahrenthold, The Washington Post,
September 28, 2002
"A Day of Tightly Controlled Chaos," Monte Reel, The Washington Post, September 28, 2002
"Did Police Go Too Far?," The Washington Post, October 1, 2002
"City's Quandary: Peaceful Streets Vs. Right to Assemble," David A. Fahrenthold and Manny Fernandez, The Washington Post, October 17, 2002
22. "City's Quandary: Peaceful Streets Vs. Right to Assemble," David A. Fahrenthold and Manny Fernandez, The Washington Post, October 17, 2002
23. It appears that this general order is no longer in effect at MPD.
24. The Committee has not released from executive session the names or any identifying characteristics of the former undercover officers deposed by the Committee.
25. A "plain-clothes" or "casual-clothes" officer, according to MPD policy and practice, is a police officer who does not wear a uniform but identifies himself or herself as a police officer. MPD general order 308.13 states that "members of casual clothes units must be identified as police officers by the general public, as well as other officers…Should it become necessary for casual clothes/non-uniform members to overtly exercise their responsibilities as police officers they shall, as soon as practicable, affix the standard recognition device, the yellow or orange MPD arm band, on the sleeve of their outer garment…Casual clothes members should also have in their possession their identification card and badge." Plain clothes officers may spend some of their time in uniform and some of their time out of uniform.
26. Undercover officers assume false identities for the purpose of collecting information. Their identity as police officers is not known to the individuals they are monitoring or investigating or to a majority of MPD employees, and they are prohibited from having any contact with MPD facilities and employees, with the exception of a small number of Intelligence Unit officers. There is no MPD general order governing the conduct or operations of undercover officers.
27. The law enforcement privilege is an evidentiary privilege that does not apply to the Council of the District of Columbia, a coordinate branch of government, when it is acting pursuant to its investigative authority under section 413 of the District of Columbia Home Rule Act (D.C. Official Code § 1-204.13).
28. The use of the term "career civil disturbance unit experience" means officials who, throughout their careers, were members of CDU platoons, regularly were assigned to handle mass demonstrations, and participated in annual blocks of CDU training.
29. Dave Statter, Channel 9, WUSA News, September 27, 2002
30. p. 16, "Report and Recommendations regarding Disorderly Conduct Arrests Made by Metropolitan Police Department Officers," Citizen Complaint Review Board, 2003
31. Chang, et al v. U.S., et al and Jones, et al v. D.C., et al
32. In subsequent litigation, the parties agreed to a consent decree, known as the Handschu Guidelines. These guidelines have since been modified pursuant to a March 2003 decision – more info forthcoming.
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