Police Say New Rules Not Related to Convention; Critics Disagree
The St. Paul, Minn. Police Department has adopted new guidelines for investigating and gathering information on protest groups.
Critics have said the rules show that law enforcement officials intend to closely monitor and even infiltrate groups planning to protest the Republican National Convention (RNC) in St. Paul Sept. 1-4, 2008, but police officials have said the adoption of the policy has nothing to do with the upcoming event.
Police spokesman Tom Walsh told the Minneapolis Star Tribune for a Feb. 25, 2008 story that the document, the “Policy and Guidelines for Investigations and Information Gathering Operations Involving First Amendment Activity,” was adopted as part of a broader revision of department policies and guidelines.
“We have completely redone our manual. We do that periodically. This is not tied to the RNC,” Walsh said.
However, critics disagree.
The Associated Press (AP) reported February 25 that Bruce Nestor, an attorney for anti-war groups organizing protests at the RNC, said the timing “clearly indicates” a connection.
“I’m not surprised by the policy, but I think it represents the preparations of St. Paul police to be engaged in surveillance and infiltration of groups that engage in First Amendment activity,” Nestor said.
The Star Tribune first reported on the policy, which was adopted by Police Chief John Harrington on Jan. 16, 2008, after requesting a copy from the department. The policy is available on the Star Tribune Web site at http://stmedia.startribune.com/documents/1stpaulpolicy.pdf.
The policy states that the St. Paul Police Department “must be proactive with developing sources of information to identify threats and illegal activities” in order to prevent “the commission of unlawful activities or terrorist acts … affecting the public safety.” The policy says police will not investigate a group or individual when the investigation is “based solely on the lawful exercise of [the group’s or individual’s] constitutional rights;” rather, any investigation “shall be based on an existing criminal predicate or the reasonable suspicion that unlawful acts have occurred or may occur.”
Although the policy calls for the “least intrusive techniques” to be used in gathering information while investigating, police may initiate a full investigation, which can include the use of confidential informants or undercover officers, when “reasonable suspicion” dictates.
According to the policy, the commander of the Police Department’s Special Investigations Unit (SIU), David Korus, may authorize a full investigation after notifying Chief John Harrington or his designee. Korus is also required to seek permission for continued use of undercover investigations in writing every 120 days and to update the chief on the status of any ongoing investigation every 180 days.
According to the AP, Chuck Samuelson, executive director of the American Civil Liberties Union (ACLU) of Minnesota, said he was concerned because although the policy puts authority for investigation in the hands of Korus and Harrington, there is no requirement for outside review.
In the Star Tribune story, Alex Vitale, assistant professor at Brooklyn College who wrote a report for the New York ACLU on the 2004 RNC in New York City, expressed similar concerns about oversight.
“My big problem with [the policy] is the lack of independent oversight or accountability,” Vitale said. “Basically you have police keeping a paper trail on their own decision-making, but how does anyone else know that they are adhering to those requirements?”
The policy also has a special provision for investigating members of the media. “If SIU is going to conduct an authorized investigation into a person who happens to be of the Mainstream media (such as a reporter) investigators will consult with a prosecuting attorney for guidance regarding obtaining data, records or information that may include portions of their work product for such media outlet. The investigator and Supervisor shall be aware of the legal restrictions to such data collection as it applies to both State and Federal law.”
The Privacy Protection Act, 42 U.S.C. section 2000aa (1980), generally protects reporters from state or federal searches or seizures of their work product or documentary materials, including photos, film, video, and notes, as well as mental impressions or conclusions. Exceptions include when the reporter is the focus of the investigation, when seizure is necessary to prevent death or serious injury, or the material is in danger of being destroyed.
Jane Kirtley, director of the Silha Center and professor of media ethics and law at the University of Minnesota, told the AP that the policy may single out members of the vaguely-defined “mainstream media” for deferential treatment, but leave behind new media such as political bloggers, or even the ethnic press.
“The First Amendment applies to anybody who’s engaged in expressive activity,” Kirtley said.
The policy also forbids undercover officers from instigating or encouraging illegal activity within a group under investigation, from “sowing seeds of distrust” among the members of the group, and from assuming any formal or informal position of leadership.
According to the AP, Nestor said this aspect of the guidelines “appears to recognize some of the most outrageous abuses of the past” citing the case of New York City police who were criticized over their investigations preceding the 2004 RNC. The New York City police department was also criticized for sending officers around the United States and to Canada and Europe to monitor groups planning to protest the 2004 convention.
Walsh told the AP, “We’ve been saying from the very beginning that we are not following the New York model.”
However, the AP said Walsh did not rule out the possibility that St. Paul police might travel outside the city to conduct an investigation permitted under the policy.
According to the Star Tribune, Nestor, along with the ACLU of Minnesota expressed concerns that “unlawful activity” is too low a standard, allowing the police to launch investigations for minor violations like marching without a permit or performing peaceful civil-disobedience protests. Nestor told the Star Tribune his greatest concern is that there is no requirement that police must show any element of violence or level of seriousness about committing a crime in order to trigger an investigation.
Walsh told the AP for its February 25 story that the policy does not say that St. Paul police are infiltrating or investigating groups.
“What we have said from the beginning is people who come to St. Paul to exercise their First Amendment rights are welcome to do so. People who come here to commit illegal acts will be arrested,” Walsh said.
Denver will host the Democratic National Convention Aug. 25-28. The AP reported that the Denver Police Department’s operations manual does not currently have a policy similar to the one adopted in St. Paul. A spokesperson for the Denver police said “information is unavailable at this time” on whether a policy is in planning, and a city council member said that, as far as he knows, no such policy is in the works, according to the AP.
– Patrick File
Silha Fellow and Bulletin Editor