Police Surveillance and Your Constitutional Rights

Ever hear of The Lockyer Manual? Not to worry, almost nobody has. Not even many police departments, and it’s all about them and their interactions with public citizens during political demonstrations.

Basically the Lockyer Manual, created by former California Attorney General Bill Lockyer, sets down legal guidelines regarding police surveillance during public demonstrations, marches and the like by codifying under what explicit conditions police or sheriff’s departments can photograph and record participants without violating their state constitutional rights to privacy.

It all hinges on this: Absent an articulable criminal predicate for the gathering of information it will not be possible to justify it [surveillance] under the general heading of intelligence activity.

In other words, the criterion, the benchmark, the only reason for law enforcement doing surveillance is that there must be reasonable suspicion of a crime. By setting down this legal marker, California’s constitutional right to privacy provides greater protections than the federal Constitution. Legal precedent established by the California Supreme Court established that there must be some connection between the information gathered, e.g., photographs, and unlawful activity.

Which brings us to an editorial in The Sun on Thursday, May 24 titled, “Cops on Watch,” that’s so full of suppositional speculation it’s the kind of drivel that gives BS a bad name. I’ve been told that The Sun gang-edits by committee so there’s no way to address an individual for writing this crap, and it’s always left unsigned. Frankly I don’t believe this. What I believe is that Sun publisher Bill Hammett penned this misleading and incorrect legal assessment of citizens exercising their constitutional rights of speech, association and privacy.

Firstly, no one, not Dave Henderson, Mike Smith, any adult or student at the demonstration or I has complained about police presence during the event. The objection voiced to the City Council regarded the unlawful photography of the participants by a sheriff’s department officer absent a crime having been committed. The editorial states that the students “violated school policy by leaving campus” “violated municipal codes by obstructing traffic lanes” while marching up Broadway. Give me a break! High School principal Michaela Philpot and several teachers attended the march/demonstration from the school. If the students violated school policy in actively learning a valuable civic and constitutional principle then it’s the school’s business, not local law enforcement’s. If Mr. Hammett and whoever joined him in this cockamamie editorial is so upset about a short time of obstructing traffic early on a Monday morning then perhaps in the interest of good law enforcement and community protection he should press charges against the students, and while he’s at it the sheriff’s deputy who accompanied them, but saw no reason to bust them.

Secondly, the editorial “presumes” pictures were being taken “in order to be able later to identify those student in the march.” If Hammett or any of his reporters except Mr. Mejia from El Sol had actually covered the demonstration he would know that the principal and some teachers were present. I think it’s safe to assume they know who these students are. Then the editorial speculates that it was necessary to take photographs to have on record in case there was a disturbance. Read the laws regarding surveillance, Mr. Hammett, and what police can and cannot do during public gatherings. Lockyer’s guideline plainly states that it is a mistake of constitutional dimension to gather information for a criminal intelligence file where there is no reasonable suspicion that a crime has been or will be committed.

Bizarrely the editorial goes on “…to ponder what might have happened” if there was organized opposition to the march and if violence ensued. Okay, then there would have been grounds for photographing and police intervention and for whatever else would have been necessary to keep the peace. But what Hammett has done in arguing the case for surveillance is set up a straw man. Again, there was and is no opposition to a police presence during the march – there was and is opposition to photographic surveillance of a peaceful, orderly and school monitored constitutionally legal gathering of students and adults exercising their civil rights when there was no criminal predicate to justify it.

Another straw man argument posed by the editorial’s writer or writers, ostensibly assisted by their “legal folks,” posits that “there is no ‘expectation of privacy’” for people gathering in public, or cameras on school buses or mounted in police patrol cars. Stationary cameras now commonly used in public areas or private businesses or in school busses, set up for the public’s protection is a different scenario altogether than photographic surveillance during free speech activity for the purpose of gathering intelligence. And the fact of the matter is the Sheriff’s Department officer was photographing adults as well as students. If this was not for the purpose of gathering intelligence then the question is – what was it being done for? This is the question that should have been asked in the newspaper’s editorial. Furthermore when asked why he was photographing the demonstrators, the officer, J. Cobert answered that he was doing it on his own volition. He later fessed up that Sgt. Shubel of the Sonoma Police Department, ordered him to do so. What the truth of this is has yet to be determined.

But The Sun’s fatuous screed was too busy dissing those adults who stood in solidarity with the Latino student’s protest for fair immigration reform, and mouthing stupid platitudes about people who still live in the 60s. If living in the 60s means fighting for our dwindling civil rights, standing up against illegal police procedures, and supporting the human rights of our Latino brothers and sisters then I’m guilty as charged. My fellow travelers and I will oppose illegal and immoral wars, unjust social persecution, and government interference in our right to dissent. That’s what we learned in the 60s in the struggle for civil rights, women’s rights, and student’s right,s and in opposition to another immoral and unnecessary war for dominance. How quickly we forget, and how terrible a price we pay for our amnesia.

Lockyer wrote the manual in order to issue guidelines for local law enforcement agencies, and sent it out to every police chief and sheriff in the state in 2003 in the form of a book titled, “Criminal Intelligence Systems: A California Perspective.” The question is: Did they read it and do they care? A 2005 survey taken by the ACLU indicates a resounding “no.” In its report titled, “The State of Surveillance: Government Monitoring of Political Activity in Northern and Central California,” it’s stated: “The survey revealed a profound lack of regulation and a disappointing level of familiarity with the Lockyer Manual.” It further states: “The vast majority of law enforcement agencies did not have policies regulating the circumstances under which officers may monitor or gather information on individuals engaged in political activity.”

Hopefully the Sonoma Police Department will adopt and implement local law enforcement regulations that will preserve constitutionally protected civil liberties, and that will highlight the need for increasingly threatened privacy protections. I can see no reason why the community and the law enforcement agency cannot create these guidelines in a timely and mutually respectful manner.