The Other Side of the COIN: Counterinsurgency and Community Policing

posted 2011-09-02 from a study by Kristian Williams:
The following discussion of U.S. domestic counterinsurgency is adapted and condensed with permission from “The Other Side of the COIN: Counterinsurgency and Community Policing” by Kristian Williams. Williams is a member of Rose City Copwatch in Portland, Oregon, and the author of Our Enemies in Blue: Police and Power in America (Soft Skull, 2004; South End Press, 2007). The full paper appeared in the May 2011 issue of Interface, and a full list of bibliographic sources can be found there.
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The unrest of the 1960s left the police in a difficult position. The cops’ response to the social movements of the day — the civil rights and anti-war movements especially — had cost them dearly in terms of public credibility, elite support, and officer morale. Frequent and overt recourse to violence, combined with covert surveillance, infiltration, and disruption (typified by the FBI’s COINTELPRO operations), had not only failed to squelch the popular movements, it had also diminished trust in law enforcement.
The police needed to re-invent themselves, and the first place they looked for models was the military. Military training, tactics, equipment, and weaponry, made their way into domestic police departments — as did veterans returning from Vietnam, and, more subtly, military approaches to organization, deployment, and command and control. Police strategists specifically began studying counterinsurgency warfare.
“Counterinsurgency” (or “COIN” is military jargon) refers to a kind of military operation outside of conventional army-vs.-army war-fighting, and is sometimes called “low-intensity” or “asymmetrical” combat. But counterinsurgency also describes a particular perspective on how such operations ought to be managed. This style of warfare is characterized by an emphasis on intelligence, security and peace-keeping operations, population control, propaganda, and efforts to gain the trust of the people.
This last point is the crucial one. As U.S. Army Field Manual, FM 3-24, Counterinsurgency, declares: “Legitimacy is the main objective.”
So during the period of police militarization, the cops also began experimenting with a “softer,” more friendly type of law enforcement — foot patrols, neighborhood meetings, police-sponsored youth activities, and attention to quality-of-life issues quite apart from crime. These techniques eventually coalesced into an approach called “community policing.”
Both militarization and community policing arose at the same time, and in response to the same social pressures. The advantages the state receives from each aspect are fairly clear: Militarization increases available force, but as important, it also provides improved discipline and command and control. It re-orders the police agency to allow for better coordination and teamwork, while also opening space for local initiative and officer discretion.
Community policing, meanwhile, helps to legitimize police efforts by presenting cops as problem-solvers. It forms police-driven partnerships that put additional resources at their disposal and win the cooperation of community leaders. And, by increasing daily, friendly contacts with people in the neighborhood, community policing provides a direct supply of low-level information.
Such information is vital, because COIN theorists advocate preemptive action against budding rebellions. The problem is that, at the early stages, subversion is not obvious and the state may not know that a threat exists. In order to anticipate conflict and prevent an insurgency, as FM 3-24 explains, COIN strategists “require insight into cultures, perceptions, values, beliefs, interests and decision-making processes of individuals and groups.” The resulting intelligence work is concerned with questions that are primarily sociological.
The U.S. government’s mapping of the American Muslim population should be viewed in this light. In 2002 and 2003, the Department of Homeland Security requested — and received — statistical data, sorted by zip code and nationality, on people who identified themselves as “Arab” in the 2000 census. And in February 2003, FBI director Robert Mueller ordered all 56 Bureau field offices to create demographic profiles of their areas of operation, specifically including the number of mosques. One Justice Department official explained that the demographics would be used “to set performance goals and objectives” for anti-terror efforts and electronic surveillance. Similarly, in 2007, the LAPD began planning its own mapping program, dressed in the rhetoric of community policing. As the L.A. Times reported, the “Los Angeles Police Department’s counter-terrorism bureau proposed using U.S. census data and other demographic information to pinpoint various Muslim communities and then reach out to them through social service agencies.”
By working with welfare services, churches, non-profits, and similar organizations, police can insinuate themselves into the fabric of neighborhood life, gain access to new sources of information, and influence community leaders. Sometimes the police can used these relationships to channel and control political opposition, moving it in safe, institutional, and reformist directions, rather than toward more radical or militant action.
We saw this dynamic at work in Oakland after transit police shot and killed an unarmed black man in 2009. In practice, preventing riots became the primary focus of the institutionalized left, as local nonprofits and churches collaborated with police to contain community anger and channel it into ritualized protest. There is no guarantee that resistance would have gone further had the nonprofits not intervened, or that greater conflict would have won greater gains. But their intervention certainly helped to contain the rebellion, and closed off untold possibilities for further action. That is, quite clearly, what it was intended to do.
We also see the logic of counterinsurgency at work in police anti-gang campaigns: The creation of databases listing suspected gang members; the mapping of the social environment, illustrating connections between gang members, associates, families, etc.; the development of community contacts, especially with local leaders — all these police practices mirror the techniques of military occupation. Police intelligence efforts are then paired with a campaign of persistent low-level harassment — stops, searches, petty citations, and the like. Each instance of harassment offers the cops the opportunity to collect additional information on the gang network while at the same time creating an inhospitable environment for those associated with gang activity.
For example, in Salinas, California, the Monterey County Gang Task Force conducts mass-arrest “round-ups,” makes random traffic stops, and regularly searches the homes of gang members on parole or probation. The sheer volume of such activity is astonishing: Since it was formed in 2005, the Task Force has been responsible for 21,000 vehicle or pedestrian stops, 5,000 parole and probation “compliance” searches, and 2,800 arrests.
Furthermore, since February 2009, combat veterans from Iraq and Afghanistan have been serving as advisors to Salinas police, with the stated aim of applying counterinsurgency tools to local anti-gang efforts. Along with their expertise, the military advisors also arrive with software, including a computer program that maps the connections between gang activity, individual suspects, and their social circles, family ties, and neighborhood connections.
This police-military partnership is occurring alongside a renewal and expansion of the SPD’s community policing philosophy. The new community focus (encouraged by the military advisors) includes Spanish language training, “Gifts for Guns” trade-in events, an anonymous tip hotline, senior-citizen volunteer programs, a larger role for the Police Community Advisory Council, and police-sponsored after-school activities.
Salinas police have also initiated partnerships with other local, state, and federal law enforcement agencies, including the Marshals, the ATF (Alcohol, Tobacco, and Firearms), the FBI, and Immigration and Customs Enforcement. The most spectacular product of these partnerships, so far, was a set of coordinated raids on April 22, 2010, codenamed “Operation Knockout.”
The raids — coming after months of investigation — mobilized more than 200 law enforcement agents and resulted in 100 arrests, as well as the confiscation of forty pounds of cocaine, fourteen pounds of marijuana, and a dozen guns. Operation Knockout was intended, not only to disrupt the targeted gangs, but to serve as a warning to others. Deputy Police Chief Kelly McMillin said: “We’re going to follow quickly with call-ins of specific groups that we know are very active. . . . We are going to tell them that what happened on the 22nd could very well happen to them.”
Such anti-gang efforts are always implicitly political, especially as they become permanent features of life in poor Black and Latino communities. Though ostensibly aimed at preventing gang violence, counter-gang campaigns inevitably lead police to monitor the entire community. One Fresno cop explains the intended scope of his department’s gang files: “If you’re twenty-one, male, living in one of these neighborhoods, been in Fresno for ten years and you’re not in our computer­then there’s definitely a problem.”
With the emergence of the counterinsurgency model, the state has ceased to view subversives in isolation from the society surrounding them. Increasingly, it has directed its attention — its intelligence gathering, its coercive force, and its alliance building — toward the population as a whole. Repression, in other words, is not something that happens solely, or even mainly, to activists; and it not just the province of red squads, but of gang enforcement teams, neighborhood liaison officers, and even police advisory boards. It comprises all those methods — routine and extraordinary, coercive and collaborative — used to regulate the conflict inherent in a stratified society. Our task is to decipher the politics implicit in these efforts, to discern the ways that they preserve state power, neutralize resistance, and maintain social inequality.
Our further task is to respond. An effective response to repression must include an offensive component — an attack against the apparatus of repression, which (if successful) will leave the state weaker and the social movement stronger. This outcome, of course, should be the aim from the start.
But it is, in a sense, misleading to speak solely in terms of responding to repression. Repression exists already. It intervenes preemptively. It forms part of the context in which we act. Oppositional movements cannot avoid repression; the challenge, instead, must be to overcome it

Modesto CopWatch Update: July & August 2011

Modesto CopWatch …Google us!
[http://wearealloscargrantcv.blogspot.com]
[http://youtube.com/209copwatch]

July 1 –The Modesto Bee reports that Stanislaus County sheriffs met with the family of Eric Vigen and gave them details of how he was unarmed when he was shot 55 times with semiautomatic rifles by Sgt. Ian Troxell, and officers Jonathan Box and Adam Percey, all of the California Highway Patrol. Vigen, 37, died June 18th when CHP responded to a report of a suicidal man at the Valero gas station at Crows Landing Road and West Main Street, west of Turlock. “An apology from the CHP would be really nice,” Clint Vigen, Eric’s brother said, “the CHP has had no contact with us to say, ‘We are sorry we killed your son … your brother,’ this is not about money; this is about an apology, some recognition of our loss.”

July 5–Kelly Thomas, a 37 year old homeless man with schizophrenia, was severely beaten by Fullerton police Jay Cicinelli and Manny Ramos after refusing to let them search his backpack. He died a few days later from his injuries. Kelly’s own father, a former cop, expressed that he was ashamed to be a law enforcement officer after what happened to his son.
Kelly Thomas before & after beating


July 16 –San Francisco police officers shoot and kill 19 year old Kenneth Harding after he ran from a $2 MUNI bus fare ticket check. Later police claim Harding shot himself when he tried pull a gun on police, but many witnesses maintain that he was shot down by SFPD.
SFPD stands over Kenneth Hading


July 19 –Nearly 100 community members, friends, and relatives of Ernest Duenez Jr. packed the Manteca City Council meeting and express concerns about the investigation into the shooting of Ernest by MPD officer John Moody on June 8th.


July 22 –Over 100 people marched through the streets of Stockton from the police station to the DA’s office exactly one year after Stockton cops shot and killed 16 year old James Rivera Jr.

July 27 –Almost 100 Stanislaus County Sheriffs and agents from the FBI and Immigration (ICE) raided the 7th Street Flea Market in Modesto as well as a few homes in Mo-town and Stockton, arresting 39 people for selling or possessing counterfeit CDs and DVDs, probation violations, and for being undocumented.

August 11 –Kari Abbey, the Stanislaus County sheriff who shot and killed Rita Elias in September of 2010, has her unusually low bail (for charges of 2nd degree murder, manslaughter, child endangerment, embezzlement, and conspiracy) raised from $300,000 to $1 million. With the money made by the Abbeys and Benny Taylor from being slumlords to stealing from work, from illegal marijuana growing operations to counterfeit money and steroids, Abbey was able to make the new bail and remain free.

August 14 –Almost 200 people gathered at the Lathrop Community Center to celebrate the life of Ernest Duenez Jr. The day included guest speakers, music, BBQ, and discussion on ways to fight police brutality in the central valley.

2011-08-31 "Federal Court Rules Videotaping Police Is A First Amendment Right" by James Cox
[http://peacefreedomprosperity.com/5618/federal-court-rules-videotaping-police-is-a-first-amendment-right]
The Federal Appeals Court has ruled that video recording the police in a public place is a constitutional right for all U.S. citizens. This is a great win for the freedom movement.  Public officials need to be held accountable for their actions.   See ruling below.
SIMON GLIK, Plaintiff, Appellee,
v.
JOHN CUNNIFFE, in his individual capacity; PETER J. SAVALIS, in his individual capacity; JEROME HALL-BREWSTER, in his individual capacity; CITY OF BOSTON,
Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]
Before Torruella, Lipez, and Howard, Circuit Judges.

    Ian D. Prior, Assistant Corporation Counsel, City of Boston Law Department, with whom William F. Sinnott, Corporation Counsel, and Lisa Skehill Maki, Assistant Corporation Counsel, were on brief, for appellants.
    David Milton, with whom Howard Friedman, Law Offices of Howard Friedman, P.C., Sarah Wunsch, and ACLU of Massachusettswere on brief, for appellee.
    Anjana Samant and Center for Constitutional Rights on brief for Berkeley Copwatch, Communities United Against Police Brutality, Justice Committee, Milwaukee Police Accountability Coalition, Nodutdol for Korean Community Development, and Portland Copwatch, amici curiae.
     August 26, 2011  


         LIPEZ, Circuit Judge. Simon Glik was arrested for using his cell phone’s digital video camera to film several police officers arresting a young man on the Boston Common. The charges against Glik, which included violation of Massachusetts’s wiretap statute and two other state-law offenses, were subsequently judged baseless and were dismissed. Glik then brought this suit under 42 U.S.C. § 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.
         In this interlocutory appeal, the defendant police officers challenge an order of the district court denying them qualified immunity on Glik’s constitutional claims. We conclude, based on the facts alleged, that Glik was exercising clearly-established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause. We therefore affirm.
I.
         We recite the pertinent facts based upon the allegations of the complaint, Asociación de Subscripción Conjunta del Seguro de Responsabilidad Obligatorio v. Flores Galarza, 484 F.3d 1, 6 (1st Cir. 2007), “accepting all well-pleaded facts in the complaint as true,” Sanchez v. Pereira-Castillo, 590 F.3d 31, 36, 52 n.15 (1st Cir. 2009).
         As he was walking past the Boston Common on the evening of October 1, 2007, Simon Glik caught sight of three police officers — the individual defendants here — arresting a young man. Glik heard another bystander say something to the effect of, “You are hurting him, stop.” Concerned that the officers were employing excessive force to effect the arrest, Glik stopped roughly ten feet away and began recording video footage of the arrest on his cell phone.
         After placing the suspect in handcuffs, one of the officers turned to Glik and said, “I think you have taken enough pictures.” Glik replied, “I am recording this. I saw you punch him.” An officer  then approached Glik and asked if Glik’s cell phone recorded audio. When Glik affirmed that he was recording audio, the officer placed him in handcuffs, arresting him for, inter alia, unlawful audio recording in violation of Massachusetts’s wiretap statute. Glik was taken to the South Boston police station. In the course of booking, the police confiscated Glik’s cell phone and a computer flash drive and held them as evidence.
         Glik was eventually charged with violation of the wiretap statute, Mass. Gen. Laws ch. 272, § 99(C)(1), disturbing the peace, id. ch. 272, § 53(b), and aiding in the escape of a prisoner, id. ch. 268, § 17. Acknowledging lack of probable cause for the last of these charges, the Commonwealth voluntarily dismissed the count of aiding in the escape of a prisoner. In February 2008, in response to Glik’s motion to dismiss, the Boston Municipal Court disposed of the remaining two charges for disturbance of the peace and violation of the wiretap statute. With regard to the former, the court noted that the fact that the “officers were unhappy they were being recorded during an arrest . . . does not make a lawful exercise of a First Amendment right a crime.” Likewise, the court found no probable cause supporting the wiretap charge, because the law requires a secret recording and the officers admitted that Glik had used his cell phone openly and in plain view to obtain the video and audio recording.
         Glik filed an internal affairs complaint with the Boston Police Department following his arrest, but to no avail. The Department did not investigate his complaint or initiate disciplinary action against the arresting officers. In February 2010, Glik filed a civil rights action against the officers and the City of Boston in the United States District Court for the District of Massachusetts. The complaint included claims under 42 U.S.C. § 1983 for violations of Glik’s First and Fourth Amendment rights, as well as state-law claims under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I, and for malicious prosecution.
         The defendants moved to dismiss Glik’s complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that the allegations of the complaint failed to adequately support Glik’s claims and that the officers were entitled to qualified immunity “because it is not well-settled that he had a constitutional right to record the officers.” At a hearing on the motion, the district court focused on the qualified immunity defense, noting that it presented the closest issue. After hearing argument from the parties, the court orally denied the defendants’ motion, concluding that “in the First Circuit . . . this First Amendment right publicly to record the activities of police officers on public business is established.”
         This timely appeal followed. Denial of a motion to dismiss on qualified immunity grounds, unlike denial of a typical motion to dismiss, is immediately appealable on interlocutory review. Garnier v. Rodríguez, 506 F.3d 22, 25 (1st Cir. 2007); cf. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (stressing “the importance of resolving immunity questions at the earliest possible stage in litigation”). We limit our review to the issue of qualified immunity, Garnier, 506 F.3d at 25, which is a legal determination that we review de novo, Raiche v. Pietroski, 623 F.3d 30, 35 (1st Cir. 2010).
II.
         Long-standing principles of constitutional litigation entitle public officials to qualified immunity from personal liability arising out of actions taken in the exercise of discretionary functions. See Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982); Barton v. Clancy, 632 F.3d 9, 21 (1st Cir. 2011). The qualified immunity doctrine “balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). We apply a two-prong analysis in determining questions of qualified immunity. Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). These prongs, which may be resolved in any order, Pearson, 555 U.S. at 236, require that we decide “(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was ‘clearly established’ at the time of the defendant’s alleged violation,” Maldonado, 568 F.3d at 269.
          The latter analysis of whether a right was “clearly established” further divides into two parts: “(1) ‘the clarity of the law at the time of the alleged civil rights violation,’ and (2) whether, given the facts of the particular case, ‘a reasonable defendant would have understood that his conduct violated the plaintiff['s] constitutional rights.’” Barton, 632 F.3d at 22 (alteration in original) (quoting Maldonado, 568 F.3d at 269). An affirmative finding on these inquiries does “not require a case directly on point, but existing precedent must have placed the . . . constitutional question beyond debate.”Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). At bottom, “the salient question is whether the state of the law at the time of the alleged violation gave the defendant fair warning that his particular conduct was unconstitutional.” Maldonado, 568 F.3d at 269.
         On appeal, appellants  argue that they are entitled to qualified immunity on each of Glik’s constitutional claims and, accordingly, that the district erred in denying their motion to dismiss.  Their arguments track the two parts of the “clearly established right” analysis. With regard to the First Amendment claim, appellants dispute the clarity of the law establishing a First Amendment right to record police officers carrying out their public duties. On the Fourth Amendment claim, appellants contend that, in light of Massachusetts case law interpreting the state’s wiretap statute, a reasonable officer would have believed there was probable cause to arrest Glik, and thus would not have understood that the arrest would violate the Fourth Amendment. We examine each argument in turn.
A. Immunity from Glik’s First Amendment Claim
         1. Were Glik’s First Amendment Rights Violated?
         The First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.
          It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” First Nat’l Bank v. Bellotti, 435 U.S. 765, 783 (1978); see also Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“It is . . . well established that the Constitution protects the right to receive information and ideas.”). An important corollary to this interest in protecting the stock of public information is that “[t]here is an undoubted right to gather news ‘from any source by means within the law.’” Houchinsv. KQED, Inc., 438 U.S. 1, 11 (1978) (quoting Branzburg v.Hayes, 408 U.S. 665, 681-82 (1972)).
         The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966). Moreover, as the Court has noted, “[f]reedom of expression has particular significance with respect to government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.’” First Nat’l Bank, 435 U.S. at 777 n.11 (alteration in original) (quoting Thomas Emerson,Toward a General Theory of the First Amendment 9 (1966)). This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. Cf. Gentile v. State Bar of Nev., 501 U.S. 1030, 1035-36 (1991) (observing that “[t]he public has an interest in [the] responsible exercise” of the discretion granted police and prosecutors). Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses, see id. at 1034-35 (recognizing a core First Amendment interest in “the dissemination of information relating to alleged governmental misconduct”), but also may have a salutary effect on the functioning of government more generally, see Press-Enter. Co.v. Superior Court, 478 U.S. 1, 8 (1986) (noting that “many governmental processes operate best under public scrutiny”).
         In line with these principles, we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties. In Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999), a local journalist brought a § 1983 claim arising from his arrest in the course of filming officials in the hallway outside a public meeting of a historic district commission. The commissioners had objected to the plaintiff’s filming. Id. at 18. When the plaintiff refused to desist, a police officer on the scene arrested him for disorderly conduct.Id. The charges were later dismissed. Id. Although the plaintiff’s subsequent § 1983 suit against the arresting police officer was grounded largely in the Fourth Amendment and did not include a First Amendment claim, we explicitly noted, in rejecting the officer’s appeal from a denial of qualified immunity, that because the plaintiff’s journalistic activities “were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights, [the officer] lacked the authority to stop them.” Id. at 25 (emphasis added).
         Our recognition that the First Amendment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts. See,e.g., Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing a “First Amendment right to film matters of public interest”); Demarest v. Athol/Orange Cmty. Television, Inc., 188 F. Supp. 2d 82, 94-95 (D. Mass. 2002) (finding it “highly probable” that filming of a public official on street outside his home by contributors to public access cable show was protected by the First Amendment, and noting that, “[a]t base, plaintiffs had a constitutionally protected right to record matters of public interest”); Channel 10, Inc. v. Gunnarson, 337 F. Supp. 634, 638 (D. Minn. 1972) (holding that police interference with television newsman’s filming of crime scene and seizure of video camera constituted unlawful prior restraint under First Amendment); cf. Schnell v. City of Chi., 407 F.2d 1084, 1085 (7th Cir. 1969) (reversing dismissal for failure to state a claim of suit claiming police interference with news reporters and photographers’ “constitutional right to gather and report news, and to photograph news events” under the First Amendment (internal quotation mark omitted)), overruled on othergrounds by City of Kenosha v. Bruno, 412 U.S. 507 (1973);Connell v. Town of Hudson, 733 F. Supp. 465, 471-72 (D.N.H. 1990) (denying qualified immunity from First Amendment claim to police chief who prevented freelance photographer from taking pictures of car accident).
         It is of no significance that the present case, unlikeIacobucci and many of those cited above, involves a private individual, and not a reporter, gathering information about public officials. The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press. Houchins, 438 U.S. at 16 (Stewart, J., concurring) (noting that the Constitution “assure[s] the public and the press equal access once government has opened its doors”); Branzburg, 408 U.S. at 684 (“[T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”). Indeed, there are several cases involving private individuals among the decisions from other courts recognizing the First Amendment right to film. See,e.g., Smith, 212 F.3d 1332; Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D. Pa. 2005) (holding that arrest of individual filming police activities from private property violated First Amendment); Cirelli v. Town of Johnston Sch. Dist., 897 F. Supp. 663 (D.R.I. 1995) (holding that teacher had a right under the First Amendment to videotape potentially hazardous working conditions at school, which were a matter of public concern). Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.
         To be sure, the right to film is not without limitations. It may be subject to reasonable time, place, and manner restrictions. See Smith, 212 F.3d at 1333. We have no occasion to explore those limitations here, however. On the facts alleged in the complaint, Glik’s exercise of his First Amendment rights fell well within the bounds of the Constitution’s protections. Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are “sharply circumscribed.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). Moreover, as in Iacobucci, the complaint indicates that Glik “filmed [the officers] from a comfortable remove” and “neither spoke to nor molested them in any way” (except in directly responding to the officers when they addressed him). 193 F.3d at 25. Such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.
         In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”). Indeed, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. at 462-63. The same restraint demanded of law enforcement officers in the face of “provocative and challenging” speech, id. at 461 (quoting Terminiello v.Chicago, 337 U.S. 1, 4 (1949)), must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.
         2. Was the Right to Film Clearly Established?
         Though the “clearly established” inquiry does “not require a case directly on point,” al-Kidd, 131 S. Ct. at 2083, we have such a case in Iacobucci. What is particularly notable about Iacobucci is the brevity of the First Amendment discussion, a characteristic found in other circuit opinions that have recognized a right to film government officials or matters of public interest in public space. See Smith, 212 F.3d at 1333; Fordyce, 55 F.3d at 439. This terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment’s protections in this area. Cf. Lee v.Gregory, 363 F.3d 931, 936 (9th Cir. 2004) (noting that some constitutional violations are “self-evident” and do not require particularized case law to substantiate them). We thus have no trouble concluding that “the state of the law at the time of the alleged violation gave the defendant[s] fair warning that [their] particular conduct was unconstitutional.” Maldonado, 568 F.3d at 269.
         We find unavailing the two cases principally relied upon by the appellants in arguing that the First Amendment right to film was not clearly established at the time of the arrest, both of which were decided after Glik’s arrest. The first is an unpublished per curiam opinion from the Fourth Circuit that summarily concludes, with no discussion of the facts or relevant law, that the “right to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct.” Szymecki v. Houck, 353 F. App’x 852 (4th Cir. 2009). Such unpublished opinions “have no precedential force,” Merrimac Paper Co. v. Harrison (In re Merrimac Paper Co.), 420 F.3d 53, 60 (1st Cir. 2005); see also United States v.King, 628 F.3d 693, 700 n.3 (4th Cir. 2011) (same), and the absence of substantive discussion deprives Szymecki of any marginal persuasive value it might otherwise have had.
         The second case appellants cite is a Third Circuit opinion finding the right to film not clearly established in the context of a traffic stop, characterized as an “inherently dangerous situation[].” Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010). Kelly is clearly distinguishable on its facts; a traffic stop is worlds apart from an arrest on the Boston Common in the circumstances alleged. Nonetheless, even if these cases were to establish a circuit split with respect to the clarity of the First Amendment’s protections in the situation before us, that split would not undermine our conclusion that the right violated by appellants was clearly established in this circuit at the time of Glik’s arrest. SeeNewman v. Massachusetts, 884 F.2d 19, 25 (1st Cir. 1989) (finding constitutional right clearly established in the First Circuit despite “recogni[tion] that the courts are not yet unanimous on whether this . . . right exists”).
         In summary, though not unqualified, a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment. Accordingly, we hold that the district court did not err in denying qualified immunity to the appellants on Glik’s First Amendment claim.
B. Immunity from Glik’s Fourth Amendment Claim
         1. Were Glik’s Fourth Amendment Rights Violated?
         The existence of a Fourth Amendment violation on the facts alleged here turns on a question of Massachusetts law. The Fourth Amendment requires that an arrest be grounded in probable cause, Martínez-Rodríguez v. Guevara, 597 F.3d 414, 420 (1st Cir. 2010), i.e., that, “at the time of the arrest, the ‘facts and circumstances within the officer’s knowledge . . . [were] sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect [had] committed, [was] committing, or [was] about to commit an offense,’” Holder v. Town of Sandown, 585 F.3d 500, 504 (1st Cir. 2009) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). The thrust of Glik’s Fourth Amendment claim is that the appellants lacked any such probable cause that Glik had violated state law at the time of arrest. The appellants argue, to the contrary, that the allegations of the complaint establish probable cause that Glik violated Massachusetts’s wiretap statute.  Upon examination of the statute and relevant case law from Massachusetts’s Supreme Judicial Court, we disagree.
         Massachusetts’s wiretap statute makes it a crime to “willfully commit[] an interception . . . of any wire or oral communication.” Mass. Gen. Laws ch. 272, § 99(C)(1). As the Supreme Judicial Court has noted, this statute sweeps more broadly than comparable laws in other jurisdictions, in that its prohibition is not restricted to the recording of communications that are made with a reasonable expectation of privacy. SeeCommonwealth v. Hyde, 750 N.E.2d 963, 967-68 & n.5 (Mass. 2001).  The critical limiting term in the statute is “interception,” defined to mean “to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.” Id. § 99(B)(4).
         The relevant question, then, is whether, on the facts alleged in the complaint, Glik “secretly” videotaped the appellant officers.  The Supreme Judicial Court has held that a recording is “secret” unless the subject has “actual knowledge” of the fact of recording. Commonwealth v. Jackson, 349 N.E.2d 337, 340 (Mass. 1976). It has also made clear that “actual knowledge” can be proven by “objective manifestations of knowledge” to “avoid the problems involved in speculating as to the [subject's] subjective state of mind.” Id. at 340-41. Moreover, the court has noted that “actual knowledge” does not require that there be any explicit acknowledgment of or reference to the fact of the recording. Id. at 340 (“[T]he person recording the conversation [need not] confirm the [subject's] apparent awareness by acknowledging the fact of the intercepting device.”). Thus, in Hyde, where the defendant was convicted of a wiretap violation for secretly recording a traffic stop, the Supreme Judicial Court explained that “the recording would not have been secret” within the meaning of the statute if the defendant had simply “held the tape recorder in plain sight.” 750 N.E.2d at 971. The unmistakable logic of Hyde, building on Jackson, is that the secrecy inquiry turns on notice, i.e., whether, based on objective indicators, such as the presence of a recording device in plain view, one can infer that the subject was aware that she might be recorded.
         Commonwealth v. Rivera, 833 N.E.2d 1113 (Mass. 2005), forcefully illustrates this point. There, a criminal defendant argued for suppression under the wiretap statute of an audio recording by a convenience store security camera, on the theory that he lacked actual knowledge that the security cameras recorded audio as well as video. Although the case was resolved on other grounds, four of the seven justices of the Supreme Judicial Court concurred to note that the defendant’s unawareness of the audio recording capabilities of the security cameras did not render the recordings “secret” under the wiretap statute where the cameras were in plain sight. Id. at 1125 (Cowin, J., concurring in part) (“That the defendant did not know the camera also included an audio component does not convert this otherwise open recording into the type of ‘secret’ interception prohibited by the Massachusetts wiretap statute.”);id. at 1130 (Cordy, J., concurring) (“Just because a robber with a gun may not realize that the surveillance camera pointed directly at him is recording both his image and his voice does not . . . make the recording a ‘secret’ one within the meaning and intent of the statute.”).
         The complaint alleges that Glik “openly record[ed] the police officers” with his cell phone, and further that “the police officers admitted Mr. Glik was publicly and openly recording them.” On its face, this conduct falls plainly outside the type of clandestine recording targeted by the wiretap statute. See Jackson, 349 N.E.2d at 339 (“While we recognize that [the wiretap statute] is designed to control the use of electronic surveillance devices by private individuals because of the serious threat they pose to ‘the privacy of all citizens,’ (§ 99A), it is clear that the Legislature intended that the statutory restrictions be applicable only to the secretuse of such devices.” (emphasis added)). Moreover, not only doesHyde (along with the Rivera concurrences) indicate that the use of a recording device in “plain sight,” as here, constitutes adequate objective evidence of actual knowledge of the recording, but here the police officers made clear through their conduct that they knew Glik was recording them. Specifically, one of the police officers approached Glik after the suspect had been handcuffed and told him, “I think you have taken enough pictures.”
         The officers protest that Glik’s use of a cell phone was insufficient to put them on notice of the recording. They note that a cell phone, unlike the tape recorder used in Hyde, has numerous discrete functions, such as text messaging, internet browsing, video gaming, and photography, and thus the fact of an individual holding out a cell phone in front of his body is of indeterminate significance. The argument suffers from factual as well as legal flaws. The allegations of the complaint indicate that the officers were cognizant of Glik’s surveillance, knew that Glik was using his phone to record them in some fashion, and were aware, based on their asking Glik whether he was recording audio, that cell phones may have sound recording capabilities. The fact that a cell phone may have other functions is thus irrelevant to the question of whether Glik’s recording was “secret.”
         Appellants’ argument reduces to the contention that, though they were aware of Glik’s recording, they initially thought Glik was taking pictures of them rather than recording video and audio. This is almost precisely the argument rejected by the four concurring justices in Rivera, and it runs directly contrary to the logic of Hyde’s “plain view” discussion. Taking the appellants’ argument to its logical end, the Hydedefendant’s recording would have escaped a wiretap offense only if he had held his tape recorder in plain view and there was affirmative evidence that the officers were aware that the device was switched on and recording audio. To the contrary,Hyde makes the point that the use in plain view of a device commonly known to record audio is, on its own, sufficient evidence from which to infer the subjects’ actual knowledge of the recording. See 750 N.E.2d at 971 (noting that recording would not have been secret under the statute if “the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight” (emphasis added)). Simply put, a straightforward reading of the statute and case law cannot support the suggestion that a recording made with a device known to record audio and held in plain view is “secret.”
         We thus conclude, on the facts of the complaint, that Glik’s recording was not “secret” within the meaning of Massachusetts’s wiretap statute, and therefore the officers lacked probable cause to arrest him. Accordingly, the complaint makes out a violation of Glik’s Fourth Amendment rights.
         2. Was the Absence of Probable Cause Clearly Established Under the Circumstances?
         Appellants contend that, regardless of whether Glik’s conduct in fact violated the wiretap law, the state of the law was such that a reasonable officer would not have understood that arresting Glik for a wiretap offense under the circumstances alleged in the complaint would violate Glik’s Fourth Amendment rights. They point out, rightly, that a lesser showing is required for an officer to be entitled to qualified immunity from a Fourth Amendment claim based on a warrantless arrest than to establish probable cause. See Cox v. Hainey, 391 F.3d 25, 31 (1st Cir. 2004). Officers are entitled to qualified immunity “so long as the presence of probable cause is at least arguable.” Ricci v. Urso, 974 F.2d 5, 7 (1st Cir. 1992) (quotingProkey v. Watkins, 942 F.2d 67, 72 (1st Cir. 1991)).
         The presence of probable cause was not even arguable here. The allegations of the complaint establish that Glik was openly recording the police officers and that they were aware of his surveillance. For the reasons we have discussed, we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was “secret” merely because the officer did not have actual knowledge of whether audio was being recorded. We thus agree with the district court that, at this stage in the litigation, the officers are not entitled to qualified immunity from Glik’s Fourth Amendment claim.
III.
         For the reasons set forth above, we affirm the district court’s order denying appellants’ claim of qualified immunity.
         So ordered.

2011-08-30 "New Jersey Ruling Calls Police Tactics Into Question" by Sam Taxy
[http://www.care2.com/causes/new-jersey-ruling-calls-police-tactics-into-question.html]
Last week, the New Jersey Supreme Court ruled that current police tactics for eliciting eyewitness evidence are woefully inadequate [http://www.nytimes.com/2011/08/25/nyregion/in-new-jersey-rules-changed-on-witness-ids.html]. They are revising guidelines for traditional police lineups. This makes it just one of two states that has any kind of uniform guideline for these police procedures. Given that these faulty tactics are responsible for at least 190 known wrongful convictions [http://www.nytimes.com/2011/08/29/us/29witness.html], this decision is likely to shed further light on an issue that would improve the justice of America’s criminal justice system.
The New York Times explains the logic of the decision [http://www.nytimes.com/2011/08/29/us/29witness.html]: “In its ruling, the court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures are flawed and can send innocent people to prison.” The court then “attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.”
Anyone who has seen a TV crime show is familiar with the police lineup, in which an officer guides an eyewitness to a room where he or she can identify a criminal from a line of possible suspects. Though it is no longer done this way (the police officers use pictures now), this is how most police departments put together eyewitness accounts. It turns out, though, that only 25-30% of police departments across the country have any kinds of guidelines for this part of the investigation [http://www.nytimes.com/2011/08/29/us/29witness.html].
Not surprisingly, with no oversight, as much as 1/3 of all eyewitness testimony is incorrect. In light of these inconsistencies, increasing regulation on police lineups is expected to have little impact on public safety; there is no reason why these rules will make it easier for criminals to get off. Lt. Matthew Murray, a spokesman for the Denver, Colorado police chief, noted that in his city (which has implemented similar regulations on lineups) regulations “don’t impact cases negatively, and actually have just the opposite effect.” [http://www.nytimes.com/2011/08/29/us/29witness.html]
In New Jersey, the proposed changes are minimal, but expected to have a big effect. Most importantly, the lineups will be done blindly, so the police officer who shows the witness the pictures will not know which pictures are those of suspects. Also, instead of giving witnesses one batch of pictures, officers will now do the lineup more gradually, so witnesses do not feel pressure to pick an innocent person out of a group.
Adam Serwer of The American Prospect goes further [http://prospect.org/csnc/blogs/adam_serwer_archive?month=08&year=2011&base_name=you_cant_believe_your_eyes], suggesting that the way that police lineups are conducted is not the only problem – eyewitness testimony in general is unreliable at best because, though “our memories may seem vivid, they’re often not as accurate as we think they are.” If studies do show that “even under ideal conditions most of us are lousy at IDing people, and under the conditions of most crime scenes we’re a whole lot worse,” Kevin Drum of Mother Jones argues, the New Jersey court decision should merely be the first step in a series of national regulations [http://motherjones.com/kevin-drum/2011/08/who-you-gonna-believe].
Indeed, with the US Supreme Court reviewing police methods this November, the New Jersey court decision could set the stage for much needed reform. When reviewing the case, the nation’s highest court should consider the hundreds of people who have been misidentified and forced to go to prison for crimes they did not commit… and the low-cost remedies that New Jersey is about to implement.

2011-08-22 Anonymous - "OpBART"

2011-08-23 "BART Hates Free Speech, Anonymous #OpBART Protest, Civic Center station, 8/22/11: video" by dave id from "Indymedia" newswire
[http://www.indybay.org/newsitems/2011/08/23/18688466.php]
In justification of BART's shutdown of mobile phone service on August 11th, the agency began to disingenuously claim that demonstrations against BART's police brutality were a threat to passenger safety, even though no one has ever been hurt during a BART protest. On August 22nd, at the second demonstration called by Anonymous, BART took this safety rationale to new heights, not only claiming that holding a banner was safety concern but additionally that even raising one's voice was an arrestable threat to safety. Apparently, any criticism of the agency within the BART system is now a safety issue, or at least BART believes that legal rationale relieves them of all obligations toward respecting Constitutionally-protected free speech.
In the video below, BART officer J. Conneely from the BART police department's "Tactical Team" steps up to three demonstrators holding a blue banner, starts to grab it, and tells them that they are subject to arrest for displaying the banner. "You are free to express yourself upstairs. It's a safety issue. You are not allowed to do that down here," he says. Conneely refuses to explain how the banner is a safety issue.
Within another couple of minutes, Conneely tells a demonstrator who is discussing the BART police killing of Charles Hill on July 3rd that she has to "keep [her] voice down… for safety reasons," and that by speaking loudly she is subject to arrest. Picking up on this strange BART police declaration, another protester announces that "if we raise our voices, we will be arrested." That demonstrator then leads a chant of "No justice, no peace, disband the BART police," and is promptly surrounded by BART riot police who proceed to physically remove him from the station for arrest. (Reports are that those arrested within Civic Center station have been charged with trespassing. Go figure.)
It is clear that BART's policy against "expression" within stations is not content-neutral. Four people were arrested in the Civic Center station on August 22nd for speaking out against the BART police, but a passenger who was yelling at protesters was not arrested nor even confronted by BART police, allowed to rant at length. And somehow a political banner has been determined by the agency to be a safety issue, yet BART stations are filled with commercial advertisements, across the walls and sometimes even on station floors and stairs.
BART refuses to hold its police accountable when they beat or kill passengers, and now the agency appears to be at wits end on how to deal with Bay Area community members that won't shut up about it. Being a public transportation system, BART simply cannot stop in-station protests, short of declaring itself an independent country and implementing martial law. And so the agency is grasping at straws, setting new Constitutionally-dubious precedents in its attempts to stifle free speech, from pulling the plug on mobile phone antennas to declaring that raising one's voice on a platform (if the speech is critical of BART) is an arrestable offense. The problem with BART's new approach is that as it futilely tries to ward off public criticism of its violent and unaccountable police force, and the managers and executives that look the other way or help to cover it up, BART has brought upon itself a wave of new critics, from civil libertarians to Anonymous, people who have never protested BART before yet are more than willing to join in the fight for civil rights in the battle against BART.
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2011-08-22 "Video of the first arrest inside the Civic Center BART station in San Francisco" by dave id from "Indybay.org" newswire


2011-08-22 "BART arrests protesters for speaking out" by Shawn Gaynor from "San Francisco Bay Guardian" newspaper
[http://www.sfbg.com/politics/2011/08/22/bart-arrests-protesters-speaking-out]
Faced with yet another protest over BART's disruption of cell phone service on August 11 to preemptively disrupt a protest, and with lingering anger over the BART police shooting of Charles Hill on the Civic Center station platform on July 3, BART police stifled vocalizations of dissent with immediate arrests during an Aug. 22 protest on the Civic Center Station platform.
“Free speech is the best kind of speech,” said one protester on the Civic Center BART platform as the second protest called by the international hacker group Anonymous in as many weeks challenged the BART system at rush hour.
As a few protesters began to gather, surrounded by dozens of riot police and media, a uniformed BART police officer told a young African American man he would be arrested if he raised his voice. Chanting began in response among the small pack of protesters, and the man was promptly arrested by BART police.
As he was being led off the platform by police, a woman who stood in the center of the platform began verbally engaging a BART officer, saying, “BART police need to be reformed. Make BART Safe. Make BART safe.” She was apparently arrested for nothing more then her words. Deputy BART Police Chief Daniel Hartwig said he could not provide any information about what the arrestees would be charged with.
Shortly after, BART police declared the small gathering an illegal assembly. Riot police surrounded some 40 protesters for arrest as media was ejected from the station.
Civic Center station and Powell Station were both shuttered, blocking many transit passengers from their evening commute.
What started as a cell phone disruption has apparently escalated into BART arresting anyone expressing an unfavorable opinion of BART.
When asked if the arrested represented a new BART police policy for protests, Hartwig told the Guardian BART's policy remains the same. “This environment has to remain safe, and if that safety is jeopardized in any way, we will make arrests," he said. "We have a responsibility to maintain a safe station.”
Protesters said it was appropriate to protest on the Civic Center platform because it is the location of the July 11 shooting of Hill by BART police.
Earlier in the day, the National Lawyer's Guild issued a statement calling on BART to respect passengers' and community members' civil liberties during the Aug. 22 demonstration.
"First and foremost, the BART Police should provide transparency regarding the killing of Charles Hill and should stop shooting people, especially unarmed and incapacitated individuals," the NLG statement read. "Second, BART should apologize for its disruption of cell service on August 11th and not repeat this unconstitutional action. Finally, BART should recognize passengers’ right to freedom of speech on platforms and in trains."
Calls to the BART for the names of the arrestees and number of arrests had not yet been returned by press time.
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2011-08-22 video by Shawn Gaynor





An unidentified man joins an organized protest by the group known as "Anonymous," after it shut down Bay Area Rapid Transit Civic Center Station, in protest of what they perceived was a violation of their First Amendment Right three weeks ago by Bart Police, In San Francisco Monday August 22, 2011. (Maria J. Avila Lopez) ( Maria J. Avila Lopez )
An unidentified man is arrested by Bay Area Rapid Transit Police, during a protest organized by the group known as "Anonymous," at Civic Center Station in San Francisco Monday August 22, 2011. The group say perceived that Bart Police violated their First Amendment Right three weeks during another protest. (Maria J. Avila Lopez) ( Maria J. Avila Lopez )


2011-08-23 "At least 40 arrested during BART protest, 3rd protest called for Monday" by "Bay City News"
[http://www.sfexaminer.com/local/bay-area/2011/08/least-40-arrested-during-bart-protest-3rd-protest-called-monday]
San Francisco police said about 40 people were arrested during Monday evening’s BART protest, which shut down two downtown San Francisco BART stations at several points throughout the roving demonstration.
Protesters gathered on the Civic Center BART platform at 5 p.m. The protesters chose the platform to gather because Charles Hill was killed there by a BART police officer on July 3, after Hill allegedly attacked the officer with a knife. The shooting set off a string of protests that have shut down San Francisco BART stations three times since then.
San Francisco police Officer Albie Esparza said dispersal orders were given several times throughout the protest which started at the Civic Center and made its way east on Market Street and back toward the Civic Center throughout the evening.
Two people were arrested shortly after the protest began after disobeying dispersal orders, Esparza said.
At Fourth and Market streets one person was arrested on suspicion of igniting a flammable substance and when demonstrators marched to the first block of Grove Street, at least 35 others were arrested, Esparza said.
All protesters were arrested on suspicion of failing to disperse upon command of a traffic officer and pedestrian in the roadway, Esparza said.
Police also recovered a hammer from the demonstration.
Police said their goal is to accommodate demonstrators and allow them their constitutional right to protest while protecting lives.
Previous BART shut downs stemmed from the July officer-involved shooting. On Aug. 11, BART said it had intelligence that a disruptive protest was being planned and shut down cellphone service in several stations to prevent protesters from communicating in stations and tunnels.
That protest failed to materialize, leading BART spokesman Linton Johnson to declare the precaution was successful in disrupting the protest.
But blocking cellphone service angered the hacker protest group “Anonymous,” who has been behind many of the protests. The group called on their loose collective of members to hack BART websites, flood BART offices with emails, faxes and phone calls, and had called for another protest on Aug. 15.
Anonymous has established the hashtag #opBART on Twitter, on which the group called for a third protest Monday, Aug. 29 at the same time and location as Monday’s protest, which affected commuters, BART and Muni riders for the second week in a row.

Justice for Rahiem Brown

Say NO to Murderers in our Schools
Wednesday August 24
4:00 PM - 7:00 PM
The Oakland Unified School Board, 1025 2nd Avenue, Oakland CA
Event Type: Protest
Contact Name Cat Brooks
Email Address artisticintentions [at] yahoo.com
WHO: The Coalition for Justice for Oscar Grant, ONYX, The Oscar Grant Committee to Stop Police Brutality & State Repression and various community members, parents and students
What: Press Conference & Rally
Where: The Oakland Unified School Board, 1025 2nd Avenue, Oakland CA
When: Wednesday, August 24, 2011, 4:00 Press Conference, 5:00 Rally
Why: The Oakland Unified School District Police Chief, Peter Sarna, was recently forced to step down, after he said black people were not welcome in his hometown of Orinda and were "n----rs who should be hung in the town square".
Who did they replace this racist with? A murderer named Barhin Bhatt, whose promotion comes less than a week after the community went to the school board meeting to demand he be fired for executing Raheim Brown as he ...SAT in his CAR and was no danger to the police officer.
The community demands the termination of Bhatts and Bellusa as well as their arrest and immediate prosecution for the murder of Raheim Brown.
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On January 22, 2011, 20-year-old Raheim Brown was sitting in his car outside of Skyline High School when he was approached by Sgts. Bhatt and Bellusa. In a short while, Raheim Brown would be dead; shot five times and his female companion beaten and arrested. Police alleged Brown was armed with a screwdriver but even if that is so, the young man was sitting in his car and never exited the vehicle thus posed absolutely NO threat to the officers. This is at a minimum excessive force, but the community believes it is actually no less than murder.
On Wednesday, August 10th, community members attended a school board meeting to demand the termination of Bhatts and Bellusa but less than a week later, not only was Bhatts not fired; he was promoted into a position of prominence and power.
The community demands the termination of Bhatts and Bellusa as well as their arrest and immediate prosecution for the murder of Raheim Brown.
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* more info on the former police chief's racist comments:
[http://www.baycitizen.org/policing/story/top-oakland-schools-cop-accused-racial]
* more info on the current police chief's murder of Raheim Brown:
[http://www.indybay.org/newsitems/2011/08/13/18687578.php]
[http://sfbayview.com/2011/the-oakland-school-police-killing-of-raheim-brown-jr]

2011-08-23 "Threats or payback?Activist arrested after criticizing the SFPD and its tactics on television" by Josh Wolf
[http://www.sfbg.com/2011/08/23/threats-or-payback]
Officers from the San Francisco Police Department arrested a 21-year-old activist from Hunters Point less than 24 hours after he appeared on a public access television show where he indicted the police for a recent shooting and named officers he says have personally harassed him.
Around 4 p.m. on Saturday, July 23, Debray Carpenter, who is also known as Fly Benzo, was arrested near the intersection of Oakdale Avenue and Lane Street and booked on charges of threatening a police officer and resisting arrest. After spending almost four days in jail, the District Attorney's Office declined to file any charges and Carpenter was released.
"If they feel like they can charge me, they would've," Carpenter said after his release. "SFPD lies and that's a fact. I just want the people to see how they lie. Just like they are lying about me, they could be lying about Kenneth Harding. Anything they say needs to be taken with a grain of salt."
On July 16, police shot and killed Kenneth Harding Jr. while he was running from police. When officers stopped Harding at the 3rd and Oakdale Muni platform and asked him to produce a transfer, he bolted. The official story is that while he was running away, Harding pulled out a gun and fired at least one shot at police before they returned fire. Police later said the shot that killed him pierced his neck on the right side and was fired from his own gun, but some witnesses say that Harding didn't have a gun, and many people in the community still have doubts about what happened.
Carpenter has spoken out against Harding's death on the TV news, and he has participated in and organized protests calling for greater police accountability in the weeks following the shooting. On July 22, Carpenter appeared as the only guest on the public access program "CLAER Da Corner," a 90-minute show hosted by Sharen Hewitt, the executive director of Community Leadership Academy & Emergency Response Project (CLAER), an anti-violence nonprofit.
During his appearance on the program, Carpenter named several SFPD officers who he claimed had harassed him in the past. He also recounted an exchange that took place a few days earlier on July 19. It was during this encounter that police say Carpenter made the criminal threat for which he was later arrested.
The police version of the incident differs significantly from the story that Carpenter shared with Hewitt on her show before his arrest.
According to Carpenter, he was with a group of people having a casual conversation with an SFPD officer as two other officers drove up and aggressively pursued a teenager for no apparent reason. When the group asked the officers about their behavior, one of the officers explained that she's from New York, said Carpenter.
This prompted Carpenter to bring up Sean Bell, a young man who was gunned down by the NYPD, and the officer replied, "I haven't shot anyone, yet," according to Carpenter.
"Ya'll bleed too. Just how we bleed, ya'll bleed," Carpenter shot back.
He told the host that the officer then responded by asking, "Is that a threat?"
"No, that's a fact," replied Carpenter. The police then drove away, he said.
But the police say that Carpenter threatened to kill one of the officers and was aggressive from the moment they arrived.
"Carpenter started yelling at them and he said, 'White pig bitch I'm gonna put one in you,'" SFPD spokesman Lt. Troy Dangerfield told us.
"You bleed like I do. I'm gonna put one in you and show you," Carpenter allegedly told police after being asked if his previous statement had been a threat, according to Dangerfield.
"There was a large crowd of people that began circling around the officers and they determined it was unsafe to make an arrest at the time," Dangerfield said. "One of our rules is if you know somebody you don't have to make an arrest right there and cause a big scene."
The police arrested Carpenter four days later and booked him for allegedly making terrorizing threats and resisting arrest. While in jail Carpenter told his lawyer, John Hamasaki, that he didn't know why he had been arrested and Hamasaki said at the time he wasn't sure either.
"The arrest stinks," Hamasaki told us. "Just an exercise of power by the police letting folks know if they speak up, they can be locked up."
The District Attorney's Office said that it declined to file charges because there was insufficient evidence to secure a conviction but declined to go into further detail.
"It is not uncommon for the District Attorney to drop charges that are against the police," said Dangerfield, the police spokesman. "Unless there's injuries, photos and things like that, they rarely want to prosecute a lot of threats against police officers, and even more resisting arrest, because they think that's the type of business we're in."
"That's bullshit," said Hamasaki. "(Crimes against police are) the hardest things for us to negotiate to get them to come down. ... The DA doesn't want to upset the rank and file."
Erica Derryck, a spokeswoman for the District Attorney's Office, also disagreed with Dangerfield's assessment.
"We take seriously any threats against San Franciscans whether they are uniformed sworn officers or members of the general public," Derryck said. "We review every case on a case-by-case basis."
Carpenter says he isn't the only one being targeted for his activism in Hunters Point. Police arrested Henry Taylor, 54, as he was on his way to speak up at the July 20 town hall meeting at the Bayview Opera House in which Chief Greg Suhr's appearance ignited pandemonium (see "Anger erupts over police shootings," July 27).
Dangerfield said that police arrested Taylor for violating a stay-away order, but Taylor says that he isn't under a stay-away order for that area and that police arrested him to prevent him from testifying at the town hall meeting.
No recordings are known to exist between Carpenter and the officer, just as no video recordings have revealed exactly what happened between Harding and the police on the 3rd Street Muni platform. There are several videos of the immediate aftermath, including footage of Harding writhing on the ground while police raised their weapons and denied him first aid, but apparently no video of the shooting itself. In Oakland, all officers are now issued small cameras to wear on their uniforms that record every interaction an officer has with the public. In the case of both Carpenter and Harding, such equipment would likely provide answers to what actually transpired, but Dangerfield said the SFPD has no plans to follow Oakland's lead. "I know the chief of police has said he is looking into cameras for officers who do plain clothes assignments, and warrant arrests, and things like that. For the general patrol force, at this point, that's not the case," Dangerfield said. "There are some officers who do carry their own. ... There's no rule that says that can't be done."