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.
---
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.
---
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."

2011-08-19 "Like BART Protests, Internal Documents Reveal UC Has Spied on Student Fee Hike Demonstrations" by Eric Lee
[http://www.californiaprogressreport.com/site/node/9279]
Eric is a 21- year-old recent graduate of UC Davis who has been active in student anti-austerity protests for the past three years. He is a native of Santa Rosa. He can be reached at ca.ericlee@gmail.com.
---
BART actions to inhibit free speech activity isn't new to University of California students who earlier this year uncovered internal documents showing officials has conspired to monitor and control constitutionally-protected fee hike protests at UC Davis.
High-ranking University of California, Davis administrators including Chancellor Linda Katehi, several vice chancellors, more than 30 staff members, and campus police were involved, according to internal documents uncovered by students involved in the demonstrations.
Students and community members are particularly disturbed in light of similar Bay Area Rapid Transit police transgressions on the freedom to communicate.
We feel threatened that public institutions like UC Davis and BART are actively pursuing policies that treat students and passengers respectively like criminals. In the throes of the current economic meltdown, it is perhaps more valid to question the criminality of dishonest actions taken against those who are trying to fight for a better life. It is a telling sign that decision makers in these institutions feel the need to incriminate others in order to avoid public pressure for their own, sometimes violent, actions.
The documents, obtained through the state public records act, reveal high-ranking administrators, staff members, and leaders of the campus police department formed a network called the “Activism Response Team” to keep close tabs on student activists, including monitoring student Facebook activity, infiltrating protests and attempting to obtain information about “anticipated student actions," and individuals involved in the protests.
In one case, an undercover campus police officer marched with students in plain clothes and refused to identify herself as a member of the UCD police department. UCD has apologized, calling it a "mistake."
Students, faculty, staff, and the Sacramento and Yolo Chapters of the American Civil Liberties Union are extremely concerned about the deepening abuse of police power in publicly used spaces—both public transit terminals and college campuses.
Students take offense at these incursions in light of the political merit of campus protests against tuition hikes: undergraduate tuition at the University of California has increased by more than 40 percent since 2009 and 300 percent since 2001 as essential services have been cut, class sizes reduced, and lower proportions of in-state students admitted.
We students worry about the precedent that is being set by a law enforcement apparatus that is using the pulpit of “security” to restrict our rights as citizens of the United States and as human beings. Time and time again history has shown that the false cry of “security” can only be used to roll back the hard-fought advances of a democratic society.
If we wish to learn from history, we must not sit idly as the pillars of democracy begin to erode and tremble in the wake of a polarizing and precarious reality.
People, including students at a major university and commuters using public transportation, have the right to dissent without being "monitored" by a secret team of administrators and undercover police or having their right to communication impinged upon.
If police or administrators wish to observe in a public fashion protests then that is their right. But it ought not to be done in manner more befitting a totalitarian regime than an open public university.

2011-08-15 Anonymous - "OpBART"

2011-08-16 "Scenes from #opBART: video of the Civic Center protests" by Shawn Gaynor from "San Francisco Bay Guardian" newspaper
[http://www.sfbg.com/politics/2011/08/16/scenes-opbart]
Protesters shut down afternoon rush hour BART operations on Aug. 15 as part of a campaign by international hacker group Anonymous in response to the transit agency's unprecedented move to shut off cell service to prevent a protest. Here's footage from underground at Civic Center Station, and on the street as stranded commuters sought a way home [Video by Shawn Gaynor]:


Comment:
This is the Civil-Rights movement!!!
And this movement of the people is never popular in that it takes risks to bring to light todays social inequities. None of you who prosper from the mad game of capitalism will ever understand what it is to see your own brother shot coldly by the police in front of your eyes for no criminal reason. Activists who are not engaged in civil-disobedience are still being violently targeted by the police for nothing more than engaging in research about police brutality: Guy Jarreau's mother in Vallejo, for example... Fly Benzo in San Francisco's Bay View... if nobody stands up to protect our neighbors, then this country doesn't stand a chance at upholding our freedom against Tyranny!


2011-08-15 "Anonymous BART Protest Shuts Down Several Underground Stations" by Damon Poeter
[http://www.pcmag.com/article2/0,2817,2391160,00.asp]
Supporters of Anonymous took to the streets and subways Monday to rally against BART's suspension of cell phone service during a previous protest, forcing police to shut down several BART and Muni underground stations in San Francisco.
"I'm here to fight censorship and shutting down people's right to protest with cellphone usage," said one Anonymous supporter wearing the global activist and hacking collective's trademark Guy Fawkes mask to protect his identity.
Gathering at about 5pm PT at the UN Plaza near the Civic Center BART and Muni station, the protestors began marching northeast on Market Street towards Powell station at about 5:25pm, right around the time that SFPD and BART police officers emerged from Civic Center station to inform that public that the station was being shut down for safety reasons.
Later, as the protestors descended upon Powell station about three blocks away, that station was also shut down. Several more stations on Market street were reportedly shut down temporarily, but all had been reopened as of Monday evening.
Cell phone service on BART remained active during Monday's protest.
Last week, Bay Area transit authorities shut down underground cell phone service on BART trains and platforms during a protest over the shootings of two men by BART police. BART authorities said they shut down cell service last Thursday from 4-7pm in an attempt to prevent protest organizers from communicating and organizing via mobile devices.
They have maintained their right to conduct such actions to protect public safety.
But protestors like the several hundred or so that Anonymous rallied Monday in just about 24 hours say hindering people's ability to communicate while organizing protests amounts to a violation of free speech.
While dozens of protestors at the San Francisco event wore masks of some sort, many more of the people on hand wore no masks. And while the event was ostensibly organized by Anonymous to protest the cell phone shutdown, chants yelled by the crowd as it marched down Market Street were clearly aimed at BART police for a series of incidents in recent years that have left suspects injured and dead.
Anonymous on Sunday hacked the mybart.org website, defacing some Web pages and also publishing user emails, phone numbers, addresses, and login credentials. Critics of the hacktivist group say the data dump shows that Anonymous has little regard for innocents caught in the cross-fire of its various battles.
Justin Minnich, an Anonymous supporter at the San Francisco protest, defended Anonymous' tactics.
"There always is [collateral damage] but that's like any battle you take, if you stand up against anything, if you believe in something, if you fight a fight, there's going to be collateral damage," Minnich said.
"There's collateral damage on their side," he added, pointing to several BART police and SFPD officers at Civic Center station about 15 minutes before they shut it down, along with Powell station on Market Street.
"They consider what they're doing is right, protecting people, serving the community. Well obviously there's collateral damage on their side, there's people getting shot."
A counter-protestor at Civic Center station who identified himself only as Robert carried a sign claiming that Anonymous "used to be cool." He said hacking websites was "teenage stuff" and that Anonymous, which he claimed to have once been a part of, should be focused on more serious targets.
"I've done things with Anonymous in the past and this strikes me as scraping the bottom of the barrel," Robert said of the BART protest. "Anonymous seems to be going through some teething problems right now, it's got this newfound freedom, from anonymity on the Internet, and it's using it for picking on targets that really shouldn't be taking up their time.
"I think the hacking of websites and the release of private information is ridiculous and we shouldn't be wasting our time on those things. We should be dealing with the perpetrators of the biggest problems we have to deal with right now, the financial crisis, militarism, all these other things that are valid targets."
---
Photographs by Anna Vignet.





2011-08-15 "Waves of protest pound at BART, shutting down stations" by Shawn Gaynor from "San Francisco Bay Guardian" newspaper
[http://www.sfbg.com/politics/2011/08/15/waves-protest-pound-bart-shutting-down-stations]
The latest battle between BART and its growing group of grassroots foes played out during today’s (Mon/15) afternoon rush hour, shutting down some San Francisco stations.
What started as a fizzled anti-police brutality protest at BART's Civic Center station has spiraled into a San Francisco moment with echoes of the Arab Spring and V For Vendetta. Following an unprecedented decision by BART officials to preemptively cut off cell phone service on August 11, in a bid to disrupt a protest that never developed, public outrage led to further protest today and a hacking attack on MyBart.org by the notorious international hacker group Anonymous over the weekend.
BART stated that it cut cell service to several of its stations during the evening commute on August 11 as a matter of public safety, fearing what officials characterized as a civil disturbance. BART did not return our call for comment, but it was apparently worried about a repeat of the July 11 protest that flooded Civic Center BART station at rush hour, preventing trains from leaving the station platform. At issue in that protest and the one that never materialized on August 11 was the fatal shooting of Charles Hill by BART police on July 3, on the Civic Center BART station train platform [http://www.sfbg.com/politics/2011/07/07/rally-planned-protest-latest-bart-shooting] [http://www.sfbg.com/2011/07/27/anger-erupts-over-police-shootings].
Today’s protests to disrupt rush hour BART service threatened by Anonymous materialized out of the rush hour crowd. Protestors, some in Guy Faulks masks, some with bloody shirts, spoke into cell phones repeating, “Can you hear me now? Can you hear me now?” over and over and over.
Upset by what they characterized as BART's record of police brutality, and the recent disruption of cell phone service, they poured into the station as the platform swelled to capacity.
One protestor stood silently with a shirt that read, “Dear BART, you can't take away our ability to call 911 while also making it a habit to shoot your riders.”
“It's incredibly ironic to squelch free speech in San Francisco, which has long been a bastion of civil liberties,” said Rainey Reitman of the Electronic Frontier Foundation who was on hand for the protest.
Others sat on the platform floor, making messages on little red hearts decrying the shooting of Hill. A yellow handbill from #ObBART, the Anonymous name for the protest, even decried BART's record and free speech.
Some began to block trains from exiting the platforms, promoting riot police to move in and clear people away. After a half-hour, BART Police Sgt. Coosndz ordered the protestors to clear the platform.
Protesters peaceably complied, spreading out through the Market Street corridor and causing closures at other nearby stations.
“No arrests were made on the platform and the protesters have peaceably dispersed,” Sgt. Macaulay of the BART police told the Guardian later.
BART officials said they did not shut down in-station cell service during the protest, which hardly seemed relevant as the stations were closed. On the street, amidst the stranded rush hour commuters it was difficult to tell who was protesting, with small groups of protesters gathering vocally but briefly and then melding back into the crowd.
Though inconvenient, the protest took the form of perhaps the most civil of civil disturbances the city has seen surrounding the police brutality issue – a stark contrast to some of the recent tense stand-offs between police and protesters.
One BART official struggled to keep up with a stream of people on the corner of Market and Montgomery trying to find another way home. “People have been very understanding,” he said while catching his breath for a minute.
As of press time, well beyond the normal evening commute hours, BART stations throughout the city’s downtown remained closed.

LEGAL QUESTIONS
According to the ACLU of Northern California, “BART is the first known government agency in the United States to block cell service in order to disrupt a political protest.”
As often happens in unprecedented cases, the legality of BART's cell service disruption has been widely debated. BART asserts that it was with its rights to disrupt phone service.
“Organizers planning to disrupt BART service on August 11, 2011 stated they would use mobile devices to coordinate their disruptive activities and communicate about the location and number of BART Police. A civil disturbance during commute times at busy downtown San Francisco stations could lead to platform overcrowding and unsafe conditions,” the agency said in an official statement.
Some have said that view constitutes prior restraint, and a breach of Federal Communications Commission cell service regulations, while others have suggested that BART may have been within its rights.
“Cell phone service has not always been available in BART stations. The advent of reliable service inside of stations is relatively recent,” acknowledged Eva Galperin of the Electronic Frontier Foundation, a group that advocates for free speech in the realm of electronic communication. “But once BART made the service available, cutting it off in order to prevent the organization of a protest constitutes prior restrain on the free speech rights of every person in the station, whether they’re a protestor or a commuter.”
Michael Rifher, staff attorney ACLU of Northern California, was less sure BART's actions crossed the line of legality. “BART contracts for phone service likely allow for this,” he said. “But from a policy point of view our government should never shut down the free flow of information. It's dangerous to our democracy to react to protest by silencing them.”
While the legality of BART's phone service shutdown seems unclear, the reaction of free speech advocates has not been.
Galperin characterized the action of BART officials as shameful. “BART officials are showing themselves to be of a mind with the former president of Egypt, Hosni Mubarak, who ordered the shutdown of cell phone service in Tahrir Square in response to peaceful, democratic protests earlier this year.”
Rifher echoed the same sentiments when asked about the ethics of BART's decision. “All over the world oppressive regimes shut down basic communications to silence dissent, and we rightly condemn them. Now we are seeing similar acts here. Do we really want a system where police can call up a cell phone provider to cut service to an area over a demonstration? I think no. Demonstrations and communication are upheld by the first amendment.”
Outraged by BART's actions, San Francisco state Senator Leland Yee called on the BART Board of Directors to take immediate action to prevent a repeat incident in the future. Yee also plans to contact the Federal Communications Commission to request an investigation on the constitutionality of the decision.
“I am shocked that BART thinks they can use authoritarian control tactics,” said Yee. “BART’s decision was not only a gross violation of free speech rights; it was irresponsible and compromised public safety.”

THE HACK
In a statement released by BART on August 14, the agency acknowledged its MyBART.org site was attacked in response to the disruption of cell service. The MyBART.org website was hacked using the logo of Anonymous and to add a link to its Twitter account. About 2,200 user identifications, emails and passwords were also stolen from the site and publicized.
"Today myBART.org account information was compromised in connection with an illegal and unauthorized intrusion into the myBART system. In response to this intrusion, we have temporarily shut down the myBART.org website, and have notified law enforcement authorities."
The attack, claimed by Anonymous, had been threatened the day before. “The data was stored and easily obtainable via basic SQLi. Any 8-year-old with an Internet connection could have done what we did to find it. On top of that none of the info, including the passwords, was encrypted,” read a statement included with the released data.
In a separate statement Anonymous claimed the attack saying, “Anonymous will attempt to show those engaging in the censorship what it feels like to be silenced.”

WHO IS ANONYMOUS?
“We are Anonymous. We are legion. We never forgive. We never forget. Expect us.” Thus read an August 12 release by the group announcing in advance the BART.org hack, and Civic Center station protest. But who is Anonymous?
Heroes to some, loathed by others, Anonymous has caused a worldwide stir in recent years as the group has become associated internationally with championing issues involving Internet censorship.
Anonymous has become an increasing presence, some would say nuisance, in cyberspace as the group's notoriety has rocketed after hacking attacks against major credit card companies and Paypal, in the wake of an extra judicial financial embargo of Wikileaks by major credit card companies.
In January, the federal authorities issued more than 40 search warrants and made more than 20 arrests in a nation wide sweep against Anonymous attacks on companies that illegally withheld donations to Wikileaks.
BART Police have come under increasing public scrutiny starting with the New Year's Eve 2009 shooting of a restrained Oscar Grant. The force has been involved in three fatal shooting in the past 18 months, as many incidents as the previous 30 years of operations. The death of Charles Hill in July was the most recent of these incidents.


2011-08-17 "Anonymous hackers not in sync on San Francisco BART protests" by Ari Burack from "San Francisco Examiner"
[http://www.sfexaminer.com/local/2011/08/anonymous-hackers-not-sync-bart-protests]
The hacker collective Anonymous, which accessed BART’s website Sunday and published passwords and personal data belonging to more than 2,400 riders, is not of one mind about how best to challenge the powers that be.
In response to news stories describing that incident, some people claiming to be affiliated with the group have expressed concern about the action and how Anonymous is portrayed.
“The group that conducted the hacking, people need to know that it was NOT part of the plan, was/is NOT condoned by the majority of Anonymous, and was done IN SECRET,” said 19-year-old Michela Marsh, who said she’s been associated with the group for six years.
A student at New York University who said she is in contact with the “major players” behind this and other operations, Marsh claimed in an email that a group of six “Anons” planned the BART hack Friday night. She said when she and other people argued against the action in an online chat, “they made the chat private.”
Marsh described a rift between older Anons, who favor more extreme methods, and newer ones, who prefer more peaceful actions.
Monday’s BART protesters did not all appear to be members of Anonymous, even though self-proclaimed group members purportedly scheduled the event. Other protesters, angry at perceived BART police abuses, were more actively involved in trying to disrupt BART operations.
Some defended the so-called OpBART hack. “OpBART was an amazing op,” the self-identified Anon “Freedom Forever” told The San Francisco Examiner via Twitter. “It shows BART that they cannot censor the peoples of this world and that they can not take away freedom.”
Anon “Alba and Omegle,” who said he was not involved in the hacking, directed his criticism at the “technocratic desk jockey fail” that provoked the hack — BART’s decision last week to shut down wireless service in response to a planned protest at the Civic Center station.
“Coming up with sound policies is hard work and should not be as easy as flicking a switch,” Alba and Omegle wrote to The Examiner.
Nonetheless, he tweeted, Anonymous could have done a better job of responding to the transit agency’s action. He said the personal information released could have been scrambled so innocent people’s names were not matched with their passwords.
“I support illegal methods if [they] cause less collateral damage than legal,” he wrote.
---
Evolution of Monday’s protest
July 3: Fatal shooting by BART police of an armed man at Civic Center station prompts a commute-delaying July 11 protest; BART officials promise to crack down on future protests.
Thursday: When BART shuts down cellphone service in stations for three hours as a counter-measure against protesters, a planned protest fails to materialize.
Sunday: Responding to the cellphone shutdown, Anonymous hacks into myBART.org website and releases personal information of more than 2,000 people.


2011-08-19 "Anonymous hacker quits, burns bridges on way out" by Eric Mack from "C-Net" news
[http://news.cnet.com/8301-1023_3-20094821-93/anonymous-hacker-quits-burns-bridges-on-way-out/]
This past Sunday, after reporting on Anonymous' hack of BART's Web site and leak of user information from mybart.org [http://news.cnet.com/8301-1023_3-20092221-93/anonymous-defaces-bart-site-leaks-user-data/], I started receiving messages on Twitter and elsewhere from sources purporting to be tied to Anonymous. They were all critical of the leak of personal info from mybart.org--pointing to dissent on Twitter and Anonymous IRC channels. "Just wanted you to know not all of Anon approves..." read one of the messages. Then today, it seems to have all become too much for one former Anonymous hacker.
Until now, he's gone by the handle "SparkyBlaze"--and he's not one of the people that contacted me earlier this week--but today he outed himself as a Manchester, U.K., resident named Matthew who has had enough.
(Credit: Screenshot by Eric Mack/CNET)
"Over The Past Few Months Things Inside Anon Have Changed. I Am Mostly Talking About AntiSec And LulzSec. They Both Go Against What I Stand For (And What Anonymous Says They Stand For)," he writes in a Pastebin posting [http://pastebin.com/WYJS303d]. "AntiSec Has Released Gig After Gig Of Innocent Peoples Information. For What? What Did They Do? Does Anon Have The Right To Remove The Anonymity Of Innocent People? They Are Always Talking About Peoples Right To Remain Anonymous So Why Are They Removing That Right?"
He goes on to say that "higher-up" Anons have thrown other members of the collective "to the lions," claiming that Anonymous' campaigns and leadership have been ineffective and prey on "kids" to do their dirty work and risk arrest.
SparkyBlaze does give some credit to Anonymous in a brief postscript:
"I Am Not Saying Everything Anon Has Done Is Pointless Things Like Getting Internet To People When Governments Cut It Off I Support. I Am Just Saying Most Of It Isn't Helping Anyone And Is Just Getting Kids Arrested."
CNET contacted SparkyBlaze and asked if the BART operation was the last straw for him. He says "That was one factor, mainly it was because I was just fed up with anon putting peoples data on-line and then claiming to be the big heroes."
He adds that he did find it hypocritical that Anonymous claimed to be fighting for the BART users by putting their data online.
Matthew/SparkyBlaze's defection has made at least minor waves within Anonymous. A post by Commander X, purported to have led a number of recent hacks, including Sunday's BART operation, suggests SparkyBlaze should be considered persona non grata:
(Credit: Screenshot by Eric Mack/CNET)
SparkyBlaze tells CNET that posting was in response to his calling Commander X an "idiot for exposing peoples data and supporting it" coupled with his Pastebin.
With regard to his own involvement with Anonymous, Matthew/SparkyBlaze says he supported a number of operations, "and some un-ethical ones that I am not proud of... but, I never exposed peoples data. I want to be clear on that."
When pressed for examples, he says he was proud to be involved in attacks on sites run by Iran's government, but not so proud to have been involved in the Sony hack.
"If I get arrested I will have to deal with it. I don't care about what anon do now and I just want to say. Not all anon's are bad only some... Some do want change, They are just going about it in the wrong way..."