San Francisco Police Union Steps Up To Criticize Police Chief Over His Handling Of The Leak Investigation

from the seems-to-be-OK-with-raiding-a-journalist's-home,-though dept

This is fantastic. Not in the way something amazing and pure is fantastic, but fantastic in the way that only an oft-maligned profession feeding on itself can be. It could be lawyers or debt collectors or Instagram influencers. In this case, it's law enforcement.

Someone in the San Francisco Police Department tried to disparage a dead public defender/police critic by leaking a police report on his death. The person apparently on the receiving end -- stringer Bryan Carmody -- shopped it to a few local journalists. The SFPD decided the leak investigation should wend its way through Carmody's house. So, officers raided his place and walked off with $10,000-worth of laptops, phones, tablets, and other electronics.

Sidestepping the state's journalist shield law has not worked out well for the SFPD. After some momentary commiseration from San Francisco public officials, the SFPD is now surrounded by critics. And it's not just the normal critics. Even the District Attorney has publicly stated he doesn't see how this search could possibly have legal -- a surprising turn of events considering most prosecutors tend to support the local PD (or stay silent) when the PD fucks things up.

The chief of police has also issued an official apology for the actions of the officers he oversees. Chief Bill Scott turned over the leak investigation to an outside department and said the warrant obtained to search the journalist's home lacked "clarity" and was "concerning."

This public statement has led to criticism from another surprising source: the local police union. The SF Police Officers Association is unhappy -- not because of the raid itself, which it has no comment on -- but because Chief Scott threw officers under the bus rather than take responsibility for an investigation he was directly overseeing.

Yesterday, SFPD Chief William Scott showed everyone in the SFPD, and all San Franciscans, what his character consists of and it was a pathetic, deceitful and shameful display of self-preservation, finger pointing, and political kowtowing. We all deserve better.

The investigation into whomever disseminated the initial Adachi police report is a righteous one and whomever is responsible should be held accountable. What we know is that Chief Scott ordered that investigation. Chief Scott not only followed every twist and turn of the investigation but he knew every element of the investigation, directed the investigation and has clearly either come down with the most debilitating case of amnesia or is flat out not telling the truth about his direct involvement and the horribly flawed direction he gave to find the leak of the police report.

In either case, it is time for Chief Scott to go.

At least the union has gone on record that the officer who leaked the report should be punished. This will come in handy when the PD does decide to punish that person and the union inevitably starts protesting whatever punishment is handed down. But it's on point in its criticism of Chief Scott. If he was directly overseeing this, he had a chance to stop it before it became a national embarrassment.

Thus endeth the things I agree with here. The SFPOA remains wrong in its assessment of what's happening now. It claims turning this investigation over to an outside agency is a "diversion" and that Chief Scott should a.) be investigated, and b.) have the courtesy to resign before the investigation is over. Somehow, the SFPOA believes the PD -- with its untrustworthy Chief and its leaky officers -- should be trusted to police itself.

There will likely be additional angry statements from the police union as this investigation rolls on. The SF Chronicle reports a bunch of search warrants were served in this case, most of them targeting people the union never wants to see targeted by search warrants.

San Francisco police executed seven search warrants as they tried to find out who leaked a police report to a freelance journalist, including searches of officers and one of the journalist’s phone records, police officials and an attorney in the case said.

The search of phone records preceded the now-notorious May 10 raids on journalist Bryan Carmody’s home and office.

New info -- none of which is making the SFPD or its leadership look any better -- continues to trickle out. But there are still a lot of unanswered questions, as Trevor Timm of the Freedom of the Press Foundation points out. Many have to do with the warrant Chief Scott apparently approved, but couldn't recall the details of until everyone in the country was asking questions. It certainly seems the warrant wouldn't have been approved if judges knew it targeted a journalist, so there's a good chance this warrant contains crucial omissions or flat-out lies.

But the SFPD wasn't the only agency involved in the raid, detention, and questioning of Brian Carmody. The feds stepped in and the Freedom of the Press Foundation has its own list of unanswered questions:

• Why did the FBI attempt to conduct an interview of Carmody after his house had been raided?

• Why was the FBI involved in this case at all, since it dealt with a local matter?

• Did the FBI follow its own guidelines involving an investigation into a member of the media?

• Did the FBI gain access to Carmody’s equipment following its seizure and if so, did they search it, too?

As slowly as this is developing, it's likely the answer to these questions are many, many months away. This has made headlines around the nation over the past couple of weeks and the SFPD has yet to release the search warrant affidavit publicly. It has only recently gotten around to admitting the raid was likely unlawful.

The PD won't be able to keep everyone in the dark forever. The affidavit will be published eventually and then everyone else can see the stuff the police chief called "concerning" and "unclear." It will probably be both, but the public's unlikely to use these vague euphemisms. Until then, we can all enjoy the small amount of pleasure from watching the San Francisco law enforcement community attack itself, rather than members of the public.

Filed Under: bill scott, bryan carmody, journalism, police, sf poa, sfpd, warrants

SFPD Finally Admits The Search Of A Journalist's Home Over A Leaked Document Was Probably Illegal

from the at-least-a-day-late-and-several-dollars-short dept

The raid of stringer Bryan Carmody's home by the SFPD has detonated directly in the face of the department. After someone in the department leaked a police report in an effort to smear a prominent public defender following his unexpected death, an internal investigation was opened to determine which SFPD employee was the source of the leak.

This internal investigation quickly went external. Bryan Carmody had shopped copies of the police report to a few news stations, which resulted in the SFPD raiding his home and seizing $10,000 of his equipment, including phones, laptops, and storage devices.

After a brief round of "this is all by the book" by a number of SF officials, it soon became apparent this was not at all by the book. In addition to Carmody's First Amendment protections, the stringer was also likely shielded by state law, which forbids searching and seizing journalists' property for the sole purpose of trying to identify a source.

The mayor walked back her statement defending the SFPD for its actions. So did a couple of council members. The District Attorney delivered the harshest criticism of the police force, saying he couldn't imagine a situation where this search would have been appropriate.

At long last, the department itself is coming around to how much it fucked this whole thing up. A qualified apology has been delivered, as Evan Sernoffsky reports for SF Gate.

After two weeks of growing outrage, San Francisco Police Chief Bill Scott apologized Friday for raiding a journalist’s home and office in a bid to unmask a confidential source, admitting the searches were probably illegal and calling for an independent investigation into the episode.

Police “should have done a better job,” Scott said in an interview with The Chronicle. “I’m sorry that this happened. I’m sorry to the people of San Francisco. I’m sorry to the mayor. We have to fix it. We know there were some concerns in that investigation and we know we have to fix it.”

Among Chief Scott's concerns are the possibility the search warrants didn't specify Carmody's occupation. It seems clear they didn't. If they did, they likely would have been rejected as impermissible under state law, not to mention the First Amendment.

“One of the issues that I saw in this is in the initial warrants,” he said. “There’s one that’s particularity troubling and concerning. The issue is the clarity in the warrant. The description of what his role entails as a journalist — there should have been more clarity there. That is going to be a concern that has to be explored further.”

Scott has seen the underlying documents, so this hedging is a little disingenuous. But it's probably necessary, at least from the department's perspective. The SFPD is likely planning its defense against Carmody's inevitable lawsuit, so it does the agency no favors if the chief states plainly officers conducted illegal searches using warrants obtained untruthfully. The SFPD may also be holding out hope the judge presiding over the coming lawsuit will find stringers aren't journalists, but that eventuality seems unlikely.

Furthermore, "issue of clarity" just sounds like fancy words for lying. It's incredibly unlikely the officers didn't know what Carmody did for a living. Stringers are fixtures at crime scenes, car accidents, and other emergency calls. This information appears to have been downplayed in the affidavit, if not omitted completely.

The independent investigation could lead to additional charges. Not only will this investigation try to find the source of the leak, but it's going to go after the officers who used a bogus affidavit to violate the state's journalist shield law. The end result of all of this is the stripping away of another layer of trust and a widening of the gap between the police and the policed.

Filed Under: 1st amendmentbill scott, 4th amendment, bryan carmody, journalism, san francisco, searches, sfpd, warrant

SFPD Earning Universal Condemnation For Raiding A Journalist's Home During Its Internal Leak Investigation

from the way-to-project,-guys dept

When the San Francisco Police Department decided to externalize its internal investigation of a leaked document, things got unlawful and unconstitutional in a hurry. Deciding the best way to sniff out the leaker of a police report detailing the death of prominent public defender Jeff Adachi was through the front door of a local journalist, the SFPD now has a lot of explaining to do.

The SFPD raided journalist Bryan Carmody's home supposedly to find information that would lead them to one of its own officers. Carmody is a stringer and had shopped around a copy of the police report someone inside the SFPD leaked to him. None of this is criminal. Nothing about Carmody's information-gathering fell outside of the law. If anyone broke the law, it was the officer or PD employee who gave him the report.

That fact notwithstanding, officers showed up at Carmody's house and -- after waging a losing battle with an impressive front gate -- handcuffed him for six hours while confiscating $10,000-worth of electronic devices and computers. It's safe to assume these items contained plenty of information Carmody had gathered from other sources, as well as information about those sources. Again, this search and seizure violated the state's journalist shield law, if not the US Constitution itself.

Carmody has released security footage of the SFPD's arrival. One can only assume his front gate will be facing obstruction of justice charges.

This case has numerous disturbing aspects, starting with the leak itself. Jeff Adachi was an elected public defender and a fierce critic of local law enforcement. This likely motivated the leak of the police report, which alleged Adachi had died of a possible cocaine overdose while enjoying the company of a woman who wasn't his wife. A chance to smear a vocal opponent of law enforcement abuses was too good to pass up.

When the news first broke, city officials claimed law enforcement did nothing wrong. These were knee-jerk assertions but that doesn't excuse officials for responding this badly when confronted with unexpected (and unexpectedly bad) news.

Now that everyone's given it a bit more thought, the SFPD is on its own, bereft of high-level defenders.

The [San Francisco] Board of Supervisors’ longest-tenured member, Aaron Peskin, blasted both the police and the judges who issued the warrants.

“[T]he State Penal Code clearly states that ‘no warrant shall issue’ to compel a journalist to disclose a source. The fact that the Superior Court nevertheless signed warrants authorizing police to conduct a raid on a journalist’s home and to confiscate their belongings boggles my mind,” Peskin said in a written statement on May 15.

“Regardless, the police have clearly gone about this the wrong way,” the statement continued. “Last month, the Board of Supervisors held a hearing to hold the San Francisco Police Department accountable for its role in the release of confidential and highly sensitive, personal information related to former Public Defender Jeff Adachi’s tragic death, which I co-sponsored. That they took this as license to break down a journalist’s door with a sledgehammer is an obvious deflection from their own accountability.”

The mayor has also issued a new statement, undoing the "I'm sure the cops were doing the right thing" assertions they made right after the news broke. Mayor London Breed walked back support of the SFPD, but still hedged a bit when it came to criticizing the judges who had approved the search warrant.

[T]wo judges issued the search warrant, and I have to believe that the judges’ decision was legal and warranted, and therefore so was the search.

Whether or not the search was legal, warranted and appropriate, however, is another question.

And the more we learn, the less appropriate it looks to me.

How appropriate the search was remains to be seen. The search warrant application remains sealed. The only upshot of this search backfiring so spectacularly is that the SFPD is returning Carmody's property to him -- likely months before it would have if this had managed to fly under the radar.

More surprisingly, the District Attorney's office has turned against the SFPD and is openly questioning the search of Carmody's home.

My office has not seen the warrant or the facts upon which it was based, but absent a showing that a journalist broke the law to obtain the information that police are looking for, I can’t imagine a situation in which a search warrant would be appropriate.

Even if there were such a showing, however, no search should have been conducted without the use of a special master. Journalists have multiple sources to whom they owe confidences, similar to an attorney who has multiple clients to whom they owe attorney-client privilege.

Seizing the entire haystack to find the needle risks violating the confidences Mr. Carmody owes to all his sources, not just the person who leaked the police report.

The SFPD has stepped in it... hard... with both jackboots. Carmody was originally questioned by the SFPD prior to the raid but refused to provide any answers and asked to speak to a lawyer. It should have ended there. But rather than raid the homes of suspects wearing badges, it chose to violate state law by raiding the home of an uncooperative journalist.

Filed Under: bryan carmody, jeff adachi, journalism, sfpd, source protection, sources, warrants

San Francisco PD Raids Journalist's Home To Find Out Which One Of Its Cops Leaked An Autopsy Report

from the tfw-an-internal-investigation-ends-up-inside-a-civilian's-house dept

If someone at your police department has leaked a sensitive documents, how should you respond?

A. Conduct an internal investigation to find the source of the leak

B. Raid a journalist's home

If you're the San Francisco Police Department, you do both.

San Francisco police on Friday raided the home of a freelance journalist who provided three Bay Area television stations with a copy of a police report into the death of Public Defender Jeff Adachi, the journalist and police officials said.

Bryan Carmody, a freelance videographer known in the industry as a stringer, told The Chronicle that San Francisco police executed a search warrant at his Outer Richmond District home and Western Addition office and seized his computers, cell phones and other electronic devices.

Whoever leaked it, did it quick. The autopsy report appeared on newcasts only hours after the public defender collapsed in his apartment. An internal investigation was opened following some public criticism of the PD's handling of sensitive info. The leaking of this document suggested someone in the force wanted to take a shot at the public defender (and fierce critic of the PD) only hours after his passing by letting the public know about the illegal substances found in Adachi's system. City officials recognized this and came down hard on police officials.

In response, the SFPD has apparently decided to externalize its internal investigation. While it's possible this raid will ultimately result in the discovery of the leaker, this end does not justify the means. Law enforcement does serious damage to protected speech when it goes after journalists to out their sources. If the SFPD had restricted its investigation to its own officers, journalists wouldn't be feeling a chill descending on their line of work.

And this all came about because the SFPD can't take "no" for an answer. Journalists should protect their sources. If they don't, they soon won't have any. Courts have recognized the need to protect sources, as have a handful of journalist shield laws around the nation.

“The search warrant executed today was granted by a judge and conducted as part of a criminal investigation into the leak of the Adachi police report,” said David Stevenson, a police spokesman.

He added that the “actions are one step in the process of investigating a potential case of obstruction of justice along with the illegal distribution of a confidential police report.”

[Journalist Brian] Carmody said two inspectors with the Police Department’s Internal Affairs Bureau “politely asked” for his source on the Adachi report two weeks ago, but he declined to reveal the person’s name.

This is a dangerous game the SFPD's playing. It's betting a court won't find a stringer protected by California's journalist shield law. There's no case law stating affirmatively that freelance journalists are covered by this law, but the text of the law suggests stringers who sell footage, photos, and information to other journalists are probably protected.

A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

That's not going to play well in court. The state's shield law provides absolute immunity in criminal prosecutions and contempt hearings when the journalist is not being criminally charged. It doesn't appear anyone's planning on charging this journalist with a criminal act… at least not at this point. And yet, the PD decided to treat him like a criminal to search for evidence needed to close its internal investigation. There's a good chance the SFPD misrepresented what Carmody did for a living to sneak the warrant past the judge and the state's shield law. And with this possibly bogus warrant, it seized 15 computers, "numerous tablets," and Carmody's personal cellphone. If Carmody decides to sue, it's going to be very difficult for the SFPD to defend its actions.

Filed Under: 4th amendment, bryan carmody, jeff adachi, journalism, sfpd, source protection

San Francisco Police Department Kicks FBI's Joint Terrorism Task Force To The Curb

from the thanks,-but-no-thanks dept

In the wake of President Trump's travel ban, the San Francisco Police Department has offered up an unprecedented response: it's breaking up with the FBI.

On Wednesday, San Francisco officers took a bold stance against Trump’s new immigration laws. In response to Trump’s Muslim ban, they are cutting ties between the police department and an FBI task force.

The San Francisco Police Department (SFPD) has worked with the FBI on a Joint Terrorism Task Force (JTTF) since 2007, with the purpose of investigating terrorism threats, collecting intel, and making arrests.

Generally speaking, federal partnerships are forever… especially in Forever Wars. Local law enforcement agencies have been working side-by-side with federal agencies since the Drug War began. The same goes for the War on Terror. Wars keep government agencies in good health, awash in perpetual funding and repurposed military gear. Local governments are seldom interested in ending these lucrative arrangements, whether or not the underlying activity is productive.

But San Francisco already sees its supply of federal funding drying up. President Trump has made it clear he'll cut off this flow to cities that care more about immigrants than he does. So, there's some gamemanship in this move -- one that sends a message to Trump while expressing some resignation to the eventual fiscal punishment to come. The city of Austin, Texas is doing the same thing, but fighting the battle on two fronts, as its decision to call itself a "sanctuary city" has also earned it the displeasure of the state's governor.

But the SFPD's rejection of the FBI's "assistance" in the War on Terror suggests a couple of things -- neither of them complimentary -- about the federal agency's usefulness in this "war."

The first is explained in the Think Progress article.

[T]he SFPD will no longer work with the JTTF on the grounds that the federal agency will likely increase efforts to surveil Muslims, following Trump’s recent executive order to prevent Muslims from entering the county.

The other part is implied. By telling the feds to beat it, the SFPD is suggesting the FBI isn't doing much to acutally make San Francisco safer. The Joint Terrorism Task Force seems to be more about expanding surveillance and obtaining perpetual funding than preventing terrorist attacks or uncovering their conspiracies.

This much can be ascertained by the FBI's counter-terrorism efforts to date. For the most part, the FBI's terrorism busts have relied heavily on FBI informants being the brains, muscle, and wallet behind supposed future acts of terrorism. Undercover agents have pushed some of the weakest humans in the nation towards acts of violence -- acts which would likely never have materialized on their own. The FBI has poked and prodded easily-influenced people -- some elderly, some with mental problems -- into professing their support for [Current Top Terrorist Organization], helped them plan trips to [Top Terrorist-Associated Foreign Country], and purchased everything from duct tape to latex gloves to weapons for would-be terrorists that seemingly would have difficulty opening a savings account, much less coordinating an act of terrorism.

The SFPD feels it will be fine without the FBI's dubious assistance, which appears to be mostly limited to trampling civil liberties and ever-expanding surveillance with minimal oversight. The city can apparently handle the terrorism threat without federal intervention -- suggesting it's not much of a threat… and the FBI isn't much of a counter-terrorism agency.

What the city's rejection says about President Trump's orders and directives is pretty damning. What it says about the FBI and its counter-terrorism efforts is even worse.

Filed Under: fbi, joint terrorism task force, police, privacy, san francisco, sfpd, surveillance

Complaint Board Finds Police Officers Violated Policy By Arresting Public Defender Who Demanded They Stop Questioning Her Clients

from the and-not-a-single-officer-was-disciplined dept

More than a year after San Francisco police officers arrested public defender Jami Tillotson for doing her job, the city's Office of Citizen Complaints has issued its report. It clears Tillotson of any wrongdoing and lays the blame solely at the feet of the San Francisco PD.

First, a quick refresher, since we're discussing something that happened last January: Tillotson's clients were approached by police officers in a courthouse hallway. The officers began asking her clients questions and photographing them for a photo array. She inserted herself between the officers and the men and demanded the officers stop questioning them/photographing them without running it through her. The officers responded in the only way they knew how: they arrested her for resisting arrest -- an arrest in which she cooperated fully with no amount of resistance. (It seems like circular reasoning, but "resisting arrest" is a catch-all for other sorts of interference with police work, rather than simply resisting an arrest.)

Thirteen months later, the review board has this to say about the officers' actions.

Police arrested Jami Tillotson without cause in January 2015 and detained her in an "unduly prolonged manner without justification," the Office of Citizen Complaints concluded.

The agency also determined that there was found a policy failure on two allegations: interfering with the right to counsel and conduct reflecting discredit on the department in the case of an officer who made inappropriate comments to the media following the incident.

The report was released by the public defender's office because presumably the SFPD had no plans to. In fact, the police chief -- despite dismissing charges and apologizing to Tillotson -- still insists his officers did nothing wrong.

[H]e stood by the actions of Sgt. Brian Stansbury and the other officers who arrested Tillotson. Stansbury "had reasonable suspicion to take the pictures” and a right to do so in a public area, the chief has said.

Maybe so, but the complaint review board says otherwise. his officers may have had the "reasonable suspicion" to take pictures, but they clearly didn't have the right to continue to do so after being told not to by an officer of the court (the public defender), much less prevent her from doing her job by arresting her.

Filed Under: jami tillotson, public defender, resisting arrest, san francisco, san francisco police, sfpd

Police Department Thinks 'Two Bullet Limit' Will Prevent Questionable Shootings

from the you-now-have-two-shots-to-de-escalate-the-situation dept

Two months ago, five San Francisco police officers surrounded a man armed with a knife and shot him 21 times. In response, the police department has introduced reforms meant to keep this sort of "interaction" to a minimum in the future. On the positive side, the reform efforts include training that will hopefully lead to fewer tense situations being resolved by officers emptying their weapons in the direction of their target.

Recruits must attend two-hour classes on de-escalation tactics, which teach how to deal with people in crisis, consider proportional force options, respect the sanctity of life and slow down incidents when possible.

This is undercut, however, by a new policy so completely asinine even I'm against it, despite my theoretical ownership of timcushinghatescops.com.

New pistol training guidelines require police recruits to hear the command "threat" before they fire at targets, to shoot only two rounds at a time, and to stop and reassess threats after every two shots.

In what is likely to be referred to as the "Barney Fife Rule," officers will only be allowed to shoot two bullets at a time, no matter what the situation is.

In some cases, this won't be enough bullets. In far too many cases, this will still be too many bullets. The push towards de-escalation is undermined by a permission slip that says two (2) bullets may be fired per officer (at minimum) even if the situation would be better served by the methods discussed in the mandatory training session officers slept through/mocked/interrupted with logical questions like "the hell is this two-bullet limit?"

In the case of Mario Woods -- who was shot 21 times by five officers -- he'd have only been killed by ten bullets. I suppose this is how the SFPD has chosen to interpret "less-lethal force." On the plus side, surrounding homes/citizens are far less likely to be the recipients of wayward bullets. And it will definitely make it very difficult for any officers pulling a "Brelo" to explain why they unloaded 49 bullets in 30 seconds at a suspect from point-blank range.

What the rule does, unfortunately, is make it more dangerous to be a police officer. In exchange, it does nearly nothing to lessen the danger of being a citizen. Lose-lose. The correct response would be to throw the entire weight of the PD's upper echelon behind de-escalation training.

A two-hour class officers are forced to attend won't make the message stick. What will make it stick are rules that make it explicitly clear that lethal force is a last resort -- something that should be used only very rarely. Any shooting should be accompanied by a raft of paperwork and a full investigation, overseen by an independent review team. The "shoot first and shoot often" mentality is only partly addressed by the two-bullet limit, which itself is illogical, unworkable and -- at worst -- a guaranteed way to avoid additional scrutiny for questionable shootings. After all, if only two bullets were used (and it only takes one to kill/maim someone), then it's a by-the-book shooting that warrants no further examination.

If nothing else, the fact that the policy can so readily be linked to an incompetent law enforcement officer depicted in a Golden Era TV show should have been enough to deter the SFPD from moving forward with the initiative. It should have limited itself to altering the mindset of its officers, rather than giving them a two-bullet "out" that undercuts the department's "will this do?" approach to de-escalation.

Filed Under: de-escalation, police brutality, police violence, san francisco, sfpd, training, two bullets

Cops Arrest Public Defender For Attempting To Do Her Job

from the you-have-too-many-rights,-brother.-let-me-ease-your-burden-by-taking-a-few. dept

Due process? In this "justice" system? It is to LOL.

A San Francisco deputy public defender was handcuffed and arrested at the Hall of Justice after she objected to city police officers questioning her client outside a courtroom…

Here's the video:


The two responses gathered by SFGate show the divide between those who represent the accused and those who haul inconvenient people away so they can continue their "work" unimpeded.

...an incident that her office called outrageous and police officials defended as appropriate.

The public defender, Jami Tillotson, was charged with the one-size-fits-all-who-give-us-any-lip crime of "resisting arrest." This charge doesn't work the way people expect it would, much to their anger, dismay and surprise. One would think that the police would need to be arresting you for a different crime and, after encountering some resistance, add "resisting arrest" to the charges. But no, apparently "resisting arrest" simply means not doing what cops say to do, no matter the legality of the request.

Tillotson was representing her client in a misdemeanor theft case. The police wanted to chat with him about an unrelated case in which he was "a person of interest." Presumably the photo-taking was part of building a lineup.

Now, the Sixth Amendment only guarantees the right to an attorney during criminal prosecution. But being a "person of interest" presents its own problems, what with it usually leading to questioning centered on gathering incriminating evidence -- either against the person being questioned or someone else on the list of suspects.

As an American citizen, you can always refuse to answer questions, especially when you're not in custody. Easier said than done, though, which is why the option of referring law enforcement to a lawyer is always on the table. Of course, police officers will try to avoid this possiblity, usually by framing the questioning as an innocuous, purely voluntary chat. They get irritated, though, when people realize this and tell them to talk to their lawyer or continually ask if they're free to go.

So, while Tillotson's attempt to defend her client from questioning related to a different crime may not have fallen under guaranteed Sixth Amendment protections, her willingness to protect her client from additional police questioning certainly falls within the bounds of what she (and her client) are legally allowed to do in a situation like this (i.e., "Talk to my lawyer.")

But the police weren't interested in speaking to a lawyer. They wanted to take pictures and ask questions without the "interference" of someone who knew how the system works. So, they arrested her for resisting arrest -- which, as the video shows, she was very clearly NOT DOING BEFORE, AFTER OR DURING THE ARREST.

Tillotson objected to the arrest, but she placed her hands behind her back and allowed police to cuff her. She never struggled or otherwise impeded the officers in their duty -- which was [WARNING: circular reasoning ahead] TO ARREST HER FOR RESISTING ARREST.

It's a mindbending, oxymoronic, ugly display of force, where might = right and anyone standing in the way of an investigation needs to GTFO. With cuffs.

Here's how Gideon at A Public Defender sums up this incident:

It’s one thing for officers to get their way by removing civilians from the scene who object to their searches and seizures, but it takes quite another level of totalitarianism and disregard for the law to arrest and make absent an officer of the court.

Even the law prof [Is it impossible to get quotes from actual lawyers with "in the trenches" experience? Are there really that few of them?] quoted by SFGate -- who believes Tillotson erred by inserting herself between police and their "person of interest" -- had this to say about the PD's actions.

[Hadar Aviram] added, “Regardless of where the constitutional disposition is, the attorney was in no way being violent or resisting arrest or being disruptive in any way. It’s extreme and it’s bad press for (the police). I’m surprised.”

I'm not. Many officers -- far too many -- simply don't care what the public thinks of them or their actions. The detective captured here on video is among that number.

Filed Under: arrest, jami tillotson, police, public defender, resisting arrest, san francisco, sfpd

Another Bogus Hit From A License Plate Reader Results In Another Citizen Surrounded By Cops With Guns Out

from the verification-to-be-performed-at-gunpoint dept

We recently covered a story about a lawyer who found himself approached by cops with guns drawn after an automatic license plate reader misread a single character on his plate as he drove by. The police did make an attempt to verify the plate but were stymied by heavy traffic. Unfortunately, it appears they decided to force the issue rather than let a potential car thief escape across the state line.

As I pointed out then, the increasing reliance on ALPRs, combined with the one-billion-plus records already in storage and the millions being collected every day, means the number of errors will only increase as time goes on -- even as the technology continues to improve. This person was lucky to escape with nothing more than an elevated heart rate. Others won't be so lucky... like Denise Green of San Francisco.

Green's civil rights lawsuit has just been reinstated by Ninth Circuit Court of Appeals, which overturned an earlier decision that granted summary judgment in favor of the San Francisco Police Department. The lower court found that the officers had made a "good faith, reasonable mistake" when they performed a felony stop of Green, which included being ordered out of her vehicle and onto the ground at gunpoint and held in cuffs for nearly 20 minutes while officers verified the plates and filled out paperwork.

The Appeals Court disagreed with this finding and the opinion details what the SFPD is supposed to do with ALPR "hits" and compares this to what was actually happened.

It is undisputed that the ALPR occasionally makes false “hits” by misreading license plate numbers and mismatching passing license plate numbers with those listed as wanted in the database. Because of the known flaws in the system, SFPD officers are trained that an ALPR hit does not automatically justify a vehicle stop, and SFPD directs its officers to verify the validity of the identified hit before executing a stop.

Patrol officers are instructed to take two steps to verify a hit before acting on an ALPR read. The first step is to visually confirm the license plate (to ensure that the vehicle actually bears the license plate number identified by the camera); the second step is to confirm with the system that the identified plate number has actually been reported as stolen or wanted.

The opinion notes that the SFPD, at the time of the incident, actually had no official verification policy in place that designated which officer(s) should perform this task. The expert testifying on behalf of the PD indicated that it would most likely be performed by the operator of the "camera car" (the vehicle with the ALPR) but was unable to point to any policy actually stating this.

So, there's one level of failure. It could be that all of the officers involved (at least four, according to court documents) thought someone else had handled the verification. That would be an "honest mistake," but that shouldn't allow the department to escape being held accountable for its lack of clear verification procedures.

On the night of March 30, 2009, Appellant Denise Green, a 47-year-old African-American woman with no criminal record, was driving her vehicle, a 1992 burgundy Lexus ES 300 with license plate number 5SOW350, on Mission Street in San Francisco. At approximately 11:15 PM, Green passed a police cruiser equipped with an ALPR operated by SFPD Officers Alberto Esparza and Robert Pedersen. When Green drove past Esparza and Pedersen’s camera car, the ALPR misread her license plate number and identified her plate as belonging to a stolen vehicle. It was late and dark outside, which rendered the ALPR photograph blurry and illegible. As a result, Officer Esparza could not read the ALPR photograph, nor could he get a direct visual of Green’s license plate.

Esparza was currently involved in an arrest, so he radioed in the hit. He identified the vehicle as a dark Lexus with the plate number 5SOW750, one digit off from Green's actual number. Dispatch ran the number and found that the plate belonged to a stolen gray GMC truck. The opinion notes that Esparza never bothered to inform dispatch that he had not verified the plate number himself and was working from a lousy ALPR photo.

Sergeant Kim was in the area and heard the radio traffic linking the plate (5SOW750) to a grey pickup and Esparza's observance of a dark Lexus. Kim had plenty of chances to clear up the misidentified plate, but he never did so.

Sergeant Kim saw that the first three numbers of Green’s license plate matched the plate read over the radio, but he did not visually identify all seven numbers on Green’s license plate. He also radioed Officer Esparza for a description of the vehicle, and Officer Esparza confirmed that the vehicle he saw was a dark burgundy Lexus. Sergeant Kim then decided to make a “high-risk” or “felony” stop...

Because Sergeant Kim believed that Green posed a risk, he waited for backup before pulling her over. While he waited, he followed her vehicle for a brief amount of time and, at one point, even stopped behind her at a red light. At no point while he was following or stopped behind Green’s vehicle did Sergeant Kim visually confirm the entirety of Green’s license plate number, even though nothing obscured his ability to do so. Furthermore, Sergeant Kim did not confirm Green’s plate number with dispatch, but he did hear Officer Esparza inquire whether the vehicle with the plate number 5SOW750 was stolen. Sergeant Kim admits that if he had read the full plate, he would not have had the reasonable suspicion to effect the stop.

But the stop was made and Green was approached by at least four officers with weapons drawn. She was restrained, cuffed and held while the SFPD officers finally got around to verifying the plate number on her vehicle.

The SFPD, while fighting Greene's Fourth Amendment claims, chose to spin Officer Esparza's lack of verbal confirmation that he had personally observed the plate (rather than the ALPR's lousy photo) as a credible, non-verbal assertion that could "reasonably" prompt other officers into action. Sergeant Kim took Esparza's lack of information to be an affirmation of his visual verification of Greene's plate, giving him the reasonable suspicion to effect the stop. The court approaches this argument from another angle, stating that Esparza's lack of confirmation should have been an indication that Kim needed to perform additional verification.

Because of the SFPD's lack of clear policy and the Officer Kim's willingness to believe Esparza's unstated claims, the officers effected a felony stop based on very little information and a whole lot of belief. Neither of these are enough to rise to the level of "reasonable suspicion," and certainly not enough to justify the amount of force deployed -- especially considering Greene was "physically unthreatening" and compliant during the whole stop.

Once again, we see law enforcement deploying technology without guidelines for usage. (We also see Sgt. Kim's reluctance to spoil a felony stop by actually reading a license plate that was directly in front of him for several minutes...) Many police departments tend to prefer unsupervised tech, an attitude that is increasingly resulting in policy being set by lawsuit. Abuse first, settle later, and lastly, institute guidelines. It's a hell of a way to "enforce law," when everyone's being policed but the police.

Filed Under: alpr, failure, license plate reader, police, san francisco, sfpd