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When can Berkeley police infiltrate political groups? What is the local police role when a government spy agency asks them for help? 

A Berkeley Police Review Commission subcommittee has begun looking at the issue in order to create policies that balance appropriate police behavior with maintaining civil rights. 

“People need to feel free to engage in and organize protests without the fear of being monitored,” said Mark Schlosberg, Police Practices Policy Director of the American Civil Liberties Union of Northern California. A former member of Berkeley’s PRC, Schlosberg is advising a PRC subcommittee which is writing the policy. 

Mike Sherman, PRC co-chair and member of the subcommittee, put the need to write the guidelines in a larger political context: They are necessary “in this era when civil and political constitutional rights are being systematically stripped away from the American citizen,” he said, adding, “We need to respond to [the erosion of civil liberties] the best we can to protect the citizens of Berkeley.”  

Schlosberg authored a 2006 ACLU report called “The State of Surveillance: Government Monitoring of Political Activity in Northern and Central California,” in which he describes a situation where such regulations were needed. 

On April 7, 2003 there was a peaceful protest against the Iraq war at the Port of Oakland targeting the role of two shipping companies protesters believed were transporting weapons to Iraq and facilitating the war. In the midst of a peaceful picket, police moved in with little warning, dispersing the picketers by shooting wooden dowels and shot-filled beanbags as protesters fled, according to the report.  

(Fifty protesters were hurt and Oakland was sued, eventually paying out some $2 million.) 

It turned out, according to the report, that the organizing group had been infiltrated by two Oakland police officers, who even helped plan the route of the march.  

“Infiltrating the protest would have been highly inappropriate in and of itself,” the report says. “Officers taking leadership roles and helping direct the protest is even more invasive….” 

Such abuse was more prevalent in the ‘60s and ‘70s, Schlosberg said, when there were no clear police guidelines.  

The Berkeley Police Department submitted draft guidelines to the subcommittee, which will work with police to modify some of their policy suggestions and eventually arrive at regulations acceptable to both police and PRC. Neither Sherman nor Schlosberg spoke directly to the police draft, which includes some of the following suggested guidelines: 

Information can be used to create an intelligence file when there is reasonable suspicion based on legally-obtained information that the subject may be involved “in definable criminal conduct and/or supports, encourages or otherwise aids definable criminal conduct.” 

Plainclothes officers can be used:  

• during investigations involving groups or individuals involved in First Amendment related activities “where there is reasonable suspicion to believe the individual or group involved was involved, is involved or is planning to be involved in criminal activity.” 

• “when crowds involved in First Amend-ment related activities are marching, only in order to determine the best response for police to safely address traffic-related issues.” 

Plainclothes officers shall not: 

• assume leadership roles in an organization or cause dissention within an organization. 

• attend meetings to obtain legally-privileged information such as reporters’ confidential sources, attorney-client communications or physician-patient communications. 

Police offered the following videotaping guidelines: “It is often difficult to ascertain whether criminal activity is going to break out during a protest, march or during other protected First Amendment-related activities. Additionally, due to the contentious nature of many of these events, there is often city liability involved. Videotaping these events serves to protect both the city and the various constituents involved….” 

The guidelines also say the department will cooperate with outside agencies “consistent with this policy.” 

Schlosberg offered some thoughts on appropriate police guidelines independent of the BPD draft. The use of undercover officers should be restricted to suspicion of criminal activity, he said. “It should be the last resort.” 

There should also be specific guidelines for the police to videotape demonstrators, including documenting criminal activity. “The video should be destroyed if it does not document evidence,” Schlosberg said, noting that not every demonstration should be videoed.