Editorials

This is not rocket science, folks.

“Innocent until proven guilty” is historically a central tenet of Anglo-American common law, of human rights law all over the world. It’s even been enunciated, recently and improbably, by Donald Trump on behalf of his pick for the Supreme Court job.

But it’s a rule for criminal prosecution, not a recipe for what should be on a resume for a job application. Supreme Court candidates, like anyone seeking a position, used to be required to demonstrate suitability for the work in question. That’s what the Republicans have been hoping Brett Kavanagh would be able to do, though contrary assertions by assaulted women have made his task more difficult. His naked display of assumed entitlement yesterday shows that even a batshit crazy drunk liar is presumed innocent if he went to the right prep school.

However, that’s not how things are supposed to work when a crime is suspected. In the criminal realm in this country, traditionally police agencies arrest suspected evil doers, prosecutors charge suspects with whatever violation of law seems provable, and only at the end of the process do juries convict and judges assign punishment.

This morning it seemed that if you’re Brett Kavanaugh you might skip all that nonsense. It appeared that police would have nothing to do with him and there would be no punishment. I hope that's wrong, though I still doubt that any charges will be filed.

That’s why the remarkable decision of the Berkeley Police, with or without the collusion of their civilian managers, to teach a lesson to self-described “anti-fascists” by publicizing their names and booking photos was deeply inappropriate. As of this writing most if not all of those arrested on August 5, mostly because they were carrying banned objects, have not been charged with anything.  

As reported in the East Bay Express by Darwin Bond-Graham, “Berkeley officials devised a plan to use social media to ‘create a counternarrative’ that the police were, in fact, confiscating weapons and making arrests. One way they attempted to spread this counter-narrative was by rapidly tweeting out the mug shots, names, and cities of residence of people arrested at the rallies.” 

Bond-Graham quoted a Berkeley Police Department document which boasted of numerous social media references to the arrests. 

" ‘The message had a deep impact on the narrative about the City's ability to enforce the rule of law,’ city officials concluded in the policy document. ‘Almost immediately, the narrative about BPD and the City changed online and in the media .’ " 

What? Since when has it been the job of police agencies and their management allies to create PR campaigns on topics of their choice? And who said they could use arrested but not charged citizens as bad examples to discourage future activities? 

Councilmember Kate Harrison, along with Councilmember Davila one of the authors of a proposal on last Tuesday’s City Council Agenda to rein in this inappropriate behavior, noted at the meeting that her first job out of college was working with the ACLU to analyse materials from the infamous Cointelpro program, which was a huge FBI effort in the ‘60s and ‘70s to discredit and disrupt domestic dissent of all kinds, including civil rights and anti-war activities.  

“Creating a counter narrative” was a core Cointelpro goal. Sixties nostalgia to the contrary notwithstanding, we don’t want to revive Cointelpro in Berkeley in 2018. 

In the City Council’s discussion of the BPD scheme earlier this week, a lot of emphasis was placed on the use of trendy social media to distribute police propaganda, but that’s just a part of the problem. No matter how it’s distributed, publicizing people’s personal information—often called doxing—can be used to harm them in a variety of media. The technique has become newly popular as it works at internet speed.  

Here at the slow-news online Planet I got the names and photos as part of an old-school emailed press release. I pretty much ignored them as inappropriate. I did notice that one of the arrested was a young member of a family I’ve known and respected for more than 50 years, and that alone made me suspicious of the police accusations. 

There are only a couple of good reasons for publishing names and pictures of people who haven’t been charged. One is to warn the public about imminent danger when a violent suspect is at large. The other is to make sure that an arrested individual’s family and friends can find out what’s happened to them. 

The arrests under discussion were products of a questionable council decision to grant the city manager unilateral authority to ban anything that could conceivably be used as a weapon from the protest environs. Covering the face is also verboten under this policy.  

In practice, what this meant was that one of the arrestees was a 70-year-old woman who was carrying a banner with what she described on Tuesday as cardboard sticks to hold it with. Others reported similar innocuous-seeming objects as the contraband which caused them to be arrested. They said they were arrested even after the police had confiscated the supposedly dangerous object.  

Mayor Arreguin and Councilmember Hahn collaborated on a watered-down substitute motion of the Harrison-Davila proposal which limited the restriction on police doxing to “First Amendment” activities, showing that they’d completely missed the point. The tone was sanctimonious, especially after Lori Droste insisted on an amendment disavowing violence. 

Councilmember Bartlett warned that deciding what constitutes a First Amendment event would inevitably be subjective. 

“Inherently”, he pointed out to audience applause, “there is an erosion of [the principle] that people are innocent until proven guilty. … I’ve never understood why we publish people's photos that are not guilty, not even mentioning the racial elements that are always at play…Without even going too deep in that, we know that situation.” 

Doxing arrestees before they’ve been charged or convicted risks—no, just about guarantees—unfair punishment of citizens presumed to be innocent. And if they’re Black, their odds of being arrested increase dramatically, as Councilmembers Bartlett and Davila, both with personal experience of Existing While Black, realize, so they supported the Harrison proposal.  

I myself, a White woman over 70, am currently carrying a nice metal cane, courtesy of Walgreen’s. It’s more than conceivable that if I wandered into a demonstration with my cane I’d risk being arrested and doxed, even if I cared nothing about what was being protested. 

I might even be trying to report on said protest without participating in it. I did indeed spend some time talking to white supremacists at a couple of earlier events before I banged up my knee and acquired the cane. White Privilege will probably protect me in the end (and I did go to an appropriate prep school) but my Black family and friends are more at risk. 

Berkeley Police have plenty to do without deciding what’s a First Amendment Event. They are not tasked with creating counter-narratives on social media, nor should they be. 

If the City Manager or the Chief of Police participated in this Cointelpro-lite folly, the Berkeley City Council should have reprimanded them. And along with the five councilmembers who voted for the weak-as-water substitute motion, they should recall their high school civics class (do they still have them anymore?) to remind themselves that in our system it’s conviction first and punishment afterwards, not the other way around.