This Tuesday, the Berkeley City Council established a groundbreaking local policy to protect civil liberties that have been eroded by the conscription of local police in federally coordinated law enforcement activities. The Council approved revisions to Berkeley Police Department policies on a range of controversial practices: surveillance, intelligence activities, mutual aid and memorandums of understanding with neighboring police agencies, and grants for military equipment. While creating protections for privacy and dissent, the Council postponed a vote on how the Berkeley Police Department will handle detainer requests from Immigration and Customs Enforcement (ICE).
The Coalition for a Safe Berkeley, which has led a police accountability campaign for over a year, applauded many of the changes. The American Civil Liberties Union (ACLU) of Northern California also attended the meeting and provided crucial insight into the policies. The Coalition and ACLU commended many of the changes, while emphasizing that they did not fully address community and legal concerns. Claudia Benegas of FMLN Berkeley, a Coalition member, noted:
"Unlike many who see policy in terms of wins or loses, I instinctively ask myself 'How will this affect my community?'"
After hearing comments and discussing them, the Council responded with improvements to most of the policies.
Included in the changes were ground-breaking limitations on so-called “Suspicious Activity Reports (SARS).” The new policy requires that police may submit SARs to the Northern California Regional Intelligence Center, a fusion center that collects and stores intelligence with few privacy or constitutional safeguards, only after establishing reasonable suspicion of criminal behavior.
By contrast, in other jurisdictions, SARs can be collected with no criminal predicate, for activities as innocuous and amorphous as taking photos that “lack artistic merit,” or even just taking notes. This information is then pumped into a network of federal databases, including the FBI’s notorious eGuardian. The ACLU strengthened the policy by recommending that:
“investigative authority to stop, frisk, request identification, or detain and question individuals is not broadened by the suspicious activity reporting policy or the Berkeley Police Department’s role in sharing suspicious activity reporting.”
The Council integrated this change into the final policy, breaking new ground as the first jurisdiction to specifically limit SARs and intelligence collection by local police. While concerns remain about participating in reporting and data sharing at all, the Berkley Council's vote is a model for other jurisdictions seeking ways to regain civil liberties lost in the last decade.
As part of its multi-faceted reform, Berkeley also adopted an updated policy on Mutual Aid. The new policy requires an annual report on cooperation with nearby police agencies, and also encourages BPD to neither request nor provide mutual aid to nearby police agencies absent a threat to public safety. The policy allows the police department significant discretion, but is a step towards needed transparency.
In addition, the Council's new criminal intelligence policy aimed to protect dissent in other ways. For instance, it increased the level of suspicion required to deploy plainclothes officers, and exempted non-violent civil disobedience from intelligence gathering activities.
The Council also approved a resolution to require Council review of all Urban Area Security Initiative grant requests. BPD unsuccessfully requested UASI funds to purchase an armored vehicle -- what local residents called a "tank" -- earlier this year. The new policy requires oversight for similar grants. The community questioned the City Manager’s suggestion that only contracts over $50,000 be disclosed, prompting the Council to instead require that all contracts be reviewed.
Although many positive changes were implemented, community members and the ACLU expressed compelling concerns about the jail detainer policy. In June, the Council directed the City Manager to review the Santa Clara policy and modify it as needed for Berkeley. The policy presented for voting did not mirror Santa Clara's, and no explanation was given for the differences.
The suggested policy omitted a prohibition on honoring holds for minors, as well as a requirement that the federal government reimburse the jail for the cost of carrying out any hold request. It also allowed BPD to comply with holds for individuals arrested, but not convicted of or charged with- violent or serious felony offenses. The Coalition speakers stressed to the Council that the proposed policy did not do justice to the immigrant community. The ACLU recommendation emphasized:
“Immigration enforcement based on arrests that do not lead to convictions . . . would leave in place an incentive for racial profiling, unfounded arrests, and overcharging, and would turn our Constitution’s promise of ‘innocent until proven guilty’ on its head."
The police chief agreed to remove this provision, but no agreement was reached on the issue of minors or reimbursement.
Ultimately, the Council agreed to vote on the detainer issue at their October 2nd meeting. As Claudia Banega said:
“For a moment, the legal arguments and public comments appeared to persuade the council. At other times, particularly when Chief Meehan spoke, the Council seemed puzzled. At this moment, it is impossible to determine how Council will vote on the Jail Detainers policy. Still, our position is that we demand (not ask, for we are no victims seeking assistance): the complete discontinuation of Secure Communities!"
At this point, community members must communicate their support for a total ban on BPD collaboration with detainer requests, and in particular for the protection of minors from deportation, in keeping with Berkeley’s Sanctuary principle.