ACLU

Civil rights advocates say S-Comm reforms are spin, part of bigger FBI biometric tracking plan

Mary Magee
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Civil rights advocates say S-Comm reforms are spin, part of bigger FBI biometric tracking plan

In face of mounting criticism nationwide, the U.S. Department of Homeland Security announced today changes to its Secure Communities (S-Comm) deportation program. These changes include protections for domestic violence victims, and immigrants who are pursuing legitimate civil liberties protections. They give more discretion to ICE prosecutors, create a new detainer form that stipulates in multiple languages that arrestees cannot be detained under an ICE hold for more than 48 hours, except on holiday weekends. The form also requires local law enforcement to provide arrestees with a copy, which has a number to call if they believe their civil rights have been violated. The agency also said it will provide civil rights training related to its S-Comm program at the state and local level.

Immigrant and civil rights advocates said the announcement shows that the administration acknowledges that there are serious problems with S-Comm’s design and implementation. But they charged that the announced reforms fall far short of the S-Comm moratorium that an increasing number of advocates and lawmakers, including California Assemblymember Tom Ammiano, have demanded.

And some advocates expressed concern that the feds’ insistence on expanding S-Comm, in which fingerprints taken by local law enforcement agencies are automatically shared with federal and international databases, is proof that the program is the first step towards rolling out a much larger program called the Next Generation Identification (NGI) initiative.

Under the NGI, the FBI plans to phase-in the deployment of a host of new biometric interoperability capabilities to state and local law enforcement agencies within the next five years. And NGI likely won’t be limited to non-citizens and undocumented immigrants, suggesting that US citizens charged with a crime will also find that once their fingerprints are taken, law enforcement agencies will immediately compile a huge and internationally interconnected dossier on them, regardless of whether they are innocent of the charges.

Civil rights advocates also worry that local enforcement agencies’ participation in S-Comm will become inevitable because S-Comm is simply the first of a number of biometric interoperability systems being brought online by the NGI.
In other words, S-Comm is just the first of many additional information systems that are being made available to local law enforcement agencies to fully and accurately identify suspects in their custody.

And, according to the FBI/CJIS’s own documents, the feds have adopted a three-part strategy to deal with jurisdictions that do not wish to participate:
1.    Deploy S-Comm to as many places as possible in the surrounding locale, creating a “ring of interoperability” around the resistant site.
2.    Deploy S-Comm selectively to state correctional system facilities, permitting identification of Level 1 offenders who may have been arrested and sentenced in the non-participating jurisdiction,
3.    Ensure that the jurisdiction understands that non-participation does not equate to non-deployment.
In other words, though a local law enforcement agency is technically free to shut off, or ignore, the receipt of records related to the fed’s fingerprint-matching capabilities, the feds are already warning local law enforcement agencies that local officers may find themselves “deprived of substantive information relating to an arrested subject’s true identity, place of origin, and other pertinent data of significant law enforcement value.”

Ammiano, who is the author of California’s TRUST Act, which would allow local governments to opt out of S-Comm, said: “Today’s announcement by ICE is simply window dressing. How many more innocent people have to be swept up by the ironically named Secure Communities program before the Obama administration will change course? Talking about the need for comprehensive immigration reform is not an excuse for continuing with a flawed, unjust program that is having tragic consequences for communities across the country. It is time for a moratorium on S-Comm pending a real review of the program not just PR spin from ICE.”

Professor Bill Ong Hing, immigration law expert at the University of San Francisco, stated, “The fact is, under our Constitution, immigration is a federal responsibility. Neither a state like Arizona, nor the federal government itself, can force local governments to act as immigration agents. Such measures compound the injustices of our deeply broken immigration system – and public safety and local resources are among the first casualties.”

And the Asian Law Caucus, the ACLU of California, the Coalition for Humane Immigrant Rights of Los Angeles, the California Immigrant Policy Center, and the National Day Laborer Organizing Network released the following joint statement:  “We are deeply disappointed by the inadequacy of the Administration’s response to the mounting body of evidence that the ‘Secure’ Communities program is damaging public safety and ensnaring community members. The painful stories of domestic violence victims and other innocent community members facing deportation thanks to S-Comm underscore that the program has simply gone off the rails. While today’s announcement acknowledges that problems exist with the program, the measures outlined by the Administration are a far cry from workable solutions these problems. To announce “reform” before review is an exercise in politics, not policy. The administration should suspend the program and wait for the Inspector General report in order to develop fair and transparent policies.” 

“Before vital relationships between local law enforcement and immigrant communities are furthered damaged, before more domestic violence victims, street vendors, family members, and workers who are merely striving for the American dream are swept up for deportation, S-Comm must be reigned in,” the coalition continued. “For the sake of public safety and transparency, we need real solutions. We strongly support California’s TRUST Act, which sets safeguards the federal government has failed to implement and allows local governments out of S-Comm, and we continue to call for a national moratorium on this fundamentally flawed program.”

In recent weeks, Illinois, New York, and Massachusetts, have either pulled out or refused participation in the program while numerous local governments have sought a way out of a deportation dragnet that harms public safety and has operated with no transparency or local oversight. And Ammiano’s TRUST Act, which also sets basic standards for those jurisdictions that do want to participate in S-Comm passed the state Assembly in May and the Senate Public Safety Committee this week.

During today’s press conference, ICE Director John Morton told reporters that “it makes sense to prioritize resources. We don’t have enough resources to remove everyone who is here unlawfully.”

But when the Guardian asked if the reforms address the community criticisms that S-Comm was rolled out as a way to catch serious criminals, but has been largely used to deport non-felons, Morton maintained the S-Comm has always focused on serious criminal offenders, but was never limited to that.
“We remove felony offenders at a higher rate than are convicted in the general population,” he stated. ‘But federal law does not provide that you can come here unlawfully and then commit crimes other than violent crimes.”

True, but local law enforcement agencies have repeatedly observed that you break vital trust with immigrant communities if they believe that contact with police, including  being arrested for crimes they did not actually commit, or arrests for very low-level misdemeanors, will lead to deportation.

“This feels like a non-announcement, and it’s far from reform,” said B, Loewe of the National Day Laborers Organizing Network. “You don’t put a collar around a snake and call it a pet.”

And SF Police Commissioner Angela Chan, a staff attorney at the Asian Law Caucus, said the reason ICE and the FBI, “are so crazy for S-Comm is because it’s the first step in a much bigger loop that will include citizens and non-citizens alike.”

NDLON and the Asian Law Caucus are part of the coalition that is calling on the Obama administration to publicly oppose and terminate all programs that create partnerships between state and local law enforcement and the Department of Homeland Security; halt the development of the vast data gathering infrastructure that houses S-Comm, and inform the public of the current scope and purpose of its data collection and dissemination activities; and allow state and local jurisdictions to opt-out of S-Comm.

After today’s press conference, ICE issued a press release stating that through April 30, 2011, more than 77,000 immigrants convicted of crimes, including more than 28,000 convicted of aggravated felony (Level 1) offenses like murder, rape and the sexual abuse of children were removed from the U.S. after identification through S-Comm.

“These removals significantly contributed to a 71 percent increase in the overall percentage of convicted criminals removed by ICE, with 81,000 more criminal removals in FY 2010 than in FY 2008,” ICE stated. “As a result of the increased focus on criminals, this period also included a 23% reduction or 57,000 fewer non-criminal removals.

ICE also observed that the agency currently receives an annual congressional appropriation that is only sufficient to remove a limited number of the more than 10 million individuals estimated to be in the U.S. unlawfully. “As S-Comm is continuing to grow each year, and is currently on track to be implemented nationwide by 2013, refining the program will enable ICE to focus its limited resources on the most serious criminals across the country,” ICE stated.

ICE further noted that it is creating a new advisory committee that will advise ICE on ways to improve S-Comm, including recommending on how to best focus on individuals who pose a true public safety or national security threat.  This panel will be composed of chiefs of police, sheriffs, state and local prosecutors, court officials, ICE agents from the field and community and immigration advocates.  The first report of this advisory committee will be delivered to the Director of ICE within 45 days.

ICE Director Morton also issued a new memo that directs the exercise of prosecutorial discretion to ensure that victims of and witnesses to crimes are properly protected. The memo clarifies that the exercise of discretion is inappropriate in cases involving threats to public safety, national security and other agency priorities.

And ICE and the DHS Office for Civil Rights and Civil Liberties (CRCL) have created an ongoing quarterly statistical review of the program to examine data for each jurisdiction where S-Comm is activated to identify effectiveness and any indications of potentially improper use of the program. “Statistical outliers in local jurisdictions will be subject to an in-depth analysis and DHS and ICE will take appropriate steps to resolve any issues,” ICE stated.
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OPINION: The “people’s seat” on the Police Commission

Zelda Bronstein
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OPINION: The “people’s seat” on the Police Commission

Editor’s note: School Board member Kim-Shree Maufas submitted this opinion piece on the upcoming Police Commission appointment.


On Friday, October 11, 2002, what began as an early morning school fight turned into a uniformed police officer-driven melee against students and teachers at Thurgoom Marshall High School. A total of 126 cops (some in SWAT/Riot gear) and sheriff’s deputites (tactical training was nearby) with firefighter and helicopter air support occupied the campus into the late afternoon.


That was so awful — but the real crime and shame for San Francisco was the subsequent behavior of the then Police Commission, which ignored hundreds of requests (delivered in writing and in person at commission meetings) for accountability, transparency, and reform to address ongoing police misconduct and bad practices so that San Francisco and its youth could actually feel safe and secure – not just from the criminals but from the city’s police force. 


I recall that one woman, who lived in Pacific Heights, asking the commission to “deal with what happened at that high school across town because we all want to know what happened.” 


After attending Police Commission meeting after Police Commission meeting with staff from the Ella Baker Center, Coleman Advocates for Youth and their Families and the ACLU of Northern California, the only response that I ever heard from that commission about the incident was: “We handle things in our own time.” 


These painful memories had me in tears as I walked home after attending the recent Board of Supervisor’s Rules Committee meeting on June 2, 2011, where I watched the recommendation for the board’s appointment to the commission go forward.


Back in October 2002, I was the Parent Teacher Student Association president at Marshall, my daughter was a student, and I suddenly thrust forward to a public podium over and over again to demand justice for our families … goodbye fundraising and bake sales.


My social justice journey to the Board of Education is closely tied to the 2003 Proposition H, the police reform measure that gave people a voice for reform and accountability by expanding the  Police Commission from five to seven, three to be selected by the Board of Supervisors and four by the mayor.  San Franciscans slapped the old Police Commission squarely in the face, screaming that the people MUST have a VOICE.


Because of what my family and countless others have been through and died for, I will forever consider the seats appoinnted by the board as “the People’s Seats for the People’s Voice,” meaning that those seats are for people who openly fight on behalf of disenfranchised community members, for people who stand as unashamed/outspoken advocates for common sense police policies and practices — and as seats for those who don’t get mayoral appointments because they’re a part of the in crowd.


On June 14, 2011, the entire Board of Supervisors will vote for the Police Commission appointment — and it doesn’t have to be the recommendation from the Rules Committee. The supervisors can take a different position – they can stand with the people on this one.


With all due serious respect to the other applicants, this opening on the Police Commission belongs to David Waggoner, who represents that “People’s Voice for the People’s Seat” — and I believe all those voters who reformed the commission in 2003 would say so too.


 

FBI spying will be an issue for new Police Commissioner

Mary Magee
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When Police Chief Greg Suhr got sworn in at City Hall a month ago, reporters each got to ask one question during a hastily convened media roundtable inside Mayor Ed Lee’s office. And since the Guardian’s story about the FBI’s secret agreement with the San Francisco Police Department had just hit the streets, I asked the new Chief, if he would welcome clarification around the duties of SFPD officers assigned to the FBI’s Joint Terrorism Taskforce.

Chief Suhr said he believed an examination of the wording of the FBI’s most recent memorandum of understanding (MOU) with the department was already under way. “I believe that the MOU is being revisited,” Suhr said. “I have not been a part of that, but again I think we have a real good policy with regard to our intelligence gathering and that does supercede any ask of any other agency. The officers are bound by policies and procedures. And that policy was well thought out with tremendous community and group input years and years ago, from situations that have not since repeated themselves. I think a lot of people back then couldn’t believe they happened in the first place, but I think measures were well thought out and put in place to make sure we don’t have a problem again.”

Fast forward three weeks, and Suhr found himself in the hot seat at a May 18 joint meeting of the Human Rights Commission and the Police Commission, where commissioners got an update about the Police Department’s response to community concerns about surveillance, racial and religious profiling of Arab, Middle Eastern, Muslim, and South Asian Communities and the potential reactivation of SFPD Intelligence Gathering.

After Suhr introduced his new Command Staff—and stressed their great diversity–Police Commission President Thomas Mazzucco, who was Suhr’s football coach in high school, tried to assure folks that the Police Commission, the Human Rights Commission, the FBI, the SFPD, the American Civil Liberties Union and the Asian Law Caucus had already addressed the community’s intelligence-gathering concerns, in part through a bureau order that Chief Suhr then introduced during the hearing, in which Suhr clarified that SFPD policies trump FBI guidelines every time.

And Mazzucco,  a former Assistant U.S. Attorney for the Northern District of California and a former Assistant District Attorney for San Francisco, before Mayor Gavin Newsom appointed him to the Commission in 2008, noted that the community’s concerns were based on allegations. not factual findings.

But his comments got folks wondering whether Mazzucco’s prior involvement with the feds left him with a blind spot that is preventing the Police Commission from dealing with the issue in a timely and effective manner, particularly since Commissioner Jim Hammer’s term has expired, and the rest of the Commission is waiting for the Board’s Rules Committee to decide between nominating David Waggoner, L. Julius Turman, Phillip Hogan or Vanessa Jackson as the next new Police Commissioner.

For, as members of the public observed during the meeting, if the Police Commission President himself expresses no outrage at finding that the Commission’s policies have been undercut for the past four years by secret agreements between SFPD and the FBI, how can San Francisco claim to have a credible system of civilian oversight?

Instead, they felt that Mazzucco seemed more concerned about defending federal practices and officials, who were unwilling to show up at the May 18 hearing, than worrying about the role and authority of the civilian oversight body he now represents. And attorneys with the ACLU and the Asian Law Caucus noted that though Suhr characterized his new order as being based on the Portland resolution and a prior proposal from community advocates, they believe Suhr’s approach can only work with the written consent of the FBI, (which SFPD doesn’t have) if the FBI’s 2007 contract is left in place.

“That’s why there is a need for a transition to a non-MOU, Portland-style resolution,” ACLU’s John Crew told the Guardian, noting that ACLU’s willingness to work collaboratively with the commissioners and the new Chief should not be confused with a willingness on ACLU’s part to roll over and accept an approach that is based on wishful thinking rather than the realities of the MOU that’s still in place.

During the May 18 joint hearing, Chief Suhr acknowledged “the validity of the perceptions raised by the community,” even as he insisted that SFPD has “very strict policies” in place to ensure appropriate oversight for investigation- involving activities.

Suhr summarized the history of those policies, including ACLU’s John Crew’s involvement in creating Department General Order (DGO) 8.10, which establishes that there must be reasonable suspicion before SFPD intelligence gathering can occur.

Suhr noted that SFPD joined FBI’s Joint Terrorism Taskforce (JTTF) after the September 11, 2001 attacks, and SFPD officers assigned to the JTTF subsequently came under control of the Department of Homeland Security unit, but starting now, they are back under SFPD’s special investigations.

“I gave the order today that JTTF will be moved back under SFPD’s special investigation unit,” Suhr said. “They will have the security clearance necessary to oversee the activities. The members are required to comply with all department policies, even if they can conflict with FBI policies. Simply said, San Francisco policies, procedures, laws, and statute trump any federal policy or procedure. Our officers are bound by those.”

Suhr said that to ensure everyone is clear about the chain of command, he’d drafted his May 18 bureau order. “It essentially turns back the clock and emphasizes that officers are responsible for our policies and procedures first, and our officers are bound to identify themselves as San Francisco police officers,” Suhr said, further noting that he’d be happy to further amend his new order as needed.

And Mazzucco noted that SFPD has absolutely no jurisdiction whatsoever over the Transportation Security Administration’s activities at the airport.

But while Human Rights Commission Chair Michael Sweet said Suhr’s new bureau order,  “goes a long way toward helping to alleviate some of the concerns,” he and many commissioners noted that this was their first chance to read the order. And Sweet said he saw the May 18 joint hearing “as by no means the end of the discussion.”

HRC director Theresa Sparks, who was on the Police Commission when the FBI drafted its 2007 JTTF MOU, noted that the issue is not whether we should opt out, but what we can do to ensure that officers involved in activities have “strong civilian oversight of their activities and report activities through the established civilian oversight mechanisms and procedures defined in DGO 8.10.”

” Our approach to achieve this objective is to publish internal directives ensuring our officers only participate in activities that meet our local standards of reasonable suspicion,” Sparks stated, claiming that Suhr’s order will “ give the city control over misconduct charges and allegations of misconduct charges.”

Sparks noted that the May 18 hearing was a status report about “alleged violations by the FBI and SFPD, as well as airport police,” and that the HRC “did no independent investigation” to verify these allegations.

Sparks added that HRC and the Immigrant Rights Commission has a tentative agreement to move forward with townhall meetings to address community concerns, and will encourage the Board to appoint a special prosecutor to determine if the prosecution of terrorism cases is valid and fair, and discuss the need for an Ombudsman at the airport. And she talked about the need for SFPD to establish legal safeguards, mechanisms for greater transparency and oversight, and conduct more detailed yearly audits.

“Tonight was a real dialogue about the issues,” Sparks said, further noting that civilian oversight of local JTTFs is also a popular discussion in Oakland and in Portland, Oregon, which has decided to rejoin its local JTTF after opting out in March 2005. But she didn’t mention that Portland had entered into a resolution with the FBI, instead of signing a new MOU with the feds.

That explanation was left to Veena Dubal of the Asian Law Caucus and ACLU’s Crew– in between explaining why they believe Suhr’s Bureau Order isn’t enough. “The good news is that we all collectively agree that SFPD policies should apply to SFPD officers assigned to the JTTF,” Dubal said. “The bad news is that the recently released MOU, which was secret for four years, doesn’t reflect our collective desires.”

Dubal stated that the FBI won’t amend its 2007 MOU with the SFPD.
“And that is why the Chief issued the bureau order,” Dubal stated, claiming that the FBI Special Agent in Charge of JTTF involvement recently told ALC and the ACLU that the FBI will continue to block key parts of local policy central to accountability and oversight.

“But there’s a solution and it doesn’t necessitate a divorce from the joint terrorism task force,” Dubal continued, noting that there are now two ways for local law enforcement officers to participate in JTTFs: an MOU, in which SFPD resources are put into the hands of FBI with relatively no local control, as in the SFPD’s 2007 agreement with the FBI. Or via a resolution which the federal government just approved in Portland, which allows participation in the JTTF, but provides much better protection for civil rights and gives the police department and the police commission more control of the relationship.

Dubal noted that in the decade since 9/11, the FBI has expanded its intelligence powers, and its agents are now allowed to conduct intelligence without a factual connection to criminal activity.

“Given these massive shifts in FBI activity, the question is, what should the relationship between the SFPD and the FBI look like?” Dubal said.

“Unlike the FBI, the SFPD is not a national security organization, “ Dubal continued, noting that when SFPD signed up to work with the JTTF under an MOU that preserved local control and policies, “it wasn’t assuming that some of its officers, paid for by San Francisco taxpayers, could be transformed into national security agents.”

”The SFPD signed on without telling anyone, not even the police commission,” Dubal said, noting that SFPD cannot afford to participate in these practices. “We need community trust to keep all of our communities safe.”

ACLU’s Crew noted that the FBI came to the SFPD in 2007 with a new MOU. “And perhaps inadvertently, there was no review by the City Attorney, and no notice to the police commission,” Crew said. “And it’s a drastically different MOU, unfortunately.”

“Now, we didn’t know about that MOU because it was kept secret at the insistence of the FBI for four years,” Crew continued, further noting that when ACLU and ALC met with the SFPD in 2010, they were suddenly told that the police department couldn’t talk about these issues without FBI permission.

“That set off a warning sign,” Crew observed, noting that in early April, when the ACLU and ALC finally got the MOU released, their worst suspicions were confirmed.

“There was no public discussion of transforming the SFPD into a national intelligence gathering association,” Dubal said. “The problem is that the FBI changed the deal, and the SFPD signed it, without telling anyone.”

Dubal noted stark differences between the FBI’s 2002 MOU and the one the SFPD signed in 2007, along with stark changes to FBI guidelines that occurred in 2008, in the dying days of the Bush administration, and that now allow a new assessment category, that does not require reasonable suspicion and has been criticized by civil liberties groups.

And according to Crew, the FBI’s new MOU “puts at risk the very concept of civilian control.” As Crew noted, between the mid 1990s, when the SFPD developed DGO 8.10, which governs its officers’ intelligence-gathering policies and procedures, and 2007, when the FBI prepared a new JTTF MOU, there’d been little controversy over intelligence-gathering in San Francisco.

 “And then, perhaps inadvertently, the SFPD signed that MOU and it was drastically different and kept secret at the insistence of the FBI for four years,” Crew observed.

And in 2010, the SFPD suddenly said it couldn’t talk about the issue without the permission of the FBI, Crew added, noting that “Unnecessary secrecy breeds suspicion.”

“We don’t think the Bureau Order is sufficient,” Crew concluded. “This is an issue that has to be dealt with at the Police Commission level.”

Crew noted that the Portland City Council chose not to enter into an MOU, “specifically because it restricts the ability to provide local control and local oversight. “

“So, we are not saying opt out, but we are saying there needs to be a transition to a resolution that maintains local control over the assignment of officers and provides all these elements of civilian oversight,” Crew continued.

He claimed that the federal government says a resolution is possible, as long as you’re not doing it under an MOU.
“So the question is, if that level of protection is available now to the people in Oregon, why would San Francisco not take the same deal?” Crew said. “All you have to do is give 60 days’ notice to the FBI that are you going to start this transition to a resolution. That notice period allows the FBI to have any comments or express any concerns they want, I think it’s very regrettable that they chose not to participate tonight and unfortunately I think it says something in terms of how seriously they take these concerns.”

Crew concluded that such a transition would be a win-win situation.

”If we went to a resolution that merely asserted local policy, then they could keep doing exactly what they’re doing now,” Crew said. “On the other hand, if it turns out that there’s activities SFPD is involved in that they shouldn’t be involved in, don’t we want those stopped?

“The one comment I will make of the bureau of general order is that I’m thankful to hear it’s a work in progress,” Crew added, noting that ACLU and ALC “don’t think a bureau order is sufficient. That’s because it can be changed at any time without the notice of the police commission, without a public hearing.”

But Mazzucco disagrees with ACLU and ALC’s claims that FBI intelligence-gathering guidelines have been relaxed since 2008.
 “There are no random assessments, and there has to be a predicate of a criminal violation,” Mazzucco told commissioners, noting that ” with honorable people like Bob Mueller” (Mazzucco’s former boss) “running the FBI, there should be a level of confidence that there will not be any violations.

And in a follow-up call, Mazzucco told the Guardian that he thought Suhr’s bureau order clarifies that “local officers follow SFPD rules.”

Mazzucco also suggested that Police Commission oversight, “is more over policy and procedures and less about operations,” by way of explaining how the SFPD’s 2007 MOU  with the FBI never came before the Commission.
“But I suggested that we see the next MOU in this area,” Mazzucco added.

And he proposed “a simple solution” moving forward, namely transparency and educating the public,” about the JTTF.

“SFPD is probably the most diverse police department in the country,” Mazzucco said. “And there is civilian oversight. We won’t let anything untoward happen.”

And he praised the new US Attorney for Northern California Melinda Haag, and FBI Special Agent Stephanie Douglas for their participation in recent meetings with city officials about the community’s intelligence-gathering concerns.
“The good news is that nothing controversial is going on here,” he said, noting that out of the broad array of community advocates who showed up at the May 18 joint hearing, there were maybe five citizens who spoke about encounters with the FBI, and only one from the Bay Area. ”My goal is to make everyone feel comfortable,” he said.
 
But HRC Chair Sweet acknowledged at the May 18 joint hearing that it was “very difficult” to know from a first reading of Suhr’s Bureau Order if it fully addressed the community’s intelligence-gathering concerns. “I think a great deal of discussion really needs to take place on that particular issue,” he said.

And HRC Vice Chair Douglas Chan dug into the details, starting with the apparently now classified question of how many SFPD officers are currently assigned as deputized FBI officers.
”We don’t generally discuss the specific numbers, but I will tell that you we’ve never had less than two officers assigned to the JTTF,” Suhr replied.

And he told Chan more work can be done on the Bureau Order. 
“The intent of the order was to align it with DGO 8.10 and to close any gap that was in the 2007 MOU,” Suhr said.

Chan asked if SFPD has in mind “ a framework or an approach” if a case arises, wherein an officer, in order to defend himself against an allegation of misconduct, or a citizen seeking to discover facts and other evidence relating to an incident, bumps up against this need to know and the fact that apparently JTTF activities are, “under a federal classified information.”

“I think that would probably need to be flushed out in subsequent drafts of the bureau order,” Suhr replied. “I think we could turn the clock back to where the officers are ultimately accountable to the police department, the commission and the citizens of San Francisco.  I think that the most recent MOU, as has been discussed, there was somehow a mishap where it was not reviewed.”

 And while Police Commissioner Petra DeJesus said Suhr’s Bureau Order was, “a step in the right direction,” she added that she felt it needs to be amended to clarify how the Police Commission would truly have oversight of SFPD officers’ JTTF activities.
‘Even though a commissioner is going to look at what’s been done monthly, that commissioner doesn’t have the clearance, and we’d only see a sanitized version of the events,” she observed. “And we need to look at the auditing report part of it.”
 
 And Police Commissioner R. James Slaughter said he thought everyone was “frustrated that the FBI is not here to answer some of these questions.” I think that would help us.”

And now, with four candidates vying to replace Jim Marshall as the seventh Police Commissioner, it’s not clear what the Police Commission will do beyond Suhr’s Bureau Order. But clearly that question now becomes part of the commission selection process.

And so here is the basic direction of Suhr’s new Bureau Order:

 
Under Suhr’s new Bureau Order (not to be confused with an FBI order) SFPD officers assigned to the FBI’s terrorism task force must abide by local policies protecting civil rights rather than looser federal rules.

 “It is the responsibility of the Federal Bureau of Investigations (FBI) to prevent, investigate and respond to terrorism in the United States.” Suhr’s May 18 order states. “The FBI has established local Joint Terrorism Task Forces (JTTF) to share resources and coordinate among federal, state, tribal and local governments. It is the policy of the [San Francisco Police] Department to help prevent and investigate acts of terrorism, protect civil rights and civil libertes under United States and California law, and promote San Francisco as an open and inclusive community by participating in the FBI Joint Terrorism Task Force.”

“The Chief may assign SFPD offices to work on JTTF investigations that comply with the requirements stated above regardless of whether or not the investigation is based in the City & County of San Francisco,” Suhr’s order, which was issued by Deputy Chief Kevin Cashman, continued.

 “SFPD offices shall work with the JTTF only on investigations of suspected terrorism that have a criminal nexus,” Suhr’s Bureau Order concludes. “In situations where the statutory law of California is more restrictive of law enforcement than comparable federal law, the investigative methods employed by SFPD officers working on JTTF investigations shall conform to the requirements of such California statutes. While cross-designated and deputized as federal officers for the purposes of their JTTF assignments, when not operating in a covert or undercover capacity, SFPD officers shall always identify themselves to members of the public as SFPD officers.”

Or as Suhr told commissioners May 18, “Our officers will follow our department orders.”
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The death drug dealers

Maria Poblet
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0
The death drug dealers

tredmond@sfbg.com

The federal Drug Enforcement Administration is conducting a multistate criminal investigation into the actions that prison systems have taken to obtain a death drug no longer produced in the United States, documents obtained by the Guardian indicate.

The documents don’t reveal the specific targets of the investigation, but federal agents have seized drug shipments in Alabama, Georgia, Kentucky, South Carolina, and Tennessee and are apparently also looking into drug procurement policies in California, Arkansas, Alaska, and Arizona.

The states have been scrambling to obtain sodium thiopental, a drug used in executions, after the lone American manufacturer, Hospira Corp., stopped producing it last year.

Georgia and Arizona both received shipments of the drug from Dream Pharma, a British wholesaler that, according to the Associated Press, “shares a building with a driving school in a gritty London neighborhood.”

In October 2010, the California Department of Corrections and Rehabilitation sent agents on a secret mission to get some of Arizona’s supply. The agents drove under cover of night to the Arizona state prison in Florence, where at midnight the warden handed them 12 grams of thiopental, enough for an execution.

The state later ordered 521 grams — far more than the state could possibly use in the next few years — from Archimedes Pharma, also a British supplier.

Several other states, including Georgia, obtained the drugs from a different British supplier, Link Pharmaceuticals. According to the Associated Press, Nebraska’s supply was imported from India.

Most of the states imported the drugs without the proper DEA paperwork, a federal crime, the documents show.

Sodium thiopental is part of the three-drug mix used for lethal injections in most states that allow capital punishment. It renders the subject unconscious before the other drugs stop the heart and lungs from operating.

If the drug isn’t effective — that is, if it’s an improper formulation or an off-market product that doesn’t meet U.S. standards — the condemned inmate could suffer horrible pain, something the U.S. Supreme Court has made clear is not legally tolerable.

The drug isn’t often used in hospitals; it has been replaced by other drugs. And California had to put all of its executions on hold last fall when the state’s last batch expired.

The documents are the latest released as the result of a federal lawsuit filed by the ACLU of Northern California and the Guardian seeking access to all records related to the import of the death drug. Last week the DEA released 71 pages of documents, but withheld 160 pages, justifying the withholding by saying that some of the records are part of an ongoing criminal investigation.

A May 16 letter from Katherine Myrick, the DEA’s chief Freedom of Information Officer, states that there are “two active investigations” and that release of the records could “reasonably be expected to interfere with enforcement proceedings.” The documents reveal how desperately state prison authorities were trying to find a way to procure the drug — and how concerned the DEA was about importing a controlled substance by agencies that had no medical or research functions.

Among other things, they show that the Obama administration was taking an active role in the process: “The White House is involved and is trying to sort things out,” a Nov. 11, 2010 memo from the Office of Diversion Control states.

Another Nov. 11 memo notes that “states have been importing the lethal drug regimen from England … the U.K. has written the State Department (and the FDA?) asking the U.S. to end the importation of the drug, which is being used in lethal injections.”

A Nov. 9 memo notes that “FDA is concerned about importation of non-FDA approved sodium thiopental used for executions … Safety, efficacy and indication are FDA issues. So is the matter of off-label use (which was also brought up).”

The memo from the Liaison and Policy Office explains that the “DEA requires a valid DEA registration as an importer and a properly executed declaration in order to import controlled substances.”

A Nov. 12 memo confirms that “only two import declarations have been filed for sodium pentothal” — meaning that all the other states obtained their supplies illegally. The identity of the two states is blacked out.

Arizona has an execution date set for May 25, and Nebraska has an execution scheduled for June 14. But the documents are so heavily redacted, and so many pages are missing, that it’s impossible to tell exactly which states are doing what — and whether any of the upcoming executions would be using illegally obtained drugs.

“The DEA is making it impossible to know whether the states are complying with the law and whether DEA is fulfilling its obligation to enforce our nation’s drug laws,” said Natasha Minsker, death penalty policy director for the ACLU of California. “Importing sodium thiopental without informing the DEA is a crime. We now know the DEA was poised to go into the Arizona Department of Corrections and seize their drugs, as they did in Georgia, but for some unknown reason they did not. Why did the DEA seize drugs in some states but not others?”

Calls and e-mails to the California Department of Corrections seeking information on whether the department is the target of a federal investigation were not returned. 

 

Arizona to kill prisoner with illegal drugs

Zelda Bronstein
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14
Arizona to kill prisoner with illegal drugs

The state of Arizona is preparing to execute a prisoner with drugs that were obtained illegally, records obtained by the Bay Guardian and the ACLU of Northern California show.


Donald Edward Beaty is set to die by lethal injection early in the morning May 25. However, DEA records show that the sodium thiopental that will be used in the execution was not imported legally — and may not meet U.S. standards for drug quality.


“Arizona is about to execute someone with an illegal substance, and the federal government is ignoring its responsibility to enforce the law,” said Natasha Minsker, Death Penalty Policy Director for the ACLU of Northern California.


Documents obtained recently show that the Drug Enforcement Administration is investigating the illegal importation of the death drugs, and has seized thoipental stocks in several states. But Arizona’s prison system still has custody of the sodium thiopental that it imported.


And documents released May 24 show that Arizona — along with Nebraska, South Dakota and Arkansas — imported the drugs from either the U.K. or India without filing the proper DEA import declarations. That means the prison systems violated federal law.


“The DEA records demonstrate that Arizona and other states broke the law,” Minsker said. “We cannot understand why the DEA has failed to act but has allowed the states to keep these illegal and dangerous drugs. When state officials break the law in order to carry out an execution, it makes a mockery of our justice system and puts us all at risk. State and federal officials must follow and enforce the law—that’s their duty and what the public expects and deserves.”


 

DEA investigates illegal import of death drugs

Zelda Bronstein
-
1
DEA investigates illegal import of death drugs

The federal Drug Enforcement Administration is conducting a multistate criminal investigation into the actions that prison systems have taken to obtain a death drug no longer produced in the United States, documents obtained by the Bay Guardian indicate.


The documents don’t reveal the specific targets of the investigation, but federal agents have siezed drug shipments in Alabama, Georgia, Kentucky, South Carolina and Tennessee and are apparently also looking into drug procurement policies in California, Arkansas, Alaska and Arizona.


The states have been scrambling to obtain sodium thiopental, a drug used in executions, after the lone American manufacturer, Hospira Corp., stopped producing it last year.


Georgia and Arizona both received shipments of the drug from Dream Pharma, a British wholesaler that, according to the Associated Press, “shares a building with a driving school in a gritty London neighborhood.” And California sent agents on a secret mission to get some of Arizona’s supply.


Several other states, including Georgia, obtained the drugs from a different British supplier, Link Pharmaceuticals. According to the Associated Press, Nebraska’s supply was imported from India.


Most of the states imported the drugs without the proper DEA paperwork, a federal crime, the documents show.


The documents are the latest released as the result of a federal lawsuit filed by the ACLU of Northern California and the Bay Guardian seeking access to all records related to the import of the death drug. The DEA this week released 71 pages of documents, but withheld 160 pages, justifying the withholding by saying that some of the records are part of an ongoing criminal investigation.


A May 16 letter from Katherine Myrick, the DEA’s chief Freedom of Information Officer, states that there are “two active investigations” and that release of the records could “reasonably be expected to interfere with enforcement procedings.”
The documents reveal how desperately state prison authorities were trying to find a way to procure the drug — and how concerned the DEA was about the import of a controlled substance by agencies that had no medical or research functions.


Among other things, they show that the Obama administration was taking an active role in the process: “The White House is involved and is trying to sort things out,” a Nov. 11, 2010 memo from the Office of Diversion Control states.


Another Nov. 11 memo notes that “states have been importing the lethal drug regimen from England … the UK has written the State Department (and the FDA?) asking the U.S. to end the importation of the drug, which is being used in lethal injections.”


A Nov. 9 memo notes that “FDA [the Food and Drug Administration] is concerned about importation of non-FDA approved sodium thiopental used for executions …. Safety, efficacy and indication are FDA issues. So is the matter of off-label use (which was also brought up.”


The memo from the Liason and Policy Office explains that “DEA requires a valid DEA registration as an importer and a properly executed declaration in order to import controlled substances.”


A Nov. 12 memo confirms that “only two import declarations have been filed for sodium pentothal” — meaning that all the other states obtained their supplies illegally. The identity of the two states is blacked out.


Sodium thiopental is part of the three-drug mix used for lethal injections in most states that allow capital punishment. It renders the subject unconscious before the other drugs stop the heart and lungs from operating.


If the drug isn’t effective — that is, if it’s an improper formulation or an off-market product that doesn’t meet U.S. standards — the condemned inmate could suffer horrible pain, something the U.S. Supreme Court has made clear is not legally tolerable.


The drug isn’t used very often in hospitals; it’s been replaced by other drugs. And California had to put all of its executions on hold last fall when the state’s last batch expired.


Arizona has an execution date set for May 25 and Nebraska has an execution scheduled for June 14.
But the documents are so heavily redacted, and so many pages are missing, that it’s impossible to tell exactly which states are doing what — and whether any of the upcoming executions would be using illegally obtained drugs.


 “The DEA is making it impossible to know whether the states are complying with the law and whether DEA is fulfilling its obligation to enforce our nation’s drug laws,” said Natasha Minsker, Death Penalty Policy Director for the ACLU of California. “Importing sodium thiopental without informing the DEA is a crime. We now know the DEA was poised to go into the Arizona Department of Corrections and seize their drugs, as they did in Georgia, but for some unknown reason they did not. Why did the DEA seize drugs in some states but not others?”


Calls and emails to the California Department of Corrections seeking information on whether the department is the target of a federal investigation were not returned.

Fear the beard

Maria Poblet
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12
Fear the beard

rebeccab@sfbg.com

Christopher Hanson, a 38-year-old single father who lives in Albany, doesn’t have one of those scraggly, runaway beards that one might associate with jam bands or train hopping. He keeps his goatee neat and trimmed, sometimes using scissors to clip back the mustache. Yet Hanson says he got fired last month because his facial hair was deemed a violation of his company’s employee appearance policy. Now, he’s fighting back.

Hanson worked as an audio-video technician for Swank Audio Visuals, a company that does conferences and events at major hotels throughout the Bay Area, including the Westin St. Francis, the Claremont, and the Four Seasons. On the day he was fired, he was on his hands and knees taping down a power cord for an event that was about to start at the Claremont when his supervisor asked to have a word with him. Having spoken with his boss about the beard situation before, he got a funny feeling.

“I just knew what he was going to say,” Hanson recalled. “I thought: are these guys really going to push this, this far?”

For Hanson, having a beard is not a matter of personal expression; nor is it related to religious reasons. He has psoriasis, which prevents him from being able to shave. About a week before he was let go, his dermatologist sent a note to Swank’s human resources department explaining that although he was undergoing treatment, she had counseled him never to shave his beard. It could exacerbate the disease, she explained. Shaving the affected area could cause pain, redness, and irritation on a daily basis, as well as unsightly rash. The doctor urged Swank to grant a medical exception for Hanson.

Hanson says he reminded his boss, Ken Reinaas, and Reinaas’ boss, Todd Liedahl, about that letter when he was approached for their final conversation about the beard. “I said, ‘I have a medical condition,” Hanson recalled. But he says the response he got was, “I’m sorry, but that’s the way it is.” Hanson says he didn’t yell or let himself become agitated. “I just kind of stood there and tried to keep a calm and humble mannerism,” he said.

About a week later, Swank’s human resources department issued a letter at Hanson’s request explaining why he’d been fired. It stated: “The reason for [sic] end of your employment is due to the fact that we are unable to accommodate your medical request not to shave because this is a standard of our company appearance policy.” Swank did not return multiple Guardian requests for comment.

The job, which had a strict dress code requiring AV techs to wear ties and shirts with collars, paid around $15 an hour. With a teenage daughter to support, Hanson needed every cent to make ends meet. He also had taken on substantial debt to finance an education at Ex’pression College for Digital Arts — a for-profit school in Emeryville with a tuition rate of $11,200 per semester for full-time students — and he needed to be able to pay back the student loans.

Hanson began to suspect that his former employer might have broken the law, so he sought legal representation. According to a complaint filed May 12 on Hanson’s behalf by attorney Albert G. Stoll Jr., the Claremont Hotel — which houses the Swank office where Hanson was based — has no employee restrictions against facial hair. “The manager of hotel banquets had a goatee; one of the hotel banquet employees had a goatee; another hotel banquet employee had a mustache; and at least two other employees had facial hair,” the lawsuit points out.

However, Swank employees were barred from having facial hair because company policy was pegged to the most conservative hotel employee appearance policy in the region, Hanson said.

In the case of the Bay Area, that hotel is the Four Seasons. Before being hired as a full-time AV tech based in Berkeley, Hanson took on part-time gigs for Swank to set up for hotel events as far north as Sausalito and as far south as San Jose. He says that when he was first hired, nobody informed him of the no-beard policy — and he had sported the goatee at the time he was offered the job.

The first time he learned there was a problem was when he was called on to do a job at the Four Seasons in San Francisco. He completed the first job without incident, yet when he was asked to go back a second time, Reinaas told him he would have to shave. He said it was impossible to do that, so the job went to someone else.

When the Guardian phoned the San Francisco Four Seasons to find out just what its employee appearance policy was — and to ask whether exceptions are granted for individuals who cannot shave due to medical or religious reasons — assistant director of human resources Jason Brown said he could not comment.

Months later, after Hanson had been hired as a full-time staff member based at the Claremont, Hanson says he was informed that Swank was ramping up enforcement of its no facial hair policy. He was told he’d have to comply even though he was willing to opt out of work at the Four Seasons. He asked his dermatologist to send the letter urging the company to grant an exception, and shortly after, he was fired.

The lawsuit charges that it was illegal for Swank to fire Hanson because the Fair Employment and Housing Act forbids employers from discharging an employee for designated reasons, including disability. Since Hanson’s psoriasis is a disability, the argument goes, his termination constitutes a form of illegal discrimination.

However, not all medical conditions are considered disabilities in the court of law. Under state law, a disability is considered a serious medical condition that limits a major life activity. If Hanson is successful in proving that psoriasis constitutes a disability, Swank could be ordered to make a reasonable accommodation — such as retaining him as an AV tech while allowing him to opt out of work at the Four Seasons. Hanson’s lawyer Tim Phillips describes this case as being “on the cutting edge of discrimination law.”

There have been similar face-offs over appearance policies in the past, but none that fit Hanson’s circumstance exactly — and, ironically, it seems that he might have an easier time arguing his case in court if he is unable to shave for religious reasons, or if he belongs to a racial minority that is disproportionately affected by a particular medical condition.

Not all cases brought against employers with similar policies in the past have been successful. In 1984, a Sikh machinist working for Chevron refused to shave his beard, in violation of a company policy, and wound up getting demoted to a lower-paid job as a janitor. Chevron’s no-beard rule was created to ensure that employees had a gas-tight seal on respirators worn to protect against exposure to toxic gases, but the machinist could not shave for religious reasons. The Sikh man sued Chevron and lost.

In 1999, Sunni Muslim police officers in Newark sued when they were required to shave their beards to comply with an officer appearance policy, and the court ordered the police department to create an exception for those who couldn’t shave for religious reasons.

Meanwhile, a spate of cases have been brought against no-beard policies at fire departments around the country by African American men suffering from a common skin condition called pseudofolliculitis barbae. The condition, which disproportionately affects African Americans, leaves pimply bumps on the beard area after shaving and can cause scarring over time — and the 100 percent effective cure is to refrain from shaving. No-beard policies in fire departments are borne out of the need for firefighters to wear respirators when battling infernos. While the results of those cases varied from city to city, some plaintiffs were able to show that the policies were a form of racial discrimination because they had a disparate impact on African Americans.

Meanwhile, staff attorney Linda Lye of the American Civil Liberties Union (ACLU) of Northern California was willing to weigh in. There are no laws banning no-beard policies on the state or federal level, Lye said, yet courts have ordered employers to make exceptions for religious reasons and to prevent racial discrimination in the case of the black firefighters. She added that certain municipalities such as Santa Cruz have enacted employment laws that prevent discrimination in appearance policies. In general, Lye noted, the ACLU is “troubled whenever employees are penalized because of medical conditions, race, sexual orientation, or other similar factors.” 

Will SF follow Portland on FBI spy concerns?

Mary Magee
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1
Will SF follow Portland on FBI spy concerns?

The Human Rights Commission and the Police Commission will hold a May 18 joint hearing at City Hall to discuss a recently released memo between the SFPD and the FBI that suggests that SFPD officers assigned to the FBI’s Joint Terrorism Task Force are under the control & rules of the FBI. The concern is that the memo allows SFPD officers to circumvent local intelligence-gathering policies, departmental orders and California privacy laws that prevent spying on people without any evidence of a crime. And the hearing comes a few weeks after Portland’s City Council unanimously approved a resolution that Portland Mayor Sam Adams introduced to clarify that Portland and FBI have decided not to enter into a Memorandum of Understanding (MOU) for the JTTF, but that the City will be cooperating with the JTTF according to the terms of Adams’ resolution.

During Portland’s public hearing, the American Civil Liberties Union (ACLU) of Oregon testified in support of the resolution, while raising concerns about the current and past practices of the FBI and the need to ensure that City personnel comply with Oregon laws.

“The Mayor’s proposal represents a thoughtful framework that should meet the City’s and the FBI’s needs to keep our community safe while also ensuring that Portland police stay within the confines of the Oregon Constitution and Oregon Charge of such violations, and a public annual report on the work the Portland Police Bureau does with the FBI JTTF,” ACLU Legislative Director Andrea Meyer stated.

“It is not a question of if but when, our officers will be asked to engage in investigative activities in violation of Oregon law,” Meyer testified. “To guard against this, we expect that there will be appropriate training of PPB personnel not just on Oregon law but on the FBI guidelines and the minimal criteria necessary for them to be able to engage in assessments and preliminary inquiries so that our PPB officers will be equipped to ask the right questions and refuse to participate and report this to the Chief and, in turn, the Commissioner-in-Charge.”
 
During Portland’s hearing, Mayor Adams stressed that the FBI’s standard JTTF MOU (which is similar to the agreement SFPD officers have operated under since March 2007) —is neither clear nor adequate in terms of addressing local civil rights concerns. And that’s why he sought and won federal consent for a non-MOU arrangement with Portland participating on a limited basis, on its own terms, with local civilian oversight and involvement from the City Attorney.  

“The question pending in SF is whether local officials — from the Police Commission, to City Attorney, to Mayor, will eventually insist on a similarly protective arrangement here, “John Crew of the ACLU of Northern California told the Guardian. “Right now, Portland shows what’s possible, and what the federal government will accommodate. I don’t know why Bay Area cities would not insist on at least something this strong.”

San Francisco’s joint hearing takes place May 18, 5:30 p.m. – 8:30 p.m. in Room 250 at City Hall.

Ghosts of sit-lie past

Zelda Bronstein
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5
Ghosts of sit-lie past

Is sit-lie a case of not learning from our mistakes?

An interesting bit of history that for the most part failed to enter the debate over the ordinance is that San Francisco enacted a similar ban on sitting and lying  in public spaces in the late 1960’s (PDF).

Inspired 40 years later by the same neighborhood, the current sit-lie law is a legislative throwback. Back then, Haight Street was a center of controversy as hippies began to arrive in droves – hanging out, singing, dancing and generally occupying the sidewalks. Some business and property owners were apprehensive over the rapid changes to the neighborhood.

The Board of Supervisor enacted the ordinance, which made it a crime to “willfully sit, lie or sleep in or upon any street, sidewalk or other public place,” with a unanimous vote in 1968. Violation carried a fine of up to $500 and a maximum jail sentence of six months.

Then-Mayor Joseph L. Alioto, who signed the ban into law, told the San Francisco Chronicle the ordinance “will not be used to discriminate against any group or person.” His promise echoes the claims of contemporary proponents of sit-lie.

But police used the law to target not only hippies but also gay men in the Castro. The predictable reality of selective enforcement galvanized popular resistance.

Over the next decade, the ACLU sued and managed to overturn parts of the law. “[The original laws] were being used unjustly by the police against people who were considered undesirable,” said Alan Schlosser, legal director of the ACLU, who has been working for the organization since 1976. They were used against Hippies in the Haight, they were used in the Castro and the Tenderloin against the prostitutes.”

Political pressure from a wide coalition, which included Harvey Milk, convinced the board to rescind the ordinance in 1979. In fact, one of Milk’s signature campaign issues was stopping police harassment of gay people.

The current law does avoid some of the pitfalls of the old one. The ban only applies to sitting and lying down; the sixties-era law referred to the obstruction of public space. Police are now required to issue a warning, and the punishment for violation is significantly lower. Neither distinction, however, alters the fundamental problem of sit-lie.

The ordinance criminalizes an extremely common behavior, which is in itself harmless. The most vulnerable members of our society depend on public space and are inevitably the most susceptible to getting in trouble into the crosshairs sit-lie enforcement.

Queer activists are once again leading the effort against unfair and unwise regulation of public space. We reported April 11th that self-proclaimed “angry queers” installed handmade benches on city streets as a form of protest art. Likewise, this upcoming May 22nd, which is Milk’s birthday, Queers for Economic Equality Now (QUEEN) will be coordinating sidewalk events against sit-lie in San Francisco and Berkeley.

Tommi Avicolli Mecca who organizes with QUEEN, said “for me it is so thrilling to see two cities doing something against sit-lie and invoking Harvey’s name.”

 

ACLU, Guardian sue over secret death drugs

Zelda Bronstein
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1
ACLU, Guardian sue over secret death drugs

The ACLU and the Bay Guardian have filed a federal lawsuit demanding the release of secret documents related to the scramble in California and other states to secure lethal-injection drugs for executions. And we’ve asked the court to issue a preliminary injunction ordering the Drug Enforcement Administration to release the documents quickly.


Both Arizona and Nebraska have recently scheduled executions — and apparently they plan to use drugs that were not obtained in the United States, may have been imported illegally and may not meet American medical standards.


Here’s the ACLU’s statement:


“The DEA has already acknowledged that the public has an urgent need to view records regarding states’ efforts to import execution drugs and the role of federal officials in that process,” said Linda Lye, staff attorney with the ACLU-NC. “We are dismayed that for nearly four months DEA has not released a single document.  The public has a right to these records before imported drugs that may have been illegally acquired are used to execute another inmate.”


Here’s the background:


On January 4, 2011, the ACLU-NC and The Guardian submitted FOIA requests to three federal agencies seeking records related to the federal government’s role in assisting – or failing to oversee – efforts by states to acquire controlled substances from outside the United States to carry out executions. The requests, submitted to the DEA, the Food and Drug Administration (FDA), and US Customs and Border Patrol (CBP), sought documents that would reveal whether state officials violated any laws in the states’ scramble to acquire execution drugs and the role of federal agents in the process.


The ACLU-NC and The Guardian sought these records after public records disclosed by the California Department of Corrections and Rehabilitation (CDCR) revealed that California prison officials engaged in a worldwide “secret mission” to acquire sodium thiopental, a controlled substance used in California’s execution process that is no longer legally available in the U.S. The records from the CDCR and other state prisons eventually revealed that six states imported sodium thiopental from Dream Pharma, a drug distributor that operates out of the back of a driving school in the United Kingdom. Records also revealed that two other states imported a controlled substance purporting to be sodium thiopental from an Indian Company that states publicly it is not authorized to import drugs into the U.S.


The DEA granted the ACLU-NC and The Guardian expedited processing of the FOIA request submitted in January. In so doing, the DEA acknowledged that the records relate to an issue of significant public importance and that the public had an urgent need for the information contained in the records. Yet, for nearly four months, the DEA failed to produce any records and failed to even provide a timeline for when records would be produced.


In the interim, based on questions surrounding the drug’s legality, the DEA has taken possession of the sodium thiopental imported from Dream Pharma from five states. This includes Georgia, Tennessee, and South Carolina, which imported the controlled substance directly from the United Kingdom. DEA also took possession of drugs from and Kentucky and Alabama, which acquired the illegal drug from other states. Only Arizona, California, and Arkansas continue to maintain possession of drugs imported from Dream Pharma, while Nebraska and South Dakota continue to possess drugs imported from India.


I’ll keep you posted.

Spies in blue

Andrew Lam
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19
Spies in blue

sarah@sfbg.com

San Francisco cops assigned to the FBI’s terrorism task force can ignore local police orders and California privacy laws to spy on people without any evidence of a crime.

That’s what a recently released memo appears to say — and it has sent shockwaves through the civil liberties community.

It also has members of the S.F. Police Commission asking why a carefully crafted set of rules on intelligence gathering, approved in the wake of police spy scandals in the 1990s, were bypassed without the knowledge or consent of the commission.

“It’s a bombshell,” said John Crew, a long-time police practices expert with the American Civil Liberties Union of Northern California.

The ACLU obtained the document April 4 under the California Public Records Act after a long battle. It’s a 2007 memorandum of understanding outlining the terms of an agreement between the city and the FBI for San Francisco’s participation in the Joint Terrorism Task Force.

And, according to Crew, it effectively puts local officers under the control of the FBI. “That means Police Commission policies do not apply,” Crew said. “It allows San Francisco police to circumvent local intelligence-gathering policies and follow more permissive federal rules.”

Veena Dubal, a staff attorney at the Asian Law Caucus, agreed: “This MOU confirms our worst fears,” she said.

Dubal noted that in the waning months of the Bush administration, the FBI changed its policies to allow federal authorities to collect intelligence on a person even if the subject is not suspected of a crime. The FBI is now allowed to spy on Americans who have done nothing wrong — and who may be engaged in activities protected by the First Amendment.

FBI activity under this new “assessment” category has since come under fire, and a recent report in The New York Times showed that the FBI has conducted thousands of assessments each month, and that these guidelines continue under Obama.

And if the feds do control San Francisco police policy, then the San Francisco cops could be spying on innocent people — a dramatic change from longstanding city policy. “The MOU is disturbing,” Police Commission member Petra DeJesus told the Guardian. “The department is assuring us that local policies are not being violated — but it looks as if it’s subject to interpretation.”

It’s the latest sign of a dangerous trend: San Francisco cops are working closely with the feds, often in ways that run counter to city policy.

And it raises a far-reaching question: With a district attorney who used to be police chief, a civilian commission that isn’t getting a straight story from the cops, and a climate of secrecy over San Francisco’s intimate relations with outside agencies, who is watching the cops?

 

SPIES LIKE US

San Francisco has a long — and ugly — history of police surveillance on political groups. SFPD officers spied on law-abiding organizations during the 1984 Democratic National Convention; kept files in the 1980s on 100 Bay Area civil, labor, and special interest groups; and carried out undercover surveillance of political groups focused on El Salvador and Central America.

Those abuses led the Police Commission to develop a departmental general order in 1990 known as DGO 8.10. The local intelligence guidelines require “articulable and reasonable suspicion” before SFPD officers are allowed to collect information on anyone.

Even those rules weren’t enough to halt the spies in blue. In 1993, police inspector Tom Gerard was caught spying on political groups — particularly Arab American and anti-apartheid organizations and groups Gerard described as “pinko” — and selling that information to agents for the Anti-Defamation League.

As the ACLU and Asian Law Caucus noted in a December 2010 letter to Cdr. Daniel Mahoney: “That scandal was not just about the fact that peaceful organizations and individuals were being unlawfully spied upon and their private information sold to foreign governments, but that the guidelines adopted in 1990 had never been fully implemented by SFPD. No officers had been trained on the new guidelines and no meaningful audit had ever been implemented.”

Over the years, the commission has tried to keep tabs on police intelligence and prevent more spy scandals. The general order mandates that local police officials have to request general authority from a commanding officer and the chief to investigate any activity that comes under First Amendment protections — and must specify in the request what the facts are that give rise to this suspicion of criminal activity. The order also states that the chief can’t approve any request that doesn’t include evidence of possible criminal activity.

Those requests are reviewed monthly by the Police Commission and there are annual audits of the SFPD files to monitor compliance — so the notion that the local cops are joining the FBI spy squad without commission oversight is more than a little disturbing.

Officials with the FBI and SFPD are doing their best to reassure the local community that there’s nothing to worry about. But so far their replies seem to duck questions about whether FBI guidelines trump local policies. For example, the MOU states that “when there is a conflict, [task force members] are held to the standard that provides the greatest organizational benefit.”

We asked Mahoney to clarify: does that mean the local cops could be held to the FBI’s standards?

“The San Francisco Police Officer(s) who are assigned to the Joint Terrorism Task Force always have and continue to be required to follow all SFPD’s policies and procedures,” Mahoney replied in a statement.

That’s confusing; do they follow SFPD policies, or obey the MOU?

We asked FBI special agent-in-charge Stephanie Douglas whether SFPD officers are involved in surveillance and “assessments” (that FBI code word for creating spy files on individuals and groups) and whether they are identifying as SFPD or FBI officers.

“The FBI only initiates investigations on allegations of criminal wrongdoing or threats to our national security,” Douglas replied April 21. “Our investigations are conducted in compliance with the Constitution, the laws of the United States, the Attorney General Guidelines, the Domestic Investigation and Operations Guide, and all other FBI policies.”

Okay, that’s typical FBI-speak. Here’s more: “The JTTF is a task force comprised of FBI special agents, agents from other federal agencies, and local police officers who have been officially deputized as federal task force officers (TFOs) who have the power and authority of a federal agent. Because all JTTF TFOs are actually de facto federal agents, they are required to operate under federal laws and policies when involved in a JTTF case.”

So the cops are actually feds. But wait: “Our standard JTTF MOU recognizes, however, that the JTTF TFOs do wear two hats, as it were, and directs JTTF TFOs to follow his or her own agency’s policy when it is stricter than the FBI policy under certain circumstances,” Douglas concluded.

Again: not exactly clear, and not exactly reassuring.

“At some point they need to say whether SFPD officers are engaged in assessments,” Crew said.

These questions have spurred the Police Commission and Human Rights Commission to schedule a joint hearing in May to discuss what the document means, why SFPD never alerted the civilian oversight authorities, and whether a clarifying addendum can be tacked onto the agreement.

 

SPY FOR US OR LEAVE

The concerns are likely to be intensified by recent developments in Portland, Ore.

Portland dropped out of the Joint Terrorism Task Force in 2005 over concerns that local cops would be violating privacy laws. But in November 2010, the FBI thwarted a bomb plot allegedly linked to terrorists, and city officials came under pressure to rejoin the JTTF.

But Mayor Sam Adams has insisted on language that would bar local cops from doing surveillance and assessments, which, apparently, won’t fly with the feds.

On April 20, Willamette Week, the Portland alternative paper, wrote that Adams “effectively scuttled” Portland’s reentry into its local JTTF because of his anti-spying language.

In an April 19 letter to Adams, U.S. Attorney for Oregon Dwight Holton stated that Adams’ proposal of only allowing officers with the Portland Police Bureau to be involved in investigations and not in FBI assessments was a deal-breaker.

“Unfortunately, as currently drafted, the proposed resolution does not provide a way in which the PPB can rejoin the team,” Holton wrote. “There is a single provision that stands as a roadblock to participation — specifically the provision that seeks to have the City Council delineate only certain investigative steps a task force officer can take part in. Specifically, the resolution seeks to dictate for the JTTF which stages of an investigation task force officers from the [Portland police] can work on.”

“Investigation and prevention of complex crimes and terrorism are typically fluid and fast-moving,” he added. “It makes no sense to ask [Portland police] officers to be in for one part of a conversation, but out for another part of the same conversation as investigators discuss findings from assessments, investigations, etc. in evaluating and addressing terrorist threats in Portland and beyond.”

The message isn’t lost on San Francisco civil liberties activists. If you don’t let your cops join the spy squad, they can’t be a part of the task force.

“It was one thing to join the JTTF 10 years ago when they were operating under guidelines that, while not to the ALCU’s taste, were at least tied to some level of suspicion,” Adams said. “But they have taken their procedures and guidelines and moved them to the far right. It’s one thing to say that it’s necessary for the FBI to do that, and quite another to say that local agencies have to forfeit their own policies — and with no public debate or decision-making.”

 

ASK THE FEDS FIRST

Further complicating the question of police oversight is the fact that George Gascón, who was police chief when civil liberties groups started asking for a copy of the MOU last fall, refused to turn over the document without asking the feds first.

In a Jan. 4 letter to the ACLU and ALC, Gascón and Mahoney stated that the SFPD could not speak to information about the duties, functions, and numbers of officers assigned to the Joint Terrorism Task Force “without conferring with our partners in the Federal Bureau of Investigation.”

“I am sure you can appreciate the delicate balance we hold in crafting policy that not only supports our mission in the ultimate protection of life, but also in advancing democratic values through collaboration with the communities we serve,” Gascón and Mahoney wrote.

And Gascón is now district attorney.

“It raises the question of accountability,” said Public Defender Jeff Adachi “We want to make sure that police officers working in the city, regardless of whether it be for the feds or the SFPD, are complying with general orders and policies established by the department. But when officers go on an assignment with the feds, we don’t know if they are operating under parameters set by local law.”

Unearthing the FBI’s hitherto clandestine MOU with the SFPD appears to be yet another sign that local police are increasingly being subjected to federal policies not in keeping with local procedures.

As the Guardian previously reported, the 2008 decimation of San Francisco’s sanctuary city legislation and the 2010 activation of the federal government’s controversial Secure Communities program, which both happened during former Mayor Gavin Newsom’s tenure, means that the city of St. Francis now ranks among the top 38 counties nationwide that are deporting “noncriminal aliens.”

Dubal also noted that the FBI came to the SFPD in 1996 asking for help with the task force, but also sought a waiver from the Police Commission so officers could participate without having to follow local rules. “And within two weeks, then Mayor Willie Brown said, not in our town,” Dubal said. “So in 1997, the SFPD said we are not going to join unless we can follow our own rules. And in 2001, when the SFPD joined, it was under an MOU that required them to comply with SFPD rules and was signed in 2002 by then-SFPD Chief [Earl] Saunders.”

Dubal said that after local law enforcement agencies sign an MOU with the FBI, they designate and assign officers to work from FBI headquarters. “In the past, two SFPD officers, paid with San Francisco tax dollars, physically worked in the FBI’s office in a secure room where you can only go if you have security clearance. But they still can’t spy without reasonable suspicion, and they also need audits.”

Crew and Dubal said that in a recent meeting, SFPD officials assured them that local police were following General Order 8.10, but that they are open to creating an MOU addendum to clarify this.

Crew and Dubal remain unsure if the FBI would be agreeable to signing off on that. They note that the FBI has previously stated that its JTTF has sensitive investigations going on so it can’t give the public all the information. “Fine, but the issue is, Are these investigations based on suspicion, or are they based on religious background, associations, ethnicity, and travel patterns?” Dubal said.

They also doubt that the MOU would even have surfaced if not for comments that then SFPD Chief Gascón made, first in October 2009, then in March 2010, that triggered an uproar in the local Muslim, Arab, and Pakistani and Afghani communities.

At the time, Gascón, who has a law degree and graduated from the FBI Academy, had just landed in San Francisco fresh from a stint as police chief for Meza, Ariz., where he drew praise for speaking out against Maricopa County Sheriff Joe Arpaio’s inhumane treatment of undocumented immigrants Given this seemingly progressive stance, Gascón shocked civil libertarians in San Francisco when he said he wanted to unearth SFPD’s intelligence unit, which was disbanded amid scandal in the early 1990s.

“We have to realize that in the post-9/11 world, San Francisco is an iconic city, like New York, Washington. and Los Angeles,” Gascón said. “If somebody wanted to make a big statement about something they disliked about America, doing it here would definitely get attention. We need to know what is going on under the surface of the city.”

But Gascón did not say how a revived police spy unit, which had been shut down in large part due to Crew’s work, would operate. And six months later, he upset Bay Area Muslims during a March 2010 breakfast by reportedly saying that the Hall of Justice building was not just susceptible to earthquakes, but also to an attack by members of the city’s Middle Eastern community who could park a van in front of it and blow it up.

Gascón subsequently claimed that he “never referred to Middle Easterners or Arab Americans,” but that he had instead singled out the Afghanistan and Yemen communities because they pose “potential terrorism risks”

“In light of Gascón’s comments and his desire to resurrect the intelligence unit, people were asking, ‘Is it possible that the SFPD is also doing the same thing?'” Dubal asked, noting that she started getting complaints in 2009 and throughout 2010 about the FBI.

“Folks were saying that the FBI was asking about their religious identity, their family situation, and their political activities,” she recalled. “I certainly saw an upswing in innocent people being contacted. People were saying, ‘What the hell? — the FBI knocked on my door at 5 a.m.'”

 

COMMUNITIES UNDER SIEGE

A 2011 Human Rights Commission report documents frequent complaints from Arab, Muslim, and South Asian communities facing racial and religious profiling while traveling and unwaraanted interrogation, surveillance, and infiltration by local and federal law enforcement personnel at their homes, places of worship, and workplaces.

The report recommended asking the supervisors and the Police Commission to “ensure that all SFPD officers, including those deputized to the Joint Terrorism Task Force, follow and comply with local and state privacy laws, including DGO 8.10.”

On April 5, the Board of Supervisors voted 10-0 to approve a resolution, sponsored by Sup. Ross Mirkarimi and cosponsored by Sups David Chiu, Eric Mar, David Campos, and John Avalos, to endorse the HRC report.

All this is happening against the backdrop of FBI guidelines that have been loosened twice since September 2011, first by U.S. Attorney General John Ashcroft in the wake of the 9/11 terrorist attacks, then by Attorney General Michael Mukasey in the dying days of the Bush administration, and now by the Obama administration.

And as The New York Times reported in March, records obtained through a Freedom of Information Act request show that between Dec. 2008 and March 2009, the FBI began 11,667 assessments of people and groups for criminal/terror links, completed 8,605 assessments, and launched more than 400 intensive investigations based on the assessments. The FBI also told the Times that agents continue to open assessments at about the same pace

Crew noted that Mukasey’s guidelines marked the first time since 1976 that the FBI has been allowed to do assessments and collect files without a suspicion that a crime has occurred.

Dubal observed that the most relevant documents to emerge from a recent FOIA request to determine if the FBI has engaged in disturbing intelligence gathering activities are those related to “geomapping.”

“The materials are not particular to Northern California, but they show how FBI maps communities based in ethnic concentrations,” Dubal said.

Dubal also pointed to the case of Yasir Afifi, an Egyptian American student from Santa Clara, who found an FBI tracking device on his car when he took it in for an oil change. In March 2011, CAIR filed suit in Washington, D.C., alleging that the FBI violated Afifi’s First, Fourth, and Fifth Amendment rights by failing to obtain a warrant.

DeJesus recently told the Guardian that the Police Commission was never made aware of the MOU’s existence. “The chief should have checked in with the commission president, at the very least,” she said. “The idea that they were not reporting this to anyone is disconcerting.”

“The SFPD does not have the authority to enter into a secret agreement with the FBI whereby some of its officers are allowed to conduct intelligence operations in violation of the Police Commission’s General Order 8.10,” Crew added.

In a Jan. 25 letter to Mahoney, representatives from the ACLU and the ALC noted that “in the past, the SFPD had not previously deferred to the FBI on whether or how to openly address how San Francisco police officers will be supervised and held to well-established and painstakingly and collaboratively crafted San Francisco general orders.”

“These are low-level investigations that require no criminal predicate, meaning that when initiating an assessment, FBI agents can conduct intrusive forms of investigation without any criminal suspicion,” Dubal said. “These include interviewing innocent Americans, infiltrating organizations, using open source data to spy and surveil, going into religious centers such as mosques to spy and surveil, and recruiting and using informants.”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Tasers vs. talk

Jesse Hawthorne Ficks
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1
Tasers vs. talk

rebeccab@sfbg.com

At a Feb. 23 Police Commission hearing, San Francisco interim Police Chief Jeff Godown told the civilian oversight board he wanted to investigate Tasers as a less-lethal weapon for San Francisco Police Department (SFPD) officers. Speaking to a room crammed full of community advocates who had turned out to rail against the idea, Godown seemed to try to preemptively address a concern that opponents were sure to raise during public comment.

“This is not about mental illness,” the chief said. Along with police commissioners who favored the Taser proposal, Godown drove that point home several more times throughout the evening, stressing that Tasers were not being sought as a law enforcement tool for dealing with violent, mentally ill individuals. Nevertheless, he said situations could potentially arise in which the stun guns would be used against the mentally ill, if officers were authorized to carry the devices.

At the end of a marathon meeting, SFPD won approval to spend 90 days investigating Tasers and other less-lethal weapons as possible additions to the police arsenal, which now includes pepper spray and batons as well as firearms. Advocates raised concerns ranging from misuse of the devices to accidental deaths caused by Tasers to documented overuse of the weapons in communities of color. The SFPD, meanwhile, emphasized that it saw Tasers as a way to improve officer safety while limiting the use of lethal force.

 

SHOOTING THE MENTALLY ILL

Throughout the discussion, concern about the use of Tasers as a tool against the mentally ill persisted despite the chief’s assurances. “Like it or not, these issues are intertwined,” said American Civil Liberties Union (ACLU) Police Practices Director Allen Hopper. He referenced comments made by former Police Chief George Gascón, who now serves as district attorney.

On Jan. 4, SFPD officers fired twice at Randal Dunklin, a wheelchair-bound, mentally ill man who was brandishing a knife outside the city’s Department of Public Health building. Dunklin allegedly stabbed an officer and suffered a nonfatal gunshot wound to the groin after he had tossed the knife. In press comments delivered in the aftermath, Gascón said the situation illustrated why the SFPD ought to carry Tasers.

“Not only was that not an appropriate circumstance for the use of a Taser, there were so many things wrong with the way police handled that situation,” Hopper said, referencing a YouTube video of the shooting that served to highlight key differences between the official police account and the events caught on tape.

Dunklin was the third person in recent months to be shot in an altercation with officers. Vinh Bui, who was 46, was fatally shot in Visitacion Valley in late December 2010. Michael Lee, who was 43, was fatally shot in a residential hotel in the Tenderloin a few months earlier. Both had a history of mental illness.

Police Commissioner Angela Chan told the Guardian that in light of these tragedies, she became concerned that the first commission meeting of the year initially featured a discussion about Tasers.

“I thought, this does not make any sense,” Chan said, because commissioners hadn’t yet looked at creating a specialized police unit for dealing with psychiatric crisis calls, a move she’d urged the department to consider. The commission schedule was rearranged to reflect her concern, and Chan rushed to book experts for a detailed presentation about crisis intervention training (CIT). In a unanimous vote at the Feb. 9 meeting, the police commission approved implementation of CIT.

The specialized policing technique is patterned after the so-called Memphis model, which originated in Tennessee in 1988 in the wake of a public outcry that arose when white officers gunned down an African American man with a history of mental illness.

Memphis model policing emphasizes de-escalation, which is quite different from the everyday command-and-control method cops are trained to use against suspects. Under this model, officers are taught to consider things such as the tone of voice they are using to communicate with the mentally ill person, the distance they are standing from them, and how the individual might respond to their behavior. Whenever it’s safe to do so, officers are encouraged to allow the mentally ill person the time they need to calm down.

Samara Marion, an attorney and policy analyst with the Office of Citizen Complaints, traveled to Memphis to witness CIT officers on duty. “I was absolutely impressed,” Marion said. “It is community policing at its best.”

CIT has been credited with a dramatic reduction in officer-involved shootings against the mentally ill in Memphis. Randolph Dupont, a clinical psychologist and professor at the Memphis-based School of Urban Affairs and Public Policy, told the Guardian that studies had shown mentally ill people who dealt with CIT officers were more likely to be in treatment three months later than those arrested by non-CIT officers. “Mental health is a community issue,” he said. “You don’t want it to be a police issue to resolve.”

In San Francisco, the program envisions training about 20 percent of the police force to create an elite unit of CIT officers, selecting those who are more experienced and have better track records in dealing with the public. Once in place, 911 dispatchers would alert CIT when SFPD receives calls involving psychiatric crises. On arriving to the scene, a CIT officer would be responsible for taking charge of the situation and directing other officers.

This is the second time an attempt was made to move forward with crisis intervention in San Francisco. In 2001, the department implemented generalized crisis training to all officers instead of intensive training for a specialized unit. However, that low-level effort was canceled last year due to budget cuts.

While CIT won resounding support from the community, the Feb. 23 discussion about Tasers drew tremendous opposition, with around 50 advocates speaking out against the plan. Hopper’s criticism, echoed by several mental-health providers, was that SFPD’s campaign for Tasers sent a mixed message and threatened to overshadow the CIT effort by seeking a quick fix based on a tool instead of a tactic. And rather than moving toward the goal of de-escalation set by CIT, Hopper said, the use of Tasers could exacerbate a situation instead, making it more dangerous for everyone involved.

“The Police Department — we think to its credit — has recognized that [addressing] mental health issues is a departmental priority,” Hopper said. “We think it’s putting the cart before the horse to give police Tasers before they put that plan into effect.”

A mental-health advocate who said she is “living the Kafkaesque world of a family dealing with mental illness” urged the commission to hold off on talking about Tasers until after CIT had been implemented, saying the two were closely connected.

“If you vote to purchase Tasers, you’re undercutting the message that they need to learn de-escalation,” another mental-health advocate noted.

Yet Marion said she thought adequate time was being allotted to study less-lethal weapons, and did not think this would undercut the CIT effort. “As long as the department continues to be motivated and engaged, I don’t see it being a problem,” she said.

Chan told the Guardian that the day after the Feb. 23 commission hearing, Godown phoned her to say he remained committed to CIT. Although she voted to allow police to move forward with investigating Tasers, Chan said her final support would depend on the success of CIT.

“If CIT is not doing well … I am going to be strongly opposed to any adoption of any pilot program,” Chan said. “I do prioritize one above the other.”

 

DEATH BY TASER?

A Taser is an electroshock weapon that can administer 50,000 volts through two small probes, disrupting the central nervous system and bringing on neuromuscular incapacitation.

While Taser proponent Chuck Wexler, a researcher who spoke at the hearing, emphasized that Tasers “are for saving lives,” studies have shown that the risk of death or serious injury increases under certain circumstances. Someone who is Tasered while fleeing police can suffer serious injuries if they can’t break their fall. There are dangerous implications for people whose heart rate is accelerated due to cocaine or methamphetamine, and as the Memphis Police Department learned many years ago, Tasers don’t mix with flammable substances, like an alcohol-based pepper spray that has since been discontinued.

“Lots of times it’s not about the product itself, it’s about … risk factors,” said Maj. Sam Cochran, who worked with Dupont in Memphis to create CIT. “Under some circumstances, things can happen very fast.”

Safety concerns are heightened when it comes to the mentally ill. It’s common for people experiencing psychiatric episodes to behave violently, speak incoherently, and ignore commands, creating the kind of scenario where law enforcement would likely opt to deploy a Taser. According to an extensive research inquiry on Tasers published by the Braidwood Commission on Conducted Energy Weapon Use, Tasers can be especially dangerous when used against people who are delirious.

“First responders should be aware of the medical risks associated with physically restraining a delirious subject or deploying a conducted energy weapon against them,” according to Dr. Shaohua Lu, who is quoted in the study. “They likely have profound exhaustion and electrolyte changes before delirium kicks in. At that stage, any additional insult (e.g., struggling or fighting) can lead to the body just giving out, resulting in cardiac arrest and death.”

Since 2004, when the city of San Jose first equipped officers with Tasers, seven people have died following police Taser deployments. At least one was mentally ill.

MaryKate Connor, a mental-health provider who founded the now-defunct Caduceus Outreach Services, told the Guardian she didn’t think the police officers could separate the issues of less-lethal weapons and tactics for handling the mentally ill. “The promise of the CIT program, whether the police want to acknowledge it or not, is that this is a huge cultural shift,” she said. “It’s not about finding a new weapon. It’s about finding a less lethal way to respond, period.”

Joyce Hicks, director of the Office of Citizen Complaints, sounded a similar note during the hearing. “No weapon can substitute for sound tactics,” Hicks said.

Police Commission braces for another Taser debate

Sasha Cuttler And Mary Magee
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14
Police Commission braces for another Taser debate

The San Francisco Police Department, police commissioners, and community advocates are gearing up for another debate about whether or not SFPD officers should carry and use Tasers. The hearing will be held at tomorrow’s Feb. 23 police commission meeting.

Interim Police Chief Jeff Godown — carrying forward a plan that originated with his predecessor, former police chief George Gascon — called for a hearing on the Taser proposal, according to a Police Commission spokesperson. If it wins approval, the SFPD will begin conducting research to develop training and policy guidelines for the SFPD to implement Tasers. The issue has ignited fierce debate in the past, and resistance is likely to be revived on this go-round.

Last year, the commission rejected Gascon’s proposal to add Tasers to police officers’ use-of-force options. Now, Commissioner Angela Chan, who was appointed last year by the San Francisco Board of Supervisors after the proposal had been defeated, is emerging as a voice of dissent.

Chan submitted a handful of reports published by American Civil Liberties Union (ACLU), Amnesty International, and other sources critical of Tasers for commissioners to review prior to the meeting. She’s also preparing a 45-minute presentation highlighting concerns about the weapons.

The SFPD will give its own 45-minute presentation to try and convince commissioners that it should be allowed to move forward with the plan this time. “It’s another tool for officers to use when encountering violent persons,” noted Sgt. Mike Andraychak, a police spokesperson.

Andraychak said it was too soon to provide any details about whether the Taser proposal would take the form of a pilot program, or be implemented all at once. He did not have specific information about how training would be developed, how the department planned to solicit input from various communities, or how long the department expected to be working on a draft policy if the police commission granted approval. Chak did note that if the SFPD moves forward, it may host town hall meetings about Tasers.

The Feb. 23 police commission meeting is likely to bring vociferous community opposition. The Coalition on Homelessness (COH) and a number of other community-based organizations are encouraging people to attend the meeting and speak during public comment.

In a letter submitted to the police commission, Asian and Southeast Asian Societies, Causa Justa (Just Cause), The Harvey Milk LGBT Democratic Club, COH, and other community advocates point out that Tasers have been declared a form of torture by a UN torture panel, and cite a University of Calfornia San Francisco study finding that police shootings more than doubled in the first full year of Taser implementation.

The community organizations also pointed out that Tasers are manufactured in Scottsdale, Ariz. — and San Francisco is still boycotting Arizona for enacting SB 1070, a bill that has drawn widespread criticism for encouraging racial profiling. Meanwhile, in a lean budget year, the cost of implementing Tasers is estimated at around $2 million, according to the letter.

Despite being turned down last time, the department has revived its Taser proposal in the wake of two officer-involved shootings early this year, including one that struck a mentally ill, wheelchair-bound man who was brandishing a knife. That case came under scrutiny after it was caught on a phone camera and posted to YouTube.

Following that incident, Gascon suggested that the outcome may have been different if officers had the option of deploying Tasers.

Yet Allen Hopper, police practices director at the ACLU, questions the idea that deploying a Taser would have been the correct response in that circumstance — especially in light of a recent Police Commission vote to strengthen SFPD practices when encountering people with mental illness. The Commission recently directed the SFPD to establish a Crisis Intervention Team (CIT), based on a policing model that emphasizes deescalation. Yet Hopper says deploying a Taser would achieve just the opposite.

“We think it’s putting the cart before the horse to give the police Tasers before they put that plan into effect,” Hopper said. People with mental-health problems, he added, are more likely to be on strong medication, or prone to excited emotional states and rapid heart rates — all of which could place them at a higher risk for serious injury or even death if struck with a Taser.

Counted among a class of weapons called conducted energy devices, Tasers deliver a painful electric jolt when deployed, temporarily immobilizing a subject by disrupting the central nervous system and causing involuntary muscle contractions. While they tend to be hailed by law enforcement as non-lethal alternatives to firearms, human-rights organizations have criticized Tasers because accidental deaths have been linked to their use. According to a report by Amnesty International, more than 330 people were reported to have died in the last decade after being struck by police Tasers. While not all of those deaths were directly attributed to the Tasers in coroners’ reports, many of the people who died were found to be in “excited states of delirium” or under the influence of illegal drugs or prescription medications when they were Tasered.

Political activists still oppose Chiu’s handbill regulation

Sasha Cuttler
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12
Political activists still oppose Chiu’s handbill regulation

Progressive political activists and First Amendment advocates continue to have concerns about how Sup. David Chiu’s legislation to regulate handbill distribution will affect low-budget political campaigns, despite Chiu’s efforts to address the criticism.

Two weeks ago, he delayed deliberation on the measure, saying it wasn’t his intention to curtail political speech. The measure returns to the Board of Supervisors tomorrow (Tues/15), but the activists are asking that it be sent back to committee for more work.

Chiu and the Department of Public Works Menu and Flyer Littering Task Force introduced the legislation in an effort to clean up littering and to effectively penalize handbill distribution that doesn’t meet the new regulations of securing literature and ensuring it does not become litter. The new law would require handbills to be securely fastened on doorways or placed under doormats preventing them from becoming litter on the sidewalks and streets.

“You can’t just throw something on a stoop that can be blown away,” Catherine Rauschuber, one of Chiu’s legislative aides who worked on the measure, told us. Handbills can be anything from a menu for a local restaurant to a flyer promoting a community event to campaign advertising and political information. Newspapers are exempt.

But critics of the measure, including California First Amendment Coalition Director Peter Scheer, say it needs a lot more work to pass constitutional muster and safeguard free speech rights.

“The proposed amendment to the San Francisco ordinance is not a ‘reasonable’ regulation of handbills and leaflets because it leaves the distributor of such constitutionally protected materials in doubt as to how to comply,” he told the Guardian. “Specifically, the materials are required to be ‘secured.’ However, the most efficient means of doing so—using tape or other adhesive—is itself prohibited.”

Littering a neighborhood with unsecured handbills is already a criminal infraction, one that is rarely enforced, and Chiu’s legislation would make it an administrative penalty managed at the discretion of DPW. Rauschuber said the penalty would usually be a fine of around $100.

The DPW requested the authority to administer the penalties because it wasn’t a priority of the District Attorney’s Office to prosecute violators, and DPW officials said it would be more effective in lowering the instances of littering, Rauschuber told us.

Political activists such as Karen Babbitt worry about the effect the new legislation will have on grassroots campaigns. She believes that the language of the ordinance creates a disadvantage to political candidates with low-budget campaigns.

“If you place a piece of literature under a doormat and it still somehow ends up on the sidewalk, the campaign can be fined,” she told the Guardian. “I can’t think of a way that I, as a volunteer, could prove that I’d initially placed the piece of lit securely. I try to place them securely, but the wind sometimes still blows them away—especially in windy neighborhoods like Diamond Heights.”

The board’s Land Use and Economic Development Committee approved the measure on Jan. 24, and while political activists say it needs more work, those concerned about litter welcome the change.

Dawn Trennart, a member of the Middle Polk Neighborhood Association and the Menu and Flyer Littering Task Force, saw the handbills become a litter problem in her neighborhood last spring and brought it to Chiu’s attention.

“It is a litter and security problem,” said Trennart said. “The handbills get stuck in doors and cannot lock properly.”

The law would also allow buildings to post a smaller “no handbills” sign with 30-point font, instead of the current requirement of eight square inches, to prohibit distribution. Babbitt believes the ordinance is superfluous to the efforts political volunteers already make.

“Most folks I’ve volunteered with over the years already try to place pieces of literature in ways that keep them from blowing away. It makes your candidate look bad, after all, to have her or his literature blowing all over the neighborhood,” she said.

But she and other activists complain that the new law would presume the campaigns are guilty without offering proof. Scheer also pointed to a 1943 U.S. Supreme Court ruling in the case of Martin v. City of Struthers, which found that litter is not a compelling enough argument to regulate handbill distribution.

Scheer believes that, in order to satisfy the First Amendment, the ordinance should not only state what handbill distributors cannot do, but also state what they can do to avoid penalties, which is commonly called a “safe harbor” provision.

Still, political activists complain that they were not involved in the drafting of the ordinance. While the Sierra Club, ACLU, SF Labor Council, and other groups that distribute political handbills were not consulted, the activists note that Golden Gate Restaurant Association and other business groups were brought in to help shape the legislation.

By asking for the measure to be sent back to committee, where public testimony is taken, the political activists hope their concerns will finally be addressed.

More questions about death drug

Zelda Bronstein
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7
More questions about death drug

The Food and Drug Administration has finally released some more documents about the state’s procurement of its death drugs. The Guardian and the ACLU requested the material under the Freedom of Information Act. You can see the latest here.


A lot of it is just dry correspondance between agencies; the FDA was apparently a bit slow at releasing the imported drugs from customs. But there’s some interesting details in the mix.


For one thing, California and Arizona aren’t the only states that bought death drugs from England. A U.K. company named Dream Pharma also got orders from South Carolina, Arkansas and Georgia. And that pipeline is now shut off; the U.K. will no longer allow companies to export drugs for executions. (Civilized nation there.)


There’s also the interesting issue of whether the stuff that California bought is up to U.S. standards. The records show that the U.K. company doesn’t know if the Sodium Thiopental it sells meets U.S. standards; the company isn’t approved by the FDA. That means a hospital would have trouble buying and using the stuff for clinical purposes — but apparently it’s okay to use on condemned prisoners.


The issue is more than academic. The thiopental is supposed to render the prisoner unconsious and unable to feel pain before the next two drugs paralyze his breathing and stop his heart. If the stuff doesn’t work, then death could be very painful; imagine being awake as your lungs seized up and your heart stopped beating. In fact, the courts have been very clear on this point: Injecting the two final drugs into a person who is consious amounts to cruel and unusual punishment and is illegal.


So how do we know if the stuff the state bought works as advertised? How do we know what the proper dose is (you can’t exactly test it on someone first)? Is CDCR going to pay for a full chemical analysis to make sure they’re using the right amount of the right stuff?


Man, this is grisly. No wonder most civilized countries reject capital punishment.


 


 

ACLU demanding more death-drug documents

Zelda Bronstein
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0
ACLU demanding more death-drug documents

The ACLU is going back to court to demand that the California Department of Corrections and Rehabilitation quit stalling and hand over the remaining documents showing how the state has scrambled to procure a drug for executions.


The group has been trying since October to get records that would show a full picture of how prison officials wound up obtaining a drug that is not currently made in the United States.


On November 30, a Superior Court judge ordered CDCR to hand over any documents that were used in the procurement of the death drug sodium thiopental.


But of the 989 pages that CDCR sent to the ACLU, about 670 of those pages were redacted. Some pages were redacted  to an even indecipherable extent. The ACLU attorneys were back in court this week  trying to pry the remaining information from the CDCR’s stubborn and iron grip.


The legal documents posted on the ACLU site include declarations from ACLU Death Penalty Project Director Natasha Minsker and Bay Guardian Exective Editor Tim Remond, both arguing that the public ought to know the full story behind the execution drug.


According to the ACLU’s legal filings, much of the redacted information doesn’t even fall under the types of information they are allowed to withhold in the first place.


According to the the legal briefs, “the CDCR acknowledges that it has withheld five categories of information.” However, the statement claims that the CDCR withheld information that was outside the boundaries of these categories, from the identity of the physician who ordered the drug purchased from the CDCR to the drug’s packaging information.


CDCR has a record of delaying the release of information. We send our public records request (similar to the ACLU’s) on Oct. 20th, and have received nothing at all in response. Now if we want the information from November and December, we would have to submit yet another request. At this rate, we will be well into 2012 before we truly get all of the information we want.


According to Minsker, “the judge is now giving the CDCR more time to brief the issues and has asked us and CDCR to confer, to see if we can agree on any of the records.”


She also stated in an e-mail  that the next briefs are due January 6th and the next hearing is on January 10.


 

Mysteries of the death-drug scramble

Jesse Hawthorne Ficks
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0
Mysteries of the death-drug scramble

news@sfbg.com

The California prison system finally released some documents on its efforts to procure the chemicals it needs to execute prisoners, and the 1,000 pages show the desperate lengths state officials have gone to procure the death drugs.

At one point, the California Department of Corrections and Rehabilitation looked at importing drugs from Pakistan. In October, prison officials sent agents on a secret midnight mission to Arizona to acquire sodium thiopental, one of the drugs used in executions, from that state’s supply.

In the end, CDCR wound up buying an extraordinary quantity of the stuff from a supplier in London — potentially putting California in the disturbing position of serving as the death-drug dealer to the rest of the country.

The protocol for lethal injections in California, and 33 other states, calls for three drugs — sodium thiopental to put the condemned inmate in a coma; pancurium bromide to paralyze the muscles; and potassium chloride to stop the heart.

But sodium thiopental, also known as Sodium Pentothal, has been in short supply in this country, in part because the one company that currently makes it, Hospira, has production backlogs. There’s not a whole lot of need for the drug in modern medicine — it’s largely been replaced with other anesthetics — and Hospira has made it clear in repeated press statements that it doesn’t want its product used in executions.

So when the last batch of the stuff in the state’s hands expired in October, California had to put executions on hold while prison officials scrambled to find some more.

 

HIDING THE TRUTH

The whole process was cloaked in secrecy. Nobody at CDCR would tell us where they were looking for the sodium thiopental, who would be procuring it, or how the supply chain might work. That, of course, is crucial, in a grisly way: If the anesthetic didn’t perform properly (that is, if the state got a bad batch from an unregulated supplier), a prisoner could go through unspeakable agony as the second batch of drugs made it impossible to breathe.

The Guardian filed a request in October under the California Public Records Act seeking details on the purchase attempts, but CDCR stonewalled. The American Civil Liberties Union, also seeking the documents, filed a lawsuit, and a judge ordered the release of a large volume of material.

Those documents, now available at aclunc.org, is heavily redacted, and much of the material we expected to see is missing. But the documents contain some remarkable revelations.

For starters, there’s an internal timeline going back to 2007 showing that CDCR officials knew back then, while the drug protocol was being developed, that there would be problems. The Drug Enforcement Administration will only allow a doctor to order the class III controlled substances. And the federal receiver overseeing the prison system wouldn’t allow any of the three doctors on staff at San Quentin State Prison to sign the order forms, although the documents didn’t say why.

In January 2007, CDCR tried to recruit outside doctors to order the drugs — but physicians in California have traditionally declined to assist in executions. Indeed, the American Medical Association policy bars doctors from participating in capital punishment in any way, including “prescribing or administering tranquilizers.”

It wasn’t until May 2010 that CDCR was able to find doctors willing to order the deadly drugs; the names of those physicians are not in the documents.

The timeline shows that in June 2010, CDCR became aware that there was a shortage of sodium thiopental, but there was no public discussion of the situation. Plans to execute Albert Greenwood Brown, a convicted murderer set to die in September 2010, went forward.

But the courts weren’t rushing the execution — and the last batch of sodium thiopental in CDCR’s possession expired Oct. 1.

As the clock ticked down toward that expiration date, the documents show, CDCR officials — all the way up to Corrections Secretary Matthew Cate — were involved in an all-out scramble to get more of the drug.

At one point, a Sept. 16 e-mail — from an official whose name is blacked out — notes that CDCR had contacted between 80 and 100 hospitals to try to buy some sodium thiopental, but “none of them have a drop.”

The documents note that CDCR officials even suggested that there were supplies of sodium thiopental in Pakistan. An Aug. 17 e-mail from John McAuliffe, a contract worker helping CDCR with executions, says the agency is trying to get federal government approval to import the drug.

One e-mail even suggests that an unnamed CDCR employee was in the area and could make a side trip to Pakistan to pick up the stuff.

 

THE LONDON CONNECTION

There are, of course, serious issues with importing controlled substances into the United States, and the documents show efforts by CDCR to get the DEA to approve imports. The Pakistan deal apparently went nowhere — but later e-mails show CDCR officials contacting a supplier in London. The name of the supplier is blacked out on all the documents, but CDCR’s deputy press secretary, Terry Thornton, later confirmed that the manufacturer was Archimedes Pharma.

Immediately after the California order for 521 grams of sodium thiopental went through, Britain’s secretary of state for business, Vince Cable, issued an order barring any further exports of the drug for use in executions.

Like most of the civilized world, the United Kingdom does not allow the death penalty.

In the meantime, Scott Kernan, CDCR’s undersecretary for operations, was trying to get enough of the death drug domestically to carry out at least one execution. A series of e-mails show contacts between California and Arizona, which recently had imported its own supply — and there are indications that Gov. Arnold Schwarzenegger was willing to call his counterpart in Arizona to help consummate the deal.

“I’m sure either the secretary or even the governor could make a call,” a Sept. 9 e-mail from Kernan to McAuliffe notes.

Then on Sept. 29, Kernan sent an e-mail to Assistant Secretary Anthony Chaus discussing a “secret and important mission.” Kernan wanted Chaus to send a team to a state prison complex in Florence, Ariz., a desert town about 40 miles southeast of Phoenix, to pick up 12 grams of the death drug.

At midnight Sept. 30, the warden in Florence gave the CDCD agents 24 vials, each containing half a gram of sodium thiopental. The agents drove it to Bakersfield, where another team picked up the vials and drove the rest of the way to San Quentin.

In a stomach-turning e-mail, Kernan sent a note Sept. 29 to an unnamed Arizona official saying “you guys in Arizona are life savers” and offering to “by [sic] you a beer next time I get that way.”

By then, a federal judge had delayed Brown’s execution until 2011.

Among the most startling revelation was the sheer quantity of sodium thiopental California eventually ordered from the firm in London. Even with training supplies and backup, it only takes between six and 12 grams of sodium thiopental to render a prisoner unconscious — meaning that the 521 grams that CDCR purchased for $36,413 are enough to kill between 43 and 86 people. The expiration date on the chemical is 2014.

It’s highly unlikely, given the legal hurdles and time involved in even one execution, that California would schedule more than three over the next three years. What possible use could the state have for so much death drug?

Thornton, CDCR’s press person, wouldn’t respond to our queries. But Natasha Minsker, the director of the ACLU’s Death Penalty Project, said she’s concerned that California will try to become a supplier for other prison systems. “It certainly raises questions,” she told us.

There’s a lot missing from the documents. In many instances, the names of the officials who sent and received e-mails are redacted. And there are obvious pieces of the puzzle missing from the files CDCR has released.

“There’s no e-mail from the DEA or the FDA,” Minsker said, “although CDCR was clearly contacting them. There’s nothing from the governor’s office, although it’s likely they were also involved.”

Overall, Minsker said, the documents “show how sneaky CDCR was trying to be about all of this.”

The ACLU filed another suit Dec. 13 seeking the release of some of the redacted material as well as records of CDCR’s efforts between October and December.

If those documents are ever released, they may address some of the looming questions about the material the state uses to kill people.

Going to a club — or boarding an airplane?

Jesse Hawthorne Ficks
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12
Going to a club — or boarding an airplane?

news@sfbg.com

The War on Fun — a term coined by the Guardian in 2006 to describe the crackdowns on nightclubs, special events, and urban culture by police, NIMBY neighbors, and moderate politicians — continues to grind on in San Francisco.

The latest attack was launched by Mayor Gavin Newsom and the San Francisco Police Department, which has proposed a series of measures to monitor and regulate individuals who visit bars or entertainment venues, proposals that the embattled Entertainment Commission will consider at its Dec. 14 meeting.

Perhaps most controversial among the dozens of new conditions that the SFPD would require of nightclubs is an Orwellian proposal to require all clubs with an occupancy of 100 persons or more to electronically scan every patron’s identification card and retain that information for 15 days. Civil libertarians and many club owners call this a blatantly unconstitutional invasion of privacy.

Driving the latest calls for a crackdown is a stated concern over isolated incidents of violence outside a few nightclubs in recent years, something Newsom and police blame on the clubs and that they say warrants greater scrutiny by police and city regulators.

But the proposals also come in the wake of overzealous policing of nightclubs and parties — including improper personal property destruction and seizures, wrongful arrests and violence by police, harassment of disfavored club operators, and even dumping booze down the drain — mostly led by SFPD Officer Larry Bertrand and his former partner, Michelle Ott, an agent with the California Department of Alcoholic Beverage Control.

Those actions were documented in back-to-back cover stories by the Guardian (“The New War on Fun,” March 24) and SF Weekly (“Turning the Tables,” March 17), and they are the subject of multiple ongoing lawsuits by nightclub owners, patrons, and employees, including a racketeering lawsuit alleging that officials are criminally conspiring against lawful activities.

Yet rather than atoning for that enforcement overreach, Newsom and SFPD officials seem to be doubling down on their bets that San Franciscans will tolerate a more heavily policed nightlife scene in the hopes of eliminating the possibility of random violence.

A series of nighttime shootings this year has grabbed headlines and prompted calls to action by the Mayor’s Office and Board of Supervisors President David Chiu, whose District 3 includes North Beach. In February, there were shootings at Blue Macaw in the Mission and Club Suede at Fisherman’s Wharf, followed by a shooting at the Pink Saturday fair in June, one outside Jelly’s in SoMa in July, and the high-profile murder of a German tourist near Union Square in August.

Chiu responded with legislation to give the Entertainment Commission greater authority to close down problem nightclubs and, more recently, with legislation to require party promoters to register with the city so that officials can take actions against those who act irresponsibly.

In September, Newsom asked the SFPD for its recommendations and he received a laundry list of proposals now before the Entertainment Commission. That body held a closed session hearing Nov. 30 to discuss a confidential legal opinion by the City Attorney’s Office on whether the identification scan would pass constitutional muster, an opinion that has so far been denied to the Guardian and the public, although officials say it may be discussed in open session during the Dec. 14 hearing.

“Everything is being considered,” Jocelyn Kane, acting executive director of the Entertainment Commission, told the Guardian. Her office already has looked at the different types of scanners that clubs could use and has discussed the idea with several technology companies.

SFPD Inspector Dave Falzon, the department’s liaison to the nightclubs and ABC, told the Guardian that he believes the data gathered from nightclub patrons would allow police to more easily find witnesses and suspects to solve any crimes committed at or near the nightclubs.

“It’s not intended to be exploited,” Falzon said, stressing that the recommendations are a work in progress and part of an ongoing dialogue with the Entertainment Commission — an agency Newsom, SFPD officials, and some media voices have been highly critical of over the last two years.

Along with the proposal for the ID scanners, SFPD proposed many other measures such as increased security personnel (including requiring clubs to hire more so-called 10-B officers, or SFPD officials on overtime wages), metal detectors at club entrances, surveillance cameras at the entrances and exits, and extra lighting on the exterior of the night clubs.

Though this may sound to many like heading down the dystopian rabbit hole with Big Brother potentially watching your every move, Falzon thinks it’s the opposite. “It isn’t that police department is acting as a militant state,” Falzon said. “All we’re trying to do is to make these clubs safer so they can be more fun.”

Yet critics of the proposals don’t think they sound like much fun at all, and fear that employing such overzealous policing tools will hurt one of San Francisco’s most vital economic sectors while doing little to make anyone safer.

Jamie Zawinski is the owner of the DNA Lounge, which recently celebrated its 25th anniversary. He has been a leading voice in pushing back against the War of Fun, including running a blog that chronicles SFPD excesses. He said the proposed regulations go way too far.

“It’s gang violence happening on the street. The nightclubs are being scapegoated. You don’t solve the problem by increased security in the clubs,” Zawinski told us, adding that the lack of proper policing on the streets should be addressed before putting the financial strain on the entertainment industry.

“It’s ridiculously insulting. I will not do that to my customers. It’s not a way to solve any problems,” Zawinski said. “It sets the tone for the evening when you start demanding papers.”

It’s also a gross violation of people’s rights, says Nicole Ozer, the director of Technology and Civil Liberties Policy for the American Civil Liberties Union of Northern California. She said that recording people’s personal information when they enter a public venue raises troubling legal issues.

“There are some real implications of tracking and monitoring personal data. The details of what you visit reveal things about your sexuality and political views,” Ozer said, adding that the ACLU would also have issues with how that information is used and safeguarded.

In response to police crackdowns on nightlife, club owners and advocates earlier this year formed the California Music and Culture Association (CMAC) to advocate for nightlife and offer advice and legal assistance to members. CMAC officials say they are concerned about the latest proposals.

“The rise in violence has to be looked at from a societal point of view,” said Sean Manchester, president of CMAC and owner of the nightclub Mighty. He noted that most of the violence that has been associated with nightclubs took place in alleys and parking lots away from the bars and involved underage perpetrators. “In many instances [the increased security measures] wouldn’t have done anything to stop it,” he said.

While there are plenty of ideas to combat crime at nightclubs, nightlife advocates say the city is going to have to look beyond club venues to address what can be done to combat crime without infringing on any civil liberties or damaging the vibrant nightlife. Or officials can just listens to the cops, act on their fears, and make the experience of seeing live music in San Francisco more like boarding an airplane.

The Entertainment Commission meets Dec. 14 at 6:30 p.m., Room 400, City Hall.

Secrets of the state’s death-drug deal

Zelda Bronstein
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0
Secrets of the state’s death-drug deal

After weeks of grilling the California Department of Corrections and Rehabilitation (CDCR) on the source of their newly acquired sodium thiopental, we are finally getting some answers.

Deputy Press Secretary of the CDCR Terry Thornton verified to the Associated Press yesterday that the state has acquired 521 grams of the lethal injection component from a British manufacturer, Archimedes Phrama.


Thornton said that the state paid $36,415 for the drug, “its chemicals, all legal and processing fees, and shipping and handling.”


So CDCR has finally given the public some information to work with — although many of the details are still sketchy. We filed a formal public records request in October asking for information on the procurement, and the agency still hasn’t turned over the documents.


But at least we know that California has obtained its death drug from overseas. And apparently, British officials aren’t thrilled about it. No European nation has the death penalty, and officials across the pond are dubious about helping other nations kill their own citizens.


Earlier this week, Britain’s secretary of state for business, Vince Cable, issued an order adding sodium thiopental to the list of items that must be licensed for export — effectively banning its sale to institutions that will use it for executions. Although Cable issued the order after Arizona inmate Jeffrey Landrigan’s execution on October 26, the British media commended him for putting an end to the export of the death drug.


According to the UK Guardian, Cable realized that the sodium thiopental “was not being sent there to help save lives, only to take them.”


The London paper also noted that since California uses just 3 grams of the drug to execute each individual— and keeps an additional 3 grams as backup — the state has acquired enough of the stuff to kill 86 people.


California’s executions have been on hold until the state could acquire more of the drug — and the legality of using thiopental in the first place is still a matter of debate. And given the fact that this new batch will expire in 2014, why does the state need so much of the drug for just three years? Does CDCR really expect to kill almost 30 people a year, one every 10 days or so — between now and 2014?


Actually, that’s not even remotely possible — executions involve long legal proceedings, and there are no more than a handful of cases that could possible reach that state in the next 36 months. So will California be reselling this stuff to other states? Will we become the default death-drug dealer for America? Who in Sacramento approved that policy? We couldn’t get an answer from Thornton on that.


Thornton told AP that the state’s fresh shipment is currently on the East Coast waiting to be approved by the FDA, and is already authorized by the DEA to be sent to the prisons.Facing lawsuits from the ACLU, the CDCR must soon release its documents, which include most of the details of the drug’s acquisition.


 “We’ve been as transparent as we can be,” Thornton said.


Well, not exactly.


 

California’s secret death drug

Jesse Hawthorne Ficks
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0
California’s secret death drug

news@sfbg.com

California was forced to postpone the execution of convicted murderer Albert Greenwood Brown in September because the state had run out of sodium thiopental, part of the death drug cocktail used in lethal injections.

The last batch of the drug expired Oct. 1 and the manufacturer won’t have more until 2011. So as of early October, all executions had been postponed until next year.

But on Oct. 6 the state Department of Corrections and Rehabilitation announced in a court filing that it had obtained 12 grams of sodium thiopental, also known as sodium pentothal, with an expiration date of 2014. That could mean some swifter executions.

But it also raises a critical legal question: where did the drug come from, and did the state violate federal or international laws obtaining it?

CDCR isn’t talking. Terry Thornton, deputy press secretary, refused to identify the source of the newly acquired drug. But it clearly didn’t come from the manufacturer Hospira. The company, the only U.S. manufacturer of sodium pentothol, says it has none available and is in no rush to sell it to the CDCR. In a statement released by Hospira, company spokesperson Daniel Rosenberg announced that “the drug is not indicated for capital punishment and Hospira does not support its use in this procedure.”

Natasha Minsker, death penalty policy director for the ACLU of Northern California, said it would be tricky for the state to buy the drug from anyone else. “Hospira is the only approved manufacturer in the U.S.,” she said.

But there’s a hint of where California’s supply might have come from. Arizona also recently obtained some of the death drug — Arizona Attorney General Terry Goddard told the Arizona Republic that it was delivered from an unidentified source in Britain.

But the British press has raised questions about the deal. No European country has the death penalty and both British and European Union laws bar exporting for profit materials used for executions.

Both the Arizona and California batches have the same expiration date.

Ty Alper, associate director of the Death Penalty Clinic at Boalt Hall School of Law, explained that to his knowledge, “California got [the sodium thiopental] from a foreign source,” He raised questions about the possible risks of obtaining the drug from an unknown outfit.

“If the drug is not FDA approved, could it have contaminants in it? Could it perform differently?” Alper asked. “If that drug doesn’t work right then, everybody knows the execution will be horribly painful and torturous.”

So far, the U.S. Supreme Court hasn’t bought that argument. Oct. 25 the court voted 5-4 to clear the way for Arizona to execute Jeffrey Landrigan, a convicted murderer. “There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe … There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect,” the unsigned opinion stated.

Landrigan was executed Oct 27.

However, we can’t find any evidence that California obtained the drug legally. There are no FDA-approved importers, and federal law strictly limits the ability of anyone to bring powerful drugs directly into the country. Title 21 United States Code of the Controlled Substances Act, Section(b) states: “It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any nonnarcotic controlled substance in Schedule III, IV, or V, unless such nonnarcotic controlled substance … (1) imported for medical, scientific, or other legitimate uses”

Sodium pentothal is a Schedule III drug.

Executing a human being clearly doesn’t count as a “medical or scientific” use — no doctor is involved in administering the lethal drugs. Of course, there might be an opinion from the state attorney general concluding that killing a condemned prisoner is an “other legitimate use” but the office won’t produce one. When we asked if obtaining the drug from a foreign supplier was legal, Christine Gasparac, a spokesperson for Attorney General Jerry Brown, stated in an e-mail that “You’ll have to contact the California Department of Corrections and Rehabilitation for a response to your questions” and that “this office was not involved in the procurement of the drug.”

CDCR hasn’t presented any import license, purchase order, chain of custody documents, or anything else to show where the deadly stuff originated. We’ve filed a written request under the California Public Records Act for the data, but have not received a reply.

That bothers state Sen. Mark Leno (D-SF), who chairs the Public Safety Committee. “I am concerned that a state agency, using taxpayer money, is buying something and refusing to disclose where the money went,” he told us.

Procuring sodium thiopental may become even harder in the future — it has only limited use in medicine.

Dr. Philip Lumb, chair of department of anesthesiology at the University of Southern California medical school, said that over the past few years the drug Propofol has replaced sodium thiopental in the majority of surgical cases. (Propofol is the same drug Michael Jackson overdosed on.)

“It is still available — we still have it,” Lumb said. “It is used sometimes for brain procedures.”

But if Hospira isn’t making much and doesn’t want to sell it to prisons for executions, and European companies can get in trouble for exporting it, California may find that a drug it relies on to kill people isn’t available from any legitimate source. Which means the custodians of our prison system could, in effect, be buying lethal drugs on the black market.

They put other people in prison for that.

UPDATED: SF resident fights for his right to post political signs

Sasha Cuttler
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5
UPDATED: SF resident fights for his right to post political signs

In September, shortly after Elliot Kamin placed two political signs in the window of the condo he rents near Ocean Beach in the Richmond District, he received a letter from his property manager saying, “The signs you have posted in your window are a clear violation of the rules and regulations of the association. Please remove the signs immediately.” But now, with help of the American Civil Liberties Union, the signs are back up and Kamin is no longer being threatened with fines.

Ironically, one of the restored signs reflected Kamin’s concern for civil liberties, urging voters to reject Prop. L, the proposed law that would criminalize sitting or lying on San Francisco sidewalks.

“It is a problem that a lot of condo associations don’t seem to be aware that free speech rights don’t stop at the condo gates,” ACLU attorney Linda Lye told the Guardian. She suggests that some condo residents might be willingly complying with requests to remove signs because they are unaware of the laws.

California Civil Code Section 1353.6 states that homeowners associations “may not prohibit posting or displaying of non commercial signs, posters, flags, or banners on or in property that belongs to a condo owner.”

Kamin called the property management company, which works with the homeowners association that set the rules, and he was told they wouldn’t recognize that legal right, which they said was trumped by their rules for the properties. So Kamin called the ACLU and together, they filed a suit against the Citiscape Property Management Group and the Ocean Beach Homeowners Association.

“If you really want to piss me off, tell me that someone has more rights because they own property,” Kamin said.

OBHA finally relented and entered into a settlement last week that allowed Kamin to put up his two signs, which opposed Prop. L, the proposed sit-lie ordinance and supported judicial candidate Michael Nava. A call to OBHA wasn’t answered and a message left at CPMG hasn’t yet been returned.

“What good are rights if they’re only on paper?” Kamin said.

UPDATE: I just got a call back from Kevin Wyley, president of CPMG, who said the incident began when an individual board member sent Kamin the letter telling him to take down the sign. Wyley didn’t become involved with the situation for about another week: “I was not aware that the board member had told the tenant he could not put up the signs,” he told us. “The board member had mistakenly told the tenant he couldn’t put up a sign.”

Once he was able to reach all the board members to get their assent, Wyley said he contacted Kamin and the ACLU to let them know the signs could remain, although they continue to disagree with the ACLU over whether tenants may have more than nine square feet of total signage.

Wyley said hsaid it took a few more days to get some traveling board members to weigh in on the issue, but once they

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