Testimony on Behalf of The

Testimony of the

American Civil Liberties Union of the Nation’s Capital

by

Fritz Mulhauser

Staff Attorney

Before the

Committee on the Judiciary

of the

Council of the District of Columbia

Metropolitan Police Department (MPD) Performance Oversight Hearing

March 18, 2011

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Thank you for the opportunity to present information on four topics as the Council reviews the performance of the MPD:

• Six years after the Council legislated strong new rules governing police spying on local citizens involved in First Amendment activity, the required audits by the D.C. Auditor have never been performed. These audits are the only way the public can know whether MPD is obeying the law in the 19 intelligence operations under the law in the last four years, the only way to check whether MPD’s self-report (of no violations) is believable.Council action is needed to assure that these required audits are in fact conducted.

• Action is needed to assure a consistent,reliable and practical method for serving court summonses and complaints on MPD members. Despite repeated attempts by the Council to solve this problem, including legislation, no procedure is in place.

• We renew our recommendation that the committee move forward with the anticipated bill soon to be introduced along the same lines as Bill 18-130, the Police Monitoring Enhancement Amendment Act of 2009, that did not advance to final passage in the last Council period. The bill strengthens the oversight of complaints against police in the District.

• And we draw the Committee’s attention to signals that police action in recent days in connection with the revised statute on disorderly conduct needs early review.

I. Police intelligence operations lack the accountability the Council mandated

After in-depth investigation of police misconduct in handling mass demonstrations since 2000, this Committee in 2004 reported its findings thatMPD surveillance of First Amendment activity violated the law and lacked policy guidance.[1] Based on the investigation findings, and after engaging expert consultants and reviewing exemplary police practices nationwide, the Committee proposed a new law to govern such work. This became the Police Investigations Concerning First Amendment Activities Act of 2004.[2]

The law declared District policy that officers may not investigate or disrupt those engaged in First Amendment activity (defined as protected speech or association, or conduct related to freedom of speech, freedom of religion, freedom of the press and the right to petition our government) in order to retaliate against or prevent or hinder those person from exercising First Amendment rights.

Where MPD has evidence a political organization or persons involved in First Amendment activity have conducted or are planning serious criminal acts, MPD has a need to investigate. The Act sets out a “reasonable suspicion” standard for initiating such criminal investigations involving political organizations or groups, requires high-level authorization for any such investigation and limits investigations (unless again authorized at higher levels) to 120 days. Preliminary inquiry into potential criminal activity requires high level authorization and must go no longer than 60 days. The Act set limits on use of undercover officers in such work. And it requires several kinds of internal monitoring of ongoing work once authorized.

Importantly, the new law requiresMPD to report annually to the Mayor and Council (and a public notice of the report is to be published in the D.C. Register) on activity under the Act. D.C. Code § 5-333.12(c). Perhaps to protect sensitive work, the statute requires MPD to submit only a barebones report:

(1) The number of investigations authorized;

(2) The number of authorizations for investigation sought but denied;

(3) The number of requests from outside agencies, as documented by forms requesting access to records of investigations conducted pursuant to this subchapter;

(4) The number of arrests, prosecutions, or other law enforcement actions taken as a result of such investigations; and

(5) A description of any violations of this subchapter or the regulations issued pursuant to this subchapter, and the actions taken as a result of the violations, including whether any officer was disciplined as a result of the violation.

The ACLU has obtained the four reports MPD submitted since the effective date of the statute in 2005, covering the years 2006-2009.

Citizens will be interested to know in those four years MPD has approved requests for 19 investigations involving protected First Amendment activities. High-level MPD supervisors did not deny a single request. Twenty-one arrests resulted.And although the statute has a dense body of rules governing intelligence operations of this type, MPD reported not a single violation in four years.

They key question for the public is: were these 19 spying projects authorized with a careful balancing of privacy protection and legal justification, did they last no longer than authorized and stay within authorized boundaries, were the resulting files destroyed when no longer needed, and so forth—all as required by the law? MPD published its own report card: they gave themselves an A. No violations.

Perhaps because the Committee recognized that the statute required minimal MPD reporting, the Act established a second level of review. It directed the Office of the D.C. Auditor (ODCA) to audit the annual MPD submissions to the Council and report to the public on whether MPD obeyed the law.

The Council gave ODCA significant authority to review each application for a spy project and how it was carried out including the resulting investigative files, in order to report on what they saw and specifically on any violations of the law they found in that review. See D.C. Code § 5-333.12(d).

This step, in short, seems designed to give the Council some assurance thatthe annual MPD reports aren’t a sham, that they aren’t the equivalent of a note from the fox reporting on his good stewardship of the henhouse. To assure the audit isn’t delayed by fighting over files, the statute also requires in so many words that the Auditor will have access to MPD files and records.

Because of the great public interest in knowing the lawfulness of the 19 intelligence operations involving First Amendment activities that were conducted between 2006 and 2009, the ACLU asked the D.C. Auditor for the public audit reports required to be done to evaluate the MPD 2006-2009 annual reports.

The Auditor responded there have been none.

Why? “No funding was allocated to implement the provisions of D.C. Code § 5-333.12(d)(1).” (See copy attached of the Auditor’s letter dated September 27, 2010.)

The passive sentence construction (“no funding was allocated”) obscures who failed to allocate funding: but the Auditor never responded to our follow up letter asking for an explanation of whose failure was involved here. Nor do we know whether funding has been allocated for audits of reports covering 2010 and 2011.

Oversight of intelligence operations is sensitive; probing by the Council in public hearings will be resisted by the MPD on account of the alleged risk of revealing sources and methods. However, it is clear the present scheme is not working: the Council and the public have no idea if MPD is correctly reporting its compliance with the Act– whetherthe four reports are right there was not a single violation in four years.

In a community such as the District, with an active and engaged citizenry mindful of the well-documented excesses of post-9/11 law enforcement including surveillance of speech and protest of various kinds, it is of the greatest importance to restore confidence that when police need to investigate protected conduct they do so according to the rule of law, established by the Council, the people’s legislative branch.

To help restore that confidence we recommend the Committee:

• Instruct the Auditor in the Budget Support Act to perform the statutory audit of MPD reports on intelligence activities under the Act, with a source of funds identified.

• Review MPD intelligence operations in executive session. Though we generally disapprove of executive sessions of public bodies, this may be one of those rare occasions where meeting in private would be appropriate, at least until required regular audits can be established. Oversight, outside of public view, of MPD’s spying on citizens is better than none.

II. Service of process on MPD members should be regularized

It is not easy to find MPD officers to serve the summons and complaint that initiate a lawsuit in court. Duty stationsand schedules change; short-term court and training assignments change even established schedules; home addresses are understandably not available (or require dozens of hours of investigator time to locate) and the alternative of asking the courts to compel disclosure also wastes resources.

The problem is longstanding. The ACLU along with process servers and the Public Defender have testified about this before and the Council has legislated.[3] MPD officials have not implemented the statutory mandate (designating officials authorized to receive service for officers). At one time MPD offered to implement a substitute but in the past year when we again needed to serve officers no one was aware of that alternative. The only alternative to highly inefficient searches for the officer at work or home (other than seeking a court order) has been to ask attorneys for the District to accept service. But they believe they have no authority to do that and therefore must ask the officer for permission. This is not optimal, depending as it does on a series of voluntary actions.

We urge the Committee to press the MPD to obey the law that has been on the books since 2006. Perhaps an amendment that any expense incurred by a party to make service upon an MPD officer shall be reimbursed by the Department, with interest from the date of service, would get the Department’s attention and cause it to establish a system that it was ordered to establish five years ago.[4]

III. MPD and Housing police complaint review should be monitored by OPC

We also recommend that a new bill, similar to Bill 18-130,expected to be introduced shortly, be passed as soon as possible to expand the ability of the Office of Police Complaints to report on handling of all complaints of misconduct by MPD and the D.C. Housing Authority police.

We make the following comments on the assumption that the Committee will shortly have before it a bill substantially like the prior bill. On that earlier text, we had the following views.[5]

The Office has statutory authority to receive and adjudicate complaints against officers in both forces, but each agency may also handle complaints on its own. The Office also is charged with reporting to the Mayor, Council and MPD Chief on policy matters affecting the complaint process and police management generally. We believe the OPC has published valuable data and made significant recommendations in its policy reports over the years. To do that job properly and serve all those in the District with concerns about law enforcement it is important that the OPC have access to complaints of all kinds, both those submitted to OPC and those to MPD, and the bill would make that possible.

The bill would also broaden the OPC responsibility with respect to operations of the Housing Authority police beyond complaint processing, to add a duty parallel to that of OPC concerning MPD, to address policy matters affecting the complaint process and police management generally.

The bill has specific provisions essential to the success of this expanded OPC monitoring authority. First, the bill would require that MPD and the Housing Authority police provide OPC information about “proposed discipline as well as the actual discipline imposed in connection with citizen complaints sustained” by both police departments.[6] Second, the bill requires both departments to give OPC “unfettered access to all information and supporting documentation of the covered law enforcement agencies related to the Board’s monitoring activities.”[7] This provision allows full review of the investigation and adjudication process so that OPC can assure that complaints are handled in an equivalent manner District-wide.

We also testified earlier on the bill’s advantages. It embodies the best practice of comprehensive police oversight agencies nationwide. Also, it is cost-effective since data from monitoring a broader set of complaints can be used even more effectively to drive improved police practice that in turn can reduce the risk of municipal liability and the cost of litigation.

We urge the Committee to report out this anticipated bill and advocate for Council passage.

IV. Early review of disorderly conduct statute needed

The Committee’s work in the last Council period revising the D.C. Code criminal statutes on disorderly conduct and securing passage of Bill 18-425 was welcome. The new law is generally clearer and more specific. The ACLU had been concerned for years that some officers might exploit the vague language of the old law; ACLU is before the court just now with federal civil rights litigation challenging as an unlawful custom or practice the District’s years of indifference to a longstanding pattern of excessive disorderly arrests by MPD officers. It was a further goal of ACLU in the law reform effort to reduce the use of the charge and end arrests for very minor offenses in order to free resources of police, attorneys and our courts to concentrate on more serious threats to public safety.

Early reports from the field suggest, however, that some aspects of the new law and its implementation may benefit from further review:

• Is it an improvement that nighttime noise, to be a criminal offense, no longer mustactually annoy or disturb a “considerable number” of persons but now only needs to be likely to disturb a single person? Students have told the ACLU that MPD officers are more aggressively entering their residences on noise complaints, announcing their new vigor is “OK under a new law.”

• Is it an improvement that blocking a sidewalk, to be a criminal offense, no longer requires one to “congregate and assemble” to block passage, but now can be an offense involving any narrowing of the passage and can be committed by a single person?[8] Individual sidewalk panhandlers and musicians have told the ACLU that MPD officers in the last few weeks have more aggressively ordered them to move on, again justifying it by saying “the new law says” one person can obstruct and that the full width of a sidewalk must generally be available, hence a person and a small musical amplifier or milk-crate seat can now “incommode” others.

The source of these problems is uncertain: whether in incorrect MPD interpretation and training or incorrect officer understandingand application of adequate training. And to the extent that legislative intent is uncertain, clarification is needed.

In addition, why are MPD officers enforcing the new law at all, when it appears not to be in effect? The Council Web site (visited March 17) showsBill 18-425 passed December 7 and became Act 18-699 that was signed by the Mayor January 19. The Act went to Congress February 2. The projected effective date when the act becomes a law is April 3. Until then, how can any enforcement, wise or foolish,of a bill that is not yet a law be appropriate?

The ACLU recommends the Committee hold a roundtable with community and police witnesses discussing early implementation of the new statute and improvements needed in law and practice.

* * *

Thank you for the opportunity to provide this information for the hearing record. The ACLU would be pleased to respond to any questions the committee may have on these or other aspects of our experience with the police department.

Attachment

1

[1] The investigation found, for example, “MPD assigned undercover officers to conduct surveillance of political organizations and activists in the absence of criminal activity.” Also “MPD assigned undercover officers to conduct surveillance of political organizations and activists without giving those officers any relevant training or policy guidance.” D.C. Council, Committee on the Judiciary, Report on Investigation of the Metropolitan Police Department’s Policy and Practice in Handling Demonstrations in the District of Columbia. March 2004, p. v.

[2]The Act was Title II of the First Amendment Rights and Police Standards Act of 2004. Title II is codified at D.C. Code § 5-333.01 et seq.

[3] See our detailed testimony on this subject to this Committee at the 2010 oversight hearing. We explained there the history. See D.C. Code § 5-105.09 (a 2006 statute directing MPD to issue regulations providing for the “designation of one or more offices, at the command level or the department’s general counsel, where service shall be accepted on behalf of the sworn member”). The MPD published proposed rules twice, at 54 D.C. Register 8816 (September 7, 2007) and at 55 D.C. Register 8894 (August 15, 2008). ACLU commented both times the rules didn’t do what the law required, instead leaving to officers the option whether to accept substituted service. MPD told us in summer 2009 that a third draft was in process but it has never been published. The 2008 rule proposed that the MPD Court Liaison Division arrange for optional service, but in 2009 the head of that office told our staff no such method of service of summons and complaint is in effect. We couldn’t find any such method in place in 2010 either. The Department’s deliberate disregard of the law’s commands is astonishing, or should be.