To protect and spy: the San Francisco Police Department & the Civil Rights Ordinance.

• Author: Lalchandani, Neel

INTRODUCTION I. THE SAN FRANCISCO POLICE DEPARTMENT TEAMS UP WITH THE FEDS II. A SIMPLE FIX? SAN FRANCISCO'S LEGISLATIVE APPROACH A. The Bill's Origins B. The Bill's Core Provisions. C. The Bill's Shortcomings. III. IMPLEMENTATION FAILURES AND POLICY IMPLICATIONS. INTRODUCTION

On May 9, 2012, the San Francisco Board of Supervisors unanimously passed the Safe San Francisco Civil Rights Ordinance. The Ordinance--which was hailed as a "landmark" piece of legislation (1)--was designed to curb abuses within the San Francisco Police Department (SFPD). In 2002, like many police departments following 9/11, the SFPD entered into an agreement with the FBI to aid with counterterrorism efforts. The SFPD enlisted some of its officers in a Joint Terrorism Task Force (JTTF). After revelations that SFPD officers engaged in discriminatory policing and surveillance as part of this partnership, San Francisco responded with the Civil Rights Ordinance.

This Note begins by examining the problems with the SFPD's involvement in federal counterterrorism investigations. It then considers how San Francisco's Civil Rights Ordinance presented an innovative yet simple approach to remedying these problems. Three years after its passage, however, this promise remains unfulfilled and San Francisco's experiment raises the question of whether localities can use legislation to protect the rights of its citizens and prevent police abuse.

1. THE SAN FRANCISCO POLICE DEPARTMENT TEAMS UP WITH THE FEDS

   In the wake of 9/11, state and local police agencies were to serve as the "eyes and ears" of our nation's counterterrorism efforts. (2) JTTFs--hybrid teams of local and state officers and federal agents that actively investigate terrorism threats--were central to this strategy. These Task Forces brought local police officers under the control of the FBI. The FBI described JTTFs as "one-stop shopping for information regarding terrorist activities" and claimed these task forces have been essential in disrupting countless terrorist plots. (3) But JTTFs across the country have been accused of violating civil liberties by engaging in racial and religious profiling, infiltrating mosques and community centers, and collecting vast amounts of private data. (4) Given the nature of the FBI's investigative practices, it is unclear how local police departments fit in. Should local police officers engage in surveillance of the residents they are entrusted to serve? Does their participation on these Task Forces detract resources from other public safety needs?

   The SFPD's experience with the JTTF reveals the possible dangers of these partnerships and provides a backdrop to the civil Rights ordinance. After initially rejecting an invitation to join the JTTF in 1996, the SFPD entered into a Memorandum of Understanding (MOU) with the FBI in 2002. (5) This agreement included "six specific clauses that guaranteed local policies would fully apply to the SFPD's activities in the JTTF." (6) These protections were quickly discarded. In 2007, the MOU was secretly revised and all local and state protections were eliminated. (7)

   The 2007 MOU was extraordinary: it gave SFPD officers in the JTTF the power to disregard state and local law. (8) These officers were instead only accountable to federal policies that were often much more permissive. The SFPD's policy for criminal investigations, for example, requires police officers to first have an "articulable and reasonable suspicion." (9) The 2007 MOU, however, mandated that SFPD officers follow the federal guidelines issued by then-Attorney General Michael Mukasey, which "significantly loosen[ed] the restrictions on the FBI's investigative power." (10) The Mukasey Guidelines permitted surveillance and the use of informants without any factual or criminal predicate. (11) Further, the 2007 MOU barred SFPD officers from even discussing their activities with their police department supervisor without the permission of their FBI supervisor. (12) Thus, the SFPD entered into an agreement that allowed its JTTF officers to disregard state and local law and to surveil San Francisco residents without any basis-all without meaningful oversight.

   Though the full extent of SFPD participation remains unknown, Freedom of Information Act lawsuits have revealed extensive evidence of discriminatory policing in the Bay Area. Since 9/11, FBI officers have infiltrated numerous mosques and community organizations. (13) For example, documents reveal that FBI agents attended a Ramadan dinner at the San Francisco Islamic association under the pretense of community outreach. (14) Members of the Arab, Middle Eastern, Muslim, and South Asian communities have documented dozens of examples of religious and racial profiling, including those who...