430_-_Intelligence_Procedures_for_First_Amendment_Activities

Policy 430Mountain View Police Department Mountain View PD Policy Manual Copyright Lexipol, LLC 2021/04/07, All Rights Reserved. Published with permission by Mountain View Police DepartmentIntelligence Procedures for First Amendment Activities - 1Intelligence Procedures for First Amendment Activities 430.1 PURPOSE The purpose of this policy is to provide guidance regarding intelligence gathering procedures and maintenance of intelligence files. Additionally this policy addresses the investigation of individuals and groups involved in First Amendment protected activities, and expressly limits such investigations to situations where a criminal predicate exists. 430.2 DEFINITIONS Criminal Predicate: The standard by which the determination as to whether information may be used to create an intelligence file is made. It means that there exists a "reasonable suspicion" based on the analysis of legally obtained information that the subject of the information is or may be involved in definable criminal conduct and/or activity that supports, encourages, or otherwise aids definable criminal conduct. For the purposes of this policy, infraction violations will not be considered sufficient to establish a criminal predicate. The underlying offense must amount to a misdemeanor or felony. Reasonable Suspicion: Information which, when viewed in its totality, leads a person with appropriate training, specialized knowledge, and/or experience to conclude that a person, association of persons, or organization may be involved in definable criminal conduct and/or activity that supports, encourages or otherwise aids definable criminal conduct. Open Source: Any source of news or information that could normally be accessed by any member of the public. Examples include the television news, newspapers, speeches at any public gathering or event, the Internet, the public in the form of casual conversations and information brought forward during routine contacts, the radio, billboards, and flyers. Open source information does not include meetings, such as planning meetings or closed door meetings, where First Amendment protected activities are involved, unless the officers are in uniform and have been invited or are otherwise in a place they have a lawful right to be. Informant: Non-law enforcement, non-City employees who are specifically gathering information on behalf,and at the request of the Mountain View Police Department. Video recording: For the purposes of this policy, the video recording (whether surreptitious or in plain sight) of individuals or groups involved in First Amendment related activities. 430.3 CONSTITUTIONAL RESTRICTION TO CRIMINAL ACTIVITY The United States and California Constitutions provide people with the right of privacy, free expression and free association for any lawful purpose. Mountain View Police Department Mountain View PD Policy Manual Intelligence Procedures for First Amendment Activities Copyright Lexipol, LLC 2021/04/07, All Rights Reserved. Published with permission by Mountain View Police DepartmentIntelligence Procedures for First Amendment Activities - 2The California Constitution expressly provides that “privacy” is an inalienable right. The First Amendment of the US constitution prohibits the government from making a law establishing a religion or prohibiting the free exercise of religion, abridging freedom of speech or of the press, or preventing people from peaceable assembly (e.g., marches and picketing). While there are certain categories of speech that are not protected (i.e., fighting words, defamation, etc.), these exceptions are limited and have been narrowly construed. Under these constitutional restrictions, intelligence gathering by the Police Department is only permitted to investigate criminal activity. Intelligence gathering should not include political, religious, or social views or activities of individuals or groups, unless such views or activities directly relate to criminal conduct. 430.4 POLICY It is the policy of the Mountain View Police Department to ensure that the First Amendment rights guaranteed by the United States Constitution are protected for all individuals and groups, including the press, and to permit police involvement in the exercise of those rights only to the extent necessary to provide for the legitimate needs of law enforcement in investigating criminal activity. The Mountain View Police Department will obtain, maintain and use information from legal, reliable sources to meet the needs of the Department and the City of Mountain View in carrying out its efforts to protect the public and suppress criminal activity. When the group or individual being investigated is involved in constitutionally protected First Amendment activity, the Department will ensure that there is reasonable suspicion that a criminal predicate exists. Officers involved in planning for or responding to any protest or event may utilize open source material and are encouraged to contact the individuals or groups organizing the public event in order to facilitate traffic control, crowd management, or other safety measures concerning the event. These measures would not be considered an investigation as defined by this policy. The Mountain View Police Department recognizes its critical task in balancing the need for law enforcement in its efforts to protect the broader society, versus the need to safeguard individual rights guaranteed by a democratic process. At times, law enforcement may need to resort to the use of undercover operations, surveillance, and the use of informants to protect the public from groups espousing violence and/or wanton destruction of property. 430.5 FEDERAL AND STATE GUIDELINES The guidelines of this policy are based largely on the California Attorney General’s Criminal Intelligence Guidelines and Title 28 Code of Federal Regulations, Part 23 (28 CFR 23). To the extent of this policy is more restrictive than the Attorney General’s guidelines or 28 CFR 23, this policy must be adhered to. 430.6 INTELLIGENCE GATHERING Mountain View Police Department Mountain View PD Policy Manual Intelligence Procedures for First Amendment Activities Copyright Lexipol, LLC 2021/04/07, All Rights Reserved. Published with permission by Mountain