Bay Area Civil Liberties Coalition Endorses the Surveillance State Repeal Act

The Surveillance State Repeal Act (formerly known as the “Rush Holt bill) will be reintroduced to the 114th Congress by Wisconsin Congressman Mark Pocan. The Bay Area Civil Liberties Coalition has endorsed the legislation.

The bill calls for the repeal of the United States Patriot Act and most of the FISA Amendments Act 0f 2008.

The bill text is below.

Surveillance State Repeal Act 114th(1)

After Hearing, Capitol Police Arrest Lawyer for Shouting Question at Clapper About NSA Surveillance

Article from Kevin Gosztola at Firedog Lake.

Shahid Buttar, a constitutional lawyer and executive director of the Bill of Rights Defense Committee (BORDC), was arrested by Capitol police at the end of a Senate Armed Services Committee hearing in which Director of National Intelligence James Clapper testified.

In video posted by the peace group, CODEPINK, Buttar shouts a question about NSA surveillance at Clapper as he is leaving. An officer is already nearby, which suggests he had already tried to get Clapper’s attention prior to the first question heard in the video.

“In March 2013, you misled the Senate Intelligence Committee about the scope of NSA surveillance. What do you have to say to communities of color that are so hyper-policed that we’re subjected to extrajudicial assassination for selling loose cigarettes, when you can get away with perjury before the Senate?”

The officer standing in front of Buttar informs him this is his only warning. “If you continue, you will be placed under arrest.”

Buttar continues to ask his questions and, no more than ten seconds later, he is arrested. Two Capitol police officers place him in handcuffs and arrest him.

However, Buttar does not stop posing his questions. Senators and staff in attendance exit the room while Buttar says loudly:

Why is your agency above the law, sir?…Why can you lie to the Senate about mass surveillance presuming the entire globe to be subject to pervasive collection, twisting the meaning of the terms in violations of the statutes in the Constitution restraining your agency?

Why are you above the law for perjury and why is the NSA above the law for mass surveillance, even violating the contours that the authors of the Patriot Act intended to authorize in 2001?…[A]nd Senators, why won’t you do your job? You’re charged with oversight of these officials.

When Buttar is being taken out of the room, he is asked why he spoke out against Clapper just now. “Because the Director of National Intelligence committed perjury before the Senate in March 2013, about the scope of mass surveillance, domestic mass surveillance,” he declares.

The Capitol police arrested him for visibly “demonstrating,” a charge Buttar disagrees with because he was just trying get Clapper’s attention while he was in earshot.

Later, Buttar reacted to his arrest, “I asked a simple question of a public official in a public setting that no elected member of Congress has had the independence to ask: how can you lie to Congress and get away with it? It’s a disturbing sign of our draconian times that posing that question is an alleged crime while Clapper’s lies to Congress remain unpunished and tacitly rewarded. Welcome to America!”

Buttar was there with CODEPINK activists, who protested during the hearing.

Oakland Considers a Privacy Policy for its Domain Awareness (Surveillance) Center

From Nadia Kayyali – Electronic Frontier Foundation

https://www.eff.org/deeplinks/2015/02/oakland-considers-privacy-policy-its-domain-awareness-center

February 10, 2015 | By Nadia Kayyali

Oakland Considers a Privacy Policy for its Domain Awareness (Surveillance) Center

Update, February 11: Last night, the Public Safety Committee, led by Councilmember Desley Brooks, “approved in concept the work that has been done so far” by the Ad Hoc Privacy Policy Committee.1The Public Safety Committee indicated that it felt small changes were needed, but their response was overall positive. The policy and additional recommendations will be posted online in order to give the public a chance to comment, and will be in front of the Public Safety Committee at the first meeting in April. However, it turns out that the Port of Oakland decided at a Port Commission meeting (without talking to the City Council, apparently) not to fund 24/7 monitoring of the Domain Awareness Center, meaning that although it has already been built, it will not be staffed unless the City of Oakland decides to pay for staff. With such a scaled-down DAC, the public now has an opportunity to indicate that it wants to tackle the bigger issue of surveillance in Oakland. It wasn’t entirely clear from the Councilmember’s comments where they fall on the recommendation to pass a city-wide policy, so commenting on the policy and attending the next meeting could make a big difference.

It’s been nearly a year since the Oakland City Council, in response to intense community pressure, voted to scale down its original plan for a broad, citywide surveillance system. Oakland’s Domain Awareness Center (DAC) would aggregate information from multiple sources, creating a visual feed that could be easily monitored. In a city that is no stranger to civil liberties violations by the police, it was hotly debated last year. The tension focused on the dangers of a DAC that could aggregate data from sources both at the Port of Oakland and throughout the city. Ultimately, the city council passed a resolution that removed most of the city components—most importantly “shot-spotter” and city cameras—leaving a “port-only” DAC. It also created an ad-hoc “Privacy Policy Committee” tasked with creating a privacy policy for the DAC.

EFF participated as part of the DAC Privacy Policy Committee. (Fellow committee member Phil Wolff did a great job of collecting meeting minutes and notes here.) We played a very cautious role on the committee, understanding that some who criticized the DAC as it was originally proposed were still very concerned that it was moving forward at all.

That being said, we participated in the creation of the privacy policy because we wanted it to be as strong as possible. And when it comes to the Committee’s final product, we think this is a good start. It’s a one-of-a-kind policy that affirmatively seeks to protect privacy, provides people with the ability to sue for damages when the policy is violated, and has detailed data use, retention, and auditing requirements. If the policy passes, it’s likely that it will be used as a model in other cities—hopefully before new technology is ever purchased.

The Good

The proposed policy is 12 pages long, so we won’t go in to every single detail. But overall, the policy now is much improved from the original framework because it:

  • Specifically lists the “allowable uses” for the DAC and who has access to DAC data;
  • Defines important terms throughout to try to close loopholes; and
  • Clearly defines the Domain Awareness Center and its component parts, making it clear that it is restricted to the Port of Oakland.

Part of what makes the policy unique is that it starts off with an affirmative statement about privacy in the “Policy Purpose” section:

This Policy is designed to promote a “presumption of privacy” which simply means that individuals do not relinquish their right to privacy when they leave private spaces and that as a general rule, people do not expect or desire for law enforcement to monitor, record, and/or aggregate their activities without cause or as consequence of participating in modern society.

We think that’s a very strong statement. It’s the opposite of the poisonous idea that if you have nothing to hide, you shouldn’t be concerned about being monitored constantly. Instead, it reinforces that privacy is a right, not a privilege.

When it comes to access to data, the policy is clear: “Only DAC Staff will be used to monitor DAC Data.” When there’s an actual emergency and Oakland’s Emergency Operations Center (where the DAC is housed) is in operation, the policy allows “limited access to the live data produced by the DAC System.”

Access to stored DAC data will be “limited exclusively to City and Port employees with a Need To Know,” and “Need to Know” is narrowly defined. If a law enforcement agency wants DAC data that comes from an outside feeder source, like a Port camera, they’ll have to go directly to that source. Any non-City-of-Oakland agency that wants DAC data will have to get a warrant, unless they already have a written data-sharing agreement—although, of course, the degree to which Oakland shares information with outside agencies is an outstanding issue.

The policy also addresses retention. The DAC has the capability to “bookmark” video—essentially to put a time stamp on it. Under the policy, “[t]he DAC shall not record any data except bookmarks of [the] ‘Allowable Uses’” listed in the policy.

The policy would create Internal Privacy Officer and Compliance Officer positions. The Compliance officer would conduct quarterly internal audits that look at myriad aspects of the DAC: the number of times the DAC was used to monitor protected activity (i.e. demonstrations and protests), who has been accessing data, and more. The audits will also include a number of metrics that are not often considered by city and county governments—but should be—including:

  • Cost: “Total annual cost of the surveillance technology, including ongoing costs, maintenance costs, and personnel costs.”
  • Data-sharing: “How many times DAC data was shared with non-City entities,” what kind of data was disclosed and why, to whom it was disclosed, and any “obligations imposed on the recipient of shared information.”
  • Public Safety Effectiveness: How often the DAC is used, “the number of times DAC Data [is] shared for potential criminal investigations; lives saved; persons assisted; property saved or preserved; [and] property saved or preserved.”

In addition to the internal audits, the policy would also require “annual independent third party audits of DAC performance and security.”

Perhaps the most exciting part of the policy is that it actually prescribes consequences for violations. This part of the policy will be contingent on the city council passing legislation, so it could change or disappear. We’re hoping it won’t. Anywhere that the City of Oakland has jurisdiction, violation of the policy would be a misdemeanor, “punishable upon conviction by a fine of not more than $1,000 or by imprisonment not to exceed six months, or both fine and imprisonment.”

It would also allow any person to go to court and sue for money damages or “equitable relief,” meaning a court order that directs a party to do or not to do something. The damages could include punitive damages, which are damages that are intended to punish the wrongdoer. And, importantly, “reputation” and “mental pain and suffering” are specifically listed as types of damages that could be caused by misuse of the DAC.

We only know of one other city has a private right of action specifically established for privacy violations. That’s the city of Seattle, and the right of action is in the city’s 1979 intelligence ordinance, which was most likely the very first passed.

This piece of the policy is essential because, even if you completely distrust the government to comply with anything else, this allows anyone to take the matter into their own hands and sue. And while the cost of litigation is often prohibitive, the policy also allows for attorney’s fees and other costs of litigation. As the success of litigation against the Oakland Police Department in recent years shows, litigation against law enforcement can actually be effective.

The Bad

This policy isn’t perfect, and the bad pieces deserve attention as well.

First, in the policy ultimately presented to the City, the City Attorney added some language to the “policy purpose” to soften it up. The language isn’t necessary, and it appears to exist only to emphasize that the policy is limited.

Throughout the process of working on the privacy policy, EFF critiqued aspects of it that we were concerned would affect free speech. Since the DAC can only be used during the list of “allowable uses” defined by Section VIII of the policy, that list became critical. For a while, the working draft included “riot.” This might sound reasonable, until you learn that the California definition of riot is simply 2 or more people working together to disturb the public peace. Fortunately, that was removed. However, the policy continues to include “Supply Chain Disruption” and
 “Street Racing/Side Show” in the list.

The former is particularly concerning because the Port of Oakland is no stranger to demonstrations. In fact, the Oakland Police Department’s response to a 2003 Port of Oakland demonstration was the basis for the lawsuit that ultimately required OPD to follow a court-monitored crowd-control policy. These demonstrations could ostensibly be treated as “supply chain disruptions,” which would mean the DAC would be active and used to monitor the demonstrations.

Furthermore, the policy does not (and really, could not) fully address information sharing. To do so would require a full understanding of the relationship between Oakland and other agencies and every possible avenue of information-sharing. Oakland hasn’t made this easy, by claiming exemptions to California’s Public Records Act when people make requests for information about the relationships, such as contracts and training manuals.2

Nonetheless, as we noted in our March 4, 2014 letter, we do know that Oakland participates in a Joint Terrorism Task Force with the FBI and “participates in the Bay Area Urban Area Security Initiative (UASI), a Department of Homeland Security program.” That’s why the idea that DAC has no relationship to fusion centers isn’t particularly realistic. UASI is one of the primary funders for the Northern California Regional Intelligence Center (NCRIC), the regional Bay Area fusion center.” What’s more, the Oakland Police Department in the past, and the Oakland Fire Department currently [PDF] staff the Northern California Regional Intelligence Center. We’re concerned that these relationships will undermine the policy—but we hope that the reporting requirements will help show whether or not information-sharing is actually happening.

Similarly, the policy didn’t directly address the problems with racial profiling outlined by Black, Arab, and Muslim Oakland residents at last year’s city council meetings—partly because the issue is so big that one policy about one piece of law enforcement technology could hardly begin to do so. Ultimately, though, the limitations on the DAC in the policy will hopefully restrain the ability of OPD to use it for racial profiling.

That being said, the Privacy Policy Committee recognized some of the shortfalls, and made further recommendations to the City Council.

  • Amend the city’s whistleblower ordinance so that anyone, not just employees, can report abuse, and increase the ways whistleblowers can report.
  • Pass a new surveillance equipment ordinance, that would require “Informed public debate about any surveillance technology proposal prior to acquisition or pursuing funding,” something EFF and ACLU strongly recommend as law enforcement use of surveillance technology continues to spread.
  • Create a standing “Privacy Committee” that would draft a citywide privacy policy  and look at proposed changes to the DAC before the council.

Oakland’s Public Safety Committee will consider the policy tonight. From there, it will go to the entire city council for approval. If you support it, especially the pieces that require a city ordinance to be enacted to be effective, contacting the Committee, and the ultimately the entire Oakland City Council, is a good idea. We’ll also provide an update of what happens at the Public Safety Committee tonight.

Thanks, No Tanks – San Leandro 2/2/15

Members of the Bay Area Civil Liberties Coalition (BACLC) were happy to join with local activists, many of them high-schoolers and parents in San Leandro Safe, to protest the acquisition of a Lenco Bearcat Medevac, an “armored ambulance” containing a roof hatch, multiple gunner ports and a battering ram. The equipment can be seen here.

Despite an energetic protest and a second consecutive community comment session where more than 90% of the comments opposed the purchase, only one San Leandro City City Council member (Ursula Reed) voted no on the Bearcat acquisition.

Oakland Police Officer Association head Barry Donelan came over to San Leandro to speak in support of the equipment purchase.

Pictures of the protest and the Bearcat below.

1795690_10153262070057985_7747751044796358879_n 10968484_10153262071122985_1584476162428606293_nMEDEVAC ARMORED VEHICLE

KPIX Television Coverage

 

Oakland Forum: The Surveillance State, The DAC and the Privacy Policy

indexForum at the Omni on the Domain Awareness Center and the new Privacy Policy and Surveillance Ordinance up at the Oakland City Council. With JP Massar and Brian Hofer from Oakland Privacy Working Group.

We have a historic opportunity to make Oakland a model for how a community pushing back against the surveillance state can get real limitations placed on the profiling its residents are exposed to.

Listen to the audio here and then come to Oakland City Hall on Feb 10th at 6pm to get this process going.

Hotter Than Lava – From Pro Publica

An article by Julia Angwin and Abbie Nehring and published in Pro Publica on January 12, 2015

It was just before dawn when 18 police officers poured out of an armored truck and an unmarked white van at the Laurel Park apartment complex on the outskirts of Atlanta. A few days earlier, a confidential informant reported seeing “a brown skinned black male” with “a small quantity of a green leafy substance.” The 22-year-old suspect, paroled for forging a check, lived in a small ground floor apartment with easy access. But the police didn’t plan on taking any chances.

Treneshia Dukes suffered second-degree burns from a flashbang grenade. Her sister took these cellphone photos shortly after she got out of the hospital.

Jason Ward and his high-school sweetheart Treneshia Dukes were asleep, naked, in the apartment when an explosion went off and their bedroom window shattered. Ward leapt up toward the broken glass. Dukes started running. In the dark, she crashed into a closet door before stumbling into the bathroom and balling up in the tub. “I just started crying and I’m praying like, ‘I’m not going to die like this, this is not how I want to die,’” she later testified. Seconds later, a man wearing a mask stormed the bathroom and held a gun to her face, instructing her to lie on the floor. “If you move I’m going to blow your fucking brains out,’” Dukes recalled him saying. It was then she noticed skin hanging off her arm and blistering patches of pink flesh on her brown legs.

The masked man noticed her skin, too. He told Dukes to sit up and signaled to a man in plainclothes to inspect her. “The guy came in there,” recalled Dukes, just starting to realize she was dealing with the police, not armed assailants, “and he looked at me and he looked back at the other guy and was like, ‘Y’all done fucked up.’”

Dukes had been hit by a flashbang, a $50 device used by the police to disorient suspects, often during drug raids. First designed nearly 40 years ago to help military special forces rescue hostages, flashbangs create a stunningly bright burst of light and an ear-splitting boom that temporarily blind and deafen anyone standing within a few feet of them. Last week, French special forces used flashbangs as part of a dramatic operation to free hostages held at a kosher supermarket in Paris. But when these modified hand grenades explode on the human body, they can cause severe injury or death. The flash powder burns hotter than lava. Dukes suffered second-degree burns across her body. When later asked to describe the pain she felt that morning on a scale of one to 10, with 10 being the absolute greatest, Dukes said 100.

The military-style assault on the Laurel Park apartment the morning of July 21, 2010, did not uncover a violent criminal’s drug lair. Although Dukes’ boyfriend grabbed a handgun when the window shattered, he tossed it aside as soon as he realized that the intruders were police. He threw himself down on the ground and surrendered immediately. In the end, after storming the apartment and throwing three flashbangs, the police found about a tenth of an ounce of marijuana.

Such aggressive use of flashbangs has become common among today’s militarized police forces. The Clayton County police, who burned Dukes, deployed flashbangs on about 80 percent of their raids in the year prior to her injury, according to police records. Police argue that flashbangs save lives because they stun criminals who might otherwise shoot. But flashbangs have also severed hands and fingers, induced heart attacks, burned down homes and killed pets. A ProPublica investigation has found that at least 50 Americans, including police officers, have been seriously injured, maimed or killed by flashbangs since 2000. That is likely a fraction of the total since there are few records kept on flashbang deployment.

The U.S. Court of Appeals for the 7th Circuit wrote in 2000 that “police cannot automatically throw bombs into drug dealers’ houses, even if the bomb goes by the euphemism ‘flash-bang device.’” In practice, however, there are few checks on officers who want to use them. Once a police department registers its inventory with the Bureau of Alcohol, Tobacco, Firearms and Explosives, it is accountable only to itself for how it uses the stockpile. ProPublica’s review of flashbang injuries found no criminal convictions against police officers who injured citizens with the devices.

After storming the apartment, throwing three flashbangs and burning Treneshia Dukes, the police found a tenth of an ounce of marijuana. (Bryan Meltz for ProPublica)

After Dukes filed a formal complaint, a Clayton County Police Department internal investigators wrote in their report that officers had done “nothing wrong” the morning of her injury. In fact, the team commander was promoted. Outraged by the inaction, Dukes filed a civil lawsuit against the police in July 2012, alleging excessive use of force. “No one has ever apologized,” Dukes said in an interview. “It’s not right to feel like you can just hurt someone, and it’s OK.”


On a warm day this fall, we traveled to northeast Arkansas to throw flashbangs with one of the first Americans to make them, a ruddy-faced explosives manufacturer named Bill Nixon. He operates from two low-slung buildings off a rural highway not far from Memphis. “Cover your ears,” he said as we positioned ourselves behind earthen bunkers near the buildings. Nixon pulled the pin, and as he threw the grenade, a lever called the spoon released. A second later, the device deflagrated. Even at a distance of 30 feet, the bang was so loud that both of us involuntarily screamed when it went off.

Nixon stumbled into the flashbang business. Trained as a mechanical engineer, he got an explosives license in the ‘80s and started selling blasting caps and other explosives to local police departments. In 1988, the head of the SWAT team at the Memphis Police Department told him he was having troubling finding flashbangs. Police departments across the nation were starting their own SWAT teams to rescue hostages and storm barricaded houses. But an industry had not yet arisen to provide military-style weapons for the police. Even the Los Angeles Police Department, which founded the nation’s first SWAT team in 1966, was building flashbangs for itself by modifying military hand-grenade simulators.

Sensing a need, Nixon decided to try his hand at building a flashbang. By 1990, he had patented a device that he called the Omni Blast. He marketed his device as having less smoke than its competitors and a more spherical explosion. Pretty soon, he had customers all across the nation.

But, as flashbangs became ubiquitous, Nixon worried that departments weren’t training officers to use them properly. Reports of accidents started to trickle in. A prison guard in Nevada lost her hand when a flashbang exploded during a training exercise. And then, in 2002, an officer closer to Nixon’s home in Arkansas was injured. An Omni Blast exploded in the hand of Brandt Carmical, a North Little Rock police officer, as he conducted a flashbang demonstration for a local Boy Scout troop. It pulverized his right hand, blew out his right eardrum and perforated his left eardrum. “I saw all this flesh,” Carmical recalled. “I couldn’t hear anything.” At the hospital, Carmical’s hand was amputated at the wrist. Later, he had to go back for further surgery because black powder from the flashbang was causing his skin to rot.

Explosives manufacturer Bill Nixon, one of the first Americans to sell flashbangs, believes police should not treat flashbangs like less-lethal weapons such as tear gas. “It boggles my mind,” he said. (Andrea Morales for ProPublica)

Carmical sued Nixon, arguing that the Omni Blast was defective and exploded too quickly. Nixon said that although it is possible that his device was faulty, he suspects that the accident occurred because the spoon was prematurely released. The dispute was settled out of court for an undisclosed amount (which Carmical said allows him to forgo a second job), and no judicial determination was made about the cause of the accident.

Nixon said he stopped selling flashbangs two years after Carmical’s accident, concerned that police officers are not sufficiently trained to use them. “I realized that, let’s say this is the perfect device,” Nixon said, “it’s still going to hurt people.” In Nixon’s opinion, the police are wrong to treat flashbangs like less destructive weapons such as tear gas and sound cannons. “It boggles my mind,” he said.

Carmical, a former Marine, returned to work wearing a prosthetic with a U.S. Marine Corps logo and rejoined the SWAT team. He said the North Little Rock police have become “more selective” about flashbang deployment since his injury. Often, he said, they will set off a flashbang outside a home as a distraction, allowing officers to enter from another side of the house. When flashbangs are needed, Carmical prefers to let his teammates throw them. Being near an exploding flashbang can cause Carmical to freeze up. “It’s almost like unplugging myself for just a second,” he recalled, grateful that his fellow officers “kind of pat me on the shoulder and plug me back in.”

A flashbang pulverized the right hand of North Little Rock police officer Brandt Carmical, who now wears a prosthetic. “I saw all this flesh,” Carmical recalled. (Andrea Morales for ProPublica)

Across the river, in Little Rock, Ark., the police department is still using flashbangs on nearly every raid, according to ProPublica’s analysis. Police department records obtained by the American Civil Liberties Union, as part of its nationwide survey of police militarization, showed that between 2011 and 2013, Little Rock police tossed flashbangs into homes on 112 occasions, or 84 percent of raids — nearly all of them in predominantly black neighborhoods.

Little Rock Police Department spokesman Sidney Allen defended the practice, saying, “You may see a large number of flashbang deployments, but what we see is a large service of warrants without gunfire.” But no weapons were found at three-quarters of the homes during this period, according to department records obtained by ProPublica. Most searches yielded drug paraphernalia such as small baggies of marijuana and glass pipes. Others just turned up bottles of beer.

One Sunday afternoon in 2012, Sharon Kay Harris, a diminutive 54-year-old grandmother, was still in her church clothes getting a soda out of the fridge when police officers threw a flashbang into her kitchen. “It was very scary,” Harris said. “It’s real loud, it sounds like a gun going off.” Other officers broke down her front door with a battering ram and threw a flashbang into the living room, igniting a pile of clothing. A few weeks earlier, Harris had sold a plate of food and six cans of beer without a license, a misdemeanor in Arkansas, to an undercover officer. The officer returned on a second occasion to catch Harris in another offense: selling liquor on a Sunday. During their raid on Harris’ house, the police confiscated several cases of beer, which she freely admitted to selling along with hot dogs, nachos and fajitas.

After police threw flashbangs into the home of Sharon Kay Harris, they confiscated several cases of beer, which she freely admitted to selling along with hot dogs, nachos and fajitas. (Andrea Morales for ProPublica)

Afterward, the city of Little Rock sued Harris, alleging that her property should be declared a nuisance and “abated” — or razed — since it was being used to facilitate criminal violations. The Pulaski County Circuit Court dismissed the city’s lawsuit, but Harris was still fined $950. She could not afford the bill, so she cut grass and picked up trash at the county jail instead.

Little Rock Police Department spokesman Allen said he does not consider the force used on Harris’ home to be excessive. “If she hadn’t been selling illegal items out of the home, no warrant would have been served,” he said. “What you call extreme, we call safe.”


If there was ever a flashbang injury that might have warranted criminal charges against an officer, it would be the case of Bou Bou Phonesavanh, a 19-month-old baby who last May was nearly killed by a flashbang during a drug raid in Georgia. The case garnered national attention.

Bou Bou was sleeping in a portable playpen at the foot of his parents’ bed when the Habersham County Special Response Team broke down the door to the room and threw a flashbang. The grenade landed on a pillow next to Bou Bou’s face. The blast blew a hole in his chest, severed his nose, and tore apart his lips and mouth. The SWAT team was looking for the boy’s cousin, Wanis Thonetheva, who a day earlier had allegedly sold a bag of methamphetamine to a confidential informant on the property. But Thonetheva wasn’t there, and no drugs or weapons were found. Hours later, Thonetheva surrendered peacefully when officers knocked on the door at a nearby house where he was staying.

At the hospital, Bou Bou was placed in a medically induced coma for almost a month. He has had eight reconstructive surgeries, including skin grafts, and racked up $1.6 million of medical bills that his family cannot afford to pay. In the next few months, he will need surgery to remove black flashbang powder that embedded in his face, arms and chest before it gets infected. And because his skin grafts won’t grow as he grows, Bou Bou will need reconstructive surgery every two years for the next 20 years. His mother, Alecia Phonesavanh, said that she and her husband plan to donate their own skin for the future grafts. Bou Bou often wakes up in the middle of the night screaming and shaking and holding his mouth. “It almost seems like he’s remembering what happened,” said Alecia Phonesavanh, who has been unable to hold down a job since the accident because of the demands of caring for her son.

First designed to help military special forces rescue hostages, flashbangs create a burst of light and an ear-splitting boom that temporarily blinds and deafens anyone standing within a few feet of them. (Andrea Morales for ProPublica)

In October, a Habersham County grand jury declined to indict the officers involved. “Some of what contributed to this tragedy can be attributed to well-intentioned people getting in too big a hurry,” the grand jury wrote in its findings. The grand jury instead recommended that officers receive better training and that policy makers consider restricting the use of “no-knock” warrants, which allow police to burst into homes unannounced, often using battering rams and flashbangs. The Phonesavanhs plan to file a civil lawsuit to recover their medical expenses, which the county has refused to pay, and are hoping federal prosecutors will bring charges against the officers involved. “For us, justice won’t mean money,” Alecia Phonesavanh said. “Justice means actual consequences for the officers who caused this nightmare for my family.”

Georgia State Sen. Vincent Fort hopes the case will renew momentum for a bill he’s been pushing since 2008 that would require a higher legal standard to issue no-knock search warrants. “The likelihood of something passing has increased,” he said, acknowledging that strengthening no-knock requirements would not necessarily prevent police from throwing flashbangs after a brief knock on the door. Fort said he is also considering adding requirements for flashbang training and restricting their use to daytime hours.

Currently, there are no binding national requirements for police to be trained in the use of flashbangs. The National Tactical Officers Association, the trade group for SWAT teams, strongly advises that untrained officers not be allowed to use flashbangs. The trade group conducts its own training sessions that officers can attend (if their department can afford to send them). Most flashbang manufacturers also offer instruction for a fee. David Pearson, who runs flashbang training sessions for the trade group, said in an interview that he urges caution. “Flashbangs do have their place,” he said, “but I don’t think it’s on every mission or in every room.”

The scope of police flashbang training is sharply contested in the Treneshia Dukes case. Clayton County Police Department records obtained by Dukes’ attorney Mario Williams indicate that the department hadn’t held flashbang training in the three years prior to her injury. The manufacturers’ training manual used by Clayton County police — which devotes an equal number of pages to deploying the devices as it does to deploying legal defenses — advises officers in no uncertain terms: “Sound policy, documented training, and looking before you throw a device are the best defenses against civil or criminal claims.” Department officers testified that their general SWAT training included work with flashbangs even though it wasn’t formally recorded in department training logs.

In a deposition, Williams asked Clayton County Sgt. Scott Malette, who deployed one of the flashbangs in the apartment where Dukes and her boyfriend slept, about a previous raid that resulted in a flashbang injury. In that 2009 raid, his team encountered a closed door. As a colleague kicked it open, Malette threw a flashbang into the room. “The room was dark, and I did not identify any room occupants,” Malette had written in the police report. The flashbang landed on the bed where a man and woman were sleeping, and it burned the man’s legs and feet.

“Everyone carries a flashbang,” Malette testified. “Any time we encounter locked doors, we have an unknown, we have to gain back that initiative.”

“Were you aiming the flashbang over the bed?” Williams asked.

“Yeah, on the other side of the bed,” Malette replied.

Aim is very important in flashbang legal cases. This standard was established in 1987 when the California Supreme Court ruled that throwing a flashbang could be considered a reasonable use of force when officers “have seen fully into a targeted room.” This legal precedent means that Dukes’ case will likely turn on a narrow thread of argument. Did the police wildly throw a flashbang into her bedroom without looking, or did Dukes unwittingly run into the path of a flashbang that they had carefully aimed?

Dukes testified she was lying in bed when a circular object flew in through the window, landed on her thigh and exploded. Her account is supported by her boyfriend’s brother, who visited shortly after the raid, and the maintenance man for the apartment complex. Both testified that they saw black flashbang residue on the wall above the bed. Also on her side is a powerful piece of physical evidence: a burned red-and-black comforter under which Dukes slept at the moment of the raid.

Clayton County officials admit that at least three flashbangs were deployed during the raid that injured Dukes. SWAT commander Stephen Branham, who is a defendant in the case, testified that he was standing within view of Dukes’ bedroom window and that his team indeed broke it in an operation known as a “break and rake.” Branham said that on a previous raid his team had thrown a flashbang through a window it had broken. But during the Laurel Park raid, he testified, “I was standing there the whole time. Nobody threw a bang through that window.” According to Branham, his team deployed two flashbangs outside the apartment, and Sergeant Malette threw a third one into the front hallway after the front door had been breached. Malette testified that Dukes must have run into his flashbang. “From where she ended up and where the flashbang was and the marks and stuff on the door, with the evidence, I surmised that it was — it was actually the bang that I deployed that would be responsible for burning her in that area,” Malette said.

However, Malette also testified that the description of Dukes’ burns likely fit a scenario in which a person was hit by a flashbang while lying down.

“I would have to assume that that person was prone,” Malette said under oath.

At the time she was burned, Dukes was pregnant but didn’t know it. Sometimes she worries that her son, now 3 years old, could have been affected by the painkillers she was prescribed in the hospital. (Bryan Meltz for ProPublica)

The U.S. District Court for the Northern District of Georgia will soon decide whether to allow Dukes’ case to proceed. Dukes, now 26, has had two children with Ward and works as a package handler at a warehouse. At the time she was burned, Dukes was pregnant but didn’t know it. When she found out, she immediately stopped taking the powerful painkillers she had been prescribed in the hospital. But sometimes she worries that her son, who turns 4 in March, could have been affected by the medicine she took. Today, it bothers her that her skin is darker in the patches where she was burned. “My skin is ugly, and I feel like I’m ugly,” she said in an interview. “When I talk about it, I just get angry.”

Sometimes loud noises trigger memories of the event. One summer night after the accident, Dukes woke up in a panic. A storm was raging outside and, in her sleepy state, she confused the thunder and lightning for flashbang explosions. She ran into the bathroom once again and curled up on the floor, rocking and saying, “They’re coming, they’re coming.” Her mother found her and asked who was coming. “I said, ‘Them. Please don’t burn me again.’”

This story was co-published with the Atlantic.

Bay Area Information-Sharing – Fusion Centers

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PDF copy of Powerpoint presentation detailing Bay Area information-sharing (fusion center activities) presented at the January 8th meeting of the Bay Area UASI. Bay Area UASI is one of 39 regional UASI’s that disperse homeland security funds to cities and counties.

Information Sharing in the Bay Area

Urban Shield Reportback from January 8th UASI Meeting

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Enclosed is a PDF of the powerpoint presentation of report back in Oakland’s 2014 Urban Shield exercises and trade show presented at the Bay Area UASI (Bay Area Urban Security Affairs Initiative), one of 39 regional UASI’s that administers Homeland Security Funding to local cities and counties.

Thanks to Mike Katz-Lacabe and Susan Harman.

Urban_Shield_2014_Yellow_Command_UASI_8Jan2015

San Leandro Police Face Opposition in Push for New Armored Vehicle

MedEvac-daylight(KQED News by Andrew Stelzer – Jan 9, 2015)

San Leandro residents sounded off Thursday night about the potential purchase of an armored transport known as a BearCat, objecting to what they say is the militarization of local law enforcement

More than 100 people came out to the San Leandro Senior Center to get a look at the vehicle, called a MedEvac, which is advertised as “an armored Response & Rescue SWAT truck” and which police say will be used primarily for rescue operations throughout the region. Protesters chanted “No Thanks, No Tanks,” while police officials showed off two stretchers from the vehicle.

San Leandro police Lt. Randy Brandt called the MedEvac a “regional asset” and said it is unique in the region. He added that San Leandro used a similar vehicle for nine operations in 2013 and 2014, but had to borrow it from nearby law enforcement agencies.

San Leandro PD Lt. Randy Brandt addressing the special city council meeting
San Leandro PD Lt. Randy Brandt addressing the special City Council meeting (Andrew Stelzer/KQED)

Fremont police Capt. Kimberly Peterson said her agency would also benefit from the purchase of the vehicle, which would be used throughout the region.

“EMS doesn’t go into those hot zones. They don’t go into the danger area until its cleared, and that could be hour, ” said Peterson, a former SWAT team member. “So if you want the ability to get people in there safely, meaning your first responders, whether it’s police, fire, EMS or all three at once, then you need something like this.”

But most of those who spoke opposed the acquisition. They pointed out the numerous gun ports as an indication that the vehicle would not be used just for medical emergencies.

“Seeing that vehicle outside, it didn’t make me feel safe. It made me feel like, ‘Why am I being put in the middle of a war zone?’ ” said San Leandro High School student Elise Jones.

Several others referenced Ferguson, Missouri, where similar armored law enforcement vehicles were brought out to quell protests, but some say inflamed an already tense situation.

“That thing rolling into the front yard of someone’s house — that’s an escalation,” said Tracy Rosenberg.

“Oscar Grant died at Fruitvale Station not far from here because something escalated. Eric Garner died because something escalated. The things that we don’t want to see happen, the unjust extrajudicial murders that are tearing this country apart, happen because of the escalation of situations.”

Local High School students said they don't want San Leandro to turn out like Ferguson, MO.
Local high school students said they don’t want San Leandro to turn out like Ferguson. (Andrew Stelzer/KQED)

The BearCat would be largely funded through a $200,000 state homeland security grant.  San Leandro Mayor Pauline Cutter said guidelines would be established before a decision is made at a February City Council meeting.

“What I wanna do is make sure that we have a policy out before we use it, and people can see what it’s used for — we’re not gonna use it every day — and weigh in on it,” Cutter said.