OFF THE WIRE
How to Deal with Discriminatory Police Surveillance
If
you are a member of a motorcycle club or associate with motorcycle
clubs the chances are that you have been the subject of law enforcement
surveillance for no other reason than your affiliation with motorcycle
clubs. For the purpose of this article we will refer to this type of
surveillance as hostile surveillance. I have been part of the
motorcycle club community for over 16 years and during that time I have
been surveilled by every major federal law enforcement agency, numerous
state and local law enforcement agencies, state Gaming Commission and
even tribal police and Colorado Parks & Wildlife officers.
For years law enforcement has made it standard practice to surveil
motorcycle club parties and events, funerals, runs, COC meetings, etc.
the sole purpose of which is to gather intelligence on what they
consider members of criminal organizations. Since the 2015 Waco
incident we have seen increased incidents of law enforcement
surveillance of motorcycle club members in New York, Idaho, Arizona and
California just to name a few states. For many involved in the
motorcycle club world this hostile surveillance has just become an
annoying and invasive part of our lifestyle that we tolerate and tell
anecdotal stories about because most don’t know what can be done to stop
it. This article will address what our community, the motorcycle club
community can do to counter, deter and stop this type of law enforcement
harassment.
The
most effective way to counter and stop this type of hostile
surveillance by law enforcement is to pass legislation that specifically
addresses motorcycle profiling. In 2011, Washington State became the
first state in the country to pass a law addressing motorcycle
profiling:
R.C.W. 43.101.419. “Motorcycle profiling” means the illegal use
of the fact that a person rides a motorcycle or wears motorcycle-related
paraphernalia as a factor in deciding to stop and question, take
enforcement action, arrest, or search a person or vehicle with or
without a legal basis under the United States Constitution or Washington
State Constitution.
A law such as the one passed in Washington ties the hands of law
enforcement and forces them to limit their investigation and
surveillance to instances where there is sufficient legal probable cause
to believe that a crime is occurring or is about to occur. While law
enforcement surveillance of motorcycle club members was a regular
occurrence prior to the passing of the motorcycle profiling law, since
the law has taken effect there has been almost no surveillance of
motorcycle club related events in Washington State. Obviously
legislation is the most effective way to counter hostile surveillance
but to pursue legislation you need a persuasive pattern of motorcycle
profiling evidence which in the case of hostile surveillance can be
accomplished through the use of counter surveillance to obtain
photographs of law enforcement surveilling you, demonstrating a pattern
of harassment.
In
2011, I was at the Four Corners Rally in Colorado speaking about this
very topic when a club member came into the conference room and notified
us that the police had surrounded the parking lot of the conference
center and were taking photographs of the people and motorcycles in the
parking lot. I grabbed my SLR camera with a huge telephoto lens and
headed out into the parking lot to find over 20 law enforcement officers
from various federal, state, local, and tribal law enforcement agencies
taking photos of us. I stood in plain view and began taking
photographs of the law enforcement officers who were taking photos of
us. I photographed the officers, their vehicles and license plates.
Just as we find hostile surveillance incredibly invasive and
uncomfortable so does law enforcement and they all immediately left the
scene, I had essentially chased them off with my camera and counter
surveillance and we remained surveillance free for the remainder of the
event. But is it legal to photograph law enforcement in public?
The
recent precedent setting case that clarifies whether it is legal to
photograph police is Manny Garcia v. Montgomery County, MD. In this
case, journalist Manny Garcia was arrested and charged with disorderly
conduct for photographing police as they detained two men in Maryland.
In this case, the Department of Justice filed a Statement of Interest
in the case upholding the right of individuals to photograph police
under the First, Fourth and Fourteenth Amendments to the U.S.
Constitution. The D.O.J. argues that not only do individuals have a
First Amendment right to film officers publicly doing their duties, they
also have Fourth and 14th Amendment rights protecting them
from having those recordings seized without a warrant or due process.
In fact in their statement the D.O.J. stated that the United States is
concerned that discretionary charges such as disorderly conduct,
loitering, disturbing the peace and resisting arrest are all too easily
used to curtail expressive conduct or retaliate against individuals for
exercising their First Amendment rights. Core First Amendment conduct,
such as recording a police officer performing duties on a public street,
cannot be the sole basis for such charges. Federal appellate courts
have upheld a First Amendment right to record police in numerous cases
from around the country and many of them were cited by the Justice
Department in their statement in the Garcia case. So yes, it is legal
to film police in public.
Now,
let’s say you’re at an event that is under law enforcement
surveillance, you take several photographs that documents the
surveillance, the police leave the scene, what next? Keep the photos or
video in an organized file, note the event, date, time, duration of
surveillance and law enforcement agencies involved. Then file a public
records request with all the agencies involved requesting copies of the
photos/video that they obtained during their surveillance, any police
reports, CAD reports, officer log book entries and radio traffic
associated with the operation. By following up your counter
surveillance with a public records request you will obtain additional
photos, documents and radio traffic that may help you establish that you
were being unfairly and unnecessarily targeted by law enforcement and
will help you build your pattern of evidence. Have all your evidence
reviewed by your Confederation of Clubs/Council of Clubs attorney to
evaluate for any civil rights violations and whether or not litigation
is warranted. If your state is in the process of pursuing motorcycle
profiling legislation make the key people in that movement aware of the
evidence of profiling you have and make it available to them for use in
building their pattern of evidence. If your state is not currently
pursuing motorcycle profiling legislation, you can send a copy of your
evidence to us at the Motorcycle Profiling Project and we will store it
for later legislative use in your state.
Hostile law enforcement surveillance is common in the motorcycle club
community, however it does not have to be an accepted part of our
lives. Through the use of motorcycle profiling legislation, proactive
counter surveillance and public records requests we can turn the tables
on law enforcement and severely restrict or put an end to hostile
surveillance of our community.
