Police Facilitation of Mass Protests

OLA#: 013-03

LEGISLATIVE ANALYST REPORT

TO: Honorable Members of the Board of Supervisors

FROM: Willow Schrager, Office of the Legislative Analyst

DATE: September 5, 2003

SUBJECT:Police Facilitation of Mass Protests (File No. 030635)

SUMMARY OF REQUESTED ACTION

A motion (introduced by Supervisor Hall) requesting the Office of Legislative Analyst (OLA) to compare and contrast the laws, regulations and policies of San Francisco, Seattle and New York City for facilitating mass protests.

EXECUTIVE SUMMARY

In most areas the San Francisco Police Department (SFPD) appears to have similar policies and procedures as both the Seattle Police Department (SPD) and the New York Police Department (NYPD). First, the general principles guiding police response to citizen unrest in all three cities are nearly identical. Police departments in all three cities strive to ensure that First Amendment rights are protected, that police involvement will be only as extensive and necessary to protect citizens and the community, and the needs of law enforcement. Second, the appropriate ratio of police officers to protesters does not have a straightforward answer, and neither Seattle nor New York uses any type of formula. In this regard it does not appear that either of these cities has a superior policy than that in San Francisco. Third, with respect to crowd control, the SFPD may want to investigate New York's use of "pens" to contain demonstrators and Seattle's use of "force multipliers" (trained volunteers used to multiply the police force) to determine if they are appropriate for San Francisco. Fourth, if San Francisco wishes to prosecute a greater number of arrested demonstrators, using some of the New York's tactics for recording complete and accurate information at the time of arrest may help, such as immediate consultation from a supervisor and legal council. Notably, all three cities tend to drop charges against most demonstrators.

Lastly, SFPD has received considerable scrutiny over the high costs of the anti-war demonstrations. However, given the size of the San Francisco protests, the extent of the unrest, and the number of arrests, it appears that San Francisco's costs are in line with those of Seattle and New York. Neither Seattle nor New York appears to have any policy or procedure that leads to a reduction in police department costs.

FACILITATION OF MASS PROTESTS

Overview of General Policies

The anti-war demonstrations in San Francisco during March 2003, led to the arrest of more than 2,300 protesters. In the aftermath of the demonstrations, several Supervisors raised concerns over the procedures used to facilitate the protests as well as the costs incurred by the City, particularly due to the expense of police overtime. This report will compare the policies of the San Francisco Police Department (SFPD) with the jurisdictions of Seattle and New York City in order to ascertain any potential improvements to the current SFPD policies for facilitating mass protests.

The general principles guiding police response to citizen unrest are nearly identical for the police departments of San Francisco, New York City, and Seattle. All three state that it is the policy of the police department to ensure that First Amendment rights are protected, that police involvement will be only as extensive and necessary to protect citizens and the community, and the needs of law enforcement.

New York Police Department (NYPD) officials stressed that they are bound to impartially protect First Amendment rights, but that these rights apply not only to the protesters. The Department acts to protect the rights of everyone affected, including pedestrians and businesses. Therefore, officers attempt to balance the rights of demonstrators with the rights of average citizens. For example, during anti-war demonstrations that occurred in New York on March 15^th, First, Second and Third Avenue businesses suffered due to the curtailment of commerce once protesters took over the streets. At the next scheduled rally, police ensured that the sidewalks were kept clear, which allowed businesses to remain open. San Francisco follows similar procedures.

Ratio of Officers to Protesters

Some questions have arisen at Board of Supervisors meetings as to whether too many officers were used during the anti-war demonstrations, and whether the same security and crowd control could have been achieved with fewer officers and thus less overtime expense. The ratio of the number of officers to protesters is both a policy and a fiscal issue. Too many police officers can intimidate a crowd and create a chilling effect on protesters. There is no documentation to suggest that this happened during the March protests. However, the greatest expense San Francisco incurred as a result of the anti-war demonstrations was from the accrual of hundreds of overtime hours by police officers. In fact, SFPD overtime costs as of April 16, 2003, totaled $2,068,531.¹ This number demonstrates the importance of not overstaffing mass protests, while at the same time ensuring that sufficient law enforcement is available.

However, the appropriate ratio of police officers to protesters is not a question with an easy answer. The San Francisco Police Manual on Crowd Control states that "What is needed is an adequate ratio of officers of different ranks all the way up the supervisory ladder. In extremely volatile circumstances it may be necessary to assign one sergeant to each four officers and one lieutenant to each four sergeants, etc."²

The following example from NYC shows that there are no set formulas for determining the ratio of officers to demonstrators. The number of officers depends entirely on what is expected at the event. Organizers of the first anti-war demonstration in New York City anticipated 50,000 to 60,000 participants. The actual turnout was closer to 120,000. There were 5,000 to 7,000 police officers there to handle the crowd. The second demonstration drew over 100,000 demonstrators, but only 1,500 officers were used. The significant difference in the ratio of protesters to officers was possible because the organizers of the protest promised that the demonstrators would be cooperative. Similar logic is used for non-protest activities: when the Philharmonic played in Central Park, there were approximately 30,000 spectators and 60 officers (a ratio of 500:1); when Garth Brooks performed there were 100,000 fans and 1,000 police officers (a ratio of 100:1); during the New Year's Eve celebrations in Times Square, there are approximately 100,000 people in the streets and 4,000 to 5,000 police (a ratio of 20:1).

The Seattle Police Department agrees that there is no scientific formula. Officials at the SPD explain that it depends on the type of event, time of day, day of week, type of crowd or audience expected, the history of the organizers, whether or not alcohol is allowed, and a myriad of other issues that determine how many officers they will use.

Methods of Crowd Control

There has been little criticism in the press, by the Board of Supervisors or the general public regarding the crowd control measures employed by the SFPD. The SFPD is not known to have used excessive violence, nor violated First Amendment rights when exercised legally. Policies of the Department for management of lawful assemblies include: identifying and meeting with organizers in the days before the assembly is to occur; collecting and evaluating flyers and other types of information gathered about the event; ascertaining past behavior of the specific group involved, to the extent permitted by Department intelligence policies; and establishing contact with the crowd early. If the gathering portends unlawful behavior or violence, the police will plan for crowd control measures including: isolating the crowd; showing a display of police officers; making selective arrests; making multiple arrests; giving orders to disperse; ensuring crowd dispersal.

The NYPD employs similar tactics, although they use the strategy of penning demonstrators. At all events with large crowds, the Department makes barrier pens. Their rationale is that doing so allows officers to patrol the inside of the crowd, facilitates easy movement of ambulances and fire trucks through the area, and allows the police to monitor the conduct of the crowd more closely. During the recent anti-war demonstrations in New York, the process occurred as follows: pens were set up in midtown from 50^th Street northward. As the pens at 50^th and 51^st Streets filled, protesters were directed to the 54^th Street pen. The pens are fed from side streets and as they fill people are directed to pens further north.

Seattle uses techniques more similar to San Francisco, and chooses not to pen demonstrators. Seattle officers agree that creating an outside perimeter to certain gatherings allows officers to search participants' bags, which helps with crowd management. When there are big parade routes, the SPD places as many officers as they can along the route. They also use "force multipliers," which are trained volunteers used to multiply the police force. Force multipliers typically supervise bag searches, according to SFD officials. Seattle reports that their most effective strategy is to work with the organizers of an event, and to get the word out early to the public about what is going to be tolerated and what is not. Seattle also believes strongly in learning from the experiences of other cities.

Notably, the SFPD experimented with "pens" at Union Square on New Years Eve 1999. It was the first time pens were used in San Francisco and they were ineffective, according to SFPD staff. New Years revelers did not want to stay in fixed locations and would move between pens or cause problems such as vandalism just outside of the penned areas. Moreover, the Department regularly uses "monitors" (similar to force multipliers) for parades and some protests to assist with crowd control. SFPD staff advised the OLA that monitors are typically volunteers associated with a particular event or organization. They are not police volunteers, as is the case in Seattle. If the City chooses to use police volunteers, they would inevitably need to be trained in crowd control strategies. This would be an additional cost to the City. According to SFPD staff, another factor to keep in mind is the possibility that monitors would not show up to unscheduled and even scheduled events, in which case the Department's ability to manage those events would be negatively impacted.

Process for Mass Arrests

In April 2003, at least one Supervisor voiced apprehension about the possibility that a number of citizens were falsely arrested since they were not breaking the law.³ Several individuals who were arrested claimed that they were simply observers or just passing by, and that the crowd received no order to disperse. Without debating the validity of these claims, it is clear that procedural and fiscal concerns surrounding mass protests converge when considering the possibility of false arrests. False arrests can ultimately end up being costly to the City, given that in previous cases protesters have successfully sued the City under such circumstances. For example, in 1998 a group of 374 people won a settlement of $1 million after protests surrounding the acquittal of four Los Angeles police officers in the beating of Rodney King. In 1996, the City lost 34 small claims judgments of $1,000 each for false arrests during a Critical Mass protest. Ensuring that the SFPD is using the best practices available to avoid false arrests will not only protect the civil rights of San Franciscans, but also save the City money.

Official procedure for multiple arrests by the SFPD are as follows: "A specialized group of officers working together during large-scale arrests at major public events will be responsible for all aspects of the arrest process from the point of arrest to the delivery of prisoners to the Sheriff's Department. In that way, the chain of identification is not broken, and officers managing the event will not be taken from `the line,' weakening it." These specialized arrest groups consist of several personnel: an arrest group leader; two (or more) officer arrest teams; two photographers; a booking recordation officer; one or more two-officer transportation teams; one or more receiving officers at the County Jail or other booking area.⁴ Arrest teams are instructed to make arrests only "for specific violations of the law."⁵

Once a civilian is arrested, two Polaroid photos are taken of the detainee. One photograph is given to the transporting unit, and the other is kept by the arresting officer who is designated to complete the police incident report.⁶ The arresting officer must sign the photograph with his or her name and star number in order to ensure accurate information can be provided to the District Attorney's Office.

During the anti-war demonstrations in New York, the NYPD also used mass arrests. The first major protest resulted in over 200 people arrested. The second major protest, despite being more peaceful overall, also resulted in mass arrests. Demonstrators marched to Washington Square Park, and since no rally was scheduled after the march, most of the demonstrators dispersed. However, some protesters described by the NYPD as "radicals and anarchists," did not leave the scene and eventually between 130 and 150 of them were arrested.

NYPD's policy is to make immediate arrests upon any violation of the law. As the Head of the Disorder Control Unit explained, "We don't tolerate any lawlessness. We don't back off. We used to allow demonstrators to blow off some steam, but in Crown Heights [in 1991] that got out of control and led to two days of riots, and the police were really criticized. So now we don't tolerate any lawlessness or let the crowd get too unwieldy so that pedestrians can't get through."

During arrest processing in mass arrest situations, the NYPD makes sure that an arrestee accompanies the arresting officer to a mobile facility for verification. The mobile facility is in a central location but away from the main area of unrest. Each arrest must be verified by a supervisor as well as a representative from a legal team. This prevents situations in which the validity of the arrest could be called into question. The representative from the legal team must verify the legality of the arrest, which helps minimize circumstances arising after an arrest in which the arresting officer reveals that he or she did not actually see any violation of the law occur, but was instructed to make the arrest by a captain, or any other situation that could lead to accusations of false arrest or insufficient evidence for prosecution. At the mobile facility, arrested protesters are consolidated into paddy wagons that fit 20 to 30 people and taken to a station for booking.

The Seattle Police Department will make an arrest whenever an officer observes behavior that will put another person in danger. The recent anti-war demonstrations in Seattle did not lead to mass arrests. Seattle has not employed mass arrests since the 1999 protests surrounding the meeting of the World Trade Organization. During those protests approximately 600 arrests were made over the course of 4 days.⁷ The SPD stresses that a police department cannot anticipate if it will need to use mass arrests, and it should always be kept as an option. However, the SPD believes that it is usually more effective tactically to focus law enforcement efforts on particular individuals who may lead others into criminal misbehavior. While mass arrests are time-consuming and overwhelm the system, securing the arrests of a few protest leaders can be very effective at quelling a protest.

In the recent demonstrations, the SPD encountered few problems with the large permitted marches. One of the largest protests drew 18,000 or 19,000 participants (organizers predicted 25,000), and only one arrest was made, of a man who began to graffiti property. The SPD had plain-clothed officers on the perimeter and uniformed officers infiltrating the crowd, and there was little to no lawbreaking.

Like New York and San Francisco, the Seattle Police Department uses prisoner processing teams commanded by a Lieutenant. These are broken down into five or six smaller teams, each headed by a Sergeant. Each person in the team has a responsibility to record and process arrests. The arresting officer must accurately identify the crime violation at the time of arrest by writing a short note, and give it to the processing officer who records the information on a generic booking form, takes a photo, and directs the arrestee onto a bus. After the demonstration is over, the officer who first made the arrest reports to the station and completes a supplemental statement detailing "everything he saw and heard." The SPD admits that they did not implement this process well during the 1999 WTO protests, but believes that they now use the process effectively. However, the process is very labor intensive, according to SPD officials.

Prosecution

Misdemeanor charges against nearly all of the 2,300 individuals arrested during the anti-war protests in San Francisco were first reduced to infractions and then dropped altogether. The rationale for this was based primarily on the fact that prosecution of all 2,300 threatened to overwhelm the court system. In addition, prosecution would require expensive jury trials with court-appointed defense attorneys, and San Francisco does not have a history of winning such cases. In approximately 25 cases that involved vandalism and violence, police were able to identify the suspects and their crimes. These individuals were charged and sent to trial. Notably, approximately 150 cases were dismissed because of inadequate police reports. The District Attorney's Office reported that police had difficulty trying to clear the streets and simultaneously gather proper documentation and evidence necessary for prosecution: "Just prior to a hearing in late June, the police notified us that the infractions could not be `substantiated by the incident reports or independent recollection.' Specifically, the police said they were unable to identify exactly where individuals had been arrested."⁸

If San Francisco wishes to prosecute a greater number of arrested demonstrators, using some of the NYPD's tactics for recording complete and accurate information at the time of arrest may help, such as immediate consultation from a supervisor and legal council, and having the arresting officer accompany the arrestee to the processing station. However, such tactics would mean that the arresting officer would have to leave the line of duty, which current SFPD procedures explicitly try to prevent. In addition, even in New York, few demonstrators are prosecuted, although this is usually for political rather than procedural reasons. The NYPD reports that almost all arrests from protests are summarily dismissed, even if the defendant is pleading no contest, simply because New York is a liberal city and judges will not support the arrests. The Assistant Chief of the Seattle Police Department described a similar climate in Seattle. SPD officials stated, "It is sometimes a political decision about whether to go forward and prosecute protesters or not."

Cost Estimates

The overtime costs incurred by the San Francisco Police Department as of March 16, 2003 totaled $2,068,531. An additional $62,995 was spent on materials and supplies, $3,900 on the mass arrest facility, $1,919 on portable toilets, sinks, and heaters, and $32,105 on food for on-duty officers.

The NYPD reports that overtime expenses for the Department were approximately $5 million for the first protest on March 15^th, and $2 million for the second protest on March 21^st. These expenses are for overtime pay to police officers only, and do not include regular salary costs, expenses due to lawsuits, or any other costs resulting from the demonstrations. Each arrest made by the NYPD cost the Department approximately $5,000 in legal fees.

The anti-war demonstrations cost Seattle $1.3 million strictly in police overtime, not counting meals, booking fees, or court expenses.

The above numbers are of particular interest in light of the intense scrutiny the San Francisco Police Department has received over the high costs of the anti-war demonstrations. Given the size of the San Francisco protests, the extent of the unrest, and the number of arrests, it appears that San Francisco's costs are in line with those of Seattle and New York. Neither Seattle nor New York appears to have any policy or procedure that leads to a reduction in Police Department costs.

Cost Recovery from Arrestees

After the anti-war demonstrations in San Francisco, one Supervisor publicly considered the possibility of recovering some of the costs from those who were arrested. For comparison, the Disorder Control Unit of the NYPD has never attempted this type of cost recovery, and believes that it would most likely lose a court challenge, at least in New York, because such a policy would make a few pay for the expenses brought on by many participants. New York officers explained that even Philadelphia, who they described as being much harsher on protesters, is not attempting to enact monetary fines. The Seattle Chief of Police also reports that they have never attempted to recover costs from demonstrators.

CONCLUSION

In most areas the San Francisco Police Department appears to have similar policies and procedures as both the Seattle Police Department and the New York Police Department. The general principles guiding police response to citizen unrest are nearly identical for the police departments of San Francisco, New York City, and Seattle. All three state that it is the policy of the police department to ensure that First Amendment rights are protected, that police involvement will be only as extensive and necessary to protect citizens and the community, and the needs of law enforcement.

There has been little criticism in the press, by the Board of Supervisors or the general public regarding the crowd control measures employed by the SFPD. The SFPD is not known to have used excessive violence, nor violated First Amendment rights when exercised legally. The only differences between the policies of the NYPD and SPD regarding crowd control are New York's use of pens to contain demonstrators, and Seattle's use of "force multipliers," trained volunteers used to multiply the police force. The SFPD may want to investigate these techniques further to determine if they are appropriate for San Francisco. As mentioned earlier, the Department has experimented with both pens and force multiplier-like volunteers and has achieved mixed results.

The San Francisco Police Department has received considerable scrutiny over the high costs of the anti-war demonstrations. However, given the size of the San Francisco protests, the extent of the unrest, and the number of arrests, it appears that San Francisco's costs are in line with those of Seattle and New York. Neither Seattle nor New York appears to have any policy or procedure that leads to a reduction in police department costs.

¹Memo from Alex E. Fagan, Acting Chief of Police to Gloria L. Young, Clerk of the Board. Reference #20030325-041. These costs do not include the expense of on-duty police officers detailed to the events, nor does it include deferred costs of officers who have chosen to take compensatory time in-lieu of overtime pay.

²San Francisco Police Department, Crowd Control Manual, p. 8-9.

³Rachel Gordon, "Police Defend Tactics, Expense for Protests," San Francisco Chronicle. Friday, April 11, 2003.

⁴San Francisco Police Department, Crowd Control Manual, p. 36.

⁵Ibid., 37.

⁶San Francisco Police Department, Crowd Control Manual, p. 38-9. See Appendix A for Incident Report Checklist.

⁷In San Francisco, over 600 people were arrested in 30 minutes during demonstrations on March 21^st.

⁸Terence Hallinan, "Why I Dropped Charges Against Protesters," San Francisco Chronicle. Tuesday, July 15, 2003.

Police Facilitation of Mass Protests

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