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BART's Police Auditor & Citizen Review Board: Uninspiring or Simply Appalling on Mobile Shutdown?
On September 2nd, BART's new supposed police watchdogs -- their "independent" auditor and 11-member citizen review board -- held their first meeting on a substantive topic. They assembled at the direction of the BART Board of Directors to examine the deliberate shutdown of mobile phone antennas in underground stations on August 11th. Looking at it in the most generous light possible for anyone who cares about police accountability, the meeting did not inspire confidence that either the auditor or the review board will ever take any sort of confrontational stance against BART's inept, reckless, and corrupt police force, or the agency as a whole. Perhaps they may some day, but no sign of that was evident at this meeting -- and they have the much more serious matter of the BART police killing of Charles Hill before them now. In a less generous light, the meeting was simply appalling on a number of levels, from statements made by various members to the disinterest shown toward actually stopping malfeasance. The auditor and review board appear to believe their raison d'etre is to provide cover for the wrongdoings of BART rather than to hold BART police and officials accountable for violations of policy or law.
[Pictured above: Citizen Review Board members Peter Barnett, George Perezvelez (chair), Sharon Kidd (vice chair), William White, Les Mensinger, and Benjamin Douglas. Sukari Beshears has a nameplate, but is not present.]
The meeting began with open public comment from the only two people not employed by BART who were present, the first being Edward Hasbrouch of The Identity Project who demanded action from the Citizen Review Board for the illegal "vigilante" actions of BART by shutting down mobile phone antennas on August 11th. Hasbrouch demanded that those responsible for the decision be held legally responsible, including police chief Kenton Rainey who took ownership for the decision at the BART Board of Directors meeting on August 24th. Having violated federal criminal law, Hasbrouch says that BART cannot now absolve itself. Yet that is what the draft policy proposed by BART's general counsel outlines (see PDF below), which includes no mention of seeking outside consultation or authority. Hasbrouch emphasizes that in the future BART either needs to go to the courts or the FCC with a petition for a temporary emergency permission to shut down mobile phone service or the agency could try to present a defense of necessity to a federal jury once criminal charges have been filed after the fact. The review board follows up with questions that largely dwell on the hypothetical scenario in which shutting service would somehow prevent a bombing in the BART system and the agency does not have enough time to petition relevant authorities beforehand. George Perezvelez, the review board chair, asks if Hasbrouch was making a formal legal complaint with the review board, and Hasbrouch affirms that he is.
This reporter's public comment emphasizes the need for BART to rely on the proper governing authorities such as the CPUC and the FCC regarding mobile phone disruptions, not hypotheticals about potential bombers on trains or in stations. A bombing is not why BART shut down phone service on August 11th. The worst case scenario of what has happened at demonstrations thus far is that people have disrupted service. War criminals such as Cheney, Bush, and Rumsfeld wrongly used the pretext of the "ticking time bomb" to justify their illegal torturing of countless people. The review board is encouraged to take this matter seriously, because as one of their first tasks, the community will be watching to see if the board appears to be following the law. BART is not its own country and cannot make up its own laws. If the community sees the review board not doing its job, that is holding BART accountable, the board will be seen as whitewashing BART malfeasance.
At about twenty-four minutes into the meeting, the review board takes up the related agenda item: "Recommendation to BART board of directors regarding interruption of cellular service." George Perezvelez says that the review board does not have the time, energy, or legal know-how to create a thorough policy on the matter and suggests that the review board create a list of recommended points instead. It is accurate of him to defer to the elected BART board of directors to actually set and implement policy, but it is seriously troubling that Perezvelez seems to feel that it is out of the purview of the review board to have a familiarity with the law and confidence to report when BART runs afoul of it. How exactly that squares with the review board's mission to hold BART police accountable for violations of policy and/or law is unknown.
Equally disturbing is Mark Smith, the new "independent" auditor, who asserted that the board should not consider violations of the law by chief Rainey or others, and that in such matters the review board should defer to BART general counsel. These assertions are seriously problematic. First, Mark Smith is not superior to the review board in status and it is not his place to push the review board in any manner, although at the meeting he presented himself and his ideas as if the review board was subordinate to him. Secondly, there will be no independence whatsoever by the review board, or the auditor, if they are to take direction from or even defer to BART's legal staff. When has BART legal staff ever suggested that BART police or other employees be held criminally liable for their actions? Yet that is the specific mandate of the auditor and review board, to provide a new level of oversight for BART police and to make specific recommendations for discipline or policy changes to the BART board of directors. [These comments were made in person by this reporter to Smith after the conclusion of the meeting.]
Beyond the negligence or complicity of BART's legal staff in the numerous instances of killings and beatings by BART police over the years, more recently BART's general counsel sat idly by and raised no objections when the disruption of phone service in underground stations to thwart a rumored protest was proposed, discussed, and agreed upon by top-ranking BART police, administrative staff, and members of the board of directors. BART's legal counsel has continued to assert the legality of the phone disruption since and, indeed, suggests that BART continues to have the independent authority to shutdown phone service in the future in their cell phone interruption policy draft (see PDF below).
Citizen Review Board members pay homage to constitutional rights but clearly lean toward allowing BART officials express permission to continue to shut down antennas for a wide range of reasons, albeit with stricter contingencies before they do so. Ben Douglas suggests that any decision to cut service needs to be a group decision, and that it has to be about physical danger not just the annoyance of a flash mob that chants "we hate the police." But, as with most members, he asserts that a crowd jumping on trains and breaking windows would merit a mobile phone disruption. Les Messinger seems to think that putting up signs in stations that read "BART reserves the right to shut cell pone service" would relieve BART of its obligations toward the U.S. Constitution and regulatory agencies. Messinger adds that he believes part of the problem was that there is no spokesperson for the police who could have explained the shut down to the public (of course BART completely lied at first about the shutdown and continued to do so). William White, the member most obviously opposing to the shutdown, says that turning off phone antennas was a knee-jerk reaction for BART, and that the ACLU made a strong argument for freedom of speech, although he indicated he was still open to compromise. Peter Barnett notes that BART had used language about having "credible" evidence, and he proposed using "credible" and "reliable" in the future. He says that what's missing is a review of the process. What intelligence? Was the decision effective? Oddly, however, though, he declares that the review board's job is not to determine the law, and that the review board can help adopt a policy even while ignorant of the law. Douglas Hambleton says that BART's general counsel needs to create or hire out attorneys to lay out the law and precedent on this matter, the agency and the review board needing specialized advice. Peter Barnett says that on short notice of impending events, BART must rely on internal lawyers and police. George Perezvelez, chair of the review board, tries to push the review board to reach consensus by summarizing what he says are the main points other members have made toward their recommendations for the BART board of directors. William White does not want to make recommendations at the meeting without further sources of information. He says that the review board seems intent on creating a policy allowing phone shutdowns rather than debating the shutdown itself. The opinions of the ACLU and FCC should be weighed in. He adds that the review board is ignoring one whole side of the issue. Other members feel that their job is to simply make it somewhat harder to cut mobile phone service in the future. Sharon Kidd says that she feels like the review board was tasked with assisting the agency on how to shut down phone service in the future without stirring up so much criticism of the agency.
Due to the objections raised by William White, Edward Hasbrouch, who had spoken earlier, is brought back into the conversation. He declares that BART seems to want authority it does not have, to purportedly deal with a situation it has never faced. William White is able to secure a friendly amendment to the main points summarized by George Perezvelez, that clarification is needed on exactly what authority BART actually has to disrupt phone service and that if there is time before any future shutdowns, a judge, the FCC, and/or the CPUC should be contacted for approval.
During the creation of what was originally called the Police Oversight Board and Independent Auditor, from start to finish, the game was rigged against oversight at BART having real teeth (see links below). With this in mind, it is critical that the auditor and the citizen review board as they exist -- created in response to tremendous public pressure for accountability in the BART police department after the murder of Oscar Grant -- use what authority it has been granted as vigorously as possible.
The eleven members of the Citizen Review Board are:
- Sue Angeli - Pleasant Hill (appointed by the BART Police Officers' Association)
- Peter D. Barnett - Oakland (appointed by Robert Raburn, District 4: Coliseum/Oakland Airport, Fruitvale, Lake Merritt, 12th Street/Oakland City Center [partial], 19th Street [partial])
- Sukari Beshears - Pittsburg (appointed by Joel Keller, District 2: Pittsburg/Bay Point)
- Benjamin L. Douglas - Lafayette (appointed by Gail Murray, District 1: Concord, Lafayette, North Concord/Martinez, Orinda, Pleasant Hill, Walnut Creek)
- Douglas N. Hambleton - Danville (appointed by John McPartland, District 5: Castro Valley, Dublin/Pleasanton, West Dublin/Pleasanton)
- Ken Jones, San Francisco (appointed by James Fang, District 8; Balboa Park, Embarcadero [partial], Montgomery [partial], Powell Street [partial])
- Sharon Anne Kidd - Berkeley (appointed by Lynette Sweet, District 7: Ashby, El Cerrito Del Norte, El Cerrito Plaza, MacArthur, Richmond, West Oakland, 12th Street/Oakland City Center [partial], 19th Street [partial], Embarcadero [partial], Montgomery [partial])
- Les Mensinger - Fremont (appointed by Thomas Blalock, District 6: Fremont, South Hayward, Union City)
- George D. Perezvelez - Berkeley (appointed by Tom Radulovich, District 9: 16th Street Mission, 24th Street Mission, Glen Park, Civic Center, Powell Street [partial])
- William C. White - Oakland (appointed by Bob Franklin, District 3: Bay Fair, Downtown Berkeley, Hayward, North Berkeley, Rockridge, San Leandro)
- Jennifer Scaife - Berkeley (At Large, appointed by the entire board of directors)
Overview of the development of civilian police oversight at BART:
Second (and Last?) Truly Public BART Meeting on Police Oversight, 5/15/09: audio
BART Police Oversight Subcommittee Stacked Against Real Civilian Oversight, 6/1/09: audio
BART Inches Toward True Civilian Oversight But Don't Hold Your Breath, 6/8/09: pdf & audio
Town Hall on BART Police Oversight, Mehserle, Obama, Racial Disparities, 7/25/09: audio
BART Public Hearing on Flawed Draft Police Oversight Plan, 7/30/09: audio
BART Going Forward with Seriously Flawed Police Oversight Plan Created Behind Closed Doors
BART Anxious to Wrap Up Police Oversight Plan at Final Subcommittee Meeting, 8/10/09: audio & PDFs
BART Police Oversight Vs. Every Cop Union in the State; Police Chief Gee Out; and a Rumor
Town Hall on BART's Lobby of State Legislature for Their Police Oversight Plan, 8/22/09: audio
BART Uses Faux "Community" at Press Conference to Attack Ammiano for BART's Own Failures: audio and photos
Community Demands Action at BART Board Meeting; BART Lies Yet Again, 8/27/09: video and audio
Justice for Oscar Grant Outreach on East Bay BART Trains: video / BART Police Oversight Plan Dead
Governor signs bill (AB 1586) into law authorizing citizen oversight of BART Police
AB 1586 became effective in January of this year and BART's Auditor and Citizen Review Board held their first meeting on July 12th (http://www.indybay.org/newsitems/2011/07/23/18685785.php).
For more information:
BART planning further interference with common-carrier services:
The Identity Project:
Note the text at the end highlighted by this reporter in the PDF about "disruption of services" -- which is exactly why BART pre-emptively shut down mobile phone service on August 11th, not because of any true safety concerns. BART's attorneys are not stepping away from the agency's position to date that their shutdown was legal and that they want to assert their right to do it again for the same reasons.
DRAFT-FOR DISCUSSION PURPOSES
Proposed Cell Service Interruption Policy
The San Francisco Bay Area Rapid Transit District (the "District") recognizes
that the availability of equipment inside the District's system facilitating cellular
'communications in its stations and trains (the "System Cellular Equipment") is a
valuable and important service to District passengers, especially persons with
disabilities, that should be interrupted only in the most extraordinary
circumstances that threaten the safety of District passengers, employees and other
members of the public, the destruction of District property, or the substantial
disruption of public transit service.' The District is also fully committed to its
long-standing policy of allowing the exercise of First Amendment rights of
expression in the areas of its stations where it can be done safely and without
interference with the District's primary mission of providing safe, efficient and
reliable public transportation services.
In accordance with these principles, it shall be the policy of the District that the
District may implement a temporary interruption of operation of the System
Cellular Equipment only when it determines that there is strong evidence of
imminent unlawful activity that threatens the safety of District passengers,
employees and other members of the public, the destruction of District property,
or the substantial disruption of public transit services; that the interruption will
reduce the likelihood of such unlawful activity; that such interruption is essential
to protect the safety of District passengers, employees and other members of the
public, to protect District property or to avoid substantial disruption of public
transit services; and that such interruption is narrowly tailored to those areas and
time periods necessary to protect against the unlawful activity. Any such
interruption shall include measures to ensure the rights of the disabled to
information and assistance.'
Illustrative examples of such circumstances include, but are not limited to, strong
evidence of use of cell phones (i) as instrumentalities in explosives; (ii) to
facilitate violent criminal activity or endanger District passengers, employees or
other members ofthe public, such as hostage situations; and (iii) to facilitate
specific plans or attempts to destroy District property or substantially disrupt
public transit services.
Nothing herein is intended to restrict the District's ability to implement a temporary interruption of the
operation of the System Cellular Equipment for maintenance or other operational reasons. /
BART Cell Phone interruption policy (DRAFT)
BART may interrupt cellular telephone service facilitated by BART equipment in the
event of a reasonable expectation that demonstrations, protests or other activities will
present an imminent danger to BART riders, BART personnel, or damage to BART
1. BART may disable cell phone service equipment that it owns where there is
credible and reliable intelligence
NOTE: My thought is that "credible" means that there is apparent
capability to accomplish some a stated goal, and "reliable" implies that the
source of the information is known to be reliable, or the planning and
communication involves more thanjust a few people.
2. Which indicates the a group ofpeople are planning an action that is likely to
result in an of these conditions or activities:
a. Dangerous conditions on station platforms
b. Violence in the BART stations, including damage to property
c. Damage to trains
d. People on track ways
e. Interruption to train service
f. Closure of stations
g. Failure disperse an after an illegal assembly has been declared
3. Interruptions of cellular phone service can be ordered by any of the following
BART Police officials and such order must be approved by at least two of these
a. BART PD area commander
b. BART PD assistance chief
c. BART PD Chief
4. The BART Police Department shall proved post incident reports to the BART
Board ofDirectors and the BART Citizens Review Board detailing
a. Time and location of cell service interruption
b. Extent of such interruption
c. Duration of such interruption
d. Who ordered and who authorized the interruption
e. Specific nature ofthe information precipitating the cell service
i. The nature ofthe planned activity
ii. Transcripts or recording of communications monitored
iii. If known, identity ofthe individuals or groups involved in
planning the activities described above
iv. If identities are not known, or not revealed, explanation of the
reasons such information is not known or released
5. Following any cell phone service interruption for any ofthe reasons cited above,
BART PD will provide to the BART Board and the BART CRB the following
a. Information that demonstrates the effectiveness of the interruption.
b. Information about any arrests made as a result ofthe planned activities
that precipitated the interruption.
c. Information about any activities that occurred in spite of the cell service
Fellow CRB Members:
Unfortunately, like several other members, I am unable to attend the BART Police Citizen
Review Board (CRB) special meeting on Friday September 2,2011 regarding BART policy on
controlling cell phone coverage in stations during potentially dangerous situations.
I cannot support a policy that would restrict the BART administration and police from utilizing a
lawful and effective means to control a crowd and promote public safety during a mob action
inside a BART station. This position leaves two issues to be resolved. Is controlling cell phone
coverage in this type of situation 1) lawful and 2) tactically effective?
Was the BART atction lawful?
The ACLU in their letters of August 15 and 22,2011 asserts that discontinuing cell phone
service in BART stations was an improper infringement on the freedom of speech. While the
ACLU's analysis and case citations appears to be persuasive, I am not convinced based on their
opinion alone. I have great respect for the ACLU as an advocacy group that works to protect and
expand civil liberties. However, their views do not always coincide with mainstream public
opinion or the findings ofthe California and Federal courts.
The courts have routinely held that government can place reasonable time, place and manner
restrictions on the exercise of first amendment rights. I found the following two quotes! in a
quick on-line search:
"The First Amendment to the U.S. Constitution guarantees Freedom of Speech. This
guarantee generally safeguards the right of individuals to express themselves without
governmental restraint. Nevertheless, the Free Speech Clause of the First Amendment is
not absolute. It has never been interpreted to guarantee all fOID1S of speech without any
restraint whatsoever. Instead, the U.S. Supreme Court has repeatedly ruled that state and
federal governments may place reasonable restrictions on the time, place, and manner of
individual expression. Time, place, and manner (TPM) restrictions accommodate public
convenience and promote order by regulating traffic flow, preserving property interests,
conserving the environment, and protecting the administration ofjustice." ...
"The Supreme Court has held on more than one occasion that no one may "insist upon a
street meeting in the middle ofTimes Square at the rush hour as a form of freedom of
speech" (Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 ). In
most instances a commuter's interest in getting to and from work outweighs an
individual's right to tie up traffic through political expression."
I am not a legal scholar and I do not have the time or expertise to conduct additional research on
whether the control of cell phone coverage is an appropriate governmental restriction. There are
usually good arguments on both sides of a case law issue and I do feel there are legitimate
viewpoints other than the position of the ACLU. Accordingly, I suggest the CRE obtain
additional legal advice, either from the BART legal department or some other source before
making a policy recommendation.
Is the control ofcell phone communication an effective crowd control tactic?
Law enforcement agencies must provide for public safety while also insuring that demonstrators
have the ability to peacefully exercise their first amendment rights to assemble and express
themselves. I am quite experienced in the tactics used to carry out this important police mission.
Controlling cellular coverage in limited locations such as underground transit stations has not
been a common or feasible option for most law enforcement agencies. I am also aware that
anarchists have used cell phones to coordinate dangerous and illegal activities during public
Before making any decision the CRB should receive a briefing by the BART Police on how this
tactic can be used to promote safety during a crowd control event inside a BART station. It
would also be helpful to determine if this tactic has been used by other transit agencies and, if so,
with what results.
The BART Board of Directors has asked for our input on this important policy question. The
CRB should not rush to resolve this matter without a thorough analysis and consideration of the
It is my hope that the CRB members who meet on Friday will begin a process that leads to a
quality decision by the fun CRB at either during the next regularly scheduled meeting or another
appropriate future meeting.
Text of email from CRB Member Les Mensinger:
As per George, here is my input concerning cell phone shut off.
In my area, District 6, people have indicated to me that BART police did the right thing
to stop cell phone coverage. However, they also indicated it should be only done in an
I may suggest the following:
Signage; "BART reserves the right to have cell phone services shut down in case of
Emergencies may include:
1. Cell phones to be used as a trigger device for a bomb
2. Hostage communications to their aggressors
3. Life threatening situations including terrorism
Before communications are to be shut down, 2 of the following must agree. They are,
the BART chief, city DA and/or the city police chief or assistant.
Better press relations as to who, what & why it is being done (cell phone stoppage), this
should be handled through the BART police spokesperson.
Text of email from CRB Member Suzanne Angeli:
As requested by President VelezPerez I am forwarding you my comments for the
of September 2nd and hope this item will be continued utilI
- Cell Phone Service activation or deactivation should be done during
circumstances that the of passengers and
after by the Chief of Police,the General Manager and the
- notification to the disabled and all passengers covered under the ADA
should be of utmost and confirmation of such should be verified
before any actions are taken
-passengers which average 100 per car should be given during commute
hours as to safe levels of patrons on platform levels and should be monitored
- demonstrations must be limited to Free Areas of the stations and must
continue to be permitted in advance as to nature,size and length
- rioting and destruction of property or persons in paid areas of BART should
not be tolerated
And if necessary ordinances outlining such should be enacted to allow for the
police department to do it's job in protecting the riding
Text of email from CRB Member Benjamin Douglas:
I propose that the policy be as follows:
1) BART may suspend cell coverage (a "Coverage Suspension") if it has reason to believe that
such coverage will be used imminently to create a situation that could threaten the physical
safety of any persons in the BART system (including passengers, employees or protestors). Such
a situation includes the use of cell phones to coordinate disruptive activities inside fare gates.
Such a situation does not include any communications related to activities outside fare gates.
2) The initiation of a Coverage Suspension requires the approval of at least three ofthe following
four persons: the President of the BART Board of Directors; the General Manager; the General
Counsel; and the Chief ofthe BART PD.
3) Any Coverage Suspension shall be of a duration and a geographic scope no greater than
necessary to address the threat described above.
I would also recommend that we endorse Director Murray's suggestion at the Board ofDirectors
meeting on this topic that stations (certainly the ones in downtown SF and Oakland) have
designated and marked free speech areas away from the fare gates.
Text of email from CRB Member Ken Jones:
Greetings Mark; I am so sorry that it has taken me so long to get this draft to you - but, it has
been a very busy week (which is a good thing) but, very fulL......
In my thinking BART is a transit service responsible for safely getting people from Point A to
Point B. In getting people from Point A to Point B, there is no other transit district in the United
States of America attempting to identify "situations" where it can curtail the communications of
its passengers. No other transit agency, larger, smaller, same size, absolutely no transit agency in
America is having this conversation and, I find that very telling.
As the ACLU has clearly pointed out: "While the government has no obligation to build a public
park, once it does so, it cannot shut the park gates to speakers with whom it disagrees. In other
words, as soon as a venue opens its doors to public speech, those doors CANNOT be closed.
Cell phone service was originally brought into the BART stations, on the platforms and into the
trains, shortly after 9111, when it became clear to people how useful it was to public safety to
have widespread, ubiquitous use of cell phones for people so that in an emergency, they could
contact the authorities, they could contract the police, they could contact their loved ones and
While BART is not under any obligation to provide cell phone service, either in trains or on
platforms, they did make it available, and the fact that they took it away specifically to present a
protest is highly disturbing and will be ruled illegal in the courts.
There are no conditions, what so ever, that this transit agency, with the responsibility of getting
people from Point A to Point B shall be able to block the communications ofits passengers and
BART gets people from Point A to Point B; and in order to meet that objective there is no
relationship whatsoever to communications and cell phone usage, and they are not of the
business of this transit service.