Thursday, July 2, 2009

Statement of Kevin Keenan, Executive Director, ACLU of San Diego & Imperial Counties Regarding Sheriff’s Department Handling of Cardiff House Party fo

Statement of Kevin Keenan, Executive Director, ACLU of San Diego & Imperial Counties Regarding Sheriff’s Department Handling of Cardiff House Party for Congressional Candidate Francine Busby

On Friday, June 26, 2009, according to press reports and witness statements, a San Diego County Sheriff’s deputy, responding to a noise complaint, entered the home of Shari Barman who was hosting a political gathering to support Francine Busby, a candidate for Congress. When the homeowner questioned why she had to provide her date of birth, the deputy grabbed her arm, put it behind her back, and brought her to the ground. Feeling intimidated by a group of mostly middle-aged women, he pepper-sprayed a number of guests and arrested Barman.

The ACLU has received a number of inquiries about whether the civil liberties or rights of the event hosts and guests were violated. Because the Sheriff’s Department will not release 911 recordings or other documentation about the incident, it is hard for us to determine all the facts. The ACLU calls on the San Diego Sheriff’s Department for more public disclosure and transparency in what appears to be a significant abuse of power by a peace officer who intruded into a person’s home and reacted with unwarranted force to an unsubstantiated complaint alleging a minor infraction. With the limited information that we do have, the incident raises a number of troubling questions.
1) What right did the Sheriff’s deputy have to enter the property in a non-emergency situation in the first place?
2) What right did Deputy Abbott have to demand the date of birth of the host?
3) How did peace officers allow this situation to get out of hand to such a dramatic extent, and why did the deputy not use his training to deescalate the situation instead?

Based on what is now known, the Sheriff’s deputy may have illegally entered a private home, disrupted lawful political activity, demanded personal information that was not required, and used physical force that was unnecessary, and thereby caused an escalating confrontation.

Fourth Amendment Protections
Above all else, the Fourth Amendment protects the privacy of the home. As a general rule, a peace officer may not enter the home without a warrant, consent, or exigent circumstances. Someone other than the owner can legally consent to entry of the home only if the officer reasonably believes that person has authority to give consent. Such consent may be revoked by the owner.

In this incident, press reports and witness statements suggest that at about 9:30 p.m., Deputy Abbott and a Psychiatric Emergency Response Team clinician entered the home through the open front door, asking where the homeowner was. None of the reports suggest that the homeowner or even a party guest invited the officer inside, and, in any case, it is doubtful at best that an officer could reasonably believe a party guest has authority to consent to entry of the home. Proper constitutional procedure would have been for the deputy to ask for the homeowner to be called to the door to be informed that a neighbor had made a noise complaint.

From the information currently available, it seems the deputy did not observe excessive noise himself but was acting on the unsubstantiated complaint. Most witnesses described the event as a typical political house party, without amplified music or entertainment. Busby stated that she delivered a talk via microphone between approximately 8:00 and 8:30 p.m. during which she was interrupted several times by a neighbor shouting in opposition. Other nearby neighbors report hearing nothing at all until the eight back-up patrol cars and a helicopter arrived on the scene. In these circumstances, it is possible that the deputy violated the owner’s Fourth Amendment rights by entering her home without a warrant, consent, or exigent circumstances.

Providing Legally Required Information
It is not a crime to refuse to provide information that officers have no legal right to require, nor is it a crime to question an officer’s right to seek such information. In this incident, according to a Sheriff’s spokesman, Deputy Abbott approached the homeowner and asked for her date of birth so he could file paperwork alerting the city to the noise complaint. According to most reports, the homeowner asked why the deputy needed her date of birth and started to walk away, and he restrained her.

A person is only obligated to provide information if it is legally required. It seems clear that at most, a minor noise infraction was taking place. It is not clear that the deputy had the authority to demand the homeowner’s identifying information, but, if he did, certainly the person’s name and home address should suffice. That the Sheriff’s deputy used physical force against a 60 year old woman when she questioned whether providing her birth date was necessary is of grave concern. Even if she unlawfully refused to provide the birth date or acted disrespectfully, common sense and good judgment would dictate an alternative to the use of force.

Breaking the Peace Instead of Keeping the Peace
It is almost unfathomable how this incident was allowed to escalate to this degree. The fact that this incident escalated so quickly, and involved physical force, repeated use of pepper spray affecting numerous attendees, several older guests reportedly knocked to the ground, at least eight law enforcement officers, including a sergeant, a helicopter, an ambulance, two people being booked at Vista Detention Facility and perhaps several others arrested or detained for “talking back to an officer” or taking photos with their cell phones but later released at the scene—all because of a vague noise complaint—speaks to a serious lack of law enforcement restraint.

Police officers and sheriff’s deputies receive training in public order policing or crowd control. Even if the events unfolded exactly as described by the Sheriff Department’s spokesperson, there appears to be no justification for the melee that the deputy’s actions created.

Subsequent Remarks of Sheriff’s Department Officials
Since the incident occurred, there have been troubling indicators that some Sheriff’s Department officials do not appreciate their responsibility in such police-civilian interactions or the important Fourth and First Amendment interests at stake. Most notably, Sgt. Thomas Yancey told the Union-Tribune, “If Francine Busby was there, why not take a leadership role, step up, and nip this thing in the bud?” Sgt. Yancey’s statement reflects an arrogance and dismissiveness unbefitting a law enforcement officer. It is the responsibility of law enforcement officers to handle such situations with professionalism and respect for the rights of the public.

The ACLU calls for a full and independent investigation and appropriate action taken. The investigation should determine whether the deputy acted within his authority to enter Barman’s home, whether he had the right to demand information that was not legally required, whether he used unnecessary force in restraining her, and whether he and subsequent responding officers overreacted and unnecessarily escalated the situation.

Tuesday, June 30, 2009

Brown to (in a few months) Officially Announce Candidacy for Governor

Brown’s candidacy has been about not if he would run for Governor, but when he would make it official. According to Fog Street Journal:

“Now that Antonio Villaraigosa’s out of the race for governor, are you getting any closer to officially declaring your candidacy?” Fog City Journal asked Brown on the occasion of the annual Alice B. Toklas Pride Breakfast held Sunday at the Palace Hotel.

“I have to wait a few months,” Brown responded but didn’t stick around long enough for any follow-up questions.

If what has been happening here in San Diego is any indication, he needs to prove he can raise money. He and Newsom have had fundraisers here and this competition for dollars in economically depressed times will be indicative of their levels of support.

Traditionally, Brown has been able to thrive in attracting volunteers but suffered in the fundraising area. If he is to create a winning campaign, he must use these months to reach parity, if not surpass, Newsom whose issues with identity can be overcome with a sizable treasury.