As convention nears, rules set for scrutiny of protesters

A new St. Paul police policy for investigating protest groups draws praise from police experts for its sensitivity to dissent, but criticism from those who worry that police will spy on activists leading up to the Republican National Convention..

"It looks like they are in the business of infiltrating groups," said Chuck Samuelson, executive director of the American Civil Liberties Union of Minnesota, after reviewing a copy of the policy requested by the Star Tribune.

"I am not sure what would prompt them to say that because I don't think that the document says that," responded Tom Walsh, a St. Paul police spokesman.

The policy, adopted in January by Chief John Harrington, has nothing do with the Sept. 1-4 convention, said Walsh. "We have completely redone our manual. We do that periodically. This is not tied to the RNC."

Asked if the new policy would be used to investigate convention protesters, Walsh said: "That presumes there will be those investigations and I don't think we can presume that."

To former Minneapolis Police Chief Tony Bouza, there's no question the policy was prepared with the convention in mind. "It's the 800-pound gorilla in the room," he said.

After reading the policy, civil-rights lawyer David Kairys said it signals a police plan to investigate protest groups coming to the convention. "It sounds like they are going to do it, putting in language that would be useful if it is challenged," said Kairys, who is also a law professor at Temple University in Philadelphia.

The new document is called "Policy and guidelines for investigations and information gathering operations involving First Amendment Activity." It involves monitoring "the activities of groups involved in or planning demonstrations and counter demonstrations which may affect public safety; violate state, local or federal laws; or which may result in a public safety risk."

It states that the department cannot launch investigations of groups "based solely upon the lawful exercise of their constitutional rights." There must be "the reasonable suspicion that unlawful acts have occurred or may occur."

The policy's protection of free speech rights gets mixed reviews.

Bouza calls it "eloquent" for its "sensitivity" to protesters' constitutional rights. But he said the guidelines should be more clear about the right of police to infiltrate groups and demonstrations. The policy says undercover operatives are barred from "instigating unlawful acts" and cannot take leadership positions in a group.

"This was drafted by somebody to provide protections for someone spying on people," says Michael Avery, a law professor at Suffolk University and former president of the National Lawyers Guild.

Progressive elements

"I think, as it is written, it has a lot of progressive elements to it," said Alex Vitale, assistant professor at Brooklyn College who wrote a report for the New York ACLU on the 2004 Republican convention, which was held in New York City.

"My big problem with it is the lack of independent oversight or accountability. ... Basically you have police keeping a paper trail on their own decision-making, but how does anyone else know that they are adhering to those requirements?"

The policy requires David Korus, commander of the Police Department's Special Investigations Unit, to notify Chief Harrington every 180 days on "the status of any work." While not altogether clear, it appears to allow Korus to launch less invasive inquiries -- such as sending undercover agents to public meetings -- without approval.

However, Harrington or his designee must sign off on full investigations, which appears to include sending undercover operatives to private meetings, and Harrington must approve continued use of such operatives every 120 days.

Walsh declined to answer most questions about the policy, saying it speaks for itself.

NYC police were active

In 2003 and 2004, New York City police traveled across the country, to Canada and to Europe to investigate protest groups before the Republican convention in New York. Asked if St. Paul police would investigate protest groups in Minneapolis, where most planning meetings are being held, Walsh said, "We are not following the New York model. We've been saying that from the beginning."

Bouza also expressed doubts that St. Paul police will infiltrate groups. He wishes they would; he said it is needed to learn about potential violence to prevent it during the convention. He said that surveillance of groups coming to the 2008 convention probably is limited to telephone wiretaps by the National Security Agency, with the information turned over to the FBI.

Minneapolis FBI spokesman Paul McCabe said the FBI would not investigate a group unless it learned of plans for property destruction, violence or terrorist activity and only if it met a federal threshold.

Pushing over garbage cans

"If someone pushes over a garbage can, that does not rise to a level of violation," McCabe said. "The local police are going to take care of that."

Both Samuelson and Teresa Nelson, legal counsels for the state ACLU, said the threshold for what police could deem "unlawful activity" is too low, allowing investigations for minor violations like marching without a permit or performing peaceful civil-disobedience protests.

Walsh, the police spokesman, said the ACLU has had "more than ample opportunity" to discuss such concerns with police officials.

Bruce Nestor, one of the attorneys for a local coalition planning a convention march, said his greatest concern is that there is no requirement that police must show any element of violence or level of seriousness in order to trigger an investigation of "unlawful activity."

There is also a paragraph on procedures for investigating reporters employed by the "mainstream media." It states that besides following the law, such an investigation would require police to consult a prosecutor in advance.

Jane Kirtley, a professor of media ethics and law at the University of Minnesota, said she was glad the paragraph was there, but questioned why the mainstream media got "deferential treatment ... so if you are not in mainstream journalism, all bets are off."

Staff researcher Roberta Hovde contributed to this article. Randy Furst • 612-673-7382

ONLINE: To read the

St. Paul police policy, go to www.startribune.com/metro