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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)
http://bart.gov/about/bod/districts.aspx
http://bart.gov/about/bod/index.aspx
Overview of the development of civilian police oversight at BART:
Second (and Last?) Truly Public BART Meeting on Police Oversight, 5/15/09: audio
http://www.indybay.org/newsitems/2009/05/17/18595590.php
BART Police Oversight Subcommittee Stacked Against Real Civilian Oversight, 6/1/09: audio
http://www.indybay.org/newsitems/2009/06/06/18600758.php
BART Inches Toward True Civilian Oversight But Don't Hold Your Breath, 6/8/09: pdf & audio
http://www.indybay.org/newsitems/2009/06/11/18601330.php
Town Hall on BART Police Oversight, Mehserle, Obama, Racial Disparities, 7/25/09: audio
http://www.indybay.org/newsitems/2009/08/09/18615003.php
BART Public Hearing on Flawed Draft Police Oversight Plan, 7/30/09: audio
http://www.indybay.org/newsitems/2009/08/10/18615205.php
BART Going Forward with Seriously Flawed Police Oversight Plan Created Behind Closed Doors
http://www.indybay.org/newsitems/2009/08/05/18614124.php
BART Anxious to Wrap Up Police Oversight Plan at Final Subcommittee Meeting, 8/10/09: audio & PDFs
http://www.indybay.org/newsitems/2009/08/14/18615770.php
BART Police Oversight Vs. Every Cop Union in the State; Police Chief Gee Out; and a Rumor
http://www.indybay.org/newsitems/2009/08/18/18616417.php
Town Hall on BART's Lobby of State Legislature for Their Police Oversight Plan, 8/22/09: audio
http://www.indybay.org/newsitems/2009/08/25/18619422.php
BART Uses Faux "Community" at Press Conference to Attack Ammiano for BART's Own Failures: audio and photos
http://www.indybay.org/newsitems/2009/08/27/18619874.php
Community Demands Action at BART Board Meeting; BART Lies Yet Again, 8/27/09: video and audio
http://www.indybay.org/newsitems/2009/08/31/18620299.php
Justice for Oscar Grant Outreach on East Bay BART Trains: video / BART Police Oversight Plan Dead
http://www.indybay.org/newsitems/2009/09/06/18621071.php
Governor signs bill (AB 1586) into law authorizing citizen oversight of BART Police
http://www.bart.gov/news/articles/2010/news20100716.aspx
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:
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)
http://bart.gov/about/bod/districts.aspx
http://bart.gov/about/bod/index.aspx
Overview of the development of civilian police oversight at BART:
Second (and Last?) Truly Public BART Meeting on Police Oversight, 5/15/09: audio
http://www.indybay.org/newsitems/2009/05/17/18595590.php
BART Police Oversight Subcommittee Stacked Against Real Civilian Oversight, 6/1/09: audio
http://www.indybay.org/newsitems/2009/06/06/18600758.php
BART Inches Toward True Civilian Oversight But Don't Hold Your Breath, 6/8/09: pdf & audio
http://www.indybay.org/newsitems/2009/06/11/18601330.php
Town Hall on BART Police Oversight, Mehserle, Obama, Racial Disparities, 7/25/09: audio
http://www.indybay.org/newsitems/2009/08/09/18615003.php
BART Public Hearing on Flawed Draft Police Oversight Plan, 7/30/09: audio
http://www.indybay.org/newsitems/2009/08/10/18615205.php
BART Going Forward with Seriously Flawed Police Oversight Plan Created Behind Closed Doors
http://www.indybay.org/newsitems/2009/08/05/18614124.php
BART Anxious to Wrap Up Police Oversight Plan at Final Subcommittee Meeting, 8/10/09: audio & PDFs
http://www.indybay.org/newsitems/2009/08/14/18615770.php
BART Police Oversight Vs. Every Cop Union in the State; Police Chief Gee Out; and a Rumor
http://www.indybay.org/newsitems/2009/08/18/18616417.php
Town Hall on BART's Lobby of State Legislature for Their Police Oversight Plan, 8/22/09: audio
http://www.indybay.org/newsitems/2009/08/25/18619422.php
BART Uses Faux "Community" at Press Conference to Attack Ammiano for BART's Own Failures: audio and photos
http://www.indybay.org/newsitems/2009/08/27/18619874.php
Community Demands Action at BART Board Meeting; BART Lies Yet Again, 8/27/09: video and audio
http://www.indybay.org/newsitems/2009/08/31/18620299.php
Justice for Oscar Grant Outreach on East Bay BART Trains: video / BART Police Oversight Plan Dead
http://www.indybay.org/newsitems/2009/09/06/18621071.php
Governor signs bill (AB 1586) into law authorizing citizen oversight of BART Police
http://www.bart.gov/news/articles/2010/news20100716.aspx
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:
For more information:
http://www.indybay.org/newsitems/2011/08/1...
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