BART Board Meeting Police-Related Matters - No Mobile Phone Policy, Indybay Arrest, 9/22/11: audio

During her report to the board, new general manager Grace Crunican mentioned the upcoming hearing of the California State Assembly Committee on Public Safety called by Assembly member and committee chair Tom Ammiano in order to examine BART's progress on addressing issues raised in the 2009 NOBLE report and more recent BART police misconduct.

BART's new Citizen Review Board chair George Perezvelez gave a presentation to BART's board of directors on CRB recommendations regarding shutting down of mobile phone antennas. The board had directed the CRB to look at the issue and make recommendations, yet now BART directors seemed largely disinterested in following through with the creation of a formal policy. Director Joel Keller suggested that everyone could "slow down" at this point and director Lynette Sweet suggested that a policy may not even be needed. Current board president Bob Franklin did say that BART has consulted with the ACLU, the FCC, and the CPUC on the matter.

After sitting patiently through three hours of BART board business on issues largely unrelated to their police department, the floor was finally opened up to public comment. I was the last of three speakers called and I used my time to formally notify the board of BART police's illegal arrest of me at the demonstration on September 8th. I stated that I was still facing a court date in October for the charge of having violated California Penal Code 369i. I let the board know that I had filed a complaint through their new police Auditor, although because the complaint did not involved violence or racism, or four other criteria mandating an Auditor investigation, BART PD alone would be investigating its own role in my wrongful arrest. Under their new police oversight schema, the new Citizen Review Board would not even be involved because their only role in complaints is to review investigations conducted by the Auditor. I drew attention to statements made by deputy chief Hartwig and spokesperson Jim Allison that seemed directed toward justifying my wrongful arrest, namely by referring to "legitimate" reporters and reporters with "agendas." At the conclusion of my remarks, directory Tom Radulovich said that he had gotten an internal BART email with language about "legitimate" journalists that he found troubling. Radulovich said that policy regarding journalists needed to be clarified. He added that while the CRB would be outside of the complaint process in this instance, the CRB could take up the issue as a matter of police policy and practice. Director Sweet called chief Rainey to explain what 369i was and as to whether he was aware of my complaint. Rainey said he was aware of my complaint but could not discuss it because the it was under investigation. Sweet pressed Rainey further, in that he could discuss policy related to police interactions with the press. Rainey said that BART police have a "general order" governing how they handle the media, that they wanted reporters to be credentialed with credentials prominently displayed. As is typical when internal police "investigations" into police wrongdoing are underway, Rainey said he couldn't comment on the investigation itself, and in no way would publicly question the actions of his officers, but it was apparently acceptable for him to besmirch the victim/complainant with innuendo. Without prompting, and not in direct response to anything he was asked by the board, Rainey stated that "members of the media cannot be part of the protest, and then when a problem arises and police action is about to be taken, you can't jump back to the other side of the line and say, 'Now I'm a journalist.' I'm not saying that's what happened in Mr. Morse's case, I don't know. The investigation has not been completed. Not to mention, as he said, he has a court date pending, so a lot of this stuff is forthcoming and will be looked at very, very thoroughly." Slick, huh? So, he can't discuss the investigation, but the one thing he can say about the my complaint is that they are investigating me and my role as a journalist, perhaps hoping to find evidence that I was acting as a protester on September 8th. Never mind that, on different grounds, the detention and arrests of protesters was unfounded and illegal as well.



This reporter's notes for public comment to BART board of directors (actual comment in audio below varies somewhat):


Hello. My name is David and I report for Indybay.org. Many if not all of you know who I am and are familiar with my reporting. Not to toot my own horn, but just to be clear, I have written definitive reports on NOBLE, Meyers Nave, the Citizen Review Board, and many other issues at BART.

Dan Hartwig recently asserted that he didn't want to give the impression that BART wants to restrict the ability to demonstrate or to report the news. I beg to differ. I seriously beg to differ.

I was arrested on September 8th, held in handcuffs for three hours, and transported to SF County jail, despite having done nothing different than I had at BART protests in the past, despite the fact that I was there as a journalist, covering the demonstration with two cameras in my hands and my Indybay press pass around neck, and despite the fact that I was doing nothing different than any other journalist there. Yet I was the very first person arrested on September 8th.

It wasn't an accident that I was arrested either. As I was standing within the detainment circle with dozens of journalists and protesters, Dan Hartwig pointed me out for arrest to Officer Coduti. Coduti apparently knows me as a journalist because after he handcuffed me, he asked if I was "Dave Id" which is the well-known nom de plume I use only in relation to my reporting. Dan Hartwig definitely knows who I am after seeing me report on countless board meetings, subcommittee meetings, and, yes, protests over the last three years. As many of you are aware, my reporting is generally critical of BART, but that doesn't give your police the right to arrest me.

I had the opportunity to object to my arrest with Dan Hartwig while I was in handcuffs for hours in your Powell Street station and Hartwig didn't dispute my being a journalist. He told me that journalists can be arrested too, if they break the law, and I responded that he knew damned well that I hadn't broken the law.

At a press conference held during the time I was handcuffed, Hartwig and Jim Allison made references to "legitimate" reporters and Allison later made a remark about reporters with "agendas". BART doesn't get to pick between good and bad reporters.

I have filed a complaint regarding my arrest with your new police Auditor, Mark Smith, but the way your system works, the Auditor only conducts independent investigations for a limited number of cases, namely those that involve police violence or racism, so my complaint will only be investigated by your unaccountable police force with the final decision on a complaint against your deputy chief to be decided by the chief. And they have a full year to bury this.

Honestly, I'm afraid of further retaliation for my reporting on BART issues. Is this a new precedent being set that your deputy chief or any other officer will just grab me and arrest me whoever they may be losing their cool at a demonstration? I still have my 369i charge and have a court date in October. I am greatly concerned that there is support for unconstitutional actions by your police, on this board, in your administration, and across your police force.

My arrest was illegal. The handcuffing of corporate reporters and then telling them later that they were not arrested but detained was illegal. Requesting that SFPD revoke SF press badges was unheard of, and an embarrassment to SFPD when they realized that BART PD had misled them into doing that. Detaining dozens of journalists and protesters without a dispersal order, in your so-called free speech zone, was illegal. Arresting people for speaking out on BART platforms is illegal.

Note that protesters have not disrupted or attempted to disrupt trains except for in April 2010 and July 11th, 2011. All of the station closures have been done by BART. I saw the Powell Street station closed once in August of this year because five protesters were doing nothing more than handing out fliers. I can prove that if you doubt me.

It's time for the illegal behavior in BART's police department to stop. The agency should not be sending out emails asking for constitutional and unconstitutional solutions to demonstrations. There's obviously a culture of anything goes in your police department, and your public relations department. I don't see this board addressing that with any vigor. It shouldn't take civil suits to get BART to follow the law. The board clearly should direct the agency to follow the law. Your general counsel is not reliable in that regard.

There is an urgency with anti-protest legislation, AB 716, yet BART always urges the public to be patient with the process on police killings and beatings, and there is never any accountability. (Tony Pirone and Marysol Domenici are still on the force and the board seeks no creative solutions for their removal.) Where's the motivation there? I see none.

Lastly, Bob Franklin, from recent statements you've made to the corporate media, it seems that your best hope regarding protests is apathy or exhaustion on the part of those who would stand up and vocally resist your dangerous and unaccountable police department. That's just sad. Hoping people won't care might be convenient to you and the board but it will be bad for people of color, the poor, and other so-called marginalized peoples who ride BART.



Indybay Journalist Arrested at #NoFare BART Protest in Powell Street Station, 9/8/11: photos
http://www.indybay.org/newsitems/2011/09/12/18690043.php



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