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Police Spying Must Be Controlled
Los Angeles Times, April 12, 1983

By Gary T. Marx | Bio

In spying on its critics and failing to heed a Police Commission order to destroy its files, the Los Angeles, Police Department's Public Disorder Intelligence Division violated civil liberties, demonstrated poor management, and wasted resources.

The LAPD still is, in many ways, a national model for urban police. But it has lagged behind other cities in its handling of investigations with First Amendment implications.

Seattle, for example, has a strict municipal ordinance requiring an outside auditor to review police intelligence activities periodically and issue a public report. In Chicago, guidelines bar police from launching an investigation of a political group until there is "reasonable suspicion" that a crime has been or is about to be committed. The New York City Police Department has formally agreed to provide a written explanation of the reasons for undertaking an investigation and to submit to periodic review by a three-person oversight authority, which includes one non-police member. In Detroit, the "red squad" has been abolished, and the 110,000 persons whose names were in its files have been notified that they have a right to see the material collected before the documents are destroyed.

In Los Angeles, effective change has been slower in coming. After years of controversy, the Police Commission has wisely voted to disband the LAPD's intelligence division. What should replace it? At a minimum, sound policy requires:

  • A municipal ordinance limiting the conditions under which intelligence investigations of persons with particular political beliefs may be carried out. Suspected or actual criminal behavior rather than ideology or beliefs should govern the gathering of intelligence. A reasonable factual basis should be established before an investigation is launched. Penalties for violation of the ordinance and recompense for those whose rights are infringed on should be specified. Similar investigations by all city agencies should be subject to equivalent restrictions.

  • A clearer definition of types of, and criteria for, initiating and continuing such investigations. The attorney general's guidelines for FBI domestic-security investigations adopted under President Jimmy Carter — which categorize investigations as "preliminary," "partial" and "full" — might serve as a starting point. Under these guidelines, as the investigation probes more deeply, the criteria become more stringent. Applied in Los Angeles, this would mean that the most intrusive police investigations would require the written approval of the chief of police and judicial warrants when appropriate. Investigations should be subject to periodic review and monthly re-authorization.

  • A semi-annual audit of intelligence activities and a public report. The audit team should consist of sworn personnel and civilians, the latter to be appointed by the Police Commission or the City Council. If the audit uncovered violations of the municipal ordinance, persons whose rights had been violated would have to be notified, and they would have standing to sue for damages.

  • The labeling of all inquiries conducted by the LAPD unit that replaces PDID as First Amendment investigations, as is done in Chicago. This has symbolic meaning, and would continually remind intelligence officers of the special and sensitive nature of their duties.

  • Strict limitations on the retention and dissemination of information. Dissemination must serve a valid law-enforcement purpose and be fully documented. Only criminal intelligence information should be stored in department files. Unverified media reports, anonymous tips and rumors do not belong in files. Nor should personal information, such as political beliefs and sexual preference, be included unless this is directly related to criminal activity. Restrictions would apply whether or not a written file is created.

  • A rule whereby no officer would spend more than four successive years in intelligence work. This would include a presumption against subsequent reassignment to the same division. Nor should new recruits be allowed to do covert intelligence work.

  • Strict prohibition of under-the-cover undercover investigations. Sexual encounters should not be used to gather intelligence.

  • Close and firm supervision of the intelligence-gathering unit, with direct reporting to the chief. The chief must offer visible and unequivocal support for the spirit, as well as the letter, of the laws and policies guiding intelligence investigations. Sound policies are worthless if they are not effectively implemented.
The Los Angeles Police Department's intelligence division has come a long way since its union-busting activities of the 1920s. One hundred cardboard boxes of intelligence files made up partly of newspaper clippings gathering dust in a policeman's garage are more reminiscent of the Keystone Kops than of "1984." However, such comparisons offer no grounds for celebration when fundamental and fragile freedoms are at stake. The police must adhere to the highest imaginable standards, rather than to the lowest.

Effective criminal intelligence is vital to a free society. Striking a balance between our desire for order and our right to liberty is always problematic, and there are no easy solutions to this dilemma. Citizens must be protected from overly zealous enforcers as well as from serious law violators.

Gary T. Marx, a professor of sociology at MIT, is writing a book on police undercover practices. He was raised and educated in Los Angeles.

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