Recommendations for First Amendment-Protected Events for Sta te and Local Law Enforcement Agencies Global Justice Information Sharing Initiative Decembe r 2011 D E P A RT M E NTOFJUSTICE
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Permissible and Prohibited Conduct ..................................................................................................................................................................... 11
Use by Other Agencies ................................................................................................................................................................................................13
Determination o State and Local Law Enorcement Role .............................................................................................................................15
Operations Plan .............................................................................................................................................................................................................15
Components o the Operations Plan .....................................................................................................................................................................17
Evaluation o Inormation ..........................................................................................................................................................................................21
Requests From the Media and the Public ............................................................................................................................................................21
Video and Photographic Images .............................................................................................................................................................................22
Retention o Inormation ...........................................................................................................................................................................................22
Evaluation and Feedback ...........................................................................................................................................................................................24
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Executive Summary
As articulated in the United States Constitution, one o the reedoms guaranteed by the First Amendment is the right o persons
and groups to assemble peaceully. Whether demonstrating, counterprotesting, or showing support or a cause, individuals
and groups have the right to peaceully gather. Law enorcement, in turn, has the responsibility to ensure public saety while
protecting the privacy and associated rights o individuals.
To support agencies as they ulll their public saety responsibilities, the Criminal Intelligence Coordinating Council (CICC)1
developed this paper to provide guidance and recommendations to state and local law enorcement2 ocers in understanding
their role in First Amendment-protected events.3 This paper is divided into three areas, designed to provide in-depth guidance or
law enorcement.
y Pre-Event Stage—Discusses how law enorcement will plan or an event or demonstration where First
Amendment protections are involved, ocusing on the activity that begins when law enorcement leadership
learns o an event and must determine the level, i any, o involvement at the event, rom both public saety
and investigative standpoints.
y Operational Stage—Focuses on how law enorcement will respond to the event, based on the ndings rom
the Pre-Event Stage, including the development and execution o the Operations Plan.
y Post-Event Stage—Addresses how and whether inormation obtained as a result o the event (both during
the Pre-Event Stage and Operational Stage) will be evaluated, disseminated, retained, or discarded, as per
agency policy.
As agencies respond to First Amendment-protected events, state and local law enorcement leadership should be aware o certain
“red ag” issues that may arise as they assess whether the agency and personnel should be involved in these events and, i so,
what orm that involvement should take. As agencies review and understand the concepts and recommendations within this
paper, special consideration should be given to these “red ag” issues to ensure that law enorcement agencies and personnel donot inringe on the rights o persons and groups.
The guidelines expressed in this publication do not necessarily reect the views o the U.S. Department o Justice, Oce o Justice
Programs, Bureau o Justice Assistance, or the U.S. Department o Homeland Security.
1 The CICC is a working group under the Global Justice Inormation Sharing Initiative, a Federal Advisory Committee to the U.S. Attorney
General on justice inormation sharing and integration initiatives.
2 This document is not intended to address the unique missions, requirements, and regulations o ederal agencies or tribal sovereignty.
3 In this paper, the phrases “First Amendment-protected event” and “First Amendment-related activities” reer to persons or a group who
peaceably assemble or gather in a public location.
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Introduction
Background
As articulated in the United States Constitution, one o the reedoms guaranteed by the First Amendment is the right o persons
and groups to peaceably assemble. Persons and groups engaging in First Amendment-related activities have the right to:
y
Organize and participate in peaceul assemblies, including demonstrations, rallies, parades, marches, picketlines, or other similar gatherings.
y Conduct assemblies/gatherings in public areas.
y Express their political, social, or religious views in a peaceul assembly.
y Freely associate with other persons and collectively express, pursue, promote, and deend common
interests.
State and local law enorcement ocers, in turn, must ensure the saety o the general public while protecting the privacy
and rights o persons practicing their First Amendment right to assemble peaceully. To support ocers as they ulll theseresponsibilities, the Global Justice Inormation Sharing Initiative tasked the Criminal Intelligence Coordinating Council with
developing guidance or law enorcement ocers in understanding their role in First Amendment-protected events.
Purpose
The purpose o this paper is to provide greater awareness and understanding o the appropriate role o state and local law
enorcement ocers in events and demonstrations where First Amendment rights are involved. This paper provides guidance
and recommendations to law enorcement ocers as they prepare or, respond to, and ollow up with events, activities, and
assemblies that are protected by the First Amendment o the Constitution o the United States o America. This resource is not
intended to address the unique missions, requirements, and regulations o ederal agencies or tribal sovereignty.
As ocers address these types o events, the three-stage process identied in this paper should be incorporated into agency
policies, manuals, and/or directives. This process, while ocusing on law enorcement’s response to First Amendment events and
activities, is not designed to limit the ability o ocers to engage in normal criminal investigations or public saety missions. A law
enorcement agency may have special rules and procedures governing the levels o review and approval required to engage in
preliminary or ull investigations or other activities discussed herein, and ocers should be aware o and understand these rules
and procedures.
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risk or threat, then the usion center should not distribute the assessment beyond those customers who are serving a public
saety role or the event. Fusion centers may also support the Operational Stage by assisting in inormation-/intelligence-related
inquiries ocers may have in response to an event.
I a criminal predicate or reasonable suspicion is identied or the ndings o the Pre-Event Assessment provide specic,
actionable intelligence, usion centers may support agency leadership and law enorcement ocers by identiying the collection
requirements4 applicable to the event, based on the mission and role o the usion center. In those limited circumstances, usion
centers should also be involved in any post-event activities, including the inormation evaluation, dissemination, and retention
eforts. Fusion centers should not be involved in post-event evaluation, dissemination, and retention eforts o events that involve
only routine public saety issues, such as conicts between demonstrators or crowd-control problems.
“Red Flag” Areas
“Red ags” are issues and concerns identied throughout the three-stage process that law enorcement should careully evaluate
beore proceeding. As agencies utilize the guidance identied in this paper and respond to First Amendment-protected events,
there are certain areas that law enorcement leadership must be aware o as they assess whether and to what degree, i any,ocers should be involved in these events. State and local law enorcement leadership should clearly articulate the reason,
purpose, and justication or collecting inormation when addressing these “red ag” areas in the agency Operations Plan.
1. Pre-Event Red Flags
• Collecting inormation based solely on participants’ belies/groups’ actions.
• Collecting names o organizations, proposed participants, or contact organizers (other than event
organizers), including counterdemonstration groups.
4 I a criminal predicate or reasonable suspicion is present or the ndings o the public saety assessment provide specic, actionable
intelligence, usion centers may support agency leadership and law enorcement responders by urther identiying inormation needed to
better understand the public saety threats and risks associated with the event. This process—also reerred to as the identication o collection
requirements—includes the recognition o gaps in current inormation holdings and can guide the lawul collection o inormation to aid
objective analysis o threats and risks.
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Pre-Event Stage
The Pre-Event Stage begins when state and local law enorcement ocers learn o an event in their jurisdiction during which
persons will be actively exercising their rights as granted by the First Amendment and may require a law enorcement presence.
This notication may occur via event organizers who submit a request to law enorcement or assistance during the event, the
governmental entity that issues permits, the media, or other means o contact.
The goal o the Pre-Event Stage is to determine the appropriate role, i any, or law enorcement at the event. Based on the size
and nature o the event, a public saety response may be needed, or i a threat o criminal activity is identied, there may be a
need or investigative or intelligence operations. Once the Pre-Event Stage is complete, leadership should have the appropriate
inormation to develop an Operations Plan, i required.
Information Collection
Most public gatherings will require that law enorcement leadership review at least a limited amount o inormation in order to
make an assessment o the potential impact o the event on public saety. As part o this assessment, leadership must consider
the need to preserve the peace, the need to deploy ocers or crowd and trac control and other public saety purposes, and the
need to protect persons’ rights to assemble and express their opinions. For the public saety assessment, inormation collectionmust be limited to that which is relevant to the agency’s decision as to the need to take action to acilitate event-related activities
and provide a public saety response. The inormation sought should be clearly identied as needed solely to plan an adequate
response to ensure public saety and health and to protect the public and those exercising their First Amendment rights.
Additionally, this inormation should be collected in an open, transparent manner and may be obtained rom the event organizers
or via publicly available materials, as appropriate.
Agency Leadership
Throughout the Pre-Event Stage, agency leadership should be knowledgeable and involved in all assessment and, i appropriate,
planning o response to the event. Additionally, agency legal counsel should be involved in all stages and be accessible or
providing advice during all law enorcement activities.
Special Authorizations
Prior to any pre-event activities, agency leadership should consult all relevant policies and guidelines to determine whether any
special authorization is required or the particular type o event. Examples o these special authorizations include reasonable
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• Exception: I an ocer witnesses a crime being committed or has reasonable suspicion that a crime
may be committed (such as an expressed threat), based on the Operations Plan, agency policy, or
state law, the ocer may question participants, as appropriate.
• Seize participants’ or onlookers’ cameras, cell phones, or materials unless during the course o placing
the person under a lawul arrest.
y Disclosure o identity—I consistent with the Operations Plan, ocers may attend public rallies and walk in
public parades without disclosing their identity provided that their purpose is solely to monitor the rally or
parade or public saety and criminal conduct issues. In this capacity, ocers will not direct or inuence the
participants o the event and will not armatively represent themselves to be a participant or a member o
an organization participating in the event (such as wearing clothing indicating their involvement with the
organization). I there is an investigative element based on criminal activity, any undercover tactics utilized
should be consistent with agency policies and procedures.
y Media interaction—The Operations Plan should speciy the nature and level o engagement with the
media. It is recommended that the Operations Plan provide instructions or ocers to direct any questions
or comments to agency leadership or the agency public inormation ocer when approached by the media.
y Permissible and prohibited conduct—Permissible and prohibited conduct listed in the Pre-Event Stage
applies to the operational phase as well.9
y Permissible video, sound, or photographic recording—All use o video or photographic recording o the
events should be specially authorized by agency leadership in advance o the event. Any videotaping or
photography:
•
Should be conducted only in a manner that minimizes intererence with the exercise o FirstAmendment rights by persons lawully participating in the event.
• Should be used only or crowd control training or evidentiary purposes.
9 See additional law enorcement conduct parameters on page 19 under “Brieng.”
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• “Evidentiary purposes” means:
• Evidence that is reasonably likely to be used in administrative, civil, or criminal proceedings or
investigation.
• Evidence related to allegations o misconduct by ocers.
• Should include only the recording o locations that are in public view and where there is no reasonable
expectation o privacy.
• Should be conducted only in a manner that protects a person’s anonymity and ree association or
circumstances or when there exists a reasonable expectation o privacy (or example, a conversation on
a cell phone or writings or readings in a person’s possession when that person is not involved in a crime
or the subject o a relevant criminal investigation would not be permissible).
• Should not include the targeting or observation o persons based solely upon race, gender, ethnicity,
disability, religion, or other classications protected by law.
•
Should authorize the recording o persons only when the ocer using the equipment has reasonablesuspicion that the person is involved in criminal activity.
Some law enorcement purposes may be stated generally in the Operations Plan or communicated to ocers, but objectives that
may risk interering with the exercise o First Amendment rights should be stated narrowly and be expressly tied to a specic law
enorcement unction (e.g., public saety, investigative).
Briefing
As part o the operational brieng, agency leadership and command staf are encouraged to outline the role o law enorcement
ocers at an event.10 It is the duty o law enorcement ocers to uphold the United States Constitution. As such, they have the
responsibility to protect persons engaged in their First Amendment right to peaceably assemble. Public saety is the primarymission o ocers assigned to these events, and as a part o this mission:
10 The Role o Law Enorcement at First Amendment Events, a pocket-sized reerence card that identies the role o the ocer, is available or
distribution to line ocers.
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Post-Event Stage
Once the event has concluded, the Post-Event Stage should be initiated to address the handling and use o any inormation that
was collected in the Pre-Event Assessment or during the event.
Evaluation of Information
Inormation collected as part o the Pre-Event Assessment or during the event should be evaluated to determine whether certainpieces o inormation should be retained to acilitate planning and preparation or uture events or whether there is a criminal
predicate that may necessitate retaining the inormation or another valid law enorcement purpose. Inormation regarding
First Amendment activities should not be retained to acilitate planning and preparation or events that are unlikely to recur
or or other administrative purposes, unless needed or criminal prosecution or i the inormation reaches the threshold or
inclusion into a 28 CFR Part 23 criminal intelligence database. Likewise, personally identiable inormation should be removed
rom inormation retained to acilitate planning and preparation or oreseeable and likely events. As part o this evaluation
process, consideration should be given to the treatment o inormation about groups and individuals when a criminal predicate is
identied. Such inormation should be retained in agency case or intelligence les. I inormation is gathered regarding groups
and individuals when no criminal predicate is identied, personally identiable inormation should not be retained, other than
contact inormation or event organizers or administrative purposes (such as uture event preparation).
Requests From the Media and the Public
At the conclusion o the event, agency leadership should determine how the agency will respond to requests rom the media or
members o the public regarding law enorcement’s response to the event.
• Special consideration: Agencies should involve the public inormation ocer in all acets o the event and
should direct all media inquiries to that ocer.
Information Dissemination
Agency leadership should identiy whether and how any inormation (or les) regarding the event will be retained or a valid law
enorcement purpose or disseminated. This determination should be made in the context o the state’s Freedom o Inormation
Act or Sunshine laws and considering the value o transparency and open government. I it is determined that inormation will be
disseminated, it is recommended that inormation be disseminated in accordance with the agency’s dissemination plan, policy,
or Standard Operating Procedure unless there are specic requirements with respect to the event or investigation o incidents
related to the event. Agencies may also want to consider dissemination o a summary/press release that may be available to the
public.
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Prior to dissemination, agency leadership should consider the ollowing issues:
y All requests or inormation shall be evaluated and approved prior to dissemination by agency leadership or
designee.
yDetermination should be made as to whether the requesting agency is reliable in treating the inormationwith the requisite care and sensitivity i the requesting agency is not a criminal justice agency.
y Dissemination o inormation related to the event should be made by written transmittal in compliance with
applicable law.
y The rst page o any document in which inormation regarding the event is transmitted to a recipient
agency shall contain a notice limiting dissemination to the specic purpose or which the document was
transmitted and conditioning urther disclosure (i allowed under the jurisdiction’s law) on the third-party
recipient’s rst getting the agency’s permission.
y Nothing in this section limits the dissemination o inormation regarding the event to a government ocial
or to another individual, when necessary, to avoid imminent danger to lie or property.
Video and Photographic Images
Agency leadership should speciy that all video or photographic images taken at the event shall not be sold or reely transmitted
to any other entities without the approval o the event or agency supervisor. Leadership should also speciy whether the video or
images will be retained by the agency, or what valid law enorcement purpose, and the length o retention.
Retention of Information
The retention period or inormation regarding the event (including the Pre-Event Assessment, the Operations Plan, inormation
obtained during the event, etc.) should be specied by agency leadership based on policy and whether a reasonable law
enorcement purpose has been established.
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The retention policy relating to First Amendment-related events should articulate when any records related to the event should
be purged pursuant to agency policy rom the last date o entry, with the ollowing exceptions:
y Inormation may be maintained i it is part o an ongoing investigation.
yAll written memoranda requesting authorization to commence an investigation and subsequentauthorizations shall be maintained or not less than a specied set o years—based on agency policy, state
expungement laws, and whether the inormation is part o an investigative/intelligence record—ater
termination o the investigation.
y Records showing violation o these guidelines shall be destroyed only in accordance with agency policy
and/or expungement laws/orders.
y The chain o custody or destroyed les shall be established and documented to provide a record
establishing that the les have been destroyed.
I a criminal predicate is identied, agencies should reerence their policies and procedures regarding applicable inormation
retention. I inormation is retained in a criminal intelligence system, agencies should review the system policies and procedures
regarding the retention o inormation and the threshold or retention (e.g., 28 CFR Part 23).
Agencies should limit the retention o inormation as much as possible to avoid the perception o maintaining les on groups
or persons who engage in protected First Amendment activities. I deemed appropriate to retain, contact inormation o event
organizers and event logistical inormation, along with the response summary and any press releases, should be placed only in an
administrative fle.11 This type o inormation can provide law enorcement with historical perspective on the activity, in the event
that event organizers or other organizations seek to hold additional demonstrations or other law enorcement agencies request
inormation on the event.
11 An administrative le is a noninvestigative le about an investigation or law enorcement-involved activity or issue.
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Additional Resources
Along with the guidance depicted in this concepts and issues paper, there are many additional resources
to assist agencies in responding to First Amendment-related events and demonstrations.
Law Enforcement Line Officer
Privacy, Civil Rights, and Civil Liberties Policy Development Guide or State, Local, and Tribal JusticeEntities (Privacy Guide)— This guide is a practical, hands-on tool or state, local, and tribal justice
practitioners charged with drating the privacy policy and providing sensible guidance or articulating
privacy obligations in a manner that protects the justice agency, the individual, and the public. This guide
provides a well-rounded approach to the planning, education, development, and implementation o
agency privacy protections. Also included are drating tools, such as a policy template, a glossary, legal
citations, and sample policies.
Privacy, Civil Rights, and Civil Liberties Policy Development Template or State, Local, and Tribal
Justice Entities (SLT Policy Development Template)—Included in the Privacy Guide is the SLT Policy
Development Template, which was developed to assist SLT agencies in drating a privacy policy toaddress the inormation the agency collects, receives, maintains, archives, accesses, and discloses. The
provisions suggested are intended to be incorporated into the agency’s general operational policies
and day-to-day operations and to provide explicit and detailed privacy protection guidance to agency
personnel and other authorized source and user entities. Each section represents a undamental
component o a comprehensive policy that includes baseline provisions on inormation collection,
inormation quality, collation and analysis, merging, access and disclosure, redress, security, retention and
destruction, accountability and enorcement, and training. Sample language is included or each provision.
The Importance o Privacy, Civil Rights, and Civil Liberties Protections in American Law Enorcement and
Public Saety Training Video— This short video serves as a training tool to educate viewers, particularly line
ocers during roll call, on the privacy and civil liberties issues they may conront in their everyday work. The
video also addresses the liabilities associated with the ailure to adhere to sound policy and practice. This
overview reviews and proactively emphasizes the role line ocers have in the ongoing protection o citizens’
and community members’ privacy, civil rights, civil liberties, and other associated rights in the course o
ocers’ daily activities and calls or service.
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