Attorney General Bill Lockyer
1300 “I” Street, Suite 1740
Sacramento, CA 95814
April 21, 2004
Re: Formal Complaint Regarding Intelligence Gathering Practices of the Fresno
County Sheriff And Request for Investigation and Corrective Action
Dear Attorney General Lockyer,
For the first six months of 2003, Aaron Kilner, a member of the Fresno County
Sheriff Department’s Anti-Terrorism unit infiltrated and conducted undercover
surveillance of Peace Fresno, a community organization based in Fresno California.
Since then, Peace Fresno has sought information from the Fresno County Sheriff, the
Federal Justice Department, and the FBI about why this unconstitutional surveillance
occurred and what information was gathered. We have not received a complete
accounting from any source. We are therefore writing on behalf of Peace Fresno to lodge
a formal complaint regarding the intelligence gathering practices of the Fresno County
Sheriff’s Department and request an investigation and corrective action.
Activities of the Fresno County Sheriff’s Department
Peace Fresno is a community organization of largely Fresno residents who
advocate for nonviolence, peace, and social justice. In 2003, the organization met weekly
at the Fresno Center for Nonviolence in the evenings. While the organization’s meetings
were open to new and unknown persons, members of Peace Fresno expected those who
attended to identify themselves truthfully and join in the spirit of collaboration to bring
about progressive social change, including but not limited to the end of the United State’s
war against and occupation of Iraq.
In January 2003, a man identifying himself as Aaron Stokes started attending
Peace Fresno meetings and events. When members of Peace Fresno asked what kind of
work he did, he claimed to not be working because he had received a small inheritance.
He distributed flyers for Peace Fresno, participated in street protests, and joined members
of Peace Fresno on a bus trip to Sacramento on June 23, 2003 to protest corporate
globalization or agriculture. He also took notes during Peace Fresno meetings.
On August 31 and September 3, 2003, the Fresno Bee ran news stories about the
death of a member of the Fresno County Sheriff’s Department named Aaron Kilner. The
Bee ran a picture of Mr. Kilner, and members of Peace Fresno immediately recognized
that Aaron Kilner was the same person as Aaron Stokes who had been attending their
meetings for the past six months. In fact, Aaron Stokes was a false name that had been
provided by Mr. Kilner during the course of his undercover surveillance.
Efforts to Obtain Information
Peace Fresno members acted quickly to find out how and why this surveillance
happened. On September 24, 2003, attorney Catherine Campbell wrote on behalf of
Peace Fresno to informally ask Fresno County Sheriff Richard Pierce whether Aaron
Kilner was conducting an investigation pursuant to directions from the Sheriff
Department or another law enforcement agency.
Sheriff Pierce’s September 30, 2003 response indicated that Aaron Kilner was, in
fact, a detective with the Sheriff Department’s Anti-Terrorism Unit, but indicated that
“Peace Fresno” was not the subject of an investigation by the Sheriff Department. The
response also claimed, however, that members of the Sheriff Department “may visit any
place and attend any event that is open to the public, on the same terms and conditions as
members of the public generally.” The response also did not indicate whether individual
members of Peace Fresno were being investigated or whether Detective Kilner’s
undercover investigation was being conducted under the direction of some other law
enforcement agency.
On October 27, 2003, Catherine Campbell and the ACLU of Northern California
followed up with a Public Records Act Request seeking (1) several categories of
information related to the surveillance of Peace Fresno; (2) departmental policy regarding
surveillance and monitoring of political organizations; (3) departmental policy regarding
the retention of officer’s notes; and (4) departmental policy implementing the Attorney
General’s guidelines laid out in “Criminal Intelligence Systems: A California
Perspective.”1
On November 6, 2003, Fresno County Counsel responded on behalf of the
Sheriff’s Department indicating that they had no records on Peace Fresno, no
departmental policy regarding the retention of officer’s notes, and no policy
implementing the Attorney General’s guidelines. The Department refused to release any
of the surveillance policy documents that were requested.
On November 22, 2003, Catherine Campbell and the ACLU of Northern
California again wrote to request policies regarding records retention. On December 8,
2003, the County Counsel responded that no such policy exists.
1
There were eight separate requests that have been consolidated for purposes of this complaint. The
complete Public Records Act request is attached.
Receiving no substantive answers about what happened from the Sheriff’s
Department, Peace Fresno next sought information from federal agencies. The Fresno
County Sheriff Department is part of the FBI’s Joint Terrorism Taskforce – perhaps the
FBI had Kilner’s notes. To follow up on this possibility, On January 29, 2004 Catherine
Campbell and the ACLU filed requests on behalf of Peace Fresno and its members under
the Freedom of Information Act (FOIA) and the Privacy Act, seeking records and
documentation about the undercover surveillance of Peace Fresno. On March 12, 2004,
the FBI responded that the agency did not have any responsive documents.
After over six months of writing and questioning the Sheriff Department, the
US Department of Justice, and the FBI, members of Peace Fresno are still left
wondering why their organization was infiltrated, what information was collected,
who authorized the surveillance, are files being maintained on them and Peace
Fresno, and if their organization is still being monitored by law enforcement.
The various public record requests have yielded confusing, ambiguous and
seemingly contradictory answers. The Fresno County Sheriff and the FBI both claim they
do not have records on Peace Fresno, but members of Peace Fresno saw Aaron Kilner
taking notes during their meetings. The Fresno County Sheriff claims that Peace Fresno
was not under investigation, but has not denied directing Aaron Kilner to monitor Peace
Fresno meetings, and, in fact, claims the right to monitor such meetings. The Sheriff
claims to meet “stringent federal and state guidelines for intelligence gathering,” but has
no policies or procedures implementing the Attorney General’s guidelines laid out in
“Criminal Intelligence Systems: A California Perspective.”
In short, the answers that we have received are incomplete and do not begin
to explain why a member of the Fresno County Sheriff Anti-Terrorism Unit
conducted undercover surveillance on a community peace and social justice
organization for nearly six months. The answers do nothing to assure the public that
such activity will not happen in the future and, in fact, is not continuing at the present
time. And, the responses we have received do not hold out the possibility that a more
complete accounting will be forthcoming in the future.
Authority to Investigate and Take Corrective Action
We therefore request on behalf of Peace Fresno that you investigate this matter
pursuant to the authority you possess under Article V, Section 13 of the California
Constitution, which speaks to the Attorney General’s power and duty as chief law
enforcement officer of the State. That section provides that the Attorney General has the
authority to “see that the laws of the State are uniformly and adequately enforced.” It also
provides that the Attorney General has “direct supervision over…every sheriff…in all
matters pertaining to the duties of their respective offices.” It is therefore clear that you
have the authority to investigate and act on this complaint.
The Undercover Surveillance Conducted by the Fresno County Sheriff Department
Violated the California Constitutional Right to Privacy
The undercover surveillance described above violates the free speech, assembly,
and privacy rights guaranteed under the California state constitution for the reasons more
fully explained by our Supreme Court in White v. Davis (1975) 13 Cal.3d 757. White was
the first Supreme Court case interpreting the California constitutional right to privacy. In
interpreting the scope of the constitutional right, the court relied heavily on the ballot
argument in favor of the right to privacy which indicated its purpose was to take a stand
against the “proliferation of government snooping and data collecting [that] is threatening
to destroy our traditional freedoms.’” White 13 Cal.3d at 774.
While the specific issue in White v. Davis involved surveillance in a college
classroom by officers posing as students, the case was not limited to that context – the
court also noted that the “routine stationing of covert, undercover police agents in
university classrooms and association meetings, both public and private, constitutes
‘government snooping’ in the extreme.” White v. Davis 13 Cal.3d at 775-776
(emphasis added).
Guidelines issued recently by your office reflect this concept as well. According
to Criminal Intelligence Systems: A California Perspective, “White is a warning to law
enforcement in California that it cannot operate from the premise that it can gather
intelligence on citizens’ activities regardless of any articulable connection to unlawful
action.” The manual also concludes that “put bluntly, it is a mistake of constitutional
dimension to gather information for a criminal intelligence file where there is no
reasonable suspicion of the existence of a criminal predicate.”
The six-month long undercover surveillance of Peace Fresno was not only an
unjustified intrusion, but also an intrusion of constitutional dimension.
Request for Investigation and Corrective Action
In light of this substantial violation of the California constitution, we request that
your office take the following action:
1. Open a formal investigation of the Fresno County Sheriff Department’s
undercover surveillance of Peace Fresno. Why did Aaron Kilner attend Peace
Fresno meetings under a false name and mislead its members of six months?
Who authorized his attending Peace Fresno meetings? What happened to
Aaron Kilner’s notes? Are there time cards or other records that document
Kilner’s activities during that six-month period? Was Kilner the Fresno
County Sheriff Department’s representative on the Joint Terrorism Task Force
(“JTTF”)? If so, was the FBI involved in the decision to monitor Peace
Fresno? If the Sheriff Department really has no records on Peace Fresno, were
the records transferred to another agency? Despite the absence of notes or
files, did the Department nonetheless direct Kilner to monitor Peace Fresno
meetings?
In a letter regarding intelligence gathering practices sent by you to the ACLU
on September 12, 2002, you wrote that “in the event you have specific facts
that indicate any law officers are systemically violating California’s right to
privacy, please feel free to provide me that information. I am happy to review
those matters.” We appreciate your willingness to review these issues and ask
you to open a formal investigation into the surveillance of Peace Fresno.
2. Investigate the role of the Fresno County Sheriff’s Department Anti-Terrorism
Unit. Does the Anti-Terrorism Unit have a practice of conducting undercover
surveillance of community organizations focusing on peace and social justice
issues? How many investigations of political, religious, and/or community
organizations have been conducted by the Fresno County Sheriff Department
Anti-Terrorism Unit? The Sheriff Department would not provide us with
copies of any surveillance guidelines -- are there guidelines in place that
govern such surveillance? If so, do the guidelines make it clear that such
surveillance is not permissible in the absence of reasonable suspicion of a
crime? What is the relationship between the Sheriff’s Anti-Terrorism Unit and
the FBI?
3. Issue specific guidelines to the Fresno County Sheriff. The undercover
surveillance of Peace Fresno by a member of the Fresno County Sheriff
Department is very disturbing. Equally disturbing are the assertions by the
Fresno County Sheriff that his deputies have the right to conduct such
surveillance and the fact that the Sheriff Department has not implemented the
guidelines issued by your office in September.
In the same September 12, 2002 letter referenced above you wrote: “If
I…conclude that law enforcement at any level in California is confused about
the applicability of California constitution, statutory or case law…I will issue
specific guidance though bulletins and training, as appropriate.” The
surveillance conducted by the Sheriff Department as well as the assertions of
the right to conduct such surveillance provide ample evidence of “confusion.”
We therefore urge you to issue a directive to the Fresno County Sheriff clearly
stating that law enforcement may not monitor or surveil individuals or
organizations participating in political, community, or religious activity in the
absence of reasonable suspicion of a crime. We have enclosed sample
guidelines.
4. Publicly Release the Results of Your Investigation and Underlying Material.
The findings, results, and underlying information developed during the course
of your investigation should be released to the public. There is great public
concern about government overreach, privacy, and constitutional rights that
are increasingly threatened – concern that is especially heightened given the
long history in our country of governmental surveillance of political
organizations. We therefore strongly urge you to publicly release all
information developed during the course of your investigation.
Peace Fresno stands ready to cooperate in any way. We look forward to hearing
from you and can be reached at 415-621-2493. Thank you for your investigation into this
matter.
Sincerely,
Mark Schlosberg
Police Practices Policy Director
ACLU of Northern California