“Know Your Rights,” Progressive Attorneys Tell Activist San Diego

FBI Attacks on Midwest Palestinian Solidarity Activists Prompt Meeting

by MARK GABRISH CONLAN

Copyright © 2010 by Mark Gabrish Conlan for Zenger's Newsmagazine * All rights reserved

PHOTOS, top to bottom: Kate Yavenditti and Alex Landon; Frank Gormlie

“People don't know what a long history of repression and harassment against Left-wing and progressive activists there has been in San Diego,” said Kate Yavenditti of the National Lawyers' Guild (NLG) to a well-attended meeting of Activist San Diego (ASD) at the Joyce Beers Community Center in Hillcrest November 15. She moderated a panel discussion that featured two other veteran progressive attorneys in San Diego, Frank Gormlie (also a journalist and publisher of the on-line O. B. Rag) and Alex Landon, and focused not only on recent government attacks on peace, social and environmental justice organizations elsewhere in the U.S. but the history of repressive law-enforcement actions against activists in San Diego.

The meeting was originally planned to be much larger in scope. ASD had invited Chicago-based activist Tom Burke, one of the 11 activists in seven cities who were targeted by the FBI in simultaneous sweeps on September 24. The FBI raided seven houses and an office in Chicago and Minneapolis, seizing computers and files. Agents handed subpoenas to testify before a federal grand jury to eleven activists in Illinois, Minnesota, and Michigan. The FBI also attempted to intimidate activists in California and North Carolina. They appeared to be targeting people involved in building solidarity with the struggle of the Palestinian people against U.S.-funded Israeli occupation, speaking out for the rights of Muslim Americans and also activists involved in environmental justice and animal rights.

Burke was supposed to speak at the November 15 ASD meeting, but his plane was stranded by a snowstorm in Wisconsin. (ASD founder Martin Eder, introducing the meeting, grimly joked that the FBI had caused the snowstorm.) An activist from the local Somali community was also supposed to speak, but never showed up. “We know the immigrant communities here in San Diego have been worried, preoccupied and in the shadows due to abuses by Immigration and Customs Enforcement (ICE), and we want to put that in the context of repression,” Eder said in introducing the meeting.

Yavenditti mentioned that most of the 11 Midwest activists targeted by the FBI are being represented by attorneys who belong to the NLG. “There have been a lot of other things going on lately, including events in San Diego,” she said. “We may or may not have known about, and we really haven't talked about, what your rights are. … We know that we can't just sit back and assume that we're not being watched and there isn't law enforcement interest in our community, because we as activists pose a threat and we need to be conscious about what we do and what our rights are.”

She cited another recent incident in which an activist working on the case of Bradley Manning, the Army private accused of leaking confidential information on the Afghanistan and Iraq wars to the WikiLeaks Web site, “was detained on his way back from Mexico and his computer, flash drive and all his research was confiscated.” Yavenditti mentioned that the “Know Your Rights” brochure her group puts out as a guide for activists in confrontations with law enforcement, which was distributed at the meeting, is also available online for download at http://www.nlg.org

Veteran San Diego activist Frank Gormlie began his part of the presentation with an account of local activism in the 1970's. “There was police repression,” he said. “The San Diego police did so-called 'field interrogations,' in which they could stop people without probable cause [the legal standard to make a search or stop legitimate under the Fourth Amendment] and demand ID's.” Though this was later ruled illegal by the U.S. Supreme Court, the local police figured out other ways to harass activists, including reporting them to their landlords and harassing printing companies who printed Left-wing and progressive publications.

“Then there were the agent spies,” Gormlie recalled, “who would come to the meeting, take notes, get contact information and disrupt the organizations. Remember that this was the Nixon era, 1968-1974. Nixon came in as a peace candidate, promising to end the war in Viet Nam, and instead he escalated the war. One hundred boys were coming home each week in body bags. There was a draft going on.”

While government repression against the Left certainly didn't start with Richard Nixon, Gormlie acknowledged, “Nixon upped the ante and introduced COINTELPRO [Counter-Intelligence Program] as a national program systematically to infiltrate and disrupt peace and justice groups. The San Diego Black Panthers were actually driven underground, and attorney Ted Bumer said he and others would get stopped for having too many bumper stickers on their cars.” While in other places – notably Oakland and Chicago – law enforcement staged raids on Black Panther headquarters and the homes of their members and killed them outright, in San Diego and Los Angeles they were more subtle, secretly sponsoring another Black nationalist organization, United Slaves (US), and using provocateurs to get Panthers and US members to attack and kill each other, Gormlie explained.

“In San Diego, the police had a Red Squad to go after anarchists, peaceniks and everyone else against the war,” Gormlie said. “You had to deal with the San Diego Police Department, the FBI, the National Security Agency, Naval intelligence and goodness knows what else.” Things escalated when the Republicans planned to have their 1972 convention in San Diego – and activists from all over the country, recalling the disruptions at the 1968 Democratic convention in Chicago, flocked here to get ready for it. As night follows day, Gormlie said, the FBI followed the activists and started harassing them – until a scandal involving a lobbyist for the International Telephone and Telegraph (ITT) conglomerate led to the cancellation of the 1972 Republican convention in San Diego and its relocation to Miami, where the Democrats had already scheduled their convention, so security measures were already in place.

According to Gormlie, Louis Tackwood, an African-American informant with the Los Angeles Police Department who later switched sides and gave interviews to activist writers about his activities disrupting Left and progressive groups, “broke out in 1971 with a horrible tale that during the 1972 convention in San Diego, provocateurs inside the convention would spark riots and fake assassination attempts. The plan was to confine the demonstrators on Fiesta Island, blow up the bridges connecting it to the mainland, and Nixon would use the attempted assassinations as an excuse to declare martial law.”

Another grim tale Gormlie had from San Diego's past was the Secret Army Organization (SAO), a Right-wing militia group descended from the 1960's version of the Minutemen, who had a relationship with the FBI that, as Gormlie described it, seemed similar to that between the official militaries and Right-wing paramilitary “death squads” in Latin American countries. According to Gormlie, the FBI and SAO would work together to terrorize Left-wing and peace activists. “They had an agent named Howard Berry Godfrey” – supposedly an informant infiltrating SAO on behalf of the FBI but really an active liaison between the two – “and they would leave little cards with pictures of people inside rifle-sight cross-hairs saying, 'You are now being targeted by the SAO.'”

Most of the recipients laughed these “warnings” off and didn't take them seriously – until January 6, 1972, when popular San Diego State University economics professor and anti-war activist Peter Bohmer received one at his office which read, “This time we left a sticker, next time we may leave a grenade.” A few hours later, while Godfrey was present in the car, an SAO member fired shots into Bohmer's home. He wasn't home, but two other activists, Shari Whitehead and San Diego Street Journal reporter Paula Tharp, were attacked. One bullet shattered Tharp's elbow; a second shot missed Whitehead but lodged in the wall above her head. The next day Godfrey gave the gun to Steve Christiansen, his FBI contact and, like Godfrey, a militant anti-Communist and devout Mormon. Christiansen held on to the gun for six months, thereby monkey-wrenching any investigation of the shooting.

According to Gormlie, SAO met its demise in a marvelously ironic fashion. “They bombed a porn theatre with a bunch of police chiefs inside,” he recalled. One result was that Christiansen was fired from the FBI. But law enforcement actions against San Diego's Leftists continued, including infiltrating local peace organizations and staking out the homes of activists, ostensibly to look for evidence of drug possession. (Gormlie said he himself nearly got caught in such a stake-out in 1973 when police raided an Ocean Beach apartment he was about to move into.) Gormlie said that in 1978 he requested his own FBI file under the Freedom of Information Act, and learned he had a so-called AMAX file, “which meant that in case of a national emergency, I would be one of the first people to be picked up.”

“The Red Squad is not dead in San Diego,” Yavenditti added. “In 2001, when the Biotechnology Industry Organization (BIO) was having its national convention in San Diego and local activists organized a protest called Biojustice, the police had books [files] on all the activists involved in the demonstrations.” She also recalled another recent incident in which “cops came to one activist's house and said they were told that 'anti-American comments' were being spoken at an event at this person's house. The first question we had about this is, is it happening to anybody else?”

“I can't foresee what they're going to do,” said local attorney Alex Landon. He called on local activists to maintain what he called “healthy paranoia” – recalling the old joke that just because you're paranoid doesn't mean that there aren't really people out to get you. His definition of “healthy paranoia” was “understanding that there are forces of evil out there and that we still have rights. Not enough people know what's in the Constitution and the Bill of Rights. Only 20 percent of Americans can name more than one freedom protected by the First Amendment – whereas 50 percent of Americans can name at least two characters on The Simpsons.”

Landon punctuated his presentation by reading aloud the Fourth and Fifth Amendments to the Constitution, noting that the Fourth Amendment protections against unwarranted searches and seizures are so sweeping the courts have recognized only two exceptions. One is called “exigent circumstances,” meaning that if the police are sure someone has actually committed a crime they can follow him into a house and arrest him. The other is to prevent immediate bodily harm. Other than that, police who want to enter a person's home and search first have to establish “probable cause” to believe a crime has been committed and that person is involved, and then must go before a judge to obtain a search warrant.

“If someone [from law enforcement] comes to your house, you have the right to tell them they don't have the right to visit you,” Landon said. “If you let the person in, then you're considered to have invited them and all sorts of things can happen. If they see something illegal in plain sight, then they can search without a warrant.” Landon also warned that if you have someone living in your house who's under a “Fourth Waiver” – a term of probation or parole by which they give up their Fourth Amendment protections and allow law enforcement officers to search them and their homes any time in exchange for being released from prison – the police can search the entire house unless you can establish that you have a room which is locked so that the person who's waived his or her Fourth Amendment protections never goes in there. (According to Landon, Fourth Amendment waivers used to be unusual conditions of probation or parole – usually in cases involving drugs – but now they're so routine virtually all probationers or parolees are forced to give up their rights to avoid or get out of jail.)

Another danger is if you don't want to let the police in – but one of your housemates does it. “If they've given permission, that can impact you as well,” Landon explained. He also explained that if officers apprehend you in a car, you have fewer rights. “They still have to have probable cause, but they can get you out of the car and pat you down, and if they see something in the vehicle that's contraband they can seize it and arrest you,” he explained. “They can also impound a vehicle and do an impound search.” He also said that if the cops stop you on the streets, you have even fewer rights: “they still have to have probable cause, but they can pat you down,” ostensibly to look for weapons that might put their own lives in danger. “If a police officer stops you on the street, do you have to comply?” Landon said. “If you're just walking on the street, no. If you refuse, you've got a situation and you have to deal with it.”

One case Landon discussed took place in Encinitas on June 26, 2009 at what one would think would be as pure an expression of Americans' political rights as one could imagine: a private reception to raise money for a political campaign. The candidate was Democrat Francine Busby, planning her third run for a traditionally Republican Congressional seat in North County. The incident took place at the home of Shari Barman and Jane Stratton, a Lesbian couple. At 9:30 p.m. – after Busby had already appeared, spoken and left – sheriff's deputy Marshall Abbott came to the home of Barman and Stratton, ostensibly responding to a noise complaint from a neighbor.

“Most of the guests had left,” witness Christine “Chris” Carlino recalled at an American Civil Liberties Union (ACLU) event last February. “The caterers were cleaning up, Busby’s staff was packing and nothing was happening that would indicate the police would show up. I was talking to Shari and someone came over and said there was a police officer looking for one of the homeowners. I thought maybe it was a parking issue. I saw this very large, young sheriff’s deputy coming from the left side of the house. I thought maybe he had walked all the way around and come in the back way.” Deputy Abbott asked Shari Barman to identify herself – which she did – and then asked her how old she was. When she refused to tell him, he grabbed her by the arm, aggravating a pre-existing injury, and said he would arrest her if she didn't answer his question.

“He not only arrested her, he grabbed her arm and twisted it as he slammed her down to the ground,” American Civil Liberties Union (ACLU) attorney Mike Marrinan explained. “Jane, her partner, came up and saw that Shari was on the ground. She explained that Shari had had shoulder surgery two months before and he should be careful, and he took his arm and knocked Jane, who’s in her 50’s, up against the wall without saying a word. Then he started backing up, while people were coming over and asking him what he was doing, and pepper-spraying the crowd.”

Carlino said she approached Berman just as Abbott was grabbing her arm and pushing her to the floor. “I couldn’t figure out what was going on,” Carlino said. “I thought I would identify myself as an attorney. I was scared, but I felt I had to go to Shari’s defense, so I started walking to their location. He got up and turned towards me, and I think I was the first person he pepper-sprayed. My eyes were burning, as if I’d just held them to an open flame, and since I’d never been pepper-sprayed before I was scared to death. I was worried that I’d be blinded for life. While I was on the ground, I was hearing pandemonium and I couldn’t tell what was going on because I couldn’t see. A woman came over and asked if she could help. She walked me into the bathroom and I started splashing cold water on my face. By the time I came out of the bathroom, Shari had been handcuffed and taken to a police car. … Deputy Abbott said he only pepper-sprayed people who posed a threat to him,” Carlino said.

According to Landon, the incident recently ended with a $1.2 million settlement paid by San Diego County to the people victimized by Abbott and his fellow deputies. But Abbott is still on the force, and San Diego County District Attorney Bonnie Dumanis refused to file charges against him or any of the other deputies involved on the ground that they didn't do anything wrong.

Landon's message to the crowd at the ASD event is to know your rights and be willing to assert them – but also not to provoke a confrontation with law enforcement when you're in a “position of weakness.” He said that if the police don't like the way you're responding to them, they can make what are called “attitude arrests.” Both he and Yavenditti warned against trying to say anything to the police, and especially against trying to deflect police attention with sarcasm. Yavenditti said her son used to get in trouble all the time when he was 15, rode a skateboard and affected a punk appearance.

Another concern Landon raised is the increasing popularity of the Internet in general and so-called “social network” sites, including Facebook, in particular. He said that law enforcement officers constantly monitor those sites – and they have a perfect right to do so. They also have a right to eavesdrop on all wireless communications, including cell phones and mobile Internet use, on the legal theory that communications going out over wires have a reasonable expectation of privacy, but people using wireless equipment are essentially broadcasting – and that's fair game for law enforcement.

Other topics Landon discussed included the Fifth Amendment and the continuing legal assault by law enforcement and Right-wing activists on the so-called Miranda warnings and the “exclusionary rule” by which they're enforced, which prohibits the use of illegally seized evidence in criminal prosecutions. He also discussed the constitutional rights of minors – which, contrary to the belief of some law-enforcement officials, actually do exist, Landon said – and said that “the problem is that law enforcement can intimidate people and lie to them, and they do.”

For more information on your rights in connection with law enforcement, especially involving legal political and social activism, visit the National Lawyers' Guild online at http://www.nlg.org and download their pamphlets, including the Know Your Rights brochure. NLG also has a pamphlet available called Operation Backfire, detailing how the federal government currently regards environmental and animal-rights activists as the number one “domestic terrorism” threat, and created a “Greenscare Hotline” several years ago as a first line of defense for environmental and animal rights activists who have been contacted by the FBI. Callers are referred to NLG attorneys in their area whose assistance ranges from telephone consultations to direct representation. The hotline is: 1-(888) 654-3265 [1-(888) NLG-ECOL].