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.

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

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 Notes:
1 There were eight separate requests that have been consolidated for purposes of this complaint. The complete Public Records Act request is attached.