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CITY OF MIAMI CIVILIAN INVESTIGATIVE PANEL REPORT ON THE FREE TRADE AREA OF THE AMERICAS

SUMMIT

July 20, 2006

Larry R. Handfield, Chairperson

Janet McAliley, Vice Chairperson Andrew Fishman Rudy de la Guardia, Treasurer Bess McElroy Thomas J. Rebull, Secretary Timothy Moore Tanya J. Brinkley Tangier Scott Danny Couch Brenda B. Shapiro Otis Davis Fred St. Amand

CITY OF MIAMI ELECTED OFFICIALS

Manuel A. Diaz, Mayor

Angel Gonzalez, Chairman, District 1

Linda M. Haskins, District 2

Joe Sanchez, District 3

Tomas Regalado, District 4

Michelle Spence-Jones, District 5

The Honorable Mayor and Members of the City of Miami Commission 3500 Pan American Drive Miami, FL 33133 Dear Mayor and City Commissioners: After considerable effort, teamwork and dedication, the Civilian Investigative Panel (CIP) has completed its task of conducting an in-depth and objective investigation into police actions in preparation for and during the 2003 Free Trade Area of the Americas (FTAA) Summit in Miami. The CIP members and staff have been resolute in their commitment to provide a meaningful and effective document that the law enforcement community in general and the Miami Police Department (MPD), in particular, can use in developing and/or improving police-community relations, policies and procedures that enhance delivery of law enforcement services. The Panel wishes to extend its appreciation to the several organizations, agencies and individuals that contributed their advice, expertise, and/or testimony to this project. The attached Report provides an account of the creation and challenges faced by the CIP; a comprehensive, historical analysis of law enforcement reports, activities, and actions surrounding the FTAA; and the methodology by which issues were identified and addressed. It also analyzes the successes, miscues, and faults that resulted from planning and policing the FTAA event. Finally, the report makes detailed, specific recommendations directed to the Miami Police Department. The recommendations are intended to provide for a process of effectively dealing with mass demonstrations while recognizing the duties, rights, and responsibilities owed to and by citizens, demonstrators, the business community, and law enforcement officers in an effort to build safer communities while fostering democracy and constitutional protections. They are also intended to bring awareness to the MPD that it must be ever vigilant in its duty to monitor the individual and collective officers’ conduct. The CIP welcomes your comments, thoughts, suggestions, questions, or any feedback specific to matters presented in this report. Respectfully, Larry R. Handfield, Chairperson

TABLE OF CONTENTS I. CIP PANEL MEMBERS......................................................................................................... II. CIP ADMINISTRATIVE PERSONNEL .................................................................................. III. CIP INDEPENDENT INVESTIGATORS ................................................................................ IV. EXECUTIVE OVERVIEW ...................................................................................................... V. RECOMMENDATIONS.......................................................................................................... VI. SUBCOMMITTEE REPORTS

Inter/Intra Agency Communications ..................................................................................... Complaints ........................................................................................................................ Policies and Procedures .....................................................................................................

VII. APPENDIX

Appendix #1 – Summary of Professor Donald Jones’ January 19, 2006 Testimony before the Civilian Investigative Panel ...........................................................

Appendix #2 – Summary of Court Litigation on FTAA Cases .................................................

CIP PANEL MEMBERS Larry R. Handfield, Esquire is the founding partner of The Handfield Firm. Larry R. Handfield is a member in good standing of The Florida Bar; the American Bar Association; and the Dade County Bar Association. He serves as Chairperson of the Civilian Investigative Panel (CIP) for the City of Miami and the Public Health Trust/Jackson Health Systems, the nation’s largest hospital. As Chair of the Public Health Trust, Mr. Handfield oversees an annual budget of $1.7 billion and over 11,000 employees. Chairman Handfield received a Bachelor’s Degree from Bethune-Cookman College, a Juris Doctorate from Howard University, and a Doctorate Degree of Law from Bethune-Cookman College. Janet R. McAliley has spent a lifetime in community service. She served sixteen years as an elected member of the Dade County School Board and currently serves as Vice Chairperson of the CIP. In addition, Ms. McAliley is the past president of the Florida Immigrant Advocacy Center Board of Directors. Ms. McAliley received a Bachelor’s Degree from the University of Florida. Tanya J. Brinkley, Esquire is an attorney with Brinkley & Henrys, P.A. and is a Civil Traffic Infraction Hearing Officer for the 11th Judicial Circuit. She has been admitted to the Supreme Court of Florida and the United States District Court for the Middle and Southern Districts of Florida. Ms. Brinkley received a Bachelor’s Degree from Howard University and a Juris Doctorate from the University of Miami. Danny Couch has dedicated his life to community service and activism. He has spent the last twenty years on numerous municipal, county, and community non-profit boards in Miami-Dade County. Additionally, Mr. Couch has spent the last seven years as a deacon at the St. James Baptist Church in Coconut Grove, Florida Otis Davis is a retired police officer whose law enforcement career includes twenty-two years of service with the City of Miami Police Department and thirteen years of service with the Opa-Locka Police Department. Mr. Davis is currently working to restore and convert a former police precinct into a police officers’ museum. The museum will also house classrooms that aim to provide tutoring to students in the Overtown area. Andrew Fishman, Esquire, a native of Miami, is an attorney in private practice, with considerable experience in litigation and health care issues. Previously, he served as an internal consultant to Vice President Al Gore’s National Performance Review, a group vested with the goal of reducing inefficiency and ineffective work methods within the Department of Labor. Additionally, Mr. Fishman has served on the Board of Directors for Greater Miami Legal Services, and he is actively involved in the Greater Miami Jewish Federation. He served as Founder and Chair of the Black- Jewish Alliance. Mr. Fishman obtained a Bachelor’s Degree in Political Science and Urban Studies from Vassar College and earned his Juris Doctor and Master’s in Public Health from Emory University. Rudy de la Guardia, Esquire is a partner in the law offices of Brooks, Frank & de la Guardia. He has held the rank of Ambassador Extraordinary and Plenipotentiary on Special Mission and Honorary Consul for the Republic of Panama. Mr. de la Guardia is a member in good standing of

The Florida Bar and the United States District Court for the Southern District of Florida. He received a Bachelor’s Degree from the University of Miami and a Juris Doctorate from Thomas M. Cooley Law School. Bess McElroy is an active and highly respected individual who serves in numerous diverse community and professional organizations, as evidenced by her leadership in several of these groups. Most notable is the consensus she built among several community-based groups when she served as President of a local grassroots organization which led to the establishment of the CIP as an impartial citizen’s oversight panel for the Miami Police Department—one of the few with subpoena power. She is committed and dedicated to serving her community. Ms. McElroy received her Bachelor’s Degree from Florida International University and a Master’s Degree from St. Thomas University. Timothy Moore was born in Los Angeles, California and served in the United States Air Force as an Intelligence Officer. As an additional duty, he devoted time to various disciplinary panels reviewing both officer and airmen misdemeanors. Mr. Moore currently serves as President of Moore Overseas, based in Miami, Florida. He has worked for over 30 years throughout Latin America and the United States in the field of heavy construction and mining. Mr. Moore presided over an advisory group to the National Police in Colombia responsible for evaluating the disposition of expatriates arrested in that country. He presently serves on the Board of Directors for Grove Isle Condominium and is active with the Coral Gables Methodist Church. Mr. Moore graduated with a Bachelor’s of Arts in Political Science from Occidental College. Thomas J. Rebull, Esquire is an attorney with the law firm of Broad and Cassel. He is a member in good standing of The Florida Bar and recently served on its Code and Rules of Evidence Committee. Mr. Rebull received a Bachelor’s Degree from Boston University and a Juris Doctorate from the American University, Washington College of Law. He lives in the City of Miami with his wife and two daughters. Dr. Tangier Scott is a Team Manager with Miami-Dade Community Action Agency with many years of professional experience. She is a national presenter in the area of Youth and Family Relations and a certified trainer of Kingian Nonviolence. Additionally, she is an adjunct professor at Nova Southeastern University and Florida Memorial University (formerly known as Florida Memorial College). Dr. Scott holds a Doctorate Degree in Child, Youth, and Family Studies from Nova Southeastern University, and a Master’s and Bachelor’s Degree in Criminal Justice and Public Administration, respectively, from Florida International University. Brenda B. Shapiro, Esquire is an attorney at the Law Offices of Brenda Bernstein Shapiro specializing in Family Law. She is a member in good standing of The Florida Bar, the American Bar, and the Dade County Bar Associations. Ms. Shapiro received both a Bachelor’s Degree and Juris Doctorate from the University of Miami. She has also served on and chaired the City of Miami Community Relations Board. As a community relations professional, Ms. Shapiro trained Miami Police Department cadets in community relations. Fred St. Amand is the CEO of Valparaiso United Services, Inc. and Pax-Villa Funeral Home. He has been a prominent leader of the Haitian-American Community for over forty years and has worked directly with resident associations and community based organizations to improve the

quality of life in the Little Haiti area. Mr. St. Amand received a Bachelor’s Degree from Southwestern State University.

CIP ADMINISTRATIVE PERSONNEL

Shirley E. Richardson Executive Director

Carol A. Abia

Assistant Director

Denise Minakowski Chief Investigator

Donald F. March, Jr.

Research Analyst

Jackie Gutierrez Community Relations Liaison

Ana Marie Prentice

Litigation and Investigative Support Specialist

Ekandem Essiet Administrative Aide II

Blondy Dores Typist Clerk III

Charles C. Mays, Esquire Independent Counsel

CIP INDEPENDENT INVESTIGATORS

Lee S. Goldwich Juan C. Rey

Horizon Investigations, Inc.

Jeannie D. Rogers Uptown Investigative Agency, Inc.

CITY OF MIAMI CIVILIAN INVESTIGATIVE PANEL REPORT ON THE FREE TRADE AREA OF THE AMERICAS SUMMIT

EXECUTIVE OVERVIEW

INTRODUCTION The Civilian Investigative Panel (CIP) embarked on a fact-finding effort to review law enforcement actions undertaken by the City of Miami Police Department (MPD) and assisting law enforcement agencies during the demonstrations surrounding the Free Trade Area of the Americas Summit (FTAA) held in Miami, Florida, from November 17 - 21, 2003. This report presents the findings, analyses, and recommendations resulting from that independent, investigative review. The expectation is that this report will be considered by the MPD to enhance the development and implementation of policies for policing future large protests, demonstrations, and assemblies, and continuing those policies and practices that best serve the community. At the outset, it must be noted that after protracted litigation, the CIP was ultimately unsuccessful in obtaining a copy of the Operational Plan that was prepared and utilized by the MPD for policing the FTAA. The CIP deemed the Operational Plan significant because, among other reasons, the MPD After Action Reports made repeated assertions that the Operational Plan contained policies governing the conduct of the MPD personnel and its assisting agencies. The CIP sought to evaluate the extent to which the Operational Plan addressed and provided for the protection of constitutional guarantees and coordinated training amongst the law enforcement agencies that assisted the MPD. Should the Operational Plan be released at a future date, the CIP will review the same and, if necessary, publish its comments and evaluation in an addendum to this report. PURPOSE The purpose of this report is to: (1) set forth findings with respect to all complaints filed with the CIP alleging police misconduct; (2) comment on the effectiveness of and limitations on the various mutual aid agreements entered into by the MPD and law enforcement agencies that rendered assistance to the MPD during the FTAA; (3) ascertain the nature and quality of the law enforcement command structure that was set in place for the FTAA; (4) examine the effectiveness of the communications systems between the MPD and its assisting law enforcement partners; (5) evaluate the Rules of Engagement adopted by the MPD, particularly with respect to the use of force and the use of less lethal weaponry; (6) assess the training provided by the MPD to its personnel and assisting agencies in preparing for the FTAA protests, particularly with respect to the preservation of First and Fourth Amendment rights of individuals who chose to assemble in a public forum; (7) identify systemic problems, if any, with regard to the mass arrests and processing of arrestees; and (8) ascertain to what degree, if any, the local media contributed to an apprehension that self-proclaimed “anarchists” would engage in acts of violence and vandalism. METHODOLOGY

The CIP conducted several public hearings where sworn testimony and or statements were obtained from civilians, expert witnesses, and MPD officials; reviewed multiple volumes of MPD and other law enforcement agency reports; obtained and reviewed MPD training materials; reviewed hundreds of hours of video tapes of the FTAA demonstrations; obtained and analyzed pertinent MPD departmental orders; reviewed over 200 arrest affidavits pertaining to the FTAA protests; reviewed court records pertaining to the prosecution of individuals arrested during the FTAA protests; made inquiries and analyses regarding the MPD’s response to and compliance with findings and recommendations made by the United States Department of Justice in its investigation of the MPD pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141; obtained and reviewed depositions of MPD officials and other witnesses and documents generated in federal and state civil litigation arising out of the FTAA protests; and investigated and reached findings with respect to FTAA protest-related complaints filed with the CIP. (Some of the documents reviewed included, but were not limited to the Miami-Dade County Police Department After Action Report, Miami-Dade County Independent Review Panel Report, Seattle and Washington, D.C. Reports and the American Civil Liberties Union Report.) Members of the Panel divided into separate subcommittees, addressed specific areas of concern, and made recommendations to the full Panel. In certain instances their work overlapped.

FINDINGS 1. The MPD received assistance from local, state, and federal law enforcement agencies in

order to augment security during the FTAA. Many of the assisting law enforcement partners had entered into a mutual aid agreement with the MPD, thereby allowing such agencies to exercise police powers in the City of Miami.

2. For several months preceding the FTAA, the local media devoted considerable coverage

to violent protests and wanton vandalism that had taken place in other locations where international economic conferences were held. Although not quantifiable, repeated television images of violent protestors at such events no doubt contributed to an apprehension that similar chaos and violence would befall the City of Miami during the FTAA.

3. The MPD prepared and disseminated to its partner agencies an Operational Plan for the

FTAA. Subsequent to the FTAA, and after receiving complaints from citizens alleging police misconduct, including the violation of constitutional rights, the CIP sought to obtain from the MPD a copy of the Operational Plan via a public records request pursuant to § 119.07, Fla. Stat. (2003). After lengthy litigation, however, the Third District Court of Appeal ruled that the Operational Plan was exempt from public disclosure. Thus, the CIP is unable to comment upon the Operational Plan and how it influenced law enforcement activities during the FTAA.

4. The MPD issued Special Events Permits for various groups to stage public assemblies and

other gatherings during the FTAA to express their views. There is no evidence that the MPD denied a permit to any group or otherwise unreasonably impeded the processing of

permits. The City of Miami Community Relations Board worked in tandem with the MPD to facilitate the permitting process.

5. Some individuals who wanted to attend forums for which a Special Events Permit had

been issued were either prevented from or hampered in doing so by law enforcement officers from agencies other than the MPD. However, the MPD did nothing to assist such persons.

6. Except for a contingent of MPD undercover officers dressed in civilian attire, MPD

personnel were clearly identified as MPD officers by wearing uniforms that displayed identification numbers on the front and rear. (During the course of the demonstrations, some markings faded or were marred by liquids tossed during demonstrations.) Officers from the assisting agencies did not, however, display identification, and therefore were not as easily identifiable.

7. According to records obtained from the Miami-Dade State Attorney’s office, 219 individuals

were arrested and incarcerated during the FTAA protests. An analysis of the arrest affidavits and court records revealed that the overwhelming majority of the arrestees were charged with misdemeanors such as: unlawful assembly (31), failure to obey (83), obstructing a sidewalk or street (5), and loitering or prowling (25). There were 21 cases nolle prossed after Pre-Trial Intervention.

8. The State Attorney issued a nolle prosse or a “no-action” in 129 of the 219 cases, while

many other cases were dismissed by the court. As of January 2006, only four of the arrests (one felony and three misdemeanors) have resulted in a conviction.

9. Orders to disperse or be subject to arrest were communicated via a bullhorn, which oft-

times proved to be an ineffective method for informing a crowd of people, particularly those toward the rear of the crowd.

10. When orders to disperse were issued, law enforcement officers did not provide clearly

defined dispersal routes which, in turn, led to confusion and, in some instances, arrests and incarceration.

11. Less lethal weapons and munitions were utilized by law enforcement officers during the

FTAA protests. At times, these weapons were deployed in a manner inconsistent with the manufacturer’s guidelines and user manuals, MPD Departmental Orders, Standard Operating Procedures, and constitutional guarantees.

12. Except for a small number of people, the protestors and demonstrators were not violent or

disruptive. 13. Most officers conducted themselves admirably, professionally, and with considerable

restraint and discipline, even when they were subjected to acts of violence and other indignities. However, instances of police misconduct were observed.

14. Some demonstrators were profiled, unlawfully searched, detained, and/or arrested.

RECOMMENDATIONS 1. The MPD should play a lead role in convincing all South Florida agencies to abide by the

tenets of an Incident Command System, whereby all agencies and jurisdictions are coordinated in their planning and operations, acting under and committed to a common set of priorities, objectives, and strategies, and unified under a single command.

2. With Miami as the planning, requesting, and host agency with primary jurisdiction, a single

command position should rest with its police chief. Support relationships and internal command structures for the individual agencies would remain intact, operating under, complementing, and sustaining the approved operational plan as agreed upon by each agency in the pre-event planning stage.

3. The command structure must be in writing, transparent, and articulated in advance to all

involved parties, accompanied by written commitments from all participating agencies. 4. The MPD should continue to employ a joint system of intercommunications between and

amongst visiting jurisdictions and, where necessary, correct any deficiencies to ensure an accurate and current flow of information.

5. The mutual aid agreements should clearly designate a communication system for

command transmissions, and all visiting jurisdictions must be familiar with the command mechanism.

6. The MPD should employ a joint information system to facilitate the formatting and delivery

of unified messages to the public, demonstrators, by-standers, media, and commanders in the field.

7. In events such as the FTAA where months of planning were involved, the home

jurisdiction, as a matter of course, should participate in the planning, coordination, or negotiation of conditions for events with community leaders and civic or labor organizations, for the time period during which such events are to take place within the City.

8. All agreements and policies must be communicated to each of the visiting agencies.

Communicating these agreements limits misunderstandings and assures the public of the right to freedom of expression while engaging in lawful activities, so that persons wishing to attend permitted peaceful events are provided protection to do so.

9. The MPD Rules of Engagement or use of force continuum should continue to be the

standard employed by all assisting agencies for events occurring within the boundaries and jurisdiction of the City of Miami.

10. A committee or arbitration system should be established and in place post-event to resolve

disputes not addressed or capable of being addressed during the event. These issues may involve violations of established and agreed upon operating procedures, misconduct allegations, and costs and liability issues.

11. MPD should conduct affirmative training for its officers on the protection of First Amendment rights. It was evident that MPD was not adequately prepared to handle the intermingling of peaceful demonstrators with violent protestors. Police officers should be facilitators of First Amendment rights and only take enforcement action when there is a violation of the law. Dialogue is encouraged between law enforcement and organizations concerned with the preservation of First Amendment rights.

12. MPD should have a negotiator available to be utilized in areas where un-permitted

assemblies and marches are taking place. The negotiator would facilitate the flow of information, engage in discussions with the un-permitted groups, and provide clear guidance and explanations.

13. MPD should have employed the extraction teams more frequently rather than less lethal

weapons and munitions. 14. MPD should inform and reassure protestors, before and during an event, that police

officers will respect their right to free speech and protest, so long as the demonstrations are conducted peacefully and through the proper avenues.

15. All uniformed police officers should display their agency name, name tag, and/or

identification number at all times. Most MPD personnel were readily identifiable, an example for other agencies as to minimum identification requirements.

16. MPD should reinforce Departmental Order 11.6.13.3 regarding courtesy. “Even in the face

of great provocation, they should be diplomatic in the performance of their duties; and they shall serve the City in the discharge of their duties by controlling their tempers and exercising the utmost patience and discretion.”

17. MPD should reinforce Departmental Order 8.4.2.2 regarding prisoners’ personal property.

“Personal property taken from prisoners will be checked in at the Booking Desk at the Miami-Dade County jail.”

18. All dispersal orders should be audible, in all applicable languages, and followed by

adequate time to disperse along with the communication of a viable dispersal route. MPD should research and purchase other sound amplifying equipment to communicate dispersal orders. Additionally, any future operations of this type should involve planning, training, and clear guidance to all participating agencies regarding the issuance of dispersal orders.

19. MPD should provide training to all officers on alternatives to arrest for minor infractions.

When determining the “least restrictive means” of government action, the department should re-examine the arrest policy to determine whether ticketing is sufficient to accomplish crowd control. Orders to disperse, when disobeyed, give officers the preferred option to ticket the non-compliant citizens rather than arrest them.

20. Testing designed to determine whether content was effectively communicated should be part of all training, just as personnel are required to demonstrate a mastery of physical skills.

21. Course content should include the substance and application of the First and Fourth

Amendments. 22. Constitutional law professors from the many law schools easily accessible to South Florida

should be included among the credentialed experts enlisted to design training material for police personnel. Training should be ongoing, and the experts enlisted to develop training curricula should be selected from the local academic legal community.

23. More time needs to be devoted to training in constitutional protections and substantive

legal issues. 24. Change SOP 25 Section 1-B to include constitutionally sufficient language to ensure that

the use of less lethal weapons is permissible when the officer “reasonably believes” that imminent harm threatens the officer or other persons, including the subject.

• Language should include guidance to the officer as to when, in relation to the time

of the offense, less lethal weapons are used. • Language should be added to distinguish between passive and aggressive

classes of demonstrators. • Language should be added to distinguish between groups and individuals.

SUBCOMMITTEE REPORTS

INTER/INTRA-AGENCY COMMUNICATIONS SUBCOMMITTEE The Inter/Intra Agency Subcommittee, composed of Subcommittee Chairperson Rudy de la Guardia, Panel Members Jaime Perez (resigned), Otis Davis, Tanya Brinkley, and Timothy Moore, was created to review the mutual aid agreements entered into between the MPD and other law enforcement agencies pursuant to the Florida Mutual Aid Act, §§ 23.12—23.127, Fla. Stat. (2003), the command and supervisory structure associated therewith, and the effectiveness of inter-agency communications concomitant to multi-agency operations. The Florida Mutual Aid Act authorizes state and local law enforcement agencies to enter into voluntary written agreements with other law enforcement agencies (including federal agencies) for the provision of personnel, resources, or equipment to address natural or manmade disasters or emergencies and other major law enforcement problems, including the threat of a civil disturbance. The Act expressly requires the written instrument setting forth the mutual aid agreement to:

specify the nature of the law enforcement assistance to be rendered, the agency or entity that shall bear any liability arising from acts undertaken under the agreement, the procedures for requesting and authorizing assistance, the agency or entity that has command and supervisory responsibility, a time limit for the agreement, the amount of any compensation or reimbursement to the assisting agency or entity, and any other terms and conditions necessary to give it effect.

§ 23.1225(1)(b), Fla. Stat.

The Mutual Aid Act also provides for immunity to law enforcement officers, law enforcement agencies, and political subdivisions that lend assistance pursuant to a mutual aid agreement. Indeed, many of the mutual aid agreements with the MPD contained language providing that each party assumes responsibility “for the acts, omissions or conduct of such party’s own employees while engaged in rendering aid.”1 Another common theme in the various mutual aid agreements included a conflict provision stating that each officer was required to act in accordance with his/her department’s orders, rules, and procedures, and where such matters conflict with a direct order from an MPD superior officer, such officer is to comply with the operational orders and rules of his/her own agency. The Subcommittee held numerous meetings, reviewed and discussed multiple volumes of police After Action Reports prepared by the MPD and other assisting law enforcement agencies, communicated with the Miami-Dade Police Department and the City of Hialeah Police Department, sought input from the AFL-CIO and other organized groups that participated in the FTAA protests, and, most importantly, assembled and scrutinized the scope and limitations on the mutual aid agreements entered into by the MPD and its assisting law enforcement agencies. In addition, the

1 See mutual aid agreements with City of Aventura, Collier County, Coral Gables, Ft.

Lauderdale, and City of Miami Beach.

Subcommittee requested a meeting with representatives from the MPD, the Miami-Dade Police Department, and the City of Hialeah Police Department to discuss what lessons were learned, and to make recommendations for improving multi-agency event planning and implementation. This request was not granted by the agencies, however. Mr. Thomas Guilfoyle, Miami-Dade’s legal counsel, responded in writing to the Subcommittee. Mr. Guilfoyle maintained that the Miami-Dade Police Department did not enter into a mutual aid agreement with the MPD because, in his view, such an agreement was not necessary since the Miami-Dade Police Department has county-wide jurisdiction that includes the municipal boundaries of the City of Miami. Moreover, Louis Battle, a Major with the Miami-Dade Police Department, has testified that the Miami-Dade Police Department prepared its own operational plan and training program for its officers for the FTAA, exercised command and control over its officers, and responded to requests for assistance from the MPD. In a telephone conference with the Subcommittee Chairperson, Captain Mark Overton of the Hialeah Police Department recommended that for future multi-agency law enforcement undertakings, the MPD should implement an Incident Command System that would more effectively control personnel, resources, and communications. An Incident Command System is an on-scene management concept whereby an integrated organizational command structure is set in place to facilitate a quick response by personnel from various law enforcement agencies to emerging events. The Joint Law Enforcement Command Center (JLOC) was established by the MPD and its assisting agencies in an attempt to operate under an Incident Command System. The JLOC, housed at the MPD headquarters, consisted of a command team and decision-making representatives from the assisting agencies. Additionally, the Subcommittee requested from the MPD any and all written agreements (aside from mutual aid agreements) and the substance of any oral agreements the MPD had entered into with other law enforcement agencies with respect to providing security during the FTAA. In response, the Subcommittee eventually received copies of letters the MPD had sent to other agencies. The letters revealed that the MPD requested general and specific resources from assisting agencies. Listed among the requests were Field Force, Marine, Aviation, Mounted Patrol, SWAT and Intelligence officers, Chemical-Biological Response Teams, vehicles, and drivers, as well as helicopters and pilots. Training assistance was requested and received from the Department of Homeland Security. A letter from the MPD to the Department of Homeland Security dated September 2, 2003, stated that “up to 100,000 demonstrators are anticipated.” In another letter dated November 13, 2003, and addressed to the Office of Domestic Preparedness/Department of Homeland Security, the MPD indicated that the “FTAA event is expected to draw large demonstrators and protesters, similar to those seen with the World Bank and World Trade Organization (WTO) meetings in Washington, D.C., and Seattle, Washington.” In this letter, the MPD requested the temporary transfer of a Prepositioned Equipment Program (PED) Pod from St. Petersburg, Florida to Miami-Dade County in order “to enhance the capacity of state and local law enforcement jurisdictions to respond to acts of domestic terror.” (This equipment is specifically tailored by the Federal Government to sustain and reconstitute the capabilities of local and state first responders to react to a terrorist attack or other major emergency).

FINDINGS & RECOMMENDATIONS

After receiving the numerous mutual aid agreements between the City of Miami and assisting agencies, this Subcommittee concurs that these agreements are in accordance with the state statutory requirements. However, in the absence of the FTAA Operational Plan and any information or documentation detailing other legal or collateral agreements that may exist, the Subcommittee finds the mutual aid agreements to be of no value in aiding a determination as to what information or instruction was disseminated to the assisting agencies. This Subcommittee can therefore only make recommendations as to what should be included in mutual aid agreements or operational plans for joint agency endeavors within the City of Miami. 1. Command Structure:

a. Consistent with a unified Incident Command System, all involved agencies and jurisdictions should be coordinated in their planning and operations, acting under and committed to a common set of priorities, objectives and strategies.

b. In multi-agency events there should be a clear command structure for all

participating law enforcement agencies to follow, providing specificity as to the extent and nature of each agency’s authority and control for accomplishing designated tasks and operations. For an operation such as the FTAA demonstrations with its multi-agency involvement, the need arises for a superior commander position to be established. With Miami as the planning, requesting, and host agency with primary jurisdiction, that position should rest with its police chief. Support relationships and internal command structures for the individual agencies would remain intact, operating under, complementing and sustaining the approved Operational Plan as agreed upon by each agency in the pre-event planning stage.

c. The command structure must be in writing, transparent, and articulated in advance

to all involved parties. 2. (A) Inter-Agency Communications: In multi-agency events, the communications aspect of any such action is paramount to the success of the policing endeavors. The MPD After Action Report, Section VII Communications, observes that a major flaw in the 1999 World Trade Organization protests was a breakdown in communications between the participating agencies, stemming from different radio communications systems and radio frequencies. The MPD reported that in an effort to avoid such an occurrence, confidential radio codes were exchanged, officers were taught new formations and a new language, systems were integrated to “talk” to one another, and several contingency plans were developed to address foreseeable problems. The MPD’s recommendation that “dispatchers be taught this new terminology prior to similar future events” lends some credence to reports of oversights and failures in communication and communication systems in spite of the planning. A major incident indicating a failure of JLOC occurred on November 18, 2003, when a Miami-Dade Police Department aircraft created a safety hazard by attempting an unauthorized flight into the

FTAA security zone. The MDPD aircraft reportedly flew directly above the protestors and ignored repeated requests by the FTAA Air Operations Center to depart the airspace. Another failure of JLOC is suggested by the arrests of individuals who dispersed as ordered by advancing police officers but were subsequently arrested by another agency for failure to disperse. For example, Mr. Jeremy Glazer, a Miami-Dade high school teacher, testified before the CIP that he attended the AFL-CIO rally at the Bayfront Park Amphitheater on Thursday, November 20th. Toward the end of the speeches, Mr. Glazer became aware of a disturbance taking place on Biscayne Boulevard. He saw a small box burning on Biscayne Boulevard, and the area was being cleared of people by the police. Mr. Glazer and others were initially prevented from leaving. Thirty to 45 minutes later, Mr. Glazer and others were allowed to leave the park. He and a group of 12to15 people were directed by MPD officers to proceed to the west side of Biscayne Boulevard and then walk north. They proceeded to Northeast 3rd Street, went west to Second Avenue, and proceeded north. At Northeast 6th Street, they were directed by Miami-Dade police officers to continue to proceed west along a railroad track. Mr. Glazer and the crowd obeyed, but as they were going in the direction in which they were ordered, they were stopped and ordered to return in the opposite direction by Broward Sheriff’s officers. Reversing their direction as ordered, the group returned to the area of the Miami-Dade officers, who refused to let them pass. They were ordered by the Miami-Dade officers to go back in the opposite direction, even though some members of the group explained their encounter with the Broward Sheriff’s officers. At this point, according to Mr. Glazer, Broward Sheriff’s officers were advancing upon them. Mr. Glazer witnessed several people in the group being arrested and handcuffed with plastic restraints. Mr. Glazer’s experience is not dissimilar from the allegations set forth in various lawsuits filed by citizens complaining that they were subjected to excessive force and illegal arrests after complying with an MPD dispersal order. See, e.g., Bentley Killmon, et al., v. City of Miami, etc., et al., Case No. 04-Civ-20707- Altonaga (So. Dist. Fla.); and Lorne Battiste, et al. v. Broward Sheriff’s Kenneth C. Jenne, etc., et al.

RECOMMENDATIONS The following measures are therefore recommended by the Subcommittee:

a. That the MPD continue to employ a joint system of intercommunications between and amongst visiting jurisdictions and, where necessary, correct any deficiencies to ensure an accurate and current flow of information.

b. The mutual aid agreements should clearly designate a communication system for

command transmissions, and all visiting jurisdictions must be familiar with the command mechanism, i.e., Incident Command System (ICS) which is used by FEMA.

c. Employ a joint information system to facilitate the format and delivery of unified

messages to the public, demonstrators, by-standers and the media. 2. (B) Communication of Agreements and Policies to Visiting Agencies:

a. In events such as the FTAA where months of planning were involved, the home

jurisdiction as a matter of course should plan, coordinate or negotiate conditions for events with community leaders and civic or labor organizations.

b. These agreements must be communicated to all the visiting agencies.

Communicating these agreements limits misunderstandings and assures the public of the right to freedom of expression while engaging in lawful activities, so that persons wishing to attend permitted peaceful events are provided protection to do so.

2. (C) Communication of Dispersal Orders to Protestors:

a. The CIP heard testimony from eyewitnesses that orders to disperse were not heard, and/or that insufficient time was provided for dispersal. The MPD must establish written, clear, and uniform procedures for communicating with protestors and ensure that transmission of the procedures and any orders given are clearly articulated and received by the public in all applicable languages.

b. MPD should explore the use of high tech equipment capable of delivering an

amplified message to an area wide enough to reach the target audience. 3. Rules of Engagement and Equipment The MPD After Action Report described the Rules of Engagement as “strict, self-imposed guidelines on when all use of force was appropriate.”2 The Rules were reportedly presented to all participating agencies. The MPD After Action Report further indicated, “[The] Miami Police Department and our partners were repeatedly instructed that they were not to respond to verbal provocation…force was to be used only in response to force and at the direction of a ranking supervisor.”3 It appears, therefore, that the Rules of Engagement were expected to define and delineate rules and standards to which all agencies would adhere. To address the allegations of unnecessary and/or improper use of less lethal weapons, tear gas, tanks, and intimidating full body armor, one must look first to the efficacy of the Rules of Engagement and whether they clearly defined and delineated the parameters. To be successful, the following should be clearly identified and explained:

a. The standard or level of force to be used. Visiting agencies are expected to adopt for the course of the event a standard consistent with that of the City of Miami.

b. When to use weapons / less lethal weapons and which weapons or less lethal

weapons may be used within City of Miami limits. c. Uniform requirements: It is essential, especially in incidents where use of force is

2 City of Miami Police Department FTAA 2003 After Action Report, Volume 1. pp 9-10. 3 Id. at pp 10-11

likely and involving personnel from more than one agency, that all officers maintain clearly identifiable markings on their uniforms and equipment. Use of riot gear/full body armors should be incident specific and consistent with predetermined limitations and guidelines for use.

d. The MPD should inform assisting agencies what gear/uniforms are appropriate for

use during the event. e. The MPD shall clearly delineate its policies on arrest procedures and prisoner

processing and establish a standard of treatment for arrestees in order to assure them of due process protections.

f. The MPD should coordinate rules for intake of arrestees with Miami-Dade County.

4. Training At the public hearings and CIP meetings, the MPD stated that MPD officers were trained in the use of force continuum, outlining when to use force, the appropriate level of force, appropriate weaponry, and related matters.

a. Training curriculum should be coordinated with all assisting agencies with

standard training and materials provided to all trainees from the various agencies. b. Where the event occurs within the boundaries and jurisdiction of the City of Miami,

the MPD Rules of Engagement or use of force continuum should continue to be the standard employed by all assisting agencies.

5. Dispute Resolutions A committee or arbitration system should be established and in place post-event to resolve disputes not addressed or capable of being addressed during the event. These issues may involve violations of established and agreed upon operating procedures, misconduct allegations, and costs and liability issues.

COMPLAINTS SUBCOMMITTEE The Complaints Subcommittee was headed by CIP Vice-chairperson Janet McAliley and consisted of Panel Members Thomas Rebull, Otis Davis, and Tanya Brinkley. The Subcommittee investigated and reached findings and recommendations on the complaints filed with the CIP arising out of the FTAA protests to determine not only the merits of each complaint, but also to ascertain whether the complaints were indicative of any underlying policy issues requiring ameliorative changes in the MPD protocols and practices with respect to the MPD. Each complaint was assigned to a CIP private investigator for investigation and recommendations to the CIP’s investigative staff. Where possible, complainants appeared before the Subcommittee. In turn, the Subcommittee reached findings and made recommendations to the full Panel. Each complaint has been adjudicated as “No Finding” and closed by the Panel. An adjudication of “No Finding” is required under the CIP Ordinance in cases where “the complainant failed to produce information to further the investigation, another agency is responsible, the complainant withdrew the complaint, the complainant is unavailable to clarify the complaint, the officer is no longer employed by the Miami Police Department, or the Panel did not reach a conclusion.” See City of Miami Ordinance No. 12188. The complaints investigated and findings are set forth below. Additionally, CIP staff reviewed all civil litigation surrounding the FTAA (Appendix 2). It should be noted that only one complainant, Celeste Fraser Delgado, filed a complaint with the CIP. Ms. Delgado, did not, however, make herself available to the CIP investigator or to the CIP. COMPLAINTS INVESTIGATED Case: AFL-CIO CIP 03-025 Allegations: Abusive Treatment, Improper Procedure, and Violation of Constitutional Rights. Mr. Richard Trumka, an AFL-CIO official, filed a complaint of behalf of the AFL-CIO alleging that the MPD broke a number of agreements made between the AFL-CIO and the MPD regarding a parade and rally by the AFL-CIO that was set for Thursday November 20, 2003. He claimed that there were numerous instances of obstruction, intimidation, harassment and violence at the hands of the MPD, specifically: buses carrying AFL-CIO members were prevented access to the Bayfront Park Amphitheater by the MPD; the MPD denied access to media, despite an agreement that was made on November 18; access was denied to the entire march route; mismanagement by the MPD led to communications and control breakdowns; the MPD promised that all officers on the street would have clearly identifiable uniforms and would not be dressed in riot gear; unprovoked and excessive force was used against demonstrators in the amphitheater. In addition, during an interview with a CIP investigator, Mr. Trumka stated that his hotel room was broken into and someone went through his briefcase, laptop, and cell phone, and that he was frisked before entering Bayside Marketplace. Findings: The case was closed as No Finding for Abusive Treatment, No Finding for Improper Procedure, and No Finding for Violation of Constitutional Rights. Mr. Trumka acknowledged to a CIP investigator that the AFL-CIO’s demonstration and march were held. He feels, however, that most of the parade participants were turned away and the march was truncated. Mr. Trumka could not identify any of the officers or departments involved in the frisking incident. There is no

indication that a police officer was involved in the hotel room incident, and Mr. Trumka stated that he never reported the incident to the police. Mr. Trumka stated that his main complaint is directed towards the MPD because, in his view, the MPD was in charge of the overall organization of the event. Case: Michael Borucke CIP 04-017 Allegations: Abusive Treatment. Mr. Borucke stated that on November 20, 2003, police fired tear gas, paintballs, bean bags, and rubber bullets into the crowd on Biscayne Boulevard across from the Bayfront Park Amphitheater. Findings: The case was closed as No Finding. A CIP investigator contacted Mr. Borucke, who stated that he believed that the officers who fired at and struck him were from the Broward Sheriff’s Office. No evidence showed that any MPD officers were involved in the incident. Case: Barbara Buck CIP 03-008 Allegations: Abusive Treatment. Ms. Buck stated that while she was attending a rally on November 20, 2003, she witnessed police using tear gas and arresting people for no reason. Findings: The case was closed as No Finding. A CIP investigator contacted Ms. Buck, who stated that she was unable to identify which police departments or officers were involved. Photographs provided by Ms. Buck clearly showed that the involved officers were not employed by the MPD; they did not have any MPD insignias, markings or patches that were worn by those officers identified as MPD officers. CIP staff was unable to identify which agencies were involved. Case: Bruce Clapp CIP 03-005 Allegation: Discourtesy. Mr. Clapp stated that while he was at the Overtown Metrorail station during the FTAA protests (no date, time or exact location provided), he was intimidated by police officers dressed in riot gear and that they cursed at him. Findings: The case was closed as No Finding. Mr. Clapp could not identify the police department or the officers involved. Based on the location of the incident, the incident did not involve any MPD officers. A CIP investigator was unable to locate Mr. Clapp after traveling to his residence and was unable to contact Mr. Clapp via the telephone. Case: Matthew Cleinman CIP 04-016 Allegations: Abusive Treatment. Mr. Cleinman stated that on November 20, 2003, he witnessed police officers discharging less lethal weapons into a crowd and falsely arresting people. Findings: The case was closed as No Finding. A CIP investigator contacted Mr. Cleinman, who stated that he did not have a very good recollection of the details of the incidents and did not know which police departments were involved. He complained to the CIP because he believed that the MPD was in charge of the various police departments. Case: Noel Cleland CIP 03-009 Allegations: Abusive Treatment. Mr. Cleland stated that his daughter, Sarah, was shot in the back of the leg with a rubber bullet while attending the FTAA protests on November 20, 2003, on Biscayne Boulevard. Findings: The case was closed as No Finding. Mr. Cleland was unable to identify the officers involved. While Sara Cleland’s leg was injured by what appears to be a “rubber bullet,” it is unclear what officer or what police agency discharged the round. During a CIP Complaints Subcommittee meeting on November 9, 2005, Mr. Cleland stated that his complaint is not with the officer who was

doing the shooting, but with the chain of command that gave the order to shoot at a peaceful crowd. He stated that this was a coordinated effort, and his complaint is with the person who gave the order. Case: Ryan Conrad CIP 03-101 Allegations: Abusive Treatment and False Arrest. Mr. Conrad stated that he was beaten over the head with a baton while video taping at the FTAA protests on November 20, 2003. Mr. Conrad stated that a second officer attempted to smash his camera with a baton and that he was arrested for no reason while walking home from the protest. Findings: The case was closed as No Finding for Abusive Treatment and No Finding for False Arrest. A review of the arrest report revealed that Mr. Conrad was arrested by Officer Hill with the Miami-Dade Police Department. The CIP forwarded Mr. Conrad’s complaint to the Miami-Dade County Independent Review Panel and the Miami-Dade Police Department’s Professional Compliance Bureau. Additionally, a CIP investigator contacted Mr. Conrad, who stated that he would not provide an interview until he spoke to his attorney. Mr. Conrad has not contacted the CIP investigator or the Miami-Dade Police Department’s Professional Compliance Bureau. Case: Al Crespo CIP 03-007 Allegations: Abusive Treatment, Improper Procedure, and Violation of Freedom of Speech and Assembly. Mr. Crespo provided the CIP with a journal chronicling his observations during the FTAA protests from November 16, 2003 through November 21, 2003. Findings: The case was closed as No Finding for Abusive Treatment, No Finding for Improper Procedure, and No Finding for Violation of Freedom of Speech and Assembly. Mr. Crespo’s complaints were of a general nature in that he did not make any specific complaints involving the MPD. (He did not indicate that he was a victim in any of the allegations) Mr. Crespo appeared before the CIP on January 17, 2006, to provide testimony and recommendations. Case: John Matthew Davis CIP 04-094 Allegations: Excessive Force. Mr. Davis stated that on November 20, 2003, police unleashed a barrage of less lethal weapons into a crowd without warning or any audible order to disperse. Mr. Davis stated that he witnessed numerous people get shot with less lethal rounds, and that he was also shot. Findings: The case was closed as No Finding. A CIP investigator and the CIP’s Independent Counsel spoke to Mr. Davis in separate conversations. Mr. Davis could not identify the law enforcement agency involved. The CIP’s Chief Investigator reviewed photographs and a video on Mr. Davis’ website. The photographs show unknown police officers from other law enforcement agencies, but none from the MPD (based upon lack of identifying insignias worn by MPD personnel). Case: Celeste F. Delgado CIP 04-019 Allegations: Abusive Treatment and False Arrest. Ms. Delgado stated that during the protests on November 20 and November 21, 2003, she was prohibited from walking south from Northeast 12th Street and that on Northeast 1st Street police officers told her to turn around. She also claims that she was struck in the shoulder with a police shield and was arrested without cause. Findings: The case was closed as No Finding for Abusive Treatment and No Finding for False Arrest. The CIP’s Independent Counsel spoke with Ms. Delgado, who stated that the officers involved were not employed by the MPD, but were Miami-Dade police officers. She has filed a

lawsuit against Miami-Dade County and its police officers for violating her First, Fourth, and Fourteenth Amendment Rights. Case: Jamie Loughner CIP 03-003 Allegations: Abusive Treatment and False Arrest. Ms. Loughner claims that on November 20, 2003, she was illegally detained and arrested, denied medical treatment by a medic of her own choosing, threatened, deprived of her constitutional rights to protest, and that law enforcement officers stole a sign or placard she was carrying. Findings: The case was closed as No Finding for Abusive Treatment and No Finding for False Arrest. Ms. Loughner has been unavailable to the CIP. Numerous attempts were made to contact her via e-mail, telephone, and regular mail. Case: Keith McCormish CIP 03-006 Allegations: Abusive Treatment. During the FTAA protests on November 20, 2003, Mr. McCormish claimed that police officers discharged non-lethal weapons into parade participants on November 20, 2003, and that one of the projectiles struck him on his ankle. Findings: The case was closed as No Finding. A CIP investigator contacted Mr. McCormish, who was unable to provide any additional information. Mr. McCormish stated that he had photos of the encounter with law enforcement but has not provided them to the CIP investigator or the CIP despite requests to do so. Case: Miami Chapter of Amnesty International USA CIP 04-020 Allegations: Violation of Freedom of Speech and Assembly. Amnesty International alleged that police deployment unnecessarily interfered with and substantially impaired its permitted demonstration at the Torch of Friendship, including access to the public and the press. Findings: The case was closed as No Finding. The actions complained of were not committed by Miami police officers. The Miami Chapter of Amnesty International USA obtained City of Miami Police Department Special Events Permit No. 00626 to stage a demonstration on November 20, 2003, from 10:00 a.m. to 2:00 p.m. at the Torch of Friendship during the FTAA Summit. The Torch of Friendship, located within Bayfront Park between Northeast 3rd and 4th Streets and facing Biscayne Boulevard, is approximately one-half mile north of the Intercontinental Hotel, the FTAA meeting site. Steve Wetstein and other Amnesty International members assembled at the Torch of Friendship on the morning of November 20, 2003, to set up sound equipment and literature tables in preparation for their demonstration. According to Mr. Wetstein, several Hialeah police officers came to the demonstration and told Amnesty International that it had to move from the central to the southern part of the Torch of Friendship because “50 anarchists” were coming toward the Torch of Friendship. Mr. Wetstein protested to Captain Mark Overton, the Hialeah officer in charge, that his group had a permit to assemble, but Captain Overton nonetheless insisted that the assemblage move. Amnesty International complied. The CIP’s Independent Counsel talked with Captain Overton about this complaint. Captain Overton advised that on the night of November 19th, law enforcement had received intelligence that violent protestors intended to attack the police security fence encircling the Intercontinental Hotel on November 20. In response to this information, several contingency plans were developed which included how and where police skirmish lines would be deployed. Captain Overton emphatically rejects any notion of a plan by police to obstruct or otherwise frustrate any permitted demonstration. The next morning, November 20th, Captain Overton positioned his officers at the