Report: Maryland State Police surveillance was unjustified

Daily Record, The (Baltimore), Oct 2, 2008 by Steve Lash

An overzealous Maryland State Police force, apparently oblivious to the constitutional rights of peaceful protestors, conducted improper undercover surveillance of anti-war and death penalty opposition groups in 2005 and 2006 without any reasonable suspicion they were involved in any past, present or future criminal activity, former Maryland Attorney General Stephen H. Sachs concluded in a report released Wednesday.

The report, conducted at the request of Gov. Martin O'Malley, assailed an "end justifies the means" mindset of state police investigators who conducted the covert surveillance over a 14-month period.

O'Malley, appearing at a news conference with Sachs, hailed the report for shedding light on "a chapter in our state about which none of us is proud." The governor, who was not chief executive when the reported surveillance occurred, said his administration is "committed to learning the lessons" of the improper police activities.

The undercover operation was revealed in documents released by state police after they were sued by the American Civil Liberties Union of Maryland. The documents show undercover officers infiltrated meetings of peace and anti-capital punishment groups, and spent nearly 300 hours on surveillance.

David Rocah, staff attorney for ACLU of Maryland, praised the report as "thorough and unstinting in its conclusions and scathing in its criticisms." The study "depicts a police agency that thoroughly lost its moorings," he added.

But Rocah said the report is incomplete because the ACLU suspects that even more groups might have been subjected to police surveillance than those acknowledged in the documents the police released. The ACLU of Maryland on Tuesday filed public information requests for more documents pertaining to police surveillance.

"The full extent of what they were doing has not been disclosed," Rocah said.

'Better to be safe than sorry'

In his report, Sachs made several recommendations, principally that police conduct undercover surveillance only when the Maryland State Police superintendent has issued a written finding that he or she has reasonable and articulable suspicion of present or planned criminal activity, and that the undercover operation is the least intrusive way to investigate effectively.

Exceptions to this rule of suspicion "should be exceedingly rare and made only if the superintendent finds that exigent circumstances, such as the reasonable possibility of an imminent threat to public safety, justified the intrusion," the report stated.

Such prerequisites to undercover surveillance could prevent abuses of protestors' First Amendment rights, as occurred during the 14 months, Sachs said.

"The overreaching by the Maryland State police ... its apparent obliviousness to the consequences of its covert operation on the free exercise of expression and association by law-abiding citizens - - should not have occurred," the report stated.

Sachs, in the 93-page report, stated that he "found no evidence that anyone in the MSP chain of command ... gave any thought whatever to the possibility that its covert surveillance of these groups, though not intended to suppress their rights of expression and association, was in any way inappropriate."

The many officers interviewed for the report maintained that it is "better to be safe than sorry" when balancing public safety against the rights of protestors, a justification Sachs said has no merit with regard to peaceful groups seeking change.

In addition to the unwarranted surveillance, Sachs criticized MSP for transmitting information about the lawful groups to a database maintained by the Washington-Baltimore High Intensity Drug Trafficking Area program, even though federal regulations permit such transmissions "only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to the criminal conduct or activity."

MSP also "showed a lack of judgment" in labeling the groups' activities as "terrorism" in the state police force's own Case Explorer intelligence database, a designation clearly at odds with the groups' "peaceful activism," Sachs wrote.

Recommendations

To restore the rights of those improperly investigated, MSP should contact all individuals described in the Case Explorer database as suspected of being involved in terrorism -- but whom the police have no evidence of having been involved in violent crime, the report recommended. MSP should also give these people the chance to review the entries before they are purged by the state police, the report stated.

In addition, MSP "should revise, and possibly discontinue" use of Case Explorer, which "encourages the overinclusion of individuals and groups in the database," the report added.

In the report, Sachs also recommended that MSP establish standards for collecting and disseminating criminal intelligence information and require that information inappropriately compiled be promptly purged.

State Police Superintendent Terrence B. Sheridan, who was not the state's top police officer when the reported surveillance occurred, called Sachs' report "a learning experience for us" and said the police force would implement the recommendations, including the purging of names.