Draft DGO8.10 "First Amendment Activities"

8.10.01 PURPOSE

This order establishes San Francisco Police Department (Department) policy regarding the exercise of rights protected by the First Amendment of the United States Constitution and corresponding protections under the California Constitution. The San Francisco Charter directs the Department to “preserve the public peace, prevent and detect crime, and protect the rights of persons and property” through enforcement of law.

The First Amendment applies to a broad range of activities and circumstances. This order cannot address every situation in which First Amendment rights and police action intersect. It therefore provides the following general principle:

Department involvement in protected First Amendment activity must serve a legitimate law-enforcement or public-safety need.

8.10.02 DEFINITIONS

1. Initial Investigation – Investigative activity conducted as part of routine patrol functions, typically in response to a call for service or activity observed by a member. It includes the initial response, gathering information, and preparing the initial incident report. An initial investigation generally concludes when the member completes the incident report. Receiving and documenting additional information as part of routine patrol functions in a supplemental report would still be a part of the initial investigation.
2. Follow-Up Investigation – Investigative activity conducted by members of an investigative or other non-patrol unit after the initial investigation. For purposes of this order, an investigation initiated by such a unit without a prior initial investigation by patrol is also considered a follow-up investigation.
3. Legitimate Law-Enforcement or Public-Safety Needs – These include the need to preserve the peace, protect persons and property, provide police and emergency services, investigate crime, and enforce the law. They also include planning and managing public-safety operations, facilitating lawful activity, and supporting Department accountability, training, and after-action review.

8.10.03 POLICY

1. Department Responsibility – Department shall facilitate in a neutral manner, public safety during planned or unplanned First Amendment Activities in the City and County of San Francisco.
2. Unlawful Conduct – First Amendment protections do not extend to criminal acts, even when committed in connection with protected activity.
3. Individual Conduct – Unlawful conduct by one or more persons does not, by itself, make the protected conduct of others unlawful.

8.10.04 SPEECH AND EXPRESSION

The First Amendment protects a broad range of expressions, including spoken and written words, signs, symbols, artistic expression, advocacy, criticism of government, political expression, and other expressive conduct.

1. Hate Speech and Hate Incidents – Expression is not unlawful solely because it is hateful, offensive, derogatory, or motivated by bias. When speech or expressive conduct constitute a hate crime or non-criminal hate incident, members shall follow the procedures outlined in DGO 6.13, Hate Crimes.
2. Recording and Observation of Police – The public may record, photograph, observe, and criticize members performing official duties as part of their protected First Amendment activity. See DGO 5.07, Rights of Onlookers.

8.10.05 PUBLIC ASSEMBLIES AND DEMONSTRATIONS

The First Amendment protects the right of people to gather for demonstrations, marches, rallies, protests, vigils, picketing, public meetings, and other peaceable assemblies. Department operations shall facilitate lawful assembly while preserving the peace, protecting persons and property, and addressing public-safety needs. DGO 8.05, Labor Disputes, covers specific procedures and policies relating only to labor disputes.

Collecting and using information to plan and facilitate a First Amendment event does not constitute a First Amendment-focused investigation as outlined in section 8.10.07 below.

1. Facilitation of Lawful Assembly – Department actions, when needed, should be directed toward addressing legitimate law-enforcement or public-safety needs while avoiding unnecessary interference with lawful participation.

   Police response should be based on the circumstances of the event, including its size, location, conduct, and identifiable public-safety needs.

2. Planned and Spontaneous Assemblies – First Amendment protections apply to both planned and spontaneous assemblies.
   1. The absence of advance notice or Department planning does not, by itself, make an assembly unlawful.
   2. The absence of a permit does not, by itself, make an assembly unlawful.
   3. The Department response to an assembly shall be proportionate to the circumstances and should be adjusted as conditions change. 
3. Event-Planning Information – Members may obtain information necessary to plan for an assembly, allocate resources, facilitate lawful activity, manage traffic or access, protect persons or property, or address legitimate law-enforcement and public-safety needs.
   1. The Department may gather and consider information found in the public domain.
   2. The Department may gather and consider information found on social media in compliance with the respective Bureau Order 23-03, Investigative Social Media Accounts.
4. Communication and Coordination – Communication with organizers, participants, and other stakeholders should be used to facilitate lawful activity and address public-safety concerns.
   1. Cooperation by organizers or participants with the Department is voluntary. 
5. Restrictions on Assemblies – Members shall not restrict a lawful assembly unless articulable facts or circumstances establish a legitimate public-safety or law-enforcement need for the restriction.
6. Opposing Groups and Counter-Protests – Persons or groups expressing opposing viewpoints are entitled to First Amendment protections.
   1. The Department will remain neutral at all times.
   2. When necessary for safety, members may establish lawful separation, access, traffic, or other measures that allow opposing groups to continue their lawful activity.
   3. The anticipated or actual hostile reaction of one group shall not, by itself, provide a basis for restricting the lawful activity of another group.
7. Voluntary Compliance – When circumstances permit, members should provide reasonable opportunities for individuals to comply with orders or directions before escalating enforcement.
8. Individual Unlawful Conduct – The unlawful conduct of one or more persons does not, by itself, make an otherwise lawful assembly unlawful.
   1. Members should identify and address the individual(s) engaged in unlawful conduct while allowing lawful activity by other participants to continue.
   2. The presence of individual(s) suspected of criminal activity within a larger assembly does not diminish the First Amendment rights of participants who remain engaged in lawful activity.
9. Recording at Assemblies – The Department may use surveillance tools in accordance with SF Admin Code 19B, or other state, local or department governing statutes. Generally recording is only permissible during exigent circumstances or for placement of police personnel due to crowd sizes or other issues creating imminent public safety hazards during First Amendment Activities.
   1. Unmanned Aircraft Systems (UASs) shall be used in accordance with DGO 10.12, Unmanned Aircraft Systems (UAS) Operations.
   2. Body-Worn Cameras (BWCs) shall be used in accordance with DGO 10.11, Body Worn Cameras.
10. Transition to Crowd Control – When circumstances require a crowd-control response, procedures shall be governed by DGO 8.03, Crowd Control.

8.10.06 FREEDOM OF ASSOCIATION

The First Amendment protects the right of people to associate with others for political, religious, social, civic, labor, advocacy, and other protected purposes. Members shall base Department action on legitimate law-enforcement or public-safety needs rather than a person’s associations or affiliations.

1. Individual Conduct – Members shall distinguish a person’s individual conduct from the conduct of other members of a group or organization. Unlawful conduct by one person does not, by itself, provide a basis for police action against others who are associated with that person.

8.10.07 FIRST AMENDMENT-FOCUSED INVESTIGATIONS AND SPECIAL INVESTIGATIONS DIVISION RESPONSIBILITIES

1. Routine Patrol Functions and The Initial Investigation
   1. Members performing routine patrol functions may respond to, investigate, and document incidents involving protected First Amendment activity. These functions include
   2. Interviewing involved persons, making lawful contacts or detentions, collecting evidence, reviewing relevant publicly available information, and completing reports.
   3. Initial investigations do not require the Special Investigations Division’s (SID) approval.
2. First Amendment-Focused Investigations
   1. A First Amendment-Focused Investigation is a follow-up investigation, coordinated through SID, that: 
      1. Is prompted by protected First Amendment activity;
      2. Is undertaken to assess a public-safety or serious law-enforcement concern arising from the nature or content of that activity; and
      3. Is not part of a criminal investigation.
3. Authorization Requirements
   1. A member who believes a follow-up investigation will develop into a First Amendment-focused investigation shall consult with SID before conducting additional investigative activity directed at the protected activity.
   2. If, after consultation with SID, it is determined that a First Amendment-focused investigation is required, the member shall obtain written authorization before initiating or continuing the investigation.
   3. The member shall submit the written authorization request memorandum through the Commanding Officer of SID, the Deputy Chief of the Investigations Bureau, for final approval by the Chief of Police.
   4. The authorization request memorandum shall identify the concern prompting the investigation and the facts supporting that concern.
   5. Authorization shall remain in effect for no more than 120 calendar days. Continuing the investigation beyond 120 days requires renewed authorization.
   6. When immediate action is required before written authorization can reasonably be obtained, the investigation may begin with verbal authorization from the Commanding Officer of SID or designee. Written authorization shall be completed within five (5) business days.
4. SID as Lead Division - SID shall serve as the Department’s lead division for First Amendment-focused investigations and the primary point of consultation concerning application of this section.
5. Training
   1. Members assigned to SID shall receive training on this order as soon as practical after assignment. In all cases, SID members shall have completed the training before being assigned to a First Amendment-focused investigation.
   2. Training shall address all requirements of this order and their practical application.

8.10.08 POLICE OVERSIGHT

1. Police Commission Review – When a First Amendment-focused investigation is authorized, the Police Commission President or designee responsible for monitoring compliance shall be notified by the Chief of Police within 30 days of the authorization.
2. Violations of this Order – If the Chief of Police or any member of the Department becomes aware of information that a possible violation of these guidelines has occurred, the Chief shall immediately inform the Police Commission through the Police Commission President. The member shall immediately inform their Commanding Officer who shall inform the Chief.
3. Sharing of First Amendment-Focused Investigations
   1. Information sharing is limited to criminal justice agencies with a specific need to know and authorization to receive the information, except when disclosure is required by law, Department policy, or an applicable agreement.
   2. A master list of all written transmittals and Agency Assist Forms recording the dissemination of records governed by these guidelines to outside agencies shall be maintained by SID.
4. File Security
   1. A copy of the memoranda used to request authorization to conduct a First Amendment-focused investigation shall be kept by the Commanding Officer of SID.
   2. All follow-up investigation documents created pursuant to these guidelines shall be locked and kept separate from other Department files. Access shall be limited to personnel working on an authorized investigation, Command personnel, the Chief, the designated Commission member, and the Department of Police Accountability (DPA) for the limited purpose of conducting the annual audit.
   3. All files, whether kept by SID or another unit, shall be prominently marked with a notice that the material contained in the file is subject to these guidelines.