NCJ Number
53500
Journal
University of Detroit Journal of Urban Law Volume: 55 Issue: 4 Dated: (SUMMER 1978) Pages: 877-930
Date Published
1978
Length
53 pages
Annotation
THE TRADITIONAL JUSTIFICATIONS FOR POLICE SURVEILLANCE OF POLITICAL ORGANIZATIONS ARE EXAMINED AND CHALLENGED.
Abstract
A SERIOUS LEGAL DILEMMA INVOLVING THE FIRST AMENDMENT RIGHTS OF FREEDOM OF ASSEMBLY, FREEDOM OF SPEECH, AND FREEDOM OF PRIVACY IS POSED BY THE USE OF SECRET POLICE INTELLIGENCE APPARATUS SURVEILLANCE OF POLITICAL GROUPS. IN CONFRONTING CONSTITUTIONAL ATTACKS ON POLICE SURVEILLANCE OF POLITICAL ACTIVITY, THE COURTS INITIALLY MAKE A SIGNIFICANT VALUE CHOICE, BETWEEN FIRST AMENDMENT RIGHTS AND PUBLIC OR STATE SECURITY, AND THEN EMPLOY ALMOST AUTOMATICALLY A COMPLEX SERIES OF PRESUMPTIONS ABOUT POLICE AND CITIZEN BEHAVIOR. A 'TRIPARTITE AVOIDANCE GAMBIT' CONSISTING OF THE COURTS' QUESTIONING OF THE POLITICAL ASPECTS, THE STANDING, AND THE MOOTNESS OF A CASE ARE OFTEN USED TO AVOID FIRST AMENDMENT ISSUES. AN ANALYSIS OF LAIRD V TATUM (1972) IS SAID TO IGNORE THE FACTORS IN THE CASE WHICH WOULD ENCOURAGE JUDICIAL REVIEW OF THE ARMY'S INTELLIGENCE SYSTEMS, LIKEWISE THE STATE COURTS HAVE IGNORED THE FREEDOM OF SPEECH AND PRIVACY QUESTION FACING STATE OFFICIALS. THE COURTS HAVE NOT READILY ACCEPTED THE PLAINTIFFS' ARGUMENTS OF A SPECIFIC PRESENT OBJECTIVE HARM OR A THREAT OF SPECIFIC FUTURE HARM RESULTING FROM POLITICAL SURVEILLANCE ACTIVITIES. AN EMPIRICAL STUDY IS PRESENTED ON WHICH DETERMINATIONS OF HARM CAN BE BASED AND EVIDENCE OF INTELLIGENCE GATHERING BY WHICH THE COURTS WILL BE PROMPTED TO FAVOR THE RIGHTS OF THOSE UNDER SURVEILLANCE IN THEIR ANALYSIS OF POLICE SPY LITIGATION CAN BE SHOWN. IT IS INDICATED THAT POLICE DOCUMENTS MAY BE OBTAINED UNDER PROTECTIVE ORDERS IN ORDER TO DETERMINE THE TARGETS OF POLICE ACTIVITIES AND TO BEST INVESTIGATE THE FILING SYSTEM OF THE POLICE. EXAMPLES OF INFORMATION GATHERED FOR THE CASE OF BENKART V MICHIGAN STATE POLICE (1974) IS PRESENTED, INCLUDING PERSONAL EMPLOYMENT FILES OF SUSPECTS AND DOSSIERS. DISCUSSION ALSO CONCERNS THE SYSTEMS OF CROSS-REFERENCING SUBVERSIVE FILES AND PHOTOGRAPHS. APPENDED MATERIALS INCLUDE SAMPLES OF THE MASTER INDEX FILES USED BY THE DETROIT POLICE DEPARTMENT'S CRIMINAL INFORMATION BUREAU. (TWK)