The Feds Already Have State And Local Police Helping Them, Pt. 1

It’s going to get a lot worse for marginalized communities under Trump 2.0

(by Brian Hofer)

Every article you are reading at present on Trump’s mass deportation proposal provides a common fact - by themselves, the feds cannot do such a herculean act. That’s true, but misleading. They already have state and local law enforcement in the fold, as to our data.

I’m going to wager that a majority of you reading this have no idea what I’m talking about. This is a serious problem, in no small part because neither do your local elected representatives, nor their in house counsel. While this subject has always been a major concern, we’re about to see this area become front of mind under Trump 2.0 for many dangerous reasons. It’s a large unknown area ripe for discussion, so we’ll be breaking this up into multiple blog posts.

I’m talking about federal task forces like the Federal Bureau of Investigation’s Joint Terrorism Task Force and their interplay with state and local law enforcement, and by extension, fusion centers like San Francisco’s NCRIC (pronounced “nick rick”) - partnerships of federal, state, and local law enforcement agencies, and select private partners like utilities, transit agencies, and other important infrastructure.

Aside from the FBI itself, who is the second largest member of these JTTF task forces? ICE’s Homeland Security Investigation’s unit.

Ostensibly designed to eliminate data silos and deter terrorist threats, fusion centers have instead led to a double whammy of civil rights violations and pilfering of taxpayer dollars. When commenting on his seminal two-year investigation into fusion centers across the country in 2012, former U.S. Senator Tom Coburn (R-OK) stated that “we’ve not had one piece of actionable intelligence in nine years out of a fusion center, and we’ve probably spent in excess of $1.4 billion on it.”

It’s only gotten worse since then. Remember the DAPL oil pipeline protestors? How about the Hawley resolution targeting pro-ceasefire campus protestors, which encouraged the JTTF to subsequently visit groups like the Students for Justice in Palestine? Make no mistake, although H.R. 9495 will make it easier for Trump 2.0 to “lawfully” squash 1A protected activities, Biden is already doing so.

I have never met a single county or city attorney that has even a rudimentary understanding of this issue, and I fell out of my chair when I learned the California Department of Justice lawyers were equally as ignorant when we first approached them about our concerns over the different legal standards local law enforcement are subject to…except when they legally become federal officers after being cross-designated as a Task Force Officer (“TFO”).

Why might this be a problem?

In 2013, Charles Kleinert, an officer with the Austin police office, while working as a federal task force officer, shot and killed Larry Jackson, an unarmed 32-year-old black man. Jackson ‘s only offense was evading detention. Travis County prosecutors charged Kleinert with manslaughter. However, Kleinert was able to escape liability after he was determined to be a federal law enforcement officer, which entitled him to take advantage of a federal Supremacy Clause immunity defense which was not available to state or local law enforcement agents.

The Court found that “[l]ocal law-enforcement officer deputized as federal agent and acting as part of federal task force had to be treated as federal agent, on local law-enforcement officer's claim to Supremacy Clause immunity defense to state's charge of manslaughter in killing of suspect; officer was serving on full-time assignment to Federal Bureau of Investigation, he had been deputized by both FBI and United States Marshals Service, he maintained office at FBI, was issued FBI equipment, and had access to all nationwide FBI computer files, and officer had ample cause to believe that suspect was attempting to wrongfully obtain funds from bank and was in pursuit of him when suspect was killed when firearm sympathetically discharged.” Texas v. Kleinert (W.D. Tex. 2015) 143 F.Supp.3d 551.

It’s not just the legal liability or lack thereof that is concerning. Several TFO authorized practices could lead to serious harm and violation of our human rights. For example, demographic mapping without any criminal predicate is allowed under FBI guidelines, while expressly prohibited by California law (SB 31, Lara) and many local police department policies including those of Oakland, San Diego, San Francisco, Sacramento, and Los Angeles. With Trump 2.0 moving to reenact the Muslim Ban, and a need to locate immigrants for his mass deportation program, your local police TFO would be legally protected from civil rights claims brought by those he helped identify in pursuit of Trump’s hate-filled agenda.

This matrix identifies the different legal standards between FBI, California, and several local police policies.

• Memo/matrix here.

• Letter we co-authored on behalf of a 30+ org statewide coalition that successfully stopped a proposed state domestic task force bill from going forward in 2021.

We share the above letter as relevant because you need to understand that California, with a super-majority Democratic Party Senate and Assembly in addition to the Governor and Attorney General Offices, was set to proceed down a similar dangerous path prior to Trump 2.0, and it’ll likely do so again. Only we can keep us safe, not any government.

The majority of this research was done in support of a civil rights ordinance first enacted in San Francisco (2012), and subsequently in Oakland (2017). On this same day in 2017, Oakland also terminated its formal relationship with ICE. In 2020, I led the successful campaign to have Oakland withdraw from the JTTF. Prior to Oakland’s withdrawal, San Francisco (2017) and Portland (2019) made such a move.

The civil rights task force ordinance requires that as a condition of their participation, local law enforcement agents must adhere to the more restrictive (and civil rights protecting) state or local policies, when in conflict with federal guidelines. An annual reporting obligation helps shed light on what activities the task force participated in during the year.

So who is involved, what data are they collecting from us, and why am I supposed to care?

Stay tuned for Part 2 next week