Fraudulent Online Hotel Booking

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ISSN 0014-5688 USPS 383-310

Features

United StatesDepartment of Justice

Federal Bureau of InvestigationWashington, DC 20535-0001

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May 2007Volume 76Number 5

20

Law enforcement agencies cansuccessfully address fraudulent bookingof hotel rooms through the Internet.

Suspects have attempted to exploit thesocial security card application process.

Courts have recently reconciledsecurity-based restrictions withthe right to protest.

Fraudulent OnlineHotel Booking

By Mike Hannah, Gisela Bichler,and John Welter

Identity and Credit CardFraud Issues

By Richard A. Ballezza

Controlling theRight to Protest

By Martin J. King

9 Leadership SpotlightEagles Flock Together

10 ViCAP AlertRobert Brent Bowman

16 Book ReviewTest Validity in Justice andSafety Training Contexts

17 Unusual WeaponZipper Pull/Blade

18 Bulletin ReportsSchool Safety

Computer Investigations Drugs Corrections

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May 2007 / 1

Identity theft and credit cardfraud represent multifac-eted problems with far-

reaching consequences, includ-ing Web-based crime targetingthe travel industry. Fraudulentbooking of hotel rooms throughthe Internet has become a majorissue. To commit this crime,suspects obtain someone’scredit card number—by steal-ing a person’s identity or chargereceipts—and book multiplerooms online at one or severallocations. Then, they either usethe reservations or sell them toassociates. In addition to theloss of revenue experiencedby credit card companies,

Fraudulent OnlineHotel BookingBy MIKE HANNAH, M.P.A.,

GISELA BICHLER, Ph.D.,

and JOHN WELTER

individuals, travel fi rms, andhotels, communities sufferwhen offenders perpetrate addi-tional offenses in their lodgingareas. Evidence found at numer-ous crime sites suggests thatfraudulent booking may fuellocal street crime and narcoticstraffi c.

In dealing with bookingfraud in its jurisdiction, theAnaheim, California, Police De-partment undertook a problem-oriented policing (POP)1 projectthat has proven successful. Thiseffort can serve as an examplefor agencies operating in cit-ies impacted by issues affect-ing the lodging industry. The

department found that resolvingInternet-booking fraud requireda collaborative effort betweenpolice and private industry.It used the SARA (scanning,analysis, response, and assess-ment)2 model to tackle thisproblem and the related crimeand public safety issues affect-ing the city.

THE PROJECT SITE

A suburb of Los Angeles,the city of Anaheim has ap-proximately 350,000 residentsand is known as a major touristdestination. It also is home toa popular theme park, profes-sional baseball and hockey

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2 / FBI Law Enforcement Bulletin

Dr. Bichler is a professor of criminal justice at California State University in San Bernadino.

Mr. Hannah retired as the south district commander of the Anaheim, California, Police Department.

Chief Welter heads with the Anaheim, California, Police Department.

teams, and one of the largest convention centers in the United States. Together, these attrac-tions swell the city’s population daily—Anaheim’s residents seem to disappear compared with the 10.2 million overnight visitors per year staying at one of the 153 hotel properties.3

Another one-third of the lodging facilities appeal to cli-entele seeking luxurious ameni-ties, and most are located in the hotel district, locally referred to as the resort area. Accom-modations vary widely in size and price; the cost of rooms also differs between the low off-sea-son and the peak summer and holiday periods. Approximately half of the properties cater to the family/budget or midrange market, and most are affi liated with large hotel chains.

The Anaheim Police Depart-ment strives to maintain public order in this highly transient

city. All agency employees remain committed to POP as a means of resolving community crime and public safety issues. The Anaheim hotel corridor is located in the south district where police personnel work out of a satellite station.

SCANNING: DEFINING THE PROBLEM

In November 2003, follow-ing an exploration of area crime issues, investigators identifi ed Internet-booking fraud as an important problem affecting the Anaheim resort area. Initially, offi cers noticed high levels of theft, motor vehicle break-ins, narcotics activity, and robbery within the hotel district. Detec-tives investigating these cases discovered that many of the suspects also had fraudulently checked into resort-area hotels. Curious, investigators contacted representatives of the Internet

companies handling the reserva-tions. Through conversations with online-booking representa-tives, detectives connected the fraudulent activity to a larger booking scam often related to identity theft.

Dialogue between the stake-holders revealed that hotel rep-resentatives did not notify the police department of incidents of fraudulent bookings unless they requested assistance per-taining to another crime by the same suspects. Instead, employ-ees followed other procedures to handle these situations. In cases where the Internet com-pany discovered an occurrence of this crime, a representative called the lodging facility and had the violator evicted by hotel staff, and the online fi rm paid for the room up to the date of notifi cation. In instances where the hotel discovered the fraud, they removed the violator and

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May 2007 / 3

”Fraudulent booking

of hotel roomsthrough the Internet

has becomea major issue.

“

notifi ed the Internet-bookingcompany of the eviction; theWeb-based fi rm still paid for theroom. Regardless of the scenar-io, neither procedure requirednotifying the police and neigh-boring properties. Therefore,suspects could continueoffending when ejected fromone location.

ANALYSIS: PREPARINGFOR ACTION

During the scanning phase,police made two importantdiscoveries. Not only did manycases of this fraud remainunidentifi ed because of thetendency of personnel at hotelsand Internet-booking companiesto handle them without policenotifi cation but also patrol of-fi cers generally responded tocalls for service without furtherinvestigation that would revealoccurrences of these crimes.

Moreover, detectives quick-ly discovered that the informa-tion contained in the agency’srecords management systemwas not suffi cient to fully un-derstand the fraudulent-bookingproblem, so they turned to othersources, such as focus groupdiscussions, case studies, hotelsurveys, and suspect interviews,to analyze the issue. Piecingtogether the details from eachsource gave a more compre-hensive picture of the problem,providing new insight andconfi rming existing facts.Investigators gathered and

analyzed this information whilecontinuing to fulfi ll their regularinvestigative responsibilities; noadditional police resources wereavailable for this effort.

Focus Group Discussions

Investigators started byexploring the competing priori-ties and perspectives of three ofthe most affected stakeholders.These included the Internet-booking companies, hotels, andpolice.

customers to use competingcompanies. Further, no central-ized source of fraud informationexisted. The Internet-bookingcompanies saw the problem aspeople abusing the reservationprocess. And, because cases offraud represented such a smallpercentage of the total bookingsmade, fi rms wrote off the costas a business expense. To makematters worse, these companiesperceived law enforcement asuninterested in addressing theproblem.

Hotels

Hotel managers feared theloss of revenue—including thecost of incidentals, potentialdamage to the facility, and lostrevenue from rooms that le-gitimate customers could haverented—even though Internetcompanies pay for the rooms atthe time of booking. Industryrepresentatives voiced con-cern about involving the policeand risking the observation byguests of the arrests of suspectson hotel property, thus having anegative effect on public per-ceptions of the property and, inturn, business.

Discussions revealed that,typically, desk clerks checked inguests using only a confi rmationnumber. During busy registra-tion times and because of theirhesitation to slow the process,personnel were even less likelyto ask for identifi cation. Further,they may have checked females’

Internet-BookingCompanies

Internet-booking sitesused different security-relatedscreening procedures and didnot follow standard e-commercepolicies. For example, not allcompanies required customeraddresses to match the bill-ing address of the credit carduser. While acknowledging thesecurity weaknesses, represen-tatives feared that implementingextensive screening mecha-nisms would lead legitimate

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”

In examining theissue, investigatorsdeemed necessary

a response from boththe law enforcement

and businesscommunities.

“

identifi cation less often. And,due perhaps to a lack oftraining, hotel staffs did notrecognize suspicious situations,such as someone arriving thesame day as an Internet-bookingdate or an individual checkingin for a multiple-night stay withonly a computer for luggage.

Police

Police found developingprosecutable Internet-fraudcases challenging. Workloadcaused the offi cers respondingto calls for service at hotels towork fast, sometimes seekingthe quickest way to deal withthe issue that generated the call(e.g., a theft from the property).They did not consider fraudu-lent bookings of rooms the pri-mary crime problem. Moreover,these complex crime issuesdrained agency resources be-cause of the time they required;offi cers had to collect a largequantity of evidence (e.g., com-puters, multiple forms of victimidentifi cation, and credit cards).And, once they identifi ed thisissue, offi cers faced the frustra-tion of seeing suspects releasedand rearrested, perhaps within aweek, at a different hotel.

Case Studies

Collectively, the stakehold-ers hypothesized that individu-als committed these crimes byexploiting a vulnerable reserva-tion process and a faulty com-munication chain, motivated by

the opportunity to obtain a freeplace to stay while perpetratingother crimes; a source of quickcash (suspects could sell thereservations or trade them fornarcotics to other offenders);and a location to book morerooms online or steal moreidentities. To test this work-ing hypothesis, detectives handsearched all crime reports takenin the hotel district during theprevious 2 years to look for ele-ments of booking frauds. This

Seventy percent of these indi-viduals had previous convic-tions, and 99 percent wereinvolved in narcotics. Eighty-three percent of the perpetratorsregistered at the hotel eitherthe same day or within 1 dayof booking, 98 percent bookedmultiple locations the same day,and 70 percent reserved roomsfor multiple occupants. Suspectsbooked 84 percent of the roomsthrough only two Internet com-panies. They favored upscalefacilities, staying in some roomsand selling others to crimepartners.

Regarding those victimized,76 percent of the stolen creditcard information was from localvictims. Hotels suffered ancil-lary losses totaling approxi-mately $27,000, with the aver-age loss being $930 per case;these included mainly damageto property, incidentals billed tothe credit card, and thefts fromthe hotel.

Forty-one percent of thecases were reported as fraudproblems. In investigating,processing, and fi ling these 29cases, the Anaheim Police De-partment incurred an estimated$100,000 in total costs.

Hotel Surveys

Police offi cers surveyedthe on-duty manager at 42 ofthe 55 hotel properties in thetarget area. Investigators de-ter-mined that people make,on average, 38 percent of all

produced 29 cases that involvedfraudulent room bookings overthe Internet. In all of theseinstances, other crimes (e.g.,thefts, narcotics, and burglaries)committed by the fraud perpe-trators led to the report.

Examination of these 29cases revealed that the fraud-ulent bookings all involvedperpetrators with prior policecontacts, 98 percent of themliving in Southern California.

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May 2007 / 5

© brandXpictures

bookings through independent Internet-booking companies; typically, between .05 and 1 percent of all bookings prove fraudulent. Eighty-three percent of these managers claimed that they did not suffer losses of the nightly lodging fees, and 31 percent reported ancillary losses from theft and damage. Only one hotel enforced its manda-tory identifi cation check poli-cy—this property has not had a fraudulent occupant.

Hotel staff recognized the vulnerabilities in registration processes; however, they con-sidered an easy and convenient check-in process a corporate advantage as additional steps could motivate guests to stay elsewhere. Also, hotels did not want fraud instances to become known, so personnel were re-luctant to notify police of suspi-cious behavior. They feared that having offi cers arrest someone in front of guests would scare the legitimate client base.

Interviews with Suspects

As part of the analysis, police investigators in Anaheim interviewed perpetrators ar-rested for this crime.4 Suspects confi rmed that they obtained someone else’s identity infor-mation, logged onto a Web-based travel-booking site, and reserved rooms in the victim’s name. Then, they stayed in the rooms until removed by hotel staff. The perpetrators

indicated that they preferred two particular independent In-ternet companies because these fi rms required the least amount of personal identifi cation. Ap-parently, while staying at the hotels, the suspects used these locations to commit additional crimes connected with narcot-ics, identity theft, and credit card fraud.

Internet-BookingCompanies

Representatives from Inter-net companies recognized that they needed to incorporate more security precautions at the time of booking. Consequently, new e-commerce protocol requires the three-digit security code on the back of credit cards on some points of sale, and a number of improvements to the fraud prevention program have been enacted. Another Internet-book-ing fi rm implemented security software programs offered by credit card companies, at the point of sale. In addition to en-hanced e-commerce uniformity, Internet-booking companies have increased efforts to share information.

Hotels

Through a cross-train-ing program, police and hotel representatives began sharing important information via the Anaheim Area Hotel/Motel Association. And, with special acknowledgments, hotel person-nel started reinforcing efforts by their staff to recognize suspi-cious situations and subjects during registration. Lodging facilities also now require verifi cation of photo identifi ca-tion for all guests—regardless of the source of the booking—at check-in. Also, through liaisons with police, hotel staff members contact offi cers immediately to evict problematic customers,

RESPONSE: ADDRESSING THE PROBLEM

As the detailed analysis of information from various sourc-es revealed fl aws in the book-ing, check-in, and investigative procedures that created opportu-nities for Internet-booking fraud to fl ourish, detectives realized that resolving the problem would require a multifaceted approach. This would involve efforts by the Internet-booking companies, hotels, and police.

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and improved communication with Internet-booking compa-nies helps ensure identifi cation of fraudulent bookings prior to room registration.

And, through the new Crime Alert Network system, repre-sentatives from the business and law enforcement communities exchange important information through e-mail and fax. At quar-terly update meetings, informa-tion sharing occurs in person.

Police Department

The Anaheim Police De-partment adjusted response protocols involving hotels in the study area. Dispatchers and fi eld sergeants began notifying south district detectives upon receiv-ing any call to a hotel in the resort area. Further, the agency encourages its patrol offi cers to spend more time investigat-ing the calls for service they respond to in the hotel district. If any evidence of fraudulent activity or identity theft arises, offi cers contact specifi c investi-gators in the south district. The department publicly recognizes and awards line offi cers re-sponding to calls for service in the resort area who go beyond simply handling the initial call and look into other possibly related crime issues, such as identity theft or methamphet-amine distribution.

The department also con-sidered education efforts an

important response and began a comprehensive training and awareness program. To date, it has invested about $10,000 for the entire project, including overtime and resources used.

Patrol offi cers receive training about the nature of this complex crime issue because many of them work overtime shifts in, or eventually transfer to, the hotel district. Training occurs through presentations during briefi ngs and covers how to recognize a fraud case and look for indicators of identity theft.

district attorneys’ offi ces to help facilitate prosecution. They informed these parties about the larger scope of the fraud issue. By advising supervisory case-fi ling attorneys about the broad scope and impacts of this crime, police hoped to deter recidivism by invoking more felony-level case fi lings.

Police awareness efforts also targeted the Merchant’s Risk Council (MRC), a profes-sional association representing members in the private sector using e-commerce for business. This organization strives to ag-gressively deal with fraud, spe-cifi cally on the Internet. They have solicited local law enforce-ment to join and partner in this cause. The Anaheim Police De-partment has representation on, and has recently worked with, the MRC.

ASSESSMENT: EVALUATING THE RESULTS

Internet-Booking Companies

Two frequently used Web-based companies have reported a dramatic decrease in the amount of Internet-booking fraud—a 50-percent drop in a recent 12-month span—in the Anaheim area. However, while the Anaheim area has seen dramatic results, a fraud investigation supervisor for one Web-based company remarked,

Police, along with hotel/motel association representa-tives, created a lecture outline to train lodging staffs who handle check-ins. South district po-lice personnel make training presentations.

Additionally, offi cers met with members of the city and

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”

In dealing withbooking fraud in

its jurisdiction, theAnaheim, California,Police Department

undertook a...projectthat has proven

successful.

“

May 2007 / 7

“While our improvementsin our own people, process,and technology have made apositive impact to our fraudprevention efforts, it has nothad the same dramatic impactelsewhere that we have seen inAnaheim. I can only assumethat this is directly related tothe combined efforts of theAnaheim Police Department,the Orange County DistrictAttorney’s Offi ce, hotel securitypersonnel, and the private sectorinvestigations team. Gettingeveryone together to address theissue has resulted in a greaterprevention effort by all par-ties. I think that, ultimately, ourefforts have resulted in a clearmessage to the criminals onthe street that if they commitfraud against us in Anaheim,they will go to jail. I know thatwe were communicating witheach other regarding fraudevents on a weekly and some-times daily basis. The numberof calls now has dropped toalmost zero. We will likely beusing this as a model for actionin other cities.” Industry repre-sentatives indicate that they stillhave other areas in Californiathat experience high levels ofhotel fraud.

Hotels

Informal discussions withhotel managers indicate anapparent decline in fraudulentInternet-based booking

activity. However, hotels havenot tracked the number of fraud-ulent bookings through indepen-dent Web sites, so no statisticaldata exists. In addition, hotelrepresentatives indicate thatcheck-in and registration proce-dure changes have been imple-mented. Training on identifi ca-tion scrutiny and registrationprocedures is ongoing both withpolice and in-house staff. Cur-rently, the on-duty hotel man-ager survey is being repeatedto offi cially document changed

dropped from the 29 cases in2004 to 2 in 2005, a 94 percentdecline. To assess whether theinterventions resulted in anoverall reduction of calls forservice in the hotel district, of-fi cers compared the number ofcalls in the study area for thesame 6-month period in 2004and 2005. The comparisonrevealed a 3 percent increasein calls from 2004 to 2005, notsurprising as one of the antici-pated outcomes was an increasein hotel-initiated calls forservice. An examination of thehotel occupancy rates for thesame period showed a 5 percentincrease in overnight lodginglevels. Thus, because the per-cent change in calls for servicewas lower than the increasein hotel occupancy rates, theefforts of the Anaheim PoliceDepartment and its partnersappear successful in controllingcrime problems in the resortarea. Also, fi gures provided bythe city of Anaheim FinanceDepartment and the Anaheim/Orange County Visitor’s andConvention Bureau indicate a 3percent increase in day visitorsas well.

Anaheim offi cers contactedall adjacent law enforcementagencies and those in nearbydestination cities to assess dis-placement. Discussions revealedno apparent recent increases inhotel-related crimes in theseareas.

calling activity and new check-in procedures. Finally, at theindustry corporate levels, thereis movement to create industry-wide procedures for handling allcheck-ins and fraudulent-book-ing recognition.

Police Department

Reported cases of fraudu-lent guests at hotels in the area

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CONCLUSION

The Anaheim Police De-partment identifi ed a potentialthreat to the safety and securityof its city’s hotel district—thefraudulent booking and occupa-tion of rooms in area hotels bycriminals through independentInternet sites. And, perpetratorsused the rooms to commit othercrimes that victimized peoplewho live in, work in, or visitAnaheim. Fortunately, inves-tigators identifi ed the problemearly, which explains the lownumber of reported crimes.

In examining the issue, in-vestigators deemed necessary aresponse from both the law en-forcement and business commu-nities. In this regard, proceduraland policy changes were madein public agencies and multi-million dollar industries. And,by building partnerships withbusinesses, informing affectedstaff and leaders in the indus-try, and enhancing enforcement,the project team successfullyresolved this problem, dramat-ically reducing fraudulentbooking.

Endnotes

1 For additional information, see Terry

Eisenberg and Bruce Glasscock “Looking

Inward with Problems-Oriented Policing,”

FBI Law Enforcement Bulletin, July 2001,

1-5.2 Ibid.3 The lodging industry in Anaheim

includes both motels (with drive-up access

to rooms) and hotels (with a central lobby

as the primary access point to the rooms).

Throughout this article, the term hotel

refers to both.4 While only three perpetrators would

participate, the detectives found that the

information they derived from this small

sample was consistent with that provided

by other sources.

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Leadership Spotlight

Special Agent Jeffrey C. Lindsey, an instructor and program manager in the Leadership Development Institute at the FBI Academy, prepared Leadership Spotlight.

I really believe that it takes a leader to know a leader, grow a leader, and show a leader. I have also found that it takes a leader to attract a leader. —John C. Maxwell

Eagles Flock Together

May 2007 / 9

external can mean across the country, across town, or across the hall.

The world of sports can provide an ap-propriate analogy. Winning coaches always develop their onboard players while simulta-neously recruiting the best and brightest from the outside. Now, consider the situation from the perspective of the ones being recruited. Do they want to invest their time and talent with a mediocre team led by a mediocre coach?

Or, would they prefer to join a winning team led by a coach who will best

use their skills and build them to an even higher level. Put another way, if you are a B- leader, you are not likely to attract, or keep for long, B+ or better followers. Great leaders attract other great

leaders. Increasing your own leadership quotient will yield at

least two signifi cant benefi ts. Besides becoming more profi cient in increasing

the developmental levels of those you currently lead, you also will enhance your capability to attract even more high-quality leaders to your team. These fresh players not only will bring new energy and capabilities with them but will push you, and their teammates, to even greater levels of success.

“leadership development is fi rst and foremost self-development.” Indeed, much of the cur-rent crop of leadership and management lit-erature primarily focuses on the criticality of lifelong learning for leaders. Effective leaders inherently know the value of constantly seek-ing self-improvement and refusing to remain stagnant in ideas, thoughts, and practice. By continuing to grow, they can better fulfi ll their responsibilities of ac-complishing their missions and developing others. This Spotlight looks at the necessity of proac-tive self-improvement from a slightly different premise: the better leaders become, the better leaders they will attract.

Dynamic and vibrantly led organizations incorporate the con-tinual leadership development of their members into their very fabric. Successful law enforcement leaders also know that build-ing the skills of the players on the team and establishing a deep leadership bench are vital to their organizations’ long-term viability. Highly effective leaders add another step to increasing the capacity of their organizations at all levels. They continually seek to infuse “fresh blood” into the mix by attracting and recruiting those with proven leadership skills from external sources. In practical terms,

n their latest book A Leader’s Legacy, Jim Kouzes and Barry Posner assert that I

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ViCAP Alert


Wanted for Aggravated MurderRobert Brent Bowman

Alert to Law Enforcement

Any agency with information on the where-abouts of fugitive Robert Brent Bowman is asked tocontact Sergeant Steve Forrester at 419-245-1594or [email protected]; or DetectiveBart Beavers at 419-245-3118 or [email protected] of the Toledo, Ohio, Police Depart-ment. Additionally, any agency with a potentiallysimilar case is asked to contact Crime AnalystLesa Marcolini of the FBI’s Violent CriminalApprehension Program (ViCAP) at 703-632-4178or [email protected].

Name: Robert Brent Bowman

AKAs: Robert Baxter Bowman, Bob Roman,Bruce Baxter Bowman, “Bo”

DOB: 04/16/1936

Age: 71

SSN: 546-50-7689

FBI #: 187873E

Race: White

Height: 6 feet

Weight: 150 lbs.

Hair: Blonde/brown/gray

Eyes: Blue

Tattoo: Right arm, sword through heart

Adams in Toledo, Ohio. It is believed that Bow-man abducted the victim after she got off a busand walked in front of his house. He kept her in hisbasement and sexually assaulted her until his wifediscovered her gagged and strapped to a mattresshanging on a wall. Bowman bound her hands andfeet with drapery cord and then tied her ankles toher neck with telephone cord. It is believed thatwhen she struggled or moved, she strangled anddied. Additionally, she was hit in the head with ahammer several times, and a nail was driven intothe back of her skull. A possible bite mark waslocated on her arm. She was redressed (withoutshoes/socks), wrapped in a sheet and rug, and tiedwith an electrical cord. He put her in the trunk ofhis vehicle, transported her across state lines ap-proximately 10 to 15 miles into Michigan, anddumped her body in a remote fi eld. Bowman hastraveled across the country. He is now possiblyhomeless, living on the streets in a warm climatearea.

NA links Bowman to the 1967 abduction,rape, and murder of 14-year-old EileenD

Age progression sketches of Robert Brent Bowman.

19861982

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May 2007 / 11

© Comstock Images

The Social Security CardApplication ProcessIdentity and Credit Card Fraud IssuesBy RICHARD A. BALLEZZA

The mission of the U.S.Social Security Ad-ministration (SSA) is

“[t]o advance the economicsecurity of the nation’s peoplethrough compassionate andvigilant leadership in shapingand managing America’s socialsecurity programs.” Further,“[t]he programs administeredby the agency touch the lives ofover 95 percent of the American

public and improve the econom-ic well-being of the nation.”1

In today’s changing world, lawenforcement agencies should beaware of the challenges the SSAhas encountered while protect-ing citizens from criminals whoattempt to acquire social secu-rity cards to facilitate a widerange of fraud.

Organized groups of indi-viduals have presented

counterfeit, altered, and fraud-ulently obtained identifi cation(ID) documents at district offi c-es of the SSA to obtain genuinesocial security cards ultimatelyused for credit card fraud.

Background

Two weeks after September11, 2001, personnel at a bankin New York noticed that thesame male customer used two

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Special Agent Ballezza serves in the FBI’s New York City office.

“

”

Certain procedurescan help prevent

unauthorizedpersons from

obtaining a socialsecurity card....


different identities to openchecking accounts on differentdates. A comparison of pho-tocopies of the ID documentsshown to open the checkingaccounts indicated that the sameperson presented Pakistani pass-ports, along with a social securi-ty card. Employees notifi ed thelocal FBI offi ce and proceededto determine if this subject hadopened additional accountsat other branches of the bank.Their investigation showed thatthe suspect had opened otheraccounts, displayed a differentsocial security card on each oc-casion, and also used a nondriv-er New York State ID card foridentity purposes.

The Scheme

The FBI’s preliminaryinvestigation revealed that theinitial suspect maintained fi veapartments and had at least 45

different New York State IDcards. The FBI agent conduct-ing the investigation contactedthe Offi ce of Inspector Generalfor the SSA (OIG/SSA) in NewYork to obtain copies of theSS-5 (the application form usedto apply for a social securitycard) for each social securitynumber identifi ed. The applica-tions were complete and hadbeen submitted with supportingidentifi cation at a district offi ceof the SSA. The SS-5s showedthe name of the applicant, mail-ing address, and other identifi -ers, as well as the district offi cewhere the subject originallysubmitted the form. The FBIrequested additional copies ofSS-5s after investigation identi-fi ed a second male suspect, aswell as a third (female), en-gaged in the same type of activ-ity. Investigators now realizedthat three people were assuming

at least 104 different identities.Although the initial bank hadnot suffered a fi nancial loss thusfar, investigators conductedvarious fi nancial checks todetermine if any of the identi-ties appeared to be involved incredit card fraud. Perpetratorshad used some of the identitiesto open more than 20 credit cardaccounts, causing those compa-nies to lose more than severalhundred thousand dollars.

The Scope

An OIG/SSA agent in Bos-ton, Massachusetts, contactedthe FBI case agent in New YorkCity and advised that he wasinvestigating more than 600 SS-5s, which included those underinvestigation by the FBI’s NewYork City offi ce. Further, he haddetermined that two individualsfrom the New York City met-ropolitan area had organizeda scheme to help hundreds ofpeople, primarily from the NewYork area, obtain social secu-rity cards using counterfeit IDdocuments produced at districtoffi ces of the SSA. It appearedthat some had received just onesocial security card, but othershad them for many identities.

The mailing address listedon the SS-5s usually was amail-forwarding center box.The issued social security cardwas mailed to that box, ratherthan to the applicant’s actualresidence. These boxes pri-marily were in Massachusetts,

59041x.indd 1259041x.indd 12 4/12/2007 11:47:57 AM4/12/2007 11:47:57 AM

”

...law enforcementagencies should

be aware ofthe challenges the

SSA has encounteredwhile protecting

citizens....

“

May 2007 / 13

Rhode Island, and Connecticut;therefore, suspects had usedmany different SSA district of-fi ces. Investigation determinedthat the case did not appear toinvolve corruption by any cus-tomer service representatives atthese offi ces.

The person who submittedthe SS-5 application with sup-porting ID documents receiveda social security card in aname that matched the one onthe documents. However, thatsame person also subsequentlyreceived social security cardsthat did not match the fi rst andlast names on those documents.Suspects used Pakistani pass-ports to apply for as many asfour different social securitycards. Investigation revealedseveral issues in the applicationprocess.

First, although the case pri-marily involved the use of Paki-stani passports, suspects alsoused some from other countries.The Pakistani passports were al-tered by the addition of a coun-terfeit U.S. visa and a fake I-94Arrival-Departure Record card.2

Basically, people in the UnitedStates as tourists do not havepermission to work, so theywould have to alter their visasto indicate a class that permitsemployment. Most individualsinvolved in this fraud had coun-terfeit visas with class “H1-B,”which allows the person to workin the United States. Apparently,certain evidence submitted for

identifi cation purposes was notcompared; therefore, the SSAdid not determine that the samepassport or other ID documentwas used previously to applyfor and, in most cases, receivea social security card. Copiesof the SS-5s showed that thesame Pakistani passport wassubmitted as evidence of iden-tity for different applications.

the customer service represen-tative to process the applica-tion to issue a card that did notexactly match the fi rst and lastnames as they appeared on theidentity documents. One personinvolved in the fraud admit-ted to basically just telling thecustomer service representative“That’s how it’s spelled in mycountry” to get the individual toaccept the application.

Second, various numbers onthe ID documents, such as thepassport, visa control, visa, andI-94 Arrival-Departure Recordnumbers, were incorrectly iden-tifi ed. These discrepancies werediscovered after FBI agentsfrom New York City executedsearch warrants and recoveredmany of the original ID docu-ments used to obtain the socialsecurity cards.

Third, due to efforts toreduce paperwork, copies werenot routinely made of the evi-dence submitted at the time ofthe application. Rather, copieswere made only if a customerservice representative becamesuspicious of the documentspresented. In such cases, thephotocopies were forwardedto the U.S. Immigration andCustoms Enforcement (ICE) forreview, but the originals wereimmediately returned to the ap-plicant at the district offi ce. Theapplicant then left the districtoffi ce and waited to fi nd outif the social security card wasissued.

For example, passport #123456in the name of John (FN) Smith(LN) was used to obtain a socialsecurity card. A subsequent SS-5 showed that the same passportwas submitted as proof of iden-tity to obtain a card in the nameof Smith (FN) John (LN). Then,a third SS-5 involving that samepassport was used to obtain acard in the name of Jon (FN)Smith (LN). Obviously, becausemost of the people who appliedfor the social security cards hadforeign-sounding names, theapplicant more easily convinced

59041x.indd 1359041x.indd 13 4/12/2007 11:48:38 AM4/12/2007 11:48:38 AM

”

Perpetrators hadused some of

the identities toopen more than20 credit cardaccounts....

“


The Resolution

Members of the FBI, ICE,and state and local law en-forcement agencies executedsearches at various suspect loca-tions believed to be involved inthese frauds. They arrested thetwo male suspects at differentlocations. Despite recovering 13Pakistani passports bearing thephotograph of the same female,they did not locate her on thatdate. Many of the locationssearched appeared to be maildrops for credit cards—they hadno furniture except a bed andvirtually nothing else. Vari-ous ID documents, as well asledger books, were found hid-den between the mattress andbox spring of beds. The ledgerscontained detailed data for eachassumed identity, showing all ofthe information for that person,such as fi ctional parental names,mailing address for the socialsecurity card, employmentaddress, and phone number.Subjects had organized the IDdocuments for each identity byusing a wallet or plastic checkregister holder that containeda driver’s license (or state IDcard), social security card, bankATM card, information on thestarter checking account openedby the person, and, in somecases, more than 20 credit cardsin the name of that particularassumed identity.

Investigation revealed thatthese subjects primarily were

from the New York Citymetropolitan area. They fi rstfraudulently obtained a socialsecurity card with the help ofa New York City resident whoOIG/SSA agents in Boston,Massachusetts, apprehendedwhile he drove his custom-ers around to apply for socialsecurity cards in Massachusetts.This individual, along withthe help of a female accom-plice, charged between $1,000to $1,500 to manufacture the

who periodically checked thecontents of the box.

Once the SSA mailed thecard, the New York City resi-dent picked it up and arrangeda second meeting with the ori-ginal customer, who then paidthe second half of the fee andreceived the social securitycard. Some of the customersapplied for just one card, butothers, particularly those whoseaim was credit card fraud, ap-plied for many different ones.

Once the suspects had asocial security card, they couldobtain a driver’s license (orstate ID) and open a bank ac-count. They usually opened achecking account with a $500deposit and paid bills on time,which established good creditand enabled them to begin ap-plying for credit cards. Investi-gation determined that the goalwas to obtain 20 credit cards ineach name. In turn, this allowedeach identity a cash advancepotential of $60,000. The fullevolution of this scheme tookup to 18 months.

One of the suspects hadassumed more than 50 identi-ties, so he had the opportunityto make about $3 million forhis efforts. The female suspect,whose passports were recoveredduring the searches, eventuallywas arrested in Brooklyn. Anadditional eight suspects associ-ated with the other three werearrested there as well.

counterfeit visas and I-94 Ar-rival-Departure Record cardsand helped people obtain a so-cial security card. They chargedone-half of the fee up front, paidat a meeting in Manhattan, NewYork. Customers later would bedriven to a district offi ce of theSSA in Massachusetts, RhodeIsland, or Connecticut to submitthe SS-5. The mailing addresson the SS-5 was a mail-forward-ing center box controlled by thesame New York City resident

59041x.indd 1459041x.indd 14 4/12/2007 11:48:53 AM4/12/2007 11:48:53 AM

Wanted:Notable Speeches

he FBI Law EnforcementBulletin seeks transcriptsT

of presentations made bycriminal justice professionalsfor its Notable Speech depart-ment. Anyone who has de-livered a speech recently andwould like to share the infor-mation with a wider audiencemay submit a transcript of thepresentation to the Bulletin forconsideration.

As with article submis-sions, the Bulletin staff willedit the speech for length andclarity, but, realizing that theinformation was presentedorally, maintain as much ofthe original fl avor as possible.Presenters should submit theirtranscripts typed and double-spaced on 8 ½- by 11-inchwhite paper with all pagesnumbered. When possible, anelectronic version of the tran-script saved on computer diskshould accompany the docu-ment. Send the material to:

Editor, FBI Law Enforcement Bulletin FBI Academy Madison Building, Room 201 Quantico, VA 22135 telephone: 703-632-1952, e-mail: [email protected]

May 2007 / 15

Recommendations

Certain procedures can helpprevent unauthorized personsfrom obtaining a social securitycard and can give investigatorsa greater chance of determiningthe perpetrators. First, customerservice representatives at SSAdistrict offi ces enter the hand-written data from the SS-5 intothe computer. Additional train-ing at SSA district offi ces willensure that personnel correctlyidentify the various numbers ongovernment visas and immigra-tion documents. Moreover, byuploading specifi c software,SSA computers can compareinformation and determine ifsomeone already has used thesame passport or identifi ca-tion to apply for (or receive) asocial security card. Then, thecomputer will alert the repre-sentative entering the data thata possibility of fraud exists. Atthat time, the matter should bereferred to another person forcloser review.

Employees can scan alldocuments exhibited as proofof identity into the computerwith a link to a digital photo orsome type of biometric identi-fi er, such as a scanned image ofat least one fi ngerprint. Furthertechnological enhancementsinvolve having the SSA com-puter equipped with the abilityto interface with the U.S. De-partment of State for concernspertaining to visas and with ICE

regarding departure records andemployment authorization doc-uments because criminals mayuse counterfeit U.S. visas orimmigration documents to helpobtain social security cards.

Conclusion

The issuance of social secu-rity cards by the Social SecurityAdministration is primarily asocial service function to helpadminister benefi ts. However,criminals are increasingly usingthe cards to facilitate numerousfraudulent activities.

Law enforcement profes-sionals should be aware thatsuspects have presented coun-terfeit or altered identifi cationdocuments to obtain the cardsand then used them to acquiremultiple credit cards, resultingin the loss of hundreds of thou-sands of dollars to credit cardcompanies. Increased vigilanceby all involved federal, state,and local agencies will ensurethat attempts by these criminalsto exploit the social securitycard application process areimmediately thwarted, and theSSA can continue its missionof advancing this nation’s eco-nomic security.

Endnotes1 U.S. Social Security Administration.2 A U.S. Citizenship and Immigration

Services Form I-94 (Arrival-Departure Re-

cord) shows the date an individual arrives

in the United States and the date when the

authorized period of stay expires. For more

information, see http://www.uscis.gov.

59041.indd 1959041.indd 19 3/24/2007 2:32:59 AM3/24/2007 2:32:59 AM

Book Review


Test Validity in Justice and SafetyTraining Contexts: A Study of Criterion-Referenced Assessment in a Police Academyby Kevin I. Minor, James B. Wells, KimberlyCobb, Beverly Lawrence, and Terry C. Cox,Charles C. Thomas Publisher, Springfi eld,Illinois, 2005.

In view of the post-September 11 era,training offi cials are likely to be called todemonstrate that their academic and in-servicetraining objectives prove consistent with therequired knowledge and skills of their per-sonnel. That law enforcement trainers havea scientifi c method to assess and validatetrainee performance represents the core reasonfor this book’s existence. As such, it is amust-have resource for all training and testdevelopers.

Test Validity in Justice and Safety TrainingContexts is a state-of-the-art book for assess-ing and validating actual knowledge and skilldevelopment required to achieve the levels ofcompetency and consistency necessary in theperformance of duty. The book involves anactual research study conducted on-site for the16-week (640 hours) Kentucky Department

of Criminal Justice Training at the Louisvilleand Richmond facilities concerning state-mandated entry-level and in-service trainingfor approximately 9,000 law enforcement per-sonnel each year.

It is not a theoretical approach but an actualdemonstration of the concepts of developingand using test validity and reliability instru-ments with respect to criterion verses norm-referenced measurement of trainee knowledgeand skills against individual performance andstandard learning objectives. Did the traineeachieve the intended knowledge and skills bythose trainers who developed and presented thetraining curriculum?

This book is designed, developed, and im-plemented in three phases for law enforcementtrainers. Phase I (chapters 1 through 4) entailsthe preparation of criterion-referenced tests forthe validation study, along with pilot testingof data collection and pretest data. Phase II(chapters 5 and 6) involves the collection andanalysis of data, content, and construct valid-ity of those items produced in Phase I, such asreliability and test bias. Phase III (chapters 7and 8) reviews a predictive validation of testitems and contains an identifi cation of funda-mental concerns that must be addressed whendeveloping test items and attempts to validatetesting instruments. The book has fi ve compel-ling aspects.

1) a list that identifi es numerous guide-lines for developing valid test questionswith appropriate test distracters;

2) an 8-page rating instrument (assess-ment tool matrix) covering law enforce-ment administration, investigation, patroloperations, legal aspects, patrol andadvanced skills, fi rearms, and defensivetactics;

59041.indd 2059041.indd 20 3/24/2007 2:33:40 AM3/24/2007 2:33:40 AM

May 2007 / 17

Unusual Weapon

Law enforcement offi cers should be aware that offenders may use this unusual weapon, which looks like a zipper pull. Instead, this object has a plastic insert in the handle and metal blades. It also may be worn as a necklace, carried as a key chain, or mixed in with coins.

Zipper Pull/Blade

X-ray of zipper pull/blade.

3) a 13-page matrix that outlines the cur-riculum objectives on those areas men-tioned in the rating instrument;

4) a 12-page matrix of essential law en-forcement tasks and their corresponding curriculum objectives; and

5) a 4-page supervisor’s employee-rating matrix on job performance.

Test Validity in Justice and Safety Train-ing Contexts contains a comprehensive and systematic approach involving the authors’ study and fi ndings supported by applicable statistical analysis methodologies identifi ed

and discussed in numerous tables in the text, which are easily understandable. It can apply to all law enforcement agencies at the town, city, county, state, and federal levels, as well as fi re departments, hazardous materials units, and emergency medical services.

Reviewed byMajor Larry R. Moore (Ret.)

U.S. Army Military Police CorpsCertifi ed Emergency Manager

International Association of Emergency Managers

Knoxville, Tennessee

59041x.indd 1759041x.indd 17 4/12/2007 11:49:14 AM4/12/2007 11:49:14 AM


Bulletin Reports

Bulletin Reports is an edited collection of criminal justice studies, reports, andproject findings. Send your material for consideration to: FBI Law Enforcement

Bulletin, Room 201, Madison Building, FBI Academy, Quantico, VA 22135. (NOTE:The material in this section is intended to be strictly an information source and

should not be considered an endorsement by the FBI for any product or service.)

Indicators of School Crime and Safety, 2006, presents data oncrime and safety at school from the perspectives of students, teachers,principals, and the general population. A joint effort by the Bureau ofJustice Statistics and the National Center for Education Statistics, thisannual report examines crime occurring on campus, as well as on theway to and from school. It provides the most current detailed statisticalinformation on the nature of crime in schools, campus environments,and responses to violence and crime at school. Information was gath-ered from an array of sources, including editions of the National CrimeVictimization Survey, School Crime Supplement to the National CrimeVictimization Survey, Youth Risk Behavior Survey, School Survey onCrime and Safety, and the School and Staffi ng Survey.

Highlights include the following: from July 1, 2004, through June30, 2005, 21 homicides of youths ages 5 to 18 occurred at school; in2003 to 2004, teachers’ reports of being threatened or attacked by stu-dents during the previous 12 monthsvaried according to their school level;and the percentage of public schoolsexperiencing one or more violent inci-dents increased from 71 to 81 percentbetween the 1999 to 2000 and 2003 to2004 school years. This report is avail-able online at http://www.ojp.usdoj.gov/bjs/pub/pdf/iscs06.pdf or by con-tacting the National Criminal JusticeReference Service at 800-851-3420 orhttp://www.ncjrs.gov/.

School Safety

The National Institute of Justice’s (NIJ)Investigations Involving the Internet and Com-puter Networks is intended as a resource for in-vestigators responsible for such cases. Any crimecould involve devices that communicate throughthe Internet or through a network. Criminals mayuse the Internet for numerous reasons, includingtrading/sharing information (e.g., documents andphotographs), concealing their identities, andgathering information on victims. This reportis available at http://www.ncjrs.gov/pdffi les1/nij/210798.pdf or by contacting the NationalCriminal Justice Reference Service at 800-851-3420 or http://www.ncjrs.gov/.

Computer Investigations

59041x.indd 1859041x.indd 18 4/12/2007 11:49:29 AM4/12/2007 11:49:29 AM

May 2007 / 19

The Offi ce of National Drug Control Policy introduces Pushing Back Against Meth:A Progress Report on the Fight Against Methamphetamine in the United States, which highlightsthe recent progress made across all 50 states through the passage and implementation of laws,laboratory incident seizures, and positive workplace tests for amphetamines in reducing meth-amphetamine production. In 2005, a pattern became apparent in the United States—a nation-wide drop in methamphetamine laboratory incidents. In 2004, there were approximately 17,750methamphetamine laboratory seizures by law enforcement in the United States. In 2005, thisnumber was 12,500, a drop of more than 30 percent. Early 2006 data has suggested a continuingdecline. The primary reason for this downhill trend is the enactment of various state laws, whichstarted in Oklahoma in 2004. By early 2006, more than 40 states had implemented some typeof new restriction on retail transactions involving products containing certain chemicals thatcould be used to make methamphetamine. In 2006, the Combat Methamphetamine Epidemic Act(CMEA) went into effect, which set a nationwide baseline standard for how to legally sell theseproducts, including some popular over-the-counter cold medications. In some states, enactmentof the CMEA was followed by a swift and sudden decline in methamphetamine laboratory inci-dents, sometimes as much as 75 percent or more. However, in some states, the decline was lessdramatic. This state-by-state annual report examines progress made on the fi ght against meth-amphetamine in the United States for 2005. This publication is available online at http://www.whitehousedrugpolicy.gov/publications/pdf/pushingback_against_meth.pdf or by contacting theNational Criminal Justice Reference Service at 800-851-3420 or http://www.ncjrs.gov/.

Drugs

Medical Problems of Jail Inmates provides fi ndings on prisoners who reported a currentmedical problem, a physical or mental impairment, or an injury since admission based on datafrom the 2002 Survey of Inmates in Local Jails. The prevalence of specifi c medical problemsand conditions also are included. The report examines medical problems and other conditions bygender, age, time served since admission, and select background characteristics. Highlights in-clude the following: more than one-third of jail inmates reported having a current medical prob-lem; 22 percent advised having a learning impairment; and 11 percent said they had impairedvision. Heart valve damage (290 per 10,000 inmates) and arrhythmia (211 per 10,000) werethe most commonly reported types of heart problems. This Bureau of Justice Statistics report isavailable online at http://www.ojp.usdoj.gov/bjs/pub/pdf/mpji.pdf or by contacting the NationalCriminal Justice Reference Service at 800-851-3420 or http://www.ncjrs.gov/.

Corrections

59041x.indd 1959041x.indd 19 4/12/2007 11:49:36 AM4/12/2007 11:49:36 AM

In towns it is impossible toprevent men from assembling,getting excited together andforming sudden passionateresolves. Towns are like greatmeeting houses with all theinhabitants as members. Inthem the people wield immenseinfluence over their magistratesand often carry their desires intoexecution without intermediaries.

—Alexis de Tocqueville

Legal Digest


© Mark C. Ide

Time, Place, and MannerControlling the Right to ProtestBy MARTIN J. KING, J.D.

These words, publishedin 1835 by Alexis deTocqueville in the book

American Democracy, wereintended as an observation onthe importance of the right ofassembly to a citizen’s ability todirectly infl uence the politicalprocess.1 However, the ability to“carry their desires into execu-tion” has a potentially ominousconnotation in a post-Septem-ber 11 environment where aconcern for security and publicsafety is paramount. If, forexample, the desire to be car-ried into execution is to “affectthe conduct of a government by

mass destruction,” then it quali-fi es as an act of terrorism thatlaw enforcement is charged withpreventing.2 An event, activity,or meeting having political, ide-ological, or social signifi cancemight hold an equal attractionto a peaceful protestor as itwould to a potential terrorist oranarchist. Thus, the dilemma,long faced by law enforcementbut now exacerbated by theomnipresent threat of terrorism,is how to effectively exercisecontrol over such events, whichoften involve large gatheringsof people, in the interest of pre-serving public order and safety

59041.indd 2459041.indd 24 3/24/2007 2:36:46 AM3/24/2007 2:36:46 AM

May 2007 / 21

without trammeling the FirstAmendment rights of protest-ers. This article examines howcourts have recently reconciledsecurity-based restrictions withthe right to protest.

The Right of Public Protest

Freedom of speech and theright of the people peaceablyto assemble are specifi callyguaranteed by the First Amend-ment to the U.S. Constitution.3

Protest activity falls squarelywithin the First Amendment’sguarantees of freedom of speechand assembly.4 The right toprotest is most highly protectedwhen assembly for purposesof expression takes place onproperty that, by law or tradi-tion, has been given the statusof a public forum, such aspublic streets, sidewalks, andparks, rather than on propertythat has been limited to someother governmental use.5 Nev-ertheless, it is well settled thatthe First Amendment does notguarantee unlimited access togovernment property for ex-pressive purposes. Becauseexpressive conduct occurring inpublic places, by its very nature,may confl ict with other pursuitsof the general population withinthat space, the need to balancecompeting interests in this areahas long been recognized.6

The U.S. Supreme Court itselfhas noted that “courts have foryears grappled with the claimsof the right to disseminate

ideas in public places as againstclaims of an effective power ingovernment to keep the peaceand protect other interests of acivilized community.”7

Accordingly, althoughprotest activity in public placesis protected by the Constitutionas free speech, it is afforded lessprotection than other forms ofexpression that do not involveconduct.8 Individuals whocommunicate ideas by conduct,such as participating in a pro-test march, have less protectionthan those who communicateideas by “pure speech,” such asspeaking or publishing. In-deed, the terms speech plus andexpressive conduct are used todescribe public demonstrationsthat involve the communica-tion of political, economic, orsocial viewpoints by means ofpicketing, marching, distribut-ing leafl ets, addressing publiclyassembled audiences, soliciting

door-to-door, or other forms ofprotest.9 The expression of ideasin a manner that neither threat-ens public safety nor under-mines respect for the rule of lawis afforded comprehensive pro-tection under the First Amend-ment. When speech does notinvolve aggressive disruptiveaction or group demonstrations,it is almost always protectedfrom government regulation.10

Conduct, however, is subjectto reasonable regulation by thegovernment even though in-tertwined with expression andassociation.11 Demonstrationroutes, for instance, sometimesmust be altered to accountfor the requirements of traf-fi c or pedestrian fl ow.12 Peoplehave a constitutional right tomarch in a protest but not withnoisy bull horns at 4 a.m. in aresidential neighborhood.13 Inregulating expressive conduct,the government is not permitted

“

”Special Agent King is a legal instructor at the FBI Academy.

Reasonablerestrictions as to

the time, place, andmanner of speech

in a public forum arepermissible provided

those restrictionsare justified....

59041x.indd 2159041x.indd 21 4/12/2007 11:49:47 AM4/12/2007 11:49:47 AM


to completely close all avenuesfor public protest or to restrictaccess to public forums basedon considerations of the contentof the message or viewpoint ofthe speaker.14

Government restriction ofexpressive activity imposed inadvance of its occurrence raisesthe specter of a prohibited formof content or viewpoint dis-crimination known as a “priorrestraint” on speech.15 Concernsover prior restraints relateprimarily to government restric-tions on speech that result incensorship.16 Although the U.S.Supreme Court has indicatedthat “any system of prior re-straints of expression comesto this Court bearing a heavypresumption against its consti-tutional validity,” it has consis-tently refused to characterizegovernment restriction of pro-test activity as a prior restraint.17

Restrictions imposed on expres-sive conduct must not operateas a form of censorship. There-fore, when imposing restrictionson protest activity, the govern-ment is not permitted to dis-criminate based on the contentor viewpoint of the demonstra-tors and must allow for ad-equate alternative means ofexpression. A complete ban onprotest activity that effectivelysilenced dissent in a publicforum would be a presumptive-ly unconstitutional prior re-straint on speech and, accord-ingly, is rarely encountered in

actual practice.18 Much morecommonly presented are gov-ernment efforts to regulateprotest activity through apermitting or licensing processwhereby offi cials are put onnotice of the planned activityand then seek to impose analternative date or time or adifferent location or route thanthat requested by the organizersof the protest.19

neutrality, in speech cases gen-erally and in time place or man-ner cases in particular is wheth-er the government has adopted aregulation of speech because ofdisagreement with the messageit conveys.”21 A fundamentalprinciple behind content analy-sis is that “government maynot grant the use of a forum topeople whose views it fi nds ac-ceptable, but deny use to thosewishing to express less favoredor more controversial views.”22

Even given that protest activityis expressive conduct, courtstake a categorical approach tothe question of conduct versuscontent regulation. In assessingwhether a government restric-tion is content neutral, courtslook at the literal language ofthe restriction, rather than delv-ing into questions of any hid-den motive to suppress speech;stated another way, “whether astatute is content neutral or con-tent based is something that canbe determined on the face of it;if the statute describes speechby content then it is contentbased.”23

Time, place, and mannerrestrictions do not target speechbased on content, and, to standup in court, they must be ap-plied in a content-neutral man-ner. The U.S. Supreme Courthas developed a four-part testto determine the constitutionalvalidity of time, place, andmanner regulation of expressiveconduct in a public forum.

Time, Place, andManner Restrictions

Where government restric-tions are not based on censor-ship of the viewpoint of the pro-testors, courts employ the FirstAmendment doctrine of time,place, and manner to balancethe right to protest against com-peting governmental interestsserved by the enforcement ofcontent-neutral restrictions.20 Indifferentiating between content-based and content-neutral re-strictions on the right to publicprotest, the U.S. Supreme Courthas held that “[t]he principalinquiry in determining content

Protest activity fallssquarely within theFirst Amendment’s

guarantees offreedom of speech

and assembly.

”“

59041x.indd 2259041x.indd 22 4/12/2007 11:50:06 AM4/12/2007 11:50:06 AM

May 2007 / 23

© Mark C. Ide

1) The regulation must servean important governmentinterest (e.g., public safety).

2) The government interestserved by the regulationmust be unrelated to thesuppression of a particularmessage (i.e., contentneutral).

3) The regulation must be nar-rowly tailored to serve thegovernment’s interest.

4) The regulation must leaveopen ample alternativemeans for communicatingthe message.24

All four of these require-ments must be satisfi ed tosurvive a constitutional chal-lenge, and failure to satisfy evenone will render the restrictioninvalid. The third and fourthcriteria are closely aligned.Narrow tailoring means thatthe restriction imposed is notsubstantially broader than nec-essary to achieve the govern-ment’s interest. However, “theregulation will not be invalidsimply because a court con-cluded that the government’sinterest could be adequatelyserved by some less speech-restrictive alternative.”25 Inother words, a narrowly tailoredrestriction does not require thegovernment to impose the leastintrusive restriction possible.The case of Hill v. Coloradoillustrates the straightforwardapproach taken by the U.S.Supreme Court when applying

this test to government-imposedrestrictions on protest activity.26

In Hill, antiabortion protestorschallenged the constitutionalityof a Colorado statute that madeit unlawful for “any person to‘knowingly approach’ withineight feet of any person, withoutthat person’s consent, ‘for thepurpose of passing a leafl et orhandbill to, displaying a sign to,or engaging in oral protest, edu-cation or counseling with such

message it conveys.” Thisconclusion is supported notjust by the Colorado court’sinterpretation of legislativehistory, but more impor-tantly by the State SupremeCourt’s unequivocal holdingthat the statute’s “restric-tions apply equally to alldemonstrators, regardless ofviewpoint, and the statutorylanguage makes no refer-ence to the content of thespeech.” Third, the state’sinterest in protecting accessand privacy, and providingpolice with clear guidelines,are unrelated to the con-tent of the demonstrator’sspeech. As we have repeat-edly explained, governmentregulation of expressiveactivity is “content neutral”if it is justifi ed withoutreference to the content ofregulated speech.28

The Court also held that thestatute was narrowly tailoredand left open ample alternativesfor communication, observ-ing that it only restricted thelocation where communicationcould take place, and noted thatno limitations were placed onthe number, size, or contentof text or images portrayed onprotestors’ signs.29 “Under thisstatute, absolutely no channelof communication is foreclosed.No speaker is silenced. And nomessage is prohibited.”30

Content-neutral regulationof speech means the restrictions

other person,” within 100 feetof the entrance to any healthcare facility.27 In declaring thestatute a valid time, place, andmanner restriction, the Courtheld:

The Colorado Statute passesthat test for three indepen-dent reasons. First, it is nota “regulation of speech.”Rather, it is a regulationof the places where somespeech may occur. Second,it was not adopted “becauseof disagreement with the

59041x.indd 2359041x.indd 23 4/12/2007 11:50:18 AM4/12/2007 11:50:18 AM


Restrictions imposedon expressive

conduct must notoperate as a form

of censorship.

”“

are placed on speech regardlessof what the speaker has to say.Such content-neutral regulationsthat interfere with what other-wise would be First Amend-ment protected expression areexamined under a balancingtest, comparing the state’sinterest in prohibiting theactivity in question to the levelof interference with the speakerwhich is often determined bylooking at available avenues ofcommunication.

Demonstration Zones

The undeniable and veryserious concerns about safetyand security at public venuesthat attract large-scale protestactivity have been described byone court as follows: “We havecome to a point where it may beanticipated at…national securityevents, that some signifi cantportion of demonstrators amongthose who want the closestproximity to…participants, con-sider assault, even battery, partof the arsenal of expression.And as a consequence, thoseresponsible for safety must planfor violence.”31 Where it can bereasonably anticipated that anevent likely will attract threatsfrom persons seeking to carryout criminal acts to disrupt theproceedings and bring attentionto extremist political causes,law enforcement preparationscommonly include the proac-tive imposition of demonstra-tion zones or security zones

as a means of providing somemeasure of physical security tothe event.

Both free-speech zones thatdesignate restricted areas withinwhich protest activity may takeplace and speech-free zones thatprohibit protest activity fromtaking place within designatedareas have been employed andoften in conjunction with eachother.32 An analysis of the rela-tively few cases concerningthe legality of demonstration

In response to events sur-rounding the 1999 World TradeOrganization (WTO) confer-ence in Seattle, a restricted zonewas implemented by the cityin response to actual physicalobstruction of the conferencevenue, property damage, andother violent acts committed byprotestors.34 Under the city’semergency order, protestorswere completely barred fromentering a designated restrictedzone—in First Amendmentterms, a no-speech zone—thatcovered the convention site andhotels where the WTO delegateswere staying.35

The U.S. Court of Appealsfor the Ninth Circuit found thatthe restricted zone “was not aregulation of speech content,but rather was ‘a regulation ofthe places where some speechmay occur.’”36 In reaching thatconclusion, the court applied thetraditional time, place, and man-ner analysis, fi nding both that1) the order itself made no ref-erence to the content of speechand 2) the fact that the order“predominantly affected protes-tors with anti-WTO views didnot render it content based.”37

The court next determined thatthe measure was narrowly tai-lored to serve the government’sinterest in maintaining publicorder. “In the face of a violentriot, the City had a duty torestore order and to ensure thesafety of WTO delegates andthe residents of Seattle. The

zones refl ects that the chal-lenged security measures wereindisputably content neutral andthat there was no doubt as to theimportance of the governmentinterest in maintaining securityat special events, such as politi-cal conventions.33 Accordingly,the decisions turn predominant-ly on the resolution of whetherthe array of security precautionswere narrowly tailored to meetthe security interest at stake andwhether those precautions leftopen ample alternative avenuesof communication.

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City also had an interest in see-ing that the WTO delegates hadthe opportunity to conduct theirbusiness at the chosen venue forthe conference; a city that failedto achieve this interest wouldnot soon have the chance to hostanother important internationalmeeting.”38

The court noted that “amunicipality is required toprovide tangible evidence thatspeech-restrictive regulationsare necessary to advance theproffered interest in publicsafety.”39 Although the city wasnot required to choose the leastrestrictive alternative, the courtindicated that an assessment ofalternatives still can bear on thereasonableness of the tailoringof the restriction and whether itis narrowly tailored as required.“We have said that ‘if there arenumerous and obvious less-bur-densome alternatives to the re-striction on [protected] speech,that is certainly a relevantconsideration.’”40

Finally, the court resolvedwhat it described as a very dif-fi cult question, in holding thatample alternative channels ofcommunication were availableto the demonstrators outside therestricted zone.41 On the onehand, the protestors were notpermitted to protest directly inthe presence of the delegatesthey presumably sought toinfl uence. On the other hand,the protestors were able todemonstrate and express their

views immediately outside therestricted zone, including areasdirectly across the street fromWTO venues. Ultimately, thecourt concluded that the protes-tors could reasonably expecttheir protest to be visible andaudible to delegates even if notas proximate as the protestorsmight have liked. Citing theU.S. Supreme Court’s holdingin Hill, the court concluded,“Appellants argue that theywere prevented from communi-cating with the WTO delegates

that might be used by violentdemonstrators at future events.In engaging in security prepara-tion and planning, any proactiverestrictions imposed on pro-test activity must be narrowlytailored to meet the anticipatedthreat and also must leave openadequate alternative means forexpression. In Service EmployeeInternational Union 660 v.City of Los Angeles, the courtconsidered–nearly a month inadvance of the event–proposedsecurity restrictions surroundingthe 2000 Democratic NationalConvention in Los Angeles.43

The Los Angeles police, inconjunction with the U.S. SecretService and other agencies, im-posed a very large secured zonethat encompassed the conven-tion facility and involved theclosing of several public streets.No protest activity would bepermitted within the securedzone. Outside the secured zone,a designated demonstrationzone was set up about 260 yardsfrom the entrance to the conven-tion facility, where a platform,a sound system, and portabletoilets were provided to facili-tate protest activity.44 In justify-ing the security and demonstra-tion zones, the government didnot suggest that the protestor’sspeech itself created a safetyissue. Rather, the governmentsought to safeguard againstrisks generally associated with1) the presence of prominentpeople at the event, 2) the fact

at close range, but there is noauthority suggesting that protes-tors have an absolute right toprotest at any time and at anyplace, or in any manner of theirchoosing.”42

While the WTO case con-cerned a reactive response toactual civil disorder, the gov-ernment interest in maintain-ing security and order can beadequately supported throughobservation and analysis of pastoccurrences to identify tactics

© Mark C. Ide

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...the restrictionsimposed were not

substantially broaderthan necessary toachieve the city’sinterest in public,participant, andoffi cer safety.

“”

that the convention was a realand symbolic target for terroristactivity, and 3) the fact that alarge media concentration couldencourage groups to becomeviolent to attract attention totheir causes.45

The court found that theproposed security zone wasnot narrowly tailored becauseit burdened more speech thanwas necessary.46 The principalproblem with the secured areawas its size—it covered approx-imately 185 acres of land—combined with its confi gurationthat prevented anyone with anymessage from getting withinseveral hundred feet of the en-trance to the venue where del-egates would arrive and depart.The court concluded that whilethere was no dispute that a nar-rowly tailored zone is constitu-tionally permissible to ensurethat delegates can enter and exitthe venue safely, the securedzone covered much more areathan necessary to serve thatinterest.47

The court also found thatthe demonstration zone wasnot an adequate alternative forspeech, rejecting, in part, thecity’s claim that there would bea sight line to the conventionfacility, concluding, instead,that the “distance ensure[d] thatonly those delegates with thesharpest of eyesight and mostacute hearing have any chanceof getting the message, that is,assuming that the ‘sight line’ is

not blocked during the conven-tion.”48 The court noted thatwhether a sight line existed atall was a “questionable assump-tion” because a 10,000-personmedia area would lie directlybetween the demonstrationzone and the convention centerentrance.49

In United for Peace andJustice v. City of New York, agroup opposing the war in Iraqapplied, 3 weeks in advance, fora permit to authorize a paradeof up to 10,000 people to march

however, did permit the march-ers to conduct a large stationarydemonstration confi ned to DagHammarkjold Plaza, where thedemonstrators had intended tobegin the parade.52

The U.S. District Courtupheld the denial of the permitdistinguishing the requestedevent from other large-scaleparades commonplace in NewYork City.53 Important to thecourt’s decision was testimonyfrom the police that detailed therather disorganized nature of theproposed march, with widelyvarying estimates of the numberof participants and no reliablecontact information regardingthe various participating organi-zations. According to the police,past approved parade permitstypically involved regularlyrecurring events where applica-tions were submitted well inadvance and contained specifi cdetails about the number of par-ticipants. Further, in approvedparades, there were opportuni-ties for meetings between thepolice and the organizers tojointly discuss issues, such asthe manner of protest, means offormation, and spacing of dem-onstrators along the route.

The district court found thatthe restrictions imposed werenot substantially broader thannecessary to achieve the city’sinterest in public, participant,and offi cer safety.54 The SecondCircuit Court of Appealsaffi rmed, fi nding that “short

in front of the United Nations(UN) headquarters in New YorkCity.50 The city refused to allowthe demonstrators to march infront of the UN as requestedbecause the police determinedthat they could not provideadequate security for the event,even though the road where themarch would take place wassix lanes wide and there wouldbe almost 40 feet between themarchers and the outer fenceprotecting the UN.51 The city,

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© Mark C. Ide

notice, lack of detail, adminis-trative convenience, and costsare always relevant consider-ations in the fact-specifi c inqui-ry required in all cases of thissort.”55 The court cautioned that“these factors are not talismanicjustifi cations for the denial ofparade permits” and “[l]ikewise,simply offering an alternative ofstationary demonstration doesnot end the analysis.”56

In Stauber v. City of NewYork, the court considered, interalia, a challenge to the NewYork City Police Department’spractice of using barricadesor “pens” to contain and con-trol demonstration activity.57

The pens, in this instance,were “metal interlocking bar-ricades…in which demonstra-tors were required [by police] toassemble” and from which theywere not permitted to leave,even to go to the bathroom.58

The court, fi nding that the penspolicy violated the First Amend-ment because it was not narrow-ly tailored, issued a preliminaryinjunction against “unreason-ably restricting access to andparticipation in demonstrationsthrough the use of pens.”59

Although the city had a legiti-mate interest in regulating thedemonstrators to prevent vio-lence, the court held that com-pletely enclosing demonstratorswithin the pens and preventingtheir movement was not a suffi -ciently narrowly tailored speechregulation.60

Stauber contained an exten-sive factual record concerninghow the pens actually were usedto essentially herd and very re-strictively confi ne persons whowanted to exercise their rightto protest throughout the dura-tion of the protest. It should benoted, however, with a differentfactual record before it, a courthas observed that a “barricadedenclosure for demonstrators…is a practical device used bythe police to protect thoseactively exercising their rightsfrom those who would preventits exercise,” such ascounterdemonstrators.61

Trade Center that were launchedfrom Boston’s Logan Airportand was designated as a nationalspecial security event, therebyplacing the Secret Servicedirectly in charge of security.63

The Boston Police Departmentacted in conjunction with theSecret Service to enforce twodifferent restrictive zones in thevicinity of the FleetCenter con-vention venue located in down-town Boston. A so-called “hardsecurity zone” encompassed anarea immediately surroundingthe FleetCenter, and a so-called“soft security zone” encom-passed certain public streetsadjacent to the hard zone. TheSecret Service restricted accesswithin the hard security zone toconvention business only andno protestors were permittedwithin that zone. The soft zonewas controlled by the city andremained open to the generalpublic, including demonstra-tors who were subject to certainpermit and crowd-control mea-sures.64 Among these was thecreation of a designated demon-stration zone, the major issue ofcontention in the case.65

The demonstration zonewas described by a U.S. DistrictCourt judge as follows based onan actual visit to the site:

The “designated demonstra-tion zone” [DZ] is locatedin the soft zone…[and] is aroughly rectangular spaceof approximately 26,000to 28,000 square feet–very

The legality of a demonstra-tion zone imposed at the 2004Democratic National Conven-tion was upheld by the U.S.Court of Appeals for the FirstCircuit in Bl(a)ck Tea Societyv. City of Boston.62 This eventwas the fi rst national politicalconvention to be held followingthe September 11, 2001, terror-ist attacks on New York’s World

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”

“ In justifyingthe security and

demonstration zones,the government

did not suggest thatthe protestor’s

speech itself createda safety issue.

approximately 300 feet by90 feet.… A written descrip-tion cannot begin to conveythe ambiance of the DZsite as experienced duringthe view. Most–at least twothirds of the DZ lies underunused Green Line tracks[elevated train tracks].… Itis a grim, mean, and oppres-sive space whose ominousroof is supported by a for-est of girders that obstructsight lines throughout asthe tracks slope downwardtowards the southern end.…The City is providing asound system and will al-locate access to the stageitself through a permittingsystem…. During the view,I observed that a person ofnormal height could not car-ry a sign underneath it with-out lowering it to head levelor lower. If that were done,no one on the other side ofthe girders would be ableto see it once it was raisedagain beneath the tracks.…The DZ is surrounded bytwo rows of concrete jerseybarriers. Atop each of thejersey barriers is an eightfoot high chain link fence. Atightly woven mesh fabric,designed to prevent liquidsand objects from beingthrown through the fence,covers the outer fence,limiting but not eliminatingvisibility. From the top ofthe outer fence to the traintracks overhead, at an angle

of approximately forty-fi vedegrees to horizontal is alooser mesh netting, de-signed to prevent objectsfrom being thrown at thedelegates.”66

Even though the districtcourt found that the overallimpression created by thedemonstration zone was “thatof an internment camp,” itconcluded that the design ofthe demonstration zone wasnarrowly tailored “given theconstraints of time, geography,

delegates will enter and leavethe FleetCenter.”68 As it hap-pened, this location includedsome unfortunate geographicand structural constraints, suchas the sight-obstructing girdersand low clearance presented bythe overhead tracks, that werenot susceptible to timely modifi -cation by the government.

With respect to thosefeatures that were subject tomodifi cation, such as the barri-ers, multiple layers of fencing,mesh, and netting, the court de-termined that each of these wereadequately supported, reason-able security precautions. Thecourt’s conclusion was based ontestimony from various law en-forcement personnel’s past ex-perience at comparable events,including the 2000 DemocraticNational Convention in LosAngeles.

The double fence is reason-able in light of past experi-ence in which demonstratorshave pushed over a singlefence. A second fence mayprevent this altogether, orat least give police offi cersmore time to respond andprotect the delegates. Theliquid dispersion fabric isreasonable in light of pastexperience in which dem-onstrators have squirted liq-uids such as bleach or urineat delegates or police. Theoverhead netting is reason-able in light of past experi-ence in which demonstratorshave thrown objects over

and safety.”67 In reaching thisconclusion, the court noted thatthe demonstration zone wasplaced at a location suggestedby the American Civil Liber-ties Union and the NationalLawyers Guild, counsel forthe groups that challenged therestrictions, and was the onlyavailable location providing a“direct interface between dem-onstrators and the area where

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© Mark C. Ide

fences. The razor wire atopthe Green Line tracks…isreasonable in light of thepossibility of demonstratorsclimbing upon the tracksand using them as an ac-cess point to breach the hardzone perimeter and/or rainobjects on delegates, media,or law enforcement person-nel from above.69

In short, given the uniquecircumstances presented, therewas “no way to ‘tweak’ the DZto improve the plaintiffs’ freespeech opportunities withoutincreasing a safety hazard.”70

On appeal, the First Cir-cuit affi rmed the decision ofthe district court. While notingthat the security measures atthe convention “dramaticallylimited the possibilities forcommunicative intercourse be-tween the demonstrators and thedelegates...[and] imposed a sub-stantial burden on free expres-sion,” the court found that pastexperiences with large demon-strations created a “quantum of‘threat’ evidence...suffi cient toallow the trier to weigh it in thebalance.”71 The court indicatedthat the question was not wheth-er the government can makeuse of past experience to justifysecurity measures–it most as-suredly can–but the degree towhich inferences drawn frompast experiences are plausible.

While a government agencycharged with public safetyresponsibilities ought notto turn a blind eye to past

experience, it likewise oughtnot to impose harsh burdenson the basis of isolated pastevents. And, in striking thisbalance, trial courts shouldremember that heavierburdens on speech must,in general, be justifi ed bymore cogent evidentiarypredicates.72

The court said that unfound-ed speculation about potentialviolence cannot justify aninsuffi ciently tailored restrictionon expression. On the other

to delegates at the 2004 Demo-cratic National Convention.Nevertheless, while not requir-ing a showing of event-specifi cintelligence, the court found thelack of specifi c information inthe record about a risk ofviolence specifi c to the event“troubling in light of the par-ticularly stringent restrictionsthat were imposed.”73

The court also found thatviable alternative means ex-isted to enable protestors tocommunicate their messages.The demonstration zone didprovide an opportunity forexpression within the sight andsound of the delegates, “albeitan imperfect one.” Two otherconsiderations were deemed tobe pertinent to the analysis andwere described as follows:

First, although the op-portunity to interact directlywith the body of delegatesby, say, moving among themand distributing literature,would doubtless have fa-cilitated the demonstrator’sability to reach their intendedaudience, there is no con-stitutional requirement thatdemonstrators be granted thatsort of particularized access.Second, we think that theappellants’ argument greatlyunderestimates the nature ofmodern communications. Ata high profi le event, such asthe convention, messagesexpressed beyond the fi rst-hand sight and sound of thedelegates nonetheless has

hand, law enforcement offi cialsmay draw upon experiences ofother cities or entities that havehosted comparable events whenassessing the type of securitymeasures necessary to policean upcoming event. The real-ity that some demonstratorsat other recent large politicalevents had engaged in acts,such as pushing over fences andthrowing objects over barri-cades, was deemed to be clearlyrelevant to the safety risk posed

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...unfoundedspeculation aboutpotential violencecannot justify an

insufficiently tailoredrestriction onexpression.

”“

the propensity to reach thedelegates through television,radio, the press, the Internetand other outlets.74

Thus, on balance, the impor-tance of providing demonstra-tors with some measure ofphysical connection to an eventvenue, such as relatively proxi-mate line-of-sight access, maybe lessened where there areother available outlets for effec-tive communication.

Conclusion

It has been said that “thegreater the importance of safe-guarding the community fromincitements to the overthrowof institutions by force andviolence, the more imperativeis the need to preserve invio-late the constitutional rights offree speech, free press and freeassembly in order to maintainthe opportunity for politicaldiscussion, to the end that thatgovernment may be responsiveto the will of the people andthat changes, if desired, may beobtained by peaceful means.”75

Freedom of expression, espe-cially the expression of politi-cal views, ranks near the top ofthe hierarchy of constitutionalrights.76 Despite the importanceof that right, the protectionsof the First Amendment arenot without limits. Reason-able restrictions as to the time,place, and manner of speech ina public forum are permissibleprovided those restrictions arejustifi ed without reference to

content, are narrowly tailored toserve a signifi cant governmentinterest, and leave open amplealternative channels for com-munication of the protestors’message.

No one can seriously dis-pute that the government hasa signifi cant interest in main-taining public order; indeed,this is a core duty that thegovernment owes its citizens.Security measures may inevi-tably require the imposition ofrestrictions on large numbers

geographic, logistical, andsecurity challenges posed by anactual event, a safety net is casttoo broadly if it restricts protestactivity unduly in too large ofan area and, thus, is not nar-rowly tailored. However, courtsgenerally will not strike downgovernment action for failure toleave open ample channels ofcommunication unless the gov-ernment action will foreclosean entire medium of publicexpression across the landscapeof a particular community orsetting. A time, place, or mannerrestriction does not violate theFirst Amendment simply be-cause there is some imaginablealternative that might have beenless burdensome on speech.The U.S. Supreme Court hasinstructed that the First Amend-ment does not require that indi-viduals retain the most effectivemeans of communication, onlythat individuals retain the abilityto communicate effectively.78

Endnotes1 Quotation retrieved from http://www.

tocqueville.org.2 See, e.g. 18 U.S.C.A. §2331(1)(B)

(iii); 18 U.S.C. § 2332b(f), (g). Annex II

of National Security Presidential Direc-

tive (NSPD) 46 and Homeland Security

Presidential Directive (HSPD) 15 desig-

nate the FBI as the lead federal agency for

counterterrorism.3 The First Amendment to the U.S.

Constitution provides “Congress shall

make no law respecting an establish-

ment of religion, or prohibiting the free

exercise thereof; or abridging the freedom

of speech, or of the press, or the right of

the people peaceably to assemble, and to

petition the Government for a redress of

of peaceful protestors to effec-tively address the threat posedby a violent few among them.Courts have recognized thisinherent dilemma and that thepublic interest cuts both ways.Freedom of expression is vitalto the health of democracy butmaking public safety a realityand ensuring that important po-litical and social events are ableto proceed normally also arevaluable.77 While a case-by-casedetermination must be madein consideration of the unique

59041x.indd 3059041x.indd 30 4/12/2007 11:51:32 AM4/12/2007 11:51:32 AM

May 2007 / 31

grievances.” The question of whether state

action deprives a person of the “liberty

of expression” guaranteed by the First

Amendment is analyzed under the Due

Process Clause of the Fourteenth Amend-

ment. See, e.g. Gitlow v. New York, 268

U.S. 652 (1925).4 Shuttlesworth v. City of Birmingham,

394 U.S. 147, 152 (1969) (describing the

privilege of citizens to assemble, parade,

and discuss public questions in streets and

parks while striking down a parade ordi-

nance that gave the government complete

discretion to prohibit any “‘parade,’ ‘pro-

cession’ or ‘demonstration’ on the city’s

streets or public ways”). 5 The three types of forums on govern-

ment property are 1) traditional public

forum (e.g., streets, sidewalks, and parks);

2) designated or limited public forums

(e.g., state university meeting facility,

municipal theater, school board meeting

rooms, or other place opened to the public

as a place for certain forms of expres-

sive activity); 3) nonpublic forums (e.g.,

government offi ces, jailhouses, military

bases, polling places, or other place oper-

ated by the government as a proprietor

and not made accessible to the public for

expressive activity). See International

Society for Krishna Consciousness v. Lee,

505 U.S. 672, 678 (1992) (Holding that

an airport concourse was not a public

forum, “The government need not permit

all forms of speech on property that its

owns or controls. Where the govern-

ment is acting as proprietor, managing its

internal operations, rather than acting as

a lawmaker with the power to regulate or

license, its actions will not be subject to

the heightened review to which its actions

as lawmaker may be subject.”).6 See Cox v. New Hampshire, 312

U.S. 569, 576 (1941) (“If a municipal-

ity has authority to control the use of its

public streets for parades or processions,

as it undoubtedly has, it cannot be denied

authority to give consideration, without

unfair discrimination to time, place and

manner, in relation to other proper uses of

the streets.”).7 Niemotko v. Maryland, 340 U.S. 268,

273 (1952) (J. Frankfurter, concurring).

8 The U.S. Supreme Court found that

picketing and marching in public were

protected as free speech in Thornhill v.

Alabama, 310 U.S. 88 (1940). In subse-

quent rulings, the Court established that

regulations affecting time, place, and man-

ner of demonstrations were lawful but that

government discrimination based on the

content or viewpoint of speech was pro-

hibited by the First Amendment. See, e.g.,

Edwards v. South Carolina, 372 U.S. 229,

237 (1963) (“The Fourteenth Amendment

does not permit a State to make criminal

the peaceful expression of unpopular

views.”); Cox v. Louisiana, 379 U.S. 559,

563 (1965) (“The conduct which is the

subject of this statute–picketing and parad-

ing–is subject to regulation even though

intertwined with expression and associa-

tion.”); Adderly v. Florida, 385 U.S. 39,

48 (1966) (Persons who want to “propa-

gandize protests or views” do not have “a

constitutional right to do so whenever and

however, and wherever they please.”).9 See, e.g. U.S. v. Grace, 461 U.S. 171,

177 (1983) (“It is also true that ‘public

places’ historically associated with the free

exercise of expressive activities, such as

streets, sidewalks, and parks, are consid-

ered, without more, to be ‘public forums.’

In such places, the government’s ability

to permissibly restrict expressive con-

duct is very limited: the government may

enforce reasonable time, place and manner

regulations….”) (emphasis added, internal

citations omitted).10 See, e.g., Tinker v. Des Moines

Independent School District, 393 U.S. 503,

508 (1969).11 See Cox v. Louisiana, 379 U.S. at

563.12 Cox v. New Hampshire, 312 U.S. at

574 (“Civil liberties, as guaranteed by the

Constitution, imply the existence of an

organized society maintaining public order

without which liberty itself would be lost

in the excesses of unconstrained abuses.

The authority of a municipality to impose

regulations in order to assure the safety

and convenience of the people in the use of

public highways has never been regarded

as inconsistent with civil liberties but

rather as one of the means of safeguarding

the good order upon which they ultimately

depend. The control of travel on the streets

of cities is the most familiar illustration of

this recognition of social need.”).13 This example retrieved from http://

www.fi rstamendmentcenter.org.14 See Forsythe County, Ga. v. Nation-

alist Movement, 505 U.S. 123 (1992) (A

county ordinance permitting a government

administrator to vary the fee for assem-

bling or parading to refl ect the estimated

cost of maintaining public order was

facially unconstitutional due to the absence

of narrowly drawn, reasonable, and defi -

nite standards to guide the fee determina-

tion and because it required the administra-

tor to examine the content of messages to

estimate the public response and cost of

public service necessitated by the parade

or assembly.).15 The use of designated demonstration

zones or security zones in which no protest

activity is permitted has been the subject

of substantial commentary suggesting that

the practice should be viewed as a form

of content discrimination or as a “prior

restraint” on speech. Courts have generally

not been receptive to that suggested inter-

pretation. See, e.g., “Capturing the Dia-

logue: Free Speech Zones and the ‘Caging’

of First Amendment Rights,” 54 Drake

L. Rev. 99 (2006); “Speech and Spatial

Tactics,” 84 Tex. L. Rev. 581 (2006).16 The “prior restraints” doctrine

encompasses a wide range of activity

but is chiefl y concerned with govern-

ment suppression of speech by enjoining

publication. See, e.g., “Prior Restraints,”

883 PLI/Pat 7 (November 2006) (contains

a comprehensive digest of cases on the

topic).17 New York Times Co. v. U.S., 403 U.S.

713, 714 (1971) (internal quotations and

citations omitted); See Madsen v. Women’s

Health Center, Inc., 512 U.S. 753, 764, FN

2. (1994) (“Not all injunctions that may in-

cidentally affect expression, however, are

‘prior restraints’…. Here petitioners are

not prevented from expressing their mes-

sage in any one of several ways…more-

over, the injunction was not issued because

of the content of petitioner’s expres-

sion….”); Schenck v. Pro-Choice Network

59041x.indd 3159041x.indd 31 4/12/2007 11:51:39 AM4/12/2007 11:51:39 AM

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.


of Western N.Y., 519 U.S. 357, 374, FN 6.

(1997) (“As in Madsen, alternative chan-

nels of communication were left open to

the protestors….”).18 See “Balancing the Right to Protest in

the Aftermath of September 11,” 40 Harv.

C.R.-C.L. Rev. 327, 330 (2005).19 Id.20 See Ward v. Rock Against Racism,

491 U.S. 781, 791 (1989) (“[T]he govern-

ment may impose reasonable restrictions

on the time, place, or manner of protected

speech, provided the restrictions are justi-

fi ed without reference to the content of the

regulated speech.…”).21 Id.22 City of Renton v. Playtime Theaters,

Inc., 475 U.S. 41, 48-49 (1986) (internal

quotation marks and citation omitted). 23 City of Los Angeles v. Alameda

Books, Inc., 535 U.S. 425, 448 (2002)

(J. Kennedy, concurring).24 See Ward, 491 U.S. at 799-800. Clark

v. Cmty. for Creative Non-Violence, 468

U.S. 288, 293 (1984). Frisby v. Schultz,

487 U.S. 474, 481 (1988).25 Coalition to Protest the Democratic

Nat’l Conv. v. Boston, 327 F. Supp. 2d 61,

70 (D. Mass. 2004) (quoting Ward, 491

U.S. at 800).26 530 U.S. 703 (2000).27 Id. at 707.28 Id. at 719-720.29 Id. at 734.30 Id. 31 Coalition to Protest, 327 F. Supp. 2d

at 77.32 The case law refl ects that crowd-con-

trol measures intended to control protest

activity have involved various forms and

degrees of restriction deemed necessary

by government offi cials to accommodate

the safety and security requirements posed

by the unique physical environments of

specifi c venues. At least one commentator,

who has expressed concern that dem-

onstration zones can be used to impose

content or viewpoint censorship, described

such activity as the use of “spatial tactics.”

See “Speech and Spatial Tactics,” 84 Tex.

L. Rev. 581 (2006).33 The FBI defi nes a special event as

a “signifi cant domestic or international

event, occurrence, circumstance, contest,

activity, or meeting which by virtue of its

profi le and/or status represents an attrac-

tive target for a terrorist attack.” Manual

of Investigative Operations and Guide-

lines (MIOG) 300-1(2). This defi nition

is not limited to threats of international

terrorism, but, rather, includes threats

posed by domestic anarchist groups

whose members may commit violent acts

at demonstrations. See A Review of the

FBI’s Investigative Activities Concerning

Potential Protestors at the Democratic and

Republican National Political Conven-

tions, U.S. Department of Justice, Offi ce

of the Inspector General, (April 27, 2006),

10. In addition to the FBI’s responsibilities

concerning special events, the U.S. Secret

Service is statutorily authorized to provide

security to protected offi cials at national

special security events designated by the

secretary of the Department of Homeland

Security. See 18 U.S.C. 3056(e)(1).34 See Menotti v. City of Seattle, 409

F.3d 1113 (9th Cir. 2005).35 Id. at 1125.36 Id. at 1129.37 Id. 38 Id. at 1131-1132.39 Id. at 1131.40 Id. at 1131, FN41.41 Id. at 1138.42 Id. at 1138-1139.43 114 F. Supp. 2d 966 (C.D. Cal.

2000).44 Id. at 966. 45 Id. at 971, FN2.46 Id. at 971.47 Id. at 971.48 Id. at 972.49 Id. 50 243 F.Supp. 2d. 19 (S.D. N. Y. 2003).51 Id. at 24 (Since the terrorist attacks

at the World Trade Center on September

11, 2001, the city had banned all demon-

strations, parades, or other public events

in front of the United Nations and U.S.

Mission. The court applied the narrowly

tailored test to this total ban in light of the

security concerns posed by the requested

march.).52 Id. at 20.53 Id. at 25-28.

54 Id. at 20-31.55 323 F.3d 175, 178 (2nd Cir. 2003).56 Id.57 2004 WL 1593870 (S.D.N.Y. 2004).58 Id. at 28.59 Id. at 2,6,34.60 Id. at 29.61 Oliveri v. Ward, 801 F.2d 602, 607

(2nd Cir. 1986).62 378 F.3d 8 (1st Cir. 2004).63 A comprehensive statement of the

facts surrounding this litigation is con-

tained in the district court opinion. See

Coalition to Protest, 327 F. Supp. 2d 61

(D. Mass. 2004).64 Id. at 71-72 (The court noted that the

city provided “nuanced, reticulated options

for many different types of expression

within the soft zone…. Inside it, plaintiffs

may conduct small demonstrations with

no permits whatsoever, and may conduct

21-50 person stationary demonstrations on

an expedited permitting basis. Anyone may

distribute leafl ets or hold signs.”).65 Id. at 66-67.66 Id.67 Id. at 74-75. 68 Id. at 75.69 Id. 70 Id at 76. 71 378 F.3d. at 13-14. 72 Id. at 14.73 Id. at 17 (Lipez, Circuit Judge,

concurring).74 Id. at 14. 75 De Jonge v. Oregon, 299 U.S. 353,

365 (1937).76 See 378 F.3d. at 11-12. 77 Id. at 15.78 409 F.3d at 1138, FN 48 (citing City

Council v. Taxpayers for Vincent, 466 U.S.

789, 812 (1984)).

59041x.indd 3259041x.indd 32 4/12/2007 11:51:47 AM4/12/2007 11:51:47 AM

The Bulletin Notes

Law enforcement officers are challenged daily in the performance of their duties; they face eachchallenge freely and unselfishly while answering the call to duty. In certain instances, their actionswarrant special attention from their respective departments. The Bulletin also wants to recognizethose situations that transcend the normal rigors of the law enforcement profession.

One afternoon, mounted patrol Offi cers Sal Mazzaand Tim Pasley of the Tampa, Florida, Police Depart-ment noticed a large cloud of smoke in the distance anddecided to investigate. Once at the scene, they founda burning building with citizens frantically trying tohelp a man escape from a second-fl oor apartment. Im-mediately, Offi cers Mazza and Pasley rushed into thebuilding, kicked in the locked door, crawled throughthe thick smoke, and located the victim. Offi cer Mazzaattempted to pull the man out, but the victim got caughton something in the doorway. Working together, both of-

fi cers freed him and carried the unconscious resident to safety, just before the apartment went upin fl ames. Once outside, the offi cers checked his vital signs and found no pulse. Offi cer Pasleyquickly started chest compressions; moments later, the man began breathing.

Officer Mazza Officer Pasley

One afternoon at a high school, a group of teenag-ers were eating lunch on an outdoor patio overlook-ing the student parking lot. Approximately 75 yardsaway, a suspect stopped his vehicle, got out, and tossedhomemade smoke bombs that detonated in the parkinglot. He then produced a semiautomatic 9-millimeterrifl e and began fi ring toward the patio. Deputy Lon-don Ivey, serving as the school resource offi cer, andoff-duty Reserve Deputy Russell Leblanc, both of theOrange County, North Carolina, Sheriff’s Offi ce, heardthe shots and saw students running from the patio.

After observing the shooter in the parking lot, both men moved toward him, crossing approxi-mately 75 yards of open ground with no cover. Deputy Ivey, drawing his weapon, approachedthe shooter and demanded that he drop his gun. The suspect’s rifl e jammed, and he complied.Deputy Ivey further ordered the shooter to lie face down on the ground with his arms and legsspread. Deputy Leblanc then cuffed and secured the suspect. After taking him into custody, thedeputies discovered that he also had a sawed-off 12-gauge shotgun, a large quantity of ammuni-tion, and several homemade explosive devices. Later, other offi cers responding to the suspect’shome found the body of his father, the victim of gunshots, with additional explosive devicessurrounding him and strewn throughout the house.

Deputy Ivey Deputy Leblanc

59041.indd 3759041.indd 37 3/24/2007 2:44:53 AM3/24/2007 2:44:53 AM

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