Local computer security expert investigates police practices An 'urban golf' outing raises civil liberties questions

Eric Rachner sits in the back of a police car the night he was arrested for obstructing an officer. This image is taken from video footage recorded by a camera inside the vehicle -- footage that Seattle police long maintained had been erased. less Eric Rachner sits in the back of a police car the night he was arrested for obstructing an officer. This image is taken from video footage recorded by a camera inside the vehicle -- footage that Seattle police ... more Photo: Seattle Police Department Photo: Seattle Police Department Image 1 of / 3 Caption Close Local computer security expert investigates police practices 1 / 3 Back to Gallery

A drunken street golf game with foam balls has led to a serious civil rights issue, pitting computer geeks against police practices.

Eric Rachner, a Seattle cyber security expert and one of the golf players, wasn't satisfied when the city dismissed charges against him after a possibly illegal arrest for refusing to provide identification.

Rachner discovered through sleuthing that police had withheld video-recorded evidence in his case.

Rachner also hired Seattle attorney Cleveland Stockmeyer to look at his case and probably others where arrests might have been illegal or where police claimed to have destroyed valuable arrest videos that weren't, in fact, erased.

"How many people are sitting in jail who asked for their tapes and were told no, they can't have them," says Stockmeyer. "I don't know. But I tell you we're going to freaking find out."

On a Saturday night in October 2008, Rachner was one of a sizeable group of "urban golfers" who were whacking the faux ball from bar to bar on city sidewalks, alleys and parking lots, imbibing more than keeping score.

Near the last "hole" a sliced shot hit a 22-year-old passerby in the face. The 1 ½-inch foam ball caused no harm other than a sting, but when the golfers laughed at and "heckled" the victim he called 9-1-1, the police report said. Seattle police responded in force.

While their colleagues would soon be investigating a shooting across town, the East Precinct sent four officers to spend an hour rounding up golfers.

"Twenty to thirty people are detained over a Styrofoam ball?" said Dan Kaminsky, an internationally famous Internet security expert himself, who was not arrested, but was among those detained for questioning. "This is ridiculous."

Rachner was wearing a faded t-shirt, jeans and leather jacket, and didn't remotely resemble the guy who misfired the ball, who wore English golfing duds, a Tattersall's hat and fake orange sideburns.

Confronted by officer Michele Letizia, Rachner politely declined to state his name. He also indicated where he kept his wallet with ID. The policeman removed the wallet from Rachner's pocket, but both men declined to open it. The officer expressed fear he could be accused of stealing cash.

Letizia threatened to arrest the 32-year-old Capitol Hill reveler for obstruction if he didn't provide his name as others had. The cop told Rachner that booking on a Saturday night could mean cell time until Monday. Rachner remained mum. Letizia arrested him, based on the refusal to provide ID, according to arrest and court documents.

With those facts, the arrest appears to have been illegal based on a 1982 Washington Supreme Court ruling, though a 2004 U.S. Supreme Court case makes the situation less clear-cut.

Custody for Rachner lasted two hours, not days, but a charge was leveled against him in Seattle Municipal Court for obstructing a public officer. Controversial laws known as obstruction, "stop and frisk" and "stop and identify" statutes have been abused in other cities like New York, studies and news stories show. An obstruction case cited in a 2008 Seattle Post-Intelligencer investigation ended with a federal jury hitting Seattle police with a six-figure penalty.

Rachner's criminal defense attorney sought dismissal of his gross misdemeanor charge, citing the Washington State Supreme Court decision that says arresting a person for nothing more than withholding identification is unconstitutional. One reason cited by the court: This practice allows police too much discretion to pick targets and punish with arrest. Also, the state constitution is more protective of these rights than the U.S. constitution.

But then-city attorney Tom Carr's office kept the prosecution going for half a year. William Ross, the former assistant city attorney who handled part of the case, acknowledged that it is illegal to arrest someone for nothing more than failure to give ID, but declined to discuss case details other than to say the office didn't abuse its authority.

When the arresting officer was asked recently in an interview whether the ID issue was the only reason he took Rachner into custody, he said "no". But he declined to address why his arrest reported cited ID as the only reason, and refused further comment.

Inconsistent memories are why every Seattle officer has a video camera in the squad car and a microphone on their uniform. Expanding in use nationally, they provide an unblinking witness and are automatically activated when the patrol car's flashing lights are turned on. Cops are often more protected than citizens by these videos, but are the police willing to produce the recordings when they might be in the wrong?

Rachner repeatedly tested that question, asking for the video and audio recordings of that night's arrest as part of pre-trial discovery and, separately, in requests under state public disclosure law. That part of the discovery request wasn't fulfilled and the SPD denied the first disclosure request because the criminal charge was pending, records show.

On the day last May when the city attorney dropped the charges because of unexplained "proof" problems -- nearly six months and more than $3,500 in defendant legal expenses after the incident -- Rachner filed another disclosure request for the recordings.

The department responded: "These recordings are both past our retention period and can no longer be obtained. Please note that the majority of 911 calls and videos are retained for a period of ninety (90) days."

"They just flat out said they didn't have it," said Rachner.

Police were wrong. The recordings weren't destroyed and Rachner -- just starting the next round in his fight -- was the kind of person to discover that.

Reared in Woodinville, self-taught in computers, Rachner, like Kaminsky, is highly skilled in probing cyber systems to protect them against hackers. Once part of a Seattle team that won a legal international hacking contest three years in a row, he is among a very elite group who customers worldwide trust to penetrate their systems.

Rachner didn't hack the police computers, but with attorney Stockmeyer's advice he spent several late nights starting in October poring line-by-line over technical aspects of the video and audio recording system. He examined the Houston-area manufacturer's contracts, specifications and procedures.

Why bother? With charges dropped, Rachner says a major incentive now is protecting his trust-sensitive career in which he is "frequently subject to background checks."

"In this business, even having an accusation on your record has concrete financial implications," said Kaminsky, who became internationally famous in 2008 when he discovered a security hole in the Internet -- the entire Internet -- and helped computer companies worldwide fix it.

Rachner hit pay dirt when a procurement contract and system specs revealed that a computerized log is kept permanently on every video and audio recording, showing when anyone uploads it, flags it for retention, plays it, copies it or deletes it.

He also discovered recordings aren't regularly destroyed every 90 days, but are kept for a variety of reasons. While they can be destroyed after three months, that erasure isn't mandated.

In late November, Rachner filed a public disclosure request for the log of his video and audio recordings. His luck changed. He got the log in early January showing the videos had been flagged for retention after the arrest, viewed and kept. He also received a copy of the first video and audio recording. The second recording arrived in early March while a reporter was talking to him on the phone. No explanation was provided for the earlier SPD claim the tapes could not be obtained.

"The explanation is our servers failed," said Seattle Police spokesman Sgt. Sean Whitcomb. "Data was lost, more than his, and it took some time to recover it."

"There is absolutely nothing in the activity log to support that claim," said Rachner. "Moreover, if the video was unavailable, it was dishonest of them to claim the video could no longer be obtained because it was past the 90-day retention period. It is completely at odds with what they told me in writing."

The descriptions of the incident in this story are based on the tapes, police reports, city attorney records and interviews. The microphone picks up Letizia explaining the arrest to Rachner and a police sergeant, citing only the failure to provide identification as the reason Rachner was in handcuffs. No other provocations before the arrest were documented.

Letizia is also heard on the mike starting to tell Rachner that in obstruction situations in the city "we kind of coddle to". He didn't finish the sentence.

The log also revealed that SPD's Office of Professional Accountability viewed the tapes before April 2009 when it exonerated Letizia in an internal investigation spurred by a Rachner complaint shortly after the incident. Capt. Tag Gleason of OPA told Rachner in a letter: "The evidence in the case does not support your perspective of the event and does support the response of the officers to your conduct."

"Why wasn't this an abuse of authority?" asked Rachner.

Whitcomb said he can't comment on a non-sustained internal investigation, or on the underlying incident.

Rachner and his attorney Stockmeyer are investigating circumstances in other cases similar to his. In response to a question about their efforts, current Seattle City Attorney Peter Holmes said his office is willing to examine specific cases where new evidence indicates videos were withheld or arrests were unlawful.

A highly-controversial criminal prosecution against Seattle artist Maikoiyo Alley-Barnes was dismissed in 2005 because the police failed to turn over video and audio from his arrest until three days into the trial. On the audio recording, Alley-Barnes pleads for police to stop kicking him. He later received a $185,000 settlement from SPD after he filed a federal civil-rights lawsuit.

Several lawyers, including prominent Seattle civil rights attorney Lembhard Howell, said they were completely unaware of the video logs, and glad to be informed since they've been denied police videos based on the 90-day excuse. "Now I know what to ask for," said Howell.

Among other ID-refusal obstruction arrests Rachner uncovered were the "bizarre" ordeals of Howard Mulvihill Jr., 26, and his mother Beverly Mulvihill, 61. They spent two nights and one night in custody, respectively, after their September 2008 arrests, records show. The city attorney quickly dismissed both charges.

Police were suspicious because the pair lingered more than an hour in a car watching a movie in a downtown fast food restaurant parking lot, the arrest report said. Mulvihill Jr. said he was waiting that night to report for dock work.

After the man refused to give his identification, officers grabbed him, injured his head and Tased him while the mother objected, the report said. Internal investigations sustained a complaint against one officer, said a March 2009 SPD letter. He received additional training, Whitcomb said.

"At least we know it is supposed to be against the law for them to arrest us for that," said the mother.

Rachner said he was aware of his rights and of Washington case law when he was arrested. He said he is "an amateur civil rights buff", and that's why he stuck to his ID refusal.

Another urban golfer arrested that night for walking away and not identifying himself did eight hours of community service to get his charges dismissed.

The sponge ball victim Gabriel Scott Clark, then a Seattle coffee house worker and now living in Miami, said he was surprised by the multiple arrests: "I didn't think it would be that big of an issue. I was just mad at the one guy."

The cops that night arrested the wrong golfer for the sponge ball assault.

Marcus Johnson of Los Angeles apologetically admitted in an interview that he sliced the ball that hit the victim. Police never detained or identified him, but he and others said Johnson was "in the thick of things" when police arrived.

Arrested instead, based on victim identification, was security researcher and computer cryptologist David Hulton of Seattle. The city attorney dropped the misdemeanor assault charge, but only after Hulton spent $2,500 on a lawyer. Hulton has joined Rachner in his project, helping to pay for attorney Stockmeyer's expenses, because he said, "I want to effect change."