Document Shows "Undercover" Police Gathered Information on May Day Protesters. Will They Do It Again This Year?

Some Seattle police won't be in uniform at today's May Day protests. They'll be "undercover" or in "plainclothes," depending on your preferred terminology. Ansel Herz

Here's a riddle. On Monday, the Seattle Police Department, through longtime spokesperson Detective Sean Whitcomb, said it has not used undercover police officers during past May Day protests.

But the department's Incident Action Plan for May Day in 2012 identifies multiple squads of "undercover" officers to be deployed in the protests.

On page 16, the plan reads: "Undercover officers will have the primary duty of information gathering, while plainclothes officers are responsible to ensure the safety of undercover officers while they are in the field."

It instructs officers that "undercover and plainclothes" police "may be working within the crowd."

Who's right?

Before delving into Whitcomb's convoluted explanation for the discrepancy, it's worth reviewing why this question is so important.

For one thing, the presence of undercover and/or plainclothes officers among protesters—particularly in light of law enforcement's history of infiltrating social movements—often leads them to accuse one another of being cops, and to confrontations. Sometimes the accusations turn out to be correct. In December, in Oakland, a plainclothes officer was photographed whipping out a gun and pointing it at Black Lives Matter protesters, after they'd accused him and another police officer of being cops.

Now let's say that later today, as part of one of the many May Day protests, you're out calling attention to police brutality or America's oligarchic economy. How do you know the person next to you isn't a Seattle police officer? If that guy is a cop, who's making sure he isn't surreptitiously gathering information on people exercising their free speech rights rather than committing any crime? Who's making sure police aren't subtly intimidating activists, or sowing distrust among them?

Enter Seattle's police intelligence ordinance, created in 1979 to put a stop to exactly those kinds of abuses—undercover cops infiltrating protest groups, cops spying on activists without good cause. Thirty-six years after its creation, there are important questions about whether the ordinance is being meaningfully enforced anymore. After my reporting during last fall's Black Lives Matter protests raised questions about whether the Seattle police intelligence auditor—a position created by the ordinance—was actually doing his job, city leaders began looking at ways to strengthen the old law. (The current auditor was supposed to have resigned, or been reappointed, in 2008, but officials evidently forgot that he existed. He's still there.)

One of the incidents that gave rise to this reappraisal of the intelligence ordinance: a nonviolent Black Lives Matter protest at U-Village mall, during which movement leaders believed they were being followed and having their photos taken by undercover police officers. Days later, I saw a photographer from the SPD snap pictures of peaceful demonstrators in downtown Seattle. This was an apparent violation of the department's policy, which derives from the 1979 intelligence ordinance.

You wouldn't have known it, but last December, this guy taking photographs of protesters was actually a cop. Ansel Herz

That ordinance was created to protect political dissidents from police spying. Last fall, after the incidents described above came to light, it became unclear whether David Boerner, the volunteer intelligence auditor in charge of watchdogging police spying, was actually auditing the SPD or largely trusting the police to police themselves.

Staffers from city council member Bruce Harrell's office say The Stranger's reporting on the intelligence ordinance prompted plans for reforms, including picking a new auditor. "The approach is to have the new ordinance adopted by council before the process of selecting a new auditor," Harrell's office said in a statement last week. Harrell chairs the council's Public Safety Committee, and he plans to introduce new legislation related to the old intelligence ordinance in mid-May.

The ordinance will be updated to reflect today's police technology, provide funding for the intelligence auditor position, and make the auditor report to the City Auditor or Office of Professional Accountability auditor instead of the chief of police, the statement indicates.

Assuming it all happens as Harrell hopes, it'll be an important step. But for now, back to that question about undercover police and May Day.

The SPD's Whitcomb believes that his own police department—both internally in its own incident plan for May Day 2012, and externally on its own website—is using the word "undercover" when it should be using the word "plainclothes," i.e., wearing civilian clothes.

"It uses an unnecessary label," Whitcomb said. "An undercover person is someone who is assuming a false identity to infiltrate... and become an active participant in that group's activities."

He said undercover work is done in criminal investigations, but it hasn't been done during May Day or in political demonstrations.

"We do have plainclothes officers," Whitcomb explained. "People who aren't identifiable as police, who are there for the sole purpose of identifying criminal activity when it happens."

If you ask one of these people if he or she is a police officer, Whitcomb said, whether they're honest with you will depend on the individual officer's choices and the circumstances.