Finding that Tacoma Police Department (TPD) deliberately withheld public records on its use of an invasive cell phone surveillance device, a judge in Pierce County ordered the City of Tacoma to pay fines, costs and fees in an amount she said is “necessary to deter future misconduct.” The ruling came in a lawsuit seeking public records about the device.
“This is a win for everyone in Washington who believes police must be accountable to the people they serve,” said Elder Toney Montgomery, one of the plaintiffs in the suit. “For people in communities of color especially, police surveillance is a critical issue – our communities have long been disproportionately targeted for surveillance. Today’s decision shows Tacoma must respect our right to know what kinds of surveillance our public servants are doing and for what purpose.”
The lawsuit, Banks v. City of Tacoma, has important implications for government transparency and the privacy rights of people in Washington. It was filed by the ACLU-WA on behalf of African-American community leaders who sought public records related to the Tacoma Police Department’s use of a surveillance device known as a “cell site simulator.” Plaintiffs are concerned about the effect of police surveillance in the community, particularly on young people.
Also known as “StingRays,” cell site simulators mimic cell phone towers in order to get all nearby cellular devices to connect with them. Once connected, the cell site simulator is able to lead law enforcement to the cell phone they are looking for. But due to the indiscriminate nature of how it operates, the cell site simulator also can temporarily disable all nearby phones and can be set up to capture sensitive personal information from phones belonging to anyone who happens to be nearby.
In the decision, Pierce County Superior Court Judge G. Helen Whitener called the City of Tacoma’s responses to plaintiffs’ public records requests about the cell site simulator “troubling in many regards” and found it “showed a lack of proper training and/or supervision, negligence, and unreasonableness in any explanations given for noncompliance.”
The court ruled in April that the City of Tacoma violated the state’s Public Records Act (PRA) by failing to conduct an adequate search for public records and by failing to provide and delaying the provision of 11 documents that should have been made public.
Tacoma’s use of its cell site simulator became a subject of public controversy in 2014, when it was reported that local judges had not been told that the devices were being used since 2008, how the devices work, or that they collect information of people not suspected of criminal activity. TPD had for years hidden its use of this surveillance equipment from the public and from the courts. TPD was also using the cell site simulator on behalf of neighboring cities and counties, without the public’s knowledge. One TPD detective stated under oath that officers continue to intentionally omit any mention of cell site simulators in their case reports to prevent disclosure to the public.
In response to these revelations, the Washington Legislature in 2015 unanimously passed a law placing limitations on the use of cell site simulators by police departments. The law requires law enforcement to provide judges with specific details about cell site simulators and how they will be used in a given case. It also places limitations on retention of data by requiring that any incidental information collected from bystanders not be used and be deleted promptly.
After the law went into effect, community leaders from Tacoma filed a public records request seeking documents regarding when and how TPD had used the cell site simulator, the capabilities of the device, and whether and how the department complied with the new law.
When TPD failed to adequately fulfill their request, the ACLU-WA in 2016 filed suit on plaintiffs’ behalf to enforce the PRA.
Plaintiffs intend to use proceeds from the case to further police accountability and transparency in Tacoma. They are represented by staff attorneys John Midgley and Lisa Nowlin of the ACLU-WA, and ACLU-WA cooperating attorneys Jennifer Campbell and James Edwards of Schwabe, Williamson & Wyatt.
The plaintiffs include:
Reverend Dr. Arthur C. Banks is the pastor at Eastside Baptist Church. Rev. Dr. Banks has been with the church since 1987 and under his leadership, the church has increased its membership from 68 active members to more than 400 active members. Most members live in the Hilltop neighborhood, an area especially impacted by the Tacoma Police Department’s practices.
Whitney Brady has lived in the Hilltop neighborhood for 29 years. In 2015, Brady ran for City Council in Tacoma on a platform that included police accountability. He also has coached youth sports in Tacoma and is concerned about the impact of police surveillance on young people.
Elder Toney Montgomery is a spiritual leader at Fathers House Church and serves as the chair for the Tacoma Ministerial Alliance. The organization works collaboratively with many other community and faith-based organizations by advocating for freedom of worship and social and economic equality.