Arguments wrap in Union Square surveillance case

  • by John Ferrannini, Assistant Editor
  • Tuesday February 1, 2022
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Deputy City Attorney Wayne Snodgrass, lower left, and plaintiffs' attorney Sara Hussain, lower right, argued their case before San Francisco County Superior Court Judge Richard Ulmer, top left.  Photo: Screengrab
Deputy City Attorney Wayne Snodgrass, lower left, and plaintiffs' attorney Sara Hussain, lower right, argued their case before San Francisco County Superior Court Judge Richard Ulmer, top left. Photo: Screengrab

Judge Richard Ulmer of San Francisco County Superior Court is currently considering whether to side with the city or protesters alleging that police illegally spied on them in Union Square two years ago. The lawsuit comes as Mayor London Breed wants to grant police even more access to security cameras in public areas that have been impacted by an uptick in store robberies and other crimes.

As the Bay Area Reporter previously reported, both sides motioned for summary judgment in the case of Williams v. San Francisco and began making their arguments January 21. The conclusion of the arguments was pushed to February 1.

In the case, lawyers from the American Civil Liberties Union allege that police conducted mass surveillance on the Black Lives Matter protests that erupted in late spring 2020 by commandeering private security cameras in the Union Square area.

The plaintiffs in the suit were protesting the murder of George Floyd by a Minneapolis police officer. They are lead plaintiff Hope Williams, a member of the Harvey Milk LGBTQ Democratic Club, Nathan Sheard and Nestor Reyes.

"Our lawsuit defends our right to organize protests against police violence without fear of illegal police surveillance," the trio wrote in a recent post on the website of the Electronic Frontier Foundation, which is also representing the plaintiffs.

Their attorneys are arguing that the use of the security cameras was illegal under a city ordinance passed by the Board of Supervisors in 2019 that requires any city department obtain board approval prior to acquiring, using, or borrowing any surveillance technologies, except in "exigent circumstances."

The ordinance states that in such circumstances a city agency must "cease using the surveillance technology within seven days, or when the exigent circumstances end, whichever is sooner."

It is undisputed that the Union Square Business Improvement District operates a surveillance camera network that was monitored by police May 31-June 7, 2020.

The city is arguing that the use of the surveillance technology was not illegal under the wording of the ordinance. The city argues that the use of the technology for seven days does not have to be continuous; plaintiffs' attorneys argue it does.

"I would just like to point out that the bulk of our arguments today has been on this grace period piece, and this is the city's defense," said Electronic Frontier Foundation attorney Saira Hussain, referring to the weeklong span when it is legal to use surveillance technology without supervisorial approval due to an exigent circumstance.

"It doesn't say grace period anywhere," Ulmer said. "In my order I'm not going to be using 'grace period' or 'grandfathering' because nobody is using it."

Hussain had said that there's precedent from other jurisdictions to back up her interpretation of the ordinance.

"Given that the facts are undisputed about the SFPD's 2020 use during this protest, plaintiffs are entitled to a permanent injunction and we urge the court to grant the plaintiff's motion for summary judgment," Hussain concluded.

Deputy City Attorney Wayne Snodgrass, who'd previously said that cases not about this particular ordinance shouldn't bear on the judge's ruling, said that "this is a straightforward statutory interpretation case" and asked Ulmer to grant his competing motion for summary judgment.

"Thank you both for your arguments," Ulmer said. "I thought this was well briefed and well argued on both sides. I am going to take it under submission."

An unnamed clerk at Department 302, where the case was heard, stated to the B.A.R. that Ulmer has 90 days to make a ruling.

Meanwhile, Breed and some of the more progressive supervisors are pushing different approaches to the question of video surveillance, as the B.A.R. reported last month. The matter will come before the board in the coming weeks.

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