Berkeley Police among counter-protesters at a cancelled 'No Marxism in America' event in Berkeley, California, August 28.
Berkeley Police among counter-protesters at a cancelled 'No Marxism in America' event in Berkeley, California, August 28. Stephen Lam/Reuters

On August 5, counter-protesters showed up at a far-right, “No to Marxism” rally in Berkeley, California. The Berkeley Police Department arrested 20 people. And then it put some of their names and booking photos on Twitter.

On August 5, far-right activists held a “No to Marxism” rally in Berkeley, California, as part of a national commemoration of the anniversary of a deadly white supremacist gathering in Charlottesville, Virginia. The small rally was besieged by counter-protesters. As had usually been the case during such rallies, the Berkeley Police Department made arrests. But the department took an extra step that was unusual: It posted protesters’ names and booking photos on Twitter.

Three days later, the department removed the tweets. But each name and photo had already been widely shared, including on conservative news outlets and among right-wing social media users. “Let’s make them famous,” one Republican strategist instructed his thousands of followers.

While the department has sporadically released booking photos of arrestees via Twitter, it has never released them so quickly and methodically as during protests, leading some attorneys to argue that the targeting of protesters could violate their First Amendment rights. Activists have raised concerns that by broadcasting their identity, Berkeley police have put anti-fascist protesters in danger.

This social media practice appears to be highly unusual. A review of the Twitter accounts of law enforcement agencies in the 50 largest cities in the U.S. over the last year turned up few examples of protesters’ booking photos. Police in St. Louis posted photos of protesters arrested during a demonstration against a police shooting last September, but deleted the tweet after getting hundreds of negative responses. The Portland Police Department has posted booking photos of protesters, but also routinely posts booking photos for other offenses, unlike Berkeley. The Oakland Police Department has at times provided protesters’ booking photos with press releases, but typically waits until after prosecutors have filed charges.

Berkeley police started using the tactic last year after a series of confrontations between far-right activists and counter-protesters. The department tweeted the names and photos of 15 protesters arrested at two demonstrations last September. The grounds for those arrests have been called into question as none of those protesters were ever convicted of a crime, according to court records.

“Last year, anti-fascist arrestees and one of their defense lawyers received death threats and neo-Nazis showed up at court and were waiting for arrestees outside the jail,” said Rachel Lederman, an attorney with the San Francisco Bay Area chapter of the National Lawyers Guild. “Even the assistant district attorney was harassed. Berkeley is well aware of the danger in posting this information.”

Lederman said that the National Lawyers Guild has found that nearly everyone arrested at the protests last year and everyone arrested this year were anti-fascist protesters. Five anti-fascist protesters arrested in March 2017 were tried for assault but found not guilty. Meanwhile, Nathan Damigo of the white supremacist group Identity Evropa was captured on video punching a woman in the face in April 2017 but was never arrested or charged.

The department has disputed that ideology has played any role in the arrests. It said in a statement that arrests are “based on people breaking the law, not on viewpoint and expression of speech.”

Berkeley first became the target for a series of rallies and events by far-right activists in February 2017, when a planned speaking engagement at University of California, Berkeley, by then Breitbart News editor Milo Yiannopoulos was disrupted by large crowds of counterprotesters. Black-clad activists attacked the campus venue, setting a fire and breaking windows. At rallies in March and April, right-wing activists arrived armed and ready to fight. There were brawls at each event, and dozens of people were arrested.

From the Berkeley Police Department Twitter account, September 2017. The names and faces were not redacted.

That September, UC Berkeley students planned more appearances by far-right speakers. About 1,000 people protested outside a speech by Ben Shapiro, another former Breitbart editor, and nine people were arrested. Yiannopoulos then announced a week of speeches by well-known conservatives, including Steve Bannon and Ann Coulter, but the event fizzled into only a short speech by Yiannopoulos in a public square on campus. A large group of demonstrators then marched through city streets and 11 people were arrested.

Berkeley police tweeted the names, booking photos, and charges for a total of 15 protesters from the two September 2017 events. The charges identified in the tweets included carrying a banned weapon, battery on a police officer, disturbing the peace, and resisting arrest. But only four of those people were ever charged by the Alameda County district attorney’s office and all of their cases were dismissed in court.

At the August 5 rally, police protected a small group of right-wing activists who gathered in Martin Luther King Jr. Civic Center Park. Unable to access the park, anti-fascist protesters marched through the streets, smashing the windows of parked city vehicles and at a U.S. Marine recruiting center. Police said protesters threw fireworks at officers and officers deployed smoke grenades and rubber bullets.

As the demonstration went on, police announced a steady stream of arrests via Twitter, eventually posting 15 booking photos. The department later said it had arrested 20 people.

Berkeley police spokesperson Officer Byron White provided a written statement from the police defending the release of photos on Twitter, saying it was legal and constitutional. “This is done not in an effort to shame, or to chill freedom of speech, but to deny lawbreakers anonymity, and to deter those who in the future may be considering bringing weapons into our community, in order to commit acts of violence,” the department said.

The charges listed in the department’s tweets were vague, including for carrying a “banned weapon” or “working with others to commit a crime.” White would not clarify what weapons the protesters were accused of carrying or what crime they were allegedly conspiring to commit. White also would not answer questions about why Berkeley police do not typically announce arrests via social media except at protests, why no one whose arrest was publicized on social media last year was convicted or why the tweets were removed.

None of the arrestees identified from the August 5 demonstration have been charged. Lederman said that many of the “banned weapons” were common items associated with protests such as flagpoles or bandanas. Since last year, the department has issued a long list of banned items before protests, including masks, which Lederman said the National Lawyers Guild has warned the Berkeley city attorney’s office is unconstitutional. It appears that those arrested are not accused of the most serious acts of vandalism: While one protester was arrested for alleged vandalism, Berkeley police issued a press release on August 9 seeking help identifying the protesters who smashed city vehicles and the Marine recruiting center.

Under California law, an arrestee’s name and booking photo is considered public information. But the rapid release of this information via social media is unusual for Berkeley police. The department typically does not release the names or booking photos of suspects so quickly after an arrest, even for shootings and homicides. For example, an official press release issued in June about the arrest of a shooting suspect neither named the suspect nor provided a booking photo.

The Berkeley Police Department has struggled with its response to protests in recent years. The National Lawyers Guild sued the city after a Black Lives Matter protest in 2014, when police used batons and tear gas on peaceful demonstrators and journalists. The city settled the suit last year and the department promised to change its use of force policy. But those reforms have been moving slowly and the department was sued again last month for officers’ use of force during a protest at a June 2017 city council meeting.

Not everyone has been critical of the Berkeley police response to the protests, however.

“The police have been great,” right-wing organizer Amber Cummings told reporter Ford Fischer on August 5. “They’ve been handling things and keeping us separated. Police have done a great job here.”

This article originally appeared in The Appeal.

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