By Ernesto Saavedra
“This is a very sad day for the Fresno Police Department, the citizens of Fresno, the law enforcement profession, and for me personally. Our department will continue to serve in a professional manner and to do all we can to maintain the trust and confidence of this community.” – Jerry Dyer, Fresno Chief of Police
On March 26, the chickens came home to roost for the Fresno Police Department (FPD). The Federal Bureau of Investigation (FBI) Sacramento Field Office and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) San Francisco Field Division announced the arrest of six arrested in Fresno for alleged violations of federal law related to a drug conspiracy. Among them was Deputy Chief Keith Foster, Dyers right-hand man. According to a press release from the FPD, “Keith Foster was arrested for conspiracy to distribute and/or possess with the intent to distribute oxycodone, heroin, and marijuana. These arrests are a product of an ongoing, year-long, joint investigation…” Prior to this, I had a run in with Keith Foster earlier this month.
March 3, I attended the Fresno Police Departments (FPD) Quarterly Media Meeting at their headquarters in Down Town Fresno. You had representatives from the Fresno Bee, Channels 21, 24, 30, 47 and KMJ, to name a few. According to Dyer, the purpose of the meetings is to “keep lines of communication open between FPD and all facets of media.” Furthermore, Dyer’s philosophy is “to provide the media with as much information as possible. We recognize the role of the media and we will do our best to provide the most up to date information available.”
Everyone has their notepads, pens and cell phones out. I had my voice recorder and placed it on the table in plain view for notes. Dyer, sitting right next to me, opens it up with mention of how the media covered Ferguson and how he’s glad that they got everything under control in Fresno. To sum it up, the questions to the FPD consisted of how to get the most up to date and accurate information regarding crime incidents heard on a police scanner and while on the scene. The meeting ended. This is when it got interesting.
Deputy Chief Keith Foster and Lieutenant Joe Gomez pull me to the side into a hallway, close the door and ask me “were you recording the meeting?” I say “yes.” Then Foster tells me that what I did was illegal because I was recording a “private” meeting. I was in a hurry so I just answered “okay” and I left. The next day, I reflected on what happened and thought it was unjust so I sent Gomez an e-mail. Below is an excerpt of what I sent:
…I was not aware nor was I given a notice, written or otherwise, that recording devices were not allowed prior or during the meeting. Furthermore, I found it interesting that I was singled out and no one else was. Everyone had their notepads out and cell phones and they weren’t asked if they were recording. So, I want a full explanation as to why I was singled out and I ask that you provide me with policy about these meetings for future reference… I also ask that you make this clear to everyone from the media and not single me or anyone else out.
Deputy Chief Keith Foster’s response:
…you were surreptitiously recording a private meeting…You should familiarize yourself with the criminal and civil implications of illegally recording a private meeting. You should carefully review California Penal Code Section 632 et al…Chief Dyer will be contacting your employer to convey his concerns as well. (emphasis my own).
I took Foster’s advice and familiarized myself with Penal Code Section 632 et al.
Penal Code Section 632 et al. section “a” states that “every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.”
Furthermore, section “c” of the code states “The term ‘confidential communication’ includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”
I think when you invite the media to something, all parties “may reasonably expect that the communication may be overheard or recorded.” With this, it sure appears as if the FPD was trying to intimidate the Community Alliance and myself legally, with no basis for prosecution.
There was nothing surreptitious about what I was doing. What is surreptitious is that the FPD is holding these meetings behind closed doors with the media and continue to work in secrecy. Ironically, with the recent chain of events, it seems that the FPD should familiarize themselves with the law and worry about what’s happening with their own officers as opposed to bullying the Community Alliance, community activists and organizers.
Dyer might have his hands full and I don’t think he’ll be calling my employer anytime soon. Stay tuned.