1981 ~ORCEME ' T rBI BULLETIN ~ORCEMENT rBl BULLETIN

FEBRUARY 1981. VOLUME 50. NUMBER 2 Contents

Training 1 Police Officer Survival During Traffic Stops By William J. Thomas and Frank W. Boyer

Physical Security 7 Police Planning For Prison Disturbances By Capt. Charles McCarthy

Crime Resistance 10 Commercial Crime Prevention Can Earn Insurance Discounts By D. P. Van Blaricom

Crime Problems 12 Film and Video Tape Piracy: A Growing EpidemiC By Richard H. Bloeser

Management 19 Managing Promotions and Resulting Conflict: A Realistic Approach By Norman C. Couns

Police-Community 24 A Crime Prevention Program For The Handicapped Relations By William E. Perry, Jr.

The Legal Digest 26 The Privacy Protection Act of 1980 By Larry E. Rissler

32 Wanted by the FBI

THE COVER: A routine Federal Bureau of Investigation Published by the OffIce of Congressional and traffic stop can be a United States Department of Justice PubliC AffairS. potentially dangerous Roger S. Young situation to the police Washington, D.C. 20535 Assistant Director officer. See artIcle p. 1. William H. Webster, Director Editor-Thomas J. Deakin ASSistant Editor-Kathryn E. SulewskI The Attorney General has determined that the publicatIon Art Dlfector-Carl A. Gnam. Jr. of th,s periodIcal IS necessary In the transacllon of the Water/Editor-Karen McCarron L Summers public bUSiness required by law of the Department of Production Manager-Jeffery JustIce Use of funds for printIng th,s periodIcal has been approved by the Director of the Offtce of Management and Budget through December 28. 1983.

ISSN 0014-5688 USPS 383-310 Another sad chapter has been written in the history of violence in the Police Officer Survival United States. Nationwide, in 1979, 106 law enforcement officers were During Traffic Stops slain while performing police duties.' Assaults upon police officers seem to be spreading like cancer in our turbu• By William J. Thomas, Director lent society. And Frank W. Boyer, Instructor-Coordinator Are these annual statistics inevita• Division of Law Enforcement Training ble? Does commonsense suggest Kentucky Department of Justice there is room for improvement? Will a Bureau of Training reappraisal of police practices contrib• Richmond, Ky. ute to a reduction of these violent con• flicts which, all too often, result in police and violator injuries and death? If we could minimize or eliminate our mistakes, could some of these lives be saved?

." I / The Kentucky Department of Jus• 1979. It seemed logical, then, to review tice, Bureau of Training, recently the "traditional" traffic stop to deter• sought to answer these questions dur• mine where we were most vulnerable. ing a case-by-case study of police inju• For many years, police officers ries and death. An attempt was made have been trained to use one or two to reconstruct the actual occurrences methods for vehicle stops. The first to determine those factors which di• method requires the officer to position rectly contributed to serious or fatal his vehicle 10 feet to the rear and 3 injury. In addition to reviewing these feet to the left of the stopped vehicle. case histories, instructors interviewed The second method calls for the officer street policemen, shared experiences to park the cruiser directly behind the with each other, and researched avail• violator's car, which permits normal able material, which was scarce. The traffic flow and decreases vehicular contributing factors derived from the congestion. When using either of these study became the foundation for an stops, the officer is instructed to com• "officer survival" training program, es• municate a description of the vehicle tablished by the Bureau of Training, and its occupants, the license number, which was designed to teach officers and location where the stop occurs. to handle difficult confrontations in a Thereafter, the officer typically re• Mr. Thomas professional manner. trieves a hat and flashlight in prepara• The training program is presently tion for leaving his vehicle. being taught to over 3,000 Kentucky When approaching the violator, police officers. Successful completion the officer is taught to check the vehi• of at least 40 hours of annual inservice cle trunk to ensure it is secure, check training is mandated for all officers who the rear seat and passengers, and receive a State-funded salary supple• then, if all is clear, to approach the ment. The purpose of this pay incen• violator. Most officers have been tive program is to enhance police taught to stand slightly behind the driv• professionalism through training. er's side door, which affords protection The survival course includes prac• from a sudden opening of the door and tical training in answering disturbance which requires the offender to turn calls, handling felony-in-progress calls, around if he intends to assault the stopping and approaching vehicles, officer. Also, we have been taught to conducting custody and building watch the violator's (and passengers') searches, and planning raids. In addi• hands while they rummage through tion, officers study survival statistics, their clothing, purse, glovebox, or con• clandestine weapons, and body armor. sole in response to the question, "May Emphasis is placed on avoiding mis• I see your operator's license, please?" takes which may place an officer in Once the officer obtains the li• cense and explains the reason for Mr. Boyer danger. Officers are taught that main• taining control of the situation will re• stopping the violator, he moves to the duce the need to use force, thereby location where the citation will be writ• affording protection to suspects and ten . The officer then turns his back to arresting officers as well. As a direct result of this research and training program, new and safe techniques were developed for every• day police practices. Developing those techniques began with a look at surviv• al statistics. For example, our research indicated that nationwide in 1979, 6,329 police officers were assaulted and 15 slain during traffic pursuits and stopS.2 Also, our research in Kentucky revealed that 79 assaults and 1 death resulted from traffic stops made during

2 I FBI Law Enforcement Bulletin the violator and walks back to his po• lice cruiser. In some communities, it is common practice to allow the violator to sit in the police cruiser while the citation is being completed. In any event, most pOlice officers complete the citation in the front seat of their cruiser, with the dome light on if at nighttime. After the citation is complete, the officer again leaves the cruiser to ap• proach the violator. Some have to stop to record the vehicle tag number be• cause they parked too close to see it while seated in their cruisers. Many officers admitted being less careful during this second approach, having been lulled into a false sense of secu• rity after the initial encounter. Finally, the officer returns to the rear of the violator's door, explains the citation and court requirements, ob• tains the violator's signature, and re• turns to his cruiser. As he walks back, with citation in hand, he may be carry• ing the only piece of evidence which later may be used to place the violator at this location and time. How many times was the officer in this traffic stop One method of a traditional traffic stop is for the officer to park his cruiser directly behind the vulnerable? violator's car. 1) When the officer first makes the stop, searching for items before exiting his police unit; 2) While approaching the suspect vehicle; 3) While the violator's (or passengers') hands were removed from the officer's sight, in order to find an operator's license; 4) As the officer returns to the cruiser with his back turned; 5) While sitting in the cruiser writing the citation; 6) During the second approach to deliver the citation; 7) While engaged in a second encounter with the violator; and 8) When he turns his back to return to the cruiser, signed citation in hand.

When returning to his cruiser, with back turned to the viola tor, the officer becomes vulnerable to potential attack.

February 1981 I 3 By requesting the violator to step back to the When writing the Citation, the officer should face police cruiser, the officer can keep the violator and the violator from a distance of 8 to 10 feet. using any occupants of his car constantly in view. peripheral vision to observe any movement by the thereby protecting himself from attack. violator or the occupants in his car.

These eight points of vulnerability In those cases where a police offi• Next, the officer locates his flash• are not omnipresent, or all inclusive, in cer has an explainable justification for light and ticket book and dons his hat, all traditional traffic stops. Further• feeling that his safety is in jeopardy, if required. Once the officer has com• more, they do not indicate that this the Bureau of Training advocates pleted these steps, he is ready to make method should never be used. The a traffic stop which considers a the stop. He activates the emergency Bureau of Training advocates con• higher threat level. These circum• equipment and communicates to the tinued use of the traditional stop during stances should represent possible radio dispatcher the vehicle and occu• inclement weather, when stopping the danger Signals to the officer. pant description, license number, and handicapped, or in any circumstances Whenever an officer observes a location where the stop occurs. Rather where the officer feels reasonably violation under such circumstances than returning the microphone back to secure in his personal safety. and decides to make a traffic stop, he its holder, he places it to the left side of We recognize, however, that should roll the driver's side window the steering column for ready access these are extraordinary times. Police down for three reasons. First, it should an emergency occur. officers and violators, by the thou• enables him to hear better when ap• sands, are being injured, assaulted, or proaching an inCident; second, it en• killed every year during traffic pursuits ables him to return fire more easily and stops. Police survival in the 1980's from a cover pOSition while still seated can be enhanced by a willingness to in the car or from behind the front door; review routine practices and accept and third, it prevents eye and other the responsibility to establish policies injuries which may occur from broken consistent with police officer and glass fragments. violator safety.

4 I FBI Law Enforcement Bulletin The positioning of the cruiser is At this point, the officer cautiously important. When the violator stops his accepts the violator's license in the car, the officer pulls directly behind the hand that still holds the ticket book. violator. As his vehicle approaches a Upon receiving the license, the officer distance of 15 to 20 feet to the rear of moves directly back to a position ap- the suspect vehicle, he turns his steer- prOXimately 8 to 10 feet from the vio- ing wheel to the left and offsets his left lator, facing him, and writes the cita- front end 1112 to 3 feet outside of the tion, using his peripheral vision to ob- left side of the violator's car. With the serve any movement made by the vehicles stopped in this position and violator or others in the car. The officer the emergency equipment still operat- should ask the violator to keep his ing, the officer immediately positions hands in sight and explain that this is himself outside the cruiser, behind the necessary for his protection, as well as driver's side door, which places the left the officer's. front wheel of his vehicle between the If an arrest is necessary, the offi- officei and the suspect. At this point, cer secures the first suspect and may the officer should have his ticket book either call for backup assistance or in his off hand and his flashlight under secure each additional suspect in the his arm, with his gun hand free. The same fashion as the first. suspect is then requested to exit his When the citation is completed, vehicle on the driver's side to produce the officer returns the operator's li- his operator's license or other identifi- cense and citation to the violator, still cation. Particular caution should be ex- keeping his gun hand free. He obtains ercised when dealing with obviously the violator's signature and then di- inebriated subjects who may stagger rects the subject to return to his vehi- into paSSing traffic. cle, using the curb side of the police In addition to the increased dis- cruiser. The officer waits until the viola- tance, the officer has the added advan- tor has reached his auto and left the tage of being behind cover while still scene before returning to his cruiser. able to keep the violator's hands in In the traditional traffic stop, eight sight. All other car occupants are points of vulnerability were listed. How instructed to remain seated in the many of these were reduced or elimi- suspect vehicle. nated by the higher threat­level stop? After the operator locates his 1) When the officer first makes license, the officer then courteously the stop, searching for items requests him to step back to the offi- before exiting his police unit. cer's cruiser. As the violator ap- Once an officer has mastered the sequence of events, including rolling proaches, the officer watches his Proper positioning of a cruiser can give police hands, and when the suspect is within down the driver's side window, locating officers additional protection during a traffic stop. 8 to 10 feet of the officer, the officer his ticket book and flashlight, putting closes the cruiser door and takes three on his hat, setting the emergency or four steps backward, facing the sus- equipment into operation, and radioing pect as he moves to the rear of the information to headquarters, all of police unit. He directs the violator to which should occur before the vehicles move to the rear of the cruiser and come to a complete stop, time spent remains in a position to look over the searching for items or using the radio violator's shoulder to observe the oc- should be Significantly reduced. cupants still in the suspect vehicle. 2) While approaching the suspect vehicle. The officer will not have to leave cover to approach the violator, and his vulnerability at this point will be sub- stantially reduced.

February 1981 / 5 3) While the violator's (or There is no way of measuring the passengers') hands are removed "Police survival in value of the new traffic stop at this from the officer's sight, in time. Some point out that valuable evi- the 1980's can be dence may be missed if an officer does order to find an operator's enhanced by a license. not observe the contents of stopped The violator will be requested to willingness to motor vehicles. However, it is generally produce his license while still outside review routine believed that these observations, and his automobile, which is parked ap- practices and the percentage of arrests that result, proximately 15 to 20 feet away. If the are not worth the additional danger violator pulls a weapon, distance and accept the involved. cover are on the officer's side. Statis- responsibility to While it is too early to determine tics over the past 1 O­year period have establish policies whether assaults upon the police will shown that 47.5 percent of all police be reduced by using this traffic stop, officers were shot at a distance of 0 to consistent with most officers who use it report that it is 5 feet from their assailants, while less police officer and working well. Naturally, there was an than 5 percent have been shot from a violator safety." initial resistance to change, but officers distance of 20 to 30 feet. in Kentucky who were taught to use 4) As the officer returns to the different traffic stops, as the circum- cruiser with his back turned. 8) When he turns his back to return stances dictate, are not complaining of In the higher threat stop, the offi- to the cruiser, signed citation in problems with public acceptance. cer is never going to turn his back to hand. To date, we have not experienced the violator. Everything that happens Once again, since the officer does the loss of a police officer who was during the new stop is within view of not deliver the citation, he never turns taught the new technique, and here in the officer­the violator, the violator's his back to the violator or the passen- Kentucky, we are keeping our fingers vehicle, and any occupants therein. gers in the vehicle; therefore, his vul- crossed. rBI 5) While sitting in the cruiser nerability is substantially reduced. Certainly, eliminating all danger in Footnotes writing the citation. , Federal Bureau of Investigation, Crime in lhe Uniled The vulnerability of the officer sit- police activities is an unreasonable ex- Slales-1979, (Washington, D.C.: U.S. Government Printing Office, 1980). ting in a cruiser while writing a citation pectation. However, training police offi- , Ibid. is completely eliminated by the fact cers to recognize danger signals and that the officer does not return to his to use discretion in selecting either the cruiser until the suspect has left the traditional, higher threat­level, or felony scene. traffic stop that provides the officer 6) During the second approach to with important alternatives to age­old deliver the citation. police procedures is not an exercise in There is no second approach to paranoia. All too often, departmental the vehicle to deliver the citation after it policy or inadequate training restricts is written, so this vulnerable step is the police officer's ability to select the eliminated. most appropriate traffic stop, and con- 7) While engaged in a second sequently all stops are more perilous. encounter with the violator. Public education is also an impor- Since the officer does not return to tant consideration when changing past the suspect's vehicle, the danger asso- police practices. The Bureau of Train- ciated with the second encounter be- ing invites local reporters to attend the tween the officer, the suspect, and training sessions so that motorists may passengers is eliminated. be informed on what to expect. While most citizens will cooperate when re- quested, they need to be told not to become alarmed when they are stopped for a traffic violation and re- quired to leave their vehicle. The fact that a few refuse to comply should alert any clear thinking officer to act with due caution.

6 I FBI Law Enforcement Bulletin Police Planning for Prison Disturbances

" TROUBLE AT THE PRISON." By Capt. Charles McCarthy be addressed first by a police com• Unfortunately, this statement seems to Department of Law Enforcement mander-problem of prison mystique. be heard more frequently in recent Illinois State Police Simply stated, the prison mystique is the years. It causes great stress to any Pontiac, III. feeling one gets when going within the police commander or official whose walls or fence for the first time-or the jurisdiction includes a correctional fa• As opposed to the campus disor• tenth. The metallic clang of gates and cility. Prisons in Attica, N.Y., Pontiac, ders and rock festivals of the late doors, the glum stare of the inmates, III., and Santa Fe, N. Mex., are just 1960's and 1970's, the police role in comments uttered or shouted by people a few where loss of life and huge prison disturbances in recent years who have nothing significant to lose as a financial losses have recently been seemed well-defined. The environmen• result of their actions are factors which, experienced. tal boundaries and the type of people coupled with the feeling of being en• being dealt with are established well in closed in a hostile environment, add to advance of any outbreak. While many the feeling of uneasiness. To alleviate police officers were yelled at and spat this uneasiness, supervisors and their upon by irate students on campuses, troops were taken on guided tours of the persons involved in prison situa• tions are of a different sociological and psychological makeup. This factor gives rise to a definite point that should

February 1981 / 7 prisons within their jurisdiction. In the In the aftermath of chaotic disturb• event any of the officers would have to " . . failure on the ances, the historian is essential in or• enter the grounds, they would be famil• der to recall times, commitments, and iar with salient trouble spots and would part of the unit actions that will eventually serve as the know where to go when directed by a commander to basis for reconstruction presentations. command officer. As expected, many address a potential These officers normally report to the officers whose patrol areas encom• problem could public information officer; however, passed the prison lived in the vicinity during a disturbance, they work inde• but had never set foot behind the result in a loss of pendently. Personnel assigned to this walls. They were completely unfamiliar professionalism detail should be well-trained in the use with the buildings or potential trouble that could be of recording equipment and should un• spots. derstand that it is essential to report This program met with great ac• detrimental to the objectively the actions that occur. ceptance by our officers and the facility entire operation." staff and later was extended to mem• Troop Control bers and supervisors of response While each facility and level of teams that would support a police Historians disturbance dictates the amount of commitment to the facility. Each tour With a prison disturbance or any manpower needed and method of de• served three purposes: significant police action comes the in• ployment, the smaller the basic work 1) It exposed the officers to the evitable inquiry, "What happened?" It unit, the easier it is to control. Our prison mystique and allayed is repeatedly asked by the governor's organizational chart has a basic work some of the fears associated with office, legislators, news media, con• unit consisting of four troopers to one it; cerned reform groups, and grand juries supervisor (corporal), with two of these 2) It made the prison staff aware soon after a disturbance starts and units answering to a sergeant. In com• that preparations were being usually continues for many months, parison to the 6 to 1 control ratio for made in the event of a problem sometimes years. In an effort to an• other disturbances, a ratio of 4 to 1 is requiring our assistance; and swer this question in a professional considered more favorable in view of 3) It made the prison population manner, a team of four "historians" the limited space involved and the high aware that the next time outside has been established. These officers degree of fire control needed. assistance by police was are usually the first to arrive at a dis• Each supervisor should be necessary, the incident would not turbance and the last to leave. Their equipped with radio communication. It be as chaotic as some in the past equipment consists of a video tape is believed that close communication due to lack of familiarity with the recorder, audio tape recorder, and writ• and supervision can eliminate many of facility. ten logs; their function is to record the criticisms of the handling of past everything during the disturbance. disturbances. There should be close Response Team Callup Generally, they are stationed in the scrutiny of supervisors and troopers to One problem of any unexpected vicinity of the unit commander or where determine whether they remain calm large-scale police action is the call up operational activities are centered. Ev• under stress. Any irregularities or of the people involved. This plan re• ery statement, decision, and even gen• changes in behavior should be acted quires that all personnel supply both eral conversation should be recorded, upon immediately; failure on the part of primary and alternate phone numbers regardless of how insignificant it may the unit commander to address a po• where they can be reached. A callup seem, and then written down in the log tential problem could result in a loss of exercise is also beneficial for planners, in chronological order. professionalism that could be detri• as it gives a rough idea what percent of mental to the entire operation. the force can be assembled and the approximate amount of time it will take Special Planning for the group to be deployed. Every facet of disturbance plan• Most often, two questions are ning is important. One important logisti• asked: How long will it take you to get cal consideration is selecting a suitable to the prison and how many officers assembly area where personnel can can be provided? We have found that form tactical units and be briefed. In callup exercises enable planners to an• swer these questions with some accu• racy. A periodic update of the telephone listing of personnel is also essential for an efficient call up.

8 / FBI Law Enforcement Bulletin choosing this site, thought should be given to the security of vehicles left behind, transportation of personnel to the prison, feeding and housing per- sons for an extended period of time, if necessary, and accounting for person- nel on the detail. While this last pOint appears routine, during the 1978 Ponti- ac disturbance, a man who was actual- lyon vacation was assigned to the detail. Considerable effort was need- lessly expended in trying to account for the man. This could have been avoid- ed by using a formal roster for account- ability. The use of a predetermined site also enables storage of supplies and other equipment that otherwise might have to be transported great dis- tances. The installation of phone jacks Captain McCarthy and immediate access to additional Of prime importance is the coordi- telephones also add to an efficient op- nation of fire departments whose per- eration. sonnel may have to enter the facility to Another factor that caused some fight fires or evacuate the injured. Care uneasiness among troopers was un- must be given to provide these units certainty about personnel manning with adequate protection inside the guard towers. It was determined that prison. Of course, the particulars of where pOSSible, select members of the any plan involving local participation police unit would also man the towers. have to be coordinated with the re- Police and prison personnel later con- spective agencies at the time of incep- ducted target practice from the towers. tion and execution.

Involvement of Local Agencies Summary It should be emphasized that an- While the list of planning points other source of manpower are local can extend indefinitely, there are two agencies in whose jurisdiction the pris- philosophies that should govern all dis- on is located. Traffic control, crowd turbance planning: management, handling the families of 1) The plans should be flexible. If a both guards and prisoners, and many plan is too rigid and part of it other support duties are important to cannot be implemented, it oftentimes puts the commander R. J. Miller the overall success of an operation. Chief of Police These tasks should be coordinated back to a position of having no and carried out with the cooperation of plan at all; and local agencies. 2) Everyone involved should be familiar with the plan in its entirety. The extent of familiarity can be measured, in part, by asking any member of a response unit to identify the location of specific points within a facility. Disturbance plans can be as elaborate or as simple as the com- mander and his staff deem appropri- ate. However, the success of an operation ultimately depends on the interpretation and implementation of those plans by firstline supervisors and troopers. rBI

February 1981 I 9 Commercial Crime Prevention Can Earn Insurance Discounts

By D. P. VAN BLARICOM As the city of Bellevue grew from a home protection program into the small suburban community into a major neighborhoods where we actively en• Chief of Police business and population center, the couraged residents to improve locks, Police Department social problem of crime, not surpris• mark property for identification, and Bellevue, Wash. ingly, grew with it. organize block watches. People were extremely cooperative in following sug• EDITOR'S NOTE: Mention of The first concentrated effort to affect positively commercial losses by gestions to make their homes more commercial firms in articles in the FBI "hardening the target" began in 1971, secure, and accordingly, we experi• Law Enforcement Bulletin is when a single police officer was enced not only an end to the steadily sometimes necessary for clarity, but assigned to contact personally each of riSing residential burglary rate but a 38• such mention should not be construed the then approximately 1,000 business percent decline in such incidents fol• as an endorsement by the FBI. establishments in the city and advise lowed over the succeeding 18 months them on methods of crime prevention as well. they could reasonably adopt. Because Commercial burglary, however, burglary was the most prevalent crime continued to increase, and believing with which we were concerned, initial we could apply similar methods to emphasis was placed on building secu• achieve the same success with our rity; however, it soon became evident now over 4,000 business establish• that business managers were also in• ments, we initiated a commercial crime terested in shoplifting and check or prevention program in 1978. By this credit card losses. time, armed robbery had become a After a period of nearly a year, all frequent occurrence and was included of the businesses had been contacted, among the other regularly encountered and there was a slight reversal in the crimes of burglary, shoplifting, check or Chief Van Blaricom number of commercial burglaries, while credit card fraud, and internal theft by other crimes continued to rise. Conse• employees. The program was struc• quently, the essentially ad hoc program tured so as to have participating busi• was considered to have been a mod• ness managers attend a 1-day seminar est success; however, changes of that would advise them on how to cost assignment among the department's effectively enhance their overall secu• staff caused this particular crime pre• rity against potential criminal loss by vention approach to be discontinued in applying proven crime prevention favor of other priorities. techniques. After the seminar was con• Crime prevention became an ducted, officers made onsite inspec• accepted policing method in 1975, tions of each participant's store to when a fully staffed unit was perma• make specific recommendations on re• nently established in the police depart• ducing crime in that particular working ment. Initially, we concentrated our environment. efforts on rapidly escalating residential The program was initially offered burglaries. The directed response to to the local business community by that problem was to take a coordinated inviting every establishment in a select• ed area to attend the same seminar as a group of neighboring commercial in•

10 / FBI Law Enforcement Bulletin terests with presumably common prob• from a similar concept of lower auto lems. An extremely low attendance of insurance premiums for nondrinking only 19 percent of those invited imme• drivers, we wondered why similar rate Dear Bellevue Business Owner: diately indicated the need for a rede• adjustments could not be made for In an effort to encourage Bellevue signed format to increase participation. businesses that participate in a proven businesses to engage in proven crime We next presented the program in two crime prevention program. Surely it is prevention techniques, we contacted half-day sessions with the hope that unfair for those who attempt to protect the major local insurance underwriters smaller businesses, which could not their establishments against criminal to explore the possibility of crediting afford to have a person away from their loss to continue sharing higher insur• the premiums of those who participate shops for a full day or did not have the ance costs with those who choose to in the Bellevue Police Department's full range of crime problems, could remain vulnerable, especially when the Commercial Crime Prevention more readily participate; however, this better alternative is freely available Program. tactic produced no real improvement in from their local police department. It We are pleased to announce that attendance. We next decided to direct can even be argued that loss reduction three companies have advised us that invitations to businesses of a particular from crime prevention is either a wind• they will take such participation into type (i.e. restaurants, retail clothing fall profit for the insurer or actually account in setting their rates for stores, etc.). Some slight improvement serves to subsidize crime by helping individual businesses and they are (in resulted, but attendance was still unac• cover the losses of those businesses alphabetical order): ceptably low at 22 percent. It was obvi• that do not implement their own loss ous that if we did not motivate reduction strategies. Safeco Insurance Companies substantially more voluntary participa• The next step was to contact 11 State Farm Insurance Companies tion, the commercial crime prevention major insurance companies writing Unigard Insurance Group effort was going to fail. (The one nota• commercial business in this region to As a further economic incentive to ble exception to this pattern was explore our new idea with them. After becoming fully involved in "hardening banks, which had been experiencing a observing the operation of the crime the target" against criminal loss within rash of robberies. A bank security train• prevention program and studying the your own business, you may wish to ing program was specially developed, proposal of insurance credits for par• obtain a premium quote from one of and of the 35 banks in the city, 32 ticipating businesses, three of the larg• these companies after completing our eagerly participated, with some retrain• est companies agreed to consider up program. ing their employees as many as three to as much as a 25-percent premium While we cannot, of course, times over a year's period.) Most frus• reduction in their commercial rates, recommend a particular carrier, we do trating was the fact that those busi• depending upon a business establish• want Bellevue businesses to be aware nesses who were represented at the ment's efforts to enhance its security. of this community's responsibility to seminars and who implemented the A letter was distributed to all partici• protect itself from crime and we recommended security precautions did pants advising them of the insurance appreCiate the support that the experience a reduction in criminal loss! companies' decision to lower the rates insurance industry has given to our Yet, we still could not develop any for all those involved in the crime pre• mutual effort of enhancing your interest among the majority of the busi• vention program. business' security. ness community to let us help them Although it is too early to predict Sincerely, prevent crime in their own stores. We complete success, an increased at• did not know whether the problem was tendance of 44 percent was recorded D. P. Van Blaricom simply one of apathy or a general belief at a recent seminar, and we think that Chief of Police that nothing could really be done. It we may have learned a valuable rule was imperative, however, that we find for establishing a cooperative relation• a solution quickly-we could not con• ship between America's businesses The attempt to enhance the secu• tinue to fund an unsuccessful program. and other agencies. When the private rity of our business community ranged Finally, we began thinking like our sector's participation in a public pro• from being initially frustrating to even• prospective clients and reasoned that gram is needed, an economic incentive tually becoming satisfying. To those perhaps the only way to influence a should be introduced and both will be who would try to implement similar business person was with the corner• better served. commercial crime prevention programs stone of democratic free enterprise-a in their own communities, it is suggest• " profit motive." We contemplated ed that far more progress may be where we might show a clear savings made at the outset by starting with the on the business manager's ledger fundamental business equation of sheet and decided that since our " profit and loss." FBI efforts were calculated to reduce risk, the most likely concurrent reduction would be in insurance costs. Drawing

February 1981 I 11 In 1680, pirates sailed the Spanish Main in their galleons, brandishing cut• lasses and flintlock pistols and plun• dering gold, silver, jewels, and other Film and treasures from merchant ships and government vessels alike. In 1980, the galleons have long since sunk to the bottom of the sea, the cutlasses and flintlocks are on display in museums, Video Tape and the gold and other treasure buried and forgotten on some Caribbean island. The pirate, however, still exists to• day. His weapons are no longer the Piracy cutlass and pistol; instead, they are the film projector, the video camera, and video cassette recorder. His booty no longer consists of gold and jewels but A GROWING EPIDEMIC of something equally valuable-the current copyrighted motion picture. Pi• By Richard H. B/oeser racy still exists on the high seas, usual• Director ly in the form of an oil tanker captain Film Security Office and his crew watching a pirated video cassette of "Star Wars." The modern• Motion Picture Association ofAmerica, Inc. Los Angeles, Calif. day buccaneer is known as a film or Former Special Agent video pirate. Federal Bureau of Investigation Film and video tape piracy, most commonly associated with violations of the copyright law, are among the fas• test growing white-collar crimes not only in the United States but through• out the non-Communist countries of the world. Although copyright infringe• ment is the basic violation involved in film/video piracy, other Federal and local violations are frequently commit• ted by the "pirate." Burglary, theft, smuggling, mail fraud, fraud by wire, interstate transportation of stolen prop• erty, conspiracy, pornography, income tax evasion, and other crimes are often a part of piracy operations.

12 I FBI Law Enforcement Bulletin Star Wars, a multimillion dollar production, has fallen victim to film pirates.

A review of the basic elements of the copyright law may help to dispel any confusion or reluctance to initiate prosecutive action against a film/video pirate. Title 17, U.S. Code, as revised January 1, 1978, grants to the copy• right holder certain rights, including the exclusive right to sell, duplicate, or publicly perform or exhibit the copy• righted product. In the case of motion pictures or television programs, the motion picture companies, which are usually the copyright holders, have the exclusive right to sell or rent their pic• tures, duplicate the films, or exhibit the films publicly. These exclusive rights also include the right to license others to rent, duplicate, or exhibit publicly the copyrighted films. The basic elements of film/video piracy are, therefore, the unauthorized sale, rental, duplication, or public exhibition of copyrighted mo• The Congress of the United States Until a few years ago, most pros• tion pictures. has designated the FBI as the agency ecutors and law enforcement officials Federal copyright law provides for responsible for the investigation of vio• were completely unfamiliar with copy• both civil and criminal penalties, and lations of Federal copyright law. How• right law or the problem of film/video those convicted of criminal copyright ever, in view of the many facets of piracy, causing confusion and reluc• infringement could receive a sentence film/video piracy, other Federal and tance to investigate or prosecute viola• of up to 1 year in prison, up to a local authorities should be alert to the tions of the copyright law, a condition $25,000 fine, or both for the first of• threat posed by this new type of bucca• which still exists today in some jurisdic• fense. Subsequent offenses could neer. It has been estimated that the tions. Violations of copyright law are bring a prison sentence of up to 2 motion picture industry in America not difficult to investigate or prosecute, years, a fine of up to $50,000, or both. alone is losing as much as $700 million and frequently such investigations will Title 17, U.S. Code, sec. 509, also a year because of piracy activities. Pri• produce evidence of violations of other provides for the seizure and forefeiture vate business, however, is not the only more serious crimes. of all illegal or infringing copies of films victim of piracy. Governments through• or video cassettes, as well as for the out the world are losing millions of seizure and forfeiture of all equipment dollars a year in taxes, customs duties, used or intended for use in the repro• and other revenues that the pirate sel• duction, manufacture, or assemblage dom pays. of infringing copies.

February 1981 I 13 When an examination is made of opened in Hong Kong. In the United the profits obtained by some pirates in States, the FSO is staffed by former the United States and abroad, it is not FBI Agents, the Paris office is under difficult to understand why organized the direction of a former official of the crime is now interested in film/video French National Police, and the Hong piracy. For example, in 1978, Federal Kong office is headed by a former authorities in New York arrested an official of the Royal Hong Kong Police. individual involved in the shipment of In 1980, additional offices will be illegally duplicated motion pictures to opened in London, England, and South Africa. An examination of rec• Johannesburg, South Africa. ords seized from the film pirate deter• The first order of business for the mined that more than $600,000 worth FSO in the United States was to identi• of pirated films had been shipped to fy the enemy facing the motion picture South Africa during a 7-month period. industry. In 1975, the most visible pi• Since only partial records were ob• rates were those trying to hide behind tained, it was impossible to evaluate the name "film collector." The legiti• the entire piracy operation, but sources mate collector strives to pursue his estimated that the pirate was grossing hobby within the boundaries of the law. at least $3 million a year. Unfortunately, there are many others Mr. Bloeser Recently, Scotland Yard raided a who are not adverse to stealing, illegal• video piracy operation that was a major ly duplicating, or selling film prints to Prosecution for criminal copyright supplier of illegal video cassettes to increase the size of their personal col• infringement can be initiated where the Middle East. Records seized during lection or pocketbook. there is evidence that the film/video this search indicated that the pirates In 1977, the FSO conducted a pirate, without authorization, willfully involved were grossing almost survey of advertisements appearing in sold, rented, duplicated, or exhibited $100,000 a week when they were various film collector publications dur• for commercial advantage copyrighted raided. ing the year 1976, where copyrighted motion pictures. Civil penalties for The massive number of arrests films were offered for sale by " film copyright infringement include either and raids conducted by the FBI in collectors." It was determined that statutory or actual damages. Statutory February 1980, in connection with the more than $60 million worth of films damages as high as $50,000 can be MIPORN sting operation which in• were illegally offered for sale during awarded at the discretion of the court if volved both pornography and film pira• that year. As a result of numerous infringement is found willful. cy, further emphasizes the growing prosecutions during 1975 to 1979, the With growing evidence that orga• interest of organized crime in film/ number of dishonest collectors now nized crime is moving into the film/ video piracy. As profits to the pirate seems to have declined. However, in a video piracy field, stronger measures continue to grow and as the piracy recent collectors publication, both col• are going to be necessary to curtail the market expands, the interest of the lectors and brokers for collectors were spread of this lucrative white-collar organized criminal element throughout offering to sell more than $100,000 crime. Legislation is presently pending the world is expanded. worth of copyrighted motion pictures. before Congress to increase the penal• In 1975, the Motion Picture Asso• A second major category of film ties for criminal copyright infringement, ciation of America (MPAA), a trade pirates involves those individuals en• including making the first offense a association composed of the major gaged in the wholesale shipment of felony under certain conditions and motion picture producing companies, illegally duplicated films, usually in 16• raising the maximum fine that can be became concerned at the mounting mm format, to various countries in the levied. reports indicating the magnitude of the Middle East, South Africa, or South losses to the industry and Government America. tax revenues as a result of worldwide piracy operations. Consequently, the MPAA created a Film Security Office (FSO) in Hollywood, Calif., to act as liaison with law enforcement in devis• ing and improving security measures at all motion picture facilities and to co• ordinate industry efforts to combat film piracy. Thereafter, a branch of the FSO was established in New York, a Conti• nental Film Security Office was opened in Paris, and a Far East Asia Office was

14 I FBI Law Enforcement Bulletin For economic and purely logistical reasons, new films are usually exhibit• ed first in the United States and Can• ada, with other English-speaking countries receiving the films soon after. Films designated for non-English speaking countries are usually re• leased for exhibition at a later date. Because there may be a time lag in the release of films for exhibition in other countries, it is possible that a new film might not reach South Africa for sever• al months after release in the United States. This situation is exploited by the pirate. South Africa has very strict censorship laws, and films that might be acceptable for general viewing in the United States could be banned in South Africa. Theaters are not allowed to operate on Sundays. South Africa has only one government-operated television channel that telecasts only 5 hours a day from 6:00 p.m. to 11 :00 p.m., and government policy requires that on a rotating basis, half of the programs be in the Afrikaans language and half in English. As a result, a tre• mendous market has developed in• volving the rental of 16-mm prints or Seized tapes are reviewed for identification and to video cassettes of motion pictures for ascertain whether the tape includes copyright home use. The pirate is quick to take In the Caribbean and most South information. advantage of this market and supply American countries, television is still very limited, and new motion pictures films and video cassettes that might be forcement authorities in England, may not be shown for months after banned by the government or that may France, Italy, Netherlands, Sweden, Is• being shown in the United States. not yet be legitimately distributed in rael, Australia, Hong Kong, Malaysia, Again , the pirate is only too willing to fill South Africa. Philippines, Fiji, and other countries the demand for entertainment by those A similar situation exists in many have taken aggressive action against who can afford a film projector or video countries of the world where strict cen• film/video pirates with numerous ar• cassette recorder. sorship exists or television and theatri• rests and seizures. There seems to be an insatiable cal entertainment are limited. The In 1979, at least 37 individuals demand for American entertainment Middle East, a major market for pirated were convicted in the United States of throughout the non-Communist world. motion pictures, is another prime ex• copyright infringement and related vio• There have also been reports that pi• ample of this condition. Consumers in lations. Twice as many persons are rated video cassettes have been these areas not only are oil-rich sheiks currently awaiting prosecution for film/ shipped to areas under Soviet jurisdic• who will gladly pay a premium price for video piracy after being arrested by law tion. The pirate who illegally duplicates a new American film but also American enforcement personnel. The FBI and sells to the overseas bla<;k market multinational corporations who have seized more than 12,000 illegal video undoubtedly poses a great threat to hundreds of personnel based at con• cassettes from pirates during 1979. struction sites, oil fields, and other the motion picture industry, as well as facilities lacking entertainment. creating major problems for law en• forcement throughout the world. Film/video piracy is a worldwide problem. The International Criminal Po• lice Organization (INTERPOL), with more than 125 member nations, unani• mously adopted in 1977 a resolution designated to combat motion picture and sound recording piracy. Law en-

February 1981 I 15 Beginning in the early 1970's, In 1979, the average production technology drastically changed the "Film and video cost of a new feature film by a major character of film piracy. The video cas• motion picture company was $8.48 mil• sette recorder in 3/4-inch format, a tape piracy ... are lion for each film. Distribution expenses very expensive machine ordinarily among the fastest can add millions more to the total cost found only in television studios and of a film. History reveals that about one video laboratories, was becoming growing white-collar out of every five films produced actual• more accessible to the pirate and to crimes ...." ly makes a profit or even recovers the affluent collector. Pirates soon production costs. It is, therefore, vitally learned how easy it was to video tape important to the motion picture industry motion pictures from public or pay tele• In October 1979, a Federal district to protect film produced from the filml vision or to make video copies of film court in Los Angeles rendered a deci• video pirate. Revenues diverted to the prints. Formerly, a film pirate would sion in favor of the Sony Corp. and the pirate not only are revenues lost to the have to steal or "borrow" a film long other defendants. In the decision, production company and the Govern• enough to have a duplicate print or which was very narrow in scope, the ment but also adversely affect the fu• negative made by an unscrupulous film court held that video taping copy• ture employment of the thousands of laboratory. Such an illegal duplicate righted programs from public TV for persons involved in the production and would cost about $200. In addition, the private, noncommercial home use is distribution of motion pictures. duplicating process was lengthy and not a violation of copyright law. The Contrary to popular belief, oppor• could only be done in a fairly sophisti• court specifically stated that no deci• tunities for piracy do not usually begin cated laboratory. A blank 3/4-inch vid• sion was being made as to the legality at the studio where the film is pro• eo cassette, however, could be of taping payor cable TV or as to the duced, for normally during the produc• purchased for $24.00 and a video copy legality of taping for others for outside tion of a motion picture there are of a stolen or "borrowed" print could the home. The case has been ap• actually two separate parts to the be made using relatively simple equip• pealed by Universal Studios and Walt film-image and soundtrack. These ment that could be set up in a spare Disney Productions. Obviously, video two parts are not permanently mated bedroom. The only time involved in taping from TV for resale or commer• until production is completed and a film duplicating was the time required to run cial use is a violation of Federal copy• laboratory is designated to make posi• the film through a projector focused on right law. tive film prints, usually in 35-mm for• a video camera which was, in turn, The home video cassette recorder mat, for exhibition in theaters. The film attached to a video recorder. If the film has made it possible for anyone with a laboratory, after producing a specified was 2 hours long, it took only 2 hours TV and a video recorder to become a number of positive film prints, sends to make a video copy which could then pirate. The serious pirate will subscribe the prints to a regional film storage be used as a "master" to make an to cable or pay television to obtain company, commonly known as film ex• indefinite number of other copies. more current films and will purchase change or branch exchange. The film In 1975, the video cassette re• additional video recorders to allow exchange then delivers the films to corder in 1/2-inch format was offered mass production. The dedicated pro• various area theaters for exhibition. to the public at an affordable price, fessional pirate will go one step further In modern times, it has been the causing a wave of video tape piracy. In and develop methods to steal or "bor• general policy of the major motion pic• an effort to stem the tide, Universal row" first-run motion pictures to en• ture studios not to sell their films out• Studios and Walt Disney Productions hance the quality of the product he is right but merely to license or rent them brought a civil suit against the Sony selling. The more current the film, the for exhibition. When a film is licensed Corp. and others to prevent the sale of more demand by the consumer of pi• for exhibition at a theater, the theater video cassette recorders for home use. rated material. owner does not buy the film but merely Another major task facing the FSO rents it for a specified time. At the at its inception involved educating the conclusion of the rental period, the film public and law enforcement to correct is usually returned to a regional film certain misconceptions surrounding exchange for further distribution. The the production and distribution of mo• theater owner does not have the right tion pictures. Without an understanding to sell or duplicate the film he has of the problems inherent in the distribu• rented. He is authorized only to exhibit tion of films, it is difficult to compre• the film under the conditions of his hend the causes for the phenomenal license. growth of film/video piracy in recent years.

16 I FBI Law Enforcement Bulletin After a new film has completed its first-run exhibition in theaters, most motion picture producing companies will authorize the licensing of the film in 16-mm format to the airlines, televi• sion, the military, merchant and pas• senger ships, hospitals, penal institutions, schools and colleges, churches, multinational corporations for use by their personnel in remote or overseas areas, and to various civic groups for what is termed nontheatrical exhibition. Unfortunately, such licens• ing also presents the pirate with a m'yr• iad of opportunities to obtain copies of films for the purpose of illegal duplication. During the last few years it has become more and more common for nontheatrical exhibitors to be licensed films in video cassette format as well as 16-mm prints. These video cas• settes are usually in 3/4-inch size. However, in the case of television li• censes, 2-inch reel-to-reel video tape Film copyright data is entered into in-house is sometimes used. computer. More recently, a number of the major motion picture companies have entered the "home video" market and have authorized the sale or rental of their films in 1/2-inch video cassette format only. A legitimate video cas• sette purchased for home use may not be duplicated or exhibited publicly. As an example, an owner of a bar or restaurant who buys a legitimate video cassette may exhibit the cassette in his home, but he may not legally exhibit that cassette in his bar or restaurant for the benefit of his customers even though there is no charge made for the exhibition. Such exhibition would be legal if proper license were obtained from the copyright holder or authorized distribution company.

Pirated tapes that have been seized are later destroyed.

February 1981 I 17 Similarly, a multinational corpora- Film/video piracy has many faces. United States­sometimes within their tion that buys a legitimate video cas- It could be the enterprising individual own corporate offices­and video tape sette of a copyrighted film may not who rents pirated films or video tapes ex1ensively off television. The pirated legally make duplicates of the cassette to camp or resort managers for the tapes are then shipped to personnel for distribution to overseas personnel, entertainment of their clients. It could abroad. nor may they legally exhibit the cas- be the friendly neighborhood pirate As a part of its extensive effort to sette for the benefit of their employees who rents or sells pirated films or cas- curb film/video piracy, the MPAA has even though no charge is made for the settes to bars and restaurants in his placed warning notices in various trade exhibition. area. publications informing corporate ex- The doctrine of "first sale" is an The pirate who is most accessible ecutives, retailers, electronic dealers, exception to the exclusive right grant- to the public could be a local video construction companies, oil compa- ed to the copyright holder to sell his hardware dealer­the individual who nies, commercial fishermen, and oth- material. If a video cassette or film is sells video recorders, television sets, or ers of the perils of filmlvideo piracy. In legitimately purchased from someone other electronic equipment. Unfortu- addition, the MPAA is currently offering having authority to sell, the purchaser nately, hardware dealers sometimes a $5,000 reward for information leading may then legally resell that particular deal in pirated video cassettes in order to the arrest and conviction of individ- cassette or film, but the purchaser may to promote the sale of hardware. Many uals engaged in piracy. not duplicate or exhibit the cassette or such dealers start out by merely selling Film/video piracy can be likened film publicly. An example of "first sale" video tapes they have purchased from to a disease which has reached epi- would be the individual who purchases a local pirate. They are, in effect, act- demic proportions. The motion picture a copy of a book that has been copy- ing as the retail distributor for the pirate industry is taking all possible preven- righted. The purchaser may resell the who is wholesaling or perhaps manu- tive measures to guard against the book, but he may not legally make facturing. Too often, the video hard- spread of the disease, but law enforce- copies of the book or make a public ware dealer discovers that it is cheaper ment will also have to take all possible reading or other performance of the and more profitable to buy single video punitive measures against the film/ book. copies from the wholesaler to use as video pirate before the disease can be Since the establishment of the master tapes and then make duplicate controlled or eliminated. FBI Film Security Office in 1975, security copies using the equipment in his measures within the motion picture in- store. The dealer then becomes a Certainly all aspects of film/video dustry have been changed and im- manufacturer and the chain of produc- piracy cannot be covered in this article. proved considerably. However, as in tion and distribution continues. However, the Film Security Office of any commercial enterprise, the integ- Piracy could take the form of the the Motion Picture Association of rity of the employees is a determining crew of a fishing boat, an oil tanker, an America, in its function as liaison be- factor in the success of any security offshore oil rig, a cruise liner, or a tween the motion picture industry and system. Despite stringent security and remote construction camp, who have law enforcement, is available to furnish inventory procedures, a dishonest and rented or purchased pirated films or any information or assistance neces- determined employee at a film labora- video cassettes. Perhaps they video sary in combating film/video piracy. tory could devise a method to smuggle taped copyrighted programs from tele- Any questions regarding copyright law, copies of a new film out of the labora- vision for use on their vessels or in copyright status of films, film distribu- tory. A dishonest trucker transporting a their camps instead of legitimately tion, search warrants, availability of wit- shipment of new films from the labora- renting the films from an authorized nesses from the studios, obtaining tory to a regional film exchange could distributor. Such exhibitions would be evidence for prosecution, or any other delay delivery of the film long enough considered for commercial purposes, matters concerning the motion picture for an accomplice to make master and therefore, criminal infringement of industry can be obtained by contacting: video copies of the new films. The copyright. Film Security Office unscrupulous warehouseman at the re- Piracy is engaged in by many Motion Picture Association of gional film exchange or the projection- American multinational corporations America, Inc. ist at a local theater have opportunities for the benefit of their overseas per- Suite 520 to steal films or "borrow" them long sonnel. Some companies buy pirated 6464 Sunset Boulevard enough to make master video copies. material in the United States and ship it Hollywood, Calif. 90028 to their personnel in various underde- (213) 464-3117 veloped countries. Some multination- In New York contact: als buy pirated films or video tapes 522 Fifth Ave. from foreign sources in Saudi Arabia, New York, N.Y. 10036 Kuwait, or the United Arab Emirates. (212) 840- 6161 The more enterprising corporations have set up video laboratories in the

18 I FBI Law Enforcement Bulletin Managing Promotions and Resulting Conflict A Realistic Approach

One significant area that the multi• In both the private and public sec• By NORMAN C. COUNS million dollar criminal justice "industry" tors, promotions and conflict have Special Agent has in common with the private sector historically gone hand-in-hand. Not• Federal Bureau of Investigation is personnel. Both continually strive to withstanding, this paradox will be of Los Angeles, Calif. select and promote the best qualified even greater concern to the middle personnel to positions of increased re• managers and line supervisors of the sponsibility, while safeguarding against 1980's and 1990's, as the post-World losing qualified personnel currently in War II "baby boom" members move line or field positions. Whether one into junior-level supervisory ranks, na• seeks vertical or lateral advancement tionwide. In fact, by 1985, the number in a law enforcement career is an indi• of persons in the 35-39 year-old age vidual decision. Regardless of choice, group may increase by as much as 49 each person will be faced with manag• percent over the 1976 level! 1 In basic ing conflicts resulting from career terms, increasingly competitive promo• goals. tion and retention standards will be There are three general conflict• exacted on the career development of generating areas in the career promo• the upcoming generation of law en• tion process: forcement professionals. 1) Not receiving a desired promo• tion; 2) Receiving a promotion (though undesired); and 3) Receiving a desired promotion.

February 1981 I 19 The Role of Conflict In Promotions Receiving a Promotion It is reasonable to reject the notion "It is reasonable to (But Not Wanting It) that all organizational conflict is inher• reject the notion that In 1972, Paul Diesel studied the ently bad, for competition and conflict problem of unwanted promotions and often benefit the organization. all organizational concluded that management should Auren Uris delineated three types conflict is inherently consider whether given employees of competitive conflicts within the pro• bad, for competition want promotions as part of their selec• motion process: tion criteria. 81n other words, he recom• 1) Conflict between individuals; and conflict often mended an optional "up or out" 2) Conflict between groups; and benefit the program for the management-oriented. 3) Conflict between an individual organization. " Diesel's notion seeks to minimize and his own best record.2 the Peter principle victim who, accord• Uris believes that "conflict" is a matter ing to Peter, " ... tends to rise to his of semantics, and as such, is not de• Failing to Obtain the Promotion level of incompetence." 9 Diesel further sees no wrong in developing a reward structive. "... conflict at work is de• Edward Rosemann categorized system for those people who are con• structive and undesirable. But those who fail to obtain promotions as tent to do a good job where they cur• substitute the word 'competition' for "wandering, withdrawing, wailing, wor• conflict and we have something to talk rently are-those who harbor no rying, and warring." 6 Such character• 3 vertical ambitions. 1o This notion, possi• about." Uris further sees several de• ization may be appropriate in some bly anathema to top management, sirable outcomes of promotional con• instances, but it does overlook a sig• pragmatically acknowledges that not flict: Increased alertness to duty, better nificant minority who eventually suc• team cooperation, and greater respon• ceed despite temporary blockages. every person in the field has the apti• siveness to leadership.4 In many cases, the alert supervi• tude or the desire to aspire to the Machiavelli would no doubt sup• sor will detect both obvious and subtle commander's desk. port the appropriateness of conflict in "trail signs" of subordinates' career The traditional American work the promotion process. He endorsed problems. Without effective feedback, ethic generally presumes the desire for the use of guile and deceit in competi• the conscientious law enforcement greater power and responsibility by the tion and had little concern for conven• person has greatly reduced chances of gainfully employed. There are, never• tional morality. In their study, however, improvement in needed areas. When a theless, many personnel who daily Gemill and Heisler discovered that superior detects unfavorable signals• cope with the problem of doing their "Machiavellianism is significantly cor• "title only" promotions, reduced re• job well, while competing for promo• related with high job strain, low job sponsibility, exclusion from training tions they do not want. For obvious satisfaction, and (lower) perceived op• schools or special assignments-it is reasons, however, they are fearful of 5 portunity for formal control. Morality not necessarily time for the victim to openly expressing their true feelings, aside, use of such tactics are, at best, update the resume, but it is time to as doing so would be construed ad• arguable. Extending this somewhat take control of the deteriorating situa• versely. This fear is augmented by un• jaundiced view, it can be inferred that tion and seek counsel and I or an expla• certainty over what will ultimately tension, conflict, and frustration will not nation for the problem at hand. happen to the individual who dares 11 only affect those "passed over" for After receiving a promotional refuse a promotion. Furthermore, in promotion but will also affect success• passover, a thorough situational analy• some organizations (not limited to law ful promotees who both wanted and sis is in order. At this point, J. C. Urban enforcement), ". . . turning down a did not want their promotions. urges the nonpromotee to resist the promotion is tantamount to telling se• urge to retreat, but to remain flexible in nior management that they made a outlook to best reduce resulting mistake in selecting you for the promo• tion."12 anxiety.1 While there is no easy way to accept and recover from a passover, the anxiety can be reduced by thinking beyond the immediate crisis and by grasping a longer term strategy. Better yet, the passover victim should have already formed a personal contingency plan to help cope with such a crisis in his career.

20 / FBI Law Enforcement Bulletin There are three broadly observ- Getting a Desired Promotion able reasons for voluntarily avoiding "If conducted early With the promotion passover, un- promotions. First, there is complacen- enough, serious career desired promotions, and Peter/Paul cy or a general sense of contented- theories outlined, it is appropriate to ness with the status quo. Second, we planning can help one examine conflict resulting after one re- see insecurity­a lack of self­confi- to anticipate relevant ceives a desired promotion. The con- , dence or even a fear of failure and costs to promotion flict areas include: Selection criteria, resulting loss of self­esteem. Finally, effect on former peers, " trapdoors," the "peaking mentality" can occur. and to weigh the and domestic problems. This, more often observed in senior cost/benefit trade-offs Promotional criteria for the suc- personnel who are professionally con- of whatever path one cessful candidate can be divided into tent, is the desire to stay at a level of has chosen." two areas­covert and objective. The perceived maximum achievement and covert criteria, inherently vague and personal challenge. Here, one feels subjective in nature, includes an offi- that the cost/benefit tradeoffs do not Law enforcement agencies have, cer's demeanor, attitude, personality, warrant continued advancement. in recent years, made a concerted ef- and even spousal influence. Objective The World War II "baby boom" fort to correct this problem by using criteria are easier to define. Gemill and generation of law enforcement person- women and other minorities in increas- DeSalvia have suggested the following nel­those now in their 20's and early ing numbers to fulfill undercover as- be used: 30's­will face similar career decisions signments and in supervision. Every 1) Managerial proficiency; with increasing frequency during the person on a given unit, detail, or squad 2) Public image; and next 2 decades, because: has unique talents that could possibly 3) Political proficiency. 18 "Declining rates of. . . growth and be job­relevant. To be effectively used, In a later study, they found more an ever­increasing number of however, management must first have specific modal indicators of the suc- candidates have heightened the a "bank" that documents the talents or cessful promotee: competition for managerial positions. special skills of its personnel and then 1) Accomplishments; The top of the pyramid is expanding have a willingness to match mission 2) Ability to sell ideas; much more slowly than the needs with available skills. 3) Meets deadlines; middle."13 One's immediate superior plays a 4) College graduate; and In light of the impending career large role in encouraging career devel- 5) Effective communicator.19 "crunch" facing this group during the opment by the subordinate. Too often, Although selection criteria can, 1980's, younger management­oriented supervisors tend to "recognize only the and do, vary with each situation, Ge- police and investigators should train, currently used, and observable, talents mill's general criteria are among the carefully plan, and declare important of their subordinates." 15 In practice, most popularly held notions on the top- career goals to their respective person- this generates conflict as the employee ic of what constitutes promotibility. nel offices to help prevent possible becomes less motivated, more dis- Nevertheless, in both highly competi- midcareer disappointment later on. gruntled, and internalizes such treat- tive profit and nonprofit organizations, The Peter Principle is a driving ment in a way that could endanger his candidates not only will find they must force behind one's experiencing pro- field performance. overcome demanding objective promo- motional stress. In effect, Peter forces The intangible pressure toward tion standards but that there is also a people to strive for and attain positions upward mobility is a central factor gen- certain "X" factor necessary that for which they are not suitable and/or erating promotional conflicts. Healy makes a decisive difference in one's do not want. As a corollary to Peter, stated that "the root of the problem James Healy, in 1973, proposed the may well be the premium society has "Paul Principle": placed on personal advancement."16 "For every employee who arises Upward mobility creates a two­edged above his level of incompetence, sword­it causes conflict when one is there are several whose talents are promoted unnecessarily and/or when not utilized."14 one's career goals are blocked. Pro- motion boards nationwide could well appreciate the following thought as they screen for the next generation's leadership: " . . . the great tragedy. . . is that someone who is good at a job is not allowed to do it; he is promoted by the 'hierarchiological' system into a job he cannot do." 17

February 1981 I 21 career success. Discovering this factor the promotion. In trying to remain "one is, in itself, a source of conflict. Here, "No career path in law of the guys," however, a new promo• the covert selection criteria enter into tee may only create an air of weak the process. Personality characteris• enforcement can be leadership. As a better alternative, tics, such as leadership ability, aggres• without conflict; McClelland suggests the use of "pow• siveness, loyalty, self-confidence, and however, serious er" to be a more effective manager.24 perserverance, can serve as promotion In his study, McClelland noted that "kickers." On this notion, Auren Uris forethought and such "power managers" have fewer found that conflict results even when planning for career conflicts, gain greater maturity, and are one does discover that "X" factor: contingencies may less distracted about their futures. "Yet, as the cards are stacked, reduce job strain and The third area of postpromotion aggressiveness becomes the conflict occurs when the new promo• determining factor for promotion. (As improve career peace• tee discovers that he has stepped into a result) the need to regard one's of-mind." the proverbial "can of worms" that was colleagues as competitors creates a not earlier foreseen. How the new pro• continuing brake on harmonious motee handles this adjustment will set relations." 20 Conflict, then, occurs in selecting the tone for the rest of his tenure, as While today's law enforcement promotional criteria to be used, in striv• subordinates will closely be watching professional must excel in job perform• ing to meet these standards, and final• how their new boss copes with the ance to qualify minimally for any career ly, in any resulting "over-achieving" of problem. 2s Unfortunately, too few de• advancement, another problem lurks• standards. Once promoted, the officer partmental guidelines dictate that full one is sometimes too good to lose to a or supervisor will face a new set of disclosure of relevant information be better position in the organization.21 conflicts in the management of former made to the new promotee: Here again, promotion conflict is a two• peers. "... it is the rare firm which will edged sword. For optimal progress, Conflict may occur when an officer candidly discuss the trapdoors which one need be professional about their (agent, deputy, etc.) leaves a set of its managers tumble through during job, but being "too good" (i.e. "indis• former peers (e.g., classmates, part• their first few weeks or months on pensable") may stifle advancement. ners, etc.) to become their managing the job." 26 Where the important dividing line is superior. This situation is often en• The new promotee WOUld, therefore, between "good" and "too good to pro• countered in law enforcement organi• be well-advised to tactfully sound out mote" depends on both the individual zations which espouse merit promotion his predecessors and coworkers, if and his own detail or department. How• from within. In such instances, not only possible. ever, progressive personnel policies may resentments develop, but the af• A fourth conflict area in the pro• now encourage all employees to maxi• fected individual may be required to motion process occurs when an un• mize their job potential without fear of change his areas of interest, conversa• popular person is selected for the job. career stagnation. Aggressive person• tion, and avocation to accommodate Several valid reasons for such senti• nel officers can effectively monitor indi• the new pressures dictated by the pro• ment include perceived incompetency, vidual achievement and career motion.22 jealousy, fear, or personal dislike. This development, benefiting both depart• The new supervisor may also en• presents an immediate problem to the mental efficiency and employee job counter difficulty in dealing with those appointer or promotion board. In some satisfaction. subordinates who were passed over instances, an unpopular choice can be for the same position. If not dealt with recalled or withdrawn. More frequently, positively, these persons can "pick ar• however, objections are ignored. guments, block proposals, and be• Therefore, appointers should offer un• come obstructive simply out of qualified backing to their selectee to spite."23 To cope with this problem, the counter resistance. Charles Denova new supervisor should quickly strive to proposed several steps as a checklist: create an office atmosphere of impar• 1) Pave the way-check before tiality and objectivity in human rela• hand; tions. 2) Sell the choice; In coping with a promotion, the 3) Show where you stand; " new boss" may fall prey to trying to 4) Clearly back the promotee; and maintain old ties as they were prior to 5) Expect mistakes and ride the waves out. 27

22 I FBI Law Enforcement Bulletin The fifth and final area of concern 22 Victor Howard, " How to Manage Former Equals," International Management, February 1971, p. 43. is the effect of the promotion race on "The intangible " Ibid., p. 44. the candidate's homelife. Recent years 2' D. C. McClelland and D. H. BUrnham, " Good Guys pressure toward Make Bum Bosses," Psychology Today, December 1975, have shown a motivational shift away p. 70. from purely "dollar" work incentives to upward mobility is a .. Cheries R. Day, " Things They Didn't Tell Me About the New Job," Industry Week, July 18, 1977, p. 67. include a broader "quality of life" anal• central factor "Ibid. ysis of the work environment. With 27 Charles C. Denova, "So You've Promoted an generating Unpopular Choice," Supervision, May 1911.. double-digit inflation now a way of life, 2. G. J. Berkwitt, " The Revolt of the Middle promotional conflicts." Managers " Duns Review, September 1969, p. 40 . salary is still important. Nevertheless, .. E. Jerry Walker, " 'Til Business Do Us Part," Berkwitt detected this subtle shift oc• Harvard Business Review, January-February 1976, p. 101 . curring, reflecting changing career val• Conclusion ues within the general work force: The law enforcement profession• "What the middle manager wants is al's climb to job fulfillment carries both not primarily more money-but more costs and rewards. If conducted early meaning to his corporate life. Like enough, serious career planning can the student, he fears being immobi• help one to anticipate relevant costs to lized in a monolithic structure." 28 promotion and to weigh the cost! Receht divorce statistics suggest benefit trade-offs of whatever path one that as the law enforcement profes• has chosen. No career path in law sional climbs the career ladder to enforcement can be without conflict; whatever goals have been set, his fam• however, serious forethought and plan• ily and personal life may suffer. Fortu• ning for career contingencies may re• nately, this problem is now coming duce job strain and improve career under closer scrutiny by concerned so• peace-of-mind. lBI cial scientists. In a recent analysis on

this problem, E. Jerry Walker, writing in Footnotes the Harvard Business Review, ac• 1 Arch Patton. " The Coming Flood of Young knowledged this: Executives." The Harvard Business Review, ". . . the climate of the times, how• September-October 1976. p. 20. 2 Auren Uris. " Conflict or Smooth Sailing?" ever, seems to presage a change in International Management, June 1971 . p. 42. 'Ibid. those corporate policies that tacitly ·Ibid. deny the existence of the. . . fam• • G. R. Gemill and W. J. Heisler, " Machiavellianism as a Factor in Managerial Job Strain, Job Satisfaction, and ily." 29 Upward Mobility." Academy of Management Journal, Domestic conflicts constitute a March 1972, pp. 54-55. • Edward Rosemann, " The Woes of Being significant influence on the promotee's Unpromotable," International Management, June 1972, p. morale, attitudes, performance, and 55. 7 J. C. Urban, " Why Wasn't I Promoted?" Supervisory even job retention. Historically, the Management, March 1970. • Paul M. Diesel, "Not Everybody Wants a family relationship has always been Promotion." Industry Week, April 17, 1972, p. 50. subjected to sacrifices required by a • l. J. Peter and R. Hull, The Peter Principle: Why Things Always Seem to Go Wrong, (New Yorl<: William law enforcement career. Additionally, Morrow Co., 1969), p. 7. these relationships have often been 10 Diesel, ibid. " John J. Mullally, "Is it Un-American To Turn Oown a underestimated as a field performance Promotion?" Industry Week, December 6, 1976, p. 44. " Ibid., p. 47. factor. There is currently more reason " E. Kirby Warren, etal, " Case of the Plateaued for optimism, however, as increasing Performer," Harvard Business Review, January-February 1975, p. 30. research is conducted on employees' .. James H. Healy, "Why Not a Paul Principal? homelife and its significant role in on• Business Horizons, December 1973, p. 51 . 15 Ibid., p. 53. the-job performance. 15 Ibid., p. 54. " " Theory of Executive Incompetence," Duns Review, July 1969, p. 30. .. 11 G. Gemill and D. Desalvia, " The Promotion Beliefs of Managers as a Factor in Career Progress: An Exploratory Study." Sloan Management Review, Winter 1977, p. 78. . ,. Gemill and Desalvia, "How Managers View Promotions" SAM Journal, Summer 1977. 20 Aure'n Uris, "00 Bosses Play Promotion Lottery?" International Management, November 1972, p. 48. " Ibid.

February 1981 / 23 A Crime Prevention Program for the Handicapped

By William E. Perry. Jr. the question sowed the seed. Why not Numerous agencies associated with the handicapped were consulted, Deputy Commissioner develop and incorporate into the on• and a nationally known fast-food chain Community Affairs going crime prevention program mate• contributed money to defray part of the Police Department rials that would address the handi• cost. As the program took shape, it New York, N. Y. capped public? Initially, staff members met with was seen as having a twofold purpose. representatives of the major agencies Primarily an information and education in the city serving the handicapped to program directed toward the handi• After more than a year of planning seek their opinions on the idea. Not capped, it would also serve to heighten and organization, the New York City only was their response most enthusi• police awareness and sensitivity when Police Oepartment (NYPO) inaugurat• astic, but they also volunteered their dealing with this special public. Thus, ed its crime prevention program for the technical assistance with the project. the program encompasses materials handicapped on June 2, 1980. The At that point, two officers of the crime and services for handicapped persons, idea for this specially designed pro• prevention section were assigned to as well as training and information for gram first took hold when a local crime develop the program, in addition to police officers. prevention officer, working with an continuing their regular duties of con• agency for the blind in his precinct, ducting seminars and security surveys, Components of the Program asked the NYPO's crime prevention lecturing, producing and distributing In an effort to reach as many of section if materials were available that safety material, and media liaison. the handicapped as possible, several could be distributed to the blind. At that items were incorporated into the pro• time, the answer was "no!" However, gram. 1) Large Print Booklets-Two Robert J. McGuire booklets are available. "A Guide to Deputy Commissioner Perry Police Commissioner Crime Prevention for Blind and Visually Impaired Persons" (English and Span• ish versions) contains tips on how to avoid becoming a victim of a crime, describes the court process, and gives information on available victim serv• ices. "An Ounce of Prevention" (Eng• lish and Spanish versions) is directed toward physically handicapped per• sons and sets forth safety tips, advice on equipment care, legal rights, and available government and private agency services. In addition, these two editions have been printed in Braille and have been recorded on audio cas• sette tapes in English and Spanish for those who do not read Braille. The books and tapes are available in spe• cial and public libraries.

24 I FBI Law Enforcement Bulletin 2) Crime Prevention Lectures-On Also, the auxiliary police offers its personal satisfaction and pride in request, officers of the crime preven• members a voluntary 8-week course in accomplishment have already been tion section offer crime prevention and basic sign language, which is taught by reaped. The program has been so well• crime resistance techniques to handi• an auxiliary police sergeant. received by the handicapped commu• capped groups. 9) Telephone Information Serv• nity that the funding source has offered 3) Security Surveys-Crime pre• ice-The New York Society for the more money to expand the program. vention officers will conduct security Deaf has volunteered the use of its 24• Above all, the program demonstrates surveys, on request, of homes and hour telephone service to enable po• the NYPD's concern with meeting the businesses of handicapped persons. A lice officers to obtain information when special needs of the many different report of the officer's findings, ordinari• assisting the handicapped. publics that compose this great city. ly given to owners in writing, will be FBI given to blind persons on cassette Conclusion tape. The development of the program was timely. More and more, handi• As the mayor of New York spoke, an interpreter 4) Special TelephoneS-In the for the deaf communicated his words in sign lobby of police headquarters, a special capped groups are bringing their spe• language, while an oral interpreter sat in the telephone for the handicapped, provid• cial needs and demands to the gov• audience communicating with lip readers. ing wheelchair access and sound am• ernment's attention. An example of the plification, has been installed. In national and worldwide notice now be• addition, other such phones are being ing taken is the fact that the United installed in various public buildings Nations has designated 1981 as the throughout the city. International Year of Disabled Persons. 5) Training for Police Officers• The deputy director of the United Na• Police officers are instructed on how to tions' Division for Economic and Social deal with hearing-impaired persons Information, who learned of the pro• with whom they might have contact. gram, has indicated the desire to dis• The training material consists of a vid• seminate the material developed by eo tape dramatization and narration, the New York City Police Department plus an instructor's guide. Copies of to other agencies around the world. this training material, prepared by the Even though the program is still in crime prevention section in collabora• its early stage, rich rewards in terms of tion with the police academy, have been distributed to precincts and spe• cial units throughout the city. 6) Recruit Instruction-Six hours Ouring opening ceremonies, Police Commissioner McGuire presented an award to one of the of classroom instruction on how to deal outstanding contributors to the program. The with the handicapped has been incor• plaques awarded were made by handicapped students, 16 to 21 years of age. porated into the curriculum for recruits at the police academy. Visual aids, demonstrations, and role-playing tech• niques are used. 7) Sign Language Courses-The New York Society for the Deaf award• ed four scholarships to police officers to learn sign language, and the Cabrini Medical Center offered a free course in basic sign language to police officers. 8) Auxiliary Police-The auxiliary police of the New York City Police Department admit handicapped per• sons into membership and employ their services in radio communications and administrative and clerical duties.

February 1981 / 25 THE PRIVACY PROTECTION ACT OF 1980

By Larry E. Rissler One of the more significant contri• been to establish rules and procedures Special Agent butions of the United States to the for the collection of evidence by execu• Legal Counsel Diwsion science of government is the concept tive branch officers. This has largely Federal Bureau of Investigation of separation of powers. The American been done through interpretation of Washington, D. C. Constitution created three distinct the fourth amendment's prohibition branches of Federal Government, against unreasonable searches and each with specified duties and respon• seizures. Law enforcement officers of other sibilities. In the criminal law context, Put another way, it has been the than Federal jurisdiction who are the role of the executive branch is responsibility of the legislature to de• interested in any legal issue discussed undisputed. It is to investigate, identify, termine what constitutes criminal con• in this article should consult their legal and prosecute those suspected of duct and the task of the judiciary to adviser. Some police procedures criminal activity. The traditional role of establish how investigations and pros• ruled permissible under Federal the legislative branch has been in mat• ecutions of offenders must proceed. constitutional law are of questionable ters of substantive criminal law, while However, from time to time, Congress legality under State law or are not the judicial branch has decided issues has asserted itself in the procedural permitted at all. relating to procedural criminal law. criminal law area and has sought to That is to say that Congress has direct the means by which law enforce• sought to identify those forms of per• ment officers obtain evidence.1 Sever• sonal conduct which should be subject al recent statutes are illustrative. to criminal sanction. This process, of course, is accomplished by enacting criminal laws and affixing punishments to them. The role of the courts has

26 / FBI Law Enforcement Bulletin For example, in 1976, as part of The search warrant was executed the Tax Reform Act,2 Congress estab• by four police officers who searched lished a detailed procedure for Federal desks, filing cabinets, photo labs, and officers to follow when attempting to waste baskets located within the news• obtain tax return information in nontax• paper's offices. Locked drawers and related criminal investigations. Two rooms were not opened. No photo• years later, in the Right to Financial graphs were located. Approximately 1 Privacy Act,3 Federal investigators month later, the Stanford Daily and were prohibited from examining de• members of its staff filed a civil suit in positors' financial records maintained Federal court against the officers who by banks unless one of five separate had executed the warrant, the chief of procedures is used. (An earlier Su• police, and several other officials, al• preme Court decision had found no leging that the search had violated the constitutional bar to the government's fourth amendment's prohibition against access to financial records. 4) And last unreasonable searches and seizures. year, two proposals were introduced The trial court and court of appeals which, if passed, would have created ruled in favor of the Stanford Daily, procedures governing access to medi• reasoning that the fourth amendment cal records maintained by hospitals " forbade the issuance of a warrant to and toll records kept by telephone search for materials in possession of Special Agent Rissler companies.s one not suspected of crime unless In the provisions of yet another there is probable cause to believe. . . law, the Privacy Protection Act of 1980 that a subpoena duces tecum would be (hereinafter Act), Congress has legis• impracticable." 71t was further held that lated the means by which State and where the innocent object of a search Federal officers obtain criminal evi• is a newspaper, first amendment inter• dence from the news media. ests are involved, and a search warrant is permissible only if the government Background can clearly show that important materi• The Privacy Protection Act was als will be destroyed or removed and a Congress' response to the U.S. Su• restraining order would be futile. preme Court's 1978 decision in The U.S. Supreme Court later re• Zurcher v. Stanford Dai/y.6 Zurcher in• versed. In an opinion joined by six volved the execution of a search war• members of the Court, it held that the rant against the premises of an fourth amendment does not bar the innocent third party, the student news• use of a search warrant for premises paper of Stanford University, in an at• occupied by a person who is not a tempt to seize photographs of a demonstration which had occurred ear• lier at a local hospital. Several officers had been injured by the demonstrators, and it was believed the Stanford Daily, which had covered the incident, pos• sessed photographs which could as• sist in identifying the officers' assailants. No members of the paper's staff were suspected of criminal conduct.

February 1981 / 27 ". . . the purpose of the Act is not merely to protect materials used to prepare an existing or anticipated publication, but also those prepared for the purpose of publication. . . ."

suspect in the crime under investiga• The Zurcher decision was not a What Is Protected? tion. As long as probable cause exists departure from established law. It did The Act affords protection to two to believe that evidence is located in not extend the government's authority distinct categories of potential evi• the place to be searched, a search to search and seize to new sources of dence. One is work product materials, warrant may be properly issued. The evidence. On the contrary, the Court the other documentary materials. Work majority reasoned that evidence might characterized the lower court's deci• product is defined as materials (other be lost if the law required subpenas to sion restricting the use of search war• than contraband, fruits, or instrumental• obtain evidence in the hands of third rants against third parties as ities) created in anticipation of commu• parties. As stated by the Court, "the "remarkable," without "direct authori• nicating such materials to the public. subpoena duces tecum, offering as it ty," and a "sweeping revision of the They must be possessed for the pur• does the opportunity to litigate its valid• fourth amendment."'0 Nevertheless, pose of public communication and in• ity, could easily result in the disappear• the opinion was quickly criticized by clude mental impressions, conclusions, ance of the evidence, whatever the many segments of the press. One opinions, or theories of the person who good faith of the third party." 8 leading newspaper denounced it as "a prepared or authored them. 13 Obvious The Court also found that the first step toward a police state."" An• examples would be notes and drafts of fourth amendment's preconditions for other urged immediate action by Con• an article made by a reporter or the the issuance of a search warrant (prob• gress to "enact added protections for photographs sought in the Zurcher able cause, need to describe specifi• individual privacy and press freedom."'2 case. To qualify as work product, the cally the place to be searched and Within days, legislation was introduced material need not have been prepared things to be seized, overall require• to limit warrant-authorized searches of or authored by the person in posses• ment of reasonableness), when ap• the premises of those engaged in ac• sion. Thus, unsolicited material, such plied with "particular exactitude," are tivities protected by the first amend• as a report revealing government cor• adequate to safeguard the first amend• ment. A month later, congressional ruption made by a "whistle blower" ment interests which are endangered hearings began to determine the im• and mailed to a newspaper for possible when the place to be searched is a pact of Zurcher. And in 1980, Con• publication, would constitute work press office. gress passed Public Law 96-440, the product. The opinion concluded by noting: Privacy Protection Act of 1980. It was Because the purpose of the Act is "The (f)ourth (a)mendment does not quickly signed by the President and not merely to protect materials used to prevent or advise against legislative became effective on January 1, 1981, prepare an existing or anticipated pub• or executive efforts to establish against the United States. (It will take lication, but also those prepared for the nonconstitutional protections against effect 1 year later against State or local purpose of publication, materials quali• possible abuses of the search governments.) Because the Act cre• fy as work product even though the warrant procedure. . . ."9 ates a civil cause of action for dam• plans to publish are subsequently ages against the United States, a State abandoned. For example, assume an or local government, and certain State author prepares research notes and law enforcement officials who violate writes a paper which is later rejected its provisions, all local, State, or Feder• for publication. The notes and article al officers should be familiar with its would still receive work product protec• language. tion because they were gathered and Stated briefly, the Act makes it prepared for the purpose of dissemina• unlawful for Federal, State, or local tion to the public. officers investigating a criminal offense to search for or seize "work product" or "documentary" materials pos• sessed by a person in connection with, or with a purpose of, disseminating a public communication in or affecting interstate or foreign commerce.

28 / FBI Law Enforcement Bulletin Conversely, the fact that an item Documentary materials would ap• Thus, if the possessor himself is violat• was published does not necessarily pear to include data and materials sup• ing the law and the materials relate to mean that materials used to prepare it plied to or collected by a person who that violation, a search warrant is per• will receive work product protection. If intends to draft a public communica• mitted. It should be noted, however, the materials were originally held for tion. It is likely they would have been that this exception does not apply if the purposes other than publication, they routinely prepared by other individuals offense of which the possessor is sus• would not be considered work product. with no intent to publish and thus con• pected is the receipt or possession of Examples would be data used to pre• tain no "impressions, conclusions, the materials sought. The reason for pare business records or documents opinions, or theories of the person not including receiving and possessing required to be filed with the govern• . . ." 15 intending to make the public offenses in the exception is that with• ment and which later happen to be communication. out it "reporters' investigations of such published. Another example would ex• areas as government corruption where ist if a citizen was photographing an When Is a Search Warrant Permit· whistle blowers' evidence is so impor• event when a crime occurred, and he ted? tant" 18 would be chilled. (Note, howev• later sold the photographs to a news• Despite acknowledgment in the er, that if the receipt or possession of paper or magazine. The photos would Act's legislative history that officers oc• the documents constitute an offense not qualify as work product because at caSionally may be uncertain whether under an existing espionage law, a the time they were taken the citizen did items sought constitute work product search warrant would be permissible.) not intend to disseminate them to the or documentary materials,16 the dis• Second, a search warrant for work public. (They may, however, be pro• tinction between the two appears to be product materials may be obtained if tected as documentary materials.) very important. Because work product there is reason to believe that an im• Documentary materials are de• involves the creative, mental process, mediate seizure is necessary "to pre• fined as materials (other than contra• the Act affords it a higher level of vent the death of, or serious bodily band, fruits, or instrumentalities) upon protection than documentary materials injury to, a human being." 19 The stand• which information is recorded. It in• by imposing a general no-search rule. ard "reason to believe" as used in this cludes printed materials, photographs, When the items sought are documen• exception is less demanding than the motion picture films, negatives, video tary materials, a subpena-first rule is "probable cause" standard required and audio tapes, and mechanically, generally applicable. for the issuance of a warrant, but high• magnetically, or electronically recorded The no-search rule for work prod• er than mere suspicion.20 cards, tapes, or discs 14 held by a per• uct materials simply means that gov• It should be emphasized that son in connection with the purpose of ernment officials may not search for or these are the only two conditions making a public communication. seize work product unless one of two which will justify the issuance of a The precise contours of the dis• conditions exist. First, a search warrant search warrant for work product mate• tinction between work product and may be obtained if "there is probable rials. If an attempt to obtain documents documentary materials will ultimately cause to believe that the person pos• with a subpoena duces tecum is un• have to be defined in the courts. But sessing such materials has committed successful, even in the face of a con• for now, a reasonable reading of the or is committing the criminal offense to tempt citation, a search warrant is Act indicates that work product in• which the materials relate...." 17 nonetheless prohibited. cludes notes or other materials made When the items sought are "docu• by an author himself containing his mentary materials," the Act creates mental impressions, conclusions, or four exceptional circumstances which opinions, made while preparing a pub• would permit issuance of a search war• lic communication. It would also in• rant. In addition to suspect and life-in• clude the communication itself prior to danger exceptions identical to those publication or broadcast. outlined for work product materials, the Act creates two other "subpena-first" exceptions. Under one, a warrant may

February 1981 I 29 " . . the Act makes it unlawful for Federal, State, or local officers investigating a criminal offense to search for or seize 'work product' or 'documentary' materials ...."

be obtained if there is reason to be• The effect of this broad language is to Using the facts of the Zurcher case as lieve that the advance notice given by reach almost everyone engaged in first an example, it would be the staff mem• a subpena would result in destruction amendment pursuits. Obviously includ• bers of the Stanford Daily who could or concealment of the documentary ed are employees of the institutional bring suit, not the demonstrators to materials sought,21 An example would press (newspapers, radio, and televi• whom the evidence related. It is also be if a reporter had previously obstruct• sion stations), but the Act is broad clear that a violation of the Act would ed an investigation or announced that enough to also include academicians, provide no basis to a criminal defend• he would destroy the materials rather authors, filmmakers, and photogra• ant for the exclusion of evidence. 29 than comply with a request or sub• phers. The only limitation is the re• pena. Others might exist if there was a quirement that the person possess the Who Can Be Sued? close personal relationship between materials with the purpose of making a The Act allows a person aggrieved the suspect and the possessor of the public communication for dissemina• by a search and seizure in violation of documents or if the suspect himself tion in (or affecting) interstate or for• the Act to sue for damages. If the had access to the materials sought. eign commerce. 24 Although the term search was conducted by Federal offi• And finally, a search warrant is permis• "public communication" is not defined cers, the suit will be against the United sible if the subpena process has been in the Act, it is the intent of Congress States. 30 A suit against the Federal em• tried, the documentary materials have that the phrase include any communi• ployee personally is not provided for by not been produced, and either all ap• cation distributed to the general public the Act. Because of this and the fact peals have been exhausted or a further or available upon simple request. 25 the Act provides for no exclusionary delay would threaten the interests of This would clearly cover publications sanction, in order to deter Federal in• justice. 22 (If a warrant is sought under by major newspapers or magazines, as vestigators from violating its provisions the interests of justice exception, the well as books, and electronic broad• with impunity, the Act requires the At• possessor of the materials must be casts. It would also appear to include torney General to establish procedures allowed to file an affidavit challenging publications by small town newspa• for an administrative inquiry after a de• the issuance of the warrant if he be• pers, professional journals, and possi• termination that an employee has vio• lieves the materials are not subject to bly "political campaign materials or a lated the Act. 31 A provision for an seizure.) press conference." 26 administrative sanction against such It should be noted that no criminal employee is mandated, if warranted. Who Can Bring Suit? sanction attaches for violating the Act. The exact mechanics and sanctions of The statute's protection is ex• Instead, a civil cause of action for dam• this procedure will not be known until tended to all who possess "a purpose ages 27 (in Federal court) has been cre• the Attorney General's guidelines are to disseminate to the public a newspa• ated for a "person aggrieved" by a formally adopted. Again, this provision per, book, broadcast, or other similar search in violation of the Act. Actual is applicable only in regard to Federal form of public communication. . .."23 damages are specified by the statute, officers. with a minimum amount of $1,000 to be awarded. 28 The court may also award reasonable attorney's fees. By giving civil relief only to a "person ag• grieved," the statute effectively elimi• nates as a potential plaintiff the criminal suspect incriminated by the seized evidence. This is consistent with the bill's purpose of protecting only innocent third parties who are en• gaged in first amendment activities.

30 / FBI Law Enforcement Bulletin When the violation is by an officer It does not affect searches and sei- 20 See Report of the Committee on the Judiciary, U.S. House of Representatives, No. 96­1064 al 8. (Hereinafter employed by a State, and that State zures at the borders or points of entry House Report.) has waived its sovereign immunity from into the United States in order to en- 21 Acl, Sec. 101(b)(3). " Id. at Sec. 101(b)(4). civil suit, the action must be brought force the customs laws. It does not '3 Id. at Sec. 101 (a). .. Id. at Sees. 101 (a), 101 (b). The authority for Con- against the State,32 However, if the have any effect on searches con- gress 10 regulate Siale and local law enforcement is Ihe State has not waived its sovereign im- ducted by private individuals. Nor does commerce clause, U.S. Cons\. Art. I, Sec. 8. The Supreme Court has held that this clause empowers Congress to munity, the action will be against the it affect seizures by government offi- regulate activity which has an effecl on interstate or State officer personally. 33 1n that event, cials which arise out of civil matters, foreign commerce. See Perez v. Uniled Slales, 402 U.S. 146 (1971). There is little doublthatthe dissemination of the Act specifies that the employee such as seizures of assets to satiSfy information affects interstate commerce. may assert as a defense his reason- debts or taxes owed to the government • 5 House Report at 6. "Id. able good faith belief in the lawfulness or examinations of records of regulated ., Acl, Sec. 106(a) . •B/d. at 106(1). of his conduct. 34 However, if the suit is businesses. .o ld. at 106(e). against the government (Federal, Finally, the Act itself does not reg- 3· 1d. aI106(a)(1). 31 Id. al 106(g). State, or local), the government may ulate the seizure of evidence from in- 3. Id. al 1 06(a)(1). not assert as a defense the reasonable nocent third parties, such as doctors, 33 Id. at 106(a)(2). 3. Id. at 106(b). 35 good faith belief of its employee. In lawyers, and clergymen, who are not 3'1d. at 106(c). other words, strict liability attaches engaged in first amendment activities. 38ld. at 1 06(a)(1). 37 Id. at 107(c). when the defendant is the government. However, the Act does require the If the violation was committed by an Attorney General to issue guidelines employee of "any other governmental governing such seizures by Federal unit," the suit shall be against that officers. government. 36 "Any other governmen- tal unit" includes a municipality, coun- ty, territory or possession, the District Footnotes of Columbia, or the Commonwealth of , A major example is Tille III of Ihe Omnibus Crime 37 Puerto Rico. Control and Safe Streets Act of 1968 (18 U.S.C. Secs. 2510­2520), in which Congress regulated wiretappings and electronic eavesdropping on a Federal level. 01 Conclusion course, legislatures have traditionally directed many of the technical aspects of Ihe seizure of evidence, such as the It is important to emphasize what issuance, execution, and return of search warrants. See, the Privacy Protection Act of 1980 e.g., Fed. R. Crim. P. 41. • 26 U.S.C. Sec. 6103(i)(1). does and does not do. It does not 312 U.S.C. Sees. 3401­3422 . prevent the government from obtaining • Uniled Slales v. Miller, 425 U.S. 435 (1976). • See S. 503 and H.R. 5935, 96lh Cong. 2d Sess. documentary evidence possessed by (1980); H.R. 8215, 96th Cong. 2d Sess. (1980). B 436 U.S. 547 (1978). the news media. It simply establishes ' Id. at 552. the means by which that evidence may BId. at 561. Old. at 567. be obtained. As noted earlier, officers ,. Id. at 534, 538. may make simple requests or seek " 8oslon Globe, 124 Cong. Rec. H5664 (daily ed. June 15, 1978). subpoenas duces tecum for the pro- 12 The New York Times, June 6, 1978, at A 16, Col. 2. duction of the desired materials. It 13 Act, Sec. 107(b). '·Id. at Sec. 107(a). does prohibit the use of search war- "Id. al Sec. 107(b)(3). ,. See Report of the Committee on the Judiciary, U.S. rants against individuals engaged in Senate, No. 96­874 at 10. (Hereinafter Senate Report.) first amendment pursuits who are not " Acl, Sec. 101 (a)(1). '8 Senate Report, at 11. suspected of criminal conduct unless '0 Act, Sec. 101 (a)(2). one of four narrowly drawn exceptions exist. It does not prevent the issuance of a search warrant for contraband, fruits, or the instrumentalities of crime.

February 1981 / 31 RBY THE ~rm: 121 ~

Photograph taken 1975.

Gary Warren Schmidt Description Caution Gary Warren Schmidt, also known Age ...... 33, born June 21, Schmidt hijacked an aircraft at as Gary Chester Bruton, "Slim." 1947, San gunpoint and should be considered Bernardino, Calif. armed and dangerous. Wanted for: Height ...... 6'8". Crime aboard aircraft-Hijacking; Weight ...... 225 pounds. Notify the FBI Kidnaping; Possession of weapons Build ...... Thin. Any person having information aboard aircraft; Use of firearms during Hair ...... Brown. which might assist in locating this commission of a felony. Eyes ...... Hazel. fugitive is requested to notify Complexion ...... Medium. immediately the Director of the Federal The Crime Race ...... White. Bureau of Investigation, U.S. Nationality ...... American. On November 24, 1975, Schmidt Department of Justice, Washington, Occupations ...... Rock band allegedly hijacked a privately chartered D.C. 20535, or the Special Agent in promoter and aircraft en route from California to Charge of the nearest FBI field office, truckdriver. Texas. He reportedly forced the pilot at the telephone number of which Remarks ...... In the past has gunpoint to fly and land on a beach in appears on the first page of most local worn Fu Mexico, where cargo was subsequent- directories. Manchu­type ly removed from the aircraft. mustache. A Federal warrant was issued on Classification Data: FBI No ...... 495 490 L2. December 11 , 1975, at San Diego, NCIC Classification: Calif. 187004151418C0131512 Fingerprint Classification: 18 M 1 R 010 14 Ref: 1 L 3 W 000

Left index fingerprint.

32 I FBI Law Enforcement Bulletin

u.s. OOVERNMENT PRINTING aPPlCl!. 1981 a - 334-562 Change of ~ORCEMENT Address rBI Not an order form BULLETIN

Complete this form and return to: Name

Director Title Federal Bureau of Investigation Address Washington, D.C. 20535

City State Zip ...... Homemade Pipe Shotgun

An uniformed Seattle police officer approached a subject who was carrying what appeared to be a steel pipe. (See fig. 1.) The "pipe" was later discovered to be a homemade .12• gage shotgun, loaded and ready to fire. The weapon is fired by hitting the spring-loaded firing pin into the shell cap. (See fig. 2.)

Figure 1

Figure 2 U.S. Department of Justice Official Business Postage and Fees Paid Penalty for Private Use $300 Federal Bureau of Investigation Federal Bureau of Investigation Address Correction Requested JUS-432

Controlled Circulation Rate

Washington, o.G. 20535

Interesting Pattern The pattern shown is classified as an accidental whorl with an outer tracing. The location of the third delta above the pattern makes it unusual. The tracing is determined by tracing from the farthest left delta to a point opposite the farthest right delta, omitting the delta on top of the loop.