SAN FRANCISCO - OCTOBER 29: Commuters wait to board a Bay Area Rapid Transit (BART) train during rush hour on October 29, 2009 in San Francisco, California.
Most of the 18 speakers at a three-hour public hearing Wednesday criticized BART's decision to temporarily cut off cellphone service at several San Francisco stations Aug. 11 because of concerns there would be a violent protest.
Michael Risher, a staff attorney for the American Civil Liberties Union of Northern California, told the transit agency's board of directors that BART's cellphone network "is a designated public forum that you can't cut off except in very limited circumstances."
Risher asked, "Do we want to have a society where the government is in a position to shut down cellphone service because a few people might use it for disruptive purposes?"
But a man who identified himself only as Gary H. said that to claim that BART violated passengers' free speech rights by temporarily halting cellphone service at a few stations is a "specious" argument and "trivializes our First Amendment rights."
He said, "I urge the board not be distracted by phony claims of First Amendment rights."
The Aug. 11 protest was planned by groups such as No Justice, No BART who have criticized the transit agency's police officers for fatally shooting Charles Hill, a transient man, at the Civic Center station in San Francisco the night of July 3.
BART police said Hill was armed with two knives and a broken bottle and was attacking them.
BART Interim General Manager Sherwood Wakeman said Police Chief Kenton Rainey recommended temporarily cutting off cellphone service and he approved the action "based on myconcern that the demonstration would include illegal activity which would be a serious threat to the safety of our patrons."
BART Director Gail Murray said the demonstration "was not planned to be peaceful" because protesters planned to chain themselves together and be arrested.
Murray said if the transit agency had not taken decisive action, service might have been severely disrupted and passengers might have been trapped in the Transbay Tube.
BART directors were briefed on the decision to temporarily halt cellphone service and approved the action but several directors said today that they have second thoughts about it in the wake of the public's outcry and legal opinions cited by the ACLU.
Director Joel Keller said, "I would have asked more questions" if he had seen those legal opinions beforehand and in the future he would lean against authorizing similar cellphone shutdowns.
Director Robert Raburn said he thought the move "was a prudent action" but warned that "we should avoid a police state."
Although the board was consulted about the decision, Director Lynette Sweet said, "As a board member it really is frustrating that I will be held responsible for a staff decision."
She said, "It shouldn't be made that way again."
Board President Bob Franklin said BART directors and staff will now formulate a formal policy on when the transit system will cut off cellphone service in underground stations.
Franklin said BART officials will consult with the agency's recently-formed citizens' police review board and free speech groups before bringing the proposed policy to a board of directors meeting in two to four weeks.
Although 18 people spoke at the meeting today, Franklin said he had expected a larger turnout.
"I was surprised that there were not as many protesters today and it was less raucous than I expected," he said.
A protest Monday night over the cellphone cutoff and Hill's death temporarily shut down the Civic Center and Powell Street stations in San Francisco and resulted in about 40 people being arrested.
Franklin said he hopes the arrests "shift the tide" against protesters who have disrupted BART service, but demonstrators are threatening to have another protest next Monday.
Asked if he expects more arrests then, Franklin said, "I would assume so."