“Those who are capable of tyranny are capable of perjury to sustain it.”
So, this has been a few days in coming, but I wanted to get some other groundwork laid down before I started trying to put this together. It may be a work in progress page, and I may move it somewhere else later on if I need to.
When I started planning for going out to stream protests, I had trouble figuring out what my rights were. It turned out it didn’t take much research to get some good info to start with. Obviously, the First Amendment of the Constitution is the first starting point:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The Founding Fathers knew the risk of one person controlling the narrative of the story that is news. Back then, printing was rare and expensive, but really, anyone could write down their thoughts, as long as you were literate. In the future, a lot of things have changed, and of course, the law changes with that. But the fact that freedom of the press was so important that it made it as the first amendment is telling.
The news is a lucrative business, and even with a decline in print media it’s still an industry that’s worth more money per year than I will ever see in my lifetime. In 1945, however the court heard the case of the Associated Press v. United States, where the AP violated antitrust laws by trying to control the flow of news from their reporters to others outside their organization. At the time, Justice Hugo Black wrote:
“The First Amendment … rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public … Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not”.
The way I personally read it, this helps prove that anyone, big or small, can access the news and retell it from other people. It helps prevent any one news outlet from taking over the story, and even today, services like AP, NPR, Washington Post and the New York Times trade news back and forth and with other and with other outlets.
One of the arguments that I’ve most often seen online is “just because you have a camera doesn’t make you a reporter”. Which is patently false. Another case, the Obsidian Finance Group, LLC v. Cox, is another good indication. In that case, which was heard in the same jurisdiction Portland is in, a blogger maintained blogs that were alleged to be defamatory to the Obsidian Finance Group. While the court -did- find that there was defamation involved, and ruled in favor of the plantiffs, an important distinction was made during the appeals process. Two different statements by Judge Andrew Hurwitz:
“And, although the Supreme Court has never directly held that the Gertz rule applies beyond the institutional press, it has repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers.”
“The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings or tried to get both sides of a story. … In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue — not the identity of the speaker — provide the First Amendment touchstones.”
Both of these statements simply reinforce that one does not need to be a member of a traditional media source to be considered press. The jump from a blogger to a livestreamer, considering the medium was in it’s infancy at the time, is a much smaller jump than the jump comparing the Oregonian to, say, this site.
In the current climate that we’re dealing with, the Portland Police Bureau itself is the final nail in the coffin of that argument. In a public press release they made just two days ago, the PPB made it very clear that citizen press -is- indeed press.
“With the advent of livestreaming and social media, there are many more independent journalists in the field, in additional to traditional newspaper and TV reporters.”
With all of these pieces of information put together, I really can’t see how there’s any argument that those of us out there -are- press.
The issue with the Portland Police
Even if you ignore the current climate associated with the BLM movement and attempts to address the inherent systemic racism in the system, there are still many concerns with what is happening right now, and I did more work to try to get details. And I did find a few useful tidbits. the PPB’s Directives Manual is freely available online, and the two policies that I did the deepest dive on were 0631.35 and 0635.10. At the time of writing, both are ‘under review’, and likely for good reason. Ideally, all the policies should be under review at this point.
This is a fairly generic policy about how the police are supposed to interact with media, with such things as 2.4 (Members will not prevent members of the news media from broadcasting […] if they have lawful right to be at the location), but section 3.1 is the one that particularly interests me.
At the scene of a major incident, press/media access may be restricted on scene or in airspace above until the member in charge or their designee(s) gives permission. Admittance to a crime scene on public property may also be limited if press/media presence would unreasonably obstruct or interfere with the investigation (e.g., gathering evidence, interviewing witnesses and victims, etc.), hamper the carrying out of police duties (e.g., handling an emergency situation), or jeopardize the safety of any person.
Of course, this policy is not written to address the kinds of situations that come up like dealing with spontaneous protests, but it does give some guidelines. Essentially, if the area is of active risk to police work, there should be a place for press to be able to be placed where they can do their jobs while not interfering with the police’s job. It’s logical to follow (and we will dive deeper soon) that as soon as the scene is ‘safe’, that press be allowed back in. Section 3.4 reinforces the idea as well:
In hazardous areas members of the press/media may enter at their own risk, after a reasonable level of order or control has been established, and with the approval of the member in charge or their designee(s). At the scene of an emergency operation (e.g., fire, hostage situation, explosion, cave-in, etc.), members may deny or limit access to members of the press/media if their presence creates an unsafe situation for themselves or others.
Here is when things get a little dicey. Of course, these protests almost always start with civil disobedience (violating noise ordinances, blocking the street, non-violent protest), but at some point, someone is prone to do things that I personally would call stupid. Setting off fireworks, throwing rocks, things that do cause risk to life and limb. The question of where that line is is subjective, and I’m not even going to address it here. But when that happens, the police, of course, have a policy for that. The basic rules are listed in section 4.2 for spontaneous demonstrations, which more often than not are the ones that end up being called ‘unlawful’. Section 8 addresses communicating with the crowd, generally using Twitter and a loudspeaker or the L-RAD (Long-Range Acoustic Device).
Section 9 addresses the approval process for using items such as tear gas, flashbangs, and rubber bullets. Surprisingly, this -still- isn’t the point that I’m interested in. Section 11 is where things start getting close. Section 11.1 details, in addition to other things:
Members may be justified in detaining individuals engaged in civil disturbance after providing a lawful order to disperse followed by a reasonable opportunity to comply with that order.
Section 12.4 is where things really start to heat up, though. It states:
Media or legal observers will not be arrested solely for their role in observing, capturing, and/or reporting on demonstrations or events. Members will not interfere with media or legal observers performing their respective functions, so long as they are performed in a safe manner and in compliance with police orders. However, such persons must comply with all police orders and maybe subject to arrest for failure to do so.
This is where things start getting interesting. The press is allowed to do their duty, as long as they are ‘in compliance with police orders’. But what ‘police orders’ are they not in compliance with? Usually orders to vacate a specific area. Let me use the protest that was declared unlawful the night of 14 Jun, 2020 as an example. Police were arresting a tresspasser on Justice Center property when someone allegedly threw an incidiary device in the direction of police, and it exploded within feet of them. I can conceed that at that point, it was a significant risk of threat to police or civilians, and dispersal may well be appropriate. However, the incident was limited to only that one location, one block in the entire city. The police, in a Twitter post, stated:
SW Naito Pkwy to SW 10th Ave and SW Lincoln Street to SW Harvey Milk Street is closed
For those who are unfamiliar with Portland, Naito Parkway to 10th Ave is 10 blocks long, and Lincoln Street to SW Harvey Milk Street is about 19 blocks in length. Approximately one hundred ninety blocks of the city were closed off because of one person with a firework. Anyone, protester, media, or unrelated civilian is expected to leave that entire area immediately or risk being subject to use of force or arrest. Many people (rightly so, in my view) have viewed this as a very broad overreach of their powers. Additionally, section 5.3.2 of the very same policy states:
The Bureau shall de-escalate its response when it is safe and tactically feasible to do so.
Of course, ordinary citizens and individual press are not privy to their operation communications (they use encrypted channels, for obvious reasons), but simple logic says that once the immediate threat is addressed, the response is stopped. The city is opened up as much as possible, and remaining protesters are free to return. In actuality, we have seen police, for hours after, chasing protesters all over town to prevent them from regathering. In the last week, I have yet to actually see press releases announcing that an escalation has been released.
What this means to me
At the end of the day, this causes real concern that the police are attempting to clean large portions of the city out of anyone that can attempt to hold them accountable for their actions because of a lack of documentation. All of this in a world where many are already criticizing police for excessive brutality. If the press leaves and protesters don’t, it’s only barely hypothetical to imagine what the police may do to innocent people.
What are my rights?
Like so many have been saying for years, you have no obligation to talk to the police. The ACLU also has a very good list of additional rights and tips. Remember that Oregon is a single party recording state, so you don’t need anyone’s permission to record audio. They may not demand access to your photographs and video without a warrant, and they may not delete your data (if they abide from that or not, sadly, is another issue). To help protect your data, it’s recommended to remove unneeded personal data from your phone and disable biometric access tools like fingeprint scanners and facial ID. Adding a password or pattern is also better than a pin often times as well. Recent Android phones add a Lockdown option to quickly disable biometrics, provided you can activate it before the police tackle you. A similar feature is available for Apple users as well
As always, you have a 5th Amendment right to not speak to the police. Even if you didn’t do anything. The police’s job is to arrest people. An ‘admission’ of something can be twisted to mean something unintended and make things harder for you. Get names and badge numbers. And I’m sure there are many legal organizations available to assist if needed.
We can get through this, if we all work together.
Ben Smith Murder Trial date set, victims and community prepare for the long haul
All court media and documents we have available can be found on our information page here.
Today was the first time Benjamin Smith, accused of a murder charge, four attempted murder charges and four assault charges was seen in court since his March indictment. Two previous status hearings had gone on without him due to medical issues requiring him to be hospitalized in OHSU for an extended period of time.
Today he appeared virtually from the Inverness jail, where a person familiar with him stated he’s “aged like 10 years in 3 months”. He told the court clerk that he was still unable to get out of bed without assistance and was wheelchair bound for the duration of the hearing.
When the hearing started, Judge Greenlick, who has been appointed to oversee all matters in this case through trial, offered to delay the hearing to allow for Mr. Smith to be transported to appear in person, which he declined.
With the preliminaries out of the way, discussions started on setting trial date, noting the fact that he legally has a right to a trial within 120 days. His public defender, Mr. Sarre, requested a trial date in the April to May 2023 timeline.
The DA, Mr. Vasquez (who successfully prosecuted Alan Swinney in his assault trial last year) said April was an option, but strongly requested a trial be held much sooner, in no small part because the victims in the case all desire this case to be finished and closed sooner rather than later, and dragging this out for the next year would cause undue pain to them.
Unfortunately for the state, after the defense pointed out the slate of other murder cases he was defending, including cases resolving in June, August, September and November of this year, the judge agreed to the April 2023 timeline. It was pointed out that the state is prosecuting a 2 year old murder case in February of 2023, and the 13-14 month timeline for Mr. Smith’s trial is actually in line with the normal timeline for trials similar to this. Mr. Sarre’s full docket, combined with the innumerable court delays caused by the COVID pandemic combined to thwart the will of the victims.
From there, questions were raised about the special needs for this trial, including the use being approved of what is called a ‘special jury panel’. We’re uncertain at the moment if there’s a special definition for it in Oregon, but generally, this is a special jury that is made up of people who are more knowledgeable to address complicated issues or serious felonies [FindLaw Legal Dictionary]. The jury selection process is expected to also take longer than normal due to the nature of the crimes as well as the broad media attention being brought to the case.
The state has confirmed that 99% of the discovery has been provided to the defense already, absent some transcripts related to one of the victims that is still being processed, meaning that discovery concerns seem to be less of a concern than other cases we’ve covered here. The DA also anticipates not needing to bring forward ‘404(3) evidence’, a reference to statute where past actions aren’t allowed to be used as evidence of these charges. To borrow from the Alan Swinney case, this would be akin to a number of the social media posts Mr. Swinney made suggesting his premeditation to assault racial justice protesters, causing most of his posts to be disallowed as evidence to the jury.
At the current moment, the timeline is looking to be something along these lines:
- Status hearing on July 22nd at 1:30 PM
- Normal pre-trial motions by the defense due Sept 9th
- Response from the state due Sept 23rd
- Hearing on any of these motions on Oct 14th
- The Jury special panel is scheduled for April 7th in the morning
- ‘In Limine’, or pre-trial motions, the afternoon of the 7th
- The trial itself, scheduled for weekdays from April 17th to May 5th of 2023.
Of course, these dates are subject to change, and we will be keeping an eye out for any updates that may come about in the meantime.
Public Records Law applies to District Coalition, Judge announces Friday
It’s time for taxpayer-funded organizations doing the public’s business to provide transparency and be recognized for what they are – outsourced government bureaus.
History was made that day in the mostly empty courtroom. A lone lawyer sitting at the bar, court staff in attendance. Everyone else, even the judge, was appearing remotely. But it did nothing to dampen the impact of the ruling the judge was about to make that Friday afternoon.
Summary judgement in favor of the plaintiffs in the Hiller-Webb and Tyvoll v Southwest Neighborhoods, Inc (commonly known as SWNI) case confirmed that the district coalition was, for purposes of state public records law, a quasi-government entity and was required to turn over particular records to Ms. Hiller-Webb and Ms. Tyvoll.
As Shannon Hiller-Webb (she/hers) stated in a press release: “I am proud to represent my neighborhood and advance the goals of residents of SW Portland. I became concerned when, as a SWNI board member tasked with financial oversight, I was unable to gain answers to questions and even when submitted as a formal records request, SWNI repeatedly denied access. My intent with this lawsuit is to ensure transparency for taxpayers as the primary funders of District Coalitions who were created to serve us all.”
Associate counsel and public records attorney Alan Kessler (he/him) concurred: “It’s time for taxpayer-funded organizations doing the public’s business to provide transparency and be recognized for what they are – outsourced government bureaus.“
Marie Tyvoll (she/hers) and Shannon Hiller-Webb’s stories may have only started in the last few years, but as attorney Rian Peck (they/them) detailed in a masterclass of research and legal writing, the history behind the public records issues and the need for such transparency went back longer than even this author’s been alive, to the very founding of SWNI and the form of neighborhood/district engagement with City Council as a whole.
District Coalitions and the history of SWNI
All the way back in 1974, the state of Oregon passed SB 100, creating a statewide ‘land use planning program’, requiring cities to plan for 20 years of growth in new households and jobs. In response, the City of Portland created the Office of Neighborhood Associations, creating a conduit for residents to ‘influence land use decisions in what had previously been the political realm of the real estate industry and downtown business interests’ (Historical Context of Racist Planning: A History of How Planning Segregated Portland, p11). Unfortunately, in the first five years, while 60 neighborhood associations had been created, the power dynamics of white affluent residents having all the effective power remained.
An additional 15 years later, in 1994, City Council adopted a new plan to address issues that had emerged in the previous 1980 Comprehensive Plan, a move designed to shift away from the simple expansion of single family residences in favor of multi-family zoning. The plan was anticipated to be completed by 2005, but was quickly beset by similar failures of unequal treatment as had been seen in the Portland living situations since it’s inception.
The first community plan study outside of Central City was the Albina area, where the African American community had historically resided, and had already been torn apart by the 1948 Vanport flood and interstate expansions in more recent years, resulted in the city attempting to ‘boost economic development and bring investment and improvements to Albina’, using it as an excuse to rezone significant portions of single family residential to higher-density zoning to help meet the projected growth goals. The result, as we know well now, was to set the stage for gentrification and push the already struggling residents out of the area, into the outer Eastern Portland and Gresham areas. Author Karen Gibson of “Bleeding Albina: A History of Community Disinvestment” explained it this way: “The occupation of prime central city land in a region with an urban growth boundary and in a city aggressively seeking to capture population growth, coupled with an economic boom, resulted in very rapid gentrification and racial transition in the 1990s.”
From 1990 to 2016, over 4000 households and more than 10,000 African American residents would be displaced from their homes as a result.
In 1996, when planners attempted to produce a similar plan for the Southwest Portland area, they faced two distinct issues. The lay of the land and various environmental issues would reduce the effects that land use planners could use in increasing the housing density in the area. But more importantly, the local community was enraged at the idea of redeveloping single family neighborhoods, and as the residents tended to be well-educated, higher income, typically white, and more organized and well-resourced than the residents in the Albina and Outer Southeast area, they succeeded in not only pushing back on almost every attempt to increase density in the area, but their work managed to derail the entire 1994 plan, forcing a shift from community planning to ‘area planning’, trying to target work in higher density areas.
SWNI, a non-profit organization founded in 1978 specifically to fill the need the City had asked be filled with the creation of the Office of Neighborhood Associations, played heavily in this tale, the 94 volunteer led neighborhood associations coordinating with 7 ‘district coalition offices’ to work with the city’s Office of Community and Civic Life to provide input from the communities on how the citizens feel about particular events in their areas. In 2020, when this lawsuit was filed, SWNI was one of five privately run district coalitions, the remaining two run by city managed offices.
However, SWNI was no stranger to controversy of it’s own. In addition to their successful attempts to derail attempts to increase living density in the southwest area, they had also been caught up in a 2011 embezzlement case where former SWNI employee Virginia Stromer eventually pled guilty to stealing well over $130,000 of SWNI funds dating back to at least 2004, an organization that in court records claims annually about 85% of their funding comes directly from the cities Civic Life department (most of the remaining 15% came from Portland’s Bureau of Environmental Services and West Multnomah Soil & Water). The embezzlement case, of which restitution has only seen a few hundred dollars of the over $200k owed, is something SWNI seemed to actively want to ignore ever happened, even going so far as board members who were active in both 2011 and 2020 hiding it’s existence from newer board members.
In the Present Day
The background helping bring the story to the current times, Ms. Hiller-Webb joined SWNI in 2019, as a representative of one of the local neighborhood organizations, where she jumped in with fervor learning the shorthand language 20+ year veterans of the board had been using, and working to try to make the organization more equitable and justice-minded (efforts that were ultimately denied by the broader board). This was around the same time that she first met Ms. Tyvoll, at a July 2019 SWNI organized picnic, where they connected over a desire for more inclusivity and equity in the area. During this time she started noticing financial information that, as a business owner herself, didn’t make sense, and when she started asking questions, board members began acting strangely, referring to it as ‘magic money’ and refusing to justify it’s purpose or use. January 2019 board minutes confirmed that excess taxpayer funds were being transferred to different accounts to avoid having to return unused grant money (taxpayer funds) to the City, causing the questions of mismanagement of funds to deepen drastically and quickly.
It was then that Ms. Hiller-Webb was urged to connect with former SWNI Board member and attorney Jim McLaughlin (he/his) who gave in depth information about the 2011 embezzlement case, an event which had apparently caused the ouster of not only Ms. Stromer, but also the forced his own departure from the organization, the victim of a slander campaign for his attempts to uphold the law. Ms. Hiller-Webb doubled down on the public records method of trying to get information to better learn about what, if any, mismanagement of funds was happening, when COVID began interfering with the day-to-day running of all of our lives.
When the Paycheck Protection Program (PPP) was released by the federal government, SWNI, knowing full well that it’s funding through the city was not impacted at all as a result of the pandemic, applied for funding, over the objections and with complete opacity to the numerous board members who asked to see the application both before it was submitted as well as after. In a declaration by Ms. Hiller-Webb, she stated that “SWNI created a Citizen Engagement Allocation Program, with the idea that it would move taxpayer-provided funds from Civic Life to a grant program that would create an artificial COVID hardship.” SWNI eventually received over $66k in federal funds, a loan which was later forgiven by the federal government. As Ms. Hiller-Webb went on to state “SWNI had more than sufficient funds to continue its operations, whereas many local businesses back in April 2020 – right after the physical distancing restrictions went into effect – had lost all their revenue stream, could not pay their employees, and were on the verge of and indeed some did shutter their doors permanently.” A move which has historically disproportionally affected BIPOC owned businesses.
SWNI created a Citizen Engagement Allocation Program, with the idea that it would move taxpayer-provided funds from Civic Life to a grant program that would create an artificial COVID hardship.Shannon Hiller-Webb, Court Declaration
This misrepresentation, combined with complaints made to Commissioner Jo Ann Hardesty by Ms. Hiller-Webb and Ms. Tyvoll among others, in her position as lead of Civic Life, caused the city to withhold funds to SWNI pending a forensic audit. That audit, completed November 2020, came back with ‘conclusions of troubling financial mismanagement’, and in March 2021, the city officially struck SWNI from it’s list of district coalition offices, replacing it with a government run version, modeled on the two existing offices the city had already been fielding.
Public Records, Private Organization
Public records provided under state records laws may seem like strange bedfellows for a non-profit like SWNI, but as Ms. Tyvoll testified to the court, it was something that SWNI had done regularly as part of their normal business, in fact one of her earliest interactions with SWNI being responding to a public records request about an event in the area. There was no pushback from SWNI, and the neighborhood organization that was under SWNI was ‘required’ to do the same, per Ms. Tyvoll. And it was part of that confusion that reigned when, as part of the process for appealing denied public record requests, Former Multnomah County District Attorney Rod Underhill initially denied to intervene in the case. Even when he eventually realized this was a question over a District Coalition and not merely a neighborhood organization, he agreed to a hearing over it, but still didn’t quite recognize the power dynamics that existed between the district coalitions and the city, ruling that, from his understanding, because SWNI did not directly control government policies, they were not a governmental body and thus were exempt from public record laws.
A win for SWNI, to be sure, but a short lived one, as in the few months after the case was appealed to the Multnomah District court, the forensic audit finding disturbing mismanagement and the eventual defunding of SWNI by the city all but gutted SWNI’s ability to exist. They no longer held the official position as being a district coalition, and no longer had the grant funding from the city to maintain the neighborhood associations that used to be under it. Those functions were all now handled by the newly formed city-run office of Southwest Community Services . In court, SWNI tried to highlight how, because of the defunding, there was no question that they were not a government agency and in no way responsible to respond to public records requests.
Attorney Rian Peck, representing Ms. Hiller-Webb and Ms. Tyvoll, however, disagreed, pointing out specifically how the simple move of defunding and removing SWNI from the list of Portland District coalitions was enough to make the organization effectively useless, writing in their motion for summary judgement: District Coalitions are not only the City’s mouthpiece to the people about what the City has planned for their neighborhoods, but they are also the neighborhoods’ representatives and advocates to City officials,” going on to state “If SWNI’s functions were not essential to the City’s unique form of governance, the City surely would not take it upon itself to perform the exact same functions in SWNI’s absence.”
If SWNI’s functions were not essential to the City’s unique form of governance, the City surely would not take it upon itself to perform the exact same functions in SWNI’s absence.Rian Peck motion for summary judgement
They also pointed out how, when the case was before the DAs office, SWNI relied on the City Attorney to defend them, a move that was ‘logically inconsistent with its position that it is an independent, private entity’, as well as the use the same public records law to extort money from the city for records that the city required from them, an incident where SWNI violated city standards to try to gain an additional $30,000 in revenue.
None of this was lost on the judge, apparent by the prepared notes it seemed he read from when he announced summary judgement in favor of Ms. Hiller-Webb and Ms. Tyvoll. While declaring SWNI, at the time the records request was filed, a public body for purposes of record request laws, he declined to extend the same designation to all privately operated district coalitions, citing their lack of presence in the courtroom. He did feel that his ruling would be relevant to them, however. He also ruled that SWNI improperly witheld the records requested, and ordered that they be given to Hiller-Webb and Tyvoll within 30 days, as well as awarding attorney fees.
In a prepared press release announcing the victory, lead attorney Rian Peck stated “Even though SWNI purported to represent its constituents’ interests, it refused to be transparent. Government without oversight is dangerous. I am proud to represent two of SWNI’s constituents in their hard-wrought fight for transparency.”
Ms. Tyvoll agreed, stating: “Access to public records is imperative for residents to hold City of Portland officials and those they fund and task with quasi-governmental roles accountable. My records request to SWNI was ignored and this allowed them to perpetuate and enable what the City of Portland Bureau of Planning and Sustainability (BPS) determined funded “…the historical, structural, and institutional racism that has created deep racial inequities that continue to harm Black, Indigenous, Latinx, and other communities of color.”(Letter introducing the Historical Context of Racist Planning: A History of How Planning Segregated Portland). The City of Portland provided SWNI with 85% of their annual funding and has effectively perpetuated and enabled white supremacy for 40+ years.”
The City of Portland provided SWNI with 85% of their annual funding and has effectively perpetuated and enabled white supremacy for 40+ years.Marie Tyvoll, Press Release
For an organization that’s had a historical record of misusing well over $400,000 in local and federal taxpayer money since the beginning of the 21st century, using it’s position to prop up predominantly white homeowner neighborhoods at the expense of the rest of the city, it seems that this may well be the closing of one of the final chapters of the organization. Even so, to look at SWNI’s website, they currently make no effort to acknowledge their status as an unofficial district coalition, effectively burying their heads in the sand and hoping the controversies will one day blow over.
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