1 BARBARA J. PARKER, City Attorney, CABN 069722 2...2 days ago · BARBARA J. PARKER, City...
Transcript of 1 BARBARA J. PARKER, City Attorney, CABN 069722 2...2 days ago · BARBARA J. PARKER, City...
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JOINT CASE MANAGEMENT STATEMENT Case No. 00-cv-4599 WHO
BARBARA J. PARKER, City Attorney, CABN 069722 RYAN RICHARDSON, Special Counsel, CABN 223548 DAVID PEREDA, Special Counsel, CABN 237982 BRIGID S. MARTIN, Special Counsel, CABN 231705 One Frank H. Ogawa Plaza, 6th Floor Oakland, California 94612 Telephone: (510) 238-3601 Facsimile: (510) 238-6500 Email: [email protected] Attorneys for CITY OF OAKLAND JOHN L. BURRIS, CABN 69888 Law Offices of John L. Burris Airport Corporate Centre 7677Oakport Road, Ste. 1120 Oakland, California 94621 Telephone: (510) 839-5200 Facsimile: (510) 839-3882 JAMES B. CHANIN, CABN 76043 Law Offices of James B. Chanin 3050 Shattuck Avenue Berkeley, California 94705 Telephone: (510) 848-4752 Attorneys for PLAINTIFFS (Additional Counsel on Next Page)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION DELPHINE ALLEN, et al. )
) Plaintiffs, )
) v. )
) CITY OF OAKLAND, et al., )
) Defendant(s). )
) )
)
Case No. 00-cv-04599 WHO JOINT CASE MANAGEMENT STATEMENT Date: September 22, 2020 Time: 3:30 p.m. Courtroom 2, 17th Floor Hon. William H. Orrick
Case 3:00-cv-04599-WHO Document 1392 Filed 09/15/20 Page 1 of 49
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JOINT CASE MANAGEMENT STATEMENT Case No. 00-cv-4599 WHO
ROCKNE A. LUCIA, JR., CABN 109349 Rains Lucia Stern St. Phalle & Silver Attorneys & Counselors at Law 2300 Contra Costa Boulevard, Suite 500 Pleasant Hill, CA 94523 Telephone: (925) 609-1699 Facsimile: (925) 609-1690 Attorneys for OAKLAND POLICE OFFICERS ASSOCIATION
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i JOINT CASE MANAGEMENT STATEMENT Case No. 00-cv-4599 WHO
TABLE OF CONTENTS
PLAINTIFFS’ STATEMENT ......................................................................................... 1
PLAINTIFFS’ CURRENT POSITION .............................................................................. 1
I. TASK 2 (TIMELINESS STANDARDS AND COMPLIANCE WITH IAD
INVESTIGATIONS) ........................................................................................................... 1
II. TASK 5 (COMPLAINT PROCEDURES FOR IAD) AND TASK 30 (EXECUTIVE
FORCE REVIEW BOARD) ................................................................................................ 3
III. TASKS 24 (USE OF FORCE REPORTING POLICY) & 25 (USE OF FORCE
INVESTIGATIONS AND REPORT RESPONSIBILITY) .............................................. 10
IV. TASK 41 (USE OF PERSONNEL ASSESSMENT SYSTEM AND RISK
MANAGEMENT) ................................................................................................................ 11
V. TASK 45 (CONSISTENCY OF DISCIPLINE POLICY) ............................................ 18
CONCLUSION .................................................................................................................... 22
THE CITY’S STATEMENT ............................................................................................ 24
OVERVIEW ......................................................................................................................... 24
I. THE CITY’S ONGOING EFFORTS TO REDUCE RACIAL DISPARITIES ........... 24
A. Internal Race and Equity Work ............................................................................. 24
1. Academy and Field Training Update ............................................................... 25
2. OIG Audit of the Department’s Promotional Consideration Process ............ 26
B. Reducing Racial Disparities in Policing ................................................................ 27
II. THE CITY’S RESPONSE TO THE IMT’S PAWLIK REPORT ................................. 29
A. Training and Development of New Policy ............................................................. 30
B. CID and IAD Investigations ................................................................................... 32
C. Executive Force Review Boards (EFRBs)—TASK 30 .......................................... 33
D. City Leadership Response ...................................................................................... 34
III. STOP DATA AND PAS/RISK MANAGEMENT—TASKS 34 AND 41 .................. 35
A. Stop Data .................................................................................................................. 35
B. Risk Management/Vision Database ....................................................................... 37
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ii JOINT CASE MANAGEMENT STATEMENT Case No. 00-cv-4599 WHO
IV. INTERNAL AFFAIRS TIMELINES—TASK 2 ......................................................... 38
V. FORCE INVESTIGATION AND REPORTING—TASKS 24 AND 25 ................... 39
A. Type 32 Use of Force Reporting Update ................................................................ 40
B. Significant Improvements in Body-Worn Camera Activation and
De-escalation Efforts ..................................................................................................... 41
VI. RECENT PROTESTS ................................................................................................... 42
CONCLUSION ................................................................................................................... 44
THE OPOA’S STATEMENT .......................................................................................... 45
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PLAINTIFFS’ STATEMENT
PLAINTIFFS’ CURRENT POSITION
The Independent Monitor for the OPD has issued two status reports (the 68th
and 69th Reports) since the last Case Management Conference statement was filed.
OPD remains out of full compliance with six tasks that were out of compliance as of
the last Case Management Conference Statement: 1. Task 2 (Timeliness Standards
and Compliance with IAD Investigations – not in compliance); 2. Task 5 (Internal
Affairs Division (IAD) Complaint Procedures – in partial compliance); 3. Task 24
(Use of Force Reporting Policy – in partial compliance); 4. Task 25 (Use of Force
Investigations and Report Responsibility – in partial compliance); 5. Task 30
(Executive Force Review Board—out of compliance); 6. Task 34 (Stop Data – in
partial compliance); and 7. Task 45 (Consistency of Discipline – in partial
compliance). Four of these tasks (Tasks 2, 24, 25, and 30) were in full compliance as
recently as January of 2019. OPD did attain compliance with Task 26 (Force
Review Board) during the most recent IMT reporting period. Task 41 (Use of
Personnel Assessment System and Risk Management) remains deferred while OPD
transitions to Vision, its new risk management database.
Plaintiffs’ will outline their concerns regarding specific NSA tasks, as well as
developments that impact multiple NSA tasks, below:
I. TASK 2 (TIMELINESS STANDARDS AND COMPLIANCE WITH IAD
INVESTIGATIONS)
Task 2 requires that the Internal Affairs Department of the OPD complete
internal investigations in a timely manner, and had been inactive between 2015
and 2019. However, the 62nd IMT report determined that “IAD is having difficulty
meeting its required timeliness standards”, and OPD was found no longer in
compliance with this task. (62nd IMT Report, p. 2)
As noted in Plaintiffs’ portion of the February 2020 Case Management
Statement, Plaintiffs’ received an email more than a year ago (dated August 12,
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2019) from then-Chief Kirkpatrick stating that “we do not have a backlog anymore
in IA.” This email was incorporated in Plaintiffs’ CMC statement at the time, and
Plaintiffs’ took the statement at face value. Plaintiffs noted, in closing, that we
“hope that the City will address why this backlog was created in light of the City’s
agreement to abide by Task 2 and what permanent steps will be taken going
forward to comply with Task 2 in the future.” (August 2019 CMC Statement, page
3)
Contrary to the representations made by Chief Kirkpatrick in August 2019,
OPD remains out of compliance with Task 2. However, even though OPD has not
yet completed internal investigations at the IAD and Division Level in accordance
with the very timeliness standards established by OPD, general trend lines are
pointing in the right direction. For example, OPD policy requires that “at least 85%
of Class I misconduct investigations and at least 85% of Class II misconduct
investigations must be completed within 180 days to be considered timely.” Per
DGO M-03, Class I offenses “are the most serious allegations of misconduct and, if
sustained, shall result in disciplinary action up to and including dismissal and may
serve as the basis for criminal prosecution.”
The IMT reviewed 45 Class I misconduct cases during the period covered by
the 69th IMT Report, and determined that 31 of these cases were completed in a
timely manner. This represents a 69% timely-completion rate that is, per the IMT,
"still far below compliance.” (69th IMT Report, page 3). This figure is admittedly a
substantial improvement over OPD’s staggering 38% timely-completion rate during
the period covered by the 66th IMT Report, but falls short of the 85% compliance
threshold required by the NSA. This is progress, but more obviously needs to be
done.
Similarly, of the 69 Class II cases reviewed by the IMT during the period
covered by the 69th IMT Report, 58 were in compliance with established timelines.
This represents an 84% compliance rate with IAD policy and is barely short of the
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85% compliance threshold mandated by the NSA.
It appears that OPD is making real progress toward once again achieving
compliance with Task 2. Nevertheless, Plaintiffs’ remain baffled by IAD’s inability
to complete investigations within the 180-day time limit for the last year,
particularly when the OPD was in compliance with this task for so long that it
became inactive for four years. (Indeed, the first monitoring team to oversee
progress with the NSA recommended a 90-day requirement for completing
investigations. Plaintiff’s concurred with the Oakland Police Department’s request
for a 180 day timeline, and this was ultimately codified into Task 2 at OPD’s
explicit request.) That said, it is clear that IAD has reversed the slide, and is on the
cusp of once more attaining compliance with this all-important Task. Plaintiffs’
attorneys will continue to monitor this situation, but commend OPD – and
especially the supervisors within IAD – for apparently getting the Department back
on track.
II. TASK 5 (COMPLAINT PROCEDURES FOR IAD) AND TASK 30
(EXECUTIVE FORCE REVIEW BOARD)
OPD had been in partial compliance with Task 5, which pertains to
Complaint Procedures for the Internal Affairs Division, since the 21st Reporting
Period (May 2015). On March 23, 2016, the Court issued an Order indicating that
irregularities and potential violations of the NSA occurred in IAD investigation 15-
0771. The Order noted that the investigation raised issues of accountability and
sustainability of compliance. The IMT’s most recently assessed this task in the 64th
IMT Report, published on October 10/25/2019. This report deferred Task 5
compliance “based on the provisions of the March 23, 2016 Order, our general
concerns, and the findings of our forthcoming analysis of the Department’s
investigation of the officer-involved shooting of March 11, 2018”. (64th IMT Report,
p. 9). The IMT most recently assessed Task 5 compliance in their 67th Report,
submitted April 2020, and stated that this Task remained deferred based on the
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IMT’s “general concerns, and the findings of [their] forthcoming analysis of the
Department’s investigation of the officer-involved shooting of March 11, 2018” (67th
IMT Report, page 9). This report, the “Report of the Monitor/Compliance Director
regarding the shooting of Joshua Pawlik by Oakland Police Officers”, was issued on
August 17, 2020, and pertains to multiple tasks, and will be addressed in full below.
The totality of the Monitor’s findings in the Pawlik matter shocks the
conscience, and the document details appalling “incompetence, deception, and
indifference.” (August 17, 2020 Pawlik Report, page 50) Chief Warshaw’s wide-
ranging and comprehensive report details a cascading series of leadership failure,
from the highest levels of elected City officials, including the Mayor, to the Chief of
Police and the Department itself. This multi-system failure is completely
unacceptable after over seventeen years of the Negotiated Settlement Agreement.
According to this report, Chief Kirkpatrick pre-judged the shooting of Mr.
Pawlik and concluded that it was justified even before investigations were complete.
To wit, the report found that “Chief Kirkpatrick prematurely assessed the shooting
on the evening of its occurrence, when she told the Monitor that Mr. Pawlik had
‘pointed’ a firearm at the officers, and that the shooting ‘looks good.’ Her expressed
predispositions of that evening never wavered, even as the investigations moved
forward”. (August 17, 2020 Pawlik Report, Summary finding #2, p. 49). Further,
“the Department attempted to provide a justification for the shooting through its
initial press releases describing the incident.” (August 17, 2020 Pawlik Report,
Summary finding #3, p. 49), and “the Chief also sought early opinions, prior to the
completion of the investigations, from at least 15 others, including sworn and
nonsworn personnel, in order to quickly vindicate the officers and avoid placing
them on administrative leave.” (August 17, 2020 Pawlik Report, Summary finding
#10, p. 49)
The Monitor also determined that Chief Kirkpatrick took affirmative steps to
manipulate the investigation process by discussing her views of the shooting with
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prospective Executive Force Review Board candidates. Specifically, the Monitor
found that Chief Kirkpatrick “acted improperly” and “corrupted that very process.”
(August 17, 2020 Pawlik Report, Summary finding #14, p. 50). That very same
EFRB was also found to have taken what officers asserted “at face value, without
challenge, and without regard for any inconsistencies that could have been resolved
through a close examination of available video evidence.” (August 17, 2020 Pawlik
Report, Summary finding #15, p. 50). It is therefore unsurprising that OPD
remains out of compliance with Task 30 of the NSA.
Chief Warshaw also determined that OPD’s Criminal Investigations Division
(CID) and its Internal Affairs Division (IAD) also conducted incomplete and
deficient investigations. (August 17, 2020 Pawlik Report, Summary finding ##4, p.
49).
Specifically:
• CID investigators and IAD investigators consistently accepted the
involved officers’ accounts that Mr. Pawlik pointed his weapon at them
– despite video evidence to the contrary. (Summary finding #5, p. 49)
• CID and IAD investigators failed to use the video footage of the
incident to challenge the officers’ statements. (Summary finding #6, p.
49)
• The Chief accepted the flawed logic that, since the video neither proved
nor disproved the officers’ statements, the officers’ versions had to be
accepted as true. (Summary finding #7, p. 49)
• The CID Commander improperly inserted himself into investigative
interviews. (Summary finding #8, p. 49)
• The CID investigation, which included leading questions from the CID
Commander and others, failed to reconcile inconsistencies in the
officers’ statements (Summary finding #9, p. 49)
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Layered on top of these many damning findings, the Monitor also found
persistent, institutional problems within the Department that go to the very heart
of the Negotiated Settlement Agreement. More than two years elapsed between the
shooting of Mr. Pawlik and the publication of this report, but OPD “continues to
struggle with policies relevant to the use of force and other issues.” (August 17,
2020 Pawlik Report, Summary finding #18, p. 50) The Monitor’s report regarding
the Pawlik shooting has an entire section (August 17, 2020 Pawlik Report, Section
11, Failures of Departmental Policy, pages 43-45) dedicated to these shortcomings.
The Monitor’s report notes that best practices for the investigation of an
officer-involved shooting (OIS) dictate that law enforcement agencies have clear
policies and protocols in place to conduct fair and impartial investigations.
However, “at the time of the officer-involved shooting (OIS) of Mr. Pawlik, OPD did
not have a specific OIS protocol.” (August 17, 2020 Pawlik Report, p. 13) The
Monitor later concludes that “the absence of a clear OIS protocol at the time of this
incident contributed to CID’s failure to conduct a fair, thorough, or impartial
investigation.” (August 17, 2020 Pawlik Report, p. 44)
Further, “Departmental General Order (DGO) K-4, contains “limited
direction for the Department’s response to Level 1 (most severe) incidents…OPD’s
Criminal Investigations Division (CID) Policy and Procedure Manual devotes less
than one page to “Critical Incident Protocols,” and it primarily covers
administrative directions for notifications and review of completed investigations.
However, neither of these documents provides sufficient directives to fully address
officer-involved shootings.” (August 17, 2020 Pawlik Report, p. 13)
Specifically, DGO K-4 does not provide specific direction to those tasked with
conducting Level 1 Use of Force investigations. The IMT has demanded updates to
Policy and Procedure Manuals that would provide specific direction to personnel
assigned to IAD and CID, and that would address the deficiencies that came to light
as the EFRB reviewed the criminal and administrative investigations, but the
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Oakland Police Department has not made any updates yet. (August 17, 2020 Pawlik
Report, p. 44). This is particularly troubling given that “OPD acknowledged the
need for such a written protocol – though as of yet, the Department has not
finalized such a directive.” (August 17, 2020 Pawlik Report, p. 13)
The Monitor also highlighted other areas where OPD does not currently
have, and never had, a formal policy, including:
• Policy governing the composition, roles, and use of Designated Arrest
Teams (DATs).
• Policy governing the deployment and usage of the BearCat.
• Specific policies relevant to unresponsive and potentially armed
persons.
(August 17, 2020 Pawlik Report, p. 44)
Plaintiffs’ attorneys and the IMT demanded that OPD draft Department
Training Bulletins to address the three above-described deficiencies more than one
year ago, and the IMT provided final approval for these documents in October 2019.
Nevertheless, to this day, “these critical Training Bulletins remain unpublished;
and consequently, any training associated with these new policies remains
undelivered.” (August 17, 2020 Pawlik Report, p. 44)
Plaintiffs’ attorneys emailed Chief Manheimer about these issues the very
day that this report was published. Chief Manheimer subsequently explained that
the Police Commission requested that these Training Bulletins remain unpublished
in advance of the adoption of a comprehensive Use of Force policy. Although
Plaintiffs’ attorneys’ are sympathetic to the predicament this created for OPD, there
is no reason that they cannot be implemented on a temporary basis until the
comprehensive use of force policy is finalized. Just as Department General Order
K-3 (the Use of Force Manual) remains in effect until it is replaced by the new use
of force policy, OPD can and should implement the training bulletins on a
temporary basis until the new wording is completed, reviewed, and published.
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Some guidance now is better than no guidance to the officers at all, especially if
another incident happens. OPD is not called to deal with an armed, unconscious
individual regularly, but it does happen more than rarely. At least three
unconscious people have been killed in such situations in recent years, and the City
of Oakland has been sued successfully in all three occasions. The absence of an
appropriate policy and appropriate training is an unnecessary threat to human life
and has significant adverse risk management consequences. Finally, OPD must be
on notice that every day that these policies remain unimplemented might also place
OPD personnel in needless jeopardy.
Plaintiffs’ also note that the Monitor’s report regarding the Pawlik incident
found that “the Mayor’s lack of engagement, even after viewing the video, provided
tacit support for the Police Department’s incompetence in this matter.” (August 17,
2020 Pawlik Report, p. 50). According to Chief Kirkpatrick, Mayor Schaaf viewed
video of the shooting in the fall of 2018, and “was met with silence. The Mayor did
not ask questions or provide direction. Although in more recent national events, the
Mayor has been vocal, her steadfast silence in this matter was troubling. Her
characterization of the death of Joshua Pawlik as ‘awful but lawful’ was even more
so.” (August 17, 2020 Pawlik Report, p. 52). Plaintiffs’ are cognizant that former
Chief Kirkpatrick has filed a lawsuit against the Mayor and the City of Oakland,
and cannot corroborate these specific claims. Nevertheless -- as Mayor Schaaf has
told this court many times over the years – responsibility for the Oakland Police
Department successes and failures ultimately reside with her.
OPD would be better-positioned to attain meaningful and sustainable
compliance with Task 5, specifically, and the NSA generally, if the City of Oakland
pursued a functional working relationship with the Oakland Police Commission.
The Police Commission will be the ultimate arbiter on most complaints against
Oakland Police Department personnel, but the relationship between OPD and the
City of Oakland and this commission remains fraught. OPD recently released an
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After Action Report (AAR) related to the Crowd Control events between May 29 and
June 4, 2020 that was rejected by the Police Commission after a 6-1 vote. The AAR
repeatedly cited “reports” that rocks were thrown at officers (see: pages 37, 64, 67,
70-74), and mentioned “reports of subjects throwing Molotov Cocktail incendiary
devices at officers.” (AAR, p. 17). There is, to date, no concrete evidence that such
events occurred at all of the times reported by the OPD.. Representatives from the
City of Oakland have indicated that this information came from radio and dispatch
communications, and that these reports are currently the subject of Internal Affairs
and CPRA investigations but, again, no such evidence has been put forward to the
public and there has been comprehensive journalist reports that suggest not all of
the OPD reports may be valid.
The After Action Report also mentioned the murder of Federal Officer David
Underwood five times. Although Officer Underwood was murdered in close physical
proximity to the protest events covered by the AAR, this heinous crime was not
related in any way to those protests, and the AAR concedes that the perpetrators of
this murder were “specifically using the demonstration as a cover for their crimes.”
(AAR, p. 23) The other, repeated references to Officer Underwood’s murder in the
AAR nevertheless imply an association between the protests on May 29th and
Officer Underwood’s death. In fact, Vice President Mike Pence explicitly made this
(verifiably false) claim during a nationally televised convention speech, stating that
Officer Underwood “who was shot and killed during the riots in California.” This is
simply false, and OPD does its personnel, the citizens it serves, and the historical
record a disservice by linking this murder to the protests on May 29, 2020.
The AAR was also replete with self-serving, fact-free statements that are
incompatible with a neutral retrospective of the events at issue. For example, on
page 64 of the After Action Report, OPD commends itself thusly: “On Tuesday, 2
Jun 20, the Department showed great restraint and elected to wait out the people
protesting the curfew and to focus on addressing acts of criminal behavior and
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violence.” Although the report did contain some organization introspection, it was
hardly the critical evaluation of the Department’s performance that the public
deserves.
As noted above, the Oakland Police Commission therefore rejected and
returned the After Action Report to OPD for many reasons, including the reasons
stated here. Plaintiffs’ understand that there are three investigators working full-
time to review complaints related to the protests which are the subject of this After
Action Report, and there are thousands of hours of video that these investigators
are reviewing. Plaintiffs’ expect that these investigative processes will be more
thorough and diligent than the first iteration of the After Action Report, and look
forward to reviewing the Department’s revisions to that document as well. Lastly,
Plaintiffs’ once again encourage the Department to pursue a more collaborative
relationship with other stakeholders, particularly the Oakland Police Commission.
III. TASKS 24 (USE OF FORCE REPORTING POLICY) & 25 (USE OF
FORCE INVESTIGATIONS AND REPORT RESPONSIBILITY)
OPD had been in compliance with Tasks 24 (Use of Force Reporting Policy)
and 25 (Use of Force Investigations and Report Responsibility) of the NSA since
2015. In November 2018, this Court reactivated these Tasks as a result of Plaintiffs’
and the Monitoring Team’s concerns about Use of Force Reporting procedures at
OPD. Specifically, OPD had reported ever-decreasing uses of force numbers even as
the total number of uses of force, especially those pertaining to weaponless defense
techniques and pointing of a firearm at a subject, were systematically
underreported for years. Following interventions by the IMT and Plaintiffs’, OPD
completed policy revisions to rectify some of the deficiencies uncovered in an OIG
Use of Force audit, including the publication of Special Order 9196, which clarified
use of force policies regarding the pointing of a firearm.
Although the IMT review of Level 3 and Level 4 use of force reports during
the reporting period covered by the 69th IMT report did not identify any instances
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where they believed the use of force was inappropriate, the percentage of force
incidents involving African Americans increased by five percent among the cases
reviewed by the IMT. The percentage of Level 3 and Level 4 Use of Force, among
the 102 reviewed by the IMT, were as follows: 66% African American, 24% Latinos,
4% Whites, 6% Asians/Others. Similarly, the number of African Americans
subjected to Level 4 – Type 22 Uses of Force (pointing of a firearm) also increased:
66% African American (previously 55% in the 67th IMT Report), 24% Latinos, 3%
Whites, and 2% Asians/other.
Following the publication of OPD’s Office of Inspector General (OIG) Report
on Use of Force Reporting in August 2019, Plaintiffs’ were alarmed by OIG’s
determination that “the percentage of African American subjects of force that went
unreported is higher than the percentage of African American arrestees.” (p. 2, OIG
Audit) The IMT’s above-described review of use Level 3 and 4 uses of force continue
to indicate disparate treatment that disproportionately impacts minority citizens in
Oakland. Even when such uses of force are “within policy”, OPD must examine if
the same force is used equally on White and African American subjects. Plaintiffs’
have previously highlighted the work of Doctor Jennifer Eberhardt, who found that
1. handcuffing is used on African Americans more than Whites in analogous
situations, and 2. some OPD officers talk to African Americans differently than they
talk to Caucasians. It is incumbent on OPD to ensure that there are not instances
where, given similar fact patterns, force is not used disproportionately on African
Americans and/or Hispanics as compared to Caucasians in analogous situations.
IV. TASK 41 (USE OF PERSONNEL ASSESSMENT SYSTEM AND RISK
MANAGEMENT)
OPD continues to make uneven progress in the implementation of its new
risk management database, Vision. On the positive side of the ledger, the system is
operational, an evidently highly-credentialed and talented Data Manager has been
hired and will begin her employment next month, and OPD and City of Oakland
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stakeholders have proactively included Plaintiffs’ attorneys in meetings regarding
the new system. On the other hand, there is still much work to be done to ensure
that this multimillion dollar system fulfills its potential as a workable risk
management tool.
In Defendants’ most recent Case Management Conference Statement in this
matter, they reported that “the Department’s new risk management system,
VISION, is functional and the Department is already deriving some benefit from
the system in culling data for use at risk-management meetings.” (05/20/20 Joint
CMC Statement, p. 29). While this may be narrowly correct, there is substantial
evidence that Vision is far from fully functional. Director Gleason recently shared a
focus group study regarding the Vision system with Plaintiffs’ attorneys. This
survey found that three-quarters of respondents would like more training and/or a
user manual and/or one-on-one assistance to better understand Visions various
functionalities. The survey also found that approximately 37% of respondents think
Vision is better than PRIME (“drastically better” plus “somewhat better”), about
30% say it’s the same as PRIME, and about 17% say it’s worse than PRIME
(“drastically worse” plus “somewhat worse”). A further 16% have not used Vision
yet. Although it is good that more respondents think that Vision is an
improvement, it troubles Plaintiffs that a comfortable plurality of respondents who
have used Vision think it is only equal to or worse than PRIME.
There appear to be two main drivers of this sentiment, per the free-form,
anonymized feedback from officers included with the survey. First, there are dozens
upon dozens of complaints about the functionality of the system. It is variously
described as “confusing”, “complicated”, “complex”, “not user friendly”, “not
intuitive”, “difficult to navigate”, “a laborious mess”, and “always out of
commission.” This echoes some of the complaints expressed in the “Chief’s Weekly
Updates” email for the week of May 8, 2020, wherein Chief Manheimer was asked
“When will we abandon Vision and go back to Word documents and Excel
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spreadsheets that take less time, since we’re having to do that anyway, and cause
fewer headaches?”
The other recurring complaint in the survey relates to data problems. The
IMT sounded the alarm about data-retention and transition issues while moving
from PRIME to Vision several months ago. For example, in April, they expressed
concern that “that the dashboards and reports reflect the data correctly.” (67th IMT
report, p. 26). The survey results forwarded by Director Gleason include myriad
complaints about “inaccurate data”, “horribly incomplete” data, information that is
“not accurate”, and “discrepancies on data.” Plaintiffs’ are aware that interpolating
real-time data into the Vision database is a complex task. This data is also the
fundamental building block of the whole system. Unless it is there, in real time,
and accessible, Vision cannot evolve into the risk management tool envisioned by all
parties.
In spite of the foregoing, Plaintiffs’ do see a path to real progress on both
fronts. With regard to widespread complaints about functionality, it is incumbent
that OPD provide comprehensive training to any and all members who will
interface with Vision. As noted above, 75% of survey respondents requested a user
manual, one-on-one assistance, or further training. Plaintiffs are informed that
OPD command staff has issued training assignments, and that a supervisor
training course is occurring right now. Similarly, Plaintiffs understand that OPD
has also increased the number of available report-writers that are critical to the
functioning of the system, and the IMT reports that considerable time is spent
identifying data problems and “cleaning data carried over from the PRIME
database and ensuring that the system runs well.” (69th IMT Report, p. 28).
However, even with the influx of report-writers authorized by Chief
Manheimer, OPD personnel attest that reports are held up due to a lack of
programmers needed to fix glitches and bugs on the back-end of the Vision
infrastructure. Oakland has a contract with CoreTech Solutions that allows for 160
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hours of maintenance per month. This is apparently insufficient, as OPD must
prioritize which software problems cause the greatest amount of pain to the
greatest number of users, at the expense of other issues which are kicked down the
road. For example, an OPD commander recently told Plaintiffs’ attorneys that an
underlying bug about missing training data in Vision was identified in March but
only fixed this month, September 2020. This piecemeal approach is a disservice to
the Department, and the taxpayers who are paying for this system and stand to
benefit greatly from an improved risk management infrastructure. Given the
millions of dollars that have already been spent on this program, the City of
Oakland must examine increasing OPD’s allotment of maintenance hours to
whatever number is sufficient to make Vision fully functional.
In addition to increasing the number of hours of contracted support, the City
of Oakland’s Information Technology Department (ITD) must also have the internal
resources to support such increased hours. Similarly, it is incumbent on ITD to
become fluent in the underlying architecture and functioning of Vision, to ensure
that Oakland is not perpetually dependent on an outside entity to maintain a
functioning risk management system. This is admittedly complex, expensive, and
time-consuming work, but it must be done if Vision is to become a comprehensive
and durable risk management tool.
As such, Vision can be leveraged to buttress the Risk Management Meetings
(RMMs) that take place at all supervisory levels of the Department. Plaintiffs’
attorneys have attended many of these meetings, and are consistently impressed by
the use of data to discuss stop data, possible patterns of bias in stops, complaints,
the ratio of intelligence-based and non-intelligence based stops, pursuits, and,
perhaps most crucially, officers who are under supervisory monitoring and/or
intervention. It is clear that there is real institutional buy-in to this process. These
RMMs have been an unequivocal force for positive change at OPD.
There is also room for improvement. First, there is no general order, training
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bulletin, or any other writing known to us which explains what a Risk Management
Meeting is, what is expected of the people who run it, or the people who are
assigned deliverables. In all fairness, deliverables are assigned and many OPD
members who are assigned deliverables do a commendable job of responding or
taking action on the basis of the deliverable. The problem is that there are no rules
as to what constitutes a Risk Management Meeting, meaning that an RMM in the
future could be very different than one today, and there would be no one who could
state that the difference is permitted or not permitted based on an agreed upon set
of rules. This often means that Risk Management Meetings are more or less
effective depending on who is running them. In fact, a Chief or other high ranking
supervisor could cancel or alter a Risk Management Meeting for personal motives
not in the best interests of the City of Oakland or the Oakland Police Department.
In conclusion, there is a pressing need for some writing which sets forth the
minimum standards as to what should be expected in a Risk Management Meeting.
At a recent Risk Management Meeting, there was a conversation about the
number of pursuits in different parts of the City. In Area 2 there were none, in
Area 4 just one, but there were five pursuits in Area 5 (in East Oakland). Instead of
focusing on the disproportionate number of pursuits in Area 5, and/or assigning
deliverables to further research the high number pursuits in this predominantly
African American are of the City, questioning focused on why there were so few
pursuits in Area 4. There was also no substantial discussion about fault, or about
the necessity of such pursuits. Similarly, even though there were far more
collisions in Area 1 than any other region of the city (13, versus seven in the next-
highest area), no deliverables were assigned that might elucidate the root causes for
these wildly divergent numbers.
Perhaps most critically, Risk Management Meetings often focus so narrowly
on individual officers and numbers that larger trends are missed and/or ignored
altogether. For example, Chief Manheimer’s most recent biweekly compliance
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update (269th Biweekly report, dated August 26, 2020) indicates that there have
been 96 more misconduct complaints through August 22, 2020 than there were
year-to-date in 2019. There were 699 misconduct complaints year-to-date in 2020,
and 603 misconduct complaints year-to-date in 2019. (Note that this increase does
not include service complaints, which relate to delays in service or inadequate
service levels and may be partly attributable to an overstretched police department
and increased calls for service during Coronavirus epidemic. There has been
exactly 100 more service-related complaints year-to-date in 2020 versus 2019
Plaintiffs’ attorneys inquired about this increase in complaints with OPD
commanders. We understand that many of these complaints – including the actions
and tactics of OPD personnel on scene during the recent protests against the death
of George Floyd – are being investigated by IAD at this very moment. It is also
possible that, given the broader sociopolitical climate in the nation, citizens feel
more empowered and/or more motivated to file complaints against police officers.
Plaintiffs’ will watch carefully to see whether this increase in complaints is a
summertime blip, or whether it continues into future months. It is critical that
these complaints are investigated thoroughly, and that investigators follow the facts
wherever they may lead. In particular, the public must be convinced that the OPD
can fairly investigate their own officers’ conduct on the protests from May 29-June
3, 2020. If this does not happen, the very existence of Internal Affairs itself may be
questioned in the process of Oakland’s necessary trimming its budget as a result of
the recent economic losses causes by the current pandemic.
Plaintiffs’ attorneys will continue to follow this process to its conclusion and
report to back to this Court once the investigations have run their course.
The Department’s prompt response to Plaintiffs’ attorneys’ specific questions
about the substantial rise in complaints is appreciated, but it also belies a larger
point: a big uptick in the number of misconduct complaints should be noticed, and
acted upon, by OPD in real-time. If Plaintiffs’ attorneys and/or the IMT are the
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driving force for investigating something as important as a marked increase in
misconduct complaints, the Department is, by definition, failing to perform the most
basic risk management analysis.
Plaintiffs’ attorneys have also noticed that Stop Data has become the
singular focal point at risk management meetings. Stop Data is critically
important, but there are other dimensions that also require concerted attention.
Task 40 of the NSA requires that OPD collect twenty specific kinds of data that
must be incorporated into the Personnel Assessment System (PAS). Some of these,
such as complaints and pursuits, are documented comprehensively, and then
discussed at Risk Management Meetings. Others have never been mentioned at
any RMM attended by Plaintiffs’ attorneys.
For example, Task 40 requires that OPD collect data on
“All civil suits and/or tort claims related to members’ and employees’
employment at OPD, or which contain allegations which rise to the
level of a Manual of Rules violation” (Task 40, item #7)
“All charges of resisting or obstructing a police officer, assault on a
police officer, or assault-with-a-deadly-weapon on a police officer.”
(Task 40, item #13).
“Criminal cases dropped due to concerns with member veracity,
improper searches, false arrests, etc.” (Task 40, item #19)
Plaintiffs’ attorneys do not know if this information is even tracked in the
Vision system; whether it is or not, it certainly has never been discussed, or even
tangentially mentioned, at an RMM they have attended. Further, it appears that
OPD formerly tracked at least some components of item #19, above, and that the
Department held regular meetings with the District Attorney’s office to discuss
dropped criminal charges. Such interfacing was apparently lost in the transition to
Vision, and has not happened for years, as far as we know.
In fact, earlier iterations of regular IMT Reports indicate that all of the data
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required by Task 40 was regularly collected and reported. For example, the 20th
IMT report included a matrix, which encompassed all twenty categories mandated
by Task 40.1 The IMT found OPD was in full compliance with this task because
“PAS records for the quarter of July 1, through September 30, 2014 indicate that
data were entered for all the fields required by Task 40.” (25th IMT Report, p. 60). It
is clear that OPD is no longer collecting all of the data required by Task 40.
All twenty components of Task 40 are important risk management indicators,
and all risk criteria require attention. They must, therefore, be incorporated into
Risk Management Meetings. More broadly, millions of dollars and tens of
thousands of work hours have been invested into OPD’s risk management regimen.
OPD commanders must make sure that officers are proficient in Vision, the City’s
Information Technology Department must ensure that Vision is properly funded
and maintained, and OPD personnel must fully commit to collecting and analyzing
data for the purpose of managing risk and improving policing strategies and
outcomes. In that same spirit, Risk Management Meetings must be probing,
empirically-grounded, and oriented toward medium- and long-term systemic
improvements within OPD, and inclusive of all criteria mandated by Task 40 of the
NSA. Recent progress in this regard is tenuous, and OPD must redouble their
commitments to the risk management process moving forward.
V. TASK 45 (CONSISTENCY OF DISCIPLINE POLICY)
Task 45 has not been assessed by the IMT since 66th IMT Report, published
in February 2020, which determined that OPD remained in partial compliance with
Task 45. OPD is unlikely to attain compliance with this task given the results of
the “Police Discipline Disparity Study” (Disparity Study) drafted by Hillard Heintze
firm. This report was commissioned from Hillard Heintze in March of 2019, and a
“draft” report was provided to Plaintiffs’ attorneys in August 2019. The final
1 See 20th IMT Report, p. 62, here: http://www2.oaklandnet.com/oakca1/groups/police/documents/webcontent/oak051246.pdf
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report—very similar to the draft report Plaintiffs’ attorneys received in August 2918
-- was eventually published on April 23, 2020, along with OPD’s “Response to the
Police Discipline Disparity Study.” (https://cao-
94612.s3.amazonaws.com/documents/OPD-Response-to-Disparity-Study-final-1500-
hrs.pdf) An updated report was forwarded to Plaintiffs’ attorneys on May 9, 2020.
As this Court already knows, the Disparity Study determined that “black
sworn employees were more likely to have their allegations result in a sustained
finding than other employees.” Specifically they found that “over the five-year time
period, black employees were 37% more likely to have an allegation against them
result in a sustained finding.” (Disparity Study, p. 10). The report also concluded
that for Class One complaints (the most serious complaints), black individuals are
almost 39% more likely to have the complaint sustained, while controlling for
gender and years of service.” (Disparity Study, p. 10)
The report also found that the IAD policy allowed sergeants to be “fact
finders and adjudicators has the potential to lessen an investigator’s neutrality” and
that this system “is not consistent with promising practices used in departments
similar in size to Oakland.” (Disparity Study, p. 11) Another troubling finding was
that many (police officer) “interviewees …indicated that they believe that the OPD
receives few formal complaints about the disciplinary process because those who
complain may be ostracized or not receive desired assignments”. The report also
found that “Field Sergeants receive very little training” on how to conduct division-
level investigations (DLIs). (Disparity Study, p. 36)
The Disparity Study also investigated releases from OPDs Academy, and
concluded that “twice as many black trainees were released than white or Hispanic
trainees. (Disparity Study, p. 41) It also examined FTO (Field Officer Training)
completion rates by race and gender. They included a table that shows completion
rates for black and Asian trainees lagged behind those for Hispanic and white
trainees.” (Disparity Study, p. 42)
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The Disparity Report includes employee surveys that attest to the to minority
officers’ belief that there are systemic racial disparities at OPD. According to charts
on p. 21 of the report, 35.83% of OPD employees “strongly agree” or “agree” with the
proposition that race plays a factor in determining the outcome of an internal
investigation. 36.51% of employees “strongly agree” or “agree” that race plays a
factor in OPDs determination of discipline. (Notably, 75% of white respondents
indicated that they believe that race is not a factor in the outcome of an internal
investigation or the determination of discipline, while just 63% of black
respondents, 60% of Asian respondents, and 56% of Hispanic respondents
concurred. Disparity Study, p. 23) OPD employees also reported that “who you
know, and to which cliques you belong, influence whether an investigation will be
sustained and what level of discipline will be administered”, and that the “IAD and
disciplinary processes are not transparent.” (Disparity Study, p. 23)
These numbers pale in comparison with the number of sworn respondents
who believe that OPD’s disciplinary process is fair. Just 18.68 percent “agree” or
“strongly agree” with this sentiment. The other 81.32 percent of respondents
disagree, with a whopping 36.96% strongly disagreeing. A discipline system that is
“unfair” in the eyes of more than five of every six employees is untenable, and by
definition broken.
The above-described findings are incompatible with the “core principles [of]
equity and procedural justice” that OPD purports to uphold in their Response to the
Police Discipline Disparity Study. It is also a violation of NSA Task 45, which
requires Consistency of Discipline.
The Hillard Heintze Report concludes with 14 recommendations that it urged
the OPD to adopt. The Department’s published response variously promises that
OPD “looks forward to engaging with our Race and Equity team with the expertise
and consultation of the City’s Department of Race and Equity and with technical
assistance from Dr. Eberhardt” (Response, p. 2) and that “the Department will work
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with the Department of Race and Equity to evaluate the fourteen recommendations
made by Hillard Heintze.” (Response, p. 4). On May 9, 2020, Chief Manheimer
forwarded a document titled “Disparity Reduction Measures and Diversity
Enhancement.” This document notes that, “due to the issues raised in the Disparity
Study, we’ve made significant changes in the backgrounds and recruiting
processes, and our recent academy classes are extremely diverse in experience, age,
race, gender and ethnic background.” (Disparity Reduction Measures and Diversity
Enhancement, p. 3). Although this may in fact be true, it was not lost on Plaintiffs’
attorneys that the most recent graduating Academy still contained no female
African American officers.
More generally, OPD has been on notice about racially disparate discipline
outcomes for more than one year, given that a draft report of the Disparity Study
was in circulation in August 2019. OPD did not proactively address these issues
prior to May 2020. Chief Manheimer subsequently stated that remedying such
disparities is a “priority”, and there are some indications of progress. OPD has
apparently “instituted a multi-layered review process… to help mitigate disparate
outcomes.” (Chief Manheimer’s Disparity Reduction Measures and Diversity
Enhancement memorandum, p. 1) Chief Manheimer also reports that “IT is
building a report to have the ability to conduct spot checks of findings and ability to
drill down on select investigators on an annual basis to review the quality of
investigations, the findings, and the race of the subject employees. This will help
identity possible disparities, bias, and allow for corrective measures to be taken.”
Chief Manheimer’s Disparity Reduction Measures and Diversity Enhancement
memorandum, p. 1)
Plaintiffs’ attorneys are aware of a recommendation/Department response
matrix that outlines specific OPD responses to each of the 14 recommendations
made by the Hillard Heintze Report. These responses have been implemented to
varying degrees, and some have already been completed. Plaintiffs’ attorneys will
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continue to monitor the progress made on these fourteen recommendations. It is
critical that, following implementation, OPD and Hillard Heintze run a further
study to determine whether these efforts have had the intended effect of reducing
racially disparate outcomes. CONCLUSION
Plaintiffs’ February 2020 Case Management Conference Statement concluded
with the observation that “the central problem seems to be at the top.” (Dkt. 1358,
p. 18) Our May 2020 Case Management Conference Statement concluded that “the
Police Commission and Mayor Schaaf apparently agreed”, in reference to the
termination of Chief Anne Kirkpatrick. The IMT’s August report regarding the
shooting of Joshua Pawlik extends this criticism up one more level, to the Mayor
herself:
“Perhaps the most telling act of avoidance came from City Hall. According to
Chief Kirkpatrick, in the fall of 2018, as the CID and IAD investigations were
underway, the Chief showed the video of the shooting to the Mayor. According
to the Chief, the viewing of the video was met with silence. The Mayor did not
ask questions or provide direction. Although in more recent national events,
the Mayor has been vocal, her steadfast silence in this matter was troubling.
Her characterization of the death of Joshua Pawlik as “awful but lawful” was
even more so." (August 17, 2020 Pawlik Report, Summary, p. 52)2
The Monitor also noted that Mayor Schaaf should have insisted on regular
briefings, and found that “the Mayor’s lack of engagement, even after viewing the
video, provided tacit support for the Police Department’s incompetence in this
matter.” (August 17, 2020 Pawlik Report, Summary, p. 52).
As mentioned previously, Plaintiffs’ Attorneys are aware that Chief
Kirkpatrick is in litigation with the City of Oakland and that Mayor Schaaf no
doubt has a different view as to what happened during some of the critical incidents
after the Pawlick shooting. Nevertheless, responsibility for NSA compliance
ultimately lies at the feet of the Mayor, who oversees the Department and the Chief
2 See also DF Chronicle Article 03/17/2019: https://www.sfchronicle.com/crime/article/Oakland-s-police-chief-had-a-critical-goal-for-13693164.php
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of Police. The City of Oakland recently posted a job description for the Chief of
Police position.3 The job description states that the next Chief -- Mayor Schaaf’s
sixth – is expected “to fully and finally effect long sought transformational change of
policing in Oakland.” Further, the next Chief must be a “reform-minded leader, able
to rebuild trust”, and shall “promote deep, structural institutional reforms, and
foster a culture of self-examination and constant improvement within the
Department, including an ability for officers to report misconduct safely.”
Implicit in this phrasing is the acknowledgment that OPD needs to “rebuild
trust”, and that it is not yet where it needs to be when it comes to “deep, structural
institutional reforms” and a “culture of self-examination.” These are recurring
themes in this and prior Case Management Conference Statements by Plaintiffs’
attorneys. Articulating the change that needs to happen is an important first step,
and the job description manages to do so. How that is translated into practice as
the department moves forward is an open question and, ultimately, that
responsibility lies with our elected officials, headed by Mayor Schaaf.
.
3 https://www.governmentjobs.com/careers/oaklandca/jobs/2849400/chief-of-police?pagetype=jobOpportunitiesJobs
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THE CITY’S STATEMENT
OVERVIEW
In this status report, the Department and the City’s leadership respectfully
update the Court on the following topics: (1) steps the City is taking to achieve
equity within the Department and to reduce disparities in policing; (2) the City’s
response to the IMT’s after-action report concerning the fatal shooting of Joshua
Pawlik in March 2018, including important training the Department developed and
implemented in early 2019; (3) the City’s continuing work to collect and best utilize
stop data (Task 34) and maximize its new risk management system (Task 41); (4)
the Department’s progress on force reporting (Tasks 24/25); (5) the City’s efforts
towards achieving sustainable compliance with Internal Affairs investigation
timelines (Task 2); and (6) recent protests within Oakland.
I. THE CITY’S ONGOING EFFORTS TO REDUCE RACIAL DISPARITIES
A. Internal Race and Equity Work
In May 2020, the Department released the Oakland Police Department Police
Discipline Disparity Study completed by consulting firm Hillard Heintze. The study
found that between 2014 and 2018, African American officers were more likely than
officers of other races to have misconduct allegations against them sustained. The
study also revealed disparate outcomes based on the race and gender of recruits
released from the Academy and Field Training Programs. By the time the study
was released, the Department had already implemented many changes aimed to
reduce disparities in its discipline process and in its Academy and Field Training
Programs. See Oakland Police Department Disparity Reduction Measures and
Diversity Enhancement (May 20, 2020),
https://www.oaklandca.gov/documents/oakland-police-discipline-disparity-study
(last visited Sept. 9, 2020).
Following the release of the study, the Department has continued its internal
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race and equity work in “Phase II” via a Steering Committee and a subset of that
committee designated as a Working Group. Phase II began with a Race and Equity
Impact Analysis on the Department’s disciplinary process. The analysis was
conducted by the City’s Department of Race and Equity, led by Director Darlene
Flynn, partnered with the Oakland Police Department’s Race and Equity Team.
Based on the analysis, the Race and Equity Team formally recommended that the
Department accept and implement all fourteen recommendations identified in the
Hillard Heintze Discipline Disparity Study. At this time, the Department has
completed or implemented ten of the recommendations in whole and three in part,
and is working on implementation of the final remaining recommendation. The
Department has also implemented an additional measure: race and gender are
removed from information presented during the Character Review portion of Hiring
and Backgrounds process. This is aimed to minimize potential bias based on
applicant race and gender. A chart summarizing the progress of this race and equity
work is attached as Exhibit A. Ex. A, Race and Equity Work on Discipline Disparity
Study Recommendations (Sept. 2020).
The Working Group is engaged—with critical assistance from Stanford
University Professors Eberhardt and Monin—in evaluating the effectiveness of
interventions already implemented by the Department, conducting further analysis
of the existing data, and developing metrics to assess the impact of each new
intervention implemented.
1. Academy and Field Training Update
On February 21, 2020, 32 officer recruits graduated from the Department’s
183rd Basic Academy. Twenty-eight of those graduates began the Department’s
Field Training Program.4 Two graduates resigned early in the program. All twenty-
six remaining officer trainees successfully completed field training. The Department
4Two graduates were recruits from other Bay Area police Departments who attended the Department’s academy – BART and Fremont.
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did not release any trainees from the Field Training Program. The chart below
reflects the demographics of the 26 graduates of the 183rd Academy who recently
completed field training.
2. OIG Audit of the Department’s Promotional Consideration Process
The Office of Inspector General’s (OIG) Quarterly Progress Report includes an
evaluation of the Department’s promotional consideration process. See OIG 1st
Quarterly Progress Report Jan.-Mar. 2020,
http://www2.oaklandnet.com/oakca1/groups/police/documents/agenda/oak072933.pdf
(last visited Sept. 9, 2020).
The Department’s promotional consideration process is intended to provide
the Chief with the most comprehensive overview of sworn personnel who are
seeking promotion to the next rank so that promotions are thoughtful and fair. Id.
at 2. Overall, no significant issues were found in the promotional consideration
process. Id. During the audit, OIG learned that the Department’s process had
evolved to add three additional document submissions providing important insight
into candidates’ skills, knowledge, and abilities. Id. at 6, 13. The consideration of
these three documents are not expressly referenced in current policy and procedure.
Id. at 12. OIG recommended that the Department update its internal Personnel
[Section] Policy and Procedure Manual, Policy 08-01, Promotional Consideration
Gender Race/Ethnicity Residency Language
Female 4 Asian 6 Oakland 6 Mandarin 0
Male 22 Black or African American 4 Other 20 Spanish 9
Hispanic or Latino 12 English Only 11
White or Caucasian 2 Other 4
Other 2 Cantonese 2
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Procedure (2008), to reflect the new process and to ensure the process is transparent
and known to all stakeholders. Id. at 13-14. The Department will update this policy
manual section as recommended.
B. Reducing Racial Disparities in Policing
The Department is committed to addressing the racial disparities in
discretionary stops made by officers. One of the ways the Department aims to
reduce racial disparities is to focus on mission-based police practices. In Oakland,
this includes an emphasis on intelligence-led and precision-based policing.
Intelligence-led policing means requiring officers to have some nexus to criminal
activity before they effect stops of vehicles or people. Id. at 21:19-23. Precision-based
policing involves identification of a specific problem or problem location – usually in
partnership with the community – and is accompanied by direction for enforcement
that reflects a problem-solving response. Precision-based policing requires asking
for each identified problem: “Is the response focused and intentional?” and “Will it
make people safer, and is it fair?” Examples of precision-based policing include:
Responding to fire danger in the hills with requests to conduct security
checks and contact persons associated with groups that may be drinking,
smoking, and lighting fireworks in the identified locations;
Responding to specific traffic safety moving violations that have resulted
in pedestrian injuries and fatalities by requesting additional enforcement
of traffic laws at identified times, intersections, and/or addresses; and
Responding with security checks in a neighborhood that has recently
experienced a high rate of auto-burglaries after a person was observed
looking into parked vehicles and checking door handles.
The emphasis on these practices is reducing the negative impact police
contacts can have on minority communities. The City previously reported between
2017 and 2019 an overall reduction in stops as well as a reduction in the racial
disparity in the Department’s stop rates, with both reductions having the greatest
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impact on African Americans.
In the first half of 2020, the Department has continued to reduce its “stop
footprint” and has achieved an overall reduction in the number of non-dispatch
stops of African Americans and Latinos. See Fig. 5.0 Non-Dispatch Stops by Race,
Jan. 2014 to Jun. 2020. In the first half of 2019, the Department stopped 6,010
African Americans and Latinos. During the same period in 2020, the Department
stopped 5,267 African Americans and Latinos. The reduction had a greater impact
on African Americans—stops of African Americans were reduced by 511 compared
to a reduction in 232 stops of Latinos.
Notably, stop data from the first half of 2020 reflects a continuation of the
downward trend in stop rates for African Americans seen between 2016 and 2019.
See Fig. 5.1, Non-Dispatch Stop Rates by Race (Jan. 2014 to Jun. 2020). We are
mindful, however, that the stop data from the first half of 2020 also reflects a
continuation of an upward trend in stop rates for Latinos over the last six years
with an uptick to the highest quarterly stop rate (29%) the Department has had for
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Latinos in the last six and a half years. Even though the overall number of stops for
Latinos have decreased despite this uptick in rate, this warrants our attention and
we are examining the data and information to understand this trend.
These outcomes largely reinforce the positive impact of the Department’s
precision-based approach, emphasis on using intelligence, and practicing procedural
justice in the community. The City believes that the use of these strategies may
potentially lead to increased trust from the community by demonstrating police
practices the community believes are fair and effective. The City will continue to
study the data and seek out evidenced-based practices as well as more innovative
practices in its efforts to reduce racial impacts and disparities.
II. THE CITY’S RESPONSE TO THE IMT’S PAWLIK REPORT
The City agrees with the findings in the IMT’s after-action report and agrees
that the deficiencies described in the IMT’s report are of immense concern. We
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recognize that there were failures in police operations resulting in the March 2018
fatal shooting of Joshua Pawlik and failures in the internal investigations that
followed. The City and the Department independently identified many of the
significant failures reflected in the IMT’s report and began addressing these failures
more than a year ago. Some of the most egregious lapses described in the IMT’s
report, however, involved decisions by then-Chief Kirkpatrick and admittedly, these
lapses were not self-identified by the City. We do not address the issues raised by
the IMT’s report regarding Chief Kirkpatrick’s decisions as her employment with
the City of Oakland was terminated without cause prior to the publication of the
IMT’s report. The City and Department are, however, taking a close look at the
former chief’s decisions and actions detailed in the IMT’s report to ensure that such
lapses do not occur in the future.
Oakland police officers’ fatal shooting of Mr. Pawlik was a tragedy. In the
wake of that tragedy, upon identification of the same deficiencies set forth in the
IMT’s report, in early 2019 the City and the Department took proactive, deliberate
measures to correct and improve Department practices and provide important
training to officers to prevent any similar future tragedy. These measures were born
out of the Department’s Executive Force Review Board (EFRB) process as well as a
directive from Mayor Schaaf. See Ex. B, OPD EFRB Report, 18F-0067 (Nov. 28-29 &
Jan. 8, 2019) (redacted), at 47-49. The EFRB identified not only operational
deficiencies related directly to the fatal shooting of Mr. Pawlik, but also deficiencies
in the IAD and CID investigations of the fatal incident. These deficiencies were also
identified and described in the IMT’s report.
A. Training and Development of New Policy
Following the EFRB, in February 2019 the Board issued a detailed 49-page
report that summarized its deliberations and findings. Id. The Board identified and
recommended officer and supervisor training on (1) encounters with armed
unresponsive persons, (2) operating designated arrest teams (DATs), and (3) using
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the BearCat. Id. at 36, 44, 47-48. Also in early 2019, Mayor Schaaf directed then-
Chief Kirkpatrick to develop written policy to better provide for safe disarming of
armed and unconscious or otherwise unresponsive individuals. Chief Kirkpatrick
ordered training and new policy development on unarmed responsive persons. The
Chief also ordered training and written policies on DATs and use of the BearCat.
Work on policy development and training began in or before March 2019,5 when
Chief Kirkpatrick “directed trainers to engage other agencies around the country
and review their policies and procedures and training for critical incidents involving
unresponsive armed individuals.” Ex. C, Dkt. 1264 at 16:22-25, Apr. 3, 2019 Court
Hearing Transcript (Excerpted).
The Department’s drafts of the three “training bulletin” policies were
reviewed and approved by the IMT after its October 2019 site visit. Thereafter, the
Department shared these policy drafts with the Police Commission and is
collaborating with the Commission in the Commission’s required review of these
policies pursuant to the City Charter. Even though these policies are not yet
formally adopted pursuant to the City Charter, the Department developed and
implemented training in early 2019. Further, the Department updated that
training as appropriate to remain consistent with draft training bulletins as the
written policy took more definite shape. In or before March 2019, trainers had
“already incorporated training for these incidents into current reality-based
scenario practical exercises and classroom education” to be “delivered in the
academy and in-service continued professional training.” Id. at 16:17-21.
The Department’s training and policy development in these areas is having
an observable impact, and officers have successfully resolved incidents pursuant to
5 We respectfully disagree with the IMT’s account that “[i]n May 2019, at the insistence of the Monitoring Team and the Plaintiffs’ attorneys in the NSA/Allen case, OPD began work on three Department Training Bulletins to address these topics.” See Dkt. 1388 at 44, The March 11, 2018 Shooting of Joshua Pawlik by Oakland Police Officers: A Report of the Monitor/Compliance Director (Aug. 17, 2020)
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the new training. In early February 2020, for instance, officers encountered a man
armed with a firearm asleep in a car parked on a City street. Officers apprehended
the man; no firearms were discharged. A community member captured part of the
incident and posted it online at:
https://twitter.com/hyphy_republic/status/1225180110782775296 (last visited on
Sept. 8, 2020).
B. CID and IAD Investigations
In addition to making training and policy recommendations, the Board made
recommendations for improvement to both IAD and CID. Ex. B, EFRB Report at 36.
The EFRB report identified, for example, a lack of “adequate training on
sequestering and interviewing all subject officers,” and a need for additional
training on “reviewing and critically examining all pieces of evidence,” and
“resolving all discrepancies to the best of their abilities.” Id. at 37. In response to
the issues that surfaced during the Board, in or before March 2019 then-Chief
Kirkpatrick ordered a team of CID and IAD commanders to explore improvements
to the Department’s investigation of serious uses of force. Ex. C, Dkt.1264 at 17:17-
23, Apr. 3, 2019 Hr’g Tr. (Excerpted). The Department has since conducted
investigation training for IAD and CID and will maintain ongoing training for
continued and sustained improvement. An updated IAD Manual is undergoing a
final review by the City Attorney’s Office and Executive Team. Following that
review, the Department will submit the Manual to the Police Commission for
review.
In addition, in or before March 2019 the Department began “working on
modifications to the homicide section policy and procedure as it relates to officer-
involved shooting investigations.” Id. at 17:21-23. The Department ultimately
determined based in part on its review of policy and procedures used by other
departments to create a stand-alone policy synthesizing the pieces of various
policies and procedure that relate to the investigation of in-custody deaths and the
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use of lethal force, including officer-involved shootings. The Department is nearing
completion of a final draft of that policy. In the meantime, the Department
continues its longstanding compliance with the NSA’s OIS Investigations Review
Protocol (Task 31). Task 31 requires certain notifications and responses in the event
of an officer-involved shooting (OIS). On April 16, 2020, five OPD officers were
involved in an OIS, along with a Richmond Police Department officer. The incident
stemmed from pursuit of a kidnapping and attempted murder suspect that
ultimately ended with an OIS in Richmond. The IMT agreed that the Department
“complied with all [ ] requirements” and “all of the protocols required by the Task
were adhered to.” Dkt. 1387 at 31, 69th Report (Jul. 28, 2020).
Finally, it is important to note that the IMT’s reviews of IA investigations
(Task 5) since July 2018 have been mainly positive. See Dkt. 1240 at 14-16, JCMS
(Mar. 22, 2019); Dkt. 1363 at 9, 67th Report. Since 2010, the IMT’s approval rate
has frequently exceeded 90%, and has never fallen below that threshold. See Dkt.
1358 at 36, JCMS (Feb. 18, 2020). Nonetheless, the IMT has continued to defer its
compliance assessment on Task 5. Dkt. 1363 at 9, 67th Report.
C. Executive Force Review Boards (EFRBs)—Task 30
While the IMT ultimately disagreed with some of the Board’s findings in the
Pawlik EFRB,6 the IMT agreed with the EFRB’s criticisms and recommendations
for improvement and those criticisms and recommendations are echoed in the IMT’s
report. This reflects that the EFRB operated as designed and intended: to analyze a
use of force incident to identify deficient or exceptional performances as they related
to a wide variety of issues, including but not limited to Department policy or
procedure revision, any tactics, strategies, and options pursued as events unfolded
that may have led to the use of force, and additional training that may be required
or existing training that may need to be made more frequent. See OPD DGO K-4.1.
6 Though the EFRB determined that all force was in compliance with Department policy, it found violations of policy by a lieutenant for failure to supervise (Class II), and a sergeant for gross dereliction of supervision (Class I).
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Force Review and Executive Force Review Boards (Dec. 16, 2015). As a result of the
EFRB, the Department self-identified deficiencies and the need for training and
new policy, and sought prompt correction and improvement. As a result, the
Department made significant progress in advance of the release of the IMT’s August
2020 Pawlik Report.
Prior to the Pawlik EFRB, the Department had five years of sustained
compliance with EFRBs. 69th Report at 19; Dkt.1240 at 17. During that time, the
Department conducted 17 EFRBs—all of which were found to be in compliance with
the NSA and Department policy, often with IMT comments about the
“thoroughness” and appropriate findings. Dkt. 1240 at 17. The IMT also found the
sole EFRB that occurred since the Pawlik EFRB “in compliance” with Task 30. 69th
Report at 20. (“We consider this EFRB to be in compliance, in stark contrast to the
last EFRB conducted by the agency.”) At this time, however, the IMT has deferred
its compliance assessment on EFRBs (Task 30). We are hopeful that the
improvement and movement into full compliance that the IMT noted in the context
of FRBs (Task 26)7, and the Department’s recent “in compliance” EFRB—all
achieved pending the IMT’s Pawlik Report—contribute to the IMT’s agreement in
due time that the Department is in compliance on Task 30.
D. City Leadership Response
City leadership cares deeply about these issues and considered Mr. Pawlik’s
death a horrific and avoidable tragedy. Contrary to Chief Kirkpatrick’s account,
which the IMT’s report appears to solely rely on, Mayor Schaaf remained engaged
7 The IMT moved the Department “in compliance” on Task 26 (FRBs) in July 2020. See 69th Report at 18. The IMT stated, “In general, we note an overall improvement in the probing nature of the questions posed by Board members, as well as in the quality of their deliberations. They also spend a great deal of time discussing issues ancillary to the uses of force, such as tactics, supervision, force alternatives, and training opportunities. The IMT also noted that in some cases Boards came to different conclusions than the initial investigators “but in doing so, served as the check-and-balance contemplated when the process was established.” Id. at 17.
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and asked questions about the circumstances that led to Mr. Pawlik’s killing, while
being careful to avoid political interference in the actual investigation so as not to
prejudice its outcome. In early 2019, Mayor Schaaf gave then-Chief Kirkpatrick
direction to develop a policy to better ensure armed and unconscious or otherwise
unresponsive individuals are safely disarmed to prevent any similar tragedy from
ever happening again.
Mayor Schaaf also worked not only to change the Department’s operational
policies, but also to change California law governing police use of lethal force. Mayor
Schaaf is the only Mayor listed as an official supporter of Assembly Bill (AB) 392,
which changed the standard for police use of deadly force from “whenever an
‘objectively reasonable’ officer would have done so under the same circumstances” to
“only when necessary to prevent imminent death or serious bodily injury.” See AB
392 Fact Sheet, https://a79.asmdc.org/sites/a79.asmdc.org/files/pdf/AB-392-Fact-
Sheet.pdf (last viewed on Sept. 8, 2020). Mayor Schaaf’s use of the phrase “lawful
but awful” was intended to convey that when laws produce awful results, those laws
must be changed.
On February 20, 2020, Mayor Schaaf joined the Oakland Police Commission
in terminating Chief Kirkpatrick without cause. Mayor Schaaf supported the
creation of Oakland’s Police Commission, whose work also played a critical role in
the Pawlik investigation and resulted in the officers ultimately being held
accountable.
III. STOP DATA AND PAS/RISK MANAGEMENT—TASKS 34 AND 41
The IMT evaluated Task 34 in July 2020 and found the Department in
partial compliance. See Dkt. 1387 at 22, 69th Report. The IMT has deferred its
compliance assessment of Task 41 due to the ongoing reconstruction of the Vision
database. Id. at 28.
A. Stop Data
The long-anticipated dashboards were operationalized in July. And the
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Department is thrilled to have finally hired a highly skilled data manager. When
the new data manager starts next month, the Department will have completed all
50 Stanford recommendations. This is a significant milestone.
Training on the dashboards began with Department captains, along with
demonstrations to other City leaders. The Department will begin training
lieutenants in mid-September. The City extends an open invitation to the Court to
attend an in-person or virtual site visit for a demonstration of the dashboards.
In its most recent assessment of Task 34, the IMT recognized that: The data analyses that we have become accustomed to in the risk management process may paint completely opposite pictures of police stops. In one, the reductions in stop numbers, and sustained high levels of arrest, may be seen as evidence that the process is working well. In the other, the continuing high levels of African Americans and Latinos stopped – and their high search rates, low recoveries, and high arrests – can suggest just the opposite. Without more information on what prompts stops, what prompts searches, what is recovered, what arrests are for, and what happens to the resulting cases, we cannot know which of these opposite pictures is true.
Id. at 23.
We agree. There are numerous ways to look at the data and we appreciate
that some trends and patterns may take on more (or less) significance when the
details of each instance are more closely examined. The change in data collection in
2019 to comply with state requirements make some data more complicated to
meaningfully review on an aggregate level. For example, “search” (reasons for the
search) and “recovery” (whether contraband was recovered during a search)
categories each allow an officer entering data to select more than one reason for a
search and more than one category of recovery. Therefore, a single search and
recovery event may not result in a neat, one-to-one officer-category pairing.
However, the Department conducts more specific drill-downs on stops and searches
through the risk management process for officers identified as outliers. The risk
management dashboards will certainly help supervisors and commanders look at
the data in new ways and permit more efficient drill-downs.
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Our data manager will be critical in enhancing the Department’s
understanding of the relationships among the data and appropriate use of the data.
Training will also be very important.
B. Risk Management/Vision Database
The build-out of the Department’s new performance and risk management
system, Vision, is complete. Now that the system is in production, we are
identifying enhancements and making adjustments to the system based on
operational observations and end-user feedback. Our focus groups have been
particularly productive in providing feedback that helps us to prioritize necessary
modifications to better serve the Department’s end users
The focus groups have also validated the value of utilizing the system’s
dashboards for analyzing the department’s operational (Vision) data in
identification of potential performance and risk areas within the department. The
dashboards are “regarded highly by the first line supervisors and up the chain of
command. The dashboards allow supervisors to focus on the activities of officers
assigned to them, and to make comparisons within and across groups.” Id. at 28.
That said, the City continues its work to enhance/refine Vision making it
easier to use and more beneficial to various Department and City users. On the
“front-end,” the Department and City must make determinations on whether and
how to streamline or add further complexity to automated workflows. On the “back-
end,” City IT, the Department and our vendors must determine the best technology
and the personnel resources necessary to meet our goals, and how to do so while
minimizing the impact to other Vision workflows and the user community.
We agree with the IMT that “establishing a set of clear questions
answerable through the dashboards is important,” particularly while Department
personnel get comfortable using the dashboards and manipulating the data. Id. We
also agree that the “process of exploring the data prompted by new interests and
new questions regarding risks and remedies” is important as well, though we must
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be cautious we do not misinterpret the data. See id. The intended users of this
system for the most part are not professors and statisticians, but law enforcement
command staff and City leaders responsible for a multitude of operational and
administrative tasks each day. A baseline clear understanding of the system and
comfort with the data should be our initial aim.
IV. INTERNAL AFFAIRS TIMELINES—TASK 2
The IMT last evaluated Task 2 in July 2020 and found the Department out of
compliance. Dkt. 1387 at 3, 69th Report.
The Department and the NSA require that 85% of Class I and 85% of Class II
Internal Affairs misconduct investigations be completed within 180 days to ensure
thorough investigation relatively close in time with the conduct and ample
opportunity to impose appropriate discipline.
The Department was previously in compliance on this task but fell below the
85% timely completion rate in 2018. Dkt. 1358 at 32, JCMS (Feb. 18, 2020). In the
past year, the Department has made significant and sustained progress toward once
again achieving an 85% timely completion rate for both Class I and Class II
investigations.
The IMT looked at a sampling of Internal Affairs investigations completed
between January and March 2020 and found that the Department completed 69% of
Class I cases and 84% of Class II cases within 180-day timeline. Dkt. 1387 at 3, 69th
Report. We agree this is too modest an improvement from the IMT’s previous
assessment which found timely completion of 65% of Class I cases and 81% of Class
II cases. Id. However, the Department achieved further improvement between
March and August 2020, measuring a 70% completion rate for Class I
investigations, and surpassing the 85% rate for Class II investigations completed
within 180 days.
///
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Class I investigations involve the most serious misconduct allegations, are
generally more complex investigations, and as a result, take more time to complete.
Accordingly, it is no surprise that it will take longer for the Department to achieve
and sustain an 85% timely completion rate for Class I investigations.
V. FORCE INVESTIGATION AND REPORTING—TASKS 24 AND 25
The IMT’s current assessment is that the Department is in partial
compliance with Tasks 24 and 25. Id. at 11 & 14.
The IMT found that the Department was in compliance with these tasks as
recently as 2018. See Dkt. 1284 at 8, 60th Report (May 23, 2019). But in late 2018,
the OIG and IMT each identified inconsistencies in the Department’s reporting of
uses of force.
The City recognizes that accurate force reporting and use of force
investigations are crucial to police accountability and is pleased to report that the
IMT did not identy any improperly reported or unreported uses of force during its
most recent review.
The IMT inspected 51 Level 3 and Level 4 (lower-level) use of force reports
completed in August and September 2019. Dkt. 1387 at 5, 69th Report. The IMT did
not identify any inappropriate uses of force or any improperly reported or
unreported uses of force. Id. In comparison, for the preceding two-month period
(June and July 2019), the IMT identified one incident where the reported use of
force may not have been appropriate and where one use of force may have gone
Completed Internal Affairs Investigations
March 1 – August 31, 2020
Cases Within 180-day Timeline
Percentage
Class I 126 88 70%
Class II 160 142 89%
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unreported. Dkt. 1363 at 12, 67th Report. This is progress.
The Department continues to be mindful, however, that the IMT’s report
reflects that Level 3 and Level 4 uses of force continue to be used at a higher rate
against African Americans and Latinos. Dkt. 1387 at 12, 69th Report. As discussed
more fully in the City’s previous filing, the City has engaged Dr. Eberhardt and her
Stanford team to examine the Department’s use of force incidents between 2016 and
2019 to gain insight about officers’ decisions to use force, in an effort to ultimately
determine how to effectively address potential bias and reduce racial disparities in
the use-of-force statistics. Dkt. 1358 at 31, JCMS. That work is ongoing. A. Type 32 Use of Force Reporting Update
The Department is committed to consistently accurate force-reporting. To
that end, in collaboration with the Police Commission, and with the approval of the
IMT, the Department wrote and published Special Order (SO) 9196 in December
2019, to remove subjective language and clarify reporting requirements for firearm
pointing and weaponless defense techniques, types of force which have historically
been reported less accurately. SO, 9196 added a new Level 4 use of force called a
“Type 32.” A Type 32 use of force includes force used to overcome resistance of a
person during arrest or detention, or defending oneself or another from combative
action by another person. Dkt. 1387 at 6, 69th Report. Type 32 reporting is intended
to capture other uses of force that don’t fall within existing categories of Type 1-31.
Id. SO 9196 reporting requirements went into effect in Feb 2020. Id. The immediate
and significant spike in use of force numbers was unanticipated and appeared to be
primarily related to the new Type 32 – for example, there were 167 reports for the
same time period in 2019 compared to 618 in the same period in 2020. See id. The
IMT agreed with the Department that further assessment was necessary due to the
unanticipated spike in force reports. Id. The amount of time it was taking officers
and sergeants to report and review these uses of force was removing them from the
field and thereby leaving calls for service standing and if the policy was left in place
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it would likely, and in short order, spell disaster for the City’s public safety response
capabilities. Accordingly, SO 9202 was issued, temporarily removing Type 32 from
the category of a Level 4 used of force. The Department is currently capturing Type
32 uses of force using alternative methods while it explores more permanent
solutions. In the interim, the IMT and Department command staff are reviewing
samples of Type 32 uses of force on a monthly basis. In general, officers are properly
identifying and reporting Type 32 uses of force. Id.
The Department recognizes that Type 32s are uses of force and agrees that
Type 32s must be accurately reported and factored into ongoing risk management
analysis. The Department is making every effort to arrive at a solution that
realistically takes into account the level of accuracy necessary in real-time (i.e.,
real-time confirmation of reporting versus an audit solution), the Department’s
technological capabilities and limitations, and the amount of sergeant-time that the
City can reasonably allow for review of what may fairly be predicted based on the
February 2020 spike as a greater than 350% increase in force reports. As part of
this effort, the Department, with the concurrence of the IMT, is conducting a
workload study on sergeants to arrive at a more accurate understanding of the
resources required for different Type 32 reporting-and-reviewing solutions. B. Significant Improvement in Body-Worn Camera
Activation and De-Escalation Efforts
The IMT found five late activations of body-worn cameras of the 51 use
of force incidents it reviewed from August and September 2020. Id. at 7. In 4 of
these incidents, an OPD supervisor identified and addressed the late activation. Id.
The IMT noted that this is “significant improvement” and “indicates that
supervisors appear to be more closely reviewing PDRDs.” Id.
The IMT reported that it was “encouraged with the improvement in [ ]
announcements and the efforts to deescalate situations prior to using force.” Id. at
13-14. The IMT did not identify any instances in the 51 use of force incidents
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examined where it believed officers could have made additional efforts to explain to
subjects being detained why the detention was occurring prior to using force. Id. at
13. The IMT also noted an increase in the number of incidents where officers
appropriately made the announcement identifying themselves as police officers
where it was appropriate and there was time to do so. Id.
Body-worn cameras are an important police accountability tool. The
Department is actively monitoring body-camera activation compliance and
continuously working to emphasize and improve de-escalation. Accordingly, the
Department appreciates the IMT’s reports on body-camera activations and de-
escalation when the IMT reviews body-camera video.
VI. RECENT PROTESTS
Since George Floyd was killed by Minneapolis police officers while in custody
in May, there have been many inspiring protests within Oakland, which has a long
and proud tradition of social activism. The people of Oakland have also suffered
violence and significant property damage, including within vulnerable communities
that have been hard-hit by the pandemic. Attempting to facilitate peaceful protests
and ensure public safety, the Department was in an extended operational period
from the end of May through July. Especially from May 29 through June 1, officers
faced extraordinarily challenging circumstances, and the Department relied heavily
on mutual aid. Approximately 200 businesses were looted and vandalized, and 137
fires were set. At one point, there were 574 outstanding service calls, including over
100 priority calls.
The Department released publicly its after-action report on the Department’s
crowd control operations from May 29 through June 4. See Crowd Control After-
Action Report May 29, 2020 to June 4, 2020 (Aug. 24, 2020),
https://www.oaklandca.gov/documents/crowd-control-after-action-report-may-29-
2020-to-june-4-2020-1 (last visited Sept. 10, 2020). The purpose of the after-action
report is to outline lessons learned and training opportunities, and assess the
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effectiveness and quality of operations plans. See Training Bulletin III-G, OPD
Crowd Control and Crowd Management Policy at 22,
https://www.oaklandca.gov/documents/opd-tb-iii-g-crowd-control-and-crowd-
management-policy (last visited Sept. 10, 2020).
In addition to the Department’s after-action report, robust investigations—by
Internal Affairs, the Community Police Review Agency, force reviewers, and
external experts—of the City’s response to these events are ongoing. The IMT is
monitoring many of these efforts.
As in many other cities, a group of Plaintiffs sued the City, among other
things seeking a ban on chemical agents and alleging that Oakland Police or mutual
aid officers used excessive force. APTP, et al. v. City of Oakland, et al., N.D. Cal. No.
CV 20-3866 JCS (LB). Working with the Hon. Laurel Beeler—who guided revisions
to the Department’s crowd management policy in 2013—the parties largely reached
agreement on a preliminary injunction that centers on the Department’s existing
crowd management policy and has a mechanism for Plaintiffs to seek instant
recourse if they assert a future violation of the policy. Over the past five years, the
Department has successfully adhered to this policy and facilitated thousands of
gatherings—including mass protests and demonstrations—attended by millions.
After carefully weighing all the issues, the Hon. Joseph C. Spero issued a
preliminary injunction that closely tracks OPD’s crowd management policy but
imposes tighter restrictions on mutual aid. Citing these restrictions, the local
agencies on which the City relies for mutual aid have advised the City that they will
no longer provide mutual aid during protests. OPD is collaborating with the
agencies, Plaintiffs, and the Court to resolve this issue.
Last month, there were additional nighttime assemblies following the
shooting of Jacob Blake in Wisconsin. There were fires and significant vandalism to
residential buildings (including affordable housing), small businesses, and the
County Courthouse. And several officers were assaulted.
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Against that backdrop, OPD stands focused on facilitating peaceful protests
and maintaining public safety.
CONCLUSION
Almost immediately following the parties’ last Court appearance on May 27,
2020, with the pandemic surging, Oakland and other cities throughout the Bay
Area joined cities nationwide in demonstrations seeking justice for George Floyd.
These demonstrations sparked demands for change including, importantly,
meaningful police reforms. In July, the City announced a Reimagining Public Safety
Taskforce to reimagine and reconstruct the public safety system in Oakland by
developing a recommendation for City Council consideration to “increase
community safety through alternative responses to calls for assistance, and
investment in programs that address the root causes of violence and crime with a
goal of 50% reduction in the Oakland Police Department (Department) General
Purpose Fund budget allocation.” See Reimagining Public Safety Taskforce (Jul. 28,
2020), https://www.oaklandca.gov/news/2020/reimagining-public-safety-taskforce
(last visited Sept. 10, 2020). The City is mindful that fewer Department resources
may create additional challenges, though the City remains committed to continued
improvement on every front, even as it faces new and unprecedented challenges
seemingly at every turn. The City looks forward to further discussing the foregoing
issues at the Case Management Conference.
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THE OPOA’S STATEMENT
Intervenor Oakland Police Officers Association continues to collaborate with all
stakeholders in facilitating compliance with the NSA.
Respectfully submitted,
Dated: September 15, 2020 BARBARA J. PARKER, City Attorney BRIGID S. MARTIN, Special Counsel
By: /s/ BRIGID MARTIN*
Attorneys for Defendants CITY OF OAKLAND
JOHN L. BURRIS
Law Offices of John L. Burris
By: /s/ John L. Burris Attorney for Plaintiffs
JAMES B. CHANIN
Law Offices of James B. Chanin
By: /s/ James B. Chanin Attorney for Plaintiffs
ROCKNE A. LUCIA, JR. Rains Lucia Stern St. Phalle & Silver
By: /s/ Rockne A. Lucia, Jr.
Attorney for Intervenor OAKLAND POLICE OFFICERS ASSOCIATION
*Per Local Rule 5-1(i)(3), the filer attests that concurrence in the filing of the
document has been obtained from each of the other Signatories
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