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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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

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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2 JOINT CASE MANAGEMENT STATEMENT Case No. 00-cv-4599 WHO

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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3 JOINT CASE MANAGEMENT STATEMENT Case No. 00-cv-4599 WHO

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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5 JOINT CASE MANAGEMENT STATEMENT Case No. 00-cv-4599 WHO

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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