37 shall have no expectation of privacy in their location should the device be equipped with location-detection capabilities. This includes records of all keystrokes or web -browsing history made on the PCD. The fact that access to a database, service, or website requires a username or password will not create an expectation of privacy if it is accessed through department PCDs or networks (see the Information Technology Use Policy for additional guidance).
Members have no expectation of privacy regarding any communications while using a personally owned PCD for department -related business or when the use reasonably implicates work-related misconduct.
701.3.1 CALIFORNIA ELECTRONIC COMMUNICATIONS PRIVACY ACT (CALECPA)
No member is autho rized to be the sole possessor of a department -issued PCD.
Department-issued PCDs can be retrieved, reassigned, accessed or used by any member as directed by a supervisor without notice. Member use of a department-issued PCD and use of a personal PCD at work or for work-related business constitutes specific consent for access for department purposes. Prior to conducting an administrative search of a PCD, supervisors should consult legal counsel to ensure access is consistent with CalECPA (Penal Code § 1546; Penal Code § 1546.1).
701.4 DEPARTMENT-ISSUED PCD
Depending on a member’s assignment and the needs of the position, the Department may, at its discretion, issue or fund a PCD. Department -issued or funded PCDs are provided as a convenience to facilitate on-duty performance only. Such devices and the associated telephone number shall remain the sole property of the Department and may be subject to inspection or monitoring (including all related records and content) at any time without notice and without cause.
701.4.1 CITY OF BERKELEY AR 2.15 - CITY ISSUED COMMUNICATION EQUIPMENT POLICY
Pursuant to City of Berkeley Administrative Regulation 2.15, text messages held on Department-issued or funded PCDs are to be maintained on the communication device for no less than 30 days from the date sent or received. PCDs that have text features enabled will be set to retain text message history for 30 days. Employees are not permitted to alter the text message history setting or to manually delete saved text messages.
38 701.5 PERSONALLY OWNED PCD
Members may carry a personally owned PCD while on -duty, subject to the following conditions and limitations:
a. Permission to carry a personally owned PCD may be revoked if it is used contrary to provisions of this policy.
b. The Department accepts no responsibility for loss of or damage to a personally owned PCD.
c. The PCD and any associated services shall be purchased, used and maintained solely at the member’s expense.
d. The device shall not be utilized to record or disclose any busi ness-related information, including photographs, video or the recording or transmittal of any information or material obtained or made accessible as a result of employment with the Department, without the express authorization of the Chief of Police or the authorized designee.
e. All work -related documents, emails, photographs, recordings or other public records created or received on a member’s personally owned PCD should be transferred to the Berkeley Police Department and deleted from the member’s PCD as soon as reasonably practicable but no later than the end of the member’s shift.
Except with prior express authorization from their supervisor, members are not obligated or required to carry, access, monitor or respond to electronic communications using a personally owned PCD while off-duty. If a member is in an authorized status that allows for appropriate compensation consistent with policy or existing memorandum of understanding or collective bargaining agreements, or if the member has prior express authorization from his/her supervisor, the member may engage in business -related communications. Should members engage in such approved off-duty communications or work, members entitled to compensation shall promptly document the time worked and communicate the i nformation to their supervisors to ensure appropriate compensation.
Members who independently document off-duty department-related business activities in any manner shall promptly provide the Department with a copy of such records to ensure accurate record keeping.
701.6 USE OF PCD
The following protocols shall apply to all PCDs that are carried while on -duty or used to conduct department business:
39 a. Members may use a PCD to communicate with other personnel only in situations where the use of radio communi cations is either impracticable or not feasible.
PCDs should not be used as a substitute for, as a way to avoid, or in lieu of regular radio communications.
b. Members are prohibited from taking pictures, audio or video recordings or making copies of any such picture or recording media unless it is directly related to official department business. Disclosure of any such information to any third party through any means, requires the express authorization of the Chief of Police or the authorized designee.
c. Members will not access social networking sites for any purpose that is not official department business. This restriction does not apply to a personally owned PCD used during authorized break times.
d. Using PCDs to harass, threaten, coerce or otherwise engage in inappropriate conduct with any third party is prohibited. Any member having knowledge of such conduct shall promptly notify a supervisor.
701.7 SUPERVISOR RESPONSIBILITIES
The responsibilities of supervisors include, but are not limited to:
a. Ensuring that members under their command are provided appropriate training on the use of PCDs consistent with this policy.
b. Monitoring, to the extent practicable, department-issued PCD use in the workplace and taking prompt corrective action if a member is observed or reported to be improperly using a department-issued PCD.
1. An investigation into improper conduct should be promptly initiated when circumstances warrant.
2. Before conducting any administrative search of a member’s personally owned device, supervisors should consult with the Chief of Police or the authorized designee.
701.8 USE WHILE DRIVING
The use of a PCD while driving can adversely affect safety, cause unnecessary distractions and present a negative image to the public. Officers operating emergency vehicles should restrict the use of these devices to matters of an urgent nature and should, where practicable, stop the vehicle at an appropriate location to use the PCD.
Members who are operating department vehicles that are not authorized emergency vehicles shall not use a PCD while driving unless the device is specifically designed and
40 configured to allow hands-free use. In an emergency, a wireless phone may be used to place an emergency call to the Department or other emergency services agency (Vehicle Code § 23123; Vehicle Code § 23123.5). Hands -free use should be restricted to business-related calls or calls of an urgent nature.
701.9 OFFICIAL USE
Members are reminded that PCDs are not secure devices and conversations may be intercepted or overheard. Caution should be exercised while utilizing PCDs to ensure that sensitive information is not inadvertently transmitt
41 ATTACHMENT 3. Employee Speech, Expression and Social Networking: POLICY 1029 (with recommended changes in red)
1029.1 PURPOSE AND SCOPE
This policy is intended to address issues associated with employee use of social networking sites and to provide guidelines for the regulation and balancing of employee speech and expression with the needs of the Department.
Nothing in this policy is intended to prohibit or infringe upon any communication, speech or expression that is protected or privileged under law. This includes speech and expression protected under state or federal constitutions as well as labor or other applicable laws. For example, this policy does not limit an employee from speaking as a private citizen, including acting as an authorized member of a recognized bargaining unit or officer associations, about matters of public concern, such as misconduct or corruption.
Employees are en couraged to consult with their supervisor regarding any questions arising from the application or potential application of this policy.
1029.1.1 APPLICABILITY
This policy applies to all forms of communication including, but not limited to, film, video, print media, public or private speech, use of all Internet services, including the World Wide Web, email, file transfer, remote computer access, news services, social networking, social media, instant messaging, blogs, forums, video and other file-sharing sites.
1029.2 POLICY
Public employees occupy a trusted position in the community, and thus, their statements have the potential to contravene the policies and performance of this department. Due to the nature of the work and influence associated with the law enforcement profession, it is necessary that employees of this department be subject to certain reasonable limitations on their speech and expression. To achieve its mission and efficiently provide service to the public, the Berkeley Police Departmen t will carefully balance the individual employee’s rights against the Department’s needs and interests when exercising a reasonable degree of control over its employees’ speech and expression.
1029.3 SAFETY
Employees should consider carefully the implications of their speech or any other form of expression when using the Internet. Speech and expression that may negatively affect
42 the safety of the Berkeley Police Department employees, such as posting personal information in a public forum, can result in c ompromising an employee’s home address or family ties. Employees should therefore not disseminate or post any information on any forum or medium that could reasonably be anticipated to compromise the safety of any employee, an employee's family or associat es. Examples of the type of information that could reasonably be expected to compromise safety include:
• Disclosing a photograph and name or address of an officer who is working undercover.
• Disclosing the address of a fellow officer.
• Otherwise disclosing where another officer can be located off-duty.
1029.4 PROHIBITED SPEECH, EXPRESSION AND CONDUCT
To meet the department’s safety, performance and public -trust needs, the following are prohibited unless the speech is otherwise protected (for example, an employee speaking as a private citizen, including acting as an authorized member of a recognized bargaining unit or officer associations, on a matter of public concern). These prohibitions pertain whether the device is department -issued or personal and whethe r the member is on or off duty:
a. Speech or expression related to an official duty that tends to compromise or damage the mission, function, reputation or professionalism of the Berkeley Police Department or its employees.
b. Speech or expression that, while no t made pursuant to an official duty, is significantly linked to, or related to, the Berkeley Police Department and tends to compromise or damage the mission, function, reputation or professionalism of the Berkeley Police Department or its employees. Examples may include:
1. Statements that indicate disregard for Berkeley policies, the law or the state or U.S. Constitution.
2. Expression that demonstrates support for criminal activity.
3. Participating in sexually explicit photographs or videos for compensation or distribution.
4. Expressions or speech that may reasonably be interpreted as exhibiting animus toward any racial group, gender identity, nationality, religion, disability, or housing status.
c. Speech or expression that could reasonably be foreseen as having a neg ative impact on the credibility of the employee as a witness. For example, posting statements or expressions to a website that glorify or endorse dishonesty, unlawful discrimination or illegal behavior.
d. Speech or expression of any form that could reasonabl y be foreseen as having a negative impact on the safety of the employees of the Department. For example,
43 a statement on a blog that provides specific details as to how and when prisoner transportations are made could reasonably be foreseen as potentially jeopardizing employees by informing criminals of details that could facilitate an escape or attempted escape.
e. Speech or expression that is contrary to the canons of the Law Enforcement Code of Ethics as adopted by the Berkeley Police Department. f. Use or disclosure, through whatever means, of any information, photograph, video or other recording obtained or accessible as a result of employment with the Department for financial or personal gain, or any disclosure of such materials without the express authorization of the Chief of Police or the authorized designee. g. Posting, transmitting or disseminating any photographs, video or audio recordings, likenesses or images of department logos, emblems, uniforms, badges, patches, marked vehicles, equipment or other mate rial that specifically identifies the Berkeley Police Department on any personal or social networking or other website or web page, without the express authorization of the Chief of Police. h. Accessing websites for non -authorized purposes, or use of any pers onal communication device, game device or media device, whether personally or department-owned, for personal purposes while on -duty, except in the following circumstances:
1. When brief personal communication may be warranted by the circumstances (e.g., to inform family of extended hours).
2. During authorized breaks , in which case such usage should be limited as much as practicable to areas out of sight and sound of the public and shall not be disruptive to the work environment.
Employees should take reasonable and prompt action to remove any content, including content posted by others, that is in violation of this policy from any web page or website maintained by the employee (e.g., social or personal website).
1029.4.1 UNAUTHORIZED ENDORSEMENTS AND ADVERTISEMENTS While employees are not restricted from engaging in the following activities as private citizens or as authorized members of a recognized bargaining unit or officer associations, employees may not represent the Berkeley Police Department or identify themselves in any way that could be reasonably perceived as representing the Berkeley Police Department in order to do any of the following, unless specifically authorized by the Chief of Police (Government Code § 3206; Government Code § 3302):
a. Endorse, support, oppose or contradict any political campaign or initiative. b. Endorse, support, oppose or contradict any social issue, cause or religion. c. Endorse, support or oppose any product, service, company or other commercial entity.
44 d. Appear in any commercial, soc ial or nonprofit publication or any motion picture, film, video, public broadcast or on any website.
Additionally, when it can reasonably be construed that an employee, acting in his/her individual capacity or through an outside group or organization (e.g., bargaining group or officer associations), is affiliated with this department, the employee shall give a specific disclaiming statement that any such speech or expression is not representative of the Berkeley Police Department.
Employees retain their right to vote as they choose, to support candidates of their choice and to express their opinions as private citizens, including as authorized members of a recognized bargaining unit or officer associations, on political subjects and candidates at all times while off duty.
However, employees may not use their official authority or influence to interfere with or affect the result of an election or a nomination for office. Employees are also prohibited from directly or indirectly using their official authority to coerce, command or advise another employee to pay, lend or contribute anything of value to a party, committee, organization, agency or person for political purposes (5 USC § 1502).
1029.5 PRIVACY EXPECTATION
Employees forfeit any expectation of priva cy with regard to e -mails, texts or anything published or maintained through file-sharing software or any Internet site (e.g., Facebook, MySpace) that is accessed, transmitted, received or reviewed on any department technology system.
The Department reserves the right to access, audit and disclose for whatever reason any message, including attachments, and any information accessed, transmitted, received or reviewed over any technology that is issued or maintained by the Department. This includes the department e-mail system, computer network or any information placed into storage on any department system or device.
It also includes records of all key strokes or web-browsing history made at any department computer or over any department network.
The fact that access to a database, service or website requires a user name or password will not create an expectation of privacy if it is accessed through a department computer or network. However, the Department may not require an employee to disclose a personal user name or password or open a personal social website, except when access is reasonably believed to be relevant to the investigation of allegations of work related misconduct (Labor Code § 980).
45 1029.6 CONSIDERATIONS
In determining whether to grant authorization of any speech or conduct that is prohibited under this policy, the factors that the Chief of Police or authorized designee should consider include:
a. Whether the speech or conduct would negatively affect the efficiency of delivering public services.
b. Whether the speech or conduct would be contrary to the good order of the Department or the efficiency or morale of its members.
c. Whether the speech or conduct would reflect unfavorably upon the Department.
d. Whether the speech or conduct would negatively affe ct the member’s appearance of impartiality in the performance of his/her duties. e. Whether similar speech or conduct has been previously authorized. f. Whether the speech or conduct may be protected and outweighs any interest of the Department.
1029.7 TRAINING
Subject to available resources, the Department should provide training regarding employee speech and the use of social networking to all members of the Department.
46 ATTACHMENT 4 . EARLY WARNING SYSTEM: POLICY 1041 (recommended changes in red)
1041.1 PURPOSE
The purpose of this Order is to establish policy and procedures for an informal performance review and intervention program, the “Early Warning System” (EWS). The program monitors employee performance that may be inconsistent with professional police conduct and cooperatively engages employees to resolve areas of concern. The goal of EWS is early identification of employee performance issues and correction of these issues through constructive counseling sessions rather than the formal disciplinary process.
1041.2 POLICY
All employees shall participate in the EWS program and comply with the guidelines set forth in this Order.
Participation in the EWS program shall not be deemed punitive, nor is it a formal disciplinary process.
a. Notwithstanding the initiation of the EWS process, the Department retains its right and responsibilities with regard to investigation of policy violation and enforcement of employee discipline.
1041.3 PROCEDURES
Employee behavior or performance that is subject to EWS r eview includes, but is not limited to:
a. Racial, housing status, or other demographic disparities on stop, arrest, and/or search data that are higher than the department average; b. Poor attendance and/or abusive use of leave;
c. Multiple formal sustained or not sustained complaints; d. Multiple informal complaint inquiries;
e. Multiple use of force incidents;
f. Multiple obstructing/resisting arrest incidents;
g. Multiple vehicle collisions; and,
h. Substandard conduct/performance concerns observed by a superior officer.
The Racial and Identify Protection Act (RIPA) data will be available to supervisors in the form of an electronic data dashboard. This will provide supervisors and commanders with
47 the ability to review stop data created by officers assigned under their span of control.
The individual stop data for individual officers should be considered a personnel record as it may provide supervisory guidance for specific officer stop data, if necessary. The public release of any RIPA data will remain anonymized as previously agreed upon Meet and Confer with the Berkeley Police Association and provisions of Government Code 3300 et.al.
Supervisors, commanders and managers shall monitor the activity of their subordinate employees to identify actual or perceived unprofessional beh avior and/or substandard performance that is subject to EWS review, and if identified, communicate such information to the Chief of Police via the Chain of Command.
Personnel assigned to the Internal Affairs Bureau (IAB) shall monitor all formal and informal allegations of employee misconduct received by their office for behavior or performance that is subject to EWS review, and if identified, communicate such information to the Chief of Police.
Personnel assigned to the Support Services Division Report Review Detail shall forward to the Chief of Police copies of all reports pertaining to:
a. Obstruction/resisting arrests cases (i.e., Penal Code §§148, 69, etc.)
Administrative reports regarding use of force shall be forwarded to the Chief of Police as directed in Policy 300.
Quarterly audits will be conducted of employees whose behavior or performance includes any of the factors included in (a) through (h) above.
1041.4 MANAGEMENT OF PROGRAM RECORDS
The Office of the Chief of Police shall be responsible for aggregation and administrative management of information, data and records associated with the EWS program. a. The administrative assistant assigned to the Office of the Chief of Police shall be responsible for preparing a quarterly report summarizing information and activities associated with the EWS program for use in administrative review.
Information, data and records associated with the EWS program are used for personnel purposes. Accordingly, they are confidential personnel files and not public records.
Documents, data and records shall be maintained by the Office of the Chief of Police for a period of two (2) years.
48 Access to EWS records shall be restricted to the supervisor, commander and/or manager involved in the monitoring of a particular employee, subject to the approval of the Chief of Police.
a. An individual employee may be granted access to EWS records that pertain to him/her.
1041.5 ADMINISTRATIVE REVIEW BOARD
The Chief of Police will convene a quarterly Review Board comprised of all Division Commanders to review program records to determine if initiation of the EWS Program is recommended.
Upon consideration of the Review Board’s recommendation, the Chief of Police may direct an employee to participate in the EWS program.
1041.6 INITIATION OF EWS PROGRAM
Upon the direction of the Chief of Police, an informal counseling meeting will be held that may include:
a. The subject employee;
b. The employee’s supervisor;
c. An Internal Affairs Bureau sergeant;
d. The employee’s Lieutenant; and,
e. The employee’s Division Commander, who shall preside over the meeting.
Unless impractical, the counseling meeting shall be held during the employee’s regularly scheduled working hours.
a. If the meeting cannot be scheduled during the employee’s regularly scheduled working hours, personnel participating while off -duty shall be compensated with compensatory time (minimum time as may be authorized by the employee’s MOU) or, with Division Commander approval, allowed to flex an equal amount of time within that same work week.
The su bject employee may have one fellow employee accompany him/her to the counseling meeting.
a. The accompanying employee’s presence is allowed to offer general support to the subject employee, not to be an active participant in the counseling meeting.
49 As in ge neral supervisor counseling meetings, the employee shall be informed of the behavioral and/or performance concern(s) at issue, and he/she shall be allowed an opportunity to offer a response.
The subject employee may be given information regarding the City of Berkeley Employee Assistance Program.
No formal document will be generated referencing this meeting, and the meeting shall not be deemed a punitive or disciplinary proceeding against the employee. There shall be no permanent record of the meeting.
50 ATTACHMENT 5. STANDARDS OF CONDUCT : Policy 321 (with recommended changes in red)
321.1 PURPOSE AND SCOPE
This policy establishes standards of conduct that are consistent with the values and mission of the Berkeley Police Department and are expected of all department members.
The standards contained in this policy are not intended to be an exhaustive list of requirements and prohibitions but they do identify many of the important matters concerning conduct. In addition to the provisions of this policy, me mbers are subject to all other provisions contained in this manual, as well as any additional guidance on conduct that may be disseminated by this department or a member’s supervisors.
321.2 POLICY
The continued employment or appointment of every member of the Berkeley Police Department shall be based on conduct that reasonably conforms to the guidelines set forth herein. Failure to meet the guidelines set forth in this policy, whether on- or off-duty, may be cause for disciplinary action.
321.3 DIRECTIVES AND ORDERS
Members shall comply with lawful directives and orders from any department supervisor or person in a position of authority, absent a reasonable and bona fide justification.
321.3.1 UNLAWFUL OR CONFLICTING ORDERS
Supervisors shall not knowingly issue orders or directives that, if carried out, would result in a violation of any law or department policy. Supervisors should not issue orders that conflict with any previous order without making reasonable clarification that the new order is intended to countermand the earlier order.
No member is required to obey any order that appears to be in direct conflict with any federal law, state law, local ordinance, or policy. Following a known unlawful order is not a defense and does not relieve the m ember from criminal or civil prosecution or administrative discipline. If the legality of an order is in doubt, the affected member shall ask the issuing supervisor to clarify the order or shall confer with a higher authority. The responsibility for refusa l to obey rests with the member, who shall subsequently be required to justify the refusal.
51 Unless it would jeopardize the safety of any individual, members who are presented with a lawful order that is in conflict with a previous lawful order, department policy or other directive shall respectfully inform the issuing supervisor of the conflict. The issuing supervisor is responsible for either resolving the conflict or clarifying that the lawful order is intended to countermand the previous lawful order or directive, in which case the member is obliged to comply. Members who are compelled to follow a conflicting lawful order after having given the issuing supervisor the opportunity to correct the conflict, will not be held accountable for disobedience of the lawful order or directive that was initially issued.
The person countermanding the original order shall notify, in writing, the person issuing the original order, indicating the action taken and the reason.
321.3.2 SUPERVISOR RESPONSIBILITIES
Supervisors and managers are required to follow all policies and procedures and may be subject to discipline for:
a. Failure to be reasonably aware of the performance of their subordinates or to provide appropriate guidance and control.
b. Failure to promptly and fully report any known misconduct of a member to his/her immediate supervisor or to document such misconduct appropriately or as required by policy.
c. Directing a subordinate to violate a policy or directive, acquiesce to such a violation, or are indifferent to any such violation by a subordinate. d. The unequal or disparate exercise of authority on the part of a supervisor toward any member for malicious or other improper purpose.
321.4 GENERAL STANDARDS
Members shall conduct themselves, whether on - or off -duty, i n accordance with the United States and California Constitutions and all applicable laws, ordinances , policies, and rules enacted or established pursuant to legal authority.
Members shall familiarize themselves with policies and procedures and are responsi ble for compliance with each. Members should seek clarification and guidance from supervisors in the event of any perceived ambiguity or uncertainty.
Employees shall at all times be courteous and civil to the public and to one another. They shall be quiet, orderly, attentive and respectful and shall exercise patience and discretion in the performance of their duties.
52 Discipline may be initiated for any good cause. It is not mandatory that a specific policy or rule violation be cited to sustain discipline. This policy is not intended to cover every possible type of misconduct.
321.5 CAUSES FOR DISCIPLINE
The following are illustrative of causes for disciplinary action. This list is not intended to cover every possible type of misconduct and does not prec lude the recommendation of disciplinary action for violation of other rules, standards, ethics and specific action or inaction that is detrimental to efficient department service.
321.5.1 LAWS, RULES AND ORDERS
a. Violation of, or ordering or instructing a subordinate to violate any policy, procedure, rule, order, directive, requirement or failure to follow instructions contained in department or City manuals.
b. Disobedience of any legal directive or order issued by any department member of a higher rank.
c. Violation of federal, state, local or administrative laws, rules, policies, or regulations.
321.5.2 ETHICS
a. Using or disclosing one’s status as a member of the Berkeley Police Department, whether on duty or off-duty, in any way that could reasonably be perc eived as an attempt to gain influence or authority for non-department business or activity. b. The wrongful or unlawful exercise of authority on the part of any member for malicious purpose, personal gain, willful deceit or any other improper purpose. c. The rec eipt or acceptance of a reward, fee or gift from any person for service incident to the performance of the member's duties (lawful subpoena fees and authorized work permits excepted).
d. Acceptance of fees, gifts or money contrary to the rules of this departm ent and/or laws of the state.
e. Offer or acceptance of a bribe or gratuity.
f. Misappropriation or misuse of public funds, property, personnel or services.
321.5.3 DISCRIMINATION, OPPRESSION, OR FAVORITISM
Discriminating against, oppressing, or providing fav oritism to any person because of actual or perceived characteristics such as race, ethnicity, national origin, religion, sex,
53 sexual orientation, gender identity or expression, age, disability, economic status, cultural group, veteran status, marital status, housing status, and any other classification or status protected by law, or intentionally denying or impeding another in the exercise or enjoyment of any right, privilege, power, or immunity, is unlawful.
321.5.4 RELATIONSHIPS
a. Unwelcome solicitation of a personal or sexual relationship while on -duty or through the use of one’s official capacity, whether on duty of off-duty. b. Engaging in on-duty sexual activity including, but not limited to, sexual intercourse, excessive displays of public affection or other sexual contact. c. Establishing or maintaining an inappropriate personal or financial relationship, as a result of an investigation, with a known victim, witness, suspect or defendant while a case is being investigated or prosecuted, or as a direct result of any official contact.
d. Associating with or joining a criminal gang, organized crime and/or criminal syndicate when the member knows or reasonably should know of the criminal nature of the organization. This includes any organization involved in a defi nable criminal activity or enterprise, except as specifically directed and authorized by this department.
e. Associating on a personal, rather than official basis with persons who demonstrate recurring involvement in serious violations of state or federal laws after the member knows, or reasonably should know of such criminal activities, except as specifically directed and authorized by this department.
f. Participation in a law enforcement gang as defined by Penal Code § 13670.
Participation is grounds for termination (Penal Code § 13670).
321.5.5 ATTENDANCE
a. Leaving the job to which the member is assigned during duty hours without reasonable excuse and proper permission and approval.
b. Unexcused or unauthorized absence or tardiness.
c. Excessive absenteeism or abuse of leave privileges.
d. Failure to report to work or to place of assignment at time specified and fully prepared to perform duties without reasonable excuse.
e. Failure to sign in/out for duty on the timesheet, unless specifically authorized by a supervisor.
54 321.5.6 UNAUTHORIZED ACCESS, DISCLOSURE OR USE
a. Unauthorized and inappropriate intentional release of confidential or protected information, materials, data, forms or reports obtained as a result of the member’s position with this department.
1. Members of this department shall not disclose the name, address or image of any victim of human trafficking except as authorized by law (Penal Code § 293). (b)
b. Disclosing to any unauthorized person any active investigation information. c. The use of any information, ph otograph, video or other recording obtained or accessed as a result of employment or appointment to this department for personal or financial gain or without the express authorization of the Chief of Police or the authorized designee.
d. Loaning, selling, all owing unauthorized use, giving away or appropriating any Berkeley Police Department badge, uniform, identification card or department property for personal use, personal gain or any other improper or unauthorized use or purpose.
e. Using department resources in association with any portion of an independent civil action. These resources include, but are not limited to, personnel, vehicles, equipment and non-subpoenaed records.
321.5.7 EFFICIENCY
a. Neglect of duty.
b. Unsatisfactory work performance including, bu t not limited to, failure, incompetence, inefficiency or delay in performing and/or carrying out proper orders, work assignments or the instructions of supervisors without a reasonable and bona fide excuse.
c. Concealing, attempting to conceal, removing or de stroying defective or incompetent work.
d. Unauthorized sleeping during on-duty time or assignments. e. Failure to notify the Department within 72 hours of any change in name, residence address or contact telephone number(s).
321.5.8 PERFORMANCE
a. Failure to di sclose or misrepresenting material facts, or making any false or misleading statement on any application, examination form, or other official document, report or form, or during the course of any work-related investigation. b. The falsification of any work -related records, making misleading entries or statements with the intent to deceive or the willful and unauthorized removal,
55 alteration, destruction and/or mutilation of any department record, public record, book, paper or document.
c. Failure to participate in , or giving false or misleading statements, or misrepresenting or omitting material information to a supervisor or other person in a position of authority, in connection with any investigation or in the reporting of any department-related business.
d. Being u ntruthful or knowingly making false, misleading or malicious statements that are reasonably calculated to harm the reputation, authority or official standing of this department or its members.
e. Disparaging remarks or conduct concerning duly constituted authority to the extent that such conduct disrupts the efficiency of this department or subverts the good order, efficiency and discipline of this department or that would tend to discredit any of its members.
f. Unlawful gambling or unlawful betting at any time or any place. Legal gambling or betting under any of the following conditions:
1. While on department premises.
2. At any work site, while
3. on-duty or while in uniform, or while using any department equipment or system.
4. Gambling activity undertaken as part of an officer official duties and with the express knowledge and permission of a direct supervisor is exempt from this prohibition.
g. Entering any place of amusement while on duty, except when necessary in the performance of duty or periodic inspection.
h. Improper political activity including:
1. Unauthorized attendance while on -duty at official legislative or political sessions.
2. Solicitations, speeches or distribution of campaign literature for or against any political candidate or position while on-duty or, on department property except as expressly authorized by City policy, the memorandum of understanding, or the Chief of Police.
i. Engaging in political activities during assigned working hours except as expressly authorized by City policy, the memorandum of understand ing, or the Chief of Police.
j. Joining or participating in any employee organization except an employee organization which is composed solely of peace officers which concerns itself solely and exclusively with the wages, hours, working conditions, welfare an d advancement of academic and vocational training in furtherance of the police profession and which is not subordinate to any other organization.
56 k. Failure to secure the permission of a Commanding Officer before placing any material on a Departmental bulletin board.
l. Using departmental business cards for anything other than official business. m. Any act on- or off-duty that brings discredit to this department.
321.5.9 CONDUCT
a. Failure of any member to promptly and fully report activities on his/her part or the part of any other member where such activities resulted in contact with any other law enforcement agency that may result in criminal prosecution or discipline under this policy.
b. Failure of any member to report conduct or expressions of any other member that are in violation of Department policy, state law, or the Constitution. c. Unreasonable and unwarranted force to a person encountered or a person under arrest.
d. Exceeding lawful peace officer powers by unreasonable, unlawful or excessive conduct.
e. Unauthorized or unlawful fighting, threatening or attempting to inflict unlawful bodily harm on another.
f. Engaging in horseplay that reasonably could result in injury or property damage. g. Engaging in discourteous, disrespectful or discriminatory treatment of any member of the public or any member of this department or the City. h. Use of obscene, indecent, profane or derogatory language while on -duty or in uniform, or while off-duty in a way that brings discredit on the Department. i. Engaging in criminal, dishonest, or disgr aceful conduct, whether on - or off-duty, that adversely affects the member’s relationship with this department. j. Unauthorized possession of, loss of, or damage to department property or the property of others, or endangering it through carelessness or maliciousness. k. Attempted or actual theft of department property; misappropriation or misuse of public funds, property, personnel or the services or property of others; unauthorized removal or possession of department property or the property of another person.
l. Activity that is incompatible with a member’s conditions of employment or appointment as established by law or that violates a provision of any memorandum of understanding or contract to include fraud in securing the appointment or hire. m. Initiating any civ il action for recovery of any damages or injuries incurred in the course and scope of employment or appointment without first notifying the Chief of Police of such action.
57 n. Incurring unauthorized expense - Employees shall not knowingly and intentionally incur any unauthorized Departmental expense or liability without approval of a superior officer or supervisor when necessary under emergency conditions. o. Failure to provide information to citizens - Employees shall comply whenever possible with requests by cit izens for public information. If necessary, they shall direct such persons to the nearest location where information may be obtained. p. Failure to Identify - Employees on official business shall identify themselves as Berkeley Police employees or officers. When requested, employees shall promptly state their name, rank and badge number, except when disclosure of identity could compromise safety and/or an investigation (i.e., riot situations, undercover operations, etc.).
q. Failure to maintain communication, when on duty or officially on call - Employees who are on duty or officially on call shall be directly available by normal communication or shall keep their office, supervisor, or commanding officer informed of the means by which they may be reached when no t immediately available.
r. Any other on-- or off--duty conduct which any member knows or reasonably should know is unbecoming a member of this department, is contrary to good order, efficiency or morale, or tends to reflect unfavorably upon this department o r its members.
321.5.10 SAFETY
a. Failure to observe or violating department safety standards or safe working practices.
b. Failure to maintain current licenses or certifications required for the assignment or position (e.g., driver license, first aid).
c. Failure to maintain good physical condition sufficient to adequately and safely perform law enforcement duties.
d. Unsafe firearm or other dangerous weapon handling to include loading or unloading firearms in an unsafe manner, either on- or off- duty. e. Carrying, wh ile on the premises of the work place, any firearm or other lethal weapon that is not authorized by the member’s appointing authority. f. Unsafe or improper driving habits or actions in the course of employment or appointment.
g. Any personal action contributing to a preventable traffic collision in the course of employment or appointment.
h. Concealing or knowingly failing to report any on -the-job or work-related accident or injury as soon as practicable but within 24 hours.
58 321.5.11 INTOXICANTS
a. Reporting for work:
1. Reporting for work or being at work while intoxicated or when the member’s ability to perform assigned duties is impaired due to the use of alcohol, medication or drugs, whether legal, prescribed or illegal. b. Possession:
1. Possession or use of alcohol at any work site or while on -duty, except as authorized in the performance of an official assignment. A member who is authorized to consume alcohol is not permitted to do so to such a degree that it may impair on-duty performance.
2. Unauthorized possession, use of, or attempting to bring a controlled substance, illegal drug or non-prescribed medication to any work site. c. Intoxicants on-duty:
1. Use of Intoxicants. Except as necessary in the performance of an official assignment, having the odor of an alcoholic beve rage on the person, clothing, or breath, being under the influence of alcohol or other intoxicants, or the consumption of alcohol or other intoxicants while on duty is strictly prohibited.
2. A Command Officer must give prior approval for any use of alcohol i n the performance of an official assignment.
d. Prescription medication:
1. Employees may use prescription medications, except medical marijuana, while on duty pursuant to the specific instructions of a physician who has advised the employee that the prescribed medication in the amount actually ingested does not adversely affect the employee’s ability to safely perform their duties, including tasks that require physical coordination, mental alertness and sound judgment, such as, operating office equipment and driving a vehicle, or, in the case of sworn officers, making detentions/arrests and handling weapons.
e. Use of marijuana:
1. Possession of marijuana, including medical marijuana, or being under the influence of marijuana on or off -duty is prohibited and may lead t o disciplinary action.
f. Intoxicants in uniform:
1. No employee off duty and in uniform, or in any part of uniform dress, shall:
i. Consume any alcoholic beverage or other intoxicant in public view or in any place accessible to the public;
ii. Be in public with the od or of an alcoholic beverage on the person, clothing, or breath; or
iii. Be under the influence of alcohol or other intoxicants.
59 g. Intoxicants off-duty:
1. No off -duty employee shall consume any alcoholic beverage or other intoxicant to an extent which renders one un fit to report for one's next regular tour of duty (including having the odor of an alcoholic beverage on the person), which results in the of violation of any law, or which results in the commission of an obnoxious or offensive act which might tend to discredit the Department.
60 ATTACHMENT 6. Overtime Compensation Requests: Policy 1019
The PAB does not recommend specific changes here; however, the policy should stipulate the circumstances, or types of circumstances, that would necessitate bypassing the otherwise straightforward directive in Section 1019.1.1 of this policy that “all requests to work overtime should be approved in advance.” Additionally, excessive overtime should be included as a factor that triggers an early system audit.
1019.1 PURPOSE AND SCOPE
It is the policy of the Department to compensate non -exempt salaried employees who work authorized overtime either by payment of wages as agreed and in effect through the Memorandum of Understanding (MOU), or by the allowance of accrual of compen satory time off. In order to qualify for either, the employee must complete and submit an Extraordinary Duty Report as soon as practical after overtime is worked.
1019.1.1 DEPARTMENT POLICY
Because of the nature of police work, and the specific needs of the Department, a degree of flexibility concerning overtime policies must be maintained.
Non-exempt employees are not authorized to volunteer work time to the Department. All requests to work overtime shall be approved in advance by a supervisor. If circumstances do not permit prior approval, then approval shall be sought as soon as practical during the overtime shift and in no case later than the end of shift in which the overtime is worked.
Short periods of work at the end of the normal duty day (e.g., l ess than one hour in duration) may be handled unofficially between the supervisor and the employee by flexing a subsequent shift schedule to compensate for the time worked rather than by submitting requests for overtime payments. If the supervisor authoriz es or directs the employee to complete a form for such a period, the employee shall comply.
The individual employee may request compensatory time (aka "comp time") in lieu of receiving overtime payment.
1019.2 TYPES OF OVERTIME AND COMPENSATION
Time spent in a pay status but not actually worked (e.g., sick leave, vacation leave, comp time, holiday leave, etc.) shall be considered "time worked" in computing the basic forty- hour week. However, employees shall be eligible to work in an overtime capacity whi le
61 actually on such absence, but only in accordance with the provisions of the current MOU between the City of Berkeley and the employee's working group.
When a City recognized holiday falls within the workweek, the employee's basic workweek is reduced by eight hours for each holiday.
If an employee commences or terminates employment with the City within the workweek or is on suspension or leave of absence without pay during the workweek, the employee is not eligible for overtime benefits until hours worked exceed forty hours during that week.
With the exception of court overtime situations, an employee's name and overtime worked shall be reflected on a time sheet.
Unless specifically stated otherwise, all overtime is awarded at time and a half. a. Non-sworn personnel receive double time after 12 hours in any 24-hour period. b. Sworn personnel receive holiday overtime at the straight time rate; c. Non-sworn personnel receive double time for Christmas and Thanksgiving. d. An explosives technician shall receive double time for time spent (from call to completion) in dealing with explosives, whether on or off duty. e. Special Response Team members shall receive an additional 5% pay when involved in an active SRT incident, either on or off duty. f. Field Training Officers shall rec eive an additional 10% differential when actually working as a Field Training Officer.
g. The Field Training Program Sergeant shall receive a 5% salary differential while occupying that position.
h. The Homicide Sergeant shall receive a 4% salary differential. Homicide detectives shall receive a 3% salary differential.
Those holding the classification of Captain are excluded from overtime benefits.
1019.3 REQUEST FOR OVERTIME COMPENSATION
1019.3.1 EMPLOYEES RESPONSIBILITY
Employees shall complete the Extraordinary Duty Reports immediately after working the overtime and turn them in to their immediate supervisor or the Watch Commander.
Employees submitting Extraordinary Duty Reports for on -call pay when off duty shall submit the forms to their supervisor the first day after returning for work.
1019.3.2 SUPERVISORS RESPONSIBILITY
The supervisor who verifies the overtime earned shall verify that the overtime was worked before approving the request.
62 After approval, the Extraordinary Duty Report shall be forwar ded to the employee's Division Captain for final approval.
1019.3.3 DIVISION CAPTAIN RESPONSIBILITY
The Division Captain, after approving payment, shall then forward the report to the Payroll Clerk for review.
1019.4 ACCOUNTING FOR OVERTIME WORKED
Employees are to record the actual time worked in an overtime status. In some cases, the Memorandum of Understanding provides that a minimum number of hours will be paid, (e.g., four hours for Court). The supervisor will enter the actual time worked.
1019.4.1 ACCOUNTING FOR PORTIONS OF AN HOUR
When accounting for less than a full hour, time worked shall be rounded up to the nearest quarter of an hour as indicated by the following chart:
TIME WORKED INDICATE ON CARD
1 to 15 minutes .25
16 to 30 minutes .50
31 to 45 minutes .75
46 to 60 minutes 1 hour
1019.4.2 VARIATION IN TIME REPORTED
Where two or more employees are assigned to the same activity, case, or court trial and the amount of time for which payment is requested varies from that reported by the other officer, the Watch Commander or other approving supervisor may require each employee to include the reason for the variation on the Extraordinary Duty Report.
1019.5 RECOVERY / COMPENSATORY OVERTIME (COMP TIME)
Recovery / Compensatory overtime (comp time) is overtime credited with time rather than pay.
63 To obtain comp time credit the employee shall promptly submit a completed Extraordinary Duty Report for approval by both the employee's supervisor and commanding officer.
It is City an d Police Department policy that employees not be permitted to accumulate excessive comp time.
a. Sworn employees are allowed to accrue up to 120 hours of comp time. b. Non-sworn employees are allowed to accrue up to 90 hours of comp time.
Employees may be allowe d comp time off only when that amount of time has been previously accumulated.
An employee who wishes to use accumulated comp time shall make such request on an Absence Report submitted to his/her supervisor, who shall determine if the absence would hinder the unit's operation and either approve or deny the request. Within the Operations Division, the final decision rests with the Patrol Staffing Lieutenant.
1019.6 OVERTIME / SHIFT EXTENSION
Overtime shall be defined as time worked by an employee in exc ess of 40 hours per week. For paid overtime to be credited, an employee is required to submit an Extraordinary Duty Report immediately following the overtime assignment.
An Extraordinary Duty Report requires approval from the employee's supervisor and commanding officer, both of whom must check the report for accuracy, ensuring that the "reason" and the paid overtime budget designations are properly stated. a. Completed Extraordinary Duty Reports must be routed to the Division Captain for final approval.
b. Completed reports must be routed to the Payroll Clerk no later than 1400 hours on the Monday before the payday in order to be included in that pay period.
1019.7 HOLIDAY OVERTIME
Holiday overtime is earned in lieu of taking the time off during the same week of a holiday or when an employee works any part of a recognized City of Berkeley holiday or has that day as a regularly scheduled day off.
Holiday overtime is awarded at time for time for sworn employees; for non -sworn employees it is awarded at time and a half, however on Thanksgiving and Christmas it is awarded at double time.
Holiday overtime may be received as either paid overtime or compensatory overtime (if the maximum accrual of compensatory overtime has not been reached). a. Sworn employees have the option of either pay or compensatory overtime.
64 b. Non-sworn employees require Division Captain approval for compensatory overtime.
In lieu of pay or comp time, an employee may be allowed an alternative day off during the same calendar week as the holiday with supervisor approval.
When a holiday occurs during an employee's vacation leave, the holiday shall not be charged as vacation leave and the employee’s leave may be extended accordingly, with supervisor approval.
The choice of comp time or holiday pay shall be computed by the Payroll Clerk from information provided on the timesheets.
1019.8 COURT OVERTIME
Court overtime is defined as that overtime worked in connection with an assigned appearance before any criminal or civil court, Police Review Commission meeting or Board of Inquiry, BPD Board of Review, and any other specially approved appearance on behalf of another City department or commission.
Unless otherwise approved by a Commanding Officer, all court overtime shall be paid.
A sworn employee who makes an off-duty court appearance shall receive a minimum of four hours overtime unless his or her scheduled duty reporting time, regular shift or overtime shift is less than four hours after the scheduled court appearance in which case the employee will receive overtime in the lesser amount.
Non-sworn employees shall receive a minimum of three hours overtime unless their scheduled duty reporting time is less than three hours after the scheduled court appearance in which case the non -sworn employee will receiv e overtime in the lesser amount.
Overtime spent conferring with the prosecuting attorney will be considered as court overtime and part of the court session only if the employee's presence is required in court shortly after the conference.
For off duty, out of town court appearances, travel constitutes court overtime and is determined by the round-trip time from the Public Safety Building.
An employee required to attend two or more court sessions on the same day is eligible for overtime compensation during t he period between the sessions if subpoenaed on his/her day off (limited to a maximum of two hours between each session) but is not eligible for session break compensation if court appearance falls on a regular duty day.
To receive court overtime credit an employee shall submit an Extraordinary Duty Report.
65 a. The subpoena should be attached and case number indicated if either or both are available.
b. The overtime report is to be completed by the employee and should specify the amount of time required for "testifying/conferring" or "time waiting" or indicate that they were “not needed”.
c. The employee's supervisor shall review the report for accuracy and complete the lower boxed area, indicating the court paid overtime budget code, the activity code and the proper project designation.
1019.9 COURT OVERTIME - TELEPHONE STANDBY
a. Sworn employees who are placed on telephone standby for court will be given comp time (in accordance with the current MOU between the City of Berkeley and the Berkeley Police Association) as follows:
1. Duty Day: One-hour minimum comp time and hour for hour thereafter.
2. Day Off: Two-hour minimum comp time and hour for hour thereafter. b. To receive compensatory overtime credit for telephone standby an officer shall submit an Extraordinary Duty Report.
1. The subpoena should be attached and case number indicated if either or both are available.
2. The report is to be completed by the officer and shall specify the case number and the name of the Deputy District Attorney placing him/her on telephone standby.
1019.10 TRAINING OVERTIME
Training overtime is earned when an employee is assigned to attend a class, conference or seminar during off duty hours. Training overtime shall be reported on an Extraordinary Duty Report. To receive credit for the time spent training, a Training Time Credit Record shall be completed and routed to Personnel and Training.
Employees attending schools or classes away from the PSB will normally be credited with an eight-hour day even though the number of hours may vary due to the nature of the instruction, see also the Attendance at Conferences and Meetings Policy.
1019.11 EMERGENCY / EMERGENCY ON-CALL OVERTIME
An employee shall be paid or given comp time off for being placed on emergency on-call status as follows:
66 a. An employee w ho is placed on emergency on -call status on his or her regularly scheduled work day shall be paid for a minimum of one hour and at a one quarter (¼) time rate.
b. An employee who is placed on emergency on -call status on his or her regularly scheduled day off shall be paid for a minimum of two hours and at a one quarter (¼) time rate.
c. Emergency Overtime - An employee is guaranteed at least three hours overtime when called to emergency overtime duty from his or her residence. If the employee's regular reporting time is less distant than the guaranteed overtime the employee will receive overtime in that lesser amount.
67 APPENDIX
68 Appendix 1. City of Berkeley Contract for services with Swanson & McNamara LLP, Vendor Contract #32300109
Contract Number: 32300109
Contractor Name: Swanson & McNamara
Contract Link:
https://records.cityofberkeley.info/PublicAccess/api/Document/AU3fuyqXQXXZ%C3%81 TG8am4tuCPyplZzCFLJZsbxFqBxmJ3aQZTBcxS%C3%89E7ECp9r6A30gZuhAImseU FcNLLtKRrEId7g%3D/
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78 Appendix 2. Text Messages Sent by the Downtown Task Force and Bike Unit Members
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95 Appendix 3. Sample Quota Ban Policy
STOP, ARREST, AND TICKET QUOTAS PROHIBITION
XXX.1 PURPOSE AND SCOPE
The Berkeley Police Department (BPD) is committed to fostering fair and equitable law enforcement practices that prioritize public safety and community well-being. The purpose of this policy is to explicitly prohibit the imposition of stop, ticket, and arrest quotas in any law enforcement activities conducted by the Berkeley Police Department. This goes beyond the parameters defined in the California Vehicle Code § 41603.
Stop, ticket and arrest quotas, whether formal or informal, establish numerical targets for officers, compelling them to issue citations or make arrests based on predetermined numbers rather than legitimate law enforcement ne eds. This policy aims to uphold the values of fairness, impartiality, and community -focused policing, ensuring that enforcement actions are driven by genuine circumstances and the safety needs of our community.
This policy reflects the Berkeley Police Dep artment's unwavering dedication to maintaining high standards of ethical conduct and professionalism while serving and safeguarding the interests of the Berkeley community.
XXX.2 POLICY
This policy unequivocally prohibits the use of quotas (whether informal or formal) to require or encourage officers to meet predetermined numerical targets for stops, tickets, or arrests.
The Berkeley Police Department is committed to promoting public trust, transparency, and accountability in all law enforcement endeavors. This policy serves as a cornerstone in guiding our officers to conduct themselves with integrity, professionalism, and a commitment to community service, devoid of the imposition of arbitrary enforcement quotas that could compromise these principles.
96 Officers are encouraged to prioritize public safety and law enforcement compliance based on objective circumstances and genuine enforcement necessities, fostering a culture of equitable and community-oriented policing.
XXX.3 DEFINITION
The following words and terms shall have these assigned meanings throughout the Policy Manual, unless it is apparent from the content that they have a different meaning:
STOP, ARREST AND TICKET QUOTAS PROHIBITION
Arrest quota means any policy, practice, or directive that explicitly requires or pressures a peace officer or parking enforcement employee to make a certain number of arrests.
Ticket quota means any policy, practice, or directive that explicitly requires or pressures a peace officer or parking enforcement empl oyee to issue a certain number of citations or tickets.
Informal quota means any policy, practice, or directive that implicitly requires or pressures a peace officer or parking enforcement employee to make a certain number of arrests or issue a certain nu mber of citations. This includes, but is not limited to, the following:
(a) Talking about specific stop, arrest, or citation targets in a way that suggests they are important.
(b) Linking performance evaluations or promotions to arrest or citation numbers. (c) Providing incentives such as barbecue (BBQ), pizza, gift cards, car wash coupons, and trophies to officers who meet quotas.
(d) Offering overtime.
(e) Establishing adverse employment actions such as denial of days off, transfers, undesirable assignments, and termination.
(f) Creating a competitive environment where officers are encouraged to make more arrests or issue more citations than their colleagues.
(g) Making jokes or innuendos that incentivize achieving a specific number of stops, arrests, or tickets.
Prepared by:
Olivia Wilson
Companion Report to
Berkeley Police Department Texting Allegations:
An Independent Investigation by the Police Accountability Board SUBMITTED TO CITY CLERK ON: AUGUST 29th, 2024
MAYOR
Jesse Arreguín
CITY COUNCIL
Rashi Kesarwani, District 1
Terry Taplin, District 2
Ben Bartlett, District 3
Igor Tregub, District 4
Sophie Hahn, District 5
Susan Wengraf, District 6
Cecilia Lunaparra, District 7
Mark Humbert, District 8
City Manager Berkeley Police Department
LaTanya Bellow, Interim City Manager Jennifer Louis, Chief of Police
POLICE ACCOUNTABILITY BOARD (PAB) MEMBERS
John “Chip” Moore, Chair
Leah Wilson, Vice-Chair
Brent Blackaby
Kitty Calavita
Joshua Cayetano
Juliet Leftwich
Alexander Mozes
David Williams
OFFICE OF THE DIRECTOR OF POLICE ACCOUNTABILITY (ODPA) STAFF Hansel Alejandro Aguilar, Director of Police Accountability Jose De Jesus Murillo, Policy Analyst
Jayson Wechter, Investigator
Keegan Horton, Investigator
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Table of Contents
PREFACE ........................................................................................................................................................ 2 ACKNOWLEDGEMENTS ................................................................................................................................. 2 EXECUTIVE SUMMARY .................................................................................................................................. 2 Introduction .................................................................................................................................................. 5 Recommendations for Council ...................................................................................................................... 6 Call on the State Legislature to Amend Government Code section 12519 .......................................... 6 Procure the services of a vendor that can conduct real-time audits and analysis of BWC footage. .... 7 Establish a protocol, subject to Council approval, with clear guidelines for how the City Manager should handle complaints against the Chief of Police .......................................................................... 7 Establish a communications policy, corresponding training, and compliance mechanisms to ensure impartiality and neutrality during the pendency of an active personnel investigation ....................... 9 Research the viability and fitness for law enforcement accreditation for BPD and the viability of utilizing a law enforcement agency assessment tool like NYU’s Policing Project SAJE tool ............... 13 Utilize the guidelines in the DOJ report " Considerations for Specialized Units: A Guide for State and Local Law Enforcement Agencies to Ensure Appropriateness, Effectiveness, and Accountability" to critically examine the necessity, effectiveness, and oversight of specialized units within the BPD .. 14 Adopt a resolution issuing a formal apology to the City of Berkeley community for the improper messaging displayed by this incident and reaffirm a commitment to support the work of the Fair and Impartial Policing Committee ...................................................................................................... 14 Recommendations for the City Manager .................................................................................................... 15 Work with the City Auditor and IT to modify existing policies regarding city-issued devices and ensure compliance through randomized audits ................................................................................. 15 Work with the BPD to draft and adopt an Alcohol Rehabilitation Leave Procedure similar to DPD GO 446.00 ................................................................................................................................................. 16 Recommendations for the Community ...................................................................................................... 17 Seek Charter amendment to Section (15) Legal Counsel: To provide independent counsel to the ODPA/PAB for all legal advice ............................................................................................................. 17 Seek Charter amendment to allow ODPA/PAB to conduct personnel misconduct investigations sua sponte (of one's own accord) ............................................................................................................. 17 Conclusion ................................................................................................................................................... 18
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PREFACE
On November 10, 2022 former Berkeley Police Department (BPD) Officer Corey Shedoudy brought allegations forward regarding improper conducted committed by BPD ’s Downtown Task Force and Bike Unit (DTF). The explicit nature of the texts and the gravity of the accusations of arrest quotas and questionable legal tactics jolted the Berkeley community and its political leaders. In response to these serious allegations, the City , through direction of the city manager, hired an external law firm to investigate the authenticity and implications of these texts, which were ultimately confirmed as genuine. The Police Accountability Board (PAB) conducted an independent investigation of the policies and practices related to the allegations. The report was approved for submission to the Council on July 10th, 2024.
According to the City of Berkeley Commissioners' Manual1, a companion report from the City Manager is required when the City Manager differs with the recommendations of a commission or wishes to include additional or different information. While the Commissioners' Manual does not specifically reference a companion report from the Director of Police Accountability (DPA), the DPA, as a Charter officer and secretary to the Police Accountability Board (PAB), when supporting the PAB, has in effect the same authority as it relates to the City Manager's relationship with other Boards and Commissions. Therefore, this companion report aims to augment the recommendations by providing additional objective analysis. This companion report is intended to complement the PAB report, ensuring the City Council fully understands the issue and the necessary actions.
ACKNOWLEDGEMENTS
• Former Board Members who served during the revelation of these allegations: Nathan Mizell, Ismael Ramsey, Dobbie Levine, and Cheryl Owens
• Berkeley Copwatch for sharing the analysis of their independent investigation • Community member Mr. Charles Clarke for his independent analysis • Late Assemblyman John Miller for his contributions to reducing unjust practices in policing.
• People of Berkeley
EXECUTIVE SUMMARY
The objective of this companion report is to propose additional necessary reforms to prevent future occurrences and institutional missteps that may still occur without firm city council, city manager and or community guidance. The report emphasizes the importance of transparency, accountability, and community trust in policing practices.
To that end the ODPA recommends the following actions for COUNCIL:
1 CITY OF BERKELEY COMMISSIONERS' MANUAL 2019 EDITION: BACKGROUND INFORMATION RULES AND
PROCEDURES
https://berkeleyca.gov/sites/default/files/2022-03/Commissioners-Manual.pdf
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1. Call on the California Legislature to ame nd Government Code section 12519 2 to include heads of civilian oversight agencies as one of the enumerated requestors.
2. Direct the City Manager and Chief of Police, with input from the newly formed Office of Strategic Planning and Accountability (OSPA), to procure the services of a vendor that can conduct real-time audits and analysis of BWC footage.
3. Direct the City Manager to work with the City Attorney’s Office to establish a protocol, subject to Council approval, with clear guidelines for how the City Man ager should handle complaints against the Chief of Police including designating the PAB/ODPA as an investigative body. (consider PRC Ordinance: “that all such complaints filed with other offices, boards, bureaus, and departments of the City, including the Police Department, shall be referred to the Commission for investigation”).
4. Direct the City Manager to work with the City Attorney ’s Office to establish a communications policy, corresponding training, and compliance mechanisms to ensure impartiality and neutrality during the pendency of an active personnel investigation
5. Direct the City Manager and Chief of Police, with input from the OSPA, to expand the Berkeley Police Transparency Hub by including data on the prosecutorial outcomes of each arrest made by the BPD.
6. Direct the City Manager and Chief of Police, with input from the OSPA, to work with the PAB/ODPA to research the:
o Viability and the fitness for law enforcement accreditation for BPD. o Viability and the fitness for utilizing a law enforcement agency assessment tool like NYU’s Policing Project SAJE tool3
7. Direct the City Manager and Chief of Police, with input from the OSPA , to utilize the guidelines in the DOJ report " Considerations for Specialized Units A Guide for State and Local Law Enforcement Agencies to Ensure Appropriateness, Effectiveness, and Accountability Specialized Units A Guide for State and Local Law Enforcement Agencies to Ensure Appropriateness, Effectiveness, and Accountability " to critically
2 Government Code section 12519 states:
“The Attorney General shall give the Attorney General ’s opinion in writing to any Member of the Legislature, the Governor, Lieutenant Governor, Secretary of State, Controller, Treasurer, State Lands Commission, Superintendent of Public Instruction, Insurance Commissioner, any state agency, and any county counsel, district attorney, or sheriff when requested, upon any question of law relating to their respective offices.
“The Attorney General shall give the Attorney General ’s opinion in writing to a city prosecuting attorney when requested, upon any question of law relating to criminal matters.”
Under this statute, the Attorney General may give opinions only to these specified public officials, and not to private individuals or to public officials who are not listed in the statute.
Source:https://oag.ca.gov/opinions/faqs#:~:text=Government%20Code%20section%2012519%20states%20that%20 opinions%20shall%20be%20provided,cases%20arising%20in%20the%20city. 3 The SAJE Policing Assessment is a tool designed to define and measure the characteristics of a sound, accountable, just, and effective policing agency. This much-needed resource helps police leaders and agencies, municipal leaders, and the communities they serve understand agency performance across 100 critical metrics.
Source: https://www.policingproject.org/saje-policing-assessment
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examine the necessity, effectiveness, and oversight of specialized units within the Berkeley Police Department (BPD)
8. Adopt a resolution issuing a formal apology to the City of Berkeley community for the improper messaging displayed by this incident and reaffirm a commitment to support the work of the Fair and Impartial Committee, the PAB, the ODPA, the Peace and Justice Commission and other City Departments, community stake holders working towards a more equitable and just City of Berkeley.
The ODPA additionally recommends that the CITY MANAGER:
1. Work with the City Auditor and IT to modify existing polic ies regarding city -issued devices and ensure compliance through randomized audits.
2. Work with the BPD to draft and adopt an Alcohol Rehabilitation Leave Procedure similar to Dallas Police Department General Order 446.004 Lastly, the ODPA calls on the COMMUNITY to consider the following:
1. Seek Charter amendment to Section (15) Le gal Counsel 5: To provide independent counsel to the ODPA/PAB for all legal advice. Independent Counsel may be a staff employed by the ODPA or on retainer.
2. Seek Charter amendment to allow ODPA/PAB to conduct personnel misconduct investigations sua sponte (of one's own accord).
In instances where public trust has been impacted in such a manner, it is not only important to look at ways in which systems can be improved but also to be intentional about ways to heal the community and improve relationships down the line. This requires ongoing dialogue, community engagement, and concrete actions to rebuild trust and demonstrate a genuine commitment to change.
In closing, this report seeks to fulfill our commitment to the Berkeley community by providing a thorough examination of the incident and offering actionable recommendations. The goal is to foster a law enforcement environment that upholds the highest standards of integrity and
4 446.01 Purpose
“The purpose of the Alcohol Reh abilitation Leave Procedure is to provide employees of the police department with support and assistance in securing confidential care to help them overcome the detrimental use of alcohol before their career and personal lives are irreparably damaged. A co ncerning number of alcohol -related arrests and incidents involving members of the department have occurred and continue to occur. Employee safety and well -being is paramount for the Dallas Police Department. As a proactive measure, this procedure is being implemented immediately to support department employees. Our success as a Department is dependent on a physically and mentally healthy workforce who care for themselves just as much as the community they serve.” Source: https://dallaspolice.net/resources/Shared%20Documents/General-Orders.pdf
5 Berkeley Charter Section 125(15)(a):
The Board and the Director of Police Accountability shall use the services of the City At torney’s Office for legal advice.
Source: https://berkeley.municipal.codes/Charter/125(15)(a)
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accountability, thereby restoring public trust and aligning policing practices with the values of the Berkeley community.
Introduction
The ODPA presents this companion report subsequent to an exhaustive review conducted by the Subcommittee on Policy and Practices concerning the Downtown Task Force and Bike Unit Allegations of the PAB which was then formally discussed and approved by the full Board. Central to the concerns under scrutiny is the grave allegation of police quotas attributed to the Downtown Task Force, a matter that resonates deeply with both historical precedent and contemporary societal discourse.
The allegation of police quotas strikes at the core of the delicate balance between law enforcement's role in ensuring public safety and the imperative to safeguard individual rights and dignity. This issue's legisla tive history, though often obscured and scattered across many states, finds its origins rooted in Berkeley —a city renowned for its progressive and forward -thinking stance in shaping societal norms and legal frameworks (see Ossei-Owusu, 2021).
Remarkable le gislative activity emerged in the 1970s, with Black Democratic Assemblyman John Miller at the helm, introducing California's bill in 1975. Miller, often described as a "progressive independent in local politics," demonstrated a keen political acumen, underpinning his support for quota bans with inclusive rhetoric (Id.). His district, which encompassed the diverse cities of Oakland and Berkeley, provided a unique perspective, one that resonated with concerns for both police officers and the general public.
Miller's stance articulated the inherent injustice in quotas, deeming them "unfair, undemocratic, and unjust." (see Ossei -Owusu, 2021 citing Measure to Outlaw CHP ’s Ticket Quotas6, supra note 69, at 1.) He was troubled by the notion that an officer's failure to meet quotas could lead to demotion, while simultaneously expressing concerns for "the average California driver," who might find themselves disbelieved by a "rubber stamp traffic court system." (Id.) California's statute, birthed from a convergence of multi -constituent concerns, remains relevant today, specifically in the City of Berkeley. It serves as a historical testament to the enduring pursuit of justice and fair play, core tenets that guide our efforts in maintaining police accountability, fostering public trust, and safeguarding the principles of democracy within the City of Berkeley.
This report endeavors to shed light on the contemporary implications of the allegations surrounding police quotas, while acknowledging their historical resonance within our community's consciousness. Through our investigation s, we aim to contribute to the ongoing dialogue surrounding public safety, police conditions, and the eradication of police corruption, underscoring our commitment to a just and equitable Berkeley.
6 Ossei-Owusu, S. (2021). Police quotas. NYUL Rev., 96, 529.
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Additionally, this report investigates the alarming findings related to the DTF, particularly the use of arrest quotas, inappropriate behavior among officers, and the troubling internal culture that has surfaced through the examination of text messages exchanged within the unit. These findings underscore the need for immediate and decisive action to address the systemic issues within the BPD, particularly those related to the DTF’s operations. This report presents a series of recommendations aim ed at reforming the BPD to ensure transparency, accountability, and a renewed commitment to fair and just policing. These recommendations include proposed amendments to local legislation, the adoption of new internal policies, and the implementation of rigorous oversight mechanisms. By confronting these issues head -on and implementing the suggested reforms, Berkeley can restore public trust in its police department and reaffirm its dedication to upholding the highest standards of law enforcement.
Recommendations for Council
Call on the State Legislature to Amend Government Code section 12519
Civilian oversight agencies play a crucial role in maintaining transparency and accountability within law enforcement. However, their effectiveness is often limited by the scope of their authority and access to necessary resources. The current Government Code section 12519 restricts the ability to request investigative assistance from the Attorney General ’s office to a limited group of officials, thereby excluding civili an oversight leaders who are often at the forefront of addressing public concerns regarding police misconduct. Amending this section to include heads of civilian oversight agencies as authorized requestors would not only empower these agencies but also ensure that they can perform their duties without unnecessary hindrances, especially in cases where their investigations encounter substantial resistance or require specialized expertise.
The recent findings in the PAB report highlight the numerous obstacles civilian oversight bodies face when attempting to access critical information, such as the Swanson report and other internal records. These challenges underscore the need for civilian oversight agencies to have the legal backing necessary to overcome such barriers, particularly when investigating serious allegations of misconduct. By allowing civilian oversight leaders to request assistance from the Attorney General’s office, the Legislature would be affirming the importance of transparency and accountability in law enforcement, while also providing these agencies with the tools needed to conduct thorough and effective investigations.
Moreover, this amendment would signal the Legislature ’s commitment to strengthening civilian oversight in California, a state that has been at the forefront of progressive policing reforms. By expanding the scope of section 12519, the Legislature would not only bolster the independence of civilian oversight agencies but also promote a more robust system of checks and balances within law enforcement. This change would be a significant step towards ensuring that all investigations into police misconduct, particularly those involving complex or sensitive issues, are conducted with the highest standards of integrity and thoroughness.
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Procure the services of a vendor that can conduct real-time audits and analysis of BWC footage.
The integration of body-worn cameras (BWC) into police operations was initially heralded as a key tool for enhancing transparency and accountability. However , the effectiveness of BWC footage in holding officers accountable depends heavily on the ability to analyze and audit this data in a timely and systematic manner. As highlighted in the PAB report, the current oversight mechanisms are insufficient, often l eaving critical data unanalyzed due to limited resources and access issues. By procuring the services of a vendor that specializes in real-time audits and analysis of BWC footage, the City can ensure that this valuable resource is fully utilized to monitor police conduct, identify potential issues early, and provide an objective record of interactions between officers and the public.
Real-time analysis of BWC footage would also serve as a proactive measure to deter misconduct and reinforce a culture of acco untability within the Berkeley Police Department. By enabling continuous monitoring, the City can swiftly address any deviations from policy, reducing the likelihood of incidents escalating into more severe issues. This approach aligns with the PAB’s recommendations for more robust oversight and reflects the City ’s commitment to upholding the highest standards of policing. Moreover, the use of advanced technology to audit BWC footage can provide comprehensive insights into patterns of behavior, helping to i nform future policy decisions and training programs.
Furthermore, the involvement of the Office of Strategic Planning and Accountability (OSPA) in this process ensures that the procurement of these services aligns with the broader strategic goals of the City and the Police Department. The OSPA can provide valuable input on the selection of the vendor, ensuring that the chosen solution is tailored to the specific needs of Berkeley’s oversight framework. By integrating real -time BWC footage analysis into the City’s accountability systems, Berkeley can set a new standard for transparency and public trust, demonstrating a commitment to continuous improvement in police oversight.
Establish a protocol, subject to Council approval, with clear guidelines for how the City Manager should handle complaints against the Chief of Police
The authority and responsibility of the Chief of Police place them at the center of law enforcement operations, making it essential that any complaints against them are handled with the utmost transparency and impartiality. The recent PAB report revealed significant challenges in accessing information necessary for oversight, particularly in cases involving high -ranking officials. To address these concerns, it is recommended that the City Manager, in collaboration with the City Attorney ’s Office, develop a clear and robust protocol for handling complaints
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against the Chief of Police. This protocol should be subject to Council approval to ensure it reflects the community’s expectations for transparency and accountability.
Central to this protocol should be the designation of the PAB and the ODPA as the primary investigative bodies for such complaints. This approach is consistent with the precedent established by the PRC Ordinance, which mandates that complaints filed with other city offices, boards, or departments be referred to the appropriate oversight commission for investigation. By formalizing this process, the City can ensure that complaints against the Chief of Police are not only investigated thoroughly but also in a manner that is independent of the Police Department ’s internal mechanisms, thereby avoiding any potential conflicts of interest.
Additionally, the establishment of clear guidelines for handling these complaints would provide all stakeholders, including the public, with confidence in the process. It would outline the specific steps to be taken from the receipt of a complaint through to its resolution, including timelines, investigative procedures, and reporting requireme nts. This transparency is crucial for maintaining public trust, particularly in situations where the actions of the Chief of Police are called into question. By implementing a well -defined protocol, the City of Berkeley can demonstrate its commitment to holding all members of its law enforcement agencies accountable, regardless of rank, and ensure that the principles of justice and fairness are upheld in all circumstances.
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Establish a communications policy, corresponding training, and compliance mechanisms to ensure impartiality and neutrality during the pendency of an active personnel investigation
On November 10, 2022 City Manager Williams-
Ridley, by way of email, acknowledged to the
Mayor and Council the allegations as brought
forth by former BPD Officer Shedoudy (see
Figure 1). In the email, the City Manager
classified the email from the former officer as
“disturbing”. Furthermore, she assured the
Mayor and Council that the “allegations will be
investigated fully and any additional
investigative oversight needed will be sought.”
This initial paragraph is without concern to the
Board, but the subsequent paragraph reveals
practices and policies (or lack thereof) regarding
the operation of the Berkeley Police
Department- as they relate to investigations of
higher-ranking law enforcement officials- that
are ripe for yielding prejudiced or biased
conclusions.
Specifically, in the follow up paragraph, the City
Manager states that she does “not see any reason
to pause the upcoming item requesting the
appointment of Jen Louis to Chief of Police .”
This statement is extremely concerning in the
context of serious allegations that needed to be
“fully investigated” and where the item dealt
with the potential subject of an investigation to
be undertaken. Additionally, the City Manager
adds that her “initial inquiry affirms that she
[Chief Louis] had no knowledge of the
allegations or text messages provided by
Former Officer Shedoudy .” It is unclear to the
Board what the depth and scope of the “initial
inquiry” was, but if at that time the City
Manager had not independently corroborated
the lack of knowledge of the allegations by
Chief Louis through independent witnesses that
may had knowledge about this, through an
administrative review of emails and text
Figure 1 City Manager Email to City Council acknowledging allegaƟons
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messages of the Chief, it is difficult to understand how an “initial inquiry” could have affirmed that information. If at that time, the “initial inquiry” merely included a discussion with Chief Louis about the matter, that information, in and of itself, would have been insufficient by a preponderance of the evidence to “affirm” that the Chief had no knowledge about these allegations. At most, the Chief’s denial about having knowledge could have “suggested” that the allegations lacked or possessed questionable merit.
Notwithstanding, considering that at this juncture of the events, the City Manager had not formally recused herself from investigating this matter 7 and the other Departments/units within the City with authority to investigate the matter sua sponte8 were the BPD and IAB respectively, statements made by her (or her office) could had the effect of prejudi cing the investigation. From an investigative and adjudicatory perspective, this presents various obvious problems that must be addressed through the enactment of policies or the guidance of practices.
There are many sources for policy and or practice gui dance on navigating the delicate nature of investigations, but two important ones that can guide our City are:
• State Bar of California- RULES OF PROFESSIONAL CONDUCT9 ; and • U.S Department of Justice, Office of Community Oriented Policing Services (COPS) - STANDARDS AND GUIDELINES FOR INTERNAL AFFAIRS: Recommendations from a Community of Practice10
In Rule 3.6 Trial Publicity, the State Bar of California prohibits lawyers who are participating or have participated in the investigation or litigation of a matt er from making, “extrajudicial statement that the lawyer knows* or reasonably should know* will (i) be disseminated by means
7 Section 28(f) of the City Charter indicates that one of the powers and duties of City Manager is: “To make investigations into the affairs of the City, or any department or division thereof, or any contract, or the proper performance of any obligation running to the City.“
In practice, the City Manager does not personally investigate affairs of the City, but rather delegates them to the appropriate personnel. In this instance, a matter concerning the Berkeley Police Department (in accordance with the BMC 2.64.030) would also be under the control and supervisory authority of the Chief of Police: “The Chief of Police shall be responsible for the supervision and control of all divisions of the department and for the performance of the functions herein assigned to the department.”
8 Section 125(3)(a)(3) of the City Charter specifies that the Board has authority to receive and consider findings of the Director of Police Accountability, where a complaint is filed by members of the public: “To receive and consider the findings and recommendations of the Director of Police Accountability regarding complaints filed by members of the public against sworn employees of the Police Department and to recommend if discipline is warranted when misconduct is found and, pursuant to Section 18, the level of discipline for sustained findings of misconduct”;
9 State Bar of California- RULES OF PROFESSIONAL CONDUCT https://www.calbar.ca.gov/Portals/0/documents/rules/Rule_3.6-Exec_Summary-Redline.pdf
10 U.S Department of Justice, Office of Community Oriented Policing Services (COPS)- STANDARDS AND GUIDELINES FOR INTERNAL AFFAIRS: Recommendations from a Community of Practice https://portal.cops.usdoj.gov/resourcecenter/ric/Publications/cops-p164-pub.pdf
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of public communication and (ii) have a substantial* likelihood of materially prejudicing an adjudicative proceeding in the matter .” Serving in her capacity as the City Manager, it can be reasonably concluded that the City Manager knew or reasonably should have known (i.e. Brown Act) that her extrajudicial statements could be 1) disseminated by means of public communication and 2) have a substantial likelihood of materially prejudicing an adjudicative proceeding 11 in the matter.
Furthermore, the Rule provides guidance on what statements can be made depending on whether they focus on non-criminal or criminal cases. Specifically, in cases that are non-criminal in nature, according to Rule 3.6 (b), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons* involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person* involved, when there is reason to believe* that there exists the likelihood of substantial* harm to an individual or to the public but only to the extent that dissemination by public communication is reasonably* necessary to protect the individual or the public; Given the guidance provided by the State Bar of California's Rules of Professional Conduct, it is evident that the City Manager ’s public statements regarding the allegations against the Berkeley Police Department's leadership, and specifically Chief Louis, should have been more cautiously framed to avoid any potential for prejudicing ongoing investigations. The premature affirmation of the Chief’s lack of knowledge, without a thorough and independent inquiry, not only risks undermining the in tegrity of the investigation but also erodes public trust in the fairness of the process. It is crucial for city officials, particularly those in positions of authority, to refrain from making statements that could be perceived as influencing or pre-judging the outcome of such investigations.
To address the concerns raised by this incident, it is recommended that Berkeley adopt clear policies and procedures that align with the best practices outlined in the DOJ ’s "Standards and Guidelines for Internal Affai rs" and the State Bar's Rules of Professional Conduct. These policies should emphasize the importance of impartiality and caution in public communications,
11 Currently, the BPD’s adjudicative proceeding consists of a hearing process whic h includes members of the City Manager’s Office.
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particularly when an investigation is ongoing. Moreover, the City should consider implementing training for city officials on these standards to ensure that future communications do not inadvertently compromise the integrity of investigations. By doing so, Berkeley can strengthen its commitment to transparency, accountability, and the rule of law, ensuri ng that all investigations are conducted with the highest standards of fairness and integrity.
Expand the Berkeley Police Transparency Hub by including data on the prosecutorial outcomes of each arrest made by the BPD
Expanding the Berkeley Police Transpar ency Hub 12 to include data on the prosecutorial outcomes of each arrest made by the BPD represents a significant step toward enhancing transparency and accountability within the city's law enforcement operations. The report titled " Purging the Poor: Arrest Quotas, Racist Texts and the Role of City Leadership in the "Textgate" Scandal" by Berkeley Copwatch 13 underscores the importance of examining the entire spectrum of police interactions, from initial stops to final prosecutorial outcomes. Subsequently, Mr. Charles Clarke submitted his independent analysis on the prosecutorial outcomes related to this unit for the PAB’s and ODPA’s consideration (see attachments 1 and 2). Currently, the Transparency Hub provides valuable data on police stops, arrests, and other metrics, but it lacks critical information on how these arrests are processed and adjudicated within the criminal justice system. By including prosecutorial outcomes—such as charges filed, cases dismissed, plea bargains, and trial results— the City can offer a more complete picture of the effectiveness and fairness of BPD practices, allowing the community and oversight bodies to better understand the full impact of police actions, as well as any potential disparities in how justice is administered.
This expanded dataset would also provide crucial insights into potential disparities in the criminal justice process. For instance, if data reveals that certain demographic groups are disproportionately facing harsher prosecutorial outcomes, it could sign al the need for further investigation and reforms within both the police department and the prosecutorial system.
Moreover, such transparency would enable the PAB and other oversight entities to identify patterns of concern, such as frequent dismissals of cases due to insufficient evidence, which might indicate systemic issues in how arrests are conducted or how evidence is gathered. Ultimately, this initiative would empower the City of Berkeley to address these issues proactively, fostering greater trust between the police department and the community it serves.
Furthermore, the inclusion of prosecutorial outcomes in the Transparency Hub would reinforce Berkeley’s commitment to data-driven decision-making and continuous improvement in public safety practice s. By making this information publicly available, the City would not only increase accountability but also encourage a broader dialogue among stakeholders—including law enforcement, community leaders, and policymakers—about the intersections between policing and the judicial system. This holistic approach to transparency would set a precedent for other
12 https://bpd-transparency-initiative-berkeleypd.hub.arcgis.com/ 13 https://www.berkeleycopwatch.org/_files/ugd/9faa72_175f75bda71646b983857d0a0e352434.pdf?index=true
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jurisdictions, demonstrating Berkeley's leadership in advancing equitable and just law enforcement practices.
Research the viability and fitness for law enforcement accreditation for BPD and the viability of utilizing a law enforcement agency assessment tool like NYU’s Policing Project SAJE tool14
The pursuit of law enforcement accreditation and the adoption of advanced assessment tools are crucial strategies for ensuring that the BPD meets the highest standards of professional conduct and operational effectiveness. By directing the City Manager and Chief of Police, in consultation with the OSPA, to explore the viability and fitness of these initiatives, Berkel ey can systematically evaluate its policing practices against national and international benchmarks.
Accreditation from recognized bodies like CALEA (Commission on Accreditation for Law Enforcement Agencies) would not only affirm the BPD ’s commitment to ex cellence but also provide a structured framework for continuous improvement, covering critical areas such as policy development, training, and accountability mechanisms.
In addition to exploring accreditation, researching the potential adoption of a law enforcement assessment tool like NYU ’s Policing Project SAJE ( Sound, Accountable Just, and Effective) would allow Berkeley to engage in a more nuanced evaluation of its policing practices.
The SAJE tool is specifically designed to assess law enforcement agencies on key metrics related to justice, equity, and public safety outcomes. By implementing such an assessment, the BPD can gain deeper insights into areas that require reform or enhancement, particularly in the context of community trust and fairness in p olicing. This would also enable the PAB and ODPA to play a more informed role in oversight, ensuring that the department's practices align with the community’s expectations and the City’s commitment to equitable law enforcement.
These initiatives —pursuing accreditation and employing advanced assessment tools — would significantly strengthen Berkeley ’s oversight capabilities and enhance the BPD ’s transparency and accountability. By rigorously evaluating the department ’s operations through these lenses, Berkele y can identify best practices and areas for improvement, ensuring that its police force not only meets but exceeds the standards of modern, community -oriented policing.
This forward-looking approach would reinforce Berkeley ’s role as a leader in innovative police reform and set a high bar for law enforcement agencies nationwide.
14 For preliminary research on these tools consider ODPA’s memo presented to the PAB on March 13, 2024:
https://berkeleyca.gov/sites/default/files/legislative-body-meeting-attachments/2024-03- 13%20PAB%20Agenda%20Packet.pdf
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Utilize the guidelines in the DOJ report " Considerations for Specialized Units: A Guide for State and Local Law Enforcement Agencies to Ensure Appropriateness, Effectiveness, and Accountability" to critically examine the necessity, effectiveness, and oversight of specialized units within the BPD
The findings from the PAB report on the BPD Downtown Task Force and Bike Unit raise serious concerns about the operations and oversight of these specialized units, including potential misuse of power and negative community impact. To address these issues and ensure that specialized units within the BPD are functioning effectively and justly, it is recommended that the City Manager and Chief of Police, with input from the OSPA, adopt the guidelines provided in the DOJ’s "Considerations for Specialized Units: A Guide for State and Local Law Enforcement Agencies to Ensure Appropriateness, Effectiveness, and Accountability."15 This guide offers a comprehensive framework for law enforcement agencies to assess the appropriateness, effectiveness, and accountability of their specialized units. By applying these guidelines, the BPD can conduct a thorough evaluation of its specialized units to determin e whether they are necessary, whether their operations are aligned with the department ’s mission and values, and whether they have appropriate oversight mechanisms in place to prevent misconduct and ensure transparency.
The evaluation should include a revi ew of the units' goals, operational practices, and community impact, with a particular focus on identifying any areas where reforms may be needed to align with best practices for accountability and fairness. Implementing the recommendations from the DOJ guide will help ensure that all specialized units within the BPD operate in a manner that promotes public trust and community safety, reinforcing Berkeley’s commitment to equitable and just policing.
Adopt a resolution issuing a formal apology to the City of Berkeley community for the improper messaging displayed by this incident and reaffirm a commitment to support the work of the Fair and Impartial Policing Committee
The recent revelations of improper messaging within the Berkeley Police Department, as detailed in the PAB report, have understandably caused significant concern within the community, undermining trust in local law enforcement. To address this breach of pu blic confidence, it is essential that the City Council adopt a resolution issuing a formal apology to the City of Berkeley community. This apology should acknowledge the harm caused by the insensitive and inappropriate communications, recognizing their imp act on the community ’s perception of the
15 National Policing Institute. 2024. Considerations for Specialized Units: A Guide for State and Local Law Enforcement Agencies to Ensure Appropriateness, Effectiveness, and Accountability. Washington, DC: Office of Community Oriented Policing Services.
Source: https://portal.cops.usdoj.gov/resourcecenter/content.ashx/cops-r1140-pub.pdf
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police and reaffirming the City ’s commitment to maintaining the highest standards of professionalism and respect within its police force.
In addition to the apology, the resolution should also explicitly reaffirm the City’s ongoing commitment to supporting the work of key oversight and community -oriented bodies, including the Fair and Impartial Policing Committee, the PAB, the Office of the Director of Police ODPA, the Peace and Justice Commission, and other relevant City departments and stakeholders. These entities play a vital role in promoting equity, justice, and accountability in Berkeley, and their work is more important than ever in the wake of this incident. By publicly committing to support these bodies, the City Council can help ensure that they have the resources and authority needed to carry out their mandates effectively, fostering a culture of transparency and continuous improvement.
Moreover, this resolution would serve as a critical step in healing the relationship between the BPD and the community it serves. By taking responsibility for the actions of its police force and demonstrating a sincere commitment to addressing the underlying issues, the City of Berkeley can begin to rebuild trust and move forw ard with a renewed focus on equity and justice. This formal apology, coupled with a reaffirmed commitment to oversight and reform, would underscore the City’s dedication to creating a police department that truly reflects the values and expectations of its diverse and vibrant community.
Recommendations for the City Manager
Work with the City Auditor and IT to modify existing policies regarding city-issued devices and ensure compliance through randomized audits
The effective management and oversight of city-issued devices are critical to maintaining the integrity and security of Berkeley ’s operations. Current policies governing the use of these devices must be updated to reflect evolving technology, security risks, and the need for accountability in their us e. Collaborating with the City Auditor and IT department will allow Berkeley to establish more stringent guidelines for the use of city -issued devices, ensuring that they are utilized appropriately and securely for official purposes. By refining these poli cies, the City can mitigate risks associated with data breaches, unauthorized use, and potential misconduct related to the use of these devices.
To ensure compliance with the updated policies, the City should implement a system of randomized audits. These audits will serve as a critical oversight mechanism, verifying that city - issued devices are being used in accordance with the established guidelines. Randomized audits provide a deterrent effect, reducing the likelihood of misuse by ensuring that all city employees are aware that their device usage may be subject to review at any time. This proactive approach will help to identify any instances of non-compliance or security vulnerabilities early, allowing the City to address issues before they escalate.
Moreover, this initiative will enhance transparency and accountability across all departments, demonstrating Berkeley ’s commitment to responsible governance and the
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safeguarding of public resources. Regular audits and policy reviews will not only protect the City’s technological assets but also foster a culture of accountability and ethical conduct among employees. By prioritizing the proper management of city -issued devices, Berkeley can ensure that its operations remain secure, efficient, and aligned with best practices in public administration.
Work with the BPD to draft and adopt an Alcohol Rehabilitation Leave Procedure similar to DPD GO 446.00
Recognizing the importance of supporting the well-being and health of police officers, and in light of the troubling references to alcohol in the text messages exchanged among members of the Downtown Task Force, it is recommended that Berkeley work with the BPD to draft and adopt an Alcohol Rehabilitation Leave Procedure, modeled after DPD GO 446.0016. The text messages revealed that alcohol was frequently mentioned as a prize or reward for making arrests, raising serious concerns about the role of alcohol within the department's culture. This procedure would provide a structured and compassionate approach for offic ers who are struggling with alcohol dependency, offering them the opportunity to seek treatment without fear of stigma or career repercussions. By adopting such a policy, Berkeley would demonstrate its commitment to the holistic health of its law enforcement personnel, acknowledging that the mental and physical well- being of officers is integral to their ability to serve the community effectively.
The Alcohol Rehabilitation Leave Procedure would outline clear guidelines for officers to request leave for alc ohol rehabilitation, ensuring confidentiality and support throughout the process. This policy would include provisions for treatment programs, reintegration plans, and monitoring to ensure that officers receive the help they need while maintaining the integrity of the department’s operations. By providing a pathway to recovery, the City can help officers address substance use issues proactively, reducing the risk of related misconduct, such as the troubling behaviors highlighted in the PAB report, and enhancing overall department morale.
Furthermore, implementing this procedure would align Berkeley with best practices in law enforcement, emphasizing the importance of health and wellness initiatives within the police force.
By adopting a proactive stance on a lcohol rehabilitation, particularly in response to the issues revealed in the text messages, the City can foster a supportive environment where officers feel empowered to seek help when needed, ultimately leading to a more resilient and effective police department. This initiative would also reflect the City ’s broader commitment to public health, extending support to those who serve and protect the community while addressing the underlying cultural issues that may contribute to unhealthy behaviors within the force.
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Recommendations for the Community
Seek Charter amendment to Section (15) Legal Counsel: To provide independent counsel to the ODPA/PAB for all legal advice
To enhance the independence and effectiveness of the ODPA and the PAB, it is recommended that Berkeley seek a Charter amendment to Section 15, which governs Legal Counsel. This amendment would provide for the appointment of independent legal counsel dedicated solely to the ODPA and PAB, ensuring that all legal advice and representation is free from potential conflicts of interest. By establishing independent counsel, either as a staff position within the ODPA or through a retainer arrangement, the City can ensure that the ODPA and PAB receive unbiased, expert legal guidance tailored to their unique oversight functions.
Independent counsel would play a critical role in advising the ODPA and PAB on a wide range of legal issues, including investigations, policy reviews, and disciplinary recommendations.
This arrangement would allow the ODPA and PAB to operate with greater autonomy, as they would no longer need to rely on legal advice from the City Attorney ’s office, which also represents the police department and other city entities. Ensuring that the ODPA and PAB have their own legal counsel would reinforce their ability to carry out their mandates effectively, without concerns about divided loyalties or conflicts of interest that might arise when the same legal office advises both oversight bodies and the police department.
Moreover, this amendment would signal Berkeley ’s commitment to robust civilian oversight of law enforcement, providing the ODPA and PAB with the tools they need to perform their duties independently and effectively. By securing independent legal counsel, Berkeley would enhance the credibility and authority of its police oversight institutions, fostering greater public trust in the integrity of the oversight process. This move would align Berkeley with best practices in police accountability, ensuring that the ODPA and PAB are equipped to fulfill their critical role in promoting transparency, accountability, and justice within the Berkeley Police Department.
Seek Charter amendment to allow ODPA/PAB to conduct personnel misconduct investigations sua sponte (of one's own accord)
To f urther strengthen the oversight capabilities of the ODPA and the PAB, it is recommended that Berkeley seek a Charter amendment allowing these bodies to initiate personnel misconduct investigations sua sponte, or of their own accord. Currently, the ODPA and PAB are often limited to responding to complaints filed by members of the public, which can restrict their ability to address misconduct proactively. By granting the authority to initiate investigations independently, the ODPA and PAB would be better equipped to address potential issues of police misconduct that may not come to light through public complaints alone.
This amendment would empower the ODPA and PAB to act on credible information or patterns of behavior that suggest misconduct, even in the abse nce of a formal complaint. Such
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authority is crucial for addressing systemic issues within the police department that may otherwise go unchecked. By allowing these oversight bodies to investigate proactively, Berkeley can ensure that all instances of misco nduct are thoroughly examined and addressed, reinforcing the city ’s commitment to maintaining high standards of conduct within its police force.
Moreover, this change would align Berkeley with national effective practices in police oversight, where indepen dent civilian bodies are granted the authority to initiate investigations based on their observations or information received from other sources. By enabling the ODPA and PAB to conduct investigations sua sponte, Berkeley would enhance the effectiveness of its police oversight mechanisms, ensuring that the department remains accountable to the public it serves. This amendment would further solidify Berkeley ’s leadership in police reform and its commitment to transparency, accountability, and justice in law enforcement.
Conclusion
The investigation into the BPD’s Downtown Task Force and Bike Unit has revealed significant issues within the department, including the existence of arrest quotas, problematic messaging, and a culture that at times prioritizes perfo rmance metrics over ethical and just policing. The verified text messages that circulated among DTF members not only exhibited racial and socioeconomic biases but also suggested that alcohol was used as a reward for meeting arrest targets. These revelations underscore the urgent need for comprehensive reforms within the BPD to restore public trust and ensure that all policing practices align with the principles of fairness, equity, and transparency that Berkeley holds dear.
This companion report has provided a series of recommendations aimed at addressing the systemic issues uncovered during this investigation. These recommendations are designed to enhance the accountability of the BPD, strengthen oversight mechanisms, and support the well - being of officers to prevent future occurrences of misconduct. Key among these recommendations is the call for amendments to state legislation, the adoption of rigorous auditing and real -time monitoring of body -worn camera footage, and the establishment of clear protocols f or handling complaints against high-ranking officials within the department.
The City of Berkeley has a longstanding commitment to progressive policing and community-oriented public safety. To honor this commitment, it is essential that the City Council, City Manager, and all relevant stakeholders take decisive action in implementing the recommendations outlined in this report. By doing so, Berkeley can lead by example, demonstrating that accountability and integrity are non -negotiable values in law enforce ment.
Moving forward, continuous dialogue, community engagement, and transparent governance will be critical in healing the divisions caused by these recent events and in building a more just and equitable future for all residents of Berkeley.
ATTACHMENT 1.
Arrest Quotas Memorandum from Charles Clarke,
August 18, 2023 To the City of Berkeley Police
Accountability Board and Director of Police
Accountability
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1 Arrest Quotas
Memorandum from Charles Clarke, August 18, 2023
To the City of Berkeley Police Accountability Board
and Director of Police Accountability
On November 10, 2022, ex-Berkeley Police Department (BPD) Officer Corey Shedoudy e-mailed to the Berkeley City Council a collection of text messages that, among other things in Shedoudy’s words, “clearly outline a practice of illegal arrest quotas”.1 Arrest quotas have been prohibited by the California Vehicle Code since 1976:2
“No..local agency employing peace officers…may establish any policy requiring any peace officer…to meet an arrest quota.”
This memorandum addresses the arrest quota element of Shedoudy’s allegations.
The “Operation 100” Bike Unit Text Messages Suggest an Arrest Quota The Shedoudy text messages3 provided to the City Council have been (with one exception, not relevant here) authenticated by a vendor retained by the outside investigator Swanson & McNamara.4
On November 12, 2019, an unnamed officer (most likely then-Ofcr. Shedoudy) asked Ofcr. Greg Michalczyk about “Operation 100”.5
1 Police Accountability Board Special Meeting Agenda Packet, July 24, 2023, https://berkeleyca.gov/sites/default/files/legislative-body-meeting-attachments/2023-07- 24%20PAB%20Spe.Mtg_.Pkt_.pdf, “November 10, 2022, Email from Corey Shedoudy to the Mayor and Berkeley City Council,” p. 36
2 California Vehicle Code § 41602 Arrest Quotas,
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=17.&chapter=7.&lawCode=V EH, attached as Exhibit 1.
3 PAB Packet, supra n. 1, “Text Messages Attached to Shedoudy’s November 10, 2022 Email to the Mayor and City Council,” pp. 38 et seq.
4 PAB Packet, supra n. 1, “Summary of Investigation Process,” p. 25 5 PAB Packet, supra n. 1, p. 49
20 | Page
2 Later that day the meaning of “100” as a count of arrests was illustrated in an exchange between Ofcr. Michalczyk and Sergeant Darren Kacalek, the Bike Unit supervisor.6
The preceding month Sgt. Kacalek had suggested penalizing the officer with the fewest arrests to the drudgery of waxing (bikes, presumably).7
Also that same month Sgt. Kacalek had emphasized arrests to his unit (then known as the DTF, Downtown Task Force).8
(Overtime then as now had become a perennial challenge to the Berkeley Police Department,9 so relaxing that constraint in explicit exchange for arrests ran the implicit risk of establishing a quota.)
6 PAB Packet, supra n. 1, p. 43
7 PAB Packet, supra n. 1, p. 45
8 PAB Packet, supra n. 1, p. 48, apparent approximate date October 19, 2019 9 Berkeley City Auditor, Berkeley Police: Improvements Needed to Manage Overtime and Security Work for Outside Entities, March 3, 2022, https://berkeleyca.gov/sites/default/files/2022- 04/Berkeley%20Police%20-
%20Improvements%20Needed%20to%20Manage%20Overtime%20and%20Security%20Work%20for%20 Outside%20Entities.pdf
21 | Page
3 However, beleaguered local businesses might not connect arrest counts to their own sense of security – an issue raised by an unnamed officer (likely ex-Ofcr.
Shedoudy) in an undated message.10
Sgt. Kacalek responded that “numbers are a way of quantifying it…a notification to problematic people that we are out and about.”11
From this evidence I conclude that the Bike Unit, in the person of its supervisor Sgt. Kacalek, paid attention to the count of arrests made in late 2019. At least with Ofcr.
Michalczyk there was an explicit numerical target. Whether this attention constituted a quota – for Ofcr. Michalczyk or the entire Bike Unit – with the attendant suggestion that at least some arrests were made unlawfully, is suggested but not proven by the sample of text messages so far produced. A deeper look is needed.
10 PAB Packet, supra n. 1, p. 40
11 PAB Packet, supra n. 1, p. 41
22 | Page
4 The Downtown Task Force/Bike Unit Has Met A City Policing Priority Swanson & McNamara identif ied the Downtown Task Force’s start date as October 22, 2019.12 However, as early as 2018 BPD had “[s]taffed overtime patrols in the downtown,”13 partially in response to a campaign position from Councilmember Kate Harrison reflecting concerns of her Downtown constituents: 14 “More community policing – with foot and bicycle police – would improve community relations, particularly in the Downtown. Officers would get to know the merchants, residents and high school students and diffuse [sic] situations.”
BPD would count among its 2019 strategies and accomplishments:15 “Downtown Task Force…Began Bike Patrol training and equipment acquisition.” This priority was reflected in the FY 2020/2021 biennial budget adopted in mid-2019:16 “The Bike Patrol will provide proactive patrols in the downtown and south campus, and support problem-solving efforts associated with those areas.” The onset of the COVID-19 pandemic in March 2020 led to increased concern about safety in Downtown and south of campus. In the words of three members of the City Council in June 2020:
17 “During this COVID-19 emergency, City staff have received numerous complaints from local businesses regarding problematic and violent behavior, including assault of employees and property damage. As a result of increased criminal activity, the Berkeley Police Department have deployed overtime shifts in Telegraph and the Downtown to increase police patrols to respond more quickly to calls for service and to increase police presence to deter crime. While
12 “Summary of Investigation Process,” supra n. 4
13 Berkeley Police Department, 2018 Annual Crime Report, March 19, 2019, p. 3, https://records.cityofberkeley.info/PublicAccess/api/Document/Ae3FvWxdiUDVkDsWDvyxHMc492 HuYFW0lJpÉpp601ZyyWihrOgcndqMWadQzZ9QpPkazKJgV5uZUIWmgvutEEac%3D/ 14 Kate Harrison, Berkeley Progressive Alliance Candidate Questionnaire, p. 3, https://www.berkeleytenants.org/wp-content/uploads/2017/01/Questionnaire.-Harrison.pdf 15 Berkeley Police Department, 2019 Crime Report and Five Year Use of Force Report, October 13, 2020, p. 3,4, https://records.cityofberkeley.info/PublicAccess/api/Document/AfPSh1Yn6aÁYFbhJYqtRQgUtÉmAT 74LfpBLjvP9AwFsflVemWdd89cg9B4lFNHSMaxk8ÁpAlICAr2wmQEKnnbbQ%3D/ 16 City Manager, FY 2020 & FY 2021 Biennial Budget Adoption, June 25, 2019, p. 295 of 570, https://records.cityofberkeley.info/PublicAccess/api/Document/AcuCVnDbGawvbuIJ5bA6dÁkBWuD hZpxNnJyKMWTP7MeÉgslmZNIPG3s0vBJM4McaNB8jGcD2WeKCmVPNhEOAjU0%3D/ 17 Mayor Arreguín, Councilmembers Harrison and Robinson, Establishing a COVID-19 Business Damage Mitigation Fund, June 2, 2020, p. 1,
https://records.cityofberkeley.info/PublicAccess/api/Document/Aa4fp020coTCJkfwrmÉ7ffbVgxl0b0Q MhpQ7jxf9dboKOZUwMkWucvfvNNoVODsyCv1JG6i1chEaCdjZu48evu4%3D/ 23 | Page
5 the deployment of the Downtown Task Force has provided additional presence and support for businesses, crime is still occurring.”
By September 2020 the Bike Unit had been fully re-launched with a complement of six officers supervised by Sgt. Kacalek.18 Since the re-launch Berkeley Copwatch has added Ofcr. George Schikore, the Area 4 (West Berkeley) Coordinator,19 as a target for scrutiny in the Operation 100 text messages matter.20 This deeper look will focus on these eight officers, pictured in Figure 1.
Figure 1. Downtown Task Force/Bike Unit Officers
(upper, from left) Darren Kacalek (Badge #88 and S-18), Greg Michalczyk (#9), James Seaton (#66), Tom Stern (#8); (lower, from left) Marissa Pickett (#81), Corey Shedoudy (#127), Dan Breaux (#15), George Schikore (#13). Photos: Berkeley Copwatch
18 Berkeley Police Department, Berkeley PD re-launches our Bike Detail, September 22, 2020, https://berkeleyca.gov/community-recreation/news/berkeley-pd-re-launches-our-bike-detail 19 Berkeley Police Department, Community Liaisons, https://berkeleyca.gov/safety- health/police/community-liaisons (accessed August 8, 2023) 20 Berkeley Copwatch, BPD Textgate Scandal, View The Officers Here, https://www.berkeleycopwatch.org/textgate (accessed August 8, 2023) 24 | Page
6 What Do The Data Say?
The Berkeley Police Department has released Department-wide officer-level arrest activity in response to a public records request.21 The dataset includes:
Arrest Identifiers: Date and Time; Arrest Number; Case Number; Statute(s) Violated Arrest Type, one of: Court Filed (Warrant), Field Cite, On-view by Citizen, On-view by Officer, Suspicion of Felony, Other Arrest
Arrestee Demographics: Race (Asian, Black, Hispanic, White, Other); Sex (Male, Female) Arresting Officer ID (last name, first name initial when needed to disambiguate) A total of 10,330 arrests spanning 60 months (calendar years 2018 to 2022, inclusive) have been reported. These arrests collectively accounted for a total of 22,829 reported statutory violations (on average a bit more than 2 violations per arrest, ranging from 1 to a maximum of 16).
Table 1. Arrests Per Officer, 2018-2022 Total and Monthly Average, Bike Unit vs. BPD Kacalek Breaux Michalczyk Pickett Schikore Seaton Shedoudy Stern DTF/
Bike
Unit
Rest of
BPD
Arrests 52 121 536 114 117 198 84 168 1,390 8,940
Months* 28 43 60 51 39 51 24 40 60 60
Monthly
Average 1.9 2.8 8.9 2.2 3.0 3.9 3.5 4.2 3.8 2.5
* Months in which at least one arrest is reported
Table 1 summarizes the counts of arrests for the 8 Bike Unit officers, individually and as a group, and for the remaining non-Bike Unit officers of the Berkeley Police Department. In a typical month in the sample period about 60 non-Bike Unit BPD officers would make at least one arrest. The monthly average denotes the average over months in which that officer reported at least one arrest.
The most remarkable feature in Table 1 is the average arrest activity of Officer Michalczyk (8.9 arrests per month), more than double the monthly Bike Unit average (3.8), which is itself about 50% higher than the BPD non-Bike Unit average (2.5).
Distinguishing an officer’s voluntary vigor from his laboring under a quota is a difficult task with the data in hand. Table 2 shows the five BPD officers making the most arrests in the sample period. Ofcr. Michalczyk made significantly more arrests
21 City of Berkeley, Public Record Request 23-138, https://cityofberkeleyca.nextrequest.com/requests/23- 138
25 | Page
7 than any other BPD officer. Only one other Bike Unit member, Ofcr. Seaton, was in the top 5.
Table 2. Top 5 BPD Officers, by Arrests, 2018-2022
Officer Arrests Months* Monthly
Average
Greg Michalczyk ** 536 60 8.9
Jason Muniz 228 50 4.6
Wesley Grover 202 54 3.7
James Seaton ** 198 51 3.9
Graham Shivas 190 26 7.3
* Months in which at least one arrest is reported ** DTF/Bike Unit Figure 2 displays the time patterns of Bike Unit and non-Bike Unit arrest activities. The Bike Unit (the solid blue line) attained its monthly maximum of 83 arrests in February 2020, when Ofcr. Michalczyk (the dotted blue line) also reached his monthly arrest maximum (23). Over the 3+ years of the Downtown Task Force/Bike Unit in the dataset, Ofcr. Michalczyk accounted for over one-third of the unit’s arrests.
The peak in DTF/Bike Unit arrest activity shortly before and in the early days of the COVID-19 pandemic is evident.
Figure 2. Time Pattern of Bike Unit Arrests vs. BPD’s Arrest Average
The DTF/Bike Unit average (the solid orange line) of about 3.8 arrests per officer per month (including Ofcr. Michalczyk) is about 50% higher than the non-Bike Unit BPD average (the solid black line), about 2.5 arrests per arresting officer per month. 26 | Page
8 Figure 2 indicates that the “Operation 100” moniker was not literally realized, but failure to attain a quota does not disprove its existence. It is worth noting at the very time the quota was allegedly in effect (2019) the Berkeley Police Association recognized Ofcr. Michalczyk as its Officer of the Year.22 Two years later a supervising sergeant recognized his (and Ofcr. Stern’s) vigor on the Bike Unit, attached as Exhibit 2.23 The Bike Unit (and its predecessor Downtown Task Force) was intended to increase police presence to deter crime. Because a bike officer could be said to be “closer” to the public than a car-borne officer, I would expect a Bike Unit officer to see more instances of crime directly and to respond more rapidly to citizen reports of crimes. This expectation is broadly fulfilled by the relative proportions of arrest types reported in Table 3 below.
In particular, 50% of DTF/Bike Unit arrests were made pursuant to direct observation by the officer (vs. 38% for the rest of BPD). The proportion of Bike Unit arrests due to citizen identifications was also somewhat greater (18% vs. 15%). The shares due to warrant service – aggregating warrants from BPD and outside jurisdictions, felonies and misdemeanors – were equal (15%) between the Bike Unit and the rest of the BPD.
In summary the DTF/Bike Unit arrest type mix shown in Table 3 broadly reflects a more up-close community policing approach than the rest of the BPD. The variation of arrest types across Bike Unit officers does not immediately suggest to me a Unit-wide quota based on the type of arrest.
22 Berkeley Police Association, December 12, 2019,
https://www.facebook.com/BerkeleyPoliceAssoc/posts/pfbid02kCFphZQkQLccoszcUMBtVQAxDsN5t mocjdKumwetFAycNN12zzK3KsZXcKs2Bftkl
23 Berkeley Police Department Memorandum, Commendation for Officers Michalczyk and Stern, April 21, 2021, p. 72 in PAB Special Meeting Packet (part 1 of 3), April 27, 2022, https://berkeleyca.gov/sites/default/files/legislative-body-meeting- attachments/2022.04.27.PAB_.Pkt%281of3%29.pdf. Attached hereto as Exhibit 2. 27 | Page
9 Table 3. Arrest Type Proportions, DTF/Bike Unit vs. BPD, 2018-2022 Kacalek Breaux Michalczyk Pickett Schikore Seaton Shedoudy Stern DTF/
Bike
Unit
Rest of
BPD
On-
View by
Officer
50% 43% 53% 32% 59% 58% 46% 40% 50% 38%
On-
View by
Citizen
13% 14% 21% 14% 6% 21% 24% 17% 18% 15%
Warrant 2% 17% 12% 24% 28% 11% 8% 17% 15% 15%
Susp.
Of
Felony
31% 14% 13% 19% 4% 9% 14% 23% 14% 27%
Field
Cite 4% 10% 0% 11% 2% 2% 7% 4% 3% 5%
Other
Arrest 0% 2% 0% 0% 1% 0% 0% 0% 0% 1%
Total 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% Did the Bike Unit Charge Different Violations From the Rest of BPD? Ex-Ofcr. Shedoudy has alleged the DTF/Bike Unit under Sgt. Kacalek used “questionable legal tactics that included stop and frisk, probation searches with no reasonable suspicion of a crime, and a very loose interpretation of stay-away orders from UC Berkeley.”24 The available arrest data do not directly measure Bike Unit search behavior but they do indicate the frequency that officers (claimed to have) found probable cause that certain statutory violations could be charged to make an arrest.
The top ten statutory violations charged by the Bike Unit and by the rest of BPD over the sample period 2018-2022 are shown in Table 4. These statutory violations (charges) can be grouped into meaningful categories of the California Penal Code25 as follows:
- Warrants for arrest issued by a court pursuant to a probable-cause statement by BPD or another law enforcement agency, for felony or misdemeanor offenses;26 - Violation of a court order, including probation for felony (f) or misdemeanor (m) offenses, or prohibition of some other activity (e.g. a stay-away order);27
24 “November 10, 2022, Email from Corey Shedoudy,” supra n. 1, p. 36 25 California Penal Code,
https://leginfo.legislature.ca.gov/faces/codesTOCSelected.xhtml?tocCode=PEN&tocTitle=+Penal+Code+-+PEN 26 Cal. P.C. §§ 813-829, The Warrant of Arrest. Note that the Table 4 proportions for Warrant arrests are lower than in Table 3 because other offenses for a given arrest may have been reported in Table 4. 27 Cal. P.C. §§ 1203.2 (felony & misdemeanor), 166(A)(4) 28 | Page
10 - Substance abuse, specifically possession of drug paraphernalia or methamphetamine, or public intoxication;28
- Property crime, specifically petty theft (value less than $950) or burglary;29 and - Resisting arrest incident to apprehension for some other offense.30 These listed charges in Table 4 constituted 63% of Bike Unit arrests but only 44% of arrests by the rest of BPD, consistent with more diffuse crime patterns across the wider city.
Table 4. Arrest Charge Proportions, DTF/Bike Unit vs. BPD, 2018-2022 Charge Kacalek Breaux Michalczyk Pickett Schikore Seaton Shedoudy Stern DTF/
Bike
Unit
Rest of
BPD
Warrant* 6% 12% 11% 18% 21% 10% 7% 12% 12% 11%
Probation
violation (m) 10% 7% 15% 8% 11% 15% 16% 11% 13% 5%
Probation
violation (f) 4% 5% 2% 1% 2% 3% 2% 2% 2% 4%
Violation of
court order 5% 0% 4% 1% 5% 3% 3% 1% 3% 1%
Poss. of drug
paraphernalia 7% 9% 14% 11% 9% 9% 11% 14% 12% 5%
Poss. of meth-
amphetamine 3% 4% 8% 5% 7% 6% 5% 7% 7% 4%
Public
intoxication 7% 2% 2% 5% 4% 6% 3% 2% 3% 3%
Petty theft 2% 3% 9% 8% 1% 6% 11% 7% 7% 4%
Burglary 1% 0% 1% 0% 1% 1% 1% 1% 1% 4%
Resisting
arrest 4% 2% 3% 4% 2% 4% 4% 5% 3% 3%
Subtotal 48% 44% 69% 61% 63% 64% 63% 62% 63% 44%
Other 52% 56% 31% 39% 37% 36% 37% 38% 37% 56%
Grand Total 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% * Warrant = BPD & Outside Agency, felony (f) & misdemeanor (m) Poss. = possession The Bike Unit executed warrants in approximately the same proportion of its arrests (12%) as the rest of BPD (11%), and arrested approximately the same proportion due to property crime (both totaling about 8%) and for resisting arrest (both 3%).
28 Cal. P.C. §§ 11364(A), 11377(A), 647(F)
29 Cal. P.C. §§ 484(A), 459
30 Cal. P.C. § 148(A)(1)
29 | Page
11 Bike Unit arrests for violation of court orders were about twice as frequent relative to the rest of BPD, especially for misdemeanor probation violation (13% vs. 5%) and other court orders (3%, about triple BPD’s 1%).
This relatively greater frequency bears upon the “questionable legal tactics” that ex-Ofcr. Shedoudy has alleged. It is noteworthy that, among Bike Unit members, the ex- officer made proportionately the most arrests for misdemeanor probation violation (16% of his total) and approximately the Bike Unit average (3%) for violation of court orders (e.g. stay-aways).
Bike Unit arrests for substance abuse were about twice as frequent relative to the rest of BPD, particularly possession of drug paraphernalia (12% vs. 5%) and possession of methamphetamine (7% vs. 4%).
The prevalence of drug abuse in the Bike Unit’s territory – and consequent arrests – should come as no surprise to anyone who walked the streets of downtown Berkeley (especially Shattuck Avenue from Hearst Ave. south to Derby St.) or south of campus (including Peoples Park), particularly in the 2019-2022 period.
For example, on August 30, 2021, about 7:30 PM, I walked past an encampment on the southeast corner of Shattuck Ave. and Blake St. Three men focused intently on a vessel they held over a camp stove. They glowered at me as I passed, seemingly irritated at my presence on a public street corner. A fourth man wearing a blanket in the manner of a cape danced with a nearby streetlight pole, oblivious to the world. I later learned that, two hours later at that site, a BPD officer revived a man who may have overdosed on fentanyl.31 The encampment, the glowering, the oblivion, the overdose has become all too typical in Berkeley, particularly in the Bike Unit’s territory.
Bike Unit arrests solely for resisting arrest were slightly more frequent than for the rest of BPD. Arrests for which the only statutory violation listed is 148 (A)(1) (resisting the arrest itself) naturally invite scrutiny to determine whether the arrest was otherwise baseless – a possible abuse of police discretion – or whether a legitimate basis for arrest was not captured in the dataset. In the data 20 of the BPD’s 8,940 arrests were solely for resisting arrest, or a rate of 0.22%. The corresponding rate for the Bike Unit was 4 of 1,390 arrests, or 0.29% (slightly higher, implying 1 more such arrest by the Bike
31 Berkeley Police Department, Unresponsive man revived with Narcan, August 31, 2021, https://berkeleyca.gov/community-recreation/news/unresponsive-man-revived-narcan 30 | Page
12 Unit than if the BPD rate had obtained). This difference does not point toward a quota being satisfied with this potentially worrisome cause for arrest.
In summary the DTF/Bike Unit mix of charges (statutory violations) is more heavily weighted toward probation violations and substance abuse violations than the rest of the Police Department. Whether this emphasis reflects lowered thresholds below Constitutionally and Departmentally acceptable standards, or higher prevalence among the arrestee community in the Bike Unit territory, is an open question with the data in hand.
Were Bike Unit Arrests Racially Discriminatory?
Ex-Ofcr. Shedoudy has alleged a “practice of…racism…inside that [DTF/Bike] unit.”32 The arrest data can identify what the Bike Unit officers did in practice, but not what they felt in principle or attitude. The racial categorization of each Bike Unit officer’s arrests, and for the DTF/Bike Unit as a whole and for the rest of the BPD, is presented in Table 5.
Table 5. Arrestee Race Proportions, DTF/Bike Unit vs. BPD Race Kacalek Breaux Michalczyk Pickett Schikore Seaton Shedoudy Stern DTF/
Bike
Unit
Rest of
BPD
Black 42% 52% 48% 54% 30% 44% 44% 51% 47% 50%
White 52% 27% 41% 31% 51% 40% 37% 39% 40% 28%
Asian 0% 2% 1% 3% 5% 1% 2% 1% 2% 3%
Hispanic 2% 17% 8% 10% 9% 12% 13% 5% 9% 14%
Other 4% 2% 3% 3% 4% 3% 4% 4% 3% 5%
Total 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% As a unit, the DTF/Bike Unit arrested proportionately fewer Black and Hispanic persons than the rest of the BPD as a whole (Black: 47% vs. 50%, Hispanic:
9% vs. 14%), and markedly proportionately more white persons (40% vs. 28%).
The variation across Bike Unit officers displays no distinct pattern. Of the Bike Unit members, Ofcr. Pickett arrested proportionately the most Black persons (54%); Sgt.
Kacalek arrested proportionately the most white persons (52%); Ofcr. Schikore arrested proportionately the fewest Black persons (30%); while Ofcr. Breaux arrested
32 “November 10, 2022, Email from Corey Shedoudy,” supra n. 1, p. 36 31 | Page
13 proportionately the fewest white persons (27%) but proportionately the most Hispanic persons (17%, nearly twice the Bike Unit average).
As the Center for Policing Equity summarized in 2018, at least two competing but not mutually exclusive explanations could be at work: community factors such as racially disparate crime rates, and policing factors whereby officer discretion results in observed differences.33 It would be premature to assign variation only to policing factors from outcome data such as in Table 5. Additional information such as text messages among the Bike Unit could be illuminating.
In summary, compared to the rest of the Berkeley Police Department during the sample period 2018-2022, the DTF/Bike Unit racial disparities of arrests are weighted more heavily toward white arrestees and less toward Black and Hispanic arrestees.
Nonetheless there persists a disparity in arrests of Black persons relative to their proportion of Berkeley residents due to a mix of community and policing factors. But I do not observe the operation of a quota according to race – a traditional concern about quotas – from the proportions shown for Bike Unit officers in Table 5.
Berkeley’s History Against Arrest Quotas
August Vollmer, the first chief of the Berkeley Police
Department, was applauded by an audience of his fellow police chiefs in 1919 when he identified arrests as an incomplete measure of public safety:34
“Police efficiency should be measured by the amount of
crime, poverty and sickness which is prevented on the
beat, and not by the number of arrests made by the officer. (Applause)”
(Chief Vollmer’s speech is attached as Exhibit 3. I commend it as a marker of police thought from a century ago that could inform today’s Reimagining Public Safety initiative.)
33 Center for Policing Equity, Berkeley Police Department - National Justice Database City Report, May 2018, pp. 7-8, in Report and Recommendations From Mayor’s Fair and Impartial Policing Working Group, February 23, 2021, https://berkeleyca.gov/sites/default/files/documents/2021-02- 23%20Special%20Item%2001%20Report%20and%20Recommendations.pdf (pp. 51-52 of 201) 34 August Vollmer, “The Policeman as a Social Worker,” Proceedings of the 26th Convention of the International Association of Chiefs of Police, New Orleans, Louisiana, April 14-16, 1919, p. 36. Attached hereto as Exhibit 3.
August Vollmer in 1929
Photo: Library of Congress
32 | Page
14 Since 1976 California has legislated against arrest quotas35 due to the advocacy of Assemblymember John J. Miller, who chaired the Assembly Judiciary Committee while representing Berkeley and Oakland in the then-13tth District. As he said at the time,36 “[A police officer] will feel under an obligation to write a ticket even in those cases where a citizen may not have committed a crime beyond all reasonable doubt…[It]
goes against our historical concepts of justice and fair play.”
(Asm. Miller represented Berkeley until 1978 when he was succeeded by Elihu Harris. He then served on the California First District Court of Appeal until his death in 1985.)
Recent legal commentary has explored police quotas, of
which arrest quotas are an important variety. Professor Shaun Ossei-Owusu of the University of Pennsylvania Carey Law School has explained that, despite objections from police unions and racial minorities, arrest quotas are still practiced, even in jurisdictions in which they have been prohibited. 37 Quotas risk sacrificing quality (particularly legality) for quantity in undesirable ways.38 His article is attached as Exhibit 5. (To continue the Berkeley theme of this section: Professor Ossei-Owusu earned his J.D. from Berkeley Law School and his Ph.D. from the U.C. Berkeley Department of African American Studies.)39
Issues of Potential Interest to the Police Accountability Board The PAB should continue its investigation, I hope with the benefit of this memorandum’s findings. I suggest several investigative directions:
35 California Vehicle Code §§ 41600-41603, Arrest Quotas, supra n. 2. Also attached as Exhibit 1. 36 Berkeley Gazette, “Measure to outlaw CHP’s ticket quotas,” July 22, 1975, p. 1. Attached as Exhibit 4. 37 Shaun Ossei-Owusu, “Police Quotas,” 96 New York University Law Review 529-605, available as Faculty Scholarship at Penn Law, https://scholarship.law.upenn.edu/faculty_scholarship/2835. Attached as Exhibit 5.
38 E.g. Ossei-Owusu, supra n. 37, pp. 579-580, “Thin Evaluations,” esp. fn. 305 39 Shaun Ossei-Owusu LPS ’08, https://www.law.upenn.edu/faculty/oss Assemblymember John J.
Miller in 1969. Photo:
California State Library
Shaun Ossei-Owusu
Photo: Penn Carey Law
School
33 | Page
15 1. Ex-Ofcr. Shedoudy has characterized the text messages he has already released as “the tip of the iceberg,” and that he would release “hundreds of DTF/Bike Force text messages” at the conclusion of his arbitration (appealing his termination from BPD service).40 This Board should request those additional text messages from ex-Ofcr. Shedoudy for review to more fully understand the operation of the alleged arrest quota that my analysis in this memorandum has failed to detect.
2. Ex-Ofcr. Shedoudy has alleged that the Bike Unit was ordered to perform “probation searches with no reasonable suspicion of a crime.”41 Table 4 above indicates that (among Bike Unit members) ex-Ofcr. Shedoudy arrested proportionally the most persons for misdemeanor probation violations. This Board should invite the ex-officer to disclose whether the alleged arrest quota induced him to make arrests that were, in retrospect, unjustifiable in the eyes of the law.
3. The strongest evidence that a quantitative target may have driven arrests concerned Ofcr. Michalczyk’s “Operation 100.” Table 2 and Figure 2 illustrate that Ofcr. Michalczyk has arrested far more people than any other BPD officer in the past five years. This Board should seek Ofcr. Michalczyk’s account of this activity, including his perception of the beat he has patrolled, and whether Bike Unit practices (including but not limited to a quota) have given rise to it. Under the City Charter this Board can compel attendance, and even subpoena, an officer,
42 but I do not envision this account to require those measures. The purpose of my suggestion is for the Board to review this particular Police Department practice so as to understand it.
4. The arrest quantities reported in this memorandum are separate from their quality, most notably their adequacy for prosecution by the Alameda County District Attorney (ACDA). This Board should seek from ACDA the prosecutorial outcomes for the cases brought by Bike Unit arrests and for the
40 “November 10, 2022, Email from Corey Shedoudy,” supra n. 1, p. 37, 36 41 “November 10, 2022, Email from Corey Shedoudy,” supra n. 1, p. 36 42 Berkeley City Charter, Article XVIII, Police Accountability Board and Director of Police Accountability, § 125(3)(a)(5), https://berkeley.municipal.codes/Charter/ArtXVIII 34 | Page
16 Department as a whole. In particular, charges that ACDA deems legally insufficient (possibly indicating inadequate police work) should be distinguished from charges dropped for other reasons such as the exercise of prosecutorial discretion. The consultation of an outside source as to arrest quality would benefit the Board’s understanding of BPD arrest activity.
5. A separate (albeit coarse) measure of an arrest’s quality is whether it has given rise to a citizen complaint to the Board, the Police Department, or the courts.
This Board should seek from BPD all complaints (indexed with the BPD Case Number) in the past 5 years to determine whether any were connected to the Bike Unit, and how they compared to complaints about the rest of BPD.
Any inquiry by this Board into legal actions resulting from BPD arrests would likely compete with Berkeley Copwatch’s recruitment of class-action plaintiffs to sue the City of Berkeley,
43 so I am less optimistic about that effort.
6. There has been much recent discussion of an early intervention system (EIS) to “inform goals and strategies and improve [BPD] accountability and transparency.”44 This Board should consider in its investigation the informational requirements of an EIS capable of (correctly) detecting an alleged arrest quota, including in the case of the energetic Ofcr. Michalczyk.
Would information outside the Police Department be required to correctly identify an undesirable (indeed, illegal) practice such as an arrest quota? If so, what? This consideration may help set realistic expectations for the performance of the EIS ultimately adopted (now in the acquisition process).
7. The quantitative analysis presented here has compared the Bike Unit (and its individual officers) to the rest of BPD to determine whether the Bike Unit exhibited problematic behavior due to the alleged arrest quota on its operations.
Such problematic behavior has not been found. This analysis has not established that the rest-of-BPD comparator is free from problematic behavior, contrary to
43 Berkeley Copwatch, BPD Textgate Scandal, supra n. 20, “We are now in a process of gathering information and looking for plaintiffs for a class-action lawsuit” (accessed August 9, 2023) 44 Councilmember Harrison and Vice Mayor Bartlett, Referral $100,000 to the June 2023 Budget Process to Design a Comprehensive Berkeley Police Early Intervention and Risk Management System, April 11, 2023, https://berkeleyca.gov/sites/default/files/documents/2023-04- 11%20Item%2025%20Referral%20100%2C000%20to%20the%20June%2C%202023.pdf 35 | Page
17 the assertions of one City official.45 Indeed, these assertions were rejected by deputy city manager LaTanya Bellow: “We regret that the investigation’s findings were characterized too broadly in the press.”46 I quite agree.
The analysis here has established that Black persons in Berkeley are arrested by both the Bike Unit and the rest of BPD at a rate more than six times their proportion of the City’s residential population. Table 6 compares the racial proportions of Table 5 to the proportions from the 2020 Census.47 Table 6. Berkeley Population vs.
Arrestee Race Proportions, DTF/Bike Unit & BPD
Race 2020
Census
DTF/
Bike Unit Rest of BPD
Black 7.6% 47% 50%
White 50.2% 40% 28%
Asian 19.9% 2% 3%
Hispanic 13.7% 9% 14%
Other 8.6% 3% 5%
Total 100% 100% 100%
This disparity likely traces to the community factors and policing factors touched on by the Center for Policing Equity.48 In any event the true measure of fair and impartial policing would be whether the threshold of arrest across the racial categories is equal. Assessing such a threshold turns out to be a remarkably difficult technical problem.49 Arrest data such as in Tables 5 and 6 do not suffice to establish that proposition, so sliding from (mathematical) racial disparity to (behavioral) racial bias would be unjustified at this stage.
45 Emilie Raguso, “No arrest quotas, no racial bias: Berkeley police bike team cleared of claims by fired cop,” The Berkeley Scanner, July 20, 2023,
https://www.berkeleyscanner.com/2023/07/20/policing/berkeley-police-bike-team-cleared-systemic- problems/ (“’The investigation found that the department does not have a practice of racial bias,’ said city spokesman Matthai Chakko. ‘The investigation found that the department does not have any arrest quotas.’”)
46 LaTanya Bellow remarks, City Council regular meeting, July 25, 2023, 2:12:01-2:13:24, http://berkeley.granicus.com/player/clip/5093?view_id=5&redirect=true&entrytime=7921&stopti me=8024&autostart=0&embed=1&redirect=true&h=40d32dbeb55e5e9296a17e679bea5bb0 47 Wikipedia, Berkeley, California – Demographics – 2020 Census, https://en.wikipedia.org/wiki/Berkeley,_California#2020_census 48 Center for Policing Equity, supra n. 33
49 Camelia Simoiu, Sam Corbett-Davies, and Sharad Goel, “The Problem of Infra-Marginality in Outcome Tests for Discrimination,” 11 The Annals of Applied Statistics 3: 1193-1216, September 2017, https://5harad.com/papers/threshold-test.pdf
36 | Page
18 A police officer’s task is to arrest the arrest-worthy, not some arbitrary percentage of the population. For the arrestee population to match the residential population along some dimension would require (incongruously enough) a sort of quota. This Board should remain aware of the range of factors that lead to arrest outcomes as displayed in Tables 5 and 6. At this stage those outcomes neither indict nor exonerate the Police Department as to racial discrimination.
Conclusions
1. I do not find quantitative evidence of an arrest quota despite the attention of the Bike Unit supervisor to the count of arrests.
2. I do find that one particular Bike Unit officer has made an unusually large number of arrests during the past five years.
3. The mix of Bike Unit arrest types is broadly consistent with the community policing orientation of the Bike Unit.
4. The mix of statutory violations charged is more heavily weighted toward drug offenses and probation violations than the overall BPD, possibly a consequence of the types of offenders found in the Bike Unit’s territory.
5. The racial disparity in Bike Unit arrests is more heavily weighted toward white arrestees than arrests by the rest of the Police Department, but still exhibits the same disparity of arrests of Black persons that has long characterized police activity in Berkeley.
I recommend that the Police Accountability Board continue its investigation to understand more completely the alleged arrest quota scheme and whether individual officer behavior suffices to explain observed arrest patterns. I also recommend that other elements beyond the alleged arrest quota – notably, racist and malicious communications during City work time – be fully investigated.
Exhibit 1 – California Vehicle Code §§ 41600-41603 Arrest Quotas Exhibit 2 – Commendation for Officers Michalczyk and Stern, April 21, 2021 Exhibit 3 – August Vollmer, “The Policeman as a Social Worker,” April 1919 Exhibit 4 – The Berkeley Gazette, “Measure to outlaw CHP’s ticket quotas,” July 22, 1975
Exhibit 5 – Shaun Ossei-Owusu, “Police Quotas,” New York University Law Review, May 2021
37 | Page
EXHIBIT 1
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DIVISION 17. OFFENSES AND PROSECUTION [40000.1 - 41610] ( Division 17 enacted by Stats. 1959, Ch. 3. ) CHAPTER 7. Arrest Quotas [41600 - 41603] ( Chapter 7 added by Stats. 1976, Ch. 1111. ) For purposes of this chapter, “arrest quota” means any requirement regarding the number of arrests made, or the number of citations issued, by a peace officer, or parking enforcement employee, or the proportion of those arrests made and citations issued by a peace officer or parking enforcement employee, relative to the arrests made and citations issued by another peace officer or parking enforcement employee, or group of officers or employees.
(Amended by Stats. 2002, Ch. 105, Sec. 1. Effective January 1, 2003.) For purposes of this chapter, “citation” means a notice to appear, notice of violation, or notice of parking violation.
(Added by Stats. 1976, Ch. 1111.)
For purposes of this chapter, “agency” includes the Regents of the University of California. (Added by Stats. 2002, Ch. 105, Sec. 2. Effective January 1, 2003.) No state or local agency employing peace officers or parking enforcement employees engaged in the enforcement of this code or any local ordinance adopted pursuant to this code, may establish any policy requiring any peace officer or parking enforcement employees to meet an arrest quota. (Amended by Stats. 2002, Ch. 105, Sec. 3. Effective January 1, 2003.) No state or local agency employing peace officers or parking enforcement employees engaged in the enforcement of this code shall use the number of arrests or citations issued by a peace officer or parking enforcement employees as the sole criterion for promotion, demotion, dismissal, or the earning of any benefit provided by the agency. Those arrests or citations, and their ultimate dispositions, may only be considered in evaluating the overall performance of a peace officer or parking enforcement employees. An evaluation may include, but shall not be limited to, criteria such as attendance, punctuality, work safety, complaints by civilians, commendations, demeanor, formal training, and professional judgment. (Amended by Stats. 2016, Ch. 99, Sec. 7. (AB 1953) Effective January 1, 2017.) Home Bill Information California Law Publications Other Resources My Subscriptions My Favorites 39 | Page
EXHIBIT 2
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5^
International Association
»
• « • of ft*
CHIEFS of POLICE
POLICE
Proceedings 26th Convention
NEW ORLEANS, LOUISIANA
April ]4, 15 and 16, 1919
/
43 | Page
3^ INTERNATI ONAL ASSOCIAT 'ION'
each' man' in' the police department which we represent in the ^re'at li'6hltli prohleiA* fa'ced by the nation, in the importance of men' and Women keeping clean and free from disease and in preventing pros- tlthtroh and the spread of the most insidious and most infectious disease meha'cing' the nation’s welfare*. We can follow up the great work done by the Government durihg the war by co-operating with evety agenc^ wording to prevent disease*.
, In an address, made recently by Doctor C. C. Pierce, in charge of seCtiohi of^vePereal diseases of the' United States Public Health Service, in'Washington, the statement was made that more progress' had been made, ih the past yeat in venereal disease control than could haVe been accomplished' in twenty-five years in ordinary times of peace, ahd sutely this’ progress is one' of the greatest benefits coming to the people of the United States as the result of our participation ih’the World whr. ’
I rix'ay .say, in- closing, that' I believe a better' ’day is coming for the police* df this country, that we are going to be more appreciated 'as public servants'; that the individual copper on the' beat is, going to be m'ore appreciated, that he is going to be paid better, that* the people will' hot* I'oOk upon him as' anyone tied up* in' any' way whatsoever with Wrongdbing, or lawbreaking; of any kind, but will look upon him’ as a man trying to make the city in which he lives as decent as possible.
WheWyou hear a city talked of by any ope, he .usually tries to make that city appear to be the best city possible. 'Well, let us, while we ate' appearing in conventions', or at any other time, try to make our ci'fjies just aS decent as we can, in order to protect others-, in order to protect ourselves, and in order .to protect the members of our families.
And P feci that this subject of the co-o'peratioU of the police with the/ B ’oaT'd of Health and other departments of the city, state' and federal governments, is exceedingly important*, .and there* is nh end to the good' work which you can do just by a- little interest in this thing. , I h^av^ 'had sent here a selected number of pamphlets gdfteh out by the United' States Health Service, of 'a* popular nature, which has beeU'^ gotten up-' in an envelope which you may either open, if yop are in-' ter'ested, if you are not interested, and which you may' mail, if you desir^; if you do not desire to do so, perhaps will interest you when you get'back home, and if you want others, all you have to do is to write the Phblic Health Service, which is doing a vast, amoilnt of good work iri cbnuection with Rotary Clubs, Chapibers of Commerce, and othdr bodies* throughout the country, which are doirig a great work in connection with this subject of public health.
, r thank you. (Applause).
President Long: Those papers you speak of, Mr. Pull-
rtian, liiay. be distributed.
. Major Pullmall: Thank you, (Dhief.
President Long: We shall next hear a paper prepped
by Chief Vollmer, of fier'keley, Califprn'ia. ( Appraus'e). ‘Chief Vollmer: Mr. President, ladies a'nd gentlemen: I always dsXeem' it" a privilege' to prepare a paper. When the President calls upon me to prepare a' pa'per, I am' pretty well flattered. I think it is a Wonderful thing to' get an Opportunity to present your views,, even if they may be wrong. It g-i'ves the other fellow an opportunity td telf you that you are Wrong, and you' may g'et a*^ good idea*.
The Subject of my paper is: • “The policeirfan as a' social worker.” Crime prevention, that all-important police’ function, is .compelling the* attention' of some of the. world’s greatest thinkers^ and though OF- CH-IEFS. op POLICE 33
1 the appreciation of criminology as a sciei^e is
the surface has been n^erely scratched,. Sufficient light on- the subject 'to prove that old methods of dealing with cri^e mu^st be changed, ahd newer on^s adopted. The time to begin is past bp thp timp to keen e'oine’ what has been started is now. ,fOrdinarily, the policeman feels \that his/ duty is well done ■'yhen offender is promptly apprehended and placed behind the bars. His failure to note that the prisoner may be the sole .support or. a large family, who, left to shift for themselves, must steal or starve, is only one of .numerous mistakes that our peace guardians are making, in 'their efforts to serve the public faithfully.Big, healthy, honest, and kind, ready to die without hesitancy -when duty calls them, their usefulness is impaired reason of their ignorance of the. many causes of delinquency. Even though the expe rienced policeman knows that poverty, unemployment, conditi ons, bad companions, sickness, alcohol, gambling and prostitu tion are crime'faetprs, he does not feel that it is any part of his duty to assist in the correction or elimination of these great contributors to ”GoSipera’tion. with social service agencies ie out of the quM^mn; they can do nothing to help him, nor has he the time nor the inclina- tioJ to'assist them. Polipemen do aid . the injured, lodger a cot to sleep on, search for missing persons, and render .other services not necessarily police duties, but here ends their activities as ^^H^e^eT^he pendulum* is beginning to swing the other way, and the policeman is- beginning to realize his po-wer as a sucmi worker, and the future is frought with wonderful possibilities, if all will real ize their potential worth- .....
_,The policeman is learning that dependency, criininality and indus trial unrest have a common origin, and that upon him rest far more important and far greater obligations than the mere apprehending and prosecuting of lawbreakers. He is fast learning that with criminals after the evil habits have been formed is a hopeless task as far as the eradication, or even lessening of crime is concer ed.
If he would- serve his community by reducing crime he must go up- the stream a little further and dam it up at its source, and not wait until it is a rushing torrent, uncontrollable and resistless. More over, if he would succeed in his efforts he must utilize to the fullest extent every helpful agency in' the community, such as schools, churches, recreation and juvenile departments public welfare and employment bureaus, clinics, dispensaries, hospitals and fraterna. and labor organizations'. Co-operation is also necessary with character forming organizations, such as Boy Scouts, Campfire Girls, -well or ganized-boys’ clubs, community social centers and auxiliary and. junior ^^Nor must the modern police overlook the importance of publicity in social' police work, since after all is said and done, unl^s_ the public is informed his efforts to bring about a better state of affairs wjll not be fruitful- of results. This most desirable publicity of police social work-sm^ulfi be- spread by the citizens of the community and by proper newspaper propaganda. . , *. ,And the work which Major Pullman has just- referred tq m one of the things that we should keep going, and keep going-fast.Much desirable publicity can also-be spread • by-means of social educational circularization, and not by any means the least important, an occasional instructive as-well as interesting moving picture of- such police work should be presented. .Suchtmjjving pictures as have been-spoken, of by Major Pullman-just 44 | Page
3^ INTERNATI ONAL ASSOCIAT 'ION'
each' man' in' the police department which we represent in the ^re'at li'6hltli prohleiA* fa'ced by the nation, in the importance of men' and Women keeping clean and free from disease and in preventing pros- tlthtroh and the spread of the most insidious and most infectious disease meha'cing' the nation’s welfare*. We can follow up the great work done by the Government durihg the war by co-operating with evety agenc^ wording to prevent disease*.
, In an address, made recently by Doctor C. C. Pierce, in charge of seCtiohi of^vePereal diseases of the' United States Public Health Service, in'Washington, the statement was made that more progress' had been made, ih the past yeat in venereal disease control than could haVe been accomplished' in twenty-five years in ordinary times of peace, ahd sutely this’ progress is one' of the greatest benefits coming to the people of the United States as the result of our participation ih’the World whr. ’
I rix'ay .say, in- closing, that' I believe a better' ’day is coming for the police* df this country, that we are going to be more appreciated 'as public servants'; that the individual copper on the' beat is, going to be m'ore appreciated, that he is going to be paid better, that* the people will' hot* I'oOk upon him as' anyone tied up* in' any' way whatsoever with Wrongdbing, or lawbreaking; of any kind, but will look upon him’ as a man trying to make the city in which he lives as decent as possible.
WheWyou hear a city talked of by any ope, he .usually tries to make that city appear to be the best city possible. 'Well, let us, while we ate' appearing in conventions', or at any other time, try to make our ci'fjies just aS decent as we can, in order to protect others-, in order to protect ourselves, and in order .to protect the members of our families.
And P feci that this subject of the co-o'peratioU of the police with the/ B ’oaT'd of Health and other departments of the city, state' and federal governments, is exceedingly important*, .and there* is nh end to the good' work which you can do just by a- little interest in this thing. , I h^av^ 'had sent here a selected number of pamphlets gdfteh out by the United' States Health Service, of 'a* popular nature, which has beeU'^ gotten up-' in an envelope which you may either open, if yop are in-' ter'ested, if you are not interested, and which you may' mail, if you desir^; if you do not desire to do so, perhaps will interest you when you get'back home, and if you want others, all you have to do is to write the Phblic Health Service, which is doing a vast, amoilnt of good work iri cbnuection with Rotary Clubs, Chapibers of Commerce, and othdr bodies* throughout the country, which are doirig a great work in connection with this subject of public health.
, r thank you. (Applause).
President Long: Those papers you speak of, Mr. Pull-
rtian, liiay. be distributed.
. Major Pullmall: Thank you, (Dhief.
President Long: We shall next hear a paper prepped
by Chief Vollmer, of fier'keley, Califprn'ia. ( Appraus'e). ‘Chief Vollmer: Mr. President, ladies a'nd gentlemen: I always dsXeem' it" a privilege' to prepare a paper. When the President calls upon me to prepare a' pa'per, I am' pretty well flattered. I think it is a Wonderful thing to' get an Opportunity to present your views,, even if they may be wrong. It g-i'ves the other fellow an opportunity td telf you that you are Wrong, and you' may g'et a*^ good idea*.
The Subject of my paper is: • “The policeirfan as a' social worker.” Crime prevention, that all-important police’ function, is .compelling the* attention' of some of the. world’s greatest thinkers^ and though OF- CH-IEFS. op POLICE 33
1 the appreciation of criminology as a sciei^e is
the surface has been n^erely scratched,. Sufficient light on- the subject 'to prove that old methods of dealing with cri^e mu^st be changed, ahd newer on^s adopted. The time to begin is past bp thp timp to keen e'oine’ what has been started is now. ,fOrdinarily, the policeman feels \that his/ duty is well done ■'yhen offender is promptly apprehended and placed behind the bars. His failure to note that the prisoner may be the sole .support or. a large family, who, left to shift for themselves, must steal or starve, is only one of .numerous mistakes that our peace guardians are making, in 'their efforts to serve the public faithfully.Big, healthy, honest, and kind, ready to die without hesitancy -when duty calls them, their usefulness is impaired reason of their ignorance of the. many causes of delinquency. Even though the expe rienced policeman knows that poverty, unemployment, conditi ons, bad companions, sickness, alcohol, gambling and prostitu tion are crime'faetprs, he does not feel that it is any part of his duty to assist in the correction or elimination of these great contributors to ”GoSipera’tion. with social service agencies ie out of the quM^mn; they can do nothing to help him, nor has he the time nor the inclina- tioJ to'assist them. Polipemen do aid . the injured, lodger a cot to sleep on, search for missing persons, and render .other services not necessarily police duties, but here ends their activities as ^^H^e^eT^he pendulum* is beginning to swing the other way, and the policeman is- beginning to realize his po-wer as a sucmi worker, and the future is frought with wonderful possibilities, if all will real ize their potential worth- .....
_,The policeman is learning that dependency, criininality and indus trial unrest have a common origin, and that upon him rest far more important and far greater obligations than the mere apprehending and prosecuting of lawbreakers. He is fast learning that with criminals after the evil habits have been formed is a hopeless task as far as the eradication, or even lessening of crime is concer ed.
If he would- serve his community by reducing crime he must go up- the stream a little further and dam it up at its source, and not wait until it is a rushing torrent, uncontrollable and resistless. More over, if he would succeed in his efforts he must utilize to the fullest extent every helpful agency in' the community, such as schools, churches, recreation and juvenile departments public welfare and employment bureaus, clinics, dispensaries, hospitals and fraterna. and labor organizations'. Co-operation is also necessary with character forming organizations, such as Boy Scouts, Campfire Girls, -well or ganized-boys’ clubs, community social centers and auxiliary and. junior ^^Nor must the modern police overlook the importance of publicity in social' police work, since after all is said and done, unl^s_ the public is informed his efforts to bring about a better state of affairs wjll not be fruitful- of results. This most desirable publicity of police social work-sm^ulfi be- spread by the citizens of the community and by proper newspaper propaganda. . , *. ,And the work which Major Pullman has just- referred tq m one of the things that we should keep going, and keep going-fast.Much desirable publicity can also-be spread • by-means of social educational circularization, and not by any means the least important, an occasional instructive as-well as interesting moving picture of- such police work should be presented. .Suchtmjjving pictures as have been-spoken, of by Major Pullman-just 45 | Page
34 ' INTERNA TIONAL ASSOCIAT ION
* 1
,now> 'and others^, think, specially prepared by the- Los Angeles Police Department, showing the things that .actually confronts the policeman, , showing the difficulties and th© temptations that beset him, showing after all ,that the policeman is not such a bad fellow.
You will ask what can the'policeman do, and how shall he,proceed to got the best results. 'My answer is,—'fight for everything which helps to decrease crime and dependency; and in this cpnnection a few suggestions are offered for* social service work in the community an,d state. And Ifet me add that these are merely a few, suggestions. There are m&ny, many possibilities. ,
In many- cities the schools are unable to accommodate all of the school children. This results in many of them being on the streets^ with the attendant evils. The policeman can do his< share to correct ' this condition by stating the facts to the voters whenever an oppor tunity is afforded.
It is also tfue that no city in this country gives sufficient thought to the physical-welfare of the children. Supervised recreation grounds are few in number, and we know from experience that much of our -juvenile problem may be traced to misdirected eneregy. Here again, the policeman in his rounds; and in contact with people generally, can be useful by calling attention to the community’s need for suffi cient play ground space for children to give expression to their ^ay tendencies.
“ The school and the church as community social centers have passed the experimental stage in several cities. ‘As agencies for the Ameri canization of the community’s foreign element the school and the church community social centers rank first. Social centers will dis place-the saloons, the dance halls and gambling dens and will serve to dispel or prevent other social factors of evil tendencies. Social center activities should be encouraged in every way.
^The child study departments in. our schools are of great" importance in detecting the. child of unusual abilities or disabilities, thus making it possible to give timely physical, mental and' moral -direction to the potentially dependent or delinquent child, as well as-to give-whole some encouragement and special direction to the child of more than average ability. The data which the child study department is able to furnish will be of immense value to the teachers in pur schools in training our children' toward better citizenship.
Free clinics and dispensaries are ^invaluable in the community, but frequently are handicapped by lack of fnuds. Statistics are not want ing of cases of delinquency directly attributable to physical abnormal ities, such as defective visiort, defective hearing, defective teeth, - adenoids, and numerous oth6r pathological conditions. Poor people may bd unable to employ the services of a family physician to correct these defects, and if there are no well conducted 'clinics to which the child can be taken for diagnosis and treatment, there is always the possibility that the police may have to deal with the child as .a delin- quency_ problem.
Public welfare bureaus, like the clinics and dispensaries, actually have to fight for existence in this civilized country. Their efforts are' often viewed with suspicion, due to the lack of knowledge of social service work. Often the public does not understand that, the rehabili tation of the family by scient
ific social service is piore beneficial than
spor^ic donations of money, food, fuel, clothing and shelter. The public welfare bureau performs excellent criifi'e preventive work, and should have the support of every police official. Where is there a po lice department that has not dealt with the man or woman who in desperation has stolen to keep the family -from starving, and further, " ’ OF' CHIEFS OFTQL TG-E' > 35
that has not dealt with the prdduct.of tfie other family which -starved dt "this time only the .unemployed, and not the playable (thl latter being institutional problems), the‘ not only advocate the establishment of municipal, state and federal 2^nlnvment bureaus but in .addition thereto, should cooperate with bufeJus to the^£ul?esb extent in finding-positions for the deserv- ino. and capable Friendly relations must be established with labor Suons as thdh- assistance is occasionally required in these! cases.
Pnrfherins the cause of'laws to provide funds for orphans, industrial PoSnsaHon fdr thFinjured, prevention of child, labor, eight-hour labor laws, probation laws, prohibition, venferal disease control and ShS legislative acts having for their purpose the prevention oi■ feel^ mindediwss insanity, criminality, prostitution, dependency, and t protection of the family^ is the bounden duty of every member of the P From investigations- conducted by Healy; Howers, Glueck, Stearns, Ball, Hoag and others, we are safe in assuming that at ,of our Criminals and prostitutes are persons suffering from menta peculiarities or abnormalities. This immediately suggests theneed ■ for psvchopathic clinics in juvenile detention homes, police depart Xts^and Stetei prisons in order that we may reclaim, those who may be helped and permanently confine the .defective or insane criminal, who will always be a menace to society if permitted to roam at The Zychopatlic clinics should be identi fied with a state Pjy'ho^^c
hospital which will not only serve as a clearing house for their activities^ but will also care for the incipient mental and nervous c^cs. The policem
an can render nd greater service to’ the community than to participate in the movement to establish psychopathic clinics and hos pitals in hismity and state. ' . , ,, ’
I may'say, just at this moment, before going further, that the Boston psychopathic hospital had -sent to them, year before last, oyer; 1500 Seted cases, of venereal, disease, and.out of that group just one fourth of them were found to he suffering froni syphilitic infecti^^ and this institution sent out their workers arid hrought in to■ th . institution,the other members of the fartiilies, and in those persons who'were found suffering, one-third «f the persons who were brpught in—coming willingly in most cases—were ajtu^^^y found to he infected, and not known to be infected. Now, ^e know that 25 per cent of all qf our insane are syphilitic. You will find the figures are absolute in every institution throughout the country.Every humane and intelligent official recommends, and should work, for, the establishing of industrial farms for prostitiites, drunkards, drug addicts, and criminals, and more modem institutions and a more sane treatment for the insane or defective criminal.
Any one who has given thought to the conditions in the average citv prison and county jail must know that they are schbols for crime,, and few men profit morally by their confinement in these institutions.
Some better method of dealing with minor'offenders should be devised.
Who, assuming that the official has the .proper training, is better qualified to solve this problem than the policeman .We have discussed briefly what can be done by the pdliceman in the city and st^e, let us next consider-the neighborhood, or in language more familiar to the police,, the beat. No single mdividua in the community has more opportunities to do good, solid, construc tive social service than the intelligent, sympathetic and trained po liceman. His intimate knowledge of the character of the people resid ing on his beat m^es it possible for him to acquaint immigrants liv- 46 | Page
34 ' INTERNA TIONAL ASSOCIAT ION
* 1
,now> 'and others^, think, specially prepared by the- Los Angeles Police Department, showing the things that .actually confronts the policeman, , showing the difficulties and th© temptations that beset him, showing after all ,that the policeman is not such a bad fellow.
You will ask what can the'policeman do, and how shall he,proceed to got the best results. 'My answer is,—'fight for everything which helps to decrease crime and dependency; and in this cpnnection a few suggestions are offered for* social service work in the community an,d state. And Ifet me add that these are merely a few, suggestions. There are m&ny, many possibilities. ,
In many- cities the schools are unable to accommodate all of the school children. This results in many of them being on the streets^ with the attendant evils. The policeman can do his< share to correct ' this condition by stating the facts to the voters whenever an oppor tunity is afforded.
It is also tfue that no city in this country gives sufficient thought to the physical-welfare of the children. Supervised recreation grounds are few in number, and we know from experience that much of our -juvenile problem may be traced to misdirected eneregy. Here again, the policeman in his rounds; and in contact with people generally, can be useful by calling attention to the community’s need for suffi cient play ground space for children to give expression to their ^ay tendencies.
“ The school and the church as community social centers have passed the experimental stage in several cities. ‘As agencies for the Ameri canization of the community’s foreign element the school and the church community social centers rank first. Social centers will dis place-the saloons, the dance halls and gambling dens and will serve to dispel or prevent other social factors of evil tendencies. Social center activities should be encouraged in every way.
^The child study departments in. our schools are of great" importance in detecting the. child of unusual abilities or disabilities, thus making it possible to give timely physical, mental and' moral -direction to the potentially dependent or delinquent child, as well as-to give-whole some encouragement and special direction to the child of more than average ability. The data which the child study department is able to furnish will be of immense value to the teachers in pur schools in training our children' toward better citizenship.
Free clinics and dispensaries are ^invaluable in the community, but frequently are handicapped by lack of fnuds. Statistics are not want ing of cases of delinquency directly attributable to physical abnormal ities, such as defective visiort, defective hearing, defective teeth, - adenoids, and numerous oth6r pathological conditions. Poor people may bd unable to employ the services of a family physician to correct these defects, and if there are no well conducted 'clinics to which the child can be taken for diagnosis and treatment, there is always the possibility that the police may have to deal with the child as .a delin- quency_ problem.
Public welfare bureaus, like the clinics and dispensaries, actually have to fight for existence in this civilized country. Their efforts are' often viewed with suspicion, due to the lack of knowledge of social service work. Often the public does not understand that, the rehabili tation of the family by scient
ific social service is piore beneficial than
spor^ic donations of money, food, fuel, clothing and shelter. The public welfare bureau performs excellent criifi'e preventive work, and should have the support of every police official. Where is there a po lice department that has not dealt with the man or woman who in desperation has stolen to keep the family -from starving, and further, " ’ OF' CHIEFS OFTQL TG-E' > 35
that has not dealt with the prdduct.of tfie other family which -starved dt "this time only the .unemployed, and not the playable (thl latter being institutional problems), the‘ not only advocate the establishment of municipal, state and federal 2^nlnvment bureaus but in .addition thereto, should cooperate with bufeJus to the^£ul?esb extent in finding-positions for the deserv- ino. and capable Friendly relations must be established with labor Suons as thdh- assistance is occasionally required in these! cases.
Pnrfherins the cause of'laws to provide funds for orphans, industrial PoSnsaHon fdr thFinjured, prevention of child, labor, eight-hour labor laws, probation laws, prohibition, venferal disease control and ShS legislative acts having for their purpose the prevention oi■ feel^ mindediwss insanity, criminality, prostitution, dependency, and t protection of the family^ is the bounden duty of every member of the P From investigations- conducted by Healy; Howers, Glueck, Stearns, Ball, Hoag and others, we are safe in assuming that at ,of our Criminals and prostitutes are persons suffering from menta peculiarities or abnormalities. This immediately suggests theneed ■ for psvchopathic clinics in juvenile detention homes, police depart Xts^and Stetei prisons in order that we may reclaim, those who may be helped and permanently confine the .defective or insane criminal, who will always be a menace to society if permitted to roam at The Zychopatlic clinics should be identi fied with a state Pjy'ho^^c
hospital which will not only serve as a clearing house for their activities^ but will also care for the incipient mental and nervous c^cs. The policem
an can render nd greater service to’ the community than to participate in the movement to establish psychopathic clinics and hos pitals in hismity and state. ' . , ,, ’
I may'say, just at this moment, before going further, that the Boston psychopathic hospital had -sent to them, year before last, oyer; 1500 Seted cases, of venereal, disease, and.out of that group just one fourth of them were found to he suffering froni syphilitic infecti^^ and this institution sent out their workers arid hrought in to■ th . institution,the other members of the fartiilies, and in those persons who'were found suffering, one-third «f the persons who were brpught in—coming willingly in most cases—were ajtu^^^y found to he infected, and not known to be infected. Now, ^e know that 25 per cent of all qf our insane are syphilitic. You will find the figures are absolute in every institution throughout the country.Every humane and intelligent official recommends, and should work, for, the establishing of industrial farms for prostitiites, drunkards, drug addicts, and criminals, and more modem institutions and a more sane treatment for the insane or defective criminal.
Any one who has given thought to the conditions in the average citv prison and county jail must know that they are schbols for crime,, and few men profit morally by their confinement in these institutions.
Some better method of dealing with minor'offenders should be devised.
Who, assuming that the official has the .proper training, is better qualified to solve this problem than the policeman .We have discussed briefly what can be done by the pdliceman in the city and st^e, let us next consider-the neighborhood, or in language more familiar to the police,, the beat. No single mdividua in the community has more opportunities to do good, solid, construc tive social service than the intelligent, sympathetic and trained po liceman. His intimate knowledge of the character of the people resid ing on his beat m^es it possible for him to acquaint immigrants liv- 47 | Page
36 international association
ing therein with the laws of this country, protect* them from pretty political and business grafters, as well as from other unscrupulous per sons, and help them to become decent,, law-abiding, citizens.
By close co-operation with schools and public welfare agencies, he 'will'soon learn who the potential delinquents and dependents are, and can' do niuch to assist in preventing them from becoming social fail ures. Boy gangs may be transformed into juvenile police and taught to be friendly helpers, or they may be helped to* join boy scouts- or similar boys’ organizations, and through these agencies become help- ,ful members of the community.Wayward girls may be saved from taking the final plungg into a life of evil, and many homes saved front disgrace and sadness, by the kindly counsel of the policem
an. Sick and. poor may be directed to
the established places for their relief. These cases should be carefully followed up and nothing left undone which would be of assistance in their rehabilitation.
Bolice efficiency should be measured by the amount of'crime, poverty and sickness which is prevented on the- beat, and not by* the number of arrests made by the officer. (ApplauSe.)In his daily contact with cases of delinquency the policeman has unlimited opportunities to demonstrate his ability as a social* worker and public benefactot. The few cases cited below illustrate what may be done if policemen are properly trained.
Now, let me say to you that the men who took care of these cases, the men who followed up the cases that I am going ’ to mention, are the old-time policemen that you and everybody here knows, men who have been trained’, but they were the old-type, the old fellow who believed that the way to suppress crime was to kncok them* down and 'bring-them in. . '
Annie,—aged 14, stole five dollars from the purse of a felfow em ployee who reported the theft to the police. The officer detailed dis covered that Annie had been systematically pilfering money and ar ticles from other employees’. He learned, too, that' these thefts began shortly after she had been engaged by the firm. During the examina tion the girl gave as her reason for taking money, “I' just wanted to Iqok nice, like the other girls.” The officer visited-the home and found that’her family were lining in an unclean and poorly furnished three- room house. Because the father- earned but little money it was im-, possible* to provide sufficient wholesome fo6d for the family. The mother was tubercular, and the* father an unstable and nervous fellow.
Two .sisters died in infancy. One sister novr ten years of age was suffering 'from heart- trouble, and one eight year old brother was physically weak. Annie’s' school "teacher said that sh'e was an ordinary pupil' until she reached the fifth grade; at the age of thirteen she left the school, at* which time she was doing poor work in the sixth grade. She-was taken to the psychopathic clinic, where 'it was found that she* was somewhat retafded mentally. It was the opinion of 'the medico-psychologist'that' adenoids Unit enlarged tonsils might- be re sponsible- fdr her defect. Accordih-gly- the consent of the mother and child was secured and'-an appointment made Vrith the* specialist at'the public clinic to perform the required operations’. A' change in en vironment and employment was also^ recommended by the'mcdico- psychologist, and’ a-position was obtained for Annie in' a respectable family. The-resf of the family are receiving medical aid at the dis pensary and'some financial help through a public'welfare bureau.
Harry;—hged thirteen; was arrested for burglary, and turned over to his parents fOt attention and -correction?. Later this boy entered not -Idss than twenty stores during the night hours, and took money from OF -CHIEFS OF POLICE 37
the-cash registers. His family history wasigood, no evidence pf any thing serious on either 'side. .Two sisters, siqcteen and eighteen, res pectively, were apparently normal girls. From the family physician and parents it was learned that Harry ‘Was an ordinary boy physically.
He had had measles, mumps and whooping cough when a little fellow, but' had never suffered any severe ills. This .child was also. taken to the-psychopathci clinic where it was learned that he was two years above his age. His parents accepted the suggestion made'by the medico-psycholQgjst and sent the bby to a relative'in the country.
Tt “algo arranged at the same time -to -have him 'advanced )two grades in his school work. From the last report received fcpn^^errnng this boy he is makipg good, absolutely, and without the advantage of the psychopathic clinic, plus intelligent'handling of the case by the policeman'he would/have been .in a reform school learning.to be a.real crook.
John Hoe—age fifty eight years, high school teacher and inventor, •was arranged on a charge .of burglary. From the investigation con ducted by the officers, it was learned that his previous reputation for honesty in'the community was excellent. Some years-prior to His ar- ' rest the prisoner suffered a nervous collapse and quit teaching 'for two-or three years. 'During this .period he conducted a curio store in a neighboring town; there was* no,patronage, and he was obliged to close the doors of his place of business. He was heavily in debt and again -took .up teaching as a profession;. His creditors crowded him for money and he eventually fell into the. hands of-some loan sharks.
At this time he was also busily engaged in -perfecting an invention which would assist in aerial navigation. Between teaching and work •on his-invention he was considerably overworked. From the general appearance and conduct .of .Doe at the time of his arrest the investigat ing officer came to the conclusion that he was a medical problem, despite the fact that he answered questions intelligently, and seeming ly -was possessed of all of his faculties. The medical examiner report bed that the prisoner was a neurasthenic -with morbid impulses; ,the result .of over-work and financial worries. He was turned over to his family for care and treatment, and subsequently confined in a private sanitarium where he remained for a year or more. Through a few friends who were interested in the case, sufficient money was secured to tide the family over the difficult period immediately following ’his arrest.. John D'oehas recovered sufficiently to return to the commun ity where he has again firmly established himself, .and is regarded as one of our. best citizens.
'Now, I might go on and cite to you cases indefinitely. .1 am full qf them. But it is enough to show you What may be done by the policeman.
Regardless of the policeman’s efforts to contribute to social and" ecouomid betterment in the manner described above, we cannot close our eyes to the-fact that crime •will al-Ways be with us. Much can-be done to further reduce the evil, providing we raise the educational, and intellectual standard of our police departments, elevate the position of the policeman to that of a profession, eliminate politics entirely from the force, and secure the people’s confidence, sympathy, respect and co-operation. '
Policemen should jealously guard the reputation of their profession, and establish a code of ethics. Any and every member.-of the force who violates the pro-visions of the code should be vigorously prose cuted -and expelled from the ranks. Policemens’ lives -must be dom inated by the highest ideals if they hope to establish themselves in the?affections of the people, and win for the profession such an exalted 48 | Page
36 international association
ing therein with the laws of this country, protect* them from pretty political and business grafters, as well as from other unscrupulous per sons, and help them to become decent,, law-abiding, citizens.
By close co-operation with schools and public welfare agencies, he 'will'soon learn who the potential delinquents and dependents are, and can' do niuch to assist in preventing them from becoming social fail ures. Boy gangs may be transformed into juvenile police and taught to be friendly helpers, or they may be helped to* join boy scouts- or similar boys’ organizations, and through these agencies become help- ,ful members of the community.Wayward girls may be saved from taking the final plungg into a life of evil, and many homes saved front disgrace and sadness, by the kindly counsel of the policem
an. Sick and. poor may be directed to
the established places for their relief. These cases should be carefully followed up and nothing left undone which would be of assistance in their rehabilitation.
Bolice efficiency should be measured by the amount of'crime, poverty and sickness which is prevented on the- beat, and not by* the number of arrests made by the officer. (ApplauSe.)In his daily contact with cases of delinquency the policeman has unlimited opportunities to demonstrate his ability as a social* worker and public benefactot. The few cases cited below illustrate what may be done if policemen are properly trained.
Now, let me say to you that the men who took care of these cases, the men who followed up the cases that I am going ’ to mention, are the old-time policemen that you and everybody here knows, men who have been trained’, but they were the old-type, the old fellow who believed that the way to suppress crime was to kncok them* down and 'bring-them in. . '
Annie,—aged 14, stole five dollars from the purse of a felfow em ployee who reported the theft to the police. The officer detailed dis covered that Annie had been systematically pilfering money and ar ticles from other employees’. He learned, too, that' these thefts began shortly after she had been engaged by the firm. During the examina tion the girl gave as her reason for taking money, “I' just wanted to Iqok nice, like the other girls.” The officer visited-the home and found that’her family were lining in an unclean and poorly furnished three- room house. Because the father- earned but little money it was im-, possible* to provide sufficient wholesome fo6d for the family. The mother was tubercular, and the* father an unstable and nervous fellow.
Two .sisters died in infancy. One sister novr ten years of age was suffering 'from heart- trouble, and one eight year old brother was physically weak. Annie’s' school "teacher said that sh'e was an ordinary pupil' until she reached the fifth grade; at the age of thirteen she left the school, at* which time she was doing poor work in the sixth grade. She-was taken to the psychopathic clinic, where 'it was found that she* was somewhat retafded mentally. It was the opinion of 'the medico-psychologist'that' adenoids Unit enlarged tonsils might- be re sponsible- fdr her defect. Accordih-gly- the consent of the mother and child was secured and'-an appointment made Vrith the* specialist at'the public clinic to perform the required operations’. A' change in en vironment and employment was also^ recommended by the'mcdico- psychologist, and’ a-position was obtained for Annie in' a respectable family. The-resf of the family are receiving medical aid at the dis pensary and'some financial help through a public'welfare bureau.
Harry;—hged thirteen; was arrested for burglary, and turned over to his parents fOt attention and -correction?. Later this boy entered not -Idss than twenty stores during the night hours, and took money from OF -CHIEFS OF POLICE 37
the-cash registers. His family history wasigood, no evidence pf any thing serious on either 'side. .Two sisters, siqcteen and eighteen, res pectively, were apparently normal girls. From the family physician and parents it was learned that Harry ‘Was an ordinary boy physically.
He had had measles, mumps and whooping cough when a little fellow, but' had never suffered any severe ills. This .child was also. taken to the-psychopathci clinic where it was learned that he was two years above his age. His parents accepted the suggestion made'by the medico-psycholQgjst and sent the bby to a relative'in the country.
Tt “algo arranged at the same time -to -have him 'advanced )two grades in his school work. From the last report received fcpn^^errnng this boy he is makipg good, absolutely, and without the advantage of the psychopathic clinic, plus intelligent'handling of the case by the policeman'he would/have been .in a reform school learning.to be a.real crook.
John Hoe—age fifty eight years, high school teacher and inventor, •was arranged on a charge .of burglary. From the investigation con ducted by the officers, it was learned that his previous reputation for honesty in'the community was excellent. Some years-prior to His ar- ' rest the prisoner suffered a nervous collapse and quit teaching 'for two-or three years. 'During this .period he conducted a curio store in a neighboring town; there was* no,patronage, and he was obliged to close the doors of his place of business. He was heavily in debt and again -took .up teaching as a profession;. His creditors crowded him for money and he eventually fell into the. hands of-some loan sharks.
At this time he was also busily engaged in -perfecting an invention which would assist in aerial navigation. Between teaching and work •on his-invention he was considerably overworked. From the general appearance and conduct .of .Doe at the time of his arrest the investigat ing officer came to the conclusion that he was a medical problem, despite the fact that he answered questions intelligently, and seeming ly -was possessed of all of his faculties. The medical examiner report bed that the prisoner was a neurasthenic -with morbid impulses; ,the result .of over-work and financial worries. He was turned over to his family for care and treatment, and subsequently confined in a private sanitarium where he remained for a year or more. Through a few friends who were interested in the case, sufficient money was secured to tide the family over the difficult period immediately following ’his arrest.. John D'oehas recovered sufficiently to return to the commun ity where he has again firmly established himself, .and is regarded as one of our. best citizens.
'Now, I might go on and cite to you cases indefinitely. .1 am full qf them. But it is enough to show you What may be done by the policeman.
Regardless of the policeman’s efforts to contribute to social and" ecouomid betterment in the manner described above, we cannot close our eyes to the-fact that crime •will al-Ways be with us. Much can-be done to further reduce the evil, providing we raise the educational, and intellectual standard of our police departments, elevate the position of the policeman to that of a profession, eliminate politics entirely from the force, and secure the people’s confidence, sympathy, respect and co-operation. '
Policemen should jealously guard the reputation of their profession, and establish a code of ethics. Any and every member.-of the force who violates the pro-visions of the code should be vigorously prose cuted -and expelled from the ranks. Policemens’ lives -must be dom inated by the highest ideals if they hope to establish themselves in the?affections of the people, and win for the profession such an exalted 49 | Page
INTERNATIO NAL ASSO CIAT ION
plane’ that positions on the force will be- sought for by the nation’s best 'manhood. Let us spbed the day when the appointment as a po liceman shhlb be considered the greatest honor that the municipality may bestow Upon one of its citizens. (Applause.)'
PRESIDENT LONG : .We have* a paper here prepared
by Marshal Robert D. Carter, of Baltimore^ Maryland. I
will ask Mr. Walters to read it.
(Mr. Walters here read the pa^ey of Marshal Carter, as
follows): , -
“THE POLICE AND BOLS HEVIS M.”
How many Bolshevists are in this country, and what .is the cult they are spreading? These two questions from a police viewpoint ure not ' easily answered, but as Chief of Police 'of a city' of 700,000 inhabi tants, I do know that Bolshevisni has not only got a grip in Balti more, but it is quite evident’ that the belief, is spreading, at a rapid degree and what is true about Baltimore is also true in relative regard to other big American cities, ,
In my'humble estimation the Bolsheviki, the I. W. W.’s and the out-and-out anarchists are birds of’ a feather. Scratch one and ypu will invariably find the other; The rise of Bolshevism, and its sub sequent effect, is not only alarming to Police Departments, but it is ' drawing the attention of' the* .entire social and industrial world.
There is nb living man who is' more keenly alive to the spread, of subsequent dangers of Bolshevism* than is President Wilson. He has been hailed by the workmen of the world, not only because of his keen sense of understanding* and farsightedness, but by his personal utter ances to the oppressed peoples of war-wrecked Europei
'Bolshevism- under many different titles has been preached for a hundred years, but its teachings have actually been realized in Russia and' other European States and behold the' carnage of theft, rapine and murder!' The old Government of Rfi'ssia has been wrecked, the Em- ^peror and his/family have been murdered^ and ill the wake of a criminal government has followed ah orgy of crime that' has 'known no limit; that has brought sorrow and misery to thousands of homes.
There are hundreds of»thousands of'Russians and other foreigners ill this country, who, have gone over to the spirit of Bolshevism. Suc cess of their prototypes in Europe has. fired them to a high pitch in their efforts to convert the working and middle classes of .America to Bolshevism. But, thank God, the genuine Apierican knows something about his country and its institutions. He loves his country and Amer icans of the true blub stripe deeply believe that no country is superior in any degree.
It is surprising, but it is a fact, that many -native-born Americans are-in a spirit of unrest, and they, too, are giving silent encouragement to the Bolshevists and other agitators who glory in the fact that they can address meetings and say almost anything they please with im punity, Shall hot spmething be done to curb the extreme fire-eatine Bolshevists? With the success of their- European brothers constantly before them the Bolshevists have become doubly bold, but thus far their inflama- tory speech-making has been, to a degree, harmless. We have idle Open Forum in Baltimore, where on Sunday prominent speakers ad dress the meeting on public questions. The program has included John Spargo, the noted Socialist and denouncer of Bolshevism, Theo dore Marburg former United States Minister to Belgium and I re- OP CHIEF S OP POLICE 89
gret to say, the notorious Max Eastman. * Eastman, was forrtierly editor of the “Masses” which was suppressed by the Government and he is now editor of the “Liberator” and is an out-and-out Bolshevist.
Eastman, of course, said some hot things- at his recent meeting at Baltimore about President Wilson and the Government, but Federal officials held -that what Eastmas was reported as saying was not pun ishable by Federal statute. The newspapers, and we have good ones in Baltimore, sharply and justly criticised the slush of Eastman,’who is declaimed the leader of the American Bolsheviki.
•The rise ahd ultimate danger of Bolshevism especially concerns American police officials when disorder is caused directly or indirectly through the ranting of some bushy-headed Bblshevist. Personally, we Americans whose fathers came here a hundred or two hundred years ago, and who have fought in. all wars to protect the nation and for the preservation of the Constitution feel a strong disposition to take the Bolshevists by force and bounce them out of America.
We would like to send them back to Russia, where they may drink ‘ at the,fountain of Bolshevism to their heart’s content. But we can’t do that. If there is any sending back to be done it will be efficiently accomplished by Uncle Sam,- and if I am corfectly informed quite, a few have been officially kicked out of America already, and are oh their way to their belbved Russia. We police officials can’t boot them out of the country and our next inclination is to break up their meet ing^ and stop their organizing.
' It is a kfiown fact that they are rapidly increasing and that they are spreading their doctrine of destruction on the minds of those who may develop into such a state of rebellion that they will, find an out let in a most serious act. It is too late to act after the boiAb has been thrown of after the torch has been applied. Therefore we must con stantly be on guai^d, keep ourselves informed as to their meetings, their movements, their numbers and most of their designs. - I may be somewhat bias in my idea, but I do believe that ilo Ameri can city should tolerate the propaganda that is being spread by Rus sian and other imigrants who are enrolled under the* banner of Bol shevism, and who at the same time have partaken of the freedom and blessings of America, and, her free institutions; and who by their acts of ingratitude are attempting to undermine our system of law, order and Government by the vote of freemen.
It seems to me that the olshevist idea of Government, is no Govern ment at all, and that such a thing as law should not be a barrier when the Bolshevist desires to appropriate the property of another for himself. A Police Department under no circumstances could afford to countenance such a condition and my faith in the American people strengthens my belief that, while Bolshevism may have some develop ment of national concern it will never gain the heights in this country that has marked its progress among illiterate peoples.
Publicity, ‘pitiless publicity’ is the cure for Bolshevism. The news paper can accomplish results which cannot be attained with, a night stick or a pistol. I think that in the long run it is unquestionably best fof the meetings to be permitted by the authorities. We are a humorous, rational people and we can see a joke iri most anything\ To attend a Bolshevist meeting and to watch the enjoyment of the Bolsheviki present when their leader yells about capitalists and the Government is certainly amusing. Such a meeting is -a safety valve for the Bolshevists and, of course, if gives the,police a good oppor tunity to observe them.
There are inside happenings, however, requiring especial police vig- 50 | Page
EXHIBIT 4
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EXHIBIT 5
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POLICE QUOTAS
SHAUN OSSEI-OWUSU*
The American public is slowly recognizing the criminal justice system’s deep defects. Mounting visual evidence of police brutality and social protests are gener- ating an appetite for something different. How to change this system is still an open question. People across the political spectrum vary in their conceptions of the pressing problems and how to solve them. Interestingly, there is one consequential and overlooked area of the criminal justice system where there is broad consensus:
police quotas.
Police quotas are formal and informal measures that require police officers to issue a particular number of citations or make a certain number of arrests. Although law enforcement leadership typically denies implementing quotas, courts, legislators, and officers have all confirmed the existence of this practice and linked it to odious criminal justice problems such as racial profiling, policing for profit, and over- criminalization. These problems have led legislators in many states to implement statutory prohibitions on quotas. Some of these statutes are of recent vintage and others are decades old. Nevertheless, these prohibitions and their attendant litiga- tion have escaped sustained analytical scrutiny. Legal scholars typically overlook police quotas, subsume them within other categories (e.g., broken windows policing), or give pat acknowledgment of their existence without explaining how they work.
This Article corrects these omissions and makes two arguments. First, it contends that police quotas are a significant but undertheorized feature of criminal law and procedure. Quotas make police rewards and sanctions significant features of pun- ishment in ways that can trump criminal offending and pervert due process princi- ples. Second, it argues that quota-based policing is a unique area where there is widespread agreement and possibilities for change. Liberals, libertarians, conserva- tives, police officers, police unions, and racial minorities have all criticized police quotas. These vastly different constituents have argued that quotas distort police discretion and produce unnecessary police-civilian interactions. This Article sup- plements these arguments with a novel descriptive, statutory, and jurisprudential account of police quotas in the United States. It offers a framework for under- standing the arguments for and objections to quotas, and proposes some normative strategies that could build on statutory and litigation successes. * Copyright © 2021 by Shaun Ossei-Owusu, Presidential Assistant Professor of Law, University of Pennsylvania Law School. This Article benefitted from feedback and conver- sations with Regina Austin, Mitch Berman, Stephanos Bibas, Nathaniel Bronstein, Guy- Uriel Charles, Cary Coglianese, Dan Epps, Kimberly Ferzan, Allison Hoffman, Paul Heaton, Leo Katz, Jonathan Klick, Eisha Jain, Elizabeth Joh, Ben Levin, Sandra Mayson, Sunita Patel, John Rappaport, Dan Richman, Paul Robinson, Stephen Rushin, Madeline Verniero, and the faculties of the Loyola University Chicago and Penn Law. Additional thanks to Madeline Verniero for excellent research and editorial support as well as the editors at the New York University Law Review . All errors are mine. 529
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INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 531 R I. T HE TEXTURE OF POLICE QUOTAS . . . . . . . . . . . . . . . . . . . . . 537 R A. The Definitional Landscape . . . . . . . . . . . . . . . . . . . . . . . . . 537 R
1. Formality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 537 R
2. Numerical Requirements . . . . . . . . . . . . . . . . . . . . . . . . 539 R
3. Law Enforcement Activity . . . . . . . . . . . . . . . . . . . . . . 540 R
4. Incentives/Adverse Employment Actions . . . . . . . . 541 R B. Statutory Landscape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 542 R
1. A Brief History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 543 R
2. Types of Quota Prohibitions . . . . . . . . . . . . . . . . . . . . 546 R II. P OLICE QUOTA LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551 R A. Police Speech and the Blue Code . . . . . . . . . . . . . . . . . . . 552 R B. Evidentiary Challenges for Civilians . . . . . . . . . . . . . . . . . 555 R C. Wins and Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 557 R D. Settlements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 562 R III. T HE THEORETICAL CONTOURS OF POLICE QUOTAS . . . . 567 R A. Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 568 R
1. Police Idleness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 568 R
2. Productivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 570 R
3. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 R
4. Revenue Generation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573 R B. Counterarguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575 R
1. The Allure of Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . 575 R
2. Arbitrariness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 578 R
3. Thin Evaluations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 579 R
4. Tradeoffs and Revenue-Based Defenses . . . . . . . . . 581 R C. Additional Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 582 R
1. Law Enforcement Objections . . . . . . . . . . . . . . . . . . . 582 R
2. Racial Vulnerability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 584 R
3. The General Significance of Quotas . . . . . . . . . . . . . 587 R IV. N ORMATIVE PATHS FORWARD . . . . . . . . . . . . . . . . . . . . . . . . . . 590 R A. A Prospective Research Program . . . . . . . . . . . . . . . . . . . . 591 R B. Investigative Agendas and Public Awareness . . . . . . . . 592 R C. Statutory Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 595 R CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 R APPENDIX A. S TATE STATUTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 598 R APPENDIX B. S TATE BILLS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603 R APPENDIX C. M ODEL STATUTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605 R 55 | Page
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INTRODUCTION
Before the Great Lockdown, criminal justice reformers across the ideological spectrum lamented “policing for profit.” 1 Commentators usually discuss this practice through the more sanitized sounding cate- gory of “legal financial obligations” (LFOs). 2 The economic implica- tions of the COVID-19 pandemic have put a spotlight on this type of predatory “cash register justice.”
3 As of this writing, the National
League of Cities has reported that 2,100 cities anticipate budget defi- cits.
4 Since hundreds of jurisdictions have relied on LFOs in the past, 5 and some have continued to do so during the crisis, 6 there is good cause for concern that LFOs will figure into an uncertain economic future. As Professor Brandon Garrett notes, “[a]fter the last financial crisis, most states ramped up on fines and fees,” transformed police 1 DICK M. C ARPENTER II, L ISA K NEPPER, A NGELA C. E RICKSON & J ENNIFER MCDONALD, INSTITUTE FOR JUSTICE, POLICING FOR PROFIT: THE ABUSE OF CIVIL ASSET FORFEITURE (2d ed. 2015); Roger Pilon, America’s Frightening “Policing for Profit” Nightmare, N AT’L I NT. (Jan. 23, 2015), https://nationalinterest.org/feature/americas- frightening-policing-profit-nightmare-12094; Emma Andersson & Susan Dunn, ‘Policing For Profit’ Is Alive and Well in South Carolina , ACLU (Feb. 12, 2019, 3:45 PM), https:// www.aclu.org/blog/criminal-law-reform/reforming-police/policing-profit-alive-and-well- south-carolina.
2 These LFOs include, but are not limited to: “usage fees” levied on defendants for their arrest, adjudication, incarceration, probation, and electronic monitoring; statutory fines that impose economic sanctions as punishments for crimes; and civil forfeiture laws that allow governments to confiscate money and property that are purportedly linked to crime.
3 See Laura I. Appleman, Nickel and Dimed into Incarceration: Cash Register Justice in the Criminal System , 57 B.C. L. R EV. 1483 (2016) (discussing the turning of the criminal justice system into a revenue center for state courts and corrections); see also Developments in the Law—Policing and Profit , 128 H ARV. L. R EV. 1706, 1723–46 (2015) (discussing usage fees, for-profit probation supervision and civil forfeiture); Bernadette Atuahene, Predatory Cities , 108 C ALIF. L. R EV. 107, 175–78 (2020) (discussing predatory fees various U.S. cities impose on residents through excessive fines, property forfeiture, and debtors’ prisons); Beth A. Colgan, Reviving the Excessive Fines Clause , 102 C ALIF. L.
REV. 277, 285–88 (2014) (describing various economic sanctions, including statutory fines, restitution, forfeitures, administrative court costs, incarceration costs, parole processing, and probation fees).
4 NAT’L LEAGUE OF CITIES & U.S. C ONF. OF MAYORS, THE ECONOMY AND CITIES:
WHAT AMERICA’S LOCAL LEADERS ARE SEEING (2020), https://www.usmayors.org/2020/ 04/14/the-economy-and-cities-what-americas-leaders-are-seeing. 5 See Mike Maciag, Addicted to Fines , G OVERNING ( S e p t . 2 0 1 9 ) , h t t p s : / / www.governing.com/topics/finance/gov-addicted-to-fines.html (finding through an extensive national analysis that fines fund “more than 10 percent of general fund revenues in nearly 600 U.S. jurisdictions”).
6 Brandon L. Garrett, Guest Post: Court Fines and Fees Shouldn’t Be Used to Recover Lost Revenue from Pandemic , W ASH. P OST (May 12, 2020, 7:00 AM), https:// www.washingtonpost.com/crime-law/2020/05/12/guest-post-court-fines-fees-shouldnt-be- used-recover-lost-revenue-pandemic (“[S]ome jurisdictions are still jailing people for unpaid debt, potentially exposing them to the novel coronavirus, which is exploding in our jails.”).
56 | Page
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officers into “revenue collectors,” and relied on “our poorest citizens to fund basic functions of government.” 7
Amidst the epidemiological crisis, the summer 2020 protests inspired a new, popular reexamination of policing. Rooted primarily in anger around anti-Black police violence, the protests productively altered public opinion and amplified longstanding issues tied to the political economy of policing.
8 Concerns about cities using the police
to generate municipal funds—which garnered attention after the Ferguson unrest six years ago
9—remain on the reform agenda. But
now there is closer scrutiny on the core functions of the police. Pop- ular opinion still hews to the belief that law enforcement serves a public safety function,
10 but visual evidence of racialized police kill-
ings is applying pressure to that assumption. These instances of state violence have forced the general public to grapple with the racially and financially exploitative nature of the criminal justice system.
Lurking beneath these concerns is a practice that has eluded legal scholars despite its reported prominence in criminal justice adminis- tration: police quotas.
Police quotas are formal and informal measures that require police officers to issue a particular number of citations or make a cer- tain number of arrests. They are sometimes formal and pre-specify a quantity.
11 Other times, they are informal and premised on an implied understanding that employment actions—promotion, compensation, or discipline—will be predicated on an officer’s ability to engage in a “sufficient” amount of enforcement activity.
12 Evaluative jargon such
7 Id.
8 See Nate Cohn & Kevin Quealy, How Public Opinion Has Moved on Black Lives Matter, N.Y. T IMES (June 10, 2020), https://www.nytimes.com/interactive/2020/06/10/ upshot/black-lives-matter-attitudes.html (noting leftward public opinion shift in support of race and criminal justice issues).
9 See Editorial, Policing for Profit Perverts Justice: Our View , USA T ODAY (Mar. 11, 2015, 7:01 PM), https://www.usatoday.com/story/opinion/2015/03/11/ferguson-mo-police- traffic-tickets-justice-department-editorials-debates/70175690 (bringing attention to “policing for profit” after Ferguson protests).
10 See Kendall Karson, 64% of Americans Oppose ‘Defund the Police’ Movement, Key Goals: Poll , ABC N EWS (June 12, 2020, 5:30 AM), https://abcnews.go.com/Politics/64- americans-oppose-defund-police-movement-key-goals/story?id=71202300 (describing how Americans oppose calls for defunding the police).
11 See, e.g. , M O. A NN. S TAT. § 304.125 (West, Westlaw through 2020 2d Reg. Sess.) (“No political subdivision or law enforcement agency shall have a policy requiring or encouraging an employee to issue a certain number of citations for traffic violations on a daily, weekly, monthly, quarterly, yearly, or other quota basis.”). 12 See, e.g. , TEX. TRANSP. CODE ANN. § 720.002(a)(1) (West, Westlaw through end of 2019 Reg. Sess.) (“A political subdivision or an agency of this state may not establish or maintain, formally or informally, a plan to evaluate, promote, compensate, or discipline a peace officer according to the officer’s issuance of a predetermined or specified number of any type or combination of types of traffic citations.”). 57 | Page
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as “benchmarks,”13 “productivity goals,” 14 and a host of other terms often obscure the operation of what are sheer police quotas. 15 Quotas may seem like an inapt object of inquiry considering cur- rent calls for radical change as opposed to incremental reforms. But, as this Article shows, quotas animate important criminal justice issues, chiefly racial profiling, civil rights violations, and police corruption. In Floyd v. City of New York , the federal decision that struck down the New York Police Department’s racially discriminatory stop-and-frisk policy, quotas were prominent themes.
16 The Department of Justice’s
report on Ferguson, which made the country aware of policing for profit, highlighted quota abolition in its Recommendation section. 17 Interestingly, more than twenty states have statutory prohibitions on police quotas.
18 Criminal defendants, civil rights plaintiffs, aggrieved police officers, and police unions have deployed these statutes in state and federal courts to challenge quotas and extract concessions from municipalities.
19 Nevertheless, police quotas, like criminal enforce-
ment mechanisms more generally, 20 have not received meaningful consideration by legal academics. 21 Instead, scholars typically engage quotas via the related but analytically distinct practice of broken win- dows policing or anecdotal accounts.
22 This lack of sustained attention
13 SERDAR KENAN GUL & P AUL E. O’C ONNELL, POLICE PERFORMANCE APPRAISALS:
A C OMPARATIVE P ERSPECTIVE 71 (2013) (acknowledging the existence of quotas and noting how some police departments use “benchmark targets for summonses and arrests”). 14 POLICE R EFORM O RG. P ROJECT, W ORKING T OWARDS A M ORE S AFE AND F AIR CITY: A BOLISHING Q UOTAS AND I NVOLVING C OMMUNITIES 2 ( 2 0 1 4 ) , h t t p s : / / www.policereformorganizingproject.org/wp-content/uploads/2012/09/Working_Towards_a_ More_Safe_and_Fair_City.pdf (“‘[P]roductivity goals’[sic] are a euphemism for a ‘quota system.’”).
15 See infra notes 32–36.
16 959 F. Supp. 2d 540, 596–602 (S.D.N.Y. 2013).
17 U.S. D EP’T OF J UST., C.R. D IV., I NVESTIGATION OF THE F ERGUSON P OLICE DEPARTMENT 9 1 ( 2 0 1 5 ) , h t t p s : / / w w w . j u s t i c e . g o v / s i t e s / d e f a u l t / f i l e s / o p a / p r e s s - r e l e a s e s / attachments/2015/03/04/ferguson_police_department_report.pdf [hereinafter Ferguson Report].
18 See infra Appendix A.
19 See infra Part II.
20 Alice Ristroph, The Thin Blue Line from Crime to Punishment , 108 J. C RIM. L. & CRIMINOLOGY 305 (2018) (describing how substantive criminal law scholarship rarely addresses issues of police conduct).
21 Some noteworthy exceptions that have given some attention to quotas include Nathaniel Bronstein, Note, Police Management and Quotas: Governance in the CompStat Era, 48 C OLUM. J.L. & S OC. P ROBS. 543 (2015) and Mary De Ming Fan, Disciplining Criminal Justice: The Peril Amid the Promise of Numbers , 26 Y ALE L. & P OL’Y R EV. 1 (2007).
22 On broken windows policing, see generally I SSA K OHLER -HAUSMANN , MISDEMEANORLAND: CRIMINAL COURTS AND SOCIAL CONTROL IN AN AGE OF BROKEN WINDOWS POLICING (2018) (investigating the consequences of broken windows policing in New York City). For anecdotal accounts, see C OREY PEGUES, ONCE A COP: THE STREET, 58 | Page
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persists despite scores of case law, 23 empirical evidence, 24 references in government reports,25 and annual settlements,26 that all point to the existence of police quotas across the country.
THE L AW, T WO W ORLDS, O NE M AN 146 (2016) (former NYPD officer describing the existence of quotas in the department); N ORM STAMPER, TO PROTECT AND SERVE: HOW TO FIX AMERICA’S POLICE 1–4 (2016) (former San Diego officer describing the existence of quotas in his department); John Marzulli, We Fabricated Drug Charges Against Innocent People to Meet Arrest Quotas, Former Detective Testifies , N.Y. D AILY N EWS (Oct. 13, 2011), https://www.nydailynews.com/news/crime/fabricated-drug-charges-innocent-people- meet-arrest-quotas-detective-testifies-article-1.963021 (officer admitting that the NYPD framed people to meet quota requirements).
23 See, e.g. , Becker-Ross v. State, 595 S.W.3d 261, 265, 269, 272 (Tex. App. 2020) (finding that there was sufficient evidence to show that the city administrator pressured the city marshal to write a certain number of traffic tickets within a specified period in violation of state prohibition on quotas); Policemen’s Benevolent Labor Comm. v. City of Sparta, No. 5-19-0039, 2019 WL 5457948, at *1, *7 (Ill. App. Ct. Oct. 22, 2019) (concluding that a police department’s practice of evaluating citations, traffic stop warnings, and extra- duty assignments violated state law prohibiting the implementation of quotas); Gerwer v.
Kelly, 980 N.Y.S.2d 275, 275 (Sup. Ct. 2013) (ruling against an officer who falsified thirty- seven fictious summonses in order to meet an alleged quota requirement); People v.
Schwartz, No. 282028, 2009 WL 30457, at *1, (Mich. Ct. App. Jan. 6, 2009) (noting that the defendant officer’s issuing of four undated speeding tickets to meet a quota would secure entitlement to overtime).
24 See JOHN M CLAUGHLIN, M CLAUGHLIN & A SSOC.’S, N EW Y ORK P ATROLMEN’S BENEVOLENT A SSOCIATION M EMBERSHIP S TUDY 53 (2016), https://www.nycpba.org/ media/19346/160315-pbasurvey.pdf (surveying approximately 6,000 members of New York City’s police union which found that 89% of respondents believed that NYPD supervisors imposed quotas); Jonathan Auerbach, Are New York City Drivers More Likely to Get a Ticket at the End of the Month? , S
IGNIFICANCE MAG., Aug. 2017, at 25 (using significance
testing to conclude that New York City drivers are more likely to receive a ticket at the end of the month, substantiating a long-held belief about the use of quotas); Scott W. Phillips, Police Discretion and Boredom: What Officers Do When There Is Nothing to Do , 45 J.
C
ONTEMP. ETHNOG. 580, 589 (2016) (qualitative study of a police department finding that officers noted that there was no formal quota but that they were expected write about ten tickets a month).
25 See Ferguson Report, supra note 17, at 11; U.S. D EP’T OF JUST., C.R. D IV. & U.S.
ATT’Y.’S O FF., D IST. OF N.J., I NVESTIGATION OF THE N EWARK P OLICE D EPARTMENT 21 (2014), https://www.justice.gov/sites/default/files/crt/legacy/2014/07/22/newark_findings_7- 22-14.pdf.
26 See Mike Sprague, Whittier to Pay $3 Million to Settle Police Ticket Quota Case , WHITTIER DAILY NEWS (Jan. 16, 2020, 2:11 PM), https://www.whittierdailynews.com/2020/ 01/15/whittier-to-pay-3-million-to-settle-police-ticket-quota-case; Matt Sledge, Gretna Police Agree to $70K Settlement in Ex-Cop’s Lawsuit Claiming Arrest Quotas , N EW ORLEANS A DVOC ., (June 3, 2019, 11:12 AM), https://www.nola.com/news/courts/ article_b1990837-e425-5c46-a3d8-4817a8b81367.html; Joshua Sharpe, DeKalb Still Denies Police ‘Quota’ System After Settling Suit for $150K , ATLANTA J.-CONST. (Sept. 27, 2018), https://www.ajc.com/news/crime—law/dekalb-still-denies-police-quota-system-after- settling-suit-for-150k/IuFHQg3pT4lnsVyPETZxkM; Peggy Wright, Mendham Twp. Cop’s ‘Ticket Quota’ Lawsuit Settles for $650K , M
ORRISTOWN D AILY R EC. (Dec. 5, 2017, 8:37
AM), https://www.dailyrecord.com/story/news/2017/12/04/mendham-twp-cops-ticket- quota-lawsuit-settles-650-k/918964001; Hailey Branson-Potts & Emily Alpert Reyes, City Will Pay LAPD Officer Nearly $1 Million to End Lawsuit over Ticket Quotas , L.A. T IMES
(Jan. 13, 2016, 11:05 PM), https://www.latimes.com/local/cityhall/la-me-0114-lapd- 59 | Page
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This Article makes two straightforward arguments. First, it con- tends that police quotas shape the enforcement of criminal laws by introducing a host of perverse incentives into an already insecure body of criminal procedure. This leads to the Article’s second claim. I argue that quota-based policing is a discrete area where there is wide- spread agreement about the problems with quota-based policing and possibilities for change. Police unions, often considered the source of our penal status quo, have argued that such requirements distort dis- cretion and generate unnecessary police-civilian contact. 27 Liberal,
conservative, and libertarian reformers have all lodged similar argu- ments and emphasized the ways quotas lead to violations of civil liberties.
28 The broad condemnation of quota-based policing makes this issue a particularly ripe place for reform, and an area that should be scrutinized by legal scholars and advocates. This Article inaugurates the conversation. It builds on the fragments of existing scholarship to offer a robust framework for understanding police quotas. It offers a novel descriptive and statutory account of police quotas and is the first piece of scholarship to describe the jurisprudential landscape of this practice.
Eliminating police quotas would be no panacea. However, it is an underappreciated area that has synergies with a larger constellation of penal change strategies. For abolitionists, addressing quotas could be an interim step toward a world with a smaller police imprint. 29 If
advocates achieve the goal of defunding the police, addressing quotas will become especially central, as smaller police forces may increas- settlement-20160114-story.html; J. David Goodman, Officer Who Disclosed Police Misconduct Settles Suit , N.Y. T IMES (Sept. 29, 2015), https://www.nytimes.com/2015/09/30/ nyregion/officer-who-disclosed-police-misconduct-settles-suit.html ($600,000); Dave Phillips, Former Novi Officer Gets $280,000 in Ticket Quota Lawsuit Settlement , OAKLAND PRESS (Apr. 17, 2014), https://www.theoaklandpress.com/news/nation-world-news/former- novi-officer-gets-280-000-in-ticket-quota-lawsuit-settlement/article_35e4db17-f817-5965- 98c9-cef2484f562b.html; Joel Rubin & Catherine Saillant, L.A. Approves $6-Million Settlement over Alleged Traffic Ticket Quotas , L.A. T IMES (Dec. 10, 2013, 12:00 AM), https://www.latimes.com/local/la-xpm-2013-dec-10-la-me-tickets-20131204-story.html. 27 See infra Section III.C.1.
28 See infra Section III.C.3.
29 See Dorothy E. Roberts, The Supreme Court, 2018 Term - Foreword: Abolition Constitutionalism, 133 H ARV. L. R EV. 1, 11, 114–18 (2019) (arguing that abolition movement activists can utilize the Reconstruction Amendments and “non-reformist reforms” to temporarily further their aims and ultimately build a society without prisons); Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. R EV. 405, 460 (2018)
(describing how the abolitionist approach focuses on reducing the greater social and fiscal footprint of police on society as opposed to efforts to improve the police and criminal law). 60 | Page
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ingly rely on quotas and technology to do more with less personnel. 30 This is precisely what has occurred in Camden, New Jersey, a city that is considered a model for police reform. 31 For law enforcement offi- cials who oppose quotas and a general public who believe the police have a role in our social order, attention to quotas could lead to more rigorous conversations about the function of police.
This Article proceeds in four Parts. Part I sketches the different ways police quotas take shape organizationally. It then offers a brief legislative history and analysis of anti-quota statutes.
Part II moves to the caselaw and describes how police officers, criminal defendants, and civil rights plaintiffs have challenged police quotas. This Part shows how doctrinal and evidentiary hurdles have hampered claims, but also details how some parties have succeeded in court or extracted settlements from municipalities.
Part III captures the definitional contours of quotas. First, I dis- cuss the defensibility of this practice. Though often unarticulated, police quotas give law enforcement leadership a way to monitor, mea- sure, and evaluate police activity while guarding against legitimate concerns about officers shirking their duties. Such evaluations are akin to the kinds of assessments that are standard in many work- places. This Part offers responses to these defenses. It also describes additional problems that police quotas pose for three groups: police officers forced to comply with these requirements; marginalized com- munities that are often the subjects of quota-satisfying officers; and a general public that can be deprived of efficiently used resources because of quotas.
Part IV takes a normative turn. This Part offers suggestions for how to raise public awareness of quota-based policing and generate coalition-building in states that do not already have quota prohibi- tions. This Part also provides suggestions on how to improve existing statutes.
The Conclusion offers thoughts on the urgency of this topic, and the Appendices offer a comprehensive list of quota bills and statutes. 30 Stephen Rushin & Roger Michalski, Police Funding, 72 FLA. L. REV. 277, 285 (2020) (suggesting that defunding police could lead to excessive ticketing and civil asset forfeiture); see Ingrid Burrington, What Amazon Taught the Cops, NATION (May 27, 2015), https://www.thenation.com/article/archive/what-amazon-taught-cops (discussing how algorithmic criminal justice assumes the credibility of the underlying crime data and noting how “countless scandals over quotas” in policing suggest that this is a huge assumption). 31 See Sidney Fussell, What Disbanding the Police Really Meant in Camden, New Jersey, WIRED (July 1, 2020, 3:03 PM), https://www.wired.com/story/disbanding-police-really- meant-camden (describing the increase in electronic surveillance after the city overhauled its police department); see infra notes 177–83 and accompanying text. 61 | Page
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I
THE TEXTURE OF POLICE QUOTAS
This Part maps the terrain of police quotas. Scholars and the media often discuss the existence of quotas, but the term itself is often undefined or poorly described. Section I.A offers a robust representa- tion of how quotas are administered. Section I.B details the statutory landscape of anti-quota laws and categorizes the twenty-one states that have enacted such legislation.
A. The Definitional Landscape
Quotas are formal and informal measures that require law enforcement to have a certain number of contacts with individuals or issue a certain number of citations or arrests. Because quotas have a pejorative connotation, law enforcement organizations use a range of alternative terms to accomplish the same work. These phrases—which are sometimes used earnestly and sometimes as subterfuge—include “benchmarks,”
32 “productivity goals,” 33 “targets,” 34 “performance
management,”35 and “objectives.” 36 To get a more granular under- standing of quotas, one might consider four features of this police practice: 1) the level of formality; 2) how they are quantified; 3) the law enforcement action that is required; and 4) the prospect of an adverse/favorable employment action.
1. Formality
Quotas range in their formality. Like any other policy, quotas can operate through formal channels (e.g., in writing or through official 32 GUL & O’C ONNELL, supra note 13.
33 See POLICE REFORM ORG. PROJECT, supra note 14; Robert Gangi, When Police Are Encouraged to Abuse, Not Protect , A LTERNET (Nov. 30, 2012), https://www.alternet.org/ 2012/11/when-police-are-encouraged-abuse-not-protect (“NYPD officials use the term ‘productivity goals’ as a poorly veiled euphemism for the Department’s quota system, as a thin cover for the pressure placed on street officers to make an expected number of arrests, or to issue a sufficient number of summonses.”).
34 Malcolm K. Sparrow, Measuring Performance in a Modern Police Organization , NEW P ERSPS. P OLICING B ULL., Mar. 2015, at 1, 18 (“[S]ome departments set targets for functional outputs, including enforcement activities such as arrests, stops, searches and traffic citations.”).
35 Jen Chung, Bloomberg Says Police Quotas Will Be Investigated , GOTHAMIST (Nov. 9, 2010, 5:45 PM), https://gothamist.com/news/bloomberg-says-police-quotas-will-be- investigated (quoting Mayor Bloomberg as saying “we don’t have quotas . . . but we certainly have performance management”).
36 TODD DOUGLAS, THE POLICE IN A FREE SOCIETY: SAFEGUARDING RIGHTS WHILE ENFORCING THE LAW 71 (2017) (noting that many police agencies “have informal quotas:
precinct averages , benchmarks, performance goals , objectives, targets, and other euphemistic references to what is essentially a quota”). 62 | Page
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communication) or through informal mechanisms. A useful example of a formal quota can be found in Ridgetop, Tennessee. 37 The city of approximately 2,000 people disbanded its police department in 2019 after officers exposed an attempt by the mayor and vice mayor to impose a quota. Officers recorded both officials demanding that the department write 210 citations to help generate revenue for the city. 38 Another example is from Brooklyn, New York, where a New York Police Department (NYPD) official posted memos in a police sta- tionhouse detailing how many summonses cops were required to hand out.
39 One document outlined the specific number of tickets needed:
sixty cell phone, fifty seatbelts, sixty-five double park, forty bus stops, and twenty-five tints.
40 Another memo began, “[g]ood day we need
the following,” and proceeded to list various moving violations. 41 That document required that summonses be handed out at accident-prone locations and specified five intersections.
42 Quotas can also be informal and based on unwritten require- ments or implied understandings. 43 In North Brunswick, New Jersey, one veteran officer recounted how officers would receive four hours of overtime pay for every forty tickets written.
44 Though the police
department had no official policy, there was an “unwritten under- standing.”
45 Another law enforcement official described how officers would “go hunting” in Black and Latinx neighborhoods and compete to see who could issue the most tickets.
46 This kind of informality is
especially common in states that legally prohibit police quotas, since police brass want to avoid memorializing requirements in ways that 37 Zuri Davis, A Tennessee Police Department’s Last Officer Resigns over Ticket Quotas, R EASON (Nov. 6, 2019, 2:45 PM), https://reason.com/2019/11/06/a-tennessee- police-departments-last-officer-resigns-over-ticket-quotas/printer. 38 Id.
39 See Chung, supra note 35.
40 Id.
41 James Fanelli, Cops at Brooklyn’s Crime-Ridden 77th Precinct Told to Meet Quotas for Moving Violations, Memos Say , N.Y. D AILY N EWS (Nov. 8, 2010), https:// www.nydailynews.com/new-york/cops-brooklyn-crime-ridden-77th-precinct-told-meet- quotas-moving-violations-memos-article-1.452621.
42 Id.
43 See Rich Morin, Kim Parker, Renee Stepler & Andrew Mercer, Inside America’s Police Departments , P EW R SCH. C TR. (Jan. 11, 2017), https://www.pewsocialtrends.org/ 2017/01/11/inside-americas-police-departments (finding that about a third of police officers say they are expected to meet a quota for arrests and tickets). 44 Sarah Wallace, NJ Police Targeted Black and Latino Neighborhoods to Fulfill Ticket Quotas, Cops Say , NBC N.Y. (Feb. 13, 2020, 8:08 PM), https://www.nbcnewyork.com/ investigations/nj-police-targeted-black-and-latino-neighborhoods-to-fulfill-ticket-quotas- cops-say.
45 Id.
46 Id.
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can be subject to discovery in future litigation or scrutinized by the media.
2. Numerical Requirements
Police quotas have quantitative dimensions. Sometimes they are numerically specific, as in the Brooklyn example mentioned above.
Other examples are instructive. Police documents from Dekalb County, Georgia, for instance, revealed that officials kept detailed sta- tistics on officer activities, with categories including “citation goal[s],” “total citations,” and “% to goal citations.”
47 A slogan for the police
department was, “[t]wo tickets a day keep the sergeants away. Five a day keep the lieutenants at bay.”
48 In Pennsylvania, two officers lied
about a DUI arrest and were caught on police dashcam video confer- ring about which one would get credit for the arrest because they both needed their “20 for the month.”
49 When criminal justice commenta-
tors discuss quotas, they usually focus on these numerically specific requirements.
But not all quotas are numerically precise. Sometimes the numer- ical dimension of a quota requirement is just a general guide and some quotas don’t specify any number at all. On the former, Denver, Colorado, is noteworthy. Colorado has no statutory prohibition on quotas. In 2016, the City, which generated $30 million annually from parking citations, inked a $50 million contract with a software com- pany to manage its parking enforcement.
50 Contract documents indi-
cated that predictive algorithms produced a “daily citation expectation” for agents.
51 The City insisted that the goal was not a
strict requirement but a “guide.”52 A legislative audit of West Virginia State Police, which identified an informal quota regime, illustrates the further vagueness of quotas that specify no number at all. The auditor’s survey included many responses from officers who indicated 47 Rhonda Cook, Arrest Quotas Led Dekalb Officer to Plant Drugs, Lawsuit Claims , ATLANTA J.-C ONST. (Nov. 28, 2016), https://www.ajc.com/news/local/arrest-quotas-led- dekalb-officer-plant-drugs-lawsuit-claims/5AMfRowntaQrZfQLsAhL6K. 48 Sharpe, supra note 26.
49 Peter Hall, Lawsuit Ends with Reminder to Pennsylvania State Troopers About Rule Against Ticket Quotas , M ORNING C ALL (June 26, 2018), https://www.mcall.com/news/ police/mc-nws-pa-state-police-dui-quota-settlement-20180626-story.html. 50 Jeremy Jojola, A Quota Behind Denver Parking Citations? , 9N EWS (Feb. 27, 2017, 11:12 PM), https://www.9news.com/article/news/local/investigations/a-quota-behind- denver-parking-citations/415777446.
51 Id.
52 Id.
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that no specific requirements existed, but that “numbers are strongly emphasized.”53
3. Law Enforcement Activity
Quotas require a particular kind of law enforcement activity. This is typically an arrest, citation, or ticket. In rare instances, they require contacts, warnings, or stops. Arrests, citations, and tickets are at the center of police quotas and constitute much of this Article’s discus- sion. Allegations and settlements surrounding arrest quotas have hounded the NYPD for years.
54 Citations and tickets were at the
center of the Department of Justice’s Ferguson Report. 55 Contacts or stops require more explanation.
Sometimes contacts substitute for arrests and citations. For example, in Arizona, a state without a statutory prohibition on quotas, a Tucson police chief was criticized for an overt one-ticket-a-day policy. After he changed it to a one-contact-a-day requirement, 56 Republicans led a push for an anti-quota bill. Though the Fraternal Order of Police supported the bill, Governor Doug Ducey ultimately vetoed it.
57 As a result, police in Arizona remain free to use contacts to fulfill quota requirements.
South Carolina, which does have a statutory prohibition, 58 high- lights the importance of contacts in police quotas. The Santee Police Department, situated along the well-traveled Interstate 95, came under scrutiny in 2019 after a memo demanding “a heavy increase” in traffic stops surfaced.
59 Lieutenant Riley Null authored the memo,
53 W. VA. LEGIS. AUDITOR, PERFORMANCE EVALUATION & RSCH. DIV., LEGISLATIVE PERFORMANCE R EVIEW–WEST V IRGINIA S TATE P OLICE: S URVEY C OMMENTS 46, 52, 54 (2008). The auditor asked: “Does the WVSP require each Trooper to issue a specified number of traffic citations or warning citations on a monthly basis?” Some of the responses included: “No specific #, but we have to show results. . . . No specific number is given, but ‘numbers’ are strongly emphasized. . . . There is no specific number but if you don’t have contacts they reprimand you. . . . No specific #, but get bad [employee performance appraisals] or verbally reprimand [sic] for not having a considerable amount of contacts.” Id. at 43–54.
54 See infra notes 194–95.
55 See Ferguson Report, supra note 17.
56 Howard Fischer, Arizona Bill Would Outlaw Police Traffic Ticket Quotas , TUSCON .COM ( J a n . 2 3 , 2 0 1 5 ) , h t t p s : / / t u c s o n . c o m / n e w s / l o c a l / c r i m e / a r i z o n a - b i l l - w o u l d - outlaw-police-traffic-ticket-quotas/article_d6bf8125-aec6-5e2e-ad0d-4ab16b181d4c.html. 57 Ducey argued that “in its current form, I worry that police chiefs and local entities will be prevented from objectively gauging performance in their departments—a concern for officers themselves, the public and overall public safety.” Matthew Hendley, Ducey Vetoes Ban on Police Ticket Quotas , P
HX. N EW T IMES (Apr. 2, 2015, 5:57 AM), https://
www.phoenixnewtimes.com/news/ducey-vetoes-ban-on-police-ticket-quotas-6661896. 58 See S.C. CODE ANN. § 23-1-245 (West, Westlaw through 2020 Sess.). 59 Michael Majchrowicz, Internal Memo Suggests SC Police Department Violated Law Banning Ticket Quotas , POST & C OURIER ( M a y 1 6 , 2 0 1 9 ) , h t t p s : / / 65 | Page
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sent it to patrol officers, and called for increased “contacts” with motorists.60 Null threatened, “if activity is not increased, you will be required to have your body cameras recording during your entire shift to try and determine what activity is consuming your time.” 61 Because
the South Carolina statute makes an exception for points of contact, 62 the memo is likely legal. This is why it is important to offer the defini- tional landscape of quotas before delving into the statutory prohibi- tions: many of the statutes that prohibit quotas do not cover the full range of police activity that could be considered a quota.
4. Incentives/Adverse Employment Actions
Incentives and adverse employment decisions loom in the back- ground of police quotas. Police departments have offered overtime, barbeque, pizza, gift cards, car wash coupons, and trophies to officers who meet quotas.
63 Failure to meet quotas can result in adverse
employment actions, including denial of days off, transfers, undesir- able assignments, and, of course, termination.
64 Police leadership can
communicate the threat of an adverse employment action to an officer in an attempt to make them comply with a quota. In the cash-strapped city of Gretna, Louisiana, situated across the Mississippi River from New Orleans, threats of adverse employment decisions were rampant.
In a recorded conversation with a patrolman, Lieutenant J.R. Rogers www.postandcourier.com/news/internal-memo-suggests-sc-police-department-violated- law-banning-ticket-quotas/article_aa02a4d6-77f2-11e9-8a32-b75a8475adde.html. 60 Id.
61 Id.
62 See § 23-1-245 (defining “points of contact” as a “law enforcement officer’s interaction with citizens and businesses within their jurisdictions and the law enforcement officer’s involvement in community-oriented initiatives” and allowing for evaluations based on this category).
63 Randy Travis, Douglasville Cops Offered BBQ if They Wrote Enough Traffic Tickets, FOX 5 A TLANTA (Mar. 10, 2020), https://www.fox5atlanta.com/news/douglasville-cops- offered-bbq-if-they-wrote-enough-traffic-tickets (barbeque); Daniela Altimari & John Lender, Police Commissioner Says ‘Pizza Memo’ Was Not Ticket Quota , H
ARTFORD
COURANT (Apr. 2, 2012), https://www.courant.com/news/connecticut/hc-xpm-2012-04-02- hc-pizza-tickets-report-0403-20120402-story.html (pizza); Justin George, Metro Transit Police Held a Competition to Encourage Arrests and Other Enforcement , W ASH. P OST (Feb. 20, 2020, 7:02 PM), https://www.washingtonpost.com/local/trafficandcommuting/ metro-transit-police-held-a-competition-to-encourage-arrests-and-other-enforcement/ 2020/02/12/02146d84-4dd7-11ea-9b5c-eac5b16dafaa_story.html (gift cards); Debbie Dujanovic, Emails Reveal Incentives Behind Cottonwood Police Issuing Tickets , KSL B
ROAD. (Oct. 24, 2013, 11:01 PM), https://www.ksl.com/article/27376993/emails-reveal- incentives-behind-cottonwood-police-issuing-tickets (carwash coupons and gift cards); Jack Douglas Jr. and Jason Allen, One North Texas Officer Says Ticket Quotas Do Exist. . .And It May Be a Ticket to a Trophy , CBS DFW (May 20, 2013, 10:23 PM), https:// dfw.cbslocal.com/2013/05/20/one-north-texas-officer-says-ticket-quotas-do-existand-it-may- be-a-ticket-to-a-trophy (trophies and letters of appreciation). 64 Cook, supra note 47.
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insisted, “[s]omebody has got to go to jail every 12 hours,” and threatened termination if the subordinate failed to comply. 65 Another officer testified that officers were told the city would stop paying for their insurance and contribute less to their retirement fund if they did not increase their arrests and citations.
66 The tethering of quota com-
pliance to job security was so blatant that one officer gave a sergeant who was recently passed over for a promotion “a gift of knee pads, vaseline [sic], and ink pen refills—the implication being that the only way he’d be able to get that promotion was to either write up more of his patrolmen for not meeting the quota or perform sexual favors.” 67 Understanding these four features of quota-based policing—the level of formality, the nature of the numerical requirement, the enforcement activity demanded, and the potential employment actions—is important for a few reasons. First, the scholarly literature has yet to offer a robust description of quotas that captures the dif- ferent permutations of the practice. Second, statutory prohibitions fall short of capturing the full scope of police activities that constitute quotas, which partially explains why quotas still exist in places that have enacted rules proscribing the practice. Third, these categories highlight gray areas in a non-transparent culture of policing. The strongest version of a quota would be a memorialized demand that police arrest a specific amount of people or face termination. A less detectable iteration might involve an informal communication to an officer to “increase their activity” with no threat of adverse employ- ment outcome.
68 Such conduct would be permissible under some stat-
utes and prohibited in others. Therefore, having a definitional grasp of these features is integral to understanding the following discussion about statutory prohibitions.
B. Statutory Landscape
This subsection briefly describes the politics that animated some of the legislative prohibitions on quotas. Some of these statutes are of late-twentieth-century vintage and developed against the backdrop of police professionalization. These early anti-quota laws were driven by interests in police work conditions, public safety, and fair policing. 65 Michael Isaac Stein, Police Lawsuits Provide an Inside View of Cash Register Justice in Louisiana , S CALA WAG (Nov. 5, 2018), https://www.scalawagmagazine.org/2018/11/ louisiana-cash-register-justice.
66 Id.
67 Id.
68 See, e.g. , CRIME + P UNISHMENT (Hulu 2018) (describing a conversation in which an NYPD lieutenant tells an officer that he needs to “catch up with everybody” in terms of numbers of arrests).
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These issues, along with concerns about racial justice, have continued to inspire more recent statutes. After explaining this history, this sub- section categorizes the various anti-quota statutes.
1. A Brief History
The legislative history of quota prohibitions is scattered because, in many states, legislators passed these laws without fanfare. However, a close inspection can impose some coherence and highlight themes of public safety, police conditions, and police corruption. Noteworthy leg- islative activity surfaced in the 1970s. Black Democratic Assemblyman John Miller ushered California’s bill in 1975.
69 Miller, who has been
described as a “progressive independent in local politics,” was politi- cally shrewd and couched his support for quota bans in inclusive rhet- oric.
70 The Howard University-trained lawyer—whose district included the racially and socio-economically diverse cities of Oakland and Berkeley—voiced a simultaneous concern for police officers and for the public. Describing quotas as “unfair, undemocratic, and unjust,” Miller was troubled by the idea that failure to meet quotas could lead to an officer’s demotion.
71 At the same time, Miller expressed concern
about “the average California driver” who would be unbelieved by a “rubber stamp traffic court system which finds 90 percent of those cited guilty.”
72 Finally, Miller highlighted due process issues and pre- saged the problems the Department of Justice would find forty years later in Ferguson when he stated: “The spectacle of cities gaining rev- enue for the conviction of citizens, and judges creating revenue by making criminals out of those brought before them . . . goes against our historical concepts of justice and fair play.”
73 In many ways,
California’s statute was motivated by multi-constituent concerns that remain applicable today.
New York passed its bill in 1978, and though police and the public may have been beneficiaries, the statute was a response to outright police corruption.
74 The Commission to Investigate Alleged Police
69 See Measure to Outlaw CHP’s Ticket Quotas , BERKELEY GAZETTE, July 22, 1975, at 1 (describing Miller’s role in helping pass California’s anti-quota law). 70 David Mundstock, Chapter 10 – The June 1976 Campaign and the New Slate Politics , BERKELEY CITIZENS ACTION, https://berkeleycitizensaction.org/?page_id=397 (last visited Dec. 28, 2020).
71 See Measure to Outlaw CHP’s Ticket Quotas , supra note 69, at 1. 72 Id.
73 Id.; see Ferguson Report, supra note 17, at 2 (“This emphasis on revenue has compromised the institutional character of Ferguson’s police department, contributing to a pattern of unconstitutional policing, and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harm on members of the Ferguson community.”).
74 See Bronstein, supra note 21, at 544.
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Corruption, or the Knapp Commission (led by United States District Court Judge Percy Knapp), produced one of the earliest and most extensive insights into the use of quotas in modern urban policing. 75 The Commission found that “informal arrest quotas” were “an inducement to a particular kind of corruption,” most specifically, “the arrest of individuals not actually apprehended in the commission of the charged crime.”
76 Testimony to the Commission described “a pat-
tern of requiring a quota of four felony arrests per month.” 77 The informal policy led to a practice of “flaking,” which is when police plant drugs on suspects.
78 The longstanding, sexist practice of
arresting sex workers and not their procurers also featured promi- nently in New York’s quota-based culture. “Plainclothesmen assigned to prostitution details were faced with the necessity of producing a stipulated number of arrests a night and, in order to do so, often arrested persons they considered to be ‘obvious’ prostitutes, without obtaining sufficient legal evidence.”
79 Finally, the Commission unearthed widespread collusion between police and numbers runners, particularly in “ghetto neighborhoods” where investigators discovered “numerous bookmaking operations and some high-stakes, organized card and dice games.”
80 These opera-
tions were brazenly public and payoffs to police ensured that these activities would go unpunished, “except for token arrests made to give an appearance of activity.”
81 The report’s description, which reveals
the intricacy of corruption and its relationship to quotas, is worth quoting at length:
Most often, when plainclothesmen needed a token arrest to meet arrest quotas or to give the appearance of activity, they would tell the operator of a spot and arrange a time and place for the arrest.
The operator would then select someone to take the arrest, who was usually either one of his employees who had a relatively clean arrest record or an addict who was paid for his trouble. Whoever took the arrest would put a handful of bogus policy slips in his pocket and meet the plainclothesman at the designated time and place, where, often as not, he would get into their car without even waiting to be asked.
82 75 COMM’N TO I NVESTIGATE A LLEGATIONS OF P OLICE C ORRUPTION AND THE C ITY’S ANTI-CORRUPTION PROCEDURES, COMM’N REP. 28 (1972).
76 Id. at 28.
77 Id.
78 Id.
79 Id.
80 Id. at 71.
81 Id.
82 Id. at 83.
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Whereas work conditions and the unfair doling out of tickets helped generate the enactment of the California statute, in New York it was the excesses of police culture and corruption that necessitated statutory prohibitions on quotas. In the ensuing decades, many states would pass laws that drew on one or more of these rationales.
Concerns about the work environment of police inspired the enactment of a few statutes. Democratic State Representative Perry Bullard introduced Michigan’s statute in 1988 after speaking with police officers who described how the pressure to comply with quotas diminished their ability to fight crime.
83 During testimony for the bill,
Jack Brown, executive director of the Fraternal Order of Police, lamented, “One of the most disgusting things we have as police officers is these quotas.”
84 Wisconsin, led by Republican State
Assemblyman DuWayne Johnsrud, passed its bill more than a decade later in 1998.
85 Before the bill’s passage, Johnsrud said, “[a]ny time an officer has to work under a quota, he has to make decisions with a hammer hanging over his head.”
86 Reflecting on the bill fifteen years
after its passage, Johnsrud’s rationale was the same. He explained that the bill came at the wishes of the State Patrol Troopers Union, which was concerned that officers were writing tickets at the expense of other safety-related work.
87 In Utah, Republican State Senator
Howard Stephenson helped the state pass its bill in 2018. 88 Stephenson noted his opposition to police operating as revenue gener- ators and claimed, “I don’t believe policemen should be looking to meet a quota on bad behavior. What if there isn’t enough bad behavior? Do you just have to make it up?”
89 The various statutes,
passed in states spanning the east coast to the west coast, demonstrate the public safety-interested, police officer-protecting nature of quota prohibitions.
83 See Jim Mitzfield, Ticket Quotas Cost Undeserving Drivers: Police , S. B END T RIB., Sept. 1, 1987, at B2; MICH. COMP. LA WS ANN. § 257.750 (West, Westlaw through P.A. 2020, No. 256 of 2020 Reg. Sess.).
84 Mitzfield, supra note 83.
85 Police Banned from Using Speeding Ticket Quotas , J. TIMES (Mar. 25, 1998), https:// journaltimes.com/news/national/police-banned-from-using-speeding-ticket-quotas/ article_a6faa127-90da-566f-a702-d46300ecf88f.html.
86 Reid Magney, Officials Say Standards Are Needed for Police , LA CROSSE TRIBUNE, Jan. 8, 1998, at A6.
87 Adam Schrager, Legislators: State Patrol Policy Lists Quota, is ‘Against the Law ,’ CHANNEL3000 (Dec. 28, 2018, 1:32 AM), https://www.channel3000.com/legislators-state- patrol-policy-lists-quota-is-against-the-law.
88 See Ben Winslow, Utah Could Soon Ban Police Quotas in Traffic Stops, FOX 13 (Feb. 5, 2018, 11:58 PM), https://www.fox13now.com/2018/02/05/utah-could-soon-ban-police- quotas-in-traffic-stops.
89 Id.
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Racial controversy has also inspired some states’ prohibitions on police quotas. After the killing of Michael Brown exposed Ferguson’s police practices, then-state congressman and future Republican Attorney General Eric Schmitt shepherded Missouri’s legislation.
Schmitt said that he authored the bill to “ensure that our citizens wouldn’t simply be used as ATMs to fill municipal government cof- fers.”
90 The police killing of Walter Scott, an unarmed Black motorist, likely led to the enactment of South Carolina’s statute. After thirty- three-year-old officer Michael Slager stopped fifty-year-old Scott for a broken taillight, Scott fled, and Slager shot him in the back. 91 Slager
claimed that he struggled with Scott over his taser and shot him out of fear.
92 Video evidence taken by a bystander later revealed that Scott was seventeen feet away when the officer shot him and that Slager had dropped his taser near him in “an attempt to plant evidence and skew the investigation.”
93 Justin Bamberg, a civil rights attorney who
represented the Scott family and serves as a Democratic Representative in the South Carolina General Assembly, subse- quently authored the bill.
94 After Tennessee passed its quota bill in
June 2020, Democratic Representative Rick Staples noted that quotas lead to Black people being frisked by police officers, and said that the “legislation will limit unnecessary contact between the two.” 95 The
existence of bipartisan and multi-constituent opposition to quotas is apparent from the widespread enactment of these statutory prohibitions.
2. Types of Quota Prohibitions
This subsection details the different types of anti-quota laws. The varying types of legislation make straightforward generalizations 90 Missouri’s Attorney General Sues City of Marshfield for Illegal Traffic Ticket Quota Scheme, KY3 (Dec. 9, 2019, 4:06 PM), https://www.ky3.com/content/news/Missouris- attorney-general-sues-city-of-Marshfield-for-illegal-traffic-ticket-quota-scheme- 565986731.html.
91 See Alan Blinder, Michael Slager, Officer in Walter Scott Shooting, Gets 20-Year Sentence, N.Y. T IMES (Dec. 7, 2017), https://www.nytimes.com/2017/12/07/us/michael- slager-sentence-walter-scott.html.
92 Id.
93 Id.
94 Grace Beahm, Haley Signs Bill Banning Law Enforcement Ticket Quotas , P OST & COURIER (June 9, 2016), https://www.postandcourier.com/politics/haley-signs-bill-banning- law-enforcement-ticket-quotas/article_7449a3c5-b4ff-509f-b716-7bd7b72a38c7.html (reporting on Bamberg’s representation of the Scott family and his sponsorship of the bill). 95 Tyler Arnold, Criminal Penalties for Issuing Police Ticket Quotas Passes Tennessee House, C ENTER S QUARE (June 11, 2020), https://www.thecentersquare.com/tennessee/ criminal-penalties-for-issuing-police-ticket-quotas-passes-tennessee-house/article_eb5a2f34- ac0e-11ea-b5cc-6fd6b8293d42.html.
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tricky. Indeed, the difficulty of offering a general framework might help explain the scholarly gap on police quotas. Some of these laws are either poorly drafted or cover a small amount of activity. Consider two examples. Florida’s statute simply states: “a traffic enforcement agency may not establish a traffic citation quota.”
96 This prohibition
does not define what a quota is or whether it has to be numerically specific in order to fall under the scope of the statute. Such interpreta- tive tasks are left to courts, assuming that allegations of quotas get that far.
Utah’s statute, passed in 2018, is a bit more specific. It defines quotas as “any requirement or minimum standard regarding the number or percentage of citations or arrests.”
97 But this provision still
does not specify whether the prohibited “requirement” or “standard,” must be formal.
The shortcomings of Utah and Florida’s statutes are representa- tive of the many limitations of anti-quota laws. Most statutes only cover some aspects of quota-based policing, and each statute is dif- ferent. What one state considers an illegal quota, another state may find permissible. Most basically, anti-quota laws vary on how formal or numerically specific quotas must be to fall under the statute. All statutes prohibit departments from requiring officers to issue a certain amount of citations or traffic violations. Some laws go further and include arrests, while others cover precursory law enforcement activi- ties such as stops and warnings. Most focus on whether the failure to meet a quota leads to some kind of employment action.
Formality: As Figure 1 demonstrates, state statutes vary in their language and their characterization of quotas as formal and/or informal. “Direct” and “indirect” are also words used to capture for- mality. For example, Nebraska only prohibits law enforcement from “directly” requiring an officer to meet a quota.
98 Informal pressure
put on a police officer to improve their numbers is not covered.
Pennsylvania’s statutory language, by contrast, forbids any law enforcement agency from establishing or maintaining any policy “directly or indirectly.”
99 Other jurisdictions, like New Jersey, are
silent on which communicative mechanisms are forbidden and state that law enforcement may not “establish any quota for arrests or cita- 96 FLA. STAT. ANN. § 316.640 (West, Westlaw through Ch. 184 of 2020 2d Reg. Sess.). 97 UTAH CODE ANN. § 77-7-27 (West, Westlaw through 2020 6th Spec. Sess.) (emphasis added).
98 NEB. REV. STAT. ANN. § 48-235 (West, Westlaw through end of 2020 2d Reg. Sess.). 99 71 PA. STAT. AND CONS. STAT. ANN. § 2001 (West 2020). 72 | Page
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tions.”100 This might include direct or indirect quotas, or encapsulate only formal quotas. Since many of these statutes are under-litigated, the available language is crucial for parties seeking to bring a claim that an agency violated the prohibition.
F
IGURE 1. F ORMALITY AND QUOTA STATUTES
Silent
No language on level
of formality
(e.g., New Jersey)
Formality
Prohibits only direct
or formal impositions
of quotas
(e.g., Nebraska)
Informality
Prohibits
informal/indirect
quota requirements
and formal and direct
requirements
(e.g., Pennsylvania)
Quantification: Numerical requirements are also present in some state prohibitions. Michigan’s statute is typical in that it bars agencies from requiring a “predetermined or specified number of citations.” 101 Some states, like Florida, do not make any reference to numbers, which could simply mean that a number is implied in the definition of quota but could also leave room for the use of averages, which some departments use to circumvent quota prohibitions.
102
FIGURE 2. Q UANTIFICATION AND QUOTA STATUTES
Generic
(Prohibits implementation of
quotas; no statutory definition
of amount; e.g., Florida)
Numerically Specific
(Prohibits requiring a specific
average or number of
citations/violations or arrests;
e.g., New York)
Law Enforcement Activity: All statutes specify which law enforce- ment activities cannot be subject to a quota. Seventeen states prohibit 100 N.J. STAT. ANN. § 40A:14-181.2 (West, Westlaw through L.2020, c.136 and J.R. No. 2).
101 MICH. C OMP. L A WS A NN. § 257.750 (West, Westlaw through P.A. 2020, No. 256 of 2020 Reg. Sess.).
102 See Sparrow, supra note 34.
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quotas for citations and traffic violations. 103 Nine states include cita- tions, traffic violations, and arrests.104 Other states are overinclusive or underinclusive when it comes to activity outside of citations, traffic violations, and arrests. Two states, Wisconsin and Rhode Island, include warning notices and investigative stops, respectively. 105 These
states seem to recognize that warnings and stops can lead to the kind of law enforcement activity that quota legislation is designed to cover, and accordingly include these preludes into their statutory schemes.
Some jurisdictions take the opposite approach. Missouri excludes warnings from its statute,
106 whereas South Carolina and Illinois make
exceptions for “points of contact.” 107 In these three jurisdictions, such precursory activity does not fall under the state statute. All other states are silent on whether these kinds of law enforcement activities are covered by their statutes. Thus, read in whole, American statutes that prohibit quotas focus primarily on citations, traffic violations, and arrests, leaving significant room for penumbral pursuits that are related but do not fall into those specific law enforcement activities. 103 These states include Connecticut, Illinois, Florida, Maryland, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Wisconsin.
104 Arkansas, California, Louisiana, Maryland, New Jersey, New York, North Carolina, Rhode Island, and Utah all include citations, tickets, and arrests. 105 WIS. S TAT. A NN. § 349.025 (West, Westlaw through 2019 Act 186); 31 R.I. G EN.
LA WS ANN. § 31-27-25 (West, Westlaw through ch. 79 of 2020 2d Reg. Sess.). 106 M O. A NN. S TAT. § 304.125 (West, Westlaw through 2020 2d Reg. Sess.) (“This section shall not apply to the issuance of warning citations.”). 107 S.C. CODE ANN. § 23-1-245 (West, Westlaw through 2020 Sess.); 20 ILL. COMP. STAT.
ANN. 2610/24 (West, Westlaw through P.A. 101-651).
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FIGURE 3. L AW ENFORCEMENT ACTIVITY AND QUOTA STATUTES Least Expansive
Most Expansive
Citations/Violations; Contacts and
Warnings Specifically Excluded
(e.g., South Carolina)
Citations/Violations only
(e.g., Connecticut)
Citations/Violations;
Arrests (e.g., New Jersey)
Citations/Violations; Arrests; Warnings/
Stops Included (e.g., Wisconsin)
Employment Actions : A few states use specific language prohib- iting the use of quotas for incentives and adverse employment actions.
Texas, for example, prohibits the use of quotas to “evaluate , promote, compensate, or discipline” police officers. 108 Some states focus only on adverse employment actions. New York’s ban, which has been sub- ject to the most litigation, prohibits “a reassignment, a scheduling change, an adverse evaluation, a constructive dismissal, the denial of a promotion, or the denial of overtime, based in whole or in part on such employee’s failure to meet a quota.”
109 By specifying the range
of employment actions, these statutes supply potential plaintiffs (typi- cally police officers) with the statutory language to bring claims against departments that implement quotas. States like Arkansas, by contrast, are silent on this issue. One could interpret this silence to mean that employment action is impliedly forbidden by the statute or as an intentional omission by the legislature.
108 TEX. TRANSP. CODE ANN. § 720.002 (West, Westlaw through end of 2019 Reg. Sess.) (emphasis added).
109 N.Y. L AB. L AW § 215-a (McKinney, Westlaw through L.2019, ch. 758 and L.2020, chs. 1 to 387).
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