Agenda packet, first session — Berkeley City Council, September 30, 2025 (part 2 of 4)

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2180 Milvia Street, Berkeley, CA 94704 ● (510) 981-7170 ● [email protected] The table indicates that Berkeley's shared micromobility program has strong shared mobility use relative to its population, high demand for vehicles, and fleet efficiency comparable to Santa Monica and San Francisco. Berkeley demonstrates proportionally concentrated and consistent scooter use, ultimately indicating high demand and suggesting potential financial feasibility for increasing fees.

With the City’s considerable investment in daylighting intersections, there is a significant opportunity to leverage the available space and city funding to install new scooter racks or corrals. With additional revenue from scooter companies, the City could have more capacity to build creative infrastructure at these zones. In fact, the aforementioned study out of the University of Oregon explains that the near side of intersections are ideal locations for shared micromobility corrals.15 Corrals placed at the near side of intersections create physical barriers to prevent illegal car parking, avoid conflicts with metered or loading zones, reduce accidents, and activate previously unused space.

The goal of this referral is to provide the information, guidance, and flexibility to the City Manager, in partnership with our dedicated shared micromobility vendors, to identify the most feasible and effective avenue for maintaining a successful program that meets the needs of all Berkeley residents. Parking infrastructure that accommodates high use of these vehicles is a critical component of ensuring that success.

FISCAL IMPACTS OF RECOMMENDATION
The Public Works Department has been working with shared micromobility vendors to address the issue of improper parking. This referral is intended to provide clarified direction in those conversations. The Public Works Department will already be engaging in the process of raising other municipal fees as part of an annual process and is able to include this without much additional staff time.

ENVIRONMENTAL SUSTAINABILITY
No anticipated impacts.

CONTACT PERSON
Councilmember Cecilia Lunaparra, 510-981-7170
Sara Cerami, Chief of Staff

15 Urbanism Next, Dedicated Parking for Micromobility, by Calvin Thigpen, Nicholas Klein, and Anne Brown (Portland, OR: Urbanism Next, 2025), https://cdn.prod.website‑files.com/5d9f83b8b237fa6c07d5d69d/680ff7d0cc63c8bced753ec7_Dedicated%20Parking%20for%20Micromobility- compressed.pdf (accessed July 10, 2025).

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Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: https://berkeleyca.gov/

PUBLIC HEARING
September 30, 2025
To: Honorable Mayor and Members of the City Council
From: Paul Buddenhagen, City Manager
Submitted by: Jordan Klein, Director, Planning and Development Department Subject: Changes to the Planning and Development Fee Schedule

RECOMMENDATION
Conduct a public hearing and upon conclusion, adopt a Resolution amending Resolution No. 71,834-N.S. to make revisions to the Land Use Planning section of the Planning and Development Department fee schedule, effective November 1, 2025, to add new fees for Zoning reviews of Middle Housing projects and for arborist consultations when required.

FISCAL IMPACTS OF RECOMMENDATION
The creation of new fees for projects to be reviewed under Middle Housing zoning regulations, and for arborist consulting services on any project type, will generate funds to cover costs which the City incurs for these services. These fees are paid by project applicants, and deposited into the Permit Service Center Fund 621.

Proposed Middle Housing projects will require a new kind of ministerial review, as such applications had previously required discretionary Use Permits (UPs) and Administrative Use Permits (AUPs). UPs and AUPs require significantly more staff time and thus charge higher fee rates, while the new ministerial reviews are expected to be more streamlined, requiring a new fee which is commensurate to the staff time expended.

Staff propose a base fee rate of $2,000 for each Zoning Certificate for Middle Housing (ZCMH) review, derived from eight hours of staff work at the department’s $250/hour rate. In addition, staff propose a neighborhood noticing fee of $500 to cover City costs to inform nearby residents of such projects. This $500 fee is the same as the City charges for similar neighborhood noticing of ADU projects.

Arborist consulting services have been part of certain project reviews for years, but have never been separately enumerated in the fee schedule, which to date has only included a fee specific to “Oak Tree Review.” Staff propose to rename that fee line to encompass all arborist consulting services when required for any type of project, and to keep that fee rate at the base of $250 per hour of arborist time spent, one hour minimum.

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Changes to the Planning and Development Department Fee Schedule PUBLIC HEARING September 30, 2025

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CURRENT SITUATION AND ITS EFFECTS
Staff are proposing the new fees to be effective November 1, 2025, to help ensure that the costs of providing these services are covered by the fees charged. Please see Attachment 2 for the Land Use Planning section of the Planning and Development Department fee schedule with all proposed changes tracked, including the new Middle Housing and arborist services fees, as well as a number of administrative corrections with no effect on fee rates.

ZONING CERTIFICATES FOR MIDDLE HOUSING (ZCMH)
On June 26, 2025 the Berkeley City Council adopted the first reading of Ordinance 7,978-N.S., amending the Zoning Ordinance for the purposes of encouraging the development of Middle Housing project types in areas of the City previously zoned for low-density residential construction only. The term “Middle Housing” includes a number of development types, but is generally used to refer to small apartment buildings of eight or fewer units being allowed in Zoning districts which had previously been mostly limited to single-family homes and small apartments of four or fewer units. The Middle Housing changes also included provisions pertaining to residential additions and increased number of bedrooms within existing dwellings. The mechanism for encouraging such projects was to remove previous restrictions, and to instead allow Middle Housing projects to get Zoning approval through a ministerial review, so long as the projects meet objective Zoning standards.

Previously, if such a project was proposed at all, a costly, time-consuming process would ensue, requiring at least a Use Permit with Public Hearing (UP(PH)), and in many cases also requiring one or more AUPs to approve of other aspects of the project, all with no certainty of ultimate approval. Under the new Middle Housing rules, the City expects to receive more project applications, but with the review time for each taking substantially fewer hours than the previous discretionary approval process. To create a proper fee structure which recoups City costs, staff are proposing a base level fee of $2,000, which assumes eight hours of staff review time per project. This is more time than most ministerial Zoning Certificate reviews, which staff believe is justified by the complexities of ensuring that a multi-story building within a built-out urban landscape complies with all objective Zoning standards. Staff are also proposing a $500 fee for the noticing of proposed Middle Housing projects to nearby neighbors, in compliance with requirements adopted by the City Council.

Table 1 compares the fees which would be assessed on a Zoning application for an eight-unit, three-story apartment in a Residential Zoning District under the previous rules, versus the new ZCMH fee structure proposed once new Middle Housing regulations take effect November 1, 2025.

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Changes to the Planning and Development Department Fee Schedule PUBLIC HEARING September 30, 2025

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Table 1: Previous fees vs. ZCMH fees
Application Fee $500
UP(PH) Fee $5,500
UP(PH) Public Hearing fee $1,250
Records Management Fee $55
Community Planning Fee (15%) $1,096
UP(PH)—previously required for
multi-unit buildings within
Residential Zoning Districts
UP(PH) TOTAL $8,401
Application Fee $500
AUP Fee $500
Records Management Fee $55
Community Planning Fee (15%) $158
Under
old
rules
Additional AUP (each)—
previously one or more often also
required, in addition to UP(PH), for
multi-unit buildings within
Residential Zoning Districts Each Additional AUP: $1,213 ZCMH Fee $2,000
Community Planning Fee (15%) $300
ZCMH Neighborhood Noticing $500
Under
new
rules
Zoning Certificate for Middle
Housing (ZCMH): Proposed fees
under Middle Housing rules which
become effective 11/1/25
TOTAL $2,800
As with other fees in the Land Use section of the fee schedule that derive from multiples of the hourly staff time rate, when a project’s complexity requires more staff review time than the base eight hours the fee provides, the City will invoice the applicant for the costs of that additional time prior to approval of the project. After the first year that Middle Housing regulations are in effect, staff will review the time spent on all such projects to determine whether eight hours is the proper fee rate, or whether the fee needs to be adjusted.

ARBORIST REVIEW FEE
Many types of development project applications require review by the City’s consulting arborist. This can be when the property includes a protected coast live oak tree, or when a project proposes to remove and replace existing street trees, or when a project has other Zoning conditions which require preservation or replacement of specific trees on the subject lot. In the past, the City has not specifically enumerated arborist costs for the customer to pay, instead including such costs generically along with other project review consultations. Staff believe that the City will be better served by collecting fees and tracking arborist review expenses separately, for the sake of complete cost recovery, as well as for improved tracking of contract expenditures. The existing fee

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Changes to the Planning and Development Department Fee Schedule PUBLIC HEARING September 30, 2025

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schedule has a line which is specific to Oak Tree Review only, which staff are now proposing to rename more generally “Arborist Review services.” The fee itself will not change from the current $250 per hour, with a minimum charge one hour, but by applying the fee to the more complete range of required arborist reviews, the City will be better able to recover its costs.

BACKGROUND
The costs of most of the work of the Planning and Development Department are covered through fees collected for services and deposited into dedicated enterprise funds, largely to the Permit Service Center Fund (621), which takes in all Building permit and Zoning permit fees. Many fees the Planning and Development Department collects are based on multiples of the hourly staff time rate, which is $250 per hour for staff across all divisions of the department. That hourly rate was updated May 21, 2024 (Resolution No. 71,357-N.S); no further changes to this rate are proposed here.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Infill development as encouraged by the City’s Middle Housing Zoning changes is considered a best environmental practice for accommodating growing populations within already built-out urban centers, proximate to transit and job centers, without requiring the carbon-intensive automobile travel. Arborist reviews of development projects help to protect the existing urban forest and can promote planting and care for new trees.

RATIONALE FOR RECOMMENDATION
The City is expecting an increase in applications for Middle Housing projects when new regulations take effect. Adoption of the new Middle Housing fees will allow the City to cover the costs it will incur to review such applications, while being set at a rate substantially lower than the fees such projects would have had to pay in the past. If fees are do not keep pace with the costs which the City incurs, it has the effect of subsidizing current City service delivery through other means. The new fees proposed in this action would properly charge current project applicants for the Zoning review costs of their projects, without reducing the timeliness or efficiency of the services provided.

ALTERNATIVE ACTIONS CONSIDERED
None.

CONTACT PERSONS
Jordan Klein, Director, Planning and Development Department, (510) 981-7534 Jim Bondi, Associate Management Analyst, Planning and Development Department, (510) 981-7428

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Changes to the Planning and Development Department Fee Schedule PUBLIC HEARING September 30, 2025
Attachments:
1: Resolution
Exhibit A: Land Use section of Planning and Development Fee Schedule, clean 2: Proposed New Planning Fee schedule, changes tracked
3: Public Hearing Notice

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RESOLUTION NO. ##,###-N.S.

FEES: REVISIONS TO THE LAND USE PLANNING SECTION OF THE PLANNING

AND DEVELOPMENT DEPARTMENT FEE SCHEDULE
WHEREAS, on May 16, 2017, Resolution No. 67,985-N.S. established fees for development-related services provided by the Planning and Development Department; and
WHEREAS, certain specific fee rates were amended on May 28, 2019 in Resolution No. 68,940-N.S., on July 27, 2021 in Resolution No. 69,989-N.S., on May 24, 2022 in Resolution No., 70,371-N.S., and on November 29, 2022 in Resolution No. 70,621-N.S.; and
WHEREAS, certain fees charged by the Public Works Department, Engineering and Transportation Divisions, were amended on April 18, 2006 in Resolution 63,262-N.S., on June 1, 2010 in Resolution 64,918-N.S., on May 15, 2012 in Resolution 65,721-N.S., and on December 1, 2020 in Resolution 69,640-N.S.; and
WHEREAS, the hourly base rate for staff services across all Planning and Development Department divisions, plus numerous other non-hourly fees, were comprehensively updated, and the entire schedule was re-adopted May 21, 2024 in Resolution No. 71,357- N.S.; and
WHEREAS, fees in the Planning and Development Department fee schedule were most recently updated in Resolution No. 71,834-N.S., adopted by the Berkeley City Council on June 17, 2025; and
WHEREAS, on June 26, 2025 the Berkeley City Council adopted the first reading of Ordinance 7,978-N.S., creating new Zoning regulations for “Middle Housing” projects, which once becoming effective on November 1, 2025 will require a new fee structure to ensure that the City can recoup the costs it will expend during the Zoning review of applications for such projects, and the neighborhood noticing thereof; and WHEREAS, many project application types require review by the City’s on-call arborist, on lots which contain protected coast live oak trees, or on projects which propose to replace or relocate existing City street trees, or in other instances when conditions placed on proposed developments require maintenance or replacement of existing tree, and the City currently lacks an explicit fee structure for arborist services to allow the City to recover the costs it expends on such reviews; and
WHEREAS, the Council of the City of Berkeley held a public hearing on September 30, 2025 to review the proposed changes to the fee schedule, attached hereto as Exhibit A to this resolution.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that fees for Land Use Planning services provided by the Planning and Development Department

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shall be as set forth in Exhibit A, attached hereto and incorporated herein, with an effective date of November 1, 2025.

BE IT FURTHER RESOLVED that Resolution No. 71,834-N.S. is hereby amended, effective November 1, 2025, to incorporate Exhibit A, the revised Land Use Planning section of the Planning and Development Department fee schedule.

Exhibits:

A: Fee Schedule

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Planning and Development Fee Schedule, revisions effective 11/1/25 Exhibit A Page 1

CHAPTER B - LAND USE PLANNING

FEE TYPE / DESCRIPTION CURRENT FEE REMARKS
I. Application Fee: AUP, UP, VAR, MOD, DR, LM, Condo Conversion $ 500 Application fee to cover intake
and initial completeness review:

Assumes 2 hours.

II. Administrative Use Permit (AUP)

1. Tier 1 - Most complex projects $ 4,500
Base fee deposit assumes 18
hours. Add $250 per each
additional hour of staff time.

2. Tier 2 - Intermediately complex projects $ 3,500 Assumes 14 hours

3. Tier 3 - Least complex projects $ 1,500 Assumes 6 hours

4. Each additional AUP required in addition to primary application $ 500 Assumes 2 hours III. Use Permit (UP) with public hearing

1. Use Permit $ 5,500
Base fee deposit assumes 22
hours. Add $250 per each
additional hour of staff time.

2. ZAB Public Hearing (per hearing, in addition to permit fees). $ 1,250 Assumes 5 hours; includes materials
IV. Variance

1. Tier 1 - All Variances except inadvertent demolitions $ 5,500 Base fee deposit assumes 22
hours. Add $250 per each
additional hour of staff time.

2. Tier 2 - Inadvertent Demolition of Residential Structure $ 9,500 Base fee deposit assumes 38
hours. Add $250 per each
additional hour of staff time.

3. Each additional AUP, UP or Variance in addition to primary application $ 500 Assumes 2 hours

4. ZAB Public Hearing (per project in addition to permit fees) $ 1,250 Assumes 5 hours including materials
V. Zoning Certificate (ministerial permits)
A. All Zoning Certificate (ZC) reviews (e.g. ZCs for Business License, Home Occupations), EXCEPT as noted below: $ 250 Assumes 1 hour

1. Business License review - continuation of lawful existing use no fee No fee for continuation of existing legal use
2 Short-Term Rentals review $ 375 Assumes 1.5 hours

3. Accessory Dwelling Unit Neighborhood Notice $ 500
Assumes 2 hours for
neighborhood notices and
documentation

4. Accessory Dwelling Unit Plan Check $ 250 Assumes 1 hour for review.

5. Zoning Certificate for Middle Housing (ZCMH) $ 2,000 Assumes 8 hours for review.

The 15% Community Planning
Fee will also be applied.

6. Middle Housing Neighborhood Notice $ 500
Assumes 2 hours for
neighborhood notices and
documentation
7 Additional staff time (work performed beyond the time covered by the fees above) $ 250 Per hour of staff time B. Building Permit review

1. Project with Administrative Use Permit (including new main buildings) $ 500 Assumes 2 hours

2. New main buildings (no Administrative Use Permit) $ 1,000 Assumes 4 hours a 1 to 19 residential units (Residential and/or Mixed-Use) $ 500 Assumes 2 hours b 20+ residential units (Residential and/or Mixed-Use) $ 1,000 Assumes 4 hours c Nonresidential building (no Residential uses) $ 1,000 Assumes 4 hours

3. Additions, Tenant Improvements, projects not listed above $ 500 Assumes 2 hours

4. Accessory Dwelling Unit Plan Check $ 250 Assumes 1 hour

5. Landmark review $ 250 Assumes 1 hour

6. In-kind Repair/Replacement (e.g. window replacement, dry rot repair, etc.) $ 125 Assumes half hour

7. Fourth and subsequent plan check submittal $ 250 per hour of staff time

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Planning and Development Fee Schedule, revisions effective 11/1/25 Exhibit A Page 2 VI. Modification / Transfer

1. Administrative Use Permit Modification (to existing AUP, or modification to UP allowed with an AUP) $ 1,500 Assumes 6 hours

2. Use Permit Modification (ZAB Review - Permit not exercised) $ 3,000 Base fee deposit assumes 12
hours. Add $250 per additional
hour of staff time.

3. Use Permit Modification (ZAB Review - Exercised Permit) $ 5,500 Base fee deposit assumes 22
hours. Add $250 per additional
hour of staff time.

4. Transfer of Administrative Use Permit / Use Permit $ 250 Per hour of staff time

5. Public Hearing (per hearing, in addition to permit fees) $ 1,250 Assumes 5 hours including materials
VII. Environmental Review
A. California Environmental Quality Act (CEQA) or National Environmental Policy Act (NEPA)

1. Initial Study resulting in a Negative Declaration or Mitigated Negative Declaration $ 6,000 Base fee Deposit assumes 24
hours. Add $250 per additional
hour of staff time, plus direct
cost for consultants

2. Environmental Impact Report (EIR) $ 10,000
Base fee Deposit assumes 40
hours. Add $250 per additional
hour of staff time, plus direct
cost for consultants
B. Mitigation Monitoring $ 4,000
Base fee Deposit assumes 16
hours. Add $250 per additional
hour of staff time, plus direct
cost for consultants
C. Notices - NOE, NOD, etc. $ 1,000
Assumes 4 hours. Fee applies
when notices are filed by the
City on behalf of the applicant /
City after all appeals are
heard
VIII. Design Review
A. Administrative Design Review

1. Project valued under $50,000 $ 1,500 Assumes 8 hours

2. Project valued at $50,000 to $2,000,000 $ 2,500 Assumes 12 hours

3. Project valued over $2,000,000 $ 3,500
Base fee deposit assumes 16
hours. Add $250 per hour for
staff time beyond 16 hours.

4. Signs/Awnings $ 300 Assumes 2 hours
B. Design Review Committee

1. Project valued under $50,000 $ 2,500 Assumes 12 hours

2. Project valued at $50,000 to $2,000,000 $ 3,500 Assumes 16 hours

3. Project valued over $2,000,000 $ 5,500
Base fee Deposit assumes 24
hours. Add $250 per additional
hour for staff time.

C. Final Review with the DRC

1. Project valued under $50,000 $ 1,375

2. Project valued at $50,000 - $150,000 $ 1,650

3. Project valued over $150,000 $ 4,675
D. Additional Preview $ 550
E. Modifications - DRC Projects $ 1,000
F. DRC Public Hearing (per hearing, in addition to permit fees) $ 1,250 Assumes 5 hours, includes materials

FEE TYPE / DESCRIPTION CURRENT FEE REMARKS

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Planning and Development Fee Schedule, revisions effective 11/1/25 Exhibit A Page 3 IX. Landmarks Preservation Commission Review
A. Initiation

1. Structure $ 50
As set by the Landmarks
Preservation Ordinance. BMC

3.24.340.A

2. District $ 100
As set by the Landmarks
Preservation Ordinance, BMC

3.24.340.B
B. Design Review - Structural Alteration (non-residential only)

1. Project valued under $50,000 $ 1,700

2. Project valued between $50,001 and $1,999,999 $ 2,800

3. Project valued at $2,000,000 or more $ 5,500
Base fee Deposit assumes 24
hours. Add $250 per additional
hour for staff time.

C. Design Review - Signs and Awnings $ 1,100
D. Demolition Review (non-residential structures 40 or more years old as required under Section 23C.08.050C of the Zoning Ordinance) $ 1,320
E. Mills Act Historical Contract Processing - payable upon application (one-time payment) $ 4,620 F. Mills Act Historical Contract Monitoring

1. Payable upon application to cover 5 contract years $ 2,750

2. Assessed at the beginning of each subsequent 5 years $ 2,750 X. Appeals
A. Non-Applicant Appeal of AUP $ 2,000
B.

Reduced Non-Applicant Appeal of AUP: Fee reduced if signed by persons who lease or own at least 35 percent of the parcels or dwelling units within 300 feet of the project site, or at least 20 such persons (not including dependent children), whichever is less
$ 800
C. Non-Applicant Appeals of ZAB or LPC $ 3,000
D.

Reduced Non-Applicant Appeals of ZAB or LPC: Fee reduced if appeal is signed by persons who lease or own at least 50 percent of the parcels or dwelling units within 300 feet of the project site, or at least 25 such persons (not including dependent children), whichever is less $ 1,000
E. Appeal of AUP by Applicants $ 4,000 Assumes 16 hours F. Appeal of ZAB or LPC by Applicants $ 6,000 Assumes 24 hours G. Appeal of DRSL or DRC by Non-Applicant $ 2,000
H. Appeal of DRSL or DRC by Applicant $ 4,000 Assumes 16 hours I. Appeal to address processing error by staff Fee Waived XI. Plan Amendments, Reclassification Requests, and Waterfront Master Development Plan permits A. General Plan Amendment $ 10,000
Base fee Deposit assumes 40
hours. Add $250 per additional
hour for staff time, plus direct
cost for consultants
B. Specific Plan Amendment $ 10,000
C. Rezoning / Reclassification Request $ 10,000
D. Waterfront Master Development Plan Permit $ 10,000
XII. CONDOMINIUM
A. Rent Board Review $ 125 per unit
B. Notice of Local Law Compliance $ 4,000 Assumes 16 hours C. Conversion to Condominiums - one to four units $ 6,000 Base fee Deposit assumes 24
hours. Add $250 per additional
hour for staff time.

D. Conversion to Condominiums - five or more units $ 10,000 Base fee Deposit assumes 40
hours. Add $250 per additional
hour for staff time.

E. Appeal of an Administrative Determination on Conversion of a TIC to the Planning Commission by an Applicant $ 4,000 Assumes 16 hours
F. Appeal of Planning Commission Determination on Conversion to the City Council by an Applicant $ 6,000 Assumes 24 hours G. Appeal of Planning Commission Determination on Conversion to the City Council by a Non- Applicant $ 4,000 Assumes 16 hours

FEE TYPE / DESCRIPTION CURRENT FEE REMARKS

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Planning and Development Fee Schedule, revisions effective 11/1/25 Exhibit A Page 4 XIII. Miscellaneous Fees
A. Penalty for Late Filing (When Zoning Permit, Use Permit or Variance is required for work already performed) 100% of applicable fees
B. Zoning Complaint Re-inspection

1. First Re-inspection $ 250

2. Second Re-inspection $ 375

3. Third Re-inspection and all inspections thereafter $ 500 C. Agenda Subscriptions and Mailing Fees
Amount
specified per
A. R. 3.8
D. Publications and Duplication of Records
Amount
specified per
A. R. 3.8
E. Maps - large, color $ 36.00
F. Duplication of Zoning Adjustments Board, Landmarks Preservation Commission, and Design Review Commission meeting recordings
Amount
specified per
A. R. 3.8
G. Microfilm Duplication Fee
Amount
specified per
A.R. 3.8
H. Records Management Fee $ 55 per application
I. Letters Regarding Status of Properties $ 250 per hour, 2 hour min.

J. Housing Density Bonus Analysis - if separate from other permits $ 250 per hour of staff time K. Zoning Research $ 250 per hour, 2 hour min.

L. Arborist Review services $ 250 per hour, 1 hour min.

M. Use Permit Monitoring $ 250 per hour of staff time
N. Pre-application Reviews

1. Staff level review $ 1,000 Assumes 4 hours

2. Zoning Adjustments Board / Design Review Committee / Landmarks Preservation Commission / Planning Commission Review (at staff discretion in consultation with the applicant) $ 4,000 Assumes 16 hours 3 SB35, SB330, other Preliminary Development application reviews as required by State law $ 1,000 Base fee Deposit assumes 4
hours. Add $250 per additional
hour for staff time, plus other
cost recovery as expendedO.

Dedicated Project Review: In addition to all required fees, applicants may request (or the City may require) dedicated project review in which the applicant pays the City for staff overtime or to contract with a consulting firm with particular relevant expertise to review the application. In such instances, the applicant shall remit a deposit equal to the total amount of the contract, based on the bids received by the City pursuant to its purchasing procedures. Progress billings will be made if charges are expected to exceed deposit; prompt payment of bills will assure continued project review. Failure to remit a progress payment within an appropriate time frame, as determined by the Director of Planning and Development or their designee, will be treated as a withdrawal without prejudice to the underlying proposal.

At cost
P. Community Planning Fee for General Plan and Zoning Ordinance Maintenance 15% Surcharge on all Applications
for AUP, UP, Modification
and/or Variance.

Q. Coordinated Sign Design Program Fee $ 2,217
Sign program to cover multiple
signs in one building or
development
NOTE: The minimum deposits listed are intended to reflect typical project costs. Progress billings will be made during review of a project if charges exceed the deposit:
prompt payment of bills will assure continued project review. Failure to remit a progress payment within the appropriate time frame as determined by the Director of Planning and Development or their designee, will be treated as a withdrawal without prejudice to the underlying proposal. All fees are required to be paid prior to scheduling the item for Council consideration.

FEE TYPE / DESCRIPTION CURRENT FEE REMARKS

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Planning and Development Fee Schedule,
proposed revisions effective 11/1/25
ATTACHMENT 2 Page 1

CHAPTER B - LAND USE PLANNING

FEE TYPE / DESCRIPTION CURRENT FEE REMARKS
I. Application Fee: AUP, UP, VAR, MOD, DR, LM, Condo Conversion $ 500 Application fee to cover intake
and initial completeness review:

Assumes 2 hours.

II. Administrative Use Permit (AUP)

1. Tier 1 - Most complex projects $ 4,500
Base fee deposit assumes 18
hours. Add $250 per each
additional hour of staff time.

2. Tier 2 - Intermediately complex projects $ 3,500 Assumes 14 hours

3. Tier 3 - Least complex projects $ 1,500 Assumes 6 hours

4. Each additional AUP required in addition to primary application $ 500 Assumes 2 hours III. Use Permit (UP) with public hearing

1. Use Permit $ 5,500
Base fee deposit assumes 22
hours. Add $250 per each
additional hour of staff time.

2. ZAB Public Hearing (per hearing, in addition to permit fees). $ 1,250 Assumes 5 hours; includes materials
IV. Variance

1. Tier 1 - All Variances except inadvertent demolitions $ 5,500 Base fee deposit assumes 22
hours. Add $250 per each
additional hour of staff time.

2. Tier 2 - Inadvertent Demolition of Residential Structure $ 9,500 Base fee deposit assumes 38
hours. Add $250 per each
additional hour of staff time.

3. Each additional AUP, UP or Variance in addition to primary application $ 500 Assumes 2 hours

1. Business License review - continuation of lawful existing use no fee No fee for continuation of existing legal use
2 Short-Term Rentals review $ 375 Assumes 1.5 hours

3. Accessory Dwelling Unit Neighborhood Notice $ 500
Assumes 2 hours for
neighborhood notices and
documentation
(Plan check is
billed separately, with Building
Permit)

4. Accessory Dwelling Unit Plan Check $ 250 Assumes 1 hour for review.

5. Zoning Certificate for Middle Housing (ZCMH) $ 2,000 Assumes 8 hours for review.

The 15% Community Planning
Fee will also be applied.

6. Middle Housing Neighborhood Notice $ 500
Assumes 2 hours for
neighborhood notices and
documentation

5. 7 Additional staff time (work performed beyond the time covered by the fees above) $ 250 Per hour of staff time B. Building Permit review

1. Project with Administrative Use Permit (including new main buildings) $ 500 Assumes 2 hours

3. Additions, Tenant Improvements, projects not listed above $ 500 Assumes 2 hours

4. Accessory Dwelling Unit Plan Check $ 250 Assumes 1 hour

5. Landmark review $ 250 Assumes 1 hour

6. In-kind Repair/Replacement (e.g. window replacement, dry rot repair, etc.) $ 125 Assumes half hour

7. Fourth and subsequent plan check submittal $ 250 per hour of staff time

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Planning and Development Fee Schedule,
proposed revisions effective 11/1/25
ATTACHMENT 2 Page 2

FEE TYPE / DESCRIPTION CURRENT FEE REMARKS

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Planning and Development Fee Schedule,
proposed revisions effective 11/1/25
ATTACHMENT 2 Page 3
VI. Modification / Transfer

1. Administrative Use Permit Modification (to existing AUP, or modification to UP allowed with an AUP) $ 1,500 Assumes 6 hours

2. Use Permit Modification (ZAB Review - Permit not exercised) $ 3,000 Base fee deposit assumes 12
hours. Add $250 per additional
hour of staff time.

3. Use Permit Modification (ZAB Review - Exercised Permit) $ 5,500 Base fee deposit assumes 22
hours. Add $250 per additional
hour of staff time.

4. Transfer of Administrative Use Permit / Use Permit $ 250 Per hour of staff time

1. Project valued under $50,000 $ 1,500 Assumes 8 hours

2. Project valued at $50,000 to $2,000,000 $ 2,500 Assumes 12 hours

3. Project valued over $2,000,000 $ 3,500
Base fee deposit assumes 16
hours. Add $250 per hour for
staff time beyond 16 hours.

4. Signs/Awnings $ 300 Assumes 2 hours
B. Design Review Committee

1. Project valued under $50,000 $ 2,500 Assumes 12 hours

2. Project valued at $50,000 to $2,000,000 $ 3,500 Assumes 16 hours

3. Project valued over $2,000,000 $ 5,500
Base fee Deposit assumes 24
hours. Add $250 per additional
hour for staff time.

C. Final Review with the DRC

1. Project valued under $50,000 $ 1,375

2. Project valued at $50,000 - $150,000 $ 1,650

3. Project valued over $150,000 $ 4,675
D. Additional Preview (existing fee, relocated from Sec. VII.B above) $ 550 E. Modifications - DRC Projects $ 1,000
F. DRC Public Hearing (per hearing, in addition to permit fees) $ 1,250 Assumes 5 hours, includes materials

FEE TYPE / DESCRIPTION CURRENT FEE REMARKS

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Planning and Development Fee Schedule,
proposed revisions effective 11/1/25
ATTACHMENT 2 Page 4
IX. Landmarks Preservation Commission Review
A. Initiation

1. Structure $ 50
As set by the Landmarks
Preservation Ordinance. BMC

3.24.340.A

2. District $ 100
As set by the Landmarks
Preservation Ordinance, BMC

3.24.340.B
B. Design Review - Structural Alteration (non-residential only)

1. Project valued under $50,000 $ 1,700

2. Project valued between $50,001 and $1,999,999 $ 2,800

3. Project valued at $2,000,000 or more $ 5,500
Base fee Deposit assumes 24
hours. Add $250 per additional
hour for staff time.

1. Payable upon application to cover 5 contract years $ 2,750

2. Assessed at the beginning of each subsequent 5 years $ 2,750 X. Appeals
A. Non-Applicant Appeal of AUP $ 2,000
B.

D. Conversion to Condominiums - five or more units $ 10,000 Base fee Deposit assumes 40
hours. Add $250 per additional
hour for staff time.

FEE TYPE / DESCRIPTION CURRENT FEE REMARKS

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Planning and Development Fee Schedule,
proposed revisions effective 11/1/25
ATTACHMENT 2 Page 5
XIII. Miscellaneous Fees
A. Penalty for Late Filing (When Zoning Permit, Use Permit or Variance is required for work already performed) 100% of applicable fees
B. Zoning Complaint Re-inspection

1. First Re-inspection $ 250

2. Second Re-inspection $ 375

J. Housing Density Bonus Analysis - if separate from other permits $ 250 per hour of staff time K. Zoning Research $ 250 per hour, 2 hour min.

L. Oak Tree Review Arborist Review services $ 250 per hour, 1 hour min., plus consultant costs
M. Use Permit Monitoring $ 250 per hour of staff time
N. Pre-application Reviews

1. Staff level review $ 1,000 Assumes 4 hours

Dedicated Project Review: In addition to all required fees, applicants may request (or the City may require) dedicated project review in which the applicant pays the City for staff overtime or to contract with a consulting firm with particular relevant expertise to review the application. In such instances, the applicant shall remit a deposit equal to the total amount of the contract, based on the bids received by the City pursuant to its purchasing procedures. Progress billings will be made if charges are expected to exceed deposit; prompt payment of bills will assure continued project review. Failure to remit a progress payment within an appropriate time frame, as determined by the Director of Planning and Development or their his/her designee, will be treated as a withdrawal without prejudice to the underlying proposal.

At cost
P. Community Planning Fee for General Plan and Zoning Ordinance Maintenance 15% Surcharge on all Applications
for AUP, UP, Modification
and/or Variance.

Q. Coordinated Sign Design Program Fee $ 2,217
Sign program to cover multiple
signs in one building or
development
NOTE: The minimum deposits listed are intended to reflect typical project costs. Progress billings will be made during review of a project if charges exceed the deposit:
prompt payment of bills will assure continued project review. Failure to remit a progress payment within the appropriate time frame as determined by the Director of Planning and Development or their his/her designee, will be treated as a withdrawal without prejudice to the underlying proposal. All fees are required to be paid prior to scheduling the item for Council consideration.

FEE TYPE / DESCRIPTION CURRENT FEE REMARKS

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Attachment 3

NOTICE OF PUBLIC HEARING

BERKELEY CITY COUNCIL

REVISIONS TO PLANNING DEPARTMENT FEE SCHEDULE
The public may participate in this hearing by remote video or in-person.

Notice is hereby given by the City Council of the City of Berkeley that a public hearing will be conducted by said city council of the City of Berkeley at which time and place all persons may attend and be heard upon the following:

The Planning and Development Department is proposing revisions to the Land Use Planning section of its fee schedule effective November 1, 2025, to create fees for a new type of Zoning Certificate for the review of Middle Housing projects, and for the neighborhood noticing thereof, to add a fee for arborist services when required for the review of a project application, and to make minor clarifications to language in the existing fee schedule
The hearing will be held on September 30, 2025 at 6:00 PM in the School District Board Room, located at 1231 Addison Street, Berkeley CA 94702.

For further information, please contact Jim Bondi, Associate Management Analyst, at (510) 981-7428.

A copy of the agenda material for this hearing will be available on the City’s website at https://berkeleyca.gov/ as of September 18, 2025. Once posted, the agenda for this meeting will include a link for public participation using Zoom video technology, as well as any health and safety requirements for in-person attendance.

Written comments should be mailed or delivered directly to the City Clerk, 2180 Milvia Street, Berkeley, CA 94704, or e-mailed to
[email protected] in order to ensure
delivery to all Councilmembers and inclusion in the agenda packet.

Communications to the Berkeley City Council are public record and will become part of the City’s electronic records, which are accessible through the City’s website. Please note: e-mail addresses, names, addresses, and other contact information are not required, but if included in any communication to the City Council, will become part of the public record. If you do not want your e-mail address or any other contact information to be made public, you may deliver communications via U.S. Postal Service or in person to the City Clerk. If you do not want your contact information included in the public record, please do not include that information in your communication. Please contact the City Clerk at (510) 981-6900 or [email protected] for further information.

If you challenge the above in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City of Berkeley at, or prior to, the public hearing.

Background information concerning this proposal will be available at the City Clerk Department and posted on the City of Berkeley webpage at least 12 days prior to the public hearing.

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Attachment 3
Published: September 12, 2025 and September 19, 2025 – The Berkeley Voice Published pursuant to Government Code Section 6062a
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ I hereby certify that the Notice for this Public Hearing of the Berkeley City Council was posted at the display case located near the walkway in front of the Maudelle Shirek Building, 2134 Martin Luther King Jr. Way, as well as on the City’s website, on September 18, 2025.
________________________________
Mark Numainville, City Clerk

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ACTION CALENDAR
September 30, 2025
To: Honorable Mayor and Members of the City Council
From: Hansel A. Aguilar, Director of Police Accountability Submitted by: Hansel A. Aguilar, Director of Police Accountability Subject: Resolution calling on the California State Legislature to Amend Government Code Section 12519 to allow heads of civilian oversight agencies to directly request investigative assistance from the Attorney General’s office.

RECOMMENDATION
Adopt a Resolution calling on the California State Legislature to Amend Government Code Section 12519 to allow heads of civilian oversight agencies to directly request investigative assistance from the Attorney General’s office.

SUMMARY
The ODPA Companion Report (August 29, 2024) was prepared by the Office of the Director of Police Accountability to supplement the Police Accountability Board’s (PAB) independent investigation into the Berkeley Police Department (BPD) texting scandal involving the Downtown Task Force and Bike Unit. The report provides additional analysis and recommendations in response to findings of arrest quotas, racially biased and inappropriate communications, and cultural issues within the unit that raised serious concerns about accountability, oversight, and public trust. While the PAB’s investigation focused on the facts and policies underlying the incident, this companion report highlights broader systemic reforms necessary to prevent similar issues in the future.

The document offers targeted recommendations for the City Council, City Manager, and the community. For Council, it calls for legislative advocacy to expand civilian oversight authority, investment in real-time audits of body-worn camera footage, clear protocols for handling complaints against the Chief of Police, stronger neutrality in communications during investigations, expanded public data reporting, and a critical review of specialized units. It also proposes a formal City apology to acknowledge the harm caused and reaffirm a commitment to fair and impartial policing. Additional recommendations urge the City Manager to tighten oversight of city-issued devices and create an Alcohol Rehabilitation Leave Procedure to support officers’ wellness. Finally, the report encourages the community to pursue Charter amendments granting the ODPA/PAB independent legal counsel and the authority to initiate misconduct investigations proactively. Collectively, these measures are aimed at strengthening oversight, improving accountability systems, and rebuilding public trust in policing.

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ACTION CALENDAR
September 30, 2025

FISCAL IMPACTS OF RECOMMENDATION
Implementation of the recommendations would not require additional funding beyond existing resources; the fiscal impact would be limited to staff time necessary to carry out the proposed actions.

CURRENT SITUATION AND ITS EFFECTS
Civilian oversight agencies are essential to promoting transparency and accountability in law enforcement, yet their impact is often constrained by limited authority and resources.

Under the current Government Code section 12519, only a narrow group of officials can request investigative support from the Attorney General’s office—excluding civilian oversight leaders, who are frequently at the forefront of addressing public concerns about police misconduct. Expanding this authority to include the heads of civilian oversight agencies would strengthen their ability to carry out their responsibilities without undue obstacles, particularly in cases where investigations face resistance or require specialized expertise.

The findings in the Berkeley Police Department Texting Offences: An Independent Investigation by the Police Accountability Board highlight the significant challenges oversight bodies encounter in accessing critical information, such as the Swanson report and other internal records. These barriers underscore the urgent need for legal authority that enables oversight agencies to secure the cooperation and resources necessary for examining serious allegations of misconduct. Allowing civilian oversight leaders to request assistance from the Attorney General would not only reaffirm the Legislature’s commitment to transparency and accountability but also ensure that oversight investigations are thorough, effective, and independent.

In addition to investigative authority, the ability to seek formal legal opinions from the Attorney General carries unique value. Attorney General opinions provide authoritative, statewide interpretations of law that help ensure consistency across jurisdictions. For civilian oversight agencies, access to such opinions would provide critical guidance in complex or contested areas of law, reducing uncertainty and strengthening the legal foundation of their work. This would also reduce reliance on local interpretations that may be constrained by conflicts of interest or limited resources. Allowing oversight directors to request Attorney General opinions would therefore not only empower investigations but also help standardize best practices, clarify statutory ambiguities, and enhance public confidence that oversight decisions rest on sound legal footing.

BACKGROUND
In accordance with City Charter Section 125(17)(a), the City of Berkeley Police Accountability Board’s Subcommittee on Policy and Practices conducted an examination of policies, practices, and procedures within the Berkeley Police Department (BPD) concerning the Downtown Task Force (DTF) and Bike Unit allegations.

A Special Meeting of the PAB was convened on November 15, 2022, where the Board voted to establish a subcommittee to review all policies and practices related to the

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ACTION CALENDAR
September 30, 2025
allegations made by former BPD Officer Corey Shedoudy, which had been made public on November 10, 2022. The subcommittee, initially chaired by former Board Member Cheryl Owens and later by Board Member Kitty Calavita following Owens’ resignation, also included PAB Chair John (Chip) Moore. The allegations involved racist text messages, bias against the unhoused, and pressure to meet arrest quotas, with the Sergeant of the DTF implicated.

This report aimed not only to highlight deficiencies in BPD policies and practices but also to offer concrete recommendations for addressing these issues. Achieving these goals required the collective efforts of the PAB, BPD leadership, the City Manager, and the City Council. Through this report, the PAB reaffirmed its commitment to collaboration, justice, fairness, trust, and community safety.

In support of these objectives, the ODPA submitted a complementary report to provide additional information related to the PAB’s findings, in accordance with Chapter VI, Section C.1. of the City of Berkeley’s Commissioner’s Manual.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
No environmental sustainability or climate impacts were identified in connection with this recommendation.

RATIONALE FOR RECOMMENDATION
Civilian oversight agencies are critical to ensuring transparency and accountability in law enforcement, but their effectiveness is often constrained by limited authority and resources. Current law (Government Code Section 12519) does not allow civilian oversight leaders to request investigative assistance from the Attorney General, even when their work faces resistance or requires specialized expertise. Amending this section to include oversight agency heads would strengthen their ability to conduct thorough investigations, remove barriers to accessing critical information, and affirm the Legislature’s commitment to independent oversight, transparency, and progressive policing reforms.

CONTACT PERSON
Hansel A. Aguilar, Director of Police Accountability, (510) 981-4960 Attachments:
1: Resolution
2: Companion Report - August 29, 2024

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RESOLUTION NO. ##,###-N.S.

CALLING ON THE CALIFORNIA STATE LEGISLATURE TO AMEND GOVERNMENT CODE SECTION 12519 TO ALLOW HEADS OF CIVILIAN OVERSIGHT AGENCIES TO

DIRECTLY REQUEST INVESTIGATIVE ASSISTANCE FROM THE ATTORNEY GENERAL’S OFFICE.

WHEREAS, the Police Accountability Board (PAB) conducted an independent investigation into allegations of arrest quotas, inappropriate communications, and accountability failures within the Berkeley Police Department’s Downtown Task Force and Bike Unit; and
WHEREAS, the Office of the Director of Police Accountability (ODPA), as Secretary to the PAB and Charter officer, submitted a Companion Report on August 29, 2024, which highlighted the systemic barriers that hinder civilian oversight investigations, including lack of authority to directly request legal opinions or assistance from the Attorney General’s Office; and
WHEREAS, under current law, Government Code Section 12519 only authorizes certain enumerated officials (e.g., legislators, statewide constitutional officers, county counsel, district attorneys, and sheriffs) to obtain written legal opinions from the Attorney General, excluding heads of civilian oversight agencies; and
WHEREAS, Attorney General opinions provide authoritative statewide interpretations of law that promote consistency, reduce uncertainty, and ensure that sensitive matters are guided by impartial legal standards; and extending this authority to civilian oversight leaders would give them the tools necessary to carry out their mandates with legal clarity and independence; and
WHEREAS, civilian oversight agencies are tasked with promoting transparency, accountability, and community trust in law enforcement, yet their ability to carry out these responsibilities effectively is constrained by statutory limitations; and WHEREAS, Senator Jesse Arreguin, former Mayor of Berkeley and current Chair of the California State Senate Public Safety Committee, is uniquely positioned to understand the significance of this reform and to advance legislation that strengthens civilian oversight; and

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WHEREAS, amending Government Code Section 12519 to include heads of civilian oversight agencies as authorized requestors would affirm the Legislature’s commitment to strengthening civilian oversight, improving accountability systems, and ensuring independent investigations of serious allegations of misconduct.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that The City of Berkeley calls upon the California State Legislature to amend Government Code Section 12519 to explicitly authorize the heads of civilian oversight agencies to directly request investigative opinions and assistance from the Attorney General’s Office.

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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

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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.

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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
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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
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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
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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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
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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
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EXHIBIT 1

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Code:

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VEHICLE CODE - VEH
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

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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
/
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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

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President Long: Those papers you speak of, Mr. Pull-
rtian, liiay. be distributed.
. Major Pullmall: Thank you, (Dhief.

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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

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Some better method of dealing with minor'offenders should be devised.

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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

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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

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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.”).
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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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FIGURE 4. E MPLOYMENT ACTIONS AND QUOTA STATUTES
Silent
(No language on Type
of Employment
Action; e.g., Arkansas)
Adverse Employment
Action Only
(e.g., New York)
Employment Benefits
+ Adverse Action
(e.g., Texas)
Additional Features : Two statutes have unique features that are worth noting. First, Illinois has a provision that attempts to address potential funding complications that may arise from prohibitions. 110 Its statute states that the prohibition on quotas “shall not affect the conditions of any federal or State grants or funds awarded to the municipality and used to fund traffic enforcement programs.” 111
Second, Tennessee amended its prohibition in July 2020 and made vio- lation of the statute a Class B misdemeanor subject to a fine. 112 Since
it is a new amendment, time will tell if this will successfully deter police brass attempting to implement quotas. The shortcomings of each of these different types of state quota prohibitions often inter- face with other legal obstacles and shape litigation outcomes. That will be the topic of the next Part.

II
P

OLICE QUOTA LITIGATION
The national patchwork of quota-based statutes has produced a variegated body of caselaw. Police officers are the typical plaintiffs that bring these cases to court. They usually argue that their resistance to or inability to meet a quota led to some adverse employment action. Alternatively, officers claim that they endured retaliation for speaking out about quotas—a claim that usually involves First Amendment issues.

People subject to criminal law enforcement are also common par- ties in police quota litigation.
113 These individuals fall into two catego-
110 65 ILL. COMP. STAT. ANN. 5/11-1-12 (West, Westlaw through P.A. 101-651). 111 Id.
112 Act of July 15, 2020, ch. 801, 2020 Tenn. Pub Acts, https://publications.tnsosfiles.com/ acts/111/pub/pc0801.pdf.
113 There are a handful of cases where governments have brought charges against public officials who implemented or conformed to quotas, but these are rare. See Becker-Ross v.

State, 595 S.W.3d 261 (Tex. App. 2020); Gerwer v. Kelly, 980 N.Y.S.2d 275 (Sup. Ct. 2013). 76 | Page

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ries. They can be criminal defendants who argue that their contact with law enforcement was predicated on an officer’s compliance with an illegal quota system. In essence, these parties raise the practice of quota-based policing as an affirmative defense. In instances where alleged quota-based contact resulted in dropped charges or the termi- nation of the criminal action, parties have also brought federal civil rights lawsuits under 42 U.S.C. § 1983.
114 In these cases, which some-
times emerge from jurisdictions without anti-quota laws, plaintiffs argue that law enforcement’s adherence to police quotas led to a vio- lation of their civil rights.

Whether the party challenging the quota is an officer or a civilian, there are a range of socio-legal, doctrinal, and evidentiary hurdles that litigants must overcome before courts will meaningfully engage with their claims. This subsection briefly describes these hurdles for both groups, then describes the varying outcomes of these cases.

A. Police Speech and the Blue Code
Police officers are the group most likely and best positioned to litigate challenges to quotas, but the “code of silence,” which prohibits officers from reporting misconduct, serves as a barrier. 115 This
code116—which commentators also refer to as “the blue wall of 114 42 U.S.C. § 1983.
115 See, e.g., Isidoro Rodriguez, The Plight of the Police Whistleblower , CRIME REPORT (June 18, 2020), https://thecrimereport.org/2020/06/18/the-plight-of-the-police- whistleblower (quoting Seth Stoughton, law professor and former police officer, saying “[t]here is tremendous pressure in policing, a cultural pressure, to not expose fellow officers to either professional or physical threats”).
116 See SANJA K UTNJAK I VKOVIC, F ALLEN B LUE K NIGHTS: C ONTROLLING P OLICE CORRUPTION 20 (2005) (describing the code as “the informal prohibition within police culture of reporting misconduct by fellow officers—binds police together”); see also Bret D. Asbury, Anti-Snitching Norms and Community Loyalty , 89 O R. L. R EV. 1257, 1285–92 (2011) (describing the code as an anti-snitching norm rooted in ideas about group loyalty and family); David Rudovsky, Police Abuse: Can the Violence Be Contained? , 27 H ARV.

C.R.-C.L. L. REV. 465, 487 (1992) (“The code of silence does more than prevent testimony.

It mandates that no officer report another for misconduct, that supervisors not discipline officers for abuse, that wrongdoing be covered up, and that any investigation or legal action into police misconduct be deflected and discouraged.”). Courts have also recognized the code in § 1983 actions. See Gabriel J. Chin & Scott C. Wells, The “Blue Wall of Silence” as Evidence of Bias and Motive to Lie: A New Approach to Police Perjury , 59 U. P ITT. L.

REV. 233, 239, n.16 (1998) (listing cases). See generally Myriam E. Gilles, Breaking the Code of Silence: Rediscovering “Custom” in Section 1983 Municipal Liability , 80 B.U. L.

REV. 17, 18 (2000) (exploring the police “code of silence” as an unconstitutional police practice under § 1983). In the context of quotas, the blue code could be understood in two ways. First, it could be understood as a prohibition against one officer revealing another officer’s compliance with an illegal quota (a form of misconduct) to a perceived outsider (i.e. the public, the media). Alternatively, it could apply to an officer who reveals that law enforcement leadership is enforcing quotas. At its core, the code is about a brotherhood in which some police officers might not include management. Put another way, there is an 77 | Page

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silence,” “blue cocoon,” “blue shield,” or “blue curtain” 117—has been a problem in American policing for almost a century. 118 One police misconduct attorney explains how a breach of this code can be conse- quential: “while police officers may feel that a fellow officer has acted wrongfully, they fear that they will lose their job, or be subject to ridi- cule, ostracization, and physical reprisals from their comrades if the truth is told.”
119 The same applies to speaking out about quotas. The
case of Adrian Schoolcraft is telling. Schoolcraft worked for the NYPD and secretly recorded superiors discussing illegal quotas or, as some officials described it, “paying the rent.”
120 Three weeks after he
made misconduct allegations, a dozen officers, led by a deputy chief, went to his apartment.
121 A tape recording of the event revealed that
the deputy chief Mike Marino, who has been described as a devotee of NYPD’s numbers-driven policing,
122 warned Schoolcraft, “they are
going to treat you like an EDP [emotionally disturbed person] . . . .

Now, you have a choice. You get up like a man and put your shoes on and walk into that bus, or they’re going to treat you as an EDP and argument that the blue code is about protecting not police leadership, but rank and file.

But actual instances involving police officers revealing the existence of quotas suggest that leadership is considered part of the code. See generally Radley Balko, Opinion, The Blue Wall: Stronger than Ever , W ASH. P OST (Sept. 4, 2015), https://www.washingtonpost.com/ news/the-watch/wp/2015/09/04/the-blue-wall-stronger-than-ever (describing instances of police officers who have revealed the existence of quotas and allege retaliation from their peers and leadership).
117 See Chin & Wells, supra note 116, at 237 n.15 (describing the different terms for the code).
118 See Craig B. Futterman, Chaclyn Hunt & Jamie Kalven, Youth/Police Encounters on Chicago’s South Side: Acknowledging the Realities , 2016 U. CHI. LEGAL F. 125, 182 (noting that “over the last eighty-five years, at least nine different commissions around the nation have identified the police code of silence as a serious problem that prevents accountability” and listing all of the reports).
119 G. Flint Taylor, A Litigator’s View of Discovery and Proof in Police Misconduct Policy and Practice Cases , 48 D EPAUL L. R EV. 747, 758 (1999); see also Aziz Z. Huq & Richard H. McAdams, Litigating the Blue Wall of Silence: How to Challenge the Police Privilege to Delay Investigation , 2016 U. C HI. L EGAL F. 213, 247–48 (“Scholarship on policing amply shows that police officers enforce the code of silence with social ostracism, refusals to answer calls for backup, denials of promotion, reassignments to less desirable postings, and threats of violence.”).
120 Graham Rayman, The NYPD Tapes: Inside Bed-Stuy’s 81st Precinct , V ILLAGE VOICE (May 4, 2010), https://www.villagevoice.com/2010/05/04/the-nypd-tapes-inside-bed- stuys-81st-precinct.
121 See Graham Rayman, NYPD Tapes Update: Queens DA Richard Brown’s Report on Whistleblower Cop Raises More Questions than It Answers , V ILLAGE V OICE (Dec. 13, 2012), https://www.villagevoice.com/2012/12/13/nypd-tapes-update-queens-da-richard- browns-report-on-whistleblower-cop-raises-more-questions-than-it-answers. 122 See Graham Rayman, Deputy Chief Michael Marino in Stop-and-Frisk Trial: ‘Do Your Job or Suffer the Consequences ,’ VILLAGE V OICE (Mar. 25, 2013), https:// www.villagevoice.com/2013/03/25/deputy-chief-michael-marino-in-stop-and-frisk-trial-do- your-job-or-suffer-the-consequences.
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that means handcuffs.” 123 Schoolcraft was subjected to the latter and forcibly committed to a psychiatric ward.124 After six days in the ward, he was discharged and suspended and continued to receive visits from police officers.125 Ultimately, he made the tapes public and sued the NYPD for retaliation.126 The NYPD settled.127 Since the incident, the City has not “released one report, document or even scrap of paper which explains the NYPD’s handling of the episode or details the department’s conclusions about Schoolcraft’s allegations.” 128 While
this is one of the more spectacular examples of what happens when the code of silence is breached, it highlights its retaliatory nature. 129
As some of the cases discussed in this Article show, the threat of retal- iation can determine whether quota cases make it to courts and, if they do, the posture in which they enter the legal system.

The code of silence bleeds into First Amendment issues involving police speech. The Supreme Court in Garcetti v. Ceballos ruled that public employees who speak pursuant to their job duties have no First Amendment protection from retaliation for such speech.
130 If an
officer speaks about a quota in their official capacity, then a First Amendment retaliation claim cannot succeed. The only way such a claim could prevail is if the officer demonstrates that she spoke as a citizen and not as an employee. Post-Garcetti , federal district and appeals courts have rejected retaliation claims brought by police officers who argued that they were subject to an adverse employment action due to their complaints about police quotas.
131 Considering the
123 Graham Rayman, NYPD Tapes 4: The WhistleBlower, Adrian Schoolcraft , VILLAGE VOICE ( J u n e 1 5 , 2 0 1 0 ) , h t t p s : / / w w w . v i l l a g e v o i c e . c o m / 2 0 1 0 / 0 6 / 1 5 / n y p d - t a p e s - 4 - t h e - whistleblower-adrian-schoolcraft.
124 Id.
125 Id.
126 Goodman, supra note 26.
127 Id.
128 Graham Rayman, Adrian Schoolcraft: The Other NYPD Scandal in the Room , VILLAGE V OICE ( A p r . 2 0 , 2 0 1 1 ) , h t t p s : / / w w w . v i l l a g e v o i c e . c o m / 2 0 1 1 / 0 4 / 2 0 / a d r i a n - schoolcraft-the-other-nypd-scandal-in-the-room.
129 Roberta Ann Johnson, Whistleblowing and the Police, 3 RUTGERS J.L. & URB. POL’Y 74, 83 (2005) (“The threat of retaliation against whistleblowers has a chilling effect. The threat prevents officers from coming forward to expose corrupt and abusive practices and it prevents serious wrongdoing from being addressed in-house.”). 130 547 U.S. 410, 424 (2006).
131 See, e.g., Taylor v. Pawlowski, 551 F. App’x 31, 31 (3d Cir. 2013) (ruling that officer’s statements to his superiors about the illegality of a quota system for traffic stops were not protected speech under the First Amendment, and that he was acting as a public employee speaking pursuant to his duties); Cid v. Bd. of Cnty. Comm’rs, No. 18-4012, 2019 WL 161495, at *7 (D. Kan. Jan. 9, 2019) (rejecting a First Amendment retaliation claim brought by a terminated officer because he “directed his speech to his immediate supervisors and others in his chain of command—but no one outside that chain of command” and did not make a showing that his speech “involve[d] a matter of public concern and not merely a 79 | Page

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Berkeley City CouncilSeptember 30, 2025

Berkeley City Council
September 30, 2025