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JOINT CASE MANAGEMENT STATEMENT Case No. 00-cv-4599 WHO
BARBARA J. PARKER, City Attorney, CABN 69722
RYAN RICHARDSON, Special Counsel, CABN 223548
BRIGID S. MARTIN, Special Counsel, CABN 231705
One Frank H. Ogawa Plaza, 6th Floor
Oakland, California 94612
Telephone: (510) 238-3751
Facsimile: (510) 238-6500
Email: [email protected]
Attorneys for CITY OF OAKLAND
JOHN L. BURRIS, CABN 69888
Law Offices of John L. Burris
Airport Corporate Centre
7677 Oakport Street, Ste. 1120
Oakland, California 94621
Telephone: (510) 839-5200
Facsimile: (510) 839-3882
JAMES B. CHANIN, CABN 76043
Law Offices of James B. Chanin
3050 Shattuck Avenue
Berkeley, California 94705
Telephone: (510) 848-4752
Attorneys for PLAINTIFFS
(Additional Counsel on Next Page)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
DELPHINE ALLEN, et al. )
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Plaintiffs, )
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v. )
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CITY OF OAKLAND, et al., )
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Defendant(s). )
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Case No. 00-cv-04599 WHO
JOINT CASE MANAGEMENT
STATEMENT
Date: April 11, 2023
Time: 3:30 p.m.
Courtroom 2, 17th Floor
Hon. William H. Orrick
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JOINT CASE MANAGEMENT STATEMENT Case No. 00-cv-4599 WHO
ROCKNE A. LUCIA, JR., CABN 109349
Rains Lucia Stern St. Phalle & Silver
Attorneys & Counselors at Law
2300 Contra Costa Boulevard, Suite 500
Pleasant Hill, CA 94523
Telephone: (925) 609-1699
Facsimile: (925) 609-1690
Attorneys for OAKLAND POLICE OFFICERS ASSOCIATION
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JOINT CASE MANAGEMENT STATEMENT Case No. 00-cv-4599 WHO
TABLE OF CONTENTS
PARTIES’ JOINT STATEMENT................................ ................................ ........... 1 PLAINTIFFS’ STATEMENT ................................ ................................ ................. 5 PLAINTIFFS’ CURRENT POSITION ................................ ................................ ...... 5 I. TASK 5 (COMPLAINT PROCEDURES FOR IAD) ................................ .............. 6 II. TASK 45 (CONSISTENCY OF DISCIPLINE POLICY) ................................ ....... 12 CONCLUSION ................................ ................................ ................................ ......... 17 CITY’S STATEMENT................................ ................................ ............................. 18 OVERVIEW ................................ ................................ ................................ ............. 18 I. INTERNAL AFFAIRS COMPLAINT PROCEDURES (TASK 5)......................... 18
A. The Department is Already Employing Practices to Prevent the Deficiencies Identified by the Outside Investigator and to Strengthen Internal Investigations in the Immediate Term ................................ ........................... 19
B. Mandating Practices in Policy Will Provide Long-Term Sustainability of Protections and Improvements................................ ................................ ....... 23
1. The Department’s Two Proposed Alternative Recommendations .................. 24 II. CONSISTENCY OF DICIPLINE POLICY (TASK 45) ................................ ....... 29
II. INTERNAL AFFAIRS TIMELINES (TASK 2) ................................ ..................... 33
III. THE DEPARTMENT’S MAINTAINS AN EFFECTIVE RISK MANAGEMENT PROGRAM (TASKS 34 &41)................................ ................................ .............. 33
A. The Department Continues to Meaningfully Use Stop Data as Part of its Risk Management Process................................ ................................ ...................... 34
V. OFFICER RECRUITING, ATTRITION, DEPARTMENT
DIVERSITY ................................ ................................ ................................ ...... 36
VI. OFFICERS USE REASONABLE FORCE AND DEPARTMENT FORCE REVIEW IS DEPENDABLE ................................ ................................ ............... 42 A. Force and Force Investigations (TASKS 24 & 25)................................ .......... 42 B. Force Boards (TASKS 26 & 30)................................ ................................ ...... 44 CONCLUSION ................................ ................................ ................................ ........ 45 OAKLAND POLICE COMMISSION’S STATEMENT ................................ ......... 46 THE OPOA’S STATEMENT ................................ ................................ .................. 50 Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 3 of 53 1 2
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STATEMENT
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PARTIES’ JOINT STATEMENT
At the last hearing, the Court asked the parties to “engage in a discussion of how to move forward in a way that finally achieves compliance.” Plaintiffs’ counsel and the Mayor, City Administrator, City Attorney, Police Department, Police Commission Chair, Inspector General, and the Community Police Review Agency (CPRA) Director have been meeting together to discuss how to best implement the outside investigator’s recommendations as well as other ways to strengthen the Department’s internal investigation processes. A member of the Monitoring Team has also attended those meetings. During additional party meetings involving leaders from each of these City entities and plaintiffs’ counsel, the parties have shared perspectives on what we need to ensure the Department sustains substantial compliance with the NSA absent further Court oversight.
The parties have reached some consensus about how to move forward in a way that finally achieves compliance and ensure that the City can sustain substantial compliance absent Court oversight.
To the extent the parties do not concur, each party sets forth its further position in the party’s statement to the Court.
The parties agree that the Department has sustained compliance on 49 of 51 NSA tasks. The parties agree, however, that the Department must strengthen its internal investigation processes to remedy the deficiencies identified in the outside investigator’s January 2023 report. The Department must also ensure that those processes result in fair and consistent discipline.
The Department is creating and revising its policies and practices to implement the outside investigator’s recommendations or better alternatives, though the changes extend beyond merely responding to the recommendations. The parties agree that the following seven new or revised policies must be in effect before the City can demonstrate the Department’s ability to sustain substantial compliance with the NSA absent Court oversight: Department General Order Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 4 of 53 1 2
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(DGO) D-22, Personal Relationships (new); Criminal Investigation Division (CID) Recusal Process Policy (revised); DGO M-04.1, Criminal Investigation of Members (revised); IAD Policy and Procedure Manual (revised); IAD Training Bulletin VT.01 (revised); CID Policy and Procedure Manual on Training (revised); and an Information Bulletin on psychological fitness for duty evaluations (new).
Although the parties have made progress concurring on the content of new policy and revisions to existing policy, there remains work to be completed. The Department has sent drafts of six of the seven policies and associated tracking forms (TF) and report templates to the Monitoring Team and plaintiffs’ counsel for feedback: DGO D-22, Personal Relationships; CID Recusal Policy; Internal Affairs Division (IAD) Policy and Procedure Manual; and IAD Training Bulletin VT.01, Internal Investigations Procedures. The Department has received and incorporated Monitoring Team feedback on DGO-22, Personal Relationships; and CID Recusal Process Policy.
After the Department incorporates feedback from the Monitoring Team and plaintiffs’ counsel, it will send the policies to the Police Commission. Pursuant to charter section 604(b)(5), the Commission has 120 days to review, approve, or revise these policies. The City’s labor unions must also be given reasonable time to meet and confer regarding new or revised Department General Orders. Once a final policy has been reviewed and approved by all appropriate City entities, the Department’s practice is to send it back to the Monitoring Team to review any substantive changes. Although it is rare, in one instance (i.e., body-worn camera policy) that additional layer of review resulted in additional changes suggested by the Monitoring Team that required the policy to be resent to and reapproved by the Police Commission which delayed policy implementation.
While the parties await publication of the policies, the Department will begin to implement certain practices consistent with these policies that are key to correcting the deficiencies identified in the outside investigator’s report.
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First, the Chief of Police must read all internal investigation reports involving a recommended finding of sustained for any allegation that could result in termination (i.e., has ‘T” as one of the possible consequence on the Discipline Matrix; this includes Manual of Rules violations for obedience to laws felony/serious misdemeanor and DUIs, and use of force), or a recommended finding of sustained for obedience to laws misdemeanor/infraction. Second, prior to case presentations to the Chief, the deputy chief in an investigator’s chain of command must review cases with recommended sustained findings for allegations that could result in termination, and allegations of violations of obedience to laws misdemeanor/infraction. Third, the Bureau of Risk Management Deputy Chief must review cases involving not sustained recommended findings for allegations that could result in termination if sustained, and not sustained allegations of violations of obedience to laws misdemeanor/infraction. Fourth, the Department has added an executive summary to investigators’ presentation template that notes whether the case involves any of the following: subject removed or downgraded to witness, deletions or changes in MOR violation allegations, or an addendum of disagreement by any reviewer on the recommended findings. Fifth, any internal investigation involving an allegation that was the subject of a District Attorney or Public Defender misconduct referral must be reviewed by the Bureau of Risk Management Deputy Chief and Chief of Police, regardless of the recommended findings.
In addition to the Department’s work directly impacting internal investigations on the front end, the Department must also engage in additional work to evaluate the results of its investigations, including investigation outcomes and discipline. While the Department’s creation and use of a written methodology to evaluate the consistency of discipline is significant, the deficiencies identified in the January 2023 report show that inconsistencies may not always be reflected in the data. The Department must, therefore, engage not only in a statistical analysis of the data but in a qualitative analysis when appropriate. For example, the Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 6 of 53 1 2
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Department observed in 2022 (and in previous years) that a greater number of Black officers (in comparison to white officers) received discipline in the form of written reprimand rather than counseling and training. While not a statistically significant difference, it is an observable, apparent difference. In response, the Department began an additional qualitative investigation of these cases. That qualitative investigation remains ongoing. The Department is preparing a supplemental report to its 2022 Investigative Outcome and Discipline Report.
The Department will demonstrate its commitment and ability to sustain substantial compliance by adhering to the practices described above and implementing the new and revised policies listed herein. When the seven policies are in effect, and the Department has further evaluated the consistency of case outcomes and discipline, the parties will reassess their perspectives about the Department’s ability to sustain substantial compliance absent further Court oversight. The parties are optimistic that at that time they will have a more definitive assessment about how close they believe the City is to sustaining on its own substantial compliance with the NSA.
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PLAINTIFFS’ STATEMENT
PLAINTIFFS’ CURRENT POSITION
The Independent Monitor for the OPD has issued one NSA Sustainability Period Report since the last Case Management Conference statement. This sustainability period involves the monitoring of the “last remaining and most critical Negotiated Settlement Agreement Tasks: 2, 5, 20, 24, 25, 26, 30, 31, 34, 41, and 45.” (Dkt. 1525, p. 2)
According to the Third NSA Sustainability Period Report of the IMT, OPD is in compliance with nine of these eleven Tasks:
1. Task 2 (Timeliness Standards and Compliance with IAD Investigations –in compliance when most recently assessed by the IMT in the 79th Report and in compliance
per the Third NSA Sustainability Period Report);
2. Task 20 (Span of Control – in compliance per the Third NSA Sustainability Period Report);
3. Task 24 (Use of Force Reporting Policy – in compliance per the Third NSA Sustainability Period Report);
4. Task 25 (Use of Force Investigations and Report Responsibility – in compliance per the Third NSA Sustainability Period Report);
5. Task 26 (Force Review Board (FRB) – in compliance per the Third NSA Sustainability Period Report);
6. Task 30 (Executive Force Review Board (FRB) – in compliance per the Third NSA Sustainability Period Report);
7. Task 31 (Officer-Involved Shooting Investigations Review Protocol) – in compliance per the Third NSA Sustainability Period Report);
8. Task 34 (Stop Data – in compliance per the Third NSA Sustainability Period Report);
9. Task 41 (Use of Personnel Assessment System (PAS) and Risk Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 8 of 53 1 2
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Management – in compliance per the Third NSA Sustainability Period Report)
As of this writing, OPD is not in compliance with two NSA tasks:
1. Task 5 (Internal Affairs Division (IAD) Complaint Procedures – in compliance when assessed by the IMT in the 79th Report, but “Deferred” in the First NSA Sustainability Period Report and deemed “not in compliance” according to the Second and Third NSA Sustainability Period Reports.)
2. Task 45 (Consistency of Discipline – this was in partial compliance during the First NSA Sustainability Period Report, then was deemed in full compliance during the period covered draft Second NSA Sustainability Period Report. However, in the third, most-recent Sustainability Period Report, the IMT reported “no compliance finding” for this Task. Although this language is vague, and not elaborated upon by the IMT, this is clearly a step down from the IMT’s previous finding of “full compliance”
Plaintiffs’ attorneys agree with the IMT that OPD is not currently in compliance with Tasks 5 and 45. The other nine Tasks that are being actively monitored by the IMT during the Sustainability Period were also in compliance during the period covered by the previous (Second) Sustainability Report and have not materially changed since the January 2023 Case Management Conference in this matter. Plaintiffs will therefore focus on Tasks 5 and 45, which are not in compliance, and which will determine whether OPD is able to achieve full compliance with the NSA and/or continue with the Sustainability Period.
I. Task 5 (Complaint Procedures for IAD)
Task 5 pertains to Complaint Procedures for the Internal Affairs Division, and consists of several subtasks, all of which the IMT had previously found in compliance, including:
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• Task 5.1, which requires that when a citizen wishes to file a complaint, the citizen is brought to a supervisor or IAD, or a supervisor is summoned to the scene.
• Task 5.2, which requires that if there is a delay of greater than three hours in supervisory response, the reason for the delay must be documented.
• Task 5.3, which requires that where a complainant refuses to travel to a supervisor, or wait for one, personnel make all reasonable attempts to obtain specific information to assist in investigating the complaint. • Task 5.4, which requires that specific information be documented on a complaint form and submitted to the immediate supervisor or, in his/her absence, the appropriate Area Commander.
• Task 5.5, which requires that the supervisor or Area Commander notify Communications and forward any pertinent documents to IAD.
On March 23, 2016, the Court issued an Order indicating that irregularities and potential violations of the NSA occurred in IAD investigation 15-0771. Multiple officers were ultimately terminated and disciplined in that matter, which involved the widely reported sexual exploitation of a minor, and the Department’s calamitous handling of the investigation into this matter led to this Court to appoint an outside firm to investigate and report on this matter as well as the departure of the then- Chief of Police.
In the years since this sex scandal and the resultant Swanson Report, the IMT had focused on subtasks 5.15 to 5.19 and subtask 5.21, which address the quality of completed IAD investigations. The IMT determined that subsequent IAD investigations improved to the standards mandated by the NSA and, in February 2022, OPD reattained full compliance with Task 5. It appeared that OPD had made real, sustainable progress with regard to Internal Affairs Investigations.
However, the First OPD Sustainability Report moved the status of Task 5 Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 10 of 53 1 2
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from “in compliance” to “deferred compliance”, and OPD was downgraded to “not in compliance” in Second OPD Sustainability Report. According to the Third Sustainability Period Report, OPD remains out of compliance with this all- important Task.
Specifically, in the Third Sustainability Period Report, the IMT writes:
Investigations conducted by outside investigators retained by the City resulted in several serious disciplinary determinations. These matters called into question the capacity of the Department to investigate its own personnel. The outside investigators also cited a host of systemic and other deficiencies that need to be addressed both in the creation of requisite policies and their resultant implementation. While some progress to remediate these issues has commenced, the Department remains not in compliance with Task 5. (Dkt. 1577, Third Sustainability Period Report, p. 9)
Plaintiffs’ attorneys first became aware of the details of this investigation on January 18, 2023, when the “Conclusions and Recommendations Re: Vehicle Collision and Elevator Discharge Incidents” drafted by the independent law firm, Clarence Dyer, & Cohen LLP (Clarence Dyer, & Cohen Report), were filed in the docket and publicly disclosed in full. (Dkt. 1564, “Clarence Dyer Report”) We are mindful that we all have roles to play in this process that has lasted more than 22 years. We may have disagreements but that should not be read as reflective of our lack of respect for one another.
Accordingly, Plaintiffs’ attorneys do not agree with all the findings made by Clarence Dyer because some of these findings were not supported by direct evidence and were more the product of conclusions that were capable of other conclusions based on the same facts. However, we do agree with Clarence Dyer’s general conclusions about the department and their recommendations.
This document echoes the catastrophic failures that plagued OPD at earlier points in the NSA process, and affirmed the IMT’s conclusion that OPD is out of compliance with Task 5. The Clarence Dyer Report documented definitive, Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 11 of 53 1 2
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comprehensive, and pervasive cultural and systemic problems within Department, as well hugely significant failures by individuals in the OPD command staff.
The specific details were elaborated in the public Clarence Dyer Report and were also summarized in Plaintiff’s most recent Case Management Conference Statement. Two other Reports of Investigation by the Clarence Dyer firm were also provided to Plaintiffs’ attorneys -- and other stakeholders, including the Police Commission -- pursuant to a protective order. Although large portions of these documents were subsequently leaked to the press and are now publicly available, Plaintiffs’ attorneys will not comment on the specifics contained therein in this Case Management Conference.
After the public disclosure of these documents, as well as the most recent Case Management Conference before this Court, Mayor Sheng Thao terminated then-Chief of Police Armstrong, citing her commitment “to ensure that the Police Department and the City can prove, once and for all, that Oakland is ready to ensure constitutional policing without federal oversight... in order to finally bring an end to Oakland’s federal oversight – and not risk the investments we’ve made for over 20 years – it’s an absolute requirement that my administration, including the Chief of Police, be able to work closely with the monitoring team and speak credibly before the court.”1
The Clarence Dyer Report published in the Allen docket “identified certain procedural irregularities and possible violations of OPD policy committed by OPD members who conducted the initial criminal and administrative investigations” (Clarence Dyer, & Cohen Report, p. 8), which resulted in a third investigation into the way that OPD’s Internal Affairs and Criminal Investigation Division undertook their investigations of the elevator discharge.
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1 https://www.oaklandca.gov/news/2023/statement-of-oakland-mayor-sheng-thao Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 12 of 53 1 2
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The Clarence Dyer, & Cohen Report concluded that:
During the course of the three confidential Internal Affairs Division investigations referred to above – one for the vehicle collision incident, the second for the elevator discharge incident, and the third for the investigation into the Department’s handling of the elevator discharge – outside investigators encountered multiple deficiencies in process and policy that undermined the full and complete discovery of the facts. While some of these deficiencies stem from gaps in Department policies, other deficiencies flowed from the Department’s failure to follow or implement existing Department policies. Most disturbingly, some of the deficits appear to stem from a failure of leadership and a lack of commitment to hold members of the Oakland Police Department accountable for violations of its own rules… These investigations revealed issues and shortcomings that go beyond the conduct of individual officers to the very question of whether the Oakland Police Department is capable of
policing itself and effectively holding its own officers accountable for misconduct.
(Clarence Dyer, & Cohen Report, p. 9, emphasis NOT original)
Although we do not agree with every word of the Clarence Dyer report, Plaintiffs’ attorneys do agree that there were widespread systemic failures, as well as individual failures by some high ranking OPD personnel, that are incongruous with the letter and the spirit of Task 5 of NSA. The IMT’s Third Sustainability Period Report also highlights “a host of systemic and other deficiencies” (Dkt. 1577, Third Sustainability Period Report, p. 9) that resulted in the IMT’s “not in compliance” finding for this Task.
The Clarence Dyer Report found that the three investigations in its purview “were dogged by a lack of forthrightness by multiple members, both subjects and witnesses, that betrayed a lack of commitment to the pursuit of truth by the Internal Affairs process.” (Clarence Dyer, & Cohen Report, p. 10). This cannot be reconciled with the requirements mandated by Task 5 of the NSA, specifically, or the spirit of the NSA as a whole.
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During the January 2023 Case Management Conference, Judge Orrick stated:
Prior to the next CMC, I expect the City to have adopted each of the recommendations in the report with respect to the Internal Affairs Division and Criminal Investigations Division or to explain why what it has done in the alternative is more effective.” (Dkt. 1570, Transcript of Remote Zoom Video Conference Proceedings, p. 4).
These recommendations were as follows:
a. OPD should require all personnel involved in the investigation, review, supervision, and approval of IAD and CID cases to conform to the recusal standards of applicable policies (Dkt. 1564, p. 11) b. OPD should adopt a policy that requires approval and documentation of all changes to draft Reports of IAD Investigations. (Dkt. 1564, p. 12) c. OPD should adopt a policy that requires all briefings regarding ongoing IAD investigations to be documented. (Dkt. 1564, p. 13) d. OPD should adopt a policy that requires the Chief of Police to read reports of IAD investigations before signing them. (Dkt. 1564, p. 13) e. OPD should adopt a Department-specific policy regarding acceptable personal relationships between sworn members and when and how those relationships must be reported. (Dkt. 1564, p. 13) f. OPD should review its implementation and training regarding the policies governing use by OPD members of OPD-issued cellular telephones and personal cellular telephones for all Department- business and to prohibit the use of personal cellular telephones for work-related communication. (Dkt. 1564, p. 14)
g. OPD should revise its rule regarding physical fitness for duty to explicitly include mental health. (Dkt. 1564, p. 15)
h. OPD, through its Office of Internal Accountability, should review and improve its policies, practices, and training regarding investigations of members accused of criminal misconduct to ensure rigor and accountability. (Dkt. 1564, p. 15)
As of the filing of this Case Management Statement, the Oakland Police Department has made progress on the drafting of these policies. Plaintiffs’ counsel will have a more updated account of this progress at the time of the Case Management Conference. Plaintiffs’ counsel also believe that these policies should be approved by the Monitor, officers should be trained by the OPD in these policies, and then a suitable period should take place subject to Monitor approval where the OPD is certified as in compliance with these tasks.
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The Clarence Dyer Report concludes that “The multiple failures, at every level, to hold this sergeant responsible, belie OPD’s stated position that it can police itself and hold its members accountable for misconduct. Instead, investigators were left with the impression that the system is designed not to uncover the truth and hold those who commit misconduct to account, but instead to find ways to minimize misconduct such that OPD members are able to avoid serious discipline.” (Dkt. 1564, p. 16). OPD has therefore breached the terms of the Sustainability Period for a second consecutive Sustainability Report Period, and it is clear to Plaintiffs’ attorneys (and, per the Third Sustainability Report, the IMT) that OPD is still not currently in compliance with Task 5.
The OPD’s misuse and overuse of “unfounded” findings on Internal Affairs cases has been a problem that has been raised by Plaintiffs’ attorneys since the start of the Negotiated Settlement Agreement. Unfortunately, this problem has not gone away and persists to this day.
California law prohibits public discussion of the specifics of many Internal Affairs findings. We will be happy to discuss this situation further with appropriate safeguards consistent with California law.
We are mindful that unfounded Internal Affairs findings cannot be used for any reason including to identify problem officers in Risk Management meetings. (as opposed to findings of not sustained and sustained).
We are sure that this is a motivation for the excessive use of “unfounded” by the Internal Affairs Bureau. Until this problem is rectified, we cannot agree that OPD is in compliance with Task 5.
II. Task 45 (Consistency of Discipline Policy)
Task 45 requires that discipline is imposed in a fair and consistent manner.
Even though the IMT determined that OPD was in compliance with this NSA Task during the Second Sustainability Period, Plaintiffs’ attorneys were unable to make a recommendation on OPD’s compliance with this Task at the time of the most recent Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 15 of 53 1 2
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(January 2023) Case Management Conference.
As noted in Plaintiffs’ January 2023 Case Management Conference Statement, the Clarence Dyer Report detailed a scenario where discipline was imposed without a full and complete review of the facts uncovered by the Internal Affairs Division. A discipline process where the Chief of Police did not read Reports of Investigation before signing them could not be compatible with Task 45.
Similarly, a scenario where the IA commander could demand revisions to a Report of Investigation (ROI) over the objections of his subordinates without any documentation about such a directive was antithetical to the goal of fair and transparent discipline within the Department.
It is therefore unsurprising that the IMT’s Third Sustainability Report cites the Clarence Dyer Report as a basis for downgrading OPD’s compliance status with Task 45 to “no compliance finding.” The IMT found that:
Systemic and other deficiencies cited by the outside investigators were exacerbated by investigative and disciplinary decisions, which were premised on the status and positional considerations of both violators and decision-makers. (Dkt. 1577, Third Sustainability Period Report, p. 32)
The Clarence Dyer Report also noted “investigators were left with the impression that the system is designed not to uncover the truth and hold those who commit misconduct to account, but instead to find ways to minimize misconduct such that OPD members are able to avoid serious discipline.” (Clarence Dyer, & Cohen Report, p. 15).
This echoes some of the findings of the Hillard Heintze disparity study.
Although that study had widely acknowledged data problems that rendered some of the resultant analysis functionally useless, there was also a survey element unrelated to data-scraping from OPD’s risk management systems.
This portion of the Hillard Heintze Disparity Study found that OPD personnel believe “who you know, and to which cliques you belong, influence Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 16 of 53 1 2
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whether an investigation will be sustained and what level of discipline will be administered”2, and that the “IAD and disciplinary processes are not transparent.” (Hillard Heintze Disparity Study, p. 23). It also found the IAD policy which allowed sergeants to be “fact finders and adjudicators has the potential to lessen an investigator’s neutrality” and that this system “is not consistent with promising practices used in departments similar in size to Oakland.” (Disparity Study, p. 11).
The Hillard Heintze study also determined that just 18.68% of sworn respondents believe that OPD’s disciplinary process is fair, while 81.32 percent of respondents disagreed with the statement “OPD’s disciplinary process is fair.” (Disparity Study, p. 17)
2 This has also been highlighted by the Police Commission in the run-up to this Case Management Conference. Attachment 2 to the Police Commission Special Meeting for 03/30/23 Agenda Packet notes that “Related to Task 45…OPD needs far more granular information about the widely expressed perception of unfair discipline, including information about what OPD employees perceive as “cliques.” The Commission currently has an Ad Hoc Committee that is tasked with investigating allegations made by the members of the Oakland Black Officers Association (OBOA) that they are subject to more severe discipline than other officers (Police Commission Special Meeting, p. 11 of 25).” Plaintiffs’ attorneys agree with the Commission’s request for more granular data regarding perceived discipline disparities within the Department.
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Similarly, the survey data revealed that nearly 80% of OPD respondents “agreed or strongly agreed that rank plays a factor in determining the outcome of an internal investigation and the determination of discipline.” (Disparity Study, p. 22)
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The above charts and data speak to ongoing problems within the Oakland Police Department related to Task 45 and consistency of discipline. The incident involving an OPD sergeant, as detailed in the Clarence Dyer report, is a concrete example of discipline disparities that a super-majority of OPD personnel believe to be problematic. Although personnel issues prevent Plaintiffs’ attorneys from specifying every reason for our view in this matter, City of Oakland officials with access to this entire investigation (as well as the IMT) know the details of why we feel this way. The portion of the Clarence Dyer report in the public Court docket shows that the minimal discipline the sergeant initially received – based on an IA process that command staff meddled in and/or intentionally averted their gaze from – was blatant favoritism related to the Sergeant’s status within the Department and specific community interest groups.
A discipline system that is “unfair” in the eyes of more than five of every six employees is untenable, and not up to the standard mandated by Task 45 of the NSA. Indeed, during Plaintiffs’ attorneys many years of involvement with OPD, we have noticed that supervisors and command staff often receive lighter discipline than rank-and-file officers. The Clarence Dyer, & Cohen Report’s findings regarding the vehicle collision and subsequent investigatory and disciplinary process is an illustrative example of exactly this dynamic.
Finally, recent IA data has shown that African Americans are disproportionately disciplined in “unintentional failure” to refer citizens who wish to file a complaint to the appropriate complaint agency. It is concerning to us that this area—one that gives sergeants the most discretion to file any complaint against a subordinate—is the single most significant area where racial disparities appear.
This must be remedied (as noted in our joint statement) and be subject to appropriate review.
Accordingly, the Department remains in breach of the parameters of the Sustainability Period as originally set out in the Negotiated Settlement Agreement.
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III. Conclusion
The IMT has determined that OPD is out of compliance with Task 5 and has downgraded OPD’s compliance with Task 45 to “no compliance status”. Plaintiffs’ attorneys believe OPD is not in compliance with Task 45.
In January of this year, OPD was in full compliance with ten of the eleven NSA Tasks. As of this writing, OPD is compliance with only nine. Multiple command-level officers have been disciplined for rules violations that directly impact NSA Tasks 5 and 45. The Department is, objectively, backsliding.
Tasks 5 and 45 are foundational to the NSA, and to constitutional policing. If the OPD cannot perform competent Internal Affairs Investigation or discipline its own officers fairly, there will always be questions as to whether they can police themselves, or provide equal justice in the community they serve. Plaintiffs’ attorneys will never agree that the OPD has attained compliance if members of the Command Staff attempt to hide misconduct from appropriate supervisors (including the Police Commission), and/or impose inconsistent discipline based on who you know, your race, or what rank you have. These are concrete, incontrovertible breaches of the letter of NSA Tasks 5 and 45, respectively.
It is also clear that Court and IMT oversight is still required. OPD is not in compliance with the NSA. Plaintiffs’ attorneys therefore urge the Court to modify the Sustainability Period until, at the very least, OPD regains full compliance with each and every NSA Task.
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CITY’S STATEMENT
OVERVIEW
For the past nine months the City has sustained substantial compliance with all but two NSA tasks, Task 5, Internal Affairs Complaint Procedures, and Task 45, Consistency in Discipline Policy. To the extent that its sustained compliance continues through the one-year mark on Tasks 20, 24, 25, 26, 30, 31, 34, and 41, the City asks that the Court remove these eight tasks from further affirmative assessment by the Monitoring Team after May 31, 2023, similar to the previous reduction in task assessments imposed by the Court in its May 2022 Order. The City asks that after June 1, 2023, the Monitoring Team affirmatively assess only the three tasks related to internal investigations: Tasks 5, 45, and 2, Internal Affairs Timelines. While the City expects that the Department will sustain compliance with Task 2 timelines through the one-year sustainability period, it nonetheless appreciates how closely Task 2 is tied to Task 5. The Department must ensure that its improvements in the quality of its internal investigations do not result in a decline in timeliness. Reducing the number of affirmatively assessed tasks will allow the City to focus more of its resources where they are needed the most in the immediate term.
In this status report, the City discusses the following: (1) strengthening the Department’s internal investigation processes (Task 5), (2) consistency of discipline policy (Task 45), (3) internal affairs timelines (Task 2), (4) the Department’s risk management program and use of stop data to reduce racial disparities (Tasks 34 & 41), (5) officer recruiting, and attrition, and diversity, and (6) force and force investigations (Tasks 24, 25, 26 & 30).
I. STRENGTHENING INTERNAL INVESTIGATIONS PROCESSES
(TASK 5)
The Department has fully completed one of eight of the outside investigator’s recommendations. The additional seven recommendations involve developing new Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 21 of 53 1 2
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policy or revising existing policy. The Department has begun practices to immediately address the deficiencies identified by the outside investigator while it completes policy development and revision.
A. THE DEPARTMENT IS ALREADY EMPLOYING PRACTICES TO
PREVENT THE DEFICIENCIES IDENTIFIED BY THE OUTSIDE
INVESTIGATOR AND TO STRENGTHEN INTERNAL
INVESTIGATIONS IN THE IMMEDIATE TERM
The Department completed the additional training on DGO I-19, Electronic Communication Devices (Sep. 20, 2022), regarding the use of Department-issued versus personal cell phones for work-related purposes. See Ex. 1, Memorandum re I- 19 Training Review and Update (Mar. 2023). The Department also implemented certain practices in response to the outside investigator’s other recommendations until formal policy is developed or revised.
Since Chief Allison assumed his role, he has been reading all internal investigation reports with any sustained findings. Consistent with the parties’ joint statement and the Department’s proposed policy changes, moving forward Chief Allison must continue to read all reports of investigation with recommended sustained findings that could result in termination (i.e., has ‘T” as one of the possible consequences on the Discipline Matrix; this includes Manual of Rules violations for obedience to laws felony/serious misdemeanor and DUIs, and use of force), or recommended sustained findings for obedience to laws misdemeanor/infraction. All internal investigation briefings are documented with notes of the briefings. Any significant changes to investigation reports are approved and the change and approval is documented and saved in the investigation file and in the chronological log. These changes include downgrade of a subject to a witness, removal of a subject, change or removal of a manual of rules allegation, and changes to or disagreement with recommended findings. The Department consults the City’s human resources risk management team to follow the City’s process for psychological fitness for duty assessments. The Department follows the City’s “anti- Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 22 of 53 1 2
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fraternization” instruction and local ordinance regarding conflicts and reporting relationships. See City of Oakland Administrative Instruction (AI) 72 (Oct. 28, 2005); Oakland Municipal Code, Chapter 2.40, Prohibition on Nepotism in City Employment, sec. 2.40.030 Disclosure of Relationships, sec. 2.40.040, Prohibited Supervisory Relationships. These practices will address in the immediate term the deficiencies identified in the outside investigator’s report.
In addition to practices directly responsive to the outside investigator’s recommendations, the Department is taking additional measures to strengthen its internal investigation processes in the immediate term. Prior to presentation to the Chief, a Deputy Chief reviews all reports of investigation with recommended sustained findings that could result in termination or for obedience to laws misdemeanor/infraction (the same category for which the Chief reads the investigation reports). The Bureau of Risk Management Deputy Chief reviews cases involving recommended not sustained findings on any allegation that could result in termination if sustained or obedience to laws misdemeanor/infraction. The Chief of Police and Bureau of Risk Management Deputy Chief review internal investigations involving any allegation that was the subject of a prosecution or defense (e.g., District Attorney or Public Defender) misconduct refer, regardless of the recommended finding. Investigation presentation templates now prominently display on the first page if a case involves the downgrade of a subject to a witness, removal of a subject, change or removal of a manual of rules allegation, and changes to or disagreement with recommended findings. High-profile case briefings to the Chief, which include but are not limited to IAD and CID investigations of members accused of criminal conduct, occur at least monthly with a notetaker.
The Department has also taken measures to improve communication about internal investigations with the Commission and CPRA. The Department has granted the CPRA Director direct access to the IAD Vision database. The OIG already has direct access to Vision. The Department will provide a tutorial to the Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 23 of 53 1 2
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CPRA Director about use and navigation of Vision. In addition, the Department and, temporarily until the policy is in effect, the City Attorney’s Office, will advise the Commission and CPRA of any new proposals to hire outside investigators to conduct internal investigations, and provide update status reports on subjects and misconduct allegations under consideration in any outside investigations already in progress. In addition, any new third-party investigation contract must include a term that allows the Commission and CPRA to obtain status updates directly from the investigator (the content of updates may be limited to ensure independence of any parallel ongoing or anticipated CPRA investigation). Finally, CID has expanded the information it provides City leadership and oversight bodies including the Commission and CPRA when a Department member has been arrested or cited or is under investigation for criminal conduct. Ensuring that the Commission and CPRA are aware of high-profile investigations early on will allow the Commission to promptly identify internal investigations that may not be charter-mandated CPRA cases but nevertheless may warrant Commission direction for CPRA to investigate or spur the Commission to prioritize certain document requests or policy reviews. Of course, all current measures employed by the Department are based on its policy proposals and may ultimately be modified in final formal policy approved by the Police Commission.
In addition to measures that the Department has taken to strengthen its internal investigation processes on the front end, the City’s Office of Inspector General (OIG) is responsible for identifying and addressing deficiencies in internal investigations on the back end, through audits of Tasks 5 and 45 (and assessing compliance with all NSA tasks), even after Court oversight ends. See Oakland City ///
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Charter, sec. 604(f)(5).3 As part of its audit function, the OIG prepares an annual report on the following items: the Department's processes and procedures for investigating alleged misconduct; the Department's processes and procedures for determining the appropriate level of discipline for sustained findings of misconduct; the CPRA's processes and procedures for investi gating alleged misconduct; the Agency's processes and procedures for determining the appropriate level of discipline for sustained findings of misconduct; trends and patterns regarding Department training and educ ation, and the Department's use of any early warning system(s); training and/or policy issues that arise during the investigations of complaints; and trends and patterns regarding use of force and Department sworn employee -involved shootings. Oakland Munic ipal Code, sec.
2.45.120.
The OIG has been engaged with the Department regarding proposed policy changes in the immediate term, and the City appreciates the OIG’s continuing feedback and assistance. The OIG’s annual report cycle is based on the City’s fiscal calendar and, therefore, the OIG’s annual report pursuant to local ordinance is expected to be completed in or about September 2023 . As part of the process, however, the OIG has begun collecting data and background information from the Bureau of Risk Management about the Department’s internal investigat ions and complaint procedures. The OIG has also met with Department Human Resources and the Training Division commander. The OIG is preparing additional information requests to assist in its evaluations.
The Department estimates it will take four months before final policies mandating internal investigation procedures are published. Immediately
3 The OIG has aimed to avoid audits that duplicate the Monitoring Team’s work.
This avoids competing protocols and findings and results in assessment of a greater number of Department practices. The OIG’s forthcoming audit on Task 42, the Department’s Field Training Program has been delayed due to the recent ransomware attack on the City. The OIG expected to complete the audit in April 2023 but it now estimates completion and publication in or about May 2023.
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implementing practices responsive to the outside investigator’s recommendations and employing additional measures identified by the Department will ensure rigor and integrity in the Department’s internal investigation processes.
B. MANDATING PRACTICES IN POLICY WILL PROVIDE LONG-
TERM SUSTAINABILITY OF PROTECTIONS AND
IMPROVEMENTS
The Department remains in the process of developing and revising policy in response to deficiencies identified in the outside investigator’s January 2023 report and the corresponding recommendations. The Department’s Office of Internal Accountability is leading and coordinating the Department’s review of Department practice and policy regarding CID and IAD investigations of members accused of criminal misconduct, as well as policy, practice, and training related to improving the overall rigor and integrity of the Department’s internal investigations processes.
In most instances, the OIA has identified multiple Department policies or related policy documents that it has recommended the Department develop or revise to effectively address the identified deficiencies. See Chart 1: Department Progress in Response to Recommendations, below. The OIA has also recommended additional revisions to policies under review to further strengthen the Department’s internal investigation processes beyond revisions that are simply directly responsive to the recommendations. The Progress Chart below shows which policies are being developed or revised in response to each recommendation and the status of each policy or recommended measure. The outside investigator’s recommendations are shaded in green.
The Department’s proposal is to directly implement six of the eight recommendations (including the completed training on the use of Department- issued versus personal cell phones). The Department proposes a variation of two of the recommendations which the Department believes will more effectively and efficiently address the underlying issues from which they originated. ///
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1. THE DEPARTMENT’S TWO PROPOSED ALTERNATIVE
RECOMMENDATIONS
First, instead of mandating that the Chief read all reports of internal investigations, the Department has proposed draft policy that requires the Chief to read and sign a particularly significant subset of case reports. Specifically, the Department has proposed that at a minimum, the Chief must read all reports with a recommended sustained finding for any allegation that could result in termination (i.e., has ‘T” as a possible consequence on the Discipline Matrix; this includes Manual of Rules violations for obedience to laws felony/serious misdemeanor and DUIs, and use of force), or a recommended finding of sustained for obedience to laws misdemeanor/infraction. In addition, the Department has proposed revisions to the investigators’ presentation outline to ensure that certain facts and circumstances are highlighted for discussion. These revisions include adding an executive summary at the beginning of the outline that prominently flags whether the case involves any of the following circumstances: subject removed or downgraded to witness, deletion or change of any alleged Manual of Rules violations, or an addendum of disagreement by any reviewer on the recommended findings. The Department has also proposed Deputy Chief-level review for cases involving any allegation with a recommended finding of either sustained or not sustained on any allegation that could result in termination and obedience to laws misdemeanor/infraction. Finally, under this proposal, the Chief of Police and Bureau of Risk Management Deputy Chief review internal investigations involving any allegation that was the subject of a prosecution or defense (e.g., District Attorney or Public Defender) misconduct refer, regardless of the recommended finding. The Department believes this combination of measures will result in greater improvement in the rigor of its internal investigations and ensure accurate reporting of key facts and circumstances that frequently necessitate further discussion and explanation. The Department’s proposed alternative provides layers Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 27 of 53 1 2
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of redundancy that the Department believes will strengthen its internal investigation processes more than simply having the Chief read all investigation reports. In addition, it allows the Chief at least some flexibility in prioritizing the many and varied items the Chief must handle on a day-to-day basis.
The second recommendation for which the Department proposes a variation is the recommendation that the Department should revise its rule regarding physical fitness for duty to explicitly include mental health. Expanding the Manual of Rules (MOR) fitness for duty definition which currently includes only a physical fitness requirement to expressly include psychological fitness for duty may result in members’ mental health issues being viewed and treated as misconduct. Instead, the Department proposes creating an Information Bulletin (IB) that will include information about the City’s policy and practice involving psychological fitness for duty evaluations but tailored to the Department. The Department currently follows the City’s practice under the direction of City Employee Relations and Risk Management. The City’s practice is referenced in its administrative instruction regarding procedures for providing reasonable accommodation to job applicants and employees, see AI-139 (Jul. 1, 2009). The Department anticipates the IB will reflect who may request a fitness for duty evaluation of an officer, under what circumstances an officer may be required to undergo an evaluation, an officer’s obligations when an officer is directed to undergo an evaluation, the Department’s obligations with regard to confidentiality of evaluations and requests for evaluations, and the officer’s and Department’s rights and obligations involving a return to limited or full duty following an evaluation. The idea behind proposing an IB is to educate the Department and all members about the psychological fitness for duty evaluation process to empower the Department to exercise its ability to ask for such evaluations when appropriate and to support its members by providing transparency about the process and communicating unequivocally that they will not be disciplined solely on the basis of concerns about psychological fitness. The IB will Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 28 of 53 1 2
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also aim to provide a description of mental healthcare and wellness resources available to Department members.
Chart 1: Department Progress in Response to Recommendations Recommendation
New or Revised
Policies and Related
Documents
Status
OPD should adopt a
Department-specific policy
regarding acceptable
personal relationships
between sworn members
and when and how those
relationships must be
reported.
DGO D-22, Personal
Relationship
Disclosure Policy (new)
Incorporated feedback from
Monitoring Team and
plaintiffs’ counsel.
Next step is to send these to
the Police Commission for
review.
OPD should require all
personnel involved in the
investigation, review,
supervision, and approval
of IAD and CID cases to
conform to the recusal
standards of applicable
policies.
CID Recusal Policy 23-
02 (rev.)
IAD Meeting
Attendance Roster
(rev.)
Investigator and
Reviewer
Conflict/Recusal Forms
(rev.)
Incorporated feedback from
Monitoring Team and
plaintiffs’ counsel.
Next step is to send these to
the Police Commission for
review.
OPD should adopt a policy
that requires approval and
documentation of all
changes to draft Reports of
IAD Investigations.
IAD Policy and
Procedure Manual 23-
01 (rev.)
Training Bulletin V-
T.01, Internal
Investigation
Procedure Manual
(rev.)
Internal investigation
report template (rev.)
Addendum [reviewer
disagreement]
template (rev.)
Executive
Sent to Monitoring Team
and plaintiffs’ counsel for
feedback. Working on
incorporating feedback and
considering additional
changes.
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Summary/Presentation
template (rev.)
Command Review
Checklist (rev.)
OPD should adopt a policy
that requires all briefings
regarding ongoing IAD
investigations to be
documented.
IAD Policy and
Procedure Manual 23-
01 (rev.)
Sent to Monitoring Team
and plaintiffs’ counsel for
feedback. Working on
incorporating feedback and
considering additional
changes.
OPD should adopt a policy
that requires the Chief of
Police to read reports of
IAD investigations before
signing them.
IAD Policy and
Procedure Manual 23-
01 (rev.)
[Note: Department
proposing an
alternative. Chief
mandated to read
subset of sustained
cases. Deputy Chief
review of subset of
sustained cases as well
as subset of not-
sustained cases.
Executive summary of
presentation outline
displays facts and
circumstances that
may raise red flags.]
Sent to Monitoring Team
and plaintiffs’ counsel for
feedback.
Working on incorporating
feedback and considering
additional changes.
OPD should review its
implementation and
training regarding the
policies
governing use by OPD
members of OPD-issued
cellular telephones and
personal cellular
telephones for all
Department-business and
to prohibit the use of
personal cellular
telephones for work-related
Updated training
PowerPoint.
Conducted additional
lineup training.
Created quiz for
members.
Completed. See Ex. 1.
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communication.
OPD should revise its rule
regarding physical fitness
for duty to explicitly
include mental health.
Information Bulletin
(IB) re Psychological
Fitness for Duty
Assessments (new)
[Note: Department
proposing an
alternative: an IB
rather than changing
the Manual of Rules
(MOR) fitness for duty
definition.]
Department working on
initial draft.
OPD, through its Office of
Internal Accountability,
should review and
improve its policies,
practices, and training
regarding investigations of
members accused of
criminal misconduct to
ensure rigor and
accountability.
DGO M-4.1, Criminal
Investigation of
Department Members
and Outside Sworn
Law Enforcement
Personnel (rev.)
CID Investigative
Training Program 23-
01 DGO I-19, Electronic
Device Policy (rev.)
[Additional TBD]
Sent DGO M-4.1 and CID
Investigative Training
policies sent to Monitoring
Team and plaintiffs’ counsel
for feedback.
OIA policy review ongoing.
Improve communication
with CPRA and OPC.
Facilitate CPRA’s ability to
select appropriate cases for
parallel investigation
without jeopardizing
CPRA’s ability to conduct
truly separate, independent
investigations.
IAD Policy and
Procedure Manual 23-
01 (rev.)
DGO M-4.1, Criminal
Investigation of
Department Members
and Outside Sworn
Law Enforcement
Personnel (rev.)
Sent both policies to
Monitoring Team and
plaintiffs’ counsel for
feedback. Working on
incorporating feedback
received on IAD Policy and
Procedure.
///
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II. CONSISTENCY OF DISCIPLINE POLICY (TASK 45)
In March 2023, the Department published its 2022 Internal Investigation Outcome and Discipline Report. See https://cao-
94612.s3.amazonaws.com/documents/2022-Internal-Investigation-Outcome-and- Discipline-Report.pdf (Mar. 2023) (last viewed Apr. 1, 2023). The annual report was the Department’s first opportunity to employ its working methodology. The most straightforward part of the methodology is to determine whether there are statistically significant differences in case outcomes or officer discipline based on race, rank, or gender. There were no statistically significant disparities based on race, rank, or gender in 2022 case outcomes or officer discipline. See id. at 14, and Table 1.
Table 1: Snapshot of 2022 Internal Investigation Outcomes and Discipline Data, from February 2023 Citywide Risk Management Meeting These initial overall findings across all 2022 cases did not end the Department’s analysis. In the past, the Department has observed differences on discipline imposed on Black officers for lower level misconduct when compared to Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 32 of 53 1 2
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white officers. Specifically, the Department previously observed that the Department tended to impose counseling and training discipline more often for misconduct committed by white officers, while Black officers might more frequently receive a written reprimand. See id. at 12. Written reprimand is viewed as greater discipline on the discipline spectrum than counseling and training. These observed differences involved a very small number of cases; the Department could not test whether such a small difference was statistically significant. But the Department remained keenly aware of these differences and has always been clear about its intention to continue to look for such differences in the data even though the number of cases involved may not permit the Department to determine if the differences are statistically significant. Therefore, the Department purposely examined the case data to determine whether there were any similar differences in the 2022 discipline. The Department observed some differences.
The 2022 data showed that Black officers more frequently received written reprimand discipline in comparison to white officers who received counseling and training discipline for the same misconduct violations. The overall difference in Class II allegation outcomes was Black officers received counseling and training in 5 instances and written reprimand in 5 instances, while white officer received counseling and training in 18 instances and written reprimand in 2 instances. See id. On the one hand, these cases reflect twice as many sustained cases for white officers and the number of cases in each category is too small to conduct a statistical analysis; but on the other hand, we cannot ignore the observed apparent difference.
Thus, the Department further examined other case details to determine if it could explain this apparent difference. The Department had some success learning more about the circumstances behind the discipline imposed in each case.
As an initial matter, although these cases all involved Class II misconduct, the sustained findings spanned several different rules violations. Thus, the Department looked for direct comparisons for discipline meted out to Black and Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 33 of 53 1 2
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white officers for the same rule violation. See id. at 12-13. There, the Department zeroed in on violations for failure to accept or refer a complaint (unintentional) where 9 white officers received counseling, in comparison to 3 Black officers who received counseling and 2 Black officers who received written reprimand. In addition, the Department noted that for this particular rule violation, more Black officers received suspensions: 7 Black officers were suspended for this misconduct while only one white officer was suspended. Although as an overall matter Black officers are not suspended more often than white officers, the Department’s drill- down investigation into this particular rule violation led them to find and focus in on this additional patent difference. See id. at 13.
The Department’s analysis led it to discover that the difference in the 2022 discipline for Black and white officers for failure to accept or refer a complaint (unintentional) was explained by officers’ prior similar misconduct. Officers who had prior violations of the same rule received greater discipline. Thus, as an initial matter there is a race neutral explanation for the difference in discipline imposed.
But this did not end the Department’s inquiry. The Department’s next question was: are Black officers more likely than officers of other races to have allegations lodged against them for failing to accept or refer a complaint? And, inversely, are white officers less likely to have allegations lodged against them for failing to accept or refer a complaint? The Department recognizes both that these are important questions to ask, and difficult questions to answer. The Department is continuing its analysis and intends to publish a supplemental report to the 2022 Internal Investigation Outcomes and Discipline Report to further provide insight into these issues. While the Department is not certain at this time where the analyses may lead, the Department’s next steps include a review of investigating sergeants’ sustained rates by race for failure to accept or refer a complaint. Id. at 15.
In its most recent report, the Monitoring Team criticized the Department for having “yet to create a separate, stand-alone [technical] report” that in part might Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 34 of 53 1 2
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serve as a “basis for tracking discipline disparity over time.” Dkt. 1578, Third NSA Sustainability Report of the Independent Monitor 32 (Apr. 3, 2023) (corrected report). In its annual internal investigation outcomes and discipline report, the Department aims to share its step-by-step approach as it follows its written working methodology, including sharing all of its data analysis. When possible, the Department prefers to include its data analysis within the text of the report or in an appendix rather than prepare a separate, technical report. With a single report, readers have context for each dataset the Department prepares and each statistical test the Department uses. In addition, when the Department developed its working methodology it specifically considered whether it should include some analysis of aggregate data beyond one year. After discussing this possibility with researchers from the Monitoring Team and Stanford, the Department intentionally decided not to do aggregate data analysis because of the significant difference in data collection and policy in the years preceding 2022 and to focus on looking for patterns that are the result of current or more immediate practices. Of course, the Department’s methodology is a working methodology. The Department purposefully used that title because it intends to continue to modify the methodology as appropriate to strengthen its analyses. But there is no reason that the Department cannot use its annual reports and analysis therein as the basis to track disparity over time.
Employing its primarily data-driven methodology to analyze investigation outcomes and findings enables the Department to consistently identify and investigate statistically significant disparities and observed differences across all case outcomes and officer discipline. The Department appreciates, however, that this methodology, while sound and necessary, may not capture all inconsistencies in case outcomes or discipline. For example, one or two cases that are poorly investigated or where favoritism is employed are unlikely to trigger anomalies in the data or reveal a pattern of inconsistency. That is why strengthening measures to improve the quality of the Department’s investigations, including case review Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 35 of 53 1 2
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redundancies, as well as having an after-the-fact audit of internal investigations is also necessary to ensure consistency and fairness in case outcomes and discipline.
The measures the Department is taking to improve its internal investigation processes, therefore, will contribute not only to compliance with Task 5 but also Task 45. Whether these policy measures are truly “foundational issues” of Task 45 versus Task 5 is not a distinction worth debate. See id. The City’s work to strengthen its internal investigations practices will certainly benefit aspects related to both tasks and, more importantly, to both appropriate and equitable officer accountability.
The City is optimistic that once it completes its supplemental investigation of the subset of cases for failure to accept or refer a complaint (unintentional) and implements measures designed to ensure rigor and integrity in the Department’s internal investigations, that the Monitoring Team will replace its “no compliance finding” with the “in compliance” finding previously earned by the Department.
III. INTERNAL AFFAIRS TIMELINES (TASK 2)
The Department remains in compliance with Task 2. Id. at 3. In the fourth quarter of 2022, the Department timely completed 88% of Class I and 99% of Class II investigations. Id. The Department continues to routinely complete the discipline recommendation process on all cases with sustained findings within 30 calendar days as required by policy. Id.
IV. THE DEPARTMENT MAINTAINS AN EFFECTIVE RISK
MANAGEMENT PROGRAM (TASKS 34 & 41)
The Department’s risk management program continues to provide a valuable foundation to discuss issues involving individual officers as well as patterns among officers and data. The Department’s effective use and understanding of data and information in the risk management process is reflected in commanders’ selection of and expansion on appropriate and meaningful topics outside of the data analysis that typically constitutes the central focus of risk management meetings. The Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 36 of 53 1 2
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Monitoring Team complimented the Department on these practices in its most recent report, making reference to specific observations to the February 2023 risk management meetings:
The Captains and their staff were all engaged in a productive discussion focused on risk – a discussion that extended to include consideration of the implications of current crime levels on officer activity. That has not been a regular agenda item for these meetings.
There was also a significant focus on how younger officers could benefit from understanding and engaging with the risk management process.
It is also noteworthy that, early in the meeting, the Acting Chief emphasized the importance of the PAS process for helping officers to be successful in their careers. That became a significant focus in the meetings and is a direct reflection of an element of risk management that is emphasized in the NSA.
Id. at 30. The Department’s comfort with its risk management program4 shows. Command staff and supervisors have advanced their discussions “beyond what is available in the Vision database” and developed flexibility in their approach to analyzing and using data and information to identify and mitigate Department risk. See id. at 29.
A. THE DEPARTMENT CONTINUES TO MEANINGFULLY USE
STOP DATA AS PART OF ITS RISK MANAGEMENT PROCESS
The Department has long recognized that stop data, for all stops but particularly for non-dispatch stops, “represents potential risk consistent with the risk management interests of the Department.” Dkt. 1557, Second NSA Sustainability Period Report of the Independent Monitor 28 (Dec. 22, 2022). As a result, stop data has been fully integrated with the risk management process and includes reviews of dispatch and non-dispatch stops, actions taken including searches, and outcomes including citation or arrests or noting that no action resulted from the stops. The Department routinely evaluates and discusses stop data, including the reflected impacts of policing on various racial or ethnic groups. Figure 1, below, is
4 The Department’s risk management program operates pursuant to DGO R-01, Risk Management (published Apr. 2022). Although the policy was published in April 2022 mandating adherence to certain practices and timelines, the Department had already employed many of those practices, some for as long as several years. See, e.g., Dkt.1565, Joint Case Management Statement 32 (Jan. 23, 2023).
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an example of a typical Citywide Risk Management slide displaying and integrating related datapoints to help the Department assess if officers’ actions are consistent with Department directives and priorities and how those actions impact various racial populations.
Fig. 1, Slide from Feb. 2023 Citywide Risk Management Meeting The Department has used stop data in this manner to develop effective strategies to reduce stops of African Americans, a population historically overrepresented in law enforcement actions. The Department has consistently reported to the Court on its non-dispatch stop rate as way of tracking its progress.
In the fourth quarter of 2022, the Department’s African American non-dispatch stop rate was 42%. See OPD Quarterly Stop Data Report Q4 2022 4, https://www.oaklandca.gov/resources/2022-stop-data-and-reports (last visited Mar. 29, 2023). That rate was slightly lower for non-dispatch stops that were not intelligence led.5 For non-dispatch, non-intelligence led stops, the African American
5 A non-dispatch stop is a stop made because of an officer observes a violation of the law and chooses to initiate contact. An example would be an officer observes a vehicle going through a red light without stopping. OPD Quarterly Stop Data Report Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 38 of 53 1 2
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stop rate fell below 40% for the last two quarters of 2022. See Fig. 2. Prior to 2021, the Department’s African American non-dispatch stop rate was never below 50%.
Since 2021, the Department’s African American non-dispatch stop rate has been below 50% in six of eight quarters. Id.; see also Dkt. 1515, Joint Case Management Statement 54 Fig.4 (Apr. 20, 2022). This is directly attributable to the Department’s use of stop data not only to implement strategies to effectively mitigate risk but to effectively monitor those strategies and modify them as appropriate to ensure sustained long-term change.
V. OFFICER RECRUITMENT, ATTRITION, AND DEPARTMENT
DIVERSITY
The Department continues its strategic outreach efforts to attract and actively recruit officers who reflect the diversity of Oakland, racially and otherwise, and who live in or have meaningful ties to the City. See Oakland Police Dept.
Quarterly Staffing Report (4th Quarter 2022) 10-16 (Feb. 28, 2023), https://www.oaklandca.gov/resources/info-memo (last visited Apr. 1, 2023).
The Department’s recruitment for the 192nd Academy is ongoing; the Department has not commenced any additional academies since our last court hearing. Between October and December 2022, the Department hosted or attended 18 recruitment events. Id. at 15-16. There were 17 in-person events, 11 of which occurred in Oakland, and three online events. See Fig. 2, below. For each event, the
Q4 2022 at 1, supra. Intelligence-led stops are a subset of non-dispatch stops and require officers to possess knowledge from an articulable source that leads to the initiation of a stop. Id. at 2. The source of information may be very specific, such as a named or described suspect, or general information about a recent crime trend tied to a specific location and involved individuals. An officer’s knowledge and intent at the time the stop is initiated is important in determining whether the stop is intelligence-led. An example is officers observe a vehicle with the left front headlight out. Id. The vehicle also matches the description and partial license plate of one involved in a series of recent robberies. They conduct a traffic enforcement stop for section 24400(a) of the Vehicle Code. By using information and intelligence, our efforts are directed at the relatively few people who cause the most harm in our neighborhoods. Id. at 3. Stops based on objective information and specific directives may reduce bias in officer decision-making during non-dispatch stops. The overall reduction of stop activity results in a reduced policing “footprint” within the community. Id.
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Department tracked the number of individuals who showed interest in police officer trainee (POT) positions (graduating from the academy and becoming a sworn officer), the cadet program (part-time positions for young adults attending high school and college to provide an introduction to various sworn and non-sworn positions within the Department), or dispatcher positions (non-sworn). Quarterly Staffing Report (4th Quarter 2022) at 15-16, supra.
4Q2022 Recruitment – Outreach Events
Date Event Location
Number
of
Attendees
Inquiries:
Number and
Type
1-Oct-22 Oaktober Fest 3401 Fruitvale Ave
Oakland
200 POT 15
Dispatcher 4
Cadet 3
2-Oct-22 Oaktober Fest 3401 Fruitvale Ave
Oakland
200 POT 5
Dispatcher 2
Cadet 2
4-Oct-22 Criminal
Justice Career
Fair
25800 Carlos Bee
Blvd
Hayward
200 POT 30
Dispatcher 15
Cadet 10
8-Oct-22 Black College
Expo
NRG Park
Houston, TX
600 POT 25
Dispatcher 3
Cadet 2
13-Oct-22 Travis Air
Force Base
Career Event
Travis AFB
Fairfield
300 POT 5
Dispatcher 1
Cadet 0
16-Oct-22 Practice
Physical Ability
Test
Merritt College,
Oakland
15 POT 15
Dispatcher 0
Cadet 0
16-Oct-22 OPD Board
Workshop
Police
Administration
Building
10 POT 10
Dispatcher 0
Cadet 0
19-Oct-22 OPD
Recruiting
Zoom Webinar
Online 70 POT 70
Dispatcher 0
Cadet 0
22-Oct-22 Recruiting
Event
Crossfit Gym
San Ramon
30 POT 10
Dispatcher 0
Cadet 0
31-Oct-22 Halloween
Trunk or Treat
Verdese Carter
Park
Oakland
700 POT 25
Dispatcher 25
Cadet 13
5-Nov-22 Asian Cultural
Fair
Lincoln Square
Recreation Center
Oakland
200 POT 3
Dispatcher 2
Cadet 4
12-Nov-22 Black College
Expo
Sacramento State
University
Sacramento
500 POT 10
Dispatcher 2
Cadet 0
13-Nov-22 Oral Board
Workshop
Police
Administration
10 POT 7
Dispatcher 0
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Building Cadet 0
1-Dec-22 Recruit
Military Event
Scottish Rite
Center
San Diego
1,000 POT 30
Dispatcher 25
Cadet 6
3-Dec-22 Oakland
Chinatown
Improvement
Council Winter
Festival
8th & Franklin
Oakland
200 POT 10
Dispatcher 3
Cadet 4
4-Dec-22 Oakland
Chinatown
Improvement
Council Winter
Festival
8th & Franklin
Oakland
350 POT 20
Dispatcher 8
Cadet 6
11-Dec-22 Physical
Training
Workshop
6th & Jefferson
Oakland
8 POT 8
Dispatcher 0
Cadet 0
22-Dec-22 Toys for the
Town
Giveaway
Police
Administration
Building
2,500 POT 3
Dispatcher 4
Cadet 0
Fig. 2.
The Department’s recruiting efforts are contributing to changes in the racial demographics of sworn officers. Department attrition in 2021 and 2022 also contributed to changes in officer demographics. After experiencing an elevated attrition rate in 2021 and the first half of 2022, however, the rate has dropped to just below the average attrition rate observed from 2016-2020. The Department’s sworn officer attrition rate for the second half of 2022 averaged 4 officers per month.
Quarterly Staffing Report (4th Quarter 2022) at 6, supra. Demographic changes have resulted in a complement of officers that more closely resembles the City’s racial demographics. See Table 2.
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Table 2: Race/Ethnicity* by Year – OPD Sworn Staff as of Dec. 31, 2022 Race/Ethnicity
US 2021
Census-
Oakland
Pop.6
OPD
2019
OPD
2020
OPD
2021
OPD
2022
Asian 15.8% 13.3% 18.1% 18.6% 15.2%
Black or African
American 22.7% 16.8% 16.7% 18.7% 20.6%
Hispanic 27% 26.9% 28.2% 28.0% 28.6%
Other 0.1% 6.6% 3.0% 3.3% 3.3%
White 34.4% 36.4% 34.0% 31.5% 28.3%
*Note: “Asian” includes Filipino, “Other” includes Native American and Undeclared Table 2A: Race/Ethnicity and Gender – OPD Sworn Staff as of Dec. 31., 2022 While the Department has typically seen an annual increase in the percentage of female sworn officers over the past several years, the Department did not see an increase in the percentage of female officers in 2022 despite its targeted efforts to recruit and retain women. See Table 3. The Department nonetheless still maintains a greater percentage of female officers than the state and national average. Id. In addition, the race and ethnicity among the Department’s female sworn ranks remains diverse. See Table 2A.
///
6 Population by race in the city of Oakland. Source: United States Census Bureau.
Quick Facts Oakland city, California 2021,
https://www.census.gov/quickfacts/oaklandcitycalifornia (last visited Apr. 1, 2023).
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Table 3: OPD Gender Percentages by Year Compared With 2021 National Percentage – OPD 2022 Sworn Staff as of Dec. 31, 2022
Gender
National
Percentage
20217
OPD
2019
OPD
2020
OPD
2021
OPD
2022
Female 13.3% 13.9% 14.6% 15.7% 14.2%
Male 86.7% 86.1% 85.4% 84.4% 85%
The Department is keenly aware of how few female sworn members hold supervisory positions. As of February 2023, female members comprised only 13 of 111 sergeants, one of 27 lieutenants, and zero of 9 captains. Two of the Department’s four deputy chiefs are women. Thus, while women make up 14.2% of the Department’s sworn membership, they hold less than 10.5% of current supervisory ranks (including the chief and assistant chief positions).
In 2022, the Department committed to the “30x30 pledge,” an effort to increase the percentage of female academy recruits to 30% by the year 2030. The nationwide 30x30 initiative arose in response to the historical underrepresentation of women in law enforcement. The initiative stems from the idea that a group must achieve at least 30% representation to empower that group to influence an organization’s culture.8 The initiative explores actions an agency can take to improve the representation and experiences of women in sworn positions in all ranks. The Department aims to increase its sworn female ranks generally, as well as increase the representation of women in supervisory and commander roles.
In late 2022, the Department’s Office of Internal Accountability (OIA) administered a survey developed by the 30x30 initiative. The initiative provided the
7 2020 national statistics based on
https://www.statista.com/statistics/195324/gender-distribution-of-full-time-law- enforcement-employees-in-the-us/https://www.ppic.org/publication/law-enforcement- staffing-in-california/ (last visited Apr. 1, 2023). Some prominent outlets devoted to advancing women in policing actually calculate the current national percentage much lower, closer to 12%. See, e.g., https://30x30initiative.org (last visited Apr. 1, 2023)
8 https://30x30initiative.org/about-30x30/
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survey template and the OIA modified it slightly to better fit our agency. Exhibit 2 contains the OIA’s March 2023 report on the results of the survey. The report was shared with the Department and the 30x30 initiative. Ex. 2, 30x30 Survey of Sworn Female Officers (Mar. 2023).
The 2022 30x30 initiative survey garnered more responses (56) from sworn female members than the 2022 internal investigations and discipline survey (23).9 Key points and recommendations from OIA are included in Chart 2.
Chart 2: Key Findings and Recommendations Re Sworn Female Members’ Responses to Department’s Fall/Winter 2022 Survey
Finding Recommendation
While most respondents initially
wanted to obtain a specialty
assignment when they became a police
officer, only 53% believe they have
equal access to special/ancillary
assignments.
The Department should study
distribution of female sworn members
throughout the Department and develop
pathways to achieving equitable
representation.
Female supervisors reported the
biggest challenge was a lack of respect
from other supervisors.
The Department should consider hosting
a series of gender awareness trainings for
supervisors to teach support skills that
will contribute to equitable treatment of
female sworn members.
Forty-four percent of sworn female
members feel the promotion process
allows for favoritism. Additionally,
29% believe the promotion process is
subjective or biased, and the
promotion process is opaque with little
transparency about how decisions are
made.
The promotional process, including pre-
testing training opportunities, ranking
within City created promotional lists, the
post-test interview and essay process,
availability of acting assignments, and
the eventual promotions into higher
ranks should be examined by the internal
Race and Equity Team.
The most frequent theme of responses
to an open-ended question about what
the Department can do to make female
sworn members feel valued was that
the Department should show more
appreciation of all officers.
The Deputy Chiefs of each Bureau should
coordinate and host a quarterly event to
show support and camaraderie with their
assigned teams.
9Notably, the 2022 internal investigation and discipline survey revealed that only 57% of the 23 sworn female officers who responded agreed that they “feel respected by [their] supervisors.”
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Chart 2: Key Findings and Recommendations Re Sworn Female Members’ Responses to Department’s Fall/Winter 2022 Survey
Finding Recommendation
The most frequent theme of responses
to an open-ended question about what
the Department can do to encourage
female sworn officers to promote was
to provide a mentorship program.
The Department should consider
expanding its mentorship program
beyond the Academy. The Department
should rely upon subject matter experts
to create a framework for an incentivized
and renewable mentorship program, not
just for Academy members, but for mid-
career employees as well.
The Department is engaged with the material provided by the 30x30 initiative. The Department received the internal survey report in mid-March 2023 and is working on its response to OIA’s recommendations in addition to exploring other ideas. The Department appreciates that mentorship programs and leadership training are critical to retaining and increasing membership, particularly for officers from underrepresented groups which, in law enforcement, includes women.
VI. OFFICERS USE REASONABLE FORCE AND DEPARTMENT FORCE
REVIEW IS DEPENDABLE
The Department has continued to demonstrate capability in sustaining substantial compliance on tasks involving use of force, reporting, and review.
Officers’ uses of force are generally appropriate and reported and reviewed as required by policy, and supervisors and command personnel are generally identifying and properly addressing any concerns. See Second NSA Sustainability Report at 13, supra; Third NSA Sustainability Period Report at 13, supra.
A. FORCE AND FORCE INVESTIGATIONS (TASKS 24 & 25)
The Department has continued its own internal command oversight and assessment of force and force investigations using a process patterned after the Monitoring Team’s review process. That process has proven successful for identifying and addressing issues related to force reporting and review. The process is also sustainable in the long term. The Monitoring Team agrees that generally the Department’s “chain of command is actively involved in the review of use of force Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 45 of 53 1 2
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and is addressing areas of concern without the need for [the Monitoring Team] to bring the concerns to [the Department’s] attention.” Third NSA Sustainability Period Report at 19, supra.
During the quarterly Monitoring Team site visit in February, a deputy chief presented the Department’s assessment of Level 3 and Level 4 use of force reports completed between September and November 2022. The Department reviewed and reported out not only on the use of force reports reviewed by the Monitoring Team but on additional use of force reports. The Department identified concerns with tactical issues, proper categorization of uses of force, and de-escalation techniques.
The Department also identified positive trends – including improved planning and communications, more detailed use of force reports, and sergeants and the chain of command identifying and addressing deficiencies. The Monitoring Team agreed with the Department’s self-assessment. See id. at 13.
In its most recent report, the Monitoring Team recognized the following additional achievements:
• The percentage of force incidents involving African Americans decreased 7% (id. at 12), a further reduction from the aggregate 22% decrease achieved in the previous two quarters (Second NSA Sustainability Period Report at 12, supra; and Dkt. 1540, First NSA Sustainability Report of the Independent Monitor 12 (Oct. 3, 2022);
• There were no instances where the use of force was not de-escalated or stopped reasonably when resistance decreased (Third NSA Sustainability Period Report at 18);
• There were no instances where officers could have made additional efforts to explain to subjects why detention was occurring prior to using force (id.);
• There was continued improvement in officers identifying themselves as police officers when appropriate and there was time to do so and “few instances” where they did not do so (id. at 12, 18);
• There were no instances where officers failed to document specific information and details justifying use of force or using “boilerplate” or “pat” language in reports (id. at 17);
• There were no instances of unprofessional language or profanity (id. at 12);
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• Supervisors identified and properly addressed all but one body-worn camera issue (delayed activation) (id.); and
• The Department has conducted member training in multiple formats to address proper Taser use and review of Taser deployments which the Monitoring Team believes will address a cluster of previously identified concerns with Taser deployments (id. at 18).
Finally, the Department is pleased to report that on March 23, 2023, the Oakland Police Commission approved revisions to DGO I-15.1, Body-Worn Camera Policy. After the meet and confer process is complete, the Department will publish the policy, begin training, and determine an appropriate effective date for the policy based on training requirements. The revised policy in conjunction with the Department’s upgraded body-worn camera system is critical to the Department’s ability to sustain its consistently rigorous force and force report reviews.
B. FORCE BOARDS (TASKS 26 & 30)
During the Third NSA Sustainability Period, the Department held two Force Review Boards to review Level 2 uses of force, and one Executive Force Review Board to review a Level 1 use of force, an officer-involved shooting. See id. at 20-23.
The Monitoring Team did not disagree with any of the Boards’ findings that officers’ used force in compliance with law and policy, or the one instance where the Board determined that a use of force was out of compliance. See id. Furthermore, the Monitoring Team recognized a number of positive qualities characteristic of the Department’s force boards that contribute to consistent and effective boards. For example, the Monitoring Team “continue[d] to observe substantive discussion and deliberations among the Board members,” and noted that members “ask probing questions of the force investigators and, where applicable, Department subject- matter experts (SMEs) and IAD investigators.” Id. at 21. The Boards “also spend a great deal of time discussing issues ancillary to the issues of force such as tactics, supervision, force alternatives, and training opportunities.” Id.
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Finally, the Monitoring Team reviewed two written Board reports completed in December 2022 and January 2023 which it found were generally “well-written and accurate accounts of the [Board] proceedings.” Id. at 20.
CONCLUSION
The City continues to experience high levels of homicides, armed robberies, and gun crimes. Department members continue to work tirelessly in their mission to apprehend those responsible for the violence and keep the community safe. In the past week, the Department arrested multiple individuals responsible for a series of armed robberies across Oakland. Oakland Police Department Makes Multiple Arrests in Robbery Series (Mar. 29, 2023),
https://www.oaklandca.gov/departments/police (last visited Apr. 1, 2023). In the past several months the City has also faced new significant challenges, including a vicious ransomware attack in early February from which the City is still recovering.
The City’s commitment to constitutional policing is unwavering, however, no matter the challenges it may face. It is the City and its independent oversight bodies, along with the Department, who are together responsible for ensuring sustained substantial compliance with the NSA. While certainly a focus of the City’s work has been and will continue to be ensuring that the Department has an effective framework for rigorous and honest self-assessment and accountability, the City has made clear that it does not intend to rely solely on the police to police themselves.
The Department has made great strides in every aspect related to the NSA. Even so, the City expects and demands additional improvements particularly focused on the integrity of its internal investigations. The Department, too, expects and demands these improvements of itself. And even with additional Department improvement, the Mayor, City Administrator, City Attorney, Oakland Police Commission, Officer of the Inspector General, and Community Police Review Agency provide independent Department oversight and guidance. Separately and collaboratively, these entities police the police.
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46 JOINT CASE MANAGEMENT
STATEMENT
Case No. 00-cv-4599 WHO
OAKLAND POLICE COMMISSION’S STATEMENT10
The Oakland Police Commission is pleased to respond to the Court’s invitation to share our perspective on the value of a Sustainability Process and the best plan and prospects for a successful exit from the NSA.
The Police Commission was created through a 2016 ballot measure that amended our City Charter and vested in us broad authority to oversee the Oakland Police Department “to ensure that its policies, practices, and customs conform to national standards of constitutional policing.”
The 2016 ballot measure, along with a subsequent ballot measure in 2020, enshrines civilian oversight to supervise the Police Department, the Office of the Inspector General (OIG), which has authority to assess the Department's performance and adherence to constitutional policing practices and audit its policies and procedures, and the Community Police Review Agency (CPRA), which has authority to investigate public complaints of misconduct against police officers and internal complaints if directed by the Commission. This model was part of City leadership’s long-term plan for the City of Oakland to earn resolution of the Negotiated Settlement Agreement (NSA). The Commission’s bold exercise of its oversight authority, as informed by audit work of the OIG and investigatory work of the CPRA, should eventually replace the proactive c
NSA Sustainability
Meeting Agenda (Feb 27 2023).docx ompliance
mandate currently
imposed by the Monitor and the Independent Monitoring Team.
To earn NSA resolution, we appreciate that this Court and the Compliance
10 Counsel for the Oakland Police Commission provided the City’s counsel with this statement from the Oakland Police Commission and the referenced attached plan (Exhibit 3) for inclusion in the court filing pursuant to the Court’s January 24, 2023 request for the Commission’s perspective. The Oakland Police Commission’s authority arises from the City’s Charter. See The Charter of the City of Oakland, sec. 604,
https://library.municode.com/ca/oakland/codes/code_of_ordinances?nodeId=THCHO A (last visited on Apr. 2, 2023).
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47 JOINT CASE MANAGEMENT
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Monitor/Director both expect the City of Oakland to demonstrate that it will routinely address major compliance incidents. The City can do so, first, by identifying deeper structural and cultural issues those incidents reveal and, second, by then implementing comprehensive response plans to keep its reform progress on track. The Monitor’s Status Reports have routinely emphasized the proper scope of a more comprehensive response plan as integrating “broader issues of personnel, discipline, risk management, supervision, and leadership into a comprehensive management plan.” The Oakland Police Commission’s Charter authority positions it to support the City in developing this more comprehensive approach.
That’s because the Police Commission plays a broad oversight role, both in leading the civilian oversight policymaking structure in Oakland and in supervising a civilian-led investigation agency that prioritizes the integrity of investigations into allegations against sworn officers. The Commission reforms Department policies related to all NSA tasks. We set direction for the Police Chief, the Inspector General, and the Executive Director of the CPRA. We can request reports about important police reform issues from the Chief and the City Administrator. We set the evaluation criteria for the Chief, the Inspector General, and the Executive Director of the CPRA. We hold an annual hearing on the Police Department’s budget before the City Council approves it. We serve as a public forum for a highly informed community of Oakland residents and stakeholders, many of whom are organized and deeply engaged to help us set the reform agenda at our twice- monthly public meetings. Advocates for stringent police reform measures also serve as featured community participants of the Commission’s policy committees, which we establish to revise the Department’s policies, procedures, and general orders. In the past year alone, the Commission has taken up close to 20 detailed policies, standard operating procedures, and general orders, ranging from the limited authorization to use military equipment to approving all of the changes the Monitor has required the City to implement, each time incorporating community Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 50 of 53 1 2
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48 JOINT CASE MANAGEMENT
STATEMENT
Case No. 00-cv-4599 WHO
involvement and perspectives without missing any deadlines imposed by state law or this Court. Far more policies and procedures and general orders are in the process of being created and revised, and we anticipate continuing to successfully take on the policymaking work required to reform OPD.
Based on our mandate from the voters of Oakland, and recent invitations of this Honorable Court, we understand that the Commission has a responsibility to fully exercise all of its Charter powers to continuously set the policing agenda and transform the Department from within, so that the constitutional policing measures mandated by the NSA will take root beyond the Sustainability Period.
In the short term, the Department has taken up the recommendations issued by the law firm of Clarence, Dyer, Cohen, LLP and started a detailed process of implementing those recommendations via new and updated policies and training materials. In addition, the Department has gone beyond those recommendations and is examining other policy and procedure changes to enhance communication between the Department and the CPRA and the Commission.
To set direction about ongoing reform efforts over the medium and long term, the Commission has established a new subcommittee of Commissioners currently led by Retired Judge Brenda-Harbin Forte as its Chair, other distinguished Commissioners of Oakland, and featured community participants of the public to lead the Commission in rendering its own determinations about what deeper structural and cultural issued were evidenced by the events described in the CDC Reports, in order to develop an appropriately comprehensive incident response reform plan for the Commission and the City to implement over the coming months.
That plan is attached. Ex. 3, OPC Memorandum, Discussion Outline of Reform Plan (Mar. 30, 2023).
From this latest sprint of reform work, one point of perspective the Commission will share with the Court is to reemphasize the value of a near-term Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 51 of 53 1 2
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49 JOINT CASE MANAGEMENT
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Case No. 00-cv-4599 WHO
transition of oversight to the Commission and the civilian departments it oversees.
With due respect to Clarence Dyer Cohen, LLP, recommended reforms to the Police Department and the City require an in-depth understanding of the City’s Charter structure and the model of oversight it envisions, and key policymaking reform work would have been well underway by now had the Commission been read into the matter at an earlier juncture. Rather than coordinating the outside investigation with an Oakland-overseen investigation led by the CPRA, civilian oversight was siloed out of the process that resulted in the Reports of Investigation and Recommendations that Clarence Dyer Cohen LLP issued. The Commission is left to develop and implement big picture reforms on a short timeline, almost as an afterthought. We continue to recognize the work of the Independent Monitoring Team in helping the City of Oakland reform itself, and we are encouraged by the opportunity to build on the Monitor’s herculean track record the Court itself emphasized. We would be remiss, though, if we did not respectfully share our perspective that the Commission has been empowered by the voters because of widespread community sentiment that Oakland residents can set the direction of the reform work required to ensure Constitutional policing.
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THE OPOA’S STATEMENT
Since the last Case Management Conference on January 24, Intervenor, Oakland Police Officers Association (“OPOA”) has made itself available to the Oakland Police Department (“OPD”) and the City of Oakland (“City”) to assist in the effort to maintain compliance during the sustainability period. Although there have been no overtures to the OPOA relative to NSA compliance since the last CMC, the OPOA is aware that OPD has made significant strides towards full compliance within the sustainability period. The OPOA affirms its willingness and commitment to assist the parties and the Court in whatever capacity they deem appropriate.
Respectfully submitted,
Dated: January 23, 2023 BARBARA J. PARKER, City Attorney BRIGID S. MARTIN, Special Counsel
By: /s/ Brigid S. Martin*
Attorneys for Defendants
CITY OF OAKLAND
JOHN L. BURRIS
Law Offices of John L. Burris
By: /s/ John L. Burris
Attorney for Plaintiffs
JAMES B. CHANIN
Law Offices of James B. Chanin
By: /s/ James B. Chanin
Attorney for Plaintiffs
ROCKNE A. LUCIA, JR.
Rains Lucia Stern St. Phalle & Silver
By: /s/ Rockne A. Lucia, Jr.
Attorney for Intervenor
OAKLAND POLICE OFFICERS ASSOCIATION
*Per Local Rule 5-1(i)(3), the filer attests that concurrence in the filing of the document has been obtained from each of the other Signatories Case 3:00-cv-04599-WHO Document 1579 Filed 04/04/23 Page 53 of 53
EXHIBIT 1
Case 3:00-cv-04599-WHO Document 1579-1 Filed 04/04/23 Page 1 of 4
C I T Y O F O A K L A N D
Memorandum
To: Chief D. Allison
From: Lieutenant B. Hubbard
Date: 23 Mar 23
Re: DGO I-19 Training Review and Update
This memorandum provides a review and update for training DGO I-19 – Electronic Communication Devices.
In September 2022, DGO I-19 was published. The Training Section completed a digital presentation to accompany the policy and tasked all supervisors and commanders to provide the training to their respective teams. The strategy of commanders and supervisors providing the training proved effective because it allowed for a robust understanding of the policy, the opportunity for supervisors and commanders to provide their expectations, and for supervisors and commanders to confirm that members had their work cellphones on their person.
DGO I-19 and the digital presentation were uploaded to PowerDMS for members to read, understand, and “sign off.”
Clarence Dyer & Cohen LLC was retained in May 2022 to conduct an independent investigation into two OPD incidents and the public report of their findings was released in January 2023. The Training Section republished the training documents, again tasking sergeants and commanders to provide training to their teams.
In March 2023, the digital presentation was updated to include the following topics:
• Restrictions against deleting and resetting the phone or electronic device upon separation (termination, resignation, or retirement).
• The department’s authority to search one’s personal phone or electronic device, if reasonable.
To ensure understanding of the policy, a 10-question quiz will be added to PowerDMS, requiring all members to complete it before the policy is considered “signed off.”
The Training Section, in partnership with the Human Resources Section, will ensure that all officers graduating from the academy receive the training, along with new employees. Also, the training will be provided in each Continual Police Training (CPT) session provided to sergeants and officers and instructed by a Bureau of Risk Management (BORM) representative.
Respectfully submitted,
Case 3:00-cv-04599-WHO Document 1579-1 Filed 04/04/23 Page 2 of 4
Bryan Hubbard
Lieutenant of Police
Training Section
Case 3:00-cv-04599-WHO Document 1579-1 Filed 04/04/23 Page 3 of 4
1. T/F: All sworn members shall carry their work cell phone while on duty.
2. T/F: Because some confidential material may be on a work cell phone, they are not subject to public records requests, subpoenas, and discovery requests unless authorized by a magistrate.
3. Which of the following is true? Members are not to conduct personal business on their work phones unless:
a. A member calls to notify family members, physicians, etc., regarding an injury on the job.
b. A member calls to notify family members when required to work overtime without advance notice.
c. None of the above
d. Both A and B.
4. T/F: Electronic material (e.g., pictures, audio, text messages, electronically generated messages) potentially related to a criminal or internal investigation and recorded on work cell phones shall be handled as evidence.
5. Which of the following is true regarding the use of personal cell phones? a. Members may use city email for official business on their personal phone. b. Members who have timecard approval responsibilities may approve timecards on their personal phone.
c. Members who do not have access to their work cell phone may make urgent work-related phone calls or text messages from their personal phones. d. Members not issued a work cell phone may conduct administrative work-related business (e.g., call the office, submit or approve timecards, etc.) using their personal cell phone.
e. All of the above are true.
6. T/F: Personal social media accounts or applications may be accessed or installed on work cell phones or electronic devices.
7. T/F: To alleviate the burden of carrying two phones, one may remove the SIM (subscriber identity module) card from a work cell phone or device and install it into a personally owned phone.
8. When may a member delete or reset their work cell phone to factory settings? a. Upon separation from the department
b. When the phone is not operating properly
c. Before submitting it to the ITU
d. Never
9. T/F: The department reserves the right to inspect one’s work cellphone, including call logs, messaging apps, browsing history, and social media applications.
10. T/F: Phone inspections by supervisors or commanders outside of planned or ordered inspections, audits, or investigations shall be documented in a memorandum to the Captain of Internal Affairs, no matter the inspection outcome.
Case 3:00-cv-04599-WHO Document 1579-1 Filed 04/04/23 Page 4 of 4
EXHIBIT 2
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 1 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
1 30x30 Survey of Sworn Female Officers
Due to the historical under representation of women in law enforcement, a coalition of police leaders, researchers, and professional organizations joined together to advance the representation and experiences of women in policing agencies across the United States by creating the 30x30 initiative. The 30×30 initiative is based on the importance of achieving at least 30% representation to empower a group to influence an organization’s culture.1 The Oakland Police Department committed to the “30x30 pledge,” referencing an effort to increase the percentage of female academy recruits to 30% by the year 2030, which provides a series of actions the agency can take to improve the representation and experiences of women in sworn positions in all ranks.
As part of that pledge, the Department agreed to administer a survey developed by the 30x30 initiative.
The initiative provided the survey template and the Department modified it slightly to better fit the agency.
The Department’s only sworn female lieutenant emailed the anonymous survey link to all sworn female employees on November 29
th, 2022. The lieutenant and a female sergeant also sent f ollow-up emails reminding officers to respond, encouraging participation during the following weeks. The survey closed on December 19th, 2022.
The survey received f ifty-six responses out of a possible 103 sworn female members (a 54% response rate). The end of this report includes the aggregate responses to each question.
The Department conducted a survey of all sworn members in July 2022 about the internal affairs and discipline process. The July survey captured data by race and gender. Some questions on that survey were similar to questions on the 30x30 survey, allowing for some comparison of sworn female responses. There were 23 sworn female respondents to the July 2022 survey.
Demographics
Although only slightly more than half of the Department’s sworn female officers responded to the survey, the race and age demographics of the women who responded roughly reflect the Department’s overall demographics for sworn female officers.
The race or ethnicity of the survey respondents is genera lly similar to the Department’s current demographics. It should be noted that, unlike the Department’s internal data set, the survey allowed respondents to select more than one race category, which may have contributed to some of differences present in the chart below.
1 https://30x30initiative.org/about-30x30/
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 2 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
2 By age, the majority of sworn female officers are between 30 and 39 years old.
By tenure, most sworn female officers have between six and 10 years of service. The Department received a lower response rate from officers with zero to five years of service than those with 6-10 years of service.
33% 27%
28% 37%
18% 22%
9%
9%12% 5%
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Survey Respondents Sworn Females
Demographics by Race
White or Caucasian Hispanic or Latino Black or African American Asian or Asian American Other 11% 17%
55% 50%
30% 25%
4% 8%
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Survey Respondents Sworn Females
Demographics by Age
21-29 30-39 40-49 50-59
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 3 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
3 General Agency Feedback
Overall, the majority of respondents appear to have neutral or positive feelings about levels of respect and racial and ethnic representation. The one statement where over half of respondents disagree d or strongly disagreed was: “I am satisfied with the representation of women in my agency.”
The current survey also received more th an twice the responses from female sworn members than the initial survey, indicating the current survey is more representative of female sworn members than the prior survey.
27%
38%
48%
39%
5% 9%9% 5%
11% 10%
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Survey Respondents Sworn Females
Tenure
0-5 6-10 11-15 16-20 21+
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 4 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
4 For more than half of respondents (55%), when they became a police officer their main aspiration was to obtain a specialty assignment. A lmost half of respondents (48%) reported they are happy with the ir current position. Only 15% reported interest in promoting to a higher rank. While most respondents initially wanted to obtain a specialty assignment when they became a police officer, only 53% believe they have equal access to special/ancillary assignments.
The statement, “I feel respected by my supervisors” was asked in the July 2022 survey on the internal affairs process. In that survey, 23 individuals that identified as sworn females responded. The result from the July 2022 was less positive than those obtained from the current 30x30 survey. In the current survey, 57% of respondents agreed/strongly agreed with the statement, 13% were neutral, and 31% disagreed or strongly disagreed.
Mentoring
Slightly more than 60% (34 of 56) of respondents indicated they have or had a significant mentor during their career. The most common mentor was a supervisor or leader within the Department (65%), followed by other officers within the Department (26%). Additionally, most respondents indicated their significant mentors were male.
Promotions
Most respondents have been encouraged to promote (77%). Respondents were more often encouraged to promote by a male within the Department, rather than a female. Similarly, for those respondents who have ever been discouraged from promoting (29%), males within the Department were more often reported as the source of discouragement. Respondents reported being told promoting “wasn’t worth it” 5% (3) 11% (6) 5% (3) 7% (4) 9% (5) 9% (5) 16% (9)16% (9) 38% (21)
25% (14) 21% (12) 29% (16) 25% (14)
50% (28)29% (16)
27% (15)
34% (19) 29% (16)
34% (19)
25% (14)
21% (12)
38% (21)
18% (10) 30% (17)
30% (17)
16% (9)
23% (13)
5% (3)13% (7) 7% (4) 5% (3) 13% (7) 13% (7) 18% (10) 7% (4) 0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
I am satisfied
with the
representation
of women in my
agency.
I am satisfied
with the
representation
of racial and
ethnic
minorities in my
agency.
I believe women
in my agency
are respected
by female
officers.
I believe women
in my agency
are respected
by male
officers.
I believe women
in my agency
are respected
by supervisors.
I believe women
in my agency
are respected
by command
staff.
I feel respected
by my
supervisors.
Please indicate the extent to which you agree or
disagree with the following statements
Strongly Agree Agree Neutral Disagree Strongly Disagree Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 5 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
5 was the most frequent form of discouragement. Seven respondents selected that reason. There was a tie (6 responses each) between “need more experience/not enough time in current role” and “bias against women in the role (im plied)” for the second most common reason why respondents were discouraged from promoting.
More than half of respondents indicated they have taken extra steps to increase their promotability , though only 25% have actually sought promotion. The most common steps were training, seeking diverse assignments, and taking on extra duties and special projects. For those that have not sought promotion, the most frequent reason given was that they needed to accumulate more experience. Fewer , but still frequent, responses included that they like their current shift and they are not interested in the roles required of a ranking officer.
For those that have promoted, the biggest challenge during the promotion process was juggling work and home responsibilities. As a supervisor, the biggest challenge is a lack of respect from other supervisors.
Almost half of respondents have neutral feelings about the promotion process at OPD. Respondents were more likely to disagree/strongly disagree the process was fair (32%) than agree/strongly agre e (21%).
Forty-four percent of respondents feel the process allows for favoritism. Additionally, 29% believe the promotion process is subjective/biased, and the promotion process is opaque with little transparency about how decisions are made.
Harassment
Forty-five percent of respondents stated they had personally experienced harassment or discrimination based on their gender or other social identity ( e.g., race, sexual orientation). The same percentage indicated they had also witnessed similar harassment or discrimination of others during their career. Of those respondents who witnessed harassment or discrimination, 46% (12/26) indicated they witnessed it “sometimes.” Thirty-one percent (8/26) indicated they witnessed it “often” or “very often.”
When asked to select all applicable descriptions from a nine -item list t o describe the Department’s response to complaints of harassment or discrimination , 46% of respondents chose the agency “ takes complaints of harassment or discrimination seriously and thoroughly investigates them .” 43% chose “agency is inconsistent in its actions. ” Nearly 25% of respondents chose “agency culture discourages reporting harassment or discrimination.”
Family Leave
Forty percent of respondents indicated they had children (21/53). Most had children while they were an officer. Of those that used family leave, most utilized it only one time. Nine respondents indicated they used family leave more than one time. Additionally, of those that used family leave, most felt taking the leave impacted their career in a neutral or negative way. Only one respondent felt it had a somewhat positive impact. Despite not having positive feelings about how family leave impacts one’s career, 43% felt the agency was supportive of officers with families. 28% (15/53) also felt the agency was inconsistent in their support of officers with families.
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Office of Internal Accountability
Risk Analysis Unit
6 Open-Ended Responses
The survey included two open ended questions. 1. “What can the Department do to make you feel more valued?” and 2. “What extra steps could the Department take to encourage more women to promote within the agency?” For the first question, the most common theme was for the Department to show more appreciation of officers (not just female). The appreciation could be verbal, in the form of written communication or awards, or tangible such as b arbecues or coffee provided by the Department. The second most common theme for the first question was to only hire q ualified candidates, regardless of race or gender. Officers may feel as if their hard work is devalued if standards are shifted to accommodate less qualified candidates.
For the second question , about encouraging women to promote, the most common theme was the Department needs a mentorship program. Additionally, the Department should fairly pro mote training opportunities/promotional courses to all officers and not just give opportunities to thos e in specialty assignments or those who are favored by leadership.
Summary
While the survey captured responses from more of the sworn female population of the Department and reflected a more positive opinion than that expressed by the unknown, smaller, c adre of female sworn respondents from the July 2022 survey, there are still some action items the Department might focus on to help elevate and empower female sworn members in their career.
While most respondents initially wanted to obtain a specialty as signment when they became a police officer, only 53% believe they have equal access to special/ancillary assignments. The Department should study distribution of female sworn members throughout the Department and develop pathways to achieving equitable representation.
As a supervisor, the biggest challenge was a lack of respect from other supervisors. The Department should consider hosting a series of gender awareness trainings for supervisors to teach support skills that will contribute to equitable treatment of female sworn members.
Forty-four percent of respondents feel the promotion process allows for favoritism. Additionally, 29% believe the promotion process is subjective or biased, and the promotion process is opaque with little transparency abo ut how decisions are made. The promotional process, including pre -testing training opportunities, ranking within City created promotional lists, the post -test interview and essay process, availability of acting assignments, and the eventual promotions into higher ranks should be examined by the internal Race and Equity Team.
The Department should show more appreciation of officers (not just female). The Deputy Chiefs of each Bureau should coordinate and host a quarterly event to show support and camaraderie with their assigned teams. The Department should consider expanding its mentorship program beyond the Academy. The Department should rely upon subject matter experts to create a framework for an incentivized and renewable mentorship program, not just for Academy members, but for mid-career employees as well.
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 7 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
7 Survey Responses
Q1: Are you a woman, 18 years of age or older, who is currently serving or has served as a police officer in the United States?
Answered: 56
Skipped: 0
ANSWER CHOICES RESPONSES
Yes 100% (56)
No 0% (0)
Q2: Please indicate the extent to which you agree or disagree with the following statements.
Answered: 56
Skipped: 0
STRONGLY
DISAGREE
DISAGREE NEUTRAL AGREE STRONGLY
AGREE
I am satisfied with the
representation of women in my
agency.
12.50%
7 37.50%
21 28.57%
16 16.07%
9 5.36%
3 I am satisfied with the
representation of racial and
ethnic minorities in my agency.
7.14%
4 17.86%
10 26.79%
15 37.50%
21 10.71%
6 I believe women in my agency
are respected by female officers.
5.36%
3 30.36%
17 33.93%
19 25.00%
14 5.36%
3 I believe women in my agency
are respected by male officers.
12.50%
7 30.36%
17 28.57%
16 21.43%
12 7.14%
4 I believe women in my agency
are respected by supervisors.
12.50%
7 16.07%
9 33.93%
19 28.57%
16 8.93%
5 I believe women in my agency
are respected by command staff.
17.86%
10 23.21%
13 25.00%
14 25.00%
14 8.93%
5 I feel respected by my
supervisors.
7.14%
4 5.36%
3 21.43%
12 50.0%
28 16.07%
9 Q3: How many years have you been a sworn law enforcement officer? Answered: 56
Skipped: 0
Years Responses
0-5 26.79% (15)
6-10 48.21% (27)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 8 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
8 11-15 5.36% (3)
16-20 8.92% (5)
21+ 10.71% (6)
Range: 0 years – 24 years
Mean: 9.2 years
Q4: How many years did you spend working patrol?
Answered: 56
Skipped: 0
Years Responses
0-5 55.27% (31)
6-10 33.92% (19)
11-15 8.93% (5)
16-20 1.79% (1)
Range: 0 years – 18 years
Mean: 5.7 years
Q5: Please indicate your current assignment and any previous assignments you have held. Select all that apply.
Answered: 56
Skipped: 0
82.14%
16.07%
1.79%
12.50%
7.14%
5.36%
12.50%
5.36%
0.00%
5.36%
17.86%
5.36%
12.50%
16.07%
3.57%
7.14%
8.93%
3.57%
3.57%
7.14%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
Patrol
Special Operations
Traffic Operations
Burglary/General Crimes
Homicide
Robbery/Felony Assault
Special Victims
Youth and Family Services Division
Violent Crime Operations Center
Ceasefire
Training
Internal Affairs
Community Resource Officer
Crime Reduction Team
Office of the Chief of Police
Office of Internal Accountability/Office of…
Recruiting and Background
Research and Planning
Intelligence
Other (please specify)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 9 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
9 Q6: Have you had any significant mentors during your police career? Answered: 56
Skipped: 0
ANSWER CHOICES RESPONSES
Yes 60.71% (34)
No 39.29% (22)
Q7: If yes, who has been the most significant mentor to you during your career? Answered: 47
Skipped: 9
Q8: Were any of your significant mentors women?
Answered: 56
Skipped: 0
ANSWER CHOICES RESPONSES
Yes 28.57% (16)
No 41.07% (23)
N/A 30.36% (17)
4.26%
12.77%
12.77%
34.04%
4.26%
29.79%
2.13%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
A peer on my team/unit
A supervisor or leader on my team/unit
A peer in my agency
A supervisor or leader in my agency
Someone from another agency
N/A
Other (please specify)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 10 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
10 Q9: Have you ever been involved in any formal mentoring program? Answered: 56
Skipped: 0
ANSWER CHOICES RESPONSES
Yes 12.50% (7)
No 87.50% (49)
Q10: Have you ever mentored another female officer?
Answered: 56
Skipped: 0
ANSWER CHOICES RESPONSES
Yes 44.64% (25)
No 55.36% (31)
Q11: Has anyone ever encouraged you to promote?
Answered: 56
Skipped: 0
ANSWER CHOICES RESPONSES
Yes 76.79% (43)
No 23.21% (13)
Q12: If yes, who encouraged you? Select all that apply.
Answered: 53
Skipped: 3
60.38%
32.08%
52.83%
37.74%
52.83%
35.85%
33.96%
3.77%
13.21%
5.66%
3.77%
15.09%
1.89%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
Supervisor - man
Supervisor - woman
Person of higher rank (not supervisor) - man
Person of higher rank (not supervisor) - woman
Peer - man
Peer - woman
Family - partner
Family - children
Family - parent
Family - other
General culture of agency encourages seeking…
N/A - no one encouraged me
Other (please specify)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 11 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
11 Q13: Why do you think they encouraged you? Select all that apply.
Answered: 53
Skipped: 3
Q14: Has anyone ever discouraged you from promoting?
Answered: 56
Skipped: 0
ANSWER CHOICES RESPONSES
Yes 28.57% (16)
No 71.43% (40)
67.92%
56.60%
7.55%
24.53%
41.51%
67.92%
18.87%
16.98%
3.77%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
Past performance/capability
Strong leadership skills
Tokenism - just for the sake of having a woman in…
Diversity - person believes in the value of having…
Good personality for the job
Strong work ethic/independently motivated
Well-educated
N/A - no one encouraged me
Other (please specify)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 12 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
12 Q15: If yes, please describe who discouraged you. Select all that apply Answered: 41
Skipped: 15
Q16: If yes, why do you think they discouraged you? Select all that apply.
Answered: 44
Skipped: 12
17.07%
4.88%
7.32%
2.44%
19.51%
7.32%
0.00%
0.00%
0.00%
2.44%
4.88%
58.54%
4.88%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
Supervisor - man
Supervisor - woman
Person of higher rank (not supervisor) - man
Person of higher rank (not supervisor) - woman
Peer - man
Peer - woman
Family - partner
Family - children
Family - parent
Family - other
Non-specific/general culture of agency discourages…
N/A - no one discouraged me
Other (please specify)
13.64%
2.27%
0.00%
15.91%
4.55%
13.64%
2.27%
9.09%
63.64%
0.00%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
Need more experience/not enough time in current…
Concerns about my ability to balance work and…
Did not think I would be a good…
Did not think promotion would be "worth it"…
Bias against women in the role (expressly stated)
Bias against women in the role (implied)
Worried I would have a "target on my back,"/just…
Did not "play the game"/participate in office…
N/A - no one discouraged me
Other (please specify)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 13 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
13 Q17: Have you taken any extra steps to increase your promotability? Answered: 56
Skipped: 0
ANSWER CHOICES RESPONSES
Yes 60.71% (34)
No 39.29% (22)
Q18: If yes, what were they? Select all that apply.
Answered: 49
Skipped: 7
59.18%
28.57%
44.90%
36.73%
18.37%
10.20%
10.20%
4.08%
30.61%
6.12%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
Training
Formal education
Seeking multiple/diverse assignments for a broad…
Volunteering for/taking on extra duties and special…
Seeking/taking on community engagement…
Volunteering outside of the Department
Shadowing other officers/seeking informational…
Seeking a "face time" or "inside" position to get on…
N/A - have not taken extra steps
Other (please specify)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 14 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
14 Q19: Over the course of your career, how many leadership/promotional courses and trainings have you attended that were required for all officers in your department? Answered: 55
Skipped: 1
Q20: Over the course of your career, how many leadership/promotional courses and trainings have you attended that were above and beyond what was required by your department? Answered: 55
Skipped: 1
69.09%
16.36%
9.09%
3.64%
1.82%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
0 1-2
3-5
6-9
10+
54.55%
36.36%
3.64%
3.64%
1.82%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
0 1-2
3-5
6-9
10+
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 15 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
15 Q21: Over the course of your career, how many leadership/promotional courses and trainings have you requested to receive, but were denied?
Answered: 55
Skipped: 1
Q22: What was your main career aspiration when you originally became a police officer? Answered: 55
Skipped: 1
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
0 1-2
3-5
6-9
10+
27.27%
54.55%
12.73%
0.00%
5.45%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
To stay on patrol
To obtain a specialty assignment (e.g., SWAT,
investigator)
To promote to a leadership position
To use policing as a stepping stone to other
employment (e.g., federal law enforcement)
Other (please specify)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 16 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
16 Q23: What is your current career aspiration?
Answered: 55
Skipped: 1
Q24: As a female sworn member, do you feel you have equal access to special/ancillary assignments? Answered: 55
Skipped: 1
ANSWER CHOICES RESPONSES
Yes 52.73% (29)
No 47.27% (26)
12.73%
14.55%
5.45%
5.45%
47.27%
14.55%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
To obtain a different assignment
To promote to a higher rank
To use policing as a stepping stone to other
employment (e.g., federal law enforcement)
To transfer to another department
I am happy with the position I have now
Other (please specify)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 17 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
17 Q25: What is your perception of the promotion process at your agency? Answered: 56
Skipped: 0
Q26: Please select any statements that reflect how you feel about the promotion process.
Answered: 55
Skipped: 1
5.36%
16.07%
46.43%
19.64%
12.50%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
I strongly believe the promotion process is fair.
I somewhat believe the promotion process is fair.
I have neutral feelings about the promotion process.
I somewhat disagree the promotion process is fair.
I strongly disagree the promotion process is fair.
29.09%
29.09%
16.36%
43.64%
29.09%
12.73%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
The promotion process is subjective/biased.
The promotion process is opaque, with little
transparency about how decisions are made.
The promotion process includes preferential
treatment of minorities and under-represented…
The promotion process allows for favoritism.
N/A
Other (please specify)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 18 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
18 Q27: Have you ever sought promotion?
Answered: 56
Skipped: 0
ANSWER CHOICES RESPONSES
Yes 25.00% (14)
No 75.00% (42)
Q28: If yes, why? Select all that apply.
Answered: 47
Skipped: 9
29.79%
8.51%
0.00%
4.26%
4.26%
0.00%
70.21%
2.13%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
I felt I would make a good leader.
I wanted to earn more money/increase pension.
I wanted a different shift.
I wanted a different assignment.
I wanted to promote as high as I could.
I did not enjoy working as a patrol officer.
N/A - I have not sought promotion.
Other (please specify)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 19 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
19 Q29: If no, why? Select all that apply.
Answered: 47
Skipped: 9
Q30: If you have promoted, what if any challenges have you faced during the promotion process? Select all that apply.
Answered: 50
Skipped: 6
12.77%
53.19%
25.53%
10.64%
17.02%
0.00%
0.00%
0.00%
0.00%
2.13%
2.13%
0.00%
2.13%
19.15%
12.77%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
I am not eligible to apply for promotion yet.
I would like to accumulate more experience before…
I would like to keep my current shift.
Promotion is not a good option for me because of…
I am not interested in the roles required of a…
I am afraid coworkers will retaliate against me if I…
I have been discouraged by someone in my agency…
I have been discouraged by a loved one against…
My agency does not promote women.
My agency does not have a good record of…
I do not think I would be successful at the…
I do not think I would make a good leader.
I think there are others who are better qualified…
N/A - I have sought promotion.
Other (please specify)
0.00%
4.00%
4.00%
12.00%
2.00%
4.00%
80.00%
2.00%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
Found the exam or interview significantly
challenging.
Found behavior by peers or supervisors to be an
impediment.
Found process opaque or confusing.
Juggling work and home responsibilities limited time
to prepare.
Founded status as a member of an under-
represented group to be a hindrance.
N/A - did not have challenges.
N/A - have not promoted.
Other (please specify)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 20 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
20 Q31: What (if any) challenges do you face in your position as a sergeant or above? Select all that apply.
Answered: 49
Skipped: 7
Q32: Have you ever personally experienced harassment or discrimination based on your sex or any other social identity (race, sexual orientation, etc.)? Answered: 56
Skipped: 0
ANSWER CHOICES RESPONSES
Yes 44.64% (25)
No 55.36% (31)
Q33: Have you ever witnessed harassment or discrimination of others during your career? Answered: 56
Skipped: 0
ANSWER CHOICES RESPONSES
Yes 44.64% (25)
No 55.36% (31)
12.24%
4.08%
8.16%
8.16%
8.16%
6.12%
8.16%
6.12%
4.08%
8.16%
2.04%
79.59%
2.04%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
Lack of respect from supervisors.
Lack of respect from peers.
Lack of respect from subordinates.
Restricted to stereotypical gender…
Balancing work/home life.
Lack of training/preparedness.
Lack of voice in decision-making/difficult to be…
Lack of additional opportunities.
Broad policing issues (e.g., current national climate)
General agency management issues
N/A - do not face challenges
N/A - have not promoted to leadership
Other (please specify)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 21 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
21 Q34: If yes, how often have you witnessed harassment or discrimination? Answered: 51
Skipped: 5
Q35: How would you describe your agency’s response to complaints of harassment or discrimination? Select all that apply.
Answered: 54
Skipped: 2
11.76%
23.53%
9.80%
5.88%
49.02%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
Rarely
Sometimes
Often
Very Often
N/A
46.30%
42.59%
1.85%
5.56%
7.41%
7.41%
24.07%
16.67%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
Agency takes complaints seriously/thoroughly
investigates.
Agency is inconsistent in their actions.
Agency does not take complaints seriously.
Agency lacks formal policy for responding to
harassment.
Agency ignores formal policy for responding to
harassment.
Agency policy for responding to harassment
perpetuates harm/fails to protect person reporting.
Agency culture discourages reporting.
Other (please specify)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 22 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
22 Q38: How old are you?
Answered: 56
Skipped: 0
Q39: What is your race? Select all that apply.
Answered: 55
Skipped: 1
0.00%
10.71%
55.36%
30.36%
3.57%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
18-22
23-29
30-39
40-49
50-59
40.00%
34.55%
21.82%
10.91%
3.64%
1.82%
9.09%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
White or Caucasian
Hispanic or Latino
Black or African American
Asian or Asian American
American Indian or Alaska Native
Native Hawaiian or other Pacific Islander
Other (please specify)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 23 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
23 Q40: What best describes your sexual orientation?
Answered: 53
Skipped: 3
ANSWER CHOICES RESPONSES
Heterosexual 69.81% (37)
Lesbian/Gay 18.87% (10)
Other queer 1.89% (1)
Other (please specify) 9.43% (5)
Q41: What is the highest level of education you have completed? Answered: 54
Skipped: 2
ANSWER CHOICES RESPONSES
High school diploma/GED 7.41% (4)
Some college 14.81% (8)
Associate's degree 9.26% (5)
Bachelor's degree 53.70% (29)
Master's degree 14.81% (8)
Doctorate or other terminal degree
(e.g., JD)
0% (0)
Q42: What is your relationship status?
Answered: 53
Skipped: 3
ANSWER CHOICES RESPONSES
Single 32.08% (17)
Married 47.17% (25)
Long term partnership 18.87% (10)
Other (please specify) 1.89% (1)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 24 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
24 Q43: Do you have children?
Answered: 53:
Skipped: 3
ANSWER CHOICES RESPONSES
Yes 39.62% (21)
No 60.38% (32)
Q44: If you have children, at what phase of your career did you first have children, or first assume childcare responsibilities?
Answered: 52
Skipped: 4
ANSWER CHOICES RESPONSES
Prior to my sworn police career 15.38% (8)
Officer 25.00% (13)
Sergeant 1.92% (1)
Lieutenant or above 0% (0)
N/A 57.69% (30)
Q45: How many times have you used family leave during your police employment? Answered: 52
Skipped: 4
ANSWER CHOICES RESPONSES
0 55.77% (29)
1 23.08% (12)
2 11.54% (6)
3 5.77% (3)
4 1.92% (1)
5+ 1.92% (1)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 25 of 26 Oakland Police Department March 2023
Office of Internal Accountability
Risk Analysis Unit
25 Q46: How do you think using family leave affected your career? Answered: 52
Skipped: 4
Q47: How would you describe the support provided by your agency to officers with families? Select all that apply.
Answered: 53
Skipped: 3
1.92%
17.31%
23.08%
1.92%
1.92%
53.85%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
Significantly negative
Somewhat negative
Neutral
Somewhat positive
Significantly positive
N/A
43.40%
5.66%
28.30%
5.66%
5.66%
13.21%
16.98%
9.43%
11.32%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
Agency is supportive.
Agency is not supportive.
Agency is inconsistent in their support.
Agency is too supportive, and provides…
Accessing support such as family leave negatively…
Agency culture fosters guilt about accessing family…
Agency policies regarding family support are…
Agency policies regarding family support are not…
Other (please specify)
Case 3:00-cv-04599-WHO Document 1579-2 Filed 04/04/23 Page 26 of 26
EXHIBIT 3
Case 3:00-cv-04599-WHO Document 1579-3 Filed 04/04/23 Page 1 of 10 1 of 9
CITY OF OAKLAND
Oakland Police Commission
250 FRANK H. OGAWA PLAZA • OAKLAND, CALIFORNIA 94612
TO: NSA Parties FROM: Oakland Police Commission (OPC) Dr. Tyfahra Milele, Chair
SUBJECT: Discussion Outline of DATE: March 30, 2023 Reform Plan to Bring the City
of Oakland Into Sustained
NSA Compliance
Introduction
This memorandum sets forth the outlines of a plan for the Oakland Police Commission (“Commission”) to reform the internal affairs investigation process of the Oakland Police Department (“OPD”) and ensure the City of Oakland is in sustained compliance with the goal of resolving the need for the Negotiated Settlement Agreement (“NSA”).
The proposals outlined in this memorandum operate on a parallel track with OPD’s own efforts to implement the recommendations made in the Reports of Investigation issued by Clarence Dyer Cohen, LLP related to IAD Numbers 22-0858 and 22-0443 (collectively, “CDC Report”). Those policies will make their way to the Police Commission under its Charter authority to approve or modify OPD policy changes, pursuant to Oakland City Charter Section 604(b)(5). In addition to OPD’s policy changes originating from the CDC Report, the Commission also has identified other policy areas for review during three public forum meetings and a formal solicitation to the public for written submissions in the month of March. Engaged stakeholders have proposed OPD policy changes, among other items, related to sworn officer use of Department-owned vehicles, the Department’s Discipline Matrix, disappearing messaging apps on cell phones, untruthfulness, coverups, failure to report, and body-worn cameras.
This plan builds on the current work by looking at deeper systemic and cultural issues, including those revealed by the major compliance incidents that were the subject of the CDC Report, and by focusing on the Commission’s unique Charter authorities to address those issues over time.
To formulate a final plan to address the issues outlined below, the Commission will identify information gaps the City and OPD can address, grapple in its public meetings with important policy questions, survey its relevant Charter and Municipal Code Case 3:00-cv-04599-WHO Document 1579-3 Filed 04/04/23 Page 2 of 10 2 of 9
authorities, and compile a final incident response plan for review by the NSA Parties and the Court.
The scope of reforms applies to all entities with authority over policing in Oakland, including the Commission itself and the entire City. Years of NSA Court transcripts warn us against artificially separating OPD from the City in implementing needed reforms.
Case 3:00-cv-04599-WHO Document 1579-3 Filed 04/04/23 Page 3 of 10 3 of 9
OUTLINE OF ISSUES AND REFORM PLAN
A. SYSTEMIC AND STRUCTURAL ISSUES
1. Issue: Transition of the Monitor’s Role to Full Community Oversight Long after the NSA was entered, the overwhelming majority of Oakland voters passed two successive ballot measures to amend the Oakland City Charter (Measure LL in 2016 and Measure S1 in 2020) to create the Commission and codify its authority to oversee the OPD “to ensure that its policies, practices, and customs conform to national standards of constitutional policing.” These ballot measures make clear that Oakland residents want Oaklanders to oversee OPD.
Proposed Solution: To honor the will of Oakland voters, the Commission is committed to performing the same functions as the IMT is currently doing, with the eventual goal of ensuring constitutional policing is maintained by monitoring the NSA tasks even after NSA ends. The Commission can exercise all of its Charter authority and can give direction to the two civilian oversight agencies that now report to the Commission as a result of the Charter amendments: the Community Police Review Agency (CPRA), and the Office of the Inspector General (OIG). As envisioned in the Oakland City Charter, the Commission’s exercise of its civilian oversight authority can be informed by directing the OIG to perform audits of a subset of completed IAD investigations (as the IMT is currently doing) to ensure that the public policy goals expressed in Task 5 are being met, and report the audit findings to the Commission so Commission can direct OPD to implement new or revised policies if needed.
Although the CPRA typically investigates public complaints of misconduct and recommends discipline, the Commission has authority to direct the CPRA to conduct parallel investigations of what would otherwise be solely internal affairs investigations, and report its investigation results and proposed discipline to the Commission so that the Commission can take appropriate action. The Charter provides that the CPRA “shall also investigate any other possible misconduct or failure to act of a Department sworn employee, whether or not the subject of a public complaint, as directed by the Commission.” (Oakland Charter Section 604(f)(1)).
The Commission also has authority, with City Council approval, to establish a permanent standing committee that can monitor compliance with all existing NSA tasks (not just Tasks 5 and 45) during Sustainability and in preparation for the eventual resolution of the NSA, after which the standing committee will continue its monitoring work on these same tasks. The Commission previously announced its intention to establish such a standing committee, and that plan is still in place. In short, the Commission should be allowed to exercise its Charter authority to perform the compliance work being done by the Monitor and the Independent Monitoring Team (IMT).
Case 3:00-cv-04599-WHO Document 1579-3 Filed 04/04/23 Page 4 of 10 4 of 9
2. Issue: Untimely or Absent Notifications and Referrals to the Commission and CPRA
Dozens of high profile IAD investigations have been handled by outside firms, yet there is no comprehensive policy that formally standardizes these referrals, governs the details of required notice to the other Charter entities in Oakland, or details the process and timeline for the City to implement discipline based on them, particularly discipline of the Police Chief or other non-union police officers. The City has been applying individual provisions of M-03, the OPD General Order for processing and investigating allegations of Department employee misconduct, which on its face does not contemplate dozens of outside referrals.
The Oakland Charter Section 604(f)(1) provides in pertinent part:
[T]he [Community Police Review] Agency shall receive, review and prioritize all public complaints concerning the alleged misconduct or failure to act of all Department sworn employees, including complaints from Department non-sworn employees.
The Agency shall not be required to investigate each public complaint it receives, beyond the initial intake procedure, but shall investigate public complaints involving uses of force, in-custody deaths, profiling based on any of the protected characteristics identified by federal, state, or local law, untruthfulness, and First Amendment assemblies.
The Agency shall also investigate any other possible misconduct or failure to act of a Department sworn employee, whether or not the subject of a public complaint, as directed by the Commission.
As a result of CPRA’s mandate to investigate public complaints, IAD only sends CPRA complaints made by members of the public. Complaints that are initiated within the Department, considered “internal complaints,” are not sent to CPRA for investigation.
The Commission could have referred the IAD investigations that were the subject of the CDC Report to the CPRA in early 2022 had the Commission known about the outside referral at the time the City Administrator and Office of the City Attorney referred them to Clarence Dyer Cohen, LLP. Prompt referral to the CPRA would have given its investigators enough time to fully investigate the matter in parallel with the outside investigation and not miss any state-imposed completion deadlines.
Proposed Solution: The internal affairs investigation policy, including any policies as part of the M- 03 series and those related to referrals to outside investigations, must be reformed. In addition, a broader multi- pronged approach is needed to address the issue.
The Chair of the NSA Ad Hoc Committee also serves as Chair of the CPRA Policies Ad Case 3:00-cv-04599-WHO Document 1579-3 Filed 04/04/23 Page 5 of 10 5 of 9
Hoc Committee, and is hereby proposing to fold several conceptual ideas proposed by the CPRA Director into this set of proposed solutions, as follows:
● The Commission should review the referral process for the CPRA to take up non-civilian complaints, as well as the CPRA’s policies and approach for taking on complaints that are traditionally handled internally by the Department. ● The City should enter into an MOU to require it to notify the Commission Chair and CPRA in writing whenever an internal complaint is referred to an outside agency for investigation. Such notification shall include sufficient information for the Commission and CPRA to understand all allegations that need to be investigated. The City shall also provide the Commission Chair and the CPRA a copy of any contract entered into with the outside agency. ● The Commission should direct OPD to report to the Commission on a monthly basis the number of public and internal IAD complaints, to track against the CPRA's monthly reported number.
● The Commission should direct OPD to submit all internal Complaint Investigation Reports (CIRs) to the CPRA via email, within 24 hours of initiation, with detailed allegations including brief narratives sufficient for the CPRA to clearly understand the allegations and the applicable policies and provisions of OPD’s Manual of Rules.
● The Commission should direct OPD to notify the CPRA via email, within 24 hours of deter mination, of any criminal allegations or implications that arise during the course of an administrative investigation.
● The Commission should direct OPD to notify the CPRA via email, within 24 hours of any decision being made, to have an outside entity investigate issues or allegations of police misconduct.
● The Commission should direct CPRA to document the numbers, types, and brief narratives of the internal complaints received from IAD. ● The Commission should direct CPRA to investigate mandated allegations for the internal complaints in the same manner as is done with mandated allegations for public complaints.
● The Commission should direct CPRA to investigate any mandated and non- mandated allegations against executive level supervisors ranked Captain or higher.
● The Commission should direct CPRA to determine if there is an administrative investigation that should be conducted in relation to any criminal investigation and to document the rationale for the decision.
● The Commission should direct CPRA to reopen a case and conduct an investigation if the Commission decides, based on a brief narrative of the closed internal cases, that reopening is merited.
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3. Issue: Lack of a Clear City Administrator Protocol for Serious Incident Notifications to OPC Chair, IG, and CPRA Director
Related to the general problem of untimely notifications is the lack of a proper protocol for alerting the OPC Chair, CPRA, and the Inspector General of an internal affairs investigation of the Chief of Police, the Assistant Chief, or any Deputy Chief. Such an investigation should be considered a “serious incident,” which is very narrowly defined in the Municipal Code. The City Administrator is responsible under the Municipal Code for developing a “protocol for notifying the Commission Chair, the Agency Director and the Inspector General of serious incidents within forty-eight (48) hours of the Chief knowing or having a reasonable suspicion that a serious incident has occurred.” (OMC
2.45.075.) The protocol also must include “a confidential status report to the Chair of the Commission, the Agency Director, and the Inspector General within ten (10) calendar days of the date on which the serious incident occurred, and a second confidential status report to the Chair of the Commission, the Agency Director and the Inspector General within forty-five (45) calendar days of the date on which the serious incident occurred.”
Proposed Solution: As a medium or long-term strategy, the City Council should consider broadening the definition of “serious incident” to include any internal affairs investigation of the Chief, Assistant Chief, and Deputy Chiefs. Recommendation of this revision falls squarely within the Commission’s Charter authority in Charter Section 604(h). If such a protocol is developed while the Monitor is still in place, the City Administrator should include a notification protocol for the City to follow when the Monitor notifies the City that he or the IMT suspect a serious incident has occurred.
4. Issue: Lack of City, Monitor, and IMT Coordination with OPC and CPRA
The lack of thorough and repeated Commission briefings about the Monitor’s concerns in early 2022 calls out for reform in overall approach to empowering civilian oversight.
The Commission should have been brought into this matter at a far earlier stage, rather than learning about it from the Monitor’s public status reports. Without prompt and comprehensive notice about the substance of OPD compliance concerns, the Police Commission cannot know what documents to formally request (as it has Charter authority to do) to properly exercise all of its Charter authorities. Delayed notifications, in turn, prevent the Commission from promptly introducing new reforms at the same speed that fast-moving compliance incidents arise (as the Monitor does). For instance, the Commission could have promptly set about reforming investigation policies in early 2022, regardless of whether any OPD officer was ultimately sustained for discipline or dismissal. These revised policies could have already been implemented even before the CDC Report was issued.
Proposed Solution: In the short term, the City and OPD (and for the period of time when the Monitor is standing in the shoes of OPD) must immediately be required to provide Case 3:00-cv-04599-WHO Document 1579-3 Filed 04/04/23 Page 7 of 10 7 of 9
regular closed session briefings to the Police Commission and its direct reports on the status of compliance issues that pose a risk to the City’s resolution of the NSA.
Over the medium term, the Commission and the City should coordinate to develop a recurring Commission agenda item that requests to receive all personnel documents from the City and OPD related to all its Charter authorities, consistent with Section 604(f)(2), and all three of the Department Heads under the Commission’s authority should routinely recommend any confidential files and records related to the Commission’s Charter authority that they believe the Commission should be requesting to successfully carry out its oversight authority.
Over the long term, the City may need to revisit Section 604(f)(2) of the Charter and determine if it is inconsistent with the purpose of civilian oversight for the Commission to be required to know about a confidential document it does not have before it can lawfully request and access that document.
B. CULTURAL ISSUES:
1. Issue: Chain of Command Instilling a Fear of Insubordination If Subordinate Officers Speak Up
Subordinate officers fear the prospect of insubordination, which chills their willingness to speak up, even when doing so would help keep Oakland in compliance with its reform tasks. This is a cultural issue that calls for a review of management training and a rethink of any aspects of chain of command culture that could compromise investigation integrity.
Proposed Solution: The Commission should review relevant aspects of OPD’s management training and help its leadership conduct a rethink of any aspects of chain of command culture that could compromise investigation integrity. OPD and the City should develop an anonymous channel to report investigation integrity issues, so subordinate officers feel more comfortable that they will not face adverse actions for calling attention to compliance concerns. The Commission, the Office of the Inspector General, and the CPRA should have access to the anonymous channel reports to ensure it can properly exercise Department oversight. Establishing this anonymous channel would be consistent with Recommendation #8 in the 2021 report issued by the City’s Reimagining Public Safety Task Force, which also mentions anonymous reporting (https://cao- 94612.s3.amazonaws.com/documents/Oakland-RPSTF-Report-Final -4-29-
21.pdf).
2. Issue: Lack of Distributed Leadership and Accountability at OPD Distributed leadership is a leadership model favoring the shared responsibility and accountability of multiple individuals within a workplace. Under a distributed leadership model, the CDC Report’s findings about the Police Chief would have extended to the Case 3:00-cv-04599-WHO Document 1579-3 Filed 04/04/23 Page 8 of 10 8 of 9
entire leadership team, including those who had knowledge of the pertinent events. There should have been documented standards setting the expectation of accountability for every individual in the decision-making chain, as well as witnesses to the decisions, that led to the Department failures culminating in the December 23, 2021 meeting.
Proposed Solution: OPD and the Commission must set the expectation going forward that all participants in the chain of decision-making related to internal investigations will be held to account for any issues they observed that compromise investigation integrity and best practices. In the medium term, the Commission should consider whether to require that every level of the chain of decision-makers involved in any given investigation must sign and be responsible for the finished product.
3. Issue: Availability of Mental Health Services and Support for Sworn Officers
Mental health challenges inherent to police work, if left unaddressed, lead to major compliance incidents. One investigation subject described another’s symptoms to include night terrors related to job duties. Oakland’s officers should get the best support and services we can offer. Untreated mental health issues on a police force have deleterious effects on individual officers, the culture of the entire police force, as well residents and community the force serves.
The City Council vested the Commission with the authority to review, comment, and propose the Department’s budget for "the management of job- related stress, and regarding the signs and symptoms of post-traumatic stress disorder, drug and alcohol abuse, and other job-related mental and emotional health issues.” (Oakland Municipal Code § 2.45.070(C), (D).)
Proposed Solution: The Commission should determine what services are offered and whether proactive outreach ensures officers feel supported in using the services. The Commission should also work to set about fostering a Department culture that rewards officers for self-care and commends them for seeking out and accepting needed services.
Accepting mental health services should be standard operating procedures. The Department should explore whether there should be mandated mental health evaluations on a periodic basis. With everyone having to undergo mental health evaluations, there will be less stigma attached to seeking services voluntarily.
4. Issue: OPD Officer Perception of Alleged Favoritism in Discipline Related to Task 45, the NSA Plaintiffs tie the findings and conclusions in the CDC Report to a general perception among a supermajority of officers that OPD’s discipline is not fair. One oft-cited but ambiguous quote from OPD employees is: “who you know, and to which cliques you belong, influence whether an investigation will be sustained and what level of discipline will be administered.”
Proposed Solution: OPD needs far more granular information about the widely expressed perception of unfair discipline, including information about what OPD Case 3:00-cv-04599-WHO Document 1579-3 Filed 04/04/23 Page 9 of 10 9 of 9
employees perceive as “cliques.” The Commission currently has an Ad Hoc Committee that is tasked with investigating allegations made by the members of the Oakland Black Officers Association (OBOA) that they are subject to more severe discipline than other officers, and will continue to work with an outside investigating firm to review these claims.
Conclusion
The Police Commission is designed to replace the proactive compliance work currently imposed by the Monitor and the Independent Monitoring Team, as the singular civilian oversight body with authority to make policy changes for OPD related to all NSA tasks, and the sole entity named in the City Charter that “shall oversee the Oakland Police Department.” (Charter Section 604(a)(1).)
Without committing to an exclusive list, the Commission should implement its final proposed plan using the following official actions:
● formal action by the Police Commission;
● official MOUs between the Commission, OPD, City officials, City agencies, and any other relevant Charter entities or stakeholders which will be made available to the public;
● new or revised OPD policies, procedures, training bulletins; ● recommendations pursuant to Charter Section 604(h) to the City Council to revise Sections 2.45.00 and 2.46.00 of the Municipal Code;
● seeking budget allocations to ensure and that cost savings from the transition of oversight from the Monitor and IMT are used to fully fund staff for the Commission, as well as the CPRA and the OIG, so they can all carry out their Charter obligations and maintain a proactive approach to reform; and ● recommendations to the City Council to put an additional ballot measure before the voters of Oakland.
Going forward, after the Police Commission approves a plan, implementation must, under the Charter, run through a public-facing, policy-specific ad hoc process that ensu res significant input and engagement from members of the public as well as the full Commission, with all final actions to take place after the April 4 Joint Case Management Conference Statement deadline.
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