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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. )
)
Plaintiffs, )
)
v. )
)
CITY OF OAKLAND, et al., )
)
Defendant(s). )
)
)
)
Case No. 00-cv-04599 WHO
JOINT CASE MANAGEMENT
STATEMENT
Date: Jan. 23, 2024
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
PLAINTIFFS’ STATEMENT ................................ ................................ ................. 1 PLAINTIFFS’ CURRENT POSITION ................................ ................................ ...... 1
I. TASK 2 (TIMELINESS STANDARDS AND COMPLIANCE WITH IAD INVESTIGATIONS)................................ ................................ ........................... 2 II. TASK 5 (COMPLAINT PROCEDURES FOR IAD)................................ .............. 4 III. TASK 45 (CONSISTENCY OF DISCIPLINE POLICY) ................................ ...... 6 CONCLUSION ................................ ................................ ................................ ......... 11 CITY’S STATEMENT................................ ................................ ............................. 15 OVERVIEW ................................ ................................ ................................ ............. 15 I. INTERNAL AFFAIRS COMPLAINT PROCEDURES (TASK 5)......................... 16
A. Key Measures Implemented by the Department in or Prior to April 2023 Maintained the Integrity of Internal Investigations in the Short Term Pending Official Policy Changes................................ ................................ .... 16
B. Mandatory Changes to Internal Investigation Processes Are Now Memorialized in Official Department Policy to Sustain the Integrity of Investigations in the Long Term................................ .................. 17
II. CONSISTENCY OF DICIPLINE POLICY (TASK 45) ................................ ....... 21
A. The Department Has Moved Beyond Compliance with the Technical Task Requirements, and for the Last Several Years Has Built an Effective Process to Detect and Eliminate Disparity................................ ...... 21
B. The Department’s Effective, Sustainable Process is the Culmination of Years of Tangible Progress ................................ ................................ ............ 22
III. INTERNAL AFFAIRS TIMELINES (TASK 2) ................................ ................... 25
IV. THE DEPARTMENT MAINTAINS AN EFFECTIVE RISK MANAGEMENT PROGRAM (TASKS 34 &41)................................ ................................ .............. 26
A. The Department’s Ongoing Effort to Reduce Racial Disparity in Non-Dispatch and Non-Intelligence Led Police Stops ................................ ... 26
B. The Department Analyzes Complaint Trends to Determine Where Additional Training or Investigation May Be Necessary or Beneficial ......... 29
V. OFFICER RECRUITING, ATTRITION, DEPARTMENT
DIVERSITY ................................ ................................ ................................ ...... 32
A. Recent Academy Demographics ................................ ................................ ..... 33
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B. The Impact on Diversity of Officer Recruitment and Attrition ...................... 34
C. The Department’s Efforts to Recruit, Retain, and Support Advancement of Female Officers ................................ ................................ ... 36
VI. OFFICERS USE REASONABLE FORCE AND DEPARTMENT FORCE REVIEW IS DEPENDABLE (TASKS 24, 25 & 30) ................................ ........... 37
A. The Department’s Office of Internal Accountability (OIA) Recently Completed Two Audits Involving Force Reporting ................................ ........ 39 B. The City Completed its Revision of Body-Worn Camera Policy ..................... 40
VII. THE CITY CONTINUES TO COMPLETE ADDITIONAL WORK TO SUPPORT LONG-TERM SUBSTANTANTIAL COMPLIANCE ...................... 40
A. The Department’s Examination of its Use of “Unfounded” Findings in Internal Investigations................................ ............................... 40
B. The City’s Office of Inspector General and Police Commission Prioritize Audits to Ensure Continued Compliance with All Tasks Involving the Department’s Internal Affairs Division and Racial Disparity in Policing ................................ ................................ ................................ .......... 42 CONCLUSION ................................ ................................ ................................ ........ 43 THE OAKLAND POLICE COMMISSION’S STATEMENT ................................ 45
I. OPD Demonstrated a Cultural Inability to Police Itself ................................ ...... 45
II. Civilian Oversight Enforces Police Accountability and Drives Culture Change ................................ ................................ ................................ .. 45
III. Effective Civilian Oversight Must be Centered, Resourced, and Collaborative ................................ ................................ ............................... 47
IV. The Oakland Police Commission, the Community Police Review Agency, and the Office of Inspector General are up to the Task of Civilian Oversight................. 49
A. Oakland Police Commission: A Policy and Civilian Oversight Body that Enhances Accountability to Precipitate a Change in Culture ...................... 49
B. Community Police Review Agency: Culture change driven and supported by CPRA’s independent, civilian investigations ................................ ................ 49
C. The Office of Inspector General: Sustaining and furthering big-picture and granular change through OIG’s audit authority ................. 51 V. Conclusion ................................ ................................ ................................ ........... 52 THE OPOA’S STATEMENT ................................ ................................ .................. 54
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1 JOINT CASE MANAGEMENT STATEMENT Case No. 00-cv-4599 WHO
PLAINTIFFS’ STATEMENT
PLAINTIFFS’ CURRENT POSITION
The Independent Monitor for the OPD has issued one NSA Sustainability Period Report (Sixth Report) since the last Case Management Conference statement. The original sustainability period involved 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 Sixth NSA Sustainability Period Report of the IMT, OPD is in compliance with ten 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 Fifth NSA Sustainability Period Report. However, according to the Fifth and now Sixth NSA Sustainability Report, the Department’s compliance status with this task may be in jeopardy.
2. Task 5 Internal Affairs Division (IAD) Complaint Procedures – in compliance when assessed by the IMT in the 79th Report; “Deferred” in the First NSA Sustainability Period Report, then deemed “not in compliance” according to the Second, Third, Fourth, and Fifth NSA Sustainability Period Reports, before now returning to compliance in the Sixth IMT Report.
3. Task 20 Span of Control – in compliance when most recently assessed in the Third NSA Sustainability Period Report.
4. Task 24 Use of Force Reporting Policy – in compliance per the sixth NSA Sustainability Period Report.
5. Task 25 Use of Force Investigations and Report Responsibility – in compliance per the Sixth NSA Sustainability Period Report.
6. Task 26 Force Review Board (FRB) – in compliance when most recently assessed in the Third NSA Sustainability Period Report).
7. Task 30 Executive Force Review Board (EFRB) – in compliance when most Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 5 of 59 1 2
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recently assessed in the Third NSA Sustainability Period Report).
8. Task 31 Officer-Involved Shooting Investigations Review Protocol – in compliance when most recently assessed in the Third NSA Sustainability Period Report.
9. Task 34 Stop Data – in compliance when most recently assessed in the Third NSA Sustainability Period Report.
10. Task 41 Use of Personnel Assessment System (PAS) and Risk Management – in compliance when most recently assessed in the Third NSA Sustainability Period Report.
As of this writing, OPD is not in compliance with one NSA task:
1. Task 45 Consistency of Discipline – this was in partial compliance during the First NSA Sustainability Period Report, then was moved to full compliance during the period covered Second NSA Sustainability Period Report. However, during the Third, Fourth, Fifth, and now Sixth Sustainability Period Reports, the IMT reported “no compliance finding” for this Task.
Plaintiffs’ attorneys agree with the IMT that OPD is not currently in compliance with Task 45 and are troubled by the downward trajectory of Task 2.
Four of the five Tasks that are being actively monitored by the IMT during the Sustainability Period were in compliance at the date of the most recent Case Management conference and remain in compliance according to the IMT’s Sixth NSA Sustainability Period Report. Task 5 is newly in compliance as of this report.
Plaintiffs will therefore focus on Tasks 2, 5 and 45, which will determine whether OPD is able to achieve full compliance with the NSA in the coming months.
I. TASK 2 (TIMELINESS STANDARDS AND COMPLIANCE WITH IAD
INVESTIGATIONS)
Task 2 requires that the Internal Affairs Department (IAD) of the OPD complete internal investigations in a timely manner. This task was inactive from Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 6 of 59 1 2
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2015 to July 2019, before abruptly falling out of compliance in the 62nd IMT Report.
Task 2 was out of compliance until February 2022, when OPD once again met the mathematical threshold required for compliance.
OPD policy requires that “at least 85% of Class I misconduct investigations and at least 85% of Class II misconduct investigations must be completed within 180 days to be considered timely.” Per DGO M-03, Class I offenses “are the most serious allegations of misconduct and, if sustained, shall result in disciplinary action up to and including dismissal and may serve as the basis for criminal prosecution.”
The IMT reviewed 41 Class I misconduct cases during the period covered by the Sixth OPD Sustainability and determined that 35 of these cases were completed in a timely manner. This represented an 85% timely-completion rate, which put OPD at exactly the 85% minimum-threshold required for compliance with NSA Task 2. During the period covered by the previous two OPD Sustainability Reports, the IMT determined that 89% and 87% of Class I misconduct cases were, respectively, completed in a timely manner. These compliance rates represent a marked decrease from one year ago, in December 2022, when the Second Compliance Report found that 100% of Class I misconduct cases were completed in a timely matter. (Second Sustainability Period Report, p. 3) The IMT also reviewed 137 Class II cases during the period covered by the Sixth OPD Sustainability Report and found that 130 were in compliance with established timelines. This represents a 96% timely completion rate, which is on par with the 95% timely completion rate during the period covered by the Fifth Sustainability Period Report.
Plaintiffs’ attorneys have previously lauded OPD for its progress on this Task, and it is empirically true that the Department remains at the NSA-mandated numerical thresholds required for compliance with Task 2. However, OPD was previously in compliance with this task for so long that it became inactive, before Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 7 of 59 1 2
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suddenly falling out of compliance with no warning. It is therefore critical that OPD remain vigilant about meeting the timeliness deadlines mandated by Task 2 going forward, lest they once again slip out of full compliance with Task 2.
The IMT’s review of Class I cases during the period covered by the Sixth Sustainability Period Report indicates that OPD just barely met the compliance threshold, completing the very minimum percentage of such investigations in the required timeframe. Compliance with this Task is simply a matter of arithmetic, and the 85% rate achieved by OPD during the reporting period covered by the Sixth Sustainability Period Report is the absolute minimum required by the NSA (and, as Plaintiffs; attorneys have repeatedly noted, the mandated 85% timely-completion rate is substantially lower than what is required by most other consent decrees).
Put another way: Task 2 compliance is categorically different from the other Tasks that remain under the purview of the IMT insofar as the threshold for compliance is strictly mathematical. Had even one more Class I investigation fallen outside of the established timelines, OPD would have once again fallen out of compliance with this Task. Given this, Plaintiffs’ attorneys encourage IAD to continue to aim for a compliance rate well above what is mandated by the NSA, so that the Department’s compliance with this Task isn’t contingent on any single investigation. The downward trend over recent reporting periods is extremely concerning and, if this trajectory continues, OPD will fall out of compliance with Task 2 imminently. This cannot happen if OPD wishes to exit the Sustainability Period.
II. 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:
• 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 Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 8 of 59 1 2
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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.
During the Sustainability Period the IMT had focused on subtasks 5.15 to
5.19 and subtask 5.21, which address the quality of completed IAD investigations.
Prior to the Sustainability Period, IMT determined that IAD investigations had improved to the standards mandated by the NSA and, in February 2022, OPD attained full compliance with Task 5. However, the First OPD Sustainability Report moved the status of Task 5 from “in compliance” to “deferred compliance”, and OPD was downgraded to “not in compliance” in the Second OPD Sustainability Report. In the subsequent Third, Fourth, and Fifth Sustainability Reports, OPD remained out of compliance with this Task.
Specifically, in the Fifth Sustainability Period Report, the IMT wrote:
In the aftermath of the report by [the Clarence Dyer firm], the Department was expected to create and implement specific policies relevant to the Internal Affairs function. While there has been organizational effort in this regard, to date, these policies have not been finalized. Further, there have been personnel issues within the Internal Affairs Division that are unsettling. We are hopeful that both the policy and the leadership issues will be successfully addressed. (Fifth Sustainability Period Report, p. 9)
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The most recent Sixth Sustainability Report finds that “the Department has now created and implemented specific policies relevant to the Internal Affairs function.” (Sixth Sustainability Report, p. 9). It appears that OPD has finalized the policy changes that have been in the works since the Clarence Dyer Reports was published. Plaintiffs’ attorneys have been active participants in this process and can report that many of the policies they have worked to craft with various stakeholders within the Department are now published and in effect.
When the NSA was put into effect in 2003, there were three components to each task: Policy Compliance, Training Compliance and Practice Compliance.
Plaintiffs’ attorneys are satisfied that the policy component is in compliance.
According to the OPD Office of Inspector General, OPD is in basic compliance with the training component of these tasks. As for practice compliance, Plaintiffs’ attorneys have been informed that these policies have been in effect since November 30, 2023. It would be helpful if the Monitor could meet and confer with the OPD and inform us if the Department has achieved practice compliance with these tasks and if not, their best estimate as to when they expect such compliance to be attained.
III. TASK 45 (CONSISTENCY OF DISCIPLINE POLICY)
Task 45 requires that discipline is imposed in a fair and consistent manner.
OPD was in compliance with this NSA Task at the outset of the Sustainability Period. However, following the publication of the Clarence Dyer Report, the IMT downgraded OPD’s compliance status with Task 45 to “no compliance finding”, citing “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). OPD has remained out of compliance with Task 45 ever since, including in the most recent Sixth Sustainability Period Report.
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The Sixth Sustainability Report describes the Department’s work “to address cultural issues which, when unaddressed, perpetuate actual or perceived disparities” as a “work in progress.” (Sixth Sustainability Period Report, p. 17) Specifically, the IMT notes that the Department has made efforts to address disparities within the Department “through both analysis and policy”, but that disparities nevertheless “continue within the Department.” (Sixth Sustainability Period Report, p. 17)
At the end of 2023, OPD issued a report titled “2022 Analyses of Race in Internal Investigations Outcomes and Discipline: Supplemental Report Examining Failure to Accept or Refer Complaints” (“OIA FTARC Report”). (See Exhibit 1) This report follows an earlier investigation which discovered differences “in the discipline between white and Black officers for the allegation of a Manual of Rules Violation for Failure to Accept or Refer a Complaint (FTARC).” (OIA FTARC Report, p. 3).
According to the supplemental report, there were 112 allegations of FTARC.
The below table, incorporated on page 6 of the OIA FTARC Report, provides a breakdown of FTARC allegations compared to the demographics of OPD:
Another table, also on page 6 of the OIA FTARC Report, shows the sustained rate for FTARC allegations within OPD:
///
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The OIA FTARC Report itself noted that the wildly divergent sustained rates for white sworn members (26%) and Black sworn members (60%) represent “a statistically significant difference.” (OIA FTARC Report, p. 6).
The OIA FTARC Report also examined the rationale for other-than-sustained findings for Failure to Accept and Refer a Complaint allegations by race in 2022. A chart, with a breakdown by “theme” and race, is incorporated on page 9 of the OIA FTARC Report:
This chart indicates that white and Asian officers were much more likely than Black officers to be not sustained or exonerated because Internal Affairs could Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 12 of 59 1 2
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not prove that an officer heard the subject’s request. The “cannot prove officer heard” theme only applied to 38% of FTARC non-sustained findings for Black officers, but 54% and 60% of such findings for white and Asian officers, respectively.
Plaintiffs’ attorneys have noted that supervisors and command staff often receive lighter discipline than rank-and-file officers. It was therefore unsurprising that the OIA review of the FTARC data in 2022 revealed that Officers received more FTARC allegations than command-level personnel, and that those allegations were sustained at higher rates for officers than command-level personnel:
(OIA FTARC Report, p. 14)
As this graph shows, officers account for 84% of FTARC allegations, while Sergeants account for just 15% and Lieutenants account for less than one percent.
Officers were also sustained at a much higher rate (43%) than Sergeants (29%), while Lieutenants were not sustained at all.
Given that black officers were more likely to be sustained than their colleagues, and that officers were more likely to be sustained than command-level Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 13 of 59 1 2
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personnel, it follows black officers were sustained at the highest rates and white commanders were sustained at the lowest rates. Specifically, the Sustained rate for Black officers was 57%, the highest of any officer race group. The Sustained rate for Black Sergeants was a whopping 67%, the highest of any Sergeant race group. And the Sustained rate for white Sergeants – zero percent – was the lowest for any Sergeant race group. (OIA FTARC Report, p. 14)
OPD’s Office of Internal Accountability should be applauded for this thorough investigation. The authors of this report were candid, meticulous, and specific about the obvious discrepancies that the data reveal. However, the myriad disparities in OPD’s internal discipline system described in the FTARC Report do not meet the standards mandated by Task 45 of the NSA. OPD cannot be in compliance with Task 45 while it imposes inconsistent discipline.
What is the solution to the disparity issues that plague Task 45? One solution is to give sergeants less discretion in imposing FTARC discipline. In December, 2023, the OPD promulgated Special Order 9213 which attempted to set forth specific standards when “a person expresses specific dissatisfaction with an aspect of police service to a member, but does not request to file a complaint or to speak with a supervisor”. This followed a memo from Deputy Chief Clifford Wong on September 18, 2023 which gave recommendations “to aid the Department within findings and disciplinary outcomes”. A lesson plan was formulated to educate Department members on Special Order 9213. The OPD has informed us that all officers have received this training.
The results of all this activity need to be reported to the OPD Chief, the Police Commission, the Monitor/Compliance Director, and the Plaintiffs’ Attorneys.
It is imperative that FTARC findings and discipline be done in a race neutral manner. We look forward to the results of all of these reforms and expect a sharp drop in the inequities disclosed to date. At the same time, we want a solution that does not stifle police community relations to the point that Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 14 of 59 1 2
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the focus shifts to the officers feeling that they must constantly ask citizens if they want to file a complaint.
CONCLUSION
Recently, plaintiffs’ attorneys became aware of the fact that there is only one female in the current Academy class. We have brought this issue up over the years as a major failure of the Oakland Police Department. Despite our concerns, not only has there been no progress, but the OPD is moving backwards in the number of women it recruits into the Academy.
The OPD is aware of this shortcoming and has proposed a comprehensive program to recruit more women into the OPD Academy. Whether these promises are fulfilled will play out in the future. However, the fact remains that an Academy Class with one woman in it is a level unknown to Plaintiffs’ attorneys in years. This problem must be corrected without delay.
While OPD has reattained compliance with Task 5, the IMT once again found “no compliance status” regarding Task 45. The recent “OIA FTARC Report” by the Oakland Police Department Office of Inspector General makes a very strong case that the OPD is not in compliance with this task. Other statistics suggest that OPD is backsliding on Task 2, and only met the very minimum threshold for compliance with that Task. Put another way: while the Department represents that it is on the cusp of full compliance with the NSA, it has not yet achieved compliance with Task 45, and its Task 2 compliance is extremely tenuous. There is still work to be done.
While the “OIA FTARC Report” is disturbing, the fact that it could be written at all by an OPD member demonstrates how far the Department has come in recent years. The level of introspection and analysis, despite a result highly critical of the Oakland Police Department, demonstrates a level of introspection that is deserving of high praise for the report’s completeness as well as the fact that it was not censored or dramatically rewritten ty the command staff.
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numbers of complaints against OPD in 2023. This spike is troubling and worthy of scrutiny and introspection by the Department and might impact multiple NSA Tasks.
According to the most recent (336th) Compliance Update reviewed by Plaintiffs’ attorneys, year-to-date misconduct complaints and sustained misconduct complaints have increased dramatically:
OPD previously explained that the rise in complaints was related to an increase Class II allegations, including: a 56% increase in complaints related to improper search/seizure/arrest, a 103% increase in complaints related to care of property, a 46% increase in complaints related to preventable collisions, a 33% increase in complaints related to general performance of duty, and an 11% increase in complaints related to conduct toward others. (334th Compliance Update, pp. 1-2).
Subsequent Compliance Update Reports have not detailed what actions, if any, the Department has taken to uncover and/or address the reasons for this spike across the board, which may very well impact multiple NSA Tasks.
Plaintiffs’ attorneys also note that the 336th Compliance Update actually encompasses data from January through September 2023. Apparently, the City of Oakland and the Department are continuing the process of rebuilding multiple computer-based systems following the February 8, 2023 ransomware attack on Oakland. The 336th Biweekly Compliance Update notes that “the Vision database has not yet returned to fully operational status. User may once again enter data but the ability to extract “reports” and compare data from within Vision has not yet Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 16 of 59 1 2
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been fully restored.” (336th Compliance Update, p. 1)
This attack on the City’s and the Department’s computer infrastructure is, of course, an external criminal act. It is nonetheless critical that these systems are restored to their full functionality and/or rebuilt as soon as possible. Task 34 requires OPD to complete a basic report on all vehicle stops, field investigations, and detentions, and to compile this information into a database that can be searched, queried, and reported by OPD. Task 41 pertains to the Use of a Personnel Assessment System (PAS) and Risk Management, and requires OPD to develop a risk management system to audit the performance of specific members, employees, supervisors, managers, units, and the Department as a whole. Neither of these Tasks can be in actual, real-world compliance unless and until Vision functionality is fully restored.
Finally, as of this writing, it is widely reported that the Oakland Police Commission has forwarded three candidates for Oakland’s next Chief of Police to Mayor Sheng Thao. Mayor Thao has rejected these candidates. Recently, the Police Commission announced it would submit further nominations to the Mayor on or about March 1, 2024.
While having no Chief of Police for over one year by March 1, 2024 might ordinarily be extremely disruptive to any police department, the guidance of Acting Chief Allison has gone a long way to preventing this from happening. He has done a commendable job of leading the OPD through what otherwise would be a more chaotic time in its history.
It must be noted that this selection process has been far less transparent than the previous search for a permanent Chief of Police. During the search that ultimately led to the appointment of Chief Armstrong in 2020-2021, the finalists participated in public events where citizens were able to ask questions about their vision for the Department they wish to lead. Various local organizations, including the Oakland Chapter of the NAACP and the Coalition for Police Accountability, Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 17 of 59 1 2
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have called on Mayor Thao to hold a public forum for any finalists for the Chief position, and Plaintiffs’ attorneys agree that such transparency would benefit all parties, including the citizens of Oakland.
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THE CITY’S STATEMENT
OVERVIEW
The City is in substantial compliance with the Negotiated Settlement Agreement (NSA). The NSA defines substantial compliance “as meaning that OPD has complied with the material provisions of the Agreement. Materiality is determined by reference to the overall objectives of the Agreement. Non-compliance with technicalities or, otherwise, minor failures to comply while generally complying with the Agreement, shall not be deemed failure to substantially comply with the Agreement.” Dkt. 169, Negotiated Settlement Agreement 62:7-12.
It is undisputed that the City is in compliance with 50 of 51 tasks. It has sustained compliance with 49 tasks for well over one year. The City asks the Court to backdate the City’s compliance with Internal Affairs Complaint Procedures (Task 5) to April 4, 2023, to account for the fact that the City successfully took immediate measures to comply with all subtasks pending the now-published new and revised policy mandates. If the Court grants that request, then the City will have sustained compliance with 50 of 51 tasks for at least one year as of April 4, 2024. By that date, the City is also hopeful that the Monitor will agree that the City is in compliance with the remaining task, Consistency of Discipline Policy (Task 45). While the Monitor has not stated that the City is “out of compliance” with Task 45, the Monitor has nonetheless continued to withhold an affirmative “in compliance” assessment. The City expected to receive an “in compliance” assessment for Task 45 in the Monitor’s most recent report and is disappointed that there was no compliance finding despite the Monitor’s recognition that the Department had addressed the issues the Monitor identified concerning discipline fairness.
Based on the foregoing, assuming no significant compliance issues arise in the next quarter, the City asks that on or about April 4, 2024, the Court deem the City in substantial compliance with the NSA, terminate the NSA, and end further oversight.
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In this status report, the City discusses: (1) Internal Affairs complaint procedures (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 (Tasks 34 & 41), (5) officer recruiting, and attrition, and diversity, (6) force and force investigations (Tasks 24, 25 & 30), and (7) the City’s additional work supporting sustained substantial compliance.
I. INTERNAL AFFAIRS COMPLAINT PROCEDURES (TASK 5)
The Monitor agreed in its most recent report that the Department has regained compliance with Task 5.
A. Key Measures Implemented by the Department in or Prior to April 2023 Maintained the Integrity of Internal Investigations in the Short Term Pending Official Policy Changes.
As the City worked to publish new and revised policies mandating changes to the Department’s internal investigations processes, on or prior to April 4, 2023 the Department began employing practices to immediately prevent recurrence of the types of deficiencies identified in the outside investigator’s report. Dkt. 1597, Joint Case Management Statement 2-3 (Apr. 4, 2023). These stopgap measures strengthened the Department’s investigation processes and allowed the Department to immediately correct Task 5 deficiencies in the short term while awaiting official changes in policy. Since the Department began employing these temporary measures, the Monitor has not reported deficiencies in the Department’s internal investigations of the type or significance of those reported in or prior to January 2023. As discussed in greater detail in our last court filing, the Monitor’s June and September assessments of Task 5 (Dkts. 1593 & 1602, Fourth and Fifth NSA Sustainability Period Reports of the Independent Monitor) were substantially similar to its assessments during the eight-month period it previously found the Department “in compliance” with Task 5. Dkt. 1604, Joint Case Management Statement 26-27 (Sept. 19, 2023) (comparing recent assessments with Dkt. 1505, Seventy-Ninth Report of the Independent Monitor 8-9 (Feb. 22, 2022) and Dkt. 1519, Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 20 of 59 1 2
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Eighty-First Report of the Independent Monitor 8-9 (Apr. 26, 2022)). The Monitor’s June and September 2023 reports noted long-term compliance on most subtasks.
Dkt. 1593, Fourth NSA Sustainability Period Report at 7; Dkt. 1602, Fifth NSA Sustainability Period Report at 7. In fact, during the two reporting periods from April to September, the Monitor did not identify any issues that would keep the Department from regaining compliance apart from the lack of formal policy mandates.
B. Mandatory Changes to Internal Investigation Processes Are Now Memorialized in Official Department Policy to Sustain the Integrity of Investigations in the Long Term.
The Department has published and implemented all outstanding policies originating from the outside investigator’s recommendations and addressing all identified deficiencies. Chart 1 shows the new and revised policies that further strengthen the Department’s internal investigation processes, and the dates each policy was officially published in the Department’s online policy management platform.
As soon as the Department published and implemented formal policy changes to its internal investigations processes to address the outside investigator’s recommendations, the Monitor changed its Task 5 assessment back to “in compliance.” Dkt. 1618, Sixth NSA Sustainability Period Report of the Independent Monitor 9 (Dec. 18, 2023). This further supports the conclusion that but for policy implementation, the Department was otherwise in compliance with Task 5 during the two prior reporting periods between April and September 2023.
For these reasons, the City asks that the Court consider crediting the Department with Task 5 compliance beginning on or about April 4, 2023. ///
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Chart 1: New and Revised Policies Implemented in Response to Recommendations
Yellow = Recommendation added by the City
Recommendation
New or Revised (Rev.) 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)
New policy
published by the
Department in
PowerDMS
(online policy
repository) on
Nov. 30, 2023.
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.)
Internal Affairs Division (IAD)
Meeting Attendance Roster (rev.)
Investigator and Reviewer
Conflict/Recusal Forms (rev.)
Revised policy
published by the
Department in
PowerDMS on
Nov. 30, 2023.
OPD should adopt a
policy that requires
approval and
documentation of all
changes to draft Reports
of IAD Investigations.
IAD Policy and Procedure Manual
(rev.)
Training Bulletin V-T.01, Internal
Investigation Procedure Manual
(rev.)
Internal investigation report
template (rev.)
Addendum [reviewer
disagreement] template (rev.)
Revised policies
published by the
Department in
PowerDMS on
Nov. 30, 2023.
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Executive 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
(rev.)
Revised policy
published by the
Department in
PowerDMS on
Nov. 30, 2023.
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
(rev.)
[Note: Chief is mandated to read a
subset of sustained cases. A
deputy chief must also review of
subset of sustained cases as well
as a subset of not-sustained cases.
The Department revised its
Executive Summary of the case
presentation outline which
displays facts and circumstances
that should raise flags and spur
follow-up questions.]
Revised policy
published by the
Department in
PowerDMS on
Nov. 30, 2023.
OPD should review its
implementation and
training regarding
policies governing OPD
members’ use of OPD-
issued cellular telephones
and personal cellular
telephones, and prohibit
the use of personal
cellular telephones for
work-related
communication.
Updated training PowerPoint.
Conducted additional lineup
training.
Created quiz for members.
Completed prior
to Apr. 2023. See
Dkt. 1579, Joint
Case
Management
Statement 27
(Apr. 4, 2023).
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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 completed an
IB rather than changing the
Manual of Rules (MOR) fitness for
duty definition which could result
in members’ mental health issues
being viewed and treated as
misconduct.]
Completed.
Information
Bulletin re
Psychological
Fitness for Duty
Evaluations
published on
Aug. 29, 2023.
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
Revised policy
DGO M-
4.1published by
the Department
in PowerDMS on
Nov. 30, 2023.
CID
Investigative
Training
Program 23-01
published on
Sept. 12, 2023
.
Improve communication
and coordination with
CPRA and OPC.
Facilitate CPRA’s ability
to select appropriate
cases for parallel
investigation and CPRA’s
ability to conduct
separate, independent
investigations.
IAD Policy and Procedure Manual
(rev.)
DGO M-4.1, Criminal
Investigation of Department
Members and Outside Sworn Law
Enforcement Personnel (rev.)
Revised policies
published by the
Department in
PowerDMS on
Nov. 30, 2023.
///
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II. CONSISTENCY OF DISCIPLINE POLICY (TASK 45)
The City was surprised that the Monitor’s most recent report offered “no compliance finding” on Task 45. The City’s position is that it has achieved substantial compliance with Task 45.
A. The Department Has Moved Beyond Compliance with the
Technical Task Requirements, and for the Last Several Years Has Built an Effective Process to Detect and Eliminate
Disparity.
The requirements for Task 45 are set forth in each of the Monitor’s reports preceding its assessment:
OPD shall revise and update its disciplinary policy to ensure that discipline is imposed in a fair and consistent manner.
1. The policy shall describe the circumstances in which disciplinary action is appropriate and those in which Division-level corrective action is appropriate.
2. The policy shall establish a centralized system for documenting and tracking all forms of discipline and corrective action, whether imposed centrally or at the Division level.
3. All internal investigations which result in a sustained finding shall be submitted to the Discipline Officer for a disciplinary recommendation. The Discipline Officer shall convene a meeting with the Deputy Chief or designee in the affected chain-of-command for a confidential discussion of the misconduct, including the mitigating and aggravating factors and the member/employee’s overall performance.
4. The COP may direct the Discipline Officer to prepare a Discipline Recommendation without convening a Discipline Conference.
For nearly 20 years, the Monitor “assessed Task 45 by reviewing the structure of the disciplinary process, the outcomes of cases with sustained findings, and whether the required information was included in the [Vision] database. The Department also developed a Disciplinary Matrix.” Dkt. 1578, Third NSA Sustainability Period Report of the Independent Monitor 31 (Apr. 3, 2023). The Monitor used to devote several pages discussing and analyzing the Department’s Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 25 of 59 1 2
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compliance with these task requirements. See, e.g., Dkt. 1494, Seventy-Seventh Report of the Independent Monitor 15-18 (Dec. 8, 2021). This is in stark contrast with the Monitor’s six-sentence and four-sentence commentaries in its last two sustainability period reports, respectively, which omit any analysis of the task requirements.
In fact, the Monitor conceded that “those criteria were satisfied.” Dkt. 1578, Third NSA Sustainability Period Report at 31. It was only after the Department of its own volition commissioned a study of its investigation and discipline outcomes and the “Department’s increasing capacity for analysis [ ] led to its current practice of involving internal statistical reviews of discipline-related data,” that the Monitor began withholding a compliance finding. See id. The Monitor’s recent criticisms are focused solely on the sufficiency of the Department’s ongoing years-long efforts to pioneer sustainable transformation of its discipline process using a data-driven approach. Id. These extraordinary efforts, however, and the memorialization in policy of its effective analytical processes, prove that the Department is in compliance with and deserves an “in compliance” assessment on Task 45.
B. The Department’s Effective, Sustainable Process is the Culmination of Years of Tangible Progress.
The Department has a policy that requires IAD’s ongoing review of investigation outcomes and discipline to flag potential disparity as early as possible.
Policy requires the Department to produce an annual report of its investigation outcomes and discipline analyses. The Department has created and refined with the assistance of Stanford University researchers and the Monitor a comprehensive methodology for analyzing investigation outcomes and discipline. As part of that process, the Department rebuilt its data collection and reporting mechanisms to ensure its data was robust and reliable. The Department has increased data-field reporting and refined the methodology for analysis as its facility with the use and interpretation of the data expands. The Department used the written methodology Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 26 of 59 1 2
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to complete a thorough investigation of its 2022 investigation outcomes and discipline. The Department identified an area of concern and ultimately successfully determined despite a very small sample size that there was some disparity: Black officers were sustained at a higher rate for Failure to Accept or Refer Complaints (Unintentional). The Department further investigated to determine what was causing the disparity. As is often the case with social science data analyses, the Department did not find a single cause or a direct causal link. But the Department used its methodology to locate points in the investigation process where bias might more readily creep in—points in the process where individual investigators’ decision making may have a greater impact on a case outcome. The Department identified two key points in the process: (1) addition of an allegation by an investigator during the course of their investigation of a complaint of other misconduct, and (2) interpretation and application of the Department’s rule to the facts of a particular case.
To eliminate the disparity, the Department revised Departmental General Order M-03, Complaints Against Department Personnel and Procedures (revised by Special Order 9213 on Dec. 5, 2023) to promote consistent interpretation and application of policy. The Department further revised M-03 to allow allegations of unintentional failure to accept complaints that are discovered by investigators in the course of investigating unrelated allegations (referred to as “self-discovered” allegations) to be handled with a supervisory note to file (SNF) if there is no pattern of misconduct. This will allow the Department to handle the types of allegations where disparity was observed consistently with the way it handles other self- discovered Class II (lower level) misconduct allegations. The Department also revised Internal Investigations Training Bulletin V-T.1, and IAD Policy & Procedures Manual to improve transparency in Division Level Investigation (DLI) reporting. See Chart 1, supra. Thus, in 2023 the Department revised three of the five policies the Monitor lists as “incorporating the requirements of Task 45.” In Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 27 of 59 1 2
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addition, the Department added a quality control training for all commanders to its 2023 Command Retreat Seminars, as well as formal tracking to identify differences in recommended findings on allegations within the Department as well as between the Department and the CPRA or other oversight body. See Ex. 2, Department Response Memorandum Re Supplemental Reporting Examining Failure to Accept or Refer Complaints (Sept. 2023), also at https://www.oaklandca.gov/documents/2022- internal-investigation-outcome-and-discipline-reports (last visited Dec. 29, 2023).
These concrete steps demonstrate the Department’s ability to thoughtfully analyze data, investigate beyond the data, and direct meaningful change.
The Department has now twice repeated the cycle of following through on its analysis of investigation outcomes and discipline data, each time demonstrating a stronger aptitude for effectively addressing observed disparity. See Ex. 2, Department Response (Sept. 2023); and Department Response to Risk Analysis Unit Disparity Study (Sept. 2022), https://www.oaklandca.gov/topics/police-data https://cao-94612.s3.us-west-2.amazonaws.com/documents/Dept-Response-and-OIA- Discipline-Equity-and-Internal-Proc-Justice-Report-Sept-2022.pdf (last visited Jan. 3, 2024). The Department’s completed work has resulted in a sustainable, effective process for ensuring fairness in internal investigation outcomes and discipline. The Department’s achievement well exceeds any measures or expectations set forth in the Monitor’s compliance assessments from 2003 through 2021.
The Department is on schedule to begin its initial analysis of the 2023 internal investigation outcomes and discipline data in the first quarter of 2024 as soon as it confirms the 2023 dataset is complete. The Department hopes to have at least some preliminary written analysis completed by the end of March 2024. As it continues to repeat its annual cycle of analyzing case outcomes and discipline, the Department may uncover disparity in investigation outcomes or discipline.
Discovering that disparity may exist, however, should never dictate lack of task compliance. Rather, the focus more appropriately lies with the Department’s Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 28 of 59 1 2
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demonstrated willingness and ability to effectively address observed disparities.
The Monitor’s recent brief commentary on Task 45 credits the Department with “creating tangible and sustainable policies and practices to ensure that members of the organization are treated equitably [ ] through both analysis and policy.” See Dkt. 1618 at 17. The Monitor’s sole criticism is that the Department needs to “strive to address cultural issues which, when unaddressed, perpetuate actual or perceived disparities.” Id. The Department’s commission of a first-of-its- kind discipline disparity study and development of its own sustainable methodology to internally detect unfairness in investigation outcomes and discipline is, for all practical purposes, the definition of striving to address in a transparent manner the cultural issues that perpetuate actual or perceived disparities.
While the City appreciates that NSA task compliance is not a check-the-box exercise, “I know it when I see it” is not an appropriate compliance standard. For the foregoing reasons, the City believes an in-compliance assessment on Task 45 is appropriate and is hopeful that the Monitor reaches the same conclusion in its next report.
III. INTERNAL AFFAIRS TIMELINES (TASK 2)
The Department remains in compliance with Task 2. Sixth NSA Sustainability Report of the Independent Monitor, supra at 3. In the third quarter of 2023, the Department timely completed 85% of Class I and 96% of Class II investigations. Id.
The Department completed the discipline recommendation process within 30 calendar days of a sustained allegation in 98% of cases. Id.
The Department is working collaboratively with the CPRA to ensure both entities are making best efforts to permit the Department to achieve compliance with the timelines required under this task. There will likely always be instances, however, where either one or both entities require more than 180 days to complete Class I investigations in a manner that maintains appropriate quality and thoroughness of serious and/or complex investigations.
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In addition, the Department is continually assessing its procedures to improve investigative efficiency and timely completion. The Department is currently exploring whether there are certain types of allegations where an abbreviated investigation may be appropriate. For example, allegations of unlawful arrest where officers have an arrest warrant or the arrest is otherwise mandated by law or policy. Focusing time and resources on allegations that warrant more rigorous investigation and analysis will ultimately improve overall investigative efficiency and case completion rates.
Finally, the Department has had to redouble its efforts to timely complete investigations in the wake of the ransomware attack on the City early last year. The attack resulted in significant disruption to internal investigations and investigation tracking that continues to impact the investigation timelines. Despite challenges, the Department has continued to meet its internal investigation timelines.
IV. THE DEPARTMENT MAINTAINS AN EFFECTIVE RISK
MANAGEMENT PROGRAM (TASKS 34 & 41)
The Department’s risk management program provides a valuable foundation to discuss issues involving individual officers, patterns among officers, and stop data.
A. The Department’s Ongoing Effort to Reduce Racial Disparity in Non-Dispatch and Non-Intelligence Led Police Stops.
The City remains mindful that at the heart of this case is racial disparity in policing. The Department has a well-established culture of vigilance rooted in its risk management program through which it constantly reexamines practices that may have a disparate impact or unintentionally foster bias.
Stop data, particularly for non-dispatch stops,1 represents potential risk—it
1 A non-dispatch stop is a stop made because 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 Q2 2023 1, https://www.oaklandca.gov/resources/2023-stop-data-and-reports (last visited Sept. 18, 2023). A dispatch stop is a stop made when an officer responds to an incident after a police dispatcher receives a call and relays information to the officer. See id.
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may reveal disparity in police practices and must be analyzed as part of the Department’s risk management interests. The Department has used data and directives to reduce non-dispatch, non-intelligence led stops. The Department analyzes non-dispatch and non-dispatch, non-intelligence led stops separate from dispatch stops to focus in on the types of stops where bias may creep in, stops that are not the result of a dispatch call or specific intelligence, stops where an individual officer’s decision making may play a greater role.
The Department is and has been particularly concerned with the historical overrepresentation of African Americans among those detained in police stops. The Department’s focus on reducing stops that may be the result of prejudice or unconscious bias has yielded a significant reduction in African American stops, especially in the last several years. The Department’s annual average non-dispatch stop rate for African Americans between 2014 to 2020 was greater than 56%, with a quarterly high of 66% in 2016. See Dkt. 1423, Joint Case Management Statement 30 (Feb. 12, 2021); and Dkt. 1515, Joint Case Management Statement 50 (Apr. 20, 2022). In 2021, the Department’s African American non-dispatch stop rate fell to 50%. And in 2022 and 2023, the Department’s African American non-dispatch stop rate was well below 50%. See Fig. 1.
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Fig. 1, Slide from Nov. 2023 Citywide Risk Management Meeting
When intelligence-led stops2 are removed, the Department’s African American stop rate is even lower, dropping to 37% in the second and third quarters of 2023. See Fig. 2.
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2 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.
OPD Quarterly Stop Data Report Q2 2023, supra 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. Id.
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Fig. 2, Quarterly Non-Dispatch, Non-Intelligence Led Stop Rate by Race 2020-2023, data available at https://www.oaklandca.gov/resources/stop- data (last visited Jan. 3, 2024).
B. The Department Analyzes Complaint Trends to Determine Where Additional Training or Investigation May Be Necessary or Beneficial.
From 2022 through the third quarter of 2023, the Department observed an overall upward trend in the number of misconduct complaints against Department members. The Department received the most complaints in the second quarter of 2023 (583). That number fell to 489 in the third quarter of 2023. See Fig. 3. ///
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Fig. 3, Slide from Nov. 2023 Citywide Risk Management Meeting Many complaints include multiple misconduct allegations. Thus, while there were 492 complaints in the third quarter of 2023, those complaints involved hundreds more allegations. The most frequent misconduct allegations in 2023, accounting for 540 allegations, were Performance of Duty (POD) – Unintentional/Improper Search, Seizure, or Arrest; POD – General; Use of Force Comparable to Level 4; Conduct Toward Others – Demeanor; Preventable Collision; Care of Property; and Failure to Accept or Refer a Complaint (Unintentional). See Fig. 4.
“Performance of Duty – General” encompasses misconduct allegations involving an officer’s job responsibilities that are not specifically captured in another, more specific Performance of Duty misconduct category. See Fig. 5. ///
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Fig. 4, Slide from Nov. 2023 Citywide Risk Management Meeting _____
Fig. 5, Slide from Nov. 2023 Citywide Risk Management Meeting
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Comparing the sustained rates for internal investigations completed in 2023 involving the same types of allegations most frequently the subject of complaints in 2023, it is significant to note that there were no sustained findings for unintentional/improper search, seizure, or arrest; and only two sustained findings for use of force comparable to Level 4. See Fig. 4. Therefore, although there was an increase in allegations of these types, case findings do not thus far indicate an increase in or pattern of officer misconduct involving force or constitutional rights violations. The Department took action, however, to address the number of preventable vehicle collisions and sustained allegations of failure to accept or refer a complaint (unintentional). Id. The Department discussed risk mitigation at length for both categories of misconduct—preventable vehicle collisions and failure to accept or refer complaints—during the Citywide Risk Management Meeting in November 2023, as well as in Bureau level and Area level meetings. In addition, as noted above the Department recently completed a thorough analysis of complaints involving failure to accept or refer complaints (unintentional) and, as a result, changed complaint policy (DGO M-03) and is conducting training on the changes to policy.
The Department continues to demonstrate understanding and effective use of its data through its risk management program. The Department’s systematic risk analysis has informed recent policy modifications, training, and command directives.
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 OPD Biannual Staffing Report (Nov. 29, 2023) 12-21, available at
https://oakland.legistar.com/calendar.aspx, Dec. 19, 2023 Concurrent Meeting of the Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 36 of 59 1 2
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Oakland Redevelopment Successor Agency and the City Council, Agenda Item 9 (last visited Dec. 15, 2023).
Between April and September 2023, the Department hosted or attended 59 recruitment events. Id. at 16. Fifty-four of the 59 events were in-person; five occurred virtually, online. Id. Thirty-one of the in-person recruitment events occurred in Oakland. Id. The in-person Oakland events included cadet recruitment at two local high schools, career fairs at Merritt College, Laney College, and the Native American Health Center, and the Black Women Thrive Summit. Id. at 18-
21. The Department has also promoted diversity, equity, and inclusion by providing extra assistance to potential applicants through multiple physical ability test workshops—including a workshop specifically for women, oral exam workshops, and webinars. Id. The Department launched a Zoom workshop in August entitled “Life in the Academy” to give potential applicants a real-life look inside Oakland’s police academy and the lives of actual trainees. Id. at 20.
A. Recent Academy Demographics.
In November 2023, the Department commenced its 193rd Basic Academy.
The academy is a 24-week program which will run through May 10, 2024. Tables 1 and 1A below reflect the demographics of the 22 police officer trainees who entered the 193rd Academy. Two of the trainees are Oakland residents. ///
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Table 1: OPD’s 193rd Basic Academy Demographics (Nov. 2023)
Table 1A: Race/Ethnicity & Gender in OPD’s 193rd Academy (Nov. 2023)
B. The Impact of Officer Recruitment and Attrition on Officer Diversity.
Officer attrition and the Department’s recruiting efforts continue to contribute to changes in the demographics of sworn officers. After experiencing an elevated attrition rate in 2021 and the first half of 2022, rising as high as 11 officers per month, the Department has averaged an attrition rate of 3-4 officers per month for the past eighteen months. Id. at 15; Oakland Police Dept. Quarterly Staffing Report (Q1 2023) 15, available at https://oakland.legistar.com/calendar.aspx, Sept.
Gender Race/Ethnicity Residency Language Education
Female 5 Asian 5 Oakland 2 Spanish 5 High School 5
Male 17
Black or
African
American
4 Other 20 Portuguese 2 Some College 9
Hispanic 6 Arabic 1 AA/AS 2
White or
Caucasian 5 Dari 1 BA/BS 6
Other 2 Farsi 1
Hindi 1
Japanese 1
Punjabi 1
Total 22 Total 22 Total 22 Total 13 Total 22
Race/Ethnicity Female Male
Asian 2 3
Black or African American 2 2
Hispanic 6
White or Caucasian 1 4
Other 2
Total 5 17
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26, 2023 Public Safety Committee Meeting, Agenda Item 4 (last visited Dec. 15, 2023). The Department expects that average rate to continue into 2024. OPD Biannual Staffing Report (Nov. 29, 2023), supra at 15. That rate is slightly lower than the 5-officers-per-month attrition rate between 2016-2020. See Dkt. 1541, Joint Case Mgmt. Statement 39 (Oct. 6, 2022). Demographic changes have resulted in a complement of officers that more closely resembles the City’s racial demographics. OPD Biannual Staffing Report (Nov. 29, 2023), supra at 14.
Table 2: Race/Ethnicity and Gender of OPD Sworn Staff (Sept. 30, 2023) Compared With 2021 Oakland Population Demographics
Race/Ethnicity Female Male
Total
Percentage
of Sworn
Staff
US 2021
Census-
Oakland
Population3
Asian 8 101 15.3% 15.7%
Black or African
American
24 126 21% 22%
Filipino or Pacific
Islander
2 29 4.3% 0.5%
Hispanic or
Latino
40 167 29% 27.2%
Native American 1 2 0.4% 1.0%
Undeclared/Other 4 21 3.5% --
White 25 163 26.4% 28.6%
Total 104 609 99.9% 95%
3 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 Sept. 8, 2023).(note that the Hispanic category may include other races while other categories are exclusively non-Hispanic).
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C. The Department’s Efforts to Recruit, Retain, and Support Advancement of Female Officers.
While the Department employs sworn female officers at nearly two percentage points higher than the state and national average, the Department seeks to increase its sworn female ranks, generally, as well as increase the representation of women in supervisory and commander roles. A commitment to diversity and inclusion includes focusing on recruitment and retention of underrepresented groups which, in law enforcement, includes women.
In order to increase its recruitment of female officers, the Department has signed up with and is working with a coalition of police leaders, researchers, and professional organizations known as the 30x30 initiative to advance the representation and experiences of women in all ranks of policing. See https://30x30initiative.org/ (last visited Jan. 3, 2024). The goal is to increase the representation of women in police recruit classes to 30 percent (30%) by the year 2030 and to ensure police policies and culture intentionally support the success of qualified women officers throughout their careers.
Currently, the Department is modifying its recruitment materials to make them more geared to female recruits by increasing the representation of women in its recruiting materials and highlighting the benefits of a career in law enforcement that tend to attract women—emphasizing the opportunities for personal growth, professional development, and the positive impact officers can make in our community. In addition, the Department is developing a minimum of five recruitment videos depicting individual female officers narrating their personal experiences serving as an officer in Oakland. The videos will be played on social media and other recruiting sites to showcase a day in the life of a female Oakland police officer.
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physical fitness training sessions to help interested female candidates better understand the job requirements of a police officer and develop the necessary skills. See OPD Biannual Staffing Report (Nov. 29, 2023), supra at 18-21. Providing resources and support particularly designed for women helps build confidence and trust and increase the likelihood of success for female applicants.
As a result of the Department’s efforts, five of the 22 officer trainees who entered the 193rd Academy were female, constituting 23% of the total entering class.
VI. OFFICERS USE REASONABLE FORCE AND DEPARTMENT FORCE REVIEW IS DEPENDABLE (TASKS 24, 25 & 30)
The Department has continued to sustain competent internal review, oversight, and improvement of force and force reporting. 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 Sixth NSA Sustainability Period Report, supra at 11.
The Department has, for more than a year now, conducted its own internal command oversight and assessment of force and force investigations using a process patterned after the Monitor’s review process. A Deputy Chief leads a rotating group of commanding officers in reviewing use of force reports. The reviewing group addresses concerns it identifies with supervisory notes files (SNFs), Department- wide and line-up training, and where appropriate the initiation of internal affairs investigations. Id. The command review group also identifies ongoing positive trends—including improved planning and communications, more detailed force reports, more positive communications with the public, improved de-escalation techniques, and sergeants and officers’ chain-of-command identifying and addressing deficiencies. Id.
During the quarterly Monitor site visit in November 2023, the deputy chief leading the command review team presented the Department’s assessment of Level Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 41 of 59 1 2
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3 and Level 4 use of force reports completed between July and August 2023. Id. The Department reviewed and reported out not only on the 30 use of force reports reviewed by the Monitor but on additional force reports. Id. at 10-11. The Department identified and addressed all but one of the Monitor’s comments and concerns. Id. at 11. The Department also identified and addressed some additional concerns that the Monitor did not identify. Id.
In its most recent report, the Monitor recognized the following additional accomplishments:
• During the sustainability period, the Department has maintained an aggregate reduction in the percentage of force incidents involving African Americans in cases reviewed by the Monitor. The percentage fell from 76% in the Monitor’s April 2022 report to 52% in the Monitor’s most recent report. Compare Eighty-First Report of the Independent Monitor, supra at 11 with Sixth NSA Sustainability Period Report, supra at 10;
• Throughout all six sustainability periods, supervisors have generally identified deficiencies in officer reporting and identified and addressed Manual of Rules (MOR) violations (id. at 15);
• The Department’s force oversight and review command team identified and properly addressed concerns prior to the Monitor identifying concerns (id.);
• In the three Level 1 force reports prepared following Executive Force Review Boards (EFRBs) (Task 30), the Boards addressed all concerns with field reporting (id. at 10);
• Deliberations were satisfactory in all three EFRBs that occurred during the reporting period (id. at 18);
• There were “few instances” where officers failed to identify themselves as police officers or used unprofessional language while dealing with a member of the public (id. at 15);
• There were no patterns of officers using boilerplate or pat language or omitting specific information or details to justify their use of force, though there were two isolated reports where some pat language was used which were addressed by the Department (id.);
• Area Captains identified and appropriately addressed concerns with use of force reporting and documentation in their monthly audits of Type 32 uses of force (id. at 11);
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• Officer and supervisors are reporting, reviewing, and documenting their review of Type 32 uses of force with “continued consistency.” Id. at 10; and
• Supervisors identified and properly addressed all late body-worn camera activations (Sixth NSA Sustainability Period Report, supra at 10).
A. The Department’s Office of Internal Accountability (OIA) Recently Completed Two Audits Involving Force Reporting.
The OIA’s recent audit findings are consistent with the Monitor’s assessments of Type 32 reporting compliance. See Oakland Police Department’s Office of Internal Accountability, Use of Force Daily Logs and Vision Reconciliation & Type 32 Review (Nov. 29, 2023), https://cao-94612.s3.us-west-
2.amazonaws.com/documents/FINAL-Type-32-Review-29Nov23.pdf (last visited Jan. 3, 2024). Type 32 force is the lowest reportable force type. It is essentially a catch-all category used to capture force to overcome the resistance of a person during an arrest or detention, or force used to defend oneself or another person from a combative person, and not categorized as any other particular type of force. The OIA reviewed documentation of Type 32 uses of force during the first seven months after implementation of Special Order 9208, Documentation of the Use of Force.
The purpose of the inspection was to assess Department compliance with the updated reporting and review requirements, to assess general levels of supervision for this force type, and to analyze the newly collected Type 32 use of force data in Vision. The focus of this audit was on Type 32 incidents where no other force was used. The OIA assessed policy compliance by officers involved in the Type 32 use of force incidents, as well as their respective supervisors and commanders; the supervisors’ review of the involved officers’ body-worn camera videos, when applicable; and trends across incidents involving Type 32 force.
To conduct the audit, the OIA reviewed crime reports, use of force reports, body-worn camera footage, and data collected in the Department’s Vision use-of- force module related to Type 32 force. The audit concluded that nearly 100% of Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 43 of 59 1 2
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officers, sergeants, and lieutenants complied with the updated Type 32 reporting and review requirements. There was only one police officer out of 77 who did not properly report a Type 32 use of force in an incident, and this lack of documentation was referred to the officer’s chain of command for further handling.
The OIA also conducted an inspection in the wake of the ransomware attack to ensure that all reported uses of force documented on the Use of Force Daily Logs from February 1, 2023, through April 30, 2023—the period impacted by the cyber- attack—were entered into Vision. The inspection concluded that all uses of force were entered into Vision.
B. The City Completed its Revision of Body-Worn Camera Policy.
On December 19, 2023, the Department implemented a revised body-worn camera policy, DGO I-15, Body-Worn Camera Program. The Department and the Police Commission worked together on the policy revision. The revised policy was published in November 2023 but became effective in mid-December following training on the new policy provisions. In conjunction with the Department’s upgraded body-worn camera system, the revised policy is critical to the Department’s ability to sustain its consistently rigorous force and force reporting reviews.
Based on the foregoing, the Department remains confident in its ability to sustain its demonstrated proficiency in force review.
VII. THE CITY CONTINUES TO COMPLETE ADDITIONAL WORK TO
SUPPORT LONG-TERM SUBSTANTIAL COMPLIANCE
A. The Department’s Examination of its Use of “Unfounded” Findings in Internal Investigations.
The Department recently completed a months-long thorough examination of internal investigations in “unfounded” allegations to determine whether the Department is consistent in its categorization of internal investigation findings.
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versus “exonerated” findings. If a misconduct allegation against an officer is “exonerated,” this means that the alleged conduct occurred but the conduct was permitted by law and policy and thus was not misconduct. In contrast, an “unfounded” finding means that a preponderance of evidence showed that the alleged conduct did not occur. The Department’s concern about this issue arose in part from its understanding that complainants making allegations that are ultimately “unfounded” may perceive such a finding as a conclusion that the complainant is not truthful or otherwise invalidating the complainant’s experience.
The Department’s Office of Internal Accountability worked closely with a Stanford University researcher to analyze a sampling of 200 of the 504 total “unfounded” allegations in 79 internal investigations closed between June 2022 to May 2023.
As a result of the examination, the Department took certain actions to improve consistent application of “unfounded” and “exonerated” findings. Ex. 3, Review of Unfounded, Department Response (Nov. 2023). First, the Department amended the template for its “close-out letter,” the letter that it sends to a complainant when an internal investigation is completed. The close-out letter is typically the Department’s only method of sharing information about an otherwise non-public internal investigation with a complainant. When allegations are determined to be “unfounded,” and the letter communicates that finding, a complainant may be left with the impression that the Department found the complainant untruthful, not credible, or otherwise did not believe the complainant.
The Department therefore amended the template letter to acknowledge the voice and perspective of the complainant and add some additional detail about what investigation findings mean. These changes should reduce the potential for complainants to feel distress based on a misapprehension of the findings in an investigation. See id. (updated with revised Att. A).
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consistent application of “unfounded” versus “exonerated” findings. See id. (updated with revised Att. B). Third, the Department developed a training module for all supervisors and IAD personnel regarding the nuances of approaching and structuring conduct assessments. Id. Finally, the Department now annually assesses the rate of “unfounded” findings and inspects a sample of cases with “unfounded” allegations to assess the consistency of the use of this category of finding. Id.
While the Department’s examination of the use of “unfounded” findings is not directly tied to Task 5 or 45, the City anticipates that the changes to Department- wide training as a result of the Department’s completion of this project will result in greater integrity in the Department’s internal investigations processes generally, including greater consistency in case outcomes.
B. The City’s Office of Inspector General and Police Commission Prioritize Audits to Ensure Continued Compliance with All Tasks Involving the Department’s Internal Affairs Division and Racial Disparity in Policing.
The City’s civilian oversight bodies, the OIG, Police Commission, and CPRA, continue to contribute to and support NSA compliance and long-term sustainability.
The OIG announced that priorities for 2024 include an audit of Task 34, Vehicle Stops, Field Investigations, and Detentions; review of Department General Order M-19 – Prohibitions Regarding Racial Profiling and Other Bias-Based Policing; and inspecting IAD-Related tasks that the Monitor no longer actively reviews (Task 3, IAD Integrity Tests; Task 4, Complaint Control System for IAD; Task 7, Methods for Receiving Complaints; Task 8, Classification of Complaints; Task 9, Contact of Complainants; Task 11, Summary of Complaints Provided to OPD Personnel; and Task 13, Documentation of Pitchess Responses). See Ex. 4, OIG Annual Audit Work Plan, Fiscal Year 2024 3-4 (Dec. 11, 2023).
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internal investigations cases, including investigations completed in or about January 2023 by the outside investigator. See id. at 5.
Between Spring and Fall 2023, the Police Commission’s diligence was the critical component that allowed the City to finalize several new or revised Department policies to eliminate deficiencies in internal investigations processes, strengthen the integrity of the Department’s investigations, and improve discipline fairness. Beginning in June 2023, the Commission’s ad hoc advisory committee on NSA compliance has been developing recommendations to the Commission to support the Department in its compliance with Tasks 5 and 45 and impact cultural deficiencies, particularly to the extent such deficiencies directly impact or support issues related to Tasks 5 and 45. The Commission’s work is discussed further in the Commission’s statement below.
The CPRA independently investigates allegations of serious police misconduct. For such cases, the CPRA Executive Director is an equal to the Chief in determining allegation findings and discipline. The Department’s culture has undeniably shifted since the imposition of the NSA in 2003. The CPRA and the City’s oversight structure in general gives community members and complainants a place to voice concerns both within and outside of specific internal investigations.
The City’s civilian oversight is responsible for at least some of the cultural shift that has occurred within the Department. Its functions are set forth within the City’s legislative design to institutionalize police accountability. As the City’s civilian bodies oversee and collaborate with the Department, more and more we see the Department’s policies and practices imbued with the community’s values. In turn, the Department’s culture continues to shift, demonstrating that it, too, embraces these values.
CONCLUSION
The City suffered a devastating loss at the end of 2023. On December 29, Oakland Police Officer Tuan Le was shot and killed the line of duty while protecting Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 47 of 59 1 2
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the residents of Oakland. Officer Le graduated from the Department’s 183rd Academy in February 2020. For the past two years, he served as the Community Resource Officer in West Oakland, where he devoted himself to strengthening the bond between law enforcement and community residents. Just a few weeks before he was killed, the Department awarded Officer Le the Grubensky Medal for helping save the life of a fellow officer who had suffered a heart attack. The award bears the name of Officer John William Grubensky who died rescuing a family in the 1991 Oakland hills fire. Prior to joining the Department, Officer Le served as a security guard at the Ronald V. Dellums Federal Building in Oakland.
Officer Le’s tireless efforts fostering positive relationships will have lasting impact. He will be remembered for his kindness, his smile, and the positive change he brought to the lives of everyone around him. Officer Le is a true hero who sacrificed his life protecting our community. Officer’s Le’s death serves as a tragic reminder that police officers put their lives on the line every day. The City appreciates the courageous individuals who have answered the vital calling to serve the public as peace officers.
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THE OAKLAND POLICE COMMISSION’S STATEMENT
Real and enduring culture change in the Oakland Police Department (herein “OPD”) can only be achieved through the help of independent and robust civilian oversight by the Oakland Police Commission (herein “the Commission”), the Community Police Review Agency (herein “CPRA”), and the Office of the Inspector General (herein “OIG”).
I. OPD Demonstrated a Cultural Inability to Police Itself.
There is a gap between public trust and OPD. This gap exists because of a police culture that does not center community, transparency, and accountability. It also exists because the oft-touted minimum standard of “constitutional policing” is insufficient to instill community trust and create the conditions for culture change.
During the 2023 Case Management Conference, the Court pointed to “a cultural inability of OPD to police itself” and a “culture that plays favorites and protects wrongdoers that undercuts the foundations of constitutional policing.” (Delphine Allen v. the City of Oakland, Docket No. 1587, Hearing Transcript, 6:1-4 April 11, 2023). The Court posed the key question underlying the City’s ongoing struggle not just with NSA compliance but more generally with community trust in policing: what needs to happen to create real and enduring culture change in the Oakland Police Department (OPD)? We believe that the City of Oakland and its residents can overcome this obstacle to true culture change in policing through civilian oversight.
II. Civilian Oversight Enforces Police Accountability and Drives Culture Change.
The issue of the police not being able to police themselves is not singular to OPD. Instead, this problem is one being grappled with throughout our country. For the culture of policing to transform permanently, there must be powerful civilian oversight that creates community centered policies, conducts regular and consistent auditing, conducts independent investigations, and has City-wide commitment and Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 49 of 59 1 2
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investment. The consistent, informed, and diverse voice of the community, amplified through these civilian oversight entities, ensure the continued commitment to and prioritization of police accountability and community safety. In Oakland, that civilian oversight is being handled by the Commission, the CPRA, and the OIG.
When the Negotiated Settlement Agreement (NSA) ends, the Commission, the CPRA, and the OIG will take up the mantle of police accountability.
This is not a novel idea. Civilian oversight is being embraced across the country by court monitors. U.S. District Court Judge Gary Allen Feess granted primary oversight responsibilities of the Los Angeles Police Department to the Los Angeles Police Commission and the Office of Inspector General after phasing out the consent decree and oversight of the court monitor. The U.S. Department of Justice recently agreed to transition oversight of the Seattle Police Department from the court monitor to the Office of the Inspector General while calling on the court monitor to assess the Community Police Commission’s capacity to provide accountability. When the federal government’s consent decree with the Detroit Police Department terminated, U.S. District Court Judge Avery Cohen noted the importance of the eleven-member Detroit Board of Police Commissioners and that it should continue as a civilian oversight board dealing with complaints. These transitions underscore the importance of civilian oversight in police accountability.
Civilian oversight also drives culture change further than audits and investigations can. Community voice empowered, through civilian oversight informs police departments of the harms their actions may cause even if those actions comply with written policy. This will inform police departments about the impact of their actions causing departments to reflect on whether those actions are in the best interest of the community and whether relevant policies should be created, changed, or removed to lessen the impact on the community, while still fulfilling their responsibility to protect and serve. Through this feedback loop, civilian oversight can change the culture of the police department to be in line with the values of the Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 50 of 59 1 2
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community served. Community voice can be the moral compass the department needs for culture change.
Oakland’s residents and leadership also believe civilian oversight is the way to create and sustain police accountability. In 2016 and 2020, Oakland residents voted to establish the Commission, the CPRA, and an independent OIG. In April 2023, Interim Chief of Police Darren Allison acknowledged to the Court that transitioning to community oversight was the future of police accountability in Oakland. Also in April 2023, Mayor Sheng Thao told the Court that “the ultimate goal … is ensuring that the Department is part of the community and that it is truly sharing the community’s values,” and that the start of that process is “a police department that is overseen by the community with policies that reflect community values.” Civilian oversight is the future of police accountability in Oakland.
III. Effective Civilian Oversight Must be Centered, Resourced, and Collaborative.
Civilian oversight is an essential and difficult charge. However, it is widely understood by cities across the country as the answer to permanent culture change and police accountability. Such an important and difficult charge can only be met by centering civilian oversight in police accountability. This requires civilian oversight that is truly integrated into the City, funded at appropriate levels, relied upon to develop policy driven by community needs and concerns, and empowered to audit, investigate, and develop data and experienced based knowledge and expertise to drive permanent culture change and define police accountability. With well supported oversight entities, OPD will not be able to operate in the shadows and officers will have no other option but to fully accept community-centered policing with its emphasis on transparency and accountability in achieving public safety.
Civilian oversight in Oakland will only work if there is true collaboration among the departments, city leaders, and the federal monitoring team. It is important not to exclude civilian oversight entities from the work which we are Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 51 of 59 1 2
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charged by the community, the City Charter, and municipal code to carry out. The City and the Independent Monitoring Team (IMT) can make civilian oversight successful by embracing the Commission, OIG, and CPRA as part of the leadership and recognize the specific role and expertise each entity brings to the table. As long as police perspective continues to dominate in key discussions regarding police oversight, we will not see a true shift in policing in Oakland. An example of this persistent culture is reflected in the IMT’s most recent report, which states: OPD “must strive to address cultural issues which, when unaddressed, perpetuate actual or perceived disparities. We see this as an effort in progress and will continue to work with both the department and the Plaintiffs’ attorneys, to bring this task into compliance.” (6th NSA Sustainability Report of the Independent Monitor for the Oakland Police Department, December 15, 2023 at 17.) The Commission, CPRA, and OIG are not regularly and meaningfully brought into conversations internally regarding this work prior to engagement with outside stakeholders. This fact, in tandem with IMT’s focus on working with the Department, effectively prohibits the perspective and expertise of the City's civilian oversight structure in addressing these issues.
The City has made some progress investing in effective civilian oversight in its recent budget cycle. This budgetary investment in CPRA and OIG has allowed each entity to begin its work in earnest. The City’s commitment to civilian oversight must continue to grow, meaning both the centering of civilian oversight and the dedication of resources must continue in earnest. The dedication of appropriate resources can be furthered by using resources currently applied to NSA monitoring.
Currently, court oversight is costing the city approximately $1 million per year to the court monitoring teams as well as untold time and resources of police officers expended on litigation processes. The financial resources going to monitoring effectors could be applied directly to enhance civilian oversight. The result will be more support for helping the police department stay in compliance and not Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 52 of 59 1 2
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relapse once court oversight ends.
IV. The Oakland Police Commission, the Community Police Review Agency, and the Office of Inspector General are up to the Task of Civilian Oversight.
A. Oakland Police Commission: A Policy and Civilian Oversight Body that Enhances Accountability to Precipitate a Change in Culture Community voice is essential to police accountability and effective public safety. As a civilian oversight entity, the Commission has a primary role in facilitating and ensuring the reflection of best practices and community voice in our policing standards. By design, the Commission is comprised of nine community members that broadly represent Oakland’s diversity and includes knowledge and experience in various fields relevant to policing. It is empowered by the City Charter to drive changes in policy regarding NSA tasks and to hold public hearings on OPD’s policies, rules, practices, customs, General Orders, and budget.
The Commission has an active NSA compliance Ad Hoc committee, which broadens commissioner and public participation in NSA compliance. The ad hoc was established to focus on Tasks 5 and 45, its continued purpose is to monitor all the NSA tasks, while examining other systematic cultural issues.
B. Community Police Review Agency: Culture change driven and supported by CPRA’s independent, civilian investigations The Commission oversees the CPRA, a civilian run, community-centered enforcement body. It is comprised of expert investigators with knowledge regarding policing and the ability to independently drive outcomes in investigations of OPD misconduct.1 Importantly, CPRA’s central role in sustaining and furthering police accountability does not stop at holding individual officers to account, but also supervisors and commanders, thus avoiding the pitfalls revealed by the Clarence Dyer & Cohen reports and investigators. It is also transparently highlighting its investigative process, presenting the results of investigations to the community, and conducting regular outreach to receive feedback, ensuring that investigations, policy, and data are presented in a truly accessible, community-driven format.
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50 JOINT CASE MANAGEMENT STATEMENT Case No. 00-cv-4599 WHO
The City demonstrated a commitment to CPRA by doubling its budget for fiscal year 2023 – 2025. This will allow approximately 16 new positions to be added in preparation of a transition of responsibilities from OPD’s internal affairs unit to CPRA. As CPRA grows, it will be primed to take over cases beyond just public complaints. With an expanded staff, CPRA will be even better positioned to ensure accountability on a case-by-case basis, carefully scrutinize each case, bring an unbiased perspective to training and policy, conduct investigations in a timely fashion, identify patterns of misconduct, and coordinate with the Commission for policy change, OIG, OPD, City leadership, and community stakeholders.
CPRA’s work provides a unique and untapped viewpoint into the cultural challenges the court sought to identify. Over the course of an investigation, various CPRA employees and the Commission also gain insight into OPD culture. An investigator, who watches thousands of hours of uncut body-worn camera footage, gains insight into the culture of officers on the streets of Oakland. A supervisor who coordinates case management gains insight into the culture within IAD. CPRA’s Executive Director meets with Police Department leadership to adjudicate discipline, gains insight into OPD’s internal deliberations on each case, and is well- positioned to recommend improvements to OPD and the Commission where necessary.
Through the investigative process, in addition to holding officers accountable, CPRA can assess the effectiveness of OPD’s policies and training, and illuminate deficiencies and push forward effective resolutions. The investigative process serves more than its central function of ensuring individual officer accountability. It provides a more transparent, community-centered path to best practices, grounded in fact, with each investigation providing data points and highlighting opportunities for growth. A growing CPRA will expand the City’s ability to capture data that reflects a picture of the state of policing and what is needed to make improvements.
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If appropriately resourced, CPRA can greatly enrich data collection and analysis, such as geocoding incidents, documenting misconduct incidents by type, capturing demographic information, and painting an overall clearer picture of how, when, and where misconduct occurs. Robust data collection will allow civilian oversight to assist in early intervention, identify clusters of alleged misconduct, and diagnose potential problems therein. Transparency is fundamental to accountability, and because of its independence CPRA can provide critical data, information and feedback about the state of policing and the internal culture to stakeholders and the public, unfiltered through the police lens.
C. The Office of the Inspector General: Sustaining and furthering big- picture and granular change through OIG’s audit authority Overseen by the Commission, OIG plays a crucial role in the structure of the City’s civilian oversight. In alignment with Oakland City Charter Section 604(f)(5), OIG is already working diligently to “…audit the Department’s compliance with the fifty-two (52) tasks described in the Settlement Agreement in United States District Court Case number C00-4599, Delphine Allen, et al., v. City of Oakland, et al., and make recommendations to the Department, the Commission and City Council based on its audit(s)…” As an independent civilian oversight agency, OIG audits and assesses OPD’s policies, procedures, and practices, develops data from this work, enabling the Commission and the public to evaluate compliance with the law, OPD policies, community expectations, and best practices in transparency. As the auditing arm of Oakland’s civilian oversight structure, the OIG will continue to provide the Police Commission, City Council, and other action holders, with clear recommendations to advance/maintain OPD’s compliance with departmental policies and the law “… even after the Settlement Agreement expires.” Ensuring OIG is well-resourced will strengthen the City’s ability to decrease instances of police misconduct. Since its inception in 2022, the OIG grew from an office of just the Inspector General, the sole staff member for six months, to a team Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 55 of 59 1 2
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52 JOINT CASE MANAGEMENT STATEMENT Case No. 00-cv-4599 WHO
of six. The six staff members are comprised of subject matter experts from across many disciplines, that include police performance auditing, police misconduct investigations, community engagement, and policy and data analytics. The OIG and the City Administration will continue to work together to evaluate the resources necessary for the office to continue effective oversight of OPD. With their evolving staff, depth of expertise, and expanding resources, the OIG completed several reports and provided multiple recommendations, that include compliance evaluation of the Department’s Field Training Program, policy recommendations and input, an annual report and an engagement strategy (Ex. 4). These items are publicly available on the OIG website. See
https://www.oaklandca.gov/departments/inspector-general.
Utilizing the qualitative data collected through implementation of their communication and engagement strategy, and a corresponding survey, OIG recently released its Annual Audit Work Plan for Fiscal Year 2024. Ex. 4. This community- informed plan includes proactive projects such as the OPD Staffing Study and Resource Analysis, a review of IAD cases, and comprehensive analyses of Departmental General Orders to name a few.
To carry out this work effectively and efficiently, OIG will sustain and expand its stakeholder engagement, data gathering, and disclosure strategies within the fiscal year. Through comprehensive and easily accessible work products, OIG seeks not only to provide action holders with the best tools to make informed decisions; but also, to be of optimal service to the entire Oakland community, while remaining transparent.
V. Conclusion
Civilian oversight is poised to play a central role as part of City leadership and in the day-to-day work of police transparency and accountability. It will ensure sustained improvements in hiring that reflects the diversity of the community, the highest standards in training, policy and practice, and consistently and fairly Case 3:00-cv-04599-WHO Document 1622 Filed 01/19/24 Page 56 of 59 1 2
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holding officers accountable to those standards. At its essence, civilian oversight role will ensure real and sustained cultural change.
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THE OPOA’S STATEMENT
While the Intervenor Oakland Police Officers Association (“OPOA”) is not privy to all of the internal discussions and collective efforts of the Independent Monitoring Team (“IMT”), City of Oakland (“City”), Plaintiff’s counsel or the Oakland Police Department (“OPD”), the Association has a collective sense that full compliance with the Negotiated Settlement Agreement (“NSA”) is near at hand.
Since the last Case Management Conference, the OPOA has been presented with various proposals concerning modifications to Department policies related to the NSA. Specifically, several revised policies emanating from the recommendations set forth in the Report of Investigation for the Oakland Police Department report issued by Clarence Dyer and Cohen dated December 18, 2022. While some of the recommendations did not result in actions prompting the meet and confer process, those that did were the subject of accelerated good faith efforts and resulted in policies advancing the goals of the NSA and interests of all involved parties.
The Court should be aware that on January 3rd the Board of Directors of OPOA held its annual election of officers and previous president, Barry Donelan had chosen not to run for a position on the OPOA Board and Sergeant Huy Nguyen was elected president. Sergeant Nguyen is a veteran of the Oakland Police Department and has been with the Department for 24 years. Additionally, Sergeant Nguyen has been on the OPOA Board of Directors for 10 years and is acutely aware of the importance of OPD reaching full compliance with the NSA.
The OPOA remains committed to work collaboratively with all parties to reach full compliance with the NSA.
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Respectfully submitted,
Dated: January 19, 2024 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 1622 Filed 01/19/24 Page 59 of 59
EXHIBIT 1
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 1 of 40
1 Oakland Police Department
Office of Internal Accountability
______________________________________________________________________________
2022 Analyses of Race in Internal
Investigation Outcomes and Discipline:
Supplemental Report Examining Failure to
Accept or Refer Complaints
Oakland Police Department
Office of Internal Accountability
455 7th Street, 9th Floor | Oakland, CA 94607 | Phone: (510) 238-3868
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 2 of 40
2 ____________________________________________________________________________ Contents
Ctrl+ Click Chapter Title to Follow Link
I. Background ......................................................................................................................... 3 II. Summary of Findings and Recommendations .................................................................... 4 Finding 1 .............................................................................................................................. 4 Recommendation 1 ............................................................................................................. 4 Finding 2 .............................................................................................................................. 4 Recommendation 2 ............................................................................................................. 4 Finding 3 .............................................................................................................................. 4 Recommendation 3 ............................................................................................................. 5 Finding 4 .............................................................................................................................. 5 Recommendation 4 ............................................................................................................. 5 Finding 5 .............................................................................................................................. 5 Recommendation 5 ............................................................................................................. 5 III. Overview of Sustained 2022 FTARC Allegations ................................................................. 6 IV. Themes for Findings ............................................................................................................ 7 IV.1 Externally Generated ................................................................................................. 10 IV.2 When Other Parties Recommend Different Findings ................................................ 11 IV.3 Case Review for Different Recommendations with Theme “Did not Ask Both Clarifying Questions” ........................................................................................................ 12 IV.4 Case Reviews of Different Recommendations Confirm Subjectivity ......................... 13 V. Sergeants and their Role in Investigations ....................................................................... 14 V.1 Rank as a Factor .......................................................................................................... 14 V.2 By Origin of Allegation ................................................................................................ 14 V.3 By Investigator ............................................................................................................ 19 V.4 Sergeant A ................................................................................................................... 21 VI. Division Level Investigations (DLI) v Internal Affairs Division Investigations (IAD) ........... 26 VII. Discipline by Race ............................................................................................................. 29 VII.1 Who is Recommending Discipline?........................................................................... 29 VII.2 Elevation / Lowering / Confirming of Recommended Discipline .............................. 30 VIII. Qualitative Analysis of 2022 FTARC Allegations ............................................................... 33 Appendix A .......................................................................................................................................... 37 Chi-Square Calculation for Sustained Rate of FTARC Allegations ..................................... 37 FTARC As Stand-Alone Sustained Allegation .................................................................... 37
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3 I. Background
The 2022 Internal Investigation Outcome and Discipline Report discove red differences, albeit among a small sample size, in the discipline between white and Black officers for the allegation of a Manual of Rules Violation for Failure to Accept or Refer a Complaint (FTARC). This follow up inspection focuses on the internal application of that specific area of identified difference.
From the OPD Manual of Rules (MOR):
398.76 REFUSAL TO ACCEPT OR REFER COMPLAINT – Members and employees shall not refuse to accept a citizen complaint, fail to refer a citizen to the IAD (when the citizen can be reasonably understood to want to make a citizen’s complaint), fail to forward a complaint to the IAD, discourage a person from filing a complaint, and/or knowingly provide false, inaccurate, or incomplete information about the IAD process. Members and employees shall not fail to follow any of the procedures for accepting, referring, or forwarding a complaint.
From the OPD Discipline Matrix:
• 398.76 - Class 1 REFUSAL TO ACCEPT OR REFER A COMPLAINT (INTENTIONAL) Discipline: 1st Offense: S5-T 2nd Offense: T
• 398.76 - Class 2 FAILURE TO ACCEPT OR REFER A COMPLAINT (UNINTENTIONAL) Discipline: 1st Offense: C-S5 2nd Offense: S2-S5 3rd Offense: S5-S30
In 2022 there were 112 allegations of FTARC investigated. 45 of those alleg ations were Sustained. The remainder were other than sustained (Exonerated, Not Sustained, or Unfounded). The 45 Sustained allegations emanated from 19 overall investigations.
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4 II. Summary of Findings and Recommendations
This follow-up inspection of FTARC allegations was an analysis of various aspects of the administrative investigation which may have led to the identified disparity. The mandate was to locate areas of discretion within the Internal Affairs processes for findings and discipline and to suggest solutions for limiting the opportunity for such discretion to result in biased outcomes.
What follows is the OIA’s understanding of various reasons for how the infrastructure around FTARC could have allowed for disparate outcomes, and the offering of recommendations to address the issues within the process.
Findings 1 and 2 address issues of policy and training. Findings 3 and 4 address issues of an individual investigator and of a unit within Internal Affairs having an outsized influence upon the process.
Finding 1
(Section IV) 1
Many determinations of finding for FTARC require, by current policy, an assessment of whether the subject was “unsure” if someone wanted to make a complaint and therefore should have asked “clarifying questions.” This standard assigns the investigator the unenviable task of having to judge the subject’s certainty about a situation at the time it occurred, but through the lens of hindsight. This is an area of opinion and discretionary judgement, which may lead to biased outcomes.
Recommendation 1
Section III.A.7 of Department General Order M-03 (“unsure” and clarifying questions”) should be revisited and addressed in order to limit the opportunity for judgement, discretion and bias to play as central a role as it has done in 2022.
Finding 2
(Section IV, Section V)
Eleven of the nineteen cases resulting in at least one of the 45 FTARC Sustained findings were sustained while relying on subjective argumentation, some of which included language not otherwise standardized via training or policy. Some investigations declared a subject “should have” comported themselves in a particular manner, perhaps not one prescribed by policy, but one which seemed reasonable in the investigator’s estimation.
Recommendation 2
The Department should consider quality control training for commanders reviewing IAD investigations or DLIs to ensure consistent quality, content, and lack of subjective argumentation unless specifically called for.
Finding 3
(Section VI)
There are inconsistent Sustained Rates for FTARC between those investigated as DLIs and those investigated as IAD investigations, a dynamic that is complicated by the role and actions of the DLI Coordinator Unit within the Internal Affairs Division.
1 Follow hyperlink to go straight to relevant section.
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5 Recommendation 3
The Department should consider requiring the DLI Coordinator Unit show their work, documenting recommendations or changes to investigations emanating from the Unit in a transparent manner, whether via chron log or other means.
Finding 4
(Section V.4)
A single Sergeant of Police i nvestigated 49% of all FTARC allegations in the Department in 2022 (55/112). The same sergeant was the most prolific accuser2 of internally generated allegations of FTARC against other employees in 2022.
Recommendation 4
The Department should consider the manner in which allegations of FTARC are added to investigations and explore a checks and balances approach to adding such allegations on any given case to any given subject member.
Finding 5
(Section VII)
Differing recommended findings or recommended discipline by investigators, the chain of command, CPRA, and others are not currently tracked by the Department in an analyzable manner. This area is one wherein discussion, negotiation, and compromise may occur and one wherein judgement by a singular deciding figure (the Chief of Police) often holds as final. It is an important facet of any future analysis of internal affairs matters.
Recommendation 5
The Department should consider tracking differing recommended findings and differing recommended disciplines between investigators, the chain of command, CPRA, and others in an accessible and analyzable manner, perhaps via VISION.
2 Within this report, “accuser” refers to the person who identified FTARC as an allegation against a subject and motivated the adding of said allegation to the list of Manual of Rules violations to be investigated.
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6 III. Overview of Sustained 2022 FTARC Allegations
In 2022, there were 112 allegations for FTARC. Table 1 provides the breakdown by race and compares it to the percentage breakdown of the Department. It also includes the breakdown of sustained allegations.
Compared to their representation in the Department, white sworn members are over-represented in the number of allegations received but under-represented in the number of sustained allegations.
➢ Black sworn members are under -represented in the number of allegations received and over - represented in the sustained allegations.
Breakdown of FTARC Allegations Compared to the Demographics of the Department 2022 % of Members
in the Dept
% Allegations
Received
% Sustained
Allegations
Asian/Filipino 19% 16% (18) 18% (8)
Black 20% 18% (20) 27% (12)
Hispanic 28% 29% (32) 31% (14)
Other/Unknown 3% 4% (4) 12% (1)
White 29% 34% (38) 22% (10)
Total 100% 100% (112) 100% (45)
Since Black sworn members are under -represented in the number of allegations received, and over - represented in the number of sustained allegations, their sustained rat e would be higher than the sustained rate of white sworn members.
Sustained Rate of FTARC Allegations
2022 Sustained Rate
Asian/Filipino 44% (8/18)
Black 60% (12/20)
Hispanic 43% (14/32)
Other/Unknown 25% (1/4)
White 26% (10/38)
Total 40% (45/112)
➢ White sworn members had a sustained rate of 26% while Black sworn members had a sustained rate of 60%, a statistically significant difference.
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7 IV. Themes for Findings
Themes were identified that captured the reason for the sustained finding. Fo r the 45 sustained allegations, 68 reasons for the sustained finding were identified. In some instances, multiple reasons for the sustained allegation were identified. From these 68 reasons, four themes were developed. Note that because some allegations engage with multiple themes, the percentages below need not sum up to 100%.
62% of the sustained allegations involved the asking of clarifying questions. DGO M-03 articulates what members are required to do regarding complaints. If a member is unsure if an individual would like to file a complaint, they shall ask clarifying questions.
Within Department General Order M-03, the following language can be found (emphasis added):
7. If a member or employee is unsure whether a citizen wishes to make a complaint, he/she shall:
a. Not discourage or deter citizens from exercising their right to complain to the Department or the CPRB;
b. Ask clarifying questions, including but not limited to:
1) Would you like to speak to a supervisor?
2) Do you want to make a complaint?
c. Provide the citizen with an OPD Informational Business Card and/or Complaint Form (TF -3208) with his/her name, serial number and CAD Incident Number; d. Enter a CAD notation to the call;
e. Use the Radio Disposition Code of “IBC” (Informational Business Card); and f. Call the Communications Section Supervisor with the date of the referral, incident number and brief description of the incident to be added to the Complaint Referral Log (TF3367) within 24 hours of the referral.
The next most com mon theme (identified in 47% of sustained allegations) involved not notifying or not properly notifying a supervisor the individual wanted to make a complaint.
The third most common theme (33%) was not providing or not following the Information Business Card (IBC) process. DGO M-03 Complaints Against Departmental Personnel states that if an employee receives a complaint, they shall provide the complainant an IBC. They shall additionally enter a CAD notation, use the Radio Disposition Code of “IBC”, and call the Communications Supervisor so the information can be added to the Complaint Referral Log. Additionally, if a member is unsure if a citizen wishes to make a complaint, they are to provide an IBC.
Finally, in four instances, the sworn member did not recognize an allegation of misconduct was being made. Three of the four members were sergeants, and one was an officer.
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8 FTARC Allegation Themes
Theme % of Allegations with this Theme
Sustained
Did not ask clarifying questions. 62%
Did not properly advise the supervisor. 47%
Did not provide or follow the IBC card process. 33%
Did not recognize that a complaint was being made. 9%
Other Than Sustained
Could not prove the subject heard an allegation of misconduct. 51% Subject was not in a position to hear an allegation of misconduct being made.
22%
Subject accepted or referred the complaint in accordance with policy.
15%
No allegation of misconduct was made to, or in front of, the subject.
12%
* Total may be greater than 100% because some allegations had more than one theme identified.
73% of the other than sustained findings involved assessing the officer’s proximity t o the complainant when allegations were made. Individual investigators used different perspectives and evidence to come to findings regarding proximity, but all noted whether it seemed reasonable for any given officer on any given scene to have heard the a llegations and been therefore required to have either asked clarifying questions, or to have summoned a Sergeant to the scene to accept a complaint.
Themes for Sustained by Race
2022 ASIAN BLACK HISPANIC WHITE OTHER Total
Did not ask clarifying
questions.
75% (6) 46% (7) 31% (8) 40% (6) 100% (1) 43% (28)
Did not properly
advise the supervisor.
25% (2) 27% (4) 38% (10) 27% (4) 31% (20)
Did not provide or
follow the IBC card
process.
27% (4) 27% (7) 27% (4) 23% (15)
Did not recognize that
a complaint was
being made.
4% (1) 1% (1) 3% (2)
Total 100% (8) 100% (15) 100%
(26)
100%
(15)
100% (1) 100%
(65)
* Total may not equal 100% because some allegations had more than one theme identified.
➢ The most common theme used to recommend a Sustained finding for Asian, Black, White and Other race groups was “Did not ask clarifying questions.”
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9 Themes for Other Than Sustained Findings By Race
2022 ASIAN BLACK HISPANIC WHITE OTHER Total
Can't prove officer
heard
60% (6) 38% (3) 50% (9) 54% (15) 33% (1) 51% (34)
Did not hear 30% (3)
0% 39% (7) 14% (4) 33% (1) 22% (15)
No misconduct
allegations made
10% (1) 38% (3) 6% (1) 11% (3) 0% 12% (8)
Subject fulfilled their
duty
0% 25% (2) 6% (1) 21% (6) 33% (1) 15% (10)
Total 100.00%
(10)
100% (8) 100%
(18)
100%
(28)
100% (3) 100%
(67)
The theme “cannot prove the officer heard” (and therefore cannot prove the officer was obligated by policy to have taken any action to accept or refer a complaint) is akin to a “Not Sustained’ finding. Thus, it follows that those allegations were likely ap propriately added, as the question remained unresolved even at the end of the investigation.
The theme “did not hear” is akin to an “Exonerated” finding, in that it acknowledges a misconduct allegation may have been made, but that the subject officer did not hear it and was therefore not obligated by policy to have taken any action to accept or refer a complaint.
Within internally generated allegations, if the theme “No allegations of misconduct made” is akin to saying, the complainant made no allegations of misconduct against an officer, so the officer was under no policy obligation to take any action to accept or refer a complaint. Why was FTARC alleged at all?
Similarly, if the officer fulfilled their duty and accepted or referred a complaint, was the FTARC allegation added prematurely, without examining all the evidence first?
The theme “No allegation of misconduct” appeared in 12% of the “other than sustained” cases. The theme “Subject fulfilled their duty” appeared in 15% of the cases. Combined , these two small shares of the themes accounted for 27% of the total.
To investigate these two themes further, we focused on internally generated allegations, ostensibly by members who are familiar with the MOR and the parameters surrounding compliance with said MOR.
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10 Other Than Sustained by Theme and Race (Internally Generated Allegations Only) 2022 ASIAN BLACK HISPANIC OTHER WHITE Grand
Total
Can't prove officer heard 5 3 7 1 13 29
Did not hear 1 7 4 12
No allegations made 1 2 1 2 6
Subject fulfilled their
duty
1 1 1 3 6
Grand Total 7 6 16 2 22 53
12 of the 53 (23%) other than sustained, internally generated, allegations used themes of “No misconduct allegations made” or “Subject fulfilled their duty.”
Yet, 50% (3 of 6) of the other than sustained allegations against Black members relied on themes of “No allegations made” or “Subject fulfilled their duty.” This was the largest rate for those two themes out of any race group, except for Other. (Asian: 1/7, Hispanic: 2/16, Other: ½, White: 5/13)
If the themes “No misconduct allegations made” and “S ubject fulfilled their duty” are indicative of unnecessary allegations against officers, then Black subjects received a higher percentage per capita of such allegations than other races.
IV.1 Externally Generated
One of the early surprises in examining the data was the higher Sustained rate for externally generated allegations versus internally generated. An examination of the 8 Sustained Externally generated allegations revealed they emanated from 4 investigations.
The following themes emerged in reviewing justifications used for sustaining the personnel. The themes were consistent with those identified from the examination of all Sustained findings in 2022. The majority of sustained allegations were Sustained over some failure surrounding the asking of “clarifying questions.”
Themes use for Sustained finding in Externally Generated FTARC Allegations Theme Allegations Cases
Did not ask clarifying questions 6 2
Did not properly advise the supervisor. 1 1
Did not recognize that a complaint was being made. 1 1 Total 8 4
However, this is a specific area of the policy with which a non-employee would not be familiar. Thus, while the allegation was generated externally, the reasons offered for the Sustained finding were based on a reading of policy and processes surrounding said policy, a very internal arena.
➢ There was no instance wherein a complainant specifically alleged that a subject had failed to ask two specific clarifying questions of them, yet that was the dominant theme and the foundation for 75% of the sustained externally generated allegations.
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11 The disconnect between what the public complained about and the Sustained findings of sometimes only the FTARC allegation is further indication of the room for discretion and interpretation in the application of the policy requirements to the MOR and then against the facts of a case.
IV.2 When Other Parties Recommend Different Findings
An investigator’s recommended finding is not the only factor in the final decision -making process. There are other parties and intervenors who may present their own opinion of the allegations for consideration by the Chief of Police. Such intervenors include the Community Police Review Agency (CPRA), the Division Level Investigation (DLI) Coordinators, as well as any link in the reviewing Chain of Command who disagree with an investigator’s recommendation.
There were 19 cases with at least 1 Sustained FTARC finding in 2022, accounting for 45 Sustained FTARC allegations. Different recommendations were offered in 11 (24%) of the 45 total allegations which ended up being Sustained in 2022, addressed within five separate investigations.
2022 Different Recommendations Resulting in Sustained Findings Sustained
Case #
Race of
Subject
Member(s)
Investigator
Recommendation
Alternate
Recommendation by
Alternate
Recommendation
2 1 White Exonerated Second Investigator
(different patrol
supervisor)
Sustained
3 1 Black,
2 White
Unfounded DLI Coordinator Sustained
5 2 Black,
1 Hispanic,
1 Asian,
1 White
Unfounded CPRA Sustained
11 1 Hispanic Unfounded CPRA Sustained
13 1 Black Unfounded DLI Coordinator Sustained
When a different r ecommendation existed, the recommendation therein was always to Sustain. The different recommendation of Sustained was affirmed as the final finding 100% of the time.
➢ The different recommendations were based on a different framing of the analysis of the same facts by the addendum author.
o 40% (2) of the different recommendations emanated from the DLI Coordinators. o 40% (2) of the different recommendations emanated from the CPRA. o 20% (1) of the different recommendations emanated from a secondary investigator.
o Four Black subject members were Sustained as a result of different recommendations, which was 40% of the total Sustained FTARC allegations against Black members in 2022.
o Four White subject members were Sustained as a result of different recommendations, which was 44% of the total Sustained FTARC allegations against White members in 2022.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 12 of 40
12 o Two Hispanic subject members were Sustained as a result of different recommendations, which was 20% of the total Sustained FTARC allegations against Hispanic members in 2022.
o One Asian subject member was Sustained as a result of different recommendations, which was 17% of the total Sustained FTARC allegations against Asian members in 2022. o
Themes from the Different Recommendations fell into at least one, but s ometimes more, of the below categories.
Different Recommendation - Sustained FTARC Themes
2022 Asian Black Hispanic White Grand
Total
Did not ask clarifying questions. 1 1
Did not ask clarifying questions.
Did not log IBC card
1 2 3
Did not notify the Sgt.
Did not follow IBC card policy.
1 1
Did not properly advise the Sgt. 1 1 1 1 4
Did not recognize the comments as a
complaint.
1 1
Sgt should have taken the complaint. 1 1
Grand Total 1 4 2 4 11
➢ The theme “did not ask both clarifying questions” accounted for 50% of the different recommendations for Sustained against Black and White subject members.
IV.3 Case Review for Different Recommendations with Theme “Did not Ask Both Clarifying Questions”
Table 8 Case #3 Review (1 Black subject & 2 White subjects Sustained) The initial investigator was a sergeant assigned to a field duty. In 2017, during a car stop, verbal complaining were made by the complainant about racial motivations for “the police” (not the officers in specific) stopping him regularly. The officers asked if the complainant wanted to speak to a supervisor.
The complainant stated he did not and added that he wasn't trying to give a nyone a hard time, he was just frustrated. The officers provided the complainant their business cards (IBC).
5 years later, during the filing of a separate complaint, the complainant confirmed he had not wanted to in 2017, and still did not want to , file a complaint against the officers for the 2017 conduct. The DLI Coordinator recommended Sustained, citing a section within the policy relevant to circumstances wherein an officer was “unsure” and was therefore required to ask, “clarifying questions,” but made no analysis nor offered any evidence of the officer’s certainty (“sureness”) before recommending Sustained.
Table 15 Case #5 Review (1 Black subject)
A complainant called OPD to file a complaint against officers for conduct. During the phone conversation with a field supervisor who was assigned to accept the complaint, the complainant expressed frustration with the manner in which the supervisor interru pted her. The supervisor accepted the initial complaint against the officers but did not inquire as to whether the complainant wanted to file a complaint against the supervisor themselves. During subsequent review of that recorded phone conversation in the IAD intake phase, the allegation of FTARC was added against the supervisor.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 13 of 40
13 The assigned investigating Sergeant re-contacted the complainant and specifically inquired as to whether the complainant wanted to then file a complaint against the subject supervisor about the nature of the subject’s phone conversation. The complainant affirmed they did. The initial investigator accepted the complaint and conducted the investigation. The investigating sergeant recommended Unfounded.
Left unanswered was whether the complainant had wanted to file a complaint against the supervisor on the phone during the initial phone call, in that moment, while on the phone with the subject supervisor and was otherwise thwarted or denied in doing so.
The addendum was authored by a DLI Coordinator. Language in the addendum seemed to offer a standard not listed in policy or training documents in OPD:
Knowledge that a complainant is upset with a member should reasonably trigger the above two questions which DGO M-3 states shall be asked.
The two questions referred to are the "clarifying questions", which are relevant, per policy, when a member is "unsure" as to whether someone wants to make a complaint. “Upset" is not a standard that's been trained internally or legislated in policy.
The word “reasonably” is indicative of a subjective assessment. The subject was specifically asked about their certainty and stated they were "sure" the complainant didn't want to file a complaint at the time.
In the addendum, the DLI coordinator relied on the fact the complainant later advised the investigating sergeant they did indeed want to file complaint against the subject supervisor. There was no analysis or clarification as to whether the complainant had wanted to file a complaint against the subject in the initial interaction, or only later, once asked about it directly by the investigating sergeant in the subsequent interview.
The DLI coordinator goes further in alleging the investigating sergeant and their chain of command should receive supervisory notes in their personnel file for having come to the "incorrect" conclusion.
IV.4 Case Reviews of Different Recommendations Confirm Subjectivity The review of two cases wherein “clarifying questions” were intrinsic to the Alternate Recommendation revealed areas of discretion and judgement which were subjective. Any judgement as to another person’s “certainty” (whether or not an officer was “unsure” and therefore subject to policy requirements to clarify said uncertainty) is difficult to standardize.
Recommended Sustained findings for Black subjects come from various investigating entities. Different recommendations than those offered by the invest igator prevailed as the final finding from the Chief of Police. Different recommendations accounted for 40% of the Sustained findings against Black members in 2022. The themes used to Sustain said Black members via different recommendations were subjective and open for varying viewpoints and analysis.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 14 of 40
14 V. Sergeants and their Role in Investigations
V.1 Rank as a Factor
Rank is an area of difference between personnel, and one that has previously been identified as a believed source of disparity in findings and discipline, as found in 2022’s Discipline and Internal Procedural Justice Report.3 All of the sustained allegations against personnel in 2022 were investigated by investigators holding the rank of Sergeant. This is consistent with common practice at the Department.
Allegation Findings by Rank and Race
Rank Unfounded Exonerated Not
Sustained Sustained Grand Total
Lieutenant of
Police 0% 0% 100% (1) 0% 100% (1)
White 0% 0% 100% (1) 0% 100% (1)
Sergeant of
Police 47% 6% (1) 18% (3) 29% 100% (17)
Black 0% 17% (1) 17% (1) 67% (4) 100% (6)
Hispanic 50% (1) 0% 0% 50% (1) 100% (2)
White 78% (7) 0% 22% (2) 0% 100% (9)
Police Officer 29% (27) 1% (1) 28% (26) 43% (40) 100% (94) Asian 22% (4) 0% 33% (6) 44% (8) 100% (18)
Black 21% (3) 0% 21% (3) 57% (8) 100% (14)
Hispanic 33% (10) 0% 23% (7) 43% (13) 100% (30)
Other 50% (2) 0% 25% (1) 25% (1) 100% (4)
White 29% (8) 4% (1) 32% (9) 36% (10) 100% (28)
Grand Total
(Allegations) 31% (35) 2% (2) 27% (30) (45) 100% (112)
In 20 22, Officers received the highest percentage ( 84%) of the FTARC allegations in 2022 and were Sustained at the highest rate (43%).
Sergeants received 15% of the FTARC allegations in 2022 and were Sustained 29% of the time.
Lieutenants received <1% of the FTARC allegations in 2022 and were Sustained 0% of the time.
Incorporating race, the Sustained rate for:
• Black Officers was the highest of any officer race group. (57%) • Black Sergeants was the highest of any Sergeant race group. (67%) • White Sergeants was the lowest of any Sergeant race group. (0%)
V.2 By Origin of Allegation
Sergeants serve as the investigator on most IAD and DLI investigations, recommending findings at the conclusion of their investigation. However, the investigating sergeant may or may not be the same one
3 https://cao-94612.s3.amazonaws.com/documents/Dept-Response-and-OIA-Discipline-Equity-and-Internal-Proc- Justice-Report-Sept-2022.pdf
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 15 of 40
15 to have initiated an allegation of FTARC against a subject. Before examining the results of investigations, we will examine the origins of FTARC allegations in 2022.
Externally Generated Allegation: One that emanates directly from a non-OPD employee. For example, a FTARC allegation would be labeled externally generated if a citizen complainant specifically stated an officer had not taken steps to accept or refer a complaint responsive to the citizen’s voiced concern about misconduct on the part of an OPD employee.
Internally Generated Allegation: One that emanates from an OPD employee. A FTARC allegation would be labeled internally generated if an OPD employee identified potential misconduct by another employee in the course of their own duty – for example as a result of investigating another complaint and reviewing the case.
There are three phases of an investigation wherein allegations of any MOR can be added. At each phase, a human is responsible for making such assessments, whether they be the accuser, the receiver, the investigator or the reviewers. There are opportunities for different understandings of how to apply the MOR framework to the facts. Each phase is reliant on the interpretation of the facts of a case and the application of the Manual of Rules to the policy and then the analysis of both to the facts of the case.
1. The Intake Phase
a. Allegation may be added by the complainant. (Externally generated) b. Allegation may be added by the supervisor within any Division who accepted a complaint and authored the initial memorandum (referred to as a Preliminary Inquiry, or “P.I.”). c. Internal Affairs Intake t echnicians and officers may identify and add allegations as they process the P.I. and compile the case file.
d. Internal Affairs Intake Section supervisors or commanders may similarly identify and add allegations during the course of their Intake review.
2. The Investigative Phase
a. An assigned investigator may add the allegation at any time during their investigative process.
3. The Review Phase
a. A reviewing supervisor or commander (to include the DLI Coordinators a Chain of Command up through the Chief of Police when applicable, may add the allegation.)
➢ 89% (100 of the 112) of the 2022 FTARC allegations were generated internally.
Rates of FTARC Findings, Internally Generated vs Externally Generated 2022 Sustained Other Than Sustained
Internally Generated 38% (37/100) 62% (63/100)
Externally Generated 66% (8/12) 34% (4/12)
The low Sustained rate for internally generated allegations was unexpected. Internal accusers of FTARC (OPD members who identify a possible violation) appear to have added the allegation to investigations at an early juncture in the process. A larger number of final other -than-sustained findings implies a lack of evidence was unearthed via subsequent investigation. Thus, the standard for adding an allegation to a subject was lower than the standard to subsequently Sustain the same subject.
➢ Internal allegations of FTARC appear to have been added more liberally than only when the accuser had an affirmative indication the MOR violation had occurred.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 16 of 40
16 An examination of the eight externally generated Sustained allegations revealed they emanated from just four investigations. The following themes emerged in reviewing justifications used for sustaining the personnel.
Theme use for Sustained finding in Externally Generated FTARC Allegations (2022) Theme Allegations Cases
A complainant's demand for Officer names and serial numbers should have triggered further steps be taken to accept or refer a complaint. 4 1
An officer asked if a complainant wanted to speak with their supervisor but did not specifically ask if the complainant wanted to file a complaint.
2 1
Officer did not summon their Sergeant upon specific request from a complainant.
1 1
Complainant alleged generalized racial motivation for actions taken by police officers. The complaint lacked specific, articulable actions taken that were alleged to have been racially motivated. The Sergeant provided an Information Business Card (IBC), but did not open the complaint for further investigation.
1 1
Total 8 4
In 2022, the number of internal accusers per race group was as follows:
Number of Accusers by Race
Race of Accuser Number of Accusers Number of
Personnel4
% Accusers of Total
Personnel
Asian 2 197 1%
Black 1 281 .4%
Hispanic 1 272 .4%
Other 0 35 0%
White 12 259 5%
➢ White Members were the most likely to add allegations of FTARC in 2022.
The following table provides this information per FTARC allegations by race of accuser and race of subject member.
Internally Generated FTARC Allegations by Race of Accuser 2022 Asian Subject Black Subject Hispanic
Subject
Other Subject White Subject Total
4 Total combined sworn and professional staff, as of 31 Dec 22. Any employee may make an allegation of FTARC against another.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 17 of 40
17 Race
of
Accus
er
Sustai
ned
Other
Than
Sustai
ned
Sustai
ned
Other
Than
Sustai
ned
Sustai
ned
Other
Than
Sustai
ned
Sustai
ned
Other
Than
Sustai
ned
Sustai
ned
Other
Than
Sustai
ned
Sustai
ned
Other
Than
Sustai
ned
Asian 1 1 1
2 1 4
Black 1
1 1 1
Hispa
nic
1 1 1 2
1 2 4
Whit
e
7 10 7 6 9 14 1 3 9 21 33 54
Total 8 10 9 8 10 17 1 3 9 25 37 63
Total
as %
44% 56% 53% 47% 37% 63% 25% 75% 26% 74% 37% 63%
White internal accusers accounted for 87 of the 100 internally generated FTARC allegations against all races in 2022.
➢ Black subjects were the only group for whom a majority of internally generated FTARC allegations were sustained (53%).
The following table explores the Sustained Rate per Race of the accuser.
Internally Generated Sustained Rate by Race of Accuser, Count of Allegations Race of Accuser Sustained Other Than
Sustained
Total Sustained
Rate
Asian 1 4 5 20%
Black 1 1 2 50%
Hispanic 2 4 6 33%
White 33 54 87 38%
Total 37 63 100 37%
White accusers accounted for 87% of the internally generated allegations for the year. The White accuser group’s data weighed heavily upon the whole, as reflected in consistency between the 38% Sustained Rate from White accusers and the 37% Total Sustained rate. Between the other accuser race groups rates of Sustained vary widely, which may be attributed to the small sample size within those accuser groups.
➢ Two White IAD Sergeants accounted for the bulk of the internally generated Sustained allegations by white accusers (15/33 (45.45%)).
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 18 of 40
18 Assignment of Internal Accusers
Race of Accuser Assignment of Accuser Number of Allegations Asian IAD 5
Black IAD 2
Hispanic BFO 6
White BFO 17
IAD 56
OCOP 14
Total
100
BFO had 10 separate accusers, accounting for 23 allegations. IAD had 11 separate accusers, accounting for 63 allegations (63%) of the total allegations levied against subjects. The 7 White accusers assigned to IAD accounted for 56% (56/100) of the year’s total internally generated allegations.
Who are the Internal White Accusers?
Identifier Rank Gender Assignment Time
at
OPD
(Yrs.)
Time
in
Rank
(Yrs.)
Total
FTARC
Allegations
Sustained
Rate for
Allegations
Sustained
FTARC
Allegations
against
Black
Subjects
A Sgt M IAD Inv. 23 12 34 29% (10) 1
B Ofc M IAD Intake 25 25 3 100% (3) 1
C Sgt M Patrol 23 9 1 100% (1) 1
D Lt M SOD 15 3 2 100% (2) 0
E Sgt M IAD Inv. 16 7 6 83% (5) 1
F Ofc M IAD Intake 26 26 7 71% (5) 2
G OCOP OCOP OCOP 5 100% (5) 0
H Sgt M Patrol 15 2 2 50% (1) 0
J Sgt F Patrol 23 2 1 50% (1) 1
K Sgt M IAD Inv. 9 1 4 0% (0) 0
L Ofc M IAD Intake 9 9 1 0% (0) 0
M Sg M IAD Inv. 23 7 1 0% (0) 0
The two White officers who levied Sustained FTARC allegations against Black members (B and F) both worked within IAD – Intake during the period and added the allegations during the Intake phase.
The White lieutenant (D) accounted for 2 allegations. The lieutenant added the allegation during the review phase and returned the file for the investigating sergeant to assess.
Only one White female sergeant (J) internally generated an allegation of FTARC which led to a Sustained finding (11%). Eight male sergeants internally generated an allegation of FTARC which led to a Sustained finding (89%).
The average time as an OPD member for the White accusers was 18.81 years. The average time in rank for the White accusers was 9.36 years.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 19 of 40
19 V.3 By Investigator
An allegation of FTARC cannot be resolved via Class II supervisory note in lieu of a finding. The recommendation as to finding offered by the investigator is taken into consideration during the review process and may ultimately be agreed with by the Chief of Police (final decider for finding).
All sergeants in the Department are capable and available to investigate allegations of misconduct. There are 121 Sergeants at the Department.
➢ 25 different sergeants investigated at least one FTARC allegation in 2022.
This section will look at whether there was a racial imbalance between those assigned to investigate FTARC allegations as compared to the body of sergeants as a whole. The assignments for the 25 FTARC investigators and distribution of sergeants throughout the Department was as follows:
Findings by Investigator Assignment and Race
Assignment # of FTARC Investigators in 2022 # of Sergeants Per Division in 2022 Asian Black Hispanic White Total Asian Black Hispanic White Total BFO 3 1 3 8 60%
(15)
6 9 16 37 75%
(68)
IAD 3 4 28%
(7)
6 2 7 17%
(15)
Ceasefire 1 1 8%
(2)
1 1 1 1 4%
(4)
BRM 1 4%
(1)
2 1 1 4%
(4)
Total 24%
(6)
8%
(2)
12%
(3)
56%
(14)
100%
(25)
16%
(15)
14%
(13)
19%
(17)
51%
(46)
100%
(91)
Some sergeants did not investigate FTARC allegations in 2022 and some of them were assigned to other Bureaus or Divisions that are therefore not represented in the above table , including Bureau of Investigations and Bureau of Services. The Sergeants who in vestigated FTARC allegations in 2022 came from a pool of 91, representing BFO, IAD, Ceasefire, and BRM5.
15% (2/13) of Black sergeants from these represented divisions investigated an allegation of FTARC. 30% (14/46) of White sergeants from these represented divisions investigated an allegation of FTARC.
Within the four listed Divisions, White sergeants were twice as likely to investigate an allegation of FTARC in 2022 than Black sergeants.
22% (15/68) of BFO sergeants investigated FTARC allegations. 47% of IAD sergeants investigated FTARC allegations. IAD sergeants were twice as likely to investigate an allegation of FTARC in 2022 than BFO sergeants.
5 IAD falls under the Bureau of Risk Management umbrella, but was separated here due to the specific, relevant nature of the Division’s function in investigating IAD cases, as contrasted with other sections of BRM (including the Training Section and the Office of Internal Accountability.) Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 20 of 40
20 Recommended Findings per FTARC Investigator
Inv # Inv.
Race
Assign. Black Subject Non-Black Subject
Sustained Other Than
Sustained
Sustained Other Than
Sustained
1 W BFO 100% (1)
100% (4)
2 W BFO 100% (1)
6 H BFO
50% (2) 50% (2)
7 H BFO 100% (1)
8 A BFO
100% (2)
9 W BFO
100% (1)
10 A BFO
100% (1)
11 B BFO
100% (1)
12 W BFO
100% (1)
100% (3)
18 W BFO
100% (1)
H W BFO
50% (1) 50% (1)
20 H BFO
100% (2)
22 W BFO
100% (3)
23 W BFO 50%(2) 50% (2)
100% (1)
24 A BFO 100% (1)
100% (3)
5 W BRM
100% (1)
16 B CF
100% (1)
100% (2)
21 W CF
100% (2)
3 W IAD
100% (1)
A W IAD 34% (2) 66% (4) 35% (17) 65% (32)
13 A IAD
100% (2)
100% (2)
14 A IAD 100% (1)
100% (2)
15 A IAD
100% (1)
E W IAD
100% (1)
25 W IAD
100% (4)
*Note: The sergeants in the prior table represented by a letter (A, E, H) are the same sergeants represented by the same letter in the prior table entitled “Who Are the White Accusers?”
There were only two Sergeants who recommended Sustained findings for more than one FTARC allegation against a Black Subject member in 2022: Sergeant A and Sergeant 23.
Sergeant 23
Sergeant 23 generated no internal allegations of FTARC. Sergeant 23 was assigned investigations involving five different FTARC allegations.
Sergeant 23 was assigned to investigate two separate FTARC allegations against the same Black subject member. In one instance, Sergeant 23 recommended Sustained. In the other instance, Sergeant 23 recommended other than sustained.
The other than sustained recommendation was overruled by the then Chief of Police and the Black subject member received their second of two Sustained violations for FTARC in the space of one month.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 21 of 40
21 V.4 Sergeant A
The inspection also sought to investigate aberrations within the data which might lead to a person, or particular unit, in the Department contributing to the disparate outcomes. When outliers were identified (such as with Sergeant A), a deeper, qualitative review was conducted.
The review of Sergeant A revealed that a source of deviation within their data was the number of internally generated FTARC allegations he levied and the Sustained Rate outcomes of those cases. While Sergeant A did not appear to be “over-sustaining”6 any particular race group, there was an area7 wherein the question arose whether Sergeant A was “under-sustaining”8 the white race group. To inspect that, we conducted a qualitative review of Sergeant A’s investigative reports.
In examining the relevant cases, among other observations contained later in this section, we also found that just one of Sergeant A’s cases, containing eleven allegations against white members, was responsible for 52% of the sergeant’s findings against White members. The findings for those 11 members were other than sustained.
Had this single case been assigned to a different investigator, Sergeant A’s sustained rate for White members would have been more closely aligned with other races and the sergeant would not necessarily have been an outlier for Sustained Rates. Additionally, exploring the hypothetical further, had Sergeant A not been assigned the single case, would another assigned investigator have identified FTARC as an allegation needing to be added to all the subjects and would they have investigated it in the same manner?
There are a number of moderating and mediating factors which intertwine to affect the body of data that comprised 2022’s FTARC allegation investigations: the assignment of field personnel, which personnel responded to any given scene, what sergeant investigated the case, what member added an allegation of FTARC to the complaint, what evidence was available, the list goes on and on. There is discretion wielded in nearly every phase of the process.
Still, it was striking that one white Sergeant (Sergeant A) accounted for 34 of the 100 internally generated FTARC allegations in 2022, the most internally generated allegations by a single member, by far. Only two of the 34 (6%) FTARC allegations added by Sergeant A were against Black members, one of which was sustained. Sergeant A added the most allegations against White and Hispanic members (71%). No ne of the allegations added by Sergeant A against White members were sustained. Sergeant A has worked in IAD in different capacities over his career, totaling approximately 4 years and 8 months out of 23 years total. (20.36% of his career.)
6 Recommending a higher rate of sustained findings against one particular race group versus another. 7 The area being FTARC allegations internally generated by Sergeant A and investigated by Sergeant A. 8 Recommending a lower rate of sustained findings for one particular race group versus all others.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 22 of 40
22 Sergeant A’s Internally Generated vs Assigned Allegations 2022 Unfounded Exonerated Not
Sustained Sustained Total Sustained
Rate
Asian Generated 1 0 1 4 6 67%
Assigned 0 0 2 3 5 60%
Black Generated 0 0 1 1 2 50%
Assigned 1 0 1 2 4 50%
Hispanic Generated 2 0 4 4 10 40%
Assigned 4 0 0 0 4 0%
Other Generated 1 0 0 1 2 50%
Assigned 1 0 0 0 1 0%
White Generated 3 0 11 0 14 0%
Assigned 2 0 1 4 7 57%
Grand Total 15 0 21 19 55 35%
You’ll recall from the prior section; Sergeant A was the most prolific accuser of FTARC allegations (34). In the table above, you can also see Sergeant A was the most prolific investigator of FTARC allegations across all races (55). Sergeant A recommended a Sustained finding for Black members for FTARC allegations 34% of the time and for other -than-Black members 35% of the time . However, in the above table, having broken apart the other-than-black member group into its components, you’ll note Sergeant A’s Sustained finding rate for White members was 0% when Sergeant A added the allegation, and 57% when the case was assigned to Sergeant A with the allegation already present. Sergeant A levied 14 allegations against White subjects, then found 11 Not Sustained and 3 Unfounded.
For no other race group did Sergeant A generate an allegation of FTARC and then other-than-sustain all of them as he did within the White group. The noticeable gap between Sergeant A’s recommended findings per allegation origin was explored further via case review.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 23 of 40
23 Case Review - Sergeant A’s Other Than Sustained Findings for White Subjects Case # Notes Recommended Findings
1 This case is discussed in a later table, entitled “Sustained Cases with Areas of Concern.” The area of concern would have affected the white subject s ergeant, who was Unfounded, but within the report there was left open an un analyzed concern, emanating from the subject sergeant’s own statement and which may call into question the Unfounded finding. 1 Hispanic Officer: Sustained
1 Black Officer: Sustained
1 Other Officer: Sustained
1 Hispanic Officer: Not Sustained
1 White Sergeant: Unfounded
24 The justification for the Sergeant being Not Sustained cited external factors which could have blocked the Sergeant’s hearing of the request to speak with a Sergeant. By contrast, it seemed the two officers heard the complain ant make an allegation of misconduct but took no further action.
The allegations emanated during a conversation, which had been an easy back and forth between the complainant and officers during the booking process at jail. At the allegation to the officers that they’d “fucked over my rights,” the officers became momentarily silent toward the complainant. In their statements the officers denied recollection of hearing the allegations. There is not a substantive analysis of proximity or external factors that could have obscured the officers’ hearing of the allegation. Instead, the Investigator opined, “This investigation finds that this one comment should not be viewed as an allegation of misconduct by (complainant).” The “one comment” standard does not appear elsewhere in 2022 FTARC cases.
1 White Officer: Not Sustained
1 Hispanic Officer: Not Sustained
1 White Sergeant: Not Sustained
9 No concerns identified. 1 White Sergeant: Not Sustained , 1 Black Sergeant: Not Sustained , 2 Asian Officer: Not
Sustained, 3 Hispanic Officers: Unfounded
2 White Officers: Unfounded , 2 Asian Officers:
Sustained, 3 White Officers: Sustained
11 The Chief overruled the Unfounded finding recommendation for the Hispanic Sergeant with a Sustained.
1 Hispanic Sergeant: Unfounded
1 Hispanic Officer: Sustained
1 Asian Officer: Not Sustained
1 Hispanic Officer: Not Sustained
1 White Sergeant: Not Sustained
1 White Sergeant: Unfounded
1 White Officer: Unfounded
1 White Lieutenant: Not Sustained
7 White Officers: Not Sustained
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 24 of 40
24 All 17 of Sergeant A’s other than sustained recommended findings emanated from just 4 cases, each containing multiple subject officers of varying ranks and racial group membership.
Further, Case #11 accounted for 11 of Sergeant A’s 17 (65%) other than su stained FTARC recommendations against White subjects in 2022. With one case containing so many allegations, and predominantly against White subjects, the weighting of such a case within Sergeant A’s FTARC allegation portfolio was outsized as compared to its weight as a single case. Removing Case #11 from the mix would leave Sergeant A’s sustained rate against White subjects for internally generated FTARC allegations at 0/6 (still 0%) rather than 0/14 (the current 0%).
More impactfully, with Case #11 accou nting for 11 other -than-sustained findings for White members, a hypothetical removal of this case from the set would have fundamentally changed the outcome of apparent disparity for the whole years’ worth of data. The overall Sustained Rate for White subjects was 26% in 2022. The hypothetical offered would have changed the White subject Sustained Rate to 37%, still lower than the 60% Sustained Rate for Black subjects, but an 11% swing from the Table 2 data. The lower numbers involved in a year ’s worth of da ta can lead to one investigation with multiple officers on the scene having an outsized effect upon the whole.
The two cases above (#1 and #24) wherein there seemed to be a question as to the justification for the findings serve as further evidence of th e varied manner in which the assessment of FTARC occurs, sometimes even between cases conducted by the same investigator. Case #24’s Unfounded recommendation for the White sergeant seemed logical and appropriate. The “one comment” argument was an outlier in this review and served to Not Sustain 1 Hispanic and 1 White officer. Hypothetically, if the investigation had found the two officers Sustained, the result would have delivered the following Sustained rate for Sergeant A’s internally generated FTARC allegations:
➢ Hispanic: 50% (5/10), up 10%.
➢ White: 7% (1/14), up 7%.
Due to low numbers in the sample size, one allegation’s hypothetical swing to a Sustained finding results in a 7% and 10% corresponding movement. The percentages reveal areas of concern but should be considered in the context of the small sample size serving as the foundation.
Sergeant A alone investigated 49% of all FTARC allegations in the Department in 2022 (55/112). Removing Sergeant A’s own internally generated allegations, Sergeant A would have investigated 19% (21/112) of the total 2022 FTARC allegations.
To attempt to better understand how such a concentrated impact could have landed with a single investigator, the author inquired with the Internal Affairs Chain of Command. (Sergeant A was assigned to the Internal Affairs Division during 2022.) The Chain of Command responded with the following statement,
(Sergeant A) is a trusted and efficient investigator. His judgement is valued, respected, and well-articulated. He routinely carries a case-load twice the size of other investigators in the Section and is capable of deep analysis while still adhering to timelines for investigations. His additions of (FTARC) allegations during 2022 was a product of being sensitive to the nature of the (FTARC) MOR, noting potential violations of it, and adding it to the case for all potential subject officers prior to Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 25 of 40
25 interviewing subject officers such that questioning about (FTARC) could be done in accordance with Government Code 3300 et. seq.
The dominating number and percentage of all FTARC allegations investigated by Sergeant A may provide us the answer as to why White sergeants investigated FTARC allegations at a higher rate than other races.
Simply put, with 49% of all allegations being investigated by one Sergeant (who is White), cases which might have otherwise been disseminated across other investigators, belonging to different race groups instead remained with Sergeant A.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 26 of 40
26 VI. Division Level Investigations (DLI) v Internal Affairs Division Investigations (IAD)
Investigations into misconduct take two forms within the Department. After being processed through the IAD Intake Section, a case file may either be assigned to a sergeant investigator in the Internal Affairs Investigations Section (referred to as Internal Affairs Investigations), or to a sergeant assigned to another part of the Department (referred to as Division Level Investigations).
Division Level Investigations (DLI) are, as prescribed by policy, contain largely Class II (lower level) offenses.9 Internal Affairs Investigations (IAD) contain largely Class I (higher level) offenses. The packaging and assignment of a case as either a DLI or IAD investigation is the responsibility of the Internal Affairs Division - Intake Section, headed by a Lieutenant of Police, working for the IAD Commander (Captain). The assignment of cases may not always follow the strict delineations of policy, as the Lieutenant in charge of IAD Investigations Section may request some Class I cases be sent out as DLI when the caseload of the IAD Section has become untenable.
Once a case has been designated as a DLI, it is packaged into a case file and distributed via the Bureau of Field Operations – Administrative Section. Two Sergeants are currently assigned to this unit, working to disseminate, track, and retrieve numerous DLI case files as they are funneled back to the chain of command overseeing the subject officer. The Captain(s) and Lieutenant(s) overseeing the subject officer’s chain of command may assign the DLI back to the subject officer’s own Sergeant. If work load or operational concerns intervene, however, then the Captains and Lieutenants may choose to assign the DLI to a different Sergeant to investigate it.
Further, units other than those assigned to the Bureau of Field Operations may be assigned DLI to investigate and review when workloads overwhelm the field personnel. In these instances, the investigating and reviewing chain of command may have no regular supervisory responsibility over the subject officer.
The Internal Affairs Investigations Section sergeants’ only role is to investigate allegations of misconduct. Sergeants assigned to other areas of the Department handle Division Level Investigations in addition to their normal duties. There are 121 sergeants in the Department, 8 of whom are assigned as Internal Affairs Investigators. There are therefore potentially 113 sergeants are available to investigate Division Level Investigations ancillary to their regular assignment.10
In 2022, 25 sergeants investigated at least one allegation of FTARC. 18 of the 25 sergeants investigated said allegations as Division Level Investigations. 7 of the 25 sergeants investigated said allegations as Internal Affairs Investigations.
The following table displays the distribution of 2022 cases investigated as either DLI or IAD and how each type’s findings were distributed.
9 DGO M-03 Complaints Against Departmental Personnel or Procedures, VI. A .: Class I offenses shall be investigated by IAD and Class II offenses shall be investigated or resolved at the division -level unless otherwise directed by the COP, Assistant Chief of Police, Acting Chief of Police, or Deputy Chief of the Bureau of Risk Management. 10 113 being the ceiling, as there are some Sergeants on Administrative or Medical leave, as well as some assigned to the Homicide Section, who are not additionally burdened with DLI assignment. Further, while no personnel other than sergeants investigated FTARC allegations in 2022, any supervisor or commander may assume responsibility as primary investigator.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 27 of 40
27 Type of Investigation and Findings
2022 Sustained Exonerated Not
Sustained
Unfounded Grand Total
Division Level
Investigation
56% (24) 2% (1) 14% (6) 28% (12) 100% (43)
Internal Affairs
Investigation
30% (21) 1% (1) 35% (24) 33% (23) 100% (69)
Grand Total 40% 2% 27% 31% 100%
Relatively few Sergeants, (eight) investigated 62% (69) of the total FTARC allegations, as Internal Affairs Investigations. The findings resultant from Internal Affairs Investigations were evenly distributed across Not Sustained, Sustained, and Unfounded, all in the low to mid 30% range.
By contrast, 18 Sergeants investigated the remaining 38% (43) of FTARC allegations as Division Level Investigations. The findings resultant from Division Level Investigations revealed a wider range between findings, with ~14% Not Sustained, ~28% Unfounded, and ~56% Sustained.
➢ The sustained rate for FTARC allegations investigated as DLIs was higher than those investigated within IAD Investigations.
Most of the difference seems to result from the lower usage of Not Sustained as a finding within DLIs, about a 1/3 of IAD. The larger number of sergeants investigating DLI FTARC allegations indicates the DLI investigating sergeants each worked on fewer FTARC per investigator than those sergeants assigned to IAD. This is consistent with normal practice in BFO wherein commanders are careful to not assign more than two DLI to a field supervisor at any given time. There is no policy prohibition against assigning more, but the added burden of a third DLI would overwhelm the sergeant’s normal operational duties.
The wider range in use of findings may be indicative of the varied chains of command and locations from which DLIs matriculate through the investigative process as opposed to the IAD Investigations’ more contained, controlled, City Attorney accessible, and less extraneously burdened process. IAD Investigators’ only job function is to investigate misconduct allegations. IAD investigators work as part of a small unit with routine interactions with Executive Command and lawyers from the City Attorney’s Office to help inform opinion and finding.
In contrast, DLIs are investigated by a wider swath of sergeants and reviewed by a wider swath of supervisors, all of whom are tasked with participating in the DLI process over and above their primary assignment functions. It is little wonder that whatever ethos informed the IAD Investigations’ findings may not have scaled and represented in the same extent within the array of DLIs, thus accounting for an 80% difference in Sustained rates, and a threefold difference in non-sustained rates.
However, a moderating variable (the DLI Coordinator Unit (1 Acting Lieutenant, White, and 2 Sergeants, 1 White, 1 Asian)) is housed within IAD. The DLI Coordinators are intended to act as quality control for DLI investigations, reviewing content for appropriateness of findings, correcting formatting and grammatical errors, and preparing cases for presentation to the IAD Commander or Chief of Police. The DLI Coordinators may serve as advisors to Investigators, recommending findings or further investigative steps for an investigator to carry out.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 28 of 40
28 ➢ A DLI Coordinator’s work and influence is largely invisible within any given investigative file.
For instance, a final finding may be shown within the DLI Report of Investigation (ROI) as Sustained, but without an accompanying trail to show what the DLI-level Investigator’s initial recommended finding was, and what suggestions were offered, or pressure exerted, to change said finding, if any, by the DLI Coordinator.
The name of the DLI Coordinator shepherding any given case through the DLI investigative process may not appear anywhere in the file. In two instances in 2022, a DLI Coordinator authored an addendum (See Alternate Recommendations section for further) when they disagreed with a finding offered in a DLI investigation. The DLI Coordinators’ addenda only recommended Sustained findings in place of other- than-sustained findings.
Though a small sample, the addenda may be indicative of a different mindset towards using the Sustained finding with regard to FTARC allegations, resulting in the higher Sustained rate in DLI investigations than in IAD Investigations. A deeper look at addenda can be found later in this report.
Re-examining the DLI vs IAD allegations, with race of the subject officer as a factor, resulted in the following table.
DLI v IAD by Finding and Race
➢ The large difference in Sustained rates between races evident in the 2022 data, combined with the invisible nature in which the DLI Coordinator unit appears to operate within any given case file is of concern.
Exonerated Not Sustained Sustained Unfounded Exonerated Not Sustained Sustained Unfounded Division Level Investigation Internal Affairs Investigation ASIAN 0.00% 42.86% 14.29% 42.86% 0.00% 27.27% 63.64% 9.09% BLACK 10.00% 10.00% 80.00% 0.00% 0.00% 30.00% 40.00% 30.00% HISPANIC 0.00% 15.38% 69.23% 15.38% 0.00% 26.32% 26.32% 47.37% WHITE 0.00% 0.00% 46.15% 53.85% 4.00% 48.00% 16.00% 32.00% OTHER 0.00% 25.00% 25.00% 50.00%
0.00%
10.00%
20.00%
30.00%
40.00%
50.00%
60.00%
70.00%
80.00%
90.00%
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 29 of 40
29 VII. Discipline by Race
Having explored aspects of findings, we turn now to discipline disparity within the FTARC allegation.
The Department’s Executive Command has stated to the Court that anonymization protocols instituted in 2022 during IAD Findings and Discipline Meetings were designed to eliminate the opportunity for bias to affect decision -making. The effects of the anonymization were not immediately auditable, as the Department has not initiated quantification of when anonymization protocol w ere strictly adhered to throughout a case presentation, or when it was undercut via BWC review, accidental mentioning of the subject’s identity, or an instance wherein the Chief of Police had already been briefed on the matter.
VII.1 Who is Recommending Discipline?
Within OPD, discipline recommendations emanate from a Captain or Lieutenant, but most often the Captain overseeing the Division within which the Sustained subject currently works. The discipline recommendation occurs after the determination of finding by the Chief, usually at a different meeting on another date. The recommender is provided recent Performance Appraisals, the IAD investigative report, and a pre-discipline report (standardized OPD form) to fill out, ensuring they account for mitigating and aggravating factors when ascertaining appropriate discipline recommendations. The O PD Discipline Matrix provides parameters per MOR violation and per count (1 st Offense, 2 nd Offense etc.) The recommender may hold a discipline conference with direct supervisors of the sustained subject officer to solicit feedback and recommendations.
The Captain presents their recommendation to the Executive Command Team (Deputy Chiefs, Assistant Chief and Chief of Police). T he Community Police Review Agency may also present discipline recommendations at that time.
The Chief of Police determines final discipline. The pre-discipline report, with the final determination of discipline as authorized and signed by the Chief, is included in the IAD file.
Discipline recommendations were offered by 16 different individuals during 2022. There was no Asian or Other race discipline recommender in 2022.
➢ White recommenders accounted for 56% of the discipline recommendations in 2022.
FTARC Number of Discipline Recommendations by Race of Recommender Race of
Recommender # of Discipline Recommendations 2022
Black 11
Hispanic 1
N/A 8
White 25
Grand Total 45
Not Applicable (N/A) was used when no Discipline Recommendation was offered. In these instances, the Chief was asked to ascertain discipline directly. This may occur in instances where the sustained subject has since resigned from the Department and has no direct chain of command. In one case, a Discipline Recommendation form was filled out by a white Lieutenant, but the recommendation was explicitly that there was no recommendation from the Chain of Command.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 30 of 40
30 In 2022, the then-Chief of Police determined final discipline in 44 of the 45 sustained allegations. A Deputy Chief (who was Acting Chief briefly in 2022) determined final discipline in the remaining case.
VII.2 Elevation / Lowering / Confirming of Recommended Discipline Upon receiving recommended discipline, the Chief may elevate the level of discipline, lower it, or confirm the recommendation as final discipline. “N/A” in the below table indicates instances wherein there the Chief ascertained discipline without a discipline recommendation.
Sustained FTARC Allegation Recommended Discipline v Final Discipline and Race Movement from
Recommended to Final
Discipline OTHER ASIAN BLACK HISPANIC WHITE
Grand
Total
Confirmed 1 5 6 7 5 24
Elevated 5 5
Lowered 1 1 4 1 7
N/A 2 3 4 9
Grand Total 1 8 12 14 10 45
➢ The only race group to receive elevated discipline by the Chief from the recommended discipline was Black subjects.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 31 of 40
31 S(#) = Number of Days Suspension
WR = Written Reprimand
C&T = Counseling and Training
2022 Discipline for FTARC Sustained Black Subjects
Case
#
Recommend
ed Discipline
(RD)
RD within
the Matrix?
Elevated
(E)/
Lowered
(L) /
Confirmed
(C)
Final
Discipline
Final
Discipline
within the
Matrix?
CPRA
Parallel
Investig
ation?
Notes
1 S1 Yes C S1 Yes Yes
2 C&T Yes C C&T Yes No
3 C&T No (below) E WR No (still
below)
Yes Subject had 1 prior offense for
same.
2 other officers on same case
received C&T and had no priors
for same.
4 C&T Yes E WR Yes Yes No explanation documented.
5a S5 Yes E S8 Yes Yes Subject had 1 prior offense for same and was sustained for
other MOR violation on this
case.
5b S2 Yes E S3 Yes Yes Subject had 1 prior for same
MOR.
10 WR No (below) E S2 Yes No Subject had 1 prior for same MOR.
13 S2 Yes C S2 Yes No Subject had 1 prior for same
MOR.
14 S2 Yes C S2 Yes No
15 S3 Yes C S3 Yes No
17 WR Yes L C&T Yes No No explanation documented.
18 C&T Yes C C&T Yes No
No discipline recommendations were received for discipline above the matrix range.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 32 of 40
32 Two discipline recommendations were received for discipline below the matrix range. The subject officers in both cases had 1 prior offense for FTARC , which were subject to 2 nd Offense ranges of discipline pursuant to the Department’s progressive discipline practice.
Both below-matrix recommendations were offered by white male commanders (one Lieutenant and one Captain). One below-matrix discipline recommen dation was elevated by the then -Chief to within the matrix for a second offense. The other was elevated, but to a Written Reprimand, still below the matrix for a second offense, but one rung more severe than the two other sustained subjects on the same case, neither of whom had prior offenses for FTARC.
One discipline recommendation was lowered, from within the matrix to still within the matrix. The recommendation was offered by a white male commander (Lieutenant). The discipline was lowered by a Deputy C hief serving in an Acting Chief role during the discipline meeting. The final discipline was consistent with what other officers received for their first offense of FTARC.
➢ There were 5 Sustained allegations receiving elevated discipline from the recommendation. Four of the five (80%) allegations were also investigated by CPRA. There appeared to be correlation between CPRA’s involvement in the discipline recommendation and the final decision for discipline being elevated from the OPD recommendation.
In one of the cases (#4) the sustained subject had no prior offenses yet was elevated from the recommended C&T to WR , which was still within the matri x. The elevation appeared inconsistent with how other discipline was meted out for first offenses for FTAR C. The subject was a Sergeant in this case, which may have weighed more heavily in the decision-making process. For comparison, another Sergeant (Hispanic) was sustained for their first offense of FTARC in 2022 and also received a Written Reprimand from the then Chief.
➢ The common reasons Black subjects recei ved elevated discipline from the recommended discipline was for either:
➢ having a prior offense for the same MOR violation (4/5) or ➢ being a Supervisor (1/5).
However, the mere presence of a first offense in the record cannot retroactively ensure said first offense was equitably processed at the time. The occurrence of a second offense within a Black subject’s IAD record may be further indication of a longer period of discipline disparity evidenced against those individuals, much as current first offenses may one day serve as but the first data point in an individual’s discipline disparity trajectory if the Department does not remain vigilant in pro -actively locating and addressing such issues. A qualitative review follows.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 33 of 40
33 VIII. Qualitative Analysis of 2022 FTARC Allegations As the first offenses for most of the 2022 sustained Black subjects occurred in various years’ past, under different chains of command, with different IAD procedures i n place, it was an imperfect comparison when we attempted to delve into those cases and draw parallels to 2022 case evaluations . Instead, to assess OPD’s current procedures, findings and discipline integrity, the assessors undertook a qualitative analysis of all 112 investigated allegations of FTARC in 2022.
In 2022 there were 112 allegations of FTARC. Of those 112 allegations, 45 of them were found Sustained.
The 45 Sustained allegations emanated from 19 investigations.
The following are notes on the 19 Sustained cases. Wherein opportunity for differing opinions, discretion, or bias was identified, it is noted.
Sustained Cases with Areas of Concern
Sustained
Case #11
Notes Results
1 A 5150 WI detainee made numerous verbal allegations while being detained by Officers. No one relayed the allegations to the sergeant. The detainee was gone from scene by ambulance at the time the sergeant arrived. The sergeant had no cause to follow detainee or indication the detainee made allegations of misconduct. The sergeant had no duty to review UoF video (pursuant to policy at the time), but stated they actually did review snippets and clips and didn't notice any allegations. The allegation against the sergeant was deemed Unfounded for FTARC.
Yet, if the sergeant did review the video as claimed, how did they miss the screaming of allegations by the detainee?
Sustained: 1 Black, 1
Other, 1 Hispanic, 1
Asian Officers
Unfounded: 1 White
Sergeant
Not Sustained: 1
Hispanic Officer
2 This case was reviewed previously in this report. Officers on scene were Sustained, but the sergeant was listed as a witness in the case and culpability was not assessed.
Sustained: 3 Hispanic,
1 White, 1 Black
Officers
Witness Only: 1
White Sergeant
3 This case was reviewed previously in this report. The complainant did not want to file a complaint in 2017, nor in 2022, yet the officers were sustained for asking one but not a secondary clarifying question.
Sustained: 1 Black
and 2 white Officers
4 No area of concern identified.
5 Investigator produced an addendum to their own report, changing allegations for 4 subject officers (1 Black, 1 White, 1 Asian, 1 Hispanic) from Unfounded to Sustained. Officers assumed the on-scene sergeant, who was speaking directly with the complainant, would obtain relevant information for any complaints the complainant may have had. The sergeant received the same allegations the officers received, so their assumption was correct. The sergeant’s failure to open the complaint, armed with the same information the officers had, trickled down to each officer that failed to personally debrief the sergeant with their own personal observations.
Sustained: 1 Hispanic,
1 Asian, 1 Black, 1
White Officers; 1
Black Sergeant
11 These case numbers are not reflective of the actual identifying IAD case file numbers but are used only for differentiation within this report.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 34 of 40
34 The addendum referred to the changes in findings as “it was decided,” implying something less than agreement by the investigator.
The CPRA’s Sustained recommendation hinges on a reading of a portion of DGO M-03 which states officers shall “notify and provide his/her supervisor with all information obtained from the complainant as soon as practical.” The same CPRA investigation applied this standard differently to other subjects in the same case, exonerating two officers for knowing affirmatively that all the same allegations they’d heard had been told to sergeant by the complainant, while sustaining the others for not knowing the same, even when the Sustained officers had seen the sergeant speaking directly with the complainant.
6 No area of concern identified.
7 No area of concern identified.
8 No area of concern identified.
9 The subject officer stated they didn't hear allegations at the time. The Investigator argued the officer "should have" heard them. The sergeant, who was on scene alongside the subject officer, was Not Sustained with the same argument, having stated the same thing.
Sustained: 2 Asian, 3
White Officers
Not Sustained: 1
White Sergeant, 1
Black Sergeant, 2
Asian Officers
10 No area of concern identified.
11 Investigator produced addendum to their own report, changing allegations for the sergeant subject (Hispanic) from Unfounded to Sustained. Per the addendum, "it was decided" by the Chief and the investigator was ordered to change the findings.
The CPRA investigation relied upon a section of DGO K-04 (Reporting and Investigating Force) that says "If any force investigation indicates misconduct..." The CPRA applied that standard to an allegation from a citizen. It is debatable whether a mere allegation of misconduct is equivalent to an investigation which produces actual evidence indicating misconduct had occurred. This may have been a misapplication of policy during the analysis.
Sustained: 1 Hispanic
Sergeant
Unfounded: 1 White
Officer, 1 White
Sergeant
Not Sustained: 1
Asian, 1 Hispanic, 7
White Officers, 1
White Sergeant, 1
White Lieutenant
12 No area of concern identified.
13 Addendum by DLI Coordinator, overruling investigating sergeant’s finding.
Sets a new standard that's not listed in policy or training: "Knowledge that a complaint is upset with a member should reasonably trigger the above two questions which DGO M-3 states shall be asked." "Upset" is not a standard that's found in OPD training or policy. The two questions referred to are "clarifying questions", which are appropriate when a member is "unsure" as to whether someone wants to make a complaint.
The subject was specifically asked about this and he stated he was "sure. " During the subsequent investigation, the investigator spoke with the complainant again, who said she did want to file a complaint against the subject for tone and demeanor. The DLI coordinator used the later affirmation of wanting to file a complaint against the subject for not previously asking "clarifying questions" of the complainant in the initial interaction. There is no analysis or clarification as to whether the complainant had wanted to file a complaint against the subject during the Sustained: 1 Black
Sergeant
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 35 of 40
35 initial interaction, or only later, once asked about it directly by the investigator. The DLI coordinator alleged the investigating sergeant as well as the Lieutenant and Captain all came to the "incorrect" conclusion and should receive negative notes in their files.
14 No area of concern identified.
15 Officers attempted to arrest DV suspect who refused to exit residence.
Officers left the apartment complex without making the arrest. As they left suspect shouted at them for their names and badge numbers. The officers said they’d give them to him if he came down (a ruse to make the arrest). The suspect said never mind, he’d get their car numbers. Officers did not leave IBC information in front of the suspect’s house. There is no training or policy for how or where officers should leave IBC information for someone who is refusing personal contact with them.
Sustained: 3 Hispanic,
1 Black Officers
16 No area of concern identified.
17 The officer “should” have asked clarifying questions to the complainant to see if she wanted to speak with a supervisor or file a complaint. The complainant, while speaking with the subject officer, did not say or express to him that she wanted to file a complaint, however the allegations of misconduct that she was “inferring” required him to ask clarifying questions. Reliance in the analysis of interpreting the complainant’s inferences and what the subject should have picked up on is subjective.
Sustained: 1 Black
Officer
18 Only Officer 1 was sustained for FTARC. The analysis leading to the allegation against the sergeant being Unfounded doesn't include the fact that Officer 2 had indicated to the sergeant the complainant was making allegations. The analysis relies only on Officer 1 telling the sergeant that everything was ok and he didn’t need to speak with the complainant. The sergeant didn't deconflict the differing statements between Officer 1 and 2 and a complaint was not accepted or referred.
Sustained: 1 Black
Officer
Unfounded: 1 White
Sergeant
19 A complaint was accepted by the sergeant on scene. As the officers drove the complainant (an arrestee) to jail, the complainant added additional allegations. The officers knew a complaint had already been accepted and did not re-summon or update the sergeant with additional allegations.
There is no training or policy covering how many times, or under what circumstances additional allegations need to be advised to the sergeant when a complaint has already been opened. The analysis cited the 'unsure' / ‘clarifying questions’ section of DGO M-03, which was not applicable.
Sustained: 1 Hispanic,
1 White Officers
Out of the 19 Sustained cases in 2022, the qualitative assessment identified areas of concern, including inconsistency, discretion, or subjective judgement in 58% (11/19).
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 36 of 40
36 Within these 11 cases were the following Sustained allegations against subjects, by race.
Sustained Allegations Within Cases Containing Areas of Concern Race of Sustained Number of Allegations
Sustained within 11
Cases with Areas of
Concern
Total Allegations 2022 Rate of Sustained
(with Analyses
Containing Areas
of Concern)
Asian 4 18 22%
Black 9 20 45%
Hispanic 10 32 31%
Other / Unknown 1 4 25%
White 8 38 21%
➢ 45% of all the 2022 FTARC allegations against Black subjects came to a Sustained finding within investigative reports that relied on inconsistent, subjective, or discretionary analysis. This next highest race group percentage was Hispanic, at 31%.
Qualitative analysis revealed areas of concern (inconsistency, discretion, subjective judgement) in 11 of the 19 sustained FTARC cases in 2022.
➢ Common themes from the cases containing areas of concern included:
• Reliance on “unsure” and “clarifying questions” sections of DGO M-03, whether the subject was “sure” or otherwise.
• Sergeants speaking with complainants but receiving different information from complainant than what the complainant had stated previously to officer(s); the officer(s) being held responsible for those differences.
• Sergeants were not assessed as subjects or were found “other-than-sustained.”
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 37 of 40
37 Appendix A
Chi-Square Calculation for Sustained Rate of FTARC Allegations White sworn members had a sustained rate of 26% while Black sworn members had a sustained rate of 60%, a statistically significant difference.
Other than Sustained Sustained Chi-Square
p
Observed Expected Observed Expected Value
White 28 23.6 1.06 10 14.4 0.65 4.97 0.026 Black 8 12.4 2.02 12 7.6 1.23
Sustained Rate of FTARC Allegations
2022 Sustained Rate
Asian/Filipino 44% (8/18)
Black 60% (12/20)
Hispanic 43% (14/32)
Other/Unknown 25% (1/4)
White 26% (10/38)
Total 40% (45/112)
FTARC As Stand-Alone Sustained Allegation
There were 19 cases in 2022 wherein at least one allegation of FTARC was found Sustained, covering 45 separate allegations.
Cases Where Subjects Were Sustained for FTARC vs Other Allegations Case #
FTARC
Allegations
Sustained
Other Allegations Sustained
in the same Case
Cases Where at Least One
Subject Was Black
1 4 4
2 5 0
3 3 0
4 1 0
5 5 1
6 2 1
7 1 2
8 1 0
9 5 2
10 1 0
11 2 0
12 2 3
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 38 of 40
38 13 1 1
14 1 N/A (only allegation was for
FTARC)
15 4 4
16 3 2
17 1 0
18 1 0
19 2 0
TOTAL 45 20 11
Within 9 of the 19 cases there were allegations for other MOR violations, but FTARC was the only allegation sustained. The nine cases accounted for 17 (38%) of the 45 Sustained allegations for year.
In 11 (58%) of the 19 cases at least one subject member was Black. A Black member was Sustained in 6 (67%) out of 9 of the cases where FTARC was the only allegation Sustained.
Put another way, 38% of the time wherein a subject of any race was Sustained for FTARC MOR violations they were other-than-sustained (exonerated, unfounded or not sustained) for the underlying conduct they may have unintentionally failed to accept or refer.
Table 28 Case #2 Review
In case #2, which resulted in a Sustained finding for one Black subject and three Hispanic subjects, and one White subject, FTARC was the only Sustained allegation, one for each. The other allegations under investigation included four allegations of improper search, seizure, or arrest, all of which were found Exonerated.
Officer 1 called their sergeant to the scene due to verbal allegations made by an arrestee. The sergeant interrupted the officer during the phone call, saying he was already in route. Once on scene the sergeant did not speak with Officer 1 , who was guarding the arrestee. The Sergeant spoke with Officers 2 and 3.
The Sergeant deferred investigative tactics and decisions to Officers 2 and 3 and asked no questions about complaints or force. The officers volunteered they had used low level force (Level 4 Type 32) to restrain the arrestee in handcuffs.
The arrestee’s attitude evolved during the interaction and became compliant and friendly. Officer 1 later testified that he believed Officers 2 and 3 had updated the sergeant as to the initial allegation while the sergeant was on scene and later, as the arrestee’s attitude changed, Officer 1 became sure the arrestee no longer wanted to make a complaint.
All officers were Sustained for FTARC for not informing the sergeant of the nature of the verbalized allegations at the early portion of the interaction. Officer 4 and 5, who were no t directly involved in the calling of the sergeant or of meeting with the sergeant, but who were on scene and assisting, were deemed Sustained as well.
The investigation’s analysis did not take into account that it was not Officer 1, 4 or 5’s fault that Officers 2 and 3 failed to describe the allegations to the sergeant, nor does it allow for it to have been reasonable for those officers to have assumed Officers 2 and 3 would cover the relevant information with the sergeant.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 39 of 40
39 The implication from the investigation was that, upon arrival on any scene where any allegation has been lodged, each officer is equally responsible for personally informing the sergeant of any perceived allegation, regardless of whether any individual officer who was likewise aware of the allegation, had already briefed the sergeant. Further, the analysis makes no assessment as to the sergeant’s own responsibility to check with Officer 1, who called him to the scene for a reason.
In this case, Officer 4 was black, was on scene to a ssist Officer 1, 2 and 3, knew Officer 1 had called the sergeant to the scene, and knew Officers 2 and 3 had spoken with the sergeant. Officer 4 had an attenuated level of responsibility to ensure the sergeant was properly informed of the allegations made by the arrestee. This was not articulated or offered as mitigation in the analysis. The sergeant was white.
His own culpability was not assessed as he was never a subject of the investigation but was rather labeled and interviewed as a witness. If the fai lure to accept or refer a complaint from the arrestee was one, it was a team failure, and the lack of opportunity to assess the sergeant’s own involvement in the matter may be seen as a deficiency.
➢ The choice to label the sergeant as a witness and not as sess their participation in the failure to accept or refer a complaint while on scene may be attributed to investigator’s discretion. Yet, the same case was reviewed through multiple layers of chain of command, and the deficiency remained, thus diffusing responsibility for said deficiency across a number of personnel. This case serves as another example of the systemic problem of confusion, assumptions, and opportunities for discretion inherent in assessing FTARC allegations.
Case 3:00-cv-04599-WHO Document 1622-1 Filed 01/19/24 Page 40 of 40
EXHIBIT 2
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EXHIBIT 3
Case 3:00-cv-04599-WHO Document 1622-3 Filed 01/19/24 Page 1 of 13 Case 3:00-cv-04599-WHO Document 1622-3 Filed 01/19/24 Page 2 of 13 Case 3:00-cv-04599-WHO Document 1622-3 Filed 01/19/24 Page 3 of 13 Case 3:00-cv-04599-WHO Document 1622-3 Filed 01/19/24 Page 4 of 13 [Date]
[Name of Complainant]
[Address of Complainant]
RE: IAD File Number [XX-XXXX]
Dear [Name of Complainant]:
You initiated a complaint against the personnel or procedures of the Oakland Police Department (OPD). The employees of the Oakland Police Department are committed to the fair and equitable treatment of all residents and visitors to the City and we undertake robust investigations into allegations of misconduct, or failed policies and procedures, in our constant effort to evolve and serve our customers. We recognize that, even when an officer is professional and acting in line with policy, many interactions with police are unpleasant to citizens as these interactions, by necessity, involve a curtailing of citizens’ autonomy, and can legitimately be experienced as questioning of their integrity, or an affront to their dignity. We hope future opportunities to serve your law enforcement needs result in a positive experience for you. The resolution to the complaint investigation is listed below.
An investigation was conducted into the circumstances surrounding your allegation(s) and investigative findings are listed here:
1. MOR Description – (Template, remove italicized language before finalizing) A. One sentence description of the Complainant’s allegation.
B. Result of the Investigation (Sustained, Not Sustained, Unfounded, or Exonerated).
C. If applicable, w hether any officers received disciplin e. SNFs may be referred to as “Counseled and Trained.”
D. If applicable, any department-wide training or recommended policy / procedure updates emanating from the investigation.
2. Repeat Part 1 per allegation, as necessary.
The Department thanks you once again for your concern and participation in this process. If you have any questions regarding this matter, please telephone me at (510) 238 -3161 on any weekday between 9:00 AM – 5:00 PM.
You may have also filed a complaint with the Community Police Review Agency. To follow up on that investigation, please contact the CPRA at (510) 238-3159.
Sincerely,
[Name] Date: _____________
Lieutenant of Police
Internal Affairs Division
Case 3:00-cv-04599-WHO Document 1622-3 Filed 01/19/24 Page 5 of 13
EXAMPLES OF MOR FINDINGS PARAGRAPHS
Example 1:
Performance of Duty: Care of Property – The complainant alleged that $800 cash was missing from his property after being placed under arrest. An investigation ensued, evaluating and analyzing evidence and, where applicable, subject and witness statements. The investigation did not disclose sufficient evidence to determine if the alleged conduct occurred. The officer(s) were not sustained for misconduct in this matter.
Example 2:
Use of Physical Force (Comparable to Level 2) – The plaintiff alleged on June 1, 2020, police fired a direct impact munition at 14 th St & Broadway. An investigation ensued, evaluating and analyzing evidence and, where applicable, subject and witness statements. The investigation disclosed sufficient evidence to determine that the alleged conduct occurred and was not in accordance with law or OPD rules, regulations, or policies. An officer has been sustained for misconduct and has received a disciplinary recommendation of suspension. The Department has redist ributed Training Bulletin III -H Specialty Impact Munitions as a reminder of the Department’s expectations and guidelines surrounding such uses of force.
Case 3:00-cv-04599-WHO Document 1622-3 Filed 01/19/24 Page 6 of 13 1 How to Think About Unfounded Findings in Internal Investigations
Purpose
This information bulletin is to standardize and clarify the structuring of investigative questions within administrative investigations to guide the investigator in examining the appropriateness of behavior that occurred rather than the absence of improper behavior.
The Department prefers investigations assess officers' conduct on scene and, when such conduct is deemed appropriate, to rely upon the Exonerated finding. Unfounded findings should only be used when the subject member performed no conduct related to the allegation. For example, (1) if an officer was not on the scene, (2) if an officer did not take part in the arrest at issue, (3) if an officer did not have any bodily contact with a subject/complainant, (4) if an officer did not have any verbal interaction with a subject/complainant, or (5) if an officer did not have any verbal interaction with any other person that was heard by or observed by a subject/complaint.
The first part of this bulletin cuts right to the heart of what the Department wants to see from investigative question phrasing. The second part of the bulletin discusses the background and genesis of how and why the Department wishes to see the investigative question phrasing become more standardized.
I. Do This: Investigative Questions
Investigators should frame their questions as assessments of whether the conduct or actions performed by the subject matter align with policy and/or the law. Investigators should inquire whether what the member did was lawful and appropriate rather than solely focusing on whether it was inappropriate. Structuring investigative questions should facilitate a more appropriate selection of Exonerated versus Unfounded outcomes.
Some Examples:
Force
Was any force used?
Was the force used upon (Insert Name) compliant with legal and policy requirements? Yes: Exonerated.
No: Sustained.
Cannot Determine: Not Sustained.
The evidence reflected that there was no force used by the officer: Unfounded.
Arrest
Was an arrest made?
Was the arrest of (Insert Name) compliant with legal and policy requirements?
INFORMATION BULLETIN
OAKLAND POLICE DEPARTMENT
6 Dec 23
“Information Bulletins shall be used to set forth information, notices, or announcements regarding topics of general interest. Such bulletins shall not constitute official policy. Information Bulletins expire two years from the date of publication unless revised, canceled, or superseded sooner. Members shall retain them until expiration.” Case 3:00-cv-04599-WHO Document 1622-3 Filed 01/19/24 Page 7 of 13 2 Yes: Exonerated.
No: Sustained.
Cannot Determine: Not Sustained.
The evidence reflected that the officer was not involved in the arrest: Unfounded.
Conduct Towards Others – Demeanor
Was there an interaction between the complainant and the member? Was the interaction between the complainant and the member compliant with policy requirements for appropriate demeanor?
Yes: Exonerated.
No: Sustained.
Cannot Determine: Not Sustained.
The evidence reflected that the member had no interaction with the complainant: Unfounded.
Performance of Duty
Was the member on the scene?
Did the member’s actions comport with the policy and legal requirements of the department? Yes: Exonerated.
No: Sustained.
Cannot Determine: Not Sustained.
The evidence reflected that the member had no involvement in the incident: Unfounded.
Truthfulness
Did the member provide a statement?
Was the statement made by (Insert Name) compliant with policy requirements to always be truthful? Yes: Exonerated.
No: Sustained.
Cannot Determine: Not Sustained.
The evidence reflected that the member had no involvement in the incident and did not provide a statement: Unfounded.
II. Why The Department Wants You to Do the Above: The Background
In 2023, in response to concerns over whether the Oakland Police Department appropriately utilized the finding of Unfounded when resolving administrative investigations, the Department requested the assistance of its Stanford University partners to analyze the matter and provide some recommendations. This information bulletin addresses an area of improvement revealed in their study. Namely, that the structure of the question posed by an investigator is deeply important to the subsequent findings and further, that the Department needed more offering on how to structure the questions.
An investigator may think about this allegation in two different ways: conduct that occurred and needs to be assessed for policy and legal compliance; or misconduct that assumes impropriety and needs to be assessed as a violation of a rule or regulation.
Assessing conduct requires acknowledging some interaction occurred and determining if the interaction was appropriate.
Case 3:00-cv-04599-WHO Document 1622-3 Filed 01/19/24 Page 8 of 13 3 Assessing misconduct is less clear. It assumes the actions taken by the member were inherently incorrect. For example, the officer made an illegal arrest, or the member used excessive force. One then has to determine if the misconduct ever occurred. In phrasing the question as assessing misconduct, the investigator may inadvertently eliminate Exonerated as an option.
For example, let’s assume the investigator structured their investigative question as such:
“Did the member perform an illegal arrest?”
Let’s further assume the investigator determined the arrest was, in fact, legal. They’ve now left themselves with the below quandary between two findings.
1. Unfounded: This finding would indicate an illegal arrest did not occur. Yet, an arrest did occur. Using Unfounded should be reserved for those instances when there’s proof that nothing remotely close to the allegation happened. In this case, the arrest is related to the allegation, so Unfounded cannot be the correct choice.
2. Exonerated: This finding would indicate the illegal arrest was policy and law-compliant. The Department does not condone illegal arrests. Exonerated is, therefore confusing and not the right choice for a finding either.
As you can see, the phrasing of the investigative question can inadvertently change the parameters for which findings can be used. The structure of the question matters. Thus, the following section sets some guidelines for how the Department structures an investigative question.
How to Think About It
The Department prefers investigators follow these steps when phrasing an investigative question. First, break down the allegation being assessed into two steps:
1. Assess whether the conduct occurred.
Examples:
i. Was force used?
ii. Was an arrest made?
iii. Did the member speak with the complainant?
If the investigator answers “No” to a Step 1 question, then the finding may reasonably be Unfounded, depending on the details. Example: If no force was used, then no conduct occurred, and there is no need to assess the conduct for policy or legal compliance.
If the investigator answers “Yes” to a Step 1 question, then the investigator proceeds to Step 2. Once an investigator has proceeded to Step 2, Unfounded is no longer a viable option:
2. Assess whether the conduct was law and policy-compliant.
Examples:
i. Was the force performed consistent with DGO K-03?
ii. Was the arrest made relying upon probable cause?
iii. Was the manner in which the member spoke with the complainant professional? The answer to Step 2 will clearly indicate how to apply a finding to the case.
Case 3:00-cv-04599-WHO Document 1622-3 Filed 01/19/24 Page 9 of 13 4 Chart 1: Two-Step Assessment to Reach a Finding
Step 1
Some Actions Taken / Officer was Involved / Some Conduct Occurred or Should have Occurred? Yes No
Step 2 Unfounded
Policy and Law Compliant?
Yes No Unable to Determine
Exonerated Sustained Not Sustained
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EXHIBIT 4
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DALZIEL BUILDING • 250 FRANK H. OGAWA PLAZA • OAKLAND, CALIFORNIA
December 13, 2023
To: Oakland Police Commission
[VIA EMAIL ONLY]
Re: Annual Audit Work Plan for Fiscal Year 2024 | Supplemental Information
Honorable Members of the Oakland Police Commission,
Upon the release of its Annual Audit Work Plan for Fiscal Year 2024, the Office of the Inspector General (OIG) would like to share supplemental information regarding its role as an instrument of Oakland’s civilian oversight structure. Since its in ception, in 2022 , the OIG has assiduously worked to stabilize and enhance the city’s civilian oversight system. In the past two years, the OIG led its police accountability work via public reports and memos, like the Compliance Evaluation of Departmental General Order B-08: Field Training Program, and its 2022-2023 Annual Report, where the office’s findings and policy recommendations are listed.
Per, Oakland City Charter Section 604(f)5 the responsibility of the OIG is outlined as follows:
The OIG shall audit the Department’s compliance with the fifty -two (52) tasks described in the Settlement Agreement in United States District Court Case number C00 -4599, Dephine Allen, et al., v City of Oakland, et al., and make recommendations to the Department, the Commission and City Council based on its audit(s), even after the Settlement Agreement expires. The OIG may review legal claims, lawsuits, settlements, complaints, and investigations, by, again st involving the Department and the Agency, to ensure that all allegations of police officer misconduct are thoroughly investigated, and to identify any systemic issues regarding Department and Agency practices or policies.
To complete the above-mentioned requirements, while informing the Oakland Police Commission’s approach to providing effective civilian oversight , the OIG will continue and expand on the following strategies:
• Conduct required and proactive audits, evaluations, reviews, and inspections o Current and upcoming projects are outlined in the Annual Audit Work Plan o All projects align with OIG’s 2024-2027 Strategic Plan • Disclose all public reports and synopses in a transparent manner • Utilize the office’s recently installed TeamMate+ audit software and TeamMate Analytics to maximize efficiency and innovation
• Maintain a presence at relevant meetings to observe procedures, collect data and gather information that may inform the OIG’s work, including:
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o Internal Affairs Division Case Review
o Executive Force and Force Review Boards
o Independent Monitoring Site Visits
o OPD Risk Management Meetings
o Case Management Conferences
o City Council and Public Safety Committee Meetings
• Work collaboratively with stakeholders (community members, non-profits, elected and appointed officials, civilian oversight practitioners, etc.) to optimize project impact and community involvement
• Meet monthly with the Deputy Chief of the Bureau of Risk Management • Schedule monthly meetings with the Police Chief to streamline communication
As OPD moves through its sustainability period, the OIG is committed to continued conversations with the Police Commission about its audits of police practices and procedures in Oakland . Via public reports and memos, the OIG hopes to deliver to the Police Commission sound findings and recommendations to inform their decisions.
While t he OIG is only one component of the city’s police accountability apparatus , we are committed to providing effective and ef ficient civilian oversight on behalf of every Oaklander .
The enclosed Annual Audit Work Plan serves as a list of the tasks at hand. I look forward to the Commission’s support of the OIG, as the office works to complete these project s with limited resources. Should you have any questions, please send me an email at [email protected].
Sincerely,
Inspector General Michelle N. Phillips
City of Oakland, Office of the Inspector General
Case 3:00-cv-04599-WHO Document 1622-4 Filed 01/19/24 Page 3 of 12
Office of the Inspector General
Annual Audit Work Plan
Fiscal Year 2024 | December 11, 2023
Case 3:00-cv-04599-WHO Document 1622-4 Filed 01/19/24 Page 4 of 12
DALZIEL BUILDING • 250 FRANK H. OGAWA PLAZA • OAKLAND, CALIFORNIA
Dear Oaklanders,
It brings me great joy to share with you the Office of the Inspector General’s (OIG) Annual Audit Work Plan for Fiscal Year 2024. As a department still in its infancy, we are proud to have established a civilian oversight agency that community members can trust and work daily to sustain our growing momentum. With only two years under our belt, we have learned greatly from the feedback of residents, community partners, elected and appointed officials, and fellow oversight practitioners. From this qualitative data, we have derived our Annual Audit Work Plan, which will serve as a roadmap for the projects we plan to accomplish over the fiscal year.
With 81% of Oakland voters approving Measure S1, in 2020, the OIG was established to strengthen local police reform efforts. This overwhelming community support was engrained in 2020’s national conversation around police practices and standards, following the tragic murder of George Floyd. Oakland itself has a rich history of police accountability, as the birthplace of the Black Panther Party, the location where Oscar Grant wa s killed by a Bay Area Rapid Transit Police Officer , and headquarters to one of the longest federally monitored law enforcement agencies, in the nation.
Stemming from the ruling of Delphine Allen, et al. v. City of Oakland, more commonly known as the “Riders” case, the Oakland Police Department (OPD) has been under federal oversight for over 20 years. This ruling was a direct response to community members' complaints of mistreatment and civil rights violations at the hands of six veteran officers . Consequently, the corresponding and ongoing Negotiated Settlement Agreement (NSA) provided OPD fifty-two (52) tasks to address its policies, practices, and procedures, as well as discontinue what the court described in April 2023 as a “cultural rot.”
As the auditing arm of Oakland’s civilian oversight apparatus, which also includes the Oakland Police Commission and Community Police Review Agency, it is our responsibility to oversee and make recommendations that optimize OPD’s compliance with the NSA, departmental policies, and the law. Within the enclosed Audit Work Plan, you will find that the OIG aims to deliver on this mandate by conducting requested and proactive audits, evaluations, inspections, and policy reviews. Additionally, to enhance the quality of our work products, we will continue to observe relevant meetings for additional insight, highlight systemic social observations from the community, as well as utilize data-backed studies and reports. Through this multi-pronged and community-centered approach, I am confident that the OIG can and will help Oakland hold its police officers accountable.
Sincerely,
Inspector General Michelle N. Phillips
City of Oakland, Office of the Inspector General
Case 3:00-cv-04599-WHO Document 1622-4 Filed 01/19/24 Page 5 of 12
I | Mission and Vision
The Office of the Inspector General (OIG) is an independent, non -partisan oversight agency that increases community trust and ensures accountability in the Oakland Police Department (OPD). In its administration of duties, the OIG works to implement a fair, thorough, and autonomous system of civilian oversight of law enforcement. The OIG does this by conducting independent and objective audits, evaluations, inspections, and reviews of the OPD and the Community Police Review Agency (CPRA). These methods promote constitutional, community-based policing, as well as a transparent, accessible, and fair system for police accountability . The office has welcomed community and agency engagement, to assist in identifying long-term, and systemic reform opportunities. The OIG also plans to establish an interactive dashboard that will promptly share relevant data and information with members of the public. This technology will optimize police services delivered to all the City of Oakland neighborhoods.
.
II | The Office of the Inspector General’s Work
The OIG's primary functions are to conduct performance audits, evalu ations, inspections, and reviews; provide independent and objective analysis to the public; and make recommendations to the action holders including those responsible for governance and oversight . In some cases, the OIG may also review legal claims, lawsuits, settlements, complaints , and investigations by, against , or involving OPD and CPRA. This effort ensures allegations of officer misconduct are thoroughly investigated and provides an opportuni ty to identify systemic issues within OPD or CPRA’s practices and policies. The OIG seeks to not only hold OPD accountable but to have community impact and public trust.
The OIG conducts its audits in compliance with the Government Auditing Standards set forth by the Government Accountability Office under the U.S. Comptroller General; as well as its evaluations, inspections, and reviews, under the Principles and Standards for Offices of Inspector General (Greenbook) set forth by the Association of Inspectors General.
In addition to audits, evaluations, inspections, and reviews, the OIG completes the following:
• Annual Reports: Per the Muni cipal Code, the OIG must prepare and issue an annual report that summarizes the OIG’s activities and work performed during the Fiscal Year (FY) 2024.
• Compliance and Monitoring: The OIG periodically follow s up on recommendations made to OPD, CPRA, and the Oakland Police Commission.
• Special Project s: The OIG may conduct audits, review s, evaluations , inspect ions, and other projects under its purview, as requested by the Police Commission and City Council.
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III | Strategic Priorities
The OIG’s authority, duties , and responsibilities are outlined in Section 604 of the Oakland City Charter and Chapter 2.45 of the Oakland Municipal Code. The OIG shall audit OPD’s compliance with the fifty -two (52) tasks described in the Negotiated Settlement Agreement (NSA) Delphine Allen, et al., v. City of Oakland, et al., case number COO-4599, and make recommendations to OPD, the Police Commission, and City Council, even after the NSA expires.
The purpose of the OIG's strategic priorities is to articulate long-term goals, derived from the office's mission, vision, operations, and community stakeholders. The strategic priorities encompass the OIG values and goals , which include, but are not limited to the following:
Values Goals
Prudence Sustainable Relationships
Integrity Excellence
Impartiality Transparency
Community Innovation
Additionally, the OIG’s strategic priorities are informed by a combination of jurisdictional requirements (outlined in the City Charter, Municipal Code, NSA), shareholder feedback, members of the public, as well as institutional knowledge of OPD’s Departmental General Orders (DGOs), patterns and practices. The OIG identified three (3) strategic priorities:
1. Acquire a baseline of OPD staffing and resources to optimize their patrol, investigative, and administrative functions.
2. Sustain compliance of inactive Internal Affairs Division (IAD) related NSA tasks.
3. Assist with upholding Oakland residents’ civil rights and civil liberties , as outlined in the Constitution , when interacting with OPD.
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IV | Projects
The proposed projects for FY 2024, were determined by the OIG’s multisource observations, research, and analysis. As the environment of local policing shifts over time, the OIG may prioritize other projects not listed in this document. If circumstances (staff capacity, internal/external prioritization, etc.) change, this audit work plan may be amended to include, remove, delay, or move up corresponding projects.
In August 2023, the OIG surveyed community members' feedback on OIG’s potential project priorities for FY 2024.
OPD Resourcing and Service Impact
OPD Compliance Review of Vehicle Stops, Field Investigations , and Detentions (Task 34)
Task 34 of the NSA requires OPD officers to include specific data/ information within their reports on vehicle stops, field investigations, and detentions. Per the NSA, This information must also be stored in an accessible and searchable database for authorized personnel. The objective of this audit will be to evaluate OPD’s compliance with the Task 34 requirements and its associated DGOs.
Policy Review : DGO M-19 – Prohibitions Regarding Racial Profiling and Other Bias -Based Policing
DGO M-19: Prohibitions Regarding Racial Profiling and Other Bias -Based Policing, Report Writing Manual Inserts R-2: Completing the Stop Data Collection Form, N-1: Notice to Appear (Misdemeanor Citations), and N- 2: Notice to Appear (Traffic Citations) all incorporate Task 34 requirements. Compliance with DGO M-19 is of paramount importance, as it intersects with several areas of OPD’s service impact. Given its significance, the OIG plans to prioritize the review and analysis of DGO M-19, which hasn’t been updated since 2004.
Policy Review: DGO B-08 – Field Training Program
DGO B-08: Field Training Program policy has not been updated, in its totality, since 2014. The OIG completed a compliance evaluation in September 2023 , which identified some areas of concern that r equired additional review. With the field training program serving as new officers' first opportunity to witness the culture of OPD, this policy review was prioritized.
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Transparency, Accuracy and Accountability in “Inactive” IAD-Related NSA Tasks
The NSA outlines reforms that mandate that OPD must be in sustained compliance with the included 52 tasks and subtasks to be in full compliance with the NSA . The OIG reviewed Section III: Internal Affairs Division of the NSA and identified several tasks that were formerly deemed in compliance. Consequently, these tasks are no longer being monitored and are categorized as “inactive.” The OIG has elected to conduct an updated inspection on the following seven tasks, established under section III, to ensure continued compliance:
1. IAD Integrity Tests (Task 3)
2. Complaint Control System for IAD (Task 4)
3. Methods for Receiving Citizen Complaints (Task 7)
4. Classification of Citizen Complaints (Task 8)
5. Contact of Citizen Compla inant (Task 9 )
6. Summary of Citizen Complaints Provided to OPD Personnel (Task 11)
7. Documentation of Pitchess Responses (Task 13)
Special Projects: City Council or Police Commission
OPD Staffing Study and Resource Analysis (City Council)
Via an Oakland City Council policy directive, the City Administrator, or their designee ( OIG) was directed to conduct a staffing study and resource analysis of OPD. The study’s objectives would be to:
a. Identify current resources.
b. Determine the number of officers needed in a particular geographic area. c. Decide how staffing and operational resources should be allocated
Identifying OPD service impact through a call for service audit and resource allocation review is best when tied to a staffing study. To determine whether police are responding to calls for service efficiently, it is critical to establish a baseline of the number of available officers, target timeframes, and how to maximize alternative responses. The OIG will oversee this study from inception to completion, including its bid process, vendor deliverables, stakeholder updates, and public transparency.
Case 3:00-cv-04599-WHO Document 1622-4 Filed 01/19/24 Page 9 of 12
Case Review of IAD Case s 21-0862 and 22-0858 (Police Commission)
In July 2021, IAD conducted an internal misconduct investigation into a Sergeant’s actions in case 21-0862. The disputed findings in that investigation , brought to light by the Sergeant’s subsequent actions, resulted in an external investigation. Further discovery noted that the case involved and implicated, other officers, supervisors, and command staff , including the former Chief of Police. The external investigation resulted in several recommendations to change OPD policies, which the Court ordered OPD to implement. In July 2023, the Police Commission directed the OIG to review th is external investigation, case 22 -0858, for additional policy recommendations.
Case Review of IAD Cases 07-0538, 13 -1062 and 16 -0146 (Police Commission)
For more than 15 years, Oakland’s Bey family has filed complaints against OPD, and their corresponding civilian oversight agencies for alleged misconduct. Although those complaints have all been subsequently closed, the Bey family has continued to call for additional review or action. In November 2021, before the inaugu ral Inspector General took office, the Police Commission voted to direct the Inspector General to review the above listed closed IAD cases (also referred to as the Bey Matter) for potential policy recommendations. The purpose of this review is to identify lessons learned, and provide recommendations for clear, sound OPD polic ies that address certain community concerns.
Case 3:00-cv-04599-WHO Document 1622-4 Filed 01/19/24 Page 10 of 12 Newsletter
Scan the QR code to sign-up for the OIG mailing list or visit tinyurl.com/OIGMailingList.
Follow the #OaklandOIG on social media:
Search @OaklandOIG on Instagram & Twitter,
“City of Oakland, Office of the Inspector General” on LinkedIn & Facebook Email [email protected] Call (510) 238-2088
Visit https://www.oaklandca.gov/departments/inspector-general Case 3:00-cv-04599-WHO Document 1622-4 Filed 01/19/24 Page 11 of 12 OIG’s Annual Audit Work PlanFiscal Year 2024
The City Council requested theOIG oversee the study andanalysis of OPD’s currentresources. This information willbe critical to OIG’s subsequentcalls for service audit.
OPD Staffing Study & Resource Analysis
The Police Commissiondirected the OIG to reviewcases related to several complaints against OPD &the Community PoliceReview Board.
IAD Cases 07-0538, 13-1062 & 16-0146 Review
As follow-up to its complianceevaluation, the OIG is doing apolicy review of DepartmentalGeneral Order B-08: FieldTraining Program.
Policy Review of DGO M-19
Last updated in 2004, the OIGis conducting a review ofDepartmental General OrderM-19: Prohibitions RegardingRacial Profiling and OtherBiased-Based Policing.
Policy Review of DGO B-08
The OIG has elected to inspectseven Internal Affairs Divisionrelated Negotiated SettlementAgreement Tasks that werepreviously deemed compliant.
Inspection of Inactive IAD-RelatedNSA Tasks
The OIG is completing acompliance review of NegotiatedSettlement Agreement Task 34,which requires certain informationwithin stop, detention andinvestigative reports.
Compliance Review of Vehicle Stops,Detentions & Field Investigations The Police Commission directedthe OIG to review the policyrecommendations derived froman external investigation ofOPD misconduct.
IAD Cases 21-0862 & 22-0858 Review
Learn more about the office’s current and upcoming projects:
SCAN THE QR CODE OR VISIT
TINYURL.COM/OIGAUDIT24 FOR
THE FULL AUDIT WORK PLAN.
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