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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: Sept. 4, 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) .................................................................................................. 3 II. TASK 5 (COMPLAINT PROCEDURES FOR IAD) .................................................. 4 III. TASK 45 (CONSISTENCY OF DISCIPLINE POLICY) .......................................... 12 CONCLUSION .................................................................................................................. 16 CITY’S STATEMENT .................................................................................................... 24 OVERVIEW ....................................................................................................................... 24 I. THE CITY’S SIGNIFICANT ACHIEVEMENTS DEMONSTRATE THE
DEPARTMENT HAS EMBRACED THE SPIRIT OF THE NSA ............................ 26
A. The Department has meaningfully reduced racial disparity in stops .............. 26
B. The Department has meaningfully reduced racial disparity in handcuffing ............................................................................................................ 29
C. The Department’s consistent application of policies, including its policy limiting parole and probation searches, contributes to the reduction in disparity .................................................................................................................. 31
D. Officers use and report force appropriately and Department review is consistently thorough ............................................................................................ 34
E. The Department Uses Deadly Force Less Frequently than Other California Police Departments and Departments in Cities with Similar Violent Crime Rates ........................................................................................................................ 36
F. The Department’s Has Increased Diversity in its Ranks .................................. 38
G. The Department’s Has Met Internal Affairs Investigation Timelines for More than Two Full Years ............................................................................................. 40
H. The Department Resolved the Disparity Observed in 2022 Internal Affairs Case Outcomes .......................................................................................... 40
II. THE DEPARTMENT’S INTERNAL INVESTIGATIONS HAVE IMPROVED SINCE 2023 ................................................................................................................ 41
A. The City Has Addressed the Failures that Occurred in 2022 and Early 2023 (Task 5). ................................................................................................................. 41
B. The City Embodies the Spirit of the NSA Even As it Struggles to Sustain Long-Term Task 5 Compliance ............................................................................ 42
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1. The City Cares About the Integrity of Internal Investigations and Accountability .................................................................................................... 42
2. The City Demonstrates its Commitment to Ensuring Police Accountability by Empowering Civilian Oversight ......................................................................... 43
3. The Department’s Internal Introspection Demonstrates its Commitment to Integrity and Consistency in Internal
Investigations ...................................................................................................... 44
C. The Department Maintains an Effective, Sustainable Process to Monitor and Ensure Consistency of Discipline (Task 45) ................................. 45 CONCLUSION ................................................................................................................. 47 THE POLICE COMMISSION’S STATEMENT ......................................................... 48
I. INTRODUCTION ....................................................................................................... 48 II. CHARTING A PATH .................................................................................................. 50 A. Stabilize Incoming OPD Leadership ..................................................................... 50 B. Strengthen OPC Capacity ...................................................................................... 51 C. Change OPD Culture ............................................................................................. 55 D. Improve Stakeholder Communication and Cooperation ...................................... 60 E. Sustain Compliance ................................................................................................ 61 III. CONCLUSION .......................................................................................................... 64 THE OPOA’S STATEMENT ......................................................................................... 66 Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 4 of 71 1 2
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PLAINTIFFS’ STATEMENT
PLAINTIFFS’ CURRENT POSITION
The Independent Monitor for the OPD has issued two NSA Sustainability Period Reports (Seventh and Eighth Sustainability Reports) since the last Case Management Conference statement. This sustainability period involves the monitoring of the “last remaining and most critical Negotiated Settlement Agreement Tasks: 2, 5, 20, 24, 25, 26, 30, 31, 34, 41, and 45.” (Dkt. 1525, p. 2) As of the publication of the Eighth NSA Sustainability Period Report of the IMT, OPD is in compliance with nine of these eleven Tasks:
1. Task 2 (Timeliness Standards and Compliance with IAD Investigations –in compliance when most recently assessed by during the Eighth NSA Sustainability Period 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 Eighth NSA Sustainability Period Report);
5. Task 25 (Use of Force Investigations and Report Responsibility – in compliance per the Eighth 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 (FRB) – in compliance when most 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 Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 5 of 71 1 2
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Management – in compliance when most recently assessed in the Third NSA Sustainability Period Report)
As of this writing, OPD is not in compliance with two NSA tasks:
1. Task 5 (Internal Affairs Division (IAD) Complaint
Procedures – in compliance when assessed by the
IMT in the 79th Report, “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 returning to compliance in the Sixth
and Seventh IMT Reports. However, the most
recent (8th) IMT Sustainability Report determined
that OPD is again out of compliance with Task 5, an
assessment that is supported by public reporting
that will be cited at length, below
, and
2. 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,
between the Third Sustainability Report and the
most recent, Eighth Report, the IMT has reported
“no compliance finding” for this Task.
Plaintiffs’ attorneys agree with the IMT that OPD is not currently in compliance with these two Tasks. As recently as April of this year, OPD was still in compliance with Task 5. That is no longer the case, and the Department is objectively backsliding with regard to fulfilling its NSA obligations.
All nine other Tasks that are being actively monitored by the IMT during the most recent Sustainability Period were in compliance at the time of the January Case Management conference, and remained in compliance according to the IMT’s Eighth NSA Sustainability Period Report, although the Department’s compliance status with Task 2 was extremely tenuous and at the tipping point of mathematical non-compliance. Plaintiffs will therefore focus on Tasks 2, 5 and 45, which will Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 6 of 71 1 2
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determine whether and when OPD is able to finally achieve full compliance with the NSA.
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 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 31 Class I misconduct cases during the period covered by the Eighth OPD Sustainability and determined that 29 of these cases were completed in a timely manner. This represented an 91% timely-completion rate, which put OPD above the 85% minimum-threshold required for compliance with NSA Task 2. During the period covered by the previous four OPD Sustainability Reports, the IMT determined that only 85-89% of Class I misconduct cases were, respectively, completed in a timely manner, and OPD’s continued compliance with this Task was in serious jeopardy. Indeed, as recently as December 2022 (during the period covered by the Second Compliance Report), OPD was completing 100% of Class I misconduct cases in a timely matter. (Second Sustainability Period Report, p. 3). The uptick in the timely-completion rate during the period covered by the Eighth IMT report is a step in the right direction.
The IMT also reviewed 144 Class II cases during the period covered by the Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 7 of 71 1 2
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Eighth OPD Sustainability Report, and found that 138 were in compliance with established timelines. This represents a 96% timely completion rate, which was the same percentage that OPD found in their previous two sustainability reports.
OPD was previously in compliance with this task for so long that it became inactive, before suddenly falling out of compliance with no warning. After reattaining compliance, OPD entered another cycle of slowly-reducing timely- completion rates during the periods covered by Sustainability Reports 3-6, and it once again appeared that OPD was at risk of once again falling out of compliance.
In fact, the IMT’s review of Class I cases during the period covered by the Sixth Sustainability Period Report showed that OPD met the absolute minimum 85% required by the NSA. (This threshold, as Plaintiffs’ attorneys have repeatedly noted, is substantially lower than what is required by most other consent decrees).
Had even one more Class I investigation fallen outside of the established timelines during the period covered by the Sixth Sustainability Report, OPD would have once again fallen out of compliance with this Task.
More recent reviews by the IMT suggest that OPD may have righted the ship with regard to timely-completion rates in Internal Affairs, but it is critical that OPD remain vigilant about meeting the timeliness deadlines mandated by Task 2 going forward. As ever, 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. OPD must remain in compliance with Task 2 if the Department 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, Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 8 of 71 1 2
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the citizen is brought to a supervisor or IAD, or a supervisor is summoned to the scene.
• Task 5.2, which requires that if there is a delay of greater than three hours in supervisory response, the reason for the delay must be documented.
• Task 5.3, which requires that where a complainant refuses to travel to a supervisor, or wait for one, personnel make all reasonable attempts to obtain specific information to assist in investigating the complaint. • Task 5.4, which requires that specific information be documented on a complaint form and submitted to the immediate supervisor or, in his/her absence, the appropriate Area Commander.
• Task 5.5, which requires that the supervisor or Area Commander notify Communications and forward any pertinent documents to IAD.
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 onset of the Sustainability Period, the IMT determined that IAD investigations had improved to the standards mandated by the NSA; 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. OPD remained out of compliance with Task 5 over the next four reports as the Department, Plaintiffs’ attorneys, and the IMT crafted, refined, and implemented policies relevant to the Internal Affairs function following the publication of the “Conclusions and Recommendations Re: Vehicle Collision and Elevator Discharge Incidents” drafted by the independent law firm, Clarence Dyer, & Cohen LLP. (Dkt. 1564, “Clarence Dyer Report”)
Plaintiffs’ attorneys were active participants in this process, and reported to the Court that many of the policies they worked to craft with various stakeholders Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 9 of 71 1 2
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within the Department were published and in effect. Accordingly, during the period covered by the 7th Sustainability Report, OPD regained compliance with Task 5, and it appeared on the surface that the Department was making real strides toward sustainable compliance with this Task and, therefore, meeting all requirements mandated by the NSA.
It is therefore extremely disappointing to report that OPD has once again fallen out of compliance with Task 5 in the most recent Sustainability Report, in specific ways that echo previous catastrophic failures related to the Internal Affairs function within the Department.
During the reporting period covered by the Eighth Sustainability Report, the IMT “learned of investigations conducted by both the Community Police Review Agency (CPRA) and an outside investigator into the actions of senior members of the Department with regard to an earlier IAD investigation. The outside and CPRA investigations resulted in sustained findings and discipline against several senior members of the Department – to include terminations, demotions, and suspension. (8th Sustainability Report, pp. 6-7)
Plaintiffs’ counsel was allowed to review both the City’s report (prepared by an outside investigator) and the CPRA report in this matter after agreeing to, signing, and filing a protective order regarding these materials with this Court.
The fully executed and filed protective order was entered as Dkt. 1642, and is also attached hereto as Exhibit 1. 1
Plaintiffs’ attorneys have abided by all terms of this protective order, which includes a provision that plaintiffs’ counsel may not file in the public record any Protected material. (Exhibit 1, p. 7:19-20). However, the protections conferred by the protective order “do not cover… any information that is in the public domain at the time of disclosure to Plaintiffs’ counsel or becomes part of the public domain
1 https://ecf.cand.uscourts.gov/doc1/035124402737
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after its disclosure as a result of publication not involving a violation of [the protective] Order.” (Exhibit 1, p. 3:10-13). Accordingly, all specific descriptions of this matter, below, are sourced solely and entirely to public news reporting prior to the date Plaintiffs’ Attorneys signed the Protective Order, and do not contain any information that is not currently part of the public record, or that would otherwise violate the protective order entered into by Plaintiffs’ attorneys.
On April 30, 2024, Darwin BondGraham and Ali Winston of The Oaklandside published an article titled “3 Oakland police officers face discipline for obstructing internal affairs case: 8 officers in total, including 4 commanders, allegedly botched an examination of bribery and perjury charges against a homicide investigator.” A copy of this article is included as Exhibit 2 to this Case Management Conference Statement)2 (. Notably, it was published 18 days before the protective order was signed and filed this matter. (Indeed, this reporting precipitated Plaintiffs’ attorneys request to see the City and CPRA reports in this matter. It is inappropriate that the City of Oakland chose to withhold this information from Plaintiffs’ attorneys and, apparently, the IMT, prior to the disclosure of the underlying matter by journalists.)
According to Mr. BondGraham and Mr. Winston, “an investigator with the Oakland Police Commission’s Community Police Review Agency – the city’s civilian police watchdog – found [that] eight officers engaged in a range of serious violations, including obstructing an internal affairs case and failing as commanding officers and supervisors to properly oversee their subordinates and carry out their duties.
One officer was found to have lied.” (Exhibit 2, p. 1).
The Oaklandside article continues, further: “the case centers on allegations that at least three officers obstructed an internal affairs investigation that OPD opened in 2022 to look into possible bribery, perjury, and witness intimidation by
2 (https://oaklandside.org/2024/04/30/oakland-police-officers-face-discipline- obstructing-internal-affairs-case-phong-tran/
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OPD investigator Phong Tran. Tran’s actions resulted in two men being freed from state prison after their murder convictions were overturned by the Alameda County Superior Court judge who tried the case against the alleged murderers. In a highly unusual development, the judge’s ruling followed a writ by both the District Attorney and the Public Defender following the withholding of evidence by the OPD.
High-ranking OPD supervisors allegedly failed to oversee the internal affairs case examining Tran’s actions, to ensure that it was fairly handled, and Tran was allowed to return to work as a homicide investigator even though he would later be criminally charged by the district attorney.” (Exhibit 2, p. 1) An Alameda County Superior Court judge overturned the aforementioned murder convictions after an eyewitness recanted her claims and said she “lied about the case after receiving multiple cash payments from Tran.” (Exhibit 2, p. 3). In August 2022, then-District Attorney Nancy O’Malley notified OPD about the allegations against Officer Tran, and in 2023 Officer Tran was criminally charged with perjury and witness intimidation. According to the Oaklandside’s reporting, the OPD internal investigator who handled the investigation into Officer Tran concluded that “[I]t may be acceptable practice for investigators to provide financial aid [to witnesses] without proper documentation.” (Exhibit 2, p. 3). The OPD Internal Affairs investigation also determined that the allegations against Tran were “unfounded”, and this finding was approved by commanders with OPD.
However, the CPRA subsequently examined “how OPD’s internal affairs division handled the allegations that Tran bribed a witness”, and Mr. BondGraham and Mr. Winston re-published the CPRA findings in this matter, which were originally posted online as part of the Police Commission’s April 25, 2024 meeting agenda. According to this screenshot (Exhibit 2, p. 2), the CPRA investigated nine OPD officers. One officer was cleared of wrongdoing, while the other eight “were found to have committed at least one of three types of violations” (Exhibit 2, p. 2), including three officers who obstructed the internal affairs process. The summary Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 12 of 71 1 2
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information sheet originally published by the CPRA and then incorporated into the April 30, 2024 Oaklandside article is included for reference, below:
On July 25, 2024, the Oaklandside published a follow-up report titled “LeRonne Armstrong and another OPD chief were investigated for leadership failures.” This article is attached as Exhibit 3 to this Case Management Conference statement. 3
According to this reporting, Chief Armstrong was investigated by “the Police Commission’s Community Police Review Agency and an outside firm”, who found that Chief Armstrong and his successor “failed to ensure OPD’s internal affairs division rigorously and fairly examined the accusations against [Officer Phong
3 https://oaklandside.org/2024/07/25/leronne-armstrong-investigated-disciplined- phong-tran-internal-affairs-case/
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Tran].” (Exhibit 3, p. 1). The investigators concluded that the Chiefs “fell short in their authorities and responsibilities as commanding officers”, and “recommended that Armstrong face a suspension if he gets his job back.” (Exhibit 3, p. 1). Chief Allison also served a two-day suspension as a result of the CPRA’s review of the Tran case. (Exhibit 3, p. 2).
Given that the primary thrust of Task 5 monitoring by the IMT pertains to the quality of IAD investigations, it is not surprising that OPD is out of compliance with this Task. The IMT’s Eight Sustainability Report does not discuss the specifics of the Tran case but notes: “These personnel findings and systemic deficiencies transcend the Department as a whole and call into question the capacity of the Department’s internal investigatory process. Based on these investigations, the serious deficiencies in the Department’s Internal Affairs Division render the Department out of compliance with Task 5.” (8th Sustainability Report, pp. 6-7, emphasis added).
The very point of the NSA is to establish a framework for effective self- governance without the perpetual involvement and/or oversight of Plaintiffs’ attorneys, the Monitor, and this Court. The public reporting about this investigation – and, again, Plaintiffs’ attorneys cannot and will not discuss any aspect of this matter subject to the signed Protective Order – indicates that OPD commanders intentionally made “unfounded” findings in the IAD case pertaining to allegations that Officer Tran bribed a witness for false testimony. An “unfounded” determination indicates a determination that the underlying misconduct did not happen. Given that Officer Tran is currently being prosecuted for perjury and bribery, the “unfounded” determination appears to be wholly inappropriate or, worse, intentionally obfuscatory. It is shocking that OPD’s Internal Affairs investigators determined it was acceptable for a homicide detective to provide undocumented cash payments to witnesses, especially as OPD Departmental General Order O-4 prohibited this practice at the time. The very fact that the Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 14 of 71 1 2
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CPRA investigation of this matter sustained officers for truthfulness and obstructing the internal affairs process (among other violations) attests to pervasive, systemic failures within IAD. Once again, Internal Affairs investigators and OPD commanders have been faulted, and disciplined, for manipulating an internal investigation.
This massive failure after over 20 YEARS of monitoring is intolerable.
Unless the OPD sets forth a concrete plan for remedying this problem that is approved by the plaintiffs’ attorneys, the monitor and the court, plaintiffs’ attorneys will consider another motion to place the Oakland Police Department in Receivership such as the one approved in significant part (Dkt. 885, incorporated as Exhibit 7) by the Court on December 12, 2012 that created the Compliance Director.
The court should also consider making one high ranking supervisor specifically responsible for the implementation of this plan by the OPD. This command staff member should provide regular reports to the court at future court appearances and reports to the Monitor/Compliance Director.4
When the NSA started, there were two major problems: (1) the wanton beating and arrest of citizens, largely but not exclusively African Americans, and (2) the failure of the Oakland Police Department to police itself in a competent, fair, and complete manner.
In fact, there has been significant progress in the first category; plaintiffs’ attorneys, who had at least one wanton “beat up” case without cause nearly every week, have seen such cases greatly reduced to the point where these cases are extremely rare. This proves that the Oakland Police Department is capable of significant change if the will to change and to discipline those officers who do not change is there. It also proves that most patrol officers in Oakland are doing an outstanding job despite budget shortfalls, significant crime, and other problems they have to face every day.
4 https://ecf.cand.uscourts.gov/doc1/035110051505
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However, this recent massive corruption event proves that the Oakland Police Department’s attempts to police itself in a competent, fair and complete manner have failed. At this late date in the NSA, drastic action is necessary to prevent the NSA from going on for many more years. The Oakland Police Department command staff has proven that they pay lip service to the NSA and continue with “business as usual” despite court oversight. Plaintiffs’ attorneys look to the court and the Monitor/Compliance Director to implement a plan where further transgressions of this type will be severely punished, even more so than has already taken in place. In addition, as discussed above, an effective action plan is necessary to ensure that this behavior does not repeat itself. And there must be severe consequences for supervisors if this action plan is not effectively implemented.
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 Eighth Sustainability Period Report.
Recent Sustainability Reports have highlighted 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). The IMT has noted the Department’s efforts to address disparities within the Department “through both analysis and policy”, but that disparities nevertheless Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 16 of 71 1 2
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“continue within the Department.” (Sixth Sustainability Period Report, p. 17). The most recent Eighth, Sustainability Report lauds the Department’s “effort to assess the nature of systems and practices that have contributed to a disparate environment”, but cautions that these “efforts continue to be more in the form of studies and analyses instead of real cultural change.” (8th Sustainability Report, p. 15),
Last year, 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”, incorporated as Exhibit 4). 5 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).” (Exhibit 4, p. 3).
According to the supplemental report, there were 112 allegations for 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:
5 https://cao-94612.s3.us-west-2.amazonaws.com/documents/2022-Internal- Investigation-Outcome-and-Discipline-Report-Follow-Up.pdf Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 17 of 71 1 2
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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.” (Exhibit 4, p. 6).
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:
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(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 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. (Exhibit 4, p. 14)
The disparities in OPD’s internal discipline system described in the FTARC Report and noted by the IMT do not meet the standards mandated by Task 45 of the Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 19 of 71 1 2
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NSA. OPD cannot be in compliance with Task 45 while it imposes inconsistent discipline.
The IMT rightly emphasizes the importance of sustainable cultural change in the 8th Sustainability Period Report: although policy and analyses are a necessary prerequisite, they are not, by and of themselves, sufficient for compliance with Task
45. Task 45 requires that discipline is imposed in a fair and consistent manner, not just that infrastructure and policies for achieving that goal at a future date are in place. Plaintiffs’ attorneys therefore agree with the IMT that OPD is not currently in compliance with Task 45.
Conclusion
Although the City of Oakland continues to represent that it is on the cusp of full compliance with the NSA, OPD has not yet achieved compliance with Task 45, and it has once again fallen out of compliance with Task 5. The Department is, by the numbers, farther away from full NSA compliance right now than it was earlier this year.
The most recent Internal Affairs fiasco regarding Officer Tran is not unique.
Time and time again, the Department’s ability to investigate itself and its officers fails to meet the standards mandated by the NSA. Such massive failures go all the way back to the Riders case itself, where hundreds of African Americans had drugs planted on them and were jailed for an aggregate of 40 years for crimes they did not commit. This was followed by a virtually unsupervised officer molesting dozens of Asian women who were stopped by him for no reason; warrants based on false information and perjury that sent dozens of people to jail; the widespread practice of strip searching African American men in public; the travesty of Occupy Oakland where innocent people were arrested shot and beaten; two cases of successful class actions for violations of Oakland’s crowd control policy where hundreds of people were sent to jail for no reason; and significant Oakland police misconduct in demonstrations over the murder of George Floyd. The significant feature of these Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 20 of 71 1 2
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and many other cases is that every one of them occurred during the NSA where Oakland Police were allegedly trying to reform themselves and change illegal practices.
There is still more.
In 2017, The Swanson Report on the City of Oakland’s Response to Allegations of Officer Sexual Misconduct (Dkt. 1144, attached as Exhibit 6 determined that “OPD’s initial investigation of [that] case – both as a criminal matter and an internal affairs matter – was seriously deficient.” (Dkt. 1144, p. 3).
Not only was the investigation deemed “inadequate” but the “deficiencies of the investigation were shielded from review” and “the tone at the top [of OPD]… sent an unmistakable signal that this case was not a priority.” (Dkt. 1144, p. 4). The draft Report of Investigation (ROI) circulated by Internal Affairs Investigators “did not accurately reflect interviews” (Dkt. 1144, p. 20), and “IAD did not properly investigate its investigator.” Dkt. (1144, p. 23). Throughout the Swanson Report, various OPD investigators, supervisors and commanders were singled out as having conducted wholly inadequate investigations. 6
In August 2020, the IMT released “The March 11, 2018 Shooting of Joshua Pawlik by Oakland Police Officers: A Report by the Monitor/Compliance Director.” This document detailed staggering “incompetence, deception, and indifference.” (Exhibit 8, Dkt. 1388, page 50)) and listed a cascading series of leadership failure, from the highest levels of elected City officials, including the Mayor, to the Chief of Police and the Department itself. 7
According to this report, the then-Chief pre-judged the shooting of Mr. Pawlik and concluded that it was justified even before investigations were complete. The report found that the Chief “prematurely assessed the shooting on the evening of its occurrence, when she told the Monitor that Mr. Pawlik had ‘pointed’ a firearm at
6 https://ecf.cand.uscourts.gov/doc1/035115588002
7 (https://ecf.cand.uscourts.gov/doc1/035119611500
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the officers, and that the shooting ‘looks good.’ Her expressed predispositions of that evening never wavered, even as the investigations moved forward”. (Exhibit 8, Summary finding #2, p. 49). Further, “the Department attempted to provide a justification for the shooting through its initial press releases describing the incident.” (Exhibit 8, Summary finding #3, p. 49), and “the Chief also sought early opinions, prior to the completion of the investigations, from at least 15 others, including sworn and nonsworn personnel, in order to quickly vindicate the officers and avoid placing them on administrative leave.” (Exhibit 8, Summary finding #10, p. 49)
The Monitor also determined that the then-Chief took affirmative steps to manipulate the investigation process by discussing her views of the shooting with prospective Executive Force Review Board candidates. Specifically, the Monitor found that Chief Kirkpatrick “acted improperly” and “corrupted that very process.” (Exhibit 8, Dkt. 1388, page 50)
On January 14, 2021, this Court issued an Order regarding Internal Affairs Case No. 21-0028 involving “serious matters that go to the heart of this case – the culture of the Oakland Police Department and the efficacy of internal oversight mechanisms within the Department, which were the primary reason for the imposition of the NSA in the first place.” (Dkt. 1419, page 1). This pertained to the public disclosure that current and former OPD employees, as well as other members of Bay Area law enforcement organizations, were active participants on a racist, sexist Instagram page with the online handle “@crimereductionteam”.
Many of the “@crimereductionteam” posts mocked OPD policies regarding use of force reporting and police brutality, while others were overtly racist and misogynistic. Although there was a Department-wide email in September 2020 referencing this social media account, OPD did not initiate an Internal Affairs investigation regarding the “@crimereductionteam” account until Plaintiffs’ attorneys contacted the then-Chief in January 2021. Plaintiffs’ attorneys noted, at Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 22 of 71 1 2
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the time, that OPD’s Internal Affairs Department and command staff had once again missed an opportunity to proactively police itself.
The Clarence Dyer Report, which was published at almost exactly the same time that OPD was first notified about the allegations against Officer Tran by then- District Attorney Nancy O’Malley, highlighted “procedural irregularities and possible violations of OPD policy committed by OPD members who conducted the initial criminal and administrative investigations” (Clarence Dyer, & Cohen Report, p. 8), and concluded that:
During the course of the three confidential Internal Affairs Division investigations referred to above – one for the vehicle collision incident, the second for the elevator discharge incident, and the third for the investigation into the Department’s handling of the elevator discharge – outside investigators encountered multiple deficiencies in process and policy that undermined the full and complete discovery of the facts. While some of these deficiencies stem from gaps in Department policies, other deficiencies flowed from the Department’s failure to follow or implement existing Department policies. Most disturbingly, some of the deficits appear to stem from a failure of leadership and a lack of commitment to hold members of the Oakland Police Department accountable for violations of its own rules… These investigations revealed issues and shortcomings that go beyond the conduct of individual officers to the very question of whether the Oakland Police Department is capable of
policing itself and effectively holding its own officers accountable for misconduct.
(Clarence Dyer, & Cohen Report, p. 9, emphasis NOT original)
The Clarence Dyer Report also noted that Internal Affairs Division investigations “were dogged by a lack of forthrightness by multiple members, both subjects and witnesses, that betrayed a lack of commitment to the pursuit of truth by the Internal Affairs process.” (Clarence Dyer, & Cohen Report, p. 10). The report also described “multiple failures, at every level, to hold this sergeant responsible, [that] belie OPD’s stated position that it can police itself and hold its members accountable for misconduct. Instead, investigators were left with the Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 23 of 71 1 2
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impression that the system is designed not to uncover the truth and hold those who commit misconduct to account, but instead to find ways to minimize misconduct such that OPD members are able to avoid serious discipline.” (Dkt. 1564, p. 16).
The Clarence Dyer report also found that discipline was imposed without a full and complete review of the facts uncovered by the Internal Affairs Division, a breach of the terms of Task 45. The report concluded that the then-Chief of Police, LeRonne Armstrong, did not read Reports of Investigation before signing them, and detailed scenarios where Internal Affairs commanders could demand revisions to a Report of Investigation (ROI) over the objections of subordinates without any documentation about such a directive.
Following each of these Internal Affairs-related fiascos, the Department and City leadership promised policy and procedure changes to ensure these failures would not recur. However, we now know that – just as OPD and the City of Oakland were touting the implementation of reforms suggested by the Court in the wake of the Clarence Dyer Report, at least three OPD officers obstructed the internal affairs process into the bribery investigation of an OPD homicide investigator, and multiple Chiefs “failed to ensure OPD’s internal affairs division rigorously and fairly examined the accusations against [Officer Phong Tran].” (Exhibit 3, p. 1).
OPD’s handling of its internal affairs investigation of Officer Tran, as detailed by the Oaklandside and other outlets, fits a pattern: pervasive systemic failures, as well as individual failures by high ranking OPD personnel, that are wholly incompatible with the robust Internal Affairs process required by Task 5 of the NSA, as well as the goal of fair and transparent discipline within the Department that is mandated by Task 45.
Tasks 5 and 45 are foundational to the NSA, and to constitutional policing.
OPD has repeatedly demonstrated that it cannot perform competent Internal Affairs Investigations or discipline its own officers fairly. Plaintiffs’ attorneys will Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 24 of 71 1 2
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never agree that the OPD has attained compliance if members of the Command Staff attempt to hide misconduct from appropriate supervisors (including the Police Commission), and/or impose inconsistent discipline based on who you know, your race, or what rank you have. These are concrete, incontrovertible breaches of the letter of NSA Tasks 5 and 45, respectively.
The recently appointed Chief of Police, Floyd Mitchell, has publicly acknowledged that changes are necessary. According to an August 16, 2024 KQED news article (attached hereto as Plaintiffs’ Exhibit 5), 8 Chief Mitchell says that OPD is once again reviewing its Internal Affairs policies. The relevant portion of this article is embedded, below:
There is a line where civil rights violations, and their cover-up by many members of the command staff, become too numerous to be acceptable. Such is the case here, with the Oakland Police Department.
The NSA was supposed to last 5 years, with a maximum of 7 years. The OPD is now in its 22nd year. When the OPD has totally failed to comply with the NSA under a system where the Monitor only has the power to determine whether a task
8 https://www.kqed.org/news/12000598/oakland-police-say-violent-crime-is-down- but-guns-are-an-issue-in-west-oakland
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was in compliance or not in compliance, Plaintiffs’ attorney believed that the OPD would never attain under compliance unless the Monitor position was greatly strengthened. Accordingly, we filed a motion to place the OPD in Receivership.
That motion was resolved by the Court’s order of December 12, 2012 which created the position of Compliance Director. (Dkt. 885, Exhibit 7) The Compliance Director was given greatly expanded powers including the right to create policies, demote Deputy Chiefs and fire the Chief of Police. The OPD attained compliance in multiple tasks and was briefly in total compliance which triggered the current Sustainability Period.
The Sustainability Period has dragged on for many years. The Oakland Police Department has not attained total compliance for many years. It is clear that a drastic solution is needed.
Over the years, we have suggested a number of ways the OPD can attain total compliance and sustain it for one year as required by the NSA. We believe that constitutional policing is the best policing and the best way to fight crime.
The NSA was drafted by two members appointed by the City of Oakland.
Our two appointees included a retired San Jose Police Officer and an author of numerous prison regulations.
When the NSA was approved by Judge Henderson, we appeared at a press conference with city officials, including the Oakland Chief of Police. There was no discussion that compliance was impossible to attain.
It is clear from the Tran incident that compliance is not an important enough goal for the City of Oakland and the Oakland Police Department. If a single member of the command staff had spoken out when the Tran incident was taking place and the OPD has issued appropriate discipline and training, we might very well have been celebrating the end of the NSA as opposed to harshly criticizing the defendants which we have done here.
The point is that the NSA must end successfully and must become a Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 26 of 71 1 2
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greater priority for the City of Oakland and the Oakland Police Department.
It is clear that Court and IMT oversight is still required in this matter. But something more than the current oversight is required in order for the NSA to ever end. Having individual supervisors be in charge of the completion of a task should be reinstated. In the case of Task 5, it is suggested that the Task be disaggregated and a command staff member should be responsible for each delineated section of Task 5 with the Chief being responsible for the whole task. And there should be consequences if command staff cannot attain compliance. We have met a number of highly qualified, competent members of this Department, and if the current command staff cannot attain compliance, these other leaders should be given a chance to make a difference.
The OPD is not in compliance with the NSA. Plaintiffs’ attorneys therefore urge the Court to modify the Sustainability Period until, at the very least, OPD regains full compliance with each and every NSA Task and there be a one year sustainability period where every task remains in compliance.
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THE CITY’S STATEMENT
OVERVIEW
Although the City has experienced a setback, it is important to keep things in perspective. We must not lose sight of the incredible progress the Department has made and how its evolution has undeniably transformed policing in the City of Oakland. The City has sustained compliance on 49 of the 51 NSA tasks for more than two full years.9 The Department’s culture has evolved since the inception of the NSA. Its positive transformation is most evident in the Department’s stop data, risk management meetings, and use of force and force review. The Department’s embodiment of the spirit of the NSA is exhibited by the examples discussed herein.
The Department has meaningfully reduced racial disparity in policing. Officers use appropriate force and accurately report force, and force review is consistently thorough. The Department has identified and fixed observed disparity in internal investigation outcomes. Diversity has increased among the Department’s sworn ranks. Internal investigations are timely completed. As the City previously reported, other law enforcement agencies strive to follow the Department’s example.
Dkt. 1467, Joint Case Mgmt. Statement 52 (Aug. 25, 2021).
The City understands, however, that it must show that it can similarly sustain substantial compliance on tasks involving internal investigations. In order to allow the parties, the Monitoring Team, and stakeholders to focus on Tasks 5 and 45, the City asks that the Court move Tasks 24 and 25 (force and force review), to the inactive task list and discontinue affirmative ongoing assessment of these tasks by the Monitoring Team.
The City does not disagree that there were failures in a Departmental internal investigation in 2022 and early 2023 which led to the Monitor’s recent Task 5 out-of-compliance assessment. But the City urges the Court to consider the timing and context of the investigatory failures. The failures occurred before or shortly
9 “Task 52” contains “Housekeeping Provisions.”
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after the January 2023 publication of the independent investigator’s recommendations to improve internal investigations. Dkt. 1564, Order Re Conclusions and Recommendations Re Vehicle Collision and Elevator Discharge Incidents (Jan. 18, 2023). The failures occurred prior to the City’s April 2023 informal implementation of key reforms to immediately shore up internal investigations processes. Dkt. 1622, Joint Case Mgmt. Statement 16-17 (Jan. 19, 2024). And the failures occurred prior to the City’s November 2023 formal implementation of new and revised policies. Id. at 17-20. The City’s work in 2023 significantly improved the Department’s internal investigations processes. The City, including the Department’s new Chief and leadership team, are focused on ensuring that Department members follow policy and best practices to ensure consistent, quality investigations. The City also understands it must address cultural aspects of the Department’s internal investigation system that have enabled or fostered similar types of failures in the past several years. The City is hopeful that this awareness and the improvements to Department policy and practice have resolved the issues keeping it from sustaining compliance on the remaining tasks. The City understands that because internal investigation failures have in many cases been revealed many months after they occurred, more time is necessary before we can assess the results of these improvements with confidence. The City requests, however, that the Court remain open to considering giving the City credit for compliance for at least some of the time after April 2023 assuming no additional similar issues arise.
In May 2024 the City welcomed Chief of Police Floyd Mitchell. Chief Mitchell is a veteran of the United States Air Force who began his law enforcement career as a patrol officer with the Kansas City, Missouri Police Department. After 25 years serving Kansas City, Chief Mitchell became the Chief of Police in Temple, Texas.
Chief Mitchell’s most recent post prior to joining Oakland was as the Chief of Police in Lubbock, Texas, where he served from 2019 to late 2023. Chief Mitchell’s changes Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 29 of 71 1 2
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to command staff and updated list of Department commanders responsible for task compliance is attached. Ex. A, Oakland Police Department NSA Task Compliance Responsibility Chart (Aug. 2024).
In this status report, the City provides an update on its most significant accomplishments and acknowledges the important work that remains to be completed.
I. THE CITY’S SIGNIFICANT ACHIEVEMENTS DEMONSTRATE THE
DEPARTMENT HAS EMBRACED THE SPIRIT OF THE NSA
At the last Court hearing, the Court asked for the City “to update the stop data – historic stop data as well as other meaningful metrics that show how the OPD has embraced the spirit as well as the letter of the NSA.” Dkt. 1630, Jan. 23, 2024 Court Tr. 6:8-11. The Department’s achievements are numerous, remarkable, and reflective of sustained cultural values consistent with the spirit of the NSA.
A. The Department has meaningfully reduced racial disparity in stops.
The City remains perpetually aware that “the nut of this case remains what it was in the beginning, which is racial disparity.” Dkt. 1404, Sept. 22, 2020 Court Tr. 3:22-23. The Department is and has been particularly concerned with the historical overrepresentation of Black and African American individuals detained in police stops. See, e.g., https://www.ppic.org/publication/racial disparities-in-law-enforcement-stops/ (last visited Aug. 22, 2024). The Department’s policy changes and command directives aimed to reduce the types of stops where officers have a greater amount of discretion have yielded a significant and sustained reduction in African American stops. In 2017, 61% of non-dispatch stops were stops of African Americans. In 2023, 41% of non-dispatch stops were of African Americans—a 20% rate reduction. See Fig. 1. When intelligence-led stops are removed, the Department’s African American non-dispatch stop rate dropped to 38% in 2023. See OPD 2023 Stop Data and Reports,
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https://www.oaklandca.gov/resources/2023-stop-data-and-reports (last visited Aug 16, 2024).
Fig. 1
The impact of these metrics on African American individuals living in or visiting
Oakland is incredibly significant. The stop rate reduction translates into 15,000-
17,000 fewer non-dispatch stops of African Americans each year. See Fig. 2.
While the Department has reduced its African American non-dispatch stop rate, its Hispanic non-dispatch stop rate has risen. Fig 1. The Department has continued to track Hispanic stop rates and routinely discusses racial disparities in its stop data as part of Area, Bureau, and Citywide risk management meetings.
Although the Hispanic non-dispatch stop rate has risen, the Department’s decreased footprint has resulted in 3,500-5,500 fewer non-dispatch stops of Hispanics annually. Fig. 2.
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Fig. 2
The “stark racial inequities” between African American and white individuals in the criminal justice system, however, warrant a particular and enduring focus on African American stop disparities. According to a report published by the Public Policy Institute of California based on 2019 Racial and Identity Profiling Act (RIPA) data, African American or Black residents are considerably overrepresented in police stops statewide, while white and Hispanic residents are represented fairly proportionally in stops compared with their state population share. Magnus Lofstrom, et al., Racial Disparities in Law Enforcement Stops, 6-7 (2021), https://www.ppic.org/publication/racial-disparities-in-law-enforcement-stops/ (last visited Jan. 9, 2023) (graphic reprinted below in Fig. 3). ///
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Fig. 3.
B. The Department has meaningfully reduced racial disparity in handcuffing.
In the last decade, the Department has substantially reduced its overall handcuffing rate as well as the racial disparity in its handcuffing rates. See Table 1.
African Americans have historically been handcuffed at disproportionately higher rates compared to other racial groups. Stanford prepared a frequently referenced report on post-stop outcomes—handcuffing, search, and arrest—using the Department’s data for stops occurring between April 1, 2013 and April 30, 2014.
See Data for Change, https://sparq.stanford.edu/data-for-change (2016) (last visited Aug. 14, 2024).
Between April 1, 2013 and April 30, 2014, the Department’s non-dispatch stop handcuffing rate was 34.6% for African Americans, 21.5% for Hispanics, and Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 33 of 71 1 2
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12.5% for whites. See id. at 15 & 92. In 2023 the handcuffing rate was 28% for African Americans, 18% for Hispanics, and 17% for whites. See 2023 OPD Stop Data and Reports, supra. Thus, the disparity in handcuffing rates between African American and white individuals in all non-dispatch stops shrank from 22 percentage points in 2013-2014 to 11 in 2023. See Table 1.
Table 1: OPD Handcuffing Rates by Race
In its report, Stanford also calculated the handcuffing rate in non-dispatch stops that did not result in arrest. Because arrest tends to trigger automatic handcuffing, arrest may provide a race-neutral reason for an officer’s decision to handcuff. See Data for Change, supra at 92 & 94. Therefore, handcuffing rates excluding stops resulting in arrest provide a fairer comparison of handcuffing rates by race.
Stanford found that between April 1, 2013, and April 30, 2014, the Department’s handcuffing rate in non-dispatch stops, excluding stops that resulted
10 At the time of Stanford’s report the Department did not code stops as intelligence- led versus non-intelligence-led.
11 Data for Change, supra at 263.
12 Data for Change, supra at 94.
All Non-Dispatch
Stops
Non-Dispatch
Stops Excluding
Arrests
Non-Dispatch,
Non-Intel Led
Stops, Excluding
Arrests10
2013-2014
(Stanford)11
2023 2013-2014
(Stanford)12
2023 2023
Race
Black or
African
American
34.6% 28% 21% 13% 5%
Hispanic 21.5% 18% 12.1% 5% 2%
White 12.5% 17% 5.7% 7% 2%
Asian 14% 10% 6.7% 4% 2%
Other 15.1% 16% 7.5% 6% 2%
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in arrest, was 21% for African Americans, 12.1% for Hispanics, and 5.7% for whites.
See Table 1. By comparison, in 2023 the Department’s rate was 13% for African Americans, 5% for Hispanics, and 7% for whites.13 Id. Using this metric, the disparity in handcuffing rates between African American and white individuals shrank from 15.3 percentage points in 2013-2014 to 6 in 2023.
When intelligence-led stops and arrests are excluded, 2023 African American and white handcuffing rates are within 3 percentage points: the rate is 5% for African Americans, 2% for Hispanics, and 2% for whites (2023 non-dispatch, non- intelligence-led stop handcuffing rate, excluding arrest).
Based on the foregoing data, the Department has significantly reduced the racial disparity in handcuffing observed by Stanford in 2013-2014.
C. The Department’s consistent application of policies, including its policy limiting parole and probation searches, contributes to the reduction in disparity.
In 2019, the Department enacted Department General Order (DGO) R-02:
Searches of Individuals on Probation, Parole, Mandatory Supervision and Post- Release Community Supervision (PRCS). In basic terms, pursuant to DGO R-02, members may not inquire about supervision status at the beginning of a police interaction unless there is an immediate threat to safety. DGO R-02 at 2, https://public.powerdms.com/OAKLAND/documents/1800988 (last visited Aug. 24, 2024). Once officers know of and verify a search condition, officers may invoke the search condition if a supervisee is on supervision for a “violent offense” as defined by the policy. Id. at 4.Officers may only invoke the search condition on individuals on supervision for a non-violent offense (an offense where violence or use of a weapon was not a factor) when there are articulable facts that demonstrate that the supervisee is an imminent threat to safety or connected to criminal activity. Id. at 3.
Officers may not invoke the search condition for a non-violent offender in any stop
13 This calculation includes intelligence-led stops. The data set is the same as was used for the February 2024 Citywide Risk Management Meeting.
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for a traffic infraction unless there are articulable facts that demonstrate that the supervisee is an imminent threat to safety or connected to criminal activity. Id. at 4.
If a cursory search is justified, however, officers may invoke a search condition to conduct a full search regardless of the nature of the underlying conviction. Id. at 4.
Officers are required to document in police reports facts demonstrating adherence to the policy. Id.
Following implementation of DGO R-02 in October 2019, the number of searches justified solely based on a condition of supervision shrank drastically.
Table 2: OPD Stop Data—Parole/Probation Searches14
Year Total #
Searches
# Searches Where
Only
Documented Stop
Data Basis is
Search Condition
# Searches Where Only Documented Stop
Data Basis is Search Condition
Black or
African
American
Hispanic White Asian Other
2014 9309 3301* (35% of total) 2637 386 151 98 29
2015 11519 3857* 3101 512 121 82 41
2016 11668 3855* 3171 450 123 53 58
2017 11947 3936* 3151 525 134 71 55
2018 7254 1836* 1443 244 64 39 46
2019 5468 567 (10% of total) 431 81 20 31 4
2020 11501 218 (2% of total) 148 39 14 11 6
2021 8161 67 41 17 4 4 1
2022 8210 77 52 20 3 0 2
2023 6899 42 (0.6% of total) 29 9 2 0 2
In 2023, searches justified solely by conditions of supervision constituted just over one-half of one percent of searches. Of the 42 searches justified solely by a search condition to supervision, 29 involved dispatch and/or intelligence-led stops.
This is significant because dispatch and intelligence-led stops involve less officer
14 All source data available at https://www.oaklandca.gov/resources/stop-data (last visited Aug. 16, 2024).
*From 2014-2018 stop data entry only allowed officers to select a single justification for a search. Beginning in 2019, stop data allows officers to enter multiple justifications for a search. In addition, while this chart includes data from all searches reported in the stop data by corresponding year, from 2014-2018 stop data forms were only required for non-dispatch stops. Beginning in 2019 stop data forms were required for all stops—dispatch and non-dispatch.
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discretion. The 2023 data stands in stark contrast to 2014 when more than one- third of the Department’s searches were justified by a search condition of supervision. To be fair, prior to 2019 officers were permitted to enter only a single, primary justification for a search, so it is likely that many of the parole and probation searches between 2014 and 2018 had additional justifications not observable based on the data alone. The 2019 and 2020 data contrast is probably most meaningful because DGO R-02 was published in the last quarter of 2019. In both years (2019 and 2020) officers were permitted to enter multiple reasons justifying a search. Therefore, 2020 reflects the first full year of data after DGO R- 02 was implemented. The difference between these two years is dramatic. In 2019, searches justified solely by conditions of supervision constituted 10% of searches.
This dropped to just 2% in 2020.
The majority of people officers search based solely on a condition of supervision are African American. This is likely driven at least in part by the fact that African Americans have a higher rate of parole, probation or similar supervisory status. See e.g., Horowitz, J. & Utada, C., Community Supervision Marked by Racial and Gender Disparities (Dec. 6, 2018), available at https://www.pewtrusts.org/en/research-and-analysis/articles/2018/12/06/community- supervision-marked-by-racial-and-gender-disparities (last visited Aug. 16, 2024).
The racial gap resembles that in incarceration: Black adults are about 3.5 times as likely as whites to be supervised, and although Black and African American individuals make up 13 percent of the U.S. adult population, they account for 30 percent of those on probation, parole, or similar supervisory status. Id. Although the data does not indicate disproportionate representation of Hispanics on supervision, many states do not report ethnicity data so Hispanics under supervision are likely undercounted. Id. For these reasons, this policy change has had the greatest impact on the African American population and has likely contributed to the reduction in racial disparity in searches and stop results, including handcuffing.
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D. Officers use and report force appropriately and Department review is consistently thorough.
Throughout all eight quarters of the NSA Sustainability Period, the Department has demonstrated consistently excellent internal command oversight of force and force reporting. The Department’s dependability inspires confidence in the Department’s continued internal monitoring of force-related tasks independent of the Monitoring Team’s oversight. See Dkt. 1656, Eighth NSA Sustainability Period Report of the Independent Monitor 14 (Aug. 2, 2024), Dkt. 1637, Seventh NSA Sustainability Period Report of the Independent Monitor 15 (Apr. 16. 2024) (“We have found that this additional oversight and review has continued to identify and properly address concerns prior to our Team identifying them.”) Based on the Department’s demonstrated ability over the last two-and-a-half years to effectively monitor force and reporting on its own, the City asks that the Court end affirmative monitoring of Tasks 24 and 25.
The Monitoring Team filed two reports since the last Court hearing. The reports included assessments of force incidents that occurred between November 2023 and March 2024. Both reports reiterated positive observations noted in previous reports. In addition to sergeants and the chain of command identifying and appropriately addressing any force and force reporting issues (e.g., delayed body camera activations or boilerplate language in reports), there were also fewer deficiencies identified and “ongoing positive trends” including “improved planning and communications, more detailed [use of force] reports, more positive communications with the public, [and] improved de-escalation techniques.” Eighth Period Report, supra at 9; Seventh Period Report, supra at 10.
The Department’s consistent, effective review has resulted in better force reporting and reviews at every level of the organization as well as improvements in patrol officers’ compliance with body-camera policy, use of de-escalation techniques, reporting writing, and community interactions.
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The Department’s most recent accomplishments involving force and force reporting include the following:
• All uses of force reviewed were appropriately reported (Eighth Period Report, supra at 10; Seventh Period Report, supra at 12);
• The few concerns with announcement of police and use of inappropriate language or profanity were all identified and addressed by a reviewing supervisor or the use of force command review team (Eighth Period Report, supra at 8, Seventh Period Report, supra at 10);
• The use of force command team continues to not only review cases for use of force compliance but addresses any other concerns identified with the entirety of each incident (id.);
• There were only two delayed body-worn camera activations and four other “concerns with [ ] activations.” The delays and other concerns were all appropriately addressed by the Department (id.);
• There were no instances of officers using boilerplate or “pat” language (Eighth Period Report, supra at 13, Seventh Period Report, supra at 15);
• There were no instances where force was not deescalated or stopped reasonably when resistance decreased (Eighth Period Report, supra at 14, Seventh Period Report, supra at 15);
• There were no instances where officers could have made additional efforts to explain to subjects being detained why the detention was occurring prior to using force (id.);
• There were several instances where officers used commendable patience and empathy when dealing with members of the public who were being detained (id.);
• There have been no concerns identified with the use of Tasers on fleeing suspects since September 2022 (Eighth Period Report, supra at 14, Seventh Period Report, supra at 16).
The Department’s successful quality control mechanism has improved force review, reporting and, ultimately, officers’ conduct. The City is confident that the Department’s command team review will continue to result in additional tangible improvements.
///
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E. The Department Uses Deadly Force Less Frequently than Other California Police Departments and Departments in Cities with Similar Violent Crime Rates.
The parties previously shared that from 2013 to 2019, the Department averaged the fewest officer-involved shootings per number of arrests among similarly sized cities. See Fig. 4, Police Shooting Rates in Cities, chart graphic reprinted from https://policescorecard.org/findings#clear-pattern (last visited Aug. 16, 2024).15
Fig. 4
A recent analysis of deadly force data in the 100 largest police departments in the
15 The Police Scorecard is the first nationwide public evaluation of policing in the United States. The Scorecard calculates levels of police violence, accountability, racial bias and other policing outcomes for over 16,000 municipal and county law enforcement agencies, covering nearly 100% of the U.S. population. The Police Scorecard integrates data on police arrests, personnel, funding, incarceration rates and homicide clearance rates from official federal and state databases such as the FBI Uniform Crime Report (UCR), the Bureau of Justice Statistics’ Annual Survey of Jails, the U.S. Census Bureau’s Survey of State and Local Government Finances and the California Department of Justice's OpenJustice database. See https://policescorecard.org/about.
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country ranks Oakland 84th for the average number of annual police deadly force fatalities between 2013 and July 31, 2024—only 16 agencies had a lower annual average rate. See https://mappingpoliceviolence.us/cities (last visited Aug. 11, 2024).16 Eighty-three agencies had a higher rate. In California, only San Jose, Chula Vista, and Irvine departments had a lower rate than Oakland. See id. Most significantly, for the ten agencies with the highest violent crime rates Oakland ranked last with the lowest annual average rate. See Fig. 5, Average Police Killings Rate per 1 million people, 2013-2024, chart graphic reprinted from https://mappingpoliceviolence.us/cities (last visited Aug. 11, 2024).
Fig. 5
16Rates calculated using data from Mapping Police Violence, along with US Census population data by race and crime data from the FBI Uniform Crime Reports. Police departments included in this analysis reflect the police forces of the 100 largest U.S. cities. See https://mappingpoliceviolence.us/aboutthedata (last visited Aug. 11, 2024).
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F. The Department Has Increased Diversity in its Ranks.
The Department continues its strategic outreach efforts to attract and recruit officers who reflect the diversity of Oakland, racially and otherwise, and who live in or have meaningful ties to the City. See Jan. 26, 2024 SUPPLEMENTAL- OPD Biannual Staffing Report, available at
https://oakland.legistar.com/Legislation.aspx (File # 23-0838) (last visited Aug. 11, 2024). The Department’s efforts have resulted in greater diversity and an increase in officers who live in or have meaningful ties to Oakland.
1. Recent Academy Demographics.
In June 2024, the Department commenced its 194th Basic Academy. Thirty- six police officer trainees entered the 194th Academy. There are currently 28 trainees remaining in the academy class. Tables 3 and 3.1 reflect the demographics of the police officer trainees currently enrolled in the 194th Academy. Women make up 29% of the entering academy class. More than 80% of the entering class is non- white. Six of the trainees are Oakland residents (21%).
Table 3: OPD’s 194th Basic Academy Demographics (Aug. 2024)
Gender Race/Ethnicity Residency Language Education
Female 8 Asian 4 Oakland 6 Spanish 7 High School 5
Male 20
Black or
African
American
2 Other 22 Arabic 1 Some College 13
Hispanic 11 Bosnian 1 AA/AS 4
White or
Caucasian 5 Korean 1 BA/BS 6
Other 6 Hmong 1
Total 28 Total 28 Total 28 Total 11 Total 28
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Table 3.1: Race/Ethnicity & Gender in OPD’s 194th Academy (Aug. 2024)
2. Department Demographics Over Time.
The Department has significantly increased non-white representation among its sworn ranks in the past decade. Between 2016 and 2020, the Department was losing approximately 0.5% of its Black officers each year. See Figs. 6 & 7, reprinted from Quarterly Police Staffing Report at 5 (Aug. 28, 2019), and Jan. 26, 2024 SUPPLEMENTAL-OPD Biannual Staffing Report, supra at 15. Since 2020, the Department has increased Black officers in its ranks by an average of more than
1.5% each year. The Department’s current percentage of Black officers closely mirrors representation in Oakland’s population. See Fig. 7.
Fig. 6
///
Race/Ethnicity Female Male
Asian 2 2
Black or African American 1 1
Hispanic 2 9
White or Caucasian 2 3
Other 1 5
Total 8 20
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Fig. 7
Additionally, as the national percentage of female sworn officers decreased slightly between 2007 and 2022, the Department’s percentage of sworn women has increased. See Fig. 8, data from Nov. 7, 2018 Monthly Police Staffing Report 5, available at oakland.legistar.com, File No. 18-1164 (last visited Aug. 27, 2024), and Jan. 26, 2024 Biannual Staffing Report, supra at 15.
Fig. 8
G. The Department Has Met Internal Affairs Investigation Timelines for More than Two Full Years.
In each of the eight quarters of the NSA Sustainability Period the Department has met the timeliness standard imposed by its own internal policy.
The Department accomplished this feat despite significant disruption caused by a ransomware attack, despite a voluminous and complex caseload.
H. The Department Resolved the Disparity Observed in 2022 Internal Affairs Case Outcomes.
The Department’s annual policy-mandated Internal Affairs Investigation Outcome and Discipline Analyses Report revealed no statistical evidence of disparity in the treatment of non-white sworn members, or by rank or gender, when Gender National
Percentage
2007
National
Percentage
2022
OPD 2015
OPD 2023
Female 14.3% 13.94% 11.9% 14.59%
Male 85.7% 86.06% 88.1% 85.41%
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looking at allegations per case, sustained findings, and discipline in 2023. See 2023 Internal Investigation Outcome and Discipline Report,
https://www.oaklandca.gov/documents/2023-internal-investigation-outcome-and- discipline-report-2 (last visited Aug. 11, 2024).
Significantly, the disparity observed in 2022—Black officers sustained at a higher rate for Failure to Accept or Refer Complaints (Unintentional)—was not observed in the 2023 data. The disparity observed in 2022 is resolved. Whether the issue resolved because 2022 was an anomaly, the Department’s awareness of the issue fixed the problem, the Department’s changes to policy fixed the problem, or some combination of those factors, the requirement that the Department not only identify and address the problem but “fix[] the problem” has been fulfilled.
See Dkt. 1630, Jan. 23, 2024 Court Tr. 5:3-4 (“But to be in compliance with task 45 means fixing the problem. That's what is required.”)
II. THE DEPARTMENT’S INTERNAL INVESTIGATIONS HAVE
IMPROVED SINCE EARLY 2023
The City does not disagree that the Department’s investigatory failures through early 2023 raise concerns. In 2023 the City overhauled Department policy to address internal investigation failures. As a result, the Department’s internal investigation procedures throughout 2024 are significantly improved from early 2023. Therefore, the City asks that the Court take into account the timing of those failures and the context in which they occurred and leave open the possibility that the Department’s changes in practice may ultimately have the intended impact on the integrity of internal investigations.
A. The City Has Addressed the Failures that Occurred in 2022 and Early 2023 (Task 5).
The measures that the City implemented in 2023 have substantially improved internal investigations. In April 2023 the Department employed practices to immediately prevent investigatory deficiencies. Dkt. 1579, Joint Case Mgmt.
Statement 2-3 (Apr. 4, 2023). By November 2023, the City completed formal changes Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 45 of 71 1 2
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to Department policy including IAD 23-01, Internal Affairs Policy and Procedure Manual (rev. Nov. 2023); TB V-T.01, Internal Investigation Procedure Manual (rev.
Nov. 2023), Department General Order M-04.1, Criminal Investigation of Department Members and Outside Sworn Law Enforcement Personnel (rev. Nov. 2023), and the Criminal Investigation Division Investigative Training Program 23- 01 (Sept. 2023). Dkt. 1622, Joint Case Mgmt. Statement, supra at 18-20.
Because of the chronological and substantive overlap between the investigation referenced in the Monitor’s Eighth NSA Period Report and the vehicle collision and elevator discharge incidents, the 2023 policy revisions addressed investigatory failures across all three cases. The revisions took a full year to finalize and involved input from all stakeholders. The revisions were thoughtfully and deliberately made to ensure rigor and accountability in both administrative and criminal internal investigations. See Dkt. 1622, Joint Case Mgmt. Statement, supra at 18-20.
The City’s work in 2023 significantly improved the Department’s internal investigations processes. Because internal investigations often take months to complete, however, investigatory failures may not be identified in real time. Thus, the City appreciates that more time is necessary before the we can confidently assess the results of the City’s work to strengthen internal investigations.
B. The City Embodies the Spirit of the NSA Even As it Struggles to Sustain Long-Term Task 5 Compliance.
1. The City Cares About the Integrity of Internal
Investigations and Accountability.
In the vehicle collision and elevator discharge incidents, the Monitor directed the outside investigation. In the investigation referenced by the Monitor in its most recent report, the City directed the investigation and engaged an independent investigator. Additionally, the City’s independent civilian internal investigation team (CPRA), conducted its own parallel investigation. While this in no way excuses the City’s failures in the initial internal investigation, the fact that the City itself Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 46 of 71 1 2
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(CPRA) investigated the failures as well as directed a parallel independent investigation without Monitor intervention or direction is a step in the right direction and demonstrates the City’s commitment to integrity in internal investigations.
2. The City Demonstrates its Commitment to Ensuring Police Accountability by Empowering Civilian Oversight.
In the past year, the City has followed new practices to improve communication about internal investigations with the Commission and CPRA. See Dkt. 1579, Joint Case Mgmt. Statement, supra at 20-21, 48. These practices include advising the Commission and CPRA of any new proposals to hire outside investigators to conduct internal investigations and providing status reports on subjects and misconduct allegations under consideration in any outside investigations already in progress. Id. at 21. In addition, any new third-party investigation contract must include a term that allows the Commission and CPRA to obtain status updates directly from the investigator (the content of updates may be limited to ensure independence of any parallel ongoing or anticipated CPRA investigation). Id. Having these new practices on place—and adhering to them— facilitated CPRA’s ability to conduct an effective parallel investigation of the Department’s initial deficient investigation.
The City is also continuing longer-term efforts to further empower CPRA as a means of improving accountability in investigations of Department members. In 2021 the Oakland Reimagining Public Safety Task Force recommended transferring most of IAD to CPRA. Reimagining Public Safety Task Force Final Report and Recommendations (Apr. 2021) 13, 217-18,
https://www.oaklandca.gov/documents/reimagining-public-safety-task-force-report- and-recommendations-public-safety-committee-4-13-21 (last visited Aug. 25, 2024).
In May 2021, City Council ordered the City to “explore possible transfer” of most of IAD to CPRA. See Oakland City Council Resolution No. 88607 (Jul. 13, 2021), Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 47 of 71 1 2
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available at https://oakland.legistar.com, File No. 21-0350. See also Dkt. 1604, Joint Case Mgmt. Statement 48 (Sep. 19, 2023).
As previously shared with the Court, in 2023 the City Council approved a proposal to hire a City Administrator employee to help plan for and assist with the transition from IAD to CPRA and provide an additional layer of civilian review of high-profile and serious IAD investigations. Id. at 26. Ultimately, the position was not filled. Instead, in or about June 2024, the City hired consultants to assess the practical aspects of transferring IAD responsibilities to civilian oversight (CPRA).
The consulting team is led by attorney Andrew Lah, Managing Partner at Moeel Lah Fakhoury LLC, and police auditor Russell Bloom. The City understands that there is much to discuss about the practical aspect of any transition, budgetary requirements, and the impact on NSA compliance. The City will keep the Monitor and the Court updated on its progress on this long-term project.
3. The Department’s Internal Introspection Demonstrates its Commitment to Integrity and Consistency in Internal
Investigations.
Chief Mitchell, Bureau of Risk Management Deputy Chief Angelica Mendoza, and Office of Internal Accountability Captain Bryan Hubbard have read the reports of investigation completed by CPRA and the City’s independent investigator to understand the Department’s investigatory failures and prevent such failures from recurring. The Department’s review aims to determine lessons learned from these particular investigations as well as taking a broader view to determine lessons learned from the Department’s repeated failures between 2021 and 2023 (also encompassing the Instagram, vehicle collision, and elevator discharge investigations). The Department is committed to rooting out the flaws in the system that foster superficial or unprincipled investigations and ultimately enable the recurring failures.
The City is forced to be circumspect in addressing the investigatory failures referenced in the Monitor’s Eighth Period Report. Pursuant to law the City cannot Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 48 of 71 1 2
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discuss the factual details of these confidential internal investigations. Cal. Penal Code §§ 832.7 & 832.8. While the City agrees that the online media reports cited by plaintiffs’ counsel are in the public domain, the investigation reports themselves are not in the public domain. Media reports are not proof of the truth of the matters asserted therein. If plaintiffs’ counsel were to say that they know the details reported to be true because they reviewed confidential reports, that would be a violation of the protective order. As a technical matter, discussing and attaching media reports may not violate the protective order. However, doing so opens the door for plaintiffs’ counsel to confirm facts reported by the media and thus circumvent the protective order. Moreover, regardless of plaintiffs’ counsels’ intent, including such discussion of media reports further confuses matters for the public by making it appear that the facts reported by the media are true and taken within the proper context simply because they appear in a court filing. In conclusion, the media reports themselves are not relevant and the parties are otherwise legally prohibited from disclosing confidential personnel information. Therefore, any discussion of the facts in the confidential reports of investigation is inappropriate.
C. The Department Maintains an Effective, Sustainable Process to Monitor and Ensure Consistency of Discipline (Task 45).
The City has worked with the Monitoring Team and Stanford researchers for five years to build and effectively use a process to detect and eliminate discipline disparity. The Department’s mandatory data analysis program has proven successful in allowing the Department to identify and eliminate disparity in investigation outcomes and discipline. The Department’s 2023 data did not reflect any disparity in case outcomes or discipline.17
17 The City uses the term “disparity” interchangeably with “statistically significant differences.” Statistical significance is a measurement of how likely it is that the difference between two groups (e.g., race, gender, rank) occurred by chance or occurred because the two variables are actually related to each other. Put another way, it measures whether the outcomes are linked to a variable (e.g., race), versus whether the outcomes occurred randomly.
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Despite working hand in hand with the Department and encouraging the development of a sustainable analytical process to identify and address disparity, the Monitoring Team now suggests that such efforts do not count toward real cultural change. Eighth Period Report, supra at 15 (“[T]he Department’s efforts continue to be more in the form of studies and analyses instead of real cultural change.”) The City challenges that notion. Culture change is complex and multifaceted and involves a range of strategies. Among those strategies is allowing Department members access to objective facts and data across all investigation outcomes and discipline to give them all the ability to make their own observations about discipline equity beyond one-off anecdotes and the rumor mill. Moreover, the Department’s analytical process has resulted in actual changes in Department training, policy, and operations.
In 2023 as the result of the Department’s annual study of case outcomes and discipline, the City revised DGO M-03, Complaints Against Department Personnel and Procedures (revised by Special Order 9213 on Dec. 5, 2023). The Department also identified inconsistency in how corrective action is documented in Supervisory Notes Files (SNFs). Consistent SNFs foster more efficient reviews of corrective action, facilitate identification of potential bias or disparity, and support the appropriate assessment of behavioral patterns. SNFs are typically not warranted for members who have exhibited patterns of misconduct. See Dept. Response to OIA’s 2023 Internal Investigation Outcome and Discipline Study 2 (Jun. 14, 2024), https://www.oaklandca.gov/documents/2023-internal-investigation-outcome-and- discipline-report-2 (last visited Aug. 11, 2024).
Culture change is the process of changing or adopting values, beliefs, and behaviors. Therefore, clarifying the behaviors and values the Department demands pertaining to community complaints, appropriate use of SNFs to correct misconduct, and consistent interpretation and application of policy is “real culture change.”
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The City previously contended that it was in substantial compliance with Task 45. Dkt. 1622, Joint Case Mgmt. Statement, supra at 21-25. The City has not changed its position. But to the extent that Task 45 is “completely intertwined” with Task 5 (Dkt. 1630, Jan. 23, 2024 Court Tr. 5:5-7), the City understands that compliance with these two tasks may rise and fall together.
The City is optimistic that based on its 2023 reforms, elimination of the discipline disparity observed in 2022, and long-term compliance on all Task 5 subtasks, that it will regain an in-compliance assessment by the Monitor on Tasks 5 and 45 in due course. The City understands that because internal investigation failures have in many cases been revealed many months after they occurred, more time is necessary before we can assess the results of our 2023 reforms with confidence.
CONCLUSION
The City’s accomplishments demonstrate that it is capable of and committed to sustaining substantial compliance with all NSA tasks. The City appreciates the Court’s time and guidance and looks forward to further discussing the foregoing issues at the upcoming Court hearing.
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THE OAKLAND POLICE COMMISSION’S STATEMENT18
I. Introduction
The Oakland Police Commission (“Commission”) welcomes the opportunity to share the community’s perspective on the status of the Oakland Police Department’s (“OPD” or the “Department”) readiness to transition from court oversight. Marked by its civilian leadership and its commitment to the community it serves, the Commission stands as a distinctive oversight body that represents the formal community voice in matters concerning OPD oversight.
During the Negotiated Settlement Agreement (“NSA”) Case Management Conference (“CMC”) held on January 23, 2024, this Court asked all NSA stakeholders to respond to the question of “whether [it is] appropriate to end the monitorship …, to change its form or to … maintain the status quo.” (CMC Transcript at 6:5-7). Some months later, the Court similarly asked the stakeholders to “provide a more knowledgeable perspective about the need for or future of federal court oversight (either continuing the monitorship, revising it, or dissolving it).” Order Continuing Case Management Conference, Delphine Allen v. City of Oakland (June 4, 2024).
The Commission has considered the Court’s question thoroughly. In 2012, this Court appointed a Compliance Director tasked with addressing the deficiencies that led to the Department’s noncompliance and developing a plan for facilitating sustainable compliance with all outstanding tasks. The Commission requests that the Court consider separating the Monitor and Compliance Director roles as originally envisioned and executed. The community, through the Reimagining Public Safety Task Force, also recommends that same model: separate Monitor and Compliance Director roles. This recommendation highlights one of the many
18 Counsel for the Oakland Police Commission provided the City’s counsel with this statement from the Oakland Police Commission for inclusion in the court filing pursuant to the Court’s January 24, 2023 request for the Commission’s perspective.
The Oakland Police Commission’s authority arises from Section 604 of the City’s Charter.
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proposals the Commission makes within this document.
While the Commission applauds the improvements and successes of OPD’s compliance to date, several obstacles must be overcome before an end to court monitorship would be prudent. The Commission identified the following essential areas for improvement which still need to be addressed before ending court oversight:
• Stabilize Incoming OPD Leadership
• Strengthen Oakland Police Commission Capacity
• Improve Stakeholder Communication and Cooperation
• Change OPD Culture
• Sustain Compliance
Of these, the most important and most difficult is ongoing OPD resistance to culture change. Recounting the City saying that it would be in compliance by December 31, 2005, the distinguished jurist Thelton Henderson, overseeing the NSA, said in 2010, “Today we have a new Chief, a new monitoring team and the benefit of five years time... Yet I am unconvinced that the promise of change is any more real today than it was then.” ALI WINSTON AND DARWIN BONDGRAHAM, THE RIDERS COME OUT AT NIGHT 272 (2023).
Ongoing and chronic cases of misconduct, scandals, and cover ups in the ensuing years prompted current NSA Judge William Orrick to comment that “[i]t’s this lack of integrity, this culture that plays favorites, that undercuts constitutional policing.” Natalie Hanson, Judge Narrows Federal Monitoring of Oakland Police Department Despite Concerns, COURTHOUSE NEWS (April 11, 2023) (https://www.courthousenews.com/judge-narrows-federal-monitoring-of-oakland- police-department-despite-concerns/).
Independent Monitor Robert Warshaw’s most recent Report shows NSA Task 5, Complaint Procedures for IAD, is not in compliance. Following the investigative findings of both the Community Policing Review Agency (“CPRA”) and an outside Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 53 of 71 1 2
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agency, Warshaw’s Report notes that “[b]oth investigations resulted in serious sustained findings and discipline and revealed systemic deficiencies in the Department. Deficiencies in internal investigations have unfortunately repeated themselves and need to be rectified. We find this to be both serious and troubling.”
WARSHAW, EIGHTH NSA SUSTAINABILITY PERIOD REPORT OF THE INDEPENDENT MONITOR FOR THE OAKLAND POLICE DEPARTMENT 16 (August 2, 2024).
The Commission’s judgment that there is room for improvement in OPD’s compliance with the NSA does not signal that the Commission believes that the OPD should remain under monitorship for the long-term. However, in the short- term, the Department must address these challenges for an exit from court monitorship into full civilian oversight to be feasible.
II. Charting the Path
A. Stabilize Incoming OPD Leadership.
At the time of the January 23, 2024 CMC, the City of Oakland (“City”) had not chosen a new chief to lead the OPD. Since then, the Commission worked to pare down potential candidates. The Commission hosted a public forum for community members to hear from the candidates and share their opinions with the Mayor about what they wished to see from a new chief. The Commission presented a slate of four highly-qualified, diverse candidates on March 1, 2024, on time and as promised. On March 22, 2024, the Mayor announced the selection of Floyd Mitchell as the new Chief of the Oakland Police Department. The Commission is proud to have brought only the most qualified candidates to the City’s attention and looks forward to working with Chief Mitchell to achieve the constitutional policing and reforms required to ensure fairness and justice for all the residents of Oakland.
With the appointment of a new chief, the OPD entered a transitional phase.
Most of the Chief’s high-level command staff retired soon after his appointment and, like any new chief from outside of Oakland, he will need time to acclimate, understand, and commit to the constitutional policing and civilian oversight Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 54 of 71 1 2
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objectives overseen by the NSA and supported by independent authority of the Oakland Police Commission. While the community is confident that Chief Mitchell is up to the task, the Commission does not expect an immediate resolution to the outstanding issues. Dissolving the monitorship right now would not benefit the community as OPD transitions to new leadership.
B. Strengthen Oakland Police Commission Capacity.
Oakland’s Police Commission is a more recent participant in OPD’s movement toward reform. Created by an overwhelming majority of Oakland voters in 2016, the Commission is comprised of community members and operates independently from the City of Oakland. As a volunteer, community-led body, the Commission is authorized to resolve disputes regarding police misconduct allegations. The Commission values and actively seeks community input and champions community oversight priorities. Since the Court’s January CMC, the Commission had several significant successes, including:
• Collaborated with the Department to modify its policies to increase to 45 the number of pre-disciplinary due process (“Skelly”) hearing officers available to address the backlog of 171 Skelly hearings in an effort to decrease the $3 million per year spent on officers on paid administrative leave; • Sustained the first-ever racial profiling allegation of police misconduct through its Community Police Review Agency (“CPRA”);
• Prepared a racial profiling cultural accountability statement; • Created a reporting template to guide the OPD in tailoring its twice monthly reports to the Commission toward matters of constitutional policing oversight within the Commission’s jurisdiction, rather than sharing general information on local crime;
• Directed the OPD to redefine “pattern” for the purposes of identifying repeated instances of police misconduct;
• Addressed the 192nd and 193rd Police Academies’ graduations; and Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 55 of 71 1 2
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• Attended the Orientation of the 194th Police Academy.
These accomplishments aside, the Commission found itself with a vacancy, with Inspector General Michelle N. Phillips announcing her resignation to lead Minneapolis’ Department of Civil Rights. The Office of the Inspector General (“OIG”) is responsible for program and performance-based audits, evaluations, inspections, and reviews of both the OPD and the Commission’s CPRA to reduce instances of racial profiling and discriminatory policing practices. Inspector General Phillips takes with her a depth of experience about the OPD and the Commission’s essential role in civilian oversight. While the Commission is far along in the hiring process, the fact remains that the next Inspector General (“IG”) will have large shoes to fill. Once the NSA sunsets, the OIG will take responsibility for overseeing OPD’s ongoing compliance with the NSA’s 52 Tasks. The new IG will need time to acclimate, understand, and commit to the constitutional policing and civilian oversight objectives overseen by the NSA and supported by independent authority of the Oakland Police Commission.
Even once the new IG begins, the OIG will face an additional challenge:
Oakland finances. Although the City of Oakland regularly experiences deficits, the current budget shortfall affects the Commission’s ability to perform its duties.
Recently, the Commission sought to request the IG to conduct a review audit of OPD’s compliance with NSA Tasks 5 and 45 and provide any necessary policy recommendations specifically about OPD and CPRA’s investigation process and procedures with regard to Internal Affairs Case No. 23-04. The IG responded that she could not coordinate the review audit because the City had not funded the OIG’s audit function. As this Court is aware, the Monitor found the Department out of compliance with Task 5. The inability to audit the associated investigation (even its own CPRA investigation) stymies the OIG’s – and therefore the Commission’s – power to aid the OPD in reaching and sustaining NSA compliance.
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The Commission’s Community Police Review Agency (“CPRA”) ensures vigorous police oversight by providing independent investigations of community members’ allegations of misconduct against sworn OPD officers. Supervised by the Commission, the CPRA will also serve as the body that investigates OPD officer misconduct, should the Department’s own Internal Affairs Division be abolished.
Due to City budget deficits, CPRA’s allocated staff positions are frozen, threatening the pace at which it can intervene as the impartial investigative body for OPD misconduct when monitorship ends.
Despite these setbacks, the Commission is strengthening its processes to perform its duties as effectively as possible as it prepares for the NSA’s completion.
As always, the community’s voice is vital to these efforts. The Commission’s Enabling Ordinance Ad Hoc Committee endeavored to resist the City Council’s proposed revisions to the Oakland Municipal Code that would strip fundamental powers from the Commission. Along with the Commission, a small team of dedicated community members on the Ad Hoc Committee has labored to preserve the Commission’s powers, remove outdated terms, and propose new, clarifying language.
In recent months, the Commission has also been the target of additional proposed changes. Several of its central functions (including the oversight of the OIG and its authority to weigh in on the hiring and termination of the Chief of Police) were marked for repeal by a City Council Charter amendment. In the wake of substantial community outrage, the authoring Councilmember withdrew the proposal. This result demonstrates the Oakland community’s continued commitment to strong civilian oversight of the OPD and its intention to guard the authority granted the Commission.
The Commission routinely strives to peel back the layers of OPD culture. In a recent report before the Commission, OPD advised that sworn officers had been on paid administrative leave for one to two years while they awaited the assignment of Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 57 of 71 1 2
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a Skelly Officer and/or an attorney of their choice to represent them. OPD reported that, because Skelly hearings have no deadline, these officers could remain on administrative leave indefinitely at an annual cost of $2.9 million to the Department. Until the Commission called attention to the wastefulness of allowing officers to remain on open-ended paid leave rather than zealously pursuing Skelly hearings, the Department appeared oblivious to the problematic nature of squandering millions of dollars in OPD funds.
Despite (or due to) the Commission’s successes, the Office of the City Attorney continues to refuse the Commission access to essential investigative documents necessary to assess the Monitor’s conclusion that:
“[T]he Department is out of compliance with Task 5, following the findings of investigations conducted by both the Community Police Review Agency (CPRA) and an outside investigator into the actions of senior members of the Department with regard to an earlier IAD investigation. Both investigations resulted in serious sustained findings and discipline and revealed systemic deficiencies in the Department. Deficiencies in internal investigations have unfortunately repeated themselves and need to be rectified. We find this to be both serious and troubling.”
WARSHAW, EIGHTH NSA SUSTAINABILITY PERIOD REPORT OF THE INDEPENDENT MONITOR FOR THE OAKLAND POLICE DEPARTMENT 16 (August 2, 2024).
Charter Section 604 (f)(2) authorizes the Commission to access the following documents: “[a]ll Department files and records, including the Department's Internal Affairs Division files and records, related to sworn employees of the Department, in addition to all files and records of other City departments and agencies related to sworn employees of the Department, as IAD, including, but not limited to, the same access to electronic data bases as IAD as permitted by law.” The inability to access the IAD and CPRA investigative documents as authorized by the aforementioned Charter section prevents the Commission from executing its duty of due diligence to review and ensure that OPD has not engaged Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 58 of 71 1 2
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in disparate discipline under Task 45. In fact, the City Attorney’s actions deny the Commission the opportunity to review the adequacy of its own CPRA investigation under Task 5. Finally, the Commission is prohibited from reviewing the work product of its direct report, the CPRA Director.
Although it has accomplished much, the Commission could achieve even more if it were fully staffed. Due to City budget constraints, the Commission faces an uphill battle to receive the administrative staff positions necessary to support its mission. Long-term Commission vacancies similarly undercut the Commission’s ability to achieve its objectives. To accomplish its goals, the Commission needs a full slate of active Commissioners. Without the requisite seven Commissioners and two alternates, the current Commissioners must labor twice as hard to discharge the Commission’s jurisdictional obligations. The Commission can function at full capacity only when the selection authorities prioritize filling the existing Commission vacancies.
This Court recognizes that, not only the OPD and the City, but also the Commission (and its divisions: OIG and CPRA) are “integral to the success of the NSA.” (CMC Tr. 43:15-16). Despite great effort and progress, the Commission’s OIG and CPRA, along with the OPD, are currently in a state of flux. The Commission expects each entity will continue to build on their foundations as the OPD turns into the final stretch of NSA compliance.
C. Change OPD Culture.
This Court observed the need for the City to demonstrate that “the OPD has embraced the spirit as well as the letter of the NSA.” (CMC Tr. 6:8-11). More than any gauge, an internal transformation in culture will indicate that OPD is prepared to move forward without backsliding once the Court terminates its oversight.
Although the NSA has been the greatest driving force for improvement in OPD’s standards, the Department continues to struggle with a culture that lacks Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 59 of 71 1 2
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transparency, accountability, and integrity. Past incidents of racial profiling, an absence of empathy, and lack of professionalism eroded public trust significantly, and the repercussions linger within the community. To align the Department’s practices with the letter and spirit of NSA compliance, a substantial cultural shift remains necessary.
The Commission recognizes that the cultural challenges embedded in NSA Tasks 5 and 45 transcend policy adjustments and a “moment-in-time” compliance.
Rather, true compliance is rooted in “sustainability and organizational culture.” (Former Interim Chief Darren Allison, CMC Tr. 13:12-13). The Commission’s recommendations for cultural change within the Department stand as a testament to our belief in the power of community-led change and our collective commitment to achieving a future where the OPD’s culture aligns with the values of the Oakland community.
Viewing the OPD’s culture from the public’s perspective, the opportunity for positive transformation is evident. The Court consistently emphasized the importance of OPD’s evolution to an entity that can self-regulate, hold itself and its officers accountable, and uphold the principles of integrity and constitutional policing. Specifically, in April 2023, the Court observed that there was “a cultural inability of OPD to police itself, to hold itself and its officers accountable without fear or favor; a culture that lacks integrity; a culture that plays favorites and protects wrongdoers that undercuts the foundations of constitutional policing.” These observations highlighted several facets of the current culture that continue to require attention:
1. Addressing Historical Challenges: Acknowledging a historical backdrop of racial profiling and racial disparities, which regrettably persist in certain aspects of the department’s culture.
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2. Fostering Empathy: Encouraging the development of empathy towards the community that OPD serves, recognizing that true understanding and compassion are essential.
3. Upholding Professionalism: Elevating professionalism within the ranks to ensure that officers represent the highest standards of law enforcement.
4. Rebuilding Trust: Taking deliberate actions to rebuild trust within the community, as past actions have, at times, contributed to a sense of mistrust.
To promote ethical behavior within the OPD’s culture, the integration of comprehensive training programs that include the Department’s historical context and current ethical standards is mission critical. Such training should be mandatory for all officers, including non-sworn personnel, and should be a significant component of promotional exams and field training.
The underlying goal here is to transform OPD’s culture by promoting transparency and fairness in discipline procedures. By thoroughly examining and addressing these concerns, OPD can ensure that instances of policy violations are met, not with officers evading consequences through policy loopholes, but with appropriate disciplinary actions that dispel any perceptions of leniency. The OPD should not be distrustful of oversight – whether by the Monitor or the Commission – and any corresponding discipline. Culture change is more difficult to achieve when accountability is seen as punitive. Only when accountability and discipline are viewed as restorative (providing recompense to the injured community after which the offender is offered a second chance) will sworn officers welcome transparency and a collective desire to improve behavior.
The enhancement of discipline policies and the discipline matrix is not about punitive measures, but rather upholding the highest standards of conduct and sending a clear message that officers will be held accountable for misconduct.
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Structural disciplinary changes, rather than mere appeals to morality and ethics, will ensure that officers modify their behavior. This approach fosters a culture of accountability where commanding officers feel empowered to administer appropriate discipline, and all members of OPD understand the importance of adhering to policies and ethical guidelines. As discipline is consistently and fairly applied, it acts as a deterrent against future policy violations. By eliminating ambiguity and ensuring that consequences align with the severity of the misconduct, OPD can pave the way for a culture defined by responsibility and integrity.
The OPD should conduct department-wide training to all staff, sworn and non-sworn, on every high-profile scandal and major failure since the NSA began.
This training should include the historical facts, the violations of policy, the ethical problems underlying those violations, and the changes to policy and practice that have resulted from officer misconduct.
Trainers should be:
• Qualified, credentialed, non-credentialed, and/or have lived experience with the Department and/or from the community to teach the subject matter; • Reputable with a demonstrated track record;
• Free of conflicts of interest;
• Intergenerationally representative;
• Gender representative; and
• Racially-inclusive.
While this list is non-exhaustive, the following non-OPD source experts are qualified to develop an integrated and comprehensive training curriculum:
• Jennifer Eberhardt: author of previous studies and reports on the OPD and Co-Director of the Stanford SPARQ program.
• Keith Ellison, Minnesota Attorney General and author of BREAK THE WHEEL:
ENDING THE CYCLE OF POLICE VIOLENCE.
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• Jim Chanin and John Burris, Plaintiffs’ Attorneys in the Delphine Allen v.
Oakland case.
• Ali Winston and Darwin BondGraham, authors of THE RIDERS COME OUT AT NIGHT.
• Darlene Flynn, Executive Director of the Race and Equity Department in the City of
Oakland.
• Department of Violence Prevention and Community-Based Violence Interrupters.
• Kevin Grant, Department of Violence Prevention Coordinator. • Reygan Cunningham, Co-Director at The California Partnership for Safe Communities,
former City of Oakland Ceasefire Project Manager.
• Pastor Michael McBride, Live Free USA.
• Family Violence Law Center.
• Reimagining Public Safety Task Force Report recommendation #32 - MOR and
Discipline Matrix both need to undergo a comprehensive update. • Contact person: Christina Petersen ([email protected]), OPD Organization and Culture, Accountability/Discipline WG. • Equal Justice Society.
• Asian Law Caucus.
• El Centro Legal.
The Oakland community is a critical partner that the OPD must consider at every point in training development. Community-designed and implemented training modules, specifically focused on impressing upon incoming recruits the need to reshape the department’s culture, will ensure that the trainings are Case 3:00-cv-04599-WHO Document 1660 Filed 08/28/24 Page 63 of 71 1 2
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effective. To secure community engagement, OPD should implement some of these courses out in the community where direct policing occurs.
The OPD possesses valuable training modules that can be adapted to accommodate a new department-wide educational initiative for all staff. The existing smaller module for police academy recruits, featuring insights from respected figures like Jim Chanin, investigative reporters and authors Ali Winston and Darwin BondGraham, is a solid starting point. Additionally, Project Reset, a four-week course introduced in 2021 and aimed at empowering officers as culture change agents, presents a promising framework.
D. Improve Stakeholder Communication and Cooperation.
Persistent obstacles exist to securing clear paths of communication and cooperation among key stakeholders to ensure the OPD’s smooth transition from the NSA to civilian oversight. For instance, the Commission took the lead in repeatedly reaching out to the NSA parties per the Court’s January CMC directive that all stakeholders “meet and discuss whether it is appropriate to end the monitorship at that time to retain its form or to retain the status – maintain the status quo.” (CMC Tr. 6:4-7). Although disappointed that its efforts to meet about and discuss this fundamental issue were rebuffed by some and ignored by others, the Commission invited Senior Deputy City Attorney Brigid Martin to attend the July 2, 2024 meeting of the NSA Ad Hoc committee to share the City’s position on whether the Department should exit the NSA. Senior Deputy City Attorney Martin joined the meeting but would not disclose the City’s position. The Commission Chair has not been successful in scheduling regular meetings to discuss Commission matters, in general, with Mayor Sheng Thao. Only after the newest member of the NSA Ad Hoc committee brokered a meeting with the Mayor on behalf of the NSA Ad Hoc, were Commission Chair Peterson and members of the NSA Ad Hoc able to have their first meeting this calendar year with Mayor Thao.
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Such lack of coordination is evidence of troubling concerns. The failure to collaborate hinders the Commission’s ability to effectively monitor and be a partner in guiding the OPD’s progress toward the NSA goals. If indispensable stakeholders to the OPD’s transition to civilian oversight are unable to coordinate while under the Court’s watchful eye, it is unlikely that they will work together productively when the OPD is no longer subject to court oversight. Until all stakeholders are fully committed to cooperating with every partner in the goal of lasting reform, the OPD will not be ready to exit court monitorship.
E. Sustain Compliance.
The Court inquired whether the OPD is doing what is necessary to ensure that it can permanently sustain NSA compliance once court oversight ends. (CMC Tr. 12: 20-25). The Court’s inquiry strikes at the heart of the OPD’s desire to maintain compliance beyond a “moment-in-time” snapshot.
The NSA is responsible for the greatest improvements in OPD culture to date. However, NSA compliance should not be mere box-checking or passively moving through a specific calendar period. Instead, an enduring compliance requires that the OPD integrate the NSA’s 52 Tasks into its cultural identity and practice them every day. To date, however, there has not been a defined compliance metric or systemic data measurement to verify sustainability. The Department’s sustainability period should include an internal program that requires OPD to remain proactive in fulfilling NSA mandates. The following measures would help to create a culture of accountability and transparency to ensure the NSA reforms are fully implemented and maintained indefinitely.
1. Develop an educational campaign on the NSA and its history at all department levels, including the Academies: Every OPD employee, sworn or not, should know about and understand the NSA.
Education and awareness promote accountability that endures.
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Desired Outcome: Reduction in fear among officers of being chastised for taking actions necessary to shift culture and move OPD towards NSA compliance.
2. Address oversight resistance through training, education, and discipline: Oversight resistance is inherent in OPD culture and should be approached with persistent classes, training, education, and discipline.
Desired Outcome: Reduction in fear among officers of being chastised for taking actions necessary to shift culture and move OPD towards NSA compliance.
3. Analyze public complaints to identify patterns: Review all public complaints (sustained or not) to identify and address any patterns in alleged misconduct.
Desired Outcome: Continued understanding of concurrent community needs, proactively identifying and remediating those issues.
4. Assess the effectiveness of disciplinary actions: Measuring accountability by reviewing cases of administered discipline and their effectiveness.
Desired Outcome: Attention to trends and patterns around whether and how disciplinary actions shift culture, deter misconduct, and model accountability.
5. Establish an annual public assessment of police disciplinary actions.
Desired Outcome: Continued understanding of concurrent community needs, proactively identifying and remediating those issues.
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6. Ensure a fully supported Office of Inspector General: A fully staffed and supported Police Commission Office of the Inspector General equipped to take over NSA monitoring responsibilities.
Desired Outcome: Places power structures within the City and moves toward civilian oversight.
7. Reduce Civil Monetary Awards Due to Police Misconduct: Set a goal to reduce civil monetary awards to settle or pay civil judgements due to police misconduct – an estimated $57 million from 2001 to 2011 and $35 million from January 2011 to December 2021.
Desired Outcome: Budget realignment; a metric that demonstrates a culture shift.
8. Establish a Sustainability Period with Robust Metrics Gathering: An 18-month sustainability period (with quarterly CMC evaluations to include all stakeholders) will allow evaluation of OPD misconduct during two successive summers – the time period with the most citizen-police interaction.
Desired Outcome: Establishing data that can reveal whether a shift in culture has occurred.
9. Restructure Monitor Fee During the Sustainability Period:
Allow the Monitor to actively participate in the sustainability effort at a lower fee rate.
Desired Outcome: Places power structures within the City and moves closer to civilian oversight.
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10. Work Collaboratively with Stakeholders: Ensure all entities’ essential perspectives are taken into account.
Desired Outcome: A shared vision of the problem(s) and solution(s).
III. Conclusion
In January 2024, the Court requested NSA stakeholders evaluate the current and future role of federal court oversight in Oakland. After much consideration, the Commission developed a statement guided by three overarching questions:
1. Is it appropriate to end the monitorship, change its form, or maintain the status quo?
2. Has the OPD achieved NSA task compliance for a sustained period of time?
3. Has the OPD demonstrated the ability and desire to systematically and structurally make the culture changes necessary to hold itself accountable?
Having grappled with these questions, we offer the following:
• The need for a clear and defined assessment metric;
• The need for an ascertainable period of sustainability; • The need for a fully seated Police Commission, IG and CPRA, all supported by a
complete staff;
• The need to fill the Inspector General position;
• The need to address continued and troubling misconduct investigations; and
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• The need to assess the acclimation of the new chief of police.
For these reasons, this body recommends that the OPD enter a new and restructured 18-month sustainability period with the intent of documented, measurable cultural change. The Commission recommend maintaining the NSA until there is a sustainable change from within the rank and file of the Department.
It is our hope that with the strong civilian oversight of the Police Commission, this new period will result in permanent culture change that establishes transparency and that promotes truthfulness and accountability without fear or favor.
Respectfully Submitted,
Marsha Carpenter Peterson
Chair, Oakland Police Commission
Chair, NSA Ad Hoc Committee
NSA Ad Hoc Members:
Commissioner Regina Jackson
Commissioner Angela Jackson-Castain
José Dorado (former OPC Commissioner)
Karely Ordaz (former OPC Commissioner)
Mariano Contreras
Nikki Dinh
Deacon Reginald Lyles
Walter Riley
Rev. Dr. Jacqueline Thompson
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66 JOINT CASE MANAGEMENT
STATEMENT
Case No. 00-cv-4599 WHO
THE OPOA’S STATEMENT
Since the last Case Management Conference, Intervenor Oakland Police Officers Association (“OPOA”) has had ongoing and regular communications with members of the Oakland Police Department command staff, including Chief Mitchell regarding various operational matters which impact outstanding NSA related tasks. Those communications continue to be productive and directed toward assisting the Police Department achieve full compliance with the NSA. In addition, the OPOA has engaged in meet and confer on various policies as part of an effort to bring best practices to the Oakland Police Department.
The Police Department and OPOA members continue to confront the challenges associated with sworn staff reductions and the significant number of calls for service. The OPOA continues to work collaboratively to ensure proper staffing and advance the mission of the Police Department.
The OPOA continues to be available to all parties, including the Court, to assist in moving forward and achieving full compliance with the NSA.
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STATEMENT
Case No. 00-cv-4599 WHO
Respectfully submitted,
Dated: August 28, 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 1660 Filed 08/28/24 Page 71 of 71
EXHIBIT A
OAKLAND POLICE DEPARTMENT
NSA TASK COMPLIANCE RESPONSIBILITY CHART
AUGUST 28, 2024
Task Task Name Compliance
Accountability
1 IAD Staffing & Resources Acting Captain Gordon Dorham 2 Timeliness Standards & Compliance w/IAD
Investigations
Acting Captain Gordon Dorham
3 IAD Integrity Tests Acting Captain Gordon Dorham
4 Complaint Control System for IAD Acting Captain Gordon Dorham 5 Complaint Procedures for IAD Acting Captain Gordon Dorham 6 Refusal to Accept or Refer Citizen Complaints Acting Captain Gordon Dorham 7 Methods for Receiving Citizen Complaints Acting Captain Gordon Dorham 8 Classification of Citizen Complaint Acting Captain Gordon Dorham 9 Contact of Citizen Complaint Acting Captain Gordon Dorham 10 IAD Manual Acting Captain Gordon Dorham
11 Summary of Citizen Complaints Provided to
OPD Personnel
Acting Captain Gordon Dorham
12 Disclosure of Possible Investigator Bias Acting Captain Gordon Dorham 13 Documentation of Pitchess Responses Acting Captain Gordon Dorham 14 Investigation of Allegations on MOR Violations Acting Captain Gordon Dorham 15 Reviewing Findings & Disciplinary Responses Acting Captain Gordon Dorham 16 Support IAD Process-Supervisor/Managerial
Accountability
Acting Captain Gordon Dorham
17 Audit, Review, and Evaluation of IAD Functions Acting Captain Gordon Dorham 18 Arrest Approval and Report Review DC Casey Johnson
19 Unity of Command DD Kiona Suttle
20 Span of Control for Supervisors DC Casey Johnson
21 Members, Employees & Supervisors Performance
Reviews
DD Kiona Suttle
22 Management Level Liaison DC Frederick Shavies
23 Command Staff Rotation DD Kiona Suttle
24 Use of Force Reporting Policy AC James Beere/ DC Anthony Tedesco
25 Use of Force Investigation and Report
Responsibilities
DC Anthony Tedesco
26 Force Review Board DC Angelica Mendoza
27 OC Log and Check-out Procedures DC Frederick Shavies 28 Use of Force – Investigation of Criminal
Misconduct
DC Frederick Shavies
29 IAD Investigation Priority Acting Captain Gordon Dorham 30 Executive Force Review Board DC Angelica Mendoza
31 Officer-Involved Shooting Investigation DC Frederick Shavies 32 Use of Camcorders Not Applicable
33 Reporting Procedures for Misconduct Acting Captain Gordon Dorham 34 Vehicle Stops, Field Investigation and Detentions DC Casey Johnson 35 Use of Force Witness Identification DC Anthony Tedesco 36 Transporting Detainees and Citizens DC Anthony Tedesco 37 Internal Investigations Retaliation Against
Witnesses
Acting Captain Gordon Dorham
38 Citizens Signing Statements DC Anthony Tedesco
39 Personnel Arrested, Sued, or Served Acting Captain Gordon Dorham 40 PAS Purpose DC Angelica Mendoza
41 Use of PAS DC Angelica Mendoza
42 Field Training Program DC Angelica Mendoza
43 Academy Training Program DC Angelica Mendoza
44 Personnel Practices DD Kiona Suttle
45 Consistency of Discipline Chief Floyd Mitchell/
AC James Beere
46 Promotional Consideration Review DD Kiona Suttle
47 Community Policing DC Anthony Tedesco
48 Departmental Annual Management Reports AC James Beere 49 Monitor Selection/Compensation Chief Floyd Mitchell
50 Compliance Unit Liaison Policy Chief Floyd Mitchell/ AC James Beere
51 Compliance Audits and Integrity Tests Chief Floyd Mitchell/ AC James Beere
Compliance
Director (CD) 1
12/12/12 Order
Resolve/Reduce incidents that may involve
unjustified force, OIS, pointing of firearms
DC Anthony Tedesco
CD2
12/12/12 Order
Resolve/Reduce incidents that may involve racial
profiling and bias-based policing
DC Casey Johnson
CD3
12/12/12 Order
Resolve/Reduce Citizen Complaints Acting Captain Gordon Dorham CD4
12/12/12 Order
Resolve/Reduce high speed pursuits DC Angelica Mendoza