Civil rights attorneys: Oakland police situation is 'intolerable,' department 'backsliding'

On the heels of an audit that found Oakland police under-reported when they used force and the officer-involved shooting death of a sleeping homeless man who had a gun in his hand, two civil rights attorneys said in federal court documents they believe OPD is "backsliding" and they find the current situation "intolerable."

For its part, the city acknowledged that while there is room for improvement, there is indeed concrete evidence of a positive "cultural transformation" within the Oakland Police Department. In a statement Thursday, police officials wrote, "The Oakland Police Department wholeheartedly disagrees with the characterizations made by the plaintiffs' counsel regarding the department's status as it relates to compliance...We look forward to discussing these matters in federal court next week."

Specifically, civil rights attorneys James Chanin and John Burris highlighted racial disparities, lack of discipline and a recent audit revealing the underreporting of use of force as key elements for why they say the department is backsliding. They filed their 42-page document on Wednesday in the U.S. Northern District of California, which also contains the city's response. 

"We are moving backwards at a pretty alarming speed," Chanin said. "And just one year ago, the Oakland Police Department was close to achieving meaningful reform and concluding the NSA process….It is clear OPD has regressed on multiple fronts and across several tasks in the past year."

Oakland police under-report use of force, department finds

The NSA is shorthand for the Negotiated Settlement Agreement that the city of Oakland entered into when Chanin and Burris sued police in 2000 over the infamous Riders case, where citizens reported being beaten, kidnapped and framed by multiple police officers and the city agreed to a series of reforms. That 2003 agreement, known as the NSA, forged the way for an independent monitoring team including a court-appointed federal monitor, a compliance director and federal judge to ensure police reforms are being met. A series of 50 tasks were agreed to, and to date, seven of those tasks are out of full compliance, Five months ago, only three of those tasks were out of full compliance. This federal oversight still exists today, nearly 17 years later.  

Chanin and Burris said that they believe conditions are so "intolerable" right now that they compared the situation to 2012, when they filed a motion that put the department in receivership. And they've asked Compliance Director Robert Warshaw to take "decisive and appropriate action" to bring the department into compliance. 

Oakland officers recommended for termination fight back

Oakland Police Chief Anne Kirkpatrick declined a request for comment on Thursday, and has continually delayed several past requests by KTVU dating back to April for an on-camera interview about the prolonged court agreement. Her office referred KTVU to court documents, where the police are represented by City Attorney Barbara Parker. The city  acknowledged some of OPD's shortcomings, in the filings, but promised a bright future filled with "sustainability and further progress."

"The City sees itself at the tip of the spear pointed towards combating historical inequities in law enforcement," the city filing read. "Change has not come easy, but it is happening every day within the Department. The City—including the Department—has strong, effective leaders who are steering the Department closer each day to equitable, constitutional policing. "

The Joint Case Management statement filed with U.S. District Court Judge William Orrick highlighted several of the alleged problems and rebuttals between Chanin and Burris and the city. A hearing is scheduled for Aug. 21 at 3:30 p.m.

Federal monitor calls Oakland chief's findings 'disappointing,' 'myopic' 

Here are some of the highlights: 

Use of force: Oakland had been in compliance with its use of force policy and reporting since 2015. But in 2018, the court "re-activated" this task because there were concerns that the department was mishandling its recent use of force case and investigations. Between 2012 and 2017, the department's data showed a 75 percent drop in use of force cases, and in October 2018, those reported use of force cases dropped another 23 percent. An audit was launched to find out if this sharp drop was really true.
It turned out, they weren't, at least according to a "damning report" released last month by the police department's Office of Inspector General, Chanin and Burris wrote. The audit found that police have been "systematically" underreporting cases and not turning on their body cameras to support their positive statistics. 

City response: "Some findings were disappointing," the city conceded in its court filing. But the city also noted that the inspector general's audit shows that the department "caught and swiftly corrected a reporting problem stemming not from failing structures or corrupt culture, but from policy and training ambiguities. As when the (Independent Monitoring Team) looked at this issue, OIG's findings did not show that officers used unwarranted force." 

Conversely, the city noted that the Independent Monitoring Team found "several instances where officers exhibited considerable patience and understanding, even though they were often faced with significant verbal abuse." The city said that this is "concrete evidence of cultural transformation." 

To prevent more underreporting of such cases, the city attorney noted that policies have been rewritten and terms, such as "takedown" and "serious injury" have been redefined so that officers can write their reports more accurately. 

The department has already retrained officers on certain fronts, the city stated, including how to report pointing a gun, which is considered a use of force. The messaging about the importance of this is working, the city wrote: Reported force was up four-fold in June compared to the same time last year. 

Racial disparities: Chanin and Burris said they are "especially alarmed" that the higher percentage of African Americans and Latinos were disproportionately the subjects of these unreported use of force incidents. "This is outrageous and unacceptable," Chanin and Burris wrote. "It is unfathomable that anybody, especially the chief, could describe (these) findings…as evidence of positive cultural change or progress." 

City's response: Oakland police officers are patient and professional and their community interactions "reflect the cultural change within the department," the city stated.

Overall, the city wrote that racial and gender "equity" is key in the city of Oakland. Police are "ahead of the curve" in collecting stop data – when police officers make discretionary stops -- and is using that information to reduce disparities. In 2018, the department reduced its total stops by 37 percent from the year before, dropping the number from over 30,000 stops to 19,900. For African Americans, the city noted. In the same time period, there was a 43-percent reduction, lowering the total from 19,185 stops to 10,874. 

The city wrote: Police have "made important strides, sharply reducing its overall stops of African Americans." 

Lt. Frederick Shavies and Darlene Flynn, the city's director of Race and Equity, gave a 15-hour training to the executive team on the history of racial inequities in law enforcement starting from the civil rights era up through today. "The sessions were powerful," the city wrote. The plan is to roll out the training to the rest of the department. 

And finally, the city noted that the audit used a sampling of minority arrests that was too small to draw any statistical conclusions from.

Problem police squads: The Office of Inspector General's audit also found that four squads in particular, two patrol squads and two specialized units, had higher underreporting uses of force than the rest of the department and their superiors didn't do much to discipline, reprimand or oversee the officers who wrote up the reports. 

City response: The last two reviews were positive regarding discipline and the city has implemented everything that they have been ordered to by the court.  The patrol squads have been broken up.

Body cameras: The department's Office of Inspector General last month released a report that police had not turned on their body cameras or complied with body camera policy in 18 of 47 use of force cases reviewed.

City's response: City attorneys wrote that even if the officers didn't turn on their cameras or turned them on too late, and their superiors failed to catch this, the Officer of Inspector General did. So in fact, accountability was ensured, the city said.

Also, the department is "actively reinforcing its deep body-camera culture and practices." Officers will face progressive discipline for not complying with policy, the city said, noting that a senior officer was suspended for a month because of such a violation. 

Finally, the city wrote that the department is issuing special wristbands designed by an officer who distributed them to his team "on his own dime." These wristbands, which remind officers to activate their cameras, have now been approved for all officers. 

Oakland Black Officers Association: Chanin and Burris wrote they are concerned with issues raised by the OBOA, whose members have complained about disparate treatment for African-American recruits and trainees, such as rejecting minority candidates for little issues and considering white, but not Black, candidates who have used drugs. There has been no follow-up to these complaints, Chanin and Burris wrote, and no meetings have been scheduled to address these issues. 

City response: An anonymous survey was sent out to union members and a draft report is expected this fall. 

The department is consulting with the Race and Equity Department to "rework its recruitment system to capture all qualified candidates." The department recently did a second review of candidates who were not originally selected and as a result, more than 40 candidates were "reactivated" in that process, the city noted. The department will continue to work with the Oakland Black Officers Association, the Asian Police Officers Association, and the Latino Police Officers Association. Planning for those discussions is underway, the city wrote.

Plus, the city said, the department is planning a campaign to recruit more women.

And the department has hired an outside firm to study whether there are any disparities in how it has investigated and disciplined officers in the last five years. "The study is moving full steam ahead," the city said.

Internal Affairs investigations: OPD must complete 85 percent of its most serious, Class 1 Internal Affairs investigations within 180 days. But out of a sampling of 14, only four cases were complete within the required timelines, a 29 percent success rate. "Plaintiffs are baffled by the very low timeliness rates at a time when the number of serious complaints has dropped substantially," Chanin and Burris wrote, adding that there have been 41 fewer complaints this year than compared to 2018. 

City's response: The city has long been in compliance with this task. "Unfortunately, there was a recent case backlog, which the department has cleared," the city attorneys said. The city noted they were not aware there was "any missed opportunity to impose discipline." City attorneys added that the department has routinely stressed "high quality investigations over checking the box." 

The Executive Force Review Board: This board, conducted of three top command-level staff, had been in compliance since 2014. Their job is to conduct thorough reviews of serious use of force cases, in-custody deaths and vehicle-pursuit related deaths and injuries. But Warshaw found this board fell out of compliance with this task when they exonerated the five officers involved in fatally shooting Joshua Pawlik in March 2018 as he lay sleeping with a gun in his hand. 

Both the review board and Oakland Police Chief Anne Kirkpatrick felt that shooting Pawlik while reasonable when Warshaw and the Oakland Police Commission, comprised of citizens, felt it was not – the latter two bodies recommended the officers be fired. Warshaw said the board did not address "the apparent discrepancies" between what the officers said happened that night and what the video showed at the scene: That Pawlik wasn't reaching for his gun to shoot anyone, merely, he was waking up from a slumber and moved just like any human would. 

City's response: The city noted that in the last three reviews, the Independent Monitoring Team has agreed with the department in 94 percent of the cases, despite the disagreement in the Pawlik case. In fact, in the last five years, 17 previous boards had complied with the court settlement. In the case of Pawlik, the city noted, there is a disagreement between the chief and the board and the federal monitor in this case. 

"The fact that the chief and the (Independent Monitoring Team) see the case differently does not mean that the (Executive Force Review Board" was deficient," the city wrote.